"Obstruction of Proof" in Japan: What Are the Consequences of Destroying or Hiding Evidence?

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

The integrity of the judicial process hinges on the availability and truthful presentation of evidence. When a party to a lawsuit actively destroys, conceals, or alters evidence, or otherwise unjustifiably hinders an opponent's ability to access relevant information, it strikes at the heart of fair dispute resolution. In Japanese civil litigation, such conduct is broadly termed "obstruction of proof" (証明妨害 - shōmei bōgai). While Japan may not have the same codified, extensive "spoliation of evidence" doctrines as found in jurisdictions like the United States, its legal system nevertheless provides mechanisms to address and sanction such behavior.

This article explores what constitutes obstruction of proof in Japanese civil procedure, the legal consequences parties may face, and practical considerations for international businesses.

I. Understanding Obstruction of Proof (Shōmei Bōgai) in Japanese Civil Procedure

A. Defining Shōmei Bōgai

Obstruction of proof encompasses a range of deliberate acts or omissions by a party (or those acting on their behalf) that unfairly impede an opposing party's ability to prove their case or ascertain the truth. This can include:

  • Physical destruction or concealment of relevant documents or objects.
  • Alteration or falsification of evidence.
  • Willful failure to preserve crucial evidence when litigation is pending or reasonably foreseeable.
  • Unjustified refusal to comply with legitimate disclosure requests or court orders for evidence production.
  • Providing false or deliberately misleading information related to evidence.
  • Witness tampering or subornation of perjury (though the latter also involves criminal implications).

B. The Underlying Principle: Duty of Good Faith and Fair Play

The prohibition against obstruction of proof is deeply connected to the fundamental principle enshrined in Article 2 of Japan's Code of Civil Procedure (CCP) (民事訴訟法 - Minji Soshō Hō), which requires parties to conduct litigation sincerely and in good faith (信義誠実の原則 - shingi seijitsu no gensoku). Actions that obstruct proof are a clear violation of this duty and undermine the court's primary function of discovering the substantive truth.

II. Statutory Consequences: Failure to Comply with Document/Object Production Orders

The CCP provides specific statutory consequences for a party's failure to comply with court orders compelling the production of documents or the presentation of objects for inspection. These are among the most direct sanctions related to evidence handling.

A. Document Production Orders (CCP Article 224)

When a court has ordered a party to produce a specific document (文書提出命令 - bunsho teishutsu meirei) and the party fails to comply without a justifiable reason, Article 224 CCP outlines several potential consequences:

  1. Deeming Opponent's Assertions True (Regarding Document Content - Para. 1): The court may deem the opposing party's assertions concerning the statements in that document to be true. This is a significant tool, as it allows the requesting party to establish the contents of the unproduced document through their own allegations, provided those allegations are specific enough.
  2. Deeming Opponent's Assertions True (Regarding Fact to be Proven - Para. 2): If it is extremely difficult for the requesting party to make specific assertions about the document's contents or to prove the fact that was to be proven by the document through other means, the court may deem the fact that the requesting party intends to prove by that document to be true. This is an even stronger measure.
  3. The Core Provision for Document-Related Obstruction (Para. 3): This paragraph directly addresses spoliation-like conduct. It states that the consequences in Paragraphs 1 and 2 also apply when a party, for the purpose of preventing the opposing party from using a document, destroys it or otherwise makes it unusable. This provision requires not only the act of destruction/unavailability but also the intent to obstruct the opponent's use of the document. Proving this intent can sometimes be challenging.
  4. Non-Penal Fine (Karyō) (Para. 4): The court may also impose a non-penal fine (過料 - karyō) of up to JPY 200,000 on the non-compliant party. This is an administrative sanction and not a criminal penalty.

B. Orders for Presentation of Objects for Inspection (CCP Article 232)

Article 232 CCP states that the provisions regarding document production orders (including Article 224) apply mutatis mutandis to orders requiring a party to present an object for inspection (検証物提出命令 - kenshōbutsu teishutsu meirei). Thus, similar consequences follow for non-compliance.

C. Scope and Limitations

These statutory sanctions are potent but are specifically tied to non-compliance with formal court orders for production or presentation. They do not directly cover all forms of evidence obstruction that might occur outside the context of such an order.

III. Broader Implications of Obstruction of Proof Beyond Specific Orders

Even when a specific statutory sanction like CCP Article 224 is not directly applicable, conduct amounting to obstruction of proof can have serious adverse consequences for the obstructing party through the court's general powers and its evaluation of the case.

A. Adverse Inferences under the Principle of Free Evaluation of Evidence

The most significant tool is the court's power under the Principle of Free Evaluation of Evidence (jiyū-shinshō-shugi - CCP Article 247). If a party is found to have destroyed evidence, been evasive about its whereabouts, or provided implausible explanations for missing documents, the judge is entitled to draw adverse inferences from such conduct when evaluating the "entire import of the oral arguments and the result of the examination of evidence."
The court might infer, for example:

  • That the missing or destroyed evidence would have been unfavorable to the party who obstructed its availability.
  • That the obstructing party's overall credibility is diminished.
    This can significantly weaken the obstructing party's case, even if no direct sanction like "deeming facts true" is applied.

B. Potential Impact on the Burden or Standard of Proof

While Japanese law does not have rigid rules that automatically shift the ultimate burden of persuasion or formally lower the standard of proof solely due to obstruction (unlike some more severe spoliation sanctions in U.S. law like an "adverse inference instruction" that directly impacts the jury's deliberation on burden), severe or blatant obstruction can practically influence how the judge views the evidence.

  • A judge might be more readily persuaded by the innocent party's remaining evidence regarding a fact whose direct proof was thwarted.
  • The threshold of "high degree of probability" might, in the judge's mind, be met with less comprehensive evidence from the innocent party if the opponent has clearly acted in bad faith to obscure the truth.
    This is less a formal legal doctrine and more a practical consequence of how judges, applying common sense and principles of fairness, react to obstructive behavior within their free evaluation of evidence.

C. Lack of an Independent Tort for Spoliation

Unlike some U.S. states, Japan generally does not recognize an independent civil cause of action (a separate tort) specifically for "spoliation of evidence" that would allow a party to sue for damages solely based on the act of evidence destruction. The remedies for obstruction are typically sought and applied within the context of the ongoing primary litigation. However, if the obstructive act itself (e.g., theft and destruction of critical documents) also constitutes a separate recognized tort (like conversion or damage to property, coupled with resultant economic loss from losing the lawsuit), a claim might theoretically be framed, but this is not a common route for addressing litigation-related spoliation.

IV. Types of Conduct Constituting Obstruction of Proof

Obstruction of proof can manifest in various ways:

A. Active Obstruction

  • Physical Destruction: Intentionally shredding documents, deleting electronic files without backup, or damaging physical evidence.
  • Alteration or Falsification: Modifying documents, manipulating data, or creating forged evidence.
  • Concealment: Knowingly hiding relevant evidence from the opposing party or the court.
  • Witness Tampering/Subornation of Perjury: Illegally influencing a witness's testimony or inducing them to lie (these also have criminal implications).

B. Passive or Indirect Obstruction

  • Unjustified Refusal to Disclose: Failing to produce relevant information or documents when there is a clear duty to do so (even outside a formal court order, if such a duty can be established based on good faith principles or pre-suit inquiry responses).
  • Evasive or Misleading Conduct: Providing incomplete or deceptive responses to discovery requests or court inquiries, or feigning inability to locate evidence.
  • Willful Failure to Preserve Evidence: While the "duty to preserve" evidence upon anticipation of litigation is less formally codified with specific pre-litigation sanctions in Japan compared to the U.S., a party's deliberate failure to take reasonable steps to preserve known relevant evidence when litigation is clearly anticipated or already pending could be viewed as an act of bad faith and potentially contribute to a finding of obstruction, especially if the evidence subsequently becomes unavailable. This is an evolving area, particularly concerning electronic data.

V. Proving Obstruction of Proof

The party alleging that obstruction of proof has occurred generally bears the burden of demonstrating this to the court. This typically involves proving:

  1. That the specific obstructive act (e.g., destruction, concealment) took place.
  2. That the evidence in question was relevant.
  3. Often, particularly for the more severe consequences under CCP Article 224(3), that the act was done with an obstructive intent (i.e., to prevent the opposing party from using the evidence).

Proving obstruction, especially intent, can be challenging as such actions are often done covertly. Litigants may need to rely on circumstantial evidence, inconsistencies in the opposing party's accounts, or testimony from third parties to build a case for obstruction.

VI. Comparison with Spoliation Sanctions in Common Law Systems

It is useful for international businesses to understand the contrast with common law approaches, particularly in the U.S.:

  • Severity and Range of Sanctions: U.S. federal and state courts often have a broader and more severe range of explicit sanctions for spoliation, including strong adverse inference jury instructions, monetary sanctions (including attorney's fees incurred due to the spoliation), preclusion of claims or defenses, or even dismissal of the case in egregious instances.
  • Codification and Case Law: The duty to preserve evidence and the consequences for spoliation are extensively developed through case law and procedural rules (e.g., Federal Rules of Civil Procedure, Rule 37).
  • Focus in Japan: While Japan's codified sanctions (like CCP Article 224) are more specific to non-compliance with production orders, the Principle of Free Evaluation of Evidence (CCP Art. 247) provides a flexible, albeit more discretionary, judicial tool to address a wider range of obstructive behaviors through inferences and overall credibility assessments. The emphasis is often on rectifying the evidentiary imbalance within the ongoing case rather than imposing separate punitive measures, though non-penal fines exist.

VII. Best Practices for International Businesses

To avoid allegations of obstruction of proof and ensure compliance with Japanese litigation norms, international businesses should consider:

  1. Robust Document Retention and Management Policies: Implement, communicate, and consistently enforce clear internal policies regarding the creation, storage, and lawful destruction of documents and electronic data.
  2. Effective Litigation Hold Procedures: When litigation is initiated or reasonably anticipated, promptly issue a clear "litigation hold" notice to relevant employees, instructing them to preserve all potentially relevant documents, electronic data (including emails, databases, etc.), and other evidence. This should include suspending routine data destruction processes.
  3. Transparency and Diligence in Disclosure: Once litigation is underway, respond to legitimate information requests and court orders diligently and transparently (within the bounds of legal advice and applicable privileges). Avoid any actions that could be construed as selective disclosure or concealment.
  4. Consult with Japanese Legal Experts: Engage experienced Japanese litigation counsel early. They can provide guidance on specific preservation obligations, how to respond to disclosure requests, the risks associated with potential obstruction claims, and the nuances of Japanese court practice.
  5. Employee Training: Ensure key employees understand the importance of evidence preservation and the potential consequences of mishandling evidence in the context of actual or anticipated litigation.

VIII. Conclusion

Obstruction of proof is a serious affront to the principles of fair play and truth-finding in Japanese civil litigation. While Japan's approach to sanctioning such conduct may differ in its specific mechanisms from those in some common law countries, the potential negative consequences for an obstructing party are significant. Through specific statutory provisions like CCP Article 224 and, more broadly, the court's pervasive power under the Principle of Free Evaluation of Evidence, judges have the means to penalize obstructive tactics and adjust the evidentiary scales accordingly.

For all litigants, particularly international companies operating in or engaging with the Japanese legal system, a commitment to ethical conduct, proactive evidence preservation, and transparent cooperation (within legal limits) is not just good practice but a crucial element in safeguarding their interests and ensuring a fair hearing.