Japan: 誰是我親生父親? 日本的認親300天黃金期限

出自Taipedia

• 原文：Which father is my real father?: Japan's 300-day rule
• 作者：Hanako Tokita
• 譯者：phrenic
• 校對：Portnoy（翻得太好了，沒得校對！）

五月上旬，日本政府宣布，他們將要頒佈一項新的規則，藉以認定在母親離婚後300天內所生孩子的父親為誰。緊接在這項新規則頒布後的則是，一群單親的離婚婦女提起的民事訴訟進而引起國會的爭論。

In early May, the Japanese government announced that it will take a special measure to recognise children born within 300 days of their mother's divorce, given that the mothers became pregnant after divorce. This announcement came after a group of divorced women with children raised the issue on the current civil law, sparking debate in the National Diet.

日本於1898年所頒布的民法第二篇第772條規定，於母親婚姻成立後200天或超過200天后，所生之子女或於母親婚姻結束後，300天之內所生之子女，被視為係於母親先前婚姻中所懷之子女。而這代表著，該子女應入其母親的前夫之戶籍或其夫家之戶籍，這項規定使得許多的單親母親及其他有涉入的人，感到十分的無奈、苦惱。為了要證明該民子女與前段婚姻的丈夫沒有任何的血緣關係，前夫必須要出庭作證。但，許多的單親母親並不想與他們的前夫有任何的接觸，更不希望他們的孩子被登記於前夫的戶籍中。在這樣的案例中，子女大多因此沒有戶籍。

Section 2 of Article 772 of the Japanese Civil Code, implemented in 1898, stipulates that a child born 200 days or more after its mother's marriage took place, or within 300 days after its mother's marriage was dissolved or terminated, is considered to have been conceived during her previous marriage. This means that the child must be added to the koseki of its mother's previous husband, or family registry, which causes tremendous distress for the mothers and other people involved. In order to prove that the child is not biologically related to the former husband, this former husband has to testify before the court. Many of these mothers avoid contact with their former husbands, or do not want their children to be registered in their former husbands' registries. In such cases, children do not have koseki.

根據司法院粗略的估計，每年大約有3000個孩童在這樣的情況下出生。這些沒有戶籍登記的孩童無法收到如健保及補助金等許多的社會服務，並且也無法被核發護照。

The Ministry of Justice estimates that approximately 3,000 children are born under these circumstances every year. Those children who do not have family registries cannot receive various social services such as health care and pension programs, and are not issued passports.

是否遵循政府這項規定的爭論，已經在許多的部落格上引起相當的爭議。一位不具名的部落客覺得，法律根本沒有修改的必要。

Following the government's announcement, the issue has been extensively debated on many blog sites. An anonymous blogger argues that the law does not need to be changed.

如果一位婦女堅持自己的孩子是屬於新的丈夫的，那我們就來好好的想想吧! 一位婦女就在她離婚之後(也許是一天之後) 有了新的男朋友，然後懷孕並且再婚。這聽起來有可能嗎? 很清楚的是，這位婦女早在她離婚前就不忠了。即使不是這樣，到底發生了什麼事? 為何一離婚就懷孕了? 我所能想到的只有，這都是他們自己的錯，這項法律到底哪裡錯了?

If a woman insists that her kid is her new husband's, then think about the situation carefully. The woman had a new boyfriend right after (maybe like the day after) her divorce, got pregnant and remarried. Does it sound possible? What is clear is that this woman was conducting acts of infidelity before her divorce. Even if not, what's up with getting pregnant so soon after divorce? I can only think that this is their own fault. Is there anything wrong with this law?

更者，婦女被禁止再婚的期間已從180天縮短至100天了。在三個月內再婚的婚姻，很有可能最後也會以離婚收場，不是嗎? 嫁給一個你不是非常了解的對象….如果，他們堅持他們十分了解彼此，那我就不得不懷疑那位婦女的忠貞度。這方面的法律都不夠好。事實上，我到覺得應該要更加的嚴謹才是，舉例來說，如果一位婦女離了婚而且有了小孩，那她就不應該再婚，或是做其他類似的事情。我們在電視上看到的虐童案，幾乎100%的是發生在已離婚的父母或未婚的情侶所組的家庭中。很清楚的，有了孩子還再婚是有風險的，無辜的孩童被他們所信任的父母親背叛或虐待。難道這樣的情況不是更令人擔心嗎?

Another point, apparently the period women are not allowed to get remarried has been shortened from 180 days to 100 days. Getting remarried in three months will propbably end up in another divorce, won't it? Marrying someone you don't really know that well… If they insist that they know each other well, then I would suspect a case of infidelity. This kind of law is not good enough. In fact, I think they should be restrained. For instance, if a woman gets divorced and she has children, then she shouldn't be able to remarry, or something like that. Almost 100% of all cases of abuse we see on TV news happen in households with divorced parents or unmarried couples living together. Clearly, there is a risk in remarrying with children. Innocent children are betrayed and abused by their own parents whom they trust. Isn't this situation much more serious?

但在另一方面，Toranekojiji 寫到，法律是走在時代的後面，並且請求法律的鬆綁。 On the other hand, Toranekojiji writes that the law is behind the times and calls for affirmitive relief. 這個決定於母親離婚後所生之子女父親為何人的「300 天規則」，是承繼了明治時代時，所制定之民法的基本要義，這項規定是基於一般懷孕期間所制定的。然而，即使是在離婚後所懷之子女或是早產等情況，只要是在離婚300天內所生之子女，皆會被視為前夫的子女。

This 「300 day rule」, which determines the father of a child born after its mother's divorce, inherits the substance of the Civil Code written in the Meiji era. It is based on the average gestation period. However, even in cases of conception after a divorce and preterm delivery, short of 「300 days」, a child is regarded as an offspring of her former husband's.

離婚不必然為理所當然的簡單，其實離婚的調解在某些案例中會有所拖延，尤其是當婦女要逃離她丈夫的暴力虐待時，而這樣的案例並不罕見。

Divorce is not necessarily granted easily. It is not rare that divorce mediation can drag on in such a case as a woman is running away from her husband's violence.

即使是在離婚前懷孕，也可以藉由著DNA的檢測、仲裁的紀錄，及可證明夫妻早已分居的居住地之登記，來判定所懷之子女的父親為何人。

Even in the case of conception before a divorce, it must be possible to determine the father of the child based on DNA testings, arbitration records, and residence registry showing the state of separation.

在司法院的修正草案中，若一名婦女獲有可證實其係在離婚後才懷孕的醫生證明。那她的孩子將可以被視為是其新丈夫的子女亦或為私生子。雖然這樣的草案對舊法已有所修改，但是大多的案子並不會依照這樣的規定來解決。

In the revision by the Ministry of Justice, if a woman obtains a doctor's note proving that she got pregnant after her divorce, then her child will be regarded as either her new husband's child or an illegitimate child. Although it is a step forward, not a lot of cases will not be solved by this.

一項修正離婚前懷孕的法案，因為極端重視家庭價值的保守派而被制止。Nagase Jinen法官提起了「不貞與性道德」的爭論，而自由民主派則是就限制婦女再婚期間強烈的反對。

A bill which takes into account revision of pre-divorce pregnancy situations has been held back by the conservatives with reactionary family values. Justice Minister Nagase Jinen brought up the argument of 「fidelity and sexual morals」. There was backlach within the Liberal Democratic Party over the insertion of a shorter restrictive period for women to get remarried.

我們應該有所修正，使那些已在其先前婚姻受盡折磨的婦女，不再因為他們子女的戶籍問題，而再次的被受煎熬。我們不應以最近的修正案作為這項爭議的結論，而應是要以更寬廣的角度來修改法律，藉以幫助更多的婦女以及他們子女。

We should redress situations where women who suffered through their divorce have to suffer again over her child's koseki. We should not conclude the issue based on the recent revision, but should develop this discussion in more depth towards amending the law to help more mothers and their children.