Japanese Women: Should they keep their maiden name or take their husband’s last name? (Voices from Japan)
12 Oct 2009 Leave a Comment
in Japan, Japan – Law, Japan – Modern Trends, Voices from Japan Tags: Japanese family registry, Japanese marriages, Japanese married couples, Japenese men and women, Marriage and name
flickr id: kirakirahoshi'
This article is a part of my series called: Voices from Japan, which entails translating opinion pieces done by Japanese bloggers into English. This entry is on: should Japanese women change their name when getting married. The article gives some background information on the Japanese legal system, and makes the case for giving the couple the option to change their name. You can read the original Japanese at the blogger’s site.
This will likely be the last article I translate from the electronic lawyer’s site (e-bengo). If you would like more articles translated from this site, let me know.
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Japan’s first real change of political power after World War 2 happened – certainly, a democratic revolution – with the Democratic Party of Japan taking power (defeating the Liberal Democratic Party of Japan, a party in no shape or form liberal), and with it came a revival of the debate over the separation of surnames for married couples. I wonder if a revolution in marital relationships will occur as well?
The current Japanese marriage system adopts the Christian idea that couples use the same surname till death do we part, an idea that is a general rule in many western countries. The legal designation of the Western family name is the origin of the Japanese system. Japanese Civil Law, following the example of Western Law, adopted the same family name system for married couples. Together with Japan’s unique family system, the same family name system for married couples has established itself as a part of everyday life in modern Japan,
However, if you think about it, there is another aspect to the system: in the same family name system for married couples, a woman must change her family name – the family name a person was born with and have gotten used to until getting married – because if a woman doesn’t change her family name to her partner’s, she will not be able to enter her partner’s family registry (Wikipedia link on the family registry system: here). And if she doesn’t enter it, she will be unable to receive many of the benefits of being a spouse – for example, the spouse inheritance system, taxes, etc.
(Translator’s note: Actually, to register as being married in the Japanese family registry, a man and woman must register under the same name (a man can also register under his wives family name)
However, recently, there has been an increase in men and women choosing to not marry. In many cases with the same family name system for married couples, the burden is forced on the woman. However, in modern Japan, there has been an increase in women who are economically and socially independent; would you agree that there has been a rapid increase – when compared to the past – in women who recognize the drawbacks to changing their family name when getting married? There is also the view that women are not getting married because men are becoming economically weaker (with the problem of dispatch companies, job security, and a difficult environment to find salaried work).
Another view is that the compulsion to adopt the same name comes from the force of the unchanged family system. And do you think the separation of surnames for married couples is a modern and democratic view? The separation of surnames for married couples is a standard in China and Korea, but not in Japan. However, this idea is used as a premise in Confucian countries (Japan, China, and Korea) – where there is a strong view that men are stronger (mentally, economically) – to refuse women who hold the modern view that men are equal. It appears that the various thoughts and religions of this world shaped the form of the modern married couple.
What direction should the flow of married couples’ family names in modern Japan follow? Surely, you would agree that a “selection system,” in which each couple chooses what name to use, must be adopted? We must create a system with no general rules for a marriage couple choosing a family name, a system where couples can choose to adopt the same name or a different name when they send the marriage application.
Already, a selection system where upon divorce, a divorcee can choose to maintain the new surname or revert back to their former surname has taken shape in Japan. In short, it is a system where it is all right for a marriage couple that used the same surname for decades to maintain the surname for life, even after a divorce. Since this system exists, wouldn’t it also be good for each partner to select the same surname or a different surname upon getting married?
A statute of limitation is unnecessary for heinous crimes (Voices from Japan)
08 Oct 2009 Leave a Comment
in Japan, Japan – Law, Voices from Japan Tags: Japan Statue of Limit, Japanese Court, Japanese law, Japanese Legal System, Statue of Limitation
Flickr ID: TonyVC
This article is a part of my series called: Voices from Japan, which entails translating opinion pieces done by Japanese bloggers into English. This entry is on eliminating the statue of limitation for heinous crimes in Japan (the time limit the prosecutors have to find and convict a suspect after a crime has been committed). You can read the original Japanese at the blogger’s site
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凶悪犯罪に、公訴時効は不要
A statute of limitation is unnecessary for heinous crimes
In July 1995, 3 female part-time high school workers were shot and killed at a supermarket in Hachioji, Tokyo. They were shot in the head at point-blank range. This atrocious crime still lingers in our mind to this day and the 15-year statue of limitation is creeping up with only one year remaining – and the perpetrator still remains at large. In 2004, the Criminal Procedure Code was amended: in crimes where the death penalty is applicable (ex. death penalty), the statue of limitation was extended from 15 years to 25 (Criminal Procedure Code Article 250). However, based on the principles of non-retroactive criminal law, the amendment only applies to crimes committed after its enactment.
The statute of limitation system holds that you cannot be tried in court for a crime after a set period of time has passed since the crime was committed – regardless of the crime. The result is that it is better for the criminal to hide than face up for their crimes. If the public knew the truth of this, would they agree? Certainly, the passing of time is a harsh reality: as time passes, investigating becomes difficult and collecting evidence becomes harder. With this reality the statute of limitation brings some criminal investigations to an end. It is not possible to sustain a police dragnet of an old incident forever because of money.
If you think about it, this is only to the convenience of the authorities. Do you not care about the feelings of the victim and the bereaving family? Criminal law must be effective in restraining crime. Even if you kill a person, if you lay in hiding for 15 (now 25) years, you will not be punished – just like being acquitted. Does criminal law really have the power to restrain crime?
I think it does the opposite. I think that the statute of limitation must be completely repealed for certain heinous crimes (ex. murder). There is no reason to allow the perpetrator of a heinous crime to make it better for the criminal to hide than face up for their crimes. Rather, if it is possible the perpetrator of a heinous crime like murder should never be allowed to run free forever. And should without fail be brought to justice. Wouldn’t you think this kind of legal system would be considered as sensible to the general public?
In the debate for the abolition of the statute of limitation, there is an argument that some people will be found to have been falsely charged of a crime (after the statute is removed due to a reinvestigation). Due to the statute of limitation there is the logic that if the Japanese investigating authorities do not produce a perpetrator the case will not end. That is to say, even if you are made out as the perpetrator, evidence to assert your innocence goes unfound (the police don’t put much effort into finding contradictory evidence, or they are unable to find contradictory evidence, and there have been many cases where the police have been found to force confessions on people they think are guilty, and possibly not).
However don’t you think this logic is wrong? Just because there is a statue of limitation does not mean the investigating authorities should try to produce a perpetrator. It is unavoidable that the trail of evidence fades as time passes. Before someone can be found to have been falsely charged of a crime, it has to be demonstrated that a person is the perpetrator, a task difficult in itself. What I want to say is that it is more irrational – although some evidence remains – to be unable to punish the perpetrator due to the statute of limitation and to produce a perpetrator to end the case before the statute of limitation than have no statute of limitation at all. We must have a sound society that does not allow criminals to receive a get out of jail free card.
Right now there is a study being held at the Ministry of Justice on the statute of limitation system. However, this must not be done through the minds of government officials. Viewing it from general common sense, there must be a reinvestigation into what system we must have in order to create a safe society.
Ministry of Justice, don’t drive the law students nuts! (Voices from Japan)
04 Oct 2009 Leave a Comment
in Japan – Law, Japan – Modern Trends, Voices from Japan Tags: Japan Bar Exam, Japanese law, Japanese law students, Japanese lawyers, Japanese legal culture, law school in Japan
Flicker id: Gensuikin
This article is a part of my series called: Voices from Japan, which entails translating opinion pieces done by Japanese bloggers into English. This entry is from the blog of a Japanese lawyer on the Japanese Bar Exam. You can read the original Japanese at the blogger’s site or on this page under my English translation.
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Ministry of Justice, don’t drive the law students nuts!
Yesterday, the results for the new bar examination were announced. 2043 people, 27.6% of applicants passed the new bar examination – an examination targeted towards law school graduates. The Ministry of Justice, the government body that created the law school system 4 or 5 years ago, publicized the new system, insisting a passing rate from 70-80%. Even a salaryman who dreamed of becoming a lawyer, could quit his job, use his savings to enter law school. However, in reality, since the start of the new test there has been a rapid decrease in the passing rate. It has taken a major effort to maintain the rate around 30-39 percent at best.
So why switch to a new bar exam? There are two reasons: one, the harm the previous bar exam was causing was pointed out – it was producing biased lawyers because the exam, which exam takers studied for a long period to pass (5-10 years), was warping the takers’ personality. Two, bar exam preparation schools were flourishing due to the need to study specialized material for the exam. It was necessary to revise this ridiculous situation.
The intent of for the new bar exam was to nurture lawyers from a wide range of fields – for example, doctors, technicians and others with science backgrounds and working adults who were working in non-legal fields. Like the previous bar exam with a passing rate of between 1 and 2%, it is obvious that there would be an increased demand for an optimization of study methods for the bar exam and a specialization in test taking techniques. The result was the harm produced by the culmination of bar exam preparation schools. When I studied for the bar examination (civil law), the test takers read through the basics from A through Z, and studies that lead to a strong command of law. However, the result of the new bar exam is lawyers that only have legal knowledge on points that often appear on the test. That situation must end.
It is necessary for a lawyer, in addition to having acquired a broad education and common sense, to have legal training that provides thorough understanding of law and applies to many fields.
The new bar exam’s original intent was to gather and turn a variety of people into lawyers. However, looking at this year’s results, the passing rate of those not specialized in law was 18.9%, a very low rate. Also, few people from rural Universities passed. Don’t you think the new bar exam has already lost site of its original intent?
The new lawyers have gone through great pains to receive their lawyer badges, but since last year several problems have arisen: they have been unable to find a law office to work in and have been unable to find an organization where they can learn through watching the boss in action. Oric’s Miyauchi (Article doesn’t mention if it is a man or woman) at a discussion about judicial reform advocated – using the 3000 students who passed as a premise – that the Government is highly responsible for flooding law schools with candidates. However, that is not the law school students’ fault. In the legal profession, there are people who give little value to those who passed the new bar exam. But, if the new bar exam is using the proposition “legal knowledge isn’t everything” to create a new system, it would be good if the test recognizes the taste taker’s as competent in law at the moment of passing – and not demand a high level of legal knowledge. We must hope their future training will do the job and let society weed them out.
I think year’s passing rate is the result of the deadlock in the debate over the difficulty of finding a law job. At a minimum, we must send law school students, people who have a dream of becoming a lawyer and have overcome the barriers to enter law school, to the legal world using a standard that matches with the intent of the new bar exam. We must not pervert the lives of law students.
International divorce: Stop snatching your children and taking them overseas (Voices from Japan)
29 Sep 2009 1 Comment
in Japan, Japan - Politics, Japan – Law, Voices from Japan Tags: child abductions, hague convention, international divorce, international marriages, internationalization of Japan, parents taking children, parents taking children overseas
This article is a part of my series called: Voices from Japan, which entails translating opinion pieces done by Japanese bloggers into English. This entry is from the blog of a Japanese lawyer on the problem of child abductions. You can read the original Japanese at the blogger’s site or on this page under my English translation.
International divorce: Stop snatching children and taking them overseas
Recently, international marriages have been on the rise. And international divorces too have been following an upward course proportional to this increase. For example, there are cases in Japan where a Japanese man gets married to a foreign national, has a child, family life collapses, they close shop, and the women takes the child to her home country. In the case where a female with a foreign nationality unreasonably separates a child from their father, as long as the child is in Japan, there is some way of handling it through Japanese Criminal Law and the Protection of Personal Liberty Law.
However, in the case where the child is taken to a foreign country, a place where Japan has no jurisdiction, do you think the other parent can bring the child back to Japan? In some recent examples, some women in discord with her husband would just take the children to their home country, permanently separating father and child.
Even when parents are in discord, both parents hold a blood link to the child. And the right for a parent to negotiate a meeting to meet their child is a natural right of humanity. Even across borders, a parent cannot deprive the other of the right to meet ones child. Concerning this issue, there is a problem with Japan’s stance.
The Hague Convention was enacted in 1980. In response to a parent taking a child and leaving the country, the other parent can demand the prompt return of the child if the child is in a country that agreed to the convention. If Japan were to ratify the convention and adjust Japanese civil laws to it, it would be possible to return a child that was taken away by one parent.
Already, around 80 countries, mainly Western countries and almost all developed nations, have ratified the convention and become signatories. Currently, Japan is being criticized by America and Canada for not ratifying the Hague Convention – there are many cases of Japanese women taking the children away to Japan. Many Asian countries have not signed and its backwards attitude towards human rights are being questioned. On the other hand, if Japan signs the Hague convention, it will be possible for Japan to demand the return of a child from another signatory when a child is taken overseas.
Parliamentary deliberation is stopped after the Tokyo Assembly Election. Isn’t it a parliamentary members job to enact and revise laws? It is too irresponsible for a worthy Diet member to neglect parliamentary deliberation just because a decision – or decisions – to censure the prime minister (LDP) by the Upper House (Controlled by DPJ) is approved and the Lower House election is near. It appears that many important bills will be rejected and this is looking foolish. More and more Japan looks like it is being left behind in International community. It doesn’t matter how big the odds are for the opposition party (DPJ) to achieve an administration change, Japan’s government must move without making a fuss (with the cooperation of the opposition and ruling party).
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My thoughts:
Actually, Japan has received a lot of criticism for not signing the Hague Convention (due to a difference in legal systems and a cultural belief that the children should live with the mother). And recently there have been many cases of Japanese women kidnapping their children and taking them to Japan – I have actually worked on one such case and saw the harm it caused the father. If Japan were to sign the Convention, it would have to extradite many Japanese women, currently fugitives in other countries, to face punishment for their crimes. Something, I don’t expect Japan doing anytime soon. For more information on actual cases and details of this tragic problem, please check out this post by Debito here
And click here for Japan’s Children Rights Network
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The original Japanese article
国際離婚で、子どもを国外に奪うな
最近、国際結婚が増えています。それに比例するように国際離婚も増加の一途をたどっています。日本で、外国籍の女性と婚姻し、子供をもうけたものの、婚姻生活が破綻し、たため、母親が、子どもを連れて、母国に帰ってしまったケースがあります。日本国内に子どもがいる限り、たとえ外国籍の母親が、子どもを不当に父親から引き離したとしても、刑法や人身保護法など、日本の法律により、それなりに対応することが可能です。しかし、裁判権の及ばない外国に子どもを連れ去られた場合、他方の親が、果たして子どもを日本に連れ戻すことができるのでしょうか。最近の事例では、夫と不仲になった妻が、子どもを連れてそのまま母国に戻ってしまったため、父親は、子どもと生き別れ状態になったケースがあります。
夫婦が不仲でも、互いの親は、子どもとは血縁関係にあります。親が、子どもと会える（面接交渉権）のは、人間として当然の権利です。たとえ、国境を異にしても、親が子どもに会う権利を奪ってはいけません。この問題では、日本側に問題がありそうです。
１９８０年（昭和５５年）、ハーグ条約というのが制定されました。
この条約は、加盟国間において、親による国際的な子どもの連れ出し行為に対して、迅速な子どもの返還を請求できることになっています。日本が、この条約を批准（承認）し、国内法を整備すれば、一方的に連れ去られた子どもの返還が可能になるのです。
欧米を中心として、すでに、世界の８０か国近くが批准し、条約加盟国になっています。先進国ではほとんど加入しています。国際離婚して、日本に子どもを連れ帰る日本人妻が多く、現に、カナダやアメリカから、条約を批准していない日本が批判を浴びています。
どうも、アジア系の国々が加盟しておらず、人権感覚の後進性を疑われています。日本が加盟すれば、逆に、外国に子どもを連れ去られた場合でも、ハーグ条約によって、加盟国に対し、この引き渡しを求めることが可能になるのです。
都議会議員選挙の後、国会審議が止まっています。国会議員は、法律の制定改廃が仕事でしょう。いくら、総理大臣の問責決議が参議院で可決され、衆議院議員選挙が近いからといって、国会議員たるもの、国会審議を放置するのは、無責任すぎます。多くの大事な法案が、廃案になりそうです。馬鹿げています。日本は、ますます国際社会から取り残されそうです。野党の民主党も、いくら政権交代の可能性が大だとしても、国の政治は、与野党が協力して、粛々と動かすべきでしょう。
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