2023.10.06

2023 (Kyo) 9

Minshu Vol. 77, No. 7

(Civil Case)Decision concerning whether the necessity of preservation exists in the case where an obligee, who has the right to claim the registration of transfer of ownership with respect to a portion of a parcel of land, files a petition for an order of provisional disposition prohibiting the disposal of the entirety of that land with the above right to claim the registration as the right to be preserved

Case of an appeal with permission against the decision to dismiss an appeal against the decision to dismiss without prejudice a petition for an order of provisional disposition

Decision of the Third Petty Bench, quashed and remanded

Osaka High Court, Decision of January 18, 2023

In special circumstances, such as where an obligee, who has the right to claim the registration of transfer of ownership with respect to a portion of a parcel of land, is unable to apply for, or it is extremely difficult for the obligee to apply for, the registration of a subdivision of that portion, an order of provisional disposition prohibiting the disposal of the entirety of that land does not immediately lack the necessity of preservation.

Article 23, paragraph (1) and Article 53, paragraph (1) of the Civil Provisional Remedies Act

The decision in prior instance is quashed.
This case is remanded to the X High Court.

Concerning the reasons for the appeal stated by the counsel for the appeal, A
1. In this case, the appellant filed a petition for an order of provisional disposition prohibiting the opposite parties, who are the registered holders of ownership of the lands, which are all one parcel of land, listed in the Property List 1 attached to the decision in the first instance (hereinafter referred to as the "Lands"), from disposing the entirety of the Lands (hereinafter referred to as the "Petition"), asserting that the appellant had acquired the ownership, by prescription, of a portion of each of the Lands and that the right to claim the registration of transfer of ownership with respect to such portions of the Lands (hereinafter referred to as the "Right to Claim the Registration") is the right to be preserved.
2. The court of prior instance ruled that the Petition should be dismissed without prejudice in its entirety, based on the following:
An obligee, who has the right to claim the registration of transfer of ownership with respect to a portion of a parcel of land, can, upon obtaining a provisional disposition order prohibiting the disposal of that portion of land, apply for the registration of a subdivision of the parcel by subrogating the obligor, and as a result of the registration of prohibition of disposal being made with respect to that portion which is registered as a parcel of land through the subdivision, the obligee can preserve his/her right to claim the registration as above. Accordingly, an order of provisional disposition prohibiting the disposal of the entirety of the relevant land, with the above right to claim the registration as the right to be preserved, cannot be said to have the necessity of preservation.
3. However, the aforementioned determination of the court of prior instance cannot be upheld. Reasons therefor are as follows:
In order to preserve the right to claim the registration of transfer of ownership with respect to a portion of a parcel of land, it is sufficient to execute a provisional disposition by making a registration of prohibition of disposal of that portion, and therefore, it is understood that an order of provisional disposition prohibiting the disposal with respect to the entirety of the relevant land with the above right to claim the registration as the right to be preserved is in principle lacking the necessity of preservation with respect to the land other than the above potion.
However, in order to make the registration of prohibition of disposal of the above-mentioned portion, it is necessary to make a registration of a subdivision for the relevant portion as a prerequisite. Whether the obligee, who has the above right to claim the registration, can apply for the registration of the subdivision depends on whether there are objective circumstances that hinder the obligee from providing the information as necessary matters for the application in accordance with the provisions of the laws and regulations concerning real estate registration without lacking the secrecy and promptness in the civil preservation procedure. Then, it should not be denied that there may be cases where the obligee is unable to make such application, or it is extremely difficult for the obligee to do so. In such a case, the above obligee will not be able to preserve the above right to claim the registration even if the obligee obtains an order of provisional disposition prohibiting the disposal of such portion of the land, and therefore, in order to preserve the above right to claim the registration, the obligee has no choice but to file a petition for an order of provisional disposition prohibiting the disposal of the entirety of the above land. If the order of provisional disposition is issued based on the above petition, the obligor will be also restricted from exercising his/her rights to the above land other than the portion mentioned above, but by considering the content and degree of such disadvantage separately in the decision on the petition, it is understood that if there are no circumstances sufficient for the obligor to be found not to be excessively restricted from exercising such rights, the petition should be dismissed without prejudice.
According to the above, in the case where the above obligee files a petition for an order of provisional disposition prohibiting the disposal of the entirety of the above land with the above right to claim the registration as the right to be preserved, if special circumstances are found such that the obligee is unable to apply for a registration of the above subdivision, or it is extremely difficult for the obligee to do so, it is reasonable to conclude that the order of provisional disposition does not immediately lack the necessity of preservation simply because the order is for the entirety of the above land.
4. The determination of the court of prior instance was based on a different view from the above, and although the report of the counsel for the appeal containing the registrar's response regarding the registration of the subdivision of the Lands had been submitted, the court of prior instance, without considering whether there were objective circumstances that hindered the appellant from providing the information as necessary matters for the application for the registration of the subdivision, such as a land survey map, by requesting a prima facie showing through materials supporting such response, and without conducting sufficient examination into whether the above special circumstances were found, concluded that the Petition should be dismissed without prejudice on the grounds that there is no necessity of preservation. Accordingly, there is a violation of law or regulation in such determination of the court of prior instance that has clearly influenced the judicial decision. The counsel's arguments are well grounded as arguments to this effect, and the decision in prior instance should inevitably be quashed. Therefore, the case shall be remanded to the court of prior instance for further examination as to whether the above special circumstances exist, the existence and content of the Right to Claim the Registration, and the content and extent of the disadvantages to the opposite parties.
Accordingly, the Court unanimously decides as set forth in the main text of the decision.

Justice WATANABE Eriko
Justice UGA Katsuya
Justice HAYASHI Michiharu
Justice NAGAMINE Yasumasa
Justice IMASAKI Yukihiko