Kagoshima v. State, 1998

Child of Interior woman lost nationality through acknowledgement

By William Wetherall

First posted 18 July 2008
Last updated 21 June 2014


Overview Origins | Ruling | Chronology | Quality of opinions | Quality of translations | Sources, presentation, commentary
Judgment Particulars | Findings | Summary | Relevant laws | Main text


Overview of Kagoshima v. State, 1998

I am arbitrarily assigning the name "Kagoshima" to the unidentified person, apparently a woman, whose nationality was at issue in this case. "Kagoshima" is therefore to be understood as meaning the plaintiff in the original case heard before the Osaka District Court, the appellant in the appeal before the Osaka High Court, and the appellee in the final appeal second the Supreme Court -- the ruling of which is presented here.

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Origins of case

[ The following overviews are my edited translations and paraphrasings of summaries posted by Tanaka Norio (田中則夫), representing the Study Group on Decisions of Japanese Courts relating to International Law (「日本の国際法判例」研究会), which in turn bases its reports on various legal journals. ]

The plaintiff X [Kagoshima] was born in Kagoshima city in May 1948 as a child of Republic of Korea national (韓国人 Kankokujin) father A and Japan national (日本人 Nihonjin) mother B. The following month, A and B together with a notification of marriage, carried out a notification of X's birth.

Osaka District Court marriage notification case

However, in 1989, eleven years after A's death, B raised in the Osaka District Court a claim seeking to confirm that the notification of marriage with A had been made without being based on her own intention, and the same year, [X] received a ruling recognizing the claim. The effect of this decision was to nullify the marriage.

If A and B were viewed as not having married, then X would be an out-of-wedlock child of B. And According to Article 3 of the Old (1899) Nationality Law, which remained in force until 1950, a child will be Japanese (日本人) "when in the event the father is not known and the mother is Japanese" -- and hence it would appear that X should have been registered in her mother's Naichi register and thereby acquired Japan[ese] nationality (日本国籍).

However, in the event that the notification of X's birth is viewed as having had the effect of her father (A) acknowledging (認知) paternity, then as a matter of course, in accordance with applicable laws, including the Chosen Family [Household] Register Order (朝鮮戸籍令), X would have been recorded in her father's Chosen household register (朝鮮戸籍) on account of his acknowledgement.

And because concomitant with the effectuation of the San Francisco Peace Treaty everyone in Chosen registers lost their Japaneses nationality, not only the father (A) but also anyone else in his register, including X, would have lost Japanese nationality.

Osaka District Court nationality confirmation case

At this point X, believing that if the notification of marriage was invalid then the notification of birth should also be regarded as invalid, filed a lawsuit in the Osaka District Court, against the state, seeking confirmation of possession of Japanese nationality.

X alleged that it was unclear who carried out the birth notification, but because a ruling confirming the invalidity of AB's marriage had been finalized in 1989, it had been determined that X had been born as an out-of-wedlock-child of B, hence on the basis of Article 3 of the Old Nationality Law X has acquired Japan nationality.

The court, however, held that A [the father] had effected notification of the birth in the case. And because the same notification has the effect of paternal acknowledgement, the court dismissed (棄却) X's claim, citing Article 3, paragraph 1 of the Common Law (see below), which required that X be removed from B's [the mother's] Interior household register (内地戸籍) and entered into A's [the father's] Chosen household register (朝鮮戸籍). X therefore acquired the legal status of a Chosenese (朝鮮人), and hence lost Japanese nationality concomitant with effectuation of the Peace Treaty.

Osaka High Court

X filed an appeal with the Osaka High Court, which agreed with the plaintiff's claim, and so quashed (rescinded (取り消し) or quashed (破棄) the lower court's ruling.

Supreme Court

The state (now as the plaintiff) then appealed to the Supreme Court, which also quashed the district court's ruling, dismissed (棄却) the plaintiff's appeal to the high court, and handed down it's own judgment against the X (now the defendant).

The Supreme Court's reasoning will be clarified in the following presentation of its ruling.

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Ruling in case

The ruling of a Petit Bench of the Supreme Court confirmed that Kagoshima did not have the nationality of Japan.

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Chronology of case

Chronology of events leading up to Kagoshima v. State, 1998

5 May 1948

X [Kagoshima] was born in the city of Kagoshima to an Interiorite mother B and a Chosenese father A. A and B had not yet married.

17 June 1948

A and B filed both a notification of marriage and a notification of X's birth. As a consequence of both notifications being accepted, registrars moved B from her Interior register to A's Chosen register, and naturally X was also registered in A's Chosen register as their legitimate child.

28 April 1952

All Chosenese (people in Chosen registers) lost their Japanese nationality. Accordingly, A, B, and X became aliens of Chosenese status -- a legacy affiliation with an entity that no longer existed -- except as a territory which Japan had forfeited to a successor state that had not yet been named in any treaty.

1978

X's father A died.

September 1989

X's mother B filed a lawsuit in the Osaka District Court, against the public prosecutor, claiming that the notification of marriage had been filed and against her will.

1 December 1989

The court recognized B's claim and ordered the marriage nullified.

19 December 1989

The court's decision is finalized and the marriage is thereby nullified. Presumably B was reinstated to a prefectural family register and thereby, again, became Japanese.

1991

As her mother's marriage had been nullified, X view herself as having been born out of wedlock. The notification of birth, however, had not been nullified, hence X remained an alien of ROK nationality, since her father had registered as a national of the Republic of Korea.

Believing she should be Japanese, X filed a nationality confirmation suit against the state with the Osaka District Court, in which she claimed that, since her mother's marriage had been nullified, and because it was unclear who had filed the notification of birth, she should be in her mother's register and therefore be Japanese.

31 March 1993

The Osaka District Court rejected X's claim, ruling that, under the laws in operation in 1948, including the 1899 Nationality Law and 1918 Common Law (see below), she was legally registered in her father's Chosen register, and therefore she lost Japanese nationality in 1952.

1993

X appealed the Osaka District Court decision to the Osaka High Court.

25 February 1994

The Osaka High Court reversed the lower court's decision, finding that X should have been registered in her mother's Naichi register, and hence is Japanese.

1994

The state appeals the Osaka High Court ruling to the Supreme Court. At this point, the state is the plaintiff and X is the defendant.

12 March 1998

The Supreme Court quashes the Osaka District Court's ruling against X [the plaintiff], dismissed X's appeal to the Osaka High Court, and handed down its own ruling to the effect that X did not, according to the law, possess Japanese nationality.

Common Law   The 1918 Common Law (共通法) determined whether Naichi, Chosen, or Taiwan laws applied in legal matters involving persons of different territorial status within Japan. It also stipulated rules for migration between registers affiliated with Japan's different territories.

As a "law of laws" within the sovereign empire, the Common Law particularly affected private law actions such a marriage, acknowledgement, and adoption between individuals affiliated with Japan's different territories. Such actions resulted in migrations between registers -- in this case, from a Naichi to a Chosen register.

Paragraph 1 of Article 3 states that "A person who on account of [pursuant to] the laws of a territory enters a [corporate] family of that territory will leave the [corporate] family of another territory" (my translation).

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Quality of opinions

The tardiness of the mother's claim, over a decade after the father's death, that the father had filed the marriage notification against her will, and the fact that four decades had lapsed since the notification was filed, did not serve her purpose well.

Apparently the lawsuit concerning the marriage notification did not also also the court to rule whether the notification of birth had also been filed against the mother's will (though I have not confirmed this point). This, too, seems to have weakened daughter's (X's, Kagoshima's) case against the state.

The Osaka High Court overturned the lower court's ruling on the grounds that, while it was legally plausible in terms of the laws in effect in 1948, the 1947 Constitution had already come into force, and effective from 1 January 1948 both the revised Civil Code and the revised Family Registration Law had also come into effect.

The court held that provisions in older laws, which gave males superior rights in corporate families, as by mandating that a paternally recognized child be registered in the father's register, contravened the letter and spirit of postwar family law, which recognized the integrity of the individual and gender equality.

The Supreme Court, however, successfully argued that, notwithstanding postwar changes in social standards in Japan, in the spring of 1948 Japan's domestic laws still recognized the applicability of Chosen customary laws regarding family matters. The ruling deserves to be read as a classic example of how closely the Supreme Court, especially, is likely to hold to a strict course of law, without deviation.

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Quality of translations

Like most received English versions of court decisions in Japan, this one captures the general drift of the decision but misrepresents some of the key terms and phrases as metaphors in Japanese law.

Chosenese and Interiorites

The received translation immediately gets off on the wrong foot by translating 朝鮮人 and 内地人 as "Korean" and "native Japanese" instead of as "Chosenese" and "Interiorite". The applicable laws referred to "Chosen" and "Naichi" as entities of Japan. Both Chosenese and Naichijin were at the time Japanese. The "nativity" of neither parent could have been an issue in the court, as status was a matter of registration affiliation, not where one might have been born.

Republic of Korea and Chosen

The ruling also states that the appellee was at the time registered as an alien of "Korean" nationality -- when, in fact, the Japanese ruling says her nationality was 韓国 meaning "Republic of Korea". The ruling later refers to 韓国朝鮮 -- meaning "Republic of Korea / Chosen".

The latter usage probably reflects the court's awareness of two important facts. (1) In the 1965 normalization treaty between Japan and ROK, Japan recognized the ROK as the only legitimate government on the peninsula of Chosen -- meaning that Japan viewed ROK as the successor state to the former Japanese entity of Chosen. (2) Alien registration status include both 韓国 meaning ROK, and 朝鮮 meaning the legacy (now-defunct) entity of Chosen.

The clarity of usage in the Japanese ruling reflects the fact that Japanese courts continue to struggle with legacy laws that apply in cases like Kanda, Saitama, and Kagoshima. This does not mean that courts are flawless regarding their use of appropriate terms. Generally, though, they attempt to make careful distinctions, as it is their business to accurately reflect applicable laws as they are written.

These are not moot issues, as at the time Kagoshima was registered in her father's Chosen register, with her mother, they could only have been Chosenese -- since neither the Republic of Korea nor the Democratic People's Republic of Korea were founded until the fall of 1948. Presumably Kagoshima's father at some time migrated to ROK nationality, hence Kagoshima's ROK status at the time she went to court.

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Sources, presentation, and commentary


Sources


Received Japanese text of ruling

The Japanese text was extracted from a pdf file downloaded from the database accessible through the Japanese government's 裁判所 Courts in Japan website. Most case particulars and a summary were retrieved by a query using minimum case particulars. These particulars and the summary are also shown.

Received English translation

The English version was extracted from an html file retrieved by a query in the English section of the same Courts in Japan website. A disclaimer at the bottom of the translation, which is attributed to the "Judicial Research Foundation", reads "This translation is provisional and subject to revision."

Structural English translation

Because parts of the received translation do not accurately reflect the finer details and texture of the language of the Japanese ruling, I have occasionally shown structural translations of parts that are of special interest to me.

Formatting, commentary, and markup

I have divided the judgment into sections, and have somewhat reformatted the received texts and highlighted some words and phrases to facilitate analysis and commentary.

Underscoring

All underscoring in the text of the judgment is as received. Unless otherwise noted, the underscoring of corresponding parts of the received translation is mine. All underscoring in my own commentary is, of course, also mine.

Parentheses

Unless otherwise noted, all (parentheses) in the received text and translation are as received.

Square and angle brackets

All in-line [square brackets] and <angle brackets> -- and everything enclosed in such brackets -- are mine.

Structural translations and commentary

My own closer (structural) translations are generally shown in blue in cells below the received judgment and received translation. At times I have shown closer translations of words or short phrases in-line, between right and left → arrows ← following the amended text.

Editorial [clarifications] are shown in-line. Brief comments are sometimes boxed in the cells of the texts they relate to. Extended comments are generally shown in cells below the relevant texts.

Color highlighting

The received texts of the judgment and translation, and my own commentary, are shown in black. However, to facilitate commentary on the language of the ruling and/or its translation, I have highlighted specific words and phrases in various colors according to the following scheme, which includes in-line editorial clarifications and corrections.

Color Original Translation
Background highlighting
Blue Corresponding parts of two or more texts selected for comparison
Yellow Content added to received text to reconstruct a missing part
Pink Transcription or scanning errors parenthetically corrected in-line (sic = in-line)
Graphic highlighting
Blue [ Clarification ] (in-line) [ Clarification ] (in-line)
→ My closer translation ← (in-line)
My closer translation (boxed)
Green Presumed true and correct copy of the language of the original text May be too free and a bit off key but represents all elements or original
国籍法


韓国
Nationality Law
Nationality Act (unconventional)
Law / Act of Nationality (unconventional)
Korea (if "Empire of Korea" 1897-1910)
Purple Problematic phrasing or usage in the language of the original text Imprecise or awkward, incomplete or embellished, or otherwise inadequate
国籍
韓国
朝鮮
内地
Citizenship → Nationality (as legal status)
Korea → Republic of Korea (since 1948)
Korea → Chōsen (as territory 1910-1952)
Japan Proper → Interior (as territory)
Red Incorrect phrasing or usage ※ Misleading or incorrect
放棄する
離脱する
朝鮮
renounce → abandon, relinquish
renounce, separate from
Korea → Chōsen (as territory)
Cyan ※ When original is incorrect Mistranslation is more correct than original
日本と朝鮮との併合
the annexation of Korea by Japan
→ the union of Japan and Chōsen

※   The example of incorrect 朝鮮 (Chōsen) being mistranslated Korea (韓国 Kankoku), thus "accidentally" correcting the usage in the judgement, can be seen in Kanda v. State 1961.

1. While 朝鮮 (Chōsen) in the judgment is factually incorrect, the correct translation is "Chōsen" because that is what the original text says. Because the translators conflate "Chōsen" (朝鮮) with "Korea" (韓国 Kankoku), they habitually translate "Chōsen" as "Korea" -- which constitutes a "mistranslation" that in effect accidentally "corrects" the factual error in the original -- i.e., a double negative becomes a positive. But two wrongs don't make a right. Translators are not supposed to "edit" the content of legal briefs. They might flag a problematic expression for comment in a footnote, but the translation itself should be faithful to the original.

2. Note that where the judgment precisely paraphrases the phrasal logic of the expression "Nik-Kan heigō" (日韓併合) [Japan-Korea union] as "X to Y to no heigō" (XとYとの併合) [the union between X and Y], the received translation incorrectly represents the syntactic logic of the paraphrase as "the annexation of Y by X" -- which constitutes an interpretation of the effects of the union, not its formal description in Japanese law -- which I underscore, because the court is making a legal, not political, argument. Historiographic "opinion" external to received text of the original judgment, and its attempt to deal with the letter and operation of Japanese law is irrelevant. A translator might say that the past is past. Treaties, laws, and ordinances of the past -- though no longer enforced -- may continue to have effect in court reviews of what I call "legacy" cases, which involve status actions in the past.

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2004 Supreme Court judgment in Saitama v. State
Japanese text, English version, and commentary

Osaka District Court

原審裁判所名:大阪地方裁判所

原審事件番号:平成3(行ウ)55

原審裁判年月日:平成5年03月31日

原審判決:棄却

Court of original instance: Osaka District Court

Original instance case number: Heisei 3 [1991] (Gyo-U) 55

Date of original decision: 31 March 1993 [Heisei 05-03-31]

Ruling: Dismissed [lost nationality]

Osaka High Court

二審裁判所名:大阪高等裁判所

二審事件番号:平成5(行コ)24

二審裁判年月日:平成6年02月25日

二審判決:破棄

Court of first appeal: Osaka High Court et cetera

First appeal case number: Heisei 5 [1993] (Gyo-Ko) 24

Date of first appeal decision: 25 February 1994 [Heisei 6-02-25]

Ruling: Reversed original decision [did not lose nationality]

Supreme Court

事件番号:平成6(行ツ)109

事件名:国籍確認請求事件

裁判年月日:平成10年03月12日

法廷名:最高裁判所第一小法廷

裁判種別:判決

結果:破棄自判

判例集巻・号・頁:第52巻2号342頁

Case number: Heisei 6 [1994] (Gyo-Tsu) 109

Case name: Nationality confirmation request case

Date of judgment: 12 March 1998 [Heisei 10-03-12]

Court name: Supreme Court, First Petit Bench

Type of judgment: Ruling

Results: Quashed original ruling, dismissed appeal, and issued own judgment [lost nationality]

Hanreishū [Court Reports] Volume, Number, Page:
Volume 52, Number 2, Page 342

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判示事項 Matters addressed in ruling
内地人女性の嫡出でない子であって国籍法の施行後に朝鮮人男性により認知されたものの平和条約発効後の国籍。

Judgment concerning whether a child who was born, out of wedlock, to a native Japanese mother and a Korean father and was recognized by the father after the enforcement of the Nationality Law loses Japanese nationality after the effectuation of the Peace Treaty

Structural translation

Nationality after peace treaty effectuation of a person who is a child who is not an issue of wedlock of an Interiorite woman and was acknowledged by a Chosenese man after the enforcement of the Nationality Law.

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裁判要旨 Summary of the judgment
Received Japanese text Received English translation

内地人女子の嫡出でない子であって昭和二三年六月に朝鮮人男子により認知されたものにつき、朝鮮民事令一条、一一条により子は父の家に入る旨の朝鮮慣習の適用があり、共通法三条一項所定の者に当たるとすることは、同法二条二項において準用する法例(平成元年法律第二七号による改正前のもの)三〇条にいう「公ノ秩序又ハ善良ノ風俗」に反するものとはいえない。

二 内地人女子の嫡出でない子であって昭和二三年六月に朝鮮人男子により認知されたものは、平和条約の発効とともに日本国籍を失う。

1. It is not against "public order or good morals" set forth in Article 30 of the Law Concerning Application of Laws in General (before amendment by Law No. 27 of 1989), which applies mutatis mutandis under Article 2(2) of the Common Law, to regard a child who was born, out of wedlock, to a native Japanese mother and was acknowledged by a Korean father in June 1948, as falling under the category of the person prescribed in Article 3(1) of the Common Law, by applying, in accordance with Articles 1 and 11 of the Decree on Civil Affairs in Korea, Korean custom that a child shall enter a family of the child's father.

2. A child who was born, out of wedlock, to a native Japanese mother and was acknowledged by a Korean father in June 1948, has lost Japanese nationality upon the effectuation of the Peace Treaty.

Structural translation

1. With regard to one who is a child who is not a wedlock issue of an Interiorite woman, and who was recognized by a Chosenese man in June 1948 -- there is application of Chosen customs [practices] of purport [which purport that] [according to which] in accordance with Article 1 and Article 11 of the Chosen Civil Matters Decree [such a] child will enter the house of the father -- and applying [this] to persons stipulated in Article 3, Paragraph 1 of the Common Law [Imperial Ordinance No. 144 of 1918] -- cannot be said to be contrary to the "order of the public and/or [to] manners [customs, practices] of goodness" referred to in Article 30 of the Rules of Laws [Law No. 10 of 21 June 1898] ([version] before amendment by Law No. 27 of 1988) which applies correspondingly [mutatis mutandis] to Article 2, Paragraph 2 of the same [1918 Common Law].

2. As for one who is a child who is not a wedlock issue of an Interiorite woman and who was recognized by a Chosenese man in June 1948 -- [such a person] will lose the nationality of Japan with effectuation of the Peace Treaty.

Key terms misrendered in received English translation

The highlighted phrases are among several that are incorrectly or misleadingly rendered in the received English translation.

Interiorite

Under Japanese law as it applied at the time of the origin of this case, and in legacy application still today, as in this Supreme Court judgment, "Interior" (内地 Naichi) refers to the prefectures as an legal entity, while "Interiorite" (内地人 Naichijin) refers to a person whose family register is affiliated with a prefectural municipality. "Interiorite" is thus a legal status based on territorial affiliation -- not a matter of whether one is a "native" to that territory.

Chosenese

Similarly, "Chosen" (朝鮮 Chōsen) and "Chosenese" (朝鮮人 Chōsenjin) respectively refer to (1) a territory that was part of Japan's sovereign dominion from 1910-1945 de jure and de fact and until 1952 de jure, and (2) persons whose registers were affiliated that territory. When joined by treaty to Japan in 1910, Korea was renamed Chosen, and Koreans became Chosenese -- under contemporary Japanese law, which still applies in legacy cases.

Japanese

Even in 1948, when paternal acknowledgement took place, the Chosenese man was a national of Japan and therefore Japanese. He may not have been regarded as "Japanese" under certain GHQ/SCAP definitions that pertained mostly to border control and registration within Occupied Japan. Yet even GHQ/SCAP recognized that Chosenese and Taiwanese -- especially those that had been in the prefectures when the war ended and had remained there -- would continue to be legally Japanese until treaties provided otherwise.

The whole purpose of this judgment -- which is clear from the second paragraph in the above summary -- is to underscore the fact that Chosenese in the prefectures, including those who like the child in this case had become a member of a Chosen register, lost their Japanese nationality when the San Francisco Peace Treaty came into force on 28 April 1952.

Rules of Laws

What the translation calls the "Law Concerning Application of Laws in General" (法の適用に関する通則法) did not replace the "Rules of Laws" (法例 Hōrei) until 2006 (Law No. 78).

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参照法条 Relevant laws
Received Japanese text Received English translation

共通法2条2項,共通法3条,朝鮮民事令1条,朝鮮民事令11条,法例(平成元年法律27号による改正前のもの)30条,憲法10条,日本国との平和条約2条(a)項

(Concerning 1) Articles 2(2) and 3 of the Common Law, Articles 1 and 11 of the Decree on Civil Affairs in Korea, and Article 30 of the Law Concerning Application of Laws in General (before amendment by Law No. 27 of 1989) Article 2(2) of the Common Law Except for cases prescribed in the preceding paragraph, the Law Concerning Application of Laws in General shall apply mutatis mutandis to civil affairs; in this case, laws and regulations applicable in the region to which either party concerned belongs shall be regarded as national laws of the region. 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 1 of the Decree on Civil Affairs in Korea Unless otherwise provided in this decree or other laws or regulations, civil affairs shall be governed by the following laws: (1) Civil Code; (2) Law No. 50 of 1902 (regarding the calculation of age); (3) Law No. 17 of 1904 (regarding the establishment of a pledge on inscribed government bonds); (3)-2 Law No. 42 of 1933; (4) Law No. 40 of 1899 (regarding liability for accidental fire); (5) Law No. 51 of 1900 (regarding guardianship for an orphan child in an asylum); (6) Law No. 13 of 1900 (regarding confirmation of testaments of military or civilian personnel serving for the military); (7) Civil Code Enforcement Law; (7)-2 Trust Law; (8) Commercial Code; (8)-2 Bills and Notes Law; (8)-3 Checks Law; (8)-4 Limited Liability Company Law; (9) Law No. 17 of 1900 (regarding cases in which signature is required under the Commercial Code); (10) Commercial Code Enforcement Law; (10)-2 Law for the Enforcement of Amendments in the Commercial Code; (11) Bankruptcy Law; (12) Composition Law; (13) Code of Civil Procedure; (13)-2 Law for the Enforcement of Amendments in the Code of Civil Procedure; (14) Law for Judicial Assistance; (14)-2 Law for Assistance for Judicial Affairs between Japan and Manchuria; (15) Law No. 50 of 1899 (regarding foreign nationals' signatures and seals and certificates of lack of funds); (16) (Deleted) (17) Law of Procedure in Actions Relating to Personal Status; (18) Law of Procedure in Non-Contentious Cases; (19) Law Concerning the Cost of Civil Procedure; (19)-2 Law Concerning Revenue Stamps for Civil Procedure; (20) Law Concerning Revenue Stamps for Non-Contentious Commercial Cases; (21) Rules Concerning Fees for Catchpoles; (22) Auction Law; (23) Law No. 67 of 1899; (Titles in parentheses are indicated for reference). Article 11 of the Decree on Civil Affairs in Korea 1. Unless otherwise provided, notwithstanding the laws set forth in Article 1, matters concerning relatives and inheritance of Korean people shall be governed by Korean custom; however, this shall not apply to family name, marriage age, judicial divorce, acknowledgement, judicial dissolution of adoptive relationship, annulment of adoption or marriage in cases where a marriage or adoption in which the husband is adopted by the wife's family is null or annulled, parental power, guardianship, curator, family conference, acceptance of succession, and separation of property. 2. The establishment of a collateral family, re-establishment of a discontinued family, marriage, divorce by agreement, adoption, and dissolution of adoptive relationship by agreement shall not be effective unless it is reported to the governor or mayor; however, adoption by testament shall be deemed to have been reported at the time when the adoptive parent died and shall be effective retrospectively from that time. 3. The name of a family shall be determined by the head of the family or legal representative thereof. Article 30 of the Law Concerning Application of Laws in General (before amendment by Law No. 27 of 1989) In case where a foreign law is to govern, it shall not be applied if the provisions thereof are against public order or good morals. (Concerning 2) Article 10 of the Constitution 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 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.

Articles cited in above references

The list of references shown on the Courts in Japan website appeared to be incomplete. The purple part of the list is a restoration based on the list in the received English translation. As the listed provisions were not included in the received Japanese judgment, I have provided them from other sources.

憲法10条

日本国民たる要件は、法律でこれを定める。

Article 10 of the Constitution

The conditions necessary for being a Japanese national shall be determined by law.

The received translation is that of the standard English version of the 1947 Constitution.

Structural translation

As for the conditions to be a national of Japan, [the state shall] determine these by law.

日本国民 is better represented by "Japan national" or "national of Japan". Japanese texts differentiate 日本国民 ("Japan national") and 日本の国民 ("national of Japan") -- but the latter essentially defines the former, hence "national of Japan" can be used for "Japan national" in most contexts. Rendering 日本 as "Japanese" when used attributively is a problem especially in contexts where "Japanese" could be taken to mean 日本人. It is a problem here because the 1899 Nationality Law uses 日本人 where the 1950 Nationality Law uses 日本国民. Neither the 1890 nor 1947 constitutions use 日本人.

The same may be said for 日本国籍 ("Japan nationality") and 日本の国籍 ("nationality of Japan"). These terms are metaphors of state and nationality, not of persons who may be nationals.

法律 is broadly any law, act, code, statute, treaty, or other legal measure approved by the National Diet.

共通法(大正7年法律第39号)3条

一ノ地域ノ法令ニ依リ其ノ地域ノ家ニ入ル者ハ他ノ地域ノ家ヲ去ル

2   一ノ地域ノ法令ニ依リ家ヲ去ルコトヲ得サル者ハ他ノ地ノ家ニ入ルコトヲ得ス

Article 3 of the Common Law (Law No. 39 of 1918)

[1.] 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.

Structural translation

[1.] A person who on account of [pursuant to] the laws of a territory enters a [corporate] family of that territory will leave the [corporate] family of another territory.

2. A person who on account of the laws of a territory is unable to leave a [corporate] family [of that territory] will not be able to enter a [corporate] family of another territory.

Article 3 of the Common Law (Law No. 39 of 1918) was instrumental in facilitating register migration (my term) between territorial registers in cases of marriage and adoption alliances between subjects of different territories. Exceptionally, Article 3 did not come into force until 1921.

For further details about the origin and application of the Common Law, including the Japanese text and my translations of relevant parts, see 1918 Common Law.

旧国籍法(昭和25年法律第147号による廃止前のもの)23条

日本人タル子力認知ニ因リテ外国ノ国籍ヲ取得シタルトキハ日本ノ国籍ヲ失フ但日本人ノ妻、入夫又ハ養子ト為リタル者ハ此限ニ在ラス

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.

1929 received translation

If a child who is a Japanese acquires foreign nationality by acknowledgment, he or she loses Japanese nationality. But his rule does not apply to a person who has become the wife, the nyufu, or the adopted child of a Japanese.

Structural translation

When a child who is Japanese has acquired the nationality of a foreign country due to [become of] recognition [the child] will lose the nationality of Japan. However, as for one [such a person] who has become the wife, the incoming husband, or an adopted child of a Japanese this will not apply. [ == Provided, however, that this will not apply when one [such a person] has become the wife, incoming husband, or an adopted child of a Japanese.]

国籍法(昭和59年法律第45号による改正前のもの)8条

日本国民は、自己の志望によつて外国の国籍を取得したときは、日本の国籍を失う。

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.

1950 standard translation

A Japanese national shall lose his or her Japanese nationality when he or she acquires a foreign nationality at his or her own wish.

Structural translation

A Japan national, when having acquired the nationality of a foreign country due to [because of] one's own volition, will lose the nationality of Japan.

国籍法(昭和59年法律第45号による改正前のもの)9条

外国で生まれたことによつてその国の国籍を取得した日本国民は、戸籍法(昭和二十二年法律第二百二十四号)の定めるところにより日本の国籍を留保する意思を表示しなければ、その出生の時にさかのぼつて日本の国籍を失う。

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).

1950 standard translation

A Japanese national who has acquired a foreign nationality by reason of his or her birth in the foreign country shall lose Japanese nationality retroactively as from the time of birth, unless the Japanese national manifests his or her volition to reserve his or her Japanese nationality according to the provisions of the Family Registration Law (Law No. 224 of 1947).

Structural translation

A Japan national who due to [because of] having been born in a foreign country has acquired the nationality of that country, due to [pursuant to] determinations of the Family Registration Law (Law No. 224 of 1947) will lose the nationality of Japan retroactive to the time of [the person's] birth, if [the person] has not indicated a wish to reserve the nationality of Japan.

国籍法(昭和27年法律第268号によ改正前のもの)10条

[第十条]  外国の国籍を有する日本国民は、日本の国籍を離脱することができる。

2   国籍を離脱するには、法務総裁 法務大臣に届け出なければならない。

3   国籍を離脱した者は、日本の国籍を失う。

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.

1950 standard translation

[Article 10]  A Japanese national having a foreign nationality may renounce his or her Japanese nationality.

2. The renunciation of nationality shall be made by notifying to the Attorney-General.

3. One who has renounced his or her nationality shall lose Japanese nationality.

Structural translation

[Article 10]  A Japan national who possesses the nationality of a foreign country, will be able to renounce the nationality of Japan.

2. To renounce nationality, [the person] must notify the Attorney-General.

3. One who has renounced nationality, will lose the nationality of Japan.

日本国との平和条約2条(a)項

日本国は,朝鮮の独立を承認して,済州島,巨文島及び欝陵島 [= 鬱陵島] を含む朝鮮に対するすべての権利,権原及び請求権を放棄する。

Article 2 paragraph (a) of the Peace Treaty with Japan

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

Official English version

(a) Japan, recognizing the independence of Korea, renounces all right, title, and claim to Korea, including the islands of Quelpart, Port Hamilton and Dagelet.

Structural translation of Japanese version

(a) Japan, recognizing the independence of Chosen, abandons all rights, titles and demand rights [right to make demands, claims] toward Chosen including the Saishū islands [K. Cheju-do] , Kyūbun islands [K. Kŏmun-do, aka E. Port Hamilton] and Utsuryō islands [K. Ullŭng-do, aka F. Dagelet].

Note that the Japanese version clearly and consistently refers to the entity being ceded away from Japan as 朝鮮 (Chōsen) or Chosen, not "Korea". Even today, Japan refers to the entity that became part of Japan in 1910, and remained part of Japan until 1952, as Chosen, and to its affiliates as 朝鮮人 (Chōsenjin) or Chosenese.

In Japanese law, the "Korea" in the English version of the treaty refers to "Chosen" as the entity Japan is in effect ceding to an unnamed state -- which is neither the "Korea" of the defunct "Empire of Korea" (韓国), nor the "Korea" of either the "Republic of Korea" (韓国) or the "Democratic People's Republic of Korea" (朝鮮 Chosŏn) -- all of which are different entities. A proper understanding in English of Japanese laws and court decisions is possible only if their English versions clearly reflect entity distinctions made in Japanese.

Top  

主文 Main text of the judgment
Received Japanese text Received English translation

原判決を破棄する。
被上告人の控訴を棄却する。
控訴費用及び上告費用は被上告人の負担とする。

The judgment of the second instance shall be quashed.
The koso appeal filed by the jokoku appellee shall be dismissed.
The jokoku appellee shall bear the whole costs of the koso appeal and the jokoku appeal.

理由 Reasons

上告代理人増井和男、同鈴木健太、同河村吉晃、同佐村浩之、同喜多剛久、同赤西芳文、同本多重夫、同山田敏雄、同大下勝弘、同奥田仁、同松原住男の上告理由について

Concerning the grounds for the jokoku appeal argued by the attorneys for jokoku appellant MASUI Kazuo, SUZUKI Kenta, KAWAMURA Yoshiaki, SAMURA Hiroyuki, KITA Takehisa, AKANISHI Yoshifumi, HONDA Shigeo, YAMADA Toshio, OSHITA Katsuhiro, OKUDA Hitoshi, and MATSUBARA Sumio

一 原審の適法に確定した事実関係及びこれに適用される法令等の概要は、次のとおりである。

1 被上告人は、昭和二三年五月五日に朝鮮人男性Aを父とし、内地人女性Bを母として出生し、同年六月一七日にその旨の出生届が右両名の婚姻届とともに提出された。右出生届は、Aによってされたものであり、認知届としての効力が認められる(以下、右出生届による認知を「本件認知」という。)。

2 現在、被上告人については、国籍を韓国とする外国人登録がされている。

3 Bは、平成元年九月、検察官を被告として、Aとの婚姻の無効確認訴訟を提起し、同年一二月一日、右婚姻は無効であることを確認する旨の判決が言い渡され、同月一九日に確定した。

4 韓国併一九日に確定した。
(sic = extraneous text)

4 韓国(sic = 韓国朝鮮)、台湾等の異法地域に属する者の間で身分行為があった場合、その準拠法は、共通法(大正七年法律第三九号)二条二項によって準用される法例(平成元年法律第二七号による改正前のもの。以下同じ。)の規定によって決定されることとなり、朝鮮人父が内地人母の子を認知した場合の認知の効力については、認知者である父の属する地域である朝鮮の法令が適用されることとされていた。そして、大正二年制令第一三号による改正後の朝鮮民事令(明治四五年制令第七号)一条、一一条によれば、旧民法(昭和二二年法律第二二二号による改正前のもの。右改正後のものを「新民法」という。)八二七条二項の適用を受け、子は、朝鮮人父の認知により、その庶子となるものとされていた。

5 共通法三条一項は、「一ノ地域ノ法令ニ依リ其ノ地域ノ家ニ入ル者ハ他ノ地域ノ家ヲ去ル」とし、同条二項は、「一ノ地域ノ法令ニ依リ家ヲ去ルコトヲ得サル者ハ他ノ地域ノ家ニ入ルコトヲ得ス」としており、異法地域に属する者の間で身分行為があった場合、一の地域の法令上入家という家族法上の効果が発生するときには、他の地域においても原則としてその効果を承認して去家の原因とすることを定めていた。その結果、戸籍に関しても、一の地域の戸籍から他の地域の戸籍への移動という効果を生ずることとされていた。そして、朝鮮人の親族相続に関しては、朝鮮民事令一一条により、前記認知に関する規定のように別段の規定があるものを除き、朝鮮慣習が適用されることとされており、朝鮮慣習によれば、朝鮮人父の認知により庶子となった子は、戸主の同意を要することなく、当然に朝鮮人父の家に入ることとされていた。

6 本件認知のあった昭和二三年六月一七日当時、共通法も朝鮮民事令も有効に存在しており、朝鮮民事令一条にいう民法とは、なお旧民法を指すものと解されるから、内地人母の子は、朝鮮人父の認知により、その庶子となり、戸主の同意を要することなく、当然に朝鮮人父の家に入る(父の戸籍に入籍する)こととなる。

7 昭和二七年四月二八日の日本国との平和条約(以下「平和条約」という。)の発効により、我が国が、朝鮮の独立を承認して、朝鮮に属すべき領土に対する主権を放棄したことに伴い、それまで日本の国内法上で朝鮮人としての法的地位を有していた人すなわち朝鮮戸籍令の適用を受け朝鮮戸籍に登載されるべき地位にあった人は、元来日本人で朝鮮人との身分行為によって朝鮮戸籍に入籍すべき事由の生じた人を含め、朝鮮国籍を取得し、日本国籍を喪失したものと解されている(最高裁昭和三〇年(オ)第八九〇号同三六年四月五日大法廷判決・民集一五巻四号六五七頁、最高裁昭和三三年(あ)第二一〇九号同三七年一二月五日大法廷判決・刑集一六巻一二号一六六一頁、最高裁昭和三八年(オ)第一三四三号同四〇年六月四日第二小法廷判決・民集一九巻四号八九八頁参照)。

I. The outlines of the facts legally determined by the judgment of the second instance and of applicable laws and regulations are as follows.

1. The jokoku appellee was born, on May 5, 1948, to a Korean (sic = Chosenese)) father, A, and a native Japanese (sic = Interiorite) mother, B. On June 17, her birth notification was filed with the marriage notification of her parents. The birth notification was filed by A and therefore it is regarded as being effective as an acknowledgement notification (the acknowledgment by the birth notification shall hereinafter be referred to as the "Acknowledgement").

2. At present, the jokoku appellee is registered as an alien with Korean (sic = Republic of Korea) nationality.

3. In September 1989, B filed a suit against the public prosecutor to seek declaration of nullity of her marriage to A. A court decision to declare nullity of the marriage was handed down on December 1, 1989, and the decision became final and conclusive on December 19.

4. In the past, where an act relating to the status of a person was conducted between people who belonged to regions where different laws were applicable such as Korea (sic = Republic of Korea / Chosen)] 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; hereinafter the same), which applied mutatis mutandis under Article 2(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(2) of the Old Civil Code (before amendment by Law No. 222 of 1947; the amended Civil Code shall be referred to as the "new Civil Code") 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.

5. Article 3(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 belonged 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. Article 11 of the Decree on Civil Affairs in Korea 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 Korean 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.

6. At the time of the Acknowledgement, i.e. June 17, 1948, the Common Law and the Decree on Civil Affairs in Korea were effective. As the Civil Code set forth in Article 1 of the Decree on Civil Affairs in Korea is construed to have referred to Article 1 of the old Civil Code, a child who was born to a native Japanese mother and a Korean father should become the Korean father's illegitimate child by his acknowledgment and should necessarily enter the father's family (family register) without the consent of the head of the family.

7. 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 Chosen Family [Household] Register Decree 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).

二 被上告人は、前記一3記載の婚姻無効の判決の確定により、被上告人は日本人である母の非嫡出子として出生したことになるから、出生の時点において、旧国籍法(昭和二五年法律第一四五号による廃止前のもの)三条にいう「父カ知レサル場合又ハ国籍ヲ有セサル場合ニ於テ母カ日本人ナルトキ」に当たり、日本国籍を取得したものであり、前記出生届に認知の効力があるとしても、それにより日本国籍を失うことはないなどと主張し、上告人を被告として日本国籍の確認を求め、これに対し、上告人は、前記出生届は認知の効力を有するから、被上告人は、朝鮮戸籍に登載されるべきこととなった者であり、平和条約の発効に伴って日本国籍を喪失したと主張している。

II. The jokoku appellee argues as follows: following the court decision to declare nullity of the marriage that became final and conclusive as mentioned in I-3 above, the jokoku appellee is deemed to have been born as an illegitimate child of a Japanese mother, and therefore, the jokoku appellee acquired Japanese nationality at the time of birth on the ground of falling under the case "where the father is unknown or does not have nationality, and the mother is a Japanese national" as provided in Article 3 of the old Nationality Law (before abolishment by Law No. 147 of 1950); the jokoku appellee shall not lose Japanese nationality due to the birth notification even if it is effective as an acknowledgment notification. On the other hand, the jokoku appellant argues that the birth notification is effective as an acknowledgment notification, and therefore the jokoku appellee came to have a reason to be entered into a Korean family register and lost Japanese nationality upon the effectuation of the Peace Treaty.

三 第一審は、本件認知当時の朝鮮の法令では、朝鮮人父がその子を認知した場合、直ちに子は父の家に入籍するという慣習法が存在したから、共通法三条一項の要件が満たされ、他方、当時の内地の法令においては、子は認知により当然に父の戸籍に入籍することとはされていなかったが、旧国籍法二三条では、日本人たる子が認知によって外国の国籍を取得したときは日本国籍を失うとされており、内地と朝鮮との間の戸籍の移動も旧国籍法の右規定と同様の条理、原則によって規律されるとすることには十分な合理性があるから、内地の法令の観点からみても、日本人たる子が朝鮮人父に認知された場合、朝鮮戸籍に入籍すると解するのに何ら支障はなく、その子は共通法三条二項の「一ノ地域ノ法令ニ依リ家ヲ去ルコトヲ得サル者」に当たらず、被上告人は、共通法三条により、朝鮮戸籍に入籍すべきことになり、朝鮮人としての法的地位を取得したというべきであって、平和条約の発効に伴って日本国籍を喪失したものであると判断した。

これに対し、原審は、朝鮮人父による認知がされた場合、父が属する朝鮮の民事実体法規である朝鮮民事令一条、一一条により適用されるべき朝鮮慣習によって被認知者である被上告人は認知者父の家に入ることとなるが、(一)朝鮮の右慣習法は、我が国の旧民法の基盤である家制度とほとんど同一の家制度に立脚するものであるところ、家制度は、新憲法が立脚する個人の尊厳と両性の本質的平等とは相いれず、これを我が国内において適用することは、新憲法の理念に真っ向から相反し、我が国の公の秩序、善良の風俗に反するから、法例二条の要件を欠き、法律と同一の効力を有しないものというべきであるし、また、(二)共通法二条によって準用される法例三〇条により、そもそも家制度に立脚する右慣習法によるべき旨を定める朝鮮民事令の右各条項自体、その適用が許されないから、本件認知につき認知者、被認知者双方に適用される法令は新民法とするのが相当であるとした上、新民法によれば、被認知者である被上告人は、本件認知により認知者の家に入ることもなく、内地の家を去ることもないから、共通法三条一項に該当せず、朝鮮戸籍に入籍され内地戸籍から除籍されるべき者とはならなかったものというべきであり、被上告人は平和条約発効によっては日本国籍を喪失しないと判断した。

III. The court of the first instance judged as follows. In Korea, at the time of the Acknowledgment, it was provided in customary law that a child who was acknowledged by a Korean father should immediately enter the father's family. This satisfies the requirement under Article 3(1) of the Common Law. In Japan, on the other hand, at the time of the Acknowledgment, no law provided that a child who was acknowledged by father should necessarily enter the father's family register, but Article 23 of the old Nationality Law provided that a Japanese child should lose Japanese nationality when he acquired foreign nationality due to acknowledgement. It is sufficiently reasonable to construe that the transfer of a person from a Japanese family register to a Korean family register shall be regulated by the same rule or principle as that of the said provision of the old Nationality Law. Consequently, even from the perspective of Japanese laws, there is no obstacle to considering that a Japanese child who is acknowledged by a Korean father shall enter the Korean father's family register. Such a child does not fall under the category of the "person who may not withdraw from a family in a region under the law of the region" set forth in Article 3(2) of the Common Law. In accordance with Article 3 of the Common Law, the jokoku appellee shall enter a Korean family register and acquire a legal status as a Korean person. In consequence, the jokoku appellee lost Japanese nationality upon the effectuation of the Peace Treaty.

On the other hand, the court of the second instance judged as follows. According to Korean custom, which was applicable under Articles 1 and 11 of the Decree on Civil Affairs in Korea (sic = Chosen Family Register Decree), a substantive civil law in Korea to which the jokoku appellee's father belongs, the jokoku appellee who was acknowledged by her Korean father is supposed to enter her father's family. (i) Such Korean custom is based on a family system that is almost the same as the Japanese family system, which was the foundation of the old Civil Code of Japan. However, such a family system is in conflict with individual dignity and essential equality of the sexes, which are the basis of the new Constitution, and its application in Japan is completely contrary to the philosophy of the new Constitution and against public order and good morals in Japan. Therefore, Korean custom that fails to satisfy the requirement under Article 2 of the Law Concerning Application of Laws in General does not have the same force as law. (ii) According to the provisions of the Decree on Civil Affairs in Korea mentioned above, Korean custom based on the family system was to govern the issue of acknowledgment and family register in accordance with Article 30 of the Law Concerning Application of Law in General, which should be applicable mutatis mutandis under Article 2 of the Common Law. It is unallowable in the first place to apply such provisions, and therefore it is reasonable to apply the new Civil Code to both the acknowledging and acknowledged parties involved in the Acknowledgment. Under the new Civil Code, the Acknowledgement does not require the jokoku appellee, the acknowledged party, to enter the acknowledging party's family nor leave her own Japanese family. Therefore, the jokoku appellee does not fall under the category of the person set forth in Article 3(1) of the Common Law or a person who should enter a Korean family register and withdraw from a Japanese family register. In consequence, the jokoku appellee did not lose Japanese nationality upon the effectuation of the Peace Treaty.

四 しかしながら、原審の右判断は是認することができない。その理由は、次のとおりである。

1 韓国併合後も、朝鮮は異法地域とされ、かつ、法的規律が朝鮮慣習にゆだねられていた分野が多かったことからすると、朝鮮慣習の法的効力を判断するに当たり、明治四五年勅令第二一号によって朝鮮に施行されていた法例二条にいう「公ノ秩序又ハ善良ノ風俗」とは、朝鮮地域における公序良俗を指すものと解すべきであり、内地におけるそれに基づいて当該慣習の効力を判断すべきではない。そして、本件認知後である昭和三三年に公布された大韓民国民法も家制度を維持していたことなどからすると、前記の朝鮮慣習が本件認知当時の朝鮮地域における公序良俗に反するということはできない。したがって、原審の(一)の判断は是認することができない。

2 法例三〇条は、「外国法ニ依ルヘキ場合ニ於テ其規定カ公ノ秩序又ハ善良ノ風俗ニ反スルトキハ之ヲ適用セス」と定めているが、この規定の趣旨は、当該準拠法に従うならば、内国の私法的社会秩序を危うくするおそれがある場合に、右準拠法の適用を排除することにあり、したがって、外国法の規定内容そのものが我が国の公序良俗に反するからといって直ちにその適用が排除されるのではなく、個別具体的な事案の解決に当たって外国法の規定を適用した結果が我が国の公序良俗に反する場合に限り、その適用が排除されるものと解すべきである。

この理は、共通法二条二項において準用する法例三〇条の適用に当たっても同様というべきであり、朝鮮地域の法令の規定自体が内地の公序良俗に反することによって直ちにその適用が排除されるものではなく、朝鮮地域の法令の規定を具体的事案に適用した結果が内地の公序良俗に反するか否かを検討する必要がある。原審は、朝鮮慣習が家制度に立脚しているから、日本国憲法が立脚する個人の尊厳と両性の本質的平等と相いれないなどと説示したのみで、右朝鮮慣習によることを定める朝鮮民事令一一条等の適用を排除しているが、家の制度が日本国憲法及び新民法施行後の我が国の公序に反するからといって、直ちに当該朝鮮法令を準拠法として適用することが許されなくなるわけではなく、原審の(二)の判断には、法例三〇条の解釈適用を誤った違法があるといわざるを得ない。

右の観点から本件をみるに、本件認知によって庶子となった子が朝鮮民事令一一条により朝鮮慣習の適用を受けて父の家に入るとすれば、共通法三条等により、子は父の朝鮮戸籍に入り、内地から朝鮮への地域籍の変動を生ずること(その結果、国籍の変動を生ずること)にもなる。しかし、父に認知された際に、非嫡出子が母の戸籍にとどまるものとするか、父の戸籍に入籍するものとするかは、基本的には立法政策の問題であって、そのこと自体が直ちに個人の尊厳ないし男女平等主義に反するということはできない。これを地域籍ないし国籍の変動の問題としてとらえてみても、当時、施行されていた旧国籍法二三条は、子が認知によって父の国の国籍を取得した場合に日本の国籍を喪失する旨を規定していたところであり、このような規定にもかんがみると、認知により母の地域籍を去って父の地域籍に入ることは、平和条約の発効によって日本の国籍を喪失することにつながるとしても、内地の公序良俗に反するとまでいうことはできない。

そうすると、本件認知により被上告人が朝鮮人父の戸籍(地域籍)に入るということが内地の公序良俗に反するということはできないものと解するのが相当である。

なお、当時日本国内に施行されていた新民法及び戸籍法には子が父の戸籍に入ることを禁止する規定はなく、当時の旧国籍法二三条及び戸籍法二三条の規定にもかんがみると、被上告人が、内地の法令上家を去ることを得ざる者に当たるとして、共通法三条二項により朝鮮戸籍に入ることができないと解することはできず、被上告人は、本件認知によって、内地戸籍から除かれるべき者となったというべきである。

3 以上によれば、共通法三条の適用の結果、本件認知により被上告人が日本の国内法上朝鮮人としての法的地位を取得したことを否定することはできず、被上告人は、平和条約の発効とともに日本国籍を失ったものといわざるを得ない。

IV. However, the judgment of the second instance cannot be accepted for the following reasons.

1. Even after the annexation, Korea was regarded as a region in which different laws were applicable, and Korean custom were still used as standards for legal judgment in respect of various matters (sic = Even after the union of [the Empire of] Korea [with the Empire of Japan, at which time Korea was renamed Chosen], Chosen was regarded as a region with different laws, and, given that there were many fields in which legal ordering was left to Chosen customs . . . ). Consequently, "public order or good morals" prescribed in Article 2 of the Law Concerning Application of Laws in General, which was also effective in Korea under Imperial Order No. 21 of 1912, should be construed to refer to public order and morals in the region of Korea, and the effectiveness of Korean custom should not be judged in accordance with public order and morals in Japan. Considering that the Civil Code of the Republic of Korea promulgated in 1957, after the Acknowledgment was made, maintains the conventional family system, the Korean custom mentioned above cannot be construed to be against public order and morals in the region of Korea at the time of the Acknowledgment. Therefore, the judgment of the second instance mentioned in (i) above cannot be accepted.

2. Article 30 of the Law Concerning Application of Laws in General provides that "In the case where a foreign law is to govern, it shall not be applied if the provisions thereof are against public order or good morals." The purport of this provision is to exclude the application of a governing foreign law if social order between private parties in Japan would be harmed by applying such law. Consequently, it should be construed that the application of a foreign law shall not be excluded only on the ground that the provisions of the law are against public order and morals in Japan, but should be excluded only if public order and moral in Japan would be harmed by applying the provisions of the law in solving individual disputes.

This reasoning is also valid in terms of the application of Article 30 of the Law Concerning Application of Laws in General, which is applicable mutatis mutandis under Article 2(2) of the Common Law. More specifically, the application of a law of the region of Korea shall not be excluded only on the ground that the provisions of the law are against public order and morals in Japan, but rather it is necessary to examine whether or not public order and morals in Japan would be harmed by applying the provisions of the law to individual disputes. The judgment of the second instance excluded the application of Article 11 of the Decree on Civil Affairs in Korea, etc., which provided that Korean custom was to govern, only on the ground that Korean custom was based on a family system and therefore it was in conflict with individual dignity and essential equality of the sexes, which were the basis of the Constitution of Japan. However, the applicability of the Decree on Civil Affairs in Korea as a governing law shall not be denied only on the ground that the family system is against the Constitution of Japan and public order in Japan after the enforcement of the new Civil Code. Therefore, the judgment of the second instance mentioned in (ii) above should inevitably be construed to contain errors in interpretation and application of Article 30 of the Law Concerning Application of Law in General.

If the child who became an illegitimate child of a Korean father by the Acknowledgement enters the father's family according to Korean custom that is applicable under Article 11 of the Decree on Civil Affairs in Korea, the child is supposed, under Article 3 of the Common Law, etc., to enter the Korean father's family register, which would bring about a change of regional registry from Japan to Korea and also a change in nationality (sic = engender a change of regionality [regional registration / affiliation] from the Interior to Chosen [and in consequence, would engender a change of nationality (national registration / affiliation)]). However, whether an illegitimate child who was acknowledged by father shall remain in mother's family register or enter father's family register is basically a legislative issue, and this issue does not directly conflict with individual dignity and essential equality of the sexes. It can also be regarded as an issue relating to a change of regional registry or nationality. Article 23 of the old Nationality Law, which was effective at the time of the Acknowledgment, provided that a Japanese child should lose Japanese nationality when he acquired nationality of the father's country due to acknowledgement by father. In light of this provision, it is inappropriate to go so far as to say the effect of an acknowledgement, by which the acknowledged child shall leave mother's regional registry and enter father's regional registry, is against public order and morals in Japan, even if the child would lose Japanese nationality upon the effectuation of the Peace Treaty.

Consequently, it is reasonable to construe that the transfer of the jokoku appellee's family register (regional registry) upon the Acknowledgment to the Korean father's family register cannot be deemed to be against public order and morals in Japan.

Under the new Civil Code and the Family Registration Law, which were effective at the time of the Acknowledgement, a child was not prohibited from entering father's family register. Also in light of the provisions of Article 23 of the old Nationality Law and Article 23 of the Family Registration Law, which were effective at the time of the Acknowledgement, it cannot be construed that the jokoku appellee cannot enter the Korean family register in accordance with the Article 3(2) of the Common Law on the ground of falling under the category of the person who may not withdraw from a family in Japan under the law of Japan. Rather, the jokoku appellee shall be deemed to be excluded from the Japanese family register due to the Acknowledgment.

3. For these reasons, it cannot be denied that, as a result of applying Article 3 of the Common Law, the jokoku appellee acquired a legal status as a Korean person under national laws of Japan due to the Acknowledgment, and the jokoku appellee should inevitably be construed to have lost Japanese nationality upon the effectuation of the Peace Treaty.

五 右と異なる原審の判断は、法令の解釈適用を誤ったものであり、この違法は原判決の結論に影響を及ぼすことが明らかである。論旨は理由があり、原判決は破棄を免れない。そして、さきに説示したところによれば、被上告人の本件請求は理由がないことに帰し、これと結論を同じくする第一審判決は正当であって、上告人の控訴は棄却すべきものである。

よって、裁判官全員一致の意見で、主文のとおり判決する。

最高裁判所第一小法廷

裁判長裁判官
      藤井 正雄
  裁判官  小野 幹雄
  裁判官  遠藤 光男
  裁判官  井嶋 一友
  裁判官  大出 峻郎

V. The judgment of the second instance, which is contrary to the above reasoning, has wrongly interpreted and applied laws, and this apparently has affected the judgment of the second instance. The jokoku appellant's argument is well-grounded, and the judgment of the second instance shall inevitably be quashed. According to the reasons mentioned above, in consequence, the jokoku appellee's claim is groundless. The judgment of the first instance that goes along with this conclusion is justifiable, and the koso appeal filed by the jokoku appellant shall be dismissed.

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

Presiding Judge Justice
          FUJII Masao
  Justice ONO Motoo
  Justice ENDO Mitsuo
  Justice IJIMA Kazutomo
  Justice ODE Takao

(This translation is provisional and subject to revision.)
(* Translated by Judicial Research Foundation)

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