1989.06.20

1982 (O) 164

Minshu Vol.43, No.6

Judgment on a case concerning whether an act in private law performed by the State constitutes an "other act of government" under Article 98, Paragraph 1 of the Constitution

Case Concerning Hyakuri Base

Judgment of the Third Petty Bench; dismissed

Tokyo High Court, judgment of July 7, 1981

1. An act in private law performed by the State does not constitute an "other act of government" under Article 98, Paragraph 1 of the Constitution.
2. Article 9 of the Constitution is not directly applicable to acts in private law.
3. The norms of State governance proclaimed by Article 9 of the Constitution do not, by themselves, form the substance of "public order" in the meaning of Article 90 of the Civil Code, nor do they have the legal effect of categorically invalidating privatelaw acts that are contrary thereto. Instead, those norms form one part of the substance of "public order," and are not absolute but relative to private-law norms established under the value order of private law, such as the principles of private self-governance, good faith in contracts, and the security of transactions.

Article 9 and Article 98, Paragraph 1 of the Constitution; Article 90 of the Civil Code

Jokoku appeals were filed by the Appellants seeking reversal of the judgments handed down by the Tokyo High Court on July 7, 1981, on a petition for confirmation of property title and for deregistration of acquisition of title, on a countersuit thereto, on a petition for confirmation of property title and for registration of cancellation of a provisional registration of conditional transfer of title, and on a countersuit thereto and a third-party intervention case therein, Cases (Ne) No. 817 of 1977 and (Ne) 409 of 1979 of the Tokyo High Court. The Jokoku Appellees sought dismissal of the Jokoku appeal.

The Jokoku appeals are dismissed.
Appellants in each case shall bear the costs of the Jokoku appeal.

Concerning Point 1 of the Grounds for Jokoku Appeal:

The judgment of the Court of Appeals concerning the Appellants' contention can be affirmed as correct in light of the evidence cited by the Court. The Court made no unlawful error in reaching its decision. This Court does not accept Jokoku Appellants' arguments that either criticize the Court of Appeal's selection of evidence and fact-finding, which are within its discretionary powers, or declare the original judgment unlawful on the basis of Appellants' own opinions while citing facts not recognized by the Court of Appeals.

Concerning Point 2 (a) of the Grounds for Jokoku Appeal:

I. Outline of Facts:
The legally relevant facts found by the Court of Appeals are as follows:

1. Jokoku Appellee the State deemed it necessary to build a base for the Air Self-Defense Force in the Kanto district, and planned to build such a base on D, C Town, Higashi Ibaraki County, Ibaraki Prefecture. This had been the site of a training ground of the former Imperial Navy Air Corps and had become settled by returning colonists after World War II. In May 1956, the State began preparations to acquire the proposed site with the cooperation of, among others, B, then mayor of C Town. However, a protest movement against the base project arose among local residents. Farmers and other residents of the town organized an opposition group, and a campaign was conducted to recall the mayor. In April 1957, Jokoku Appellee X1, a leader of the opposition movement, was elected mayor. Jokoku Appellee the State sent officials in charge of construction from the Defense Agency in Tokyo to negotiate with local landowners, and it concluded a number of purchase agreements in rapid succession. By March 1958, it had purchased most of the land necessary for the base.
Because of their location, the properties listed in Items 1 through 4 of the Third Schedule appended to the judgment of the Court of Appeals (hereinafter "Property 1," "Property 2," and so on when referred to separately, or "Properties" when referred to collectively) were indispensable to the construction of the air base. Their owner, Jokoku Appellee Y, was initially opposed to the base construction and was a member of the anti-base group, but he gradually grew doubtful about the opposition movement. In May 1958, intending to dispose of the Properties and move to another location, he entered negotiations for their sale with the officials in charge of construction from the Defense Agency in Tokyo.

2. In response to these developments, opponents of the base, led by Jokoku Appellant X1, decided to purchase land essential to the base construction as part of their opposition strategy. They therefore negotiated with Jokoku Appellee Y to purchase the Properties. On May 18, 1958, the negotiations were completed and a contract was concluded, which named as the purchaser Jokoku Appellant X2, a farmer employed by Jokoku Appellant X1, and stipulated payment of 3,060,000 yen upon registration of the transfer of title for Property 1 (residential land) and upon provisional registration of the transfer of title for Properties 2 through 4 (agricultural land), subject to approval as required by the Agricultural Land Law. On May 19, 1958, based on the sales contract, the parties registered the transfer of title of Property 1 based on a sales contract effective on the same date, and provisionally registered the conditional transfer of title for Properties 2 through 4 based on a sales contract (subject to cancellation) effective on the same date.
However, Jokoku Appellant X2 paid only 1,100,000 yen in total, consisting of a deposit of 100,000 yen at the time when the contract was concluded and a further 1,000,000 yen on the date of the registrations; the balance of 1,960,000 yen remained unpaid. Jokoku Appellee Y, in a registered letter delivered to Jokoku Appellant X2 on June 13, 1958, demanded that he pay the balance of 1,960,000 yen within ten days of receipt of the registered letter, and notified him of his intent to cancel the contracts in the event that payment was not received by the stated date. At about 3 P.M. on June 23, the last day of the ten-day period, attorney Toyama Yoshimasa and others representing Jokoku Appellant X2 called on Jokoku Appellee Y, offered him a check in the amount of the outstanding 1,960,000 yen, and persistently urged him to accept it as the balance of the payment. Jokoku Appellee Y reluctantly accepted the check in payment of the outstanding amount, but on June 24 it was not honored for reason of insufficient funds.

3. Consequently, on June 24, 1958, Jokoku Appellee Y resumed negotiations with A, the Defense Agency official who, as head of the Construction Department in Tokyo, was the disbursing officer. On the following day, June 25, Jokoku Appellee Y concluded a contract (hereinafter "Sales Contract") to sell the Properties to Jokoku Appellee the State for the sum of 2,700,000 yen (including compensation for giving up farming). Based on the Sales Contract, transfer of title to Jokoku Appellee the State was registered for Properties 2 and 3 on July 1, 1958, and for Property 4 on December 26, 1958. On June 26, 1958, Jokoku Appellee Y obtained a provisional injunction against Jokoku Appellant X2 as debtor, prohibiting disposition of Property 1 on the grounds that the sales contract had been cancelled, and he had the injunction registered on the same date (hereinafter, the Sales Contract and the preceding notification by Jokoku Appellee Y of his intent to cancel the sales contract with Jokoku Appellant X2 may from time to time be jointly referred to as "Acts for Acquisition of the Properties").

4. Jokoku Appellant X1 was from the beginning a real, not nominal, purchaser of the Properties, and he was therefore fully aware that, before concluding the Sales Contract with Jokoku Appellee the State, Jokoku Appellee Y had cancelled the sales contract with Jokoku Appellant X2, and that the present litigation involved the validity of that cancellation and of the Sales Contract. Being fully aware of these circumstances, on January 6, 1979, while the case was pending in the Court of Appeals, he concluded a contract for the purchase of the Properties from Jokoku Appellant X2, and, based on that contract, on February 5, 1979, he registered a transfer of title on Property 1 and also had transfer of rights on Properties 2 through 4 provisionally registered.

II. Jokoku Appellants contend that "other act[s] of government" in Article 98, Paragraph 1 of the Constitution means all acts performed by the State, including acts in private law, and that, consequently, since the Sales Contract concluded by Jokoku Appellee the State constitutes an act of government, it has no legal force or validity as it is an act of government that violates the provisions of Article 9 of the Constitution (including the Preamble; the same applies hereinafter).
However, Article 98, Paragraph 1 of the Constitution provides that the Constitution is the supreme law of the nation, in other words, that the Constitution has the strongest formal validity of any codified form of national law, and that any other legal form or part thereof which violates the Constitution, to the extent that it does so, lacks intrinsic force as a legal standard. Accordingly, "other act[s] of government" under Article 98 means acts of the State having the same character as the items enumerated in that Article: laws, ordinances, or imperial rescripts; in other words, they are acts of the State in the exercise of public power and which establish legal standards. Such acts of the State as administrative dispositions and judicial decisions, which are a concrete and specific exercise of public power and which establish legal standards, therefore constitute acts of government to the extent that they create legal standards. But those acts which the State performs at the same level as a private person should not be construed as "other act[s] of government" under Article 98, Paragraph 1 of the Constitution, because they do not create such legal norms. This interpretation is clearly correct in light of Supreme Court Case (Re) No. 188 of 1947; judgment of the Grand Bench of July 7, 1948 (Keishu Vol. 2, No. 8, p. 801).
According to the legally relevant facts found by the Court of Appeals, although the Sales Contract is an act of the State, it is clearly an act performed under private law, on the same footing as a private person, and does not create legal norms as described above; therefore, it does not constitute an "other act of government" under Article 98, Paragraph 1 of the Constitution. The judgment of the Court of Appeals, which reached the same conclusion, is affirmed. The judgment is not unconstitutional. Moreover, this Court does not accept Jokoku Appellants' argument that criticizes the judgment on the basis of opinions at variance with the above or facts not recognized by the Court of Appeals.

Concerning (i) and (ii) of Point 2 (b) of the Grounds for Jokoku Appeal:

Jokoku Appellants contend that the Sales Contract is invalid for lack of governing law or regulations, because the Defense Agency Establishment Law and related laws and ordinances on which Jokoku Appellant the State relied in concluding the Sales Contract violate the Constitution and are therefore invalid.
However, the Sales Contract between Jokoku Appellees the State and Y is a contract in private law concluded by the State to meet a specific demand that arose in the course of its functions. Thus, for the contract to be effective under private law, even though one of the parties is the State, clearly no other governing law or regulation is required besides the general conditions for a contract to be effective under private law. Therefore, it is not necessary to review the constitutionality of the Defense Agency Establishment Law and related laws and ordinances in order to judge the effect of the Sales Contract in private law. The judgment of the Court of Appeals, which reached the same conclusion, is affirmed. This Court does not accept Jokoku Appellants' argument that criticizes the judgment on the basis of opinions at variance with the above or facts not recognized by the Court of Appeals.

Concerning (iii) of Point 2 (b) of the Grounds for Jokoku Appeal:

Jokoku Appellants contend that A, who concluded the Sales Contract as the agent of Jokoku Appellee the State, lacked the power to act as a disbursing officer of Jokoku Appellee the State because the organizational norms under which he acted, namely, the Defense Agency Establishment Law and related laws and ordinances, violate Article 9 of the Constitution and are therefore invalid. They contend that the Sales Contract is thus invalid in private law because a person without authority concluded it.
However, when an actual party to a sales contract recognizes the authority of the person who acted as its agent in concluding that contract, a third party may not contest the contract's validity on the grounds that it is the act of an unauthorized person. In the present case, since Jokoku Appellee the State maintains that the Sales Contract concluded by A as its agent took effect between itself as the principal and Jokoku Appellee Y as the other party, the Jokoku Appellants, as third parties, cannot challenge the validity of the Sales Contract on the above grounds. There is thus no need to determine whether A possessed the necessary authority when he concluded the Sales Contract. The judgment of the Court of Appeals, which reached the same conclusion as this Court, is convincing. Moreover, this Court does not accept Jokoku Appellants' arguments that either criticize the judgment of the Court of Appeals on the basis of opinions at variance with the above, or challenge the legality of a portion of that judgment which does not affect the validity of its conclusion.

Concerning Point 3 of the Grounds for Jokoku Appeal:

Jokoku Appellants contend that because the Sales Contract is an act to which the State was a party, it should not be viewed as an act in private law between private persons, but that, even if it were so viewed, it would violate the pacifism and the right to a peaceful existence that are guaranteed by the Constitution, and further that it would be directly subject to, and in violation of, Article 9 of the Constitution.
However, the peace to which the Jokoku Appellants assert their right in terms of pacifism and the right to live peacefully is an abstract concept that exists as an ideal or goal, and cannot by itself serve as a criterion to judge the validity of a private-law act in a concrete litigation. Article 9, due to its nature as a constitutional norm, is not a provision designed to directly regulate the effect of acts under private law. Therefore, like the human rights provisions, it is properly understood as not directly applicable toprivate-law acts. Even if the acts in question are performed by the State as a party, only private law, whose purpose is to fairly balance the interests of private persons, is applicable to private-law contracts that the State concludes individually with private persons on an equal footing with those persons and not as the governing entity (for example, contracts to procure goods necessary for government functions, or to acquire land for public facilities, or to sell national properties), provided that there are no special circumstances whereby the process and contents of such contract are substantially equivalent to an exercise of public power. Such an interpretation is clearly correct in light of Supreme Court Case (O) No. 32 of 1968; judgment of the Grand Bench of December 12, 1973 (Minshu Vol. 27, No. 11, p. 1536).
We will now examine the above principles in relation to the case at bench. The first of the Acts for Acquisition of the Properties, the notice of intent to cancel the contract that Jokoku Appellee Y served to Jokoku Appellant X2, is a purely private-law act between private persons in which Jokoku Appellee the State had no part. Moreover, Jokoku Appellee Y issued this notice because Jokoku Appellant X2 had failed to pay the remainder of the sale price, and he concluded the Sales Contract with Jokoku Appellee the State only after the cancellation had taken effect. Thus, Jokoku Appellee Y's notice of intent to void the contract had no direct relationship with Jokoku Appellee the State's objective in concluding the Sales Contract, namely, the construction of a Self-Defense Force base. Accordingly, there is no room to apply Article 9 directly to the notice of intent.
Next, we will examine whether Article 9 of the Constitution is directly applicable to the Sales Contract concluded between Jokoku Appellee Y and Jokoku Appellee the State. According to the aforesaid legally relevant facts found by the Court of Appeals, the Sales Contract took the form of a contract under private law; in its substance, also, it was one of a series of sales contracts which Jokoku Appellee the State concluded upon negotiations with the owners of land in the area of the proposed base, taking into account their individual circumstances and acting on an equal footing with purely private persons without any exercise of public power. As stated above, there were no special circumstances. Thus, the Sales Contract is purely a property transaction effected according to the principles of private self-governance, and there is no room to apply Article 9 of the Constitution directly thereto. The judgment of the Court of Appeals, which reached the same conclusion, is affirmed. The judgment is not unconstitutional. Moreover, this Court does not accept Jokoku Appellants' argument that criticizes the judgment on the basis of opinions at variance with the above or facts not recognized by the Court of Appeals.

Concerning Point 4 of the Grounds for Jokoku Appeal:

Jokoku Appellants contend that even if the provisions of Article 9 of the Constitution and the guarantee of the right to a peaceful existence are not directly applicable to the Sales Contract because it is a private-law act, those provisions and that guarantee form the substance of the "public order" stipulated in Article 90 of the Civil Code. Because the Acts for Acquisition of the Properties, including the Sales Contract, violate those provisions and that guarantee, they are invalid as being contrary to the public order and good morals.
As stated above, the Sales Contract is a contract concluded by Jokoku Appellee the State with the objective or motive of building a Self-Defense Force base, and Jokoku Appellee the State clearly expressed that objective or motive when it concluded the contract with Jokoku Appellee Y. Accordingly, that objective or motive should be taken into consideration in deciding whether the Sales Contract and related acts violate public order and good morals. Therefore, we rule as follows on whether the Sales Contract and related acts are invalid as contrary to public order and good morals since their objective or motive was to construct a Self-Defense Force base.
First, because Article 9 of the Constitution, like the human rights provisions, proclaims the fundamental legal order of the nation, it serves as a guiding principle for interpreting and applying all laws which, by their form, are subordinate to the Constitution. However, as stated above, Article 9 is not designed to directly regulate the effect of acts under private law; therefore, the question of whether the Sales Contract is void as contrary to public order and good morals cannot be settled by judging whether the objective or motive of building a Self-Defense Force base is directly compatible with the intent of Article 9. The question of whether the Sales Contract, which was concluded with the objective or motive of building a Self-Defense Force base, is invalid as contrary to public order and good morals can only be decided on the basis of a judgment as to whether the Sales Contract viewed as a whole is so antisocial that it should be invalidated under the value order of private law.
In other words, norms of State governance such as the principle of international peace, renunciation of war, and non-maintenance of war potential that are proclaimed by Article 9 have a highly public character unrelated to the value order of private law. Under the value order of private law, they therefore do not, by themselves, form the substance of "public order" as provided for in Article 90 of the Civil Code, nor do they have the legal effect of categorically invalidating private law acts that are contrary thereto. Instead, those norms form one part of the substance of "public order" under Article 90 of the Civil Code, and are not absolute but relative to privatelaw norms established under the value order of private law, such as the principles of private self-governance, good faith in contracts, and the security of transactions.
Thus, under the value order of private law, a criterion to judge the effect of a privatelaw act should be whether there exists in society an established general recognition that such act is impermissibly antisocial.
Accordingly, we will rule on whether the objective or motive of building a Self-Defense Force base is antisocial in the above sense and to the above extent. The Self-Defense Forces Law and the Defense Agency Establishment Law were enacted in June 1954 based on the interpretation that Article 9 of the Constitution in its meaning and content did not prohibit measures for selfdefense or the maintenance of organizations of armed forces for that purpose, and the Self-Defense Forces are an organization established on the basis of those laws. Hence, it cannot be said that, under the value order of private law, when the Sales Contract was concluded in 1958, there existed in society an established general recognition that a sales contract or other private law contract between the State and a private person for the purpose of maintaining the Self-Defense Forces was an impermissibly antisocial act. Thus, the Sales Contract cannot be said to be invalid in private law because it was concluded with the objective or motive of building a Self-Defense Force base. Further, since the peace to which the Jokoku Appellants assert their right in terms of pacifism and the right to live peacefully is an abstract concept that exists as an ideal or goal, it does not, by itself and separately from Article 9, form part of the substance of "public order" under Article 90 of the Civil Code. It therefore cannot serve by itself as a criterion for judging the legal effect of an act in private law.
Thus, the judgment of the Court of Appeals that the Acts for Acquisition of the Properties, including the Sales Contract, do not violate public order and good morals is affirmed. Moreover, this Court does not accept Jokoku Appellants' arguments that either criticize the judgment of the Court of Appeals on the basis of opinions at variance with the above, or challenge its lawfulness on the basis of facts not recognized by that Court.

Therefore, in accordance with Article 396, Article 384, Paragraph 1, and Articles 95, 89, and 93 of the Code of Civil Procedure, this Court unanimously finds as stated in the Decree above. The concurring opinion of Justice ITO Masami follows.

CONCURRING OPINION OF JUSTICE ITO MASAMI

While this case litigates a question of private law (namely, the validity of a contract for the sale of land), because the buyer, the State, acquired the land for the purpose of building a Self-Defense Force base, the case raises issues related to the Preamble and Article 9 of the Constitution. Although I have no objection to the judgment expressed in the Opinion of the Court, in light of the nature of the case, I would like to take this opportunity to present a supplementary opinion on several points, including the constitutional issues in question.

I. In Point 2 (a) of the Grounds for Jokoku Appeal, Appellants alleged that the Court of Appeals was in error when it ruled that the sales contract for the Properties, as an act performed in private law by the State, does not constitute an "other act of government" under Article 98, Paragraph 1 of the Constitution. At issue here is the interpretation of this constitutional provision.

1. The meaning of the expression "other act of government" is not entirely clear, but it can be construed as follows in light of the context of Article 98, Paragraph 1 and the fact that that Article is situated in the chapter entitled "Supreme Law." As stated in the Opinion of the Court, Article 98, Paragraph 1 can be construed as expressing the legal intent that, in a positive statutory system, the Constitution is the supreme law of the nation, in other words, that the Constitution has the strongest formal validity of any codified form of national law. Accordingly, "other act[s] of government" under that Article means acts that, like the items "law, ordinance, imperial rescript" enumerated therein, establish legal norms which form part of the positive legal order of the nation; it does not mean all acts performed by the State. There is thus room to interpret that administrative dispositions and judicial decisions, as concrete acts of the State, are not included therein, but this Court has acknowledged that these do constitute acts of government (Supreme Court Case [Re] No. 188 of 1947; judgment of the Grand Bench of July 7, 1948; Keishu Vol. 2, No. 8, p. 801). The Court held that acts of the State such as administrative dispositions and judicial decisions possess a general significance in addition to their specificity as measures dealing with concrete matters; that is to say, through those specific measures, they create legal norms. Thus, such acts can be situated within the nation's positive legal order (albeit at the lowest level), and to this extent they can be said to constitute acts of government.
Viewed in this light, a private law act of the State, such as the Sales Contract, does not create a legal norm in the above sense and does not constitute an "other act of government" under Article 98, Paragraph 1 of the Constitution. Thus, the judgment of the Court of Appeals was not in error as contended by Jokoku Appellants.
In this connection, the Supreme Court, in Case (Gyo-Tsu) No. 75 of 1974; judgment of the Grand Bench of April 14, 1976 (Minshu Vol. 30, No. 3, p. 223), calls the acts of government referred to in Article 98 "acts of State power." The meaning of this phrase is not entirely clear, but at least it is clear that the Court understood "acts of government" not to include acts of the State under private law.

2. If, as stated above, Article 98, Paragraph 1 defines the nature of the Constitution as the supreme law in terms of acts that create legal norms, then the statement therein that "no law [or other item that contravenes the Constitution] shall have legal force or validity" means that those laws or other items lack intrinsic force as legal standards to the extent that they are unconstitutional. For example, an administrative disposition that violates the Constitution does not automatically become absolutely invalid. It becomes invalid when it contains a grave and obvious error, and although unconstitutionality is a grave error, it is not always an obvious one; not infrequently, whether or not a measure is held to be unconstitutional depends on interpretation of the Constitution. Even if a particular administrative disposition is unconstitutional, it may automatically follow that it is invalid, but in other cases the disposition may be revoked at the insistence of a party, while in still others it may be partially invalid. The same is true of judicial decisions. Indeed, automatic invalidation is even rarer in the case of a judicial decision, which loses effect only through a legal procedure. The statement in the Opinion of the Court that [a law, etc. which violates the Constitution] "lacks intrinsic force as a legal standard" indicates that unconstitutionality does not immediately render that law, etc. automatically invalid. As long as acts of government are construed to include concrete acts which create legal norms, such as administrative dispositions and judicial decisions, the statement in Article 98, Paragraph 1 that [when unconstitutional] they do not have legal force or effect is properly construed as above. In this connection, it is worth noting that the judgment of the Grand Bench of April 14, 1976 referred to above, while citing Article 98, Paragraph 1, negates the view that acts of State power which violate the Constitution are always automatically invalid.

II. Thus interpreted, Article 98, Paragraph 1 of the Constitution does not apply to acts of the State under private law. This does not mean, however, that all acts which the State performs under private law are the same as acts of private persons and are not directly subject to constitutional regulation. The extent of constitutional regulation is not a question that can be settled by Article 98, Paragraph 1, but one that must be examined in light of the nature of the Constitution as a whole, in order to determine its scope and to whom it applies. From this viewpoint, it is possible to adopt the interpretation that constitutional regulation directly applies to some acts between private persons under private law (I refer to the issue of the effect of the Constitution upon a third party; in Supreme Court Case [O] No. 932 of 1968; judgment of the Grand Bench of December 12, 1973 [Minshu Vol. 27, No. 11, p. 1536], the Court took a negative position on this issue with regard to Articles 14 and 19 of the Constitution). Also, under certain conditions, acts by private persons may be deemed to be acts of the State, and the Constitution may be applied to those private law acts (cf. the "State action" principle of law). Similarly, some acts of the State in private law can be directly subject to constitutional regulation. This Court has reviewed the constitutionality of a local public body's payment of remuneration and other expenses to Shinto priests for the performance of groundbreaking ceremonies (Supreme Court Case [Gyo-Tsu] No. 69 of 1971; judgment of the Grand Bench of July 13, 1977; Minshu Vol. 31, No. 4, p. 533). Since this expenditure was presumably based on private law, [the Court's decision that the expenditure was constitutional] can be construed as being based on the above premises. Furthermore, in my opinion, in some instances even private law acts of the State cannot escape constitutional restraints on the grounds that they are private acts, at least when they are directly designed to achieve an administrative purpose (setting aside the question of how far those restraints are applicable in other cases).
However, in considering the scope of constitutional regulation, we should not overlook the fact that even when a private act has the defect of violating a constitutional provision, it is not immediately invalidated under private law. On the one hand, there is a need to negate the effect of unconstitutional acts of the State. On the other hand, the principle of private self-governance is recognized with regard to acts in private law, and care must be taken lest private rights and interests created by privatelaw acts be impaired for reasons not foreseen by private persons. From the viewpoint of protecting the security of transactions, the need arises to affirm their validity under private law. Judgments on acts in private law are made while weighing these points.

III. As a rule, the various provisions of the Constitution are, by their nature, not directly applicable to private law acts, but this is not true of all constitutional norms. Some provisions directly restrain even private law acts between private persons. For example, in the case of freedom from bondage (Article 18, Paragraph 1) and basic rights of workers (Article 28), while one could view private acts which violate these provisions as being invalid because they are contrary to public order under Article 90 of the Civil Code, in a modern society, a private contract that places a person in bondage or a private act that illegally restricts a basic right, such as the right of workers to organize, may be viewed as a direct violation of the Constitution. If so, it follows that the same view is also appropriate in the case of private law acts of the State.
Then, should Article 9 be construed as directly applicable to private acts, as contended by the Jokoku Appellants in Point 3 of the Grounds for Jokoku Appeal? Article 9 renders normative the principle of pacifism, which is fundamental to the Constitution of Japan, by framing it as an article of the text. It is, of course, an extremely important provision, but it is a statement of basic national policy with regard to the nation's governance and its mechanism, and as such is not directly related to the people's rights and duties in private law. Jokoku Appellants extract a guarantee of the right to a peaceful existence from the Preamble and Article 9, and allege an infringement thereof. But the right to a peaceful existence is not clearly defined, and it is appropriate to construe that it does not directly regulate acts of the State under private law in trials as a concrete claim or a criterion for determining legality in a lawsuit.
Jokoku Appellants further contend that even if the provisions concerning human rights such as freedom and equality are only indirectly applicable to private acts, Article 9 is directly applicable in light of its legal intent and status. In my opinion, such a view should not be adopted. If provisions on individual rights and freedoms, such as the guarantees of basic human rights in Chapter III of the Constitution, are only indirectly applicable as stated in this Court's decision of December 12, 1973 cited above, then there is no reason why Article 9, which concerns governance, should directly apply as a norm regulating judicial decisions to private law acts between the State and the people.

IV. In Point 4 of the Grounds for Jokoku Appeal, Jokoku Appellants contend that even if Article 9 does not directly apply to the sales contract for the Properties, its provisions form the substance of "public order" under Article 90 of the Civil Code, and therefore the Sales Contract is invalid in private law as contrary to public order, because its motive and objective violate Article 9. I have nothing in particular to add to the Opinion of the Court, but I would like to set down some personal observations.

1. Since the Constitution establishes the fundamental order of the nation, naturally it can be said to form part of "public order" under Article 90 of the Civil Code. This Court has ruled that a five-year disparity in the mandatory retirement ages of men and women in a private company is contrary to public order (Supreme Court Case [O] No. 750 of 1979; judgment of the Third Petty Bench of March 24, 1981; Minshu Vol. 35, No. 2, p. 300), and the fact that the Court cited Article 14, Paragraph 1 of the Constitution in that decision seems to suggest that what the Constitution regulates forms public order in the meaning of the Civil Code. Although Article 9 is a norm of a strongly political complexion that is directed at governance and its machinery, it cannot therefore be said to have nothing to do with public order. Rather, it forms [part of] the public order of society because it is important to the constitutional order.
However, as stated in the opinion of the majority, constitutional norms that are not directly related to the value order of private law are not, by themselves, transferable to the order of private law so as to render contravening private law acts immediately invalid. As I argued above with regard to its scope, constitutional regulation is not absolute but relative, existing in correlation with the value order of private law, and effect in private law under Article 90 of the Civil Code must be judged on the basis of this relativity. This is especially true of a norm like Article 9, which has a strongly public character and is closely connected to the activities and machinery of governance.

2. From the above standpoint, can it be said that the sales contract for the Properties is so antisocial that its validity in private law is negated as contrary to public order under Article 90 of the Civil Code? The expressed objective and motive of the Sales Contract was construction of a Self-Defense Force base. However, the question of whether this is antisocial under the value order of private law should not necessarily be settled by determining which of the many conflicting interpretations of Article 9 is correct. Rather, the question of whether the act is so antisocial as to nullify its validity under the private law value order should be judged in light of its societal acceptability or lack thereof. This can be ascertained by observing actual conditions such as the climate of social opinion (that is, the ways in which people in all walks of life interpret Article 9), the fact of the existence of the Self-Defense Forces, and the attitude of society in general to their activities. Of course, this is not to say that the Court's judgments should simply depend on and replicate actual social conditions, given that the Constitution forms the fundamental structure of the nation. Nevertheless, even when due consideration is given to constitutional regulation, the reasoning of the Court is correct in holding that the Sales Contract does not violate Article 90 of the Civil Code.

Third Petty Bench of the Supreme Court

Justice ITO Masami
Justice YASUOKA Mitsuhiko
Justice SAKAUE Toshio