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The Revision of the Civil Code of Japan: Provisions Affecting The Family

Published online by Cambridge University Press:  23 March 2011

Kurt Steiner
Kurt Steiner
Affiliation:
Tokyo, Japan
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Extract

It has often been stated that the core of Japan's social structure is the family system. Research on any aspect of Japanese life is likely to lead to that subject sooner or later, because of its importance. The Japanese themselves, particularly the conservative groups, understand this fact more clearly than do most Westerners. They find in the family system the essence of Japanism, contrasting it to individualism, which forms the basis of Western culture. In more recent times, individualism was presented as a menace to Japan's “national polity” and as a “dangerous thought.” It became the ideological whipping boy of Japanese nationalists. The term “individualism” itself assumed the abhorrent qualities which the words “nihilism” or “anarchism” had in Europe at the turn of the century. Even today “individualism” means hardly more to many Japanese than selfishness and an antisocial attitude.

Type
Articles
Information
The Journal of Asian Studies , Volume 9 , Issue 2 , February 1950 , pp. 169 - 184
Copyright
Copyright © The Association for Asian Studies, Inc. 1950

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References

1 Official gazette extra, no. 6, June 27, 1946.

2 Thus, in gambling and black market gangs, the “boss” is referred to as oyabun (verbally: parent part); the followers as kobun (verbally: children's part); similarly, the landowner is called oyakata (parent) and his tenant farmer kokata (child).

3 Compare Hozumi, N., The new Japanese civil code as material for the study of comparative jurisprudence (Tokyo 1912), 56–58.Google Scholar

4 Becker, De, The principles and practice of the civil code of Japan (London: Butterworth & Co., 1921), vi.Google Scholar

5 Similarly, Professor Kawashima Takeyoshi in discussing the present revision called the family system of the civil code “the family system of the Samurai Caste” and speaks of the “Confucianistic family morality of the feudalistic ruling classes” (Mainichi shimbun, August 19, 1946).

6 Article 98 of the new constitution states that no public law or ordinance, and no imperial rescript or other act of government, or part thereof, contrary to the provisions of the constitution, shall have legal force or validity.

7 Official gazette extra, no. 6, June 27, 1946.

8 This became article 24 in the finally adopted form of the constitution.

9 Official gazette extra, no. 25, August 29, 1946.

10 Ibid..

11 Official gazette extra, no. 27, March 30, 1947.

12 The rest of the article deals with the abolition of the peerage system.

13 For an opposing opinion from an authoritative source, voiced in 1912, see Hozumi, 65.

14 The words “belonging to the same house” in article 772 lead to such anomalies as the fact that the divorced mother with whom the child had been living was not required to consent, since she left the husband's house to which the child belonged (art. 739). The father with whom the child did not live, however, had to give his consent.

15 See Hozumi, 67.

16 See, for instance, article 1931 of the German civil code, article 757 of the Austrian civil code, and articles 462 and 463 of the Swiss code.

17 It is important to distinguish this right of the head of the house from the parental power to fix the place of residence for a minor, which was retained by the new code (art. 821).

18 Also, unfaithfulness on the part of the wife was always adultery in the criminal sense, unfaithfulness on the part of the husband was adultery only when the other party was a married woman. The amended penal code no longer considers adultery a punishable crime in either case.

19 Courts of Domestic Relations, which were later integrated into Family Courts, were newly created in connection with the civil code revision. At the same time, all regulations concerning the family council have been eliminated from the civil code.