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2018 (Kyo) 10

2019.02.12
2018 (Kyo) 10
Minshu Vol. 73, No. 2
Decision concerning whether or not a litigation seeking compensation for damages filed by the defendant seeking dismissal of a suit by alleging unchaste acts between the plaintiff and a third party in a divorce litigation, based on the abovementioned unchaste acts against the abovementioned third party, is a "litigation seeking compensation for damages that have arisen from the facts which constitute the statement of claims for personal status litigation" as prescribed in Article 8, paragraph (1) of the Personal Status Litigation Act.
Case of appeal with permission against the ruling to dismiss the appeal against the ruling of transfer
Decision of the Third Petty Bench, dismissed
Tokyo High Court, Decision of June 6, 2018
In the case where the defendant of a divorce litigation is seeking dismissal of a suit for divorce alleging that the plaintiff is a spouse at fault who conducted unchaste acts with a third party, a litigation seeking compensation for damages filed by the abovementioned defendant based on the abovementioned unchaste acts against the abovementioned third party as the opponent is a "litigation seeking compensation for damages that have arisen from the facts which constitute the statement of claims for personal status litigation" as prescribed in Article 8, paragraph (1) of the Personal Status Litigation Act.
Article 8, paragraph (1) of the Personal Status Litigation Act and Article 1, paragraph (2) and Article 770 of the Civil Code



Personal Status Litigation Act

(Transfer of Litigation Concerning Related Claims)

Article 8, paragraph (1)

(1) Where litigation seeking compensation for damages is pending in a court of first instance and the damages arise from the facts which constitute the statement of claims for personal status litigation pending in a family court,the court of first instance may, when it finds reasonable, upon petition,transfer the litigation seeking compensation for damages to the family court.In this case, the family court that receives the transfer may conduct a trial or make judicial decisions regarding said litigation seeking compensation for damages.



Civil Code

(Fundamental Principles)

Article 1, paragraph (2)

(2) The exercise of rights and performance of duties must be done in good faith.



(Judicial Divorce)

Article 770 (1) Only in the cases stated in the following items may either husband or wife file a suit for divorce:

(i) if a spouse has committed an act of unchastity;

(ii) if abandoned by a spouse in bad faith;

(iii) if it is not clear whether a spouse is dead or alive for not less than three years;

(iv) if a spouse is suffering from severe mental illness and there is no prospect of recovery; or

(v) if there is any other grave cause making it difficult to continue the marriage.

(2) A court may dismiss a suit for divorce if it finds continuing the marriage reasonable taking into account all circumstances, even in the case where there is a cause listed in items (i) to (iv) inclusive of the preceding paragraph.
The appeal against a ruling is dismissed.

The cost of the appeal shall be borne by the appellant.
1. Reason 1 for an appeal stated by the counsels for appeal, AOKI Ryousuke and ARAKI Yuhei, and the subagent for appeal, INOUE Toshihiro

Article 8, paragraph (1) of the Personal Status Litigation Act provides that where litigation seeking compensation for damages is pending in a court of first instance and the damages arise from the facts which constitute the statement of claims for personal status litigation pending in a family court, the court of first instance may, when it finds reasonable, transfer the litigation seeking compensation for damages to the family court upon petition. This provision may be construed to have been established for the purpose of transferring a litigation seeking compensation for damages whose proceedings are overlapping with the personal status litigation to the family court where the abovementioned personal status litigation is pending, to conduct joint proceedings from the viewpoint of providing convenience to parties in showing proof and in terms of judicial economy.

In light of the abovementioned purpose, it is reasonable to consider that, in the case where the defendant of a divorce litigation is seeking dismissal of a suit for divorce alleging that the plaintiff is a spouse at fault who conducted unchaste acts with a third party, a litigation seeking compensation for damages filed by the abovementioned defendant based on the abovementioned unchaste acts against the abovementioned third party as the opponent is a "litigation seeking compensation for damages that have arisen from the facts which constitute the statement of claims for personal status litigation" as prescribed in Article 8, paragraph (1) of the Personal Status Litigation Act.

The determination of the court of prior instance to the same effect as above is justifiable and can be upheld. The arguments made by the counsels and subagent are not acceptable.

2. Reason 2 for an appeal against a ruling stated by the abovementioned counsels and subagent

The counsels and subagent argue that the determination made on the appropriateness of transferring the litigation which belongs to the discretion of the court of prior instance is unreasonable. The determination of the court of prior instance with respect to the abovementioned argument can be upheld. The arguments made by the counsels and subagent are not acceptable.

Accordingly, the Court 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
(This translation is provisional and subject to revision.)