JAPAN Law and Practice Contributed by: Hiroki Wakabayashi, Kenichi Sadaka and Kei Akagawa, Anderson Mori & Tomotsune
8. Settlement 8.1 Court Approval Parties may settle a lawsuit either in court or out- side the court. An out-of-court settlement requires no court approval. An in-court (judicial) settlement is established when its details are recorded in the record of settlement prepared by the court. In this sense, an in-court settlement is regulated to a certain extent, although it need not be approved by the court. 8.2 Settlement of Lawsuits and Confidentiality For a judicial settlement, the record of settle- ment, which is a part of the court record, is generally open to the public, with exceptional protection from public disclosure as set forth in 1.3 Court Filings and Proceedings . However, even under exceptional protection, it is virtually impossible to protect the fact of the settlement itself from public disclosure as it is not classed as a protected secret under Article 92 of the CCP. Out-of-Court Settlement As for an out-of-court settlement, which is usu- ally followed by a withdrawal of the lawsuit, only the fact of the withdrawal is open to the public. The reason for the withdrawal (ie, an out-of-court settlement) remains unknown. Accordingly, the out-of-court settlement can remain confidential, as long as the parties comply with the confiden- tiality clause, if any, in the settlement agreement. 8.3 Enforcement of Settlement Agreements The record of a judicial settlement has the same effect as a final and binding judgment (Article 269 of the CCP), so the party may commence
enforcement procedures by submitting the record to the enforcement court. An out-of-court settlement agreement may be similarly enforceable only if it takes the form of a notarial deed prepared by a notary public and if the following two conditions are met: • the claim to be enforced is a claim for pay- ment of a certain amount of money or any other fungible thing or a certain amount of securities; and • the agreement contains a statement to the effect that the obligor will immediately accept compulsory execution. 8.4 Setting Aside Settlement Agreements A judicial settlement may be set aside upon certain action by a party which demonstrates that the settlement is null and void for certain reasons, such as fraud or a material mistake. Such action includes the party’s motion for the re-opening of oral proceedings for the lawsuit which was settled, the party’s objection to the enforcement of the judicial settlement, and the party’s filing of a new lawsuit seeking a declara- tory judgment to confirm that the judicial settle- ment is null and void. 9. Damages and Judgment 9.1 Awards Available to the Successful Litigant Depending on the type of claim pursued by the successful litigant, the court’s judgment takes one of the following three forms: • a judgment ordering specific performance (such as paying money, evacuating premises, surrendering movables, or otherwise doing or refraining from doing a certain act);
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