Beyond the Judgment: Why is an "Execution Clause" (Shikkoubun) Necessary for Enforcement in Japan?

In Japan, obtaining a favorable judgment or another "title of obligation" (saimu meigi) is a critical step towards realizing a claim. However, in many instances, this title alone does not automatically unlock the door to compulsory enforcement. An additional, often indispensable, procedural device known as an "execution clause" (shikkōbun, 執行文) is typically required. This article delves into what an execution clause is, why it's a cornerstone of the Japanese civil execution system, its various types, and the process for obtaining one.

The "Why": The Purpose of an Execution Clause (Shikkōbun)

The primary purpose of an execution clause is to bridge the potential gap between the static nature of a title of obligation (which reflects the legal situation at the time of its creation) and the dynamic reality that may exist when enforcement is actually sought. It serves as an official certification by a designated authority (a court clerk or a notary) attesting to the current enforceability of the title of obligation against a specific debtor in favor of a specific creditor.

Several key rationales underpin the necessity of the shikkōbun system:

1. Verifying Present Enforceability: A title of obligation might have been issued some time ago. Since then, circumstances could have changed. For instance, the debt might have been partially paid, or the right itself might have been transferred. The execution clause confirms that the right to enforce is currently active.
2. Confirming Fulfillment of Conditions: Some titles of obligation are conditional, meaning their enforceability depends on the occurrence of a specific event or the fulfillment of a certain condition (e.g., a debtor defaulting on an installment payment which then accelerates the entire debt). The execution clause, in such cases, certifies that these prerequisites have been met.
3. Identifying Parties for Execution: The original parties named in a title of obligation might have changed due to events like inheritance, corporate mergers, or assignment of the claim. An execution clause (specifically a "successor execution clause") is necessary to identify the current individuals or entities by or against whom execution can be levied.
4. Streamlining the Execution Process for Executing Agencies: By having a court clerk or notary perform the checks for current enforceability, fulfillment of conditions, and changes in parties, the system avoids burdening the actual executing agencies (such as execution courts or court execution officers) with these, often complex, substantive inquiries. This allows the executing agencies to proceed more swiftly and efficiently, focusing on the mechanical aspects of enforcement once a valid execution-claused title is presented.

Essentially, the execution clause acts as a final "green light" from a certifying authority, ensuring that the power of the state is only deployed for compulsory execution when all current conditions for such action are verifiably met.

When is an Execution Clause Required (and When is it Not)?

As a general rule, an execution clause must be appended to a title of obligation before a creditor can initiate compulsory execution in Japan (Article 25, Civil Execution Act). However, the law recognizes that for certain types of titles of obligation, particularly those where the need for swift enforcement is high or the risk of changed circumstances is minimal, this requirement can be dispensed with.

Key exceptions where an execution clause is not needed include:

• Final judgments in small claims litigation (少額訴訟の確定判決 - shōgaku soshō no kakutei hanketsu). Small claims proceedings are designed for expedited resolution of minor disputes, and this extends to their enforcement.
• Judgments with a declaration of provisional execution in small claims litigation (少額訴訟の仮執行宣言付判決 - shōgaku soshō no kari-shikkō sengen-tsuki hanketsu).
• Payment orders with a declaration of provisional execution (仮執行宣言付支払督促 - kari-shikkō sengen-tsuki shiharai tokusoku). The shiharai tokusoku is a summary procedure for monetary claims, and its enforcement is also streamlined.
• Provisional remedy orders (保全命令 - hozen meirei), such as orders for provisional attachment (kari-sashiosae) or provisional disposition (kari-shobun). These are inherently urgent measures, and requiring an additional execution clause would defeat their purpose (Article 43, paragraph 1, Civil Provisional Remedies Act, by reverse implication).

For most other standard titles of obligation, such as ordinary final judgments, notarized deeds of execution, and judicial settlement records, an execution clause is a mandatory prerequisite for initiating compulsory execution.

Types of Execution Clauses: Tailoring Certification to Circumstances

Japanese law provides for several types of execution clauses, each designed to address specific circumstances that might affect the enforceability of a title of obligation:

1. Simple Execution Clause (単純執行文 - Tanjun Shikkōbun):
   This is the most basic and common type. It simply certifies that the title of obligation, as it appears, is presently enforceable by the named creditor against the named debtor, without any special conditions or changes in parties.
2. Execution Clause for Arrival of a Fact / Fulfillment of a Condition (事実到来執行文 / 条件成就執行文 - Jijitsu Tōrai Shikkōbun / Jōken Jōju Shikkōbun):
   This type is required when the enforceability of the claim in the title of obligation is contingent upon "the arrival of a fact to be proven by the creditor" (Article 27, paragraph 1, Civil Execution Act). This typically involves situations where a condition precedent must be fulfilled or an uncertain time limit must arrive before the obligation becomes executable.
   For example, if a settlement agreement (which forms a title of obligation) stipulates that a lump sum becomes payable only if the debtor defaults on specified installment payments, the creditor must prove such a default to obtain this type of execution clause. The creditor needs to submit documentary evidence to the issuing authority (court clerk or notary) demonstrating that the fact has indeed occurred or the condition has been fulfilled. A judicial precedent, a Supreme Court decision dated December 15, 1966, affirmed that if a settlement includes an installment payment plan and a clause for losing the benefit of time upon a single default, the creditor can obtain a simple execution clause to enforce the remaining balance upon such default without needing to prove the default as a "fact-arrival" under Article 27, as the burden of proving payment rests with the debtor.
3. Successor Execution Clause (承継執行文 - Shōkei Shikkōbun):
   This is necessary when there has been a change in the creditor or debtor after the title of obligation was created, due to succession (承継 - shōkei). Succession can be universal (e.g., through inheritance or corporate merger, where the successor takes over all rights and obligations) or singular (e.g., through an assignment of the claim).
   The successor execution clause allows the execution to be carried out by the new creditor or against the new debtor (Article 27, paragraph 2, Civil Execution Act). The party seeking this clause must provide documentary proof of the succession (e.g., a certified copy of the family register for inheritance, corporate registration for a merger, or a notice of assignment of claim).
4. Execution Clause Without Specifying the Debtor (債務者不特定執行文 - Saimusha Futokutei Shikkōbun):
   This is a more specialized and less common type of successor execution clause, introduced by an amendment in 2003 to address specific forms of execution obstruction, particularly in cases involving the eviction from real property (Article 27, paragraph 3, Civil Execution Act). It can be issued for a title of obligation ordering the delivery or vacating of real property if there are special circumstances making it difficult to identify the current occupant (debtor), and a provisional disposition prohibiting the transfer of possession has already been executed.
   This clause is aimed at situations where, for example, occupants are frequently changed or their identities are deliberately obscured to frustrate enforcement. While the execution clause itself may not specify the debtor, the court execution officer must still identify the actual person in possession at the time of executing the eviction.

The Issuance Procedure for an Execution Clause

The process for obtaining an execution clause is clearly defined:

• Issuing Authorities (Article 26, paragraph 1, Civil Execution Act):
  • For most titles of obligation created by courts (e.g., judgments, judicial settlements, mediation records), the execution clause is issued by a court clerk (saibansho shokikan) of the court where the record of the case is held.
  • For a notarized deed of execution (shikkō shōsho), the execution clause is issued by the notary (kōshōnin) who prepared the original deed or their successor, as the notary retains the original document.
• Application by the Creditor:
  The creditor, or their legal representative, must formally apply to the appropriate issuing authority. The application generally needs to be in writing and must specify the title of obligation (Rule 16, paragraph 1, Rules of Civil Execution). If the title of obligation is one that only becomes effective upon being finalized (e.g., a judgment that is not yet final and binding but for which a declaration of provisional execution is sought, or a judgment that needs a certificate of finality), a certificate of finality (確定証明書 - kakutei shōmeisho) issued by the court clerk must usually be attached (Rule 16, paragraph 2, Rules of Civil Execution).
• Method of Issuance (Article 26, paragraph 2, Civil Execution Act):
  If the issuing authority finds that the requirements are met, the execution clause is granted. It is physically endorsed at the end of the authenticated copy (seihon, 正本) of the title of obligation that the creditor submits. This endorsed authenticated copy is then known as an "execution-claused authenticated copy" (執行文付正本 - shikkōbun-tsuki seihon) or, more commonly, the "execution original" (執行正本 - shikkō seihon). The issuing authority also makes a note on the original title of obligation (or its record) that an execution clause has been granted (Rule 18, Rules of Civil Execution). If the application is denied, the authority will provide reasons for the refusal.
• Multiple or Re-issued Clauses (Article 28, paragraph 1, Civil Execution Act):
  A creditor may need to levy execution on multiple assets of the debtor simultaneously in different locations or through different procedures. In such cases, they can apply for several authenticated copies of the title of obligation, each with an execution clause (数通付与 - sūtsū fuyo).
  Furthermore, if an execution original is lost or destroyed, the creditor can apply for it to be re-issued (再度付与 - saido fuyo).

Requirements for Granting an Execution Clause

The issuing authority will examine whether certain general and, if applicable, special requirements are met:

• General Requirements (for all types of execution clauses):
  1. Existence of a Valid Title of Obligation: There must be a title of obligation that is, by its nature, capable of execution (e.g., it must concern a claim that can be compulsorily enforced).
  2. Current Executory Power: The executory power of the title of obligation must be presently effective. It should not have been extinguished (e.g., by full payment of the debt, a subsequent agreement, or a successful action opposing execution) or suspended (e.g., by a court order). While the issuing authority can often verify some aspects from records (like a judgment being overturned), they may not always be aware of all supervening events. If an execution clause is issued despite the executory power having ceased, the debtor has remedies to challenge it.
• Special Requirements (for specific types of execution clauses):
  1. For a Fact-Arrival/Condition Fulfillment Execution Clause (Article 27, paragraph 1): The creditor must submit documentary proof to the issuing authority that the specified fact has occurred or the condition has been fulfilled. For instance, if a settlement requires payment upon the debtor selling a particular property, the creditor would need to provide evidence of that sale.
  2. For a Successor Execution Clause (Article 27, paragraph 2): The succession of rights or obligations must either be evident to the issuing authority from official records (e.g., a clear record of inheritance in the family register) or proven by the creditor through documents (e.g., certificate of corporate merger, deed of assignment).
  3. For an Execution Clause Without Specifying the Debtor (Article 27, paragraph 3): The creditor must prove the special circumstances making identification difficult and the prior execution of a relevant provisional disposition.

Challenging the Grant or Refusal of an Execution Clause

The decision to grant or refuse an execution clause is not unchallengeable. If a creditor's application for an execution clause is refused, or if a debtor believes an execution clause was improperly granted (e.g., a required condition was not actually met, or the underlying debt was already paid), they can raise an "objection concerning the grant of an execution clause, etc." (執行文付与等に関する異議 - shikkōbun fuyo tō ni kansuru igi) to the court supervising the court clerk or notary (Article 32, Civil Execution Act). For more complex disputes, particularly concerning the fulfillment of conditions for fact-arrival clauses or issues of succession for successor clauses, parties may need to resort to specific lawsuits such as an "action seeking the grant of an execution clause" (執行文付与の訴え - shikkōbun fuyo no uttae) by the creditor, or an "action opposing the grant of an execution clause" (執行文付与に対する異議の訴え - shikkōbun fuyo ni taisuru igi no uttae) by the debtor (Articles 33 and 34, Civil Execution Act). These specialized actions provide for a more thorough judicial examination of the contested issues.

Conclusion

The execution clause (shikkōbun) is a seemingly small, yet profoundly significant, element in the machinery of Japanese civil execution. It acts as a crucial checkpoint, ensuring that the formidable power of state-backed compulsory enforcement is exercised only when the legal grounds are current, clear, and correctly applied to the parties involved. It embodies a balance between the creditor's right to effective remedies and the procedural safeguards necessary to protect debtors from unwarranted or outdated enforcement actions. For anyone involved in or anticipating civil execution in Japan, understanding the role and requirements of the execution clause is essential for navigating the process effectively.