カテゴリ: Hiroshi Tobita

If a debtor does not pay one million yen although he or she is obliged to pay it, the creditor will sue the debtor and get the decision from the judge that orders debtor to pay one million yen to the creditor.

When the debtor does not pay it voluntarily in spite of receiving the order, based on the decision, the creditor can appeal a compulsory execution to the court.

That is, the creditor can have the court attach the debtor’s properties, convert them into money, and use it for the payment of the creditor’s account receivable.

By the way, it is rare that the debtors who cannot pay anything own a real estate.
Therefore, even if the creditor has the right to attach the debtor’s property, in most cases, the creditor can only attach the money in the debtor’s bank account.

However, in Japan, the attachment system to the bank account does not work well.

Since if the creditor tries to appeal the attachment of the money in the debtor’s bank account, it is interpreted that the creditor needs to identify the debtor’s bank account as to what bank and what branch the debtor’s bank account belongs to (but not needed the number of the debtor’s bank account.) 

In Japan, there are a lot of banks and each banks have a lot of branches.

Usually, creditors do not know about which bank or which branch debtors have their account in.

Especially, if there are no continuous deals between the creditor and the debtor, for example if the creditor is the victim of a tort case, the creditor do not know the information about debtor’s bank account.

And even when the creditor knows the debtor’s bank account information, if debtor changes his bank, the debtor can easily escape the attachment.

From above, In Japan, the effectiveness of the civil judgment is extremely weak and it has been said that civil judgment is like “a Rice cake, which drew a picture” or “completely useless less that shit”.

However, according to the article of Asahi DIGITAL dated on August 5, 2016,

Ministry of Justice will try to implement the system that makes financial institutions disclose the information about the account that was owned by the person who owed obligation to pay and was judged to pay it in the court, in order to prevent the nonpayment of the compensation or the expense of bringing up a child. (translated by Hiroshi Tobita)


This is aimed at using compulsory execution easily in the court. In this autumn, Ministry of Justice will seek an opinion about the draft of revision of Civil Execution Act to Hosei Shingikai that is an advisory body of a minister of Justice, and try to submit it to the parliament in about 2018.

According to the article, the details of the Act  are as follows: 

Under the revision draft of the Act,creditors may request the court to investigate whether the debtor has his/her account in financial institutions in which the debtor supposed to have an account such as a bank around the debtor's address.
The court inquires it to the financial institution, and if there is a debtor's account, the court will order each headquarters of the financial institutions to disclose the branch name that has accounts to be attached, the kind of the account, the balance of the account, on so on.

Creditors do not need specify the name of financial institutions where debtor has his/her account. It is enough to get some idea of them.  (translated by Hiroshi Tobita)

This is a good news in Japanese judicial circle.


Recently, the number of the cases in the court has been inclined to decrease. I think this is because not only the populations of Japan is decreasing, but also there is a common recognition that the court in Japan is not useful. 

If civil judgement is not effective, Yakuza (Japanese mafia) will be rampant to debt correcting works as old time.

I hope this revise will make civil judgement of our country more effective and useful.

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209

I would like to explain the regal rules concerning divorce in Japan.

First, in Japan, if a married couple agrees with their divorce and submits the official divorce registration papers to a public office, the divorce is valid. We call this kind of divorce a “mutual agreement divorce”. In this divorce, the reason for divorce is not important. Mere “incompatibility” is acceptable. Actually, we do not even need to write the reason for divorce in the official divorce registration papers.
About 70% of the all divorce cases in Japan are mutual agreement divorces.

If the couple cannot talk with each other about a divorce, the husband or wife who would like to divorce has to file a petition for divorce conciliation to the family court. 
In conciliation, basically two members of a mediation committee intervene between the husband and wife, which lets them talk about divorce smoothly. A conciliation date in the family court is held once a month.
Divorce conciliation is valid only when husband and wife agree to divorce.
Therefore, basically mutual agreement divorce and conciliation divorce are almost the same, except that the place of negotiation is family court and a mediation committee intervenes.

If a conciliation divorce is not valid, the husband or wife who would like to divorce must sue the other party for divorce. If the divorce is permitted in the sentence, the divorce is valid, even if the other party does not give consent to divorce.
However, the court can order divorce only when it recognizes the following items between a couple (Civil act 770Ⅰ).
1) if a spouse has committed an act of unchastity;
2) if abandoned by a spouse in bad faith;
3) if it is not clear whether a spouse is dead or alive not less than three years;
4) if a spouse is suffering from severe mental illness;
5) if there is any other grave cause making it difficult to continue the marriage.
In most cases, plaintiffs insist on 5) “any other grave cause making it difficult to continue the marriage”. Although mere “incompatibility” is not regarded as a “grave cause”, by adding the fact of separation or other items, they can argue it as a grave cause. 

All divorce court cases are not necessarily settled by the judge’s sentences. In the process of the court procedure, they are often settled by judicial settlement. About 30% of all divorce cases are settled by judicial settlement. It is made by the party’s agreement. So it is basically the same of the mutual agreement divorce and conciliation divorce.
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portrait_tobita 002

I am Hiroshi Tobita: a lawyer, and I manage the law office called "Tobita & Partners".

We specialize in the corporate legal work. The areas we practice are corporate law, labor law (employer side), intellectual property law, real estate and bankruptcy.

Our available languages are Japanese and English.
These days, the number of foreign clients is increasing.

Our strength is that we have a lot of expertise in Japanese court procedure. We can advise about any aspect of Japanese court procedure.

Please feel free to contact us for any inquiries.

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go004


Copying a map at a library

Today I'd like to tell about copyright.

In many libraries, it is prohibited to copy a map like a housing map more than a half of a two-page spread.
Many of you may think that we can copy anything in a library, but there are some restrictions on making a copy of works.

The reason why it is prohibited to copy a map more than a half of a two-page spread is as follows:
1. We can copy only a part of a work in a library in accordance with the Copyright Act.
2. "A part of a work" is interpreted as less than a half of the work in practice.
3. As for the housing map, a two-page spread is considered to be a single work.

Therefore, if you copy a housing map more than a half of a two-page spread, it would not "a part of a work" and it is prohibited by the Copyright Act.
Specifically, it is prescribed by law as follows:

(Reproduction in libraries, etc.)

Article 31 (1) In the following cases and as part of non-commercial undertakings at the National Diet Library or at a library or other facility specified by Cabinet Order whose purpose is to offer books, records, and other materials for the public to use (hereinafter referred to as a "library, etc." in this paragraph), it is permissible for a person to reproduce a work from a book, record, or other material of the library, etc. (hereinafter referred to in this Article as a "library material"):

(i) when providing a single user of the library, etc. with a single copy of a part of a work that has been made public (or the whole of a work that has been made public, if it is an individual work that has been printed in a periodical and a considerable period of time has elapsed since its publication) in response to the user's request and for the purpose of the user's research or studies.

In general, each page of a map book is linked to the other page and the entire book is regarded as one map.
Therefore, I think it is natural to regard one map book as one work.
Moreover, in reality, if the area which we want to copy is printed astride a two-page spread, it would be very inconvenient that we can copy only half of that.

This inflexibility might be a difficulty of Japanese Copyright Act.
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049


Parent's access to children should be protected

On July 26, 2015, an article on Sankei newspaper about a contact was distributed to an internet news website as follows:
A man in his 40s fought with his wife at a family court and obtained the final judgement that the man shall see their daughter twice a month.
However, the wife refused this contact order due to their daughter's illness.
Then, the man applied to the family court for its indirect enforcement and he obtained the judgement that if the wife refuses the contact, she must pay a fine of 10,000 yen per one time.
However, the man could never see his daughter as yet, so he made an appeal.
Nagoya high court judged the wife intentionally refused the contact because there were no submitted materials that objectively confirm their daughter's illness.
Finally the court decided to increase the amount of the fine by four times.
I have been considering that it is a serious problem that contacts between parents and children have not been executed properly in Japan, so this judgement by Nagoya high court seems to be remarkable and revolutionary.
In order to deal with this problem, the rule that "parent's access to children has to be protected" should be respected thoroughly. 
This rule has not been observed properly because its enforceability is weak and easy to be broken with some excuses.
I believe we should keep it in mind that marital problems and parent-child problems are different issues.
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