| Date of the judgment | 1978.2.24 |
| Case number | 1976 (O) No.361 |
Judgment concerning a false
notification of the birth of a legitimate child, etc. and the validity
of acknowledgement of paternity
Date of the judgment: 1978.2.24
Case number: 1976 (O) No.361
Reporter: Minshu Vol. 32, No. 1, at 110
Title: Judgment concerning a false notification of
the birth of a legitimate child, etc. and the validity of
acknowledgement of paternity
Case name: Case to collect a loan
Result: Judgment of the Second Petty Bench, dismissed
Second instance court: Tokyo High Court
Summery of the judgment:
In the case where the father registered the birth of
an illegitimate child as a legitimate child or as an illegitimate
child, either register is valid as notification of paternity once the
said register is accepted by an official in charge of family
registration.
References:
The Civil Code
Article 781
The acknowledgement of a child is effected by giving
notification thereof in accordance with the provisions of the Family
Registration Law.
2. Such acknowledgment may also be effected by means of will.
The Family Registration Law
Article 52
The father or the mother shall register the birth of
a legitimate child, and if the parents divorce before the birth of a
child, the mother is required to register the birth of a child.
2. The birth of an illegitimate child shall be registered by the mother.
3. If the person required to register the birth of a
child in accordance with the provisions of the two preceding paragraphs
is not able to register the birth thereof, the following party shall
register the birth thereof in the following order :
(1) A person who lives with the child, or
(2) A doctor, a midwife or others present at the delivery of the child
Main text of the judgment:
This KOKOKU-appeal is hereby dismissed.
The litigation cost incurred in this appeal shall be borne by the Appellant.
Reasons:
Concerning the first reason for appeal presented by Counsel Hiroo Higasa and Counsel Setsuo Mizoguchi
We affirm as justified the finding and judgment by
the original court that in the recognition of the non-litigant late Rin
Sui Shun being of the Republic of China nationality, ascertaining that
the law of his own country in terms of the law governing the
application of laws should be the law of the Republic of China, applied
the law of the Republic of China to the said person's heirship
according to Article 25 of the law governing the application of laws
and to the paternity acknowledged by the said person according to
Article 18 of the said law. We conclude that nothing of the original
judgment involves the alleged violation of law, therefore the
Appellant's argument cannot be accepted.
Concerning the second reason for appeal
In the case where the father registered the birth of
an illegitimate child as a legitimate child or as an illegitimate
child, it is appropriate to construe that either register is valid as
notification of paternity once each register is accepted by an official
in charge of family registration. All in all, considering that either
of the said registers is not intended as acknowledgement of paternity;
that there is misrepresentation contrary to facts for a description of
the mother in the said register entering an illegitimate child as a
legitimate one, and it is not envisaged by law for the father to
register the birth of an illegitimate child; that it seems that
the father registered the birth thereof in his capacity as a person
living with the child at the time he happened to get it registered (see
Article 52, para. 2 and 3); that whereas notification of paternity
acknowledged is to indicate his intention to acknowledge a child as his
own and declare to that effect to an official in charge of family
registration, each of the said registers includes explicit intention to
acknowledge a child as his own and declare to that effect; and that
each of the said register was accepted by an official in charge of
family registration, we are of the opinion that it is reasonable to
affirm the validity of each register as notification of acknowledgement
of paternity.
We uphold the finding and judgment by the original
court with regard to other points made by the Appellant's side and we
don't find the alleged violation of law in its process.
Concerning the third reason for appeal
We affirm the finding and judgment by the original
court with regard to the third reason presented by the Appellant's
side. The argument is developed from an independent standpoint of the
Appellant's side to rebut the original judgment, which cannot be
accepted.
Concerning the fourth reasons for appeal
We affirm as justified the finding and judgment by
the original court to infer that there was mutual consent between the
appellees for each of them to claim the said loan amounting to
2,000,000 yen and delinquency charges and we don't find the alleged
violation of law in its process, therefore the argument made by the
Appellant cannot be accepted.
Therefore, in accordance with Article 401, Article
95, Article 89 of the Code of Civil Procedure, the decision is passed
unanimously as described in the text.
Presiding Judge, Justice OHTSUKA Kiichiro
Justice YOSHIDA Yutaka
Justice MOTOBAYASHI Yuzuru
Justice KURIMOTO Kazuo
