Judgments of the Supreme Court

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2020 (Kyo) 44

Date of the judgment (decision)

2021.10.28

Case Number

2020 (Kyo) 44

Reporter

Minshu Vol. 75, No. 8

Title

Decision concerning the issue of whether a respondent is permitted to file an immediate appeal against a ruling to dismiss without prejudice a petition for a ruling of a disposition regarding the distribution of property

Case name

Case of appeal with permission against the ruling of partial dismissal without prejudice of an appeal against a ruling to dismiss without prejudice a petition for the distribution of property, etc.

Result

Decision of the First Petty Bench, partially quashed and remanded, partially dismissed with prejudice on the merits

Court of the Prior Instance

Hiroshima High Court, Decision of October 29, 2020

Summary of the judgment (decision)

A respondent, who has been a husband or wife, may file an immediate appeal against a ruling to dismiss without prejudice a petition for a ruling of a disposition regarding the distribution of property.

References

Article 156, item (v) of the Domestic Relations Case Procedure Act

Domestic Relations Case Procedure Act
(Immediate Appeals)
Article 156 An immediate appeal may be filed against the rulings set forth in the following items by the persons specified respectively in these items:
(v) a ruling of a disposition regarding the distribution of property, and a ruling to dismiss a petition for such ruling: the person who has been a husband or wife;

Main text of the judgment (decision)

Of the decision in prior instance, paragraph 1 of the main text is quashed.

In relation to the part referred to in the preceding paragraph, this case is remanded to the Hiroshima High Court.

The remaining part of the appeal is dismissed with prejudice on the merits.

The costs of the appeal regarding the preceding paragraph shall be borne by the appellant.

Reasons

1. In this case, the respondent and the appellant, who got divorced, respectively filed petitions for a ruling of a disposition regarding the distribution of property (hereinafter referred to as a "ruling regarding the distribution of property") (hereinafter the case pertaining to the petition filed by the respondent is referred to as the "first case," and the case pertaining to the petition filed by the appellant is referred to as the "second case").

2. According to the case records, the background to this case is as follows.

(1) The respondent and the appellant got married in 2011, but got divorced on August 9, 2017.

(2) On August 7, 2019, the respondent filed a petition for conciliation for a disposition regarding the distribution of property against the appellant.

(3) The aforementioned conciliation case was unsuccessfully closed in November 2019. Therefore, it was deemed that a petition for the first case was filed at the time of filing of the aforementioned petition (Article 272, paragraph (4) of the Domestic Relations Case Procedure Act).

(4) In March 2020, the appellant filed a petition for the second case against the respondent.

(5) The court of first instance rendered a ruling to dismiss without prejudice both the petition for the first case and that for the second case.

(6) The appellant filed an immediate appeal against the aforementioned ruling (hereinafter referred to as the "Immediate Appeal").

3. Concerning the part pertaining to the first case in the reasons for appeal stated by the appellant

(1) The court of prior instance determined as summarized below and dismissed without prejudice the part pertaining to the first case in the Immediate Appeal.

The ruling to dismiss without prejudice the petition for the first case is a ruling that is the most advantageous to the appellant out of the rulings that the appellant could receive in the first case, and the appellant thus cannot be considered to have interest in filing an appeal. Therefore, the appellant cannot file an immediate appeal, and the aforementioned part in the Immediate Appeal is unlawful.

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

Article 156, item (v) of the Domestic Relations Case Procedure Act provides that a person who has been a husband or wife may file an immediate appeal against a ruling regarding the distribution of property and a ruling to dismiss a petition for such ruling. These provisions are considered to have granted to a person who has been a husband or wife the right to file an immediate appeal on the grounds that such person naturally has interest in filing an appeal against a ruling regarding the distribution of property and a ruling to dismiss a petition for such ruling, irrespective of specific circumstances, including the content of the ruling, etc.

Therefore, it is reasonable to consider that the respondent of a petition for a ruling regarding the distribution of property, who has been a husband or wife, may file an immediate appeal against a ruling to dismiss the petition.

The determination of the court of prior instance that dismissed without prejudice the part pertaining to the first case in the Immediate Appeal based on opinions different from those described above contains a violation of laws and regulations that has clearly influenced the judicial decision. The appellant's argument is well-grounded as an argument to this effect, and of the decision in prior instance, paragraph 1 of the main text should inevitably be quashed. In relation to the same part, this case is remanded to the court of prior instance for further examination.

4. Concerning other reasons for appeal

The determination of the court of prior instance that the petition for the second case should be dismissed without prejudice on the grounds of the passage of the period prescribed in the proviso to Article 768, paragraph (2) of the Civil Code is legitimate and can be accepted. The appellant's arguments are not acceptable.

5. Accordingly, the Court unanimously decides as set forth in the main text of the decision.

Presiding Judge

Justice MIYAMA Takuya

Justice YAMAGUCHI Atsushi

Justice YASUNAMI Ryosuke

(This translation is provisional and subject to revision.)