Noticeable Judicial Precedent (Civil Procedure Law)

Trend of Recent Precedents for Civil Procedure Laws

Assistant Professor Hiroyoshi KAWANAKA
(Research Staff, Faculty of Law)
(on 29 February 2012)


     I will introduce some remarkable precedents out of the recent precedents by the Supreme Court concerning Civil Procedure Laws.

     The first one is the judgment by the Grand Bench of the Supreme Court on January 20, 2010 (64 (1) MINSHU 1), regarding expansion of the obligation to explain and the so-called gObligation of Identifying the Legal Aspecth. In this case, the party did not allege whether there was another means to resolve the unconstitutionality. The court did not exercise its authority to ask for an explanation regarding this point either. In this respect, the Supreme Court stated the following: "It is obvious that there is another possible means to resolve the unconstitutionality of the issue whether the party alleges it or not. However, if the fact of this case is judged illegal, the court was required to judge properly whether there was another reasonable and realistic means to resolve the unconstitutionality or exercise the authority to ask for an explanation from the party." This admitted the so-called "Obligation of Identifying the Legal Aspect" so that this is remarkable together with the judgment by the Supreme Court on October 14, 2010 (235 SAISHU-MIN1) that admitted the expansion of the obligation to provide an explanation.

     The next one is the judgment by the Supreme Court on June 29, 2010 (64 (4) MINSHU 1235), regarding the method of compulsory execution by the title of obligation against the so-called association without legal entity to hold rights. The Supreme Court indicated its opinion that the obligee should submit an application for compulsory execution accompanied by the judgment confirming that the real property is possessed by all members of the association in common, in addition to an authenticated copy of the title of obligation in case the compulsory execution is carried out against the real property possessed by all members of the association in common, and the real property is registered in the name of a third party for the association. The decision by the Supreme Court on February 9, 2011 (65 (2) MINSHU 665), regarding a similar case of temporary attachment indicated the similar idea. However, differently from the former case, it is characteristic that the document proving the fact was considered and the judgment was not necessarily required.

     Furthermore, in case the obligee seizes the obligor's deposit claim, the decision was made by the Supreme Court on September 20, 2011 (1931 KINYU-HOUMU JIJO 32), regarding the issue of how to specify the subject of seizure. The Supreme Court decided that, even though it was unknown at which branch the account of the deposit claim was located, the way to specify ranking on all branches of a financial institution would not be allowed because it would cause the financial institution to assume a heavy burden. As for this issue, the high court disagreed with the award, so that the range of this judgement by the Supreme Court is attracting attention.