Equality Under the Law (Article 14)

Supreme Court Grand Bench Decision of July 5, 1995, 49 Minshu 7-1789. With a ten to five majority, the Court reversed a lower court decision which held unconstitutional Civil Code Article 900(4), which provides that an illegitimate child's allocated portion of inheritance shall be one-half of the portion of the legitimate child. (Tokyo High Court Decision of November 30, 1994, 1512 Hanji 3). The Court stated that the purpose of the provision was to balance the need to respect legal marriage while protecting the needs of the illegitimate child. Allocating one-half of the legitimate child’s portion to the illegitimate children was a reasonable means of achieving this goal.

Supreme Court Third Petty Bench Decision of December 5, 1995, 1563 Hanji 81. The Court dismissed claims for damages stemming from the unconstitutionality of Civil Code Article 733. The claims asserted Article 733 violates Article 14 of the Constitution insofar as it requires a six-month waiting period between a woman's divorce and remarriage with no similar requirement imposed upon men. The Court dismissed the plaintiff's appeal based on interpretation of Article 1 of the State Redress Law, without any discussion of whether the provision amounted to an invasion of the right of equal treatment, stating that the contested provision was designed to prevent disputes regarding paternity. The provision simply did not comprise an "illegal legislative act" actionable under the State Redress Law.

Supreme Court First Petty Bench Decision of January 21, 1999, 1675 Hanji 48, 1002 Hanta 94. The Court dismissed the appeals of an unmarried couple and their child who sought to challenge the legality of a municipality's recording the child in the family register of the child's father simply as "child," rather than as "eldest daughter" or "eldest son" as was required for children of married parents under the registration guidelines then in effect. The plaintiffs asserted the difference in the nature of registration between children of married and unmarried children violated the guarantee of equal treatment under Article 14 of the Constitution, sought to revise the registration and sought damages stemming from the allegedly negligent action of the municipality. The lower court (Tokyo High Court Decision of March 22, 1995) had dismissed the plaintiffs' claims in light of a revision to the guidelines for registration which stipulated that acknowledged children of unmarried couples as well as children of married couples would be entered into the citizen's register as "child" and the subject registration was amended accordingly. Although the lower court had questioned the legality of the municipality's action in light of the discrimination likely to be suffered by the plaintiff child as a result of the difference in the nature of registration of children of married and unmarried parents, it dismissed the plaintiffs' damage claims reasoning that the municipality could not be said to be at fault in its interpretation of the then applicable guidelines for registration. While similarly dismissing the plaintiffs' appeals, the Court found that the method of registration of citizens is an administrative function without legal effect and therefore does not give rise to an individual right of action.

Tokyo High Court Decision of September 16, 1997 (Unpublished). The court affirmed a lower court ruling allowing a homosexual group access to publicly-maintained meeting  facility.  The homosexual group had sought to reserve the Tokyo District Fuchu City Youth House for two days and one night. The reservation was initially refused by the director of the facility, and ultimately, the use of the facility by the group was denied by the Tokyo Education Committee as inconsistent with the facility’s rule that men and women sleep in separate rooms. While acknowledging that the Tokyo Education Committee was entitled consider compliance with the rule regarding the separate sleeping arrangements in determining whether or not to permit the group's use of the facility, the court nonetheless found the committee’s failure to pursue less restrictive means of balancing its concerns with the group’s right to access to public facilities amounted to prejudicial treatment under Article 14(1) of the Constitution.

Tokyo District Court Decision of March 23, 1995, 1531 Hanji 53, 874 Hanta 298. The Court, through indirect application of Article 14 of the Constitution, ruled a provision which limited ownership of golf memberships to Japanese nationals comprised tortious conduct with respect to a Korean national living in Japan.

Tokyo High Court Decision of November 26, 1997, 960 Hanta 79.  The court affirmed a lower court determination (Tokyo District Court Decision of May 16, 1996) regarding the refusal of the Tokyo civil service municipal government to allow the plaintiff, a Korean permanent resident, to sit for a management selection examination.  The plaintiff had joined the Tokyo municipal government as a public assistance nurse in 1986, and 1994 applied for a management position, which in turn required she pass a civil service management selection examination.  However in 1994 as well as in 1995, the defendant municipal government refused to accept her registration for the examination on the basis that the Local Public Employees Law required that all candidates be Japanese citizens.  The plaintiff sought a declaration of her qualification to take the examination in 1994 and 1995 as well as damages for mental anguish stemming from the defendant’s refusal. Drawing a distinction between those public employees with direct management functions, those with indirect management functions for which Japanese citizenship was reasonably required, for which Japanese citizenship was less important with respect to the third category., as opposed to those with special technical or academic skills who assist those with governing functions, the court affirmed the lower court’s refusal to acknowledge the plaintiff’s qualification to sit for the examination, suggesting that the position she sought fell in the first or the second of these categories.

Shizuoka District Court Decision of October 12, 1999, (Unpublished). The Court awarded damages and attorneys’ fees in the amount of 1.5 million yen to the plaintiff, a Brazilian journalist with the Portuguese language broadcast company IPC Television Network Corporation, who alleged that the defendant owners of a Shizuoka jewelry shop had discriminated against her based on her national origin. The plaintiff had entered the defendants’ shop, and upon discovering that she was Brazilian, the defendant shop owner told her that foreigners were not welcome in the shop, thrusting a handwritten note scrawled with the words "foreigners not welcome" in front of her and ordered her out of the shop. The defendants ultimately called the authorities, indicating they suspected the plaintiff of criminal activity and of preparing to rob the shop. There being no specific provision in the Japanese Civil Code for the award of damages for discriminatory acts, the plaintiff alleged that the defendants’ actions comprised discrimination in violation of the International Convention for Elimination of All Forms of Racial Discrimination ("Convention"), to which Japan is a signatory, and that under Article 2(1)(d) of the Convention, which requires signatories to "prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization." and Article 6, which requires signatories to "assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals . . . against any acts of racial discrimination . . . as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination," an award of damages in a private action is appropriate. Alternatively, the plaintiff argued that even in the absence of the Convention, the defendants’ actions comprised compensible tortious interference with the plaintiff’s rights under Article 709 of the Civil Code. In finding for the plaintiff, the Court emphasized the supremacy of the Constitution, which provides in the preamble and elsewhere for international cooperation and the recognition of individual rights of all people including life liberty, and the pursuit of happiness without discrimination based on race creed sex social status or family origin. The guarantees of basic human rights contained in Constitution precluded the necessity of further legislation to implement the Convention and the Court concurred that the defendants’ actions, particularly the unreasonable suspicion of criminal activity based solely upon the plaintiff’s national origin, had violated the plaintiff’s rights and caused compensible nonpecuniary damages to the plaintiff’s person, liberty or reputation under Articles 709 and 710 of the Civil Code.