FAMILY COURTS IN JAPAN
Family courts and their branch offices are established at the same places where district courts and their branch offices are located. In addition, local offices of family courts are located in areas as necessary (77 locations in Japan).
The family court, established on January 1, 1949, is a specialized court for family affairs and juvenile delinquency cases. It has, in the first place, jurisdiction over all disputes and conflicts among family members, as well as all related domestic affairs of legal significance.
There exist two ways of solving disputes: by way of determination and by way of conciliation. Such cases as guardianship for adults, granting permission to adopt a minor, and probate are all disposed of by the determination process (shimpan). Such matters as disputes between husband and wife, disputes among relatives (e.g., disputes relating to support and those relating to partition of estate), and divorce cases are all cognizable under the conciliation procedure.
A judicial divorce is distinguished from divorce by mutual agreement. The former may be sought through an action in the district court, but it must commence with conciliation proceedings in the family court. Secondly, the family court has jurisdiction over delinquent juveniles under 20 years of age who have committed a crime or are prone to commit offenses (14-19years old) or who have violated penal provisions or are prone to violate them (under 14 years old). Finally, the family court has jurisdiction over adults indicted for the offenses that are detrimental to the welfare of juveniles.
Cases brought to the family court are handled either by a single judge or a collegiate body of three judges fully utilizing the scientific reports prepared by the family court probation officers as well as the diagnostic results of the medical officers who are experts on psychiatry.
Jurisdiction over Family Affairs Cases
The Family Court has a very broad jurisdiction encompassing all disputes and conflicts within the family as well as all related domestic affairs which are of legal significance. The Law for Determination of Family Affairs divides these problems into three kinds:
(a) matters which by nature can only be disposed by a court's judgment such as a guardianship for adults, a declaration of disappearance, or a correction of the family registers (These are called Ko-type matters.);
(b) matters which should be disposed in accord with the agreement of the parties such as divorce (These are litigation matters.); and
(c) matters which may be disposed either by agreement of the parties or by a court's decision such as share of expenses arising from marriage or partition of a decedent's estate (These are called Otsu-type matters.)
The law provides that (a) will be governed exclusively by the determination procedure and (b) will follow exclusively the conciliation proceedings while (c) will be governed in the first instance by the conciliation proceedings and, in the event of failure of conciliation, by the determination procedure.
Though a judicial divorce may be sought in Japan by a civil litigation in the District Court, conciliation proceedings must first be commenced in the Family Court. Here an attempt is made through the conciliation proceedings to eliminate difficulties and to reconcile the parties. Since a court's judgment or certification is not required for divorce in Japan (which takes effect by the registration of mutual agreement of the spouses), only disputed divorce cases are brought to the Family Court for conciliation proceedings, where most of the cases are settled. Only when the parties could not reach an agreement and one of the spouses still seeks divorce, a suit will be brought to the District Court.
The new provisional remedy system came into force in the determination procedure in 1981. This is a means whereby the party prevents the adverse party from taking steps which would thwart the enforcement of the final determination during the course of the determination procedure. For instance, in case where a divorced wife applies for a determination of distribution of matrimonial property on divorce and her husband is likely to dispose the property, the Family Court may issue an order of provisional disposition prohibiting him from disposing the property until the final determination.
This new provisional remedy system also enables the party to prevent imminent danger during the determination procedure. For instance, in case where an applicant for a determination of support is too poor to buy the daily necessities, the Family Court may issue an order of provisional disposition forcing the adverse party to pay money temporarily until the final determination. These orders of the Family Court are enforceable.
Although the general procedure (dealt in the District Court) of compulsory execution is available for the enforcement of performance of obligations decided upon or agreed upon in the disposition of family affairs cases, the Family Court has power to take, upon application of a party (obligee), certain measures for ensuring the performance of such obligations. The Family Court will investigate, upon application of the party concerned, to see if an obligation is performed, and if not, admonish and facilitate the other party (obligor) to perform it. In case the obligation is not performed, upon application of a party, the Family Court may issue a performance order if the obligation is concerning property rights. Failure to obey the performance order may result in imposing a non-penal fine against the obligor.
Information and Advising service for domestic affairs at the Family Court is an accompanied service to filing process, rendered by competent members of the personnel in response to the request of the general public.
When any citizen with various family troubles steps in the office of the Family Court, the consultant on duty listens to and helps him/her to find what his/her problems really are. If necessary, as is often the case, the consultant informs him/her of the details of the filing procedure. This service provides an easier access to the proceedings of the Family Courts (and of other social welfare agencies, too), and is very popular as the statistics (389,299 people consulted at the Family Court in 2000.).
Procedures for Family Affairs Cases
(a) Both determination and conciliation proceedings are commenced upon application of the person concerned. The application may be either written or oral. All hearings are not open to the public and informal, which are quite different from litigation in the District Court.
(b) After an application for the determination proceedings is filed, the Judge of Family Affairs adjudicates the case taking into consideration the relevant information obtained through the documents submitted by the party, investigation by the Family Court Probation Officer, hearing before the Judge, etc. This adjudication of the Judge is called "shimpan (determination)", and if the party is not satisfied, he/she may make an appeal within 14 days, and the determination of the Family Court will be reviewed by the High Court. (Types of cases to be reviewed by appeal are provided by law or the Rules of the Supreme Court, so appeal is not always permitted in every case. ) When an appeal is not filed within 14 days or the High Court dismisses the appeal, a determination of the Family Court becomes legally binding. In case a determination becomes legally binding, in accord with the content of the determination, the concerned party may apply for family registration, or get the payment.
(c) Conciliation seeks to settle a family dispute at the Family Court facilitating a reconciliation between the parties. The conciliation proceedings are conducted by a conciliation committee which is normally composed of one Judge of Family Affairs and two Conciliation Commissioners of Family Affairs, one of whom is usually a woman. As mentioned above, the parties are ordinarily summoned to the Family Court for a meeting to hear each party's view, to coordinate requests of concerned parties for agreement.
When parties in the conciliation proceedings reach an agreement approved by the conciliation committee, the agreement is entered in the court's case record and it has the same force as a judgment or an order of determination. Cases most frequently subjected to conciliation are those involving divorce, designation of the parent to exercise parental power, partition of a decedent's estate, compensation on termination of de facto marriage, and support. Applications for divorce are submitted principally by wives, constituting over 70 percent of the total.
After Otsu-type matters mentioned previously, when the parties cannot reach an agreement in conciliation proceedings, the case automatically proceeds to the determination proceedings.