When is the Japanese Government Liable for Damages? Understanding "Illegality" in State Redress Cases

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

When the actions of public officials in Japan cause harm to individuals or businesses, the State Redress Act (Kokka Baishō Hō - 国家賠償法) provides a crucial avenue for seeking monetary compensation. Article 1, Paragraph 1 of this Act establishes the fundamental principle of state liability: if a public official, in the course of performing their duties, illegally and through intent or negligence, causes damage to another person, the State or the relevant public entity is liable. While several elements must be proven, a central and often complex question is what constitutes "illegality" (ihō - 違法) on the part of the official conduct. It's not always a straightforward issue, and the type of "illegality" required for a successful state redress claim can differ from the illegality that might lead to an administrative act being merely cancelled in a revocation suit. This article delves into how Japanese courts, particularly the Supreme Court, have defined and applied the concept of "illegality" in state redress cases, focusing on the prevailing "duty of care" standard.

The State Redress Act (Article 1, Paragraph 1): The Foundation for Governmental Liability

Article 1, Paragraph 1 of the State Redress Act lays down the core requirements for establishing the liability of the State or a public entity for the wrongful acts of its officials:

  1. The act must have been performed by a public official (kōmuin - 公務員).
  2. The official must have been acting in the course of performing their duties (職務を行うについて - shokumu o okonau ni tsuite), meaning the act must be related to their official functions.
  3. The act must have been illegal (ihō ni - 違法に).
  4. The official must have acted with intent (koi) or negligence (kashitsu - 過失).
  5. The act must have caused damage (songai - 損害) to another person.

While all these elements are critical, the interpretation of "illegality" has been a significant subject of judicial development and academic debate. It's clear that not every administrative error or incorrect decision automatically meets the threshold of "illegality" for state redress purposes.

Defining "Illegality" in State Redress Cases: More Than Simple Incorrectness

A key distinction to understand is that the "illegality" that can lead to an administrative disposition being revoked or nullified in an administrative revocation suit (torikeshi soshō) is not necessarily identical to the "illegality" required to establish state liability for damages under the SRA. An administrative act might be found unlawful and thus be revoked if it is contrary to a specific statute or regulation, or if proper procedures were not followed. However, the officials involved in making that (revocable) decision might not automatically be deemed to have committed an "illegal" act in the SRA sense if, for instance, they made a reasonable interpretation of a complex law or acted with due care based on the information available to them at the time.

So, what standard do Japanese courts apply to determine "illegality" for state redress claims?

The Prevailing Standard: Breach of the Objective Duty of Care (職務上の注意義務違反 - Shokumu-jō no Chūi Gimu Ihan)

The dominant approach adopted by the Supreme Court of Japan for assessing "illegality" under SRA Article 1(1) is one based on the breach of an objective duty of care incumbent upon public officials in the performance of their duties. This is often referred to in legal scholarship as the shokumu kōi kijun setsu (職務行為基準説 – literally, the "official conduct standard theory") or the kyakkanteki chūi gimu ihan setsu (客観的注意義務違反説 – "objective duty of care violation theory").

The Standard Explained:
Under this standard, an official's conduct is deemed "illegal" for state redress purposes if it falls below the level of care and diligence that is ordinarily expected of a reasonably prudent and competent public official in that same position, under similar circumstances. The focus is objective: it's not primarily about the official's subjective belief in the legality or appropriateness of their actions, but whether their conduct, when viewed objectively, failed to meet the standard of professional care required by their public office.

This "duty of care" encompasses various aspects, including:

  • The duty to correctly ascertain and understand the relevant facts.
  • The duty to correctly interpret and apply the applicable laws and regulations with reasonable diligence.
  • The duty to exercise any discretionary powers in a manner that is not arbitrary, irrational, or for an improper purpose.

Not Every Mistake Constitutes "Illegality":
This standard acknowledges that public officials operate in complex environments and may sometimes make errors in judgment or interpretation. A mere incorrectness in applying the law or assessing facts does not automatically mean that the official has breached their objective duty of care and thus acted "illegally" for SRA purposes. This is particularly true if:

  • The legal issue was genuinely ambiguous or unsettled, with no clear precedent or established interpretation.
  • The official made a reasonable judgment based on the information available at the time, even if that judgment later turns out to be mistaken.
  • The official was following established procedures or internal guidance that was not, at the time, known or clearly identifiable as unlawful.

For SRA liability to arise, there usually needs to be a clear deviation from what a reasonably diligent official should have known or done in that situation.

The Supreme Court (Second Petty Bench) judgment of November 1, 2007 (Minshū Vol. 61, No. 8, p. 2839) provides a significant illustration of how the "duty of care" standard is applied, particularly in cases involving the misapplication of law by officials based on unlawful internal administrative guidance.

Facts of the Case:
The plaintiff was an A-bomb survivor (hibakusha) residing in South Korea. She applied for health management allowances (健康管理手当 - kenkō kanri teate) under the Act on Relief for Atomic Bomb Survivors (Hibakusha Engo-Hō). Her application was processed by officials at a Japanese consulate (acting on behalf of the Minister of Health, Labour and Welfare). These officials, relying on a long-standing internal administrative circular known as the "402-gō tsūtatsu" (402号通達), effectively denied or failed to grant the allowance. This circular had stated that eligibility for such allowances was lost if an A-bomb survivor resided outside Japan.

Crucially, this 402-gō tsūtatsu was later determined by various court decisions (including earlier Supreme Court rulings in other contexts) to be an unlawful interpretation of the A-Bomb Survivors' Relief Act. The Act itself did not stipulate Japanese residency as a condition for receiving these specific health management allowances. The survivor subsequently sued the State of Japan for damages, claiming compensation for the unpaid allowances during the period when payment was withheld due to the government's reliance on this unlawful circular.

The Supreme Court's Finding of "Illegality" and State Liability:
The Supreme Court affirmed the State's liability for damages. Its reasoning on the element of "illegality" under SRA Article 1(1) was based on the breach of the objective duty of care by the officials involved:

  1. Fundamental Duty to Correctly Interpret and Apply Law: The Court started from the premise that public officials have a fundamental professional duty to correctly understand and apply the laws and regulations that govern their actions.
  2. Application of the Unlawful Circular as a Breach of Duty: While public officials are often expected to follow internal administrative circulars and guidance issued by their ministries, the Court held that if such a circular is itself a clear and unjustifiable misinterpretation of the primary law (in this case, the A-Bomb Survivors' Relief Act), then officials who mechanically apply that unlawful circular without due regard for the proper meaning and purpose of the Act can be found to have breached their objective duty of care.
  3. Nature of the Flaw in the Circular: The 402-gō tsūtatsu was not merely a minor misinterpretation of a highly complex or ambiguous legal point. It effectively denied statutory benefits to an entire class of otherwise eligible individuals (overseas-residing A-bomb survivors) based on a criterion (overseas residence) that was simply not present in the governing statute for those specific allowances. The circular's interpretation was deemed to lack a rational basis and to be contrary to the aims of the Relief Act.
  4. Threshold for Breach of Duty: The Supreme Court's reasoning implies that for the misapplication of law based on an internal circular to be considered "illegal" for state redress purposes, the circular's deviation from the correct legal interpretation of the primary statute must be relatively clear or significant. It is not about penalizing officials for every nuanced interpretative judgment, but rather about identifying situations where the administrative interpretation or the guidance based upon it is patently erroneous or lacks a reasonable legal foundation.
  5. The Act of Denying Benefits Based on the Flawed Circular: The act of the consulate officials in denying or failing to grant the health management allowances based on this clearly flawed circular was therefore deemed to have fallen below the standard of care expected of officials responsible for administering the A-Bomb Survivors' Relief Act. Their conduct was thus "illegal" for the purposes of SRA Article 1(1).

The Interplay between "Illegality" and "Negligence" (Kashitsu)

In the SRA Article 1(1) formulation, "illegality" and "intent or negligence" are listed as distinct requirements. However, in practice, particularly when "illegality" is defined as a breach of the objective duty of care, there is a very significant overlap with the concept of "negligence" (kashitsu).

If an official's conduct objectively falls below the standard of care expected of a reasonably prudent and competent official in their position (thus satisfying the "illegality" criterion under the duty of care standard), that same conduct is highly likely to be seen as "negligent" as well. Negligence, in this context, means the failure to exercise the required degree of care.

Therefore, once a breach of the objective duty of care is established (leading to a finding of "illegality"), negligence is often presumed or found to exist concurrently, unless the official or the State can demonstrate some specific excusing circumstance. Such circumstances might include, for example, a situation where the legal issue was exceptionally complex and genuinely debatable even among legal experts at the time, or where the official was acting under direct, specific, and seemingly lawful instructions from a superior on a matter where they had no independent discretion (though the liability for following unlawful orders from superiors can itself be a complex issue). In the 2007 A-bomb survivor case, having found the officials' conduct illegal based on the breach of their duty to correctly apply the law (and not rely on the patently flawed circular), the Supreme Court also affirmed the finding of negligence.

Conclusion: The "Reasonable Official" as the Benchmark for State Redress Illegality

Determining whether a Japanese government action that has caused damage is "illegal" for the purposes of a state redress claim under Article 1, Paragraph 1 of the State Redress Act is a nuanced inquiry. It goes beyond simply asking if the administrative action was contrary to some law in a way that might make it revocable in an administrative lawsuit.

The prevailing judicial standard, as consistently affirmed and applied by the Supreme Court of Japan, focuses on whether the public official involved, in the course of performing their duties, breached the objective duty of care expected of a reasonably prudent and competent official in their specific position and under the circumstances of the case.

This means that public officials are expected to interpret and apply laws and regulations with due diligence, reasonable accuracy, and a proper understanding of their scope and purpose. While simple errors in judgment, especially in relation to complex or ambiguous legal matters, may not automatically trigger state liability, actions that are based on clearly erroneous interpretations of law, or the mechanical application of unlawful internal administrative guidance (such as administrative circulars that patently misstate or contradict the governing statutes), can be deemed "illegal" for state redress purposes if they fall below this objective standard of professional care.

This "duty of care" approach seeks to strike a crucial balance: it provides a meaningful pathway for individuals and businesses to obtain compensation for harm caused by clear official failures and wrongdoing, while also recognizing the inherent complexities of public administration and the need for officials to exercise judgment without the constant fear of liability for every minor or good-faith mistake. The ultimate benchmark against which official conduct is measured in state redress cases is that of a "reasonable official" performing their duties with the expected level of diligence and competence.