| Project/Area Number |
17530005
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
Fundamental law
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| Research Institution | Niigata University |
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Principal Investigator |
MINAMIKATA Satoshi Niigata University, Institute of Humanities, Social Sciences and Education, Professor (70125805)
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| Co-Investigator(Kenkyū-buntansha) |
TSURUMAKI Katsunori Niigata University, Institute of Humanities, Social Sciences and Education, Professor (90377169)
TAMAKI Teiko Niigata University, Institute of Humanities, Social Sciences and Education, Assistant Professor (80251784)
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| Project Period (FY) |
2005 – 2007
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| Project Status |
Completed (Fiscal Year 2007)
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| Budget Amount *help |
¥2,940,000 (Direct Cost: ¥2,700,000、Indirect Cost: ¥240,000)
Fiscal Year 2007: ¥1,040,000 (Direct Cost: ¥800,000、Indirect Cost: ¥240,000)
Fiscal Year 2006: ¥900,000 (Direct Cost: ¥900,000)
Fiscal Year 2005: ¥1,000,000 (Direct Cost: ¥1,000,000)
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| Keywords | Family disputes / Personal Affairs Litigation / Kaji Choutei / Mediation / ADR / Family courts / Choutei commissioner / Comparative study / 合意形成援助(mediation) / 手続的保障 / 家族間紛争 / CAFCASS |
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| Research Abstract |
(1) There are similarities and differences of principles and practices between Japan and England and Wales as for managements for dealing with family disputes, in particular divorce matters.
(2) Under the Personal Affairs litigation Act newly enacted in 2003, it is pointed out that there are incompatible principles in the proceedings for family disputes in order to resolve disputes properly. On one hand, it is emphasized that the procedure should be based on the paternalistic approach for protection of vulnerable members of a family, which seems to be familiar to Choutei procedure, but it is, on the other hand, claimed that it should also include the adversarial factors in order to secure the rights of the parties, which is regarded as a major element of ordinal litigation. Not only in the cases of divorce but also in the custody issues over minors after divorce of their parents, discrepancies in views of academics and practitioners over this issue still remain. For instance, one asserts that a child should be protected under the paternalistic approach of family courts and other relevant institutions when s/he is involved in parents' disputes while the other emphasizes that even a child should be regarded as a subject of the case and treated as one of the parties to divorce.
(3) In England and Wales, the divorce procedure is mainly based on the adversarial principle with some modified procedure, such as out of court mediation. It is observed that the rule of securing and protecting the rights of the vulnerable parties involved in divorce was made by a series of precedents referring to fairness and justice for the parties which might be achieved by well organized institution of solicitor.
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