Judgment of the Supreme Court of Japan
Translated by Sir Ernest Satow
Date of the Judgment 1996.6.24
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.
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 appeal is dismissed. The cost of the appeal is to be borne by the appellant.
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.
a) 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.
b) 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.
c) 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.
d) 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.
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