Judicially for the first time in light of the Constitution, judgment will be made to revise the Civil Code: they are two provisions that stipulate ‘a married couple shall not be allowed to use two family names’ and ‘a woman shall be prohibited to re-marry in a period of six months after divorce’. The grand bench of the Supreme Court will issue a ruling to conclude whether these articles should be constitutional or not. Right judgment is requested as the current code produces inconveniences in today’s life.


SUPREME COURT MUST JUDGE RIGHTLY


Trial at Supreme Court after Plaintiffs Failed


Plaintiffs demand the state government in the two cases to indemnify for inconveniences inflicted due to legislative insufficiency. The claims were rejected for the both cases on the ground that the legislative deficiency could not be proven undoubtedly. The plaintiffs have appealed to the highest court to demand constitutional judgment.


The Supreme Court may review the rulings and the Civil Code provisions could be judged as unconstitutional. It entrusts claims to the grand bench when it is necessary to seek for a new interpretation of the Constitution or to change precedents.


The Tokyo District Court rejected in 2013 the case in which plaintiffs demanded permission to use two independent family names for a newly-married couple. The court said ‘the Constitution does not guarantee a married couple unmistakably to use their original surnames’ and turned down the claim of insufficient legislation. In the second trial, too, the Tokyo High Court dismissed in 2014, saying ‘married couples use a single family name as a custom, and it has been and is accepted by the majority of people’.


The other case is to review the period during which a woman is prohibited to get married after divorce. The Okayama District Court rejected the demand in the first trial in 2012, saying ‘the provision is set to avoid ambiguity of paternity and therefore the claim is not unequivocally unconstitutional’. The second trial at the Okayama Branch of the Hiroshima High Court in 2013 ordered that ‘the legislative organ should debate and decide on the period in compliance with changing social phenomena and in good coordination with the legislative objective’.


19 Years Have Passed


The Legislative Council, an advisory body for Minister of Justice, proposed officially a bill to revise Civil Code in February, 1996: the council recommended to introduce a system by which a married couple may use his/her original surname independently based on an agreement and to shorten the duration to 100 days from six months for a woman to remarry after divorce.


It has passed 19 years since the Council advised. The laws have been untouched due to a split of opinions inside the government. That is extraordinary. During these years in several foreign countries the civil code has been boldly amended. Reportedly, it is hard to find in the world a nation like Japan where the law forces a married couple to use a single family name.


Japan has been recommended by the international organizations, including the UN Committee on Elimination of Discrimination against Women, to revise the Civil Code. As for discrimination in inheritance against heirs born outside matrimony, the grand bench of the Supreme Court ruled in September, 2013, that the provisions are unconstitutional in light of the world trend and the counsel from international organizations. The judgment helped to rectify the provisions in the same year. The fact is still fresh to our memory.


Incidentally, the Abe administration is eager to encourage women’s performance. Without basic laws to guarantee women’s choices in a true sense and ensure women to be affluent and equal in the family relationships, it is tremendously difficult to play an active role and to be successful. Basic social environment supports women.


Right judgment from the Supreme Court is really expected.


March 17, 2015