2018.04.17

2018 (Kyo) 3

Minshu Vol. 72, No. 2

Decision regarding whether a person who has been using or receiving profits from a building based on a right of lease established after an attachment based on a disposition of delinquency since prior to the commencement of secured real property auction falls under a “person who has been using or receiving profits from the building since prior to the commencement of auction procedures” set forth in Article 395, paragraph (1), item (i) of the Civil Code

Case of appeal with permission against a decision rendered by the court for appeal against a disposition of execution to revoke an order to deliver a real property

Decision of the Third Petty Bench, dismissed

Osaka High Court, Decision of December 20, 2017

In the case where a building on which a right of lease that cannot be asserted against a mortgagee had been established was sold by way of auction of a secured real property, a person who has been using or receiving profits from the building based on such right of lease since prior to the commencement of the auction procedures falls under a “person who has been using or receiving profits from the building since prior to the commencement of auction procedures” set forth in Article 395, paragraph (1), item (i) of the Civil Code, even if such right of lease was established after an attachment based on a disposition of delinquency was conducted.

Article 395, paragraph (1), item (i) of the Civil Code, and Article 83 and Article 188 of the Civil Execution Act



Civil Code

(Suspension of Delivery by Users of Mortgaged Buildings)

Article 395 (1) Any person who uses or receives profits from a building subject to a mortgage by virture of a lease that cannot be asserted against the mortgagee, and who is listed as follows (in the following paragraph referred to as "Mortgaged Building User") shall not be required to deliver that building to the purchaser thereof until six months have elapsed from the time when the purchaser purchased that building at auction:

(i) A person who has been using or receiving profits from the building since prior to the commencement of auction procedures; or



Civil Execution Act

(Delivery Order)

Article 83 (1) An execution court may, upon petition by a purchaser who has paid the price, order an obligor or a possessor of real property to deliver the real property to the purchaser; provided, however, that this shall not apply to a person who is recognized, under the record of the case, to possess the real property based on a title that may be duly asserted against the purchaser.

(2) A purchaser may not file the petition set forth in the preceding paragraph when six months (or, for a purchaser of a building that had been possessed by the mortgaged building user prescribed in Article 395(1) of the Civil Code at the time of the purchase, nine months) have elapsed from the day of payment of the price.

(3) An execution court shall, in the case of issuing an order under the provisions of paragraph (1) to a possessor other than the obligor, interrogate such person; provided, however, that this shall not apply when it is clear, under the record of the case, that such person does not possess the real property based on a title that may be duly asserted against the purchaser or if the execution court has already interrogated such person.

(4) An appeal against a disposition of execution may be filed against a judicial decision on the petition set forth in paragraph (1).

(5) An order under the provisions of paragraph (1) shall not be effective until it becomes final and binding.

(Application Mutatis Mutandis of the Provisions on Execution against Real Property)

Article 188 The provisions of Article 44 shall apply mutatis mutandis to exercise of a real property security interest, the provisions of Section 2, Subsection 1, Division 2 of the preceding Chapter (excluding Article 81) shall apply mutatis mutandis to a secured real property auction, and the provisions of Division 3 of said Subsection shall apply mutatis mutandis to execution against earnings from secured real property.

The appeal is dismissed.

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

Reasons for the appeal filed by the appellant

In the case where a building on which a right of lease that cannot be asserted against a mortgagee had been established was sold by way of secured real property auction, it is appropriate to understand that a person who has been using or receiving profits from the building based on such right of lease since prior to the commencement of the auction procedures falls under a “person who has been using or receiving profits from the building since prior to the commencement of auction procedures” set forth in Article 395, paragraph (1), item (i) of the Civil Code, even if such right of lease was established after an attachment based on a disposition of delinquency was conducted. The reasons are as follows: On the premise that a right of lease that cannot be asserted against a mortgagee shall cease to be effective upon a sale in auction procedures based on the Civil Execution Act (Article 59, paragraph (2) of the same Act) and a possessor who is using or receiving profits from the building based on such right of lease will be obliged to deliver such building to the purchaser who won such auction, with the purpose of mitigating the disadvantage of the possessor, who will be required to deliver the building immediately, and adjusting interests of the possessor and the purchaser, Article 395, paragraph (1) of the Civil Code grants a grace period with regard to performance of the delivery obligation until six months elapse from the time of the purchase only to a possessor who satisfies certain and defined requirements. In this mechanism, procedures for a disposition of delinquency cannot be seen to be the same as the auction procedures based on the Civil Execution Act, and even in light of the wording of Article 395, paragraph (1), item (i) of the Civil Code, it cannot be understood that “the commencement of auction procedures” referred to in the same item includes an attachment based on a disposition of delinquency.

The determination in prior instance, which dismissed the appellant’s petition for a delivery order against the opposite party, taking a point of view that goes along with this conclusion, can be affirmed as legitimate. The decision in prior instance has no violation as alleged in the argument of the appellant, and therefore the argument cannot be accepted.

Accordingly, the decision has been rendered as set forth in the main text by the unanimous consent of the justices.

Justice MIYAZAKI Yuko

Justice OKABE Kiyoko

Justice YAMASAKI Toshimitsu

Justice TOKURA Saburo

Justice HAYASHI Keiichi