Civil Enforcement Act

Even before a commencement order for a secured immovable property auction, if it is particularly necessary if the obligor or the owner or possessor of immovable property has committed a price reducing act (meaning the price reducing act prescribed in Article 55, paragraph (1); the same applies in this paragraph), the enforcement court, upon petition by a person seeking to file a petition for a relevant secured immovable property auction, may establish the provisional order stated in any of the items of paragraph (1) of that Article and the provisional order to post a public notice stated in those items, until the purchaser pays the price; provided, however, that this does not apply when the reduction in the price caused by the price reducing act or the extent of the likelihood is slight.

In cases of the preceding paragraph, the provisional order stated in Article 55, paragraph (1), item (ii) or (iii) may not be issued unless either of the following cases applies:

cases where the obligor referred to in the preceding paragraph or the owner of the immovable property referred to in the paragraph possesses the immovable property; or

cases where the title to possession held by the possessor of the immovable property referred to in the preceding paragraph may not be duly asserted against a person who has filed a petition under the paragraph.

To file a petition under paragraph (1), the documents to be submitted pursuant to the provisions of Article 181, paragraphs (1) through (3) in cases of filing a petition for a secured immovable property auction must be presented.

When a petitioner fails to submit a document proving that the petitioner has filed a petition for the secured immovable property auction referred to in paragraph (1) within three months from the day of receipt of the notice of an order granting the provisional order referred to in that paragraph, the enforcement court must set aside the order, upon petition by the respondent or the owner of the immovable property referred to in the paragraph.

The provisions of Article 55, paragraph (3) through (5) apply mutatis mutandis to an order under paragraph (1), the provisions of paragraph (6) of that Article apply mutatis mutandis to a judicial decision on the petition referred to in paragraph (1) or in paragraph (5) of that Article as applied mutatis mutandis pursuant to this paragraph, the provisions of paragraph (7) of that Article apply mutatis mutandis to a ruling under paragraph (5) of that Article as applied mutatis mutandis pursuant to this paragraph, the provisions of paragraph (8) and paragraph (9) of that Article and Article 55-2 apply mutatis mutandis to a ruling under paragraph (1) (excluding a ruling establishing the provisional order stated to in Article 55, paragraph (1), item (i) or the provisional order to post a public notice stated in that item), the provisions of Article 55, paragraph (10) apply mutatis mutandis to expenses required for the petition referred to in paragraph (1) or carrying out a ruling provided in that paragraph (excluding a ruling establishing the provisional order stated in paragraph (1), item (i) of that Article or the provisional order to post a public notice stated in that item), the provisions of Article 83-2 apply mutatis mutandis to the case where a ruling under paragraph (1) (limited to a ruling establishing the provisional order stated in Article 55, paragraph (1), item (iii) and the provisional order to post a public notice stated in that item) has been carried out. In this case, the phrase "possessor other than the obligor" in Article 55, paragraph (3) is deemed to be replaced with "possessor who is neither the obligor nor the owner of the immovable property".

The provisions of Article 44 apply mutatis mutandis to the enforcement of a security interest in immovable property, the provisions of Section 2, Subsection 1, Division 2 of the preceding Chapter (excluding Article 81) apply mutatis mutandis to a sale-at-auction of secured immovable property, and the provisions of Division 3 of the Subsection apply mutatis mutandis to enforcement against earnings from secured immovable property.

The provisions of Section 2, Subsection 2 of the preceding Chapter and Articles 181 through 184 apply mutatis mutandis to the auctioning of property as a means of enforcing a security interest in a vessel. In this case, the phrase "present an authenticated copy of an enforceable title of obligation and make a prima facie showing of the grounds prescribed in that paragraph" in Article 115, paragraph (3) is deemed to be replaced with "present any of the documents to be submitted pursuant to the provisions of Article 181, paragraph (1) (excluding item (i)), paragraph (2), or paragraph (3) as applied mutatis mutandis pursuant to Article 189 or submit electronic or magnetic records to be submitted pursuant to these provisions, except in the cases where a prima facie showing of the grounds prescribed in that paragraph is made and a security interest has been registered (excluding provisional registration)," and the term "a general statutory lien" in Article 181, paragraph (1), item (ii), (c) is deemed to be replaced with "a statutory lien."

The auctioning of movables as a means of enforcing a security interest (referred to as an "auction of movables" below) is commenced only in any of the following cases:

cases where the obligee has submitted the movables to a court enforcement officer;

cases where the obligee has submitted to a court enforcement officer a document proving that the possessor of the movables has consented to a seizure; or

cases where the obligee has submitted a transcript of a written ruling for the permission referred to in the following paragraph to a court enforcement officer, and that ruling has been served on the obligor before or simultaneously with a search under Article 123, paragraph (2) as applied mutatis mutandis pursuant to Article 192.

An enforcement court may, upon petition by an obligee who has submitted a document proving the existence of a security interest, permit commencement of an auction of movables in connection with that security interest; provided, however, that this does not apply to cases where the movables do not exist at the place or in the container prescribed in Article 123, paragraph (2).

An order of the permission referred to in the preceding paragraph must be served upon the obligor.

An appeal may be filed against a judicial decision on the petition referred to in paragraph (2).

The obligor or the owner of movables may assert the absence or extinguishment of the security interest or the extinguishment of part of the claim secured by the security interest as the basis for filing an objection to a seizure connected with an auction of movables.

The provisions of Section 2, Subsection 3 of the preceding Chapter (excluding Article 123, paragraph (2), Article 128, Article 131 and Article 132) and Article 183 apply mutatis mutandis to an auction of movables, the provisions of Article 128, Article 131 and Article 132 apply mutatis mutandis to the auctioning of movables for exercise of a general statutory lien, and the provisions of Article 123, paragraph (2) apply mutatis mutandis to an auction of movables in the case referred to in Article 190, paragraph (1), item (iii).

Enforcement of a security interest in the claim prescribed in Article 143 or the property right prescribed in Article 167, paragraph (1) (referred to as "any other property right" in this paragraph) is commenced only when a document or electronic or magnetic record proving the existence of the security interest (or, for a security interest in any other property right for which registration is required in the case of transfer of the right and which is not a general statutory lien, if the security interest has been registered, etc. (excluding provisional registration) when a petition for enforcement of a security interest has been filed or a document or electronic or magnetic record prescribed in Article 181, paragraph (1), item (ii), (a) or (b) or paragraph (2) or (3) has been submitted). The same applies to the exercise of a security interest by a person having a security interest, conducted pursuant to the provisions of the Civil Code or any other Act against money or any other property to be received by the obligor as a result of a sale, lease or loss of or damage to the subject matter, establishment of a real right on the subject matter, or expropriation under the Land Expropriation Act (Act No. 219 of 1951) or any other administrative disposition.

The provisions of Section 2, Subsection 4, Division 1 of the preceding Chapter (excluding Article 146, paragraph (2), Article 152 and Article 153) and Articles 182 through 184 apply mutatis mutandis to the enforcement or exercise of a security interest prescribed in the preceding paragraph, the provisions of Article 146, paragraph (2), Article 152 and Article 153 apply mutatis mutandis to the enforcement or exercise of a general statutory lien prescribed in the preceding paragraph, and the provisions of Article 167-17 apply mutatis mutandis to the case where an obligee who has submitted a document proving that the obligee has a general statutory lien (limited to one pertaining to Article 306, item (iii) of the Civil Code) for property of the obligor has filed a petition under Article 197, paragraph (2) or a petition under Article 206, paragraph (2), respectively.

Notwithstanding the provisions of Article 145, paragraph (2) as applied mutatis mutandis pursuant to the preceding paragraph, in the case where an obligee claims a monetary claim pertaining to an obligation concerning the custody of a child under the provisions of Article 766-3 of the Civil Code (including as applied mutatis mutandis pursuant to Articles 749, 771 and 788 of that Code), the enforcement court may, if it finds it necessary when issuing an order of seizure for the enforcement of a general statutory lien (limited to one pertaining to Article 306, item (iii) of that Code), interrogate the obligor.

The provisions of Article 38, Article 41 and Article 42 apply mutatis mutandis to the auctioning of property as a means of enforcing a security interest, enforcement against earnings from secured immovable property and the enforcement and exercise of a security interest prescribed in paragraph (1) of the preceding Article.

An auction based on a right of retention and an auction for a realization under the Civil Code, the Commercial Code or any other Act is governed by the rules on the auctioning of property as a means of enforcing a security interest.