| Laws relating to Private International Law in Japan
Japanese |English
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| ■ Act on General Rules for Application of Laws (Act No. 78 of 2006, Entry into force on January 1, 2007) |
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Chapter 1 - General Provisions Purpose Article 1 This Act shall provide for the general rules on the application of laws. Chapter 2 - General Rules for Statutes Effective Date of Acts Article 2 An act shall become effective on the twentieth day after its promulgation, unless otherwise provided for in such act. Customs Having the Same Effect as Laws Article 3 Customs which are not incompatible with public order and good morals shall have the same effect as laws if they are authorized by provisions of statutes or statutory instruments, or concern matters not otherwise prescribed by such provisions. Chapter 3 - General Rules for Governing Law Section 1 - Persons Capacity to Act Article 4 (1) A person’s capacity to act is governed by his/her national law. (2) Notwithstanding the preceding paragraph, a person shall be deemed to have the capacity to act, when he/she has the capacity to act under the law of the place of the act and all the parties of the juristic act are located in the same jurisdiction at the time of the act, even if he/she is a person with limited capacity under his/her own national law. (3) The preceding paragraph does not apply to either a juristic act which is governed by any law on family relationships or succession, or to a juristic act involving immovables which are not located in the same jurisdiction as that of the place of the act. Order for Commencement of Guardianship etc. Article 5 A court may issue an order for commencement of guardianship, curatorship or assistance (hereinafter referred to as an “order for commencement of guardianship etc.”) under Japanese law if the ward or person under curatorship or assistance is domiciled or resident in Japan or has Japanese nationality. Adjudication of Disappearance Article 6 (1) A court may make an adjudication of disappearance if an absentee was domiciled in Japan or had Japanese nationality at the time that he or she was last confirmed alive. (2) Even if the requirements provided for in the preceding paragraph are not satisfied, if an absentee has property in Japan, a court may make an adjudication of disappearance with regard to his/her property. Also, if an absentee has a legal relationship which either is governed by Japanese law or has some bearing on Japan in light of the nature of the legal relationship, his/her domicile and nationality and other circumstances, a court may make an adjudication of disappearance with regard to such a legal relationship. Section 2 - Juristic Acts Choice of Governing Law by the Parties Article 7 The formation and effect of a juristic act shall be governed by the law of the place which was chosen by the party/parties at the time when the act was made. No Governing Law Chosen by the Parties Article 8 (1) If there is no applicable law chosen by the party/parties as in the preceding article, the formation and effect of a juristic act shall be governed by the law of the place with which the act was most closely connected at the time the act was made. (2) In the case of the preceding paragraph, if the characteristic performance of a juristic act is to be made by one party, the law of his/her habitual residence (if the party has an establishment which is related to the juristic act, the law of the place where the establishment is located, and if the party has several establishments in different jurisdictions which are related to the juristic act, the law of the place where the principal establishment is located) is presumed to be the law of the place with which the juristic act is most closely connected. (3) Notwithstanding the preceding paragraph, in applying paragraph 1, if the object of the juristic act is an immovable, the law of the place where the immovable is situated is presumed to be the law of the place with which the act is most closely connected. Change of Governing Law by the Parties Article 9 The parties to a juristic act may change the law governing the formation and effect thereof. However, if the change of the governing law would prejudice the rights of a third party, the change may not be asserted against such third party. Formalities of Juristic Acts Article 10 (1) The formalities of a juristic act shall be governed by the law which applies to the formation of the act (if the applicable law is changed after the juristic act was made pursuant to the preceding article, it shall be governed by the law that was previously applicable). (2) Notwithstanding the preceding paragraph, a juristic act shall be formally valid if it conforms with the law of the place where the juristic act was made. (3) In applying the preceding paragraph, with regard to a declaration of intention to make a juristic act to a person who is in a different jurisdiction, the law of the place where the declaration was made is deemed to be the place where the juristic act was made. (4) The provisions of the preceding two paragraphs shall not be applicable to a contract concluded between persons who are in different jurisdictions. In this case, notwithstanding paragraph 1, the contract shall be formally valid if it conforms with the law of the place from which the notice of offer or that of acceptance has been sent. (5) The provisions of the preceding three paragraphs shall not be applicable to juristic acts which create or dispose of rights in rem to movables or immovables, or other rights requiring registration. Special Rules for Consumer Contracts Article 11 (1) Even if the law governing the formation and effect of a contract (except for a labor contract) that is concluded between a consumer (the term "consumer" as used in this article means an individual who becomes a contractual party neither in nor for the purpose of business) and a business operator (the term "business operator" as used in this article means a juridical person or other association or foundation, or an individual who becomes a contractual party in or for the purpose of business), which is referred to in the following provisions of this article as a “consumer contract”, is, according to a choice or change of governing law pursuant to Article 7 or Article 9 respectively, a law other than the law of the place where the consumer habitually resides, the specific mandatory rules in the law of the consumer’s habitual residence shall also apply to matters subject to such mandatory rules with regard to the formation and effect of the consumer contract, provided that the consumer expresses his/her will to the business operator to the effect that such mandatory rules should apply. (2) If the parties have not chosen a law to govern the formation and effect of their consumer contract pursuant to Article 7, the formation and effect of such consumer contract shall be, notwithstanding Article 8, subject to the law of the consumer’s habitual residence. (3) Even if a law other than the law of the consumer’s habitual residence has been chosen to govern the formation of a consumer contract pursuant to Article 7, the specific mandatory rules in the law of his/her habitual residence shall exclusively apply to matters subject to such mandatory rules with regard to the formalities of the consumer contract, notwithstanding paragraphs 1, 2 and 4 of the preceding article, provided that the consumer expresses his/her will to the business operator to the effect that such mandatory rules should apply. (4) If the law of the consumer’s habitual residence has been chosen to govern the formation of a consumer contract pursuant to Article 7, and if the consumer expresses his/her will to the business operator to the effect that the law of his/her habitual residence should exclusively apply to the formalities of the consumer contract, the formalities of the consumer contract shall be governed by the law of the consumer’s habitual residence, notwithstanding paragraphs 2 and 4 of the preceding article. (5) If the parties have not chosen a law to govern the formation of their consumer contract pursuant to Article 7, the formalities of the consumer contract shall be governed by the law of the consumer’s habitual residence, notwithstanding paragraphs 1, 2 and 4 of the preceding article. (6) The preceding paragraphs 1 through 5 are not applicable in any of the following cases: (i) the business operator’s establishment which relates to the consumer contract is located in a jurisdiction other than the jurisdiction of the consumer’s habitual residence, and the consumer goes to the jurisdiction of the business operator’s establishment and concludes a consumer contract in that jurisdiction; except where the consumer has been solicited by the business operator to conclude the consumer contract in that jurisdiction. (ii) the business operator’s establishment which relates to the consumer contract is located in a jurisdiction other than the jurisdiction of the consumer’s habitual residence, and the consumer goes to the jurisdiction of the business operator’s establishment and receives or is to receive complete performance by the business operator in that jurisdiction; except where the consumer has been solicited by the business operator to receive complete performance to be performed by the business operator in that jurisdiction. (iii) at the time the consumer contract is concluded, the business operator is unaware of the location of the consumer’s habitual residence and has reasonable ground for such unawareness. (iv) at the time the consumer contract is concluded, the business operator has misidentified the counterparty as not being a consumer and has reasonable ground for such misidentification. Special Rules for Labor Contracts Article 12 (1) Even if the law governing the formation and effect of a labor contract is, according to a choice or change of governing law pursuant to Article 7 or Article 9 respectively, a law other than the law of the place with which the labor contract is most closely connected, the specific mandatory rules in the law of the place with which the labor contract is most closely connected shall also apply to matters subject to such mandatory rules with regard to the formation and effect of the labor contract, provided that the employee expresses his/her will to the employer to the effect that such mandatory rules should apply. (2) In applying the preceding paragraph, the law of the place where labor is to be carried out according to the labor contract (if the place where labor is to be carried out cannot be identified, the law of the place of the establishment at which the employee has concluded the employment contract; the same definition applies to the following paragraph) is presumed to be the law of the place with which the labor contract is most closely connected. (3) If the parties have not chosen a law to govern the formation and effect of the labor contract pursuant to Article 7, the law of the place where labor is to be carried out is, notwithstanding Article 8, paragraph 2, presumed to be the law with which the labor contract is most closely connected. Section 3 - Rights in Rem etc. Rights in Rem and Rights Requiring Registration Article 13 (1) Rights in rem and other rights requiring registration with regard to movables or immovables shall be governed by the law of the place where the subject property is located. (2) Notwithstanding the preceding paragraph, the acquisition and Loss of the rights provided for in the preceding paragraph shall be governed by the law of the place where the subject property is located at the time when the events causing the acquisition or loss are completed. Section 4 - Obligations Negotiorum gestio and Unjust Enrichment Article 14 The formation and effect of claims arising from agency by necessity (negotiorum gestio) or unjust enrichment shall be governed by the law of the place where the events causing the claims occurred. Exception for Cases Where a Manifestly More Closely Connected Place Exists Article 15 Notwithstanding the preceding article, the formation and effect of claims arising from negotiorum gestio or unjust enrichment shall be governed by the law of the place which is manifestly more closely connected with the negotiorum gestio or unjust enrichment than the place determined pursuant to the preceding article, considering that the parties had their habitual residence in the same jurisdiction at the time when the event occurred, the negotiorum gestio or unjust enrichment has arisen in connection with a contract between the parties, or other circumstances of the case. Change of Governing Law by the Parties Article 16 The parties to a negotiorum gestio or unjust enrichment may, after the events causing either to occurs, change the law governing the formation and effect of claims arising therefrom. However, if the change of the governing law would prejudice the rights of a third party, the change may not be asserted against such third party. Torts Article 17 The formation and effect of claims arising from a tort shall be governed by the law of the place where the results of the infringing act are produced. However, if it was not foreseeable under normal circumstances that the results would be produced at that place, the law of the place where the infringing act occurred shall apply. Special Rule for Product Liability Article 18 Notwithstanding the preceding article, the formation and effect of claims arising from torts which are detrimental to life, body or property of other persons caused by a defect in a delivered product (the term "product" as used in this article means any goods which are produced or processed) against a producer (the term "producer" as used in this article means any person who produces, processes, imports, exports, distributes or sells the product in the course of his/her business) or any person who identifies himself/herself as a producer by indicating on the product to the effect that he/she is presumed to be a producer (these persons are referred to in this article as "producer etc.") shall be governed by the law of the place where the product is delivered to the victim. However, if the delivery of the product at that place is not foreseeable under normal circumstances, the law of the place of the principal establishment of the producer etc. (if he/she has no establishment, the law of the place of his/her habitual residence) shall apply. Special Rule for Defamation Article 19 Notwithstanding Article 17, the formation and effect of claims arising from defamation against an individual or an entity shall be governed by the law of the place of such defamed person’s habitual residence (the law of the place of its principal establishment, if the defamed person is a juristic person or other association or foundation). Exception for Cases Where a Manifestly More Closely Connected Place Exists Article 20 Notwithstanding the provisions of the preceding three articles, the formation and effect of claims arising from a tort shall be governed by the law of the place which is manifestly more closely connected with the tort than the place determined pursuant to the preceding three articles, considering that the parties had their habitual residence in the same jurisdiction at the time when the tort occurs, the tort constitutes a breach of obligations under a contract between the parties, or other circumstances of the case. Change of Governing Law by the Parties Article 21 The parties to a tort may, after the tort has occurred, change the law governing the formation and effect of claims arising therefrom. However, if the change of the governing law would prejudice the rights of a third party, the change may not be asserted against such third party. Limitation on Torts by Public Policy (Ordre public) Article 22 (1) If the rights and obligations relating to a tort shall be governed by a foreign law, claims for damages or any other remedies under that law may not be claimed if the actions causing the tort are not unlawful under Japanese law. (2) If the rights and obligations relating to a tort shall be governed by a foreign law, even if the actions causing the tort are unlawful both under that foreign law and Japanese law, the victim may not claim any greater recovery of damages or any other remedies than those available under Japanese law. Assignment of Receivables Article 23 The effect of an assignment of a receivable in relation to a debtor and other third parties shall be governed by the law applicable to the receivable which is to be assigned. Section 5 - Family Relationships Requirements for Formation of Marriage Article 24 (1) The requirements for the formation of a marriage shall be governed by the national law of each spouse respectively. (2) The formalities of marriage shall be governed by the law of the place of the ceremony. (3) Notwithstanding the preceding paragraph, formalities that satisfy the requirements of either of the spouses’ national law shall be effective, unless the marriage is celebrated in Japan by the parties, at least one of whom is a Japanese national. Effect of Marriage Article 25 The effect of a marriage shall be governed by the spouses’ national law, if the national law of each of the spouses is the same. If that is not the case but where the law of the spouses’ place of habitual residence is the same, the effect shall be governed by the law of that place. If none of these cases apply, the effect shall be governed by the law of the place with which the spouses are most closely connected. Matrimonial Property Regime and Protection of Domestic Transactions Article 26 (1) The preceding Article shall apply mutatis mutandis to the matrimonial property regime. (2) Notwithstanding the preceding paragraph, the regime shall be governed by the law that the spouses choose from among the following laws, where such choice is made in writing, signed and dated by them. In this case, the choice shall come into effect ex nunc: (i) The law of the country of either spouse’s nationality; (ii) The law of the place of either spouse’s habitual residence; or (iii) In respect of the matrimonial regime regarding immovables, the law of the place where such immovables are located. (3) A matrimonial property regime governed by a foreign law may not be asserted against third parties without knowledge insofar as it concerns juristic acts performed in Japan or property situated in Japan. The matrimonial property regime in such cases as against third parties shall be governed by Japanese law. (4) Notwithstanding the preceding paragraph, a matrimonial property contract concluded in compliance with a foreign law applicable pursuant to paragraphs 1 or 2 shall be binding on any third parties insofar as the contract is registered in Japan. Divorce Article 27 Article 25 shall apply mutatis mutandis to divorce. However, a divorce shall be governed by Japanese law if one of the spouses is a Japanese national and has his/her habitual residence in Japan. Determination of Parentage of Child Born in Wedlock Article 28 (1) A child shall be born in wedlock if he/she is considered as such under the national law of one of the spouses at the time of the child's birth. (2) If the husband dies before the child's birth, the national law of the husband at the time of his death shall be deemed his national law in reference to the preceding paragraph. Determination of Parentage of Child Born Out of Wedlock Article 29 (1) The parentage of a child born out of wedlock with regard to his/her father shall be governed by the national law of the father at the time of the child's birth, and with regard to his/her mother, by the national law of the mother at that time. Concerning the establishment of parentage by acknowledgment, if the national law of the child at the time of acknowledgment requires the approval or consent of the child or a third party as a condition of acknowledgment, this requirement shall also be satisfied. (2) With regard to establishment of parentage of a child born out of wedlock by acknowledgment, it shall be recognized if it is provided for under either the national law of the acknowledging person or of the child both at the time of the acknowledgment, irrespective of the result of application of the governing law pursuant to the first sentence of the preceding paragraph. In the case where the national law of the acknowledging person shall apply, the second sentence of the preceding paragraph shall apply mutatis mutandis. (3) If the father dies before the child's birth, the national law of the father at the time of his death shall be deemed the national law of the father as referred to in paragraph 1. If any of the persons referred to in the preceding paragraph dies before the acknowledgment, the national law of that person at the time of his/her death shall be deemed his/her national law in reference to that paragraph. Legitimation Article 30 (1) A child shall acquire the status of a child born in wedlock, if the child is legitimated according to the national law of the father, the mother or the child at the time when the requirements for legitimation are completed, (2) If a person referred to in the preceding paragraph dies before the requirements for legitimation are completed, his/her national law at the time of his/her death shall be deemed his/her national law in reference to that paragraph. Adoption Article 31 (1) Adoption shall be governed by the national law of the adoptive parent at the time of the adoption. If the national law of the adopted child requires for adoption the approval or consent of the adopted child or a third party, or the permission or any other disposition by a public authority, such requirements shall also be satisfied. (2) Termination of relationships as relatives between an adopted child and his/her blood relatives and dissolution of the adoptive relationship shall be governed by the law determined under the first sentence of the preceding paragraph. Legal Relationship Between Parents and Child Article 32 The legal relationship between parents and their child shall be governed by the national law of the child if it is the same as the national law of one of the parents (if one of the parents is dead or unknown, as the national law of the other parent). In other cases, it shall be governed by the law of the child's habitual residence. Other Relationships Between Relatives Etc. Article 33 In addition to what is provided for in Articles 24 to 32, relationships between relatives as well as rights and duties arising therefrom shall be governed by the national law of the party concerned. Formalities of a Juristic Act Involving Family Relationships Article 34 (1) The formalities of a juristic act involving family relationships provided for in Articles 25 to 33 shall be governed by the law applicable to the formation of the act. (2) Notwithstanding the preceding paragraph, such juristic act shall be formally valid if it conforms to the law of the place where the act was made. Guardianship Etc. Article 35 (1) Guardianship, curatorship or assistance (hereinafter referred to as “guardianship etc.”) shall be governed by the national law of the ward or person under curatorship or assistance (referred to as “ward etc.” in the following paragraph). (2) Notwithstanding the preceding paragraph, if a foreign national is a ward etc., an order to appoint a guardian, curator or assistant, or other orders concerning guardianship etc. shall be governed by Japanese law, if - (i) according to the national law of the foreign national, the requirements for guardianship etc. are satisfied but no one undertakes the duties of guardianship etc. in Japan, or (ii) a court has made in Japan an order for commencement of guardianship etc. of the foreign national. Section 6 - Succession Succession Articles 36 Succession shall be governed by the national law of the decedent. Wills Article 37 (1) The formation and effect of a will shall be governed by the national law of the testator at the time of the creation of the will. (2) Revocation of a will shall be governed by the national law of the testator at the time of the revocation. Section 7 - Auxiliary Provisions National Law Article 38 (1) If a person has two or more nationalities, the law of the state where he/she has his/her habitual residence shall be his/her national law insofar as his/her nationality is from that state. If he/she does not have his/her habitual residence in any of the states whose nationality he/she has, the law of the state with which he/she is most closely connected shall be deemed to be his/her national law. However, where one of his/her nationalities is Japanese, Japanese law shall be deemed to be his/her national law. (2) In the case where the national law of a person shall apply but the person has no nationality, the law of his/her habitual residence shall apply. However, this shall not apply to the case where Article 25 (including the cases where it is applied mutatis mutandis pursuant to Article 26, paragraph 1 or Article 27) or Article 32 applies. (3) Where a person is a national of a state where different systems of law exist in its respective regions, the law determined in accordance with the rules of that state (if there are no such rules, the law of the region with which he/she is most closely connected) shall be deemed to be his/her national law. Law of Habitual Residence Article 39 Where the law of a person’s habitual residence shall apply but his/her habitual residence cannot be identified, the law of his/her residence shall apply. However, this shall not apply to the case where Article 25 (including the cases where it is applied mutatis mutandis pursuant to Article 26, paragraph 1 or Article 27) or Article 32 applies. Law of States or Places Where Different Systems of Law Apply to a Respective Group of People Article 40 (1) Where a person is a national of a state where different systems of law apply to a respective group of people, the law determined in accordance with the rules of that state (if there are no such rules, the law with which he/she is the most closely connected) shall be deemed to be his/her national law. (2) The preceding paragraph shall apply mutatis mutandis where the law of a person's habitual residence is to apply in accordance with Article 25 (including the cases where it is applied mutatis mutandis pursuant to Article 26, paragraph 1 or Article 27), Article 26, paragraph 2 (ii), Article 32 or Article 38, paragraph 2, and different systems of law apply to a respective group of people in the place of his/her habitual residence. Also, it shall apply mutatis mutandis where the law of the place with which spouses are most closely connected is to apply and different systems of law apply to a respective group of people in that place. Renvoi Article 41 Where a person’s national law applies and the rules of that law require that Japanese law should apply, then Japanese law shall apply. However, this shall not apply to a case where the person’s national law is to apply in accordance with Article 25 (including the cases where it is applied mutatis mutandis pursuant to Article 26, paragraph 1 or Article 27) or Article 32. Public Policy (Ordre public) Article 42 Where a foreign law is to apply but its application would be contrary to public policy (ordre public), it shall not apply. Exclusion from Application Article 43 (1) The provisions of this Chapter, except for the main clause of Article 39, shall not apply to maintenance obligations arising from marriage, parentage, or any other family relationships. (2) The provisions of this Chapter, except for the main clause of Article 38, paragraph 2, the main clause of Article 39, as well as Article 40 in its entirety, shall not apply to the formalities of wills. |
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