The Japanese Civil Code
: Japanese Fairy TalesThe East and the West, the Past and the Present, meet in the Japanese
Civil Code, which became law in January, 1893.
It is the first codification of private law that Japan ever had in her
long history. Up to that time the basis of Japanese laws and institutions
was Chinese moral philosophy, ancestor worship and the old feudal system.
The Criminal Code of Japan (Shin-ritsu-koryo), enacted in 1870, was the
last legal code founded on Chinese philosophy, customs and traditions, and
the Revised Criminal Code (Kaitei-Ritsurei) is the first group of
Japanese laws based upon European jurisprudence and civilization.
Three periods may be marked in the history of Japan with regard to the
legal aspect of the marriage relation. The first was the ancient Japanese
period, the second the Chinese period, and the third, the present, that of
modern Japan.
The Chinese doctrine of the perpetual obedience of woman to man is
expressed in the "Three Obediences": Obedience, while yet unmarried, to
the father; obedience, when married, to the husband; obedience, when
widowed, to the son.
Buddhism regards woman as an unclean creature, a temptation, and an
obstacle to peace and holiness.
The great revolution in the legal position of woman in Japan which the new
Civil Code has brought about is as impressive as all the other changes for
the better which have of late years taken place in the land of the Cherry
Blossoms. The Chinese and Buddhistic theories concerning womankind have
but little influence on modern Japanese law.
Under the Civil Code husband and wife are now on an equal footing, except
when consideration for their common domestic life requires some
modifications.
Persons who are about to marry are permitted to make any contract with
regard to their individual property, and a woman is capable of owning and
controlling her separate property all during marriage.
When Japanese law belonged to the Chinese system of jurisprudence there
were seven causes for divorce, namely:
1. Sterility.
2. Lewdness.
3. Disobedience to father-in-law or mother-in-law.
4. Loquacity.
5. Larceny.
6. Jealousy.
7. Bad disease.
As under the Mosaic law, these causes were invented only for the advantage
of the husband. A wife had no right even to desire a divorce from her
husband.
An examination of the seven causes shows that a woman could be divorced
practically at her husband's pleasure. The New Civil Code has changed all
this. A wife has equal rights with her husband to the benefits of the
divorce law.
The New Civil Code of Japan is divided into five books, but it is only
with Book IV., which deals with the "Family," that we are at present
concerned.
A summary of the present marriage and divorce law of Japan, as translated
from Book IV., follows:
REQUISITES OF MARRIAGE.--A man cannot marry before the completion of his
seventeenth year or a woman before the completion of her fifteenth year.
A person already married cannot contract another marriage.
A woman cannot contract another marriage within six months from the
dissolution or cancellation of her former marriage.
If a woman is pregnant at the time of the dissolution or cancellation of
her former marriage this provision does not apply after the day of her
delivery.
A person who is judicially divorced or punished because of adultery cannot
contract a marriage with the other party to the adultery.
Lineal relatives by blood or collateral relatives by blood up to the third
degree cannot intermarry; but this does not apply as between an adopted
child and his collateral relatives by adoption.
Lineal relatives by affinity cannot intermarry. This applies even after
the relationship by affinity has ceased because of marriage or divorce.
An adopted child, his or her husband or wife, his descendants and the
husband or wife of one of his descendants on the one hand, and the adopter
and his ascendants on the other hand, cannot intermarry, even after the
relationship has ceased.
For contracting a marriage a child must have the consent of his parents,
being in the same house. This, however, does not apply if the man has
completed his thirtieth year or the woman her twenty-fifth year.
If one of the parents is unknown, is dead, has quit the house, or is
unable to express consent, the consent of the other parent is sufficient.
If both parents are unknown, dead, have quit the house, or are unable to
express consent, a minor must obtain the consent of his guardian and of
the family council.
This by way of parenthesis: The members of a house comprise such relatives
of the head of the house as are in his house and the husbands and wives of
such relatives.
The head and the members of a house bear the name of the house.
The head of the house is bound to support its members. A marriage takes
effect upon its notification to the registrar. A wedding ceremony is not
legally essential.
The notification of marriage must be made by the parties concerned and at
least two witnesses of full age, either orally or by a signed document.
If a Japanese couple in a foreign country contract a marriage between
themselves they may give the notification of their marriage to the
Japanese minister or consul stationed in such country.
EFFECT OF MARRIAGE.--By marriage the wife enters the house of the husband.
A man who marries a woman who is head of a house, or a mukoyoshi, enters
the house of his wife.
A mukoyoshi is a person who is adopted by another and at the same time
marries the daughter of the house who would be the heir to the headship of
the house.
A wife is bound to live with her husband. A husband must permit his wife
to live with him.
A husband and wife are bound to support each other. When the wife is a
minor the husband, if of full age, exercises the functions of a guardian.
A contract made between husband and wife may be cancelled at any time
during the marriage by either party, but without prejudice to the rights
of third persons.
DIVORCE BY MUTUAL CONSENT.--The husband and wife may effect a divorce by
mutual consent. No court procedure is necessary. Just as in giving notice
of marriage, the parties consenting to be divorced give notice of such
agreement to the registrar, and they are ipso facto divorced.
A person who has not reached the age of twenty-five years, in order to
effect a divorce by mutual consent, must obtain the consent of the person
or persons whose consent was necessary for the marriage.
If a husband and wife have effected a divorce by mutual consent without
arranging as to whom the custody of the children shall belong, it belongs
to the husband.
JUDICIAL DIVORCE.--A husband or wife, as the case may be, can bring an
action for divorce for the following causes:
1. If the other party contracts a second marriage.
2. If the wife commits adultery.
3. If the husband is sentenced to punishment for an offence specified in
Article 348 et seq. of the Criminal Code; such offences involving
criminal carnal sexuality.
4. If the other party is sentenced to punishment for an offence greater
than misdemeanor, involving forgery, bribery, gross sexual immorality,
theft, robbery, obtaining property by false pretences, embezzlement of
goods deposited, receiving knowingly stolen goods, or any of the offences
specified in Articles 175 and 260 of the Criminal Code, or is sentenced to
a major imprisonment or more.
5. If one party is so ill-treated or grossly insulted by the other that it
makes further living together of the spouses impracticable.
6. If one party is deserted by the other.
7. If one party is ill-treated or grossly insulted by an ascendant of the
other party.
8. If an ascendant of one party is ill-treated or grossly insulted by the
other party.
9. If it has been uncertain for three years or more whether or not the
other party is alive or dead.
10. In the case of the adoption of a mukoyoshi, if the adoption is
dissolved, or in the case of a marriage of an adopted son with a daughter
of the house, if the adoption is dissolved or cancelled.
More
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