2024.11.12

2023 (Gyo-Hi) 165

Minshu Vol. 78, No. 6

(Civil Case)Judgment concerning a person who may not become an heir per stirpes as a child of the decedent's sibling

Case seeking revocation of the decisions to dismiss applications for real property registration

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

Tokyo High Court, Judgment of January 18, 2023

A person who is not a lineal descendant of the parent of both the decedent and their sibling may not become an heir per stirpes as a child of the decedent's sibling.

Article 887, paragraph (2) and Article 889, paragraph (1), item (ii) and paragraph (2) of the Civil Code

1. The judgment in prior instance is quashed.

2. The appeal to the court of second instance filed by the appellees of final appeal is dismissed.

3. The costs for the appeal to the court of second instance and the costs for the final appeal shall be borne by the appellees of final appeal.

Concerning the reasons for a petition for acceptance of final appeal stated by the counsel for final appeal, HARUNA Shigeru et al.

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

(1) Both appellees are children born to B and her husband. C (hereinafter referred to as the "Decedent") is a child of D, who is an elder sister of B's mother. B was adopted by D in [month] 1991 after the births of the appellees, and became a younger sister of the Decedent, and then died in [month] 2002.

(2) The Decedent died in [month] 2019. The Decedent had no child or lineal descendant and no siblings other than B, and had no lineal ascendant and no spouse at the time of death.

(3) On June 22, 2020, the appellees filed applications for registration of transfer of ownership and registration of transfer of the entire share of the inheritance by reason of succession with regard to the land specified in 1 of the list of articles attached to the judgment in first instance and the building specified in 2 of the same list, which constitute the estate of the Decedent, alleging that they are heirs of the Decedent per stirpes as children of B pursuant to Article 887, paragraph (2) of the Civil Code as applied mutatis mutandis pursuant to Article 889, paragraph (2) of the same Code.

As of September 2, 2020, the registrar of the Kawasaki Branch of the Yokohama District Legal Affairs Bureau made decisions to dismiss the abovementioned applications on the grounds that these applications fall under the scope of "application filed by a person without the authority to apply" as referred to in Article 25, item (iv) of the Real Property Registration Act (hereinafter referred to as the "Decisions").

2. In this case, the appellees sued the appellant to seek the revocation of the Decisions.

3. Based on the facts mentioned above, the court of prior instance determined as summarized below, and it ruled that the Decisions are illegal and upheld the appellees' claim.

When applying the provision of Article 887, paragraph (2) of the Civil Code mutatis mutandis pursuant to Article 889, paragraph (2) of the same Code in the case referred to in paragraph (1), item (ii) of the same Article, it is appropriate to replace the phrase "person who is not a lineal descendant of the decedent" as referred to in the proviso to Article 887, paragraph (2) of the same Code with "person who is not a collateral descendant of the decedent," and the appellees, who are collateral descendants of the Decedent, may become heirs of the Decedent per stirpes as B's children.

4. However, the abovementioned determination by the court of prior instance cannot be affirmed, for the following reasons.

(1) The proviso to Article 887, paragraph (2) of the Civil Code provides that in cases such as where a child of the decedent dies before the opening of the succession, a person who is a child of the decedent's child but who is not a lineal descendant of the decedent may not become an heir of the decedent per stirpes as a child of the decedent's child. This provision clearly states that if a child of the decedent is an adopted child of the decedent, a person who has been a child of the decedent's adopted child since before the adoption (generally referred to as a child of the adopted child before the adoption) does not have a relationship of being a blood relative with the decedent based on the adoption (Article 727 of the Civil Code; see 1931 (O) 2939, the judgment of the Former Supreme Court of May 11, 1932, Minshu Vol. 11, No. 11, at 1062), and therefore such person may not become an heir per stirpes as a child of the adopted child. Accordingly, the proviso to Article 887, paragraph (2) of the Civil Code as applied mutatis mutandis pursuant to Article 889, paragraph (2) of the same Code is interpreted as providing that if a sibling of the decedent is an adopted child of the parent of the decedent, a child of the adopted child before the adoption who does not have a relationship of blood relatives with the decedent based on the adoption (in such case, a child of the adopted child before the adoption is a person who is not a lineal descendant of the parent of both the decedent and their siblings) may not become an heir per stirpes as a child of the adopted child.

Consequently, it is appropriate to construe that a person who is not a lineal descendant of the parent of both the decedent and any of their siblings may not become an heir per stirpes as a child of the relevant sibling of the decedent.

(2) If this is applied in this case, since the appellees are not lineal descendants of D, who is the parent of both the Decedent and B, they may not become heirs of the Decedent per stirpes as children of B.

5. According to the above, the determination by the court of prior instance contains a violation of law or regulation that has clearly influenced the judgment. The counsel's arguments are well-grounded, and the judgment in prior instance should inevitably be quashed. Based on the explanation given above, the appellees' claim is groundless, and the judgment in first instance that dismissed their claim is justifiable, and therefore the appeal to the court of second instance filed by the appellees should be dismissed.

For the reasons stated above, the Court unanimously decides as set forth in the main text of the judgment.

Justice WATANABE Eriko

Justice UGA Katsuya

Justice HAYASHI Michiharu

Justice ISHIKANE Kimihiro