Understanding Preliminary Injunctions and Other Provisional Remedies in Japanese Civil Litigation

Winning a lawsuit can be a long and arduous process. But what if, during the months or even years it takes to obtain a final judgment, the defendant dissipates their assets, destroys the subject matter of the dispute, or continues an infringing activity that causes irreparable harm? A favorable judgment might then become a hollow victory. To address this critical issue, Japanese civil procedure, primarily through the Civil Provisional Remedies Act (民事保全法 - Minji Hozen Hō), provides a suite of powerful "provisional remedies" (民事保全 - minji hozen) designed to safeguard a claimant's ability to obtain effective relief from an eventual final judgment by preserving assets or the status quo.

This article explores the main types of provisional remedies available in Japan—notably provisional attachment (kari-sashiosae) and provisional dispositions (kari-shobun)—their underlying requirements, the procedural steps involved, and their strategic importance in civil litigation.

I. The "Why" of Provisional Remedies: Preserving the Status Quo and Securing Future Enforcement

The fundamental purpose of provisional remedies in Japan is twofold:

1. To Secure Future Enforcement of a Claim: Particularly for monetary claims, it aims to prevent the defendant (debtor) from hiding, transferring, or dissipating their assets during the pendency of the main lawsuit, which would make it impossible to satisfy a future monetary judgment.
2. To Preserve the Status Quo or Prevent Imminent Harm Regarding a Disputed Right: For non-monetary claims or ongoing disputes, it aims to prevent actions by the defendant that could irreparably alter the subject matter of the dispute or cause ongoing, significant harm to the plaintiff while the main case is being decided.

These remedies are "provisional" because they are granted pending a final determination of the parties' rights in the main lawsuit (hon'an soshō - 本案訴訟). They do not decide the ultimate merits of the case but provide temporary protection.

II. Key Requirements for Obtaining Provisional Remedies

To obtain any provisional remedy in Japan, the applicant (the creditor or claimant – 債権者 saikensha) must generally satisfy the court on two key elements, typically through a prima facie showing (疎明 - somei), which is a lower standard of proof than required for a final judgment (which demands a "high degree of probability") but still requires credible evidence:

1. Existence of the Right to be Preserved (Hi-Hozen Kenri no Sonzai - 被保全権利の存在): The applicant must demonstrate, on a prima facie basis, the existence of the underlying substantive right or claim that they are seeking to protect and will assert in the main lawsuit (e.g., a valid contractual claim for payment, an ownership right to a specific property, a right to an injunction against patent infringement).
2. Necessity of the Provisional Remedy (Hozen no Hitsuyōsei - 保全の必要性): The applicant must also show, again on a prima facie basis, that without the provisional remedy, the future enforcement of their right (if they ultimately win the main lawsuit) would be impossible or extremely difficult. This involves demonstrating a credible risk, for example:
   • That the debtor is likely to conceal, transfer, or dispose of their assets.
   • That the disputed property is at risk of being destroyed, altered, or transferred to a third party.
   • That the defendant's ongoing actions are causing or threatening to cause imminent and substantial harm that cannot be adequately compensated by damages later.

III. Main Types of Provisional Remedies in Japan

The Civil Provisional Remedies Act provides for two main categories of provisional remedies:

A. Provisional Attachment (Kari-Sashiosae - 仮差押え) (Minji Hozen Hō Art. 20)

1. Purpose: Specifically designed to secure the future enforcement of a monetary claim (金銭債権 - kinsen saiken). It is used when the plaintiff is ultimately seeking a sum of money from the defendant.
2. Action: If granted, the court issues an order for the temporary "freezing" or attachment of the debtor's specified assets. This prevents the debtor from disposing of these assets while the main lawsuit is pending.
3. Target Assets: Provisional attachment can target various types of the debtor's property, including:
   • Bank accounts.
   • Real estate (land, buildings).
   • Movable property (vehicles, equipment, inventory).
   • Receivables owed to the debtor by third parties (e.g., accounts receivable).
4. Scope: The attachment is typically limited to assets sufficient in value to cover the likely amount of the plaintiff's monetary claim, plus anticipated interest and costs of execution.

B. Provisional Disposition (Kari-Shobun - 仮処分)

Provisional dispositions are used for claims that are not purely monetary or where the aim is to regulate a state of affairs rather than just freeze assets for a future money judgment. There are two main types under Article 23 of the Civil Provisional Remedies Act:

1. Provisional Disposition Relating to Disputed Subject Matter (Keisōbutsu ni kansuru Kari-Shobun) (Art. 23(1)):
   • Purpose: To preserve the status of a specific disputed object (movable or immovable property, or a specific right related to such an object) when the main claim is for its delivery, transfer, or the assertion of a specific right over it (e.g., ownership, leasehold, pledge).
   • Common Court Orders:
     • Prohibition of Transfer of Possession (占有移転禁止の仮処分 - sen'yū iten kinshi no kari-shobun): Prevents the defendant from transferring physical possession of the disputed item to a third party.
     • Prohibition of Disposal (処分禁止の仮処分 - shobun kinshi no kari-shobun): Prevents the defendant from selling, mortgaging, or otherwise encumbering the disputed property. Often registered in public registries for real estate to give notice to third parties.
     • Orders to maintain the current condition of the property.
   • Example: In a lawsuit where Plaintiff A claims ownership of a unique painting currently possessed by Defendant B, A might seek a provisional disposition prohibiting B from selling or moving the painting until the ownership dispute is resolved.
2. Provisional Disposition to Determine a Provisional Status (Kari no Chii o Sadameru Kari-Shobun) (Art. 23(2)):
   • Purpose: This is a highly flexible and often very potent remedy used to prevent substantial disadvantage or imminent danger to a party arising from a disputed continuing legal relationship by temporarily defining or regulating the parties' status or obligations pending a final judgment. It is often sought when monetary compensation alone would be inadequate or too late.
   • Nature: These orders can be mandatory (requiring a party to do something) or prohibitory (requiring a party to refrain from doing something).
   • Examples of Common Applications:
     • Labor Disputes: An order temporarily reinstating a dismissed employee pending a final judgment on the lawfulness of their dismissal (地位保全の仮処分 - chii hozen no kari-shobun).
     • Corporate Disputes: An order temporarily suspending the exercise of voting rights by a shareholder whose share acquisition is being challenged, or temporarily suspending the execution of a contested board resolution.
     • Intellectual Property Infringement: An order for the temporary cessation of an allegedly infringing activity (e.g., manufacturing or selling infringing goods, using an infringing trademark or copyrighted work). This is a common tool in patent, trademark, and copyright litigation.
     • Defamation/Privacy: An order temporarily prohibiting the publication or dissemination of allegedly defamatory or privacy-infringing material.
     • Nuisance/Harassment: Orders to temporarily cease certain disruptive activities.
     • Family Law (though often handled by Family Courts under different rules): Temporary orders regarding child custody or visitation.
   • High Hurdle: Courts tend to be cautious in granting these types of provisional dispositions, especially if they significantly interfere with the defendant's ongoing activities or grant the plaintiff much of the relief they seek in the main action. The applicant must demonstrate not only a prima facie right and necessity but also that they face "substantial disadvantage" or "imminent danger" that cannot be averted otherwise. The balance of hardships between the parties is often a key consideration.

IV. The Procedural Path to Obtaining Provisional Remedies

The process for obtaining provisional remedies is designed to be relatively swift, often with an element of secrecy to ensure effectiveness.

1. Filing a Petition (Mōshitate - 申立て): The creditor/claimant files a detailed written petition with the competent court. Under Article 12 of the Civil Provisional Remedies Act, this is generally the court that has jurisdiction over the main action or the district court having jurisdiction over the location of the property to be attached or the disputed subject matter. The petition must specify the right to be preserved and the necessity for the provisional remedy, supported by prima facie evidence.
2. Court's Review and Hearing (Shinri - 審理):
   • Speed and Secrecy (Mikkōsei and Jinsokusei): A hallmark of these proceedings is their intended speed (迅速性 - jinsokusei) and, often, initial secrecy (密行性 - mikkōsei). To prevent the debtor from taking preemptive action (like hiding assets upon learning of the application), the court typically conducts its initial review of the creditor's petition and evidence without formally hearing the debtor (saimusha) at this stage. This is particularly common for provisional attachments.
   • While an ex parte decision is common for initial issuance, the debtor has rights to object later (see Section V). In some cases, especially for complex provisional dispositions that might significantly impact the debtor (like those determining a provisional status), the court may decide to hold oral arguments or conduct a hearing involving the debtor (saimusha shinjin - 債務者審尋) before issuing an order.
3. Provision of Security (Tanpo no Teikyō - 担保の提供) (Minji Hozen Hō Art. 14):
   • This is a crucial and almost invariable requirement. Before a court issues a provisional remedy order, it will order the applicant (creditor) to provide security (担保 - tanpo). This security is usually a monetary deposit made with the court (or a bank guarantee acceptable to the court).
   • Purpose: The security is intended to compensate the debtor for any damages they might suffer as a result of the provisional remedy if it later turns out that the remedy was wrongfully obtained (e.g., if the creditor ultimately loses the main lawsuit on the merits).
   • The amount of security is determined at the court's discretion, based on factors like the nature of the remedy, the value of assets being frozen or the potential disruption to the debtor, and the strength of the creditor's prima facie case. It can be substantial.
4. Issuance of the Provisional Remedy Order (Hozen Meirei no Hatsurei - 保全命令の発令): If the court is satisfied that the applicant has made a prima facie showing of their right to be preserved and the necessity of the remedy, and once the ordered security has been provided, the court will issue the provisional remedy order.
5. Execution of the Provisional Remedy (Hozen Shikkō - 保全執行):
   • The court's order itself does not automatically freeze assets or stop an activity. The creditor must take separate steps to have the order executed.
   • For provisional attachment of movables or real estate, or for certain types of provisional dispositions, this involves applying to a court execution officer (shikkōkan - 執行官) to carry out the attachment or other measures. For provisional attachment of claims (like bank accounts), notice is served on the third-party debtor (the bank). For provisional dispositions affecting real estate (like a prohibition of disposal), registration in the land registry is often required.
   • Execution must generally be carried out within a short, specified period after the order is served on the creditor (e.g., two weeks under Article 43(2) of the Civil Provisional Remedies Act), failing which the order may lose its effect.

V. Debtor's Recourse Against Provisional Remedies

A debtor who is subjected to a provisional remedy is not without recourse:

1. Objection to Provisional Remedy (Hozen Igi - 保全異議) (Minji Hozen Hō Art. 26 et seq.): The debtor can file an objection with the court that issued the provisional remedy order. This triggers a more formal inter partes (both sides heard) proceeding where the court re-examines the validity of the order (i.e., whether the creditor truly established a prima facie right and the necessity for the remedy). The court can then uphold, modify, or revoke the original order.
2. Action for Revocation of Provisional Remedy (Hozen Torikeshi - 保全取消し) (Minji Hozen Hō Art. 38 et seq.): The debtor can also file a separate action to seek revocation of the provisional remedy if:
   • Circumstances have materially changed since the order was issued (e.g., the reason for preservation no longer exists).
   • The creditor fails to file the main lawsuit within a period specified by the court after being ordered to do so (see below).
   • The creditor provided false information or failed to disclose material facts in their initial application.
   • The creditor has lost the main lawsuit.
3. Order to File Action on the Merits (Kiso Meirei - 起訴命令) (Minji Hozen Hō Art. 37): If the creditor obtained a provisional remedy before filing the main lawsuit (which is permissible), the debtor can petition the court that issued the provisional remedy to order the creditor to file the main action on the merits within a specified period (e.g., two weeks or a month). If the creditor fails to comply with this "order to sue," the debtor can then apply for revocation of the provisional remedy. This prevents creditors from obtaining provisional relief and then unduly delaying the main action.
4. Claiming Damages from Security: If the provisional remedy is ultimately found to have been wrongfully obtained (e.g., the creditor loses the main lawsuit, or the remedy is revoked for being unjustified), the debtor can file a claim for damages they suffered as a result of the provisional remedy. The security provided by the creditor serves as a fund for satisfying such damage claims.

VI. Relationship with the Main Lawsuit (Hon'an Soshō)

Provisional remedies are always ancillary or auxiliary to a main lawsuit (either pending or to be filed shortly).

• Their sole purpose is to preserve the claimant's ability to obtain effective relief from the eventual judgment in the main action.
• The findings made by the court in the provisional remedy proceedings (which are based on a prima facie showing) are not binding on the court that hears the main lawsuit. In the main lawsuit, a full examination of all evidence is conducted, and the standard of proof is higher ("high degree of probability"). It is entirely possible for a party to obtain a provisional remedy but then lose the main case on the merits, or vice versa.

VII. Comparing with U.S. Preliminary Relief

For US practitioners, Japanese provisional remedies have some parallels but also distinct features compared to U.S. preliminary relief mechanisms like Temporary Restraining Orders (TROs) and Preliminary Injunctions:

• U.S. Standards: U.S. federal courts typically require a party seeking a preliminary injunction (after notice and hearing) to show: (1) a likelihood of success on the merits; (2) a likelihood of suffering irreparable harm in the absence of preliminary relief; (3) that the balance of equities/hardships tips in their favor; and (4) that an injunction is in the public interest. TROs can sometimes be obtained ex parte for a very limited duration (e.g., 14 days under FRCP 65(b)) upon a showing of immediate and irreparable injury. Security is also almost always required (FRCP 65(c)).
• Similarities: Both systems aim to preserve the status quo or prevent irreparable harm pending a final decision, and both usually require the applicant to provide security.
• Differences:
  • Terminology and Specific Tests: The legal tests differ (e.g., Japan's somei of the right to be preserved and the necessity for preservation vs. the U.S. multi-factor test including "likelihood of success" and "irreparable harm").
  • Ex Parte Practice: While Japanese provisional attachment often proceeds with initial secrecy for effectiveness, the subsequent hozen igi (objection) provides an adversarial hearing. The U.S. has strict limits on ex parte TROs and requires a prompt hearing for preliminary injunctions.
  • Scope of Kari-Shobun to Determine Provisional Status: This Japanese remedy can be very broad and flexible, allowing courts to craft bespoke interim orders for complex ongoing relationships, perhaps more so than typical U.S. preliminary injunctions, though U.S. courts also have considerable equitable discretion.
  • Pre-judgment Attachment/Garnishment (U.S.): While available for monetary claims in the U.S., these are largely governed by state law and subject to stringent constitutional due process requirements (notice and hearing), particularly after landmark Supreme Court cases. Japan's kari-sashiosae for monetary claims, often granted swiftly based on written submissions and with initial secrecy to prevent asset flight, reflects a different procedural balance, though the debtor has post-order remedies.

VIII. Conclusion

Provisional remedies—provisional attachment (kari-sashiosae) for monetary claims, and the two types of provisional dispositions (kari-shobun) for non-monetary claims or status regulation—are indispensable and powerful tools in the arsenal of any litigant in Japan. They provide the means to safeguard the potential fruits of a successful lawsuit by preventing an opponent from rendering a future judgment ineffective through asset dissipation or alteration of the disputed subject matter.

However, obtaining these remedies is not a mere formality. It requires a credible prima facie showing of both the underlying right and the genuine necessity for such interim protection. Furthermore, the almost universal requirement for the applicant to provide substantial security underscores the courts' concern for protecting the respondent from potential harm caused by a wrongfully issued provisional order. For businesses involved in or contemplating civil litigation in Japan, a keen understanding of when and how to strategically utilize these provisional measures, as well as how to defend against them if sought by an opponent, is a critical component of effective legal strategy and risk management.