Status and applicable law
Governing the civil affairs of territorialized people
By William Wetherall
First posted 1 August 2008
Last updated 28 April 2021
Jurisdiction and applicable law
International private law
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Law of application
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Law of personal affiliation
Affiliation and status
Country of nationality
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Place of domicile
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Place of habitual residence
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Status and capacity
Laws of laws
1890 Rules of Laws
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1898 Rules of Laws
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Revisions
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1948 revision
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2000 revision
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2007 Common Rules Law
1918 Common Law
Interior, Chōsen, Taiwan, and Karafuto in Imperial Japan's territorial domestic laws of laws
Issues in 1898-2007 laws
Two or more nationalities
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No nationality
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Taiwan, Hokkaido, Okinawa etc.
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Karafuto
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Chosen
Divided Korea in Japan today
Neither ROK nor DPRK recognized
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Only ROK recognized
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Both ROK and DPRK recognized
Related articles
1872 Family Register Law
Marianne's custody dispute, 1956-1958
Cho Kyongje on "Personal law of Koreans in Japan"
Jurisdiction and applicable law
"Territorialized persons" is my term for people who are viewed as legally affiliated with a territory, for whatever reason. A person's territorial affiliation -- whether for purposes of "subjecthood" or "nationality" or "citizenship" or "residence" -- is commonly a factor in how the person will be treated as a "natural person" or "corporate person" under one or more territorial laws.
This section concerns "jurisdiction" and "applicable law" when multiple territories -- and generally multiple territorial affiliations -- are involved. The next section covers various definitions of the "affiliation" of "natural" and "juridical" (legal) persons for the purpose of determining jurisdiction and applicable law.
As all these matters are interrelated, there will be some repetition. I will begin each section with some general observations that I do not intend to be rigorous, and which legal scholars will probably view as evidence of my ignorance about a field of law that even lawyers find nightmarish.
After making general observations, I will focus on jurisdiction, applicable law, and affiliation in the Empire of Japan, when Japan had as many as six legal jurisdictions. All this will serve as a preface for introducing the 1918 Common Law, which concerned applicable law in private matters among people affiliated with these jurisdictions.
In a nutshell
To avoid conflicts between legal entities, such as states and their various organs and agencies, laws are needed to determine which entity has responsibility or jurisdiction in a given matter, but laws are also needed to determine which entity's laws are applicable to the matter.
Jurisdiction may be defined as the geographic or demographic reach of a legal authority such as a government, police force, or court. Such authorities, as law-enforcement bodies, are guided by laws that determine which laws they are authorized to enforce, and where and with regard to whom they are authorized to enforce these laws.
Someone may commit a crime in one territory and flee to another territory. The two territories might be sovereign states, and perhaps they have agreements concerning the cooperation in investigation, apprehension, and extradition of suspects. Or the two territories are different jurisdictions within the same sovereign state, and are subject to national or territorial laws concerning how national or territorial authorities deal with a criminal or civil case or private matter.
Agreements and laws of this kind are intended to eliminate or at least minimize conflicts arising over, say, the right of an agency of one entity to within another agency's or entity's jurisdiction, or which entity or agency has control in jurisdictions where they have agreed to work together.
Applicable law refers to the laws with which individuals or entities are supposed to comply -- or, in turn, to the laws that a legal authority feels obliged to apply in the course of carrying out its lawful responsibilities. The term is essential to discussions of what laws a court determines should apply in the hearing and judgment of a particular case. A law of laws is a set of rules for determining which laws should apply in to matters between parties, whether natural or juridical persons.
Courts of law constitute a legal marketplace. The laws of laws of multi-state entities, like those adopted by the European Union, seek to eliminate or minimize differences in the ways member states determine applicable law, in order to prevent what is called "forum shopping" -- in which a party takes a dispute not to the court best situated to settle the matter, but to a court which applies a law that favors the party's position. "Forum shopping" is on a par with seeking to live or conduct business in a place with more benefits, such as lower taxes, less restrictive regulations, or better welfare benefits.
A personal comment on the nature of laws
Laws are standards -- rules and regulations -- for guiding behavior and action. Penal codes guide actions taken by a government against behaviors it considers criminal. By providing that people will be punished if found guilty of proscribed behaviors, penal codes also have the effect of deterring at least some people from committing the stipulated offenses.
Civil codes guide actions in family and other social matters, and commercial codes set standards for business practices. Such codes both set standards for proper procedure, and prescribe punishments if someone fails to comply legal requirements. Some acts that contravene civil and commercial codes may also be criminal.
Such laws are generally designed to operate within specific governmental jurisdictions -- a village, a district, and entire country, possibly a group of countries. All manner of other kinds of "legal bodies" -- organizations, corporations, associations -- have their own laws by which they govern their own operations. "House rules" operate within the house -- in the family, in the company.
Revisions of laws
Laws of physics describe the standards by which humans predict that matter will behave. If matter behaves differently, then the laws are revised to better predict observed behavior. Clouds that fail to precipitate rain or snow as predicted will not be punished. Rather, weather scientists who fail to make reliable predictions are likely to find themselves unemployed.
Laws intended to guide human behavior are similarly subject to adjustment. A law intended to prevent drug abuse may not only fail to stem abuse, but in some way may encourage more abuse. People find ways to go around a law, or through holes in laws, or even invoke one law as justification for breaking another.
Just as laws may be toughened to "criminalize" a certain behavior, they may also be slackened to "decriminalize" the behavior. In some countries, laws concerning prostitution and pornography, alcohol and tobacco, and all manner of other such behaviors have been subject to radical change as governments take into account the effects of such behaviors on the health of individuals and families, and of society as a whole.
Penal codes are increasing being revised toward more "humanistic" treatment of offenders while also taking into consideration the "rights" of victims. Civil codes are evolving toward more liberal and egalitarian standards befitting mature democratic societies. Nationality continues to be important as a consideration of personal status, but today is less likely to be a cause for legal differentiation and social discrimination.
International private law
Private international law (国際私法 kokusai shihō) generally concerns individuals and non-state entities, typically in cases involving personal, family, business, and other civil matters.
A, a national of State X, wishes to divorce B, a national of State Y. And just to make things interesting, say the couple were married in State Z, which no longer exists. Which state's laws would apply if they were residing State W?
I will not attempt to answer this question -- and indeed it is probably unanswerable as stated -- but it suggests how complex an international personal matter could be.
Subnational jurisdictions
The term "international" implies relations between "states" in the sense of the member states of the United Nations. However, similar problems of applicable law may arise between between, say, residents of different states in multiple state entities such as the European Union, or in federal states like Canada, Germany, and the United States of America, among many other complex states consisting of states (by whatever name) within a state.
States within states also have multiple legal jurisdictions -- counties the state of California, for example, and municipalities within counties. There are city, county, state, and federal law enforcement agencies, and city, county, state, and federal ordinances, laws, and codes to sort out the jurisdictional and applicable law issues.
Japan as a sovereign state today has national crime and civil codes, and a national Family Register Law that reflects the family law provisions of the Civil Code. It also has 47 semi-autonomous prefectural entities, each of which has numerous municipal entities.
Yesteryear's Empire of Japan, though, at one point had six distinct legal jurisdictions. Four (Interior, Taiwan, Karafuto, Chōsen) were part of Japan's sovereign dominion, while the other two (Kwantung Province, South Sea Islands) were under Japan's legal control and jurisdiction outside its sovereign dominion.
Under Japan's 1918 Common Law, which determined applicable law in private matters within the empire, one of the jurisdictions (Karafuto) was treated on a par with the prefectural Interior, but the other two -- Taiwan and Chōsen -- were treated differently. Bureaucracies, police, and courts in these three jurisdictions operated under territorial rules, but all were parts of "Japan" when it came to the 1898 Rules of Laws, which determined applicable law in international private matters.
In other words, Japan had two laws of laws -- the 1898 law for international purposes, the 1918 law for domestic purposes. Japan consisted of only its Interior until it acquired Taiwan in 1895. Over the next two decades, it added two more territories to its sovereign empire and two territories to its legal empire, for a total of five territories outside the Interior.
"Interior" reflects "Naichi" (内地), which had been used laws and other references to Japan's prefectural entity from the early Meiji period. The five other territories were collectively called the "exterior" or "gaichi" (外地), but "gaichi" -- unlike "Naichi" -- was not a legal term, and in laws and most bureaucratic matter the exterior territories were referred to by their distinct names.
Law of application
Rules of application determine which laws apply to matters involving individuals or entities of different nationality or territorial status.
Each of the legal jurisdictions within the sovereign empire -- the Interior (including Karafuto), Taiwan, and Chōsen -- had their own laws. When Japan first incorporated Taiwan, Karafuto, and Korea as Chōsen into its sovereign empire, their laws were different from those of Japan's prefectural Interior, and of course also different from each other. Over the years, their laws were gradually Interiorized, while Interior laws themselves continued to evolve. Another way to put it is that the laws of all jurisdictions were works in progress as they converged toward a common legal standard.
For example, family registration laws in the three territories were governed by different family laws reflecting different customs of marriage, names, and so forth. Not only were Taiwan and Chōsen family laws gradually (and sometimes not so gradually) revised toward Interior standards, but Interior laws were modified to accommodate private matters -- such as marriage and adoption -- between individuals of different territorial statuses.
Proper law
The term proper law or governing law (準拠法 junkyōhō) -- literally "standard law" [conforming to local rules] -- refers to the law that a forum court, under its own procedural laws, decides what laws or mix of laws -- local or national, domestic or foreign -- are applicable to the matter before the court.
Many contracts end with a "governing law and jurisdiction" clause. SoftBank's "My SoftBank" contract, for example, ends with the following provision concerning the disposition of disputes that might arise between SoftBank and the customer who agrees to the "use agreement [terms of use]" (利用規約 riyō Kiyoaki) of the service, which generally is free (last revised 1 March 2011, my translation).
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準拠法・裁判管轄 本規約に関する準拠法は日本法とします。また、本サービスまたは本規約に関連して本サービスご利用者とソフトバンクの間で訴訟の必要が生じた場合は、東京地方裁判所を一審の専属的合意管轄裁判所とします。 Proper [Governing] law and court jurisdiction The proper [governing] law concerning this agreement shall be Japanese law. And, in the case [event] a need for litigation arises between the user of this service and SoftBank concerning this service or this agreement, the Tokyo District Court shall be the exclusive consensual [agreement] jurisdictional court of the first instance [hearing]. |
Succession
Ideally, the laws of laws of two states whose laws are candidates for application to a given matter would be constructed so as to ensure parity of treatment no matter where the matter was brought to court. For example, whether in Japan and the United States, a court would end up applying the same laws to decide whether a given divorce or will, for example, was valid.
As a legal term in inheritance law, succession (相続 sōzoku) means the passing of assets upon the death of one person to another person. The main legal issue is the determination of beneficiaries -- those qualified to receive the deceased person's assets. If not specified in a will or other such instrument, the beneficiaries are usually the blood or in-law relatives stipulated by law. Since inheritance laws differ from country to country, the problem arises as to which country's laws apply upon the death of an individual who was not residing in his or own country -- among other factors that can complicate inheritance.
Japan has a law concerning the forms of valid wills -- i.e., wills that will be recognized as legal in Japan. General inheritance rules in the Civil Code apply when someone dies without leaving a will. Though increasingly people in Japan are making wills, most families rely on the default rules. Occasionally there are cases in which people who feel they deserve to be beneficiaries contest either the default rules or valid wills. For the most part, though, inheritance in Japan is a relatively simple and orderly procedure.
The inheritance rules in the Civil Code, however, automatically apply only to Japanese nationals -- i.e., members of Japanese household registers. Aliens in Japan who wish to leave their property in Japan to their families or others, whether in Japan or elsewhere, are generally advised to make a valid will in Japan, for the purpose of clarifying especially lineal and other legal relationships with beneficiaries.
A will written by a legalist at a public notary office (kōshō yakuba 公証役場) in Japan, for a foreign resident of Japan, must comply with Japanese law and with the foreign resident's home country law, which may defer to Japanese law. American readers note that a notary public in Japan is nothing like a notary public in most states of the United States, where dime-a-dozen licensed notaries are generally permitted only to witness signatures. A notary public in Japan is a seasoned legalist, typically a retired attorney or judge, who is thoroughly familiar with domestic law and competent to investigate laws in other countries for the purpose of writing wills that Japanese family courts will recognize as valid.
Generally -- and increasing so -- home country laws refer back to (renvoi) the law of the country where property is located. In such cases, property that an alien in Japan leaves to beneficiaries, regardless of their nationality or where they are domiciled, will be treated under Japanese law for purposes of assessing applicable inheritance taxes. Whereas Japanese law unconditionally applies to a deceased Japanese national regardless of where the decedent's property is located.
Generally, aliens who are domiciled in Japan are subject to inheritance tax on property located anywhere. Non-domiciled aliens are subject to taxes only on property located in Japan.
Such matters are governed by a number of laws in Japan, the most important of which, for purposes of international private law, are the 2007 Common Rules Law or "Common rules law concerning the application of laws" (法の適用に関する通則法 Hō no tekiyō ni kan suru tsūsokuhō) (below), and the 1964 "Law concerning proper law of forms of wills" (遺言の方式の準拠法に関する法律 Yuigon no hōshiki no junkyohō ni kan suru hōritsu).
The 1964 law concerning forms of wills (No. 100 of 1964, promulgated 10 June 1964, enforced from 2 August 1964) is a very short and law that centers on the following list of forms that will qualify a will as valid in Japan (based based on version as revised by the 2007 Common Rules Law, my structural translations).
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一 行為地法 二 遺言者が遺言の成立又は死亡の当時国籍を有した国の法 三 遺言者が遺言の成立又は死亡の当時住所を有した地の法 四 遺言者が遺言の成立又は死亡の当時常居所を有した地の法 五 不動産に関する遺言について、その不動産の所在地法 |
In other words, Japanese law is prepared to recognize all manner of standards of validity -- depending, of course, on the status of the decedent at time of death.
Law of personal affiliation
The concept of personal law (属人法 zokujinhō) -- literally "affiliation personal law" -- concerns the legal status and competency of individuals as an issue in private international law (国際私法 kokusai shihō) -- literally "international private law". The study of both is a study of positive and negative conflict between national laws as they apply to individuals, and how such conflicts are resolved by "common laws" or "rules of laws" or "laws of laws" -- i.e., laws that determine which laws apply when more than one law might apply.
Natural and legal persons
Individuals are natural persons, while a company is a juridical (legal) persons. The nationality of a natural person is generally based on the domestic laws of the state of which the individual claims to be a national. The nationality of a juridical person is usually that of the country in which the company has been incorporated, i.e., its seat of corporation.
All manner of issues can arise between parties in international disputes. The parties might disagree as to which laws are applicable, and a court may disagree with one or both of the parties as to whether it has jurisdiction and what laws it should apply to the matter between the parties, given their status and capacity, capacity being part of status.
Dual nationality
Personal law includes a principle called "principle of personal affiliation" (属人主義 zokujin shugi). This principle holds that, in at least some instances, a person should be treated according to the laws of the country with which he or she is affiliated by nationality. The nationality laws of most states have provisions for aliens to acquire the state's nationality through naturalization. In the interest of minimizing dual nationality, most states have required that naturalizing aliens lose their original nationality.
Minimizing dual nationality was justified in order to avoid conflicts of affiliation, hence conflicts of applicable law. A man who betrays a plans of a military operation will is a spy if a foreign national, but a traitor if a national. Is a dual national a spy or traitor? Laws of laws help resolve such issues.
Today, dual nationality is regarded as less of a problem because the laws of laws of most states now have fairly clear rules as to which nationality should be recognized as determining a dual national's nationality status in various situations. Generally, dual nationals are unable to simultaneously exercise the full rights of both nationalities, although they may be subject to the duties of both nationalities.
Dual US-Japanese nationals, for example, will generally be treated as US citizens in the US but as Japanese nationals in Japan. In the US they may renew their Japanese passports at Japanese consulates and otherwise avail themselves of services as Japanese nationals, but they may not seek diplomatic protection. Similarly, in Japan they may avail themselves of Citizen Services at US consulates, but in legal matters related to Japan they will be viewed as Japanese nationals.
Generally US-Japanese dual nationals will use US passports to enter and leave the US, but Japanese passports when entering or leaving Japan. Entering the US on a Japanese passport would be seen as intending to abandon US nationality, and vice versa when entering Japan on a US passport.
Multiple registration
More problematic than dual nationality is multiple registration. The United States does not have a system of family registration, nor are individuals required to establish personal registers anywhere -- notwithstanding obligations to obtain a Social Security Number.
However, every state has a voter registration law. And most states explicitly forbid voting in other jurisdictions, or at more than one place within the same jurisdiction. In other words, US citizens can exercise their rights of suffrage only if they are registered as voters -- and registration in more than one place is illegal. Moreover, registration requires that one state one's political party affiliation if any-- though one can decline to state (DS). People who move, change their name, or change their political party need to re-register.
In Japan, resident (domicile) registration rolls serve as an electoral rolls for municipal, prefectural, and national elections -- and as rolls for the legal administration of numerous other elements of municipal, national, prefectural, and municipal affiliation, from public school enrollment to national health insurance. Because registration constitutes a person's legal existence in Japan, it is against the law to be registered in more than one place as a matter of either primary register address (honsekichi), or in more than municipality as a matter of domicile address (juminhyō) if different from one's primary register address (honseki).
Aliens, whose primary affiliations (honseki) are taken to be their countries of nationality, are permitted to establish domiciles in Japan but in only one municipality. Municipal alien registration makes an alien an affiliate of both the municipality -- a village, town, city, or ward within a city -- and the prefecture that has jurisdiction over the polity.
Multiple territorial registration was also prohibited in the Empire of Japan. People in Interior, Taiwan, and Chōsen registers were equally Japanese nationals, in that they possessed the same state nationality. And they could establish a domicile in another legal jurisdiction of the empire. But they were allowed to have only one domicile. And from 1925, this domicile determined their eligibility to vote and run for office -- if they satisfied other suffrage qualifications.
Territorial (honseki) affiliations could, in some cases, change. In time, Japan introduced its Interior husband-adoption rules into Taiwan and Chōsen laws, with the result that a man in a household register in one territory could enter the register of a household in another territory as a husband. Such register migrations resulted in changes in territorial status, just as when a bride migrated to her husband's register. Child adoption also involved register migration.
Personal law in postwar Korea
The study of personal law is particularly interesting in cases of divided states -- such as when Germany divided east and west, and Korea divided north and south, after World War. Germany was a defeated state when it was occupied following invasion on different fronts by different Allied armies. But the two German states that emerged in the divided occupation zones, and claimed the same territory and inhabitants, are again a single state. Though Korea had been a state, it was not a state but part of the sovereign territory of defeated Japan when occupied by the Soviet Union in the north and the United States in the south in September 1945.
The first laws of postwar Korea were directives issued by the military governments of the USSR and the US in their respective occupation zones. The intent of the Allied Powers was to integrate the two zones under a single Korean government. But in 1948 the United States allowed the establishment of the Republic of Korea (ROK) in the north, and a month later the Soviet Union permitted the founding of the Democratic People's Republic of Korea (DPRK) in the north.
Both ROK and DPRK claimed sovereignty over essentially the same "Korea" (Chōsen) and the same affiliated inhabitants -- who, under Japanese law, had been Japanese and remained Japanese until the San Francisco Peace Treaty came into force in 1952. Both states also claimed the allegiance of Koreans (Chosenese) outside Korea -- including the roughly 600,000 who had remained in "Japan" as defined by the Supreme Commander for the Allied Powers (SCAP) -- among the roughly 2,000,000 who were in the prefectural Interior when Japan surrendered to the Allied Powers on 2 September 1945.
"Japan" was what remained of the former Empire of Japan for Occupation purposes. At the beginning of the Occupation it consisted of the former "Interior" -- meaning the prefectures -- minus a couple of prefectures (Karafuto and Okinawa) and some small islands affiliated with other prefectures (the Kuriles, Ogasawara, et cetera). Chōsen (Korea) and Taiwan (Formosa), though still legally part of Japan, were separated from Japan for governmental and administrative purposes, to facilitate their legal cession away from Japan as "liberated" territories.
SCAP also re-defined "Japanese" to exclude Japanese who were affiliated with the separated "Outlying Areas" such as Korea and Taiwan. Under Japanese law, what SCAP called "Koreans" and "Formosans" (sometimes "Formosan-Chinese") remained "Chosenese" and "Taiwanese" -- meaning Japanese affiliated with Chōsen or Taiwan. In other words, from the start of the Allied Occupation of Japan in 1945, SCAP set in motion the alienation of Chosenese and Taiwanese from their legal status as Japanese -- before the legal separation of Chōsen and Taiwan from Japan, and consequently their loss of Japanese nationality, in 1952.
Affiliation and status
There are many layers to "affiliation" as most people have multiple affiliations. Aliens who are domiciled in Japan are affiliated with the municipality in which they have registered as aliens, and with its prefecture, but only Japanese nationals are affiliated with Japan as a state. The criminal code generally applies to everyone regardless of their status, so long as they are not protected by diplomatic immunity. Many aspects of civil law in Japan also apply equally to Japanese and aliens domiciled in Japan, but nationality determines the automatic application of some civil laws, especially in the area of family law.
"subject to the application of the Family Register Law"
Status in Japan derives from territorial affiliation, which is a matter of household registration.
Japan's Family Register Law applies only to household registers affiliated with Japan's prefectural municipalities. The present law is a postwar version of a series of family register laws going back to 1872. The Family Register law was applied to Karafuto before it formally joined the Interior, but not to Taiwan or Chōsen, which continued to be administered under their own register laws, although these laws had undergone considerable interiorization.
Phrases like "those subject to the application of the Family Register Law" (戸籍法ノ適用ヲ受クル者 Kosekihō no tekiyō o ukuru mono) and "those not subject to the application of the Family Register Law" (戸籍法ノ適用ヲ受ケザル者 Kosekihō no tekiyō o ukezaru mono) had been used in prewar laws, such as the 1927 Military Service Law, to stipulate the extent of the law's application within the empire.
The first 1943 revision of the 1927 Military Service Law extended its application to "those subject to the Family Register Law or to the provisions concerning family registers in the Chōsen Civil Matters Decree" (戸籍法又ハ朝鮮民事令中戸籍ニ関スル規定ヲ受クル者). A second 1943 revision dropped this phrase, making the law applicable to all imperial subject males of ages 20 to 40.
A supplementary provision to the 1945 revisions to the 1925 election law stipulated, which applied to all subjects, provided that, for the time being, rights of suffrage would be suspended for "those not subject to the application of the Family Register Law" (戸籍法ノ適用ヲ受ケザル者). Since Taiwan and Chōsen were not reached by this law, Taiwanese and Chosenese domiciled in postwar Japan were unable to vote or run for office, as they had before this revision.
Before the 1945 revision, rights of suffrage had been based on subjecthood and domicile -- i.e., subjects domiciled in election districts were eligible to vote and run for office. The 1945 revision placed territorial constraints on eligibility.
The Allied Powers had declared Koreans (Chosenese) and Formosans (Taiwanese) "liberated nationals" and the Supreme Commander for the Allied Powers (SCAP) had directed that they be treated as "non-Japanese" for "repatriation" purposes. "Japan" was redefined as the Interior minus a few of its territories. The Government of Imperial Japan thus lost its control and jurisdiction over all territories -- including Korea (Chōsen) and Formosa (Taiwan)-- that were outside "Japan" as downsized for occupation and reconstruction purposes.
The 1947 Alien Registration Order, enforced from the day the 1947 Constitution came into effect, provided that Chosenese and some Taiwanese would be treated as "aliens" for the purpose of the law -- while implying that were Japanese nationals. Here, too, the boundaries of status were shifted from "nationality" to "territoriality" -- in order to accommodate the treatment of people who had in effect dual statuses.
Nationality and domicile
"Affiliation" implies a having a "status" based on a formal connection with an entity, usually through registration. Most people have multiple status representing different kinds of affiliation.
One begins acquiring statuses from birth. Being legally the child of at least one's mother and also of one's father if known, constitutes a legal status. Being a male or female constitutes a legal status. One's age constitutes yet another legal status.
One then has statuses as a resident of a municipality within a larger entity, such as a county or district, which may be in a prefecture or province or state, which in turn may be part of a republic or multi-national regional entity. Among such territorial statuses, perhaps the most important is nationality.
Most states, including Japan, rely on registration of certificates of live birth to initiate determinations of legal status, including nationality. In the United States, one is not actually born in the United States as such, but in one of its states, or in the District of Columbia or a territory such as Puerto Rico. Each of these entities is governed by different birth registration laws, but require registration of birth as proof of birth within their jurisdiction.
In this sense, jus soli (right of soil) US citizenship derives through the state (or district or territory) in which a person is born. My children, born outside the United States, are both Japanese nationals and American citizens. Their Japanese nationality derives from the lineal relationship with their mother, who is a Japanese national. Their American citizenship, also based on the principle of jus sanguinis (right of blood), derives through their lineal relationship with me.
I was born in San Francisco, and so my birth certificate, filed with the city (which is also a county), serves as prima facie evidence that I am a native-born (natural) US citizen. My US passport, however, states that the United States considers me a citizen/national, and that for purposes of international law I have US nationality -- at least when I have entered a country using my U.S. passport. However, I naturalized in Japan, so I have a Japanese family register, which allowed me to obtain a Japanese passport. And my only legal status in Japan is as a Japanese national. I could have a passport of every other country in the world, but so long as I am residing in Japan on the strength of Japanese family register and Japanese passport, no other nationality would matter.
Until establishing my residence in Japan, I was domiciled in various municipalities in California, including San Francisco, Grass Valley, and Berkeley. When establishing my legal address for purposes of international law became my registered resident address in Japan. However, my "home country law" remained California -- not my country of nationality, but the state in which I had was domiciled before establishing a domicile in Japan. When naturalizing in Japan, my home country became Japan, and wherever I might be domiciled in the world as a Japanese national, my home country law would be Japanese law.
In Japan, all aliens -- except those protected by diplomatic immunity or other agreements that provide exceptional treatment under some circumstances, such as for United Nationals officials and US military personnel in Japan -- are entirely under Japan's sovereign jurisdiction. Japan is obliged to report apprehensions to an alien detainee's or arrestee's government embassy, but Japan has full jurisdiction.
Extraterritoriality
This was not the case in the late 19th century, when a number of states had extraterritorial rights in Japan and had their own consular courts. And the Supreme Commander for the Allied Powers (SCAP) also established extraterritorial jurisdictions and related courts in Occupied Japan in the mid 20th century. Even during the Occupation, however, only United Nations (Allied) nationals -- meaning essentially Occupation personnel -- were partly beyond the reach of Japanese courts.
During the Allied Occupation of Japan, other aliens in Japan, and many Japanese regarded as "non-Japanese" for purposes of "repatriation" and then "aliens" for purposes of alien registration, were fully subject to Japan's domestic laws and under Japan's legal jurisdiction. SCAP refused to permit Chosenese ("Koreans") in Japan -- who were "non-Japanese" and "aliens" for some legal purposes but Japanese for nationality purposes, to be treated other than in accordance with Japanese laws -- as this would have constituted extraterritoriality -- never mind that SCAP's own rules had established extraterritoriality for United Nations nationals.
Country of nationality
The so-called law of country of origin (本国法 hongokuō) -- literally "law of [subject's] principal [own] country [of affiliation]" -- is more commonly called "law of home country" or "home country law" -- or "national law".
Metaphorically, "home country" (本国 hongoku) seems to liken a country to a home. In law, this is generally used to mean one's country of nationality as a matter of present civil status, rather than origin as a matter of birth. Legalists also speak of the "principle of nationality" -- which, in Japanese, is commonly translated "hongokuhō shugi) (本国法主義) -- literally "principle of home country law".
Such ideas go back to law as it was developing in Europe in the late 18th century. France's 1804 civil code included a provision which extended the reach of laws concerning status and competency to French subjects in other countries.
Home country laws generally apply in private civil matters such as marriage and inheritance.
Nationality and residential status
Nationality and residential status are two of the most fundamental attributes a national or an alien has within a given country or locality. These and other statuses -- like gender, age, mental capacity, criminal record, and a long list of other possible attributes, including in some states race or religion -- determine not only an individual's rights and duties within the country or locality, but also facilitate or limit the individual's movements within and between countries and localities.
Generally people are subject to the laws of the country in which they are transiting, traveling, sojourning, or residing -- regardless of their nationality -- i.e., regardless of whether they are nationals or aliens.
However, some laws will treat some individuals differently according to the situation and their status. In some cases diplomats are protected by immunity, in some cases not. Application of tax laws may be based on nationality and/or residency status. Traffic laws usually apply regardless of nationality or residency status. Penal codes generally do not permit someone to get away with murder simply because of their nationality or status.
National borders matter when they are crossed, as by people who have committed a crime in one country and flee to another country. Not all states have extradition agreements, but more states now cooperate in international criminal investigations. Suspects will generally be tried in the territory in which they are charged with a crime, but problems arise when someone is apprehended in one country for committing crimes in several other countries.
In the United States, the state in which a murder is committed will prosecute the case. If the suspect flees to another state, and the other state arrests the suspect for an offense committed in its jurisdiction, it will usually prosecuted its case first. Federal law enforcement agencies and federal courts will have jurisdiction, and generally priority, in cases that involve violations of Federal Codes, including some interstate offenses.
Civil matters are more likely to be subject to the laws of the territory in which they originated, or of the territory with which the parties are affiliated. Here, too, borders matter when crossed. And among the various kinds of borders, the crossing of national borders can engender problems that hinge on the nationality of the parties.
A nation's borders are demographic as well as geographic. People affiliated with a country carry its borders with them when they enter another country, possibly through birth. Nationality is not only a cause for a state to treat an alien differently from its own nationals under its own laws, but may also be a cause for treating the alien under the laws of the alien's state if not under the laws of a third state.
Nationality itself is determined by law -- and nationality laws may treat people differently according to whether they are subject to the nationality laws of another state. Under Japanese law, for example, any person who is born in Japan, who does not qualify for Japanese nationality, will be treated as an alien whose nationality is determined by the laws of one or more other states.
Qualifications for Japanese nationality include instances in which both of the child's parents are stateless -- that is, the child is beyond the reach of another state's nationality law. If one of the child's parent's is a non-stateless alien, then Japanese law expects that the child will gain the nationality of that parent's nationality. If the child does gain that nationality, then the child becomes an alien in Japan with that nationality. If for some reason the child cannot obtain the nationality of the non-stateless alien parent, the child will be stateless -- and will be treated as a stateless alien under Japanese law. A child who gains the nationality of both alien parents who are of different nationalities will be treated as a national of only one of those states while in Japan -- most likely the most recently acquired nationality. A Japanese who has the nationality of another state will be treated as only Japanese.
If two Republic of Korea nationals in Japan have a child, the nationality of the child is a matter of ROK nationality law, to be determined by the ROK government or its legal representatives in Japan. Japan has no say in how ROK's nationality law operates anywhere in the world.
If a Japanese national and an ROK national have a child, Japanese law will also apply -- if the Japanese parent registers the child in a timely manner in his or her family register. If the parents are not married, the father has to recognize the child in a timely matter. Until 1985 in Japan's law, and until 2000 in ROK's law, whether the parents were married also mattered.
Place of domicile
Domicile is a legal term for the address where a person is presumed to intend to reside on a continuing basis -- not necessarily permanently, and not necessarily habitually -- but principally. In Japanese law, "domicile" (住所 jūsho) is usually taken to mean the address at which a person is registered as a resident -- in Japan or outside Japan.
Japanese who are registered as a resident of a Japanese municipality are considered domiciled in the municipality. Japanese who have never registered as a resident in Japan, or have declared themselves a resident of another country or otherwise abandoned their municipal resident registration status in Japan, are not regarded as domiciled in Japan.
Aliens with statuses of residence of 90 days or longer are also obliged to register as residents of the municipality in which they live. Aliens with longer term statuses, including of course aliens permitted to permanently reside in Japan, are considered to be domiciled in Japan for purposes of applying Japanese law.
Note that, in Japanese law, "domicile" is the more conventional term for an address based established by registration of one's residence. As such is is most likely found in Japan's domestic laws, whereas "habitual address" (see below) is more likely found in Japanese laws that reflect recent trends in international conventions concerning conflicts of laws.
Place of habitual residence
Habitual residence is the place where a person habitually resides. In considerations of applicable law, a person can have only one such residence -- but the determination of this residence may be difficult if the person has a number of residences.
Japanese, by definition, have a "honseki" or "principal register" address. But this is merely the address of the municipal register that territorially affiliates them with Japan's sovereign dominion, and thereby makes them part of Japan's nation. They may never have lived at, or even been to, this address.
Japanese who legally reside in Japan have an address based on their resident registration in a Japanese municipality, which is often other than the address of their principal register.
Japanese who legally reside outside Japan have a principal register address in Japan but no resident registration address. Such Japanese have either been born outside Japan and never established a resident registration address in Japan, or at one time they had such an address in Japan but filed a notification in Japan, or at a Japanese consulate, to the effect that they had established a domicile outside Japan.
An habitual address, however, is where the person has actually been residing, in the eyes of the court, apart from their domicile address. A Japanese with a legal domicile in Japan or even outside Japan, who begins living somewhere else in Japan or outside Japan without registering in the different locality, may be considered to be habitually residing in the different locating, which will then be taken as the habitual address for purposes of determining applicable law.
"Habitual address" is therefore more flexible than "domicile" address.
Note that "habitual" does not mean "permanent". Aliens in Japan who have a "permanent" status of residence are considered "domiciled" in Japan -- but many aliens with non-permanent statuses of residence are also "domiciled" in Japan for legal purposes. Japanese, however, are never considered "permanent" residents of Japan -- but only "domiciled" and/or "habitual" residents.
An alien who has a domicile in Japan may also be considered as having an "habitual address" elsewhere in Japan. In some circumstances, an alien who is domiciled outside Japan may also be regarded as habitually residing in Japan. Such distinctions are made to give courts flexibility in determining applicable law in cases involving complex residential behaviors -- such as someone is registered in one municipality but actually lives in another, or someone who is not domiciled in Japan but spends significant parts of their life in Japan.
Sometimes "intention" is taken as the criterion for establishing "habitual residence". In other words, establishing a principal home at a particular address may be taken as intention to habitually reside and be domiciled at that address -- even though the person may have several homes, and be moving around for business or other purposes.
Status and capacity
The status of the parties will determine whether they have the capacity to conclude a binding agreement such as an alliance of marriage or a business contract, or write a will that is recognized as valid. A natural person's status is usually based on nationality, domicile, or habitual residence, while the status of a legal person such as a company is generally based on where the company incorporated (equivalent to nationality) or later established an operation (equivalent to domicile).
Status
The term status (身分 mibun) in especially important in Japanese law, including the 1947 Constitution. The term is most commonly used in connection with one's status in a family register, including one's relationship to persons who qualify as blood (lineal) or in-law relatives.
Family registers are primary records of status acts (身分行為 mibun kōi) and resulting statuses -- most essentially birth, death, marriage, divorce, adoption alliances and dissolutions, but also (today) change of gender. Resident registers for Japanese, and alien registers for foreigners permitted to reside in Japan, establish one's domicile for purposes of municipal and prefectural affiliation and related rights and duties under national, prefectural, and municipal laws. Alien registers today include information concerning family ties to others in Japan, whether Japanese or aliens. There are plans to integrate Japanese and alien resident registers for the purpose of improving the administration of all matters that derive from municipal registration.
Change of nationality -- from one nationality to another, including acquisition or loss of Japanese nationality -- also constitute status acts. Japanese who renounce their nationality in Japan will be removed from their Japanese register and enrolled in an alien register. Aliens who are permitted to naturalize will be enrolled in a Japanese register in lieu of alien registration.
Of interest here, though, are mainly status acts which effect the formal definition of family relationships -- such as spousal or parent-child statuses.
Capacity
The term capacity, referring to the ability to perform a legal act, is an aspect of status. Age, and being married, are statuses, as is national or local affiliation. A natural person has to have reached a certain age before being subject to compulsory education laws and qualifying for enrollment in public schools. Age also figures in capacity to marry, vote, run for office, qualify for national pension benefits, or for health care benefits as an elderly person. A married person does not have the capacity to marry another person. And, under present law, a child who has not been legitimated by the marriage of its parents has an inferior status to a legitimate child when it comes of inheritance.
An alliance of marriage between two parties in Japan can be registered if both parties have the capacity to marry under the laws of their respective states of nationality. If both are Japanese, then of course only Japan's laws apply, and the capacity of the parties will be determined by their family register statuses, which reflect their ages, genders, and marital statuses. Registrations of marriages involving an alien or aliens generally require evidence of recognition of the marriage by the consulate(s) of the concerned foreign state(s).Capacity may also be limited by a certified physical or mental condition, or by a past violation of some kind, among other aspects of status. Capacity may also be based on whether or not a person has acquired valid licenses or permits.
In the Empire of Japan, register status including gender -- but not race or ethnicity, which were not matters of law and had no legal significance -- determined migrations between Interior, Taiwan, and Chōsen registers and corresponding changes in territorial status (affiliation). Interior women became Taiwanese or Chosenese when marrying a Taiwanese or Chosenese, and Taiwanese or Chosenese men adopted as sons or husbands into an Interior household became Interiorites.
These territorial statuses determined who lost and kept their Japanese nationality in 1952 when Taiwan and Chōsen were fully separated from Japan's national sovereignty.
As males generally had superior status to women in family matters in all three entities, the affiliation of the groom generally determined applicable law in interterritorial marriages. Generally the woman changed her territorial status.
Under the nationality laws of many states at the time, including Japan and for a while the United States, a woman who married a man of a different nationality stood to lose her natal nationality if she gained her husband's nationality through marriage. In other words, the gender-driven reciprocity of territorial laws within Japan was a fairly universal standard.
Japan's first de facto nationality law was the 1873 proclamation providing rules for an alien woman and in some cases an alien man to Japanese through marriage to a Japanese, and for a Japanese women to lose her status as Japanese if through a marriage to a foreign man she gained his status. Such provisions were embraced by the 1899 Nationality Law, which generally reflected the standards of family law in Japan while also comporting with the nationality laws of most other countries.
Capacity and "cultural defense"
"Capacity" includes mental capacity. Children generally do not have the legal capacity to decide legal matters for themselves, hence a parent or guardian makes decisions on their behalf. Between the black and white of minor and adult status are gray zones in which a minor may legally act with parental approval.
Young offenders are usually treated differently than adult offenders. And people who commit an offense under the influence of alcohol or drugs, or cause an accident in the midst of a heart attack or epileptic seizure, may also be regarded as having less "capacity" at the time of the offense or accident.
Is "culture" also an aspect of "capacity"? I.e., should "culture" be viewed as qualifying one's personal "capacity" to commit an offense?
I have long been interested in attempts in some courts, particularly in the United States but also elsewhere, to argue what is commonly called a "cultural defense". In a word, a "cultural defense" is an attempt to dismiss or mitigate charges on the grounds that, though an act violated applicable laws in the jurisdiction where it was committed, it was not against the law, or was a lesser order of offense, in the defendant's home country.
Such pleas have generally failed -- because the powers that cultural determinists attribute to "culture" are generally not cultural but personal. I.e., the acts attributed to "culture" are generally viewed as problematic individual acts even in the country whose "culture" is alleged to have been a contributing if not precipitating factor.
For a look at a California case in which a cultural defense was rejected, see The Trial of Fumiko Kimura.
Japan's laws of laws
Rules for determining applicable laws
among conflicting territorial laws
Japan has had a number of laws for determining applicable laws, as well as provisions in laws which stimulate rules of applicability. A number of early Meiji laws included applicability rules. The first law of laws as such, the 1890 Rules of Laws (法例 Hōrei) [Law No. 97], was intended to work together with the 1890 Civil Code (民法 Minpō) [Law No. 98]. The Civil Code, though promulgated, never came into effect.
The 1890 Rules of Laws was abrogated upon the promulgation of an entirely new version in 1898 (Law No. 10), in conjunction with the promulgation of the second part of a new Civil Code (Law No. 9), and it was enforced together with the new Civil Code (the first part of which had been promulgated in 1896 as Law No. 89).
The 1890 Civil Code included articles that were intended to serve as rules which would satisfy Article 18 of the 1890 Constitution, which provided that qualifications being a "subject of Japan" (日本臣民 Nihon shinmin) would be determined by law.
The 1890 Rules of Laws used the term "law of country of origin" [home country law] (本国法 hongoku hō) as well as "law of [place of] domicile" (住所の法律 jūsho no hōritsu) and "law of [place of] residence" (居所の法律 kyosho no hōritsu). By no later than the 1948 revision of the 1898 Rules of Laws, the latter two phrases has become "law of place of domicile" (住所地法 jūshochi hō) and "law of place of residence" (居所地法 kyoshochi hō). From the 1990 revision, the later of these two classifications of address became "law of place of habitual residence" (常居所地法 Jō-kyoshochi hō), by then the more familiar expression in international law.
The 1898 Rules of Laws, which was intended to resolve conflicts in private law both within the Empire of Japan and between the empire and other state entities, was last revised from 2000. The entire law was revised and replaced by the present 2007 law, called Common Rules Law concerning application of laws -- or, more commonly in English, "General law concerning application of laws".
The 1890 Rules of Law made no reference to the Interior, or to Okinawa or Hokkaidō as prefectures within the Interior to be treated somewhat differently with respect to determining enforcement. And of course it made no reference to Taiwan, which was not part of Japan until 1895.
The 1898 law, however, covered Taiwan, Hokkaido, Okinawa, and a few other island territories that were somewhat exceptionalized with regard to how the government could determine effectuation dates of statutes. The law was not intended to address the sort of "law of laws" issues that arose in private matters between subjects affiliated with different legal jurisdictions of the Empire of Japan -- meaning, in 1898, the Interior (including Hokkaido and Okinawa) and Taiwan.
Japan's legal territories included entities that were part of its sovereign dominion (Interior, Taiwan, Karafuto, and Chōsen), and entities that not part of its sovereign dominion (Kwantung Province and South Sea Islands). From 1918, Japan began to enforce the so-called Common Law -- a law that determined which jurisdiction's laws would apply in matters involving more than one jurisdiction.
1890 Rules of Laws
6 October 1890
Promulgated 6 October 1890 (Law No. 97)
This first Rules of Law as such was promulgated in conjunction with the promulgation of the 1890 Civil Code (Law No. 98) in mind, but this Civil Code was never enforced.
The importance of both 1890 laws, from the point of view of nationality law in Japan, is the manner in which they continued to regard the "standings" [statuses] of "Japanese" and "aliens" as "national standings" -- called "nationality" in the 1899 Nationality Law. See particulars in the immediately preceding section (above), and following Article 8 of this law (below).
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1890 Rules of Laws (Law No. 97) |
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Japanese textThe Japanese text is adapted from a copy posted at the "International private law room" (国際私法の部屋) of a personal website created by Nakanishi Yasushi (中西康), a professor of international private law at Kyoto University Law School (京都大学大学院法学研究科). Nakanishi is listed as one of the translators of one of the received translations of the 2007 Common Rules of Law (see below). I have shown the posted version as received -- with present-day kanji, hiragana rather than katakana, and voicing and punctuation. As received, the posted version lacks the first two articles, and I have not been able to vet its text against contemporary printed copies. Structural English translationThe structural English translations of selected articles are mine. CommentaryWords selected for commentary have been highlighted in bold blue in both the Japanese text and the English translations. |
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| 法例 | Rules of Laws |
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第3条 人の身分及び能力は其本国法に従ふ。 親属の関係及び其関係より生ずる権利義務に付ても亦同じ。 |
Article 3 The status and capacity of a person shall be in accordance with [the person's] home country law. Regarding also the rights and duties that engender [arise] from [pursuant to] relationships of kin [family relatives] or their relationships, they shall be the same [in accordance with the person's home country law]. |
Status and capacity"Status" (身分 mibun) and "capacity" (能力 nōryoku) have been among the most important terms in law. They are especially important in Japanese family law, hence Paragraph 2 of Article 3, stipulating that the determination of a person's status and capacity would be based on the person's home country law, also in family matters. |
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第4条 動産不動産は其所在地の法律に従ふ。然れども相続及び遺贈に付ては被相続人及び遺贈者の本国法に従ふ。 |
Article 4 |
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第5条 外国に於て為したる合意に付ては当事者の明示又は黙示の意思に従ひて何れの国の法律を適用す可きやを定む。 当事者の意思分明ならざる場合に於ては同国人なるときは其本国法を適用し又同国人に非らざるときは事実上合意に最大の関係を有する地の法律を適用す。 |
Article 5 |
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dōkoku-jin (同国人) or "person of the same country" is used reference to someone who is affiliated with the country in which movable or immovable property is located. |
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第6条 外国人が日本に於て日本人と合意を為すときは外国人の能力に付ては其本国法と日本法との中にて合意の成立に最も有益なる法律を適用す。 |
Article 6 When an alien effects in Japan an agreement with a Japanese, regarding the capacity of the alien, among [the alien's] home country law and Japanese law, [the parties] shall apply the most most beneficial law to the formation of the agreement. |
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第7条 不当の利得不正の損害及び法律上の管理は其原因の生じたる地の法律に従ふ。 |
Article 7 |
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第8条 本国法を適用す可き諸般の場合に於て何れの国民分限をも有せざる者又は地方に依り法律を異にする国の人民は其住所の法律に従ふ。若し住所知れざるときは其居所の法律に従ふ。 日本人と外国人の分限を有する者は日本法律に従ひ又二個以上の外国国民分限を有する者は最後に之を取得したる国の法律に従ふ。 |
Article 8 In various cases [instances] in which the home country law is to apply, those [persons] who possess a national status and the people of a country in which laws differ according to region shall follow the law of their domicile. When the domicile is not known [they] shall follow the law of [their] residence. Those who possess the statuses of [both] a Japanese and an alien shall follow Japanese laws, and those who possess two or more foreign national statuses shall follow the laws of the country [of the status] most lately [recently] acquired. |
Dual nationality recognized in 1890Paragraph 2 of Article 8 of the 1890 Rules of Laws recognized the legal fact that some Japanese possess more than one nationality -- referred to then as "bungen" (分限) meaning "standing" or "status". The 1898 Rules of Laws (see below) referred to "nationality" as (kokuseki 国籍), a newer word now universally accepted as the term signifying legal belonging to a state. The point, though, is that -- since the Meiji period -- Japan's domestic laws have recognized the existence of multiple nationality among Japanese. Having more than one nationality has never, per se, been illegal -- which does not mean that Japan accepts it. In fact, most states -- even those that don't object to multiple nationality -- restrict multiple nationals to one nationality through stipulations in laws of laws like Article 8 in Japan's 1890 Rules of Laws. National standing and multiple statusesThe importance of this article, in the 1890 Rules of Laws, is that it clearly recognizes the event of a person having multiple national statuses, including those of a Japanese and an alien. However, only one status could be recognized, and in the event that a person qualified as both a Japanese and an alien, the person would be treated as Japanese, and hence Japanese law would apply. kokumin bungen (国民分限) refers to a person's "national standing". The term "kokuseki" had not yet come into use. bungen (分限) or "standing" [status] was the term used in the 1873 proclamation which provided for changes of family register status in alliances of marriage and adoption between Japanese and aliens. kokumin (国民 kokumin) or "national" referred to a person as an "affiliate" (民 min) of the "nation" [country, state] (国 koku). jinmin (人民) or "person" is used to refer to a person as a demographic affiliate of a country. Just as kokumin was used to refer to individuals as "nationals" or to the population of individuals as a "nation", jinmin was also used to collectively refer to "the people" of a nation. "national standing""Japanese" (日本人 Nihonjin) and "alien" (外国人 gaikokujin) are "standings" [statuses] (分限 bungen) which are "possessed" (有する yū). Similarly, "foreign national standing" (外国国民分限 gaikoku kokumin bungen) in possessed. The 1890 Rules of Laws dovetailed with the 1890 Civil Code, which used the terms "national standing [status]", "standing [status] of Japanese" (日本人の分限 Nihonjin no bungen), and "standing [status] of alien" (外国人の分限 gaikokujin no bungen) in the articles that were intended to serve as a law of nationality. This version of the Civil Code, though promulgated, was never enforced. The 1890 Civil Code and Rules of Laws adopted this usage in conformity with previous standards of usage, despite reference in the 1890 Constitution to "subjects" (臣民 shinmin). The status provisions in the 1890 Civil Code were intended to satisfy the requirement of Article 18 in the 1890 Constitution, to the effect that the qualifications to be a subject of Japan would be determined by law. See 1873 intermarriage proclamation and 1890 Civil Code for full details. |
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第9条 公正証書及び私署証書の方式は之を作る国の法律に従ふ。但一人又は同国人なる数人の作る私署証書に付ては其本国法に従ふことを得。 |
Article 9 |
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第10条 要式の合意又は行為と雖も之を為す国の方式に従ふときは方式上有効とす但故意を以て日本法律を脱したるときは其限に在らず。 |
Article 10 |
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第11条 外国に於て其国の方式に依りて作りたる証書は不動産物権を移転する行為に係るときは其不動産所在地の地方裁判所長又は他の行為に係るときは当事者の住所又は居所の地方裁判所其証書の適法なることを検認したる上に非ざれば日本に於て其効用を致さしむることを得ず。 |
Article 11 |
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第12条 第三者の利益の為めに設定する公示の方式は不動産に係るときは其所在地の法律他の場合に於ては其原因の生じたる国の法律に従ふ。 |
Article 12 |
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第13条 訴訟手続は其執行を為す国の法律に従ふ。裁判及び合意の執行方法は其執行を為す国の法律に従ふ。 |
Article 13 |
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第14条 刑罰法其他公法の事項に関し及び公の秩序又は善良の風俗に関するときは行為の地当事者の国民分限及び財産の性質の如何を問はず日本法律を適用す。 |
Article 14 |
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第15条 公の秩序又は善良の風俗に関する法律に牴触し又は其適用を免かれんとする合意又は行為は不成立とす。 |
Article 15 |
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第16条 身分及び能力を規定する法律を免かるる合意又は行為は無効とす。 |
Article 16 |
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第17条 判事は法律に不明不備又は欠点あるを口実として裁判を為すを拒絶することを得ず。 |
Article 17 |
1898 Rules of Laws
16 July 1898
Promulgated 21 June 1898 (Law No. 10)
Enforced from 16 July 1898 concomitant with the 1898 Civil Code
Effective through 31 December 2006
Replaced from 1 January 2007 by the Lost effectiveness from 1 January 2007 by Common Rules Law concerning the application of laws (see below).
The sanctioning and promulgation particulars are as follows (my translations).
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1898 Rules of Laws (Law No. 10) |
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Japanese textThe Japanese text of "Rules of Laws" (Hōrei 法例) as promulgated in 1898 has been vetted against the text of law published by Okamoto Sensuke in Ōsaka immediately after the law was promulgated and enforced in 1898 (see images to the right). I have replaced missing older forms of graphs with their present-day forms in what otherwise appears to be a contemporary text. Structural English translationThe structural English translations of selected articles are mine. CommentaryWords selected for commentary have been highlighted in bold blue in both the Japanese text and the English translations. Other than Article 1, concerning enforcement, I have translated and commented only on articles related to family matters including marriage, children, and inheritance (Articles 13-26), nationality and region, residence versus domicile, and renvoi (when home country law refers back to law of locality) (Articles 27-29), and what happens when an applicable foreign law contravenes notions of public order and decency in Japan (Article 30). Laws of lawsJapan's 1898 "Rules of Laws" was a "laws of laws" -- a law that governs how laws of Japan and other countries were to be applied within Japan. The purpose of such laws is to resolve "conflicts of law" that would arise in a case in which two or more competing laws might apply, such as when a man and woman of different nationalities marry or divorce, whether in the country of the man or of the woman, or in a third country. Most cases that require determinations of applicable law are about "private matters" -- meaning matters concerning individuals in the course of their relationships with other individuals, especially family relationships, including inheritance -- but also matters concerning property, such as real estate and other assets. Determinations of court jurisdictions also fall under the concern of "laws of laws" or laws that resolve "conflict of laws". Determining court jurisdiction and applicable law, however, are different matters, as when a court in one country may be obliged to deal with a case but under the laws of another country. Home country lawLaws of laws are typically invoked in cases that involve persons who belong to a country other than the country in which they are living, and property that is owned by a person who is not living in, and/or does not belong to, the country where the property is located. "Home country" (hongoku 本国) generally refers to "the country one belongs to" (zoku suru kuni 属する国) as a subject, national, or citizen -- i.e., "the country in which one possesses nationality" (kokuseki o motsu kuni 国籍を持つ国). And "home country law" (hongoku-hō 本国法) refers to the laws of that country. RegionalityFor practically all Japanese living in Japan, family matters involve only other Japanese, and property matters involve only assets in Japan. And because Japan's national laws are shared by all provinces and municipalities in Japan -- unlike the United States, where semi-sovereign states have their own penal and civil codes, property laws and sundry licensing systems, and courts. Conflicts arise between the states, and between the states and the federal government, which has its own body of laws, law enforcement agencies, and courts. While today Japan's sovereign dominion consists of a single legal territory, with nationally uniform laws and courts and nationally overseen local police, in the past it had 4 distinct legal territories within its own sovereign dominion -- the prefectural Interior, Taiwan, Karafuto, and Chōsen -- which came with their own laws and bureaucratic practices. And so Imperial Japan required a domestic laws of laws to determine applicable law in private matters between Japanese -- Interiorites, Chosenese, Taiwanese, and Karafutoans -- belonging to different legal territories. See 1918 Common Law for details. |
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朕帝國議會ノ協贊ヲ經タル法例ヲ裁可シ茲ニ之ヲ公布セシム
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I [the emperor] sanction the Rules of Laws which has passed the approval of the Imperial Diet and herein promulgate it.
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法律第十號 法例別册ノ通之ヲ定ム 此法律施行ノ期日ハ勅令ヲ以テ之ヲ定ム 明治二十三年法律第九十七號法例ハ此法律發布ノ日ヨリ之ヲ廢止ス 別册 |
Law No. 10 The Rules of Laws, as per separate volume [supplement], shall be established. The date of enforcement of this law shall be determined by an imperial ordinance. Law No. 97 of Meiji 23 [1890] shall be abrogated from the day of the promulgation of this law. Supplement |
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第一條 法律ハ公布ノ日ヨリ起算シ滿二十日ヲ經テ之ヲ施行ス但法律ヲ以テ之ニ異ナリタル施行時期ヲ定メタルトキハ此限ニ在ラス 臺灣、北海道、沖繩縣其他島地ニ付テハ勅令ヲ以テ特別ノ施行時期ヲ定ムルコトヲ得 |
Article 1 As for a [statute] law, [the government] shall enforce it [when] a full twenty days have passed computed from the day of [its] promulgation; provided, however, that this shall not apply when [the government] determines by law an enforcement date different from this. Regarding Taiwan, Hokkaidō, Okinawa prefecture, and [certain] other insular lands [places], it shall be possible for [the government] to determine a special [specific] enforcement date by imperial ordinance. |
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Taiwan, Hokkaido, Okinawa prefectureHokkaido, Okinawa, and the other insular territories referred to in Paragraph 2 of Article 1 were parts of the Interior. Taiwan became an external part of Japan's sovereign territory in 1895, under the terms of the Treaty of Shimonoseki between Japan and China following the Sino-Japanese war of 1894-1895. See Taiwan, Hokkaido, Okinawa prefecture, et cetera below for further details. |
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第二條 公ノ秩序又ハ善良ノ風俗ニ反セサル慣習ハ法令ノ規定ニ依リテ認メタルモノ及ヒ法令ニ規定ナキ事項ニ關スルモノニ限リ法律ト同一ノ效力ヲ有ス |
Article 2 |
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第三條 人ノ能力ハ其本國法ニ依リテ之ヲ定ム 外國人カ日本ニ於テ法律行爲ヲ爲シタル場合ニ於テ其外國人カ本國法ニ依レハ無能力者タルヘキトキト雖モ日本ノ法律ニ依レハ能力者タルヘキトキハ前項ノ規定ニ拘ハラス之ヲ能力者ト看做ス 前項ノ規定ハ親族法又ハ相續法ノ規定ニ依ルヘキ法律行爲及ヒ外國ニ在ル不動産ニ關スル法律行爲ニ付テハ之ヲ適用セス |
Article 3 |
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第四條 禁治産ノ原因ハ禁治産者ノ本國法ニ依リ其宣告ノ效力ハ宣告ヲ爲シタル國ノ法律ニ依ル [2] 日本ニ住所又ハ居所ヲ有スル外國人ニ付キ其本國法ニ依リ禁治産ノ原因アルトキハ裁判所ハ其者ニ對シテ禁治産ノ宣告ヲ爲スコトヲ得但日本ノ法律カ其原因ヲ認メサルトキハ此限ニ在ラス |
Article 4 |
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第五條 前條ノ規定ハ準禁治産ニ之ヲ準用ス |
Article 5 |
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第六條 外國人ノ生死カ分明ナラサル場合ニ於テハ裁判所ハ日本ニ在ル財産及ヒ日本ノ法律ニ依ルヘキ法律關係ニ付テノミ日本ノ法律ニ依リテ失踪ノ宣告ヲ爲スコトヲ得 |
Article 6 |
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第七條 法律行爲ノ成立及ヒ效力ニ付テハ當事者ノ意思ニ從ヒ其何レノ國ノ法律ニ依ルヘキカヲ定ム 當事者ノ意思カ分明ナラサルトキハ行爲地法ニ依ル |
Article 7 |
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第八條 法律行爲ノ方式ハ其行爲ノ效力ヲ定ムル法律ニ依ル 行爲地法ニ依リタル方式ハ前項ノ規定ニ拘ハラス之ヲ有效トス但物權其他登記スヘキ權利ヲ設定シ又ハ處分スル法律行爲ニ付テハ此限ニ在ラス |
Article 8 |
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第九條 法律ヲ異ニスル地ニ在ル者ニ對シテ爲シタル意思表示ニ付テハ其通知ヲ發シタル地ヲ行爲地ト看做ス 契約ノ成立及ヒ效力ニ付テハ申込ノ通知ヲ發シタル地ヲ行爲地ト看做ス若シ其申込ヲ受ケタル者カ承諾ヲ爲シタル當時申込ノ發信地ヲ知ラサリシトキハ申込者ノ住所地ヲ行爲地ト看做ス |
Article 9 |
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第十條 動産及ヒ不動産ニ關スル物權其他登記スヘキ權利ハ其目的物ノ所在地法ニ依ル 前項ニ掲ケタル權利ノ得喪ハ其原因タル事實ノ完成シタル當時ニ於ケル目的物ノ所在地法ニ依ル |
Article 10 |
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第十一條 事務管理、不當利得又ハ不法行爲ニ因リテ生スル債權ノ成立及ヒ效力ハ其原因タル事實ノ發生シタル地ノ法律ニ依ル 前項ノ規定ハ不法行爲ニ付テハ外國ニ於テ發生シタル事實カ日本ノ法律ニ依レハ不法ナラサルトキハ之ヲ適用セス 外國ニ於テ發生シタル事實カ日本ノ法律ニ依リテ不法ナルトキト雖モ被害者ハ日本ノ法律カ認メタル損害賠償其他ノ處分ニ非サレハ之ヲ請求スルコトヲ得ス |
Article 11 |
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第十二條 債權讓渡ノ第三者ニ對スル效力ハ債務者ノ住所地法ニ依ル |
Article 12 |
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第十三條 婚姻成立ノ要件ハ各當事者ニ付キ其本國法ニ依リ之ヲ定ム但其方式ハ婚姻擧行地ノ法律ニ依ル 前項ノ規定ハ民法第七百七十七條ノ適用ヲ妨ケス |
Article 13 The requisites for the formation of a marriage, for each of the concerned persons (parties), shall be in accordance with their home country laws. However, its formalities shall be in accordance with the locality where the marriage takes place. The provision (stipulation) of the preceding paragraph shall not impede the application of Article 777 of the [1898] Civil Code [Article 741 of 1948 Civil Code]. |
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Article 777 of [1898] Civil CodeArticle 777 of the 1898 Civil Code (Article 741 of the 1948 Civil Code) stipulated as follows (my translation). When desiring to effect a marriage between Japanese in a foreign country, the resident legation or consul of Japan in the country shall, in the case of effecting its notification, similarly apply (mutatis mutandis) the provisions (stipulations) of the preceding 2 articles [Articles 775-776 of the 1898 Civil Code, Articles 739-740 of 1948 Civil Code]. Articles 775-776 (739-740) concern family register actions to be taken when effecting a marriage in Japan. | |||||||
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第十四條 婚姻ノ效力ハ夫ノ本國法ニ依ル 外国人カ女戸主ト入夫婚姻ヲ爲シ又ハ日本人ノ婿養子ト爲リタル場合ニ於テハ婚姻ノ努力ハ日本ノ法律ニ依ル |
Article 14 The effectiveness of a marriage shall be in accordance with the home country law of the husband. In a case in which a foreigner effects a marriage with a female head of household, or becomes an adopted son-in-law of a Japanese, the effectiveness of the marriage shall be in accordance with the laws of Japan. |
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第十五條 夫婦財産制ハ婚姻ノ當時ニ於ケル夫ノ本國法ニ依ル 外国人カ女戸主ト入夫婚姻ヲ爲シ又ハ日本人ノ婿養子ト爲リタル場合ニ於テハ夫婦財産制ハ日本ノ法律ニ依ル |
Article 15 The spousal property system shall be in accordance with the home country law of the husband at the time of the marriage. In a case in which a foreigner effects a marriage with a female head of household, or becomes an adopted son-in-law of a Japanese, the spousal property system shall be in accordance with the laws of Japan. |
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Purpose of Paragraphs 1 of Articles 14 and 15Paragraphs 1 of Articles 14 and 15 were not really necessary, since foreigners who became the entering husband of a female head-of-household, or an adopted son-in-law of a Japanese, became Japanese -- hence the applicability of Japanese laws in the case of the effectiveness of their marriages or the treatment of spousal property. I would guess that the paragraphs were included for the sake of clarification. They were deleted from revisions of the law after the Pacific War (see below). |
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第十六條 離婚ハ其原因タル事實ノ發生シタル時ニ於ケル夫ノ本國法ニ依ル但裁判所ハ其原因タル事實カ日本ノ法律ニ依ルモ離婚ノ原因タルトキニ非サレハ離婚ノ宣告ヲ爲スコトヲ得ス |
Article 16 Divorce shall be in accordance with the home country law of the husband at the time the facts of its cause engender [arise]. Provided that a court [in Japan] shall be able to effect a pronouncement [adjudication] of divorce when the facts of its cause did not exist pursuant to the laws of Japan at the time of the cause of divorce. |
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第十七條 子ノ嫡出ナルヤ否ヤハ其出生ノ當時母ノ夫ノ屬シタル國ノ法律ニ依リテ之ヲ定ム若シ其夫カ子ノ出生前ニ死亡シタルトキハ其最後ニ屬シタル國ノ法律ニ依リテ之ヲ定ム |
Article 17 Whether a child is of legal issue, or not, shall be determined in accordance with the laws of the country to which the husband of the mother belonged at the time of its birth. If the husband died before the child's birth, then its [legitimacy] shall be determined by the laws of the country to which he last belonged. |
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LegitimacyA child's "legitimacy" is determined by the relationship between its parents and whether its parents have recognized (acknowledged) their paternity. Ordinarily, a child born to a married woman is assumed to have been fathered by her husband, and thus be "legitimate" -- whereas a child born out of wedlock, or born in wedlock but not recognized (acknowledged) by one or the other (or both) of its parents, would be "illegitimate". Ordinarily, giving birth to a child is taken as evidence of the mother's recognition (acknowledgement). Maternal recognition becomes an issue only when the birth is not witnessed and for some reason the identity of its mother is not clear. Paternal recognition (acknowledgement) is another matter. While the father of a child born to a married woman is generally assumed to be her husband, laws vary as to formalities, if any, for confirming paternity. Article 17 stipulates that the laws of the country to which the woman's husband belongs will apply -- i.e., the laws of the country with with he is affiliated as a subject, national, or citizen. Regarding the assumption that the mother's husband is the child's father, note that the law says "the mother's husband" rather than "the child's father". This becomes an issue in Japan, where the Civil Code presumes that a child conceived by a woman during her marriage is that of her husband (Article 812 of 1898 Civil Code, Article 772 of 1948 Civil Code). Paragraph 1 of this article furthermore presumes that a child born 200 days or more after the marriage was formed, or within 300 days after the marriage was dissolved, was conceived during the marriage. As of this writing, these issues are being debated in government committees and in courts, but a divorced women must still wait 6 months to remarry (Article 733 of 1948 revision of 1898 Civil Code). A husband who questions the paternity of a child born to his wife, and has reason to disavow the assumed recognition (acknowledgement), can bring the matter before a family court. Today courts have recourse to DNA testing to resolve paternity issues. This article concerns the legitimacy of a child born to a married mother. Article 18 (see next) determined applicable law in the case of a "privately-born-child" -- i.e., a child born to an unmarried woman. |
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第十八條 子ノ認知ノ要件ハ其父又ハ母ニ關シテハ認知ノ當時父又ハ母ノ屬スル國ノ法律ニ依リテ之ヲ定メ其子ニ關シテハ認知ノ當時子ノ屬スル國ノ法律ニ依リテ之ヲ定ム 認知ノ效力ハ父又ハ母ノ本國法ニ依ル |
Article 18 As for the requisites for acknowledgement of a privately-born [out-of-wedlock] child -- with regard to its father or mother, [they = the requisites] shall be determined in accordance with the laws of the country to which the father or the mother belongs at the time of acknowledgement -- and with regard to the child, [they = requisites] shall be determined in accordance with the country to which the child belongs at the time of acknowledgement. The effectiveness of an acknowledgement shall be in accordance with the home country law of the father or the mother. |
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第十九條 養子縁組ノ要件ハ各當事者ニ付キ其本國法ニ依リテ之ヲ定ム 養子縁組ノ效力及ヒ離縁ハ養親ノ本國法ニ依ル |
Article 19 Requisites for adopted-child alliances shall be determined in accordance with the home country laws of each concerned person (party). The effectuation and dissolution of an adopted-child alliance shall be according to the home country law of the adopting parents. |
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第二十條 親子間ノ法律關係ハ父ノ本國法ニ依ル若シ父アラサルトキハ母ノ本國法ニ依ル |
Article 20 The legal relationship between parents and a child shall be in accordance with the father's home country law. If there is no father, then it shall be in accordance with the mother's home country law. |
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第二十一條 扶養ノ義務ハ扶養義務者ノ本國法ニ依リテ之ヲ定ム |
Article 21 The obligations of fostering [a child] shall be determined in accordance with the home country law of the person with the obligation to foster [= fosterer]. |
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第二十二條 前九條ニ掲ケタルモノノ外親族關係及ヒ之ニ因リテ生スル權利義務ハ當事者ノ本國法ニ依リテ之ヲ定ム |
Article 22 Kin relationships other than [those] raised (mentioned) in the foregoing 9 articles [Articles 13-21], and the rights and duties (obligations) engendered by [those relationships], shall be in accordance with the home country laws of the concerned persons (parties). |
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第二十三條 後見ハ被後見人ノ本國法ニ依ル 日本ニ住所又ハ居所ヲ有スル外國人ノ後見ハ其本國法ニ依レハ後見開始ノ原因アルモ後見ノ事務ヲ行フ者ナキトキ及ヒ日本ニ於テ禁治産ノ宣告アリタルトキニ限リ日本ノ法律ニ依ル |
Article 23 Guardianship shall be in accordance with the home country law of the person to be guarded (protege, ward, charge, dependent). As for the guardianship of a foreigner (alien, other-country person who possess a domicile or residence in Japan, [it] shall be in accordance with the laws of Japan, only when in accordance with the home-country law of the person [in need of guardianship] there is cause for commencment of guardianship but no person to carry out the administration of guardianship, and when in Japan there has been a pronouncement of incompentency [regarding the person who would be the guardian]. |
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第二十四條 前條ノ規定ハ保佐ニ之ヲ準用ス |
Article 24 The provisions of the previous article shall similarly apply (mutatis mutandis) to [the determination of] a conservator [curator] [in the case of an adult in need of assistance]. |
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第二十五條 第二十五條 相續ハ被相續人ノ本國法ニ依ル |
Article 25 Succession (Inheritance) shall be in accordance with the home country law of the successee (inheritee). |
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第二十六條 遺言ノ成立及ヒ效力ハ其成立ノ當時ニ於ケル遺言者ノ本國法ニ依ル 遺言ノ取消ハ其當時ニ於ケル遺言者ノ本國法ニ依ル 前二項ノ規定ハ遺言ノ方式ニ付キ行爲地法ニ依ルコトヲ妨ケス |
Article 26 The establishment and effectiveness of a will (testament) shall be in accordance with the home country law of the testator at the time of its establishment. The nullification (revocation) of the well (testament) shall be in accorance with the home country law of the testator at the time. The stipulations of the preceding 2 paragraphs shall not impede actions in accordance with the laws of the locality regarding formalities of the will (testament). |
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第二十七條 當事者ノ本國法ニ依ルヘキ場合ニ於テ其當事者カ二箇以上ノ國籍ヲ有スルトキハ最後ニ取得シタル國籍ニ依リテ其本國法ヲ定ム但其一カ日本ノ國籍ナルトキハ日本ノ法律ニ依ル 國籍ヲ有セサル者ニ付テハ其住所地法ヲ以テ本國法ト看做ス其住所カ知レサルトキハ其居所地法ニ依ル 地方ニ依リ法律ヲ異ニスル國ノ人民ニ付テハ其者ノ屬スル地方ノ法律ニ依ル |
Article 27 When, in the case (event) [of a matter to be determined] in accordance with the home country law of the concerned person (party), the concerned person (party) possesses two or more nationalities, [the court] shall determine the home country law in accordance with the nationality most lately [recently] acquired. Provided that, when one of them is the nationality of Japan, [the matter] shall be [determined] in accordance with the laws of Japan. Concerning a person who does not possess a nationality, [the court] shall regard [take, adopt] the home country law on the basis of the [person's] domicile. When the person's domicile is not known, then [the determination of the court] shall be in accordance with the law of the [person's] residence. Concerning a person of a country in which laws differ according to region, [the court's determination] shall be in accordance with the laws of the region to which [the person] belongs (with which [the person] is affiliated). |
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Dual nationalityIn the spring of 1898 -- when the new 30-article Rules of Laws came into effect to facilitate the application or not of the new Civil Code and Family Register Law in international private matters -- Japan was nearly a year away from the promulgation and enforcement of its first Nationality Law by that name. Until this point, people who belonged to Japan as a matter of legal status were "people" (jinmin 人民), "nationals" (kokumin 国民), and "subjects" (shinmin 臣民) in the preface to the 1871 Family Register Law enforced from 1872. The 1873 proclamation on alliances of marriage and adoption with foreigners referred to the condition of belonging to Japan as "the standing of being Japanese" (Nihonjin taru no bungen 日本人タルノ分限). The terms used in status articles of the the 1890 Civil Code, which never came into effect, and in the 1890 precursor of the Rules of Laws, were "national standing" (kokumin bungen 国民分限) and "standing of Japanese" (日本人の分限). The 1898 Rules of Laws spoke of "the country to which (a person) belongs" (zoku shitaru kuni 屬シタル國), which is still (but less often) used today to characterize the legal affiliation with a state entity now universally called "nationality" (kokuseki 国籍). But as seen in Article 27, the 1898 Rules of Laws also spoke of "nationality" -- and, like its 1890 precursor, it recognized that some Japanese might also possess the nationality of another country. Multiple nationality continues to be recognized in Japan's 2007 Common Rules Law concerning application of laws (see below). |
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第二十八條 當事者ノ住所地法ニ依ルヘキ場合ニ於テ其住所カ知レサルトキハ其居所地法ニ依ル 前條第一項及ヒ第三項ノ規定ハ當事者ノ住所地法ニ依ルヘキ場合ニ之ヲ準用ス |
Article 28 When, in the case (event) [of a matter] that is to be in accordance with the laws of the locality of the domicile of the concerned person (party), the domicile is not known, [the matter] shall be [determined] in accordance with the laws of the locality of the residence. The provisions (stipulations) of Paragraph 1 and Paragraph 3 of the preceding article [Article 27], shall similarly apply [mutatis mutandis] to in the case (event) they are to be in accordance with the laws of the locality of the domicile of the concerned person (party). |
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第二十九條 當事者ノ本國法ニ依ルヘキ場合ニ於テ其國ノ法律ニ從ヒ日本ノ法律ニ依ルヘキトキハ日本ノ法律ニ依ル |
Article 29 When, in the case (event) [a matter] is to be [decided] in accordance with the home country law of the concerned person (party), in following that country's law [the matter] is to be [decided] in accordance with the laws of Japan, then [it] shall be decided in accordance with the laws of Japan. |
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第三十條 外國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 |
Article 30 When in the case (event) [a matter] is to be [decided] in accordance with the laws of a foreign country, the stipulation [in the foreign law] is contrary to public order and good morals [in Japan], then do not apply it. |
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Revisions of 1898 Rules of Laws
The original 1898 Rules of Laws and its 1942 revision were sanctioned and promulgated by the reigning emperor, in accordance with the legislative system that continued through 2 May 1947, under the 1890 Meiji Constitution and the Imperial Diet. Revisions from 1948 through 2000 were enacted by the Diet, in accordance with the new legislative system under the 1947 Shōwa Constitution, which came into force from 3 May 1947. Under the 1890 system, while imperial promulgation was concomitant with imperial sanction, laws were effectively promulgated by publication in the Official Gazette (Kanpō) -- as they are today under the 1947 system.
The 1898 Rules of Laws underwent the following revisions, beginning with the 1942 wartime and 1948 postwar revisions. The 1948 and 2000 revisions, highlighted in bold, are introduced below.
Rules of Laws (法例 Hōrei)
公布：明治３１年６月２１日法律第１０号
施行：明治３１年７月１６日
Enforced from 16 July 1898 by Law No. 10 of 21 June 1898
改正：昭和１７年２月１２日法律第７号
施行：昭和１７年３月１日
Revised from 1 March 1942 by Law No. 7 of 12 February 1942
改正：昭和２２年１２月２２日法律第２２３号
施行：昭和２３年１月１日
Revised from 1 January 1948 by Law No. 223 of 12 December 1947
改正：昭和３９年６月１０日法律第１００号
施行：昭和３９年８月２日
Revised from 2 August 1964 by Law No. 100 of 10 June 1964
改正：昭和６１年６月１２日法律第８４号
施行：昭和６１年９月１日
Revised from 1 September 1986 by Law No. 84 of 12 June 1986
改正：平成元年６月２８日法律第２７号
施行：平成２年１月１日
Revised from 1 January 1990 by Law No. 27 of 28 June 1989
改正：平成１１年１２月８日法律第１５１号
施行：平成１２年４月１日
Revised from 1 April 2000 by Law No. 151 of 8 December 1999
全部改正による失効：平成１８年６月２１日法律第７８号
施行：平成１９年１月１日
Lost effectiveness due to its total revision and replacement by
Common Rules Law concerning application of laws (Law No. 78 of 21 June 2006)
Enforced from 1 January 2007
1948 revision of 1898 Rules of Laws
Revised by Law No. 223 of 12 December 1947
Revision enforced from 1 January 1948
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1898 Rules of Laws (Law No. 10) |
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Japanese textThe Japanese text is adapted from a Wikisource version which I have not yet vetted against an official copy. I have, however, vetted it against a copy of the original 1898 law as published in 1898, and the two texts are practically identical with differences as noted. I have replaced missing older forms of graphs with their present-day forms in what otherwise appears to be a contemporary text. Structural English translationThe structural English translations of selected articles are mine. CommentaryWords selected for commentary have been highlighted in bold blue in both the Japanese text and the English translations. The 1948 revision is practically identical to the 1898 edition. While many of Japan's basic laws were radically revised during the Allied Occupation of Japan (1945-1952), the rules governing applicable law did not change. The only changes are mechanical -- a reference to an article in the Civil Code which had been renumbered was modified (Article 13), and clauses pertaining to entering husbands and adopted sons-in-law -- which were no longer recognized -- were deleted (Articles 14-15). |
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| 法例 | Rules of Laws |
| Japanese text | Structural translation |
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第一條 法律ハ公布ノ日ヨリ起算シ滿二十日ヲ經テ之ヲ施行ス但法律ヲ以テ之ニ異ナリタル施行時期ヲ定メタルトキハ此限ニ在ラス 臺灣、北海道、沖繩縣其他島地ニ付テハ勅令ヲ以テ特別ノ施行時期ヲ定ムルコトヲ得 |
Article 1 As for a [statute] law, [the government] shall enforce it [when] a full twenty days have passed computed from the day of [its] promulgation; provided, however, that this shall not apply when [the government] determines by law an enforcement date different from this. Regarding Taiwan, Hokkaidō, Okinawa prefecture, and [certain] other insular lands [places], it shall be possible for [the government] to determine a special [specific] enforcement date by imperial ordinance. |
Taiwan, Hokkaido, Okinawa prefectureHokkaido, Okinawa, and the other insular territories referred to in Paragraph 2 of Article 1 were parts of the Interior. Taiwan became an external part of Japan's sovereign territory in 1895, under the terms of the Treaty of Shimonoseki between Japan and China following the Sino-Japanese war of 1894-1895. Paragraph 2 of Article 1 appears to have remained in the 1898 Rules of Laws through at least the 1986 revision, though it lost its meaning when Japan surrendered to the Allied Powers in 1945. Under the terms of surrender, Okinawa -- which had been captured and occupied by the United States -- was separated from Japan, and Japan surrendered Taiwan to the Republic of China. Hokkaido remained part of Occupied Japan. Imperial sanctions ended when the new constitution came into effect on 3 May 1947. See Taiwan, Hokkaido, Okinawa prefecture, et cetera below for further details. |
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第二條 公ノ秩序又ハ善良ノ風俗ニ反セサル慣習ハ法令ノ規定ニ依リテ認メタルモノ及ヒ法令ニ規定ナキ事項ニ關スルモノニ限リ法律ト同一ノ效力ヲ有ス |
Article 2 |
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第三條 人ノ能力ハ其本國法ニ依リテ之ヲ定ム 外國人カ日本ニ於テ法律行爲ヲ爲シタル場合ニ於テ其外國人カ本國法ニ依レハ無能力者タルヘキトキト雖モ日本ノ法律ニ依レハ能力者タルヘキトキハ前項ノ規定ニ拘ハラス之ヲ能力者ト看做ス 前項ノ規定ハ親族法又ハ相續法ノ規定ニ依ルヘキ法律行爲及ヒ外國ニ在ル不動産ニ關スル法律行爲ニ付テハ之ヲ適用セス |
Article 3 |
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第四條 禁治産ノ原因ハ禁治産者ノ本國法ニ依リ其宣告ノ效力ハ宣告ヲ爲シタル國ノ法律ニ依ル [2] 日本ニ住所又ハ居所ヲ有スル外國人ニ付キ其本國法ニ依リ禁治産ノ原因アルトキハ裁判所ハ其者ニ對シテ禁治産ノ宣告ヲ爲スコトヲ得但日本ノ法律カ其原因ヲ認メサルトキハ此限ニ在ラス |
Article 4 |
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第五條 前條ノ規定ハ準禁治産ニ之ヲ準用ス |
Article 5 |
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第六條 外國人ノ生死カ分明ナラサル場合ニ於テハ裁判所ハ日本ニ在ル財産及ヒ日本ノ法律ニ依ルヘキ法律關係ニ付テノミ日本ノ法律ニ依リテ失踪ノ宣告ヲ爲スコトヲ得 |
Article 6 |
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第七條 法律行爲ノ成立及ヒ效力ニ付テハ當事者ノ意思ニ從ヒ其何レノ國ノ法律ニ依ルヘキカヲ定ム 當事者ノ意思カ分明ナラサルトキハ行爲地法ニ依ル |
Article 7 |
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第八條 法律行爲ノ方式ハ其行爲ノ效力ヲ定ムル法律ニ依ル 行爲地法ニ依リタル方式ハ前項ノ規定ニ拘ハラス之ヲ有效トス但物權其他登記スヘキ權利ヲ設定シ又ハ處分スル法律行爲ニ付テハ此限ニ在ラス |
Article 8 |
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第九條 法律ヲ異ニスル地ニ在ル者ニ對シテ爲シタル意思表示ニ付テハ其通知ヲ發シタル地ヲ行爲地ト看做ス 契約ノ成立及ヒ效力ニ付テハ申込ノ通知ヲ發シタル地ヲ行爲地ト看做ス若シ其申込ヲ受ケタル者カ承諾ヲ爲シタル當時申込ノ發信地ヲ知ラサリシトキハ申込者ノ住所地ヲ行爲地ト看做ス |
Article 9 |
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第十條 動産及ヒ不動産ニ關スル物權其他登記スヘキ權利ハ其目的物ノ所在地法ニ依ル 前項ニ掲ケタル權利ノ得喪ハ其原因タル事實ノ完成シタル當時ニ於ケル目的物ノ所在地法ニ依ル |
Article 10 |
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第十一條 事務管理、不當利得又ハ不法行爲ニ因リテ生スル債權ノ成立及ヒ效力ハ其原因タル事實ノ發生シタル地ノ法律ニ依ル 前項ノ規定ハ不法行爲ニ付テハ外國ニ於テ發生シタル事實カ日本ノ法律ニ依レハ不法ナラサルトキハ之ヲ適用セス 外國ニ於テ發生シタル事實カ日本ノ法律ニ依リテ不法ナルトキト雖モ被害者ハ日本ノ法律カ認メタル損害賠償其他ノ處分ニ非サレハ之ヲ請求スルコトヲ得ス |
Article 11 |
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第十二條 債權讓渡ノ第三者ニ對スル效力ハ債務者ノ住所地法ニ依ル |
Article 12 |
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第十三條 婚姻成立ノ要件ハ各當事者ニ付キ其本國法ニ依リテ之ヲ定ム但其方式ハ婚姻擧行地ノ法律ニ依ル 前項ノ規定ハ民法第七百四十一條ノ適用ヲ妨ケス |
Article 13 The requisites for the formation of a marriage, for each of the concerned persons (parties), shall be in accordance with their home country laws. However, its formalities shall be in accordance with the locality where the marriage takes place. The provision (stipulation) of the preceding paragraph shall not impede the application of Article 741 of the [1948] Civil Code. |
Article 741 of [1948] Civil CodeArticle 471 of the 1948 Civil Code (Article 777 of the 1898 Civil Code) stipulates as follows (my translation). When desiring to effect a marriage between Japanese in a foreign country, the resident legation or consul of Japan in the country shall, in the case of effecting its notification, apply mutatis mutandis the provisions (stipulations) of the preceding 2 articles [Articles 739-740 of the 1948 Civil Code, Articles 775-776 of 1898 Civil Code]. Articles 739-740 (775-776) concern family register actions to be taken when effecting a marriage in Japan. |
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第十四條 婚姻ノ效力ハ夫ノ本國法ニ依ル |
Article 14 The effectiveness of a marriage shall be in accordance with the home country law of the husband. |
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The main clause of this article remained the same as in the 1898 law. However, Paragraph 1, concerning foreigners who marry a female head of household and become an entering husband, or become an adopted son-in-law of a Japanese, is deleted in this postwar revision of the law. |
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第十五條 夫婦財産制ハ婚姻ノ當時ニ於ケル夫ノ本國法ニ依ル |
Article 15 The spousal property system shall be in accordance with the home country law of the husband at the time of the marriage. |
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The main clause of this article remained the same as in the 1898 law. However, Paragraph 1, concerning foreigners who marry a female head of household and become an entering husband, or become an adopted son-in-law of a Japanese, is deleted in this postwar revision of the law. |
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第十六條 離婚ハ其原因タル事實ノ發生シタル時ニ於ケル夫ノ本國法ニ依ル但裁判所ハ其原因タル事實カ日本ノ法律ニ依ルモ離婚ノ原因タルトキニ非サレハ離婚ノ宣告ヲ爲スコトヲ得ス |
Article 16 Divorce shall be in accordance with the home country law of the husband at the time the facts of its cause engender [arise]. Provided that a court [in Japan] shall be able to effect a pronouncement [adjudication] of divorce when the facts of its cause did not exist pursuant to the laws of Japan at the time of the cause of divorce. |
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第十七條 子ノ嫡出ナルヤ否ヤハ其出生ノ當時母ノ夫ノ屬シタル國ノ法律ニ依リテ之ヲ定ム若シ其夫カ子ノ出生前ニ死亡シタルトキハ其最後ニ屬シタル國ノ法律ニ依リテ之ヲ定ム |
Article 17 Whether a child is of legal issue, or not, shall be determined in accordance with the laws of the country to which the husband of the mother belonged at the time of its birth. If the husband died before the child's birth, then its [legitimacy] shall be determined by the laws of the country to which he last belonged. |
LegitimacyA child's "legitimacy" is determined by the relationship between its parents and whether its parents have recognized (acknowledged) their paternity. Ordinarily, a child born to a married woman is assumed to have been fathered by her husband, and thus be "legitimate" -- whereas a child born out of wedlock, or born in wedlock but not recognized (acknowledged) by one or the other (or both) of its parents, would be "illegitimate". Ordinarily, giving birth to a child is taken as evidence of the mother's recognition (acknowledgement). Maternal recognition becomes an issue only when the birth is not witnessed and for some reason the identity of its mother is not clear. Paternal recognition (acknowledgement) is another matter. While the father of a child born to a married woman is generally assumed to be her husband, laws vary as to formalities, if any, for confirming paternity. Article 17 stipulates that the laws of the country to which the woman's husband belongs will apply -- i.e., the laws of the country with with he is affiliated as a subject, national, or citizen. Regarding the assumption that the mother's husband is the child's father, note that the law says "the mother's husband" rather than "the child's father". This becomes an issue in Japan, where the Civil Code presumes that a child conceived by a woman during her marriage is that of her husband (Article 812 of 1898 Civil Code, Article 772 of 1948 Civil Code). Paragraph 1 of this article furthermore presumes that a child born 200 days or more after the marriage was formed, or within 300 days after the marriage was dissolved, was conceived during the marriage. As of this writing, these issues are being debated in government committees and in courts, but a divorced women must still wait 6 months to remarry (Article 733 of 1948 revision of 1898 Civil Code). A husband who questions the paternity of a child born to his wife, and has reason to disavow the assumed recognition (acknowledgement), can bring the matter before a family court. Today courts have recourse to DNA testing to resolve paternity issues. This article concerns the legitimacy of a child born to a married mother. Article 18 (see next) determined applicable law in the case of a "privately-born-child" -- i.e., a child born to an unmarried woman. |
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第十八條 子ノ認知ノ要件ハ其父又ハ母ニ關シテハ認知ノ當時父又ハ母ノ屬スル國ノ法律ニ依リテ之ヲ定メ其子ニ關シテハ認知ノ當時子ノ屬スル國ノ法律ニ依リテ之ヲ定ム 認知ノ效力ハ父又ハ母ノ本國法ニ依ル |
Article 18 As for the requisites for acknowledgement of a privately-born [out-of-wedlock] child -- with regard to its father or mother, [they = the requisites] shall be determined in accordance with the laws of the country to which the father or the mother belongs at the time of acknowledgement -- and with regard to the child, [they = requisites] shall be determined in accordance with the country to which the child belongs at the time of acknowledgement. The effectiveness of an acknowledgement shall be in accordance with the home country law of the father or the mother. |
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第十九條 養子書gノ要件ハe當事者ニ付キ其本國法ニ依リテ之ヲ定ム 養子縁組ノ效力及ヒ離縁ハ養em本國法ニ依ル |
Article 19 Requisites for adopted-child alliances shall be determined in accordance with the home country laws of each concerned person (party). The effectuation and dissolution of an adopted-child alliance shall be according to the home country law of the adopting parents. |
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第二十條 親子間ノ法律關係ハ父ノ本國法ニ依ル若シ父アラサルトキハ母ノ本國法ニ依ル |
Article 20 The legal relationship between parents and a child shall be in accordance with the father's home country law. If there is no father, then it shall be in accordance with the mother's home country law. |
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第二十一條 扶養ノ義務ハ扶養義務者ノ本國法ニ依リテ之ヲ定ム |
Article 21 The obligations of fostering [a child] shall be determined in accordance with the home country law of the person with the obligation to foster [= fosterer]. |
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第二十二條 前九條ニ掲ケタルモノノ外親族關係及ヒ之ニ因リテ生スル權利義務ハ當事者ノ本國法ニ依リテ之ヲ定ム |
Article 22 Kin relationships other than [those] raised (mentioned) in the foregoing 9 articles [Articles 13-21], and the rights and duties (obligations) engendered by [those relationships], shall be in accordance with the home country laws of the concerned persons (parties). |
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第二十三條 後見ハ被後見人ノ本國法ニ依ル 日本ニ住所又ハ居所ヲ有スル外國人ノ後見ハ其本國法ニ依レハ後見開始ノ原因アルモ後見ノ事務ヲ行フ者ナキトキ及ヒ日本ニ於テ禁治産ノ宣告アリタルトキニ限リ日本ノ法律ニ依ル |
Article 23 Guardianship shall be in accordance with the home country law of the person to be guarded (protege, ward, charge, dependent). As for the guardianship of a foreigner (alien, other-country person who possesses a domicile or residence in Japan, [it] shall be in accordance with the laws of Japan, only when in accordance with the home-country law of the person [in need of guardianship] there is cause for commencment of guardianship but no person to carry out the administration of guardianship, and when in Japan there has been a pronouncement of incompentency [regarding the person who would be the guardian]. |
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第二十四條 前條ノ規定ハ保佐ニ之ヲ準用ス |
Article 24 The provisions of the previous article shall similarly apply (mutatis mutandis) to [the determination of] a conservator [curator] [in the case of an adult in need of assistance]. |
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第二十五條 第二十五條 相續ハ被相續人ノ本國法ニ依ル |
Article 25 Succession (Inheritance) shall be in accordance with the home country law of the successee (inheritee). |
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第二十六條 遺言ノ成立及ヒ效力ハ其成立ノ當時ニ於ケル遺言者ノ本國法ニ依ル 遺言ノ取消ハ其當時ニ於ケル遺言者ノ本國法ニ依ル 前二項ノ規定ハ遺言ノ方式ニ付キ行爲地法ニ依ルコトヲ妨ケス |
Article 26 The establishment and effectiveness of a will (testament) shall be in accordance with the home country law of the testator at the time of its establishment. The nullification (revocation) of the well (testament) shall be in accorance with the home country law of the testator at the time. The stipulations of the preceding 2 paragraphs shall not impede actions in accordance with the laws of the locality regarding formalities of the will (testament). |
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第二十七條 當事者ノ本國法ニ依ルヘキ場合ニ於テ其當事者カ二箇以上ノ國籍ヲ有スルトキハ最後ニ取得シタル國籍ニ依リテ其本國法ヲ定ム但其一カ日本ノ國籍ナルトキハ日本ノ法律ニ依ル 國籍ヲ有セサル者ニ付テハ其住所地法ヲ以テ本國法ト看做ス其住所カ知レサルトキハ其居所地法ニ依ル 地方ニ依リ法律ヲ異ニスル國ノ人民ニ付テハ其者ノ屬スル地方ノ法律ニ依ル |
Article 27 When, in the case (event) [of a matter to be determined] in accordance with the home country law of the concerned person (party), the concerned person (party) possesses two or more nationalities, [the court] shall determine the home country law in accordance with the nationality most lately [recently] acquired. Provided that, when one of them is the nationality of Japan, [the matter] shall be [determined] in accordance with the laws of Japan. Concerning a person who does not possess a nationality, [the court] shall regard [take, adopt] the home country law on the basis of the [person's] domicile. When the person's domicile is not known, then [the determination of the court] shall be in accordance with the law of the [person's] residence. Concerning a person of a country in which laws differ according to region, [the court's determination] shall be in accordance with the laws of the region to which [the person] belongs (with which [the person] is affiliated). |
Dual nationalityIn the spring of 1898 -- when the new 30-article Rules of Laws came into effect to faciliate the application or not of the new Civil Code and Family Register Law in international private matters -- Japan was nearly a year away from the promulgation and enforcement of its first Nationality Law by that name. Until this point, people who belonged to Japan as a matter of legal status were "people" (jinmin 人民), "nationals" (kokumin 国民), and "subjects" (shinmin 臣民) in the preface to the 1871 Family Register Law enforced from 1872. The 1873 proclamation on alliances of marriage and adoption with foreigners referred to the condition of belonging to Japan as "the standing of being Japanese" (Nihonjin taru no bungen 日本人タルノ分限). The terms used in status articles of the the 1890 Civil Code, which never came into effect, and in the 1890 precursor of the Rules of Laws, were "national standing" (kokumin bungen 国民分限) and "standing of Japanese" (日本人の分限). The 1898 Rules of Laws spoke of "the country to which (a person) belongs" (zoku shitaru kuni 屬シタル國), which is still (but less often) used today to characterize the legal affiliation with a state entity now universally called "nationality" (kokuseki 国籍). But as seen in Article 27, the 1898 Rules of Laws also spoke of "nationality" -- and, like its 1890 precursor, it recognized that some Japanese might also possess the nationality of another country. Multiple nationality continues to be recognized in Japan's 2007 Common Rules Law concerning application of laws (see below). |
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第二十八條 當事者ノ住所地法ニ依ルヘキ場合ニ於テ其住所カ知レサルトキハ其居所地法ニ依ル 前條第一項及ヒ第三項ノ規定ハ當事者ノ住所地法ニ依ルヘキ場合ニ之ヲ準用ス |
Article 28 When, in the case (event) [of a matter] that is to be in accordance with the laws of the locality of the domicile of the concerned person (party), the domicile is not known, [the matter] shall be [determined] in accordance with the laws of the locality of the residence. The provisions (stipulations) of Paragraph 1 and Paragraph 3 of the preceding article [Article 27], shall similarly apply [mutatis mutandis] to in the case (event) they are to be in accordance with the laws of the locality of the domicile of the concerned person (party). |
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第二十九條 當事者ノ本國法ニ依ルヘキ場合ニ於テ其國ノ法律ニ從ヒ日本ノ法律ニ依ルヘキトキハ日本ノ法律ニ依ル |
Article 29 When, in the case (event) [a matter] is to be [decided] in accordance with the home country law of the concerned person (party), in following that country's law [the matter] is to be [decided] in accordance with the laws of Japan, then [it] shall be decided in accordance with the laws of Japan. |
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第三十條 外國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 |
Article 30 When in the case (event) [a matter] is to be [decided] in accordance with the laws of a foreign country, the stipulation [in the foreign law] is contrary to public order and good morals [in Japan], then do not apply it. |
2000 revision of 1898 Rules of Laws
Revision of Law No. 151 of 8 December 1999
Enforced from 1 April 2000
The 1898 law, reflecting all revisions through its final revision effective from 1 April 2000, is as follows.
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1898 Rules of Laws (Law No. 10) |
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Japanese textThe Japanese text is adapted from a copy posted on Nakano Bunko, with reference to a copy on law.e-gov.go.jp (法令データ提供システム or "Law data provision system"), a website maintained by the Ministry of Internal Affairs and Communication (MIC 総務省). Received English translationThe received English translation of this version of the 1898 Rules of Laws has been adopted from cs-trans.biz, a "network of international business resources" which describes itself as "powered by lawyers, academicians, bankers, journalists and translators worldwide". Structural English translationsThe structural English translations, shown in normal blue, are mine. The bold blue or bold green emphasis in these translations is also mine. CommentaryUnless otherwise specified, [square brackets] in received Japanese and English texts reflect my own commentary. Extended commentary is shown in cells below received texts. To facilitate commentary on specific words and phrases in the received text and translation, I have highlighted the words and phrases in various bold colors according the following scheme.
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| 法例 | Rules of Laws | |||
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第一条 法律ハ公布ノ日ヨリ起算シ満二十日ヲ経テ之ヲ施行ス但法律ヲ以テ之ニ異ナリタル施行時期ヲ定メタルトキハ此限ニ在ラス |
Article 1 Laws shall be enforced after 20 days from the promulgation date, except that any law specifies any other time for its enforcement. |
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| Custom | ||||
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第二条 公ノ秩序又ハ善良ノ風俗ニ反セサル慣習ハ法令ノ規定ニ依リテ認メタルモノ及ヒ法令ニ規定ナキ事項ニ関スルモノニ限リ法律ト同一ノ効力ヲ有ス |
Article 2 Customary standards shall, if not disagreeing with public order or morality, have the same effect as a law, as far as it is approved by the provisions of law or applies to matters not provided for in any laws. |
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| Capacity | ||||
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第三条 人ノ能力ハ其本国法ニ依リテ之ヲ定ム ２ 外国人カ日本ニ於テ法律行為ヲ為シタル場合ニ於テ其外国人カ本国法ニ依レハ能力ノ制限ヲ受ケタル者タルヘキトキト雖モ日本ノ法律ニ依レハ能力者タルヘキトキハ前項ノ規定ニ拘ハラス之ヲ能力者ト看做ス ３ 前項ノ規定ハ親族法又ハ相続法ノ規定ニ依ルヘキ法律行為及ヒ外国ニ在ル不動産ニ関スル法律行為ニ付テハ之ヲ適用セス |
Article 3 The capacity of a person shall be determined on the basis of the law of his/her home country. (2) Notwithstanding the provisions of the previous paragraph, a foreign person who would be a person of full capacity under the Japanese law shall be considered as such when performing a juristic act, even if he/she has only limited capacity under the law of his/her home country. (3) The provisions of the previous paragraph shall not apply to any juristic act governed by the family law or the inheritance law, or to any juristic act related to immovables in foreign countries. |
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第四条 後見開始ノ審判ノ原因ハ成年被後見人ノ本国法ニ依リ其審判ノ効力ハ宣告ヲ為シタル国ノ法律ニ依ル ２ 日本ニ住所又ハ居所ヲ有スル外国人ニ付キ其本国法ニ依リ後見開始ノ審判ノ原因アルトキハ裁判所ハ其者ニ対シテ後見開始ノ審判ヲ為スコトヲ得但日本ノ法律カ其原因ヲ認メサルトキハ此限ニ在ラス |
Article 4 The ground for the adjudication of commencement of guardianship shall be governed by the law of the home country of the adult protege, and the effect of such adjudication shall be governed by the law of the adjudicating country. (2) If any foreigner domiciled or residing in Japan has a ground for adjudication of commencement of guardianship under the law of his/her home country, the court may make adjudication upon his/her commencement of guardianship, except that such ground is not approved by the Japanese law. |
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第五条 前条ノ規定ハ保佐開始ノ審判及ビ補助開始ノ審判ニ之ヲ凖用ス |
Article 5 The provisions of the previous article shall similary apply (mutatis mutandis) to adjudications of commencement of curatorship or assistance. |
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第六条 外国人ノ生死カ分明ナラサル場合ニ於テハ裁判所ハ日本ニ在ル財産及ヒ日本ノ法律ニ依ルヘキ法律関係ニ付テノミ日本ノ法律ニ依リテ失踪ノ宣告ヲ為スコトヲ得 |
Article 6 The court may make adjudication upon a foreign person's disappearance under the Japanese law, if it has become unknown whether he/she is alive or not, but such adjudication shall only be related to the property located in Japan and/or the legal relations governed by the Japanese law. |
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第七条 法律行為ノ成立及ヒ効力ニ付テハ当事者ノ意思ニ従ヒ其何レノ国ノ法律ニ依ルヘキカヲ定ム ２ 当事者ノ意思カ分明ナラサルトキハ行為地法ニ依ル |
Article 7 As to the law governing the formation and the effect of a juristic act, the jurisdiction of such governing law shall be determined by the parties of such juristic act. (2) If the parties do not determine such jurisdiction, the law of the venue shall govern. |
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第八条 法律行為ノ方式ハ其行為ノ効力ヲ定ムル法律ニ依ル ２ 行為地法ニ依リタル方式ハ前項ノ規定ニ拘ハラス之ヲ有効トス但物権其他登記スヘキ権利ヲ設定シ又ハ処分スル法律行為ニ付テハ此限ニ在ラス |
Article 8 The formalities of a juristic act shall be governed by the law stipulating the effect of such act. (2) Notwithstanding the provisions of the previous paragraph, the formalities in compliance with the law of the venue shall be good enough, except for the formalities related to juristic acts establishing or disposing of real rights and/or any other rights to be registered. |
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Expression of intention made to person resident in a place governed by a different law |
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第九条 法律ヲ異ニスル地ニ在ル者ニ対シテ為シタル意思表示ニ付テハ其通知ヲ発シタル地ヲ行為地ト看做ス ２ 契約ノ成立及ヒ効力ニ付テハ申込ノ通知ヲ発シタル地ヲ行為地ト看做ス若シ其申込ヲ受ケタル者カ承諾ヲ為シタル当時申込ノ発信地ヲ知ラサリシトキハ申込者ノ住所地ヲ行為地ト看做ス |
Article 9 The jurisdiction from which an intention is expressed and a notice of such intention is issued to a person in another jurisdiction shall be considered to be the venue of that expressed intention. (2) As to formation and/or effect of the contract, the jurisdiction from which an offering notice is issued shall be considered to be the venue. If at the time of acceptance the place where such offer was issued is unknown to the receiver, the jurisdiction of the offerer's domicile shall be considered to be the venue. |
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| Jus in re and other right to be registered | ||||
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第十条 動産及ヒ不動産ニ関スル物権其他登記スヘキ権利ハ其目的物ノ所在地法ニ依ル ２ 前項ニ掲ケタル権利ノ得喪ハ其原因タル事実ノ完成シタル当時ニ於ケル目的物ノ所在地法ニ依ル |
Article 10 Real rights and/or any other rights to be registered in relation to movables and/or immovables shall be governed by the law of the jurisdiction where the concerned object is located. (2) Acquisition and loss of such rights as stipulated in the previous paragraph shall be governed by the law of the jurisdiction where the concerned object was located at the time of fulfillment of the ground for such acquisition or loss. |
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| Formation and effect of obligations caused by operation of law | ||||
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第十一条 事務管理、不当利得又ハ不法行為ニ因リテ生スル債権ノ成立及ヒ効力ハ其原因タル事実ノ発生シタル地ノ法律ニ依ル ２ 前項ノ規定ハ不法行為ニ付テハ外国ニ於テ発生シタル事実カ日本ノ法律ニ依レハ不法ナラサルトキハ之ヲ適用セス ３ 外国ニ於テ発生シタル事実カ日本ノ法律ニ依リテ不法ナルトキト雖モ被害者ハ日本ノ法律カ認メタル損害賠償其他ノ処分ニ非サレハ之ヲ請求スルコトヲ得ス |
Article 11 Formation and/or effect of the creditor's rights based on the administration without mandate, unjust enrichment and/or wrongful acts shall be governed by the law of the jurisdiction where the facts on which such rights are based have occurred. (2) The provisions of the previous paragraph shall not apply to the wrongful acts occurring in foreign countries which would not be wrongful under the Japanese law. (3) Even if the facts occurring in a foreign country would constitute a wrongful act under the Japanese law, the injured party shall not be entitled to claim any other remedy or compensations than those available under the Japanese law. |
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| Assignment of obligation | ||||
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第十二条 債権譲渡ノ第三者ニ対スル効力ハ債務者ノ住所地法ニ依ル |
Article 12 The effect of the transfer of the claims or creditor's rights on third parties shall be governed by the law of the jurisdiction in which the debtor's domicile exists. |
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| Requirements for effective marriage | ||||
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第十三条 婚姻成立ノ要件ハ各当事者ニ付キ其本国法ニ依リテ之ヲ定ム ２ 婚姻ノ方式ハ婚姻挙行地ノ法律ニ依ル ３ 当事者ノ一方ノ本国法ニ依リタル方式ハ前項ノ規定ニ拘ハラズ之ヲ有効トス但日本ニ於テ婚姻ヲ挙行シタル場合ニ於テ当事者ノ一方ガ日本人ナルトキハ此限ニ在ラズ |
Article 13 For each of the marrying parties, the requisites for marriage shall be determined by the law of his/her home country. (2) Formalities of marriage shall be governed by the law of the jurisdiction where the marriage is conducted. (3) Notwithstanding of the provisions of the previous paragraph, the formalities in compliance with the law of the home country of one marrying party shall be good enough, except that the marriage is conducted in Japan involving a Japanese as a marrying party. |
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| Effect of marriage | ||||
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第十四条 婚姻ノ効力ハ夫婦ノ本国法ガ同一ナルトキハ其法律ニ依リ其法律ナキ場合ニ於テ夫婦ノ常居所地法ガ同一ナルトキハ其法律ニ依ル其何レノ法律モナキトキハ夫婦ニ最モ密接ナル関係アル地ノ法律ニ依ル |
Article 14 If the husband and the wife are from the same home country, the effect of the marriage shall be governed by the law of that jurisdiction; if there is no such law but they have a permanent residence in the same jurisdiction, it shall be governed by the law of that jurisdiction; if there is no such law, it shall be governed by the law of the jurisdiction most closely related with the husband and the wife. |
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| Matrimonial property system | ||||
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第十五条 前条ノ規定ハ夫婦財産制ニ之ヲ凖用ス但夫婦ガ其署名シタル書面ニシテ日附アルモノニ依リ左ニ掲ゲタル法律中其何レニ依ルベキカヲ定メタルトキハ夫婦財産制ハ其定メタル法律ニ依ル 一 夫婦ノ一方ガ国籍ヲ有スル国ノ法律 二 夫婦ノ一方ノ常居所地法 三 不動産ニ関スル夫婦財産制ニ付テハ其不動産ノ所在地法 ２ 外国法ニ依ル夫婦財産制ハ日本ニ於テ為シタル法律行為及ビ日本ニ在ル財産ニ付テハ之ヲ善意ノ第三者ニ対抗スルコトヲ得ズ此場合ニ於テ其夫婦財産制ニ依ルコトヲ得ザルトキハ其第三者トノ間ノ関係ニ付テハ夫婦財産制ハ日本ノ法律ニ依ル ３ 外国法ニ依リテ為シタル夫婦財産制ハ日本ニ於テ之ヲ登記シタルトキハ前項ノ規定ニ拘ハラズ之ヲ第三者ニ対抗スルコトヲ得 |
Article 15 The provisions of the previous article shall similarly apply (mutatis mutandis) to the matrimonial property system. However, if by the writing with the signatures and the date the husband and the wife determine which of the following laws shall govern, the matrimonial property system shall be governed by that law. 1. The law of the jurisdiction in which the husband or the wife has his/her citizenship [nationality]. 2. The law of the jurisdiction in which the husband or the wife has his/her permanent [habitual] residence. 3. As to the matrimonial property system for the immovables, the law of the jurisdiction in which such immovables are located. (2) The matrimonial property system based on the law of a foreign country shall not be able to oppose to bona fide third parties in connection with the juristic acts conducted in Japan and/or the properties located in Japan. If such matrimonial property system is not good enough in this case, the matrimonial property system with relation to third parties shall be governed by the Japanese law. (3) Notwithstanding of the provisions of the previous paragraph, the matrimonial property agreement under the law of a foreign country shall be able to oppose to third parties if it is registered in Japan. |
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| Divorce | ||||
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第十六条 第十四条ノ規定ハ離婚ニ之ヲ凖用ス但夫婦ノ一方ガ日本ニ常居所ヲ有スル日本人ナルトキハ離婚ハ日本ノ法律ニ依ル |
Article 16 The provisions of Article 14 shall similarly apply (mutatis mutandis) to divorce. However, if the husband or the wife is a Japanese having a permanent [habitual] residence in Japan, the divorce shall be governed by the Japanese law. |
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Article 16 of the 1948 version (see above) of the Rules of Laws provided that divorce would in principle be in accordance with the husband's home country law. As revised from 1990, the law adopted the principle reflected in the 2000 version shown here, to the effect that notwithstanding the treatment of a divorce of alien couples in Japan, or of Japanese divorcing aliens while habitually residing outside Japan, that Japanese law would apply to divorces between Japanese habitually residing in Japan and aliens. |
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| Legitimate child | ||||
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第十七条 夫婦ノ一方ノ本国法ニシテ子ノ出生ノ当時ニ於ケルモノニ依リ子ガ嫡出ナルトキハ其子ハ嫡出子トス ２ 夫ガ子ノ出生前ニ死亡シタルトキハ其死亡ノ当時ノ夫ノ本国法ヲ前項ノ夫ノ本国法ト看做ス |
Article 17 If at the time of birth a child was legitimated under the law of the home country of the husband or the wife, the child shall be a legitimate child. (2) If the husband died before the birth of the child, the law of his home country at the time of his death shall be considered as the law of his home country stipulated in the previous paragraph. |
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| Acknowledgment of illegitimate child | ||||
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第十八条 嫡出ニ非ザル子ノ親子関係ノ成立ハ父トノ間ノ親子関係ニ付テハ子ノ出生ノ当時ノ父ノ本国法ニ依リ母トノ間ノ親子関係ニ付テハ其当時ノ母ノ本国法ニ依ル子ノ認知ニ因ル親子関係ノ成立ニ付テハ認知ノ当時ノ子ノ本国法ガ其子又ハ第三者ノ承諾又ハ同意アルコトヲ認知ノ要件トスルトキハ其要件ヲモ備フルコトヲ要ス ２ 子ノ認知ハ前項前段ニ定ムル法律ノ外認知ノ当時ノ認知スル者又ハ子ノ本国法ニ依ル此場合ニ於テ認知スル者ノ本国法ニ依ルトキハ同項後段ノ規定ヲ凖用ス ３ 父ガ子ノ出生前ニ死亡シタルトキハ其死亡ノ当時ノ父ノ本国法ヲ第一項ノ父ノ本国法ト看做シ前項ニ掲ゲタル者ガ認知前ニ死亡シタルトキハ其死亡ノ当時ノ其者ノ本国法ヲ同項ノ其者ノ本国法ト看做ス |
Article 18 As to the formation of the parental relations to an illegitimate child, the relations between a father and a child shall be governed by the law of the father's home country at the time of birth; the relations between a mother and a child shall be governed by the law of the mother's home country at that time. As to the formation of the parental relations based on the acknowledgement of paternity, if at the time of acknowledgement the law of the child's home country requires a consent or approval from that child or any third party for the acknowledgement, such requirements shall necessarily be fulfilled. (2) Apart from the laws mentioned in the first half of the previous paragraph, acknowledgement of paternity shall be governed by the law of the home country of the acknowledging person or the child at the time of acknowledgement. In this case, if the law of the home country of the acknowledging person governs, the provisions of the latter half of the same paragraph shall similarly apply (mutatis mutandis). (3) If the father died before the birth of the child, the law of the father's home country at the time of his death shall be considered as the law of the father's home country stipulated in paragraph 1; if the person mentioned in the previous paragraph died before acknowledgement, the law of his/her home country at the time of his/her death shall be considered as the law of his/her home country stipulated in the same paragraph. |
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第十九条 子ハ準正ノ要件タル事実ノ完成ノ当時ノ父若クハ母又ハ子ノ本国法ニ依リ準正ガ成立スルトキハ嫡出子タル身分ヲ取得ス ２ 前項ニ掲ゲタル者ガ準正ノ要件タル事実ノ完成前ニ死亡シタルトキハ其死亡ノ当時ノ其者ノ本国法ヲ同項ノ其者ノ本国法ト看做ス |
Article 19 If legitimation is established under the law of the home country of the father or the mother or the child at the time of fulfillment of the requirements for legitimation, the child shall acquire the status of the legitimate child. (2) If the person mentioned in the previous paragraph died before fulfillment of the requirements for legitimation, the law of his/her home country at the time of his/her death shall be considered as the law of his/her home country stipulated in the same paragraph. |
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| Adoption and dissolution thereof | ||||
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第二十条 養子縁組ハ縁組ノ当時ノ養親ノ本国法ニ依ル若シ養子ノ本国法ガ養子縁組ノ成立ニ付キ養子若クハ第三者ノ承諾若クハ同意又ハ公ノ機関ノ許可其他ノ処分アルコトヲ要件トスルトキハ其要件ヲモ備フルコトヲ要ス ２ 養子ト其実方ノ血族トノ親族関係ノ終了及ビ離縁ハ前項前段ニ定ムル法律ニ依ル |
Article 20 Adoption shall be governed by the law of the home country of the adopting parent at the time of adoption. If the law of the home country of the adopted child requires a consent or approval from the adopted child or any third party or a permission or any other treatment of an authority for adoption, such requirements shall necessarily be fulfilled. (2) Termination of family relationship between the adopted child and his/her natural family shall be governed the law stipulated in the first half of the previous paragraph. |
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| Legal relation between parent and child | ||||
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第二十一条 親子間ノ法律関係ハ子ノ本国法ガ父又ハ母ノ本国法若シ父母ノ一方アラザルトキハ他ノ一方ノ本国法ト同一ナル場合ニ於テハ子ノ本国法ニ依リ其他ノ場合ニ於テハ子ノ常居所地法ニ依ル |
Article 21 Legal relations between the parents and the child shall be governed by the law of the child's home country if it is the same law as that of the parents' home country or, if the father or the mother does not exist, that of the home country of the existing parent; in other cases, they shall be governed by the law of the jurisdiction where the child has his permanent residence. |
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第二十二条 第十四条乃至前条ニ掲ゲタル親族関係ニ付テノ法律行為ノ方式ハ其行為ノ成立ヲ定ムル法律ニ依ル但行為地法ニ依ルコトヲ妨ゲズ |
Article 22 Formalities for juristic acts related to family relations mentioned from Article 14 to the previous article shall be governed by the law governing the establishment of such acts. However, this does not prevent the governing by the law of the jurisdiction in which such acts are conducted. |
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| Relationship | ||||
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第二十三条 第十三条乃至第二十一条ニ掲ケタルモノノ外親族関係及ヒ之ニ因リテ生スル権利義務ハ当事者ノ本国法ニ依リテ之ヲ定ム |
Article 23 Apart from those mentioned from Article 13 to Article 21, the family relationship and the rights and obligations arising from that shall be determined by the law of the home country of the parties. |
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| Guardianship | ||||
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第二十四条 後見ハ被後見人ノ本国法ニ因ル ２ 日本ニ住所又ハ居所ヲ有スル外国人ノ後見ハ其本国法ニ依レハ後見開始ノ原因アルモ後見ノ事務ヲ行フ者ナキトキ及ヒ日本ニ於テ後見開始ノ審判アリタルトキニ限リ日本ノ法律ニ依ル |
Article 24 Guardianship shall be governed by the law of the home country of the protege. (2) Guardianship of a foreign person having an address or domicile in Japan shall be governed by the Japanese law only if there is no person managing the guardianship affairs in spite of the ground for the commencement of guardianship under the Japanese law or if adjudication upon the commencement of guardianship is made in Japan. |
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| Curatorship | ||||
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第二十五条 前条ノ規定ハ保佐及ビ補助ニ之ヲ凖用ス |
Article 25 The provisions of the previous article shall similarly apply (mutatis mutandis) to curatorship and assistance. |
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| Succession | ||||
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第二十六条 相続ハ被相続人ノ本国法ニ依ル |
Article 26 Inheritance shall be governed by the law of the ancestor's home country. |
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| Will | ||||
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第二十七条 遺言ノ成立及ヒ効力ハ其成立ノ当時ニ於ケル遺言者ノ本国法ニ依ル ２ 遺言ノ取消ハ其当時ニ於ケル遺言者ノ本国法ニ依ル |
Article 27 Establishment and/or effect of a testament shall be governed by the law of the testator's home country at the time of the establishment of that testament. (2) Cancellation of a testament shall be governed by the law of the testator's home country at the time of the cancellation. |
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| Law of home country | ||||
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第二十八条 当事者ガ二箇以上ノ国籍ヲ有スル場合ニ於テハ其国籍ヲ有スル国中当事者ガ常居所ヲ有スル国若シ其国ナキトキハ当事者ニ最モ密接ナル関係アル国ノ法律ヲ当事者ノ本国法トス但其一ガ日本ノ国籍ナルトキハ日本ノ法律ヲ其本国法トス ２ 当事者ノ本国法ニ依ルベキ場合ニ於テ当事者ガ国籍ヲ有セザルトキハ其常居所地法ニ依ル但第十四条（第十五条第一項及ビ第十六条ニ於テ凖用スル場合ヲ含ム）又ハ第二十一条ノ規定ヲ適用スル場合ハ此限ニ在ラズ ３ 当事者ガ地方ニ依リ法律ヲ異ニスル国ノ国籍ヲ有スルトキハ其国ノ規則ニ従ヒ指定セラルル法律若シ其規則ナキトキハ当事者ニ最モ密接ナル関係アル地方ノ法律ヲ当事者ノ本国法トス |
Article 28 The law of the home country of a party with a plural nationality [two or more nationalities] shall be the law of the jurisdiction in which he/she has a permanent residence [habitual residence] or, if there is no such country, the one most closely related to that party among the countries in which that party has his/her citizenship [nationality]. However, if such party has a Japanese citizenship [nationality], the law of his/her home country shall be the Japanese law. (2) In the case that the law of the party's home country shall govern and that party does not have a citizenship [nationality] in any country, the governing law shall be the law of the jurisdiction in which he/she has a permanent residence [habitual residence], except that the provisions of Article 14 (including the application mutatis mutandis in Article 15 (1) and Article 16) or Article 21 shall apply. (3) If a party has a citizenship [nationality] in a country which is constituted of different jurisdictions, the law of the home country of such party shall be the law of the jurisdiction specified by the regulation of that country or, if there is no such regulation, the law of the jurisdiction most closely related to him/her. |
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Note that the received translation inconsistently and incorrectly translates 国籍 (kokuseki). The term means nationality, which is a matter of international law -- and not citizenship, which is a matter of domestic law in some but not all countries. The expression a plural nationality is also incorrect. There are only single nationalities. Most people possess only one nationality, but some possess two or more [i.e., multiple] nationalities. The received translation also erroneously speaks of "permanent residence" whereas the law refers to "habitual residence" (常居所 jō-kyosho). Under Japanese law, "permanent residence" (永住 eijō) is a status of alien residence. Permanent resident, among some other aliens in Japan, is considered to have a "domicile" (住所 jūsho) in Japan, which is legally different from an "habitual residence". Article 27 in 1948 versionArticle 28 in the 2000 reflects article 28 in the 1990 version, which constitutes an important revision of Article 27 in the 1948 version. Article 28 became Article 38 of the 2007 Common Rules Law that replaced the 1898 Rules of Laws (see below).
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| Law of place of domicile | ||||
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第二十九条 当事者ノ住所地法ニ依ルヘキ場合ニ於テ其住所カ知レサルトキハ其居所地法ニ依ル ２ 当事者ガ二箇以上ノ住所ヲ有スルトキハ其住所地中当事者ニ最モ密接ナル関係アル地ノ法律ヲ其住所地法トス |
Article 29 In the case that the law of the jurisdiction where the party has his/her domicile shall govern and that domicile is not known, the law of the jurisdiction where that party resides shall govern. (2) If the party has more than one domicile, the law of the jurisdiction where the party has his/her domicile shall be the law of the jurisdiction most closely related to him/her among the jurisdictions in which the party has his/her domiciles. |
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| Law of place of permanent [habitual] residence | ||||
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第三十条 当事者ノ常居所地法ニ依ルベキ場合ニ於テ其常居所ガ知レザルトキハ其居所地法ニ依ル但第十四条（第十五条第一項及ビ第十六条ニ於テ凖用スル場合ヲ含ム）ノ規定ヲ適用スル場合ハ此限ニ在ラズ |
Article 30 In the case that the law of the jurisdiction where the party has a permanent [habitual] residence shall govern and that permanent [habitual] residence is not known, the law of the jurisdiction where that party resides shall govern, except that the provisions of Article 14 (including the application mutatis mutandis in Article 15 (1) and Article 16) or Article 21 shall apply. |
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| Renvoi | ||||
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第三十一条 当事者ガ人的ニ法律ヲ異ニスル国ノ国籍ヲ有スル場合ニ於テハ其国ノ規則ニ従ヒ指定セラルル法律若シ其規則ナキトキハ当事者ニ最モ密接ナル関係アル法律ヲ当事者ノ本国法トス ２ 前項ノ規定ハ当事者ガ常居所ヲ有スル地ガ人的ニ法律ヲ異ニスル場合ニ於ケル当事者ノ常居所地法及ビ夫婦ニ最モ密接ナル関係アル地ガ人的ニ法律ヲ異ニスル場合ニ於ケル夫婦ニ最モ密接ナル関係アル地ノ法律ニ之ヲ凖用ス |
Article 31 In the case that a party has a citizenship [nationality] of a country having different laws applying to different persons, the law of the home country of such party shall be the law specified by the regulation of that country or, if there is no such regulation, the law most closely related to him/her. (2) The provisions of the previous paragraph shall apply mutatis mutandis to the law of the jurisdiction where the party has permanent residence if that jurisdiction has different laws applying to different persons, and to the law of the jurisdiction most closely related to the husband and the wife if that jurisdiction has different laws applying to different persons. |
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| Public policy | ||||
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第三十二条 当事者ノ本国法ニ依ルヘキ場合ニ於テ其国ノ法律ニ従ヒ日本ノ法律ニ依ルヘキトキハ日本ノ法律ニ依ル但第十四条（第十五条第一項及ビ第十六条ニ於テ凖用スル場合ヲ含ム）又ハ第二十一条ノ規定ニ依リ当事者ノ本国法ニ依ルベキ場合ハ此限ニ在ラズ |
Article 32 If the law of the party's home country governs and that governing law prescribes that the case shall be governed by the Japanese law, the Japanese law shall govern, except that the law of the party's home country shall govern in accordance with the provisions of Article 14 (including the application mutatis mutandis in Article 15 (1) and Article 16) or Article 21. |
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| Public order and morality | ||||
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第三十三条 外国法ニ依ルヘキ場合ニ於テ其規定ノ適用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 |
Article 33 In the case that the foreign law shall govern but the application of the provisions of that law is against the public order and/or morality, such provisions shall not apply. |
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| Inapplicability | ||||
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第三十四条 本法ハ夫婦、親子其他ノ親族関係ニ因リテ生ズル扶養ノ義務ニ付テハ之ヲ適用セズ但第三十条本文ノ規定ハ此限ニ在ラズ ２ 本法ハ遺言ノ方式ニ付テハ之ヲ適用セズ但第二十八条第二項本文、第二十九条第一項、第三十条本文及ビ第三十一条ノ規定ハ此限ニ在ラズ |
Article 34 This law shall not apply to the support obligations based on the family relationship such as matrimonial and/or parental relations, except for the provisions of the main clause of Article 30. (2) This law shall not apply to the formalities of the testament, except for the provisions of the main clause of Article 28 (2), Article 29 (1), the main clause of Article 30 and Article 31. |
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| 附則 | Supplementary provisions | |||
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昭和１７年２月１２日法律第７号 [抄] 第一条 本法施行ノ期日ハ勅令ヲ以テ之ヲ定ム |
Law No. 7 of 12 February 1942 [abbreviated] Article 1 The date of enforcement of this law shall be determined by an imperial ordinance. |
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昭和２２年１２月２２日法律第２２３号 [抄] 第二十九条 この法律は、昭和二十三年一月一日から、これを施行する。 |
Law No. 223 of 12 December 1947 [abbreviated] Article 29 This law shall enter into force from 1 January 1948. |
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昭和３９年６月１０日法律第１００号 [抄] （施行期日） １ この法律は、遺言の方式に関する法律の抵触に関する条約が日本国について効力を生ずる日から施行する。 |
Law No. 100 of 10 June 1964 [abbreviated] (Enforcement date) This law shall enter into from the day the [Hague] Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions engenders effect for Japan. |
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The Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions (Convention No. 9 of June 1954) was concluded on 5 October 1961 and entered into force from 5 January 1964. Japan signed the convention on 30 January 1964 and ratified it on 3 June 1964, and it came into force for Japan from 2 August 1964. |
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昭和６１年６月１２日法律第８４号 [抄] （施行期日） １ この法律は、扶養義務の準拠法に関する条約が日本国について効力を生ずる日から施行する。 |
Law No. 84 of 12 June 1986 [abbreviated] (Enforcement date) This law shall enter into force from day the [Hague] Convention on the Law Applicable to Maintenance Obligations Toward Children engenders effect in Japan. |
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The Convention on the Law Applicable to Maintenance Obligations Toward Children was concluded on 24 October 1956 and entered into force from 1 January 1962. The convention was drawn up only in French. Japan signed the convention on 10 February 1977 and ratified it on 22 July 1977, and it came into force for Japan from 19 September 1977. |
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平成元年６月２８日法律第２７号 [抄] １ この法律は、公布の日から起算して一年を超えない範囲において政令で定める日から施行する。 ２ この法律の施行以前に生じた事項については，なお従前の例による。ただし、この法律の施行の際現に継続する法律関係については、この法律の施行後の法律関係に限り、改正後の法例の規定を適用する。 |
Law No. 27 of 28 June 1989 [abbreviated] 1 This law shall come into force from a day to be determined by a government order within [a period of time] not to exceed one year computed from the day of promulgation. 2 Regarding the matters that arose before the enforcement of this law, they shall be according to previous examples. However, regarding legal relationships actually continuing at the time of the enforcement of this law, limited to legal relationships after the enforcement of this law, [the government] shall apply the provisions of the Rules of Laws after [its] amendment [by this law]. |
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平成１１年１２月８日法律第１５１号 [抄] （施行期日） 第一条 この法律は、平成十二年四月一日から施行する。[後略] |
Law No. 151 of 8 December 1999 [abbreviated] (Enforcement date) Article 1 This law shall come into force from 1 April 2000. [rest omitted] |
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2007 Common Rules Law concerning application of laws
1 January 2007
Promulgated 21 June 2006 (Law No. 78) Enforced from 1 January 2007 Revised and replaced Law No. 10 of 1898
The 2007 Common Rules Law concerning application of laws (法の適用に関する通則法 Hō no tekiyō ni kan suru tsūsoku hō) is most commonly "General law concerning the application of laws" in English. The shorter name of the law in Japanese is 通則法 (tsūsoku hō) hence "Common Rules Law" in English that reflects this Japanese -- though this could also be translated "Law of common rules".
The new law attracted a lot of attention from legalists working in other languages long before it was finalized, and shortly after it came into effect a number of translations had appeared in journals of international law. The two most commonly available English translations are presented here with Japanese version.
The two received English translations, one by Anderson and Okuda, the other by Dogauchi and several others, are different -- at times strikingly, even when not significantly. It is a toss up as to which version is better. Anderson and Okuda make this statement regarding their standard of translation (Anderson and Okuda 2007, page 228, underscoring mine, notes iv and v omitted here).
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Our translation of the new wholly reformed law is consistent with that earlier translation [of the former law], but also differs in two important ways. First, the 2006 reformed law [in effect from 2007] uses modern Japanese rather than the formal 19th Century Japanese found in the early version. Thus, while still |
If anything, the Anderson-Okuda translation errs on the side of laxity and inconsistency. And it suffers precisely because the translators seem to have labored under the false impression that the 2007 law should be less formally translated simply because it was written in a style that is more familiar and accessible to present-day readers.
The distinction between the styles of the 1898 law as revised through 2000, and the new law that came into effect from 2007, is not one of formality. Laws, by their nature, have to be written according to strict standards of legal usage, which demand phrasal and metaphorical consistency -- hence the need for sound structural standards in legal translation.
Anderson and Okuda also place more faith in the so-called Standard Bilingual Dictionary -- which turns out not to be a very good model, especially when translating laws related to legal status and family. For more about the problems with this over-rated dictionary and its fashionability, see Legal terminology section of the "Glossaries" feature of this website.
In any event, both the 1898 and 2007 laws are structurally formal in the manner in laws everywhere, and as such they are superior to either of the received translations. Comparisons of the two translations -- with themselves, with each other, and with the original text -- clearly show their internal inconsistencies and their differences as English texts, and their departures from the Japanese text.
As Anderson and Okuda point out in the introduction to their translation, however, translations are organic and therefore grow -- but only if more thought is given to higher standards of fidelity and consistency. And, as they also observe and caution, only the Japanese text of the law has any authority in legal practice.
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2007 Common Rules Law concerning application of laws |
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Japanese textThe Japanese text is from the 法令データ提供システム or "Law data provision system" on the law.e-gov.go.jp website maintained by the Ministry of Internal Affairs and Communication (MIC 総務省). Received English translationsThere are two received translations. Anderson and Okuda translationThe first received translation was apparently done by Kent Anderson and Yasuhiro Okuda. The text shown here has been adopted from the following journal article. Translation of Japan's Private International Law: Act on the General Rules of Application of Laws The above journal article is available as a PDF file on the website of Australian Network for Japanese Law (ANJeL). ANJeL styles itself as "An initiative of the College of Law at the Australian National University (ANU) and the Faculty of Law at the University of Sydney (USyd)". The website states that "ANJeL collaborates in promoting the multi-lingual Zeitschrift fuer Japanisches Recht / Journal of Japanese Law". Ken Anderson (ANU) is listed as one of three ANJeL co-directors. Dogauchi et al translationThe second received translation is attributed to "Masato Dogauchi (Waseda University), Tadashi Kanzaki (Gakushuin University), Yasushi Nakanishi (Kyoto University), Yoshihisa Hayakawa (Rikkyo University), Aki Kitazawa (Keio Gijuku University) and Yuko Nishitani (Tohoku University)". The attribution notes that the Anderson-Okuda translation would soon be published in the Journal of Japanese Law. The Dogauchi et al translation bears the following title. "Act on General Rules for Application of Laws" The translation is available as an HTML file on the website of the Private International Law Association of Japan (国際私法学会). PILAJ gives its address as Chuo University Faculty of Law. Both Masato Dogauchi and Yasuhiro Okuda are PILAJ Councilors. Structural English translationsThe structural English translations, shown in normal blue, are mine. The bold blue or bold green emphasis in these translations is also mine. CommentaryUnless otherwise specified, [square brackets] in received Japanese and English texts reflect my own commentary. Extended commentary is shown in cells below received texts. To facilitate commentary on specific words and phrases in received texts, I have highlighted the words and phrases in various bold colors according the following scheme.
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法の適用に関する通則法 (Hō no tekiyō ni kan suru tsūsoku hō) |
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Contents of 2007 Common Rules Law concerning application of laws |
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Japanese text第一章 総則（第一条） Structural translation
Chapter 1: General provisions (Article 1) |
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第一章 総則 |
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趣旨 |
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第一条 この法律は、法の適用に関する通則について定めるものとする。 |
Article 1 This law shall provide the general rules for the application of laws. |
Article 1 This Act shall provide for the general rules on the application of laws. |
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第二章 法律に関する通則 |
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法律の施行期日 |
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第二条 法律は、公布の日から起算して二十日を経過した日から施行する。ただし、法律でこれと異なる施行期日を定めたときは、その定めによる。 |
Article 2 A statute shall come into force from the twentieth day after its promulgation. However, where a different effective date is provided by the statute, that date shall apply. |
Article 2 An act shall become effective on the twentieth day after its promulgation, unless otherwise provided for in such act. |
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法律と同一の効力を有する慣習 |
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第三条 公の秩序又は善良の風俗に反しない慣習は、法令の規定により認められたもの又は法令に規定されていない事項に関するものに限り、法律と同一の効力を有する。 |
Article 3 Customs not contrary to public policy (ordre public) [Note vii] shall have the same effect as law, to the extent that they are authorized by a statute or a statutory instrument, or that they concern matters not otherwise prescribed by a statute or a statutory instrument. |
Article 3 Customs which are not incompatible with public order and good morals shall have the same effect as laws if they are authorized by provisions of statutes or statutory instruments, or concern matters not otherwise prescribed by such provisions. |
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Note received with Anderson and Okuda translationNote vii This is the Japanese set phrase "oyake no chitsujo matawa zenryō no fūzoku" originating from the German öffentliche Ordnung und gute Sitten. Often translated literally in English as "public order and good morals", it is regarded to have the same meaning as the French term ordre public. Public policy in Article 3 of the Application of Laws Act pertains to domestic law and is used with the same connotation in Article 92 of the Minpō [Civil Code]. This should be distinguished from the public policy of private international law found in Article 42 of the Application of Laws Act. JAPANESE ASSOCIATION OF INTERNATIONAL LAW, Kokusai kankei-hō jiten [Dictionary of International Relations Law] (2nd ed., Tokyo 2005) 238-39. The Dogauchi et al translation (green) is more accurate. A structurally closer translation would be "Customs which are not contrary to public order and good morals [in Japan]". |
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第三章 準拠法に関する通則 |
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第一節 人 |
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人の行為能力 |
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第四条条 人の行為能力は、その本国法によって定める。 ２ 法律行為をした者がその本国法によれば行為能力の制限を受けた者となるときであっても行為地法によれば行為能力者となるべきときは、当該法律行為の当時そのすべての当事者が法を同じくする地に在った場合に限り、当該法律行為をした者は、前項の規定にかかわらず、行為能力者とみなす。 ３ 前項の規定は、親族法又は相続法の規定によるべき法律行為及び行為地と法を異にする地に在る不動産に関する法律行為については、適用しない。 |
Article 4 (1) The legal capacity of a person shall be governed by his or her national law. [Note viii] (2) Notwithstanding the preceding paragraph, where a person who has performed a juristic act is of full capacity under the law of the place where the act was done (lex loci actus), that person shall be regarded as having full capacity to the extent that at the time of the juristic act, all the parties were situated in a place under the same law. (3) The preceding paragraph shall not apply either to a juristic act governed by family law [Note ix] or succession law, [Note x] or to a juristic act regarding immovables situated in a place where the law differs from the lex loci actus. |
Article 4 (1) A person's capacity to act is governed by his/her national law. (2) Notwithstanding the preceding paragraph, a person shall be deemed to have the capacity to act, when he/she has the capacity to act under the law of the place of the act and all the parties of the juristic act are located in the same jurisdiction at the time of the act, even if he/she is a person with limited capacity under his/her own national law. (3) The preceding paragraph does not apply to either a juristic act which is governed by any law on family relationships or succession, or to a juristic act involving immovables which are not located in the same jurisdiction as that of the place of the act. |
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Notes received with Anderson and Okuda translationNote viii "National law" refers in general to the law of one's nationality. See also Application of Laws Act, arts. 38, 40(1). This is a widespread civil law test of connection with a country, in contrast to the common law's use of domicile. See Kokusai kankei-hō jiten, supra note vii, 813; C.M.V. CLARKSON / J. HILL, Jaffey on the Conflict of Laws (London 1997) 49-51; K.H. NADLEMANN, Mancini's Nationality Rule and Non-Unified Legal Systems: Nationality versus Domicile, in: American Journal of Comparative Law 17 (1969) 418. Note ix See Application of Laws Act, arts. 24-35. Note x See Application of Laws Act, arts. 36-37. |
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[ Articles 5-37 omitted. ] |
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第七節 補則 |
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本国法 |
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第三十八条 当事者が二以上の国籍を有する場合には、その国籍を有する国のうちに当事者が常居所を有する国があるときはその国の法を、その国籍を有する国のうちに当事者が常居所を有する国がないときは当事者に最も密接な関係がある国の法を当事者の本国法とする。ただし、その国籍のうちのいずれかが日本の国籍であるときは、日本法を当事者の本国法とする。 ２ 当事者の本国法によるべき場合において、当事者が国籍を有しないときは、その常居所地法による。ただし、第二十五条（第二十六条第一項及び第二十七条において準用する場合を含む。）及び第三十二条の規定の適用については、この限りでない。 ３ 当事者が地域により法を異にする国の国籍を有する場合には、その国の規則に従い指定される法（そのような規則がない場合にあっては、当事者に最も密接な関係がある地域の法）を当事者の本国法とする。 |
Article 38 (1) Where a person has two or more nationalities, his or her national law shall be the law of the country in which the person has habitual residence from among those states of which he or she has nationality. Where there is no such country, the person's national law shall be the law of the state with which he or she is most closely connected. However, where one of those nationalities is Japanese, Japanese law shall be that person's national law. (2) In the case where a person's national law shall govern but the person has no nationality, the law of that person's habitual residence shall govern. However, this shall not apply to cases where Article 25 (including its application mutatis mutandis under Article 26, paragraph 1 and Article 27) or Article 32 is applicable. (3) Where a person has nationality in a state where the law differs by region, that person's national law shall be the law designated by the rules of that state (or the law of the region with which that person is most closely connected in the case where such rules do not exist). |
Article 38 (1) If a person has two or more nationalities, the law of the state where he/she has his/her habitual residence shall be his/her national law insofar as his/her nationality is from that state. If he/she does not have his/her habitual residence in any of the states whose nationality he/she has, the law of the state with which he/she is most closely connected shall be deemed to be his/her national law. However, where one of his/her nationalities is Japanese, Japanese law shall be deemed to be his/her national law. (2) In the case where the national law of a person shall apply but the person has no nationality, the law of his/her habitual residence shall apply. However, this shall not apply to the case where Article 25 (including the cases where it is applied mutatis mutandis pursuant to Article 26, paragraph 1 or Article 27) or Article 32 applies. (3) Where a person is a national of a state where different systems of law exist in its respective regions, the law determined in accordance with the rules of that state (if there are no such rules, the law of the region with which he/she is most closely connected) shall be deemed to be his/her national law. |
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常居所地法 |
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第三十九条 当事者の常居所地法によるべき場合において、その常居所が知れないときは、その居所地法による。ただし、第二十五条（第二十六条第一項及び第二十七条において準用する場合を含む。）の規定の適用については、この限りでない。 |
Article 39 In the case where the law of a person's habitual residence shall govern but where that habitual residence is unknown, the law of that person's residence shall govern. However, this shall not apply to cases where Article 25 is applicable (including its application mutatis mutandis in Article 26, paragraph 1 and Article 27). |
Article 39 Where the law of a person's habitual residence shall apply but his/her habitual residence cannot be identified, the law of his/her residence shall apply. However, this shall not apply to the case where Article 25 (including the cases where it is applied mutatis mutandis pursuant to Article 26, paragraph 1 or Article 27) or Article 32 applies. |
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人的に法を異にする国又は地の法 |
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第四十条 当事者が人的に法を異にする国の国籍を有する場合には、その国の規則に従い指定される法（そのような規則がない場合にあっては、当事者に最も密接な関係がある法）を当事者の本国法とする。 ２ 前項の規定は、当事者の常居所地が人的に法を異にする場合における当事者の常居所地法で第二十五条（第二十六条第一項及び第二十七条において準用する場合を含む。）、第二十六条第二項第二号、第三十二条又は第三十八条第二項の規定により適用されるもの及び夫婦に最も密接な関係がある地が人的に法を異にする場合における夫婦に最も密接な関係がある地の法について準用する。 |
Article 40 (1) In the case of a person who is a national of a state where the law differs according to a person's status, that person's national law shall be the law indicated according to the rules of that state (or the law with which that party is most closely connected where such rules do not exist). (2) The preceding paragraph shall apply mutatis mutandis to the law of that party's habitual residence where that law differs according to a person's status and where that law is applicable according to Article 25 (including its application mutatis mutandis under Article 26, paragraph 1 and Article 27), Article 26, paragraph 2, item ii, Article 32, or Article 38, paragraph 2, and to the law of the place with which both spouses are most closely connected where that law differs by a person's status. |
Article 40 (1) Where a person is a national of a state where different systems of law apply to a respective group of people, the law determined in accordance with the rules of that state (if there are no such rules, the law with which he/she is the most closely connected) shall be deemed to be his/her national law. (2) The preceding paragraph shall apply mutatis mutandis where the law of a person's habitual residence is to apply in accordance with Article 25 (including the cases where it is applied mutatis mutandis pursuant to Article 26, paragraph 1 or Article 27), Article 26, paragraph 2 (ii), Article 32 or Article 38, paragraph 2, and different systems of law apply to a respective group of people in the place of his/her habitual residence. Also, it shall apply mutatis mutandis where the law of the place with which spouses are most closely connected is to apply and different systems of law apply to a respective group of people in that place. |
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反致 |
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第四十一条 当事者の本国法によるべき場合において、その国の法に従えば日本法によるべきときは、日本法による。ただし、第二十五条（第二十六条第一項及び第二十七条において準用する場合を含む。）又は第三十二条の規定により当事者の本国法によるべき場合は、この限りでない。 |
Article 41 Where a case should be governed by a person's national law and pursuant to the rules of that law the case should be governed by Japanese law, the case shall be governed by Japanese law. However, this shall not apply where the person's national law should govern pursuant to Article 25 (including its application mutatis mutandis in Article 26, paragraph 1 and Article 27) or Article 32. |
Article 41 Where a person's national law applies and the rules of that law require that Japanese law should apply, then Japanese law shall apply. However, this shall not apply to a case where the person's national law is to apply in accordance with Article 25 (including the cases where it is applied mutatis mutandis pursuant to Article 26, paragraph 1 or Article 27) or Article 32. |
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公序 |
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第四十二条 外国法によるべき場合において、その規定の適用が公の秩序又は善良の風俗に反するときは、これを適用しない。 |
Article 42 Where a case should be governed by a foreign law but application of those provisions would contravene public policy (ordre public), those provisions shall not apply. |
Article 42 Where a foreign law is to apply but its application would be contrary to public policy (ordre public), it shall not apply. |
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適用除外 |
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第四十三条 この章の規定は、夫婦、親子その他の親族関係から生ずる扶養の義務については、適用しない。ただし、第三十九条本文の規定の適用については、この限りでない。 ２ この章の規定は、遺言の方式については、適用しない。ただし、第三十八条第二項本文、第三十九条本文及び第四十条の規定の適用については、この限りでない。 |
Article 43 (1) The provisions of this Chapter shall not apply to maintenance obligations arising from spousal, parentage, or any other family relationships. However, this shall not apply to the application of the main clause of Article 39. (2) The provisions of this Chapter shall not apply to the formalities of wills. However, this shall not apply to the application of the main clause of Article 38, paragraph 2, the main clause of Article 39, and Article 40. |
Article 43 (1) The provisions of this Chapter, except for the main clause of Article 39, shall not apply to maintenance obligations arising from marriage, parentage, or any other family relationships. (2) The provisions of this Chapter, except for the main clause of Article 38, paragraph 2, the main clause of Article 39, as well as Article 40 in its entirety, shall not apply to the formalities of wills. |
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Note received with Anderson and Okuda translationNote xvi Choice of law rules for maintenance obligations and formalities of wills are provided by special statutes that incorporate the Convention on the Law Applicable to Maintenance Obligations of 1973 and the Convention on the Conflict of Laws relating to the Form of Testamentary Dispositions of 1961. See Fuyo gimu no junkyo-ho ni kansuru horitsu [Act Concerning the Law Applicable to Maintenance Obligations], Law No. 84 of 1986; Igon no hoshiki no junkyo-ho ni kansuru horitsu [Act Concerning the Law Applicable to Form of Testamentary Dispositions], Law No. 100 of 1964. |
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[ Supplementary provisions omitted. ] |
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1918 Common Law
Interior, Chōsen, Taiwan, and Karafuto in
Imperial Japan's territorial domestic laws of laws
Common Law (共通法 Kyōtsūhō)
Promulgated on 17 April 1918
All except Article 3 enforced from 1 June 1918 (Imperial Ordinance No. 144 of 1918)
Article 3 enforced from 1 July 1921 (Imperial Ordinance No. 283 of 1921)
Effectiveness
Never abrogated but lost effect from enforcement of San Francisco Peace Treaty on 28 April 1952, when Japan formally lost Taiwan, Chōsen, and other such territories that were part of the sovereign Empire of Japan or under its legal jurisdiction.
Continues to affect judgments in court cases involving legacy status actions between Interior and Exterior family registers.
Amendments
Law No. 25 of 1923
Law No. 16 of 1942
Law No. 5 of 1943
Law No. 110 of 1943
Law No. 110 of 1943 revised the 1927 Military Service Law to apply to all imperial subjects.
Need for common law
As the World War (1914-1918) was coming to an end, the Empire of Japan faced a growing problem -- how to manage all its territories, about to include the German islands it had occupied in 1914 at the start of the war as one of the principal Allied Powers with France, Italy, the United Kingdom, and the United States. Specifically, Japan needed to coordinate legal procedures between its prefectures, which it called its Interior (Naichi), and other territories under its control and legal jurisdiction, which it called its Exterior (Gaichi).
The Exterior territories included those that were part of Japan's sovereign dominion (Taiwan, Karafuto, Chōsen) and those that were only under its control and jurisdiction (Kwantung Province, South Sea Islands).
Taiwan Ceded by China to Japan in 1895 after the Sino-Japanese War)
Karafuto Ceded by Russia to Japan in 1905 after the Russo-Japanese War
Kwantung Province Leased from China for 100 years in 1898 by Russia, which ceded its leasehold to Japan in 1905 after the Russo-Japanese War
Chōsen Former Empire of Korea, ceded by itself to Japan in 1910
South Sea Islands Former German islands occupied by Japan during the World War in 1914, civil administration created by Japan in June 1918, placed under Japanese mandate by the League of Nations on 17 December 1920, pursuant to the Treaty of Versailles (signed 28 June 1919, effective 10 January 1920)
As a law that bridged Japan's legal territories, all of which were administered under different legal systems, Law No. 39 of 1918 was a "law of laws" -- i.e., a law that facilitates the operation of laws in matters where the laws of two or more legal systems might apply. As such, it provided for ways to minimize conflict between laws and ordinances in Japan's different territories or regions, referred to in the law as 地域 (chiiki).
National censuses breakdowns by territory
The legal accommodation of civil matters involving Japanese of different territorial statuses, such as a marriage between a Chosenese (Chōsenjin 朝鮮人) and a Taiwanese (Taiwanjin 台湾人), or a Taiwanese and an Interiorite (Naichijin 内地人), was paralleled by accommodation in the 1920 national census, the first of its kind and scope to be taken in Japan, of "subnationality" (minseki 民籍) territorial statuses within Japan's overarching "nationality" (kokuseki 国籍). See Minseki on the "1872 Family Register" page in the "Nationality" section for details.
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1918 Common Law (Law No. 39) Interior, Chōsen, Taiwan, Kwantung Province, and South Sea Islands |
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Japanese textThe Japanese text is adapted from a copy posted on Nakano Bunko. English translation and commentaryThe structural English translation and all commentary are mine. |
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| 共通法 | Common Law |
| Definition of territories | |
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第一条 本法ニ於テ地域ト称スルハ内地、朝鮮、台湾、関東州又ハ南洋群島ヲ謂フ 2 前項ノ内地ニハ樺太ヲ包含ス |
Article 1 What in this law is styled [called, termed] a "territory" refers to [means] Naichi [Interior], Chōsen, Taiwan, Kantōshū [Kwantung Province], and Nan'yō Guntō [South Sea Islands]. 2. The "Interior" of the preceding paragraph [this law] shall include Karafuto. |
| Disposition of civil matters in different territories | |
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第二条 民事ニ関シ一ノ地域ニ於テ他ノ地域ノ法令ニ依ルコトヲ定メタル場合ニ於テハ各地域ニ於テ其ノ地ノ法令ヲ適用ス二以上ノ地域ニ於テ同一ノ他ノ地域ノ法令ニ依ルコトヲ定メタル場合ニ於テ其ノ相互ノ間亦同シ 2 民事ニ関シテハ前項ノ場合ヲ除クノ外法例ヲ準用ス此ノ場合ニ於テハ各当事者ノ属スル地域ノ法令ヲ以テ其ノ本国法トス |
Article 2 Concerning civil matters, in the case of [a court] in one territory determining a matter pursuant [according] to the laws and orders of another territory, [the court] shall apply in each territory the laws of that place [territory]. In the case of [a court] determining [a civil matter] in two or more territories pursuant to the laws and orders of [yet] another territory, [the application of law] shall be the same as between the them mutually. 2 Concerning civil matters, [a court] shall similarly apply [mutatis mutandis] rules of foreign [outside country] laws excepting cases of the preceding paragraph. In these [foreign law] cases, [a court] shall take the laws and orders of the territory [of Japan] with which each concerned person (party) is affiliated and make [these laws and orders] the home [principal] country law [of the person]. |
"Rules of foreign laws" and "home country law"Each territory of the Empire of Japan was a separate legal jurisdiction within the empire, just as the empire itself was a legal jurisdiction within the family of states. Territorial jurisdictions were nested within Japan's state jurisdiction, which was nested within the larger body of various state jurisdictions. Foreign laws were those of other states. Paragraph 1 of Article 2 stipulates that the standards for determining which territory's laws would apply in a civil matter in one territory involving a person from another territory would be mutual among the territories. The paragraph concerns only people affiliated with the territories. Paragraph 2 implied that "foreign laws" would be similarly applied in cases not involving territorial (Japanese) civil matters. With regard to this, the laws and orders of the territory with which a person was affiliated would be taken as the equivalent of the person's "home country law". Accordingly, "Naichi" laws and orders would be the "home country law" for Interiorites, "Taiwan" laws and orders would be the "home country law" for Taiwanese, et cetera. In other words, for people affiliated with Japan's various territories, the 1918 Common Law had the quality of a quasi private international law. Territorial affiliation broader than nationalityTerritorial affiliation -- not nationality -- determined applicable law within Japan. Affiliates of the Interior (including Karafuto), Taiwan, and Chōsen were nationals of the sovereign empire, hence Japanese. Affiliates of Kwantung and the South Sea Islands, however, were aliens. Yet all were affiliates of Japanese territories. Practically all people residing on Taiwan and in Chōsen were Japanese during the period that the Common Law was in effect. Most Kwantung residents were nationals of the Republic of China, until after the founding of Manchoukuo in 1932, when Japan transferred its lease of Kwantung to Manchoukuo and began to regard its inhabitants as Manchoukuo nationals. Indigenous South Sea Islands inhabitants were essentially stateless. Because Kwantung and the South Sea Islands were Japanese territories, under Japan's legal jurisdiction and diplomatic protection, their non-Japanese territorial inhabitants were aliens affiliated with Japan. Such affiliated aliens were included in Japan's total state population, apart from non-affiliated aliens. Breakdowns of the total state population differentiated nationals and affiliated aliens, and both of these categories were broken down by territory. |
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| Movement between family registers of different territories | |
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第三条 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 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. |
| Judicial persons (corporations) | |
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[ Articles 4-8 omitted ] |
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| Civil procedures | |
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Articles 9-12 are based on international civil matters litigation [civil action procedures] law. |
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第九条 民事訴訟及非訟事件ニ付一ノ地域内ニ住所ヲ有セサル者ノ裁判管轄又ハ他ノ地域ノ法人ノ裁判管轄ニ関シテハ民事訴訟法、人事訴訟手続法及非訟事件手続法中日本ニ住所ヲ有セサル者又ハ外国法人ノ裁判管轄ニ関スル規定ヲ準用ス 2 前項ノ規定ノ適用ニ付裁判管轄ノ指定ニ関スル司法大臣ノ職務ハ朝鮮、台湾、関東州又ハ南洋群島ニ在リテハ朝鮮総督、台湾総督、関東長官又ハ南洋庁長官之ヲ行フ |
Article 9 In civil actions [civil litigation] or [civil] non-litigious matters, concerning the court jurisdiction of a person who does not possess a domicile within one territory or the court jurisdiction of a legal entity of another territory -- the Civil Litigation [Actions] Law, the Personal Litigation [Personal Status Actions] Procedures Law, and the Non-litigious [Non-contentious] Cases Procedures Law -- shall similarly apply [mutatis mutandis] the provisions concerning the court jurisdiction of a person who do not possess a domicile in Japan or an alien [foreign country] legal entity. 2. As for the duties [functions] of the Ministry of Justice concerning designations of court jurisdictions regarding the application of the provision of the preceding paragraph -- in Chōsen, Taiwan, Kwantung [Kantōshū], and the South Sea Islands [Nan'yō Guntō] -- the Governor-General of Chōsen, the Governor-General of Taiwan, the Governor [chief minister] of Kwantung, and the Governor [chief minister] of the South Seas Mandate [office, agency] shall carry them out. |
Japan"Japan" refers to all jurisdictions of the Empire of Japan inclusive of the Interior (including Karafuto), Chōsen, Taiwan, Kwantung, and the South Seas Islands. The authority of the Minister of Justice was limited to the Interior, hence the need to specify who would be responsible for overseeing court jurisdictions in other territories. Laws related to civil mattersThe laws referred to in Article 9 were as follows. 民事訴訟法 (Minji soshō hō) 人事訴訟手続法 (Jinji soshō tetsuzuki hō) "Personal litigation" refers to contentious matters involving changes (status actions) in family relationships. The older personal litigation law stipulated procedures for cases concerning dissolution of marriage or adoption alliances (Chapter 1), cases concerning parent-child relationships (Chapter 2), and cases concerning inheritance rights when a child sues for paternal recognition after a father's death. The new law covers family issues more generally. 非訟事件手続法 |
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[ Articles 10-12 omitted ] |
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| Criminal procedures | |
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Articles 13-19 concern procedures in criminal matters. |
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[ Articles 13-19 omitted ] |
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| 附則 | Supplementary provisions |
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1 本法施行ノ期日ハ勅令ヲ以テ之ヲ定ム但シ第三条ノ規定ニ付テハ別ニ其ノ施行期日ヲ定ムルコトヲ得 [ 以下の附則は省略 ] |
1. The date of enforcement of this law shall be determined by an imperial ordinance. However, regarding Article 3, it shall be possible to determine its enforcement date separately. [ Other supplementary provisions omitted ] |
Issues in 1898, 1918, and 2007 Law
Here I will consider a number of issues in domestic territorial and international laws of laws in Japan, including multiple nationality and statelessness in international matters, the status of Taiwan, Hokkaido, and Okinawa in the 1898 Rules of Laws, and Karafuto and Chōsen under the 1918 Common Law.
Two or more nationalities (multiple nationalities)
Treatment of multiple nationals and stateless persons in Japan has generally been in accord with standards of international private law.
According to both the older (1898) and newer (2007) laws, when determining which country's laws apply to person in Japan who has two or more nationalities, the person's nationality is taken to be the most recently acquired nationality.
However, except when one of the plural nationalities is Japanese, Japan's laws will apply.
Article 27 in 1898 law, Article 28 from 1990.
Article 38 in 2007 law.
No nationality (stateless)
Under both the 1898 and 2007 laws, people who have no nationality, meaning people who are stateless, are treated according to the law of the country in which they are considered to be domiciled -- or in which they are residing if their domicile is unknown.
Article 27 in 1898 law (Article 29 from 1990).
Article 38 in 2007 law.
Taiwan, Hokkaido, Okinawa prefecture, et cetera
Article 1 of the original 1898 Rules of Laws had a provision which gave the government more flexibility in how it specified when a law would come into effect in Taiwan, Hokkaido, Okinawa prefecture, and certain other islands.
Taiwan was included because it was not part of the Interior, defined by the prefectures.
Hokkaido and Okinawa were included because, while they were parts of the prefectural entity known by 1898 as the Interior (Naichi), their governments were less autonomous than those of other prefectures, in that they were partly overseen by specific agencies under the control of the Imperial Diet.
Karafuto and Chōsen would not join the sovereign empire until 1905 and 1910. Both were treated somewhat differently than either Taiwan, or Hokkaido and Okinawa.
The provision in paragraph 2 of Article 1, concerning Taiwan, Hokkaido, Okinawa, and certain other islands, was not deleted from the 1898 law until the 1989 revision effective from 1990.
Since the provision naturally lost its effectiveness for Taiwan when the San Francisco Peace Treaty came into effect in 1952, law makers saw no need to revise the wording. By the late 1980s, however, the entire provision had become essentially useless.
Here is the provision as it appeared until deleted from the law from 1990.
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1898 Rules of Laws (Law No. 10 of 1898) |
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Japanese textThe Japanese text is from Hoshino Eiichi, Matsuo Kōya, and Shiono Hiroshi, Shō roppō, Tokyo: Yūhikaku, Shōwa 63 nen ban [1988 edition], pages 36-37, which reflects revisions through Law No. 84 of 1986. Received English translationThe received English translation is from "Law Concerning the Application of Laws in General (Horei)", in Eibun Horei Sha's EHS Law Bulletin Series (Tokyo, 1975), EHS Vol. I, AB-AT, pages (I (AB 1) - I (AB 6). Structural English translationsThe structural English translations, shown in normal blue, are mine. The bold blue or bold green emphasis in these translations is also mine. CommentaryUnless otherwise specified, [square brackets] in received Japanese and English texts reflect my own commentary. Extended commentary is shown in cells below received texts. To facilitate commentary on specific words and phrases in received texts, I have highlighted the words and phrases in various bold colors according the following scheme.
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第一條 法律ハ公布ノ日ヨリ起算シ満二十日ヲ経テ之ヲ施行ス但法律ヲ以テ之ニ異リタル施行時期ヲ定メタルトキハ此限に在ラス 台湾、北海道、沖縄県其他島地ニ付テハ勅令ヲ以テ特別ノ施行時期ヲ定ムルコトヲ得 |
Article 1 A law shall come into force after the lapse of full twenty days computed from the day of its promulgation; Provided that the same shall not apply when the date of its enforcement is otherwise provided by the law. 2. As regards Formosa, Hokkaido, Okinawa Prefecture and other insular districts, a special date of the enforcement of a law may be fixed by Imperial Ordinance. |
Article 1 As for a [statute] law, [the government] shall enforce it [when] a full twenty days have passed computed from the day of [its] promulgation [by the Emperor (through 2 May 1947), by the Diet from 3 May 1947, as published in the Official Gazette]; provided, however, that this shall not apply when [the government] determines by law an enforcement date different from this. Regarding Taiwan, Hokkaidō, Okinawa prefecture, and [certain] other insular lands [places] [that are part of Japan's sovereign territory], it shall be possible for [the government] to determine a special [specific] enforcement date by imperial ordinance. |
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While naturally losing its effectiveness regarding Taiwan in 1952, the second paragraph of Article 1 continued to apply to Hokkaido (except for the Kuriles, which Japan also lost), but also to Okinawa prefecture and other islands over which Japan, though temporarily losing control and jurisdiction, retained residual sovereignty. Ogasawara was returned in 1968, and Okinawa reverted to Japan in 1972.
Applicable law in Okinawa
Government (Cabinet) Order No. 95 of 27 April 1972, called "Order concerning special measures for the application of Ministry of Justice related laws and orders associated with the reversion of Okinawa" (沖縄の復帰に伴う法務省関係法令の適用の特別措置等に関する政令), made provisions for easing the transition of Okinawa from the jurisdiction of the United States to the jurisdiction of Japan. The order was enforced from 15 May 1972, the day Okinawa returned to Japan's control and jurisdiction.
Okinawan wills
Article 13 of the 1972 order provided the following transitory measure concerning wills in Okinawa (my translation).
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(遺言の方式の準拠法に関する法律の適用に関する経過措置) 第十三条 遺言の方式の準拠法に関する法律（昭和三十九年法律第百号）は、沖縄においては、法の施行前に成立した遺言についても、適用する。ただし、遺言者が法の施行前に死亡した場合には、その遺言については、なお沖縄の法例（明治三十一年法律第十号）の規定の例による。 (Transitory measure concerning application of "Law concerning proper law of forms of wills") Article 13 The "Law concerning proper law of forms of wills" (Law No. 100 of 1964) shall apply also to wills established in Okinawa before the enforcement of the law. However, in the case the testator died before the enforcement of the law, the [testator's] will shall be pursuant to [treated in accordance with] the provisions of the "Rules of Laws" (Law No. 10 of 1898) of Okinawa. |
Law No. 100, promulgated on 10 June 1964 and enforced from 2 August 1964, related to the Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions.
The 1972 government order in effect declared that the 1964 law would apply to Okinawa in the same way it had applied to Japan at the time in came into effect in Japan in 1964 -- as though Okinawa had been part of Japan at the time. In other words, with regard to Okinawan legacy cases in which the testator had died before 2 August 1964, their wills would be treated according to the the 1898 law -- as in Japan before Okinawa's reversion.
Okinawan family registers
Article 14 of the same 1972 government order provided the following transitory measure for regarding family registers in Okinawa (my translation).
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(戸籍に関する経過措置) 第十四条 沖縄の戸籍法（千九百五十六年立法第八十七号）による戸籍は、戸籍法（昭和二十二年法律第二百二十四号）による戸籍とみなす。 (Transitory measure concerning family registers) Article 14 Family registers pursuant [made according] to the Family Register Law of Okinawa (Act No. 87 of 1956), shall be viewed as family registers pursuant [made according] to the Family Register Law (Law No. 224 of Shōwa 22 [1947]). |
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Note that the text of the 1972 (Shōwa 47) Japanese law faithfully differentiates the expressions used to designate the "statute" (Act, Law) and the "year" (Christian era year, Gengō year) in the cited Okinawan and Japanese laws. |
Karafuto
Karafuto had been partly under Japan's control and jurisdiction in 1875 when, under the Treaty of St. Petersburg, Japan swapped its interest in the territory for Russia's Kurile islands, which as part of Japan became the northern stretch of the Chishima islands. In 1905, after Russia ceded Karafuto to Japan in partial settlement to the Russo-Japanese War, the territory was rapidly settled and developed by people from the Interior.
Because Karafuto's laws were essentially based on Interior laws, the 1918 Common Law, while classifying the territory as a legal jurisdiction separate from the Interior, stipulated that for the purpose of the law it would be treated like the Interior. And in 1943, Karafuto was incorporated into the Interior as a prefecture.
Invaded and occupied by Soviet forces in August 1945, Karafuto and Chishima islands were separated from Japan under the terms of surrender. This separation was confirmed by provisions in the 1952 San Francisco Peace Treaty.
Because Karafuto had been governed under Interior-like laws even before it joined the Interior, conflicts of law were unlikely to arise in private matters involving Karafuto affiliates residing in, say, Hokkaido, Aomori, or Tokyo, or vice versa.
Chosen
Of all the non-Interior entities that were part of Japan's sovereign dominion before 1945, Chōsen was the least tethered to the Interior government. However, specific Chōsen laws and ordinances gradually became more like those in the prefectures.
Private matters involving Chosenese and Interiorites, in Chōsen or elsewhere, required determination of applicable law -- Chōsen, Interior, Taiwan, whatever. Family law matters involving a Chōsen man and an Interiorite woman were generally based on Chōsen family law, while those involving an Interiorite man and a Chosenese woman were based on Interior family law.
Family laws in both Chōsen and the Interior essentially centered on males -- meaning husbands in cases of marriage. However, Interior family law, and then Chōsen family law as it became Interiorized, accommodated husband adoption, and adoption of male heirs unrelated to the family by blood. Thus alliances of marriage and adoption between people affiliated with different territories might be governed by the law of the woman's land.
Note that the 1918 Common Law did not apply to register matters until Article 3 came into effect, which turned out to be 1 July 1921. This is important when considering the government's response to the so-called "independence movement" following the uprisings of 1 March 1919.
Divided Korea in Japan
The division of the Korean peninsula into two Korean states in 1948 did not at first complicate determinations of applicable law for Koreans in Japan in Japan for a number of reasons. First, Koreans in Japan, as Chosenese, remained Japanese nationals, subject in some cases to Chōsen laws because of their territorial status. After losing their Japanese nationality, they remained subject to Japanese laws, but as aliens -- and Chōsen laws could still apply in private matters.
Japan's normalization of relations with ROK in 1965 was a legal watershed. Even before normalization, however, Mindan, as an association of ROK nationals in Japan, was able to facilitate the application of ROK laws to its members. Since normalization, and the establishment of an ROK embassy and consulates, it has become much easier to apply ROK laws in private matters concerning aliens Japan recognizes as ROK nationals.
Japan has not yet recognized DPRK, and people who remain Chosenese as a legacy status are not recognized as DPRK nationals even when they claim to be. However, DPRK laws might also, in some circumstances, apply to a person in Japan who a court considers sufficiently close to DPRK to justify the application of its laws in a private matter.
The following sections introduce some examples of how ROK and DPRK laws might be applied in Japan.
For more about laws applicable to various kinds of Koreans in Japan, see also my review of Cho 2007 for Cho Kyongje's study of "Zainichi Kankoku/Chōsenjin no zokujinhō ni kan suru ronsō" [Disputes concerning the personal law of Kankoku/Chōsenjin in Japan].
Neither ROK nor DPRK recognized
From 1948-1965, Japan recognized neither the Republic of Korea (ROK) nor the Democratic People's Republic of Korea (DPRK), though from October 1951 Japan began formally negotiating with ROK to establish diplomatic relations.
Only ROK recognized
Japan's recognition of the Republic of Korea (ROK) in 1965 as the sole lawful government on the peninsula left the Democratic People's Republic of Korea (DPRK) as an unrecognized state.
Both ROK and DPRK recognized
At the time of this writing Japan still does not recognize the Democratic People's Republic of Korea (DPRK). However, both Koreas -- the Republic of Korea (ROK) and DPRK -- were simultaneously admitted to the United Nations in 1991. Japan in fact began normalization talks with DPRK early the same year, and by 2002 the two countries had held 12 rounds of such talks and agreed to continue to foster better relations with a view toward nromalization.
Such talks presume that Japan is free to recognize DPRK as a state without changing its recognition of ROK -- something was not possible in the case of its shift of recognition from the Republic of China (ROC) to the People's Republic of China (PRC) in 1972. However, Japan is not likely to recognize DPRK until ROK and DPRK establish normal diplomatic relations -- which is not likely to happen, given the continued standoff between the two states.
Another possible scenario is the collapse of DPRK as a state, resulting in ROK assuming control and jurisdiction over its territory. From its founding, ROK has presumed it has sovereignty over the entirety of territory of the former Empire of Korea, namely the territory of Chōsen which the Allied Powers had "liberated" from Japanese rule in 1945. Neither ROK nor DPRK recognize Japan's 1910 annexation of the Empire of Korea as Chōsen.