Filing Counterclaims (Widerklage) in Japanese Litigation: A Guide to Court Fee Calculation

When a defendant in a Japanese civil lawsuit has their own claim against the plaintiff, they don't necessarily need to initiate entirely separate legal proceedings. Instead, they can often assert this claim within the existing lawsuit by filing a "counterclaim" (反訴 - hanso). This procedural tool allows for the efficient resolution of multiple disputes between the same parties in a single action. However, filing a counterclaim has direct implications for court filing fees, and the calculation of its "value of suit" (訴額 - so'gaku) follows specific rules, including a notable exception for counterclaims that share the "same object" as the plaintiff's main claim.

Understanding Counterclaims in Japanese Civil Procedure

A counterclaim, as defined in Japanese civil procedure (see, e.g., CCP Art. 146), is a new and distinct claim brought by the defendant against the plaintiff within the ongoing litigation initiated by the plaintiff. To be valid, a counterclaim must generally meet standard requirements for any lawsuit, plus specific conditions for being joined with the main action, such as a sufficient connection to the main claim or the defenses against it, and the court having jurisdiction over the counterclaim.

Impact of Counterclaims on Court Jurisdiction

Generally, the "value of suit" (so'gaku) of a counterclaim does not aggregate with the so'gaku of the plaintiff's main claim for the purpose of determining the initial subject-matter jurisdiction over the main suit. This principle, rooted in historical legislative choices (Meiji 23 Code of Civil Procedure, Art. 4(2)), aims to prevent a defendant from unilaterally forcing a case that properly started in a lower court (like a Summary Court) into a higher court (like a District Court) simply by filing a high-value counterclaim.

However, there is a critical exception:

• Transfer from Summary Court to District Court (CCP Art. 274(1)): If the plaintiff's main action is pending in a Summary Court (which handles claims up to a certain monetary threshold, currently ¥1.4 million), and the defendant files a counterclaim whose own so'gaku falls within the jurisdiction of a District Court, the Summary Court must transfer both the main action and the counterclaim to the competent District Court if the original plaintiff (now the counter-defendant) makes a request for such a transfer. This provision ensures that all related matters, once a high-value counterclaim is introduced, are handled by the court with appropriate jurisdiction, while still respecting the plaintiff's initial choice of forum for their smaller claim unless they agree to the transfer.

If multiple claims are joined within the counterclaim itself, their individual so'gaku values are aggregated to determine the total so'gaku of the counterclaim. If this aggregated counterclaim so'gaku exceeds the Summary Court's jurisdictional limit, the same transfer rule under CCP Art. 274(1) can be invoked by the original plaintiff. This also applies to "preparatory counterclaims" (予備的反訴 - yobiteki hanso), where the so'gaku of the preparatory claim is assessed at the time the counterclaim is filed. However, if claims joined within a counterclaim are deemed "economically unitary," their values are not aggregated for the counterclaim's so'gaku; the highest single value among them prevails.

Conversely, if the main action is already in a District Court, that court can generally adjudicate a counterclaim even if its so'gaku would normally place it within Summary Court jurisdiction. An exception exists if the counterclaim falls under the exclusive jurisdiction of a Summary Court; in such a rare case, the counterclaim is improper and should be severed and transferred to the Summary Court rather than dismissed. Thus, the jurisdictional so'gaku of a counterclaim is primarily a practical concern when the main action is initiated in a Summary Court.

Calculating Court Fees for Counterclaims: The "Value of Suit" (So'gaku)

The primary focus for litigants is often the court filing fees associated with a counterclaim. The Civil Procedure Costs Act (民事訴訟費用等に関する法律 - Minji Soshō Hiyō tō ni Kansuru Hōritsu) sets out the rules.

Standard Fee Calculation for Counterclaims

As a general rule, a counterclaim is treated like a new, independent claim for fee purposes. Its so'gaku is determined based on the nature and value of the relief sought by the defendant, and the court fee is then calculated using the same progressive, tiered scale that applies to an original complaint (as per Civil Procedure Costs Act, Appended Table 1, Item 6).

The Crucial Exception: The "Difference Principle" for Counterclaims with the "Same Object"

The most significant rule affecting counterclaim fees is the exception found in the proviso to Item 6 of the Appended Table 1 of the Civil Procedure Costs Act. This proviso stipulates that if a counterclaim "shares the same object as the main suit" (本訴とその目的を同じくする反訴 - honso to sono mokuteki o onajiku suru hanso), a special calculation method known as the "difference principle" (差額主義 - sagaku shugi) applies.

Under this principle, the fee payable for such a counterclaim is:
(Fee calculated for the counterclaim as if it were a standalone claim) - (Fee already paid by the plaintiff for the main suit)

If this calculation results in zero or a negative number (i.e., the fee for the main suit is equal to or greater than the standalone fee for the counterclaim), then no additional fee is due for the counterclaim.

Defining the "Same Object" (目的 - Mokuteki) for Fee Purposes:
It is critical to understand that the term "object" (目的) in this context of the Civil Procedure Costs Act is not synonymous with the "object of litigation" (訴訟物 - soshōbutsu) as understood in general procedural law. For a counterclaim to be procedurally valid, it must generally assert a different object of litigation from the plaintiff's main claim to avoid being a mere defense or a duplicative assertion.

The "sameness of object" for fee calculation purposes is determined based on economic considerations. It applies when, despite being legally distinct claims, the plaintiff's main claim and the defendant's counterclaim are so closely intertwined that they essentially concern the same underlying economic dispute or the same "thing" (which can be a physical object, a sum of money, or a specific legal right or relationship). Often, these claims are mutually exclusive, meaning the success of one party's claim necessarily implies the failure of the other's. The rationale is to avoid making the defendant pay a full separate fee for litigating what is, in economic substance, the flip side of the plaintiff's initial claim.

Examples of Counterclaims with the "Same Object" (Difference Principle Applies):
The source material provides several examples where this principle is typically applied:

• Plaintiff claims delivery of an item based on possessory rights; defendant counterclaims for return of the same item based on ownership title.
• Plaintiff sues for eviction from a leased house; defendant counterclaims for a declaration that the lease agreement continues to be valid for the future.
• Plaintiff seeks a declaration that their termination of a lease was valid (or that the lease continues); defendant counterclaims for eviction.
• Plaintiff files for a declaration of non-existence of a debt; defendant counterclaims for the payment of that very debt.
• Plaintiff seeks a declaration that execution based on a notarial deed is impermissible (e.g., due to lack of capacity when the deed was created); defendant counterclaims for unjust enrichment for the money originally disbursed under the loan evidenced by that deed.
• Plaintiff (a third party) objects to the execution levied on their car; defendant (executing creditor) counterclaims for an order that the plaintiff deliver the car to the execution officer.
• Plaintiff seeks confirmation of a sales contract's validity (or the invalidity of its cancellation); defendant counterclaims for the return of the goods sold under that contract.
• Plaintiff (insured) claims an insurance payout for a stolen car; defendant (insurer) counterclaims for repayment of a loan they had advanced to the plaintiff in connection with this incident.

Examples of Counterclaims with "Different Objects" (Separate Fee Calculation Applies):
Conversely, if the counterclaim, even if related to the same general transaction or incident, pursues a distinct economic interest that is not merely the negative image of the plaintiff's claim, the difference principle does not apply, and the counterclaim incurs its own full fee. Examples from the source material include:

• Plaintiff sues for unpaid rent; defendant counterclaims for damages to their furniture caused by dampness in the leased property.
• Plaintiff sues for the return of a down payment made under a construction contract; defendant counterclaims for the payment of the remaining balance of the construction price.
• Both plaintiff and defendant file claims against each other for damages arising from the same traffic accident (these are essentially cross-claims for distinct damages).
• Plaintiff sues for the return of an item; defendant counterclaims for payment of repair costs incurred for that item.

Fees for Preparatory Counterclaims (予備的反訴)

For preparatory counterclaims (where the defendant makes a claim conditional on, for example, their main defense failing), the author of the source text suggests that, ideally, court fees should only be assessed if the condition for the counterclaim is met and the court actually proceeds to adjudicate it. However, the Civil Procedure Costs Act does not explicitly provide for such conditional fee assessment, leading to potential practical issues regarding when the fee becomes due.

Counterclaims Filed at the Appeal Stage (控訴審)

If a counterclaim is filed for the first time at the appeal stage:

• The standard filing fee is 1.5 times the fee that would have been payable if it had been filed in the first instance.
• If this appellate counterclaim has the "same object" as the main suit, the difference principle is adapted: the fee is (1.5 x Standalone First-Instance Fee for the Counterclaim) - (Plaintiff's Appeal Fee for the Main Suit).
• A special rule applies if the first-instance court did not rule on the merits of the plaintiff's main claim (e.g., dismissed it for procedural reasons). If a counterclaim is then filed on appeal, only the standard first-instance fee (not 1.5 times) is charged for the counterclaim.

Conclusion

Filing a counterclaim in Japanese litigation offers defendants a valuable opportunity to assert their own claims against the plaintiff efficiently within the same legal proceeding. From a court fee perspective, counterclaims are generally treated as new actions requiring their own fee based on their "value of suit." However, the crucial "difference principle" provides significant fee relief when the counterclaim shares the "same economic object" as the plaintiff's main claim, ensuring that parties are not unduly burdened by fees for litigating what amounts to two sides of the same core dispute. Litigants and their counsel must carefully analyze the economic relationship between the main claim and any potential counterclaim to accurately anticipate court costs and make informed strategic decisions.