Der Wandel der Familie – neue Überlegungen zum Modell der Familie

Abstract

The Japanese Civil Code does not give a definition of the word “family”, it does not mention it even once. Its provisions, however, presuppose a family consisting of a married couple and their (underage) children. This traditional family model has come to be severely criticized in recent years. The discussion in Japanese family law theory and practice focuses on three main issues, i.e. a possible reform of family law as provided for in the Civil Code – in particular regarding the possibility that the partners of a married couple have different surnames as well as regarding the abolition of discrimination against children born out of wedlock –, the question of gender roles within the family, and the legal protection awarded to non-married couples, including same-sex couples.

After outlining the present debate in Japan and its historical underpinnings, the paper presents various answers given by private and public law scholars to the underlying core questions such as how the concept of “family” should be defined, which role family law should play and how important marriage in this context is.

The first thesis presented adheres to the traditional notion that marriage is the basis of family relations. However, it suggests an abolition of authoritarian elements in family which do not serve the protection of weaker members of the family. Thus abolition of discrimination against children born out of wedlock is argued for. Non-married couples should not be awarded the same protection as married couples as this would infringe the right of self-determination.

The second thesis argues for an individualistic notion of the family focusing on the right of self-determination. The law should take on a neutral position as regards individual lifestyle choices and should interfere only where this is necessary for the protection of weaker members of the family.

The next two theses presented both propose that family relations should be based on contracts between the individual members of the family. One, however, argues in favor of limitations of contractual relations derived from the theory of justice. Therefore, the relation between parents and children, for example, should be exempt from contractual regulations. The other thesis puts more emphasis on freedom of contract and wants to leave everything to the agreement by the parties.

All four solutions would have far-reaching implications on the positioning of marriage and family within society. However, the current family register regime makes any reforms difficult. Further research on the issues involved is therefore necessary.