2015.03.10

2013 (Gyo-Tsu) 230

Minshu Vol. 69, No. 2

Judgment concerning Article 12 of the Nationality Act and Article 14, paragraph (1) of the Constitution

Case to seek a declaratory judgment on nationality

Judgment of the Third Petty Bench, dismissed

Tokyo High Court, Judgment of January 22, 2013

Article 12 of the Nationality Act does not violate Article 14, paragraph (1) of the Constitution.

Article 14, paragraph (1) of the Constitution, Article 12, and Article 17, paragraphs (1) and (3) of the Nationality Act, Article 104 of the Family Register Act



The Constitution of Japan

Article 14

(1)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.

Nationality Act

Article 12

A Japanese citizen who acquired the nationality of a foreign country through birth and who was born abroad shall retroactively lose Japanese nationality to the time of birth unless he/she indicates an intention to reserve Japanese nationality pursuant to the provision of the Family Register Act (Act No. 224 of 1947).

(Reacquisition of Nationality)

Article 17

(1) A person who loses Japanese nationality pursuant to the provisions of Article 12 and is under twenty years of age may acquire Japanese nationality, if he/she has a Japanese domicile, through notification to the Minister of Justice.

(3) The person making notification provided for in the provisions of the preceding two paragraphs shall acquire Japanese nationality at the time of the notification.

Family Register Act

Article 104

(1) The manifestation of the intention to reserve Japanese nationality prescribed in Article 12 of the Nationality Act shall be made by a person who may submit a notification of birth (excluding the persons who should submit a notification pursuant to the provisions of Article 52, paragraph (3)) within three months from the date of birth, by submitting a notification of the intention to reserve Japanese nationality.

(2) The notification set forth in the preceding paragraph shall be submitted along with the notification of birth.

(3) When the person prescribed in paragraph (1) is unable to submit a notification during the period set forth in said paragraph due to a natural disaster or any other grounds not attributable to him/her, that period shall be 14 days from the time when it has become possible to submit a notification.

The final appeal is dismissed.

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

I. Outline of the case

In this case, the appellants of final appeal, who were born in the Republic of Philippines as children in wedlock between fathers who have Japanese nationality and mothers who have Philippine nationality and acquired Philippine nationality, seek a declaratory judgment that they have Japanese nationality. The appellants' parents and other responsible persons failed to manifest the intention to reserve Japanese nationality for the appellants within three months after the time of birth, and as a result, the appellants retroactively lost Japanese nationality as of the time of birth as provided in Article 12 of the Nationality Act. Accordingly, the appellants allege that said Article which provides for, inter alia, the abovementioned requirement for reserving Japanese nationality with regard to children born outside Japan who are to have Japanese nationality and foreign nationality by birth is in violation of Article 14, paragraph (1), etc. of the Constitution in that it makes a distinction between such children and children born in Japan who are to have Japanese nationality and foreign nationality by birth and therefore that said Article should be held to be invalid.

II. Concerning Reasons III, IV and VI for final appeal argued by the appeal counsel, KONDO Hironori

1. Article 10 of the Constitution provides that "The conditions necessary for being a Japanese national shall be determined by law." In accordance with this provision, the Nationality Act provides for the requirements for acquisition and loss of Japanese nationality. The provision of Article 10 of the Constitution can be construed to mean that since nationality is the qualification for being a member of a particular state, and when specifying the requirements for acquisition or loss of nationality, it is necessary to take into consideration various factors concerning each state, including historical backgrounds, tradition, and political, social and economic circumstances, the determination on the details of these requirements should be left to the discretion of the legislative body. Article 14, paragraph (1) of the Constitution provides for equality before the law for the purpose of prohibiting discrimination without reasonable grounds. A distinction in the treatment of people by law is not in violation of said paragraph as long as it is based on reasonable grounds. Consequently, it is appropriate to construe that where a distinction is created by way of a requirement prescribed in the law concerning acquisition and loss of Japanese nationality that has been established through the abovementioned legislative process, provided that there are reasonable grounds for the legislative purpose of making such distinction, and that the specific content of the distinction is not unreasonable in connection with said legislative purpose and does not seem to go beyond the bounds of reasonable discretion of the legislative body, such distinction cannot be held to constitute discrimination without reasonable grounds and therefore it cannot be judged to be in violation of Article 14, paragraph (1) of the Constitution (see 1962 (O) No. 1472, judgment of the Grand Bench of the Supreme Court of May 27, 1964, Minshu Vol. 18, No. 4, at 676, 1998 (O) No. 2190, judgment of the Second Petty Bench of the Supreme Court of November 22, 2002, Saibanshu Minji No. 208, at 495, 2006 (Gyo-Tsu) No. 135, judgment of the Grand Bench of the Supreme Court of June 4, 2008, Minshu Vol. 62, No. 6, at 1367).

2. (1) Article 12 of the Nationality Act provides that among children who are to have nationality in two countries by acquiring the nationality of a foreign country by birth and also acquiring Japanese nationality at the time of birth in accordance with Article 2, item (i) or item (ii) of said Act, a child born outside Japan shall retroactively lose Japanese nationality as of the time of birth if the child's parent or any other person responsible for making a notification of birth under Article 104 of the Family Register Act fails to follow the procedure for making a notification to manifest the intention to reserve Japanese nationality for the child within three months from the date of birth (this time limit for the notification may be extended under certain circumstances such as a natural disaster), which is not required to be performed with regard to children born in Japan, and thus Article 12 of the Nationality Act makes a distinction between children born outside Japan and children born in Japan by not allowing the former to acquire Japanese nationality by birth. Furthermore, Article 17, paragraphs (1) and (3) of the Nationality Act provide that a person who has lost Japanese nationality under Article 12 of said Act and who is under 20 years of age may, by notifying the Minister of Justice, acquire Japanese nationality as of the time of making the notification, if the person has a domicile in Japan.

(2) With regard to acquisition of Japanese nationality by birth, Article 2, items (i) and (ii) of the Nationality Act can be interpreted as granting Japanese nationality to a child by considering that the fact that the child, at the time of birth, has a legal parent-child relationship with the father or mother who has Japanese nationality generally indicates the existence of the child's close tie with Japan. In some cases, however, such a child who was born outside Japan and is to have Japanese nationality and foreign nationality by birth may not always have a close tie with Japan, such as due to the base of the child's living being located in the foreign country permanently. With this in mind, and on the basis of the rules prescribed in the abovementioned items, the Nationality Act may have been designed to prevent to the greatest possible extent Japanese nationality from coming into existence without substance and to avoid to the greatest possible extent the emergence of dual nationality, which has been criticized for having harmful influence on, for example, domestic order. In line with this, Article 12 may have been established to make a distinction as described in (1) above as regards the requirement for acquisition of Japanese nationality by birth, etc. between such children and children born in Japan who are to have Japanese nationality and foreign nationality. The legislative purpose of said Article as such is considered to be supported by reasonable grounds.

Based on the abovementioned legislative purpose, Article 12 of the Nationality Act makes a distinction as described in (1) above between children born outside Japan who are to have Japanese nationality and foreign nationality and children born in Japan who are to have Japanese nationality and foreign nationality. It is desirable that whether or not a child acquires nationality of a certain country by birth should be definitively determined at the time of birth of the child, to the greatest possible extent, from the perspective of ensuring stability of the child's legal status. When the child's parent or any other person responsible for making a notification of birth manifests the intention to reserve Japanese nationality for the child, this fact can be regarded as representing the child's close tie with Japan. Moreover, consideration is given to the method and time limit for the manifestation of intention by the child's parent, etc., e.g. the intention to reserve Japanese nationality is in principle required to be manifested within three months from the date of birth of the child concurrently when making a notification of birth. Even if such intention is not manifested within the three-month period, Article 17, paragraphs (1) and (3) of said Act allow the child, before reaching the age of 20, to acquire Japanese nationality by notifying the Minister of Justice if the child has a domicile in Japan. Taking all these matters into consideration, the specific content of the abovementioned distinction cannot be held to be unreasonable in connection with the aforementioned legislative purpose, and therefore cannot be considered to be beyond the bounds of reasonable discretion of the legislative body.

Consequently, the abovementioned distinction prescribed in Article 12 of the Nationality Act between children born outside Japan and children born in Japan among those who are to have Japanese nationality and foreign nationality by birth does not constitute discrimination without reasonable grounds.

The appeal counsel argue a lack of balance with other systems that provide the requirements for acquisition of Japanese nationality by reasons other than birth. These systems have different purposes and objectives from those of Article 12 of the Nationality Act, which prescribes the requirement for acquisition of Japanese nationality by birth, and their argument on this point does not affect the determination presented above.

3. According to the above, Article 12 of the Nationality Act does not violate Article 14, paragraph (1) of the Constitution. This conclusion is clear from the purport of the precedent of the Grand Bench of this court (the aforementioned judgment of the Grand Bench of the Supreme Court of May 27, 1964). The determination of the court of prior instance that is in line with this conclusion can be affirmed as justifiable. The appeal counsel's arguments cannot be accepted.

III. Concerning other reasons for final appeal

Other reasons for final appeal argued by the appeal counsel in which they allege violation of the Constitution are in effect assertions of unappealable violation of laws and regulations or lack a premise, 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.

Justice OTANI Takehiko

Justice OKABE Kiyoko

Justice OHASHI Masaharu

Justice KIUCHI Michiyoshi

Justice YAMASAKI Toshimitsu