What is a "Future Performance Action" (将来の給付の訴え) in Japan, and When Can My Business Use It?

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

Typically, lawsuits are initiated to address obligations that are already due and unpaid, or to remedy harms that have already occurred. However, Japanese civil procedure, under specific circumstances, allows a plaintiff to seek a judgment for performance that is not yet due. This is known as an "Action for Future Performance," or Shōrai kyūfu no uttae (将来の給付の訴え). This specialized type of action can be a powerful tool for businesses seeking to preemptively secure rights, ensure long-term compliance, or avoid the inefficiency of repeated litigation for ongoing obligations. Understanding its strict requirements and strategic applications is key to leveraging this unique procedural remedy.

I. Understanding "Future Performance Actions" (Shōrai kyūfu no uttae) in Japan

A. Definition and Purpose

An Action for Future Performance is a lawsuit in which the plaintiff requests a court judgment ordering the defendant to render a performance that will only become due at some point in the future. This could involve future monetary payments under a continuing contract, future installments of a debt, or other obligations whose performance date has not yet arrived.

The primary purposes of allowing such actions are:

  • Preventing Repeated Litigation: It avoids the need for a plaintiff to file multiple lawsuits each time a periodic obligation (like monthly rent or installment payments) becomes due and is not met.
  • Ensuring Effective Protection of Rights: It provides a mechanism to secure a legal right before a series of anticipated breaches fully materializes, especially when the defendant has already demonstrated an unwillingness or inability to perform.
  • Promoting Judicial Economy: It allows for a more comprehensive resolution of disputes arising from ongoing or future obligations in a single proceeding.

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

The cornerstone of Actions for Future Performance in Japan is Article 135 of the Code of Civil Procedure (Minji Soshō Hō 民事訴訟法), which 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 provision establishes that such actions are exceptional and are only permissible if a specific "need for advance claim" can be demonstrated by the plaintiff.

C. Distinction from Claims for Presently Due Performance

The key difference lies in the timing of the obligation. Regular actions for performance deal with obligations that are currently due. Future performance actions address obligations that will mature later. Because suing for a performance not yet due could potentially be premature or unfairly burden the defendant (who might intend to perform when the time comes), the law imposes the stringent "need for advance claim" requirement to justify such preemptive litigation.

II. The Crucial Requirement: "Need for Advance Claim" (「あらかじめその請求をする必要がある場合」 - Arakajime sono seikyū o suru hitsuyō ga aru baai)

This phrase, 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 linchpin for the admissibility of a future performance action. Its interpretation by the courts is strict and fact-dependent. A mere subjective fear of future non-performance is insufficient.

A. Interpretation of the "Need"

Courts generally require objective circumstances indicating that without an advance judgment, the plaintiff's right to future performance is likely to be frustrated or that compelling the plaintiff to wait until each future performance becomes due before suing would be unduly burdensome or impractical. The "need" must be concrete and demonstrable at the time of the oral proceedings.

B. Factors Considered by Courts in Determining "Need"

While not an exhaustive list, courts often consider the following factors:

  1. Debtor's Express Refusal to Perform (Saimusha no meikaku na rikō kyozetsu 債務者の明確な履行拒絶):
    If the debtor has unequivocally stated that they will not perform future obligations, this can be strong evidence of the "need." This is akin to an anticipatory breach in some respects.
  2. History of Defaults and High Probability of Future Defaults (過去の不履行と将来の不履行の蓋然性 - Kako no furikō to shōrai no furikō no gaizen-sei):
    This is particularly relevant for periodic obligations. If a debtor has repeatedly defaulted on past installments (e.g., rent, loan payments, royalties) under an ongoing contract, and there is no indication of a change in their ability or willingness to pay, the court may find a high probability of future defaults, justifying an advance claim. For example, in a Supreme Court judgment on December 16, 1980 (Minshu Vol. 34, No. 7, p. 913), relating to future installments of a compensation claim, the court considered the debtor's past payment history and attitude.
  3. Defendant's Dispute of the Underlying Obligation Itself (被告による基礎となる義務自体の争い):
    If the defendant is not merely defaulting on payments but is fundamentally disputing the existence or validity of the contract or obligation from which future performances arise, it strongly suggests that future performances will also be contested and withheld. In such cases, a future performance action can resolve the underlying dispute and secure judgment for future claims simultaneously.
  4. Nature of the Obligation and Impracticality of Repeated Litigation (債務の性質と反復訴訟の非実用性):
    If the obligations are numerous and arise frequently (e.g., daily or weekly deliveries under a long-term contract), forcing the plaintiff to sue separately for each instance of non-performance would be highly inefficient and burdensome.
  5. Risk of Debtor's Insolvency or Dissipation of Assets (債務者の無資力化または資産散逸のリスク):
    While not always a primary factor on its own for establishing the "need" for the claim itself (as prejudgment attachment might be a more direct remedy for asset preservation), if other factors suggesting future non-performance are present, the risk of the debtor becoming judgment-proof by the time future obligations mature could support the argument for an advance claim.

C. Case Law Insights

Japanese case law provides guidance:

  • Recognized "Need":
    • A landlord suing for future rent payments from a tenant who has consistently defaulted, disputes the lease, and shows no intention of vacating or paying.
    • Claims for future installments of damages awarded for an ongoing tort, where the defendant's liability for the recurring damage is established.
    • A party to a long-term supply contract where the counterparty has defaulted on initial deliveries and repudiated the entire contract.
  • "Need" Likely Denied:
    • A mere apprehension that a financially stable debtor might default in the distant future without any current breach or repudiation.
    • Where the future obligation is conditional on uncertain future events not yet fulfilled.
    • If the defendant, despite a minor past default, provides credible assurances of future performance.

III. Types of Future Performance Claims Relevant to Businesses

Actions for future performance most commonly involve monetary obligations arising from ongoing contractual relationships.

A. Monetary Obligations Arising from Continuing Contracts:

  1. Future Rent Payments under Lease Agreements (Chintaishaku keiyaku ni motozuku shōrai no chinryō 賃貸借契約に基づく将来の賃料): If a tenant is in arrears and circumstances indicate continued non-payment for the remainder of the lease term (e.g., they dispute the lease's validity or have abandoned the premises), a landlord might sue for all future rent up to the end of the lease term.
  2. Future Installment Payments (Shōrai no bunkatsu-kin 将来の分割金):
    • Sales Contracts: If a buyer defaults on early installments for goods purchased on credit and indicates an unwillingness to make future payments.
    • Loan Agreements: If a borrower defaults on several loan repayments and their overall financial situation or conduct makes future repayments highly improbable.
  3. Future Royalty Payments under License Agreements (Raisensu keiyaku ni motozuku shōrai no roiyaruti ライセンス契約に基づく将来のロイヤルティ): If a licensee is obligated to make periodic royalty payments based on sales or usage, and they dispute the calculation method or the underlying license validity, leading to current and anticipated future non-payment.
  4. Future Payments under Long-Term Supply or Service Agreements (Chōki kyōkyū keiyaku sābisu keiyaku ni motozuku shōrai no shiharai 長期供給契約・サービス契約に基づく将来の支払い): In contracts requiring ongoing services or deliveries with periodic payments, if the recipient defaults and disputes the contract, the provider might seek judgment for future payments linked to their continuing obligations.

B. Non-Monetary Obligations (with limitations)

While theoretically possible, seeking future performance for non-monetary obligations (e.g., future delivery of goods, future provision of services) is less common and faces greater hurdles, primarily due to:

  • Specificity: It can be difficult to define future non-monetary performance with sufficient precision for a court order.
  • Enforcement Challenges: Compelling specific future actions (other than payment) can be complex.
  • The "Need" Requirement: Demonstrating the "need" for an advance order for a specific future act (as opposed to payment) might be harder unless the refusal is exceptionally clear and the consequences dire.

Claims for future forbearance (an obligation not to do something, i.e., a future negative obligation) are typically handled through actions for injunction (sashitome seikyū 差止請求), which by their nature address future conduct. While conceptually related, they are usually not framed as "future performance actions" under Article 135, as an injunction inherently seeks to prevent future wrongs.

IV. Scope and Specificity of the Claim and Judgment

A. Defining the Period of Future Performance
The plaintiff must clearly state the period for which future performance is sought (e.g., "rent payments from June 2025 through May 2026"). The court will assess whether the "need" extends to the entire requested period.

B. Conditions in the Judgment
A judgment ordering future performance will typically be conditional. For monetary payments, it will state that the defendant is to pay a certain sum when each respective due date arrives. For example, "The defendant shall pay the plaintiff JPY X on the last day of each month from July 2025 until June 2026."

C. Principle of Changed Circumstances (Jijō henkō no gensoku 事情変更の原則)
While Japanese law recognizes a very restrictive doctrine of changed circumstances that can, in extremely rare cases, allow for modification or termination of contractual obligations, applying this to alter a final judgment for future performance is exceptionally difficult. The finality of judgments (res judicata) is a strong principle.

V. Enforcement of Judgments for Future Performance

A key advantage of obtaining a judgment for future performance is its enforceability.

  • The single judgment serves as an enforceable title of obligation (saimu meigi 債務名義) for all the future performances it covers.
  • As each future obligation matures (e.g., a monthly rent payment becomes due) and if the defendant fails to pay, the plaintiff can initiate compulsory execution for that specific overdue portion based on the existing judgment, without needing to file a new lawsuit.
    This streamlines the enforcement process for ongoing defaults.

VI. Strategic Considerations for Businesses

  • When to Consider a Future Performance Action:
    • To achieve early and comprehensive resolution of disputes involving ongoing or future obligations.
    • To avoid the cost and effort of repeated lawsuits for each maturing obligation.
    • To mitigate risks associated with a counterparty who has demonstrated clear unwillingness or inability to perform future duties, potentially pre-empting further losses or the counterparty's insolvency.
  • Gathering Evidence for "Need": This is critical. Businesses must diligently collect and preserve evidence demonstrating the defendant's refusal, history of defaults, repudiation of the contract, or other circumstances that clearly establish the "need for advance claim."
  • Balancing Benefits with Procedural Hurdles: While strategically valuable, successfully litigating a future performance action requires overcoming the significant evidentiary burden of proving the "need."
  • Alternative: Declaratory Action: In some cases where future performance itself is uncertain but clarification of the underlying right is paramount, a declaratory action might be an alternative or preceding step.

Conclusion

The Action for Future Performance (Shōrai kyūfu no uttae) offers a unique procedural avenue in Japan for businesses to proactively address anticipated breaches of ongoing or future obligations. While its stringent "need for advance claim" requirement necessitates careful preparation and robust evidence, a successful action can provide significant benefits in terms of judicial economy, effective rights protection, and streamlined enforcement. For businesses involved in long-term contracts or facing counterparties whose future compliance is seriously in doubt, this type of action, though exceptional, warrants careful consideration as part of a comprehensive legal strategy in Japan.