48 Japanese Ann. Int'l L. 26 (2005)
Nationality of Children Born out of Wedlock under Japanese Law - Recent Developments in the Case Law

handle is hein.journals/jpyintl48 and id is 34 raw text is: 26

NATIONALITY OF CHILDREN BORN OUT OF WEDLOCK
UNDER JAPANESE LAW
-   Recent Developments in the Case Law
Yasuhiro Okuda*
Introduction
Before 1990 most of foreigners staying in Japan were Koreans, Taiwanese, and
their descendants who had come to Japan before the Second World War when Korea
and Taiwan had been territories of Japan.' They are referred to as Old Comers.(2'
Since 1990 the number of newly arrived foreigners, or New Comers, has increased
significantly. These people have come predominantly from: South-East Asia
including the Philippines and Thailand; South America including Brazil and Peru;
and East Asia including China and Korea.' Among these New Comers there are
many women who end up giving birth to children with Japanese men. Thus, a
question naturally arises as to whether these children acquire Japanese nationality.
Japan follows a jus sanguinis rule for natural acquisition of nationality: a child
acquires Japanese nationality where his or her father or mother is a Japanese national
at the time of his or her birth.' The preliminary question of who is a father or
mother depends on the law applicable to parental relationships designated by the
Japanese conflict of laws rules. According to this rule, a child is legitimate for
Japanese law where the child is legitimate under the national law of one of the
spouses at the time of the child's birth.m Thus, where a foreign mother is married to
*    Professor of Law, Law School, Chuo University. The author thanks Professor Kent Anderson
(The Australian National University) for his comments, advice, and revising the English text.
(1)  Statistics on registered foreigners by nationality are available at <http://www.stat.go.jp/data
nenkan/zuhyou/y0213014.xls>. They show 664,536 Koreans and 52,896 Chinese, that is 91.6 percent of
782,910 foreigners in 1980, as well as 687,940 Koreans and 150,339 Chinese, that is 77.9 percent of 1,075,317
foreigners in 1990.
(2)  Old Comers are eligible for visas as Special Permanent Residents under Nihonkoku tono Heiwa
joyaku ni motozuki Nihon no Kokuseki wo Ridatsu sita Monoto no Shutsunyukoku Kanri ni kansuru Tokureiho [Act on
an Exception of Immigration Control to Persons who lost Japanese Nationality by the Peace Treaty with
Japan, and Similar Persons], Law No. 71/1991, last amended by Law No. 73/2004.
(3)  Statistics cited in note 1 show 613,791 Koreans, 462,396 Chinese, 274,700 Brazilians, 185,237
Filipinos, 53,649 Peruvians, and 34,825 Thais, that is 84.8 percent of 1,915,030 foreigners in 2003.
(4)  Article 2, Number 1 of Kokuseki-ho [Nationality Act], Law No. 147/1950, last amended by Law
No. 147/1994. The English translation is available at <http://www.moj.go.jp/ENGLISH/CIAB/law01.html>.
(5)  Article 17, Paragraph 1 of Horei [Act on the Application of Laws], Law No. 10/1898, last amended
by Law No. 151/1999. The English translation is available at <http://www.hawaii.edu/aplpj/pdfs/v3-08-
Okuda.pdf>.

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