Appealing to the Supreme Court of Japan (Jokoku Appeal): When is a Case Heard, and What are the Differences Between "Quashing" (Haki) and "Reversal" (Torikeshi)?

Japanese Attorney at Law - Bengoshi L.L.

• 10 min read

The Japanese judicial system, like many others, provides multiple tiers of review to ensure the correctness and uniformity of legal judgments. After a first instance judgment and a Koso appeal (the first level of appeal, typically to a High Court), the final avenue for challenging a civil judgment is often a Jokoku appeal (上告). This appeal is usually directed to the Supreme Court of Japan, although in certain specific instances, a High Court can also function as the final Jokoku appellate court. Understanding the distinct nature of the Jokoku appeal, the stringent criteria for bringing a case before the Supreme Court, and the specific terminology used—such as "quashing" (haki - 破棄) a judgment versus "reversing" (torikeshi - 取消し) it—is crucial for navigating this ultimate stage of litigation.

The Nature of a Jokoku Appeal: A Review of Law, Not Fact

A fundamental distinction between a Koso appeal and a Jokoku appeal lies in their scope of review:

  • Koso Appeal: This is an appeal to a "court of second instance" which functions as a further fact-finding court (zokushinsei - 続審制). It re-examines both facts and law.
  • Jokoku Appeal: This is an appeal to a "court of law" (hōritsushin - 法律審). Its primary role is to review the lower court's judgment for errors in the interpretation or application of law. It also acts as a "court of review of the prior judgment" (jigo-shin - 事後審), meaning it bases its review on the record and factual findings established by the lower courts.

Generally, a Jokoku court does not re-evaluate or re-determine the facts of the case as found by the lower fact-finding courts (Article 321, Paragraph 1 of the Code of Civil Procedure - CCP). It is bound by those factual findings unless it can be shown that the process of fact-finding itself involved a serious violation of law (e.g., a misapplication of rules of evidence, or findings completely unsupported by any evidence, which can be framed as an error of law). The distinction in terminology for overturning a lower court's judgment—"reversal/cancellation" (torikeshi) in Koso appeals versus "quashing" (haki) in Jokoku appeals—reflects this difference in function. The term "quashing" has historical links to systems like the French Cour de cassation, which also focuses on legal error and uniformity, and signifies a more fundamental nullification of the flawed legal reasoning of the lower judgment.

Accessing the Supreme Court: Direct Jokoku Appeal vs. Petition for Acceptance

Gaining access to the Supreme Court of Japan for a Jokoku appeal in a civil case is a filtered process, significantly reformed in 1996 to manage the Court's substantial caseload and allow it to focus on its core constitutional and law-unifying functions.

1. Direct Jokoku Appeal to the Supreme Court (Article 312 CCP)

A party can file a direct Jokoku appeal to the Supreme Court only on very limited and specific grounds:

  • Violation of the Constitution (Article 312, Paragraph 1 CCP): This includes alleging that the lower court's judgment itself, or the legal provisions it applied, are unconstitutional.
  • Absolute Grounds for Jokoku Appeal (Article 312, Paragraph 2 CCP): These are certain serious procedural errors deemed so fundamental that they warrant review by the Supreme Court irrespective of their specific impact on the outcome. Examples include:
    • Improper composition of the lower court.
    • A judge participating who was legally disqualified.
    • Violation of rules concerning exclusive jurisdiction.
    • Lack of necessary legal representation for a party.
    • Violation of rules requiring public trial.
    • The judgment lacking reasons or its reasoning being internally contradictory.

Notably, a mere "error of law that clearly affected the judgment"—which is a ground for Jokoku appeal to a High Court when it acts as the final appellate instance (Article 312, Paragraph 3 CCP)—is no longer a ground for a direct Jokoku appeal to the Supreme Court.

2. Petition for Acceptance of Jokoku Appeal (Jōkoku Juri Mōshitate - 上告受理申立て) (Article 318 CCP)

For most other alleged errors of law in a High Court judgment (i.e., violations of laws or regulations not falling under the direct Jokoku grounds of Article 312(1) or (2)), a party cannot appeal directly. Instead, they must file a Petition for Acceptance of Jokoku Appeal with the Supreme Court.

  • Grounds for Acceptance: The Supreme Court may, at its discretion, accept the case for review as a Jokoku appeal if it finds that the lower court's judgment involves:
    • An important issue concerning the interpretation of laws or regulations.
    • Or if acceptance of the appeal is otherwise found to be particularly necessary for the development of case law or for ensuring the uniform interpretation of laws or regulations (this phrasing reflects amendments; historically, "violation of judicial precedents" (hanrei ihan - 判例違反) was a more explicit consideration, now often subsumed under these broader criteria).
  • Procedure if Accepted: If the Supreme Court accepts the petition, the case is thereafter treated as if a direct Jokoku appeal had been filed (Article 318, Paragraph 4 CCP). The reasons stated in the successful petition (unless deemed minor and excluded by the Court) typically become the grounds for the Jokoku appeal. The procedural rules for Jokoku appeals largely apply to the petition process as well, including the suspension of the judgment's finality (Article 116 CCP) and the possibility of obtaining a stay of execution (Articles 403, 404 CCP).

This discretionary "gatekeeping" system ensures that the Supreme Court dedicates its limited resources to cases of significant legal or constitutional importance.

Judgments of the Jokoku Appellate Court

Once a Jokoku appeal (either direct or via an accepted petition) is before the appellate court (Supreme Court or, in some instances, a High Court), it can render several types of final decisions:

A. Dismissal of the Jokoku Appeal (Jōkoku Kyakka - 上告却下)

This is a procedural dismissal indicating that the Jokoku appeal itself is inadmissible due to fatal procedural defects. This might occur if:

  • The appeal is filed out of time.
  • The appellant lacks a legally recognized interest to appeal.
  • The mandatory Statement of Reasons for Jokoku Appeal (上告理由書 - jōkoku riyūsho) was not filed within the statutory period (50 days from receipt of notice of filing of appeal, Rule 194 of the Rules of Civil Procedure), or is substantively defective (e.g., fails to state any cognizable grounds for appeal).

Under Articles 316 and 317 CCP, if such defects are clear and cannot be corrected, this dismissal can be made by a simpler judicial "decision" (kettei - 決定) rather than a full "judgment" (hanketsu - 判決). This can be done by the court from which the appeal is taken (the "original court" - gen-shin, 原審, under Art. 316(1)) or by the Jokoku court itself (Art. 317(1)). If not handled by a kettei, a formal hanketsu of dismissal would be issued.

B. Rejection of the Jokoku Appeal (Jōkoku Kikyaku - 上告棄却)

This is a judgment on the merits of the appeal itself, rendered when the Jokoku court concludes that the grounds for appeal raised by the appellant are not valid or sufficient to warrant overturning the lower court's judgment (Article 319 CCP).

  • Jokoku proceedings are predominantly based on written submissions. Oral argument is rare, reflecting the court's role as a court of law focused on legal interpretation based on the established record.
  • If, after reviewing the written arguments, the Jokoku court finds no reversible legal error, it will issue a judgment rejecting the appeal. This has the effect of affirming the lower court's judgment, which then becomes final and binding.
  • For appeals to the Supreme Court, if it is evident that the asserted grounds clearly do not fall under Article 312, Paragraph 1 (constitutional violation) or Paragraph 2 (absolute grounds for appeal), the Supreme Court also has the power to reject the appeal by a simpler "decision" (kettei) rather than a full judgment (Article 317, Paragraph 2 CCP). This was a measure introduced in the 1996 reforms to further streamline the Supreme Court's handling of clearly unfounded appeals.

C. Quashing of the Original Judgment (Genhanketsu Haki - 原判決破棄)

This is the outcome when the Jokoku court finds that the appeal is well-grounded and that the lower court's judgment (the "original judgment" - genhanketsu, 原判決) contains a reversible error of law. "Quashing" means the appealed judgment is nullified and ceases to have legal effect.
Grounds for quashing (Article 325 CCP) include:

  • A violation of the Constitution (Art. 312(1)).
  • An absolute ground for Jokoku appeal (Art. 312(2)).
  • For Jokoku appeals to a High Court, or those accepted by the Supreme Court via petition: A violation of other laws or regulations that clearly affected the judgment (Art. 325(1) latter part for High Courts; Art. 325(2) for Supreme Court ex officio finding or based on accepted petition).

Consequential Actions After Quashing: When a judgment is quashed, the Jokoku court must then decide the further disposition of the case:

  1. Remand (Sashimodoshi - 差戻し) or Transfer (Isō - 移送) (Article 325 CCP – The Principle):
    Since the Jokoku court is primarily a court of law and generally does not engage in new fact-finding, the standard procedure after quashing a judgment due to legal error is to remand the case to the original lower court (usually the High Court that rendered the quashed judgment, or sometimes even the District Court if appropriate) for re-examination and a new judgment in light of the Jokoku court's legal rulings.
    Alternatively, the Jokoku court may transfer the case to another court of equivalent level if, for example, the judges of the original court are now disqualified from hearing the remanded case (e.g., due to rules preventing judges who participated in a quashed judgment from participating in its retrial, Article 325, Paragraph 4 CCP).
    A crucial aspect of remand/transfer is that the legal (and sometimes key factual) findings contained in the Jokoku court's quashing judgment are binding on the court that subsequently hears the remanded or transferred case (Article 325, Paragraph 3 CCP; also Article 4 of the Court Act). This ensures consistency and prevents an indefinite back-and-forth between appellate and lower courts.
  2. Judgment by the Jokoku Court Itself (Jihan - 自判) (Article 326 CCP – The Exception):
    In certain specific circumstances, the Jokoku court, after quashing the lower court judgment, may render its own final judgment on the merits of the case, thereby concluding the litigation without a remand. This is known as jihan. Article 326 CCP mandates jihan in two primary situations:Jihan is also employed by the Supreme Court to correct procedural errors made by a High Court in its capacity as a Koso appellate court, thereby avoiding unnecessarily circuitous remands. For example, if a High Court wrongly upheld a District Court's improper procedural dismissal, the Supreme Court might quash the High Court judgment and itself issue the order the High Court should have made (such as remanding the case from the High Court level back to the District Court for a trial on the merits, or directly dismissing the action if that's what the High Court should have concluded).
    • When the judgment is quashed due to a misapplication of the Constitution or other laws or regulations, and the case can be definitively decided based solely on the facts already lawfully determined by the lower court (Article 326(i)). If no further fact-finding is necessary and only the correct application of law to the established facts is required, the Jokoku court must issue its own final judgment.
    • When the judgment is quashed because the case was not within the jurisdiction of the courts, or for other reasons where a dismissal of the original plaintiff's action is the necessary legal outcome based on facts that the Jokoku court can itself determine (e.g., a lack of a critical procedural requirement that is evident from the record – Article 326(ii)). This often results in the Jokoku court itself ordering the dismissal of the plaintiff's original action.

The Choice Between Remand/Transfer and Jihan

Article 326 CCP outlines when jihan (judgment by the Jokoku court itself) is mandatory. In other cases of quashing, Article 325(1) CCP (for general Jokoku appeals where grounds under Art. 312 are met) makes remand or transfer the default. Article 325(2) CCP, which applies when the Supreme Court quashes a judgment based on an error of law it finds (often in cases accepted via petition, or ex officio), states that the Supreme Court may remand or transfer. The interpretation of this "may" is subject to some debate—whether it confers discretion only on the choice between remand/transfer and jihan (if jihan is otherwise permissible but not mandatory under Art. 326), or even discretion on whether to quash at all once a significant legal error is found. However, once a decision to quash is made, the pivotal factor often becomes whether the Jokoku court believes the case can be finally and justly resolved based on the existing, lawfully determined factual record, or if further factual development or re-evaluation at a fact-finding instance is indispensable. This often involves a pragmatic, case-by-case assessment by the Jokoku court.

Grounds for Retrial (Saishin Jiyū) and Their Interaction with Jokoku Appeal Grounds

A complex procedural area involves the relationship between grounds for retrial (saishin jiyū - 再審事由, listed in Article 338(1) CCP, which allow for the reopening of a judgment that has already become final and binding) and grounds for a Jokoku appeal. Some grounds for retrial are not explicitly listed as "absolute grounds for Jokoku appeal" in Article 312(2) CCP (e.g., judgment obtained through criminal acts by judges or parties, use of forged evidence, perjured testimony, a foundational prior judgment being overturned, or the judgment conflicting with another prior final judgment).

The question arises: if such a defect (which is a ground for retrial) is discovered or alleged before the judgment becomes final through the Jokoku appeal process, can it be raised as a ground for Jokoku appeal itself, potentially leading to the judgment being quashed at the Jokoku stage rather than forcing the party to wait for finality and then file a separate retrial action?

Historically, and under current Supreme Court practice, the existence of certain retrial grounds has often been treated as constituting a "violation of laws or regulations that clearly affected the judgment."

  • For instance, the Supreme Court has considered an "omission of a finding on an important matter that should affect the judgment" (a retrial ground under Article 338(1)(ix) CCP) as a "violation of laws or regulations clearly affecting the judgment," leading to quashing (e.g., Supreme Court, June 29, 1999, Saibanshu Minji No. 193, p. 411).
  • Similarly, if a prior judgment that formed the basis of the appealed judgment is subsequently altered (a retrial ground under Article 338(1)(viii) CCP), this has been treated as a "violation of laws or regulations clearly affecting the judgment" that can lead to the quashing of the appealed judgment (e.g., Supreme Court, October 31, 2003, Saibanshu Minji No. 211, p. 325).

This approach means that such issues are not treated as new, independent absolute grounds for a direct Jokoku appeal to the Supreme Court. Instead, for access to the Supreme Court, they would typically need to be framed within a Petition for Acceptance of Jokoku Appeal (Article 318 CCP), arguing that the lower court's failure to recognize or deal with this (retrial-level) defect constitutes an error of law involving an "important issue concerning the interpretation of laws or regulations" because allowing a judgment tainted by such a fundamental flaw to stand would be improper. If the Supreme Court accepts the petition, it can then quash the judgment under Article 325(2) CCP based on this "violation of laws or regulations clearly affecting the judgment." This allows for the correction of serious errors that also constitute retrial grounds within the appellate process itself where appropriate, promoting judicial economy.

Conclusion

The Jokoku appeal serves as the final stage of judicial review in most Japanese civil cases, primarily focused on correcting errors of law and ensuring the uniform interpretation and constitutional compliance of lower court judgments. Access to the Supreme Court is carefully managed through a system combining limited grounds for direct appeal with a discretionary petition for acceptance for broader legal issues of importance. When a Jokoku court finds reversible error, its act of "quashing" the lower court judgment typically leads to a remand for re-adjudication by a fact-finding court, unless the case can be definitively resolved based on the already established factual record, in which instance the Jokoku court will render its own final judgment. The procedural framework also provides avenues for addressing fundamental flaws that might otherwise be grounds for retrial, integrating them into the appellate review where possible to achieve both finality and justice.