Provisional Enforcement in Japan: Claiming Restoration After a Judgment is Overturned – What Are the Fee Implications?

In Japanese civil litigation, a judgment, particularly one ordering a party to make a payment or perform an act (a "judgment for performance" - 給付判決, kyūfu hanketsu), can sometimes be accompanied by a "declaration of provisional execution" (仮執行宣言 - kari-shikkō sengen). This declaration is a powerful tool that allows the winning plaintiff to enforce the judgment immediately, even before it becomes final and unappealable (final and binding - 確定, kakutei). This mechanism aims to provide swift relief to the plaintiff.

However, provisional execution carries an inherent risk for the defendant: what happens if the judgment that was provisionally enforced is subsequently overturned or significantly modified on appeal? Japanese law provides a specific remedy for this situation under Article 260, Paragraph 2 of the Code of Civil Procedure (CCP), allowing the defendant to claim restoration of their original state or compensation for damages. A key practical question for defendants availing themselves of this remedy is how court fees are assessed for such claims.

The System of Provisional Execution and Its Reversal

Before delving into the fee implications for restoration claims, it's useful to understand the context:

• Declaration of Provisional Execution: Courts may, upon request or ex officio, attach this declaration to judgments for performance, unless specific reasons warrant otherwise (e.g., if it would cause irreparable harm to the defendant). This allows the plaintiff to initiate compulsory execution procedures based on the judgment even while appeals are pending.
• Lapse of Provisional Execution (CCP Art. 260(1)): If the provisionally enforceable first-instance judgment is later altered or set aside by an appeal court, or if the declaration of provisional execution itself is revoked, the declaration loses its legal effect prospectively. This means any ongoing execution based on it must cease, and any execution already completed may be unwound.

The Defendant's Right to Claim Restoration or Damages (CCP Art. 260(2))

When an appeal court alters or overturns a provisionally enforced judgment, CCP Article 260(2) provides a direct remedy for the defendant who was subjected to that provisional execution. Upon the defendant's application, the court that is altering or setting aside the original judgment (typically the appeal court itself) must include in its judgment an order against the original plaintiff (who benefited from the provisional execution). This order will compel the original plaintiff to:

1. Return whatever the defendant furnished or paid as a result of the provisional execution (e.g., money paid, property delivered up).
2. Compensate the defendant for any damages they suffered due to the provisional execution itself, or due to actions taken to avoid it (such as providing security to obtain a stay of execution).

This claim for restoration or damages is made within the same ongoing appellate proceeding where the original judgment is being reviewed and modified. This is designed for procedural efficiency, allowing the consequences of a wrongful provisional execution to be addressed immediately by the court rectifying the initial error.

Court Fee Calculation for Restoration or Damages Claims

The critical question for defendants making an application under CCP Art. 260(2) is the court fee payable for this claim.

Characterization as a "Counterclaim-like" Action for Fee Purposes

Japanese legal commentary and practice generally treat an application for restoration or damages under CCP Art. 260(2) as being "in the nature of a counterclaim" (反訴に準じる - hanso ni junjiru) for the purpose of calculating court fees. This means that the "value of suit" (so'gaku) for this application is determined based on the value of the restoration sought (e.g., the amount of money claimed for return) or the amount of damages being claimed by the defendant. The court fee is then calculated based on this so'gaku, using the standard progressive fee schedule applicable to ordinary claims and counterclaims (as provided in Appended Table 1, Item 6 of the Civil Procedure Costs Act, which governs counterclaim fees).

The Controversy: Fees When the Claim is Made at the Appeal Stage

While treating the claim as counterclaim-like provides a basis for so'gaku, a significant point of contention and criticism arises when this application is, as is typically the case, made before the appeal court.

• Prevailing Practice (as noted in the source material): Current practice, reportedly based on administrative guidance from the Supreme Court's bureaus (specifically, a "Showa 47.1.12 Minji Nikyoku, Nibu Saikōsai Minji Kyokuchō, Sōmu Kyokuchō Kaitō" – a response from the Chiefs of the Supreme Court's Civil Affairs Bureaus), is to calculate the fee for this restoration/damages application made at the appeal stage as 1.5 times the fee that would have been payable if this same claim (for restoration/damages) had been filed as an original lawsuit in a court of first instance.
• Critique of the 1.5x Appeal-Stage Fee Uplift (Author's Perspective from the source text):
  The author of the source material strongly criticizes this practice of applying a 1.5x fee multiplier. The arguments against this uplift are compelling:
  1. Inconsistency with the Provision's Purpose: CCP Article 260(2) is specifically designed for the defendant's convenience. It allows these consequential claims (which arise directly from the appellate court's decision to overturn or modify the provisionally enforced judgment) to be resolved efficiently within the same proceeding. The aim is to avoid forcing the defendant to initiate an entirely new, separate lawsuit (別訴 - besso) for restoration or damages.
  2. Unfair Burden and Lack of Justification: If the defendant were indeed required to file a separate new lawsuit for restoration or damages, standard first-instance court fees would apply to that new suit. To charge a premium (1.5 times the first-instance fee) simply because the claim is made—as statutorily permitted and encouraged for efficiency—within the very appellate proceeding that rectifies the error of the provisional execution is seen as unjust and lacking a sound basis.
  3. Rationale for Higher General Appeal Fees is Inapplicable: The usual justification for charging higher fees for appeals (i.e., that the appellant is seeking a review and judgment from a more senior, higher-level court concerning the main dispute) does not logically extend to this specific claim for restoration. The restoration claim is a direct consequence of the appellate court's own action of overturning or modifying the lower court's judgment. It is adjudicated by that same appellate court as an ancillary matter, not as a review of a lower court's decision on the restoration claim itself (as there was no such prior decision).
  4. Call for Revision: The author explicitly concludes that this practice of applying a 1.5x multiplier to fees for restoration and damages claims made under CCP Art. 260(2) when raised at the appeal stage should be revised and reformed.

Conclusion

The system of provisional execution in Japan provides a means for plaintiffs to obtain swift, albeit temporary, enforcement of judgments. However, when such judgments are subsequently overturned or modified on appeal, Article 260(2) of the Code of Civil Procedure offers an important and efficient remedy for defendants to seek restoration of what was paid or seized, and compensation for damages suffered due to the wrongful provisional execution.

For court fee purposes, these claims for restoration or damages are generally treated as being analogous to counterclaims, with their "value of suit" determined by the amount of restitution or compensation sought. The controversy highlighted in legal commentary concerns the prevailing practice of applying an appellate-level fee multiplier (1.5 times the standard first-instance fee) when these claims are, as is procedurally logical, raised before the appeal court. Critics argue that this surcharge is inconsistent with the purpose of CCP Art. 260(2) – which is to provide a convenient and integrated remedy – and unfairly burdens defendants seeking redress from the consequences of an erroneous provisional execution. This area underscores the ongoing tension between procedural expediency, fair cost allocation, and the interpretation of court fee regulations.