2024.07.03

2022 (Ju) 1411

Minshu Vol. , No.

(Civil Case)Judgment concerning a case in which the court ruled that it is contrary to the principle of good faith and impermissible as an abuse of rights to assert the period of exclusion prescribed in the second sentence of Article 724 of the Civil Code (prior to the amendment by Act No. 44 of 2017)

Case seeking state redress

Judgment of the Grand Bench, dismissed

Tokyo High Court, Judgment of March 11, 2022

The final appeal is dismissed.

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

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

1. The appellee of final appeal argue that the appellee underwent a surgical operation to remove the ability to breed (hereinafter referred to as a "sterilization operation") pursuant to the provisions of Article 3, paragraph (1), items (i) to (iii), Article 10, or Article 13, paragraph (2) of the Eugenic Protection Act (Act No. 156 of 1948; named the Maternal Health Act after the amendment by Act No. 105 of 1996; hereinafter referred to as the "Eugenic Protection Act" before and after the amendment) (the provisions of Article 3, paragraph (1), items (i) and (ii) and Article 10 that were effective between September 11, 1948, and September 25, 1996, the provisions of Article 3, paragraph (1), item (iii) that were effective between September 11, 1948, and March 31, 1996, and the provisions of Article 13, paragraph (2) that were effective between May 27, 1952, and September 25, 1996; hereinafter collectively referred to as the "Provisions").

In this case, the appellee seeks, inter alia, compensation for loss or damage under Article 1, paragraph (1) of the State Redress Act against the appellant, alleging that the Provisions are in violation of Article 13, Article 14, paragraph (1) and other provisions of the Constitution, that inter alia, it is illegal for the Minister of Health and Welfare to have unthinkingly allowed sterilization operations to be performed under the Provisions, and that the appellee suffered mental and physical pains due to the sterilization operation performed on him. The issue of the case is whether the appellee's claim against the appellant to seek compensation for loss or damage under Article 1, paragraph (1) of the State Redress Act due to the performance of the sterilization operation (hereinafter referred to as the "Claim") has been extinguished by the expiration of the period prescribed in the second sentence of Article 724 of the Civil Code prior to the amendment by Act No. 44 of 2017 (hereinafter referred to as the "Civil Code before the Amendment").

2. The outline of the facts lawfully determined by the court of prior instance (including publicly known facts) is as follows.

(1) A. The Eugenic Protection Act was enacted on June 28, 1948, promulgated on July 13, 1948, and put into effect on September 11, 1948.

At the time of enactment, Article 1 of the Eugenic Protection Act provided that the purpose of this Act is to prevent the birth of inferior descendants from the eugenic viewpoint and to protect the lives and health of mothers, and Article 2, paragraph (1) of the same Act provided that the term "eugenic operation" as used in this Act means a surgical operation specified by an order to remove the ability to breed without removing gonads. Article 1 of the Regulation for Enforcement of the Eugenic Protection Act (Ministry of Health Order No. 3 of 1949) specified the following surgical operations as eugenic operations: vasectomy; transection and displacement of the vas deferens; tubal ligation; and dissection of the interstitial portion of the fallopian tubes.

Article 3, paragraph (1) of the Eugenic Protection Act at the time of its enactment provided that a doctor may perform a eugenic operation on a person (excluding minors, mental patients and persons with mental retardation) who falls under any of the items of that paragraph, after obtaining consent from the person in question and the person's spouse (including a person who is not legally married but in practical terms is in a relationship like a marital relationship with said person; the same applies hereinafter) if said person has a spouse. The cases specified in these items included: [i] the person in question or the spouse has hereditary psychopathy, hereditary neurotic personality, hereditary physical disease or hereditary malformation (item (i)); [ii] the person in question or the spouse has a blood relative within the fourth degree of kinship who has hereditary mental illness, hereditary mental retardation, hereditary psychopathy, hereditary neurotic personality, hereditary physical disease or hereditary malformation, and any of these is likely to be passed on to the descendants (item (ii)); and [iii] the person in question or the spouse is suffering leprosy, and the descendants are likely to be infected with it (item (iii)).

Article 4 of the Eugenic Protection Act at the time of its enactment further provided that if a doctor confirms as a result of diagnosis that a person is suffering any of the diseases set forth in the Appended Table of the same Act, and finds it necessary in the public interest to perform a eugenic operation on that person in order to prevent the transmission of the disease, the doctor may file an application to the Prefectural Eugenic Protection Commission for an examination as to the appropriateness of performing a eugenic operation, and Articles 5 to 9 of the same Act prescribed the procedures and other matters concerning such examination. Article 10 of the same Act provided that when there is no objection to the decision to the effect that it is appropriate to perform a eugenic operation, or when such decision or the court judgment related thereto becomes final and binding, a doctor designated by the Prefectural Eugenic Protection Commission shall perform the eugenic operation. In addition, the Appended Table of the same Act set forth diseases and disabilities such as hereditary mental illness (item (i)) and hereditary mental retardation (item (ii)).

B. The Eugenic Protection Act was amended by Act No. 154 of 1949 (effective June 1, 1949), Act No. 216 of 1949 (effective June 24, 1949), and Act No. 141 of 1952 (effective May 27 of 1952; hereafter referred to as the "1952 Amendment Act"). In these amendments, Article 3, paragraph (1), items (i) and (ii) of the Eugenic Protection Act were amended to specify the following cases: [i] the person in question or the spouse has hereditary psychopathy, hereditary physical disease or hereditary malformation, or the spouse has mental illness or mental retardation (item (i)); and [ii] the person in question or the spouse has a blood relative within the fourth degree of kinship who has hereditary mental illness, hereditary mental retardation, hereditary psychopathy, hereditary physical disease or hereditary malformation (item (ii)). The term "Prefectural Eugenic Protection Commission" in the same Act was changed to "Prefectural Eugenic Protection Examination Board" and the phrase "may file an application" in Article 4 of the same Act was changed to "must file an application." The classification, names, and other matters of diseases and disabilities set forth in the Appended Table of the same Act were also revised.

In addition, the Eugenic Protection Act after its amendment by the 1952 Amendment Act provided in Article 12 that with regard to a person suffering from mental illness or mental retardation other than those of a hereditary nature set forth in item (i) or (ii) of the Appended Table of the same Act, a doctor may file an application to the Prefectural Eugenic Protection Examination Board for an examination as to the appropriateness of performing a eugenic operation on that person if consent is obtained from the person under obligation to protect the relevant person prescribed in Article 20 or Article 21 of the Mental Health Act (Act No. 123 of 1950). Article 13, paragraph (2) of the Eugenic Protection Act after the abovementioned amendment provided that a doctor may perform a eugenic operation when the Prefectural Eugenic Protection Examination Board has made a decision that it is appropriate to perform a eugenic operation.

The Regulation for Enforcement of the Eugenic Protection Act was entirely amended by Ministry of Health and Welfare Order No. 32 of 1952, but there was no change in the eugenic surgical operations prescribed in Article 1 before and after the amendment.

(2) On June 12, 1953, the Administrative Vice-Minister of Health and Welfare issued a notice titled "Enforcement of the Eugenic Protection Act" (Ministry of Health and Welfare Notice Ei No. 150 of June 12, 1953; hereinafter referred to as the "1953 Vice-Ministerial Notice") to prefectural governors. The 1953 Vice-Ministerial Notice stated as follows: a eugenic operation that is subject to an examination may be performed on a person even against the person's opinion; since the method of forcing a eugenic operation permitted in such cases must involve the minimum force necessary to perform the operation, the use of physical force must be avoided as much as possible, but depending on the specific circumstances of each case, it is acceptable to consider that the use of physical restraint, anesthetics, deception or other means may be permitted to the extent that it is truly unavoidable.

On December 24, 1954, the Director of the General Affairs Division of the Public Health Bureau of the Ministry of Health and Welfare issued a notice titled "Promotion of Eugenic Operations Subject to Examination" (Notice Ei-Sho No. 119 of December 24, 1954) to directors of prefectural health departments. The notice stated that the status of the number of eugenic operations subject to an examination performed until November in that fiscal year was considerably lower than the levels targeted in the previously submitted plans, and that further efforts should be made to perform the operations according to the plans. In addition, on April 27, 1957, the Director of the Mental Health Division of the same Bureau issued a notice to heads of prefectural health departments (bureaus) that the number of eugenic operations performed each year was lower than the budgeted number, and requested that they make efforts to achieve their targets for performing eugenic operations in the current fiscal year.

(3) The appellee is a man born in [YEAR].

The appellee underwent a sterilization operation around February or March 1957 when he was in an education and protection center. This sterilization operation was performed under the provisions of Article 10 or Article 13, paragraph (2) of the Eugenic Protection Act (as amended by the 1952 Amendment Act).

(4) A. On April 1, 1996, the Act on Repeal of the Leprosy Prevention Act (Act No. 28 of 1996) came into effect, and the provisions of Article 3, paragraph (1), item (iii) of the Eugenic Protection Act were deleted by this Act.

On September 26, 1996, the Act Partially Amending the Eugenic Protection Act (Act No. 105 of 1996) came into effect. As a result of the amendment of the Eugenic Protection Act by this Act (hereinafter referred to as the "1996 Amendment"), the title of the Eugenic Protection Act was changed to "Maternal Health Act," and the phrase "prevent the birth of inferior descendants from the eugenic viewpoint and" in Article 1 of the same Act was changed to "by providing for matters concerning sterilization, induced abortion, etc.," and the provisions of Article 3, paragraph (1), items (i) and (ii), and Articles 4 through 13 of the same Act were deleted.

B. According to data retained by the Ministry of Health, Labour and Welfare, the number of persons who underwent sterilization operations performed under the Provisions from 1949 up to the 1996 Amendment is estimated to be about 25,000.

(5) A. In November 1998, the Human Rights Committee established under the International Covenant on Civil and Political Rights (hereinafter referred to as the "Human Rights Committee") adopted the concluding observations on the report of the Government of Japan (hereinafter referred to as the "Concluding Observations of 1998"). In the Concluding Observations of 1998, the Human Rights Committee, while acknowledging the abolition of forced sterilization of disabled women, regretted that the law had not provided for a right of compensation with regard to persons who were subject to forced sterilization, and recommended that the necessary legal steps be taken. In November 2001, the Japan Federation of Bar Associations issued an opinion stating that the Government of Japan should make efforts to provide relief for damage from forced sterilization operations performed under the Eugenic Protection Act, as has been recommended by the Human Rights Committee, and should take measures to compensate women who underwent forced sterilization operations under the same Act.

However, in a report submitted to the Human Rights Committee in December 2006, the Government of Japan stated that it was not considering retrospective compensation for operations legally performed under the Eugenic Protection Act.

B. In December 2007, the Japan Federation of Bar Associations published its opinion regarding the above report, stating that the Government of Japan should immediately clarify a concrete plan to implement a comprehensive investigation and compensation for disabled women who were subject to forced sterilization in the past. In its concluding observations adopted in October 2008 and August 2014, the Human Rights Committee stated that the Government of Japan should implement the recommendations contained in the Concluding Observations of 1998. Furthermore, in its concluding observations concerning the report by the Government of Japan adopted in March 2016, the Committee on the Elimination of Discrimination against Women stated that the Committee recommended that the Government of Japan should adopt specific measures aimed at providing all victims of forced sterilizations under the Eugenic Protection Act with assistance to access legal remedies and provide them with compensation and rehabilitative services.

However, until April 2019, no compensation measures were taken for those who underwent sterilization operations performed under the Provisions.

(6) On May 17, 2018, the appellee filed an action in this case.

In this lawsuit, the appellant argued that the Claim had been extinguished by the expiration of the period prescribed in the second sentence of Article 724 of the Civil Code before the Amendment.

(7) On April 24, 2019, the "Act on the Provision of a Lump-Sum Payment to People who Underwent Eugenic Operations based on the Former Eugenic Protection Act" (hereinafter referred to as the "Lump-sum Payment Act") was enacted and came into effect with the exception of some provisions.

The preamble of the Lump-sum Payment Act states that many people were forced to undergo sterilization operations, etc. based on the Eugenic Protection Act or against the background of the existence of the Act due to specific diseases or disabilities, etc. until the relevant provisions were deleted in 1996, and that they have suffered tremendous physical and mental anguish, and also states that "we express sincere regret and feelings of deep apology from our respective standpoints." In the Lump-sum Payment Act, Article 3 provides that the State shall provide a lump-sum payment to specified persons, including those who underwent sterilization operations under the Provisions, Article 4 provides that the amount of the lump-sum payment shall be 3.2 million yen, and Article 5, paragraph (1) provides that the Prime Minister shall, upon the request of a person who wishes to receive a lump-sum payment, certify the person's right to receive said payment, and shall pay the lump-sum payment to the person who has received said certification. On the other hand, the same Act does not clarify the legal nature of the lump-sum payment, nor does it provide for any adjustments in cases where a person who is to receive the lump-sum payment has received compensation for loss or damage or other payment to cover their loss for the same cause, thus, the Act does not assume that the appellant is liable for compensation for loss or damage.

3. The counsel argue that the court of prior instance determined that it cannot be said that the Claim has been extinguished by the expiration of the period prescribed in the second sentence of Article 724 of the Civil Code before the Amendment, and that this determination contains an error in the interpretation of the second sentence of said Article and a violation of precedents.

4. (1) It is understood that the second sentence of Article 724 of the Civil Code before the Amendment provides for the period of exclusion of a claim for compensation for loss or damage arising from a tort, and that this claim is naturally extinguished by operation of law by the expiration of the period of exclusion. However, it is appropriate to consider that if it is extremely contrary to the principles of justice and fairness and totally unacceptable to determine that such claim has been extinguished by the expiration of the period of exclusion prescribed in the second sentence of the same Article, the court may determine that the assertion on the period of exclusion is impermissible as it constitutes a violation of the principle of good faith or an abuse of rights (see 2023 (Ju) 1319, the judgment of the Grand Bench of the Supreme Court of July 3, 2024).

(2) This point is examined as follows.

A. The Claim is a claim filed by the appellee against the appellant to seek compensation for loss or damage under Article 1, paragraph (1) of the State Redress Act due to the performance of the sterilization operation under the Provisions. It should be said that the Provisions were in violation of Article 13 and Article 14, paragraph (1) of the Constitution, and that it was obvious that the content of the Provisions illegally violates the rights that are constitutionally guaranteed to the people, and therefore, it is appropriate to consider that the legislative act by the Diet members regarding the Provisions is judged to be illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act (see the judgment of the Grand Bench of 2024 mentioned above).

B. (A) Article 724 of the Civil Code before the Amendment is construed as a provision intended to promptly determine the legal relations in a case involving a tort. As mentioned in A. above, in this case where the people were seriously harmed by an act of state power, namely legislation, which obviously illegally violates the rights that are constitutionally guaranteed to the people, the importance of the requirement to protect the interests of the persons concerned by stabilizing the legal relations must be greatly reduced. In addition, it cannot be said that due to the nature of the act that caused harm, i.e., the legislative act by the Diet members, the perpetrator's activities to prove the content of the act and the existence or non-existence of illegality in the act will become difficult because evidence would be lost as time goes by. Accordingly, it should be said that the purpose of this Article is not applicable in this case in some aspects.

(B) In such situation, based on the Provisions, which violate Article 13 and Article 14, paragraph (1) of the Constitution as described in A. above, the appellant, as a policy of the State, implemented measures that discriminated against persons with specific diseases and disabilities and demanded a grave sacrifice from them without reasonable grounds over a long period of about 48 years, from 1948 to 1996. Furthermore, in implementing such measures, the appellant actively promoted eugenic operations by, for example, issuing the 1953 Vice-Ministerial Notice to prefectural governors, stating that the use of physical restraint, anesthetics, deception or other means may be permitted in some cases when performing eugenic operations which required examination. As a result of the implementation of the abovementioned measures, at least as many as 25,000 persons underwent sterilization operations under the Provisions, due to which they suffered serious harm in the form of loss of reproductive capacity. In light of these points, it must be said that the appellant's responsibility for the legislative act regarding the Provisions is extremely serious.

In addition, since laws are enacted by the Diet, which is the highest organ of state power and the sole legislative organ of the State, the provisions of laws give the public a strong presumption that they are constitutional, and what is more, given that sterilization operations to be performed under the Provisions were mainly performed on persons who have specific diseases and disabilities, and that many of them are considered to have been under various restrictions in exercising their rights, it should be said that it was extremely difficult to expect those who suffered damage due to the sterilization operations performed under the Provisions to exercise their claims for compensation for loss or damage against the appellant under Article 1, paragraph (1) of the State Redress Act by arguing that the Provisions are unconstitutional. Although the Provisions were deleted entirely in 1996, given that the appellant continued to take the position that sterilization operations performed under the Provisions were legal, it could be said that it remained difficult to expect the abovementioned persons to exercise their claims mentioned above. Moreover, no special circumstances can be found where the appellee could have been expected to promptly exercise the Claim.

In addition, although the Diet has discretionary authority to legislate, in this case, the Provisions, which obviously illegally violate the rights that are constitutionally guaranteed to the people, were established by the Diet's exercise of its legislative discretion, and as a result, many people were seriously harmed. In light of the purpose of Article 17 of the Constitution, which provides for the right of persons who have suffered damage due to the tortious acts of public employees to seek compensation from the State or public entities, it should be said that after the Provisions were deleted in 1996 in recognition of the problematic nature of the Provisions, the Diet was strongly expected to take prompt measures for compensation by exercising its legislative discretion appropriately. Nevertheless, for a long period of time thereafter, the appellant continued to take the position that sterilization operations performed under the Provisions were legal and that no compensation should be provided. Although the Lump-sum Payment Act was enacted and enforced in April 2019, after this action was filed, it only provided that a lump-sum payment of 3.2 million yen would be provided uniformly to certain persons, including those who underwent sterilization operations under the Provisions, without assuming the appellant's liability for compensation for loss or damage.

(C) In light of the circumstances mentioned above, it is extremely contrary to the principles of justice and fairness and totally unacceptable to assume that the Claim has been extinguished by the expiration of the period of exclusion prescribed in the second sentence of Article 724 of the Civil Code before the Amendment. Therefore, it is against the principle of good faith and impermissible as an abuse of rights for the appellant to assert the period of exclusion against the appellee's exercise of the Claim.

5. Based on the above, the determination by the court of prior instance that it cannot be said that the Claim has been extinguished by the expiration of the period prescribed in the second sentence of Articled 724 of the Civil Code before the Amendment can be upheld in its conclusion. Among the precedents cited by the counsel, 1984 (O) 1477, the judgment of the First Petty Bench of the Supreme Court of December 21, 1989, Minshu Vol. 43, No. 12, at 2209, should be altered (see the judgment of the Grand Bench of 2024 mentioned above), and the rest are inappropriate for this case. The counsel's arguments cannot be accepted.

For the reasons stated above, the Court unanimously decides as set forth in the main text of the judgment. There are concurring opinions by Justice MIURA Mamoru and Justice KUSANO Koichi, and an opinion by Justice UGA Katsuya.

The concurring opinion by Justice MIURA Mamoru is as follows.

My view regarding matters such as the scope of the judicial precedents that should be altered is as mentioned in my concurring opinion attached to 2023 (Ju) 1319, the judgment of the Grand Bench of the Supreme Court of July 3, 2024.

The concurring opinion by Justice KUSANO Koichi is as follows.

I agree with the conclusion and all of the reasons for the majority opinion, but, regarding the point stated in the majority opinion that it is contrary to the principle of good faith and impermissible as an abuse of rights for the appellant to make an assertion on the period of exclusion against the exercise of the Claim by the appellee, although I think that this point is sufficiently persuasive in itself, I believe that it would be even more persuasive if it further considered the legislative intent of Article 724 of the Civil Code before the Amendment. The reasons for my view are as mentioned in my concurring opinion attached to 2023 (Ju) 1319, the judgment of the Grand Bench of the Supreme Court of July 3, 2024.

The opinion by Justice UGA Katsuya is as follows.

I agree with the majority opinion on the following points: the Provisions are in violation of Article 13 and Article 14, paragraph (1) of the Constitution; the second sentence of Article 724 of the Civil Code before the Amendment should be interpreted as meaning that the court should not determine that a claim has been extinguished by the expiration of the period prescribed in the second sentence of the same Article unless it is asserted by the party; and such assertion may be contrary to the principle of goods faith or impermissible as an abuse of rights in some cases, and this case falls under such cases. On the other hand, with respect to the interpretation that the period prescribed in the second sentence of Article 724 of the Civil Code before the Amendment is the period of exclusion, I disagree with the majority opinion, and I believe that the second sentence of the same Article prescribes extinctive prescription. The reasons for my view are as mentioned in my concurring opinion attached to 2023 (Ju) 1319, the judgment of the Grand Bench of the Supreme Court of July 3, 2024.

Justice TOKURA Saburo

Justice MIYAMA Takuya

Justice MIURA Mamoru

Justice KUSANO Koichi

Justice UGA Katsuya

Justice HAYASHI Michiharu

Justice OKAMURA Kazumi

Justice YASUNAMI Ryosuke

Justice WATANABE Eriko

Justice OKA Masaaki

Justice SAKAI Toru

Justice IMASAKI Yukihiko

Justice OJIMA Akira

Justice MIYAGAWA Mitsuko

Justice ISHIKANE Kimihiro