Date of the judgment |
1998.03.26 |
Case number |
1994 (O) No. 1408 |
Reporter |
Minshu Vol. 52, No. 2, at 483 |
Title |
Judgment upon the case concerning criteria of judgment for the priority if, with respect to an obligation-right, there occurs a conflict between attachment by a general obligee and attachment by a mortgagee based on the right of extension of security interest to the proceeds of the collateral |
Case name |
Case on the return of unjust enrichment |
Result |
Judgment of the First Petty Bench, dismissed |
Court of the Second Instance |
Tokyo High Court, Judgment of April 12, 1994 |
Summary of the judgment |
With respect to an obligation-right, if a conflict occurs between attachment by a general obligee and attachment by a mortgagee based on the right of extension of security interest to the proceeds of the collateral, the priority should be decided depending on which came first between the service of attachment order requested by the general obligee to the third party obligor and the registration of the establishment of mortgage. |
References |
Article 177, Article 304, and Article 372 of the Civil Code, Article 145 of the Civil Execution Act Article 177 of the Civil Code Acquisitions of, losses of and changes in real rights concerning immovable properties may not be asserted against third parties, unless the same are registered pursuant to the applicable provisions of the Registration Act. Article 304 of the Civil Code (1) A statutory lien may also be exercised against Things including monies that the obligor is to receive as a result of the sale, lease or loss of, or damage to, the subject matter of the statutory lien; provided, however, that the holder of the statutory lien must attach the same before the payment or delivery of the monies or other Thing. (2) The provisions of the preceding paragraph shall likewise apply to the consideration for real rights established by the obligor on the subject matter of the statutory lien. Article 372 of the Civil Code (1) Statutory lien for construction work for immovable property shall exist, with respect to immovable property, in connection with the expenses of construction work performed by a person who designs, carries out or supervises construction work regarding the immovable property of the obligor. (2) The statutory liens under the preceding paragraph shall exist, in cases where there is a current increase in the value of the immovable property resulting from the construction work, with respect to that increased value. Article 145 of the Civil Execution Act (1) The execution court shall, by its attachment order, prohibit an obligor from collecting or otherwise disposing of his/her obligation-right and prohibit a third party obligor from performing his/her obligation for the obligor. (2) The attachment order shall be issued without hearing the obligor and the third party obligor. (3) The attachment order shall be served to the obligor and the third party obligor. (4) The attachment order shall become effective when the attachment order is served on the third party obligor. (5) An appeal concerning execution may be lodged against a decision on a motion for an attachment order. |
Main text of the judgment |
The final appeal shall be dismissed. The cost of final appeal shall be borne by the appellant. |
Reasons |
As regards the reasons for final appeal argued by the appellant's counsels, OZAWA Masayuki, AKIYAMA Yasuo, FUJIHIRA Katsuhiko, KATSUKI Yuji, KAGAWA Akihisa, and TSUYUKI Takuma: The effect of the prohibition of disposition arisen from the attachment of obligation-right by a general obligee is to become effective when the attachment order is served to the third party obligor. In order for a mortgagee to assert his/her mortgage against a third party, it is necessary to register the establishment of the mortgage. Therefore, with respect to an obligation-right, if a conflict occurs between attachment by a general obligee and attachment by a mortgagee based on the right of extension of security interest to the proceeds of the collateral, the priority shall be decided depending on which came first between the service of attachment order requested by the general obligee to the third party obligor and the registration of the establishment of mortgage, that is to say, it is considered, if the attachment order had been served to the third party obligor before the registration of the establishment of mortgage by the mortgagee, then the mortgagee cannot receive liquidating distribution. The determination of the court of second instance that goes along this reasoning can be upheld as justifiable, and the appellant's argument is not acceptable. For these reasons, the Court shall pronounce judgment as stated in the main text unanimously by all the Justices. |
Presiding Judge |
Justice ODE Takao Justice ONO Motoo Justice ENDO Mitsuo Justice IJIMA Kazutomo Justice FUJII Masao |
| (This translation is provided and subject to revision.) (* Translated by Judicial Research Foundation) |