JAPAN Law and Practice Contributed by: Takefumi Sato, Aoi Inoue, Kosuke Tsunashima and Ryohei Ikeda, Anderson Mori & Tomotsune
Prerequisites Under Article 118 of the Code of Civil Procedure Article 118 of the Code of Civil Procedure outlines the prerequisites for a foreign judgment to be enforced in Japan directly in the following excerpt. “The judgment of a court of a foreign country [that] has become final and conclusive shall be valid only when the following conditions have been met: • the jurisdiction of the foreign court is recognised by law or treaty; • the losing defendant duly received service of sum - mons or other order necessary to commence the action, by means other than service by publication or any other service similar thereto, or voluntarily entered appearance in the proceedings; • the contents of the judgment and the court pro - ceedings are not contrary to the public order or good morals in Japan; and • there is reciprocity.” The litigant therefore needs to demonstrate that the judgment of the foreign court has become final and conclusive, and that the four prerequisites as stipu - lated by Article 118 of the Code of Civil Procedure have been met, in order for it to be enforced in Japan. 3.2 Variations in Approach to Enforcement of Foreign Judgments The approach to enforcing foreign judgments in Japan does not vary for different types of judgments. In addition, foreign insolvency proceedings are recog - nised subject to certain prerequisites stipulated within the Act on Recognition of and Assistance for Foreign Insolvency Proceedings. 3.3 Categories of Foreign Judgments Not Enforced Lack of Finality/Judiciality The first category of foreign judgments that will not be enforced in Japan are those that have not “become final and conclusive”. Accordingly, if the foreign judg - ment can still be appealed, it cannot be enforced in Japan. A foreign administrative decision/order is not enforceable either, as it is not a “judgment” of a “court” of a foreign country.
Lack of Jurisdiction The second category consists of foreign judgments that do not meet the prerequisite set forth in Article 118, Item 1 of the Code of Civil Procedure, which states that “[t]he jurisdiction of the foreign court is recognised by law or treaty”. The “law” referred to, for the purpose of this provision, is Japanese law. The Supreme Court of Japan Judgment of 24 April 2014 held that, under Japanese law, recognition of the jurisdiction of the foreign court is determined by: • the rule of reason; • applying the law of international jurisdiction under the Code of Civil Procedure of Japan; and • considering whether or not it is appropriate for Japan to recognise the particular foreign judgment based on the specific circumstances of the case. The jurisdiction of the foreign court in this context is called “indirect jurisdiction”. Invalid Service The third category relates to the prerequisite set forth in Article 118, Item 2 of the Code of Civil Procedure: “The losing defendant duly received service of sum - mons or other order necessary to commence the action, by means other than service by publication or any other service similar thereto, or voluntarily entered appearance in the proceedings.” Some other countries have treaties with Japan that require documents to be served in a certain manner for a lawsuit to commence. The Supreme Court of Japan has ruled that service must be conducted in accordance with the treaty’s requirement in order to be considered valid service for purposes of this pre - requisite, under Item 2 of Article 118 (Supreme Court Judgment of 28 April 1998). Whether service by direct postal mail is recognised as valid service under Article 118, Item 2 of the Code of Civil Procedure had long been an open issue, because the Japanese government did not lodge an objection under Article 10 (a), which provides for the freedom to send judicial documents directly to persons abroad by postal channels, when it entered into the Convention on the Service Abroad of Judicial and Extrajudicial
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