<論説>親子間の法律関係の準拠法について : その一法例解釈上の問題点

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As the legal relations between parent and child differ variously according to muniaipal laws by which they are governed, the question what law is applicable does necessarily arise when such relations involve the foreign elements-such as foreign nationality or domicile of one or both parties. In our country, such relations are regulated by the Articles of Horei (i.e. the "Law concerning the Application of Law, 1898"). The Article 20 of Horei provides : "The legal relations between parent and child are governed by the law of the country of the father's nationality, or if there is no father, by the law of the country of the mather's nationality." In interpreting this provision, we are faced with following two questions. First, whether this provision only refers to the relationship between parents and legitimate children, or whether it also refers to the one between parents and illegitimate children, or whether it further regulates the relationship between adoptive parents and adopted children, should be determined. The dominant opinion is that the whole parent-child relationships should be included in the scope of the provision, but a strong opposit opinion has been advocated by Prof. Kawakami. It says that there is no reason why the relations between the illegitimate child and his mother should also be governed by the national law of the father, so that the relations between them should be governed by another proper law, and also the relations between the adoptives and the adopted should be governed by the proper law of adoption. This latter view seems to me to have some force, but before admitting its reasonableness, some examinations, which are concerned with the second problem, are needed (pointed out in Chap. II, and detailed in Chap. III). The second question is whether the whole legal relations arising out of a parent-child relationship should be governed by the proper law provided in Art. 20,or some parts of them should be governed by other proper laws. In my view, this problem should be treated in accordance with particular situations (detailed in Chap. III as to parental power, support and other relations in particular situations). Finally, we are confronted with the reform of our choice of law rules. One of the views for the reform advocates the national law of the child as the proper law of parent-child relationships and legal relations. But the difficulties still remain. The entire reform or reconstruction of choice of law rules must be done in order that the court could perform its task of providing the most adequate solution for the case.
関西学院大学の論文
1964-09-30

<論説>親子間の法律関係の準拠法について : その一法例解釈上の問題点

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関西学院大学 | 論文

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