Kindschaftsrecht in Japan – Geschichte, Gegenwart und Zukunft
Abstract
This paper gives an overview of Japanese law on parent and child relations from a comparative perspective. It begins with a short historical outline of the development of Japanese law on parents and children, introducing the ‘family system’ (ie-seido) which became legally anchored in the Civil Code (CC) in its version of 1898. The ‘family’ (ie) as a ‘family unit’ consisted of several generations related by blood and carrying the same family name. The ‘head of the family’ (koshu) had absolute power in all family-related matters.
However, this patriarchal system was inconsistent with the Constitution of 1946 that stipulated human dignity as well as gender equality, among other rights. Therefore, in 1947, those parts of the CC concerned with family law and the law of succession were substantially revised. The fact that since then only few amendments have been made to the law now leads to problems, specifically in terms of the law concerning parent and child relations.
Even after the ‘family system’ had been abolished, its basic principles were upheld in the family register (koseki). The ‘family’ was replaced by the family unit with the same family name. For instance, foreigners are not added to the register, and it is impossible to select the last name of a non-Japanese spouse as a family name. This has been criticized as discrimination of foreigners. A further point of criticism is the fact that all matters of Japanese family members are still entered into the family register irrespective of protection of privacy. The register has been open to the public for a long time. Recent restrictions on access to the register still fall short of providing the necessary level of protection. It has therefore been a concern for many Japanese to keep their register ‘clean,’ leading to numerous incorrect statements – for example, regarding the ‘legitimacy’ of children that in reality had been adopted from their actual parents.
Another set of issues in the Japanese law of descent concerns the presumption of legitimacy and contesting legitimacy. If a child is conceived while the mother is married, the fatherhood of the husband is presumed even if a third person is the actual biological father. The recognition as ‘legitimate’ by the family register can only be revised by contesting legitimacy, a legal act to which only the husband of the mother as the legal father is entitled. If the legal father refrains from contesting legitimacy within the prescribed time limit, there is only a scant chance that his fatherhood can be disproved.
Likewise, reform deficits regarding the right of custody have long been observed. The Japanese law of parent and child relations is, in contrast to German law, linked to the legitimacy of the child. The right of custody is only jointly held by both parents as long as they are married, and is conferred to one of them in case of a divorce. A subsequent change of the person having custody of the child is possible, though it is realized by taking into account the basic principle of continuity. Therefore, there is the danger that a parent who has illegally abducted the child in violation of the right of custody of the other parent may be conferred the right of custody or may be confirmed in his or her right if the child has already got used to its new environment. This legal situation is especially problematic in cases of cross-border child abduction to Japan. Japan’s accession to the Hague Convention on Child Abduction on 1 April 2014 is intended to remedy this situation.
After decades of discrimination of illegitimate children in inheritance law, the Japanese legislator has recently adapted the relevant provisions. Following a groundbreaking decision of the Japanese Supreme Court in 2013, equal treatment of legitimate and illegitimate children under inheritance law has been realized by an amendment of Art. 900 CC. These various small-scale reforms in the Japanese law on parent and child relations give the author reasons to hope for further dynamic changes.
(The Editors)
