What Are the Specific Grounds for Requesting a Retrial (Saishin) in Japanese Civil Cases?
In our previous discussion, we outlined Saishin (再審), or retrial, as an extraordinary and highly circumscribed remedy in Japanese civil procedure for challenging a judgment that has already become final and binding. Unlike an appeal, which addresses errors before a judgment achieves finality, Saishin seeks to overturn a finalized judgment due to fundamental flaws that undermine its very legitimacy. The availability of this remedy hinges entirely on the existence of one or more specific, statutorily defined grounds.
This article provides a detailed examination of these grounds for retrial as exhaustively enumerated in Article 338, Paragraph 1 of Japan's Code of Civil Procedure (CCP) (民事訴訟法 - Minji Soshō Hō), highlighting their narrow construction and the demanding requirements for each.
I. The Principle of Enumerated Grounds: No Room for General "Unfairness"
It is paramount to understand that the grounds for Saishin listed in CCP Article 338(1) are exclusive and exhaustive. Japanese courts cannot grant a retrial for reasons not specified in this article, no matter how compelling a case for general "unfairness" or "injustice" might otherwise seem. This strict adherence to enumerated grounds reflects the strong legal policy favoring the finality and stability of judgments (res judicata). Each ground points to a serious defect suggesting the original judgment was not the product of a fair, reliable, or legitimate judicial process.
II. Defects in the Judicial Body or Representation
These grounds concern fundamental flaws in the constitution of the court or the representation of a party:
A. Unlawful Constitution of the Court (CCP Art. 338(1)(i))
(法律に従って判決裁判所を構成しなかったこと - hōritsu ni shitagatte hanketsu saibansho o kōsei shinakatta koto)
This ground applies if the court that rendered the original judgment was not lawfully constituted. This refers to fundamental defects in its formation, such as having an incorrect number of judges for that type of court panel as prescribed by law, or if a person sat as a judge who lacked the basic legal qualifications to do so. It does not typically cover mere errors in case assignment within a properly constituted court or issues of venue (territorial jurisdiction).
B. Participation of a Disqualified Judge (CCP Art. 338(1)(ii))
(法律により判決に関与することができない裁判官が判決に関与したこと - hōritsu ni yori hanketsu ni kan'yo suru koto ga dekinai saibankan ga hanketsu ni kan'yo shita koto)
A retrial may be sought if a judge who was legally disqualified from participating in the judgment under the CCP (e.g., due to a close familial relationship with a party, a direct financial interest in the outcome, or having previously been involved in the case in a different capacity such as a witness or prior counsel – see CCP Arts. 23 & 24 for grounds of exclusion and disqualification) nevertheless participated in rendering the judgment. The party seeking retrial typically must not have known of the disqualification ground during the original proceedings or failed to raise it without negligence.
C. Lack of Necessary Legal Representation or Authorization (CCP Art. 338(1)(iii))
(法定代理権、訴訟代理権又は代理人が訴訟行為をするのに必要な授権を欠いたこと（当該訴訟代理人又は代理人がした訴訟行為の追認があった場合を除く。） - hōtei dairiken, soshō dairiken mata wa dairinin ga soshō kōi o suru no ni hitsuyō na juken o kaita koto (tōgai soshō dairinin mata wa dairinin ga shita soshō kōi no tsuinin ga atta baai o nozoku))
This covers situations where:
- A party who lacked litigation capacity (e.g., a minor, an adult under guardianship) was not represented by a valid legal representative (e.g., guardian).
- A lawsuit agent (attorney) purported to act for a party but lacked the necessary power of attorney, or acted beyond the scope of their specific authorization for critical litigation acts (such as waiving a claim, acknowledging a claim, or withdrawing an action, which require special authorization under CCP Art. 55(2)).
This ground is not available if the party subsequently ratified the unauthorized acts. This provision aims to protect parties from being bound by judgments resulting from proceedings where their legal representation was fundamentally flawed.
III. Criminal Acts Undermining the Integrity of the Judgment
A significant set of grounds for retrial involves criminal conduct that directly tainted the original judgment. For these (Items (iv) through (vii) below), CCP Article 338(2) imposes a critical prerequisite:
The "Criminal Conviction Requirement" (CCP Art. 338(2)):
An action for retrial based on these grounds can generally only be filed if the criminal act in question (e.g., bribery, perjury, forgery) has been established by a final and binding criminal judgment (a conviction or a non-penal fine), OR if it is proven that such a criminal judgment could not be obtained for reasons other than a lack of evidence (e.g., the perpetrator died before conviction, the criminal statute of limitations expired, but the act itself is still provable in the retrial action). This requirement makes these grounds exceptionally difficult to successfully invoke.
A. Crime by a Participating Judge (CCP Art. 338(1)(iv))
(判決に関与した裁判官が事件について職務に関する罪を犯したこと - hanketsu ni kan'yo shita saibankan ga jiken ni tsuite shokumu ni kansuru tsumi o okashita koto)
If a judge who participated in rendering the original judgment committed a crime in relation to their official duties concerning that specific case (e.g., accepting a bribe to influence the decision, deliberate falsification of the record for a corrupt purpose).
B. Obstruction or Criminal Inducement Affecting a Party's Conduct (CCP Art. 338(1)(v))
(当事者が相手方の妨害行為（当該当事者の訴訟代理人の妨害行為を含む。）により攻撃又は防御の方法を提出することを妨げられたこと。又は刑事上罰すべき他人の行為により、自白をするに至ったこと若しくは判決に影響を及ぼすべき攻撃若しくは防御の方法を提出することを妨げられたこと - tōjisha ga aitekata no bōgai kōi (tōgai tōjisha no soshō dairinin no bōgai kōi o fukumu.) ni yori kōgeki mata wa bōgyo no hōhō o teishutsu suru koto o samatagerareta koto. mata wa keijijō bassubeki tanin no kōi ni yori, jihaku o suru ni itatta koto mata wa hanketsu ni eikyō o oyokosubeki kōgeki mata wa bōgyo no hōhō o teishutsu suru koto o samatagerareta koto)
This item has two prongs:
- A party was prevented from submitting a means of attack or defense that would have been material to the judgment due to an obstructive act by the opposing party (including the opponent's lawsuit agent).
- A party was, due to a criminally punishable act committed by another person (e.g., the opposing party or a third party):
- Led to make a confession (自白 - jihaku).
- Prevented from submitting a means of attack or defense that would have been material to the judgment.
Examples could include being forced into a false admission through duress, or being fraudulently induced to withhold crucial evidence.
C. Forged or Altered Decisive Evidence (CCP Art. 338(1)(vi))
(判決の証拠となった文書その他の物件が偽造又は変造されたものであったこと - hanketsu no shōko to natta bunsho sonota no bukken ga gizō mata wa henzō sareta mono de atta koto)
If a document or other physical object that was used as evidence in the original judgment, and upon which the judgment was decisively based, is proven to have been forged or altered.
D. Perjured Testimony or False Expert Opinion/Interpretation (CCP Art. 338(1)(vii))
(証人、鑑定人、通訳人若しくは宣誓した当事者若しくは法定代理人の虚偽の陳述又はこれらの者以外の技術専門家（第九十二条の八に規定する技術専門家をいう。）の虚偽の意見の陳述が判決の証拠となったこと - shōnin, kanteinin, tsūyakunin moshikuwa sensei shita tōjisha moshikuwa hōtei dairinin no kyogi no chinjutsu mata wa korera no mono igai no gijutsu senmonka (dai kyūjūni jō no hachi ni kitei suru gijutsu senmonka o iu.) no kyogi no iken no chinjutsu ga hanketsu no shōko to natta koto)
If the false statement under oath of a witness, an expert witness (kanteinin), an interpreter, or (in specific instances where they can be examined under oath with implications of perjury) a party or their legal representative, was used as evidence and was decisive to the judgment. This also includes false statements by technical advisors appointed under certain new provisions.
IV. Subsequent Alteration of the Judgment's Basis
A. Change in Underlying Judgment or Administrative Disposition (CCP Art. 338(1)(viii))
(判決の基礎となった民事若しくは刑事の判決その他の裁判又は行政処分が、その後の裁判又は行政処分により変更されたこと - hanketsu no kiso to natta minji moshikuwa keiji no hanketsu sonota no saiban mata wa gyōsei shobun ga, sono go no saiban mata wa gyōsei shobun ni yori henkō sareta koto)
This ground applies if a prior civil or criminal judgment, or an administrative disposition, which formed an essential legal or factual basis for the challenged judgment, has itself been subsequently altered or overturned by a later final and binding judgment or administrative disposition.
- Example: Judgment A in a contract dispute relies heavily on the finding in a separate Judgment B (e.g., a criminal judgment establishing fraud related to the contract). If Judgment B is later definitively overturned through its own appeal or retrial, then Judgment A, whose foundation has crumbled, may become subject to retrial.
V. Defects in the Judgment Itself
A. Omission of Judgment on a Material Point (Handan Itsudatsu) (CCP Art. 338(1)(ix))
(判決に影響を及ぼすべき重要な事項について判断遺脱があったこと - hanketsu ni eikyō o oyokosubeki jūyōna jikō ni tsuite handan itsudatsu ga atta koto)
A retrial may be sought if the original judgment completely failed to make a judicial determination on a material part of the soshōbutsu (subject matter of litigation) that was properly pleaded by the plaintiff, or on a critical affirmative defense that was properly raised by the defendant, and this omission should have affected the overall outcome of the judgment.
- This is not about the reasoning being insufficient or unpersuasive on a point that was decided; it refers to a complete failure to adjudicate a presented, essential component of the claim or defense.
- The Supreme Court judgment of February 13, 1975 (First Petty Bench, Minshū Vol. 29, No. 2, Page 141) provides important guidance on the scope of "omission of judgment," generally limiting it to claims or defenses that should have been reflected in the operative part (main text) of the judgment. It must be an omission that, had it been decided, could have led to a different overall conclusion.
B. Conflict with a Prior Final Judgment (CCP Art. 338(1)(x))
(前に確定した判決（第三百四十八条第一項ただし書に規定する場合にあっては、同項の規定により原判決を取り消す判決）と抵触すること - mae ni kakutei shita hanketsu (...) to teishoku suru koto)
This applies if the challenged final judgment conflicts with a prior final and binding judgment that has res judicata effect between the same parties (or their privies) concerning the same soshōbutsu. This addresses the rare but problematic situation where, despite the principle of res judicata, an inconsistent later judgment is somehow rendered and also becomes final. The action for retrial can then be brought against the later conflicting judgment.
VI. The "Materiality" Requirement for Certain Grounds
For several of the grounds listed in Article 338(1) (particularly those involving procedural inducements, false evidence, or omission of judgment – e.g., Items (v), (vi), (vii), and (ix)), it is not enough for the party seeking retrial to merely demonstrate the existence of the defect. They must also typically show that this defect was material to the original judgment – meaning that if the defect had not occurred, a different judgment might plausibly have been rendered in the original action. This "materiality" or "decisiveness" element is often explicitly mentioned in the wording of the grounds themselves (e.g., "decisive to the judgment," "should have affected the judgment").
VII. Conclusion: A High Bar for an Extraordinary Remedy
The specific grounds for requesting a retrial (saishin) in Japanese civil cases, as exhaustively enumerated in CCP Article 338(1), are meticulously defined and, in practice, very narrowly construed by the courts. They are not intended to provide a general avenue for re-arguing a lost case or for correcting ordinary judicial errors based on a party's dissatisfaction with the outcome.
The legislator has deliberately established a high threshold for this extraordinary remedy. This is particularly evident in the common prerequisite of a final criminal conviction (or proof of the impossibility of obtaining one for reasons other than lack of evidence) for several grounds related to criminal acts like perjury or forgery that may have influenced the original judgment. This requirement, combined with strict time limits for filing a saishin action, ensures that the strong societal and legal interest in the finality and stability of judgments is not easily or frequently undermined.
Each statutory ground for saishin points to a severe and fundamental flaw that, if proven, suggests the original final judgment was not the product of a fair, reliable, or legitimate judicial process. Understanding these specific, narrow gateways is essential for any party contemplating the truly exceptional step of seeking to overturn a final and binding civil judgment in Japan through an action for retrial.