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Japan’s
Private International Law:
Act on the
General Rules of Application of Laws
Hō no
Tekiyō ni Kansuru Tsūsokuhō
Law No. 10 of 1898 (as newly titled and amended 21 June 2006)
Note: The Act does not contain official Article
headings. Those provided here were added by the translators.
Translation by Kent Anderson and Yasuhiro Okuda
Chapter 1
General Rules
Article 1
[Purpose]
This law shall
provide the general rules for the application of laws.
Chapter 2 General
Rules for Statutes
Article 2
[Effective Date of Statutes]
A statute shall
come into force from the twentieth day after its promulgation.
However, where a different effective date is provided by the
statute, that date shall apply.
Article 3
[Customs with the Same Effect as Law]
Customs not
contrary to public policy (ordre public)
shall have the same effect as law, to the extent that
they are authorized by a statute or a statutory instrument, or that
they concern matters not otherwise prescribed by a statute or a
statutory instrument.
Chapter 3 General
Rules on Applicable Law
Section 1 Person
Article 4 [A
Person’s Legal Capacity]
(1) The legal
capacity of a person shall be governed by his or her national law.
(2)
Notwithstanding the preceding paragraph, where a person who has
performed a juristic act is of full capacity under the law of the
place where the act was done (lex loci actus), that person
shall be regarded as having full capacity to the extent that at the
time of the juristic act, all the parties were situated in a place
under the same law.
(3) The preceding
paragraph shall not apply either to a juristic act governed by
family law
or succession law,
or to a juristic act regarding immovables situated in a
place where the law differs from the lex loci actus.
Article 5
[Initiation of Guardianship or Similar Proceedings]
The court may
initiate proceedings for guardianship, curatorship, or assistance
(hereinafter referred to as “initiation of guardianship or similar
proceedings”) under Japanese law where the person to be subject to
the guardianship, curatorship, or assistance has a domicile or
residence in Japan or is a Japanese national.
Article 6
[Declaration of Disappearance]
(1) The court may
declare a person to have disappeared under Japanese law where the
person was domiciled in Japan or was a Japanese national at the time
when he or she was last recognized as alive. (2) Even where the
preceding paragraph is not applicable, the court may declare a
person to have disappeared under Japanese law with regards only to
the property that the person had in Japan and only to the person’s
legal relations governed by Japanese law or otherwise connected to
Japan in light of their nature, the domicile or nationality of the
persons concerned, or other circumstances.
Section 2
Juristic Acts
Article 7 [Choice
of Applicable Law by the Parties]
The formation and
effect of a juristic act shall be governed by the law of the place
chosen by the parties at the time of the act.
Article 8 [In the
Absence of a Choice of Applicable Law by the Parties]
(1) Where there
is no choice under the preceding Article, the formation and effect
of a juristic act shall be governed by the law of the place with
which the act is most closely connected at the time of the act.
(2) For the
purpose of the preceding paragraph, where only one party is to
effect the characteristic performance of the juristic act, it shall
be presumed that the juristic act is most closely connected with the
law of his or her habitual residence (i.e., the law of his or her
place of business where that place of business is related to the
act, or the law of his or her principal place of business where he
or she has two or more places of business related to the act and
where those laws differ).
(3) For the
purpose of the first paragraph of this Article, where the subject
matter of the juristic act is immovables, notwithstanding the
preceding paragraph, it shall be presumed that the act is most
closely connected with the law of the place where the immovables are
situated.
Article 9
[Variation of Applicable Law by the Parties]
The parties may
vary the law otherwise applicable to the formation and effect of a
juristic act. However, such variation shall not be asserted against
third parties where it would be prejudicial to their rights.
Article 10
[Formalities of a Juristic Act]
(1) The
formalities of a juristic act shall be governed by the law
applicable to the formation of the act (where under the preceding
Article the law was varied after the juristic act, the law
applicable before the variation shall govern).
(2)
Notwithstanding the preceding paragraph, formalities that satisfy
the requirements of the law of the place where the act was done (lex
loci actus) shall be effective.
(3) For the
purpose of the preceding paragraph, where a declaration of intent is
addressed to a person situated in a place under a different law, the
place from where the notice was sent shall be deemed as the place of
the act (locus actus).
(4) The second
and third paragraphs of this Article shall not apply to the
formalities of a contract concluded between parties situated in
places having different laws. In this case, notwithstanding the
first paragraph of this Article, contract formalities that satisfy
the requirements of either the law of the place from where the
notice of offer was sent or the law of the place from where the
notice of acceptance was sent shall be effective.
(5) The second,
third, and fourth paragraphs of this Article shall not apply to the
formalities of a juristic act that establishes or disposes of a
right in rem to movables or immovables, or of a right
requiring registration.
Article 11
[Special Rules for Consumer Contracts]
(1) Regarding the
formation and effect of a contract (excluding labor contracts;
hereinafter referred to in this Article as “consumer contract”)
between a consumer (i.e., an individual, excluding those cases where
the party acts as a business or for a business) and a business
operator (i.e., a juridical person or other corporate association,
or an individual in those cases where the party is acting as a
business or for a business), even where by choice under Article 7 or
variation under Article 9, the applicable law would be a law other
than that of the consumer’s habitual residence, when the consumer
indicates to the business operator his or her intention that a
particular mandatory rule from within the law of the consumer’s
habitual residence should apply, this mandatory rule shall also
apply to the matters covered by the rule concerning the consumer
contract’s formation and effect.
(2)
Notwithstanding Article 8, where no choice under Article 7 has been
made, the formation and effect of a consumer contract shall be
governed by the law of the consumer’s habitual residence.
(3) In regards to
the formation of a consumer contract, even where a law other than
the law of a consumer’s habitual residence is chosen under Article
7, when the consumer indicates to the business operator his or her
intention that a particular mandatory rule from within the law of
the consumer’s habitual residence should apply to the formalities of
the consumer contract, only the mandatory rule shall apply to the
matters covered by the rule concerning the consumer contract’s
formalities, irrespective of Article 10, paragraphs 1, 2, and 4.
(4) Where the law
of a consumer’s habitual residence is chosen under Article 7 with
regards to the formation of a consumer contract, and when the
consumer indicates to the business operator his or her intention
that the law of the consumer’s habitual residence should only apply
to the formalities of a consumer contract, the formalities of the
consumer contract shall be governed only by the law of the
consumer’s habitual residence, irrespective of Article 10,
paragraphs 2 and 4.
(5)
Notwithstanding Article 10, paragraphs 1, 2, and 4, where there is
no choice under Article 7 with regards to the formation of the
contract, the formalities of a consumer contract shall be governed
by the law of the consumer’s habitual residence.
(6) The preceding
paragraphs shall not apply in any of the following cases:
(i) Where the
business operator’s place of business that is associated with a
consumer contract is in a place under a law that is different from
the law of the consumer’s habitual residence, and where the consumer
comes to a place that has the same law as that place of business to
conclude the contract. However, excluding cases where the consumer,
who is in the place of his or her habitual residence, is invited by
the business operator to conclude the consumer contract in the place
that has the same law as the place of business;
(ii) Where the
business operator’s place of business that is associated with a
consumer contract is in a place under a law that is different from
the law of the consumer’s habitual residence, and where the consumer
has received or should receive the performance of all obligations
under the consumer contract in a place that has the same law as that
place of business. However, excluding cases where the consumer, who
is in the place of his or her habitual residence, is invited by the
business operator to have all obligations performed under the
consumer contract in a place that has the same law as that place of
business;
(iii) Where at
the time of contracting the business operator did not know the
consumer’s habitual residence and there were reasonable grounds for
not knowing this; or
(iv) Where at the
time of contracting the business operator mistook the other party of
the contract for not being a consumer and there were reasonable
grounds for this mistake.
Article 12
[Special Rules for Labor Contracts]
(1) Even where by
choice under Article 7 or variation under Article 9, the applicable
law to the formation and effect of a labor contract is a law other
than the law with which the contract is most closely connected, when
the employee indicates to the employer his or her intention that a
particular mandatory rule from within the law of the place with
which the employee is most closely connected should apply, this
mandatory rule shall apply to the matters covered by the rule
concerning the labor contract’s formation and effect.
(2) For the
purpose of the preceding paragraph, it shall be presumed that a
labor contract is most closely connected with the law of the place
where the work should be carried out under the contract (i.e., the
law of the place of business through which the employee was engaged,
where the work is not to be carried out in a particular place. The
same applies for the next paragraph).
(3)
Notwithstanding Article 8, paragraph 2, where no choice under the
provision of Article 7 has been made with regards to the formation
and effect of a labor contract, it shall be presumed that regarding
its formation and effect the contract is most closely connected with
the law of the place where the work should be carried out under the
contract.
Section 3 Rights
in Rem and so forth
Article 13
[Rights in Rem and Rights Requiring Registration]
(1) Rights in
rem to movables and immovables and any other rights requiring
registration shall be governed by the law of the place where the
property is situated (lex rei sitae).
(2)
Notwithstanding the preceding paragraph, the acquisition and loss of
the rights mentioned in the preceding paragraph shall be governed by
the place where the property is situated (lex rei sitae) at
the time when the events causing the acquisition or loss were
completed.
Section 4 Claims
Article 14
[Agency by Necessity and Unjust Enrichment]
The formation and
effect of claims arising from agency by necessity (negotiorum
gestio)
or unjust enrichment shall be governed by the law of
the place where the events causing the claims occurred.
Article 15
[Exception for Cases with a Clearly Closer Connection to Another
Place]
Notwithstanding
the preceding Article, the formation and effect of claims arising
from agency by necessity (negotiorum gestio) or unjust
enrichment shall be governed by the law of the place with which they
are clearly more closely connected in light of circumstances such as
where at the time of the occurrence of events causing the claims
both of the parties had their habitual residence in a place with the
same law, or where the agency by necessity (negotiorum gestio)
or unjust enrichment arose relating to a contract between the
parties.
Article 16
[Variation of Applicable Law by the Parties]
After the events
causing the claims occur, the parties to an agency by necessity (negotiorum
gestio) or unjust enrichment may vary the law that would
otherwise be applicable to the formation and effect of the claims.
However, such variation shall not be asserted against third parties
where it would be prejudicial to their rights.
Article 17 [Tort]
The formation and
effect of claims arising from tort shall be governed by the law of
the place where the results of the acts causing the damage arose.
However, where the occurrence of the results in such place would
usually be unforeseeable, the law of the place where the acts
causing the damage occurred shall govern.
Article 18
[Special Rules for Product Liability]
Notwithstanding
the preceding Article, where a claim against a producer (i.e., a
person who produces, processes, imports, exports, distributes, or
sells a product in the course of trade) or a person who makes a
representation that leads others to believe he or she is a producer
of a product (hereinafter referred to jointly in this Article as
“producer or similar person”) arises from a tort injuring the life,
body, or property of others caused by the defect of a delivered
product (i.e., a produced or processed thing), the formation and
effect of those claims shall be governed by the law of the place
where the injured person has been delivered the product. However,
where the delivery of the product to that place could not usually be
foreseen, the law of the principal place of business of the producer
or similar person (or the law of his or her habitual residence where
he or she has no place of business) shall govern.
Article 19
[Special Rules for Defamation]
Notwithstanding
Article 17, the formation and effect of claims arising from the tort
of defamation
of another shall be governed by the law of the injured
person’s habitual residence (i.e., the law of its principal place of
business where the injured person is a juridical person or other
corporate association).
Article 20
[Exception for Cases with a Clearly Closer Connection to Another
Place]
Notwithstanding
Articles 17, 18, and 19, the formation and effect of claims arising
from tort shall be governed by the law of the place with which they
are clearly more closely connected in light of the circumstances
such as where at the time of the tort both of the parties had their
habitual residence in a place under the same law, or where the tort
occurred by breaching obligations in a contract between the parties.
Article 21
[Variation of Applicable Law by the Parties]
After a tort
occurs, the parties to the tort may vary the law that would
otherwise be applicable to the formation and effect of claims.
However, such variation shall not be asserted against third parties
where it would be prejudicial to their rights.
Article 22
[Public Policy Limits in Tort]
(1) Where events
that should otherwise be governed by the foreign law applicable in
tort do not constitute a tort under Japanese law, recovery of
damages or any other remedy under the foreign law may not be
demanded.
(2) Even where
the events that should otherwise be governed by the foreign law
applicable in tort constitute a tort both under the foreign law and
under Japanese law, the injured person may not demand recovery of
damages or any other remedy not recognized under Japanese law.
Article 23
[Assignment of Claims]
The effect on a
debtor or other third parties of an assignment of a claim shall be
governed by the law that is applicable to the claim.
Section 5 Family
Article 24
[Formation and Formalities of Marriage]
(1) For each
party, the formation of a marriage shall be governed by his or her
national law.
(2) The
formalities of a marriage shall be governed by the law of the place
of the ceremony (lex loci celebrationis).
(3)
Notwithstanding the preceding paragraph, formalities that satisfy
the requirements of either of the parties’ national law shall be
effective, unless the marriage is celebrated in Japan and one of the
parties is a Japanese national.
Article 25
[Effect of Marriage]
The effect of a
marriage shall be governed by the spouses’ national law when it is
the same,
or where that is not the case, by the law of the spouses’
habitual residence when that is the same, or where neither of these
is the case, by the law of the place with which the spouses are most
closely connected.
Article 26
[Matrimonial Property Regime]
(1) The preceding
Article shall apply mutatis mutandis to the parties’
matrimonial property regime.
(2)
Notwithstanding the preceding paragraph, the parties’ matrimonial
property regime shall be governed by the law that the spouses select
from among the following laws where such selection is made in
writing, signed, and dated by the spouses. In this case, the
selection only has effect for future actions.
(i) The law of
the country where either spouse has nationality;
(ii) The law of
either spouse’s habitual residence; or
(iii) Regarding a
matrimonial property regime for immovables, the law of the place
where the immovables are situated.
(3) A matrimonial
property regime that according to the first and second paragraphs of
this Article should be governed by a foreign law shall not be
asserted against third parties acting in good faith (bona fides)
insofar as it concerns juristic acts performed in Japan or property
situated in Japan. In this case, regarding relations with such third
parties the matrimonial property regime shall be governed by
Japanese law.
(4)
Notwithstanding the preceding paragraph, an ante- or pre-nuptial
agreement concerning matrimonial property made under a foreign law
pursuant to the first or second paragraph of this Article may apply
against a third party when the agreement is registered in Japan.
Article 27
[Divorce]
Article 25 shall
apply mutatis mutandis to divorce. However, divorce shall be
governed by Japanese law where one of the spouses is a Japanese
national with habitual residence in Japan.
Article 28
[Establishing the Parent-Child Relationship Where the Child is
Legitimate]
(1) A child shall
be legitimate where at the time of the child's birth the child was
legitimate under the national law of one of the spouses.
(2) Where the
husband has died before the child's birth, the husband’s national
law at the time of his death shall be regarded as the law referred
to in the preceding paragraph.
Article 29
[Establishing the Parent-Child Relationship Where the Child is
Illegitimate]
(1) Where a child
is illegitimate, establishment of the parent-child relationship with
regards to the father (paternity) shall be governed by the father’s
national law at the time of the child's birth, and with regards to
the mother (maternity) by the mother’s national law at that time. In
these cases, when establishing the parent-child relationship by
acknowledgment, where the national law of the child at the time of
acknowledgment requires the agreement or consent of the child or a
third party as a condition of acknowledgment, this requirement must
also be satisfied.
(2)
Acknowledgment of a child shall be governed by the national law of
the child or of the acknowledging person at the time of the
acknowledgment, or the law designated in the first sentence of the
preceding paragraph. In the case where the national law of the
acknowledging person shall be applied, the second sentence of the
preceding paragraph shall also apply mutatis mutandis.
(3) Where the
father has died before the child's birth, the father’s national law
at the time of his death shall be regarded as the law designated by
the first paragraph of this Article. Where the person provided for
in the preceding paragraph has died before the acknowledgment, the
national law of that person at the time of his or her death shall be
regarded as the national law designated by that paragraph.
Article 30 [Legitimation]
(1) A child shall
receive the status of legitimate where he or she is legitimated by
the national law of the father, mother, or child at the time when
the conditions required for legitimation are completed.
(2) Where a
person mentioned in the preceding paragraph has died before the
completion of the conditions required for legitimation, the national
law of that person at the time of his or her death shall be regarded
as the national law designated by that paragraph.
Article 31
[Adoption]
(1) Adoption
shall be governed by the national law of the adoptive parents at the
time of the adoption. Where the national law of the child to be
adopted requires as a condition for establishing the adoption the
agreement or consent of the child or a third party, or the approval
or any other decision by a public authority, this requirement must
also be satisfied.
(2) Repudiation
and termination of the familial relationship between an adopted
child and his or her actual blood relatives (relatives by
consanguinity) shall be governed by the law designated in the first
sentence of the preceding paragraph.
Article 32 [The
Legal Relationship Between Parents and Child]
The legal
relationship between parents and their child shall be governed by
the child’s national law where that is the same as the national law
of either the mother or father (or the national law of the other
parent in the case where one parent has died or is unknown), or in
all other cases by the law of the child’s habitual residence.
Article 33 [Other
Family Relationships]
Family relations
or rights and duties arising therefrom that are not covered by
Articles 24 to 32 shall be governed by the national law of the party
concerned.
Article 34
[Formalities of Juristic Acts Concerning Family Relations]
(1) The
formalities of juristic acts concerning family relations covered by
Articles 24 to 33 shall be governed by the law applicable to the
formation of such juristic acts.
(2)
Notwithstanding the preceding paragraph, formalities that conform
with the law of the place where the act was done (lex loci actus)
shall be effective.
Article 35
[Guardianship or Similar Proceedings]
(1) Guardianship,
curatorship, or assistance (hereinafter “guardianship or similar
proceedings”) shall be governed by the national law of the ward.
(2)
Notwithstanding the preceding paragraph, in the following cases
where the ward is a foreign national, judicial declarations
concerning guardianship or similar proceedings such as judicial
appointment of a guardian, curator, or assistance manager shall be
governed by Japanese law:
(i) In the case
where according to the foreign national’s national law there is
cause for initiating guardianship or similar proceedings, but there
is no one in Japan to undertake the administration of the
guardianship or similar proceedings; or
(ii) Where there
has been a judicial declaration to initiate guardianship or similar
proceedings concerning a foreign national in Japan.
Section 6
Succession
Article 36
[Succession]
Succession shall
be governed by the national law of the decedent.
Article 37
[Wills]
(1) The formation
and effect of a will shall be governed by the testator’s national
law at the time of the will’s formation.
(2) The
revocation of a will shall be governed by the testator’s national
law at the time of the revocation.
Section 7
Supplementary Rules
Article 38
[National Law]
(1) Where a
person has two or more nationalities, his or her national law shall
be the law of the country in which the person has habitual residence
from among those states of which he or she has nationality. Where
there is no such country, the person’s national law shall be the law
of the state with which he or she is most closely connected.
However, where one of those nationalities is Japanese, Japanese law
shall be that person’s national law.
(2) In the case
where a person’s national law shall govern but the person has no
nationality, the law of that person’s habitual residence shall
govern. However, this shall not apply to cases where Article 25
(including its application mutatis mutandis under Article 26,
paragraph 1 and Article 27) or Article 32 is applicable.
(3) Where a
person has nationality in a state where the law differs by region,
that person’s national law shall be the law indicated according to
the rules of that state (or the law of the region with which that
person is most closely connected in the case where such rules do not
exist).
Article 39 [Law
of Habitual Residence]
In the case where
the law of a person’s habitual residence shall govern but where that
habitual residence is unknown, the law of that person’s residence
shall govern. However, this shall not apply to cases where Article
25 is applicable (including its application mutatis mutandis
in Article 26, paragraph 1 and Article 27).
Article 40 [The
Law of States or Places Where such Law Differs According to One’s
Personal Status]
(1) In the case
of a person who is a national of a state where the law differs
according to a person’s status, that person’s national law shall be
the law indicated according to the rules of that state (or the law
with which that party is most closely connected where such rules do
not exist).
(2) The preceding
paragraph shall apply mutatis mutandis to the law of that
party’s habitual residence where that law differs according to a
person’s status and where that law is applicable according to
Article 25 (including its application mutatis mutandis under
Article 26, paragraph 1 and Article 27), Article 26, paragraph 2,
item ii, Article 32, or Article 38, paragraph 2, and to the law of
the place with which both spouses are most closely connected where
that law differs by a person’s status.
Article 41 [Renvoi]
Where a case
should be governed by a person’s national law and pursuant to the
rules of that law the case should be governed by Japanese law, the
case shall be governed by Japanese law. However, this shall not
apply where the person’s national law should govern pursuant to
Article 25 (including its application mutatis mutandis in
Article 26, paragraph 1 and Article 27) or Article 32.
Article 42
[Public Policy (Ordre Public)]
Where a case
should be governed by a foreign law but application of those
provisions would contravene public policy (ordre public),
those provisions shall not apply.
Article 43
[Exceptions to Application]
(1) The
provisions of this Chapter shall not apply to maintenance
obligations arising from spousal, parentage, or any other family
relationships. However, this shall not apply to application of the
provisions in the main clause of Article 39.
(2) The
provisions of this Chapter shall not apply to the formalities of
wills. However, this shall not apply to the application of the
provisions in the main clause of Article 38, paragraph 2, the main
clause of Article 39, and Article 40. |
