If a lawsuit is filed with a foreign court against a person staying in Japan, the court has to serve the complaint, the decision and other documents to the defendant in Japan. In addition, the court has to take evidence, such as the interrogation of witnesses in Japan.
Such “judicial acts,” including service of documents and taking of evidence, are carried out by the courts, which are national agencies, and are accompanied by legal effects (exercise of jurisdiction), and they cannot be freely carried out by foreign courts in Japan. Another state exercising jurisdiction over the service of documents or taking evidence in Japan requires Japan’s prior consent.
Civil and Commercial trial:
Since Japan is a Contracting State to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Service Convention) and the Convention on Civil Procedure (the CP Convention), Japan has agreed that Japan will respond to other Contracting States to these conventions if they request Japan to serve documents or take evidence concerning civil or commercial cases under the rules of these conventions (see Annexes 1 – 3, 5).
If a foreign state is not a Contracting State to none of these conventions but it has a bilateral treaty or a comprehensive agreement on mutual judicial assistance between Japan, the requests of the state will be responded subject to them. If it has not any agreement, Japan will respond to such request of judicial assistance in each specific case under the domestic law “the Law Relating to the Reciprocal Judicial Aid to be Given at the Request of Foreign Courts (link)” (see Annexes 4 and 5.).
Criminal trial:
If a foreign state requests Japan to serve documents and take evidence concerning a criminal trial, Japan will respond to the request pursuant to the Law Relating to the Reciprocal Judicial Aid to be Given at the Request of Foreign Courts (link). (If the foreign state has concluded a bilateral treaty on mutual criminal assistance, Japan will respond pursuant to the treaty.)
Law Relating to the Reciprocal Judicial Aid to be Given at the Request of Foreign Courts:
Law No. 63 of the 38th year of Meiji (13th March, 1905), as amended by Law No. 7 of the 45th year of Meiji (29th March, 1912) and by Law No. 17 of the 13th year of Showa(22nd March, 1938)
Article 1.A Court shall, at the request of a Foreign Court, render judicial aid in serving papers or taking evidence in connection with cases on civil or criminal matters.
The said judicial aid shall be given by the District Court which has jurisdiction over the place where the required proceedings are to take place.Article 1.-(2)The said judicial aid shall be rendered under the following conditions:1.The request shall be made through the diplomatic channel.
2.The request for the service of papers shall be made in writing stating the name, nationality, and domicile or residence of the person on whom the papers are to be served.
3.The request to take evidence shall be made in writing stating the names of the parities to the litigation, the manner in which the evidence is to be taken, the name, nationality, and domicile or residence of the person to be examined, and the matters to be investigated. In regard to criminal matters, the request shall be accompanied by a statement of the essential facts of the case.
4.In case the letter of request and documents annexed thereto are not written in the Japanese language, translation thereof into Japanese shall be appended to the original.
5.The State to which the Court making the request belongs shall guarantee the payment of the expenses incurred in the execution of the letter of request.
6.The State to which the Court making the request belongs shall assure that it could render judicial aid in the same or similar matters if so requested by the Japanese Courts.
In case where treaties or other documents of similar nature provides otherwise than as mentioned in the preceding paragraph, such provisions shall prevail.
Article 2.In case the execution of the letter of request falls within the jurisdiction of a Court other than that to which the request has been made, the latter shall transfer the same to the proper Court.Article 3.The letter of request shall be executed in accordance with the laws of Japan.
Source: Mofa
