2019.09.19

2018 (Ju) 1137

Minshu Vol. 73, No. 4

Judgment concerning whether or not, in order to cause the interruption of the prescription of a demanded claim to be effective on the grounds of an attachment made in the execution process, the obligor of the claim is required to be placed in the situation of being able to recognize the attachment

Case of opposition to execution

Judgment of the First Petty Bench, quashed and decided by the Supreme Court

Fukuoka High Court, Miyazaki Branch, Judgment of March 28, 2018

In order to cause the interruption of the prescription of a demanded claim to be effective on the grounds of an attachment made in the execution process, the obligor of the claim is not required to be placed in the situation of being able to recognize the attachment.

Article 147, item (ii) and Article 155 of the Civil Code



Civil Code

(Ground of Interruption of Prescription)

Article 147, item (ii)

The prescription shall be nullified upon issuance of:

(ii) any attachment, provisional seizure, or provisional disposition; or



Article 155 When an attachment, provisional seizure, or provisional disposition is not effected vis-a-vis a person who acquires any benefit of the prescription, it shall not have the effect of interruption of the prescription unless a notice is given to such person.

The judgment in prior instance is quashed, and the judgment in first instance is revoked.

The claim made by the appellee of final appeal is dismissed.

The total court costs shall be borne by the appellee.

Concerning the reasons for a petition for acceptance of final appeal stated by the counsel for final appeal, KIMURA Ryosuke (except for those excluded)

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

(1) On April 17, 2000, the appellant provided a loan of 3,360,000 yen to the appellee, setting the due date of payment as August 27, 2000 (hereinafter the claim regarding this loan is referred to as the "Loan Claim").

(2) On August 22, 2000, the appellant and the appellee prepared a notarial instrument of a monetary loan contract for the Loan Claim (hereinafter referred to as the "Notarial Instrument"). The Notarial Instrument contains the appellee's statement to the effect that the appellee would be subject to compulsory execution immediately upon delay in the performance of the obligation specified in the Notarial Instrument.

(3) Around June 23, 2008, the appellant filed with the Kagoshima District Court a petition for attachment on the appellee's savings claim against Japan Post Bank Co., Ltd., in order to demand the Loan Claim using the Notarial Instrument as a title of obligation. Around that time, an order of attachment of claim upholding this petition (hereinafter referred to as the "Attachment Order") was issued, and was served upon Japan Post Bank no later than July 3, 2008 (hereinafter the attachment by means of the Attachment Order is referred to as the "Attachment").

2. In this case, the appellee opposes compulsory execution, by alleging that the Loan Claim was extinguished by the operation of the prescription upon the lapse of ten years from the due date of payment, and by demanding that the enforceability of the Notarial Instrument should be denied. The issue of this case is whether or not the Attachment has the effect of interruption of the extinctive prescription of the Loan Claim.

3. Based on the facts mentioned above, the court of prior instance determined as summarized below, and upheld the appellee's claim on the grounds that the Loan Claim was extinguished by the operation of the prescription.

Article 155 of the Civil Code provides that "When an attachment, provisional seizure, or provisional disposition is not effected vis-a-vis a person who acquires any benefit of the prescription, it shall not have the effect of interruption of the prescription unless a notice is given to such person." In light of the legal intention of that Article, it should be said that in order to cause the interruption of the prescription of a demanded claim to be effective on the grounds of an attachment made in the execution process, the obligor of the claim is required to be placed in the situation of being able to recognize the attachment before the lapse of the period required for the extinctive prescription of the claim. In this case, there is no sufficient evidence to find that the Attachment Order had been served upon the appellee before the lapse of ten years from the due date of payment of the Loan Claim, and the appellee cannot be found to have been placed in the situation of being able to recognize the Attachment. Therefore, the Attachment does not have the effect of interruption of the extinctive prescription of the Loan Claim.

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

Article 155 of the Civil Code is interpreted as amending the principle under Article 148 of the same Code, which provides that the interruption of prescription on the grounds such as an attachment is effective solely among the parties relevant to an act that results in the interruption of prescription and their respective successors, and requiring that a notice should be given to any person who is entitled to the benefit of the prescription, other than those parties relevant to such act and their respective successors, so that such person would not suffer any unexpected disadvantage that could be caused when the effect of interruption of the prescription on the grounds such as an attachment is extended to that person (see 1972 (O) No. 723, the judgment of the Second Petty Bench of the Supreme Court of November 21, 1975, Minshu Vol. 29, No. 10, at 1537). Article 155 of that Code cannot be interpreted as meaning that in order to cause the interruption of the prescription on the grounds such as an attachment to be effective against any of the parties relevant to an act that results in the interruption of prescription and their respective successors, such party or successor is required to be placed in the situation of being able to recognize the attachment, etc. When it comes to the interruption of the prescription of the demanded claim on the grounds of an attachment made in the execution process, the obligor of the claim is precisely a party relevant to the act that results in the interruption of prescription. Consequently, it is reasonable to consider that in order to cause the interruption of prescription to be effective, the obligor is not required to be placed in the situation of being able to recognize the attachment.

According to the facts mentioned above, it should be concluded that the extinctive prescription of the Loan Claim was interrupted on the grounds of the Attachment.

5. The determination of the court of prior instance that is contrary to this contains illegality that obviously affects the judgment. The counsel's arguments are well-grounded to the extent that he points out as above, and the judgment in prior instance should inevitably be quashed. According to the explanation stated above, the appellee's claim is groundless, and therefore, the judgment in first instance should be revoked and the appellee's claim should be dismissed.

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

Justice MIYAMA Takuya

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice YAMAGUCHI Atsushi