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2015 (Ju) 1036

2016.10.18
2015 (Ju) 1036
Minshu Vol. 70, No. 7
Judgment concerning whether or not an act of refusing to provide information in response to an inquiry made under Article 23-2, paragraph (2) of the Attorney Act constitutes a tort against the bar association that has made the inquiry
Case to seek damages
Judgment of the Third Petty Bench, partially quashed and decided by the Supreme Court, partially quashed and remanded
Nagoya High Court, Judgment of February 26, 2015
An act of refusing to provide information in response to an inquiry made under Article 23-2, paragraph (2) of the Attorney Act does not infringe the legally protected interest of a bar association that has made the inquiry and thus it does not constitute a tort against said bar association.

(There are concurring opinions.)
Article 23-2 of the Attorney Act, Article 709 of the Civil Code



Attorney Act

Article 23-2

(1) An attorney may request the bar association to which he/she belongs to make inquiries to public offices or public or private organizations for information necessary for a case to which he/she has been retained. The bar association may refuse the request if it finds such request to be inappropriate.

(2) A bar association may, pursuant to the request set forth in the preceding paragraph, request public offices or public or private organizations to provide necessary information.

Civil Code

Article 709 A person who has intentionally or negligently infringed any right of others, or legally protected interest of others, shall be liable to compensate any damages resulting in consequence.
1. The judgment in prior instance is quashed with respect to the part for which the appellant of final appeal lost the case.

2. The appeal filed by the appellee of final appeal is dismissed with respect to the part mentioned in the preceding paragraph.

3. The case is remanded to the Nagoya High Court with respect to the part concerning the claim for a declaration of the obligation to provide information.

4. The appellee of final appeal shall bear the cost of the appeal and the cost of the final appeal with respect to paragraphs 1 and 2.
Concerning Reason III for petition for acceptance of final appeal argued by the appeal counsel, NISHIMA Toyota, et al.

1. In this case, the appellee, which is a bar association that has made an inquiry to Company C (a stock company; hereinafter referred to as the "Company") pursuant to Article 23-2, paragraph (2) of the Attorney Act (this inquiry is hereinafter referred to as an "Article 23 inquiry"), filed against the appellant, which has taken over the Company through an absorption-type merger, a principal claim to seek damages in tort by alleging that the Company's refusal to provide information in response to the Article 23 inquiry has infringed the appellee's legally protected interest, and an alternative claim to seek a declaration that the appellant has an obligation to provide information in response to the Article 23 inquiry.

2. The outline of the facts determined by the court of prior instance is as follows.

In February 2010, P filed an action against Q to seek damages in tort, alleging that P has been defrauded of money by Q under the pretext of the purchase price of shares. In September 2010, P reached a judicial settlement with Q to the effect, inter alia, that Q would pay damages to P.

In September 2011, in order to prepare for enforcing compulsory execution against Q, the attorney representing P made a request to the appellee, a bar association to which the attorney belongs, to make an Article 23 inquiry to the Company pursuant to Article 23-2, paragraph (1) of the Attorney Act, for information including whether or not a notification of change of address has been submitted with regard to postal items addressed to Q, and Q's new address (residence) stated in the notification of change of address, if such notification has been made.

Having found this request to be appropriate, the appellee made an Article 23 inquiry to the Company in September 2011 concerning the information mentioned above. However, in October 2011, the Company refused to provide information in response to this inquiry.

3. Given the facts mentioned above, the court of prior instance partially upheld the appellee's principal claim, holding as follows with regard to whether or not the appellee has any interest that is legally protected.

The authority to make an Article 23 inquiry is vested only in bar associations for the purpose of ensuring proper operation of the inquiry system, and bar associations, as part of their own business, are to exercise such authority while determining at their own discretion whether or not each request from an attorney is appropriate in light of the purpose of the inquiry system. Considering that bar associations have made efforts to operate the Article 23 inquiry system appropriately and thereby realized citizens' rights, it should be construed that an act of refusing to provide information in response to an Article 23 inquiry infringes the legally protected interest of the bar association that has made the Article 23 inquiry and thus it constitutes a tort against said bar association.

4. However, we cannot affirm the holding of the court of prior instance mentioned above, on the following grounds.

The Article 23 inquiry system has been established for the purpose of facilitating investigation of facts that attorneys need to conduct in order to handle cases for which they have been retained. It is construed that public offices or public or private organizations that have received an Article 23 inquiry should provide information regarding the matters subject to the inquiry, unless there are reasonable grounds to refuse to do so. In consideration of the possibility that an Article 23 inquiry would have a material effect on the interest of these public offices or public or private organizations, Article 23-2 of the Attorney Act vests the authority to make an inquiry in bar associations and leaves it to the bar associations to determine whether or not each request from an attorney is appropriate in light of the purpose of the system, with a view to ensuring proper operation of the system. Assuming so, bar associations are vested with the authority to make Article 23 inquiries only for the purpose of ensuring appropriate operation of the system, and bar associations are not deemed to have any interest to be legally protected in receiving information based on its Article 23 inquiry.

Consequently, it should be said that an act of refusing to provide information in response to an Article 23 inquiry does not infringe the legally protected interest of the bar association that has made the Article 23 inquiry and thus it does not constitute a tort against said bar association.

5. The determination of the court of prior instance that goes against the above contains violation of laws and regulations that apparently affects the judgment. The judgment in prior instance should inevitably be quashed with respect to the part for which the appellant lost the case. According to the explanation given above, the appellee's principal claim is groundless, and the judgment in first instance that dismissed this claim is justified, and hence the appeal filed by the appellee should be dismissed with respect to the abovementioned part. On the other hand, the appellee's alternative claim for a declaration of the appellant's obligation to provide information needs to be further examined, and hence we remand the case to the court of prior instance.

Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices. There are concurring opinions by Justice OKABE Kiyoko and Justice KIUCHI Michiyoshi, respectively.

The concurring opinion by Justice OKABE Kiyoko is as follows.

I am in agreement with the court opinion holding that a bar association is not deemed to have any interest to be legally protected in receiving information in response to its Article 23 inquiry. However, I would like to give some comments with regard to matters including the relationship between the obligation to provide information in response to an Article 23 inquiry and the confidentiality obligation under the Postal Act.

As explained by the court of prior instance, the purpose of the Article 23 inquiry system is to facilitate investigation of facts and discovery and collection of evidence that attorneys need to conduct in order to handle cases for which they have been retained, thereby contributing to proper resolution of cases. Public offices or public or private organizations that have received an inquiry have an obligation under public law to provide information to the bar association that has made the inquiry. However, these public offices or public or private organizations are allowed to refuse to provide all or part of the relevant information if there are reasonable grounds to refuse to do so.

Information concerning a notification of change of address does not fall within the scope of secrecy of means of correspondences or communications but it falls within the scope of "another person's secret obtained in connection with postal items" as referred to in Article 8, paragraph (2) of the Postal Act, and the appellant has an obligation to keep such information confidential. In that case, in consideration of the purpose of the obligation to provide information in response to an Article 23 inquiry, there is no ground to consider that said obligation to provide information should always be given priority over the confidentiality obligation under the Postal Act. It is rather necessary to compare, for each matter subject to an inquiry, the interest of the party making the inquiry and the interest of the party seeking to keep the matter secret, and determine whether or not the refusal to provide information is justified.

Considering that the obligation to provide information in response to an Article 23 inquiry is an obligation under public law, it can be said that the breach of this obligation is not necessarily equivalent to a tort under the Civil Code, but there may be the possibility that the breach of the obligation to provide information would constitute a tort if any interest to be legally protected is infringed due to the breach of this obligation without reasonable grounds. However, as mentioned in the court opinion, since bar associations do not have such legally protected interest in the first place, there could be no tort against a bar association even if there are no reasonable grounds for the refusal to provide information.

The concurring opinion by Justice KIUCHI Michiyoshi is as follows.

I am in agreement with the court opinion, but I would like to give some comments concerning the holding that bar associations do not have any interest to be legally protected in receiving information based on an Article 23 inquiry.

The court of prior instance found that an inquiry could infringe an enforceable interest and cause intangible damage, presumably because it aimed to ensure the enforceability of the obligation to provide information in response to an Article 23 inquiry. However, the system of damages in tort is intended to assess in monetary terms the damage that has actually been inflicted on the victim and force the party at fault to compensate for such damage, thereby covering the disadvantage that the victim has suffered and restoring the status quo as if there had been no tort, and thus it is not designed to make any obligation enforceable. Ordering the obliged party to pay money with a view to making the obligation enforceable is an action that falls within the scope of indirect compulsory execution, which is one of the means of compulsory execution, and it is different in nature from the system of damages.

Accordingly, the fact that a bar association has been unable to receive information based on its Article 23 inquiry cannot itself be regarded as proof of infringement of its legally protected damage due to a tort.
Justice KIUCHI Michiyoshi

Justice OKABE Kiyoko

Justice OTANI Takehiko

Justice OHASHI Masaharu

Justice YAMASAKI Toshimitsu
(This translation is provisional and subject to revision.)