2007.02.06

2006 (Gyo-Hi) 136

Minshu Vol. 61, No. 1

Judgment concerning the case where the court determined that in the suit filed by the atomic bomb survivors who had obtained recognition for eligibility for payment of health management allowances under the Act on Relief for Atomic Bomb Survivors, etc. to seek the unpaid amounts of the health management allowances of which payment was stopped when they left Japan, the assertion for extinctive prescription under Article 236 of the Local Autonomy Act made by the person liable to pay the allowances is contrary to the doctrine of good faith and therefore unacceptable

Case to seek health management allowances for atomic bomb survivors residing in Brazil

Judgment of the Third Petty Bench, dismissed

Hiroshima High Court, Judgment of February 8, 2006

In the suit filed by the atomic bomb survivors who had obtained recognition for eligibility for payment of health management allowances under the Act on Special Measures for Atomic Bomb Survivors or the Act on Relief for Atomic Bomb Survivors to seek the unpaid amounts of the health management allowances for which payment was stopped when they left Japan, the assertion for extinctive prescription under Article 236 of the Local Autonomy Act made by the person liable to pay the allowances is contrary to the doctrine of good faith and therefore unacceptable under the circumstances where: (i) the atomic bomb survivors applied for and obtained the right to receive the health management allowances as a specific right; (ii) the person liable to pay the allowances stopped payment based on the illegal directive which, without any legal ground, provided that an atomic bomb survivor who moved his/her place of residence outside Japan shall be treated as having forfeited the right to receive health management allowance; (iii) the provision of the directive has been applied to atomic bomb survivors who left Japan as from the time when they left Japan, targeting those who would generally have difficulty exercising the right after they became treated as having forfeited the right; (iv) no circumstances can be found where it seemed reasonably possible to expect the said atomic bomb survivors to exercise their right by filing a suit against the administrative treatment leading to the forfeiture of the right.
(There is a concurring opinion.)

Article 5 of the Act on Special Measures for Atomic Bomb Survivors, Article 27 of the Act on Relief for Atomic Bomb Survivors (prior to the revision by Act No. 160 of 1999), Article 236, para.2 of the Local Autonomy Act, Article 2 of the Code of Civil Procedure, Article 1, para.2 of the Civil Code

Article 5 of the Act on Special Measures for Atomic Bomb Survivors
(Payment of Health management Allowance)
(1) The prefectural governor shall pay health management 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/she intends to receive health management allowance, obtain recognition by the prefectural governor that he/she satisfies the requirements 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 management allowance shall be paid on a monthly basis, and the amount thereof shall be 28,400 yen per month.
(5) Payment of health management 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 requirements).

Article 27 of the Act on Relief for Atomic Bomb Survivors (prior to the revision by Act No. 160 of 1999)
(Payment of Health Management Allowance)
(1) The prefectural governor shall pay health management 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 intends to receive health management allowance, obtain recognition by the prefectural governor that he/she satisfies the requirements 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 management allowance shall be paid on a monthly basis, and the amount thereof shall be 33,300 yen per month.
(5) Payment of health management 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 requirements).

Article 236, para.2 of the Local Autonomy Act
(Extinctive Prescription for Monetary Claims)
(2) Extinction of monetary claims of an ordinary local public entity shall, except as otherwise provided by Acts, not require invocation of prescription, and the benefit thereof may not be waived. The same shall apply to monetary claims to an ordinary local public entity.

Article 2 of the Code of Civil Procedure
(Responsibilities of Court and Parties)
The court shall endeavor to ensure fair and speedy implementation of the civil procedure, and the parties shall pursue the civil procedure in good faith.

Article 1, para.2 of the Civil Code
(2) The exercise of rights and performance of duties must be done in good faith.

The final appeal is dismissed.
The appellant of final appeal shall bear the cost of the final appeal.

Concerning the reasons for the petition for acceptance of final appeal argued by the appeal counsel, OTAKE Takashi, et al.

1. The outline of the facts legally determined by the court of second instance is as follows:
(1) The appellees of final appeal, who are survivors of the atomic bombing in Hiroshima City, emigrated to the Federative Republic of Brazil (hereinafter referred to as "Brazil") during the period from 1955 to 1965.
(2) The Act on Medical Care, etc. for Atomic Bomb Survivors and the Act on Special Measures for Atomic Bomb Survivors were enacted in 1957 and 1968, respectively, and then these Acts were integrated into the Act on Relief for Atomic Bomb Survivors in 1994 (this Act and the Act on Special Measures for Atomic Bomb Survivors shall hereinafter be collectively referred to as the "Act on Relief for Atomic Bomb Survivors, etc."). Under Article 5 of the Act on Special Measures for Atomic Bomb Survivors or Article 27 of the Act on Relief for Atomic Bomb Survivors, Health management allowance shall be paid to an atomic bomb survivor who suffers from a disease with impaired hematopoiesis, impaired liver function, impaired circulatory function or other impairments (excluding those that are obviously not caused by the influence of radiation from the atomic bomb). The affairs concerning the payment of health management allowance were included in the scope of the affairs to be administered by the prefectural governor as the State's agency under the direction and supervision of the competent minister (i.e. Minister of Health and Welfare) (Article 148, para.2, Article 150, Appended Table 3, row 1 (10-2) of the Local Autonomy Act (prior to the revision by Act No. 87 of 1999), Appended Table 3, row 1 of the Local Autonomy Act (prior to the revision by Act No. 117 of 1994), Article 15, para.2 of the National Government Organization Act (prior to the revision by Act No. 87 of 1999)). Subsequently, upon the revision of the Local Autonomy Act by Act No. 87 of 1999, these affairs were designated as Item 1 Statutory Entrusted Affairs, which pertain to the roles originally to be played by the national government and for which the national government is required to ensure appropriate implementation thereof (Article 2, para.9, item 1, para.10, and Appended Table 1 of the same Act).
(3) The Director-General of the Public Health Bureau of the Ministry of Health and Welfare, as of July 22, 1974, issued a directive to the prefectural governors as well as the mayors of Hiroshima City and Nagasaki City, entitled "Directive on the Enforcement of the Act for Partial Revision of the Act on Medical Care, etc. for Atomic Bomb Survivors and the Act on Special Measures for Atomic Bomb Survivors, and other matters" (Directive Ei-Hatsu No. 402 of 1974; hereinafter referred to as "Directive No. 402"). This directive provided that an atomic bomb survivor who moved his/her place of residence outside the territory of Japan shall be treated as having forfeited the right to receive health management allowance under the Act on Special Measures for Atomic Bomb Survivors. Even after the Act on Relief for Atomic Bomb Survivors was enacted, this treatment introduced by Directive No. 402 was maintained in accordance with the notification given by the Vice-Minister of Health and Welfare to the prefectural governors as well as the mayors of Hiroshima City and Nagasaki City as of May 15, 1995, entitled "Notification on the Enforcement of the Act on Relief for Atomic Bomb Survivors" (Notification Hatsu-Ken-I No. 158 of 1995). However, in the Act on Relief for Atomic Bomb Survivors, etc., there was no provision that an atomic bomb survivor who moved his/her place of residence outside Japan shall forfeit the right to receive health management allowance. This means that the aforementioned provision of Directive No. 402 and the administrative practice based thereon were based on a misinterpretation of the provisions of the Act on Relief for Atomic Bomb Survivors, etc. and were therefore illegal.
(4) The appellees, during the period from 1991 to 1995, returned to Japan from Brazil temporarily, and in accordance with the Act on Relief for Atomic Bomb Survivors, etc., they obtained recognition by the Governor of Hiroshima Prefecture regarding their diseases with impaired circulatory function and other impairments and received health management allowance certificates which certified that health management allowances shall be paid to Appellee X1 and Appellee X2 for the period from June 1995 to May 2000 and to Appellee X3 for the period from June 1994 to May 1999 (these health management allowances shall hereinafter be collectively referred to as the "Health Management Allowances").
(5) The Governor of Hiroshima Prefecture, on the grounds that the appellees left Japan to Brazil soon after receiving the certificates, stopped the payment of the Health Management Allowances to Appellee X1 for the amount for July 1995 and thereafter, Appellee X2 for the amount for August 1995 and thereafter, and Appellee X3 for the amount for July 1994 and thereafter.
(6) After that, during the period from July to December 2002, the appellees filed this suit to seek payment of the Health Management Allowances. On March 1, 2003, Directive No. 402 was repealed, and both the Order for Enforcement of the Act on Relief for Atomic Bomb Survivors and the Ordinance for Enforcement of the Act on Relief for Atomic Bomb Survivors were revised to include the provisions based on the premise that a person who has received an atomic bomb survivor's healthcare certificate but does not have his/her registered place of residence or current residence in Japan is also eligible to receive health management allowance. Upon this legal revision, the appellant paid health management allowances to the appellees, deducting the portions of the Health Management Allowances for which at the time of the filing of this suit, five years had elapsed since the end of the respective coverage months, on the grounds that their right to receive allowances had been extinguished by prescription under Article 236 of the Local Autonomy Act.

2. In this case, the appellees seek, from the appellant, payment of the unpaid amounts of the Health Management Allowances and delay damages thereon under Article 5 of the Act on Special Measures for Atomic Bomb Survivors or Article 27 of the Act on Relief for Atomic Bomb Survivors.

3(1) The objective of health management allowance under the Act on Relief for Atomic Bomb Survivors, etc. is, in light of the fact that health damage by radiation generated as a result of the atomic bombing is extraordinary damage that is different from other damage from war, to pay a fixed amount on a monthly basis to atomic bomb survivors who are living in anxiety due to the suffering from impaired hematopoiesis and other impairments caused by the influence of radiation from the atomic bomb, thereby contributing to securing their health and welfare (see Article 5 of the Act on Special Measures for Atomic Bomb Survivors, and the preamble and Article 27 of the Act on Relief for Atomic Bomb Survivors). According to the facts mentioned above, although the appellees applied for and obtained the right to receive the Health Management Allowances as a specific right, the appellant treated them as having forfeited the right to receive the allowances as provided by Directive No. 402 only because they had left Japan to Brazil. What is more, there was no legal ground for this directive or the treatment based thereon. A directive is issued by an administrative organ to its subordinate administrative organ to indicate the criteria for interpretation of a certain statute so as to ensure the consistency in the administrative treatment, and therefore it does not have legal effect directly on citizens. Nevertheless, since citizens might presume that the provisions of a directive are based on some legal grounds, we must say that it was extremely difficult to expect persons who were treated as having forfeited the right to receive health management allowances based on the explicit provision of Directive No. 402, to still try to exercise the right. On the other hand, when issuing a directive to treat such an important right, which has already come into existence as a specific right, as having been forfeited, the State should make deliberation and consideration with reasonable care. Furthermore, it can be construed that the provision of Directive No. 402 on such forfeiture of the right in administrative treatment was applicable to atomic bomb survivors who left Japan as from the time when they left Japan, targeting those who would generally have difficulty exercising the right after they were treated as having forfeited the right.
Under the circumstances described above, we must say that the appellant's attempt to avoid the liability to pay the unpaid amounts of the Health Management Allowances by asserting extinctive prescription is nothing more than an attempt of an ordinary local public entity or its organ to avoid the liability to pay allowance to the person eligible for the allowance by alleging the person's failure to exercise the right to receive the allowance despite the fact that the ordinary local public entity or the organ has been entrusted with the relevant affairs by the State, which established an illegal directive and made it difficult for the eligible person to exercise the right, and has administered the affairs illegally following such illegal directive. Assuming so, it is appropriate to construe that the appellant's assertion of extinctive prescription is contrary to the doctrine of good faith and therefore unacceptable unless there were special circumstances, for example, where, notwithstanding Directive No. 402, it was reasonably possible to expect the atomic bomb survivors to exercise their right to receive allowances by filing a suit against the administrative treatment based on the directive leading to forfeiture of the right. In this case, such special circumstances cannot be found, and therefore it can be construed that the appellant is not allowed to avoid the liability to pay the unpaid amounts of the Health Management Allowances by asserting extinctive prescription.
(2) The appellant argues that since monetary claims to an ordinary local public entity prescribed in Article 236, para.2 of the Local Autonomy Act shall, pursuant to the second sentence of the said paragraph, be necessarily extinguished upon the expiration of the period of prescription without requiring invocation of prescription except as otherwise provided by Acts, there is no room to construe that the assertion of extinctive prescription is contrary to the doctrine of good faith and therefore unacceptable.
The reason why the said paragraph provides that monetary claims to an ordinary local public entity shall be extinguished by prescription without requiring the ordinary local public entity to invoke prescription seems to be the legislators' determination that due to the nature of such monetary claims, fair and uniform treatment thereof under laws and regulations will contribute to giving convenience to the ordinary local public entity in the administration of the relevant affairs and ensuring the principle of equal treatment of citizens (see Article 10, para.2 of the Local Autonomy Act) and therefore it was unnecessary to apply the provision on invocation of prescription (Article 145 of the Civil Code) to these claims. In light of such purport of the provision, the assertion of extinctive prescription for claims to an ordinary local public entity would be considered to be contrary to the doctrine of good faith and therefore unacceptable only in very limited cases.
However, the Local Autonomy Act also provides that no local public entity shall administer its affairs contrary to laws or regulations (Article 2, para.16). This duty to comply with laws and regulations is one of the most fundamental principles or policies for the administration of affairs by local public entities, and needless to say, ordinary local public entities should perform their obligations in good faith. It follows that in an exceptional case, as this case, where an ordinary local public entity, in breach of such fundamental duty, applies unilateral and uniform treatment to an important right of citizens, which has already come into existence as a specific right, to actively prevent the exercise of the right contrary to laws and regulations, thereby making it extremely difficult to exercise the right and finally making the right extinguished by prescription, we must say that there is no ground to give the convenience mentioned above to the ordinary local public entity. In such a case, even if the ordinary local public entity is prohibited from asserting prescription, it cannot be construed that such prohibition would be contrary to the principle of equal treatment of citizens, and it is difficult to consider that it would cause any special hindrance to the administration of affairs by the ordinary local public entity. Consequently, in this case, the appellant's assertion of extinctive prescription based on the provision of Article 236, para.2 of the Local Autonomy Act is unacceptable. The judicial precedent cited by the appellant (1984 (O) No. 1477, judgment of the First Petty Bench of the Supreme Court of December 21, 1989, Minshu Vol. 43, No. 12, at 2209) is irrelevant in this case because it addresses a different type of facts.

4. The determination of the court of second instance can be affirmed as going along with this reasoning. The appellant's argument cannot be accepted.

Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices except that there is a concurring opinion by Justice FUJITA Tokiyasu.

The concurring opinion by Justice FUJITA Tokiyasu is as follows.
I am in agreement with the court opinion, but I would like to add an explanation about the theoretical ground for denying extinctive prescription in this case despite the provision of Article 236, para.2 of the Local Autonomy Act.
It is widely recognized today that the doctrine of good faith is a general rule of law and the application thereof is not always precluded even when interpreting administrative laws. This also applies when we interpret and apply Article 236, para.2 of the Local Autonomy Act. We should consider that this Article never contemplated a consequence such that an ordinary local public entity is allowed to deny a claim of its citizen by alleging extinctive prescription, even in the case where the major cause of the citizen's omission to exercise the right for a long period of time can be found in the fact that the administrative entity has actively conducted illegal acts, thereby preventing the exercise of the right. In this sense, this case can be regarded as being equivalent to the case "as otherwise provided by Acts" prescribed in the proviso of para.2 of the said Article, and therefore we can find room to discuss the necessity of invoking prescription and the existence or absence of the breach of the doctrine of good faith.

Justice FUJITA Tokiyasu
Justice UEDA Toyozo
Justice HORIGOME Yukio
Justice NASU Kohei