2012.02.16

2011(Gyo-Tsu)122

Minshu Vol.66, No.2

Judgment concerning a case wherein the court ruled that Article 89 and the second sentence of Article 20, paragraph (1) of the Constitution would not been violated by the city's act of leasing, with the aim of rectifying the unconstitutionality of its act of offering city-owned land to a joint neighborhood association for use as the site of Shinto shrine facilities without compensation, a part of said land to the general representative of a ujiko group (a group of Shinto shrine parishioners) at a reasonable rent, at the timing of the group' partial relocation, removal, etc., of said shrine facilities

Case to seek declaration of the illegality of the neglect of property management

Judgment of the First Petty Bench of the Supreme Court, dismissed Court of the Second Instance in the Second Trial: Sapporo High Court, Judgment of December 6, 2010

Where the city' act of offering city-owned land to a joint neighborhood association for use as the site of Shinto shrine facilities without compensation violates Article 89 and the second sentience of Article 20, paragraph (1) of the Constitution, said provisions would not been violated by the city's act of leasing, instead of demanding the removal of said Shinto shrine facilities and the evacuation from said city-owned land, a part of said land to the general representative of a ujiko group at a reasonable rent at the timing of the group's partial relocation, removal, etc., of said shrine facilities since the renting is a rational and realistic means to rectify the aforementioned unconstitutionality under the circumstances described in the court holdings (1) to (3) as follows even if the ujiko group maintains a part of said Shinto shrine facilities on the leased land and continues performing ceremonies, etc., several times a year: (1) A. The lease described above would significantly reduce the size of the city-owned land that will be used by the ujiko group. Furthermore, if the section to be leased is clearly indicated to the public eye, it would have the practical effect of preventing the group from using a larger section of the land. As a result of partial removal and relocation of the Shinto shrine facilities, the objects and signs related to the Shinto shrine facilities would be removed from the city-owned land except for the leased section. B. After the removal, relocation, etc., specified in A above, when holding Shinto shrine festivals, etc., in the leased section of the land, which faces a national route, the ujiko group would not need to use the other part of the city-owned land. C. The predecessor facilities of the Shinto shrine facilities had existed on the land since before the land became owned by the city. The land became publicly-owned in order to show gratitude to the person who provided the land for extension of elementary school premises. (2) The prompt removal of the entire Shinto shrine facilities would make it extremely difficult for the ujiko group to continue performing ceremonies that they have been peacefully performing at the facilities. The lease of the land would allow them to continue its custom of ceremonies, etc., on the leased section of the land. (3) The lease can be made without a resolution of the city assembly. The policy of leasing land was devised after listening to the opinions and obtaining consent from both the ujiko group and the joint neighborhood association. Since the rate of the rent is 30,000 yen per year, the rent payment will not become delinquent.

Article 20, paragraph (1) and Article 89 of the Constitution Article 20, paragraph (1) of the Constitution　 Freedom of religion is guaranteed to all. No religious organization shall receive any privileges from the State, nor exercise any political authority. 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.

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

I. Outline of this case 1. In this case, the appellees of final appeal, who are inhabitants of Sunagawa City, Hokkaido (hereinafter referred to as the "City"), allege that it is in violation of the constitutional principle of separation of state and religion for the City to offer the lands in its ownership for the use as the site of Shinto shrine facilities without compensation, and that the failure of the appellant of final appeal to cancel the contract of loan for use of the site and request the removal of said facilities and vacation of the lands constitutes an illegal omission of administration of property, and based on these allegations, they sued the appellant, 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) The City owns the lands indicated in the list of real property, Attachment 1 of the judgment in prior instance (hereinafter referred to as the "Lands"; when the lands indicated in said list are mentioned individually, they shall be referred to with the numbers assigned thereto, such as "Land 1" and the like). On Land 1, a torii [a gateway to a Shinto shrine] and a jishingu [a stone monument signifying the deity to protect the local area] are installed. As indicated in Attachments 2 and 3 of the judgment in prior instance, on the Lands stands Hall A, which is used as a local meeting hall, etc. (hereinafter referred to as the "Building"), and a hokora [a small shrine] of Shrine A (Shrine A shall hereinafter be referred to as the "Shrine") is installed in a space within the Building. Above the Building's entrance in front of a torii, which is different from the main entrance of the Building, a sign, "jinja [Shinto shrine]", had been placed. The sign has been removed as explained in (5) below (hereinafter the objects mentioned above such as the torii shall be respectively referred to as the "Torii," the "Jishingu," the "Hokora," and the "Sign of the Shrine," and these four objects shall be collectively referred to as the "Shrine Objects"). The owner of the Building and the Shrine Objects is the Joint Neighborhood Association B (hereinafter referred to as the "Neighborhood Association"). The City offers the Lands to the Neighborhood Association without compensation for the use as the site of the Building, the Torii, and the Jishingu (hereinafter the City's act of offering the Lands without compensation to be used for the Shrine Objects shall be referred to as the "Act of Offering Lands for Use"). (2) The Shrine, which is not a religious corporation under the Religious Corporation Act, is managed and operated by a group of Shinto shrine parishioners called ujiko who are people living near the shrine (hereinafter referred to as the "Ujiko Group"). Since the Ujiko Group has no rules, etc. concerning its organization and it is impossible to clearly define the scope of ujiko as its members, the Ujiko Group cannot be regarded as an association without legal capacity. However, the Ujiko Group has ten representatives called ujiko sodai and ten caretakers as its administrators, and from among them, the general representative of ujiko called the ujiko-sodaicho is elected through discussion. The Neighborhood Association is a community group organized by six neighborhood associations within District A. The Ujiko Group is subsumed in the Neighborhood Association, and the operational committee organized by the members of these neighborhood associations is in charge of management and operation of the Building. (3) In around 1948, a plan was drawn up to construct an extension of the school building of the Municipal Elementary School A (called Municipal Elementary School D of District C at that time) and newly construct a gymnasium, and a decision was made to use, as the site for new construction, the land adjacent to the site of the school, where the Shrine facilities had been located. Then, E, who was an inhabitant of District A, offered Lands 1 and 4 that he/she owned as the site for the relocation of said facilities. Around that time, said facility was relocated to said lands. In 1953, in an attempt of avoiding the burden of fixed asset tax imposed on Lands 1 and 4, E made an offer to Sunagawa Town (reorganized as a city upon implementation of the city system in July 1958; hereinafter referred to as the "Town") to donate said lands. At its assembly session held in March 1953, the Town adopted a resolution to accept the donation of said lands and to offer them to be used for the facilities, including the Hokora, without compensation, and acquired ownership for said lands through the donation from E. In 1970, the Neighborhood Association constructed the Building on the Lands with subsidies received from the City. In this connection, the torii and other facilities that had existed there were pulled down, and the Hokora and the Torii were built at the current locations. The Shrine performs festivals three times every year, namely, hatsumode [the practice of visiting a Shinto shrine to pray at the beginning of the New Year], spring festival, and autumn festival. On the occasion of spring and autumn festivals, the Shrine accepts guji [Shinto priests] dispatched from Shrine F, and banners on which are written the words meaning "Shrine A," "jishingu" and the like are hoisted at both sides of the Torii. On the occasion of an autumn festival, banners on which are written the words meaning "Dedicated to Jishingu by Ujiko" and the like are hoisted at both sides of the Jishingu when Shinto ceremonies are performed. (4) The Grand Bench of this Court handed down a judgment to remand this case to the court of prior instance (2007 (Gyo-Tsu) No.260, judgment of the Grand Bench of the Supreme Court of January 20, 2010, Minshu Vol.64, No.1, at 1). In the judgment, the court held that the current status of the Act of Offering Lands for Use violates Article 89 and the second sentence of Article 20, paragraph (1) of the Constitution and that, in order to rectify such unconstitutional condition, there may be an appropriate means other than to have the Shinto shrine facilities removed and the lands vacated, and concluded that further examination should be made as to whether or not there exists any other rational and realistic alternative means. Then, on January 22, 2010, the city official in charge of this matter had a meeting with G, the general representative of ujiko, who was serving, at that time, as the chairperson of the neighborhood association of District 1 and used to serve as the chairperson of the Neighborhood Association. The city official notified G of the city's intention to solve this problem by the method suggested in said Supreme Court judgment and asked him/her to arrange a consensus among local residents. G had discussions with the administrators of the Ujiko Group and the chairpersons of the neighborhood associations comprising the Neighborhood Association. On March 19, 2010, G informed the city official that the residents are in the process of reaching a consensus on the retention of the shine facilities, they would not be able to purchase the Lands due to the Shrine's limited financial resources and would hope to minimize the size of the land if they have to rent it, and that they would remove the word "jishingu" and newly engrave the word "Kaitaku kinenhi (a stone monument commemorating pioneers)." In response, the city official notified G that, if the Hokora is relocated to the north of the Torii to reduce the size of the land, for example, if the land size is reduced to 66 square meters, the rent could be lowered to around 46,000 yen per year. On March 26, G informed the city official that a consensus had been achieved at the administrators' meeting of the Ujiko Group about the retention of the Shrine by the method discussed at the meeting with the city on March 19. (5) Based on the results of the discussions specified in (4) above, in order to rectify the aforementioned unconstitutionality of the Act of Offering Lands for Use, the appellee adopted the policy of taking the measures specified in A through E below (hereinafter referred to as the "Measures") and presented the policy on July 9, 2010, on which the oral argument in the prior instance was held: A. The Sign of the Shrine will be removed from the Building; B. The word "jishingu" will be removed from the Jishingu and, in its place, the word "Kaitaku kinenhi (a stone monument commemorating pioneers)" will be newly engraved. The cost for the removal and re-engraving will be about 130,000 yen; C. The Hokora will be taken out of the Building and relocated to the site near the Torii. The relocation will cost about 510,000 yen; D. The part Land 1 on which the Torii is located and which faces a national route (52 square meters) will be leased to the general representative of the Ujiko Group for use as the site of the Torii and the Hokora under the Sunagawa City Regulation on the Public Property (Sunagawa City Regulation No.21 of 1992) at a reasonable rent (about 35,000 yen per year) (said part of Land 1 is indicated as the shaded part of the map, Attachment 6 of the judgment in prior instance; hereinafter referred to as the "Land for Lease"); and E. The Land for Lease will be roped off or otherwise clearly indicated to the public eye. On July 16, G notified the city official that a consensus had been achieved to carry out the relocation of the Hokora and the re-engraving of the Jishingu at the expense of the Shrine. Subsequently, G and other local residents removed the Sign of the Shrine and moved to a local resident's house all of the Shrine-related objects, etc., stored in the Building. II. Concerning the reasons for final appeal argued by the appeal counsels, ISHIDA Akiyoshi, et al. 1. Reason I for final appeal (1) The appeal counsels argue that the implementation of the Measures, as its direct effect, would make it easy for the Ujiko Group to carry out religious activities by using the Hokora and the Torii. Therefore, the implementation of the Measures would be completely the same as the Act of Offering Lands for Use in terms of effect and would not rectify the unconstitutionality. The City's act of implementing the Measures, without demanding the removal of the Shrine Objects and the evacuation from Land 1, would constitute violation of Article 89 and the second sentence of Article 20, paragraph (1) of the Constitution. (2) Based on the holdings presented in the aforementioned judgment handed down by the Grand Bench of the Supreme Court on January 20, 2010, the City adopted the policy of taking the Measures in order to correct and rectify the unconstitutionality of the Act of Offering Lands for Use mentioned in the holdings. The Land for Lease has been provided for use as the site of the Shrine for free. If the Measures are implemented, a reasonable rent will be paid to the City as compensation for the use of the Land for Lease which had been offered for use without compensation. Furthermore, the size of the city-owned land to be used as the site of the Hokora and the Torii will be greatly reduced. By taking necessary measures to clearly indicate to the public eye which part of the Land 1 is the Land for Lease, as a practical matter, the City would be able to prevent the Ujiko Group from using a larger section of land. Moreover, after taking such measures as the relocation of the Hokora, the removal of the Sign of the Shrine, and the re-engraving of the word on the Jishingu, all of the objects and signs representing the Shrine will be removed from the land except for the Land for Lease (The Sign of the Shrine as well as the Shrine-related objects, etc. stored in the Building have already been removed as described in I, 2, (5) above.). In addition, in view of the facts presented above that the Land for Lease faces a national route and that the Shrine-related objects, etc. stored in the Building have already been removed, when the Ujiko Group performs ceremonies, etc., in the Land for Lease to which the Hokora was relocated, after the implementation of the Measures, it would not be necessary to use the Building or any of the Lands other than the Land for Lease. Upon comprehensive consideration of these facts and the facts that the predecessor facilities of the Shrine Objects had long existed on Lands 1 and 4 since before said lands became owned by the town prior to the implementation of the city system and that said Lands became owned by the town just for the secular and public purpose of expressing gratitude to the person who cooperated to expand elementary school premises and not for the purpose of providing special protection or assistance to the Shrine, even if the Measures are implemented in order to enable the Ujiko Group to maintain the Torii and the Hokora in the Land for Lease, which is a part of the city-owned land, and to continue to perform ceremonies, etc., several times a year, the public would not consider that the City is providing special benefits or assistance to the Shrine or the Shinto. On the other hand, an order for prompt removal of all of the Shrine Objects would make it extremely difficult for the Ujiko Group to continue its religious activities such as ceremonies, which have been performed in a very peaceful manner, and would profoundly violate the freedom of religion of the members of the Ujiko Group. In contrast, according to the facts described above, the Ujiko Group would be able to continue its custom of ceremonies, etc., on the Land for Lease if it pays an annual rent of 35,000 yen per. Furthermore, a consensus has been achieved between the City and the Ujiko Group on the relocation of the Hokora and re-engraving of the Jishingu including a consensus on the costs. The implementation of the Measures would have only a limited effect on the religious activities of the members of the Ujiko Group. On these grounds, it is reasonable to construe that the Measures are a rational means of rectifying the aforementioned unconstitutionality of the Act of Offering Lands for Use. (3) The implementation of the Measures, which is the lease of land at a reasonable rate, would not require a resolution of the City Assembly (see Article 96, paragraph (1), item (vi), Article 237, paragraph (2) of the Local Autonomy Act). According to the aforementioned facts, in order to devise the Measures, the city official met G many times, who was the general representative of ujiko and used to serve as the chairperson of the Neighborhood Association. The city official also discussed, via G, with the administrators of the Ujiko Group and the chairpersons of the Neighborhood Association and obtained their opinions. Having obtained a consensus from the administrators of the Ujiko Group, the city official devised the Measures. In view of the facts that the Sign of the Shrine has been removed, that a consensus has been obtained for the relocation of the Hokora and the re-engraving of the Jishingu including a consensus on the cost, and that the rent payment of 35,000 yen per year for the Land for Lease is unlikely to become delinquent in the future, it is reasonable to consider that the Measures are quite implementable and realistic. (4) Therefore, it is reasonable to find that the Measures are rational and realistic means of rectifying the aforementioned unconstitutionality of the Act of Offering Lands for Use and that the City's act of implementing the Measures, without demanding the removal of the Shrine Objects and the evacuation from Land 1, would not constitute violation of Article 89 and the second sentence of Article 20, paragraph (1) of the Constitution. This is clear in light of the purport of the judgments of the Grand Bench of this court (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, 2007 (Gyo-Tsu) No.334, judgment of the Grand Bench of the Supreme Court of January 20, 2010, Minshu Vol.64, No.1, at 128). The appeal counsels' arguments are unacceptable. 2. Concerning other reasons for final appeal Other reasons for final appeal, which allege violation of the Constitution, are in effect assertions of errors in fact finding or unappealable violation of laws and regulations or unfounded assertions, and none of these assertions can be regarded as a reason for final appeal under Article 312, paragraph (1) or paragraph (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 SHIRAKI Yu Justice MIYAKAWA Koji Justice SAKURAI Ryuko Justice KANETSUKI Seishi Justice YOKOTA Tomoyuki