Judgments of the Supreme Court

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2019 (Ju) 184

Date of the judgment (decision)

2020.07.07

Case Number

2019 (Ju) 184

Reporter

Minshu Vol. 74, No. 4

Title

Judgment concerning the law governing the formation of a parent-child relationship by delivery between a child born out of wedlock and his/her mother prior to the enforcement of the Act Partially Amending the Act on General Rules for Application of Laws (Act No. 27 of 1989)

Case name

Case seeking a declaratory judgment on the existence of a parent-child relationship

Result

Judgment of the Third Petty Bench, partially quashed and remanded and partially dismissed with prejudice on the merits

Court of the Prior Instance

Tokyo High Court, Judgment of October 18, 2018

Summary of the judgment (decision)

The formation of a parent-child relationship of a child born out of wedlock with his/her mother by delivery prior to the enforcement of the Act Partially Amending the Act on General Rules for Application of Laws (Act No. 27 of 1989) is provided for by the national law of the mother at the time of the child's birth through application of Article 29, paragraph (1) of the Act on General Rules for Application of Laws.

References

Article 29, paragraph (1) of the Act on General Rules for Application of Laws, Article 2 of the Supplementary Provisions of the Act on General Rules for Application of Laws, paragraph (2) of the Supplementary Provisions of the Act Partially Amending the Act on General Rules for Application of Laws (Act No. 27 of 1989), and Article 18, paragraph (1) and Article 22 of the Act on General Rules for Application of Laws (prior to amendment by Act No. 27 of 1989)



Act on General Rules for Application of Laws

Article 29, paragraph (1)

(1) In the case of a child born out of wedlock, the formation of a parent-child relationship with regard to the father and the child shall be governed by the father's national law at the time of the child's birth, and with regard to the mother and the child by the mother's national law at said time. In this case, when establishing a parent-child relationship by acknowledgment of parentage of a child, if obtaining the acceptance or consent from the child or a third party is required for acknowledgement under the child's national law at the time of the acknowledgement, such requirement shall also be satisfied.

Supplementary Provisions

Article 2

The provisions of the Act on General Rules for Application of Laws after revision (hereinafter referred to as the "New Act"), except under the next Article, shall also apply to matters that have arisen prior to the date of the effectuation of this Act (hereinafter referred to as the "Date of Effectuation").



Act Partially Amending the Act on General Rules for Application of Laws (Act No. 27 of 1989)

Supplementary Provisions

(Transitional Measure)

Paragraph (2)

(2) Prior laws continue to govern the matters that arose prior to the enforcement of this Act; provided, however, that with regard to a legal relationship that is actually continuing at the time of the enforcement of this Act, the provisions of the Act on General Rules for Application of Laws after the amendment apply only if it is a legal relationship after the enforcement of this Act.



Act on General Rules for Application of Laws (prior to amendment by Act No. 27 of 1989)

Article 18, paragraph (1)

(1) The requirements for the acknowledgement of parentage of a child with regard to the father or mother of the child are to be provided for by the law of the country to which the father or mother belongs at the time of the acknowledgement of parentage and those with regard to the child are to be provided for by the law of the country to which the child belongs at the time of the acknowledgement of parentage.

Article 22

Family relationships and rights and obligations arising therefrom other than those set forth in the preceding nine Articles are to be provided for by the national law of the party.

Main text of the judgment (decision)

1. Of the judgment in prior instance, the part concerning a claim for a declaratory judgment on the existence of a parent-child relationship between the appellant and the deceased P is quashed, and this case is remanded to the Tokyo High Court regarding the same part.

2. Other final appeals filed by the appellant of final appeal are dismissed with prejudice on the merits.

3. The costs of the final appeal concerning the preceding paragraph shall be borne by the appellant.

Reasons

Concerning Reason II-1(1) for a petition for acceptance of final appeal stated by the counsel for final appeal, I Uhe, et al.

1. In this case, the appellant argues against a public prosecutor that the appellant is a child born between the deceased Q and the deceased P and seeks a declaratory judgment on the existence of a parent-child relationship between the appellant and P, etc. The parties dispute over the law governing the formation of a parent-child relationship by delivery between a child born out of wedlock and his/her mother.

2. The outline of facts lawfully determined by the court of prior instance is as follows.

(1) The appellant was born in Japan on MM DD, 1958 and resides in Japan. For the appellant, a notification of birth was submitted in South Korea as a child between Q and his wife of the time, and Q's name at the time was stated in the "Father" column of the appellant's family register in South Korea.

In MM 2002, the appellant acquired Japanese nationality through naturalization. In the appellant's family register in Japan created at that time, the "Father" column was left blank and the name of a woman distantly related to Q was stated in the "Mother" column.

(2) P was born in Japan in MM 1933 and had Japanese nationality.

P had the first daughter with Q in MM 1953, and got married with Q in MM 1964. In MM 1965 together with Q, P pursued an adoption to adopt the supporting intervener of the appellee.

P died in MM 2010.

3. Based on the aforementioned facts, the court of prior instance determined as follows and dismissed without prejudice an action for a declaratory judgment on the existence of a parent-child relationship between the appellant and P.

Article 2 of the Supplementary Provisions of the Act on General Rules for Application of Laws (hereinafter referred to as the "Act on General Rules") provides that the provisions of the Act on General Rules apply to the matters that arose prior to the date of enforcement of the Act on General Rules, except for cases under the provisions of Article 3 of the Supplementary Provisions of the same. This transitional measure sets rules for the relationship in terms of applicability between the Act on General Rules for Application of Laws after its partial amendment by Act No. 27 of 1989 (hereinafter referred to as the "1989 Amendment Act") (hereinafter the Act on General Rules for Application of Laws after the partial amendment is to be referred to as the "New Act on General Rules for Application of Laws," and that prior to the same amendment is to be referred to as the "Old Act on General Rules for Application of Laws") and the Act on General Rules after the amendment of the whole of the New Act on General Rules for Application of Laws. The matters that arose prior to the enforcement of the 1989 Amendment Act are not subject to the application of the provisions of the Act on General Rules under Article 2 of the Supplementary Provisions of the Act on General Rules, and the provisions of the Old Act on General Rules for Application of Laws are applied to such matters in accordance with the provisions of the main clause of paragraph (2) of the Supplementary Provisions of the 1989 Amendment Act to the effect that prior laws continue to govern such matters.

Regarding the formation of a parent-child relationship of a child born out of wedlock with his/her mother by delivery prior to the enforcement of the 1989 Amendment Act, the Old Act on General Rules for Application of Laws had no provisions stipulating the governing law, and there was also no established international customary law therefor. Therefore, it is reasonable to apply mutatis mutandis or by analogy Article 18, paragraph (1) of the Old Act on General Rules for Application of Laws that provides for the law governing the formation of a parent-child relationship by the acknowledgment of parentage to the formation of a parent-child relationship by delivery, and it should be construed that both the national law of a mother and that of her child at the time of the child's birth are applicable.

Therefore, both South Korean law and Japanese law are applied to the formation of a parent-child relationship of a child born out of wedlock by delivery for a parent-child relationship between the appellant and P, and the aforementioned action for a declaratory judgment on the existence of a parent-child relationship is unlawful as it was filed after the expiration of the statute of limitations for filing an action prescribed in Article 865, paragraph (2) of the Civil Code of South Korea.

4. However, the aforementioned determination of the court of prior instance cannot be upheld for the following reasons.

The Act on General Rules that provides for the determination and application of a governing law is a law established by amending the whole of the New Act on General Rules for Application of Laws. Article 2 of the Supplementary Provisions of the Act on General Rules provides that the provisions of the Act on General Rules also apply to the matters that arose prior to the date of enforcement of the Act on General Rules (January 1, 2007), except for cases under the provisions of Article 3 of the Supplementary Provisions of the same. The purport of the provisions is considered to permit the retroactive application of the provisions of the Act on General Rules because the result will not change even if the provisions of the Act on General Rules are applied in lieu of the provisions of the New Act on General Rules for Application of Laws and the provisions of the Old Act on General Rules for Application of Laws that had been applied pursuant to the main clause of paragraph (2) of the Supplementary Provisions of the 1989 Amendment Act that provides that prior laws continue to govern the matters that arose prior to the date of enforcement of the 1989 Amendment Act (January 1, 1990), whose content had not been substantially changed by the Act on General Rules. According to such purport, in the case where the Old Act on General Rules for Application of Laws lacks statutory provisions, if a certain norm is drawn through interpretation, etc. of other provisions and the result will not change even if the provisions of the Act on General Rules are applied in lieu of such norm, the norm can be evaluated as having not been substantially changed in its content by the Act on General Rules. Therefore, it should be considered safe to retroactively apply the provisions of the Act on General Rules.

Regarding the formation of a parent-child relationship of a child born out of wedlock, the Old Act on General Rules for Application of Laws provides for the law governing the formation of a parent-child relationship by the acknowledgment of parentage in Article 18, paragraph (1), but has no statutory provisions on the formation of a parent-child relationship by delivery. Regarding the formation of a parent-child relationship of a child born out of wedlock with his/her mother by delivery prior to the enforcement of the 1989 Amendment Act, the determination of a governing law was left to the interpretation of the Old Act on General Rules for Application of Laws. It is considered to have been reasonable to provide for the aforementioned formation of a parent-child relationship by the national law of the mother at the time of the child's birth in consideration of the purport of Article 22 of the Old Act on General Rules for Application of Laws, taking into account such facts that the mother and child have a direct connection based on the delivery and that the child's national law is sometimes not determined unless existence or absence of a parent-child relationship is determined. The aforementioned formation of a parent-child relationship does not fall under the case which is excluded from application of the provisions of the Act on General Rules pursuant to Article 3 of the Supplementary Provisions of the Act on General Rules. Article 29, paragraph (1) of the Act on General Rules provides that the law governing the aforementioned formation of a parent-child relationship is the national law of the mother at the time of the child's birth. Therefore, the result will not change even if the same paragraph is applied in lieu of the aforementioned norm drawn through interpretation of the Old Act on General Rules for Application of Laws, and therefore, the same paragraph should be considered to be retroactively applied.

For the reasons described above, it is reasonable to provide for the formation of a parent-child relationship of a child born out of wedlock with his/her mother by delivery prior to the enforcement of the 1989 Amendment Act by the national law of the mother at the time of the child's birth through application of Article 29, paragraph (1) of the Act on General Rules.

Based on these, the aforementioned action for a declaratory judgment on the existence of a parent-child relationship cannot be determined to be unlawful on the grounds of the expiration of the statute of limitations for filing an action prescribed in Article 865, paragraph (2) of the Civil Code of South Korea through application of South Korean law in addition to P's national law, Japanese law, to the formation of a parent-child relationship of a child born out of wedlock by delivery between the appellant and P.

5. The determination of the court of prior instance different from that described above contains violation of laws and regulations that obviously affects the judgment. The counsel's arguments are well-grounded as arguments to this effect. Of the judgment in prior instance, the part that dismissed without prejudice the action for a declaratory judgment on the existence of a parent-child relationship between the appellant and P should inevitably be quashed, and regarding the same part, this case is remanded to the court of prior instance to be further examined in relation to the existence or absence of a parent-child relationship between the appellant and P. Incidentally, the final appeal concerning other claims filed by the appellant is dismissed with prejudice on merits as the reasons for a petition for acceptance of final appeal were excluded by an order to accept a final appeal.

Accordingly, the Court unanimously decides as set forth in the main text of the judgment.

Presiding Judge

Justice HAYASHI Michiharu

Justice TOKURA Saburo

Justice HAYASHI Keiichi

Justice MIYAZAKI Yuko

Justice UGA Katsuya

(This translation is provisional and subject to revision.)