2010.01.20

2007(Gyo-Tsu)334

Minshu Vol. 64, No. 1

Judgment concerning the case wherein the court ruled that it is not in violation of Article 20, paragraph (3) and Article 89 of the Constitution, for the city to have granted to a neighborhood association the city-owned lands that the city had appropriated for the neighborhood association without compensation for the use as the site of a Shinto shrine facility

Case to seek a declaration of the illegality of the omission of administration of property

Judgment of the Grand Bench, dismissed

Sapporo High Court, Judgment of August 30, 2007

Given the factual circumstances mentioned in (1) to (3) below, it is not in violation of Article 20, paragraph (3) and Article 89 of the Constitution for the city to have granted to a neighborhood association the city-owned lands that the city had appropriated for the neighborhood association without compensation for the use as the site of a Shinto shrine facility: (1) the Shinto shrine facility is apparently categorized as a shrine facility of Shintoism and religious events are held there in accordance with the formality of Shintoism, and if the city continued the act of offering the city-owned lands as described above without taking any measures, such attitude of the city might have been evaluated from the public's point of view to show that the city offered a special benefit to a specific religion and assisted it; (2) the city effected said grant of lands in consideration of the opinion given by the audit commissioner(s), in order to correct and rectify the condition described in (1) which might be in conflict with the purport of the Constitution; and (3) said city-owned lands had originally been donated before the war from the organization that was the predecessor of said neighborhood association as the site of the apartment building for elementary school teachers, and then their usage was discontinued when the teachers' apartment building was pulled down after the war.

Article 20, paragraph (3) and Article 89 of the Constitution, Article 238-5, paragraph (1) of the Local Autonomy Act, Article 3 of the Ordinance on Exchange, Grant, and Lease Without Compensation, etc. of Property (Sunagawa City Ordinance No. 20 of 1992) Article 20, paragraph (3) of the Constitution The State and its organs shall refrain from religious education or any other religious activity. Article 89 of the Constitution No public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution or association, or for any charitable, educational or benevolent enterprises not under the control of public authority. Article 238-5, paragraph (1) of the Local Autonomy Act Ordinary property may be leased, exchanged, sold, granted, or made the subject of contribution, or a private right may be established thereon. Article 3 of the Ordinance on Exchange, Grant, and Lease Without Compensation, etc. of Property (Sunagawa City Ordinance No. 20 of 1992) Ordinary property which falls under any of the following items may be granted or transferred at a price lower than the market price: (i) in cases where ordinary property is to be transferred to another local public entity or any other public entity to be appropriated for government use or public use or for the use in public welfare undertaking by such other local public entity or any other public entity; (ii) in cases of discontinuing the usage of property appropriated for government use or public use, for which another local public entity or any other public entity has borne expenses for maintenance and preservation, where ordinary property arising from the discontinuation of said usage is to be transferred to said local public entity or any other public entity to the extent of the amount of expenses borne thereby; (iii) in cases of discontinuing the usage of public property appropriated for government use or public use which has been donated, where ordinary property arising from the discontinuation of said usage is to be transferred to the donor or his/her heir or any other general successor; or (iv) in cases of discontinuing the usage of public property appropriated for government use or public use by reason of acceptance of donation of other property as substitute, where ordinary property arising from the discontinuation of said usage is to be transferred to the donor or his/her heir or any other general successor to the extent of the amount equivalent to the value of the donated property.

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

I. Outline of the case 1. In this case, the appellant of final appeal, who is an inhabitant of Sunagawa City (hereinafter referred to as the "City"), alleges that it is in violation of the constitutional principle of separation of state and religion and therefore void, for the City to have granted the city-owned lands that are used as the site of a Shinto shrine to the Sunagawa City T Town Neighborhood Association (hereinafter referred to as the "Neighborhood Association") without compensation, and that the failure of the appellee of final appeal to request the performance of the procedure for registration of cancellation of the registration of transfer of ownership of said lands constitutes an illegal omission of administration of property, and based on these allegations, the appellant sued the appellee, seeking a declaration of the illegality of such omission under Article 242-2, paragraph (1), item (iii) of the Local Autonomy Act. 2. The outline of the facts legally determined by the court of prior instance is as follows. (1) Descriptions of the granted city-owned lands and the Shinto shrine facility The City owned the lands indicated in the list of items attached to the judgment in first instance (hereinafter referred to as the "Lands"). On April 15, 2005, the city granted the Lands to the Neighborhood Association, which is located in T District of the city and has been given authorization under Article 260-2, paragraph (1) of the Local Autonomy Act (hereinafter referred to as "authorization of a locality-based association"), and performed the procedure for registration of transfer of ownership by reason of the gift made as of said date (this grant of the Lands shall hereinafter referred to as the "Grant"). The Lands are used as the site of T Shrine (hereinafter referred to as the "Shrine"). On these lands, as indicated in the drawing attached to the judgment in first instance, a torii [a gateway to a Shinto shrine] (approx. 4.5 meters in width), a pair of stone lanterns, and a shrine building (floor area: 25.92 square meters; a one-story wooden building with galvanized sheet iron roofing and Nankin-shitamiitabari weatherboarding [the exterior wall consisting of long thin boards that overlap one another] are arranged in a straight line. Between the pair of stone lanterns and the shrine building, there is a stone-built jishingu [a monument signifying the deity to protect the local area] on which the word "jishingu" is engraved, and in front of the shrine building, there is a washstand called a seishin [used by visitors to wash their hands to purify themselves]. On the upper part of the exterior wall of the front entrance of the shrine building, a framed plate on which are engraved the characters meaning "T Shrine" is posted, and in the recesses of the building opposite to its front, a hokora [a small shrine] in which is enshrined Okuninushi-no-mikoto [the great lord of the land, a Shinto deity] is installed (hereinafter the shrine building in which the hokora is installed, and the torii, the pair of stone lanterns, the jishingu, and the washstand shall be collectively referred to as the "Shrine Facility"). (2) The status of management, etc. of the Shrine at the time of the Grant (a) The Neighborhood Association is a neighborhood organization engaged in carrying out local activities whose purpose is to contribute to the maintenance and creation of a good local community. It is not an organization whose purpose is to carry out religious activities, and it exists as an entity separate from the Shrine. The Neighborhood Association has no special relationship with the Shrine in organizational aspects including the officer structure, and the qualifications for its members or officers do not include, for example, affiliation with a specific religious organization centering on the Shrine. Its account is managed separately from that of the Shrine. (b) The Shrine has no juridical personality, no rules providing for organizational matters, activities, etc., and no resident Shinto priest. However, a representative parishioner called sodai and a treasurer who are appointed by common consent among inhabitants handle affairs for maintenance and operation of the Shrine, such as collecting 1,500 yen per year per household from inhabitants who belong to the Neighborhood Association as maintenance and operational expenses for the Shrine, and preparing for the Reitaisai [regularly-held festivals]. There are more than 30 households in T District, and in FY2001 through to FY2003, the majority of these households paid maintenance and operational expenses. Expenses for holding the Reitaisai and other events are financed by inhabitants' contributions and visitors' money offerings. (c) Every year, the Shrine holds hatsumode [the practice of visiting a Shinto shrine to pray at the beginning of the New Year] as well as a spring Reitaisai festival and autumn Reitaisai festival. On the occasion of hatsumode, inhabitants in T District visit the Shrine, and on the occasion of the spring Reitaisai festival and autumn Reitaisai festival, the guji [chief priest of a shrine] of X Shrine recites a Shinto prayer and performs other Shinto rites within the shrine building of the Shrine, and about 10 inhabitants visit the Shrine annually. During the period of the Reitaisai festival, banners on which are written the words meaning "Dedicated to T Shrine by Ujiko [parishioners or believers]" and the like are hoisted by both sides of the torii. Under the eaves of the front entrance of the shrine building, bells are hung with a ribbon on which is written the words meaning "Dedicated by Sodai of T Shrine" and the like, and a box for money offerings is placed near the entrance. On the occasion of the festival of X Shrine held in August every year, the mikoshi [a portable shrine] of X Shrine is brought to the Shrine, and the guji and miko [shrine maidens] perform Shinto rites there. (3) History of the Shrine and the circumstances leading to the Grant (a) The Lands had been used by local inhabitants as lands substantially under the ownership of the Association of T Hamlets that had originally existed in T District (the predecessor of the Neighborhood Association), but in terms of formality, they were registered under the names of individual local inhabitants. In 1894, inhabitants in T District erected a small hokora on the Lands for Okuninushi-no-mikoto as the enshrined deity, praying for good harvest (at that time, this small hokora was called B Shrine). Subsequently, during the period from 1918 to 1968, the components of the Shrine Facility were installed on the Lands one by one. This is the history of the Shrine up to the present. (b) In 1935, at the request of the Association of T Hamlets for constructing an apartment building for teachers of T Elementary School on the Lands, the City constructed the apartment building, accepting the donation of the Lands and receiving a registration of transfer of ownership therefor. (c) Since it was decided to pull down the apartment building for teachers of T Elementary School in 1975, the City, in April 1976, entrusted the Association of T Hamlets with the management of the Lands without compensation, with a limitation on the purpose of management that the Lands were to be appropriated exclusively for common purposes of the hamlets, e.g. to be used as a children's park. At that time, there existed the Japan Agricultural Cooperatives' warehouse and the youth hall on the Lands in addition to the Shrine Facility, and part of the Lands was also used as a children's park. From that time, the Lands have been managed and used by the Association of T Hamlets and then its successor, the Neighborhood Association, independently (during this period, said warehouse, etc. and park have been pulled down or otherwise have ceased to exist). (d) In September 2004, the appellant made an inhabitant's request for audit to the City's audit commissioner(s), on the grounds that it was in violation of the principle of separation of state and religion for the City to allow the Lands to be used as the site of the Shrine. The audit commissioner(s), in the audit results dated November 22, 2004, concluded that there was no violation of the principle of separation of state and religion, while attaching an opinion to the effect that since the condition where a Shrine hokora is located on city-owned lands and is used for Shinto rites would make some inhabitants have a suspicion, it would be necessary to take measures such as granting the Lands to T District inhabitants. In response to such audit results, the City, in order to rectify the condition where city-owned lands were used as the site of the Shinto shrine, consulted with the Neighborhood Association, and on April 15, 2005, based on the city assembly's resolution of grant, effected the Grant to the Neighborhood Association that had been given authorization of a locality-based association. II. Concerning the reasons for final appeal argued by the appeal counsels, ISHIDA Akiyoshi, INOUE Jiro, and NAKAJIMA Mitsunori 1. Concerning Reasons I to IV for final appeal, alleging violation of Article 20, paragraph (3) and Article 89 of the Constitution (1) According to the facts mentioned above, the Shrine Facility is, as a whole, apparently categorized as a shrine facility of Shintoism, and various events held at the Shrine, from the manner in which they are conducted in accordance with the formality of Shintoism, should inevitably be regarded as religions events. Also according to the facts mentioned above, the expenses for the Shrine are financed from the maintenance and operational expenses, etc. contributed by the majority of households located in T District, and the account thereof is managed separately from the account of the Neighborhood Association by the representative parishioner and the treasurer appointed by common consent among local inhabitants. In view of these facts, it is apparent that a group of local inhabitants who can be regarded as ujiko [parishioners or believers] has a real existence in society, even though the scope of the members of the group cannot be clearly defined, and therefore this group can be deemed to fall within the category of "religions institution or association" as set forth in Article 89 of the Constitution. Although the owner of the Shrine Facility cannot be identified, it should be said that the act of the City to have appropriated the Lands for the use as the site of the Shinto shrine prior to the Grant, as its direct effect, made it easy for said group of local inhabitants to carry out religious activities using the Shinto shrine. Consequently, although there may be unavoidable aspects in the circumstances where the Lands came under the City's ownership, if the City continued said act without taking any measures, such attitude of the City might have been evaluated from the public's point of view to show that the City offered a special benefit to a specific religion and assisted it. (2) The City effected the Grant in consideration of the opinion given by the audit commissioner(s), in order to correct and rectify the condition which might be in conflict with the purport of Article 89 and the second sentence of Article 20, paragraph (1) of the Constitution. It is true that the Grant, when focusing only on the value of the Lands as property, leads to giving profit to the Neighborhood Association unilaterally in some aspects, and as a result, it can possibly be evaluated to bring about a benefit to said group of local inhabitants as well in that it makes it possible for the group to continue to use the site of the Shinto shrine without compensation. However, the Lands had been substantially under the ownership of the Association of T Hamlets, the predecessor of the Neighborhood Association before they were donated as the site of the teachers' apartment building in 1935. Therefore, inasmuch as their usage as the site of the teachers' apartment building was discontinued in 1975, granting the lands to the Neighborhood Association is in line with the purport of Article 3 of the City's Ordinance on Exchange, Grant, and Lease Without Compensation, etc. of Property (Sunagawa City Ordinance No. 20 of 1992), which allows ordinary property that is no longer appropriated for public use to be granted to the donor's general successor. In addition, if the City attempted to have the Shrine Facility removed in order to dissolve its relationship with the Shrine, such attempt would make it extremely difficult to carry out the religious activities that have been protected and inherited by said group of local inhabitants even after the donation of the Lands, thereby causing serious prejudice to their freedom of religion. To solve the same kind of problem, the "Act on Disposition of National Property Leased to Temples, Shinto Shrines, etc. Without Compensation" (Act No. 53 of 1947) permitted property that had been made national property through donation, etc. prior to said Act came into effect, to be granted to the temple or Shinto shrine, etc. concerned by the prescribed procedures if such land was necessary for carrying out religious activities of the temple or Shinto shrine, etc. It can be construed that such treatment was adopted because it was considered as the best practice to grant such property to the temples, Shinto shrines, etc., in order to correct and rectify the connection between the state and religion while respecting the property right of temples, Shinto shrines, etc. and freedom of religion. This court takes judicial notice of the facts that a directive was issued by the Vice-Minister of Home Affairs and the Vice-Minister of Education to the effect that public land should be granted or otherwise disposed of as in the case of national land, and even after the period for applying for grant under said Act and directive expired, measures such as grant, selling off, lease, etc. were taken. The Grant was in line with the policy as described above, and cannot be deemed to be an unreasonable means to correct and rectify the connection between the City and the Shrine (it goes without saying that granting such land to a neighborhood association that has been given authorization of a locality-based association is not contrary to the purport of Article 260-2 of the Local Autonomy Act). (3) Judging comprehensively in light of the socially accepted ideas while taking into consideration the circumstances mentioned above, it is appropriate to construe that the Grant cannot be evaluated to bring about a connection between the City and the Shrine beyond the limit that is deemed to be reasonable, in light of the social and cultural conditions of our country, in relation to the fundamental purpose of the system of securing guarantee of freedom of religion, and therefore it is not in violation of Article 20, paragraph (3) and Article 89 of the Constitution (See 1971 (Gyo-Tsu) No. 69, judgment of the Grand Bench of the Supreme Court of July 13, 1977, Minshu Vol. 31, No. 4, at 533, 1992 (Gyo-Tsu) No. 156, judgment of the Grand Bench of the Supreme Court of April 2, 1997, Minshu Vol. 51, No. 4, at 1673). 2. Concerning other reasons for final appeal Other reasons for final appeal, which allege unconstitutionality and defects in the reasons attached to the judgment in prior instance, are in effect unappealable violation of laws and regulations or there is no premise to support these reasons, and therefore none of them can be regarded as a reason for final appeal permissible under Article 312, paragraph (1) and paragraph (2) of the Code of Criminal Procedure. 3. Conclusion For the reasons stated above, the determination of the court of prior instance finding the Grant not to be in violation of Article 20, paragraph (3) and Article 89 of the Constitution and dismissing the appellant's claim can be affirmed as justifiable. The appeal counsels' arguments cannot be accepted. Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices.

Justice TAKESAKI Hironobu Justice FUJITA Tokiyasu Justice KAINAKA Tatsuo Justice IMAI Isao Justice NAKAGAWA Ryoji Justice HORIGOME Yukio Justice FURUTA Yuki Justice NASU Kohei Justice TAHARA Mutsuo Justice KONDO Takaharu Justice MIYAKAWA Koji Justice SAKURAI Ryuko Justice TAKEUCHI Yukio Justice KANETSUKI Seishi