2020.04.07

2019 (Ju) 606

Minshu Vol. 74, No. 3

Judgment concerning whether it is permissible for the obligee, who has petitioned for compulsory execution, to allege that costs under the expense items as set forth in the items of Article 2 of the Act on Costs of Civil Procedure, among the costs incurred thereby for carrying out the compulsory execution, constitute the loss or damage sustained thereby when demanding the obligor subject to the compulsory execution to compensate for loss or damage based on a tort

Case seeking compensation for loss or damage based on a tort

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

Tokyo High Court, Judgment of September 27, 2018

It is impermissible for the obligee, who has petitioned for compulsory execution, to allege that costs under the expense items as set forth in the items of Article 2 of the Act on Costs of Civil Procedure, among the costs incurred thereby for carrying out the compulsory execution, constitute the loss or damage sustained thereby when demanding the obligor subject to the compulsory execution to compensate for loss or damage based on a tort.

(There is a concurring opinion.)

Article 42 of the Civil Execution Act, Article 2 of the Act on Costs of Civil Procedure, Article 709 of the Civil Code

Civil Execution Act
(Burdening of Execution Costs)
Article 42
(1) The costs of compulsory execution that are necessary (hereinafter referred to as "execution costs") shall be borne by the obligor.
(2) In cases of compulsory execution for a claim for payment of money, the execution costs may be collected simultaneously in the course of the execution procedure without requiring a title of obligation.
(3) When a judicial decision revoking a title of obligation (excluding an execution deed) on which compulsory execution is based, or a judgment declaring invalidity of a settlement, acknowledgment, mediation or labor tribunal judgment pertaining to a title of obligation has become final and binding, the obligee shall return, to the obligor, money equivalent to the execution costs that have been paid to the obligee.
(4) The portion of the execution costs to be borne by an obligor pursuant to the provisions of paragraph (1) other than what has been collected pursuant to the provisions of paragraph (2) and the amount of money to be returned by an obligee pursuant to the provisions of the preceding paragraph shall be specified, upon petition, by a court clerk of the execution court.
(5) Against a disposition by a court clerk on the petition set forth in the preceding paragraph, an objection may be filed with the execution court within an unextendable period of one week from the day on which a notice thereof has been received.
(6) The execution court shall, in cases where it finds that a filing of an objection to a disposition by a court clerk under the provisions of paragraph (4) is well-grounded, and it should determine the execution costs and the amount of money to be returned prescribed in said paragraph, determine such amount itself.
(7) An appeal against a disposition of execution may be filed against an order issued with regard to the objection under the provisions of paragraph (5).
(8) A disposition by a court clerk under the provisions of paragraph (4) shall not be effective until it becomes final and binding.
(9) The provisions of Article 74 (1) of the Code of Civil Procedure shall apply mutatis mutandis to a disposition by a court clerk under the provisions of paragraph (4). In this case, the provisions of paragraph (5), paragraph (7), the preceding paragraph and Article 74 (3) shall apply mutatis mutandis.

Act on Costs of Civil Procedure
(Scope and Amount of Costs of Civil Proceedings to Be Borne by the Parties and Other Persons)
Article 2
The scope of the costs of civil proceedings, etc. to be borne by a party, etc. (meaning a party or an interested person in the case; the same applies hereinafter, except under items (iv) and (v)) or by any other person pursuant to the provisions of the Code of Civil Procedure (Act No. 109 of 1996) and other laws and regulations concerning civil proceedings, etc. are to be as listed in the following items, and the amounts of the costs are as specified in the respective items:
(i) the fees under the provisions of the following Article:　the amount of the fees (or the amount of the fees after deducting the amount to be refunded pursuant to the provisions of Article 9, paragraph (3) or paragraph (5), if there is any such amount to be refunded);
(ii) the costs set forth in Article 11, paragraph (1):　the amount of the costs;
(iii) the fees and expenses under the provisions of the Court Execution Officers Act (Act No. 111 of 1966):　the amount of the fees and expenses;
(iv) the travel expenses, daily allowance and accommodation charges to be incurred in order for a party, etc. (meaning a party or an interested person in the case, the person's or its statutory agent or representative, or any other person equivalent thereto; hereinafter the same applies in this item and the following item) to appear on the date for oral argument or hearing or any other date designated by the court (if two or more persons appear as statutory agents in lieu of a person with parental authority, as the representative of a corporation, as any other person equivalent thereto, the lowest amount of travel expenses, daily allowance, and accommodation charges incurred by any one of these persons): the amount of travel expenses, daily allowance and accommodation charges calculated as prescribed in the following:
(a) travel expenses:
1. If the travel does not include any travel between Japan (meaning Japan as prescribed in Article 2, paragraph (1), item (iv) of the Act on Travel Expenses of National Public Employees (Act No. 114 of 1950); the same applies hereinafter) and a foreign state (meaning territories other than the territory of Japan (including international waters); the same applies hereinafter), the amount specified by the Supreme Court as the amount of transportation expenses normally required to travel the distance between the place where the principal building of the summary court that has jurisdiction over the location of the general venue of the party, etc. is located and the place where the principal building of the summary court that has jurisdiction over the place where the party, etc. appears, on the basis of the distance (if these places are the same, the amount specified by the Supreme Court); provided, however, that the amount of transportation expenses actually paid applies when the party, etc. submits documents such as receipts, train tickets, airline boarding pass stubs, and the like, which clearly indicate that the travel used an ordinary route and means and that the amount actually paid exceeds the amount specified by the Supreme Court;
2. If the travel includes any travel between Japan and a foreign state, the amount of transportation expenses actually paid, if the relevant travel used an ordinary route and means (or the amount calculated under the same rule as is applicable to the travel expenses to be paid to a witness, if the relevant travel did not use an ordinary route or means);
(b) Daily allowance:　the amount specified by the Supreme Court according to the number of days actually required to make an appearance and to travel therefor (limited to travel using an ordinary route and means); provided, however, that the amount calculated under the same rule as is applicable to the daily allowance to be paid to a witness applies if the travel did not use an ordinary route or means or when the travel included travel between Japan and a foreign state;
(c) Accommodation charges:　the amount specified by the Supreme Court by classifying the place of stay according to the number of nights that the party, etc. actually stayed to make an appearance and to travel therefor (limited to the travel using an ordinary route and means); provided, however, that the amount calculated under the same rule that is applicable to accommodation charges to be paid to witnesses applies when the travel did not use an ordinary route or means or when the travel included travel between Japan and a foreign state;
(v) The travel expenses, daily allowance, and accommodation charges when an agent (excluding statutory agents and special agents; the same applies throughout this item) appeared on the date prescribed in the preceding item (excluding when the agent appeared on a date for which the party, etc. was not given any order to appear or summons) (if two or more agents appeared, the lowest amount of the travel expenses, daily allowance, and accommodation charges incurred by any one of these persons):　the amount calculated by the same rule as that set forth in the preceding item; provided, however, that the amount may not exceed the amount considered by the court to be a reasonable amount for travel expenses, daily allowance, and accommodation charges in the case of the appearance by the party, etc.;
(vi) The expenses of preparing and submitting documents, such as written petitions including a complaint, briefs, copies of documentary evidence, translated documents, and the like (limited to those documents used as materials for the civil proceedings, etc.):　the amount specified by the Supreme Court, per case, as the amount of expenses normally required to prepare and submit the documents, on the basis of the type of case, the number of the parties, etc., as well as the type and number of documents (in when the records of the case are prepared in an electric or magnetic form, the number of copies prepared by outputting, in the form of hard copies, the content of the information recorded in the relevant electric or magnetic records);
(vii) The expenses required for a government agency, other public body or notary to issue the documents set forth in the preceding item:　the amount calculated by adding the amount specified by the Supreme Court, up to double the minimum rate for a first-class mail matter per issue, to the amount of fees payable to the relevant government agency, etc.;
(viii) The translation fee for a translated document set forth in item (vi):　the amount specified by the Supreme Court per page;
(ix) The expenses incurred to send a document or object (limited to those examined by the court) to the court:　the actual cost of sending the same by an ordinary method;
(x) The compensation and expenses paid to an attorney appointed by a party, etc. if the court orders an attorney to be appointed, or an attorney appointed by the court pursuant to the provisions of the laws and regulations concerning civil proceedings, etc.:　the amount considered to be reasonable by the court;
(xi) The registration and license tax to be paid for registering as commissioned by the court:　the amount of the registration and license tax;
(xii) The expenses required to obtain the issuance of an authenticated copy of a title of obligation, the grant of a certificate of execution for the purpose of filing a petition for compulsory execution or making a demand for liquidating distribution or the delivery of the documents to be served pursuant to the provisions of Article 29 of the Civil Execution Act (Act No. 4 of 1979):　the amount calculated by adding the amount specified by the Supreme Court, up to the total of double the amount of the minimum rate for a first-class mail matter and the rate for registered mail per issuance, grant or delivery, to the amount of fees payable to the court or any other government agency or notary;
(xiii) The expenses required for the service of a document by a notary pursuant to the provisions of Article 57-2 of the Notary Act (Act No. 53 of 1908):　the amount of the fee payable to the notary and the charges required for the service;
(xiv) The expenses required to obtain a document prepared by a government agency, etc. to be submitted to a government agency other than the court or to a notary for the purpose of obtaining the issuance, grant, or delivery set forth in item (xii) or requesting the service set forth in the preceding item:　the expenses calculated using the same rule as that set forth in item (vii);
(xv) The compensation and expenses to be received by an administrator or trustee appointed by the court as provided for by laws and regulations concerning compulsory execution, execution of a provisional seizure, or exercise of a security right (including an auction held under the same rule as that applicable thereto), except for those to be paid by the court:　the amount specified by the court pursuant to the relevant provisions of laws and regulations;
(xvi) The rent for a superficies right or right of lease paid by an obligee effecting a seizure with the permission obtained under Article 56, paragraph (1) of the Civil Execution Act (including when the relevant paragraph is applied mutatis mutandis or when the same rule as that prescribed therein is applied):　the amount of the rent for the superficies right or right of lease;
(xvii) The costs set forth in Article 28-2, paragraph (1):　the amount calculated pursuant to the provisions of the relevant paragraph;
(xviii) the expenses for giving notice when notice is given in writing under the provisions of Article 385 of the Civil Code (Act No. 89 of 1896) (including as applied mutatis mutandis pursuant to the relevant Code and other laws and regulations):　the amount specified by the Supreme Court, up to the total of the amount of the minimum rate for first-class mail matter and the rate for registered mail per notice.

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.

1. With regard to the part of the judgment in prior instance which is against the appellants of final appeal, the part concerning the claims against the appellants to seek joint and several payment of 1,774,568 yen and the amount of money accrued thereon at the rate of 5% per annum for the period from April 23, 2014, until the date of completion of the payment, is quashed.

2. (1) With regard to the part concerning the claims against the appellants to seek joint and several payment of 1,774,568 yen, which is included in the quashed part mentioned in the preceding paragraph, the judgment in first instance is revoked, and all of the claims filed by the appellee of final appeal are dismissed.

(2) With regard to the part concerning the claims against the appellants to seek joint and several payment of the amount of money accrued on 1,774,568 yen at the rate of 5% per annum for the period from April 23, 2014, until the date of completion of the payment, which is included in the quashed part mentioned in paragraph (1), all of the claims filed by the appellee are dismissed.

3. The remaining part of the final appeal filed by the appellants is dismissed.

4. The total court costs are divided into two parts, of which one part shall be borne by the appellants, and the other part shall be borne by the appellee.

Concerning Reason IV for a petition for acceptance of final appeal stated by the counsel for final appeal, ENDO Naoya, et al.

1. With regard to the compulsory execution based on a judgment with a declaration of provisional execution ordering the appellants to vacate part of the building indicated in 3. of the list of articles attached to the judgment in first instance (hereinafter referred to as the "Part of the Building"), the appellee paid a total of 1,613,244 yen as the costs of compulsory execution that are necessary as prescribed in Article 42, paragraph (1) of the Civil Execution Act (hereinafter referred to as the "Execution Costs"). In this case, the appellee alleges that the Execution Costs constitute the loss or damage sustained thereby due to the joint tort caused by the appellants' possession of the Part of the Building, and seeks against the appellants, based on the tort, the joint and several payment of a total of 1,774,568 yen, which is the sum of the abovementioned 1,613,244 yen and the amount equivalent to the legal costs (161,324 yen), and the delay damages accrued thereon.

2. The court of prior instance determined that the appellee's allegation mentioned above is well-grounded, and upheld the appellee's claims to seek joint and several payment.

3. However, the determination of the court of prior instance mentioned above cannot be upheld, for the following reasons.

The Civil Execution Act provides that the costs of compulsory execution that are necessary are borne by the obligor (Article 42, paragraph (1)), and it further provides that the portion of the execution costs other than what has been collected simultaneously in the course of the execution procedure pursuant to the provisions of paragraph (2) of the same Article may be collected through compulsory execution, after the court clerk makes a disposition to determine the amount of such portion (hereinafter referred to as a "disposition to determine the amount of costs") (paragraphs (4) to (8) of the same Article, and Article 22, item (iv)-2). In addition, the scope of costs of compulsory execution referred to in Article 42, paragraph (1) of the same Act is as specified in the form of the expense items set forth in the items of Article 2 of the Act on Costs of Civil Procedure (hereinafter referred to as the "Costs Act"), and the amounts of the costs are as specified in the items of the same Article.

Article 2 of the Costs Act thus prescribes the expense items and amounts of the costs of procedures for civil litigation, including civil execution procedures, that the parties, etc. should bear pursuant to the provisions of laws and regulations, presumably for the purpose of preventing the parties, etc. to the procedures from incurring unexpected costs, while making it possible to easily determine the amount of the costs, by stipulating a standardized and uniform list of expense items that are considered to be generally necessary for the procedures, with the aim of achieving the public interest-oriented objectives of maintaining the appropriate justice system and ensuring the fair and smooth use thereof, in combination with other legal institutions including the Civil Execution Act which makes it possible to collect the costs in simple and prompt means such as a disposition to determine the amount of costs. In that case, it should be said that the costs under the expense items as set forth in the items of Article 2 of the Costs Act, among the costs incurred by the obligee who has petitioned for compulsory execution in the course of carrying out the compulsory execution, are expected to be collected exclusively by way of a disposition to determine the amount of costs, except for such costs collected from the obligor in the course of the execution procedure under Article 42, paragraph (2) of the Civil Execution Act, and the abovementioned purpose would be undermined if the obligee is permitted to allege that those costs constitute the loss or damage sustained thereby when demanding the obligor subject to the compulsory execution to compensate for loss or damage based on a tort.

Consequently, it is reasonable to consider that it is impermissible for the obligee, who has petitioned for compulsory execution, to allege that costs under the expense items as set forth in the items of Article 2 of the Costs Act, among the costs incurred thereby for carrying out the compulsory execution, constitute the loss or damage sustained thereby when demanding the obligor subject to the compulsory execution to compensate for loss or damage based on a tort.

Since the Execution Costs are the costs under the expense items as set forth in the items of Article 2 of the Costs Act, it is impermissible for the appellee to allege that these costs constitute the loss or damage sustained thereby when demanding the appellants to compensate for loss or damage based on a tort. However, the court of prior instance determined that the appellee's allegation is well-grounded. This determination contains a violation of laws and regulations that obviously affects the judgment. The counsel's arguments are well-grounded in this respect.

4. For the reasons stated above, with regard to the part of the judgment in prior instance which is against the appellants, the part concerning the claims against the appellants to seek joint and several payment of a total of 1,774,568 yen, which is the sum of 1,613,244 yen (the Execution Costs) and the amount equivalent to the legal costs incurred when filing these claims (161,324 yen), and the delay damages accrued thereon at the rate of 5% per annum for the period from April 23, 2014, until the date of completion of the payment, should inevitably be quashed. According to the explanation given above, the appellee's claims concerning the abovementioned quashed part is groundless, and therefore: with regard to the part concerning the appellee's claims to seek joint and several payment of 1,774,568 yen, the judgment in first instance should be revoked, and all of the claims filed by the appellee should be dismissed; and with regard to the part concerning the claims against the appellants to seek joint and several payment of delay damages accrued on 1,774,568 yen at the rate of 5% per annum for the period from April 23, 2014, until the date of completion of the payment, which have been additionally filed in the prior instance, all of the claims filed by the appellee should be dismissed.

The final appeal concerning other claims is dismissed as the reasons for a petition for acceptance of final appeal were excluded by an order to accept a final appeal.

Accordingly, the Court unanimously decides as set forth in the main text of the judgment. There is a concurring opinion by Justice UGA Katsuya.

The concurring opinion by Justice UGA Katsuya is as follows.

I agree with the court opinion, but I would like to give additional comments regarding the reasons for the opinion.

Under the procedure to determine the amount of execution costs prescribed in Article 42, paragraph (4) and the following of the Civil Execution Act, a court clerk calculates only the amount of costs prescribed in the items of Article 2 of the Costs Act and renders a disposition that can be used as a title of obligation. Compared with litigation proceedings, this procedure is simple and prompt and it requires no fees for petition.

However, as a general rule, given that a special procedure that is simple and prompt is prescribed by law, if it is intended exclusively for the convenience of private citizens, it may not be possible to deny that private citizens are given an option of choosing between the special procedure or the ordinary procedure. For example, Article 31, paragraph (2) of the Registration and License Tax Act provides that if there is any overpayment of the registration and license tax, the person who has received registration, etc. may notify the registration agency of such overpayment and request the registration agency to give notice to the competent district director of the tax office with regard to the amount of overpaid registration and license tax. 2001 (Gyo-Hi) No. 25, the judgment of the First Petty Bench of the Supreme Court of April 14, 2005, Minshu Vol. 59, No. 3, at 491, held that Article 31, paragraph (2) of the Registration and License Tax Act prior to the amendment by Act No. 152 of 2002, which provided to the same effect as above, was intended to enable the person who received registration, etc. to receive a refund of the overpaid tax in a simple and prompt manner by using the abovementioned procedure of giving notice, which is to be conducted sua sponte, and that this paragraph cannot be interpreted as stipulating the exclusive nature of the procedure prescribed therein, or meaning that a refund of registration and license tax cannot be requested by any means other than this procedure. Therefore, in order to recognize the exclusive nature of a special procedure that is simple and prompt, it is necessary to examine whether the special procedure is not only intended to provide convenience for the users of the procedure but also is designed as an exclusive procedure based on the recognition of the public nature of the use thereof.

Article 2 of the Costs Act, in combination with legal institutions such as the procedure to determine the amount of execution costs prescribed in Article 42, paragraph (4) and the following of the Civil Execution Act, and the procedure to fix the amount of court costs prescribed in Article 71 of the Code of Civil Procedure, is intended to have both parties to the litigation proceedings, etc. equitably bear the costs incurred for performing such types of acts that are deemed to be generally necessary for the proceedings, instead of stipulating that a reimbursement may be requested with regard to any and all costs arising from the proceedings, with the aim of enabling the parties to use the litigation system, etc. without hesitation and carry out appropriate litigation activities, etc. Thus, this can be deemed to form a part of the foundation for the justice system from the standpoint of making the right of access to court effective, and it can be recognized as serving for public interest, and therefore, it may be justified to recognize the exclusive nature of the procedure.

Justice MIYAZAKI Yuko

Justice TOKURA Saburo

Justice HAYASHI Keiichi

Justice UGA Katsuya

Justice HAYASHI Michiharu