2016.03.18

2015 (Kyo) 15

Minshu Vol. 70, No. 3

Decision concerning whether or not a provisional disposition prohibiting the disposal of property under the Civil Provisional Remedies Act may be petitioned by designating the right to demand an auction prescribed in Article 59, paragraph (1) of the Act on Building Unit Ownership, etc. as the right to be preserved by the provisional disposition

Case of appeal with permission against the ruling to dismiss the appeal against a ruling to dismiss a petition for revocation of a provisional disposition and a ruling to dismiss a petition for an order of provisional disposition

Decision of the Second Petty Bench, dismissed

Tokyo High Court, Decision of April 17, 2015

A provisional disposition prohibiting the disposal of property, which is to be executed by the method prescribed in Article 53 or Article 55 of the Civil Provisional Remedies Act, may not be petitioned by designating the right to demand an auction prescribed in Article 59, paragraph (1) of the Act on Building Unit Ownership, etc. as the right to be preserved by the provisional disposition.

Article 59, paragraph (1) of the Act on Building Unit Ownership, etc., Articles 53 and 55 of the Civil Provisional Remedies Act



Act on Building Unit Ownership, etc.

Article 59

(1) In the case prescribed in Article 57, paragraph (1), when conduct as set forth in Article 6, paragraph (1) significantly impedes the unit owners' community life and when there is difficulty in removing such impediment and securing the use of a common element or preserving the other unit owners' community life by any other means, all of the other unit owners or the incorporated management association may, based on a meeting resolution, file an action demanding that the unit ownership and the right to use the grounds held by the unit owner who is involved in such conduct be auctioned.

Civil Provisional Remedies Act

Article 53

(1) A provisional disposition prohibiting the disposal of property in order to preserve the right to claim the registration (excluding provisional registration) of a right to real property (hereinafter referred to as the "right to claim registration") is executed by registration of the prohibition of disposal.

(2) A provisional disposition prohibiting the disposal of property in order to preserve the right to claim a registration with regard to the preservation, establishment, or change of a right to real property other than an ownership right is executed by provisional registration through a provisional disposition (hereinafter referred to as a "provisional registration for the purpose of preservation"), together with the registration of the prohibition of disposal referred to in the preceding paragraph.

(3) The provisions of Article 47, paragraphs (2) and (3), and the provisions of Article 48, paragraph (2), Article 53, and Article 54 of the Civil Execution Act apply mutatis mutandis to the execution of a provisional disposition prohibiting the disposal of property set forth in the preceding two paragraphs.

Article 55

(1) When an order of provisional disposition is issued to prohibit the disposal of a building in order to preserve the right to claim the removal of the building and the surrender of the land on which it stands, the provisional disposition is executed by registration of the prohibition on the disposal of the property.

(2) The provisions of Article 47, paragraphs (2) and (3), and the provisions of Article 48, paragraph (2), Article 53, and Article 54 of the Civil Execution Act apply mutatis mutandis to the execution of a provisional disposition prohibiting the disposal of property set forth in the preceding paragraph.

The appeal is dismissed.

The appellant shall bear the cost of the appeal.

Concerning the reasons for appeal argued by the appeal counsel, KUROSU Masahiro and KAWASAKA Akifumi

1. It is appropriate to construe that a provisional disposition prohibiting the disposal of property, which is to be executed by the method prescribed in Article 53 or Article 55 of the Civil Provisional Remedies Act, may not be petitioned by designating the right to demand an auction prescribed in Article 59, paragraph (1) of the Act on Building Unit Ownership, etc. as the right to be preserved by the provisional disposition. The reasons for this determination are as follows.

Article 53 of the Civil Provisional Remedies Act provides for the method for executing a provisional disposition prohibiting the disposal of property which is issued to preserve the right to claim registration prescribed in paragraph (1) of said Article, and Article 55 of said Act provides for the method for executing a provisional disposition prohibiting the disposal of a building which is issued to preserve the right to demand the removal of the building and the surrender of its grounds. The right to demand an auction of the building unit ownership and the right to use the grounds of the building under the provisions of Article 59, paragraph (1) of the Act on Building Unit Ownership, etc. cannot be regarded as either of these rights to demand prescribed in Article 53 or Article 55 of the Civil Provisional Remedies Act. Said right to demand an auction is a right by which, in the event that a specific unit owner engages in any act that is contrary to the common benefit of all of the unit owners or is likely to engages in such act, the other unit owners, etc., by reason of such situation, intend to put the unit ownership, etc. of the unit owner involved in said act up for an auction and have it disposed of compulsorily and thereby eliminate the relevant unit owner from the relationship of their unit ownership in order to maintain their community life. Thus, even if the relevant unit owner disposes of his/her unit ownership, etc. voluntarily, this cannot be deemed to be inconsistent with such purport of the right to demand an auction, and hence it is inappropriate to prohibit such disposal.

2. The determination by the court of prior instance that is in line with this reasoning can be affirmed as justifiable. The appeal counsel's arguments cannot be accepted.

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

Justice ONUKI Yoshinobu

Justice CHIBA Katsumi

Justice ONIMARU Kaoru

Justice YAMAMOTO Tsuneyuki