2017.10.10

2016 (Kyo) 46

Minshu Vol. 71, No. 8

Decision on whether or not the delay damages accruing after the date of petition for an order for attachment of claims are included in the scope of claims to which the money received by the creditor in collection of the claims for which attachment was made should be allocated, in a case where the creditor filed such petition in accordance with the practice of the execution court which requires a petition for an order for attachment of claims to state the fixed amount of delay damages that have accrued up to the date of petition as the delay damages contained in the claims sought to be paid

Case of appeal with permission against a decision to dismiss appeal against execution against a decision to dismiss a petition for an order for attachment of claims

Decision of the Third Petty bench, quashed and decided by the Supreme Court

Tokyo High Court, Decision of August 10, 2016

In a case where a creditor filed a petition for attachment of claims in accordance with the practice of the execution court which requires a petition for an order for attachment of claims to state the fixed amount of delay damages that have accrued up to the date of petition as the delay damages contained in the claims sought to be paid and where the creditor received payment of money from a third party debtor in collection of the claims for which attachment was made pursuant to the order for attachment of the claims, the delay damages accruing after the date of petition are included in the scope of claims to which the aforementioned money should be allocated.

Article 155, paragraphs (1) and (2) of the Civil Execution Act and Article 491 of the Civil Code



Civil Execution Act

Article 155
(1) An obligee who has seized a monetary claim may collect the claim when one week has elapsed from the day on which an order of seizure was served upon the obligor; provided, however, that he/she may not receive payment beyond the amount of the claim and execution costs of the obligee effecting a seizure.

(2) When an obligee effecting a seizure has received payment from a third party obligor, his/her claim and execution costs shall be deemed to have been performed to the extent of the amount that has been received.



Civil Code

Article 491
(1) In cases where the obligor should pay the principal as well as the applicable interest and expenses with respect to one or more obligation(s), if the person who must perform tenders any performance which is not sufficient to extinguish such obligation in its entirety, such performance must be allocated first to the expense, and then to the interest and principal, in this order.

(2) The provision of Article 489 shall apply mutatis mutandis to the cases set forth in the preceding paragraph.

The decision in prior instance is quashed and the decision of the first instance is revoked.

This case is remanded to the Tokyo District Court.

Reasons for appeal filed by the appellant



1. In this case, the appellant filed a petition for an order for attachment of claims as compulsory execution under the title of obligation with the indication of the appellant’s monetary claim against the appellee for payment of a principal and the delay damages thereon accruing up to full payment. The point at issue is whether or not the money received in collection of the claims for which attachment was made (hereinafter, the “Collected Money”) pursuant to the order for attachment of the claims which had already been issued as compulsory execution under the aforementioned title of obligation (hereinafter, the “Attachment Order”) should be allocated not only to the delay damages that have accrued up to the date of petition but also to those accruing after the date of petition which were not stated as a claim sought to be paid in the petition for the Attachment Order.

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

(1) On January 12, 2016, the appellant filed with the Tokyo District Court a petition for attachment of claims in which the claims sought to be paid and the claims for which attachment was sought were as follows, by designating the appellee and Arakawa Ward as the debtor and the third party debtor, respectively. On January 20, 2016, the Attachment Order was issued.

a. Claims sought to be paid: The principal, delay damages and execution expenses indicated in the authenticated copy of the final and binding judgment of the Tokyo Summary Court, 2015 (Ha) No. 21392, on the Case Seeking Compensation, etc. (hereinafter, the “Title of Obligation”), in a total amount of 1,179,934 yen.

b. Claims for which attachment was sought: Of the appellee’s claims for long-term care benefits, etc. to be paid from Arakawa Ward, the portion up to the amount of the claims sought to be paid described above.

(2) The Title of Obligation was for payment of the principal and the delay damages thereon accruing up to full payment. In the petition for the Attachment Order, however, the delay damages stated by the appellant as constituting the claims sought to be paid were in the fixed amount of the delay damages that had accrued up to the date of such petition (hereinafter, the “Date of Petition”). This was in accordance with the Tokyo District Court’s practice which required a petition for an order for attachment of claims to state the fixed amount of delay damages that have accrued up to the date of petition as the delay damages contained in the claims sought to be paid (hereinafter, the “Practice”), so that the third party debtor does not have to bear the burden of calculating the amount of delay damages.

(3) During the period from February 22, 2016 to March 31, 2016, the appellant received from Arakawa Ward, in four installments, payment of the amount equivalent to the claims sought to be paid as describe in (1) a. above (i.e., the “Collected Money”), in collection of the claims for which attachment was sought pursuant to the Attachment Order.

(4) On April 11, 2016, the appellant filed a petition in the court of first instance for an order for attachment of claims in which the claims sought to be paid and the claims for which attachment was sought were as follows, by designating the appellee and Arakawa Ward as the debtor and the third party debtor, respectively (hereinafter, the “Petition”).

a. Claims sought to be paid: Of the claims indicated in the Title of Obligation, the balance of the principal, the delay damages accruing after the final payment date, and the execution expenses, all calculated by assuming that the Collected Money was allocated also to the delay damages accruing after the Date of Petition until each of the dates of payment as mentioned in (3) above, in a total amount of 16,797 yen.

b. Claims for which attachment was sought: Of the appellee’s claims for long-term care benefits, etc. to be paid from Arakawa Ward, the portion up to the amount of the claims sought to be paid described above.

3. The court of prior instance concluded that the Petition should be dismissed, ruling as follows:

Since the appellant stated the respective fixed amounts of the principal, the delay damages that had accrued up to the Date of Petition, and the execution expenses as the claims sought to be paid in the petition for the Attachment Order in accordance with the Practice, it should be understood that the Collected Money should not be allocated to the delay damages accruing after the Date of Petition. Therefore, the Petition is not acceptable as it is based on the assumption that the Collected Money was allocated also to the delay damages accruing after the Date of Petition.

4. However, the conclusion of the court of prior instance described above is not acceptable, for the following reasons.

(1) Compulsory execution of a monetary claim prohibits by attachment the third party debtor, whose payment to the debtor should have originally sufficed, from making payment to the debtor and imposes on the third party debtor such obligations as making payment to the attaching creditor or making a deposit with an official depository. Consideration must thus be given to the burden on the third party debtor in terms of procedure. The Practice is reasonable as a way to give consideration for the purpose of preventing, by fixing the amounts of the claims sought to be paid, a situation from occurring where the third party debtor does not know the amount to be paid upon collection by the attaching creditor without calculating by himself the amount of the delay damages contained in the claims sought to be paid (see Supreme Court, 2008 (Ju) No. 1134, Judgment of the Third Petty bench of July 14, 2009, Minshu Vol. 63, No. 6, p. 1227). The creditor who has a title of obligation for payment of a principal and the delay damages thereon accruing up to full payment is originally entitled to seek the issuance of an order for attachment of claims in which the delay damages accruing up to full payment of the principal are contained in the claims sought to be paid and to receive payment of the amount equivalent to the principal indicated in the title of obligation and the delay damages thereon accruing up to such full payment. Therefore, the creditor who filed a petition for an order for attachment of claims in accordance with the Practice is understood as having accepted that the delay damages contained in the claims sought to be paid are stated as the fixed amount that has accrued up to the date of petition to the extent that such consideration is given to the burden of the third party debtor as described above.

Based on the above, the creditor who filed a petition for an order for attachment of claims in accordance with the Practice no longer needs to give consideration to the burden on the third party debtor at the stage of allocation of the money received in collection of the claims sought to be paid pursuant to the order for attachment of the claims. It is therefore reasonable to understand that the creditor reasonably expects that the aforementioned money is allocated to the delay damages accruing up to full payment. The fact that the creditor filed a petition for an order for attachment of claims in accordance with the Practice should not immediately constitute a ground for excluding the delay damages accruing after the date of petition from the scope of claims to which the aforementioned money should be allocated.

Therefore, if a creditor who filed a petition for an order for attachment of claims in accordance with the Practice receives payment of money from a third party debtor in collection of the claims sought to be paid pursuant to the order for attachment of the claims, it is reasonable to understand that the delay damages accruing after the date of petition are included in the scope of claims to which the aforementioned money should be allocated.

(2) Let us apply the above discussion to this case. Since the appellant filed a petition for the Attachment Order in accordance with the Practice, the delay damages accruing after the Date of Petition should be included in the scope of claims to which the Collected Money should be allocated.

5. The ruling of the court of prior instance, which is different from the above discussion, contains a violation of law that obviously affects its judgment. The appellant’s reasons for the petition are well-grounded, and the decision of prior instance should inevitably be quashed. Therefore, the decision of the first instance, which dismissed the Petition, shall be revoked, and this case shall be remanded to the court of first instance.

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

Justice YAMASAKI Toshimitsu

Justice OKABE Kiyoko

Justice KIUCHI Michiyoshi

Justice TOKURA Saburo

Justice HAYASHI Keiichi