The Object of Appeal in Japan: Is the Court Reviewing the First Instance Judgment or Re-trying the Case?

When a party initiates a civil appeal (控訴 - kōso) in Japan, a fundamental, albeit often debated, question arises: what exactly is the "object of the appeal" or the "subject matter of the appellate litigation" (控訴審の訴訟物 - kōso-shin no soshōbutsu)? Is the appellate court primarily tasked with scrutinizing the first-instance judgment for errors, akin to an auditor checking a ledger? Or is its role to effectively re-try the original claims, taking a fresh look at the evidence and arguments, albeit within the procedural continuation of the first instance? The answer to this question profoundly impacts how appeals are conducted, the scope of review, and the opportunities available to litigants at the appellate stage.

The Prevailing View in Japanese Scholarship: The "Judgment Review Model"

For a long time, the dominant theory in Japanese legal scholarship (通説 - tsūsetsu), heavily influenced by prominent jurists like Professor Kaneko Hajime, has posited that the direct object of an appeal is not the underlying claim itself, but rather the first-instance judgment and, more specifically, the appellant's grievance (不服 - fufuku) against that judgment. This is often termed the "judgment review model" or, sometimes, the "cassation model" (取消モデル - torikeshi moderu) in its conceptual leanings, as it emphasizes the setting aside (取消し - torikeshi) of the lower court's judgment.

According to this perspective:

• The original claim comes before the appellate court not "naked," but "clothed" in the first-instance judgment. This judgment is seen as creating a sort of "shell" (殻 - kara) or "veil" (ベール - bēru).
• The appellate court's primary task is to determine if this "shell" – the first-instance judgment – is flawed within the scope of the appellant's asserted grievance.
• Only if the judgment is found to be erroneous and is "broken" or set aside can the appellate court then (secondarily) proceed to adjudicate the underlying claim.
• This view is often linked to the "principle of inseparability of appeal" (上訴不可分の原則 - jōso fukabun no gensoku), which suggests that an appeal brings the entire relevant judgment (or a significant, indivisible portion thereof) under review, at least for the purpose of determining its correctness.
• New claims introduced at the appellate level through amendment or counterclaim are conceptualized as forming part of the "content of the assertion for seeking modification of the first-instance judgment," rather than being freestanding new claims directly before the court in the same way as in the first instance.

This model implies a two-stage process: first, a review of the judgment's correctness, and second, if found incorrect, a new decision on the claim.

Critiques of the Prevailing "Judgment Review Model"

Despite its long-standing prevalence, the judgment review model faces significant theoretical and practical criticisms, many of which highlight its inconsistencies with the broader structure and principles of Japanese civil procedure:

1. The Problematic "Shell" or "Veil" Metaphor:
   The idea that a first-instance judgment, once appealed, forms a binding "shell" that must be formally "broken" is a central point of contention. An appeal, by its very nature, suspends the finality and res judicata effect of the first-instance judgment (Article 116(2) CCP). The judgment is in a state of flux, not yet a definitive legal pronouncement with binding force that needs to be "annulled" in the same way a final, erroneous administrative act might be. Early proponents of this "shell" idea, like Professor Kaneko, sometimes invoked a concept of "nascent res judicata" (生成経過中の既判力 - seisei keika-chū no kihanryoku) to explain the status of the appealed judgment. However, this concept is itself criticized as self-contradictory, as res judicata is a quality of finalized judgments. If the judgment is not final, it cannot possess res judicata, nascent or otherwise, in a way that restricts the appellate court's direct engagement with the underlying claim.
2. The "Formative Suit within a Suit" Analogy:
   Characterizing an appeal as a "formative suit (形成の訴え - keisei no uttae) within a suit," aimed at annulling the lower court judgment, is also problematic. Formative judgments typically create or change a legal status or relationship and require finality to take effect. If the appellate court's act of setting aside the lower judgment were truly a formative act, it would need to become final before the court could then rule on the original claim. Japanese appellate procedure is not structured this way; the review of the judgment and the re-adjudication of the claim (if the judgment is found wanting) happen within a single, continuous appellate process culminating in one appellate judgment.
3. Handling New Claims and Evidence:
   The judgment review model struggles to coherently explain the treatment of new claims introduced at the appellate stage (e.g., via amendment of claim or counterclaim) or new evidence. These new elements, by definition, were not part of the first-instance judgment and therefore have no "shell" to be broken. If the appeal court's primary object is the first-instance judgment, on what basis does it adjudicate entirely new claims that were never before that first-instance court? The argument that these new claims are merely "content" for seeking modification of the original judgment becomes strained.
4. Ambiguity in the Court's Mandate:
   If the primary object of the appeal is merely the "correctness of the grievance," and the appellate court finds the grievance justified (i.e., the first-instance judgment was wrong), a critical question arises: upon what basis does the court then proceed to issue a new judgment on the original substantive claim if that claim itself was not the direct and primary object of the appeal? To do so without a clear mandate from the appellant regarding the claim itself (as opposed to just the errors in the prior judgment) would seem to require the court to act ex officio concerning the claim, which runs contrary to the principle of party disposition (処分権主義 - shobunken shugi) that governs civil litigation. The prevailing theory acknowledges that the appellate court, after setting aside the judgment, must then generally make a new decision on the claim, but the theoretical bridge from "reviewing the grievance" to "re-adjudicating the claim" can appear tenuous under this model.

An Alternative Framework: The "Continuation Model" (審理続行モデル - Shinri Zokkō Moderu)

An alternative and, for many critics of the prevailing view, more coherent understanding is the "continuation model" or "procedural continuation theory" (shinri zokkō moderu or 手続続行説 - tetsuzuki zokkōsetsu). This model posits that:

• The civil appeal is fundamentally a continuation of the first-instance proceedings. The appellate court steps into the shoes of the first-instance court, albeit at a later stage of the unified proceeding.
• The subject matter (訴訟物 - soshōbutsu) before the appellate court is the original claim or claims that were asserted at the first instance. The appeal is not about the judgment as an abstract object of review, but about obtaining the correct judgment on the underlying claim(s).
• The appellate court's task is to determine how the claim(s) should be justly decided based on the facts and law as they stand at the conclusion of the appellate oral arguments. This inherently allows for the consideration of new facts (including those arising post-first-instance judgment), new evidence (subject to procedural limitations), and evolving legal interpretations.
• The first-instance judgment is not a "shell" to be broken but rather a decision whose finality has been suspended. The appellate court's new judgment on the claim simply replaces (or affirms the substantive outcome of) the first-instance judgment. There is no need for a separate, antecedent act of "annulment" before the appellate court can address the merits of the claim.
• The appellant's statement of dissatisfaction (不服申立て) serves to define the scope within which the appellate court can modify the first-instance outcome to the appellant's benefit (or detriment, if there's a cross-appeal), consistently with the disposition principle. It doesn't change the fundamental nature of what is being adjudicated—the original claims.

This model more easily accommodates the admission of new evidence and arguments, the fact that the res judicata standard time for an appellate judgment is the close of its own oral arguments, and the direct adjudication of new claims introduced by amendment or counterclaim at the appellate level.

Implications for Appellate Practice and "Post-hoc Review Management"

The theoretical understanding of the object of appeal has significant practical implications. The "judgment review model," with its emphasis on scrutinizing the first-instance judgment for errors alleged by the appellant, arguably provides a more convenient conceptual underpinning for the practice of "post-hoc review management" (jigo shinteki unei). If the court sees its primary role as checking the lower court's work based on the appellant's specific complaints, it might feel justified in quickly concluding proceedings if those initial written complaints do not appear immediately persuasive.

Conversely, the "continuation model" suggests a more proactive and comprehensive role for the appellate court. If its task is to arrive at the correct judgment on the claim now, then a fuller re-examination of the evidence and arguments, including a greater willingness to hear new material where appropriate and ensure all aspects of the claim are thoroughly considered, would be more consistent with its mandate. This view often aligns with criticisms that jigo shinteki unei can lead to a superficial review and potentially infringe on the parties' right to be fully heard.

Why the Distinction Matters: Ensuring a Fair and Thorough Second Look

The debate over the object of appeal is not merely academic. It touches upon the fundamental purpose of the appellate system:

• Is it primarily an error-correction mechanism focused on the past decision?
• Or is it a system designed to ensure the current, correct, and just resolution of the underlying dispute, treating the first instance as one stage in a continuous process?

While error correction is undoubtedly a function of appeal, the zokushinsei structure of Japanese civil appeals, which allows for new evidence and arguments and sets the res judicata standard time at the close of appellate hearings, strongly suggests that the latter—achieving the correct judgment on the claim based on the most current and complete information—is the more encompassing and accurate description of its objective. This understanding supports a more robust and less constrained appellate review than might be implied by a narrow focus on simply "reviewing the first-instance judgment."

Conclusion

While the prevailing academic theory in Japan has long described the object of a civil appeal as the first-instance judgment itself or the appellant's grievance against it, this "judgment review model" faces substantial criticism for its internal inconsistencies and its departure from the practical realities and statutory underpinnings of the "continuation system." A more coherent view, and one that aligns better with the procedural capabilities of the Japanese kōso appeal (such as the admission of new evidence and the res judicata timing), is that the true object of the appeal remains the original claim(s) asserted by the parties. The appellate court's role is to re-adjudicate these claims, within the scope of the appeal and cross-appeal, to arrive at the correct judgment based on the law and facts as they stand at the conclusion of its own proceedings. This perspective emphasizes the appeal as a vital stage for ensuring the ultimate substantive correctness of the outcome of the dispute, rather than just a check on the previous court's paperwork.