2017.07.20

2017 (Kyo) 1

Minshu Vol. 71 No. 6

Decision on the burdening of execution costs in a case where the compulsory execution was terminated without achieving its purpose due to such reasons as revocation of a disposition of execution already made

Case of appeal with permission against a ruling to dismiss an appeal against a ruling on the burdening of execution costs

Decision of the First Petty bench, dismissed

Tokyo High Court, Decision of November 29, 2016

Where compulsory execution was terminated without achieving its purpose due to such reasons as revocation of a disposition of execution already made, the burdening of execution costs should be determined by the execution court in accordance with Article 73 of the Code of Civil Procedure as applied mutatis mutandis in Article 20 of the Civil Execution Act

Article 20 and Article 42, paragraph (1) of the Civil Execution Act, and Articles 62 and 73 of the Code of Civil Procedure



Civil Execution Act

Article 20 Except as otherwise provided for, the provisions of the Code of Civil Procedure shall apply mutatis mutandis to civil execution procedures.

Article 42 (1) The costs of compulsory execution that are necessary (hereinafter referred to as "execution costs") shall be borne by the obligor.



Code of Civil Procedure

Articles 62 A court, depending on the circumstances, may have a winning party bear all or part of court costs incurred from any act that is unnecessary for the expansion or defense of his/her right or court costs incurred from any act that was necessary, in light of the progress of the suit as of the time of the act, for the expansion or defense of the opponent's right.

Article 73 (1) If a suit is concluded not by a judicial decision or settlement, the court of first instance, upon petition, shall make an order on the burden of court costs, and a court clerk of that court shall fix the amount to be borne after the order becomes enforceable. The same shall apply where an application for supporting intervention is withdrawn or an objection to supporting intervention is withdrawn.

(2) The provisions of Articles 61 through 66 and Article 71, paragraph (7) shall apply mutatis mutandis to an order on the petition set forth in the preceding paragraph, the provisions of Article 71, paragraphs (2) and (3) shall apply mutatis mutandis to a disposition made by a court clerk on the petition set forth in the preceding paragraph, and the provisions of Article 71, paragraphs (4) through (7) shall apply mutatis mutandis to an objection to such disposition.

The appeal shall be dismissed.

The costs of the appeal shall be borne by the appellant.

Reasons for the appeal filed by the counsels for the appeal, ONO Koji and FUJIWARA Daisuke

1. Article 42, paragraph (1) of the Civil Execution Act defines the costs of compulsory execution that are necessary as “execution costs” and provides that the execution costs shall be borne by the obligor. It is obvious that if compulsory execution is closed after achieving its purpose, the execution costs are to be borne by the obligor in accordance with the said paragraph. In contrast, if compulsory execution is terminated without achieving its purpose due to such reasons as revocation of a disposition of execution already made (Article 40, paragraph (1) of the same act), it is not reasonable, from the viewpoint of fairness, to understand that the execution costs should uniformly be borne by either the obligee or the obligor without taking into account the circumstances leading to the termination of the compulsory execution. It is then considered that Article 42, paragraph (1) of the Civil Execution Act does not provide for the case where compulsory execution is terminated without achieving its purpose, and it should be considered that the same act does not “otherwise [provide] for” (Article 20 of the same act) with regard to the burdening of execution costs in the above case.

Therefore, it is reasonable to understand that where compulsory execution was terminated without achieving its purpose due to such reasons as revocation of a disposition of execution already made, the burdening of execution costs should be determined by the execution court in accordance with Article 73 of the Code of Civil Procedure as applied mutatis mutandis in Article 20 of the Civil Execution Act.

2. Let us apply the above discussion to this case. The procedure for compulsory auction, the petition for which was filed by the adverse party, was revoked as a result of the submission to the execution court of the authenticated copy of the final and binding judgment accepting the claim for action to oppose execution filed by the appellant. The reason for accepting the above claim was that the claims on which the compulsory auction was based were extinguished by the appellant’s deposit of payment with an official depository after a ruling was issued to commence the aforementioned compulsory auction.

Therefore, the execution court which received a petition from the adverse party for a judicial decision under Article 73, paragraph (1) of the Code of Civil Procedure as applied mutatis mutandis in Article 20 of the Civil Execution Act may render a decision that requires the appellant to bear the execution costs of the above compulsory execution in accordance with Article 62 of the Code of Civil Procedure as applied mutatis mutandis in Article 73, paragraph (2) of the same code, by taking into account the circumstances leading to the termination of such compulsory execution.

3. For the above reasons, the ruling of the court of prior instance, which required the appellant to bear the execution costs of the above compulsory execution, is acceptable. The appellant’s reasons for the appeal are unacceptable.

Accordingly, the Court unanimously decides as set forth in the main text.

Justice IKEGAMI Masayuki

Justice OTANI Naoto

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice YAMAGUCHI Atsushi