Abstract
We are members of the study group for Improvement of Civil Execution Procedures. We consider the inefficiency of the civil enforcement law in Japan as a cause for frustration of creditors who have obtained a monetary judgment. After visiting and learning from the procedures in European countries, we decided to propose a new enforcement procedure called Enforcement Executive (the “EE”). The EE, we propose, is an attorney at law who is appointed by a court upon at the request of a creditor. The EE may have access to all the information of the assets of the debtors, which should not be shared by the creditor. The EE may choose the asset of the debtor to enforce. The EE may enforce directly when the asset the EE chooses is a third-party debt. If the asset is movable, the EE files the motion to attach to an enforcement officer. If the asset is a real estate, the EE will apply the judgement lien. We are also thinking to empower to the EE to offer an installment payment plan to the creditor. With this new enforcement procedure, we may escape from the dilemma between the requirement of creditors’ access to debtors’ asset information for effective enforcement and protecting debtors’ privacy from creditors and give an opportunity to a debtor to restructure his/her life.
Members: Shigehide Koyanagi, Attorney at Law (Senior Researcher); Hiroko Namura, Attorney at Law (Reporter); Prof. Dr. Masahisa Deguchi; Katsuhisa Masuda, Attorney at Law; Hirofumi Ata, Attorney at Law; Kenya Nagashima, Attorney at Law; Prof. Yoshihisa Hayakawa. Only the co-authors have the responsibility regarding this legal essay, however, all the members discussed and made great effort to consider how to renovate the civil enforcement procedure in the Japan as written in this essay.
We felt honored to have the opportunity to attend and introduce our study at the colloquium on November 8th, 2019 where highly esteemed academics and practitioners gathered on the campus of Ritsumeikan University under the great coordination by Professor Masahisa Deguchi.
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Notes
- 1.
This procedure came into force in 2004.
- 2.
Section 807 ZPO former version before 2009 (Section 802 c Vermögensauskunft des Schuldners ZPO current version).
- 3.
In Germany, the executive officer has jurisdiction over property discovery procedure since the Second Compulsory Execution Amendment Act (BGBI.I.S.3039), which was enacted in 1997 and came into effect in 1999.
- 4.
Article 196, Civil Execution Act (Japan). The following are the article of the Civil Enforcement Law of Japan unless otherwise specified.
- 5.
Shigehide Koyanagi, Zaisankaiji no Jitsumu to Riron(Practice and Theory of Property Disclosure Procedure), p. 7–35,67–103.
- 6.
This requirement is also stipulated in Article 197 (1) and (2) of the Civil Enforcement Law in the current law as follows.
Article197 (1) When the petitioner was unable to obtain full performance of said monetary claim in the procedure of liquidating distribution, etc. (excluding a procedure that was terminated by at least six months prior to the day of filing the petition) in compulsory execution or exercise of a security interest. (2) When prima facie showing was made that the petitioner is unable to obtain full performance of said monetary claim even by implementing compulsory execution against known property.
(http://www.japaneselawtranslation.go.jp/law/detail/?re=01&ky=release&ia=03&page=16&la=01&ja=04, last visited September 23, 2020).
- 7.
In Germany, Requirement of Ineffective Execution was abolished by the revision in 2009.
- 8.
The following procedures b. and c. came into effect in April 2020.
- 9.
This procedure is scheduled to come into effect in April 2021. Since construction of a system took time, effecting is overdue.
- 10.
Kazuo Imai et al., kaiseiminjisikouhou jitumukaisetu (Revised Civil Enforcement Law, Practical Commentary), pp. 84–86.
- 11.
In Germany, only after the debtor does not comply with his obligation to disclose his or her financial situation, the bailiff may access the Federal Central Tax Office in order to get information of the debtor’s bank accounts, (ZPO802l).
- 12.
Appeal against a Disposition of Execution filed against the decision to dismiss the petition for the property discovery procedure, Osaka High Court 2009 (La) No. 1166, dated as of January 19, 2010.
Eiji Uchiyama,Toshio Uehara et al., Hanrei Hyakusen Minjisikkou-Hozen (100 Selections of Civil Enforcement and Conservation Judgments), p. 172 (2012) (Author Koyanagi acted as an agent).
- 13.
Kazuhiko Yamamoto et al., Ronten kaisetu Reiwa gannen kaisei minjisikouhou (Explanation of Issues, Revised Civil Enforcement Law of Reiwa 1 Year), pp. 24–27(2020).
- 14.
See. Hess, pp. ??–??.
- 15.
Muneki Uchino et al., Q & A reiwa gannen kaisei minnjisikkouhousei (Revised Civil Enforcement Legislation of Reiwa 1 Year, p. 113–114.
- 16.
Exekutionsverfahren zuständigen Abteilungsleiter im Bundesministerium für Justiz.
- 17.
The former chairperson of German Civil Procedure Leitungseinheit Gerichtsvollzug, Mitglied der FEX-Planungs- und Leitungseinheit beim OLG Wien,Trainer im Justizbildungszentrum Schwechat,Sachverständiger in der Arbeitsgruppe Exekutions- und Insolvenzrechtfür den Zentralausschuss beim BMJ.
- 18.
Vice chairperson of the study group of the officers in charge of German Civil Procedure and an author of a hornbook of civil procedure.
- 19.
Head of the Institute for Civil Procedure Law at the University of Vienna (2000–2009). Deputy Head of the Institute for Civil Procedure Law (2010~).
- 20.
Betreibungsbeamten is an officer belonging to an administrative organization which has a jurisdiction to collect third party debts.
- 21.
Articles 149–149a and 265 of the Federal Code on the Enforcement of Money Judgments and Bankruptcy, SchKG , available at https://www.admin.ch/opc/de/classified-compilation/18890002/201901010000/281.1.pdf, last visited September 23, 2020.
- 22.
The legendary authority of civil procedure academism in Germany who served as the chairperson of the study group of the officers in charge of German Civil Procedure.
- 23.
LL.M. at Duke University in North Carolina in the US. The chairperson legal policy association (Mitglied des Präsidiums der Gesellschaft für Rechtspolitik).
- 24.
In Switzerland, monetary claims collection and bankruptcy proceedings are stipulated in one law, Bundesgesetz über Schuldbetreibung und Konkurs (SchKG).
- 25.
Articles L152-1~3 Code de la Procedure civile d'execution (France), available at https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000025024948/LEGISCTA000025025755/#LEGISCTA000025026669, last visited September 23, 2020.
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Namura, H., Koyanagi, S. (2022). Proposal for a Procedure to Strengthen Creditor’s Claims While Protecting Debtor’s Quality of Life and Privacy in Japan. In: Deguchi, M. (eds) Effective Enforcement of Creditors’ Rights. Ius Gentium: Comparative Perspectives on Law and Justice, vol 91. Springer, Singapore. https://doi.org/10.1007/978-981-16-5609-5_11
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