Section 4: Supplementary Discussion: Theory of Technical Standards
(1) At present, many technical standards are established for the purpose of enforcement of administration. These standards are in the form of laws and regulations but some of them are formulated as standards issued by a national committee. The forms of laws and regulations include statute, Cabinet Order, ministerial ordinance, announcement, and circular (note that the lower level regulations do not specify legal justification). An example of standards issued by a natioanl committee is the guidelines for examination of reactor locations (which provide the criteria for individual examinations within the area in which the relevant national committee is allowed to exercise its discretion) that the Atomic Energy Commission uses for examination prior to expressing its opinion regarding granting license to installation of a nuclear reactor (which actually means investigation in response to request for advice regarding granting license to installation of a nuclear reactor which is to be given by the Prime Minister).
In scientific law suits in which the legal issue is the validity of specialized technical standards used for judgment for whether installation of a nuclear power plant is to be licensed, the idea of "uncertainty law" is often proposed when discussing to what extent the examination and judgment by the judicial power affects the discretion made by the administrative office. This idea originated in Germany: the principles of essential theory have functioned, according to which the Federal Parliament shall make its own decision regarding essential matters and shall not entrust the administrative power with the decision; under these circumstances, when the legislator is, regarding the comprehensive standards stipulated by the Atomic Energy Act, forced to an invalid law or to totally abandon discipline, it is difficult from the viewpoint of legislative procedures to dare to make such forced condition effective by a law; and as a result of this, the idea of uncertainty law becomes accepted. (Regarding the theory of technical standards, the great concern is what examination rights the Court is allowed to have under the idea of uncertainty law when the Court examines a discretion made by the administrative office for specialized technology. Takagi's report described later addresses its primary theme of introducing and reviewing several theories, e.g. "theory of accepting professionals' opinions which have been expressed in advance," which restrict the Court's right to overall examination of technical standards issued by the administrative bureau in Germany.)
Various discussions have been performed to determine, under the "idea of uncertainty law," if the Court's judgment can affect the discretion made by the administrative office for specialized technology. The following theories, among others, have been proposed: a "theory of substituting substantial judgment" according to which the Court is allowed to conduct a complete examination to such an extent as affecting or even substituting the administrative judgment; a "theory of accepting professionals' opinions which have been expressed in advance" which was proposed along with subsequent installation of scientific facilities; and a "theory of supporting the administrative judgment" which provides the basis that the administrative power has the authority of making a final judgment. When looking at academic views in Japan, there are two representative ones described below. A "theory of procedural examination of substantiality": "Licensing installation of a nuclear reactor is characterized by a comprehensive judgment by assuming that there may exist in the future uncertain and probability-oriented events which are based on inference from knowledge and findings in highly advanced and specialized areas of technology, by taking into account various factors such as the utility of a nuclear reactor, and by evaluating all of these elements to determine what is really necessary for the future. Licensing installation of a nuclear reactor is a highly specialized technical judgment and at the same time, is regarded as a "political decision" which will affect the formation of the future society. We have to accept that the licensing is not a purely legal judgment based on facts which are objectively established. ¡ÄAccordingly, when considering these discretionary elements that licensing installation of a nuclear reactor has, we can consider it reasonable that the Court avoided thorough examination of substantiality according to the theory of substituting substantial judgment. ¡ÄAs a matter of course, if the juridical examination has these limitations, then strict considerations are necessary to prevent arbitrary judgment by the administrative power or self-righteous decision under the name of professional technology. ¡ÄWhen looking at the safety examination for nuclear reactors, the current system is based on the absolute reliance on investigational examination and judgment from the viewpoint of specialized technology which is made by the Atomic Energy Commission and the Nuclear Reactor Safety Specialty Committee, and accordingly, whether or not actual examination performed was in accordance with the spirit of the law should be strictly examined by the juridical power." (Refer to "Ikata Nuclear Plant Case" authored by Naohiko Harada, Extra Issue of Jurisuto No. 126.) A "theory of supporting the administrative judgment": "The defendant shall be liable for positively proving the safety of the nuclear reactor and its proof of the reasonableness of exercising its discretionary power was not sufficiently enough. It is enough for the plaintiff to present doubts or anxiety about the nuclear reactor, and the defendant must present evidence or explanation sufficient to eliminate these doubts. However, since the Court is not in a position of making a final judgment regarding the safety of the nuclear reactor on the basis of its own findings, the Court should take a neutral position to examine if the defendant's explanation is sufficient to eliminate the plaintiff's doubts. If it is difficult to judge which is right, the defendant's claim is accepted according to the German theory of supporting the administrative judgment." (Refer to "Legal Issues Regarding Nuclear Power Plant Law Suits" authored by Yasutaka Abe, Jurisuto No. 668.) It is understood that the background behind these ideas is that if the Court is requested to make such judgment, it should be a great burden to the Court and that elements affecting such judgment are not only objective technical matters in specialized areas but also policy-related matters. (In addition, regarding the method of stepwise regulation on nuclear reactor facilities, the Supreme Court made its judgment regarding a law suit of Fukushima No. 2 Nuclear Power Plant on October 29, 1992.)
The basis of these ideas is the judgment made by the Supreme Court regarding a law suit of Ikata Nuclear Power Plant, which showed the following views: the safety of nuclear reactor facility should be evaluated from many different angles and in a comprehensive manner, by taking into account the engineering safety of the nuclear reactor concerned, any other relevant social conditions and engineering competency of the entity that intends to install the nuclear reactor concerned; when evaluating the safety, matters related to foreseeability of future events are also considered and it is therefore evident that the evaluation requires an overall judgment based on most recent and updated and highly advanced scientific and technological knowledge and findings in diverse areas; considering these features peculiar to the evaluation of the safety of nuclear reactors, it is reasonable that regarding determination if installation of a nuclear reactor conforms to specific standards, the Prime Minister's reasonable judgment is accepted since the judgment is made by respecting opinions of the Atomic Energy Commission, consisting of individuals of learning and experience in their own specialized areas, which result from scientific and technological knowledge and findings in specialized areas. The Supreme Court adjudicated as follows: "In the law suit which was filed to call for cancellation of the granted licensing of installation of the nuclear reactor and in which the legal issue is whether or not the judgment made regarding the safety of the nuclear reactor was correct, examination and judgment by the Court should be based on its determination if there is any unreasonable point in the judgment made by the administrative office, the defendant, on the basis of the investigational examination and judgment from the viewpoint of specialized technology which is made by the Atomic Energy Commission and the Nuclear Reactor Safety Specialty Committee. If, in light of the currently available level of science and technology, any unreasonable points are found in the examination standards used for the aforementioned investigational examination, or errors or shortcomings which cannot be looked over are found in the process leading to the investigational examination and judgment made by the Atomic Energy Commission and the Nuclear Reactor Safety Specialty Committee that the nuclear reactor facility concerned conforms to the aforementioned specific standards, and the judgment made by the defendant administrative office was based on these inappropriate situations, it should be judged that the aforementioned judgment by the defendant administrative office has unreasonable points and accordingly, it should be interpreted that the disposition of granting license to installation of the nuclear reactor concerned on the basis of the unreasonable judgment is illegal" (refer to the judgment made by the Supreme Court on October 29, 1992). In other words, if there were no such unreasonable points, the discretionary judgment by the administrative office should be respected. As such, both the Court's views and academic views are currently against the theory of substituting substantial judgment" according to which the Court is allowed to conduct a complete examination to such an extent as affecting the administrative judgment.
For the reasons why the idea of uncertainty law is employed, the Supreme Court explains that "as far as the evaluation or examination ¡Ä.. should require an overall judgment based on most recent and updated and highly advanced scientific and technological knowledge and findings in diverse areas, and because of continuous and never-stopping progress and advancement in science and technology, stipulating by law specific and detailed standards for the safety of nuclear reactor facility is not only difficult but also inappropriate since such stipulation cannot immediately cope with any change in the level of updated science and technology." In Germany also, two situations are pointed out in which it is hard to stipulate technical standards by laws: <1> when the subject of regulation rapidly changes; and <2> when details matters of relevant technology are required (refer to "Technical Standards and Administrative Procedures" authored by Mitsuru Takagi). However, when regulating science and technology itself, as discussed in (2) below, it is possible that standards other than those established as knowledge and findings generally accepted by the society may be used and it is necessary to investigate to what extent the Court is allowed to examine the administrative discretion from new different angles.
(2) In recent years, there has emerged a new category of technical standards to which the laws or the orders entrusted by the laws are not applicable. Examples of this category are, as previously discussed, the available level of technology in connection with the Product Liability Act and the level of available medical care in relation to the medical affairs law. These levels cover a wide scope of areas and in addition, each technology progresses so rapidly that a specific technology standard cannot be established. The standards regarding life sciences that the authors have discussed in the Report are a very good example of this category of standards. The life sciences related standards may contain undefined scientific knowledge and findings which cannot be regarded as those generally accepted by the society.
Takagi's report entitled "Technical Standards and Administrative Procedures" investigates in detail "technical standards" by looking at law suits regarding nuclear power plants and air pollution control standards. In this report, he states as follows: "the properties of specialized technology that the administrative power possesses, which is claimed as elements justifying administrative discretion or administrative legislation, have two different aspects, i.e. one is expertise and technical knowledge in specialized technology areas, and the other is expertise providing the basis of political and administrative judgment which will not be confined to application of individual laws or regulations. The former is non-legal expertise and technical knowledge, which is in nature accumulated in a private area and is not always monopolized by the administrative power. The latter is knowledge which functions as a social management technology to support the administrative power and represents the most remarkable characteristic of the administrative power in comparison with the Court." Takagi thus describes that the administrative office's "judgment from the viewpoint of specialized technology," which is a legal judgment incorporating the non-legal expertise, contains "political judgment" and "value judgment." The judgment should therefore be expressed as engineering judgment and is closer to a judgment by engineers than one by scientists. His point is similar to Harada & Abe's report introduced above since both the reports indicate the two characters of standards. However, differences in concept between engineering judgment and scientific judgment are not clear in his report and in addition, it seems to us that his view is based on the assumption that there are some knowledge and findings already established as those generally accepted by the society.
Even though the existing standards may be engineering standards, the standards, etc. related to life sciences that the authors have discussed in the Report surely have the nature that allows the name of scientific standards. For example, as previously discussed about the foreseeability in connection with the Product Liability Act, the duty of care is required to perform comprehensive retrieval of past literature prior to manufacturing of a drug and in reality, science and technology related information gathering systems are operated in such a manner as meeting the demands of researchers. Considering the fact that if a researcher failed to fulfill the duty of care and did not retrieve relevant literature, then he/she is liable for the negligence, and on the other hand, if a researcher retrieved relevant literature, then he/she can escape from liability, we should regard this as not an engineering judgment but a scientific judgment. Since there is a possibility that standards based on knowledge and findings established as the common ideas of society may not allow a person to escape from liability, such standards are not written ones but are affected by currently available science and technology related activities (e.g. research activities and published reports). Such standards substantially differ from the conventional standards. The concepts regarding the available level of technology in connection with the Product Liability Act and the available level of medica care in connection with the medical affairs law have already incorporated ideas close to scientific level. If regulation was imposed on research, it would be further closer to the academic areas and would correspond to the "level of medicine as a study" when comparing the "level of medicine as a study" and the "level of practical medical care" introduced in the section regarding the available level of medical care (as previously described, it is accepted by the common view and precedent cases that the validity of medical care is based on the "level of practical medical care").
In recent years, scientific standards are formulated by considering not only safety but also ethics and social validity. Under these circumstances, standards are prepared after listening to not only professionals specialized in specific areas but also the ordinary citizen. It is therefore predicted that without involvement by the administrative power (e.g. conducting surveys of public opinion, holding public hearings or symposiums, setting up opportunities to hear from the ordinary citizen prior to formulation of standards), an increasing number of standards could not be formulated. This is not the accumulation of expertise in private areas nor the monopolized expertise by the administrative power described by Takagi. The standards formulated in the manner above may be considered to be legally effective as social norms since the Court hardly presents these standards merely by collecting scientific reports and making own judgment from the collected information.
In any event, assuming that the conventional technology standards <1> have been expressly stated on the presumption that these standards are established as the common views of society (e.g. "already standardized medical care among professional care individuals" according to the concept of the available level of medical care), <2> contain elements constituting political judgment which incorporates expertise, and <3> have the nature that these standards are monopolized by the administrative power, new standards regarding life sciences, etc. which will be required in the future, e.g. those for application of cloning technology, should have the following aspects: <1> these standards are related to the whole science and technology activities involving uncertain and undefined scientific knowledge and findings (and therefore, are hardly documented); <2> these standards strongly indicate the existence of ethical judgment based on specialized knowledge; and <3> because of the characteristics described above, these standards can be formulated by the administrative power that mediates among professionals specialized in specific areas, researchers and the society to confirm the social order. In terms of character, the conventional standards contrasts strikingly with the new standards. These differences between the two types of standards in their contents will inevitably give new aspects to the social disciplinary character of standards.
In light of the concepts of limiting the range of examination and judgment by the Court on the basis of the idea of "uncertainty law" that are indicated by the judgments made by the Supreme Court and academic views, we found a similar concept of limiting examination by the Court in the judgment made by the Mito District Court regarding gene recombination guidelines described at the beginning of this section. We might learn from this judgment that behind the judgment, the Court considers the existence of some norms (e.g. public policy or good morals, standards for medical care acts) which should be taken into account during a trial, and these norms might correspond to legal norms containing the idea of uncertainty law.