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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

Date of the judgment: 2004.07.08

Case number: 2000(Gyo-Hi)No. 149

Reporter: Minshu Vol. 58, No. 5

Title: 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

Case name: Case to seek confirmation of nationality

Result: Judgment of the First Petty Bench, dismissed

Court of the Second Instance: Osaka High Court, Judgment of January 28, 2000

Summary of the judgment:
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 dose not lose Japanese nationality despite the effectuation of the Peace Treaty.

References: Article 10 of the Constitution, Article 3 of the Common Law (Law No. 39 of 1918), Article 23 of the Old Nationality Law (before abolishment by Law No. 147 of 1950), Articles 8 and 9 of the Nationality Law (before amendment by Law No. 45 of 1984), Article 10 of the Nationality Law (before amendment by Law No. 268 of 1952), and Article 2(a) of the Treaty of Peace with Japan

Article 10 of the Constitution
The conditions necessary for being a Japanese national shall be determined by law.

Article 3 of the Common Law (Law No. 39 of 1918)
A person who enters a family in a region under the law of the region shall withdraw from a family in another region.
2. A person who may not withdraw from a family in a region under the law of the region may not enter a family in another region.

Article 23 of the Old Nationality Law (before abolishment by Law No. 147 of 1950)
A Japanese child shall lose Japanese nationality when he has acquired foreign nationality due to acknowledgement; provided that, however, this shall not apply if the child becomes a wife, husband, or adopted child of a Japanese national.

Article 8 of the Nationality Law (before amendment by Law No. 45 of 1984)
A Japanese national shall lose Japanese nationality when he has acquired foreign nationality of his own free will.

Article 9 of the Nationality Law (before amendment by Law No. 45 of 1984)
A Japanese national who was born in a foreign country and acquired nationality of the country by birth shall lose Japanese nationality retrospectively from the time of the birth, unless he declares his intention to retain his Japanese nationality in accordance with the provisions of the Family Registration Law (Law No. 224 of 1947).

Article 10 of the Nationality Law (before amendment by Law No. 268 of 1952)
1. A Japanese national who has foreign nationality may renounce his Japanese nationality.
2. Such person who intends to renounce his Japanese nationality shall make notification to the Director-General of Justice.
3. Such person who has renounced his Japanese nationality shall lose Japanese nationality.

Article 2(a) of the Treaty of Peace with Japan
(a) Japan recognizing the independence of Korea, renounces all rights, titles and claims to Korea, including the islands of Quelpart, Port Hamilton and Dagelet.

Main text of the judgment:
The jokoku appeal shall be dismissed.
The jokoku appellant shall bear the whole cost of the jokoku appeal.

Reasons:
Concerning the grounds for the petition for accepting the jokoku appeal argued by the attorney for jokoku appellant YAMAZAKI Ushio and other attorneys.
1. The outline of the facts legally determined by the judgment of the second instance is as follows.
(1) The jokoku appellee was born, out of wedlock, on August 14, 1945, to a Korean father, A, who has a permanent domicile in Gyeongsangnam-do, Korea, and a Japanese mother, B, who had at that time a permanent domicile in Saitama, Japan. The jokoku appellant acquired Japanese nationality as a child of a Japanese mother.
(2) On September 8, 1950, A acknowledged the jokoku appellee (this acknowledgment shall hereinafter be referred to as the "Acknowledgement").
(3) (a) In Japan, before the effectuation of the Treaty of Peace with Japan (hereinafter referred to as the "Peace Treaty") on April 28, 1952, in cases where an act relating to the status of person was conducted between people who belonged to regions where different laws were applicable, e.g. Japan, Korea, and Taiwan, the law applicable to the act should be determined in accordance with the provisions of the Law Concerning Application of Laws in General (before amendment by Law No. 27 of 1989), which applied mutatis mutandis under Article 2, para. 2 of the Common Law (Law No. 39 of 1918), and therefore the effect of an acknowledgement by a Korean father of a child born to a native Japanese mother was supposed to be governed by a law of Korea, the region to which the acknowledging person (the father) belonged. Articles 1 and 11 of the Decree on Civil Affairs in Korea (Decree No. 7 of 1912) provided that Article 827, para. 2 of the Old Civil Code (before amendment by Law No. 222 of 1947) should be applicable to the effect of such acknowledgement, and in consequence, a child born to a Korean father and a native Japanese mother was supposed to be an illegitimate child of the father by his acknowledgement.
Article 11 of the Decree on Civil Affairs in Korea also provided that Korean custom should be applicable to matters concerning relatives and inheritance of Korean people, except for those otherwise provided such as acknowledgement. According to Koran custom, a child who became an illegitimate child of a Korean father by his acknowledgment should necessarily enter the Korean father's family without the consent of the head of the family.
Therefore, a child who was born to a Korean father and a native Japanese mother and was acknowledged by the father should become the illegitimate child of the Korean father as well as a member of the father's family, thereby entering the father's Korean family register.
(b) Article 3, para. 1 and 2 of the Common Law provided as follows: "A person who enters a family in a region under the law of the region shall withdraw from a family in another region"; "A person who may not withdraw from a family in a region under the law of the region may not enter a family in another region." Under these provisions, where an act relating to the status of person was conducted between people who belong to regions where different laws were applicable, if such act brought about an effect under a family law of one of the regions, i.e. entry in a family, the effect of the act should in principle be recognized in the other region and should result in the withdrawal from a family in the other region. Consequently, such act was supposed to bring about the effect of transferring a person from a family register in one of the regions to a family register in the other region.
Therefore, without taking into account the effect of the amendment of the Nationality Law discussed later, where a child born to a native Japanese mother and a Korean father has been acknowledged by the father and entered the father's Korean family as an illegitimate child, the child shall be excluded from the Japanese family register.
(c) Upon the effectuation of the Peace Treaty, Japan recognized the independence of Korea and renounced all rights, titles and claims to Korea. In consequence, people who had previously had legal status as Korean people under Japanese laws-or more specifically, those who had been governed by the Decree on Korean Family Registration (Korean Governor Office Decree No. 154 of 1922) and who should be entered in Korean family registers, including those who became to have a reason to be entered into Korean family register due to an act relating to the status of person that was conducted between Japanese people and Korean people-are regarded as having acquired Korean nationality while losing Japanese nationality (See 1955(O)No. 890, judgment of the Grand Bench of the Supreme Court of April 5, 1961, Minshu Vol. 15, No. 4, at 657, 1958(A)No. 2109, judgment of the Grand Bench of the Supreme Court of December 5, 1962, Keishu Vol. 16, No. 12, at 1661, 1963(O)No. 1343, judgment of the Second Petty Bench of the Supreme Court June 4, 1965, Minshu Vol. 19, No. 4, at 898, 1994(Gyo-Tsu)No. 109, judgment of the First Petty Bench of the Supreme Court of March 12, 1998, Minshu Vol. 52, No. 2, at 342).
(d) The main text of Article 23 of the Old Nationality Law (Law No. 66 of 1899) provided as follows: "A Japanese child shall lose Japanese nationality when he has acquired foreign nationality due to acknowledgement." The Old Nationality Law was abolished under the supplementary provisions of the Nationality Law (Law No. 147 of 1950) that came into force on July 1, 1950.
As causes of the loss of Japanese nationality, the New Nationality Law only prescribed cases where a Japanese national acquired foreign nationality of his own free will (Article 8 of the Nationality Law before amendment by Law No. 45 of 1984), where a Japanese national who was born in a foreign country and acquired nationality of the country by birth failed to declare his intention to retain his Japanese nationality in accordance with the provisions of the Family Registration Law (Article 9 of the Nationality Law before amendment by Law No. 45 of 1984), and where a Japanese national who has foreign nationality renounced his Japanese nationality by making notification (Article 10 of the Nationality Law before amendment by Law No. 268 of 1952), and the Law did not include any provision that regards an act relating to the status of person, such as an acknowledgment, as a cause of the loss of Japanese nationality.

2. The court of the second instance upheld the jokoku appellee's claim for confirmation that the jokoku appellee had Japanese nationality, on the following grounds: the entry into a Korean family register after the exclusion from a Japanese family register would result in the loss of Japanese nationality upon the subsequent effectuation of the Peace Treaty; however, in accordance with the Nationality Law that came into force on July 1, 1950, a Japanese child shall not lose Japanese nationality by an acknowledgement, the father's unilateral declaration of intent; in consequence, a child who was born to a native Japanese mother and a Korean father and acknowledged by the father shall fall under the category of "a person who may not withdraw from a family in a region under the law of the region" set forth in Article 3, para. 2 of the Common Law and shall not fall under the category of a person who is to enter a Korean family register, and therefore the child shall not lose Japanese nationality despite the effectuation of the Peace Treaty.

3. The Supreme Court makes the following judgment.
Article 3 of the Common Law, based on the institutional arrangement at that time in which different laws were applicable depending on regions, e.g. Japan, Korea, and Taiwan, prescribed the acquisition or loss of regional registry in accordance with the provisions of Articles 5, 6, 18, 19, 23 of the Old Nationality Law. Under the laws of that time, regional registry served as quasi-nationality in individual regions.
As mentioned above, the main text of Article 23 of the Old Nationality Law provided that "a Japanese child shall lose Japanese nationality when he has acquired foreign nationality due to acknowledgement." The New Nationality Law, which came into force on July 1, 1950, ruled out the system in which a Japanese national would lose Japanese nationality due to an act relating to the status of person that was not relevant to his intention, and abolished the provision of Article 23 of the Old Nationality Law. Considering that the acquisition or loss of regional registry was prescribed in accordance with that provision of the Old Nationality Law, we can only say that, as a result of such changes in the legal system, an acknowledgement made by father as his unilateral declaration of intent after the date of enforcement of the New Nationality Law is no longer a cause of the acquisition or loss of regional registry. Therefore, there is no reason to exclude a child acknowledged by a Korean father from a Japanese family register.
The notification of the Director of the Civil Affairs Bureau of the Ministry of Justice as of December 6, 1950, titled "Acknowledgment of a Child of a Native Japanese Person and a Korean or Taiwanese Person" provided as follows: "Conventionally, the family registration in the case described in the title of this notification has been handled in Japan in accordance with the purport of the provisions of Article 5, sub-para. 3 and Article 23 of the Old Nationality Law and Articles 22 and 23 of the Family Registration Law: a child who was born between a native Japanese father and a mother having a permanent domicile in Korea or Taiwan and was acknowledged by the father shall be included in the family register in Japan; whereas a child who was born between a father having a permanent domicile in Korea or Taiwan and a native Japanese mother and was acknowledged by the father shall be excluded from a Japanese family register. In the future, however, this handling of the family register shall be altered, and such acknowledgment shall not bring about any change in the child's family register." In other words, this notification, based on the same view as that discussed above, instructed that the treatment of regional registry for a child who was born between native Japanese person and a Korean or Taiwanese person and was acknowledged by the father should be altered in line with the purport of the newly implemented Nationality Law. Assuming that, there is no reason to apply the notification of the Director of the Civil Affairs Bureau only to acknowledgments made on or after December 6, 1950 (the date of the notification), and as mentioned above, acknowledgements made on or after July 1, 1950, but before December 6, 1950, should also be handled in accordance with the Nationality Law. By doing so, the constitutional guarantee of equality before law can be fulfilled.
For these reasons, it is reasonable to consider that there is no reason to exclude a child who was acknowledged by a Korean father after the enforcement of the New Nationality Law from a Japanese family register and therefore the child will not lose Japanese nationality despite the effectuation of the Peace Treaty. Assuming that, the jokoku appellee should be deemed to continues to have Japanese nationality even after the effectuation of the Peace Treaty, and the judgment of the second instance that goes along with this reasoning can be accepted. The judicial precedent cited by the jokoku appellant (1961(O)No. 1390, judgment of the Second Petty Bench of the Supreme Court April 5, 1963, Saibanshu Minji No. 65, at 437) relates to the case in which a native Japanese woman who married of her own will to a Taiwanese man on February 12, 1952, lost Japanese nationality after the effectuation of the Peace Treaty, which is of a different type from this case. The jokoku appellant's argument cannot be accepted.

4. Therefore, the judgment was rendered in the form of the main text by the unanimous consent of the Justices.

Presiding Judge, Justice KAINAKA Tatsuo
Justice YOKOO Kazuko
Justice IZUMI Tokuji
Justice SHIMADA Niro
Justice SAIGUCHI Chiharu

(This translation is provisional and subject to revision.)