Responding to a Lawsuit in Japan: The Art of the Answer and Strategic Denials

When faced with a lawsuit in Japan, the defendant's first formal response—the Answer (答弁書 - tōbensho)—is a document of profound strategic importance. It's not merely a procedural formality but the initial opportunity to define the defense, contest the plaintiff's claims, and begin shaping the court's perception of the case. Crafting an effective Answer requires a clear understanding of Japanese civil procedure, a strategic approach to admissions and denials, and an appreciation for how judicial officers will scrutinize this foundational pleading.

I. The Answer (Tōbensho): Purpose and Essential Form

The Answer is the defendant's primary written submission responding to the allegations and claims set forth in the plaintiff's Complaint (訴状 - sojō). Its core functions are:

1. To state the defendant's position regarding the relief sought (請求の趣旨 - seikyū no shushi) by the plaintiff.
2. To provide specific admissions or denials (総括的認否 - sōkatsuteki ninpi, or more commonly just 認否 - ninpi) to the factual allegations contained in the plaintiff's Statement of Claim (請求の原因 - seikyū no gen'in).

The same term, tōbensho, is used for the responsive pleading in an appeal, often distinguished as a "Kōso Answer" (控訴答弁書 - kōso tōbensho) in the High Court.

Formally, the Answer must comply with the general rules for court documents, such as those stipulated in Article 2, Paragraph 1 of the Regulations for Civil Procedure (民事訴訟規則 - Minji Soshō Kisoku). As it is typically the defendant's first filing, it usually includes the full name, firm, address, and contact details of the defendant's counsel, along with a formal notification of the designated place for service of subsequent documents (送達場所の届出 - sōtatsu basho no todokede), as per Article 104, Paragraph 1 of the Code of Civil Procedure (民事訴訟法 - Minji Soshōhō) and Article 42, Paragraph 1 of the Regulations.

II. Strategic Approaches to Drafting an Answer: Common Patterns

The content and comprehensiveness of an initial Answer can vary depending on the circumstances, including the complexity of the case, the time available for investigation after receiving the complaint, and strategic considerations.

A. The Comprehensive Answer: The Ideal Standard
The most complete form of an Answer includes:

1. Response to the Relief Sought: Typically seeking dismissal of the plaintiff's claims and addressing incidental matters like litigation costs.
2. Detailed Admissions and Denials (Ninpi): A point-by-point response to the factual allegations in the plaintiff's Statement of Claim.
3. Defendant's Affirmative Assertions and Defenses (被告の主張 - Hikoku no Shuchō): Setting out any affirmative defenses (抗弁 - kōben) or other substantive arguments.

This comprehensive approach is generally preferred as it allows the court and the plaintiff to understand the defendant's position and the key disputed issues from an early stage. Particularly if the plaintiff has presented a strong prima facie case with substantial evidence, a robust and timely Answer is crucial to counter any initial judicial impressions that may have formed in the plaintiff's favor.

However, preparing such a detailed response immediately is not always feasible, especially if counsel has only recently been retained, the facts are intricate, or the client's recollection of events is initially unclear.

B. Staged or Abbreviated Answers: Practical Realities

In practice, defendants may initially file a less comprehensive Answer, with a commitment to supplement it later.

1. The "Three-Line Answer" (Sangyō Tōben - 三行答弁): This is a very concise initial response, often consisting of little more than:
   • A statement acknowledging receipt of the complaint.
   • A request for the court to dismiss the plaintiff's claim.
   • A statement that detailed admissions/denials and substantive arguments will be submitted at a later date ("請求原因は追って認否する" - seikyū gen'in wa otte ninpi suru).
   • Judicial Perspective: While frequently encountered, the sangyō tōben is not generally welcomed by judges, though they may understand the practical constraints (e.g., short notice before the first hearing date) that lead to its use. Some judges may press for a more substantive answer even at the first hearing, potentially considering factors like when the complaint was served, when counsel was formally retained (as indicated by the power of attorney), and whether counsel was involved in pre-litigation negotiations. If a sangyō tōben is filed, there's a strong expectation that a full, substantive response, including detailed ninpi and the defendant's primary arguments, will be submitted by the second court hearing. Unjustified delay beyond this can create a negative impression.
2. Answer with Ninpi Only: Some Answers might provide the admissions and denials but defer the presentation of affirmative defenses and detailed arguments.
   • Judicial Perspective: While this shows some engagement, judges generally prefer to see the ninpi and the defendant's core assertions presented together to get a complete picture of the defense.
3. Supplementing Abbreviated Answers: If a full substantive Answer cannot be immediately filed, it can be helpful to include a brief "Summary of Defendant's Assertions" (被告主張の概要 - hikoku shuchō no gaiyō) or an outline of "Anticipated Key Issues" (予想される主要な争点 - yosō sareru shuyō na sōten). This provides the court with some early insight into the likely areas of dispute and the defendant's general defensive posture. For example, in a traffic accident case, an initial Answer might state, "The defendant will not contest the facts of the accident (liability) but will contest the quantum of damages, particularly the claimed loss of earnings."

C. Pre-Merits Motions and Defenses (本案前の申立て - Hon'an Mae no Mōshitate)
Certain defenses or motions must be raised before the defendant engages with the substance (merits) of the plaintiff's claim to avoid waiving them. These include:

• Jurisdictional Objections (管轄違いの抗弁 - kankatsu chigai no kōben): If the defendant believes the court lacks jurisdiction, this must be argued before, or at the time of, the first substantive engagement. Otherwise, the defendant may be deemed to have submitted to the court's jurisdiction (responsive jurisdiction - 応訴管轄, ōso kankatsu), per Articles 12 and 13(1) of the Code of Civil Procedure.
• Arbitration Agreement Defense (仲裁契約の抗弁 - chūsai keiyaku no kōben): If there's a valid arbitration agreement covering the dispute, this must be raised as a preliminary issue (Arbitration Act, Article 14(1)(iii)).
• Motion for Security for Litigation Costs (訴訟費用の担保提供の申立て - soshō hiyō no tanpo teikyō no mōshitate): This also risks waiver if not timely raised (Code of Civil Procedure, Article 75(3)).

When raising such pre-merits issues, the Answer should clearly state them under a heading like "Pre-Merits Answer (Motion)" (本案前の答弁(申立て) - hon'an mae no tōben (mōshitate)) before responding to the plaintiff's request for relief on the merits. A separate section detailing the reasons for the pre-merits motion should follow. Even if a procedural defect is something the court could investigate ex officio, it is strategically advantageous for the defendant to raise it proactively and early.

III. Responding to the Relief Sought and Incidental Motions

The first substantive part of the Answer addresses the plaintiff's seikyū no shushi.

A. Motion for Dismissal of Plaintiff's Claim (請求棄却の申立て - Seikyū Kikkyaku no Mōshitate)
Unless the defendant intends to admit the entirety of the plaintiff's claim, the standard response is to request the court to dismiss the plaintiff's claim(s): 「原告の請求を棄却する」 (Genkoku no seikyū o kikkyaku suru). If there are multiple claims, this becomes 「原告の請求をいずれも棄却する」 (Genkoku no seikyū o izure mo kikkyaku suru - Dismiss all of the plaintiff's claims).

B. Incidental Motions (付随的申立て - Fuzuiteki Mōshitate)

1. Allocation of Litigation Costs (訴訟費用負担の申立て - Soshō Hiyō Futan no Mōshitate): Although the court will determine the allocation of litigation costs ex officio at the end of the case (Code of Civil Procedure, Article 67), it is customary for the defendant to include a request that "Litigation costs shall be borne by the Plaintiff" (訴訟費用は原告の負担とする - soshō hiyō wa genkoku no futan to suru).
2. Declaration to Avoid Provisional Execution (仮執行免脱の宣言の申立て - Karishikkō Mendatsu no Sengen no Mōshitate): A plaintiff may request that a judgment in their favor be declared provisionally executable. The defendant can, in turn, request that the court, if it grants provisional execution, also declare that the defendant can avoid it by providing security (Code of Civil Procedure, Article 259(3)). This motion is made somewhat rarely in practice, perhaps because it can be perceived as anticipating defeat. It is more common in certain types of cases, like traffic accidents where an insurer is involved, though actual declarations permitting avoidance are infrequent for monetary claims. If there are strong specific reasons why provisional execution would be unduly prejudicial, these should be argued in detail, rather than just making a pro forma motion.

IV. The Core: Admissions and Denials (Ninpi) to Factual Allegations

This is arguably the most critical part of the Answer, where the defendant directly engages with the factual basis of the plaintiff's case as set out in the seikyū no gen'in. The ninpi process clarifies which facts are in dispute and which are conceded, thereby defining the scope of evidence required.

A. The Significance of Ninpi

• Judicial Perspective: Judges place immense importance on ninpi. The court's fact-finding often proceeds by first identifying undisputed facts derived from admissions, and then examining evidence related to the contested facts. The manner in which facts are admitted or denied can substantially influence the judge's evolving understanding and impression of the case. Attorneys often meticulously mark up their copy of the complaint with symbols (e.g., ○ for admit, × for deny, △ for "don't know") to track the ninpi, a laborious but essential task for grasping the issues.

B. Types of Responses to Factual Allegations:

1. Admitting (認める - Mitomeru)
   • An admission of a "principal fact" (主要事実 - shuyō jijitsu, i.e., a fact constituting a direct element of the cause of action) creates a formal judicial admission (自白 - jihaku).
   • Legal Effect: A jihaku removes the admitted fact from the matters requiring proof and is binding on the court (Code of Civil Procedure, Article 179). Retracting a jihaku is highly restricted, generally requiring the opponent's consent or proof that the admission was contrary to the truth and was made due to a mistake.
   • Caution: Admissions should be made with extreme care, only after thorough verification of the facts with the client and supporting evidence.
   • Vague phrases like "generally admit" (概ね認める - ōmune mitomeru) are risky if applied to principal facts, as they may be treated as full admissions or, at best, will prompt the court to seek clarification. This phrasing is safer for lengthy, non-critical background narratives.
   • Judicial View on "Generally Admit" / "Admit the Remainder": "Generally admit" will likely be construed as a full admission. If the plaintiff's phrasing of a fact is not entirely accurate but the underlying substance is admitted, it's better to rephrase the fact from the defendant's perspective and admit that rephrased version (e.g., "Regarding allegation X, the Defendant admits that Y occurred..."). The phrase "admit the remainder" (その余は認める - sono yo wa mitomeru) is traditionally discouraged due to the risk of inadvertently admitting more than intended. However, if only a very small portion of a lengthy allegation is denied, meticulously listing every admitted sub-part can make the ninpi unwieldy; in such specific instances, a clear "Deny sub-part X and admit the remainder of the allegation" might be more readable for the court.
2. Denying (否認する - Hinin Suru)
   • A denial is a factual assertion that the plaintiff's alleged fact is untrue or did not occur. It is used when the defendant has direct knowledge or a strong basis to assert the non-existence of the alleged fact.
   • Reasons for Denial: Crucially, a denial of a fact that the plaintiff has specifically pleaded generally requires the defendant to state the reason for the denial (Regulations for Civil Procedure, Article 79, Paragraph 3). This is known as a "reasoned denial" (理由付否認 - riyūtsuki hinin) or an "affirmative denial" (積極的否認 - sekkyokuteki hinin).
   • While a denial without a stated reason is still technically a denial, it may be viewed unfavorably by the court and weaken the defendant's position.
   • Reasons can be brief and stated directly within the ninpi section (e.g., "The Defendant denies the allegation in Paragraph X of the Statement of Claim. The Defendant was not present at the alleged location on the specified date."). If the reasons are more extensive, they should be elaborated in the separate "Defendant's Assertions" (被告の主張 - Hikoku no Shuchō) section of the Answer.
   • Judicial View on Reasons for Denial: Judges generally prefer concise reasons within the ninpi section itself, allowing them to quickly grasp the core points of disagreement. Lengthy explanations are better suited for the "Defendant's Assertions" section, where the defendant can fully develop their counter-narrative. For example, a denial stating, "...deny. The money received by the Defendant was a gift from the Plaintiff, not a loan" is usually sufficient for the ninpi section.
3. Pleading "Not Knowing" (不知 - Fuchi)
   • A plea of fuchi (literally, "not knowing") regarding a factual allegation made by the opponent is presumed by law to be a contestation (denial) of that fact (Code of Civil Procedure, Article 159, Paragraph 2).
   • This response is appropriate when the defendant has no direct knowledge of the alleged fact (e.g., events that occurred between the plaintiff and a third party).
   • However, if the alleged fact is something the defendant should ordinarily know (e.g., a company pleading fuchi regarding statements made by its own currently employed manager during pre-litigation discussions, when the company could readily verify this), a simple plea of fuchi without explanation can appear evasive or disingenuous. In such cases, providing a reason for not knowing is advisable.
   • Judicial View on Fuchi Pleas: Judges generally do not automatically view a fuchi plea as a sign of a weak defense. The focus is on whether it is used appropriately. For facts concerning very old events, minor details from a long time ago, or matters genuinely outside the party's direct experience, a fuchi plea can be perfectly natural and credible.
4. Handling Uncertainty in Ninpi
   • Reserving Ninpi (認否を留保 - Ninpi o Ryūho): In rare cases, if a response to a specific allegation cannot be formulated immediately (e.g., because clarification from the plaintiff is needed, or because a key document is not yet accessible), a party might "reserve" their admission or denial for that point, stating the reason for the reservation.
   • Qualified Responses: If a fact isn't clearly false but there's insufficient basis to admit it confidently, counsel might state, "The Defendant's memory of this specific event is unclear, and therefore the Defendant pleads fuchi," or "As relevant documents have been lost, the Defendant denies this allegation at this time." Such responses can be amended later if more information comes to light; there are generally no restrictions on changing a denial or a fuchi plea to an admission.
   • Not Actively Contesting: If a fact's truth is unknown to the defendant but it's not a point they wish to actively dispute, they might state, "The Defendant pleads fuchi but does not actively contest this allegation." This is not a formal admission but signals to the court that it may treat the fact as established without formal proof. This approach carries risks similar to an unreasoned denial if the fact later proves disadvantageous.
5. Contesting Legal Arguments or Opinions (争う - Arasou)
   • When the plaintiff's complaint contains legal arguments, interpretations, or subjective opinions rather than pure factual allegations, the appropriate response is to "contest" (争う - arasou) them if the defendant disagrees.
   • If it's difficult to distinguish whether an opponent's statement is a factual allegation or a legal assertion, a combined response like "deny or contest" (否認ないし争う - hinin naishi arasou) is sometimes used, though precise, targeted responses are generally preferred.

C. Methodology of Ninpi: Precision is Key
The guiding principle for ninpi is to respond item-by-item (逐語的認否 - chikugoteki ninpi, though this literally means "word-for-word ninpi," the practice is more about responding to each distinct factual allegation). This is especially critical for principal facts. It's not necessary to dissect every single word, but the response must make it unambiguously clear which part of an allegation is being admitted, which is denied, and which is met with a plea of fuchi.

Using broad references like "the first paragraph" or "the latter part of the sentence" can be risky, as these divisions are imposed by the defendant and may be ambiguous. If such references are used, they should be clarified (e.g., "Regarding the third paragraph of the Statement of Claim, which begins with the words 'The Defendant, on July 21, Reiwa 1, stated to the Plaintiff...'").

While the traditional advice is to avoid formulations like "deny X and admit the remainder" due to the risk of inadvertently admitting something unintended, some judicial officers acknowledge that in cases of very lengthy allegations where only a minor sub-point is denied, such a formulation, if used carefully, can sometimes be more readable than a long list of admitted portions. However, caution is the default.

For lengthy narratives of background facts that are not central to the main dispute, a more summary form of ninpi (e.g., "generally admit the circumstances described," or "contest the overall tenor of these allegations as misleading") may be tolerated, but this approach carries risks if any of those "non-critical" facts later assume importance.

V. Presenting the Defendant's Case: Affirmative Assertions and Defenses (被告の主張（抗弁等） — Hikoku no Shuchō (Kōben tō))

Beyond simply responding to the plaintiff's allegations, the Answer is the defendant's opportunity to proactively present their own case. This is typically done in a section titled "Defendant's Assertions" (被告の主張 - Hikoku no Shuchō). This section is used when:

• The reasons for denying a plaintiff's allegation are extensive.
• The defendant is raising an affirmative defense (kōben)—that is, a new set of facts which, even if the plaintiff's allegations are true, would legally defeat or diminish the plaintiff's claim (e.g., statute of limitations, payment, accord and satisfaction).
• The defendant wishes to advance their own legal arguments or interpretations.

Pleading an affirmative defense involves asserting new requisite facts, and these must be pleaded with the same level of care, specificity, and evidentiary support as the plaintiff is required to show for their Statement of Claim. If multiple distinct defenses or detailed reasons for denial are being presented, they should be organized under clear subheadings for readability.

VI. Conclusion

The Answer in Japanese civil litigation is far more than a perfunctory denial. It is a critical strategic document that frames the defense, directly influences early judicial understanding, and sets the tone for the ensuing legal battle. A thoughtfully prepared Answer—whether comprehensive from the outset or strategically staged—demonstrates diligence, clarifies the defendant's position on key factual and legal issues, and provides a robust foundation for contesting the plaintiff's claims effectively. Understanding the procedural requirements, the nuances of ninpi, and the judicial perspectives on these elements is essential for any party responding to a lawsuit in Japan.