| Date of the Judgment | 1993.10.19 |
| Case Number | 1993(O)No.609 |
Reporter: Minshu Vol.47, No.8, at 5099
Title: Claim for transfer of children on the basis of the
Habeas Corpus Law and overt illegality of detention of children
The Third Petty Bench
Result: Reversed and remanded
Original court: Kobe District Court
Summary
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.
Full text:
1993 (o) 609
Judgment
With regard to the Case of Claim for Habeas Corpus, Case 6 of
1992, (jin) petitioned before the Kobe District Court, an appeal was filed by
the appellant et al. requesting the total reversal of the judgment given by that
court on March 22, 1993, and the appellees requested a judgment dismissing the
appeal. Accordingly, this Court delivers a judgment as follows.
Main text of Judgment
The original judgment shall be reversed. The instant case
shall be remanded to the Kobe District Court.
Reasons
Concerning the grounds for acceptance of appeal submitted by
the appellant's attorney, Saburo Kamiya
1. The following is an outline of the facts found in the
original judgment:
1) The appellant X1 (the restrainer) and the appellee (the
claimant) married on February 17, 1988, and the detainee A was born to them on
July 17 of that year and the detainee B was born to them on July 11, 1989. The
appellant and the appellee (the married couple) moved to accommodation
administered by the prefectural government (address of the appellee specified in
this judgment) in 1990 where they subsequently lived. However, the relationship
between the couple gradually deteriorated and the appellant X1 on August 12,
1992 traveled with the detainees to visit the house of the aunt in order to pay
respects at the family grave in Okayama Prefecture. On the way back, he stopped
at the home of appellant X2 (restrainer, father of appellant X1), which was
where appellant X1 was raised as a child, and began to live there together with
the detainees.
On September 1, 1992, the appellee went together with her
mother to the house of appellant X2 and requested transfer of the detainees.
This request was refused, whereupon the appellee escorted the detainees away.
The appellants X2 and X3 (restrainer, mother of appellant X1) chased after them
and a struggle ensued by the roadside as a result of which the detainees were
taken back to the house of appellant X2 by the appellants.
Around the end of September 1992, the appellee filed for
conciliation to seek divorce with appellant X1 to the Kobe Family Court, but
discussions concerning determination of parental rights, etc., were unproductive
and the conciliation ended in failure.
2) Conditions of custody by the appellants over the detainees
and circumstances on the appellants' side
The detainees are being looked after on a daily basis
primarily by appellant X3. The house of appellant X2 (address of the appellants
specified in this judgment) is a single-story building consisting of three rooms
(one 3-mat room, one 4-mat room, one 6-mat room) in addition to facilities
including kitchen and bathroom. The house is located close to the large
precincts of a Shinto shrine. The detainees frequently play outdoors with other
children from the neighborhood and they are in good health. The detainees
appear to understand the difficult relationship between their parents and they
never refer to the appellee in front of the appellants.
Appellant X1 strives to return home by 6:00 p.m. and to have
contact with the detainees, endeavoring to take his evening meal with the
detainees. The appellants associate with the detainees with an attitude of
affection and they wish to raise the detainees in the future.
Appellants X1 and X2 work as plumbers in the employ of Daijin
Setsubi Kogyosho, a business which is run by the uncle of appellant X1 (the
elder brother of appellant X2). The monthly income of appellant X1 is
approximately 400,000 yen and that of appellant X2 is approximately 300,000 yen.
Since the uncle of appellant X1 has no children, it is possible that appellant
X1 may succeed to management of his uncle's business in the future.
3) Circumstances on the appellee's side
The afore-mentioned accommodation administered by the
prefectural government in which the appellee lives (approx. 80 square meters) is
being rented in the name of appellant X1, and even after the couple divorce, it
is likely that the appellee will be allowed to continue living there. The
parents of the appellee live together with the appellee's elder brother five
minutes walk away from the afore-mentioned accommodation administered by the
prefectural government, but since the accommodation of the parents consists of
two rooms with dining room and kitchen, the appellee is not considering
returning to the parental home.
The appellee has been working part-time in a nearby
restaurant since October 1992. Her hourly wage is 750 yen and her monthly
income is between 100,000 and 120,000 yen, but since this leaves her 30,000 or
40,000 yen short of her everyday needs, the shortfall is made up for by the
appellee's parents.
The father of the appellee (58 years of age) is employed in a
steel foundry and earns a wage of approximately 400,000 yen a month. He intends
to work part-time in the same occupation after reaching retirement age (60 years
of age). The mother of the appellee works as a hotel receptionist once every
three days and has a monthly income of approximately 160,000 yen.
If the appellee were to take custody of the detainees, she
intends to devote herself to raising the children until they are old enough to
attend kindergarten, and the appellee's parents have promised to provide her
with assistance with living expenses and to provide other cooperation in the
meantime.
2. The presupposition of the court of first instance was
that, unless there are special circumstances that make it evident that the
mother is seriously deficient as regards her fitness for care, education and
maintenance of her children and in terms of her capacity in this regard, etc.,
it is more appropriate for the mother than for the father to care, educate and
maintain infants of three or four years of age such as the detainees and that
this is in line with the well-being of the children. From the standpoint of
this premise and taking account of the afore-mentioned circumstances, (1)
although there is no significant difference between the appellants and the
appellee as regards their love and affection for the detainees, their desire to
care for them, and their living environment, whereas appellant X1 had the time
to come into contact with the detainees only during the evening and on holidays
due to his work, the appellee intended to devote herself entirely to raising the
detainees until they were old enough to attend kindergarten, and for this reason
it was in the welfare of the detainees that they be looked after and raised by
the appellee; and (2) although the appellee has insufficient capacity to support
herself through her own efforts, her parents have promised to provide her with
support, and, bearing this in mind, although the appellee's position is no doubt
slightly inferior to that of the appellant, in the instant case it is likely to
be in the interests of the detainees to be raised by the appellee. For these
reasons, it was judged that the instant case of detention (refers to the care,
education and maintenance of the detainees by the appellants; the same shall
apply hereinafter) could only be judged to be overtly illegal, and the
appellee's claim for habeas corpus in the instant case was granted.
With regard to the claim of the appellants that the appellee
was unfit to raise the detainees since she was constantly inebriated with
alcohol, the court of first instance stated that there could be no doubt that
the appellee drank frequently and to excess until the detention was exercised,
but it could not be said that her drinking was of a level that prevented her
from raising the detainees. Moreover, if she were to be given custody of the
detainees, she could be expected to exercise self-control as she cared for,
educated and maintained the detainees. It was concluded therefore that there
was no special circumstance that indicated that the appellee was unfit to care
for, educate and maintain the detainees.
3. However, the afore-mentioned judgment of the court of
first instance that the detention in the instant case was overtly illegal cannot
be upheld for the following reasons.
1) In the case where one married partner (the claimant)
demands from the other (the restrainer) the transfer of an infant subject to
joint parental rights on the basis of the Habeas Corpus Law, the appropriateness
or otherwise of the state of detention imposed on the child should be determined
on the basis of consideration of which of the partners is more likely to provide
the child with custody appropriate for the child's well-being, and the claim
should be granted or not in this light (Supreme Court 1967 (o) No. 1455,
judgment of the First Petty Bench on July 4, 1968, Minshu Vol. 22, No. 7, p.
1441). In such a case, in order for it to be stated that custody and detention
of the infant by the restrainer is clearly occurring without authority (see
Article 4 of the Habeas Corpus Regulations), it must be clear that the infant
will be happier as a consequence of being under the custody of the claimant
rather than that of the restrainer, or, in other words, that custody of the
infant by the restrainer will not be contrary to the happiness of the child (see
the afore-mentioned judgment). This is because, in the case where both parents
are jointly exercising parental rights to the infant born between them, custody
of the infant by one of the parents should be regarded on the basis of parental
rights as lawful so long as there are no special circumstances involved.
Accordingly, it must be said that in order for it to be stated that such
custody and detention is overtly illegal as described in Article 4 of the Habeas
Corpus Regulations, it must be clear that said custody is clearly not going to
contribute to the happiness of the child.
2) Considering these matters in connection with the instant
case, according to the facts found by the original court, there is no
significant difference between the appellant and appellee in terms of the
affection they show to the detainees, their desire to care for them, and their
living conditions, and, as far as their economic circumstances are concerned,
the appellee has insufficient capacity to support herself through her own
efforts, in which respect her position is slightly inferior to that of the
appellants. In light of these matters and of what has been stated above, it
cannot be stated clearly that being under the custody of the appellee rather
than of the appellants is likely to contribute to the happiness of the detainees
in the instant case. Expressed differently, it cannot be said that custody of
the detainees by the appellants will clearly not contribute to their happiness.
In the final analysis, the original court showed insufficient awareness of the
above points and failed to study them adequately. Solely on the grounds that
the mother rather than the father would be more suited to caring for, educating
and maintaining infants of three or four years of age such as the detainees, it
was judged that the instant case of detention was overtly illegal. This
judgment is unlawful and represents an erroneous interpretation of Article 2 of
the Habeas Corpus Law and Article 4 of the Habeas Corpus Regulations, and it is
clear that this had an influence on the conclusions reached in the judgment.
4. On the basis of the above considerations, the argument of
the appellants is acceptable in that it is based on the matters described above,
and the judgment of the original court must be reversed. As long as the facts
found above are taken as the premises, the claim being made in the instant case
by the appellee should be denied. However, in the instant case, it is necessary
to obtain the presence in the court of the detainees, who are infants. Bearing
this point also in mind, in accordance with what has been explained above, it is
considered appropriate that the case is reconsidered by the original court, and
that the case is therefore remanded.
Accordingly, in accordance with Article 46 of the Habeas
Corpus Regulations and Article 407, paragraph 1 of the Code of Civil Procedure,
the judgment as in the Main Text is herewith delivered on the basis of the
unanimous opinion of the Justices, with concurring opinions expressed by Justice
Tsuneo Kabe and Justice Itsuo Sonobe.
The concurring opinion of Justice Tsuneo Kabe is filed as
follows.
1. Both in the United Kingdom, which is the mother country of
habeas corpus law, and in the United States, which inherited this law, in the
case where a dispute arises between a mother and a father in connection with the
custody of an infant, legal precedent indicates that attribution of the custody
is determined from the standpoint of which parent is the more likely to
contribute to the true happiness of the child. This is the correct and
appropriate standpoint for judgment in awarding rights to custody over a child.
In contrast, Japan possesses the Habeas Corpus Law and the
Habeas Corpus Regulations as statutes. In the case where either married partner
(the father or the mother) with parental rights cares for an infant to the
exclusion of the other parent, a decision from the afore-mentioned perspective
on whether this custody (detention) "fails to accord with due process under the
law" as provided for in Article 2 of the Habeas Corpus Law is clearly not in
line with the letter of the law.
However, examining legal precedent, one is made aware that
the Supreme Court has affirmed such a stance from the outset. An example is
provided by the judgment of the Second Petty Bench delivered on 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).
2. Let us now take a look at how the Supreme Court, having
adopted such an approach from the earliest period of the establishment of
judicial precedent in connection with the Habeas Corpus Law, has handled this
question on the basis of previous judgments made by the Grand Bench. As is well
known, the system of habeas corpus adopted in Japan has its origins in English
and American law. However, with regard to application of this law, any
arguments must inevitably be based on the letter of the statutes, in particular
Article 2 of the Habeas Corpus Law and the stipulations of Article 4 of the
Habeas Corpus Regulations. Let us examine what opinions have been delivered in
judgments of the Grand Bench in connection with the purport and objectives of
the system and of the meaning of the stipulations.
There are three precedents given by the Grand Bench. These
are 1953 (ku) No. 55, determined on April 26, 1954, Minshu Vol. 8, No. 4, p.
848; 1955 (o) No. 81, determined on September 28, 1955, Minshu Vol. 9, No. 10,
p. 1453; and 1957 (o) No. 227, determined on May 28, 1958, Minshu Vol. 12, No.
8, p. 1224. The last of these three judgments 1958 by the Grand Bench offers a
general summary of precedent cases rendered by the Supreme Court and of
judgments on the petty bench. Since then there have been no cases delivered by
the Grand Bench to be followed in the interpretation and application of related
laws. Although the passage is rather long, I wish to quote it below, dividing
it up into the relevant parts.
3. The points made in the judgment given by the Grand Bench
in 1958 are as follows:
1) "Cases in which a claim can be made for relief in
accordance with the Habeas Corpus Law in connection with a person whose personal
liberty is being restrained by means of procedures that fail to accord to due
process under the law are restricted to those where the restraint has occurred
or the decree or disposition relating to the restraint has been made clearly
without authority or where there has clearly been a serious violation of the
methods or procedures provided for in the law (main text of Article 4 of the
Habeas Corpus Regulations). In other words, there are various limitations on a
claim for relief on the basis of the Habeas Corpus Law such that the restraint
has occurred or the decree, etc., in connection with the restraint has been made
without authority or that the method or procedure used in this regard
constitutes a serious violation of the law, and that such facts shall be clearly
found."
"These limitations can be appreciated in light of the fact
that the aim of the Habeas Corpus Law is to ensure that the liberty of a
restrained party can be recovered rapidly and easily by a judicial court.
Accordingly, relief on the basis of the Habeas Corpus Law differs from relief
procedures under civil or criminal law, etc., as regards the method of claim,
the court with jurisdiction, the period of appeal, the priority given to the
case, and other related procedures in that its main features are ease and speed.
Particularly as regards these procedures, the most distinctive feature is that
there is no need for definite proof of a fact, prima facie proof thereof being
considered to be adequate.
2) "The important matter is that the system of habeas corpus
is a special relief system for use in cases of great urgency, and in this
respect differs from the system involved in civil and criminal trials, where
detailed consideration is given to establishing the facts and to legal questions
(see Article 1 of the Law, the proviso to Article 4 of the Regulations, decision
of the Grand Bench of April 26, 1954). This claim is not intended to take the
place of the filing of a legal action, nor is its character in line with an
appeal aimed at correcting errors of the court in connection with factual
questions or legal questions."
The judgment of the Grand Bench of 1958 indicates that the
purport of the system should be understood as described above. In summary, it
states that the character of the matter under consideration essentially involves
a question of wherein the right of custody lies, i.e. the question of transfer
of the infant between the claimant who had been raising the infant (i.e. a
person who had been in a common-law relationship with the infant's deceased
mother) and the grandparents, who were the detaining parties and were currently
raising the infant. In this regard, the court decided as follows:
3) "Since the original aim of the system of habeas corpus is
to free a restrained person from unauthorized or illegal physical restraint,
there is room for a certain degree of doubt with regard to the handling of such
questions in the form of a habeas corpus incident. However, there is no reason
for such a case to be outside the scope of protection under this system because
an infant is involved. Moreover, the fact that the range of application of this
system is currently expanding to include the handing over of infants is clear in
the light of academic theory and legal precedent in Japan and other countries.
In addition, it might well be assumed that the Habeas Corpus Regulations
(Article 37) are premised upon authorization being applied in such a case. It
is thus only natural that the restrictions imposed by Article 4 of the
Regulations should be applied to a claim for transfer of an infant.
4) "As stressed by the appellant, it cannot be stated
definitively that there was no restraint upon liberty in the instant case. This
is because the nature of custody over an infant is such that there is bound to
be a certain amount of detention exerted. But in the instant case the parties
involved do not dispute that the restrainers et al. are the grandparents or the
guardians and, according to the original judgment, 'there is no prima facie
evidence to suggest that the detainee is being detained by the restrainers et
al. without authority or in a manner significantly and overtly in violation of
the methods and procedures provided for in the law, nor that she is effectively
being deprived of her liberty in an unjust manner.' Since this judgment may be
regarded as essentially correct, this is sufficient to deny that there has been
any lack of authorization or legal violation required for the instant case of
restraint to be subject to a claim for habeas corpus as indicated at the outset.
Accordingly, there are no grounds for the claim in the instant case on account
of this point alone. Even supposing there were grounds of some kind for the
claimant to claim handing over of the infant, such a claim should be made
employing other procedures and it should not be the object of a claim for habeas
corpus."
4. In accordance with the judgment of the Grand Bench of 1958
quoted above, what needs to be studied in connection with a claim for habeas
corpus involving the care of a child when, as in the instant case, a married
couple has separated?
1) Custody and "restraint" with respect to an infant
The afore-mentioned judgment of the Grand Bench states that
there are no grounds for assuming that the question of the possession of rights
to custody over an infant as is concerned in the instant case lies outside the
scope of protection from this system because an infant is involved, although it
assumes at the same time that there may be a certain degree of doubt as to
whether this question should be treated as a case of habeas corpus. In
addition, in this case in which the restrainers caring for, educating and
maintaining the infant were the grandfather (the guardian) and the grandmother,
the reason given for it not being possible to say that there was no detention
being placed on the liberty of the child was as follows: "The nature of custody
over an infant is such that there is bound to be a certain amount of detention
exerted."
If one assumes a case such as that of the kidnapping of a
child, it goes without saying that "there is no reason for such a case to be
outside the scope of protection under this system because an infant is
involved." In such a case, even if the infant were to become emotionally
attached to the kidnapper, the fact that the infant was being cared for would be
no obstacle to treating this as a case of detention exercised over the infant.
However, it should be pointed out that the custody over an
infant when the parents are living apart but are still married is a wholly
different matter. Although they may be living apart, the husband (father) and
the wife (mother) both possess parental rights in respect to the infant, and in
the case where one of the parents (despite having a fraught relationship with
the other) cares for the infant on the basis of his or her parental rights, when
the infant is being looked after under normal conditions and there is no
question of the infant being maltreated or subject to any other treatment
deserving criticism, taking this care to be an example of "restraint" as
referred to in the Habeas Corpus Law and the Habeas Corpus Regulations is to
some extent not in line with the original purport of this system. (Custody of
an infant on the basis of parental rights is not a subject that should be
discussed in terms of "authority" in the first place.)
In such cases, easily granting a claim for habeas corpus is
clearly inappropriate as a matter of course, and in this context the
afore-mentioned judgment of the Grand Bench referring to whether or not "the
detainee is being detained by the restrainers et al. without authority" takes on
a special significance.
2) Limitations on the overt illegality of restraint
The afore-mentioned judgment of the Grand Bench stated as
follows: "…there are various limitations on a claim for relief on the basis of
the Habeas Corpus Law such that the restraint has occurred or the decree, etc.,
in connection with the restraint has been made without authority or that the
method or procedure used in this regard constitutes a serious violation of the
law, and that such facts shall be clearly found." (main text of Article 4 of the
Habeas Corpus Regulations), and "it is thus only natural that the restrictions
imposed by Article 4 of the Regulations be applied to a claim for the transfer
of an infant."
In connection with this point, judicial precedent subsequent
to the afore-mentioned judgment of the Grand Bench specifies that when a claim
for transfer of an infant subject to joint parental rights is made on the basis
of the Habeas Corpus Law, "the emphasis should be placed on which of the parents
is likely through the custody they offer to contribute more to the happiness of
the child," specifying that it needs to be decided whether the detention placed
upon the child is just or unjust and whether to grant or deny the claim on this
basis (Supreme Court 1967 (o) No. 1455, July 4, 1968, judgment of the First
Petty Bench, Minshu Vol. 22, No. 7, p. 1441). However, this judgment of the
First Petty Bench states as follows: "In the case of a claim for relief under
the Habeas Corpus Law, there are limitations as specified in the main text of
Article 4 of the Habeas Corpus Regulations, in particular the limitation that
the restraint must clearly fail to accord with the law, and the above limitation
applies to a claim for habeas corpus demanding the transfer of an infant."
After quoting the judgment of the Grand Bench of 1958, it continues as follows:
"If it is clear that the happiness of the child will be better served if the
child is placed in the custody of one parent rather than the other, it can still
be said that the detention exercised over the child is occurring without
authority."
On this basis, in order for it to be said that the restraint
exercised over the infants in such a case is overtly illegal, it must be clear
that custody by the restrainer (B) is less likely to contribute to the child's
happiness than custody by the claimant (A). Limitations involving the overt
illegality of the restraint (main text of Article 4 of the Regulations) are in
line with the gist of the judgments confirmed on several occasions by judicial
precedent of the Grand Bench, and it seems likely that if this point had been
clearly recognized, it might well have functioned as an appropriate guideline on
the practical level.
However, the judgment delivered by the First Petty Bench
emphasized only the point that the claim for habeas corpus should be granted or
denied mainly on the basis of which of the separated parents was likely to care
for, to educate and to maintain the infants in a manner more conducive to their
happiness. The suggestion of the afore-mentioned judgment concerning the
requirement of overt illegality of the restraint (that it be clear that, in
comparison with the claimant, the restrainers were less likely to provide care
that would contribute to the happiness of the infants) went by without
attracting attention in practical terms.
3) The everyday lives of the detainees under the care of the
restrainers
In the instant case, observing how the children were living
under the custody of the father (husband) and grandparents, there exist
materials that throw clear light on whether or not "the restraint is occurring
overtly without authority" as referred to in Article 4 of the Habeas Corpus
Regulations, namely the report of the court-appointed attorney. This report
contains the following passage:
"The house where the detainees are living
possesses…facilities. They are able to play over a wide area in the nearby
Inari Shrine and appear to be fortunate in having many friends. On the occasion
of my visit, the detainee A was outdoors and, realizing that a guest had
arrived, greeted me with a loud voice saying "Hello!" When the door was opened,
the detainee B was present and greeted me in a manner similar to that of her
elder sister, saying "Hello!" and I gained the impression that the children were
living in a bright and cheerful manner."
Having referred to the living conditions of the father and
the grandparents who are the restrainers in the instant case and to the living
conditions of the detainees under the restrainers, the report concludes as
follows:
"The restrainer X3 told me that, perhaps out of concern for
the feelings of the restrainers, the detainees had never once mentioned the
claimant Y to them. I myself avoided talking to the detainees about their
mother.
As I was about to leave, the detainee A came alone to the
front door and saw me off, saying 'Goodbye, goodbye!' to me and waving her
hands."
As is clear from this, seeing the normal and peaceful daily
lives of the detainees under the care of a person with parental rights (their
father) and their grandparents, surely there is no one who would allege that
this situation corresponded to "restraint" as described in Article 2 of the
Habeas Corpus Law or "a case where restraint is…taking place overtly in an
unauthorized manner" as described in Article 4 of the Habeas Corpus Regulations.
At the present juncture, seen in light of the records for the instant case,
there can surely be no doubt that prima facie proof that it be "clear that
custody of the infant by the restrainer is less likely to contribute to the
child's happiness than custody by the claimant" has not been presented.
5. The final matter in need of consideration is the question
of partial amendments of the Law for Adjudgment of Domestic Relations in
accordance with Law No. 51 of 1980. A system of preservative measures prior to
adjudgment being enforceable as a consequence of these amendments has been newly
instituted (Article 15-3 of the Law for Adjudgment of Domestic Relations).
Followed by this, Article 52-2 of the Regulations on Adjudgment of Domestic
Relations clearly specifies that, in the case where there has been an
application for specification of the party for custody of a child and other
matters in this connection, a family court may make a decree ordering the
necessary preservative measures. In the light of the stipulations of Article 53
of these regulations, there can be no doubt that these preservative measures are
meant to include the transfer of a child prior to the start of adjudgment.
Disputes over the right to custody of a child occurring
between a separated married couple (the child's father and mother) both of whom
have parental rights as in the instant case essentially belongs within the
exclusive domain of a family court, and the family adjudgment system and the
personal and material structures and facilities of a family court exist
precisely to deal with surveys and judgments in this connection. Despite this,
in cases such as the instant case where an infant's safety is not at stake and
there are no urgent problems involved in connection with the infant's care,
education and maintenance, it is impossible to find any grounds for disregarding
use of preservative measures prior to adjudgment (*) in accordance with the
amendments of 1980 and requiring relief on the basis of the Habeas Corpus Law
which "differs from relief procedures under civil or criminal law, etc., as
regards the method of claim, the court with jurisdiction, the period of appeal,
the priority given to the case, and other related procedures in that its main
features are ease and speed" and is "a special relief system for use in cases of
great urgency."
(*): The partial amendments of the Law for Adjudgment of
Domestic Relations based on Law No. 51 of 1980 were realized in response to the
demands of persons involved in practical activities. A working document from
that time contained the following passage:
"Handling of disputes in connection with the custody of
children should ideally be carried out in accordance with the adjudgment
procedures of a family court possessing a scientific study organization. Since
it has now become possible to order a provisional disposition for the transfer
of a child in advance of commencement of the formal adjudgment procedure, this
is likely to have a considerable effect in solving problems of this nature."
(Supreme Court General Secretariat, "Kaisei minpo oyobi kaji shinpan hoki ni
kansuru shitsumu shiryo" (Working documents in connection with the amended Civil
Code and family court law), Katei saiban shiryo, No. 121, 1981, p. 86.)
Such adjudgment procedures or provisional measures prior to
an adjudgment procedure may be described correctly as the unique field of
competence of a family court. Amendments in the system notwithstanding, if the
situation arises whereby these measures are not used and district courts award
writs of habeas corpus frequently, on the one hand, there will be a need for
reflection on the simplistic application of such claims while, on the other
hand, I believe that this problem should be thought of as one that has a bearing
on the very raison d'etre of family courts.
Justice SONOBE Itsuo joined the opinion filed by Justice KABE
Tsuneo.
Supreme Court, the Third Petty Bench
Presiding judge: Justice KABE Tsuneo
Justice SONOBE Itsuo
Justice SATO Shoichiro
Justice OHNO Masao
Justice CHIKUSA Hideo
(* Translated by Judicial Research Foundation)
