2014.07.17

2012 (Ju) 1402

Minshu Vol. 68, No.6

Judgment concerning whether or not it is permissible to file an action for a declaratory judgment on the nonexistence of a parent-child relationship if, inter alia, it is clear from scientific evidence that there is no biological father-child relationship between the husband and the child who is presumed to be a child born in wedlock under Article 772 of the Civil Code

Case to seek a declaratory judgment on the nonexistence of a parent-child relationship

Judgment of the First Petty Bench, quashed and decided by the Supreme Court

Sapporo High Court, Judgment of March 29, 2012

Even if it is clear from scientific evidence that there is no biological father-child relationship between a husband and a child who is presumed to be a child born in wedlock under Article 772 of the Civil Code, and the husband and the wife have already divorced and started to live separately and the child is presently taken care of by the wife, who has parental authority, the existence of the father-child relationship cannot be challenged by filing an action for a declaratory judgment on the nonexistence of a parent-child relationship.
(There are concurring opinions and dissenting opinions.)

Articles 772 and 775 of the Civil Code, Article 2, item (ii) of the Personal Status Litigation Act

Civil Code
(Presumption of Child in Wedlock)
Article 772　
(1)　A child conceived by a wife during marriage shall be presumed to be a child of her husband.
(2)　A child born after 200 days from the formation of marriage or within 300 days of the day of the dissolution or rescission of marriage shall be presumed to have been conceived during marriage.

(Action to Rebut Presumption of Legitimacy)
Article 775　
The father's right to rebut the presumption of child in wedlock under Article 774 shall be exercised by an action of denial of child in wedlock against the child or a mother who has parental authority. If there is no mother who has parental authority, the family court shall appoint a special representative.

Personal Status Litigation Act
(Definition)
Article 2　
The term "personal status litigation" as used in this Act means litigation related to the following actions and other actions seeking the formation, or a declaration of the existence, of family relationships (hereinafter referred to as "actions concerning personal status"):
(ii)　actions to rebut the presumption of a child in wedlock, actions seeking filiation, actions seeking the invalidation or revocation of an acknowledgment of parentage, actions seeking a determination of paternity pursuant to the provisions of Article 773 of the Civil Code (Act No. 89 of 1896), and actions seeking a declaratory judgment on the existence of a natural parent-child relationship;

The judgment in prior instance is quashed, and the judgment in first instance is revoked.
This action is dismissed without prejudice.
The appellee of final appeal shall bear the total court costs.

Concerning the reasons for petition for acceptance of final appeal argued by the appeal counsel, KOBAYASHI Fumito
1. This is an action for a declaratory judgment on the nonexistence of a parent-child relationship, which is filed against the appellant of final appeal by the appellee of final appeal who is indicated in the family register as a child of the appellant.

2. The outline of the facts found from the case record is as follows.
(1) The appellant and X made a notification of marriage in 1999.
(2) X started dating Y from around 2008 and had a sexual relationship with him. However, the appellant and X continued to live together and they maintained the substance of their marital relationship.
(3) In 2009, X became aware that she was pregnant, but as she thought that the child was hers and Y’s, she did not tell the appellant about her pregnancy.
In the same year, X went to the hospital saying nothing to the appellant, and delivered the appellee in the same month.
(4) In 2009, the appellant found X in the hospital.
When the appellant asked X who the appellee's father was, X answered that it was a man with whom she had met only a few times.
In the same month, the appellant made a notification of birth stating that the appellee was the first daughter of the appellant and X, and after that, he took care of and raised the appellee as his own child.
(5) In 2010, the appellant and X divorced by agreement, designating X as the person who was to exercise parental authority over the appellee.
At present, X and the appellee live together with Y.
(6) In June 2011, X filed this action in the capacity of the statutory agent of the appellee.
(7) According to the results of the DNA test that the persons on the appellee's side conducted voluntarily, the probability that Y is the biological father of the appellee is 99.999998%.

3. The court of prior instance, holding as follows, affirmed this action to be lawful and upheld the appellee's claim.
It is inappropriate to preclude the presumption of legitimacy only when it is obvious from appearance that there is no possibility that a wife conceived her husband’s child. It is construed that the Civil Code strictly restricts a mother who is in a marital relationship from challenging the father-child relationship with regard to the child she delivered, probably for the purpose of protecting the privacy and peace at home and preventing undue harm to the interest of the child who should be raised in a peaceful home. Therefore, the presumption of legitimacy should be precluded if there are special circumstances that are not prejudicial to this purpose and the nonexistence of a biological parent-child relationship is objectively clear. In this case, it has been objectively and clearly proved by scientific evidence that there is no biological parent-child relationship between the appellant and the appellee, and the appellant and X have already divorced and started to live separately and the appellee is presently taken care of by X, who has the parental authority. In light of these circumstances, it is appropriate to construe in this case that the presumption of legitimacy is precluded and this action should be judged to be lawful.

4. However, we cannot affirm the holdings of the court of prior instance mentioned above, on the following grounds.
In order to rebut the presumption of legitimacy with regard to a child who is presumed to be a child born in wedlock under Article 772 of the Civil Code, an action to rebut the presumption of legitimacy must be filed by a husband, and such action must be filed within one year. These rules can be considered to be reasonable from the perspective of preserving the legal stability of the family relationship (see 1979 (O) No. 1331, judgment of the First Petty Bench of the Supreme Court of March 27, 1980, Saibanshu Minji No. 129, at 353; 1996 (O) No. 380, judgment of the Third Petty Bench of the Supreme Court of March 14, 2000, Saibanshu Minji No. 197, at 375). Even if it is clear from scientific evidence that there is no biological father-child relationship between a husband and a child, and the husband and the wife have already divorced and started to live separately and the child is presently taken care of by the wife, who has parental authority, the existence of these circumstances does not necessarily deny the necessity to preserve the legal stability of the child's status, and therefore it is appropriate to consider that the existence of the abovementioned circumstances does not preclude the presumption of legitimacy under said Article, and the existence of the father-child relationship cannot be challenged by filing an action for a declaratory judgment on the nonexistence of a parent-child relationship. This reasoning could lead to the situation in which the legal father-child relationship is inconsistent with the biological father-child relationship, but the provisions of said Article and Articles 774 through 778 of the Civil Code can be understood as even permitting such inconsistency to take place.
Having said that, with regard to a child born to a wife during the period prescribed in Article 772, paragraph (2) of the Civil Code, if it is obvious that the husband and the wife have had no opportunity to have any sexual relationship when the wife is supposed to have conceived the child because the husband and the wife had already de facto divorced and no longer maintained the substance of their marital relationship or they were living away from each other, said child can be considered to be a child born in wedlock who is in effect ineligible for the presumption under said Article. In that case, it is appropriate to construe that notwithstanding the provisions of Article 774 and the following of said Code, the father-child relationship between the husband and the child can be challenged by filing an action for a declaratory judgment on the nonexistence of the parent-child relationship (see 1968 (O) No. 1184, judgment of the First Petty Bench of the Supreme Court of May 29, 1969, Minshu Vol. 23, No. 6, at 1064; 1995 (O) No. 2178, judgment of the Second Petty Bench of the Supreme Court of August 31, 1998, Saibanshu Minji No. 189, at 497; the abovementioned judgment of the Third Petty Bench of the Supreme Court of March 14, 2000). However, in the present case, we cannot find that there were such circumstances as mentioned above when X conceived the appellee, nor can we find any other circumstances due to which this action should be judged to be lawful.

5. For the reasons stated above, we have to conclude that this action is unlawful, and the holdings of the court of prior instance that are contrary to this involve violation of laws and regulations that apparently affects the judgment. The appeal counsel's arguments are well-grounded, and the judgment in prior instance should inevitably be quashed. According to the explanation given above, the judgment in first instance should be revoked and this action should be dismissed without prejudice.

Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices, except that there are dissenting opinions by Justice KANETSUKI Seishi and by Justice SHIRAKI Yu. There are also concurring opinions by Justice SAKURAI Ryuko and by Justice YAMAURA Yoshiki.

The concurring opinion by Justice SAKURAI Ryuko is as follows.
1. In this case, what is called into question is whether or not the scope of cases to which the presumption of legitimacy under Article 772 applies should be reviewed along with changes in the situation in society, that is, the advancement of DNA testing technology has made it possible to identify a biological father-child relationship scientifically and objectively. While I am in agreement with the majority opinion, I would like to give some comments on this point.

2. The provisions concerning the presumption of legitimacy under the current Civil Code are basically the same as those under the former Civil Code that had been put into effect in 1898. A child conceived by a wife during marriage is presumed to be a child of her husband (Article 772, paragraph (1) of the Civil Code). A husband may not rebut the presumption that a child is his child born in wedlock other than by an action to rebut the presumption of legitimacy (Article 775 of said Code), and such action must be filed within one year from the time the husband comes to know of the child’s birth (Article 777 of said Code). Along with these provisions concerning the presumption of legitimacy, the Civil Code also provides for the period during which the wife’s remarriage is prohibited in order to avoid the situation in which more than one man would be presumed to be the father of her child (Article 733 of the Civil Code), and provides that an action may be filed with the court to determine the paternity of a child (Article 773 of said Code).
When the former Civil Code was enacted, even blood typing was not generally known, let alone DNA testing, and it was impossible to identify a biological father-child relationship scientifically or objectively. Therefore, the set of provisions concerning the presumption of legitimacy mentioned above can be considered to have been established for the sake of determining a legal father-child relationship promptly while keeping the family circumstances private, regarding the situation of that time as a given.
Meanwhile, the subsequent judicial precedents of this court, as cited in the majority opinion, have come to make exceptions to the presumption of legitimacy by interpreting the provisions on the presumption of legitimacy under the Civil Code so that the presumption of legitimacy would be precluded if it is obvious that the husband and the wife had no opportunity to have any sexual relationship when the wife is supposed to have conceived the child because the husband and the wife had already de facto divorced and no longer maintained the substance of their marital relationship or they were living away from each other. I would say that this court has thus provided a balance.

3. The advancement of DNA testing technology in recent years has been so remarkable that it is now possible to affirm or deny a biological parent-child relationship at almost 100-percent probability, at a low cost and by a minimally invasive method. This is a fact that is publicly known.
How we should consider the scope of applicability of Article 772 of the Civil Code in such a situation is being questioned. My conclusion is that the function of the presumption of legitimacy, i.e. determining a father-child relationship promptly and thereby securing the child’s interest, is still important at the present moment, and that it is of significance to some extent to maintain a father-child relationship as a legal one even when the father and the child are not related by blood.

4. In consideration of the advancement of DNA testing technology, the problem that the dissenting opinions point out is of course fully understandable, and I also feel some doubt about whether it is appropriate to consider that when a child was conceived by a wife during marriage, a father-child relationship cannot be reversed by any means other than an action to rebut the presumption of legitimacy in any cases except in those exceptional cases suggested by this court in its judicial precedents mentioned above. In particular, I strongly doubt the appropriateness of this view, given the fact that even when a child, after growing up, wishes to know his/her own origin at his/her own choice, or wishes to have a legal relationship with his/her biological father, there is no means for the child to achieve this.
It may be possible to adopt a stance that places emphasis on a biological parent-child relationship which can be identified with certainty, but if we are to adopt this stance, the consequence would go far away from the literal meaning of Article 772 of the Civil Code, and moreover, we would be faced with the question of how we could adjust the relations between this clause and other relevant clauses in the Civil Code, namely, the clauses providing for an action to rebut the presumption of legitimacy, the period of prohibition of remarriage, and an action to determine paternity. In this respect, such stance seems to go beyond the limits of an interpretative theory.
Governing a parent-child relationship is an issue related to a nation’s fundamental framework for public order. If the conventional rules no longer match the realities in society, a solution to this problem should not be pursued as a judicial solution given on a case-by-case basis, but it should be considered as an issue to be addressed by legislative policy, while taking into account the public awareness of this problem, the child’s interest (including the interest in knowing his/her own origin), the wife’s interest in terms of privacy, progress in science and technology and advancement of assisted reproductive technology, how to handle the results of DNA testing, etc. as evidence, adjustments with the adoption system, inheritance system, etc., and various other circumstances.

The concurring opinion by Justice YAMAURA Yoshiki is as follows.
1. I would like to give comments on how we should assess the fact that the nonexistence of a biological father-child relationship becomes clear as a result of DNA testing when examining the applicability of the presumption of legitimacy under Article 772 of the Civil Code in an action for a declaratory judgment on the nonexistence of a parent-child relationship. In my discussions below, I will focus on the issues of procedural law.

2. Article 772 of the Civil Code provides that a child conceived by the wife during marriage is presumed to be her husband’s child, without questioning whether the child and husband are biologically related, and thereby establishing a legal father-child relationship upon the child’s birth. Having said that, the Civil Code does not completely ignore a blood relationship. It provides for the procedure whereby an action to rebut the presumption of legitimacy may be filed under certain conditions (Article 775) and allows the husband to stand to sue in such action. If it is proved in said action that there is no biological father-child relationship between the husband and the child, their legal father-child relationship is considered to have never existed from the time of the child’s birth. Thus, Article 772 of the Civil Code not only serves as a mere norm of division of burden of proof of the fact as to whether or not a father-child relationship exists, but it also provides for a strong presumption for the purpose of determining a legal father-child relationship promptly, while also providing for the procedural rule that a father-child relationship cannot be denied by any means other than an action to rebut the presumption of legitimacy.
However, according to the judicial precedents cited in the majority opinion, it is considered that if there are circumstances that are apparent to outside observers, from which it is clear that it was impossible for a husband and a wife to have a sexual relationship when the wife conceived the child (e.g. the husband was serving a term in prison at that time), the child is ineligible for the presumption of legitimacy, and an action for a declaratory judgment on the nonexistence of a parent-child relationship in such case may be filed instead of filing an action to rebut the presumption of legitimacy. An action for a declaratory judgment on the nonexistence of a parent-child relationship may be filed at any time and by any person who has interest in having the nonexistence of a parent-child relationship declared by the court. Furthermore, as it is not an action to make a change to a legal relationship but it is an action seeking a declaration as to whether or not a parent-child relationship exists, it is considered to be possible to allege the existence or nonexistence of a father-child relationship regarding a child who is ineligible for the presumption of legitimacy as an underlying issue in a certain action, without directly filing an action for a declaratory judgment on the nonexistence of a parent-child relationship.
An action for a declaratory judgment on the nonexistence of a parent-child relationship regarding a child conceived by the wife during marriage is allowed as an exception only when the abovementioned circumstances that are apparent to outside observers exist. In such action, only after the existence of these apparent circumstances is recognized, the process moves on to the next stage of proving the fact as to whether or not a father-child relationship exists by means of blood typing or DNA testing (if the abovementioned circumstances that are apparent to outside observers are not found, an action for a declaratory judgment on the nonexistence of a parent-child relationship is dismissed without prejudice at this stage, and the results of blood typing or DNA testing that have been produced as evidence would have no meaning).

3. There is also a view that if the abovementioned apparent circumstances do not exist but the nonexistence of a biological father-child relationship is clear from the results of DNA testing, etc., an action for a declaratory judgment on the nonexistence of a parent-child relationship should be allowed. However, I cannot agree with this view. To put it bluntly, this view means that any interested person may file at any time an action for a judgment that declares the nonexistence of a parent-child relationship between a father and a child, not only in an extraordinary situation in which it is clear that the child was conceived by the wife who in appearance had no chance to have sexual intercourse with her husband, but also in cases where a child who in appearance was born to an ordinary family formed by the husband and the wife proves to have no biological parent-child relationship with the father when the child has happened to undergo DNA testing. This is equal to arguing that a parent and a child in legal terms are related only by a biological blood tie, and hence it is inconsistent with the literal meaning of Article 772 of the Civil Code and the judicial precedents of this court established to date.

4. Moreover, in addition to the view that places a particular emphasis on the blood relationship as described in 3. above, there are other views that an action for a declaratory judgment on the nonexistence of a parent-child relationship should be allowed if (i) the nonexistence of a biological father-child relationship becomes clear from scientific evidence as a result of DNA testing, etc., and (ii) the child’s family formed with his/her legal father has already broken down and the secret of the child’s birth has been unveiled. Another view that allows such action requires that (iii) the child has a new family formed with his/her biological father or the child is in a situation where he/she can secure a legal parent-child relationship with his/her biological father, in addition to both conditions (i) and (ii) being met. However, I cannot agree with any of these views on the following grounds.
The base time for determining the existence or nonexistence of the facts constituting conditions (ii) and (iii) would be the time of conclusion of oral argument in an action for a declaratory judgment on the nonexistence of a parent-child relationship. According to the views mentioned above, if the facts constituting condition (ii) or (iii) cannot be found at the time of conclusion of oral argument in that action, the claim for a declaratory judgment on the nonexistence of a parent-child relationship would not be upheld even if the nonexistence of a biological father-child relationship is clear from the results of DNA testing, etc. In that case, the material information regarding the privacy of the persons concerned that is contained in the results of DNA testing would be submitted and disclosed in court, which would only end in disturbing the peace at home.
Furthermore, based on the abovementioned judicial precedents, whether or not the abovementioned circumstances that are apparent to outside observers existed is determined as of the time the wife was able to conceive the child---a certain point in time in the past---, and thus the point in time at which the fact subject to determination existed is fixed. However, the approach of taking into consideration the existence or nonexistence of the facts constituting condition (ii) or (iii) is equal to bringing the perspective of whether or not a fact exists as of the time of conclusion of oral argument---an uncertain point in time in the future---into the process of determining whether or not the presumption of legitimacy applies, and this approach is largely different from the approach adopted in the judicial precedents of this court. For example, let us suppose a case in which the husband attempts to rebut a father-child relationship by stressing the results of DNA testing. While the facts constituting condition (ii) can be easily found, whether or not the facts constituting condition (ii) exist at the time of conclusion of oral argument would be the subject of examination by court, and it is not impossible for the challenging party to attempt to destroy the family intentionally. The facts constituting condition (iii) largely depend on the assessment of the relevant, underlying facts, which may be exemplified by the child’s mother and biological father having remarried or living together, or the biological father having been identified and expressing the intention to acknowledge paternity. However, the relationships between a man and a woman can change, and the circumstances can also change while the action is pending at court. Even if the underlying facts are finally found at the time of conclusion of oral argument, there is no guarantee that the circumstances will not change after a judgment is rendered. Moreover, after a claim for a declaratory judgment on the nonexistence of a parent-child relationship has been rejected, the same claimant might repeatedly file actions, alleging that the facts constituting condition (ii) or (iii) were not found in the previous action but these facts can now be found. There is no clear way to prevent such repeat actions.
The approach of taking into consideration the facts constituting condition (ii) or (iii) can be understood as providing a means to bring about welfare for a child who, as if, has fallen into a crack in law and is isolated, and can be appreciated in that sense. However, it also has serious problems such as making the child’s status unstable as mentioned above, and to me, it seems to be placing too much emphasis on the results of DNA testing.

5. Some say that once DNA testing was conducted voluntarily in whatever circumstances, and as a result, the fact that there is no biological father-child relationship has been revealed at court, there is no choice but to admit and start from such fact. However, this situation does not always happen by chance but may arise from the party’s intention of making the outcome of the action advantageous thereto by first obtaining the results of DNA testing, which is strong evidence, and stressing it in court. In this respect, it is questionable to overvalue that fact. If the court, in reference to the results of DNA testing voluntarily conducted, were to take the stance to conclude that there is nothing to do as far as a fact that is biologically certain has been revealed, it would lead to the situation where only the results of DNA testing would rule the court.
Both the majority opinion (including the concurring opinions) and the dissenting opinions, although based on different stances, seek to bring about happiness in real terms to the family as a whole, including welfare for the child, with an eye to the present and future situations. Similarly, a child’s legal father, mother and biological father are presumably all concerned with the future of the child and hope for his/her happiness. However, I feel hesitant about determining the child’s future based on the results of DNA testing, as was done in the present case, when the child is so young that it is impossible to confirm his/her intention, while ignoring the intention of the appellant who has raised the child with the self-awareness and responsibility as her father. Above other things, I think it is inappropriate to determine a father-child relationship without confirming the child’s intention when the legal father and mother are still emotionally confronted with each other over why they have ended up in divorce or how their marriage has broken down. From this standpoint, it may be possible to provide the child with an opportunity to challenge the father-child relationship in court after the child has grown enough to have the ability to make an appropriate judgment and capability to exercise the right to self-determination. However, this may be a legislative approach that goes beyond the bounds of legal interpretation.
Along with the progress in science and technology, the effective use thereof is of course necessary, but DNA must not be abused as it is important information that is related to human dignity. If the court presents a legal interpretation that could lead to the situation in which, as a result of DNA testing that happens to have been conducted, the legal father-child relationship suddenly ceases to exist although its existence has been believed until then, this would destroy the stability of the martial relationship and parent-child relationship, and could result in making it impossible to eliminate the instability in the child’s status throughout his/her life unless DNA testing is conducted as soon as a child is born. In order to create a new norm regarding such important matters that cannot be addressed by a legal interpretation, there is no way but to make a new law after adequate debate is held among the public.

The dissenting opinion by Justice KANETSUKI Seishi is as follows.
Contrary to the majority opinion, I consider that the conclusion of the court of prior instance is appropriate in that it upheld the claim for a declaratory judgment on the nonexistence of a parent-child relationship in this case and this conclusion should therefore be maintained.
1. In this case, with regard to the child conceived by Wife P during the marriage with Husband Q, it is shown that R, a man other than Q, is the biological father of the child at the probability of 99.999998%. About one year and three months after the delivery of the child, P and Q divorced by agreement, designating P as the person who was to exercise parental authority over the child, and at present, P and the child live with R. Under such circumstances, the child, represented by P (statutory agent), filed an action against Q to seek a declaratory judgment on the nonexistence of a parent-child relationship.
The majority opinion judged this action to be unlawful, holding as follows: [i] the existence of such circumstances as mentioned above does not necessarily deny the necessity to preserve the legal stability of the child's status; and [ii] if it is obvious that the husband and the wife had no opportunity to have any sexual relationship when the wife is supposed to have conceived the child because the husband and the wife had already de facto divorced and no longer maintained the substance of their marital relationship or they were living away from each other, the existence of a father-child relationship between the husband and that child can be challenged by filing an action for a declaratory judgment on the nonexistence of the parent-child relationship, notwithstanding the provisions of Article 774 and the following of the Civil Code, but these circumstances that are to be taken into consideration under the doctrine of apparent circumstances cannot be found in this case.
Therefore, the points that decide the conclusion of this case may be how a blood relationship should be regarded in the process of determining a legal father-child relationship, how the issue of securing a father for a child should be considered from the perspective of welfare for the child, and whether an action for a declaratory judgment on the nonexistence of a parent-child relationship should not be allowed with regard to a child who is presumed to be a child born in wedlock under any circumstances except those recognized under the doctrine of apparent circumstances.

2. As the majority opinion points out, the Civil Code permits inconsistency to take place between the legal father-child relationship and the biological father-child relationship. At the same time, the Civil Code regards the biological father-child relationship as the genuine father-child relationship, which may be clear from the fact that the existence or nonexistence of a blood relationship is considered to be a factor that decides whether there are any grounds for rebuttal to the presumption of legitimacy or whether or not an acknowledgement of paternity is valid.
In the present case, it is scientifically certain from evidence that the child has a biological father-child relationship with R and does not have such a relationship with Q, and this fact has been disclosed in court. However, Q did not file an action to rebut the presumption of legitimacy, and moreover, Q refuses to dissolve the father-child relationship and a ruling equivalent to an agreement is unlikely to be made. Given this situation, if an action for a declaratory judgment on the nonexistence of a parent-child relationship is not allowed, the legal parent-child relationship between the child and Q cannot be dissolved, and the legal, natural parent-child relationship between the child and R cannot be formed. Q remains the child’s legal father even though the child’s father by blood is identified and the child lives with that father. Is this a natural state? Is this a stable relationship? It is true that a parent and a child are not related only by blood, but when there is a father who has a blood relationship and lives with the child and another father who does not, as in the present case, the relationship with the biological father could generally be said to be more stable and lasting. From the perspective of raising and taking care of the child as well, it would be practically difficult for Q to play a substantial part in raising and taking care of the child under the circumstances of the case. Furthermore, when Q’s inheritance takes place in the future, that child will become Q's heir in the capacity of Q’s natural child, not R’s. Would other heirs of Q be able to accept this?
Some may say that if the child seeks to become R’s child, this is possible by being adopted by R. However, the parent-child relationship formed by adoption would be different from a natural parent-child relationship in the child’s heart, although there is no difference between these relationships in terms of legal effect. The continued existence of the legal father-child relationship with Q, who is not related by blood, could also make the child psychologically and emotionally unstable in the process of growing up. Moreover, until the legal father-child relationship with Q is dissolved, the child would not be able to establish a legal father-child relationship with R by taking initiative to seek an acknowledgement by R. We should not disregard the fact that rejecting an action filed against Q to seek a declaratory judgment on the nonexistence of a parent-child relationship is, in some aspects, equal to depriving the child of the right to seek a father. In addition, under the circumstances of the case, even if the legal father-child relationship with Q is dissolved, the child can immediately secure another father, R.

3. The Civil Code provides that the nonexistence of a parent-child relationship with regard to a child who is presumed to be a child born in wedlock cannot be asserted other than by an action to rebut the presumption of legitimacy, for which the standing to sue and the period during which the action may be filed are strictly restricted. The purpose of these provisions is interpreted as protecting the privacy and peace at home and also protecting the child by determining his/her father-child relationship promptly. According to this interpretation, if the relationship between the husband and the wife has broken down and the secret of the child’s birth has been unveiled, the former legal interest to be protected has already been lost, and in addition to this, if the situation seems to allow an action for a declaratory judgment on the nonexistence of a parent-child relationship also from the perspective of securing the child’s father, there would be no practical reason for applying the strict restrictions under the system of rebutting the presumption of legitimacy to the child in that situation.
In cases where the existence of a biological father-child relationship is denied based on scientific evidence, I should say that this alone cannot be the basis for allowing an action for a declaratory judgment on the nonexistence of a parent-child relationship, but I would propose that such action should be allowed if other conditions are also met as happened in the present case, that is, the relationship between the husband and the wife has already broken down and the secret of the child’s birth has been unveiled, and the child is in a situation where he/she can secure a legal parent-child relationship with his/her biological father. What I propose is to make exceptions to the system for presuming legitimacy and rebutting the presumption of legitimacy only if it would not in effect be contrary to its legislative purpose, although this might make this system less effective in determining a father-child relationship. Such treatment would not lead to hollowing out that system. The approach I propose is not different from the doctrine of apparent circumstances in that exceptions are made to the system of rebutting the presumption of legitimacy by introducing practical viewpoints in handling a child who is in form presumed to be a child born in wedlock.
An expected criticism is that if an action for a declaratory judgment on the nonexistence of a parent-child relationship is allowed in the situation as was in the present case beyond the extent covered by the doctrine of apparent circumstances, the conditions that should be met would become unclear. However, the breaking down of the relationship between the husband and the wife is a condition that is usually examined and determined in divorce suits, and the other conditions, that is, the secret of the child’s birth has been unveiled, and the child is in a situation where he/she can secure a legal parent-child relationship with his/her biological father, are not particularly unclear to me. The doctrine of apparent circumstances is generally useful for making a determination without going into the private matters between the husband and the wife and may be clear in many cases in judging whether or not the conditions are met. However, in the preceding case, 1995 (O) No. 1095, judgment of the Second Petty Bench of the Supreme Court of August 31, 1998, Saibanshu Minji No. 189, at 437, for example, the court judged whether or not the husband and the wife maintained the substance of their marital relationship by going so far as to make a finding as to whether they had sexual intercourse or had a chance to have it. In such case, there is little difference in terms of the clarity of the conditions that should be met.
An action for a declaratory judgment on the nonexistence of a parent-child relationship may be filed by any person who is legally interested, and this may be argued as a ground for being negative about expanding the applicability of such action. It is doubtful whether an action for a declaratory judgment on the nonexistence of a parent-child relationship, which is personal status litigation, should be treated completely in the same line as an action for a declaratory judgment on the nonexistence of a legal relationship in general, when considering this point. I would say that attention should be paid to the opinion given by Justice Fukuda in 1995 (O) No. 2178, judgment of the Second Petty Bench of the Supreme Court of August 31, 1998, Saibanshu Minji No. 189, at 497, but I would not go any further on this as it is not a point at issue in the present case. Some would rather question whether the mother who filed this action as a statutory agent of her child really did so while having the interest of the child in mind. If this point is questionable, it may be appropriate to appoint a special agent for the child. Some would also hesitate about allowing the action for declaratory judgment on the nonexistence of a parent-child relationship in this case because the root cause of the dispute is the wife’s infidelity. This point also applies under the doctrine of apparent circumstances, and I consider it to be inappropriate to make the issue of whether or not an action is lawful dependent on such matter when an action is filed in order to determine a father-child relationship, in which a child has the paramount interest as his/her own identity problem.

4. I can fully understand the opinion that legal stability should be prioritized above all things under the personal status law and an outcome that departs from the provisions of law should be avoided to the greatest possible extent. However, the specific validity of a solution to a case is the essence of justice, and in such cases as the present case, I do not think it reasonable to place priority on maintenance of legal stability, which is a general and abstract benefit.
In practices at family courts, this type of dispute is frequently intended to be solved by precluding the presumption of legitimacy based on a ruling equivalent to an agreement under Article 277 of the Domestic Relations Case Procedure Act (Article 23 of the former Domestic Relations Adjudication Act), and some literature introduces cases in which family courts handled such disputes in a manner beyond the extent covered by the doctrine of apparent circumstances. If family courts actually handle cases in this manner, they probably do so to avoid the strictness of the system for rebutting the presumption of legitimacy, with a view to finding a specifically valid solution to each case. A different conclusion would be reached if the intention of a man who is presumed to be the father under Article 772 of the Civil Code is considered to be a matter of decisive importance in solving such cases as the present case, but this view is not appropriate. Such practices at family courts in issuing a ruling equivalent to an agreement do not seem to be so far away from the decision in the present case to allow the action for a declaratory judgment on the nonexistence of a parent-child relationship filed.
Some are concerned that if an action for declaratory judgment on the nonexistence of a parent-child relationship is accepted as lawful more broadly, this could lead to forced or abusive use of DNA testing. However, DNA testing has already been applied broadly, not only in paternity suits but also on occasions outside court, and thus the risk of abusive use of DNA testing actually exists, irrespective of whether or not to allow an action for a declaratory judgment on the nonexistence of a parent-child relationship as filed in this case. If it is necessary to set regulations through legislation or legal interpretation to prevent such abusive use, this should be considered as a separate issue. The present case does not involve the problem of forced or abusive use of DNA testing, and it could happen again that the existence or nonexistence of a parent-child relationship is proved from the results of DNA testing, whether it is used abusively or not. Hence, this problem should be considered separately from the issue of whether or not to allow an action for a declaratory judgment on the nonexistence of a parent-child relationship as filed in this case.

The dissenting opinion by Justice SHIRAKI Yu is as follows.
I agree with the opinion given by Justice KANETSUKI, which is contrary to the majority opinion, to the effect that the conclusion of the court of prior instance is appropriate in that it upheld the claim for a declaratory judgment on the nonexistence of a parent-child relationship in this case and this conclusion should therefore be maintained.
1. The basic rule under the provisions of the Civil Code may be to recognize a parent-child relationship between the parties who are related by blood. However, looking at what is written in these provisions, a child conceived by the wife is presumed to be a child of her husband (Article 772, paragraph (1)), and this presumption cannot be challenged other than by an action to rebut the presumption of legitimacy, which may not be filed by anyone but the husband. Furthermore, the period during which the husband may file such action is limited to within one year from the time the husband comes to know the child’s birth (Article 774 and the following). In short, under the existing system, it is by no means permissible to challenge the father-child relationship in legal terms upon the expiration of this one-year period, even if it is clear that the child is not a child of the husband.
It is said that this system was established because of the necessity to maintain the peace at home, and to determine a legal father-child relationship promptly. In addition to these reasons, another background factor may have been that while the mother-child relationship can be confirmed by facts are apparent to outside observers such as conception and delivery, it is extremely difficult to prove the father-child relationship.

2. However, the human nature of desiring to identify the blood relationship between a father and a child and have it reflected in the family register cannot be ignored when discussing the matter of law. In consideration of this, the judicial precedents of this court ruled that if it is obvious that a husband and a wife had no opportunity to have any sexual relationship when the wife is supposed to have conceived the child because the husband and the wife had already de facto divorced and no longer maintained the substance of their marital relationship or they were living away from each other, said child is in effect ineligible for the presumption of a father-child relationship under Article 772, paragraph (1) of the Civil Code (see the three judgments of the Supreme Court cited in the majority opinion, including the judgment of the First Petty Bench of May 29, 1969). I should say that this means that it is no longer possible to maintain the system under the Civil Code as it was originally created.

3. The recent progress in science and technology is remarkable. DNA testing technology to identify individuals is said to have already reached the ultimate level. One DNA testing method can detect a certain DNA type that appears at the frequency of one among approximately 4.7 trillion persons. As the total world population is estimated to be approximately 7 billion, in the context of probability calculation, a person cannot find another person on earth who has the same DNA type. This technology has made it possible to identify almost perfectly whether or not there is a blood relationship between a father and a child. This could have never been imagined when the Civil Code was first enacted. There seems to be a growing trend among people desiring to identify the blood relationship between the father and the child and have it reflected in the family register.

4. In light of the circumstances described above, it may be necessary to harmonize the system or mechanism for presuming legitimacy under the Civil Code with people’s desire to have the true father-child relationship by blood reflected in the family register. While it is needless to say that the best way to achieve this is legislation, it cannot be denied that in order to cope with unprecedented situations that take place from day to day, it is also necessary for the time being to pursue an appropriate and valid solution to each and every case. In the present case, focusing on the facts that the relationship between the husband and the wife has already broken down and the secret of the child’s birth has been unveiled, and that the child is in a situation where he/she can secure a legal parent-child relationship with the father related thereto by blood, I consider it to be appropriate to allow the action for a declaratory judgment on the nonexistence of a parent-child relationship that was filed by the child.

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