2024.10.23

2024 (Kyo) 1

Minshu Vol. 78, No. 5

(Civil Case)Decision concerning whether judicial enforcement may be carried out against the right to receive payment of the pension under the Cultural Merit Pension Act

Case of appeal with permission against the ruling of the court of appeal pertaining to provisional remedy to revoke a ruling to grant an order for provisional seizure

Decision of the Third Petty Bench, quashed and remanded

Osaka High Court, Decision of November 24, 2023

Judicial enforcement may be carried out against the right to receive payment of the pension under the Cultural Merit Pension Act.

Article 1 and Article 3, paragraphs (1) and (2) of the Cultural Merit Pension Act; Articles 143 and 152 of the Civil Enforcement Act

The decision in prior instance is quashed.

The case is remanded to the Osaka High Court.

Concerning the reasons for appeal stated by the counsel for appeal, TOYODA Yukihiro

1. In this case, the appellant filed a petition for an order for provisional seizure against the respondent (the obligor), who is a person of cultural merit under the Cultural Merit Penson Act, with regard to the respondent's right against the State (the third party obligor) to receive payment of the pension under the same Act (hereinafter referred to as the "Pension") (this petition is hereinafter referred to as the "Petition").

2. The court of prior instance determined that since the purpose of the system of the Pension would not be achieved unless a person of cultural merit actually personally receives the Pension, it is appropriate to construe that the right to receive payment of the Pension is, in nature, not subject to judicial enforcement, and therefore that judicial enforcement may not be carried out against that right. In conclusion, the court of prior instance dismissed the Petition, which was filed to seek provisional seizure on that right, as being groundless.

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

The Cultural Merit Pension Act provides that: the purpose of the same Act is to provide the Pension to a person who has rendered particularly distinguished service related to the advancement and development of culture (person of cultural merit), thereby commending that person (Article 1); the Pension is to be paid to a person of cultural merit as a lifetime pension (Article 3, paragraph (1)); and the amount of the Pension must be set as an amount appropriate for commending a person of cultural merit, in light of the person's service related to the advancement and development of culture and in consideration of socioeconomic and other circumstances (paragraph (2) of the same Article). In the same Act or any other laws and regulations, there is no such provision that stipulates that judicial enforcement may not be carried out against the right to receive payment of the Pension. Meanwhile, according to the abovementioned provisions of the Cultural Merit Pension Act, it is understood that the Pension is to be paid for the purpose of making public the service, etc. of a person of cultural merit and commending that person. Then, it can be said that the abovementioned purpose of commendation can be achieved when the State selects a person who has rendered particularly distinguished service related to the advancement and development of culture as a person of cultural merit and thereby grants that person the right to receive payment of the Pension, and it cannot be said that the abovementioned purpose cannot be achieved unless that person actually receives the Pension. Consequently, it cannot be construed that the right to receive payment of the Pension is, in nature, not subject to judicial enforcement.

According to the above, it should be said that judicial enforcement may be carried out against the right to receive payment of the Pension.

4. The court of prior instance determined that the Petition should be dismissed based on the view contrary to the above, and such determination contains a violation of law or regulation that has clearly influenced the judgment. The counsel's arguments are well-grounded, and the decision in prior instance should inevitably be quashed. The case is remanded to the court of prior instance for further examination.

For the reasons stated above, the Court unanimously decides as set forth in the main text of the decision.

Justice HAYASHI Michiharu

Justice UGA Katsuya

Justice WATANABE Eriko

Justice ISHIKANE Kimihiro