How Does Japanese Law Regulate Public-Private Partnerships for "Public Facilities" Like Theaters and Community Centers?

Across Japan, many "public facilities" (公の施設, ōyake no shisetsu) such as concert halls, community centers, parks, and museums are no longer directly operated by local governments. Instead, they are managed by private entities—including for-profit corporations—under a framework known as the Designated Manager System (指定管理者制度, shitei kanrisha seido). This system, a cornerstone of modern Japanese public-private partnerships, allows municipalities to leverage private-sector efficiency and expertise in the delivery of public services.

However, this delegation of authority raises critical legal questions. When a private entity, acting as a designated manager, makes a decision that traditionally belonged to the government—such as denying a citizen group a permit to use a public hall—what legal standards govern that decision? And what recourse does the affected group have?

This article explores these questions through a case study involving a cultural group denied access to a public hall. It will dissect the legal framework of the Designated Manager System, the scope of the manager's discretion, and the powerful judicial remedies, including provisional orders, available to those who believe their rights have been unlawfully infringed.

Understanding the Designated Manager System

The Designated Manager System was introduced by a 2003 amendment to Japan’s Local Autonomy Act (地方自治法, Chihō Jichi Hō). It replaced a more restrictive system that only allowed management of public facilities to be entrusted to public-interest corporations or other public bodies.

Key Features of the System:

• Broad Eligibility: Under Article 244-2 of the Local Autonomy Act, local governments can designate not only non-profits but also private, for-profit corporations and other entities as managers. This was a significant change intended to foster competition and improve the quality of public services.
• Delegation of Authority: A local ordinance can empower the designated manager to perform administrative functions in its own name. The most significant of these is the power to grant or deny permits for the use of the facility.
• The Private Entity as "Administrative Agency": When a designated manager exercises this permit-granting authority, it is legally considered an "administrative agency" (行政庁, gyōsei chō). Its decisions, such as a permit denial, are classified as "administrative dispositions" (行政処分, gyōsei shobun), making them subject to the rules of administrative law and judicial review.

While this system introduces private management, the facility remains a "public facility" dedicated to resident welfare. Consequently, the manager's decisions are not purely commercial; they are constrained by constitutional principles and the overarching public service mission of the facility.

A Case Study: The Denial of a Performance Permit

To see how these principles apply in practice, consider the following case, based on an actual court decision from the Okayama District Court on October 15, 2007.

The Facts

A cultural group dedicated to promoting international friendship through music and dance applied for a one-day permit to hold a large-scale performance at a city-owned public hall. The hall was managed by a designated manager, a private foundation. The group had a history of holding successful performances in the city and neighboring municipalities.

However, their recent performances had attracted protests from right-wing nationalist groups who opposed the cultural group's mission. While these protests involved loud demonstrations with sound trucks, they had been successfully managed by local police, and the events proceeded without major incident.

The designated manager denied the permit. The official reason stated that, based on the protests at previous events, there was a high probability of similar disruptions. These disruptions, the manager argued, would create a disturbance for other tenants in the multi-use building where the hall was located, pose a risk to public safety, and therefore "hinder the management" of the hall, a ground for denial under the local ordinance.

The group was left in a difficult position. The performance was planned for a specific, meaningful anniversary. Alternative venues with the necessary stage equipment were unavailable on that date. A standard lawsuit could take months or years, by which time the event date would have long passed, and any legal victory would be meaningless. The group needed a way to get into the hall on the day they had planned.

Legal Remedies: Securing Timely and Effective Relief

When faced with a permit denial from a designated manager, an applicant has two main legal paths: an administrative appeal and administrative litigation.

1. Administrative Appeal (不服申立て, Fufuku Mōshitate)

Article 244-4 of the Local Autonomy Act provides a special administrative appeal process. The applicant can file a formal appeal (審査請求, shinsa seikyū) with the head of the local government that appointed the manager (e.g., the city mayor). The mayor would then review the designated manager's decision. While this is an option, it often lacks the speed and binding force of a court order, making it less suitable for urgent matters.

2. Administrative Litigation (行政事件訴訟, Gyōsei Jiken Soshō)

The more powerful route is to file a lawsuit. In a situation like this, the goal is not merely to cancel the denial but to actively obtain the permit. Therefore, the most appropriate legal action is an action for an order of performance (義務付け訴訟, gimuzuke soshō). This type of lawsuit asks the court to order the administrative agency (in this case, the designated manager) to issue the permit.

However, given the urgency, the most critical legal tool is the provisional order of performance (仮の義務付け, kari no gimuzuke), filed alongside the main lawsuit. Governed by Article 37-5 of the Administrative Case Litigation Act, this is the Japanese equivalent of a preliminary mandatory injunction. If granted, the court would temporarily order the manager to issue the permit, allowing the performance to proceed while the main case is pending.

Winning the Provisional Order: The Three-Part Test

A court will grant a provisional order only if the applicant meets a strict three-part test.

Requirement 1: "Irreparable Harm" (償うことのできない損害)

The applicant must demonstrate that they will suffer "irreparable harm" if the order is not granted. This standard is considered more stringent than the "grave harm" required for a simple stay of execution.

In this case, the harm is clearly irreparable.

• Time-Sensitive Right: The performance is scheduled for a specific date. If that date passes, the opportunity is lost forever.
• Non-Monetary Loss: The harm is not just financial (e.g., sunk costs for preparation). It is the loss of the opportunity for expression and assembly—fundamental rights protected by the Constitution of Japan. The Supreme Court of Japan has recognized that when a specific event date is key, its passing makes a subsequent legal victory hollow (Supreme Court, December 23, 1953).
• Lack of Alternatives: The group proved that no other suitable venues were available.

Monetary damages cannot restore a lost opportunity for expression on a date of particular significance. Therefore, this requirement is met.

Requirement 2: Likelihood of Success on the Merits (本案について理由があるとみえるとき)

The applicant must show that they have a strong case and are likely to win the main lawsuit. This involves a substantive analysis of the legality of the permit denial. The central legal question is whether the fear of disruption by third parties is a valid reason to deny a permit for expressive activity in a public forum.

The landmark precedent is the Supreme Court decision in Kamimura v. City of Ueo (March 15, 1996). In this case, the Court established a very high bar for what is known as a "heckler's veto." It ruled that a public facility manager cannot deny use simply because a group's message is controversial and might attract protests.

The Court held that such a denial is only justified in exceptional circumstances where it is concretely foreseen that the protest will lead to chaos that threatens the life, body, or property of others, and this chaos cannot be prevented even with a reasonable police presence.

Applying this stringent test to the facts of our case study:

• While protests were expected, past experience showed that police had been able to manage them and ensure the events proceeded safely.
• There was no concrete evidence to suggest that the police would be unable to maintain order this time.
• The concern for the business of other tenants in the building, while a factor, does not rise to the level of a threat to "life, body, or property" and cannot outweigh the fundamental constitutional right of expression, unless the disruption was truly severe and unavoidable.

Therefore, the designated manager's decision to deny the permit, based on a generalized fear of disruption that could likely be controlled, appears to be an illegal abuse of discretion. The cultural group has a strong prima facie case, satisfying the second requirement.

Requirement 3: No Major Harm to Public Welfare (公共の福祉に重大な影響を及ぼすおそれ)

Finally, the court must find that granting the provisional order will not cause "major harm to the public welfare." This is a negative requirement, and the burden is generally on the administrative body to prove such harm would occur.

In this instance, granting the permit does not harm the public welfare. To the contrary, protecting the constitutional right to free expression, facilitated by adequate police security, is itself a core component of the public welfare. The potential for some traffic disruption or noise from a managed protest is a manageable inconvenience, not a "major harm" that would justify suppressing a fundamental right.

Conclusion

The Designated Manager System represents a significant shift in how public services are delivered in Japan, empowering private entities with administrative authority. However, this power is not absolute. As the case of the denied hall permit illustrates, designated managers are bound by the same constitutional and administrative law principles as any government body.

When making decisions, especially those that implicate fundamental rights like freedom of expression, their discretion is narrowly circumscribed. The fear of a "heckler's veto" is not a legally sufficient ground to deny access to a public forum unless the threat of disruption is concrete, severe, and cannot be managed by law enforcement.

For businesses and groups seeking timely access to public facilities, the provisional order of performance is a vital legal tool. It provides a path to immediate judicial relief, ensuring that administrative delays or improper denials do not render a time-sensitive right meaningless. Understanding this remedy and the legal standards that govern it is essential for effectively navigating Japan's modern public-private landscape.