Assignment of a Disputed Asset During Japanese Litigation (Lis Pendens): How Are Court Fees Handled for Successor Participation?

During the course of civil litigation in Japan, it is not uncommon for the subject matter of the dispute—be it real property, a contractual right, or another assignable asset—to be transferred from one of the litigating parties to a third party. This transfer, occurring while the lawsuit is pending (lis pendens), can lead to a shift in the substantive legal standing (実体適格 - jittai tekikaku) concerning the disputed right. Japanese civil procedure provides mechanisms for this third-party successor to become involved in the ongoing lawsuit, a process broadly termed "succession to litigation" (訴訟承継 - soshō shōkei). A key practical question that arises is how court filing fees, based on the "value of suit" (訴額 - so'gaku), are handled when such a successor participates in the case.

Mechanisms for Successor Participation in Ongoing Litigation

When a disputed asset or right is assigned mid-litigation, the third-party successor can become involved through two primary procedural avenues:

1. Intervention by Successor (参加承継 - sanka shōkei):
   The third party who has acquired the disputed right or thing can voluntarily choose to enter the existing lawsuit to assert their newly acquired interest. This is often done by utilizing the procedural framework for "independent party intervention" under Article 47 of the Code of Civil Procedure (CCP).
   • Example from the source text: "Plaintiff P sues Defendant D for eviction from a building. While the suit is pending, P sells the building to Successor S. S can then intervene in the P vs. D lawsuit. S might sue P for a declaration that ownership has indeed transferred to S (if P disputes this aspect of their deal) and, critically, sue D for eviction based on S's new ownership."
2. Assumption of Litigation by Successor (引受承継 - hikiuke shōkei):
   Alternatively, the party in the original lawsuit who is not involved in the transfer (i.e., the opponent of the party who transferred their interest) can apply to the court to have the third-party successor formally take over or "assume" the litigation in place of, or alongside, the original party. This is governed by CCP Articles 50 (if the plaintiff's rights are succeeded to) and 51 (if the defendant's obligations or the disputed thing they possess are succeeded to, typically requiring plaintiff's consent or occurring after service of the complaint).
   • Example from the source text: "Plaintiff P sues Defendant D to compel the removal of D's building from P's land and for the surrender of that land. During the lawsuit, D sells their building (the allegedly encroaching structure) to Successor S. P can then apply to the court to have S assume D's role and obligations in the ongoing litigation concerning the building removal and land surrender."

Court Fee Implications for Successor Participation

The involvement of a successor, whether by their own intervention or by assumption, raises distinct questions about court fees.

I. When the Successor Intervenes (参加承継 - Sanka Shōkei)

If the successor chooses to intervene, typically as an independent party, the question arises whether they must pay new court fees as if initiating a fresh lawsuit.

• The Standard Rule for General Independent Party Interveners: The Civil Procedure Costs Act (Appended Table 1, Item 7) generally requires independent party interveners to pay court fees based on the so'gaku of the claims they themselves assert through the intervention.
• A Critical View for Successors in Title (Author's Perspective from the source text):
  The author of the source material argues strongly that this standard rule for independent interveners should not apply, or at least not in full, to successors in title who intervene in this manner (sanka shōkei). The reasoning is as follows:
  1. Bound by Prior Proceedings: Unlike a general independent party intervener who might not be bound by the prior course of litigation between the original parties, a successor in title (especially one who acquires the interest after the commencement of oral arguments) is often bound by the outcome of the existing lawsuit due to the rules on the extension of res judicata (既判力 - kihanryoku) to successors (CCP Art. 115(1)(iii)). Therefore, the rationale for treating general independent interveners as entirely "new" litigants (who need to pay full fees because they get a fresh adjudication of their independent rights) does not hold true for successors who are, in many respects, stepping into the shoes of their predecessor concerning the already-litigated subject matter.
  2. Unchanged Economic Object: The core economic interest or "object" of the dispute regarding the transferred asset or right remains the same; it has merely changed hands from the predecessor to the successor. The court is still fundamentally adjudicating the same underlying right.
• Conclusion on Fees for Intervening Successors (Author's View): Based on these points, the author of the source material concludes that an intervening successor (sanka shōkei) should not incur new, full court fee obligations as if filing an entirely new lawsuit. The fees already paid by the original party (the predecessor in title) should be deemed to cover the adjudication of the disputed right concerning the transferred object. The system should not effectively charge twice for litigating the same core value.

II. When the Successor Assumes the Litigation (引受承継 - Hikiuke Shōkei)

If a successor is brought into the lawsuit through an application for assumption of litigation by the opposing party, the fee implications are different:

• A. Fee for the Application Itself:
  The Civil Procedure Costs Act (Appended Table 1, Item 17) specifies a nominal fixed fee (currently ¥500 according to the source text) for the application to have a party assume the litigation under CCP Article 50(1). This covers the procedural act of seeking the court's order for assumption.
• B. So'gaku Implications for the Underlying Claim Involving the Successor:
  The source material emphasizes that an application for assumption of litigation is not merely a procedural formality; it inherently involves the assertion or continuation of a substantive claim involving the successor.
  • How the Claim is Reconstituted:
    • If the plaintiff applies to have the defendant's successor assume the litigation, the plaintiff is, in effect, now directing their original claim against this new party (the successor). If the claim's specifics change as a result of the succession (which is rare for the core claim itself), this must be clearly articulated.
    • If the defendant applies to have the plaintiff's successor assume, various legal theories exist on how the claim structure is maintained. One view is that the defendant's application implicitly includes a negative declaratory claim against the successor (i.e., a declaration that the original plaintiff's claim, now held by the successor, is not valid against the defendant). Another view is that once the court orders assumption, the successor is treated as if they had filed the original plaintiff's claim against the defendant. A third suggests the defendant might need to file a formal negative declaratory claim against the successor, which might then become moot if the successor actively pursues the original claim.
  • Economic Unity and So'gaku: Regardless of the precise theory, these scenarios effectively create a subjective joinder of claims involving the original party (or their claim) and the successor. The critical point for so'gaku calculation is that in almost all cases of succession to a pending lawsuit, the claim concerning the successor will have the same economic object as the original claim asserted by or against the predecessor.
  • Consequence for Court Fees: Due to this inherent economic unity, the so'gaku for the substantive claim is not aggregated or recalculated anew merely because a party has been substituted by a successor. The overall "value of suit" for the underlying dispute remains based on the original claim's value. The "higher value" principle (which applies when economically unitary claims are joined) would mean that unless the claim involving the successor is somehow valued higher than the original claim (a rare occurrence in simple succession to the same disputed item), no additional substantial court fees for the main claim become due beyond the nominal application fee for the assumption itself. The fees initially paid are considered to cover the continued adjudication of that original claim value, now with the successor as a party. For instance, if a defendant applies for a plaintiff's successor to assume the suit, and this is viewed as the defendant making an implicit negative declaratory claim against the successor regarding the original plaintiff's claim, this negative declaration is economically unitary with the original claim, meaning no separate fee for this implied claim by the defendant would typically be required.

The Binding Effect of Judgment on Successors (CCP Art. 115(1)(iii))

The rationale for treating successors differently from general independent interveners for fee purposes is reinforced by CCP Article 115(1)(iii). This provision states that a final and binding judgment also has effect for or against a party's successor in title who became so after the conclusion of oral arguments (or, for cases without oral arguments, after the rendering of the judgment). While this specifically addresses post-oral argument succession, the underlying principle—that successors are often bound by judgments concerning their predecessors' rights in the disputed subject matter—supports the argument that they are not entirely "new" parties to the core dispute in a way that would justify levying full new court fees upon their intervention to protect that succeeded interest.

Conclusion

When the subject matter of a pending lawsuit in Japan is transferred to a third party, the mechanisms of "intervention by successor" (sanka shōkei) and "assumption of litigation by successor" (hikiuke shōkei) allow for their participation. From a court fee perspective:

• For assumption of litigation (hikiuke shōkei), a nominal application fee is charged, but the so'gaku for the underlying claim generally remains unchanged, and no substantial additional fees for that claim are typically incurred due to the succession, owing to economic unity.
• For intervention by a successor (sanka shōkei), while general rules for independent party interveners would suggest new fees, strong arguments exist (as highlighted in the source material) that no additional fees should be levied for the core claim, given the successor's often-bound status and the unchanged economic object of the dispute.

Navigating these rules requires a clear understanding of the successor's relationship to the original litigation and the specific procedural path chosen for their involvement.