2022.01.28

2020 (Ju) 1765

Minshu Vol. 76, No. 1

Judgment concerning when one party to a marriage who assumes an obligation to compensate for damage as a solatium for divorce becomes liable for the delay in performance of the obligation

Principal action seeking a divorce, etc. and counterclaim seeking the same

Judgment of the Second Petty Bench, partially quashed and decided by the Supreme Court, partially dismissed with prejudice on the merits, and partially dismissed without prejudice

Osaka High Court, Judgment of September 3, 2020

One party to a marriage who assumes an obligation to compensate for damage as a solatium for divorce becomes liable for the delay in performance of the obligation as of the time the divorce is established.

Articles 412, 709, and 710 of the Civil Code

Civil Code

(Time of Performance and Delay in Performance)

Article 412 (1) If a fixed due date is assigned to the performance of an obligation, the obligor is liable for delay from the time that due date arrives.

(2) If an uncertain due date is assigned to the performance of an obligation, the obligor is liable for delay from the time when the obligor receives the request for performance after the due date arrives or the time when the obligor becomes aware of the arrival of that due date, whichever comes earlier.

(3) If no time limit is assigned to the performance of an obligation, the obligor is liable for delay from the time the obligor receives the request for performance.

(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.

(Compensation for Loss or Damage Other than of Property)

Article 710 A person liable for compensation for loss or damage pursuant to the provisions of the preceding Article must also compensate for loss or damage other than of property, regardless of whether that person infringed the body, liberty or reputation of another person, or infringed property rights of another person.

1. Out of paragraph 1(2) of the main text of the judgment in prior instance, the part upholding the claim for payment of delay damages accrued on 200,000 yen at the rate of 5% per annum for the period from the day following the day on which this judgement becomes final and binding to the completion of the payment is modified as follows.

The appellant of final appeal shall pay to the appellee of final appeal the amount of money accrued on 200,000 yen at the rate of 3% per annum for the period from the day following the day on which this judgement becomes final and binding to the completion of the payment.

The other claims of the appellee are dismissed with prejudice on the merits.

2. The final appeal for the part of the judgment in prior instance which pertains to the sharing of the cost for the custody of the children is dismissed without prejudice.

3. The other part of the final appeal filed by the appellant is dismissed with prejudice on the merits.

4. The court costs are divided into five parts, of which four parts shall be borne by the appellant and the rest shall be borne by the appellee.

Concerning the reasons for final appeal stated by the defense counsel, OKAMOTO Daisuke (except for the reasons excluded)

1. The appellant and the appellee were a couple who filed a notification for marriage in November 2004, and had lived together thereafter and had two children, but separated in March 2017. In this case, the appellant files a principal action against the appellee to seek a divorce and other claims, in response, the appellee files a counterclaim against the appellant to seek a divorce and also seek a solatium for the divorce based on tort and payment of delay damages accrued thereon at the rate of 5% per annum for the period from the day following the day on which the judgement becomes final and binding to the completion of the payment.

2. Among the appellee's claims, the court of prior instance upheld the claim for a divorce and also upheld the claim for a solatium up to 1,200,000 yen, and made a determination as summarized below and upheld the claim for payment of delay damages accrued on the 1,200,000 yen at the rate of 5% per annum for the period from the day following the day on which the judgment becomes final and binding to the completion of the payment.

The appellee's claim for a solatium is premised on the appellant's responsibility for having broken their marital relationship. It is found that their marital relationship was broken prior to April 1, 2020, the day on which Act No. 44 of 2017 (hereinafter referred to as the "Amendment Act") came into effect. Accordingly, it is reasonable to consider that the rate for delay damages for the obligation to compensate for damage to be borne by the appellant as a solatium as mentioned above is 5% per annum as specified by the Civil Code prior to the amendment by the Amendment Act.

3. However, the aforementioned determination by the court of prior instance cannot be accepted for the following reasons.

(1) A claim for a solatium for divorce is made by one party to a marriage against the other party to seek compensation for damage on the grounds that the former party has been forced to become divorced due to an act for which the other party is held liable and for which the former party has suffered mental distress. Such damage can be evaluated only when the divorce is established. Therefore, a claim for compensation for such damage should be construed to arise upon the establishment of the divorce. The obligor who assumes an obligation to compensate for damage in tort becomes liable for the delay in performance of the obligation as of the time of the occurrence of the damage, without the obligee's demand for performance (see 1959 (O) No. 117, the judgement of the Third Petty Bench of the Supreme Court of September 4, 1962, Minshu Vol. 16, No. 9, at 1834). Accordingly, it is reasonable to consider that one party to a marriage who assumes an obligation to compensate for damage as a solatium for divorce becomes liable for the delay in performance of the obligation as of the time the divorce is established.

(2) Given the above, the appellant who assumes an obligation to compensate for damage as a solatium for divorce should be considered to become liable for the delay in performance of the obligation as of the time this judgement becomes final and binding, or the time of the establishment of the divorce. Consequently, it cannot be said that the appellant had become liable for the delay in performance before the day on which the Amendment Act came into effect (see Article 17, paragraph (3) of the Supplementary Provisions of the Amendment Act), and the rate for delay damages for the aforementioned obligation is 3% per annum as specified in Article 404, paragraph (2) of the Civil Code after the amendment by the Amendment Act.

Incidentally, the appellee's claim for a solatium is not based on individual illegal acts of the appellant which led to breaking the marital relationship between the appellee and the appellant. It should be said that there is no room to raise an issue of a solatium due to the breakup of the marital relationship itself separately from a solatium for the divorce, and the appellee's claim for a solatium should be understood as a claim for a solatium for the divorce.

4. The determination of the court of prior instance that differs from the above contains violation of laws and regulations that obviously affects the judgment, and the counsel's arguments to that effect are well-grounded. According to the explanations above, out of the appellee's incidental claim, the part seeking delay damages on 200,000 yen, which is within the scope of the appeal, should be upheld to the extent of seeking the payment of delay damages at the rate of 3% per annum for the period from the day following the day on which this judgement becomes final and binding to the completion of the payment. Therefore, out of the judgment in prior instance, the part upholding the aforementioned part of the incidental claim is modified as shown in paragraph 1 of the main text of this judgment, and the final appeal concerning the sharing of the cost for the custody of the children is dismissed without prejudice as the reasons for a petition for acceptance of final appeal are not stated in the petition for acceptance of final appeal or the statement of reasons for a petition for acceptance of final appeal. The other part of the final appeal is dismissed with prejudice on the merits 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.

Justice KANNO Hiroyuki

Justice MIURA Mamoru

Justice KUSANO Koichi

Justice OKAMURA Kazumi