No discrimination against an illegitimate child

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No discrimination against an illegitimate child

Post by SATOSHI MINAMIKATA on Sun Jun 08, 2014 12:45 am

Back to September 2013, the Grand Bench of the Supreme Court made a decision to alter the precedent concerning the portion of an illegitimate child acknowledged by father in the case of succession, stating that section 900(4) of the Civil Code is violation of the equality principle of the Japanese Constitution Article 14 (SD 4 September 2013).

Section 900(2) stipulates, ‘if there are two or more heirs of the same rank, their shares in inheritance shall be determined by the following items….(iv) if there are two or more children, lineal ascendants, or siblings, the share in the inheritance of each shall be divided equally; provided that the share in inheritance of an child out of wedlock shall be one half of the share in inheritance of a child in wedlock, and the share in inheritance of a sibling who shares only one parent with the decedent shall be one half of the share in inheritance of a sibling who shares both parents’ and Article 14 provides, ‘All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.   Peers and peerage shall not be recognized.  No privilege shall accompany any award of honor, decoration or any distinction, nor shall any such award be valid beyond the lifetime of the individual who now holds or hereafter may receive it’.

The Supreme Court clearly declared that it found no reasonable ground to accept such discrimination in section 900(4) by describing that any child should be treated equally as an individual and an illegitimate child should not be blamed for his/her origin.     In addition, the Supreme Court understood in a way that social structure, the roles of family, views and attitudes of ordinary people toward family life have been changing dramatically since 1947 when section 900 was implemented.  It also pointed to the gradual changes in legal practice of dealing with an illegitimate child for two decades referring to the facts that an illegitimate child was treated similar to a legitimate child in its description of the resident registration book and in the family registration book in 1994 and 2004 respectively.    Furthermore, the Supreme Court paid attention to the statements from the United Nations Human Rights Committee in 1993 and the United Nations Committee on the Rights of the Child in 2010 with respect to discrimination against an illegitimate child in Japanese legal system.   Prior to 2013 decision, the Supreme Court itself made a decree stating that in the case of obtaining Japanese nationality, the discriminatory provision of the Nationality Act against an acknowledged illegitimate child was unconstitutional (SD 4 June 2008 Minshu 62-6-1367*).    The discrimination against an illegitimate child still remains but it is expected that discriminatory treatment will gradually but steadily disappear in the future.  

As statistical information, the birth rate of illegitimate children gradually increased from 2001, 23,138 children in 2012 (2.2% of all births), and the number of acknowledgement was 14,943 in 2012 (Ministry of Justice).

<reference>
English translated texts are available at Home Page of the Supreme Court
1.2013 decree:
http://www.courts.go.jp/english/judgments/text/2013.09.04-2012.-Ku-.No..984.and.985-195441.html
2. 2008 decree:
http://www.courts.go.jp/english/judgments/text/2008.06.04-2006.-Gyo-Tsu-.No..135-111255.html
* Minshu: Saikosaibansho Minjihanreishu (Report on Civil Cases of the Supreme Court)

satoshi (dairake@gmail.com)

SATOSHI MINAMIKATA

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