2009.07.14

2008 (Ju) 1134

Minshu Vol. 63, No. 6

Judgment concerning the amounts of the claims, which are to be the basis for the amount of distribution that the obligee is entitled to receive in the case where the obligee has filed a petition for an order of seizure of a claim according to the practice employed by the execution court, i.e. requiring a written petition for such an order to state a determined amount of the claim for delay damages, which is included in the claims to be satisfied, as calculated up to the petition date

Case of opposition to liquidating distribution

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

Osaka High Court, Judgment of March 27, 2008

In cases where the obligee has filed a petition for an order of seizure of a claim according to the practice employed by the execution court, i.e. requiring a written petition for such an order to state a determined amount of the claim for delay damages, which is included in the claims to be satisfied, as calculated up to the petition date, such obligee is entitled to receive the amount of distribution as calculated, irrespective of whether he/she has submitted a statement of accounts, based on the amount indicated in the title of obligation by adding the amount of delay damages up to the distribution date to the amounts of the claims, which are to be the basis for the calculation of the amount of distribution, unless there are special circumstances such as where the obligee has clearly shown in a statement of accounts the intention to seek a distribution while stating such determined amount of the claim for delay damages, which is included in the claims to be satisfied.

Article 85, paragraph (1) and paragraph (2), and Article 166 of the Civil Execution Act, Article 60 and Article 145 of the Rules of Civil Execution

Article 85, paragraph (1) and paragraph (2) of the Civil Execution Act
(Preparation of a Distribution List)
(1) On the distribution date, an execution court shall determine the amounts of the principal of the claim, interest, and any other incidental claims, the amount of execution costs, and the order and amount of liquidating distribution with regard to each of the obligees set forth in the items of Article 87(1); provided, however, that this shall not apply to the order and amount of liquidating distribution in cases where an agreement has been reached among all of the obligees on the distribution date.
(2) In the case of determining the order and amount of liquidating distribution pursuant to the provisions of the main clause of the preceding paragraph, the execution court shall make the determination in accordance with the provisions of the Civil Code, Commercial Code and any other Acts.

Article 166 of the Civil Execution Act
(Implementation of Liquidating Distribution, etc.)
An execution court shall implement liquidating distribution, etc. in any of the following cases, in addition to the cases prescribed in Article 109 as applied mutatis mutandis pursuant to Article 161(6):
(i)　Cases where a statutory deposit was made under the provisions of Article 156(1) or (2) or Article 157(5)
(ii)　Cases where a sale was carried out based on a sale order
(iii)　Cases where proceeds were submitted pursuant to the provisions of Article 163(2)
(2) The provisions of Article 84, Article 85 and Articles 88 to 92 shall apply mutatis mutandis to the procedure of liquidating distribution, etc. to be implemented by an execution court pursuant to the provisions of the preceding paragraph.

Article 60 of the Rules of Civil Execution
(Requisition of Submission of Statement of Accounts)
When a distribution date, etc. is specified, a court clerk shall make a requisition to each obligee to submit to the execution court a statement of accounts indicating the amounts of the principal of the claim, interest up to the distribution date, etc., and any other incidental claims, as well as the amount of execution costs within one week.

Article 145 of the Rules of Civil Execution
(Application Mutatis Mutandis of Provisions on Execution against Real Property)
The provisions of Article 26 and Article 27 shall apply mutatis mutandis to execution against a claim, the provisions of Article 63 and Articles 65 to 72 shall apply mutatis mutandis to an administration order, the part of the provision of Article 141, paragraph (4) pertaining to a record shall apply mutatis mutandis to the case where a court execution officer has sold movables pursuant to the provision of Article 163, paragraph (2), and the provisions of Articles 59 to 62 shall apply mutatis mutandis to the procedure of liquidating distribution, etc. to be implemented by the execution court upon execution against a claim. In these cases, the phrase "and the debtor" in Article 27 shall be deemed to be replaced with ", the debtor and the administrator"; and if an administration order is issued, the phrase "the price of the real property is paid" in Article 59, paragraph (1) and the phrase "the price is paid" in Article 59, paragraph (2) shall be deemed to be replaced with "a decision is made to implement liquidating distribution."

The judgment in prior instance is quashed with respect to the part for which the appellant of final appeal lost the case.
The appeal to the court of second instance filed by the appellee of final appeal is dismissed with respect to the part mentioned in the preceding paragraph.
The appellee of final appeal shall bear the cost of the appeal to the court of second instance and the cost of the final appeal.

Concerning Reason IV for petition for acceptance of final appeal, argued by the appeal counsels, KO Seimo, et al.
1. This is a case of opposition to liquidating distribution in which the appellant of final appeal seeks a revision of the distribution list prepared as of March 28, 2007, with regard to 2007 (Ri) No. 129, the case of the procedure for liquidating distribution, etc. before the Osaka District Court, Sakai Branch (hereinafter referred to as the "Sakai Branch"), in which seven persons, including the appellant of final appeal and the appellee of final appeal, are involved as the obligees, X is involved as the obligor, and Takarazuka City as the third party obligor (this distribution list shall hereinafter be referred to as the "Distribution List").

2. The outline of the facts legally determined by the court of prior instance is as follows.
(1)A. On February 23, 2004, Y filed a petition with the Sakai Branch for an order of seizure for satisfaction of the claims indicated in (a) below (the claims to be satisfied), against the claim mentioned in (b) below (the claim seized), while designating X as the obligor and Takarazuka City as the third party obligor, and an order of seizure was issued on February 24.
(a) Claims to be satisfied: the claims for the principal, interest and delay damages indicated in the original of the enforceable notarial deed, prepared by Notary Z of the Osaka Legal Affairs Bureau for the contract of monetary loan for consumption, No. 777 of 2002, as well as the execution costs, totaling 55,108,326 yen.
(b) Claim seized: the part of the claim for damages held by X against Takarazuka City by reason of an illegal petition for an order of provisional disposition, etc. (hereinafter referred to as the "Claim for Damages"), which is up to the amount of the claims mentioned in (a) above.
B. On March 30, 2005, Y filed a petition with the Sakai Branch for an order of seizure for satisfaction of the claims indicated in (a) below (the claims to be satisfied), against the claim mentioned in (b) below (the claim seized), while designating X as the obligor and Takarazuka City as the third party obligor, and an order of seizure was issued on March 31.
(a) Claims to be satisfied: the claim for the principal and delay damages indicated in the original of the enforceable notarial deed, prepared by said notary for the contract of acknowledgement and performance of obligation, No. 1015 of 2004, as well as the execution costs, totaling 73,967,393 yen.
(b) Claim seized: the part of the Claim for Damages, which is up to the amount of the claims mentioned in (a) above.
C. May 13, 2005, Y filed a petition with the Sakai Branch for an order of seizure for satisfaction of the claims indicated in (a) below (the claims to be satisfied), against the claim mentioned in (b) below (the claim seized), while designating X as the obligor and Takarazuka City as the third party obligor, and an order of seizure was issued on May 17.
(a) Claims to be satisfied: the claims for the principal and delay damages indicated in the original of the enforceable notarial deed, prepared by said notary for the contract of acknowledgement and performance of obligation, No. 246 of 2005, as well as the execution costs, totaling 46,309,304 yen.
(b) Claim seized: the part of the Claim for Damages, which is up to the amount of the claims mentioned in (a) above.
D. Subsequently, the appellant succeeded to Y's status as the obligee effecting a seizure with regard to the claims seized listed in A to C above.
E. On December 21, 2005, the appellant filed a petition with the Sakai Branch for an order of seizure for satisfaction of the claims indicated in (a) below (the claims to be satisfied), against the claim mentioned in (b) below (the claim seized), while designating X as the obligor and Takarazuka City as the third party obligor, and an order of seizure was issued on the same day (hereinafter the petitions for the orders of seizure mentioned in A to C and E above shall be referred to as the "Petitions," and these orders of seizure issued based on the Petitions shall be referred to as the "Orders of Seizure").
(a) Claims to be satisfied: the claims for the principal and delay damages indicated in the original of the enforceable notarial deed, prepared by said notary for the contract of acknowledgement and performance of obligation, No. 638 of 2005, as well as the execution costs, totaling 7,864,120 yen.
(b) Claim seized: the part of the Claim for Damages, which is up to the amount of the claims mentioned in (a) above.
(2) The originals of the notarial deeds mentioned in (1)A to C and E above (hereinafter referred to as the "Titles of Obligations") certified the obligor’s obligation to pay the principal with delay damages calculated thereon for the period until the completion of payment. At that time, with the intention of releasing a third party obligor from the burden of calculating the amount of delay damages, the Sakai Branch employed the practice of requiring a written petition for an order of seizure of a claim to state a determined amount of the claim for delay damages, which is included in the claims to be satisfied, as calculated up to the date of petition (hereinafter referred to as the "Practice"). Upon filing the Petitions, Y and the appellant stated determined amounts of the claims for delay damages, which were included in the claims to be satisfied, by calculating those amounts up to the dates on which the respective Petitions were filed (hereinafter referred to as the "Petition Dates").
(3) A conflict occurred among the seizures against the Claim for Damages effected by the seven obligees, including the appellant and the appellee. Takarazuka City, in accordance with Article 156, paragraph (2) of the Civil Execution Act, deposited the whole amount of the Claim for Damages, 486,938,104 yen, and this led to the decision to implement the procedure of liquidating distribution at the Sakai Branch.
(4) The Sakai Branch designated the distribution date under said procedure of liquidating distribution (hereinafter referred to as the "Distribution Date") as March 28, 2007. On March 23, based on the Orders of Seizure, the appellant submitted to the Sakai Branch the statements of accounts indicating the amounts of delay damages for the respective periods until the Distribution Date (hereinafter referred to as the "Statements of Accounts").
(5) At the Sakai Branch, in cases where an obligee filed a petition for an order of seizure of a claim according to the Practice, even if he/she submitted, during the procedure of liquidating distribution, a statement of accounts indicating the amount of delay damages for the period until the distribution date, the amount of distribution to such obligee was to be calculated without including the amount of delay damages for the period from the day following the petition date until the distribution date in the amounts of the claims, which were to be the basis for the calculation of the amount of distribution (such operation for calculation shall hereinafter be referred to as the "Operation"). On March 28, a court clerk of the Sakai Branch prepared the Distribution List in which the amount of distribution to the appellant was calculated without including the amount of delay damages for the period from the day following each of the Petition Dates until the Distribution Date in the amounts of the claims, which were to be the basis for the calculation of the amount of distribution.
(6) On the same day, the appellant filed an opposition to liquidating distribution, expressing dissatisfaction with the amounts of the claims of and the amount of distribution to the appellant that were indicated in the Distribution List, and then filed this suit on April 3, 2007.
(7) The appellant alleges as follows. Even though the Petitions had stated, according to the Practice, determined amounts of the claims for delay damages, which were included in the claims to be satisfied, as calculated up to the Petition Dates, due to the fact that a conflict occurred among the seizures against the Claim for Damages, and the appellant submitted the Statements of Accounts in which the amounts of delay damages for the period from the day following each of the Petition Dates until the Distribution Date were added, the appellant is entitled to receive the amount of distribution as calculated by adding said amounts of delay damages to the amounts of the claims which are to be the basis for the calculation of the amount of distribution (this allegation shall hereinafter be referred to as the "Allegation").

3. Given the facts mentioned above, the court of first instance accepted the Allegation, and partially upheld the appellant's claim for a revision of the Distribution List by decreasing the amount of distribution to the appellee while increasing the amount of distribution to the appellant. The appellee filed an appeal against this decision. The court of prior instance rejected the Allegation and dismissed the appellant's claim, on the grounds that if the Allegation were accepted under the current circumstances where the Operation had in effect been established, it would lead to inequality between the appellant who submitted statements of accounts indicating the amounts of delay damages for the periods until the distribution date, and other obligees who did not submit any such statement of accounts.

4. However, we cannot affirm the holdings of the court of prior instance mentioned above, on the following grounds.
(1) Compulsory execution against a monetary claim results in, for instance, prohibiting the third party obligor, by way of a seizure, from providing performance to his/her obligee, while requiring him/her to provide performance to or make a deposit for the benefit of the obligee effecting the seizure, although the third party obligor should have basically had only to provide performance to his/her obligee (see Article 145, Article 147, Article 155, and Article 156 of the Civil Execution Act). In view of such effect of compulsory execution, due consideration should be given to the procedural burden to be imposed on the third party obligor. Although the Practice of requiring a written petition for an order of seizure of a claim to state a determined amount of the claim for delay damages, which is included in the claims to be satisfied, as calculated for the period until the petition date, does not have any legal basis, said practice should be judged as a reasonable arrangement for giving consideration to the burden of the third party obligor by determining the amounts of the claims to be satisfied, so as to prevent the situation where the third party obligor cannot ascertain the amount that he/she must pay in response to the request of the obligee effecting the seizure who seeks collection of the claim seized, unless the third party obligor calculates by him/herself the amount of the claim for delay damages that is included in the amounts of the claims to be satisfied. The obligee who has a title of obligation, which certifies the obligor’s obligation to pay the principal with delay damages calculated thereon for the period until the completion of payment, is basically allowed to request the court to issues an order of seizure of a claim to the effect that the amount of the claim for delay damages that is included in the claims to be satisfied should be calculated for the period until the completion of the payment of the principal. If it is decided that the procedure of liquidating distribution is to be implemented due to a conflict among the seizures or for any other reasons, such obligee is entitled to receive the amount of distribution as calculated, irrespective of whether he/she has submitted a statement of accounts, based on the amount indicated in the title of obligation by adding the amount of delay damages up to the distribution date to the amounts of the claims, which are to be the basis for the calculation of the amount of distribution (such distribution shall hereinafter be referred to as "distribution based on the amount indicated in the title of obligation") (Article 166, paragraph (2) and Article 85, paragraph (1) and paragraph (2) of said Act). In accordance with these rules, the obligee who has filed a petition for an order of seizure of a claim according to the Practice can be construed to have agreed to state a determined amount of the claim for delay damages, which is included in the claims to be satisfied, as calculated up to the date of petition, to the extent to give consideration to the burden of the third party obligor through the abovementioned arrangement.
Assuming so, even where the obligee has filed a petition for an order of seizure of a claim according to the Practice, if the third party obligor has deposited money equivalent to the whole amount of the claim seized due to a conflict among the seizures (Article 156, paragraph (2) of said Act) and the procedure of liquidating distribution is to be implemented against the deposit money (Article 166, paragraph (1), item (i) of said Act), it is no longer necessary to give consideration to the burden of the third party obligor, and in such case, it is appropriate in ordinary circumstances to construe that the obligee has the intention to seek a distribution based on the amount indicated in the title of obligation.
Consequently, the obligee who has filed a petition for an order of seizure of a claim according to the Practice should be treated, in the procedure of liquidating distribution, as having the intention to seek a distribution based on the amount indicated in the title of obligation, unless there are special circumstances such as where the obligee has clearly shown in a statement of accounts the intention to seek a distribution while stating a determined amount of the claim for delay damages, which is included in the claims to be satisfied, as calculated up to the petition date, and irrespective of whether the obligee has submitted a statement of accounts, he/she is entitled to receive a distribution based on the amount indicated in the title of obligation.
(2) According to the facts mentioned above, Y and the appellant filed the Petitions based on the Titles of Obligation which certified X’s obligation to pay the principal with delay damages calculated thereon for the period until the completion of payment, and they stated, in these petitions, according to the Practice, determined amounts of the claims for delay damages, which were included in the claims to be satisfied, as calculated up to the Petition Dates. Subsequently, a conflict occurred among the seizures against the Claim for Damages, which is the claim seized based on the Orders of Seizure, and Takarazuka City, the third party obligor, deposited the whole amount of the Claim for Damages in accordance with Article 156, paragraph (2) of the Civil Execution Act. Furthermore, according to the facts mentioned above, the appellant submitted the Statements of Accounts which indicated the amounts of delay damages as calculated up to the Distribution Date. Taking all of these facts into consideration, we should say that it is clear that there are no such special circumstances mentioned above, and therefore the appellant is entitled to receive a distribution based on the amount indicated in the title of obligation.
In conclusion, the Allegation should be accepted, and the holdings of the court of prior instance that contravene our conclusion contain violation of laws and regulations that apparently affects the judgment.
(3) For the reasons stated above, the appeal counsel’s arguments are well-grounded, and the judgment in prior instance should inevitably be quashed with respect to the part for which the appellant lost the case. According to the reasoning shown above, since the judgment in first instance is justified in that it accepted the Allegation and partially upheld the appellant’s claim, we have decided to dismiss the appeal to the court of second instance filed by the appellee of final appeal with respect to said part.

Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices.

Justice TAHARA Mutsuo
Justice FUJITA Tokiyasu
Justice HORIGOME Yukio
Justice NASU Kohei
Justice KONDO Takaharu