Though this case spans separate ‘hearings’ and corresponding decisions at the respective levels of district, high and supreme courts, the first matter(s) of importance relate to the decision by the Supreme Court. These matters are unclear to me at this point, as they’ve yet to be explained by my attorney. So I’m going to present a few pertinent facts and describe the point that seems most problematic with the decision at this point.
First, here is a translation of the brief text of the ruling of the Supreme Court.
The
Supreme Court dismissed the case, refusing to examine it on the merits, giving
the following reasons.
1. The
Civil Procedure Code permits a civil suit to be appealed to the Supreme Court only in the case that the criteria specified in Article 312 Item
1 or Item 2 are fulfilled. The petitions pertaining to the present suit claim grounds of unconstitutionality and deficiency or discrepancies in the reasons, but the substance of the arguments upon which said claims are based pertains either to the misinterpretation of factual circumstances or to mere violations of statutory law.
2. It
is not recognized that the present case merits being examined under the
provisions of Article 318 Item 1 of the Civil Procedure Code.
Second, here are the (relevant) clauses in the Civil Procedure Code referred to in the ruling.
(Reasons for Final Appeal)
Article 312
(1) A final appeal may be filed by reason that a judgment contains a misconstruction
of the Constitution or any other violation of the Constitution.
(2) A final appeal may also be filed by reason of the existence of any of
the
following grounds…:
(vi) The judgment lacks reasons, or the reasons attached to the judgment
are inconsistent.
Article 318 (1) With regard to a case in which the judgment in prior
instance
contains a determination that is inconsistent with precedents rendered by
the Supreme Court (or precedents rendered by the former Supreme Court or those rendered
by high courts as the final appellate court or the court of second instance, if
there are no precedents rendered by the Supreme Court) or any other case in
which the judgment in prior instance is found to involve material matters
concerning the construction of laws and regulations, where the court with which
a final appeal shall be filed is the Supreme Court, the Supreme Court, upon
petition, by an order, may accept such case as the final appellate court.
Discussion
Aside from
the fact that I disagree with the court’s findings related to our presentation
of the violations of the Constitution, in addition to the fact that there are serious
inconsistencies in the decision the high court, there is a more concrete reason
to object to the ruling of the 3rd Petty Bench of the Supreme Court.
That pertains to Article 318 Item 1. The petition referred to three Supreme
Court precedents that we asserted were violated. The judgment fails to even
acknowledge that there is an issue with any of the precedents, yet there are clearly
and indisputably issues.
One of the
basis for making such an assertion is that with regard to the legal points
described in two of the precedents, that is, to what is referred to as “notice”
in legal due process in the USA, the court of the first instance (the district
court) found the city to be in violation of the law, but refused to impose a
penalty and recognize our claim on the specious rationale that my rights had
not been violated. The court of the second instance (the high court), reversed
the district court’s decision and claimed that the city was not in violation,
adopting a rationale that the reason given in the notice for such an
administrative procedure could be expected to be (somewhat) abstract. The fact
is that the reason was no more than a simple abstract statement to the fact
that the application was considered and rejected, without the level of
specificity required by the law, and in direct contradiction to the passage
from the Supreme Court precedent presented in the following statement from our
petition translated below.
In the petitions we filed with
the Supreme Court, the following assertion with respect to the abovementioned
Supreme Court precedent is made.
そのため、要求される付記の内容及び程度については、「特段の埋由のないかぎり、いかなる事実関係に基づきいかなる法規を適用して当該処分がされたのかを、処分の相手方においてその記載自体から了知しうるものでなければならず、単に抽象的に処分の根拠規定を示すだけでは、それによって当該規定の適用の原因となった具体的事実関係をも当然に知りうるような例外の場合を除いては、法の要求する付記として十分でない」（昭和49年4月2日判決民集28巻3号40 5ページ）とする。
Translation:
“Accordingly, in the precedent established by the Supreme Court decision of
April 2, 1974 (Civil, scroll 28, No. 3, page 5), with regard to the reason to
be appended to notification of an unfavorable administrative disposition, the
ruling held that the content and extent of the appended reason was
characterized in that “the appended reason must, provided that there are no
exceptionally extenuating administrative circumstances, set forth the specific factual situation as well as the
specific provisions of law upon which the decision for the disposition was
based; moreover, a simple abstract statement of the basic provision upon which
the decision for the disposition was made, excepting the exceptional case that
the specific factual situation causing the application of said provision would
thereby be made readily apparent, would not be a reason adequate to that
required by the law”.
Supreme Court
Precedents contradicted by the rulings of the district and high courts
Three
Supreme Court precedents were cited in petition, all in relation to ‘due
process’ issues https://en.wikipedia.org/wiki/Due_process
(Article 31 of the Constitution of Japan; US, https://en.wikipedia.org/wiki/Due_Process_Clause)
vis-à-vis the Administrative Procedures Act, two of which are listed on the
court’s precedent database, which is made available to the public:
昭和46年10月28日判決民集25巻7号1037頁等
昭和38
年5月31日判決民集17巻4号617ペジ
Meanwhile, the following
precedent is not listed on the court’s precedent database.
昭和49年4月2日 判決民集28巻3号405ペジ
One
Supreme Court precedent was not cited in petition (but the point implied as
obvious per the letter of the law (statute)):
平成21年11月26日判決民集第63巻9号2124頁
A Supreme
Court precedent is binding on subsequent court rulings related to the same type
of matter. Our case is a “same type of matter”—though that can be a point of
contention. Furthermore, approximately the same language from the above translation
(i.e., of the precedent) appears in the original precedent (Osaka district
court 2002), which was incorporated by reference in our court filings in the
trial at the Kyoto district court. Moreover, said language was also used in the
decision of the Tokyo high court in 2001 that set the precedent for the Osaka
district court ruling. This is not un-tread ground in the Japanese judicial
system.
Here, in
refusing to examine the assertions set forth in our petition, the Supreme Court
appears to have violated the Court Act. That is to say, in the case of a
violation of a Supreme Court precedent, the full bench (all fifteen justices),
not a petty bench, must issue the decision. The relevant clause of the law is
as follows.
(Examination of the Full Bench and Petty
Bench)
Article 10 Regulations
of the Supreme Court shall determine which cases are
to be handled by full bench and which by petty bench; provided,
however, that in the following
instances, a petty bench may not give a judicial decision
(iii) Cases where an opinion concerning interpretation and application of the Constitution or of
any other laws and regulations is contrary to that of a judicial
decision previously rendered by the Supreme Court.
Here are
English language pages of the Supreme Court.
The
justices:
The justices
of the 3rd Petty Bench
No comments:
Post a Comment