2018.12.18

2017 (O) 1725

Minshu Vol. 72, No. 6

Decision upon the case concerning whether or not a ruling to transfer litigation under Article 324 of the Code of Civil Procedure can be revoked

Case of opposition to execution

Decision of the Third Petty Bench, the ruling to transfer litigation revoked

Takamatsu High Court, Decision of November 30, 2017

The Supreme Court can revoke a ruling to transfer litigation under Article 324 of the Code of Civil Procedure that was rendered on the grounds of the presence of the circumstances as prescribed in Article 203 of the Rules of Civil Procedure, if it finds that said circumstances are not present.

Article 22, paragraph (1) and Article 324 of the Code of Civil Procedure and Article 203 of the Rules of Civil Procedure


Code of Civil Procedure

(Binding Effect of a Judicial Decision for a Transfer)

Article 22, paragraph (1)

(1) A judicial decision for a transfer which has become final and binding is binding on the court that has accepted the transferred case.


(Transfer to the Supreme Court)

Article 324 The high court, as the final appellate court, shall rule to transfer a case to the Supreme Court if the circumstances specified by the Rules of the Supreme Court are present.


Rules of Civil Procedure

(Transfer to the Supreme Court; Article 324 of the Code)

Article 203 A high court, as the final appellate court, shall transfer a case to the Supreme Court pursuant to the provision of Article 324 (Transfer to the Supreme Court) of the Code when the opinion of the high court on interpretation of the Constitution or any other law or regulation is inconsistent with precedents rendered by the Supreme Court (or precedents rendered by the former Supreme Court or those rendered by high courts as the final appellate court or the court of second instance, if there are no precedents rendered by the Supreme Court).

The ruling to transfer this case to the Supreme Court that was rendered by the Takamatsu High Court on November 30, 2017, is revoked.

1. On November 30, 2017, the Takamatsu High Court, which is the final appellate court, determined as summarized below and rendered a ruling to transfer this case to the Supreme Court (hereinafter referred to as the "Ruling") under Article 324 of the Code of Civil Procedure.

It is not reasonable to consider that where an obligee who filed a petition for execution against a claim withdrew said petition after having part of the subject claim satisfied by receiving liquidating distribution, etc. in the procedure of said execution against the claim, the attachment based on said petition had never had the effect of interruption of prescription pursuant to Article 154 of the Civil Code. Such opinion concerning the interpretation of a law or regulation (hereinafter referred to as the "Opinion") is inconsistent with the judgment of the First Petty Bench of the Supreme Court of September 9, 1999, 1996 (O) 2422, Saibanshu Minji, No. 193, at 685 (hereinafter referred to as the "1999 Judgment"), and therefore, the circumstances as prescribed in Article 203 of the Rules of Civil Procedure are present.

2. Article 324 of the Code of Civil Procedure provides that the high court, as the final appellate court, shall transfer a case to the Supreme Court if the circumstances specified by the Rules of the Supreme Court are present. Article 203 of the Rules of Civil Procedure provides that the aforementioned circumstances are present when the opinion of the high court on interpretation of any law or regulation is inconsistent with precedents rendered by the Supreme Court, etc. Article 22, paragraph (1) of the Code of Civil Procedure provides that "a judicial decision for a transfer which has become final and binding is binding on the court that has accepted the transferred case," but in light of the fact that said paragraph is intended mainly to prevent delay in proceedings, etc. due to repeated transfers between courts of first instance, the high court's ruling to transfer litigation under Article 324 of the Code of Civil Procedure should not be considered to be included in the aforementioned "judicial decision for a transfer." Article 203 of the Rules of Civil Procedure is intended for the unification of interpretation of laws and regulations through the transfer of a case to the Supreme Court because if the high court renders a judgment when the circumstances as prescribed in said Article are present, the judgment would be inconsistent with precedents rendered by the Supreme Court, etc., and, in light of this, it should instead be said that a determination of the Supreme Court prevails where the determination of the high court and that of the Supreme Court differ in relation to whether the circumstances as prescribed in said Article are present.

Therefore, it is reasonable to consider that the Supreme Court can revoke a ruling to transfer litigation under Article 324 of the Code of Civil Procedure that was rendered on the grounds of the presence of circumstances as prescribed in Article 203 of the Rules of Civil Procedure, if it finds that said circumstances are not present in relation to the ruling to transfer litigation.

3. Considering the Ruling, the 1999 Judgment made a determination concerning the case where an obligee who filed a petition for secured real property auction withdrew said petition without having the whole or part of the subject claim satisfied in the procedure of said auction, and it should be considered to differ in the premise from the Opinion concerning the case where an obligee who filed a petition for execution against a claim withdrew said petition after having part of the subject claim satisfied by receiving liquidating distribution, etc. in the procedure of said execution against the claim. Thus, the Opinion is not inconsistent with the 1999 Judgment, and it is found that the circumstances as prescribed in Article 203 of the Rules of Civil Procedure are not present in relation to the Ruling.

4. Accordingly, the Court revokes the Ruling and unanimously decides as set forth in the main text of the decision.

Justice OKABE Kiyoko

Justice YAMASAKI Toshimitsu

Justice TOKURA Saburo

Justice HAYASHI Keiichi

Justice MIYAZAKI Yuko