2018.12.14

2018 (Ju) 44

Minshu Vol. 72, No. 6

Judgment upon the case concerning the time when a beneficiary from a fraudulent act becomes responsible for the delay in performance of the obligation, which results from the rescission of the fraudulent act, to pay the amount equivalent to the money received thereby to the obligee seeking the rescission

Case seeking compensation for loss or damage against former directors and rescission of a fraudulent act

Judgment of the Second Petty Bench, dismissed

Tokyo High Court, Judgment of September 27, 2017

A beneficiary from a fraudulent act becomes responsible for the delay in performance of the obligation, which results from the rescission of the fraudulent act, to pay the amount equivalent to the money received thereby to the obligee seeking the rescission, on and after the time when the beneficiary receives the request for performance.

Article 412, paragraph (3) and Article 424, paragraph (1) of the Civil Code



Civil Code

(Time for Performance and Delay in Performance)

Article 412, paragraph (3)

(3) If no time limit is assigned to the performance of an obligation, the obligor shall be responsible for the delay on and after the time he/she receives the request for performance.

(Obligee's Right to Demand the Rescission of Fraudulent Act)

Article 424, paragraph (1)

(1) An obligee may demand the court to rescind any juristic act which an obligor commits knowing that it will prejudice the obligee; provided, however, that, this shall not apply to the cases where any person who benefits from such act, or any person who succeeds to such benefit, did not know, at the time of such act or succession, the fact that the obligee is to be prejudiced.

The final appeals are dismissed.

The cost of each final appeal shall be borne by each appellant.

Concerning the reasons for a petition for acceptance of final appeal stated by the counsels for final appeal in 2018 (Ju) 44, NAKAYAMA Hitomi and UEKI Ryo, and the reasons for a petition for acceptance of final appeal stated by the counsel for final appeal in 2018 (Ju) 45, FURUMOTO Haruhide (except for those excluded in both cases)

1. In this case, based on the right to demand the rescission of a fraudulent act, the appellee, who had a claim for compensation for loss or damage of about 3,760,000,000 yen against A, demanded Appellant Y1 to rescind a contract stipulating that A shall purchase shares from Appellant Y1 at 162,500,000 yen, and to pay the amount equivalent to the aforementioned amount that Appellant Y1 had already received and delay damages accrued thereon for the period from the day following the day on which the complaint was served, and the appellee also demanded Appellant Y2 to rescind a contract stipulating that A shall make a gift of 120,000,000 yen to Appellant Y2, and to pay the amount equivalent to the aforementioned donated money that Appellant Y2 had already received and delay damages accrued thereon for the period from the day following the day on which the complaint was served.

2. The counsels argue as follows. An obligation of a beneficiary from a fraudulent act, which results from the rescission of the fraudulent act, to pay the amount equivalent to the money received thereby to the obligee seeking the rescission (hereinafter referred to as the "payment obligation for received money") arises when a judgment ordering the rescission of the fraudulent act becomes final and binding, and hence the beneficiary does not become responsible for the delay in performance until such judgment ordering rescission of the fraudulent act becomes final and binding. However, the court of prior instance ordered payment of delay damages for the period from the day following the day on which each of the complaints was served in relation to each of the payment obligations for received money that the appellants assume to the appellee, and such determination of the court of prior instance contains an error in the interpretation and application of laws and regulations.

3. We consider the case on this point. The rescission of a fraudulent act becomes effective as a result a judgment to rescind the fraudulent act becoming final and binding (see the judgment of the Second Petty Bench of the Supreme Court of March 26, 1965, 1959 (O) 99, Minshu, Vol. 19, No. 2, at 508). However, whether the rescission becomes effective solely toward the future or retroactively should be determined in consideration of the purpose of the system of rescission of a fraudulent act, impact arising from each approach of understanding this issue, and other matters. The right to demand the rescission of a fraudulent act is intended to preserve the general property of an obligor by rescinding the fraudulent act and restoring the property that has escaped, and it places the beneficiary or subsequent acquirer under an obligation to restore the property that has escaped, on the grounds of their responsibility for having caused the escape of any property from the obligor's property by performing the fraudulent act (see the judgment of the Third Petty Bench of the Supreme Court of April 26, 1960, 1957 (O) 362, Minshu, Vol. 14, No. 6, at 1046, and the judgment of the Second Petty Bench of the Supreme Court of November 19, 1971, 1970 (O) 498, Minshu, Vol. 25, No. 8, at 1321). In that case, it can be said that the understanding that rescission of a fraudulent act becomes retroactively effective goes along with the aforementioned purpose. Moreover, if the beneficiary's payment obligation for received money to the obligee seeking the rescission of the fraudulent act, which results from the rescission, does not arise retroactively before a judgment to rescind the fraudulent act becomes final and binding, the beneficiary can gain all profits the beneficiary had made up until then by using the received money, and this is not reasonable. Therefore, the aforementioned payment obligation for received money should be considered to arise retroactively from the time the beneficiary received the money, as a result of a judgment to rescind the fraudulent act becoming final and binding. Given that the aforementioned payment obligation for received money is an obligation without due date, there is no reason for understanding that the beneficiary becomes responsible for the delay in performance of that obligation at the same time it arises. Moreover, a request for performance of the payment obligation for received money that was made before a judgment to rescind the fraudulent act becomes final and binding can also be considered to constitute the "request for performance" referred to in Article 412, paragraph (3) of the Civil Code.

For the reasons described above, it is reasonable to consider that the beneficiary becomes responsible for the delay in performance of the aforementioned payment obligation for received money on and after the time when the beneficiary receives the request for performance.

When this determination is applied to this case, the appellee demanded, by filing the complaints, that the appellants pay the amount equivalent to money that the appellants had already received, while seeking the rescission of the fraudulent acts they performed. Therefore, the first day of calculation of delay damages for each of the payment obligations for received money that the appellants assume to the appellee is the day following the day on which each complaint was served.

4. The determination of the court of prior instance concerning the counsels' arguments can be upheld. The counsels' arguments are not acceptable.

Incidentally, the final appeal concerning other claims is dismissed as the reasons for a petition for acceptance of final appeal were excluded by an order to accept a final appeal.

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

Justice KANNO Hiroyuki

Justice ONIMARU Kaoru

Justice YAMAMOTO Tsuneyuki

Justice MIURA Mamoru