2000.03.10

1999 (Kyo) 20

Minshu Vol.54, No.3, at 1073

Decision upon the case concerning (1) Whether it is permissible regarding a decision which dismissed the request for an order to submit a document on the ground that there is no necessity for the examination of this document to appeal on the ground that there is such a necessity; (2) the meaning of the term 'technical or professional secret' as provided by Article 197, paragraph 1, subparagraph 3 of the Law of Civil Procedure

Kokoku Appeal with Permission against a Decision to Dismiss a Request for Documents Submission Order

Decision of the First Petty Bench, partly quashed and reversed, partly dismissed

Osaka High Court, Decision of March 26, 1999

1. Regarding a decision which dismissed the request for an order to submit a document on the ground that there is no necessity for the examination of this document, it is not permissible to appeal separately on the ground that there is a such a necessity.
2. The term 'technical or professional secret' as provided by Art.197, para.1, subpara.3 of the Code of Civil Procedure should be understood as matters, which if made public, their social value of which would decline and the activities using these will be difficult, or will seriously affect the profession and make it difficult to continue the profession.

Article 197, paragraph 1, subparagraph 3 of the Law of Civil Procedure, Article 220, subparagraph 4 Ro of the Law of Civil Procedure, Article 221 of the Law of Civil Procedure, Article 223, paragraph 4 of the Law of Civil Procedure

The part on the plans for the circuit and the flow of the signals of the telephone equipment in the decision of the original instance court shall be quashed.
The above part shall be remanded to the Osaka High Court.
The cost of appeal concerning the above shall be borne by the kokoku appellants.

On Item 1 of the grounds of appeal by the representatives for kokoku appeal, SI, KM, NO and YM:

[Summary 1] Regarding a decision which dismissed the request for an order to submit a document on the ground that there is no necessity for the examination of this document, it is not permissible to appeal separately on the ground that there is a such a necessity. The arguments cannot be accepted.

On Item 2 of the same:

I. According to the records, the facts concerning the document referred to in item 1 of the main text are as follows:

1. The primary claim in the present case is a claim for compensation based upon a tort by the kokoku appellants on the ground that the telephone equipment in the List of Telephone Equipments as attached to the Judgment of the Osaka District Court, 1992 (Wa) No.8178 (hereinafter, 'the Equipment') which they purchased was defective, e.g. it often becomes impossible to communicate.

2. In the present case, the appellants requested an order to submit the plans for the circuit and the flow of the signals of the Equipment (hereinafter, 'the Documents'), while the opposite party argued that Documents fell within the category of 'documents which contain matters as provided by Art.197, para.1, subpara.3 and for which the duty to remain silent is not excluded' as provided by Art.220, subpara.4 (b) of the Code of Civil Procedure and 'documents which are solely for the use of the possessors' as provided by the same subpara. (c), and therefore, they are not under a duty to produce the Documents.

II. The original instance court ruled that the Documents contain 'know hows' and other technological information which the manufacturer of the Equipment holds, and that if such information is made public, it is foreseeable that the company would incur excessive harm, and therefore, the Documents fall within the category of documents as provided by Art.220, subpara.4 (b) of the Code of Civil Procedure. The original instance court also ruled that the Documents were prepared by the manufacturer to manufacture the Equipment, were not intended to be shown to outsiders at all and were solely for the use of the manufacturer, the opposite party and affiliated companies, and therefore fell within the category of documents as provided by the same subparagraph (c), and thus, the opposite party is not under any obligation to produce the documents, and dismissed the request for an order to produce documents.

III. However, the above ruling of the original instance court is not justifiable. The reasons are as follows:

1. [Summary 2] The term 'technical or professional secret' as provided by Art.197, para.1, subpara.3 of the Code of Civil Procedure should be understood as matters, which, if made public, their social value would decline and the activities using these will be difficult, or will seriously affect the profession and make it difficult to continue the profession.

In the present case, the opposite party argues that if the Documents are made public, the manufacturer of the Equipment will incur a serious disadvantage, but although the Documents may contain technical information which the manufacturer of the Equipment has, the opposite party has not presented the nature of the information or the specific content of the disadvantage which may result from the disclosure, and the decision of the original instance court has not specified this. Therefore, the fact that the above technical information is contained in the Documents does not immediately mean that the Documents are those which contain 'technical or professional secret'.

2. It is the precedent of the Supreme Court that when a certain document was prepared solely for internal use, and did not presuppose disclosure to outsiders by taking into account the purpose of the preparation, the content, the process through which the present possessor has come to possess the document and other circumstances, and when there is a likelihood that by its disclosure, there will be a disadvantage to the possessor which cannot be overlooked, such as breach of privacy or emergence of difficulties in the free formulation of will be an individual or an organisation, unless there are special circumstances, the documents fall within the category of documents which are 'solely for the use of the possessor of the document' as provided by Art.220, subpara.4 of the Code of Civil Procedure (1999 (kyo) No.2, Judgment of the Second Petit Bench, 1999 November 12, to be published in Minshu 53-8).

In the present case, the decision of the original instance court concluded directly from the fact that the Documents were prepared without presupposing them to be disclosed to outsiders that they fall within the category of documents as provided by Art.220, subpara.4 of the Code of Civil Procedure, and failed to specifically determine whether a disadvantage which cannot be overlooked would occur to the possessor.

IV. Thus, the above ruling of the original instance court concerning the Documents has erred in the interpretation and application of the law, and it is evident that this will affect the conclusion of the court. The arguments of the representatives for the kokoku appeal are with grounds, and the part of the decision of the original instance court concerning the Documents cannot but be quashed. In accordance with the above, in order to have the case further examined, the above part shall be remanded to the original instance court.

Therefore, the justices unanimously rule as the main text of the decision.

Justice IJIMA Kazutomo
Justice ONO Motoo
Justice ENDO Mitsuo
Justice FUJII Masao
Justice ODE Takeo