It’s been six months since the official kickoff of Japan’s lay judge system (roughly equivalent to a US jury), and about 4 months since the first trial began. Already, 84 people have helped adjudicate 14 criminal trials.

So far there have been hundreds of thousands more – 290,000 to be precise – who have received notices telling them they may have to serve (presumably this includes both people who were excused and those still in the selection process). Asahi Shimbun has a feature article (in the Nov 17 print edition) on the ups and downs of the selection process. According to a provided flowchart, the process typically goes something like this:

1. People are randomly selected from the roster of eligible voters and must fill out a questionnaire about their eligibility, which they can then deliver in person or mail in. Many can get out of showing up for an interview at court for a variety of reasons – those 70 or older, those who have not completed middle school, people with “critical matters” to attend to, and those who have been sentenced to imprisonment are among those who do not have to serve.


2. Of the 40 or so who are asked to come to the courthouse, about five stragglers will fail to appear and face a fine.


3. Then it’s interview time. The head judge, the prosecutor, and the defense will hold a speak privately with each candidate. The judge will excuse around three people for the above legally permitted reasons mandated by law. The prosecutors and defense can then excuse up to seven people each without giving any reason. The judge can also suggest to either side that they let someone go. The article quotes a defense attorney explaining that he tends to excuse old people and women because they tend to throw the book at violent offenders. Another defender tries to pick mothers with children the same age as the defendant. A prosecutor let a woman go for keeping quiet and looking at the floor all the time. One judge asked a defender to let a woman go who looked too weak to fully participate (the defender agreed).


4. After the initial selection process, the remaining candidates are decided by lottery. Six people are selected as lay judges, with two others chosen as backups. Those who are not chosen do not know whether they lose the lottery or if the lawyers in the case wanted them out.

Basically, it sounds like otherwise eligible people can get out of lay judge duty by acting unenthusiastic or fatigued because the lawyers want people who will be engaged and interested.

One complaint voiced a man who was excused: if you show up at the courthouse and are chosen as a lay judge, you’re immediately sequestered for about four days. That forces everyone to plan on being away for a few days even though most will be able to go home. The man suggested scheduling the trial a week after the interview day so the lay judges can make arrangements for an extended time away from home. That’s basically how it works in the US, if I recall correctly.

A woman who cares for her ailing mother full time wrote in her questionnaire that she would like to be excused, but the court called and told her she should come anyway. She had to pay for a home helper out of pocket to show up at court. She ended up not being selected, but since there was no way to plan she ended up having to pay for an extra day of care that she didn’t use.

Sadly this story was relegated to the back pages of the Asahi. This scheduling issue is a careless oversight that threatens to undermine the already shaky public support for this new system. Once chosen, almost everyone seems to feel the process was worth it, according to a survey. The next step is lessening the hassle for those who don’t get chosen.

Via the Marmot’s Hole, it appears that South Korea is currently drafting a law that would finally allow for dual citizenship of adults. The dual citizenship law in Korea is currently more or less the same as Japan, i.e. that it is only permitted for minors who are theoretically forced to choose upon reaching the age of majority. In Japan that age is 20 and in Korea is 22, but the principal is the same.

Those who obtain foreign citizenship by birth will be allowed to maintain it if they submit a written oath by the age of 22 not to exercise the rights and privileges of foreigners in Korea by using their second passport.

After the age of 22, men will be allowed to maintain multiple citizenship only if they complete their military service here. Under the current law, dual citizenship holders must choose one nationality by the age of 22 and submit a written pledge to give up their foreign citizenship if they choose their Korean nationality. The revision is aimed at blocking a drain on military manpower.

Those caught using their foreign passports to enter international schools or invest in Korea as foreigners will be ordered to choose a single nationality and automatically lose their Korean nationality if they fail to give up their foreign citizenship within a specified period.

The regulations also apply for other groups such as foreigners who have immigrated through marriage with Koreans; highly skilled foreigners; senior citizens living overseas; those who have regained Korean citizenship after being adopted by foreign families; and Chinese nationals who were born and have lived here for more than 20 years.

Under the current law, foreigners have to give up their foreign citizenship within six months after they obtain Korean nationality.

There are a couple of complications that I’m curious about, however. First, I assume that military service has a maximum age as well, and if so, are older men allowed to acquire dual-citizenship without doing it? The second case is more complicated though-the so-called Zainichi Koreans. Republic of Korea citizens who are permanent residents of Japan, particularly those who came during the pre-WW2 colonial period and their descendants. Will they also allowed to become dual nationals? And if so, what about military service?

Well, as it currently stands Zainichi Koreans, as well as Korean permanent residents in other countries, are exempt from the draft. However, should they “return” to Korea with the intention of becoming a permanent resident there, they lose this exemption.

大韓民国　兵役法
第６５条（兵役処分変更等）
第２項　・・・・・・・・・・・国外で家族と共に永住権を得た者（条件付き永住権を得た者を除く。以下同じ）又は永住権制度がない国で無期限滞留資格を得た者の場合には、兵役免除の処分をすることができる。
第４項　・・・・・・・・・・・兵役の免除を受けた者が国内で永住する目的で帰国するなど大統領令が定める事由に該当するときは、その処分を取り消して兵役義務を賦課することができる。

But will overseas Koreans, such as the Zainichi, even be allowed to acquire dual citizenship? There would probably be no significant issues in a country like the United States, which tolerated dual citizenship-even with countries that require military service, as long as they are a military ally like Israel. But what about Japan? I really can’t say. Although later-arriving Korean immigrants are also technically lumped in with Zainichi, the term is mainly concerned with those who, as I mentioned above, came over as colonial subjects, and their descendants, who were granted an unusual “Special Permanent Residents” status as a diplomatic compromise between Japan and Korea. (Note that the population of Zainichi who “came over during the colonial period and their descendants” is actually larger than the number of Special Permanent Residents, as some thousands returned or moved to Korea when it became independent, but later decided return to Japan, where they had spent most or all of their lives. Those who left Japan and returned were legally counted as new immigrants, and did not qualify for Special Permanent Residency.)

Many have wondered why neither country has ever allowed dual citizenship in the past, particularly for this minority. In fact, when Japan and South Korea were originally discussing the legal status of the Zainichi Koreans, the idea of allowing dual citizenship was floated, but was allegedly vetoed by the US government. As domestic politics in both countries, as well as their relations, have changed a lot over the decades, (and the US probably doesn’t care, or have the power to set policy anymore) a similar conclusion would not necessarily be foregone today, but I still can’t see Japan tolerating South Korea to unilaterally change their citizenship policy in a way that potentially hundreds of thousands of Japan residents. Zainichi Koreans (a group which actually consists of both South Korean citizens and quasi-stateless/quasi-North Korean citizens) have no problem naturalizing as Japanese citizens (they used to), but (at least anecdotally) are also forced to give up their Korean citizenship more strictly than westerners. I can’t see this changing until Japan also changes their own law to allow for adult dual citizenship, and I have yet to see any sign that they plan to do so.

I just arrived in the United States, flying from Narita on All Nippon Airways (ANA). In the bathroom on the airplane, I noticed this prominent warning sticker on the mirror.

At the time I read this, we were flying over the United States, towards a city in the United States, and there was no reference to punishment under US law. I wondered if some people might read that and think that, under the circumstances, who cares? Japan can’t prosecute me here!

Actually, they can—just check out Article 1 of Japan’s Criminal Code:

Article 1 (Domestic Crime)
1. This law applies to all persons who commit crimes inside Japan.
2. The previous section shall also apply to all persons who commit crimes on Japanese boats and airplanes outside Japan.

There you have it—this is the general general rule for the application of criminal statutes in Japan. Also, although not specifically stated here, the criminal laws also apply at Japanese embassies and consulates overseas.

The first four articles of the Criminal Code deal with the different types of applicability. Moving on to the remaining provisions:

• Article 2 concerns acts covered by Japan’s criminal law no matter who commits them, anywhere outside Japan, and include aiding and abetting enemies of the state, the various classifications of treason, and conterfeiting currency, securities, credit cards, public documents, and seals.
• Article 3 concerns acts covered by Japan’s criminal law if carried out by citizens overseas, and include arson, forgery of private documents, rape, bigamy, murder, felony murder, abandonment of a child, kidnapping, human trafficking, robbery, criminal defamation, and larceny. There’s a reason not to natualize!
• Article 3, 2 (第３条の２) covers the applicability of Japanese criminal law to crimes committed against Japanese citizens outside Japan, and includes rape, murder, felony murder, kidnapping, human trafficking, robbery, and similar crimes against the life and body (but not property) of the Japanese citizen.
• Article 4 covers crimes that are committed by public servants overseas, and includes the crime of aiding a fugitives by a responsible guardian (i.e. a cop helping a prisoner escape), forging public documents, recieving bribes, felony murder (occuring while carrying out public duties), and violent abuse committed by a special public servant (i.e. being beaten by a cop).
• Article 4, 2 (第４条の２) covers crimes where Japanese criminal law applies under treaty.

SIDENOTE: Article 39 of Japan’s Constitution prohibits double jeapardy, i.e. being punished twice for the same crime. However, that only applies to the same court punishing someone for the same crime—so for example, a Japanese citizen could serve time in a US prison for, say, arson—and return to Japan only to be prosecuted again for the same crime.

Back in March, while I was traveling, Adam wrote a post about Union Extasy, a two-man union of former workers at Kyoto University who decided to protest the limited term contract system after it forced them out of their staff jobs. While their most visible form of protest was the construction of a tent squat underneath the landmark camphor tree in front of the famous Kyoto University clock tower (a location which is the basis for the university’s logo and the preferred location for graduation photos and the like), they also engaged in the more traditional labor complaint route of filing a formal grievance, conducting formal union/management negotiations (団交), and eventually filing a lawsuit alleging the illegality of the mandatory limited-term contract system.

While the Union Extasy squat was inspired by the “temp worker village” set up in Tokyo’s Hibiya park during the 2008-2009 new years season, unlike that particular stunt it never actually ended. Although they had originally expected it to only last for a couple of weeks before shaming university management into doing something, when they realized that things were going to take a long, long time to resolve, instead of taking down the tent they instead expanded it, adding a public area with seating that was labeled the “Kubi Kubi Cafe.”Kubi is the Japanese word for the head or neck, and has also become a synonym for “firing” or “sacking”, as beheading is the Japanese metaphor of choice for such a practice.

The university was naturally displeased with the ongoing protest, particularly in such a prominent and symbolic location, and filed a lawsuit in May or so (the date escapes me at the moment) against Union Extasy, ordering them to vacate the premises. Why exactly they had or chose to actually file a lawsuit escapes me since I would have assumed that they could just ask the police to remove trespassers without any special legal maneuvering, but I presume there is some legal reason that they took such a course of action. Aside from the existence of the lawsuit itself, there were two things that struck me as rather odd about it. First, that the lawsuit was not filed against the two men (Ogawa and Inoue) but against the Union Extasy organization itself. The second odd point, and this one if very odd, is that they were not seeking an order for the union to vacate the campus completely, but only a specified zone including the area immediately in front of the clock tower. The university was actually so cautious about acting without a court order that they did not even disconnect the power cable siphoning electricity from the clock tower building (which kept the lights and vintage iMac running at night, network connectivity naturally courtesy of the campus Wifi). Inoue let me flip through a folder of documents that had been filed in the case, and sure enough there was a map of the campus with a rectangle drawn around the very specific area. Amusingly, among the supporting evidence was a land assayer’s appraisal of the land value of the entire campus, as if the market value of the national university’s grounds-which I expect is legally impossible to sell in any event-was somehow relevant to the matter at hand.

After receiving a court order to vacate the area, they complied with it-by moving about 10 meters over to another patch of lawn, just far enough away from the camphor tree and clock tower so as to allow an unobstructed view of the landmarks.

I have spent little time speaking with the involved parties since before I went home for the summer and had not been following the progress of their protests or court case, except of course to notice that the protest squat had never ended, but I just got word that the initial verdict of their lawsuit is due out tomorrow, presumably with a party to follow. I will be there tomorrow afternoon after lunch to see how things turn out and will report on it after, but in preparation, here is a gallery of photos I’ve taken at the Kubikubi Cafe.

Read the rest of this entry »

I love Japan, but there are a few things which I really hate about it. The police are one big issue in my mind.

Case in point: Their recent knife kick. I read an outrageous story on Debito’s blog about a 74-year-old American tourist getting arrested for carrying a pocketknife over the maximum legal length (which was recently shortened). It seemed unbelievable until a commenter there pointed out a similar fate for a Japanese manga artist, and then our own commenter Durf shared a story about getting searched for knives.

Fortunately, my few run-ins with the Japanese police have been tame. I’ve been carded a couple of times while biking around central Tokyo, and once got into a spat with a cab driver late at night which the local koban cop helpfully mediated without even checking my papers. Still, reading others’ experiences makes me believe that police here, while helpful when they want to be helpful, also have an undue amount of power and very little responsibility for misusing it.

On paper, this is not how it should be. On paper, there are officials who oversee the police, both on a national level (through the National Public Safety Commission) and on a local level (through prefectural public safety commissions). They are appointed by elected officials (the prefectural governor/assembly or the Cabinet) and serve fixed terms.

But these are woefully ineffectual bodies plagued by systemic problems, as laid out by Japanese Wikipedians:

1. Each commission is located on the premises of the prefectural police headquarters and police officers perform its clerical functions, so there is no guarantee of neutrality or confidentiality.
2. The prefectural government has no authority vis-a-vis the police, so there is no way for local government to investigate or punish the police without going through the commission.
3. The commissions are often packed with local elites who have little experience or interest in police or criminal justice matters.
4. This often creates a conflict of interest, because such individuals won’t want to effectively challenge the local police in many instances.
5. The police end up being taken more seriously and can effectively dictate policy to the commissions. This happens on a local level as well as a national level (between the NPA and NPSC).

For illustrative purposes, the NPSC currently consists of the following individuals:

• Motoo Hayashi (chairman): LDP legislator and state minister in the Aso cabinet (for disaster prevention, Okinawa and Northern Territories policy, and possibly other irrelevant portfolios as well)
• Yukio Sato: Former diplomat and president of the Japan Institute for International Affairs
• Nobuyuki Yoshida: Senior director of the Sankei Shimbun, responsible for its right-wing editorials
• Yoshiyuki Kasai: Chairman of JR Central
• Mariko Hasegawa: Professor in the School of Advanced Sciences at the Graduate University for Advanced Studies who apparently specializes in sociobiology and has a strong academic interest in the biology of sexuality
• Kenjiro Tao: Chief judge of the Hiroshima High Court (an intermediate appellate court), somewhat famous for handing down the verdict against serial killer Tsutomu Miyazaki.

For folks trying to find an affordable apartment near a major Japanese city, one useful resource is the Urban Renaissance Agency (都市再生機構 toshi saisei kikou), usually called “UR” in Japanese.

UR has a vast portfolio of properties. Although the agency is associated with danchi, the intimidatingly enormous apartment complexes scattered around the suburbs of Japanese cities, they also offer upscale center-city properties, such as the high-rise apartments on the south side of Shiodome in Tokyo (within spitting distance of Shinbashi and Ginza).

There are several advantages to renting through UR. Unlike many private landlords, UR does not charge for “key money,” only imposing a (theoretically) refundable 3-month security deposit at the start of the lease. There are also no brokerage fees, and no additional fees to renew the lease upon its expiration.

Perhaps most saliently for the readers of this blog, UR also has few barriers to entry. Anyone with a certain level of income or assets can generally rent a UR apartment, and even the less financially well-off can get into UR by prepaying their lease. UR does not discriminate against foreigners, against unmarried couples, against same-sex roommates or against part-time renters, despite the fact that private landlords routinely shun all four groups for unclear reasons.

How UR came to be

UR is a government-mandated developer established in 2004, and claims to be “probably the largest landload [sic] and developer in the world.” It functions like a private company with an enormous balance sheet, but remains under the supervision of the Land, Infrastructure and Transport Ministry, like its many forebears.

The first forebear of UR was the Japan Housing Corporation (日本住宅公団), established in 1955 to build housing for workers in major cities during the post-Korean War economic boom. JHC built many of the classic danchi around Tokyo and Osaka, starting with Kanaoka (Sakai) and Inage (Chiba). In the sixties and seventies it became more deeply involved in mixed-use “new town” projects in the suburbs, incorporating apartment buildings, single-family homes and commercial properties. Another state-owned Residential Land Development Corporation (宅地開発公団) was set up in 1975 and is chiefly remembered today for its work on the Chiba New Town project (the Hokuso Line in Chiba was once called the “Corporation Line” or 公団線 since the Corporation owned everything around it).

These two entities merged into a single Housing and Urban Development Corporation (住宅・都市整備公団) in 1981, which was renamed to Urban Development Corporation (都市基盤整備公団) in 1999. During this era, the corporation shifted from crowded apartment complexes and suburbs to more spacious and comfortable projects, as the postwar urban population explosion began to slow down and wealthier consumers started to demand more than a few tatami mats surrounded by reinforced concrete.

UR’s other family line starts with the Coal Mining Area Development Corporation (産炭地域振興事業団), founded in 1962. This entity was set up to encourage business development in hard-hit coal-mining regions and to support the re-training of former coal miners. In 1972, the entity’s mandate broadened, and it became the Industrial Relocation and Coal Mining Area Development Corporation (工業再配置・産炭地域振興公団) for two short years, before the Diet settled on a less unwieldy name, Japan Regional Development Corporation (地域振興整備公団), in 1974. For the next thirty years, JRDC worked on various projects to spur industrial and economic development in the nether regions of Japan, focusing on isolated prefectures like Akita, Aomori and Miyazaki.

UR was formed when JRDC was broken up in 2004. The urban planning operations of JRDC were folded into UDC to form UR, while the industrial development operations of JRDC became part of a new (and very awkwardly-named) Organization for Small & Medium Enterprises and Regional Innovation (中小企業基盤整備機構).

The agency is now governed by a special statute which defines its purpose in one enormous run-on sentence:

...to plan the renewal of major cities and regional urban centers where foundational arrangements for effective urban activity and rich urban living have not been adequately conducted in response to changes in social and economic conditions, by conducting services related to improving the arrangement of urban districts and assisting in the provision of rental housing, through increasing urban functions and improving the residential environment in response to changes in social and economic conditions, and by conducting services related to the management of residential housing inherited from the Urban Development Corporation, to plan the sustainable preservation of rental housing which has established a desirable residential environment, thereby contributing to the sound development of cities and the greater sustainability of citizens’ lifestyles.

How UR works

Some UR developments are essentially intended to monetize government land. The Shiodome apartment buildings, for instance, are on the site of what was Tokyo’s main rail freight terminal during the days of nationalized rail. The huge Hikarigaoka development (at the end of the Toei Oedo Line in Tokyo) was redeveloped from Grant Heights, a US military housing complex returned to Japan in the 1970s (itself built atop an Imperial Army air field).

Other developments such as Chiba New Town, the Tsukuba Science City, the Saitama New Urban Center and the Kansai Science City are built on land purchased from private owners, no differently than a private real estate developer might operate.

Besides its government equity fund of 948 billion yen, UR also issues special Urban Renaissance Bonds (都市再生債券), currently totaling about 1.8 trillion yen. But its main source of funding is the Ministry of Finance, which has pumped ten trillion yen of loans into UR through its Fiscal Investment and Loan Program. Another two trillion or so comes from debt investment by domestic banks and life insurance companies.

Aside from being a developer, UR is also a policy arm of the Japanese government, and of MLIT in particular. The government regularly passes down policy statements to UR. This February, for instance, MLIT made the following pronouncement (I’ll spare you a word-for-word translation this time because the original badly needs editing):

Looking at the state of cities in our nation amidst globalization and a developing information age, the largest cities are losing allure and international competitiveness as they stand shoulder-to-shoulder with cities overseas, while they continue to be troubled by the expectation of severe damage in crowded urban areas in the event of a disaster.

Regional urban centers are losing their urban functions as city halls and other public facilities move to suburban locations along with major commercial facilities, as city centers become vacant and as industrial production weakens in outlying regions. The state of these regional urban centers reflects not only a decline in urban functions of the cities themselves, but of their entire surrounding regions.

Cities are the source of our national dynamic. In response to major socioeconomic shifts—the information age, globalization, declining birth rates, aging, depopulation and environmental problems—it is necessary to increase the competitiveness of cities, and to increase their allure using the history and culture of each city, by constructing “compact cities,” beautiful cities where one can safely live in a relaxed environment, and by constructing a society where sustainable development is possible.

This all sounds like fluff so far, but the next few paragraphs start indicating otherwise:

Such urban development demands drawing upon and deploying capital, know-how and other civilian power in these cities to arouse new demand. However, it is difficult to plan improved development through governments and private businesses alone because (among other issues) the legal relations between these parties are complex and difficult to coordinate.

Taking this situation into account, in order to advance the development of new 21st-century urban centers, UR will take a leading role in urban development, spur private investment in cities and contribute to the revitalization of the economy…

Moreover, in the global economic downturn spurred by the subprime loan crisis, our nation’s economy is in a deeply troubled state of falling stock prices, less available capital for businesses and ongoing labor restructuring. As private businesses become less interested to invest in urban development, UR shall strengthen its efforts to spur private demand, and while supplementing private urban development, shall make efforts to plan a shift toward a more domestic demand-led economy.

This month’s American Bar Association Journal features a cover story on the Supreme Court nomination process called “No More Kabuki Confirmations,” complete with a backdrop of paper lanterns, cherry blossoms and ukiyo-e figures.

It’s a “Kabuki dance,” said Joe Biden when he was a senator on the Judiciary Committee. U.S. Supreme Court nominees give the illusion of responding to senators’ questions, but say little of importance.

... Biden’s successor, Sen. Ted Kaufman, told the National Law Journal that the process resembled the Super Bowl—with press coverage all around.

It’s “a subtle minuet,” said Sen. Arlen Specter during the hearing for Justice Samuel A. Alito Jr., “with the nominee answering as many questions as he thinks are necessary in order to be confirmed.”

For his part, Justice Felix Frankfurter, plagued during his confirmation hearing with suggestions that he was partial to communists, favored the athletic comparison. “I thought that it would just be a little room where we would sit around,” he said of the Judiciary Commit­tee hearing. “I found that this was Madison Square Garden.”

Whether likened to theater, dance or a sporting event, the confirmation process for the Supreme Court has become a set piece of punch and counterpunch, with enough irritation left from one process to undermine the next.

A kabuki minuet in Madison Square Garden would be pretty awesome, but probably not all that similar to the Sotomayor hearings.

Note: I started drafting this post about a week ago. Many of these points have since been raised in our educated readers’ comments to Curzon’s earlier post on the Savoie case. I’m going to re-raise them anyway, since I believe the broader discussion of international divorce should continue.

My first trip to court was as a student in an undergraduate law class. I was assigned to sit in a session of the local courthouse and take notes on what happened. This was also where I saw a divorce for the first time. A middle-aged, heavyset black couple with soft Southern drawls came in. The entirety of the divorce went like this:

JUDGE: I understand you two want to get divorced.
WIFE: That’s right, Your Honor.
JUDGE: What is the reason for this?
WIFE: He cheated on me, and lied to me. And we don’t wanna be married no more.
JUDGE: Is this true, sir?
HUSBAND: Yes, it is.
JUDGE: Do you have any children?
WIFE: No, sir.
JUDGE: Property?
HUSBAND: It’s taken care of.
JUDGE: Fine. I declare you lawfully divorced. Take this form to the clerk.
WIFE: Thank you.

I left the courthouse shortly after that, and saw them getting into the same car together to drive home. It was a surprisingly cute divorce.

Since becoming a lawyer and moving to Tokyo, I have gotten an inside seat in some much nastier divorces. Although the law firm I used to work at was primarily dealing with corporate clients, we would regularly get a personal inquiry from, say, a client’s secretary, telling us her brother’s children were stolen by his crazy Japanese wife, and we would invariably try to respond with something productive even though there was nothing particularly productive to do at that point. The problems in resolving cross-border family disputes involving Japan are legion, and have inspired a voluminous website written by an anonymous estranged gaijin dad.

First, some facts

The statistics in this section all come from the Japanese government. You can see the original stats (in Japanese CSV format) here.

One important but rarely-cited fact about Japanese divorce law is that most divorces are consensual and involve little legal process at all. These so-called “kyogi rikon” have consistently accounted for 90 to 95 percent of all divorces during the postwar era.

A lot of this has to do with the ease of the consensual divorce. The two parties simply sign and seal a one-page form (here’s a sample in Japanese) and file it with city hall. It’s possible to get a consensual divorce without ever setting foot in court. But there has to be consensus on what to do with property and children. In this respect, the system makes it comparatively very easy to end a marriage so long as there are no particular disputes to resolve.

If the parties can’t agree to the terms of their divorce, they must go to family court. The first phase is “chotei rikon,” essentially a mediated divorce under the auspices of the family court system. It is supervised by a judge but the mediation is conducted by laypeople. If mediation fails, the family court judge can step in with a “shimpan rikon,” a sort of preliminary judgment, but this can be defeated by either party’s objection within two weeks, and so it does not form a statistically significant number of divorces. The last resort is a “hanketsu rikon,” which is also finalized by the family court judge, but can only be concluded upon a showing of particular legal facts such as infidelity, cruelty or unwarranted denial of sexual intercourse. The parties can reach a settlement during the final court process, in which case their agreement is called a “wakai rikon”; this system was introduced in the past decade and has become a not-uncommon way to resolve marital disputes.

It’s a common misconception that mothers always get custody after a Japanese divorce. In reality, fathers end up with custody in a significant percentage of cases. In fact, until the 60’s, they were more likely to get custody than mothers. Check out this graph.

The thing is that (as stated above) most divorces are reached by voluntary agreement of some kind. Once the case gets into family court, the more-or-less official presumption is that the mother is a more suitable custodian unless the father can prove otherwise. The pre-eminent English academic commentator on Japanese child abduction, Doshisha law professor and periodic Japan Times contributor Colin P.A. Jones (who incidentally lost his own kid in a Japanese divorce proceeding) translated the family court’s mediation manual as follows:

When a child is small, it is thought that the mother should generally be designated custodian. For a young child, the mother’s existence is irreplaceable, and in mediation, custody designations should usually proceed from this basis. [. . .]

When a father is demanding to be designated custodian, it is not uncommon for him to base his arguments on the fact that because he has to work outside the home, his own parents can look after the child. However, it can be said that it is better for the child to live with his mother than with his grandparents. Unless the conditions in which a mother lives are judged unsuitable for the child, as a general rule I cannot approve of awarding sole custody to fathers. Even if grandparents do look after the child, it is likely that matters will arise daily in which they will not pay the same level of attention as a parent.

This manual does not have the force of law; it is merely an official reference for the judges. The practical effect of it is that fathers can only win custody by an overwhelming display of evidence that the mother is unfit to be a parent.

(Aside: Our favorite Japanese prime minister, Junichiro Koizumi, kept his first two children in a consensual divorce in 1982. His wife was six months pregnant at the time the papers were finalized and gave birth after the divorce. Koizumi tried to claim this third child as well, but the matter ended up in family court mediation and Koizumi’s ex-wife retained custody. Japanese Wikipedia interestingly doesn’t even name the third child of Koizumi, apparently because he is no longer legally Koizumi’s.)

What about joint custody? There is generally no such thing as joint custody among Japanese nationals. Visitation rights (面接交渉権 mensetsu kosho ken) may be granted by the court, but are often very limited (sometimes to a few hours once per year), are very difficult to legally enforce, and one parent must still be designated as the custodian whether or not the divorce is consensual. The only way a Japanese child can be registered as being in joint custody is if the child has another citizenship and their parents’ divorce was finalized in another country which allows joint custody. (This is not a “legal” provision per se; it was allowed by a Ministry of Justice circular and could theoretically be changed overnight if the Justice Minister changed their mind about the issue.)

Even outside Japan, joint custody is a sticky subject among parents, academics and jurists. Terrie Lloyd made the following statement in his email newsletter earlier this week:

The view of most [Japanese] judges (based on interviews with judges that we have done in the past) is that kids need to be insulated from the hurt between divorcing parents by giving them just one care-giver. But this is a traditional view and has no basis in fact. Child psychologists outside Japan generally agree that kids need the love and attention of both parents, even if they are divorced. Splitting the kids from one parent naturally causes them to side with the other (Parental Alienation Syndrome: PAS), which causes them to have complexes about the missing parent later in life.

Actually, as a glance at Wikipedia would show (and as Professor Jones acknowledges in the article linked above), PAS has not nearly reached general acceptance in the psychological community or the legal community, even in the supposedly more liberal United States.

(Another aside, at the risk of pissing off all the divorced men in the room: I find the use of PAS theory in custody disputes difficult to swallow. Sure, in theory it’s better for kids to have contact with both parents and view both parents as respectable people. In practice, if the parents can’t hold their marriage together, they probably can’t refrain from filling their kids’ heads with crazy talk about each other. So how is bouncing the kids back and forth between homes, and introducing two conflicting stories between the parents in the process, less traumatic for the kids than having one consistent story?

That said, there is a risk of conflating issues here. It’s one thing to park the children in one parent’s household when there is abuse or domestic violence going on. It may also be a good idea when the two parents absolutely can’t get along and their own discord is harming their children. But there are also many cases where children have no idea what is going on between their parents—only that one parent is going away forever—and this boggles my mind. In those sorts of cases, it makes sense to allow ongoing shared custody as an option, so long as the parents can work out logistics between them and agree to keep their disputes between themselves.)

This brings us to the international aspect of Japanese divorce law. International divorces are common in Japan, but not exactly in the form familiar to readers of Debito.org or crnjapan.com. 7.1% of divorces in Japan in 2007 involved a non-Japanese party. The most common combinations were:

• Japanese husband, Chinese wife (1.97%)
• Japanese husband, Filipina wife (1.82%)
• Japanese husband, Korean wife (1.11%)
• Japanese wife, Korean husband (0.35%)
• Japanese husband, Thai wife (0.33%)
• Japanese wife, Chinese husband (0.22%)
• Japanese wife, American husband (0.14%)

Chinese and Korean family law bear a striking resemblance to Japanese family law. The Chinese and Korean systems emerged from the civil law tradition, and like Japan’s, revolve around the concept of a central family registration system where every citizen is tracked. So that means only 2.74% of Japanese divorces involve a country with a “truly foreign” family law apparatus, and it’s probably safe to say that of the total number of divorces in Japan, much less than one percent involve a non-Asian party. These facts are understandable given that Japanese-Asian marriages form the vast majority of international marriages in Japan.

Let’s ask the question on everyone’s mind, though:

Is the system biased against foreigners?

Yes, it is.

But to some extent, the bias is unavoidable.

Unfortunately, there are no statistics to show how foreign parents generally fare in court-administered divorces here. My conclusion, based on many stories floating around the internet and by word of mouth, is that foreign parents are highly unlikely to win custody of Japanese kids from a Japanese court, whether or not the foreign parent is male or female. And given the fact that moms are more likely than dads to keep the kids, foreign dads should not expect much if their marriage falls apart.

A lot of this boils down to cultural differences. A Japanese judge likely has no idea of how a non-Japanese family operates, and is going to have suspicion regarding what might happen in a non-Japanese household. Suspicions aside, a not-so-worldly Japanese person would probably be unpleasantly surprised by many family quirks that are taken for granted outside Japan.

The same is true for courts in other countries. Chris Savoie, for instance, attacked Noriko Savoie in Tennessee divorce court because she had their 6- and 8-year-old kids sleep with her in her bed. This practice is uncommon in the US and would probably seem strange to an American lawyer or judge, but wouldn’t raise an eyebrow in Japan, where it’s often used simply to save space.

Cultural issues aside, there are also some procedural stumbling blocks for non-Japanese in the Japanese divorce system. These are issues which warrant legal revision, both from an international human rights perspective and from a perspective of citizens’ best interests.

Problem 1: There is no contempt of court

This is really an endemic problem throughout the Japanese legal system, not just in the sphere of family court. Even if you can get a judge to order some action or inaction (like “stay away from X’s kids” or “let X see the kids on these days”), they have no way to enforce that order if the counterparty says “no.” All they can do is levy fines, but even if they do that, the counterparty can simply refuse to pay.

Then your only option is “self-enforcement”—withholding payments and finding ways to exert social pressure. Self-enforcement might work to some extent if the enforcing party is savvy about the local system, but it puts outsiders, particularly outsiders in different countries, at a great disadvantage. Courts need teeth if they are to effectively administer any sort of custody-related arrangements.

Problem 2: The arbitrariness of Japanese nationality and conflict-of-law rules

The biggest legal problem in the Savoie case is that Dr. Savoie is a Japanese citizen and apparently hasn’t taken that fact into account in his legal strategy. The following statutory passages explain what I mean:

法の適用に関する通則法
General Act Regarding the Application of Laws

（本国法）
第三十八条 　当事者が二以上の国籍を有する場合には、その国籍を有する国のうちに当事者が常居所を有する国があるときはその国の法を、その国籍を有する国のうちに当事者が常居所を有する国がないときは当事者に最も密接な関係がある国の法を当事者の本国法とする。ただし、その国籍のうちのいずれかが日本の国籍であるときは、日本法を当事者の本国法とする。

(Home Country Law)
Article 38. If a party has two or more nationalities, then the home country of the party shall be the law of the country in which such party has a habitual residence if such a country exists, and should no such country exist, the law of the country having the closest relationship to that party. However, if any such nationality is the nationality of Japan, the home country law of the party shall be the law of Japan.

According to the International Wedding Association, a Japanese NPO, a citizen would have “habitual residence” by virtue of being recorded in the resident registration (juminhyo) system, unless they have actually lived overseas for five continuous years prior to the date of determination.

（婚姻の効力）
第二十五条 　婚姻の効力は、夫婦の本国法が同一であるときはその法により、その法がない場合において夫婦の常居所地法が同一であるときはその法により、そのいずれの法もないときは夫婦に最も密接な関係がある地の法による。

(Validity of Marriage)
Article 25. The validity of a marriage shall be determined by the home country law of the husband and wife if such law is the same; or if such law does not exist, by the law of the habitual residence of the husband and wife if such law is the same; or if such law does not exist, by the law of the place having the closest relationship to the husband and wife.

（離婚）
第二十七条 　第二十五条の規定は、離婚について準用する。ただし、夫婦の一方が日本に常居所を有する日本人であるときは、離婚は、日本法による。

(Divorce)
Article 27. The provisions of Article 25 shall apply to divorces. However, if either husband or wife is a Japanese person with a habitual residence in Japan, [their] divorce shall be based on Japanese law.

So let’s run down the facts.

• First, Christopher and Noriko were married in Japan.
• Then Christopher became a Japanese citizen. So far, so good.
• Then Christopher took his wife to the US and divorced her there. But their mutual home country law was Japanese law, so their divorce would have been invalid under Japanese law.
• Having been improperly divorced for Japanese purposes, Christopher then married Amy.

Whether or not we agree with the propriety of a U.S. divorce for the Savoies, turning Chris into a bigamist is a pretty illogical outcome. I think he could get around prosecution given that he had no apparent intent to be legally married to two people at the same time.

That said, I think Christopher may intend to rescind, or deny the validity of, his own naturalization. The US Consulate says they want to help him out, which should not be the case if he really is Japanese (you can’t get consular protection in a country where you are a citizen). It’s a bizarre argument, and I believe it would fall flat on its face in court as an “abuse of rights” or something similar.

The solution to this problem, inasmuch as there is one, is to revise these conflict-of-law provisions so that Japanese citizens have the clear ability to divorce in a foreign forum under foreign law if they have some requisite connections to that forum. (Formally allowing dual citizenship, and getting rid of the odd ability to rescind one’s own citizenship following naturalization, wouldn’t hurt, either.) But both of these ideas are in conflict with another feature of the Japanese family law system.

Problem 3: The koseki is a moronic concept

If you don’t know what the “koseki” is, read this. The entire family law system in Japan is based on the premise of a giant hierarchical registry limited to citizens.

The koseki-worship in the civil law system here is responsible for a lot of the family law rules. Children legally exist as an entry in their parents’ koseki page. Parents have a koseki page by virtue of being married. When they divorce, they revert to separate koseki pages, and their children must go one way or the other. Thus, in a sense, they legally lose title to their children. And, as many of our readers undoubtedly know, foreigners do not appear on the koseki at all, except as “notes” on their spouse’s page.

Why is this entire system necessary? Familial relations are a personal matter, and are often quite abstract in nature. Is a parent less of a parent because they remarried or because they don’t have a Japanese passport?

The notion of organizing society around households is unnecessarily feudalistic for the modern age, and something more flexible would be better for citizens and non-citizens alike—particularly those for whom familial roots have historically been a source of discrimination (the burakumin, naturalized Koreans and others).

Personal footnote

I don’t have a wife or kids yet. Debito, who has written extensively about his own divorce and loss of children (a dreadfully sad story, but an excellent overview of how the system works here), chided me in a Facebook comment thread for daring to state my opinions while I lack skin in the game. Lest anyone get the wrong idea, I respect Debito, who gave me, Roy and Curzon the privilege of hearing his story in person a good year before he made it public. But where I come from, having no skin in the game is called “objectivity,” and does not by any means disqualify an opinion.

For what it’s worth, I do have some skin in the game, as I am engaged to get married early next year. While I have given up on my farcical plans to transfer my kids to an offshore investment vehicle, I am still very cognizant that the law (even as I think its mechanics should work) may bite me in the rear someday if my marriage ever breaks down.

Sadly, a lot of the discussion surrounding these issues, whether regarding particular cases or the system in general, devolves into parental narcissism, envy and finger-pointing. The whole framework of marriage, divorce and custody is ultimately not about what Mom or Dad wants: it’s about protecting children and giving them a chance to inherit the world as capable individuals. So, as I see it, we have to approach it from that perspective regardless of which side we occupy on the wedding cake.