2017.10.04

2017 (Gyo-Fu) 2

Minshu Vol. 71, No. 8

Decision on whether or not a local government whose agency retains documents constitutes the holder of such documents who should serve as the addressee of an order to submit such documents

Case of appeal with permission against the court of second instance’s decision to change a decision to dismiss a petition for an order to submit documents

Decision of the Second Petty bench, dismissed

Takamatsu High Court, Decision of March 24, 2017

A local government whose agency retains documents constitutes the holder of such documents who should serve as the addressee of an order to submit such documents.

Articles 219 and 220, Article 221, paragraph (1) and Article 223, paragraph (1) of the Code of Civil Procedure



Code of Civil Procedure



Article 219 Documentary evidence shall be offered by submitting a document or requesting the court to order the holder of a document to submit such document.



Article 220 In the following cases, the holder of the document may not refuse to submit the document:

(i) Where a party personally possesses the document that he/she has cited in the suit.

(ii) Where the party who offers evidence may make a request to the holder of the document for the delivery or inspection of the document.

(iii) Where the document has been prepared in the interest of the party who offers evidence or with regard to the legal relationships between the party who offers evidence and the holder of the document.

(iv) In addition to the cases listed in the preceding three items, in cases where the document does not fall under any of the following categories:

(a) A document stating the matters prescribed in Article 196 with regard to the holder of the document or a person who has any of the relationships listed in the items of said Article with the holder of the document

(b) A document concerning a secret in relation to a public officer's duties, which is, if submitted, likely to harm the public interest or substantially hinder the performance of his/her public duties

(c) A document stating the fact prescribed in Article 197, paragraph (1), item (ii) or the matter prescribed in Article 197, paragraph (1), item (iii), neither or which are released from the duty of secrecy

(d) A document prepared exclusively for use by the holder thereof (excluding a document held by the State or a local public entity, which is used by a public officer for an organizational purpose).

(e) A document concerning a suit pertaining to a criminal case or a record of a juvenile case, or a document seized in these cases



Article 221
(1) A petition for an order to submit a document shall be filed by clarifying the following matters:

(i) The indication of the document

(ii) The purport of the document

(iii) The holder of the document

(iv) The facts to be proven by the document

(v) The cause of the obligation to submit the document



Article 223
(1) The court, when it finds that a petition for an order to submit a document is well-grounded, shall make an order to the effect that the holder of the document should submit the document. In this case, if the document contains any part which is found to be unnecessary to be examined or which cannot be found to be subject to the obligation to submit, the court may order submission of the document excluding such part.

The appeal is dismissed.

The cost of appeal shall be borne by the appellant.

I. Of the reasons for appeal filed by the counsel for the appeal, MIYAZAKI Koji, the point concerning the holder of the documents



1. According to records, the circumstances of this case are as described below:

(1) The appellee, a resident of Kagawa Prefecture (hereinafter, “Prefecture” or “Prefectural”), has filed a lawsuit as the primary suit (Takamatsu District Court 2015 (Gyo-U) No. 11) to seek, under Article 242-2, paragraph (1), item (iv) of the Local Autonomy Act, restitution of unjust enrichment in a certain amount from certain members of the Prefectural assembly to the Prefectural governor, on the grounds that such part of the funds for political activities received by these members in fiscal year (FY) 2013 as is equivalent to the aforementioned amount was allegedly spent in violation of the applicable criteria for use.

In this case, the appellee, assuming that the appellant, which is the local government to which the chairman of the Prefectural assembly belongs, is the holder of the documents listed in Document List 1 shown in the exhibit to the exhibit, “Petition for Immediate Appeal,” to the decision of prior instance (all of which documents are copies of receipts; hereinafter, the “Receipts”), out of the copies of receipts and accompanying materials related to the spending of the funds for political activities for FY 2013 submitted to the chairman of the Prefectural assembly from its members, filed a petition for an order to submit the documents. The appellant asserts that the holder of the documents pertaining to the Receipts is the chairman, and that the appellant thus has no obligation to submit the Receipts.

(2) The Kagawa Prefectural Ordinance on the Granting of Assembly Funds for Political Activities (Kagawa Prefectural Ordinance No. 4 of 2001; hereinafter, the “Ordinance”) provides: (i) that funds for political activities shall be granted to the members of the Prefectural assembly, each of who shall submit a report on his/her income and expenditure related to the funds for political activities, accompanied by copies of receipts and other documentary evidence of such expenditure, to the chairman of the Prefectural assembly within 30 days following the day immediately following the last day of each fiscal year (Article 8, paragraph (1)); and (ii) that the chairman shall retain all such reports and copies of receipts and other documents submitted from the assembly members until the day on which five years have elapsed from the day immediately following the last day of the period for which such reports and copies of receipts and other documents shall be submitted (Article 11, paragraph (1)).

(3) The court of prior instance ruled that the appellant was the holder of the documents pertaining to the Receipts, and ordered that, out of the Receipts, those whose issuer was a corporation or an organization (excluding the portion in which the seal impression evidencing the receipt appears and the portion/s, in which the name/s of the person/s in charge other than the representative appear) should be submitted by the appellant, while dismissing the rest of the petition.

2. (1) The court, when it finds that a petition for an order to submit a document is well-grounded, shall make an order to the effect that the holder of the document should submit the document (Article 223, paragraph (1) of the Code of Civil Procedure). Such an order to submit the document imposes on the holder of the document the obligation to submit the document to the court. In cases where a local government’s agency holds the document, the local government -- since it is the entity which has the rights and obligations involved in the activities of such agency -- should be deemed to be in a legal position where, by serving as the addressee of the order to submit the document, it is obligated to submit the document to the court and is allowed to submit the document in accordance with such obligation. Therefore, with respect to a document retained by a local government’s agency, the local government should be regarded as the holder of the document who should serve as the addressee of an order to submit the document.

(2) In this case, it is obvious that the chairman is the person who represents the assembly as the parliamentary body of the local government and, as such, an agency who belongs to the appellant, which is the local government. Under these circumstances, the chairman received the Receipts from the relevant members of the assembly and has retained the Receipts, in accordance with the Ordinance. With respect to the Receipts retained by the chairman, therefore, the appellant, which is the local government to which the chairman belongs, constitutes the holder of the documents who should serve as the addressee of the order to submit the documents.

Let us add that, while the primary suit of this case is the lawsuit filed against the Prefectural governor as an executive agency under Article 242-2, paragraph (1), item (iv) of the Local Autonomy Act, the fact that the said item provides that such a lawsuit should be filed against an executive agency or official of the relevant ordinary local government does not affect the decision described above.

(3) For the above reasons, the decision by the court of prior instance that the appellant constitutes the holder of the documents including the Receipts is acceptable as legitimate. The appellant’s reasons for appeal are unacceptable.

II. Other Reasons for Appeal

The rulings of the court of prior instance on the other points disputed by the appellant are acceptable as legitimate. The appellant’s reasons for appeal are unacceptable.

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

Justice KANNO Hiroyuki

Justice ONUKI Yoshinobu

Justice ONIMARU Kaoru

Justice YAMAMOTO Tsuneyuki