2010.06.29

2009 (Ju) 1298

Minshu Vol. 64, No. 4

Judgment concerning how to file a petition for compulsory execution in the case where the obligee, who holds a title of obligation which indicates a monetary claim and for which an association without legal capacity is the obligor, intends to carry out compulsory execution against the real property which collectively belongs to all of the members of the association and for which a third party is registered as the owner on behalf of the association

Case to seek the grant of a certificate of execution

Judgment of the Third Petty Bench, dismissed

Tokyo High Court, Judgment of April 15, 2009

Where the obligee, who holds a title of obligation which indicates a monetary claim and for which an association without legal capacity is the obligor, intends to carry out compulsory execution against the real property which collectively belongs to all of the members of the association, if a third party is registered as the owner of the real property on behalf of the association, the obligee should file a petition for compulsory execution for which the association is the obligor, by attaching, to a written petition for compulsory execution, an authenticated copy of the title of obligation accompanied by a certificate of execution for which the association is the obligor, and also attaching a final and binding judgment rendered to the obligee, on one hand, and the association and the registered owner, on the other, to declare that the real property is under the collective ownership of all of the members of the association, or any other document equivalent thereto. Accordingly, the obligee is not allowed to seek, with regard to said title of obligation, the grant of a certificate of execution for which the registered owner and the real property are the obligor and the property subject to execution, respectively.
(There are concurring opinions.)

Article 33 of the Civil Code, Article 29 of the Code of Civil Procedure, Articles 23, paragraph (3), Article 25, Article 27, paragraph (2), and Article 33 of the Civil Execution Act, Articles 21 and 23 of the Rules on Civil Execution

Article 33 of the Civil Code,
No juridical person can be formed unless it is formed pursuant to the applicable provisions of this Code or other laws.

Article 29 of the Code of Civil Procedure
An association or foundation which is not a juridical person and for which a representative or administrator is designated may sue or be sued in its name.

Articles 23, paragraph (3) of the Civil Execution Act
Compulsory execution based on the title of obligation prescribed in paragraph (1) may also be carried out against a person who possesses the subject matter of the claim on behalf of any of the persons listed in the items of said paragraph.

Article 25 of the Civil Execution Act
Compulsory execution shall be implemented on the basis of an authenticated copy of the title of obligation attaching a certificate of execution; provided, however, that compulsory execution for or against an indicated party concerned based on a final and binding judgment made in an action on small claim or a judgment of an action on small claim or demand for payment with a declaration of provisional execution shall be implemented on the basis of an authenticated copy thereof.

Article 27, paragraph (2) of the Civil Execution Act
A certificate of execution for which the obligee or obligor is a person other than a party concerned indicated in the title of obligation may be granted only when it is apparent to the court clerk or notary that compulsory execution may be carried out against or for such person or when the obligee has produced a document proving such fact.

Article 33 of the Civil Execution Act
When an obligee is unable to produce the document prescribed in Article 27(1) or (2), he/she may file an action for grant of a certificate of execution in order to seek grant of a certificate of execution (excluding one granted pursuant to the provisions of paragraph (3) of said Article).
(2) The action set forth in the preceding paragraph shall be under the jurisdiction of the courts specified in the following items for the categories of the title of obligation listed respectively in those items:
(i) Any of the titles of obligation set forth in Article 22(i) to (iii), (vi) and (vi)-2, or the title of obligation set forth in item (vii) of said Article excluding that set forth in the following item or item (vi): The court of first instance
(i)-2 The title of obligation set forth in Article 22(iii)-2 or the title of obligation set forth in item (vii) of said Article which relates to an order of compensation of damages or relates to a settlement or acknowledgment of claim in a procedure concerning a case of an order of compensation of damages: The district court before which the case of an order of compensation of damages was pending
(ii) The title of obligation set forth in Article 22(iv) excluding that set forth in the following item: The summary court to which the court clerk who has issued the demand for payment with a declaration of provisional execution belongs (or, if the claim relating to the demand for payment with a declaration of provisional execution is not under the jurisdiction of the summary court, the district court having jurisdiction over the location of the summary court)
(iii) The title of obligation set forth in Article 22(iv) based on a petition for a demand for payment filed under the provisions of the main clause of Article 132-10(1) of the Code of Civil Procedure or a petition for a demand for payment filed by means of a document prepared in the form prescribed in Article 402(1) of said Act: The court with which an action is deemed to have been filed pursuant to the provisions of Article 398 of said Act (including the cases where it is applied mutatis mutandis pursuant to Article 402(2) of said Act) with regard to such petition for a demand for payment
(iv) The title of obligation set forth in Article 22(iv)-2: The court to which the court clerk who has made the disposition set forth in said item belongs
(v) The title of obligation set forth in Article 22(v): The court having jurisdiction over the location of the general venue of the obligor (or, when there is no such general venue, the court having jurisdiction over the location of the subject matter of the claim or the seizable property of the obligor)
(vi) The title of obligation set forth in Article 22(vii) which relates to a settlement or a mediation (excluding a settlement or a mediation concluded at an upper instance court) or to labor tribunal judgment (excluding that set forth in item (i)-2): The summary court, district court or family court where the settlement or the mediation was concluded (or, if the claim relating to the settlement or the mediation concluded at a summary court is not under the jurisdiction of the summary court, the district court having jurisdiction over the location of the summary court) or the district court before which the labor tribunal case was pending when the labor tribunal judgment was made

Article 21 of the Rules on Civil Execution
A written petition for compulsory execution shall contain a statement of the following matters, and an enforceable authenticated copy of a title of obligation shall be attached thereto:
(i) the names and addresses of the obligee and the obligor, as well as the names and addresses of their respective agents;
(ii) the indication of the title of obligation;
(iii) except in the case prescribed in item (v), the indication of the property that is the subject matter of compulsory execution and the desired method of compulsory execution;
(iv) when seeking compulsory execution against part of a claim pertaining to a title of obligation which orders payment of money, a statement to that effect and the scope of such part of the claim; and
(v) when seeking compulsory execution against any of the claims prescribed in the main clause of Article 414, paragraph (2) of the Civil Code and paragraph (3) of said Article, a desired judicial decision.

Article 23 of the Rules on Civil Execution
A written petition for a compulsory auction against real property shall be accompanied by the following documents, in addition to an enforceable authenticated copy of a title of obligation:
(i) where the real property is registered, and a person other than the obligor is recorded as an owner in the certificate of registered matters and the heading section of the registration record, a document proving that the real property is under the ownership of the obligor;
(ii) where the real property is land or a building and is not registered, the following documents:
(a) a document proving that the land or building is under the ownership of the obligor;
(b) with regard to the land, a land location picture prescribed in Article 2, item (ii) of the Real Property Registration Order (Cabinet Order No. 379 of 2004) and an acreage survey map prescribed in item (iii) of said Article; or
(c) with regard to the building, a building drawing prescribed in Article 2, item (v) of the Real Property Registration Order and floor plan(s) prescribed in item (vi) of said Article, as well as a document containing the items of information listed in (c) or (d) in the Attached Information column of row 32 of said Order;
(iii) where the real property is land, certificates of registered matters regarding a building(s) and a standing tree(s) as prescribed in Article 1 of the Act on Standing Trees (Act No. 22 of 1909 (hereinafter referred to as a “standing tree”)), which exist on the land;
(iv) where the real property is a building(s) or a standing tree(s), a certificate of registered matters regarding the land on which the building(s) or standing tree(s) exists; and
(v) a document certifying the amount of taxes and other public dues imposed on the real property

The final appeal is dismissed.
The appellant of final appeal shall bear the cost of the final appeal.

Concerning the reasons for petition for acceptance of final appeal argued by the appeal counsels, TSUBOI Shozo, et al.
1. In this case, the appellant of final appeal, who holds a title of obligation which indicates a monetary claim and for which X, an association without legal capacity, is the obligor, alleges that the pieces of real property indicated in the list of articles attached to the judgment in first instance (hereinafter referred to as the “Real Property”) belong collectively to all of the members of X and that the appellee of final appeal, who is the registered owner of the Real Property, is equivalent to a “person who possesses the subject matter of the claim” as prescribed in Article 23, paragraph (3) of the Civil Execution Act (hereinafter referred to as the “Act”), and based on this allegation, the appellant seeks, with regard to said title of obligation, the grant of a certificate of execution set forth in Article 27, paragraph (2) of the Act, for which the appellee and the Real Property are the obligor and the property subject to execution, respectively (this certificate of execution shall hereinafter be referred to as the “Certificate of Execution”).
The court of prior instance ruled as follows. In cases where the obligee, who holds a title of obligation which indicates a monetary claim and for which an association without legal capacity is the obligor, intends to carry out compulsory execution against the real property that collectively belongs to all of the members of the association (hereinafter referred to as the “real property under collective ownership of all of the members of the association”), if the representative of the association is registered as the owner of such real property, it is appropriate to construe the provisions of Article 23, paragraph (3) of the Act broadly and consider that the obligee is allowed to seek, with regard to said title of obligation, the grant of a certificate of execution for which the representative of the association and the real property under the collective ownership of all members are the obligor and the property subject to execution, respectively. In this case, however, since the appellee, who is the registered owner of the Real Property, is neither a member nor the representative of X, the appellant is not allowed to seek the grant of the Certificate of Execution. In conclusion, the court of prior instance dismissed the appellant’s claim.

2. We examine this case as follows. In cases where the obligee, who holds a title of obligation which indicates a monetary claim and for which an association without legal capacity is the obligor, intends to carry out compulsory execution against the real property under the collective ownership of all of the members of the association, if a third party is registered as the owner of the real property on behalf of the association, it is appropriate to construe that the obligee should file a petition for compulsory execution for which the association is the obligor, by attaching, to a written petition for compulsory execution, an authenticated copy of the title of obligation accompanied by a certificate of execution for which the association is the obligor, and also attaching a final and binding judgment rendered to the obligee, on one hand, and the association and the registered owner, on the other, to declare that the real property is under the collective ownership of all of the members of the association, or any other document equivalent thereto. Accordingly, the obligee is not allowed to construe the provisions of Article 23, paragraph (3) of the Act broadly and seek, with regard to said title of obligation, the grant of a certificate of execution set forth in Article 27, paragraph (2) of the Act, for which the registered owner and the real property are indicated as the obligor and the property subject to execution, respectively. The grounds for our reasoning are as follows.
With respect to real property under the collective ownership of all of the members of an association without legal capacity, the association itself cannot be registered as the owner (see 1970 (O) No. 232, judgment of the Second Petty Bench of the Supreme Court of June 2, 1972, Minshu Vol. 26, No. 5, at 957). Therefore, in cases where the obligee, who holds a title of obligation which indicates a monetary claim and for which an association without legal capacity is the obligor, intends to carry out compulsory execution against the real property under the collective ownership of all of the members of the association, the obligor indicated in the title of obligation does not coincide with the registered owner of the real property that is subject to compulsory execution. Despite that, if it is construed that it is a requirement, even in such situation, to apply completely the same execution procedure as that applicable to an ordinary type of compulsory execution against real property?which is to be enforced against the property owned by the obligor indicated in the title of obligation and for which the obligor can be designated as the registered owner of the property, it would be the same as if the Act refuses the realization of the right that the obligee holds against the association without legal capacity, and therefore it is inappropriate to adopt such construction. In the cases mentioned above, if a third party is registered as the owner of the real property under the collective ownership of all of the members of the association on behalf of the association, it is appropriate to construe that, following the rule applicable in the case of carrying out compulsory execution against the real property for which a person other than the obligor indicated as an owner in the title of obligation is recorded in the certificate of registered matters and the heading section of the registration record, the obligee is allowed to file a petition for compulsory execution for which the association is the obligor, by attaching, to a written petition, a final and binding judgment rendered to the obligee, on one hand, and the association and the registered owner, on the other, to declare that the real property is under the collective ownership of all of the members of the association, or any other document equivalent thereto (see Article 23, item (i) of the Rules on Civil Execution).
On the other hand, the provisions of Article 23, paragraph (3) of the Act anticipate the case of compulsory execution by reason of claims such as a claim for the delivery of a specified thing, whereas the procedure for granting a certificate of execution and the litigation to seek the grant of a certificate of execution, provided in Article 27, paragraph (2) of the Act, are not expected to include examination as to whether or not the property subject to compulsory execution belongs to the obligor indicated in the title of obligation. In light of these provisions, we should conclude that it is impermissible to construe the provisions of Article 23, paragraph (3) of the Act broadly so as to make them applicable to the case of compulsory execution against a monetary claim.

3. For the reasons stated above, the appellant is not allowed to seek the grant of the Certificate of Execution. The holdings of the court of prior instance which dismissed the appellant’s claim can be affirmed for the conclusion. The appeal counsels’ arguments cannot be accepted.

Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices. There are concurring opinions by Justice TAHARA Mutsuo and by Justice OKABE Kiyoko, respectively.

The concurring opinion by Justice TAHARA Mutsuo is as follows.
I am in agreement with the court opinion in relation to the handling of this case. However, in view of the fact that legal points at issue relevant to this case have not been discussed in detail thus far, I give some supplementary comments on the following points.
1. Permissibility of broad construction of Article 23, paragraph (3) of the Act
Concerning the case where the obligee, based on a title of obligation which indicates a monetary claim and which has been issued against an association without legal capacity, intends to carry out compulsory execution against the real property which collectively belongs to all of the members of the association and for which its representative, etc. is registered as the owner on behalf of the association, it has been a dominant view among scholars that the obligee is allowed to construe Article 23, paragraph (3) of the Act broadly and file a petition for compulsory execution, by obtaining a certificate of execution which has been issued against the registered owner.
As pointed out in the court opinion, Article 23, paragraph (3) of the Act provides for the case of compulsory execution against claims such as a claim for the delivery of a specified thing, and it would go far beyond the purpose of the provisions of said paragraph to construe that said paragraph is also analogically applicable to the case of compulsory execution against a monetary claim. Nevertheless, the aforementioned dominant view has been advocated, which was because there was no other appropriate way to carry out compulsory execution against the real property under the collective ownership of all of the members of an association without legal capacity.
However, in my opinion, as long as it is possible for the obligee to carry out compulsory execution against the real property under the collective ownership of all of the members of an association without legal capacity, by the method suggested in the court opinion, based on a title of obligation which indicates a monetary claim and which has been issued against the association, the aforementioned dominant view which construes the provisions of Article 23, paragraph (3) of the Act broadly, far beyond the original purpose thereof, should not be adopted on a practical level.
Furthermore, even where the legitimate obligor subject to execution in the execution procedure mentioned above is the association without legal capacity, according to said dominant view, the registered owner should unavoidably be the obligor subject to execution. This results in an abnormal pattern of execution procedure against a monetary claim, and in addition, it would cause various incidental problems, such as that, if a third party, who holds a title of obligation which has been issued against the registered owner as the legitimate obligor, participates in distributions of proceeds, it would be extremely difficult to eliminate such third party. There is no need to adopt said dominant view, while tolerating such difficult problems.

2. The registered owner of the real property under the collective ownership of all of the members of the association, and the compulsory execution procedure based on a monetary claim
When the obligee petitions for compulsory execution against real property based on a title of obligation which indicates a monetary claim, it is necessary, in the first place, that the obligor subject to execution coincides with the registered holder of the right for the real property. Since an association without legal capacity itself is not eligible to be the holder of any right, the right for the real property under the collective ownership of all of the members of the association is registered in the name of the person who represents the association, etc. (see the aforementioned judgment of the Second Petty Bench of the Supreme Court of June 2, 1972). Even against such real property, it should have been possible to carry out compulsory execution based on a title of obligation which indicates a monetary claim and which has been issued against the association without legal capacity. The question posed in this case is what requirements must be met to carry out compulsory execution under such circumstances.
In the section below, I will examine this question, focusing on the case where the connection between the registered owner and the association without legal capacity is clearly proved by means of a document with significant probative value (e.g. a title of obligation, the bylaw, etc. of the association; see 3 below), and the case where such connection is not so evident, respectively.
(1) Where the connection is evident from a title of obligation, the bylaw, etc. of the association without legal capacity, e.g. the registered owner is the representative of the association
Where the fact that the real property subject to execution is under the collective ownership of all of the members of the association without legal capacity is proved in the relationship between the obligee and the association, and the connection between the registered owner of the real property and the association is also clearly proved by means of a document, it may be permissible?because there is no other way to prove these facts available in the registration procedure?to perform an execution procedure, following the rule applicable to the case where the registered owner of the real property subject to execution coincides with the obligor subject to execution.
Specific examples of such case may be where the registered owner is (i) the representative of the association without legal capacity, (ii) all of the members of the association without legal capacity (as co-owners), or (iii) the person designated to be the registered owner through the procedure prescribed in the bylaw, etc. of the association without legal capacity (see 1991 (O) No. 1724, judgment of the Third Petty Bench of the Supreme Court of May 31, 1994, Minshu Vol. 48, No. 4, at 1065).
In these cases, as it is proved that the real property is under the collective ownership of all of the members of the association without legal capacity, the registered owner can be deemed to be in a position to submit to the execution procedure. Also, as a document which indicates, with significant probative value, the connection between the registered owner and the association without legal capacity, has been submitted, it would not be contrary to equity if the registered owner is made to assume the burden of filing a third party action in the situation where the registered owner disputes over his or her connection with the association without legal capacity (for example, where, in the relationship between the obligee and the association without legal capacity, there is a final and binding judgment declaring that the real property is under the collective ownership of all of the members of the association, and there is also a document which indicates the connection as mentioned above between the association and the registered owner, but the registered owner asserts that the real property is his/her own property).
(2) Where the connection between the current registered owner and the association without legal capacity is not evident from a title of obligation, etc., e.g. the registered owner is the former representative of the association without legal capacity
If the obligee carries out compulsory execution against the real property under the collective ownership of all of the members of an association without legal capacity, by using a title of obligation which indicates a monetary claim and which has been issued against the association, it is desirable, for the purpose of assuring a clear execution procedure, that the connection between the registered owner of the real property and the association without legal capacity is evidenced specifically as described in (1) above.
In cases where the registered owner is the former representative of the association without legal capacity, or where the association without legal capacity is a third party who can assert that the real property is under the collective ownership of all of the members of the association, the person who is in a position to be the registered owner within the association, such as the current representative of the association, is entitled to seek performance of a procedure for registration of transfer of ownership to him/herself (see the aforementioned judgment of the Second Petty Bench of the Supreme Court of June 2, 1972). Supposing that the obligee entitled to execution, when filing a petition for compulsory execution based on a title of obligation which indicates a monetary claim and which has been issued against an association without legal capacity, chooses a real property for which he/she cannot clearly prove the connection between the registered owner thereof and the association without legal capacity (the obligor subject to execution), it is because there is no other appropriate property subject to execution that the obligee acts as such. In such situation, it may be desirable that the obligee entitled to execution, by subrogation for the association without legal capacity (if the association without legal capacity itself is denied standing to sue to claim a registration, by subrogation for the person who is designated to be the registered owner within the association), seeks performance of a procedure for registration of transfer of ownership to the person who is supposed to be the registered owner within the association, go through the procedure for registration of transfer, and then perform an execution procedure by the method described in (1) above.
However, in cases where it is proved, in the relationship between the obligee and the association without legal capacity, that the real property subject to execution is under the collective ownership of all of the members of the association, and this fact is also proved in the relationship between the obligee and the registered owner by means of a document with significant probative value, the execution court can make a finding of a specific connection between the obligor subject to execution and the registered owner. If a compulsory execution procedure is commenced against the real property in such cases, it would be very unlikely to prejudice the rights of the registered owner and other persons interested in the real property. Therefore, it is construed that, following the rule for the case mentioned in (1) above, a compulsory execution procedure can be commenced against said real property. It would not be contrary to equity among the interested persons if the registered owner is made to assume the burden of filing a third party action in the situation where the registered owner disputes over his/her connection with the association without legal capacity.
For the reasons stated above, I found the view shown in the court opinion to be affirmable.

3. Meaning of documentary proof
When the obligee files a petition for compulsory execution against the real property under the collective ownership of all of the members of an association without legal capacity, by using a title of obligation which indicates a monetary claim and which has been issued against the association, the fact that the real property is under the collective ownership of all of the members of the association must be proved in the relationship between the obligee and the association, who is the obligor subject to execution, and this fact must also be proved in the relationship between the obligee and the registered owner of the real property by means of a document (see Article 23, items (i) and (ii)(a) of the Rules of Civil Execution).
Specific examples of such document may be, in the relationship between the obligee, on one hand, and the association without legal capacity and the registered owner, on the other, a final and binding judgment which has been issued against these parties and the court’s holdings shown in the reasons for the judgment (including cases where the judgment has been issued against either of them, but it is evident from the reasons for the judgment that the real property is under the collective ownership of all of the members of the association, e.g. a judgment upholding a claim based on the obligee’s subrogation right to seek performance of a procedure of registration of transfer of ownership to the representative of the association), a record of settlement, a notarial deed which states that the real property is under the collective ownership of all of the members of the association, and the bylaw of the association (established in the form of a notarial deed or any other equivalent document with significant probative value) which provides that a certain person among the members (an individual or a certain officer, etc.) shall be designated to be the registered owner.

4. Procedures for provisional remedies
Where the registered owner of the real property under the collective ownership of all of the members of an association without legal capacity has an evident connection with the association, as described in 2(1) above (e.g. the registered owner is the representative of the association), it is indisputable that the obligee may file a petition for provisional seizure by proving that the real property is under the collective ownership of all of the members of the association.
However, where it is difficult to prove the connection between the current registered owner and the association without legal capacity directly by means of a document, as discussed in 2(2), it would be rather difficult on a practical level, in terms of how to prove such connection, to file a petition for provisional seizure by suing the registered owner. In such situation, it would be more suitable on a practical level to follow a procedure for a provisional disposition that prohibits the disposition of the property based on the obligee’s subrogation right, mentioned in 2(2) above. From this viewpoint, the availability of litigation by subrogation explained in 2(2) above should be acknowledged.

Justice OKABE Kiyoko agrees with the concurring opinion by Justice TAHARA Mutsuo.

Justice KONDO Takaharu
Justice HORIGOME Yukio
Justice NASU Kohei
Justice TAHARA Mutsuo
Justice OKABE Kiyoko