Women and Justice: Court: 最高裁 (Supreme Court of Japan)

Domestic Case Law

平成16(受)1968 (2004 (Ju) No. 1968) 最高裁 (Supreme Court of Japan) (2006)

Gender discrimination, Harmful traditional practices, Property and inheritance rights

Two female members of a certain local community which have collective property rights to a common land (called a "common" or a "hamlet") petitioned the court to decide the unconstitutionality of a traditional practice which determined membership and property rights within the community. The court held that this custom which excludes female descendants who married outside of the community, is "contrary to public order and therefore null and void" under Article 90 of the Civil Code. The court held that "the male descendant requirement discriminates against female descendants only because they are females" and it is unreasonable and against the constitutional principle of "essential gender equality."

上告人らは、本件で問題となっている入会地について入会権を有していた者の女性直系卑属であった。本件は、上告人らが、本件における習慣のうち入会権者の資格を男性直系卑属に限ることが公序良俗に反して無効であるなどと主張した事案である。最高裁は、男性直系卑属要件は、民法第90条の下「公序良俗に反しており、したがって無効である」と判断した。 裁判所は、男の男性直系卑属要件は、専ら女子であることのみを理由として女子を男子と差別したものというべきであり、性別のみによる不合理な差別とし、男女の本質的な平等という日本国憲法上の基本的原則に反するとした。

平成16年(あ)2199 (2004 (A) No. 2199) 最高裁 (Supreme Court of Japan) (2005)

Domestic and intimate partner violence

The defendant-husband, who had joint parental authority with his wife, forcibly took his son away from his mother. The court held that the defendant's act constituted kidnapping, as there were no special circumstances which made the defendant's actions necessary, and the act was "violent and coercive." In addition, the court found that the act of kidnapping the child could not be justified even though the defendant had parental authority.


平成14年(あ)805 (2002 (A) No. 805) 最高裁 (Supreme Court of Japan) (2003)

Domestic and intimate partner violence, Trafficking in persons

The defendant-husband of Dutch nationality, married but separated from his Japanese wife, forcibly took his two-year-old daughter away from her mother with the purpose of taking her away to the Netherlands. The court held that the defendant kidnapped his daughter in a "malicious manner" when he pulled her by the legs, hanged her upside down and wedged her between his arm and waist, a criminal offense of kidnapping for the purpose of transporting the kidnapped person to a foreign country, under Article 226(1) of the Penal Code.

本件は、オランダ国籍で日本人の妻と婚姻していた被告人が、当時2歳の娘をオランダに連れ去る目的で、娘の足を引っ張り、逆さに吊るし、腕と腰の間に挟んだりして、母から娘を強制的に連れ去った事件である。 裁判所は、被告人が「悪質な方法」で娘を略取したとし、刑法第226条第1項の「国外移送略取罪」に該当するとした。

平成25年(許)5 (2013 (Kyo) No. 5) 最高裁 (Supreme Court of Japan) (2013)


The plaintiff-husband, who transitioned from female to male, and the plaintiff-wife requested the local public agency to amend their family registry to state the plaintiff-husband as the father of their child. The child was born by artificial insemination and had no blood relationship with the plaintiff-husband. The Supreme Court determined that, since the child was conceived by the plaintiff-wife during marriage, he is presumed to be a child of the plaintiff-husband under the Civil Code, and ordered the family registry to be amended.


平成24年(受)2231 (2012 (Ju) No. 2231) 最高裁 (Supreme Court of Japan) (2014)

Employment discrimination, Gender discrimination

The plaintiff was a physiotherapist in a managerial position at her employer. She requested and was granted maternity leave but was not allowed to return to her position at the end of the maternity leave. She filed a lawsuit against her employer, asserting that there was a violation of the Equal Employment Opportunity Law. The Supreme Court found in favor of the plaintiff because the Equal Employment Opportunity Law forbids disadvantaging employees based on the employee’s pregnancy, childbirth, request for maternity leave, or request for transfer to lighter work.


平成10年(オ)576 (1998 (O) No. 576) 最高裁 (Supreme Court of Japan) (2001)

Gender discrimination, Gender-based violence in general

The plaintiff had breast cancer and sued her operating surgeon who conducted a mastectomy arguing that he had a duty to inform her in advance that there are other treatments that do not require complete breast removal. The Supreme Court determined that the surgeon had a legal obligation to give her an opportunity to make an informed decision about her treatment, in this case by providing the name and address of medical institutions that conduct breast cancer operations that do not remove the entire breast.


平成16年(あ)2571 (2004 (A) No. 2571) 最高裁 (Supreme Court of Japan) (2005)

Domestic and intimate partner violence, Sexual harassment, Stalking

The defendant was indicted under the Stalker Regulation Law on a charge of stalking his former girlfriend. The defendant demanded many times by email and phone that she repay costs he incurred while they were dating. The defendant sent a letter to her threatening to distribute nude photos of her if she did not unblock him on her cell phone. The Supreme Court determined that, even though he sent the letter only once, his conduct amounted to “stalking” under the Stalker Regulation Law since his conduct was as a whole persistent and repetitive.


平成19(あ)1223 (2007 (A) No. 1223) 最高裁 (Supreme Court of Japan) (2008)

Sexual violence and rape

The defendant broke into the house of the victim and, after indecently touching her, tried to escape. The victim was accidentally injured during the escape. The defendant was charged with the crime of Forcible Indecency Causing Injury. The Supreme Court concluded that, even though the injury was not directly caused by assault or intimidation, the defendant could be convicted of Forcible Indecency Causing Injury because the assault was committed closely before or after the indecent act.


平成28年(あ)1731 (2016 (A). No. 1731) 最高裁 (Supreme Court of Japan) (2014)

Sexual violence and rape, Statutory rape or defilement

The defendant committed acts of obscenity upon a young girl. He alleged that it was only for a monetary purpose—to record the act and give the recording to his acquaintance in return for receiving a loan —and that he had no sexual intent. The defendant appealed the High Court’s ruling that sexual intent is not required to establish a prima facie case of indecent assault, which is proscribed by Article 176 of the Japanese Penal Code. He argued that the High Court’s finding was inconsistent with judicial precedent holding that sexual intent is an element of the crime. The Supreme Court, upon noting that the scope of sexual crimes cannot be properly determined without taking into account the views of contemporary society, found that, in the present day, the focus should be on the existence, details, and extent of sexual damage caused to a victim rather than an assailant’s intent. Thus, the Supreme Court, upheld the High Court’s finding and overturned the 47-year-old jurisprudence. The Court found that, while it could not deny that there may be a situation in which the sexual intent of a perpetrator becomes an important factor in finding the crime, it was not reasonable to uniformly require the existence of such a factor for the crime of indecent assault.


平成28年(許)45 (2016 (Kyo) No. 45) 最高裁 (Supreme Court of Japan) (2017)

Gender-based violence in general, Statutory rape or defilement, Trafficking in persons

The appellant in this case had been arrested and punished with a fine for allegedly paying for child prostitution in violation of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children (before its revision by Act No. 79 of 2014). The news media reported his arrest for the alleged charge, and all or part of the coverage was made available at several websites that were searchable on the appellee search engine. This case concerned the appellant’s request—based on his personal rights and moral interests—for an order of provisional disposition, requiring the search engine to make websites that refer to the appellant’s criminal record unsearchable. The High Court dismissed the request. The Supreme Court, on one hand, recalled its finding from precedents that the protection of information related to an individual’s privacy is subject to legal protection. On the other hand, it noted that search engines’ provision of search results (1) may constitute acts of expression and (2) has become an important infrastructure for distribution of information through the internet. The Supreme Court then found that the evaluation of whether providing particular search results amounts to an illegal action must take into account both the benefits of making the information at question unsearchable, and reasons and circumstances pertaining to providing such search results; the court can require that the search engine remove such search results only if the former exceeds the latter. In this case, the Supreme Court found that, while the criminal record at issue pertained to the privacy of the appellant and which he did not wish to be made largely available to the public, such information also concerned the public interest in light of the nature of crimes relating to child porn and child prostitution. In addition, the Supreme Court took into account that the information dissemination was limited to a certain degree considering that such search results did not show up unless a search engine user used the appellant’s name and his residing prefecture together as search keywords. Thus, the Supreme Court found that the benefit of making the information at issue unsearchable did not exceed the need of having the websites at issue on the search engine and sustained the lower court’s ruling.


平成28年(受)2076 (2016 (Ju) No. 2076) 最高裁 (Supreme Court of Japan) (2018)

Employment discrimination, Sexual harassment, Stalking

The appellee, a former employee of the appellant’s subsidiary, suffered sexual harassment and stalking from an employee of the appellant’s other subsidiary who shared the same work site with the appellee. The appellant had developed a corporate-group-wide compliance system, which included a consulting desk at which an employee of the appellant or its subsidiaries could raise and discuss any compliance-related matters. The appellee brought the harassment issue to her supervisors at her immediate employer (i.e. the appellant’s subsidiary) twice, but sufficient solutions were not provided, following which she left the company without bringing the issues to the consulting desk. The stalking continued even after her resignation, so her former colleague who still worked at the appellant's subsidiary brought the issue before the appellant through the consulting desk, but it did not provide sufficient solutions either. The question brought before the Supreme Court was whether the appellant (i.e. a parent company of her former immediate employer) bore the duties based on the principle of good faith to provide certain protective measures to the appellant because it had developed the corporate-group-wide compliance system. The Supreme Court found that the appellant was not imposed with such duties in light of particular facts in the case since the appellant did not bring the harassment issue to the consulting desk during her employment. However, in dicta, the Court stated that a parent company, depending on particular facts of the case, can be responsible for providing sufficient solutions to an employee of its subsidiary who is a victim of sexual harassment––failure of which would result in liability for damage based on the principle of good faith––if the parent company provides a system through which the employee could, and actually did, bring an issue of sexual harassment to the parent company’s attention.


平成19年(行ツ)164 (2007 (Gyo-Tsu) No. 164) 最高裁 (Supreme Court of Japan) (2008)

Gender discrimination

The issue before the Supreme Court was whether a part of a provision in the Japanese Nationality Act conformed with Article 14.1 of the Japanese Constitution, which prohibits discrimination based on race, belief, sex, social status, or lineage. The provision at issue did not grant Japanese nationality to a child born out of wedlock to a non-Japanese mother and a Japanese father––even if the father formally declares and recognizes the father-child relationship––unless the child obtains legal recognition as a child of the man and the woman through their marriage. The Supreme Court first noted that the Japanese Nationality Act does not grant Japanese nationality to a child in the aforementioned situation although it recognizes a parent-child relationship and grants Japanese nationality to a child born out of wedlock if (1) the child’s mother was Japanese or (2) the child’s Japanese father filed for the recognition of the father-child relationship before the child’s birth. The Court found that, while creating this distinction was reasonable at the time of the legislation, such a distinction amounted to unjustifiable discrimination in present day Japan. Thus, the Supreme Court found that the part of the provision at issue was unconstitutional and invalid. In its reasoning, the majority opinion stated, inter alia, “under the Japanese Nationality Act that adopts the principle of jus sanguinis, maintaining a distinction in terms of eligibility to have Japanese nationality based on whether the Japanese parent is the mother or the father of the child at issue does not accord with the basic principle of equality of the sexes.”

本件の争点は、当時の日本の国籍法の一部の合憲性である。当時の国籍法は日本国民である父の非嫡出子について、父母の婚姻により嫡出子たる身分を取得した者に限り日本国籍の取得を認めている。同じく日本国民である父から認知された子でありながら父母が法律上の婚姻をしていない非嫡出子は、その余の同項所定の要件を満たしても日本国籍を取 得することができないという区別が生じていた。最高裁は、このような区別を設けることは、立法当時は合理的であったが、現在の日本では合理的理由のない差別であると判断し、問題となった規定の一部を違憲・無効とした。その理由として、「日本国民である母の非嫡出子が出生により日本国籍を取得するにもかかわらず,日本国民である父から出生後に認知されたにとどまる非嫡出子が届出による日本国籍の取得すら認められないことには,両性の平等という観点からみてその基本的立場に沿わない」と述べた。

平成24年(ク)984 (2012 (Ku) No. 984) 最高裁 (Supreme Court of Japan) (2013)

Property and inheritance rights

In this appeal, a child born to unmarried parents appealed the High Court’s finding that a relevant part of the proviso to Article 900.4 of the Japanese Civil Code was not inconsistent with Article 14.1 of the Constitution of Japan, prohibiting discrimination based on race, belief, sex, social status, or lineage. The proviso set forth that the statutory share in inheritance of a child born out of wedlock is half of that of a child in wedlock. The Supreme Court reversed the High Court’s ruling and found that the proviso was inconsistent with Article 14.1 of the Constitution. In making this finding, the Supreme Court took into account the changes in the following, which have been observed since 1947––the year in which the Japanese Civil Code was revised after World War II: Japanese society, forms of family, legislative acts in foreign countries, and relevant Japanese legal frameworks. The Supreme Court noted that, even though the system of civil marriage is strongly respected in Japanese society, society has come to accept the idea that a child should not suffer disadvantages based on a factor that she/he did not cause or could not change––whether to have been born in or out of wedlock––and that a child’s rights need to be protected and she/he must be given respect as an individual.


平成16年(受)1748 (2004 (Ju) No. 1748) 最高裁 (Supreme Court of Japan) (2006)

Abortion and reproductive health rights

The Supreme Court was asked to rule whether a father-child relationship could be legally recognized in the case where a child’s mother became pregnant through in-vitro fertilization with the frozen sperm of a deceased husband who, while he was alive, had consented to the use of the sperm even after his death. The Supreme Court reversed the High Court’s ruling and declined to recognize the father-child relationship. The Supreme Court considered that the legal framework in Japan concerning parent-child relationships did not anticipate such a relationship between a father and his child who was conceived after his death in light of the fact that, even if the father-child relationship had been legally established, the deceased father would not be in a position to hold parental rights, he would not be able to support his child, and the child could not be an heir of the father for the purposes of inheritance. According to the Supreme Court, such issues need to be addressed by legislation upon analyzing several factors including bioethics, child welfare, and social acceptance. As the country lacks such legislation, the Supreme Court did not find that the father-parent relationship could be established.


平成19年(許)47 (2006 (Kyo) No. 47) 最高裁 (Supreme Court of Japan) (2007)

Abortion and reproductive health rights, International law

A Japanese married couple petitioned for a court order that a Japanese local government accept birth registers for twins born from a surrogate mother in Nevada with the ovum and sperm of the Japanese couple. The state of Nevada, pursuant to its state court, had issued birth certificates for the twins, which showed the Japanese couple as their parents. The Supreme Court reversed the High Court’s ruling that the birth registers need to be accepted. It stated that Article 118 of the Japanese Civil Proceedings Act prescribes that a final judgment made by a foreign court takes effect in Japan only if it satisfies all enumerated conditions, which include that “the foreign court’s ruling and its proceedings are not contrary to public policy in Japan.” The Supreme Court recalled that the Japanese Civil Code stands on the premise that a mother of a child is a woman who conceived and delivered the child and that a mother-child relationship is established through objective factors such as gestation and delivery. According to the Supreme Court, when a parent-child relationship can be legally established is a matter that forms the basis of the country’s legal order, and factors for finding such a relationship must be unequivocal. Thus, the Court found that a mother-child relationship between the twins and the Japanese wife could not be established, given that the Nevada court’s ruling, which recognized a parent-child relationship contrary to Japanese laws, ran against the public policy in Japan. In its statement, the Supreme Court urged the Japanese legislature to address the issues of parent-child relationships and assisted reproductive technology through legislation.


平成25年(受)233 (2013 (Ju) No. 233) 最高裁 (Supreme Court of Japan) (2014)

Divorce and dissolution of marriage, Gender discrimination

A mother, on behalf of her infant child, filed a lawsuit for a declaratory judgment for absence of parent-child relationship with the appellant––a man to whom the mother was married when the child was born. The request for the judgment was based on the fact that a DNA test result showed that, with 99.99 percent probability, the infant was a child of a different man, with whom the mother was having an affair. By the time of the trial, the wife and the child had left the appellant to live with the child’s biological father. Article 772 of the Japanese Civil Code, in general, presumes a man to be the father of a child if the man is married to the mother of the child at the time of conception. While Article 774 allows the husband to file a proceeding to rebut such a presumption, the wife or the child does not have standing to initiate such a proceeding. The Supreme Court, stressing the importance of maintaining legal stability pertaining to familial status, found that the facts that (i) there was scientific evidence that clearly denied a biological father-child relationship and that (ii) the child was currently raised––without any problem––by the biological father does not negate the presumption of the father-child relationship under Article 772 of Japanese Civil Code, as the importance of maintaining the legal stability pertaining to familial status would not be undermined by such factors. Therefore, the Supreme Court found that there was no legal ground to deliver the requested declaratory judgment.


平成29年(受)2015 (2017 (Ju) No. 2015) 最高裁 (Supreme Court of Japan) (2018)

Divorce and dissolution of marriage, International law

This case concerns the custody of a Japanese couple’s son who was born and raised in the United States until the mother, without the father’s consent, took him to Japan when he was 11 years old. Pursuant to the Japanese implementation of The Hague Convention on the Civil Aspects of International Child Abduction, the father, who was still based in the U.S., petitioned for the return of the son to the U.S. A family court in Tokyo granted the petition. However, the attempt to enforce the order of the court failed as the mother strongly resisted when a court execution officer approached her––the son also voiced his desire to stay in Japan at the time. Subsequently, the father requested habeas corpus relief seeking release of the child. The High Court dismissed the request. In this appeal, the Supreme Court of Japan reversed the High Court’s ruling and remanded the case. In its reasoning, the Supreme Court first recalled its old ruling that care for a child is tantamount to “restraint” within the meaning of the Habeas Corpus Act and the Habeas Corpus Rules in special circumstances where it cannot be deemed that the child is staying with the care provider based on the child’s free will, even if the child is capable of making her/his own decisions. The Supreme Court found such a special circumstance––undue emotional influence from his mother––existed with respect to the son in light of the fact that he was not capable of making decisions regarding his life when he was taken to Japan, he appeared to have had less than sufficient opportunities to communicate with his father, and he had been largely dependent on his mother. Furthermore, the Supreme Court found that the restraint at issue was unequivocally unlawful, taking into account that the mother had refused to follow the family court’s order to return the child to the U.S., and that there was no special circumstance in which removing the child would be significantly unjust. This Supreme Court’s unanimous decision may be an indication that the Court will put significant weight on compliance with The Hague Convention on the Civil Aspects of International Child Abduction.


平成25年(オ)1079 (2013 (O) No. 1079) 最高裁 (Supreme Court of Japan) (2015)

Divorce and dissolution of marriage, Gender discrimination

The plaintiff, who had divorced her former husband and remarried seven months later, sued the State claiming that she had suffered mental distress due to a provision in the Civil Code which barred women from remarrying until six months after the dissolution or rescission of her previous marriage. Both the District Court and the High Court dismissed the plaintiff’s argument, saying that the restriction was not necessarily unreasonable because it was meant to avert confusion over the paternity of any children born immediately after a divorce. The Supreme Court affirmed in part, holding that the provision violated the Constitution only to the extent that the restriction exceeded 100 days, because 1) the Civil Code already provided that a child born more than 200 days after the formation of a marriage or less than 300 days after the dissolution/rescission of a marriage would be presumed to have been conceived within the marriage, and 2) advances in medical technology and societal changes made it difficult to justify a restriction lasting beyond 100 days. However, the Supreme Court also affirmed the District Court and High Court in finding that the State was not liable in this case for failing to abolish the regulation, as this did not constitute an exceptional case that might incur liability under the State Redress Act. Shortly after this judgment, the Civil Code was amended to decrease the six-month waiting period to 100 days.


平成22年(あ)2011 (2010 (A) No. 2011) 最高裁 (Supreme Court of Japan) (2012)

Gender-based violence in general

The defendant was accused of taking and imprisoning four young women in either the guestroom of a hotel or in the defendant’s home. The victims suffered from post-traumatic stress disorder (“PTSD”) as a result of the imprisonment. One of the key issues in the case was whether the defendant’s act constituted the crime of Confinement Causing Injury, or only the crime of Confinement. The defendant argued that a psychiatric condition, such as PTSD, should not be regarded as an “injury” under the Criminal Code. The District Court and the High Court dismissed the defendant’s argument, and the Supreme Court affirmed, holding that if the defendant illegally imprisoned the victim and the victim developed continuous and characteristic PTSD symptoms as a result of the imprisonment, the victim’s PTSD could constitute an “injury” under the Criminal Code. Therefore, the defendant’s act constituted Confinement Causing Injury. This was the first Supreme Court precedent which found that a purely psychiatric condition which was not accompanied by a physical manifestation could fall within the meaning of “injury.”