Ko v. State, 1993-1997

Child acknowledged after birth acquires nationality through birth

By William Wetherall

First posted 1 July 2009
Last updated 21 June 2014


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


Overview of Ko v. State, 1993-1997

On 17 October 1997, the Second Petit Bench of the Supreme Court of Japan handed down a very interesting judgment in a case that required the court to determine whether a Japanese man's acknowledgement of a child after its birth satisfied a provision in the Nationality Law which stipulated at time of birth.

The court ruled that, under the peculiar circumstances of the case, in which it was legally impossible for the father to acknowledge the child before its birth, it was reasonable to conclude that the father had complied with the spirit of the law if not necessarily with its letter. Therefore, the child was Japanese.

Ko as child of Otsu and Tei

I am calling this case "Ko v. State" because the received public copy of the judgment calls the child "Kō" (甲) or "A" in conformity with the convention of referring to parties as 甲乙丙丁 (kō, otsu, hei, tei) et cetera, meaning A, B, C, D and so forth. Ko's mother is called "Otsu" (乙) or "B", the mother's husband at the time of Ko's birth is called "Hei" (丙) or "C", and Ko's father is called "Tei" (丁) or "D".

The received English translation refers to the mother as "A" -- the child as "P" -- the mother's husband as "B" -- and the child's father as "C" (but once as "Y").

Chuo University law professor Okuda Yasuhiro, in his transcription of the Supreme Court ruling in Ko v. State, more logically calls the mother "A" -- the child plaintiff/appellant/appellee "X" -- the woman's husband "B" -- and the child's father "C" (Okuda 2010, pages 181-184).

Since the Supreme Court was hearing a case which the State had appealed to the court after receiving an unfavorable ruling from the Tokyo High Court, the judgment also refers to Ko (甲 Kō) as the 被上告人 (hi-jōkokunin) or "[jokoku] appellee" whereas the State (国 Kuni) is called the 上告人 (jōkokunin) or "[jokoku] appellant.

Ko's mother is described as a 韓国人 (Kankokujin), meaning a national of the Republic of Korea. The mother, while called "Otsu" in the summary of the judgement, is called ★仙和 or "★ Senwa" in the main text. "Senwa" is the Sino-Japanese reading of the name. The Sino-Korean reading would be Sŏnhwa (McCune-Reischauer). Another received text says ※(外字)仙和 meaning "※ (character outside [standard set of characters]) Senwa".

The web-published version names Otsu's Japanese husband (篠瀬幸夫 Shinose Yukio / Sachio) and Ko's Japanese father (吉野博昭 Yoshino Hiroaki). So would appear that it was not trying to hide the identities of the adults in Ko's life -- unless these names were fictitious.

The received English translation of the main text of the judgment, however, suppresses all these names. Senwa becomes "A" (should be "B"), Shinose becomes "B" (should be "C"), and Yoshino becomes "C" (should be "D") -- but curiously, Yoshino is once called "Y" -- the only vestige of the names in the Japanese text.

Note that the current (2014) version of the ruling posted by the Japanese government suppresses all personal names except those of the prosecutors representing the State and the justices who rendered the judgment.

The complications of acknowledgement

Ko was born to Otsu, an ROK national Korean woman married to Hei, a Japanese man, but Ko's father was Tei, another Japanese man. Ko's father was not legally allowed to recognize Ko as his because Ko's mother was married to Hei. However, Otsu and Hei divorced two months after Ko's birth, and three weeks later Ko's parents initiated family court proceedings to confirm that there was no parent-child relationship between Ko and Otsu's ex-husband Hei. Only then could Ko's father, Tei, establish a parental relationship through acknowledgement.

A few months later, the family court confirmed that there was no parent-child relationship between Ko and Hei. The judgement came into effect a few days later, and within 2 weeks Tei filed a notification of acknowledgment, apparently thinking that Ko would be entered in his family register as his child, and that Ko's status in the register would show that Ko was Japanese from birth.

In other words, it appears that Tei expected his acknowledgement of Ko to be effective retroactively -- pursuant to Article 2, Item 1 of the Nationality Law, which provides that a child shall be a Japanese national through birth "When, at the time of its birth, the father or the mother is a Japanese national".

Parent-child relationship

That Ko's mother was an alien somewhat complicated the problem of acquiring Japanese nationality through birth. Had Otsu not been married, Ko's Japanese father could have had Ko entered in his family register at the time of Ko's birth, through acknowledgement either before or at the time of birth. Because Otsu was married, though, Ko's father could not legally acknowledge his paternity until (1) after Ko was born, and (2) after a family court confirmed that there was no relationship between Ko and Otsu's ex-husband Hei.

Ordinarily, because Otsu's husband was Japanese, she and Tei could have registered Ko in Tei's register as his in-wedlock child, in which case Ko would have been Japanese from the time of birth. Apparently she didn't wish to -- or couldn't, for any number of reason -- hide Ko's paternity from Hei. Most likely she and Hei were already estranged, and Tei had already agreed to acknowledge Ko as his child.

Tei, however, was not allowed to acknowledge that he was the father of a child of a woman married to another man. Even if Otsu and Hei had divorced before Ko's birth, had Ko been born within 300 days of the divorce, registrars would consider Ko to have been Hei's child.

Child's status until Supreme Court decision

If Hei had acknowledged Ko as his child, Ko would have been a Japanese national from birth. But since he didn't, Registrars had no recourse but to treat Ko as an alien born in Japan. Under the circumstances, his alien nationality hinged on his mother's home country law -- which meant the Republic of Korea. But ROK's Nationality law at the time was still patrilineal in the case of a married ROK national woman.

What, then, was Ko's status until the Supreme Court ruled that Ko qualified for Japanese nationality retroactive to birth? The ruling does touch upon such matters -- for the simple reason that they are irrelevant. Ko's case was a "request for confirmation of nationality" -- meaning Japanese nationality -- and the only issue was whether Ko qualified for birthright Japanese nationality pursuant to his father's acknowledgement -- a tricky issue, since Tei had not legally been Ko's father at the time Ko was born.

However, Ko's status is worth speculation.

Ko obviously did not have Japanese nationality in the eyes of the Japanese government at the time Ko's parents resorted to litigation to confirm Ko's possession of birthright Japanese nationality. And it would appear that Ko didn't qualify for ROK nationality through Otsu, since ROK's Nationality Law was not yet matrilineal.

ROK's nationality law did not become ambilineal like Japan's until 1998. The ROK law in effect at the time was patrilineal in essentially the same manner that Japan's 1950 law had been until it became ambilineal from 1985.

ROK's Nationality Law, like Japan's law before 1985, had a provision for matrilineal birthright nationality should Otsu's alien (i.e., non-ROK national) husband Hei have been stateless, But Hei was Japanese. Had Otsu and Hei divorced before Ko was born, Otsu might have been able to claim ROK nationality for Ko matrilineally, by representing Ko as having been born out-of-wedlock.

I would guess, then, that Otsu had no choice but to notify Ko's birth as that of an alien born in Japan, and to complete alien registration procedures. And because she was unable to acquire a nationality for Ko, Ko became legally stateless.

Note that Ko did not need to have a legal status in order to be a litigant. A child or an adult who appears to be totally unregistered can be represented in a Japanese court.

Neither my daughter nor my son were registered when they became plaintiffs in separate nationality confirmation cases in 1978 and 1982. They were not registered -- i.e., they did not legally exist in Japan -- until 1983, after I had been found guilty by a regional summary court on two counts of violating the Alien Registration Law. It was my contention that they should not be treated as aliens until a final court of appeal had rejected their claim that they were Japanese through birth.

I cannot help but think that Ko's parents felt the same way -- but perhaps they were less inclined than I was to resort to civil disobediance.

On the surface

Again, the Supreme Court decision does not touch on such particulars -- but apparently, when Ko's father filed a notification of acknowledgement, the municipal registrar, guided by the Ministry of Justice, refused to apply the birthright provision for Japanese nationality in Article 2, Item 1 of the Nationality Law, which states that a child shall be a Japanese national through birth "When, at the time of its birth, the father or the mother is a Japanese national".

The issue here is whether a parent-child relationship existed between Ko and Tei at the time of Ko's birth. On the surface, it didn't. On the surface, what existed at the time of Ko's birth was a presumed parent-child relationship between Ko and Ko's mother's husband Hei. The presumed relationship between Ko and Hei was not found to have never existed until a few months after Ko's birth. And Ko's father Tei was unable to acknowledge his paternity until after the presumed relationship was found not to exist.

The Ministry of Justice, guided by the timing of the flow of these legal events, regarded the legal relationship between Ko and Tei to have started from the day Tei's acknowledgement of Ko was accepted. In other words, according to the paper trail -- the trail of official documents -- Tei was not legally Ko's father at the time of Ko's birth. Ergo, Article 2, Item 1 of the Nationality Law did not apply.

Moreover, Article 3 of the Nationality Law -- as introduced from 1985 -- had no provision for retroactive acknowledgment. And until Article 3 was revised from 2009, paternal or maternal acknowledgement by a Japanese parent of an alien child would qualify the child for Japanese nationality only if the acknowledging parents were married -- i.e., only if the child was legitimated -- and the child would acquire Japanese nationality from the day its parents filed a notification of acquisition based on both the acknowledgement and the legitimation.

Two out of three courts begged to differ

On the surface, the State's position sounded reasonable. The Tokyo District Court bought the Ministry of Justice's argument. The Tokyo High Court, however, ruled in favor of Ko, and the State appealed to the Supreme Court. And the Supreme Court also ruled in favor of Ko.

The Supreme Court found that registrars, guided by the Ministry of Justice, did not take into account the manner in which the law itself prevented Ko's father from acknowledging his paternity in a timely manner -- i.e., before or at the time of Ko's birth. The government also failed to consider that Tei, when finally he was able to legally acknowledge Ko, did so without delay. Ergo, in the eyes of the court, Ko should be treated as though Tei had acknowledged his child at the time of its birth.

What mattered most to the court, then, was the father's intent to acknowledge the child -- before or at the time of its birth -- and the actions he took when possible to do so.

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Origins of case

Ko v. State originated in a dispute over the interpretation of the phrase 出生の時 (shussei no toki) or "at time of birth" in Article 2 of the 1950 Nationality Law. The Article was revised from 1985, but the critical "at time of birth" phrasing remained unchanged from the original 1899 Nationality Law.

Article 2

Article 2 of the Nationality Law as revised from 1985 stated that a child qualified for acquisition of Japanese nationality through birth, if (1) one of the child's parents was Japanese at the time of its birth, (2) the child's father, if deceased prior to its birth, was Japanese at the time of his death, or (3) the child was born in Japan to parents both of whom are either unknown or stateless.

In conjunction with family law provisions in the Civil Code, Article 2 implies that any child of a Japanese woman will qualify for acquisition of Japanese nationality through birth, since family law customarily regards a woman's delivery of a child as evidence of her maternal acknowledgement. Whereas the Nationality Law had been primarily patrilineal until 1984, since 1985 it has been primarily ambilineal.

Japanese family law also regards any child born to a woman in wedlock to be her husband's -- except when the child is born within 300 days of the woman's divorce from another man, in which case the former husband will be considered the father. These conventions have become highly controversial in an age when DNA and other tests can easily determine, or at least rule out, paternity, but this was not the central issue in Ko v. State.

Article 3

Article 3, as newly introduced in the Nationality Law from 1985, stipulated that a child could acquire Japanese nationality through acknowledgement by a Japanese parent after its birth, so long as its parents had married in order to legitimate the child. Acknowledgement alone was insufficient. Moreover, notifications for acquisition had to be filed before the child turned 20 years of age. Typically, if not always, the mother of such a child was an alien and the father was a Japanese.

The plaintiff in Ko v. State, however, was not seeking nationality through Article 3 -- which, in any event, would not have applied, since Ko's father and mother were not married. Even had they eventually married, the object of the litigation was to establish Ko's acquisition of Japanese nationality through birth (Article 2) from the time of birth -- not through recognition and legitimation (Article 3), which did not have retroactive effects.

A 2008 Supreme Court ruled the legitimacy condition unconstitutional. The Diet revised Article 3 by deleting the legitimacy condition, and the revised article, which now requires only acknowledgement, and transitional measures that provide for retroactive application of the revision, came into force from 2009. See both Filipinos v. State, 2003-2008 and 2009 Nationality Law revisions for further details.

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Ruling in case

The Supreme Court ruled that Ko's father could not have effected an acceptable acknowledgement of Ko until a few months after Ko's birth -- but because he had done so at the earliest legal opportunity, the acknowledgement should have the same effect as it would have if it had been acceptable when the father attempted to acknowledge Ko before birth.

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Chronology of case

Ko v. State actually began in a family court, but the family court addressed only the question of whether or not Ko's father could have been the man to whom her mother was married when Ko was born. The family court recognized that the mother's by then former husband was not Ko's father.

The series of rulings which ended with the Supreme Court's decision in 1997 are as follows.

First instance court (1993-1994)

Court:     Tokyo District Court
Case:      Heisei 5 (Gyo-U) 349
Litigants: Ko v. State
Judgment:  28 September 1994
Ruling:    Ko is not Japanese

Second instance court (1994-1995)

Court:     Tokyo High Court
Case:      Heisei 6 (Gyo-Ko) 195
Litigants: Ko v. State (Ko appeals)
Judgment:  29 November 1995
Ruling:    Ko is Japanese from birth

Final court of appeal (1996-1997)

Court:     Supreme Court, Second Petit Bench
Case:      Heisei 8 (Gyo-Tsu) 60
Litigants: State v Ko (State appeals)
Judgment:  17 October 1997
Ruling:    Ko is Japanese from birth
Chronology of Ko v. State, 1993-1997

15 September 1992

The plaintiff, Ko, was born to an ROK Korean mother, Otsu, who was then married to a Japanese man, Hei. Ko's father, though, was another Japanese man, Tei.

Tei attempted to file a notification of acknowledgement before Ko's birth. However, his acknowledgement was not recognized because, under Japanese law, a child conceived by a married woman is presumed to her husband's.

4 November 1992

Ko's mother Otsu and her husband Hei file a notification of divorce, which is accepted and immediately effective.

18 December 1992

A family court convenes a conciliation proceeding to establish that Hei had not been Ko's father.

27 April 1993

The family court rules that Ko's father had not been Hei.

2 June 1993

The family court's ruling comes into force.

14 June 1993

Ko's father, Tei, files a notification of acknowledgement of paternity. The notification is accepted, but the acknowledgement is not deemed to have satisfied the stipulations of Article 2 of the Nationality Law, which implies acknowledgement by a Japanese parent before or by the time of a child's birth as condition for being Japanese from birth.

Since Tei had not married Otsu, his notification of acknowledgement of Ko did not fully satisfy Article 3, either. At the time, Article 3 provided for acknowledgement after birth in conjunction with legitimation. Recognition significantly after a child's birth was a necessary but insufficient requisite for a minor alien child to become Japanese other than through naturalization.

Hence Ko remained an alien, and as such could not be registered in Tei's family register.

1993

Ko files a nationality confirmation lawsuit in the Tokyo District Court. Since the Nationality Law is a national law, such lawsuits are filed against the State. And since the Ministry of Justice is the competent ministry in so far as the Nationality Law is concerned, the State is represented in court by Minister of Justice prosecutors.

28 September 1994

The Tokyo District Court rules in Ko's favor. Since Ko's father could not have acknowledged Ko before or at time of birth, but acknowledged Ko as soon as it was legally possible, the post-birth acknowledgement satisfies the intent of Article 2, and therefore Ko is Japanese.

1994

The State appeals the Tokyo District Court's ruling to the Tokyo High Court.

29 November 1995

The Tokyo High Court overturns the Tokyo District Court's decision in the State's favor. Ko is not Japanese.

1996

Ko appeals the Tokyo High Court's ruling to the supreme court.

17 October 1997

The Second Petit Bench of the Supreme Court overturns the Tokyo High Court's decision in Ko's favor. Ko is Japanese through birth.

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Quality of opinions

The judgment in this case is a wonderful example of the capacity of the Supreme Court to favor the spirit of a law over its literal interpretation. The judgment came down to the quality of what I would call the acknowledging father's MO.

The father's motives were judged to be have satisfied the intent of the law as he had attempted to comply with its requirement for paternal acknowledgement at the earliest opportunity. In other words, the timeliness of his acknowledgement was measured -- not by the date of his acknowledgement in relation to his child's birth -- but by his sincerity in attempting to acknowledge his child at the earliest legal opportunity.

Supplementary opinion

The supplementary opinion, too, closely argues that there is more to law than meets the eye takes a phrase like "at time of birth" too literally. According to the opinion, Reply No. 7608 of the Second Division of the Civil Affairs Bureau of the Ministry of Justice, made by the bureau's director on 18 December 1982 (民二第七六〇八号法務省民事局長回答), presumably in response to a query from a local municipal registrar, held that a late acknowledgement by the Japaneses father of a child born to an ROK national could acquire Japanese nationality under Item 1 of Article 2 of the Nationality Law.

Civil Affairs Bureau Director-General Notice No. 7608 of 18 December 1982

In 1982, the Second Division of the Civil Affairs Bureau, which covers nationality and registration, replied to a query from a municipal registrar as to how to deal with a certain case of an ROK Korean woman who had been married to an ROK Korean man but divorced him during her pregnancy. The Japanese father filed a notification of acknowledgement about 3 months after the divorce but before the child was born, and the notification was provisionally accepted because it was not yet possible to presume that the child was the legitimate child of the woman's ex-husband. As the child was born within 300 days of the divorce, however, the ex-husband became its presumptive father, and the registrar, guided by the Ministry of Justice, held that the acknowledgement would not have legal effect until a family court ruled that there was no parent-child relationship between the ex-husband and the child. When the parents obtained such a ruling, the father's acknowledgment had effect from the time of the child's birth, hence it qualified for birthright Japanese nationality and was duly entered in his father's family register.

The supplementary opinion cited this as an example of how registrars, guided by the Ministry of Justice, treat essentially the same case differently -- which, it held, was not desirable. Ko deserved to be treated in the same way, in that as an effect of the family court ruling that Ko's mother's ex-husband had not been Ko's father, Ko should be regarded as having been born out of wedlock the child of the Japanese man who had recognized Ko, effective at the time of birth, hence Ko also qualified for birthright Japanese nationality. In other words, it was not simply a matter of literally "at time of birth" but a question of intent and effort to effect an acknowledgement of a fetus before birth.

Civil Affairs Bureau Director-General Notice No. 180 of 30 January 1998

On 30 January 1998, three months or so after the Supreme Court's Decision in Ko v. State, the Civil Affairs Bureau director, issued Notice No. 180 representing the bureau's Fifth Division (平成10年1月30日民五第180号民事局長通達), "Concerning children who are subject to presumption of being the wedlock issue of the husband [whether alien or Japanese] of an alien mother, and concerning the possession or not of Japan's [Japanese] nationality in cases where there has been a notification of acknowledgement from a Japanese man" (外国人母の夫の嫡出推定を受ける子について、日本人男から認知の届出があった場合の日本国籍の有無について). The object of this notice was to provide guidance to local registrars who encounter such cases, in compliance with the 17 October 1997 Supreme Court ruling in Ko v. State. (Okuda 2010, pages 187-189)

Civil Affairs Bureau Director-General Notice No. 2420 of 11 November 1999

On 11 November 1999 (Heisei 11-11-11), the heads of the Second Division and Fifth Division of the Civil Affairs Bureau issued Notice No. 2420 (平成11年11月11日民二・民五第2420号民事局第二課長、第五課長通知) "Concerning the treatment et cetera of extra-liaisonal [i.e., international private law related] fetal acknowledgements" (渉外的胎児認知届の取扱い等について). This notice, referring to the 1998 notice, and to the 1997 Supreme Court ruling, gives even more general guidance regarding embryo recognition -- referring not only to the above-mentioned 18 December 1982 Reply (No. 7608), but also to 20 March 1918 Reply No. 364 (大正7年3月20日付け民第364号法務局長回答), which similarly held that a child born to an alien woman, if recognized when a fetus, after the woman had divorced, would be treated as having acquired Japanese nationality, without regard to the time of the notification. (Okuda 2010, pages 190-192)

Civil Affairs Bureau Director-General Notice No. 2030 of 18 July 2003

On 18 July 2003 (Heisei 15-07-18) the Civil Affairs Bureau issued a notice concerning a Supreme Court judgement in the nationality confirmation case of a child born to an ROK Korean woman who had remarried a Japanese man after divorcing another Japanese man. The woman had separated from her husband, and had a divorce notification with his seal on it. but when she tried to contact him to confirm his final wish, she was unable to find him. After that, she became acquainted with another Japanese man, and she gave birth to a child -- the plaintiff in the nationality confirmation case -- 1 day after finally submitting the divorce notification. Some 8 months later the couple petitioned a family court for mediation in determining that a parent-child relationship did not exist between their child and the woman's former husband. And 4 days after the family court ruled that such a relationship didn't exist, the child's father acknowledged his paternity. The Osaka District Court accepted the child's claim (2000), but the Osaka High Court nullified the district court's ruling and dismissed the claim (2000). Then on 12 June 2003, the First Petit Bench of the Supreme Court dismissed the high court's decision and accepted the child's claim to be a Japanese national. In this case, too, the Supreme Court totally rejected the Ministry of Justice's position that, while it is desire able for a Japanese father to recognize a child he sires with an alien woman, under Article 3, the child should not qualify for Japanese nationality unless the couple legitimate the child through marriage. This notice somewhat revised Notice 180 of 1998. (Okuda 2010, pages 194-195)

Cited works

The texts of Notice No. 180 of 1998 and Notice No. 2420 are posted, with many other government notices, on the extremely informative website of Chuo University Law School professor Yasuhiro Okuda (奥田安弘 Okuda Yasuhiro). They, and the other notices cited here, are also presented and discussed in the following collection of court opinions and other materials related to nationality and family law, compiled by Okuda.

Okuda 2010

奥田安弘
国籍法・国際家族法の裁判意見書集
日本比較法研究所資料叢書 9
東京:中央大学出版部、2010年3月1日 初版第1刷発行
xvi, 383ページ、単行本

Okuda Yasuhiro
Kokusekihō·kokusai kazokuhō no saiban ikensho shū
[Collection of court opinions on nationality law and family law]
Nihon hikaku-hō kenkyū shiryō sōsho 9
[Japan comparative law studies materials library 9]
Tokyo: Chūō Daigaku Shuppanbu
1 March 2010, 1st edition, 1st printing
xvi, 383 pages, hardcover

"at the time of its birth"

The judgment in Ko v. State is a good example of how at times courts -- taking both human and legal factors into consideration -- have stretched the meanings of controlling phrases in Japanese laws beyond the limits that legal bureaucrats have conventionally imposed on the phrases -- in this case the "at the time of its birth" criterion in the Nationality Law.

As the Supreme Court ruling shows, the law does not define the phrase "at the time of its birth" but leaves its interpretation to registrars and the Ministry of Justice. The writers of the supplementary opinion wonder whether it is a good idea to leave such interpretation to whim, but conclude that this is something for the legislature to ponder.

In the meantime, registrars -- and the legal bureaucrats who guide them -- need to take the circumstances of each case into account, and to consider the intent of those responsible for filing notifications in a timely manner. Parents should not be held responsibility for delays caused by the law itself and/or its administration -- such as those which prevented the father in Ko v. State from recognizing the child when he first attempted attempted.

Above all, there needs to be more consistency in how registrars treat people in similar circumstances. Apart from its importance as an argument for considering the spirit as well as the letter of the law, the most important contribution of the 1997 Ko v. State ruling -- especially the supplementary opinion -- is to point out and condemn the arbitrariness that characterizes some government efforts to enforce Japan's laws.

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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. Here are some examples.

Republic of Korea

Ko's mother Otsu is described as a 韓国人 (Kankokujin), which means she was a national of the Republic of Korea -- not merely a "Korean".

While people writing in English may be inclined to conflate 韓国人 (Kankokujin) and 朝鮮人 (Chōsenjin), the two statuses are different, and courts do not speak of individuals in the manner of 韓国・朝鮮人 (Kankoku・Chōsenjin) or コリアン (Korian). There are, in fact, more than two legal classifications in Japanese that, in English, are typically and, with considerable loss of meaning, reduced to simply "Korean".

Family Register

Contrary to the received translation, a "koseki" (戸籍) is a "family (household) register" -- not a "Civil Register Status". Family registers are governed by the "Kosekihō" (戸籍法) or "Family Register Law" -- not the "Law on Civil Status".

"Civil status" -- such as it legally exists in Japan -- is defined by at least two kinds of registers, which vary in type according to whether one is a Japanese national or an alien, and according to the period under consideration. The basic elements of individual status include name, date of birth (age), sex, nationality, residential status (where one legally resides), and possibly family relationship such as parent, child, or spouse.

See Civil status and registers: Honseki, residence, and polity affiliation in Japan for a table showing the relationships between various kinds of civil registers in Japan and legal status.


Quality of received translation

It is nice to see important Japanese court rulings made available in English. It would be nicer, though, if the English versions reflected the precision of the Japanese texts. While most translations are done by people familiar with Japanese laws, the translators are not necessarily careful about mapping essential phrases accurately. General meanings usually survive, but the finer nuances of the original text -- its phrasing and usage, its logic -- tend to be lost in freer approaches.

My "structural translations" here are not polished, but they could easily be polished with little loss of the results of my efforts to map key expressions -- key phrases, key words -- identically throughout, cutting as close to the linguistic bone of Japanese legal express as possible. Here is an example.

Received Japanese Structural translation Received translation

国籍は、国家の構成員たる資格であるが、何人が自国の国籍を有する国民であるかを決定することは、国の固有の権限に属し、日本国憲法一〇条は、「日本国民たる要件は、法律でこれを定める。」と規定している。すなわち、国籍法は、国家の構成員の範囲を定める国家存立の基本に関する公法であり、その解釈に当たっては、拡張解釈や類推解釈を極力避けることが要請される。しかし、一方において、国籍法は、親子関係等私法の規定によって決定される法律関係を前提とすることが多く、その解釈に当たっても、これらの先決的な問題の影響を受ける場合があることも、否定することができない。

Nationality is the qualification of being a constituent member of a State, and the determination of who is a national, who possesses the nationality of a [given] country, belongs to the inherent authority of the country; Article 10 of Japan's Constitution provides that "The conditions necessary for being a Japanese national shall be determined by law." In other words, the Nationality Law is a public law that concerns the foundation of the existence of the State, which determines the scope of the constituent members of the State (the scope of the State's constituent membership); regarding its interpretation, avoiding extensive interpretations and analogical interpretations is required. However, on the other hand, the Nationality Law often presupposes legal relationships that are determined in accordance with provisions of parent-child relationship and other private (personal status) laws, and regarding their interpretation as well, that there are instances in which [the Nationality Law] is subject to the effects of these pre-determinant issues cannot be denied.

Nationality is a qualification as a component of a state. The determination of who should be a national of the state belongs to the exclusive power of the state. Article 10 of the Constitution of Japan provides that 'requirements as to the Japanese national are determined by law'. Thus, the Law on Nationality is a public law which concerns the basis of the existence of the state determining the scope of the components of the state, and thus, it is necessary to avoid extensive or analogical interpretation as much as possible in interpreting this Law. However, on the other hand, the Law on Nationality often presupposes legal relations which are determined by private law such as the law on parents and children. In its interpretation, the effect of such preliminary questions cannot be denied.

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Sources, presentation, and commentary


Sources


Received Japanese text of ruling

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

Received English translation

The English version was extracted from an html file retrieved by a query in the English section of the same 裁判所 Courts in Japan website. A note at the bottom states that the English version as "Translated by Sir Ernest Satow Chair of Japanese Law, University of London" -- which would seem to be Hiroshi Oda (小田博 Oda Hiroshi), who has has been the Sir Ernest Satow Professor of Japanese Law at the University of London, University College, since 1990. Oda is the author of Japanese Law, first published by Butterworths in 1993. Oxford University Press brought out a revised 2nd edition in 1999 and further revised 3rd edition in 2009.

Structural English translation

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

Formatting, commentary, and markup

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

Underscoring

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

Parentheses

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

Square and angle brackets

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

Structural translations and commentary

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

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

Color highlighting

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

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


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

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

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

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

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1997 Supreme Court judgment in Ko v. State
Japanese text, English version, and commentary
Tokyo District Court

第一審裁判所名:東京地方裁判所

第一審事件番号:平成5(行ウ)349

第一審裁判年月日:平成6年9月28日

第一審判決:判決

Court of first instance: Tokyo District Court

First instance case number: Heisei 5 [1993] (Gyo-U) 349

First instance decision: 28 September 1994 [Heisei 06-09-28]

First instance ruling: Ruling

Tokyo High Court

The Tokyo High Court was the second instance court. Here it is called the "original instance court" from the viewpoint of the Supreme Court, since the case the Supreme Court was asked to review originated in the Tokyo High Court.

[最高裁判所の判決はその立場から「第二審」を「原審」と言う。]

控訴審裁判所名:東京高等裁判所

控訴事件番号:平成6(行コ)195


控訴裁判年月日:平成7年11月29日


控訴判決:判決

[The ruling of the Supreme Court refers to the "second instance" as the "original instance" from its standpoint.]

Appeal [second] instance: Tokyo High Court

Appeal [second] instance case number:
Heisei 6 [1994] (Gyo-Ko) 195

Date of appeal [second] instance decision:
29 November 1995 [Heisei 07-11-29]

Appeal [second] instance ruling: Ruling

Supreme Court

事件番号:平成8(行ツ)60

事件名:国籍確認請求事件

裁判年月日:平成9年10月17日

法廷名:最高裁判所第二小法廷

裁判種別:判決

結果:棄却 (補足意見あり)

判例集巻・号・頁:第51巻9号3925頁

Case number: Heisei 8 [1996] (Gyo-Tsu) 60

Case name: Nationality confirmation request case

Date of judgment: 17 October 1997 [Heisei 09-10-17]

Court name: Supreme Court, Second Petit Bench

Type of judgment: Ruling

Results: Dismissed (there is a supplementary opinion)

Hanreishū [Court Reports] Volume, Number, Page:
Volume 51, Number 9, Page 3925

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判示事項 Findings
Received Japanese text Received English translation

一 外国人である母の非嫡出子が日本人である父により胎児認知されていなくても国籍法二条一号により日本国籍を取得する場合

二 韓国人である母の非嫡出子であって日本人である父により出生後に認知された子につき国籍法二条一号による日本国籍の取得が認められた事例

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

Structural translation

1. Instance in which a non-legal-wife-issue (out-of-wedlock) child of mother who is an alien, even though not fetally acknowledged by a father who is Japanese, acquires Japan (Japanese) nationality in accordance with Article 2, Item 1 of the Nationality Law

2. Example in which -- regarding a child who was a non-legal-spouse-issue (out-of-wedlock) child of a Republic-of-Korea-an (ROK national) mother, and who was acknowledged after its birth by its Japan-ese (Japanese national) father -- acquisition of Japan (Japanese) nationality in accordance with Article 1, Item 1 of the Nationality Law was recognized

Commentary

The structural (phrasal and lexical) imprecision of the freer received translation -- its preference for abbreviated phrasing, less objective wording, and non-Japanese metaphors -- is typical of such translations.

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

一 外国人である母の非嫡出子が日本人である父により胎児認知されていなくても、右非嫡出子が戸籍の記載上母の夫の嫡出子と推定されるため日本人である父による胎児認知の届出が受理されない場合であって、右推定がされなければ父により胎児認知がされたであろうと認めるべき特段の事情があるときは、右胎児認知がされた場合に準じて、国籍法二条一号の適用を認め、子は生来的に日本国籍を取得すると解するのが相当であり、右特段の事情があるというためには、母の夫と子との間の親子関係の不存在を確定するための法的手続が子の出生後遅滞なく執られた上、右不存在が確定されて認知の届出を適法にすることができるようになった後速やかに認知の届出がされることを要する。

二 韓国人である母Aの子が出生した当時、Aが日本人であるBと婚姻関係にあったため、日本人である父Cが適法にを胎児認知することができなかったが、の出生の約三箇月後にBととの親子関係不存在確認の調停が申し立てられ、親子関係不存在確認の審判が確定した一二日後にCがを認知したなど判示の事実関係の下においては、は、国籍法二条一号により日本国籍を取得する。

1. An illegitimate child of a foreign mother acquires Japanese nationality by birth even when the child has not been recognised as an embryo → fetally recognized (acknowledged) ← , if, in accordance with the entry in the register of civil status → entries in [her husband's] family register ←, the legitimacy of the child as the child of the mother's husband → Japanese husband ← is presumed by statute [pursuant to the Civil Code] and for this reason, the application for recognition as an embryo → the notification for fetal recognition (acknowledgement) ← had not been accepted, and if there were special circumstances where, had there not been such a presumption, the child would have been recognised as an embryo, by applying Article 2, subpara. 1 of the Law on Nationality with modification, it should be construed that the child acquires Japanese nationality by birth. In order to acknowledge the existence of special circumstances, the procedure to establish the absence of the relationship between the mother's husband and the child was initiated without delay after the birth of the child, and once the absence of such a relationship was established and the application for recognition became possible, the application was made promptly.

2. When a Korean mother A gave birth to child P, A was married to a Japanese, B and therefore, the Japanese father of P, C was unable to lawfully recognise P as an embryo, but after 3 months of the birth of P, a conciliation proceeding for the recognition of the absence of a parental relationship between B and P was initiated and after 12 days of the adjudication recognising the absence of this relationship, C recognised P, under such circumstances, P lawfully acquires Japanese nationality by virtue of Article 2, subpara. 1 of the Law on Nationality.

Structural translation

1. When there are special circumstances [1] in which it would be recognized that -- even though an out-of-wedlock child [2] of an alien mother has not been fetally acknowledged by its Japanese father, it was an instance in which a notification of fetal acknowledgement by the [child's] Japanese father was not accepted [by a registrar] on account of the right [above = 2] out-of-wedlock child having been presumed [3] to be the in-wedlock child of the mother's [former] husband on the basis of entries in [his] family register -- if the right [above = 3] presumption had not been made the [child] would probably have been fetally acknowledged [4], [this court] -- in accordance with the instance in which the right [above] [4] fetal acknowledgement was made -- recognizes the application of Article 2, Item 1 of the Nationality Law; understanding that the child acquires Japanese nationality congenitally (from time of birth) is reasonable (appropriate); and on account of there being the right [above = 1] special circumstances, after legal procedures for the purpose of determining the non-existence [5] of a parent-child relationship between the mother's [former] husband and the child have been taken without delay, it is necessary that a notification of recognition be promptly made after the right [above =5] non-existence has been determined and it becomes possible to regard a notification of acknowledgement as legal.

Right   Legal briefs and judgements are written vertically from the right side of a page, hence "right" and "left" point to previous and subsequent matters that would be "above" or "below" if writing horizontally from top to bottom. The above paragraph is very logically structured and would be sufficiently clear without such specific antecedent marking.

2. At the time the [ROK] Korean mother B's child A was born, because B was in a marital relationship with [her then] Japanese husband C, the [child's] Japanese father D was unable to legally fetally acknowledge A, but about 3 months after A's birth C an arbitration for confirmation of non-existence of a parent-child relationship was petitioned [at a family court], and 12 days after a judgment of confirmation of non-existence of a parent-child relationship confirmed [that there A was not C's child] D acknowledged A, and so forth, and under [on the basis of] [such] factual relationships in the findings [of this court] A acquires Japanese nationality in accordance with Article 2, Item 1 of the Nationality Law.

A, B, C, D   The graphs 甲 (kō), 乙 (otsu), 丙 (hei), and 丁 (tei) are the first 4 of the 10 celestial stems, all of which are used much like A, B, C, D, et cetera, as in Party A, Party B, and so on. Though the mother appears first in the narrative stream of the Japanese text, the writer labels the child "A" and the mother "B" because the child is the subject of the clause (as well as the subject of the litigation). Labeling the mother's former husband (and the child's presumed father) "C" and the child's biological father "D" may be a matter of the order of their appearance in the narrative -- though at the start of the narrative, C arguably appears first because he, as the mother's husband at the time the child was born, was legally more significant than the child's biological father D, and would remain so until a family court agreed that C was not the child's actual father.

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参照法条 Relevant laws
Received Japanese text Structural translation

国籍法2条1号,民法772条,民法779条,民法783条1項

Nationality Law, Article 2, Item 1; Civil Code, Article 772; Civil Code, Article 779; Civil Code, Article 783, Paragraph 1

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

Structural translation

The final appeal in this case is dismissed.

The costs of the final appeal shall be the burden (responsibility) of the final appellant.

理由 Reasons

上告代理人増井和男、同河村吉晃、同高野伸、同佐村浩之、同折目斎、同寳金敏明、同山田知司、同植垣勝裕、同柳井康夫、同原優、同田村耕三、同本間章一、同田辺豊、同松田喜久の上告理由について

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

Structural translation

Concerning the reasons (grounds) for the appeal of [argued by] the appeal representatives Masui Kazuo, Kawamura Yoshiaki, Takano Shin, Samura Hiroyuki, Orime Hiroshi (Itsuki? Takeshi?), Hōkin Toshiaki, Yamada Tomoji, Uegaki Katsuhiro, Yanagii Yasuo, Hara Masaru, Tamura Kōzō, Honma Shōichi, Tanabe Yutaka, and Matsuda Yoshihisa:

The Ministry of Justice threw 14 of its prosecutors in the arena of Ko v. State. Most of these attorney bureaucrats would soon or eventually be judges. Masui Kazuo (増井和男 b1939), the first listed and probably the senior member of the team, was then the director of MOJ's Litigation Bureau, and most of the other members of the State's legal team were on his staff. Hara Yutaka (原優 b1953) would hold a number of judgeships before briefly serving as the director of the Civil Affairs Bureau. All this expertise, though, proved too clever for its own good. I doubt if any of the State's representatives took it personally. Most, as civil servants, probably saw themselves as merely doing their job, much as debaters learn to take both sides of an issue seriously -- simply in order to win. This is not to say that the Ministry of Justice had nothing at stake. It had its policies, based on decades of interpreting Japan's laws in the name of enforcing them. In this sense, legal bureaucrats believe that they are doing what is legally right. Still, in a court case, everything comes down to persuasive logic -- usually of the strictly legal kind.

外国人である母が子を懐胎した場合において、母が未婚であるか、又はその子が戸籍の記載上母の夫の嫡出子と推定されないときは、夫以外の日本人である父がその子を胎児認知することができ、その届出がされれば、国籍法二条一号により、子は出生の時に日本国籍を取得するものと解される。これに対し、外国人である母が子を懐胎した場合において、その子が戸籍の記載上母の夫の嫡出子と推定されるときは、夫以外の日本人である父がその子を胎児認知しようとしても、その届出は認知の要件を欠く不適法なものとして受理されないから、胎児認知という方法によっては、子が生来的に日本国籍を取得することはできない。もっとも、この場合には、子の出生後に、右夫と子との間の親子関係の不存在が判決等によって確定されれば、父の認知の届出が受理されることになるが、同法三条の規定に照らせば、同法においては認知の遡及効は認められていないと解すべきであるから、出生後に認知がされたというだけでは、子の出生の時に父との間に法律上の親子関係が存在していたということはできず、認知された子が同法二条一号に当然に該当するということにはならない。

右のように、戸籍の記載上嫡出の推定がされない場合には、胎児認知という手続を執ることにより、子が生来的に日本国籍を取得するみちが開かれているのに、右推定がされる場合には、胎児認知という手続を適法に執ることができないため、子が生来的に日本国籍を取得するみちがないとすると、同じく外国人の母の嫡出でない子でありながら、戸籍の記載いかんにより、子が生来的に日本国籍を取得するみちに著しい差があることになるが,このような著しい差異を生ずるような解釈をすることに合理性があるとはいい難い。したがって、できる限り右両者に同等のみちが開かれるように、同法二条一号の規定を合理的に解釈適用するのが相当である。

右の見地からすると、客観的にみて、戸籍の記載上嫡出の推定がされなければ日本人である父により胎児認知がされたであろうと認めるべき特段の事情がある場合には、右胎児認知がされた場合に準じて、国籍法二条一号の適用を認め、子は生来的に日本国籍を取得すると解するのが相当である。そして、生来的な日本国籍の取得はできる限り子の出生時に確定的に決定されることが望ましいことに照らせば、右の特段の事情があるというためには、母の夫と子との間の親子関係の不存在を確定するための法的手続が子の出生後遅滞なく執られた上、右不存在が確定されて認知の届出を適法にすることができるようになった後速やかに認知の届出がされることを要すると解すべきである。

所論は、戸籍の記載上嫡出の推定がされる場合においても、父が胎児認知の届出をすれば、その届出は、いったん不受理とされるものの、後に前記の親子関係の不存在が確定されれば、改めて受理されることになり、その結果、子は、父との法律上の親子関係が出生時からあったものと認められ、国籍法二条一号により、日本国籍を取得するに至るから、右の場合にも嫡出でない子の生来的な日本国籍取得のみちが閉ざされているわけではないと主張する。しかしながら、不適法として受理されない胎児認知の届出をあえてしておく方法があることをもって国籍取得のみちがあるというのは、適当でないことが明らかである。のみならず、所論の場合に子の生来的日本国籍取得を認めることは、出生の時点では父と子の間に法律上の親子関係があるとはいえなかったにもかかわらず、後の事情変更により、当初から法律上の親子関係があったと取り扱う例を示すものにほかならず、父が、胎児認知を届け出ても不適法として受理されないと考えて、まず認知の届出が適法に受理されるための手続を進め、その完了後速やかに認知の届出をするという方法を採った場合に、前記要件の下に同号の適用を認めることも、同号の合理的な解釈として許されるものというべきである。

原審の適法に確定した事実関係等によれば、(1)被上告人は、平成四年九月一五日、韓国人である母★仙和の子として出生した、(2)当時仙和は日本人である篠瀬幸夫と婚姻関係にあったため、被上告人の出生前に適法な胎児認知をすることはできなかった、(3)同年一一月四日、仙和と篠瀬は協議離婚した、(4)同年一二月一八日、篠瀬と被上告人との親子関係不存在確認の調停が申し立てられ、同五年四月二七日、右親子関係不存在確認の審判がされて、同年六月二日、右審判が確定した、(5)同月一四日、日本人である吉野博昭が被上告人を認知する旨の届出をした、というのである。右事実関係によれば、被上告人の出生後遅滞なく篠瀬と被上告人との親子関係不存在を確認するための手続が執られ、これが確定した後速やかに吉野が認知の届出をしたものということができ、客観的にみて、戸籍の記載上嫡出の推定がされなければ吉野により胎児認知がされたであろうと認めるべき特段の事情があるというべきであり、このように認めることの妨げになる事情はうかがわれない。そうであれば、被上告人は、日本人である吉野の子として、国籍法二条一号により、日本国籍を取得したものと認めるのが相当である。

以上と結論において同旨の原審の判断は、正当として是認することができる。論旨は、独自の見解に立って原判決を論難するものであり、採用することができない。

よって、行政事件訴訟法七条、民訴法四〇一条、九五条、八九条に従い、裁判官大西勝也、同根岸重治の各補足意見があるほか、裁判官全員一致の意見で、主文のとおり判決する。

In cases where a mother who is a foreign national became pregnant and the mother is unmarried or the child is not presumed to be the legitimate child of her husband registered in the Civil Status Register, a father who is a Japanese other than the husband is entitled to recognise this child as an embryo and once this is notified, by virtue of Article 2, subpara. 1 of the Law on Nationality, the child acquires Japanese nationality at the time of birth. On the other hand, in cases where a mother who is a foreign national became pregnant and the child is presumed to be the legitimate child of the mother's husband registered in the Civil Status Register, even if a father who is a Japanese other than the husband intends to recognise this child as an embryo, the application will be rejected as unlawful for not fulfilling the requirements for recognition, and therefore, the child cannot acquire Japanese nationality by birth by means of recognition as an embryo. In such cases, after the birth of the child, if the absence of the parental relationship between the husband and the child is confirmed by a judgment etc., the application of the father for recognition will be accepted, but in light of Article 3 of the Law on Nationality, recognition does not have a retrospective effect, and it cannot be established that at the time of the birth of the child, there was a parental relationship with the father by law merely by recognition after the birth, and thus, the recognised child does not automatically fall within the purview of the Article 2, subpara. 1 of the said Law.

As indicated above, if, by registration, there is no presumption of legitimacy, there is a possibility for the child to acquire Japanese nationality by birth by recognition as an embryo, while if there is such a presumption, it is not possible to lawfully recognise the child as an embryo, and the child has no possibility to acquire Japanese nationality by birth, there is a major difference in the means of acquiring Japanese nationality between the same illegitimate child of a foreign mother, depending on the registration. An interpretation which results in such a major difference cannot be regarded as reasonable. Therefore, Article 2, subpara. 1 of the Law on Nationality should be interpreted and applied in a manner enabling the same treatment between the two as much as possible.

From this viewpoint, if there were special circumstances in an objective way where, had there not been such a presumption, the child would have been recognised as an embryo, by applying Article 2, subpara. 1 of the Law on Nationality with a modification, similar to cases where the child was recognised as an embryo, it should be construed that the child acquires Japanese nationality by birth. In light of the necessity of definitely determining the nationality of the child at the time of the birth as much as possible, in order to acknowledge the existence of special circumstances, the procedure to establish the absence of the relationship between the mother's husband and the child has been initiated without delay after the birth of the child, and once the absence of such relationship has been established and the application for recognition became possible, the application was made without delay.

It is argued that also in cases where there is a presumption of legitimacy by the civil status registration, once the father applies for recognition as an embryo, the application is for the time being rejected, but once the absence of the above parental relationship has been established, it will be accepted, and as a result, the child is regarded to have had a parental relationship with the father from birth and is able to acquire Japanese nationality by birth, and therefore, even in such cases, the possibility of acquiring Japanese nationality by birth is not denied to illegitimate children. However, it is obvious that it is inappropriate to maintain that by applying for recognition as an embryo which is destined to be rejected, there is a way to acquire Japanese nationality. Furthermore, allowing the acquisition of Japanese nationality by birth in such cases means that although at the time of the birth, it could not be said that there was a lawful parental relationship between the father and the child, as a result of a subsequent change of circumstances, it can be regarded as if the parental relationship had existed from the beginning. If this is the case, if a person, on the assumption that the application for the recognition as an embryo would not be accepted for being unlawful, prepares the prerequisites for the acceptance of the application first, and then applies for recognition, applying this subparagraph under the above conditions shall be allowed as a reasonable interpretation of this subparagraph.

According to the facts lawfully established by the original instance court, (1) the jokoku appellee was born as the child of a Korean Mother A in September 15, 1992, (2) at that time, A was married to B, a Japanese, and therefore, recognition as an embryo before the birth of the child was not possible, (3) on November 4, 1992, A and B divorced by agreement, (4) on December 18, 1992, a conciliation proceeding for the recognition of the absence of a parental relationship between B and the jokoku appellee was initiated, and on April 27, 1993, the adjudication recognising the absence of this relationship was rendered and came into force on June 2, 1993, (5) on June 14, 1993, a Japanese C, applied for recognition of the jokoku appellee. Under such circumstances, it can be acknowledged that after the birth of the jokoku appellee, the procedure for the recognition of the absence of a parental relationship between B and the jokoku appellee was initiated, and once this was confirmed, C applied for recognition straight away, and therefore, there were special circumstances in an objective way where, had it not been for the presumption of legitimacy based upon registration, Y would have recognised the child as an embryo, and there is no circumstance which indicates otherwise. Thus, it is appropriate to allow the jokoku appellee to lawfully acquire Japanese nationality as a child of a Japanese, C, by virtue of Article 2, subpara. 1 of the Law on Nationality.

The ruling of the original instance court which, in conclusion, is the same as the above is justifiable. The arguments criticise the judgment of the original instance court based upon unique views and are unacceptable.

Thus, in accordance with Article 7 of the Law in Administrative Litigation, Articles 401, 95, and 89 of the Code of Civil Procedure, the justices unanimously rule as the main text of the judgment with the supplementary opinions of Justices ONISHI Katsuya and NEGISHI Shigeharu.

Structural translations

The two paragraphs that were underscored in the received text of the judgment, and my own structural translations, are present below without the underscoring. I have highlighted a few words and phrases for commentary.

In the following translations, I have taken the following liberties to minimally "anglicize" the Japanese metaphors.

右 = right above
戸籍の記載上 = on, in, from, in terms of based on family register entries
嫡出 = issuance of legal wife = legitimate issuance legitimacy
嫡出子 = legitimate-wife-issue-child legitimate (in-wedlock) child
非嫡出子 = non-legitimate-wife-issue-child legitimate (out-of-wedlock) child
胎児 = embryo / fetus fetus (fetal)
韓国人 = Republic-of-Korea-an = ROK Korean national of the Republic of Korea
日本人 = Japan-ese = Japanese national of Japan
日本国籍 = Japan-nationality Japanese nationality
事実関係 = facts [and their] connections factual matters, facts

Note that there is no "Japanese" equivalent to "Kankokujin" (韓国人) in reference to nationals of the Republic of Korea. "Koreans" would be an adequate equivalent in reference to nationals of the Empire of Korea (1897-1910). But today there are three distinct kinds of "Koreans" -- and the mother of the child is legally a "national of the Republic of Korea (ROK)" -- not a "citizen of the Democratic People's Republic of Korea (DPRK)" -- nor a "Chosenese", whose family register status in Japan is linked with the former Japanese territory of Chōsen), In order to preserve the parallel lexical structure of the words 日本人 and 韓国人 and related phrasing in the text of the judgment -- constrained by the need to specify "national of the Republic of Korea" in English -- I have stretched "Japanese" into "national of Japan". This is a strictly formalistic or stylistic choice -- but form and style are part of the object of "accuracy" in close translation.

Underscored paragraphs in main text Structural translation

1st paragraph

右の見地からすると、客観的にみて、戸籍の記載上嫡出の推定がされなければ日本人である父により胎児認知がされたであろうと認めるべき特段の事情がある場合には、右胎児認知がされた場合に準じて、国籍法二条一号の適用を認め、子は生来的に日本国籍を取得すると解するのが相当である。そして、生来的な日本国籍の取得はできる限り子の出生時に確定的に決定されることが望ましいことに照らせば、右の特段の事情があるというためには、母の夫と子との間の親子関係の不存在を確定するための法的手続が子の出生後遅滞なく執られた上、右不存在が確定されて認知の届出を適法にすることができるようになった後速やかに認知の届出がされることを要すると解すべきである。

1st paragraph

From the above viewpoint, objectively seen -- in an instance in which there are special circumstances, in which [a registrar] would recognize that had a presumption of legitimacy on the basis of entries in a family register not been made [the child] would have been acknowledged by [its] Japanese father, [the registrar], in accordance with the above instance in which [the child] was fetally acknowledged, would recognize the application of Article 2, Item 1 of the Nationality Law; and an understanding that the child acquired Japan(ese) nationality congenitally would be appropriate. And, in light of the desirability that the congenital acquisition of Japanese nationality is decisively determined as far as possible at the time of a child's birth, it is to be understood that it is essential that, on account of there being the above special conditions, in addition to legal procedures to decide the non-existence of a parent-child relationship between the mother's [former] husband and the child being taken after the child's birth without delay, the notification of acknowledgement be done promptly after the above non-existence was decided (finalized) and it became legally possible [for the child's father] to notify aknowledgement.

2nd paragraph

原審の適法に確定した事実関係等によれば、(1)被上告人は、平成四年九月一五日、韓国人である母★仙和の子として出生した、(2)当時仙和は日本人である篠瀬幸夫と婚姻関係にあったため、被上告人の出生前に適法な胎児認知をすることはできなかった、(3)同年一一月四日、仙和と篠瀬は協議離婚した、(4)同年一二月一八日、篠瀬と被上告人との親子関係不存在確認の調停が申し立てられ、同五年四月二七日、右親子関係不存在確認の審判がされて、同年六月二日、右審判が確定した、(5)同月一四日、日本人である吉野博昭が被上告人を認知する旨の届出をした、というのである。右事実関係によれば、被上告人の出生後遅滞なく篠瀬と被上告人との親子関係不存在を確認するための手続が執られ、これが確定した後速やかに吉野が認知の届出をしたものということができ、客観的にみて、戸籍の記載上嫡出の推定がされなければ吉野により胎児認知がされたであろうと認めるべき特段の事情があるというべきであり、このように認めることの妨げになる事情はうかがわれない。そうであれば、被上告人は、日本人である吉野の子として、国籍法二条一号により、日本国籍を取得したものと認めるのが相当である。

2nd paragraph

According to the factual matters et cetera the original [Tokyo High Court] judgment decided, they are (1) The appellee [the child seeking confirmation of its nationality], on 15 September 1992, was born the child of ★ [unrevealed family name] Senwa, [the appellee's] mother, a national of the Republic of Korea, (2) Because at the time Senwa was in a marital relationship with Shinose Yukio (Sachio?), a national of Japan, [the appellee's father] was unable to effect a legal fetal recognition before the appellee's birth, (3) On 4 January the same year, Senwa and Shinose divorced by conciliation, (4) On 18 December the same year, a mediation of determination of non-existence of parent-child relationship between Shinose and the appellee was petitioned [to a family court]; on 27 April 1993, a ruling of non-existence of the above parent-child relationship was made, and on 2 June the same year, the above ruling was decided (finalized), and (5) On the 14th of the same month, Yoshino Hiroaki, a national of Japan, notified [the registrar of the municipality in which he resided] to the effect that [he] acknowledges the appellee. According to the above factual matters, procedures to confirm the non-existence of a parent-child relationship between Shinose and the appellee were taken without delay after the birth of the appellee; promptly after this was determined Yoshino was able to effect a notification of acknowledgement; and objectively seen, it should be said that there were special circumstances in which had a presumption of legitimacy based on family register entries not been made fetal acknowledgement by Yoshino would have been made; and circumstances that would hinder thus recognizing [the timeliness of Yoshino's acknowledgment of the appellee] cannot are not evident. If this is so, to recognize that the appellee, as the child of Yoshino, a national of Japan, acquired Japanese nationality, in accordance with Article 2, Item 1 of the Nationality Law, is appropriate.

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補足意見 Supplementary opinion
Received Japanese text Received translation

裁判官大西勝也の補足意見は、次のとおりである。

国籍法二条一号にいう「出生の時に父が日本国民であるとき」とは、一般には、子の出生時において、日本国民である父との間に法律上の父子関係が形成されていることを意味し、子の出生後にされた認知の効力が出生時に遡及する(法例一八条、民法七八四条)結果、出生時に法律上の父子関係が形成されるような場合は含まれないと解すべきである。したがって、外国人を母とする非嫡出子が生来的に日本国籍を取得するのは、一般には、子が胎児である間に日本国民である実父から認知され、出生時において法律上の親子関係が形成されているというような場合に限られることとなる。この点は、第一審判決及び原判決が一致して判示するところであり、法廷意見もこのことを前提としている。

本件においては、被上告人出生時に至るまで仙和が篠瀬と婚姻関係にあったため、吉野が胎児認知の届出をしても受理されないであろう客観的事情にあったことは明らかである。このような場合に、国籍法二条一号の「出生の時」という文言をどのように解釈すべきかが、本件の問題である。

国籍は、国家の構成員たる資格であるが、何人が自国の国籍を有する国民であるかを決定することは、国の固有の権限に属し、日本国憲法一〇条は、「日本国民たる要件は、法律でこれを定める。」と規定している。すなわち、国籍法は、国家の構成員の範囲を定める国家存立の基本に関する公法であり、その解釈に当たっては、拡張解釈や類推解釈を極力避けることが要請される。しかし、一方において、国籍法は、親子関係等私法の規定によって決定される法律関係を前提とすることが多く、その解釈に当たっても、これらの先決的な問題の影響を受ける場合があることも、否定することができない。

被上告人の援用する昭和五七年一二月一八日付民二第七六〇八号法務省民事局長回答は、韓国人男と離婚した韓国人女の胎児について、離婚後三箇月目に日本人男が認知の届出をし、子の出生前であるため嫡出の推定を受けることとなるか否かが未確定であったがゆえに届出が受理されたところ、その後認知された子が離婚後三〇〇日以内に出生したが、事後において母の前夫と子との間に親子関係不存在の裁判が確定した場合には、前の胎児認知届は有効とされ、その結果、子は国籍法二条一号に該当するから、日本国籍を取得するとされた例である。この回答は、離婚後三〇〇日以内に出生することによって、いったん嫡出の推定を受けることとなりながら、その後親子関係不存在の裁判が確定したことによって、当初から嫡出の推定を受けないこととなった事案に関するものであって、たまたま戸籍上の取扱いとして、胎児認知の届出が受理されていたため、右胎児認知の届出を有効と解したのに対し、本件の場合は、戸籍上の取扱いとして、胎児認知の届出は受理されないこととなっているため、有効な届出をすることができなかったにすぎない。両者とも、子の生理的な意味での出生時において、父が日本国民であることが法律上確定していなかったことにおいては何ら変わりがなく、国籍法二条一号の「出生の時」の解釈上、両者を全く別異に考えるのは相当でない。

もとより、一般に行政実例を解釈の直接の根拠にすることが本末転倒であることは、所論の指摘するとおりであり、また、前記の回答の当否については、議論のあるところであろう。しかし、前示のとおり、国籍の決定は国の固有の権限に属し、国籍及びそれに連なる戸籍の取扱いは、これらに関する法令の解釈を含めて、第一次的には、これらの事務を所掌する国の行政機関の決するところにゆだねられているのであるから、国籍の得喪について、国がいかなる解釈の下に、いかなる取扱いをしているかを度外視することはできない。前記回答は、国家が一定の解釈を示すことにより、その権限に基づき国籍を決定した例として、参酌すべきものである。

そうすると、子の出生前に胎児認知をすることができなかったが、子の出生の約三箇月後に母の夫と子との間の親子関係の不存在を確定するための法的手続が執られ、その不存在が確定されて適法に認知の届出ができるようになった日から一二日後に認知の届出をしたという本件の場合も、前記回答の場合と同様に国籍法二条一号に該当すると解するのが相当である。右法条の「出生の時」の意義について、生理的意味における出生の時より広い時間的範囲を含むと解することが、やや文理に合致しないとのそしりは免れないにしても、両者とも右「出生の時」に含まれると解することが、国家の統一的意思を示す合理的解釈というべきである。

付言するに、以上のような解釈は、法廷意見が述べるとおり、母の夫と子との間の親子関係の不存在を確定するための法的手続が子の出生後「遅滞なく」執られ、右不存在が確定されて認知の届出を適法にすることができるようになった後「速やかに」認知の届出がされることを前提としている。本来出生子の生来的国籍が浮動的であることは、国家の立場はもちろん本人の立場からも好ましいことではなく、生来的国籍は、できるだけ出生時点ないしそれに近接する時点において確定的なものとする必要がある。その意味では、右親子関係不存在の確定手続及び認知の届出をすべき期間を具体的数値をもって示すことにより、画一的基準を設定することが望ましく、また、これらについて、民法、国籍法、戸籍法等に参考とすべき規定がないわけではないが、結局は立法的解決を待つほかはないであろう。本件は、国籍の浮動性防止の観点からしても、前記の解釈が許容される範囲内にある事例というべきである。

裁判官根岸重治は、裁判官大西勝也の補足意見に同調する。

The supplementary opinion of Justice ONISHI Katsuya is as follows:

'If the father is a Japanese national at the time of the birth of the child' as provided by Article 2, subpara. 1 of the Law on Nationality generally means that the legal parental relationship between the child and the Japanese father has been formed at the time of the birth of the child, and does not include cases where due to the retrospective effect of recognition after the birth of the child (Art.18, Law on the Application of Laws, Article 784, the Civil Code), the parental relationship at the time of the birth of the child is formed. Therefore, cases where an illegitimate child acquires Japanese nationality by birth are limited to those where the child was recognised by a Japanese father at the embryonic stage, and the parental relationship is formed at the time of the birth. This is found by the both the judgment of the first instance court and the original instance court, and the opinion of the present court presupposes this.

In the present case, since A and B were married until the birth of the jokoku appellee, it is evident that there was an objective circumstance where even if C applied for recognition as an embryo, the application would not have been accepted. The problem is, in such cases, how should the wording 'at the time of birth' in Article 2, subpara. 1 of the Law on Nationality be interpreted.

Nationality is a qualification as a component of a state. The determination of who should be a national of the state belongs to the exclusive power of the state. Article 10 of the Constitution of Japan provides that 'requirements as to the Japanese national are determined by law'. Thus, the Law on Nationality is a public law which concerns the basis of the existence of the state determining the scope of the components of the state, and thus, it is necessary to avoid extensive or analogical interpretation as much as possible in interpreting this Law. However, on the other hand, the Law on Nationality often presupposes legal relations which are determined by private law such as the law on parents and children. In its interpretation, the effect of such preliminary questions cannot be denied.

See Quality of translations above for how this graph would look if translated with an eye and ear for the original text.

The response of the Director of the Civil Affairs Bureau of the Ministry of Justice No.7608 dated December 18, 1982, which the jokoku appellee refers to, involves a case where in relation to an embryo of a Korean woman who divorced a Korean man, a Japanese man applied for recognition 3 months after the divorce, and since it was before the birth, it was not certain whether the legitimacy would be presumed, and therefore, the application was accepted. The child who was later recognised was born within 300 days of the divorce, but it was ruled that if a judgment recognising the absence of a parental relationship between the former husband of the mother and the child came into effect, the application for the recognition of the embryo is valid, and as a result, Article 2, subpara. 1 of the Law on Nationality is applicable and the child acquires Japanese nationality. This response concerns a case where the child, by being born within 300 days of the divorce, came to be presumed legitimate, but later, by the judgment recognising the absence of parental relationship coming into effect, was regarded not to have been presumed legitimate. By coincidence, as a practice of handling the civil status register, the application for the recognition had been accepted and therefore, the application was later found to be valid, while in the present case, it was only that, as a practice of registration, the application for the recognition as an embryo was not to be accepted, and therefore, a valid application was not possible. In both cases, it is the same that the fact that the father was a Japanese national was not lawfully ascertained at the time of the physical birth of the child, and it is inappropriate to treat them differently when interpreting 'at the time of the birth'.

Naturally, referring to the practice of administration as an immediate basis of the interpretation of law is the wrong way round as argued, and the above response itself may be arguable. However, as mentioned above, the determination of nationality belongs to the exclusive power of the state and the handling of nationality and the civil status which is directly linked to nationality, including the interpretation of the law on these matters, is primarily left to the state administration which has jurisdiction over these matters. Therefore, how the state is handling the matter regarding the interpretation of the acquisition and loss of nationality cannot be ignored. The above response should be taken into consideration as an example where the state, by presenting a certain interpretation, determined nationality based upon its power.

Thus, in the present case where it was not possible to recognise the child as an embryo, but after around 3 months, a legal proceeding for the recognition of the absence of the parental relationship between the mother's husband and the child was initiated and 12 days after the day when the absence of this relationship was established and came into effect and it became possible to apply for recognition, the application for recognition was submitted, it should be construed that Article 2, subpara. 1 of the Law on Nationality is applicable, as in the case of the above response. Interpretation that the phrase 'at the time of birth' as above includes a wider range of time than the physical birth may not avoid being criticized for not coinciding with the literal meaning of the law, but the interpretation that both are included in the phrase 'at the time of birth' should be regarded as reasonably representing the unified will of the state.

It should be added that the above interpretation presupposes, as the court opinion states, that the procedure to establish the absence of the relationship between the mother's husband and the child has been initiated 'without delay' after the birth of the child, and once the absence of such a relationship has been established and the application for recognition becomes possible, the application was made 'promptly'. It is not preferable for the nationality of a newly born child to be variable from the viewpoint of the state as well as the child, and it is necessary to determine nationality at the time of the birth or a time close to this point. In this sense, it is better to fix the specific time period for the initiation of the above procedure to establish the absence of the relationship and the application for recognition, and there are some provisions in the Civil Code, the Law on Nationality and the Law on Civil Status which can be taken into consideration. However, in the end, a legislative solution has to be awaited. The present case is within the scope in which the above interpretation is permissible from the viewpoint of preventing the instability of nationality.

Justice NEGISHI Shigeharu concurs with the opinion of Justice ONISHI Katsuya.

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Justices
最高裁判所第二小法廷
裁判長裁判官 河合 伸一
      裁判官 大西 勝也
      裁判官 根岸 重治
      裁判官 福田  博
Supreme Court, Second Petit
Presiding Judge Justice KAWAI Shinichi
                Justice ONISHI Katsuya
                Justice NEGISHI Shigeharu
                Justice FUKUDA Hiroshi

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

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