Saitama v. State, 2004
Child of Interior woman and Chosen man did not lose nationality
By William Wetherall
First posted 18 July 2008
Last updated 21 June 2014
Overview
Origins
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Rulings
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Chronology
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Quality of opinions
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Quality of translations
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Sources, presentation, commentary
Main judgment
Particulars
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Findings
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Summary
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Relevant laws
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Main text
Overview of Saitama v. State, 2004
I am arbitrarily assigning the name "Saitama" to the unidentified person whose nationality was at issue in this case. "Saitama" is therefore to be understood as meaning the plaintiff in the original case heard before the Osaka District Court, the appellant in the appeal before the Osaka High Court, and the appellee in the final appeal second the Supreme Court -- the ruling of which is presented here.
Origins of case
Saitama was born in 1945 to an Interior woman and a Chosenese man who were not married.
Ruling in case
The ruling of a Petit Bench of the Supreme Court confirmed that Saitama had the nationality of Japan.
Chronology of case
Chronology of events leading up to Saitama v. State, 2004 | |
14 August 1945 |
X [Saitama] was born to an Interiorite (内地人 Naichijin) mother B who was not married to the Chosenese (朝鮮人 Chosŏnjin father A. The mother's principle register (本籍 honseki) was in Saitama prefecture and the father's principle register was in Chōsen Keishō Nandō (朝鮮慶尚南道 Kyŏngsangnamdo). |
8 September 1950 |
Father A acknowledged that X was his child. |
More to come. |
Forthcoming. |
Quality of opinions
The Supreme Court's judgment is in accordance with the law.
Quality of translations
Like most received English versions of court decisions in Japan, this one captures the general drift of the decision but misrepresents some of the key terms and phrases as metaphors in Japanese law.
Sources, presentation, and commentary
Received Japanese text of ruling
The Japanese text was extracted from a pdf file downloaded from the database accessible through the Japanese government's 裁判所 Courts in Japan website. Most case particulars and a summary were retrieved by a query using minimum case particulars. These particulars and the summary are also shown.
Received English translation
The English version was extracted from an html file retrieved by a query in the English section of the same Courts in Japan website. A disclaimer at the bottom of the translation, which is not attributed, reads "This translation is provisional and subject to revision."
Structural English translation
Because parts of the received translation do not accurately reflect the finer details and texture of the language of the Japanese ruling, I have occasionally shown structural translations of parts that are of special interest to me.
Formatting, commentary, and markup
I have divided the judgment into sections, and have somewhat reformatted the received texts and highlighted some words and phrases to facilitate analysis and commentary.
Underscoring
All underscoring in the text of the judgment is as received. Unless otherwise noted, the underscoring of corresponding parts of the received translation is mine. All underscoring in my own commentary is, of course, also mine.
Parentheses
Unless otherwise noted, all (parentheses) in the received text and translation are as received.
Square and angle brackets
All in-line [square brackets] and <angle brackets> -- and everything enclosed in such brackets -- are mine.
Structural translations and commentary
My own closer (structural) translations are generally shown in blue in cells below the received judgment and received translation. At times I have shown closer translations of words or short phrases in-line, between right and left → arrows ← following the amended text.
Editorial [clarifications] are shown in-line. Brief comments are sometimes boxed in the cells of the texts they relate to. Extended comments are generally shown in cells below the relevant texts.
Color highlighting
The received texts of the judgment and translation, and my own commentary, are shown in black. However, to facilitate commentary on the language of the ruling and/or its translation, I have highlighted specific words and phrases in various colors according to the following scheme, which includes in-line editorial clarifications and corrections.
Color | Original | Translation |
Background highlighting | ||
Blue | Corresponding parts of two or more texts selected for comparison | |
Yellow | Content added to received text to reconstruct a missing part | |
Pink | Transcription or scanning errors parenthetically corrected in-line (sic = in-line) | |
Graphic highlighting | ||
Blue | [ Clarification ] (in-line) | [ Clarification ] (in-line) |
→ My closer translation ← (in-line) My closer translation (boxed) |
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Green | Presumed true and correct copy of the language of the original text | May be too free and a bit off key but represents all elements or original |
国籍法 韓国 |
Nationality Law Nationality Act (unconventional) Law / Act of Nationality (unconventional) Korea (if "Empire of Korea" 1897-1910) |
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Purple | Problematic phrasing or usage in the language of the original text | Imprecise or awkward, incomplete or embellished, or otherwise inadequate |
国籍 韓国 朝鮮 内地 |
Citizenship → Nationality (as legal status) Korea → Republic of Korea (since 1948) Korea → Chōsen (as territory 1910-1952) Japan Proper → Interior (as territory) |
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Red | Incorrect phrasing or usage ※ | Misleading or incorrect |
放棄する 離脱する 朝鮮 |
renounce → abandon, relinquish renounce, separate from Korea → Chōsen (as territory) |
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Cyan | ※ When original is incorrect | Mistranslation is more correct than original |
日本と朝鮮との併合 ※ |
the annexation of Korea by Japan → the union of Japan and Chōsen |
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※ The example of incorrect 朝鮮 (Chōsen) being mistranslated Korea (韓国 Kankoku), thus "accidentally" correcting the usage in the judgement, can be seen in Kanda v. State 1961. 1. While 朝鮮 (Chōsen) in the judgment is factually incorrect, the correct translation is "Chōsen" because that is what the original text says. Because the translators conflate "Chōsen" (朝鮮) with "Korea" (韓国 Kankoku), they habitually translate "Chōsen" as "Korea" -- which constitutes a "mistranslation" that in effect accidentally "corrects" the factual error in the original -- i.e., a double negative becomes a positive. But two wrongs don't make a right. Translators are not supposed to "edit" the content of legal briefs. They might flag a problematic expression for comment in a footnote, but the translation itself should be faithful to the original. 2. Note that where the judgment precisely paraphrases the phrasal logic of the expression "Nik-Kan heigō" (日韓併合) [Japan-Korea union] as "X to Y to no heigō" (XとYとの併合) [the union between X and Y], the received translation incorrectly represents the syntactic logic of the paraphrase as "the annexation of Y by X" -- which constitutes an interpretation of the effects of the union, not its formal description in Japanese law -- which I underscore, because the court is making a legal, not political, argument. Historiographic "opinion" external to received text of the original judgment, and its attempt to deal with the letter and operation of Japanese law is irrelevant. A translator might say that the past is past. Treaties, laws, and ordinances of the past -- though no longer enforced -- may continue to have effect in court reviews of what I call "legacy" cases, which involve status actions in the past. |
2004 Supreme Court judgment in Saitama v. State Japanese text, English version, and commentary |
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Osaka High Court |
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原審裁判所名:大阪高等裁判所
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Court of original instance: Osaka High Court
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Supreme Court | |
事件番号:平成12(行ヒ)149
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Case number: Heisei 12 [2000] (Gyo-Hi) 149
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判示事項 | Matters addressed in ruling |
内地人女性の嫡出でない子であって国籍法の施行後に朝鮮人男性により認知されたものの平和条約発効後の国籍。 |
Judgment concerning whether a child who was born, out of wedlock, to a native Japanese mother and a Korean father and was recognized by the father after the enforcement of the Nationality Law loses Japanese nationality after the effectuation of the Peace Treaty. |
Structural translationNationality after peace treaty effectuation of a person who is a child who is not an issue of wedlock of an Interiorite woman and was acknowledged by a Chosenese man after the enforcement of the Nationality Law. |
裁判要旨 | Summary of the judgment | |
Received Japanese text | Received English translation | |
内地人女性の嫡出でない子であって国籍法の施行後に朝鮮人男性により認知されたものは,平和条約の発効によっても日本国籍を失わない。 |
A child who was born, out of wedlock, to a native Japanese mother and a Korean father and was acknowledged by the father after the enforcement of the Nationality Law dose (sic / does) not lose Japanese nationality despite the effectuation of the Peace Treaty. |
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Structural translationA person who is a child not of wedlock of an Interiorite woman and was acknowledged by a Chosenese man after enforcement of the Nationality Law, shall not lose Japan's nationality even with effectuation of the Peace Treaty.
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参照法条 | Relevant laws |
Received Japanese text | Received English translation |
憲法10条,共通法(大正7年法律第39号)3条,旧国籍法(昭和25年法律第147号による廃止前のもの)23条,国籍法(昭和59年法律第45号による改正前のもの)8条,国籍法(昭和59年法律第45号による改正前のもの)9条, 国籍法(昭和27年法律第268号によ改正前のもの)10条, 日本国との平和条約2条(a)項 |
Article 10 of the Constitution, Article 3 of the Common Law (Law No. 39 of 1918), Article 23 of the Old Nationality Law (before abolishment by Law No. 147 of 1950), Articles 8 and 9 of the Nationality Law (before amendment by Law No. 45 of 1984), Article 10 of the Nationality Law (before amendment by Law No. 268 of 1952), and Article 2(a) of the Treaty of Peace with Japan |
Articles cited in above references |
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The list of references shown on the Courts in Japan website appeared to be incomplete. The purple part of the list is a restoration based on the list in the received English translation. As the listed provisions were not included in the received Japanese judgment, I have provided them from other sources. |
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憲法10条 日本国民たる要件は、法律でこれを定める。 |
Article 10 of the Constitution The conditions necessary for being a Japanese national shall be determined by law. |
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The received translation is that of the standard English version of the 1947 Constitution. Structural translationAs for the conditions to be a national of Japan, [the state shall] determine these by law.
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共通法(大正7年法律第39号)3条 一ノ地域ノ法令ニ依リ其ノ地域ノ家ニ入ル者ハ他ノ地域ノ家ヲ去ル 2 一ノ地域ノ法令ニ依リ家ヲ去ルコトヲ得サル者ハ他ノ地ノ家ニ入ルコトヲ得ス |
Article 3 of the Common Law (Law No. 39 of 1918) [1.] A person who enters a family in a region under the law of the region shall withdraw from a family in another region. 2. A person who may not withdraw from a family in a region under the law of the region may not enter a family in another region. |
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Structural translation
[1.] A person who on account of [pursuant to] the laws of a territory enters a [corporate] family of that territory will leave the [corporate] family of another territory.
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旧国籍法(昭和25年法律第147号による廃止前のもの)23条 日本人タル子力認知ニ因リテ外国ノ国籍ヲ取得シタルトキハ日本ノ国籍ヲ失フ但日本人ノ妻、入夫又ハ養子ト為リタル者ハ此限ニ在ラス |
Article 23 of the Old Nationality Law (before abolishment by Law No. 147 of 1950) A Japanese child shall lose Japanese nationality when he has acquired foreign nationality due to acknowledgement; provided that, however, this shall not apply if the child becomes a wife, husband, or adopted child of a Japanese national. |
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1929 received translation If a child who is a Japanese acquires foreign nationality by acknowledgment, he or she loses Japanese nationality. But his rule does not apply to a person who has become the wife, the nyufu, or the adopted child of a Japanese. Structural translationWhen a child who is Japanese has acquired the nationality of a foreign country due to [become of] recognition [the child] will lose the nationality of Japan. However, as for one [such a person] who has become the wife, the incoming husband, or an adopted child of a Japanese this will not apply. [ == Provided, however, that this will not apply when one [such a person] has become the wife, incoming husband, or an adopted child of a Japanese.] |
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国籍法(昭和59年法律第45号による改正前のもの)8条 日本国民は、自己の志望によつて外国の国籍を取得したときは、日本の国籍を失う。 |
Article 8 of the Nationality Law (before amendment by Law No. 45 of 1984) A Japanese national shall lose Japanese nationality when he has acquired foreign nationality of his own free will. |
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1950 standard translation A Japanese national shall lose his or her Japanese nationality when he or she acquires a foreign nationality at his or her own wish. Structural translationA Japan national, when having acquired the nationality of a foreign country due to [because of] one's own volition, will lose the nationality of Japan. |
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国籍法(昭和59年法律第45号による改正前のもの)9条 外国で生まれたことによつてその国の国籍を取得した日本国民は、戸籍法(昭和二十二年法律第二百二十四号)の定めるところにより日本の国籍を留保する意思を表示しなければ、その出生の時にさかのぼつて日本の国籍を失う。 |
Article 9 of the Nationality Law (before amendment by Law No. 45 of 1984) A Japanese national who was born in a foreign country and acquired nationality of the country by birth shall lose Japanese nationality retrospectively from the time of the birth, unless he declares his intention to retain his Japanese nationality in accordance with the provisions of the Family Registration Law (Law No. 224 of 1947). |
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1950 standard translation A Japanese national who has acquired a foreign nationality by reason of his or her birth in the foreign country shall lose Japanese nationality retroactively as from the time of birth, unless the Japanese national manifests his or her volition to reserve his or her Japanese nationality according to the provisions of the Family Registration Law (Law No. 224 of 1947). Structural translationA Japan national who due to [because of] having been born in a foreign country has acquired the nationality of that country, due to [pursuant to] determinations of the Family Registration Law (Law No. 224 of 1947) will lose the nationality of Japan retroactive to the time of [the person's] birth, if [the person] has not indicated a wish to reserve the nationality of Japan. |
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国籍法(昭和27年法律第268号によ改正前のもの)10条 [第十条] 外国の国籍を有する日本国民は、日本の国籍を離脱することができる。 2 国籍を離脱するには、法務総裁 法務大臣に届け出なければならない。 3 国籍を離脱した者は、日本の国籍を失う。 |
Article 10 of the Nationality Law (before amendment by Law No. 268 of 1952) 1. A Japanese national who has foreign nationality may renounce his Japanese nationality. 2. Such person who intends to renounce his Japanese nationality shall make notification to the Director-General of Justice. 3. Such person who has renounced his Japanese nationality shall lose Japanese nationality. |
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1950 standard translation [Article 10] A Japanese national having a foreign nationality may renounce his or her Japanese nationality. 2. The renunciation of nationality shall be made by notifying to the Attorney-General. 3. One who has renounced his or her nationality shall lose Japanese nationality. Structural translation
[Article 10] A Japan national who possesses the nationality of a foreign country, will be able to renounce the nationality of Japan.
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日本国との平和条約2条(a)項 日本国は,朝鮮の独立を承認して,済州島,巨文島及び欝陵島 [= 鬱陵島] を含む朝鮮に対するすべての権利,権原及び請求権を放棄する。 |
Article 2 paragraph (a) of the Peace Treaty with Japan (a) Japan (sic) recognizing the independence of Korea, renounces all rights (sic), titles (sic) and claims (sic) to Korea, including the islands of Quelpart, Port Hamilton and Dagelet. |
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Official English version (a) Japan, recognizing the independence of Korea, renounces all right, title, and claim to Korea, including the islands of Quelpart, Port Hamilton and Dagelet. Structural translation of Japanese version(a) Japan, recognizing the independence of Chosen, abandons all rights, titles and demand rights [right to make demands, claims] toward Chosen including the Saishū islands [K. Cheju-do] , Kyūbun islands [K. Kŏmun-do, aka E. Port Hamilton] and Utsuryō islands [K. Ullŭng-do, aka F. Dagelet].
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主文 | Main text of the judgment | ||||
Received Japanese text | Received English translation | ||||
本件上告を棄却する。 |
The jokoku appeal shall be dismissed. |
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理由 | Reasons | ||||
上告代理人山崎潮ほかの上告受理申立て理由について 1 原審の適法に確定した事実関係等の概要は,次のとおりである。 [1] (1) 被上告人は,昭和20年8月14日,朝鮮慶尚南道に本籍を有する朝鮮人男性Aを父とし,当時埼玉県に本籍を有した内地人女性Bを母とする非嫡出子として出生し,日本人母の子として日本国籍を取得した。 |
Concerning the grounds for the petition for accepting the jokoku appeal argued by the attorney for jokoku appellant YAMAZAKI Ushio and other attorneys. 1. The outline of the facts legally determined by the judgment of the second instance is as follows. [1] (1) The jokoku appellee was born, out of wedlock, on August 14, 1945, to a Korean father, A, who has a permanent domicile in Gyeongsangnam-do, Korea, and a Japanese mother, B, who had at that time a permanent domicile in Saitama, Japan. The jokoku appellant acquired Japanese nationality as a child of a Japanese mother. |
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[1] Structural translationThe appellee [in the case appealed to this court], on 14 August 1945, was born as a child out of wedlock -- the father being a Chosenese man A who possesses a principle register in Keishō Nandō [Kyŏngsangnamdo] in Chosen, the mother being an Interiorite woman B who at the time possessed a principle register in Saitama prefecture -- and acquired Japan nationality as a child of the Japanese mother.
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(2) Aは,昭和25年9月8日,被上告人を認知した(以下,この認知を「本件認知」という。)。 [2] (3)ア 昭和27年4月28日に日本国との平和条約(以下「平和条約」という。)が発効する前の我が国においては,内地,朝鮮,台湾等の異法地域に属する者の間で身分行為があった場合,その準拠法は,共通法(大正7年法律第39号)2条2項によって準用される法例(平成元年法律第27号による改正前のもの)の規定によって決定されることとなり,朝鮮人父が内地人母の子を認知した場合の認知の効力については,認知者である父の属する地域である朝鮮の法令が適用されることとされていたが,朝鮮民事令(明治45年制令第7号)1条及び11条によれば,旧民法(昭和22年法律第222号による改正前のもの)827条2項によることとされ,子は,朝鮮人父の認知により,その庶子となるものとされていた。 |
(2) On September 8, 1950, A acknowledged the jokoku appellee (this acknowledgment shall hereinafter be referred to as the "Acknowledgement"). [2] (3) (a) In Japan, before the effectuation of the Treaty of Peace with Japan (hereinafter referred to as the "Peace Treaty") on April 28, 1952, in cases where an act relating to the status of person was conducted between people who belonged to regions where different laws were applicable, e.g. Japan, Korea, and Taiwan, the law applicable to the act should be determined in accordance with the provisions of the Law Concerning Application of Laws in General (before amendment by Law No. 27 of 1989), which applied mutatis mutandis under Article 2, para. 2 of the Common Law (Law No. 39 of 1918), and therefore the effect of an acknowledgement by a Korean father of a child born to a native Japanese mother was supposed to be governed by a law of Korea, the region to which the acknowledging person (the father) belonged. Articles 1 and 11 of the Decree on Civil Affairs in Korea (Decree No. 7 of 1912) provided that Article 827, para. 2 of the Old Civil Code (before amendment by Law No. 222 of 1947) should be applicable to the effect of such acknowledgement, and in consequence, a child born to a Korean father and a native Japanese mother was supposed to be an illegitimate child of the father by his acknowledgement. |
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[2] Structural translation(3) (a) In our country before the Peace Treaty with Japan (hereafter called "Peace Treaty") came into effect on 28 April 1952, in the event there was a status action between persons affiliated with different legal territories, namely the Interior, Chosen, Taiwan et cetera, its applicable law was determined in accordance with provisions in the Rules of Laws (before revision by Law No. 27 of 1988), which is applied mutatis mutandis in accordance with Article 2 paragraph 2 of the Common Law (Law No. 39 of 1918); and with respect to the effect of acknowledgement in the event a Chosenese father acknowledged the child of an Interiorite mother, the laws and ordinances of Chosen, being the territory with which the acknowledging father is affiliated, were taken as [the law] to be applied, and in accordance with Article 1 paragraph 11 of the Chosen Civil Matters Ordinance (Decree No. 7 of 1912), [the applicable law] was taken to be Article 827 paragraph 2 of the Old Civil Code (before revision by Law No. 222 of 1947), and the child, due to the acknowledgement of the Chosenese father, was held to be one who had become his paternally-acknowledged out-of-wedlock child.
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また,朝鮮民事令11条により,朝鮮人の親族相続に関しては,前記認知に関する規定のように別段の規定があるものを除き,朝鮮慣習が適用されることとされており,朝鮮慣習によれば,朝鮮人父の認知によりその庶子となった子は,戸主の同意を要することなく,当然に朝鮮人父の家に入ることとされていた。 したがって,朝鮮人父が内地人母の子を認知した場合には,子は,上記のとおり庶子となって朝鮮人父の家に入り,父の朝鮮戸籍に入籍することとされていた。 イ 共通法3条1項は,「一ノ地域ノ法令ニ依リ其ノ地域ノ家ニ入ル者ハ他ノ地域ノ家ヲ去ル」とし,同条2項は,「一ノ地域ノ法令ニ依リ家ヲ去ルコトヲ得サル者ハ他ノ地域ノ家ニ入ルコトヲ得ス」としており,異法地域に属する者の間で身分行為があった場合,一の地域の法令上入家という家族法上の効果が発生するときには,他の地域においても原則としてその効果を承認して去家の原因とすることを定めていた。その結果,戸籍に関しても,一の地域の戸籍から他の地域の戸籍への移動という効果を生ずることとされていた。したがって,後記の国籍法改正による影響を考慮しない限り,内地人母の子が,朝鮮人父の認知によりその庶子となり,朝鮮人父の家(朝鮮戸籍)に入る場合は,内地戸籍から除籍されることとなる。 [3] ウ 平和条約の発効により,我が国が,朝鮮の独立を承認して,朝鮮に対するすべての権利,権原及び請求権を放棄したことに伴い,それまで日本の国内法上で朝鮮人としての法的地位を有していた人,すなわち,朝鮮戸籍令(大正11年朝鮮総督府令第154号)の適用を受け朝鮮戸籍に登載されるべき地位にあった人は,元来日本人で朝鮮人との身分行為によって朝鮮戸籍に入籍すべき事由の生じた人を含め,朝鮮国籍を取得し,日本国籍を喪失したものと解されている(最高裁昭和30年(オ)第890号同36年4月5日大法廷判決・民集15巻4号657頁,最高裁昭和33年(あ)第2109号同37年12月5日大法廷判決・刑集16巻12号1661頁,最高裁昭和38年(オ)第1343号同40年6月4日第二小法廷判決・民集19巻4号898頁,最高裁平成6年(行ツ)第109号同10年3月12日第一小法廷判決・民集52巻2号342頁参照)。 |
Article 11 of the Decree on Civil Affairs in Korea also provided that Korean custom should be applicable to matters concerning relatives and inheritance of Korean people, except for those otherwise provided such as acknowledgement. According to Koran custom, a child who became an illegitimate child of a Korean father by his acknowledgment should necessarily enter the Korean father's family without the consent of the head of the family. Therefore, a child who was born to a Korean father and a native Japanese mother and was acknowledged by the father should become the illegitimate child of the Korean father as well as a member of the father's family, thereby entering the father's Korean family register. (b) Article 3, para. 1 and 2 of the Common Law provided as follows: "A person who enters a family in a region under the law of the region shall withdraw from a family in another region"; "A person who may not withdraw from a family in a region under the law of the region may not enter a family in another region." Under these provisions, where an act relating to the status of person was conducted between people who belong to regions where different laws were applicable, if such act brought about an effect under a family law of one of the regions, i.e. entry in a family, the effect of the act should in principle be recognized in the other region and should result in the withdrawal from a family in the other region. Consequently, such act was supposed to bring about the effect of transferring a person from a family register in one of the regions to a family register in the other region. Therefore, without taking into account the effect of the amendment of the Nationality Law discussed later, where a child born to a native Japanese mother and a Korean father has been acknowledged by the father and entered the father's Korean family as an illegitimate child, the child shall be excluded from the Japanese family register. [3] (c) Upon the effectuation of the Peace Treaty, Japan recognized the independence of Korea and renounced all rights, titles and claims to Korea. In consequence, people who had previously had legal status as Korean people under Japanese laws -- or more specifically, those who had been governed by the Decree on Korean Family Registration (Korean Governor Office Decree No. 154 of 1922) and who should be entered in Korean family registers, including those who became (sic = came) to have a reason to be entered into Korean family register due to an act relating to the status of person that was conducted between Japanese people and Korean people -- are regarded as having acquired Korean nationality while losing Japanese nationality (See 1955(O)No. 890, judgment of the Grand Bench of the Supreme Court of April 5, 1961, Minshu Vol. 15, No. 4, at 657, 1958(A)No. 2109, judgment of the Grand Bench of the Supreme Court of December 5, 1962, Keishu Vol. 16, No. 12, at 1661, 1963(O)No. 1343, judgment of the Second Petty Bench of the Supreme Court June 4, 1965, Minshu Vol. 19, No. 4, at 898, 1994(Gyo-Tsu)No. 109, judgment of the First Petty Bench of the Supreme Court of March 12, 1998, Minshu Vol. 52, No. 2, at 342). |
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[3] Structural translationConcomitant with the matter [circumstances] in which, due to the effectuation of the Peace Treaty, our country, recognizing the independence of Chosen, abandoned all right, title, and claim toward Chosen, persons who until then had possessed legal status as a Chosenese under the domestic laws of Japan -- namely, persons who had been subject to the application of the Chosen Family Register Ordinance (1922 Government-General of Chosen Decree No. 154) and had been of a status that would be recorded in a Chosen family register, including persons who originally had been Japanese and for whom cause occurred to enter into a Chosen family register due to a status action with a Chosenese -- are understood to be those who had acquired Chosen nationality, and lost Japan nationality . . . .
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エ 旧国籍法(明治32年法律第66号)23条本文は,「日本人タル子カ認知ニ因リテ外国ノ国籍ヲ取得シタルトキハ日本ノ国籍ヲ失フ」と規定していたが,昭和25年7月1日から国籍法(昭和25年法律第147号)が施行され,その附則により旧国籍法が廃止された。 国籍法は,日本国籍の喪失については,自己の志望により外国籍を取得した場合(昭和59年法律第45号による改正前の8条),外国で生まれたことによってその国の国籍を取得した日本国民が戸籍法の定めるところにより日本の国籍を留保する意思を表示しなかった場合(昭和59年法律第45号による改正前の9条),外国の国籍を有する日本国民が届出により日本の国籍を離脱する場合(昭和27年法律第268号による改正前の10条)を挙げるのみで,認知等の身分行為により日本国籍を失う旨の規定は設けられなかった。 2 原審は,内地戸籍から除籍されて朝鮮戸籍に入籍することは,後の平和条約の発効に伴い日本国籍を失うという結果をもたらすものであるところ,昭和25年7月1日に国籍法が施行されて,日本人たる子が外国人父の認知という一方的意思表示によっては日本国籍を失わないこととされた後においては,朝鮮人父に認知された内地人母の子は,共通法3条2項にいう「一ノ地域ノ法令ニ依リ家ヲ去ルコトヲ得サル者」に該当し,朝鮮戸籍に入籍す驍ラき者には該当せク,平和条約の発効によっても日本国籍を喪失しないとして,被上告人の日本国籍有するこニの確認を求める請求を認容すべきものとした。 3 当裁判所の判断は,次のとおりである。 [4] 共通法3条は,内地,朝鮮,台湾等の地域ごとに,適用法令が異なるという当時の制度を前提として,旧国籍法5条,6条,18条,19条,23条等の内容に準じていわゆる地域籍の得喪を定める規定であり,地域籍は,当時の法制の下において,上記の地域ごとに国籍に準ずる役割を果たしていた。 |
(d) The main text of Article 23 of the Old Nationality Law (Law No. 66 of 1899) provided as follows: "A Japanese child shall lose Japanese nationality when he has acquired foreign nationality due to acknowledgement." The Old Nationality Law was abolished under the supplementary provisions of the Nationality Law (Law No. 147 of 1950) that came into force on July 1, 1950. As causes of the loss of Japanese nationality, the New Nationality Law only prescribed cases where a Japanese national acquired foreign nationality of his own free will (Article 8 of the Nationality Law before amendment by Law No. 45 of 1984), where a Japanese national who was born in a foreign country and acquired nationality of the country by birth failed to declare his intention to retain his Japanese nationality in accordance with the provisions of the Family Registration Law (Article 9 of the Nationality Law before amendment by Law No. 45 of 1984), and where a Japanese national who has foreign nationality renounced his Japanese nationality by making notification (Article 10 of the Nationality Law before amendment by Law No. 268 of 1952), and the Law did not include any provision that regards an act relating to the status of person, such as an acknowledgment, as a cause of the loss of Japanese nationality. 2. The court of the second instance upheld the jokoku appellee's claim for confirmation that the jokoku appellee had Japanese nationality, on the following grounds: the entry into a Korean family register after the exclusion from a Japanese family register would result in the loss of Japanese nationality upon the subsequent effectuation of the Peace Treaty; however, in accordance with the Nationality Law that came into force on July 1, 1950, a Japanese child shall not lose Japanese nationality by an acknowledgement, the father's unilateral declaration of intent; in consequence, a child who was born to a native Japanese mother and a Korean father and acknowledged by the father shall fall under the category of "a person who may not withdraw from a family in a region under the law of the region" set forth in Article 3, para. 2 of the Common Law and shall not fall under the category of a person who is to enter a Korean family register, and therefore the child shall not lose Japanese nationality despite the effectuation of the Peace Treaty. 3. The Supreme Court makes the following judgment. [4] Article 3 of the Common Law, based on the institutional arrangement at that time in which different laws were applicable depending on regions, e.g. Japan, Korea, and Taiwan, prescribed the acquisition or loss of regional registry in accordance with the provisions of Articles 5, 6, 18, 19, 23 of the Old Nationality Law. Under the laws of that time, regional registry served as quasi-nationality in individual regions. |
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[4] Structural translationArticle 3 of the Common Law is a provision that -- presuming the system at the time, namely in which applied laws and ordinances are different in each of the territories of the Interior, Chosen, Taiwan et cetera -- determines acquisition and loss of so-called territoriality in conformity with the content of Article 5, Article 6, Article 18, Article 19, Article 23 et cetera of the Old Nationality Law, and territoriality, under the legal system at the time, played a role in each of the above territories that conforms with nationality.
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前記のとおり,旧国籍法23条本文は「日本人タル子カ認知ニ因リテ外国ノ国籍ヲ取得シタルトキハ日本ノ国籍ヲ失フ」と規定していたところ,昭和25年7月1日施行の国籍法は,自己の意思に基づかない身分行為によって日本国籍を失うという法制は採用せず,旧国籍法23条の規定も廃止した。地域籍の得喪が,旧国籍法の前記規定に準じて定められていたことに照らすと,上記のような法制の変動の結果,上記の国籍法施行日以降においてされた親の一方的な意思表示による認知は,もはや地域籍の得喪の原因とはならなくなったものというほかはなく,朝鮮人父によって認知された子を内地戸籍から除籍する理由はなくなったものというべきである。 [5] 昭和25年12月6日付け法務府民事局長通達「朝鮮又は台湾と内地間における父子の認知について」は,「標記の件に関する従前の内地における戸籍の取扱については,旧国籍法第5条第3号,同法第23条,戸籍法第22条及び同法第23条の各規定の精神に則り,内地人男が朝鮮,台湾に本籍を有する女の出生した子を認知した場合は,子は内地に新戸籍を編製し,また,朝鮮,台湾に本籍を有する男が内地人女の出生した子を認知した場合は,子は内地の戸籍から除くこととされていた。右戸籍の取扱は,今後はこれを改め,前記各場合の認知によっては子の戸籍に変動を生じないこととした。」と定めているが,これは,前記の説示と同じ趣旨の下に,地域籍についても,朝鮮又は台湾と内地間における父子の認知に関する従前の取扱いを新しく施行された国籍法の趣旨に準じた取扱いに改めたものである。そうすると,上記民事局長通達の取扱いを,同通達発出日の昭和25年12月6日以降の認知に限定する理由はなく,前記説示のように,国籍法施行の同年7月1日以降の認知についても,同様の取扱いを行うべきである。そうすることによって,法の下の平等の精神にも沿うことになるのである。 |
As mentioned above, the main text of Article 23 of the Old Nationality Law provided that "a Japanese child shall lose Japanese nationality when he has acquired foreign nationality due to acknowledgement." The New Nationality Law, which came into force on July 1, 1950, ruled out the system in which a Japanese national would lose Japanese nationality due to an act relating to the status of person that was not relevant to his intention, and abolished the provision of Article 23 of the Old Nationality Law. Considering that the acquisition or loss of regional registry was prescribed in accordance with that provision of the Old Nationality Law, we can only say that, as a result of such changes in the legal system, an acknowledgement made by father as his unilateral declaration of intent after the date of enforcement of the New Nationality Law is no longer a cause of the acquisition or loss of regional registry. Therefore, there is no reason to exclude a child acknowledged by a Korean father from a Japanese family register. [5] The notification of the Director of the Civil Affairs Bureau of the Ministry of Justice as of December 6, 1950, titled "Acknowledgment of a Child of a Native Japanese Person and a Korean or Taiwanese Person" provided as follows: "Conventionally, the family registration in the case described in the title of this notification has been handled in Japan in accordance with the purport of the provisions of Article 5, sub-para. 3 and Article 23 of the Old Nationality Law and Articles 22 and 23 of the Family Registration Law: a child who was born between a native Japanese father and a mother having a permanent domicile in Korea or Taiwan and was acknowledged by the father shall be included in the family register in Japan; whereas a child who was born between a father having a permanent domicile in Korea or Taiwan and a native Japanese mother and was acknowledged by the father shall be excluded from a Japanese family register. In the future, however, this handling of the family register shall be altered, and such acknowledgment shall not bring about any change in the child's family register." In other words, this notification, based on the same view as that discussed above, instructed that the treatment of regional registry for a child who was born between native Japanese person and a Korean or Taiwanese person and was acknowledged by the father should be altered in line with the purport of the newly implemented Nationality Law. Assuming that, there is no reason to apply the notification of the Director of the Civil Affairs Bureau only to acknowledgments made on or after December 6, 1950 (the date of the notification), and as mentioned above, acknowledgements made on or after July 1, 1950, but before December 6, 1950, should also be handled in accordance with the Nationality Law. By doing so, the constitutional guarantee of equality before law can be fulfilled. |
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[5] Structural translationThe notification of the Director-General of the Civil Affairs Bureau of the Attorney General's Office dated 6 December 1950, "Regarding father-child acknowledgements between Chosen or Taiwan and the Interior", determines [stipulates] that: "With regard to hitherto treatment of family registers in the Interior concerning the matter of the heading, it has conformed to [followed] the spirit of the respective provisions of Article 5 paragraph 3 of the Old Nationality Law, Article 22 of the same law, and Article 22 of the Family Register Law and Article 23 of the same law, and it has been held that, in the event an Interiorite man had acknowledged a child born to a woman who possesses a principle register in Chosen [or] Taiwan, as for the child, [a local registrar in the Interior] would create a new family register [for it] in the Interior, and in the event a man who possesses a principle register in Chosen [or] Taiwan had acknowledged a child born to an Interiorite woman, as for the child, [a local registrar in the Interior] would remove [it] from the family register of the Interior. As for the right [= the above = such hitherto] family register treatment, [the Ministry of Justice] has decided that hereafter [it] will change this [treatment], and that due to the acknowledgements of each aforesaid event [such acknowledgements] will not engender a change in the family register of the child.", . . . .
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以上のとおり,【要旨】国籍法施行後に朝鮮人父から認知された子は,内地の戸籍から除籍される理由がないから,平和条約の発効によっても日本国籍を失うことはないと解するのが相当である。そうすると,被上告人は,平和条約の発効後も日本国籍を有するのであり,これと結論を同じくする原審の判断は,是認することができる。所論引用の判例(最高裁昭和36年(オ)第1390号同38年4月5日第二小法廷判決・裁判集民事65号437頁)は,昭和27年2月12日に台湾人男と自己の意思に基づき婚姻した内地人女の平和条約発効後における日本国籍喪失に関するもので,本件とは事案を異にする。論旨は採用することができない。 4 よって,裁判官全員一致の意見で,主文のとおり判決する。 裁判長裁判官 甲斐中辰夫 裁判官 横尾 和子 裁判官 泉 德治 裁判官 島田 仁郎 裁判官 才口千 晴 |
For these reasons, it is reasonable to consider that there is no reason to exclude a child who was acknowledged by a Korean father after the enforcement of the New Nationality Law from a Japanese family register and therefore the child will not lose Japanese nationality despite the effectuation of the Peace Treaty. Assuming that, the jokoku appellee should be deemed to continues to have Japanese nationality even after the effectuation of the Peace Treaty, and the judgment of the second instance that goes along with this reasoning can be accepted. The judicial precedent cited by the jokoku appellant (1961(O)No. 1390, judgment of the Second Petty Bench of the Supreme Court April 5, 1963, Saibanshu Minji No. 65, at 437) relates to the case in which a native Japanese woman who married of her own will to a Taiwanese man on February 12, 1952, lost Japanese nationality after the effectuation of the Peace Treaty, which is of a different type from this case. The jokoku appellant's argument cannot be accepted. 4. Therefore, the judgment was rendered in the form of the main text by the unanimous consent of the Justices. Presiding Judge Justice KAINAKA Tatsuo Justice YOKOO Kazuko Justice IZUMI Tokuji Justice SHIMADA Niro Justice SAIGUCHI Chiharu (This translation is provisional and subject to revision.) |