カテゴリ: Hiroshi Tobita

Recently, in Japan, adultery allegations against a young congresswoman were widely reported.
The woman in question used to be a member of the very popular pop group, “Speed”, but is now a single mother of a son with a hearing disorder, and a member of the House of Councilors.
Last month, one magazine reported suspicions of a love affair between her and a man in Kobe City Council.

In the magazine, there was a picture of her holding hands with the male city councilor while sleeping on the Shinkansen (Japanese bullet train), and according to the magazine, they spent two nights together at her mansion and a hotel.

She admitted her 2-night stay with him, but she emphasized that as he was now in the process of a divorce mediation procedure against his wife, she did not cross a line. "Not crossing a line" indicates that there is no sexual relationship between them so far.

Why did she say "I have not crossed the line?"
Is there any legal significance here?
I do not know the truth (only the two people involved would know this), but let me consider this from a lawyer's point of view.

According to reports, the city councilor has been married and has two children. However, according to him, his marital relationship broke down 5 to 6 years ago, and they began to live separately since the summer of last year, and (as already mentioned) are currently following divorce proceedings.

Under Japanese family law, a husband and wife can divorce by mutual agreement, but if the agreement does not hold, the court can order a divorce only due to the following:

1) An act of adultery.
2) If one party was abandoned by the other in bad faith.
3) If it is not clear whether a spouse is dead or alive after at least three years.
4) In the event of severe mental illness.
5) In the event of a grave cause that deems continuation of the marriage difficult.

Additionally, according to the judgment of the Supreme Court, a divorce claim from the party who caused the failure of the marriage by an act such as adultery, is rejected.
In other words, for example, if a couple has already been separated for a long period of time due to the husband's adultery and it is determined that there is a grave cause that makes the marriage difficult, the husband's divorce claim will be dismissed. This is known as “the theory of the spouse who caused the break up”. Because of this, I guess the councilors couldn’t admit a sexual relationship.

Of course, in this case, because the man has already began to live separately from his wife and insists that the marital relationship has already broken down, there is a possibility that any current case of adultery did not cause the collapse of the marital relationship. However, according to the report, the wife claims that their marital relationship has not yet broken down and argues that he only unilaterally began separation. Therefore, his assertion that the relationship with the congresswoman started after the collapse of the marital relationship might be denied. Considering this risk, maybe they could not admit to a sexual relationship.

By the way, since they were holding hands while sleeping on the Shinkansen and spent two nights together, it would be normal to assume that a physical relationship exists. If so, does claiming that "a line has not been crossed" become disparaging to their honesty?

My guess is as follows:

First of all, we have to know that Japanese judges tend not to recognize the fact of adultery unless there is direct evidence. This is because Japanese judges know well that the theory of the spouse who caused the break up is often actually unreasonable. In general, many cases to which the theory is applicable have continued for a long time, and the marital relationship completely collapses. Therefore, if the judges do not intervene, only an unproductive, negative relationship remains. Thus, the Supreme Court has decided to make an exception to the theory. They stated that:

If the claim is from a spouse who caused the break up, but the separation period is comparable to their age and their cohabitation period, with no children involved, as long as the judge does not recognize any special problems that would result in unfair events due to divorce, such as one party suffering mental, social or financial hardship, the judge cannot deny the claim because it is from the spouse who caused the break up.

However, since the hurdles required by this court judge are high, the theory continues to bring disagreeable results. Therefore, my guess is that judges do not want to get too involved with, or admit too much about the fact of adultery.

Currently, a review of family law is also being discussed in our country. One idea is that if a household exists separately for a certain period of time, regardless of the cause of separation, divorce is granted.

In my opinion, such thought is more appropriate than the theory of a spouse who caused the break up.

Although this news did not receive thenationwide attention that it deserved, the revised Civil Code draft(Relationship Transaction Law) was established in the National Assembly on May26, 2017.

 

Actually, the current Japanese Civil Code(Relationship Transaction Law) was established in April 1896, so this revisionwas made about 120 years after its establishment. In 1896, the Sino-JapaneseWar had been over for a year, while in the U.S., Utah became the 45th state,and in Athens the first international Olympic Games were held.

 

Since the current civil law isextraordinarily old, some archaic words that most of us cannot read remain init. Furthermore, supplementary parts of it are subject to interpretation.Therefore, we do not understand its meaning by only reading the text.

Moreover, since the time of theestablishment of the Civil Code, there have been technological developments andadvancements, such as cars, airplanes, the Internet, and so on, which we hadnot accounted for, and these have become pretty important now.

These are the reasons why the JapaneseCivil Code has been revised.

 

Some main examples of the revisions are asfollows: First, the period of extinctive prescription, during which the claimdisappears without being exercised, has been revised. In principle, it was tenyears, but restaurant bills and lawyers' fees, etc. were two years and wecannot show rational reasons for this nowadays. Therefore, this revision wasunified into a uniform period of five years.

 

Next, the interest rate in the case ofperformance delay. Previously, it was 5%, but this was too high for the lowinterest rate era of deflation, so it was lowered to 3%. In addition, we willuse a floating system in order to review the rate every three years.

 

Third, review of the joint guaranteesystem. From now on, if the notary does not confirm the intention of theguarantor, the guarantee will not be accepted. By allowing the opportunity torethink during the process of confirming the notary, easy agreement to a jointguarantee is prevented.

 

Fourth, the rule of the lease securitydeposit. Before, the Civil Code had only one Article on the security deposit(619 (2)), and it was very crude. But this revision clearly states that thelessee is responsible for repair costs due to age-related deterioration.

 

Fifth, regulations concerning 'contracts'presented to an unspecified number of consumers, such as Internet mail ordershave also been newly established. Consumer protection is aimed at byprescribing that those with content deemed to unilaterally harm the profits ofconsumers are nullified.

 

This revised Civil Code bill was summarizedin the proposed amendment over a period of more than five years afterconsultation with the Legislative Council, and a bill was submitted to the Dietin March 2015. However, the Security Treaty and the political issues at thattime had prolonged the hearing in the Diet. The Diet thus finally passed therevisions other day.

 

Some legal officials said there is no needto change the current civil law, but I think that the current Japanese CivilCode was extremely outdated. Since the revised Civil Code is to be enforcedwithin 3 years from promulgation, it is still not applied to our lives. But asa legal professional, I think that we have to establish a better society byimplementing this civil law.

1   If your honor is damaged on the net, thefirst thing to come up to my mind is to make a request to delete the defamationpage directly to its administrator. However, some malicious administrators donot meet this.

2.   Then, next, we will consider whether wecan request deletion by using court procedures such as provisional dispositionand litigation. However, for example, if the location of the administrator isnot described on the website (including WHOIS information), or even in the caseof being described, when it is a paper company such as Argentina or USA orNevada state, there are some problems.

First of all, when you do not know theaddress of the administrator, you cannot use temporarily disposition orlitigate because the court does not come to know the delivery address in thefirst place. In addition, in the case of a foreign paper company, provisionaldisposition and litigation can be brought under certain requirements, but evenif you win, because they are located outside Japan, there is no way to forceprovisional disposition decision or judgment except that the foreign countryallows forced enforcement by using Japanese judgment and so on. After all, as ajudgment of the court came out, there is no other choice than to"ask" to delete it arbitrarily. In other words, you cannot delete ona website that does not listen to "your wish".

3.   Now is it possible to delete theslanderous article and not to display it on the search engine? This is a way todelete search results, which has been drawing attention recently.

Currently, when we browse web pages, weoften search the desired page with a search engine such as Google. Therefore,unless it is displayed as a search result in the search engine, it becomespractically difficult to access the page (unless you know the URL in advance).This will result in an effect similar to page deletion. Regarding deletion ofthis search result, the Tokyo District Court decided on October 9, 2014, and itbecame a topic because it approved it for the first time.

Such deletion of search results can be aneffective solution against defamation on the net, but it should be noted thatthe Supreme Court of Japan does not have any examples yet recognized. Also inthe judgment of the Supreme Court issued on January 31 this year, deletion hasbeen denied in conclusion.

Also note that as a lower court's tendency,it is said that defamation must be contained in the search result title orsnippet (excerpt of the page itself) itself. Even if the site which is caughtin the search itself has a terrible libelous expression, even if the title orexcerpt displayed as the search result does not contain a libelous expression,currently it seems difficult to delete the search result.

In addition, depending on the judgment ofthe lower court, there is a strict judgment that the deletion is not permittedunless it is obvious from the expression itself that it is non-truthful.According to this judgment, if the honor is damaged by a false statement, it iseasy to prove that it is false, but if it is not known from the defamationexpression itself that it is false, the deletion will not be permitted.

In this way, cases of deletion for searchresults are also limited.

4.   Then, for example, among defamation onthe net,

A foreign paper company is anadministrator
The administrator did not accept any deletion
Title displayed on search result itself and snippet does not includedefamatory expression
In such cases, it is very difficult to take a legal action.

Apart from legal responses, there are alsoso-called SEO countermeasures and anti-SEO countermeasures. These aretechnically an attempt to lower the search ranking of libelous pages, but theinformation of defamation will not disappear.

     More than anything, despite the occurrenceof an illegal event, there is no legal way to respond, which is a very problem. 
As Japan is a legal nation, it is necessaryto block such loopholes. There should not be such thing that a law - abidingcountry does nothing to solve the problem of such slanderous sites. I hope wewill respond promptly by legislation or justice (in some cases, establishing aninternational cooperation system on deletion of articles).

If a debtor does not pay one million yen although he or she is obliged to pay it, the creditor will sue the debtor and get the decision from the judge that orders debtor to pay one million yen to the creditor.

When the debtor does not pay it voluntarily in spite of receiving the order, based on the decision, the creditor can appeal a compulsory execution to the court.

That is, the creditor can have the court attach the debtor’s properties, convert them into money, and use it for the payment of the creditor’s account receivable.

By the way, it is rare that the debtors who cannot pay anything own a real estate.
Therefore, even if the creditor has the right to attach the debtor’s property, in most cases, the creditor can only attach the money in the debtor’s bank account.

However, in Japan, the attachment system to the bank account does not work well.

Since if the creditor tries to appeal the attachment of the money in the debtor’s bank account, it is interpreted that the creditor needs to identify the debtor’s bank account as to what bank and what branch the debtor’s bank account belongs to (but not needed the number of the debtor’s bank account.) 

In Japan, there are a lot of banks and each banks have a lot of branches.

Usually, creditors do not know about which bank or which branch debtors have their account in.

Especially, if there are no continuous deals between the creditor and the debtor, for example if the creditor is the victim of a tort case, the creditor do not know the information about debtor’s bank account.

And even when the creditor knows the debtor’s bank account information, if debtor changes his bank, the debtor can easily escape the attachment.

From above, In Japan, the effectiveness of the civil judgment is extremely weak and it has been said that civil judgment is like “a Rice cake, which drew a picture” or “completely useless less that shit”.

However, according to the article of Asahi DIGITAL dated on August 5, 2016,

Ministry of Justice will try to implement the system that makes financial institutions disclose the information about the account that was owned by the person who owed obligation to pay and was judged to pay it in the court, in order to prevent the nonpayment of the compensation or the expense of bringing up a child. (translated by Hiroshi Tobita)


This is aimed at using compulsory execution easily in the court. In this autumn, Ministry of Justice will seek an opinion about the draft of revision of Civil Execution Act to Hosei Shingikai that is an advisory body of a minister of Justice, and try to submit it to the parliament in about 2018.

According to the article, the details of the Act  are as follows: 

Under the revision draft of the Act,creditors may request the court to investigate whether the debtor has his/her account in financial institutions in which the debtor supposed to have an account such as a bank around the debtor's address.
The court inquires it to the financial institution, and if there is a debtor's account, the court will order each headquarters of the financial institutions to disclose the branch name that has accounts to be attached, the kind of the account, the balance of the account, on so on.

Creditors do not need specify the name of financial institutions where debtor has his/her account. It is enough to get some idea of them.  (translated by Hiroshi Tobita)

This is a good news in Japanese judicial circle.


Recently, the number of the cases in the court has been inclined to decrease. I think this is because not only the populations of Japan is decreasing, but also there is a common recognition that the court in Japan is not useful. 

If civil judgement is not effective, Yakuza (Japanese mafia) will be rampant to debt correcting works as old time.

I hope this revise will make civil judgement of our country more effective and useful.

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I would like to explain the regal rules concerning divorce in Japan.

First, in Japan, if a married couple agrees with their divorce and submits the official divorce registration papers to a public office, the divorce is valid. We call this kind of divorce a “mutual agreement divorce”. In this divorce, the reason for divorce is not important. Mere “incompatibility” is acceptable. Actually, we do not even need to write the reason for divorce in the official divorce registration papers.
About 70% of the all divorce cases in Japan are mutual agreement divorces.

If the couple cannot talk with each other about a divorce, the husband or wife who would like to divorce has to file a petition for divorce conciliation to the family court. 
In conciliation, basically two members of a mediation committee intervene between the husband and wife, which lets them talk about divorce smoothly. A conciliation date in the family court is held once a month.
Divorce conciliation is valid only when husband and wife agree to divorce.
Therefore, basically mutual agreement divorce and conciliation divorce are almost the same, except that the place of negotiation is family court and a mediation committee intervenes.

If a conciliation divorce is not valid, the husband or wife who would like to divorce must sue the other party for divorce. If the divorce is permitted in the sentence, the divorce is valid, even if the other party does not give consent to divorce.
However, the court can order divorce only when it recognizes the following items between a couple (Civil act 770Ⅰ).
1) if a spouse has committed an act of unchastity;
2) if abandoned by a spouse in bad faith;
3) if it is not clear whether a spouse is dead or alive not less than three years;
4) if a spouse is suffering from severe mental illness;
5) if there is any other grave cause making it difficult to continue the marriage.
In most cases, plaintiffs insist on 5) “any other grave cause making it difficult to continue the marriage”. Although mere “incompatibility” is not regarded as a “grave cause”, by adding the fact of separation or other items, they can argue it as a grave cause. 

All divorce court cases are not necessarily settled by the judge’s sentences. In the process of the court procedure, they are often settled by judicial settlement. About 30% of all divorce cases are settled by judicial settlement. It is made by the party’s agreement. So it is basically the same of the mutual agreement divorce and conciliation divorce.

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