2023.12.15

2022 (Gyo-Tsu) 275

Minshu Vol. 77, No. 9

(Civil Case)Judgment concerning whether, out of the provisions of Article 1 of the Act Partially Amending the Act Partially Amending the National Pension Act (Act No. 99 of 2012), the parts providing for the transitional measures concerning the calculation of the pension benefit amounts, etc. under the National Pension Act, the special measures for transitional measures concerning the calculation of the pension benefit amounts, etc. under the National Pension Act in FY2013 and FY2014, and the special measures for transitional measures concerning the calculation of the amounts of pension insurance benefits under the Employees' Pension Insurance Act in FY2013 violate Articles 25 and 29 of the Constitution

Case seeking revocation of decisions to reduce the pension amounts, and revocation, etc. of decisions to reduce the pension amounts

Judgment of the Second Petty Bench, dismissed

Osaka High Court, Judgment of March 16, 2022

Out of the provisions of Article 1 of the Act Partially Amending the Act Partially Amending the National Pension Act (Act No. 99 of 2012), the parts providing for the transitional measures concerning the calculation of the pension benefit amounts, etc. under the National Pension Act, the special measures for transitional measures concerning the calculation of the pension benefit amounts, etc. under the National Pension Act in FY2013 and FY2014, and the special measures for transitional measures concerning the calculation of the amounts of pension insurance benefits under the Employees' Pension Insurance Act in FY2013 do not violate Articles 25 and 29 of the Constitution.

(There are concurring opinions.)

Articles 25 and 29 of the Constitution, Article 1 of the Act Partially Amending the Act Partially Amending the National Pension Act (Act No. 99 of 2012)

The final appeal is dismissed.

The costs of the final appeal shall be borne by the appellants of final appeal.

Concerning the reasons for a final appeal stated by the counsel for final appeal, SAEKI Yuzo, et al.

1. In this case, the appellants of final appeal, who are beneficiaries of either or both of old-age basic pension under the National Pension Act and employees' old-age pension under the Employees' Pension Insurance Act (hereinafter collectively referred to as "old-age pension"), sued the appellee of final appeal to seek revocation, etc. of the dispositions issued to them to revise the amounts of their old-age pension.

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

(1) Under the old-age pension programs, a mechanism was introduced in 1973 wherein, if the fiscal-year average or annual average of the national consumer price index (hereinafter simply referred to as the "price index") has fluctuated in the preceding fiscal year or the preceding year from the level of the fiscal year or year before the relevant fiscal year or year, the pension amount is revised on the basis of the ratio of such fluctuations and other factors (hereinafter the mechanism relating to such revision is referred to as the "price indexation mechanism").

However, with regard to the pension amounts from FY2000 to FY2002, the Act on Special Measures for Revision of Pension Amounts under the National Pension Act in FY2000, the Act on Special Measures for Revision of Pension Amounts under the National Pension Act in FY2001, and the Act on Special Measures for Revision of Pension Amounts under the National Pension Act in FY2002 (hereinafter collectively referred to as the "Price Indexation Special Measures Acts") were enacted respectively, and the pension amounts were not reduced under the price indexation mechanism but were kept at the level of FY1999 (hereinafter the level of the original pension amounts applicable on the assumption that the Price Indexation Special Measures Acts were not applied is referred to as the "original level" and the level of the pension amounts actually paid, which resulted from keeping the level of FY1999 and which is higher than the original level, is referred to as the "special level"). As a result, in FY2002, there was a gap of about 1.7% between the special level and the original level.

With regard to the pension amounts for FY2003 and FY2004 as well, the special measures laws concerning the revision of the pension amounts were enacted respectively in consideration of the fall of the price index and the pension benefit amounts were reduced, but the abovementioned gap was maintained.

(2) Under such circumstances, the Act Partially Amending the National Pension Act (Act No. 104 of 2004; hereinafter referred to as the "Amendment Act of 2004") was enacted to abolish the price indexation mechanism and revise the pension amounts on the basis of the fluctuations in prices and wages, while fixing the level of insurance premiums for old-age pension in the future. Then, at the time of the abovementioned revision of the pension amounts, a new mechanism was introduced to determine the pension amounts in consideration of the rate of change in the total number of public pension insured persons and the growth rate of the average life expectancy under certain conditions, such as a possibility that the balanced finance for the national pension program and the employees' pension insurance program (a good balance between revenue and expenditure based on the amounts of insurance premiums and state contributions as well as the expenses required for paying benefits) cannot be maintained (hereinafter this mechanism is referred to as "macroeconomic slide mechanism") (Articles 16-2, 27-4 and 27-5 of the National Pension Act as amended by the Amendment Act of 2004 and Articles 34, 43-4 and 43-5 of the Employees' Pension Insurance Act as amended by the same Amendment Act).

The Amendment Act of 2004 did not immediately eliminate the special level, and it provided that the pension amounts at the special level would not be increased even if the price index increased after the enforcement of the same Act, and that the special level would be eliminated as a result of the pension amounts at the original level increasing due to the increase in prices and wages after the enforcement (the original level after the amendment by the same Act is the level of pension amounts under the provisions of the Act; hereinafter the same applies) and exceeding the pension amounts at the special level. According to the same Act, the macroeconomic slide mechanism would not be applied to pension beneficiaries who were to receive the pension benefit amounts at the special level, and that mechanism would become applicable to them when the special level was eliminated.

(3) However, due to the fall in the price index after the enforcement of the Amendment Act of 2004, the special level was not eliminated; rather, in FY2011, the special level exceeded the original level by around 2.5%. In addition, the report published by the government around March 2010 regarding the current budget status and projections of the national pension program and the employees' pension insurance program (Article 4-3, paragraph (1) of the National Pension Act, Article 2-4, paragraph (1) of the Employees' Pension Insurance Act) indicated that the aging of population with the declining birthrate in Japan would advance more rapidly than assumed at the time of the enactment of the Amendment Act of 2004, and that the deficits in the balance of payments for national pension and employees' pension were increasing.

In light of such circumstances, the Act Partially Amending the Act Partially Amending the National Pension Act (Act No. 99 of 2012; hereinafter referred to as the "Amendment Act of 2012") was enacted. Under this Act, the special level would be eliminated in phases over the three fiscal years up until the start of FY2015 even if prices and wages did not increase in FY2013 or FY2014 (Article 1).

3. Concerning the part of the reasons for a final appeal, which argues violation of Articles 25 and 29 of the Constitution

(1) The counsel's argument is understood as meaning that, out of the provisions of Article 1 of the Amendment Act of 2012, the parts providing for the transitional measures concerning the calculation of the pension benefit amounts, etc. under the National Pension Act, the special measures for transitional measures concerning the calculation of the pension benefit amounts, etc. under the National Pension Act in FY2013 and FY2014, and the special measures for transitional measures concerning the calculation of the amounts of pension insurance benefits under the Employees' Pension Insurance Act in FY2013 (hereinafter referred to as the "Parts of the Provisions") violate Articles 25 and 29 of the Constitution.

(2) According to the abovementioned facts of the case, Article 1 of the Amendment Act of 2012 was intended to eliminate the special level in phases over three fiscal years. It can be said that the special level was planned to be eliminated in the future from the beginning, in light of the developments leading to its introduction. Maintaining the pension benefit amounts at the special level would force the working generation to bear a greater burden than that they should have borne under the pension programs, which are based on the pay-as-you-go scheme (a scheme in which pension benefits to be paid to the existing pension beneficiaries are financed by the insurance premiums mainly contributed by the working generation). It would also strain financial resources when the current working generation starts to receive pension benefits. At the time of the enactment of the Amendment Act of 2012, it was rationally predicted that, along with the advancement of the aging of population with the declining birth rate in Japan, the working generation's ability to bear insurance premiums and taxes would further decrease, whereas the total amount of old-age pensions to be paid would further increase.

In addition to these points, the elimination of the special level would lead to achieving the application of the macroeconomic slide mechanism, which was developed as a rational mechanism for maintaining the pension programs while giving due consideration to intergenerational equity and achieving the abovementioned balanced finance in the situation where the advancement of the aging of population with the declining birth rate is expected in Japan. In light of this, eliminating the special level uniformly in relation to pensioners who have received temporarily increased amounts of benefits cannot be regarded as being irrational from the perspective of ensuring intergenerational equity under the Japanese pension programs, which are based on the pay-as-you-go scheme, preventing the decline in trust in the pension programs, and also preventing the deterioration of the financial basis for pensions, thereby securing the sustainability of the pension programs.

According to the above, it cannot be said that the legislative branch's decision to take the abovementioned measures is extremely irrational and clearly goes beyond the scope of, or constitutes an abuse of its discretionary power, nor can it be said that these measures are unreasonable restrictions on pension beneficiaries.

(3) Consequently, the Parts of the Provisions cannot be judged to violate Articles 25 and 29 of the Constitution.

The above conclusion is clear in light of the purports of the judgments of the Grand Bench of this court (1976 (Gyo-Tsu) 30, the judgment of the Grand Bench of the Supreme Court of July 7, 1982, Minshu Vol. 36, No. 7, at 1235; 1973 (Gyo-Tsu) 24, the judgment of the Grand Bench of the Supreme Court of July 12, 1978, Minshu Vol. 32, No. 5, at 946; and 2000 (O) 1965, 2000 (Ju) 1703, the judgment of the Grand Bench of the Supreme Court of February 13, 2002, Minshu Vol. 56, No. 2, at 331). The determination by the court of prior instance to the same effect is justifiable and can be affirmed. The counsel's arguments cannot be accepted.

4. Concerning the part of the reasons for a final appeal, which argues violation of Article 98, paragraph (2) of the Constitution

The counsel's argument of violation of Article 98, paragraph (2) of the Constitution is substantially an argument of a mere violation of law or regulation, and it constitutes none of the grounds prescribed in Article 312, paragraphs (1) and (2) of the Code of Civil Procedure.

Accordingly, the Court unanimously decides as set forth in the main text of the judgment. Justice MIURA Mamoru and Justice OJIMA Akira respectively provide concurring opinions.

The concurring opinion by Justice MIURA Mamoru is as follows.

I agree with the court opinion, but I would like to give some supplementary comments regarding the point on Article 25 of the Constitution.

1. Article 25, paragraph (1) of the Constitution, based on the principle of welfare state, declares that the State is responsible for managing the affairs of the state so that all people can maintain the minimum standards of wholesome and cultured living, and paragraph (2) of the same Article, based on the same principle, declares that the State is responsible for endeavoring to create and expand social legislation and social facilities. Paragraph (1) of the same Article does not provide that the State has the obligations as mentioned above in relation to individual citizens specifically and in actuality, but it is understood as meaning that individual citizens' specific and actual rights concerning their daily lives would be created and enhanced through the creation and expansion of social legislation and social facilities, for which the State is responsible under paragraph (2) of the same Article (see the judgment of the Grand Bench of the Supreme Court on July 7, 1982, cited in the court opinion). The national pension program is a social security system established to realize such purpose of that Article, and it is intended to ensure cooperation and solidarity among citizens to prevent the stability in the daily lives of the citizens from being undermined due to old age, disabilities or death (Article 1 of the National Pension Act).

With regard to the special level of the pension amounts, which arose from the Price Indexation Special Measures Act under the price indexation mechanism introduced for the old-age pension programs, the provisions of Article 1 of the Amendment Act of 2012 contain the parts providing that the special level would be eliminated over the period of three fiscal years. The issue in this case is the constitutionality of the relevant Parts of the Provisions.

In this respect, it is undeniable that for pension beneficiaries who are to receive the pension benefit amounts at the special level, the pension benefit amounts they actually receive would decrease, and that, with only such pension amounts, it would be difficult for people who have little income or assets other than pensions to stabilize their lives. The same conclusion is also suggested by the status of the aging of households that receive public assistance in recent years. In determining whether the Parts of the Provisions violate Article 25 of the Constitution, these points should be taken into consideration from the perspective of creating and enhancing individual citizens' specific and actual rights concerning their daily lives, on the premise of the Diet's discretion and within the overall framework of the social security system to be created and expanded by the State, including the public assistance system.

It is necessary to secure the sustainability of the pension programs as systems established for the abovementioned purpose based on Article 25 of the Constitution. The special level was planned to be eliminated in the future from the beginning. In addition, while the advancement of the aging of population with the declining birth rate is predicted, it is required to ensure intergenerational equity under the pension programs based on the pay-as-you-go scheme, prevent the decline in trust in the pension programs, and also prevent the deterioration of the financial basis for pensions. In light of these facts, even by considering matters such as the levels of the pension amounts resulting from the elimination of the special level, it cannot be said that the legislative measures relating to the Parts of the Provisions are extremely irrational and clearly go beyond the scope of, or constitute an abuse of, the legislative branch's discretionary power.

2. It is true that under Article 25 of the Constitution, the State is responsible for promoting and extending social security, etc., including pensions, medical care, welfare, and public assistance, so that all the people, including the elderly, are guaranteed the minimum standards of living and can live healthy and fulfilling daily lives. It is necessary to review programs according to changes in various circumstances in society, but in order to avoid the situation in which people suffer from poverty for various reasons, it is important to provide a sustainable program under which individuals who are currently facing difficulties can receive necessary benefits and assistance smoothly. To this end, appropriate measures need to be developed.

The concurring opinion by Justice OJIMA Akira is as follows.

I agree with the court opinion, but in light of the counsel's arguments, I would like to state my opinion to explain the purport of the court opinion.

1. Determination method employed by the court opinion

The court opinion states that it is clear that the Parts of the Provisions do not violate the Constitution in light of the purports of 1976 (Gyo-Tsu) 30, the judgment of the Grand Bench of the Supreme Court of July 7, 1982, Minshu Vol. 36, No. 7, at 1235 (hereinafter referred to as the "Grand Bench Judgment in 1982") and other Grand Bench judgments.

The pension programs discussed in this case were created and have been operated for the purpose of ensuring cooperation and solidarity among citizens to prevent the stability in the daily lives of the citizens from being undermined due to old age, etc., thereby contributing to maintaining and improving wholesome lives of the citizens (Article 1 of the National Pension Act), or for the purpose of providing insurance benefits for workers' old-age, etc., so as to contribute to stabilizing the livelihoods and improving the welfare of workers and their surviving family members (Article 1 of the Employees' Pension Insurance Act). The first question in this case is whether the revision to reduce the pension benefit amounts through law amendments violates Article 25 of the Constitution.

In developing a pension program, various circumstances should be taken into consideration comprehensively, such as the understanding of the current status and the future forecasts regarding the social situation (e.g., the state of economic growth, demographic composition including the aging population with the declining birth rate, the economic situation including prices, employment, and wages), the financial status (including the status of pension financing), monetary policies, and the status of the daily lives of the citizens (e.g., living standards, mutual relationships with other social security systems), the need to secure stability and reliability as a system, the public awareness of social security, and equity among people in terms of benefits and burden (intergenerational equity is also an important factor). In order to accurately understand these various circumstances and design a program, an organ that has appropriate expertise and competence needs to take on this task. In addition, the awareness of these circumstances and opinions on the ideal pension programs vary among various segments of the public, depending on their position and political beliefs, and it is possible that sharp conflicts may arise at times. It is appropriate that the political branch within the governing structure undertakes the task of comprehensively coordinating these factors and creating a mechanism that is found to be rational as of that time, and from the people's perspective, this task should be achieved through a democratic process. Then, it should be said that the final consequence of such process should in principle be realized by the broad discretion of the Diet, which is composed of duly elected representatives, and this is the governing structure based on separation of powers as envisaged by the Constitution.

The Grand Bench Judgment in 1982 ruled as follows: "In embodying the provisions (of Article 25 of the Constitution) in actual legislation, the financial situation of the State cannot be ignored, and wide-ranging, complex and diverse, as well as highly technical considerations, are required, and political judgments based on such considerations. Consequently, it is left to the broad discretion of the legislative branch to decide specific legislative measures to be taken in line with the purport of the provisions of Article 25, and unless the legislative branch's decision is deemed to be extremely irrational and clearly go beyond the scope of, or constitute an abuse of, its discretion, it should be said that this matter is not appropriate to be left to the examination and decision by the court." This ruling can be understood as having been rendered in consideration of what is discussed above, and can be regarded as appropriate as a criterion for examining the constitutionality of a system as one under the Parts of the Provisions.

The appellants allege that the Parts of the Provisions violate Article 29 of the Constitution as well. However, there are various types and forms of legal systems for which the existence of a violation of property rights may become an issue, and in examining whether a violation of that Article can be found, a detailed examination is required according to these types and forms. In this case, the appellants argue that their property rights have been violated due to the measures to amend the law that awarded the pension amounts at the special level with regard to their rights to receive pension benefits, and then to establish a new law to reduce the amounts of benefits. However, considering the content of the aforementioned rights to receive pension benefits as held in the court opinion, their allegation regarding the violation of Article 29 of the Constitution is in substance not much different from their allegation regarding the violation of Article 25 of the Constitution, and therefore, in light of the purports of 1973 (Gyo-Tsu) 24, the judgment of the Grand Bench of the Supreme Court of July 12, 1978, Minshu Vol. 32, No. 5, at 946, and 2000 (O) 1965, 2000 (Ju) 1703, the judgment of the Grand Bench of the Supreme Court of February 13, 2002, Minshu Vol. 56, No. 2, at 331, it should be said that it is sufficient to make a determination on their allegation on Article 29 of the Constitution not separately but in combination with their allegation on Article 25 of the Constitution.

2. Principle of prohibition of degradation or abolition of systems concerning the rights concerning daily life

The appellants allege that since Article 25, paragraph (2) of the Constitution provides that "In all spheres of life, the State shall use its endeavors for the promotion and extension of social welfare and security, and of public health," that paragraph sets out the principle of prohibition of degradation or abolition of systems concerning the rights concerning daily life under which, when the State makes a decision to lower or degrade the people's living standards that have once been embodied, the range of the State's discretion should be narrowed and its decision is required to be justified to a reasonable extent. However, this principle is ambiguous in many aspects, such as what could be the basis for evaluating that a system has been degraded, and how the mutual relationship between the Constitution and each norm under a law is to be considered in the case where the protection level of a system established under a law is later lowered by an amendment law and this could constitute a violation of the Constitution. Thus, it could not be said that this principle is an appropriate, matured legal theory or criterion that should be referred to when examining whether a law conforms to Article 25 of the Constitution. In this case, on the premise of the existence of the principle of prohibition of degradation or abolition of systems concerning the rights concerning daily life, the appellants allege that the reduction of pension benefit amounts immediately constitutes degradation of a system and the Parts of the Provisions should be subject to strict examination and are found to be in violation of Article 25 of the Constitution. It is clear that such allegation of the appellants is unacceptable.

3. Regarding the review of the judgment process in legislation

The appellants allege that the concept of the review of the judgment process in legislation should be employed when examining whether the Parts of the Provisions conform to Article 25 of the Constitution. However, when the court reviews the constitutionality of provisions of a law for which the Diet is granted a certain scope of discretionary power, the court first determines the content of the norm under the provisions and judges whether the content of the objective norm thus determined violates the Constitution. The examination from different viewpoints, that is, whether the examination and consideration in the legislative process is sufficient or insufficient, such as whether the legislative branch has examined necessary facts in the legislative process, whether it has considered facts that should not be taken into consideration, and whether there are any errors in the facts it assumed, does not immediately affect the conformity to the Constitution. This is different in some aspects from the process through which the court reviews whether an individual and specific disposition by an administrative organ goes beyond the scope of, or constitutes an abuse of, the discretionary power of the administrative organ.

It is true that, in the course of the judicial review of constitutionality of legislation conducted by the court, in some cases, the court needs to take into consideration, as the preconditions for the examination, the purpose and objective of the provisions in question as well as the legislative facts that serve as the basis for the necessity and appropriateness of the legislative measures, and thus far, the court has actually done so on a case-by-case basis. However, the court may not have considered this approach as the review of the judgment process in legislation as alleged by the appellants.

Thus, the specific content of the review of the judgment process in legislation as alleged by the appellants cannot be considered to have matured as a theory in terms of necessity, clarity, usability and other factors based on the relationship between legislative power and judicial power. Since the norm under the Parts of the Provisions cannot be regarded as being irrational as held in the court opinion, there is no choice but to say that it is difficult to accept the appellants' allegation demanding the review of the judgment process in legislation in this case.

Justice OJIMA Akira

Justice MIURA Mamoru

Justice KUSANO Koichi

Justice OKAMURA Kazumi