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Decision on the share in the inheritance of an illegitimate child

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Court/Judicial body: Supreme Court of Japan
Date: July 5, 1995 CRC
Provisions: Article 2: Non-discrimination
Domestic provisions:Constitution (Japan) ( Article 14: Equality)

Case summary

Background: In the absence of a will, the Civil Code (Japan) dictates who will inherit a deceased person’s assets. Where the deceased person had children born out of wedlock as well as children born within a marriage, Article 900 of the Civil Code provides that a child born out of wedlock is end to only half of the share in the estate that a legitimate child is end to receive. A lawsuit was brought claiming that Article 900 unreasonably discriminates against children born out of wedlock in violation of Article 14 of the Constitution (Japan), which provides for equal treatment under law, and should therefore be null and void.

Issue and resolution: Inheritance; discrimination based on parents’ marital status. The Court upheld the provision of the Civil Code which states that the share of inheritance of a child who is born outside of wedlock is half that of a child born within marriage.

Court reasoning: Article 900 is not unreasonably discriminatory in violation of Article 14 of the Constitution because its cannot be regarded as excessively unreasonable in relation to the reasons behind its enactment. The purpose of the different rules for inheritance is to respect the status of legal marriage and children born within marriage, while also providing protection for children born outside of marriage.
Dissenting opinion: The Provision unreasonably discriminates against children born out of wedlock in violation of Article 14 of the Constitution and should be null and void. Discrimination on the grounds of the parents’ marital status at birth, for which the child is in no way responsible, exceeds the purpose of the law (i.e., the protection of marriage). Furthermore, Article 13 of the Constitution requires that “all people are respected as individuals” and Article 24 provides that “on matters concerning inheritance and family, laws should be enacted upon the basis of the dignity of individuals and the essential equality of men and women.”

Excerpt citing CRC and other relevant human rights Concurring opinion of Justice Katsuya Onishi: 3. Changes in the international environment surrounding Japan cannot be overlooked either. Article 24 of the International Covenant on the Civil and Political Rights (Treaty No.7, 1979) provides that all children have the right to measures for the protection needed for their status as minors provided by the family, society, or the state without any discrimination by birth. Article 26 provides that the law guarantees equal and effective protection to all, against discrimination on any grounds including birth or other status. Article 2 of the Convention on the Rights of Child (Treaty No.6,1994) provides that children are guaranteed that the rights as provided by the Convention are respected and guaranteed without discrimination, regardless of the birth or other status. Furthermore, by the 1960s, triggered by the increase in the number of illegitimate children, a majority of European had amended the law in order to make the share of inheritance of the illegitimate child equal to that of a legitimate child. Although there are in which, because of a strong tradition for the protection of the legitimate family, amendment of the law for equal treatment has yet to be adopted, there are also which, despite that fact that full equal treatment is not realised, equal treatment is pursued while balancing it with the rights of the spouse and legitimate children. 4. As seen above, circumstances concerning the Provision on the share of inheritance of illegitimate children have considerably changed in Japan as well as internationally, and the rationale behind the Provision which existed at the time of enactment has gradually lost validity. At this point, one cannot say that this exceeds the scope of reasonable discretion granted to the legislature, but if one limits the scope of examination to this Provision, the reasonableness as to the relationship with the reason of enactment has become significantly questionable.

Dissenting opinion by Justices Toshijiro Nakajima, Masao Ono, Hisako Takahashi, Yukinobu Ozaki, Mitsuo Endo: Concerning international treaties, Article 26 of the International Covenant on the Civil and Political Rights which Japan ratified in 1979, provides that all people are equal under law, and enjoy the right to equal protection without any discrimination. For this goal, the law prohibits all kinds of discrimination, and guarantees equal and effective protection to all, against discrimination on any grounds including birth or other status. Article 2, paragraph 1 of the Convention on the Rights of the Child, which Japan ratified in 1994, provides that the signatory shall respect and ensure that all children within their jurisdiction the rights provided by the Treaty regardless of the birth or other status of the children, their parents or statutory guardians. Considering the above-mentioned facts and the effect on the society which the Provision seemingly has, as well as other factors, at least at present, discriminating against illegitimate children in relation to inheritance for the purpose of respecting and protecting marriage is against the principles of the respect of individuals and their equality, lacks a substantial relationship between the purpose of legislation and means of achieving it. It is strongly questionable whether the Provision can be considered to be constitutional.

Follow up: In September 2013, the Supreme Court of Japan ruled that discriminating against children born out of wedlock, as Article 900.4 of the Civil Law did, violates Article 14.1 of the Constitution of Japan, and therefore is not valid law: see CRIN case summary of the 2013 decision. On 5 December 2013, the National Diet (Japan’s legislature) enacted a revision to the Civil Code reflecting the 2013 Court decision by deleting the provision that related to children born out of wedlock.

CRIN comments: CRIN believes this decision is inconsistent with the CRC. Article 2 requires States Parties to treat all children equally regardless of birth status, and the provision on inheritance of illegitimate children in Japan upheld by the Court clearly violates these children’s right to non-discrimination. It is hoped that the Supreme Court will overturn this decision in its upcoming review or that calls to the legislature to reform the law will be heeded. 

Citation: Saikō Saibansho [Sup. Ct. (Japan)] July 5, 1995, 1991(Ku)No.143, Minshu Vol. 49, No. 7 at 1789.

Link to full judgement (English): (Japanese):