SCOJ 2005 No.1977 - Dissent

Dissent

Justice Kainaka agreed with the Majority that:

• "Directive No. 402...should inevitably be deemed to be based on an illegal construction of the Three Acts for Atomic Bomb Survivors."

However, he opined that:

• the Director-General of the Public Health Bureau of the Ministry of Health and Welfare's interpretation of the law, as embodied in Directive No. 402, did not lack reasonable grounds.

"government committee members, etc. consistently stated that shall not apply to 'atomic bomb survivors' residing overseas, and this was also the intention of the legislator."

• the Director-General's enforcement of Directive No. 402 did not constitute negligence under the Act on State Liability for Compensation.

"Basically, in order to say that a construction of a statute based on certain legal grounds has lost such ground at a certain point of time, there must be a new development that would affect the construction, such as revision to the statute or the court's rulings showing a clearly opposite construction....no such development seems to have occurred, and therefore the said construction cannot be deemed to have lost its legal grounds."

"...where there is a conflict of views over how to construe a statute...and both views have reasonable grounds, if a public officer performs public duties while relying on either view that he/she considers justifiable, it is inappropriate to immediately find the public officer to have been negligent in doing so only because his/her performance of duties is later judged to be illegal."

• The plaintiffs were not entitled to damages for emotional distress.

"In general, an act cannot be deemed to be illegal under tort law unless it infringes any legally protected interest, and even if an act committed by the State or its official in charge has hurt a person's feelings...such person cannot immediately claim damages by alleging that his/her interest has been infringed thereby."