Saitama v. State, 2004

Key terms misrendered in English version of summary

The highlighted phrases are among several that are misrendered in the English version

The Japanese text accurately reflects the fact that, under the domestic laws of the Empire of Japan and of non-imperial Japan after the 1947 Constitution came into effect -- as well as under international law in the eyes of states that recognized Chosen as part of Japan -- all subjects of the Interior (naichi, i.e., the prefectures), and all subjects of Chosen and other exterior territories of the sovereign empire, were nationals of Japan, hence were Japanese.

"Chosen/Chosenese" -- not "Korea/Korean" -- properly refer to the entity of Chosen as part of Japan and the status of subjects affiliated with Chosen -- as distinct from entities and affiliates before annexation in 1910 and after retrocession in 1952.

"Interior/Interiorite" properly refers to the prefectures as an entity, and to persons whose family registers were affiliated with the prefectures.

Fatal flaws in wording of Japanese text of main judgment

Note that, while the terminology of the Japanese summary is accurate, the main text habitually and fatally errs in referring to Interior people as 日本人 (Japanese) -- even when referring to status actions that took place before the San Francisco Peace Treaty came into effect, when 朝鮮人 (Chosenese) were both subjects (臣民 shinmin) and nationals (国民 kokumin), and as such were Japanese (日本人 Nihon) under domestic law.

The discriminatory language of the English translation of the above summary, and the discriminatory language of the Japanese text of the main judgment (and of its English version), give the impression that the plaintiff was a woman who had been "Japanese" but became "Korean" when she married a "Korean" man. If so, then she lost her "Japanese nationality" when she married the man -- not in 1952.

In fact, a Japanese woman of Interior subnationality married a Japanese man of Chosen subnationality. Family law, as facilitated by family register law, recognized that a man and a woman were married only when they were registered as husband and wife in the same family register. So either the bride or the groom had migrate to the other's family register.

Except in cases of husband adoption, a bride migrated to the grooms register. As the plaintiff had been in an Interior register, and the man to whom she wished to be married was in a Chosen register, she migrated from her Interior register to his Chosen register, at which point she became a Chosen rather than Interior subject.

However, both the plaintiff and her husband were Japanese at the time of their marriage, and they remained Japanese until 1952 -- when, as a consequence of the peace treaty and Ministry of Justice Civil Affairs A No. 438 notification, sovereignty over Chosen, including its population registers, reverted to "Korea" and they lost their Japanese nationality.

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

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

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

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

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

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

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

Judicial precision

The Chosenese man and the Interiorite woman were both Japanese at the time the child was born. Under statute and customary law at the time, the child would have acquired Japan's nationality even if it had been registered in its Chosenese father's family register.

Did the justices make a mistake? For "Japanese" is very rarely used in Japanese law.

But "Japanese" is rather exceptionally used in the very law that would have applied to the "Interior woman" and her child but not to the "Chosenese man" -- who was not yet recognized as its father. And this is the only time the justices refer to the "Interiorite woman" or "Interiorite mother" -- or to anyone -- as "Japanese".

In fact, it appears that the justices have described the child's acquisition of Japan's nationality from the point of view of the 1899 Nationality Law in force at the time -- which applied to the Interior but not to Chosen -- Article 3 of which provides that "When the mother is Japanese (日本人), in the event the father is not known or [in] the event [he] does not possess a nationality, the child will be a Japanese (日本人)" (my structural translation).

The new 1950 Nationality Law replaced "Japanese" with "Japan national" (日本国民) -- the term used later in the ruling.

Japan includes Interior, Chosen and Taiwan

Japan was defined by the prefectural legal system that evolved from 1868 and was crowned by the 1890 Constitution, the 1898 Civil Code and Rules of Laws, and the 1899 Nationality Law. 1899 was the year extraterritoriality ended in Japan and Japan came into its own as a fully competent state.

As the successor of Taiwan (1895), Karafuto (1905), and Korea (1910), Japan included these territories, in addition to the Interior entity consisting of the prefectures. Karafuto, which had formerly been under Japanese rule, later became a prefecture.

The Supreme Court ruling speaks of the Interior, Chosen, Taiwan et cetera because these named and unnamed entities constituted Japan's sovereign and non-sovereign legal territory -- the object of the 1918 Common Law -- until the Peace Treaty came into force from 28 April 1952. Under the Common Law, Karafuto is treated as part of the Interior, since its legal system was already essentially the same as that of the prefectures.

The Chosenese father and the Interiorite mother are both Japanese at the time the child is born. The child became Japanese at the time its birth was registered, and would have been Japanese regardless of whether it was registered in its mother's or father's register. The issue is whether there were grounds for changing the child's registration from its mother's Interior register to its father's Chosen register.

Child not exactly "illegitimate"

The phrase in ruling -- "his out-of-wedlock child" -- reflects その庶子 (sono shoshi) -- in which その (sono) pronominally refers to the "Chosenese father" while 庶子 (shoshi) represents the then legal term for a "paternally acknowledged out-of-wedlock child". Until postwar revisions of the Civil Code and Family Register Law went into effect from 1 January 1948, this was one of three legal statuses possible for a child when registering its birth.

The "illegitimate" metaphor is misleading because it gives the impression that the child is somehow "illegal" -- which is not entirely true. If its birth has been registered, a child has legal status regardless of the relationship of its parents.

The term 嫡 (chaku) refers to a man's wife by marriage, or to a child he presumably fathered with such a wife.

In contrast, 庶 (sho) -- attributively "miscellaneous" or "common" -- was used with 子 (ko, shi) when referring to a child a man fathered with a mistress, lover, or any woman other than his wife of legal record -- i.e., out of wedlock. Family law at the time, which generally favored males as fathers or sons, facilitated non-marital relationships by men to the extent of providing a special category for offspring they sired outside of marriage and acknowledged. In this regard, 庶子 (shoshi) signified a child that had been legally acknowledged by its father, and gained a legal standing derived from such recognition -- and was therefore not exactly an "illegitimate child".

1915 Family Register Law

The old Family Register Law (Law No. 26 of 1914, enforced from 1 April 1915), as revised through 1947, required that, when filing notification of a child's birth, the child be classified as "wedlock child, paternally-acknowledged out-of-wedlock child, or child who is neither a wedlock child nor a paternally acknowledged out-of-wedlock child" (嫡出子、庶子又ハ嫡出子若クハ庶子ニ非サル子) [Article 69 of Section 2 (Birth) of Chapter 4 (Notifications)].

"wedlock child" (嫡出子 chakushutsushi) -- literally "child of issue of [principle, legal] wife" -- applied to a child who would be registered in the register of its married parents as their child. The father was expected to file the notification of birth, the mother when he was unable to (Article 72). By law the married parents had to be in the same register, meaning they shared the same family name, which became the child's family name. The child might not have been fathered by the husband, but the Civil Code stipulated that the child of a married woman was presumed to have been of the marriage if born a specified number of days after the marriage and within a certain number of days after a divorce.

"paternally acknowledged out-of-wedlock child" (庶子 shoshi) -- literally "child of some [woman other than wife]" -- applied to a child acknowledged by a man who was not married to its mother. The acknowledging father was expected to file the birth notification, which served as an acknowledgment (Article 72). The child would then be entered in his family register as his, born to a woman who was not his wife. If the man were married, his wife would also be in the register, but it would be clear that she was not the child's mother. There are cases in which the child's mother was also in the register, but it was clear that she is not his wife. The child, when registered in the father's register, assumed the family name shared by everyone in the register.

The birth notification of a child who was born out of wedlock, and would not at the time be acknowledged by its father, was supposed to be filed by the child's mother. It would then be entered in her register and assume the family name of the register. If the father later acknowledged the child, its status would be changed to that of a paternally acknowledged out-of-wedlock child. If he later married the mother, prior or later acknowledgement would result in the child being reclassified as a wedlock child.

The term "privately born child" (私生子 shiseishi) was apparently used in the 1914 law until 1942, when supposedly it was replaced by "non issue-of-wedlock child" (非嫡出子 hi-chakushi), which was phrased (as seen above) "child who is not . . . an issue of wedlock child" (嫡出子 . . . ニ非サル子 chakushutsushi ni hi zaru ko).

1948 Family Register Law

The current Family Register Law (Law No. 224 of 1947), enforced from 1 January 1948, requires only that a child be differentiated as either "issue of wedlock child" or "child who is not an issue of wedlock" (嫡出子又は嫡出でない子 chakushutsushi mata wa chakushutsu de nai ko) [Chapter 4, Section 2, Article 49, paragraph 2(1)]. The 1948 Civil Code also uses "child who is not an issue of wedlock" (嫡出でない子 chakushutsu de nai ko) [Article 779]" and characterized such a child who has been acknowledged by its father as a "child the father has acknowledged" (父が認知した子 chichi ga ninchi shita ko) [Article 779].

The standard English translations of these three expressions are respectively "legitimate child", "child who is not legitimate", and "child acknowledged by its father".

Acquisition and loss of nationality

Section 17 (Acquisition and loss of nationality) of Chapter 4 (Notifications) of the 1914 Family Register Law had articles concerning notifications of acquisition of nationality by an alien because or an adoption alliance or marriage (Article 147), or acknowledgement (Article 148), or naturalization (Article 149). Article 149, which covered notifications of loss of nationality, required that the cause of loss be stated.

Article 102 (Chapter 4, Section 14) of the 1948 Family Register Law covers notification of acquisition of nationality meaning other than at time of birth, while Article 3 covers notification of loss of nationality.

Since 1899, acquisition and loss of nationality has always been governed by the Nationality Law. The Family Register Law simply facilitates the effects of nationality acquisition and loss on family register status -- since family registers double as national registers.

Presumptive "Chosen nationality"

The statement is a very precise summary of the effects of the San Francisco Peace Treaty, which is closely paraphrased at the beginning -- and the Ministry of Justice notification (Civil Affairs A No. 438 notification of 1952), parts of which are also paraphrased practically verbatim at the end. The received translation utterly fails to capture the meaning texture.

There was, of course, no state called Chosen and hence no Chosen nationality. The effects of the treaty were that Japan had released its sovereignty over Chosen to the state that would legally qualify as the successor to the territory. Japan presumed the existence of such a state, and Japan presumed that Chosenese had gained the nationality of this presumptive state -- and in doing so had lost Japanese nationality.

In Japan's eyes, this presumptive state turned out to be the Republic of Korea. However, Japan did not formally recognize ROK as such until the signing, promulgation, and enforcement of a normalization treaty with ROK in 1965, in which Japan acknowledged that ROK was the only lawful government of Chosen, in accordance with a 1948 United Nations General Assembly resolution.

Between 1952 and 1965, then, "Chosen" continued to be the presumptive state whose presumptive nationality "Chosenese" possessed. And even after 1965, former Japanese of Chosen affiliation in Japan, who had not migrated to ROK nationality, were presumed to possess this presumptive nationality. There being no "Chosen" state, however, they were de facto stateless.

Common Law

By the end of the World War, Japan consisted of several legally different territories, hence the need for Common Law of 1918. This was a domestic law of laws, designed to resolve "conflict of law" issues between the territories of Japan in the same way that the Rules of Laws of 1898 dealt with such issues between Japan and foreign countries.

However, Taiwan and Chosen family law, as modified under Japanese rule, shared the most essential provisions of Interior family law regarding migration between registers. Any move from one register to the other -- on account of status actions like marriage, adoption, or acknowledgement -- resulted in at least a change in family affiliation, if not also higher level nested affiliations -- local, prefectural or provincial, or territorial. The Nationality Law provided only for changes in national affiliation engendered by status actions between Interiorites or Taiwanese and aliens, while customary Chosen law determined the effects of status actions between Chosenese and aliens.

The territorial nature of law within Japan as a multiple-territory state, de facto from 1895 to 1945 and de jure until 1952, is the legal foundation for my contention elsewhere that the Interior, Taiwan, Karafuto, and Chosen constituted different subnations within the nation of the Empire of Japan, each defined by the population affiliated with its specific legal territory.

For more about both the 1898 Rules of Laws and the 1918 Common Law, see Status and applicable law: Governing the civil affairs of territorialized persons.

Territoriality

"Territoriality" was not a legal term -- hence the "so-called" qualification in the ruling -- conspicuously lost in what is an extremely lose translation. The phrasing of the received translation most seriously distorts the ruling by representing it as having held that the Common Law "prescribed" register migration within Japan "in accordance with provisions of" the Nationality Law -- which was not possible, since the Nationality Law made no provisions whatever about the acquisition or loss of so-called "territoriality" -- which was not a legal term.

Japan, until it formally lost Taiwan and Chosen de facto from 1945 and de jure from 1952, was a multi-territorial state with a single nationality. Just as nationality reflects literally "national register" (国籍 kokuseki), territoriality reflects literally "territorial register" (地域籍 chiikiseki). The concept of "territoriality" was not, however, codified in Japanese law. It was merely an effect of the rules that were used, first in the prefectures, then in the exterior territories, to facilitate changes in family status.

Japan has always based affiliation with its sovereign territory on membership in a family register governed by a village, town, city, or other such local government in the territory. Such local polities were in turn affiliated with a prefecture in the Interior territory, or with a province or other administrative region in Taiwan, Karafuto, or Chosen -- and the Interior, Taiwan, Karafuto, and Chosen were affiliated with Japan.

Since affiliation is essentially territorial, movement between registers, and movement of the registers themselves, result in changes of affiliation. When villages changed prefectural affiliation, their registers also changed affiliation. Taiwanese and Chosenese gained Japanese nationality when Taiwan and Chosen became part of Japanese territory, and lost nationality when Taiwan and Chosen ceased being part of Japan.

For more about both the 1898 Rules of Laws and the 1918 Common Law, see Subnationality and integration: The merging of exterior polities into the interior for a full discussion of territoriality with the Empire of Japan.

Old Nationality Law

Old Nationality Law refers to Law No. 66 of 1899, promulgated on 16 March and enforced from 1 April 1899. Articles 5 and 6 concern acquisition of nationality by aliens through marriage, adoption, and acknowledgement. Articles 18 and 19 concern loss of nationality through marriage or adoption. Article 23 concerns loss of nationality through acknowledgement.

See 1899 Nationality Law: "The conditions necessary for being a Japanese subject" for an overview of this law.

Not "quasi-nationality"

The ruling does not equate "territoriality" with "quasi-nationality". It merely observes that "territoriality" among the multiple territories of Japan worked like "nationality" regarding basic rules of gain and loss through status actions. Territoriality was gained and lost under the Common Law in the same manner that nationality was gained and loss under the cited articles of the Nationality Law then in operation.

The cited articles of the Nationality Law governed gain and loss of nationality as an effect of a status action -- such as marriage, adoption, or acknowledgement -- between persons of different nationalities. These articles were based on, and precisely reflected, the principles of family law that governed migration between family registers -- hence between family entities.

In the spirit of law

The fact that the directive was issued five months after the new Nationality Law came into force suggests that the Ministry of Justice had not anticipated the effect of the law on the treatment of a child born to a woman affiliated in one territory by a man affiliated with another territory. There was probably a query from a local registrar who, attempting to apply contemporary statutes and customary practices, tripped over the fact that the new Nationality Law had no provisions for acknowledgement.

The Nationality Law did not itself govern register migration: register matters fell under the Family Register Law, which itself facilitated family law provisions in the Civil Code. However, it was clear that removal of anyone from an Interior register would constitute loss of status as "Japanese" under GHQ/SCAP rules. And this would probably jeopardize one's Japanese nationality when it came time for treaty settlements.

More to the point of the ruling, though, customary territorial registration practices under the Common Law of 1918 did regard territorial register migrations within Japan's sovereign territory -- the Interior, Chosen, and Taiwan -- as analogous to changes of affiliation between states -- hence the practice of following the spirit of the Nationality Law in movements occasioned by status actions like marriage, adoption, and acknowledgement.

Again, this was not because the Nationality Law applied to interterritorial register matters, but because its provisions regarding change of nationality by marriage, adoption, and acknowledgement had incorporated the principles of register migration in family and family registration law -- hence served as a model for administrating register affairs between territories.

The Chosenese father's acknowledgement was not itself an issue. Only the effects of his acknowledgement on his child's (the appellee's) Interior family register status was an issue. Japan no longer had control or jurisdiction of Chosen registers, which by then were under the laws of either ROK or DPRK.