2006.06.13

2003 (Gyo-Hi) 130

Minshu Vol. 60, No. 5

Judgment concerning the entity that is liable to pay health care allowance to the atomic bomb survivor who has obtained recognition on eligibility for payment of allowance under the Act on Relief for Atomic Bomb Survivors (prior to the revision by Act No. 87 of 1999) and has moved his/her registered place of residence outside Japan

Case to seek revocation of suspension of payment of health-care allowance to an atomic bomb survivor overseas (in the Republic of Korea)

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

Fukuoka High Court, Judgment of February 7, 2003

Where an atomic bomb survivor who has obtained recognition on eligibility for payment of health care allowance under the Act on Relief for Atomic Bomb Survivors (prior to the revision by Act No. 87 of 1999) has moved his place of residence outside Japan, the liability to pay the allowance to the atomic bomb survivor shall be assumed by the prefectural government of the atomic bomb survivor's last registered place of residence (or the government of Hiroshima City or Nagasaki City where the last registered place of residence is located in either city) that has been liable to pay it, and the national government shall not be held liable.

Article 2 and Article 3, para.1 and para.2 of the Act on Medical Care for Atomic Bomb Survivors; Article 5, Article 10, para.1 and para.2, and Article 15 of the Act on Special Measures for Atomic Bomb Survivors; Article 1, Article 2, para.1 and para.2, Article 27, Article 42, item 1, Article 43, para.1, and Article 49 of the Act on Relief for Atomic Bomb Survivors (prior to the revision by Act No. 87 of 1999); Article 148, para.1 and para.2, Article 232, Appended Table 3, row 1(10-2) of the Local Autonomy Act (prior to the revision by Act No. 87 of 1999), and; Appended Table 3, row 1(10-3) of the Local Autonomy Act (prior to the revision by Act No. 117 of 1994)

Article 2 of the Act on Medical Care for Atomic Bomb Survivors
(Definition)
The term "atomic bomb survivor" as used in this Act shall mean a person who falls under any of the following items and has received an atomic bomb survivor's certificate:
(i) A person who was, at the time of the atomic bombing, in the area of Hiroshima City or Nagasaki City or other areas adjacent to these city areas specified by a Cabinet Order.
(ii) A person who was, within a period from the time of the atomic bombing specified by a Cabinet Order, in any of the areas specified by a Cabinet Order among areas prescribed in the preceding item.
(iii) In addition to persons listed in the preceding two items, a person who was, at the time of the atomic bombing or thereafter, under circumstances in which the person's body was influenced by radiation from the atomic bomb.
(iv) A person who was an unborn child of any of the persons listed in the preceding three items at the time prescribed in the respective items.

Article 3, para.1 and para.2 of the Act on Medical Care for Atomic Bomb Survivors
(Atomic bomb survivor's certificate)
(1) A person who wishes to receive an atomic bomb survivor's certificate shall apply to the governor of the prefecture in which the person has a registered place of residence (or current residence if the person has no registered place of residence; the same shall apply hereinafter) (or the mayor of Hiroshima City or Nagasaki City if the person has a registered residence in either city; the same shall apply hereinafter).
(2) The prefectural governor shall, when he finds the applicant falls under any of the items of the preceding article as a result of the examination based on the application filed under the preceding paragraph, issue an atomic bomb survivor's certificate to the applicant.

Article 5 of the Act on Special Measures for Atomic Bomb Survivors
(Payment of health care allowance)
(1) The prefectural governor shall pay health care allowance to a person who is an atomic bomb survivor and suffers from a disease with impaired hematopoiesis, impaired liver function or other impairments specified by an Ordinance of the Ministry of Health, Labor and Welfare (excluding those that are obviously not caused by the influence of radiation from the atomic bomb); provided, however, that this shall not apply where the person receives special medical care allowance, special allowance, or atomic bomb microcephaly allowance.
(2) The person prescribed in the preceding paragraph shall, when he/she wishes to receive health care allowance, obtain recognition by the prefectural governor that he satisfies the requirement prescribed in the said paragraph.
(3) Upon giving recognition under the preceding paragraph, the prefectural governor shall also specify a period during which the disease is expected to last. In this case, such period shall not exceed the period specified by the Minister of Health and Welfare for each type of disease prescribed in para.1.
(4) Health care allowance shall be paid on a monthly basis, and the amount thereof shall be 33,300 yen per month.
(5) Payment of health care allowance shall commence in the month following the month that contains the day on which the person who has obtained recognition under para.2 applied for recognition under the said paragraph, and end in the month that contains the day on which the period set under para.3 for the person elapses from the date of application (in the case where the person ceases to satisfy the requirement prescribed in para.1 before the period elapses, the day on which the person ceases to satisfy the requirement).

Article 10, para.1 and para.2 of the Act on Special Measures for Atomic Bomb Survivors
(Payment for expenses, etc.)
(1) Required expenses for special medical care allowance, special allowance, atomic bomb microcephaly allowance, health care allowance, health allowance, nursing care allowance, and funeral allowance, as well as required expenses for the prefectural governor to manage affairs pursuant to this Act or an order issued thereunder shall be paid by the prefectural government.
(2) The national government shall, as provided by a Cabinet Order, provide the prefectural government with expenses to be paid by the prefectural government pursuant to the provision of the preceding paragraph (excluding expenses pertaining to nursing care allowance).

Article 15 of the Act on Special Measures for Atomic Bomb Survivors
(Special provisions for Hiroshima City and Nagasaki City)
In this Act, with respect to Hiroshima City and Nagasaki City, the terms "prefectural governor" and "prefectural government" shall be deemed to be replaced with "mayor" and "municipal government," respectively.

Article 1 of the Act on Relief for Atomic Bomb Survivors (prior to the revision by Act No. 87 of 1999)
(Atomic bomb survivor)
The term "atomic bomb survivor" as used in this Act shall mean a person who falls under any of the following items and has received an atomic bomb survivor's certificate:
(i) A person who was, at the time of the atomic bombing, in the area of Hiroshima City or Nagasaki City or other areas adjacent to these city areas specified by a Cabinet Order.
(ii) A person who was, within a period from the time of the atomic bombing specified by a Cabinet Order, in any of the areas specified by a Cabinet Order among areas prescribed in the preceding item.
(iii) In addition to persons listed in the preceding two items, a person who was, at the time of the atomic bombing or thereafter, under circumstances in which the person's body was influenced by radiation from the atomic bomb.
(iv) A person who was an unborn child of any of the persons listed in the preceding three items at the time prescribed in the respective items.

Article 2, para.1 and para.2 of the Act on Relief for Atomic Bomb Survivors (prior to the revision by Act No. 87 of 1999)
(Atomic bomb survivor's certificate)
(1) A person who wishes to receive an atomic bomb survivor's certificate shall apply to the governor of the prefecture in which the person has a registered place of residence (or current residence if the person has no registered place of residence).
(2) The prefectural governor shall, when he finds the applicant falls under any of the items of the preceding article as a result of the examination based on the application filed under the preceding paragraph, issue an atomic bomb survivor's certificate to the applicant.

Article 27 of the Act on Relief for Atomic Bomb Survivors (prior to the revision by Act No. 87 of 1999)
(Payment of health care allowance)
(1) The prefectural governor shall pay health care allowance to a person who is an atomic bomb survivor and suffers from a disease with impaired hematopoiesis, impaired liver function or other impairments specified by an Ordinance of the Ministry of Health and Welfare (excluding those that are obviously not caused by the influence of radiation from the atomic bomb); provided, however, that this shall not apply where the person receives special medical care allowance, special allowance, or atomic bomb microcephaly allowance.
(2) The person prescribed in the preceding paragraph shall, when he/her wishes to receive health care allowance, obtain recognition by the prefectural governor that he satisfies the requirement prescribed in the said paragraph.
(3) Upon giving recognition under the preceding paragraph, the prefectural governor shall also specify a period during which the disease is expected to last. In this case, such period shall not exceed the period specified by the Minister of Health and Welfare for each type of disease prescribed in para.1.
(4) Health care allowance shall be paid on a monthly basis, and the amount thereof shall be 33,300 yen per month.
(5) Payment of health care allowance shall commence in the month following the month that contains the day on which the person who has obtained recognition under para.2 applied for recognition under the said paragraph, and end in the month that contains the day on which the period set under para.3 for the person elapses from the date of application (in the case where the person ceases to satisfy the requirement prescribed in para.1 before the period elapses, the day on which the person ceases to satisfy the requirement).

Article 42, item 1 of the Act on Relief for Atomic Bomb Survivors (prior to the revision by Act No. 87 of 1999)
(Payment by the prefectural government)
The following expenses shall be paid by the prefectural government.
(i) Required expenses for special medical care allowance, special allowance, atomic bomb microcephaly allowance, health care allowance, health allowance, nursing care allowance, and funeral allowance, as well as required expenses for the prefectural governor to manage affairs pursuant to this Act or an order issued thereunder

Article 43, para.1 of the Act on Relief for Atomic Bomb Survivors (prior to the revision by Act No. 87 of 1999)
(Burden on the national government, etc.)
(1) The national government shall, as provided by a Cabinet Order, provide the prefectural government with expenses to be paid by the prefectural government pursuant to the provision of the preceding article, which are listed in item 1 of the said article (excluding expenses pertaining to nursing care allowance).

Article 49 of the Act on Relief for Atomic Bomb Survivors (prior to the revision by Act No. 87 of 1999)
(Special provisions for Hiroshima City and Nagasaki City)
In the provisions of this Act (excluding Article 6 and Article 51), with respect to Hiroshima City and Nagasaki City, the terms "prefectural governor" and "prefectural government" shall be deemed to be replaced with "mayor" and "municipal government," respectively.

Article 148, para.1 and para.2 of the Local Autonomy Act (prior to the revision by Act No. 87 of 1999)
(Management and execution of affairs)
(1) The head of an ordinary local public entity shall manage and execute its own affairs as well as affairs of the State or other local public entity or public body which fall under his/her jurisdiction pursuant to Acts or a Cabinet Order issued thereunder.
(2) Among the affairs of the State or other local public entity or public body which fall under the jurisdiction of a prefectural governor pursuant to the provision of the preceding paragraph, those specified in Appended Table 3 shall, in addition to those specified by this Act or a Cabinet Order issued hereunder, be managed and executed by the prefectural governor as provided by Acts or a Cabinet Order issued thereunder.

Appended Table 3, row 1(10-2) of the Local Autonomy Act (prior to the revision by Act No. 87 of 1999)
(x-2) Pursuant to the Act on Relief for Atomic Bomb Survivors (Act No. 117 of 1994) and a Cabinet Order issued thereunder, issuing atomic bomb survivor's certificates for atomic bomb survivors, providing them with medical examination and other necessary guidance, designating medical institutions for treatment of general diseases of atomic bomb survivors, paying medical care expenses and medical care expenses for general diseases, ordering people who have provided medical treatment to report or having its officials question such people, and paying special medical care allowance and other allowances to atomic bomb survivors.

Article 232 of the Local Autonomy Act (prior to the revision by Act No. 87 of 1999)
(Payment for expenses)
(1) An ordinary local public entity shall pay expenses required to administer its own affairs, expenses required for its head, its committee or member thereof, or other organ under the control of them to manage or execute the affairs of the State or other local public entity or public body which fall under the jurisdiction of them pursuant to Acts or a Cabinet Order issued thereunder, or other expenses to be borne by the ordinary local public entity pursuant to Acts or a Cabinet Order issued thereunder.
(2) Where the State, pursuant to Acts or a Cabinet Order issued thereunder, causes an ordinary local public entity, or its head, its committee or member thereof or other organ under the control of them to administer, manage or execute the affairs of the State, the State shall take necessary measures to secure financial resources to cover necessary expenses.

Appended Table 3, row 1(10-3) of the Local Autonomy Act (prior to the revision by Act No. 117 of 1994)
(1) Affairs to be managed and executed by the prefectural governor
(x-3) Paying special medical care allowance and other allowances to atomic bomb survivors pursuant to the Act on Special Measures for Atomic Bomb Survivors (Act No. 53 of 1968) and a Cabinet Order issued thereunder.

1. The original judgment shall be quashed with respect to the part for which the appellant at the court of the last resort lost the case, and the judgment of the first instance shall be revoked with respect to the said part.
2. The claim filed by the appellee at the court of the last resort shall be dismissed with respect to the part mentioned in the preceding paragraph.
3. The appellee shall bear the whole cost of the lawsuit.

Concerning the reasons for the petition for acceptance of appeal to the court of the last resort argued by the appeal counsel, TSUZUKI Hiroshi, et al
1. The appellee at the court of the last resort, who is a survivor of the atomic bombing in Nagasaki City, received an atomic bomb survivor's certificate from the mayor of Nagasaki City under the Act on Medical Care for Atomic Bomb Survivors, obtained recognition on eligibility for payment of health care allowance under the Act on Special Measures for Atomic Bomb Survivors (in accordance with Article 4, para.2 and Article 11, para.1 of the Supplementary Provisions of the Act on Relief for Atomic Bomb Survivors (prior to the revision by Act No. 87 of 1999; hereinafter the former two Acts and this Act are collectively referred to as "Three Acts for Atomic Bomb Survivors"), from July 1, 1995, the atomic bomb survivor's certificate shall be deemed to have been issued under the Act on Relief for Atomic Bomb Survivors, and people who obtained recognition on eligibility for payment shall be deemed to have obtained it under the said Act), and received health care allowance. In this case, the appellee, alleging that the payment of allowance has been suspended due to his/her leaving Japan and returning to the Republic of Korea, seeks unpaid health care allowance (for the period from November 1994 to April 1997, and for July 1997) from the appellant at the court of the last resort.

2. The court of the first instance and the court of the second instance concluded that the appellant should pay unpaid health care allowance to the appellee. The determination of the court of the second instance in this respect can be summarized as follows.
(1) The appellee obtained recognition on eligibility for payment of health care allowance in July 1994, and acquired the right to receive health care allowance for the period of payment specified as from August 1994 to July 1997. It should inevitably be concluded that there is no substantial or reasonable ground to construe, under the Three Acts for Atomic Bomb Survivors, that a person who has acquired the status of "atomic bomb survivor" shall lose such status when he ceases to have a registered or non-registered current residence in Japan. Rather it should be construed that the appellee, even after leaving Japan and ceasing to have a registered or non-registered current residence in Japan, shall never lose the status of "atomic bomb survivor" and therefore continue to have the right to receive health care allowance.
(2) The payment of various allowances prescribed in the Act on Special Measures for Atomic Bomb Survivors and the Act on Relief for Atomic Bomb Survivors shall, as affairs mandated by the appellant, be administered by the prefectural governor (or the mayor of Hiroshima City or Nagasaki City pursuant to Article 15 of the Act on Special Measures for Atomic Bomb Survivors and Article 49 of the Act on Relief for Atomic Bomb Survivors; the same shall apply hereinafter). Since it can be construed that the authority and responsibility for the administration of these affairs shall be reserved by the appellant and their effects shall be attributed to the appellant, it is appropriate to construe that, unless otherwise provided by laws and regulations, the appellant shall be liable to pay such allowances. With respect to atomic bomb survivors overseas who acquired the status of "atomic bomb survivor" and then left Japan and ceased to have a registered or non-registered current residence in Japan, such as the appellee, neither the Act on Special Measures for Atomic Bomb Survivors nor the Act on Relief for Atomic Bomb Survivors provides for any procedure for or entity in charge of paying allowances. Nor is there any specific provision under the Local Autonomy Act (prior to the revision by Act No. 87 of 1999; the same shall apply hereinafter unless otherwise mentioned) that makes up for the lack of legal provisions on such procedure or entity for payment, and therefore it cannot be deemed that there are special provisions of laws or regulations. Consequently, it is appropriate to construe, following the above-mentioned general principle that the authority and responsibility for the payment of allowances to atomic bomb survivors overseas, including the appellee, shall lie with the appellant who is the mandator of the affairs, and therefore the appellant, instead of the government of Nagasaki City, shall be liable to pay health care allowance.

3. The determination of the court of the second instance mentioned in 2(1) above can be affirmed, but the determination mentioned in 2(2) cannot be affirmed, on the following grounds:
(1) Under the Three Acts for Atomic Bomb Survivors, a person who wishes to receive an atomic bomb survivor's certificate shall apply to the governor of the prefecture in which the person has a registered place of residence (or current residence if the person has no registered place of residence; the same shall apply hereinafter) (Article 3, para.1 of the Act on Medical Care for Atomic Bomb Survivors, Article 2, para.1 of the Act on Relief for Atomic Bomb Survivors). An atomic bomb survivor who has received an atomic bomb survivor's certificate from the prefectural governor and wishes to receive health care allowance shall obtain recognition by the prefectural governor that he/she satisfies the requirement therefor, and the prefectural governor shall pay allowance to such atomic bomb survivor who satisfies the requirement (Article 5 of the Act on Special Measures for Atomic Bomb Survivors, Article 27 of the Act on Relief for Atomic Bomb Survivors).
Under Article 148, para.2 and Appended Table 3, row 1(10-2) of the Local Autonomy Act, and Appended Table 3, row 1(10-3) of the Local Autonomy Act (prior to the revision by Act No. 117 of 1994), the payment by the prefectural governor of health care allowance pursuant to the above-mentioned provisions of the Act on Special Measures for Atomic Bomb Survivors and the Act on Relief for Atomic Bomb Survivors is included in the category of affairs mandated to ordinary local public entities by the State.
(2) With respect to affairs mandated by the State, the heads of ordinary local public entities shall administer the affairs as the State's agency (Article 150 of the Local Autonomy Act, Article 15, para.2 of the National Government Organization Act prior to the revision by Act No. 87 of 1999). However, this does not necessarily lead to the conclusion that the State shall be liable to pay expenses required to administer such affairs.
Article 232, para.1 of the Local Autonomy Act provides that an ordinary local public entity shall pay expenses required for its head to manage or execute the affairs of the State which fall under his/her jurisdiction pursuant to Acts or a Cabinet Order issued thereunder, and in this context, the ordinary local public body, not the State, shall be the debtor that is liable to pay, from its own fiscal resources, expenses required to administer such affairs mandated by the State. Based on this provision, para.2 of the said article further provides that where the State, pursuant to Acts or a Cabinet Order issued thereunder, causes the head of the ordinary local public entity to administer, manage or execute the affairs of the State, the State shall take necessary measures to secure financial resources to cover necessary expenses, and in this respect, the proviso of Article 9, and Article 10 to Article 10-4 of the Local Finance Act (prior to the revision by Act No. 87 of 1999) provide that the State may ultimately bear the whole or part of the expenses paid by the ordinary local public body.
In addition, both the Act on Special Measures for Atomic Bomb Survivors and the Act on Relief for Atomic Bomb Survivors provide that expenses required to pay health care allowance and other allowances and expenses required for the prefectural governor to manage affairs pursuant to the Act or an order issued thereunder shall be paid by the prefectural government (or Hiroshima City or Nagasaki City; the same shall apply hereinafter) (Article 10, para.1 and Article 15 of the Act on Special Measures for Atomic Bomb Survivors, Article 42, item 1 and Article 49 of the Act on Relief for Atomic Bomb Survivors), and also provide that the national government shall, as provided by a Cabinet Order, provide the prefectural government with expenses to be paid by the prefectural government (excluding expenses pertaining to nursing care allowance) (Article 10, para.2 of the Act on Special Measures for Atomic Bomb Survivors, Article 43, para.1 of the Act on Relief for Atomic Bomb Survivors). Thus, these Acts provide that, in line with the above-mentioned principle of paying expenses for mandated State affairs by the prefectural government, the prefectural government shall pay, and therefore be the debtor of, expenses required for payment of health care allowance, which is a part of the affairs mandated by the State to the prefectural governor.
As explained above, with regard to health care allowance payable based on the right to seek allowance that has come into existence and become established by a prefectural governor's recognition on eligibility for payment, the prefectural government headed by the prefectural governor shall be liable to pay allowance to eligible people, and the national government shall not be held liable.
(3) Under Article 3 of the Order for Enforcement of the Act on Medical Care for Atomic Bomb Survivors, Article 4 of the Ordinance for Enforcement of the Act on Medical Care for Atomic Bomb Survivors, Article 3 of the Order for Enforcement of the Act on Relief for Atomic Bomb Survivors (prior to the revision by Cabinet Order No. 148 of 2002), and Article 4 of the Ordinance for Enforcement of the Act on Relief for Atomic Bomb Survivors, where the person who has acquired an atomic bomb survivor's certificate moves his/her registered place of residence to the area of another prefecture, the following procedure shall be taken: the person shall report such change of place of residence to the prefectural governor of the new place of residence; the prefectural governor of the new place of residence shall notify the prefectural governor of the former place of residence to that effect; the prefectural governor of the new place of residence shall enter, in the register of the atomic bomb survivor's healthcare certificate, necessary matters relating to the person's move to the new place of residence, while the prefectural governor of the former place of residence shall delete, from the register of the atomic bomb survivor's healthcare certificate, matters relating to the person. Furthermore, under the Ordinance for Enforcement of the Act on Special Measures for Atomic Bomb Survivors and the Ordinance for Enforcement of the Act on Relief for Atomic Bomb Survivors (prior to the revision by Ordinance of the Ministry of Health, Labor and Welfare No. 74 of 2002; the same shall apply hereinafter), where the person who is eligible for payment of health care allowance moves his registered place of residence, the person shall submit a written notice stating necessary matters to the prefectural governor of the new place of residence, with his/her resident card and other related documents attached thereto, and the prefectural governor, upon receiving such a notice from the person who has moved into the area of his/her prefecture, shall notify in writing the prefectural governor of the former place of residence to that effect (Article 7 as applied mutatis mutandis pursuant to Article 23 of the Ordinance for Enforcement of the Act on Special Measures for Atomic Bomb Survivors, Article 35 as applied mutatis mutandis pursuant to Article 54 of the Ordinance for Enforcement of the Act on Relief for Atomic Bomb Survivors). These provisions are seemingly aimed to ensure smooth operation of the procedure for payment by stipulating that in the case where a person eligible for payment moves his/her registered place of residence within Japan, the prefectural governor of the new place of residence shall become the mandatory with respect to payment of the allowance to that person and his/her prefectural government shall be liable to pay the allowance. However, at the time alleged by the appellant, there was no such provision for dealing with the case where an atomic bomb survivor left Japan and moved his/her place of residence outside Japan, nor was there any provision on the entity responsible for the allowance, or procedure for payment applicable to such case.
(4) Consequently, the liability to pay health care allowance to an atomic bomb survivor who has obtained recognition on eligibility for payment shall be, in principle, assumed by the prefectural government headed by the prefectural governor who has given such recognition, and where an atomic bomb survivor subsequently changes his/her registered place of residence, the prefectural governor of the new place of residence takes charge of payment of allowance and his/her prefectural government shall be held liable. However, because there is no such provision stipulating that in the case of a change of the place of residence outside Japan, the liability for payment shall also move to another entity, where an atomic bomb survivor has moved his/her place of residence out of Japan, the prefectural government of the atomic bomb survivor's last registered place of residence shall continue to be liable to pay allowance; there is no ground to construe that the national government shall be held liable.
As pointed out in the determination of the court of the second instance mentioned in 2(1) above, the appellee's claim for health care allowance should be upheld based on the right to seek allowance that came into existence and became established by the recognition on eligibility for payment given by the mayor of Nagasaki City, and therefore it is appropriate to construe that even though the appellee left Japan and currently resides overseas, the government of Nagasaki City is still liable to pay allowance. It should inevitably be concluded that the appellant is not liable to pay allowance to the appellee.

4. For the reasons stated above, the determination of the court of the second instance mentioned in 2(2) above contains an apparent violation of laws and regulations that has affected the judgment. The appellant's argument is well-grounded in this respect, and the original judgment should inevitably be quashed with respect to the part for which the appellant lost the case. Based on the reasoning explained above, it is appropriate to revoke the judgment of the first instance with respect to the said part, and dismiss the appellee's claim to seek unpaid health care allowance from the appellant.

Therefore, the judgment was rendered in the form of the main text by the unanimous consent of the Justices.

Justice FUJITA Tokiyasu
Justice HAMADA Kunio
Justice UEDA Toyozo
Justice HORIGOME Yukio