JAPAN Law and Practice Contributed by: Hiroki Wakabayashi, Kenichi Sadaka and Kei Akagawa, Anderson Mori & Tomotsune
appellate court. In the case where a district court or a family court is the court of first instance, a high court is the second instance and the Supreme Court is the final appellate court. In the case where a summary court is the court of first instance, a district court is the second instance and a high court is the final appel- late court. As an exception, an aggrieved party in the first instance can appeal directly to the final appellate court if, after the judgment in the first instance is rendered, the par- ties agree to circumvent the proceedings in the sec- ond instance (Articles 311 and 281 of the CCP). 10.2 Rules Concerning Appeals of Judgments An aggrieved party at the court of first instance may appeal to the court of second instance as a right (Arti- cle 281 of the CCP). There is no need to secure a grant or leave to proceed to the second instance, nor are there any limitations on the grounds for such appeal. In contrast, the grounds for a final appeal are narrowly stipulated in the CCP. A litigant may appeal to the court of third instance as a right only where the court of second instance misinterpreted the constitution of Japan or committed a fatal procedural error (eg, the judge not being qualified to hear the case) (Article 312 of the CCP). In addition, where a high court is the court of second instance, the Supreme Court may, at its discretion, accept the case if it involves significant issues regarding the interpretation of laws and regu- lations (Article 318 of the CCP). Upon acceptance of the case, a final appeal is deemed to have been filed. 10.3 Procedure for Taking an Appeal An aggrieved party in the first instance may make an appeal to the court of second instance, by submitting a written appeal to the court of first instance within two weeks from the date of service of the written judg- ment on the party. If the grounds for appeal are not stated in the written appeal, the appellant is required to submit a brief stating the grounds for appeal to the court of second instance within 50 days from the date of submission of the petition. Failure to comply with the deadline for submission of the written statement is not, however, sanctioned by an automatic dismissal of the appeal.
The procedures for making an appeal (including a petition to accept the case) from the judgment of the second instance to the final appellate court are essen- tially the same as set out above, except that failure to submit a brief stating the grounds for the final appeal or for the petition to accept the case within 50 days is sanctioned by automatic dismissal (Articles 315, 316 and 318 of the CCP). 10.4 Issues Considered by the Appeal Court at an Appeal Proceedings in the second instance are considered a continuation of those in the first instance. The appeal court re-hears the case and considers whether there is an error in the first instance judgment in terms of fact-finding or application of the law. In addition, new issues which were not explored at first instance may be examined at the appeal. However, presentation of those issues which could have been raised in the first instance and raising which will delay conclusion of the proceedings in the second instance may be rejected by the court (Article 157 of the CCP). 10.5 Court-Imposed Conditions on Granting an Appeal When the Supreme Court grants a petition to accept a case (see 10.2 Rules Concerning Appeals of Judg- ments ), it may determine which grounds for the peti- tion are to be reviewed. Other grounds are excluded from the court’s review (Article 318 of the CCP). 10.6 Powers of the Appellate Court After an Appeal Hearing Once the court of second instance closes the oral proceedings, it may render a judgment either revers- ing the judgment in the first instance or dismissing the appeal. When reversing the judgment, the court may adjudicate the case by itself or may remand the case to the lower court. It may also encourage the parties to settle the case at any time before rendering a judg- ment (Article 89 of the CCP).
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