The Right to Demand Partition of Co-Owned Property as One of the Basic Human Rights

In Japan, there is a strong and enduring tradition of valuing harmony and respect for cooperation, which remains unchanged to this day. Pursuing individual freedom is often strongly criticized as an act that disrupts harmony in Japan.

Regarding co-owned property, especially when it is shared among relatives, there is often a prevalent argument that emphasizes the importance of preserving the family’s valuable assets and passing them down cooperatively to future generations.

However, beneath the emphasis on cooperation, there is often a situation where some co-owners benefit more while others are unable to enjoy the benefits of the shared property. Claims that prioritize harmony and cherish family assets often serve as a veil to conceal the selfishness of some co-owners.

In contrast to such prevailing practice in Japan, Article 29 of the Japanese Constitution guarantees the freedom to use one’s own property to enrich one’s life as a fundamental human right for living as a free individual.

In a judgment where the Supreme Court deemed a law limiting claims for partition of co-owned forests to be in violation of Article 29 of the Japanese Constitution and therefore invalid, the Court emphasized the importance of the right to request the partition of co-owned property, stating as follows:

“Article 29 of the Constitution provides in paragraph 1, ” The right to own or to hold property is inviolable.” In paragraph 2, it states, ” Property rights shall be defined by law, in conformity with the public welfare.” This provision not only guarantees the system of private property but also protects the individual property rights of the people, which form the basis of social and economic activities, as fundamental human rights. Furthermore, due to the increasing need to consider the interests of society as a whole and impose restrictions on property rights, it has established that the Diet can regulate property rights as long as it conforms to the public welfare.

(omitted)

Let us consider the purpose and objectives of the legislation in Article 256 of the Civil Code. Co-ownership refers to the joint ownership of an object by multiple individuals, and co-owners have fractional rights that possess the nature of ownership in themselves. However, being in a state of co-ownership does not imply that they are more closely associated with each other under a specific purpose. In the case of co-ownership, fractional rights are mutually restricted due to the nature of co-ownership, which can result in inadequate consideration in the use or improvement of the property. Moreover, disagreements and disputes among co-owners regarding the management or modification of the co-owned property can easily arise. When such disagreements or disputes occur, they can hinder the management or modification of the co-owned property, leading to a situation where the economic value of the property cannot be fully realized. Therefore, the aforementioned article allows each co-owner to request the partition of the co-owned property at any time in order to eliminate such disadvantages, allow co-owners to freely control the object, and fully realize its economic utility. Furthermore, it establishes a time limit for contracts that do not divide the co-owned property and stipulates that contracts not dividing the property beyond that limit shall have no effect, thereby guaranteeing the co-owners’ right to request the partition of the co-owned property.

In this way, the right to request the partition of co-owned property is a right that has been developed to enable each co-owner to transition to sole ownership, which is the fundamental form of ownership in modern civil society, and serves public interest purposes as mentioned above. It is a right that has been recognized in the Civil Code, along with the freedom of disposal of fractional rights, as an essential attribute of co-ownership.

Therefore, unless the nature of the co-owned property makes it impossible to partition, denying the co-owners’ right to request partition would constitute a restriction on property rights under the Constitution and any legislation imposing such restrictions would need to conform to the public welfare mentioned in Article 29, paragraph 2.”
(Judgement of the Supreme Court on April 22, 1987.)

The Supreme Court of Japan is extremely reluctant to declare laws enacted by the elected Diet as unconstitutional and invalid, with only 11 such judgments having been made to date. One of these cases is the aforementioned judgment that declared the Forest Act, which restricts the right to request partition of co-owned property (Article 256 of the Civil Code), as unconstitutional and invalid. The right to request partition of co-owned property is indeed a significant right.

The right to freely utilize one’s own property as an independent individual should not be infringed upon by anyone. Even if criticized by other co-owners for making a claim for partition, I firmly believe that you should exercise your fundamental human right without being intimidated by unjust criticism.

*The Constitution of Japan
Article 29
(1) The right to own or to hold property is inviolable.
(2) Property rights shall be defined by law, in conformity with the public welfare.
(3) Private property may be taken for public use upon just compensation therefor.

*Civil Code
(Demands for Partition of Property in Co-Ownership)
Article 256(1) Each co-owner may demand the partition of property in co-ownership at any time; provided, however, that this does not preclude concluding a contract agreeing not to partition that property for a period not exceeding five years.
(2) The contract under the proviso to the preceding paragraph may be renewed; provided, however, that the period thereof may not exceed five years from the time of the renewal.