Can I Sue for Future Damages or Performance in Japan? Understanding Actions for Future Performance

In the realm of civil litigation, courts typically address disputes concerning rights and obligations that are presently existing or have already matured. However, Japanese civil procedure, under specific conditions, allows for what is known as an "action for future performance" (将来給付の訴え - shōrai kyūfu no uttae). This procedural tool permits a party to seek a judgment compelling performance that is not yet due or for damages that have not yet fully accrued. Understanding the circumstances under which such an action is permissible is crucial for anticipating future legal remedies and for effectively managing ongoing or anticipated disputes.

Article 135 of Japan's Code of Civil Procedure (CCP) provides the statutory basis for these actions, stating: "An action demanding future performance may be maintained only where it is necessary to make such a claim in advance." This "necessity" requirement is the cornerstone for determining the admissibility of such claims and has been extensively interpreted by Japanese courts.

The General Rule: Adjudicating Present Claims

The default stance of any judicial system is to resolve concrete, existing controversies. Courts are generally hesitant to adjudicate purely hypothetical or future disputes for several sound reasons:

• Speculative Nature: Judgments on future obligations can be speculative, as circumstances may change between the time of judgment and the time performance becomes due, potentially rendering the court's decision incorrect or moot.
• Judicial Resources: Addressing claims that may never actually materialize or may resolve themselves without court intervention can be an inefficient use of judicial resources.
• Fairness to the Defendant: Forcing a defendant to litigate an obligation that is not yet due could be premature and unduly burdensome.

Therefore, the primary focus of civil litigation remains on claims that are ripe for adjudication at the time the lawsuit is managed.

The Exception: When is an Action for Future Performance "Necessary"?

Despite the general rule, Article 135 CCP carves out an important exception. The rationale behind allowing actions for future performance, where "necessary," includes:

• Preventing Predictable Future Disputes: If it is highly probable that a defendant will not fulfill an obligation when it matures, allowing an advance claim can prevent a subsequent, separate lawsuit.
• Ensuring Timely Enforcement: For certain obligations, immediate performance upon maturity is critical. An advance judgment allows the plaintiff to secure a basis for prompt enforcement.
• Avoiding Multiplicity of Suits: Particularly for ongoing obligations or damages, allowing a claim for future aspects can avoid the need for repeated litigation.

The core of the inquiry revolves around the interpretation of the phrase "necessary to make such a claim in advance." Japanese courts and legal scholars have generally identified a few key scenarios where this necessity is recognized:

1. Anticipated Default: There is a high probability that the defendant will not voluntarily perform the obligation when it falls due. This is often inferred if the defendant is already disputing the existence or validity of the underlying obligation itself. If a party denies even a current obligation, their willingness to fulfill future related obligations is questionable.
2. Nature of the Performance: The specific nature of the performance demanded is such that it must be rendered immediately upon maturity, and any delay would defeat the purpose of the obligation or cause significant harm to the plaintiff. An example might be a contractual obligation to perform a specific act on a particular date, like delivering a speech or performing at an event.
3. Significant Disadvantage to the Plaintiff: Requiring the plaintiff to wait until the obligation matures to file a suit would impose a significant or undue hardship. This is particularly relevant for claims involving periodic payments, such as ongoing damages from a continuing tort or installment payments under a contract.

Landmark Case Law: The Osaka International Airport Noise Litigation

A pivotal case in shaping the understanding of actions for future performance, especially concerning future damages from continuing torts, is the Supreme Court of Japan's decision of December 16, 1981 (Minshu Vol. 35, No. 10, p. 1369). This case involved residents seeking compensation for current and future damages caused by noise from aircraft operations at Osaka International Airport.

The Supreme Court, while acknowledging the theoretical possibility of claims for future damages, adopted a relatively restrictive stance for situations involving ongoing, complex torts like environmental nuisance. It laid down stringent criteria for such actions to be deemed "necessary":

• Existence and Predictability of Underlying Relationships: The factual and legal relationships that will serve as the basis for the future claim must already be in existence, and their continuation into the future must be predictable.
• Foreseeability of Defendant-Favorable Changes: Any circumstances that could potentially alter the existence or content of the future claim in a manner advantageous to the defendant must be limited to factors that can be clearly foreseen at the time of the judgment.
• Fairness of Burden in Subsequent Enforcement Challenges: It must not be particularly unfair to impose upon the defendant (the tortfeasor) the burden of initiating a "claim objection suit" (seikyū igi no uttae, governed by Article 35 of the Civil Execution Act) and proving any changed circumstances that would negate or reduce their liability under the future performance judgment.

The Court reasoned that a permissible action for future performance should, in its core elements, resemble a claim that is already definite but merely subject to a future time limit or a clear condition. For complex situations like continuing aircraft noise, where the legality of future operations, the level of impact, and the quantum of damages are subject to numerous "fluid" and unpredictable future variables (e.g., changes in flight schedules, aircraft technology, noise abatement measures, or even the plaintiff's own circumstances), the Court found it exceptionally difficult to pre-determine these elements with the requisite certainty. Consequently, it ruled against the plaintiffs' claim for future damages in that specific context.

This restrictive approach has been criticized by some legal scholars who argue that it can be overly rigid. They suggest that courts could, for instance, award future damages for a more limited, foreseeable period or that the burden on plaintiffs to repeatedly sue for damages accruing over time is unfair, especially when the source of harm is ongoing.

Application in Specific Contexts

The principles governing actions for future performance are applied differently depending on the nature of the claim:

1. Future Damages from Unlawful Occupation of Land

A common and generally accepted application of actions for future performance is in cases of unlawful occupation of real property. When a plaintiff sues for eviction and past damages (equivalent to rent), they often also claim future damages (rent-equivalent) for the period from the conclusion of oral arguments until the property is actually vacated.

Such claims typically meet the "necessity" criteria:

• The unlawful occupation is an existing fact, and if the defendant is contesting the eviction, their continued occupation (and thus future damages) is predictable.
• Potential changes in circumstances that might affect the future damages (e.g., the defendant vacates the property, or a legitimate right to occupy is newly acquired) are usually clear-cut.
• It is generally not considered unfair to require the defendant, if they believe their liability for future damages has ceased or changed post-judgment, to raise these new facts in a claim objection suit to prevent or modify enforcement of the future damages award.

If the plaintiff obtains a judgment for future damages, and the defendant subsequently remedies the unlawful occupation but the plaintiff still attempts to execute on the future damages portion of the judgment, the defendant can file a claim objection suit, proving the cessation of unlawful occupation, to halt the enforcement.

2. Future Damages from Other Continuing Torts (e.g., Nuisance, Pollution)

As illustrated by the Osaka International Airport case, Japanese courts exercise greater caution when future damages are claimed for continuing torts involving complex and evolving factual matrices, such as environmental pollution or nuisance. The "fluidity" of future circumstances often makes it difficult to satisfy the Supreme Court's criteria for predictability and fairness.

This cautious stance was reaffirmed by the Supreme Court in its decision of May 29, 2007 (Hanrei Jiho No. 1978, p. 7), concerning noise from the Yokota Air Base. In this case, the Supreme Court overturned a High Court ruling that had allowed a claim for future damages for a limited, short period, finding the conditions for such a claim were not met.

Despite these leading Supreme Court decisions, some legal commentary suggests that in situations where the primary relief sought (e.g., an injunction to stop the polluting activity) is denied, there might still be arguments for allowing future damages for very short, highly predictable periods to ensure some measure of fairness to the aggrieved party, especially if the alternative is frequent, repetitive litigation. The challenge lies in demonstrating that the future harm and its quantification meet the high threshold of predictability.

3. Periodic Payments (Installments, Rent, Support Obligations)

Actions for future periodic payments, such as installments due under a loan agreement, future rent payments under an ongoing lease, or alimony/child support obligations, are often viewed more favorably by the courts, provided the underlying primary obligation is established or undisputed. If a defendant has already defaulted on past payments or has clearly indicated an intention not to fulfill future payment obligations, the "necessity" for an advance claim is more readily apparent. The future amounts are typically fixed or calculable based on existing terms, reducing the speculative nature of the claim.

"Appropriateness" (Tekikaku) vs. a Flexible Assessment of "Necessity"

Some scholarly critique, as noted in legal commentaries, has pointed out that the Supreme Court's occasional framing of the issue in terms of the "appropriateness" (tekikaku) of the claim for future performance can lead to somewhat categorical or rigid outcomes. An alternative academic perspective advocates for a more flexible, case-by-case assessment of the "necessity" requirement, balancing the plaintiff's legitimate need for early judicial intervention and security against the defendant's right to be protected from premature or overly speculative litigation. This approach would focus more on the practicalities and fairness considerations in each specific dispute.

Interplay with Changed Circumstances and Res Judicata

A judgment awarding future performance is necessarily based on the facts, conditions, and predictions as they exist at the close of oral arguments in the trial. What happens if those underlying conditions change significantly thereafter?

For example, if a court awards future rent-equivalent damages for unlawful land occupation based on the prevailing market rental rates at the time of judgment, but those rates later drastically increase or decrease due to unforeseen economic shifts, is the original judgment immutable?

The Supreme Court, in a decision on July 17, 1986 (Minshu Vol. 40, No. 5, p. 941), addressed a similar issue concerning the impact of subsequent, significant changes in land value on a previously determined compensation amount for future periods. The Court suggested that the res judicata of the prior judgment for future damages does not necessarily preclude a subsequent action to modify or claim additional amounts if there has been a substantial and unforeseeable change in the fundamental circumstances upon which the original damage calculation was based. This indicates that judgments for future performance are not entirely shielded from re-examination in the face of profound, later-arising changes, ensuring that the principle of finality does not lead to grossly inequitable results over time. Such situations touch upon the temporal limits of res judicata and, in a broader sense, the principle of change of circumstances (jijō henkō no gensoku).

Practical Considerations for Litigants

When contemplating or facing an action for future performance in Japan, several practical points should be considered:

• Pleading the "Necessity": The party seeking future performance must clearly articulate in their pleadings why it is "necessary to make such a claim in advance." This requires more than a mere assertion; it necessitates showing anticipated default, the time-sensitive nature of the performance, or the significant disadvantage of waiting.
• Evidentiary Support: The plaintiff must be prepared to present evidence supporting the probability of future non-performance or the specific harm that would result from delaying the claim.
• Defining the Scope of Future Relief: Claims for highly remote or speculative future performance are unlikely to succeed. The more defined and predictable the future obligation or damage, the higher the chance of the court entertaining the claim.
• Enforcement and Potential for Future Disputes: A judgment for future performance provides a basis for enforcement when the obligation matures. However, if the defendant believes circumstances have changed negating their liability, they may initiate a claim objection suit, leading to further legal proceedings.

Conclusion

Actions for future performance under Article 135 of the Japanese Code of Civil Procedure represent an important, albeit exceptional, mechanism for addressing anticipated legal issues. While the general preference of the courts is to adjudicate presently matured claims, the "necessity" to claim in advance allows for proactive judicial intervention in appropriate circumstances. The interpretation of this necessity is key, with Japanese courts, particularly the Supreme Court in complex continuing tort cases, exercising caution to avoid overly speculative judgments. Nevertheless, in scenarios involving predictable future obligations, such as installment payments or ongoing damages from clearly defined unlawful acts like land occupation, actions for future performance serve as a valuable tool for ensuring efficient dispute resolution and timely justice. Litigants must carefully assess the specific facts of their case against the established legal criteria and judicial precedents when considering this procedural avenue.