In the Japanese legal system, obtaining a provisional seizure order (仮差押え - kari-sashiosae) to secure a monetary claim, or a provisional disposition order (仮処分 - karishobun) to preserve a non-monetary right or regulate conduct, is a significant first step for a claimant seeking pre-judgment protection. However, the issuance of such an order by the court is not, in itself, self-executing. To give these powerful judicial orders practical effect—to actually freeze assets or compel/prohibit actions—a distinct subsequent phase known as the "Provisional Remedy Execution Procedure" (保全執行手続 - hozen shikkō tetsuzuki) is required.

This article explains how these provisional remedy orders are put into action in Japan. It details the general principles of their execution and the specific methods employed against different types of assets (real estate, movables, monetary claims) or to enforce various types of interim directives, ensuring that the protection granted by the court is made tangible.

General Principles of Provisional Remedy Execution (Hozen Shikkō)

The execution of provisional remedies is primarily governed by the Civil Provisional Remedies Act (民事保全法 - Minji Hozen Hō), which also incorporates relevant provisions from the Civil Execution Act (民事執行法 - Minji Shikkō Hō) on a mutatis mutandis basis (i.e., with necessary modifications). Several key principles underpin this process:

1. Separate Application/Instruction for Execution (申立てと要件 - mōshitate to yōken): Generally, after a creditor or claimant (petitioner) obtains a provisional remedy order from the court (and has usually provided the court-ordered security deposit - 担保 tanpo), the order does not automatically implement itself. The petitioner must typically take a further step:
   • For some types of execution (e.g., those involving court registrations or service of orders on third-party debtors), they apply to the court that issued the provisional remedy order to carry out the execution acts.
   • For others (e.g., physical seizure of movables), they entrust the execution of the order to an Execution Officer (執行官 - shikkōkan).
2. Maintaining Speed and Secrecy: The execution phase often strives to uphold the elements of rapidity (迅速性 - jinsokusei) and secrecy (密行性 - mikkōsei) that characterized the initial granting of the ex parte provisional order, especially for seizures, to prevent the debtor from frustrating the remedy.
3. Role of the Court and Execution Officers: The execution court (usually the court that issued the provisional remedy order or a district court with jurisdiction over the assets/respondent) supervises the execution process. Execution officers, who are court-affiliated officials, are often tasked with carrying out the physical acts of enforcement.

Executing Provisional Seizure Orders (Kari-sashiosae no Shikkō)

The overarching goal of executing a provisional seizure order is to preserve the debtor's assets to secure the future enforcement of a creditor's monetary claim. The method of execution varies depending on the type of asset targeted:

A. Provisional Seizure of Real Estate (不動産に対する仮差押えの執行)

• Primary Method: Registration (仮差押えの登記 - Kari-sashiosae no Tōki): The most common and effective way to execute a provisional seizure against real estate (land, buildings) is by registering the provisional seizure order in the official real property register (登記簿 - tōkibo) maintained by the Legal Affairs Bureau. The court that issued the provisional seizure order will, upon the creditor's application for execution, commission the relevant Legal Affairs Bureau to make this registration.
• Effect of Registration: This registration publicly records the provisional seizure, making it effective against the debtor and, crucially, against third parties. It prevents the debtor from validly selling, mortgaging, or otherwise disposing of or further encumbering the property in a way that would prejudice the seizing creditor's potential claim. Any subsequent purchaser or mortgagee would take the property subject to the provisional seizure.
• Alternative (Rare for Provisional Seizure): Compulsory Administration Method (強制管理による方法 - Kyōsei Kanri ni yoru Hōhō): While theoretically possible if the aim is to secure income from the real estate under provisional seizure, applying a compulsory administration framework (where an administrator collects rents) is much less common for provisional seizures compared to simply registering the seizure. The focus of provisional seizure is usually on freezing the asset itself.

B. Provisional Seizure of Movables (動産に対する仮差押えの執行)

Execution against tangible personal property (movables) is carried out by an Execution Officer (shikkōkan).

• Methods of Execution:
  1. Taking Physical Possession: The execution officer may take the specified movable property into their physical custody.
  2. Affixing Seals or Official Markings (封印等 - Fūin tō): If removal is impractical or if the items are to remain with the debtor under supervision, the officer may affix official seals or notices to the items, clearly indicating they are under provisional seizure and prohibiting their disposal or use.
• Access to Debtor's Premises: The execution officer has the legal authority to enter the debtor's premises (residence, place of business) to locate and seize the targeted movables.
• Specificity of Movables: Unlike final execution orders against movables which usually require precise identification of items, a provisional seizure order for movables can sometimes be issued without specifying every single item beforehand, especially if the creditor only has general knowledge of the debtor's assets at a particular location. The execution officer then has some discretion (within the bounds of the order and law) to identify and seize appropriate non-exempt assets at that location. This flexibility is balanced by the need to avoid seizing exempt property.

C. Provisional Seizure of Monetary Claims (債権に対する仮差押えの執行)

This involves freezing monetary claims that the main debtor holds against a third party (e.g., bank accounts, accounts receivable).

• Method: Service on the Third-Party Debtor (第三債務者への送達 - Daisan Saimusha e no Sōtatsu): The execution is primarily effected by the court formally serving the provisional seizure order on the third-party debtor (第三債務者 - daisan saimusha) who owes the monetary obligation to the main debtor.
• Effect: Upon receiving the order, the third-party debtor is legally prohibited from making any payment on the seized claim (or the seized portion thereof) to the main debtor. The claim is effectively "frozen" in the hands of the third-party debtor.
• Third-Party Debtor's Statement (陳述の催告 - Chinjutsu no Saikoku): The third-party debtor may be ordered by the court (upon the creditor's request) to provide a statement confirming whether the claim exists, its amount, and any defenses or other claims against it.
• Deposit by Third-Party Debtor: Faced with a provisional seizure, the third-party debtor might have the option or, in some complex situations (e.g., if they also receive other competing claims), even a duty to deposit the seized funds with an official deposit office. This deposit can sometimes take the form of "deemed release money" (minashi kaihōkin) or be related to the main debtor exercising their right to deposit actual "release money" (kaihōkin) to free up the claim from the third-party debtor's perspective.

Executing Provisional Disposition Orders (Karishobun no Shikkō)

The method of executing a provisional disposition order varies significantly based on the nature of the order – whether it pertains to a specific disputed subject matter or aims to establish a temporary state of affairs.

A. Execution of Provisional Dispositions Relating to Disputed Subject Matter (係争物に関する仮処分)

1. Provisional Disposition Prohibiting Disposal (Shobun Kinshi no Karishobun):
   • Real Estate: Similar to provisional seizure of real estate, this is executed by registering the provisional disposition order in the real property register. This prevents the respondent from transferring title or creating new encumbrances that would undermine the claimant's rights to that specific property.
   • Movables or Other Rights: For specific registered movables (like ships or automobiles if the provisional disposition concerns them specifically rather than general assets for a monetary claim), registration in their respective registers might be used. For other movables, an execution officer might affix seals or take them into custody. For intangible rights, notice to relevant third parties or registration authorities (e.g., for IP rights) may be required.
2. Provisional Disposition Prohibiting Transfer of Possession (Sen'yū Iten Kinshi no Karishobun):
   This is a particularly powerful remedy when the claimant seeks to secure or recover possession of specific real or movable property.
   • Execution Officer's Role: An execution officer is central to its execution. The officer will typically:
     • Visit the location of the property (real estate or movable).
     • Formally announce the contents of the court's provisional disposition order.
     • Post official notices in a conspicuous place on the property, clearly stating that the transfer of its possession is prohibited.
   • "Custodial Execution" (占有の保全 - Sen'yū no Hozen): Often, the execution involves the execution officer symbolically taking custody of the property. However, the respondent (the current possessor) may be permitted to continue using the property under the officer's supervision and subject to the prohibition on transferring possession. This is sometimes referred to as "debtor-in-possession type custody" (債務者保管の執行 - saimusha hokan no shikkō).
   • Effect Against Subsequent Possessors: A key effect is that if, despite the executed order (e.g., visible notices), the respondent unlawfully transfers possession to a third party, the claimant who obtained the sen'yū iten kinshi no karishobun can, if they win the main lawsuit for possession against the original respondent, generally enforce that judgment directly against the third party who subsequently took possession (subject to rules about the third party's knowledge or the constructive notice provided by the execution).

B. Execution of Provisional Dispositions to Establish a Temporary State of Affairs (Kari no Chii o Sadameru Karishobun)

These orders often resemble interim injunctions, compelling or prohibiting specific actions. Their execution depends on the nature of the directive:

• Orders to Perform an Act (e.g., temporarily reinstate an employee, continue supplying goods under a contract):
  • The primary "execution" is the service of the court order on the respondent, which creates a legal obligation to comply.
  • If the respondent fails to comply: The claimant's main recourse is to apply to the court for "Indirect Compulsory Execution" (間接強制 - kansetsu kyōsei). Under this, the court can order the non-compliant respondent to pay a monetary penalty to the claimant for each day of continued non-compliance (or for each instance of violation). The aim is to coerce compliance through financial pressure.
• Orders to Refrain from an Act (Prohibitory Orders, e.g., stop patent infringement, cease unfair competitive practices):
  • Service of the order on the respondent makes the prohibition legally binding.
  • If the respondent violates the prohibition: The claimant can similarly seek indirect compulsory execution (penalty payments).
  • In some instances, if the prohibited act involves the creation or distribution of physical objects (e.g., infringing products), the provisional disposition might also include clauses allowing for the seizure or destruction of such objects, potentially carried out by an execution officer as part of the execution of the provisional disposition.

Transition from Provisional Seizure to Full (Final) Execution (Kari-sashiosae kara Hon-shikkō e no Ikō)

It is crucial to understand that a provisional seizure, even when successfully executed, does not automatically satisfy the creditor's claim or convert into a final execution.

• Separate Compulsory Execution Needed: If the creditor obtains a final and binding judgment for their monetary claim in the main lawsuit, they must generally initiate a separate compulsory execution procedure based on that final judgment.
• Benefit of Prior Provisional Seizure: However, the assets that were already subject to a validly executed provisional seizure are preserved for this final execution. The creditor's priority with respect to those assets generally dates back to the time the provisional seizure became effective. When the compulsory execution commences, these already "earmarked" assets can then be formally seized (again, under the final judgment) and proceed to realization (e.g., auction or collection) to satisfy the judgment.

Competition Between Provisional Seizure and Provisional Disposition (Kari-sashiosae to Karishobun no Kyōgō)

Occasionally, the same asset might become the target of both a provisional seizure (by a monetary creditor) and a provisional disposition (e.g., an order prohibiting its disposal, obtained by a claimant with a non-monetary right to that specific asset). The rules for resolving such conflicts can be complex and depend on factors like the nature of each provisional remedy, the timing of their applications and executions, and the specific rights being asserted. Generally, a provisional disposition that specifically restricts rights over a particular asset (like a registered prohibition of disposal) will often take precedence if it was perfected before a general provisional seizure by a monetary creditor against that asset, but each case is determined by the court based on its facts.

Key Considerations for Claimants in Executing Provisional Remedies

• Prompt Execution: After obtaining a provisional remedy order, the claimant should proceed with its execution without undue delay to ensure its effectiveness and to secure their position as early as possible.
• Accuracy and Specificity: Provide clear and accurate information to the court and execution officers regarding the assets to be seized or the conduct to be regulated.
• Costs of Execution: The claimant is typically responsible for the initial costs associated with executing the provisional remedy (e.g., registration fees, execution officer's fees), although these may be recoverable as part of the litigation costs if they win the main lawsuit.
• Monitoring Compliance: Especially for provisional dispositions that order or prohibit certain conduct, the claimant needs to actively monitor the respondent's compliance. If violations occur, the claimant must be prepared to promptly seek further court intervention, such as orders for indirect compulsory execution.

Conclusion

In Japan's civil justice system, securing a provisional seizure or provisional disposition order is a vital step for claimants seeking to protect their rights pre-judgment. However, the true efficacy of these orders lies in their proper and timely execution through the "Provisional Remedy Execution Procedure" (hozen shikkō tetsuzuki).

Whether it involves registering an encumbrance on real estate, an execution officer physically seizing movables, serving a freezing order on a third-party debtor holding a monetary claim, or setting the stage to compel compliance with behavioral injunctions through indirect force, this execution phase is where the court's interim orders are translated into tangible legal effects. A thorough understanding of these diverse execution methods is essential for claimants to ensure that the pre-judgment protection granted by the court is not merely a paper victory but a robust and effective safeguard of their potential final judgment.