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Judgment of the Supreme Court of Japan
Date of the Judgment 1996.6.24 |
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Case Number
1993(O)No.764 |
Judgment upon case where jurisdiction of the Japanese
court was acknowledged in an action claiming divorce
from a Japanese resident in Japan against a German
resident in Germany
Judgment upon case where jurisdiction of the
Japanese court was acknowledged in an action claiming
divorce and other matters
(1993(O)case No.764, June 24, 1995
Judgment of the Second Petit Bench; dismissed)
[First Instance Court] Koshigaya Branch,
Urawa District Court
Judgment of November 28, 1991
[Second Instance Court] Tokyo High Court
Judgment of January 27, 1993
Summary of the Judgment
In a case where the husband, who is a
Japanese national residing in Japan, initiated a divorce
action against the wife in a Japanese court, the
judgment of a German court accepting the claim of the
wife in an action which the wife had initiated in
Germany ahead of this action has taken force. However,
this judgment of the German court does not have effect
in Japan since it lacks the requirement as provided in
Article 220, subpara.2 of the Code of the Civil
Procedure and therefore, the marriage has not been
terminated. Even if the husband initiates the divorce
procedure in the German court, it is highly possible
that because the marriage has already been terminated,
the action would be found to be against the law. In such
cases, the jurisdiction of the Japanese court in the
action claiming divorce initiated by the husband should
be acknowledged.
References
Chapter One on Courts, Part One of the
Code of Civil Procedure [replaced by the new Code in
1997] Article 200
Judgment of a foreign court which has
taken effect is valid only when the following
requirements are met:
1. the jurisdiction of the foreign court
is not denied by law or international treaty
2. if the party which lost the case is a
Japanese national, this party had been summoned or
served a writ which is needed for the initiation of
action other than by means of public notice, or without
such summons or writ, had responded to the claim
3. the judgment of the foreign court is
not against the public order or good morals of Japan
4. there is a reciprocal guarantee
The main text of the judgment
The appeal is dismissed.
The cost of the appeal is to be borne by
the appellant.
Reasons
On item 1 of the grounds of appeal by the
representative of the appellant Makoto Nagata
1. The representative of the appellant
argues that the judgment of the original court which
acknowledged the jurisdiction of the Japanese court in
an action of the appellee who is a Japanese national
claiming divorce in the present case against the
appellant who has a nationality of the German Democratic
Republic is against the law. The summary of the facts
ascertained by the record is as follows.
1) The appellee and the appellant married
in the then German Democratic Republic (hereinafter,
'GDR') in the manner valid in the country on May 15,
1982 and the eldest daughter was born on May 23, 1985.
2) The appellee and the family had been
living in Berlin (GDR) from 1988. The appellant has
refused to live with the appellee since January
1989. The appellee returned to Japan under the pretext
of a trip in April 1989, informed the appellant that he
had no intention to return to the GDR, and continues
living in Japan.
3) On July 8, 1989, the appellant
initiated action for divorce at the Family Court of
Charlottenburg, Berlin where she resides. The service of
writ, summons of this litigation to the appellee was
done by public notice. The proceedings went ahead
without the appellee responding and the judgment
accepting the claim of the appellant and granting the
appellant the parental right over the eldest daughter
came into effect on May 2, 1990.
4) The appellee initiated the present
action on July 26, 1989 (the writ was served to the
appellant on September 20, 1990).
2. The place of residence of the
defendant is an important factor which should be taken
into consideration in determining the international
jurisdiction of courts also in divorce cases. It is a
matter of course that if the defendant resides in Japan,
jurisdiction of the Japanese court should be
acknowledged. However, it cannot be denied that even in
cases where the defendant does not reside in Japan, if
the nexus between the divorce claim and Japan can be
acknowledged from the place of residence of the
plaintiff and other factors, there are instances where
the jurisdiction of the Japanese court should be
acknowledged. In the absence of statutory provisions on
transnational jurisdiction and insufficient development
of international customary law, it is reasonable to
conclude that the problem of under what circumstances
the jurisdiction of Japan should be acknowledged must be
determined in accordance with reason based upon the idea
of fairness between the parties and just and speedy
hearing of the case. In determining the existence of
jurisdiction, the inconvenience of the defendant who is
forced to respond to the claim should naturally be
considered, but on the other hand, whether there is any
legal or factual impediment to the plaintiff in
initiating a divorce action in the defendant's country
of residence and if there is such impediment, its extent
should be considered and the care should be taken to
ensure that the interest of the plaintiff who claims
divorce should not be left unprotected.
In the present case, according to the
facts established above, by the taking of effect of the
judgment referred to in 1-(3) above, the divorce has
taken effect and the marriage between the appellee and
the appellant has already been terminated in the GDR
(according to the record, it is ascertained that the
appellant has returned to her maiden name). However, in
Japan, since the above judgment cannot be recognised as
valid since it failed to fulfil the requirement of
Article 200, subpara.2 of the Code of Civil Procedure,
the marriage has not been terminated. Under such
circumstances, even if the appellee initiates an action
claiming divorce in the GDR, it is highly possible that
the claim would be found unlawful because the marriage
has already been terminated. Therefore, for the appellee,
there is no way but to initiate action claiming divorce
in Japan. Taking this into consideration, it is in
accordance with reason to acknowledge international
jurisdiction of the court of Japan in the present action
claiming divorce. The judgment of the original instance
can be upheld in conclusion. Judgments cited in the
appellant's argument (Supreme Court 1961 (O) Case
No.449, judgment of the Grand Bench, March 25, 1964,
Minshu 18-3-486; Supreme Court 1961 (O) Case No.957,
Judgment of the Second Petit Bench, April 9, 1964,
Saibanshu Civil Cases, 73-51) are different and
cannot be applied in the present case. Arguments of the
appellant cannot be accepted.
On other grounds of appeal
Determination and decisions of the
original instance on the above arguments cannot be
acknowledged as justifiable in the light of the evidence
listed in the original judgment and the process of the
original instance is not against the law as the
appellant argues. The argument of the appellant
criticises the acceptance and non-acceptance of evidence
and its assessment, as well as the ascertaining of facts
by the original instance, or criticises the original
judgment on the basis of a unique view of her own and
cannot be accepted.
Therefore, in accordance with articles
401, 95, 89 of the Code of Civil Procedure, the justices
unanimously conclude as stated in the main text of the
judgment.
Presiding Judge, Justice
Shigeharu Negishi
Justice Katsuya Onishi
Shinichi Kawai
Hiroshi Fukuda
* Translated by Sir Ernest Satow Chair of
Japanese Law, University College, University of London
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