How to Serve Process on a Japanese Citizen in Japan for Foreign Court Proceedings

You should examine the following documents.  Some information is US specific, published by the US State Department, but most concepts are based on international treaties so should apply elsewhere also. Always check the source to see if there is a more recent version, although unfortunately, the US government sources tend to disappear every year or two.  Sometimes they return in different places, sometimes not.  Also, see our page  Issue: Japan may use the Hague Service Convention to prevent foreign legal documents from being served on Japanese parental abductors

• US State Department Flyer on Service of Process in Japan  READ THIS DOCUMENT FIRST
• Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters
• International Commercial Litigation in Japan - A MUST READ article that goes over many aspects of commercial law, such as how to gather evidence, that are likely applicable to civil trials also.
• Recognition and Enforcement of Foreign Judgments on Child Custody Cases In Japan by Judge Sumiko Ikemoto. Footnotes by William M Hilton
• SERVICE OF LEGAL DOCUMENTS ABROAD
• HAGUE CONVENTION ON THE SERVICE ABROAD
  OF JUDICIAL AND EXTRA-JUDICIAL DOCUMENTS
  IN CIVIL AND COMMERCIAL MATTERS
• PREPARATION OF LETTERS ROGATORY
• Contents Registered Mail: 内容証明郵便 (Naiyou Shoumei Yuubin)

DO NOT CONSIDER THIS LEGAL ADVICE. Get information from a lawyer in the
jurisdictions involved.  Check the Rules of Civil Procedure in the correct jurisdiction.

In order for a foreign court order to be recognized in Japan, it must meet the requirements of Article 118 of the Civil Procedure Code of Japan.

Article 118 of the Civil Procedure Code of Japan:

A foreign judgment which has become final and conclusive shall be valid only upon the fulfillment of the following conditions:

(1) The jurisdiction of the foreign court is not prohibited either by law or a treaty;

(2) The defeated defendant was served with a summons or an order necessary for the commencement of the procedure other than by service by publication, or has voluntarily appeared without being so served;

(3) The judgment of the foreign court is not contrary to the public order or good morals of Japan in its contents or proceedings upon which it was based; and

(4) Comity (reciprocity) exists in the issuing country.

For information on how to serve process in Japan and the associated issues, see How to Serve Process on a Japanese Citizen in Japan for Foreign Court Proceedings.

The "not contrary to the public order or good morals" requirement is one part of this law to be careful of.  For example, although punitive damages are common in US courts, they may be deemed a kind of penal provision, outside the scope of actual civil damages, which could be contrary to Japanese policy.  It is not clear whether only such punitive damages would be unenforceable, or whether the entire judgment could be ruled unenforceable.  This may also come into play in family law, for example in a Tokyo High Court judgment of November 15, 1993, the court refused to enforce a foreign award of custody to a father who lived outside Japan because the child had lived for several years in Japan with the mother and spoke only Japanese, which was not the native language of the father.

One must also be careful about how evidence in Japan was gathered for the foreign judgment.  If the judgment was based on evidence gathered in Japan which violates the treaties or agreements.  Although Japan is a party to the Hague Convention on Civil Procedure of 1954, it is not a party to the Hague Convention on the Taking of Evidence.  Various ways that evidence can be taken are described in a paper title "International Commercial Litigation in Japan" although it appear that much of this might work in civil trials also.  A MUST READ if you are going the do it yourself route in Japan.

The importance of serving process properly is seen by following decision by  the Japanese Supreme Court regarding a foreign divorce case that occurred before the initiation of the Japanese "counter divorce case.

Judgment upon case where jurisdiction of the Japanese court was acknowledged in an action claiming divorce from a Japanese resident in Japan against a German resident in Germany.

Also, according to the website of Kitahama Partners, Attorneys and Counselors at Law

"Service upon an individual or entity within Japan will be performed in the manner set out in articles 99-107 and 109-113 of the Code of Civil Procedure (CCP). The court will first attempt service by mail. If this is unsuccessful, it can then choose from various other available methods, including service by publication after a party's motion requesting it."

They also say that,

"One tactic commonly used by Japanese defendants in order to block enforcement of a foreign judgment is to file parallel litigation in a Japanese court. That is, proceedings initially are commenced against a Japanese defendant in a foreign court. That defendant then files for a declaratory judgment in a Japanese court. The judgment sought would absolve him of any liability to the foreign plaintiff which might be imposed by the foreign court based on the issues before it. An enforcement judgment will not be issued in Japan if there is a prior final judgment on the same subject-matter rendered by a Japanese court. A Japanese court, however, may suspend or delay its proceedings if the plaintiff in the foreign litigation shows that the foreign litigation was commenced prior to that in Japan. Thus, any individual or entity which may need to seek enforcement of a foreign judgment in Japan should be aware of this tactic and the potential need to appear and defend against Japanese declaratory judgment proceedings."

Others have suggested:

You may have to submit a request on a form USM-94, available at the office of any United States Marshal.

You may wish to make a motion as part of your application which asks a judge to approve substitute service. This may be personal service on a close relative for example and may include enough time for that close relative to forward to her. The judge may order service to her last known address etc. With whatever the judge orders, you have service in a method ordered by the court, something hard to dispute later on.

Alternately, if she has relatives known to you, you may wish to subpoena them to be examined under oath at a verbatim reporting service or official examiner's office provided by the court. It may save time by writing the relative by registered mail with a return address other than yours ( a friends, lawyers etc) advising them that they will be required to provide such information to the court. Further, that in the event that they do not provide the information, you will seek costs and damages in small claims court against them for the court action to produce the information because they could have simply provided the mother's information in a simple affidavit to begin with.

You could also make a motion to the court, with notice to the relatives beforehand, asking the court to order the relatives to produce the information for you.

Every Japanese has a registered address in Japan.  It is on their Residency Registration. (Which is the whole purpose of the Residency Registration.  To document where a Japanese citizen lives.)  In Japanese, its called their jyuminhyou.  I believe that they are required by law to keep it up to date within a certain number of days.  30, 60, or 90 - I cant remember which. Also, unfortunately, I cannot remember which law.  It may be a "regulation".   But I have had discussions with the ku-yakusyo about this, as my son's mother was not keeping hers up to date.  So I know there is a law or regulation.

So how about sending something to this official legal address??  Now the problem might be getting proof that it was sent there.  She might not sign, she may not be there, etc.  But if you can also get a translated copy of the appropriate law or regulation, then this could work.

In reality, if she has disappeared, she has probably not updated her jyuuminhyou.  Or it may be at her parents' home, and they just claim ignorance.  These are the standard MOs of a missing Japanese spouse.  And in reality, the local government offices do not enforce the regulations. They as much told me so.  Although you can try to force them to, as I did, but there are no guarantees, say they.  But since it is required by law to be updated, if you can get proof of that law, perhaps it would be enough for a US court.  That would be a nice turn of the tables for those who use the lax enforcement in Japan to their advantage, and for all the beaurocrats who refuse to help foreigners find such a missing Japanese spouse.

I can give you references to what I think are the laws in Japanese, but I have not been able to find them in English yet.  (And am not entrely sure these are them, but if you know a Japanese who would read these for you, it would be a good start.)

Residency Law 1 in Japanese

Residency Law 2 in Japanese

A lawyer or judicial scrivenger in Japan can probably tell you exactly which parts are relevant to you, and you could have it translated.  Maybe the lawyer would have ideas on how to prove something had been delivered there.

If you do this, please donate the translation back to us for the website!!

If you are interested in trying to get the jyuuminhyou yourself, then read up on koseki and jyuuminhyou on the website.  Then ask further questions on this list.

For finding out where she really may be, we have one recommended PI on the website.  I would try him.  If you use a different one, I suggest running the name past this list.  I know there have been several bad experiences, and one person on this list said they want to add theirs to the PI blacklist.

Resources

• Crowe Foreign Services corporation
• Process Service Network