The agenda for more efficient foreclosure system: lessons from the law and economics analysis of the abolition of the protection of short-term tenancy and minimal sale price

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  • 短期賃貸借保護・最低売却価額廃止の法と経済学的分析と 競売法制の課題
  • タンキ チンタイシャク ホゴ ・ サイテイ バイキャク カガク ハイシ ノ ホウ ト ケイザイガクテキ ブンセキ ト キョウバイ ホウセイ ノ カダイ

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Abstract

Many antisocial groups intervened into foreclosure sales for years. They earned a lot from it, which caused lots of damage on creditors but also on the financial order and auction market. The primary reason of their exploitation of foreclosure sales was the protection of the short-term tenancy. It was the original part of the civil code established in 1898 and lasted until recently. It allowed the tenant to stay on for maximum three years if the tenancy was less than three years old without perfection against the successful bidder. It was an important exception to the Japan's rule of perfection. The second reason is the rule of minimal sale price which forbade the sale of the property if the bidding price was lower than the evaluation of the court. Taking advantage of the two rules, the antisocial groups made big success with forcing the creditor to extinguish the mortgage and/or to sell the property at the low price to their members with introducing fake tenants to block the bidding procedure. （The successful bidding price of the condominium with short-term tenancy was 15.4％ lower than that of owner-occupied one before the amendment of the rule）. The authors proposed the abolition of both rules. Consequently the protection of the short-term tenancy was abolished in 2014, the minimal sale price was substantially abolished in 2015. They had a big effect on the foreclosure market as we see in the drastic reduction of the blocking of the foreclosure procedure and the rise in the successful bidding price. The next task to more rationalize the foreclosure market of Japan is to introduce non-judicial foreclosure which is widely used in the US.

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