Überblick über den Zwischenentwurf von 2016 zur Reform des Erbrechts in Japan

Abstract

In 2015 the Commission for the Civil Code (Succession Law) established within the Legislative Council of the Ministry of Justice took up work on a reform of succession law which had become necessary due to the change of family structures as well as the increase of life expectancy in Japan. As a first preliminary result the so-called Interim Draft for a Reform of the Civil Code (Succession Law) etc. was published on 21 June 2016. This article presents the various reform proposals of the Interim Draft as well as the responses to it. In particular four issues are dealt with in detail. First, the Interim Draft proposes an increase of the surviving spouse’s portion depending on the length of the marriage or the degree to which the deceased’s assets have increased during the marriage. These provisions have, however, met with heavy criticism and have, therefore, been withdrawn recently. The second issue concerns the right of the surviving spouse to continue using the flat or house in which he or she lived with the deceased and which belonged to the deceased, which is presently not provided for in the law. The Interim Draft proposes to grant the surviving spouse a short term right of use until ownership of the items belonging to the estate has been settled definitely between the heirs. Additionally, it is also possible to grant the surviving spouse a long-term right of use concerning the flat or house, e.g. by contract between all heirs or also by court decision. The third topic relates to the acknowledgement services (e.g. caring for the deceased in old aged) performed by non-heirs within the framework of succession law which is currently not possible. Here the Interim Draft grants non-heirs who have made a notable contribution to the increase of the assets of the deceased a claim for compensation against the heirs. However, by limiting either the persons entitled to claim or the services that give rise to a claim, the Interim Draft seeks to prevent inheritance conflicts from increasing as well as from becoming too complex. Finally, the rules on statutory portion are dealt with. While under current law claims for statutory portion give rise to rights in property, the Interim Drafts provides for monetary claims. Further, the rules on calculation of the statutory portion are changed thus clarifying several problems that exist under present law.