2023.11.17

2022 (Gyo-Hi) 234

Minshu Vol. 77, No. 8

(Civil Case)Judgment concerning the case in which the Court ruled that the decision made by the President of the Japan Arts Council not to provide the grant using the Culture and Art Promotion Budget Subsidy goes beyond the scope of, or constitutes an abuse of the President's discretionary power, and therefore it is illegal

Case seeking revocation of a decision not to provide a grant

Judgment of the Second Petty Bench, quashed and decided by the Supreme Court

Tokyo High Court, Judgment of March 3, 2022

With regard to a decision made by the President of the Japan Arts Council not to provide the grant using the Culture and Art Promotion Budget Subsidy to a person who filed an application for the grant for its activities to produce a fiction film, on the grounds that since the performers appearing in the film include a person for whom a judgment of conviction for the crime of violation of the Narcotics and Psychotropics Control Act became final and binding, "it is inappropriate from the perspective of public interest to provide a grant under a national subsidy program for the film," given the circumstances described in the judgment, such as that the relevant performer does not receive any benefit directly from the provision of the grant, the President's decision goes beyond the scope of, or constitutes an abuse of, the President's discretionary power, and therefore it is illegal.

Article 14, paragraph (1), item (i) and Article 17 of the Japan Arts Council Act, Independent Administrative Agency, Article 6, paragraph (1) of the Act on Regulation of Execution of Budget Pertaining to Subsidies, etc.

The judgment in prior instance is quashed.

The appeal to the court of second instance filed by the appellee of final appeal is dismissed.

The costs for the appeal to the court of second instance and the costs for the final appeal shall be borne by the appellee of final appeal.

Concerning the reasons for a petition for acceptance of final appeal stated by the counsel for final appeal, SHINOMIYA Takashi, et al.

1. The appellant of final appeal, a film production company, filed an application to the President of the appellee of final appeal (hereinafter simply referred to as the "President") for the grant using the Culture and Art Promotion Budget Subsidy (hereinafter referred to as the "Grant") for its activities to produce a fiction film titled "Miyamoto kara Kimi e" (From Miyamoto to You) (hereinafter referred to as the "Film"), but was given a decision by the President not to provide the Grant on the grounds that providing the Grant is inappropriate from the perspective of public interest (hereinafter referred to as the "Disposition"). In this case, the appellant sues the appellee to seek the revocation of the Disposition.

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

(1) The appellee is an incorporated administrative agency established pursuant to the provisions of the Japan Arts Council Act, Independent Administrative Agency (hereinafter referred to as the "Japan Arts Council Act") and the Act on General Rules for Incorporated Administrative Agencies (Article 2 of the Japan Arts Council Act).

Article 3 of the Japan Arts Council Act provides that the purpose of the appellee includes providing assistance for activities intended for the promotion or dissemination of culture, such as activities intended for the creation or dissemination of the arts carried out by artists and art organizations, thereby contributing to the enhancement of the arts and other culture. Article 14, paragraph (1), item (i) of the same Act provides that, in order to achieve the purpose mentioned above, the appellee engages in operations, such as providing funds and other necessary assistance for activities intended for the creation or dissemination of the arts carried out by artists and art organizations, including performances and exhibitions.

Article 17 of the Japan Arts Council Act provides that the provisions of the Act on Regulation of Execution of Budget Pertaining to Subsidies, etc. (hereinafter referred to as the "Subsidies Regulation Act") apply mutatis mutandis to funds provided by the appellee pursuant to the provisions of Article 14, paragraph (1), item (i) of the Japan Arts Council Act.

(2) The President has formulated the "Guidelines for Provision of Grants Using the Culture and Art Promotion Budget Subsidy" (hereinafter referred to as the "Guidelines"), and as part of the operations set forth in Article 14, paragraph (1), item (i) of the Japan Arts Council Act, the President provides the Grant for activities to produce fiction films and other activities, using the Culture and Art Promotion Budget Subsidy as financial resources. The procedures to provide the Grant as prescribed in the Guidelines and other provisions were as follows as of the time when the procedures concerning the Disposition were conducted.

a. A person who intends to receive the Grant is to submit to the President a written request for the grant. Having received the written request, the President makes an informal decision on the activities for which the Grant is to be provided (hereinafter referred to as the "activities covered by the grant") and the amount of the grant to be provided, following deliberations by the Japan Arts Fund Management Committee consisting of external experts (hereinafter referred to as the "Fund Management Committee") (such decision by the President is hereinafter referred to as the "informal decision to provide the grant"), and notifies the abovementioned person of the informal decision. The Fund Management Committee offers opinions in response to the inquiries from the President based on the results of the screening conducted by the field-specific subcommittees and expert panels established under the committee. In the case of a fiction film, the criteria for such screening include the film being a work with excellent content in line with the intended plan of the film, and the staff, cast and other persons concerned with the film being found to have a high degree of expertise and a new level of creativity.

b. If the person who was notified of the informal decision to provide the grant accepts the content, etc. of the decision, the person is to submit to the President a written application for the grant. Having received the written application, the President examines its content, and if the President finds that the Grant should be provided, the President makes a decision to provide the grant (Article 17 of the Japan Arts Council Act, and Article 6, paragraph (1) of the Subsidies Regulation Act), and notifies the abovementioned person of the decision.

(3) The appellant set about the production of the Film around April 2018, and as of November 22, 2018, it submitted to the President a written request for the grant for the activities to produce the Film. On March 22, 2019, the President received an opinion from the Fund Management Committee that the request regarding those activities for film production should be accepted, and as of March 29, 2019, the President made an informal decision to provide the grant by designating those activities for film production as activities covered by the grant (hereinafter referred to as the "Informal Decision") and notified the appellant of the decision.

One of the performers in the Film (hereinafter referred to as the "Performer") was arrested on March 12, 2019, for the use of cocaine, and on June 18, 2019, after the Informal Decision was made, the Performer was given a judgment of conviction for the crime of violation of the Narcotics and Psychotropics Control Act to sentence them to imprisonment for one year and six months with three-year suspension of execution (hereinafter referred to as the "Judgment of Conviction"). The Judgment of Conviction became final and binding around that time.

The appellant submitted to the President a written application for the grant based on the Informal Decision by July 2, 2019, but the President made the Disposition as of July 10 not to provide the Grant on the grounds that since the Performer for whom the Judgment of Conviction became final and binding appears in the Film, "it is inappropriate from the perspective of public interest to provide a grant under a national subsidy program for the Film."

3. Under the abovementioned facts of the case, the court of prior instance dismissed the appellant's claim to seek the revocation of the Disposition, holding as summarized below.

The Performer is a famous person who played an important role in the story of the Film. In light of the facts such as that the Judgment of Conviction and related matters were widely covered by the media, the Performer committed a serious drug crime, and measures including reshooting the relevant scenes using substitute performers were adopted for many other films and works in which the Performer appeared, under the circumstances where drug abuse is a serious social problem, it cannot be said that the President lacked an important factual basis when making the Disposition from the perspective of public interest of preventing drug abuse, while taking into account the fact that the Judgment of Conviction became final and binding after the Informal Decision was made, nor can it be said that the content of the President's determination is extremely inappropriate in light of socially accepted ideas. Rather, if the Grant was provided for the activities to produce the Film, such an attitude that permits illegal drugs would spread among the public, and would eventually undermine the public understanding of the grant program implemented by the appellee. Therefore, the Disposition cannot be found to go beyond the scope of, or constitute an abuse of, the President's discretionary power, and the Disposition should be judged to be legal.

4. However, the abovementioned determination by the court of prior instance cannot be affirmed, for the following reasons.

(1) In view of the following facts, the determination on whether to provide the Grant is left to the President's discretion, and such determination is judged to be illegal if it goes beyond the scope of, or constitutes an abuse of, the President's discretionary power: neither the Japan Arts Council Act nor the Subsidies Regulation Act contains any provisions that specify the requirements for provision of the Grant; the Grant is a benefit funded by limited financial resources in order to achieve the purpose of the Grant or the purpose of the appellee (Article 3 of the Japan Arts Council Act), i.e., contributing to the enhancement of the arts and other culture by providing assistance for activities intended for the promotion or dissemination of culture, among others; and in order to make an appropriate determination on the type of activities that should be covered by the Grant to achieve the abovementioned purpose, a person who makes a determination needs to be well-acquainted with actual conditions of the arts, etc.

(2) In light of the facts such as that the appellee is an incorporated administrative agency established for the purpose of promoting the enhancement of public interest (Article 3-2 of the Japan Arts Council Act, and Article 2, paragraph (2) of the Act on General Rules for Incorporated Administrative Agencies) and that the President must endeavor to ensure that the Grant will be used fairly and efficiently in accordance with laws and regulations and the budget (Article 17 of the Japan Arts Council Act, and Article 3 of the Subsidies Regulation Act), it is considered that even in the case of activities which are appropriate to be covered by the grant from an artistic perspective, if it is found that providing the Grant for these activities would result in harming the general public interest, this can be taken into consideration as a negative reason when determining whether to provide the grant.

The Grant is intended to cover activities relating to acts of expression, such as performances and exhibitions (Article 14, paragraph (1), item (i) of the Japan Arts Council Act). If, with regard to activities which are appropriate to be covered by the grant from an artistic perspective, the practice of refusing the provision of the Grant is widely conducted on the grounds that providing the Grant would result in harming the general public interest in light of the content of the acts of expressions involved in these activities, it might have a chilling effect on persons who need the grant when filing an application for the grant or a chilling effect on persons who wish to receive the grant that may affect the content of their acts of expression because, in the first place, public interest is an abstract concept, and therefore the criteria for selecting activities to be covered by the grant would inevitably be unclear. Such a situation not only harms the purpose of the Grant or the purpose of the appellee but also undermines the independence or creativity of artists, etc., and it also cannot be overlooked in light of the purpose of guaranteeing freedom of expression under Article 21, paragraph (1) of the Constitution. Accordingly, it is appropriate to consider that when determining whether to provide the Grant, as a negative circumstance for consideration, it should be permitted to give weight to the likelihood that the provision of the Grant may result in harming the general public interest in light of the content of the acts of expression involved in the activities to be covered, only if the public interest in question is important and there is a concrete risk of harm to the public interest.

The explanation given above is not affected by whether the Guidelines contain any provisions concerning giving consideration to the general public interest.

(3) The appellee alleges that: if the Grant is provided for the activities to produce the Film in which the Performer appears, this could be taken as the appellee sending a wrong message that the government is tolerant of drug crimes and such an attitude that permits illegal drugs is highly likely to spread among the public; such a situation runs counter to the initiatives carried out by the government to prevent drug abuse and would undermine the public understanding of the Grant, which is financed by citizens' taxes. According to this allegation, it can be considered that the President gave weight, as a negative circumstance for consideration, to the likelihood that the provision of the Grant for the activities to produce the Film would result in harming the public interest mentioned above in light of the content of the Film, which involves the Performer, for whom the Judgment of Conviction became final and binding, playing a certain role.

However, considering the facts such as that the Performer does not receive any benefit directly from the provision of the Grant, it is difficult to assume, regardless of the name recognition of the Performer and the importance of the role played by them, that the provision of the Grant for the activities to produce the Film would be taken as the appellee sending the message mentioned above. Moreover, there is no reason to be found to immediately consider that due to such provision of the Grant, the attitude that permits illegal drugs would spread among the public and that the number of persons who use or otherwise handle illegal drugs would increase. Therefore, it cannot be said that there is a concrete risk of harm to the public interest, i.e., prevention of drug abuse. The public understanding of the purpose of the Grant, which is alleged by the appellee, could be regarded as a public interest that is separate from the public interest of prevention of drug abuse, but such an abstract public interest cannot be deemed to be as important as the public interest of prevention of drug abuse.

Accordingly, it should be said that the likelihood that the provision of the Grant for the activities to produce the Film would result in harming the public interest mentioned above in light of the content of the Film, which involves the Performer playing a certain role in the Film, cannot be given weight as a negative circumstance for consideration in the course of making the Disposition. According to the abovementioned facts of the case, the President made the Informal Decision after hearing the opinion of the Fund Management Committee, and the determination that the activities to produce the Film should be designated as activities covered by the grant cannot be regarded as being unreasonable from an artistic perspective. Since no other circumstance can be found to consider that the provision of the Grant is unreasonable, it can be said that the Disposition is extremely inappropriate in light of socially accepted ideas as a result of emphasizing circumstances that should not be emphasized.

(4) For the reasons stated above, it should be said that the Disposition goes beyond the scope of, or constitutes an abuse of, the President's discretionary power, and therefore it is illegal.

5. The determination by 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, and the judgment in prior instance should inevitably be quashed. According to the explanation given above, the judgment in first instance that upheld the appellant's claim for the revocation of the Disposition is justifiable, and therefore the appeal to the court of second instance filed by the appellee should be dismissed.

For the reasons stated above, the Court unanimously decides as set forth in the main text of the judgment.

Justice OJIMA Akira

Justice MIURA Mamoru

Justice KUSANO Koichi

Justice OKAMURA Kazumi