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1990 (O) 695

1990.07.20
1990 (O) 695
Minshu Vol. 44, No. 5
Judgment concerning the case regarding a judicial decision on distribution of property in a divorce lawsuit and the principle of prohibition of adverse alteration
Case of divorce, etc.
Judgment of the Second Petty Bench, dismissed
Takamatsu High Court, Judgment of February 7, 1990
Where an appeal to the court of second instance is filed against a judgment that ordered distribution of property in a divorce lawsuit, the principle of prohibition of adverse alteration does not apply to a judicial decision on the distribution of property.
Article 768 of the Civil Code, Article 385 of the Code of Civil Procedure, and Article 15, paragraphs (1) to (3) of the Personal Status Litigation Procedure Act



Civil Code

Article 768

(1) One party to a divorce by agreement may claim a distribution of property from the other party.

(2) If the parties do not, or cannot, settle on agreement with regard to the distribution of property pursuant to the provision of the preceding paragraph, either party may make a claim to the family court for a disposition in lieu of agreement; provided that this claim for distribution of property shall be extinguished at the expiration of two years from the day of divorce.

(3) In the case referred to in the preceding paragraph, the family court shall determine whether to make a distribution, and the amount and method of that distribution, taking into account the amount of property obtained through the cooperation of both parties and all other circumstances.



Code of Civil Procedure

Article 385

A judgment in the first instance may be modified only within the bounds of the objection entered against it.



Personal Status Litigation Procedure Act

Article 15 (1) In a lawsuit to seek rescission of marriage or a divorce lawsuit filed by a husband or wife, the court may, upon petition, determine a person who should have custody of their child(ren) and other necessary matters regarding custody of their child(ren) or have the husband or wife distribute property to the other party.

(2) In the case referred to in the preceding paragraph, the court may order the parties to deliver their child(ren), pay money, deliver a thing, or make any other payment.

(3) A judicial decision under the provisions of the preceding two paragraphs is to be indicated in the main text of the judgment.
The final appeal is dismissed.

The costs of the final appeal shall be borne by the appellant of final appeal.
Reasons for a final appeal stated by the counsels for final appeal, OTSUBO Kenzo and ISHIKAWA Masayasu

In short, the counsels argue that alteration of the judgment in first instance in a manner adverse to the appellant (appellant of the appeal to the court of second instance) by the court of prior instance without any objection entered by the appellee (appellee of the appeal to the court of second instance) regarding the amount of distribution of property is illegal in violation of the principle of prohibition of adverse alteration provided in Article 385 of the Code of Civil Procedure.

However, with regard to a petition for distribution of property made in a divorce lawsuit pursuant to the provisions of Article 15, paragraph (1) of the Personal Status Litigation Procedure Act, the court should determine whether to make a distribution and the amount and method of distribution in accordance with what it finds justifiable without being bound by the petitioner's arguments, and even if the court finds the amount of distribution, etc. in a manner that is more advantageous to the petitioner than was argued by the petitioner, it does not violate the provisions of Article 186 of the Code of Civil Procedure. Therefore, even where only the respondent files an appeal to the court of second instance against the judgment in first instance that determined the certain amount of distribution, etc., if the court of second instance finds that the amount of distribution, etc. determined by the court of first instance is not justifiable, it should alter the judgment in first instance and determine the amount, etc. which it finds justifiable. It is reasonable to consider that the principle of prohibition of adverse alteration does not apply to this case. The judgment in prior instance contains no illegality as argued by the counsels, and the counsels' argument of unconstitutionality on the premise of existence of the aforementioned illegality lacks a premise. The arguments are only denouncing the judgment in prior instance based on the counsels' own opinions, and thus are not acceptable.

Reason II for a final appeal stated by the same counsels for final appeal

The findings and determination of the court of prior instance regarding the counsels' arguments are legitimate and can be accepted in light of the evidence indicated in the judgment in prior instance, and the process thereof contains no illegality as argued by the counsels. The arguments are only criticizing the findings of facts made by the court of prior instance under its exclusive power or denouncing the judgment in prior instance based on the counsels' own opinions, and thus are not acceptable.

Accordingly, in accordance with Articles 401, 95, and 89 of the Code of Civil Procedure, the Court unanimously decides as set forth in the main text.
Justice KAGAWA Yasukazu

Justice FUJISHIMA Akira

Justice NAKAJIMA Toshijiro
(This translation is provisional and subject to revision.)