2002.07.09

1998(Gyo-Tsu)239

Minshu Vol.56, No.6, at 1134

Judgment upon the case concerning the availability of an action by the state or a local public organisation solely as a subject of administrative power vis-a-vis an individual for the enforcement of a duty in the area of public administration.

Case to seek injunction for the Continuation of a Building Work

Judgment of the Third Petty Bench, quashed and decided by the Supreme Court

Osaka High Court, Judgment of June 2, 1998

1. An action by the state or a local public organisation solely as a subject of administrative power vis-a-vis an individual for the enforcement of a duty in the area of public administration is unlawful. 2. The action brought by the City of Takarazuka vis-a-vis the person to whom the suspension order for the building construction based upon Article 8 of the Regulation on the Rules concerning the Construction of Pachinko Parlours, Game Centres, and Pleasure Hotels (Regulation No.19 of the Takarazuka City, 1983) requesting the court to rule that the building work should be discontinued is unlawful.

Law on Courts Article 3 (the Power of the Court) 1. The court adjudicates all legal disputes except for cases specifically provided by the Constitution and holds other powers specifically provided by law. 2. The preceding provision does not exclude administrative agencies' power of adjudication as a preliminary instance. 3. Provisions of this Law do not prevent the introduction of the jury system by law in criminal matters. Law on the Substitute Enforcement by the Administration Article 1 Concerning the ensurance of the performance of an obligation in the area of public administration, unless provided by other laws. Regulation on the Rules concerning the Construction of Pachinko Parlours, Game Centres, and Pleasure Hotels (Regulation No.19 of the Takarazuka City, 1983) Article 8 The mayor may order the discontinuation of building works, recovery of the status quo ante, and other necessary measures vis- a-vis those who intend to build installation which is subject to guidance against Article 3, or those who do not comply with the guidance of the mayor as provided by Article 6.

The judgment of the original instance court shall be quashed, and the judgment of the first instance court shall be revoked. The claim shall be dismissed. The entire cost of the action shall be borne by the jokoku appellant.

1. In the present case, the head of the jokoku appellant which is a local public organisation issued a suspension order based upon Article 8 of the Regulation on the Rules concerning the Construction of Pachinko Parlours, Game Centres, and Pleasure Hotels (Regulation No.19 of the Takarazuka City, 1983, hereinafter, 'the Regulation') for the building work undertaken by the jokoku appellee who intended to build a pachinko parlour, but since the jokoku appellee failed to comply, asked the court to rule that the jokoku appellee should not continue the building work. The first instance court found this action to be lawful, ruled that the claim was groundless, and dismissed it. The original instance court upheld the judgment of the first instance court and dismissed the koso appeal by the jokoku appellant. 2. In the following, the lawfulness of the action shall be examined. In civil cases including administrative cases, matters on which the court is entitled to adjudicate on the basis of its inherent power are limited to 'legal disputes' as provided by Article 3, para.1 of the Law on Courts, i.e. disputes on the existence or absence of specific rights or duties or legal relations between the parties which can be solved by the application of law (Supreme Court 1976 (O) No.749, Judgment of the Supreme Court, the Third Petty Bench, April 7, 1981, Minshu Vol.35, No.3, p.443). Actions by the state or local public organisations as the subject of a proprietary right seeking protection and remedy of its rights and interests on the property qualify as legal disputes. However an action by the state or local public organisations solely as the subject of administrative power requiring an individual to perform his obligation in the area of public administration is for the purpose of the ensurance of the appropriateness of the application of the law or the protection of public interest in general and is not intended for the protection and remedy of its own rights and interests, and therefore, does not as a matter of fact become an object of adjudication by the court as a legal dispute, and is permissible only when there is a special provision enabling it in the law. The Law on Substitute Enforcement by the Administration provides that except for the matters provided by other laws, the ensurance of the performance of an obligation in the area of public administration is to be covered by this Law (Article 1), and thus declares that this is the general law in this area. As a specific means of enforcement, the Law only acknowledges substitute enforcement as provided by Article 2 of the Law. In the Law on Administrative Litigation and other laws, there is no specific provision which generally allows the state or local public organisations to bring an action against an individual asking for the performance of an obligation in the area of public administration. Therefore, [Summary 1] an action by the state or a local public organisation, solely as the subject of administrative power, which requires an individual to perform an obligation in the area of public administration is not a legal dispute as provided by Article 3, para.1 of the Law on the Courts, and in the absence of a specific provision allowing this, is unlawful. [Summary 2] The present action has been brought by the jokoku appellant which is a local public organisation, requiring the performance of an obligation in the area of public administration based upon Article 8 of the Regulation. According to the facts established by the original instance court, there are no circumstances to believe that this obligation derives from the proprietary rights of the jokoku appellant, and thus, this is not a legal dispute, and therefore, unlawful. In the judgment of the original instance court, there is a breach of law which obviously affects the judgment and the judgment of the original instance court shall be quashed. According to the above, the judgment of the first instance court shall be rescinded and the claim shall be dismissed. Thus, the justices unanimously rule as the main text of the judgment.

Justice KANATANI Toshihiro Justice OKUDA Masamichi Justice HAMADA Kunio Justice UEDA Toyozo