move to the right menu  move to the main contents



Jump menu


Home > Supreme Court of Japan


2017 (Ju) 1793

2018.12.21
2017 (Ju) 1793
Minshu Vol. 72, No. 6
Judgment concerning whether or not it is appropriate to file an action seeking a declaratory judgment to the effect that the other party to inquiries made under Article 23-2, paragraph (2) of the Attorney Act has the obligation to provide necessary information in response to the inquiries
Case seeking compensation for loss or damage
Judgment of the Second Petty Bench, quashed and decided by the Supreme Court
Nagoya High Court, Judgment of June 30, 2017
An action filed by the bar association that made inquiries based on Article 23-2, paragraph (2) of the Attorney Act against the other party, seeking a declaratory judgment to the effect that the other party to the inquiries has the obligation to provide necessary information in response to the inquiries, is unlawful due to lack of the interest in seeking a declaratory judgment.
Article 23-2 of the Attorney Act and Article 134 of the Code of Civil Procedure



Attorney Act

(Request for information)

Article 23-2 (1) An attorney may request the bar association to which he/she belongs to make inquiries to public offices or public or private organizations for information necessary for a case to which he/she has been retained. The bar association may refuse the request if it finds such request to be inappropriate.

(2) A bar association may, pursuant to the request set forth in the preceding paragraph, request public offices or public or private organizations to provide necessary information.



Code of Civil Procedure

(Action for Declaratory Judgment as to the Validity of a Certificate)

Article 134 An action for declaratory judgment may also be filed to determine the authenticity of the provenance of a paper document that certifies a legal relationship.
1. The judgment in prior instance is quashed.

2. The action relating to a claim for a declaratory judgment concerning the obligation to provide necessary information with respect to the inquiries prescribed in the attachment to the judgment in prior instance is dismissed without prejudice.

3. The total court costs concerning the claim referred to in the preceding paragraph shall be borne by the appellee of final appeal.
I. Outline of the case

1. In this case, the appellee, a bar association which made the inquiries prescribed in the attachment to the judgment in prior instance (hereinafter referred to as the "Inquiries") pursuant to Article 23-2, paragraph (2) of the Attorney Act to Japan Post Service Co., Ltd., sought a declaratory judgment to the effect that the appellant, which absorbed the abovementioned company through an absorption-type merger, has the obligation to provide necessary information with respect to the Inquiries.

2. The court of prior instance made the following determinations with respect to the interest in seeking a declaratory judgment in relation to an action involving the claim for a declaratory judgment mentioned above (hereinafter referred to as the "Claim for a Declaratory Judgment") and upheld part of the Claim for a Declaratory Judgment based on the assumption that the abovementioned action is lawful, while dismissing the remaining parts of the Claim.

In light of the following facts, the dispute concerning the existence or absence of the obligation to provide necessary information with respect to the Inquiries is highly likely to be settled by a judgment: [i] if the Claim for a Declaratory Judgment is upheld, the appellant can be expected to voluntarily perform the obligation to provide necessary information; [ii] if the appellant provides necessary information in accordance with the upholding judgment, even if a third party claims damages alleging that such provision of necessary information is illegal, the appellant may refuse such claim on the grounds that no illegality can be found in such provision of necessary information; and [iii] the appellee is clearly stating that, if the Claim for a Declaratory Judgment is dismissed, it will not make inquiries again with respect to the same matters for which it made the Inquiries. Accordingly, the interest in seeking a declaratory judgment can be found in relation to an action involving the Claim for a Declaratory Judgment.

II. Reason I-6 for a petition for acceptance of final appeal argued by the counsels for the final appeal, NISHIMA Toyota, et al.

1. The counsels argue that the determination made by the court of prior instance which upheld part of the Claim for a Declaratory Judgment by finding the interest in seeking a declaratory judgment in relation to an action involving the Claim for a Declaratory Judgment is illegal due to the errors in the interpretation of laws and regulations.

2. In light of the fact that the system to make inquiries pursuant to Article 23-2, paragraph (2) of the Attorney Act (hereinafter referred to "Inquiries under Article 23") was established to enable bar associations to request not only public offices but also a wide range of public and private organizations to provide necessary information on a broad range of matters in consideration of the public nature of duties of attorneys, the system cannot be found to have granted bar associations the rights under private laws to request the other party to Inquiries under Article 23 to provide necessary information. Therefore, the act of refusing to provide necessary information in response to Inquiries under Article 23 does not constitute tort against the relevant bar association that made the Inquiries under Article 23 for infringing its interests, which are to be protected under laws (judgment of the Third Petty Bench of the Supreme Court of October 18, 2016, 2015 (Ju) 1036, Minshu Vol. 70, No. 7, at 1725). In addition, in light of the fact, inter alia, that there are no provisions stipulating sanctions for refusing to provide necessary information in response to Inquiries under Article 23, even if a judgment declaring that the other party to Inquiries under Article 23 has the obligation to provide necessary information becomes final and binding, the bar association making the inquiries has no choice other than to expect the other party to voluntarily perform the obligation. Moreover, in light of the nature of the interest in seeking a declaratory judgment as a legal interest, and the abovementioned findings, the effect of a judgment declaring that the other party to Inquiries under Article 23 has the obligation to provide necessary information does not contribute to the solution of legal disputes concerning the abovementioned obligation to provide necessary information, and thus, the bar association which made Inquiries under Article 23 should be found to have no interest in seeking the abovementioned judgment. The circumstances pointed out by the court of prior instance including that, if a judgment upholding the Claim for a Declaratory Judgment is rendered, the appellant can be expected to voluntarily perform the obligation to provide necessary information, are all de facto influences that are different from the effect of a judgment and do not affect the abovementioned determination.

Accordingly, an action that a bar association that had made Inquiries under Article 23 filed against the other party to such inquiries, seeking a declaratory judgment to the effect that the other party has the obligation to provide necessary information in response to the inquiries, should be found unlawful for lacking the interest in seeking a declaratory judgment.

3. For the reasons described above, the action involving the Claim for a Declaratory Judgment should be dismissed without prejudice and the part of the determinations of the court of prior instance that upheld part of the Claim for a Declaratory Judgment contains violation of laws and regulations that obviously affects the judgment. Therefore, the counsels' arguments are well-grounded.

III. Examination by the court's own authority

As explained in Section II. above, the action involving the Claim for a Declaratory Judgment should be dismissed without prejudice and the part of the determinations of the court of prior instance that dismissed part of the Claim for a Declaratory Judgment with prejudice also contains violation of laws and regulations that obviously affects the judgment.

IV. Conclusion

For the reasons described above, the judgment in prior instance should be quashed in its entirety and the action involving the Claim for a Declaratory Judgment should be dismissed without prejudice.

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
(This translation is provisional and subject to revision.)