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1955 (O) 890

1961.04.05
1955 (O) 890
Minshu Vol.15, No.4, at 657
Judgment upon the case concerning the nationality of a Japanese woman from the homeland, who had married a Korean man, after the San Francisco Peace Treaty had taken force.
Claim for the Recognition of the Existence of Nationality
Judgment of the Grand Bench, dismissed
Tokyo High Court
A Japanese woman who married a Korean man and had the legal status of a Korean under Japanese Law lost Japanese nationality after the entering into force of the San Francisco Peace Treaty (there are supplementary and dissenting opinions).
The jokoku appeal shall be dismissed.
The cost of the jokoku appeal shall be borne by the jokoku appellant.
I. On the grounds item 1 and 2 of jokoku appeal by the representative for the jokoku appellant TK:

1. The jokoku appellant argues that the judgment of the original instance court is in breach of articles 10,11,12, and 13 of the Constitution and the Law on Nationality. Article 10 of the Constitution provides that the requirements for Japanese nationality are to be determined by law. However, the Law on Nationality which determines them do not provide for a change of nationality as the result of a change of territory. On the other hand, it is beyond doubt that a change of territory results in a change of nationality. Concerning these changes, there is no established rule of international law, and usually it is determined explicitly or tacitly by treaties on each occasion. Therefore, it is reasonable to understand that the Constitution allows treaties to provide for a change of nationality resulting from a change of territory. Thus, the argument that it is in breach of Article 10 of the Constitution is without grounds and the Law on Nationality is not applicable to the present case. Concerning articles 11, 12 and 13 of the Constitution, the loss of Japanese nationality by the jokoku appellant is a result of the provision of the Peace Treaty as explained below, and there is no breach of these provisions of the Constitution.
2. The Peace Treaty with Japan on Article 2 (a) provides that 'Japan recognizing the independence of Korea, renounces all right, title and claim to Korea, including the islands of Quelpart, Port Hamilton and Dagelet'. To put it simply, it provides that Japan recognises the independence of Korea and renounces sovereign rights to the territory which belongs to Korea. There is no doubt that this provision renounces the sovereign rights over the territory (territorial sovereignty) as well as the sovereignty over the people who belong to Korea (personal sovereignty). A state comprises people, territory and government, and even one of them lacking, the state cannot exist. The recognition of the independence of Korea means that Korea is recognised as an independent state and Korea is recognised to have people who belong to Korea, the territory and the government. Therefore, through the Peace Treaty, Japan is understood to have renounced sovereignty vis a vis all people who belong to Korea.
This means that in relation to those who belong to Korea, Japanese nationality would be lost. A person who belongs to a country has the nationality of that country and is subject to the sovereignty of that country. On the other hand, a person who has the nationality of a country is subject to its sovereignty. Therefore, the renunciation of sovereignty by Japan over the people who belong to Korea will cause those people to lose Japanese nationality.
3. It should be understood that 'people who belong to Korea' means people who obtained legal status as Koreans under Japanese law after the annexation of Korea by Japan. People who have legal status of Koreans are those to whom the Korean Civil Status Decree is applicable and those who are registered in the Korean Civil Status Register. Before the Annexation by Japan, there was a Law on Civil Status in Korea and those who had the nationality of Korea were registered in the Civil Status Register. After the annexation, in place of the Law on Civil Status, the Korean Civil Status Decree was enforced, and those who had been registered in the Civil Status Register were registered in the Korean Civil Status Register. In contrast, those who are Japanese by birth are those to whom the Law on Nationality is applicable and are registered in the Civil Status Register. In order to distinguish this from Korean Civil Status Register, this Register was sometimes called the Japanese (home land) Civil Status Register. Thus, the Japanese and Koreans not only had a clearly distinct civil status, but the applicable law was also different.
Those Japanese who joined a Korean ie (a traditional Japanese household) by marriage with a Korean or by adoption, by virtue of the Common Law Article 3, para.1 which states that 'a person who joined a family in a territory in accordance with its law shall leave the ie of another territory', was registered in the Korean Civil Status Register and at the same time, removed from the Japanese (home land) Civil Status Register. These people were treated as Koreans by law and the laws concerning Koreans were applied while laws concerning the Japanese were not applied. Thus, from a purely legal point of view, these people were treated in the same way as Koreans and they were simply Koreans. This is identical to the situation where a Japanese woman married a foreign person and obtained the same nationality as the husband. According to the Law on Nationality before the amendment, in such cases, the Japanese woman loses her Japanese nationality. For this reason, from a legal point of view, Japanese law is not applicable and foreign law is exclusively applied, and legally, she is a foreigner. In cases where a Japanese woman marries a Korean man, is registered in the Korean Civil Status Register and has been removed from the Japanese (homeland) Civil Status Register, it is the same, and legally, she is not a Japanese and cannot but be regarded as having become a Korean.
Under the occupation of Japan by the Allied Forces, those who had legal status of a Korean were distinguished by law from those who had legal status of a Japanese. The memorandum of the Supreme Command of the Allied Powers treated Koreans in the same way as foreigners, included Koreans in the category of 'non-Japanese', or included them in the term 'foreigners'. The Ordinance on the Registration of Foreigners issued on the basis of the above memorandum deemed, for the time being, Koreans to be foreigners and imposed restrictions on entry into the country and registration. In this context, Koreans meant those who had legal status of a Korean by law. It goes without saying that these included people who came to be registered in the Korean Civil Status Register by marriage or adoption. To these people, as mentioned above, legally, laws concerning Koreans are applied and they no different from Koreans, and in practice, were treated as 'non-Japanese' or 'foreigners' and were registered as foreigners.
Thus, those who had legal status of Koreans were clearly distinguished under Japanese law from those who had legal status of a Japanese. This distinction has been maintained consistently ever since the annexation of Korea by Japan and did not change under the Allied occupation. Under such a state of law, the Peace Treaty was concluded and Japan has recognised the independence of Korea, renounced the sovereignty over the people who belong to Korea and thus removed Japanese nationality of those people. Therefore, those who are to lose Japanese nationality should be understood as those who had legal status of a Korean national under Japanese law.
4. As has been lawfully established by the judgment of the original instance court, the jokoku appellant in the present case was a Japanese by birth, but on July 16, 1935, married with a Korean man, A, and registered. In this way, the jokoku appellant has legally obtained legal status of a Korean national and lost legal status of a Japanese national.
Under the Peace Treaty, Japan has recognised the independence of Korea and as a result, those who belong to Korea lost Japanese nationality. Those who belong to Korea are, as mentioned above, those who had legal status of a Korean national under Japanese law. The jokoku appellant in the present case had this legal status, and therefore, she should be regarded to have lost Japanese nationality under the Peace Treaty.
5. The jokoku appellant argued in the ground of the jokoku appeal item 1 that had it not been for the annexation of Korea by Japan, she would not have married the Korean man, A. However, from a legal point of view, the problem is whether in the case of her marriage with a Korean, she acquired legal status of a Korean national or not, and as a result, whether she lost Japanese nationality under the Peace Treaty or not. It has been lawfully established by the judgment of the original instance court that the jokoku appellant married a Korean A on July 16, 1935, and the conclusion of the judgment of the original instance court which ruled that the jokoku appellant loses the [lost] Japanese nationality based upon these facts is justifiable.

II. On the ground of appeal item 3:

The jokoku appellant argues that at the time the Peace Treaty took effect, she was in substance divorced and furthermore, the address was already fixed in Japan and therefore, she does not lose Japanese nationality. However, although the jokoku appellant was originally a Japanese, she has married a Korean and registered. Divorce does not take effect merely through the actual state of marriage and legally, the marriage continues regardless of the address of the jokoku appellant, and she has maintained legal status of a Korean national. In October 1952, the jokoku appellant obtained a divorce judgment, but this was after the Peace Treaty had taken effect, and did not change the situation whereby she had lost Japanese nationality under the Peace Treaty.

III. Based upon the above reasons, there are no grounds for the jokoku appellant to claim for recognition of the existence of Japanese nationality. If the jokoku appellant desires to obtain Japanese nationality, she should apply for naturalisation in accordance with the Law on Nationality, and through this procedure, nationality can be easily restored. The judgment of the original instance court which dismissed the claim of the jokoku appellant to recognise the existence of Japanese nationality is justifiable.
Therefore, in accordance with articles 401, 95, and 89 of the Code of Civil Procedure, the justices rule as the main text of judgment.
This judgment is based upon an unanimous opinion of the justices except for supplementary opinions by justices FUJITA Hachiro, IRIE Toshio, and OKUNO Kenichi, and a dissenting opinion by SHIMOIIZAKA Masuo.

The supplementary opinion of Justice FUJITA Hachiro is as follows:

The majority opinion is of the view that by virtue of Article 2 of the Peace Treaty, with the Treaty taking effect, all of those who, at that time, were registered in the Korean Civil Status Register by the Korean Decree on the Civil Status, (i.e. not only the original Koreans but also those who were originally Japanese but by marriage with a Korean or other reasons and by virtue of Article 3, para.1 of the Common Law, lost the civil status in the home land and were registered in the Korean Register), automatically lost Japanese nationality as persons with legal status of a Korean national as a result of the Peace Treaty at the time the Treaty took effect.
However, loss of nationality as a Japanese is a matter of Japanese domestic law (Article 10 of the Constitution) and cannot be regarded as a direct effect under international law of the Peace Treaty. Rather, it should be understood as a matter of the effect of the Peace Treaty under Japanese law. In such a case, how does the majority opinion explain the relationship between the domestic legal order at the time the Peace Treaty took effect, i.e. the Constitution which had already been in place for several years then, and the Civil Code which had been amended by the taking of effect of the Constitution and in accordance with the Constitution on the one hand, and the Peace Treaty on the other hand?
It is natural that the internal effect of an international treaty under national law cannot be interpreted in breach of the meaning of the Constitution. Through the taking of effect of the Constitution, the Civil Code was amended and the system of 'ie' was abolished. At the time the Peace Treaty took effect, the concept of 'joining the ie', and 'leaving the ie' as referred to in Article 3, para.1 of the Common Law had lost the basis for application. Through the amendment to the Civil Code, the Law on the Civil Status was also amended and the concept of the original civil status also changed significantly. The concept of the original civil status which had the meaning of determining the status of the people who belong to the basic component - an abstract and conceptual entity such as ie - was abolished, and instead, basic and normal forms of family such as spouses and parents and children were made the basic component of the civil status. This is a revolutionary reform of the civil status law and the previously existing concept of the original civil status which was used as a criterion for the acquisition and loss of legal status of a Korean national by the Common Law completely disappeared at this time. On the other hand, concerning nationality, a new Law on Nationality was enacted in May 1950 and the requirement of the previous Law on Nationality that the spouses should share the same nationality was abolished, since this was in line with the traditional family system and was not compatible with the ideas of the principles of respect for individuals, equality of spouses, and the freedom of the waiver of nationality, and in accordance with the present global trend, had adopted the principle of separate nationalities of spouses (see Art.8).
In the light of the meaning of those new domestic laws, is it not irrational, when interpreting the effect of the Peace Treaty under Japanese law, to acknowledge Article 3 of the Common Law and discuss the acquisition and loss of nationality at the time the Peace Treaty had taken effect?
Does not the majority opinion have any doubt that after the entering of force of the Constitution and the amendment of the Civil Code, and before the taking of effect of the Peace Treaty, a Japanese woman who married a Korean man should, by virtue of the Common Law, be regarded as having lost Japanese nationality through the Peace Treaty taking effect, since she has 'left the ie in the homeland' and had lost the original civil status in Japan? If this is so, should this not have to be seen as an interpretation extremely alien to the spirit of the Constitution? After the amended laws as a result of the new Constitution came into effect, the idea that the original Japanese civil status is lost since she had married a Korean and had left the Japanese ie cannot be supported in light of the new Civil Code, the new Law on Nationality, and the idea behind the new Law on Nationality. It should also be noted that the amendment to these laws originates from the Constitution.
Japan accepted the Potsdam Declaration in August 1945 and recognised the independence of Korea de facto. It is publicly known worldwide that Korea has made August 15 a national day of independence and since then has come to acquire the substance of an independent state. It goes without saying that at least Koreans who live in Korea have lost Japanese nationality since then (the majority opinion would be of the view that those Koreans who live in Korea did not lose Japanese nationality until the Peace Treaty came into force).
Article 2 of the Peace Treaty concluded in April 1952 explicitly recognises the independence of Korea legally, but this should be understood as a legal ratification of the already made de facto recognition. Therefore, the time for the loss of Japanese nationality by the Koreans based upon the independence of Korea has to be the time of the acceptance of Potsdam Declaration by Japan by which Japan de facto recognised the independence of Korea. This was before the entering into force of the Japanese Constitution and the legal order under the Common Law was firmly in place. Only when this moment is seen to be decisive in determining the loss of Japanese nationality, can the majority opinion be fully supported. The judgment of the original instance court has established that the jokoku appellant in the present case married a Korean before this, joined a Korean ie and lost the original Japanese civil status, and therefore, the jokoku appellant lost Japanese nationality at the time of the acceptance of Potsdam Declaration.

The supplementary opinion of Justice Toshiro IRIE is as follows:

I. I concur with the majority opinion that the arguments of the jokoku appellant concerning the breach of the Constitution and the Law on Nationality are groundless and that the loss of Japanese nationality by the jokoku appellant is based upon the provision of the Peace Treaty of Japan. Article 2 (a) of the above treaty which serves as a basis of the loss of Japanese nationality by the jokoku appellant provides that 'Japan recognizing the independence of Korea, renounces all right, title and claim to Korea'. There is no doubt that it renounces territorial sovereignty over Korea, but it is not necessarily clear to what extent personal sovereignty has been renounced. The scope of people who belong to Korea in relation to whom Japan's sovereignty has been renounced has to be determined by interpretation by considering the process of incorporating this provision of the Treaty and in accordance with the spirit of this provision.
II. First of all, I think that the above provision which recognises the independence of Korea is primarily intended to remove the state of affairs which emerged by the Annexation Treaty of Korea concluded between Japan and the former State of Korea in 1907 and, restore to the State of Korea which became independent after the War, the territorial and personal sovereignty which the former State of Korea would have had, had there not been annexation and realise the legal state of affairs which should be acknowledged to have existed had there not been annexation (restoration of the status quo ante). Upon this presupposition, if we consider the scope of people who belong to Korea in relation to whom Japan's sovereignty has been renounced by the recognition of the independence of Korea, there is no problem as an interpretation of the above-mentioned Peace Treaty that Koreans from before the Annexation or their descendants whose status has not particularly changed after the Annexation (original Koreans) are those who should belong to Korea and that Japan has renounced its personal sovereignty over these people. However, in relation to people other than those, such as the jokoku appellant who is a Japanese woman by birth and married after the Annexation a man who is originally a Korean and registered, and others who are listed in the notice of the Director of the Civil Law Department of April 19, 1952, No.1, 'Matters related to Korean and Taiwan' (2) and (3), the fate of their Japanese nationality should be determined on a case by case basis by taking into consideration what his or her nationality would have been by law, had not there been annexation, and only to the extent that it coincides with this nationality. There may be a view that the provision of the above Treaty does not cover the loss of Japanese nationality by those other than original Koreans and for such people, Japanese law at the time of the independence of Korea should be exclusively applied, but I think the provision of the above Treaty is, as mentioned above, intended to restore the status quo ante, and within this framework, also provides for the loss of Japanese nationality by those other than the Koreans by birth.
If this is applied to the present case, according to the law of the former state of Korea, a foreign woman who married a Korean man from the former State of Korea was to acquire the nationality of the State of Korea, and on the other hand, according to Article 18 of the former Law on Nationality of Japan (Law No.66, 1899) applicable at that time, if a Japanese woman married a foreigner, she would lose Japanese nationality. Thus, if there was no Annexation, as explained above, it is evident that the jokoku appellant, who is a Japanese by birth and married a Korean by birth would have acquired Korean nationality and have lost Japanese nationality. Had there not been Annexation, this would have been established as a fait accompli at the time of jokoku appellant's marriage, and the provision of the above Treaty focuses on such a state of affairs and is intended to realise this at the time of the independence of the Korean State. This is not affected by the fact that later, the Constitution took effect in Japan, the Law on Nationality was amended and the principle of common nationality of spouses was abolished. This is because the interpretation of the provision of the above Treaty is not in contravention of the Constitution at all (it is incomprehensible that the principle of common nationality of spouses is itself against the Constitution. In fact, this principle was acknowledged by articles 18, 21 and others of the former Law on Nationality after the Constitution took effect and until 1950 when the new Law on Nationality (Law No.145, 1950) took effect). Furthermore, the loss of Japanese nationality in the present case is based upon the provision of the above Treaty and not upon the Law on Nationality. As explained at the beginning, it has nothing to do with the taking of effect of the new Law on Nationality. If this is the case, under the interpretation of the provision of the above Treaty, there is no alternative but to conclude that the jokoku appellant has lost Japanese nationality through the independence of the Korean State.
This is in line with the reasons of the judgment of the original instance court, and as the reason of the present judgment, it is sufficient.

III. The majority opinion ruled that 'in interpreting the provision of the above Peace Treaty, it is reasonable to understand that those who are to lose Japanese nationality should be understood as those who had the status as a Korean national under Japanese law' and explains in detail the legal system concerning those who are regarded as Koreans under Japanese law after the Annexation. However, the distinction under the Japanese legal system after the Annexation between those who had the status of a Korean and others was a distinction among Japanese nationals who were Koreans by birth and became Japanese by Annexation and those who were Japanese by birth. This distinction could have been established almost freely within an appropriate and fair limit in accordance with the requirement of the legislative policy. There may be a view that the relationship between Korea and the Japanese homeland under Japanese law after the Annexation is like a quasi-private international law relation, and the fact that the Korean Civil Status Register was acknowledged as independent from the register in the Japanese homeland indicates that the Korean Civil Status Register is the same in substance as the civil status register of the former State of Korea, and therefore, all of those to whom the Decree on the Korean Civil Status Register was applicable and who were registered in the Korean Register lost Japanese nationality upon the independence of the Korean state. In the end, the majority opinion seems to take this view, but in light of the legislative policy of Japan vis a vis Korea, I cannot immediately agree to the view that because Japanese law after the Annexation acknowledged the independence of the Korean Civil Status Register, it is the same in substance as the Register of the former Korean State. Therefore, even if a Japanese who, by marriage or adoption with a Korean joined a Korean ie is registered in the Korean Civil Status Register, removed from the Japanese homeland Register under Japanese law by Virtue of Article 3, para.1 of the Common Law and treated as a Korean by law, if the law of the former Korean State and the former Law on Nationality at the time of the marriage had not acknowledged the above-mentioned principle of common nationality for spouses and if a Japanese woman became the wife of a foreign national, she still would not lose Japanese nationality, then, also through the interpretation of the provision of the above Treaty, the jokoku appellant cannot be regarded as a person who lost Japanese nationality through the independence of the Korean state, since had there not been an annexation, this Japanese woman would not have lost Japanese nationality. Thus, in the present case, the jokoku appellant did not lose Japanese nationality merely because she had the status as a Korean under Japanese law after the Annexation, but has lost it only because there existed the law of the former State of Korea as mentioned above and Article 18 of the former Law on Nationality of Japan at that time, as the interpretation of the provision of the above Treaty, the jokoku appellant lost Japanese nationality with the independence of the Korean State. Incidentally, my view is that the loss of nationality in the present case took effect at the time the above Treaty came into force.
In this sense, I concur with the majority opinion.

The supplementary opinion of Justice OKUNO Takeo is as follows:

The majority opinion is of the view that by virtue of Article 2 of the Peace Treaty, simultaneously with the Treaty taking effect, the jokoku appellant lost Japanese nationality.
Article 2 (a) of the Peace Treaty provides that 'Japan recognizing the independence of Korea, renounces all right, title and claim to Korea, including the islands of Quelpart, Port Hamilton and Dagelet'. It can be acknowledged that this means the recognition of the independence of Korea, and the renunciation of territorial sovereignty as well as the sovereignty over Korean people, and that concerning nationality, it is meant to cause the loss of Japanese nationality for those Koreans by birth and their descendants who lost Korean nationality by the Annexation by Japan, but it is not possible to go beyond this and acknowledge that it includes the requirement that a woman who is Japanese by birth and married a Korean should lose Japanese nationality. Furthermore, under international law or customary international law, the principle of common nationality for spouses has not been established. If this is the case, the problem of nationality of a woman who married a Korean has to be determined by Japanese law. The Japanese Law on Nationality which was in force at the time the Peace Treaty took effect explicitly adopts the principle of separate nationality of the spouses. A Japanese woman who married a foreigner does not automatically lose Japanese nationality, unless she applies for the waiver of nationality. Therefore, even if the husband acquires Korean nationality by the taking of effect of the Peace Treaty, the wife - jokoku appellant does not automatically lose Japanese nationality by this. Thus, neither by Article 2 of the Peace Treaty, international law, nor the Law on Nationality, can it be said as the majority opinion maintains that a Japanese woman who married a Korean man automatically loses Japanese nationality with the taking of effect of the Peace Treaty. The majority opinion is of the view that regarding a Japanese woman who married a Korean man joins the ie of the husband and is registered in the Korean Civil Status Register by virtue of Article 3 of the Common Law, 'legally, she should be regarded as nothing else than a Korean national'. However, even if one follows the majority opinion, she still had Japanese nationality until the Peace Treaty took effect, and the mere fact that she had been formally transferred from the homeland Civil Status Register to the Korean Register does not serve as a ground for the loss of Japanese nationality, Particularly, under the new Constitution, the system of ie has been abolished, and it is non sequiter if Japanese nationality which is the basis of a Japanese national is deprived merely because under the Common Law and the Law on Nationality, she was treated differently from the people in the homeland. In this sense, I cannot agree with the majority opinion which maintains that the jokoku appellant lost Japanese nationality at the time the Peace Treaty took effect.
In my view, Japan has accepted the Potsdam Declaration which recognises the independence of Korea, and Japan has recognised the independence of Korea by accepting the Declaration. Admittedly, Chapter 2, Article 2(a) of the Peace Treaty provides that 'Japan recognises the independence of Korea...', but Japan had already recognised the independence of Korea by accepting the Potsdam Declaration and I think the Peace Treaty merely confirmed this. Therefore, without referring to other legal relations, at least in relation to the problem of nationality, it should be understood that the husband of the jokoku appellant acquired foreign nationality and lost Japanese nationality when Japan accepted the Potsdam Declaration. Article 18 of the Law on Nationality of Japan applicable at that time provided for the principle of common nationality of spouses and if a Japanese national married a foreigner, she would lose Japanese nationality, and therefore, the jokoku appellant who was a wife of a foreigner had already at that time lost Japanese nationality. If this is the case, even if the jokoku appellant did not live with the husband while she was in Korea and later returned to Japan and then divorced him, this does not automatically restore her Japanese nationality, and at present, she does not have Japanese nationality. I concur with the conclusion of the majority opinion that the jokoku appellant does not have Japanese nationality now, but differ concerning the time and the ground of the loss of Japanese nationality by the jokoku appellant.

The dissenting opinion of Justice SHIMOIIZAKA Yoshio is as follows:

The majority opinion can be summarised as follows: (1) the fact that Japan, by virtue of Article 2 of the Peace Treaty, renounced sovereignty over Korea directly means that Japan has also renounced sovereignty over the people who belong to Korea, and that this means that this causes the loss of Japanese nationality by those people, (2) the above-mentioned people who belong to Korea should be understood as those who, under Japanese law, have legal status of Korean nationals, and this includes not only those who had originally been registered in the Korean Civil Status Register, but Japanese women who married a Korean and by the application of the Common Law, registered in the Korean Civil Status Register, and as a result, were removed from the Civil Status Register of the homeland, (3) it has been established by the judgment of the original instance court that the jokoku appellant is a Japanese by birth, but married A, who is a Korean, on July 16, 1935 and was registered, and therefore, based upon the above, has lost Japanese nationality.
Thus, the majority opinion approaches the present case from a purely legalistic point of view and attempts to handle the case with the Peace Treaty and Japanese domestic law only. However, this approach is not without its doubts. For example, (1) there has been no treaty, agreement, or even negotiation between Korea and Japan concerning the acquisition and loss of Japanese nationality, (2) the above-mentioned A is a north Korean and the jokoku appellant is the wife of a North Korean, but the 'Peoples' Republic of North Korea' has not been recognised by Japan and there is no diplomatic relationship between them. Is it possible and appropriate at such a stage to solve the present case with merely a general doctrine of law as the majority opinion has? I have doubts about this (the majority opinion has not examined these points), but in any case, the majority opinion may be agreeable as a legal theory on the loss of Japanese nationality by a Japanese woman who was the wife of a Korean under normal circumstances. However, the jokoku appellant is not asking for such a theory in the present case. In her view, her case is extraordinary as explained, and therefore, she is asking that such circumstances be sufficiently taken into account and that it be acknowledged that she is a Japanese national as an exception to the general theory of law. Then what are the extraordinary circumstances? As can be seen from the record of the case, the jokoku appellant claims as follows: (1) the jokoku appellant is a Japanese born on February 4, 1915 as the eldest daughter of a Japanese father C and a Japanese mother B. The mother came to use the family name D, and she also used this family name. On July 16, 1935, she married A who was originally registered in Korea and was registered in the same register as A; (2) after the marriage, she lived with A in Tokyo, but moved to Seoul in November 1941. Soon A developed a relationship with a Korean woman and disappeared in September 1942, claiming that he was heading for North China. Thus, A abandoned the jokoku appellant in bad faith; (3) therefore, the jokoku appellant returned to Tokyo in February 1943, lived in Itabashi and worked as a printer, but was advised by the parents of A to evacuate Tokyo and go to Korea in June 1945 and she returned to Seoul. However, SS continued his relationship with his mistress and therefore, the jokoku appellant decided to return to Tokyo. But this was towards the end of the War, and her wishes could not easily be realised. When the War ended, she was living with the father of S in North Korea, but could not return to Japan, and not until December 1950, did she reach Pousan, where she was interned in the detention centre for the Japanese, and she finally returned to Japan around January 1951; (4) the jokoku appellant brought an action for divorce to the Tokyo District Court (Tokyo District Court, Claim for Divorce 1952 (ta) No.136) and a judgment of divorce was rendered on October 21, 1952, which came into effect on November 5 of the same year; (5) therefore, the jokoku appellant submitted a notification of divorce to the mayor of the Chuo Ward of Tokyo on November 14 of the same year based upon the taking of effect of the above judgment. However, the mayor of the ward refused to accept the notification in accordance with the circular of the Director of the Civil Law Division of the Justice Department of April 19, 1952 on the ground that even though jokoku appellant was a Japanese by birth, those who had been removed from the homeland Civil Status Register due to marriage or adoption with a Korean before the taking of effect of the Peace Treaty have lost Japanese nationality through the taking of effect of the Peace Treaty.
My view is that under such circumstances as the jokoku appellant claims, this is a case which is too extraordinary and exceptional to be handled simply by general and pure legal doctrines as adopted by the majority opinion. In handling such cases, an important task of the court is to examine the circumstances in detail and make efforts to find a specific and equitable solution. It goes without saying that law cannot grasp every aspects of peoples' life. The law, so to speak, merely draws a thick line. We know by experience that there are extraordinary and exceptional cases which cannot be regulated by this thick line, and if in such cases, this thick line is still applied, there may be undesirable outcome. This is the subtlety of the application of law which is left to no one else but judges. The original instance court never gave a thought as to whether the present case was such an extraordinary and exceptional case or not and dismissed the claim of the jokoku appellant merely on the basis of legal doctrines. I do not hesitate to say that the original instance court has completely forgotten the subtlety of the interpretation of law and is defective, since it totally failed to respond to important claims of the party. I regret to say that the majority opinion is not immune from such criticism either. If we believe what the jokoku appellant says, she has been wandering around Japan, South and North Korea for several years as a result of the defeat of Japan in the past War. She is a Japanese by birth who at a long end arrived back to homeland Japan and as an undisputedly natural desire, she insists on the nationality of her fatherland. Although she was registered as a Korean, there was no substance in her status as a wife at the time the Peace Treaty took effect. Why does the court hesitate to extend assistance to this compatriot? The argument of the majority opinion that naturalisation is easy is not what the jokoku appellant had asked for, and is out of the question as a legal solution to the problem which is at the core of the claim of the jokoku appellant.
To summarise, my view is that the judgment of the original instance court has failures of insufficiency of examination and lack of reasons since it failed to take into consideration the above-mentioned extraordinary and exceptional circumstances and did not even refer to them, and therefore, the jokoku appeal is with ground and the judgment of the original instance court should be quashed and reversed on these grounds.
Thus, I cannot agree to the majority opinion.
JusticeYOKOTA Kisaburo
JusticeSHIMA Tamotsu
JusticeSAITO Yuusuke
JusticeFUJITA Hachiro
JusticeKAWAMURA Matasuke
JusticeIRIE Toshiro
JusticeIKEDA Katsushi
JusticeKAWAMURA Daisuke
JusticeSHIMOIIZAKA Yoshio
JusticeOKUNO Kenichi
JusticeTAKAHASHI Kiyoshi
JusticeTAKAGI Jyohichi
JusticeSIHIZAKA Shuichi
(*Translated by Sir Ernest Satow Chair of Japanese Law, University of London)