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OO~fliM~ffl~ 22 ~ (2020)

The Principle of ''revision au fond" and the Public Policy
Requirement in the Japanese System of Recognition ofForeign Judgments (summary)
Mafumi l<AMATANI
Associate Professor, Faculty of Law, Seinan Gakuin University

1. ( 1) This article analyses the impact of the principle of ''revision au fond" (Arc.24 (4)of Japanese Civil Execution Act) on the public policy requirement for the recognition of foreign judgments (Art.118 (3) of Japanese Code of Civil Procedure: hereinafter JCCP).
There is a certain consensus chat examining che public policy requirement does not violate the principle of ''revision au fond" unless it judges whether the foreign court decided
che case properly. However, there still is found the expression chat che requirement ofpublic policy would be the exception of the principle or che concern that it would violate
the principle, especially when the requirement is examined looking concretely into theirfacts.
(2) In Japan, the system of the enforcement of foreign judgments was first set out andchen followed by che recognition system. The requirements for the recognition were built
based on chose for the enforcement by receiring some modifications. The principle of''revision au fond" already existed in the enforcement system and was left in the recognitionsystem.
The public policy requirement derives from one of the requirements for che enforcement: the action to be enforced should be the one that is allowed to impose. To judge
chat requirement, it was not necessary to go into the details from che substantial aspects,
so there had been no discussions about the possible conflict between chat clause and theprinciple of ''revision au fond':
Judging from the drafting materials, che reason for modifying that clause into the public
policy clause is not apparent, and there is no argument about the possibility of conflictwich the principle of ''revision au fond". In contrast, Art.328 of che German Code of Civil
Procedure (Zivilproze8ordnung), which was later accepted by the Japanese enforcement
and recognition system, argued on this point in its first drafting stage.
2. Gebhard's first draft adopted two new requirements: non-recognition of the judgments ordering "Privatstrafe" or putting che German party at a disadvantage. Gebhard
considered these two requirements would cause a conflict with the principle of ''revision au

[Mafumi l<AMATANI]The Principle of "revision a" fond" and the Public Policy Requirement in
the Japanese System of Recognition of Foreign Judgments (summary)235

fond" since they need che examination of foreign judgments from the substantive aspect.
Therefore he deleted the principle from Gebhard's flrsc_drafc.
However, Gebhard incorporated the principle of "revision au fond" into his second draft
again, despite the public policy clause's additional introduction. The main reason forGebhard's decision was chat Prussia Draft, which was referred co in the drafting history of
the enforcement system of foreign judgments in Germany, also had the public policy
clause together with the principle. Considering the importance of the principle in Germany's enforcement system's historical development, Gebhard decided co keep it in che
recognition system in his second draft.
3. Viewed in this light, the principle of ''revision au fond" in Gebhard's draft can be divided into cwo groups regarding its meaning: on the one hand, it means that it strictly
prohibits the substantive examination of foreign judgments as we can see in the first draft.
On the other hand, it just expresses the general importance of the system under which
foreign judgments are recognized and enforced based on the foreign judgments themselveswith some exceptions without requiring any other hearing, as we can see in the seconddraft.
Considering the drafting history in Japan, the principle of ''revision au fond" should beunderstood in the second meaning; therefore, the examination of foreign judgments fromthe substantive aspect for judging the public policy requirement should not be regarded asa violation of the principle.