Chapter 2. Appendix: The records read

Which documents allow compulsory enforcement to begin even without a judgment?

In these practice materials, the type of document relied on as the basis for enforcement and whether an execution clause has been granted are examined together.

One interpretation holds that a document with the same effect as a final judgment serves as a basis for enforcement even without a judgment.

Another interpretation holds that even with such a document, actual enforcement may proceed only once an authenticated copy bearing an execution clause is in hand.

How should it be decided together whether the document relied on is a basis for enforcement and whether an execution clause is in place?

The matter is looked at again if a record of the grant of an execution clause or of the completion of the procedures that follow is newly confirmed.

How do the effect of a settlement and the effect of a final judgment differ in enforcement?

In these practice materials, the record of the dispute between the debtor company and the supplier over a money payment and the course of service of the certified copy of the court record are examined together.

One interpretation holds that the different wordings mean the same final effect, so they do not differ as titles of execution.

Another interpretation holds that the wordings point to endings of different shapes, so their place among titles of execution and the route for a later dispute may differ.

Which ending of the case gained final effect under which wording, and where does it fall in the list of titles of execution?

The matter is looked at again if the time of service of the certified copy of the court record or whether an objection was filed turns out differently.

Can an application for disclosure of the debtor's assets be based on a judgment declared provisionally enforceable?

In these practice materials, the description of the title of execution against the debtor company, whether compulsory execution can begin, and how the debtor's assets have been traced are checked.

One interpretation holds that a creditor who can begin compulsory execution on a title for the payment of money can obtain a list of the debtor's assets through asset disclosure.

Another interpretation holds that a judgment enforceable only because it was declared provisionally enforceable does not open the route to asset disclosure.

Which titles of execution can support an application for asset disclosure, and in which cases is that route closed?

The matter is looked at again if the service of the disclosure order, the course of any objection, or the curing of grounds for dismissal changes.

After the creditor or debtor named in a judgment has changed, how is an execution clause obtained?

In these practice materials, the judgment is reviewed together with the documents showing the succession and the documents showing that a condition has been fulfilled.

One interpretation holds that where the succession is evident to the court or is proved by certificates, the execution clause can be obtained by order of the presiding judge.

Another interpretation holds that where the succession cannot be proved by certificates or is disputed, it must be decided in a separate suit such as a suit for the grant of an execution clause.

What decides whether a succession is a fact evident to the court or a matter to be proved by certificates?

The matter is looked at again if a new dispute over the fulfillment of the condition or over the succession comes to light.

In a provisional attachment, can an order be made on security alone when the prima facie showing falls short?

In these practice materials, the papers making a prima facie showing of the claim are looked at together with the materials making a prima facie showing that execution may later become difficult.

One interpretation holds that even if the showing of the claim or of the grounds for attachment falls short, the court may make the order once security for the debtor's possible loss is provided, so security fills the gap in the showing.

Another interpretation holds that because the provision says only that the court may make the order, an order does not follow as a matter of course from security where the showing falls short.

Weighing how far the showing goes against the security offered, what choice remains for the court?

The matter is looked at again if the papers showing the claim are strengthened or the circumstances showing that execution would be difficult change.

After a provisional attachment order is obtained, what must be confirmed separately before enforcement?

In these practice materials, the time the order was notified and the records showing traces of enforcement are examined together. The entries in the property register and whether an order prohibiting payment was issued are also checked.

One interpretation holds that the period for enforcement starts to run once the order is notified to the creditor, so the time of the order should mark the scope of the proceedings.

Another interpretation holds that property is actually bound only when enforcement occurs, such as an entry in the register, so the time of enforcement should mark the scope.

Between the time of the order and the time of enforcement, which should mark the scope of the proceedings?

The matter is looked at again if the records showing enforcement change or if a new record of enforcement carried out before service appears.

How does depositing the release amount for a provisional attachment differ from the security given by the creditor?

In these practice materials, the provisional attachment order, the entries on the security given, the deposit records and whether the attachment has been executed are looked at together.

One interpretation holds that depositing the release amount is a means by which the debtor puts up money in place of the attached property, so it serves to bring forward the cancellation of an executed attachment.

Another interpretation holds that the creditor's security guards against the loss the attachment may cause the debtor, so it differs from the release amount both in who provides it and in the risk it covers.

To lift an attachment that remains in place, which comes into question first, the deposit or the security?

The matter is looked at again if the records on the deposit or on a change of circumstances, or the entries in the order and the course of execution, change.

Through which routes can a debtor subject to a provisional attachment order keep contesting it?

In these practice materials, the provisional attachment order, the course of execution and whether the main action is pending are checked.

One interpretation holds that the objection procedure is the main route for contesting the requirements as they stood when the order was made, and that later changes must be dealt with through a separate cancellation procedure.

Another interpretation holds that each application is an independent route which the debtor may choose directly according to the situation it faces.

By what is it decided whether the debtor company is contesting the requirements as they stood when the order was made or circumstances that changed afterwards?

The matter is looked at again if the main action is newly brought, security is provided or time passes after execution.

When several attachments fall on the same money claim, how far does each take effect?

In these practice materials, when the attachment order and the transfer order were served is compared with when demands for distribution were made. Whether a deposit or a collection was reported is reviewed as well.

One interpretation holds that once the transfer order has been served, later demands for distribution are barred and the attaching creditor takes the claim.

Another interpretation holds that if another attachment or demand for distribution comes in before service, the sole transfer is blocked and the matter moves to distribution among several creditors.

From what point is the line drawn between a transfer under the transfer order and distribution among several creditors?

The matter is looked at again if a new attachment, a demand for distribution or a report of deposit comes to light, or whether the transfer order became final changes.

When an attached claim is to be realized directly, how does a collection order differ from a transfer order?

In these practice materials, the existence of the attached receivables, the service of the order barring payment, and the type and service of the realization order that followed are checked.

One interpretation holds that once the bar on payment has taken effect, either order starts from the same point as a way of realizing the attached claim.

Another interpretation holds that the type of order changes when the right passes and who bears the risk, so their requirements and effects must be examined separately.

Depending on which order was obtained, how does the obligor's failure to pay or the arrival of other creditors affect the outcome?

The matter is looked at again if another attachment or a demand for distribution is filed after service of the order, or the obligor turns out to refuse payment.

By what methods is attached property that is hard to collect turned into money?

In these practice materials, the papers needed to confirm what the attached right is and what conditions are attached to payment are examined.

One interpretation holds that a claim subject to a condition or a time limit can still be handled by ordinary collection.

Another interpretation holds that a claim that is hard to collect calls for a separate order to turn it into money.

How is it decided which procedure applies, given that it differs with the kind of right involved?

The matter is looked at again if whether the order is final or when the attachment took effect turns out differently.

When challenging compulsory execution, what should be targeted and which suit should be brought?

In these practice materials, the material showing the type of title of execution, how the execution clause was granted, and who owns the property subject to execution is reviewed.

One interpretation holds that a claim settled by judgment can be challenged only on grounds arising after the hearing closed, so the scope of the challenge is narrow.

Another interpretation holds that the grant of the execution clause and rights in the property are separate from the claim, so each can be challenged in its own suit.

How is it decided whether the target of the challenge is the claim itself, the grant of the execution clause, or a right in the property?

The matter is looked at again if the stay of execution changes or a new claim of right in the property comes to light.

Does the range of grounds for challenging execution differ with the type of title of execution?

In these practice materials, the material showing the type of title of execution and when the grounds of objection arose is checked.

One interpretation holds that where a title has the same effect as a final judgment, the grounds that can be raised are the same as for a final judgment, apart from where the time limit is excluded.

Another interpretation holds that payment orders and notarial deeds are treated separately, with no time limit applied, so the range of grounds differs.

How should the type of title and the time the grounds of objection arose be assessed together?

The matter is looked at again if the type of title changes or the material on when the grounds of objection arose changes.

How far do an application for individual rehabilitation and the order opening it halt collection and execution?

In these practice materials, the timing of the application and of the opening order, whether a stay order or a prohibition order was made, whether the claim is on the list of creditors and whether it is secured are checked.

One interpretation holds that once the opening order is made, rehabilitation and bankruptcy proceedings, execution and collection all halt without any separate order, so the halt is read broadly.

Another interpretation holds that execution on a claim not on the list of creditors falls outside that rule and an auction to enforce a security interest halts only until a set date, so the halt is read narrowly.

How is it settled whether a halt rests on a court order or on the effect of the opening order?

The matter is looked at again if a later decision follows, such as the dismissal of the application or the confirmation of the repayment plan.

In personal bankruptcy, when does the discharge application follow, and how is enforcement halted?

In these practice materials, when the bankruptcy petition was filed, whether discharge was applied for, the state of the list of creditors and of any application to discontinue the bankruptcy, and the course of the enforcement records are checked together.

One interpretation holds that if the debtor filed for bankruptcy without stating an intention to the contrary, discharge is treated as applied for at the same time and the two proceed together.

Another interpretation holds that if an intention to the contrary was stated, a separate discharge application and a list of creditors are needed before the proceedings move on.

Is the remaining compulsory enforcement subject to a stay until the ruling on the discharge application becomes final?

The matter is looked at again if, after a decision discontinuing the bankruptcy becomes final or a decision closing it is made, it changes whether the ruling on the discharge application has become final.

Once bankruptcy is declared, what becomes of the debtor's acts and of execution?

In these practice materials, the debtor company's disposals and the records of pending execution are checked against the time before and after the declaration.

One view holds that after the declaration, the debtor company's disposal of property in the bankruptcy estate cannot be asserted against the bankruptcy creditors.

One interpretation holds that some pending execution may continue or be treated differently.

Must it first be decided which property an act concerns and at what time?

The matter is looked at again if the time of the declaration or who the property belongs to becomes clearer.