Recognition of same-sex unions in Japan

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Marriage

Recognized

Civil unions and
registered partnerships
Minimal recognition
Unclear legal status
See also
Notes
  1. KoN: Performed in the Netherlands proper, including the Caribbean Netherlands. Registered in Aruba, Curaçao and Sint Maarten in such cases, but the rights of marriage are not guaranteed.
  2. NZ: Neither performed nor recognized in Niue, Tokelau, or the Cook Islands.
  3. UK: Neither performed nor recognized in six British Overseas Territories.
  4. US: Neither performed nor recognized in some tribal nations. Recognized but not performed in several other tribal nations and American Samoa.
  5. Israel: Registered foreign marriages confer all marriage rights. Domestic common-law marriages confer most rights of marriage. Domestic civil marriage recognized by some cities.
  6. EU: The Coman v. Romania ruling of the European Court of Justice obliges the state to provide residency rights for the foreign spouses of EU citizens. All EU member states except Romania follow the ruling.
  7. Cambodia: Recognition of a "declaration of family relationship", which may be useful in matters such as housing, but they are not legally binding.
  8. China: Guardianship agreements, conferring some limited legal benefits, including decisions about medical and personal care.
  9. HK: Inheritance, guardianship rights, and residency rights for foreign spouses of legal residents.
  10. India: Courts have recognised guru–shishya, nata pratha or maitri karar–type contractual relationships, but they are not legally binding.
  11. Japan: Some cities and prefectures issue partnership certificates, but they are not legally binding.
  12. Namibia: Marriages conducted abroad between a Namibian national and a foreign spouse recognized for residency rights.
  13. Romania: Hospital visitation rights through a "legal representative" status.
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Japan does not recognize same-sex marriages or civil unions.[1] Several municipalities and prefectures issue same-sex partnership certificates, which provide some benefits, but do not offer equal legal recognition.[2][3] Most polls conducted since 2013 have found that a majority of Japanese people support the legalization of same-sex marriage or partnerships,[4][5] and a 2018 poll found it supported by an overwhelming majority of those under the age of 60.[6]

Politically, the Constitutional Democratic Party, the Japanese Communist Party, the Social Democratic Party, Reiwa Shinsengumi,[7] and Komeito support legalizing same-sex marriage.[8] Nippon Ishin no Kai also supports same-sex marriage, but believes a constitutional amendment is necessary to legalize it.[8] However, the Liberal Democratic Party, which has been in power almost continuously since 1958, remains opposed to it.[9]

On 20 June 2022, a district court in Osaka upheld the constitutionality of the same-sex marriage ban.[10] Previously, on 17 March 2021, a district court in Sapporo had ruled it unconstitutional, arguing that laws or regulations that deprive same-sex couples of the legal benefits of marriage constitute "discriminatory treatment without a rational basis" and as such violate Article 14 of the Constitution of Japan. The Sapporo court also ruled that Article 24 of the Constitution, which defines marriage as "based only on the mutual consent of both sexes", does not prohibit the recognition of same-sex marriages.[11] In May 2023, a district court in Nagoya ruled the same-sex marriage ban unconstitutional. While the rulings did not legalise same-sex marriage in Japan, it is anticipated that they may pressure the National Diet to act.[12] In June 2023, a Fukuoka district court ruled that the ban was in a "state of unconstitutionality".[13] In March 2024, the Tokyo District Court and the Sapporo High Court also issued similar verdicts, stating that the same-sex marriage ban violated the Constitution.[14][15][16]

Historical recognition of same-sex relationships

Main article: Homosexuality in Japan

While there are no records of same-sex marriages as understood from a Western perspective being performed in pre-modern Japanese culture, there is evidence for identities and behaviours that may be placed on the LGBT spectrum. During the Edo period, some forms of same-sex relations were recognized. For instance, within Buddhist monasteries, age-structured relationships known as nanshoku (男色) existed, where an older partner (念者, nenja), usually a monk or an abbot, would take a younger man (稚児, chigo) as his partner. The relationship, which involved sexual relations, would be dissolved once the boy reached adulthood (or left the monastery). Both parties were encouraged to treat the relationship seriously and conduct the affair honorably, and the nenja might be required to write a formal vow of fidelity.[17] Among the samurai class, there were similar age-structured relationships, known as wakashūdō (若衆道). The older partner was permitted, if the younger partner agreed, to take him as his lover until he came of age; this relationship, often formalized in a "brotherhood contract", was expected to be exclusive, with both partners swearing to take no other male lovers.[18] Both parties were expected to be loyal unto death, and to assist the other both in feudal duties and in honor-driven obligations such as duels and vendettas. Although sexual relations were expected to end when the younger partner came of age, the relationship would, ideally, develop into a lifelong bond of friendship. At the same time, sexual activity with women was not barred (for either party), and once the boy came of age, both were free to seek other wakashū lovers.[19]

It is believed that the Ainu people traditionally recognized people who fulfilled a cultural third gender role. These people may have been shamans. Ainu folkflore and oral history also recount stories of married men taking male concubines as sexual partners.[20] Marriage (ウホクコレ, uhokukore) in Ainu society generally involved first cousins, and polygamy was also permitted.[21]

Partnership certification system

Main article: Partnership oath in Japan
Map of Japanese subdivisions that issue partnership certificates to same-sex couples.
  Issues partnership certificates to same-sex couples

As of 1 April 2024, 424 municipalities and 26 prefectures have established a "partnership oath system" (Japanese: パートナーシップ宣誓制度, pātonāshippu sensei seido, pronounced [paːtonaːɕiꜜppɯ seɰ̃seː seꜜːdo]), also known as "partnership certification system" (パートナーシップ証明制度, pātonāshippu shōmei seido), which provides same-sex couples with some limited benefits. The couple is issued a special certificate which may be useful in matters such as housing, hospital visitation rights and consenting to surgery for a partner.[2][3] However, the system is not legally binding and there is no legal obligation on landlords or hospitals to honour the couples' rights even if presented with a certificate, though cities have encouraged companies, hospitals and landlords to recognize the certificate.[5] The various benefits provided by the system are also very limited in comparison to those granted to married couples; same-sex couples cannot inherit the estate and property of a deceased partner or attend the funeral of a deceased partner for instance. Partners must meet certain requirements, including living in the municipality or prefecture, being older than 20 years of age, and not having a spouse or another partner. Several jurisdictions have also established a "partnership familyship system" (パートナーシップ・ファミリーシップ制度, pātonāshippu famirīshippu seido), which also recognises the children and in-laws of same-sex couples, and allows partners to make medical decisions for their child, and to pick up their children at schools and kindergartens (whereas previously only the biological parent was allowed to pick up the child). Some registries have also been extended to opposite-sex couples who do not wish to be married.

On April 1, 2015, Shibuya in central Tokyo announced it would offer same-sex couples special "partnership certificates". While these licenses are not legally recognized as marriage certificates, they may be used in civil matters such as hospital visitation rights and housing.[22][23] The Shibuya city office began accepting applications on 28 October 2015.[24] In response to this action by the Shibuya city office, the "Special Committee to Protect Family Ties" (家族の絆を守る特命委員会, kazoku no kizuna wo mamoru tokumei iinkai) of the federal ruling Liberal Democratic Party was formed in March 2015 to discuss the matter. An officer from the Ministry of Justice who was invited to comment stated that the action by Shibuya is legal because the certificate issued is not a marriage certificate and the current Japanese legal code does not prohibit the "partnership" of same-sex couples.[25]

The number of jurisdictions establishing partnership systems has increased every year since then. 21 cities established a same-sex partnership registry in 2019, notably Kitakyushu, Nagasaki,[26] Sakai, and Yokohama.[27] 36 cities followed suit in 2020, including Kawasaki, Kyoto, Niigata, Okayama, and Sagamihara, and 69 more cities followed in 2021, notably Adachi, Hiroshima,[28] Kanazawa, and Kōchi.[29] In 2022, 107 cities established a partnership system, including Kagoshima, Nagano, Nagoya, and Shizuoka.[30] Ibaraki Prefecture became the first prefecture to establish a partnership system in January 2019,[31][32][33] and 25 more prefectures have since followed suit, including highly populated Tokyo Metropolis and Osaka Prefecture. All these jurisdictions together account for about 84% of the Japanese population.[34]

Same-sex marriage

Laws regarding homosexuality in Asia
Same-sex sexual activity legal
  Marriage performed
  Marriage recognized
  Other type of partnership
  Legislation or binding domestic court ruling establishing same-sex marriage, but no supporting legislation has been passed
  Legal guardianships or unregistered cohabitation
  Limited foreign recognition (residency rights)
  No recognition of same-sex couples
  Restrictions on freedom of expression
Same-sex sexual activity illegal
  Prison but not enforced
  Prison
  Death penalty on books, but not enforced
  Enforced death penalty

Same-sex marriage (同性結婚, dōsei kekkon, pronounced [doːseː kekkoɴ])[a] is not recognized in Japan. However, debate on the issue has emerged in recent years, with several political parties expressing support or openness to discuss the matter. Several lawsuits contesting the law barring same-sex marriage were filed in court in February 2019. In addition, numerous opinion surveys have shown high levels of support for same-sex marriage among the Japanese public, notably among women and the younger generation.

Background

On March 27, 2009, it was reported that Japan would allow its nationals to marry foreign same-sex partners in countries where same-sex marriage is legal. Japan had previously refused to issue a document, which states that a person is single and of legal age and is required for citizens to wed overseas, if the applicant's intended spouse was of the same legal sex. Under the change, the Ministry of Justice instructed local authorities to issue the key certificate to citizens who wish to marry their same-sex partners.[36]

In June 2011, the deputy head abbot of Kyoto's Shunkō-in temple announced that the temple would perform same-sex marriage ceremonies as part of Pride Month.[37] Similarly, in April 2020, the deputy head abbot of Kawagoe's Saimyouji temple, announced that he would perform same-sex marriage ceremonies.[38] Since 15 May 2012, Tokyo Disney Resort has allowed symbolic same-sex marriage ceremonies in its Cinderella's Castle hotel.[39] Its first same-sex marriage was held on March 3, 2013, between Koyuki Higashi and her partner Hiroko Masuhara.[40][41]

In March 2019, the Justice Ministry revoked a deportation order for a gay Taiwanese man who had remained in Japan illegally after overstaying his visa, giving consideration to his longtime same-sex relationship with a Japanese national. The Ministry issued a special residence permit to the man, who had lived in Japan for about 25 years. The Ministry's Immigration Bureau granted him a one-year resident visa after the Tokyo District Court suggested that it review the order.[42][43]

Constitutional wording

Article 24 of the Japanese Constitution states:[44] "Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis." Previously, a couple in Japan could marry only if their respective head of household (the father, or in the absence of a father, the eldest son) consented to the union. As a result, arranged marriage was the dominant form of marriage. Those couples who could not obtain permission had to elope and stay in common-law marriage. The purpose of Article 24 of the Constitution was to assert freedom of consenting adults to marry, and to explicitly establish the equality of both sexes in marriage. Some legal scholars argue that because the intent behind the article was not in reference to same-sex marriage, it need not apply in legalising same-sex marriage. However, conservative lawmakers as well as legal scholars who take a literal approach to constitutional interpretation argue that such an argument is a stretch.[45]

In February 2015, the National Diet debated whether same-sex marriage should be recognized under the Constitution.[46] Kota Matsuda, a member of the House of Councillors, said, "We need to eliminate lifestyle difficulties for same-sex couples. A prerequisite to achieving this goal is dealing with Article 24 of the Constitution." Prime Minister Shinzō Abe expressed his opinion on the issue:[46] "Extending the institution of marriage to same-sex couples was not anticipated under the current Constitution. It is an issue that concerns the very core of family values and, I believe, one that requires extremely careful consideration."

In July 2019, the Japan Federation of Bar Associations submitted a paper in support of same-sex marriage to the Minister of Justice, the Prime Minister, the Speaker of the House of Representatives and the President of the House of Councillors. The paper states that Article 24 does not ban such marriages as "the notion of same-sex marriage was beyond the scope of assumption at the time of [Article 24's] enactment", and that prohibiting it constitutes a breach of human rights, urging the National Diet to legalize same-sex marriage.[47][48][49][50]

Political viewpoints

The Constitutional Democratic Party of Japan (CDP), the Japanese Communist Party (JCP), the Social Democratic Party (SDP) and Reiwa Shinsengumi,[7] as well as the junior coalition partner Komeito, support legalising same-sex marriage.[8][51] Nippon Ishin no Kai also supports same-sex marriage, but believes a constitutional amendment is necessary to legalize it.[8] Individual lawmakers from the Liberal Democratic Party (LDP), including Taro Kono,[52] and Ken Saitō, have also expressed their personal support for same-sex marriage, as have members of the Democratic Party for the People, including party leader Yuichiro Tamaki.[9] The LDP, which has been in power almost continuously since 1958, is opposed to same-sex marriage.[53]

In January 2023, Prime Minister Fumio Kishida made the following statement about same-sex marriage during a parliamentary session: "We need to be extremely careful in considering the matter as it could affect the structure of family life in Japan".[54] Kishida said in March 2023 that he did not think banning same-sex couples from marrying is "unjust discrimination".[55]

Legislative activity

In December 2018, the Constitutional Democratic Party (CDP) announced it would introduce a bill in 2019 to amend the Civil Code to legalise same-sex marriage.[56] The bill was submitted to the National Diet by the CDP, the Communist Party and the Social Democratic Party on 3 June 2019. It sought to adopt gender-neutral language, with the terms "party of marriage" being used rather than "husband and wife", and "parents" rather than "father and mother".[57][58][59] In June 2019, the CDP added the legalisation of same-sex marriage and ending discrimination against the LGBT community to their party platform ahead of the 2019 House of Councillors election.[60] The bill did not advance before the 2021 general election. A new same-sex marriage bill was introduced to Parliament by the CDP in March 2023.[61] The Communist Party introduced its own bill on 27 March 2023.[62]

In September 2020, the Nagaokakyō City Assembly adopted a motion urging the National Diet to discuss the legalization of same-sex marriage.[63] Supporters of same-sex marriage hope the introduction of the partnership oath system in numerous municipalities will encourage parliamentarians to legalise same-sex marriage. The LGBT organisation Marriage for All Japan (Japanese: 結婚の自由をすべての人に, kekkon no jiyū o subete no hito ni) has also organised signature gatherings and meetings with lawmakers from across the political spectrum.[64] The organisation noted in particular that the COVID-19 pandemic had made same-sex couples more "vulnerable" and "anxious", as they could not visit each other in hospitals nor were they entitled to any legal recognition if one of the partners were to die.[65]

Court cases

Matsunaka Gon, the director of Marriage for All Japan, meeting U.S. Ambassador Rahm Emanuel to discuss the campaign to legalize same-sex marriage in Japan, April 2023

Cohabitation rights

On 4 March 2020, the Tokyo High Court ruled that cohabiting same-sex couples should be entitled to the same legal benefits as those granted to cohabiting heterosexual couples.[66] This ruling provided legitimacy to the plaintiff's same-sex relationship, allowing the plaintiff to sue her lesbian partner of seven years for infidelity, a move that was previously restricted to heterosexual partners.[5] The decision was upheld by the Supreme Court of Japan on 18 March 2021.

On 26 March 2024, the Supreme Court ruled that same-sex partners should be entitled to crime victims' benefits as surviving family members. The court overturned the decision of the Nagoya District Court which had denied granting Yasuhide Uchiyama, a gay man whose partner was murdered in 2014, the victims' benefits in June 2020.[67] Uchiyama applied for victim compensation from the Aichi Prefectural Public Safety Commission in December 2016 after his partner's murder but was rejected because they were both men. He subsequently filed a lawsuit, but his claim was later dismissed by the Nagoya district and high courts.[68] Japanese law on victims' benefits stipulates that those eligible for payments include cohabiting couples, but does not specify whether the couple has to be of the opposite or same sex. The Supreme Court held that the law was "meant to cushion the mental and financial blow for the bereaved family", and that "whether the victim's live-in partner is the opposite or same sex does not make an immediate difference in facilitating that reduction". It remanded the case to the Nagoya High Court to consider whether Uchiyama and his late partner were in a relationship equivalent to a common-law marriage.[69]

"Freedom to Marry for All" lawsuits

In November 2018, several same-sex couples throughout the country announced their intention to challenge the statutory same-sex marriage ban.[70] In January 2019, about a dozen same-sex couples applied for marriage licenses at different city offices in Japan.[71] Lawsuits, commonly known in the Japanese media as the "Freedom to Marry for All" lawsuits (結婚の自由をすべての人に訴訟, kekkon no jiyū o subete no hito ni soshō), contesting the same-sex marriage ban were filed by 13 couples on Valentine's Day, 14 February 2019, in district courts in Osaka, Nagoya and Sapporo, with two lawsuits also filed in Tokyo.[72] Another three couples filed suit in Fukuoka a few months later.[73] In February 2024, a same-sex couple in Sendai announced plans to file a seventh lawsuit challenging the ban.[74]

District court rulings

On 17 March 2021, the district court in Sapporo issued a judgment finding that the law banning same-sex marriage violated the constitutional rights of same-sex couples, specifically Article 14 of the Constitution of Japan, which bans discrimination on the basis of "race, creed, sex, social status or family origin".[73][75] However, the court rejected the request of the six plaintiffs (two male couples and one female couple) for ¥1,000,000 (equivalent to about $9,000 or £6,480) per person for the denial. The court rejected the government's argument that Article 24 of the Constitution (which defines marriage as based on the "mutual consent of both sexes") limits marriage to opposite-sex couples; plaintiffs argued that this article actually only bars forced marriage.[73][75] The Chief Cabinet Secretary, Katsunobu Katō, said at a press conference later that day that the Ministry of Justice would analyse the court ruling.[76]

Similar arguments were raised in one of the Tokyo District Court cases, in which hearings and oral arguments took place on several dates in 2019 and 2020. One of the plaintiff couples, Chizuka Oe and Yoko Ogawa, a couple for 25 years, argued that banning same-sex marriage violates articles 13 and 14 of the Constitution.[72][77] Lawyers representing the couples believed the ruling from the Sapporo District Court was likely to have a positive impact on the outcome of the other cases. However, in June 2022, the Osaka District Court upheld the ban on same-sex marriage as constitutional.[78] In November 2022, the Tokyo District Court ruled that the ban was in a "state of unconstitutionality" and that the government should establish a legal system recognizing same-sex unions, but did not explicitly declare the ban unconstitutional.[79] The plaintiff couples in the Tokyo case appealed the decision in December 2022.[80] On 30 May 2023, the Nagoya District Court ruled similarly to the Sapporo court, declaring the same-sex marriage ban unconstitutional, but rejected the plaintiffs' request for ¥1,000,000.[81][82] On 8 June 2023, the Fukuoka District Court ruled that the ban on same-sex marriage was in a "state of unconstitutionality", but "stopped short of fully declaring the ban unconstitutional" and rejected the plaintiffs' request for ¥1 million in damages.[13] The Tokyo District Court declared the ban unconstitutional in its second case and ruled in favor of the plaintiffs on 14 March 2024.[83][84]

Appellate court rulings

On 14 March 2024, the Sapporo High Court ruled on appeal that laws disavowing same-sex marriage were unconstitutional. The court ruled that banning same-sex couples from marrying violates the fundamental right to a family, and called for urgent government action to address the lack of legal recognition of same-sex unions.[85][83][86][87]

Koseki registry

In Japan, each citizen is registered through the koseki system whereby an individual is registered as a part of a household (while in the Western world, a birth certificate can act as a proof of identity). Koseki registration performs a somewhat similar role to marriage in the West as it endows a member of the same koseki legal power (as next of kin) in dealing with civil matters such as inheritance, hospital visits or the right to organise a funeral. Therefore, registering each other as a part of the koseki works as a substitute for Western-style marriage. As a consequence, Japanese same-sex couples, in the absence of same-sex marriage or civil partnership laws, often use adoption procedures to register themselves as belonging to the same household; where the older partner legally adopts the younger partner, which in absence of a spouse makes the only adopted child the sole executor of that household.

Public opinion

Support for same-sex marriage among 18–21-year-olds according to a 2016 survey from the Varkey Foundation

A May 2013 Ipsos poll found that out of over a thousand Japanese adult interviewees 24% were in favor of same-sex marriage and another 27% supported other forms of recognition for same-sex couples.[88] An April 2014 Ipsos poll found that 26% of respondents were in favor of same-sex marriage and 24% were in favor of some other form of recognition, such as civil unions.[89] A May 2015 Ipsos poll found that 30% of respondents were in favour of same-sex marriage and a further 28% were in favour of some other form of recognition (meaning that 58% supported recognising same-sex couples in some form).[90]

According to a survey by Nihon Yoron Chōsa-ka conducted on 1 and 2 March 2014, 42.3% of Japanese people supported same-sex marriage, while 52.4% opposed it.[91] Another poll conducted by Fuji News Network in April 2015 showed that 59% of respondents supported the same-sex partnership certificate system proposed in Shibuya and 53% supported same-sex marriage, the first time a poll had found majority support for same-sex marriage in Japan.[92][93] An additional poll conducted by the National Institute of Population and Social Security Research in November 2015 showed a 51% majority in support of same-sex marriage, unions or partnerships,[4] while 41% were opposed. People under the age of 20 were overwhelmingly in favor of same-sex marriage (72% support), whereas people aged 70 and over overwhelmingly opposed (24% support).[94] However, a September–October 2016 survey by the Varkey Foundation found that 53% of 18–21-year-olds supported same-sex marriage in Japan.[95] A 2017 opinion poll released by the NHK showed that 51% of Japanese people supported same-sex marriage.[96]

According to an opinion poll carried out by Dentsu in October 2018, 78.4% of Japanese people in their 20s to 50s were in favour of same-sex marriage.[97] Support was higher among women (87.9%) than men (69.2%), and was higher among younger respondents: 87.3% for people in their 20s, 81.2% for people in their 30s, 77.5% for people in their 40s, and 72.5% for people in their 50s.[98] The National Survey of Household Trends, a government survey carried out in 2018 and commissioned by the National Institute of Population and Social Security Research, showed that 71.9% of Japanese married women supported same-sex marriage. Levels of support were different between the different age groups: 92.1% for married women under the age of 30, 89.5% for those between the ages of 30 and 39, 83.2% for those between the ages of 40 and 49, 73.5% for those between 50 and 59, 59.3% for those between 60 and 69, and 42.2% for those aged 70 and higher.[99][100]

A 2019 opinion survey conducted by the Hiroshima Shudo University and published in November 2020 showed that 64.8% of Japanese people supported same-sex marriage, while 30.0% were opposed. Attitudes varied greatly with age, with 81% of 20–30-year-olds supporting, followed by 74% of people in their 40s and 50s, and 47% of people in their 60s and 70s.[101]

A joint survey by the University of Tokyo and The Asahi Shimbun, conducted between March and April 2020, showed that 46% of Japanese people favored same-sex marriage, 31% were neutral and 23% were opposed. Among supporters of the Liberal Democratic Party (LDP), support stood at 41% and opposition at 29%. This contrasted significantly with the opinions of LDP lawmakers, as a 2019 survey conducted shortly before the House of Councillors election showed that only 9% of LDP candidates supported same-sex marriage. Professor Masaki Taniguchi, who headed the survey, said it was rare to witness public opinion on a certain issue change so rapidly, noting that support had increased 14% from 2017.[102] A March 2021 poll from The Asahi Shimbun found that 65% of Japanese people supported same-sex marriage, with support rising to 86% among 18–29-year-olds.[5] A February 2023 Kyodo News poll showed that 64% of Japanese people supported same-sex marriage, while 25% were opposed.[103] A poll conducted the same month by The Asahi Shimbun found that 72% of Japanese people supported same-sex marriage and 18% were opposed.[104]

A March–April 2023 Kyodo News survey showed that 71% of Japanese people supported same-sex marriage, while 26% were opposed. Support was highest among respondents below the age of 30, at 85%. 62% of LDP voters also supported same-sex marriage.[105] A Pew Research Center poll conducted between June and September 2023 showed that 68% of Japanese people supported same-sex marriage, 26% were opposed and 8% did not know or refused to answer. When divided by age, support was highest among 18–34-year-olds at 84% and lowest among those aged 35 and above at 64%. Women (73%) were also more likely to support same-sex marriage than men (61%).[106] Support was highest among the religiously unaffiliated at 73%, and lowest among Buddhists at 66%.[107]

See also

Notes

  1. ^ Okinawan: どーしーぬにーびち,[35] dooshii nu niibichi, pronounced [doːɕiːnuniːbit͡ɕi]

References

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