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State, 1993-1997</h1> <h3>Child acknowledged <u>after birth</u> acquires nationality <u>through birth</u></h3> <h4 class="gray">By William Wetherall</h4> <p><font class="cyan"> First posted 1 July 2009<br /> Last updated 21 June 2014</font></p> <hr /> <p><a class="mainlist" href="#overview"> Overview</a> &ensp;<a class="menulist" href="#origins"> Origins</a> |<a class="menulist" href="#ruling"> Ruling</a> |<a class="menulist" href="#chronology"> Chronology</a> |<a class="menulist" href="#opinions"> Quality of opinions</a> |<a class="menulist" href="#translations"> Quality of translations</a> |<a class="menulist" href="#sources"> Sources, presentation, commentary</a><br /> <font class="green"> Judgment</font> &ensp;<a class="menulist" href="#particulars"> Particulars</a> |<a class="menulist" href="#findings"> Findings</a> |<a class="menulist" href="#summary"> Summary</a> |<a class="menulist" href="#laws"> Relevant laws</a> |<a class="menulist" href="#maintext"> Main text</a> |<a class="menulist" href="#supplementary"> Supplementary opinion</a> |<a class="menulist" href="#justices"> Justices</a></p> <hr /> <a name="introduction"></a> <!-- ************** --> <!-- INTRODUCTION --> <!-- ************** --> <a name="overview"></a> <!-- ************************ --> <!-- OVERVIEW OF KO v. State --> <!-- ************************ --> <h3>Overview of Ko v. State, 1993-1997</h3> <p>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 <b>after its birth</b> satisfied a provision in the Nationality Law which stipulated <b>at time of birth</b>.</p> <p>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.</p> <h4>Ko as child of Otsu and Tei</h4> <p>I am calling this case "Ko v. State" because the received public copy of the judgment calls the child "K&#333;" (2u) or "A" in conformity with the convention of referring to parties as 2uYNNN (k&#333;, otsu, hei, tei) et cetera, meaning A, B, C, D and so forth. Ko's mother is called "Otsu" (YN) or "B", the mother's husband at the time of Ko's birth is called "Hei" (N) or "C", and Ko's father is called "Tei" (N) or "D".</p> <p class="center90 bcblue bgwhite">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").</p> <p class="center90 bcblue bgwhite">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).</p> <p>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 (2u K&#333;) as the NJTN (hi-j&#333;kokunin) or "[jokoku] appellee" whereas the State (V Kuni) is called the NJTN (j&#333;kokunin) or "[jokoku] appellant.</p> <p>Ko's mother is described as a ӗVN (Kankokujin), meaning a national of the Republic of Korea. The mother, while called "Otsu" in the summary of the judgement, is called &NT or "& Senwa" in the main text. "Senwa" is the Sino-Japanese reading of the name. The Sino-Korean reading would be S&#335;nhwa (McCune-Reischauer). Another received text says ; YW[ NT meaning "; (character outside [standard set of characters]) Senwa".</p> <p>The web-published version names Otsu's Japanese husband ({,px^+Y Shinose Yukio / Sachio) and Ko's Japanese father ( TΑZS-f 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.</p> <p>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.</p> <p class="center90 bcred bgwhite">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.</p> <h4>The complications of acknowledgement</h4> <p>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.</p> <p>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.</p> <p>In other words, it appears that Tei expected his acknowledgement of Ko to be effective <u>retroactively</u> -- pursuant to Article 2, Item 1 of the Nationality Law, which provides that a child shall be a Japanese national through birth "When, <u>at the time of its birth</u>, the father or the mother is a Japanese national".</p> <h4>Parent-child relationship</h4> <p>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.</p> <p>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.</p> <p>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.</p> <h4>Child's status until Supreme Court decision</h4> <p>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.</p> <p>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.</p> <p>However, Ko's status is worth speculation.</p> <p>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.</p> <p class="center90 bcblue bgwhite">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.</p> <p>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.</p> <p>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.</p> <p class="center90 bcblue bgwhite">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.</p> <p class="center90 bcgreen bgwhite">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.</p> <p class="center90 bcblue bgwhite">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.</p> <h4>On the surface</h4> <p>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, <u>at the time of its birth</u>, the father or the mother is a Japanese national".</p> <p>The issue here is whether a parent-child relationship existed between Ko and Tei <u>at the time of Ko's birth</u>. On the surface, it didn't. On the surface, what existed at the time of Ko's birth was a <u>presumed</u> 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 <u>after</u> Ko's birth. And Ko's father Tei was unable to acknowledge his paternity until <u>after</u> the presumed relationship was found not to exist.</p> <p>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 <u>from the day Tei's acknowledgement of Ko was accepted</u>. In other words, according to the paper trail -- the trail of official documents -- Tei was not <u>legally</u> Ko's father <u>at the time</u> of Ko's birth. Ergo, Article 2, Item 1 of the Nationality Law did not apply.</p> <p>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.</p> <h4>Two out of three courts begged to differ</h4> <p>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.</p> <p>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 <u>as though</u> Tei had acknowledged his child <u>at the time of its birth</u>.</p> <p>What mattered most to the court, then, was the father's <u>intent</u> to acknowledge the child -- before or at the time of its birth -- and the actions he took when possible to do so.</p> <p align="right"> <a style="text-decoration: none;" href="../nationality/Nationality_law_Ko_v_State.html"> <font class="red">Top</font></a>&ensp;&ensp;</p> <a name="origins"></a> <!-- ******** --> <!-- ORIGINS --> <!-- ******** --> <hr class="blue" /> <h3>Origins of case</h3> <p>Ko v. State originated in a dispute over the interpretation of the phrase Qun0Bf (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.</p> <h4>Article 2</h4> <p>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.</p> <p>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.</p> <p>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.</p> <h4>Article 3</h4> <p>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.</p> <p>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) <u>from the time of birth</u> -- not through recognition and legitimation (Article 3), which did not have retroactive effects.</p> <p class="center90 bcblue bgwhite">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 <a class="mainlist" href="../nationality/Nationality_law_Filipinos_v_State_2008.html">Filipinos v. State, 2003-2008</a> and <a class="mainlist" href="../nationality/Nationality_law_2009.html">2009 Nationality Law revisions</a> for further details.</p> <p align="right"> <a style="text-decoration: none;" href="../nationality/Nationality_law_Ko_v_State.html"> <font class="red">Top</font></a>&ensp;&ensp;</p> <a name="ruling"></a> <!-- ******** --> <!-- RULING --> <!-- ******** --> <hr class="blue" /> <h3>Ruling in case</h3> <p>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.</p> <p align="right"> <a style="text-decoration: none;" href="../nationality/Nationality_law_Ko_v_State.html"> <font class="red">Top</font></a>&ensp;&ensp;</p> <a name="chronology"></a> <!-- ******************* --> <!-- CHRONOLOGY OF CASE --> <!-- ******************* --> <hr class="blue" /> <h3>Chronology of case</h3> <p>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.</p> <p>The series of rulings which ended with the Supreme Court's decision in 1997 are as follows.</p> <div class="indent"> <pre> <b>First instance court (1993-1994)</b> Court: Tokyo District Court Case: Heisei 5 (Gyo-U) 349 Litigants: Ko v. State Judgment: 28 September 1994 Ruling: Ko is not Japanese <b>Second instance court (1994-1995)</b> 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 <b>Final court of appeal (1996-1997)</b> 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 </pre> </div> <table class="data wid100"> <tr> <td colspan="2" class="gray"> <font class="green"><b> Chronology of Ko v. State, 1993-1997</b></font> </td> </tr> <tr> <td align="right" valign="top" width="25%"> <p>15 September 1992</p> </td> <td width="75%"> <p>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.</p> <p>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.</p> </td> </tr> <tr> <td align="right" valign="top" width="25%"> <p>4 November 1992</p> </td> <td width="75%"> <p>Ko's mother Otsu and her husband Hei file a notification of divorce, which is accepted and immediately effective.</p> </td> </tr> <tr> <td align="right" valign="top" width="25%"> <p>18 December 1992</p> </td> <td width="75%"> <p>A family court convenes a conciliation proceeding to establish that Hei had not been Ko's father.</p> </td> </tr> <tr> <td align="right" valign="top" width="25%"> <p>27 April 1993</p> </td> <td width="75%"> <p>The family court rules that Ko's father had not been Hei.</p> </td> </tr> <tr> <td align="right" valign="top" width="25%"> <p>2 June 1993</p> </td> <td width="75%"> <p>The family court's ruling comes into force.</p> </td> </tr> <tr> <td align="right" valign="top" width="25%"> <p>14 June 1993</p> </td> <td width="75%"> <p>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.</p> <p>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.</p> <p>Hence Ko remained an alien, and as such could not be registered in Tei's family register.</p> </td> </tr> <tr> <td align="right" valign="top" width="25%"> <p>1993</p> </td> <td width="75%"> <p>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.</p> </td> </tr> <tr> <td align="right" valign="top" width="25%"> <p>28 September 1994</p> </td> <td width="75%"> <p>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.</p> </td> </tr> <tr> <td align="right" valign="top" width="25%"> <p>1994</p> </td> <td width="75%"> <p>The State appeals the Tokyo District Court's ruling to the Tokyo High Court.</p> </td> </tr> <tr> <td align="right" valign="top" width="25%"> <p>29 November 1995</p> </td> <td width="75%"> <p>The Tokyo High Court overturns the Tokyo District Court's decision in the State's favor. Ko is not Japanese.</p> </td> </tr> <tr> <td align="right" valign="top" width="25%"> <p>1996</p> </td> <td width="75%"> <p>Ko appeals the Tokyo High Court's ruling to the supreme court.</p> </td> </tr> <tr> <td align="right" valign="top" width="25%"> <p>17 October 1997</p> </td> <td width="75%"> <p>The Second Petit Bench of the Supreme Court overturns the Tokyo High Court's decision in Ko's favor. Ko is Japanese through birth.</p> </td> </tr> </table> <p align="right"> <a style="text-decoration: none;" href="../nationality/Nationality_law_Ko_v_State.html"> <font class="red">Top</font></a>&ensp;&ensp;</p> <a name="opinions"></a> <!-- ********************* --> <!-- QUALITY OF OPINIONS --> <!-- ********************* --> <hr class="blue" /> <h3>Quality of opinions</h3> <p>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.</p> <p>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.</p> <h4>Supplementary opinion</h4> <p>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 (lN,{NmQ0kQSlRwlN@\wVT{), 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.</p> <h5>Civil Affairs Bureau Director-General Notice No. 7608 of 18 December 1982</h5> <p>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.</p> <p>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.</p> <h5>Civil Affairs Bureau Director-General Notice No. 180 of 30 January 1998</h5> <p>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 (s^b10t^1g30elN,{180SlN@\wT), "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" (YVNkn0+Yn0ZQc[0SQ00P[k0d0D0f00e,gN7uK00wn0J\QL0B0c0_04XTn0e,gVM|n0 g!qk0d0D0f0). 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)</p> <h5>Civil Affairs Bureau Director-General Notice No. 2420 of 11 November 1999</h5> <p>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 (s^b11t^11g11elN0lN,{2420SlN@\,{Nw0,{Nww) "Concerning the treatment et cetera of extra-liaisonal [i.e., international private law related] fetal acknowledgements" ( nYv΀PQwJ\n0SqbD0I{k0d0D0f0). 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 ('Yck7t^3g20eNQ0l,{364SlR@\wVT{), 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)</p> <h5>Civil Affairs Bureau Director-General Notice No. 2030 of 18 July 2003</h5> <p>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)</p> <table class="data wid90 white"> <tr><td> <h4>Cited works</h4> <p>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 <a class="mainlist" href="http://c-faculty.chuo-u.ac.jp/~okuda/">Yasuhiro Okuda</a> (eY0u[_ 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.</p> <h5>Okuda 2010</h5> <p class="indent"> eY0u[_<br /> <b>VM|l0V[eln0$RafƖ</b><br /> e,gklxvz@bnjeSf 9<br /> qgN-N.Y'Yf[QHr02010t^3g1e RHr,{17RzvL<br /> xvi, 3830000XSL,g</p> <p class="indent"> Okuda Yasuhiro<br /> <b>Kokusekih&#333;&middot;kokusai kazokuh&#333; no saiban ikensho sh&#363;</b><br /> [Collection of court opinions on nationality law and family law]<br /> Nihon hikaku-h&#333; kenky&#363; shiry&#333; s&#333;sho 9<br /> [Japan comparative law studies materials library 9]<br /> Tokyo: Ch&#363;&#333; Daigaku Shuppanbu<br /> 1 March 2010, 1st edition, 1st printing<br /> xvi, 383 pages, hardcover</p> </td></tr> </table> <h4>"at the time of its birth"</h4> <p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p> <p align="right"> <a style="text-decoration: none;" href="../nationality/Nationality_law_Ko_v_State.html"> <font class="red">Top</font></a>&ensp;&ensp;</p> <a name="translations"></a> <!-- ************************* --> <!-- QUALITY OF TRANSLATIONS --> <!-- ************************* --> <hr class="blue" /> <h3>Quality of translations</h3> <p>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.</p> <h4>Republic of Korea</h4> <p>Ko's mother Otsu is described as a ӗVN (Kankokujin), which means she was a national of the Republic of Korea -- not merely a "Korean".</p> <p>While people writing in English may be inclined to conflate ӗVN (Kankokujin) and gN (Ch&#333;senjin), the two statuses are different, and courts do not speak of individuals in the manner of ӗV0gN (Kankoku0Ch&#333;senjin) or 0000 (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".</p> <h4>Family Register</h4> <p>Contrary to the received translation, a "koseki" (8bM|) is a "family (household) register" -- not a "Civil Register Status". Family registers are governed by the "Kosekih&#333;" (8bM|l) or "Family Register Law" -- not the "Law on Civil Status".</p> <p>"Civil status" -- such as it legally exists in Japan -- is defined by at least <u>two</u> 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.</p> <p class="indent">See <a class="mainlist" href="../nationality/Civil_status_and_registers.html">Civil status and registers: Honseki, residence, and polity affiliation in Japan</a> for a table showing the relationships between various kinds of civil registers in Japan and legal status.</p> <a name="translation"></a> <!-- ********************************* --> <!-- QUALITY OF RECEIVED TRANSLATION --> <!-- ********************************* --> <hr class="blue" /> <h3>Quality of received translation</h3> <p>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.</p> <p>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.</p> <table class="data wid90"> <tr class="yellow top"> <td width="24%"> <b>Received Japanese</b> </td> <td width="42%"> <font class="blue"><b>Structural translation</b></font> </td> <td width="34%"> <b>Received translation</b> </td> </tr> <tr class="top"> <td> <p>VM|o00V[n0ibT_00nj </td> <td> <p><font class="blue">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.</font></p> </td> <td> <p>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.</p> </td> </tr> </table> <p align="right"> <a style="text-decoration: none;" href="../nationality/Nationality_law_Ko_v_State.html"> <font class="red">Top</font></a>&ensp;&ensp;</p> <a name="sources"></a> <!-- ************************************** --> <!-- SOURCES, PRESENTATION, AND COMMENTARY --> <!-- ************************************** --> <hr class="blue" /> <h3>Sources, presentation, and commentary</h3> <br /> <h4>Sources</h4> <br /> <h5>Received Japanese text of ruling</h5> <p>The Japanese text was extracted from a pdf file downloaded from the database accessible through the Japanese government's <a class="mainlist" href="http://www.courts.go.jp/">$R@b Courts in Japan</a> website. Most case particulars and a summary were retrieved by a query using minimum case particulars. These particulars and the summary are also shown.</p> <h5>Received English translation</h5> <p>The English version was extracted from an html file retrieved by a query in the English section of the same <a class="mainlist" href="http://www.courts.go.jp/">$R@b Courts in Japan</a> 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 (\0uZS 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 <b>Japanese Law</b>, first published by Butterworths in 1993. Oxford University Press brought out a revised 2nd edition in 1999 and further revised 3rd edition in 2009.</p> <h5>Structural English translation</h5> <p>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.</p> <h4>Formatting, commentary, and markup</h4> <p>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.</p> <h5>Underscoring</h5> <p>All <u>underscoring</u> in the text of the judgment is as received. Unless otherwise noted, the <u>underscoring</u> of corresponding parts of the received translation is mine. All underscoring in my own commentary is, of course, also mine.</p> <h5>Parentheses</h5> <p>Unless otherwise noted, all (parentheses) in the received text and translation are as received.</p> <h5>Square and angle brackets</h5> <p>All in-line [square brackets] and &lt;angle brackets&gt; -- and everything enclosed in such brackets -- are mine.</p> <h5>Structural translations and commentary</h5> <p>My own closer (structural) translations are generally shown in <font class="blue">blue</font> 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 <font class="blue">&rarr; arrows &larr;</font> following the amended text.</p> <p>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.</p> <h5>Color highlighting</h5> <p>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.</p> <!-- ************** --> <!-- COLOR MARKUP --> <!-- ************** --> <table class="data wid90"> <tr class="green"> <td width="20%"><b>Color</b></td> <td width="40%"><b>Original</b></td> <td width="40%"><b>Translation</b></td> </tr> <!-- BACKGROUND HIGHLIGHTING --> <tr class="gray"> <td colspan="3"> <b>Background highlighting</b></td> </tr> <!-- BLUE --> <tr class="top"> <td class="blue"><font><b>Blue</b></font></td> <td colspan="2"> <font class="bgblue"> Corresponding parts of two or more texts selected for comparison</font></td> </tr> <!-- YELLOW --> <tr class="top"> <td class="yellow"><font><b>Yellow</b></font></td> <td colspan="2"> Content added to received text to <font class="bgyellow">reconstruct</font> a missing part</td> </tr> <!-- PINK --> <tr class="top"> <td class="pink"><font><b>Pink</b></font></td> <td colspan="2"> Transcription or scanning errors parenthetically corrected <font class="bgpink">in-line</font> <font class="blue">(sic = in-line)</font></td> </tr> <!-- GRAPHIC HIGHLIGHTING --> <tr class="gray"> <td colspan="3"> <b>Graphic highlighting</b></td> </tr> <!-- BLUE --> <tr class="top"> <td rowspan="2"><font class="blue"><b>Blue</b></font></td> <td><font class="blue">[ Clarification ]</font> <font size="1">(in-line)</font></td> <td><font class="blue">[ Clarification ]</font> <font size="1">(in-line)</font></td> </tr> <tr> <td>&ensp;</td> <td><font class="blue">&rarr; My closer translation &larr;</font> <font size="1">(in-line)</font><br /> <font class="blue">My closer translation</font> <font size="1">(boxed)</font></td> </tr> <!-- GREEN --> <tr class="top"> <td rowspan="2"><font class="green"><b>Green</b></font></td> <td>Presumed true and correct copy of the language of the original text</td> <td>May be too free and a bit off key but represents all elements or original</td> </tr> <tr> <td class="white right"> <font class="green">VM|l</font><br /> <br /> <br /> <font class="green">ӗV</font><br /> </td> <td class="white"> <font class="green">Nationality Law</font><br /> <font class="green">Nationality Act</font> <font size="1">(unconventional)</font><br /> <font class="green">Law / Act of Nationality</font> <font size="1">(unconventional)</font><br /> <font class="green">Korea</font> <font size="1">(if "Empire of Korea" 1897-1910)</font></td> </tr> <!-- PURPLE --> <tr class="top"> <td rowspan="2"><font class="purple"><b>Purple</b></font></td> <td>Problematic phrasing or usage in the language of the original text</td> <td>Imprecise or awkward, incomplete or embellished, or otherwise inadequate</td> </tr> <tr class="top"> <td class="white right"> <font class="green">VM|</font><br /> <font class="green">ӗV</font><br /> <font class="green">g</font><br /> <font class="green">Q0W</font></td> <td class="white"> <font class="purple">Citizenship</font > <font class="blue">&rarr; Nationality</font> <font size="1">(as legal status)</font><br /> <font class="purple">Korea</font> <font class="blue">&rarr; Republic of Korea</font> <font size="1">(since 1948)</font><br /> <font class="purple">Korea</font> <font class="blue">&rarr; Ch&#333;sen</font> <font size="1">(as territory 1910-1952)</font><br /> <font class="purple">Japan Proper</font> <font class="blue">&rarr; Interior</font> <font size="1">(as territory)</font></td> </tr> <!-- RED --> <tr class="top"> <td rowspan="2"><font class="red"><b>Red</b></font></td> <td>Incorrect phrasing or usage ; </td> <td>Misleading or incorrect</td> </tr> <tr class="top"> <td class="white right"> <font class="green">>ehY00</font><br /> <font class="green">1Y00</font><br /> <font class="green">g</font></td> <td class="white"> <font class="red">renounce</font> <font class="blue">&rarr; abandon, relinquish</font><br /> <font class="green">renounce, separate from</font><br /> <font class="red">Korea</font> <font class="blue">&rarr; Ch&#333;sen</font> <font size="1">(as territory)</font></td> </tr> <!-- CYAN --> <tr class="top"> <td rowspan="3"><font class="cyan"><b>Cyan</b></font></td> <td>; When original is <font class="red">incorrect</font></td> <td>Mistranslation is <font class="cyan">more correct than original</font></td> </tr> <tr class="top"> <td class="white right"> <font class="green">e,gh0<font class="red">g</font>h0n0uOT</font><br />; </td> <td class="white"> <font class="green">the <font class="red">annexation</font> of <font class="cyan">Korea</font> <font class="red">by</font> Japan</font><br /> <font class="blue">&rarr; the union of Japan and Ch&#333;sen</font></td> </tr> <tr> <td colspan="2" class="light"> <p>; &ensp; The example of incorrect <font class="red">g</font> (Ch&#333;sen) being mistranslated <font class="cyan">Korea</font> (ӗV Kankoku), thus "accidentally" correcting the usage in the judgement, can be seen in <a class="mainlist" href="../empires/Kanda_v_State_1961.html">Kanda v. State 1961</a>.</p> <p>1. While g (Ch&#333;sen) in the judgment is factually incorrect, the correct translation is "Ch&#333;sen" because that is what the original text says. Because the translators conflate "Ch&#333;sen" (g) with "Korea" (ӗV Kankoku), they habitually translate "Ch&#333;sen" 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.</p> <p>2. Note that where the judgment precisely paraphrases the phrasal logic of the expression "Nik-Kan heig&#333;" (eӗuOT) [Japan-Korea union] as "X to Y to no heig&#333;" (8h09h0n0uOT) [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 <u>in Japanese law</u> -- 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.</p> </td> </tr> </table> <p align="right"> <a style="text-decoration: none;" href="../nationality/Nationality_law_Ko_v_State.html"> <font class="red">Top</font></a>&ensp;&ensp;</p> <a name="judgment"></a> <!-- ********** --> <!-- JUDGMENT --> <!-- ********** --> <a name="particulars"></a> <!-- ************* --> <!-- PARTICULARS --> <!-- ************* --> <table class="data wid100"> <tr> <td colspan="2" class="ebony"> <font size="5" class="white"><b> 1997 Supreme Court judgment in Ko v. State</b></font><br /> <font class="lemon"><b> Japanese text, English version, and commentary</b></font> </td> </tr> <tr> <td colspan="2" class="green"> <b>Tokyo District Court</b> </td> </tr> <tr> <td width="40%" valign="top"> <p>,{N[$R@b TqgN0We$R@b <br /><br /> ,{N[NNjuSs^b5(L0)349 <br /><br /> ,{N[$Rt^ges^b6t^9g28e <br /><br /> ,{N[$Rzl$Rzl</p> </td> <td width="60%" valign="top"> <p><font class="blue"> Court of first instance: Tokyo District Court <br /><br /> First instance case number: Heisei 5 [1993] (Gyo-U) 349 <br /><br /> First instance decision: 28 September 1994 [Heisei 06-09-28] <br /><br /> First instance ruling: Ruling </font></p> </td> </tr> <tr> <td colspan="2" class="green"> <b>Tokyo High Court</b> </td> </tr> <tr> <td colspan="2" class="white"> <p>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.</p> </td> </tr> <tr> <td width="40%" valign="top"> <p><font class="blue"> [gؚ$R@bn0$Rzlo0]0n0z4XK00 0,{N[ 00 0S[ 0h0F00] </font></p> <p>c4[$R@b TqgNؚI{$R@b <br /><br /> c4NNjuSs^b6(L0)195<br /> <br /><br /> c4$Rt^ges^b7t^11g29e<br /> <br /><br /> c4$Rzl$Rzl</p> </td> <td width="60%" valign="top"> <p><font class="blue"> [The ruling of the Supreme Court refers to the "second instance" as the "original instance" from its standpoint.] </font></p> <p><font class="blue"> Appeal [second] instance: Tokyo High Court <br /><br /> Appeal [second] instance case number:<br /> Heisei 6 [1994] (Gyo-Ko) 195 <br /><br /> Date of appeal [second] instance decision:<br /> 29 November 1995 [Heisei 07-11-29] <br /><br /> Appeal [second] instance ruling: Ruling </font></p> </td> </tr> <tr> <td colspan="2" class="green"> <b>Supreme Court</b> </td> </tr> <tr> <td width="40%" valign="top"> <p>NNjuSs^b8(L0)60 <br /><br /> NN TVM|xˊBlNN <br /><br /> $Rt^ges^b9t^10g17e <br /><br /> l^ Tgؚ$R@b,{N\l^ <br /><br /> $R.z%R$Rzl <br /><br /> P}ghtS (܈aB00) <br /><br /> $ROƖ]0S0,{51]9S3925</p> </td> <td width="60%" valign="top"> <p><font class="blue"> Case number: Heisei 8 [1996] (Gyo-Tsu) 60 <br /><br /> Case name: Nationality confirmation request case <br /><br /> Date of judgment: 17 October 1997 [Heisei 09-10-17] <br /><br /> Court name: Supreme Court, Second Petit Bench <br /><br /> Type of judgment: Ruling <br /><br /> Results: Dismissed (there is a supplementary opinion) <br /><br /> Hanreish&#363; [Court Reports] Volume, Number, Page:<br /> Volume 51, Number 9, Page 3925 </font></p> </td> </tr> </table> <p align="right"> <a style="text-decoration: none;" href="../nationality/Nationality_law_Ko_v_State.html"> <font class="red">Top</font></a>&ensp;&ensp;</p> <a name="findings"></a> <!-- ********** --> <!-- FINDINGS --> <!-- ********** --> <table class="data wid100"> <tr> <td class="gray"> <font class="green"><b> $R:yN</b></font> </td> <td class="gray"> <font class="green"> <b>Findings</b></font> </td> </tr> <tr class="yellow"> <td> <b>Received Japanese text</b> </td> <td> <b>Received English translation</b> </td> </tr> <tr> <td width="40%" valign="top"> <p>N0<font class="green">YVNg0B00kn0^ZQP[</font>L0e,gNg0B006rk000<font class="green">΀PQwU00f0D0j0O0f0</font>0VM|lNagNSk000e,gVM|0S_Y004XT</p> <p>N0<font class="green">ӗVN</font>g0B00kn0^ZQP[g0B0c0f0<font class="green">e,gN</font>g0B006rk000Qu_k0wU00_0P[k0d0M0VM|lNagNSk000e,gVM|n0S_L0000_0NO</p> </td> <td width="60%" valign="top"> <p>Judgment upon the case where (1) <font class="purple">an illegitimate child of a foreign mother</font> <font class="green">has not been</font> <font class="red">recognised before birth as an embryo</font> <font class="blue">&rarr; fetally recognized &larr;</font> 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 <font class="red">Korean</font> <font class="blue">&rarr; Republic of Korea person = ROK national &larr;</font> mother was recognised by a <font class="green">Japanese</font> father was allowed to obtain Japanese nationality by of Article 2, subpara. 1 of the Law on Nationality.</p> </td> </tr> <tr> <td colspan="2" class="white"> <h4>Structural translation</h4> <p><font class="blue">1. Instance in which a <font class="green">non-legal-wife-issue (out-of-wedlock) child of mother who is an alien</font>, even though <font class="green">not fetally acknowledged</font> by a father who is Japanese, acquires Japan (Japanese) nationality in accordance with Article 2, Item 1 of the Nationality Law</font></p> <p><font class="blue">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</font></p> <h4>Commentary</h4> <p>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.</p> </td> </tr> </table> <p align="right"> <a style="text-decoration: none;" href="../nationality/Nationality_law_Ko_v_State.html"> <font class="red">Top</font></a>&ensp;&ensp;</p> <a name="summary"></a> <!-- ********* --> <!-- SUMMARY --> <!-- ********* --> <table class="data wid100"> <tr> <td class="gray"> <font class="green"><b> $Re </b></font> </td> <td class="gray"> <font class="green"><b> Summary of the judgment</b></font> </td> </tr> <tr class="yellow"> <td> <b>Received Japanese text</b> </td> <td> <b>Received English translation</b> </td> </tr> <tr> <td width="40%" valign="top"> <p>N0<font class="green">YVNg0B00kn0^ZQP[L0e,gNg0B006rk000΀PQwU00f0D0j0O0f000S^ZQP[L08bM|n0 Nkn0+Yn0ZQP[h0c[U000_00e,gNg0B006rk000΀PQwn0J\QL0StU00j0D04XTg0B0c0f00Sc[L0U00j0Q00p06rk000΀PQwL0U00_0g0B00F0h000y0M0yrkn0N`L0B00h0M0o0</font>0S΀PQwL0U00_04XTk0nX0f00VM|lNagNSn0i(u000P[o0uegvk0e,gVM|0S_Y00h0Y00n0L0vS_g0B000Syrkn0N`L0B00h0D0F0_00k0o00kn0+Yh0P[h0n0n0P[On0 NX[(W0x[Y00_00n0lvKb}L0P[n0Qu_Enj0O0W00_0 N0S NX[(WL0x[U00f0wn0J\Q0ilk0Y00S0h0L0g0M000F0k0j0c0_0_0K0k0wn0J\QL0U000S0h00Y000</p> <p>N0ӗVNg0B00k!n0P[<font class="green">2u</font>L0QuW0_0S_Bf0!L0e,gNg0B00"h0ZZYOk0B0c0_0_000e,gNg0B006r#L0ilk0<font class="green">2u</font>0΀PQwY00S0h0L0g0M0j0K0c0_0L00<font class="green">2u</font>n0Qun0} N{g_k0"h0<font class="green">2u</font>h0n0P[O NX[(Wxn0\PL03uW0zf0000P[O NX[(Wxn0[$RL0x[W0_0NNe_k0#L0<font class="green">2u</font>0wW0_0j0i0$R:yn0N[On0 Nk0J0D0f0o00<font class="green">2u</font>o00VM|lNagNSk000e,gVM|0S_Y000</p> </td> <td width="60%" valign="top"> <p>1. <font class="green">An illegitimate child of a foreign mother</font> acquires Japanese nationality by birth <font class="green">even when the child has not been</font> <font class="red">recognised as an embryo</font> <font class="blue">&rarr; fetally recognized (acknowledged) &larr;</font> <font class="purple">, if, in accordance with</font> <font class="red"> the entry in the register of civil status</font> <font class="blue">&rarr; entries in [her husband's] family register &larr;</font><font class="purple">, the legitimacy of the child as the child of the mother's</font> <font class="red">husband</font> <font class="blue">&rarr; Japanese husband &larr;</font> <font class="green">is presumed</font> <font class="red">by statute</font> <font class="blue">[pursuant to the Civil Code]</font> <font class="purple">and for this reason,</font> <font class="red">the application for recognition as an embryo</font> <font class="blue">&rarr; the notification for fetal recognition (acknowledgement) &larr;</font> <font class="green">had not been accepted,</font> <font class="purple">and if there were special circumstances where</font>, 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.</p> <p>2. When a Korean mother A gave birth to child <font class="green">P</font>, A was married to a Japanese, B and therefore, the Japanese father of <font class="green">P</font>, C was unable to lawfully recognise <font class="green">P</font> as an embryo, but after 3 months of the birth of <font class="green">P</font>, a conciliation proceeding for the recognition of the absence of a parental relationship between B and <font class="green">P</font> was initiated and after 12 days of the adjudication recognising the absence of this relationship, C recognised <font class="green">P</font>, under such circumstances, <font class="green">P</font> lawfully acquires Japanese nationality by virtue of Article 2, subpara. 1 of the Law on Nationality.</p> </td> </tr> <tr> <td colspan="2" class="white"> <h4>Structural translation</h4> <p><font class="blue">1. When there are special circumstances [<font class="red"><b>1</b></font>] in which it would be recognized that -- even though an out-of-wedlock child [<font class="red"><b>2</b></font>] 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 = <font class="red"><b>2</b></font>] out-of-wedlock child having been presumed [<font class="red"><b>3</b></font>] 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 = <font class="red"><b>3</b></font>] presumption had not been made the [child] would probably have been fetally acknowledged [<font class="red"><b>4</b></font>], [this court] -- in accordance with the instance in which the right [above] [<font class="red"><b>4</b></font>] 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 = <font class="red"><b>1</b></font>] special circumstances, after legal procedures for the purpose of determining the non-existence [<font class="red"><b>5</b></font>] 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 =<font class="red"><b>5</b></font>] non-existence has been determined and it becomes possible to regard a notification of acknowledgement as legal.</font></p> <p class="center90 bcblue bggray"> <font class="red"><b>Right</b></font> &ensp; 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.</p> <p><font class="blue">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.</font></p> <p class="center90 bcblue bggray"> <font class="red"><b>A, B, C, D</b></font> &ensp; The graphs 2u (k&#333;), YN (otsu), N (hei), and N (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.</p> </td> </tr> </table> <p align="right"> <a style="text-decoration: none;" href="../nationality/Nationality_law_Ko_v_State.html"> <font class="red">Top</font></a>&ensp;&ensp;</p> <a name="laws"></a> <!-- *************** --> <!-- RELEVANT LAWS --> <!-- *************** --> <table class="data wid100"> <tr> <td class="gray"> <font class="green"><b> Sgqlag </b></font> </td> <td class="gray"> <font class="green"><b> Relevant laws</b></font> </td> </tr> <tr class="yellow"> <td> <b>Received Japanese text</b> </td> <td> <font class="blue"><b>Structural translation</b></font> </td> </tr> <tr> <td width="40%" valign="top"> <p>VM|l2ag1S ll772ag ll779ag ll783ag1</p> </td> <td width="60%" valign="top"> <p><font class="blue"> Nationality Law, Article 2, Item 1; Civil Code, Article 772; Civil Code, Article 779; Civil Code, Article 783, Paragraph 1</font></p> </td> </tr> </table> <p align="right"> <a style="text-decoration: none;" href="../nationality/Nationality_law_Ko_v_State.html"> <font class="red">Top</font></a>&ensp;&ensp;</p> <a name="maintext"></a> <!-- *********** --> <!-- MAIN TEXT --> <!-- *********** --> <table class="data wid100"> <tr> <td width="38%" class="gray"> <font class="green"><b> ;Ne</b></font> </td> <td width="62%" class="gray"> <font class="green"><b> Main text of the judgment</b></font> </td> </tr> <tr class="yellow"> <td> <b>Received Japanese text</b> </td> <td> <b>Received English translation</b> </td> </tr> <tr> <td valign="top" width="40%"> <p>,gN NJT0htSY000<br /> NJT(uo0 NJTNn0bh0Y000</p> </td> <td valign="top" width="60%"> <p>The jokoku appeal shall be dismissed.<br /> The cost of the jokoku appeal shall be borne by the jokoku appellant.</p> </td> </tr> <tr> <td colspan="2" class="white"> <h4>Structural translation</h4> <p><font class="blue">The final appeal in this case is dismissed.</font></p> <p><font class="blue">The costs of the final appeal shall be the burden (responsibility) of the final appellant.</font></p> </td> </tr> <tr> <td class="gray"> <font class="green"><b> t1u</b></font> </td> <td class="gray"> <font class="green"><b> Reasons</b></font> </td> </tr> <tr> <td valign="top" width="40%"> <p> NJTNtNXNT7u0 TlQg TCf0 TؚΑ8O0 TPOQgimKN0 Tbve0 T[ёOef0 Tq\0uwS0 T iWRՈ0 TgN^+Y0 TS*Q0 T0uQg N0 T,gzN0 T0uJ0 T~g0uUENn0 NJTt1uk0d0D0f0</p> </td> <td valign="top" width="60%"> <p>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:</p> </td> </tr> <tr> <td colspan="2" class="bgwhite"> <h4>Structural translation</h4> <p><font class="blue">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?), H&#333;kin Toshiaki, Yamada Tomoji, Uegaki Katsuhiro, Yanagii Yasuo, Hara Masaru, Tamura K&#333;z&#333;, Honma Sh&#333;ichi, Tanabe Yutaka, and Matsuda Yoshihisa:</font></p> <p class="center90 bcblue bggray">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 (XNT7u 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 (S*Q 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 <u>legal</u> kind.</p> </td> </tr> <tr> <td valign="top" width="40%"> <p>YVNg0B00kL0P[0a΀W0_04XTk0J0D0f00kL0*gZZg0B00K00So0]0n0P[L08bM|n0 Nkn0+Yn0ZQP[h0c[U00j0D0h0M0o00+YNYn0e,gNg0B006rL0]0n0P[0΀PQwY00S0h0L0g0M00]0n0J\QL0U000p00VM|lNagNSk0000P[o0Qun0Bfk0e,gVM|0S_Y000n0h0U0000S00k0[W00YVNg0B00kL0P[0a΀W0_04XTk0J0D0f00]0n0P[L08bM|n0 Nkn0+Yn0ZQP[h0c[U000h0M0o00+YNYn0e,gNg0B006rL0]0n0P[0΀PQwW00F0h0W0f000]0n0J\Qo0wn0N0 kO0 Nilj00n0h0W0f0StU00j0D0K000΀PQwh0D0F0elk00c0f0o00P[L0uegvk0e,gVM|0S_Y00S0h0o0g0M0j0D000c0h000S0n04XTk0o00P[n0Qu_k00S+Yh0P[h0n0n0P[On0 NX[(WL0$RzlI{k00c0f0x[U000p006rn0wn0J\QL0StU000S0h0k0j00L00 Tl Nagn0[k0gq0[0p00 Tlk0J0D0f0o0wn0aSRo0000f0D0j0D0h0Y0y0M0g0B00K000Qu_k0wL0U00_0h0D0F0`0Q0g0o00P[n0Qun0Bfk06rh0n0k0l_ Nn0P[OL0X[(WW0f0D0_0h0D0F0S0h0o0g0M0Z00wU00_0P[L0 TlNagNSk0S_6qk0rS_Y00h0D0F0S0h0k0o0j00j0D00</p> <p>Sn00F0k008bM|n0 NZQn0c[L0U00j0D04XTk0o00΀PQwh0D0F0Kb}0W0S0h0k0000P[L0uegvk0e,gVM|0S_Y000a0L0K00f0D00n0k00Sc[L0U0004XTk0o00΀PQwh0D0F0Kb}0ilk0W0S0h0L0g0M0j0D0_000P[L0uegvk0e,gVM|0S_Y000a0L0j0D0h0Y00h00 TX0O0YVNn0kn0ZQg0j0D0P[g0B00j0L0008bM|n0 D0K00k0000P[L0uegvk0e,gVM|0S_Y000a0k0WW0D0]L0B00S0h0k0j00L0 S0n00F0j0WW0D0]pu0uZ000F0j0ȑ0Y00S0h0k0Tt'`L0B00h0o0D0D0D00W0_0L0c0f00g0M00P0S!Nk0 TI{n00a0L0K0000F0k00 TlNagNSn0[0Ttvk0ȑi(uY00n0L0vS_g0B000</p> <p>Sn00WK00Y00h00<u>[vk00f008bM|n0 NZQn0c[L0U00j0Q00p0e,gNg0B006rk000΀PQwL0U00_0g0B00F0h000y0M0yrkn0N`L0B004XTk0o00S΀PQwL0U00_04XTk0nX0f00VM|lNagNSn0i(u000P[o0uegvk0e,gVM|0S_Y00h0Y00n0L0vS_g0B000]0W0f00uegvj0e,gVM|n0S_o0g0M00P0P[n0QuBfk0x[vk0zl[U000S0h0L0g~0W0D0S0h0k0gq0[0p00Sn0yrkn0N`L0B00h0D0F0_00k0o00kn0+Yh0P[h0n0n0P[On0 NX[(W0x[Y00_00n0lvKb}L0P[n0Qu_Enj0O0W00_0 N0S NX[(WL0x[U00f0wn0J\Q0ilk0Y00S0h0L0g0M000F0k0j0c0_0_0K0k0wn0J\QL0U000S0h00Y00h0Y0y0M0g0B000</u></p> <p>@b֊o008bM|n0 NZQn0c[L0U0004XTk0J0D0f0006rL0΀PQwn0J\Q0Y00p00]0n0J\Qo00D0c0_00 NSth0U0000n0n00_k0MRn0P[On0 NX[(WL0x[U000p009e0f0StU000S0h0k0j000]0n0P}g0P[o006rh0n0l_ Nn0P[OL0QuBfK00B0c0_00n0h00000VM|lNagNSk0000e,gVM|0S_Y00k00K000Sn04XTk00ZQg0j0D0P[n0uegvj0e,gVM|S_n00a0L0V0U00f0D000Q0g0o0j0D0h0;N5_Y000W0K0W0j0L000 Nilh0W0f0StU00j0D0΀PQwn0J\Q0B0H0f0W0f0J0O0elL0B00S0h000c0f0VM|S_n00a0L0B00h0D0F0n0o00iS_g0j0D0S0h0L0f0K0g0B000n00j00Z00@b֊n04XTk0P[n0uegve,gVM|S_000S0h0o00Qun0Bfpg0o06rh0P[n0k0l_ Nn0P[OL0B00h0o0D0H0j0K0c0_0k00K0K000Z00_n0N` Yfk0000S_RK00l_ Nn0P[OL0B0c0_0h0S0qbF0O0:yY00n0k0{0K0j00Z006rL00΀PQw0J\Q0Qf00 Nilh0W0f0StU00j0D0h0H0f00~0Z0wn0J\QL0ilk0StU000_00n0Kb}0200]0n0[N_0K0k0wn0J\Q0Y00h0D0F0el0cc0_04XTk00MRNn0 Nk0 TSn0i(u000S0h000 TSn0Ttvj0ȑh0W0f01U0000n0h0D0F0y0M0g0B000</p> <p><u>S[n0ilk0x[W0_0N[OI{k000p00 NJTNo00s^bVt^]NgNNe0ӗVNg0B00k&NTn0P[h0W0f0QuW0_00 S_BfNTo0e,gNg0B00{,px^+Yh0ZZYOk0B0c0_0_000 NJTNn0QuMRk0ilj0΀PQw0Y00S0h0o0g0M0j0K0c0_00 Tt^NNgVe0NTh0{,po0TSpZZW0_00 Tt^NNgNkQe0{,ph0 NJTNh0n0P[O NX[(Wxn0\PL03uW0zf0000 TNt^VgNNe0SP[O NX[(Wxn0[$RL0U00f00 Tt^mQgNe0S[$RL0x[W0_00 TgNVe0e,gNg0B00 TΑZS-fL0 NJTN0wY00en0J\Q0W0_00h0D0F0n0g0B000SN[Ok000p00 NJTNn0Qu_Enj0O0{,ph0 NJTNh0n0P[O NX[(W0xY00_00n0Kb}L0W000S00L0x[W0_0_0K0k0 TΑL0wn0J\Q0W0_00n0h0D0F0S0h0L0g0M00[vk00f008bM|n0 NZQn0c[L0U00j0Q00p0 TΑk000΀PQwL0U00_0g0B00F0h000y0M0yrkn0N`L0B00h0D0F0y0M0g0B000S0n00F0k000S0h0n0YR0k0j00N`o0F0K0L000j0D00]0F0g0B00p00 NJTNo00e,gNg0B00 TΑn0P[h0W0f00VM|lNagNSk0000e,gVM|0S_W0_00n0h000n0L0vS_g0B000</u></p> <p>N Nh0P}֊k0J0D0f0 Ten0S[n0$Reo00ckS_h0W0f0/fY00S0h0L0g0M000֊eo00rn0k0zc0f0S$Rzl0֊Y000n0g0B000c(uY00S0h0L0g0M0j0D00</p> <p>0c0f00L?eNN4lNag0l4lV0Nag0]NNag0kQ]Nagk0_D00$R['YR_N0 T9h\͑ln0T܈aL0B00{0K00$R[hQTNn0ag00;Nen0h0J00$RzlY000</p> </td> <td valign="top" width="60%"> <p>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.</p> <p>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.</p> <p>From this viewpoint, <u>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.</u></p> <p>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.</p> <p><u>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.</u></p> <p>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.</p> <p>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.</p> </td> </tr> <tr> <td colspan="2" class="top white"> <h4>Structural translations</h4> <p>The two paragraphs that were <u>underscored</u> 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.</p> <p>In the following translations, I have taken the following liberties to minimally "anglicize" the Japanese metaphors.</p> <p class="center90 bcblue bglight"> S = right <font class="red">!</font> <font class="blue">above</font><br /> 8bM|n0 N = on, in, from, in terms of <font class="red">!</font> <font class="blue">based on family register entries</font><br /> ZQ = issuance of legal wife = legitimate issuance <font class="red">!</font> <font class="blue">legitimacy</font><br /> ZQP[ = legitimate-wife-issue-child <font class="red">!</font> <font class="blue">legitimate (in-wedlock) child</font><br /> ^ZQP[ = non-legitimate-wife-issue-child <font class="red">!</font> <font class="blue">legitimate (out-of-wedlock) child</font><br /> ΀PQ = embryo / fetus <font class="red">!</font> <font class="blue">fetus (fetal)</font><br /> ӗVN = Republic-of-Korea-an = ROK Korean <font class="red">!</font> <font class="blue">national of the Republic of Korea</font><br /> e,gN = Japan-ese = Japanese <font class="red">!</font> <font class="blue">national of Japan</font><br /> e,gVM| = Japan-nationality <font class="red">!</font> <font class="blue">Japanese nationality</font><br /> N[O = facts [and their] connections <font class="red">!</font> <font class="blue">factual matters, facts</font></p> <p>Note that there is no "Japanese" equivalent to "Kankokujin" (ӗVN) 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 Ch&#333;sen), In order to preserve the parallel lexical structure of the words e,gN and ӗVN 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.</p> </td> </tr> <tr class="yellow"> <td> <b>Underscored paragraphs in main text</b> </td> <td> <font class="blue"><b>Structural translation</b></font> </td> </tr> <tr class="top"> <td> <h4>1st paragraph</h4> <p>Sn00WK00Y00h00[vk00f008bM|n0 NZQn0c[L0U00j0Q00p0e,gNg0B006rk000΀PQwL0U00_0g0B00F0h000y0M0yrkn0N`L0B004XTk0o00S΀PQwL0U00_04XTk0nX0f00VM|lNagNSn0i(u000P[o0uegvk0e,gVM|0S_Y00h0Y00n0L0vS_g0B000]0W0f00uegvj0e,gVM|n0S_o0g0M00P0P[n0QuBfk0x[vk0zl[U000S0h0L0g~0W0D0S0h0k0gq0[0p00Sn0yrkn0N`L0B00h0D0F0_00k0o00kn0+Yh0P[h0n0n0P[On0 NX[(W0x[Y00_00n0lvKb}L0P[n0Qu_Enj0O0W00_0 N0S NX[(WL0x[U00f0wn0J\Q0ilk0Y00S0h0L0g0M000F0k0j0c0_0_0K0k0wn0J\QL0U000S0h00Y00h0Y0y0M0g0B000</p> </td> <td> <h4>1st paragraph</h4> <p class="blue">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.</p> </td> </tr> <tr class="top"> <td> <h4>2nd paragraph</h4> <p>S[n0ilk0x[W0_0N[OI{k000p00 NJTNo00s^bVt^]NgNNe0ӗVNg0B00k&NTn0P[h0W0f0QuW0_00 S_BfNTo0e,gNg0B00{,px^+Yh0ZZYOk0B0c0_0_000 NJTNn0QuMRk0ilj0΀PQw0Y00S0h0o0g0M0j0K0c0_00 Tt^NNgVe0NTh0{,po0TSpZZW0_00 Tt^NNgNkQe0{,ph0 NJTNh0n0P[O NX[(Wxn0\PL03uW0zf0000 TNt^VgNNe0SP[O NX[(Wxn0[$RL0U00f00 Tt^mQgNe0S[$RL0x[W0_00 TgNVe0e,gNg0B00 TΑZS-fL0 NJTN0wY00en0J\Q0W0_00h0D0F0n0g0B000SN[Ok000p00 NJTNn0Qu_Enj0O0{,ph0 NJTNh0n0P[O NX[(W0xY00_00n0Kb}L0W000S00L0x[W0_0_0K0k0 TΑL0wn0J\Q0W0_00n0h0D0F0S0h0L0g0M00[vk00f008bM|n0 NZQn0c[L0U00j0Q00p0 TΑk000΀PQwL0U00_0g0B00F0h000y0M0yrkn0N`L0B00h0D0F0y0M0g0B000S0n00F0k000S0h0n0YR0k0j00N`o0F0K0L000j0D00]0F0g0B00p00 NJTNo00e,gNg0B00 TΑn0P[h0W0f00VM|lNagNSk0000e,gVM|0S_W0_00n0h000n0L0vS_g0B000</p> </td> <td> <h4>2nd paragraph</h4> <p class="blue">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.</p> </td> </tr> </table> <p align="right"> <a style="text-decoration: none;" href="../nationality/Nationality_law_Ko_v_State.html"> <font class="red">Top</font></a>&ensp;&ensp;</p> <a name="supplementary"></a> <!-- *********************** --> <!-- SUPPLEMENTARY OPINION --> <!-- *********************** --> <table class="data wid100"> <tr> <td class="gray"> <font class="green"><b> ܈a </b></font> </td> <td class="gray"> <font class="green"><b> Supplementary opinion</b></font> </td> </tr> <tr class="yellow"> <td width="40%"> <b>Received Japanese text</b> </td> <td width="60%"> <b>Received translation</b> </td> </tr> <tr class="top"> <td> <p>$R['YR_Nn0܈ao00!kn0h0J00g0B000</p> <p>VM|lNagNSk0D0F0 0Qun0Bfk06rL0e,gVlg0B00h0M0 0h0o00N,k0o00P[n0QuBfk0J0D0f00e,gVlg0B006rh0n0k0l_ Nn06rP[OL0b_bU00f0D00S0h00asTW00P[n0Qu_k0U00_0wn0RRL0QuBfk0aSY00lONkQag0llNkQVag P}g0QuBfk0l_ Nn06rP[OL0b_bU0000F0j04XTo0+T~00j0D0h0Y0y0M0g0B000W0_0L0c0f00YVN0kh0Y00^ZQP[L0uegvk0e,gVM|0S_Y00n0o00N,k0o00P[L0΀PQg0B00k0e,gVlg0B00[6rK00wU000QuBfk0J0D0f0l_ Nn0P[OL0b_bU00f0D00h0D0F00F0j04XTk0P000S0h0h0j000S0n0po00,{N[$RzlSs0S$RzlL0NW0f0$R:yY00h0S00g0B000l^a0S0n0S0h00MRch0W0f0D000</p> <p>,gNk0J0D0f0o00 NJTNQuBfk00~0g0NTL0{,ph0ZZYOk0B0c0_0_000 TΑL0΀PQwn0J\Q0W0f00StU00j0D0g0B00F0[vN`k0B0c0_0S0h0o0f0K0g0B000S0n00F0j04XTk00VM|lNagNSn0 0Qun0Bf 0h0D0F0e0i0n00F0k0ȑY0y0M0K0L00,gNn0OULg0B000</p> <p><font class="green">VM|o00V[n0ibT_00nj</p> <p> NJTNn0c(uY00-fTNNt^NNgNkQeNlN,{NmQ0kQSlRwlN@\wVT{o00ӗVN7uh0ZZW0_0ӗVNsYn0΀PQk0d0D0f00ZZ_ N{gvk0e,gN7uL0wn0J\Q0W00P[n0QuMRg0B00_00ZQn0c[0SQ00S0h0h0j00K0&TK0L0*gx[g0B0c0_0L00H0k0J\QL0StU00_0h0S000]0n0_wU00_0P[L0ZZ_ N00eNQk0QuW0_0L00N_k0J0D0f0kn0MR+Yh0P[h0n0k0P[O NX[(Wn0$RL0x[W0_04XTk0o00MRn0΀PQwJ\o0 gRh0U000]0n0P}g0P[o0VM|lNagNSk0rS_Y00K000e,gVM|0S_Y00h0U00_0Og0B000S0n0VT{o00ZZ_ N00eNQk0QuY00S0h0k00c0f00D0c0_00ZQn0c[0SQ00S0h0h0j00j0L000]0n0_P[O NX[(Wn0$RL0x[W0_0S0h0k00c0f00S_RK00ZQn0c[0SQ0j0D0S0h0h0j0c0_0NHhk0Y000n0g0B0c0f00_0~0_0~08bM| Nn0SqbD0h0W0f00΀PQwn0J\QL0StU00f0D0_0_000S΀PQwn0J\Q0 gRh0W0_0n0k0[W00,gNn04XTo008bM| Nn0SqbD0h0W0f00΀PQwn0J\Qo0StU00j0D0S0h0h0j0c0f0D00_000 gRj0J\Q0Y00S0h0L0g0M0j0K0c0_0k0Y0N0j0D00!Nh000P[n0utvj0asTg0n0QuBfk0J0D0f006rL0e,gVlg0B00S0h0L0l_ Nx[W0f0D0j0K0c0_0S0h0k0J0D0f0o0UO0 Y00L0j0O00VM|lNagNSn0 0Qun0Bf 0n0ȑ N0!N0hQO0%Rpuk0H00n0o0vS_g0j0D00</p> <p>0h0000N,k0L?e[O0ȑn0vcn09hbk0Y00S0h0L0,g+gPg0B00S0h0o00@b֊n0cXdY00h0J00g0B000~0_00MRn0VT{n0S_&Tk0d0D0f0o00p֊n0B00h0S00g0B00F00W0K0W00MR:yn0h0J000VM|n0zl[o0Vn0V gn0)jPk0^\W00VM|Ss0]00k0#j008bM|n0SqbD0o00S000k0Y00lNn0ȑ0+T0f00,{N!kvk0o00S000n0NR0@bcY00Vn0L?e_jn0zlY00h0S00k00`0m000f0D00n0g0B00K000VM|n0_Uk0d0D0f00VL0D0K0j00ȑn0 Nk00D0K0j00SqbD00W0f0D00K00^YY00S0h0o0g0M0j0D00MRVT{o00V[L0N[n0ȑ0:yY0S0h0k0000]0n0)jPk0We0M0VM|0zl[W0_0Oh0W0f00SLY0y0M00n0g0B000</p> <p>]0F0Y00h00P[n0QuMRk0΀PQw0Y00S0h0L0g0M0j0K0c0_0L00P[n0Qun0} N{g_k0kn0+Yh0P[h0n0n0P[On0 NX[(W0x[Y00_00n0lvKb}L0W000]0n0 NX[(WL0x[U00f0ilk0wn0J\QL0g0M000F0k0j0c0_0eK00NNe_k0wn0J\Q0W0_0h0D0F0,gNn04XT00MRVT{n04XTh0 Tik0VM|lNagNSk0rS_Y00h0Y00n0L0vS_g0B000Slagn0 0Qun0Bf 0n0ak0d0D0f00utvasTk0J0Q00Qun0Bf00^D0Bfv{V0+T0h0Y00S0h0L0000etk0TW0j0D0h0n0]0W00o0MQ0j0D0k0W0f000!Nh00S 0Qun0Bf 0k0+T~000h0Y00S0h0L00V[n0q}Nva`0:yY0Ttvȑh0D0F0y0M0g0B000</p> <p>NY00k00N Nn00F0j0ȑo00l^aL0y00h0J000kn0+Yh0P[h0n0n0P[On0 NX[(W0x[Y00_00n0lvKb}L0P[n0Qu_ 0Enj0O0 0W000S NX[(WL0x[U00f0wn0J\Q0ilk0Y00S0h0L0g0M000F0k0j0c0_0_ 00K0k0 0wn0J\QL0U000S0h00MRch0W0f0D000,gegQuP[n0uegvVM|L0nmRvg0B00S0h0o00V[n0z4Xo00a000,gNn0z4XK000}Y~0W0D0S0h0g0o0j0O00uegvVM|o00g0M00`0Q0QuBfpj0D0W0]00k0яcY00Bfpk0J0D0f0x[vj00n0h0Y00_L0B000]0n0asTg0o00SP[O NX[(Wn0x[Kb}Ss0wn0J\Q0Y0y0M0g0wQSOvpe$P00c0f0:yY0S0h0k0000;uNvWn0-[Y00S0h0L0g~0W0O00~0_00S000k0d0D0f00ll0VM|l08bM|lI{k0Sh0Y0y0M0[L0j0D00Q0g0o0j0D0L00P}@\o0zlvzl0_d0{0K0o0j0D0g0B00F00,gNo00VM|n0nmR'`2bkn0pK00W0f000MRn0ȑL01[U000{VQk0B00NOh0D0F0y0M0g0B000</p> <p>$R[9h\͑lo00$R['YR_Nn0܈ak0 TY000</p> </td> <td> <p>The supplementary opinion of Justice ONISHI Katsuya is as follows:</p> <p>'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.</p> <p>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.</p> <p><font class="purple">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.</font></p> <p class="center90 bcblue bgwhite">See <a class="mainlist" href="#translations">Quality of translations</a> above for how this graph would look if translated with an eye and ear for the original text.</p> <p>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'.</p> <p>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.</p> <p>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.</p> <p>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.</p> <p>Justice NEGISHI Shigeharu concurs with the opinion of Justice ONISHI Katsuya.</p> </td> </tr> </table> <p align="right"> <a style="text-decoration: none;" href="../nationality/Nationality_law_Ko_v_State.html"> <font class="red">Top</font></a>&ensp;&ensp;</p> <a name="justices"></a> <!-- ********** --> <!-- JUSTICES --> <!-- ********** --> <table class="data wid100"> <tr> <td colspan="2" class="gray"> <font class="green"><b> Justices</b></font> </td> </tr> <tr class="top"> <td width="40%"> gؚ$R@b,{N\l^ <pre> $Rw$R[0lT08ON $R[0'Y0R_N $R[09h\0͑l $R[0y0u00ZS </pre> </td> <td width="60%"> <font class="blue">Supreme Court, Second Petit</font> <pre> Presiding Judge Justice KAWAI Shinichi Justice ONISHI Katsuya Justice NEGISHI Shigeharu Justice FUKUDA Hiroshi </pre> <p>(*Translated by Sir Ernest Satow Chair of Japanese Law, University of London)</p> </td> </tr> </table> <p align="right"> <a style="text-decoration: none;" href="../nationality/Nationality_law_Ko_v_State.html"> <font class="red">Top</font></a>&ensp;&ensp;</p> <hr /> </div> <!-- FOOTER --> <div id="footer"> Copyright &copy; by William Wetherall<br /> <font class="f6blue"> www.yoshabunko.com</font><br /> <!-- W3 XHTML VALIDATOR --> <a href="http://validator.w3.org/check?uri=referer"><img src="http://www.w3.org/Icons/valid-xhtml10" alt="Valid XHTML 1.0 Transitional" height="31" width="88" /></a> </div> </body> </html>