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
| Date of the judgment | 2000.1.27 |
| Case number | 1997(O) No.1203 |
Source:
Online list of judgments of the Japanese Supreme Court
Date of the judgment: 2000.1.27.
Case number: 1997(O) No.1203
Title: 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
Claim for the Ownership Transfer Registration Formalities
Judgment of the First Petty Bench; partially reversed, partially dismissed
[The Court of First Instance] Osaka District Court
[The Court of Second Instance] Osaka High Court
Summary of the Judgment
1. In international legal relations, where a
prerequisite issue indispensable for solving a issue of law (the
present issue) constitutes another issue of law distinct from the
present issue in terms of international private law, the applicable law
for the prerequisite issue should be decided under the international
private law of Japan, the venue of the trial.
2. In the case of examining the existence of foreign
parent-child relation, where the legitimate parent-child relation is
denied under an applicable law governing such legitimate parent-child
relation, the applicable law should be applied to judge the existence
of parent-child relation except for legitimate parent-child relation.
3. Under the rules concerning the application of
laws before being revised by Law number 27 of 1989, the applicable law
governing the existence of legitimate parent-child relation in the case
of obtaining legitimacy based on reasons other than birth should be the
law of the home country of the mother's husband at the time when the
fact which should constitute the cause of obtaining legitimacy was
achieved.
4. Under the rules concerning the application of
laws before being revised by Law number 27 of 1989, the existence of
parent-child relation except for legitimate relation between parties
who are not related to each other by birth should be recognized if both
the law of the parents' home country and the law of the child's home
country at the time when the fact which should constitute the cause of
establishing the said parent-child relation admit the existence of the
said parent-child relation.
References
Article 17 of the rules concerning the application
of laws before being revised by Law number 27 of 1989, Article 18
para.1 of the rules concerning the application of laws before being
revised by Law number 27 of 1989 and Article 22 of the rules concerning
the application of laws before being revised by Law number 27 of 1989
Presiding judge, Justice OHDE Takao
Justice ONO Motoo
ENDO Mitsuo
IJIMA Kazutomo
FUJII Masao
