Source: http://courtdomino2.courts.go.jp/promjudg.nsf/0/2a849a2c651e81f449256dcd002f5393?OpenDocument

Judgment upon the case where (1) an illegitimate child of a foreign mother has not been recognised before birth as an embryo by a father who is a Japanese acquires Japanese nationality on the basis of Article 2, subpara.1 of the Law on Nationality, and (2) an illegitimate child of a Korean mother who was recognised by a Japanese father was allowed to obtain Japanese nationality by of Article 2, subpara.1 of the Law on Nationality.

Date of the judgment:  1997.10.17

Case Number:  1996 (Gyo-Tsu) No.60

Reporter:  Minshu Vol.51, No.9, at 3925

Title:Judgment upon the case where (1) an illegitimate child of a foreign mother has not been recognised before birth as an embryo by a father who is a Japanese acquires Japanese nationality on the basis of Article 2, subpara.1 of the Law on Nationality, and (2) an illegitimate child of a Korean mother who was recognised by a Japanese father was allowed to obtain Japanese nationality by of Article 2, subpara.1 of the Law on Nationality.

Case name:  Claim for Recognition of Nationality

Result: Judgment of the Second Petty Bench, dismissed

Court of the Second Instance:  Tokyo High Court, Judgment of November 29, 1995

Summary of the judgment

1. An illegitimate child of a foreign mother acquires Japanese nationality by birth even when the child has not been recognised as an embryo, if, in accordance with the entry in the register of civil status, the legitimacy of the child as the child of the mother's husband is presumed by statute and for this reason, the application for recognition as an embryo had not been accepted, and if there were special circumstances where, had there not been such a presumption, the child would have been recognised as an embryo, by applying Article 2, subpara.1 of the Law on Nationality with modification, it should be construed that the child acquires Japanese nationality by birth. In order to acknowledge the existence of special circumstances, the procedure to establish the absence of the relationship between the mother's husband and the child was initiated without delay after the birth of the child, and once the absence of such a relationship was established and the application for recognition became possible, the application was made promptly.
2. When a Korean mother A gave birth to child P, A was married to a Japanese, B and therefore, the Japanese father of P, C was unable to lawfully recognise P as an embryo, but after 3 months of the birth of P, a conciliation proceeding for the recognition of the absence of a parental relationship between B and P was initiated and after 12 days of the adjudication recognising the absence of this relationship, C recognised P, under such circumstances, P lawfully acquires Japanese nationality by virtue of Article 2, subpara.1 of the Law on Nationality.

Main text of the judgment

The jokoku appeal shall be dismissed.
The cost of the jokoku appeal shall be borne by the jokoku appellant.

Reasons

On the grounds of the jokoku appeal by the representatives of jokoku appeal, KM, YK, ST, HS, AO, TZ, TY, MU, YY, OH, KT, SH, YT, and YM:

In cases where a mother who is a foreign national became pregnant and the mother is unmarried or the child is not presumed to be the legitimate child of her husband registered in the Civil Status Register, a father who is a Japanese other than the husband is entitled to recognise this child as an embryo and once this is notified, by virtue of Article 2, subpara.1 of the Law on Nationality, the child acquires Japanese nationality at the time of birth. On the other hand, in cases where a mother who is a foreign national became pregnant and the child is presumed to be the legitimate child of the mother's husband registered in the Civil Status Register, even if a father who is a Japanese other than the husband intends to recognise this child as an embryo, the application will be rejected as unlawful for not fulfilling the requirements for recognition, and therefore, the child cannot acquire Japanese nationality by birth by means of recognition as an embryo. In such cases, after the birth of the child, if the absence of the parental relationship between the husband and the child is confirmed by a judgment etc., the application of the father for recognition will be accepted, but in light of Article 3 of the Law on Nationality, recognition does not have a retrospective effect, and it cannot be established that at the time of the birth of the child, there was a parental relationship with the father by law merely by recognition after the birth, and thus, the recognised child does not automatically fall within the purview of the Article 2, subpara.1 of the said Law.
    As indicated above, if, by registration, there is no presumption of legitimacy, there is a possibility for the child to acquire Japanese nationality by birth by recognition as an embryo, while if there is such a presumption, it is not possible to lawfully recognise the child as an embryo, and the child has no possibility to acquire Japanese nationality by birth, there is a major difference in the means of acquiring Japanese nationality between the same illegitimate child of a foreign mother, depending on the registration. An interpretation which results in such a major difference cannot be regarded as reasonable. Therefore, Article 2, subpara.1 of the Law on Nationality should be interpreted and applied in a manner enabling the same treatment between the two as much as possible.
From this viewpoint, if there were special circumstances in an objective way where, had there not been such a presumption, the child would have been recognised as an embryo, by applying Article 2, subpara.1 of the Law on Nationality with a modification, similar to cases where the child was recognised as an embryo, it should be construed that the child acquires Japanese nationality by birth. In light of the necessity of definitely determining the nationality of the child at the time of the birth as much as possible, in order to acknowledge the existence of special circumstances, the procedure to establish the absence of the relationship between the mother's husband and the child has been initiated without delay after the birth of the child, and once the absence of such relationship has been established and the application for recognition became possible, the application was made without delay.
   It is argued that also in cases where there is a presumption of legitimacy by the civil status registration, once the father applies for recognition as an embryo, the application is for the time being rejected, but once the absence of the above parental relationship has been established, it will be accepted, and as a result, the child is regarded to have had a parental relationship with the father from birth and is able to acquire Japanese nationality by birth, and therefore, even in such cases, the possibility of acquiring Japanese nationality by birth is not denied to illegitimate children. However, it is obvious that it is inappropriate to maintain that by applying for recognition as an embryo which is destined to be rejected, there is a way to acquire Japanese nationality. Furthermore, allowing the acquisition of Japanese nationality by birth in such cases means that although at the time of the birth, it could not be said that there was a lawful parental relationship between the father and the child, as a result of a subsequent change of circumstances, it can be regarded as if the parental relationship had existed from the beginning. If this is the case, if a person, on the assumption that the application for the recognition as an embryo would not be accepted for being unlawful, prepares the prerequisites for the acceptance of the application first, and then applies for recognition, applying this subparagraph under the above conditions shall be allowed as a reasonable interpretation of this subparagraph.
According to the facts lawfully established by the original instance court, (1) the jokoku appellee was born as the child of a Korean Mother A in September 15, 1992, (2) at that time, A was married to B, a Japanese, and therefore, recognition as an embryo before the birth of the child was not possible, (3) on November 4, 1992, A and B divorced by agreement, (4) on December 18, 1992, a conciliation proceeding for the recognition of the absence of a parental relationship between B and the jokoku appellee  was initiated, and on April 27, 1993, the adjudication recognising the absence of this relationship was rendered and came into force on June 2, 1993, (5) on June 14, 1993, a Japanese C, applied for recognition of the jokoku appellee. Under such circumstances, it can be acknowledged that after the birth of the jokoku appellee, the procedure for the recognition of the absence of a parental relationship between B and the jokoku appellee was initiated, and once this was confirmed, C applied for recognition straight away, and therefore, there were special circumstances in an objective way where, had it not been for the presumption of legitimacy based upon registration, Y would have recognised the child as an embryo, and there is no circumstance which indicates otherwise. Thus, it is appropriate to allow the jokoku appellee to lawfully acquire Japanese nationality as a child of a Japanese, C, by virtue of Article 2, subpara.1 of the Law on Nationality.
The ruling of the original instance court which, in conclusion, is the same as the above is justifiable. The arguments criticise the judgment of the original instance court based upon unique views and are unacceptable.
   Thus, in accordance with Article 7 of the Law in Administrative Litigation, Articles 401, 95, and 89 of the Code of Civil Procedure, the justices unanimously rule as the main text of the judgment with the supplementary opinions of Justices ONISHI Katsuya and NEGISHI Shigeharu.

The supplementary opinion of Justice ONISHI Katsuya is as follows:

'If the father is a Japanese national at the time of the birth of the child' as provided by Article 2, subpara.1 of the Law on Nationality generally means that the legal parental relationship between the child and the Japanese father has been formed at the time of the birth of the child, and does not include cases where due to the retrospective effect of recognition after the birth of the child (Art.18, Law on the Application of Laws, Article 784, the Civil Code), the parental relationship at the time of the birth of the child is formed. Therefore, cases where an illegitimate child acquires Japanese nationality by birth are limited to those where the child was recognised by a Japanese father at the embryonic stage, and the parental relationship is formed at the time of the birth. This is found by the both the judgment of the first instance court and the original instance court, and the opinion of the present court presupposes this.
    In the present case, since A and B were married until the birth of the jokoku appellee, it is evident that there was an objective circumstance where even if C applied for recognition as an embryo, the application would not have been accepted. The problem is, in such cases, how should the wording 'at the time of birth' in Article 2, subpara.1 of the Law on Nationality be interpreted.
    Nationality is a qualification as a component of a state. The determination of who should be a national of the state belongs to the exclusive power of the state. Article 10 of the Constitution of Japan provides that 'requirements as to the Japanese national are determined by law'. Thus, the Law on Nationality is a public law which concerns the basis of the existence of the state determining the scope of the components of the state, and thus, it is necessary to avoid extensive or analogical interpretation as much as possible in interpreting this Law. However, on the other hand, the Law on Nationality often presupposes legal relations which are determined by private law such as the law on parents and children. In its interpretation, the effect of such preliminary questions cannot be denied.
    The response of the Director of the Civil Affairs Bureau of the Ministry of Justice No.7608 dated December 18, 1982, which the jokoku appellee refers to, involves a case where in relation to an embryo of a Korean woman who divorced a Korean man, a Japanese man applied for recognition 3 months after the divorce, and since it was before the birth, it was not certain whether the legitimacy would be presumed, and therefore, the application was accepted. The child who was later recognised was born within 300 days of the divorce, but it was ruled that if a judgment recognising the absence of a parental relationship between the former husband of the mother and the child came into effect, the application for the recognition of the embryo is valid, and as a result, Article 2, subpara.1 of the Law on Nationality is applicable and the child acquires Japanese nationality. This response concerns a case where the child, by being born within 300 days of the divorce, came to be presumed legitimate, but later, by the judgment recognising the absence of parental relationship coming into effect, was regarded not to have been presumed legitimate. By coincidence, as a practice of handling the civil status register, the application for the recognition had been accepted and therefore, the application was later found to be valid, while in the present case, it was only that, as a practice of registration, the application for the recognition as an embryo was not to be accepted, and therefore, a valid application was not possible. In both cases, it is the same that the fact that the father was a Japanese national was not lawfully ascertained at the time of the physical birth of the child, and it is inappropriate to treat them differently when interpreting 'at the time of the birth'.
    Naturally, referring to the practice of administration as an immediate basis of the interpretation of law is the wrong way round as argued, and the above response itself may be arguable. However, as mentioned above, the determination of nationality belongs to the exclusive power of the state and the handling of nationality and the civil status which is directly linked to nationality, including the interpretation of the law on these matters, is primarily left to the state administration which has jurisdiction over these matters. Therefore, how the state is handling the matter regarding the interpretation of the acquisition and loss of nationality cannot be ignored. The above response should be taken into consideration as an example where the state, by presenting a certain interpretation, determined nationality based upon its power.
Thus, in the present case where it was not possible to recognise the child as an embryo, but after around 3 months, a legal proceeding for the recognition of the absence of the parental relationship between the mother's husband and the child was initiated and 12 days after the day when the absence of this relationship was established and came into effect and it became possible to apply for recognition, the application for recognition was submitted, it should be construed that Article 2, subpara.1 of the Law on Nationality is applicable, as in the case of the above response. Interpretation that the phrase 'at the time of birth' as above includes a wider range of time than the physical birth may not avoid being criticized for not coinciding with the literal meaning of the law, but the interpretation that both are included in the phrase 'at the time of birth' should be regarded as reasonably representing the unified will of the state.
It should be added that the above interpretation presupposes, as the court opinion states, that the procedure to establish the absence of the relationship between the mother's husband and the child has been initiated 'without delay' after the birth of the child, and once the absence of such a relationship has been established and the application for recognition becomes possible, the application was made 'promptly'. It is not preferable for the nationality of a newly born child to be variable from the viewpoint of the state as well as the child, and it is necessary to determine nationality at the time of the birth or a time close to this point. In this sense, it is better to fix the specific time period for the initiation of the above procedure to establish the absence of the relationship and the application for recognition, and there are some provisions in the Civil Code, the Law on Nationality and the Law on Civil Status which can be taken into consideration. However, in the end, a legislative solution has to be awaited. The present case is within the scope in which the above interpretation is permissible from the viewpoint of preventing the instability of nationality.
 
Justice NEGISHI Shigeharu concurs with the opinion of Justice ONISHI Katsuya.


Presiding Judge, Justice    KAWAI Shinichi
             Justice    ONISHI Katsuya
             Justice    NEGISHI Shigeharu
             Justice    FUKUDA Hiroshi

(*Translated by Sir Ernest Satow Chair of Japanese Law, University of London)