SCOJ 2005 No.1977 - Supreme Court Decision

Supreme Court Decision

The Court's three main holdings were as follows:

(1) "...Directive No. 402...without any explicit legal ground...deprives an atomic bomb survivor of a legal status...only by reason of his/her departure from Japan, and furthermore, it has a serious influence on atomic bomb survivors. Considering these, when preparing and issuing Directive No. 402, the appellant should have fully investigated and examined whether or not there was any legal ground for such construction or treatment...if the appellant did so, we can find that it would be sufficiently possible for the appellant to have recognized illegality of...Directive No. 402. Yet, the appellant did not try to clearly explain the very circumstances where Directive No. 402 was prepared and issued, and even by examining the whole evidence of this case, we still cannot find that the appellant fully investigated or considered this issue....We should find the appellant, by doing so, to have breached its basic official duty of construing statutes faithfully, or at least neglected such duty. Consequently, in accordance with Article 1, para.1 of the Act on State Liability for Compensation, the appellant is liable to compensate for damage that it caused to the plaintiff by preparing and issuing Directive No. 402, which is illegal, and continuing to take the administrative treatment resulting in forfeiture of right based on the directive.

(2) The plaintiffs, while being subject to unfair discrimination against atomic bomb survivors, harbored various feelings such as worries about their health and living, which were growing due to unavailability of proper medical treatment, and anger and resentment for being forced into such circumstances and left without receiving any relief because they were residing in South Korea. At that time, triggered by the judgment of A's Suit, a sign of hope appeared for the plaintiffs to receive relief under the Two Acts for Atomic Bomb Survivors, but just then, Directive No. 402 was prepared and issued, and the administrative practice based on this directive was continued after that. This made the plaintiffs feel further stronger disappointment and anger, a sense of being discriminated, and dissatisfaction, and also feeling irritated by their aging, the plaintiffs at last had no choice but to file this suit.

(3) This case is an extraordinary one in which with regard to relief for atomic bomb survivors who suffered unprecedented serious damage caused by the atomic bombing, the appellant prepared and issued the directive based on an erroneous construction of the relevant statutes. In light of the seriousness, magnitude, and particular nature of the mental distress that the plaintiffs suffered before filing this suit, it is appropriate to grant each of them one million yen as compensation for their mental distress.