Thursday, October 29, 2015
Fūkibinran. Now that is a Japanese expression you don’t see around much these days. I bet many young Japanese readers don’t even know how to read the four kanji that make up this word: 風紀紊乱. It means something akin to “an affront to public morality,” “a breakdown in customary discipline” or, perhaps, “compromising love relations.” But there are simpler and more direct ways to render this expression in English — how about “adultery,” “cheating” or “having multiple partners”?
In 1996, actor Junichi Ishida found himself embroiled in a scandal due to his illicit affair with a young model. At one point he tried to fend off the paparazzi pestering him with the following comments: “You don’t hesitate to denigrate adultery, yet the bitter sadness and sweetness of secret love are themes in works of great literature and art. They have long been a source of the highest culture.”
This comment incurred the scorn of the media, as journalists accused him of trying to justify adultery by claiming that adultery is culture. It also cost the actor many important roles, making him a pariah in the entertainment world for several years until he managed to rebound.
Today Ishida uses the phrase “Adultery is culture” as a self-mocking trope on TV. He made an odd reference to it during a demonstration last month outside the Diet building against the security bills enabling Japan’s Self-Defense Forces to more easily engage in combat overseas. During a speech on Sept. 17, he said, “War is not culture,” to thunderous applause and laughter. Odd that such a touchy subject could be used simultaneously in lighthearted jest and about a subject that is literally dead serious. Also odd considering that if one supposes that adultery is a part of literature, arts and our very culture, then surely war is too.
My point is that the joke falls flat if you take Ishida’s original comment to its logical conclusion: that because a phenomenon can be found in a novel or painting, this makes it something we should tolerate or even desire. Picasso’s “The Rape of the Sabine Women” and “Guernica” are great works of art, but that doesn’t mean we should embrace rape and war.
Be that as it may, despite the phrase above having become little more than a punch line, and for good or ill, our society continues to see adultery as an evil. Perhaps to a lesser degree, but an evil all the same.
At this point you might ask, dear reader, what all this has to do with Labor Pains. Well, in fact, many courts have been asked to answer the question of whether adultery is grounds for firing an employee.
The Osaka District Court ruled on Aug. 10, 1990, that a high school teacher, with a wife and children at home, had betrayed the high moral standards expected of his position when he became intimate with a female student. Such a dismissal may be understandable to many considering that the student was a minor when their relationship began, although the relationship apparently only became physical after she graduated.
Adultery that occurs between two employees of the same company is a different matter than “regular adultery,” in that many corporations have written into their shūgyō kisoku work rules a prohibition of any behavior that “disturbs or might disturb internal order or morality,” and violations often incur disciplinary action.
Asahikawa District Court ruled on Dec. 27, 1989, in a case involving a woman who was fired for committing adultery with a male employee who was married with children. Note that the married man was notfired, only the single woman who entered into a physical relationship with him. In fact, the company asked the man to convince her to resign. When that failed, management tried to convince her to leave. When that too failed, they issued her a pink slip, yet no slip of any color to the married male employee who actually broke his vows. (I suppose we should remember that this was the late 1980s, before equal opportunity was enshrined in law. Too early to come back to the future yet, though.)
She sued the company, Shigeki Kosetsubi, for reinstatement. The court ruled that adultery was, “except under extraordinary circumstances, deplorable behavior that was also illegal with respect to the wife.” The verdict noted, however, that the rule prohibiting “disturbing internal order or morality” can be used as grounds for disciplinary action only when there is indeed provable and specific disturbance. In other words, adultery may or may not disturb internal order and morality and, in this case, it did not. The court ordered her reinstatement and the payment of all back wages.
Naturally, intimate relationships between two people entail situations that are known directly only to the participants themselves, so many cases involve making judgments about questions of fact. Such cases include allegations of rape, sexual harassment or similar acts that are contested between the two parties. If the court decides that no rape or sexual harassment occurred, then any disciplinary action based on such an act is invalid. If the court determines such acts did take place, then the perpetrator could be in for more than simply losing their job.
For adultery to be ruled to have “disturbed internal order and morality,” it would need to involve something like multiple visits by the spouse to the workplace, creating scenes each time. Another possibility is if the company’s reputation or other intangible assets are damaged. Such details and specific damage are necessary before an employer may invoke such work-rule prohibitions.
It is rare for an employee to be disciplined for committing adultery with someone who does not also work at the company. Rarer still do courts uphold such discipline. But one such rare case was handled by Osaka District Court. A permanent instructor at Osaka Jogakuin University was fired for getting pregnant while unwed. A married man was the father.
An unwed pregnancy is “not good for a professional teacher in that it has an adverse impact on students with respect to the education policy (of the school),” the court said in its ruling in 1981. “It cannot be excused by the claim that it is simply a private matter, so the dismissal is valid.” What adverse impact on students? The court explained that the teacher had violated educational morality and greatly lowered the dignity of the school.
One of the most famous cases of dismissal due to adultery involved a married-with-kids 40-year-old tour bus driver who managed to seduce a newly hired 18-year-old bus tour guide. KM Tourism fired him based on a clearly stipulated prohibition against drivers becoming romantically involved with guides. He sued to get his job back.
Tokyo District Court ruled on May 27, 1988, that the dismissal was valid because he was married. For unknown reasons, the man did not appeal the ruling, but he sued in the same court a second time, this time for damages, claiming the first verdict was itself invalid. Tokyo District Court again ruled that the dismissal was valid, so no damages.
Next, the man appealed the second decision to the Tokyo High Court, which on Feb. 28, 1995, awarded him ¥7 million in damages for his pain and suffering — an extraordinary amount considering how paltry such awards tend to be in Japan. The court was unable to order his reinstatement, since the 1988 verdict still stood, but it did say that he had suffered an inordinate amount of public humiliation for being wrongly fired for adultery. And he had been devastated financially, even forced to borrow from a friend to pay his mortgage.
Although it took him eight years, the man was finally vindicated, at least by the courts.
In the bus driver’s case, two different court processes produced opposite results — another sign of how abstract and subjective morality and social norms can be.
This concept of social norms — shakai tsūnen — is a crucial element of Japanese law, particularly labor law. It is hard to see what social norms are at any given time or specific set of circumstances. It seems safe to say that judges are forced to make a decision that is necessarily subjective and personal, although lawyers tend to wish it were otherwise.
“Shakai tsūnen is a malleable phrase of great convenience, in that it can be interpreted in myriad ways,” says attorney Shoichi Ibuski (full disclosure, the retained lawyer of Tozen Union). “I want judges to stop using this phrase to push their idiosyncratic personal beliefs on society. They should consider the common values of the actual workplace instead.”
With the increase in women at the workplace, it seems that the opportunities for workplace romance (including adultery) are on the rise. While companies and their work rules may regard such relationships from the perspective of maintaining corporate order and morality, workers also have rights to freedom and privacy. Intrusive investigations into harmless affairs could — under certain circumstances, and in my personal opinion — constitute sexual harassment of the parties involved.
Friday, October 16, 2015
Tuesday, October 13, 2015
The 2015 edition of my treatise entitled International Family Law Practice has now been published.
From Chapter One:
From Chapter One:
This book is designed to fill a void that the author discovered when he was embroiled in his own international divorce case a couple of dozen years ago. Seeking counsel on two continents as to divorce and child custody matters that crossed international boundaries, he discovered that family lawyers were generally unable or unwilling to provide ““big picture””” advice as to whether an action for divorce and custody could or should be brought in one jurisdiction or in another and as to the pros and cons of the various possibilities. Nor were such matters discussed in any practical sense in the legal literature, whether in textbooks or legal periodicals.
Once the author had solved his personal dilemma by undertaking his own voluminous research and by trial and error, he realized that he had stumbled across a niche area of law that was crying out for attention. What made the discovery especially attractive were the facts that international clients, as well as their local counsel, were hungry for informed, reliable, and practical advice concerning these issues; that the volume of international family law cases was obviously set for major growth as international relationships proliferated in a shrinking world; and that the issues raised by such cases were complex, puzzling, and fabulously intriguing. All in all, it proved to be a perfect way to “m“ake lemonade from lemons.”
The purpose of this book is to share with fellow lawyers in the United States the knowledge that the author has gained by working exclusively in international family law for many years. The intention is to provide an extremely practical approach to handling international family law matters in collaboration with family lawyers in local and distant jurisdictions.
The book focuses on two main areas. The first is international marriage and divorce. Chapter 2 deals with the validity issues in the United States of foreign marriages. Chapter 3 deals with foreign prenuptial and postnuptial agreements and with the issue of how to draft prenuptial agreements when there is a foreign element or the prospect of future international relocation. Chapter 4 covers the issue of international divorce planning while Chapter 5 covers the issue of the recognition of foreign country divorces.
The second area of focus is that of children. Chapter 6 covers international child support issues. Chapter 7 deals with international child custody, while Chapter 8 covers international relocation with children. The final three chapters deal with international child abduction, with Chapter 9 covering the Hague Abduction Convention, Chapter 10 dealing with non-Hague cases and Chapter 11 dealing with the prevention of international child abduction.
Monday, October 05, 2015
Jeremy D. Morley
Courts sometimes require that a parent should be permitted to take a child for an international visit, despite the objections of the other parent, if the taking parent posts a financial bond. However, such a requirement often provides a false sense of security.
Last year, a Florida appeal court sensibly overturned a lower court’s decision that had allowed the visit of two children to Jamaica to see their father conditioned primarily on his filing a $50,000 bond.
The father had been deported to Jamaica upon convictions for battery on the mother and had repeatedly threatened to kidnap the children.
The appeal court stated that the trial court’s concern about a potential abduction was well founded, but ruled that “its decision to address that concern through a monetary bond is not. Given the fact that Jamaica is not a signatory to the Hague Convention, there is no evidence suggesting that the mother would be able to gain return of the children from Jamaica through legal processes, no matter how much money was available to her from a bond…. Nor would the evidence support a finding that the bond, standing alone, could deter a potential kidnapping given the father's demonstrated disregard for the law and repeated threats to take the children from the mother.” Matura v. Griffith, 135 So.3d 377, 214 WL 338750 (Fla.App. 5 Dist.,2014).
We have repeatedly warned that, since children are priceless, bonds are never “painful” enough to overcome the decision that parental abductors often make that – at any and all cost -- their child should be kept away from the other parent and with their family in their country of origin.
While bonds may provide a litigation war chest they will not even provide much value in that regard unless the foreign legal system is likely to take action, as the Florida court usefully recognized.