1993.02.16

1987(Gyo-Tsu)148

Minshu Vol. 47, No. 3

Judgment concerning a case in which the acts in question performed by a city, i.e. the act of purchasing substitute land for the public land where a monument for the war dead existed and relocating and rebuilding the monument, and the act of leasing the purchased substitute land as the site of the monument without compensation to the local war-bereaved families association that took charge of maintaining and managing the monument, were held to not fall within the scope of religious activities prohibited under Article 20, paragraph (3) of the Constitution

Case to seek a declaratory judgment of the nullity of a decision to abolish part of a playground, etc., with an incidental claim, and to seek an injunction against the disbursement of public money to memorial services

Judgment of the Third Petty Bench, dismissed

Osaka High Court, Judgment of July 16, 1987

1. In the case where a city purchased substitute land for the public land where a monument for the war dead existed, and relocated and rebuilt the monument, and it leased the purchased substitute land as the site of the monument without compensation to the local war-bereaved families association that took charge of maintaining and managing the monument, these acts performed by the city do not fall within the scope of religious activities prohibited under Article 20, paragraph (3) of the Constitution, given the following circumstances indicated in the judgment: the monument is in its original nature a memorial for those who died in the war, and the connection between the monument and any specific religion has been weak at least in the post-war period; the local war-bereaved families association is not an association whose primary purpose is to carry out religious activities; and the relocation and rebuilding of the monument by the city were primarily intended to use the public land where the monument existed as part of the site for a school, and thus the purpose of these acts is of secular nature in entirety. 2. D Association (an incorporated foundation) and its branch organizations do not fall within the scope of "religious organization" referred to in the second sentence of Article 20, paragraph (1) of the Constitution or the scope of "religious institution or association" referred to in Article 89 of the Constitution. 3. In the case where a city's superintendent of education attended the memorial services held by a local war-bereaved families association in front of a monument for the war dead and performed in the Shinto or Buddhist style, such attendance at the memorial services does not violate the constitutional principle of separation of religion and politics or violate Article 20 or Article 89 of the Constitution, given the following circumstances indicated in the judgment: the monument is in its original nature a memorial for those who died in the war; the local war-bereaved families association is not an association whose primary purpose is to carry out religious activities; and the purpose of the attendance at the memorial services is to show courtesy in society toward war-bereaved families and thus it is of secular nature in entirety. 4. Even when the head of an ordinary local public entity has delegated acts relating to finance and accounting under his/her authority to a particular official in advance, in the suit filed by inhabitants in the place of the ordinary local public entity in which appropriateness of any act relating to finance and accounting handled by such official is questioned, the head should be regarded as the "employee in question" referred to in Article 242-2, paragraph (1), item (iv) of the Local Autonomy Act. 5. When the head of an ordinary local public entity has delegated acts relating to finance and accounting under his/her authority to a particular official, and such official has handled any such act, the head should bear the liability to compensate the ordinary local public entity for the damage that it has sustained only if the head has breached the duty to direct and supervise said official to prevent him/her from committing an illegal act relating to finance and accounting, and has intentionally or negligently omitted to prevent said official from committing the illegal act relating to finance and accounting. (There is a concurring opinion concerning 1 and 3.)

(Concerning 1 to 3) Article 20 of the Constitution; (Concerning 2 and 3) Article 89 of the Constitution; (Concerning 4 and 5) Article 153, paragraph (1) and Article 242-2, paragraph (1), item (iv) of the Local Autonomy Act The Constitution Article 20 Freedom of religion is guaranteed to all. No religious organization shall receive any privileges from the State, nor exercise any political authority. No person shall be compelled to take part in any religious act, celebration, rite or practice. The State and its organs shall refrain from religious education or any other religious activity. Article 89 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. Local Autonomy Act Article 153 (1) The head of an ordinary local public entity may delegate part of the affairs under his/her authority to officials of the ordinary local public entity or have them carry out the affairs in his/her place temporarily. Article 242-2 (1) Any inhabitant of an ordinary local public entity who has filed a request under paragraph (1) of the preceding Article may make any of the following claims, by filing an action with the court, with regard to the illegal act or omission in relation to the request under paragraph (1) of said Article: if the inhabitant is dissatisfied with the results of the audit or the recommendation made by an audit commissioner under paragraph (3) of said Article, or with the measures taken by the assembly, the head or any other executive agency, or an employee of the ordinary local public entity under paragraph (7) of said Article; or if the audit commissioner fails to make an audit or recommendation under paragraph (3) of said Article within the period referred to in paragraph (4) of said Article, or if the assembly, the head or any other executive agency, or an employee of the ordinary local public entity fails to take measures under paragraph (7) of said Article; provided, however, that a claim referred to in item (i) may be made only when the act in question is likely to bring about irrecoverable damage to the ordinary local public entity, and a claim for refund of unjust enrichment referred to in item (iv) against an employee may be made only to the extent that the employee retains any benefit: (iv) a claim against the employee in question for damages or for refund of unjust enrichment or claim against the counterparty to the act or omission for a declaration of non-existence of legal relationships, for damages, for refund of unjust enrichment, for restoration or for elimination of disturbance, which is made in the place of the ordinary local public entity.

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

Concerning Reasons I to IV, X, and XXX for final appeal argued by the appeal counsel/counsel for the supporting intervener for the appellant of final appeal, KUMANO Katsuyuki, FUJITA Kazuyoshi, KASHIMA Hiroshi, SAKAWA Suguru, KOSAKAI Hisashi and KAWASHITA Kiyoshi I. The facts found by the court of prior instance with regard to the points argued by the counsel are acceptable in light of the evidence cited in the judgment in prior instance, and the judgment in prior instance does not involve such illegality as argued by them. The summary of the facts legally determined by the court of prior instance is as follows. 1. Circumstances leading up the relocation and rebuilding of the monument for the war dead in question (I) On April 10, 1916, G Chapter of E Association (hereinafter referred to as the "Chapter") built a monument for the war dead (called "忠魂碑 (chūkonhi)" in Japanese), by way of the labor service provided by its members, within the premises of the office building of "A" Village next to H Elementary School (hereinafter the monument for the war dead before the relocation to the site indicated in Section 2 of the list of articles attached to the judgment in prior instance is referred to as the "Former Monument" and the one after the relocation is referred to as the "Monument"). When building the Former Monument, the Chapter requested "A" Village to lease, without compensation, part of the land which was used as the premises of the village's office building at that time (49 tsubo or approx. 162 square meters out of its premises in "A" Village, Toyono District, Osaka Prefecture). In response, "A" Village decided to lease that part of land to the Chapter as the site for the Former Monument without compensation and for an indefinite time, after having this matter resolved by the village assembly, and it also permitted the Chapter to use a vacant land lot of about 100 tsubo or approx. 330 square meters surrounding the leased land when the Chapter would hold a memorial service in front of the Former Monument. Until around 1939 or 1940, the Chapter had held a memorial service every year at that place, but later it became unable to do so as the war intensified. (II) After the war, on December 15, 1945, the General Headquarters (GHQ) of the Supreme Commander for the Allied Powers issued to the Japanese government what is generally called the Shinto Directive ("Abolition of Governmental Sponsorship, Support, Perpetuation, Control, and Dissemination of State Shinto"), which led to the realization of separation of religion and politics in Japan. Following such occupation policy of the GHQ, the government issued circular notices, namely "Notice on Public Funerals" (Notice Hatsu-Shu No. 51, issued on November 1, 1946, from the Vice Education Minister of Home Affairs) and "Notice on Measures for Memorial Towers and Monuments for the War Dead" (Notice issued on November 27, 1946, from the Director-General of the Police Bureau of the Ministry of Home Affairs), and thereby announced its policy to remove monuments for the war dead, etc. standing within schools and their premises and those within public buildings and their premises or on any public land. As a result, around the end of March 1947, the main stone of the Former Monument was removed and buried under the nearby ground by the Chapter's members, while the base was left there as it was. Later, an idea to rebuild the Former Monument was brought up among the bereaved families of the war dead, etc., and around 1951, the once buried main stone was dug up, and the Former Monument was rebuilt as it had been before. The rebuilding project was carried out under the initiative of the J Bereaved Families Association, which was set up immediately after the war for purposes such as providing support, health and welfare services for war-bereaved families, and commemorating and consoling the souls of the war dead. Subsequently, the J Bereaved Families Association was renamed the K War-Bereaved Families Association around September 1952, and then the L War-Bereaved Families Association on December 1, 1956 (hereinafter referred to as the "municipal bereaved families association"), and the members of the M War-Bereaved Families Association, which was a subordinate organization of the municipal war-bereaved families association (hereinafter referred to as the "district bereaved families association"), took charge of cleaning and managing the Former Monument. Since around 1955, the district bereaved families association had organized and held memorial services in front of the monument every April, in Shinto-style by a Shinto priest or Buddhist-style by a Buddhist priest, which took turns every second year. (III) In Minoh City, the number of students at H Elementary School increased rapidly since 1965. What is more, in addition to the growing deterioration of its school buildings constructed in the early time of the Showa era and the pressing need to construct new classrooms for special subjects, it was also revealed in the investigation by the Minoh City Board of Education around 1970 that the existing school buildings were in dangerous conditions. Therefore, around 1973, it became an urgent task to construct new buildings or extensions and expand the schoolyard for H Elementary School. In order to fulfill this task, Minoh City needed to relocate the Former Monument, which was standing within the abovementioned premises of the village office building next to the site of the elementary school, and have the site of the monument vacated to integrate it into the site of the school. Although it was impossible at that time to clearly identify the owner of the Former Monument, Minoh City considered that the municipal bereaved families association had acquired the ownership of the Former Monument and the right to use the site from the Chapter, because the district bereaved families association, which was a subordinate organization of the municipal bereaved families association, managed the monument by cleaning it and holding memorial services in front of it and used its site. Minoh City chose the district bereaved families association as its counterparty and held repeated negotiations to request vacation of the site of the Former Monument, and on May 21, 1975, Minoh City and the district bereaved families association reached an agreement to relocate the Former Monument to the site in question, under conditions such as maintaining the current appearance of the monument itself and securing a large space as necessary for holding memorial services in front of it. (IV) In order to secure substitute land to relocate the Former Monument, on July 10, 1975, Minoh City purchased the land indicated in Section 1 of the list of articles attached to the judgment in prior instance (hereinafter referred to as the "Land") from N Land Development Corporation at a price of 78,826,824 yen (this transaction is hereinafter referred to as the "Purchase"), received the delivery of the Land, and on December 20, 1975, it relocated and rebuilt the Former Monument on the site in question, which forms part of the Land (hereinafter referred to as the "Relocation and Rebuilding"), and allowed the municipal bereaved families association to manage and use said site. Minoh City gave O Construction Company a contract to do construction work for the Relocation and Rebuilding and paid the company 7,042,120 yen as the contract fee. (V) After that, Appellee B1 City Mayor, received a recommendation from the audit commissioner of the city that the right holder for the Former Monument should be determined promptly and action should be taken to seek a necessary resolution from the Minoh City Assembly for leasing the site in question. Accordingly, in the capacity of an interested person under Article 75 of the Civil Code, Minoh City filed a request with the Osaka District Court to appoint a chapter liquidator. On February 25, 1976, the chapter liquidator appointed by said district court ratified the abovementioned agreement between Minoh City and the municipal bereaved families association, and as a result of the consultation with the municipal bereaved families association and Minoh City, an agreement was reached on the following matters among the three parties on March 8, 1976: (1) the Chapter shall transfer the right of lease for use of the site in question to the municipal bereaved families association, and Minoh City, as the land owner for said site, shall grant approval of the use of said site by the municipal bereaved families association without compensation on condition that the Minoh City Assembly would make a resolution to agree with this; (2) the Chapter shall give the Former Monument as a gift to the municipal bereaved families association on condition that the Minoh City Assembly would make a resolution to agree with this; and (3) the municipal bereaved families association shall promise to use the Monument for the purpose of consoling the souls of the war dead. Following this, on March 12, 1976, the Minoh City Assembly passed a resolution to lease the site in question to the municipal bereaved families association without compensation (hereinafter referred to as the "Lease") pursuant to the provisions of Article 96, paragraph (1), item (vi) of the Local Autonomy Act. (VI) The Monument consists of the footstone on the two-layered stone base and the main stone (about 1.5 meters in width, about 0.4 meters in thickness, and about 2.5 meters in height) placed on the footstone, and it rises 6.3 meters from the ground to the top of the main stone. It stands on the space surrounded by ashlar masonry, and it is surrounded by granite stone walls in front of it and on the front sections of both sides, and by hedges of orange osmanthus at its back and on the rear sections of both sides. Inside the ashlar masonry, plants such as Juniperus chinensis Kaizuka, pine trees and Rhododendron indicum were planted here and there, and the ground is graveled with white pebbles. Around 1966, P, who was then president of the municipal bereaved families association, transcribed the names of the war dead from the ledger to cedar boards and to a wooden pole inscribed with the characters "霊璽 (reibyō)" (souls of the dead), taking "Q" in Okinawa as a model, and placed these items in the base of the Monument. However, since this was not performed according to a religious procedure, and no particular measure was taken to publicize it among the bereaved families, even the members of the municipal bereaved families association did not know the existence of these items. 2. Origin of monuments for the war dead (I) Monuments inscribed with characters such as "忠魂碑 (chūkonhi)" and "招魂碑 (shōkonhi)" began to be built during the period from around the last days of the Edo period to the early years of the Meiji period for the purpose of consoling and honoring the souls of people who died for affairs of state during the last days of the Edo period. Such monuments were built in many places in Japan for those who died in the Seinan War. In particular, after the Russo-Japanese War, in which a number of Japanese people died, numerous monuments were built for consoling and honoring the souls of the war dead, and the word "忠魂碑 (chūkonhi)" became common as a name to represent these monuments. A typical form of these monuments had, on the front side, the characters "忠魂碑 (chūkonhi)" inscribed vertically and the full name of the person who originally calligraphed the characters "忠魂碑 (chūkonhi)" inscribed in small letters next to the characters "忠魂碑 (chūkonhi). "On the back side, some of these monuments had the names of the dead inscribed, but only the date of building was usually inscribed. (II) Later, the number of the war dead increased rapidly again after events such as the Manchurian Incident in 1931 and the Chino-Japanese Incident that began in 1937, and movements toward building monuments for the war dead became active mainly among local veterans associations in the hometowns of the war dead. However, partly because it was in war time, the government took a suppressive stance on the movements toward building monuments for the war dead and any other memorial monuments. Also from around 1936, memorial towers to keep the remains of the war dead were built with the support of the army, and these towers began to enshrine the souls of the war dead as public tombs. As the building of memorial towers became popular, fewer monuments for the war dead were newly built after around 1941. (III) With regard to memorial services, etc. to be held in front of monuments for the war dead, etc., in April 1898, after the First Sino-Japanese War, the Bureaus of Shrines and Temples of the Ministry of Home Affairs, which was in charge of administration of shrines, responded to the inquiry from Saitama Prefecture that no permission would be granted for using monuments for the war dead or any other monuments as objects of worship or holding ceremonies in either Shinto-style or Buddhist style, thus the bureau did not permit this kind of monuments to be built as objects of worship for holding ceremonies. However, when R Association, which was engaged as its important business in holding memorial services dedicated to consoling and honoring the souls of the war dead, and setting up and managing monuments for the war dead, built monuments for the war dead, it always held unveiling ceremonies solely or in combination with memorial services in different names. While most of the memorial services held by R Association in the name of "追悼会 (tsuitōkai)" or "慰霊祭 (ireisai)" were performed in Buddhist style, those held in the name of "除幕式 (jomakushiki)" or "招魂祭 (shōkonsai)" were performed in Shinto style, Buddhist style, Shinto-Buddhist mixed style, or Shinto and Buddhist styles taking turns every second year. Although the Shinto world did not think it to be appropriate to hold memorial services in a Shinto-Buddhist mixed style, this style was in reality adopted widely. During the 1935-1945 period, after the Manchurian Incident, in particular, along with the expansion of the battle fronts and the increase in the number of the war dead, memorial services were actively held in front of monuments for the war dead. Not only the war-bereaved families and associations of non-military people accompanying the army but also ordinary citizens and students began to participate in these memorial services and give a prayer at these monuments. In 1935, the circular notice from the Secretary of the Cabinet ordered school presidents to have their students to give a prayer at monuments for the war dead. (IV) After the war, as mentioned above, the GHQ issued what is generally called the Shinto Directive to the Japanese government, and following the GHQ's occupation policy, the government issued the abovementioned circular notices, namely "Notice on Public Funerals" and "Notice on Measures for Memorial Towers and Monuments for the War Dead," and thereby announced its policy to remove all monuments for the war dead, etc. standing within schools and their premises. However, among the monuments for the war dead and memorial towers standing within other public buildings and their premises or on any other public land, this removal policy was specially applied to only those clearly intended to propagate and stimulate militaristic or ultranationalistic ideologies, and the government decided that those only standing as monuments dedicated to the war dead needed not to be removed in principle. In April 1952, driven by the peace treaty coming into effect, the momentum toward building monuments dedicated to consoling the souls of the war dead increased mainly among the bereaved families and surviving friends of the war dead, and the monuments for the war dead and memorial towers that had been removed during the occupation period were rebuilt or restored one after another, while new ones were also built. The monuments newly built varied in shape and other features, and they were given different names, including "慰霊碑 (ireihi)," "慰霊塔 (ireitō)," "彰忠碑 (shōchūhi),"and "英霊碑 (eireihi)," in addition to "忠魂碑 (chūkonhi)." Memorial services were held in front of some of these monuments but not in front of others, and if such services were held, they were performed in various styles, such as Buddhist style, Shinto style, Shinto-Buddhist mixed style, Shinto and Buddhist styles taking turns every second year, and non-religious style. The organizers of these services also varied, e.g. bereaved families associations, municipal governments, residents' associations, etc. II. The Constitution provides that "Freedom of religion is guaranteed to all" (the first sentence of Article 20, paragraph (1)), and that "No person shall be compelled to take part in any religious act, celebration, rite or practice" (paragraph (2) of said Article), thus guaranteeing what is generally referred to as freedom of religion in the narrow sense (individuals' freedom of religion). The Constitution also provides that "No religious organization shall receive any privileges from the State, nor exercise any political authority" (the second sentence of paragraph (1) of said Article, and that "The State and its organs shall refrain from religious education or any other religious activity" (paragraph (3) of said Article), and further provides that "No public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution or association…" (Article 89), thus incorporating the relevant provisions under the principle of separation of religion and politics (hereinafter referred to as the "constitutional provisions on separation of religion and politics"). Originally, the constitutional provisions on separation of religion and politics are provisions for institutional guarantee and they do not directly guarantee freedom of religion itself. These provisions guarantee separation of the State (including local public entities; the same applies hereinafter) and religion in the form of a system, aiming to ensure the guarantee for freedom of religion indirectly. The principle of separation of religion and politics, which serves as the basis for the constitutional provisions on separation of religion and politics and functions as guidance for interpreting these provisions, requires the State to be religiously neutral but does not totally prohibit the State from having any connection with religion. It should be construed that this principle prohibits the State from having any connection with religion when, in view of the purpose and effect of the State's act that gives rise to a connection with religion, the connection between the State and religion seems to go beyond the level where the connection is considered to be appropriate in relation to the fundamental objective of the system of ensuring the guarantee for freedom of religion, in light of the social, cultural and other conditions in Japan. In light of such significance of the principle of separation of religion and politics, the term "religious activity" referred to in Article 20, paragraph (3) of the Constitution does not include all acts that are performed as activities of the State or its organs and are connected with religion, but its scope should be limited to acts in which the connection with religion goes beyond said level of appropriate connection, and this term should be interpreted as referring to acts whose purpose has a religious meaning and whose effect could result in supporting, encouraging or promoting, or suppressing or interfering with religion. When examining whether or not the purpose of the act in question constitutes a religious activity as explained above, it is necessary to determine this issue objectively according to socially accepted ideas, without focusing only on the appearance of the act, e.g. whether the organizer of the act is a religious figure and whether the act is performed according to the procedure (program) designated by religion, but rather by taking various factors into consideration, including the place where the act is performed, the religious evaluation of the act among ordinary people, the intent and objective that the person who performs the act has and whether or not and to what extent the person has religious consciousness when performing the act, and the effect and influence that the act would have on ordinary people (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, 1982 (O) No. 902, judgment of the Grand Bench of the Supreme Court of June 1, 1988, Minshu Vol. 42, No. 5, at 277). We examine the present case from this viewpoint. According to the facts mentioned above as well as the other facts legally determined by the court of prior instance, the following circumstances are obvious. (1) The Former Monument was set up by local residents to console and honor the souls of the war dead of their hometown, and thus it is in its original nature a memorial for those who died in the war. The Monument set up after the Relocation and Rebuilding can be considered to have the same nature. Memorial services dedicated to consoling and commemorating the souls of the war dead have been held in front of the Monument once every year, in Shinto and Buddhist styles taking turns every second year, under the auspices of the district bereaved families association, which is a subordinate organization of the municipal bereaved families association. Nevertheless, the connection between the Monument and any specific religion such as Shinto has been weak at least in the post-war period, and hence the Monument cannot be regarded as a branch of S Shrine or T Shrine (so-called "Yasukuni Shrine in the village." (2) The municipal bereaved families association that owns, maintains and manages the Monument is an association whose members are war-bereaved families living in Minoh City and which has been set up to carry out activities such as promoting the mutual aid and welfare among war-bereaved families and honoring the souls of the war dead as its principal purpose, and it has not been set up as an association whose primary purpose is to carry out religious activities. (3) The main stone of the Former Monument had once been buried under the ground in the post-war period, but after being set up on the public land by the Chapter with approval of "A" village in 1916, the Former Monument continued to stand on said public land. Minoh City carried out the acts in question including the Relocation and Rebuilding only because: it became an urgent task to construct a new school building or take other measures due to the increase in the number of students and the deterioration of the existing building of H Elementary School standing next to said public land; and to achieve this, the city needed to integrate said public land into the site of the school and therefore had no choice but to relocate the Former Monument to somewhere else; and accordingly, based on the result of the negotiation with the municipal bereaved families association, the city purchased the Land from N Land Development Corporation, and leased the site in question as substitute land to the municipal bereaved families association without compensation as before; and in the end, the city relocated and rebuilt the Monument on the site in question. In view of these points, the following acts performed by Minoh City in relation to the Former Monument and the Monument, that is, the act of purchasing the Land from said corporation as substitute land to relocate and rebuild the Former Monument on the site in question (the Purchase), the act of relocating and rebuilding the Former Monument on the site in question (the Relocation and Rebuilding), and the act of leasing the site in question as the site of the Monument to the municipal bereaved families association without compensation (the Lease), were all primarily intended to relocate the establishment standing on the public land and having the nature of a memorial for those who died in the war to another place and use the former site of the establishment as the site for a school, for the purpose of constructing a new school building or taking other measures for an elementary school. In order to achieve this purpose, the city purchased substitute land for the municipal bereaved families association, which was in charge of the maintenance and management of the establishment, as the place where the establishment was to be relocated, and provided the purchased land to the association as the site for the establishment without compensation as before, and thereby relocated and rebuilt the establishment. Thus, the purpose of these acts is considered to be of a secular nature in entirety, and these acts cannot be regarded as having an effect of supporting, encouraging or promoting, or suppressing or interfering with any particular religion. Consequently, it is appropriate to construe that said acts performed by Minoh City cannot be regarded as giving rise to a connection with religion that goes beyond the level where the connection is considered to be appropriate in relation to the fundamental objective of the system of ensuring the guarantee for freedom of religion, in light of the social, cultural and other conditions in Japan, and therefore these acts do not fall within the scope of religious activities prohibited under Article 20, paragraph (3) of the Constitution. The counsel also argue that said acts performed by Minoh City violate the second sentence of Article 20, paragraph (1), and Article 89 of the Constitution. However, as explained above, these acts performed by Minoh City do not violate the principle of separation of religion and politics, which is the basis for the constitutional provisions on separation of religion and politics. Moreover, as detailed below, it should be construed that the municipal bereaved families association which owns, maintains and manages the Monument is neither a "religious organization" referred to in the second sentence of Article 20, paragraph (1) of the Constitution, nor a "religious institution or association" referred to in Article 89 of the Constitution. Consequently, said acts performed by Minoh City cannot be held to violate the abovementioned provisions of the Constitution, and hence there is no ground for the counsel's arguments of violation of the Constitution. These points are clear from the purports of the abovementioned judgments of the Grand Bench of the Supreme Court. The determination of the court of prior instance that goes along with this conclusion can be affirmed as justifiable, and the judgment in prior instance does not involve such unconstitutionality or illegality as argued by the counsel. None of their arguments can be accepted. Concerning Reasons I (except for the point examined above), and Reasons VII to IX The term "religious organization" referred to in the second sentence of Article 20, paragraph (1) of the Constitution and the term "religious institution or association" referred to in Article 89 of the Constitution do not include all organizations, institutions or associations that have any connection with religion, but these terms refer to an organization, institution or association with respect to which, if the State grants privileges, or expends or appropriates public money or any other public property for the use, benefit or maintenance of the relevant organization, etc., such acts of the State could result in supporting, encouraging or promoting a particular religion, or oppressing or interfering with it, and could violate the constitutional principle of separation of religion and politics. In other words, it is appropriate to construe that these terms refer to an organization, institution or association whose primary purpose is to carry out religious activities such as worshiping, praying and dissemination in relation to a specific religion. This is clear from the purports of the abovementioned judgments of the Grand Bench of the Supreme Court. We examine the present case from this viewpoint. The facts found by the court of prior instance with regard to the points argued by the counsel are acceptable in light of the evidence cited in the judgment in prior instance. According to these facts as well as the other facts legally determined by the court of prior instance, the following circumstances are obvious. D Association (an incorporated foundation) and the municipal and district bereaved families associations, which are D Association's branch organizations, have all been set up to carry out activities such as promoting mutual aid and welfare among war-bereaved families and honoring the souls of the war dead as their principal purpose; in the course of honoring the souls of the war dead as one of their undertakings, these associations have participated and cooperated in government-sponsored events such as the collection of the remains of the dead, pilgrimages to console the souls of the dead at battle sites overseas, and the National Memorial Services for the War Dead, and in addition, they have conducted events with a religious character such as memorial services in Shinto or Buddhist style and visits to give a prayer at S Shrine, while also participating in the campaign to promote the State support for S Shrine. However, these associations have conducted these events or participated in this campaign not with the intention of carrying out religious activities such as worshiping, praying and dissemination in relation to a specific religion as their primary purpose, but rather they have been engaged in said events and campaign, in consideration of the nature of their associations consisting of bereaved families of the war dead, as they believe that it would meet the members' requests to conduct such events, etc. dedicated to consoling, commemorating and honoring the souls of the war dead. Taking all these circumstances into consideration, it should be said that none of D Association and the municipal and district bereaved families associations, which are D Association's branch organizations, falls within the scope of organizations, institutions or associations whose primary purpose is to carry out religious activities such as worshiping, praying and dissemination in relation to a specific religion, and it is appropriate to construe that none of them falls within the scope of "religious organization" referred to in the second sentence of Article 20, paragraph (1) of the Constitution or the scope of "religious institution or association" referred to in Article 89 of the Constitution. The determination of the court of prior instance that goes along with this conclusion can be affirmed as justifiable, and the judgment in prior instance does not involve such unconstitutionality or illegality as argued by the counsel. None of their arguments can be accepted. Concerning Reasons V and VI The judgment in prior instance does not involve such illegality as argued by the counsel, and none of their arguments can be accepted. Concerning Reasons XI, XII and XXVIII I. The summary of the facts legally determined by the court of prior instance with regard to the memorial services in question is as follows. 1. On April 5, 1976, from around 10:30 a.m. to around 11:30 a.m., the district bereaved families association, which is a subordinate organization of the municipal bereaved families association, held a memorial service in Shinto style in front of the Monument. The memorial service was attended by a total of about 100 persons, including: the persons from the organizer, i.e. the president, officers and members of the municipal bereaved families associations; and the guests including the president and members of the Minoh City Assembly, the director of the social and welfare office, the director of the municipal welfare department, the heads of the residents' associations of the districts in the city, the president of the municipal commerce and industry association, the president of U Elementary School, Appellee B2 as the city mayor, late V (the defendant in the first instance) as the chairperson of the municipal board of education, and Appellee B3 as a member of said board of education and the superintendent of education. The ceremony was conducted by a Shinto priest and performed in Shinto style. The president of the municipal bereaved families association read out words for the deceased and Appellee B2 and the president of the city assembly read out memorial addresses respectively toward the Monument. After that, the attendees proceeded to the front of the altar one by one when the master of ceremony called out their titles and names, received tamagushi (branches of the sacred sakaki tree) from the Shinto priest, gave a prayer at the Monument by vowing twice, clapping hands twice and then vowing once, and offered tamagushi to the altar. At last, the master of ceremony delivered a closing address, announcing, "This ends the ceremony," and concluded the ceremony. 2. On April 5, 1977, from around 10:30 a.m. to around 11:30 a.m., the district bereaved families association held a memorial service in Buddhist style in front of the Monument. The service was attended by a total of around 100 persons who had attended the memorial service held in 1976. The ceremony was conducted by seven Buddhist priests including the priest from X Temple of W Sect and the priest from AA Temple of Y Sect, Z Division. According to the program, the master of ceremony first delivered an opening address, and then all the attendees offered a silent prayer, followed by the chanting of the Amitabha Sutra, etc., reading of a written supplication by the officiating priest, and reading of a written memorial. After that, all the attendees offered incense in front of the altar, and at last, the master of ceremony delivered a closing address and the ceremony was finished. 3. Appellee B3 received an invitation from the district bereaved families association and attended the memorial services in question as a guest for the purpose of expressing his/her condolences and sorrow for the war dead and their bereaved families. As one of the attendees, Appellee B3 offered tamagushi at the altar in the service in 1976 and offered incense in the service in 1977, but he/she did not do more than these, such as delivering an address as a guest or reading a written memorial. II. We examine whether or not Appellee B3's attendance at the memorial services in question violates the constitutional principle of separation of religion and politics and the constitutional provisions on separation of religion and politics under that principle. According to these facts as well as the other facts legally determined by the court of prior instance, the following circumstances are obvious. (1) The Former Monument was set up by local residents to console and honor the souls of the war dead of their hometown, and thus it is in its original nature a memorial for those who died in the war. The Monument set up after the Relocation and Rebuilding can be considered to have the same nature. (2) The district bereaved families association, which is a subordinate organization of the municipal bereaved families association and which held the memorial services in question, is an association whose members are war-bereaved families living in Minoh District, and it has not been set up as an association whose primary purpose is to carry out religious activities such as worshiping, praying and dissemination in relation to a specific religion. (3) Appellee B3 attended the memorial services in question as courtesy in society that a person in an important public position in the local community should show, and for the purpose of expressing his/her condolences and sorrow for the war dead and their bereaved families in religious ceremonies organized by the district bereaved families association and dedicated to consoling and commemorating the souls of the war dead in their hometown. In view of these points, the purpose of Appellee B3's attendance at the memorial services in question is considered to be of a secular nature in entirety, that is, to show courtesy in society toward war-bereaved families in memorial services dedicated to consoling and commemorating the souls of the war dead in their hometown, and such attendance cannot be regarded as having an effect of supporting, encouraging or promoting, or suppressing or interfering with any particular religion. Consequently, it is appropriate to construe that Appellee B3's attendance at the memorial services in question cannot be regarded as giving rise to a connection with religion that goes beyond the level where the connection is considered to be appropriate in relation to the fundamental objective of the system of ensuring the guarantee for freedom of religion, in light of the social, cultural and other conditions in Japan, and therefore such attendance does not violate the constitutional principle of separation of religion and politics or the constitutional provisions on separation of religion and politics under that principle. These points are clear from the purports of the abovementioned judgments of the Grand Bench of the Supreme Court. The determination of the court of prior instance that goes along with this conclusion can be affirmed as justifiable, and the judgment in prior instance does not involve such unconstitutionality or illegality as argued by the counsel. The counsel also argue that Appellee B3's attendance at the memorial services in question violates Article 20, paragraph (2) of the Constitution, and that the payment of the salaries to him/her for the period of time he/she spent for the attendance in the services is illegal. Said paragraph is a provision that directly guarantees freedom of religion in the narrow sense, and the court of prior instance found no such fact as regards violation of Appellee B3's freedom of religion. Thus, the counsel's arguments of violation of the Constitution lack a premise. Furthermore, the court of prior instance determined that the payment of salaries to Appellee B3 for the period of time he/she spent for the attendance in the services is legal. This determination can be affirmed as justifiable, and the judgment in prior instance does not involve such illegality as argued by the counsel. None of the counsel's arguments can be accepted. Concerning Reasons XIII to XXI The findings and determination made by the court of prior instance with regard to the points argued by the counsel are acceptable in light of the evidence cited in the judgment in prior instance, and the fact finding and determination process does not involve such illegality as argued by the counsel. The judicial precedents cited by the counsel are irrelevant in this case because they address different types of cases. None of the counsel's arguments can be accepted. Concerning Reason XXII I. The appellants alleged that Appellee B2, who served as B1 City Mayor, allowed the municipal property in question (the conference room in the city hall, envelopes, minibuses, passenger cars, and office paper) to be used or consumed for the memorial services in question and preparations therefor, and thus omitted the administration of said property. Accordingly, the appellants filed claims for damages for illegality of such omission against Appellee B2, by regarding Appellee B2 as the "employee in question" referred to in Article 242-2, paragraph (1), item (iv) of the Local Autonomy Act. The court of prior instance determined their action relating to this claim to be unlawful, holding that the authority to administer the municipal property in question had been delegated from B1 City Mayor to the managers of the relevant competent divisions for each item of the property, and therefore Appellee B2 does not fall within the scope of "employee in question" referred to in said item. The counsel argue that this determination involves errors in the interpretation and application of the provisions of said item and therefore violates the judicial precedent, 1980 (Gyo-Tsu) No. 157, judgment of the Second Petty Bench of the Supreme Court of April 10, 1987 (Minshu Vol. 41, No. 3, at 239). II. The finding and determination made by the court of prior instance that the authority to administer the municipal property in question had been delegated from B1 City Mayor to the managers of the relevant competent divisions for each item of the property can be affirmed as justifiable in light of the evidence cited in the judgment in prior instance. In the section below, we examine whether the appellants' claims for damages against Appellee B2 are acceptable. The term "employee in question" referred to in Article 242-2, paragraph (1), item (iv) of the Local Autonomy Act means a wide range of employees, including those who are vested with the primary authority under laws and regulations to perform the act relating to finance and accounting for which appropriateness is questioned in the relevant suit, and those who have acquired said authority such as through delegation from the former (see the abovementioned judgment of the Second Petty Bench of the Supreme Court). The head of an ordinary local public entity represents said ordinary local public entity (Article 147 of said Act), assumes the obligations to faithfully administer and execute, at their own discretion and responsibility, affairs of the ordinary local public entity based on its ordinances, budgets and other assembly resolutions as well as other affairs of public entities (Article 138-2 of said Act), and has the authority to perform a broad range of acts relating to finance and accounting, including execution of budgets, imposition and collection of local taxes, collection of contributions, usage fees, subscription fees or other fees, and acquisition, administration and disposal of property (Article 149 of said Act). In light of the details of their duty and authority, even when the head of an ordinary local public entity is to delegate a certain range of acts relating to finance and accounting under his/her authority to a particular official in advance, the head of the ordinary local public entity is supposed to have the primary authority under laws and regulations to perform these acts relating to finance and accounting, and in this respect, in the suit filed by inhabitants in the place of the relevant ordinary local public entity in which appropriateness of any act relating to finance and accounting is questioned, the head should be held to fall within the scope of "employee in question" referred to in Article 242-2, paragraph (1), item (iv) of said Act. It is therefore appropriate to construe that when the official to whom the authority is delegated in this manner has handled the relevant act relating to finance and accounting, the head should bear the liability to compensate the ordinary local public entity for the damage that it has sustained from any illegal act relating to finance and accounting performed by the official as if the head personally had also performed that illegal act relating to finance and accounting, only if the head has breached the duty to direct and supervise said official to prevent him/her from committing the illegal act relating to finance and accounting, and has intentionally or negligently omitted to prevent said official from committing the illegal act relating to finance and accounting. In that case, even though the authority to administer the municipal property in question had been delegated to the managers of the relevant competent divisions for each item of the property, Appellee B2, who served as B1 City Mayor, is the person vested with said primary authority to administer under laws and regulations as mentioned above, and hence Appellee B2 should be considered to fall within the scope of "employee in question" referred to in Article 242-2, paragraph (1), item (iv) of said Act. Contrary to this view, the court of prior instance determined the appellants' action relating to the claims for damages against Appellee B2 to be unlawful. This determination should inevitably be deemed to be illegal due to errors in the interpretation and application of the provision of said item. III. However, such illegality in the determination by the court of prior instance does not affect the conclusion of the judgment in prior instance, on the following grounds. It is clear from the case records that, with regard to the claims for damages against Appellee B2 filed due to the illegality in his/her omission to administer the municipal property in question, the court of prior instance dismissed as unlawful the claim for damages filed based on the allegation that Appellee B2 should be regarded as the "employee in question" referred to in Article 242-2, paragraph (1), item (iv) of the Local Autonomy Act (the principal claim), whereas it made findings and determination on the acceptability of the alternative claim which involves the same issues as the principal claim, that is, the claim for damages filed based on the allegation that Appellee B2 should be regarded as the "counterparty to the omission" referred to in said item, after completing the substantive examination on the relevant issues. In the present case, since the court of prior instance has thus conducted sufficient examination on the common issues as mentioned above, there is no practical need for the court of prior instance to further examine and make a determination on the claim for damages filed based on the allegation that Appellee B2 should be regarded as the "employee in question" referred to in said item (the principal claim), and therefore it is appropriate to construe that in such case, this court is permitted to directly determine the acceptability of the principal claim by taking into account the findings and determination made by the court of prior instance, without remanding the case relating to the principal claim to the court of prior instance (see 1968 (Gyo-Tsu) No. 44, judgment of the First Petty Bench of the Supreme Court of September 2, 1974, Saibanshu Minji No. 112, at 517, 1977 (Gyo-Tsu) No. 12, judgment of the Second Petty Bench of the Supreme Court of April 24, 1981, Minshu Vol. 35, No. 3, at 672, 1982 (Gyo-Tsu) No. 128, judgment of the Third Petty Bench of the Supreme Court of December 17, 1985, Minshu Vol. 39, No. 8, at 1821). The findings and determination by the court of prior instance can be accepted as justifiable as explained below (see this court's holdings on Reason XXIII for final appeal), and in light of these findings and determination, it cannot be said that Appellee B2 committed any illegal act relating to finance and accounting such as breaching his/her duty to direct and supervise the managers of the relevant competent divisions to whom he/she has delegated his/her authority to administer the municipal property in question, and hence it is also obvious that there is no ground for the claim for damages filed based on the allegation that Appellee B2 should be regarded as the "employee in question" referred to in Article 242-2, paragraph (1), item (iv) of said Act. According to this, said claim for damages should be dismissed as groundless. However, such conclusion is more disadvantageous to the appellants than the judgment in prior instance, and Articles 396 and 385 of the Code of Civil Code prohibit this court from modifying the judgment in prior instance in a manner disadvantageous to the appellants. Therefore, this court has no choice but to maintain the conclusion of the judgment in prior instance and dismiss the final appeal, and in the end, the illegality in the judgment in prior instance mentioned above does not affect the conclusion. The counsel's arguments cannot be accepted. Concerning Reason XXIII The court of prior instance, given the facts legally determined thereby, determined that Appellee B2 cannot be considered to have committed any illegal act relating to finance and accounting such as breaching his/her duty to direct and supervise the managers of the relevant competent divisions to whom he/she has delegated his/her authority to administer the municipal property in question. This determination can be affirmed as justifiable, and the judgment in prior instance does not involve such illegality as argued by the counsel. Their arguments cannot be accepted. Concerning Reasons XXIV to XXVII, XXIX, and XXXI to XXXIV The determination made by the court of prior instance with regard to the points argued by the counsel can be accepted as justifiable, and the determination process does not involve such illegality as argued by the counsel. Said determination does not conflict with the judicial precedent cited by the counsel. The counsel also argue violation of the Constitution, but they only make an abstract argument on the inappropriateness of the judgment in prior instance based on their own dogmatic view. None of their arguments can be accepted. Therefore, according to Article 7 of the Administrative Case Litigation Act, and Articles 401, 95, 89 and 93 of the Code of Civil Procedure, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices. There is a concurring opinion by Justice SONOBE Itsuo. The concurring opinion by Justice SONOBE Itsuo is as follows. The court opinion considers that the Monument, throughout the period before and after the Relocation and Rebuilding, has been a memorial for those who died in the war, which was set up for consoling and honoring the souls of the war dead in the hometown. I would like to give some comments on my view regarding this point. The Monument consists of the main stone and accessory facilities. In general, irrespective of the size, shape or materials of the main stone, with or without any accessory facilities, this type of memorial facilities, etc. serves as an object in front of which people carry out activities and events, such as commemorating and consoling the souls of the dead, and express their religious feelings of some sort. In this respect, these facilities, etc. could have a nature as religious objects rather than that as mere monuments. This may also be true when these activities and events are not held as ceremonies of any specific religion. However, it is difficult to definitively determine the nature of these memorial facilities, etc. in light of the feelings of people who are concerned with them, and moreover, it may be too much to say that clarifying the nature of these facilities, etc. is an essential requirement for determining the violation of the constitutional principle of separation of religion and politics. Consequently, in the present case, it is sufficient to make a determination according to the criteria presented in the judgments of the Grand Bench of the Supreme Court cited in the majority opinion, that is, how Minoh City is connected with the existing specific religions in respect of the Monument, and whether or not the city's connection with any such religion seems to go beyond the level where the connection is considered to be appropriate in relation to the fundamental objective of the system of ensuring the guarantee for freedom of religion, in light of the social, cultural and other conditions in Japan, irrespective of the nature of the Monument.

Justice TEIKA Katsumi Justice SAKAUE Toshio Justice SONOBE Itsuo Justice SATO Shoichiro Justice KABE Tsuneo