Amendment of the Civil Execution Act
Assistant Professor, Waseda Law School
(February 20, 2019)
In November 2016, the Civil Execution Act Committee of the Legislative Council began its review of the legal system for civil execution. The committee reported its findings in its “Draft Summary Relating to the Review of the Legal System for Civil Execution” (the “Draft Summary”) in August 2018. The Legislative Council then reported the summary in October of that year and submitted it to the Minister of Justice. In February 2019, the Cabinet approved the proposed amendment, and the amended law is to be enacted in the Diet session of the same year.
The four major points in this amendment are set out below.
2.Property disclosure procedures
The first point is the amendment of regulations on property disclosure procedures. The 2003 amendment of the Civil Execution Act created property disclosure procedures (Civil Execution Act, Chapter 4) that comprise a system for the obligee to obtain information about the obligor’s property to ensure the enforceability of compulsory executions over monetary claims. However, after their creation, these procedures were criticized as ineffective in ensuring the enforceability of compulsory executions and were not widely used.
Given this, procedures to obtain information about an obligor’s property from third parties other than the obligor were implemented as a new property disclosure system. Specifically, procedures have been implemented (a) to obtain information from the registry about land and buildings owned by the obligor, (b) to obtain information from the local government authority or pension service, etc., about the obligor’s claims to payments, and (c) to obtain information from banks, etc., about the obligor’s monetary claims on deposits, etc.
3.Purchases by members of organized crime syndicates
The second point is that regulations have been implemented to restrict members of organized crime syndicates from making purchases in real estate auctions. In recent years, government and citizens have been working together to eliminate organized crime. However, the current Civil Execution Act has no regulations restricting the purchase of real estate on the grounds that the person who submitted the bid is a member of an organized crime syndicate. This has resulted in cases in which organized crime syndicates have used buildings purchased by members at real estate auctions as offices or in which they have resold the real estate that they purchased and made large profits.
The Draft Summary provides the following regulations. First, it imposes an obligation on persons seeking to offer to purchase real estate to declare that they are not members of organized crime syndicates, as a countermeasure to prevent purchasing by members of organized crime syndicates. Second, the execution court must consign the necessary investigations into whether the highest bidder is a member of an organized crime syndicate or the like to the police. Third, if it is revealed that the highest bidder is a member of an organized crime syndicate, the execution court shall issue an order of non-permission of sale.
4.Compulsory execution of the handover of children
The third point is that regulations on the compulsory execution of the handover of children have been implemented. The current Civil Execution Act is silent on the compulsory execution of the handover of children. Current court practice is to apply by analogy provisions on the delivery of movables (Civil Execution Act, Art. 169 ) to procedures for the direct compulsory execution of the handover of children. However, this practice has come in for substantial criticism. Moreover, in 2013, the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction was enforced, and regulations on direct compulsory execution in matters concerning the international handover of children were instituted. Thus, the Civil Execution Act institutes regulations on direct compulsory execution for the domestic handover of children as well.
The Draft Summary provides the following regulations.
First, a petition for the “direct compulsory execution” (which includes direct compulsion and substitute execution under the Civil Execution Act) of the handover of a child cannot be filed until after an order of indirect compulsion has been made. The reason for providing this regulation is that it was thought that having the obligor voluntarily release the child from their custody would be desirable in order to minimize the mental and physical burden that compulsory execution imposes on the child, and accordingly it would be appropriate to conduct indirect compulsion first, because it imposes a lesser mental and physical burden on the child. However, if the obligor is not expected to release the child from their custody despite indirect compulsion or if it is necessary to prevent impending danger to the child, it is possible to file a petition for direct compulsory execution without an order of indirect compulsion.
Next, the executing officer is permitted to convince the obligor, enter the obligor’s residence or other premises, and search for the child there, among other things, to release the child from the obligor’s custody. When doing so, the child does not need to be in that place with the obligor, because if the obligor were required to be present at compulsory execution, he or she would be likely to render the compulsory execution impossible by arbitrarily refusing to be present for compulsory execution.
In addition, the executing officer may use force or request police assistance to eliminate resistance by the obligor or anyone else when the officer performs acts necessary to remove the child from custody. The concepts of “resistance” and “force” in these regulations have the same meaning as “resistance” and “force” in Article 6 of the Civil Execution Act (see Counsellor’s Office, Civil Affairs Bureau, Ministry of Justice, Supplementary Explanation of the Interim Draft concerning the Amendment of the Civil Execution Act, p. 63).
5.Termination of cases of execution against a claim
The fourth point is that the timing of termination of cases of execution against a claim has been clarified. Cases of execution against a claim will terminate when a notice of collection by the obligee effecting a seizure is submitted. However, obligees effecting a seizure often neglect to submit this notice, and the regulations were not clear on when cases of execution against a claim terminate. Given this, the Draft Summary has provided a set time limit on the exercise of the right to collection.
Specifically, the obligee effecting a seizure must notify the execution court if he or she has not received payment once two years have passed from the date when he or she became able to collect on his or her monetary claim (Civil Execution Act, Art. 155 ). If this notice is not given, the execution court may rescind the order for seizure.