2022.06.20

2021 (Kyo) 13

Minshu Vol. 76, No. 5

Decision concerning the case in which the court determined that the inventory of property and the report on the status of property submitted to the family court by the administrator of property: who was appointed in a case seeking a provisional order filed by designating an adjudication case for commencement of curatorship as a case on the merits, do not fall within the scope of records of the abovementioned case seeking a provisional order.

Case of appeal with permission against the ruling to dismiss with prejudice on the merits an appeal against the ruling to dismiss without prejudice an appeal against the ruling to dismiss without prejudice a petition for inspection and copying

Decision of the First Petty Bench, dismissed

Tokyo High Court, Decision of June 23, 2021

The inventory of property and the report on the status of property that the administrator of property, who was appointed in a case seeking a provisional order filed by designating an adjudication case for commencement of curatorship as the case on the merits, has submitted to the family court with regard to the property that the administrator is to administer do not fall within the scope of records of the abovementioned case seeking a provisional order.

Article 47, paragraphs (3) and (8), Article 125, paragraph (2), Article 126, paragraph (1), and Article 134, paragraphs (1), (2) and (6) of the Domestic Relations Case Procedure Act; Article 27, paragraph (1) of the Civil Code

Domestic Relations Case Procedure Act
(Inspection of Records, etc.)
Article 47(3)　Where a petition for permission under the provisions of preceding two paragraphs is filed by a party, the family court must grant permission.
(8)　An immediate appeal may be filed against a judicial decision to dismiss the petition set forth in paragraph (3).

(Replacement of Administrators, etc.)
Article 125(2)　A family court may order an administrator whom it has appointed in an adjudication case for a disposition regarding the administration of property offered to an adult ward by a third party (including an administrator appointed as a replacement pursuant to the provision of preceding paragraph; hereinafter referred to as an "Administrator of Property" in this Article) to report on the status of the property and settle the account for administration.

(Provisional Order during a Case on the Merits to Adjudicate Commencement of Guardianship)
Article 126(1)　Where a petition for the commencement of guardianship is filed, and when it is necessary for daily life, medical treatment and nursing care or administration of the property of a person who is to be an adult ward, the family court (or a high court in the case set forth in Article 105, paragraph (2); hereinafter the same shall apply in this Article and the following Article) may, upon petition or by its own authority, appoint an administrator of property or give instructions to a party concerned with the case with regard to the particulars regarding daily life, medical treatment and nursing care or administration of the property of the person who is to be an adult ward, while not requiring the provision of security, until a ruling on the petition for the commencement of guardianship becomes effective.

(Provisional Order during a Case on the Merits to Adjudicate Commencement of Curatorship)
Article 134(1)　The provision of Article 126, paragraph (1) shall apply mutatis mutandis to a provisional order sought by designating an adjudication case for the commencement of curatorship as a case on the merits.
(2)　Where a petition for the commencement of curatorship is filed, and when it is particularly necessary for the preservation of the property of a person who is to be a person under curatorship, the family court (or a high court in the case set forth in Article 105, paragraph (2)) may, upon the petition of the person who has filed said petition, order that the person who is to be a person under curatorship be subject to the curatorship of the administrator of property to be appointed pursuant to the provision of Article 126, paragraph (1) as applied mutatis mutandis pursuant to the preceding paragraph (hereinafter simply referred to as an "Administrator of Property" in this Article) in performing acts in relation to property (limited to the acts prescribed in Article 13, paragraph (1) of the Civil Code; the same shall apply in paragraph (5)), until a ruling on the petition for the commencement of curatorship becomes effective.
(6)　The provisions of Article 125, paragraphs (1) through (6), as well as the provisions of Articles 27 through 29 of the Civil Code (excluding Article 27, paragraph (2) of said Code) shall apply mutatis mutandis to an Administrator of Property. In this case, the term "an adult ward" in Article 125, paragraph (3) shall be deemed to be replaced with "a person who is to be a person under curatorship."

Civil Code
(Duties of Administrators)
Article 27(1)　An administrator appointed by the family court pursuant to the provisions of the preceding two Articles must prepare a list of the property that the administrator is to administer. In such a case, the expenses incurred are paid from the property of the absentee.

The appeal is dismissed.

The costs of the appeal shall be borne by the appellant.

Concerning the reasons for appeal stated by the counsel for appeal, YOKOI Kaita

1. In this case, the appellant: who filed a petition for a provisional order on matters including the appointment of an administrator of property while designating the adjudication case for the commencement of curatorship as a case on the merits, filed a petition for permission for copying of the documents submitted to the family court by the administrator of property appointed in the abovementioned case seeking a provisional order.

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

(1) In October 2020, the appellant filed with the Chiba Family Court a petition for a ruling for commencement of guardianship regarding his/her natural mother. In November 2020, the appellant amended the object of the petition to be the commencement of curatorship, and filed a petition for a provisional order prior to a ruling to request, inter alia, that the administrator of property be appointed until a ruling on the petition for commencement of curatorship took effect.

In November 2020, the Chiba Family Court made a ruling to appoint Attorney A (hereinafter referred to as the "Administrator") as the administrator of property until a ruling on the petition for commencement of curatorship took effect, and to order that the acts in relation to property prescribed in Article 13, paragraph (1) of the Civil Code, which are to be performed by the abovementioned natural mother should be subject to curatorship by the Administrator. This ruling took effect in December 2020.

(2) After that, the Administrator submitted to the abovementioned court the inventory of the property that the Administrator was to administer and the report on the status of said property.

(3) In March 2021, the appellant filed with the abovementioned court a petition for permission for copying of all the documents submitted by the Administrator (hereinafter referred to as the "Petition"). As the Petition was dismissed without prejudice, the appellant filed an immediate appeal.

(4) The abovementioned court dismissed the immediate appeal without prejudice, holding as follows: the appellant is not a party in relation to a petition for permission, and since no immediate appeal may be filed against a judicial decision that dismissed without prejudice a petition for permission for copying of records filed by a third party, the abovementioned immediate appeal filed by the appellant is unlawful and it is obvious that such deficiency cannot be corrected.

Dissatisfied with this, the appellant filed an immediate appeal, which was dismissed with prejudice on the merits by the court of prior instance.

3. The counsel argues as follows. The documents submitted to the family court by the administrator of property, who is appointed in a case seeking a provisional order for which an adjudication case for commencement of curatorship is designated as a case on the merits, fall within the scope of records of the case seeking the provisional order. Therefore, the petitioner of the provisional order is eligible to file a petition for permission for copying, etc. of these documents as a party in relation to the petition and to lawfully file an immediate appeal against a judicial decision that dismissed the petition without prejudice. Nevertheless, the court of prior instance regarded the Petition as a petition filed by a third party and determined that the immediate appeal filed by the appellant against the judicial decision that dismissed that petition was unlawful. In determining as such, the court of prior instance erred in the interpretation and application of Article 47, paragraphs (3) and (8) of the Domestic Relations Case Procedure Act (hereinafter referred to as the "Act").

4. The appointment of the administrator of property and the provisional order to order curatorship during a case on the merits to adjudicate commencement of curatorship (Article 134, paragraphs (1) and (2) and Article 126, paragraph (1) of the Act) are considered to be intended to form a provisional legal relationship by taking such measures as appointing the administrator of property until a ruling on a petition for commencement of curatorship takes effect, with the aim of ensuring the protection of the person who is to be a person under curatorship. In that case, after a ruling to issue the abovementioned provisional order takes effect, the protection of the person who is to be a person under curatorship will be ensured through such means as the administration of property and the exercise of the authority of representation by the administrator of property until a ruling on a petition for commencement of curatorship takes effect (Article 134, paragraphs (5) and (6) of the Act; Article 28 of the Civil Code). Therefore, the abovementioned case seeking a provisional order should be considered to be closed when a ruling to issue a provisional order on matters including the appointment of the administrator of property becomes final and binding.

The administrator of property appointed in the abovementioned case seeking a provisional order must prepare an inventory of property that the administrator is to administer and submit it to the family court (Article 134, paragraph (6) of the Act; Article 27, paragraph (1) of the Civil Code; and Article 85 and Article 82, paragraph (1) of the Rules of Domestic Relations Case Procedure), and the administrator also submits a report on the status of property as ordered by the family court (Article 134, paragraph (6) and Article 125, paragraph (2) of the Act). These documents are required to be submitted for the purpose of ensuring that the affairs concerning administration of property are carried out properly after the administrator of property is appointed, and hence, they cannot serve as common materials available to the court and the party to the abovementioned case of seeking a provisional order.

According to the above, the inventory of property and the report on the status of property that the administrator of property, who was appointed in a case seeking a provisional order filed by designating an adjudication case for commencement of curatorship as a case on the merits, has submitted to the family court with regard to the property that the administrator is to administer, do not fall within the scope of records of the abovementioned case seeking a provisional order.

Based on the facts mentioned above, the documents subject to the Petition do not fall within the scope of records of the case seeking a provisional order prior to a ruling to which the appellant is a party, but rather they were submitted as materials in the separate procedure to which the appellant is not a party. Hence, the Petition is a petition filed by a third party, and the immediate appeal filed by the appellant against the judicial decision that dismissed the Petition without prejudice is unlawful. The determination by the court of prior instance on the point argued by the counsel is justifiable and can be upheld. The counsel's argument cannot be accepted.

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

Justice YAMAGUCHI Atsushi

Justice MIYAMA Takuya

Justice YASUNAMI Ryosuke

Justice OKA Masaaki

Justice SAKAI Toru