How I, as a Lawyer, Would Get Back Money I Lent - 18 (Requirements to Start Property Disclosure)

[ Introduction ]

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In this blog, I, as a lawyer, share what I would do if I were to become a "party" to a dispute or trouble.

I myself have never been a party to a major dispute or trouble in my life, so perhaps I am not in a position to speak for the suffering or anxiety of those who are facing such situations at this very moment.

However, I believe that if I can share how I would handle being a party to a dispute from a lawyer's perspective, it might be useful to all of you reading this.

Since this is strictly "what I would do," it may not necessarily apply to everyone reading, but I would be very happy if you could use my methods as a hint and apply them in your own way.

Unfortunately, I cannot know the faces or names of those reading this, but thank you for visiting. It is truly encouraging.

[ Today's Topic: Getting Back Money You Lent ]

Today, I will continue to talk about "getting back money you lent."

Yesterday, I talked about investigating a hostess's bank account using a procedure through the Bar Association, commonly known as a "Article 23 Inquiry."

Even though the Civil Execution Act provides a procedure called "Property Disclosure" that uses the court to investigate a hostess's assets, I do not use property disclosure from the start, but rather investigate the bank account through the Bar Association.

Why is that?

As I explained a little at the end of yesterday's post, "Property Disclosure" cannot be started at any time; there are requirements to begin it.

1. Compulsory execution was carried out, but it was not enough to repay the full amount

or

2. Compulsory execution against known assets is not enough to repay the full amount

Only when one of these is met can you begin the "Property Disclosure" procedure, which is a court-based asset investigation.

Therefore, in order to use property disclosure, I must ensure that one of the requirements above is met.

To meet the first requirement, I must actually carry out compulsory execution.

I have already written that in order to carry out compulsory execution, you must identify the target assets.

A petition saying, 'I don't care what it is, just enforce against the cabaret hostess's property!' is not permitted. A 'compulsory execution' petition is one where you investigate and identify the property yourself and then request enforcement against that specific property.

It feels a bit harsh to be told to investigate it yourself first, especially when the very reason you want to use property disclosure is that you don't know what the property is.

It is certainly true that 'the reason you want to use property disclosure is that you don't know what the property is,' but the court also wants to verify whether you truly 'do not know what the property is.'

The 'property disclosure' procedure is one where the court uses state power to infringe upon highly sensitive privacy regarding the 'location and amount of property.'

To justify this, you first need a document where the court has officially ordered payment, such as a 'judgment' or a 'settlement agreement,' and in addition to that, there must be a situation where it is 'truly unknown where the property is.'

Even though the court has ordered payment, the other party does not repay voluntarily, and the location of their property is unknown.

That is precisely why it is justified to investigate the property and intervene in their privacy. That is how the system is structured.

This 'property disclosure' is an infringement of privacy. And once property disclosure starts, if you do not reveal the location of the property (if you refuse to explain), you will face criminal penalties.

In other words, from one perspective, it is an extremely overbearing system that demands an infringement of privacy in exchange for criminal penalties.

This overbearing nature is only justified by the fact that 'it is truly unknown where the property is,' so the court must properly confirm whether it is 'truly unknown where the property is.'

Therefore, the first requirement is that (1) you have attempted compulsory execution but were unable to recover the full amount.

You have already attempted compulsory execution, but it did not reach full repayment. Then, the court can judge that it is acceptable to proceed with property disclosure.

Now, for this first requirement, it is not enough to say, 'I attempted compulsory execution, but there was no target property (= the compulsory execution was a miss).'

For example, if you file for compulsory execution by guessing a branch office in the petition without even conducting an investigation via a Article 23 inquiry, and it turns out there is no account at that branch and no target property exists, then requirement (1) is not met.

If there is even one yen in an account under the cabaret hostess's name, then it becomes a case of having received one yen in repayment but still falling short, so the requirement (1) is met.

Next is (2), which is also easy to understand if read in the context of 'justifying the overbearing nature' mentioned earlier.

This is the case where I have already investigated and identified the cabaret hostess's property, but even based on those investigation results, it is nowhere near enough to cover the full repayment.

This includes cases where I investigated bank accounts via an Article 23 inquiry but found no accounts at all, or even if I found them, there was insufficient balance, or I identified an address but it was not a home they owned, or they changed jobs and I don't know where they are currently working.

When these circumstances exist, the requirement (2) is met.

However, I personally think that in most cases, the first requirement is what ends up being met.

Since you have identified their address, they likely have a bank account at one of the major banks in that neighborhood (in this day and age, it has become possible to live without a bank account by using balances like PayPay or LINE Pay, but I doubt how many people truly have no bank accounts at all), and if not at a major bank, you can usually find a deposit account by checking the main local regional bank, agricultural cooperative (JA), or labor bank in that area.

Of course, it costs 5,000 yen plus consumption tax just to investigate a deposit account at one financial institution, but it is faster than property disclosure.

Investigate, find the deposit accounts, and file for compulsory execution on the accounts you have identified.

I think it is a common pattern to proceed to property disclosure if that is not enough.

I will leave it here for today, and tomorrow I will talk about how the property disclosure procedure actually proceeds.

See you tomorrow! ...↓

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