Nursery
School System
The
nursery school system in Japan is administered by the Ministry of Health, Labour
and Welfare http://www.mhlw.go.jp/english/.
That is to say, it does not fall under the Ministry of Education, and is not a
part of the compulsory education system. As such, it is one of several daycare options
from which parents that work can choose. Another daycare option is
kindergartens, for example.
Another
aspect of the nursery school system is that the concept of a school district is
not applied. The rationale for this was to provide the flexibility to enable
parents to choose a nursery school that fit their working life, such as a
nursery school closer to their workplace, for example.
The
Child Welfare Act, which is the law that governs administration of the nursery
school system, was substantially revised in 1997 in a manner such as to
institutionalize the parents’ choice of nursery school.
A
large number of academic studies by legal scholars have been published on this
issue by Japanese legal scholars, and one Supreme Court decision broaches the
issue of parents’ selection specifically. I pointed that decision out to my attorney (she didn't seem to have found it herself), but she deemed it not necessary to make reference to it directly in the petitions. That may be because technically the point related to "choice" wouldn't be considered a "legal precedent", as that was a peripheral--though not irrelevant--issue to the decision. The question as to what constitutes a "legal precedent" is at issue, and will be discussed more specifically in context in a subsequent post.
The legal point relating to parents' choice is, however, the letter of the law according to Article 24 of the child Welfare Act, so it did not seem entirely unreasonable to me at the time.
As the Japanese government has not updated the text of the law per the revision of 2009, I’m not going to post a translation. I've simply highlighted the portions of the Japanese text pertaining to parents’ choice of nursery school. There are a couple of other points that were violated by the city of Kyoto that will be addressed in the specific context of the case. I've omitted item 4 as it is not relevant to the case.
The legal point relating to parents' choice is, however, the letter of the law according to Article 24 of the child Welfare Act, so it did not seem entirely unreasonable to me at the time.
As the Japanese government has not updated the text of the law per the revision of 2009, I’m not going to post a translation. I've simply highlighted the portions of the Japanese text pertaining to parents’ choice of nursery school. There are a couple of other points that were violated by the city of Kyoto that will be addressed in the specific context of the case. I've omitted item 4 as it is not relevant to the case.
第二十四条 市町村は、保護者の労働又は疾病その他の政令で定める基準に従い条例で定める事由により、その監護すべき乳児、幼児又は第三十九条第二項に規定する児童の保育に欠けるところがある場合において、保護者から申込みがあつたときは、それらの児童を保育所において保育しなければならない。ただし、保育に対する需要の増大、児童の数の減少等やむを得ない事由があるときは、家庭的保育事業による保育を行うことその他の適切な保護をしなければならない。
○ ２ 前項に規定する児童について保育所における保育を行うことを希望する保護者は、厚生労働省令の定めるところにより、入所を希望する保育所その他厚生労働省令の定める事項を記載した申込書を市町村に提出しなければならない。この場合において、保育所は、厚生労働省令の定めるところにより、当該保護者の依頼を受けて、当該申込書の提出を代わつて行うことができる。
○ ３ 市町村は、一の保育所について、当該保育所への入所を希望する旨を記載した前項の申込書に係る児童のすべてが入所する場合には当該保育所における適切な保育を行うことが困難となることその他のやむを得ない事由がある場合においては、当該保育所に入所する児童を公正な方法で選考することができる。
5 市町村は、第一項に規定する児童の保護者の保育所の選択及び保育所の適正な運営の確保に資するため、厚生労働省令の定めるところにより、その区域内における保育所の設置者、設備及び運営の状況その他の厚生労働省令の定める事項に関し情報の提供を行わなければならない。
Legal
System
Japan
is a civil law system, which raises a number of questions regarding the status
of laws and precedents. In, particular, the question as to the status of Supreme
Court precedents that were clearly negated by the decisions of the district and
higher courts in this case is at the fore. That is a matter of which my
attorney should have been firmly apprised; otherwise, her competence, as an
attorney, would be at issue. https://en.wikipedia.org/wiki/Precedent#Civil_law_systems
That
particular question arises due to the fact that a new act was promulgated by
the Japanese Diet to cover the administrative procedures addressed by the earlier
Supreme Court precedents and relating to out complaint. The Act at issue, once again,
is the Administrative Procedures Act (1993).
I’m
not able to answer that question solely by the use of online resources, as it
is such a fundamental distinction that it would be something learned in the
early stages of law school or the like and is not directly addressed as such in
the literature I've seen. On the other hand, there are still other clauses in
the relevant laws that would seem to have called for the case to have been
accepted, so I have to seek a third opinion on the matter.
The
closest legal precedent
The
precedent that encouraged me to seek out the services of an attorney after I
had discovered it and read an analysis of the verdict and relevant laws was a
case heard at the Osaka district court in 2002. The legal basis of the decision
was so solid that the city didn't even venture an appeal to the high court.
The
decision came nine years after the promulgation of the Administrative Procedure
Act, and one year after a high court decision in Tokyo on related matters.
The
Osaka court precedent (H14. 6.28 大阪地裁 平成10(行ウ)62等 損害賠償請求事件) in
question is listed on the court’s precedent database.
The
original research I’d read on the case has since been removed from its hosting
website, but was published in a legal journal.
東大阪市保育所入所保留処分国家賠償請求事件について
I will introduce passages from the analysis in conjunction with the presentation of the specifics of the case.
Other
online postings still maintained demonstrate the importance of the ruling.
The
Osaka ruling is discussed in papers by Japanese legal scholars, and set the
standard for municipalities across the country, as is demonstrated by the types
of evaluation criteria adopted by many of them subsequently.
Our
case, accordingly, originally focused primarily on violations of several points
of law set forth in the provisions of the Administrative Procedure Act, namely:
(Review Standards)
Article 5
(1) Administrative agencies shall
establish review standards.
(2) Administrative agencies, in establishing
review standards, shall make them as concrete as possible in light of the
nature of the particular permission, etc. in question.
(3) Except in cases of extraordinary
administrative inconvenience, administrative agencies shall make review
standards available to the public by means of posting them at the office which
is, pursuant to laws and regulations, in charge of receiving the subject
Applications or by some other appropriate method.
and
(Showing of Grounds)
Article 8 (1) Administrative agencies shall, in
cases where they render
Dispositions refusing the permission, etc. sought
by Applications, concurrently
show the grounds for the subject Disposition.
However, where either the
requirements provided by laws and regulations for
the permission, etc. or the
review standards that have been made available to
the public are clearly
specified in terms of quantitative indices or
other objective indices, and where
the fact that an Application does not conform to
these requirements or
standards can easily be seen from the contents of
the written application or
from its attached documents, it would be
sufficient to show the grounds for the
refusal only upon request of the applications.
The
case involved one other complaint related to the proviso of Article 24 item 1
of the Child Welfare Act. That should have been the most contentious matter of
the complaint, with the other points being so clearly in violation of the
relevant statutes as to represent instances of no-contest on the part of the
city.
Alas
(and me aghast), such was not to be the ruling of the court.
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