2002 Volume 2002 Issue 52 Pages 47-79,en5
This paper tries to make clear how "Iye" and the right of househead (Ko-shu ken) were interpreted in the family law of the early Meiji period, by analyzing both the "Deposition of Househead" cases in the lower courts and the administrative orders of the government. The "Deposition of Househead" (Hai-ko-shu) means the househead being deprived of his or her right to property and status as a patriarch by the decision of his or her family, notwithstanding his or her own will. It has been recognized as the apparatus supporting the preservation of "Iye" system or "Ko" (house), which was prescribed by the Family Register Law of 1872. In the early Meiji period, while the government admitted the househead's right to properties which had been succeeded to by the family for many generations, the househead might be deprived of that right and status if he or she acted against the interests of "Iye". Accordingly, it was not the househead but "Iye" or "Ko" that had the right to the patrimony. On the other hand, there are opinions that "Ko" was not an actual unit of family but an abstract and ideological concept at the time. This paper tries to clarify how "Iye" and the right of househead were treated by the judiciary and the administration in real cases.
In the first place, when we analyze 48 decisions of Tokyo District Court concerning the claims to deprive househeads of their rights and status, we know that 64% of the claims were rejected by the court. So, we can say that the court restricted the compulsory removing of the househeads against their will. The decisions also tell that many of the househeads in the cases were "Yo-Koshu" (adopted sons), who were in relatively lower position in the family. Furthermore, the court admitted that househeads had the right to the patrimony and demanded them to support the living of the family and maintain it. Therefore we can say that the househead was recognized not as a patriarch having absolute powers and standing on the top of "Ko", but as a "head of the household" who was supposed to maintain the household, a unit of living, maintenance and residence. The househead as a head of the household had the exclusive right to properties of the family. It was this exclusive right to properties that led to the protection of the right of househead. Househeads were, on the other hand, deprived of their status when they abused their right and went beyond the purpose of maintaining the household. The judgements of "Deposition of Househead", therefore, were given in order not to preserve "Iye" system, but to protect the household. The "Deposition of Househead" which originated in Edo period, changed its function and protected the household in the early Meiji period. This is what we can see from the Tokyo District Court cases.
In the second place, when we consider about 160 administrative orders of the government, especially that of the Ministry of Public Affaires (Naimu-sho Shirei), issued in response to the inquiries from prefectures, we know that househeads were deprived of their rights and status when they were missing or punished, though there were some legal requirements. The most important requirement in the orders of the Ministry of Public Affaires was that the family could not live because of the househead's absense. The Ministry of Public Affaires admitted that househeads had the right to the patrimony and paid serious attention to their own will, unless their wives and children or old parents were poor and in starvation, in which cases the properties were disposed of even against the househead's will. We can say that in the administration, as in the judiciary, the exclusive right to properties led to the protection of the right of househeads.
