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Interesting Children Rights Related Court Cases In Japan
Getting Information On Court Cases
In order to get info on legal cases in Japan you have to contact the local
jurisdiction and find out where they keep their court archives. The you
have to go there in person. You also need to know the court case number. You
fill out a form, and they will let you look at the documents right there. They
even let you xerox whatever you need.
Also see the page on Visitation Precedents.
It is not know whether you can get copies of personal cases, like divorce or
custody case. Anyone know??
Anyone know how to get this information on local cases online?
I know for Supreme Court cases... See Resources section below.
Habeas Corpus Law, Parental Abduction and Return of Children
| Date |
Summary |
Court |
Japanese |
English |
| |
Haven't found actual text of this ruling yet. Japanese grandparents
kidnap granddaughter because they don't like man that divorced daughter is dating. October 14, 2006; Supreme
Court suspends 10 month jail sentence from lower court. It's unclear, but it sounds like the child has not been
returned yet. I call this the "OK for grandparents to kidnap" ruling. (cached
copy) |
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| Dec 6, 2005 |
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. |
Supreme Court |
source: local |
source:
local |
| March 18, 2003 |
Dutch man convicted of kidnapping child - Decision upon the
case adjudging that, where a foreign national who has been living separately
from his Japanese wife forcibly takes away his child who has been in the
custody of his wife for the purpose of taking the child to his home country,
such an act of the foreign national shall constitute an offense of
kidnapping for the purpose of transporting the kidnapped person to a foreign
country |
Supreme Court |
source: local |
source:
local |
| April 15, 2002 |
Japanese father kidnaps then returns child, court issues
order without hearing his story, he sues judge and country and loses. A Japanese
father who has lost all access to his child, takes child out of country, to
the US and leaves it with his sibling's family. The Japanese court
issues a habeas corpus order, and the father actually brings the child back
to Japan, likely thinking that the court will at least actually hear him
explain his side of the story. What the court does is just forcibly
shut the door on him when he is entering the courtroom, thereby separating
him from the child. They hand the child over to the mother, and then
issue a decision explaining why the mother gets the child. The father
ultimately sues the judge and the country of Japan. The lawsuit fails.
(I only have this very brief English summary, and the link above to to the
original Japanese. Can anyone translate this for us???) |
Supreme Court |
source:
local |
source: local |
| April 26, 1994 |
1994 (O) No. 65, judgment of the Third Petty Bench of the Supreme Court of April 26, 1994, Minshu Vol. 48, No. 3, 992 Judgment upon a motion for delivery of an infant placed
under joint parental authority in accordance with the Habeas Corpus Law
instituted by either party of a married couple against the other party |
Supreme Court |
source: local |
source:
local |
| October 19, 1993 |
1993 (O) No. 609, judgment of the Third Petty Bench of the Supreme Court of October 19, 1993, Minshu Vol. 47, No. 8, 5099 This ruling seems to say that basically, parental kidnapping
of a child is legal, and the Habeas Corpus Law cannot be used to recover a child, unless the abduction "clearly deprives" the child of happiness. There is a very detailed
translation and description. The exact summary is: "In the case where either person in a married couple claims against the other the transfer of an infant subject to joint parental rights on the basis of the Habeas Corpus Law, in
order for it to be stated in connection with the child custody being provided by the other person in the couple that illegality of the detention is overt, it is necessary for said custody to be clearly depriving the child or children of happiness
in comparison with the custody exercised by the other person in the couple."
(This decision contain several references to other related cases.) |
Supreme Court |
source: local |
source:
local |
| January 18, 1949 |
In this judgment, the original court stated in connection with application of the Habeas Corpus Law that judgment on whether or not it could be said that the detention "fails to accord with due process under the law" should be
reached on the basis of "whether the detention was or was not... effectively unjust". Having upheld this judgment, the court made the following judgment: "Even if [the wife] had snatched [the infant] employing violent means, if it is clear that
the child is currently being educated and maintained peacefully by the mother and that this state is, if anything, a happy one as far as the child is concerned, leaving aside the question of criminal responsibility for the act of violence, as a
question of application of the Habeas Corpus Law the child should not be taken away from the mother and perhaps returned to the father simply because it is assumed that the current situation is one of illegal detention" (and accordingly the claim
for habeas corpus should be denied) (Supreme Court, 1948 (o) No. 130 judgment on same day as above, Minshu Vol. 3, No. 1, p. 10). |
Supreme Court Second Petty Bench |
source: local |
source: local |
Visitation and Child Support
| Date |
Summary |
Court |
Japanese |
English |
| Jan 31, 2002 |
Difficult to understand, but this appears to be a
decision that says even if an illegitimate child is recognized by the
(Japanese) father, it may still qualify for welfare payments (a city had
tried to revoke a child's eligibility to the Child Maintenance
Benefit paid by the city on the grounds that the father had the
child registered in his koseki). |
Supreme Court |
source: local |
source :
local |
| May 1, 2000 |
Decision concerning whether the Family Court may order
appropriate measures for negotiation for visitation by a parent not living
with the child in such case that parents have been in separation due to
broken matrimonial relation.
This decision involves a mother
appealing a family court decision on the grounds that the family court
lacked any statutory authority to award her husband four hours a month of
visitation. This decision rejected the notion that visitation is a right of
demand and held that it is instead a right to request appropriate measures
for the child. It clarified the procedural status of visitation,
particularly in cases of separation before or without divorce, it also
confirmed that visitation is not a substantive right that could be asserted
by parents, either for their own sake or for the sake of their children. |
Supreme Court |
source: local |
source:
local |
| Dec 21, 1999 |
A father was able to win a 5 million yen judgment against his former wife for emotional distress over her
refusal to allow him visitation with their son. This case makes two points. First
this shows that judges will indeed issue monetary fines that could be used to
pressure a spouses into allowing visitation. Second it is a prototypical
example of the ineffectiveness of the Japanese courts at enforcing visitation, since in the end, we have been told by a
non-official source, the father was paid the money, yet has not been able to see his son.
Reportedly, this was payable over a stretch of 20 years in monthly installments, so the real burden on the mother was
small, and likely viewed simply as an unavoidable but bearable cost necessary in order to continue restricting access to the
child. |
Shizuoka District |
source:
local |
source:
local |
| July 6, 1984 |
This Supreme Court decision
rejected a Constitutional right to
visitation.
The SCJ issued its first decision on visitation when it
rejected a father’s argument that failure to award visitation in a
consensual divorce (kyōgi
rikon) was a violation of the right to pursue happiness
guaranteed under Article 13 of the Constitution. According to the SCJ, the
father’s claim was a matter of interpretation and application of Article 766
of the Civil Code, and did not rise to the level of a constitutional issue.
In short, in Japan, the preservation of the parent-child relationship is not
a matter of constitutional import. (Source of this paragraph:
this law journal article.)
Unfortunately I have not been able to find the text yet.
The Japanese reference to it is 37 KASAI GEPPOU 35. Please send me a copy and/or link if you have it. |
Supreme Court |
source: local |
source:
local |
Out of Wedlock Births, Citizenship, and Parent Child Relationships
| Date |
Summary |
Court |
Japanese |
English |
| |
Judgment upon the way of deciding the applicable law as a
prerequisite issue in an international case and the way of judging the
existence of parent-child relation and the applicable law thereof |
Supreme Court |
source: local |
source:
local |
| |
A 2004 case involving citizenship rights for a child born
out of wedlock, stretching back to Japan's imperial past in Korea.
Probably not too relevant, but has a good discussion of various changes to
the nationality law. Judgment concerning whether a child who was born,
out of wedlock, to a native Japanese mother and a Korean father and was
acknowledged by the father after the enforcement of the Nationality Law
loses Japanese nationality after the effectuation of the Peace Treaty |
Supreme Court |
source: local |
source:
local |
| |
Child born out of wedlock to a foreign mother and a Japanese
father gets Japanese citizenship. In this case, a non-Japanese mother,
married to someone else had a child with a Japanese man. Since she was
married to someone else, the father could not acknowledge paternity before
birth. But as soon as the court dis-established paternity of the woman's
husband, the father recognized the child. Therefore the child gets
Japanese citizenship. |
Supreme Court |
source: local |
source:
local |
| |
Child conceived during long-term separation and presumption
of legitimacy |
Supreme Court |
source: local |
source:
local |
| |
Judgment concerning a false notification of the birth of a
legitimate child, etc. and the validity of acknowledgement of paternity |
Supreme Court |
source: local |
source:
local |
| |
Decision upon the case concerning the propriety of awarding
an order by the Family Court to accept the birth report on the ground that
the characters are daily used characters and plain characters, where the
head of municipalities did not accept the birth report on the grounds that a
child's name was written in characters other than those provided in Article
60 of the Census Registration Law Enforcement Regulation |
Supreme Court |
source: local |
source:
local |
Divorce, Infidelity, etc.
| Date |
Summary |
Court |
Japanese |
English |
| |
Judgment upon the case negating tort liability of a third
party who had sexual relations with either party of a married couple whose
marital relation had already broken down to the other party of the couple |
Supreme Court |
source: local |
source:
local |
| |
Judgment upon case where jurisdiction of the Japanese court
was acknowledged in an action claiming divorce from a Japanese resident in
Japan against a German resident in Germany |
Supreme Court |
source: local |
source:
local |
Inheritance
| Date |
Summary |
Court |
Japanese |
English |
| |
A 1997 Supreme Court Case concerning the legality of the
Japanese law that gives only half a share of inheritance to a child born out
of wedlock. The court rejected the argument and confirmed that this is
a legal practice and not against the Japanese Constitution. There was
dissenting opinion. There is also a good description of the
inheritance system for these situations. |
Supreme Court |
source: local |
source:
local |
Other
| Date |
Summary |
Court |
Japanese |
English |
| Oct 17, 2002 |
The Supreme Court issued its first decision on the visa status of a non-Japanese spouse married to a Japanese citizen.
Over ruling the Osaka High Court, the Supreme Court said that a marriage must be viable and ongoing, and if the Japanese spouse commits a misdeed, such as infidelity to break up the marriage, the foreign spouse may legally be deprived of his or
her spouse visa. (cached copy) Although the ruling itself is not yet available, this article describes it in great detail. |
Supreme Court |
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Judgment on speedy trials |
Supreme Court |
source: local |
source:
local |
| |
Judgment concerning the question of whether, in the absence
of a concrete case, the Supreme Court has authority to determine the
constitutionality of any law or the like in the abstract |
Supreme Court |
source: local |
source:
local |
Resources
- Supreme Court Cases can be found here:
TODO: LOOK UP THE FOLLOWING
Cases referenced by JFBA in UN CRC Report
In
reality, only one case has been made public,
where
a foreign spouse could successfully retrieve a child from a Japanese spouse
(judgment at the Supreme Court, June 29, 1978). On the contrary, failed
examples include the judgments ruled by the Supreme Court on February 26,
1985; Tokyo High Court on November 15, 1993, etc
Case Name: Uchimura vs
Kumamoto nishi zeimu shocho, 135 Zeimu sosho shiryo 200 (Kumamoto D. Ct. Feb.
27, 1984), aff'd,144 Zeimu sosho shiryo 357 (Fukuoka High Ct. Feb.28, 1985)
A parent says: Under section 172 of the civil Enforcement act a court
can order the defendant to pay a large penalty for everyday he/she refuses to
perform. There is a case about a mother with court appointed legal custody
over her four year old daughter and could not induce the husband to give her
up. Instead of kidnapping the daughter she sued him. The court gave the man 3
weeks to give her up or pay the mother 30,000yenn for each day that he failed
to comply. With this if the defendant refuses to comply with the per
diem order the judge can jail the defendant. He is also allowed to remove the
child from the father with force. There are numerous cases where judges use
the per diem act to enforce their orders.
The law book I quoted it from is called;
"Japanese Law. An economic approach."
Written by J. Mark Ramseyer and Minoru Nakazoto
University of Chicago Press
Hard cover ISBN: 0226703843 (January 1999)
Paperback ISBN: 0226703851 (January 2001)
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