2023.09.12

2022 (Gyo-Tsu) 144

Minshu Vol. 77, No. 6

(Civil Case)Judgment on whether a Diet member who has demanded that the determination to convoke an extraordinary session of the Diet be made pursuant to the provisions of the second sentence of Article 53 of the Constitution is allowed to make a claim for compensation by the State on the grounds of a delay in making the above determination by the Cabinet

Case seeking compensation by the State due to a violation of Article 53 of the Constitution

Judgment of the Third Petty Bench, dismissed

Tokyo High Court, Judgment of February 21, 2022

A Diet member who has demanded that the determination to convoke an extraordinary session of the Diet be made pursuant to the provisions of the second sentence of Article 53 of the Constitution is not allowed to make a claim for compensation for loss or damage under the provisions of the State Redress Act on the grounds of a delay in making the above determination by the Cabinet.
(There is a dissenting opinion.)

Second sentence of Article 53 of the Constitution, and Article 1, paragraph (1) of the State Redress Act

The final appeal is dismissed.
The costs of the final appeal shall be borne by the appellant of the final appeal.

Concerning reasons for the final appeal and reasons for a petition for acceptance of the final appeal stated by the counsel for the final appeal, ITO Makoto, et al.
I. Outline of the case
1. The outline of the facts lawfully determined by the court of prior instance is as follows:
On June 22, 2017, 72 members of the House of Councillors, a quarter or more of the total members, demanded that the Cabinet determine to convoke an extraordinary session of the Diet (hereinafter referred to as the "Determination to Convoke an Extraordinary Session") pursuant to the provisions of the second sentence of Article 53 of the Constitution.
On September 22, 2017, the Cabinet determined to convoke an extraordinary session (the 194th Session of the Diet) to begin on September 28, 2017. On the same day, although the 194th Session of the Diet was convoked, the House of Representatives was dissolved when it began, and the House of Councilors was closed at the same time.
2. In this case, the appellant, as one of the members of the House of Councillors who made the demand stated in 1 above, (i) seeks primarily a declaratory judgment that, in the case where the appellant, as one of a quarter or more of the total members of the House of Councillors, demands that the Determination to Convoke an Extraordinary Session be made (hereinafter referred to as the "Demand for the Convocation of an Extraordinary Session") in accordance with the procedures prescribed in Article 3 of the Diet Act, the Cabinet will be obliged to make the Determination to Convoke an Extraordinary Session so that the extraordinary session will be convoked within 20 days of the above demand, and, if such judgment is not rendered, seeks secondarily a declaratory judgment that, in the above case, the appellant will have status with which the extraordinary session be convoked for the appellant within 20 days (hereinafter, the action to seek either of these judgments will be referred to as "the Action for Either Declaratory Judgment"); and (ii) seeks compensation for loss or damage under Article 1, paragraph (1) of the State Redress Act on the ground that the failure of the Cabinet to make the Determination to Convoke an Extraordinary Session until 92 days after the above demand stated in 1 was made is unconstitutional and thus unlawful, and as a result thereof, the appellant could not exercise the appellant's own right as a Diet member (hereinafter, this claim will be referred to as the "Claim for Compensation for Loss or Damage").
II. Concerning the part pertaining to whether the Action for Either Declaratory Judgment may be filed, out of the reasons for the final appeal (limited to the part stating an error in the interpretation of the second sentence of Article 53 of the Constitution) and the reasons for a petition for acceptance of the final appeal
1. The court of prior instance has stated that the Demand for the Convocation of an Extraordinary Session should be made as an exercise of the power of Diet members as national government organs, and it cannot be said each Diet member has the right to make the Demand for the Convocation of an Extraordinary Session. The court then has determined that it should be said that the Action for Either Declaratory Judgment is filed on the grounds of an infringement of the above power, not for the purpose of protecting or relieving a Diet member's own right or interest, and thus does not fall under the legal dispute referred to in Article 3, paragraph (1) of the Courts Act, and held that the Action for Either Declaratory Judgment should be dismissed without prejudice.
2. However, the aforementioned determination of the court of prior instance cannot be upheld. Reasons therefor are as follows:
It is understood that the Action for Either Declaratory Judgment is the action filed, as an action for a declaratory judgment on a legal relationship under public law, by the appellant interpreting the second sentence of Article 53 of the Constitution as each Diet member having the right to make the Demand for the Convocation of an Extraordinary Session, to seek a declaratory judgment on the legal obligation owed to the appellant by the appellee or on the legal status the appellant has against the appellee, as a result of the members of the House of Councillors, including the appellant, exercising the above right pursuant to the provisions of the second sentence of the same Article. Accordingly, it can be said that such action is a dispute over whether a specific right, obligation, or legal relationship exists between the parties and can be finally resolved by the application of laws and regulations. It should be thus said that the Action for Either Declaratory Judgment falls under a legal dispute, and it has to be said that the determination by the court of prior instance that differs from the above contains an error in the interpretation and application of laws and regulations and is accordingly unlawful.
3. However, it is understood that the purpose of the Action for Either Declaratory Judgment is to prevent a disadvantage to the appellant resulting from a failure by the Cabinet to make the Determination to Convoke an Extraordinary Session in the case of members of the House of Councillors, including the appellant, making the Demand for the Convocation of an Extraordinary Session pursuant to the provisions of the second sentence of Article 53 of the Constitution in the future. It must be said that it is not clear at this moment whether the Demand for the Convocation of an Extraordinary Session will be made by a quarter or more of the total members of the House of Councillors, including the appellant, in the future, or if it is made, when the Determination to Convoke an Extraordinary Session will be made.
It thus cannot be said that the appellant faces a real risk of suffering the above disadvantage, and it should be said that the Action for Either Declaratory Judgment lacks the interest to seek a declaratory judgment and is unlawful. Accordingly, the determination by the court of prior instance concluding that such action should be dismissed without prejudice can be upheld. The appellant's arguments are solely made to the effect that matters not affecting the conclusion of the judgment in prior instance are unconstitutional and unlawful, and thus are not acceptable.
III. Concerning the part pertaining to the Claim for Compensation for Loss or Damage, out of the reasons for the final appeal (limited to the part stating an error in the interpretation of the second sentence of Article 53 of the Constitution) and the reasons for a petition for acceptance of the final appeal
1. The Constitution adopts the session system for the Diet, empowers the Cabinet to substantially determine the convocation of such sessions, and provides for the time of convocation and other conditions for ordinary sessions, extraordinary sessions, and special sessions in Article 52, Article 53, and Article 54, paragraph (1), respectively. Out of those provisions, Article 53 of the Constitution provides that the Cabinet may determine to convoke extraordinary sessions of the Diet in its first sentence, and that, in the second sentence, when a quarter or more of the total members of either House makes the demand, the Cabinet must determine on such convocation. This is understood to be that while the Cabinet is empowered to determine to convoke extraordinary sessions from the perspective of allocating powers between the Diet and the Cabinet, even if this determination is not made, a certain number or more of the members constituting each House is empowered to make the Demand for the Convocation of an Extraordinary Session for the purpose of starting a Diet Session to enable the Diet to exercise wide powers involved in the fundamentals of state affairs, and once the Demand for the Convocation of an Extraordinary Session is made, the Cabinet should be obliged to make the Determination to Convoke an Extraordinary Session. It is not understood that the provisions of Article 53 of the Constitution guarantee any right or interest of each Diet member relating to the Demand for the Convocation of an Extraordinary Session.
While the appellant argues that once an extraordinary session is convoked, Diet members may carry out activities including the initiation of bills in the extraordinary session, the Cabinet is obliged to make the Determination to Convoke an Extraordinary Session when the Demand for the Convocation of an Extraordinary Session is made pursuant to the provisions of the second sentence of Article 53 of the Constitution, regardless of what activities the Diet member who has made the Demand for the Convocation of an Extraordinary Session plans to carry out. Furthermore, the exercisable powers of a Diet member in the convoked extraordinary session do not vary depending on whether or not the Diet member is the member who made the Demand for the Convocation of an Extraordinary Session. Thus, even based on the fact that, under the provisions of the second sentence of the same Article, the intention of a minority member of either House may be reflected in the convocation of an extraordinary session, it is not understood that the second sentence of the same Article guarantees the right or interest of each Diet member relating to the Demand for the Convocation of an Extraordinary Session for the purpose of enabling such member to carry out activities in the extraordinary session convoked. It also cannot be said that a delay in making the Determination to Convoke an Extraordinary Session pursuant to the provisions of the second sentence of the same Article immediately infringes any right or interest of each Diet member relating to such member's activities in the extraordinary session convoked.
According to the above explanations, it cannot be said that any right or legally protected interest of the Diet member who has made the Demand for the Convocation of an Extraordinary Session is infringed by a delay in making the Determination to Convoke an Extraordinary Session pursuant to the provisions of the second sentence of Article 53 of the Constitution.
2. Therefore, it is appropriate to understand that the Diet member who has made the Demand for the Convocation of an Extraordinary Session pursuant to the provisions of the second sentence of Article 53 of the Constitution is not allowed to make a claim for compensation for loss or damage under the provisions of the State Redress Act on the grounds of a delay in making the Determination to Convoke an Extraordinary Session by the Cabinet.
According to the above, the determination to dismiss the Claim for Compensation for Loss or Damage by the court of prior instance can be upheld. The appellant's arguments are not acceptable.
IV. Concerning other reasons for the final appeal
The counsel's arguments of a violation of the Constitution are substantially arguments of a mere violation of laws and regulations or lack the premise of such arguments, and none of these reasons constitutes the ground as set forth in Article 312, paragraph (1) and paragraph (2) of the Code of Civil Procedure.
Accordingly, the Court unanimously decides as set forth in the main text of the judgment, except for the dissenting opinion stated by Justice UGA Katsuya.
The dissenting opinion of Justice UGA Katsuya is as follows:
Although I agree with the majority opinion stating that the Action for Either Declaratory Judgment falls under a legal dispute, I have a different opinion from the majority opinion on the interest to seek a declaratory judgment in the Action for Either Declaratory Judgment, whether the Claim for Compensation for Loss or Damage may be made, and other points. I would like to state my opinions on these points.
1. Concerning the interest to seek a declaratory judgment in the Action for Either Declaratory Judgment
(1) It can be said that activities carried out in Diet by members of the Diet including asking questions, initiating bills, and voting as representatives of the people are of the utmost importance to Diet members. If members are unable to carry out the above activities in an extraordinary session that should have been convoked under the Constitution, such inability is an extremely serious disadvantage and unrecoverable by compensation for loss or damage ex post facto. Accordingly, it is appropriate that any legal means should be available to prevent a situation from occurring where the Determination to Convoke an Extraordinary Session is not made even though the Demand for the Convocation of an Extraordinary Session has been made pursuant to the provisions of the second sentence of Article 53 of the Constitution.
It may be appropriate to use, as such legal means, a mandamus action as an action for judicial review of administrative disposition, and however, a negative theory may be established with regard to whether the convocation of an extraordinary session can be deemed as a disposition subject to action for judicial review of administrative disposition. Accordingly, it seems that an action for declaratory judgment as a substantially public law related action can be an appropriate means to resolve a specific dispute between the parties.
Then, with regard to the interest by immediate determination, there may be an opinion that this case is different in terms of facts addressed, from 2001(Gyo-Tsu)82 and 83, and 2001(Gyo-Hi)76 and 77, judgment of the Grand Bench of the Supreme Court of September 14, 2005, Minshu Vol. 59, No. 7, at 2087, or 2020(Gyo-Tsu)255, and 2020(Gyo-Hi)290, 291 and 292, judgment of the Grand Bench of the Supreme Court of May 25, 2022, Minshu Vol. 76, No. 4, at 711, and that this case cannot be argued in the same manner as the above judgments even though this case is also an action for declaratory judgment on the exercise of a right in the future.
Indeed, while the plaintiff in each of the above cases of Grand Bench judgment is the person to whom the right to vote is permanently granted, the plaintiff in this case is a Diet member, and it cannot be said that such a plaintiff permanently has status as a Diet member. Since it is publicly known that there is no dissolution of the House of Councillors and the term of office of the plaintiff as a member of the House of Councillors will expire on July 25, 2028, it is possible for the plaintiff to take part in making the Demand for the Convocation of an Extraordinary Session pursuant to the provisions of the second sentence of Article 53 of the Constitution again during the member's term of office. However, different from the exercise of the right to vote in an election, the Demand for the Convocation of an Extraordinary Session may not be made unless it is made by a quarter or more of the total members of either House. Records show, however, that in the past three years from 2020 to 2022, the Demand for the Convocation of an Extraordinary Session was made every year shortly after the close of an ordinary Diet session or immediately prior thereto. With regard to the Demand for the Convocation of an Extraordinary Session made in the fiscal year 2022, the total number of current members of the House of Councillors in the five factions that took part in making the demand is 71, which exceeds 62 as a quarter of the total of 248 members of the House of Councillors. Until 2025, in which the next election of members of the House of Councillors will be held, it is highly likely that the number of current members by faction will not change. (The facts related to the Demand for the Convocation of an Extraordinary Session in 2022, the number of current members of the House of Councillors by faction, and the time of the next election of members of the House of Councillors are publicly known.) From the beginning, the Demand for the Convocation of an Extraordinary Session is made when Diet members deem it necessary. As stated above, given that the Demand for the Convocation of an Extraordinary Session has been made consecutively in the past three years, it seems that the probability that Demands for the Convocation of an Extraordinary Session will be made in 2023 or 2024 is considerably high.
Records also show that Demands for the Convocation of an Extraordinary Session have been made pursuant to the second sentence of Article 53 of the Constitution 40 times, of which the extraordinary session has been convoked within 20 days only five times, and looking at the past three years, Determinations to Convoke an Extraordinary Session have been made well over 20 days after the Demand for the Convocation of an Extraordinary Session was made. It seems that the reason for which such a situation has occurred is that there is recognition that in cases where the Demand for the Convocation of an Extraordinary Session is made, the Cabinet has discretion in determining the time of the convocation taking into account the matters to be deliberated in the extraordinary session. As long as that is the case, even if the Demand for the Convocation of an Extraordinary Session is made in 2023 or 2024, the probability that the extraordinary session will not be convoked within 20 days seems to be considerably high. Therefore, it is thought that the interest by immediate determination can be upheld.
In conclusion, I think that the interest to seek a declaratory judgment can be upheld in the Action for Either Declaratory Judgment and such action is lawful.
(2) Subsequently, I would like to consider whether matters sought in the Action for Either Declaratory Judgment are well-grounded. The first sentence of Article 53 of the Constitution is the provision on the case of an extraordinary session being convoked at the initiative of the Cabinet (the so-called heteronomous Diet), and in this case, the time of convocation of the extraordinary session will be determined at the discretion of the Cabinet based on the circumstances such as those of preparations for the submission of bills by the Cabinet. On the other hand, the second sentence of the same Article provides that when a quarter or more of the total members of either House makes the demand, the extraordinary session will be convoked. This is the provision on the so-called autonomous Diet.
No one seems to dispute that the second sentence of Article 53 of the Constitution is not a mere advisory provision, and when a quarter or more of the total members of either House makes the demand, the Cabinet is legally obliged to make a determination on such convocation within a reasonable period of time.
Theoretically, it is possible for Diet members from the ruling parties to make the above demand. Under the parliamentary cabinet system, however, majority members in the Diet (majority members in the House of Representatives in the case of the Houses of the Diet being controlled by different parties) and the Cabinet are one body, and thus the Cabinet will consult with the ruling parties to convoke an extraordinary session pursuant to the provisions of the first sentence of Article 53 of the Constitution. It is difficult to imagine that Diet members from the ruling parties will make the Demand for the Convocation of an Extraordinary Session pursuant to the provisions of the second sentence of the same Article. It can be said that the main purpose of the second sentence of the same Article is to practically enable minority members to make such a demand to convoke an extraordinary session at their initiative. This is clear also from explanations made by Ministers of the State in the Diet where the draft amendment to the Constitution has been deliberated. Diet members elected as representatives of the people have the right to ask questions, initiate bills, vote, and otherwise act in the Diet in response to the mandate of the people. It is thought that the second sentence of the same Article grants Diet members who make a Demand for the Convocation of an Extraordinary Session a procedural right to realize the exercise of the above rights (however, such a right cannot be exercised by one member, with the exercise restricted to a quarter or more of the total members), which has the same nature as a shareholders' right to make a demand for calling of a shareholders meeting provided for by Article 297, paragraph (1) of the Companies Act or a member's right to make a request for convocation of a general assembly provided for by Article 37, paragraph (1) of the Act on General Incorporated Associations and General Incorporated Foundations. (Although Article 3 of the Diet Act provides that a demand for the convocation of an extraordinary session shall be made through the Speaker or President of either House, this is provided only from the procedural perspective of having the Speaker or President confirm that requirements for the convocation of an extraordinary session have been met, and it is needless to say that the Speaker or President does not have discretion not to submit to the Cabinet the Demand for the Convocation of an Extraordinary Session that has met the requirements.)
As stated above, when a quarter or more of the total members of either House makes the demand, the Cabinet is legally obliged to make a determination on such convocation within a reasonable period of time. There seems to be only one exception to such provision, and that is the case where there are exceptional circumstances, such as where an ordinary or special session whose opening is near at hand can secure an opportunity for discussion in the Diet in a timely manner without the convocation of an extraordinary session and accordingly, the purport of the second sentence of Article 53 of the Constitution is not disregarded, or where it becomes physically impossible to convoke an extraordinary session due to an act of God or war.
Then, what should we consider a reasonable period of time required for convocation when the Demand for the Convocation of an Extraordinary Session has been made pursuant to the provisions of the second sentence of Article 53 of the Constitution?
First, given that the point of the second sentence of Article 53 of the Constitution is to respect the so-called "minority right," that is, to enable minority members to ask questions, initiate bills, vote, and otherwise act in the Diet, Diet members may submit bills under certain requirements (Article 56, paragraph (1) of the Diet Act), the committee in either House also may submit bills related to matters under the committee's jurisdiction (Article 50-2, paragraph (1) of the same Act), and in addition, it is thought that since the monitoring of the administration is an important role of the Diet and such monitoring often serves as an important motive for the Demand for the Convocation of an Extraordinary Session, it can be said that the Cabinet is not allowed to delay making the Determination to Convoke an Extraordinary Session pursuant to the provisions of the second sentence of Article 53 of the Constitution on the grounds of preparations for the submission of bills.
Although the Constitution does not provide for the above reasonable period of time, a period of 20 days would seem to suffice. This is also shown in the fact that Article 53 of the draft amendment to the Constitution submitted by the Liberal Democratic Party provides that the Cabinet must convoke the extraordinary session within 20 days from the day on which the demand was made. Also given that the provisions of Article 101, paragraph (3) of the Local Autonomy Act have the same purport as the second sentence of the same Article, and paragraph (4) of the same Article provides that upon demand for convocation of an extraordinary session, the head of the ordinary local government must convoke the extraordinary session within 20 days from the day on which the demand was made (there is no opinion to the effect that this period is too short, which shows that these provisions have been complied with by local governments nationwide), it is thought reasonable to provide for the above period of time as within 20 days. Furthermore, also given that Article 54, paragraph (1) of the Constitution and Article 2-3, paragraph (2) of the Diet Act provide that a Diet session is required to convoke within 30 days from the date of a general election after the dissolution of the House of Representatives or the day on which the term of office of elected members of the House of Councillors begins even when members of the House of Representatives or the House of Councillors are replaced through the general election or regular election of members and it takes time to make preparations therefor, such as creating new nameplates, in the case of the Demand for the Convocation of an Extraordinary Session made pursuant to the provisions of the second sentence of Article 53 of the Constitution for which such preparations are not required, it is not unreasonable to consider that the extraordinary session is required to convoke within 20 days. (In demanding the convocation of an extraordinary session, even if a shorter period than the above reasonable period of time is specified, for example, "a demand that the extraordinary session be convoked within 10 days," it is thought that the Cabinet is not required as specified, and only has to convoke it within the above reasonable period of time).
Therefore, in the case where the appellant makes a subsequent Demand for the Convocation of an Extraordinary Session pursuant to the provisions of the second sentence of Article 53 of the Constitution, it is understood that the Cabinet is obliged to make the Determination to Convoke an Extraordinary Session so that the extraordinary session will be convoked within 20 days unless there are exceptional circumstances. Therefore, the part pertaining to the Action for Either Declaratory Judgment of the judgment in prior instance should be quashed, and the matter sought in the primary claim in the Action for Either Declaratory Judgment should be upheld to the above extent.
2. Concerning the claim for compensation by the State
(1) Article 1, paragraph (1) of the State Redress Act provides for the following requirements for the State to be held responsible for compensation: (i) action or inaction by a public employee who exercises the public authority of the State or a public entity; (ii) related to official duties; (iii) unlawfulness; (iv) intention or negligence; and (v) loss or damage caused to another person. In addition, although there is no express provision, there must be a reasonable causal relationship between the unlawful action or inaction and the loss or damage, and the loss or damage must be worthy of legal protection. I understand that the second sentence of Article 53 of the Constitution contains the purport to legally protect the procedural right of members making the Demand for the Convocation of an Extraordinary Session. From the beginning, in the interpretation of Article 1, paragraph (1) of the State Redress Act, the requirement of a third-party relationship (obligation owed to a third party in the course of duties) should not be incorporated as a requirement for unlawfulness without grounds under express provisions, and it is sufficient to argue the issue of damage from the perspective of whether any loss or damage is legally protected. Therefore, also in this case, it is unnecessary to question whether the Cabinet receiving the Demand for the Convocation of an Extraordinary Session under the second sentence of Article 53 of the Constitution is obliged in the course of its duties to convoke the extraordinary session without delay in relation to the Diet members who made the Demand for the Convocation of an Extraordinary Session. It is sufficient to question whether a disadvantage resulting from the deprivation of the opportunity to carry out activities in the Diet due to the unlawful failure of the Cabinet to convoke the extraordinary session regardless of the Demand for the Convocation of an Extraordinary Session made is worthy of legal protection.
(2) In this case, it seems that requirements (i) and (ii) have been clearly met. With regard to requirement (iii), in this case, the extraordinary session was convoked 98 days after the Demand for the Convocation of an Extraordinary Session had been made pursuant to the provisions of the second sentence of Article 53 of the Constitution, and then the House of Representatives was dissolved at the beginning of the extraordinary session convoked with no deliberation at all in the extraordinary session, and accordingly, the Demand for the Convocation of an Extraordinary Session has to be understood as having been refused. It has to be said that such response is unlawful unless the above exceptional circumstances are found. Also with regard to requirement (iv), it is not disputed also in academic theory that, when the Demand for the Convocation of an Extraordinary Session is made pursuant to the second sentence of the same Article, a period required by the Cabinet for preparations for submission of bills should not be considered and the Cabinet has the obligation to convoke within the minimum period required for clerical affairs, and accordingly, the existence of negligence also has to be recognized. While the most important duties of Diet members are to participate in deliberations, ask questions, initiate bills, vote, and otherwise act in the Diet as representatives of the people, Diet members cannot carry out activities as Diet members in the Diet during a period for which the Diet is not convoked. Accordingly, during a period for which an extraordinary session is unlawfully not convoked, Diet members are prevented from carrying out activities as Diet members, so requirement (v) is also met. In this case, it is also clear that there is a reasonable causal relationship between the unlawful inaction and loss or damage.
(3) Therefore, the only issue remains whether it can be said that this loss or damage is worthy of legal protection. In conclusion, also on this point, it seems possible to think that it is worthy of legal protection. In 2018(Gyo-Hi)417, judgment of the Grand Bench of the Supreme Court of November 25, 2020, Minshu Vol. 74, No. 8, at 2229, this Court has already held that the fact that each member of the local parliament participates in a meeting and takes part in voting should be understood not as an issue of activities as an organ of the local parliament but as an issue of exercise by each member of the member's right, and the action for revocation of disposition of suspension of attendance is subject to judicial review on the premise that such action falls under a legal dispute. What was stated in the above judgment is also applicable to Diet members in the same manner. Namely, each Diet member has the right to participate in deliberations and take part in voting in the Diet, and if a Diet member unlawfully receives a disciplinary punishment of suspension of attendance for a certain period, it is thought that the Diet member may dispute this as an infringement of this right. Whether an unlawful delay in convoking an extraordinary session or an unlawful disciplinary punishment of suspension of attendance, the common point is that it is an infringement of the right to participate in deliberations and take part in voting in the Diet.
In the case of a suspension of attendance for a certain period, it is clear that the right of the specific member subject to the disciplinary punishment is infringed. On the other hand, in the case of a delay in convoking an extraordinary session, not only the member taking part in making the Demand for the Convocation of an Extraordinary Session but also all members cannot participate in deliberations and take part in voting during the delay period. Accordingly, if the legally protected interest of the member taking part in making the Demand for the Convocation of an Extraordinary Session is infringed, questions may arise as to whether the legally protected interest of any member not taking part therein may also be infringed, and whether it can be said that such interest of the said member is a legally protected interest. However, it can be thought that a member not taking part in making the Demand for the Convocation of an Extraordinary Session does not desire to take part in deliberations in the extraordinary session early convoked, and accordingly, it cannot be said that the legally protected right is infringed, even if in the event of a delay in convoking the extraordinary session. On the other hand, although the member taking part in making the Demand for the Convocation of an Extraordinary Session desires to take part in deliberations in the extraordinary session, the member is prevented from doing so, and in that case, the legally protected interest is infringed. It is thus thought to be reasonable to distinguish between the two types of members.
(4) Taking into account the above consideration, in this case, if there are no exceptional circumstances for the delay in convoking the extraordinary session, it is thought that the Claim for Compensation for Loss or Damage should be upheld. However, the trial has been not conducted by the court of prior instance in respect of whether there were exceptional circumstances and the amount of loss or damage if such circumstances are found. Accordingly, I think that the part pertaining to the Claim for Compensation for Loss or Damage in the judgment in prior instance should be quashed and remanded to the court of prior instance for a trial on this point.

Justice NAGAMINE Yasumasa
Justice UGA Katsuya
Justice HAYASHI Michiharu
Justice WATANABE Eriko
Justice IMASAKI Yukihiko