How Does Japanese Law Deal with Missing Persons and Their Assets?

Japanese Attorney at Law - Bengoshi L.L.

• 9 min read

The disappearance of an individual without a trace creates profound legal uncertainties for those left behind. Questions regarding the missing person's property, marital status, and successional rights can remain in limbo, causing significant hardship and hindering the orderly settlement of affairs. Japanese civil law addresses these situations through a judicial procedure known as the "Declaration of Disappearance" (shissō senkoku), which provides a mechanism to legally presume death and thereby bring a measure of certainty to an otherwise indefinite situation. This article examines this system, its implications, and the legal framework for when a "deceased" person reappears.

The Absentee and Preliminary Measures

Under Japanese law, an individual whose whereabouts are unknown and from whom no information can be obtained is referred to as an "absentee" (fuzaisha). Before resorting to a declaration of disappearance, if an absentee has left property unattended, the Family Court can, upon application by an interested party or a public prosecutor, appoint an administrator for the absentee's property (fuzaisha no zaisan kanri) (Civil Code, Articles 25-29). This administrator's primary role is to preserve the absentee's assets. This is often an interim measure, particularly when the period of absence is not yet sufficient for a declaration of disappearance.

Furthermore, if an absentee's spouse wishes to end the marital relationship before a declaration of disappearance can be made, they may be able to seek a judicial divorce under specific grounds, such as malicious abandonment or if the absentee has been missing for three years or more with their life or death unknown (Civil Code, Article 770, Paragraph 1, Items (ii) and (iii)).

The Declaration of Disappearance (Shissō Senkoku): A Judicial Presumption of Death

The Declaration of Disappearance system allows for a person to be judicially declared deceased under specific conditions, thereby resolving the legal ambiguity surrounding their status. This is not a declaration of actual death but a legal presumption made to stabilize legal relationships.

Two Types of Declarations

The Japanese Civil Code distinguishes between two types of disappearances, each with different requirements for the declaration:

  1. Ordinary Disappearance (Futsū Shissō): This applies when an absentee's whereabouts have been unknown for a continuous period of seven years, and there is no evidence to confirm whether they are alive or dead (Civil Code, Article 30, Paragraph 1). The seven-year period begins from the last known time the absentee was confirmed to be alive.
  2. Special or Perilous Disappearance (Tokubetsu Shissō or Kinan Shissō): This is applicable when an individual has encountered a specific peril that poses a high probability of death, such as being on a sunken ship, in a war zone, or other critical dangers. In such cases, the period required before a declaration can be sought is one year from the time the peril ceased (Civil Code, Article 30, Paragraph 2).

Procedural Aspects

The declaration of disappearance is not automatic. It requires a formal judicial process:

  • Application to the Family Court: An "interested party" (rigai kankeinin) or a public prosecutor must file an application with the Family Court. Interested parties typically include the absentee's spouse, presumptive heirs (those who would inherit if the absentee were deceased), creditors, debtors, or beneficiaries of life insurance policies on the absentee's life.
  • Public Notification (Kōkoku): Upon receiving the application, the Family Court conducts an investigation and then issues a public notice (Article 148, Paragraph 3 of the Family Affairs Case Procedures Act; Article 88 of the Rules of Family Affairs Case Procedures). This notice, typically published in the Official Gazette (Kanpō), invites the absentee to report their whereabouts and anyone with information about the absentee to come forward within a specified period (usually six months or more).
  • Adjudication: If, after the public notification period expires, the absentee's status (alive or dead) remains unknown, the Family Court will issue a judgment declaring the person to be disappeared.

Once the Family Court's judgment declaring a person disappeared becomes final and binding, it has significant legal consequences (Civil Code, Article 31):

  • Presumption of Death: The disappeared person is legally presumed to have died.
  • Time of Legal Death:
    • For an Ordinary Disappearance, the person is presumed to have died upon the expiration of the seven-year period of absence.
    • For a Special Disappearance, the person is presumed to have died at the time the peril ceased.
  • Commencement of Inheritance: Succession to the absentee's estate commences as of the presumed time of death.
  • Termination of Marriage: If the absentee was married, the marriage is terminated, allowing the remaining spouse to remarry.
  • Impact on Other Legal Relations: Other legal relationships involving the absentee are settled as if they had died at the presumed time.

It is crucial to reiterate that this declaration establishes a legal presumption of death. It does not necessarily reflect the biological reality. If the absentee is, in fact, alive, their intrinsic legal capacity as a living person is not extinguished. For example, any contracts or legal acts personally entered into by the "disappeared" individual while they are actually alive remain valid and are not nullified by the declaration of their disappearance. The declaration primarily serves to finalize legal relationships centered around their former domicile and assets based on their presumed death at a specific point in time.

When the "Dead" Reappear: Revocation of the Declaration of Disappearance (Shissō Senkoku no Torikeshi)

Life can be stranger than fiction, and individuals declared disappeared sometimes reappear, or evidence may emerge proving they died at a different time or are still alive. Japanese law provides a mechanism to address such eventualities through the revocation of the declaration of disappearance (Civil Code, Article 32).

Grounds and Procedure for Revocation

A declaration of disappearance can be revoked by the Family Court if:

  1. It is proven that the disappeared person is alive.
  2. It is proven that the person died at a time different from that presumed by the declaration.
  3. It is proven that the person was alive at some point after the commencement of the disappearance period that formed the basis of the declaration.

An application for revocation can be made by the person declared disappeared, any interested party whose rights are affected by the declaration, or a public prosecutor. The applicant must provide proof to the Family Court substantiating the claim (e.g., the absentee's physical appearance, reliable testimony, official records confirming their existence or a different time of death).

The revocation of a declaration of disappearance has profound legal consequences, aiming to restore the legal situation to what it would have been had the declaration never been made, but with important safeguards for actions taken in good faith during the interim.

1. General Principle: Retroactive Annulment

As a general rule, the revocation of a declaration of disappearance has a retroactive effect (sokyūteki shōmetsu). The declaration is treated as if it had never occurred (Article 32, Paragraph 2, main clause of the Civil Code). This means:

  • Reinstatement of Marital Status: A marriage terminated by the declaration is, in principle, reinstated.
  • Nullification of Inheritance: Inheritance proceedings based on the presumed death are nullified, and any distributed property must, in principle, be restored.
  • Adjustment based on Actual Time of Death: If it's proven the person died at a different time, legal relationships are readjusted based on the actual time of death.

However, this retroactive effect is subject to significant exceptions designed to protect those who acted in good faith relying on the original declaration.

2. Exception 1: Protection of Acts Done in Good Faith

Article 32, Paragraph 1, latter part of the Civil Code provides a crucial protection: "acts done in good faith before the revocation of the declaration of disappearance shall not be affected by such revocation." This means that legal acts performed by parties who were unaware that the declaration was contrary to fact (i.e., they acted in "good faith" - zen'i) retain their validity despite the revocation.

The "good faith" standard here generally means lacking knowledge of the absentee's survival or the erroneous nature of the declaration at the time the act was performed.

  • Impact on Property Transactions:
    This protection is particularly relevant for property transactions. For example, if an heir (Person B) inherits property from the "deceased" absentee (Person A) and subsequently sells that property to a third party (Person C), the validity of C's acquisition depends on the good faith of the parties involved.
    • If both B (the heir who sold) and C (the purchaser) acted in good faith, C's title is generally secure.
    • If B acted in good faith, but C knew A was alive (or that the declaration was false), C is not protected, and A can typically recover the property.
    • A more complex scenario arises if B knew the declaration was false but C acted in good faith. A Daishin'in judgment (February 7, 1938, Minshu Vol. 17, p. 59) suggested that in such a case involving a contractual transfer, C might not be protected if B was in bad faith. The reasoning was that for the true owner (A) to lose their rights, the transaction itself (between B and C) must be worthy of protection, which arguably requires good faith from both contracting parties to that transaction. However, many legal scholars argue that C, as a good-faith third-party purchaser who relied on the legal state created by the declaration, should be protected irrespective of B's bad faith, emphasizing the security of transactions. This area reflects an ongoing tension between protecting the original owner and ensuring transactional security for innocent third parties.
      It's also noted that this protection primarily applies to dispositive acts (shobun kōi, e.g., sale, mortgage) rather than merely obligatory acts (saiken kōi, e.g., a contract to sell). For movable property, the principle of acquisition in good faith (Civil Code, Article 192) often provides an independent basis for protecting a bona fide purchaser.
  • Impact on Marital Status:
    If the spouse (B) of the declared-disappeared person (A) remarries (to C) and A subsequently reappears, leading to the revocation of the declaration, the legal status of both marriages becomes a delicate issue.
    • Strict retroactive annulment of the declaration would imply the A-B marriage revives. The B-C marriage would not be automatically void but could become voidable on grounds of bigamy (Civil Code, Articles 732, 744).
    • Historically, if the remarriage (B-C) was entered into in good faith by both B and C, it was often considered that the second marriage would be upheld, and the first (A-B) marriage would not revive.
    • However, the prevailing recent judicial and scholarly trend leans towards prioritizing the stability and finality of the second marriage (B-C), often irrespective of the good faith of B and C regarding A's actual status. This view considers that B might have had grounds for divorce anyway due to A's prolonged absence, and that unraveling the second marriage, especially if children have been born, would cause excessive social and personal disruption. The focus shifts to the reality of the new family unit formed. If A and B wish to resume their life together, they would typically need to formally remarry after the B-C marriage is legally dissolved (e.g., through divorce).

3. Exception 2: Limitation on the Duty to Return Property by Direct Beneficiaries

When a declaration of disappearance is revoked, those who directly acquired property as a result of the declaration (e.g., heirs who inherited the absentee's estate) are, in principle, obligated to return such property (Article 32, Paragraph 2, main clause of the Civil Code). Their acquisition is based on a presumption that has been proven false.

However, Article 32, Paragraph 2, proviso, limits this obligation: such persons are only required to return property "to the extent to which they are still enriched" (gen ni rieki o ukete iru gendo). This is generally interpreted in a manner similar to the concept of "existing enrichment" (genzon rieki) in the law of unjust enrichment (Civil Code, Article 703).

  • Meaning of "Existing Enrichment": This means the beneficiary must return what actually remains of the benefit received. If the property itself is still in their possession, it must be returned. If it was converted into another form (e.g., money from a sale of inherited goods, which is then invested), the transformed asset or its value must be returned. Importantly, "existing enrichment" also includes "saved expenses" – money spent on necessities like living costs or unavoidable debt repayments that the beneficiary would have had to incur even if they hadn't received the property from the absentee. The rationale is that the received benefit allowed them to avoid using their own funds for these expenses.
  • Funds that were dissipated through no lasting benefit (e.g., spent on gambling or lavish, non-essential luxuries) are generally not considered "existing enrichment" and do not need to be repaid by a good faith beneficiary.
  • Application to Good Faith vs. Bad Faith Beneficiaries: The literal wording of Article 32, Paragraph 2, proviso does not distinguish between good faith and bad faith direct beneficiaries regarding this limitation. However, the predominant scholarly view, and often the practical approach, is that this limitation on the duty to return property to the extent of existing enrichment should primarily apply to those who received the property in good faith (i.e., without knowing the declaration was false). If a direct beneficiary knew the absentee was alive or that the declaration was erroneous, they would typically be liable to return all benefits received, potentially with interest, under the general principles of unjust enrichment for a bad-faith recipient (Civil Code, Article 704). Under this interpretation, the proviso in Article 32(2) for good faith recipients essentially aligns their obligation with that under Article 703.

Conclusion

The Japanese system of Declaration of Disappearance (shissō senkoku) provides a vital legal framework for resolving the uncertainties created when a person goes missing for an extended period or in perilous circumstances. By allowing for a judicial presumption of death, it enables the settlement of estates, the clarification of marital status, and the stabilization of other legal relationships that depend on the absentee's status.

However, the law also recognizes the possibility that such declarations may be contrary to fact. The provisions for revocation, coupled with the carefully constructed exceptions for acts done in good faith and the limited liability for direct beneficiaries to return property, demonstrate a sophisticated attempt to balance the need for legal certainty with the principles of fairness and the protection of innocent parties who have relied on a court-sanctioned legal status. Understanding these rules is essential for navigating the complex legal terrain that emerges when an individual vanishes and, equally so, when they reappear.