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Japan's top court voids controversial inheritance clause

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(Globalpost/GlobalPost)

Japan's Supreme Court ruled Wednesday that a controversial legal clause granting less inheritance to children born out of wedlock compared with siblings of married parents is unconstitutional, adding momentum to revise the legislation.

The landmark decision by the top court puts an end to a longtime dispute over a Civil Code clause that states that a child born out of wedlock is entitled to inherit only half of what their siblings born to wedded parents inherit.

At the heart of the controversy was an article in the Civil Code which the court's Grand Bench said "violates the principle of equality under the law as stipulated in the Constitution." The clause has sparked criticism at home and abroad for being discriminatory.

Following the court's reversal of a Supreme Court decision in 1995 that found the clause constitutional, senior government officials said the government takes the ruling "seriously" and vowed to implement "necessary measures."

"We must deal with (this matter) as soon as possible," Chief Cabinet Secretary Yoshihide Suga said at a news conference, suggesting the government intends to revise the Civil Code during the extraordinary Diet session in autumn at the earliest.

It is the first time for the top court to rule a clause in the Civil Code as unconstitutional.

The decision was unanimous among 14 justices who took part in Wednesday's session. Only one out of the 15-member Grand Bench did not join, due to conflict of interest in a past assignment.

The Grand Bench said in the ruling there is a public perception that it is "unacceptable to discriminate" against children who cannot choose their parents and there is more focus on individual rights.

Taking into account diversified public views on family settings and a global trend to eliminate discrimination, the clause violated the Constitution as far back as July 2001, the ruling said, adding that inheritance claims will not be retroactive for settled cases.

The Grand Bench is convened when the court plans to change its interpretation of the Constitution or reverse a legal precedent.

The 1995 ruling said Paragraph 4 of Article 900 respects the position of children born to married parents, while protecting children born out of wedlock by giving the latter half of the inheritance awarded to the former.

However, five out of the 15 justices of the Supreme Court's Grand Bench had opposed the majority opinion, saying the stipulation in the Civil Code violated the "individual dignity" in the Constitution because it sanctioned discrimination against children born out of wedlock, who "have no responsibility in their birth."

The 1995 judgment set a legal precedent guiding top court rulings in later such cases, but there has always been opposition to the constitutionality of the clause.

Subject to Wednesday's decision were two court cases on inheritance disputes in Tokyo and Wakayama Prefecture in which the fathers died in 2001.

In both cases the lower courts had ruled that the Civil Code clause was constitutional, prompting the children born out of wedlock and their lawyers to appeal the rulings.

A woman who filed an inheritance claim in Wakayama said she feels "happy to regain" her worth, noting that when she was told she can inherit only one-half, she felt as if her "worth (as a person) was one-half."

"I strongly hope that the legislation will be revised without further delay and (we can) create a society without discrimination," she said.

The controversial clause was first established in the old civil code in 1898 and was left untouched in the postwar version.

Japan was touted as the only industrialized nation to retain a clause in its law that is discriminatory against children born out of wedlock, unlike the United States and Europe which were already working to end such discrimination in the 1960s.

The United Nations has repeatedly urged the Japanese government since 1993 to change the clause.

In February 1996, an advisory panel to the justice minister proposed giving equal inheritance rights to children born within and outside a marriage but the idea was blocked by lawmakers who stuck to the traditional views of a family.

Advocates for the constitutionality of the clause say that taking out the clause could lead to destroying the traditional family system and encouraging extramarital affairs.

In 2011, the number of children born out of wedlock was about 23,000 in 2011, or about 2.2 percent of the total number of childbirths, health ministry data showed.

==Kyodo

http://www.globalpost.com/dispatch/news/kyodo-news-international/130904/japans-top-court-voids-controversial-inheritance-claus