1952.10.08

1952 (Ma) 23

Minshu Vol.6, No.9, at 783

Judgment concerning the question of whether, in the absence of a concrete case, the Supreme Court has authority to determine the constitutionality of any law or the like in the abstract

Case Concerning the National Police Reserve

Judgment of the Grand Bench; case dismissed

In the absence of a concrete case, the Supreme Court does not have authority to determine whether laws, orders, and the like are constitutional in the abstract.

Article 81 of the Constitution

On the case of a petition for annulment of administrative dispositions in violation of the Constitution of Japan, this Court finds as stated below.

The suit is dismissed.
Plaintiff shall bear the costs of the proceedings.

Outline of Facts:

Attorneys for the Plaintiff sought a judgment affirming that all acts by the Defendant since April 1, 1951 in connection with the establishment and maintenance of the National Police Reserve (including not only administrative acts but also actual acts and acts in private law, together with all laws, ordinances, and regulations concerning the establishment and maintenance of the reserve forces; the items enumerated in the accompanying list being merely examples) are null and void, and that the costs of the suit shall be borne by the Defendant. The grounds on which such a judgment was sought are as set forth under "Cause of the Complaint" in the appended petition and in the preliminary plea of July 16, 1952.

The Plaintiff contends that the Supreme Court, while having the character of a judicial court, also has an additional character whereby it exercises a special extrajudicial authority which is neither legislative nor executive in nature, consisting of the power to determine, as a court of first and last resort, the constitutionality of a law, order, regulation, or official act in the abstract, in the absence of any concrete legal dispute.
When the relevant institutions of other countries are examined, it is true that, in addition to countries where the power to review questions of constitutionality is vested in the judicial courts, there are other countries where this is not the case and where, instead, a special organ established for that purpose has been empowered to issue general and abstract declarations concerning the constitutionality of laws, orders, and the like and to render such laws, orders, and the like null and void, irrespective of the existence of concrete legal disputes. However, the authority that has been vested in our courts under the system now in force consists of the authority to exercise judicial power, and for judicial power to be invoked a concrete legal dispute must be brought before the courts. Our courts cannot exercise a power whereby, in the absence of such a concrete legal dispute, they render an abstract judgment anticipating the future and relating to a doubtful or controversial matter concerning the interpretation of the Constitution or other law, order, and the like
In actuality, the Supreme Court possesses the power to review the constitutionality of laws, orders, and the like, but that authority may be exercised only within the limits of judicial power; in this respect, the Supreme Court is no different from the lower courts (cf. Article 76, Paragraph 1 of the Constitution). The Plaintiff bases his claim on Article 81 of the Constitution; however, Article 81, which stipulates that the Supreme Court is the court of last resort for cases involving the Constitution, does not permit the inference that the Court has a power peculiar to itself to review constitutionality in the abstract, nor that it has exclusive jurisdiction (that is, jurisdiction as a court of first and last resort) over such cases.
The Plaintiff's argument regarding the special qualifications required of Supreme Court justices refers particularly to the intent of Article 41, Paragraph 1 of the Court Organization Law. However, these requirements pertain to the fact that the Supreme Court bears the grave responsibility of deciding important matters, such as questions of constitutionality, as the court of last resort.
Further, if the Supreme Court had authority to declare laws, orders, and the like invalid in the abstract as the Plaintiff contends, then, since anyone could bring a constitutionality case before the Court, the validity of laws, orders, and the like would be frequently contested, and the Court would risk appearing to be an organ superior to all other powers of the State, thereby contravening the fundamental principle of democratic government, namely, that the three powers [that is, judicial, legislative, and executive] are independent, that a balance should be maintained among them, and that they should be immune from each other's interference.
In short, under our present system, the decision of a court may be sought only when there exists a concrete legal dispute between specific parties. There is no basis whatsoever in the Constitution, laws, or statutes to support the view that the courts have authority to determine the constitutionality of laws, orders, and the like in the abstract and in the absence of a concrete case. It is clear from the Plaintiff's argument that his petition does not involve such a concrete legal dispute. Accordingly, this suit is not in conformity with law, and since neither the Supreme Court nor any lower court has jurisdiction in such a suit, it cannot be transferred to a lower court.
Therefore, this Court finds, as stated in the Decree above, that the suit should be dismissed as not in conformity with law, and liability for the costs of the proceedings are in accordance with Article 89 of the Code of Civil Procedure. This decision is unanimous.

Grand Bench of the Supreme Court

Justice TANAKA Kotaro
Justice SHIMOYAMA Seiichi
Justice INOUE Nobori
Justice KURIYAMA Shigeru
Justice MANO Tsuyoshi
Justice KOTANI Katsushige
Justice SHIMA Tamotsu
Justice SAITO Yusuke
Justice FUJITA Hachiro
Justice IWAMATSU Saburo
Justice KAWAMURA Matasuke
Justice TANIMURA Tadaichiro
Justice MOTOMURA Zentaro