2007.09.28

2005 (Gyo-Tsu) 246

Minshu Vol. 61, No. 6

Judgment concerning unconstitutionality under Article 25 and Article 14, para.1 of the Constitution of the facts that [1] the National Pension Act (prior to the revision by Act No. 86 of 1989) excluded students as defined by the said Act from the scope of compulsorily participating insured persons for national pension and allowed these students only to voluntarily participate in the national pension system, thereby applying different treatment between students and compulsorily participating insured persons with regard to participation in the national pension system and the application of the exemption from contribution payment, and [2] the legislature failed, prior to the said revision, to take measures such as compulsorily requiring students to participate in the national pension system

Case to seek rescission of the ruling of non-payment of disability basic pension

Judgment of the Second Petty Bench, dismissed

Tokyo High Court, Judgment of March 25, 2005

1. Violation of Article 25 and Article 14, para.1 of the Constitution cannot be found in the facts that [1] the National Pension Act (prior to the revision by Act No. 86 of 1989) excluded students as defined in Article 7, para.1, item 1(a) of the said Act (Article 7, para.2, item 8 of the National Pension Act prior to the revision by Act No. 34 of 1985) from the scope of compulsorily participating insured persons for national pension and allowed students only to voluntarily participate in the national pension system, thereby applying different treatment between students and compulsorily participating insured persons with regard to participation in the national pension system and the application of the exemption from contribution payment, and [2] the legislature, prior to the revision of the National Pension Act by Act No. 86 of 1989, failed to take measures such as compulsorily requiring students to participate in the national pension system.

2. Violation of Article 25 and Article 14, para.1 of the Constitution cannot be found in the fact that the legislature, prior to the revision of the National Pension Act by Act No. 86 of 1989, failed to take measures such as adopting a legal provision that non-contributory pension benefit shall be paid to persons with disabilities who fell within the scope of students as defined in Article 7, para.1, item 1(a) of the said Act (Article 7, para.2, item 8 of the National Pension Act prior to the revision by Act No. 34 of 1985) as of the date of first medical examination.

(Concerning 1 and 2) Article 14, para.1 and Article 25 of the Constitution; Article 7, para.1 and para.2, item 8, and Article 30, para.1 of the National Pension Act (prior to the revision by Act No. 34 of 1985) and Article 6, para.1 and para.6 of the Supplementary Provisions of the said Act; Article 7, para.1, item 1(a) of the National Pension Act (prior to the revision by Act No. 86 of 1989), and Article 5, para.1, item 1 of the Supplementary Provisions of the said Act, Article 90 of the National Pension Act (prior to the revision by Act No. 18 of 2000), and Article 5, para.10 of the Supplementary Provisions of the said Act; and Article 30, para.1 and Article 89 of the current National Pension Act;
(Concerning 2) Article 30-4 of the current National Pension Act; and Article 57 of the National Pension Act (prior to the revision by Act No. 34 of 1985)

Article 14, para.1 of the Constitution
(1) All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.

Article 25 of the Constitution
(1) All people shall have the right to maintain the minimum standards of wholesome and cultured living.
(2) In all spheres of life, the State shall use its endeavors for the promotion and extension of social welfare and security, and of public health.

Article 7, para.1 and para.2, item 8 of the National Pension Act (prior to the revision by Act No. 34 of 1985)
(Qualification of the Insured Person)
(1) Any person aged 20 or over but under 60 who has domicile in Japan shall be an insured person for national pension.
(2) Notwithstanding the provision of the preceding paragraph, a person who falls under any of the categories listed in the following items shall not be an insured person for national pension:
(viii) A student enrolled in any of the following schools; provided, however, that a student enrolled in a part-time course or correspondence course of a high school prescribed in Article 4 of the School Education Act (Act No. 26 of 1947), an evening course of a university prescribed in Article 54 of the said Act or an evening course of a junior college prescribed in Article 69-2, para.6 of the said Act, or student who receives education by correspondence as prescribed in Article 54-2 of the said Act (including the cases where it is applied mutatis mutandis pursuant to Article 76 of the said Act) shall be excluded:
(a) a high school prescribed in Article 41 of the School Education Act (including an upper secondary department of a school for the blind, school for the deaf or school for the otherwise disabled), and national school equivalent thereto that is designated by the Minister of Health and Welfare;
(b) a university prescribed in article 52 of the School Education Act (including a graduate college prescribed in Article 62 of the said Act), junior college prescribed in Article 69-2, para.2 of the said Act, and national school equivalent thereto that is designated by the Minister of Health and Welfare;
(c) a college of technology prescribed in Article 70-2 of the School Education Act, and national school equivalent thereto that is designated by the Minister of Health and Welfare

Article 30, para.1 of the National Pension Act (prior to the revision by Act No. 34 of 1985)
(Requirements for Receiving Payment of Pension)
(1) Disability pension shall be paid to a person who suffered a disease or injury and satisfies the following requirements in the case where, as of the day on which one year and six months have elapsed from the day on which the person received medical examination by a medical practitioner or dental practitioner for the said disease or injury or any other disease arising therefrom (hereinafter referred to as a "disease or injury") for the first time (hereinafter referred to as the "date of first medical examination") (the day on which the said one year and six month-period has elapsed, or where the disease or injury has been cured within the said period, the day on which it was cured (or the day on which its symptoms became fixed to the extent that no medical treatment can be expected to be effective when applied thereto), is hereinafter referred to as the "date of recognition of disability"), the person is in a disabled state due to a disease or injury to the level specified in the appended table.
(i) In the case of a person who was an insured person as of the date of first medical examination, the person shall meet any of the following conditions as of the day preceding the date of first medical examination:
(a) the period for which contribution payment was made during his/her insured period until the month preceding the month that includes the date of first medical examination is 15 years or more, or the period for which contribution payment was made is five years or more and accounts for two-thirds or more of his/her insured period, excluding any period for which exemption from contribution payment was granted.
(b) the person's insured period until the month preceding the most recent base month (meaning January, April, July or October; the same shall apply hereinafter) prior to the month that includes the date of first medical examination is three years or more, and the last three years of his/her insured period include no period other that the period for which contribution payment was made or the period for which exemption from contribution payment was granted.
(c) the total of the periods referred to in the items of Article 4, para.1 of the Act on General Rules for Aggregate Pension until the month preceding the most recent base month prior to the month that includes the date of first medical examination is one year or more, and the one-year period until the said month contains no insured period that is not included in the period for which contribution payment was made.
(d) the person satisfies the requirements of Article 26 with regard to his/her insured period until the month preceding the month that includes the date of first medical examination.
(ii) In the case of a person who was not an insured person as of the date of first medical examination, the person shall be aged under 65 as of the date of first medical examination, and satisfy the requirements under Article 26 as of the day preceding the date of first medical examination.

Article 6, para.1 and para.6 of the Supplementary Provisions of the National Pension Act (prior to the revision by Act No. 34 of 1985)
(1) A person who was born on April 2, 1911, or thereafter (who was aged under 50 as of April 1, 1961) and to whom Article 7, para.2 is applicable may, notwithstanding the provision of the said paragraph, become an insured person by filing an application to the prefectural governor; provided, however, that this shall not apply to any person to whom item 1 of the said paragraph is applicable and a person to whom para.1 of the said Article is not applicable.
(6) The provisions of Article 89 and Article 90 shall not apply to a person insured under the provision of para.1.

Article 7, para.1, item 1(a) of the National Pension Act (prior to the revision by Act No. 86 of 1989)
(Qualification of the Insured Person)
(1) A person who falls under any of the categories listed in the following items shall be an insured person for national pension:
(i) A person aged 20 or over but under 60 who has domicile in Japan and does not fall under the categories specified in the next item or item 3 (excluding one who falls under any of the following categories; hereinafter referred to as a "Category 1 insured person")
(a) A student of a high school prescribed in Article 41 of the School Education Act (Act No. 26 of 1947), student of a university prescribed in Article 52 of the said Act, and any other student designated by a Cabinet Order

Article 5, para.1, item 1 of the Supplementary Provisions of the National Pension Act (prior to the revision by Act No. 86 of 1989)
(Voluntarily Insured Person)
(1) A person who falls under any of the categories listed in the following items (excluding a Category 2 insured person and a Category 3 insured person) may, notwithstanding the provision of Article 7, para.1, become an insured person by filing an application to the prefectural governor.
(i) A person aged 20 or over but under 60 who has domicile in Japan and falls under any of the categories set forth in Article 7, para.1 item 1(a) or (b) or falls under the category of person specified by a Cabinet Order referred to in Article 4, para.1 of the Supplementary Provisions

Article 90 of the National Pension Act (prior to the revision by Act No. 18 of 2000)
(1) Upon receiving an application from an insured person who falls under any of the cases listed in the following items, the Commissioner of the Social Insurance Agency may give a disposition to exempt the insured person from paying contributions payable for the period from the month preceding the month in which the application was made until the month that the Commissioner designates, except for contributions already paid and contributions paid in advance under Article 93, para.1; provided, however, that this shall not apply where the householder of the insured person's household or the insured person's spouse is found not to have significant difficulty in paying such contributions.
(i) Where the insured person has no income.
(ii) Where the insured person or any other member of the insured person's household receives any supports other than living supports under the Public Assistance Act or any other assistances, which are designated by an Ordinance of the Ministry of Health and Welfare.
(iii) Where the insured person is a person with disabilities as defined in the Local Tax Act (Act No. 226 of 1950), and his/her annual income is not more than the amount specified by a Cabinet Order.
(iv) Where the insured person is a widow as defined in the Local Tax Act, and her annual income is not more than the amount specified by a Cabinet Order set forth in the preceding item.
(v) Where the insured person is found to have significant difficulty in paying contributions for any other reasons.
(2) Where the disposition has been given under the preceding paragraph, with regard to the application of the provisions on the requirements for receiving payment of pension benefits and the amount thereof, such disposition shall be deemed to have been made on the day on which the application was filed.

Article 5, para.10 of the Supplementary Provisions of the National Pension Act (prior to the revision by Act No. 18 of 2000)
(Voluntarily Insured Person)
(10) The provisions of Article 89 and Article 90 shall not apply to a person insured under para.1.

Article 30, para.1 of the National Pension Act
(Requirements for Receiving Payment of Pension)
(1) Disability basic pension shall be paid to a person who suffered a disease or injury, and satisfied the following requirements as of the day on which the person received medical examination by a medical practitioner or dental practitioner for the said disease or injury or any other disease arising therefrom (hereinafter referred to as the "diseases or injury") for the first time (hereinafter referred to as the "date of first medical examination") in the case where, as of the day on which one year and six months have elapsed from the date of first medical examination (such day shall hereinafter be referred to as the "date of recognition of disability"; where the disease or injury has been cured within the said period, the day on which it was cured (or the day on which its symptoms became fixed to the extent that no medical treatment can be expected to be effective when applied thereto) shall be deemed to be the date of recognition of disability), the person is in a disabled state due to a disease or injury to the level that corresponds to any of the disability grades prescribed in the next paragraph; provided, however, that this shall not apply where, as of the day preceding the date of first medical examination for the disease or injury, the person had been an insured person for a certain period two months before the month that includes the date of first medical examination, and the total of the period for which contribution payment was made and the period for which exemption from contribution payment was granted during such insured period accounts for less than two-thirds of such insured period.
(i) The person is an insured person.
(ii) The person was an insured person, has domicile in Japan, and is aged 60 or over but under 65.

Article 89 of the National Pension Act
Where an insured person (excluding insured persons who shall be subject to Article 90-2, para.1 to para.3) has come to fall under any of the cases listed in the following items, he/she shall not be required to pay contributions payable for the period from the month preceding the month in which the insured person came to fall under the case until the month in which he/she no longer falls under the case, except for contributions already paid and contributions paid in advance under Article 93, para.1.
(i) Where the insured person is an eligible recipient of disability basic pension or pension benefits to be paid by reason of a disability under employees' pension laws or any other benefits to be paid by reason of a disability that are specified by a Cabinet Order (excluding an eligible recipient of disability basic pension who has not been in a disabled state to the level that corresponds to any of the disability grades prescribed in Article 47, para.2 of the Welfare Pension Insurance Act (hereinafter referred to as the "disabled state" in this item) for three years since the last day on which he/she was in the disabled state (limited to one who currently is not in the disabled state) and any other person specified by a Cabinet Order).
(ii) Where the insured person receives living supports under the Public Assistance Act (Act No. 144 of 1950) or any other assistances designated by an Ordinance of the Ministry of Health, Labour and Welfare.
(iii) In addition to what is listed in the preceding two items, where the insured person stays in a facility designated by an Ordinance of the Ministry of Health, Labour and Welfare.

Article 30-4 of the National Pension Act
(1) Where a person who suffered a disease or injury, and was aged under 20 as of the date of first medical examination is in a disabled state to the level that corresponds to any of the disability grades as of the day on which the person reaches the age of 20 if the said day is later than the date of recognition of disability or as of the date of recognition of disability if the said day is prior to the date of recognition of disability, disability basic pension shall be paid to that person.
(2) Where a person who suffered a disease or injury and was aged under 20 as of the date of first medical examination (limited to a person who is not an insured person as of the said day) has gone into a disabled state to the level that corresponds to any of the disability grades during the period after the day on which the person reaches the age of 20 if the said day is later than the date of recognition of disability or after the date of recognition of disability if the said day is prior to the date of recognition of disability, until the day preceding the day on which the person reaches the age of 65, the person may demand payment of disability basic pension set forth in the preceding paragraph during the said period.
(3) The provision of Article 30-2, para.3 shall apply mutatis mutandis to the case set forth in the preceding paragraph.

Article 57 of the National Pension Act (prior to the revision by Act No. 34 of 1985)
(1) Where a person who suffered a disease or injury and was aged under 20 as of the date of first medical examination is in a disabled state to the level specified in the appended table as of the day on which the person reaches the age of 20 if the said day is later than the date of recognition of disability or as of the date of recognition of disability if the said day is prior to the date of recognition of disability, the person shall, with regard to the application of the provision of Article 56, para.1, be deemed to satisfy the requirements for receiving payment of disability welfare pension under the said paragraph. The same shall apply where a person who suffered a disease or injury and was aged under 20 as of the date of first medical examination has gone into a disabled state to the level specified in the appended table during the period after the day on which the person reaches the age of 20 if the said day is later than the date of recognition of disability or after the date of recognition of disability if the said day is prior to the date of recognition of disability, until the day preceding the day on which the person reaches the age of 65.
(2) The provision of Article 30-2, para.3 shall apply mutatis mutandis to disability welfare pension to be paid under the second sentence of the preceding paragraph, and the provisions of Article 31, para.2 and Article 32 shall apply mutatis mutandis in the case where an eligible recipient of disability welfare pension under the preceding paragraph has acquired, pursuant to Article 30, para.2 or Article 30-2, para.2, the right to receive disability pension for the level of disability corresponding to the combined disability state of the initial disability with another disability resulting from a disease or injury that the person has additionally suffered.

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

The National Pension Act is hereinafter referred to as the "Act." Each of the revisions to the Act is indicated as listed in the appended table.
I. Concerning the parts of Reasons I and IV for final appeal argued by the appeal counsels, ARAI Akira, et al., alleging that the provision of Article 7, para.2, item 8 of the Act prior to the revision in 1985, Article 7, para.1, item 1(a) of the Act prior to the revision in 1989 and other provisions of the Act are unconstitutional under Article 14 and Article 25 of the Constitution
1. Article 30, para.1, item 1 of the Act specifies the requirements for receiving payment of disability basic pension (referred to as disability pension prior to the revision in 1985; disability basic pension and disability pension are hereinafter collectively referred to as "disability basic pension, etc."), providing that disability basic pension, etc. shall be paid to a person who was an insured person for national pension as of the date of first medical examination of his/her disease or injury.
According to the Act, in principle, a person aged 20 or over but under 60 who has domicile in Japan shall automatically become an insured person for national pension (Article 7, para.1 of the Act prior to the revision in 1985, Article 7, para.1, item 1 of the Act; this is generally referred to as "compulsory participation." A person who has become an insured person through this compulsory participation system is hereinafter referred to as a "compulsorily insured person"). However, prior to the revision in 1989, the Act made an exception for a certain scope of students including students of high schools and universities (excluding students enrolled in part-time courses, correspondence courses or evening courses; students eligible for the exception are hereinafter referred to as "students aged 20 or over") (Article 7, para.2, item 8 of the Act prior to the revision in 1985, Article 7, para.1, item 1(a) of the Act prior to the revision in 1989; these provision are hereinafter referred to as the "exception to compulsory participation"), and gave these students the option of voluntary participation which has allowed them to become insured persons for national pension upon their applications to the prefectural governors (Article 6, para.1 of the Supplementary Provisions of the Act prior to the revision in 1985, Article 5, para.1, item 1 of the Supplementary Provisions of the Act prior to the revision in 1989).
The Act also provides for an exemption for a compulsorily insured person from the liability to pay contributions (Article 89 of the Act, Article 90 of the Act prior to the revision in 2000; these provisions are hereinafter referred to as the "exemption from contribution payment"), and prescribes that disability basic pension, etc. shall be paid to a person eligible for the exemption if he/she satisfies certain requirements (Article 30, para.1, item 1 of the Act prior to the revision in 1985, Article 20, para.1 of the Supplementary Provisions of Act No. 34 of 1985, the proviso of Article 30, para.1 of the Act). On the other hand, the Act does not apply the exemption from contribution payment to a person who has become an insured person for national pension through voluntary participation (hereinafter referred to as a "voluntarily insured person") (Article 6, para.6 of the Supplementary Provisions of the Act prior to the revision in 1985, Article 5, para.10 of the Supplementary Provisions of the Act prior to the revision in 2000) and prescribes that a voluntarily insured person shall be disqualified as an insured person if he/she fails to pay contributions by the due date (Article 6, para.5, item 4 of the Supplementary Provisions of the Act prior to the revision in 1985, Article 5, para.6, item 4 of the Supplementary Provisions of the Act).
As a result, under the Act prior to the revision in 1989, even where a student aged 20 or over has gone into a disabled state due to a disease or injury, the student is, unless he/she had voluntarily participated in the national pension system and paid contributions, ineligible to receive payment of disability basic pension, etc. on the grounds that he/she is not an insured person for national pension as of the date of first medical examination. Furthermore, among persons aged 20 or over but under 60 who are unable to pay contributions, there was a disparity in terms of receipt of disability basic pension, etc. between students aged 20 or over and others, which resulted from the different treatments with regard to the participation in the national pension system and the application of the exemption from contribution payment (these different treatments are hereinafter collectively referred to as the "different treatments with regard to participation, etc.")
2. The national pension system is a system for social insurance established with the aim of achieving the purpose of Article 25 of the Constitution. However, the legislature has broad discretion to choose a specific legislative measure to be taken in line with the purpose of the said Article, and unless the legislature's choice should inevitably be deemed to be significantly unreasonable and go beyond the bounds of the legislature's discretionary power or constitute an abuse of such power, we must say that it is not suitable for the court to examine and judge constitutionality of such a system. At the same time, we cannot deny that if any law or regulation established in line with the purpose of Article 25 of the Constitution applies an unfair discriminatory treatment in terms of the scope of eligible recipients of national pension or the requirements for receiving payment of pension without any reasonable cause, this would raise a question of unconstitutionality under Article 14 of the Constitution (See 1976 (Gyo-Tsu) No. 30, judgment of the Grand Bench of the Supreme Court of July 7, 1982, Minshu Vol. 36, No. 7, at 1235).
3. The national pension system aims to prevent, through cooperation and solidarity among citizens, the stability of their livelihood from being undermined due to aging, suffering disability or death, and it is designed by applying an insurance method whereby pension benefits shall be paid from the contributions collected from insured persons (Article 1 and Article 87 of the Act). In addition, it is founded as a pension system for persons who are not covered by the Welfare Pension Insurance Act or other employees' pension laws under which pension benefits are to be paid based on employment relationships (e.g. persons engaged in agricultural, fishery or forestry industries, self-employed persons, etc.) For these reasons, the scope of compulsorily insured persons is defined by the age range during which people are generally expected to have a job and ability to pay contributions. While taking into consideration the balance with other public pension systems, it is provided that a person aged 20 or over but under 60 is, in principle, a compulsorily insured person (Article 7, para.1 of the Act prior to the revision in 1985). Even in the revision of the Act in 1985, which introduced the basic pension system under which all citizens, including those insured under employees' pension laws, shall be compulsory insured persons under the national pension system, the scope of Category 1 insured persons (Article 7, para.1, item 1 of the Act prior to the revision in 1989) was basically defined by the said age range.
Students (including students of high schools, etc.; the same shall apply hereinafter) are, except for those who are enrolled in evening courses, etc. and receive education while working, generally not engaged in income-generating activities even after they reach the age of 20, and therefore they have no income or ability to pay contributions. In most cases, persons aged 20 or over have the status of students only for a few years, and it is generally unlikely for them to go into a seriously disabled state due to a disease or injury during such a short period of time. What is more, most students get employed after graduation, and even under the Act prior to the revision in 1989, they were supposed to receive security by public pension under employees' pension laws. On the other hand, the allocation of contributions to the national pension fund is determined while placing importance on old-age pension (or old-age basic pension after the revision in 1985) and considering an appropriate level of pension benefits and pension contributions under the old-age pension system, and only a small part of the contributions collected from insured persons are appropriated as financial sources for paying benefits of disability pension (or disability basic pension under after the revision in 1985). For students aged 20 or over, before graduation, it is not so necessary to prepare for their aging or death, and we also cannot go so far as to say that it brings practical benefits worth the burden of contribution payment to become an insured person for national pension almost exclusively against the risk of diminishment of their ability to earn income due to becoming disabled. Furthermore, it is provided that whether or not to exempt an insured person from the liability to pay contributions should be determined by taking into consideration whether or not it is significantly difficult for the householder of the insured person's household or any other person who is jointly and severally liable to pay contributions on behalf of the insured person (Article 88, para.2 of the Act) to pay contributions (the proviso of Article 90, para.1 of the Act prior to the revision in 2000). In light of this, if, under the Act prior to the revision in 1989, all students were required to pay contributions as compulsorily insured persons and to satisfy the same requirements as those for other compulsorily insured persons in order to receive the exemption of contribution payment, students would never be able to receive the exemption as long as the householders of their households (e.g. parents) have considerable income, in which case the householders of students' households would have to pay not only school expenses and living expenses for the students but also contributions to national pension on behalf of the students.
On the other hand, for persons with disabilities, various measures have been taken under the Basic Act for Persons with Disabilities and other relevant laws, and livelihood assistance under the Public Assistance Act is also available.
In light of all of these circumstances, we cannot find it significantly unreasonable that the Act prior to the revision in 1989, while taking into consideration the ability of students aged 20 or over to pay contributions, the degree of necessity and practical benefits for their participation in the national pension system, and the economic burden to be borne by the students and the householders of their households, etc. upon participation, as well as the purpose of the national pension system founded by applying an insurance method, did not require all students aged 20 or over to pay contributions as compulsorily insured persons for national pension but gave these students the option of voluntary participation which allowed them to choose whether or not to participate in the national pension system. Therefore, we cannot find the different treatments with regard to participation, etc. to be unfair discriminatory treatments applied without reasonable cause.
It is true that, as explained above, the different treatments with regard to participation, etc. caused a disparity in terms of receipt of disability basic pension, etc. between students aged 20 or over and other persons aged 20 or over but under 60 who are unable to pay contributions. However, the issues such as whether or not the requirements concerning contribution payment to be satisfied in order to receive payment of disability basic pension, etc., which are operated based on a contributory system, should be relaxed and to what extent these requirements should be relaxed are closely related to the financial base for the national pension program and the State's fiscal situation, and in this respect, the legislature should be deemed to have broad discretion to decide these issues. Therefore, we cannot say that the existence of the disparity affects our reasoning mentioned above.
Consequently, with respect to the exception to compulsory participation and other above-mentioned measures taken by the legislature under the Act prior to the revision in 1989 for students aged 20 or over, the different treatments with regard to participation, etc. applied to these students under the said Act, as well as the legislature's failure to take, prior to the revision of the Act in 1989, the measures alleged by the appeal counsels such as legally requiring students aged 20 or over to become compulsorily insured persons, we deny unconstitutionality under Article 25 or Article 14, para.1 of the Constitution.
This is evident from the gist of the aforementioned judgment of the Grand Bench of the Supreme Court and 1962 (O) No. 1472, judgment of the Grand Bench of the Supreme Court of May 27, 1964, Minshu Vol. 18, No. 4, at 676. The determination of the court of second instance that goes along with this reasoning can be affirmed as justifiable. The appeal counsels' argument cannot be accepted.

II. Concerning the part of Reasons II and IV for final appeal argued by the appeal counsels, alleging that the legislature's omission to take measures such as stipulating by law that non-contributory pension benefits shall be paid to students aged 20 or over is unconstitutional under Article 14 and Article 25 of the Constitution
1. Article 30-4 of the Act (Article 57 of the Act prior to the revision in 1985) provides that where, for example, a person who was aged under 20 as of the date of first medical examination of his/her disease or injury reaches to the specified level of disabled state as of the day on which the person reaches the age of 20 after the date of recognition of disability, such person (hereinafter referred to as a "person recognized as being disabled before reaching the age of 20") shall, depending on the level of his/her disabled state, receive payment of disability basic pension (or disability welfare pension prior to the revision in 1985; disability basic pension and disability welfare pension are hereinafter collectively referred to as "disability basic pension, etc. for persons recognized as being disabled before reaching the age of 20") which is noncontributory pension benefits.
Where a person, before reaching the age of 20 at which he/she is to be qualified as an insured person for national pension, suffered a disease or injury, and went into a seriously disabled state, such person can hardly expect to later restore his/her ability to earn income, and therefore he/she is likely to need security for income. However, under an insurance-type pension system, such person is basically ineligible to receive benefits. Disability basic pension, etc. for persons recognized as being disabled before reaching the age of 20 is a non-contributory pension scheme established for the purpose of supplementing contributory pension scheme under the national pension system, so as to ensure that such person can also enjoy benefits guaranteed under the national pension system to a certain extent.
2. Considering that feasibility of a non-contributory pension scheme largely depends on the financial base of the national pension program and the State's fiscal situation, we should conclude that the legislature has broader discretion to choose whether or not to grant non-contributory pension as a supplementary pension under the national pension system which is in principle operated as an insurance-type pension system, as well as how to define the scope of eligible recipients and to establish the requirements for receiving payment of pension, compared to its discretion concerning the contributory pension system. Furthermore, persons recognized as being disabled before reaching the age of 20 were, before they have gone into the disabled state due to diseases or injuries and their ability to earn income and pay contributions have been completely lost or significantly reduced, aged under 20 and therefore ineligible to become insured persons for national pension through compulsory or voluntary participation, whereas persons who were students aged 20 or over as of the date of first medical examination were, before they have gone into the disabled state due to diseases or injuries, given the opportunity to become insured persons for national pension through voluntary participation. Also taking into consideration the fact explained above that various measures have been taken under the Basic Act for Persons with Disabilities, the Public Assistance Act, and other relevant laws, we should conclude that it falls within the bounds of the legislature's discretion to choose whether or not to take, under the Act prior to the revision in 1989, the measures as alleged by the appeal counsels such as stipulating by law that non-contributory pension shall be paid to persons who have gone into a disabled state due to diseases or injuries but are ineligible to receive disability basic pension, etc. because they were students aged 20 or over as of the date of first medical examination and had not voluntarily participated in the national pension system by that date. We cannot find the legislature's failure to take such measures to be significantly unreasonable. In addition, although a disparity existed in terms of receipt of non-contributory pension between students aged 20 or over and persons recognized as being disabled before reaching the age of 20, such difference in treatment of them cannot be deemed to be unfair discriminatory treatment applied without reasonable cause. Consequently, we cannot find that the legislature's omission is unconstitutional under Article 25 and Article 14, para.1 of the Constitution.
This is evident from the gist of the aforementioned judgments of the Grand Bench of the Supreme Court. The determination of the court of second instance that goes along with this reasoning can be affirmed as justifiable. The appeal counsels' argument cannot be accepted.

III. Concerning other reasons for final appeal
Other reasons for final appeal which also allege unconstitutionality are in effect assertions of unconstitutionality of matters that do not affect the conclusion of the judgment of prior instance or nothing more than assertions of violation of laws or regulations, and none of them can be regarded as a reason for final appeal permissible under Article 312, para.1 and para.2 of the Code of Civil Procedure.

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

Justice TSUNO Osamu
Justice IMAI Isao
Justice NAKAGAWA Ryoji
Justice FURUTA Yuki