RECOGNITION AND ENFORCEMENT

                                  OF

               FOREIGN JUDGMENTS ON CHILD CUSTODY CASES

                                  IN

                                JAPAN

                                  by

                         Judge Sumiko Ikemoto

                             06 Jun 1997

                         Workshop Session 73

              "International Child Custody Jurisdiction:

                 Anatomy of a Hague Convention Case"

     1      Introduction

     001    In recent years, the Family Court in Japan has

     experienced an increase in cases on court hearings or

     Conciliation (Mediation) by foreigners or similar cases

     having to do with foreign laws that concern child custody

     designations or changes, designations of custodianship and

     negotiations concerning visitation rights/rights of access.

     FN01

     002    In other instances, there are Child Habeas Corpus

     cases filed in the District and High Courts, several cases

     filed for the enforcement of foreign judgments concerning

     child custodianship to the District Court, separate divorce

     cases filed in the District Court in Japan even after

     previous divorce judgments abroad (including cases

     concerning designation of guardian and custodianship of

     children included).

     003    This paper will examine a few examples of Japanese

     court solutions on two or three issues that need to be

     resolved in these situations.

     2.     Methods in Deciding Jurisdiction of International

     Disputes

     004    There is no written law directly referring to

     international jurisdiction, in Japan.  FN02

     005    In most cases it is based on logic. The basic

     principle here is, of course, based on a principle of civil

     procedure---Actor sequitur forum rei.  [WMH Note:

     "According as rei is intended as the genitive or res, a

     thing, or reus, a defendant, this phrase means: The

     plaintiff follows the forum of the property in suit, or the

     forum of the defendant's residence."  Black's Law

     Dictionary, 5th Edition] Furthermore, since these cases are

     special having to do with personal and family matters, there

     must be limits against mutual consent jurisdiction or

     general appearance in order to eliminate arbitrary forum

     shopping.  FN03

     006    Also, since final judgments involving Japanese

     citizens may result in a change in the family register, the

     jurisdiction of the case must be in Japan if a Japanese is a

     party to the case even though he/she does not reside in

     Japan.

     3. Jurisdiction of International Disputes Concerning Child

     Custody Dispositions.  FN04

     007    A.    The Family Court and the District Court have

     two methods in deciding the jurisdiction of international

     disputes.

     008    1)    When there is a need for a judgment concerning

     the custody of a child (designation of a guardian) within a

     divorce case, and if the divorce case has jurisdiction then

     in many cases jurisdiction of the custody is not judged, but

     rather a substantial judgment on custody is made.

     009    However, there are some cases from the standpoint of

     public policy to protect the child's interests, where

     jurisdiction of the custody is decided independent of the

     divorce jurisdiction and is given jurisdiction to the

     country where the child has habitual residence.  FN05

     010    2)    The Japanese Family Court will favor

     jurisdiction of the child custody hearing to be held in

     Japan only if the child resides in Japan, basing its

     judgment on the habitual residence standard.  FN06

     011    B.    In either case, the following points must be

     considered when deciding the jurisdiction of child custody

     cases.

     012    1)    Since the judgment should be based on the

     wishes of the child's guardian or custodian to provide for

     the best interests of the child, the country that most

     appropriate for the court to judge and take action should be

     the one in which the child actually resides. This demand

     takes priority over accommodating the other parties

     countersuit or defense demands. Moreover, since the habitual

     residence of the child is thought to be within the normal

     actions of custodianship of the parent and that the thoughts

     of the parent and child are the same, the habitual residence

     of a child who is residing in a boarding house somewhere

     abroad is interpreted to be consistent with the habitual

     residence of the parent

     013    2)    According to the Japanese Civil Code, if there

     is a minor involved within a divorce suit, a guardian for

     the minor must be decided (Article 819, para. 2).

     Accordingly, this is thought to be appropriate in that by

     designating a guardian for the child within the jurisdiction

     of the divorce court, it prevents the child from ending up

     with an unstable environment.  However, in cases where the

     child is residing in a peaceful environment away from the

     parent's divorce dispute, and a guardian is designated

     without taking into account his or her habitual residence,

     there is a possibility of violating the child's welfare. In

     cases where the court is to designate guardianship, and when

     the child is old enough to express his or her intentions,

     courts are obliged to hear these intentions. However, if the

     child lives in a foreign country, there is difficulty in

     attaining the actual opinion unless one of the parties

     willingly brings the child to the country where the court is

     located. Therefore, there is an opinion indicating that the

     jurisdiction of the child custody disposition within a

     divorce case should be favored not only to the country where

     the divorce is located, but also to the child's residing

     country.

     4. Trend of Japanese Courts in Judging the Jurisdiction of

     International Disputes Concerning Divorce Disputes

     014    A.    In 1964, the Grand Bench of the Supreme Court

     of Japan declared a standard for international disputes

     concerning divorce cases (Judgment of March 25, 1964, in

     Vol. 18 MINSHU, No. 3, p. 486). In this case, a divorce suit

     was filed by a women who was a former Japanese citizen

     married to a man of Korean citizenship. The Court stated,

     "for a case to be recognized as one of Japanese

     jurisdiction, in principle, the defendant must have his or

     her residence in japan. However, on the other hand, in cases

     where the plaintiff has been left and deserted or if the

     defendant's whereabouts are not certain or other situations

     involving similar circumstances exist, in principle, there

     is no reason for adhering to the above standard. Adhering to

     the above standard would jeopardize the protection of the

     status of the party filing for divorce. Therefore, based on

     the International Private Law concept of justice and

     fairness, we declare this case to be consistent with the

     above exception" favoring Japanese jurisdiction. After this

     judgment, courts in Japan have followed this standard,

     however, it has been observed by some that courts have

     judged cases in a case-by-case manner considering each

     concrete situation and have tried to judge each case

     appropriately and fairly.

     015    B.    In a case decided in 1995, one involving a

     divorce dispute between a Japanese husband and an Italian

     wife, the husband who resided in Japan brought a divorce

     suit against his wife who had gone back to Italy. The Tokyo

     District Court declared that since the couple had lived

     their married life in Japan, and that the plaintiff was a

     Japanese residing in Japan, and the defendant living in

     Italy had also brought a countersuit against her husband,

     the case should be within the jurisdiction of Japan judging

     it to be an exception to the rule as in the same manner as

     the 1964 Supreme Court ruling (Tokyo District Court Judgment

     of December 26, 1995, HANREI TIMES No. 922, p. 276). There

     is also Nagoya High Court Judgment of May 30, 1994 in HANREI

     TIMES No, 89I p. 248. In this divorce case involving a

     Canadian husband and a Japanese wife residing in Japan, the

     Nagoya High Court ruled that the 1964 Supreme Court

     exception should be used for this case. There was a special

     point in this case, the wife applied for conciliatory

     divorce in Japan. In opposition to this application, the

     husband brought suit in the Nagoya District Court declaring

     invalidity of the divorce application. The wife, in turn,

     brought a preliminary suit as countercharge for divorce

     against her husband in the same District Court.  FN07

     016    C.    In a recent Supreme Court Judgment involving a

     Japanese husband residing in Japan and a German wife

     residing in Germany, the Court favored the jurisdiction of

     the case for Japan.  FN08  The couples lived in Germany,

     however, after separation the husband returned to Japan with

     his child. In the meantime, his wife filed for divorce in

     Germany. The request was approved by the court procedure of

     service by publication. Based on the divorce judgment by the

     German court, the divorce of the parties is valid

     domestically, however, since the German judgment lacks the

     requirements for recognition in Japan (Civil Procedure Code

     Article 200, No. 2, service by publication judgments are not

     recognized if the Japanese citizen is the defendant and has

     lost the case, FN09 the marriage between the parties has not

     legally terminated. To resolve this "limping marriage"

     (please excuse this technical term), the Japanese courts

     must accept the husband divorce case since the German courts

     will not accept another identical divorce case by the

     husband. Therefore, this is another exception that is in

     accordance with the previous 1964 Supreme Court ruling.

     017    Furthermore, on the District Court level, Urawa

     District Court Koshigaya Branch declared that Japan did not

     have jurisdiction of this case because the Jurisdiction of

     the case belongs to the country where the couple's

     cooperative married life was spent and where one of the

     parties still resides. The Tokyo High Court receiving the

     case as the appellate court declared that the case did have

     jurisdiction in Japan because one party of the marriage was

     a Japanese citizen and resided in Japan.

     018    E.    In this manner, looking at the actual court

     cases, it is difficult to say that the previous 1964 Supreme

     Court Judgment has been a definite guideline. Each case has

     been judged in a case-by-case manner pursuing a fair and

     rational decision10.

     5.     In Relation to Foreign Judgments

     A.     Recognition of Foreign Judgments

     019    The commonly accepted opinion and case law suggest

     that Article 200 of the Civil Procedure Code can be applied

     for recognition of non-adversarial foreign judgments

     concerning child custody.

     020    The necessary requirement for recognition of a civil,

     final and conclusive judgment of a foreign court is, first,

     according to Article 200, No. 1: the court which has given

     the judgment has jurisdiction. The commonly accepted opinion

     is that jurisdiction of the case to the foreign court is

     favored within the Japanese laws and treaties. Osaka High

     Court Judgment of February 25 1992, HANREI TIMES No. 783 p.

     248, Tokyo District Court Judgment of January 14 1994,

     HANREI JIHO No. 1509 p. 96. However, another minor stance

     takes the position that the jurisdiction is possible if it

     is not denied by Japanese laws and treaties.  FN11

     021    Second, according to Article 200, No. 2:  for those

     losing Japanese defendants protection is afforded if the

     procedure of service by publication was not used or if a

     countersuit was actually flied.  FN12

     022    Third, according to Article 200, No.3: recognition is

     afforded if the foreign judgment is not contrary to public

     policy. According to the commonly accepted opinion this

     standard should be understood to be valid at the time of

     recognition while other minor opinions suggest theoretically

     the standard should take effect at the time the judgment is

     given.  FN13

     023    Fourth, Article 200, No. 4 is a principle of

     reciprocity, but application of this clause is under debate.

     This debate has been settled temporarily by the non-use

     theory or relaxation of use theory.

     024    As we will see, there is no agreement as of yet as to

     a single method of recognition since there are so many types

     of opinions in the court cases that follow.

     B.     Enforcement of Foreign Judgments

     025    In Article 24 of the Law of Civil Execution, in order

     to actualize a foreign judgment by way of compulsory

     execution, a judgment of enforcement is necessary. This is

     presented to the District Court for general jurisdiction of

     the debtor residence. Thereafter, the case is reviewed for

     whether or not the requirements for Article 200 have been

     met. If they are not then the case is dismissed.

     026    Furthermore, considering the special characteristics

     of continued living relationships and unstable legal

     disposition of cases involving child custody, there is an

     opinion that asserts the child's interests and welfare

     should be the only factors that ought to be considered.

     FN14

     C.     Introduction of Court Cases Recognizing Foreign

     Judgments Concerning Child Custody

     1)     Tokyo District Court Judgment of January 30, 1992.

     (HANREI TiMES No. 789, p. 259)

     027    A District Court in the State of Texas, USA, in a

     divorce case, declared a Japanese mother the sole managing

     conservator, custodial parent, however, the father brought a

     suit to the State of Texas in order to change the court

     order. In the meantime, the mother returned to reside in

     Japan with her child. A little later, the Texas court

     approved the change, and the custodial parent changed from

     mother to father, and the mother was ordered to give up the

     child to the father. This became the final judgment

     modifying prior orders in the suit affecting the

     parent-child relationship. The father brought a claim for an

     execution judgment to the Japanese court to enforce the

     previous judgment of the District Court of the State of

     Texas approving the father as the custodial parent, and to

     pass the child on from the Japanese mother to the American

     father. The Tokyo District Court approved the execution

     judgment recognizing the Texas District Court Judgment since

     it met the requirements set forth by Article 200, No. 1, No.

     3, and No. 4, of the Civil Procedure Code.

     2)     Tokyo High Court Judgment of November 15, 1993

     (HANREI TIMES No. 835, p. 132)

     028    In the appellate proceedings, the Tokyo High Court

     declared "Even nonadversarial cases concerning child custody

     form rights which are ordered by the courts are analogous

     and apply to Article 24 of the Law of Civil Execution and

     Article 200 of the Civil Procedure Code. Satisfying the two

     requirements of Article 200, No. 1. and No. 3 are enough for

     recognition.  FN15

     029    This case also fulfills the jurisdiction requirement

     (all of the members of the family lived in Texas at the time

     of filing, the mother and child left for Japan a few days

     thereafter), however, as far as the public policy

     requirement is concerned, the child (ten years old girl at

     the time of judgment) has lived in Japan for the past four

     years, is becoming accustomed to living in Japan, the child

     is afraid of the father, and she wanted to stay with her

     mother. And, since the child is not able to speak English,

     and forcing the child to live in the United States may

     jeopardize the best interests of the child.  Recognition of

     the judgment is denied.  FN16  The jurisdiction requirement

     standard during the time of the case needed to be judged

     with a substantive objective-based conclusion. In cases that

     deeply involve a child's welfare and rights, the United

     Nations Charter on Children's Rights specifically forbids

     judgments that are made on a formal basis.

     030    In this particular case, thereafter, the mother was

     able to transfer custody from the father to herself on

     February 20, 1995 The Family Court Judgment of October 9,

     1995 denied the demand for visiting rights of the father in

     the following manner:  FN17

     031    "The family law of the state of Texas (applying law)

     states that in certain instances (when it is judged that it

     is against the best interests of the child or when it is

     judged that there is a possibility of harming the child's

     physical and emotion welfare) visiting rights of a parent

     may be limited. In this case, the child (thirteen years of

     age) held feelings of hatred for the father, and has

     stubbornly denied having exchanges with him. To approve

     visitation rights against the child's will would harm the

     child's sentiments, inflict great psychological harm and

     ultimately go against the child's welfare and interests."

     032    3)    Kyoto Family Court Judgment of March 31, 1994

     (HANREI JIHOU No. 1545, p. 81)

     033    This is a case concerning visitation privileges of

     the father who is French and his daughter (presently nine

     years old and in the third grade of elementary school, dual

     citizenship) who lives with her Japanese mother. The father

     and mother were married in France, however, they separated

     and the mother returned to Japan with her child. Thereafter,

     the father filed for divorce at Cour d'appel de Paris and

     received a divorce judgment (declaring that the guardian of

     the child to be the mother with an approval of visitation

     privileges in France for the father during the child's

     school vacation periods). The father brought a suit to the

     Family Court in Japan for demand of visitation privileges,

     however, the rationality of having the child spend her long

     school vacations in France became a topic of dispute.

     Jurisdiction was approved for Japan since the child's

     habitual residence was Japan. Also, the applying law for

     this decision was HOREI Article 21 and 28 based on the

     child's dual citizenship states that the relevant country

     law is the law where the child habitually resides. Since the

     child and the mother reside in Japan the Japanese law was

     decided to be the proper law to be applied. As far as the

     validity of Cour d'appel de Paris judgment, it was separated

     into two arguments, one involving the divorce litigation

     section and the other involving the non-adversarial

     visitation privilege section. The court decided that the

     non-adversarial visitation privilege section did not meet

     the requirements of Article 200 of the Civil Procedure Code

     and therefore could not be recognized. Also, the logic

     behind the recognition requirement was that it was held in a

     country with court jurisdiction under Japanese international

     procedure, and that it did not violate public policy and

     custom. It is also judged that since the child was residing

     in Japan at the time of the filing of the divorce, Japan has

     exclusive international jurisdiction of the case concerning

     child custody. For this reason, Cour d'appel de Paris

     judgment lacks jurisdiction and cannot be recognized in

     terms of the portion concerning child custody. Therefore,

     the Family Court of Japan is free to judge on its own merits

     concerning the question of child custody. Considering the

     overall situation  the child's character, present situation

     of living (that there is a strong bond between child and

     mother, passive feelings in going to France), no

     conversational ability of the child in English or French,

     the relationship between the father and mother (mother has

     strong feelings of distrust toward the father, does not want

     to go to France) --- the court approves visitation

     privileges within Japan, and denies the father visitation

     privileges with the child in France until the time she

     enters junior high school. At that time, the parties should

     meet again to discuss the father's privileges.  FN 18

     034    By way of the above judgments, there is a debate that

     focuses on the special situation of cases concerning child

     custody that asks in what perspective the situation of the

     child after the adjudication for which recognition is sought

     should be considered within the hearing and judgment of the

     claim for execution judgment. For example, there is

     theoretical criticism against judgments made within the

     public policy requirement using method 2) since personal

     hardships of the child are not considered public policy.

     And, when this is judged within the recognition requirement,

     it becomes the court's ex-officio inquiry and in turn making

     it necessary for the court to be informed of the individual

     matters of the case even after the foreign judgment has been

     rendered which is not possible within the court's authority

     without the assertion of the parties involved.

     035    It would be irrational for the plaintiff to be

     obliged to allege such personal affairs of the adverse party

     as his/her cause of claim. It should be supposed to the

     reasons for the affirmative defense of the defendant, or

     rather to the cause of claim in that adverse party's own

     action to the former plaintiff. When courts decide on public

     policy, it should be at the time of the recognition.  The

     foreign judgment shall be recognized by Japanese courts

     without revision au fond [WMH Note: Basically, at bottom].

     The court of execution judgment should not review the merits

     of the foreign judgment.  FN19

     036    In fact, there are not so many examples of foreign

     judgments denied recognition because of violation of the

     public policy requirement.  FN20

     037    On the other hand, child custody judgments that do

     not include investigations into the child's actual living

     conditions cannot be considered to have grasped the child's

     true situation. In such cases, there may well be value

     judgments that decide not to recognize the validity of those

     judgments on the child.

     038    For this reason, there are opinions that take the

     position of separating child custody cases from divorce

     cases. These opinions suggest that non-adversarial foreign

     judgments concerning child custody do not apply to Article

     200 of the Civil Procedure Code and that there is a need to

     form a totally original recognition requirement or standard

     for child custody cases that include only the child's

     interests and welfare.  FN21

     039    The following is my opinion on the method for

     resolving some of these issues. Since the change in living

     relationships that occur between parent and child after the

     foreign judgment concerns changes in situation after

     adjudication, a claim for execution judgment presented to

     the Japanese District Courts should follow procedure of

     hearing and judgment according to Article 200 of the Civil

     Procedure Code and approve cases that can be recognized

     swiftly.  FN22

     040    If there is a change in situation thereafter, and the

     relevant law that is being applied allows an alternation in

     judgment, then the claimant should assert his position and

     change of situation to the Japanese Family Court for a

     change in child custody.  A judgment made within this

     procedure can be considered a just method.  FN23.

     041    Therefore, a continuous unjust condition can be

     avoided by preserving the disposition of the case before

     hearing it in the Family Court, and an emergency condition

     can be dealt with by filing an appeal relating to emergency

     procedures.

     042    Also, other than the method of separating

     jurisdiction of child custody dispositions from divorce

     cases, if we consider that in many instances child custody

     cases are conveniently resolved together with the divorce

     case, then another method that might be considered, for

     cases involving the child moving to a foreign country after

     a divorce claim is filed, would be to establish an

     international system through judicial cooperation to ask the

     court in the country where the child is living to do an

     investigation on the actual state of things which would

     include the intentions of the child if possible. If this

     system is possible, and this procedure is not properly

     followed, then the court in the country where the child

     resides may deny to recognize the judgment. This might also

     be beneficial for guaranteeing judicial procedure.  FN24

     6. International Abduction of Children (Parental Kidnapping)

     and Child Habeas Corpus Cases

     043    To bring a Child Habeas Corpus suit under the Child

     Habeas Corpus Law in Japan, the law requires that there is

     "restraint " and that the restraint is illegal, that the

     illegality is prominent, and there is no other appropriate

     method in remedying the situation. Examples of court cases

     follow.

     A.     Supreme Court Judgment of June 29, 1978 (HANREI TIMES

     No. 388, p. 206).

     044    An American wife and a Japanese husband married and

     lived in Japan with a child of dual citizenship (3 to 4

     years of age at the time). The wife accompanied the husband

     during a business trip to the United States and thereafter

     decided to stay and live there with her child. The husband

     returned alone to Japan, but later returned to the United

     States and seized his child and brought him home still in

     his pajamas.  The child lived thereafter with the parents of

     the husband. The wife filed for divorce. designation for

     child custody, and child support in the Superior Court of

     Los Angeles County. The wife won the case and received the

     decision of the court (designation of guardianship) without

     the presence of the husband. This case involved the wife

     bringing suit to the Japanese court by way of Child Habeas

     Corpus procedure for custody of her child. The Osaka

     District Court ruled that jurisdiction of the case was in

     Japan since during the filing of divorce the defendant was

     residing in Japan. The court ruled that it could not

     recognize the American divorce judgment because it did not

     meet the requirements of Article 200 of the Civil Procedure

     Code, thereby concluding that the child was under a

     cooperative guardianship of both parents. The court ruled to

     accept the mother's claim based on the judgment that the

     child's happiness comes from custody by either mother or

     father, and that the mother had former custody of the child

     before being seized by the father, that the mother has

     strong bond of love for the child, that the child is

     presently being taken care of by the father's parents which

     cannot be considered appropriate, and that the restraint of

     the child by the father and father's parents is prominently

     illegaL  The Supreme Cour of Japan maintained the lower

     court's opinion without disagreement. However, after the

     1993 Supreme Court Judgment this conclusion can no longer be

     maintained an claims of similar instances would be

     dismissed.

     B.     Supreme Court Judgment of November 19, 1993 (MINSHU

     Vol. 47, No. p. 5099).

     045    This is the case among Japanese parents. According to

     this decision, to prove that there is prominent illegality

     of restraint within a cooperative guardianship case, the

     claimant must clearly show that the child would be happier

     in the claimant's custody than the present situation. After

     this ruling, the usage of Child Habeas Corpus suits has

     become less effective for cases of child custody that occur

     between the couple before divorce is finalized. Similar

     cases that have been recognized by lower courts have been

     dismissed by the Supreme Court.  FN25

     046    There is significance in judgments concerning child

     custody dispositions when a dispute occurs, a person who has

     the right of child custody claims this right against the

     other that does not. In these cases, the court must decide

     swiftly about whether or not to have the child given up. In

     this regard, the 1980 Convention on the Civil Aspects of

     International Child Abduction is of great significance.

     047    However, contrary to this, there may be cases where

     the Family Court decides the right of custodianship to be

     changed because the present custodian is judged to be

     inappropriate. Therefore, it may not be good in all cases to

     have a swift decision concerning the giving up of a child

     after a recognition of a Child Habeas Corpus judgment

     because it may be a very severe burden on the child to move

     from one custodianship to another. At present, in Japan, the

     Family Court is recommending preservation of the disposition

     before hearing and less restrictive use of the Child Habeas

     Corpus procedure.  FN26

     7. The Competition Between Cases Under Litigation in Foreign

     Courts and Japanese Courts

     048    A.    International competitive suits, namely, court

     cases in progress litigated in two or more countries with

     overlapping content becoming the direct point of dispute,

     are common in general civil litigation, however, quite rare

     in litigation concerning people.  FN27

     049    It is believed, however, that in reality many cases

     of this kind exist.

     050    If a case that is being litigated in a foreign court

     is filed in a court of Japan, the following methods may be

     used in resolving general civil litigation cases in the

     Japanese court of law.

     051    1)    A case that is being litigated in a foreign

     court and has a possibility of being recognized by a

     Japanese court in the future, is treated in the same manner

     as if it were being litigated in another Japanese court at

     the same time. Therefore, that case will be dismissed for

     not having standing if filed in a Japanese court thereafter.

     Also, if the same case being litigated in a foreign court is

     considered to have violated the basic principle of good

     faith, then it will not be recognized by the Japanese court

     for not having met the public policy requirement, and the

     case that is filed thereafter will be advanced and will take

     precedent.

     052    2)    A case that has been judged to be of

     international jurisdiction, and has been judged to have

     Japanese jurisdiction because the court in Japan has the

     most relevant relation to the case (furthermore, in such

     case, foreign judgments will not be recognized in Japan).

     053    3)    A suspension of the continuation of proceedings

     of the case in Japan. The future "dates for proceedings will

     be designated later" after checking the progress of the

     foreign court proceedings. The Japanese court will resume

     proceedings only after the foreign court denies the

     jurisdiction.

     054    B.    There are critics that say that in the case of

     method 1) it would be difficult to judge the future

     possibility of recognition of a foreign judgment. I have

     never heard thus far of a case that has taken this stance.

     055    Furthermore, several cases including a Tokyo District

     Court Judgment decided on December 23, 1955 (VoL 6 KA-MINSHU

     No. 12, p. 1679) rejected the notice of lis pendens (lis

     alibi pendens) was restricted to only Japanese courts

     according to Article 231 of the Civil Procedure Code and

     should be dismissed.

     056    The Tokyo District Court Judgment of May 30, 1989

     (RANREI JIHO No. l348, p. 91) declared, in a tort case

     judged to have international jurisdiction in Japan, that the

     usage of the legal concept of prohibition of lis pendens

     (suit pending elsewhere) would be analogous to a restriction

     of a case brought to court if there was a foreign case

     preceding the Japanese one and there was relative certainty

     as to the conclusion of it and possibility of recognition of

     it as a foreign judgment. This case, however, could not

     decide on the certainty of the conclusion of the case and so

     could not use the lis pendens prohibition standard. The

     court did not declare the suit inappropriate.

     057    C.    In general civil litigation cases, many courts

     use the 2) method.  The Tokyo District Court Judgment of May

     30, 1989, mentioned above also used this method.  Those

     courts that have taken this stance and have dismissed

     litigation for recognition of foreign judgments are: Tokyo

     District Court Judgment of August 28, 1989 (HANREI JIHO, No.

     1338, p. 121); Tokyo District Court Judgment of January 29,

     1991 (HANREI JIHO, No. 1390, p. 98); Shizuoka District Court

     Hamamatsu Branch, Judgment of July 15, 1991 (HANREI JIHO,

     No. 1401, p. 98).

     058    Also, when there are conflicting judgments existing

     within both the US and Japan courts and there is a claim for

     execution judgment for a foreign judgment, the Osaka

     District Court Judgment of December 22, 1977 (HANREI TIMES,

     No. 361, p. 127) declared that if there is a previous

     judgment in Japan with the same parties and the same facts

     to the case with conflicting results, recognition of the

     foreign judgment would mean a violation of the judicial

     order. The court dismissed the case denying recognition of

     the foreign judgment referring to Article 200, No. 3 of the

     Civil Procedure Code that stated "a foreign judgment in

     violation of Japan's public order."

     059    In opposition to this opinion, critics suggest a

     position concluding that Japanese judgments are superior to

     foreign judgments before the final judgment may be used to

     favor unethical parties to a case trying to intentionally

     win the case by bringing it to the Japanese court.

     060    On a practical standpoint, method 3) is probably most

     often used. A stay that occurs based on Civil Procedure Code

     is limited to cases that are not able to be brought to

     court, and when a difficulty resulting from natural

     disasters of the parties and the court occurs (Article 220,

     221). There is no written rule for suspension concerning

     international double litigation . A suspension of this kind

     is decided by the court with the consent of both parties. If

     a consent is not possible, the only method left is for

     procedure to go on.  FN28

     061    D.    There are opinions in favor of legalizing a

     suspension system for these cases in order to maintain the

     court's integrity for making the appropriate judgment and

     the parties' right to file a complaint. In order to

     actualize Article 13 of the Hague Convention Final Act of

     the Eighteenth Session WMH FN01 requiring suspension, it is

     necessary for Japan to provide for a system to legalize

     suspension of judicial procedure in these types of cases.

     FN29

     062    E.    Since child custody cases do not involve a time

     limit in the same manner as credit/claims cases, and since

     there is a possibility of a change in judgment because of a

     future change in circumstances, there is very little need

     for strict restriction against lis pendens when there exists

     conflicting judgments between two countries.

     063    However, one can also imagine a situation where a

     child is brought back to Japan and a claim being filed in

     the Japanese Family Court for child custody, while the same

     child custody claim was filed previously in a foreign court,

     for the purposes of forum shopping and self-interest. In

     these instances, there is a need for restraints based on

     litigative economics, and principles of good faith. In

     hearings filed after the foreign case, courts must carefully

     consider the jurisdiction of the child custody case

     confirming the real habitual residence of the child by

     examining the legal situation of residency at the time of

     trial in the foreign country and whether or not the change

     in residency of the child was illegal. If it is found that

     there was illegality involved and the child is only

     considered to be living in Japan and with no residency, the

     court would be correct in judging no jurisdiction of the

     case and dismissing it. In this manner, methods and ways of

     thinking included in Article 7 WMH FN02  of the Hague

     Convention Final Act of the Eighteenth Session might

     possibly be implemented in Japanese courts.

     064    However, no matter how cunning and sly the parent who

     is the party of the case may be, since the child's welfare

     is what is at stake, lithe mitigation of the requirements

     for jurisdiction will contribute to the child's welfare,

     then the court may possibly relax the residential

     requirements. And, if the court finds a child who is in an

     emergency condition, it may be necessary for the court to

     competitively favor jurisdiction based on the emergency

     condition and disregard the question of temporary or

     habitual residence made by the cunning parent. Moreover,

     even if the litigation in progress is a divorce case, and

     the case filed in Japan thereafter is dismissed because of

     no jurisdiction, the child custody portion of the case

     should be separated and considered in the method that was

     mentioned above.

     064    For cases that are filed after a child custody

     judgment within an emergency condition has been decided, the

     judgment concerning whether or not the public policy

     requirement is met and recognition of the foreign judgment

     is approved must be based on a careful consideration of the

     changes in situation that have occurred after the initial

     child custody judgment was rendered taking into

     consideration the emergency condition at the time.

     Foot Notes

     ----------------------

     1.     These cases have been increasing since 1991.

            According to national statistics, in 1995, there were

            8850 disputes, in 1994, there were the most 3905

            cases. Within these two years, there were 1133 cases

            in which involved conciliation of married couples

            with either side or both being foreigners. Vol. 48

            HOSO JIHO No. 12 p.94, 128.

     2      There was debate on amending the new Civil Procedure

            Code validated in January 1998, to include something

            concerning international jurisdiction, however, it

            was decided to leave the Code as is. See, Kokusai

            Minji Sosho Kenkyu-kai, "Kokusai Minji Sosho no Kento

            Kadai," in NBL No 512, HANREI TIMES No. 903 p.58.

     3      For a case involving a denial of effects of the

            agreement concerning to the international

            jurisdiction on parental rights disputes in the

            Family Court, see Tokyo Family Court Judgment of June

            20, 1969, in Vol.22 KASAI GEPPO No. 3 p. 110. Also,

            for an opinion approving international jurisdiction

            within Japanese courts in matters concerning divorce

            disputes where the defendant participate in the

            litigation in Japan although there is no original

            international jurisdiction, see Onodera, "Shogai

            Jiken no Saiban Kankatsu oyobi Chotei Rikon no Kahi,"

            KOZA JITSUMU KAJI SHINPAN-HO, Vol. 5, p. 171. There

            are two cases (Yokohama District Court Judgment of

            September 21, 1960, in Vol. 11 KAMINSHU No. 9 p.1963,

            and the Kobe Family Court Judgment of November 11,

            1975, in Vol.28 KASAI GEPPO No. 11 p.106) holding

            that a dispute may have jurisdiction in the

            plaintiff's country even if the defendant does not

            reside in the plaintiff's country when the defendant

            voluntarily agrees to participate in the litigation.

     4.     For a most informative work on this topic, see

            Matsubara, "Shogai-teki Ko no Kango-Shobun Funso no

            Shori," KOZA JITSUMU KAJI SHINPAN-HO, Vol. 5, p. 213.

     5.     See, Tokyo Family Court Judgment of June 13, 1969, in

            Vol. 22 KASAI GEPPO No.3 p. 104. This solution has

            been approved by increasing numbers of courts.

     6.     See, Tokyo Family Court Judgment of June 20, 1969, in

            Vol. 22 KASAI GEPPO No. 3 p. 110 and so many cases.

     7.     For an interpretation of this case, see Taki, SHIHO

            HANREI REMARKS 1997 (Jo), p. 155.

     8      See, The Supreme Court Judgment of June 24, 1996, in

            Vol. 50 MINSHU No. 7, p. 1451.

     9.     In practice, this is applied to non-Japanese as well.

            This law has been clarified in Article 118 of the new

            Civil Procedure Code.

     10.    For an interpretation of the 1996 Supreme Court

            ruling, see Yamashita, JURIST No. 1103, p. 129, and

            Ebisawa, SHIHO HANREI REMARKS 1997 (Ge), p. 174.

     11.    Article 118, No. 1 of the new law takes the former

            position stating, "foreign court jurisdiction is

            dependent on laws and treaties." Furthermore,

            according to this new law it has been said that

            "there will be a positive reason to deny foreign

            court decisions in cases such as exceptional court

            jurisdiction interpreted by the Long Arm Law of the

            United States." See, Kobayashi & Hata, "Waga Kuni no

            Kokusai Minji Sosho," 1997 May, JIYU TO SEIGI p. 98.

     12.    Article 118, no. 2 of the new law is written in a

            manner that does not question nationality; it reads,

            "The filing of a countersuit by a defendant losing a

            case after receiving or not receiving the necessary

            summons or delivery order (excepting service by

            publication and so on) to begin litigation . . . "

            Even the interpretation of the present law is similar

            to academic opinion in that protection is not limited

            to the Japanese. Suzuki & Mikazuki eds., CHUKAI MINJI

            SHIKKOHO Vol. 1, pp. 399-; Kobayashi, KOKUSAI

            TORIHIKI FUNSO HOSEI-BAN, p. 183; Nakano, MINJI

            SHIKKOHO 2nd ed., p. 179; and others.

     13     Article 118, No. 3 of the new law states, "If the

            content of the case and litigation procedure do not

            offend the public order or good public morals . . . "

            In this manner, it takes into consideration demands

            for upholding public order and morals when

            considering the foreign cases not only the content of

            them but also their litigation procedures. This point

            has been approved within previous interpretations.

            See, Supreme Court Judgment of June 7, 1983 (Vol. 37

            MINSHU No. 5 p. 611).

     14.    See Okuda, SHIHO HANREI REMARKS (Ge), p 164 (1995)

     15.    Takeshita, "Hanrei kara mita Gaikoku Hanketsu no

            Shonin," in HANREI MINJI SOSHO-HO NO RIRON (Ge), p.

            525; but see, Ishiguro, KOKUSAI MINJI SOSHO-HO, p.

            213, 214, 114. Ishiguro questions this point by

            saying there is no need in adhering to the separation

            of normal cases and non-adversarial cases in

            recognizing foreign administrative action.

     16.    See supra. note 15, Ishiguro, p. 240, 241. (Footnote

            656) He supports this case because the conclusion was

            just.

     17.    See, Vol. 48 KASAI GEPPOU No.3 p. 69

     18.    For an interpretation of this case, see Nakagawa

            (Family Court Councillor for this case), HORITSU NO

            HIROBA p. 58 (November 1996); also, see Ebisawa,

            JURIST No. 1091 p. 255; Takakuwa, SHIHO HANREI

            REMARKS (Ge), p. 156 (1996).

     19.    See, Nakanishi, "Gaikoku Hanketsu no Shonin Shikko ni

            okeru Revision Au Fond no Kinshi ni tsuite (4)," Vol.

            136 HOGAKU RONSO No. 1 pp. 6.  Nakanishi suggests

            that when considering the public policy requirement,

            the court need not be restricted to the facts of the

            foreign judgment, and that the court is able to do

            the necessary research on the facts of the case, and

            give its judgment. This process would not be

            violating prohibition revision au fond of the

            judgment. The reason is that the recognition of the

            public policy requirement is being considered within

            the Japanese International Civil Procedure Law and

            the court is considering the results of the foreign

            judgment's recognition and not the validity of the

            foreign judgment itself.

     20.    In a recent Supreme Court Judgment of July 11, 1997

            (Vol. 51 MINSHU No. 6 p. 2530), it approved a High

            Court judgment that rejected a portion of a foreign

            judgment execution order which concerned punitive

            damages, nullifying its effect since accepting this

            judgment would violate this countries public order.

     21.    See, Okuda, SIHO HANREI REMARKS (Ge) p. 165 (1995)

     22.    See, Okada, "Gaikoku Hanketsu no Shonin Shikko Yoken

            to shite no Kojo ni tsuite (4)," No. 152 HOSEI RONSHU

            p. 465; "Gaikoku Hanketsu no Shonin Shilko Yoken to

            shite no Kojo ni tsuite (5)," No. 153 HOSEI RONSHU p.

            369. According to Okada, for foreign recognition and

            execution cases concerning the act of giving up the

            child, the court should review and make decisions on

            the substantive ground based on the "child's

            welfare." And as far as reviewing public policy

            requirements, the court should consider the various

            factors substantively, and make a decision based on

            whether the court's execution will bring to bear

            intolerableness. For an opinion that suggests

            adopting an easier decision process on execution

            litigation procedure, see especially, Kobayashi &

            Oda, "Gaikoku Hanketsu Shonin Yoken Saikento no

            Hokosei," HANREI TIMES No. 840 p. 36.

     23.    See, Kono, "Kokusai Shiho no Soten ," JURIST, p. 186.

            According to Kono, "Foreign cases concerning custody

            do exist, however, in cases where the execution of

            these cases are not required and habeas corpus

            procedure is not involved, and since a dispute of the

            sentiments of the parent living abroad will come into

            question, the court should handle the case in a

            similar manner when court procedure has not been

            taken in the foreign country."

     24.    For an article from a court administrative point of

            view that has organized academic opinion and court

            cases according to issues, see Kobayashi, "Gaikoku

            Hanketsu no Shikko Hanketsu ni tsuite," HANREI TIMES

            No. 937 pp. 33.

     25.    For a similar decision, see Supreme Court Judgment of

            April 26, 1994 (Vol. 48, MINSHU No. 3, p. 992.

     26.    For a recent instructive interpretation of that time,

            see Segi "Ko no Hiki Watashi to Jinshin Hogo Seikyu,"

            HANREI TIMES No. 919 p. 4.

     27.    There are cases where a Japanese parent returns to

            Japan with the child while a divorce case is in

            process in the foreign country, and files a new

            divorce suit (in similar form) in Japan. In most

            cases, the Japanese parent does not begin the

            litigation immediately. During this waiting period

            the decision of the case in the foreign country is

            handed down and the execution of the foreign judgment

            is disputed.

     28.    For reference material on this period, see Sawaki

            "Kokusai-teki Sosho Kyogo," in SHIN JITSUMU MINNJI

            SOSHO KOZA Vol. 7, pp. 105; Sakai, "Kokusai-teki Niju

            Kiso ni kansuru Kaishakuron-teki Kosatsu," HANREI

            TIMES No. 829 p. 39; Kobayashi "Kokusai Sosho Kyogo

            (Ge)," in NBL No. 525, p. 34; Kobayashi, "Kokusai

            Sosho Kyogo (Ge) in NBL No 526, p. 37; Dogati &

            Hayakawa "Kokusai-teki Sosho Kyogo no Shomondai,"

            Kokusai Shiho no Souten JURIST, p. 253; Ishiguro,

            "Gaikoku iii okeru Sosho Keizoku no Kokunai-teki

            Koka," in KOKUSAI MINJI SOSHO HO NO RIRON, p. 323;

            Watanabe, "Kokusai-teki Niju Sosho-ron," HANREI MINJI

            SOSHO HO NO RIRON (Ge), p. 476.

     29     During the amendment process of the Civil Procedure

            Code, a suspension system for cases of international

            conflicting judgments was presented, however, in the

            end it was passed up.  For detnils on this see

            Kobayashi, supra, Note 28, NBL No. 526, p. 41

     WMH Foot Notes

     ----------------

     01     Hague Convention of 19 October 1996 on Jurisdiction,

            Applicable Law, Recognition, Enforcement and

            Co-Operation in respect of Parental Responsibility

            and Measures for the Protection of Children.

            Art. 13 reads as follows:

            1  The authorities of a Contracting State which have

            jurisdiction under Articles 5 to 10 to take measures

            for the protection of the person or property of the

            child must abstain from exercising this jurisdiction

            if, at the time of the commencement of the

            proceedings, corresponding measures have been

            requested from the authorities of another Contracting

            State having jurisdiction under Articles 5 to 10 at

            the time of the request and are still under

            consideration.

            2  The provisions of the preceding paragraph shall

            not apply if the authorities before whom the request

            for measures was initially introduced have declined

            jurisdiction.

     02     Art. 7 reads as follows:

            1     In case of wrongful removal or retention of the

            child, the authorities of the Contracting State in

            which the child was habitually resident immediately

            before the removal or retention keep their

            jurisdiction until the child has acquired a habitual

            residence in another State, and a each person,

            institution or other body having rights of custody

            has acquiesced in the removal or retention; or b the

            child has resided in that other State for a period of

            at least one year after the person, institution or

            other body having rights of custody has or should

            have had knowledge of the whereabouts of the child,

            no request for return lodged within that period is

            still pending, and the child is settled in his or her

            new environment.

            2     The removal or the retention of a child is to

            be considered wrongful where _

            a     it is in breach of rights of custody attributed

            to a person, an institution or any other body, either

            jointly or alone, under the law of the State in which

            the child was habitually resident immediately before

            the removal or retention; and

            b     at the time of removal or retention those

            rights were actually exercised, either jointly or

            alone, or would have been so exercised but for the

            removal or retention.

            The rights of custody mentioned in sub-paragraph a

            above, may arise in particular by operation of law or

            by reason of a judicial or administrative decision,

            or by reason of an agreement having legal effect

            under the law of that State.

            3     So long as the authorities first mentioned in

            paragraph 1 keep their jurisdiction, the authorities

            of the Contracting State to which the child has been

            removed or in which he or she has been retained can

            take only such urgent measures under Article 11 as

            are necessary for the protection of the person or

            property of the child.