JAPAN Law and Practice Contributed by: Hiroki Wakabayashi, Kenichi Sadaka and Kei Akagawa, Anderson Mori & Tomotsune
10. Appeal 10.1 Levels of Appeal or Review to a Litigation As a general rule, an aggrieved party before a court of first instance can appeal to a court of second instance and in the second instance may appeal to the final 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 sum- mary court is the court of first instance, a district court is the second instance and a high court is the final appellate 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 parties agree to circumvent the proceedings in the second 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 (Article 281 of the CCP). There is no need to secure a grant or leave to proceed to the sec- ond 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 misin- terpreted 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 signif-
icant issues regarding the interpretation of laws and regulations (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 judgment on the party. If the grounds for appeal are not stated in the writ- ten 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 essentially 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 consid- ered a continuation of those in the first instance. The appeal court re-hears the case and consid- ers 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
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