Submitted by basma on
JAPAN
Title:
Special Appeal against the Decision that Rejected the Appeal of the Judgment Dividing Property for Inheritance
Court:
Supreme Court of Japan
Date:
4 September 2013
CRC Provisions:
General reference to the CRC without specific articles cited
Other International Provisions:
International Covenant on Civil and Political Rights (ICCPR)
Domestic Provisions:
Civil Law, Articles 739.1, 772 and 900.4
Law No. 222 of 1947 (revising parts of the Civil Law) (“1947 Civil Law Amendment”)
Law. No. 51 of 1980
Civil Law Article 1004 as it was before the 1947 Civil Law Amendment
Nationality Law, Article 3.1 (prior to the revision of Law No. 88 of 2008)
Constitution, Articles 14.1, 24.1 and 24.2
2004 Ministry of Justice Regulation No. 76
Notification of the Civil Affairs Bureau Chief Minichi No. 3008, Ministry of Justice
Case Summary:
Background:
Japanese law provides both default statutory apportionment of estates if there is no will, and mandatory minimum apportionment that can override a will, based on family relationships including apportionment for children and spouses.
In this case, heirs to an estate who were born while the deceased was married (Plaintiffs) sued heirs who were born out of wedlock (Defendants) for distribution of inheritance, based on the proviso of Article 900.4 of the Civil Law that provides that children born out of wedlock were entitled to half of the statutory amount provided for children born while the parents were married (“Proviso”). The Proviso in this case would mean that the Plaintiffs would be entitled to a larger statutory minimum portion of the estate than the Defendants and a larger default apportionment, which may affect distribution of property whether or not there is a will.
At the original decision in the Tokyo family court, the court held that the Proviso does not violate Article 14.1 of the Constitution of Japan (equal treatment under the law). The court accordingly made a decision about the distribution of the property based on the application of the Proviso.
Issue and resolution:
Discrimination; right of children born out of wedlock to inherit equally with those born while their parents are married. The Supreme Court ruled that discriminating against children born out of wedlock as the Proviso did violates Article 14.1 of the Constitution of Japan, and therefore is not valid law. The Court remanded the case for further proceedings at the Tokyo High Court consistent with its decision and directed that this judgment be given precedential value for further decisions of this type.
Court reasoning:
Article 14.1 of the Constitution provides for equal treatment under the law. This provision should be interpreted to mean that discriminatory legal treatment is forbidden to the extent that it is not based on reasonable grounds based on the nature of the matter. The perception of whether different treatment for children born out of wedlock and children born while their parents are married is reasonable, both within Japan and in the foreign countries whose laws formed the basis for the Proviso at the time the Proviso was enacted (based on records of discussion in the National Diet at the time), has changed. Recent Supreme Court of Japan decisions and comments from committees under the ICCPR and CRC have indicated that the existing laws pose problems. Children cannot choose whether or not they are born out of wedlock, nor are they able to change that situation, so it is unacceptable for them to be discriminated on that basis. Children should be respected as individual persons and have their rights protected. Accordingly, at least as of July 2003, when the inheritance at issue commenced, the Proviso was in violation of Article 14.1 of the Constitution.
Excerpts citing CRC and other relevant human rights instruments:
as in full-text Japanese decision:
ウ 我が国は,昭和54年に「市民的及び政治的権利に関する国際規約」(昭和54年条約第7号)を,平成6年に「児童の権利に関する条約」(平成6年条約第2号)をそれぞれ批准した。これらの条約には,児童が出生によっていかなる差別も受けない旨の規定が設けられている。また,国際連合の関連組織として,前者の条約に基づき自由権規約委員会が,後者の条約に基づき児童の権利委員会が設置されており,これらの委員会は,上記各条約の履行状況等につき,締約国に対し,意見の表明,勧告等をすることができるものとされている。
我が国の嫡出でない子に関する上記各条約の履行状況等については,平成5年に自由権規約委員会が,包括的に嫡出でない子に関する差別的規定の削除を勧告し,その後,上記各委員会が,具体的に本件規定を含む国籍,戸籍及び相続における差別的規定を問題にして,懸念の表明,法改正の勧告等を繰り返してきた。最近でも,平成22年に,児童の権利委員会が,本件規定の存在を懸念する旨の見解を改めて示している。
CRIN English translation:
C. Japan ratified the International Covenant on Civil and Political Rights (ICCPR) in 1979 (Treaty No. 7 of 1979) and the Convention on the Rights of the Child (CRC) in 1994 (Treaty No. 2 of 1994). These treaties contain provisions to the effect that children shall not be subject to discrimination of any kind by reason of their birth. Further, the United Nations Human Rights Committee was established under the ICCPR and the Committee on the Rights of the Child was established under the CRC, each within the ambit of the United Nations. These committees are authorized to express opinions and make recommendations to the contracting States regarding the respective treaty’s implementation.
In 1993, the United Nations Human Rights Committee recommended that Japan comprehensively remove the discriminatory provisions relating to children born out of wedlock in connection with its evaluation of the status of Japan’s implementation of the ICCPR and CRC. Subsequently, both committees have repeatedly taken issue with and recommended specific changes to Japan’s laws of citizenship, family registration and inheritance, including the Proviso. Recently, in 2010, the Committee on the Rights of the Child reiterated its view expressing concern about the Proviso’s existence.
Follow Up:
On 5 December 2013, the National Diet (Japan’s legislature) enacted a revision to the Civil Code reflecting this Court decision by deleting the portion of the Proviso that related to children born out of wedlock.
Notes:
The Supreme Court of Japan previously ruled that the Proviso did not violate Article 14 of the Constitution: see CRIN case summary of the 1995 decision.
CRIN Comments:
CRIN believes this decision is consistent with the CRC. Article 2 requires States Parties to treat all children equally regardless of birth status or the status of their parents. The Court correctly found that the Proviso violates these children’s right to non-discrimination.
Citation:
Case ID 28212731
Supreme Court, Grand Bench Heisei 24 (Ku) No. 984 / Heisei 24 (Ku) No. 985
Court Cases (saibansho jiho) No. 1587 Page 1
The Financial and Business Law Precedents (kinyu shouji hanrei) No. 1425 Page 18
Financial Law Journal (kinyu homu jijo) No. 1978 Page 37
Case published on court website
Link to Full Judgment:
http://www.courts.go.jp/app/files/hanrei_jp/520/083520_hanrei.pdf
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.
