База данных по гендерной проблематике и правам на землю


Права, закрепленные в Конституции

Constitution, 1946:
- Article 11: “The people shall not be prevented from enjoying any of the fundamental human rights. These fundamental human rights guaranteed to the people by this Constitution shall be conferred upon the people of this and future generations as eternal and inviolate rights”.

- Article 12: The freedoms and rights guaranteed to the people by the Constitution shall be maintained by “the constant endeavour of the people, who shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare”.

- Article 13: All people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall be the supreme consideration in legislation and in other governmental affairs, to the extent that it does not interfere with the public welfare.

- Article 14: All people are equal under the law and “there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin”.

- Article 19: Freedom of thought and conscience shall not be violated.

- Article 20: Freedom of religion is guaranteed to all. No religious organization shall receive any privileges from the State, nor exercise any political authority.

- Article 24: Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis.

- Article 24 [2]: With regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.

- Article 27: All people shall have the right and the obligation to work.

- Article 27[2]: Standards for wages, hours, rest and other working conditions shall be fixed by law.

- Article 27 [3]: Children shall not be exploited.

- Article 29: The right to own or to hold property is inviolable.

- Article 29 [2]: Property rights shall be defined by law, in conformity with the public welfare.

- Article 29 [3]: Private property may be taken for public use upon just compensation.

- Article 89: No public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution or association, or for any charitable, educational or benevolent enterprises not under the control of public authority (16).

Права собственности и пользования женщин, закрепленные в Гражданском кодексе, Трудовом кодексе и Семейном кодексе

The Civil Code, 1896, amended in 1947:
 - In accordance with the principle of equality between men and women of the Constitution, the Civil Code was reformed in the Family Law and Inheritance Law sections in 1947 to abolish the legal status of the Ie, the family system that was the basic unit of traditional society, to ensure equality between husband and wife in property rights, inheritance, matrimony, and child care.

- Article 731: The legal age for marriage is 18 years for men and 16 years for women.

- Article 733: A woman may not remarry if six months have not passed since the day of dissolution or rescission of her previous marriage, unless she has conceived a child before the cancellation or dissolution of her previous marriage.

- Article 756: 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 of the husband or wife or a third party, unless registered prior to notification of marriage (17).

- Article 763: Husband and wife may divorce by agreement.

- Article 766: Parents who divorce by agreement will also have to agree on children’s custody and any other related matters. If an agreement is not reached, the Family Court will decide on custody.

- Article 768: One party to a divorce by agreement may claim the distribution of property from the other party. If the parties do not settle on agreement, either party may make a claim to the Family Court for a disposition in lieu of agreement; this claim for distribution of property shall be extinguished at the expiration of two years from the day of divorce. 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 770: Judicial divorce may be requested by either husband or wife: i. if a spouse has committed an act of unchastity; ii. if abandoned by a spouse in bad faith; iii. if it is not clear whether a spouse is dead or alive at least 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.
A court may dismiss a suit for divorce if it finds continuing the marriage reasonable (17).

- Article 755: The property rights and duties of a husband and wife shall be prescribed by provisions of the Civil Code, unless they entered into a contract regarding their property before giving notification of the marriage.

- Article 758: The property rights of a husband and wife may not be altered after notification of marriage.
In case of misadministration of property by one party to a marriage, the other party may make a claim to the Family Court to take over administration of that property. Also, a claim may be made for division of property held in co-ownership.

- Article 759: If an administrator of property has been changed, or property held in co-ownership has been divided, the pre-nuptial contract referred to in Article 755, may not be asserted against the successor.

- Article 762: Property owned by one party before marriage and property obtained in the name of that party during marriage shall be separate property. Property that does not clearly belong to either husband or wife is presumed to be held in co-ownership (17).

- The Labour Standards Act, 1947, Article 4 prohibits wage discrimination between male and female workers (18).

Act on Securing Equal Opportunity and Treatment between Men and Women in Employment, 1972, revised in 2006:
- Article 1: The Act has the purposes of promoting equal opportunity and treatment between men and women in employment in accordance with the principle in the Constitution, and of promoting measures to ensure the health of women workers with regard to employment, during pregnancy and after childbirth.

- Article 2: Workers must be enabled to engage in full working lives without discrimination based on sex for all workers, but with respect for maternity in the case of women workers.

- Article 5: Employers shall provide equal opportunities for all persons, regardless of sex, as to the recruitment and employment of workers.
No discrimination on the basis of sex is to be made in: i. assignment, promotion, demotion, and training of workers; ii. loans for housing and other similar fringe benefits as provided by Ordinance of the Ministry of Health, Labour and Welfare; iii. change in job type and employment status of workers; and iv. encouragement of retirement, mandatory retirement age, dismissal, and renewal of the labour contract.

- Article 9: Employers are prohibited from: i. using marriage, pregnancy or childbirth as a reason for retirement of women workers; ii. dismissing women workers for marriage; iii. giving disadvantageous treatment to women workers by reason of pregnancy, childbirth, or for requesting absence from work for reasons relating to pregnancy, childbirth; iv. dismissing women workers who are pregnant or in the first year after childbirth. However, all of the above do not apply in the event that the employers can prove that dismissals are not by reasons prescribed in the law.

- Employers shall establish necessary measures so that workers do not suffer any disadvantage or do not suffer any harm due to sexual harassment in the workplace.

- Originally promulgated in 1972 as the Act to Promote the Welfare of Working Women, the Act became the Equal Employment Opportunity Act in 1985 when the provisions for equal employment opportunities of male and female workers were added (19).

Наследование/ правовые механизмы

Civil Code, 1896, amended in 1947:
- Article 887: The child of a deceased is an heir or the child’s offspring, if the child has died before commencement of the inheritance. In case there are neither children nor their offspring, the lineal ascendants of the deceased and after them, the siblings, are heirs.

- Article 890: The spouse of a deceased shall always be an heir.

- Article 898: If there are two or more heirs, the inherited property shall belong to those heirs in co-ownership.

- Article 255: If one of the co-owners renounces his/her share or dies without an heir, his/her share shall vest in other co-owners.

- Article 900: If there are two or more heirs of the same rank, their shares in inheritance shall be determined as follow:
i. if a child and a spouse are heirs, the child’s share and the spouse’s share shall be one half each;
ii. if a spouse and lineal ascendant are heirs, the spouse’s share shall be two thirds, and the lineal ascendant’s share shall be one third;
iii. if a spouse and siblings are heirs, the spouse’s share shall be three quarters, and the sibling’s share shall be one quarter; 
iv. if there are two or more children, lineal ascendants, or siblings, the share of each shall be divided equally; provided that the share of an child out of wedlock shall be one half of the share of a child in wedlock, and the share of a sibling who shares only one parent with the decedent shall be one half of the share of a sibling who shares both parents.

- Article 902: A deceased may determine the share in inheritance of joint heirs by will, or entrust a third party to determine the share, provided that the provisions relating to legally reserved portion are not violated (17).

Законодательство о земле

Agricultural Land Law, 1952, amended in 1962, 1970, 1975 and 1980:
- Art. 1:  “Ownership of farmland by the farmer himself is the most appropriate form of ownership.”

- No entity other than the government shall own the following tenant land: i. tenant land located outside the municipality of the person’s address; ii. tenant land within the municipality with average area in excess of one ha, four in Hokkaido. In cases where this happens, the owner must sell the tenant land and the government may forcibly purchase the land and sell it to the tenant of other qualified party.

- Any transfer of rights in agricultural land requires the approval of an administrative agency such as the prefectural governor or Agricultural Committee.

- Approval will not be granted i. when person other than the tenant is to acquire the ownership rights; ii. when the person seeking to acquire the rights does not intend to farm the land personally; iii. when the managed area is less than 0.5 ha, 2 ha in Hokkaido, after acquisition of the land; iv. when the land leased was purchased as a result of the agricultural land reform; v. when the leased land is subleased and vi. when a decrease in productivity is evident.

- Articles. 21-22: Contracts, which prescribe payments of rent in any form other than a fixed amount of money, are null or void. Payment or receipt of farm rent in any form other than money is prohibited.
The 1980 amendment introduced exceptions to the fixed amount of a money payment. Upon receiving approval of the agricultural commission, payment of farm rent may be received in goods, such as home consumption rice, to an extent creating no obstacles to the stability of the farmer’s management.

- Article 23: The parties can claim an increase or a decrease of farm rent, in cases where the farm rent becomes unreasonable due to a rise in prices of farm, products or production costs, or by comparison with rents of similar nearby farmland. If an agreement in not reached, the party receiving the claim may pay the amount he/she retains fair until it is confirmed by a court. After the court makes its judgment, the account is to be cleared with interest added.

- Article 24: If farm rent exceeds 25 percent of the price of harvested rice or 15 percent of the price of the main crops, the tenant farmer my claim reduction in the farm rent to a sum corresponding to the indicated ratios.

- Conversion of agricultural land to other uses requires the approval of the Minister for Agriculture, Forestry and Fisheries or prefectural governor. Conversion that does not constitute an emergency will not be approved (13).

- The 1970 revision included the relaxation of restrictions on the ownership of tenanted farmland and on leasing regulations, the abolition of farmland rent controls, and the establishment of a system under which public corporations - known as agricultural land-holding rationalization corporations - can lease farmland to farmers looking to expand.

- The 1975 revision established an agricultural land use promotion programme providing guarantees to lenders and borrowers of farmland. Leasing rights, that expire automatically at the end of a period, agreed without applying the statutory renewal under the Agricultural Land Law, pass collectively to a pool of many farmers (20).

Basic Act on Land, 1989:
- Article 1: The purpose of the Act is “by way of providing for the basic principles on land, clarifying the responsibilities of the State, local public entities, business operators and citizens with regard to the basic principles on land, and providing for the basic matters on measures concerning land, to comprehensively promote land measures for forming normal supply-and-demand relationships and reasonable land prices while securing proper land use, thereby contributing to improved stability in citizens’ lives and the sound development of the national economy”.

- Article 3: Land shall be properly used according to the natural, social, economic and cultural conditions of its area, in accordance with the plan on land use.

- Article 4: Speculative transactions on land are prohibited.

- Article 5: When the value of land increases due to changes in its area’s social and economic conditions, the person entitled to the land shall be required to bear reasonable burden based on the profits pertaining to such increase in value.

- Article 6: The State and local public entities shall be responsible for formulating and implementing measures on land in conformity to the basic principles on land set forth from the purpose of the Act.

- Article 8: All citizens must respect the Basic Principles on Land when using and transacting in land and also must endeavour to cooperate with the measures on land implemented by the State and local public entities.

- Article 11: The State and local public entities formulate necessary plans on land use by taking into consideration natural, social, economic and cultural conditions including the future outlook of population and industry and trends of land use.

- Article 19: The National Land Council shall study and deliberate matters concerning measures on land and on use of national land in response to the consultation of the Minister of Land, Infrastructure, Transport and Tourism (21).

Promotion of Use of Agricultural Land Law, 1980, amended in 1993:
- Introduced a programme for the utilization and improvement of agricultural land.

- Article 18: Provides for the formulation of agricultural land integration plans, developed and proclaimed by municipalities.
Utilization and other rights, such as usufruct rights, may be created or transferred without the authorization required by Article 3 of the Agricultural Land Law if an agricultural land integration plan is adopted by an agriculture board and proclaimed by a municipality (13).

Меры в области политики/правовые механизмы, реализующие или препятствующие реализации земельных прав женщин

- In 1994, the Government established the Headquarters for the Promotion of Gender Equality within the Cabinet to promote measures aimed at realizing a gender equal society (22).

- The Basic Law for a Gender Equal Society was enacted and came into effect in June 1999, based on the final report compiled by the Council for Gender Equality, an advisory panel to the prime minister (22).

Basic Law for a Gender-equal Society, 1999:
- Under Article 8, the State is responsible for the formulation and implementation of policies related to promotion of a Gender-equal Society.
- Article 9: Local governments are responsible for the formulation and implementation of policies corresponding to national measures, and other policies in accordance with the nature of the areas of local governments.
- Article 10: Citizens shall make efforts to contribute to the formation of a gender-equal society in all areas of society, including workplaces, schools, the local community and the home.
- In 2000, the Government approved the Basic Plan for Gender Equality, the first plan based on the Basic Law for a Gender-equal Society (22).

- Article 26 of the 1999 Basic Law on Food, Agriculture and Rural Areas states that: “in consideration of the importance of securing opportunities for both men and women to participate in all kinds of social activities as equal members of society, the State shall promote the creation of an environment in which women’s roles in farming operations are fairly assessed and women can be provided with opportunities to become involved in farm management and other relevant activities on a voluntary basis” (23).

- The Family Management Agreement, introduced in 1995, is a written form of treaty, which establishes the internal rules governing farming operations and family activities, assigning responsibilities among the family members.
The agreement covers the following matters: i. accord on payment for work done; ii. distribution of farm revenue; iii. working conditions, including working hours, days off, division of labour; iv. succession of farm, including inheritance, but also support to retired parents (24).

- In February 1996, the Legislative Council, an advisory body to the Minister of Justice, submitted a report on revision of the Civil Code that made proposals on:
i. setting of the legal age for marriage at 18 years for both males and females;
ii. choice of surname at time of marriage between the woman’s maiden name and her spouse’s name;
iii. automatic granting of divorce upon request after five years of separation;
iv. equal inheritance for both legitimate and illegitimate children;
v. and shortening of the period in which women are prohibited from getting remarried from six months to 100 days (22).

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