Responding to a Lawsuit in Japan: How to Craft a Strong Answer (Tōbensho) to Protect Your Company?

Japanese Attorney at Law - Bengoshi L.L.

• 10 min read

Being served with a lawsuit in any jurisdiction is a serious matter requiring immediate and strategic attention. When that lawsuit originates in Japan, understanding the specific procedural requirements and tactical considerations for crafting the initial response—the Answer, or Tōbensho (答弁書)—is paramount for protecting your company's interests. The Tōbensho is not merely a denial of claims; it is the defendant's foundational legal document, setting the stage for the entire defense strategy and signaling to the court and the plaintiff how the company intends to contest the allegations.

This article provides an in-depth guide for businesses on the critical elements of preparing and filing an effective Tōbensho in Japanese civil litigation, covering its purpose, essential components, strategic approaches to responding to allegations, the assertion of defenses, and crucial procedural requirements.

The Strategic Importance of the Tōbensho in Japanese Litigation

The Tōbensho serves as the defendant's first comprehensive written reply to the plaintiff’s complaint (sojō - 訴状). Its strategic importance cannot be overstated:

  1. Formal Response and Joinder of Issue: It formally joins the issues in dispute, indicating which of the plaintiff’s factual allegations and legal claims are admitted, denied, or otherwise contested.
  2. Framing the Defense Narrative: It provides the defendant with the first opportunity to present its version of the facts and the legal grounds upon which it will rely. This initial framing can significantly influence the court's perception of the defense case.
  3. Preventing Default Judgment: A timely and substantively appropriate Tōbensho is crucial to avoid adverse consequences, such as a judgment by default (kesseki hanketsu - 欠席判決) that can occur if a defendant fails to respond or appear without proper justification.
  4. Foundation for Subsequent Proceedings: The defenses, denials, and any counterclaims outlined in the Tōbensho (or subsequent preparatory briefs) will shape the course of preparatory proceedings (benron junbi tetsuzuki - 弁論準備手続), evidence disclosure, and ultimately, the trial.

Preparing to Draft the Tōbensho: Initial Steps and Due Diligence

Upon receiving a complaint, swift and methodical preparation is key:

  1. Thorough Review of the Complaint (Sojō): The first step is a meticulous analysis of each claim, factual allegation, legal argument, and the relief sought by the plaintiff. Understanding the plaintiff's case in its entirety is fundamental.
  2. Internal Investigation and Fact-Gathering: Immediately initiate an internal investigation to gather all relevant facts, documents, electronic data, and potential witness accounts pertaining to the allegations. This requires close collaboration between the legal department and relevant business units.
  3. Legal Analysis with Japanese Counsel (Bengoshi): Engaging experienced Japanese legal counsel is indispensable. The bengoshi will analyze the complaint under Japanese law, assess potential liabilities and defenses, and guide the company through the procedural requirements.
  4. Assessing Procedural Objections: Before addressing the substantive merits, counsel will examine whether any preliminary procedural objections are viable. These could include:
    • Lack of Jurisdiction (Kankatsu Chigai - 管轄違い): Arguing that the Japanese court does not have proper jurisdiction over the defendant or the subject matter.
    • Improper Service of Process: Challenging the validity of how the complaint was served.
    • Issues with Plaintiff's Standing: Questioning whether the plaintiff is the proper party to bring the claim.
      Such objections, if successful, can lead to the dismissal or transfer of the case. It's important to note that under Article 12 of the Japanese Code of Civil Procedure (CCP - 民事訴訟法, Minji Soshō Hō), failing to raise certain jurisdictional objections before making substantive arguments on the merits can result in a waiver, leading to the court assuming jurisdiction by consent (ōso kankatsu - 応訴管轄).

Essential Components of a Japanese Answer (Tōbensho no Kisai Jikō)

The Tōbensho must adhere to specific formal and substantive requirements, largely governed by the CCP and the Rules of Civil Procedure (RCP - 民事訴訟規則, Minji Soshō Kisoku).

A. Formalities:
Like the complaint, the Tōbensho must include:

  1. Title: "Answer" (答弁書 - Tōbensho).
  2. Date of Filing.
  3. Court Designation.
  4. Identification of Parties: Plaintiff(s) and Defendant(s), with full legal names and addresses.
  5. Legal Counsel Information: Details of the defendant's bengoshi.
    (RCP Arts. 80(3) and 53(4) provide that the attorney's details, including address and phone/fax, should be included).

B. Substantive Content:

  1. Response to the Relief Sought by the Plaintiff (Seikyū no Shushi ni Taisuru Tōben - 請求の趣旨に対する答弁):
    This section directly addresses each item of relief requested by the plaintiff in their complaint.
    • Preliminary Pleas (Hon'an Mae no Tōben - 本案前の答弁): If procedural objections (e.g., lack of jurisdiction) are being raised, these are typically stated before addressing the merits of the plaintiff’s claims. A motion to transfer venue (isō no mōshitate - 移送の申立て) under CCP Arts. 17 or 18 might also be made here or as a separate filing.
    • Substantive Response to the Claim (Hon'an no Tōben - 本案の答弁):
      • Seeking Dismissal: If the defendant contests the merits of the plaintiff’s claims, the standard request is for the "dismissal of the plaintiff's claim(s)" (Genkoku no seikyū o kikyaku suru - 原告の請求を棄却する). If there are multiple claims, the phrasing might be "dismissal of all of the plaintiff's claims."
      • Admission of Claim (Seikyū no Nindaku - 請求の認諾): In the rare instance where the defendant fully admits to the plaintiff's claim and the relief sought, a formal admission can be made. This usually leads to an immediate judgment based on the admission, concluding the litigation (CCP Arts. 266, 267).
    • Ancillary Requests (Fuzui-teki Mōshitate - 付随的申立て):
      • It is customary to request that "litigation costs shall be borne by the plaintiff." While the court ultimately decides on costs (CCP Art. 67), this request is standard.
      • If the plaintiff’s complaint includes a request for a declaration of provisional execution (kari-shikkō sengen), the defendant may request a "declaration permitting the avoidance of provisional execution" (kari-shikkō o mengareru旨の宣言 - kari-shikkō o mengareru mune no sengen, often termed kari-shikkō mentatsu sengen - 仮執行免脱宣言) upon the defendant providing adequate security to the court (CCP Art. 259(3)). This allows the defendant to prevent immediate enforcement of a judgment if they lose at first instance but intend to appeal, provided they can post the required security.
  2. Response to the Factual Allegations in the Plaintiff's Cause of Action (Seikyū no Gen'in ni Taisuru Ninpi - 請求の原因に対する認否):
    This is a critical section where the defendant must respond specifically to each factual allegation made by the plaintiff in the "Cause of Action" part of their complaint. The manner of response is crucial:
    • Admissions (Jihaku - 自白 or Mitomeru - 認める):
      • If a factual allegation made by the plaintiff is admitted by the defendant, this constitutes a "judicial admission" (saiban-jō no jihaku - 裁判上の自白).
      • Effect: The admitted fact does not need to be proven by the plaintiff, and the court is generally bound by this admission in its judgment (CCP Art. 179).
      • Withdrawal: Withdrawing a judicial admission is very difficult and typically requires the consent of the opposing party or proof that the admission was contrary to the truth and was made due to a mistake.
      • Constructive/Deemed Admission (Gisei Jihaku - 擬制自白 or Minashi Jihaku - 見做し自白): Under CCP Art. 159(1), if a party, during oral arguments or in pleadings that are deemed to have been stated (like a submitted Tōbensho at the first hearing if the party doesn't attend), fails to clearly dispute a specific factual allegation made by the opponent, that fact may be deemed admitted. This underscores the necessity of a thorough and explicit response to every material allegation.
    • Denials (Hinin - 否認):
      • A statement asserting that a factual allegation made by the plaintiff is untrue or did not occur.
      • Simple Denial (Tanjun Hinin - 単純否認): This places the burden of proof for the denied fact squarely on the plaintiff.
      • Reasoned Denial (Riyū-zuki Hinin - 理由付否認) or Affirmative Denial (Sekkyoku Hinin - 積極否認): This goes beyond a simple denial by not only refuting the plaintiff's allegation but also often presenting the defendant's alternative version of the facts or explaining why the plaintiff's allegation is incorrect.
    • Pleading Lack of Knowledge (Fuchi - 不知 or Shiranu - 知らぬ):
      • If the defendant genuinely has no knowledge regarding a particular factual allegation made by the plaintiff (e.g., an event that occurred exclusively within the plaintiff's sphere of activity or knowledge), they may plead "lack of knowledge."
      • Under CCP Art. 159(2), such a plea is presumed to constitute a dispute of the fact, effectively functioning like a denial for burden of proof purposes. However, this presumption is not absolute. If pleading lack of knowledge is clearly unreasonable concerning matters that should be within the defendant's own direct knowledge or easily ascertainable from their records, the court might, considering the entirety of the pleadings, find that the fact is not genuinely disputed.
    • Disputing Legal Assertions or Conclusions (Ronsō suru - 論争する or Arasou - 争う):
      If the plaintiff's complaint contains legal arguments, interpretations of law or contracts, or legal conclusions that the defendant contests, the appropriate response is to "dispute" (arasou) these assertions, rather than "denying" them (as denial is typically reserved for factual allegations).
  3. Defendant's Affirmative Allegations (Hikoku no Shuchō - 被告の主張):
    Beyond responding to the plaintiff's allegations, the Tōbensho is where the defendant proactively sets out its own case. This section includes:
    • Facts Supporting Denials: Providing the defendant's narrative that contradicts the plaintiff's claims.
    • Affirmative Defenses (Kōben - 抗弁): These are new sets of facts which, even if the plaintiff's core allegations were true, would legally defeat or diminish the plaintiff's claim. Examples include:
      • Statute of limitations (shōmetsu jikō - 消滅時効).
      • Accord and satisfaction (daibutsu bensai - 代物弁済 or benben kyōtaku - 弁済供託 related).
      • Comparative negligence (kashitsu sōsai - 過失相殺) in tort claims.
      • Fulfillment of contractual obligations, or excuse for non-performance.
        The defendant bears the burden of pleading and proving the essential facts (yōken jijitsu) for each affirmative defense asserted.
    • Counterclaims (Hanso - 反訴): If the defendant has its own claims against the plaintiff arising from the same matter or related issues, these can sometimes be included in the Tōbensho or, more commonly, filed as a separate but related counterclaim document.
      RCP Art. 80(1) mandates that these assertions, especially essential facts of defenses and important indirect facts, should be clearly stated and, where applicable, linked to supporting documentary evidence.
  4. Evidence Relied Upon (Shōko Hōhō - 証拠方法):
    The Tōbensho should list the key documentary evidence that the defendant relies upon to support its denials and affirmative allegations. Copies of these documents are typically attached to the Tōbensho (RCP Art. 80(2)). These are usually designated with a different prefix than the plaintiff's exhibits (e.g., Plaintiff uses 甲 - Kō, Defendant uses 乙 - Otsu).
  5. Attached Documents (Fuzoku Shorui - 附属書類):
    A list of all documents attached to the Tōbensho, commonly including a Power of Attorney (soshō ininjō - 訴訟委任状) for the defendant's counsel and copies of the evidentiary exhibits.

Strategic Considerations in Drafting and Filing the Tōbensho

  1. Timeliness of Filing: The Tōbensho must be filed with the court by the deadline specified in the summons, which is typically about one week before the date of the first oral hearing (CCP Art. 162). Missing this deadline can have serious consequences.
  2. The First Oral Hearing and "Constructive Statement" (Gisei Chinjutsu - 擬制陳述):
    A unique and important feature of Japanese civil procedure pertains to the first oral hearing. Under CCP Art. 158, if the defendant submits a Tōbensho by the deadline but is unable to attend this first hearing, the contents of the submitted Tōbensho are deemed to have been formally stated in court. This allows the proceedings to move forward without an immediate default judgment against a non-appearing defendant, provided their written defense is on record. This provision applies only to the first oral hearing. For subsequent hearings, non-appearance by a party who has not submitted a preparatory brief for that hearing can lead to their opponent’s allegations being deemed admitted (CCP Art. 159(3) read with 159(1)).
    If relying on constructive statement for the first hearing, it is good practice for counsel to submit a separate explanatory note (jōshinsho - 上申書) to the court indicating this intention and providing availability for the second hearing date to facilitate scheduling.
  3. Comprehensiveness vs. Incremental Disclosure:
    While the Tōbensho is the first major defensive pleading, it doesn't necessarily have to contain every single argument or piece of evidence the defendant will ever present. Japanese litigation often involves an iterative exchange of preparatory briefs (junbi shomen) during the preparatory proceedings for oral argument.
    However, the Tōbensho should be substantive enough to clearly frame the main lines of defense and respond adequately to the complaint. If retained very late, an attorney might file a very brief initial Tōbensho primarily addressing the "Relief Sought" and making general denials, with a statement that a more detailed substantive response will follow in a subsequent preparatory brief.
  4. Clarity and Specificity in Responses: Vague or evasive denials can be viewed unfavorably by the court and may not effectively counter the plaintiff's allegations. Each material factual allegation from the plaintiff should be addressed with a clear admission, denial, or plea of lack of knowledge.
  5. Evidence Strategy: While key documents supporting the Tōbensho should be submitted (RCP Art. 80(2)), the broader evidence strategy will unfold during preparatory proceedings. The Tōbensho sets the initial direction for the defense's evidentiary presentation.
  6. Requesting Clarification from the Plaintiff (Shakumei o Motomeru - 釈明を求める): If the plaintiff's complaint is vague, ambiguous, or lacks necessary specificity on critical points, the Tōbensho can include a formal request for the plaintiff to clarify those points (shakumei). This can be a strategic tool to compel the plaintiff to refine their allegations and can help narrow the issues in dispute early on.

Submission of the Tōbensho and Subsequent Procedure

The Tōbensho is filed with the court that issued the summons. Simultaneously, or promptly thereafter, a copy must be served directly by the defendant's counsel on the plaintiff's counsel (RCP Art. 83(1)). This is often done by facsimile, followed by the dispatch of a hard copy by mail. The plaintiff's counsel will typically provide a receipt of service to the defendant's counsel and the court (RCP Art. 47(5)).

Following the submission of the Tōbensho, the first oral hearing is held. This hearing may involve the formal oral statement of the key points from the complaint and answer (even if "constructively stated" under CCP Art. 158). The court will then typically discuss the future course of proceedings with the parties, often deciding to move the case into preparatory proceedings for a more detailed exchange of arguments and evidence.

Conclusion: The Tōbensho as the Linchpin of an Effective Defense

For any company facing litigation in Japan, the Tōbensho is a document of paramount importance. It is not merely a reactive denial but a proactive opportunity to define the contours of the defense, challenge the plaintiff's assertions, and begin to shape the narrative that will unfold before the court. A meticulously prepared, strategically sound, and procedurally compliant Tōbensho, developed in close collaboration with experienced Japanese bengoshi, is essential for safeguarding the company’s interests. It lays the critical groundwork for all subsequent defensive actions, evidence presentation, and any potential discussions towards a resolution, whether through settlement or a court judgment. Therefore, investing the necessary diligence and expertise in its creation is a cornerstone of a robust defense strategy in the Japanese civil justice system.