2026.01.28

2025(Kyo)18

Minshu Vol. 80, No. 1

(Civil Case) Decision concerning cases in which the Supreme Court may dismiss as unlawful a petition for permission to file an appeal against a ruling without transferring it to the court of prior instance on the ground that the written petition therefor was submitted to the Supreme Court

Case of petition for permission to file an appeal against a ruling dismissing a demand for retrial without prejudice

Decision of the First Petty Bench, dismissed without prejudice

Where a person intending to file a petition for permission to file an appeal against a ruling, while recognizing that the court to which the written petition therefor should be submitted is the court of prior instance, nevertheless deliberately submits the written petition to the Supreme Court for an unjust purpose, the Supreme Court may dismiss as unlawful the petition for permission without transferring it to the court of prior instance on the ground that the written petition was submitted to the Supreme Court.

Article 16, paragraph (1), Article 286, paragraph (1), Article 313, Article 337, paragraphs (1), (2), and (6) of the Code of Civil Procedure

The petition in this case is dismissed. The costs of the petition shall be borne by the petitioner.

1. In this case, a petitioner filed a petition for permission to appeal against a ruling dismissing a demand for retrial without prejudice, by submitting to this Court a document stating that such petition is thereby filed (hereinafter referred to as the "Written Petition"). 2. The system of appeal with permission provided in Article 337 of the Code of Civil Procedure is intended to achieve uniform interpretation of laws and regulations while preventing an excessive burden on the Supreme Court. Under this system, an appeal may be filed specially to the Supreme Court against certain rulings and orders of a high court only when the high court rules that the appeal is permitted on the ground that it falls under the case where the relevant judicial decision contains a determination that conflicts with precedents of the Supreme Court or the case where it is otherwise found to involve matters of material import involving the interpretation of laws and regulations. Since the Code of Civil Procedure provides that a petition for permission to file an appeal against a ruling must be made by submitting to the court of prior instance a written petition for permission (Article 337, paragraph (6), Article 313, and Article 286, paragraph (1)), whether it falls under one of the above cases is a matter to be judged by the court of prior instance in its ruling on permission. Accordingly, submission of a written petition therefor to the Supreme Court is not contemplated under this system. Nevertheless, where a person intending to file a petition for permission (hereinafter simply referred to as the "petitioner") not only submits the written petition therefor to the Supreme Court but does so deliberately for an unjust purpose while recognizing that the court to which the written petition must be submitted is the court of prior instance, it must be said that the petitioner has chosen to file the petition by particularly intending to deviate from the system of appeal with permission. It should be said that there is no reason to legally protect a petitioner who files a petition for permission with such an unjust purpose by transferring such petition to the court of prior instance. In light of the foregoing, in such a case, since it is clear that the petition is unlawful, it must be considered that it is not necessary to transfer it to the court of prior instance for the purpose of having that court rule on the permission for which such petition is filed. Such a consideration does not conflict with the system of appeal with permission. Accordingly, in such a case, it should be said that the Supreme Court may dismiss the petition for permission as unlawful without transferring it to the court of prior instance on the ground that the written petition was submitted to the Supreme Court. 3. According to the Written Petition and its accompanying documents, the petitioner filed the present petition by appointing Attorney A (hereinafter referred to as the "Attorney") as counsel, and having the Attorney prepare and submit the Written Petition to this Court. The Written Petition states that, prior to the present petition, there were multiple cases in which the Attorney filed the petitions for permission to file an appeal against a ruling by submitting the written petitions therefor to the Supreme Court and the petitions were transferred. Moreover, the Written Petition in Question explicitly states that transfer to the Sendai District Court or the Hiroshima District Court is desired, and transfer to one of the courts whose immediately superior court is the Fukuoka High Court is refused. Accordingly, it should be said that it is clear that the present petition was deliberately filed with the Supreme Court for the unjust purpose of seeking transfer to a court of his/her own choosing while fully recognizing that such petition contravenes the above provisions of the Code of Civil Procedure. In light of the above, the present petition must be regarded as having been filed by deliberately choosing to make an unlawful petition for permission with the intention of deviating from the system of appeal with permission, and therefore should be dismissed as unlawful without being transferred to the court of prior instance. 4. Accordingly, the Court unanimously decides as set forth in the main text of the decision.

Justice YASUNAMI Ryosuke Justice OKA Masaaki Justice SAKAI Toru Justice MIYAGAWA Mitsuko Justice NAKAMURA Makoto