In the Japanese legal landscape, notarial deeds, known as kōsei shōsho (公正証書), stand as documents of significant legal weight and utility. Created by kōshōnin (公証人), who are specialized public officials, these instruments are not mere records but possess distinct legal effects, particularly in terms of their evidentiary power and, crucially for certain types of deeds, their capacity for direct enforcement of obligations. This article explores the legal efficacy of kōsei shōsho, focusing on their strength as evidence and their role as potential instruments for compulsory execution, a feature of considerable interest for securing claims.

The Evidentiary Power of Japanese Notarial Deeds

One of the primary functions and inherent strengths of a kōsei shōsho lies in its robust evidentiary power in legal proceedings. This power is twofold, encompassing both formal and substantive aspects.

Formal Evidentiary Power (Keishikiteki Shōkoryoku - 形式的証拠力)

As documents prepared by a kōshōnin—a public official acting within the scope of their duties—notarial deeds enjoy a strong presumption of authenticity. This is codified in Japan's Civil Procedure Code (Minji Soshōhō - 民事訴訟法), specifically Article 228, Paragraph 2, which stipulates that official documents are presumed to have been genuinely created.

This presumption means that a kōsei shōsho is, on its face, considered to be what it purports to be; it is presumed not to be forged or altered, and to have been validly executed by the notary. Consequently, if a party in a legal dispute wishes to challenge the genuineness of a notarial deed, the burden of proof rests squarely on them to demonstrate its falsity (e.g., through evidence of forgery or unauthorized alteration). This high threshold for challenging authenticity underscores the reliability attributed to documents prepared under the notary's official seal and supervision.

Substantive Evidentiary Power (Jisshitsuteki Shōkoryoku - 実質的証拠力)

Beyond the presumption of genuineness, a kōsei shōsho also carries substantive evidentiary power. If the authentic creation of the deed is established (which, as noted, is presumed), the deed then serves as proof of the declarations and statements made by the commissioning parties (shokutakunin - 嘱託人) before the notary, which the notary has dutifully recorded within the document. The notary's act of transcribing these declarations into an official deed solidifies the fact that such statements were indeed made by the parties.

However, an important limitation must be understood regarding this substantive power. While the kōsei shōsho irrefutably proves that the parties made the specific declarations recorded therein, it does not automatically or conclusively prove that the content of those declarations is factually true or corresponds to objective reality. The deed confirms the act of declaration itself, but the underlying truth or accuracy of what was declared may still be subject to further proof or challenge in a dispute. For instance, a notarial deed recording a loan agreement proves that the parties declared the terms of the loan, but not necessarily that the funds were actually disbursed if that becomes a point of contention.

The Significance of the Affixed Date (Kakutei Hizuke - 確定日付)

A further aspect of the evidentiary strength of a kōsei shōsho is the "fixed date" or kakutei hizuke (確定日付) it bears. The date inscribed on a notarial deed by the kōshōnin is legally recognized as definitive proof that the document was in existence and was created on that specific date. This is established by the Enforcement Act of the Civil Code (Minpō Shikōhō - 民法施行法) Articles 4 and 5. The ability to irrefutably establish the date of a document's creation can be critical in various legal contexts, such as determining the priority of rights or the timeliness of certain legal actions.

The Enforceable Notarial Deed (Shikkō Shōsho - 執行証書): A Pathway to Direct Enforcement

Perhaps one of the most potent features of certain Japanese notarial deeds is their capacity to function as an "enforceable notarial deed" or shikkō shōsho (執行証書). This transforms the deed into a "title of execution" (saimu meigi - 債務名義), enabling a creditor to initiate compulsory execution proceedings against a defaulting debtor without the prerequisite of obtaining a separate court judgment.

Understanding "Titles of Execution"

A title of execution is a public document that formally attests to the existence of a private law claim for performance (typically payment) and grants the holder the right to realize that claim through state-enforced compulsory execution measures, such as the seizure of assets or garnishment of wages. Final and unappealable court judgments are the most common examples of titles of execution.

The Notarial Deed as a Unique Title of Execution

The Japanese kōsei shōsho holds a distinctive position as it is the only form of title of execution that can be created directly by agreement between parties, facilitated by a notary, without the immediate involvement or prior adjudication by a court. This feature makes it an exceptionally efficient instrument for securing and enforcing certain types of claims, especially when the underlying obligation is clear and undisputed at the time the deed is created. It allows parties to preemptively establish an enforcement mechanism, thereby streamlining the resolution process should a default occur.

Requirements for a Notarial Deed to Become Enforceable

For a kōsei shōsho to qualify as a shikkō shōsho and thus serve as a title of execution, it must satisfy specific stringent requirements laid out in Article 22, Item 5 of Japan's Civil Execution Act (Minji Shikkōhō - 民事執行法). These are:

1. The Claim Must Be for the Payment of a Specific Sum of Money or for the Delivery of a Specific Quantity of Other Fungible Goods or Securities.
   • The primary application of enforceable notarial deeds is for monetary claims where the amount due is clearly defined and fixed. It can also apply to obligations for the delivery of a precise quantity of fungible goods (e.g., a certain tonnage of a commodity) or a specific number of securities.
   • Crucially, claims for the delivery or transfer of specific, non-fungible assets, such as a particular piece of real estate or a unique movable item, generally cannot be made directly enforceable through this type of notarial deed. Such claims would typically require a court judgment.
   • The monetary amount or quantity of goods/securities must be unequivocally specified within the deed itself or be directly and unambiguously calculable from its provisions. For example, if a loan agreement states a principal amount and a fixed interest rate, the total due at a certain point might be calculable.
   • There are practical limitations. Claims that are contingent or uncertain in amount, such as a guarantor's future right of indemnification (which depends on the principal debtor defaulting and the guarantor paying), or loan obligations with variable interest rates that are not tied to an objectively determinable index within the deed, may not meet the "certainty" requirement to be considered an enforceable notarial deed for the full, unspecified future amount. The enforceability would generally be limited to amounts that are fixed and definite at the time of execution or become so based on the deed's terms.
2. The Deed Must Contain the Debtor's Explicit Statement of Submission to Immediate Compulsory Execution (Shikkō Judaku Mongon - 執行受諾文言).
   • This is a critical component. The debtor must have made an unequivocal declaration within the notarial deed that they consent to immediate compulsory execution without protest should they fail to perform the stipulated obligation (e.g., fail to pay the specified sum by the due date). This clause is often referred to as the shikkō judaku mongon.
   • This declaration is considered a formal procedural legal act (soshōhō-jō no kōi - 訴訟法上の行為) made by the debtor directly to the notary.
   • Implications for Agency: Because this submission clause is a procedural act distinct from private law declarations, the private law rules of "apparent agency" (hyōken dairi - 表見代理) do not apply. This means that if an agent executes the notarial deed on behalf of the debtor and includes the submission-to-execution clause, but the agent lacks specific, actual authority from the debtor to make such a submission, the execution clause will be invalid. Even if the creditor genuinely believed the agent possessed such authority, the deed cannot be used for direct compulsory execution based on that invalid clause. The authority to agree to submit to immediate execution must be clearly established.
   • Prohibition of Dual Representation (Sōhō Dairi - 双方代理) and Self-Contracting: While Article 108 of the Civil Code, which prohibits an agent from acting for both parties in a transaction (dual representation) or contracting with themselves on behalf of their principal (self-contracting) without consent, directly applies to private law acts, its underlying principle of avoiding conflicts of interest is considered pertinent to procedural acts like the submission-to-execution clause. Therefore, an agent generally cannot represent both the creditor and the debtor in agreeing to this clause, nor can an agent acting for the debtor make this submission in a contract where the agent is also the creditor, unless there is explicit authorization from the principal(s) permitting such representation for this specific act (referencing Supreme Court judgment of June 1, 1951, Minshū Vol. 5, No. 7, p. 367).

The Original, Authentic Copies, and Transcripts of Notarial Deeds

Understanding the different forms in which a notarial deed exists is important, especially when enforcement is contemplated.

• The Original Deed (Genpon - 原本): The genpon is the single, original document signed by the parties, any witnesses, and the notary, and affixed with the notary's official seal. This original is not handed over to the parties but is meticulously preserved at the notary office (kōshō yakuba) for a legally prescribed period.
• Authentic Copy (Seihon - 正本):
  • A seihon is an official copy of the original deed, prepared and certified by the notary who created the original (or their successor at the same office).
  • It is legally endowed with the same force and effect as the original deed itself.
  • Issuance of a seihon is generally restricted to the commissioning party (shokutakunin) or their legal successors in interest (e.g., heirs).
  • Essential for Enforcement: For the purpose of compulsory execution based on an enforceable notarial deed, it is the seihon that is required. The creditor must take this seihon to the notary office that issued it (or currently holds the original) and request an "execution clause" (shikkōbun - 執行文) to be appended to it. This clause is a formal certification by the notary that the deed is currently effective and enforceable against the named debtor for the benefit of the named creditor. This process is governed by Articles 25 to 28 of the Civil Execution Act.
• Transcript (Tōhon - 謄本):
  • A tōhon is also an official copy of the original deed, certified by the notary, made to prove the existence and precise contents of the original.
  • It can be requested by the commissioning party, their successors, or, importantly, by any third party who can demonstrate a legitimate legal interest in the matter recorded in the deed.
  • Whether a "legal interest" exists is determined by the notary on a case-by-case basis. A mere emotional connection, a general family relationship (unless it pertains to heirship for a will), or a simple economic relationship (like being a general creditor of one of the parties, without a specific link to the deed's subject matter) is typically insufficient to grant access to a tōhon.
  • Special Case for Notarial Wills: In the context of notarial wills, because a will only takes legal effect upon the testator's death, no one, including even a court-appointed guardian for a testator who later becomes incapacitated, is considered to have the requisite "legal interest" to request a tōhon of the will while the testator is still alive. Access is generally granted only after the testator's passing, to heirs or other beneficiaries who can prove their status.
• Evidentiary Power of Copies: In terms of their power as evidence in court, there is no distinction between a seihon and a tōhon; both accurately represent the content of the original and carry the same evidentiary weight regarding what was recorded.
• Notarial Wills in Inheritance Registration: An authentic copy (seihon) or a transcript (tōhon) of a notarial will, when presented together with official documentation of the testator's death (such as a certified copy of the family register - koseki tōhon), can serve as the "information certifying the cause of registration" (tōki gen'in shōmei jōhō - 登記原因証明情報). This is a key document required for registering the transfer of real estate to heirs or beneficiaries according to the will, as per the Real Property Registration Act (Fudōsan Tōkihō - 不動産登記法). This became possible after a 2004 amendment to the Act allowed multiple documents to be combined to prove the cause of registration.

Practical Advantages of Using Notarial Deeds

The specific legal effects of kōsei shōsho translate into tangible benefits:

• Enhanced Dispute Prevention: The high evidentiary value, the clarity resulting from the notary's involvement in drafting and review, and the confirmation of the parties' free and informed consent all contribute significantly to minimizing the likelihood of future legal disputes arising from the documented act.
• Efficient and Cost-Effective Enforcement: For qualifying monetary claims, an enforceable notarial deed provides a significantly faster and less expensive route to enforcement than would be required if a creditor had to first litigate the claim in court to obtain a judgment. This is particularly advantageous when the underlying obligation itself is not in dispute.
• Increased Reliability and Security in Transactions: The official character of a kōsei shōsho, created by a neutral and legally qualified public official, instills a strong sense of security and reliability for all parties entering into important agreements or making significant legal declarations, such as executing a will or establishing complex contractual terms.

Conclusion: Instruments of Legal Certainty and Enforceability

Japanese notarial deeds (kōsei shōsho) are far more than simple attested documents. They are imbued with substantial legal force, stemming from their creation by highly qualified public officials tasked with ensuring legality and clarity. Their robust evidentiary standing in court and, for certain deeds, their unique capacity to serve as direct instruments for the compulsory enforcement of monetary claims without prior court judgment, make them a cornerstone of preventative justice and a highly effective tool for securing and realizing rights within the Japanese legal system. For individuals and entities engaging in significant legal acts in Japan, understanding and appropriately utilizing the kōsei shōsho system can provide a critical layer of legal certainty and a powerful means of recourse.