2013.09.26

2012 (Gyo-Tsu) 399

Minshu Vol. 67, No. 6

Judgment concerning whether the part of the provisions of Article 49, paragraph (2), item (i) of the Family Register Act, which requires that a statement as to whether the child was born in or out of wedlock be made in a written notification to be submitted upon filing a notification of birth, is in violation of Article 14, paragraph (1) of the Constitution

Case to seek an order to make an entry in the residence certificate, etc.

Judgment of the First Petty Bench, dismissed

Tokyo High Court, Judgment of September 27, 2012

The part of the provisions of Article 49, paragraph (2), item (i) of the Family Register Act which requires that a statement as to whether the child was born in or out of wedlock be made in a written notification to be submitted upon filing a notification of birth, is not in violation of Article 14, paragraph (1) of the Constitution.
(There is a concurring opinion.)

Article 14, paragraph (1) of the Constitution, Article 49, paragraph (2), item (i) of the Family Register Act

Constitution
Article 14
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.
(1) Peers and peerage shall not be recognized.

Family Register Act
Article 49
(2) The following matters shall be stated in a written notification:
(i) the gender of the child, and whether the child was born in or out of wedlock.

The final appeal is dismissed.
The appellants of final appeal shall bear the cost of the final appeal.

I. Outline of the case
1. Appellant of final appeal X1 (hereinafter referred to as the "appellant father") and Appellant of final appeal X2 (hereinafter referred to as the "appellant mother"; the appellant father and the appellant mother may hereinafter be collectively referred to as the "appellant parents") have a child, Appellant of final appeal X3 (hereinafter referred to as the "appellant child"). The appellant father made a notification of the birth of the appellant child but the mayor of Setagaya Ward (hereinafter referred to as the "ward mayor") did not accept this notification because the appellant father did not state in the written notification whether the child was born in or out of wedlock, which is included in the matters to be stated as provided in Article 49, paragraph (2), item (i) of the Family Register Act, and as a result, no entry was made with respect to the appellant child in any family register or residence certificate. Accordingly, the appellants filed this action, alleging that the part of the provisions of said item which requires that a statement as to whether the child was born in or out of wedlock be made in the written notification (this part shall hereinafter be referred to as the "Provision") is in violation of Article 14, paragraph (1) of the Constitution. In this action, the appellants seek payment of solatium under Article 1, paragraph (1) of the State Redress Act, against the State (hereinafter referred to as the "appellee State") on the grounds of its illegal inaction in legislation to abolish the Provision, and against Setagaya Ward (hereinafter referred to as "appellee Setagaya Ward") on the grounds of its illegal inaction to make an entry with respect to the appellant child in the residence certificate. As the appellants have withdrawn their final appeal regarding other claims, the scope of subject under the review by this court is limited to their claims for solatium mentioned above.

2. The outline of the facts legally determined by the court of prior instance is as follows.
(1) A. Since 1999, the appellant parents have lived together as a couple in a de facto marriage in Setagaya Ward, Tokyo. In March 2005, the appellant child was born to the appellant parents. On February 24, 2005, before the child's birth, the appellant father had made a notification of acknowledgement of parentage of the appellant child as an unborn child to the mayor of Abiko City, Chiba Prefecture, where the registered domicile of the appellant mother is located, and this notification was accepted by the city mayor.
B. On April 11, 2005, the appellant father made a notification in his name of the birth of the appellant child (hereinafter referred to as the "Notification"). In the written notification submitted upon making the Notification, the appellant father left blank the column which was supposed to be filled in with a statement as to whether the child was born in or out of wedlock. The ward mayor requested the appellant father to correct this defect but was met with the father's refusal. The ward mayor then proposed to the appellant father that the mayor would accept the Notification after taking the internal step to affix to the written notification a sticky note stating the matter recognized by the mayor, but was met again with the father's refusal. In the end, the ward mayor did not accept the Notification.
C. On May 19, 2005, the appellant father filed a request with the ward mayor for an entry to be made with respect to the appellant child in the residence certificate. In response, the ward mayor refused to make such an entry on the grounds that the Notification had not been accepted.
D. Subsequently, with regard to the treatment of a notification of the birth of a child filed with a written notification which lacks a statement as to whether the child was born in or out of wedlock, a notice dated March 24, 2010, was issued from the Director of the Civil Affairs First Division of the Civil Affairs Bureau of the Ministry of Justice to the Directors of the Civil and Administrative Affairs Divisions of the Legal Affairs Bureaus and the Directors of the District Legal Affairs Bureaus (Notice No. 729 of 2010; hereinafter referred to as the "2010 Notice") to require that the addressees of this notice should provide information on the following procedures to the directors of branch offices and the municipal mayors under the jurisdiction of the respective Legal Affairs Bureaus and District Legal Affairs Bureaus: (i) where a person who makes a notification refuses to state in the written notification whether the child was born in or out of wedlock, the competent authorities should request the person to correct the written notification by clearly indicating in the "Others" column the surname that the child is to take and the family register that the child is to belong to; and (ii) if the person who makes the notification further refuses to make such correction but it is possible to recognize the correct matter to be stated by verifying, etc. the content of the written notification, attached documents and the family register, the competent authorities should accept the notification after clarifying the recognized matter in a sticky note affixed to or in a blank space contained in the written notification.
E. Even after the 2010 Notice was issued, the appellant mother, who was obliged to make a notification of the birth of the appellant child (Article 52, paragraph (2) of the Family Register Act), did not make a notification of the birth of the appellant child.
F. On March 8, 2011, the appellants filed this action.
After the final appeal was filed, the ward mayor made a requisition to the appellant mother under Article 44, paragraph (1) of the Family Register Act on November 22, 2012, to the effect that the mother should make a notification of the birth of the appellant child, and made the second requisition under paragraph (2) of said Article on December 7, 2012. However, the appellant mother did not make a notification of the birth of the appellant child within the periods prescribed by the respective requisitions. On December 25, in accordance with Article 24, paragraph (3) of said Act as applied mutatis mutandis pursuant to Article 44, paragraph (3) of said Act, the ward mayor gave notice to the mayor of Abiko City to the effect that the person obliged to make the notification of the birth of the appellant child had not made a notification. In response, the mayor of Abiko City made an entry ex officio with respect to the appellant child in the family register in accordance with Article 24, paragraph (2) of said Act as applied mutatis mutandis pursuant to Article 44, paragraph (3) of said Act. Accordingly, the mayor of Abiko City gave notice to the ward mayor under Article 9, paragraph (2) of the Basic Residence Register Act, and then on January 21, 2013, the ward mayor made an entry with respect to the appellant child in the residence certificate as provided in Article 12, paragraph (2), item (i) of the Order for Enforcement of the Basic Residence Register Act.
As these measures had been taken, the appellants withdrew the final appeal regarding some of the claims initially made in this action, such as the claim to seek an order to make an entry with respect to the appellant child in the residence certificate, as mentioned in 1. above.
(2) The Family Register Act provides for the matters to be stated in a written notification to be submitted upon making a notification of birth (Article 29 and Article 49, paragraph (2)). Although a notification which lacks a statement of any of these matters is deemed to be defective, such notification may be considered to be acceptable unless it lacks a statement of any matter considered particularly important (see Article 34, paragraph (2)). The 2010 Notice mentioned in (1) D. above was issued with a view to informing the competent authorities of the practical operations that they should perform, under these provisions of the Family Register Act, upon accepting a notification filed with a written notification that lacks a statement as to whether the child was born in or out of wedlock although it should be stated therein.
In addition, the Family Register Act provides that in cases where the necessary notification is not made despite the requisition made under Article 44, paragraphs (1) and (2) or where such requisition cannot be made, the municipal mayor may make an entry ex officio in the family register, with the permission of the head of the competent Legal Affairs Bureau or District Legal Affairs Bureau (Article 44, paragraph (3), Article 24, paragraph (2)). The entry made with respect to the appellant child in the family register by the mayor of Abiko City mentioned in (1) F. above was based on this provision.

II. Concerning the reasons for final appeal argued by the appeal counsel, FUJIOKA Tsuyoshi (excluding III-1, V, and VI)
1. Concerning the reason for appeal alleging that the Provision is in violation of Article 14, paragraph (1) of the Constitution
(1) The appeal counsel argues that the Provision, which requires that a statement as to whether the child was born in or outside wedlock should be made in a written notification to be submitted upon filing a notification of birth, enforces discrimination against a child born out of wedlock and therefore violates Article 14, paragraph (1) of the Constitution.
(2) Article 14, paragraph (1) of the Constitution provides for equality under the law, and this provision should be interpreted as prohibiting any discriminatory treatment. This is the case law established by the precedent rulings of this court (1962 (O) No. 1472, judgment of the Grand Bench of the Supreme Court of May 27, 1964, Minshu Vol. 18, No. 4, at 676, etc.)
A notification of birth is to be made to report the fact that a child was born. This notification does not generate any legal effect such as creating a new family relationship. The issues as to whether a child is to be treated as a child born in wedlock or child born out of wedlock, and what position in the family relationship the child is to be placed in if he/she is treated as a child born out of wedlock, are governed by the provisions of the Civil Code concerning the parent-child relationship. The Civil Code provides that a marriage shall take effect upon notification pursuant to the Family Registration Act, thus adopting the principle of legal marriage (Article 739, paragraph (1)), and on the premise of this provision, it provides for different rules in terms of the legal father-child relationship and other family relationships depending on whether the child's mother and father are in a marriage or not. More specifically, the Civil Code adopts the principle that the fact that a wife conceives a child during marriage naturally creates a presumption that the father of the child is her husband (Article 772), and it provides for matters relating to such child under this principle, such as that a child born in wedlock shall take the surname of his/her parents (Article 790, paragraph (1)). On the other hand, with regard to a child born out of wedlock, the Civil Code adopts the principle that the father-child relationship shall be created when the father acknowledges the child (Articles 779 and 787), and it provides for matters relating to such child under this principle, such as that a child born out of wedlock shall take the surname of his/her mother (Article 790, paragraph (2)). Meanwhile, the Family Register Act provides that a family register shall be created for each unit consisting of a husband and wife, and a child(ren) having the same surname as them (Article 6), and accordingly, it further provides, inter alia, that in principle, a child born in wedlock shall belong to the parents' family register (Article 18, paragraph (1)), while a child born out of wedlock shall belong to the mother's family register (paragraph (2) of said Article).
The rules provided under the Civil Code and the Family Register Act concerning the legal father-child relationship, etc. and the treatment of a child in the family register thus differ depending on whether the child's mother and father are in a marriage or not. Such difference in rules comes from the difference in terms of the family relationships created under the principle of legal marriage and the difference in terms of the handling of the family register based on the former. In consideration of these differences in terms of the family relationships and the handling of the family register and with a view to facilitating the administration of affairs by the municipal mayors who are in charge of administering affairs relating to the family register, the Provision only requires that a statement as to whether the child was born in or out of wedlock be made in a written notification to be submitted upon filing a notification of birth. A notification in which no statement is made on this matter is deemed to be a defective one which may be refused due to such lack of the statement, irrespective of whether the child subject to the notification is a child born in wedlock or child born out of wedlock. At the same time, as mentioned in I-2(2) above, it is possible for the authority concerned to accept such defective notification or make an entry ex officio based on it. In light of these points, it cannot be said that the Provision itself causes a difference in terms of the legal status of a child and of his/her mother and father between a child born in wedlock and a child born out of wedlock.
Furthermore, in light of the fact that the Family Register Act provides for stricter rules for the disclosure of a written notification than those for the disclosure of a family register (Article 48, paragraph (2), Article 10, and Article 10-2), it also cannot be said that when a statement as to whether the child was born in or out of wedlock is made in a written notification to be submitted upon making a notification of birth, this would lead to making the content of such statement known to third parties more easily.
The knowledge as to whether the child subject to the notification is a child born in wedlock or a child born out of wedlock can also be acquired by the municipal mayor by verifying, etc. the entry in the family register (see I-2 (1) D. (ii) above), and it might not therefore be said that it is essentially necessary in the administration of affairs by the municipal mayor to require the person who makes the notification to state in the written notification whether the child was born in or out of wedlock. Nevertheless, it is difficult to deny that such requirement at least facilitates said administration of affairs and therefore it cannot be judged to be completely unreasonable.
The appeal counsel argues that the use of the term "a child born out of wedlock" in the Provision in itself constitutes discriminatory treatment against a child born out of wedlock. However, the term "a child born out of wedlock" as used in the Civil Code and the Family Register Act is intended to refer to a child born to a man and woman who are not in a legal marriage. The appeal counsel's argument is nothing more than questioning the appropriateness of the expression of a term used in a law or regulation and therefore cannot be accepted.
For the reasons stated above, the Provision cannot be regarded as setting down discriminatory treatment against a child born out of wedlock as compared to a child born in wedlock and therefore it is not in violation of Article 14, paragraph (1) of the Constitution.
This reasoning is clear in light of the purport of the abovementioned judgment of the Grand Bench of the Supreme Court. We can affirm the holdings of the court of prior instance as stating to the same effect as this reasoning. We cannot accept the appeal counsel's arguments.

2. Concerning other reasons for final appeal
The appeal counsel further argues violation of the Constitution as well as deficiency and inconsistency in the reasons attached to the judgment in prior instance, but such arguments are in effect assertions of unappealable violation of laws and regulations or there is no premise to support the arguments, and none of these reasons for final appeal can be regarded as a reason for final appeal permissible under Article 312, paragraphs (1) and (2) of the Code of Civil Procedure.

Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices. There is a concurring opinion by Justice SAKURAI Ryuko.

The concurring opinion by Justice SAKURAI Ryuko is as follows.
I am in agreement with the court opinion that the Provision does not constitute discriminatory treatment against a child born out of wedlock and it therefore is not in violation of Article 14, paragraph (1) of the Constitution. As I consider that a separate review should be made with regard to the relevant system, I would like to give some comments on this point.
In this case, the notification of the birth of the appellant child had not been accepted due to the lack of a statement as to "whether the appellant child is a child born in or out of wedlock" in the written notification to be submitted upon making the notification, and as a result, the appellant child's name had not been entered in any family register for more than seven years since birth, leading to no residence certificate being prepared for the child.
Subsequently, in 2010, the Ministry of Justice issued a notice to the effect that even where a person who makes a notification of birth refuses to correct a defect in the written notification, if it is possible to recognize the correct matter by verifying the content of the written notification, attached documents, and the family register, the competent authorities should accept the notification after clarifying the recognized matter in a sticky note, etc. This is mentioned in the court opinion.
The Family Register Act requires that an entry be made in a family register promptly with respect to a person who has Japanese nationality but whose name is yet to be entered in any family register, and it is obvious that a person whose name is not entered in any family register would suffer various kinds of disadvantages. A child who does not belong to any family register due to a defective statement in a written notification of birth, which the child him/herself can do nothing about, would suffer various kinds of disadvantages and inconvenience because of such absence of the family register. Such a situation must be avoided by all means.
It may be understandable that requiring a statement as to whether the child is a child born in or out of wedlock to be made in a written notification of birth may facilitate the administration of affairs relating to the family register. However, as there are other alternative means to confirm this matter as suggested in the 2010 Notice, such a statement cannot be regarded as indispensable for the administration of affairs. Assuming so, in order to keep any child born out of wedlock from getting involved in the same situation as the child in this case, it is hoped that a necessary review of the existing system relating to the notification of birth including the provisions of the Family Register Act will be considered, such as by amending or abolishing the matters to be stated in the written notification concerning whether the child's mother and father are in a marriage or not.

Justice YOKOTA Tomoyuki
Justice SAKURAI Ryuko
Justice KANETSUKI Seishi
Justice SHIRAKI Yu
Justice YAMAURA Yoshiki