1890 Civil Code
The "status of Japanese" as "national status"
By William Wetherall
First posted 1 October 2007
Last updated 1 June 2011
"National status" articles in 1890 Civil Code Gaining, losing, choosing, and recovering Japanese national status
"National status" articles in 1890 Civil Code
Provisions for "National standing [status]" or "Standing [status] as a national" (国民分限 kokumin bungen) were embedded in the old Civil Code, promulgated as Law No. 98 of 7 October 1890. However, this code -- modelled after the French civil code -- was never enforced, owing to controversy over its effects on family law.
of Chapter 2, titled "Acquisition of national status" (国民分限ノ取得 Kokumin bungen no shutoku), of the volume of articles on "Personal matters [affairs]" (人事編 Jinji hen), consisted of 12 articles (Articles 7-18 of the volume) which stipulated conditions for gain and loss of national status. At this point, forms and conditions of naturalization were to be covered by a special law.
A heavily revised Civil Code, structured more like German law, was finally promulgated and enforced in two parts on 27 April 1896 (Books I-III, Law No. 89) and on 21 June 1898 (Books IV-V, Law No. 9) -- without provisions on nationality. The entire Civil Code was enforced from 16 July 1898.
While the promulgated but unenforced 1890 Civil Code was being revamped, drafts of a comprehensive nationality law, covering also naturalization, went back and forth between the Imperial Diet and various committees. As with the civil code, the main concern with the nationality law was that it reflect Japanese family law. (Ninomiya 1983:226-230, Hosokawa 1990:182-184)
The articles on "national status" or "standing as a national" (国民分限) in the 1890 Civil Code were intended to satisfy Article 18 in the 1890 Constitution, which stipulated that the qualifications for being a "subject of Japan" (日本臣民 Nihon shinmin) would be determined by law. The articles equated "national standing [status]" with the "standing [status] of Japanese" (日本人ノ分限 Nihonjin no bungen), the term used in the 1873 proclamation on governing alliances of marriage and adoption between Japanese and aliens.
The term "national status" as used in the personal matters volume of the 1890 Civil Code had also been adopted for use in the 1890 Rules of Laws (Law No. 97). This law, promulgated on 6 October 1890, the day before the promulgation of the Civil Code (Law No. 98), was intended to facilitate the determination of applicable law in international private matters and other affairs which engendered conflicts of laws between states.
Both the Civil Code and the Rules of Laws were replaced by new statutes in 1898. When revising the Civil Code, the national status articles were separated from the code and entirely rewritten (though with essentially the same criteria for acquisition and loss of status), replete with naturalization and other provisions, in what would become the 1899 Nationality Law.
See 1899 Nationality Law for the development of the "National status" articles of the 1890 Civil Code in the context of existing and later status laws.
See Status and applicable law for details on the 1890 and 1898 Rules of Laws and later developments in both international and domestic laws of laws.
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"National status" articles in 1890 Civil Code The acquisition and loss of "the status of being Japanese" |
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Japanese textThe following Japanese text is a slightly reformatted version of the "National status" section of the 1890 Civil Code, as published by Hiraga Kenta in his 1950-1951 guide to the Nationality Law (Hiraga 1950:126-128, see Bibliography for particulars and review). The following transcription began with a version of the 1890 Civil Code I retrieved in September 2007 from the website of Ōkubo Teru (大久保輝), who was then (apparently) a graduate student at the College of Law of Nihon University (日本大学法学部). I then "aged" Okubo's reproduction by changing hiragana to katakana and Arabic numbers to kanji, and otherwise "restoring" the text to Hiraga's version. English translationsThe structural translation is mine (William Wetherall). |
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| 第2章 国民分限 | Chapter 2 National status |
| 第1節 国民分限の取得 | Section 1 Acquisition of national status |
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第7条 日本人の子は外国に於て生まれたるときと雖も日本人とす 父母分限を異にするときは父の分限を以て子の分限を定む 父の知れさるときは子は母の分限に従ふ 父母共に知れさるときは日本に於て生まれたる子は日本人とす若し其出生地の知れさるときは現に日本国内に在る者は日本人とす |
Article 7 The child of a Japanese, even when born in a foreign country, shall be Japanese. When the [national] statuses of the father and mother are different the status of the child shall be determined by the status of the father. When the father is unknown, [the status of] the child shall be according to the status of the mother. When both the father and mother are unknown a child who was born in Japan shall be Japanese. If when the place of its [the child's] birth is not known, a person who is actually within Japan shall be Japanese. |
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第8条 左の場合中の一に在る子は日本人の分限を選択することを得 第1 父が外国人たるも母の日本人たるとき 第2 外国人の子たるも日本に生まれたるとき 第3 日本人の分限を失ひたる者の子にして其分限喪失の後に生まれたる者なるとき 第4 帰化人の子にして成年者なるとき |
Article 8 A child who is among the cases to the left [below] can chose the status of Japanese. 1. When though the father is an alien the mother is Japanese. 2. When though a child of an alien [the child] was born in Japan. 3. When as the child of one who has lost the status of Japanese one was born after that loss of status. 4. When as the child of a naturalized person one is a person of full age. |
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第9条 日本人の分限を選択せんと欲する子は本国法律に従ひて成年に至りし時より一个年内に其意思を申述し且其申述より一个年内に住所を日本に定む可し 成年の後に至るて外国人の認知したる私出子は認知より又帰化人の子は帰化より一个年内に右の申述を為すことを得 |
Article 9 A child who desires to choose the status of Japanese shall state that [his/her] wish within one year from the time [he/she] reached full age in according with the laws of [his/her] home country. Moreover [the child] must establish a domicile in Japan within one year from that statement. Until after full age, [a child] shall be able to make the statement to the right [above] within one year, from the acknowledgment [in the event of] a child of private issue [of a Japanese woman] who has been acknowledged by an alien, or from the naturalization [in the event of] a child of a naturalized person [a person who became Japanese through naturalization]. |
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第10条 日本人と婚姻する外国の女は日本人の分限を取得し婚姻解消の後と雖も其分限を保有す |
Article 10 A woman of a foreign country who marries a Japanese shall acquire the status of Japanese. Even after dissolution of the marriage [such a woman] shall retain that status. |
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第11条 外国人は帰化に因りて日本人の分限を取得することを得其条件及ひ方式は特別法を以て之を規定す 帰化人の婦及ひ未成年の子は日本に住居を定めたるときは日本人の分限を取得す |
Article 11 An alien shall be able to acquire the status of Japanese by naturalization. As for those [naturalization] conditions and formalities, they shall be provided [stipulated, determined] by a special law. The wife or minor [not-yet-full-of-age] child of a naturalized person shall acquire the status of Japanese when [such person] has established a residence in Japan. |
| 第2節 国民分限の喪失及ひ回復 | Section 2 Loss and recover of national status |
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第12条 日本人は左の場合に於て其分限を失ふ 第1 任意に外国人の分限を取得したるとき 第2 日本政府の允許なくして外国政府の官職を受け又は外国の軍隊に入りたるとき |
Article 12 A Japanese shall lose that status in the cases to the left [below]. 1. When [one] has voluntarily [volitionally] acquired the status of an alien. 2. When, without permission of the government of Japan, [one] has accepted an official post of a foreign government, or has entered the military of a foreign country. |
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第13条 前条の場合に於て日本人の分限を失ひたる者其分限を回復せんと欲するときは日本政府の允許を得たる上帰国して其意思を申述し且一个年内に住所を日本に定むるときは其分限を回復す |
Article 13 When in the event of the previous article a person who has lost lost the status of Japanese desires to recover that status, the person upon gaining the approval of the government of Japan return [to Japan] and state that wish. [The person] shall recover that status when [he] has established a domicile in Japan within one year. |
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第14条 日本人の分限を失ひたる者の婦及ひ未成年の子は引続き日本に住居するに非されは日本人の分限を失ふ但婦は第15条第2項の規定に従ひ又未成年の子は第9条第1項の規定に従ひ其分限を回復することを得 |
Article 14 The wife or minor child of a person who has lost the status of Japanese, if they do not continue to reside in Japan, shall lose the status of Japanese. However, a spouse in accordance with the provisions [stipulations, determinations] of Article 15 paragraph 2, and a minor child in accordance with Article 9 paragraph 1, shall be able to recover that status. |
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第15条 外国人と婚姻する日本の女は日本人の分限を失ふ 然れとも婚姻解消の後日本に住居し又は復帰し且日本に住所を定むることを申述するときは其分限を回復す |
Article 15 A woman of Japan who marries an alien shall lose the status of Japanese. However [she] shall recover that status when after dissolution of the marriage [she] resides in Japan, or returns to Japan and states that [she] has established a domicile in Japan. |
| 第3節 国民分限変更の方式及ひ効力 | Section 3 Formalities and effects of changing national status |
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第16条 国民分限の変更に関する申述は日本に在りては住居地の身分取扱吏に外国に在りては日本公使館又は日本領事館に之を為す可し |
Article 16 Statements concerning change of national status must be made, when in Japan to a status handling official in the locality of residence, and when in a foreign country to a Japan[ese] legation [embassy] or a Japan[ese] consulate. |
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第17条 国民分限の変更は将来に非されは其効力を生せす |
Article 17 As for changes of national status, if [the above status actions] are not future [actions], [they] shall not engender those [the above] affects [== the above provisions on changes of national status will affect only future status actions]. |
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第18条 国民分限は出生の時を以て之を定む然れとも懐胎より出生まての間父又は母の分限に変更ありたるときは子は日本に住居する場合に限り日本人の分限を保有す |
Article 18 As for national status, it shall be determined at time of birth. However, when during [the period] from pregnancy to birth there has been a change in the status of the father or the mother, the child will retain the status of Japanese only in the event [the parent whose status changed] resides in Japan. |