2021.02.24

2019(Gyo-Tsu)222

Minshu Vol. 75, No. 2

Judgment concerning a case in which the act of the mayor of a city to exempt a general incorporated association, which owns facilities where Confucius, etc. are enshrined in a city park that is under the management of the city, from the full amount of the fees for the use of part of the park as the premises of these facilities, is judged to be in violation of Article 20, paragraph (3) of the Constitution

Case seeking the revocation of the exemption from fixed asset tax, etc. (resident's suit)

Judgment of the Grand Bench, partially dismissed and partially quashed and decided by the Supreme Court

Fukuoka High Court, Naha Branch, Judgment of April 18, 2019

Under the circumstances described in the judgment including the following (1) to (5), the act of the mayor of a city to exempt a general incorporated association, which owns facilities where Confucius, etc. are enshrined on national and public lands in a city park that is under the management of the city, from the full amount of the fees for the use of part of the park as the premises of these facilities, is in violation of Article 20, paragraph (3) of the Constitution because, even in consideration of the meaning of these facilities as tourism resources, etc. or their historical value, it is unavoidably evaluated, from the public's point of view, that the city has been offering a special benefit to a specific religion involving the activities carried out by the association at the facilities and has been assisting that religion by performing said act. (1) The facilities are established as one unit within an area separated from the other parts of the city park. Inside the building that is recognized as the main sanctuary of the facilities, the statue of Confucius and the tablet called shin'i (a place to enshrine a deity) are placed in the middle at the front. Many people visit this sanctuary to pray for family prosperity, academic achievement, success in an entrance examination, or other wishes. At some time in the past, cards for wishes for academic achievement in which ashes collected from the incense burners situated in that building were sold at the facilities. (2) The ritual held at the facilities has a religious meaning of presupposing the existence of the spirit of Confucius and worshiping it, and the buildings and other structures constituting the facilities have been situated for the purpose of holding that ritual. (3) In the draft land use plan formulated by the city regarding the land surrounding the abovementioned city park, it was stated that a possible approach would be to situate the building mentioned in (1) above on private land by such means as exchanging the land in the park on which that building was to be constructed with the land owned by the association, because opinions raising an issue of the religiousness of the shrine of Confucius, etc. were expressed at the meetings of the committee, etc. for formulating the draft plan. (4) The occupied area under the permission for establishment of the facilities granted to the association is 1,335 square meters and the amount equivalent to the usage fees for the part of the park for which the payment has been exempted is 5,767,200 yen per year. Although the period of the permission for establishment is set as three years, this period is supposed to be extended unless the extension would cause any problem with the management of the park. (5) The association mentions opening the abovementioned facilities to the public and holding the ritual mentioned in (2) above as its purposes or business activities under the articles of incorporation. (There is a dissenting opinion.)

Article 20, paragraph (3) of the Constitution The Constitution of Japan Article 20 (3) The State and its organs shall refrain from religious education or any other religious activity.

1. The final appeal filed by the intervener is dismissed. 2. Of the judgment in prior instance, the part against the plaintiff in the first instance is quashed. 3. With regard to the part referred to in the preceding paragraph, the appeal to the court of second instance filed by the defendant in the first instance is dismissed without prejudice, and the appeal to the court of second instance filed by the intervener is dismissed with prejudice on the merits. 4. The costs of the appeal to the court of second instance and the costs of the final appeal shall be borne by the defendant in the first instance.

I. Outline of the case 1. This case is a resident's suit filed by the plaintiff in the first instance, who is a resident of Naha City (hereinafter referred to as the "City"), against the defendant in the first instance, in which the plaintiff alleges that the act of the then mayor of the City to permit the intervener to establish the Kume Shisei-byou, facilities in which Confucius, the founder of Confucianism, and others are enshrined (hereinafter referred to as the "Facilities"), within the city park that is under the management of the City, and then exempt the intervener from the full amount of the fees for the use of part of the park as the premises of the Facilities (hereinafter referred to as the "park usage fees"), is in violation of the principle of separation of state and religion provided for in the Constitution and therefore void, and that the defendant's failure to demand the intervener to pay the park usage fees for the period from April 1 to July 24, 2014, amounting to 1,817,063 yen (hereinafter referred to as the "Usage Fees"), constitutes illegal negligence in administration of property, and accordingly, the plaintiff seeks a declaration of the illegality of the defendant's negligence based on Article 242-2, paragraph (1), item (iii) of the Local Autonomy Act. 2. The outline of facts lawfully determined by the court of prior instance is as follows. (1) According to the Naha City Park Ordinance (Naha City Ordinance No. 6 of 1970; hereinafter referred to as the "Park Ordinance") and the Naha City Regulation for Enforcement of the Park Ordinance (Naha City Regulation No. 5 of 1970, prior to amendment by Naha City Regulation No. 21 of 2016; hereinafter referred to as the "Park Ordinance Enforcement Regulation"), a person who is granted permission for establishment of park facilities under Article 5, paragraph (1) of the Urban Park Act (hereinafter referred to as "permission for establishment of park facilities") must pay the City a monthly usage fee of 360 yen per 1 square meter of occupied area, and the monthly usage fee for each month is to be collected by the 5th day of the month (Article 11, paragraph (1), proviso to paragraph (2) of that Article, and Appended Table 1 of the Park Ordinance). The mayor of the City may grant an exemption from the full amount of the usage fees if a public organization uses part of a park for public interest purposes (Article 11-2, item (iv) of the Park Ordinance; Article 15, paragraph (1), item (ii) of the Park Ordinance Enforcement Regulation), or an exemption from the amount the mayor of the City finds necessary if the mayor finds it particularly necessary to do so (Article 11-2, item (viii) of the Park Ordinance; Article 15, paragraph (1), item (iii) of the Park Ordinance Enforcement Regulation), respectively. (2) A. The City has established and manages Matsuyama Park (hereinafter referred to as the "Park") in the Kume area of the City as an urban park prescribed in Article 2, paragraph (1), item (i) of the Urban Park Act. The Facilities form a shrine which is established on the national and public lands within the Park and in which Confucius, the founder of Confucianism, and others including his four disciples are enshrined. The intervener is the owner of the buildings and other structures constituting the Facilities. The intervener is a general incorporated association established for purposes such as: opening the Facilities, the Tenson-byou in which the Taoist deity and others are enshrined, and the Tenpi-gu in which the goddess of the sea and safe journey is enshrined, to the public; studying the history of the Thirty-six Families of Kume (people who came from the area that is currently Fujian Province in China or surrounding areas to the Ryukyu over about 300 years to about 600 years ago); and disseminating Eastern culture centering on the Analects. Its articles of incorporation stipulate these purposes and limit the regular membership to descendants of the Thirty-six Families of Kume. B. The Facilities consist of the Taisei-den, the Keiseishi, the Meirindo (with a library), the Shiseimon Gate, a path, a garden, and other components, occupying 1,335 square meters, and the premises of the Facilities are separated from the other parts of the Park by the Shiseimon Gate, the Meirindo (with a library), fences, etc. The Shiseimon Gate, which is the entrance of the Facilities, has three doors, and according to the intervener's explanation, the central door is a door for the spirit of Confucius and it is opened only on the day of the Sekiten ritual described in C. below each year in order to welcome the spirit of Confucius. The path runs straight through the garden from the Shiseimon Gate to the Taisei-den. It is said that the spirit of Confucius enters through the Shiseimon Gate, passes through the path, and goes over the Sekiryuhei stone tablet inlaid in the center of the front staircase up to the Taisei-den. The Taisei-den is recognized as the main sanctuary of the Facilities. Inside the Taisei-den, the statue of Confucius and the tablet called shin'i (a place to enshrine a deity) are placed in the middle at the front, and the shin'i tablets of the Four Disciples are placed on adjacent sides. In addition to tourists, many people visit this sanctuary to pray for family prosperity, academic achievement, success in an entrance examination, or other wishes. At some time in the past, cards for wishes for academic achievement in which ashes collected from the incense burners situated in the Taisei-den were sold at the Facilities. C. Since 2013, an event called the Sekiten ritual has been held at the Facilities each year on September 28, which is said to be the birthday of Confucius. The contents of this event include welcoming the spirit of Confucius while placing offerings, lighting incenses, reading the congratulatory address, and then seeing off the spirit of Confucius. The intervener clearly stipulates in its articles of incorporation that holding the Sekiten ritual is its business activity, and it does not allow this event to be conducted by any people other than the descendants of the Thirty-six Families of Kume, for fear that this business activity could become a mere facade, a sightseeing show, or a secularized event. (3) A. The Thirty-six Families of Kume were a professional group of people who had techniques in navigation, shipbuilding, etc. and supported the prosperity of the Ryukyu Kingdom by carrying out interpretation services and trading. They lived in the Kume district and established the Shisei-byou in this district in the 17th century as a facility to enshrine Confucius and others, and in the area adjacent thereto, they established the Meirindo, which is said to be the first public school in Ryukyu, in the 18th century (hereinafter the Shisei-byou and the Meirindo around that time are collectively referred to as the "initial Shisei-byou, etc."). The initial Shisei-byou, etc. and their premises were placed under state ownership as properties similar to temples and shrines after Okinawa Prefecture was established in 1879. After that, upon a petition, they were returned to then Naha Ward in 1902, and then transferred to the intervener's predecessor, the General Institute of Kume Sousei (an incorporated association) (hereinafter treated as the same entity as the intervener and referred to as the "intervener") in 1915. The initial Shisei-byou, etc. were subject to regulations imposed by Okinawa Prefecture which were equivalent to regulations on temples and shrines with regard to construction, etc. of structures on their premises. The initial Shisei-byou, etc. were burnt down in a fire during the Second World War and were not rebuilt in the Kume district thereafter due to land readjustment. However, around 1974 to 1975, the Shisei-byou and the Meirindo were rebuilt together with the Tenson-byou and the Tenpi-gu on the land owned by the intervener in Wakasa, Naha City (hereinafter the Shisei-byou and Meirindo around that time are collectively referred to as the "former Shisei-byou, etc."), and the intervener began to maintain and manage these facilities. In the intervener's bulletin, it is stated that about 200 people per day usually visit and offer prayers at the former Shisei-byou, etc., the Tenson-byou, and the Tenpi-gu. B. In March 1999, the intervener obtained information that the City would purchase the site of the former Kume Post Office from the State and use it as part of the Park. Although that site was not the place where the initial Shisei-byou, etc. had been located, the intervener intended to relocate the Shisei-byou to that site and have it return to the Kume district, and in December 2000, the intervener began activities to make a request to that effect to the City. The City held meetings of the Committee for Formulation of a Draft of the Land Use Plan for Land Surrounding Matsuyama Park and its taskforce (hereinafter referred to as the "Committee, etc."). At these meetings, experts and other attendants discussed the land use plan for the land surrounding the Park, and some expressed opinions raising an issue of the religiousness of the Shisei-byou. In September 2003, based on the discussion, etc. at the Committee, etc., the City formulated a draft of the Land Use Plan for Land Surrounding Matsuyama Park (hereinafter referred to as the "Draft Land Use Plan"). In the Draft Land Use Plan, it was stated that the Taisei-den was decided to be developed as a symbol of the park, but it would be difficult to use a public subsidy for the construction of this facility or construct it on national land or public land because its nature as a public facility would become controversial, and that a possible approach would be to situate the facility on private land by such means as exchanging the land in the park with the land owned by the intervener. C. The City purchased the national land located in Kume, Naha City (land area: 4560.30 square meters) from the State as the site of part of the Park at the price of 766 million yen as of February 1, 2006, and concluded a contract for leasing government assets for no charge with the State regarding the national land at the same location (land area: 2280.14 square meters) as of June 21, 2006. D. The then mayor of the City, upon the application of the intervener, granted permission for establishment of park facilities regarding the Facilities as of March 31, 2011 (the period of establishment: from the day of permission to March 31, 2014), and granted exemption from the full amount of the park usage fees during that period under Article 11-2, item (iv) of the Park Ordinance and Article 15, paragraph (1), item (ii) of the Park Ordinance Enforcement Regulation. The intervener commenced the construction of the Facilities on March 20, 2012, and completed the construction by April 30, 2013. Due to the expiration of the abovementioned period of establishment, the then mayor of the City, upon the application of the intervener, granted permission for establishment of park facilities regarding the Facilities as of March 28, 2014 (period of establishment: from April 1, 2014, to March 31, 2017; hereinafter referred to as the "Permission for Establishment"), and granted exemption from the full amount of the park usage fees during that period under Article 11-2, item (iv) of the Park Ordinance and Article 15, paragraph (1), item (ii) of the Park Ordinance Enforcement Regulation (hereinafter referred to as the "Exemption"). This period of establishment was supposed to be extended unless the extension would cause any problem with the management of the Park. II. Concerning the reasons for final appeal stated by the counsel for final appeal in 2019 (Gyo-Tsu) No. 222, OSHIRO Hiroshi, et al., and the reasons for final appeal stated by the counsel for the supporting intervener for final appeal in the same case, TOYAMA Naoyuki and OSHIMA Yuki 1. The court of prior instance determined that the Exemption is in violation of the second sentence of paragraph (1) of Article 20, paragraph (3) of that Article, and Article 89 of the Constitution, for reasons such as that the Exemption, as its direct effect, makes it easy for the intervener to carry out its religious activities using the Facilities. The counsel for final appeal and the counsel for the supporting intervener argue that this determination of the court of prior instance contains errors in the interpretation and application of the provisions mentioned above and that the reasons attached to the judgment in prior instance are defective. 2. The Constitution contains provisions based on the principle of separation of state and religion in the second sentence of paragraph (1) of Article 20, paragraph (3) of that Article, and Article 89 (hereinafter referred to as the "provisions on separation of state and religion"). In general, the term "principle of separation of state and religion" is considered to mean secularity or religious neutrality of the State (including local governments; hereinafter the same applies). In Japan, various religions have developed and coexisted in a pluralistic and multi-layered manner, and for the purpose of ensuring achievement of freedom of religion under such religious circumstances, it was not sufficient just to guarantee freedom of religion unconditionally, but it was significantly necessary to set forth the provisions on separation of state and religion in order to completely eliminate connections between the State and any kind of religion. However, the State may have various types of connections with religion, and it is not that the State is prohibited from having any connection with religion at all. Rather, the provisions on separation of state and religion can be interpreted as prohibiting the State's connection with religion in cases where its connection with religion is found to be 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. If the State or a local government grants exemption from payment of fees for the use of land as the premises of facilities standing on national and public lands, it is easy to imagine that such facilities may have various characteristics or that such exemption may have been granted under various circumstances. For instance, a facility that has the nature of a religious facility in general terms can be, at the same time, protected as historic or cultural property. Such facility often has other meanings as tourism resources, means of promoting international goodwill, places where local residents cultivate mutual friendship, and so forth, and there may be cases where an exemption may be granted, while focusing on such cultural or social value or meanings. These circumstances may have an influence on whether or not the exemption is evaluated from the public's point of view to serve as assistance or the like for a specific religion, and therefore in the process of examining the relation with the principle of separation of state and religion, these circumstances should be taken into consideration as an important factor. Assuming so, when determining whether or not the exemption is, in light of the abovementioned conditions, beyond the limit that is deemed to be reasonable in relation to the fundamental purpose of the system of securing guarantee of freedom of religion, and in violation of the provisions on separation of state and religion, it is reasonable to consider that determination should be made comprehensively in light of socially accepted ideas, while taking into consideration various factors, including the nature of the facility in question, the circumstances where the exemption has been granted, the manner of offering the national and public lands for no charge as a result of the exemption, and the public's evaluation of such practice. The reasoning shown above is obvious from the purport of the precedents 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, 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, 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, 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, etc.). 3. (1) According to the facts mentioned above, the Facilities are established as one unit within the area separated from the other parts of the Park. The Taisei-den is recognized as the main sanctuary of the Facilities. Inside the Taisei-den, the statue of Confucius and the shin'i tablet are placed in the middle at the front, and the shin'i tablets of the Four Disciples are placed on adjacent sides. Many people visit this sanctuary to pray for family prosperity, academic achievement, success in an entrance examination, or other wishes. In addition, at some time in the past, cards for wishes for academic achievement in which ashes collected from the incense burners situated in the Taisei-den were sold at the Facilities. Thus, the Facilities, in light of their appearance and other features, can be said to have similarity to a temple or shrine, which receives prayers to the enshrined object or its principal image. The Sekiten ritual held at the Facilities, in view of its contents, i.e., welcoming the spirit of Confucius while placing offerings, lighting incenses, reading the congratulatory address, and then seeing off the spirit of Confucius, is nothing other than a ceremony with a religious meaning, which is intended not only to honor Confucius, who is a thinker, as a great person in history, but beyond that, to presuppose the existence of his spirit and worship it. Furthermore, the intervener demonstrates the stance of not allowing the Sekiten ritual to be held as a sightseeing show or the like, and nothing suggests that the Sekiten ritual is held mainly for secular purposes such as tourism promotion. Further, according to the intervener's explanation, the central door of the Shiseimon Gate is opened only on the day of the Sekiten ritual each year in order to welcome the spirit of Confucius, and the spirit of Confucius passes along the path that runs straight through the garden to the Taisei-den, and goes over the Sekiryuhei stone tablet inlaid in the center of the front staircase up to the Taisei-den. Thus, it can be said that the buildings and other structures constituting the Facilities have been situated for the purpose of holding the Sekiten ritual, which is a ceremony that has the religious meaning described above. In addition, the initial Shisei-byou, etc. had been treated in the same manner as temples and shrines at least since the beginning of the Meiji era, and moreover, the former Shisei-byou, etc. were situated at the same site as the Tenson-byou in which the Taoist deity and others are enshrined, and the Tenpi-gu in which the goddess of the sea and safe journey is enshrined, and it seems that the intervener maintained and managed these facilities as one unit and accepted many visitors. Considering that the former Shisei-byou, etc. are recognized as the reconstruction of the initial Shisei-byou, etc. and that the Facilities are recognized as the relocation of the former Shisei-byou, etc., it can be said that the Facilities inherit the religiousness of the initial Shisei-byou, etc. and the former Shisei-byou, etc. For the reasons stated above, it goes without saying that the Facilities, as one unit, can be confirmed to have a religious nature, and the degrees of their religiousness cannot be deemed to be insignificant. (2) With regard to the circumstances where the Exemption was granted, it seems that the City focused on the meaning of the Facilities as tourism resources, etc. or found historical value in the Facilities for such reasons that the Facilities were located in the Kume district, where the Thirty-six Families of Kume, who supported the prosperity of the Ryukyu Kingdom, once lived and the initial Shisei-byou, etc. once existed, and therefore, the City decided to grant exemption from the fees for the use of part of the Park as the premises of the Facilities (the park usage fees). However, while the City purchased or leased additional national land from the State as the site of part of the Park, the intervener owned the former Seishi-byou, etc. on its own land, and moreover, in light of the opinions expressed at the Committee, etc. that raised the issue of the religiousness of the Shisei-byou, it was stated in the Draft Land Use Plan that a possible approach would be to situate the Taisei-den on private land by such means as exchanging the land in the park on which the Taisei-den was to be constructed with the land owned by the intervener. In addition, the Facilities were newly constructed in 2013 at a place that is different from the place where the initial Shisei-byou, etc. existed, and thus, it does not seem that they constitute the restoration of the initial Shisei-byou, etc., nor are there any circumstances suggesting that they are treated as cultural property under laws and regulations. In that case, it cannot be said that the meaning of the Facilities as tourism resources, etc. or their historical value directly provides support for the necessity and reasonableness of the measure to offer national and public lands to the intervener for no charge as the premises of the Facilities by granting the Exemption. (3) The national and public lands were offered for no charge as a result of the Exemption in the following manner: the occupied area under the Permission for Establishment is as large as 1,335 square meters and the amount equivalent to the park usage fees for which the payment is exempted is as large as 5,767,200 yen per year (the occupied area of 1,335 square meters x 360 yen per month x 12 months). The intervener can thus enjoy a substantial profit from the Exemption. Furthermore, although the period of the Permission for Establishment is set as three years, this period is supposed to be extended unless the extension would cause any problem with the management of the Park. Hence, the extension will be repeated as long as the buildings and structures constituting the Facilities continue to exist, and if the intervener is exempt from the park usage fees upon each extension, the intervener can continuously enjoy the same profit as above. Although the intervener engages in studying the history of the Thirty-six Families of Kume as one of its purposes, it also mentions opening the Facilities that have religious nature to the public and holding the Sekiten ritual that has religious meaning as its purposes or business activities under its articles of incorporation, and it actually accepts many visitors and holds the Sekiten ritual at the Facilities. In consideration of the details, significance, etc. of the activities carried out by the intervener at the Facilities, the Exemption can be regarded as enabling the intervener to enjoy the abovementioned profit and thereby making it easy for the intervener to carry out religious activities using the Facilities, and it cannot be said that the Exemption has only an indirect or incidental effect. (4) According to the explanation given above, even in consideration of the meaning of the Facilities as tourism resources, etc. or their historical value, it is unavoidably evaluated, from the public's point of view, that the City has been offering a special benefit to a specific religion involving the abovementioned activities of the intervener and has been assisting that religion by granting the Exemption. (5) Taking into consideration the factors described above and making determination comprehensively in light of socially accepted ideas, it is reasonable to consider that the Exemption shows that the connection between the City and a certain religion goes 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 it constitutes a religious activity that is prohibited under Article 20, paragraph (3) of the Constitution. 4. Based on the above, without needing to determine whether the Exemption is in violation of the second sentence of paragraph (1) of Article 20 or Article 89 of the Constitution, the determination of the court of prior instance that judged the Exemption to be unconstitutional can be upheld. It cannot be said that the reasons attached to the judgment in prior instance are defective to the extent that such defect constitutes the reason for final appeal. None of the arguments stated by the counsel can be accepted. III. Concerning the reasons for a petition for acceptance of final appeal stated by the counsel for final appeal in 2019 (Gyo-Hi) No. 262, TOKUNAGA Shinichi and IWAHARA Yoshinori 1. Based on the facts mentioned in I. 2. above, the court of prior instance judged that the Exemption was void, and upheld the claim of the plaintiff in the first instance to the extent of seeking a declaration that it is illegal for the defendant in the first instance to fail to demand the intervener to pay the park usage fees for the period from April 1 to July 24, 2014, while dismissing the remaining part of the claim. The summary of the determination of the court of prior instance is as described below. In the Park Ordinance and the Park Ordinance Enforcement Regulation, it is provided that upon finding it particularly necessary, the defendant in the first instance may grant exemption from part of the usage fee for a city park. Therefore, even if the defendant assumes the obligation to collect the park usage fees from the intervener when granting the Permission for Establishment, the defendant's failure to collect the full amount of the Usage Fees cannot immediately be regarded as going beyond the bounds of the defendant's discretionary power in the administration of property or constituting an abuse of such power and judged to be illegal. 2. However, the determination of the court of prior instance mentioned above cannot be upheld, for the following reasons. (1) In light of the facts that the amount of usage fees under the Park Ordinance, which is due to a person who is granted permission for establishment of park facilities, is determined as a single fixed amount, and that provisions that assume acts such as a decision to impose usage fees cannot be found in the Park Ordinance or the Park Ordinance Enforcement Regulation, it is reasonable to consider that the usage fees are automatically incurred when a prescribed period of time passes after permission for establishment of park facilities is granted. In the case of the intervener, the prescribed period of time has passed after the intervener was granted permission for establishment of park facilities, and the Exemption should be judged to be unconstitutional and void. Therefore, it can be said that the claim for the Usage Fees held by the City against the intervener existed in the full amount at the time of conclusion of oral arguments in the fact-finding proceedings. (2) According to the provisions of Article 231-3, paragraph (1), etc. of the Local Autonomy Act concerning a demand for payment related to revenues of local public entities such as usage fees, as well as the provisions of Article 240 of that Act and Articles 171-2 to 171-7 of the Enforcement Order of the Local Autonomy Act concerning the management of claims held by local public entities, it is unallowable for the head of a local public entity to, without reason, neglect to enforce claims for usage fees that objectively exist or grant exemption from such claims, and in principle, the head of a local public entity has no discretion to decide whether or not to exercise these claims (see 2000 (Gyo-Hi) No. 246, judgment of the Second Petty Bench of the Supreme Court of April 23, 2004, Minshu Vol. 58, No. 4, at 892). Although Article 11-2, item (viii) of the Park Ordinance provides for partial exemption from usage fees, a decision to grant exemption under that item had not been made by the time of conclusion of oral arguments in the fact-finding proceedings, and neither the Park Ordinance nor the Park Ordinance Enforcement Regulation provides for measures such as deferment of collection of usage fees already incurred. Furthermore, circumstances that correspond to the requirements for suspension of collection, etc. prescribed in Articles 171-5 to 171-7 of the Enforcement Order of the Local Autonomy Act cannot be found in this case. Accordingly, it cannot be said that the defendant in the first instance has discretion to decide whether or not to exercise the claim for the Usage Fees, and the defendant's failure to demand the full amount of the claim should inevitably be judged to be illegal. (3) The determination of the court of prior instance that is contrary to the above contains violation of laws and regulations that obviously affects the judgment, and the counsel's arguments to the same effect as above are well-grounded. IV. Conclusion For the reasons stated above, the Court dismisses the intervener's final appeal. Of the judgment in prior instance, the part against the plaintiff in the first instance should inevitably be quashed. The plaintiff's claim is well-grounded, and the judgment in first instance that upheld this claim is justifiable. Therefore, with regard to said part of the judgment in prior instance, the Court dismisses with prejudice on the merits the intervener's appeal to the court of second instance, while dismissing without prejudice the appeal to the court of second instance, which was filed by the defendant in the first instance after the intervener's appeal was filed, because it is a duplicate appeal and unlawful. Accordingly, the Court unanimously decides as set forth in the main text of the judgment, except that there is a dissenting opinion by Justice HAYASHI Keiichi. The dissenting opinion by Justice HAYASHI Keiichi is as follows. I cannot agree with the majority opinion that determined the Exemption to be in violation of Article 20, paragraph (3) of the Constitution and therefore void. The reasons for my opinion are as follows. 1. With regard to the Facilities in which the intervener holds an event called the Sekiten ritual once a year and which accept visitors, the then mayor of the City found value in their nonreligious objectives, i.e., tourism promotion (providing a sightseeing spot as facilities that demonstrate the historical connection between China and Okinawa) and promotion of education and learning (among others, providing experience learning and lectures at the Meirindo to disseminate the Analects, the scholarship or system of thought that is deeply rooted in Japan and can be described as one of the pillars of Eastern culture), and exempted the intervener from the full amount of the fees for the use of part of the Park as the premises of the Facilities (it seems that the building in question was constructed by the intervener at a cost of as large as more than 200 million yen). In this respect, the majority opinion determined that the Facilities, as one unit, can be confirmed to have a religious nature and the degrees of their religiousness cannot be deemed to be insignificant for such reasons that the Facilities have the appearance of religious facilities, the Sekiten ritual that is held by the intervener at the Facilities appears to have a religious meaning of presupposing the existence of the spirit of Confucius and worshiping it, and the Facilities accepted visitors who are not the intervener's members. Based on this determination, the majority opinion judged that, without the need to judge that the intervener is a religious organization as was judged by the court of prior instance, when viewed in light of the framework of judicial precedents of cases including the Sorachibuto Shrine Case, the act of the then mayor of the City to grant exemption from a large amount of usage fees for part of the Park as the premises of the Facilities in full amount goes beyond the limit that is deemed to be reasonable if determination is made comprehensively in light of socially accepted ideas and it constitutes a religious activity carried out by the State, etc., which is prohibited under Article 20, paragraph (3) of the Constitution, and therefore that the exemption is unconstitutional and void. 2. It seems that the intervener is a loosely combined association of kin groups (Monchu) consisting of descendants of people who came from China and belonged to families called the Thirty-six Families of Kume, and in legal terms, the intervener is a general incorporated association. In its articles of incorporation, the intervener states that its purposes include studying the history of the Thirty-six Families of Kume, who made a great contribution to the development of the Ryukyu Kingdom, opening the Facilities including the Taisei-den and the Meirindo to the public, disseminating Eastern culture centering on the Analects, and developing human resources, and as business activities to be carried out to achieve these purposes, it mentions such activities as holding the Sekiten ritual, which is a traditional culture that dates back to the era of the Ryukyu Kingdom, disseminating Eastern culture including the Analects, and promoting cultural exchange. In light of these purposes provided in the articles of incorporation, it can be said that today, the intervener recognizes it as its important purposes to maintain the facilities constituting Confucius's mausoleum with the design of the era of the Ryukyu Kingdom and continue to hold the Sekiten ritual at these facilities, while disseminating Eastern culture including the Analects among young people. In view of these purposes, it does not seem that today, the intervener, as a group, intends to share the worship of Confucianism as a religion and inherit and disseminate it. It is a well-known fact that in the past, the Analects permeated in East Asian countries including China and Japan and they were thought of as the basic knowledge or culture not only among the intellectuals and leaders but also among a wide range of common people, and that the Four Books and Five Classics (Shishogokyo) including the Analects were regarded as compulsory subjects that must be completed for achieving a successful career, and among them, the Analects were considered to be conclusively important. The Meirindo, which is also located in the Facilities, was initially constructed as a place for learning, and it seemingly formed Confucius's mausoleum as one unit of facilities together with the Taisei-den, which is the symbol of the authority of Confucius and his thought. However, it cannot be denied that amid the democratic development after the war, the importance of the Analects in society decreased because of the notion that Confucianism is a feudalistic or pre-modern moral code, and it can no longer be said that education on the Analects is provided systematically. Therefore, it may be of some significance for the intervener to provide a forum to disseminate the Analects along with conducting historical study. Viewed as such, it is impossible to regard the intervener as a group of people who are bound by the worship of a specific religion and practice it on a routine basis, regardless of whether the specific religion is Confucianism or any derivative religion, even by evaluating not only its articles of incorporation but also the activities that it actually carries out. Rather, the intervener can be evaluated as a combined association of kin groups consisting of descendants of the Thirty-six Families of Kume, which aims to maintain and strengthen the bonds of the groups while commemorating the achievements of their ancestors amid the changes in the post-war history and society, as in the case of other Monchu groups. The Sekiten ritual, which is held at the Facilities, can be explained as showing that the intervener strives to disseminate the culture based on Confucianism and the Analects, to which their ancestors gave weight as the basis of thought and practice of people from China, to people outside their groups, and at the same time, it aims to share among people in their groups the tradition of showing their veneration for Confucius, the founder of Confucianism and the Analects, and hold and inherit traditional events. From this viewpoint, it may be sufficiently possible to consider that the intervener engages in inheriting the tradition or custom that has been passed down from generation to generation, rather than engaging in religious activities based on worship, and the religious nature of these activities, even if it remains, is already diluted. 3. In the judicial precedents in which compliance with the provisions on separation of state and religion was disputed, there was Shintoism or Buddhism as the premise and the relationship between the State and these religions was the subject of determination. More specifically, in the precedents of cases in which acts such as holding of Jichinsai (a ground-breaking ceremony), payment of Tamagushiryo (monetary offerings), and provision of land for a shrine or a statue of Jizo were points in dispute, it can be said that the court assessed the degree of religiousness of the relevant acts or activities of the State, etc. by measuring their distance from Shintoism or Buddhism and determined whether they have a religious nature beyond the reasonable limit in light of socially accepted ideas, according to the purpose-effect test or through comprehensive judgment. However, in view of the purposes that the intervener advocates in its articles of incorporation and the activities that it actually carries out on a routine basis, I consider that the Facilities and the Sekiten ritual do not have a religious nature, or at least they have become custom and they are now less religious. In fact, there is a case where the member who presides over the Sekiten ritual, which is judged to have a religious meaning, is a believer of another religion. Furthermore, none of the elements that are considered to be essential elements of a religion from a commonsense perspective, such as a religious leader or clergy and a group of believers, a certain degree of organizational framework that connects them, and activities for dissemination, have been found with regard to the intervener, not to mention a religious doctrine, that is, a modality and manner of worship. With regard to the acceptance of visitors at the Facilities, although it is impossible to make a definitive statement because it concerns the respective visitors' minds, it can at least be said that there is no evidence showing that the visitors necessarily offer prayers based on their religious devotion. As shown by the fact that one of the reasons for granting the Exemption was tourism promotion, it is highly likely that most visitors are tourists who come to see Confucius's mausoleum, which is situated at a corner of the Park and located in the farthest south of Japan. Whatever the case may be, it does not seem that the visitors offer prayers as an organized religious activity, nor does it seem that the intervener carries out activities to disseminate religion among the visitors. Therefore, it is hard to consider that the existence of visitors is a decisive factor for determining the religious nature of the Facilities. After all, I consider that the intervener's argument that the Facilities and its activities do not have a religious nature has not been examined sufficiently. It is true that the issue of religious nature ultimately becomes an issue of people's minds and it is not suited to a judicial decision. However, even when there are reasonable arguments and grounds for denying the religious nature of the Facilities as of today, and the Facilities have already become nonreligious or less religious as mentioned above, if the court confirms their religious nature only by their appearance and finds violation of the provisions on separation of state and religion based on this premise, it is as if "using an ox-knife to cut a chicken." 4. In addition, the provisions on separation of state and religion are based on the notion that if the State, etc. has a connection with a specific religion, this could assist or encourage that religion or cause oppression to other religions, and therefore, in order to achieve the purpose of securing freedom of religion, the State, etc. should be prohibited from having a connection with religion beyond the limit that is deemed to be reasonable. However, if it is impossible to identify a religion more clearly than as a "certain" religion or find the existence of a religious organization or group, including a group of believers, this means that the subject to be encouraged cannot be identified, and in that case, it may be impossible to question violation of the provisions on separation of state and religion. And yet, if the court determines that the exemption in question is in violation of the provisions on separation of state and religion in this case, such determination could excessively and ambiguously expand the extension of the provisions on separation of state and religion, and even though factors such as the designation as cultural property and purpose of international exchange can be taken into consideration in the process of making comprehensive judgment, said determination could cause adverse effects such as a chilling effect that inhibits public assistance to historical study and cultural activities due to the fear of being criticized for violation of the Constitution or bearing the burden of legal proceedings. 5. For the reasons stated above, there is an error in the determination of the court of prior instance that the Exemption constitutes a religions activity that is prohibited under Article 20, paragraph (3) of the Constitution, and the Exemption cannot be judged to be in violation of the second sentence of paragraph (1) of Article 20 or Article 89 of the Constitution. Assuming so, although the intervener, a private organization, seems to be relatively wealthy as it continues to own the site of the former Seishi-byou, etc., the then mayor of the City exempted the intervener from the full amount of the usage fees, which was as large as five million yen per year, and I consider that this exemption is in itself excessive as public assistance and I feel odd about this. Having said that, since the Exemption cannot be judged to be void, there is no choice but to dismiss the claim of the plaintiff in the first instance.

Justice OTANI Naoto Justice IKEGAMI Masayuki Justice KOIKE Hiroshi Justice KIZAWA Katsuyuki Justice KANNO Hiroyuki Justice YAMAGUCHI Atsushi Justice TOKURA Saburo Justice HAYASHI Keiichi Justice MIYAZAKI Yuko Justice MIYAMA Takuya Justice MIURA Mamoru Justice KUSANO Koichi Justice UGA Katsuya Justice HAYASHI Michiharu Justice OKAMURA Kazumi