In case you missed it, rivers of ink have been spilt over Japan’s supposed aversion to litigation, often in juxtaposition to a United States portrayed as the ninth circle of litigiousness hell. Theories abound as to whether Japan’s fabled litiga-phobia is due to cultural, structural or other factors, but the focus is typically on how and why people use the courts to resolve disputes. Or don’t.
All civilized societies have mechanisms for resolving disputes, but preventing them from arising in the first place is even more important. And no, this paragraph is not going to transition into some blather about Japan being a wa-based culture of harmony and consensus-based decision-making; it’s going to transition into the dull but important subject of Official Documents, and where they come from.
People associate courts with resolving disputes, and that is of course one of their principal functions. What people from common-law jurisdictions like the U.S. may take for granted, however, is the possibly abnormal role their courts play in issuing Official Documents, even in situations where there is no real dispute.
Official Documents — proof of ownership, birth, identity, marital status and so forth — are needed to live in any modern society. Ideally they are issued by a government institution, as this makes their contents almost immune from challenge — dispute — and thus reliable.
It may seem normal to divorced Americans that an Official Document they will likely need when submitting an application for their child to attend school or receive a passport is a custody decree. Arguably it is silly and inefficient: A custody decree contains all sorts of private information you wouldn’t dream of mentioning in conversations with people at the school or passport office, and most of it is irrelevant to them anyway. The school just needs to confirm who has legal authority to act on the child’s behalf, and probably doesn’t care who the child spends the summer with.
Japan is different, in part because its entire system of law and government is more modern than the United States, where the common law has roots going back to Ye Olde England and an age when almost by default, courts were one of the limited number of institutions capable of issuing Official Documents. This difference may explain why even today, Americans end up going to court in some situations where Japanese people do not. On the Japanese side, the reason may not be wa, but the koseki system.
A family’s story, in one document
The koseki is Japan’s family registration system. All legally significant transitions in a person’s life — births, deaths, marriages, divorces, adoptions, even changes of gender — are supposed to be registered in a koseki; in fact, registration is what gives them legal effect. An extract of a person’s koseki serves as the Official Document that confirms to the Rest of the World basic details about their identity and status.
Need to prove when you were born? Koseki extract. Need to show you have parental authority to apply for a child’s passport? Koseki extract. Want to commit bigamy? Good luck; the authorities will refuse to register a second marriage if your registry shows you are still encumbered with a first.
Compared to “event-based” Official Documents (birth certificates, divorce decrees and so forth) that prevail in places like America, the koseki is more accurate. An American can use a marriage certificate to show he got married on a particular date in the past but would struggle to prove he is still married today. A koseki extract, on the other hand, can do just that.
The koseki system is quite rigid in requiring that legally recognized family ties be registered unambiguously in a binary on/off fashion. Beyond that it accords a high degree of flexibility: Japan is a very easy place to get an amicable divorce — just file the divorce paperwork with the registry office and you are done! If you have kids, there is a place on the form where you allocate custody. In Japan, even many adoptive relationships can be formed and dissolved with the same ease. No court is involved, so there are no issues of jurisdiction or residence period as in countries like the U.S.
The system can thus seem schizophrenic when viewed through the lens of Western values. It is still impossible for couples to register a marriage without one legally assuming the other’s surname, an antediluvian restriction that was nonetheless found constitutional by the Supreme Court last year. On the other hand, changing one’s legal gender through the koseki has been possible since 2004 — positively progressive compared to those countries still idiotically fussing over how someone looks when using a public bathroom.
What can be confusing about the koseki is that it is an integral part of Japanese family law that doesn’t actually care about families beyond ensuring that the legally significant aspects of them are identifiable to the Rest of the World. Thus, a koseki extract today will show a marriage, but not whether the spouses are living together. The system also doesn’t care (i.e., show) if the registered father is not the biological father. It doesn’t care whom the kids live with after a divorce or if a divorced parent is paying maintenance or how often (or if) he sees his children.
There are no koseki data fields in which to record such things in any case, because they are irrelevant to the Rest of the World. The closest Western analogy may be a land registry, which shows the legal dimensions of a house — who owns it, the metes and bounds of the land, and whether there are liens or covenant on the title — but little that people actually care about in a house: whether the kitchen is nice, if it has a view and so forth.
Unlike a land registry, however, the modern koseki system doesn’t even care much about geography. All koseki are associated with a location in Japan — an ancestral home, perhaps — but where people actually live and pay taxes is tracked through a separate residency registry system (one in which foreign residents are now also registered). Koseki registrations, by contrast, can be freely transferred to any place in Japan, even Disneyland or baseball’s famous Koshien stadium. Those registered in a koseki are also largely free from geography: Japanese in other countries can enter into or dissolve marriages or some types of adoptive relationships for Japanese law purposes just by filing the koseki paperwork with their local consulate.
The koseki as liberator
The koseki system also means freedom from courts. This is not only because uncontested divorces and many adoptive relationships can be handled without setting foot in a courtroom, but also because it creates an unassailable record of a person’s legal relatives, making it possible to identify all possible heirs for inheritance purposes. Wills can be executed, bank accounts liquidated, even title to real estate changed if koseki records can be produced demonstrating all possible heirs are accounted for, and providing those heirs agree to the disposition.
This can be a lot of work. In theory, you need to look at all the records of the deceased going back to puberty, and then look for past marriages, extramarital children, adoptions or other developments that might lead to other possible heirs. If the only heirs are siblings, then you should check their parents’ koseki for possible half-brothers or sisters (who would have inheritance rights).
If the deceased lived a long time, you have to go back through multiple iterations of the current system, which was adopted in 1898 but then modified heavily in 1915 and then again in 1948. Venturing into prewar koseki records also means appreciating the different laws about family and inheritance that applied at the time.
Technology has made the koseki easier to use, though as of April 2015, 1.5 percent of Japanese municipalities had still not computerized their koseki systems! But go back far enough and the records are paper, with changes having been made by hand (batsu-ichi, Japanese slang for being divorced, is a reference to the manual crossing out of a spouse’s name on a koseki).
You might need professional help identifying all heirs, but you may not have to go to court, unless a will’s validity is disputed or heirs are unreachable or squabble over the spoils. In the U.S., finding heirs can be a challenge, and even uncontested estates may need to go to probate court before a bank will release funds from an account. More than one Japanese lawyer has asked me how inheritance can possibly work in places like America that lack a koseki system.
And what of the courts? They effectively administer a separate but closely linked system of family law, the Civil Code. Their role mostly plays out in the context of disputes between individuals, including in relationships that do not appear in the koseki, such as partners in de facto marriages or tokubetsu enko-sha — a person claiming from an estate not because of koseki ties but because, for example, they acted as caregiver to the deceased in his final years.
Nonetheless, some disputes heard by family court judges may ultimately affect the koseki (and thus, the Rest of the World) — the litigated divorce, for example. However, parties to such cases will first be encouraged through mediation to agree to a consensual result (which they are free to do anyway). Only a small percentage of Japanese divorces are achieved through litigation, and this route to freedom can take many years.
Even if a judge granting a divorce writes a long decree explaining the facts and the terms, just those parts of it relevant to the Rest of the World — the divorce and allocations of parental authority — would be reflected in the koseki. This is important to appreciate; Western lawyers and judges dealing with cross-border family cases involving Japan are understandably interested in whether a foreign judgment will be recognized here. Yet as far as Official Documents go, even domestic court judgments are basically irrelevant, because there are no circumstances in Japan where you would be expected to produce one. In fact, “recognition of foreign judgments” in Japan may in the first instance be a matter of getting a foreign divorce and custody allocation reflected in the Japanese party’s koseki, a matter for local governments and the Justice Ministry rather than courts.
The big hairy caveat
Overall, the koseki has a number of merits: It functions as a system of gathering demographic information and providing official proof of identity and status. It also offers people a high degree of autonomy within the parameters of the legal “family” relationships that can be registered. Finally, it may obviate the need for a lawyer in various circumstances.
However, the koseki system may suffer from one very basic limitation, although some might call it a feature: It is only for Japanese people.
This is the first of a two-part series on the koseki system. Law of the Land will return to its usual spot on the second Monday Community Page of the month on July 11. Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone. Comments and ideas: firstname.lastname@example.org