International Bar Association: A Commentary on Conciliation of Domestic Matters

45 Pages·1952·1.355 MB·English

by  Yoshimatsu Terashima (auth.)

ISBN 978-94-011-8154-9 ISBN 978-94-011-8782-4 (eBook)
DOI 10.1007/978-94-011-8782-4
INTERNATIONAL BAR ASSOCIATION
MADRID CONFERENCE 1952
A COMMENTARY ON CONCILIATION
OF DOMESTIC MATTERS
by
YOSHIMATSU TERAsHIMA
COXTEXTS
page
1. Preface . . . . . . . . . . . . . 4
CHAPTER I. INTRODUCTION 7
2. Amendment to the Civil Code. and Domestic Relations Law
and the Family Court. . . . . . . . . . . . . . . . . . 7
1) The New Constitution and Fundamental Concept of the
Revised Civil Code and Domestic Matters Conciliation 7
2) Nature of the Law of Adjudgment of Domestic Matters and
the Mission of the Family Court. . . . . . . . . . . . 8
3. Organization of the Domestic Relations Adjudgment Division
in the Family Court . . . . . . . . . . 8
1) Adjudgment ........... . 8
2) Conciliation . . . . . . . . . . . . 9
3) Exclusion, Challenge and Evasion. . . 9
4) Democratic Nature of the Family Court 9
4. History of the Family Court. . . . 9
CHAPTER II. PRACTICAL BUSINESS. . . . 10
Section I. General Remarks 10
5. Significance of Domestic Matters Conciliation 10
6. Nature of Domestic Matters Conciliation 10
7. Method and Object of Conciliation . . 11
8. Characteristics of Conciliation . . . . 11
1) Principle of Simplicity . . . . . 11
2) Saving of Time, Labour and Cost. 11
3) Principle of Closed-door Session . 11
4) Friendliness and Understanding . 1 1
5) Kindness and Politeness. . . .. .. 1 1
6) Settlements Made Under Tangible Propriety. 11
7) To be Settled on Mutual Agreement and Consent 12
8) Neither Party Wins or Loses the Case. 12
9) No Excessive Misery for Either Party. 12
10) Relief from Poverty . . . . . . . 12
11) Misapprehension Dispelled. . . . . 12
12) No Feeling of Resentment Retained 12
2 CONTENTS
page
13) Friendship Restored . . . . . . . . . . . . . 12
14) Desirable Settlement Obtainable . . . . . . . . 12
15) Human Rights Extended and Democracy Pervaded 12
16) Executing Organ of Social Policies . . . . . . . 12
Section z. I nterjJretation 01 Otticial Duties . . . . . . . 12
9. Primary Object is to Meet Confidence and Expectation 12
10. Service to the Populace and Constant Propagation . . 13
11. Function and Conciliation Adjusting Office . . . . . 13
12. Interview and Correspondence with Interested Parties . 14
13. Closed-door Sessions . . . . . . . . . . 14
14. Investigation of Records and Taking Notes 14
15. Filing of Case Cards . . . . . . . . . . 15
Section 3. General Procedures . . . . . . . . . . . . . .. 15
16. Disposition from Appearance to Commencement of Conciliation 15
17. Opening, Progress and Conclusion of Conciliation 15
1) Opening of Conciliation . . . . . . . . . 15
a) Admittance to the Assigned Room . . . 15
b) Elucidation of the System. . . . . . . 15
c) Hearing of Actual Circumstances. . . . . 15
d) Report of Progress and Course of Conciliation 15
e) Taking Evidence. . . . . . . . . . . . . 16
I) Regulation and Induction. . . . . . . . . 16
g) Period of Continuing Action. . . . . . . . . .. 16
h) Change in Conciliation Course and Conciliation Terms 16
i) Decision of the Conciliation Commission. . . . .. 16
i) Secrecy of Conferences . . . . . . . . . . . .. 16
2) Formation of Conciliation, Conciliation by Adjudgment,
Compulsory Conciliation, Withdrawal, Unsuccessful Con-
ciliation and Improper Application for Conciliation 16
a) Formation and Validity of Conciliation 16
b) Raising of Objections. . . . 16
c) Title of Obligation . . . . . 16
d) Withdrawal. . . . . . . . 16
e) Treatment of Absentee Cases 16
I) Failure in Conciliation 17
g) Improper Application. . . . . . . 17
18. Acceleration and Settlement of Conciliation . . . . .. . 17
19. Protocols to be Signed by Conciliation Commissioners . . .. 17
20. Disposition after Termination of Conciliation Until Leaving
the Court . . . . . . . . . . . . 17
Section 4. SPecial Procedures. . . . . . • . • . 18
21. Representatives or Attorneys-at-Law. . . . . 18
22. Valuation of Real Estate and Taking Evidence . 18
23. Cases concerning Domiciles outside Jurisdiction 18
24. Order of Emergency Measures . . . . . . . . . 19
25. Enflux Procedures for Receiving Food Allocation . 19
26. Welfare Disposition ............ . 19
27. Hearing Opinions of Minors ......... . 19
28. Disposition against Absentees . . . . '. . . . . . . . .. 20
29. Place of Money Payment Set Forth in Conciliation Terms 20
30. Re«?o~mendation to Relief Committee of the Lawyers' As-
soclation ..•............... 20
Section 5. Standards 01 Domestic Matters Conciliation 20
31. Standards of Domestic Matters Conciliation . . . 20
CONTENTS 3
page
1) Legislation and Principle for Domestic Matters Concili-
ation Standards. . . . . . . . . . . . . . . 21
a) Important Legislation . . . . . . . . . . . 21
b) "I,r;dividual Dignity" and "Essential Equality of the
Sexes . . . . . . . . . . . . . . . . . . . 21
c) "Principle of Respecting Family Life" 22
d) "Principle of Faith and Trust". . . . . . . 22
e) Laws and Ordinances relating to Conciliation. 22
2) Morality. . . . . . . . . . .. .... 23
3) "Principle of Tangible Propriety" . . . . . . . 23
Section 6. Conciliation Terms . . . . . . . . . . . 24
32. Creation and Kinds of Domestic Matters Conciliation Terms 24
1) Cr.eat,i,on of "Concretely Appropriate Terms of Concili-
atIon . . . . . . . . . . . . . . . . . 24
2) Kinds of Conciliation Terms . . . . . . . 24
a) Terms concerning Rights and Obligations 24
b) Terms concerning Manner of Living. . 25
c) Terms concerning \Varning Instructions 25
d) Terms concerning Payment of Costs 25
Section 7 . Methods oj Conciliation. . . . . . . 25
33. Clear-headed Insight and Absence of Prejudice 25
34. Method of Conciliation and Preparedness 26
35. Attitude and Readiness for Conciliation . . . . . . . . 26
36. ~x:pedient of Persuasion and Compromise on Ethics and Re-
Itglon. . . . . . . . . . . . . . . . . . . 27
37. Spirit of Sharing Difficulties. . . . . . . . . 27
38. Don't Blame Their Sins and Errors . . . . . . 28
39. Avoid Discussion and Talk with Friendliness . 28
40. Synthetic Judgment covering the Whole Range 28
41. Women's Imploration for Understanding .. 28
42. Dismissal of Children. . . . . . . . . . . . 29
43. Feudalistic Families to be Regenerated 29
44. Security of Independent Livelihood. . . . ... 29
45. Emergency Measures for Support of Family Members 29
46. Protection of Children and Checking of Divorces . . 30
47. Children's Charter and Protection of Children . 30
48. Immediate Help Necessary to Restore Lost Happiness. 31
49. Best Efforts and Unsuccessful Conciliation. 31
50. Wits and Successful Conciliation 32
CHAPTER III. LEGISLATION. . . . . . . . 32
Section I. Jurisdiction . . . . . . . . . . . . 32
51. Jurisdiction Over Domestic Matters Conciliation 32
1) Jurisdiction Based on Legal Matters. . . . 32
A) Optional Application (Cases class "B") 33
(1) Cases Prescribed in the Civil Code . . 33
(2) Cases Prescribed in the Bankruptcy Law . . . . . 35
(3) Cases Prescribed in the Livelihood Protection Law. 35
B) Cases to be Disposed of by Conciliation Only. . 35
2) Jurisdiction Based on Land. . . . . . . . . . . 35
3) District of Jurisdiction of the Tokyo Family Court. 36
Section 2. Procedures . . . . . . . . . . . . 36
52. Procedures for Domestic Matters Conciliation 36
1) Application for Conciliation. 36
2) Procedures for Conciliation. . . . . . . 36
4 CONTENTS
page
A) Conciliation by the Conciliation Commission . 37
(1) Place of Conciliation . . . . 37
(2) Order for Necessary Measures Prior to Concili-
ation ............. . 37
(3) Instruction of Judges. . . . . . . 37
(4) Decision of Conciliation Commission 37
(5) Secrecy of Conferences . . . . . . 37
(6) Permission or Disapproval of Delegation. . . . . 37
(7) Inquiries, Taking Evidence and Requisition There-
of .................. . 37
(8) Requisition of Inquiries and Request of Report 37
(9) Instruction of Requisition and Request . 37
(10) Travelling Expenses, Daily Allowance, etc. for
Witnesses, Experts, etc. . . . . . . . . 37
(11) Preparation and Omission of Protocol. . 38
(12) Transfer of Procedures ..... . 38
(13) Participation of Interested Persons .. . 38
(14) Inspection of Records and Delivery of Copy of
Documents .............. . 38
(15) Expenses and Party Who Pays Them. . . . 38
(16) Refusal of Conciliation ......... . 38
( 17) Notification to Parties Concerned. . . . . . 39
(18) Supplementing of Conciliation Commissioners 39
B) Conciliation Undertaken by Only One Judge. 39
Section 3. Validity . . . . . . . . . . . . 39
53. Validity of Domestic Matters Conciliation . 39
Section 4. SPecial Adiudgment in Conciliation 40
54. Special Adjudgments . . . . . . . 40
1) Kinds and Procedures . . . . . . . 40
A) Conciliation Adjudgment . . . . 40
( 1) Kinds of Cases . . . . . . . 40
(2) Conciliation by the Commission 40
(3) Essential Conditions. . . . . 40
(4) Adjudgment . . . . . . . . 41
(5) When Adjudgment Is not Made. . . 41
B) Adjudgment of Compulsory Conciliation. 41
(1) Kinds of Cases . . . . . . . 41
(2) Conciliation by the Commission. . . 41
(3) Essential Conditions. . . . . . . . 41
(4) Proper Adjudgment . . . . . . . . . . . 41
(5) Unsuccessful Conciliation on Cases Class "B" 41
(6) When Compulsory Conciliation Is not Made. 41
2) Validity of Special Adjudgment. . 41
Section 5. Notification to Census Registrar . . . . 42
55. Notice to the Census Registrar. . . . . . . . 42
Section 6. Transfer of Conciliation and Adiudgment 42
56. Relation Between Conciliation and Adjudgment 42
1) Transfer of Adjudging Case to Conciliation . 42
2) Suspension of Adjudging Case. 42
3) Unsuccessful Case Class "B" and Its Transfer to Ad-
judgment . . . . . . . . . . . 42
Section 7. Conciliation Priority Principle 42
57. Relation Between Conciliation and. Lawsuit 42
1) Conciliation Priority Principle 42
PREFAGE 5
page
2) Ditto . . . . . . . 43
3) Ditto ...... . 43
Section 8. Penal Provisions 43
58. Penalties . . . . . . . 43
1) Violation of Obligation to Enter Appearance 43
2) Offense against Duty to Keep Secrecy 44
3) Offense against Disclosure of Secrets. . . . 44
PREFACE
The task of conciliating domestic matters is certainly as difficult as
it is holy. A deep-rooted trouble involving human affection and anti
pathy is a hard nut to crack by mere reasoning. There is, of course,
no use influencing any interested parties imperatively or by sheer force.
It is, indeed, a sacred job of sharing their fortunes to adjust their love
of self, restore their former good-will and friendship, encourage their
moaning souls and stabilize their livelihood. For that purpose, we
should do our best to clarify the principle of law and new morality
in guiding them, and to create the most appropriate terms of concili
ation in persuading them. It is desirable to urge the conciliation com
missioners, in their attempt to achieve a success, to give due deliber
ations and reflection besides they have a new sense and a keen
insight. These qualities are, after all, only attainable when they have
been fully trained, and have acquired experiences and novel ideas
in the sphere of their activities.
In January 1950, I was ordered to give a lecture, for some newly
appointed conciliation commissioners, on the subject of "Practical
Methods of Domestic Conciliation." As, however, there was no publi
cation available compiled by my predecessors on the practice and
methods of domestic conciliation at that time, I was obliged to prepare
a text of my own written entirely for the first time from my own
experience, however scanty it was. That part of the description in this
paper under caption of "Practical Business" is the whole text above
referred to, which I admit to be quite insufficient because it was writ
ten in my leisure moments at home at night on account of my busy
day-work in the office. This time again, I was asked to write, for the
interest of some newly selected commissioners, a treatise on "Domestic
Matters Conciliation." Fortunately I could avail myself of last con
secutive Year-end and New Year holidays, and completed two new
chapters on "Introduction" and "Legislation." I also made some
additions to "Practical Business" in regard to "Standards of Concili-
6 PREFACE
ation" and "Conciliation Terms," with further supplementary notes
on "Methods of Conciliation of Domestic Matters."
Inasmuch as the practice of domestic matters conciliation is a most
important job, it is very difficult to describe it adequately. Feeling
a great responsibility imposed upon my shoulder, I have to confess
that I prepared this little pointer with great toil and application. I am
afraid, however, that due to my mediocrity and immaturity I may
have committed some inadvertent errors or dogmatic assertions. I
am glad to say that after having shown this paper to my seniors I
have obtained their approval on its publication.
Just full three years have elapsed since I engaged myself in the
conciliation of domestic matters. But that holy mysterious land of
treasure lies still unconquered beyond many rivers and, mountains
far in the distance. So we pilgrims must devote ourselves heart and
soul to the steady progress of study. If this small work proves a mile
stone towards our destination, I shall be happier than I expected.
Relying on good walkers in our party, I sincerely pray that they will
before long reach the summit of the sacred mountain where they can
command a grand view of the vast field of legislation. (Jan. 1951)
CHAPTER 1. INTRODUCTION
2. A men d men t tot h e C i viI Cod e and D 0 m est i c
ReI a t ion s Law and the F ami 1 y C 0 u r t.
1) The New Constitution and Fundamental Concept of the Re
vised Civil Code and Domestic Matters Conciliation.
In Arts. 11 to 40, incl., of the New Constitution of Japan are stipulated
the "Rights and Duties of the People." Among others, as regards
dignity of individuals and the fundamental equality of the sexes, it
proclaims the individual human rights in Art. 13, the equality of the
people in Art. 14, and marriage and family life in Art. 24. Further in
Art. 25 the right to live and the social welfare are defined, and in
Art. 26 the right and duty to receive equal education. In the New
Constitution we find the declarations: "Marriage shall be based only
on the mutual consent of both sexes and it shall be maintained through
mutual cooperation with the equal rights of husband and wife as
a basis. With regard to choice of spouse, property rights, inheritance,
choice of domicile, divorce and other matters pertaining to marriage
and the family, laws shall be enacted from the standpoint of individual
dignity and the essential equality of the sexes." (Art. 24)
Accordingly, the Civil Code, in pursuance of this fundamental idea,
signified this principle in new Article 1-(2), while proper amendments
were made in respect of 1) abolition of household, head of a family
and family members; 2) freedom of marriage (Civil Code 737, 739);
3) equal rights of husband and wife (Civil Code 750, 760, 768, 818--3);
4) abolition of the right of succession to a house; 5) security of inde
pendent livelihood (distribution of property and spouse's right of
succession), etc.
During the period from May 3, 1947 when the New Constitution
became effective, to January 1, 1948 when the Amended Civil Code
was put into force, the actual practice was done in accordance with
the so-called "Law for Emergency Measures of the Civil Code," in
the same manner as provided in the Amended Civil Code. Further
in Article 1 of the Law of Adjudgment of Domestic Matters the princi-
8 INTRODUCTION
pIe of collective life of family members and relatives is stipulated
thereby clarifying the fundamental idea of adjudgment and concili
ation.
2) Nature of the Law of Adjudgment of Domestic Matters and
the Mission of the Family Court.
Both the Law of Adjudgment of Domestic Matters and the Rules
thereof are the procedural legislation enacted simultaneously with the
Amended Civil Code in order to enforce these substantial statutes;
and the Family Court (former Domestic Relations Court) was opened
simultaneously chiefly in order to enforce these laws and regulations.
In other words, by the enforcement of these legislations as well as by
the administration of the Court, it is contemplated to purge families of
feudalistic traits as early as possible, so that the actual life of the
people may be improved democratically.
The Family Court was inaugurated on January I, 1949 having
combined the former Domestic Relations Court and the Juvenile
Court, which had been operated as from January I, 1948. The present
Court is classified into two general divisions of the Domestic Relations
Adjudgment Division and the Juvenile Adjudgment Division.
The former aims as its ideal to maintain the peace and happiness
of families, and as its chief duty to conduct adjudgment and concili
ation of domestic relations cases, while the latter has a mission to
protect children and take care of their welfare. Thus the Family
Court intends to maintain an integrated function of these two divisions
for the purpose of promoting the effectiveness of the institution.
3. 0 r g ani z at ion 0 f the D 0 m est i c Rei a t ion s
A d j u d g men t D i vis ion i nth e F ami I y C 0 u r t.
This division in the Family Court takes charge of the adjudgment and
the conciliation of domestic relation cases. The judges who handle
these cases are called the judges of domestic relation adjudgment.
(Law Art. 2). A person who wishes to become the judge must have a
professional experience of more than ten years as an appointed judge,
public procurator, lawyer or university professor of jurisprudence, and
must be an appointed judge (saiban-kan) qualified as a judge (hanji).
A person who has been in the capacity of an assistant judge (hanji-ho)
for more than five years may become a judge of domestic relations,
if so designated by the Supreme Court as one authorised as a judge.
(Art. 1 of the Law concerning Special Cases etc., of Authority of
Assistant Judge).
1) Adjudgment.
Adjudgment is made jointly, as a rule, by a domestic matters judge or
INTRODUCTION 9
judges and councillors selected from among civilians who participate
in the conference and express their opinions. (Law Art. 3, par. 3).
As this treatise aims to relate the standards of domestic matters
conciliation, details concerning adjudgment have been omitted here.
2) Conciliation.
Conciliation is, in principle, conducted by a Conciliation Commission
organized by a domestic matters judge or judges and conciliation
commissioners. (Law Art. 3-2). Councillors and conciliation commis
sioners are selected previously every year by the Family Court from
among civilians who have high reputation and good knowledge and
have a thorough worldly wisdom, and, in a specific case, the judge of
domestic relations nominates councillors or conciliation commissioner
each time an application is filed with the Family Court. (Law Art. 22-
2). The domestic matters judge may, if he finds it necessary, appoint
some other persons than mentioned above. (Law Art. 22-3)
3) Exclusion, Challenge and Evasion.
The system of exclusion, refusal and evasion is applicable to the judges
of domestic matters, councillors and Family Court clerks as to their
function, but it is not so with the counciliation commissioners because
conciliation made on the agreement of the parties does not require
such exceptions. (Law, 4; Code of Civil Procedure, 39, 44, 43).
4) Democratic Nature of the Family Court.
In the Family Court is set up the Court of Domestic Relations Com
mittee with civilians of good knowledge as central force, who in respon
se to inquiries, investigate and deliberate on the necessary matters
concerning the over-all management of the Family Court. (Rule
concerning the Court of Domestic Relations Committee). As related
above, it is arranged that the Court of Domestic Relations Committee
participates in the management and operation of the Family Court,
the Councillors attend the adjudgment, and the Conciliation Commis
sion take part in conciliation. This arrangement is most peculiar to the
Family Court, which, we believe, characterizes the democratic consti
tution of the Court.
4. His tor y 0 f the F ami 1 y C 0 u r t.
First existance of the domestic matters adjudgment and conciliation
dates far back to June 1922. They originated in a recommendation to
the then government from the Spec;:ial Legislation Council to the
effect that "In order to settle family troubles amicably on the principle
of morality instead of taking legal forms, it has been found essential to
establish a certain special system." Then at a meeting of the Law
Investigation Committee concerning the Court of Domestic Relations