Disciplinary action against whistle-blowing employee illegal

The Kyoto District Court on 27 April 2023 ruled that the disciplinary action taken by Kyoto City against a male employee who took out consultation records concerning children in order to blow the whistle on a sexual abuse case at a children’s home in Kyoto was illegal, and ordered him to pay approximately 6.2 million yen in damages as compensation.
　In 2015, when the man was working at the Child Guidance Centre, he reported to the city’s public interest whistleblower office a neglected consultation from a mother who claimed that a girl had been sexually abused by the director at a children’s home in Sakyo Ward. The city of Kyoto imposed a three-day suspension on the male employee, stating that the fact that he viewed the girl’s records outside his charge and took them home with him on the occasion of the whistleblowing constituted a breach of his duty discipline. The Kyoto District Court in the first instance and the Osaka High Court in the second instance found that the removal of the records had the purpose of public interest reporting and that the disciplinary action was illegal, and the Supreme Court confirmed the revocation of the disciplinary action.
　The man had filed a claim for damages against Kyoto City, claiming that he had suffered psychological damage as a result of the disciplinary action, but the Kyoto District Court found that the disciplinary action against him was illegal and also ordered the payment of legal fees and compensation for the legal costs incurred in the action to revoke the disciplinary action, on the grounds that the male employee would not have had to continue the action to the Supreme Court if he had not been subject to the said disciplinary action. The court also ordered the male employee to pay legal fees and compensation for the legal costs of the revocation proceedings.
　Filing a lawsuit is not itself deemed illegal under tort law. However, the plaintiff’s male conduct cannot be assessed as illegal under tort law if the purpose is in the public interest and the inspection of the material for reporting is deemed reasonable in means. If the disciplinary action is judged to be illegal and the right of the man to self-determination is infringed, and if this was foreseeable and the disciplinary action could have been avoided, it is judged that Kyoto City was negligent, a tort is established and the city is liable for compensation for the damage caused.

Guidance on the use of chat GPTs by students in Japanese universities.

According to the Mainichi Shimbun newspaper on 21 April 2023, major Japanese universities have issued guidance on the use of chat gpt. The Mainichi Shimbun asked 19 universities in Japan – Aoyama Gakuin, Osaka, Kansai, Kwansei Gakuin, Kyushu, Kyoto, Keio, Sophia, Chuo, Tokyo, Doshisha, Tohoku, Nagoya, Hosei, Hokkaido, Meiji, Rikkyo, Ritsumeikan and Waseda – whether they had views or guidelines on interactive AI. Of these, five universities – Osaka, Kyushu, Sophia, Aoyama Gakuin and Kwansei Gakuin – responded that they have views on interactive AI, and the University of Tokyo also announced its views on its website on 3 March.
The universities’ responses are as follows. Kyushu University does not agree with prohibiting the use of AI as a tool for students to find out what they want to know on their own, and that the teachers in charge of each freshman class have set rules for its use.
Osaka University cautions that students may be exposed to various risks if they transmit the answers obtained from AI as their own words without correctly judging their truth or falsity.
Sophia University has announced a policy prohibiting the use of AI texts, programme codes and calculation results in reports, essays and theses. The university says it will take strict action if use is confirmed, and will continue to review and consider the use of AI, including its use in education, as appropriate.
Thirteen other universities stated that they were currently reviewing and gathering information to formulate guidelines. Ritsumeikan University has stated that it will start examining measures to prevent misuse and appropriate usage for graduation theses, master’s theses and class mini-reports, while Waseda University is examining the content. Chuo University, when asked by the Mainichi whether it already has any problems, replied that it has seen cases of students using interactive AI to substitute summarised information for textbooks. This is a disincentive for students to acquire systematic knowledge. The university notes that there is a concern that more students will use interactive AI, as they are more interested in using their time efficiently, rather than unskilled students. ‘This is because they believe that if the effort to learn one piece of knowledge is reduced, the remaining time can be used for other studies’. However, systematic knowledge needs to be accumulated in order to detect errors in AI-generated texts.
In addition, 13 universities were already using plagiarism detection software in relation to reports and other student submissions.

Violation of doctor’s duty to advise on hospital transfer

On 18 April 2023, the Hitoyoshi Branch of the Kumamoto District Court handed down a judgement ordering a hospital in Kumamoto Prefecture to pay compensation.

The case was claimed by the family of an 86-year-old man who was rushed to Toyama Gastroenterology Hospital in Hitoyoshi in 2018.
The plaintiff, a bereaved family member, sought approximately 32 million yen in compensation from the hospital and other parties on the grounds that there had been an oversight in the man’s medical examination.

The court found that there had been medical negligence, accepted the plaintiff’s claim for compensation and, on 19 April 2023, ordered the hospital and the doctor who examined the man to pay approximately JPY 18 million, finding that the man could have survived if he had been transferred to a hospital where he could have been treated, and that a causal link between the breach of duty to transfer and his death was established. The court ordered the hospital and the doctor who examined him to pay approximately 18 million yen.

What obligations do building material manufacturers who manufacture and sell asbestos-containing building materials owe to workers engaged in demolition demolition work?

A decision of 3 June 2022 of the Second Petty Bench of the Supreme Court of Justice held that building material manufacturers are not obliged, when manufacturing and selling asbestos-containing building materials, to indicate to persons engaged in the demolition of buildings in which such materials are used that exposure to the dust generated by such materials may result in asbestos-related diseases. Demolition contractors who employ employees have a contractual or good faith obligation to take safety measures to prevent exposure to contaminants during demolition operations, and are liable for damages incurred if they fail to do so.

However, if the contractor undertaking the demolition work in question is unaware that the object to be demolished contains contaminants, there appears to be no opportunity to take safety precautions. However, if the demolition contractor is obliged to investigate whether the object contains pollutants, and if it becomes known that the object contains pollutants, it would seem that if he fails to do so, he can be held responsible for failing to take safety precautions. If the manufacturer, which has no direct employment contractual relationship with the worker, was named as the defendant in the case, was a claim for damages made against the employer, the contractor?

High Court in Japan shows trend against beneficiaries in action to revoke welfare payments reduction

The government revised the standard amount of livelihood assistance, which covers food, utilities and other expenses in the public assistance budget, in light of falling prices due to deflation between 2008 and 2011. The municipalities set the amount according to this standard amount.

The beneficiary filed lawsuits to overturn the decision, which were filed in 29 district courts across the country. The main issue in the case was whether the method of calculating the ‘deflation adjustment’, which determines the amount of the reduction according to the rate of fall in prices, was appropriate.

Of the 19 first-instance decisions to date, 10 have upheld the order and nine have found it unlawful.

In February 2021, the Osaka District Court, the court of first instance, ruled that the government’s own index used for the calculation did not reflect the actual living conditions of the recipients and that it was “inconsistent with the findings of experts and contained errors and omissions in the decision-making process”, and therefore annulled the reduction. In response, on 14 April 2023, the Osaka High Court ruled on a lawsuit filed by around 40 recipients in Osaka Prefecture against the government and 12 cities in the prefecture, claiming that the government’s reduction of welfare payments since 2013 violated the constitutional guarantee of the right to life. The High Court recognised the discretion of the Minister of Health, Labour and Welfare in revising the standard amount, as there was no need for expert verification, and praised the decision to focus on the increase in disposable income of recipient households following the Lehman shock as ‘reasonable’, stating that the method of calculating the rate of price decline was also a ‘genuine policy decision’.

On 19 April, the Nagoya High Court, Kanazawa Branch, rejected an appeal by pensioners from Ishikawa and Fukui who claimed that the government’s decision to reduce pension payments in line with past price declines violated the Constitution. The ruling noted that the revised pension law “aims to ensure intergenerational fairness and maintain the sustainability of the system, and the legislative purpose cannot be said to be unreasonable”.

Fraudulent Insurance Instruments Sales by Japan Post and Employee Liability

In June 2019, Japan Post Insurance announced that in the five years to March of the same year, 23,900 customers were disadvantaged by switching insurance policies. This resulted in a number of cases, including those in which customers were unable to obtain new policies due to health reasons and became uninsured. Contractually, insurance switching consists of the cancellation of the old policy and the conclusion of a new policy. When a subscriber enters into a new policy, he or she may be refused to enter into a new policy depending on the state of his or her health.
The solicitor is obliged to explain such disadvantages. If a subscriber cancels the old contract without knowing it, the Civil Code provides that the subscriber may demand cancellation of the old contract on the grounds of default and payment of compensation for damages incurred.
In addition to these cases, JPI also found that there were approximately 22,000 cases in which customers had paid double premiums for the old and new policies for more than six months. It is alleged that post office employees were postponing cancellations in order to avoid having their sales allowances halved compared to new policies because cancellations within six months of the signing of a new policy would be considered a transfer, and thus, the post office employees were delaying cancellations for the sake of allowances. The premiums paid in duplicate may be sought for refund on the grounds of unjust enrichment under the Civil Code.
Behind this string of inappropriate sales is the fact that the prolonged low interest rates have brought the company’s investment in government bonds to a standstill, forcing it to secure commission income from insurance sales. With postal revenues in the doldrums, sales commissions from JPI have become a major source of income for Japan Post, leading to unreasonable sales activities at post offices.
According to Japan Post’s survey, most customers responded to the survey that they had been told that they would be disadvantaged, while others said that they did not expect such a loss and that they trusted the bureau staff and signed up as they were recommended. In some cases, the old and new premiums were paid twice.
Japan Post took disciplinary action, including dismissal, against the employees who engaged in such improper sales. Of the 2,269 bureau employees in charge of sales, 28 were dismissed and more than half were suspended or reduced in pay, a heavy punishment. 1,082 supervisors and head office managers were disciplined, with the majority receiving only admonitions or cautions.
The dismissed employees filed five lawsuits nationwide against their employers, claiming that their dismissals were invalid. The plaintiffs, a total of six former bureau employees, were all fired for repeatedly switching insurance policies to the detriment of elderly customers and others in internal investigations since July 2019, when the Japan Post Group admitted to fraudulent sales.
The former employees filed a lawsuit against Japan Post, claiming that the company had approved the terms of their contract, but that the company abused its right to dismiss them by turning around and imposing harsh disciplinary measures after the problem was discovered. The former bureau employees claimed that they had explained to customers and confirmed their intentions using documents stipulated in the company’s internal rules. They claimed that the contents of the contract had gone through document verification by the post office manager and examination by JPI, and that this was not considered a problem at the time. The lawsuit focused on whether the former employees of the post office properly confirmed the customers’ intentions and explained the disadvantages associated with the transfer. Japan Post responded by claiming that “JPI’s screening is based on formal checks, and that passing these checks does not mean that the policyholders’ intentions were being followed.
In this regard, from December 2022 to March 2023, two cases were decided by the Sapporo District Court and one by the Mito District Court. The Kanazawa District Court in January 2023 ruled that the dismissal of one of the former employees was valid.
The three judgments that invalidated the dismissals accepted the claims of the former employees, saying, “At that time, Japan Post was required to confirm the intentions of its employees and to explain any disadvantages to them. On the other hand, the Kanazawa District Court ruling stated, “The plaintiff caused a large amount of losses to customers, and the manner in which she did so was both sophisticated and malicious. The district court ruled that the dismissal was justified because there was no evidence to support a finding that the supervisor was aware of the wrongdoing.
However, even if the supervisor had not been aware of the dishonesty of the postal worker in charge of the sale, negligence is not excused. In addition, the employee, not the consignment seller, is in a position where he or she must follow the instructions of the company or the supervisor. There must be special circumstances to justify the dismissal of a sales employee.

Otsu District Court Dismisses Lawsuit d by Nine Plaintiffs Seeking Revocation of Reduced Welfare Benefits

The Ministry of Health, Labor, and Welfare (MHLW), which examines every five years whether the standard amount of welfare benefits is balanced with the actual consumption of low-income households not using the system, revised the standard amount by an average of 6.5% and a maximum of 10% over the three years from August 2013, reducing it by approximately 67 billion yen in total. A total of approximately 67 billion yen in cuts were made. 96% of recipient households, or more than 2 million people, were subject to the reductions.
Approximately 900 people in 29 prefectures across Japan have filed lawsuits demanding the cancellation of the reduction. Thirteen recipients from the three cities of Otsu, Kusatsu, and Moriyama filed suit in the Otsu District Court in October 2002 and September 2005. The plaintiffs, nine recipients in their 30s to 80s from Otsu City, demanded that the government and the city rescind the reductions and pay 10,000 yen per person in compensation, on the grounds that the government’s lowering of the standard amount of welfare payments violates the Constitution, which guarantees the right to exist. The plaintiffs claimed that the data on which the government based the revision and the method used to calculate price fluctuations were arbitrary, and that the use of the year 2008, the year of the Lehman Shock, as the base year, was “intended to overstate the decline in prices. On April 13, 2023, the Otsu District Court dismissed the plaintiffs’ lawsuit. This is the 19th such lawsuit, known as the “Inochino Toride Trial,” that has been filed in 29 prefectures. Since the Kumamoto District Court ruling last May, eight of the nine district courts have ruled in favor of the plaintiffs.

Notes written by Dando, a former Supreme Court judge, reveal that the independence of the judiciary was threatened by the Supreme Court’s decision in the Osaka Airport pollution case.

Shigemitsu Dando was a criminal law scholar and former Supreme Court Justice. After his death in 2012, his nearly 100,000 items were donated to Ryukoku University in Kyoto. The university, which has a correctional and protection center, has launched the Dando Collection Research Project and is conducting various research activities based on the donated materials. It is said that the reason for the donation of Dando’s Notebook to Ryukoku University was because Takeo Mizuno, a member of the plaintiff’s legal team, is a professor (practitioner) at the University.

The results of the joint research with NHK was broadcast as a special program on ETV on April 15, 2023.
Osaka Airport is an international airport located in Ikeda City, Osaka Prefecture. Twenty-eight residents of the surrounding area, who were troubled by the noise and vibration of aircraft taking off and landing at the airport, demanded that the government, which manages the airport, stop night flights and compensate them for damages, claiming that the noise constituted a tort under the National Compensation Law.
This is the so-called “Osaka International Airport Pollution Lawsuit”. This is the first case in which the government was held liable for damage caused by aircraft noise. In 1975, the Osaka High Court granted an injunction against night flights at Osaka Airport and compensation for damages on the grounds that the residents’ “right to sleep peacefully” had been infringed based on their environmental rights as a personal right. From the filing of the first lawsuit in December 1969 to the settlement of the fourth lawsuit in March 1984, a total of 15 years passed. During that time, the first trial (Osaka District Court, February 27, 1974) and the appeal (Osaka High Court, November 27, 1975) of the first and third lawsuits were decided. The rest of the team members were in their late 20s to early 30s, and all of them had less than 10 years of legal experience. The young lawyers, who had no experience in a lawsuit of this magnitude, had no compass to guide them, and they tackled the lawsuit based solely on the certainty that justice would be done. Among the defense lawyers were Takii and Tahara, who later became Supreme Court judges, and Kuboi who became president of the Japan Federation of Bar Associations.
However, on December 16, 1981, the Supreme Court ruled against the residents’ request for an injunction against the flights. The court ruled that the national airport was not subject to a civil suit because the national government’s air administrative authority extends to national airports, The court dismissed as inadmissible a suit seeking an injunction against the use of the state-run airport for aircraft takeoffs and landings during certain hours as a civil claim based on personal or environmental rights. However, the court accepted the claim for compensation for past damages for noise, etc. caused by the use of the airport by applying Article 2 of the National Compensation Law, as it was based on special sacrifices. The claim for future damages was dismissed on the grounds that it is difficult to determine the extent of future damages and does not qualify as a claim for which an action for future benefits can be brought (Minshu, vol. 35, no. 10, p. 1369).
https://www.courts.go.jp/app/hanrei_jp/detail2?id=54227
Regarding the flight injunction, an agreement was subsequently reached between the local residents and the national government that no flights would be made after 9 p.m., effectively protecting the residents’ “right to sleep in a quiet environment. This remains in effect to this day. I was a bar exam student at the time and passed that year, and I remember studying this case.
By the way, among the materials donated to Ryukoku University was a notebook that revealed the inner workings of the Supreme Court’s deliberations in this case. Dando’s notebook contained a surprising fact that the Supreme Court subcommittee had initially settled on the conclusion of “approval of the flight injunction. Dando criticized the majority decision, saying, “The Dando decision should not close the way to seek relief from the court.

Former President of the Supreme Court of Justice Murakami intervened in this decision because he thought it would have a significant impact on other pollution litigation. However, it should be left to the judgement of the people and history, and the judge should make the decision from his own thought and conscience.

On 15 April 2023, NHK broadcast a special programme based on Judge Danto’s notes on the events leading up to the Supreme Court decision in the Osaka Airport litigation. According to the report, the small court in charge of the case at the Supreme Court was scheduled to reject the appeal by the State, which lost the second trial, and issue a ruling in favour of the Osaka High Court ruling (approving the injunction against flights after 09:00). However, at the instigation of the Ministry of Justice, the Chief Justice of the Supreme Court and others, the case was referred to the Grand Chamber of the Supreme Court, which ruled to revoke the Osaka High Court decision (rejecting the flight injunction). However, the conclusion was changed when former Chief Justice Murakami, who had worked for the Ministry of Justice for a long time and was said to be the de facto representative of the Ministry of Justice, telephoned the then Chief Justice and recommended that the case be referred to the Grand Chamber of the Supreme Court. This makes it seem doubtful that the Constitution guarantees the independence of judges, but the substance of this guarantee is not in doubt.

This incident reminds us of the Hiraga letter case in the Naganuma Nike case litigation. In 1969, the Minister of Agriculture and Forestry cancelled the designation of a state-owned security forest under Article 26, paragraph 2 of the Forest Law in order to build the Air Self-Defence Force’s Nike J surface-to-air missile base at Umaoizan, Naganuma Town, Yubari County, Hokkaido. Some local residents filed an administrative lawsuit with the Sapporo District Court seeking cancellation of the administrative measures, claiming that the lifting of the security forest was illegal on the grounds that the SDF was an unconstitutional entity and that there was “no public interest in the construction of the base” due to flood dangers. On 14 September 1969, Kenta Hiraga, the then director of the Sapporo District Court, presented Shigeo Fukushima, the presiding judge of the Sapporo District Court in charge of the case, with a detailed memo entitled “One Senior’s Advice”, in which he suggested that the plaintiff’s petition be rejected on the issues raised by the court’s decision. This is known as the “Hiraga letter issue”. The Director-General of the Supreme Court Secretariat issued Hiraga with a cautionary disposition, as such an action by the Director-General was considered a violation of Article 76(3) of the Constitution of Japan, which stipulates the ‘independence of judges’. However, the first instance decision issued by Justice Fukushima was later annulled by the Sapporo High Court and the Supreme Court.

Kinki Nippon Tourist Falsifies Results, Overstates Vaccine Business by ¥290 Million

Kinki Nippon Tourist Co. We were unaware that such a company had been entrusted by the government with call center operations for vaccination n the new coronavirus. In addition, the company allegedly overbilled Higashiosaka City for labor costs of approximately 290 million yen. according to the Mainichi Shimbun dated April 12, 2023, the company billed Higashiosaka City for labor costs for the designated number of operator seats, even though it had ordered fewer seats from the subcontractor than the number of seats designated by the health department. The company asked the re-consigned company to falsify work records. Following the discovery of the incident, the company’s president held a press conference in Osaka City and apologized, saying, “I sincerely apologize for betraying your trust,” but making a mistake will not be enough.
Kinki Nippon Tourist is not alone: on February 10, 2023, it was reported that the company had made a false report when it outsourced call center operations related to the vaccination for the Great H1N1 Coronavirus to Pasona Inc. Hirakata City in Osaka Prefecture had comprehensively outsourced to Pasona Inc. operations related to the operation, including call center operations related to the new-type corona vaccination, from February 2021, and of this entire operation, call center operations were re-commissioned by Pasona to “etel”.
In this call center operation, “etel” is alleged to have made false reports regarding the assignment of operators and other matters.
According to Hirakata City, the response rate to calls at the call center on November 1, 2022 was not 100 percent even in the afternoon, and the number of completed calls was reported to be 3,500, but the number of completed reservations was extremely low at 750, so the city confirmed with Pasona The city checked with Pasona. Upon doing so, Pasona reported to Hirakata City that it had actual knowledge that the number of operators was clearly short of the planned number, and it was discovered that the number of personnel decided upon in discussions between the City and Pasona had not been allocated.
The amount of damage to Hirakata City, which is assumed at this time, is estimated to be as much as ¥160 million. Similar problems have been reported in Nishinomiya City, Hyogo Prefecture, and Suita City, Osaka Prefecture, with damages estimated at approximately 270 million yen in Suita City and 450 million yen in Nishinomiya City.
Pasona claims that it did not adequately manage and supervise the workers, but this is hard to believe. In a civil case, at the very least, a tort of negligence is recognized, but given that similar problems have occurred in such a wide range of areas, the court should also recognize an intentional act of willful misconduct. Criminally, there may be room for a finding of fraud.

Backlash against unsolicited call ban