What are "Formative Lawsuits" (Formationsklagen) in Japan and How Are Their Court Fees Determined?

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read

Japanese civil procedure, like many other legal systems, categorizes lawsuits based on the nature of the relief sought by the plaintiff. Beyond claims for performance (e.g., payment of a debt) and declaratory actions (seeking confirmation of a legal fact), lies a distinct and powerful category: "formative lawsuits" (形成の訴え - keisei no uttae). These actions are unique in that they aim to directly create, alter, or extinguish a legal right or relationship through the very act of the court's judgment. Understanding their nature is crucial, not least because the method for determining the "value of suit" (訴額 - so'gaku) for court fee calculation often follows specific rules tailored to their transformative effect.

The defining characteristic of a formative lawsuit is that the judgment itself is constitutive; it brings about a change in the legal landscape. The plaintiff in such an action typically asserts a "right to form" (形成権 - keiseiken) or a "formative requirement" (形成要件 - keisei yōken) provided by substantive law. If the court finds in favor of the plaintiff, the resulting judgment doesn't merely order a party to do something or declare an existing state of affairs—it actively modifies the legal reality.

For instance:

  • A judgment of divorce does not simply declare that grounds for divorce exist; it dissolves the marriage itself.
  • A judgment annulling a fraudulent contract does not just confirm the fraud; it invalidates the contract.
  • A judgment permitting a specific corporate action, or annulling one, directly impacts the legal status of that action.

This power to effect direct legal change distinguishes formative lawsuits from performance actions, which enforce existing rights, and declaratory actions, which clarify existing rights or relationships without altering them.

Categorization and Examples of Formative Lawsuits in Japan

Formative lawsuits in Japan can be broadly categorized based on whether they primarily concern property rights or non-property rights. This distinction is fundamental to how their "value of suit" is assessed for court fee purposes.

These lawsuits predominantly involve changes to personal status or fundamental family relationships, where assigning a direct monetary value to the subject matter is inherently difficult or inappropriate.

  • Family Law: This is a major area for non-property formative actions. Examples include:
    • Lawsuits for divorce (離婚の訴え - rikon no uttae).
    • Lawsuits for the annulment or rescission of a marriage (婚姻の取消しの訴え - kon'in no torikeshi no uttae).
    • Lawsuits to disavow or deny paternity (嫡出否認の訴え - chakushutsu hinin no uttae).
    • Lawsuits for the acknowledgment/recognition of paternity (認知の訴え - ninchi no uttae).
    • Lawsuits to annul or revoke a prior acknowledgment of paternity (認知の無効・取消しの訴え - ninchi no mukō / torikeshi no uttae).
      The "value" in these cases is not primarily economic but relates to fundamental personal and familial statuses.

These actions, while still creating or altering legal relationships, do so in a context that has more direct or indirect economic and property implications. Examples relevant to commercial and business contexts include:

  • Corporate Law:
    • Lawsuits to annul or declare void resolutions made at shareholder or board meetings (e.g., 株主総会決議取消しの訴え - kabunushi sōkai ketsugi torikeshi no uttae).
    • Lawsuits seeking the dismissal of a company director for cause (取締役解任の訴え - torishimariyaku kainin no uttae).
  • Enforcement Law:
    • Claim Objection Lawsuits (請求異議の訴え - seikyū igi no uttae): Filed by a debtor to extinguish or modify the enforceability of an existing instrument of obligation, such as a final and binding judgment, a notarial deed with an execution clause, or a settlement reached in court. This suit seeks a formative judgment declaring that the execution based on that specific title is not (or no longer) permissible.
    • Third-Party Objection Lawsuits (第三者異議の訴え - daisansha igi no uttae): When a creditor attempts to enforce a judgment against a debtor by seizing property that actually belongs to a third party, that third party can file this formative lawsuit. It seeks a judgment declaring the execution against that specific property impermissible, thereby releasing it from seizure.
  • Historically Illustrative Example (Real Property):
    • Lawsuits by mortgagees to terminate certain short-term leases (短期賃貸借解除請求の訴え - tanki chintaishaku kaijo seikyū no uttae) that encumbered a mortgaged property and could prejudice the mortgagee's rights upon foreclosure. This type of claim became largely obsolete after a 2003 legal reform abolished the general system of short-term leases having special protection against mortgagees, but for leases established before the reform and still existing under transitional provisions, such actions might theoretically still arise. The judgment here would formatively extinguish the lease.

Determining the "Value of Suit" (So'gaku) for Court Fee Calculation

The method for calculating the so'gaku for a formative lawsuit depends heavily on whether it falls into the non-property or property-related category.

Given the difficulty of assigning a monetary value to changes in personal status, Japanese law employs a system of "deemed values" for these types of lawsuits:

  • Jurisdictional Value of Suit (管轄訴額 - kankatsu so'gaku): For the purpose of determining which court has initial jurisdiction (e.g., District Court vs. Summary Court, though family law matters have specialized Family Court jurisdiction), the value of a non-property related formative claim is deemed to exceed ¥1,400,000, as per Article 8(2), first part, of the Code of Civil Procedure.
  • Court Fee Value of Suit (手数料訴額 - tesūryō so'gaku): For calculating the actual court filing fees, Article 4(2), first part, of the Civil Procedure Costs Act (民事訴訟費用等に関する法律 - Minji Soshō Hiyō tō ni Kansuru Hōritsu) stipulates that the so'gaku for a non-property related claim is deemed to be ¥1,600,000. This standardized figure then corresponds to a specific tier in the court fee schedule.

This approach ensures a uniform basis for fees in matters where economic valuation is not the primary concern.

For formative lawsuits that do concern property rights, the general principle is that the so'gaku is based on the economic benefit or interest the plaintiff stands to gain from the formative judgment. However, quantifying this benefit can be complex.

  • When Plaintiff's Benefit is "Extremely Difficult to Calculate": If the economic benefit, while real, is exceptionally challenging to determine with any reasonable precision, Japanese law again provides a fallback:
    • The jurisdictional so'gaku is deemed to exceed ¥1,400,000 (Code of Civil Procedure, Art. 8(2), latter part).
    • The court fee so'gaku is deemed to be ¥1,600,000 (Civil Procedure Costs Act, Art. 4(2), latter part).
  • Valuing the Plaintiff's Benefit in Specific Cases: Where the benefit can be reasonably assessed, that assessed value becomes the so'gaku. The methods vary widely depending on the specific type of formative action:
    • Challenges to Corporate Resolutions: While these actions affect shareholder rights (which are property rights), practical guidelines (such as So'gaku Notifications) often lead to them being treated as non-property claims for fee calculation purposes, resulting in the deemed ¥1,600,000 so'gaku. This is largely for reasons of expediency in fee assessment, given the potential complexities of valuing the precise impact of a resolution's annulment on each individual shareholder or the company as a whole.
    • Claim Objection Suits (請求異議の訴え): The plaintiff (debtor) seeks to prevent or limit the enforcement of a monetary claim. The benefit to the plaintiff is the amount of the debt obligation they are trying to avoid. Therefore, the so'gaku for a claim objection suit is generally the amount of the claim specified in the instrument of obligation (e.g., the judgment debt) whose enforcement is being challenged. (Detailed calculations for these suits, including when only partial objection is raised, are covered in dedicated discussions on enforcement-related litigation).
    • Third-Party Objection Suits (第三者異議の訴え): The plaintiff (a third party) seeks to protect their property from wrongful execution. Their benefit is the preservation of their property. The so'gaku is typically the value of the seized property that the third party is claiming, but it is capped by the amount of the creditor's claim being executed if the property's value exceeds that claim. (Again, specifics are found in more focused discussions on such suits).
    • Historical Example (Termination of Short-Term Leases): For the now largely historical actions by mortgagees to terminate prejudicial short-term leases, the plaintiff's benefit was the avoidance of the diminution in the mortgaged property's value caused by the lease. Practically, this was often calculated as a fraction (e.g., one-half, by analogy to valuing a leasehold itself) of the encumbered property's objective value, but no more than the outstanding amount of the secured mortgage debt. This example illustrates how courts or practitioners might monetize the "benefit" of a formative judgment.

The Court's Role in Determining So'gaku for Formative Actions

While deemed values provide a clear path for non-property actions and for property actions where benefit calculation is exceptionally hard, for many other property-related formative suits, the court retains a significant role. If the plaintiff's stated so'gaku (and thus the tendered court fee) for a property-related formative action is challenged or appears questionable, the presiding judge or the court will ultimately determine the appropriate value based on the specific facts and the nature of the legal change sought. This involves assessing the tangible economic advantage the plaintiff seeks to secure through the formative power of the court's judgment.

Conclusion

Formative lawsuits (keisei no uttae) represent a potent form of judicial relief in Japan, capable of directly reshaping legal rights and relationships. The calculation of their "value of suit" for court fee purposes reflects their distinct nature. Non-property related formative actions are assigned a standardized deemed value, simplifying fee assessment for matters of personal status. Property-related formative actions, in contrast, require an assessment of the plaintiff's economic benefit from the desired legal transformation. While this can be complex, leading to a deemed value if quantification is exceptionally difficult, the system strives to link the so'gaku to the tangible impact of the judgment. For businesses and legal professionals operating in Japan, understanding this framework is essential for anticipating litigation costs and strategically approaching disputes where the creation, alteration, or extinguishment of legal relationships is at stake.