Companies Act

An Action to enforce liability is under the exclusive jurisdiction of the district court having jurisdiction over the location of the head office of the stock company or of the wholly owned subsidiary company resulting from a share exchange, etc. (hereinafter referred to as a "stock company, etc." in this Section).

A shareholder, etc. or a stock company, etc. may intervene in a suit relating to an action to enforce liability (in cases of a qualified former shareholder, limited to one related to the liabilities or obligations for which the fact causing them occurred by the time when the act set forth in the items of Article 847-2, paragraph (1) became effective; in cases of a shareholder of an ultimate, wholly owning parent company, etc., limited to the action to enforce specific liability) either as a co-party or for assisting either of the parties; provided, however, that this does not apply when it will unduly delay the court proceedings or impose an excessive administrative burden on the court.

Persons set forth in the following items, even if the person is not a shareholder of a stock company, etc., may intervene in a suit related to an action to enforce liability filed by the person prescribed in each of those items for assisting either of the parties; provided, however, that this does not apply in cases prescribed in the proviso to the preceding paragraph:

the wholly owning parent company resulting from a share exchange, etc. (meaning the wholly owning parent company of a wholly owned subsidiary company resulting from a share exchange, etc. (excluding one that has a wholly owning parent company at the time when the act set forth in the items of Article 847-2, paragraph (1), share exchange or share transfer set forth in paragraph (3), item (i) of the same Article, or the merger set forth in item (ii) of the same paragraph becomes effective) in the cases prescribed in the items of Article 847-2, paragraph (1) or the cases set forth in paragraph (3), item (i) of the same Article (including cases where it is applied mutatis mutandis pursuant to paragraphs (4) and (5) of the same Article; hereinafter the same applies in this item) or item (ii) (including cases where it is applied mutatis mutandis pursuant to paragraphs (4) and (5) of the same Article; hereinafter the same applies in this item), which is not subject to a stock company becoming its wholly owning parent company through a share exchange or share transfer by that wholly owning parent company or through a merger in which the wholly owning parent company is the company that disappears; hereinafter the same applies in this Article):qualified former shareholder; and

ultimate, wholly owning parent company, etc.:shareholder of the ultimate, wholly owning parent company, etc.

In order for a stock company, etc., wholly owning parent company resulting from a share exchange, etc., or ultimate, wholly owning parent company, etc. to intervene in a suit relating to an action to enforce liability to assist a director (excluding an audit and supervisory committee member and audit committee member), executive officer, liquidator or a person who was formerly in such a position of the stock company that constitutes that stock company, etc., the wholly owned subsidiary company resulting from the share exchange, etc. as regards the wholly owning parent company resulting from the share exchange, etc., or the wholly owned subsidiary company, etc. of the ultimate, wholly owning parent company, etc., it must obtain the consent of the persons specified in each of the following items for the categories set forth respectively in those items:

company with company auditor:the company auditor (if there are two or more company auditors, each of relevant company auditors); or

company with audit and supervisory committee:each audit and supervisory committee member; and

company with nominating committee, etc.:each audit committee member.

When a shareholder, etc. files an action to enforce liability, the shareholder, etc. must give notice of suit to the stock company, etc. without delay.

When a stock company, etc. files an action to enforce liability or receives the notice of suit set forth in the preceding paragraph, it must give public notice to that effect or give notice thereof to its shareholders without delay.

If a stock company, etc. has a wholly owning parent company resulting from a share exchange, etc., and an action to enforce liability set forth in the preceding paragraph or notice of suit is related to liability or an obligation whose causative fact has occurred by the time when the acts set forth in the items of Article 847-2, paragraph (1) became effective, the stock company, etc. must file the action to enforce liability or give notice that the notice of suit was received to the wholly owning parent company resulting from the share exchange, etc. without delay in addition to the public notice or notice pursuant to the provisions of the preceding paragraph.

If a stock company, etc. has an ultimate, wholly owning parent company, etc., and the action to enforce liability set forth in paragraph (5) or notice of suit are related to specific liability, the stock company, etc. must file the action to enforce liability or notify that the notice of suit was received to the ultimate, wholly owning parent company, etc. without delay in addition to the public notice or notice pursuant to the provisions of the same paragraph.

As regards the application of the provisions of paragraph (6) if the wholly owning parent company resulting from a share exchange, etc. as referred to in paragraph (6) holds all of the issued shares of the wholly owned subsidiary company resulting from the share exchange, etc. and as regards the application of the provisions of the preceding paragraph if the ultimate, wholly owning parent company referred to in that paragraph holds all of the issued shares in the stock company, the phrase "in addition to" in these provisions is read as "in lieu of".

With regard to application of the provisions of paragraphs (5) through (7) to a stock company, etc. that is not a public company, the phrase "give public notice to that effect or give notice thereof to its shareholders" in paragraph (5) is read as "give notice to that effect to its shareholders", and "public notice or notice" in paragraphs (6) and (7) is read as "notice" respectively.

In the cases set forth in the following items, the stock company prescribed in each of those items must make a public notice to that effect or make a notice to a person prescribed in those items without delay:

if a wholly owning parent company resulting from a share exchange, etc. receives a notice pursuant to the provisions of paragraph (6):a qualified former shareholder; and

if an ultimate, wholly owning parent company, etc. receives a notice pursuant to the provisions of paragraph (7):shareholders of the ultimate, wholly owning parent company, etc.

For application of the provisions of the preceding paragraph if a stock company prescribed in the items of the same paragraph is not a public company, "make public notice or make notice to the person prescribed in each of those items" in the same paragraph is read as "make notice to the person prescribed in each of those items".

When a stock company, etc. settles an action to enforce the liability of a director (excluding an audit and supervisory committee member and audit committee member), executive officer, liquidator or a person who was formerly in such a position of that stock company, etc., it must obtain the consent of the persons specified in each of those items for the categories set forth respectively in those items:

company with company auditor:the company auditor (if there are two or more company auditors, each of the company auditors);

company with audit and supervisory committee:each audit and supervisory committee member; and

company with nominating committee, etc.:each audit committee member.

The provisions of Article 267 of the Code of Civil Procedure do not apply to the subject-matter of a suit relating to an action for to enforce liability if a stock company, etc. is not a party to settlement in relevant suit; provided, however, that this does not apply when relevant stock company, etc. has given approval.

In the case prescribed in the preceding paragraph, the court must notify the stock company, etc. of the contents of the settlement and give the stock company notice to the effect that it should state its objection to relevant settlement, if any, within two weeks.

If the stock company, etc. does not raise any objections in writing within the period referred to in the preceding paragraph, it is deemed to have given the approval for shareholders, etc. to effect a settlement with the contents of the notice under the provisions of that paragraph.

The provisions of Article 55, Article 102-2, paragraph (2), Article 103, paragraph (3), Article 120, paragraph (5), Article 213-2, paragraph (2), Article 286-2, paragraph (2), Article 424 (including the cases where it is applied mutatis mutandis pursuant to Article 486, paragraph (4)), Article 462, paragraph (3) (limited to the portion relating to the obligations assumed for the portion not exceeding the distributable amount prescribed in the proviso to that paragraph), Article 464, paragraph (2) and Article 465, paragraph (2) do not apply in cases of effecting a settlement in a suit relating to an action to enforce liability.

Even if a shareholder who has filed an action to enforce liability or a shareholder who has intervened in a suit relating to the action to enforce liability as a co-party ceases to be a shareholder during the pendency of relevant suit, that person may conduct the suit in the following cases:

when that person acquires shares in the wholly owning parent company of the relevant stock company through a share exchange or share transfer by that stock company; or

when, through a merger in which the relevant stock company is the company that disappears, that person acquires shares in the stock company incorporated as a result of the merger or acquires shares in the stock company surviving the merger or in its wholly owning parent company.

The provisions of the preceding paragraph apply mutatis mutandis when, in the case set forth in item (i) of that paragraph (including the cases where it is applied mutatis mutandis pursuant to this paragraph or the following paragraph), the shareholder referred to in the preceding paragraph ceases to be a shareholder of shares in the wholly owning parent company of the relevant stock company during the pendency of the suit referred to in that paragraph. In these cases, the term "the relevant stock company" in that paragraph (including the cases where it is applied mutatis mutandis pursuant to this paragraph or the following paragraph) is deemed to be replaced with "the relevant wholly owning parent company".

The provisions of paragraph (1) apply mutatis mutandis when, in the case set forth in item (ii) of that paragraph (including the cases where it is applied mutatis mutandis pursuant to the preceding paragraph or this paragraph), the shareholder referred to in paragraph (1) ceases to be a shareholder of shares of the stock company that is incorporated in the merger or the stock company surviving a merger, or the wholly owning parent company thereof, during the pendency of the suit referred to in that paragraph. In these cases, the term "the relevant stock company" in that paragraph (including the cases where it is applied mutatis mutandis pursuant to the preceding paragraph and this paragraph) is deemed to be replaced with "the stock company that is incorporated in the merger or the stock company surviving a merger, or the wholly owning parent company thereof".

If a shareholder, etc. who has filed an action to enforce liability wins the suit (including cases of partially winning the suit), and the shareholder has paid the necessary costs (excluding court costs) or is to pay a fee to an attorney, a legal professional corporation, or an attorney and registered foreign joint corporation with respect to the suit relating to the action to enforce liability, the shareholder may demand the relevant stock company, etc. to pay an amount that is found to be reasonable, not exceeding the amount of that costs or the amount of that fee.

Even if a shareholder, etc. who has filed an action to enforce liability loses the case, the shareholder, etc. is not obligated to compensate the relevant stock company, etc. for the damages arising as a result thereof, except when the shareholder, etc. was in bad faith.

The provisions of the preceding two paragraphs apply mutatis mutandis to any shareholder, etc. who intervened in the suit referred to in Article 849, paragraph (1) pursuant to the provisions of that paragraph.

If an action to enforce liability has been filed, and the plaintiff and the defendant, in conspiracy, caused the court to render a judgment for the purpose of prejudicing the rights of the stock company, etc., which are the subject-matter of the suit relating to the action to enforce liability, the person set forth in the following items may enter an appeal against the final judgment that became final and binding concerning the action prescribed in those items, by filing an action for a retrial:

a shareholder or stock company, etc.:an action to enforce liability;

a qualified former shareholder:an action to enforce liability (limited to a liability or obligation for which the fact causing them occurred by the time when the acts set forth in the items of Article 847-2, paragraph (1) became effective); and

a shareholder of an ultimate, wholly owning parent company, etc.:an action to enforce specific liability.

The provisions of the preceding Article apply mutatis mutandis to the appeal for a retrial referred to in the preceding paragraph.