Saitama v. State, 2004

Child of Interior woman and Chosen man did not lose nationality

By William Wetherall

First posted 18 July 2008
Last updated 21 June 2014


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


Overview of Saitama v. State, 2004

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

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Origins of case

Saitama was born in 1945 to an Interior woman and a Chosenese man who were not married.

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Ruling in case

The ruling of a Petit Bench of the Supreme Court confirmed that Saitama had the nationality of Japan.

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Chronology of case

Chronology of events leading up to Saitama v. State, 2004

14 August 1945

X [Saitama] was born to an Interiorite (内地人 Naichijin) mother B who was not married to the Chosenese (朝鮮人 Chosŏnjin father A. The mother's principle register (本籍 honseki) was in Saitama prefecture and the father's principle register was in Chōsen Keishō Nandō (朝鮮慶尚南道 Kyŏngsangnamdo).

8 September 1950

Father A acknowledged that X was his child.

More to come.

Forthcoming.

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Quality of opinions

The Supreme Court's judgment is in accordance with the law.

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Quality of translations

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

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Sources, presentation, and commentary


Received Japanese text of ruling

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

Received English translation

The English version was extracted from an html file retrieved by a query in the English section of the same Courts in Japan website. A disclaimer at the bottom of the translation, which is not attributed, reads "This translation is provisional and subject to revision."

Structural English translation

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

Formatting, commentary, and markup

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

Underscoring

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

Parentheses

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

Square and angle brackets

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

Structural translations and commentary

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

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

Color highlighting

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

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


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

the annexation of Korea by Japan
→ the union of Japan and Chōsen

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

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

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

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

Osaka High Court

原審裁判所名:大阪高等裁判所

原審事件番号:平成11(行コ)34

原審裁判年月日:平成12年01月28日

Court of original instance: Osaka High Court

Original instance case number: Heisei 11 [1999] (Gyo-Ko) 34

Date of original decision: 28 January 2000 [Heisei 12]

Supreme Court

事件番号:平成12(行ヒ)149

事件名:国籍確認請求事件

裁判年月日:平成16年07月08日

法廷名:最高裁判所第一小法廷

裁判種別:判決

結果:棄却

判例集巻・号・頁:第58巻5号1328頁

Case number: Heisei 12 [2000] (Gyo-Hi) 149

Case name: Nationality confirmation request case

Date of judgment: 8 July 2004 [Heisei 16-07-08]

Court name: Supreme Court, First Petit Bench

Type of judgment: Ruling

Results: Dismissed

Hanreishū [Court Reports] Volume, Number, Page:
Volume 58, Number 5, Page 1328

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

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

Structural translation

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

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

内地人女性の嫡出でない子であって国籍法の施行後に朝鮮人男性により認知されたものは,平和条約の発効によっても日本国籍を失わない。

A child who was born, out of wedlock, to a native Japanese mother and a Korean father and was acknowledged by the father after the enforcement of the Nationality Law dose (sic / does) not lose Japanese nationality despite the effectuation of the Peace Treaty.

Structural translation

A person who is a child not of wedlock of an Interiorite woman and was acknowledged by a Chosenese man after enforcement of the Nationality Law, shall not lose Japan's nationality even with effectuation of the Peace Treaty.

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.

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参照法条 Relevant laws
Received Japanese text Received English translation

憲法10条,共通法(大正7年法律第39号)3条,旧国籍法(昭和25年法律第147号による廃止前のもの)23条,国籍法(昭和59年法律第45号による改正前のもの)8条,国籍法(昭和59年法律第45号による改正前のもの)9条, 国籍法(昭和27年法律第268号によ改正前のもの)10条, 日本国との平和条約2条(a)項

Article 10 of the Constitution, Article 3 of the Common Law (Law No. 39 of 1918), Article 23 of the Old Nationality Law (before abolishment by Law No. 147 of 1950), Articles 8 and 9 of the Nationality Law (before amendment by Law No. 45 of 1984), Article 10 of the Nationality Law (before amendment by Law No. 268 of 1952), and Article 2(a) of the Treaty of Peace with Japan

Articles cited in above references

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

憲法10条

日本国民たる要件は、法律でこれを定める。

Article 10 of the Constitution

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

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

Structural translation

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

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

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

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

共通法(大正7年法律第39号)3条

一ノ地域ノ法令ニ依リ其ノ地域ノ家ニ入ル者ハ他ノ地域ノ家ヲ去ル

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

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

[1.] A person who enters a family in a region under the law of the region shall withdraw from a family in another region.

2. A person who may not withdraw from a family in a region under the law of the region may not enter a family in another region.

Structural translation

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

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

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

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

旧国籍法(昭和25年法律第147号による廃止前のもの)23条

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

Article 23 of the Old Nationality Law (before abolishment by Law No. 147 of 1950)

A Japanese child shall lose Japanese nationality when he has acquired foreign nationality due to acknowledgement; provided that, however, this shall not apply if the child becomes a wife, husband, or adopted child of a Japanese national.

1929 received translation

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

Structural translation

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

国籍法(昭和59年法律第45号による改正前のもの)8条

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

Article 8 of the Nationality Law (before amendment by Law No. 45 of 1984)

A Japanese national shall lose Japanese nationality when he has acquired foreign nationality of his own free will.

1950 standard translation

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

Structural translation

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

国籍法(昭和59年法律第45号による改正前のもの)9条

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

Article 9 of the Nationality Law (before amendment by Law No. 45 of 1984)

A Japanese national who was born in a foreign country and acquired nationality of the country by birth shall lose Japanese nationality retrospectively from the time of the birth, unless he declares his intention to retain his Japanese nationality in accordance with the provisions of the Family Registration Law (Law No. 224 of 1947).

1950 standard translation

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

Structural translation

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

国籍法(昭和27年法律第268号によ改正前のもの)10条

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

2   国籍を離脱するには、法務総裁 法務大臣に届け出なければならない。

3   国籍を離脱した者は、日本の国籍を失う。

Article 10 of the Nationality Law (before amendment by Law No. 268 of 1952)

1. A Japanese national who has foreign nationality may renounce his Japanese nationality.

2. Such person who intends to renounce his Japanese nationality shall make notification to the Director-General of Justice.

3. Such person who has renounced his Japanese nationality shall lose Japanese nationality.

1950 standard translation

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

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

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

Structural translation

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

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

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

日本国との平和条約2条(a)項

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

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

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

Official English version

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

Structural translation of Japanese version

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

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

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

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

本件上告を棄却する。
上告費用は上告人の負担とする。

The jokoku appeal shall be dismissed.
The jokoku appellant shall bear the whole cost of the jokoku appeal.

理由 Reasons

上告代理人山崎潮ほかの上告受理申立て理由について

  1  原審の適法に確定した事実関係等の概要は,次のとおりである。

[1]   (1)  被上告人は,昭和20年8月14日,朝鮮慶尚南道本籍を有する朝鮮人男性Aを父とし,当時埼玉県に本籍を有した内地人女性Bを母とする非嫡出子として出生し,日本人母の子として日本国籍を取得した。

Concerning the grounds for the petition for accepting the jokoku appeal argued by the attorney for jokoku appellant YAMAZAKI Ushio and other attorneys.

1. The outline of the facts legally determined by the judgment of the second instance is as follows.

[1] (1) The jokoku appellee was born, out of wedlock, on August 14, 1945, to a Korean father, A, who has a permanent domicile in Gyeongsangnam-do, Korea, and a Japanese mother, B, who had at that time a permanent domicile in Saitama, Japan. The jokoku appellant acquired Japanese nationality as a child of a Japanese mother.

[1] Structural translation

The appellee [in the case appealed to this court], on 14 August 1945, was born as a child out of wedlock -- the father being a Chosenese man A who possesses a principle register in Keishō Nandō [Kyŏngsangnamdo] in Chosen, the mother being an Interiorite woman B who at the time possessed a principle register in Saitama prefecture -- and acquired Japan nationality as a child of the Japanese mother.

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.

  (2)  Aは,昭和25年9月8日,被上告人を認知した(以下,この認知を「本件認知」という。)。

[2]   (3)ア  昭和27年4月28日に日本国との平和条約(以下「平和条約」という。)が発効する前の我が国においては,内地,朝鮮,台湾等の異法地域に属する者の間で身分行為があった場合,その準拠法は,共通法(大正7年法律第39号)2条2項によって準用される法例(平成元年法律第27号による改正前のもの)の規定によって決定されることとなり,朝鮮人父が内地人母の子を認知した場合の認知の効力については,認知者である父の属する地域である朝鮮の法令が適用されることとされていたが,朝鮮民事令(明治45年制令第7号)1条及び11条によれば,旧民法(昭和22年法律第222号による改正前のもの)827条2項によることとされ,子は,朝鮮人父の認知により,その庶子となるものとされていた。

(2) On September 8, 1950, A acknowledged the jokoku appellee (this acknowledgment shall hereinafter be referred to as the "Acknowledgement").

[2] (3) (a) In Japan, before the effectuation of the Treaty of Peace with Japan (hereinafter referred to as the "Peace Treaty") on April 28, 1952, in cases where an act relating to the status of person was conducted between people who belonged to regions where different laws were applicable, e.g. Japan, Korea, and Taiwan, the law applicable to the act should be determined in accordance with the provisions of the Law Concerning Application of Laws in General (before amendment by Law No. 27 of 1989), which applied mutatis mutandis under Article 2, para. 2 of the Common Law (Law No. 39 of 1918), and therefore the effect of an acknowledgement by a Korean father of a child born to a native Japanese mother was supposed to be governed by a law of Korea, the region to which the acknowledging person (the father) belonged. Articles 1 and 11 of the Decree on Civil Affairs in Korea (Decree No. 7 of 1912) provided that Article 827, para. 2 of the Old Civil Code (before amendment by Law No. 222 of 1947) should be applicable to the effect of such acknowledgement, and in consequence, a child born to a Korean father and a native Japanese mother was supposed to be an illegitimate child of the father by his acknowledgement.

[2] Structural translation

(3) (a) In our country before the Peace Treaty with Japan (hereafter called "Peace Treaty") came into effect on 28 April 1952, in the event there was a status action between persons affiliated with different legal territories, namely the Interior, Chosen, Taiwan et cetera, its applicable law was determined in accordance with provisions in the Rules of Laws (before revision by Law No. 27 of 1988), which is applied mutatis mutandis in accordance with Article 2 paragraph 2 of the Common Law (Law No. 39 of 1918); and with respect to the effect of acknowledgement in the event a Chosenese father acknowledged the child of an Interiorite mother, the laws and ordinances of Chosen, being the territory with which the acknowledging father is affiliated, were taken as [the law] to be applied, and in accordance with Article 1 paragraph 11 of the Chosen Civil Matters Ordinance (Decree No. 7 of 1912), [the applicable law] was taken to be Article 827 paragraph 2 of the Old Civil Code (before revision by Law No. 222 of 1947), and the child, due to the acknowledgement of the Chosenese father, was held to be one who had become his paternally-acknowledged out-of-wedlock child.

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.

  また,朝鮮民事令11条により,朝鮮人の親族相続に関しては,前記認知に関する規定のように別段の規定があるものを除き,朝鮮慣習が適用されることとされており,朝鮮慣習によれば,朝鮮人父の認知によりその庶子となった子は,戸主の同意を要することなく,当然に朝鮮人父の家に入ることとされていた。

  したがって,朝鮮人父が内地人母の子を認知した場合には,子は,上記のとおり庶子となって朝鮮人父の家に入り,父の朝鮮戸籍に入籍することとされていた。

  イ  共通法3条1項は,「一ノ地域ノ法令ニ依リ其ノ地域ノ家ニ入ル者ハ他ノ地域ノ家ヲ去ル」とし,同条2項は,「一ノ地域ノ法令ニ依リ家ヲ去ルコトヲ得サル者ハ他ノ地域ノ家ニ入ルコトヲ得ス」としており,異法地域に属する者の間で身分行為があった場合,一の地域の法令上入家という家族法上の効果が発生するときには,他の地域においても原則としてその効果を承認して去家の原因とすることを定めていた。その結果,戸籍に関しても,一の地域の戸籍から他の地域の戸籍への移動という効果を生ずることとされていた。したがって,後記の国籍法改正による影響を考慮しない限り,内地人母の子が,朝鮮人父の認知によりその庶子となり,朝鮮人父の家(朝鮮戸籍)に入る場合は,内地戸籍から除籍されることとなる。

[3]   ウ  平和条約の発効により,我が国が,朝鮮の独立を承認して,朝鮮に対するすべての権利,権原及び請求権を放棄したことに伴い,それまで日本の国内法上で朝鮮人としての法的地位を有していた人,すなわち,朝鮮戸籍令(大正11年朝鮮総督府令第154号)の適用を受け朝鮮戸籍に登載されるべき地位にあった人は,元来日本人で朝鮮人との身分行為によって朝鮮戸籍に入籍すべき事由の生じた人を含め,朝鮮国籍を取得し,日本国籍を喪失したものと解されている(最高裁昭和30年(オ)第890号同36年4月5日大法廷判決・民集15巻4号657頁,最高裁昭和33年(あ)第2109号同37年12月5日大法廷判決・刑集16巻12号1661頁,最高裁昭和38年(オ)第1343号同40年6月4日第二小法廷判決・民集19巻4号898頁,最高裁平成6年(行ツ)第109号同10年3月12日第一小法廷判決・民集52巻2号342頁参照)。

Article 11 of the Decree on Civil Affairs in Korea also provided that Korean custom should be applicable to matters concerning relatives and inheritance of Korean people, except for those otherwise provided such as acknowledgement. According to Koran custom, a child who became an illegitimate child of a Korean father by his acknowledgment should necessarily enter the Korean father's family without the consent of the head of the family.

Therefore, a child who was born to a Korean father and a native Japanese mother and was acknowledged by the father should become the illegitimate child of the Korean father as well as a member of the father's family, thereby entering the father's Korean family register.

(b) Article 3, para. 1 and 2 of the Common Law provided as follows: "A person who enters a family in a region under the law of the region shall withdraw from a family in another region"; "A person who may not withdraw from a family in a region under the law of the region may not enter a family in another region." Under these provisions, where an act relating to the status of person was conducted between people who belong to regions where different laws were applicable, if such act brought about an effect under a family law of one of the regions, i.e. entry in a family, the effect of the act should in principle be recognized in the other region and should result in the withdrawal from a family in the other region. Consequently, such act was supposed to bring about the effect of transferring a person from a family register in one of the regions to a family register in the other region.

Therefore, without taking into account the effect of the amendment of the Nationality Law discussed later, where a child born to a native Japanese mother and a Korean father has been acknowledged by the father and entered the father's Korean family as an illegitimate child, the child shall be excluded from the Japanese family register.

[3] (c) Upon the effectuation of the Peace Treaty, Japan recognized the independence of Korea and renounced all rights, titles and claims to Korea. In consequence, people who had previously had legal status as Korean people under Japanese laws -- or more specifically, those who had been governed by the Decree on Korean Family Registration (Korean Governor Office Decree No. 154 of 1922) and who should be entered in Korean family registers, including those who became (sic = came) to have a reason to be entered into Korean family register due to an act relating to the status of person that was conducted between Japanese people and Korean people -- are regarded as having acquired Korean nationality while losing Japanese nationality (See 1955(O)No. 890, judgment of the Grand Bench of the Supreme Court of April 5, 1961, Minshu Vol. 15, No. 4, at 657, 1958(A)No. 2109, judgment of the Grand Bench of the Supreme Court of December 5, 1962, Keishu Vol. 16, No. 12, at 1661, 1963(O)No. 1343, judgment of the Second Petty Bench of the Supreme Court June 4, 1965, Minshu Vol. 19, No. 4, at 898, 1994(Gyo-Tsu)No. 109, judgment of the First Petty Bench of the Supreme Court of March 12, 1998, Minshu Vol. 52, No. 2, at 342).

[3] Structural translation

Concomitant with the matter [circumstances] in which, due to the effectuation of the Peace Treaty, our country, recognizing the independence of Chosen, abandoned all right, title, and claim toward Chosen, persons who until then had possessed legal status as a Chosenese under the domestic laws of Japan -- namely, persons who had been subject to the application of the Chosen Family Register Ordinance (1922 Government-General of Chosen Decree No. 154) and had been of a status that would be recorded in a Chosen family register, including persons who originally had been Japanese and for whom cause occurred to enter into a Chosen family register due to a status action with a Chosenese -- are understood to be those who had acquired Chosen nationality, and lost Japan nationality . . . .

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.

  エ  旧国籍法(明治32年法律第66号)23条本文は,「日本人タル子カ認知ニ因リテ外国ノ国籍ヲ取得シタルトキハ日本ノ国籍ヲ失フ」と規定していたが,昭和25年7月1日から国籍法(昭和25年法律第147号)が施行され,その附則により旧国籍法が廃止された。

  国籍法は,日本国籍の喪失については,自己の志望により外国籍を取得した場合(昭和59年法律第45号による改正前の8条),外国で生まれたことによってその国の国籍を取得した日本国民が戸籍法の定めるところにより日本の国籍を留保する意思を表示しなかった場合(昭和59年法律第45号による改正前の9条),外国の国籍を有する日本国民が届出により日本の国籍を離脱する場合(昭和27年法律第268号による改正前の10条)を挙げるのみで,認知等の身分行為により日本国籍を失う旨の規定は設けられなかった。

  2  原審は,内地戸籍から除籍されて朝鮮戸籍に入籍することは,後の平和条約の発効に伴い日本国籍を失うという結果をもたらすものであるところ,昭和25年7月1日に国籍法が施行されて,日本人たる子が外国人父の認知という一方的意思表示によっては日本国籍を失わないこととされた後においては,朝鮮人父に認知された内地人母の子は,共通法3条2項にいう「一ノ地域ノ法令ニ依リ家ヲ去ルコトヲ得サル者」に該当し,朝鮮戸籍に入籍するべき者には該当せず,平和条約の発効によっても日本国籍を喪失しないとして,被上告人の日本国籍を有することの確認を求める請求を認容すべきものとした。

  3  当裁判所の判断は,次のとおりである。

[4]   共通法3条は,内地,朝鮮,台湾等の地域ごとに,適用法令が異なるという当時の制度を前提として,旧国籍法5条,6条,18条,19条,23条等の内容に準じていわゆる地域籍の得喪を定める規定であり,地域籍は,当時の法制の下において,上記の地域ごとに国籍に準ずる役割を果たしていた

(d) The main text of Article 23 of the Old Nationality Law (Law No. 66 of 1899) provided as follows: "A Japanese child shall lose Japanese nationality when he has acquired foreign nationality due to acknowledgement." The Old Nationality Law was abolished under the supplementary provisions of the Nationality Law (Law No. 147 of 1950) that came into force on July 1, 1950.

As causes of the loss of Japanese nationality, the New Nationality Law only prescribed cases where a Japanese national acquired foreign nationality of his own free will (Article 8 of the Nationality Law before amendment by Law No. 45 of 1984), where a Japanese national who was born in a foreign country and acquired nationality of the country by birth failed to declare his intention to retain his Japanese nationality in accordance with the provisions of the Family Registration Law (Article 9 of the Nationality Law before amendment by Law No. 45 of 1984), and where a Japanese national who has foreign nationality renounced his Japanese nationality by making notification (Article 10 of the Nationality Law before amendment by Law No. 268 of 1952), and the Law did not include any provision that regards an act relating to the status of person, such as an acknowledgment, as a cause of the loss of Japanese nationality.

2. The court of the second instance upheld the jokoku appellee's claim for confirmation that the jokoku appellee had Japanese nationality, on the following grounds: the entry into a Korean family register after the exclusion from a Japanese family register would result in the loss of Japanese nationality upon the subsequent effectuation of the Peace Treaty; however, in accordance with the Nationality Law that came into force on July 1, 1950, a Japanese child shall not lose Japanese nationality by an acknowledgement, the father's unilateral declaration of intent; in consequence, a child who was born to a native Japanese mother and a Korean father and acknowledged by the father shall fall under the category of "a person who may not withdraw from a family in a region under the law of the region" set forth in Article 3, para. 2 of the Common Law and shall not fall under the category of a person who is to enter a Korean family register, and therefore the child shall not lose Japanese nationality despite the effectuation of the Peace Treaty.

3. The Supreme Court makes the following judgment.

[4] Article 3 of the Common Law, based on the institutional arrangement at that time in which different laws were applicable depending on regions, e.g. Japan, Korea, and Taiwan, prescribed the acquisition or loss of regional registry in accordance with the provisions of Articles 5, 6, 18, 19, 23 of the Old Nationality Law. Under the laws of that time, regional registry served as quasi-nationality in individual regions.

[4] Structural translation

Article 3 of the Common Law is a provision that -- presuming the system at the time, namely in which applied laws and ordinances are different in each of the territories of the Interior, Chosen, Taiwan et cetera -- determines acquisition and loss of so-called territoriality in conformity with the content of Article 5, Article 6, Article 18, Article 19, Article 23 et cetera of the Old Nationality Law, and territoriality, under the legal system at the time, played a role in each of the above territories that conforms with nationality.

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.

  前記のとおり,旧国籍法23条本文は「日本人タル子カ認知ニ因リテ外国ノ国籍ヲ取得シタルトキハ日本ノ国籍ヲ失フ」と規定していたところ,昭和25年7月1日施行の国籍法は,自己の意思に基づかない身分行為によって日本国籍を失うという法制は採用せず,旧国籍法23条の規定も廃止した。地域籍の得喪が,旧国籍法の前記規定に準じて定められていたことに照らすと,上記のような法制の変動の結果,上記の国籍法施行日以降においてされた親の一方的な意思表示による認知は,もはや地域籍の得喪の原因とはならなくなったものというほかはなく,朝鮮人父によって認知された子を内地戸籍から除籍する理由はなくなったものというべきである。

[5]   昭和25年12月6日付け法務府民事局長通達「朝鮮又は台湾と内地間における父子の認知について」は,「標記の件に関する従前の内地における戸籍の取扱については,旧国籍法第5条第3号,同法第23条,戸籍法第22条及び同法第23条の各規定の精神に則り,内地人男朝鮮,台湾に本籍を有するの出生した子を認知した場合は,子は内地に新戸籍を編製し,また,朝鮮,台湾に本籍を有する内地人女の出生した子を認知した場合は,子は内地の戸籍から除くこととされていた。右戸籍の取扱は,今後はこれを改め,前記各場合の認知によっては子の戸籍に変動を生じないこととした。」と定めているが,これは,前記の説示と同じ趣旨の下に,地域籍についても,朝鮮又は台湾と内地間における父子の認知に関する従前の取扱いを新しく施行された国籍法の趣旨に準じた取扱いに改めたものである。そうすると,上記民事局長通達の取扱いを,同通達発出日の昭和25年12月6日以降の認知に限定する理由はなく,前記説示のように,国籍法施行の同年7月1日以降の認知についても,同様の取扱いを行うべきである。そうすることによって,法の下の平等の精神にも沿うことになるのである。

As mentioned above, the main text of Article 23 of the Old Nationality Law provided that "a Japanese child shall lose Japanese nationality when he has acquired foreign nationality due to acknowledgement." The New Nationality Law, which came into force on July 1, 1950, ruled out the system in which a Japanese national would lose Japanese nationality due to an act relating to the status of person that was not relevant to his intention, and abolished the provision of Article 23 of the Old Nationality Law. Considering that the acquisition or loss of regional registry was prescribed in accordance with that provision of the Old Nationality Law, we can only say that, as a result of such changes in the legal system, an acknowledgement made by father as his unilateral declaration of intent after the date of enforcement of the New Nationality Law is no longer a cause of the acquisition or loss of regional registry. Therefore, there is no reason to exclude a child acknowledged by a Korean father from a Japanese family register.

[5] The notification of the Director of the Civil Affairs Bureau of the Ministry of Justice as of December 6, 1950, titled "Acknowledgment of a Child of a Native Japanese Person and a Korean or Taiwanese Person" provided as follows: "Conventionally, the family registration in the case described in the title of this notification has been handled in Japan in accordance with the purport of the provisions of Article 5, sub-para. 3 and Article 23 of the Old Nationality Law and Articles 22 and 23 of the Family Registration Law: a child who was born between a native Japanese father and a mother having a permanent domicile in Korea or Taiwan and was acknowledged by the father shall be included in the family register in Japan; whereas a child who was born between a father having a permanent domicile in Korea or Taiwan and a native Japanese mother and was acknowledged by the father shall be excluded from a Japanese family register. In the future, however, this handling of the family register shall be altered, and such acknowledgment shall not bring about any change in the child's family register." In other words, this notification, based on the same view as that discussed above, instructed that the treatment of regional registry for a child who was born between native Japanese person and a Korean or Taiwanese person and was acknowledged by the father should be altered in line with the purport of the newly implemented Nationality Law. Assuming that, there is no reason to apply the notification of the Director of the Civil Affairs Bureau only to acknowledgments made on or after December 6, 1950 (the date of the notification), and as mentioned above, acknowledgements made on or after July 1, 1950, but before December 6, 1950, should also be handled in accordance with the Nationality Law. By doing so, the constitutional guarantee of equality before law can be fulfilled.

[5] Structural translation

The notification of the Director-General of the Civil Affairs Bureau of the Attorney General's Office dated 6 December 1950, "Regarding father-child acknowledgements between Chosen or Taiwan and the Interior", determines [stipulates] that: "With regard to hitherto treatment of family registers in the Interior concerning the matter of the heading, it has conformed to [followed] the spirit of the respective provisions of Article 5 paragraph 3 of the Old Nationality Law, Article 22 of the same law, and Article 22 of the Family Register Law and Article 23 of the same law, and it has been held that, in the event an Interiorite man had acknowledged a child born to a woman who possesses a principle register in Chosen [or] Taiwan, as for the child, [a local registrar in the Interior] would create a new family register [for it] in the Interior, and in the event a man who possesses a principle register in Chosen [or] Taiwan had acknowledged a child born to an Interiorite woman, as for the child, [a local registrar in the Interior] would remove [it] from the family register of the Interior. As for the right [= the above = such hitherto] family register treatment, [the Ministry of Justice] has decided that hereafter [it] will change this [treatment], and that due to the acknowledgements of each aforesaid event [such acknowledgements] will not engender a change in the family register of the child.", . . . .

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.

  以上のとおり,【要旨】国籍法施行後に朝鮮人父から認知された子は,内地の戸籍から除籍される理由がないから,平和条約の発効によっても日本国籍を失うことはないと解するのが相当である。そうすると,被上告人は,平和条約の発効後も日本国籍を有するのであり,これと結論を同じくする原審の判断は,是認することができる。所論引用の判例(最高裁昭和36年(オ)第1390号同38年4月5日第二小法廷判決・裁判集民事65号437頁)は,昭和27年2月12日に台湾人男と自己の意思に基づき婚姻した内地人女の平和条約発効後における日本国籍喪失に関するもので,本件とは事案を異にする。論旨は採用することができない。

  4  よって,裁判官全員一致の意見で,主文のとおり判決する。 

裁判長裁判官
          甲斐中辰夫
  裁判官  横尾  和子
  裁判官  泉    德治
  裁判官  島田  仁郎
  裁判官  才口千  晴

For these reasons, it is reasonable to consider that there is no reason to exclude a child who was acknowledged by a Korean father after the enforcement of the New Nationality Law from a Japanese family register and therefore the child will not lose Japanese nationality despite the effectuation of the Peace Treaty. Assuming that, the jokoku appellee should be deemed to continues to have Japanese nationality even after the effectuation of the Peace Treaty, and the judgment of the second instance that goes along with this reasoning can be accepted. The judicial precedent cited by the jokoku appellant (1961(O)No. 1390, judgment of the Second Petty Bench of the Supreme Court April 5, 1963, Saibanshu Minji No. 65, at 437) relates to the case in which a native Japanese woman who married of her own will to a Taiwanese man on February 12, 1952, lost Japanese nationality after the effectuation of the Peace Treaty, which is of a different type from this case. The jokoku appellant's argument cannot be accepted.

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

Presiding Judge Justice
           KAINAKA Tatsuo
  Justice  YOKOO Kazuko
  Justice  IZUMI Tokuji
  Justice  SHIMADA Niro
  Justice  SAIGUCHI Chiharu

(This translation is provisional and subject to revision.)

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