Section 1 General Rules
第一節 通則
Article 184Methods of Realization
第百八十四条(換価の方法)
Realization of the property referred to in Article 78, paragraph (2), items (i) and (ii) is conducted pursuant to the provisions of the Civil Enforcement Act and other laws and regulations concerning a procedure for enforcement except when it is conducted through sale by private contract pursuant to those provisions.
第七十八条第二項第一号及び第二号に掲げる財産の換価は、これらの規定により任意売却をする場合を除き、民事執行法その他強制執行の手続に関する法令の規定によってする。
A bankruptcy trustee may realize the collateral for the right of separate satisfaction. In this case, the holder of the right of separate satisfaction may not refuse the realization pursuant to the provisions of the Civil Enforcement Act and other laws and regulations concerning a procedure for enforcement.
In the cases referred to in the preceding two paragraphs, the provisions of Article 63 and Article 129 of the Civil Enforcement Act (including as applied mutatis mutandis pursuant to the provisions of that Act and other laws and regulations concerning a procedure for enforcement) do not apply.
前二項の場合には、民事執行法第六十三条及び第百二十九条(これらの規定を同法その他強制執行の手続に関する法令において準用する場合を含む。)の規定は、適用しない。
In the case referred to in paragraph (2), if the amount to be received by a holder of a right of separate satisfaction has not been finalized, a bankruptcy trustee must separately deposit the fee. In this case, the right of separate satisfaction exists upon the fee deposited.
Article 185Designation of the Period for Disposal by Holders of Rights of Separate Satisfaction
第百八十五条(別除権者が処分をすべき期間の指定)
If a holder of a right of separate satisfaction has a right to dispose of the collateral for the right of separate satisfaction by means other than that prescribed by law, upon the petition of a bankruptcy trustee, the court may specify a period during which the holder of the right of separate satisfaction should dispose of the collateral.
A holder of a right of separate satisfaction that fails to dispose the collateral within the period stated in the preceding paragraph loses the right referred to in that paragraph.
An immediate appeal may be filed against a judicial decision on the petition referred to in paragraph (1).
第一項の申立てについての裁判に対しては、即時抗告をすることができる。
When a judicial decision on the petition referred to in paragraph (1) and a judicial decision on the immediate appeal referred to in the preceding paragraph are made, the written judgments must be served upon the parties concerned. In this case, the provisions of the main clause of Article 10, paragraph (3) do not apply.
Section 2 Extinguishment of Security Interests
第二節 担保権の消滅
Article 186Petitions for Permission for Extinguishment of Security Interests
第百八十六条(担保権消滅の許可の申立て)
If any security interest (meaning a special statutory lien, pledge, mortgage, or a right of retention under the provisions of the Commercial Code or the Companies Act; the same applies below in this Section) exists at the time of commencement of bankruptcy proceedings against property that belongs to the bankruptcy estate, if it is in the common interest of bankruptcy creditors to extinguish the security interests by selling the property by private contract, a bankruptcy trustee may file a petition to the court for permission to sell the property by private contract and extinguish all security interests on the property by paying to the court the amount of money specified in each of the following items in accordance with the category stated in the respective items; however, this does not apply if it is found that this would unduly harm the interest of the persons who hold the security interests:
破産手続開始の時において破産財団に属する財産につき担保権(特別の先取特権、質権、抵当権又は商法若しくは会社法の規定による留置権をいう。以下この節において同じ。)が存する場合において、当該財産を任意に売却して当該担保権を消滅させることが破産債権者の一般の利益に適合するときは、破産管財人は、裁判所に対し、当該財産を任意に売却し、次の各号に掲げる区分に応じてそれぞれ当該各号に定める額に相当する金銭が裁判所に納付されることにより当該財産につき存するすべての担保権を消滅させることについての許可の申立てをすることができる。ただし、当該担保権を有する者の利益を不当に害することとなると認められるときは、この限りでない。
when a bankruptcy trustee seeks to transfer part of the amount of money that can be obtained from the counterparty through sale (excluding the amount of money consisting of the amount of actual costs already paid or to be paid in the future from the bankruptcy estate for concluding and performing the sales contract and the amount of consumption tax, etc. to be imposed on the transfer of the property (meaning the amount of consumption tax and the amount of local consumption tax to be imposed based on the former amount as a tax base; hereinafter the same applies in this Section), which is to be borne by the counterparty under the sales contract; referred to below as "proceeds" in this Section) into the bankruptcy estate: the amount obtained by deducting the amount of money to be deducted from the proceeds and added to the bankruptcy estate (referred to below as the "money deducted from the proceeds and added to the bankruptcy estate" in this Section) from the amount of proceeds; or
cases other than the one stated in the preceding item:the amount of proceeds.
In the case stated in item (i) of the preceding paragraph, a bankruptcy trustee that seeks to file a petition referred to in that paragraph must consult with the person that holds the security interest in question in advance with regard to the amount of money deducted from the proceeds and added to the bankruptcy estate.
The petition referred to in paragraph (1) must be filed by means of a document stating the following particulars (referred to below as a "written petition" in this Section):
第一項の申立ては、次に掲げる事項を記載した書面(以下この節において「申立書」という。)でしなければならない。
the indication of the property that is the subject of a security interest;
担保権の目的である財産の表示
the amount of proceeds (if the property referred to in the preceding item consists of two or more pieces of property, the amount of proceeds and the amount allocated to each piece of property);
the name of the counterparty to the sale of the property referred to in item (i);
第一号の財産の売却の相手方の氏名又は名称
the indication of the security interest required to be extinguished;
消滅すべき担保権の表示
the amount of claim secured by the security interests referred to in the preceding item;
in the case stated in paragraph (1), item (i), the amount of money to be deducted from the proceeds and added to the estate (if the property referred to in item (i) consists of two or more pieces of property, the amount of money to be deducted from the proceeds and added to the bankruptcy estate and the amount allocated to each piece of property); and
the content and process of the consultation under the provisions of the preceding paragraph.
前項の規定による協議の内容及びその経過
A document stating the content of the sales contract for the sale of the property referred to in item (i) of the preceding paragraph (including, of the costs required for concluding and performing the sales contract, the amount of actual costs already paid or to be paid in the future from the bankruptcy estate, and an amount equivalent to the amount of consumption tax, etc. to be imposed on the transfer of the property, which is to be borne by the counterparty under the sales contract) must be attached to the written petition.
If a petition referred to in paragraph (1) is filed, the written petition and the document referred to in the preceding paragraph must be served upon the person that holds the security interest referred to in paragraph (3), item (iv) which is stated in the written petition (referred to below as a "designated security interest holder" in this Section). In this case, the provisions of the main clause of Article 10, paragraph (3) do not apply.
Article 187Petitions for Exercise of Security Interests
第百八十七条(担保権の実行の申立て)
If a designated security interest holder has an objection to the petition referred to in paragraph (1) of the preceding Article, they may, within one month after the day on which the written petition and the document referred to in paragraph (4) of that Article are served upon all designated security interest holders pursuant to the provisions of paragraph (5) of that Article, submit to the court a document that certifies their filing of a petition for exercise of security interests.
The court may extend the period referred to in the preceding paragraph upon the petition of a designated security interest holder, only if the designated security interest holder has compelling reasons.
If there is an agreement between a bankruptcy trustee and a designated security interest holder with regard to the amounts of proceeds and of money to be deducted from the proceeds and added to the estate (in the case stated in paragraph (1), item (ii) of the preceding Article, the amount of proceeds), the designated security interest holder may not file a petition for exercise of security interests.
A designated security interest holder may not file a petition for exercise of security interests after the period referred to in paragraph (1) (if it is extended pursuant to the provisions of paragraph (2), the extended period; the same applies below in this Section) has expired, except when an order of permission referred to in Article 189, paragraph (1) is reversed pursuant to the provisions of Article 190, paragraph (6) or an order of non-permission referred to in that paragraph becomes final and binding.
If the petition for exercise of security interests has been withdrawn or dismissed without prejudice after a document that certifies the filing of a petition for exercising security interests referred to in paragraph (1) was submitted, the document is deemed not to have been submitted. The same applies when the procedure for exercising security interests referred to in that paragraph is reversed pursuant to the provisions of Article 63 of the Civil Enforcement Act as applied mutatis mutandis pursuant to Article 188 of that Act, or Article 129 of that Act as applied mutatis mutandis pursuant to Article 192 of that Act (including as applied mutatis mutandis pursuant to that Act and other laws and regulations concerning a procedure for enforcement).
After an order of non-permission stated in Article 189, paragraph (1) has become final and binding, if a petition for exercising security interests referred to in paragraph (1) has been withdrawn or dismissed and a bankruptcy trustee files a petition referred to in paragraph (1) of the preceding Article, the designated security interest holder that has filed the petition for exercising security interests may not, notwithstanding the provisions of paragraph (1), submit the document that certifies their filing of the petition for exercising security interests referred to in that paragraph.