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2016 (Ju) 1255

2017.01.31
2016 (Ju) 1255
Minshu Vol.71, No.1
Judgment concerning a case in which an adoption was made only for the purpose of saving inheritance tax, and a case of “there is no agreement to the adoption between the parties” as stipulated under Article 802, item (i) of the Civil Code.
Case of affirmation of nullity of adoption
Judgment of the Third Petty Bench, quashed and decided by the Supreme Court
Tokyo High Court, Judgment of February 3, 2016
If an adoption is implemented only for the purpose of saving inheritance tax, it cannot simply be recognized as being a case of “there is no agreement to the adoption between the parties” as stipulated under Article 802, item (i) of the Civil Code.
Article 802, item (i) of the Civil Code



Civil Code

Article 802 Adoption shall be void only on the following grounds:

(i) if there is no agreement to the adoption between the parties, as a result of mistaken identity or otherwise;
The judgment of the prior instance is quashed.

The appeal to the court of second instance by the appellees of final appeal is dismissed.

The costs of the appeal to the court of second instance and final appeal should be borne by the appellees of final appeal.
Regarding reason No. 4 in the reason for the petition for acceptance of final appeal submitted by NOHARA Kaoru, the counsel for the appellant:



1 The factual situation and other matters found lawfully by the decision of the prior court were as follows:



(1) Appellee X1 is the first daughter of A, who is deceased, and Appellee X2 is the second daughter of A.

The appellant was born as the first son of B, who is the first son of A, and C, B’s wife, in XXX 2011.

A’s wife died in March 2012.



(2) In April 2012, A received an explanation from a tax accountant and others who visited A’s home together with B, C and the appellant that if A were to adopt the appellant as his child, he could save the inheritance tax because the basic deduction from the inheritance would increase, and because of other reasons.

Subsequently, a document relating to notification of adoption was created and signed, with their seals affixed, by B and C as the persons with parental authority for the appellant who would be adopted by A, A as the person who would become a parent by adoption, and a brother of A and his wife as witnesses; and the executed document of notification was submitted to the director of Setagaya Ward on XXXX, 2012.



2. In this disputed case, the appellees disputed against the appellant that the adoption in question lacked the agreement to the adoption and demanded confirmation of its nullity by the court.



3. The decision of the prior instance recognized that the adoption under this case was made only for the purpose of saving inheritance tax and upheld the claim of the appellees that the adoption under this case had “no agreement to the adoption between the parties” as stipulated under Article 802, item (i) of the Civil Code.



4. However, the decision of the prior instance regarding the interpretation of Article 802, item (i) of the Civil Code described above cannot be accepted for the following reasons:

An adoption is an act creating a legitimate parent-child relationship, by which the adopted child becomes an inheritor of the adoptive parent. On the other hand, the tax saving effect of the adoption may arise from the addition of an inheritor, pursuant to the provisions in the Inheritance Tax Act, such as the provision stipulating that the amount of basic deduction from the inheritance is determined based on the number of inheritors. Adopting a child for the purpose of saving inheritance tax is an adoption with the clear motivation of obtaining a tax saving effect, and thus, the motivation for saving the inheritance tax can co-exist with the agreement to an adoption. Therefore, if an adoption is implemented only for the purpose of saving inheritance tax, it cannot simply be recognized as being a case of “there is no agreement to the adoption between the parties” as stipulated under Article 802, item (i) of the Civil Code.

In the factual situation stated above, no context existed suggesting that the parties did not agree to implement the adoption under this case; thus, it cannot be recognized as a case with “no agreement to the adoption between the parties.”



5. As described above, the decision of the prior instance that upheld the claim of the appellees was a violation of law that obviously affected the judgment. The arguments have reasons and the judgment of the prior instance should inevitably be quashed. As explained above, the claim of the appellees had no reasons and the judgment of the first instance that dismissed their claim was justifiable. Thus, the appeal to the court of second instance by the appellees of final appeal should be dismissed.

Accordingly, the judgment is unanimously rendered as described in the main text.
Justice KIUCHI Michiyoshi

Justice OKABE Kiyoko

Justice OTANI Takehiko

Justice OHASHI Masaharu

Justice YAMASAKI Toshimitsu
(This translation is provisional and subject to revision.)