Date of
Judgment:
April 8, 2004
Issuing
Authority:
Supreme Court
Level of
the Issuing Authority: Final Instance
Type of
Procedure: Judicial(Civin( �b>
Subject
Matter: Others
Main
text of the judgment (decision):
1. The decision of the second
instance shall be quashed.
2.This case shall be remanded to the Nagoya High
Court.
Reasons:
Concerning
the grounds for the kokoku appeal argued by the counsel for kokoku appeal AKAO
Naoto
1. According to the record, the outline of the
history of this case is as follows.
The kokoku appellant filed a suit (hereinafter
referred to as the "Suit" ) at the Nagoya District Court to seek
declaration that the opposite party did not have a right to seek an injunction
under the Unfair Competition Prevention Law against the sales or export by the
kokoku appellant of the products indicated in Lists 1 and 2 appended to the
decision of the first instance (hereinafter referred to as the
"Products"), on the ground that the act of selling or exporting the
Products did not fall under the category of unfair competition prescribed in
Article 2, para. 1, sub-para. 1 of the Unfair Competition Prevention Law.
The kokoku appellant argued that the kokoku
appellant exported the Products from the Nagoya Port, and therefore the Nagoya
District Court governing this place had jurisdiction over the Suit pursuant to
Article 5, sub-para. 9 of the Code of Civil Procedure.
In response to this argument, the opposite party
filed a motion to transfer the proceedings for the Suit to the Osaka District
Court governing the opposite party's address pursuant to Article 16, para. 1 or
Article 17 of the Code of Civil Procedure, arguing that Article 5, sub-para. 9
of the Code of Civil Procedure should not apply to the Suit and therefore the
Nagoya District Court did not have jurisdiction over the Suit, and even if at
all the Nagoya District Court had jurisdiction, the proceedings for the Suit
should be transferred to another court in order to avoid delay in the
proceedings or in order to ensure fairness for the parties.
2. The court of the second instance rendered a
decision to transfer the proceedings for the Suit to the Osaka District Court
pursuant to Article 16, para. 1 of the Code of Civil Procedure, holding that it
cannot say that a tort was generally recognized as an act always bringing about
the right to seek restitution or right to seek an injunction, that the right to
seek an injunction under the Unfair Competition Prevention Law that was claimed
in the Suit was only accepted as one of quasi-property rights given only under
the provisions of individual statutes, and, therefore, the Suit did not
constitute "a suit relating to a tort" prescribed in Article 5,
sub-para. 9 of the Code of Civil Procedure and therefore did not come under the
jurisdiction of the Nagoya High Court.
3. However, the decision of the second instance
outlined above cannot be accepted for the following reasons.
Article 5, sub-para. 9 of the Code of Civil
Procedure allows, giving consideration to the convenience of the parties
concerned in presenting evidence, etc., a "suit relating to a tort"
to be filed at a court governing the "place of the tort." In light of
the purport, etc. of this provision, it is appropriate to construe that the
definition of a "suit relating to a tort" includes not only a suit
arising from a tort prescribed in the Civil Code but also includes a suit filed
by a person whose right or interests are infringed or are likely to be infringed
by an illegal act in order to seek an injunction preventing or suspending such
infringement.
The Unfair Competition Prevention Law defines
the types of acts of "unfair competition," such as the act of using a
goods or other indication which is identical with, or similar to, another
person's goods or other indication which is well-known among consumers, thereby
causing confusion with another person's goods or business (Article 2, para. 1),
and allows a person whose business interests are infringed or are likely to be
infringed by "unfair competition" to request an injunction preventing
or suspending such infringement against the person who is infringing such
business interests or is likely to do so (Article 3, para. 1).
In light of the construction of Article 5, sub-para.
9 of the Code of Civil Procedure detailed above, both a suit to seek an
injunction suspending an infringement by unfair competition under Article 3,
para. 1 of the Unfair Competition Prevention Law and a suit to seek declaration
of non-existence of the right to seek an injunction constitute a suit
prescribed in Article 5, sub-para. 9 of the Code of Civil Procedure.
For this reason, the Suit constitutes a suit
prescribed in the said sub-paragraph, and the decision of the second instance
contains an apparent violation of laws that has affected the decision. The
kokoku appellant's argument is well-grounded and the decision of the second
instance should inevitably be quashed. For further examination on the
appropriateness of the transfer of the proceedings for the Suit pursuant to
Article 17 of the Code of Civil Procedure, this case shall be remanded to the
court of the second instance.
Therefore, the decision was rendered in the form
of the main text by the unanimous consent of the Justices.
(This translation is
provisional and subject to revision.)