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Laws of Japan |
This English translation of the Civil Code has been prepared up to the revisions of Act No. 78 of
2006 Effective June 21, 2006
in compliance with the Standard Bilingual Dictionary March 2007
edition .
This is an unofficial translation. Only the original
Japanese texts of laws and regulations have
legal effect, and the translations are to be used solely as reference material to aid
in the
understanding of Japanese laws and regulations.
The Government of Japan shall not be responsible for the accuracy, reliability
or currency of the
legislative material provided in this Website, or for any consequence resulting from use of the
information
in this Website. For all purposes of interpreting and applying law to any legal issue or
dispute, users should consult the original
Japanese texts published in the Official Gazette.
Civil Code Act No. 89 of 1896
Part IV Relatives
Chapter
1 General Provisions
Article 725 Range of Relatives
The following persons shall be relatives
i a relative by blood within
the sixth degree
ii A spouse; and
iii a relative by affinity within the third degree.
Article 726 Determining Degree
of kinship
1 The degree of kinship between two relatives shall be determined by counting the
number of generations between
them.
2 The degree of kinship between collateral relatives shall be determined by
counting the number of generations between
a person or his/her spouse up to a
common ancestor and back down to the other person.
Article 727 Relationship through Adoption
From the time of adoption, the relationship between an adopted child and an
adoptive parent and his/her relative by blood
shall be deemed to be the same as
that between relatives by blood.
Article 728 End of Relationship by Affinity by Divorce
etc.
-1-
1 The relationship between relatives by affinity shall come to an
end by divorce.
2 The same shall apply in the case where a spouse has died and the surviving
spouse indicates an intention to
end the relationship between relatives by affinity.
Article 729 End of Adoptive Relation by Dissolution
The relationship of an
adopted child, his/her spouse, any of his/her lineal
descendants and their spouses with an adoptive parent and his/her spouse shall
come
to an end by dissolution of adoptive relation.
Article 730 Mutual Help between Relatives
Lineal relatives by blood and relatives
who live together shall help one another.
Chapter 2 Marriage
Section 1 Formation of Marriage
Subsection
1 Requirements for Marriage
Article 731 Marriageable Age
A man who has attained 18 years of age, and a woman who has attained
16 years
of age may enter into marriage.
Article 732 Prohibition of Bigamy
A person who has a spouse shall not enter into another
marriage.
Article 733 Period of Prohibition of Remarriage
1 A woman may not remarry unless six months have passed since the
day of
dissolution or rescission of her previous marriage.
2 In the case where a woman had conceived a child before the cancellation
or
dissolution of her previous marriage, the provision of the preceding paragraph shall
not apply.
Article 734 Prohibition
of Marriage between Close Relatives
1 Neither lineal relatives by blood nor collateral relatives by blood within the third
degree
of kinship may marry; provided that this shall not apply between an
adopted child and his/her collateral relatives by blood through
adoption.
2 The preceding paragraph shall also apply after the termination of a family
relationship pursuant to the provision
of Article 817-9.
Article 735 Prohibition of Marriage between Lineal Relatives by Affinity
-2-
Lineal relatives by affinity may not marry. This shall also apply after the
termination of a relationship
by affinity pursuant to the provisions of Article 728 or
Article 817-9.
Article 736 Prohibition of Marriage between Adoptive Parent and Child etc.
Even after the termination of a family relationship pursuant to the provision of
Article 729, an adopted child or spouse of adopted
child, or a lineal descendant or
spouse of a lineal descendant, may not marry an adoptive parent or his/her lineal
ascendant.
Article
737 Parental Consent for Marriage of Minor
1 A minor shall obtain the consent of both parents to marry.
2 If one parent does
not consent, the consent of the other parent is sufficient.
This shall also apply if one parent is unknown, has died, or is unable
to indicate
his/her intent.
Article 738 Marriage of Adult Ward
An adult ward does not require the consent of his/her guardian
of adult to marry.
Article 739 Notification of Marriage
1 Marriage shall take effect upon notification pursuant to the Family
Registration
Act Act No. 224 of 1947 .
2 The notification in the preceding paragraph shall be given by document with the
signatures
of both parties and not less than two adult witnesses, or given orally by
these persons.
Article 740 Acceptance of Notification
of Marriage
Notification of marriage may not be accepted unless it has been found not to
violate the provisions of Articles 731
to 737 inclusive, the provision of paragraph 2
of the preceding Article, or the provisions of any other laws and regulations.
Article 741 Marriage between Japanese Nationals in Foreign Country
Two Japanese nationals in a foreign country who intend to marry
may give
notification to the Japanese ambassador a minister of legation or consul stationed in
that country. In this case, the provisions
of the preceding two Articles shall apply
mutatis mutandis.
Subsection 2 Void and Annulled Marriages
Article 742
Grounds on Which Marriage is Void
-3-
Marriage shall be void only in the following
cases:
i if one of the parties has no intention to marry due to mistaken identity or
other cause; or
ii
if the parties do not lodge notification of marriage; provided however, that the
effect of marriage shall not be prevented
merely because notification was not
given in the form prescribed in paragraph 2 of Article 739.
Article 743 Rescission
of Marriage
Marriage may not be annulled, unless pursuant to the provisions of Articles 744 to
747 inclusive.
Article 744 Rescission
of Unlawful Marriage
1 Either of the parties, their relatives, or a public prosecutor may make a claim to
the family court
to rescind a marriage if it violates the provisions of Articles 731 to
736 inclusive; provided, however, that a public prosecutor
may not claim this after
the death of one of the parties.
2 A spouse or previous spouse of a party to a marriage that violates
the provisions
of Article 732 or Article 733 may claim for rescission of marriage.
Article 745 rescission of Marriage in Violation
of Marriageable Age
1 When a person of non-marriageable age reaches marriageable age, a claim for
rescission of a marriage
that violates the provisions of Article 731 may not be
made.
2 A person of non-marriageable age may claim rescission of
marriage within a
further three months after he/she has reached marriageable age; provided that this
shall not apply if he/she
has ratified the marriage after reaching marriageable age.
Article 746 Rescission of Marriage Formed within the Period of
Prohibition of
Remarriage
A claim for rescission may not be made for a marriage that violates the provisions
of Article 733 if
six months have passed from the day on which the previous marriage
was cancelled or rescinded, or if a woman has conceived a child
after remarriage.
Article 747 Rescission of Marriage by Fraud or Duress
1 A person who has married due to fraud or duress
may make a claim for
rescission of marriage to the family court.
2 The claim for rescission of marriage pursuant to the preceding paragraph lapses
upon the passage of three months after the party has discovered the fraud or
escaped the duress, or upon ratification.
-4-
Article 748 Effect of Rescission of Marriage
1 Rescission of marriage shall not
have retroactive effect.
2 A party who did not know of the cause of rescission at the time of marriage must
return property
obtained by the marriage to the extent of the gain he/she actually
receives.
3 A party who was not aware of the cause of rescission
at the time of marriage
must return all of the gain obtained by the marriage. In this case, the party is
liable to compensate
an adverse party without knowledge for damages.
Article 749 Application Mutatis Mutandis of Divorce Provisions
The provisions
of paragraph 1 of Article 728, Articles 766 to 769 inclusive, the
proviso to paragraph 1 of Article 790, and paragraphs
2,3,5 and 6 of
Article 819 shall apply mutatis mutandis to the rescission of marriage.
Section 2 Effect
of Marriage
Article 750 Surname of Husband and Wife
A husband and wife shall adopt the surname of the husband or wife in accordance
with that which is decided at the time of marriage.
Article 751 Surviving Spouse Reverting to Previous Surname etc.
1 If a husband
or wife dies, the surviving spouse may revert to using the surname
he/she used before marriage.
2 The provisions of Article
769 shall apply mutatis mutandis to the preceding
paragraph and to the case referred to in paragraph 2 of Article 728.
Article
752 Duty to Live Together, Cooperate, and Provide Mutual Assistance
A husband and wife shall live together and provide mutual cooperation
and
assistance.
Article 753 Constructive Adult by Marriage
If a minor enters into marriage, he/she shall be deemed to have attained
majority.
Article 754 Right to Rescind Contract between Husband and Wife
Either husband or wife may at any time during marriage
rescind a contract
between husband and wife; provided, however, that this may not harm the rights of a
third party.
Section
3 Marital Property
-5-
Subsection 1 General Provisions
Article 755 Marital
Property of Husband and Wife
The property rights and duties of a husband and wife shall be prescribed by the
following subsections,
unless they entered into a contract setting forth otherwise,
regarding their property before giving notification of the marriage.
Article 756 Requirements of Perfection of Contract on Property of Husband and
Wife
If a husband and wife have entered into
a contract that departs from the statutory
property system, the contract may not be asserted against the successor in title of the
husband or wife, or a third party unless registered prior to notification of marriage.
Article 757
Deleted
Article 758 Limitations
on Altering Property Rights of Husband and Wife etc.
1 The property rights of a husband and wife may not be altered after notification
of marriage.
2 In the case where one party to a marriage administers property and that
property is imperiled by misadministration,
the other party may make a claim to
the family court for his own administration over that property.
3 A claim may be made for
division of property held in co-ownership together with
the claim referred to in the preceding paragraph.
Article 759 Requirements
of Perfection of Change of the Administrator of Property
or Division of Property in Co-ownership
If an administrator of property
has been changed, or property held in co-ownership
has been divided pursuant to the provisions of the preceding Article or as a result
of
the contract referred to in Article 755, this may not be asserted against the successor
in title of the husband or wife, or a third party unless it is registered.
Subsection 2 Statutory Marital Property System
Article 760 Sharing of Living
Expenses
A husband and wife shall share the expenses that arise from the marriage taking
into account their property, income, and
all other circumstances.
Article 761 Joint and Several Liability for Debts incurred for Household Necessities
If one party to
a marriage engages in a juristic act with a third party regarding
-6-
everyday household
matters, the other party shall be jointly and severally liable for
debts that arise from that act; provided that this shall not apply
if prior notice is
given to the third party to the effect that the other party will not assume such
liability.
Article 762 Ownership
of Property between Husband and Wife
1 Property owned by one party before marriage and property obtained in the name
of that
party during marriage shall be separate property property owned
singularly by one party to a marriage .
2 Property
that does not clearly belong to either husband or wife shall be
presumed to be held in co-ownership.
Section 4 Divorce
Subsection 1 Divorce by Agreement
Article 763 Divorce by Agreement
A husband and wife may divorce by agreement.
Article 764 Application Mutatis Mutandis of Marriage Provisions
The provisions of Articles 738, 739, and 747 shall apply mutatis
mutandis to
divorce by agreement.
Article 765 Acceptance of Notification of Divorce
1 Notification of divorce may not be accepted
unless the divorce has been found not
to violate the provision of paragraph 2 of Article 739 applied mutatis mutandis
to
the preceding Article, paragraph 1 of Article 819, or the provisions of any
other laws and regulations.
2 If notification
of divorce has been accepted despite the violation of the provisions
of the preceding paragraph, the effect of the divorce shall
not be prevented because
of this violation.
Article 766 Determination of Matters regarding Custody of Child after Divorce etc.
1 If parents divorce by agreement, the matter of who will have custody over a child
and any other necessary matters regarding
custody shall be determined by that
agreement. If agreement has not been made, or cannot be made, this shall be
determined
by the family court.
2 If the family court finds it necessary for the child's interests, it may change who
will take custody
over the child and order any other proper disposition regarding
custody.
-7-
3
The rights and duties of parents beyond the scope of custody may not be altered
by the provisions of the preceding two paragraphs.
Article 767 Reversion to Previous Surname by Divorce
1 The surname of a husband or wife who has taken a new name by marriage
shall
revert to the surname used before marriage by divorce by agreement.
2 A husband or wife whose surname has reverted
to the surname before marriage
pursuant to the provision of the preceding paragraph may use the surname he/she
used at the time
of divorce by notification pursuant to the Family Registration Act
within three months of the time of divorce.
Article 768 Distribution
of Property
1 One party to a divorce by agreement may claim a distribution of property from
the other party.
2 If
the parties do not, or cannot, settle on agreement with regard to the
distribution of property pursuant to the provision of the
preceding paragraph,
either party may make a claim to the family court for a disposition in lieu of
agreement; provided that
this claim for distribution of property shall be
extinguished at the expiration of two years from the day of divorce.
3
In the case referred to in the preceding paragraph, the family court shall
determine whether to make a distribution, and the amount
and method of that
distribution, taking into account the amount of property obtained through the
cooperation of both parties and all other circumstances.
Article 769 Assumption of Rights upon Reversion to Previous Surname by Divorce
1 If a husband or wife who has taken a new
surname by marriage divorces by
agreement after inheriting the rights contained in paragraph 1 of Article 897,
the
matter of who will be the successor of those rights shall be determined by
agreement of the parties and any other interested persons.
2 If the agreement of the preceding paragraph is not, or cannot be, made, the
family court shall determine who will be the
successor of the rights in that
paragraph.
Subsection 2 Judicial Divorce
Article 770 Judicial Divorce
1
Only in the cases stated in the following items may either husband or wife file a
suit for divorce:
i if a spouse has
committed an act of unchastity;
ii if abandoned by a spouse in bad faith;
-8-
iii if it is not clear whether a spouse is dead or alive for not less than three
years;
iv if a spouse
is suffering from severe mental illness and there is no prospect of
recovery; or
v if there is any other grave cause
making it difficult to continue the marriage.
2 A court may dismiss a suit for divorce if it finds continuing the marriage
reasonable taking into account all circumstances, even in the case where there is a
cause listed in items i to iv inclusive
of the preceding paragraph.
Article 771 Application Mutatis Mutandis of Divorce by Agreement Provisions
The provisions of Articles
766 to 769 inclusive shall apply mutatis mutandis to the
case of judicial divorce.
Chapter 3 Parent and Child
Section 1 Natural Children
Article 772 Presumption of Child in Wedlock
1 A child conceived by a wife during marriage
shall be presumed to be a child of
her husband.
2 A child born after 200 days from the formation of marriage or within 300
days of
the day of the dissolution or rescission of marriage shall be presumed to have been
conceived during marriage.
Article
773 Determination of Paternity by Court
In the case where a woman gives birth in violation of the provisions of paragraph
1
of Article 733, if the paternity of the child cannot be determined pursuant to the
provisions of the preceding Article, the court
shall determine paternity of the child.
Article 774 Rebutting Presumption of Legitimacy
Under the circumstances described in
Article 772, a husband may rebut the
presumption of the child in wedlock.
Article 775 Action to Rebut Presumption of Legitimacy
The father's right to rebut the presumption of child in wedlock under Article 774
shall be exercised by an action of denial of
child in wedlock against the child or a
mother who has parental authority. If there is no mother who has parental
authority,
the family court shall appoint a special representative.
Article 776 Recognition of Legitimacy
-9-
If a husband recognizes that a child is his child in wedlock after the birth of the
child, he shall lose
his right to rebut the presumption of legitimacy.
Article 777 Limitation upon Action of Rebutting Presumption
A husband shall
bring an action to rebut the presumption of the child in wedlock
within one year of knowing of the child's birth.
Article 778
If the husband is an adult ward, the period of Article 777 shall begin from the time
the husband knew of the child's birth after
the rescission of an order for
commencement of guardianship.
Article 779 Affiliation
A father or a mother may affiliate his/her
child out of wedlock.
Article 780 Competency for Affiliation
A father or a mother does not require the consent of a legal representative
for
affiliation, even if he/she is a minor or an adult ward.
Article 781 Method of Affiliation
1 Affiliation shall be made through notification pursuant to the
provisions of the
Family Registration Act.
2 Affiliation may also be made by will.
Article 782 Affiliation of Adult Child
A father or mother may not affiliate his/her adult child without that adult child's
consent.
Article 783 Affiliation of Unborn
Child or Child who has Died
1 A father may also affiliate his unborn child. In this case, the mother's consent
shall be obtained.
2 If a child has died, a father or mother may still give affiliation, limited to the
case where that child had a lineal descendant.
In this case, if that lineal
descendant is an adult, his/her consent shall be obtained.
Article 784 Effect of Affiliation
Affiliation
has retroactive effect from the time of birth; provided that this shall not
prejudice a right already acquired by a third party.
Article 785 Prohibition of Rescission of Affiliation
- 10 -
A father or a mother
who has given affiliation may not rescind that affiliation.
Article 786 Assertion of Opposing Facts against Affiliation
A child
or any other interested person may assert opposing facts against an
affiliation.
Article 787 Action for Affiliation
A child,
his/her lineal descendant, or the legal representative of either, may bring
an action for affiliation; provided that this shall not
apply if three years have passed
since the day of the death of the parent.
Article 788 Determination of Matters with Regard
to Custody of Child after
Affiliation etc.
In the case where a father gives affiliation, the provisions of Article 766 shall apply
mutatis mutandis.
Article 789 Legitimation
1 By the marriage of his/her mother and father, a child affiliated by his/her father
shall acquire the status of a child in wedlock.
2 A child affiliated by his/her parents while they are married shall acquire
the
status of a child in wedlock from the time of that affiliation.
3 The provisions of the preceding two paragraphs shall apply
mutatis mutandis in
the case where a child has already died.
Article 790 Child's Surname
1 A child in wedlock shall take the
surname of his/her parents; provided that if the
parents divorce before the child is born, the child shall take the surname of
his/her
parents at the time of divorce.
2 A child out of wedlock shall take the surname of his/her mother.
Article 791 Change
of Child's Surname
1 In the case where a child's surname differs from that of his/her father or mother,
he/she may take the
name of his/her father or mother by notification pursuant to
the provisions of the Family Registration Act after having obtained
the family
court's permission.
2 In the case where a child's surname differs from that of his/her parents due to
his/her father
or mother taking a new surname, he/she may take the name of
his/her parents, if they are married, without obtaining the permission
referred to
in the preceding paragraph by notification pursuant to the provisions of the Family
Registration Act.
- 11 -
3 If a child has not attained 15 years of age, his/her legal representative may
perform the acts referred to in the preceding two paragraphs on his/her behalf.
4 A minor who has taken a new surname pursuant
to the provisions of the
preceding three paragraphs may revert to using his/her previous surname within
one year of attaining
majority by notification pursuant to the provisions of the
Family Registration Act.
Section 2 Adoption
Subsection 1 Requirements for Adoption
Article 792 Age of Adoptive Parent
A person who has attained the age of majority may adopt
another as his/her child.
Article 793 Prohibition of Adopting Ascendant or Person of Greater Age
Neither an ascendant nor a person
of greater age may be adopted.
Article 794 Adoption of Ward by Guardian
Where a guardian adopts a ward here and below, referring to a minor ward and
an adult ward ,
he/she shall obtain the permission of the family court. The same
shall apply in the case where the guardianship has ceased
but the account of
administration of the property has not been settled.
Article 795 Adoption of Minor by Married Person
A married
person shall adopt a minor only jointly with the spouse; provided,
however, that this shall not apply in cases where he/she adopts
a child in wedlock of
his/her spouse or his/her spouse is incapable of indicating her/his intention.
Article 796 Adoption by Married
Person
A married person shall only adopt or be adopted by another with the consent of
his/her spouse,; provided, however, that
this shall not apply in the case he/she adopts
or is adopted with his/her spouse jointly, or his/her spouse is incapable of indicating
her/his intention.
Article 797 Adoption of Person under 15 years of age
1 If a person to be adopted has not attained 15 years
of age, his/her legal
representative may give his/her consent to the adoption of that person on behalf of
that person.
2 Where
a person to be adopted is cared for by one of his/her parents and that
parent does not have parental authority in relation to the
person but cares for the
- 12 -
person in accordance with Article 766, a legal representative
shall obtain the
consent of that parent before giving the consent referred to in the preceding
paragraph.
Article 798 Adoption
of Minor
Where a person to be adopted is a minor, the permission of the family court shall
be obtained; provided that this shall
not apply in the cases where the person to be
adopted is a lineal descendant of either the adoptive parent or the adoptive parent's
spouse.
Article 799 Application Mutatis Mutandis of Marriage Provisions
The provisions of Article 738 and Article 739 shall apply
mutatis mutandis to
adoption.
Article 800 Acceptance of Notification of Adoption
No notification of adoption shall be accepted
until it has been found that the
adoption does not violate any of the provisions of Articles 792 to 799 inclusive or the
provisions
of any other laws and regulations.
Article 801 Formalities for Adoption between Japanese Nationals in Foreign
Country
If
a Japanese national in a foreign country intends to adopt, or to be adopted by ,
another Japanese national in that country, notification
of adoption may be made to
the Japanese ambassador, minister or consul acting in that country. In this case,
the provisions
of Article 739 applied mutatis mutandis to Article 799 and the
provision of the preceding Article shall apply mutatis mutandis.
Subsection 2 Nullity and Rescission of Adoption
Article 802 Nullity of Adoption
Adoption shall be void only on
the following grounds:
i if there is no agreement to the adoption between the parties, as a result of
mistaken identity
or otherwise; or
ii if the parties do not give notification of adoption; provided that the effect of
adoption shall
not be prevented merely because notification was not in the
formality prescribed in paragraph 2 of Article 739 applied
mutatis mutandis
to Article 799.
Article 803 Rescission of Adoption
Adoption shall only be annulled pursuant to the provisions
of Articles 804 to 808
- 13 -
inclusive.
Article 804 Rescission of Adoption Where
Adoptive Parent Is Minor
An adoptive parent or his/her legal representative may petition the family court for
rescission of an
adoption that violates the provision of Article 792; provided that this
shall not apply in the cases where six months have passed
from the time the
adoptive parent attains the age of majority or he/she has ratified the adoption.
Article 805 Rescission of
Adoption Where Adoptive Parent is Ascendant or of
Greater Age
Either of the parties to an adoption or any relative of them may apply to the family
court for
rescission of an adoption that violates the provision of Article 793.
Article 806 Rescission of Adoption between Guardian and Ward
not Assented to by
the Family Court
1 An adopted child or any natural relative of the child may apply to the family
court for
rescission of an adoption that violates the provisions of Article 794;
provided, however, that this shall not apply after the account
of administration has
been settled if the adopted child ratifies the adoption or if six months have passed
since settlement.
2 No ratification in the proviso to the preceding paragraph shall take effect, unless
the adopted child ratified the adoption
after he/she had attained the age of
majority or had recovered legal capacity to act.
3 Where the account has been settled but
the adopted child has not attained the
age of majority or has not recovered legal capacity to act, the period referred to in
the proviso to paragraph 1 shall be calculated from the time the adopted child
attains the age of majority or recovers legal
capacity to act.
Article 806-2 Rescission of Adoption Without Spousal Consent etc.
1 A person who does not give his/her consent
to an adoption may apply to the
family court for rescission of an adoption that violates the provisions of Article 796;
provided
that this shall not apply in the cases where six months have passed from
the time the person had knowledge of the adoption or he/she
ratified the adoption.
2 A person who gave the consent referred to in Article 796 by fraud or duress may
apply to the family
court for rescission of the adoption; provided that this shall not
apply in cases where six months have passed from the time the
person had
knowledge of fraud or escaped from duress, or the person ratified the adoption.
Article 806-3 Rescission of Adoption
made without Consent of Person Who Cares for
Child etc.
- 14 -
1 A person who
does not give his/her consent to the adoption may apply to the
family court for rescission of an adoption that violates the provision
of paragraph
2 of Article 797; provided that this shall not apply if the person has ratified the
adoption, or if, after
the adopted child has reached 15 years of age, six months
have passed or the child has ratified the adoption.
2 The provisions
of paragraph 2 of the preceding Article shall apply mutatis
mutandis to the consent referred to in paragraph 2
of Article 797 made due to
fraud or duress.
Article 807 Rescission of Adoption of Minor not Assented to by Family Court
An
adopted child, any natural relative of the child, or a person who gave his/her
consent to the adoption on the adopted child's behalf
may apply to the family court
for rescission of an adoption that violates the provisions of Article 798; provided,
however, that
this shall not apply if, after the adopted child attains majority, six
months have passed or he/she has ratified the adoption.
Article 808 Application Mutatis Mutandis of Provisions regarding rescission of
Marriage etc.
1 The provisions of Article
747 and Article 748 shall apply mutatis mutandis to
adoption. In this case, 'three months' in paragraph 2 of Article
747 shall be
read as 'six months'.
2 The provisions of Article 769 and Article 816 shall apply mutatis mutandis to
the
rescission of adoption.
Subsection 3 Effect of Adoption
Article 809 Acquisition of Status of Child in wedlock
An adopted child acquires the status of a child in wedlock of his/her adoptive
parent s from the time of adoption.
Article
810 Surname of Adopted Child
An adopted child shall take the surname of his/her adoptive parent s ; provided
that this shall not
apply to an adopted child who has changed his/her surname by
marriage and continues to use the surname determined at the time of marriage.
Subsection 4 Dissolution
of Adoptive Relations
Article 811 Dissolution of Adoptive Relations by Agreement etc.
1 Parties to an adoption may agree
to dissolve the adoptive relationship.
2 If an adopted child is under 15 years of age, an adoptive parent and a person to
- 15 -
be a legal representative of the child after the dissolution of adoptive
relation may
agree to dissolve the adoptive relation.
3 If, in the case referred to in the preceding paragraph, the parents
of the adopted
child divorce, they may agree that one of them should have parental authority
with respect to the child after
the dissolution of adoptive relation.
4 If the parents of the adopted child do not, or cannot, make the agreement
referred
to in the preceding paragraph, the family court may, on the application of
a father, a mother, or an adoptive parent referred to
in that paragraph, make a
ruling in lieu of the agreement.
5 If there is no person to be a legal representative of the adopted
child for the
purposes of paragraph 2 , the family court may, on the application of any relative
of the adopted child or any
other interested party, appoint a person to be a
guardian of a minor for the adopted child after the dissolution of adoptive relation.
6 If one of the parties to an adoption has died and the surviving party intends to
dissolve the adoptive relation, he/she
may do so with the permission of the family
court.
Article 811-2 Dissolution of Adoptive relation Between Married Couple and
Minor
Where adoptive parents who are married to each other intend to dissolve the
adoptive relation with a minor, they shall do
so jointly; provided, however, that this
shall not apply if one of them is incapable of indicating his/her intention.
Article 812
Application Mutatis Mutandis of Marriage Provisions
The provisions of Article 738, Article 739, and Article 747 shall apply mutatis
mutandis to dissolution of adoptive relation. In this case, 'three months' in
paragraph 2 of Article 747 shall
be read as 'six months'.
Article 813 Acceptance of Notification of Dissolution of Adoptive Relation
1 No notification of
dissolution of adoptive relation shall be accepted until it has
been found not to violate any of the provisions of paragraph
2 of Article 739
applied mutatis mutandis to the preceding Article, Article 811 and Article 811-2, or
the provisions
of any other laws and regulations.
2 Where the notification of dissolution of adoptive relation has been accepted in
violation
of the provisions of the preceding paragraph, the dissolution is not
prevented from taking effect due to the violation.
Article 814 Judicial Dissolution of Adoptive Relation
1 Either of the parties to an adoption may, in the following cases only,
bring an
action for dissolution of adoptive relation:
i if he/she has been abandoned in bad faith by the other party;
- 16 -
ii if it is not clear whether the other party is dead or alive for
not less than three
years; or
iii if there is any other material ground making it difficult to continue the
adoptive
relation.
2 The provision of paragraph 2 of Article 770 shall apply mutatis mutandis to
the cases listed in item i
and item ii of the preceding paragraph.
Article 815 Party to Action for Dissolution of Adoptive Relation When Adopted
Child
below 15 years of age
If an adopted child has not attained 15 years of age, a person who may make an
agreement with the adoptive
parent s to dissolve the adoptive relation pursuant to
the provisions of Article 811 may bring or be subject to an action
for dissolution of
adoptive relation.
Article 816 Resumption of Surname by Dissolution of Adoptive Relation
1 An adopted child shall resume using the surname he/she
used before the
adoption by dissolution of adoptive relation; provided that this shall not apply
where a married person adopted
another as his/her child with his/her spouse
jointly and the adopted child dissolved the adoptive relation with only one of
adoptive
parents.
2 If a person resumes using the name h/she used before the adoption pursuant to
the provision of the preceding paragraph
after seven years have passed since the
time of adoption, he/she may take the surname used at the time of dissolution of
adoptive
relation by giving notification, pursuant to the provisions of the Family
Registration Act, within three months of the day of dissolution.
Article 817 Assumption of Rights upon Resumption of Surname by Dissolution of
Adoptive Relations
The provisions of Article
769 shall apply mutatis mutandis to dissolution of
adoptive relations.
Subsection 5 Special Adoption
Article 817-2
Making of Special Adoption
1 The family court may, on the application of a person to be an adoptive parent,
make a ruling establishing
an adoption which extinguishes the legal relationship
between a child and his/her natural relatives referred to in this
subsection as
'special adoption' .
2 The permission referred to in Article 794 and Article 798 is not required for the
application
referred to in the provision of the preceding paragraph.
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Article 817-3
Joint Adoption by Married Couple
1 A person to be an adoptive parent shall be a married person.
2 If one spouse does not become
an adoptive parent, the other spouse may not be
an adoptive parent; provided, however, that this shall not apply if that spouse
intends to adopt a child in wedlock of the other spouse excluding an adopted child
who is not the subject of a special adoption
ruling .
Article 817-4 Age of Person to be Adoptive Parent
A person who has not attained 25 years of age may not be an adoptive
parent;
provided that this shall not apply if one spouse of a married couple to be adoptive
parents has attained 20 years of age
but has not attained 25 years of age.
Article 817-5 Age of Person to be Adopted Child
No person who has attained 6 years of age
at the time of the application referred to
in the provisions of Article 817-2 shall be adopted; provided that this shall not apply
if he/she has not attained 8 years of age and has been continually cared for by a
person to be an adoptive parent since before the
child attained 6 years of age.
Article 817-6 Parental Consent
A ruling of special adoption shall only be made if both parents
of a person to be
adopted gives his/her consent to the special adoption; provided that this shall not
apply in cases where the parents
are incapable of indicating their intention or the
parents have abused the child, abandoned the child without reasonable cause, or
there is any other cause of grave harm to the interests of the person to become the
adopted child.
Article 817-7 Necessity Especially
for the Interests of the Child
A ruling of special adoption shall only be made if both parents of a person to be
adopted are incapable
or unfit to care for the child or there are any other special
circumstances, and it is found that the special adoption is especially
necessary for the
interests of the child.
Article 817-8 Circumstances of Care
1 In making a ruling of special adoption, the
circumstances of not less than six
months of the care given by the person s to become adoptive parent s over the
person
to become the adopted child shall be considered.
2 The period in the preceding paragraph shall be calculated from the time of
the
application referred to in the provisions of Article 817-2; provided that this shall
not apply if the circumstances of care
are evident prior to the application.
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Article 817-9 Extinguishment of Legal Relationship
with Natural Relatives
The legal relationship between an adopted child and his/her natural parents and
relative by bloods shall
be extinguished by a ruling of special adoption; provided that
this shall not apply to the legal relationship with the other party
referred to in the
provision of the proviso to paragraph 2 of Article 817-3 and his/her relative by
bloods.
Article
817-10 Dissolution of Special Adoption
1 The family court may, on the application of the adopted child, his/her natural
parents or a public prosecutor, make a ruling dissolving the adoptive relation, if
both of the following items are satisfied and
the family court finds it especially
necessary for the interests of the adopted child:
i the adoptive parents have abused,
or abandoned in bad faith, the adopted child
or there is any other ground of extreme harm to the interests of the adopted
child;
ii the natural parent s are capable of providing reasonable care for the child.
2 Dissolution of
special adoption shall only be made pursuant to the provision of
the preceding paragraph.
Article 817-11 Restoration
of Legal Relationship with Natural Relatives by
Dissolution of Adoptive Relation
The same legal relationship that was extinguished
by the special adoption shall
arise between an adopted child and his/her natural parents and their relatives by
blood from the time
of dissolution of adoptive relation.
Chapter 4 Parental Authority
Section 1 General Provisions
Article
818 Person Who Has Parental Authority
1 A child who has not attained the age of majority shall be subject to the parental
authority of his/her parents.
2 If a child is an adopted child, he/she shall be subject to the parental authority of
his/her
adoptive parents.
3 Parental authority shall be exercised jointly by married parents; provided that if
either parent is
incapable of exercising parental authority, the other parent shall
do so.
Article 819 Person Who Has Parental Authority
in the Case of Divorce or
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Recognition
1 If parents divorce by agreement,
they may agree upon which parent shall have
parental authority in relation to a child.
2 In the case of judicial divorce, the
court shall determine which parent shall have
parental authority.
3 In the case where parents divorce before the birth of a
child, the mother shall
exercise parental rights and duties; provided that the parties may agree that the
father shall have parental
authority after the child is born.
4 A father shall only exercise parental authority with regard to a child of his that
he has
affiliated if both parents agree that he shall have parental authority.
5 When the parents do not, or cannot, make the agreements
referred to in
paragraph 1 , paragraph 3 , and the preceding paragraph, the family court may,
on the application of the father
or the mother, make a ruling in lieu of agreement.
6 The family court may, on the application of any relative of the child, rule
that
that the other parent shall have parental authority in relation to the child if it
finds it necessary for the interests
of the child.
Section 2 Effect of Parental Authority
Article 820 Right and Duty of Care and Education
A person who
exercises parental authorit holds the right, and bears the duty, to
care for and educate the child.
Article 821 Determination of
Residence
Residence of a child shall be determined by a person who exercises parental
authority.
Article 822 Discipline
1
A person who exercises parental authority may discipline the child to the extent
necessary, or enter the child into a disciplinary
institution with the permission of
the family court.
2 The family court may determine that the child shall stay in a disciplinary
institution for a period of no more than six
months; provided that this period may
be shortened at any time on the application of a person who exercises parental
authority.
Article 823 Permission for Occupation
1 A child may not have an occupation without the permission of a person who
exercises
parental authority.
2 A person who exercises parental authority may revoke or limit the permission
- 20 -
referred to in the preceding paragraph in the case referred to in paragraph 2 of
Article
6 .
Article 824 Administration and Representation over Property
A person who exercises parental authority shall administer the
property of the
child and represent the child in any legal juristic act in respect of the child's
property; provided, however, that
if an obligation requiring an act of the child is to be
created, the consent of the child shall be obtained.
Article 825 Effect
of Acts Done by One Parent in the Name of Both Parents
Where parents exercise parental authority jointly and one parent, in the
name of
both parents, performs a juristic act on behalf of a child, or give his/her consent for
the child to perform a juristic act,
the effect of that act shall not be prevented, even if
it is contrary to the intention of the other parent; provided, however, that
this shall
not apply if the other party has knowledge.
Article 826 Conflict of Interest
1 If an act involves a conflict of
interest between a father or mother who exercises
parental authority and a child, a person who exercises parental authority shall
apply to the family court to have a special representative for the child appointed.
2 In the case where a person exercises
parental authority for more than one child,
if there is an act which involves a conflict of interest between one child and the
other child or children, a person who exercises parental authority shall apply to
have a special representative for that child
appointed.
Article 827 Duty of Care in Administration of Property
A person who exercises parental authority shall
exercise the right of
administration of property with the same care he/she would exercise for him/herself.
Article 828
Accounts of Administration of Property
When a child attains the age of majority, a person who exercised parental
authority shall
account for the administration of property without delay; provided,
however, that the expenses incurred in the care of the child
and the administration
of property shall be deemed to have been set-off against the profits from the child's
property.
Article
829
If a third party who has granted property to a child gratuitously indicates a
contrary intention, the provision of the proviso
to the preceding Article shall not
apply to that property.
- 21 -
Article 830 Administration
of Property Given to Child by Third Party Gratuitously
1 If a third party who grants property to a child gratuitously indicates
an
intention not to allow a father or mother who exercises parental authority to
administer that property, that property shall
not be subject to the administration
of the father or mother.
2 If neither parent has the right to administer the property referred
to in the
preceding paragraph and the third party does not appoint an administrator for
that property, the family court may,
on the application of a child, any relative of
the child or a public prosecutor, appoint an administrator.
3 Even if a third
party has appointed an administrator for the property, the
preceding paragraph shall apply if the right of that administrator is
extinguished
or the replacement of that administrator is required, and the third party does not
appoint another administrator.
4 The provisions of Articles 27 to 29 inclusive shall apply mutatis mutandis to the
cases referred to in the preceding two paragraphs.
Article 831 Application Mutatis Mutandis of Mandate
Provisions
The provisions of Article 654 and Article 655 shall apply mutatis mutandis to the
case where a person who exercises
parental authority administers the property of a
child and the case referred to in the preceding Article.
Article 832 Extinctive
Prescription of Obligations between Parent and Child That
Arise from Administration of Property
1 Obligations that arise from
the administration of property between a person who
exercised parental authority and the child shall be extinguished by prescription
if
not exercised within five years from the time the right of administration of
property is extinguished.
2 If the right of
administration of property is extinguished while the child has not
yet attained the age of majority and the child has no legal
representative, the
period in the preceding paragraph shall be calculated from the time the child
attains the age of majority
or a new legal representative takes office.
Article 833 Exercise of Parental Authority on Behalf of Child
A person who exercises
parental authority with regard to a child shall exercise
parental authority in lieu of that child regarding that child's child.
Section 3 Loss of Parental Authority
Article 834 Loss of Parental Authority
- 22 -
If a father or mother abuses parental authority or if there is gross misconduct, the
family court may, on the application
of any relative of the child or a public
prosecutor, make a ruling that strips the father or mother of his/her parental
authority.
Article 835 Loss of Right of Administration of Property
If a father or mother who exercises parental authority endangers the
property of a
child through an impropriety in his/her administration, the family court may, on the
application of any relative of
the child or a public prosecutor, make a ruling that
strips the father or mother of his/her right to administrate the property.
Article 836 Rescission of Ruling on Loss of Parental Authority or Right of
Administration of Property
If the causes in
the preceding two Articles have ceased to exist, the family court
may, on the application of the person concerned or any relative
of his/hers, rescind a
ruling of loss of parental authority or right of administration of property made
pursuant to the provisions
of the preceding two Articles.
Article 837 Surrender and Resumption of Parental Authority or Right of
Management Administration
of Property
1 If there is an unavoidable reason, a father or mother who exercises parental
authority may, with the permission
of the family court, surrender parental
authority or the right of administration of property.
2 If the reason in the preceding
paragraph has ceased to exist, a father or mother
may, with the permission of the family court, resume parental authority or the
right of administration of property.
Chapter 5 Guardianship
Section 1 Commencement of Guardianship
Article 838
Guardianship shall commence in the following cases:
i if there is no person with parental authority over
a minor or if a person with
parental authority is unable to exercise the right of administration of property.
ii
if there has been an order for commencement of guardianship.
Section 2 Organs of Guardianship
Subsection
1 Guardian
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Article 839 Designation of Guardian of Minor
1 A person who
last exercises parental authority over a minor may designate a
guardian of a minor by will; provided that this shall not apply
to a person who has
no right of administration of property.
2 If one of the parents who have parental authority has no right
of administration
of property, the other parent may designate a guardian of a minor pursuant to the
provision of the preceding paragraph.
Article 840 Appointment of Guardian of Minor
If there is no person to become a guardian of a minor pursuant to the provisions of
the preceding Article, the family court may
appoint a guardian of a minor on the
application of a minor ward or his/her relative, or other interested person. This
shall
also apply in a case where any vacancy in the position of a guardian of a minor
occurs.
Article 841 Application for Appointment
of Guardian of Minor by Parents
If a father or mother surrenders parental authority or the right of administration
of property,
or if the necessity to appoint a guardian of a minor arises through loss of
parental authority, the father or mother shall, without
delay, apply to the family
court for the appointment of a guardian of a minor.
Article 842 Number of Guardians of Minor
There
shall be no more than one guardian of a minor.
Article 843 Appointment of Guardian of Adult
1 The family court shall appoint
ex officio a guardian of an adult if it orders
commencement of guardianship.
2 If the office of a guardian of an adult is vacant,
the family court shall appoint a
guardian of an adult on the application of an adult ward or his/her relative, or
other interested
person, or ex officio.
3 Even if a guardian of an adult has been appointed, the family court may appoint
a further guardian,
when it finds this necessary, at the application of the persons
prescribed in the preceding paragraph, or a guardian of an adult,
or ex officio.
4 In the appointment of a guardian of an adult, the family court shall consider the
physical and mental condition
and the living and property circumstances of the
adult ward, the occupation and personal history of the person to become the
guardian, the existence of any vested interest between them if the person to
become a guardian of an adult is a juridical
person, its type and content of
business and the existence of any vested interest between the adult ward and the
- 24 -
juridical person or its representative , the opinion of the adult ward, and all other
matters.
Article 844 Surrender of Guardianship
A guardian of an adult may, where any justifiable reason exists, surrender his/her
office upon the permission of the family court.
Article 845 Application for Appointment of New Guardian upon the Surrender
of
Guardianship
If the necessity to appoint a new guardian arises through a guardian's surrender of
office, the guardian shall,
without delay, petition the family court to appoint a new
guardian.
Article 846 Replacement of Guardian
If there is an unlawful
act, grave misconduct, or other cause not befitting the office
of guardianship on the part of a guardian, the family court may replace
the guardian
on the application of a supervisor of a guardian, a ward or his/her relative, or a
public prosecutor, or ex officio.
Article 847 Causes of Disqualification of Guardian
Any person who falls under any of the following items may not become a guardian:
i a minor;
ii a legal representative, curator, or assistant who has been replaced by the
family court;
iii
a bankrupt;
iv a person who has brought or is bringing an action against the ward,,or a
spouse or lineal blood relative
by blood of such person; or
v a person whose whereabouts are unknown.
Subsection 2 Supervisor of a Guardian
Article 848 Designation of Supervisor of Guardian of Minor
A person who may designate a guardian of a minor may designate a supervisor
of a
guardian of a minor by will.
Article 849 Appointment of Supervisor of Guardian of Minor
If there is no person who has been
designated a supervisor of a guardian of a
minor pursuant to the provision of the preceding Article, the family court may
appoint
a supervisor of a guardian of a minor, when it finds this necessary, on the
application of a minor ward or his/her relative, or a guardian of a minor, or ex officio.
- 25 -
This shall also apply in the case where any vacancy in the position of a
supervisor
of a guardian of a minor occurs.
Article 849-2 Appointment of Supervisor of Guardian of Adult
The family court may
appoint a supervisor of a guardian of an adult if it finds this
necessary on the application of an adult ward or his/her relative,
or a guardian of an
adult, or ex officio.
Article 850 Causes of Disqualification of Supervisor of a Guardian
A spouse, lineal
relative by blood, or sibling of a guardian may not become a
supervisor of a guardian.
Article 851 Duties of Supervisor of Guardian
The duties of a supervisor of a guardian are as follows:
i to supervise the affairs of a guardian;
ii to apply
to the family court without delay to appoint a guardian in the case
where any vacancy in the position of a guardian occurs;
iii to take necessary measures in the case of an emergency; and
iv to represent the ward in conduct where there
is a conflict of interest between
the ward and the guardian or his/her representative.
Article 852 Application Mutatis
Mutandis of Mandate and Guardian Provisions
The provisions of Article 644, Article 654, Article 655, paragraph 4 of Article
843, Article 844, Article 846, Article 847, Article 859-2, Article 859-3, paragraph 2
of Article 861, and Article 862 shall apply
mutatis mutandis to a supervisor of a
guardian.
Section 3 Affairs of Guardian
Article 853 Investigation of Property
and Preparation of Inventory
1 A guardian shall, without delay, undertake an investigation of the ward's
property, and finalize
the investigation and prepare an inventory of property
within one month; provided that this period may be extended with the approval
of
the family court.
2 An investigation of property and the preparation of an inventory of property
shall not be valid
unless conducted in the presence of a supervisor of the guardian,
if one exists.
Article 854 Authority Prior to Completion of
Inventory of Property
Until a guardian has completed the inventory of property, he/she shall not be
- 26 -
entitled to exercise his/her authority unless there is an urgent need; provided that
this may not
be asserted against a third party in good faith.
Article 855 Guardian's Duty to Report Claims or Obligations in Relation to Ward
1 In the case where a guardian has any claim or bears any obligation in relation to
a ward, he/she shall report this to the
supervisor, if one exists, before undertaking
an investigation of property.
2 If a guardian knows of a claim against a ward
and does not report it, this claim
is lost.
Article 856 Application Mutatis Mutandis to the Case Ward Acquires Property
under
Universal Title
The provisions of the preceding three Articles shall apply mutatis mutandis to the
case where a ward acquires property
under universal title after a guardian has
assumed office.
Article 857 Rights and Duties regarding Personal Supervision of Minor
Ward
A guardian of a minor shall have, with respect to the matters prescribed in the
Articles 820 to 823 inclusive, the same rights
and duties as a person who exercises
parental authority; provided that in order to change the plan of education or the
residence
determined by a person who exercises parental authority, to enter a minor
ward into a disciplinary facility, to give permission to
carry on business, or to revoke
or limit that permission, he/she shall obtain the consent of a supervisor of a guardian
of a minor,
if one exists.
Article 858 Respect for Intention and Personal Consideration of Adult Ward
A guardian of an adult, in undertaking
affairs related to the life, medical
treatment and nursing, and administration of property of an adult ward, shall
respect the intention of the adult ward, and consider his/her mental
and physical
condition and living circumstances.
Article 859 Administration and Representation over Property
1 A guardian shall
administer the property of a ward and represent a ward in
juristic acts concerning his/her property.
2 The provision of the
proviso to Article 824 shall apply mutatis mutandis to the
case referred to in the preceding paragraph.
Article 859-2 Exercise
of Authority where Multiple Guardians of Adult
1 If there are multiple guardians of an adult, the family court may determine ex
officio that the guardians should exercise authority jointly or according to a
- 27
-
division of labor.
2 The family court may rescind ex officio a determination made pursuant to the
provisions of the preceding
paragraph.
3 If there are multiple guardians of an adult, it is sufficient that a manifestation of
intention by a third party
be made to one guardian.
Article 859-3 Permission regarding Disposition of Real Estate Used for Adult Ward's
Residence
A guardian
of an adult shall obtain the permission of the family court for sale,
rent, cancellation of lease, or establishment of a mortgage,
or any other disposition
equivalent to these, on the ward's behalf with regard to a building or site used for
the adult ward's residence.
Article 860 Acts in Conflict of Interest
The provisions of Article 826 shall apply mutatis mutandis to a guardian; provided
that
this shall not apply in the case where there is a supervisor of a guardian.
Article 861 Expenditure Estimation and Expenses of
Affairs of Guardianship
1 Upon assumption of office, a guardian shall estimate the amount of money that
will be required in
annual expenditure for the living, education, medical treatment
and nursing, and administration of property of the ward.
2 A
guardian shall pay the expenses necessary to undertake the affairs of
guardianship out of the property of the ward.
Article 862
Remuneration to Guardian
The family court may grant reasonable remuneration to a guardian out of the
property of the ward, considering
the financial capacity of the guardian and the ward
and other circumstances.
Article 863 Supervision of Affairs of Guardianship
1 A supervisor of a guardian or the family court may, at any time, demand that a
guardian submit a report on the affairs of
guardianship or an inventory of
property, and may investigate the affairs of guardianship or the situation of the
property of
the ward.
2 The family court may order any necessary disposition concerning the
administration of the property of a ward, or
other affairs of guardianship, on the
application of a supervisor of a guardian, the ward or his/her relative, or other
interested
person, or ex officio.
Article 864 Acts Requiring the Consent of a Supervisor of Guardian
- 28 -
For a guardian, on behalf of a ward, to undertake business or the acts listed in
each item of paragraph
1 of Article 13, or to give consent for a minor ward to
undertake the same, he/she shall obtain the consent of a supervisor
of a guardian, if
one exists; provided that this shall not apply to the receipt of principal listed in item
i of paragraph 1
of Article 13.
Article 865
1 A ward or a guardian may rescind acts conducted or consented to by a guardian
in violation
of the provisions of the preceding Article. In this case, the provisions
of Article 20 shall apply mutatis mutandis.
2
The provision of the preceding paragraph shall not preclude the application of
the provisions of Articles 121 to 126 inclusive.
Article 866 Ward's Rescission of Reception of Property etc.
1 If a guardian has received the property of a ward or the right
of a third party
against the ward, the ward may rescind that reception. In this case, the
provisions of Article 20 shall apply mutatis mutandis.
2 The provision
of the preceding paragraph shall not preclude the application of
the provisions of Articles 121 to 126 inclusive.
Article
867 Exercise of Parental Authority on Behalf of Minor Ward
1 A guardian of a minor shall exercise parental authority in lieu
of a minor ward
with respect to that minor ward's child.
2 The provisions of Articles 853 to 857 inclusive and Articles
861 to 866 inclusive
shall apply mutatis mutandis to the case referred to in the preceding paragraph.
Article 868 Guardian
of Minor with Rights and Duties regarding Property Only
In the case where a person who has parental authority does not have
the right of
administration of property, a guardian of a minor shall have authority regarding
property and that authority only.
Article 869 Application Mutatis Mutandis of Mandate and Parental Authority
Provisions
The provisions of Article 644 and
Article 830 shall apply mutatis mutandis to
guardianship.
Section 4 Termination of Guardianship
Article 870 Account
of Guardianship
When the office of a guardian comes to an end, he/she or his/her successor shall
- 29 -
render an account of his/her administration within two months; provided that this
period may be extended
with the approval of the family court.
Article 871
An account of guardianship shall be conducted in the presence of a supervisor
of a
guardian, if one exists.
Article 872 Rescission of Contract etc. between a Minor Ward and Guardian of
Minor etc.
1
A person who, as an ex-minor ward, made a contract with a guardian, or the heir
of the guardian, after attaining majority but before
settlement of the account of
guardianship may rescind such contract. The same shall apply to unilateral
juristic acts
that person makes toward a guardian of a minor or his/her successor.
2 The provisions of Article 20 and Articles 121 to 126 inclusive
shall apply mutatis
mutandis to the case referred to in the preceding paragraph.
Article 873 Payment of Interest etc. upon Money
Refunded
1 Money to be refunded by a guardian to a ward and money to be refunded by a
ward to a guardian shall bear interest
from the time the account of guardianship is
settled.
2 If a guardian has expended a ward's money for his/her own benefit, such
money
shall bear interest from the time of the expenditure. In this case, further damages
are incurred by the ward, the guardian
shall be liable for such damages.
Article 874 Application Mutatis Mutandis of Mandate Provisions
The provisions of Article 654
and Article 655 shall apply mutatis mutandis to
guardianship.
Article 875 Extinctive Prescription of Claim That Arises from Guardianship
1 The provisions of Article 832 shall apply mutatis mutandis to the extinctive
prescription of a claim that arises from guardianship
between a guardian or a
supervisor of a guardian and a ward.
2 In the case where a juristic act is rescinded pursuant to the
provisions of Article
872, the period of the extinctive prescription prescribed in the preceding paragraph
commences from the
time of that rescission.
Chapter 6 Curatorship and Assistance
Section 1 Curatorship
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Article 876 Commencement of Curatorship
Curatorship shall commence by order of commencement of curatorship.
Article 876-2 Appointment etc. of Curator or Temporary Curator
1 If the family court orders commencement of curatorship, it
will appoint a curator
ex officio.
2 The provisions of paragraphs 2 to 4 of Article 843 and from Article 844 to 847
inclusive
shall apply mutatis mutandis to a curator.
3 For acts where there is a conflict of interest between the curator or his/her
representative
and a person under curatorship, the curator shall apply to the
family court for the appointment of a temporary curator; provided that this shall
not
apply in the case where there is a supervisor of a curator.
Article 876-3 Supervisor of Curator
1 The family court may appoint
a supervisor of a curator, if it finds this necessary,
on the application of a person under curatorship or his/her relative, or
a curator, or
ex officio.
2 The provisions of Article 644, Article 654, Article 655, paragraph 4 of Article
843, Article
844, Article 846, Article 847, Article 850, Article 851, Article 859-2,
Article 859-3, paragraph 2 of Article 861, and Article
862 shall apply mutatis
mutandis to a supervisor of a curator. In this case, the term 'represent the ward
regarding' in item
iv of Article 851 shall be deemed to be replaced with
'represent a person under curatorship regarding, or give consent for
a person under
curatorship to undertake the same'.
Article 876-4 Order Granting Power of Representation to Curator
1 On the
application of a person prescribed by the main clause of Article 11 or a
curator, or a supervisor of a curator, the family court
may make an order that
grants power of representation to the curator, concerning specified juristic acts for
the person under
curatorship.
2 An order referred to in the preceding paragraph made upon the application of
any person other than the person
under curatorship shall require the consent of
the person under curatorship.
3 The family court may rescind an order referred
to in paragraph 1 , in whole or
in part, on the application of a person prescribed by that paragraph.
Article 876-5 Affairs of
Curatorship and Termination of Office of Curator
1 A curator, in undertaking the affairs of curatorship, shall respect the intention
of
the person under curatorship, and consider his/her mental and physical condition
and living circumstances.
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2 The provisions of Article 644, Article 859-2, Article 859-3, paragraph 2 of
Article 861, Article 862, and Article 863 shall apply mutatis mutandis to the affairs
of curatorship, and the provision of the
proviso to Article 824 shall apply mutatis
mutandis to the case where a curator represents a person under curatorship based
upon
an order granting the power of representation referred to in paragraph 1 of
the preceding Article.
3 The provisions
of Article 654, Article 655, Article 870, Article 871 and Article 873
shall apply mutatis mutandis to the case of termination of
office of a curator, and
the provisions of Article 832 shall apply mutatis mutandis to claims that arise from
curatorship between
a curator, or a supervisor of a curator, and a person under
curatorship.
Section 2 Assistance
Article 876-6 Commencement
of Assistance
Assistance shall commence by order of commencement of assistance.
Article 876-7 Appointment etc. of Assistant or
Temporary Assistant
1 If the family court orders commencement of assistance, it will appoint an
assistant ex officio.
2 The
provisions of paragraphs 2 to 4 of Article 843 and from Article 844 to
847 inclusive shall apply mutatis mutandis to
an assistant.
3 For acts where there is a conflict of interest between the assistant or his/her
representative and a person
under assistance, the assistant shall apply to the
family court for the appointment of a temporary assistant; provided that this
shall
not apply in the case where there is a supervisor of an assistant.
Article 876-8 Supervisor of Assistant
1 The family
court may appoint a supervisor of an assistant, if it finds this
necessary, on the application of a person under assistance, his/her
relative, or an
assistant, or ex officio.
2 The provisions of Article 644, Article 654, Article 655, paragraph 4 of Article
843, Article 844, Article 846, Article 847, Article 850, Article 851, Article 859-2,
Article 859-3, paragraph 2 of Article 861, and Article 862 shall apply mutatis
mutandis
to a supervisor of an assistant. In this case, the term 'represent the
ward regarding' in item iv of Article 851
shall be deemed to be replaced with
'represent a person under assistance regarding, or give consent for a person under
assistance
to undertake the same.
Article 876-9 Order Granting Power of Representation to Assistant
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1 On the application of a person prescribed by the main clause of paragraph 1
of Article 15, an assistant,
or a supervisor of an assistant, the family court may
make an order that grants power of representation to the assistant, concerning
specified juristic acts for the person under assistance.
2 The provisions of paragraph 2 and paragraph 3 of Article
876-4 shall apply
mutatis mutandis to the order referred to in the preceding paragraph.
Article 876-10 Affairs of Assistance
and Termination of Office of Assistant
1 The provisions of Article 644, Article 859-2, Article 859-3, paragraph 2 of
Article 861, Article 862, Article 863, and paragraph 1 of Article 876-5, shall
apply mutatis mutandis to the affairs
of assistance, and the provision of the
proviso to Article 824 shall apply mutatis mutandis to the case where an assistant
represents
a person under assistance based upon an order granting the power of
representation referred to in paragraph 1 of the preceding
Article.
2 The provisions of Article 654, Article 655, Article 870, Article 871 and Article 873
shall apply mutatis mutandis
to the case of termination of office of an assistant,
and the provisions of Article 832 shall apply mutatis mutandis to claims
that arise
from assistance between an assistant, or a supervisor of an assistant, and a person
under assistance
Chapter
7 Support
Article 877 Supporter under Duty
1 Lineal relative by blood and siblings have a duty to support each other.
2 If
special circumstances exist, the family court may also impose a duty of
support between relatives within the third degree, in addition
to the case
prescribed in the preceding paragraph.
3 If an alteration in circumstances arises after an order pursuant to the
provision
of the preceding paragraph, the family court may revoke that order.
Article 878 Order of Support
In the case where
there exist several persons under a duty to give support, and
agreement has not, or cannot be, reached between the parties with respect
to the
order in which they are to give support, the family court shall determine the order.
In the case where there exist several
persons entitled to support and the financial
capacity of the person under a duty to give support is insufficient to support them
all,
the same shall apply.
Article 879 Extent and Form of Support
If agreement has not, or cannot be, reached between the parties
with respect to the
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extent and form of support, the family court shall determine
such matters,
considering the needs of the person entitled to support, the financial capacity of the
person under a duty to give
support, and any other related circumstances.
Article 880 Alteration or Revocation of Agreement or Order with Regard to Support
If an alteration in circumstances arises after an agreement or an order regarding
the order of persons under a duty to support,
persons entitled to support, or the
extent or form of support, the family court may alter or revoke the agreement or the
order.
Article 881 Prohibition of Disposition of Claim for Support
The right to support may not be subject to disposition.
Part
V Inheritance
Chapter 1 General Provisions
Article 882 Cause of Commencement of Inheritance
Inheritance shall commence
upon the death of the decedent.
Article 883 Place of Commencement of Inheritance
Inheritance shall commence at the place of domicile of the decedent.
Article 884
Right to Claim for Recovery of Inheritance
If the right to claim for recovery of inheritance is not exercised within five years
of
the time an heir or his/her legal representative becomes aware of the fact that the
inheritance right has been infringed, that
right shall be extinguished by prescription.
The right shall also be extinguished if twenty years have passed from the time of
commencement
of inheritance.
Article 885 Expenses relating to Inherited Property
1 Expenses relating to inherited property shall be paid
out of that property;
provided that this shall not apply to expenses resulting from the negligence of an
heir.
2 The expenses
of the preceding paragraph are not required to be paid out of
property obtained by a claimant to statutory reserved portion through
abatement
of a gift.
Chapter 2 Heir
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Article 886 Unborn Child's
Legal Capacity to Hold Rights Relating to Inheritance
1 In regard to inheritance, an unborn child shall be deemed to have
already been
born.
2 The provision of the preceding paragraph shall not apply if the child is stillborn.
Article 887 Right
to Inheritance of Child and Heir per Stirpes etc.
1 The child of a decedent shall be an heir.
2 If a decedent's child
has died before the commencement of inheritance, or has
lost the right to inheritance by application of the provisions of Article
891 or
disinheritance, the child of the decedent's child shall be an heir as an heir per
stirpes; provided that this shall not
apply if the child is not a lineal descendant of
the decedent.
3 The provision of the preceding paragraph shall apply mutatis
mutandis to the
case where an heir per stirpes has died before the commencement of inheritance, or
has lost the right of inheritance
as an heir per stirpes by application of the
provisions of Article 891, or by disinheritance.
Article 888
Deleted
Article
889 Right of Inheritance of Lineal Descendant and Sibling
1 In the case where there is no person to become an heir pursuant
to the
provisions of Article 887, the following persons shall become heirs in accordance
with the following order of rank:
i lineal descendants of the decedent; provided that between persons of differing
degree of kinship, the person who
is of closer relationship shall have higher
priority of inheritance;
ii siblings of the decedent.
2 The provisions
of paragraph 2 of Article 887 shall apply mutatis mutandis to
the case referred to in item ii of the preceding paragraph.
Article 890 Right of Inheritance of Spouse
The spouse of a decedent shall always be an heir. In this case, if there is a person
to become an heir pursuant to the provisions of Article 887 or the preceding Article,
the spouse shall be of the same rank as that
person.
Article 891 Causes of Disqualification of Heir
The following persons may not become an heir:
i a person who has
received punishment for intentionally causing, or attempting
to cause, the death of a decedent or a person of equal or prior
rank in relation to
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inheritance;
ii a person who is aware
that the decedent was killed by someone but made no
accusation or complaint about this; provided that this shall not apply
if that
person cannot discern right from wrong, or if the killer was that person's spouse
or lineal relative;
iii
a person who prevented a decedent from making, revoking, rescinding, or
changing a will relating to inheritance through fraud
or duress;
iv a person who forced a decedent to make, revoke, rescind, or change a will
relating to inheritance through
fraud or duress; or
v a person who has forged, altered, destroyed, or concealed a decedent's will
relating to inheritance.
Article 892 Disinheritance
of Presumed Heir
A decedent may make an application to the family court for the disinheritance of a
presumed heir here and below,
referring to a person who would otherwise become
an heir upon the commencement of inheritance who has a legally reserved
portion
if that person has abused or given grave insult to the decedent, or if there has been
any other grave misconduct on the part
of the presumed heir.
Article 893 Disinheritance of Presumed Heir by Will
If a decedent has indicated an intention by will to
disinherit a presumed heir, the
executor of that will shall apply to the family court for disinheritance of the
presumed heir without
delay after the will has taken effect. In this case, the
disinheritance of that presumed heir shall have retroactive effect
from the time of the
decedent's death.
Article 894 Rescission of Disinheritance of Presumed Heir
1 A decedent may at any
time make an application to the family court to rescind
the disinheritance of a presumed heir.
2 The provision of the preceding
Article shall apply mutatis mutandis to the
rescission of disinheritance of a presumed heir.
Article 895 Administration of Inherited
Property before Ruling for Disinheritance of
Presumed Heir Becomes Unappealable
1 If inheritance has commenced before a ruling
has become final and binding after
an application for the disinheritance of a presumed heir, or the rescission of that
disinheritance,
the family court may order any necessary disposition with regard to
the administration of inherited property upon the application
of a relative, an
interested party, or a public prosecutor. The same shall apply in the case where a
will was made for the disinheritance
of a presumed heir.
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2 The provisions of Articles 27 to 29 inclusive shall
apply mutatis mutandis to the
case where the family court has appointed an administrator of inherited property
pursuant to the
provisions of the preceding paragraph.
Chapter 3 Effect of Inheritance
Section 1 General Provisions
Article 896 General Effect of Inheritance
From the time of commencement of inheritance, an heir shall succeed blanket
rights and
duties attached to the property of the decedent; provided that this shall
not apply to rights or duties of the decedent that are
purely personal.
Article 897 Assumption of Rights Relating to Rituals
1 Despite the provision of the preceding Article,
rights to ownership of a genealogy,
equipment used in rituals, and any grave, shall be succeeded by the person who
custom dictates
shall preside over rituals for ancestors; provided that if the
decedent designates a person who shall preside over rituals for
ancestors, this
person shall succeed rights to ownership.
2 If, in the case referred to in the main text of the preceding
paragraph, the
custom is not evident, the family court shall determine who shall succeed the
rights in that paragraph.
Article
898 Effect of Joint Inheritance
If there are two or more heirs, the inherited property shall belong to those heirs in
co-ownership.
Article 899
Each joint heir shall succeed the rights and duties of the decedent according to
his/her share in inheritance.
Section2 Share in Inheritance
Article 900 Statutory Share in Inheritance
If there are two or more heirs of the same
rank, their shares in inheritance shall
be determined by the following items:
i if a child and a spouse are heirs, the child's
share in inheritance and the
spouse's share in inheritance shall be one half each;
ii if a spouse and lineal ascendant
are heirs, the spouse's share in inheritance
shall be two thirds, and the lineal ascendant's share in inheritance shall
be one
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third;
iii if a spouse and sibling s are heirs, the spouse's share
in inheritance shall be
three quarters, and the sibling's share in inheritance shall be one quarter;
iv if there are
two or more children, lineal ascendants, or siblings, the share in
the inheritance of each shall be divided equally; provided
that the share in
inheritance of an child out of wedlock shall be one half of the share in
inheritance of a child in
wedlock, and the share in inheritance of a sibling who
shares only one parent with the decedent shall be one half of the share
in
inheritance of a sibling who shares both parents.
Article 901 Statutory Share in Inheritance of Heirs per Stirpes
1
The share in inheritance of a lineal descendant who becomes an heir pursuant to
the provisions of paragraph 2 or paragraph
3 of Article 887 shall be the same
as the share that person's lineal ascendant would have received; provided that if
there
are two or more lineal descendants, their shares in inheritance shall be
determined in accordance with the provisions of the preceding
Article.
2 The provision of the preceding paragraph shall apply mutatis mutandis to the
case where a child of a sibling becomes
an heir pursuant to the provision of
paragraph 2 of Article 889.
Article 902 Designation of Share in Inheritance by Will
1 Despite the provisions of the preceding two Articles, a decedent may by will
determine the share in inheritance of joint
heirs, or entrust a third party to
determine the share; provided that a decedent or a third party may not violate
provisions
relating to legally reserved portion.
2 If a decedent determines, or has a third party determine, the share in
inheritance
of a single heir or several heirs amongst joint heirs, the share in
inheritance of the other joint heir s shall be determined
pursuant to the
provisions of the preceding two Articles.
Article 903 Share in Inheritance of Heir who has Received Special Benefit
1 If there is a person from amongst joint heirs who has previously received a
testamentary gift, or has received a gift for
marriage, adoption, or as capital for
livelihood, the total inherited property shall be deemed the value calculated by
adding
the value of the gift to the value of the property belonging to the decedent
at the time of commencement of inheritance and the
share in inheritance of that
person shall be the remaining amount after deducting the value of that
testamentary gift or a gift
from the share in inheritance calculated pursuant to the
provisions of the preceding three Articles.
2 If the value of the
testamentary gift or gift is equal to, or exceeds, the value of a
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donee
or recipient's share in inheritance, he/she may not receive the share in
inheritance.
3 If the decedent indicates an intention
contrary to the provisions of the preceding
two paragraphs, that intention shall only have effect to the extent that it does not
violate the provisions relating to legally reserved portion.
Article 904
With regard to the value of the gift referred to in
the provisions of the preceding
Article, even if, through the conduct of the recipient there the property of the gift is
lost, or
if there is a fluctuation in its value, the determination of value shall be
deemed as the value at the time of commencement of inheritance
in its original state.
Article 904-2 Contributory Portion
1 If there is a person from amongst joint heirs who has made a special
contribution to the maintenance or increase of the decedent's property through the
provision of labor or in the form of property
relating to the decedent's business,
medical treatment or nursing of the decedent, or other means, the total inherited
property
shall be deemed the value calculated by deducting the contributory
portion as determined by agreement by the joint heirs from the value of the
property of the decedent
at the time of commencement of inheritance, and that
person's share in inheritance shall be the amount of the contribution added
to the
share in inheritance calculated pursuant to the provisions of Articles 900 to 902
inclusive.
2 If the agreement of
the preceding paragraph is not, or cannot be, settled, the
family court shall determine the amount of contributory portion upon
the
application of the person who has contributed referred to in the provision of the
preceding paragraph, considering the period
of contribution, the means and extent
of contribution, the amount of the inherited property, and all other circumstances.
3
The contributory portion may not exceed the amount calculated by deducting the
value of a testamentary gift from the value of the
property belonging to the
decedent at the time of commencement of inheritance.
4 The application referred to in paragraph
2 may be made in the case where
there has been an application pursuant to the provision of paragraph 2 of
Article
907, or in the case where there has been a application pursuant to the
provision of Article 910.
Article 905 Recovery Right of
Share of Inheritance
1 If one joint heir assigns his/her share of inheritance to a third party before a
division of the inherited
property, any other joint heir may obtain the share
through the reimbursement of the value and expenses of that and recover the
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share in inheritance.
2 The right of the preceding paragraph shall be exercised
within one month.
Section 3 Division of Inherited Property
Article 906 Criteria of Division of Inherited Property
Upon the division of inherited property, the type and nature of goods or rights
belonging to the inherited property, the age, occupation,
mental and physical state,
and financial circumstances of each heir, and all other matters, shall be considered.
Article 907 Agreement
or Ruling for Division of Inherited Property etc.
1 Joint heirs may at any time divide inherited property by agreement except
in the
case where this is prohibited by the decedent's will pursuant to the provision of the
following Article.
2 If agreement
is not, or cannot be, settled between joint heirs regarding division
of inherited property, each of the joint heirs may make an
application to the family
court for a division of the inherited property.
3 In the case referred to in the preceding paragraph,
if there is a special reason,
the family court may prohibit the division of the inherited property, in whole or
part, for a specified
period.
Article 908 Designation of Form of Division of Inherited Property and Prohibition of
Division
A decedent may by will
determine the form of division of inherited property, or
entrust this to a third party, or prohibit division for a period not exceeding
five years
from the time of commencement of inheritance.
Article 909 Effect of Division of Inherited property
Division of inherited
property shall have retroactive effect from the time of the
commencement of inheritance; provided that this shall not prejudice the
rights of a
third party.
Article 910 Claim of Payment for Value of Person Affiliated after Commencement of
Inheritance
In the
case where a person who becomes an heir through affiliation after the
commencement of inheritance intends to apply for a division
of the inherited
property, if other heirs have already divided the inherited property or made another
disposition, he/she shall only
have a claim of payment for value.
Article 911 Mutual Liability to Guarantee Joint Heirs MSOffice3
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Each joint heir shall, according to his/her share in inheritance, bear liability to
guarantee any
other joint heir, just as a seller.
Article 912 Liability to Guarantee Claim Arising from Division of Inherited
Property
1 Each joint heir shall
guarantee, according to his/her share in inheritance, the
solvency of any obligor of the inherited property at the time of division
regarding
claims arising from the division of inherited property.
2 Each joint heir shall guarantee the solvency of any obligor
of the inherited
property at the time for performance regarding a claim that is either not yet due or
has a condition precedent.
Article 913 Share of Liability to Guarantee Insolvent Joint Heir
If there is an insolvent joint heir who is liable to guarantee
other joint heirs, the
portion of the liability which the insolvent joint heir is to bear shall be apportioned
amongst other joint
heirs with a right to reimbursement, and other solvent joint
heirs shall contribute to the portion unable to be reimbursed according
to the share
in inheritance of each; provided that if there is negligence on the part of the person
who seeks reimbursement, he/she
may not make a claim against other another joint
heir to contribute.
Article 914 Determination of Liability to Guarantee by Will
If a decedent has expressed a different intent by will, the provisions of the
preceding three Articles shall not apply.
Chapter 4 Acceptance and Renunciation of Inheritance
Section 1 General Provisions
Article 915 Period for Acceptance
or Renunciation of Inheritance
1 An heir shall give unconditional or qualified acceptance, or renunciation,
regarding inheritance
within three months of the time he/she has knowledge that
there has been a commencement of inheritance for him/her; provided that
this
period may be extended by the family court on the application of an interested
party or a public prosecutor.
2 An heir
may investigate inherited property before making an acceptance or
renunciation of inheritance.
Article 916
If an heir dies
without having made acceptance or renunciation of inheritance, the
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period
of paragraph 1 of the preceding Article shall be calculated from the time
that person's heir comes to know of the MSOffice1
commencement of inheritance for
himself/herself.
Article 917
If an heir is a minor or an adult ward, the period in paragraph
1 of Article 915
shall be calculated from the time that legal representative comes to know of the
commencement of inheritance
for the minor or adult ward.
Article 918 Administration of Inherited Property
1 An heir shall administer inherited property
with the same care he/she would
exercise over his/her own property; provided that this shall not apply if he/she has
accepted
or renounced the inheritance.
2 The family court may at any time order any necessary disposition for the
preservation of inherited
property upon the application of an interested party or a
public prosecutor.
3 The provisions of Articles 27 to 29 inclusive
shall apply mutatis mutandis to the
case where the family court has appointed an administrator manager of inherited
property
pursuant to the provision of the preceding paragraph.
Article 919 Revocation and Rescission of Acceptance and Renunciation
of
Inheritance
1 Acceptance or renunciation of inheritance may not be revoked even within the
period referred to in paragraph
1 of Article 915.
2 The provision of the preceding paragraph shall not prevent the rescission of
acceptance or renunciation
of inheritance made pursuant to the provisions of Part
1 General Provisions and Part 4 Relatives .
3 The right of rescission
in the preceding paragraph shall be extinguished by
prescription if not exercised within six months of the time ratification becomes
possible. The right of rescission in the preceding paragraph shall be extinguished if
ten years have passed since the time of
acceptance or renunciation of inheritance.
4 A person who intends to rescind qualified acceptance or renunciation of
inheritance pursuant to the provision of paragraph 2
shall provide a statement
to that effect to the family court.
Section 2 Acceptance of Inheritance
Subsection
1 Unconditional Acceptance
Article 920 Effect of Unconditional Acceptance
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If an heir makes unconditional acceptance, he/she shall inherit the rights and
duties of the decedent without limitation.
Article
921 Statutory Unconditional Acceptance
An heir shall be deemed to have made unconditional acceptance in the following
cases:
i if an heir has made a disposition of the inherited property in whole or in part
MSOffice4 ; provided that this
shall not apply to an act of preservation or a
lease that does not exceed the period determined in Article 602;
ii
if an heir has not made qualified acceptance or renunciation of inheritance
within the period of paragraph 1 of Article
915;
iii if an heir, even after having made qualified acceptance or renunciation of
inheritance, conceals inherited
property in whole or part, uses that property for
him/herself, or failed intentionally to enter it in the inventory of inherited
property; provided that this shall not apply after the acceptance of a person who
has become an heir due to the
renunciation of inheritance of the original heir.
Subsection 2 Qualified Acceptance
Article 922 Qualified Acceptance
An heir may accept inheritance reserving to perform the obligation or testamentary
gift of the decedent only within the extent
of the property obtained by inheritance.
Article 923 Qualified Acceptance of Joint Heirs
If there are two or more heirs, qualified
acceptance may only be made if all
members of the joint heirs make qualified acceptance jointly.
Article 924 Form of Qualified
Acceptance
If an heir intends to make qualified acceptance, he/she shall prepare an inventory
of the inherited property and submit
this to the family court with a statement to that
effect within the period of paragraph 1 of Article 915.
Article 925 Rights
and Duties upon Qualified Acceptance
If an heir makes qualified acceptance, the rights and duties that person has
towards the decedent
shall be deemed not to have been extinguished.
Article 926 Administration by Person who has Made Qualified Acceptance
1
A person who has made qualified acceptance shall continue administration of
inherited property with the same care he/she would
exercise over his/her own
property.
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2 Article 645, Article 646, paragraph
1 and paragraph 2 of Article 650,
paragraph 2 and paragraph 3 of Article 918 shall apply mutatis mutandis
to
the case referred to in the preceding paragraph.
Article 927 Public Notification and Notice to Inheritance Obligees and Donees
1 A person who makes qualified acceptance shall, within five days of making that
qualified acceptance, make public notification
to all inheritance obligees here and
below, an obligee with a claim towards the inherited property MSOffice5 and
donees to the effect that qualified acceptance has been made and that filing of any
claim should be made within a specified period.
In this case, that period shall be
not less than two months.
2 In the public notification in the preceding paragraph, it shall
be prescribed that
inheritance obliges and donees who failed to file should be precluded from the
payment; provided, however,
that a successor who makes qualified acceptance may
not preclude known inheritance obliges and donees.
3 a successor who makes
qualified acceptance shall demand each of known
inheritance obliges and donees the filing.
4 The public notice in paragraph
1 shall be made on the official gazette.
Article 928 Refusal of Performance before Expiration of Public Notification Period
A person who has made
qualified acceptance may refuse to make performance to
an inheritance obligee or donee before the expiration of the notification
period of
paragraph 1 of the preceding Article.
Article 929 Performance after Expiration of Public Notification Period
After
the expiration of the period in paragraph 1 of Article 927, a person who
has made qualified acceptance shall use the inherited
property to make performance
to inheritance obligees who have made the application of the same paragraph within
the period prescribed,
and any other known inheritance obligees, proportionally
according to the amount of each claim; provided that this may not prejudice
the
rights of an obligee with priority rights.
Article 930 Performance of Obligation etc. Not Yet Due
1 A person who has made
qualified acceptance must make performance even of a
claim which is not yet due in accordance with the provision of the preceding
Article.
2 Conditional claims and claims of indefinite duration shall be performed in
accordance with an evaluation by an
appraiser appointed by the family court.
Article 931 Performance to Donees
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-
A person who has made qualified acceptance may not make performance to a donee
unless each of the inheritance obligees has been
paid in accordance with the
provisions of the preceding two Articles.
Article 932 Auction of Inherited Property for Performance
of Obligation
If it is necessary to sell inherited property in order to perform in accordance with
the provisions of the preceding
three Articles, a person who has made qualified
acceptance shall put that property to auction; provided that this auction may be
averted by paying the entire or partial value of the inherited property in accordance
with an evaluation by an appraiser appointed
by the family court.
Article 933 Participation of Inheritance Obligees and Donees in Evaluation
Proceedings
Inheritance obligees
and donees may, by their own expense, participate in an
auction or appraisal of inherited property. In this case, the provisions
of paragraph
2 of Article 260 shall apply mutatis mutandis.
Article 934 Liability for Unfair Performance etc. of Person who
has Made Qualified
Acceptance
1 If a person who has made qualified acceptance fails to make the public
notification or notice
referred to in Article 927, or has made performance to an
inheritance obligee or donee within the period of paragraph
1 of the same
Article thereby precluding performance to any other inheritance obligee or donee,
that person shall be liable
to compensate for damages arising from this. If he/she
has made performance that violates the provisions of Articles 929 to 931
inclusive,
he/she shall be liable to compensate for damages arising from this.
2 The provision of the preceding paragraph shall
not prevent a claim for damages
against an inheritance obligee or donee who has accepted unfair performance with
knowledge by
another inheritance obligee or donee.
3 The provision of Article 724 shall apply mutatis mutandis to the cases referred
to in
the preceding two paragraphs.
Article 935 Inheritance Obligees or Donees who have not Made Application within
Period of Public
Notification
An inheritance obligee or donee who fails to make the application referred to in
paragraph 1 of Article 927 within
the period prescribed, and was unknown to the
person who has made qualified acceptance, may only exercise his/her rights over the
residual assets; provided that this shall not apply to persons who have a security
over specific MSOffice8 inherited property.
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Article 936 Administration of Inherited Property where Two or more Heirs
1 In the case where there are two or more heirs, the family court shall appoint an
administrator of the inherited property from amongst the heirs.
2 The administrator of the inherited
property of the preceding paragraph shall
undertake all necessary acts to administer the inherited property and perform any
obligation
on behalf of the heirs.
3 The provisions of Article 926 to 935 inclusive shall apply mutatis mutandis to an
administrator of
the inherited property of paragraph 1 . In this case, 'within five
days of making that qualified acceptance' in paragraph 1
of Article 927 shall be
read as 'within ten days of the appointment of an administrator of the inherited
property'.
Article
937 Inheritance Obligees Where There is Cause for Statutory Unconditional
Acceptance
If there is a cause listed in item i or
item iii of Article 921 relating to one or
several joint heirs who have made qualified acceptance, an inheritance obligee may
exercise his/her rights over the portion of his/her claim not satisfied by the inherited
property against those joint heirs according
to the share in inheritance of each.
Section 3 Renunciation of Inheritance
Article 938 Method of Renunciation of Inheritance
A person who intends to renounce inheritance shall make a statement to that
effect to the family court.
Article 939 Effect of
Renunciation of Inheritance
A person who has renounced inheritance shall be deemed as not originally having
been an heir to the
inheritance.
Article 940 Administration by Person who has Renounced Inheritance
1 A person who has renounced inheritance shall
continue the administration of
inherited property with the same care he/she would exercise over his/her own
property until the
person who has become an heir by that renunciation has
commenced administration of the inherited property.
2 Article 645, Article
646, paragraphs 1 and 2 of Article 650, paragraphs 2
and paragraph 3 of Article 918 shall apply mutatis mutandis
to the case referred
to in the preceding paragraph.
Article 941 Separation of Property by Claim of Inheritance Obligees or Donees
1 An inheritance obligee or a donee may make an application to the family court
-
46 -
for a separation of inheritance property from the property of an heir within three
months of the time of commencement of
inheritance. The application may be filed
even after that period has elapsed if the inherited property has not been mixed
with
the heir's own property.
2 If the family court has made a ruling for separation of property pursuant to the
application of the
preceding paragraph, the applicant shall give public notice
within five days to the effect that an order for separation of property
has been
made and that applications for entry into distribution proceedings should be made
within a specified period. In this
case, that period shall be not less than two
months.
3 The public notice of the provisions of the preceding paragraph shall
be listed in
the official gazette.
Article 942 Effect of Separation of Property
A person who has made an application for separation
of property or a person who
has applied for entry into distribution proceedings pursuant to the provisions of
paragraph 2 of
the preceding Article shall receive performance with priority over
the obligees of an heir regarding the inherited property.
Article
943 Administration of Inherited Property after Claim for Separation of
Property
1 If an application for separation of property
is made, the family court may order
any necessary disposition for the administration of the inherited property.
2 The provisions
of Articles 27 to 29 inclusive shall apply mutatis mutandis to the
case where the family court appoints an administrator pursuant
to the provision of
the preceding paragraph.
Article 944 Administration by Heir after Application for Separation of Property
1 Even after an heir has made unconditional acceptance, if there has been an
application for separation of property, he/she shall administer the inherited
property with the same care he/she would exercise over his/her own property;
provided that this shall not apply if the family
court has appointed an
administrator of the inherited property.
2 The provisions of Articles 645 to 647 inclusive and paragraphs
1 and 2 of
Article 650 shall apply mutatis mutandis to the case referred to in the preceding
paragraph.
Article 945
Requirement of Perfection, against Third Party regarding Real Estate in
the Case of Separation of Property
A separation of property
regarding real estate may not be asserted against a third
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party unless the separation
is registered.
Article 946 Application Mutatis Mutandis of Provisions regarding Extension of
Security Interest to the Proceeds
of Collateral
The provisions of Article 304 shall apply mutatis mutandis to the case of
separation of property.
Article 947 Performance
to Inheritance Obligees and Donees
1 Before the expiration of the period in paragraphs 1 and 2 of Article 941, an
heir
may refuse to make performance to an inheritance obligee or donee.
2 If an application for separation of property has been made,
an heir shall use the
inherited property to make performance to any inheritance obligee or donee who
has made an application
for separation of property or entry into distribution
proceedings proportionally according to the amount of each claim, after the
expiration of the period of paragraph 2 of Article 941; provided however, that
this may not prejudice the rights of an
obligee with priority rights.
3 The provisions of Articles 930 to 934 inclusive shall apply mutatis mutandis to
the case referred
to in the preceding paragraph.
Article 948 Performance from Heir's Own Property
A person who has made an application for separation
of property or a person who
has applied for entry into distribution proceedings may exercise his/her rights
against an heir's own
property only in the case where he/she was not able to receive
performance in full from the inherited property. In this case, t
his
person may receive performance with priority over the obligees of an heir.
Article 949 Prevention etc. of Application for Separation
of Property
An heir may use his/her own property to make performance to an inheritance
obligee or donee, or provide reasonable
security, and thereby prevent an application
for separation of property or have its effect extinguished; provided that this shall
not
apply if an obligee of the heir expresses an objection and can prove that he/she would
receive damage from this.
Article 950
Separation of Property by Application of Obligee of Heir
1 While an heir may make qualified acceptance, or while the inherited
property
has not been mixed with the heir's own property, an obligee of the heir may make
an application to the family court
for a separation of property.
2 The provisions of Article 304, Article 925, Articles 927 to 934 inclusive, Articles
943 to 945
inclusive, and Article 948 shall apply mutatis mutandis to the case
referred to in the preceding paragraph; provided, however,
that the public
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notification and notice of Article 927 shall be made by an
obligee who has made an
application for separation of property.
Chapter 6 Nonexistence of Heir
Article 951 Formation
of Juridical Person for Inherited Property
If it is not evident whether an heir exists, an estate that would be inherited shall
be as a juridical person.
Article 952 Appointment of Administrator of Inherited Property
1 In the case referred to in the preceding
Article, the family court shall appoint an
administrator of inherited property upon the application of an interested party or a
public prosecutor.
2 If an administrator of inherited property has been appointed pursuant to the
provisions of the preceding paragraph, the family court shall
give public notice of
this without delay.
Article 953 Provisions Relating to Administrator of Absentee's Property to be
Applied
Mutatis Mutandis
The provisions of Articles 27 to 29 inclusive shall apply mutatis mutandis to the
administrator of inherited property
referred to in paragraph 1 of the preceding
Article in this Chapter, 'administrator of inherited property' .
Article 954
Reporting by Administrator of Inherited Property
If there is an application by an inheritance obligee or donee, an administrator
of
inherited property shall report the status of the inherited property to the person who
has made the application.
Article 955
Non-formation of Juridical Person for Inherited Property
If it has become evident that there is an heir, the juridical person of
Article 951
shall be deemed not to have been formed; provided, however, that this shall not
prevent the effect of acts done by an
administrator of inherited property within the
administrator's authority.
Article 956 Extinguishment of Authority of Representation
of Administrator of
Inherited Property
1 The authority of representation of an administrator of inherited property shall
be
extinguished from the time that an heir accepts inheritance.
2 In the case referred to in the preceding paragraph, the administrator
of inherited
property shall make an account of profit and loss to the heir without delay.
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Article 957 Performance to Inheritance Obligees and Donees
1 If the existence of an heir has not become evident
within two months of the
public notice of paragraph 2 of Article 952, an administrator of inherited
property shall, without
delay, give public notice to all inheritance obligees and
donees to the effect that a claim for performance should be made within
a specified
period. In this case, the period shall be not less than two months.
2 The provisions of paragraphs 2 to 4
inclusive of Article 927 and Articles 928
to 935 excluding the proviso to Article 932 shall apply mutatis mutandis
to the
case referred to in the preceding paragraph.
Article 958 Public Notice of Search for Heir
If, after the expiration of
the period in paragraph 1 of the preceding Article, it is
still not evident whether an heir exists, the family court shall,
upon the application
of an administrator of inherited property or a public prosecutor, give public notice to
the effect that if there
is an heir, he/she should assert his/her right within a fixed
period. In this case, the period shall be not less than six months.
Article 958-2 Case where No Person Claims a Right
If there is no person who asserts a right as an heir within the period of the
preceding Article, an heir, or any obligee or donee unknown to the administrator of
inherited property, may not exercise his/her
right.
Article 958-3 Distribution of Inherited Property to Person with Special Connection
1 In the case referred to in the preceding
Article, the family court may, if it finds
it reasonable, upon application by a person who shared a livelihood with the
decedent,
a person who contributed to the medical treatment and nursing of the
decedent, or any other person who had a special connection
with the decedent,
grant such person the remaining amount of the inherited property after
liquidation, in whole or in part.
2 The application of the preceding paragraph must be made within three months
of the expiration of the period in Article 958.
Article 959 Residual Assets to Belong to National Treasury
Inherited property that has not been disposed of pursuant to the provisions
of the
preceding Article shall belong to the National Treasury. In this case, the provisions
of paragraph 2 MSOffice13 of
Article 956 shall apply mutatis mutandis.
Chapter 7 Wills
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Section 1 General Provisions
Article
960 Formalities for Will
No will shall take effect unless made in accordance with the formalities provided in
this Act.
Article
961 Capacity to Make Will
Any person who has attained 15 years of age may make a will.
Article 962
The provisions of Article
5, Article 9, Article 13 and Article 17 shall not apply to a
will.
Article 963
At the time of making a will, a testator shall
have the capacity to do so.
Article 964 Comprehensive and Specific Testamentary Gifts
A testator may make a disposition of his/her
property, in whole or in part,
comprehensive or specific title s ; provided that this may not violate provisions
regarding
legally reserved portion.
Article 965 Provisions Relating to Heirs to be Applied Mutatis Mutandis
The provisions of Article 886
and Article 891 shall apply mutatis mutandis to a
testamentary donee.
Article 966 Limitations on Will of Person under Guardianship
1 If a person under guardianship makes a will to the benefit of a guardian or the
guardian's spouse or lineal relative before
the completion of a profit and loss
account for guardianship, that will shall be void.
2 The provision of the preceding paragraph
shall not apply in the case where a
lineal relative, spouse, or sibling of the ward is a guardian.
Part 2 Formalities
of Wills
Subsection 1 Ordinary Formality
Article 967 Types of Will Made by Ordinary form
A will shall be made
by holograph document, notarized document, or sealed and
notarized document; provided that this shall not apply to the case where
it is
permissible to use a special method.
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Article 968 Will by Holograph Document
1 To make a will by holograph document the testator must write the entire text,
the date, and his/her name in his/her own
hand and affix his/her seal.
2 Unless, for an insertion, deletion or any other alteration to the handwritten
certificate,
the testator indicates the place of alteration, makes a specifically signed
addition to the effect that it has been changed, and
furthermore affixes his/her seal
to the place that has been altered, it shall have no effect.
Article 969 Will by Notarized Document
A will by notarized document shall be made in compliance with the following items:
i no fewer than two witnesses shall
be in attendance;
ii the testator shall give oral instruction of the tenor of the will to a notary
public;
iii a notary public shall take dictation from the testator and read this aloud, or
allow inspection, to the testator
and witnesses;
iv the testator and witnesses shall each sign, and affix his/her seal to, the
certificate after
having approved its accuracy; provided, however, that in the case
where a testator is unable to sign, a notary public may
sign on his/her behalf,
with supplementary registration giving the reason for that; and
v a notary public shall
give supplementary registration to the effect that the
certificate has been made in compliance with the formalities listed
in each of the
preceding items, sign this, and affix his/her seal.
Article 969-2 Special Provisions for Will by Notarized
Document
1 In the case where a will by notarized document is made by a person who cannot
speak, the testator shall make
a statement of the tenor of the will through an
interpreter, or by his/her own hand, in lieu of the oral instruction of item
ii of
the preceding Article. In this case, in the application of the provision of item iii
of the same Article, 'oral
instruction' in that item shall become 'statement through
an interpreter, or by his/her own hand'.
2 In the case where the
testator or a witness of the preceding Article is deaf, a
notary public may convey the written contents of the provision of item iii of the
same Article to
the testator or witness through an interpreter, in lieu of the
reading aloud provided for in the same item.
3 If a notarized
document has been made in compliance with the formalities
provided for in the preceding paragraphs 1 and 2 , a notary
public shall give
supplementary registration on the certificate to this effect.
Article 970 Will by Sealed and Notarized Document
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A will by sealed and notarized document shall be made in compliance with
the
following formalities:
i the testator shall sign, and affix his/her seal to, the certificate;
ii the testator
shall seal the certificate and, using the same stamp as that used
for the certificate, affix his/her seal;
iii the
testator shall submit the sealed certificate before one notary public and
not less than two witnesses, with a statement
to the effect that it is his/her own
will, giving the author's name and address;
iv after having entered the date
of submission of the certificate and the
statement of the testator upon the sealed document, a notary public shall,
together with the testator and witnesses, sign it and affix his/her seal; and
2 The provision of paragraph 2
of Article 968 shall apply mutatis mutandis to
the making of a will by sealed and notarized document.
Article 971 Effect
of Will by Sealed and Notarized Document Failing to Satisfy
Formalities
Even a will by sealed and notarized document which fails
to satisfy the formalities
provided for in the preceding Article shall have effect as a will made by holograph
document, if prepared
in accordance with the formalities provided for in Article 968.
Article 972 Special Provisions for Will by Sealed and Notarized
Document
1 In the case where a will by sealed and notarized document is made by a person
who cannot speak, the testator
shall make a statement to the effect that the
certificate is one's own will, giving the author's name and address through an
interpreter, or by his/her own hand upon the sealed document, in lieu of the
statement of item iii of paragraph 1
of Article 970.
2 In the case referred to in the preceding paragraph, if a testator has given a
statement through an
interpreter, a notary public shall make an entry on the
sealed document to that effect.
3 In the case referred to in paragraph
1 , if the testator has written on the sealed
document is in his/her own hand, a notary public shall make an entry to that effect
on the sealed document in lieu of the entry of statement in the provision of item
iv of paragraph 1 of Article 970.
Article 973 Will of an Adult Ward
1 For an adult ward to make a will at a time that his/her decision-making capacity
has
recovered temporarily, not less than two doctors shall be in attendance.
2 A doctor in attendance of the making of a will
shall make an entry on the will to
the effect that the testator was not in a condition lacking decision-making capacity
at the
time of making the will, sign it, and affix his/her seal; provided that in the
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case of a will by sealed and notarized document, he/she shall make an entry to that
effect on the sealed document,
sign it, and affix his/her seal.
Article 974 Causes of Disqualification of Witness or Observer
The following persons may not
be a witness or observer to a will:
i a minor;
ii a presumed heir, donee, or a spouse or lineal relative of either;
or
iii a spouse, relative within four degrees, secretary, or employee of a notary
public.
Article 975 Prohibition
of Joint Wills
A will may not be made by two or more persons on the same certificate.
Subsection 2 Special Formalities of Wills
Article 976 Will Made by Person Rapidly Approaching
Death
1 If a person who is rapidly approaching death due to illness or another reason
intends to make a will, he/she may
do so in the attendance of not less than three
witnesses by giving oral instruction of the tenor of the will to one of the witnesses.
In this case, the person who received the oral instruction shall enter this, read it
aloud, or allow inspection, to the testator
and other witnesses, and after each
witness has approved the accuracy of that entry, sign it, and affix his/her seal.
2
In the case where a person who cannot speak makes a will pursuant to the
provisions of the preceding paragraph, the testator shall
state of the tenor of that
will through an interpreter before the witnesses, in lieu of the oral instruction of
the same paragraph.
3 In the case where the testator, or a witness, referred to in the second sentence of
paragraph 1 is deaf, the
person who has received the statement or oral
instruction of the tenor of the will shall convey to the testator or other witnesses
the written contents referred to in the provision of that sentence through an
interpreter in lieu of the reading aloud provided
for in that sentence.
4 For a will made pursuant to the provisions of the preceding three paragraphs,
effect shall not arise
unless it has been confirmed by the family court on the
application of one of the witnesses or an interested party within twenty
days of the
creation of the will.
5 The family court may not confirm a will referred to in the preceding paragraph
unless
it is convinced that the will captured the true intention of the testator.
Article 977 Will Made by Person with Infectious Disease
in Quarantine
A person who is isolated through an administrative disposition due to an infectious
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disease may make a will in the attendance of one police official and at least one
witness.
Article
978 Will Made by Person on Vessel
A person on a ship may make a will in the attendance of the ship's captain or a
clerk, and at
least two witnesses.
Article 979 Will Made by Person on Ship Meeting Disaster
1 In the case where a ship meets disaster, a person
who is on that ship and
rapidly approaching death may make a will orally in the attendance of at least two
witnesses.
2 In
the case where a person who cannot speak makes a will pursuant to the
provision of the preceding paragraph, the testator shall
do so through an
interpreter.
3 The effect of a will made in compliance with the provisions of the preceding two
paragraphs
shall not arise unless a witness makes an entry of its tenor, signs this,
affixes his/her seal, and furthermore, it gains confirmation
by the family court on
the application made without delay by one of the witnesses or an interested party.
4 The provision of
paragraph 5 of Article 976 shall apply mutatis mutandis to
the case described in the preceding paragraph.
Article 980
Signature and Seal of Relevant Parties to a Will
In the cases described in Article 977 and Article 978, a testator, author, observer,
or witness shall sign and affix his/her seal to each will.
Article 981 Case Where Signature or Seal Is Impossible
In the cases
described in Articles 977 to 979 inclusive, if there is a person who is
unable to sign or affix his/her seal, an observer or witness
shall make supplementary
registration of the reason for that.
Article 982 Provisions Relating to Will by Ordinary Formalities
to be Applied
Mutatis Mutandis
The provisions of paragraph 2 of Article 968 and Articles 973 to 975 inclusive
shall
apply mutatis mutandis to a will made pursuant to the provisions of Articles
976 to 981.
Article 983 Effect of Will Made by Special
Formalities
The effect of a will made pursuant to the provisions of Article 976 to 982 inclusive
shall not arise if a testator survives for a period of
six months from the time they
recover the ability to make a will by ordinary formalities.
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Article 984 Formalities for Japanese National in Foreign Country
For a Japanese national in a foreign country
where a Japanese consulate is
stationed to make a will by notarized document, or a sealed and notarized document,
the duties of a
notary public shall be undertaken by the consulate.
Section 3 Effect of Will
Article 985 When Effect of Will Arises
1 A will takes effect at the time of the testator's death.
2 In the case where a will is subject to a condition precedent,
if that condition is
fulfilled after the death of the testator, the will shall take effect from the time that
condition is fulfilled.
Article 986 Renunciation of Testamentary Gift
1 A testamentary donee may renounce a testamentary gift at any time after the
death of a testator.
2 The renunciation of a testamentary gift shall have retroactive effect from the
time of the testator's
death.
Article 987 Notice to Testamentary Donees for Acceptance or Renunciation of a
Testamentary Gift
A person with a duty
of testamentary gift in this Section, a person who bears a
duty to perform a testamentary gift or any other interested party
may give notice to
a testamentary donee to the effect that acceptance or renunciation of a testamentary
gift should be made within
a specified period, fixing a period that is reasonable. In
this case, if a donee does not indicate his/her intention to a person
with a duty of
testamentary gift within that period, the testamentary gift shall be deemed to have
been accepted.
Article 988
Acceptance or Renunciation of Testamentary Gift by Heir or
Testamentary Donee
If a testamentary donee dies without having made
acceptance or renunciation of a
testamentary gift, the heir of that person may accept or renounce the testamentary
gift within the
extent of his/her share in inheritance; provided that if the testator has
indicated a particular intent in his/her will, this intent
shall be complied with.
Article 989 Revocation and Rescission of Acceptance and Renunciation of
Testamentary Gift
1 Acceptance
or renunciation of a testamentary gift may not be revoked.
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2 The provisions
of paragraphs 2 and 3 of Article 919 shall apply mutatis
mutandis to acceptance and renunciation of a testamentary
gift.
Article 990 Rights and Duties of Testamentary Donee by a Universal Succession
A testamentary donee by a universal succession
shall have the same rights as an
heir.
Article 991 Claim for Security by a Testamentary Donee
While a testamentary gift is not
due, a testamentary donee may make a claim for
reasonable security from a person having an obligation with respect to testamentary
gift. The same shall also apply for a testamentary gift with a condition precedent
while the outcome of that condition is unknown.
Article 992 Collecting Fruits of Testamentary Gift
A testamentary donee may collect the fruits of a testamentary gift from the
time
that they are able to make a claim for the performance of that gift; provided that if
the testator has indicated a particular
intent in his/her will, that intent shall be
complied with.
Article 993 Claim for Reimbursement of Expenses Incurred by Person
with Duty of
Testamentary Gift
1 The provisions of Article 299 shall apply mutatis mutandis to the case where
expenses have
been incurred by a person with a duty of testamentary gift in
respect of the object of the testamentary gift after the death of
the testator.
2 An application for reimbursement may be made for normal necessary expenses
incurred in collecting the fruits
of a testamentary gift, limited to an amount not
exceeding the value of those fruits.
Article 994 Lapse of Testamentary Gift through Death of Donee
1 The effect of a testamentary
gift shall not arise if the testamentary donee dies
before the death of the testator.
2 The preceding paragraph shall also
apply if, in the case of a testamentary gift
with a condition precedent, the testamentary donee dies before the fulfillment of
that condition; provided, however, that if the testator has indicated a particular
intent in his/her will, that intent shall
be complied with.
Article 995 Ownership of Property in Case of Invalidation or Lapse of Testamentary
Gift
If the effect of a
testamentary gift does not arise, or if its effect is lost by
renunciation, that which should have been received by the testamentary
donee shall
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belong to the heir s ; provided, however, that if the testator
has indicated a
particular intent in his/her will, that intent shall be complied with.
Article 996 Testamentary Gift of Rights
Not Belonging to Inherited Property
A testamentary gift shall not take effect if the rights which are the object of that
gift did
not belong to the inherited property at the time of the testator's death;
provided, however, that this shall not apply if it is found
that those rights were made
the object of a testamentary gift regardless of whether such rights belong to the
inherited property.
Article 997
1 If a testamentary gift, the object of which are rights that do not belong to the
inherited property, has effect
pursuant to the provision of the proviso to the
preceding Article, the person with a duty of testamentary gift shall bear a duty
to
obtain those rights and transfer them to the testamentary donee.
2 In the case referred to in the preceding paragraph, if
the rights referred to in
that paragraph cannot be obtained, or if obtaining them requires excessive
expenses, a person with
a duty of testamentary gift shall give compensation to the
value of those rights; provided, however, that if the testator has indicated
a
particular intent in his/her will, that intent shall be complied with.
Article 998 Warranty Liability of Person Having Obligation
for to Testamentary Gift
for Unspecified Things
1 In the case where a testamentary gift has as its object unspecified Things but
a
third party as a rightful claimant retakes them from a testamentary donee, a
person having an obligation in relation to testamentary
gift shall be liable under
the same warranty with respect to those unspecified Things, just as a seller.
2 In the case where
a testamentary gift has as its object unspecified Things, if
those goods are defective, a person having an obligation in relation
to testamentary
gift shall exchange them for Things that are not defective.
Article 999 Extension of Testamentary Gift over Right
to Claim from Third Party
1 If a testator has a right to claim compensation from a third party resulting from
loss or alteration,
or loss of possession, of the object of a testamentary gift, that
right shall be presumed to have been an object of the testamentary
gift.
2 In the case of accession or mixture of the object of a testamentary gift with other
Things, if a testator has become
a sole owner or co-owner of a compound or mixture
pursuant to the provisions of Articles 243 to 245 inclusive, that entire ownership,
or share, shall be presumed to have been an object of the testamentary gift.
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-
Article 1000 Testamentary Gift of Property Subject to the Rights of Third party
If Things or rights being the object of a testamentary
gift were the object of the
rights of a third party at the time of the testator's death, a testamentary donee may
not demand a person
having an obligation with respect to testamentary gift to
extinguish the third party's rights; provided, however, that this shall
not apply if the
testator has indicated a contrary intent in his/her will.
Article 1001 Extension of Testamentary Gift over Things Received for Satisfaction
of
Claim
1 In the case where a claim is the object of a testamentary gift, if the testator has
received performance for that
claim and the received Things are already with the
inherited property, those Things shall be presumed to have been an object of
the
testamentary gift.
2 In the case where money is the object of a claim which is the object of a
testamentary gift, that
money shall be presumed to have been an object of the
testamentary gift even if there are insufficient funds equivalent to that
claim in
the inherited property.
Article 1002 Testamentary Gift with Burden
1 A person who has received a testamentary gift
with burden shall bear a
responsibility to perform the duties borne, limited to an amount not exceeding the
object of the testamentary
gift.
2 If a testamentary donee has renounced a testamentary gift with burden, the
person who would have received gain from
the discharge of burden may become a
testamentary donee him/herself; provided that if the testator has indicated a
particular
intent in his/her will, that intent shall be complied with.
Article 1003 Discharge of Testamentary Donee of Testamentary Gift with
Burden
If the value of an object of a testamentary gift with burden is reduced due to the
qualified acceptance of an heir, or a
filing for recovery of legally reserved portion, a
testamentary donee may avoid the duties borne from that testamentary gift,
proportional
to the reduction; provided, however, that if the testator has indicated a
particular intent in his/her will, that intent shall be
complied with.
Section 4 Execution of Will
Article 1004 Probate of Will
1 A custodian of a will, after coming to
know of the commencement of inheritance,
shall without delay submit the will to the family court and apply for probate. In
the case where there is no custodian of a will, the same shall apply after an heir
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discovers the will.
2 The provision of the preceding paragraph shall not apply to a will made by
notarized document.
3 A will that has been sealed may not be opened unless in the family court in the
attendance of an heir or his/her representative.
Article 1005 Civil Fine
A person who fails to submit a will pursuant to the provisions of the preceding
Article, executes a will
without passing through probate, or opens a sealed will in a
place other than a family court shall be made subject to a civil fine
of not more than
50,000 yen.
Article 1006 Designation of Executor
1 A testator may, by will, designate one or several executors,
or entrust that
designation to a third party.
2 A person who has been entrusted with the designation of an executor shall,
without delay, make that designation and inform the heir s of the designation.
3 If a person who has been entrusted with
the designation of an executor intends
to resign from that entrustment, he/she shall notify the heir s to that effect
without
delay.
Article 1007 Commencement of Duties of Executor
If an executor consents to taking office, he/she shall undertake his/her
duties
immediately.
Article 1008 Notice of Taking Office to Executor
An heir or other interested party may, having specified
a reasonable period, make
a demand to an executor to the effect that that he/she make a definite answer within
that period as to
whether he/she consents to taking office. In this case, if the
executor does not make a definite answer to the heir within
this period, he/she shall
be deemed to have consented to taking office.
Article 1009 Causes for Disqualification of Executor
A minor or a bankrupt may not become an executor.
Article 1010 Appointment of Executor
If an executor does not exist, or the
office becomes vacant, the family court may
appoint an executor on the application of an interested party.
Article 1011 Preparation of Inventory of Inherited Property
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1 An executor shall, without delay, prepare an inventory of inherited property and
deliver
this to the heir s .
2 On the application of an heir, an executor shall prepare an inventory of inherited
property in the heir's
attendance, or have a notary public create the inventory.
Article 1012 Rights and Duties of Executor
1 An executor shall have
the rights and duties of administration of inherited
property and all other necessary acts for the execution of a will.
2 The
provisions of Articles 644 to 647 inclusive and 650 shall apply mutatis
mutandis to an executor.
Article 1013 Prohibition of
Interference with Execution of Will
In the case where there is an executor, an heir may not make a disposition of
inherited property
or any other act that interferes with the execution of the will.
Article 1014 Execution of Will concerning Specified Property
In the case where a will concerns specified property in the inherited property, the
provisions of Articles 1011 to 1013 inclusive
shall only apply to that specified
property.
Article 1015 Status of Executor
An executor shall be deemed the representative of
the heir s .
Article 1016 Executor's Right to Appoint Subagent
1 An executor may not allow a third party to undertake the duties
of an executor
unless there are justifiable reasons; provided, however, that this shall not apply if
the testator has indicated
a contrary intent in his/her will.
2 In the case where an executor has allowed a third party to undertake the duties
of an executor
pursuant to the provision in the proviso to the preceding paragraph,
the executor shall owe the responsibility referred to in Article
105 to the heir s .
Article 1017 Execution of Duties Where Two or More Executors
1 In the case where there are two or more executors,
execution of their duties shall
be decided by majority; provided, however, that this shall not apply if the testator
has indicated
a contrary intent in his/her will.
2 Despite the provision of the preceding paragraph, each executor may undertake
an act of
preservation.
Article 1018 Remuneration of Executor
1 The family court may determine the remuneration of an executor according
to
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the status of the inherited property and other circumstances; provided
that this
shall not apply in the case where a testator has specified remuneration in his/her
will.
2 The provisions of
paragraphs 2 and 3 of Article 648 shall apply mutatis
mutandis to the case where an executor receives remuneration.
Article 1019 Dismissal and Resignation of Executor
1 If an executor has failed to perform his/her duties, or if there is
any other
justifiable reason, an interested party may apply to the family court for the
dismissal of that executor.
2 An
executor may resign from his or her duties with the permission of the family
court if there is a justifiable reason.
Article
1020 Mandate Provisions to be Applied Mutatis Mutandis
The provisions of Article 654 and Article 655 shall apply mutatis mutandis
to the
case of termination of duties of an executor.
Article 1021 Burden of Expenses Relating to Execution of Will
Expenses relating
to the execution of a will shall be borne by the inherited
property; provided, however, that legally reserved portion may not be
reduced by
this.
Section 5 Revocation and Rescission of Will
Article 1022 Revocation of Will
A testator may at
any time revoke a will in whole or in part in compliance with the
formailities for a will.
Article 1023 Conflict between Previous
and Later Will
1 If there is a conflict between a previous and later will, the later will shall be
deemed as having revoked
the previous will with respect to the part that is in
conflict.
2 The provision of the preceding paragraph shall apply mutatis mutandis to the
case where a will
conflicts with a disposition or other juristic act made while the
testator was still alive.
Article 1024 Destruction of Will
or Things made the Object of Testamentary Gift
If a testator intentionally destroys a will, this shall be deemed a revocation of
the
will with respect to the part that has been destroyed. The same shall apply if the
testator has intentionally destroyed
goods the object of a testamentary gift.
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Article 1025 Effect of Will That
Has Been Revoked
The effect of a will that has been revoked pursuant to the provisions of Articles
1022 to 1024 inclusive shall
not be recovered even if the act of revocation is revoked,
rescinded, or invalidated; provided, however, that this shall not apply
in the case
where the act was the result of fraud or duress.
Article 1026 Prohibition of Waiver of Right to Revocation
A testator
may not waive the right to revoke a will.
Article 1027 Rescission of Will concerning Testamentary Gift with Burden
If a person
who has received a testamentary gift with burden does not perform the
duty imposed thereby, an heir may demand performance of that
duty fixing a
reasonable period to do so. In this case, if there is no performance within that
period, an application may
be made to the family court for rescission of the will
concerning the testamentary gift with burden.
Chapter 8 Legally
Reserved Portion
Article 1028 Entitlement and Amount of Legally Reserved Portion
Heirs other than siblings shall receive, as
legally reserved portion, an amount
equivalent to the ratio prescribed in each of the following items in accordance with
the divisions
listed therein:
i in the case where only lineal descendants are heirs, one third of the decedent's
property;
ii in cases other than that referred to in the preceding item i , one half of the
decedent's property.
Article 1029
Calculation of Legally Reserved Portion
1 Total legally reserved portion shall be calculated as the value of any gifts made
by the decedent added to the value of the property held by the decedent at the time
of commencement of inheritance minus the
entire amount of obligations.
2 The determination of the value of conditional rights or rights of an uncertain
duration
shall be made in accordance with an evaluation by an appraiser appointed
by the family court.
Article 1030
Only a gift made
within one year before the commencement of inheritance shall be
included in the amount calculated pursuant to the provisions of the
preceding Article.
A gift made before one year prior to commencement shall be included in the amount
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calculated pursuant to the provisions of the preceding Article if it was made with the
knowledge of
both parties that it would cause harm to a claimant for legally reserved
portion.
Article 1031 Claim for Abatement of Gift or Testamentary
Gift
A claimant for legally reserved portion, or his/her heir, may claim for abatement of
a testamentary gift, or gift referred
to in the preceding Article, to the extent
necessary to preserve that legally reserved portion.
Article 1032 Partial Abatement
of Gifts and Testamentary Gifts of Conditional
Rights etc.
In the case where a gift or testamentary gift has as its object a right
with
conditions attached or a right of uncertain duration, if that gift or testamentary gift
is to be partially abated, a claimant
for legally reserved portion shall, in accordance
with the amount determined by the provision of paragraph 2 of Article
1029,
deliver the remainder to the beneficiary or donee immediately.
Article 1033 Order of Abatement of Gifts and Testamentary
Gifts
A gift may not be abated until after the abatement of a testamentary gift.
Article 1034 Proportion of Abatement of Testamentary Gift
A testamentary gift shall be abated proportionally
according to the value of the
object of that testamentary gift; provided, however, that if the testator has indicated
a particular
intent in his/her will, that intent shall be complied with.
Article 1035 Order of Abatement of Gifts
A later gift shall be abated
before an earlier gift.
Article 1036 Return of Fruits of Gift by Beneficiary
A beneficiary, in addition to the property to be
returned, shall return the fruits of
that property obtained after the day a claim for abatement was made.
Article 1037 Burden of
Loss Due to Insolvency of Beneficiary
The burden of loss arising from the insolvency of a beneficiary subject to
abatement shall
lie with the claimant for legally reserved portion.
Article 1038 Claim for Abatement of Gift with Burden
A claim for abatement
may be made regarding a gift with a burden for the amount
of the object of that gift minus the amount of the burden.
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Article 1039 Act for Value with Inadequate Consideration
An act for value with inadequate
consideration shall be deemed a gift if both
parties had knowledge that it would prejudice a claimant for legally reserved portion.
In this case, if a claimant for legally reserved portion claims for abatement of the
gift, he/she shall reimburse the consideration
given for the act.
Article 1040 Object of Gift Assigned by Beneficiary etc.
1 If a beneficiary of gift subject to abatement
has assigned the object of a gift to
another person, he/she must compensate that amount to a claimant for legally
reserved portion;
provided, however, that if the person who received the object of
the gift had knowledge at the time of assignment that this would
prejudice a
claimant for legally reserved portion, a claimant for legally reserved portion may
claim for abatement of the object
of the gift.
2 The provision of the preceding paragraph shall apply mutatis mutandis to the
case a beneficiary establishes rights
with regard to the object of a gift.
Article 1041 Compensation by Value to Claimant for Statutory Reserved Portion
1 A beneficiary
or donee may avoid a duty to refund by compensating a claimant
to statutory reserved portion the value of the object of the gift
or testamentary gift,
to the extent subject to abatement.
2 The provision of the preceding paragraph shall apply mutatis mutandis
to the
case referred to in the proviso to paragraph 1 of the preceding Article.
Article 1042 Limitation on Period for Claim
for Abatement
If a claimant for legally reserved portion, within one year from the time of knowing
of commencement of inheritance
and the existence of a gift or testamentary gift
which may be abated, does not exercise the claim of abatement, it shall be
extinguished
by prescription. This shall also apply if ten years have passed since the
time of commencement of inheritance.
Article 1043 Renunciation
of Legally Reserved Portion
1 Renunciation of legally reserved portion before the commencement of inheritance
shall only have
effect upon receiving permission from the family court.
2 The renunciation of legally reserved portion by one joint heir shall
have no effect
upon the legally reserved portion of another joint heir.
Article 1044 Provisions regarding Heirs per Stirpes and
Share in Inheritance to be
Applied Mutatis Mutandis
he provisions of paragraph 2 and paragraph 3 of Article 887,
Article 900,
Article 901, Article 903, and Article 904 shall apply mutatis mutandis to legally
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reserved portion.
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