2025.09.09

2023(Ju)2207

Minshu Vol. 79, No. 6

(Civil Case) Judgment concerning, in the case where a judgment in an action to dispute a claim, by which a request for the court's disallowance of judicial enforcement was dismissed, became final and binding, and a decision ordering a stay of judicial enforcement in response to a petition filed with that action designated as the primary suit was reversed, whether the person that filed the petition is liable to compensate for damage sustained by the obligee due to the stay of judicial enforcement

Case seeking compensation for damage

Judgment of the Third Petty Bench, quashed and remanded

Osaka High Court, Judgment of July 27, 2023

In the case where a decision ordering a stay of judicial enforcement was made in response to a petition for a stay of judicial enforcement under Article 36, paragraph (1) of the Civil Enforcement Act that was filed with an action to dispute a claim designated as the primary suit, and then, a judgment in that action, by which the request for the court's disallowance of judicial enforcement was dismissed, became final and binding, and the decision ordering a stay of judicial enforcement was reversed, the person that filed the petition is liable to compensate for the damage sustained by the obligee due to the stay of judicial enforcement if the person was intentional or negligent concerning the fact that the grounds to dispute argued by the person lack a practical or legal basis.

Article 709 of the Civil Code; Article 36, paragraph (1) of the Civil Enforcement Act

1. The judgment in prior instance is quashed for its part concerning the claim of the appellant of final appeal to seek compensation for damage filed against the appellees of final appeal in relation to the appellees' petition for a stay of judicial enforcement. 2. The case is remanded to the Osaka High Court with respect to the part mentioned in the preceding paragraph. 3. The final appeal concerning the other claims of the appellant of final appeal is dismissed. 4. The costs of the final appeal concerning the claims mentioned in the preceding paragraph shall be borne by the appellant of final appeal.

Concerning the reasons for a petition for acceptance of final appeal stated by the counsel for final appeal, TOMITA Norifumi and OGAWA Masataka (except for the reasons excluded) 1. The outline of the facts determined by the court of prior instance is as follows. (1) In the suit filed by the appellant against Appellee Y1 to demand that Appellee Y1 vacate the real property in their possession (referred to below as the "Real Property") (this suit is referred to below as the "Suit Seeking Vacation"), a judgment ordering Appellee Y1 to vacate the Real Property was rendered and became final and binding in February 2021 (this final and binding judgment is referred to below as the "Final and Binding Judgment"). (2) In March 2021, Appellee Y1, while retaining an attorney at law, Appellee Y2, as their counsel, filed an action to dispute a claim with the Kyoto District Court to request the court to disallow the judicial enforcement based on the Final and Binding Judgment, and in April 2021, filed a petition for a stay of judicial enforcement under Article 36, paragraph (1) of the Civil Enforcement Act (referred to below as the "Act"), with that action to dispute a claim designated as the primary suit (this petition is referred to below as the "Petition for Stay of Enforcement"). In April 2021, based on the Petition for Stay of Enforcement, the Kyoto District Court made a decision ordering a stay of the judicial enforcement based on the Final and Binding Judgment, while having Appellee Y1 provide security. (3) In the action to dispute a claim mentioned above, Appellee Y1 argued, as the grounds to dispute, that Appellee Y1 holds a right of retention for the Real Property and that the judicial enforcement to be carried out using the Final and Binding Judgment as the title of obligation constitutes an abuse of right. In October 2021, the Kyoto District Court rendered a judgment to dismiss Appellee Y1's request, holding that the grounds argued by Appellee Y1 mentioned above are related to circumstances that had existed before the conclusion of the oral arguments in the fact-finding proceedings in the Suit Seeking Vacation and therefore that they do not constitute legal grounds to dispute. 2. In this case, the appellant has filed claims against the appellees to seek compensation for damage caused by the delay in judicial enforcement, alleging that the filing of the Petition for Stay of Enforcement constitutes a tort. 3. Given the facts mentioned above, with regard to the appellant's claim for compensation for damage related to the Petition for Stay of Enforcement, the court of prior instance determined as summarized below and found that the appellees were not liable to compensate for damage, and in conclusion, ruled that all of the appellant's claims against the appellees should be dismissed. The filing of an action to dispute a claim becomes illegal only when the filing of such action is found to be extremely inappropriate in light of the purpose and objective of the litigation system. Since a petition for a stay of judicial enforcement under Article 36, paragraph (1) of the Act, which is based on an action to dispute a claim designated as the primary suit, is filed in association with that action, it should be said that such petition for a stay of judicial enforcement becomes illegal only if the petition is found to be extremely inappropriate in light of the purpose and objective prescribed in that paragraph. Even if a judgment dismissing a request for the court's disallowance of judicial enforcement is rendered in that action to dispute a claim, and the decision ordering a stay of judicial enforcement based on that petition for a stay of judicial enforcement is reversed, this alone cannot be the reason for presuming the negligence on the part of the party that filed that petition. 4. However, the abovementioned determination by the court of prior instance cannot be upheld, for the following reasons. Article 36, paragraph (1) of the Act provides that if an action to dispute a claim is filed, the court in charge of the action may, upon petition, order a stay of the judicial enforcement. The purport of this provision is as follows: even if the obligor files an action to dispute a claim, the filing of such action does not preclude the commencement and continuation of judicial enforcement based on the title of obligation, in which case the enforcement might be completed before a judgment is rendered in that action; therefore, this provision sets in place an interim arrangement in consideration of the possibility that the obligor may obtain a final and binding judgement granting their request for the court's disallowance of judicial enforcement in the action to dispute a claim, enabling the court in charge of the action to order a stay of judicial enforcement as a provisional disposition. Meanwhile, Article 22 of the Act provides that judicial enforcement is carried out based on a title of obligation, a statutory instrument that officially certifies the existence and content of certain types of claims for performance. The obligee's interest in fulfilling their claim for performance, which has been officially certified based on the title of obligation, through judicial enforcement, must be protected by law, but, if a petition for a stay of judicial enforcement is filed, judicial enforcement would become delayed or impossible, which could infringe the obligee's interest. In addition, although a petition for a stay of judicial enforcement is to be filled in association with an action to dispute a claim, it must be filed separately from an action to dispute a claim, and whether to file that petition is left to the choice of the obligor. In that case, there is no reason for the obligee to tolerate their interest mentioned above being infringed by a petition for a stay of judicial enforcement that was filed despite the lack of a practical or legal basis. It should be said that a person filing a petition for a stay of judicial enforcement has the duty of care to investigate and consider whether there is any reasonable basis that practically or legally supports the existence of the grounds to dispute, so that the obligee's interest mentioned above would not be unjustly infringed. According to the above, in the case where a decision ordering a stay of judicial enforcement was made in response to a petition for a stay of judicial enforcement under Article 36, paragraph (1) of the Act that was filed with an action to dispute a claim designated as the primary suit, and then, a judgment in that action, by which the request for the court's disallowance of judicial enforcement was dismissed, became final and binding, and the decision ordering a stay of judicial enforcement was reversed, the person that filed the petition is liable to compensate for the damage sustained by the obligee due to the stay of judicial enforcement if the person was intentional or negligent concerning the fact that the grounds to dispute argued by the person lacks a practical or legal basis. Clearly, the person that filed the petition for a stay of judicial enforcement does not have such liability to compensate for damage only when the petition is found to be extremely inappropriate in light of the purpose and objective of that paragraph. In the case mentioned above, it is highly likely that the person that filed the petition for a stay of judicial enforcement failed to fully exercise the duty of care concerning the basis for the grounds to dispute. In addition, a decision ordering a stay of judicial enforcement under Article 36, paragraph (1) of the Act is to be made through a simplified procedure. In light of these points, it should be said that it would be equitable to give consideration to enabling the obligee to recover from the harm that has been caused by the stay of judicial enforcement. Consequently, in the case mentioned above, it is reasonable to presume that the person that filed the petition for a stay of judicial enforcement was negligent in fully exercising the abovementioned duty of care, but, if it is found, in light of the type of the title of obligation, the details of the grounds to dispute, and other matters, that the person had reasonable grounds for filing the petition, it cannot be said that the mere fact that the decision ordering a stay of judicial enforcement based on the petition has been reversed automatically implies the petitioner's negligence. 5. Based on the view contrary to the above, the court of prior instance determined that all of the appellant's claims for compensation for damage against the appellees in relation to the Petition for Stay of Enforcement should be dismissed, 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 part of the judgment in prior instance that was ruled against those claims should inevitably be quashed. With regard to the quashed part, this case is remanded to the court of prior instance to have it further examine issues including whether there was a breach of the duty of care mentioned above. The final appeal concerning the other claims is dismissed as the reasons for a petition for acceptance of final appeal were excluded by an order to accept a final appeal. For the reasons stated above, the Court unanimously decides as set forth in the main text of the judgment.

Justice WATANABE Eriko Justice UGA Katsuya Justice HAYASHI Michiharu Justice ISHIKANE Kimihiro Justice HIRAKI Masahiro