2020.03.06

2019 (Ju) 6

Minshu Vol. 74, No. 3

Judgment concerning the case in which the Court ruled that the determination of the court of prior instance contains an illegality in that it immediately determined that a judicial scrivener, who was mandated to file an application for the registration of the transfer of the ownership of real property by means of registration of ownership by omitting registration of an owner situated between the initial and final owners, committed a violation of the duty of care in relationship with the intermediate person in the registration, without sufficient examination of the content, etc. of the roles the judicial scrivener had been justifiably expected to play

Case seeking compensation for loss or damage

Judgment of the Second Petty Bench, quashed and remanded

Tokyo High Court, Judgment of September 19, 2018

With regard to the real property whose registered owner is A, a sales contract in which A is the seller and B is the buyer, a sales contract in which B is the seller and X is the buyer, and a sales contract in which X is the seller and C is the buyer were concluded in this order, and an application for the registration of the transfer of the ownership from A to B (hereinafter referred to as the "Application for the Former Case") and an application for the registration of the transfer of the ownership to C by means of registration of ownership by omitting registration of an owner situated between the initial and final owners (hereinafter referred to as the "Application for the Latter Case") were filed at the same time, but the Application for the Latter Case was withdrawn as it turned out to have been filed by a person who was not authorized to file it, and X claimed compensation for loss or damage against Y, who was a judicial scrivener mandated by B and C to file the Application for the Latter Case, based on a tort on the grounds that Y committed a violation of the duty of care as a judicial scrivener. Regarding this case, the judgment of the court of prior instance contains an illegality under the circumstances held in (1) to (4) below in that it immediately determined that Y committed a violation of the aforementioned duty of care, without sufficiently examining the content of the roles that Y was justifiably expected to play in relationship with X and the degree of Y's involvement, etc., even considering the fact that Y attended a meeting in which the participants were scheduled to confirm documents that should be used for filing the Application for the Former Case and the Application for the Latter Case, and was aware of problems such as a discrepancy in the year of birth stated in two documents presented as A's registered seal certificates.

(1) When Y was mandated to file the Application for the Latter Case, the specific content, etc. of the aforementioned sales contracts and the registrations pertaining to the Application for the Former Case and the Application for the Latter Case had already been decided.

(2) Y was not specifically mandated to conduct investigation, etc. concerning whether the Application for the Former Case was filed by a person who was supposed to be the applicant.

(3) An attorney was mandated to file the Application for the Former Case, and the power of attorney pertaining to the aforementioned mandate was affixed with a certification by a notary to prove the identity of the mandator, A.

(4) X is a real property agency, and X's representative attended the aforementioned meeting with a real property broker requested by X, etc. and confirmed the aforementioned problems, etc. with these persons.

(There is an opinion.)

Article 709 of the Civil Code



Civil Code

(Compensation for Loss or Damage in Torts)

Article 709

A person that has intentionally or negligently infringed the rights or legally protected interests of another person is liable to compensate for damage resulting in consequence.

Of the judgment in prior instance, the part against the appellant of final appeal is quashed.

Regarding the part referred to in the preceding paragraph, the case is remanded to the Tokyo High Court.

Concerning Reason III for a petition for acceptance of final appeal stated by the counsel for final appeal, HIRANUMA Naoto, et al.

1. Regarding the real property stated in the Item List attached to the judgment in first instance (hereinafter referred to as the "Real Property"), a sales contract in which A, the registered owner of the Real Property, is the seller and Godo Kaisha Onlife is the buyer (hereinafter referred to as the "First Sales Contract"), a sales contract in which Onlife is the seller and the appellee is the buyer (hereinafter referred to as the "Second Sales Contract"), and a sales contract in which the appellee is the seller and Ardepro Co., Ltd. is the buyer (hereinafter referred to as the "Third Sales Contract") were concluded in this order, and an application for the registration of the transfer of the ownership from A to Onlife (hereinafter this application is referred to as the "Application for the Former Case" and this registration is referred to as the "Registration of the Former Case") and an application for the registration of the transfer of the ownership from Onlife to Ardepro by means of registration of ownership by omitting registration of an owner situated between the initial and final owners (hereinafter this application is referred to as the "Application for the Latter Case" and this registration is referred to as the "Registration of the Latter Case") were filed at the same time. However, the Application for the Latter Case was withdrawn after the Application for the Former Case turned out to have been filed by a person who was not authorized to file the application.

In this case, the appellee alleged that the appellant, who is a judicial scrivener mandated to file the Application for the Latter Case, committed a violation of the duty of care of failing to conduct investigation, etc. concerning whether the Application for the Former Case was filed by a person who was supposed to be the applicant, and sought the appellant's payment of compensation for loss or damage of 348,000,000 yen and delay damages based on a tort.

2. The outline of the facts determined by the court of prior instance is as follows.

(1) A. The appellee is a stock company intended to sell and buy, manage, and otherwise handle real property, and the appellant is a judicial scrivener.

B. B is a clerk of a law office established by an attorney, C (hereinafter referred to as "Attorney C"; hereinafter this law office is referred to as the "Law Office").

C. The registered owner of the Real Property as indicated in the register was A, who is a foreign national, as of August 2015, and D is a person who was pretending to be A's agent.

(2) A. Around August 2015, D, Onlife, the appellee, and Ardepro decided that A would sell the Real Property to Onlife (First Sales Contract), Onlife would then sell it to the appellee at 650,000,000 yen (Second Sales Contract), and the appellee would sell it to Ardepro at 681,000,000 yen (Third Sales Contract), and agreed that they would affix their seals to the written contracts pertaining to these transactions and make relevant payments on September 10, 2015. Upon the appellee's request, Kabushiki Kaisha Argus engaging in real property brokerage business had come to broker the Second Sales Contract with a reward of 31,000,000 yen.

B. With regard to the transfers of the ownership pertaining to the Second Sales Contract and the Third Sales Contract, Onlife, the appellee, and Ardepro agreed to conduct the registration of the transfer of the ownership from Onlife to Ardepro by means of registration of ownership by omitting registration of an owner situated between the initial and final owners (Registration of the Latter Case). Incidentally, regarding the Application for the Former Case, Attorney C was supposed to be mandated to file the application, and the Application for the Former Case and the Application for the Latter Case were supposed to be filed by a method in which regarding two or more registrations of right with respect to the same real property, if a person who is to be a registered right holder in the former registration becomes a person obliged to register for the latter registration, provision of information for registration identification at the time of filing an application for the latter registration can be omitted by filing the applications for the former and latter registrations at the same time while clarifying the order of the registrations (Article 67 of the Ordinance on Real Property Registration; hereinafter such application method is referred to as the "filing of applications for consecutive cases").

C. After that, the appellant was mandated by Onlife and Ardepro to file the Application for the Latter Case with a reward of about 130,000 yen. When receiving the aforementioned mandate, the appellant was not specifically instructed to conduct investigation, etc. concerning whether the Application for the Former Case was filed by a person who was supposed to be the applicant.

(3) A. At 2:00 p.m. on September 7, 2015, Ardepro's person in charge, the appellant, the appellee's representative, the representative of Argus, B, the self-proclaimed A, and D attended a meeting held at the Law Office in which they were scheduled to confirm, etc. documents that should be used for filing the Application for the Former Case and the Application for the Latter Case (hereinafter this meeting is referred to as the "Meeting"). The appellant attended the Meeting at the request of Ardepro, while Attorney C did not attend the Meeting.

B. At the Meeting, facing the other attendees, the self-proclaimed A stated that his/her date of birth was MM DD, 1924. However, A's date of birth was stated as "MM DD, 1926" on a document which B had previously received from D as A's registered seal certificate dated July 26, 2015 (hereinafter referred to as the "Registered Seal Certificate for Another Case"), while it was stated as "MM DD, 1924" on a document which the self-proclaimed A, who was made aware of this point by the aforementioned attendees, presented as a registered seal certificate dated July 27, 2015 (hereinafter referred to as the "Registered Seal Certificate"). Therefore, the Law Office made copies of the Registered Seal Certificate for Another Case and the Registered Seal Certificate but could not confirm the characters "複製" (reproduction) on either of them. Consequently, D stated that D would bring a new registered seal certificate by the aforementioned date of the payments, and there were no objections from the other attendees.

Incidentally, both the Registered Seal Certificate for Another Case and the Registered Seal Certificate had an appearance of a registered seal certificate.

C. During the Meeting, the appellant was presented by B with the written application for the Registration of the Former Case, the power of attorney for the Application for the Former Case addressed to Attorney C in the name of A, which was affixed with a certification by a notary to the effect that A signed and sealed the power of attorney in the presence of the notary and the notary had A prove his/her identity through submission of a passport and registered seal certificate (hereinafter referred to as the "Power of Attorney"), a document clarifying the fact that Attorney C had an interview with A at a meeting room of the Law Office from 2:30 p.m. on September 7, 2015 and the reasons for having found that A is the registered right holder who is authorized to file the Application for the Former Case (hereinafter referred to as the "Document for Identification Confirmation"), etc. as documents that should be used for the Application for the Former Case, in addition to the Registered Seal Certificate. The appellant confirmed these documents, for example, by formally checking mutual consistency among the documents, but made no special remarks.

D. On September 8, 2015, at the Shibuya Branch of the Tokyo Legal Affairs Bureau, B confirmed that no request to prevent wrongful registration had been made.

(4) A. On September 10, 2015, D, B, Onlife's person in charge, the appellee's representative, the representative of Argus, and the appellant, etc. affixed their seals to the written contracts pertaining to the First Sales Contract, the Second Sales Contract, and the Third Sales Contract, conducted other related procedures, and also confirmed the documents that should be used for filing the Application for the Former Case and the Application for the Latter Case. The Registered Seal Certificate was included in the aforementioned documents, but the appellee and Ardepro made payments for the Second Sales Contract and the Third Sales Contract on September 10, 2015, without indicating this point again.

B. On September 10, 2015, the appellant filed the Application for the Latter Case at the Shibuya Branch of the Tokyo Legal Affairs Bureau together with the Application for the Former Case by means of the filing of applications for consecutive cases. The Document for Identification Confirmation was not included in the documents used for filing the Application for the Former Case.

(5) After that, the appellant received explanations about the fact that the Registered Seal Certification had turned out to be a forgery, etc. from the aforementioned branch, and, therefore, the appellant withdrew the Application for the Latter Case on October 16, 2015. On November 17, 2015, the Application for the Former Case was dismissed as an application filed by a person who was not authorized to file the application.

3. Based on the aforementioned facts, etc., the court of prior instance determined as follows and upheld the appellee's claims to the extent of seeking the appellant's payment of 324,000,000 yen and delay damages accrued thereon.

In consideration of the expertise and sense of responsibility required for a judicial scrivener, a judicial scrivener who was mandated to make the latter registration out of registrations for which applications are filed by means of the filing of applications for consecutive cases has the following duty of care: where a ground for dismissal of the application for the former registration or any other ground that suggests the reasonable possibility that the registration as applied would not be realized has become clear, the judicial scrivener should conduct further investigation on the matters concerning the application for the former registration, etc. and should give explanations about the result of the investigation on the aforementioned ground, make a recommendation for the suspension of payment for a transaction relating to the relevant registration, make a notification of the possibility of his/her resignation if such recommendation is not accepted, and take other actions, not only to the mandator of the application for the registration but also to those who have a great interest in the realization of the latter registration.

The Registered Seal Certificate conflicts with the Registered Seal Certificate for Another Case in the statement of the year of birth, and the characters "複製" could not be confirmed on either of those certificates when the Law Office copied them. These facts strongly suggest that the Application for the Former Case filed together with the Application for the Latter Case by means of the filing of applications for consecutive cases was filed by a person other than the person who was supposed to be the applicant. In addition, the fact that the appellant had not been able to have direct contact with Attorney C with regard to the Application for the Former Case is also a grave sign of involvement of a problem in the Application for the Former Case. Based on these, it can be said that the appellant mandated to file the Application for the Latter Case had the duty of care to not only point out the aforementioned facts to the appellee, who has a great interest in the realization of the Registration of the Latter Case, but also to conduct further investigation concerning whether the Application for the Former Case was filed by a person who was supposed to be the applicant, warn the appellee about the risk that the Application for the Latter Case would not be realized based on the investigation result, and recommend the appellee conduct the suspension, etc. of payment for a transaction pertaining to the Registration of the Latter Case. Therefore, the appellant is considered to have failed to perform the aforementioned duty of care and is thus liable for the tort against the appellee.

4. However, the aforementioned determination of the court of prior instance cannot be upheld for the following reasons.

(1) The Judicial Scriveners Act is intended to contribute to the appropriate and smooth implementation of procedures relating to registration, etc., thereby contributing to the protection of the rights of the citizens (Article 1), and in principle, it has judicial scriveners exclusively conduct business relating to registration, etc. as those engaging in the business of agency for procedures relating to registration, etc. (Article 3, paragraph (1) and Article 73, paragraph (1)). Said Act also provides that judicial scriveners must have a mastery of the laws, regulations, and practices involved in the business and conduct business in a fair and sincere manner (Article 2), and thereby, has judicial scriveners have the public interest responsibility as professionals in the procedures relating to registration, etc.

In light of such nature of the duties and practices of judicial scriveners and the purpose of the real property registration system that aims at publicly notifying rights relating to real property and ensuring the safety of transactions (Article 1 of the Real Property Registration Act), it is considered that a judicial scrivener mandated to file an application for registration, etc. has, in relationship with the mandator, not only the obligation to formally confirm mutual consistency among documents that should be used for filing the application for the registration but also the obligation to take appropriate measures, including giving an alert, so that the registration pertaining to the application for registration becomes consistent with the substantive right relating to the real property in the case where there is a reasonable ground for suspecting that the application for registration was filed by a person other than the person who was supposed to be the applicant, etc. in the process of the aforementioned confirmation, etc., based on the mandate. The necessity, reasonable scope, and degree of the aforementioned measures are determined in accordance with the specific content of the mandate contract pertaining to the mandate, but, in interpreting the content, it is reasonable to make a determination in comprehensive consideration of various circumstances, such as the background to the mandate, the existence or absence and degree of involvement of the judicial scrivener in the transaction relating to the registration, the degree of the mandator's knowledge about and experience in real property transactions, the existence or absence and form of involvement of other qualified agents and real property brokers, etc. in the transaction relating to the application for registration, the degree of suspicion relating to the aforementioned ground, and the degree of those persons' recognition of the aforementioned ground and their behaviors.

However, as the aforementioned obligations are established based on a mandate contract, it is impossible to make a similar determination in relation to a third party other than the mandator. However, in light of the aforementioned content of judicial scriveners' practices and the public interest nature of their duties and the purpose and function of the real property registration system, it should be said that where a judicial scrivener mandated to file an application for a registration can recognize the fact that a third party other than the mandator has an important and objective interest in the obtainment or loss or transfer of a right pertaining to the relevant registration, if the third party has a justifiable expectation for receiving a certain alert, etc. from the judicial scrivener, the judicial scrivener also has the obligation to take appropriate measures, including giving an alert, as mentioned above, in relation to the third party and might be held responsible under tort law if he/she fails to perform that obligation. In making a determination concerning whether these obligations exist or the scope and degree of the obligations, various circumstances listed above should also be taken into consideration. It is reasonable to sufficiently examine, in particular, the degree of suspicion, the degree of the third party's knowledge about and experience in real property transactions, the existence or absence and form, etc. of involvement of other qualified agents or real property brokers, etc. who protect the interest of the third party, and to make a determination in accordance with the content of the roles of the judicial scrivener and the degree of involvement thereof, etc. in comprehensive consideration of these circumstances.

(2) When this determination is applied to this case, based on the aforementioned facts, etc., the appellee has not concluded a mandate contract with the appellant and falls under a third party other than the mandator. However, the appellee is a person in the middle of the Registration for the Latter Case, which is the registration of ownership by omitting registration of an owner situated between the initial and final owners, that was mandated to the appellant, and has an important and objective interest in the transfer of the ownership pertaining to the Registration of the Latter Case as the buyer in the Second Sales Contract and the seller in the Third Sales Contract. It is clear that the appellant could recognize these facts.

The appellant is considered to have been aware of the problems, such as the existence of a discrepancy in the year of birth stated in the two documents presented as A's registered seal certificates and have had a reasonable suspicion. Incidentally, there seem to be no circumstances where the appellee asked any other qualified agent to protect its interest.

However, the specific content, etc. of a series of sales contracts, the Registration of the Former Case, and the Registration of the Latter Case relating to the Real Property had already been decided as of the time when the appellant was mandated, and the appellant was originally not specifically mandated to conduct investigation, etc. concerning whether the Application for the Former Case was filed by a person who was supposed to be the applicant. Furthermore, Attorney C, who is a qualified agent, had already been mandated to file the Application for the Former Case, and the Power of Attorney pertaining to the aforementioned mandate was affixed with a certification by a notary to the effect that the identity of the mandator, A, was proven through submission of a registered seal certificate, etc. In addition, the appellee is a real property agency, and its representative attended the Meeting with the representative of Argus, which is a real property broker requested by the appellee, and Ardepro's person in charge, and confirmed the problem with the registered seal certificates, etc. with them. It seems that the appellant personally pointed out the discrepancy between the registered seal certificates.

Based on the above, under the aforementioned circumstances, it is difficult to immediately say that the appellant had the obligation to take appropriate measures, including giving an alert, as mentioned above, in relation to the appellee, who falls under a third party other than the mandator, without examining such points as the content of the roles that the appellant was justifiably expected to play and the degree of involvement, etc., and beyond that, it cannot be said that the appellant had the duty of care to actively conduct further investigation and recommend the suspension of payment, etc. in relationship with the appellee. Therefore, the determination of the court of prior instance should be considered to contain violation of laws and regulations that obviously affects the judgment in that it immediately determined that the appellant committed a violation of the duty of care as a judicial scrivener, without sufficiently examining the aforementioned points.

5. The counsel's arguments are well-grounded, and of the judgment in prior instance, the part against the appellant should inevitably be quashed. This case is remanded to the court of prior instance to have the aforementioned points further be examined.

Accordingly, the Court unanimously decides as set forth in the main text. Incidentally, there is an opinion stated by Justice KUSANO Koichi.

The opinion stated by Justice KUSANO Koichi is as follows.

I agree with the conclusion of the majority opinion and also have almost the same view as the majority opinion with regard to the reasons for reaching the conclusion. However, I would like to explain my feelings in detail about the purport of quashing the judgment in prior instance and remanding the case to the court of prior instance.

1. I first define two words. Hereinafter, the term "occupational professional" refers to a person who makes a living by providing his/her expertise, which he/she has acquired through many years of study, for value, and the term "client" refers to a person who has concluded a contract with an occupational professional and has secured a promise from the occupational professional regarding the provision of his/her expertise.

Occupational professionals are helpful for society, and their helpfulness increases as society becomes more complicated and information required for having a social life becomes more sophisticated. As long as this is true, it is appropriate to deny that an occupational professional be held legally liable for the reason that he/she failed to provide his/her expertise to a person other than his/her client unless there are special circumstances. This is because supposing the situation that an occupational professional comes across a person who seeks the provision of expertise from him/her, if the obligation as an occupational professional to provide his/her expertise to said person is affirmed even if said person is not a client, it is no longer necessary for any persons who seek expertise to bother to pay rewards to become clients, which will make it difficult for occupational professionals to form a stable basis of their livelihoods. In addition to this, formation of a high relationship of trust between an occupational professional and a client is required to improve the quality of service to be provided by the occupational professional to the client. In order to achieve it, the behavioral principle that an occupational professional never gives advice about a requested matter to a person other than the client without obtaining the client's consent must be appreciated. In this regard, it is appropriate to deny that an occupational professional is held legally liable for the reason that he/she failed to provide his/her expertise to a person other than his/her client.

However, as with any theory, there are also special circumstances that should be treated as exceptions with regard to the aforementioned principle. A typical example is the case where an unexpected situation that requires the provision of expertise arises under such circumstances where there is only one occupational professional who can handle the case. As another example, the case where the following three conditions are met at the same time can also be evaluated as a special circumstance:

(i) there is a person who sincerely expects that he/she can receive the provision of expertise from an occupational professional though he/she is not legally a client of the occupational professional;

(ii) there is a justifiable ground for said person to have such expectation; and

(iii) the true client (if any) has given explicit or implicit consent to the occupational professional's provision of expertise to said person.

In the aforementioned case, the relevant occupational professional should be considered to have the legal obligation to provide expertise as expected by the person, or otherwise to inform the person that he/she has no intent to do so in a reasonable period of time. This is because society can become safer and fairer through such consideration by occupational professionals, and in addition, requesting occupational professionals to give such consideration is never considered to be an inordinate request to them.

2. The aforementioned ideas are applied to this case. First, the appellant is a judicial scrivener, and a judicial scrivener is an occupational professional relating to registration practice. Therefore, based on the principle stated in the preceding section, it is appropriate to deny that the appellant is held legally liable for the reason that he/she failed to provide expertise to a person other than the client unless there are special circumstance.

Nevertheless, an act which the court of prior instance found as an illegal act committed by the appellant is a failure to provide appropriate expertise to the appellee, and those who have been found to be the appellant's clients are Onlife and Ardepro alone, and the appellee has not been found to be the appellant's client. In light of these facts, the appellant's legal responsibility for the appellee should be denied unless any special circumstance is found, and the judgment in prior instance must be considered to contain a serious error in the interpretation of laws and regulations in that it overlooked this point.

Although the Meeting was held for the purpose of confirming documents that should be used for filing applications for registration in advance, etc., the self-proclaimed A also attended the same meeting. According to the findings of the judgment in prior instance, prior to the Meeting, B said to the appellee's representative that B would arrange a prior opportunity for the buyer and the buyer's judicial scrivener to interview the self-proclaimed A to confirm his/her identity. Collectively taking into account these facts and the fact that the appellant was the only judicial scrivener who attended the Meeting, there is an undeniable possibility that the appellee sincerely expected the appellant, who attended the Meeting, to give advice about the identity of the self-proclaimed A not only to the true client, Ardepro, but also to the appellee by using his/her expertise as a professional in registration practice, and the true client, Ardepro, had also given explicit or implicit consent to it. Therefore, if it can be said that there was a justifiable ground for the appellee to have the aforementioned expectation in light of the roles that the appellee played when Ardepro became the client of the appellant and the personal and economic relationships, etc. between the appellee and Ardepro, etc., it cannot be said that there is no possibility that the appellant's legal responsibility for the appellee would be affirmed.

3. For the reasons mentioned above, I believe that the judgment in prior instance should be quashed and the case should be remanded to the court of prior instance. However, matters that I want the court of prior instance to further examine after the remand are not limited to the points mentioned in the preceding section because even if it is affirmed that the appellant had the legal obligation to give the appellee advice about the identity of the self-proclaimed A based on his/her expertise as a judicial scrivener, whether the appellant violated such obligation seems to be unclear in terms of the case records. In this regard, I would like to mention two facts in order to call the attention of the court of prior instance. That is, the two facts are: (1) in this case, it is recognized that the Registered Seal Certificate turned out to be a forgery owing to an explanation made by the Shibuya Branch of the Tokyo Legal Affairs Bureau, but the case records have not at all clarified the reason for which the forgery of the Registered Seal Certificate was revealed; (2) the Power of Attorney was affixed with a certification by a notary to the effect that A's identity was proven through submission of a registered seal certificate, etc. The fact mentioned in (1) provokes the suspicion that it might be intrinsically difficult for a judicial scrivener to responsibly express his/her view on this issue as an occupational professional in consideration of the fact that information that serves as the decisive factor in determining the authenticity of a registered seal certificate is not available to the general public. The fact mentioned in (2) suggests that the method of forgery used in this case was so tactical that it could deceive a notary who is an occupational professional in determining the identity of a person and giving certification thereto. Furthermore, regarding (1), it is necessary to take care not to use the fact that subsequently became clear, i.e. the fact that the self-proclaimed A was not A, as an "afterthought" when discussing what opinion the appellant should have expressed in the Meeting. As the identity of the self-proclaimed A was unclear as of the time of the Meeting, when the appellant expressed the opinion questioning the identity of the self-proclaimed A, he/she had to be concerned about whether he/she would be able to show the legitimacy of the opinion he/she expressed to Ardepro and the appellee, who might allege that they lost profits due to the suspension of a transaction in the case where Ardepro and the appellee suspended the transaction due to respect for the appellant's opinion and it subsequently became clear that the self-proclaimed A was A. I hope that, after the remand, the court of prior instance will draw an appropriate conclusion after determining what opinion the appellant could actually express in this case in consideration of the aforementioned points.

Justice MIURA Mamoru

Justice KANNO Hiroyuki

Justice KUSANO Koichi

Justice OKAMURA Kazumi