Defining the Battlefield: Scope of Defenses in an "Action for the Grant of a Writ of Execution" in Japan

Japanese Attorney at Law - Bengoshi L.L.

• 9 min read
Defining the Battlefield: Scope of Defenses in an "Action for the Grant of a Writ of Execution" in Japan

In the Japanese system of civil execution, a "writ of execution" (執行文 - shikkōbun) is a crucial document issued by a court clerk. It certifies that a judgment or other "title of obligation" (債務名義 - saimu meigi) is currently enforceable, serving as a necessary precursor to initiating compulsory execution. Generally, obtaining this writ is a straightforward administrative process. However, complications arise when, for instance, the enforceability of the claim depends on a condition that the creditor must prove has been met, or when the original debtor has died and the creditor seeks to enforce against their heirs (successors). If the creditor cannot provide sufficient documentary proof of such conditions or succession to the court clerk, they must resort to a formal lawsuit known as an "action for the grant of a writ of execution" (執行文付与の訴え - shikkōbun fuyo no uttae) under Article 33 of the Civil Execution Act (formerly Article 521 of the Code of Civil Procedure).

A significant procedural question arises in these actions: What issues can be legitimately litigated? Specifically, can the defendant debtor (or their successor) raise substantive defenses concerning the underlying claim itself—such as arguments that the debt has been paid, waived, or offset—as a defense within this action for the grant of a writ? Or are such substantive objections confined to a separate, distinct lawsuit called an "action of objection to claim" (請求異議の訴え - seikyū igi no uttae)? A 1977 Supreme Court of Japan decision provided a clear, albeit debated, answer to this fundamental question.

Background of the Dispute

The plaintiff, Mr. X, had obtained a money judgment on a promissory note against Mr. A. Subsequently, Mr. A passed away. Mr. X then sought to enforce this judgment against Mr. A's heirs, Mr. Y and others (the defendants in the action for the grant of a writ).

To proceed with compulsory execution against the heirs, Mr. X needed a "successor writ of execution" (承継執行文 - shōkei shikkōbun). However, a practical difficulty arose: Mr. A and his heirs, Y, were foreign nationals, making it challenging for Mr. X to provide the court clerk with the standard documentary proof of Y's status as heirs and their respective shares of the inheritance. Consequently, Mr. X initiated an "action for the grant of a writ of execution" against Y and the other heirs.

In response to this action, Y and the other heirs not only contested their legal status as Mr. A's successors and the extent of their inheritance shares but also raised several substantive defenses challenging the validity or current existence of the original debt claim itself. These defenses included allegations that:

  1. Mr. X had waived the debt.
  2. The debt had been extinguished by a set-off against an opposing claim held by Y.
  3. The debt had been partially extinguished by payments made.

The central legal issue before the courts was whether these substantive defenses—which are ordinarily the grounds for an "action of objection to claim" (filed by a debtor to argue that the claim in a title of obligation should not be enforced due to post-judgment events or other substantive reasons)—could be permissibly raised by Y as mere defenses (kōben) within Mr. X's "action for the grant of a writ of execution."

The court of first instance allowed Y to raise these substantive defenses. While it ultimately sided with Mr. X on the issue of heirship and found Y's substantive defenses to be without merit, thus granting Mr. X's request for the writ, it did consider the substantive arguments.

The High Court (appellate court), however, adopted a stricter procedural stance. It held that substantive defenses relating to the extinguishment or non-existence of the debt must be asserted through a separate "action of objection to claim." They could not, the High Court ruled, be raised as mere defenses within an "action for the grant of a writ of execution." Consequently, the High Court did not make any substantive findings on Y's defenses but, concurring with the first instance court on the heirship issue, dismissed Y's appeal. Y and the other heirs then appealed this procedural ruling to the Supreme Court of Japan.

The Supreme Court's Decision

The Supreme Court of Japan dismissed the appeal by Y and the other heirs, thereby affirming the High Court's narrow interpretation of the scope of an "action for the grant of a writ of execution."

The Supreme Court reasoned as follows:

  • Purpose and Scope of the Action: An "action for the grant of a writ of execution," as prescribed by Article 521 of the old Code of Civil Procedure (now Article 33 of the Civil Execution Act), serves a specific, limited function. It is available to a judgment creditor when:
    • The performance of an obligation stated in a title of obligation is contingent upon a condition, and that condition has been fulfilled; or
    • A succession of parties (e.g., through death and inheritance) has occurred concerning the title of obligation.
    • And, critically, the creditor is unable to prove the fulfillment of the condition or the fact of succession with the standard documentary evidence normally required by a court clerk for the issuance of a writ (as per old CCP Articles 518(2) or 519).
      The judgment obtained in such an action then serves in lieu of the court president's order (under old CCP Article 520) that would typically direct the court clerk to issue the specialized writ.
  • Adjudication Strictly Limited: Given this specific purpose, the Supreme Court concluded that the scope of matters to be審理 (adjudicated) in an action for the grant of a writ of execution is strictly limited to determining the existence or non-existence of the fact of condition fulfillment or the fact of succession only.
  • Distinct Remedy for Substantive Objections: The Court also pointed to Article 545 of the old CCP (now Article 35 of the Civil Execution Act), which clearly stipulates that grounds for objecting to the underlying claim itself must be asserted by filing an "action of objection to claim." This provision also mandates that if a debtor has multiple grounds for such an objection, they should all be raised simultaneously within that specific action.
  • Impermissibility of Raising Substantive Defenses in Writ Action: In light of these distinct statutory frameworks and their respective purposes, the Supreme Court held that it is impermissible for a judgment debtor (or their successor) to assert grounds for an objection to the claim merely as a defense (kōben) within an action for the grant of a writ of execution. To allow this would contravene the legislative intent behind establishing these two separate and distinct types of legal actions. (The Court did not explicitly rule out the possibility of raising such issues via a formal counterclaim, but simply as a defense, it was barred).

Therefore, the Supreme Court found no error in the High Court's judgment, which had refused to consider Y's substantive defenses within X's action for the grant of a writ of execution.

Significance and Analysis of the Decision

This 1977 Supreme Court ruling was a landmark decision, being the first time the nation's highest court directly addressed this contentious procedural question. It definitively endorsed the "negative theory," which advocates for a strict limitation on the scope of issues litigable within an action for the grant of a writ of execution. While this case was decided under the old Code of Civil Procedure, its principles are widely considered to be influential and applicable under the current Civil Execution Act.

  • The Academic Divide: "Negative" vs. "Affirmative" Theories
    The PDF commentary provides context on the sharp and long-standing academic debate surrounding this issue:
    • The Negative Theory (adopted by the Supreme Court): This view insists on a strict demarcation between the action for the grant of a writ and the action of objection to claim. It posits that the action for a writ is a specialized "issue litigation" (sōten soshō) solely designed to confirm the occurrence of succession or the fulfillment of a condition, separate from the substantive validity of the underlying claim. According to this theory, even if substantive grounds for objection (like payment or waiver) exist, they do not automatically negate the executory force of the title of obligation; the writ can still be issued, and it is up to the debtor to proactively form a "counter-title" (e.g., a favorable judgment in an action of objection to claim) to stop enforcement. Proponents argue this approach facilitates the swift commencement of execution. Allowing substantive defenses to be raised in the writ action would, they contend, unduly expand its scope, lead to procedural delays, and enable debtors to stall execution without needing to provide security for a stay. If the underlying claim is indeed extinguished, the debtor can always file a counterclaim within the writ action (if permissible) or the court can prompt such a filing. This theory is often associated with the "Burden of Suing Shifting Theory" (teiso sekinin tenkan setsu or kiso sekinin tenkan setsu), which suggests that the action for a writ merely establishes the prima facie justification for executing against a successor, thereby shifting the burden to the successor to file an action of objection to claim if they have substantive defenses.
    • The Affirmative Theory (a minority but influential view): This theory argues that the primary mission of an action for the grant of a writ is to guarantee the actual existence and enforceability of the claim against the successor (or upon condition fulfillment). Therefore, its scope of adjudication should logically extend to the substantive merits of the claim itself. While a court clerk's examination for a simple writ is necessarily limited to formalities, a full-fledged court proceeding like an action for a writ should not be so constrained. To properly determine the permissibility of execution against a successor, the court should examine the existence of the claim against that successor, thus allowing substantive defenses to be raised. Proponents also argue from a practical standpoint that allowing all issues to be resolved in a single proceeding is more efficient and aligns with the goal of a "one-stop resolution" of disputes. Forcing the debtor into a separate action of objection to claim, and potentially requiring them to seek a provisional stay of execution, can lead to procedural complexity and further delays. This view is often linked to the "Rights Ascertainment Theory" (kenri kakunin setsu), which sees the writ issuance process (especially the action for a writ) as confirming the substantive right against the party targeted for execution.
  • Critique of the Supreme Court's Stance (from the PDF Commentary):
    The author of the provided PDF commentary is critical of the Supreme Court's "negative theory" and argues in favor of the "affirmative theory."
    • The commentator views the "Burden of Suing Shifting Theory" as an insufficient post-hoc justification that prioritizes the creditor's existing title without adequately explaining why immediate execution against a successor is warranted, especially given the potential time lag since the original judgment. The real justification, the commentator suggests, lies in the procedural confirmation of the substantive claim against the successor. Since an action for a writ is a formal court proceeding, unlike a clerk's administrative act, it should be capable of providing this substantive confirmation.
    • To limit the scope of a formal "action" (訴え - uttae) solely to confirming the "rationality" of the claim against a successor, as the "Burden of Suing Shifting Theory" implies, significantly diminishes the purpose of employing such a careful judicial procedure.
    • Practically, allowing execution even when substantive defenses might render it unjust (as the negative theory might permit, pending an action of objection to claim) can lead to unfair outcomes and misses an opportunity for comprehensive dispute resolution between the parties. Compelling the debtor to file a counterclaim, rather than allowing a direct defense, is seen as overly formalistic and burdensome. The risk of procedural delay under the affirmative theory is, in the commentator's view, often overstated, and may even be greater under the negative theory if subsequent objection suits and stay applications are considered. Any abusive assertion of defenses can be managed by the court under the principle of good faith or abuse of rights.
    • The commentator draws parallels with recent legislative changes in other areas of law (e.g., bankruptcy law now allowing rights of avoidance to be raised as a defense ) that favor more comprehensive dispute resolution within a single proceeding, advocating for a "one-stop service" approach in execution-related litigation as well. Unless specifically restricted by statute, any substantive defense should arguably be permissible in any execution-related lawsuit.
    • If substantive defenses are allowed in the action for a writ, the commentator suggests that failure to raise them at that stage should generally lead to issue preclusion (失権 - shikken), preventing them from being raised later. This approach is noted to be the prevailing view in German law, which emphasizes resolving disputes comprehensively at the earliest opportunity.
    • The commentator argues that the Supreme Court's strict separation theory has unfortunately led to similar restrictive interpretations in other contexts, such as preventing the cross-assertion of objection grounds between an action of objection to the writ and an action of objection to claim, or in actions for an execution judgment on a foreign judgment, all of which the commentator deems problematic and calls for the Supreme Court's 1977 precedent to be promptly overturned.

Conclusion

The Supreme Court's 1977 decision drew a clear and restrictive line regarding the scope of an "action for the grant of a writ of execution" in Japan. It firmly established that this particular lawsuit is limited to adjudicating only the fulfillment of conditions for execution or the fact of party succession when documentary proof for a standard writ is lacking. Substantive defenses concerning the underlying claim itself, such as payment, waiver, or set-off, cannot be raised as mere defenses within this action; they must be pursued through a separate "action of objection to claim."

While this ruling aimed to maintain procedural clarity and expedite the initial stages of execution based on established titles of obligation, it has been a subject of ongoing academic debate. Critics argue for a more flexible approach that would allow for a more comprehensive resolution of all related issues within a single proceeding, thereby potentially enhancing overall judicial efficiency and fairness to debtors. Nevertheless, this Supreme Court precedent remains the guiding principle in Japanese civil execution practice, dictating a distinct procedural path for debtors wishing to raise substantive challenges to the enforcement of claims.