Pre-Litigation Protection: Understanding Provisional Remedies (Kari-Sashiosae & Kari-Shobun) in Japan

In the often lengthy process of resolving civil disputes through litigation, a significant risk for potential plaintiffs is that the defendant may take actions that render a future favorable judgment unenforceable or that the plaintiff may suffer irreparable harm while the case is pending. Assets can be dissipated, evidence can be destroyed, or ongoing infringing activities can cause mounting damages. To address these critical concerns, the Japanese legal system provides a robust framework of "Civil Provisional Remedies" (Minji Hozen, 民事保全), designed to offer swift, interim protection of a claimant's rights before a final judgment is reached in the main lawsuit (hon'an, 本案).

These remedies are not intended to definitively resolve the underlying dispute but rather to preserve the status quo, secure assets for potential future execution, or provide temporary relief from urgent harm. Understanding the two main pillars of this system—Provisional Attachment (kari-sashiosae, 仮差押え) and Provisional Disposition (kari-shobun, 仮処分)—is crucial for anyone contemplating or involved in civil litigation in Japan.

The "Why" and "When": Purpose and Characteristics of Civil Provisional Remedies

The core purpose of civil provisional remedies is to bridge the time gap between the initiation of a legal claim and its final adjudication and enforcement, ensuring that the main lawsuit does not become a Pyrrhic victory. Several key characteristics define these procedures:

1. Provisionality/Temporariness (Zanteisei, 暫定性): These measures are, by their nature, temporary. They provide interim protection and do not offer a final resolution of the parties' substantive rights, which is reserved for the main action.
2. Ancillary Nature (Jūzokusei, 従属性): Provisional remedies are generally ancillary to a main action. This means a main lawsuit concerning the underlying claim must either be pending or be filed shortly after a provisional order is granted. If the creditor fails to initiate or diligently pursue the main action, the debtor can petition for the cancellation of the provisional measure.
3. Urgency (Kinkyūsei, 緊急性): Recognizing the need for swift action, provisional remedy proceedings are designed to be expedited. Courts prioritize these applications to provide timely relief before the feared harm materializes or assets disappear.
4. Secrecy (Mitsukōsei, 密行性) (Primarily for Asset Preservation Types): For provisional attachment and certain types of provisional dispositions aimed at preserving assets or the subject matter of a dispute, the initial application is often examined ex parte (without the debtor's prior notification or participation). This secrecy is vital to prevent the debtor from taking pre-emptive measures that would frustrate the purpose of the remedy (e.g., hiding assets upon learning of the application).
5. Lower Standard of Proof (Somei, 疎明): To facilitate speed, the standard of proof required for obtaining a provisional remedy is generally a "prima facie showing" (somei), which is less rigorous than the "full proof" (shōmei, 証明) required to win the main action. The applicant needs to present evidence that makes their claim and the necessity for the remedy appear probable.
6. "All-Decisions" Principle (Ōru Kettei Shugi, オール決定主義): All judicial pronouncements in civil provisional remedy proceedings, including the final order granting or denying the remedy, are made in the form of a "decision" (kettei, 決定) rather than a full judgment (hanketsu, 判決). This reflects the summary and expedited nature of these proceedings.

The Two Main Pillars: Provisional Attachment and Provisional Disposition

Japanese civil provisional remedies are broadly categorized into provisional attachment (for monetary claims) and provisional disposition (for non-monetary claims or disputed legal statuses).

1. Provisional Attachment (Kari-Sashiosae, 仮差押え)

Governed by Article 20 of the Civil Provisional Remedies Act (民事保全法 - Minji Hozen Hō), provisional attachment is a pre-judgment measure designed to secure the eventual enforcement of a monetary claim. Its purpose is to prevent the debtor from disposing of their assets, thereby ensuring that if the creditor obtains a favorable monetary judgment in the main action, there will be assets available for compulsory execution.

• Target Assets: Provisional attachment can be sought against various types of the debtor's assets, mirroring those available for final execution:
  • Real Property (Fudōsan, 不動産): Land, buildings.
  • Movable Property (Dōsan, 動産): Tangible personal property, goods, equipment.
  • Monetary Claims (Kinsen Saiken, 金銭債権): Such as bank accounts held by the debtor, or accounts receivable owed to the debtor by third parties.
• Effect: If granted, a provisional attachment order effectively "freezes" the specified assets, prohibiting the debtor from selling, transferring, or further encumbering them. In the case of a bank account, it prevents withdrawals by the debtor up to the attached amount.

2. Provisional Disposition (Kari-Shobun, 仮処分)

Provisional disposition, governed by Article 23 of the Civil Provisional Remedies Act, is a more versatile remedy used for claims other than the payment of money or to regulate a temporary legal status in a dispute. It is broadly divided into two types:

• (a) Provisional Disposition Concerning a Disputed Subject Matter (Keisōbutsu ni kansuru kari-shobun, 係争物に関する仮処分):
  This type aims to preserve a specific item of property or a specific right that is the direct subject of the main litigation, ensuring that it remains available or in its current state until the dispute is resolved. Common examples include:
  • Disposition-Prohibiting Provisional Disposition (Shobun-kinshi no kari-shobun, 処分禁止の仮処分): This order prohibits the respondent from disposing of (e.g., selling, mortgaging, transferring) a specific piece of property, such as a parcel of land, a building, or valuable shares, while its ownership or entitlement is being litigated. For real estate, this is typically executed by registration in the property registry.
  • Occupancy-Transfer-Prohibiting Provisional Disposition (Sen'yū-iten-kinshi no kari-shobun, 占有移転禁止の仮処分): This order prevents the respondent from transferring the physical possession of specific property (e.g., leased premises that a landlord seeks to recover, or specific goods that a buyer claims) to a third party during the litigation. This is crucial because if possession is transferred, the claimant might have to initiate new proceedings against the new possessor.
• (b) Provisional Disposition to Determine a Provisional Status (Kari no chii o sadameru tame no kari-shobun, 仮の地位を定めるための仮処分):
  This is arguably the most flexible and often complex type of provisional remedy. It is used to establish a temporary legal position for the applicant or to impose a temporary obligation on the respondent to avert substantial harm or imminent danger that cannot be adequately addressed by monetary compensation later or that would render a final judgment ineffectual. The scope of such orders is broad and tailored to the specific circumstances of the case. Examples abound and reflect the evolving nature of legal disputes:
  • Prohibiting Infringing Acts: Orders to temporarily cease patent or trademark infringement, acts of unfair competition, or copyright violations. This is common in intellectual property disputes.
  • Stopping Nuisance or Harmful Activities: Orders to halt construction work that allegedly violates building codes or infringes on a neighbor's rights (e.g., right to sunlight), or to stop polluting activities.
  • Temporary Performance Orders: In employment disputes, an order for the temporary reinstatement of a dismissed employee or for the interim payment of wages. In defamation cases, an order to halt the publication or distribution of allegedly defamatory material.
  • Regulating Corporate Affairs: Orders to temporarily suspend the execution of a shareholder resolution, prohibit the holding of a shareholders' meeting under allegedly illegal procedures, or enjoin the issuance of new shares.
  • Internet-Related Disputes: A growing area involves provisional dispositions against online service providers to, for example, compel the temporary removal of defamatory content or the disclosure of anonymous poster information (though the latter often requires navigating specific procedures under laws like the Provider Liability Limitation Act). Case 39 from the provided materials, concerning a request for a provisional disposition regarding online posts, falls into this evolving category.

The Procedural Journey: From Application to Execution (and Challenge)

The process for obtaining and enforcing civil provisional remedies involves several key stages:

• A. Application (Mōshitate, 申立て):
  The process begins with the claimant (creditor) filing a petition for a provisional remedy with the competent court.
  • Jurisdiction: Jurisdiction generally lies with the court that has (or would have) jurisdiction over the main action, or the court in the locality of the property to be attached or the disputed subject matter. Specific rules apply for international cases, generally requiring that Japanese courts have jurisdiction over the main action for a provisional remedy to be sought (Article 11, Civil Provisional Remedies Act, as amended in 2011).
  • Content of Application (Article 13, Civil Provisional Remedies Act): The petition must clearly identify:
    1. The Right to be Preserved (Hi-Hozen Kenri, 被保全権利): The underlying substantive claim or legal right that the applicant seeks to protect (e.g., a loan claim for provisional attachment; a claim for transfer of property for a disposition-prohibiting provisional disposition).
    2. The Necessity for the Provisional Remedy (Hozen no Hitsuyōsei, 保全の必要性): Facts and evidence demonstrating why the provisional measure is necessary. This means showing that without the remedy, the future enforcement of a judgment in the main action would become impossible or extremely difficult (e.g., because the debtor is likely to dissipate assets, or the subject matter is at risk of being altered or transferred), or, in the case of a provisional disposition to determine a provisional status, that the applicant will suffer substantial harm or face imminent danger.
       The applicant must make a prima facie showing (somei) of these elements, usually through documentary evidence and written statements.
• B. Examination by the Court (Shinri, 審理):
  The court examines the application promptly.
  • For provisional attachment and provisional dispositions concerning a disputed subject matter: The examination is often conducted ex parte (without hearing the respondent debtor) to preserve the elements of speed and surprise. However, in specialized courts (like those in Tokyo or Osaka with dedicated provisional remedy divisions), it is common practice for the judge to conduct an interview (a form of interrogation or shinmon, 審尋) with the applicant's counsel to clarify points and assess the merits.
  • For provisional dispositions to determine a provisional status: Because these orders can have a significant immediate impact on the respondent, the court is generally required to hold an oral hearing or an interrogation session where the respondent has an opportunity to be heard, unless doing so would frustrate the purpose of the disposition due to extreme urgency (Article 23, paragraph 4, Civil Provisional Remedies Act). In practice, respondent interrogation is common for these types of applications.
• C. Security Deposit (Tanpo no Teikyō, 担保の提供 - Article 14, Civil Provisional Remedies Act):
  Given that provisional remedies are granted based on a prima facie showing and often ex parte, there's a risk that the order might later be found to have been unjustified. To protect the respondent from potential damages suffered as a result of a wrongful provisional order, the court almost invariably orders the applicant to provide security (a monetary deposit with a legal affairs bureau or a payment guarantee from a financial institution) before the provisional order is formally issued.
  The amount of security is determined by the court at its discretion, considering factors such as the nature of the remedy, the value of the assets affected, the strength of the applicant's prima facie case, and the potential harm to the respondent. Courts often have internal guidelines for typical security amounts (e.g., a percentage of the claim amount for provisional attachment, or a percentage of the property value for real estate-related dispositions). If the main action is later dismissed and the respondent can prove damages caused by the provisional remedy, they can claim against this security.
• D. Issuance of the Provisional Order (Hatsurei, 発令):
  Once any required security has been provided, the court issues the provisional attachment order or provisional disposition order.
  • Release Money (Kaihōkin, 解放金): For provisional attachment orders, the court must specify an amount of "release money" (仮差押解放金 - kari-sashiosae kaihōkin). If the debtor deposits this amount with the court, the provisional attachment on their specific property is lifted, and the attachment effect effectively shifts to the deposited money (Article 22, Civil Provisional Remedies Act). For provisional dispositions, the court may, if appropriate (particularly if the preserved right can ultimately be satisfied by a monetary payment), specify an amount of "provisional disposition release money" (仮処分解放金 - kari-shobun kaihōkin) which, if deposited by the debtor, can lead to the cancellation of the provisional disposition's execution (Article 25, Civil Provisional Remedies Act).
• E. Execution of the Provisional Order (Hozen Shikkō, 保全執行):
  The provisional order itself does not automatically achieve its purpose; it must be "executed."
  • Time Limit for Execution: The creditor must generally initiate the execution of the provisional order within two weeks of it being served on them (Article 43, paragraph 2, Civil Provisional Remedies Act). Failure to do so renders the order unexecutable.
  • Execution Methods:
    • Provisional Attachment of Real Property: Executed by registering the provisional attachment in the real estate registry, commissioned by the court clerk.
    • Provisional Attachment of Movables: Executed by a court execution officer taking possession of the movables.
    • Provisional Attachment of Monetary Claims: Executed by serving the provisional attachment order on the third-party debtor (garnishee), prohibiting them from paying the debtor.
    • Provisional Dispositions: The method of execution varies greatly depending on the content of the order.
      • A disposition-prohibiting provisional disposition concerning real estate is executed by its registration. This registration gives notice to potential third-party purchasers or encumbrancers and can affect their rights relative to the claimant. Sometimes, a "provisional registration for preservation" (hozen kari-tōki, 保全仮登記) is used in conjunction to secure priority for a future main registration.
      • An occupancy-transfer-prohibiting provisional disposition is typically executed by the court execution officer taking symbolic or actual steps to assert control over the premises and posting official notices of the prohibition.
      • Orders establishing a provisional status (e.g., an order to cease a certain activity) are often enforced by the inherent authority of the court order itself, with non-compliance potentially leading to further sanctions like indirect compulsion. Some provisional dispositions, known as "satisfactory provisional dispositions" (manzokuteki kari-shobun, 満足的仮処分), by their nature, achieve the substantive relief sought in the main action (e.g., an order for an interim payment). While still technically provisional, they have a more conclusive effect.
• F. Challenging Provisional Orders (Fufuku Mōshitate Tetsuzuki, 不服申立手続):
  The respondent (debtor) has several avenues to challenge a provisional order that has been issued:
  • Objection to Provisional Remedy (Hozen Igi, 保全異議 - Article 26, Civil Provisional Remedies Act): The debtor can file an objection with the same court that issued the provisional order, arguing that the requirements for the order (the right to be preserved or the necessity for preservation) were not met at the time of issuance. The court will then re-examine the matter, usually after hearing both sides.
  • Cancellation of Provisional Remedy (Hozen Torikeshi, 保全取消し - Articles 37-39, Civil Provisional Remedies Act): The debtor can petition for cancellation on several grounds that arise after the order was issued:
    1. If the creditor fails to file the main lawsuit within a period specified by the court upon the debtor's request (this is called an "order to sue" or kiso meirei, 起訴命令).
    2. If there has been a significant change in circumstances since the order was issued that eliminates the need for the provisional remedy (e.g., the underlying claim has been paid, or the risk of asset dissipation has vanished).
    3. For provisional dispositions only, due to "special circumstances" where continuing the disposition would cause the debtor irreparable harm, provided the debtor offers sufficient security.
  • Appeal against Provisional Remedy Decision (Hozen Kōkoku, 保全抗告 - Article 41, Civil Provisional Remedies Act): Decisions made by the court on an objection or a petition for cancellation can be appealed to a higher court.

Conclusion

Civil provisional remedies in Japan, encompassing provisional attachment and various forms of provisional disposition, serve as a critical legal mechanism for providing timely, pre-judgment protection to claimants. They aim to ensure that the efforts and resources invested in litigation are not rendered meaningless by adverse actions taken by the opposing party or by the irreversible unfolding of harmful events while the main case proceeds. While these remedies are powerful, their expedited and often initially ex parte nature is balanced by the mandatory provision of security by the applicant and robust avenues for challenge by the respondent. For businesses and legal professionals operating in or dealing with Japan, a clear understanding of when and how to utilize these provisional measures can be instrumental in safeguarding rights and ensuring that future legal victories have practical effect.