The Current Changes in Judicial Proceedings for Family Disputes in Japan and UK-Socio-legal Perspective

(1)日本与英格兰和威尔士在处理家庭纠纷，特别是离婚事务方面的原则和做法既有相似之处，也有不同之处。(2) 2003年新制定的《个人诉讼法》指出，为了妥善解决纠纷，家事纠纷诉讼中存在不相容原则。一方面强调该程序应以保护家庭弱势成员的家长式做法为基础，这似乎是巢特程序所熟悉的，但另一方面又主张它还应包括对抗因素，以确保当事人的权利，这被视为顺序诉讼的一个主要因素。不仅在离婚案件中，而且在父母离婚后未成年人的监护权问题上，学术界和实务界对这一问题的看法仍然存在分歧。例如，一方主张，当儿童卷入父母纠纷时，应在家事法庭和其他有关机构的家长式做法下受到保护，而另一方则强调，即使是儿童也应被视为案件的主体，并被视为离婚当事人之一。(3)在英格兰和威尔士，离婚程序以对抗性原则为主，也有庭外调解等修改程序。可以观察到，保障和保护离婚中弱势当事方权利的规则是由一系列涉及当事方公平和正义的先例制定的，这可以通过组织良好的律师机构来实现。

(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.