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2017 (Ju) 2177

2019.01.18
2017 (Ju) 2177
Minshu Vol. 73, No. 1
Judgment concerning the litigation proceedings of a judgment rendered by a foreign court which became final and binding without an opportunity to file an appeal being given to the litigants due to failure to notify them of the content of the judgment or substantial failure to give them an opportunity to know the content of the judgment and the public policy as prescribed in Article 118, item (iii) of the Code of Civil Procedure
Case seeking an execution judgment
Judgment of the Second Petty Bench, quashed and remanded
Osaka High Court, Judgment of September 1, 2017
The litigation proceedings of a judgment rendered by a foreign court that became final and binding without an opportunity to file an appeal being given to the litigants due to actual failure to notify them of the content of the judgment or substantial failure to give them an opportunity to know the content of the judgment although it was possible to notify them of the content of the judgment are contrary to the public policy as prescribed in Article 118, item (iii) of the Code of Civil Procedure.
Articles 118, item (iii) of the Code of Civil Procedure and Article 22, item (vi) and Article 24 of the Civil Execution Act



Code of Civil Procedure

(Validity of a Final and Binding Judgment Rendered by a Foreign Court)

Articles 118, item (iii)

A final and binding judgment rendered by a foreign court is valid only if it meets all of the following requirements:

(iii) the content of the judgment and the litigation proceedings are not contrary to public policy in Japan;



Civil Execution Act

(Title of Obligation)

Article 22, item (vi)

Compulsory execution shall be carried out based on any of the following (hereinafter referred to as the "title of obligation"):

(vi) A judgment of a foreign court for which an execution judgment has become final and binding



(Execution Judgment for a Judgment of a Foreign Court)

Article 24 (1) An action seeking an execution judgment for a judgment of a foreign court shall be under the jurisdiction of the district court having jurisdiction over the location of the general venue of the obligor, and when there is no such general venue, it shall be under the jurisdiction of the district court having jurisdiction over the location of the subject matter of the claim or the seizable property of the obligor.

(2) An execution judgment shall be made without investigating whether or not the judicial decision is appropriate.

(3) The action set forth in paragraph (1) shall be dismissed without prejudice when it is not proved that the judgment of a foreign court has become final and binding or when such judgment fails to satisfy the requirements listed in the items of Article 118 of the Code of Civil Procedure.

(4) An execution judgment shall declare that compulsory execution based on the judgment by a foreign court shall be permitted.
The judgment in prior instance is quashed.

This case is remanded to the Osaka High Court.
Reason II for a petition for acceptance of final appeal stated by the counsel for the final appeal, KANEKO Noriyasu

1. In this case, the appellants filed an action seeking an execution judgment pursuant to Article 24 of the Civil Execution Act with respect to a judgment rendered by a court of the State of California, U.S., which ordered the appellee to compensate for damages.

2. The outline of facts determined by the court of prior instance is as follows.

(1) Under the civil procedure system of the State of California, a judgment is entered by the court and, in principle, one of the parties to a suit serves a notice of entry of judgment to the other party, and the period for filing an appeal to the court of second instance against a judgment expires when 180 days have passed from the date of entry of the judgment, at the latest.

(2) In March 2013, the appellants filed an action seeking damages against the appellee and several other persons, as the defendants, with the Superior Court of Orange County of the State of California, U.S. (hereinafter referred to as the "Foreign Court").

(3) The appellee appeared by appointing an attorney as counsel but the attorney resigned by obtaining permission from the Foreign Court in the process of the litigation proceedings. The appellee failed to appear on a subsequent date and thus, default was entered on the grounds of negligence in producing progress in litigation proceedings, in response to the request of the appellants.

(4) In March 2015, the Foreign Court rendered a default judgment (hereinafter referred to as the "Foreign Judgment") under the California Code of Civil Procedure ordering the appellee to pay approximately 275,500 U.S. dollars, in response to the appellants' motion, and the Foreign Judgment was entered by the Foreign Court.

(5) In March 2015, the appellants' counsel attorney sent a notice of entry of judgment with a copy of the judgment document attached thereto in relation to the Foreign Judgment to an erroneous address, by ordinary mail. The abovementioned notice cannot be said to have reached the appellee.

(6) The appellee neither filed an appeal to the court of second instance within the time frame for filing an appeal to the court of second instance, which is 180 days from the date of entry of the Foreign Judgment, nor other appeals within the prescribed period, and thus the Foreign Judgment became final and binding.

3. The court of prior instance determined as summarized below and held that the claims made by the appellants should be dismissed.

Service of a judgment to the defeated party constitutes part of the legal norm that regulates the court system of Japan by securing, in terms of procedures, the right to file an appeal against the determination made by the court; it also constitutes part of the public policy as prescribed in Article 118, item (iii) of the Code of Civil Procedure. Since the Foreign Judgment became final and binding without the judgment being served to the appellee, its litigation proceedings are contrary to the public policy as prescribed in that item.

4. However, the abovementioned determination of the court of prior instance cannot be upheld for the following reasons.

(1) In order to have a judgment rendered by a foreign court (hereinafter referred to as a "foreign judgment") be found valid in Japan pursuant to Article 118 of the Code of Civil Procedure, it is required that the content of the judgment and the litigation proceedings are not contrary to the public policy in Japan. Even if the litigation proceedings of a foreign judgment include elements which are based on a system that is not adopted in Japan, such mere inclusion cannot immediately lead to a conclusion that the abovementioned requirement is not satisfied. However, if such elements are found to be incompatible with the fundamental principle or fundamental idea of the legal order in Japan, the litigation proceedings of a foreign judgment should be found to be contrary to the public policy as prescribed in item (iii) of that Article (Judgment of the Second Petty Bench of the Supreme Court of July 11, 1997, 1993 (O) 1762, Minshu Vol. 51, No. 6, at 2573).

(2) Under the Code of Civil Procedure of Japan, a judgment document must be served on the parties (Article 255), an appeal to the court of second instance against a judgment must be filed within an inalterable time frame of two weeks from the day on which the judgment document was served, and the judgment does not become final and binding until the expiration of the abovementioned time frame (Articles 116, 285 and 313). In addition, service is to be effected, in principle, by such methods as delivery of the document with which a person is to be served, to the person on whom it is to be served, or at least, delivery to the prescribed person who lives together with the person to be served with the document or leaving the document at a place where service may be effected, and service by publication is allowed as an exception only in cases where there are circumstances where the abovementioned service methods cannot be used such that the party's domicile and residence are unknown, and no other place where the party may be served is known (Articles 98, 101, 106, 107 and 110). Meanwhile, as the requirement for a foreign judgment to be found valid in Japan pursuant to Article 118 of the Code of Civil Procedure, it is provided that the defeated defendant has been "served with the requisite summons or order for the commencement of litigation" (item (ii) of that Article), but no such clear provision has been stipulated with respect to the service of a judgment.

Furthermore, taking into account that it is obvious that the rules of procedures concerning the service of a judgment document as mentioned above are different for each country or jurisdiction, it cannot be immediately construed that the foreign judgment is contrary to the public policy as prescribed in Article 118, item (iii) of the Code of Civil Procedure by the mere failure of serving a judgment document in the litigation proceedings of a foreign judgment.

Yet, the Code of Civil Procedure of Japan can be construed to be securing the act of giving an opportunity to file an appeal against a judgment by notifying the litigants of the content of the judgment or substantially giving them an opportunity to know the content of the judgment, except in the case where there are circumstances where the abovementioned principle serving methods cannot be used, as an important procedure constituting the basis of the legal order in litigations.

Accordingly, if a foreign judgment becomes final and binding without an opportunity to file an appeal being given due to actual failure of notifying the litigants of the content of the judgment or substantial failure of giving them an opportunity to know the content of the judgment although it was possible to notify them of the content of the judgment, the litigation proceedings of such foreign judgment can be said to be incompatible with the fundamental principle or fundamental idea of the legal order in Japan and contrary to the public policy as prescribed in Article 118, item (iii) of the Code of Civil Procedure.

5. The court of prior instance made the determination by finding the litigation proceedings of the Foreign Judgment to be contrary to the public policy as prescribed in Article 118, item (iii) of the Code of Civil Procedure without examining whether or not the appellee was given an opportunity to file an appeal by being notified of the content of the Foreign Judgment or substantially being given an opportunity to know the content of the Foreign Judgment under the circumstances suggesting that it was possible to notify the appellee of the content of the Foreign Judgment, based on views different from those described above. Such determination made by the court of prior instance contains illegality that obviously affects the judgment. The counsel's arguments claiming this intent are well-grounded, and thus, the judgment in prior instance should inevitably be quashed.

This case should be remanded to the court of prior instance to be further examined as explained in 4. above.

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

Justice YAMAMOTO Tsuneyuki

Justice KANNO Hiroyuki

Justice MIURA Mamoru
(This translation is provisional and subject to revision.)