2022.05.25

2020 (Gyo-Tsu) 255

Minshu Vol. 76, No. 4

Judgment concerning a case in which the Act on National Review of Judges of the Supreme Court is judged to be in violation of Article 15, paragraph (1) and Article 79, paragraphs (2) and (3) of the Constitution in that it completely precludes Japanese nationals overseas from exercising the right to review.

Case of final appeal filing claims including a claim to seek a declaratory judgment on the right of Japanese nationals living overseas to exercise the right to review in the national review of the Supreme Court judges and claims to seek state compensation, and incidental final appeal filing the same claims

Judgment of the Grand Bench, partially dismissed, partially quashed and decided by the Supreme Court

Tokyo High Court, Judgment of June 25, 2020

A case in which the court held as follows:

1. the Act on National Review of Judges of the Supreme Court is in violation of Article 15, paragraph (1) and Article 79, paragraphs (2) and (3) of the Constitution in that it completely precludes Japanese nationals overseas from exercising the right to review of the Supreme Court judges;

2. an action filed by a Japanese national overseas to seek a declaratory judgment that it is illegal for the State not to allow the Japanese national overseas to exercise the right to review in the next national review of the Supreme Court judges is lawful; and

3. the Diet's inaction to take legislative measures to create a system to allow Japanese nationals overseas to exercise the right to review in the national review of the Supreme Court judges is assessed as illegal in the context of the application of Article 1, paragraph (1) of the State Redress Act.

(There is a concurring opinion.)

1. (3) of the first paragraph of the judgment in prior instance is quashed.

2. The first-instance defendant's appeal to the court of second instance is dismissed with prejudice on the merits.

3. The remaining part of the first-instance plaintiffs' final appeal, the first-instance defendant's final appeal, and First-Instance Plaintiff X1's incidental final appeal are dismissed with prejudice on the merits.

4. The total court costs are divided into two parts, of which one part shall be borne by the first-instance defendant and the rest shall be borne by the first-instance plaintiffs.

No. 1 Outline of the case

1.The issues of this case include whether or not it is appropriate not to allow Japanese nationals living overseas and not having a domicile in any area of a municipality in Japan (hereinafter referred to as "Japanese nationals overseas") to exercise the right to review in the review by the people on the appointment of judges of the Supreme Court (hereinafter referred to as the "national review").

First-Instance Plaintiff X1, who is a Japanese national overseas, sued the first-instance defendant, to seek, as a principal claim, a declaratory judgment that First-Instance Plaintiff X1 has the status to be allowed to exercise the right to review in the next national review of Supreme Court judges (hereinafter the action concerning this claim is referred to as the "Action for a Declaratory Judgment on the Status"); and to also seek, as an alternative claim, a declaratory judgment that the first-instance defendant's practice not to allow First-Instance Plaintiff X1 to exercise the right to review in the next national review of Supreme Court judges for the reason that First-Instance Plaintiff X1 has a domicile overseas is in violation of the provisions of the Constitution, including Article 15, paragraph (1) and Article 79, paragraphs (2) and (3), and therefore it is illegal (hereinafter the action concerning this claim is referred to as the "Action for a Declaratory Judgment on the Illegality"). Furthermore, the first-instance plaintiffs, who were Japanese nationals overseas as of October 22, 2017, seek compensation for loss or damage against the first-instance defendant under Article 1, paragraph 1 of the State Redress Act, alleging that due to the Diet's failure to take legislative measures to create a system to allow Japanese nationals overseas to exercise the right to review (hereinafter referred to as the "overseas review system") (hereinafter this failure is referred to as the "Legislative Inaction"), they were unable to exercise the right to review in the national review of Supreme Court judges held on that day (hereinafter referred to as the "2017 National Review") and thereby suffered mental distress.

The court of prior instance dismissed without prejudice the Action for a Declaratory Judgment on the Status and upheld the claim in the Action for a Declaratory Judgment on the Illegality, whereas it totally dismissed the claims for compensation mentioned above, with prejudice on the merits.

Incidentally, Appellant X2 and Appellant X3 in 2020 (Gyo-Hi) 290 withdrew the Action for a Declaratory Judgment on the Status and the Action for a Declaratory Judgment on the Illegality for the parts related to them, during the period when that case was pending in this instance.

2. The provisions of the related laws and regulations and other related matters are as follows.

(1) The provisions of the Constitution concerning the national review of Supreme Court judges

Article 79, paragraph (2) of the Constitution provides that the appointment of the judges of the Supreme Court shall be reviewed by the people at the first general election of members of the House of Representatives following their appointment, and shall be reviewed again at the first general election of members of the House of Representatives after a lapse of ten years, and in the same manner thereafter. Paragraph (3) of the same Article provides that in cases mentioned in paragraph (2), when the majority of the voters favors the dismissal of a judge, he/she shall be dismissed. Paragraph (4) of the same Article provides that matters pertaining to review shall be prescribed by law, and following this, the Act on National Review of Judges of the Supreme Court (hereinafter referred to as the "National Review Act") was enacted.

(2) The right to review and the list of persons qualified to review

Article 4 of the National Review Act provides that persons who have the right to vote for the members of the House of Representatives have the right to review, and Article 8 of the same Act provides that the list of voters prescribed in the Public Offices Election Act which is used for a general election of members of the House of Representatives is used for a national review.

Article 19, paragraph (2) of the Public Offices Election Act provides that municipal election administration commissions are responsible for preparation and preservation of lists of voters. Article 21, paragraphs (1) and (2) of the same Act provide that the qualification to be registered in the list of voters is being a Japanese national aged 18 or over who has a domicile in an area of the relevant municipality. On the other hand, Article 30-2, paragraph (1) of the same Act provides that municipal election administration commissions prepare and preserve lists of overseas voters in addition to lists of voters, and Article 30-4, paragraph (1) of the same Act provides, among others, that the qualification to be registered in the list of overseas voters is being a Japanese national aged 18 or over who for at least three consecutive months has a domicile in the jurisdictional districts of the consul who has jurisdiction over his/her domicile with regard to the affairs concerning lists of overseas voters.

(3) Preparation of voting slips and method of voting

Article 14 of the National Review Act provides that the names of the judges subjected to the national review must be printed on voting slips, with the sections in which x marks can be written for the respective judges whose names are printed. It also provides that prefectural election administration commissions must prepare voting slips in accordance with the form attached to the same Act.

Article 15, paragraph (1) of the National Review Act provides that at a polling station, a person qualified to review must write x marks by him/herself in the sections on the voting slip corresponding to the judges whose dismissal the person favors, while writing nothing in the sections on the voting slip corresponding to the judges whose dismissal the person does not favor, and then put the voting slip into a ballot box (hereinafter this voting method is called "voting by writing the mark"). On the other hand, Article 16, paragraph (1) of the same Act provides that at a polling station, a person qualified to review must write by him/herself on the voting slip the names of the judges whose dismissal the person favors, if there are any such judges, while writing nothing if there are no judges whose dismissal the person favors, and then puts the voting slip into a ballot box (hereinafter this voting method is referred to as "voting by writing names").

(4) Public notice, etc. of the names of the judges subjected to the national review

Article 4-2, paragraph (1) of the National Review Act provides that immediately on or after either the day that is 60 days prior to the date of expiration of the term of office of the members of the House of Representatives, or the date of dissolution of the House of Representatives, whichever comes earlier, the Central Election Management Council must notify the prefectural election administration commissions of the names and other information of the judges who are expected to be subjected to the national review on the date of the first general election of members of the House of Representatives on or after the abovementioned earlier date. Article 5, paragraph (1) of the same Act provides that on the day when the date of the general election of members of the House of Representatives is publicly announced, the Central Election Management Council must give public notice in the official gazette regarding the date of the national review and the names of the judges who are subjected to the national review.

Article 4-2 of the National Review Act was added through the amendment of the National Review Act by Act No. 94 of 2016. Article 5 of the National Review Act prior to that amendment provided that 12 days prior to the date of the national review, the Central Election Management Council must give public notice in the official gazette regarding the date of the national review and the names of the judges who are subjected to the national review (among the amendment provisions contained in Act No. 94 of 2016, those amending Articles 4-2 and 5 of the National Review Act came into effect as of January 1, 2017).

3. The outline of the facts lawfully determined by the court of prior instance is as follows.

(1) A. First-Instance Plaintiff X1 is a Japanese national overseas, and was registered in the list of overseas voters at the time when the 2017 National Review was held.

B. The first-instance plaintiffs except for First-Instance Plaintiff X1 were Japanese nationals overseas at the time when the 2017 National Review was held and were registered in the list of overseas voters, and thereafter they returned to Japan.

(2) As a result of the dissolution of the House of Representatives on September 28, 2017, a general election of members of the House of Representatives was publicly announced on October 10, and the election was held on October 22, 2017. Along with this, the 2017 National Review was announced by public notice on October 10 and the national review was held on October 22, 2017.

The first-instance plaintiffs cast votes in the abovementioned general election of members of the House of Representatives, but they were unable to cast votes in the 2017 National Review because no voting slips for the review were delivered to them.

(3) A. Under the Public Offices Election Act prior to the amendment by Act No. 47 of 1998 (hereinafter referred to as the "1998 Amendment of the POEA"), Japanese nationals overseas were unable to exercise the right to vote in national elections. The 1998 Amendment of the POEA created a system to allow Japanese nationals overseas to exercise the right to vote in national elections (hereinafter referred to as the "overseas voting system"). However, under paragraph (8) of the Supplementary Provisions of the Public Offices Election Act prior to the amendment by act No. 62 of 2006 (hereinafter referred to as the "2006 Amendment of the POEA"), elections covered by this new system were limited to elections of members of the House of Representatives and the House of Councillors to be elected by proportional representation, until otherwise provided for by law.

B. On April 23, 1998, at the meeting of the Local Administration and Police Committee of the House of Councillors during the 142nd Diet session, questions about the overseas review system were raised in connection with a bill for the 1998 Amendment of the POEA. On this occasion, the Director-General of the Third Department of the Cabinet Legislation Bureau, who was a government delegate, answered as follows: the national review was supposed to be held based on the list of voters; and Japanese nationals overseas were not allowed to participate in general elections of members of the House of Representatives and resultingly they were also not allowed to participate in the national review, and this was unavoidable to that extent. Another government delegate, the Director-General of the Election Department of the Administration Bureau of the Ministry of Home Affairs, answered as follows: as the national review was conducted by voting by writing the mark, if Japanese nationals overseas were allowed to vote in the national review, the procedure to print voting slips and deliver them overseas would be conducted after the issue of public notice of the national review; on the other hand, if they were allowed to vote by the same method as the voting at the places under the management of the heads of diplomatic missions overseas under the overseas voting system based on the abovementioned bill, voting slips would have to be sent there five days prior to the election day, in which case it was almost impossible to secure a period of time for the national review and thus it was nearly technically impossible to conduct the national review by that method, so it was decided to shelve this matter at the present stage. In response to this, the committee member who raised the questions expressed his/her opinion that the National Review Act should be amended as soon as possible.

C. The judgment of the Grand Bench of the Supreme Court in 2001 (Gyo-Tsu) 82 and 83, 2001 (Gyo-Hi) 76 and 77, rendered on September 14, 2005, Minshu Vol. 59, No. 7, at 2087 (hereinafter referred to as the "2005 Grand Bench Judgment") held as follows: [i] the Public Offices Election Act prior to the 1998 Amendment of the POEA was in violation of Article 15, paragraphs (1) and (3), Article 43, paragraph (1), and the proviso to Article 44 of the Constitution because that Act completely precluded Japanese nationals overseas from voting in national elections at the time of the general election of members of the House of Representatives held on October 20, 1996; and [ii] the part of the provisions of paragraph (8) of the Supplementary Provisions of the Public Offices Election Act prior to the 2006 Amendment of the POEA, under which elections covered by the overseas voting system were limited to elections of members of the House of Representatives and the House of Councillors to be elected by proportional representation until otherwise provided for by law, would be in violation of the provisions of the Constitution mentioned above at the first general election of the House of Representatives or regular election of members of the House of Councillors to be held after the 2005 Grand Bench Judgment was handed down, at the latest.

D. Under the Public Offices Election Act after the 2006 Amendment of the POEA, elections of members of the House of Representatives to be elected from single-seat constituencies and elections of members of the House of Councillors to be elected from constituencies were also included in the scope of elections covered by the overseas voting system.

E. Under the Act on Procedures for Amendment of the Constitution of Japan (hereinafter referred to as the "National Referendum Act"), which was enacted in 2007, a system to allow Japanese nationals overseas to exercise the right to vote in the process of ratification by the people on amendments of the Constitution (hereinafter referred to as "national referendum") was established when this Act was enacted.

F. Up until now, no bill was submitted to the Diet with regard to the creation of an overseas review system.

No. 2 Concerning the reasons for final appeal stated by the counsel for final appeal in 2020 (Gyo-Tsu) 255, TATEUCHI Hisashi, et al.

1. The court of prior instance determined that the National Review Act was in violation of Article 15, paragraph (1) and Article 79, paragraphs (2) and (3) of the Constitution in that it completely precluded Japanese nationals overseas from exercising the right to review. The counsel argues that this determination of the court of prior instance contains errors in the interpretation and application of these provisions of the Constitution.

2. Article 4 of the National Review Act provides that persons who have the right to vote for the members of the House of Representatives have the right to review. As apart from this, Article 8 of the same Act provides for the list of persons qualified to review to be used for the national review, it is considered that the same Act was based on the premise that persons who are not registered in the abovementioned list of persons qualified to review are not able to exercise the right to review in actuality.

Article 8 of the National Review Act provides that the abovementioned list of persons qualified to review to be used in the national review is the list of voters prescribed in the Public Offices Election Act, which is used for a general election of members of the House of Representatives. The same Act distinguishes the list of voters and the list of overseas voters, and it does not contain any provisions in which the list of overseas voters is deemed to be the list of voters. Furthermore, the National Review Act does not contain any provisions at all regarding matters such as the method by which Japanese nationals overseas can exercise the right to review. In view of the above, it is impossible to consider that the list of voters referred to in Article 8 of the same Act includes the list of overseas voters.

Consequently, it is impossible to consider that Articles 4 and 8 of the National Review Act allow Japanese nationals overseas to exercise the right to review, and it must be said that the existing law is in the state where it lacks provisions that allow Japanese nationals overseas to exercise the right to review.

3. The Constitution clearly states in the Preamble and Article 1 that sovereign power resides with the people. In Article 15, paragraph (1), it provides that the people have the inalienable right to choose their public officials and to dismiss them, and then in Article 79, paragraph (2), it provides that the appointment of the judges of the Supreme Court shall be reviewed by the people at the general election of members of the House of Representatives, and in paragraph (3) of the same Article, it provides that when the majority of the voters favors the dismissal of a judge, he/she shall be dismissed. This system of national review is designed to allow the people to decide whether or not to dismiss a judge of the Supreme Court (see 1949 (O) 332, the judgment of the Grand Bench of the Supreme Court of February 20, 1952, Minshu Vol. 6, No. 2, at 122). In consideration of the position and power of the Supreme Court, such as it being the court of last resort with power to determine the constitutionality of any law, order, regulation or official act (Article 81 of the Constitution), the Constitution guarantees the right to review as the right of the people who are the sovereign of the nation by establishing this system. Also in light of the fact that the right to review has the same nature as the right to vote in that both rights constitute part of the power of the sovereign that is clearly prescribed in the Constitution based on the principle of sovereignty of the people, coupled with the fact that the Constitution provides that the national review shall be held when a general election of members of the House of Representatives is held, it is appropriate to consider that the Constitution guarantees the opportunity to exercise the right to review equally to all the people in the same manner as it guarantees them the right to vote.

In view of the purports of the provisions of the Constitution mentioned above, it should be said that it is in principle impermissible to restrict the people's right to review or its exercise, and that in order to restrict the right to review or its exercise, there must be grounds due to which such restriction is found to be unavoidable. Such unavoidable grounds cannot be recognized unless it is found to be practically impossible or extremely difficult, without imposing such restriction, to allow the exercise of the right to review while securing the fairness in the national review. It must be said that imposing the restriction on the right to review without such grounds is in violation of Article 15, paragraph (1) and Article 79, paragraphs (2) and (3) of the Constitution. The same applies to the case where the State's inaction to take legislative measures required to enable the people to exercise the right to review results in making it impossible for the people to exercise the right to review.

As mentioned in 2. above, although Japanese nationals overseas are unable to exercise the right to review because the existing law is in the state where it lacks provisions that allow them to exercise the right to review, they are still guaranteed the right to review by the Constitution. Accordingly, it should be said that only if it is found to be practically impossible or extremely difficult to take legislative measures required to enable Japanese nationals overseas to exercise the right to review while securing the fairness in the national review, the abovementioned unavoidable grounds exist for not taking the relevant legislative measures (for these statements, see the 2005 Grande Bench Judgment).

4. As mentioned in No. 1, 2. (3) and (4), the National Review Act provides as follows: the judges to be subjected to the national review are determined as of the date on which the general election of members of the House of Representatives is publicly announced, and on the condition that their names are announced by public notice, prefectural election administration commissions prepare voting slips on which the names of the judges subjected to the national review are printed, with the sections for writing x marks for the respective judges; and in principle, voting by writing the mark on the voting slip is adopted as the voting method. Taking such handling of the preparation of voting slips and the voting method as a given, it is impossible to deny that both before and after the amendment of the National Review Act by Act No. 94 of 2016, there were technical difficulties in operations in relation to the creation of the overseas review system, such as the difficulty in securing a sufficient period of time for Japanese nationals overseas to vote in the national review.

However, with regard to the right to vote, which has the same nature as the right to review as mentioned in 3. above, the overseas voting system was created by the 1998 Amendment of the POEA, and since the 2006 Amendment of the POEA was made following the 2005 Grand Bench Judgment, national elections have actually been held several times under the overseas voting system, which covers elections of members of the House of Representatives to be elected from single-seat constituencies and elections of members of the House of Councillors to be elected from constituencies. In view of these facts, it cannot be said that, apart from the abovementioned technical difficulties, there are any special institutional constraints in the creation of the overseas review system itself. Further in consideration of the fact that Article 16, paragraph (1) of the National Review Act provides that in the case of voting in the national review in Braille, the method of voting by writing the name is adopted instead of the method of voting by writing the mark, it is difficult to conclude that there is no room under the overseas review system to prepare a different type of voting slip or adopt a different voting method from those currently adopted, in order to avoid those technical difficulties mentioned above, and it cannot be considered that it is practically impossible or extremely difficult to take legislative measures required to enable Japanese nationals overseas to exercise the right to review while securing the fairness in the national review, irrespective of the specific method, etc. to be adopted. It follows that even if there are challenges to consider when creating the overseas review system, it is absolutely impossible to say that there were unavoidable grounds for the current situation where no legislative measures have been taken to enable Japanese nationals overseas to exercise the right to review.

Consequently, it should be said that the National Review Act is in violation of Article 15, paragraph (1) and Article 79, paragraphs (2) and (3) of the Constitution in that it completely precludes Japanese nationals overseas from exercising the right to review.

5. For the reasons stated above, the determination of the court of prior instance on the points argued by the counsel is justifiable and can be accepted. The counsel's arguments are unacceptable.

No. 3 Concerning the reasons for incidental final appeal stated by the counsel for incidental final appeal in 2020 (Gyo-Hi) 292, YOSHIDA Kyoko, et al.

1. The court of prior instance determined that the Action for a Declaratory Judgment on the Status is unlawful because the legal status relevant to the Action for a Declaratory Judgment on the Status is such a status that cannot be specifically acknowledged unless a new law is made and it is therefore not a valid and appropriate subject for which a declaratory judgment may be sought. Based on this determination, the court of prior instance dismissed without prejudice the Action for a Declaratory Judgment on the Status.

2. However, the determination of the court of prior instance mentioned above cannot be upheld for the following reasons.

The Action for a Declaratory Judgment on the Status can be understood as an action for seeking a declaratory judgment concerning a legal relationship under public law in the category of public law-related actions. It is considered that: First-Instance Plaintiff X1 alleges, as the premise, that the interpretation should be based on the purports of the provisions of the Constitution, among other things; however, after all, First-Instance Plaintiff X1 seeks a declaratory judgment that he/she has the status to be able to exercise the right to review in the next national review based on the interpretation of Articles 4 and 8 of the National Review Act.

In this case, First-Instance Plaintiff X1, who was not allowed to exercise the right to review in the 2017 National Review, seeks, prior to the next national review, a declaratory judgment that he/she has the status to be able to exercise the right to review, and this approach taken by First-Instance Plaintiff X1 is found to be an effective and appropriate means for solving a legal dispute on the existence or nonexistence of his/her status. Consequently, it must be said that the court of prior instance erred in interpreting and applying laws and regulations when it determined that the Action for a Declaratory Judgment on the Status filed by First-Instance Plaintiff X1 who is currently a Japanese national overseas is unlawful, and that determination is therefore illegal.

3. Nevertheless, since it cannot be considered that Japanese nationals overseas are allowed to exercise the right to review under Articles 4 and 8 of the National Review Act as mentioned in No. 2, 2. above, it is impossible to adopt the allegation of First-Instance Plaintiff X1 that he/she has the status to be able to exercise the right to review in the next national review based on the interpretation of these provisions. In that case, the claim in the Action for a Declaratory Judgment on the Status is groundless and should be dismissed with prejudice on the merits. However, under the principle of prohibition of disadvantageous modification, there is no choice but just to dismiss the incidental final appeal regarding the Action for a Declaratory Judgment on the Status, and hence, the illegality of the judgment in prior instance described above does not affect the conclusion.

No. 4 Concerning the reasons for final appeal stated by the counsel for final appeal in 2020 (Gyo-Hi) 291, TATEUCHI Hisashi, et al.

1. The court of prior instance determined that the Action for a Declaratory Judgment on the Illegality is lawful as an action for seeking a declaratory judgment concerning a legal relationship under public law in the category of public law-related actions. The counsel argues that the determination of the court of prior instance mentioned above contains errors in the interpretation and application of laws and regulations.

2. In the Action for a Declaratory Judgment on the Illegality, First-Instance Plaintiff X1 alleges that it is illegal for the first-instance defendant not to allow the First-Instance Plaintiff X1 to exercise the right to review in the next national review for the reason that First-Instance Plaintiff X1 has a domicile overseas, and seeks a declaratory judgment concerning such illegality. As the grounds for this allegation, First-Instance Plaintiff X1 argues that the National Review Act is unconstitutional for completely precluding Japanese nationals overseas from exercising the right to review. In that case, the Action for a Declaratory Judgment on the Illegality is considered to be an action for seeking a declaratory judgment concerning a legal relationship under public law in the category of public law-related actions.

Article 79, paragraph (4) of the Constitution provides that matters pertaining to review shall be prescribed by law. Paragraph (2) of the same Article provides that the appointment of the judges of the Supreme Court shall be reviewed by the people at the general election of members of the House of Representatives, and paragraph (3) of the same Article provides that when the majority of the voters favors the dismissal of a judge, he/she shall be dismissed. Thus, it is obvious that the basic content and other matters of the right to review, which is guaranteed to the people, are specified unambiguously under the Constitution. Accordingly, if Japanese nationals overseas are unable to exercise the right to review on a specific occasion of a national review because the National Review Act completely precludes Japanese nationals overseas from exercising the right to review, the occurrence of such circumstances can be recognized as suggesting an actual threat to the legal status that individual Japanese nationals overseas have based on their constitutional rights.

As in the case of the right to vote, the right to review is based on the principle of sovereignty of the people. It must be said that the right to review becomes meaningless unless it can be exercised on a specific occasion of a national review, and by its nature, the substance of the exercise of the right to review cannot be restored by filing a dispute after the right is violated.

In addition, if it is alleged that it is illegal for the State not to allow individual Japanese nationals overseas to exercise the right to review on the occasion of the next national review on the grounds that the National Review Act is unconstitutional for completely precluding Japanese nationals overseas from exercising the right to review, and, there is a dispute on this point, if a judgment declaring the illegality of the State's behavior becomes final and binding, it is considered that the Diet would respect the court's determination on the unconstitutionality of the National Review Act (see Articles 81 and 99 of the Constitution). Taking this possibility into account, it is found that an action to seek a declaratory judgment to that effect is an effective and appropriate means for solving that dispute. In light of the facts such as that it is obvious that the basic content and other matters of the right to review, which is guaranteed to the people, are specified unambiguously under the Constitution, as mentioned above, the above understanding is unlikely to lead to unjustly affecting the Diet's legislative discretion or other power.

Consequently, the Action for a Declaratory Judgment on the Illegality filed by First-Instance Plaintiff X1, who is currently a Japanese national overseas, can be judged to be lawful as an action for seeking a declaratory judgment concerning a legal relationship under public law. The explanation given above is considered to be in line with the purport according to which Japanese nationals overseas, who had been restricted from exercising the right to vote, are allowed to seek relief by filing an action for seeking a declaratory judgment concerning a legal relationship under public law (see the 2005 Grand Bench Judgment).

3. For the reasons given above, the determination of the court of prior instance on the point argued by the counsel is justifiable and can be upheld. The counsel's arguments are unacceptable.

Since the National Review Act is unconstitutional for completely precluding Japanese nationals overseas from exercising the right to review as mentioned in No. 2 above, it is illegal for the first-instance defendant not to allow the First-Instance Plaintiff X1 to exercise the right to review in the next national review for the reason that First-Instance Plaintiff X1 has a domicile overseas. Therefore, the claim in the Action for a Declaratory Judgment on the Illegality is well-grounded and should be upheld.

No. 5 Concerning the reasons for final appeal stated by the counsel for final appeal in 2020 (Gyo-Hi) 290 YOSHIDA Kyoko, et al.

1. The court of prior instance determined as follows: in light of the situations, etc. of the discussions on the overseas review system, it cannot be said that at the time of the 2017 National Review, the illegality of the National Review Act for completely precluding Japanese nationals overseas from exercising the right to review was obvious to the Diet; and at that time, the Legislative Inaction was not a situation that should be assessed as illegal in the context of the application of Article 1, paragraph (1) of the State Redress Act. In conclusion, the court of prior instance totally dismissed the claims for compensation made by the first-instance plaintiffs, with prejudice on the merits.

2. However, the determination of the court of prior instance mentioned above cannot be upheld for the following reasons.

(1) Article 1, paragraph (1) of the State Redress Act provides that when a public employee who exercises the public authority of the State or of a public entity has violated the legal obligation that he/she assumes in the course of his/her official duties regarding each individual among the people and thereby caused loss or damage to any such individual, the State or public entity assumes the responsibility to compensate therefor. Whether or not Diet members' legislative action or inaction is assessed as illegal in the context of the application of that paragraph is an issue of whether or not Diet members' acts during the legislative process have violated the legal obligation that they assume in the course of their official duties regarding each individual among the people, and it should be differentiated from the issue of unconstitutionality of the content of the legislation. The assessment of such acts by Diet members should in principle be left to the people's political decision, and even if the content of the relevant legislation violates any provisions of the Constitution, Diet members' legislative action or inaction should not be immediately assessed as illegal in the context of the application of that paragraph due to such unconstitutionality. Nevertheless, it should be said that in cases such as where provisions of a law restrict, without reasonable grounds, any rights or interests that are constitutionally guaranteed or protected and thus obviously violate provisions of the Constitution, and yet, the Diet has failed to take legislative measures such as amending or repealing these provisions of the law for a long period of time without justifiable grounds, Diet members' acts during the legislative process would be deemed to be in violation of the abovementioned legal obligation they assume in the course of their duties, and their legislative inaction could exceptionally be assessed as illegal in the context of the application of that paragraph. It is appropriate to consider that if it is absolutely necessary to take legislative measures to assure the opportunity for the people to exercise constitutionally guaranteed rights and such necessity is obvious but the Diet has failed to take such measures for a long time without justifiable grounds, such legislative inaction of the Diet would fall under the exceptional cases mentioned above (see 1978 (O) 1240, the judgment of the First Petty Bench of the Supreme Court of November 21, 1985, Minshu Vol. 39, No. 7, at 1512, the 2005 Grand Bench Judgment, and 2013 (O) 1079, the judgment of the Grand Bench of the Supreme Court of December 16, 2015, Minshu Vol. 69, No. 8, at 2427).

(2) As mentioned in No. 2, 3. and 4. above, the first-instance plaintiffs, who were Japanese nationals overseas, were constitutionally guaranteed the opportunity to exercise the right to review, and hence, it is considered to be necessary for the Diet to take legislative measures to assure them such opportunity to exercise the right. Although, up until now, no bill has been submitted to the Diet regarding the creation of the overseas review system, questions about the overseas review system were raised at the Diet session in connection with a bill for the 1998 Amendment of the POEA, which resulted in the creation of the oversees voting system. In addition, the 2005 Grand Bench Judgment made the determination on the constitutionality of the restriction on Japanese nationals overseas for their right to vote, and following this, the 2006 Amendment of the POEA expanded the scope of elections covered by the overseas voting system, and then in 2007, the National Referendum Act was enacted, allowing Japanese nationals overseas to exercise the right to vote in a national referendum, which has the same nature as the right to review in that both rights constitute part of the power of the sovereign that is clearly prescribed in the Constitution. Under such circumstances, even if there were challenges to consider when creating the overseas review system, these challenges were nothing more than technical difficulties in operations, and it can hardly be considered that it was practically impossible or extremely difficult to solve these challenges. Moreover, as mentioned above, although the Diet had the chance to consider the constitutional issues concerning the right of Japanese nationals overseas to review in a national review, for as long as about ten years after the 2006 Amendment of the POEA was made and the National Referendum Act was enacted in 2007, until the time when the 2017 National Review was held, the Diet had not taken any legislative measures required to create the overseas review system.

Taking into consideration all of the abovementioned circumstances, it can be said that at the time of the 2017 National Review, at the latest, it was absolutely necessary to take legislative measures to create the overseas review system and such necessity was obvious but the Diet had failed to take such measures for a long time without justifiable grounds.

Accordingly, it should be said that at the time of the 2017 National Review, the Legislative Inaction was assessed as illegal in the context of the application of Article 1, paragraph (1) of the State Redress Act.

3. The determination of the court of prior instance that is contrary to the above contains a violation of law or regulation that has clearly influenced the judgment. The counsel's arguments are well-grounded.

According to the explanation given above, the court of first instance made an appropriate determination, in which it upheld the first-instance plaintiffs' claims for compensation for loss or damage to the extent to seek payment of 5,000 yen to each first-instance plaintiff with delay damages accrued thereon, while dismissing the remaining part of the claims with prejudice on the merits.

No. 6 Conclusion

For the reasons stated above, the part of the judgment in prior instance which totally dismissed the first-instance plaintiffs' claims for compensation for loss or damage (the first paragraph of the main text of the judgment in prior instance) should inevitably be quashed, and the part of the judgment in first instance which pertains to these claims is appropriate. Hence, the first-instance defendant's appeal to the second instance is dismissed with prejudice on the merits, and the remaining part of the first-instance plaintiffs' final appeal, the first-instance defendant's final appeal, and First-Instance Plaintiff X1's incidental final appeal are all dismissed with prejudice on the merits.

Accordingly, the Court unanimously decides as set forth in the main text of the judgment. There is a concurring opinion by Justice UGA Katsuya.

The concurring opinion by Justice UGA Katsuya is as follows.

I agree with the court opinion, but I would like to express my concurring opinion concerning No. 2, No. 3, and No. 4 of the court opinion.

1. Concerning No.2 of the court opinion

It is thought that the national review system (Article 79, paragraphs (2) and (3) of the Constitution) was established as part of the right of the people to choose and dismiss public officials as prescribed in Article 15, paragraph (1) of the Constitution, in consideration of the power of the Supreme Court, which is prescribed as follows: the Supreme Court is the court of last resort with power to review the constitutionality of laws and regulations (Article 81 of the Constitution); it is vested with the rule-making power under which it determines the rules of procedure, etc. of judicial affairs (Article 77, paragraph (1) of the Constitution); and the judges of the inferior courts shall be appointed by the Cabinet from a list of persons nominated by the Supreme Court (Article 80, paragraph (1) of the Constitution). Accordingly, the right to participate in the national review can be regarded as indirect suffrage. The purport of Article 15, paragraph (3) of the Constitution is also relevant to the national review system, and the Constitution guarantees the right to participate in the national review equally as the right of the people who are the sovereign. It is thought that the State is responsible for establishing a system that enables Japanese nationals overseas as well to participate in the national review while securing the fairness in the national review. Consequently, it is in principle impermissible to restrict the right of Japanese nationals overseas to review in the national review. In the examination of the constitutionality in terms of whether such restriction is exceptionally permitted, strict examination criteria are applied in consideration of the importance of this right, and grounds due to which such restriction is found to be unavoidable may be found only if it is practically impossible or extremely difficult to establish the overseas review system while securing the fairness in the national review.

Here, I examine whether there are such grounds due to which the restriction is found to be unavoidable. Regarding this issue, the following are found: the 1998 Amendment of the POEA led to partially creating the overseas voting system, and following the 2005 Grand Bench Judgment, the 2006 Amendment of the POEA was made to expand the scope of elections covered by the overseas voting system to include elections of members of the House of Representatives to be elected from single-seat constituencies and elections of members of the House of Councillors to be elected from constituencies; the National Referendum Act enacted in 2007 allows Japanese nationals overseas to vote in a national referendum; Article 79, paragraph (4) of the Constitution provides that matters pertaining to review shall be prescribed by law, and Article 16, paragraph (1) of the National Review Act allows voting by writing the name in Braille, and thus, it was made possible to choose a voting method other than the method of voting by writing the mark; and the time required for international communication has been reduced along with the rapid advancement in information and communications technology, and the quality and quantity of information that can be communicated have been drastically enhanced. In light of these facts, it cannot be said that there are unavoidable grounds for uniformly precluding Japanese nationals overseas from exercising the right to review, and I consider that such practice must be judged to be unconstitutional.

Incidentally, Article 79, paragraph (2) of the Constitution provides that a national review is held "at the general election of members of the House of Representatives," and based on this, Article 13 of the National Review Act provides that "The voting for review is held concurrently with the voting in an election of members of the House of Representatives to be elected from single-seat constituencies, at polling stations for that election." This practice can be regarded as a reasonable method because it can reduce the people's burden to visit a polling station more than once by holding the national review on the occasion of the general election of members of the House of Representatives that is held simultaneously nationwide, and it can also reduce the administrative costs incurred for affairs related to voting and vote counting. Having said that, thinking theoretically, it cannot be regarded as an essential requirement that the voting in the national review is held and the voting results are fixed concurrently when the voting in the general election of members of the House of Representatives is held and the voting results are fixed. Consequently, it seems that even if there is a slight difference between the general election of members of the House of Representatives and the national review in terms of the date of voting or the day on which the voting results are fixed, this cannot be considered to be in violation of Article 79, paragraph (2) of the Constitution.

2. Concerning No. 3 and No. 4 of the court opinion

First-Instance Plaintiff X1 is in the state of being unable to participate in the national review and is being denied part of his/her rights as the sovereign, and for this reason, it can be said that his/her right has already been violated. As a principal claim, First-Instance Plaintiff X1 filed the Action for a Declaratory Judgment on the Status, demanding a determination as to whether he/she has the legal status to be able to exercise the right to review in the next national review. This is a dispute on specific rights and obligations or the existence or nonexistence of a legal relationship between the parties, for which final solution can be found by applying laws and regulations, and thus it may satisfy the requirements of a legal dispute. Regarding the benefit of seeking a declaratory judgment, it is beneficial for First-Instance Plaintiff X1 to obtain before the next national review a declaratory judgment that he/she has the status to be able to exercise the right to review, and hence there is the benefit of seeking a declaratory judgment.

Next, I examine the Action for a Declaratory Judgment on the Illegality filed by First-Instance Plaintiff X1 as an alternative claim. This action is not intended to demand the constitutional review of laws and regulations in an abstract meaning, but to seek a declaratory judgment that it is illegal not to allow him/her to exercise his/her right to review, and thus it can be regarded as a legal dispute. Consequently, under Article 32 of the Constitution, First-Instance Plaintiff X1 must be guaranteed the right of access to the courts in an effective manner, and this is what constitutionalism requires. The right to review would be meaningless unless it can be exercised, and by its nature, it cannot be restored by filing a dispute after it is violated. In addition, an action for invalidity of review under Article 36 of the National Review Act does not provide relief in advance. What is more, since, in the first place, Japanese nationals overseas do not fall within the category of persons qualified to review under the existing National Review Act (Article 8 of the same Act), First-Instance Plaintiff X1 may not be able to file that action. Even if a judgment upholding a claim in an action for seeking a declaratory judgment on the illegality does not have a binding force on the Diet under the Administrative Case Litigation Act, since the Supreme Court is the court of last resort with power to determine the constitutionality of any law as prescribed in Article 81 of the Constitution, and Diet members have the obligation to respect and uphold the Constitution as prescribed in Article 99 of the Constitution, First-Instance Plaintiff X1 can expect the Diet to take legislative action while respecting that judgment, and this may be effective in solving the dispute.

The 2005 Grand Bench Judgment held as follows: an action for seeking a declaratory judgment on the illegality should be deemed to be illegal due to lack of the benefit of seeking a declaratory judgment if it is possible to achieve the purpose of that action by filing another more appropriate action; in the case in question, the action for seeking a declaratory judgment on the status filed as an alternative claim can be regarded as a more appropriate action, and hence, the action for seeking a declaratory judgment on the illegality must be judged to be unlawful. It may be natural to understand this part of the holding as meaning as follows: an action for seeking a declaratory judgment on the illegality is also a legal dispute, and if it is impossible to achieve the purpose of that action by filing another more appropriate action, the benefit of seeking a declaratory judgment is found; however, in the case in question, the benefit of seeking a declaratory judgment is denied because an action for seeking a declaratory judgment on the status is a more appropriate action. That being so, in the present case where the claim in the action for seeking a declaratory judgment on the status cannot be upheld and there is no other appropriate means of relief, one can recognize the benefit of seeking a declaratory judgment by means of an action for seeking a declaratory judgment on the illegality, and this view may be in conformity with the purport of the 2005 Grand Bench Judgment. Comparing the total legal inaction, which means no legal measures have been taken to allow Japanese nationals overseas to participate in the national review, and the partial legal inaction, which means those who were Japanese nationals overseas at the time of the 2005 Grand Bench Judgment were partly unable to exercise the right to participate in national elections, although the violation of the right by the legal inaction is of a more serious level in the former case, relief can be obtained in the latter case by filing an action for seeking a declaratory judgment on the status, which is an aggressive act, whereas in the former case, if filing an action for seeking a declaratory judgment is not permitted, which is of more restrained nature from the perspective of separation of powers, this seems to be unbalanced.

Under the Justice System Reform carried out in the past, making administrative litigation more actively used was advocated as one of the major pillars of the reform. In the amendment of the Administrative Case Litigation Act by Act No. 84 of 2004, an action for seeking a declaratory judgment was clearly prescribed in Article 4 of that Act, thereby promoting the effective use of an action for seeking a declaratory judgment, which is in substance categorized as a public law-related action, as a means for obtaining relief in cases where the act in question by an administrative authority does not fall within the scope of administrative disposition. In civil litigation, it is considered to be possible to seek a declaratory judgment on the legal relationship in the past or the fact in the past if it is necessary for fundamentally solving a dispute. In the case of an action for seeking a declaratory judgment, which is in substance categorized as a public law-related action, if filing an action for seeking a declaratory judgment on the illegality of the legislative or administrative action or inaction is more effective and appropriate for solving the current dispute than contending the existing rights and obligations, it is inappropriate to consider that an action for seeking a declaratory judgment on the illegality of the legislative or administrative action or inaction is to be precluded, but rather, allowing such an action may be in conformity to the purport of the abovementioned amendment, which clearly prescribes an action for seeking a declaratory judgment, which is in substance categorized as a public law-related action.

Justice OTANI Naoto

Justice KANNO Hiroyuki

Justice YAMAGUCHI Atsushi

Justice TOKURA Saburo

Justice MIYAMA Takuya

Justice MIURA Mamoru

Justice KUSANO Koichi

Justice UGA Katsuya

Justice HAYASHI Michiharu

Justice OKAMURA Kazumi

Justice NAGAMINE Yasumasa

Justice YASUNAMI Ryosuke

Justice WATANABE Eriko

Justice OKA Masaaki

Justice SAKAI Toru