A Case of Soliciting to Falsify Evidence for an Alibi in One’s Own Case
(Sapporo District Court, November 6, 1998)[Hanrei-jiho No. 1659 p. 154］
［Facts］
The defendant, who was 17 years old at the time of the crime, had already been sentenced custody for a violation of the Road Trafｆｉ c Law (i.e., reckless driving in a group). He solicitedｆｉ ve of his friends to make a videotape which showed that the defendant was not at the scene at the time of the crime. He falsiｆｉ ed evidence for an alibi. His accomplices changed the time on the video recorder to coincide with the time the defendant committed the crime and thenｆｉ lmed him. As a result, they were falsifying evidence that could be used for an alibi and his sentence of custody was revoked. However, their efforts to falsify evidence were discovered. The defendant was then accused of soliciting the suppression of evidence (Article 104, 61, Criminal Law).
［Judgment］
The court recognized that the defendant’s act was soliciting the suppression of evidence. The court took his circumstances into consideration and sentenced the defendant to 1 year in prison with a 4 year suspended sentence.
［Comments］
This is a notorious case because it was widely reported in the mass media.
The issue in this case is whether cases under Juvenile Law are ‘criminal cases’ under Article 104, of the Criminal Code, and whether soliciting to falsify evidence in one’s own case can be punished as soliciting the suppression of evidence in Article 104 which states that an accomplice can be punished. Theｆｉ rst point can hardly be disputed. Regarding the second point, the precedents and the accepted theory approve of punishment for soliciting for suppression of evidence because such soliciting is an accessory to a crime. The court accepted this theory. However, the German (and Japanese) theory of causation, which says that the reason why complicity is punished is causation of crime through the principal act, does not go as far as to hold that one who can not be punished as principal is punished when he solicits an accomplice.
(K. ADACHI)
The Case of a Korean’s War Pension
(Osaka High Court, October 15, 1999)
［Facts］
The plaintiff, ”X” , is a Korean man. He was born in 1920 on the Korean Peninsula. He came to Japan at the age ofｆｉ ve. During World War II, ”X” was forced to serve with the Imperial Japanese Navy and he was injured in battle.
During the period of Japanese colonial rule over the Korean Peninsula, ”X” was a Japanese national. After the war, ”X” automatically became a South Korean national thereby losing his eligibility for a war pension that is paid to disabled Japanese war veterans and families of war victims. Therefore, ”X” sued in court and claimed that the nationality clause in the war pension law violated the constitutional guarantee of equality before the law (Article 14 of the Constitution) and Article 26 of the International Covenant on Civil and Political Rights. Therefore, ”X” claimed that the government should pay him a pension.
The Otsu District Court rejected his claim. ”X”ｆｉ led an appeal.
［Judgment］
The Osaka High Court rejected ”X’s” claim. The Court said that it was up to the Diet to decide what kind of pensions should be given to people who have lost Japanese nationality after the war. However, it admitted that Korean nationals who served with the Imperial Japanese Navy during the war faced discriminatory treatment when being denied pensions that are ordinarily paid to Japanese nationals. The Court also acknowledged that such treatment may be in violation of Article 14 of the Constitution, which provides for equality under the law, and Article 26 of the International Covenant on Civil and Political Rights.
［Comments］
This is theｆｉ rst case of a high court pointing to unconstitutionality in a lawsuit involving the war pension law. Legislators should follow this suggestion and also enact legislation in order to eliminate discriminatory treatment similar to this case.
Concerning this case, see ASAHI EVENING NEWS, October 16, 1999, page 1 ; THE DAILY YOMIURI, October 16, 1999, page 2 ; MAINICHI DAILY NEWS, October 17, 1999, page 14 ; THE JAPAN TIMES, October 17, 1999, page 2.
(K. EBIHARA)
The Case of Gender Discrimination Concerning Earned Wages
(Osaka District Court, Jul. 28. 1999) ［Roudou-Horitsu-junpou No. 1463 p. 65］
［Facts］
The female plaintiff, ”X” , graduated from a pharmaceutical university. In 1965, ”X” was employed by the defendant, pharmaceutical company ”Y” . In 1979, when ”X” was 36 years old, she was singled out and became theｆｉ rst female employee at ”Y” to be promoted to the position of product manager. She remained at this post until her retirement in 1995. Although ”X” always received above average performance evaluations, ”X’s” monthly salary was about 100,000 yen less than that of her male colleagues.
This was the case despite the fact that her male colleagues had equal seniority, educational background and working conditions.
”X” determined that this wage discrimination took place over a 16-year period. ”X” was 52 when she retired from ”Y” in 1995. ”X” attested that though she performed work equal in quality and quantity to her male colleaguse, there was a striking difference in the wages and treatment related to promotions. She argued that these circumstances were contrary to Articles 4 of the Labor Standard Law. The Labor Standard Law prescribes the principle of equal wages for males and females for performing work of equal value.
［Judgments］
The Osaka District Court ruled in favor of ”X” . The court’s reasoning is as follows :
Since 1979, ”X” was promoted to the position of product manager. During this time, ”X” performed work duties equivalent to those of her male colleagues who also have equal seniority, educational backgrounds and working conditions. Since ”Y” charged ”X” with the responsibility of performing the quality of work equivalent to that of her male colleagues, ”Y” should have paid ”X” equal wages. Therefore, the payment differentiation constitutes sexual discrimination. ”Y” had a duty to correct this practice but failed to do so. Since ”Y” behaved illegally, ”Y” should compensate ”X” for her losses for at least a ten year period due to gender discrimination. In conclusion, ”Y” should pay ”X” for damages. This judgment is in the amount of nearly 30 million yen.
［Comments］
To date, this is one of eighteen lawsuits related to gender discrimination and earned wages in Japan. Since ”X’s” working conditions were identical to her male colleaguse in this case, it is evident that the difference in wages was the result of gender discrimination. However, it is often very difｆｉ cult to prove gender discrimination in such a case because the system involving wage increases based on merit is complicated and non-transparent. In view of this case, employers will be expected to revise their current wage systems especially concerning gender discrimination.
This case is important because the duty of providing compensation for gender discrimination over a long period time (e.g., ten years) has been imposed on employers. On the other hand, it is doubtful that this judgment did not require ”Y” to pay more than 90％ of ”X’s” male counterpart’s wages since ”Y” has such discretion and it cannot be sexual discrimination.
In conclusion, Y did not appeal to a higher court, and this Judgment was conｆｉ rmed.
(K. EBIHARA)
The Case of the Uncertain Meaning of the term” harmful substance in the Food Hygiene Law, Art. 4 (2)
(Supreme Court, P. B. 1 ; July 10, 1998) Hanrei-jiho No. 1651, p. 152
［Facts］
The defendant, who was a wholesaler, had stored and sold a type ofｆｉ sh
called ”aburasokomutsu” . The defendant is accused of violating the Food Hygiene Law, Art. 4 (2), as it pertains to the sale and storage of food and the term” harmful substance found in this article. The defendant claimed
that ”aburasokomutsu” is a harmless food, and that charging him with violation of Article 4 (2) of the Food Hygiene Law is against Article 31 of the Constitution (which guarantees due process of law). He maintained his innocence based on the fact that the meaning of the term” harmful substance found in the Food Hygiene Law is ambiguous.
［Judgment］
The Supreme Court afｆｉ rmed the High Court’sｆｉ nding of fact and the decision, and it denied the appeal. The Court ruled as follows : As to unconstitutionality, it cannot be said that the meaning of the
term ”harmful substance” in the Food Hygiene Law is ambiguous. Despite this, the original judgment
that ”aburasokomutsu” comes under food which is considered to be a ”harmful substance” in the Food Hygiene Law Art. 4 (2) is correct.
［Comments］
The judgment in this case revolved around the issue of whether or not the
substance ”aburasokomutsu” is considered to be a food which is a ”harmful substance” . The most important issue is that when it comes to the uncertainty of the meaning of the
term ”harmful” found in Article 4 of the Food Hygiene Law, the ”principle of nulla poena sine lege” takes precedence over Article 31 of the Constitution. According to the precedent (Supreme Court, G. B. ; September 10, 1975, Hanrei-jiho No. 787), the original judgment (Tokyo High Ct. ; Oct. 31, 1995, Hanrei-jiho No. 1566) examines this point in detail. Relatively speaking, however, this judgment is a simple one. Today, the
so-called ”Meikakusei-no” theory is usually acknowledged as a corollary which is derived from the ‘principle of nulla poena sine lege’ (a principle that crime and penalty must be deｆｉ ned by law). A criminal statute with ambiguous language ignores the aforementioned principle. When we consider the
word ”harmful” as it pertains to this case, it should be asked whether or not the punishment in this case is justiｆｉ ed.
(H. ESUMI)
The Case of the Mother Who Did Not prevent Her Common-law husband from Punishing and Killing Her Innocent Child
(Kushiro Dist. Court ; Feb. 12, 1999)Hanrei-jiho No. 1675, P. 148
［Facts］
The defendant,々” , is a mother of、” , the victim. Since June of 1997,々” lived with her partner,〆” , without being legally married. However, their union was recognized as a common-law marriage and〆” often punished々”’s children. On November 20 1997,〆” punished、” using viorence, injuring the child and causing death. In spite of being his mother and having an obligation to prevent her children from the viorence,々” did not protect her child. By omission, she aided〆” when he killed her child. She was charged with aiding in the infliction of a bodily injury resulting in death.
［Judgements］
The Kushiro District Court found々” not guilty. The main points of the reasoning are as follows : When persons are accused of crimes by omission,
1. There must be an obligation of comission,
2. It must be possibile to prevent the occurence of the crime.
3. The obligation of comission must be easily performed.
In this case,々” could not have easily prevented the crime.
［Comments］
This is an important case, because it schows the necessary requirements of a crime of omission. And, I think, this is a interesting case, because it is related to the requirements of the offence of aiding and abetting a crime.
(M. HIRAYAMA)
The Case Disputing Constitutionality of the Liquor License System ［X v. Japan］
(Sup. Ct., P. B. 3, March 24, 1998) Hanrei-jiho No. 1658 p. 188
［Facts］
The defendant owned a liquor store in Shizuoka City from March 1982 to March 1983. During this period, he sold liquor without a necessary liquor license. Therefore, he was prosecuted for selling liquor without a liquor license.
The defense counsel claimed as follows ; Arts. 9(1) and 56(1)(1) of the Liquor Tax Act, which provide for the liquor license system and the penalties against violation of the system, is not compatible with Art. 22(1) of the Japanese Constitution, which provides
for ”the freedom to choose one’s occupation” .
The claim was rejected by both the Shizuoka District Court and the Tokyo High Court, and the defendant appealed to the Supreme Court.
［Judgment］
The Supreme Court denied the appeal. The reasoning is as follows ; The liquor license system, which was enforced in 1938, was once necessary and reasonable in view of the large proportion of liquor taxes to national taxes. The objective of this system is the proper and certain collection of liquor taxes. This system is still necessary and reasonable in view of the proportion of liquor taxes to national taxes today. Therefore, it cannot be said that Arts. 9(1) and 56(1)(1) of the Liquor Tax Act, which provide for the liquor license system and the penalties against violation of the system, contravene Art. 22(1) of the Japanese Constitution.
［Comments］
The main issue in this case is whether Arts. 9(1) and 56(1)(1) of the Liquor Tax Act are compatible with Art. 22(1) of the Japanese Constitution. This court held that Arts. 9(1) and 56(1)(1) of the Liquor Tax Act was compatible with Art. 22(1) of the Japanese Constitution. This trend has continued in Japanese courts including the Supreme Court.
Nevertheless, it seems that we must reconsider the necessity and rationale of the liquor license system in the recent trend towards deregulation.
(S. IDE)
The Case of the Infringement of Privacy and Damages for Mental Suffering
(Tokyo District Court, January 21, 1998) ［Hanrei-jiho 1646, p. 102.］
［Facts］
A female high school teacher, ”X” , asked Nippon Telegraph and Telephone, Inc. (NTT) ”Y” , not to list her telephone number in the telephone directory after she moved and had it changed. In spite of her expressed intention, ”Y” , published her name, her telephone number and her address in the telephone directory of Setagaya Ward in Tokyo.
They also published this information in the private directory of 23 wards in Tokyo. In response to ”X’s” complaint, ”Y” neglected to take any measures to rectify the problem such as collecting the directories. ”X” demanded that ”Y” send an insert amending the directory, appealed to ”Y” to discard the telephone directories and demanded that ”Y” pay 3 million yen in damages for mental pain because of the infringement of privacy.
［Judgment］
Tokyo District Court ordered ”Y” to pay 100 thousand yen in damages for mental suffering but rejected the other claims like sending amendments, discarding the directories, etc. The Court indicated the requirements related to protecting the privacy of someone who does not wish to have their name, telephone number and address published in the telephone directory. They are as follows :
(1) Matters published concern one’s private life, or are generally perceived as such.
(2) The matters should not be published according to the standard of the average
person.
(3) The matters are not known to people in general.
The Court afｆｉ rmed that the above three requirements have been satisｆｉ ed in this case.
The Court restricted ”X’s” claims to 100 thousand yen given the fact that no material damages occurred, that ”Y” did not intend the consequences of his act, that ”Y” put seals on the telephone directories which had not yet been distributed and replaced the directories at public telephones with new ones.
［Comments］
The meaning of the term, ”right of privacy” , is not necessarily self-evident in Japanese law. In this case, the Judge used the
term ”interest of privacy” instead of ”right to privacy” . In general, there are opposing views regarding whether certain interests should be legally protected or not. Based on social requirements, some of these interests may be established as rights. On the other had, it is true that our society requires the protection of citizen’s privacy. This case is signiｆｉ cant as it is a case about the establishment of
the ”right of privacy”
which is currently in transition.
(H. ISHIBASHI)
The Case Concerning the Claims to Prohibit Night Flights at Yokota Base
(Tokyo High Court ; October 25, 1998) ［Hanrei-jiho No. 1665, p. 64］
［Facts］
This case is on appeal and it concerns a claim against the United States of America as defendant. We call this the case concerning a claim to prohibit nightflights at Yokota Base.
In this case, the plaintiffs, who live around Yokota Air Base, made a claim against Japan and the United States to prohibit them fromflying aircraft at night and early in the morning. It also concerns compensation for damages for the past and the future.
In theｆｉ rst instance, the Tokyo District Court dismissed the plaintiff’s claims. The reasoning was that following the decision of the Court of Cassation in 1928, in which it is said that the absolute immunity doctrine was adopted, the jurisdiction of Japan did not extend to the defendant in this case. The plaintiffs appealed to the Tokyo High Court.
［Judgment］
The Court rejected the appeal. The main points of the judgment are as follows :
(1) Article 18(5) of Agreement under Article VI of the Treaty of Mutual Cooperation and Security between Japan and the United States of America, regarding Facilities and Areas and the Status of United States Armed Forces in Japan provides that concerning claims (with the exception of contractual claims, etc.) arising out of acts or omissions of members or employees of the United States armed forces done in the performance of their ofｆｉ cial duty, or out of any other act, omission or occurrence for which the United States armed forces are legally responsible, on behalf of United States, Japan shall settle the claims by methods including adjudication and make payment if money should be paid, etc.
Because of this Article, if Japanese people were injured from unlawful acts of members or employees of the United States armed forces done in the performance of ofｆｉ cial duty and if they brought an action against the United States to the courts of Japan, the court has no jurisdiction over the United States.
(2) Article 18(5) provides for an action for damages arising out of unlawful acts done in the performance of ofｆｉ cial duties, but there is no Article expressly providing for an action to demand that they be stopped. However, by analogy, the object of the provision that provides for jurisdictional exemption concerning the right to claim compensation for damages should apply to the action to demand that it be stopped.
(3) Needless to say, as the plaintiffs pointed out, some assert the opinion that the decision of the Court of Cassation in 1928, which adopted what we call the absolute immunity doctrine, lost its value as a precedent through changes in the international situation. Recently, almost all states, except a few socialist states, adopted the restrictive immunity doctrine. The plaintiffs and others also alleged it improper that the original judgment recognized the aforementioned decision of the Court of Cassation and its signiｆｉ cance as precedent and followed the decision in spite of such an international situation. The Court considers that this plaintiffs’ allegation is worthy of attention. However, as held above, even if the Court adopts the restrictive immunity doctrine, concerning these claims, the Court can not exercise its jurisdiction over the United States because of Article 18(5) of the Agreement.
［Comments］
The main issue in this case is whether a court in Japan may exercise its jurisdiction over the United States. The Tokyo High Court rejected the appeal because of lack of jurisdiction as did the Tokyo District Court, but the reasoning was that the United States is exempted from the jurisdiction of the courts in Japan because of Article 18(5) of the Agreement, which was different from the one in the original judgment.
This reasoning leaves room for doubt, but it is noteworthy that, although in obiter dicta, the Court dealt with the problem of state immunity in some detail. The Court, for instance, held that there is a strong opinion that the decision of the Court of Cassation in 1928 lost its value as a precedent, so this judgment hints that the position of Court in Japan on state immunity moved from the absolute immunity doctrine to the restrictive immunity doctrine. The plaintiffs appealed to the Supreme Court, so the judgment of the Supreme Court is expected.
(S. KAWAGUCHI)
The Case Regarding the Invalid Claim of Electing Members of the House of Councillors
(Supreme Court, Sept. 2, 1998)[ Hanrei-jiho No. 1653, p. 31]
Key Words :
equal right to vote, equal number of voters, electoral system, electoral district, House of Councillors
［Fact］
The electoral system of the House of Councillors is as follows : a quorum is 252 members. The electoral districts of each prefecture elect 152 members of the quorum. The remaining members are elected by the restrictive listing method using the proportional representation system, which is based on lists submitted by political parties. In every electoral district, even-members of the members are distributed because Article 46 of the Constitution regulates reelection for half of the members every 3 years.
On July 23, 1995, the regular election for members of the House of Councillors was carried out based on this system. After this election, the plaintiffs, who were members of the Tokyo district, commenced a suit in the Tokyo High Court to declare this election invalid. They did so because they claimed that the provision regarding the distribution of the quorum in the Public Ofｆｉ ces Election Law, which was revised in 1994, is invalid due to a breach of Article 14 of the Constitution.
On February 6, 1998, the Tokyo High Court dismissed the claim of the plaintiffs because they determined that this provision was not a breach of the Constitution (Hanrei-jiho No. 1623 p. 75). The plaintiffs objected to the judgment of the Tokyo High Court and they appealed to the Supreme Court.
［Judgments］
The appeal is dismissed.
1. (A) The provision regarding the distribution of the quorum in the Public Ofｆｉ ces Election Law was not in conflict with the Constitution, not only because it causes or expands the imbalance between the members of the voters in each electoral district or population per member. If the Court decides that the prescribed number of voters in the electoral system has exceeded the number allowed by the National Diet, it will in the end be considered a violation of the Constitution.
(B) The electoral system of the House of Councillors is intended to ascribe special factors to the essential substance or functions by means of being different from the electoral system of the House of Representatives, because the Constitution adopts the bicameral system. This system is one of the methods that reflects public opinion as pronounced by the National Diet. Therefore, adopting this system does not exceed the number if voters allowed by the National Diet.
2. On September 11, 1997, the Supreme Court decided that the provision regarding the distribution of the quorum in the Public Ofｆｉ ces Election Law exceeded the number of voters to such a degree that it violated the Constitution. Then, the National Diet revised this provision without reforming the electoral system. As a result, this revision adjusted the balance of population per member.
3. In the electoral system, infringement of the number of voters allowed by voters within every electoral district is inevitable. This revision can be regarded as a rational legislative policy. By reducing the imbalance of population by this revision for this election, this provision can not be regarded as unconstitutional.
(Dissenting Opinion)
A. The factor of prefectural representation in the electoral system causes an imbalance in the number of voters.
B. The Constitution demands an equal number of voters but it does not require prefectural representation.
C. Therefore, the National Diet should consider a small imbalance in the number of voters as a possibility.
［Comments］
Firstly, this judgment held that the constitutionality of the provision related to the distribution of members of the House of Councillors was decided according to the precedents related to the invalid election of members of the House of Representatives. With the exception of this point, this judgment is consistent with past Supreme Court judgments related to the invalid election of members of the House of Councillors.
Secondly, compared with judicial precedents, there are various opinions in the literature. However, all of them criticize the point as follows : the members of both Houses are elected to represent all the people, but equal number of voters in the electoral system of the House of Councillors and that of the House of Representatives is treated as a separate manner. It can be said that the Supreme Court dose not provide clear logic for the separate handling of this matter until now. It is expected that discussion of this issue will continue.
(M. ODA)
The Case Concerning an Appeal by a Korean Residing in Japan, a Former Army Civilian Employee, for Withdrawal of the Measure Dismissing the Application for the Handicapped Person Pension and for Compensation for Damages
(Osaka High Court, Oct. 15, 1999)
［Fact］
The plaintiff is a Korean who resides in Japan. He applied for the Handicapped Person Pension on the basis of the
Senshoubyoushasenbotsushaizoku-touengo-Ho (hereafter referred to as Engo-Ho) which has been in force since 1952. He applied for this pension because he was injured whileｆｉ ghting on the front lines with the Japanese Army in World War II.
The application was dismissed because Engo-Ho did not apply to the plaintiff because he did not have Japanese nationality.
Therefore, the plaintiff made a claim against the Minister of Health and Welfare and the State for the withdrawal of the Engo- Ho measure requiring Japanese nationality and for compensation for damages concerning the omission of the legislation to correct the nationality clause (or Koseki Clause) on the basis of the Kokkabaishou- Ho. The Koseki Clause in the Engo- Ho had temporarily provided that it should not be applied to persons who came from the former Japanese colonies (including Korea) and the plaintiff and the defendant made the following respective arguments :
(1) The Engo- Ho had not been provisionally applied to Koreans residing in Japan until diplomatic negotiations between Japan and Korea addresses the problem related to their treatment.
(2) From the beginning, the Engo- Ho was not to be applied to Koreans residing in Japan.
As to the different treatment on the basis of Japanese nationality in the Engo- Ho, the plaintiff and the defendant made the following respective arguments :
(1) The purpose of the Engo- Ho is to compensate military service personnel forｆｉ ghting on the front lines with the Japanese Army. This treatment goes against the equality before the law and the prohibition of discrimination as are provided in Article 14 of the Constitution of Japan, Article 26 of the International Covenant on Civil and Political Rights (hereafter referred to as Covenant B which has been in force since 1979) and Article 2 of the International Covenant on Economic, Social and Cultural Rights (hereafter referred to as Covenant A which has been in force since 1979).
(2) Since the legislature has broad discretion concerning the compensation for war damage and the Engo- Ho is a type of social security, the treatment was within the limits of the discretion.
［Judgment］
The Court rejected the appeal. The highlights of the judgment are as follows :
(1) The reason that the Engo- Ho has not been applied to persons who have been outside the application of the Koseki Clause until a certain time (for example, to resolve the problem through diplomatic negotiations) was not to provisionally limit the application of the Engo- Ho, but to originally terminate the compensation for the Koreans residing in Japan under the Engo- Ho. Therefore, at the time when the legislation to correct the Koseki Clause had not yet been passed, the plaintiff’s claim can not be permitted because he does not have Japanese nationality.
(2) The legislator’s discretion concerning the compensation for war damage can not, in itself, justify the different treatment on the basis of Japanese nationality. Whether the compensation should be made or not depends on the criterion related to military service. Therefore, there is room for doubt that the Engo- Ho violated Article 14 of the Constitution of Japan. However, it can not necessarily be held that the Engo- Ho made an unreasonable distinction considering the situation in which the Engo- Ho was passed.
(3) As the result of the conclusion of the Nikkanseikyukenkyoutei which has been in force since 1965, the problems concerning the right to make claims between Japanese people and Korean people were considered to be completely andｆｉ nally resolved and the Koreans residing in Japan could not be compensated neither by Japan nor by Korea. Nonetheless, the Koreans were at a remarkable disadvantage compared with persons who have Japanese nationality. However, the legislature did not take the facts into account and did not address this issue. Therefore, there is room to doubt whether such an omission violated Article 14 of the Constitution of Japan.
(4) As to Article 26 of Covenant B, which Japan ratiｆｉ ed, it can be directly applicable to the cases in question in Japanese Courts. (On the other hand, Article 2 of Covenant A can not be directly applicable.) Since the different treatment on the basis of Japanese nationality is not compatible with the Article, there is room for doubt that leaving the nationality Clause (or Koseki Clause) alone violated the Article.
(5) The omission of the legislation in the Kokkabaishou- Ho falls under the exceptional cases that the omission can be considered to have deviated from the legislative discretion of the Diet. The legislation of the Engo- Ho had the reasonable ground of the different treatment on the basis of Japanese nationality, and leaving the Engo- Ho alone after the legislation is reasonable considering its character of social security. Therefore, it can not be necessarily held that the legislature left the Engo- Ho alone recognizing that it categorically violated Article 14 of the Constitution of Japan and Article 26 of Covenant B. The legislature is required to adapt the Engo- Ho to the Constitution of Japan and Covenant Bas soon as possible.
［Comments］
The most noticeable points in this judgment are that a Japanese High Court, for theｆｉ rst time, referred to” room for doubt of unconstitutionality in the problem of the postwar compensation for the Koreans residing in Japan, conｆｉ rmed the direct applicability of Article 26 of Covenant B, and examined the content of the Article in the context of this case in detail.
In this respect, it seems to me that the Case Law of Human Rights Committee (especially the Gueye Case, 1985) considerably influenced this judgment. Namely, the criterion that the compensation should be made not on the basis of nationality but military service is, as Professor Tokugawa formerly pointed out (2 Ritsumeikanhougaku 1994, No. 234, p. 271), presents a contrast to the approach taken by the Japanese Courts. The Court seemed to struggle in trying to reconcile these different approach. On the one hand, the Court compared the situation in which the Engo- Ho was legislated with the situation after the legislation in (1), (2), (3) and (4), on the other hand, it held that the legislature can not be considered to have deviated from its discretion emphasizing the character of social security of the Engo- Ho in (5).
Thus, this judgment certainly is signiｆｉ cant in international human rights law in Japan, but it still does not transcend the limits of the approach ever taken by the Japanese Courts.
(K. UMEHARA)
A Case of Citizen Arrest and the Question of Necessary and Appropriate Force
(Tokyo High Court ; March 11, 1998) (1999) ［1660 Hanrei-Jiho 155］
［Facts］
X , who rode a bike, kicked the car of the accused which had stopped at a crossing, and ”X”fled the scene. When the accused chased and arrested ”X” , he injured ”X” . Consequently, ”X” required two weeks of medical treatment.
［Judgment］
If a police ofｆｉ cer or a citizen is resisted by a criminal in a situation in which he was trying to arrest someone in the act of committing an offense, he can use force so long as it is deemed necessary and appropriate for an arrest when viewed from a common sense perspective in light of the situation leading up to the arrest. If the use of force is against the Criminal Law, he should not be punished under s. 35 of the Criminal Law. The present case is within the limits of necessary and appropriate measures taken in light of common sense.
［Comments］
The use of force following an arrest of an individual in the act of committing an offense under s. 213 of the Criminal Procedure Law is possible so long as the measures taken are deemed necessary and appropriate for an arrest from a common sense perspective in light of the situation leading up to the arrest. However, the concrete limit of the use of force is judged on an individual basis.
The speciｆｉ c factors to consider in such a case are the degree and manner of resistance by the criminal and the degree and manner of the use of force of a person who is doing the arresting. One must also consider the degree and manner of the crime, existence of offensive weapons, a difference of physique between a criminal and a person who is doing the arresting, and the number of criminals and persons who are doing the arresting.
If a police ofｆｉ cer or a citizen tries to arrest someone in the act of committing an offense, he can use force so long as it is deemed necessary and appropriate for an arrest from the perspective of common sense. However, it is a problem whether the concrete degree is difference between a police ofｆｉ cer and a citizen. Some people think that the difference doesn’t matter. Other people think that the permission of use of force of police ofｆｉ cers is judged more strictly because they are taught technical knowledge about arrests.
(N. WADA)
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