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Japanese Family Law Cases

JAPANESE FAMILY LAW CASES

 

Decision ruling that where the father with joint parental authority took away by physical force his two-year-old child who was in the custody of the mother living separately from him, the father's act of kidnapping the child cannot be justified.

Date of the decision: 2005.12.06

Case number: 2004 (A) No. 2199

Reporter: Keishu Vol. 59, No. 10

Title: Decision ruling that where the father with joint parental authority took away by physical force his two-year-old child who was in the custody of the mother living separately from him, the father's act of kidnapping the child cannot be justified

Case name: Case to be brought for kidnapping

Result: Decision of the Second Petty Bench, dismissed

Court of the Second Instance: Sendai High Court, Judgment of August 26, 2004

Summary of the decision:
Where the father took away by physical force his two-year-old child who was in the custody of the mother living separately from him, if there were no special circumstances in which it was actually necessary for the father to commit such an act and the act was violent and coercive, the father's act of kidnapping the child cannot be justified even though he has parental authority.
(There is a concurring opinion and a dissenting opinion.)

References: Articles 35 and 224 of the Penal Code, Articles 818 and 820 of the Civil Code

Article 35 of the Penal Code
(Justifiable acts)
An act committed in accordance with laws or ordinances or in the pursuit of lawful business shall not be punished.

Article 224 of the Penal Code
(Kidnapping or Abduction)
A person who kidnaps a minor by force, threat, fraud or enticement shall be sentenced to imprisonment with labor for not less than three months nor more than seven years.

Article 818 of the Civil Code
(Parental authority)
1. A child who has not yet attained majority shall be subject to the parental authority of its father and mother.
2. An adopted child shall be subject to the parental authority of its adoptive parents.
3. While father and mother are in matrimonial relation, they shall jointly exercise parental authority. However, if either the father or the mother is unable to exercise parental authority, the other parent shall exercise it.

Article 820 of the Civil Code
(Custody and education)
A person who exercises parental authority has the right and duty to have custody and educate the child.

Main text of the decision:

The jokoku appeal shall be dismissed.

Reasons:

The grounds for the jokoku appeal argued by the attorney YAMAYA Sumio, including the one alleging violation of the Constitution, are in effect nothing more than claims of violation of law or errors in fact-finding, and none of these arguments can be accepted as a ground for jokoku appeal under Article 405 of the Code of Criminal Procedure.
After considering the argument, however, we decide to make judgment ex officio regarding whether or not the defendant should be deemed to have committed the crime of kidnapping.
1. According to the judgment of the second instance and the judgment of the first instance, which was maintained by the former, as well as the records, the outline of this case are as follows.
(1) The defendant, in an attempt to take his son C (aged two at that time) away from his wife B who lived separately from the defendant and was rearing C, on November 22, 2002, at about 3:45 p.m., on the sidewalk on the south of the nursery school in Hachinohe City, Aomori Prefecture, clasped in his arms C who was on the way home accompanied by B's mother D, and then put C into his car parked nearby and drove away, thereby placing C under his control.
(2) The defendant took away C in the following manner.  When D, who came to the nursery school to pick up C on behalf of B, was preparing to put C into her car, the defendant, by taking advantage of a momentary chance, ran up to C, lifted C by inserting his arms under C's arms from behind, dashed at top speed to his car, which was parked unlocked with the engine running, got into the driver's seat while holding C, set C down on the front passenger's seat after locking the door, and drove off without caring about D who was standing outside the driver's seat of the defendant's car and trying to stop the defendant by holding the door of the driver's seat and hitting the car window with her hands.
At about 10:20 on that day, the defendant was discovered by the police officer when he was in his car with C on a deserted forest road in Hiranai-machi, Higashitsugaru-gun, Aomori Prefecture, and arrested with a warrant.
(3) The defendant committed the act mentioned above under the following circumstances.
The defendant married B because C was born between them, and the family lived in Tokyo. On September 15, 2001, because the defendant became violent during an argument, B went to her parents' home located in Hachinohe City, Aomori Prefecture and took C with her. Since then, B separated from the defendant and lived with her parents and C in her parents' home. The defendant, who could not put up with being not free even to see C, attempted to take C from B and take care of and rear C under his control, went from Tokyo where he lived to Hachinohe where C lived, and finally committed the act.
It should be noted here that the defendant had committed a similar act in August 2002; he caused his female acquaintance to pretend that she was a relative of C and take C out of the nursery school, and placed C under his control while staying in different hotels until he was arrested for kidnapping in Okinawa Prefecture nine days later.
(4) At the time of the incident, the conciliation proceedings for the adjustment of marital relationships and the divorce action initiated by B against the defendant were pending, but no legal dispositions had yet been made to restrict the defendant's parental authority or custody over C.

2. According to the facts mentioned above, the defendant, despite the fact that C lived peacefully in the family home of B who had joint parental authority, and was taken care of and reared by B and her parents, took C who was on the way home while accompanied by the grandmother D by using physical force in the manner mentioned above, and separated C from such secure environment and effectively placed C under his control. The defendant's act obviously constitutes the crime of kidnapping, and the fact that the defendant also had parental authority should be taken into consideration when determining whether his act may be allowed exceptionally (see 2002 (A) No. 805, judgment of the Second Petty Bench of the Supreme Court of March 18, 2003, Keishu Vol. 57, No. 3, 371).
In this case, the defendant attempted to take C from B who also had parental authority and disputed with him over divorce, thereby having C in his own hands. There were no special circumstances in which it was actually necessary for the defendant to commit such an act by reason of the custody and rearing of C, and therefore the defendant's act cannot be justified even though the defendant had parental authority. Furthermore, considering that the defendant's act was violent and coercive, C was only two years old and incapable of making a decision or choice as to his own living environment, and it is difficult to find the defendant to have had a concrete plan for taking care of and rearing C after the kidnapping though C was an infant child who needed full-time custody and rearing, the defendant's act cannot be regarded as being within the bounds of socially acceptable acts as a domestic matter. Consequently, there are no reasons to justify the defendant's act, and the judgment of the second instance that found the defendant to have committed the crime of kidnapping is justifiable.

Therefore, according to Article 414 and Article 386(1)(iii) of the Code of Criminal Procedure, the decision was rendered in the form of the main text by the unanimous consent of the Justices, except that there is a concurring opinion by Justice IMAI Isao and a dissenting opinion by Justice TAKII Shigeo.

The concurring opinion by Justice IMAI Isao is as follows.
In my opinion, criminal justice should refrain from intervening in domestic disputes to the greatest possible extent, and I am in agreement with the dissenting opinion in that a dispute over child custody between the husband and the wife living separately, as one in this case, should basically be solved by a family court. However, for this reason, in other words, because I attach great importance to the role of family courts, I cannot agree to the dissenting opinion that denied the illegality of the defendant's act.
Family courts are established as courts specializing in solving legal disputes on various domestic matters, and they are equipped with necessary human and material resources as well as various procedures such as the Law for Adjudgment of Domestic Relations. This means that the Japanese court system expects the use of family courts to solve legal disputes on domestic matters when mutual consultations between the parties concerned over such matters fail to reach mutually acceptable solutions.
However, in cases where either the husband or wife living separately takes their child from the other party's custody against the other party's will and places the child under his/her own control, as in this case, even if such an act derives from parental affection to the child, it cannot be denied that the perpetrator intended to resort to force to solve a legal dispute on domestic matters instead of referring it to the family court, disrespecting the role of the family court and making it difficult to solve the dispute at the family court. Recently, an increasing number of parents seek to obtain parental authority or custody over their child and request the surrender of the child through conciliation proceedings for divorce or marital relationships. If the defendant's act in this case were allowed under criminal law, it might intensify the tendency to resort to force in order to place the child under one's own control and take ccustody of the child, instead of trying to hold peaceful consultations between the parties concerned or referring disputes to family courts. Also from the perspective of ensuring the child's welfare, when either the father or mother resorts to force in order to take out the child who lives peacefully under the other party's parental authority and place the child under his/her control, such an act causes drastic changes to the child's living environment and it may have a considerably adverse impact on the child's physical and mental conditions.
I am in agreement with the dissenting opinion in that emphasis should be placed on the role of family courts in the process of solving legal disputes on domestic matters, and for nothing other than this reason, I disagree with the dissenting opinion and consider that in cases where either the husband or wife living separately takes their child from the other party's custody by force and effectively places the child under his/her control, such act constitutes the crime of kidnapping, and even if it derives from parental affection to the child, it cannot be justified unless there are special circumstances.

The dissenting opinion by Justice TAKII Shigeo is as follows.

I am in agreement with the view that when either the father or mother with parental authority takes out, by physical force, the child who is taken care of and reared by the other party with parental authority, and effectively places the child under his/her control, such an act should be regarded as constituting the crime of kidnapping. However, when the parents live separately because of marital discord, they frequently dispute over the custody of their child under joint parental authority and then, either party attempts to take the child away from the other party who is rearing the child at that time in order to effectively place the child under his/her control. Moreover, if such an act has its roots in parental affection for the child and it is committed by the means or in a manner that should be generally accepted in light of the spirit of the entire order of law, it should be regarded as being reasonable in light of what is socially acceptable and therefore lacking substantial illegality. The state authority must be especially careful about applying the criminal provision on the crime of kidnapping and abduction in order to intervene in cases where either father or mother with parental authority attempts to place their child under his/her control when he/she is currently not taking care of the child.
It may be understood that the legal interests protected by outlawing kidnapping and abduction include the liberty and safety of the kidnapped/abducted person and the custody right held by the person who takes care of the kidnapped/abducted person. However, I consider that the former is more essential than the latter, and that the latter cannot have significance independent from the former, except in only limited instances. In particular, where the act in question is committed by the father or mother with parental authority, as in this case, protection of the liberty and other legal interests of the child must be primarily emphasized when considering the substantial illegality of the act, unless the act goes beyond the bounds of the exercise of parental authority. This is because, in such a case, the perpetrator may be regarded as being allowed to exercise parental authority on an equal footing with the other party who actually takes care of the child, and it can be considered that the act may be regarded as just the perpetrator's exercise of his/her right that conflicts with the other party's right.
In this case, the defendant attempted to take C from his wife who also had parental authority and thereby to have C in his own hands. As pointed out by the majority opinion, there were no special circumstances in which it was actually necessary for the defendant to commit such an act. However, at the same time, it cannot be denied that the defendant's act derived from his parental affection to the child, and it cannot be said that the defendant should be particularly blamed for carrying out such an act.
It is true that the defendant kidnapped C, who was only two years old and incapable of making a decision or choice as to his own living environment, without any concrete plan for taking care of and rearing C after kidnapping. However, whether or not an act that occurred between the parent and the child is acceptable in light of socially-accepted thinking should be determined from the viewpoint of ensuring the child's welfare and from a relatively long-range perspective. In my opinion, criminal law should carefully refrain from intervening in such a case by focusing exclusively on how a particular act was committed on a particular day.
In disputes between the husband and the wife over their children, the surrender of children was often requested under the Habeas Corpus Law. The Supreme Court applied a narrow standard for determining the existence of "obvious illegality" of the restraint, which is required for ordering the surrender, and took a stance that this kind of dispute should be solved by family courts unless it is evidently detrimental to the child's welfare (among others, 1993 (O) No. 609, judgment of the Third Petty Bench of the Supreme Court of October 19, 1993, Minshu Vol. 47, No. 8, 5099; 1994 (O) No. 65, judgment of the Third Petty Bench of the Supreme Court of April 26, 1994, Minshu Vol. 48, No. 3, 992)
In 1993 (O) No. 609, judgment of the Third Petty Bench of the Supreme Court of October 19, 1993, Justice KABE Tsuneo presented a concurring opinion and suggested that family court's provisional preservative measures should be actively utilized in disputes over child custody, stating: "A dispute over custody of an infant child between the child's parents who live separately is basically subject to the exclusive jurisdiction of family courts, and the procedure for adjudgment of domestic relations as well as the human and material resources of family courts exist particularly for the purpose of investigating and adjudging such dispute." I agree completely with this opinion, and consider that disputes over child custody must be handled by placing top priority on the child's welfare and solved exclusively under the jurisdiction of family courts, and therefore other authorities, and in particular the criminal justice authorities, should refrain from intervening in such disputes to the greatest possible extent.
From this standpoint, the defendant should have referred the dispute over child custody to a family court. Where either the father or mother seeks to exercise his/her parental power for the child who lives peacefully under the other party's parental authority, he/she should first try family court procedures, and must not resort to force in order to have the child in his/her own hands.
However, the defendant's act of attempting to take away the child without going through necessary procedures should not be immediately regarded as an illegal act in which criminal law should intervene.
Even if such an act appears to be somewhat excessive at a particular point of time, its adverse impact on the child is likely to be eliminated through procedures that may follow, as long as the act can be regarded as the exercise of parental authority. Therefore, the appropriateness of such an act should be determined by the family court from the perspective of ensuring the child's welfare, and criminal justice must refrain from intervening in determination to the greatest possible extent.
If either the father or mother with parental authority, without going through family court procedures, takes away a child who lives under the other party's parental authority, such an act can be deemed to be infringing the other party's custody right. However, unless such an act might make it impossible or difficult to solve the dispute at the family court or result in a wrong solution, it is inappropriate for criminal law to overestimate the other party's custody right, which has never been established by public procedures, and immediately intervene in the dispute by reason of the infringement of the custody right, without taking the child's welfare into consideration.
If criminal law intervenes in the dispute immediately upon accusation by the party with parental authority who is deprived of the child against the other party in an emotional confrontation, as seen in this case, the party with parental authority who attempts to take away the child would be arrested. As a result, the other party with parental authority might expect to eliminate the opposing party by taking advantage of the criminal case, without trying procedures (including procedure for preventive measures) at the family court that originally has exclusive jurisdiction over such a dispute, and it cannot be denied that a tendency to choose this way to solve disputes might be generated. This would lead to the situation in which the child would be deprived of the opportunity to choose appropriate custody based on the family court's technical and scientific knowledge, which is never contemplated under the existing justice system. In addition to this, the fact that the child's father or mother is involved in the criminal case would also be, in the long term, detrimental to the child's welfare. (Although incidents by a parent of taking away a child often occurred, it rarely led to criminal cases, partly because it is an offense indictable upon an accusation, and most parents with parental authority who were deprived of a child seem to have refrained from going as far as to bring an accusation, and also largely because the criminal enforcement authorities was reluctant to intervene for the reasons mentioned above. If such a common act of taking away the child were judged to be punishable, the role of effectively solving a dispute over child custody would be transferred from family court procedures that are carried out from the perspective of ensuring the child's welfare to criminal justice procedures that are less likely to allow such consideration. This would cause a serious problem.)
In this case, although the defendant's act of taking away the child inevitably appears to be somewhat excessive, the act did not involve any particularly violent treatment of the child or prevent the family court from bringing about a final solution to the dispute. Therefore, in the relationship with his child, the defendant's act of resorting to force for placing the child in his custody may not be condemned from the viewpoint of socially-accepted thinking.
Based on this reasoning, I consider that the defendant's act of taking away his child should be deemed to be reasonable from the viewpoint of socially-accepted thinking and therefore its illegality should be denied. (With respect to the precedent decision of the Second Petty Bench of the Supreme Court, which is cited by the majority opinion of this decision, I agreed with the court opinion that where either the father or mother with parental authority takes away by force the child who is taken care of by the other party with parental authority, such an act should not be justified. This is because in that case, the perpetrator intended to take the child to a foreign country, which would make it difficult to solve the dispute at the family court, and the manner in which the perpetrator took the child, i.e. taking the child from the hospital where he/she was staying by pulling him/her by the legs and hanging him/her upside down, was dangerous to the child. Thus, the precedent case is completely different from this case.)
For the reasons mentioned above, the judgment of the second instance ruling that the defendant's act should not be justified, has wrongly interpreted laws and contains an apparent violation of laws that has affected the judgment. Therefore, it would amount to a considerable injustice if it were not quashed.

Presiding Judge, Justice TAKII Shigeo
Justice TSUNO Osamu
Justice IMAI Isao
Justice NAKAGAWA Ryoji
Justice FURUTA Yuki


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Judgment upon the case concerning the legality of the part "(except for a child recognised by the father)" of Article 1-2, para.3 of the Enforcement Order of the Law on the Child Maintenance Benefit (before the amendment by the cabinet order No.224 of 1998)

Date of the judgment: 2002.1.31
 
Case number: 1996(Gyo-Tsu)No.42

Reporter: Minshu Vol.56, No.1, at 246

Title: Judgment upon the case concerning the legality of the part "(except for a child recognised by the father)" of Article 1-2, para.3 of the Enforcement Order of the Law on the Child Maintenance Benefit (before the amendment by the cabinet order No.224 of 1998)

Case name: A claim for the revocation of the decision on the loss of eligibility for the child maintenance benefit

Result: Judgment of the First Petty Bench, quashed
 
Court of the Second Instance: Osaka High Court, Judgment of November 21, 1995

Summary of the judgment: 
The part in brackets of Article 1-2, para.3 of the Enforcement Order of the Law on the Child Maintenance Benefit (before the amendment by the cabinet order No.224 of 1998) which provides for the children who are eligible for a child maintenance benefit upon delegation by Article 4, para.1, subpara.5 of the Law on Child Maintenance Benefit which excludes "a child recognised by the father" from "a child conceived by the mother without marriage (including instances where the marriage is not registered, but the parties are in the state of de facto marriage) " is against the law for exceeding the scope of delegation and as such, is null and void. 

References:
Article 4, para.1 of the Law on the Child Maintenance Benefit

Article 4
Governors of the prefecture, governors of the Tokyo Metropolitan Area, Osaka, or Hokkaido, mayors (including the head of the designated districts), and village and town mayors who manages the social welfare offices (offices regarding social welfare as provided in the Social Welfare Law (Law No.45, 1951; the same in the following) shall pay child maintenance benefit (hereinafter, 'the Benefit') to the mother or the custodian, if the mother of a child who falls within one of the following categories takes custody of the child, or in cases where there is no mother or the mother does not take the child in custody and a person other than the mother takes care of the child (lives together with the child, takes custody of the child, and sustains the child; hereinafter, the same).

(1) a child whose parents' marriage has been dissolved;
(2) a child whose father has died;
(3) a child whose father is handicapped above the level provided by the cabinet order;
(4) a child whose father is not known whether he is dead or alive;
(5) other children who are in a situation similar to the above and determined by the cabinet order.

Enforcement Order of the Law on the Child Maintenance Benefit (before the amendment by the Cabinet Order No.224 of 1998)

Article 1-2, subpara.3

Children as provided Article 4, para.1, subpara.5 of the Law on Child Maintenance Benefit are those who fall within one of the following categories:

(3) a child who was conceived by the mother outside marriage (including instances where the marriage is not registered, but the parties are in reality in a situation similar to that of marriage)(except children recognized by the father).  


Main text of the judgment:
The judgment of the original instance court shall be quashed.
The koso appeal of the jokoku appellee shall be dismissed.
The cost of the koso and jokoku appeal shall be borne by the jokoku appellee.

Reasons:
On the grounds of the jokoku appeal by the representatives for the jokoku appeal, MISUMI Shinobu, TADA Minoru, YOKOTA Yasunori and FUKUI Hideyuki:

1. Article 4, para.1 of the Law on the Benefit for Child Maintenance (hereinafter, "the Law") provides, as a prerequisite for the benefit of child maintenance benefit, that when a child who falls under one of the following subparagraphs is in the custody of the mother, or is under the custody of a person other than the mother, the child maintenance benefit is to be paid to the mother or this person. The children who are eligible for the benefit are, "a child whose parents' marriage was dissolved" (para.1), "a child whose father has died"(Para.2), "a child whose father is handicapped at the level as provided by the cabinet order"(para.3), "a child whose father is not known whether he is dead or alive"(para.4), and "children who are in circumstances which are tantamount to the situations as provided in the preceding paragraphs and which are determined by the cabinet order"(para.5). (a "marriage" in this Law including this provision covers parents who are not registered but are in a situation similar to de facto marriage (Art.3, para.3. The same applies in the present judgment). Article 1-2 of the Enforcement Order of the Law on the Child Maintenance Benefit (before the amendment by the cabinet order No.224 of 1998. hereinafter, "the Enforcement Order") lists " a child whose father has abandoned him continuously for one year or more (including fathers who were not registered as married at the time the mother conceived the child, but who were in a state of de facto marriage with her)"(para.1), "a child whose father is in prison for more than a year by law without interruption"(para.2), "a child conceived by the mother without being married (including instances where the marriage is not registered, but the parties are in the state of de facto marriage)" and "children who do not fall under the preceding paragraph in a clear-cut manner"(para.4) as children determined by the cabinet order referred to in Article 4, para.1, subpara.5 of the Law.   
2. According to the facts lawfully established by the original instance court, the jokoku appellant conceived a child outside marriage, gave birth to it, took custody of it, and was paid child maintenance benefit as a mother who has taken a child as provided by the Enforcement Order Article 1-2, subpara.3. The jokoku appellee made a decision to disqualify the child as eligible for child maintenance benefit (hereinafter, "the Decision") on October 27, 1993, on the ground that the child was recognised by the father on May 12, of the same year. 
3. Under the above circumstances, the original instance court ruled as follows and revoked the judgment of the first instance court which acknowledged the claim of the jokoku appellant asking for the revocation of the Decision.
(1) Article 1-2, para.3 of the Enforcement Order as a whole, including the part in brackets, "(except for a child recognised by the father)", is a provision which determines the scope of children in the interest of whom the child maintenance benefit can be paid as a positive prerequisite. The part in brackets cannot be regarded as a separate negative condition for the benefit of the benefit. Extracting the part in brackets from this paragraph, finding it null and void, and revoking the Decision is against the spirit of the paragraph which provides that children conceived through extra-marital relations (hereinafter, "illegitimately conceived children") who are not recognised by the father should generally be the object of a benefit of child maintenance benefit. This would be tantamount to assuming that there is a law which includes illegitimately conceived children not recognised by the father to be included as an object of the payment of benefits and to revoking the Decision on the basis of this law. This would be an infringement of the power of the legislature or the Cabinet which enacted the order and is therefore impermissible.
(2) Furthermore, the legislation of the part in brackets is not against the Constitution and is within the scope of delegation. The Law delegates to the discretion of those who enact cabinet orders the designation of those children who qualify for the child benefit for the reason of being in a similar situation to the children as provided by subparas.1 to 4 of Article 4, para.1 of the Law. Subparas 2 and 4 of Article 4, para.1 of the Law provide for a category of children who do not have a father and therefore cannot be sustained by the father, and Article 1-2, para.3 of the Enforcement Order was enacted in line with this provision. Determining the scope of children who are eligible for child benefit by resorting to the criterion of the absence of the father is in itself reasonable. As a corollary, if the fact which corresponds to the absence of the father ceases to exist, it is prima facie reasonable to determine that, as a rule, there ceases to be a need to make them eligible for the benefit. The part in brackets basically provides for situations which coincide with the criterion of the absence of the father, and the enacting of this part is within the scope of discretion of the legislature of the enactor of the cabinet order, and is neither unconstitutional nor unlawful.
4. However, the above ruling of the original instance court cannot be upheld. The reasons are as follows.
(1) Article 1-2, subpara.3 can be understood to have identified children conceived outside marriage as being eligible for child maintenance benefit and to have then expressed a clear legislative choice to exclude children who have been recognised by the father from this category. If this decision to exclude children who have been recognised by the father is found to be unconstitutional or unlawful, even if the provision as an inseparable whole is not found to be void, but merely the part concerning the exclusion is found to be void, it cannot be regarded as tantamount to the court legislating on the part which has not previously been the object of legislation. Therefore, it cannot be said that finding the part in brackets to be void and revoking the Decision are impermissible, on the ground that the court is performing a legislative function.
(2) Then, whether or not the fact that the enactment of the part in brackets by the Cabinet in the Enforcement Order Article 1-2, subpara.3 is in excess of the scope of the delegation by Law shall be examined.
      The Law provides for the benefit of child maintenance benefit in order to ensure the stability of a family in which a child is brought up without the father sharing the household account and to facilitate the children's independence and thus aims to promote the welfare of the children (Art.1 of the Law). The Law does not make all the children brought up without a father sharing the household account eligible for a child maintenance benefit, but in subparas. 1 to 4 of Article 4, para.1, it establishes categories of children eligible for the benefit and in subpara.5, makes "other children who are in a similar state as those as provided in the preceding paragraphs and are determined as such in the cabinet order" eligible for the benefit. The scope of delegation resulting from this provision shall be determined by taking into consideration not only the wording, but also the purpose and goal of the Law, the reason why this provision provides for a certain category of children to be eligible for a child maintenance benefit and the balance between those who are eligible and those who are not eligible.
    The enactment of the Law was triggered by the argument that since, for those households without a father due to his death, a mother and child welfare pension is paid under the Law on National Pensions, as a matter of fairness, those households without a father for other reasons should benefit from a similar measure. Categories of children as provided by the subparagraphs of Article 4, para.1 of the Law, are not limited to children who do not have a father sharing the household account for reasons other than the father's death, but, in the light of the goals and purposes as provided by article 1 of the Law, it also provides for other categories of children who cannot be realistically expected to be sustained by the father as the breadwinner, i.e. children in a situation where there is no father in a marital relationship with the mother, or in a similar situation from the viewpoint of sustaining the child. Children conceived and born outside marriage are children without the father as a breadwinner, and fall within the category of children who cannot be expected to be sustained by the father. Article 1-2, subpara.3 in the main part, excluding the part in brackets, categorises illegitimately conceived children as children similar to those provided in Article 4, para.1, subparas.1 to 4, and is in accordance with the purpose of the delegation by the Law. On the other hand, Article 1-2, subpara.3 of the Enforcement Order includes the part in brackets which excludes children recognised by the father from those eligible for a child maintenance benefit. Admittedly, the recognition of an illegitimately conceived child creates a state where there is a statutory father, but it is evident that Article 4, para.1, subparas.1-4 of the Law does not intend to determine children who are eligible for the child maintenance benefit solely by reference to the existence or non-existence of a statutory father, nor by recognition, is a marital relation automatically formed with the mother after which the father becomes a breadwinner. Neither is there any guarantee that once the father recognises the child, a real support by him can be expected. Therefore, even if an illegitimately conceived child were recognised by the father, a situation similar to that as provided by Article 4, para.1, subparas.1-4 of the Law might continue to exist. Therefore, the provision of Article 1-2, subpara.3 of the Enforcement Order which, in the main part, provides that children in a similar situation as those under Article 4, para.1, subparas.1-4 of the Law are eligible for the child maintenance benefit but which, by virtue of the part in brackets, excludes illegitimately conceived children who have been recognised by the father, fails to balance between these children in the light of the goals and purposes of the Law, and is against the meaning of the delegation by the Law.
(3) The judgment of the original instance court ruled that "children whose father has died" as provided by Article 4, para.1, subpara.2 of the Law, and "children whose fathers are not know whether they are dead or alive" as provided by subpara.4 of the same provision, cover categories of children who cannot be sustained by the father due to the absence of the father, and that Article 1-2, subpara.3 of the Enforcement Order provides for a situation which is in line with the provision of the Law including the part in brackets, and that the loss of eligibility for the benefit after recognition by the father is the same as in cases where those children eligible for the benefit under Article 4, para.1, subparas.1-4 of the Law lose the eligibility when an adopted father emerges or it is confirmed that the father is alive and the father ceases to be absent, regardless of whether he actually sustains the child or not. However, the death or the lack of information regarding the life or death of the father as provided in these subparagraphs categorise cases in which there is an absence of a breadwinning father, rather than a mere absence of a statutory father, and therefore the fact that the loss of eligibility for child maintenance benefit in cases where an adopted father emerges or it is confirmed that the father is alive after which there is no longer an absence of a breadwinning father and the loss of eligibility solely on the ground of the recognition by the father cannot be regarded as identical.
       This understanding coincides with the fact that a child born between an unmarried couple who had become eligible for the benefit under Article 4, para.1, subpara.1 of the Law after the dissolution of defacto marriage, does not lose the eligibility merely as a result of the recognition by the father.
5. As above, [Summary] the exclusion from the category of children eligible for child maintenance benefit of an illegitimately conceived child who was recognised by the father by the part in brackets of Article 1-2, para.3 of the Enforcement Order is against the goal of the delegation of the law, is against the law for exceeding the scope of delegation, and is void. Without ruling on the remaining grounds of the jokoku appeal, the Decision which was made on the basis of the part in brackets is unlawful.        
Therefore, the above ruling of the original instance court is against the law in its error of interpretation and application of the law, and it is obvious that this error affects the judgment. The argument of the jokoku appellant is with grounds, the judgment of the original instance court cannot but be quashed. As explained above, the judgment of the first instance court which acknowledged the claim of the jokoku appellant can be withheld in conclusion, and therefore, the koso appeal of the jokoku appellee shall be dismissed.
    Thus, the justices, except for the dissenting opinion of Justice MACHIDA Akira, unanimously rule as the main text of the judgment.

The dissenting opinion of Justice MACHIDA Akira is as follows.

I cannot concur with the majority opinion which found that the part in brackets is unlawful for exceeding the scope of delegation and therefore is void. The reasons are as follows.
    The majority opinion is of the view that Article 4, para.1, provides for categories of children to be eligible for the benefit who cannot expect actual support from a breadwinning father, that illegitimately conceived children are those without a breadwinning father, and that even as the result of recognition by the father, the father does not become a breadwinner of the household, and therefore, the part in brackets is against the law for being against the meaning of the delegation, and is void.
    However, as the majority opinion points out, the child maintenance benefit was introduced primarily because, for those households without a father due to his death, a mother and child welfare pension is paid under the Law on National Pensions, and as a matter of fairness, those households without a father for other reasons should benefit from a similar measure, because the deterioration of the economic situation of the child does not differ in each circumstance. Certain categories of children who are in a similar situation such as (i) children whose fathers have died, (ii) children with a father who is handicapped beyond a certain level (there are cases where the father becomes handicapped by illness or an accident), and (iii) children whose father is not know whether he is dead or alive are explicitly identified as those eligible for the benefit, and it is provided that those who are in a similar situation and are determined by the cabinet order are also eligible for the benefit. It is clear from the wording that the Law did not intend to make all children without a breadwinning father eligible for the benefit. This can also be substantiated by the fact that when the Law was adopted, the Social and Labour Committee of the Lower House requested that all children who do not benefit from a household account shared with the father should be made eligible for the benefit (it goes without saying that an attached resolution as such does not have any legal effect). It is evident in the light of the judgment of the Supreme Court that social security legislation which does not provide for the benefit of benefits to every child whose father does not share the household account, but only to those in special circumstances whose economic situation has deteriorated after e.g. the divorce of their parents, is not against the Constitution (Supreme Court, 1976 (Gyo-Tsu) No.30, Judgment of the Supreme Court, July 7, 1982, Minshu Vol.36, No.7, p.1235). If, as held in the majority opinion, this provision is understood to list categories of children who do not have a breadwinning father and makes them eligible for a benefit, it seems to be difficult to explain why illegitimately conceived children are not listed in Article 4, para.1.
    As above, the Cabinet is not under any obligation to make illegitimately conceived children eligible for the benefit when enacting a cabinet order delegated by Article 4, para.1, subpara.5. The reason why this provision has provided in a comprehensive and an abstract manner that those children who are in a similar situation as those provided in subparas. 1 to 4 and are determined by a cabinet order shall be eligible for the benefit is because the Law has left the determination of who is in a similar situation as provided in subparas. 1 to 4 in the cabinet order to the discretion of the Cabinet which enacts the cabinet order. If the Cabinet treats children recognised by the father and those not so recognised in a different manner when enacting the cabinet order which determines the children eligible for the benefit, if there is a reasonable ground for different treatment, it is within the scope of its discretion. Although they are all conceived children, those who are recognised by the father are entitled to a claim for support, while those who are not do not have such rights. Therefore, there is a reasonable ground in making those who have not been recognised by the father eligible for the benefit of child maintenance benefits which is part of the system of social welfare, and the part in brackets of Article 1-2, subpara.3 of the Enforcement Order is not against the meaning of the delegation by law. Even if the law is interpreted in this way, if a child who was recognised by the father is abandoned for a period of one year or more without interruption, and in other cases which fall under Article 4, para.1, subparas. 2 to 4, or Article 1-2, para.1 or 2, the child is eligible for the benefit on the same ground as children born to married parents, and therefore, these children do not suffer from any particular disadvantage. The majority opinion argues that it is imbalanced that while a child born to an unmarried couple who had become eligible for the benefit after the dissolution of the de facto marriage does not lose the eligibility merely by recognition by the father, illegitimately conceived children lose the eligibility by recognition. However, the law is applied as if there is a father in relation to a child born to parents in de facto marriage, regardless of recognition by the father. This does not mean that a father newly emerges by recognition, whereas in the case of illegitimately conceived children, the father emerges only by recognition. Therefore, even if the effect of the recognition differs in relation to the eligibility for the benefit, it does not mean that this arrangement is inconsistent.
     As above, child maintenance benefit is a benefit which is part of the social security system paid to a household of mother and a child whose economic situation has deteriorated due to divorce or other reasons, and the system should be administered in line with this purpose. Even if the child loses its eligibility for the benefit, if there is another ground of eligibility, it is not permissible to render a decision on the loss of eligibility. In cases such as the present case where, as the result of recognition by the father, the eligibility based upon article 1-2, subpara.3 was lost, there is still a possibility that the child may be eligible on the ground of subpara.1, and therefore, when determining the appropriateness of the decision to deny the administration of this system, it is necessary to inquire and examine whether there were grounds which fall under this subparagraph.
    Therefore, in order to further examine these points, the judgment of the original instance court shall be quashed and the case shall be remanded to the original instance court.

Presiding Judge, Justice IJIMA Kazutomo
                Justice FUJII Masao
                Justice MACHIDA Akira
                Justice FUKAZAWA Takehisa

(*Translated by Sir Ernest Satow Chair of Japanese Law, University of London)
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Judgment concerning a false notification of the birth of a legitimate child, etc. and the validity of acknowledgement of paternity

 
Date of the judgment: 1978.2.24

Case number: 1976 (O) No.361

Reporter: Minshu Vol. 32, No. 1, at 110

Title: Judgment concerning a false notification of the birth of a legitimate child, etc. and the validity of acknowledgement of paternity

Case name: Case to collect a loan
Result: Judgment of the Second Petty  Bench, dismissed
Second instance court: Tokyo High Court

Summary of the judgment:
In the case where the father registered the birth of an illegitimate child as a legitimate child or as an illegitimate child, either register is valid as notification of paternity once the said register is accepted by an official in charge of family registration.

References:

The Civil Code
Article 781
The acknowledgement of a child is effected by giving notification thereof in accordance with the provisions of the Family Registration Law.
2. Such acknowledgment may also be effected by means of will.

The Family Registration Law
Article 52
The father or the mother shall register the birth of a legitimate child, and if the parents divorce before the birth of a child, the mother is required to register the birth of a child.
2. The birth of an illegitimate child shall be registered by the mother.
3. If the person required to register the birth of a child in accordance with the provisions of the two preceding paragraphs is not able to register the birth thereof, the following party shall register the birth thereof in the following order :
(1) A person who lives with the child, or
(2) A doctor, a midwife or others present at the delivery of the child

Main text of the judgment:

This KOKOKU-appeal is hereby dismissed.
The litigation cost incurred in this appeal shall be borne by the Appellant.

Reasons:

Concerning the first reason for appeal presented by Counsel Hiroo Higasa and Counsel Setsuo Mizoguchi
We affirm as justified the finding and judgment by the original court that in the recognition of the non-litigant late Rin Sui Shun being of the Republic of China nationality, ascertaining that the law of his own country in terms of the law governing the application of laws should be the law of the Republic of China, applied the law of the Republic of China to the said person's heirship according to Article 25 of the law governing the application of laws and to the paternity acknowledged by the said person according to Article 18 of the said law. We conclude that nothing of the original judgment involves the alleged violation of law, therefore the Appellant's argument cannot be accepted.

Concerning the second reason for appeal
In the case where the father registered the birth of an illegitimate child as a legitimate child or as an illegitimate child, it is appropriate to construe that either register is valid as notification of paternity once each register is accepted by an official in charge of family registration. All in all, considering that either of the said registers is not intended as acknowledgement of paternity; that there is misrepresentation contrary to facts for a description of the mother in the said register entering an illegitimate child as a legitimate one, and it is not envisaged by law for the father to register the birth of an illegitimate child; that  it seems that the father registered the birth thereof in his capacity as a person living with the child at the time he happened to get it registered (see Article 52, para. 2 and 3); that whereas notification of paternity acknowledged is to indicate his intention to acknowledge a child as his own and declare to that effect to an official in charge of family registration, each of the said registers includes explicit intention to acknowledge a child as his own and declare to that effect; and that each of the said register was accepted by an official in charge of family registration, we are of the opinion that it is reasonable to affirm the validity of each register as notification of acknowledgement of paternity.
We uphold the finding and judgment by the original court with regard to other points made by the Appellant's side and we don't find the alleged violation of law in its process.

Concerning the third reason for appeal
We affirm the finding and judgment by the original court with regard to the third reason presented by the Appellant's side. The argument is developed from an independent standpoint of the Appellant's side to rebut the original judgment, which cannot be accepted.

Concerning the fourth reasons for appeal
We affirm as justified the finding and judgment by the original court to infer that there was mutual consent between the appellees for each of them to claim the said loan amounting to 2,000,000 yen and delinque

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