2022.10.06

2021 (Kyo) 16

Minshu Vol. 76, No. 6

Judgment concerning whether it is permitted to use absence or extinguishment of a claim receivable as a reason for filing the appeal against a disposition of execution against an order of implementation of property disclosure procedure that was issued on the grounds of presence of a circumstance that falls under Article 197, paragraph (1) of the Civil Execution Act

Case of appeal with permission against the ruling of the court of appeal against execution to revoke an order of implementation of property disclosure procedure

Judgment of the First Petty Bench, quashed and remanded

Tokyo High Court, Decision of September 29, 2021

In an appeal against a disposition of execution filed against an order of implementation of property disclosure procedure that was issued on the grounds of presence of a circumstance that falls under Article 197, paragraph (1), item (ii) of the Civil Execution Act, absence or extinguishment of a claim receivable that is a monetary claim indicated on an authenticated copy of a title of obligation cannot be used as a ground for filing the appeal against a disposition of execution.

Article 197, paragraph (1), item (ii) and Article 197, paragraph (5) of the Civil Execution Act

Civil Execution Act

(Order of Implementation)
Article 197 (1) An execution court shall, when either of the following items applies, order implementation of a property disclosure procedure against an obligor, upon petition by an obligee of a monetary claim who has an enforceable authenticated copy of a title of obligation (excluding that of which the title of obligation is the one set forth in Article 22 (ii), (iii)-2, (iv) or (v) or a demand for payment that has the same effect as a final and binding judgment); provided, however, that this shall not apply when it is not possible to commence compulsory execution based on said enforceable authenticated copy of a title of obligation:
(ii) When a prima facie showing was made that the petitioner is unable to obtain full performance of said monetary claim even by implementing compulsory execution against known property

(5) An appeal against a disposition of execution may be filed against a judicial decision on the petition set forth in paragraph (1) or paragraph (2).

The decision in prior instance is quashed.

This case is remanded to the Tokyo High Court.

Concerning the reasons for appeal against a ruling stated by counsel for appeal against a ruling, NOBETOKI Junichi

1. In this case, the appellant, who is the obligee of a monetary claim having an authenticated copy of a notarial deed of a contract on child support payment, etc. (hereinafter referred to as the "Execution Deed") that is an enforceable title of obligation, filed a petition for implementation of property disclosure procedure (hereinafter referred to as the "Petition") against the other party, who is the obligor, under Article 197, paragraph (1), item (ii) of the Civil Execution Act (hereinafter referred to as the "Act").

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

(1) In December 2016, the appellant and the other party were divorced, while concluding an agreement about expenses for custody of their child in which the other party has the duty of the payment, by means of the Execution Deed.

(2) In February 2021, the appellant received the grant of a certificate of execution in relation to the Execution Deed, and transcripts of the Execution Deed and the certificate of execution were served to the other party.

(3) In June 2021, the appellant filed the Petition while designating monetary claims with provisions on fixed due dates pertaining to expenses for custody of the child indicated on the Execution Deed as claims receivable.

(4) In July 2021, the court of first instance ruled that the Petition is well-grounded and issued an order of implementation of property disclosure procedure in relation to the other party (the decision in first instance).

(5) After that, the other party filed an appeal against a disposition of execution against the decision in first instance and provided the appellant with performance of the portion of the aforementioned claims receivable for which the fixed due date had arrived (hereinafter referred to as the "Claims").

3. The court of prior instance determined as summarized below and ruled that the Claims were extinguished by means of the performance. The court of prior instance thus revoked the decision in first instance and dismissed without prejudice the Petition.

If a claim receivable that is a monetary claim indicated on an authenticated copy of a title of obligation (hereinafter merely referred to as a "claim receivable") is extinguished by means of performance, it can no longer be said that there is a circumstance that falls under Article 197, paragraph (1), item (ii) of the Act. Therefore, there is no ground for considering that the fact of performance of the claim receivable cannot be taken into account in determining the presence or absence of a circumstance that falls under Article 197, paragraph (1), item (ii) of the Act. In addition, Article 203 of the Act, which applies mutatis mutandis the provisions on compulsory execution and exercise of a security interest to property disclosure procedure, does not apply mutatis mutandis the provisions of Article 35 of the Act that provides for actions to oppose execution. Therefore, Article 203 of the Act is not considered to intend to prohibit an obligor from alleging absence or extinguishment of a claim receivable in an appeal against a disposition of execution against an order of implementation of property disclosure procedure that was issued on the grounds of presence of a circumstance as mentioned above. Consequently, it should be considered that in the aforementioned appeal against a disposition of execution, absence or extinguishment of a claim receivable can be used as a reason for filing the appeal against a disposition of execution.

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

The Act sets the system of action to oppose execution as a procedure for seeking denial of permission of compulsory execution based on a substantial ground. The presence or absence of a claim receivable should be determined through an action to oppose execution, and the execution court is not expected to take into account the presence or absence of a claim receivable in compulsory execution procedure. This should also be considered to be the same in property disclosure procedure that is implemented as a preparation for compulsory execution. Therefore, if a petition for implementation of property disclosure procedure is filed by an obligee of a monetary claim having an enforceable authenticated copy of a title of obligation on the grounds of presence of a circumstance that falls under Article 197, paragraph (1), item (ii) of the Act, the execution court should make a determination concerning the presence or absence of the circumstance while deeming that the claim receivable exists, without considering the presence or absence of the claim receivable. Then, an obligor can seek stay or rescission of property disclosure procedure by alleging absence or extinguishment of the relevant claim receivable and submitting a document set forth in Article 39, paragraph (1), items (i), (vii), etc. of the Act to the execution court in an action to oppose execution or a procedure relating to a judicial decision to stay execution pertaining to an action to oppose execution (Article 39, paragraph (1) and Article 40, paragraph (1) of the Act as applied mutatis mutandis pursuant to Article 203 of the Act). The fact that Article 203 of the Act does not apply mutatis mutandis Article 35 of the Act does not serve as a basis for an obligor's allegation of absence or extinguishment of a claim receivable in an appeal against a disposition of execution against an order of implementation of property disclosure procedure that was issued on the grounds of presence of the aforementioned circumstance.

Therefore, it is reasonable to consider that in an appeal against a disposition of execution against an order of implementation of property disclosure procedure that was issued on the grounds of presence of a circumstance that falls under Article 197, paragraph (1), item (ii) of the Act, absence or extinguishment of a claim receivable cannot be used as a reason for filing the appeal against a disposition of execution.

5. The determination of the court of prior instance that dismissed without prejudice the Petition based on opinions different from those described above contains a violation of laws and regulations that has clearly influenced the judicial decision. The counsel's arguments are well-grounded, and the decision in prior instance should inevitably be quashed. This case is remanded to the court of prior instance for further examination.

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

Justice YASUNAMI Ryosuke

Justice YAMAGUCHI Atsushi

Justice MIYAMA Takuya

Justice OKA Masaaki

Justice SAKAI Toru