Judicial issues reveal dissolution case as highly problematic
An explanation by Attorney Nobuya Fukumoto representing the Family Federation of Japan on judicial issues of the Japanese government’s request to Tokyo District Court on 13th October to issue a dissolution order for the Family Federation of Japan. The explanation was given at a press conference 16th Oct. 2023 at the national headquarters of the Family Federation in Shibuya, Tokyo. The press conference was attended by most major Japanese news outlets.
I would like to briefly explain the judicial issues involved in requesting a dissolution order. As you have been informed, a trial for the administrative fine is currently underway at the Tokyo District Court.
The legal issues in both the administrative fine trial and the dissolution order request case overlap.
The biggest point of contention is that on 19th October last year, Prime Minister Kishida changed the interpretation of the law overnight by stating that civil law torts may also be included in the category “in breach of laws and regulations stipulated by Article 81(1)(i)” of the Religious Corporations Act.
The question is whether it will be admissible in court.
Another issue is the interpretation of the requirements for an act to be considered an act of a religious corporation.
In fact, a notice of administrative fine has been issued by the Ministry of Education, Culture, Sports, Science and Technology to the court in this case. It contains the ministry’s arguments regarding the legal issues that I have just mentioned. Based on them, I will provide the following commentary.
No reasons for dissolution
First, I will explain grounds for dissolution as provided in Article 81(1)(i) of the Religious Corporations Act. There, it states that reasons for dissolution are “acts that are clearly deemed to be contrary to the law and extremely detrimental to public welfare.”
The phrase “in breach of laws and regulations” is the biggest problem with the government’s new interpretation that I mentioned earlier.
Violation of laws and regulations is the very entry requirement of Article 81(1)(i), so if you cannot pass through this entry point, there is no way you can request a dissolution order. By laws and regulations, we mean actual laws, orders and other substantive regulations. This is undisputed.
No specification of laws violated
Next, I will comment on the term “in breach”, “in breach of laws and regulations”. A specific identification is required of which article of actual laws that has been violated. This is an indispensable requirement of article 81(1)(i) of the Religious Corporations Act.
However, the following is what the Ministry of Education has issued in the notification of the administrative fine:
All it says is that “the violations of laws and regulations referred to in Article 81(1)(i) of the Act include acts that violate civil law and order.” It has not been specified which law or which article has been violated. They did not cite any articles.
There is no specification of any law that has been violated, so the basis for the “grounds for dissolution” of paragraph 1 is lacking. Therefore, it is not possible to request an order for dissolution or to exercise the right to ask questions. This is because unless there is a suspicion that there are grounds for dissolution, the right to pose questions cannot be exercised. That’s clearly stated in the law.
In this situation where no specific laws or regulations are specified, it is impossible to request a dissolution order or exercise the right to question. In legal practice, this is not a violation of Article 709 of the Civil Code.
I believe that the Ministry was actually unable to identify the text of a law that has been violated. If you cannot identify the statute that has been violated, you cannot request a dissolution order or exercise the right to ask questions.
A request for a dissolution order is, so to speak, a request for the death penalty against a religious corporation. For example, when seeking the death penalty for a murderer, Article 199 of the Penal Code, which prohibits killing, must be clearly stated.
If a religious corporation is to be dissolved, it is a matter of course to clearly state which law and article the religious corporation has acted in breach of.
The Ministry only says, “The Family Federation has acted in breach of civil law and order.’ It does not say at all which article of which law it falls under. I have to say that they have nothing to mention at all.
Presumably, this is also the basis for the request for a dissolution order filed on the 13th October. I assume that this is the case.
So, I planned to point this out to you only after the request for a dissolution order had been filed. Therefore, I drew attention to this in our second statement of opinion, but I only sent it out after I had received the first news that the request for a dissolution order had been issued. Why? Because if I had said this first, they would have amended it.
No explanation for new interpretation
Incidentally, the government’s new interpretation is that “if the organisational nature, malice and continuity are evident, and the requirements of the Religious Corporations Law are met, torts under civil law may also be included.” But as far as we can see from the notification of the administrative fine, the Ministry has abandoned any theoretical explanation for this new interpretation.
In May this year, in a notification letter to the Minister of Education and Science, we severely criticised this interpretation of the law as logically bankrupt and for not constituting a legal interpretation at all. This is also posted on our homepage, so you may read it. It was in May of this year.
Despite this scathing criticism, the Agency has not refuted a single one of our points. It’s not that they don’t, they can’t.
Acts committed by an organisation
Next, the subject of Article 81(1) of the Religious Corporations Act is a religious corporation. However, since a religious corporation does not have a physical body, it cannot be the subject of a crime or illegal act. The question then arises in what cases acts committed by individuals associated with a religious corporation can be considered acts of the corporation.
The Tokyo High Court, which heard the appeal in the Aum Shinrikyo dissolution order case, set out the following standard:
“The acts referred to in the first sentence of Article 81(1)(i) and (ii) of the Act are acts committed by the representative officers of a religious corporation, using property acquired and accumulated in the name of the corporation and the human and material organisation established on this basis, and can be considered acts of the said religious corporation in the light of socially accepted norms.”
What is important here is that the offender referred to is limited to a “representative officer”.
I think the intention is that the parties concerned, etc., probably include executive staff, but if it was done by an ordinary member or a low-ranking member, it would not fall under this requirement.
However, the Ministry of Education’s allegation in the notice of the administrative fine case states the following regarding this point:
“An act that is deemed to have reasons to fall under the category of ‘having committed an act’ ‘in respect of a religious corporation’ is: an act that can be assessed as having been committed as the business or activity of the corporation in question, based on facts such as relationship between the direct offender and the religious corporation, the offender’s position, the purpose of the act, the circumstances and manner of the act, the attribution of the effects of the act and its consequences, and other facts and circumstances, and in accordance with socially accepted norms.
The term ‘act’ is understood to mean an act that can be assessed as having been carried out as the business or activity of the legal entity in question, in accordance with socially accepted norms.”
Liability of employers
This is simply a matter of slightly re-wording the criteria for liability of employers in Article 715 of the Civil Code. There, it is excluded from the requirement that the representative officer or another senior staff member is the offender. In other words, we are reducing the case against a religious corporation to the level of liability of employers under Article 715 of the Civil Code.
Under Article 715 of the Civil Code, there is almost no way for an employer to escape liability. That’s the reality. In reality, liability of employers is accepted to the extent of almost no-fault liability.
Although such a lax standard has been adopted, there was actually a prelude to this. At the House of Councillors Budget Committee meeting on 19th October 2022, the Prime Minister himself announced that “the liability of employers under article 715 of the Civil Code” would also be covered by this lax standard. This is exactly what the Prime Minister has asserted in this notice of the administrate fine case.
This is completely different from the standard that has been adopted in past cases involving requests for dissolution orders, the Aum Shinrikyo case, and the Myokakuji case. This is a view that lowers the level all at once, and is completely unacceptable.
In the second Statement of Opinion posted the other day on the religious corporation’s website, you can see how unfair this lax standard advocated by the Ministry of Education is, in contrast to the fact that liability of employers is a remunerative liability, or that the Religious Corporations Act specifies that it is very limited who can be offenders who can be grounds for dissolution. It is explained in detail. If you are interested, please take a look there.
Acts that deviate from the purpose of an organisation
Next, since last year, the Ministry of Education has only claimed the grounds for dissolution under Article 81(1)(i). However, in the case of requesting a dissolution order, they have added the grounds for dissolution in the first part of Article 81(1)(ii) of the same section.
According to the text of Article 81(1)(ii) of the Religious Corporations Law, the second reason for dissolution is that the religious corporation has “acted in a manner that significantly deviates from the purposes of the religious corporation as stipulated in Article 2.”
“In this Law, ‘a religious organisation’ refers to an organisation listed below whose main purpose is to spread religious doctrine, hold ceremonial events, and educate and train believers.” I omit the following part (i) and (ii).
What are the requirements for grounds for dissolution under the first part of item 2, and what is the purpose of a religious organisation as prescribed in Article 2?
- Propagate religious doctrine
- Hold ceremonial events
- Educate and train believers.
The second of the grounds for dissolution will apply if a religious organisation engages in acts that significantly deviate from the purposes listed above.
Religious organisations considered public interest corporations
This is an excerpt from the Minister of Education’s explanation regarding this second item at a recent press conference,
“Religious corporations are considered public interest corporations under the Civil Code. Public interest corporations are the opposite of profit-making corporations such as companies. This is because religious organisations are expected to contribute to society by providing spiritual stability or spiritual training to an unspecified number of people through their religious activities.
And this public interest aspect is the reason why they are given the title of corporation. Therefore, the activities of a religious corporation that harm the public interest can be said to constitute an act that significantly deviates from the purpose of a religious organisation as stipulated in Article 2, and as stipulated by the first sentence of Article 81(1)(ii) of the Law.”
I’m sure you smart people must notice that the point of the argument has been shifted. The purposes of religious corporations listed in Article 2 are threefold: to spread religious doctrine, perform religious rites and educate and train believers. The issue is whether or not a religious corporation significantly deviates from those three objectives. The article has nothing to do with whether or not a religious corporation is a public interest corporation, as the Minister of Education, Culture, Sports, Science and Technology has just said.
The donations received from believers are used for the purposes of the Religious Corporations Law, which are (1) to spread the religious doctrine: overseas missionary assistance, and (2) to educate and train believers: educational expenses.
Therefore, I think it is clear that the purpose of a religious organisation is to solicit donations for this purpose, so if the State were to argue that this is a significant deviation from the purpose of a religious organisation, I believe they would have a very tall hurdle to overcome.
What I have just explained are the main issues of the main trial and the administrative fine trial. I have pointed out how problematic the government’s claims so far are.
Naturally, there will be counterarguments from the government’s side, and it will probably be a long battle from now on. Of course, it will be a closed trial, so I don’t think it will be possible to give you a complete picture. But still we would like to disclose the claims and counterarguments which will be made throughout the process. Especially when it comes to legal issues like this, I think these are issues that should be discussed publicly, and not behind closed doors. It’s because these are issues related to the Constitution and the rule of law.
That’s all from me.
Featured image above: From the press conference at the national headquarters of the Family Federation of Japan in Shibuya, Tokyo 16th October 2023. Photo: Screenshot from the live transmission by FFWPU Japan.