【テスト】Q&A

Divorce

Please give me an overview of divorce procedures under Japanese law.

There are four types of divorce in Japan:

1. (1)
   Divorce by agreement (kyogi rikon)
2. (2)
   Divorce by mediation (chotei rikon)
3. (3)
   Divorce by family court adjudication (shinpan rikon)
4. (4)
   Divorce by family court judgement (saiban rikon)

The most common type of divorce in Japan is (1) – a divorce based on a mutual agreement between the spouses.

The other types of divorce (i.e., (2) through (4)) involve a court. In Japan, there is a rule which requires parties to go through mediation procedures before filing a lawsuit for divorce with a court (a process we can refer to as “mediation first principle”). Therefore, a party who seeks divorce must first file for a divorce mediation. In the divorce mediation, the parties will discuss the divorce conditions through mediation led by independent third-party mediators. If the parties reach an agreement, divorce is established (divorce type (2)).

If the parties are unable to reach an agreement by mediation, either party may then file a lawsuit with a family court, and the court will decide whether there are statutory grounds for divorce as well as other conditions of divorce (divorce type (4)).

In rare cases, after mediation procedures in which the parties fail to reach an agreement, the family court may make a ruling to grant divorce (divorce type (3)). However, such a ruling becomes void if either party objects to the ruling. In this case, a party seeking divorce may file a lawsuit with a family court (divorce type (4)).

What are the grounds for divorce under Japanese law?

The Civil Code stipulates that, even if the parties cannot agree on divorce, divorce may be granted under the following circumstances (Article 770):

The legal inheritance shares (legal portion) of a spouse and any other heirs are established as follows:

1. (1)
   a spouse has committed an act of adultery/infidelity;
2. (2)
   a spouse is abandoned by the other in bad faith;
3. (3)
   if it is not clear whether a spouse is dead or alive for no less than three years;
4. (4)
   a spouse is suffering from severe mental illness and there is no prospect of recovery; or
5. (5)
   there is any other grave/serious cause making it difficult to continue the marriage.

Even in cases not falling under (1) through (4) above, divorce may be granted if, for example, the marriage is found to have fallen apart due to domestic violence and the court finds a “grave/serious cause making it difficult to continue the marriage”.

Does living separately for a number of years provide grounds for divorce?

Japanese law does not clearly stipulate the number of years of separation which provide grounds for divorce.

However, if the period of separation is prolonged, there is a possibility that the case would fall under the statutory grounds for divorce of a “grave/serious cause making it difficult to continue the marriage”.

Generally speaking, when a period of separation lasts for 3 to 5 years, grounds for divorce can be established.

Under Japanese law, what happens to custody of a child(ren) if a couple is divorced?

While many countries around the world have adopted a joint custody system, Japanese law has adopted a sole custody system.
This means that, upon divorce, a couple must decide which parent will have custody of their child(ren).

If there is a dispute over custody, how does the court determine which parent is granted custody?

In deciding who will have custody of a child(ren), the family court will consider the following factors in light of the best interests of the child(ren):

• Continuity of custody

  The court will consider the child(ren)’s current nurturing environment, and if there are no problems with that environment, the court will give priority to the continuation of custody for the sake of stability.

• Will of the child(ren)

  If the child(ren) has reached a certain age, the child(ren)’s opinions will be respected.

• Priority is given to the mother

  There is a tendency for mothers to be given priority when it comes to the granting of custody, especially when the child(ren) is still young.

• Attitude toward visitation

  If a parent is against the other parent having visitation opportunities with their child(ren) without reasonable justification, that parent’s attitude may negatively impact his or her chances of being granted custody.

In addition to those mentioned above, various factors (e.g., financial situation, health condition, and whether a parent has someone to support him or her with the custody) will be considered in the making of a decision.

How is the amount of child support determined?

Family courts have published a child support calculation table, and the amount of child support is determined based on the income of both parties.

How is property divided upon divorce under Japanese law?

In Japan, the principle is that property accumulated by a couple during their marriage is their common/shared property, and each spouse shall be entitled to one-half of that property.

On the other hand, property that was owned by one of the spouses prior to the marriage or property acquired during the marriage but without the other spouse’s cooperation (e.g., through inheritance) is considered personal property and is not subject to division of property.

We were not formally married but were in a common-law marriage. Will there be a division of property upon dissolution of our relationship?

There are court cases which determined that property should be divided upon dissolution of a common-law marriage as in the case of divorce. Therefore, property accumulated through cooperation of both parties during their relationship will likely be subject to division of property.

Other than division of property and child support, will there be any payment obligations upon divorce?

Under Japanese law, there is no obligation to support the other spouse after divorce. Therefore, the only support to be paid is child support if there is any child(ren).

On the other hand, in cases where adultery/infidelity or severe domestic violence led to divorce, the responsible spouse may be ordered to pay alimony to the other spouse. The amount of alimony depends on the case, but in many instances, alimony between ¥500,000 to ¥3,000,000 is awarded.

Inheritance

Please give me an overview of the inheritance system in Japan.

First of all, if the decedent (i.e., the deceased person) has created a will, the division of inheritance will proceed in accordance with the will.

If there is no will, the heirs are to discuss the division of the inheritance. If an agreement is reached between all of the heirs, a written agreement on the division of the inheritance is made. If no agreement is reached, any of the heirs may apply to a family court for conciliation on the division of the inheritance. If no agreement is reached even through conciliation, the case will be referred to adjudication proceedings, and the family court will make a decision on how to divide the property.

In Japan, the marital property system is based on the separate property system. Under this system, when a spouse has died, property in the name of the decedent will be divided among all heirs without an adjustment between the decedent and the surviving spouse being made prior to the division of property.

What are the statutory inheritance shares?

The legal heirs are the spouse and blood relatives, and if the decedent had a spouse, that spouse will always be an heir. Blood relatives are granted a position of heir in the following order of precedence: (1) children (including an heir per stirpes), (2) lineal ascendants (e.g., parents), and (3) siblings (including an heir per stirpes).

The legal inheritance shares (legal portion) of a spouse and any other heirs are established as follows:

Heirs	Statutory share of the spouse	Total statutory shares of other heirs
Spouse and children	1/2	1/2
Spouse and decedent’s parents	2/3	1/3
Spouse and decedent’s siblings	3/4	1/4

What forms of wills are valid in Japan?

The following three forms are recognized as ordinary forms of a will.

1. (1)Holographic will (Handwritten will)

   This is a will in which the testator (i.e., the person who makes a will) prepares the entire text in his/her own handwriting. This form is simple, but there is a risk of invalidity due to failure to meet certain requirements.

2. (2)Notary deed will

   This is a will prepared at a notary public office with the involvement of a notary public.

3. (3)Secret will

   This is a type of will the existence of which is certified by a notary public, but the contents of which are kept secret from anyone including the notary public. As with (1), this type of will has a risk of invalidity due to failure to meet certain requirements.

Is it possible to instruct in my will that one heir should inherit all of the inheritance?

In Japan, the “legally reserved portion” is reserved for certain heirs. If all of the property is inherited by a single heir, a claim for abatement may be made by another heir(s) in order to preserve his/her legally reserved portion.

The legally reserved portion is granted to a spouse and children (including an heir per stirpes) and to lineal ascendants if the decedent had no child.

The legally reserved portion is equivalent to one-half (1/2) of the legal inheritance share.

My father, who was a non-Japanese living in Japan, died in Japan and has left a handwritten will. Can I apply for probate of the will to a Japanese family court?

If the testator’s last place of residence was in Japan, the Japanese court system has jurisdiction for probate of the will.

As for the governing law for probate in such a case, the law of the forum (lex fori) is usually applied in practice.

There exist cases in which probate of a will of a non-Japanese resident in Japan has been accepted by a Japanese court. Likewise in your case, probate may be conducted in accordance with Japanese law in a Japanese family court.

Can a surviving spouse continue to live in a residence that is in the decedent’s name after his/her death?

In an amendment to the inheritance rules in 2019, the right of residence of the surviving spouse (i.e., the right to continue to live in the residence free of charge after the death of his/her spouse who was the owner of the residence) is stipulated in the civil law.

Under the new rules, the surviving spouse’s right of residence will be financially valued and the division of the inheritance will be made taking into account such value. The valuation of a right of residence is lower than the valuation of ownership of the residence; therefore, the amount of liquid assets to be inherited by the spouse will increase compared to a case where the spouse inherits ownership of the residence.

Even if the surviving spouse does not obtain the right of residence, he/she is entitled to live in the residence for at least 6 months (“short-term right of residence”) until the division of inheritance is finalized.

I am a common-law wife/husband and not officially married. Do I have the right to inherit my partner’s property?

With respect to common-law marriage, unlike the right to share property upon dissolution of a common-law marriage, the right of inheritance is not acknowledged in practice.

Therefore, the ways of leaving an inheritance to a common-law partner would be to make a gift during one’s life or to make a bequest in a will. Keep in mind that other heirs may have legally reserved portions.

The decedent died leaving a large amount of debts. Are the heirs obliged to inherit the debts?

Under Japanese law, heirs inherit both positive and negative assets, which means that the heirs must inherit the debts as well.

However, there is a system that allows renunciation of an inheritance. If the amount of debts is greater than the amount of assets, an heir may make a statement to the family court that he/she renounces the inheritance. It should be noted, however, that a renunciation of an inheritance must be stated to the family court within 3 months from the time he/she becomes aware of the death of the decedent and of the fact that he/she has become an heir.

Labor Issues

I work for a foreign company in Japan. In this case, which country’s laws would apply to labor issues?

The General Act on Application of Laws provides that, in principle, the laws of the place chosen by the parties apply. Therefore, if any place is specified in your labor contract, the laws of that country will apply.

If there is no explicit agreement regarding the governing law, the “laws of the place with which the contract is most closely related” apply, which means the laws of the country where the employee is working will be the governing law.

Furthermore, it has been construed that even if a foreign law is chosen by the parties, mandatory Japanese provisions for labor protection apply to employees working in Japan. Therefore, Japanese laws apply to matters related to employment termination, minimum wages, industrial accidents, etc.

I was fired by my company, but I do not think there was a good reason for it. Is there any way to dispute the dismissal?

In Japan, there are strict rules regarding dismissal. Therefore, generally speaking, companies cannot easily fire an employee.

It is important to firstly confirm the reasons behind your dismissal. If the reasons for dismissal have not been specified in writing, you may request a certificate stating the reasons for dismissal.

In a case involving a fixed-term labor contract, in principle, the employer cannot dismiss the employee during the fixed term unless there are “compelling reasons”. Therefore, the instances in which an employer may dismiss an employee are restricted.

Also, even in a case involving a labor contract without a fixed term, the law provides that a dismissal is invalid unless there are “objectively reasonable grounds” and the dismissal is “considered to be appropriate under generally accepted social conventions”. For example, a dismissal may be valid when an employee has committed a material violation of work orders or workplace rules, whereas an immediate dismissal for a minor mistake or minor incompetence may be considered invalid.

If the dismissal is invalid, the employee may request to be reinstated to the workplace and may also claim back wages and other benefits from the employer for the period during which the employee was unable to work due to the invalid dismissal.

What are the procedures of a dismissal?

The Labor Standards Law provides that an employer wishing to dismiss an employee is required to give at least 30 days advance notice or, if no advance notice is given, to make a payment in lieu of advance notice in an amount equivalent to the employee’s average wages for at least 30 days.

In a case of a disciplinary dismissal, an employer may immediately dismiss an employee without giving advance notice or making a payment in lieu of advance notice if the employer obtains prior approval for such immediate dismissal from the Labor Standards Inspection Office.

I frequently work overtime, but my company does not pay me overtime. How should I deal with this situation?

You can make a claim for overtime pay from the company. In calculating the overtime pay, it is important that you have evidence to prove the hours you worked. In addition to time cards and/or software for managing starting and finishing times, records of emails sent or records of logging in and out of the computer used for your work and other such work-related activity may also serve as evidence. It will be helpful to preserve these items as evidence.

I am employed under an annual salary system. Can I claim overtime pay?

Even if you work on an annual salary basis, your employer is required to pay overtime. Therefore, if you work in excess of the statutory working hours, you may make a claim for overtime pay unless you fall under an exception provided by the Labor Standards Law (e.g., if you are in a position of supervisor or manager).

I got injured in an accident on the job. What kind of compensation can I receive?

If you are injured in an accident on the job, it constitutes an occupational injury. In this case, the following two types of compensation are available:

1. (1) Industrial accident compensation insurance benefits

   If the accident is recognized as an industrial accident, you may receive benefits from the government such as coverage of medical expenses, compensation for absence from work, and injury compensation benefits in case of residual disability.

2. (2)Damages from the company

   The covered items and amount to be paid under (1) are fixed. If there are damages exceeding such items and amount, you may claim for damages from the company. The kinds of damages that can be claimed from the company include medical expenses, loss of salary during one’s absence from work, and compensation for mental suffering due to hospitalization/outpatient treatment as well as compensation for residual disability and lost wages (wages that would have been earned in the future if the industrial accident had not occurred).

I suffer from depression due to power harassment by my boss and have become unable to work. Can I receive compensation for an industrial accident?

If you suffer mental illness such as depression due to work-related stress, the issue would be whether the illness was genuinely caused by your work. There are certain hurdles that must be overcome to have the illness recognized as an industrial injury.

Specifically, it must be recognized that there was a “strong psychological burden due to work” during a certain period (approximately 6 months). The Ministry of Health, Labour and Welfare has published a chart for evaluating the psychological burden caused by work, and classifies burdens into “Strong”, “Medium”, and “Weak” categories with concrete examples.

Furthermore, it must be recognized that one’s onset of depression was not caused by non-work-related factors. The Ministry of Health, Labour and Welfare has also published a chart for evaluating the psychological burden caused by non-work-related matters, and classifies such burdens into categories labeled as “I”, “II”, and “III” with specific examples. For example, divorce, separation, and the onset of a serious illness are classified as category “III” burdens (i.e., the most stressful category), and in a case where such factors are present, more caution will be exercised in recognizing the case as an industrial accident.

Bankruptcy Procedure

Can a non-Japanese person file for bankruptcy in Japan?

Foreign nationals may file a petition for bankruptcy with a Japanese court to seek relief from their debts if they have a domicile or property in Japan.

In this case, property located in foreign countries will also be subject to liquidation, and foreign creditors will also be allowed to participate in the bankruptcy proceedings.

If a foreign national files for bankruptcy, will it have an adverse effect on his/her status of residence?

Even if a foreign national files for bankruptcy, this in itself does not directly affect his/her status of residence.

However, in making a decision on the status of residence, the immigration authorities may take into account whether the person in question has sufficient assets and skills to earn a living independently. In this sense, his/her financial condition may be relevant to his/her status of residence.

How can I file a petition for bankruptcy?

First of all, you need to prepare a written petition summarizing the circumstances under which you have become unable to pay your debtor(s) as well as materials related to your assets (e.g., bank passbooks/statements).

There are two types of bankruptcy proceedings: (1) bankruptcy proceedings with a trustee and (2) bankruptcy proceedings that are terminated upon commencement of the proceedings (“simultaneous termination”). When a petition for bankruptcy is filed with a court, the court decides whether to appoint a bankruptcy trustee and continue the proceedings or to terminate the proceedings simultaneously with the commencement of the proceedings. In principle, the court will appoint an attorney-at-law as a bankruptcy trustee, and the bankruptcy trustee will investigate the assets of the individual seeking bankruptcy, liquidate the assets if there are any, and distribute the proceeds to the creditors. On the other hand, if the individual filing for bankruptcy has no property worth more than ¥200,000, the court will decide not to appoint a trustee and will instead issue an order of termination of the proceedings simultaneously with an order of commencement of the proceedings.

1. (1)

   In bankruptcy proceedings with a trustee, you will be interviewed by the bankruptcy trustee after you have filed a petition. Then, a creditors meeting will be held at the court. If there are any assets, the assets will be liquidated and the proceeds will be distributed to the creditors.

2. (2)

   In cases of simultaneous termination, the individual filing for bankruptcy will be required to attend an interrogation for discharge to be held at the court with his/her representative.

After the proceedings described in (1) and (2) above, the court will issue an order of discharge and the bankrupt individual is released from his/her debts. Under (1), it usually takes 3 months to 1 year from the filing of the petition until the order of discharge is issued. Under (2), the order of discharge is usually issued a few months following submission of the petition.

Are there debts that remain after bankruptcy?

Foreign nationals may file a petition for bankruptcy with a Japanese court to seek relief from their debts if they have a domicile or property in Japan.

The following claims are designated as non-dischargeable claims under the Bankruptcy Act:

1. (1)
   Claims for taxes
2. (2)
   Claims for damages for a tort (which is an act or failure to act that causes an injury or harm to another person and amounts to a civil wrong for which a court can impose liability) that the bankrupt individual has committed in bad faith
3. (3)
   Claims for damages for a tort harming the life or body of another person that the bankrupt individual has committed intentionally or by gross negligence
4. (4)
   Claims based on family relationships (e.g., child support or marriage expenses)
5. (5)
   Claims of an employee and claims for return of an employee’s deposit which have arisen from an employment relationship (e.g., salaries)
6. (6)
   Claims that the bankrupt individual knowingly failed to include in the list of holders of dischargeable claims
7. (7)
   Claims for fines

My debts have been incurred partly due to my wasteful spending. Can I still receive a discharge?

The Bankruptcy Act provides that if the individual filing for bankruptcy has significantly reduced his/her assets or incurred an excessive amount of debts by wasteful spending or gambling, it constitutes grounds for ineligibility for discharge.

However, even if such circumstances exist, it does not necessarily mean that you cannot receive a discharge.

Even in cases where there are grounds for ineligibility for discharge, the court, in reality, often grants a discharge at its discretion, taking into consideration various circumstances such as the gravity of the situation and the attitude of the individual filing for bankruptcy. Therefore, even in such cases, we recommend that you consult an attorney.

What are the disadvantages of going bankrupt?

The major disadvantage is that it is registered on a so-called black list of personal credit information agencies. Once registered on this black list, it will generally be difficult to take out a new loan or get a credit card for approximately 5 to 10 years (depending on the financial institution).

Your current bank account may be temporarily frozen if you have received a loan from your bank, but otherwise you can continue to use it as before.

In addition, commencement of bankruptcy proceedings is a ground of disqualification for certain occupations (e.g., attorney, CPA, tax accountant, and security guard). However, if the restricted rights of a bankrupt individual are restored (including where an order of discharge has become final and binding), the restrictions on your qualifications cease to exist.

What are the costs involved in filing a petition for bankruptcy?

In addition to attorneys’ fees, you will have to pay a fee to the court for making a public notice in an official gazette (approximately ¥10,000 to ¥20,000 depending on whether it is a proceeding with a trustee or a simultaneous discontinuance). Also, in a proceeding with a trustee, you will be obligated to pay remuneration for the trustee (at least ¥200,000) and any other actual expenses (e.g., stamps and postage stamps).

Criminal Procedure

What procedures will be taken after a suspect is arrested?

After a suspect is arrested by the police, the case is referred to a public prosecutor within 48 hours of the arrest.

If the public prosecutor finds that further detention of the suspect and further investigation are necessary, the public prosecutor will make a request within 24 hours to the relevant court for further detention. The ultimate decision as to whether the suspect should be detained is made by the court. In many cases, suspects remain detained after their arrest.

On the other hand, in cases where the offence is minor or where there is no need for detention, it is possible that the public prosecutor will not make a request for detention. Also, the court could reject the request from the public prosecutor. In these cases, the suspect is released.

Once a decision to detain the suspect is made, the suspect will be detained for 10 days from the date of the request for detention. If further detention is necessary for the investigation, the detention can be extended for another 10-day period. The maximum detention period is 23 days from the time of arrest.

The public prosecutor will investigate the case during the detention period and decide whether to prosecute the suspect before the expiration of the detention period. If the suspect is prosecuted, his/her detention will continue after the prosecution.

I am currently under arrest and detained at a police station. How can I seek my release?

There are different ways to seek a release depending on the phase of your detention.

If it is after the arrest and before the relevant court makes a decision regarding detention, the strategy would be to prevent the detention by submitting a written opinion to the public prosecutor to the effect that such request should not be made or by submitting a written opinion to the court to the effect that such request should be rejected.

If the court has already made a decision that you should be detained, you may file an objection under the quasi-appeal (jun-kokoku appeal) system.

If you are already prosecuted, you may seek your release through the bail system. If bail is granted by the court, you will be released on condition that you deposit the bail bond. A request for bail is more likely to be approved than a quasi-appeal before prosecution, because in most cases, the investigation has been completed by this stage. The amount of bail bond differs depending on the case, but it is generally between ¥1.5 million and ¥3 million.

In any case, in making a decision whether to release the suspect/accused or to continue the detention, the court will consider various factors such as: the possibility of destruction of evidence, the threat of escape, and the severity of the case. When seeking a release, it is important to show that there is no possibility of destruction of evidence or escape by submitting a letter of undertaking from a family member or a written oath made by the suspect/accused.

If the accused is a non-Japanese, it is possible that bail will be granted upon condition that the defense counsel keeps the suspect’s/accused’s passport or upon other conditions in order to prevent the accused from fleeing Japan. When the suspect/accused is a foreigner without a status of residence, he/she will be principally detained at an immigration detention center upon release, and bail will not be granted.

How long does it take from the commencement of prosecution to the sentencing?

In ordinary and simple cases in which the defendant is not denying the charges, sentencing tends to occur approximately two months after the commencement of prosecution.

Typically, the first trial is held approximately 1.5 months after the commencement of prosecution to examine the evidence and to question the accused, and then the hearing is concluded. The court renders its judgement approximately 2 weeks after the conclusion of the hearing.

On the other hand, if the case is complicated or if the accused is denying the charges, it can take several months or even years before the judgement is rendered, because it takes a lot of time to conduct questioning of the witnesses and sort out relevant issues and evidence.

Please tell me about the composition of the court in criminal cases.

Ordinary criminal cases are handled by a professional judge(s).
On the other hand, a lay judge trial system has been introduced for certain serious crimes (e.g., murder, robbery causing death or injury, violation of the Stimulants Control Act (smuggling for profit), and vehicular homicide). Under this system, 6 lay jurors and 3 professional judges are in charge of the fact-finding and the sentencing.

I have a family member currently in detention, but he/she is prohibited from contacting anyone other than his/her defense counsel. Is there any way to get in touch with him/her?

In cases where there is an accomplice(s) or in cases of organized crimes, the court may prohibit access to the suspect in order to prevent the destruction of evidence. If the court does so, the suspect is not allowed to meet anyone other than the defense attorney and, in some circumstances, is prohibited from giving or receiving items.

However, even if such a prohibition has been imposed, you may file a petition with the court requesting that the prohibition of access be partially lifted. The prohibition of access is often lifted for a family member(s) not involved in the case. It should be noted that even if a suspect or his/her family members are non-Japanese, use of languages other than Japanese for communication (during visits or in correspondence) is basically not allowed.

I have been prosecuted and convicted. How will this affect my status of residence?

The effects on one’s status of residence differ depending on the type of crime and severity of the punishment.

1. (1)

   A sentence of life imprisonment and a sentence of imprisonment with or without labor exceeding one year (excluding a suspended sentence) constitute grounds for deportation. Note that certain offences (e.g., illegal immigration, overstaying a visa, and drug offences) are grounds for deportation even if the sentence is suspended.

2. (2)

   Even if your conviction does not constitute grounds for deportation, the conviction itself may be considered as a disadvantageous factor in procedures related to an extension of one’s period of stay or a change of one’s status of residence and may lead to rejection of your application.

I manage a company in Japan as a president (representative director), but I have been arrested. Can I remain in my current position?

You may be disqualified from being a company director under the Companies Act depending on the type of crime and severity of the penalty. In this case, you must resign from your current position.

If you are convicted of certain company-related crimes (e.g., a violation of the Companies Act, the Financial Instruments and Exchange Act, or the Bankruptcy Act), you cannot be a director for two years after the completion of the sentence or, if the sentence is suspended, until the end of the probationary period.

Also, if you are sentenced without suspension to imprisonment with or without work for any other crimes, you cannot hold the position of director until you complete your prison sentence.