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Service of
Process in
Japan
From
the U.S. State Department circular on
Japan Judicial
Assistance:
Service of Process
: The United States and Japan are a parties to the Hague Convention
on the Service Abroad of Judicial and Extra Judicial Documents in
Civil and Commercial Matters. Persons requesting service of process
of U.S. documents in Japan in civil and commercial matters should
execute the USM-94 form or the new interactive Service Convention
form available from the Hague Conference on Private International
Law web page. The request form should be completed in duplicate and
submitted with two sets of the documents to be served directly by
the requesting attorney or clerk of court to the Japanese Central
Authority. The Japanese Central Authority is Ministry of Foreign
Affairs, 2-2-1 Kasumigaseki Chiyoda-ku, Tokyo 100-8919 Japan. The
person executing the request form should be either an attorney or
clerk of court. The applicant should include attorney at law or
clerk of court title on the identity and address of applicant and
signature/stamp fields. See the U.S. response to the 2003
Questionnaire in preparation for the Special Commission on the
Practical Operation of the Convention. Question 17.3 addressed the
issue of who is authorized under U.S. law to execute a request under
the Convention. Attorneys should cite Rule 4 of the Federal Rules
of Civil Procedure or comparable state statute permitting attorneys
to execute service requests. Proof of service is transmitted to the
requester by the Japanese central authority through the Japanese
embassy and consulates in the United States. For general guidance
about how to transmit requests for service of process, see our Hague
Service Convention feature. See also Japan’s response to the 2003
Questionnaire in preparation for the Special Commission on the
Practical Operation of the Hague Service Convention and the new
edition of the Practical Handbook on the Operation of the Hague
Service Convention.
Service of Criminal
Subpoenas
: U.S. consular officers are permitted to serve criminal subpoenas
on U.S. citizens and U.S. Lawful Permanent Residents abroad pursuant
to 22 CFR 92.86, when specifically authorized by the Department of
State.
Service on a member of
the
U.S.
Military in Japan:
It is possible to effect service on members of the U.S. Armed Forces
in Japan through the Japanese central authority. Service by mail
may also be used if state law permits (APO and FPO are U.S. mail).
Also, contact the Judge Advocate General’s (JAG) Office at the
Pentagon for the particular branch of the service (tel:
703-545-6700).
EXTRACTS
FROM
THE ANSWER BY
THE JAPANESE GOVERNMENT TO THE QUESTIONNAIRE ACCOMPANYING THE
PROVISIONAL VERSION OF THE NEW PRACTICAL HANDBOOK ON OPERATION OF
THE HAGUE CONVENTION OF 15 NOVEMBER 1965 ON THE SERVICE ABROAD OF
JUDICIAL AND EXTRAJUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL MATTERS
Hachioji Branch
of Tokyo District Court, Judgment, December 8, 1997
The plaintiff
filed a suit with the NY family court to claim for a return of a
child from the defendant. The show cause order accompanied by the
plaintiff's affidavit was sent directly to the defendant in Japan by
postal channel. The order was necessary to commence the procedure
but a Japanese translation thereof was not attached. The NY family
court rendered a judgment in favour of the plaintiff in the absence
of the defendant. The plaintiff sought enforcement of the judgment
in Japan.
Hachioji Branch
of Tokyo District Court held as follows and dismissed the case.
Japanese Code of
Civil Procedure requires as one of the conditions for recognition
and enforcement of a foreign judgment that the defeated defendant
has received service of summons or any other necessary orders to
commence procedures in light of enabling a defeated defendant to
arrange for his/her defense.
It is considered
that, for the purpose of enabling a Japanese defendant to arrange
for his/her defense, a
Japanese
translation must be attached to a document to be served and be
served in accordance with the due process of judicial co-operation.
In this case, the requirement for recognition and enforcement of a
foreign judgment is not met because the show cause order was sent to
the defendant without its translation.
Tokyo District Court, Judgment, February 24, 1998
The plaintiff
filed a claim with the German court. The consular agent in Japan
served the written complaint to the defendant by registered mail.
The German court rendered a judgment in favour of the plaintiff in
the absence of the defendant. The plaintiff sought enforcement of
the judgment in Japan.
Tokyo District
Court held as following
(these
are only the points concerning service);
(a)
The
consular agent may serve documents by registered mail as the method
under Article 8, paragraph 1 of the Convention.
(b)
It is not
against the principle of reciprocity under Article 21 of Vienna
Convention on the law of treaties that the State that has declared
the objection to Article 8, paragraph 1 of the Service Convention
performs service through its consular agents in Japan, which has not
declared such objection.
Supreme Court,
Judgment, April 28, 1998
This case
concerns an action for the recognition and enforcement of an order
issued by the Hong Kong
High Court before
Hong Kong was returned to China on July 1, 1997. Supreme Court held
as follows
(there
are only the points concerning service);
"Service of
summons or any other necessary orders to commence procedures"
against the defendant provided in Article 118ii of the Code of Civil
Procedure does not have to comply with the laws and rules of our
civil procedure. However it is required that the process of service
gives the defendant actual knowledge of the commencement of action
and not hinder the exercise of his/her right to defense. In
addition, the viewpoint of realizing clear and stable procedures
leads to the following interpretation of Article 118ii. Where a
convention is concluded regarding judicial co-operation between our
country and the judgment country for the service of judicial
documents and it is required that service of judicial documents
necessary to commence an action be undertaken in accordance with the
methods provided by the convention, process of service that does not
abide by the methods of the convention does not satisfy the
requirement provided in Article 118ii.
Japan and the
United Kingdom, which had sovereignty over Hong Kong at that time,
are parties to the Service Convention. Service, as in the present
case, by means of direct delivery by a person who is asked
personally to do so by the respondent is not permitted by the
Convention. Moreover we are unable to find a basis for it in the
bilateral treaty between our country and the United Kingdom, the
"Consular Treaty
between Japan and the United Kingdom of Great Britain and Northern
Ireland." Therefore service of the above-mentioned Notice of Motion
to the appellants should be regarded as an illegal action that does
not satisfy the requirement provided in Article 118ii of the Code of
Civil Procedure. |
