Beyond Money: How Does Japan Enforce Non-Monetary Claims like Delivery of Goods or Specific Performance?

While many civil disputes revolve around monetary claims, a significant number involve obligations that cannot be satisfied by a simple payment of money. These "non-monetary claims" can range from the delivery of a specific piece of property or the vacating of real estate, to the performance of a particular service, refraining from a certain action, or even making a formal declaration of legal intent. The Japanese civil execution system provides a distinct set of rules and procedures, collectively known as "non-monetary execution" (hi-kinsen shikkō, 非金銭執行), to address such situations. These methods aim to provide effective remedies when a debtor fails to voluntarily comply with a court order or other title of obligation concerning non-pecuniary duties.

Unlike some jurisdictions that might rely more heavily on contempt of court proceedings with potential imprisonment for non-compliance with non-monetary orders, Japan's Civil Execution Act outlines specific methods tailored to the nature of the obligation. These primarily fall into three broad categories: execution for the delivery of property, execution for the performance of an act or forbearance, and execution for an obligation to make a declaration of intent.

I. Execution for the Delivery of Specific Property (Mono no Hikiwatashi/Akewatashi no Kyōsei Shikkō)

This category deals with situations where the debtor is obligated to hand over or vacate specific items of property. The methods differ slightly depending on whether the property is real or movable.

A. Delivery or Vacating of Real Property (不動産の引渡し・明渡しの強制執行 - Article 168, Civil Execution Act)

When a debtor is ordered to deliver possession of real property (e.g., land or a building) or to vacate it (akewatashi, 明渡し, which implies removing occupants and their belongings), the primary method of enforcement is direct compulsory execution (chokusetsu kyōsei, 直接強制).

• Role of the Court Execution Officer (Shikkōkan): This type of execution is carried out by a court execution officer. The officer's task is to physically dispossess the debtor (and any persons occupying under the debtor without a right enforceable against the creditor) and place the creditor in possession.
• Creditor's Presence: The creditor or their representative is generally required to be present at the site of execution to formally receive possession.
• Dealing with Movables on the Premises: If the debtor or other occupants leave movable property behind, the execution officer must remove these items. They are then typically handed over to the debtor or their family/employees if present and willing to accept them. If not, the officer may sell them on the spot (if they have value and the situation warrants) or store them at the debtor's expense. Eventually, stored items may also be sold if unclaimed. The proceeds from such sales, after deducting costs, are usually deposited with a legal affairs bureau.
• Notice of Vacating (Akewatashi no Saikoku, 明渡しの催告 - Article 168-2, Civil Execution Act): A significant feature, formally introduced into the Act in 2003 based on long-standing practice, is the "notice of vacating." Within two weeks of a petition for execution, the execution officer typically issues a formal notice to the debtor. This notice sets a deadline by which the debtor must voluntarily vacate the premises (usually about one month from the notice). More importantly, this notice has the effect of "fixing the parties" concerning possession. Any subsequent transfer of possession by the debtor to a third party during the notice period will generally not be effective against the executing creditor, meaning the execution can proceed as if the debtor were still in possession. The execution officer will also post a public notice (kōjisho, 公示書) at the property indicating that it is subject to execution and that transfer of possession is prohibited.
• Execution Officer's Powers: The execution officer has the authority to enter the property, and if necessary, to open locked doors (often with the assistance of a locksmith) and use necessary force or request police assistance to overcome resistance.
• Indirect Compulsory Execution as an Option: Since a 2003 amendment, indirect compulsory execution (discussed below) can also be utilized as an alternative or supplementary method to compel the debtor to vacate real property (Article 173, Civil Execution Act).
• Delivery by a Third Party (Article 170, Civil Execution Act): If the real property is in the possession of a third party who is obligated to deliver it to the debtor (not directly to the creditor), the creditor can seize the debtor's right to claim delivery from that third party. The court may then issue an order permitting the creditor to exercise this right.

B. Delivery of Specific Movable Property (動産の引渡しの強制執行 - Article 169, Civil Execution Act)

For obligations to deliver specific items of movable property (e.g., a particular piece of machinery, a work of art), the enforcement method is also direct compulsory execution.

• The court execution officer takes the specified movable(s) from the debtor's possession and delivers them to the creditor.
• Similar to real property execution, the officer has the power to enter the debtor's premises, search for the targeted movables, and open locked doors or containers if necessary.
• Indirect compulsory execution is also available as an alternative for compelling the delivery of movables (Article 173, Civil Execution Act).

C. Special Case: Delivery of a Child (子の引渡しの強制執行)

The enforcement of orders for the delivery of a child in custody disputes is an exceptionally sensitive and evolving area of Japanese law. Historically, such orders were often enforced through indirect compulsion due to concerns about the child's welfare. However, from around 2000, for younger children (often considered to be those under approximately 10 years of age), direct compulsion, treating the child somewhat analogously to a movable for the purpose of physical transfer by an execution officer, became more common, albeit highly controversial.

This practice drew criticism for potentially traumatizing children by treating them as objects. The focus has been shifting towards approaches that prioritize the child's well-being. Japan's ratification of the Hague Convention on the Civil Aspects of International Child Abduction and its domestic implementing legislation (Act for Implementation of the Convention on the Civil Aspects of International Child Abduction) have introduced specific procedures for international child return cases. This Act, for example, mandates attempting indirect compulsion first. If that fails, it allows for "alternative execution" (which resembles direct execution in some aspects) by an execution officer, but with explicit safeguards prohibiting the use of force directly against the child or in any manner that would cause physical or psychological harm to the child.

While these specific provisions relate to international cases, they reflect a growing awareness of the need for child-centered enforcement. Even in domestic cases, courts and execution officers are increasingly expected to consider the child's age, maturity, and wishes, and to employ methods that minimize distress. The role of child procedure代理人 (child's procedural representatives appointed by the Family Court) in such enforcement scenarios is also an area of ongoing development. The goal is to balance the enforcement of legal custody rights with the paramount consideration of the child's best interests.

II. Execution of Obligations to Perform an Act or To Forbear from an Act (Sakui/Fusakui no Kyōsei Shikkō)

This category covers a wide range of obligations where the debtor is required to do something (an "act" - sakui, 作為) or refrain from doing something (a "forbearance" - fusakui, 不作為).

A. Execution of an Obligation to Perform a Fungible Act (代替的作為義務の強制執行 - Article 171, Civil Execution Act)

A "fungible act" (daitai-teki sakui gimu, 代替的作為義務) is an obligation that can be performed by someone other than the debtor without altering its essential nature. Examples include the demolition of an unauthorized structure, the repair of a defective product, or the removal of an obstruction.

• Method: Alternative Execution (Daitai Shikkō, 代替執行):
  • The creditor petitions the execution court for an "authorization order" (juken kettei, 授権決定).
  • This order, if granted, authorizes the creditor (or a person designated by the creditor, often the execution officer) to arrange for a third party to perform the act at the debtor's expense (Article 414, paragraph 2, main text, Civil Code; Article 171, paragraph 1, Civil Execution Act). For instance, if a debtor is ordered to remove an illegally built fence but fails to do so, the creditor can obtain an authorization order, hire a contractor to remove the fence, and then claim the costs from the debtor.
  • The court must generally interrogate (question) the debtor before issuing such an order.
  • The court can also issue an order requiring the debtor to make an advance payment to the creditor for the anticipated costs of the alternative execution (Article 171, paragraph 4). This advance payment order itself can serve as a title of obligation for monetary execution if unpaid.
• Indirect Compulsory Execution as an Alternative: Since a 2003 amendment, indirect compulsory execution (see below) can also be used as a method to enforce obligations to perform fungible acts (Article 173, Civil Execution Act). This provides the creditor with a choice of enforcement strategy. For example, ordering a debtor to pay a daily fine until they remove an offending advertisement might be more effective or less costly for the creditor than arranging for alternative execution.

B. Execution of an Obligation to Perform a Non-Fungible Act (不代替的作為義務の強制執行 - Article 172, Civil Execution Act)

A "non-fungible act" (fu-daitai-teki sakui gimu, 不代替的作為義務) is one that, by its nature, can only be performed by the debtor themselves. The performance by a third party would not achieve the intended result. Examples include:

• An artist's obligation to paint a portrait.
• A singer's obligation to perform at a concert.
• A parent's obligation to facilitate visitation between their child and the other parent (though often intertwined with child welfare considerations).
• An obligation to deliver specific documents that only the debtor possesses.
• Method: Indirect Compulsory Execution (Kansetsu Kyōsei, 間接強制):
  • This is the primary method for enforcing non-fungible acts. The execution court, upon the creditor's petition, orders the debtor to pay a certain amount of money (a "compulsion fine" or 強制金 - kyōseikin) to the creditor for each day or instance of non-performance, or for a specified period until performance is rendered.
  • The purpose is to exert psychological and financial pressure on the debtor to comply voluntarily. The amount of the compulsion fine is determined at the court's discretion, taking into account factors such as the nature of the obligation, the harm caused by non-performance, and the debtor's financial capacity. There is no statutory upper limit on the daily or total amount of compulsion fines, though courts are expected to set reasonable amounts. In some cases, particularly involving protracted non-compliance with obligations like posting apologies or ceasing certain business practices, accumulated compulsion fines have reached very substantial sums, leading to further litigation on whether the enforcement of such large accumulated fines constitutes an abuse of rights.
  • The court must interrogate the debtor before issuing an indirect compulsion order.
  • The compulsion fine paid by the debtor is generally considered to be applied towards any damages suffered by the creditor due to the non-performance, but it does not preclude a separate claim for damages if the actual damages exceed the fines collected (Article 172, paragraph 4).
• Limits of Enforceability: Certain highly personal acts, such as those involving artistic creation, a specific lecture, or expressions of personal sentiment (like a direct apology, as opposed to a mandated apology advertisement which might be treated as fungible), are generally considered unenforceable even by indirect compulsion if the debtor steadfastly refuses. Forcing such acts would be meaningless or contrary to public policy or fundamental rights like freedom of thought and conscience. In such cases, the creditor may be limited to seeking monetary damages for the non-performance.

C. Execution of an Obligation to Forbear from an Act (不作為義務の強制執行 - Article 172, Civil Execution Act)

An obligation of forbearance (fusakui gimu, 不作為義務) requires the debtor not to do something. Examples include:

• Not to construct a building that would infringe on a neighbor's right to sunlight.
• Not to operate a factory in a way that causes a prohibited level of noise or pollution.
• Not to disclose confidential information.
• Not to obstruct a right of way (as in Case 38, concerning interference with passage).
• Primary Method: Indirect Compulsory Execution: The main enforcement tool is indirect compulsion. The court orders the debtor to pay a compulsion fine to the creditor for any future violation of the forbearance obligation. A Supreme Court decision on December 9, 2005, clarified that an indirect compulsion order for a forbearance obligation can be issued even before an actual violation occurs, provided there is a demonstrable risk of future violation; the creditor does not need to wait for the harm to materialize.
• Removal of Results of Violation (Article 171 applied via Article 414, paragraph 3, Civil Code): If the debtor violates the forbearance obligation and creates a state of affairs that contravenes it (e.g., builds the prohibited structure, or erects an obstructing fence), the creditor has an additional remedy. They can petition the court for an authorization order for alternative execution to have the results of the violation removed (e.g., demolish the infringing structure, remove the fence) at the debtor's expense. This is because the removal of the infringing object is often a fungible act.

III. Execution of an Obligation to Make a Declaration of Intent (Ishihyōji Gimu no Kyōsei Shikkō, 意思表示義務の強制執行 - Article 174, Civil Execution Act)

This category addresses situations where the debtor is under an obligation to make a specific legal declaration of intent, most commonly encountered in the context of real estate registration (e.g., an obligation to declare intent to apply for a transfer of title). Japanese law has a unique and efficient way of handling this:

• General Principle: Deemed Declaration of Intent (意思表示擬制 - Ishihyōji Gisei):
  • When a judgment ordering the debtor to make a specific declaration of intent becomes final and binding, or when a judicial settlement or mediation record containing such an obligation is finalized, the debtor's declaration of intent is deemed to have been made by operation of law at that very moment (Article 414, paragraph 2, proviso, Civil Code; Article 174, paragraph 1, main text, Civil Execution Act).
  • No Separate Execution Procedure Generally Needed: Because the declaration is legally deemed to have been made, no further compulsory execution procedure is usually necessary to achieve this specific outcome. For example, if a seller is ordered by a final judgment to make the declaration of intent required for transferring property title to the buyer, the buyer can then take that judgment (and a certificate of its finality) directly to the Legal Affairs Bureau and unilaterally apply for the registration of the title transfer, as if the seller had actively cooperated. An execution clause is generally not required for this.
• Exceptions Requiring an Execution Clause:
  There are specific situations where an execution clause is required before the declaration of intent is deemed to have been made:
  1. If the debtor's declaration is contingent upon the arrival of a fact to be proven by the creditor (e.g., "the debtor shall declare intent to transfer title when the creditor pays the remaining purchase price"): A "fact-arrival execution clause" (jijitsu tōrai shikkōbun) must be obtained by the creditor upon proving the fact. The declaration is deemed made when this clause is issued (Article 174, paragraph 1, proviso).
  2. If the debtor's declaration is to be made in exchange for a counter-performance by the creditor (e.g., "the debtor shall declare intent to transfer title in exchange for the creditor delivering certain goods"): The creditor must obtain an execution clause certifying their performance or tender of the counter-performance (Article 174, paragraph 2).
  3. If the debtor's declaration is contingent upon the non-occurrence of a fact to be proven by the debtor (e.g., "the debtor shall declare intent to transfer title if they fail to pay a certain sum by a specified date"): The court clerk must first issue a peremptory notice to the debtor, giving them a period to prove that the fact (e.g., payment) has occurred. If the debtor fails to provide such proof within the period, the execution clause is issued, and the declaration is deemed made (Article 174, paragraph 3).

Conclusion

The Japanese system for enforcing non-monetary claims is characterized by its differentiated approach, employing direct physical compulsion, authorizing third-party performance, leveraging financial pressure through indirect compulsion, or legally deeming an act to have occurred, depending on the nature of the underlying obligation. While generally effective, complexities arise, particularly in highly personal obligations or where the debtor is determined to resist. For those involved in cross-border transactions or disputes with Japanese counterparts, understanding these varied enforcement mechanisms beyond simple monetary recovery is crucial for assessing legal risks and formulating effective strategies to ensure compliance with non-pecuniary judgments and orders.