The Hiroshima Law Journal Volume 40 Issue 2
2016-10-28 発行


A study of partition by litigation
Sakai, Tomonori
There are cases where several persons jointly own certain property, called co-ownership. The termination of co-ownership requires a partition, which can be obtained either by mutual agreement among the co-owners or by a partition action. With respect to partition by litigation, Article 258, paragraph 2 of the Civil Law prescribes the so-called partition in kind and partition by sale as the means for partition by litigation. However, in actual cases of litigation, various types of partition other than those prescribed by the law are permitted. Legal theories discussing the tendency of judgments rendered in litigation so far have focused on questions such as whether partitions other than those prescribed by the law are permissible. Furthermore, discussions regarding the types of partition permitted in litigation have given rise to the following questions: (i) what types of partitions can the court elect and what types of cases should it deal with, and (ii) what are the mutual relationships among the types of partitions? Few discussions or theories have addressed these questions so far. Additionally, because litigation to partition property differs from other litigation, and is not bound by the intentions of the litigants, it is difficult for litigants to foresee the possible outcomes of the action. Therefore, this paper seeks to find possible answers to the aforementioned two questions by reviewing the context of Article 258, paragraph 2 of the Civil Law, as well as the discussions that occurred in its drafting.