2011.03.09

2009 (Ku) 1027

Minshu Vol. 65, No. 2

Decision concerning an out-of-court settlement in which the parties agree to terminate the appeal case, and the appellant's interest to maintain the appeal

Case of special appeal against the ruling to modify the adjudication on division of estates

Decision of the Third Petty Bench, dismissed without prejudice

Osaka High Court, Decision of October 7, 2009

Where the appellant and the appellee, after the filing of an appeal, have reached an out-of-court settlement in which they agree to terminate the appeal case, the appellant has lost the interest to maintain the appeal.

Article 695 of the Civil Code, Part III, Chapter III of the Code of Civil Procedure (Appeal against Ruling)

Article 695 of the Civil Code
A settlement shall become effective when the parties to a dispute promise to settle the dispute through reciprocal concessions.

Part III, Chapter III of the Code of Civil Procedure (Appeal against Ruling)
Article 328
(1) An appeal against a ruling may be filed against an order or direction that has dismissed without prejudice a petition concerning court proceedings, without oral argument.
(2)　If an order or direction is made with regard to matters for which a judicial decision may not be made by an order or direction, an appeal against a ruling may be filed against it.

Article 329
(1) A party who disagrees with a judicial decision made by an authorized judge or commissioned judge may make an objection to the court in charge of the case; provided, however, that this shall apply only where an appeal against a ruling may be filed against the judicial decision if it is made by the court in charge of the case.
(2)　An appeal against a ruling may be filed against a judicial decision on the objection set forth in the preceding paragraph.
(3)　For the purpose of application of the provision of paragraph (1) in cases where the Supreme Court or a high court is the court in charge of the case, the phrase "the court in charge of the case" in the proviso to said paragraph shall be deemed to be replaced with "a district court."

Article 330　An appeal against a ruling may further be filed against an order made by the court in charge of an appeal against a ruling only on the grounds that the order contains a misconstruction of the Constitution or any other violation of the Constitution or that there is a violation of laws or regulations that apparently affects an order.

Article 331　With regard to an appeal against a ruling and court proceedings in the court in charge of an appeal against a ruling, unless contrary to the nature thereof, the provisions of Chapter I shall apply mutatis mutandis; provided, however, that with regard to an appeal against a ruling set forth in the preceding Article and court proceedings for such appeal, the provisions of the preceding Chapter concerning a final appeal against a final judgment made by the court of second instance or the court of first instance and court proceedings in the final appellate instance shall apply mutatis mutandis.

Article 332　An immediate appeal shall be filed within an unextendable period of one week from the day on which a notice of the judicial decision is received.

Article 333　The court or the presiding judge which or who has made the judicial decision of prior instance, when it or he/she finds that an appeal against a ruling is well-grounded, shall correct the judicial decision.

Article 334
(1) An appeal against a ruling, only if it is filed as an immediate appeal, shall have the effect of stay of execution.
(2)　The court in charge of an appeal against a ruling or the court or the presiding judge which or who has made the judicial decision of prior instance, until an order is made on the appeal against a ruling, may order stay of execution of the judicial decision of prior instance or any other necessary disposition.

Article 335　The court in charge of an appeal against a ruling, if it does not hold oral argument on the appeal against a ruling, may interrogate the appellant and any other interested person.

Article 336
(1) Against an order and a direction made in a district court or summary court against which no appeal may be entered as well as an order and a direction made in a high court, a special appeal against a ruling may further be filed with the Supreme Court on the grounds that the respective judicial decision contains a misconstruction of the Constitution or any other violation of the Constitution.
(2)　The appeal against a ruling set forth in the preceding paragraph shall be filed within an unextendable period of five days from the day on which a notice of the judicial decision is received.
(3)　With regard to an appeal against a ruling set forth in paragraph (1) and court proceedings for such appeal, unless contrary to the nature thereof, the provisions concerning an appeal set forth in Article 327(1) and court proceedings in the appellate instance and the provision of Article 334(2) shall apply mutatis mutandis.

Article 337
(1) Against an order and direction made in a high court (excluding an order and direction on an appeal against a ruling set forth in Article 330 and a petition set forth in the following paragraph), in addition to the case under the provision of paragraph (1) of the preceding Article, an appeal may be specially filed with the Supreme Court only if the high court permits it pursuant to the provision of the following paragraph; provided, however, that this shall apply only where an appeal against a ruling may be filed against the respective judicial decision if it is made by a district court.
(2)　Where the judicial decision set forth in the preceding paragraph contains a determination that is inconsistent with precedents rendered by the Supreme Court (or precedents rendered by the former Supreme Court or those rendered by high courts as the final appellate court or the court in charge of an appeal against a ruling, if there are no precedents rendered by the Supreme Court) or where said judicial decision is found to involve material matters concerning the construction of laws and regulations, the high court set forth in said paragraph, upon petition, by an order, may permit an appeal against a ruling.
(3)　The petition set forth in the preceding paragraph may not state the grounds prescribed in paragraph (1) of the preceding Article as reasons for petition.
(4)　Where permission is granted under the provision of paragraph (2), it shall be deemed that an appeal against a ruling set forth in paragraph (1) is filed.
(5)　The Supreme Court may quash the judicial decision of prior instance if there is a violation of laws or regulations that apparently affects a judicial decision.
(6)　The provisions of Article 313, Article 315 and paragraph (2) of the preceding Article shall apply mutatis mutandis to the petition set forth in paragraph (2), the provision of Article 318(3) shall apply mutatis mutandis where the court grants permission under the provision of paragraph (2), and the provisions of the second sentence of Article 318(4) and paragraph (3) of the preceding Article shall apply mutatis mutandis where permission is granted under the provision of paragraph (2).

The appeal is dismissed without prejudice.
The appellant shall bear the cost of the appeal.

1. X died in 2002, and while division of her estate was yet to be completed, one of the children born to X and her husband (Y, who had died before X), Z, died in 2007. In this case, with regard to X's estate indicated in List of Estate 1, attached to the adjudication in first instance, as well as Z's estate indicated in List of Estate 2, attached to the same, the appellee, another child of X and Y, filed a petition for division of estates against the appellant, X's child born to a man other than Y. This appeal was filed by reason that the provisions of the proviso to Article 900, item (iv) of the Civil Code, which shall apply to the inheritance of X's estate and the inheritance of Z's estate, are in violation of Article 14, paragraph (1) of the Constitution and other provisions.

2. This case was referred from this petty bench to the Grand Bench. When the Grand Bench contacted the appellee to designate the date for oral argument, the appellee argued that after the appeal was filed, he/she reached a settlement with the appellant to totally solve the dispute relating to the inheritance of X's estate and the inheritance of Z's estate, and therefore the appeal case was already terminated. With such argument, the appellee presumably meant to challenge the legality of the appeal.

3. Having conducted examination by this court's authority, we found the outline of the factual developments after the filing of the appeal as follows.
(1) The appellant filed the appeal through an attorney retained as his/her appeal counsel, but reconsidered that it would be better to solve the case quickly rather than continuing to dispute, and without consulting the attorney, the appellant negotiated a settlement directly with the appellee. Around June 2010, the parties reached an agreement to the effect that the amount of compensation to be paid by the appellee shall be increased from 8,670,499 yen, the amount determined by the decision in prior instance, to 10,500,000 yen (this settlement shall hereinafter be referred to as the "Settlement"). Around June 7, as his/her performance of the Settlement, the appellee carried out the necessary procedure for the appellant with regard to the time deposit indicated in 2(ii) of List of Estate 2, attached to the adjudication in first instance, and delivered the deposit passbook (the amount of deposit: 10 million yen) and 500,000 yen in cash to the appellant. Upon making the Settlement, the appellant did not mention such that he/she would maintain the appeal even after the Settlement was reached, and accordingly, the appellee thought that the appeal case was to be terminated by the Settlement.
(2) In July 2010, the appellant was notified from his/her attorney that the case had been referred to the Grand Bench, and only at that time, the appellant told the attorney that he/she had reached a settlement with the appellee and had already received compensation money as the appellee's performance of the settlement. Nevertheless, the appeal was not withdrawn. There appears to be no reasonable ground for maintaining the appeal even after the Settlement was reached.

4. According to the above, it is obvious that the Settlement, with regard to the dispute relating to the inheritance of X's estate and the inheritance of Z's estate, was predicated on the decision in prior instance and was intended for agreeing on matters such as the increase in the amount of compensation money to be paid by the appellee, so as to totally solve the dispute, and in the Settlement, the appellant intended to agree to terminate the appeal case. Even supposing that the appellant mistakenly estimated the possibility that his/her claim would be upheld as a result of the appeal, there is no room for the Settlement to be declared invalid due to mistake.
Where the appellant and the appellee, after the filing of the appeal, have reached an out-of-court settlement in which they agree to terminate the appeal case, the appellant has lost the interest to maintain the appeal. Accordingly, in this case, the appellant has lost such interest due to the Settlement having been reached, and the appeal should inevitably be dismissed as unlawful without prejudice.

Therefore, having received the case as referred from the Grand Bench, we render the decision in the form of the main text by the unanimous consent of the Justices.

Justice NASU Kohei
Justice TAHARA Mutsuo
Justice OKABE Kiyoko
Justice OTANI Takehiko