Research On Spousal Personal Relationships By Japanese Law

This paper is to study the spousal personal relationships under Japanese law,mainly based on the legal norms of Japanese family law,focusing on the analysis of several important kinds of personal rights and obligations of spouses.Through institutional changes,theoretical evolution and the development of judicial practice,this paper attempts to refine the general rules and basic characteristics of the development of the spousal personal relationships in Japan,so as to reflect on the legislative value orientation in the construction of the system of personal rights and obligations of spouses in China.Meanwhile,this paper mainly focuses on the conflict and reconciliation between personal liberalism and marriage community order in the spousal personal relationships under Japanese law.From the perspective of the timeline,the spousal personal relationships in Japan present different characteristics under the background of the period by Old Civil Code,the period by Meiji Civil Code,the comprehensive revision of the Civil Code during the Second World War and the diversity of modern family life.Generally,there are two rules of development:first,the distribution of personal rights and obligations of spouses gradually changes from inequality to equality;second,the personal rights and obligations of spouses shift from safeguarding the interests of "husband’s family" and"husband’s rights" to the interests of marital symbiosis.These two clues do not exist separately,but are related to each other,and this evolvement originated from the contest between individual departmentalism in pursuit of freedom and equality and family departmentalism in maintaining family order during different history periods.During the Meiji and Taisho periods,in order to maintain the traditional ethical order in the Japanese "family" system,the rules and laws of spousal personal relationships regulated the surname,cohabitation,loyalty and maintenance,which gave rise to the inequality between husband and wife due to their gender differences.After the Second World War,the Civil Code was amended.The "family" system was abolished so that the individual was liberated from the "family",and the legal regulations of gender inequality in personal relationships of spouses were largely removed.In modern society,with the diversity of individual life styles,individualism excessively advocates the supremacy of personal happiness,which leads to doubts about the existence of personal rights and obligations of spouses,and the fiercest criticism is that it may make the exercise of the right of personality null and void.In the face of this concern,the experience of Japanese law is mainly to integrate the value connotation of spouses’ personal rights and obligations internally,and to reconcile the conflict with personality rights from the outside.In short,on the legislative concept,family departmentalism is amended by using individualism and the conflicts among legal values of "freedom,equality and order" will be balanced in the laws of spousal personal relationships.Specifically,it takes the"freedom" of husband and wife’s personality as the premise,the "equality" of both sexes as the guarantee,and the "order" of marital symbiosis as the foundation.In addition to the introduction and conclusion,the full text is mainly divided into six chapters.The first chapter is about the development of Japanese Civil Code and the evolution of spousal personal relationships under Japanese law.The personal rights and obligations of spouses in Japan are mainly stipulated in the Old Civil Code,the Meiji Civil Code and the Civil Code revised since the Second World War.Every time the provisions of spousal personal relationships under Japanese law are amended,there are heated discussions,from which we can see the pursuit of substantive gender equality in Japanese family law,as well as the constraints of the traditional "family" system faced in this process.The current regulations of spousal personal relationships in Japan can be defined as the product of the integration of individualism and family departmentalism:on the one hand,individualism not only promotes the modernization of Japanese Civil Code,but also brings progressive factors to the changes of Japanese family law,which is reflected in the abolishment of the backward legal provisions belittling women’s personality with regard to personal rights and obligations of spouses,realizing the substantive gender equality.However,on the other hand,the concept of property law centered on personal interests may dispel altruism in family law.Therefore,the Japanese family law tries to take care of the Japanese people’s special feelings for the family.Although the traditional "family"system has been abandoned,the rules of spousal personal relationships under Japanese law have not been completely eroded by individualism.Compared with the relevant legal systems in the West,its slightly conservative system is designed to maintain the stability of the identity relationships between husband and wife and the order of the marital symbiosis.The second chapter is to discuss the game with the same surname and different surnames between husband and wife.Article 750 of the Civil Code of Japan stipulates the system of the same surname for husband and wife,which can be traced back to the Meiji Civil Code.The wife takes her husband’s surname because she marries into her husband’s family.At that time,the surname symbolized the family name.Until the Second World War,the Civil Code 1947 abolished the "family" system and stipulated that the spouses could choose the husband’s or wife’s surname as their common one.Therefore,some theories believe that the surname already has the characteristics of personal appellation.However,since in reality most people still choose husband’s surname,the existing husband and wife surname rule is only considered as equality in form.Therefore,the system of "husband and wife with different surnames" has become a hot issue in the field of Japanese family law,but because the Japanese people have emotionally recognized the positive role of the system of the same surname in condensing the marital symbiosis for a long time,this leads to all kinds of obstacles in the introduction of the system of different surnames.In order to respect the cultural significance of surnames in the development of Japanese history,it is suggested that the existing provisions of the same surname for husband and wife should be retained in legislation and the different surnames of husband and wife should be added as alternative obiects.The third chapter focuses on the evolution and orientation of cohabitation obligation within a marriage.Japanese law confirms and guarantees the obligation of cohabitation both in entity and procedure.The obligation of cohabitation in Meiji Civil Code emphasized the obligation of wife to husband.After the Second World War,the Civil Code 1947 stipulated that couples have the obligation of cohabitation on an equal footing.From the process of legislative change,the obligation of cohabitation has removed the color of binding and belittling women,and the legal nature has changed from husband’s dominant right to spouses’ rights of claim.From the perspective of judicial practice,the action of cohabitation can not be enforced,and its main significance is not to force those who are slack to fulfill their obligations to perform,but to look forward to guiding the parties to think about whether it is possible to successfully restore the order of marital symbiosis in the process of settlement of disputes.In addition,with the rise of individual rights,the rationality and necessity of the obligation of cohabitation are challenged,the most obvious of which is to worry about the personality rights such as sexual autonomy,right to health and so on will be removed.Opponents suggest that the obligation of cohabitation should be deleted directly and replaced with moral consciousness.Cohabitation obligation is the essential obligation and ethical content of marriage,which can not be changed,but it can be softly and extensively explained in the content and form of cohabitation obligation in modern society.In addition to recognizing the suspension of cohabitation obligations under legitimate reasons,its content can also be added with mutual help and family affairs decision-making under special circumstancesThe fourth chapter is on the legal regulation to infidelity of a husband or a wife.In marriage,the goal of the autonomous exercise of sexual rights of both parties should be beneficial to bilateral sexual rights,and should be restricted by the ethical order of marital symbiosis.This order is not only reflected in the cohabitation obligation between husband and wife mentioned above,but also in the duty of loyalty.In Japanese law,the violation of the duty of loyalty is mainly manifested as infidelity,which is not only one of the reasons for divorce,but also the liability for damages of tort.In divorce law,the divorce effect caused by infidelity is equally distributed between the sexes,so the duty of loyalty realizes the equal burden between husband and wife.In tort law,the tort action based on infidelity is mainly aimed at the third party who destroys the marital relationship,and the damaged interests are not only based on the personal interests generated from the spouse’s identity,it also lies in the interests of maintaining a peaceful life between husband and wife and the stability of marriage order.The fifth chapter is about the obligation of support between husband and wife based on the dichotomy of support.From the perspective of legislative changes,the obligation of support between husband and wife is mainly separated from the support of relatives and stipulated separately:in the Meiji Civil Code,in order to respect the traditional custom of family members living together in the big "family" court,the obligation of support between husband and wife is considered to be no different from that of other relatives,so legally it is included in the chapter of relative support in addition to the marriage chapter.After the Second War,the system of "family" was abolished,and the core of the family separated the life of spouses based on marriage from the life of the original extended family,and the obligation of support between husband and wife was distinguished from that of their relatives.As a result,the obligation of the husband or wife to support the relatives is deleted in the chapter of relatives’ support.In the development of theory,in the early days of Showa period,Japanese scholar Nakagawa Yoshinosuke introduced support dichotomy from Swiss law,that is,support includes life maintenance obligations and life support obligations,spouses’ support obligations for the former,relatives’ support obligations for the latter.The duty to maintain life is the obligation of sharing food even if there is the last piece of meat and a grain of rice,not to help others,but to maintain it as you do in your own life.The duty of life support is to help others without sacrificing your status and life.With the respect for individual dignity in modern society,the life maintenance obligation between husband and wife is questioned by theories such as the right to existence,which can be modified by introducing public support from the outside.The sixth chapter is about the re-thinking on spousal personal relationships based on the Japanese law practice.In the process of legal modernization,people often turn pale at the mention of "identity".The family departmentalism in feudal society made the wife’s personality absorbed by the husband by making use of the identity difference of "husband" and "wife".With the rise of modern individualism,personality independence and equality gradually came true between husband and wife.At present,the biggest challenge is whether the laws of spousal personal relationships will cause the historical retrogression of the doctrine of separate conjugal personalities that has been gradually realized.Therefore,clarifying the legislative value orientation of the laws of spousal personal relationships will be beneficial to the system design of the personal rights of husband and wife.The basic experience of Japanese law is to use the individualism to amend the family departmentalism and to make the legislation ism of the laws of spousal personal relationships become the marriage synergism.Under the guidance of this doctrine,the legal values of freedom,equality and order in the personal rights and obligations of spouses are integrated internally;from the outside,the conflict of rights that may be caused by the exercise of personal rights and obligations of spouses is mainly to reconcile with the conflict of general personality rights.With reference to the experience of Japanese law of spousal personal relationships,it is suggested that the system of personal rights and obligations of spouses in China should continue to maintain the excellent elements of the "family" culture and take the maintenance of the order of marital symbiosis as the main legislative value orientation.