What is a "Future Performance Action" in Japan and When Can It Be Filed?

In the realm of civil litigation, lawsuits typically address rights that have already matured or damages that have already been incurred. However, Japanese law recognizes that circumstances can arise where waiting for an obligation to become due before seeking judicial relief would be impractical, inefficient, or could even jeopardize a party's ability to ever realize their rights. For such situations, Japanese civil procedure offers a specific, albeit stringently controlled, mechanism: the "Action for Future Performance," or Shōrai kyūfu no uttae (将来の給付の訴え). This allows a plaintiff to seek a court judgment compelling performance of an obligation that will only fall due in the future, provided a genuine "necessity for an advance claim" can be demonstrated.

I. The Concept and Rationale of "Future Performance Actions" (Shōrai kyūfu no uttae) in Japan

A. Defining Future Performance: Beyond Presently Matured Obligations

An Action for Future Performance is a lawsuit where the plaintiff seeks a judgment ordering the defendant to render a specific performance (typically payment of money, but sometimes other acts) at a future date or in future installments, as those obligations become due according to an existing legal relationship (e.g., a contract). This contrasts with a standard action for performance, which deals with obligations already in default.

B. Legal Basis: Article 135 of the Code of Civil Procedure (Minji Soshō Hō 民事訴訟法第135条)

The statutory foundation for this type of action is Article 135 of the Code of Civil Procedure, which succinctly states:
"An action seeking future performance may be filed only when there is a need to make such a claim in advance."
(原文：「将来の給付を求める訴えは、あらかじめその請求をする必要がある場合に限り、提起することができる。」)

This "need to make such a claim in advance" (arakajime sono seikyū o suru hitsuyō ga aru baai あらかじめその請求をする必要がある場合) is the critical threshold that a plaintiff must meet.

C. Core Objectives and Rationale

The primary objectives for allowing future performance actions, despite the general principle that courts adjudicate present disputes, include:

1. Judicial Economy and Efficiency: To avoid a multiplicity of lawsuits. If a party is likely to default on a series of future obligations stemming from the same underlying cause, allowing a single action for all anticipated performances is more efficient than requiring separate lawsuits as each obligation matures.
2. Effective Protection of Rights: To provide meaningful relief where a plaintiff's ability to realize their future rights is genuinely threatened. Waiting for each breach might allow a debtor to become insolvent or dissipate assets.
3. Pre-emptive Dispute Resolution: In some cases, it can force an early clarification of disputed ongoing obligations, preventing further accumulation of breaches.
4. Securing Claims Against Future Uncertainty: It offers a way to obtain an enforceable title (saimu meigi 債務名義) for future obligations when there's a high probability of non-performance.

II. Deciphering the Crucial Prerequisite: "Necessity for Advance Claim" (Arakajime sono seikyū o suru hitsuyō ga aru baai)

This is the gatekeeping requirement and is interpreted strictly by Japanese courts. A mere subjective fear or general concern about potential future non-performance is insufficient. The plaintiff must demonstrate objective circumstances that create a genuine and pressing need for a judgment covering future obligations.

A. The High Bar for Justification

Courts are cautious because:

• A claim for future performance can be seen as premature if the defendant might yet perform when the time comes.
• It could unfairly burden a defendant by forcing them to litigate obligations not yet due.
• Circumstances might change before the future performance is due, rendering the advance judgment inappropriate.

Therefore, the "necessity" must be substantial and clearly evidenced.

B. Key Judicial Considerations in Assessing "Necessity"

Courts look for concrete indicators that an advance judgment is indispensable for the plaintiff's rights protection. Common factors include:

1. Defendant's Unequivocal Refusal to Perform Future Obligations or Dispute of the Underlying Obligation:
   • If the defendant has explicitly stated they will not honor future commitments under an existing contract, or if they fundamentally dispute the validity or terms of the contract giving rise to those future obligations, this strongly indicates a "necessity." The court will not require the plaintiff to wait for inevitable defaults.
   • For example, if a lessee under a long-term lease declares they consider the lease invalid and will make no further rent payments, the lessor might have grounds to sue for all future rent under the lease term. (See, e.g., conceptually similar reasoning in cases regarding repudiation of contract).
2. Pattern of Past Defaults Indicating a High Probability of Future Non-Compliance:
   • This is particularly relevant for periodic obligations like rent, loan installments, or royalty payments. If a defendant has a consistent history of defaulting on current or past payments arising from the same legal relationship, and offers no credible assurance of future compliance, courts may infer a high probability of future defaults.
   • Illustrative Case (Conceptual): A company has a five-year equipment lease requiring monthly payments. The lessee defaults on the first three payments, provides no explanation, and their financial situation appears precarious. The lessor might successfully sue for the remaining future lease payments, demonstrating the "necessity" through the pattern of default and high risk of continued non-payment. The Supreme Court has considered the defendant's past conduct and attitude in similar contexts (e.g., Supreme Court, December 16, 1980, Minshu Vol. 34, No. 7, p. 913, though this case involved future installments of compensation, the principle of assessing future compliance based on past behavior is relevant).
3. Nature of the Obligation and Unreasonableness of Requiring Multiple Suits:
   • If the future obligations are numerous and occur frequently, requiring the plaintiff to file separate lawsuits for each instance of default would be excessively burdensome, costly, and contrary to judicial economy.
   • Example: A contract for daily deliveries of goods over a year, where the buyer defaults on initial payments and disputes the pricing for all future deliveries. Suing daily or weekly would be impractical.
4. Substantial Insecurity of the Plaintiff's Future Rights if Advance Judgment is Not Granted:
   • This involves a broader assessment of whether the plaintiff's ability to ever realize their future claims is seriously jeopardized without an immediate, comprehensive judgment. This might overlap with concerns about the defendant's deteriorating financial condition if coupled with other indicators of unwillingness to perform.

C. Contrasting Scenarios: When "Necessity" is Affirmed vs. Denied by Courts

• "Necessity" Likely Affirmed:
  • A tenant repeatedly fails to pay rent and explicitly states they will not pay future rent for the remaining lease term.
  • A borrower defaults on several loan installments and the lender discovers the borrower is actively trying to hide assets.
  • Parties to a long-term licensing agreement are in dispute over the fundamental calculation of royalties, and the licensee has stopped all payments and refuses future payments based on their interpretation.
• "Necessity" Likely Denied:
  • A tenant is one month late with rent for the first time due to a temporary banking issue but communicates their intent to pay and catch up.
  • A party to a long-term contract merely expresses general concerns about future economic conditions affecting their ability to perform, without any current default or repudiation.
  • The future obligation is contingent upon highly uncertain future events that are not within the defendant's control and have not yet occurred.

III. Scope of Claims: What Future Performances Can Be Demanded?

A. Predominance of Monetary Claims
The vast majority of successful future performance actions involve monetary obligations. This is because monetary payments are easily quantifiable and judgments for them are relatively straightforward to enforce as each installment becomes due.

• Common Examples: Future rent under a lease, future installment payments for goods or loans, future royalty payments, future payments under long-term service or supply agreements.
• Specificity Required: The claim must clearly specify the amounts and the future due dates or the basis for their calculation (e.g., "JPY X per month for Y months," or "Z% of net sales per quarter for the remaining term of the license").

B. Challenges with Non-Monetary Future Performance
Seeking future performance for non-monetary obligations (e.g., future delivery of unique goods, future provision of specific complex services) is significantly more challenging and less common.

• Difficulties in Specification: It can be very difficult to define with sufficient precision the exact nature and quality of future non-monetary acts in a way that allows for a clear court order and subsequent enforcement.
• Enforcement Complexity: Compelling specific future actions (other than payment) can involve complex enforcement mechanisms (like indirect compulsion - kansetsu kyōsei 間接強制) which may be less suited for obligations far off in the future or contingent on many variables.
• Comparison with Claims for Future Forbearance (Injunctions): A claim to stop a future wrongful act (an injunction - sashitome seikyū 差止請求) is inherently future-oriented. While distinct from an Article 135 action (which compels a positive future performance of an existing obligation), injunctions also deal with controlling future conduct and have their own specific requirements.

C. Defining the Time Horizon: How Far into the Future?
The period for which future performance can be claimed depends on the underlying legal relationship and the demonstration of "necessity."

• For fixed-term contracts (e.g., a lease), claims can potentially extend to the end of the remaining term if necessity is shown for that entire period.
• For obligations with no fixed end date (e.g., ongoing support services), defining a reasonable future period for which an advance judgment is "necessary" can be more complex and will be scrutinized by the court.

IV. Strategic Dimensions for Businesses Utilizing Future Performance Actions

Beyond mere judicial economy, future performance actions can serve important strategic purposes:

• Early Securing of Enforceable Rights: Obtaining an advance judgment allows a plaintiff to secure an enforceable title (saimu meigi) for future obligations. This can be crucial if there's a risk of the debtor's financial condition deteriorating or assets being dissipated before all obligations mature.
• Forcing Clarification of Disputed Ongoing Obligations: If a counterparty is ambiguous about their future intentions under a long-term contract or disputes its terms, a future performance action can compel them to clarify their position and can lead to a comprehensive judicial determination of the ongoing rights and duties.
• Deterrent Effect: A judgment for future performance can act as a strong deterrent against continued or future breaches by the defendant.
• Interaction with Other Remedies: A future performance claim might be combined with claims for presently due amounts, or sought alongside provisional remedies (like an order for provisional attachment - kari-sashiosae 仮差押え) if there's an immediate risk to asset recovery. It might also follow a declaratory action that has clarified future rights but not ordered their performance.

V. The Judgment and Its Enforcement

• Nature of the Judgment: A judgment granting future performance is typically conditional. It will order the defendant to perform the specified obligations (e.g., make payments) as and when each future due date arrives.
• Enforceability: The key practical benefit is that the single judgment for future performance can be used to initiate compulsory execution for each installment or future obligation as it becomes due and remains unpaid, without the need to file a new lawsuit each time. This significantly streamlines the enforcement process for a series of future defaults.
• Potential Impact of Changed Circumstances Post-Judgment (Jijō henkō no gensoku 事情変更の原則): Japanese law recognizes a very restrictive principle of "changed circumstances" that might, in extremely exceptional situations, allow for the modification or termination of contractual obligations (and by extension, potentially impact the enforcement of a judgment based on them). However, the threshold for invoking this principle to alter a final judgment ordering future performance is extraordinarily high, given the strong emphasis on the finality of judgments.

Conclusion

The Action for Future Performance (Shōrai kyūfu no uttae) in Japanese civil procedure is a specialized but valuable instrument for parties seeking to secure their rights to performances that are not yet due. Its utility is most pronounced in cases involving ongoing or periodic obligations where there is a demonstrable and pressing "necessity for an advance claim" due to the defendant's conduct or the nature of the dispute. While the conditions for bringing such an action are stringent, its successful use can offer businesses significant advantages in terms of judicial economy, pre-emptive rights protection, and streamlined enforcement against anticipated future defaults. Strategic assessment of the "necessity" requirement, coupled with meticulous evidentiary preparation, is paramount for any business considering this proactive litigation tool in Japan.