Navigating Japanese Civil Litigation: What are the Key Procedural Steps and Considerations for Foreign Businesses?

Japanese Attorney at Law - Bengoshi L.L.

• 12 min read

For foreign businesses operating or engaging in commerce in Japan, the prospect of civil litigation can be a daunting one. The Japanese legal system, while highly developed and respected, possesses its own unique procedural nuances and strategic considerations that differ significantly from those in common law jurisdictions like the United States. Understanding these key steps and considerations is crucial for effectively managing legal risks and achieving favorable outcomes. This article provides an in-depth overview of the typical lifecycle of a civil lawsuit in Japan, from the initial consultation with legal counsel through to post-judgment procedures.

I. The Initial Stages: From Consultation to Filing a Complaint

The journey through Japanese civil litigation begins well before any documents are filed with a court. Careful preparation, thorough case assessment, and strategic decision-making during these initial phases can significantly impact the trajectory and ultimate success of a case.

The first and arguably most critical step upon anticipating or facing potential litigation in Japan is to seek consultation with experienced Japanese legal counsel (bengoshi). This initial meeting serves multiple purposes: to provide the attorney with a comprehensive understanding of the factual background of the dispute, to identify and assess available evidence, and to obtain a preliminary view on the merits of the case and potential legal strategies.

To maximize the productivity of this initial consultation, it is highly advisable for the client to prepare thoroughly. This includes compiling a clear and concise summary of the events leading to the dispute, organizing relevant documents in chronological order, and preparing a timeline of key facts. Providing these materials to the attorney in advance allows for a more focused and insightful discussion. During the consultation, counsel will typically inquire about the client's objectives, the nature of the relationship with the opposing party, and any prior attempts at resolution.

B. Case Assessment and Evidence Gathering (証拠収集 - Shōko Shūshū)

Following the initial consultation, a more detailed case assessment is undertaken. A cornerstone of the Japanese civil litigation system is its strong emphasis on documentary evidence. Attorneys will meticulously review all available documents, scrutinizing their authenticity, relevance, and probative value.

The process of evidence gathering (shōko shūshū) in Japan differs from the extensive discovery procedures common in the U.S. While formal discovery mechanisms are limited, attorneys can employ various methods to obtain necessary information. This includes:

  • Publicly Available Records: Obtaining official documents such as real estate registration records (不動産登記事項証明書 - fudōsan tōki jikō shōmeisho), commercial/corporate registration records (商業登記事項証明書 - shōgyō tōki jikō shōmeisho), and family registers (戸籍謄本 - koseki tōhon), where relevant and permissible. These can be crucial for establishing ownership, corporate status, or family relationships.
  • Client-Held Documents: Systematically collecting and organizing all relevant documents in the client's possession. This includes contracts, correspondence (including emails), internal memoranda, financial records, and any other materials pertinent to the dispute.
  • Third-Party Information (Limited): While pre-litigation discovery from third parties is not as broad as in the U.S., there are specific avenues, such as a "request for transmission of a document" (文書送付嘱託 - bunsho sōfu shokutaku) after a lawsuit has commenced, or inquiries through the bar association (弁護士会照会 - bengoshikai shōkai) in certain circumstances.

It's important to note that a critical assessment of evidence is paramount. Attorneys will consider not only evidence supporting their client's claims but also any potentially unfavorable evidence and how it might be addressed.

Before initiating formal litigation, counsel will discuss with the client the most appropriate dispute resolution mechanism. Options typically include:

  • Negotiation (交渉 - Kōshō): Direct discussions with the opposing party, often facilitated by legal counsel, to reach an amicable settlement. This is generally the quickest and most cost-effective method if successful.
  • Mediation (調停 - Chōtei): A process where a neutral third-party mediator assists the disputing parties in reaching a mutually acceptable agreement. In Japan, court-annexed mediation is a common and often effective tool.
  • Litigation (訴訟 - Soshō): Formal court proceedings. This is typically pursued when negotiations or mediation fail, or when a binding judicial determination is necessary.

The choice of procedure will depend on various factors, including the nature of the dispute, the relationship between the parties, the strength of the available evidence, the urgency of the matter, and the client's overall objectives.

D. Commencing Litigation: Filing a Complaint (訴状 - Sojō)

If litigation is deemed the appropriate course, the first formal step is the filing of a complaint (sojō) with the competent court. The complaint is a critical document that sets out the plaintiff's case. Key elements of a Japanese complaint include:

  • Identification of the Parties: Full names and addresses of the plaintiff and defendant.
  • Cause of Action (請求の原因 - Seikyū no Gen'in): A clear and concise statement of the factual and legal grounds upon which the plaintiff's claim is based. This section must allege the essential facts (要件事実 - yōken jinjitsu) necessary to establish the legal claim.
  • Relief Sought (請求の趣旨 - Seikyū no Shushi): A specific statement of what the plaintiff is asking the court to order (e.g., payment of a sum of money, performance of an act, declaration of a right).
  • Specification of the "Object of Claim" (訴訟物 - Soshōbutsu): This refers to the specific legal right or legal relationship that is the subject matter of the lawsuit. Its precise identification is crucial for defining the scope of the litigation and the binding effect (res judicata) of the judgment.
  • Jurisdiction (管轄裁判所 - Kankatsu Saibansho): The complaint must be filed in a court that has jurisdiction over the subject matter and the parties. Rules of jurisdiction are stipulated in the Code of Civil Procedure and other specific laws.
  • Supporting Evidence: While not all evidence is submitted at the complaint stage, key documents supporting the claim are often attached.

The drafting of the sojō requires careful attention to detail and a thorough understanding of Japanese procedural and substantive law.

II. The Pre-Hearing Phase: Service, Pleadings, and Preparatory Proceedings

Once the complaint is filed, the litigation enters a phase characterized by the exchange of written arguments and the preparation for oral hearings.

A. Service of the Complaint and Defendant's Answer (答弁書 - Tōbensho)

After the court accepts the complaint, it will be formally served on the defendant. The defendant is then required to file an answer (tōbensho) within a specified period, typically around 30 days, although extensions are possible. The tōbensho is the defendant's initial written response to the allegations in the complaint. It must address each of the plaintiff's factual allegations by admitting (認める - mitomeru), denying (否認する - hinin suru), or stating a lack of knowledge (不知 - fuchi). The answer will also set out any affirmative defenses the defendant intends to raise. A failure to respond can lead to a default judgment.

B. Exchange of Preparatory Briefs (準備書面 - Junbi Shomen)

Following the defendant's answer, the parties typically engage in an exchange of several rounds of preparatory briefs (junbi shomen). These briefs allow each party to elaborate on their factual and legal arguments, respond to the opposing party's assertions, and introduce supporting documentary evidence.

There are certain court-recommended formatting guidelines for these briefs, concerning aspects like font size (typically 12-point), character count per line, lines per page, and margins, the latter being particularly important for court filing purposes. While strict adherence to all stylistic recommendations isn't always mandated, clarity and readability are paramount. The use of emphasis such as bolding or underlining should be judicious to maintain the brief's professionalism and ensure that truly critical points stand out. Footnotes, while permissible for explanations of technical terms or citations, should not be overused to the point of disrupting the main textual flow. All evidence cited must be clearly referenced.

The submission deadlines for these briefs are usually set by the court, often in consultation with the parties, and adherence to these deadlines is expected.

C. Preparatory Proceedings for Oral Argument (口頭弁論準備手続 - Kōtō Benron Junbi Tetsuzuki)

To ensure efficient oral arguments, the court may conduct preparatory proceedings (kōtō benron junbi tetsuzuki). These are typically less formal sessions, often held in a conference room rather than an open courtroom, involving the judge(s) and the parties' counsel. The primary purpose of these proceedings is to clarify and narrow down the issues in dispute (争点整理 - sōten seiri), organize the evidence to be presented, and establish a schedule for the oral hearings. During these proceedings, parties may be required to further substantiate their claims or defenses and submit additional evidence. The judge plays an active role in guiding the discussion and identifying the key points of contention.

III. The Hearing Phase: Oral Arguments and Examination of Evidence

The hearing phase is where the parties present their cases more formally before the court, primarily through oral arguments and the examination of evidence.

A. Oral Argument Sessions (口頭弁論期日 - Kōtō Benron Kijitsu)

Oral argument sessions (kōtō benron kijitsu) are the formal court hearings. In many Japanese civil cases, particularly those where the facts are complex or heavily disputed, multiple brief hearing sessions may be scheduled over a period of months. Unlike the extensive oral advocacy common in U.S. trials, Japanese oral arguments are often more focused on the formal presentation and confirmation of the contents of the written briefs already submitted. Counsel will typically state that they "present as per the preparatory brief dated X" (陳述する - chinjutsu suru).

The judge may ask clarifying questions to counsel. If new evidence is submitted, its original will be presented for examination. At the end of each session, the court will typically schedule the next hearing date, often about a month later, with deadlines for the submission of any further briefs or evidence in the interim. It's customary for counsel to exchange business cards after the first hearing if they haven't met before, though this is done outside the courtroom.

B. Examination of Evidence (証拠調べ - Shōko Shirabe)

The examination of evidence (shōko shirabe) is a crucial part of the hearing phase.

  • Documentary Evidence (書証 - Shoshō): As mentioned, documentary evidence is highly valued. During the hearings, original documents previously submitted as copies are formally "examined" by the court. This involves the judge and the opposing counsel reviewing the originals. Each piece of evidence should be clearly marked with an exhibit number.
  • Witness Examination (証人尋問 - Shōnin Jinmon): If witness testimony is necessary, witness examinations will be conducted. This involves:
    • Direct Examination (主尋問 - Shu Jinmon): The party calling the witness questions them to elicit testimony supporting their case.
    • Cross-Examination (反対尋問 - Hantai Jinmon): The opposing party questions the witness to challenge their testimony or elicit favorable information.
    • Re-Direct and Re-Cross (再主尋問・再反対尋問): Further rounds of questioning may occur.
    • Supplementary Questions by the Judge (補充尋問 - Hojū Jinmon): The judge may also ask questions to clarify points or explore areas of interest.
    • Witness Statements (陳述書 - Chinjutsusho): It is common practice for witnesses to prepare written statements (chinjutsusho) in advance, outlining their expected testimony. These statements are submitted to the court and opposing party before the hearing and often form the basis for the oral examination. The witness will typically confirm the contents of their chinjutsusho at the beginning of their testimony.
  • Preparation for Witness Examination: Thorough preparation of witnesses is essential. This includes reviewing the facts, anticipating questions from opposing counsel and the judge, and conducting mock examinations (rehearsals). It is important to advise witnesses to answer truthfully and directly, and to remain calm under cross-examination.
  • Expert Witnesses (鑑定人 - Kanteinin): In cases involving technical or specialized issues, expert witnesses may be appointed by the court or called by the parties to provide opinions.

The timing for submitting "impeachment evidence" (弾劾証拠 - dangai shōko), intended to discredit a witness's testimony, is a strategic consideration. While submitting it too early might allow the opposing party to prepare a rebuttal, presenting it on the day of the examination itself might be permitted by the court if deemed relevant and not an unfair surprise.

IV. Resolution and Post-Judgment Procedures

After the conclusion of the hearings and the examination of all evidence, the case moves towards resolution, either through a negotiated settlement or a court judgment.

A. Settlement Discussions (和解 - Wakai)

The Japanese legal system places a strong emphasis on amicable dispute resolution, and judges frequently encourage parties to explore settlement at various stages of the litigation. Opportunities for settlement (wakai) often arise:

  • After the first oral argument session.
  • After the main issues have been clarified through the exchange of briefs and preparatory proceedings, but before extensive witness examination.
  • After the examination of witnesses but before the judgment.
  • Even on appeal.

Judicial settlement conferences are often conducted in an informal setting, with the judge meeting separately with each party's counsel to discuss potential terms (a form of shuttle diplomacy). When negotiating a settlement, it is common for initial proposals to be somewhat ambitious, with the court facilitating a compromise. A common strategy involves making a reasonable initial offer, followed by one significant move towards compromise, and then fine-tuning the final details.

If a settlement is reached, its terms are recorded in a court settlement record (和解調書 - wakai chōsho), which has the same binding force as a final and conclusive judgment and is enforceable. Key terms in a settlement agreement often include the amount of any payment, payment terms (lump sum or installments), confidentiality clauses, and a "full and final settlement" clause (清算条項 - seisan jōkō), which may specify whether it pertains only to the litigated matter ("本件に関し" - honken ni kanshi) or covers all disputes between the parties. Provisions for accelerated payment in case of default (期限の利益喪失条項 - kigen no rieki sōshitsu jōkō) are also common.

B. Judgment (判決 - Hanketsu)

If the parties are unable to reach a settlement, the court will render a judgment (hanketsu) based on the evidence and arguments presented. The judgment will typically be announced on a designated judgment date. Parties are not usually required to attend the pronouncement; counsel can obtain the main points of the judgment (主文 - shubun) by telephone from the court clerk after the scheduled time. The full written judgment will be issued subsequently.

A judgment may include a declaration of provisional execution (仮執行宣言 - kari shikkō sengen), which allows the winning party to commence enforcement proceedings even if the losing party appeals, though the losing party can often seek a stay of execution by providing security.

C. Post-Judgment Actions

Following the judgment, several actions may be necessary:

  • Enforcement (強制執行 - Kyōsei Shikkō): If the losing party fails to comply with the judgment voluntarily, the winning party may initiate compulsory enforcement proceedings. This requires obtaining necessary documents like a certificate of service of the judgment.
  • Appeal (控訴 - Kōso / 上告 - Jōkoku): A party dissatisfied with the judgment of a district court (or summary court) may file an appeal (kōso) to a high court, generally within two weeks of receiving the judgment. Further appeal (jōkoku) to the Supreme Court is possible but is typically limited to significant errors of law or constitutional issues. The decision to appeal requires careful consideration of the grounds for appeal and the likelihood of success.
  • Record Keeping and Return of Originals: After the case concludes (whether by judgment or settlement), legal counsel will manage the case records. Original documents provided by the client should be returned. Attorneys in Japan have a legal obligation to preserve case files for a certain period (e.g., three years after case conclusion under the Civil Code for some matters, though many firms retain them longer).

V. Unique Aspects of Japanese Civil Litigation for Foreign Businesses to Note

While sharing fundamental principles with other developed legal systems, Japanese civil litigation has characteristics that foreign businesses, particularly those accustomed to the U.S. system, should be aware of:

  • Emphasis on Documentary Evidence: As repeatedly stressed, written documents carry significant weight. Oral testimony, while important, is often used to supplement or clarify documentary evidence rather than serving as the primary basis for factual findings.
  • Limited Discovery: Compared to the extensive pre-trial discovery processes (e.g., depositions, interrogatories, requests for production) in the United States, Japanese civil procedure offers more limited formal mechanisms for compelling information from the opposing party or third parties before or during the early stages of litigation. Evidence gathering relies more on voluntary disclosure, public records, and specific court-ordered requests for documents in the context of ongoing proceedings.
  • Active Role of the Judge in Case Management: Japanese judges tend to play a more active role in managing the proceedings, guiding discussions in preparatory proceedings, clarifying issues, and actively encouraging settlement.
  • The "Judicial Commissioner" (司法委員 - Shihō Iin) and "Expert Commissioner" (専門委員 - Senmon Iin) Systems: In certain specialized cases, such as complex commercial disputes, intellectual property matters, or construction disputes, courts may appoint judicial commissioners or expert commissioners. These are typically individuals with specialized knowledge or experience in the relevant field (e.g., academics, practitioners, former judges).
    • Judicial Commissioners (Shihō Iin): These commissioners can assist the court in understanding technical issues, facilitate settlement discussions, and may even be involved in the evidence-gathering process or the questioning of witnesses. Their role is to support the judge in reaching an informed decision.
    • Expert Commissioners (Senmon Iin): These individuals are appointed for their specific expertise to provide explanations on highly technical or specialized matters that are central to the dispute. They can help the court understand complex evidence and may submit written opinions or explain them orally in court. While they do not decide the case, their input can be highly influential.
      This system aims to enhance the quality and efficiency of judicial decision-making in complex litigation by ensuring that judges have access to specialized knowledge.
  • Prevalence of Settlement Culture: There is a strong cultural and systemic inclination towards resolving disputes by mutual agreement rather than through a full trial and judgment. Judges actively promote settlement, and a significant percentage of civil cases in Japan are resolved this way. This can be advantageous in terms of time, cost, and preserving business relationships, but it also means that parties should be prepared for and strategically approach settlement negotiations throughout the litigation process.
  • Cost Allocation: While the "loser pays" principle for court costs exists, the recovery of attorneys' fees is generally limited. The prevailing party is typically not able to recover the full amount of their actual attorneys' fees from the losing party as part of the judgment, unlike in some other jurisdictions. This is an important factor to consider when assessing the economics of litigation in Japan.

Conclusion

Navigating civil litigation in Japan requires a nuanced understanding of its procedural framework, evidentiary rules, and the prevailing legal culture. For foreign businesses, engaging experienced Japanese legal counsel at the earliest possible stage is paramount. Thorough preparation, a deep appreciation for the emphasis on documentary evidence, strategic engagement in preparatory proceedings, and an openness to settlement discussions are key elements for successfully managing disputes and protecting one's interests within the Japanese legal system. While the path may present unique challenges, a well-informed and proactive approach can lead to effective and efficient resolutions.