Der gesetzliche Erbteil nichtehelicher Kinder – Entscheidung des Obersten Gerichtshofs vom 4. September 2013

Abstract

On 4 September 2013 the Japanese Supreme Court declared Art. 900 No. 4 sentence 2 Civil Code (CC) unconstitutional. According to this provision the statutory portion of children born out of wedlock was to be only half of that of children born to married parents. This paper starts out with a short introduction to the Japanese law of succession and traces the history of Art. 900 No. 4 CC, various attempts at reform and the state of academic discussion and case law as of 2013. It then gives a detailed account of the Supreme Court decision of 2013 and the Court’s reasoning followed by an analysis of the framework applied in judging whether Art. 900 No. 4 CC is unconstitutional. The Court’s reasoning is examined as to whether it involves a change in the views on family and marriage applying different academic viewpoints. While the discrimination of children born out of wedlock as to the provisions on statutory portion has been eliminated based on the 2013 Supreme Court decision, some rules in the CC and the Family Register Law still make a distinction between children born to married and to unmarried parents. The paper finally gives an overview of those provisions, analyzes them against the background of the 2013 decision and gives an outlook on possible law reform.