2002.01.31

1996(Gyo-Tsu)42

Minshu Vol.56, No.1, at 246

Judgment upon the case concerning the legality of the part "(except for a child recognised by the father)" of Article 1-2, para.3 of the Enforcement Order of the Law on the Child Maintenance Benefit (before the amendment by the cabinet order No.224 of 1998)

A claim for the revocation of the decision on the loss of eligibility for the child maintenance benefit

Judgment of the First Petty Bench, quashed

Osaka High Court, Judgment of November 21, 1995

The part in brackets of Article 1-2, para.3 of the Enforcement Order of the Law on the Child Maintenance Benefit (before the amendment by the cabinet order No.224 of 1998) which provides for the children who are eligible for a child maintenance benefit upon delegation by Article 4, para.1, subpara.5 of the Law on Child Maintenance Benefit which excludes "a child recognised by the father" from "a child conceived by the mother without marriage (including instances where the marriage is not registered, but the parties are in the state of de facto marriage) " is against the law for exceeding the scope of delegation and as such, is null and void.

Article 4, para.1 of the Law on the Child Maintenance Benefit Article 4 Governors of the prefecture, governors of the Tokyo Metropolitan Area, Osaka, or Hokkaido, mayors (including the head of the designated districts), and village and town mayors who manages the social welfare offices (offices regarding social welfare as provided in the Social Welfare Law (Law No.45, 1951; the same in the following) shall pay child maintenance benefit (hereinafter, 'the Benefit') to the mother or the custodian, if the mother of a child who falls within one of the following categories takes custody of the child, or in cases where there is no mother or the mother does not take the child in custody and a person other than the mother takes care of the child (lives together with the child, takes custody of the child, and sustains the child; hereinafter, the same). (1) a child whose parents' marriage has been dissolved; (2) a child whose father has died; (3) a child whose father is handicapped above the level provided by the cabinet order; (4) a child whose father is not known whether he is dead or alive; (5) other children who are in a situation similar to the above and determined by the cabinet order. Enforcement Order of the Law on the Child Maintenance Benefit (before the amendment by the Cabinet Order No.224 of 1998) Article 1-2, subpara.3 Children as provided Article 4, para.1, subpara.5 of the Law on Child Maintenance Benefit are those who fall within one of the following categories: (3) a child who was conceived by the mother outside marriage (including instances where the marriage is not registered, but the parties are in reality in a situation similar to that of marriage)(except children recognized by the father).

The judgment of the original instance court shall be quashed. The koso appeal of the jokoku appellee shall be dismissed. The cost of the koso and jokoku appeal shall be borne by the jokoku appellee.

On the grounds of the jokoku appeal by the representatives for the jokoku appeal, MISUMI Shinobu, TADA Minoru, YOKOTA Yasunori and FUKUI Hideyuki: 1. Article 4, para.1 of the Law on the Benefit for Child Maintenance (hereinafter, "the Law") provides, as a prerequisite for the benefit of child maintenance benefit, that when a child who falls under one of the following subparagraphs is in the custody of the mother, or is under the custody of a person other than the mother, the child maintenance benefit is to be paid to the mother or this person. The children who are eligible for the benefit are, "a child whose parents' marriage was dissolved" (para.1), "a child whose father has died"(Para.2), "a child whose father is handicapped at the level as provided by the cabinet order"(para.3), "a child whose father is not known whether he is dead or alive"(para.4), and "children who are in circumstances which are tantamount to the situations as provided in the preceding paragraphs and which are determined by the cabinet order"(para.5). (a "marriage" in this Law including this provision covers parents who are not registered but are in a situation similar to de facto marriage (Art.3, para.3. The same applies in the present judgment). Article 1-2 of the Enforcement Order of the Law on the Child Maintenance Benefit (before the amendment by the cabinet order No.224 of 1998. hereinafter, "the Enforcement Order") lists " a child whose father has abandoned him continuously for one year or more (including fathers who were not registered as married at the time the mother conceived the child, but who were in a state of de facto marriage with her)"(para.1), "a child whose father is in prison for more than a year by law without interruption"(para.2), "a child conceived by the mother without being married (including instances where the marriage is not registered, but the parties are in the state of de facto marriage)" and "children who do not fall under the preceding paragraph in a clear-cut manner"(para.4) as children determined by the cabinet order referred to in Article 4, para.1, subpara.5 of the Law. 2. According to the facts lawfully established by the original instance court, the jokoku appellant conceived a child outside marriage, gave birth to it, took custody of it, and was paid child maintenance benefit as a mother who has taken a child as provided by the Enforcement Order Article 1-2, subpara.3. The jokoku appellee made a decision to disqualify the child as eligible for child maintenance benefit (hereinafter, "the Decision") on October 27, 1993, on the ground that the child was recognised by the father on May 12, of the same year. 3. Under the above circumstances, the original instance court ruled as follows and revoked the judgment of the first instance court which acknowledged the claim of the jokoku appellant asking for the revocation of the Decision. (1) Article 1-2, para.3 of the Enforcement Order as a whole, including the part in brackets, "(except for a child recognised by the father)", is a provision which determines the scope of children in the interest of whom the child maintenance benefit can be paid as a positive prerequisite. The part in brackets cannot be regarded as a separate negative condition for the benefit of the benefit. Extracting the part in brackets from this paragraph, finding it null and void, and revoking the Decision is against the spirit of the paragraph which provides that children conceived through extra-marital relations (hereinafter, "illegitimately conceived children") who are not recognised by the father should generally be the object of a benefit of child maintenance benefit. This would be tantamount to assuming that there is a law which includes illegitimately conceived children not recognised by the father to be included as an object of the payment of benefits and to revoking the Decision on the basis of this law. This would be an infringement of the power of the legislature or the Cabinet which enacted the order and is therefore impermissible. (2) Furthermore, the legislation of the part in brackets is not against the Constitution and is within the scope of delegation. The Law delegates to the discretion of those who enact cabinet orders the designation of those children who qualify for the child benefit for the reason of being in a similar situation to the children as provided by subparas.1 to 4 of Article 4, para.1 of the Law. Subparas 2 and 4 of Article 4, para.1 of the Law provide for a category of children who do not have a father and therefore cannot be sustained by the father, and Article 1-2, para.3 of the Enforcement Order was enacted in line with this provision. Determining the scope of children who are eligible for child benefit by resorting to the criterion of the absence of the father is in itself reasonable. As a corollary, if the fact which corresponds to the absence of the father ceases to exist, it is prima facie reasonable to determine that, as a rule, there ceases to be a need to make them eligible for the benefit. The part in brackets basically provides for situations which coincide with the criterion of the absence of the father, and the enacting of this part is within the scope of discretion of the legislature of the enactor of the cabinet order, and is neither unconstitutional nor unlawful. 4. However, the above ruling of the original instance court cannot be upheld. The reasons are as follows. (1) Article 1-2, subpara.3 can be understood to have identified children conceived outside marriage as being eligible for child maintenance benefit and to have then expressed a clear legislative choice to exclude children who have been recognised by the father from this category. If this decision to exclude children who have been recognised by the father is found to be unconstitutional or unlawful, even if the provision as an inseparable whole is not found to be void, but merely the part concerning the exclusion is found to be void, it cannot be regarded as tantamount to the court legislating on the part which has not previously been the object of legislation. Therefore, it cannot be said that finding the part in brackets to be void and revoking the Decision are impermissible, on the ground that the court is performing a legislative function. (2) Then, whether or not the fact that the enactment of the part in brackets by the Cabinet in the Enforcement Order Article 1-2, subpara.3 is in excess of the scope of the delegation by Law shall be examined. The Law provides for the benefit of child maintenance benefit in order to ensure the stability of a family in which a child is brought up without the father sharing the household account and to facilitate the children's independence and thus aims to promote the welfare of the children (Art.1 of the Law). The Law does not make all the children brought up without a father sharing the household account eligible for a child maintenance benefit, but in subparas. 1 to 4 of Article 4, para.1, it establishes categories of children eligible for the benefit and in subpara.5, makes "other children who are in a similar state as those as provided in the preceding paragraphs and are determined as such in the cabinet order" eligible for the benefit. The scope of delegation resulting from this provision shall be determined by taking into consideration not only the wording, but also the purpose and goal of the Law, the reason why this provision provides for a certain category of children to be eligible for a child maintenance benefit and the balance between those who are eligible and those who are not eligible. The enactment of the Law was triggered by the argument that since, for those households without a father due to his death, a mother and child welfare pension is paid under the Law on National Pensions, as a matter of fairness, those households without a father for other reasons should benefit from a similar measure. Categories of children as provided by the subparagraphs of Article 4, para.1 of the Law, are not limited to children who do not have a father sharing the household account for reasons other than the father's death, but, in the light of the goals and purposes as provided by article 1 of the Law, it also provides for other categories of children who cannot be realistically expected to be sustained by the father as the breadwinner, i.e. children in a situation where there is no father in a marital relationship with the mother, or in a similar situation from the viewpoint of sustaining the child. Children conceived and born outside marriage are children without the father as a breadwinner, and fall within the category of children who cannot be expected to be sustained by the father. Article 1-2, subpara.3 in the main part, excluding the part in brackets, categorises illegitimately conceived children as children similar to those provided in Article 4, para.1, subparas.1 to 4, and is in accordance with the purpose of the delegation by the Law. On the other hand, Article 1-2, subpara.3 of the Enforcement Order includes the part in brackets which excludes children recognised by the father from those eligible for a child maintenance benefit. Admittedly, the recognition of an illegitimately conceived child creates a state where there is a statutory father, but it is evident that Article 4, para.1, subparas.1-4 of the Law does not intend to determine children who are eligible for the child maintenance benefit solely by reference to the existence or non-existence of a statutory father, nor by recognition, is a marital relation automatically formed with the mother after which the father becomes a breadwinner. Neither is there any guarantee that once the father recognises the child, a real support by him can be expected. Therefore, even if an illegitimately conceived child were recognised by the father, a situation similar to that as provided by Article 4, para.1, subparas.1-4 of the Law might continue to exist. Therefore, the provision of Article 1-2, subpara.3 of the Enforcement Order which, in the main part, provides that children in a similar situation as those under Article 4, para.1, subparas.1-4 of the Law are eligible for the child maintenance benefit but which, by virtue of the part in brackets, excludes illegitimately conceived children who have been recognised by the father, fails to balance between these children in the light of the goals and purposes of the Law, and is against the meaning of the delegation by the Law. (3) The judgment of the original instance court ruled that "children whose father has died" as provided by Article 4, para.1, subpara.2 of the Law, and "children whose fathers are not know whether they are dead or alive" as provided by subpara.4 of the same provision, cover categories of children who cannot be sustained by the father due to the absence of the father, and that Article 1-2, subpara.3 of the Enforcement Order provides for a situation which is in line with the provision of the Law including the part in brackets, and that the loss of eligibility for the benefit after recognition by the father is the same as in cases where those children eligible for the benefit under Article 4, para.1, subparas.1-4 of the Law lose the eligibility when an adopted father emerges or it is confirmed that the father is alive and the father ceases to be absent, regardless of whether he actually sustains the child or not. However, the death or the lack of information regarding the life or death of the father as provided in these subparagraphs categorise cases in which there is an absence of a breadwinning father, rather than a mere absence of a statutory father, and therefore the fact that the loss of eligibility for child maintenance benefit in cases where an adopted father emerges or it is confirmed that the father is alive after which there is no longer an absence of a breadwinning father and the loss of eligibility solely on the ground of the recognition by the father cannot be regarded as identical. This understanding coincides with the fact that a child born between an unmarried couple who had become eligible for the benefit under Article 4, para.1, subpara.1 of the Law after the dissolution of defacto marriage, does not lose the eligibility merely as a result of the recognition by the father. 5. As above, [Summary] the exclusion from the category of children eligible for child maintenance benefit of an illegitimately conceived child who was recognised by the father by the part in brackets of Article 1-2, para.3 of the Enforcement Order is against the goal of the delegation of the law, is against the law for exceeding the scope of delegation, and is void. Without ruling on the remaining grounds of the jokoku appeal, the Decision which was made on the basis of the part in brackets is unlawful. Therefore, the above ruling of the original instance court is against the law in its error of interpretation and application of the law, and it is obvious that this error affects the judgment. The argument of the jokoku appellant is with grounds, the judgment of the original instance court cannot but be quashed. As explained above, the judgment of the first instance court which acknowledged the claim of the jokoku appellant can be withheld in conclusion, and therefore, the koso appeal of the jokoku appellee shall be dismissed. Thus, the justices, except for the dissenting opinion of Justice MACHIDA Akira, unanimously rule as the main text of the judgment. The dissenting opinion of Justice MACHIDA Akira is as follows. I cannot concur with the majority opinion which found that the part in brackets is unlawful for exceeding the scope of delegation and therefore is void. The reasons are as follows. The majority opinion is of the view that Article 4, para.1, provides for categories of children to be eligible for the benefit who cannot expect actual support from a breadwinning father, that illegitimately conceived children are those without a breadwinning father, and that even as the result of recognition by the father, the father does not become a breadwinner of the household, and therefore, the part in brackets is against the law for being against the meaning of the delegation, and is void. However, as the majority opinion points out, the child maintenance benefit was introduced primarily because, for those households without a father due to his death, a mother and child welfare pension is paid under the Law on National Pensions, and as a matter of fairness, those households without a father for other reasons should benefit from a similar measure, because the deterioration of the economic situation of the child does not differ in each circumstance. Certain categories of children who are in a similar situation such as (i) children whose fathers have died, (ii) children with a father who is handicapped beyond a certain level (there are cases where the father becomes handicapped by illness or an accident), and (iii) children whose father is not know whether he is dead or alive are explicitly identified as those eligible for the benefit, and it is provided that those who are in a similar situation and are determined by the cabinet order are also eligible for the benefit. It is clear from the wording that the Law did not intend to make all children without a breadwinning father eligible for the benefit. This can also be substantiated by the fact that when the Law was adopted, the Social and Labour Committee of the Lower House requested that all children who do not benefit from a household account shared with the father should be made eligible for the benefit (it goes without saying that an attached resolution as such does not have any legal effect). It is evident in the light of the judgment of the Supreme Court that social security legislation which does not provide for the benefit of benefits to every child whose father does not share the household account, but only to those in special circumstances whose economic situation has deteriorated after e.g. the divorce of their parents, is not against the Constitution (Supreme Court, 1976 (Gyo-Tsu) No.30, Judgment of the Supreme Court, July 7, 1982, Minshu Vol.36, No.7, p.1235). If, as held in the majority opinion, this provision is understood to list categories of children who do not have a breadwinning father and makes them eligible for a benefit, it seems to be difficult to explain why illegitimately conceived children are not listed in Article 4, para.1. As above, the Cabinet is not under any obligation to make illegitimately conceived children eligible for the benefit when enacting a cabinet order delegated by Article 4, para.1, subpara.5. The reason why this provision has provided in a comprehensive and an abstract manner that those children who are in a similar situation as those provided in subparas. 1 to 4 and are determined by a cabinet order shall be eligible for the benefit is because the Law has left the determination of who is in a similar situation as provided in subparas. 1 to 4 in the cabinet order to the discretion of the Cabinet which enacts the cabinet order. If the Cabinet treats children recognised by the father and those not so recognised in a different manner when enacting the cabinet order which determines the children eligible for the benefit, if there is a reasonable ground for different treatment, it is within the scope of its discretion. Although they are all conceived children, those who are recognised by the father are entitled to a claim for support, while those who are not do not have such rights. Therefore, there is a reasonable ground in making those who have not been recognised by the father eligible for the benefit of child maintenance benefits which is part of the system of social welfare, and the part in brackets of Article 1-2, subpara.3 of the Enforcement Order is not against the meaning of the delegation by law. Even if the law is interpreted in this way, if a child who was recognised by the father is abandoned for a period of one year or more without interruption, and in other cases which fall under Article 4, para.1, subparas. 2 to 4, or Article 1-2, para.1 or 2, the child is eligible for the benefit on the same ground as children born to married parents, and therefore, these children do not suffer from any particular disadvantage. The majority opinion argues that it is imbalanced that while a child born to an unmarried couple who had become eligible for the benefit after the dissolution of the de facto marriage does not lose the eligibility merely by recognition by the father, illegitimately conceived children lose the eligibility by recognition. However, the law is applied as if there is a father in relation to a child born to parents in de facto marriage, regardless of recognition by the father. This does not mean that a father newly emerges by recognition, whereas in the case of illegitmately conceived children, the father emerges only by recognition. Therefore, even if the effect of the recognition differs in relation to the eligibility for the benefit, it does not mean that this arrangement is inconsistent. As above, child maintenance benefit is a benefit which is part of the social security system paid to a household of mother and a child whose economic situation has deteriorated due to divorce or other reasons, and the system should be administered in line with this purpose. Even if the child loses its eligibility for the benefit, if there is another ground of eligibility, it is not permissible to render a decision on the loss of eligibility. In cases such as the present case where, as the result of recognition by the father, the eligibility based upon article 1-2, subpara.3 was lost, there is still a possibility that the child may be eligible on the ground of subpara.1, and therefore, when determining the appropriateness of the decision to deny the administration of this system, it is necessary to inquire and examine whether there were grounds which fall under this subparagraph. Therefore, in order to further examine these points, the judgment of the original instance court shall be quashed and the case shall be remanded to the original instance court.

Justice IJIMA Kazutomo Justice FUJII Masao Justice MACHIDA Akira Justice FUKAZAWA Takehisa