2024.07.03

2023 (Ju) 1319

Minshu Vol. , No.

(Civil Case)Judgment concerning a case in which the court ruled:1. the provisions on eugenic operations under the Eugenic Protection Act (Article 3, paragraph (1), items (i) to (iii), Article 10, and Article 13, paragraph (2) of the same Act) are in violation of Article 13 and Article 14, paragraph (1) of the Constitution;2. the legislative act by the Diet members regarding the provisions on eugenic operations are judged to be illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act;3. if it is extremely contrary to the principles of justice and fairness and totally unacceptable to determine that a claim for compensation for loss or damage arising from a tort has been extinguished by the expiration of 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), 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; and4. 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 same Code.

Case seeking state redress

Judgment of the Grand Bench, dismissed

Osaka High Court, Judgment of March 23, 2023

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, HARUNA Shigeru, et al.

1. The appellees of final appeal and the persons to whom they have succeeded (hereinafter collectively referred to as the "first-instance plaintiffs") argue that they or their spouses 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 appellees seek 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 the legislative act by the Diet members regarding the Provisions is illegal, and that the first-instance plaintiffs suffered mental and physical pains due to the sterilization operations performed on them. The issue of the case is whether the first-instance plaintiffs' claims 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 operations (hereinafter referred to as the "Claims") have 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) A. Appellee X1, a man born in 1932, was deaf in both ears from birth. P, a woman born in the same year, lost her hearing at the age of three due to an illness. Appellee X1 and P had a wedding in May 1960 and registered their marriage in December 1961.

It was discovered that P became pregnant around July or August 1960, and on the day following that date, P was taken by her mother to a hospital and underwent an induced abortion and sterilization operation. The sterilization operation was performed under the provisions of Article 3, paragraph (1), item (i) of the Eugenic Protection Act (as amended by the 1952 Amendment Act), by regarding the consent of P's mother as the consent of P and Appellee X1.

B. Q, a man born in [YEAR], developed a hearing loss due to the worsening chronic middle ear infection in both ears at the age of [AGE]. Appellee X2, a woman born in [YEAR], was deaf in both years from birth. Q and Appellee X2 had an engagement ceremony around 1968 and registered their marriage in [MONTH] 1968.

Around January or March 1968, Q was taken by her mother to a hospital and underwent a sterilization operation. The sterilization operation was performed under the provisions of Article 3, paragraph (1), item (i) of the Eugenic Protection Act (as amended by the 1952 Amendment Act), by regarding the consent of Q's mother as the consent of Q.

C. Appellee X3, a woman born in 1955, had been diagnosed by a doctor as having congenital cerebral palsy.

Appellee X3 underwent a sterilization operation in March 1968. The sterilization operation was performed under the provisions of 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 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 September 28, 2018, Appellee X1, P, Q, and Appellee X2 filed an action in this case, and on February 27, 2019, Appellee X3 filed an action in this case.

In this lawsuit, the appellant argued that the Claims 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.

(8) A. In November 2020, Q died, and Appellee X2, the heir, succeeded to Q's rights and obligations.

B. In June 2022, P died, and Appellee X1, the heir, succeeded to P's rights and obligations.

3. Based on the facts mentioned above, the court of prior instance found that the Provisions are in violation of Article 13 and Article 14, paragraph (1) of the Constitution, that the legislative act by the Diet members regarding the Provisions is illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act, and that the first-instance plaintiffs suffered mental and physical pains due to the sterilization operations performed on them or their spouses under the Provisions. The court of prior instance ruled that it is appropriate to award 13 million yen as solatium to each of P and Q, 2 million yen as solatium to each of Appellee X1 and Appellee X2, and 15 million yen as solatium to Appellee X3, and partially upheld the appellees' claims, determining as summarized below.

It is understood that the second sentence of Article 724 of the Civil Code before the Amendment prescribes the period of exclusion for a claim for compensation for loss or damage arising from a tort, and the period of exclusion for the Claims had expired before this action was filed. However, in cases where there are special circumstances in which allowing the effect of the expiration of the period of exclusion would be extremely contrary to the principles of justice and fairness, it should be considered that such effect can be limited exceptionally in light of the legal intent of the provisions concerning the suspension of prescription (Articles 158 to 160 of the same Code), etc., so as to comply with the rule of reason. With regard to the Claims, it should be said that the special circumstances mentioned above exist, and therefore that the abovementioned effect will not arise until six months have passed from the time when the appellant admits that the Provisions are in violation of the Constitution or the time when it is determined by a judgment of the Supreme Court that the Provisions are in violation of the Constitution, whichever comes earlier. Since it can be said that the first-instance plaintiffs filed this action before the abovementioned effect arises, it cannot be said that the Claims have been extinguished by the expiration of the period of exclusion.

4. The counsel argue that according to 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 (hereinafter referred to as the "1989 Judgment") and other judicial precedents, it should be said that the Claims have 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 the determination by the court of prior instance contains an error in the interpretation of the second sentence of said Article and a violation of precedents.

5. The 1989 Judgment held as follows. 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 if an action to seek compensation for loss or damage due to a tort is filed after the expiration of the period of exclusion, the court should determine that the claim was extinguished by the expiration of the period of exclusion even when it is not asserted by the party. Therefore, it is inappropriate to argue that the assertion on the period of exclusion constitutes a violation of the principle of good faith or an abuse of right.

However, under the facts of this case, it would be extremely contrary to the principles of justice and fairness and totally unacceptable to exempt the appellant from the liability for compensation for loss or damage by assuming that the Claims have been extinguished by the expiration of the period of exclusion. The abovementioned legal theory indicated in the 1989 Judgment cannot be maintained as it is, and it should be understood that there may be cases in which the assertion on the period of exclusion may constitute a violation of the principle of good faith or an abuse of rights, and it should be said that the assertion on the period of exclusion by the appellant in this case is impermissible as it constitutes a violation of the principle of good faith and an abuse of rights. This is explained in detail below.

6. (1) A. In this lawsuit, the appellees seek compensation for the loss or damage incurred by the first-instance plaintiffs due to the sterilization operations performed under the Provisions, arguing that the Provisions are in violation of Article 13, Article 14, paragraph (1) and other provisions of the Constitution, and that the legislative act by the Diet members regarding the Provisions is illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act.

B. The Provisions provide for sterilization operations to be performed on [i] persons who have specific diseases or disabilities specified by the Eugenic Protection Act (hereinafter referred to as "specific disabilities, etc."), [ii] persons whose spouses have specific disabilities, etc., or [iii] persons or their spouses whose blood relative within the fourth degree of kinship has specific disabilities, etc.

Article 13 of the Constitution guarantees freedom not to have one's body invaded against one's will as an important right related to the right to protect one's personality (see 2020 (Ku) 993, the judgment of the Grand Bench of the Supreme Court of October 25, 2023, Minshu Vol. 77, No. 7, at 1792). Since a sterilization operation is an invasion to the body that would cause a serious consequence, i.e., the loss of reproductive capacity, forcing a person to undergo a sterilization operation constitutes a serious restriction on the abovementioned freedom. Therefore, forcing a person to undergo a sterilization operation without reasonable grounds is in violation of said Article and impermissible.

This is applied to the Provisions as follows. In light of the provisions of Article 1 of the Eugenic Protection Act before the 1996 Amendment, it is understood that the legislative purpose of the Provisions is, exclusively from the eugenic viewpoint, that is, from the viewpoint of improving the genetic predispositions of the entire nation as a group by eliminating inferior genetic traits and preserving superior genetic traits, and based on the evaluation that persons with specific disabilities, etc. are inferior, to have such persons or persons having a certain degree of kinship with them undergo sterilization operations, thereby preventing the birth of descendants who have the same diseases or disabilities as they do. However, Article 13 of the Constitution declares respect for individual dignity and personality, and it is clear that the legislative purpose of the Provisions is not justifiable, no matter how much consideration is given to the social conditions at the time of the legislation, in that the legislative purpose is based on the view that persons with specific disabilities, etc. are inferior and it is necessary to prevent the birth of such persons. It must be said that the Provisions are extremely contrary to the spirit of respect for individual dignity and personality in that they require certain individuals to make a grave sacrifice of losing their reproductive capacity under such a legislative purpose.

Therefore, no reasonable grounds can be found for performing sterilization operations under the Provisions, and forcing persons to undergo sterilization operations under the Provisions is in violation of Article 13 of the Constitution and is impermissible. The provisions of Article 3, paragraph (1), items (i) to (iii) of the Eugenic Protection Act, which are included in the Provisions, require the consent of the person in question for performing a sterilization operation on the person. However, these provisions, as well as the rest of the Provisions, are intended to force a grave sacrifice from a specific individual exclusively from the eugenic viewpoint, and seeking the consent of the individual for performing a sterilization operation under such provisions is in itself against the spirit of respect for individual dignity and personality, and is impermissible. The fact that consent was given in response to such a request cannot be a ground to say that the sterilization operation was not forced. In addition, although it is usually unthinkable that a person would voluntarily seek a sterilization operation performed from the eugenic viewpoint, it is easy to imagine a situation in which a person had no choice but to consent to a sterilization operation against their will due to pressure from others or another reason. In light of the fact that there was no provision in the Eugenic Protection Act that assures that the consent of a person is based on their free will, it should be said that performing a sterilization operation on a person with the person's consent under Article 3, paragraph (1), items (i) to (iii) of the same Act is, in effect, equal to forcing the person to undergo a sterilization operation.

Article 14, paragraph (1) of the Constitution provides for equality under the law, and it is stated in the precedents of this court that this provision should be interpreted as prohibiting legally discriminatory treatment unless it is based on reasonable grounds according to the nature of the matter (1962 (O) 1472, the judgment of the Grand Bench of the Supreme Court of May 27, 1964, Minshu Vol. 18, No. 4, at 676; 1970 (A) 1310, the judgment of the Grand Bench of the Supreme Court of April 4, 1973, Keishu Vol. 27, No. 3, at 265; etc.). The Provisions specify persons subject to sterilization operations as follows: [i] persons who have specific disabilities, etc., [ii] persons whose spouses have specific disabilities, etc., and [iii] persons or their spouses whose blood relative within the fourth degree of kinship has specific disabilities, etc. As mentioned above, no reasonable grounds can be found for performing sterilization operations under the Provisions. Therefore, it must be said that specifying those persons in [i] to [iii] above as persons subject to sterilization operations to be performed under the Provisions and distinguishing them from others constitutes discriminatory treatment not based on reasonable grounds.

C. According to the above, it should be said that the Provisions were in violation of Article 13 and Article 14, paragraph (1) of the Constitution. In light of the above, it should be said 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 2001 (Gyo-Tsu) 82 and 83, 2001 (Gyo-Hi) 76 and 77, the judgment of the Grand Bench of the Supreme Court of September 14, 2005, Minshu Vol. 59, No. 7, at 2087).

(2) 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 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 above, the appellant, as a policy of the State, implemented measures that discriminated against persons with specific disabilities, etc. 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 disabilities, etc., 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 first-instance plaintiffs could have been expected to promptly exercise the Claims.

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 exempt the appellant from liability for compensation for loss or damage to the first-instance plaintiffs on the grounds that the Claims have been extinguished simply because the action was filed after the expiration of the period of exclusion.

7. (1) In light of the above, the legal theory indicated in the 1989 Judgment regarding the second sentence of Article 724 of the Civil Code before the Amendment is examined below.

In light of the purpose of Article 724 of the Civil Code before the Amendment, which intends to promptly determine the legal relations in a case involving a tort, it is appropriate to consider that the second sentence of this Article provides for the period of exclusion of a claim for compensation for loss or damage arising from a tort and that this claim is extinguished by operation of law by the expiration of the period of exclusion. However, if we go further from this and maintain the legal theory indicated in the 1989 Judgment that the court should determine that the abovementioned claim has been extinguished by the expiration of the period of exclusion even when it is not asserted by the party, and that it is inappropriate to argue that the assertion on the period of exclusion constitutes a violation of the principle of good faith or an abuse of right, this theory would be extremely contrary to the principles of justice and fairness and may lead to totally unacceptable results in a case such as this case, even if the abovementioned purpose of Article 724 of the Civil Code, i.e., promptly determining the legal relations in a case involving a tort, is taken into consideration. Although it is understood that the assertion on the period of exclusion is considered as violation of the principle of good faith or an abuse of right in light of the abovementioned purpose of the same Article only in extremely limited cases, it is not appropriate to deny that such cases exist.

From this standpoint, it should be construed that the court is unable to determine that the abovementioned claim has been extinguished by the expiration of the period of exclusion unless it is asserted by the party, and it is appropriate to consider that if it is extremely contrary to the principles of justice and fairness and totally unacceptable to determine that the abovementioned claim has been extinguished by the expiration of the period of exclusion, 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. The 1989 Judgment and other precedents of this Court that have a meaning differing from the above should all be altered.

(2) As mentioned in 6. above, under the facts of this case, it is extremely contrary to the principles of justice and fairness and totally unacceptable to assume that the Claims have been extinguished by the expiration of the period of exclusion. 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 first-instance plaintiffs' exercise of the Claims.

8. Based on the above, the determination by the court of prior instance that it cannot be said that the Claims have been extinguished by the expiration of the period of exclusion can be upheld in its conclusion. All of the precedents cited by the counsel (except for the 1989 Judgment) 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.

1. I would like to give some supplementary comments on the scope of the judicial precedents that should be altered.

(1) The precedents to be altered by this judgment had the interpretation that it is inappropriate to argue that the assertion of the extinguishment of a claim by the expiration of the period prescribed in the second sentence of Article 724 of the Civil Code before the Amendment constitutes a violation of the principle of good faith or an abuse of right, on the grounds that this period is the period of exclusion. However, the abovementioned period had been interpreted as the period of prescription, as in the opinion by Justice TAHARA Mutsuo in 2008 (Ju) 804, the judgment of the Third Petty Bench of the Supreme Court of April 28, 2009, Minshu Vol. 63, No. 4, at 853, and also in many academic theories. The Civil Code as amended by Act No. 44 of 2017 (hereinafter this Act is referred to as the "Civil Code Amendment Act" and the amended Civil Code is referred to as the "Civil Code after the Amendment") also prescribes the 20-year period as the period of prescription. A question arises as to whether it is reasonable for the 1989 Judgment to have indicated that it is not in line with the purpose of Article 724 of the Civil Code before the Amendment to interpret the second sentence of the same Article as prescribing such a long period of prescription. Therefore, I will examine whether this court's precedents should also be altered in that they regard the period prescribed in the second sentence of the same Act as the period of exclusion.

(2) The period prescribed in the second sentence of Article 724 of the Civil Code before the Amendment is the period of exclusion for a claim for compensation for loss or damage arising from a tort. The legal theory that such claim is extinguished by operation of law by the expiration of the period of exclusion has been established as case law, and a number of court cases have been accumulated in accordance with this theory, which has also been accepted as the norm in society. This is reasonable to a certain extent as it is intended to promptly determine the legal relations in a case involving a tort.

On the other hand, Article 724 of the Civil Code after the Amendment prescribes the 20-year period as the period of prescription. This amendment is considered to be based on the view that if this period is prescribed as the period of exclusion, the provisions on interruption or suspension of prescription will not be applicable, which will make it impossible to prevent rights from being extinguished by the expiration of the period, and it would be impossible to provide relief for victims even in cases where it is found that there are truly compelling reasons for not having claimed compensation for loss or damage against the perpetrator over a long period of time because there is no room to argue that the assertion on the abovementioned period constitutes a violation of the principle of good faith or abuse of rights (see the statements by the Minister of Justice and the Director General of the Civil Affairs Bureau of the Ministry of Justice at meetings of the Committee on Judicial Affairs of the House of Councillors on April 25, 2017, and May 9, 2017). It can be said that the amendment was based on a legislative policy decision to provide relief to victims as described above, and it is difficult to say that the abovementioned legal theory, which has been established as case law, necessarily ceases to be reasonable because of the amendment.

In addition, with regard to the application of the provisions on interruption among the issues concerning the relief for victims mentioned above, in cases where there are circumstances that constitute the grounds for interruption, a victim knows the damage and the perpetrator, and the three-year period of prescription becomes an issue. Therefore, the issue of preventing the extinguishment of rights upon the expiration of the 20 year-period actually arises in very limited cases. Furthermore, with respect to the application of the provisions on suspension, in light of the legal intent of Article 158 or 160 of the Civil Code before the Amendment, the effect of the second sentence of Article 724 of the Civil Code before the Amendment may not arise in some cases.

The issue of arguing that the assertion on the abovementioned period constitutes a violation of the principle of good faith or abuse of rights is related to the alterations of the judicial precedents by this judgment. The purpose of the system of compensation for loss or damage due to a tort is to have the perpetrator compensate for the actual damage caused to the victim, thereby compensating for the disadvantage suffered by the victim and restoring the state where there had been no tort, and the principle of this system is to ensure the fair sharing of damage. Even if the period prescribed in the second sentence of Article 724 of the Civil Code before the Amendment is the period of exclusion, there is no reason to deny the basic principle under Article 1 of the Civil Code with respect to such argument. In this case, unlike the three-year period of prescription, the legal relationship is determined by the expiration of the 20-year period, regardless of the victim's awareness, but if the assertion on the period of exclusion is impermissible as a violation of the principle of goods faith or abuse of rights, the victim will be provided with relief.

Furthermore, the Civil Code Amendment Act provides that prior laws continue to govern the limitation to the 20-year period in cases where this period had already expired at the time when the Civil Code Amendment Act comes into effect (Article 35, paragraph (1) of the Supplementary Provisions), and that the legal relations formed until then are to be maintained as they are. If this court alters the judicial precedents regarding even the legal theory that the period prescribed in the second sentence of Article 724 of the Civil Code before the Amendment is regarded as the period of exclusion, the existence or non-existence of claims that were recognized as having been extinguished before the enforcement of the Civil Code Amendment Act should be determined by applying provisions on prescription. However, it is not understood that the Civil Code Amendment Act was intended to retroactively review the legal relations in this manner.

(3) Altering judicial precedents is an issue that involves both stability and development of law. In light of the above, and taking into consideration the purpose of the Civil Code after the Amendment, which is to provide relief to victims even in cases where there are truly compelling reasons for not having claimed compensation for loss or damage against the perpetrator over a long period of time, it is not appropriate to also alter the legal nature of the period of exclusion, in addition to the alterations of the judicial precedents made by this judgment.

2. I would like to add a few remarks on the response of the State and other matters in light of this judgment.

This case concerns the recovery of damage caused by the legislative branch's inhumane, discriminatory, and clearly unconstitutional legislation, based on which the executive branch's long-standing measures, nationwide and systematically, denied the dignity and violated the constitutional rights of an extremely large number of individuals.

The State has neglected to provide relief to victims for many years even after the Provisions were deleted. The lump-sum payment under the Lump-sum Payment Act is not premised on the State's liability for compensation for loss or damage, nor is the amount of the payment sufficient. In addition, the proportion of those who have been approved to be eligible for the lump-sum payment so far is extremely low compared to the total number of those who have undergone sterilization operations.

Under these circumstances, the fact that the legal theory indicated in the 1989 Judgment and other judicial precedents has been maintained to this day may have contributed to delaying the solution of the problem by making it easier for the State to maintain its argument that it is not liable for compensation for loss or damage. It goes without saying that the State could have provided relief to the victims through necessary legislative measures, etc.

Considering these circumstances, as well as the fact that many of the victims are already elderly and many of them have passed away, it is desirable to have a system in which appropriate compensation is paid to the victims as promptly as possible. To this end, I hope that the State will take necessary measures, and that the overall solution will be achieved as soon as possible.

The concurring opinion by Justice KUSANO Koichi is as follows.

I agree with the conclusion and all of the reasons of the majority opinion, but I would like to give supplementary comments 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 Claims by the first-instance plaintiffs (this point is hereinafter referred to as the "Opinion"). Although I think that the Opinion is sufficiently persuasive in itself, I believe that it would be even more persuasive if further considering the legislative intent of Article 724 of the Civil Code before the Amendment. I will elaborate on the reasons for my view below.

1. First, let us consider the significance of Article 724 of the Civil Code before the Amendment. Although there are many ways to view this point, I consider that the core interests to be guaranteed under Article 724 of the same Code are consolidated into the following two types of interests.

(1) The first is to ensure that the person who is alleged to have committed a tort has the interest in not being restricted from the freedom to envisage and realize a good way of life by continuing to bear the psychological and economic costs arising due to the possibility of being found to have committed the tort (hereinafter referred to as the "interest in not being restricted from self-realization"). This is because: [i] only the person who is alleged to have committed a tort will surely benefit from the existence of Article 724 of the Civil Code before the Amendment; and [ii] even the person who is alleged to have committed a tort should be respected for their freedom to envisage and realize a better way of life, and it cannot be denied that if such person had to continue to bear the abovementioned costs throughout their lifetime, the person's freedom to envisage and realize a better way of life for the time left in life would be prevented.

(2) The second core interest to be guaranteed under Article 724 of the Civil Code before the Amendment is the interest in avoiding the difficulty in securing evidence regarding the existence or non-existence of a tort with the passage of time (hereinafter referred to as "the interest in avoiding the difficulty in securing evidence"). The interest in avoiding the difficulty in securing evidence is different from the interest of not being restricted from self-realization in that it is not only enjoyed by the person who is alleged to have committed a tort but also extends to the welfare of the general public who have the right of access to the court. If the judiciary is forced to conduct a trial based on evidence which has deteriorated, the result will be nothing less than a decline in the public's expectation for a fair trial.

2. In light of what I have said in 1., I would like to consider what significance can be found in applying Article 724 of the Civil Code before the Amendment to Article 1 of the State Redress Act.

(1) First of all, it is impossible to find such significance in guaranteeing the interest in not being restricted from self-realization for a public employee in charge of exercising public authority who is alleged to have committed a tort in the performance of their duties (hereinafter simply referred to as a "public employee who is alleged to have committed a tort"). This is because, under the State Redress Act, a public employee who is alleged to have committed a tort is, in principle, not liable for compensation for loss or damage, and it is not necessary to guarantee the interest in not being restricted from self-realization for such public employee under Article 724 of the Civil Code before the Amendment, which is applicable to the State Redress Act.

(2) Next, let us consider the logic for asserting the interest in not being restricted from self-realization against the State or a public entity that is the responsible entity under the State Redress Act (hereinafter, for the sake of simplicity of expression, reference is made only to the "State"). In this case, the interest in not being restricted from self-realization may be restated as "the interest of the State in not being restricted from the freedom to envisage and realize the good vision of a state by continuing to bear the psychological and economic costs arising due to the possibility that the public employee who is alleged to have committed a tort may be found to have committed the tort (hereafter this interest is referred to as the "interest in not being restricted from envisaging and realizing a good state"). It is certainly a legitimate legislative purpose to guarantee the interest of not being restricted from envisaging and realizing a good state. However, in view of the fact that the psychological and economic costs mentioned above are shared and borne by the present and future citizens, who are the beneficiaries of the state, except when there are special circumstances such as where the compensation for the loss or damage in question would place an irreparable burden on the state finance, it is difficult to consider that the continued existence of the abovementioned possibility will restrict the State from freedom to envisage and realize the good vision of a state. In this case, no such special circumstances as mentioned above can be found.

(3) On the other hand, there is no doubt that the interest in avoiding the difficulty in securing evidence extends to the welfare of the general public, and therefore this interest should be equally guaranteed in lawsuits seeking state redress. However, in the present case, since the legislative act by the Diet members, which is their activity in the public arena, constitutes a tort, it is unlikely that it has become difficult to secure evidence, even though the activity in question was conducted more than half a century ago.

3. The above consideration may have sufficiently demonstrated that, in light of the legislative intent of Article 724 of the Civil Code before the Amendment, positive significance cannot be found in assuming that the Claims have been extinguished by the expiration of the period of exclusion. However, the consideration on the legislative intent of the same Article affects the Opinion beyond the points discussed above. This is because the guarantee for the interest in not being restricted from envisaging and realizing a good state, which is part of the legislative intent of the same Article, also provides a positive basis for concluding that the appellant's assertion on the period of exclusion in this case is contrary to the principle of good faith and is impermissible as an abuse of rights. This point will be clarified in detail below.

(1) What is noteworthy in this case is the fact that both the House of Representatives and the House of Councillors unanimously passed the Eugenic Protection Act, which includes the Provisions, despite the obvious unconstitutionality of the Provisions. This is a serious situation for Japan, which is a constitutional state. This is because, although a good state that should be envisaged by the policymakers of a constitutional state should always be one that conforms to the Constitution, the above fact suggests that even a state action that is obviously unconstitutional may be believed to be constitutional by everyone in different times or under different circumstances.

(2) The best action that the judiciary can take in light of the above situation is to inscribe its judgment in history when it becomes convinced that the policymakers have misapplied the Constitution, thereby demonstrating our nation's ideal status as a constitutional state.

(3) It then follows that this Court should solemnly rule that the Provisions are unconstitutional, and in order to do so, it must determine that the assertion that the Claims have been extinguished by the expiration of the period of exclusion is contrary to the principle of good faith and constitutes an abuse of rights.

(4) In short, if this Court determines that asserting that the Claims have been extinguished by the expiration of the period of exclusion is contrary to the principle of good faith and constitutes an abuse of rights, such determination does not contradict the legislative intent of Article 724 of the Civil Code before the Amendment, and moreover, it will actively promote the concept of envisaging and realizing a good state, which is part of the legislative intent of the same Article.

4. I believe that the explanation given above has made it clearer that the Opinion is right on the mark.

The opinion by Justice UGA Katsuya is as follows.

1. 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 since this case falls under such cases, the 1989 Judgment and other judicial precedents should be altered.

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, as is stated in the opinion by Justice TAHARA Mutsuo in 2008 (Ju) 804, the judgment of the Third Petty Bench of the Supreme Court of April 28, 2009, Minshu Vol. 63, No. 4, at 853 (hereinafter referred to as the "2009 Judgment"). The reasons for my view are as follows.

2. First, the 1989 Judgment states that the interpretation that both the first sentence and the second sentence of Article 724 of the Civil Code before the Amendment provide for prescription is inconsistent with the purpose of the same Article, which is intended to promptly determine the legal relations in a case involving a tort. However, even if the second sentence of the same Article is interpreted as providing for prescription, the period of prescription will run from the time of a tort even if the victim is unaware of the damage and the perpetrator, and thus, the second sentence of the same Article contributes to the early determination of legal relations in a different way from the first sentence of the same Article. Therefore, the abovementioned basis of argument stated in the 1989 Judgment seems to be weak. This point was indicated in the opinion and the dissenting opinion by Justice KAWAI Shinichi in 1993 (O) 708, the judgment of the Second Petty Bench of the Supreme Court of June 12, 1998, Minshu Vol. 52, No. 4, at 1087 (hereinafter referred to as the "1998 Judgment"), and it seems to have been made clearer under the Civil Code as amended by Act No. 44 of 2017 (hereinafter this Act is referred to as the "Civil Code Amendment Act" and the amended Civil Code is referred to as the "Civil Code after the Amendment"), in which Article 724, item (ii) provides for extinctive prescription. In addition, it is not rare in comparative law, including German law, to find legislation that provides for short-term prescription and long-term prescription with respect to the extinctive prescription for tort claims.

Second, the second sentence of Article 724 of the Civil Code before the Amendment is descended from the first and second drafts of the German Civil Code, which were the most referenced at the time of enactment of the Civil Code before the Amendment, and the General Law Code for the Prussian States, which influenced these drafts, and in light of the discussion at the Investigation Committee of Codes in Japan, there is no doubt that the legislators considered that the second sentence of Article 724 of the Civil Code before the Amendment provided for extinctive prescription. The period under the second sentence of Article 724 of the Civil Code before the Amendment was prescribed as a long period of 20 years not because it was the period of exclusion, but because it corresponded to the 20-year period of extinctive prescription in Article 168 of the draft of the Civil Code, based on which Article 167 of the Civil Code before the Amendment was stipulated. Later, Article 167 of the draft amendment of the Civil Code provided that "Property right other than ownership shall be extinguished if not exercised for 20 years." Then, the period of extinctive prescription for claims was shortened to 10 years with the intention of prescribing special short-term extinctive prescription for various types of claims in transactions. Article 167, paragraph (1) of the Civil Code at the time of enforcement provided that "A claim shall be extinguished if not exercised for 10 years," but in effect, it can be understood as a halving of the period of prescription that applies in principle to claims in transactions. In view of the fact that it is not rare that the perpetrator of a tort remains unknown for a long period of time, it is considered to be reasonable for the second sentence of Article 724 of the Civil Code before the Amendment to have prescribed a longer period of extinctive prescription than that for general claims. In light of the developments of Article 724 of the Civil Code before the Amendment, it seems rather possible to explain that the second sentence of the same Article prescribes the period of prescription that is applicable in principle, whereas the first sentence of the same Article provides for short-term extinctive prescription as a special rule applicable in cases where the victim comes to know the damage and the perpetrator.

Third, in literal terms, it seems more natural to interpret the phrase "The same shall apply" in the second sentence of Article 724 of the Civil Code before the Amendment as referring to "extinguished by prescription" rather than referring only to "extinguished" in the first sentence of the same Article. The wording of this phrase in Japanese was revised when the Civil Code as a whole was revised in colloquial language, but it is also natural to interpret this phase before the revision as referring to "extinguished by prescription" in the first sentence of the same Article. In the "Supplementary Explanation of the Proposed Revision of the Civil Code in Modern Language" (August 2004) by the Office of the Counselor, Civil Affairs Bureau, Ministry of Justice, it was stated that "the interpretations of Articles based on established precedents and common theories that are not explicitly indicated in the text of the Articles are to be included in the provisions." In the book titled "Restatement of Japanese Tort Law," the Tort Law Study Group recommended that the provision corresponding to the second sentence of Article 724 of the Civil Code before the Amendment be revised with the wording clearly indicating that the period prescribed therein is the period of exclusion rather than prescription. However, this recommendation was not accepted and the second sentence of the same Article was revised only by revising the phrase meaning "The same shall apply" in colloquial language. Furthermore, the heading of the same Article, which had been added in the amendment to the Civil Code in 2004, was changed to "Restriction of Period of Claim for Compensation for Loss or Damage Caused by Tort," rather than " Prescription and Period of Exclusion of Claim for Compensation for Loss or Damage Caused by Tort." In light of these facts, it seems that said amendment did not confirm the theory of the period of exclusion adopted by the 1989 Judgment.

Fourth, unlike the German Civil Code, the Civil Code of Japan does not explicitly specify the provisions on prescription that apply mutatis mutandis to part of the period of exclusion while clearly differentiating the period of prescription and the period of exclusion in the legal text. Therefore, in court decisions and academic theories that recognize the period prescribed in the second sentence of Article 724 of the Civil Code before the Amendment as the period of exclusion, opinions are divided as to whether it is possible to acknowledge or perform obligations after the expiration of the period of exclusion or to assert a set off of a claim after the expiration of the period of exclusion. If the second sentence of the same Article is interpreted as prescribing the period of exclusion, there will continue to be a lack of predictability as to how the court will interpret the above points. On the other hand, this problem will be resolved if the period prescribed in the second sentence of the same Article is interpreted as extinctive prescription.

Fifth, even supposing that the period prescribed in the second sentence of Article 724 of the Civil Code before the Amendment is recognized as the period of prescription and the interruption of the period is allowed, if there is a ground for interruption of prescription as prescribed in Article 147 of the Civil Code before the Amendment, the victim will know the damage and the perpetrator, and the short-term extinctive prescription under the first sentence of Article 724 of the Civil Code before the Amendment will run. Such case does not seem to be inferior to the case based on the theory of the period of exclusion in terms of eliminating instability.

Sixth, some argue that if the period prescribed in the second sentence of Article 724 of the Civil Code before the Amendment is not interpreted as the period of exclusion, a claim for compensation for loss or damage would theoretically be perpetuated by repeated interruptions of the short-term extinctive prescription. However, it seems to be less realistic to assume a situation in which the short-term extinctive prescription is repeatedly interrupted.

Seventh, a transitional provision is provided for Article 724, item (ii) of the Civil Code after the Amendment, and Article 35, paragraph (1) of the Supplementary Provisions of the Civil Code Amendment Act provides that prior laws continue to govern the limitation to the period prescribed in the second sentence of Article 724 of the Civil Code before the Amendment in cases where this period had already expired at the time when the Civil Code Amendment Act comes into effect. This transitional provision appears to have been established because the second sentence of Article 724 of the Civil Code before the Amendment prescribes the period of exclusion and Article 724, item (ii) of the Civil Code after the Amendment prescribes extinctive prescription, respectively. However, during the deliberations in the Diet, a member of the Committee on Judicial Affairs of the House of Councillors asked about the government view by stating that whether the period prescribed in the second sentence of Article 724 of the Civil Code before the Amendment is the period of exclusion or prescription would be determined by each judge, and asking that, in light of the purpose of the amendment, wouldn't it be reasonable to recognize the period prescribed in the second sentence of the same Article as prescription. In response, the government official answered that the Amendment Act is not intended to legally determine that the period prescribed in the second sentence of Article 724 of the Civil Code before the Amendment is the period of exclusion, and that it is still possible to interpret the second sentence of the same Article in various ways (Minutes of the Committee on Judicial Affairs of the House of Councillors in the 193rd Diet Session No. 9 (April 25, 2017), p. 15). In other words, the existence of the transitional provision under Article 35, paragraph (1) of the Supplementary Provisions of the Civil Code Amendment Act does not legally determine that the period prescribed in the second sentence of Article 724 of the Civil Code before the Amendment is the period of exclusion, but it is the legislators' intention to leave this issue to interpretation. Therefore, it is not considered to be contrary to the transitional provision under Article 35, paragraph (1) of the Supplementary Provisions of the Civil Code Amendment Act to alter the judicial precedents to indicate that the second sentence of Article 724 of the Civil Code before the Amendment prescribes extinctive prescription.

If so, it would be desirable to interpret the second sentence of Article 724 of the Civil Code before the Amendment as prescribing extinctive prescription as in the case of the Article 724, item (ii) of the Civil Code after the Amendment, in order to avoid a situation in which the treatment of Plaintiff A and Plaintiff B in the same case or similar cases differs due to the slight difference as to whether the period prescribed in the second sentence of Article 724 of the Civil Code before the Amendment expires before or after the Civil Code Amendment Act comes into effect, and one of these plaintiffs would not be able to obtain relief if the period prescribed in the second sentence of Article 724 of the Civil Code before the Amendment is interpreted as the period of exclusion.

3. If the second sentence of Article 724 of the Civil Code before the Amendment is interpreted in this case as providing for extinctive prescription, the 1998 Judgment and the 2009 Judgment that adopt the theory of the period of exclusion as the premise and allow an exception to this theory should also be altered.

On the other hand, it does not seem to be necessary to alter other judicial precedents concerning the point in time from which the period of exclusion starts, namely, 2001 (Ju) 1760, the judgment of the Third Petty Bench of the Supreme Court of April 27, 2004, Minshu Vol. 58, No. 4, at 1032 (hereinafter referred to as the "Supreme Court Judgment on the Chikuho Pneumoconiosis Case"), 2001 (O) 1194 and 1196, 2001 (Ju) 1172 and 1174, the judgment of the Second Petty Bench of the Supreme Court of October 15, 2004, Minshu Vol. 58, No. 7, at 1802 (hereinafter referred to as the "Supreme Court Judgment on the Minamata Disease Kansai Case"), 2004 (Ju) 672 and 673, the judgment of the Second Petty Bench of the Supreme Court of June 16, 2006, Minshu Vol. 60, No. 5, at 1997 (hereinafter referred to as the "Supreme Court Judgment on the Hepatitis B Hokkaido Case"), and 2019 (Ju) 1287, the judgment of the Second Petty Bench of the Supreme Court of April 26, 2021, Minshu Vol. 75, No. 4, at 1157 (hereinafter referred to as the "Supreme Court Judgment on the Hepatitis B Kyushu Case"), because these precedents are not based on the assumption that the concept of the starting point is naturally different between the period of exclusion and the period of extinctive prescription, but rather the Supreme Court seems to have determined the starting point in light of the nature of the damage concerned in each case.

More specifically, the Supreme Court Judgment on the Chikuho Pneumoconiosis Case stated that: "in the case of an unlawful act from which damage, due to its nature, would arise after a considerable period of time has passed since the termination of the act of causing the damage, such as damage due to substances that are harmful to human health if they are accumulated in the body and damage that would come to appear after a certain incubation period, the period of extinctive prescription should be deemed to start from the time when all or part of the damage has arisen from the act." The Supreme Court Judgment on the Minamata Disease Kansai Case, the Supreme Court Judgment on the Hepatitis B Hokkaido Case, and the Supreme Court Judgment on the Hepatitis B Kyushu Case also stated that: "in the case where loss or damage occurs after the passage of a reasonable period of time from the completion of a harmful act in terms of the nature of loss or damage caused by the relevant tortuous act, such as loss or damage caused by damage to human health due to a substance accumulated in the body and loss or damage caused by a disease whose symptoms appear after the passage of a certain period of incubation, it should be considered that the period of exclusion is counted from the time when the whole or part of the loss or damage occurs."

These precedents do not determine the starting point on the grounds that the period in question is the period of exclusion instead of extinctive prescription, but rather determine the starting point on the basis of the nature of the loss or damage caused by the tort in the case where loss or damage occurs after the passage of a reasonable period of time from the completion of a harmful act in terms of the nature of the loss or damage, such as loss or damage caused by damage to human health due to a substance accumulated in the body and loss or damage caused by a disease whose symptoms appear after the passage of a certain period of incubation. This point of view is appropriate even if the second sentence of Article 724 of the Civil Code before the Amendment is interpreted as prescribing extinctive prescription, and these precedents do not lose their value as a precedent (this point is indicated in the opinion by Justice TAHARA Mutsuo in the 2009 Judgment).

In addition, the starting point of the period of exclusion was also a point of contention in 2018 (Ju) 388, the judgment of the Third Petty Bench of the Supreme Court of March 24, 2020, Minshu Vol. 74, No. 3, at 292 (hereinafter referred to as the "Supreme Court Judgment on the Case on Assessment and Determination of Fixed Asset Tax, etc."), in which the point of issue was, in the case where fixed asset tax, etc. was overestimated due to the error in the calculation of the appraisal points for reconstruction costs of a newly constructed building, whether the period of exclusion is deemed to start from the time when the price was determined based on the erroneous appraisal at the time of new construction (1983 in the relevant case) with regard to the assessments and determinations on fixed asset tax, etc. for the relevant fiscal year and subsequent fiscal years (the view of the court of prior instance), or whether the period of exclusion should be calculated separately for each fiscal year from the point in time when a written notice of payment of fixed asset tax, etc. was issued for each fiscal year (the view of the Supreme Court). Thus, the Supreme Court Judgment on the Case on Assessment and Determination of Fixed Asset Tax, etc. is not concerned with whether the period prescribed in the second sentence of Article 724 of the Civil Code before the Amendment should be recognized as the period of exclusion or extinctive prescription, but rather it is a precedent concerning the starting point for calculating the period in the case where fixed asset tax, etc. was overestimated due to an error at a certain point in time and the overestimation of fixed asset tax, etc. based on the error continued for a long period of time. Even if the second sentence of the same Article is interpreted as prescribing extinctive prescription, this precedent would not be affected by such interpretation and would not lose its significance as a precedent. Therefore, there would be no need to alter this precedent.

Furthermore, the application of the second sentence of Article 724 of the Civil Code before the Amendment is considered to become an issue in only a few cases (this point was indicated in the opinion by Justice TAHARA Mutsuo in the 2009 Judgment). The second sentence of the same Article had already been amended, and Article 724, item (ii) of the Civil Code after the Amendment provides for extinctive prescription. There is no system to correct a civil case for which a judgment has already become final and binding, and even if the Court were to alter the judicial precedents in this case to indicate that the second sentence of Article 724 of the Civil Code before the Amendment prescribes extinctive prescription, such alteration would not legally affect the final and binding judgments. The alteration of the judicial precedents in this case only relates to the second sentence of Article 724 of the Civil Code before the Amendment and does not extend to other provisions that have been interpreted as prescribing the period of exclusion. In light of these points, although it is necessary to give consideration to legal stability, it does not seem to be necessary to worry about the confusion that may arise from the alteration of the judicial precedents to indicate that the second sentence of the same Article prescribes extinctive prescription.

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