CHAPTER XVII.

THE JAPANESE CIVIL CODE.

The East and the West, the Past and the Present, meet in the Japanese Civil Code, which became law in January, 1893.

It is the first codification of private law that Japan ever had in her long history. Up to that time the basis of Japanese laws and institutions was Chinese moral philosophy, ancestor worship and the old feudal system.

The Criminal Code of Japan (_Shin-ritsu-koryo_), enacted in 1870, was the last legal code founded on Chinese philosophy, customs and traditions, and the Revised Criminal Code (_Kaitei-Ritsurei_) is the first group of Japanese laws based upon European jurisprudence and civilization.

Three periods may be marked in the history of Japan with regard to the legal aspect of the marriage relation. The first was the ancient Japanese period, the second the Chinese period, and the third, the present, that of modern Japan.

The Chinese doctrine of the perpetual obedience of woman to man is expressed in the "Three Obediences": Obedience, while yet unmarried, to the father; obedience, when married, to the husband; obedience, when widowed, to the son.

Buddhism regards woman as an unclean creature, a temptation, and an obstacle to peace and holiness.

The great revolution in the legal position of woman in Japan which the new Civil Code has brought about is as impressive as all the other changes for the better which have of late years taken place in the land of the Cherry Blossoms. The Chinese and Buddhistic theories concerning womankind have but little influence on modern Japanese law.

Under the Civil Code husband and wife are now on an equal footing, except when consideration for their common domestic life requires some modifications.

Persons who are about to marry are permitted to make any contract with regard to their individual property, and a woman is capable of owning and controlling her separate property all during marriage.

When Japanese law belonged to the Chinese system of jurisprudence there were seven causes for divorce, namely:

1. Sterility.

2. Lewdness.

3. Disobedience to father-in-law or mother-in-law.

4. Loquacity.

5. Larceny.

6. Jealousy.

7. Bad disease.

As under the Mosaic law, these causes were invented only for the advantage of the husband. A wife had no right even to desire a divorce from her husband.

An examination of the seven causes shows that a woman could be divorced practically at her husband's pleasure. The New Civil Code has changed all this. A wife has equal rights with her husband to the benefits of the divorce law.

The New Civil Code of Japan is divided into five books, but it is only with Book IV., which deals with the "Family," that we are at present concerned.

A summary of the present marriage and divorce law of Japan, as translated from Book IV., follows:

REQUISITES OF MARRIAGE.--A man cannot marry before the completion of his seventeenth year or a woman before the completion of her fifteenth year.

A person already married cannot contract another marriage.

A woman cannot contract another marriage within six months from the dissolution or cancellation of her former marriage.

If a woman is pregnant at the time of the dissolution or cancellation of her former marriage this provision does not apply after the day of her delivery.

A person who is judicially divorced or punished because of adultery cannot contract a marriage with the other party to the adultery.

Lineal relatives by blood or collateral relatives by blood up to the third degree cannot intermarry; but this does not apply as between an adopted child and his collateral relatives by adoption.

Lineal relatives by affinity cannot intermarry. This applies even after the relationship by affinity has ceased because of marriage or divorce.

An adopted child, his or her husband or wife, his descendants and the husband or wife of one of his descendants on the one hand, and the adopter and his ascendants on the other hand, cannot intermarry, even after the relationship has ceased.

For contracting a marriage a child must have the consent of his parents, being in the same house. This, however, does not apply if the man has completed his thirtieth year or the woman her twenty-fifth year.

If one of the parents is unknown, is dead, has quit the house, or is unable to express consent, the consent of the other parent is sufficient.

If both parents are unknown, dead, have quit the house, or are unable to express consent, a minor must obtain the consent of his guardian and of the family council.

This by way of parenthesis: The members of a house comprise such relatives of the head of the house as are in his house and the husbands and wives of such relatives.

The head and the members of a house bear the name of the house.

The head of the house is bound to support its members. A marriage takes effect upon its notification to the registrar. A wedding ceremony is not legally essential.

The notification of marriage must be made by the parties concerned and at least two witnesses of full age, either orally or by a signed document.

If a Japanese couple in a foreign country contract a marriage between themselves they may give the notification of their marriage to the Japanese minister or consul stationed in such country.

EFFECT OF MARRIAGE.--By marriage the wife enters the house of the husband. A man who marries a woman who is head of a house, or a _mukoyoshi_, enters the house of his wife.

A _mukoyoshi_ is a person who is adopted by another and at the same time marries the daughter of the house who would be the heir to the headship of the house.

A wife is bound to live with her husband. A husband must permit his wife to live with him.

A husband and wife are bound to support each other. When the wife is a minor the husband, if of full age, exercises the functions of a guardian.

A contract made between husband and wife may be cancelled at any time during the marriage by either party, but without prejudice to the rights of third persons.

DIVORCE BY MUTUAL CONSENT.--The husband and wife may effect a divorce by mutual consent. No court procedure is necessary. Just as in giving notice of marriage, the parties consenting to be divorced give notice of such agreement to the registrar, and they are _ipso facto_ divorced.

A person who has not reached the age of twenty-five years, in order to effect a divorce by mutual consent, must obtain the consent of the person or persons whose consent was necessary for the marriage.

If a husband and wife have effected a divorce by mutual consent without arranging as to whom the custody of the children shall belong, it belongs to the husband.

JUDICIAL DIVORCE.--A husband or wife, as the case may be, can bring an action for divorce for the following causes:

1. If the other party contracts a second marriage.

2. If the wife commits adultery.

3. If the husband is sentenced to punishment for an offence specified in Article 348 _et seq._ of the Criminal Code; such offences involving criminal carnal sexuality.

4. If the other party is sentenced to punishment for an offence greater than misdemeanor, involving forgery, bribery, gross sexual immorality, theft, robbery, obtaining property by false pretences, embezzlement of goods deposited, receiving knowingly stolen goods, or any of the offences specified in Articles 175 and 260 of the Criminal Code, or is sentenced to a major imprisonment or more.

5. If one party is so ill-treated or grossly insulted by the other that it makes further living together of the spouses impracticable.

6. If one party is deserted by the other.

7. If one party is ill-treated or grossly insulted by an ascendant of the other party.

8. If an ascendant of one party is ill-treated or grossly insulted by the other party.

9. If it has been uncertain for three years or more whether or not the other party is alive or dead.

10. In the case of the adoption of a _mukoyoshi_, if the adoption is dissolved, or in the case of a marriage of an adopted son with a daughter of the house, if the adoption is dissolved or cancelled.