|
Abstract
Japan came to have a legal system just after the Meiji Restoration.
It was strongly affected by Western Europe. Each and every law
is affected by the different countries and different periods.
Hence, they sometimes appear incompatible with each other.
I would like to analyze the fundamental principles in the Japanese
legal system through the interpretation of the fundamental codes.
In this task, the principles can be examined in three ways. First
is the change in the concept of liberalism. Second is the difference
between the Continental legal system and so-called Common law.
Third is the change from the Meiji Constitution to the Showa Constitution.
The most characteristic thing in the Japanese legal system is
that it does not have its own ideas.
Essay Plan
1. Introduction
2. General Remarks
3. From The Meiji Constitution to The Showa Constitution
3.1 The Significance of The Constitution
3.2 The Background of The Meiji Constitution
3.3 The Principles of The Meiji Constitution
3.4 World WarII and The Showa Constitution
4. The Penal Code And The Code of Criminal Procedure
4.1 The Background of The two Codes
4.2 The Principles of The Penal Code
4.3 The Principles of The Code of Criminal Procedure
5. The Civil Code And The Commercial Code
5.1 The Background of The Two Codes
5.2 The Principles of The Civil Code
5.3 The Principles of The Commercial Code
6. Conclusion
1. Introduction
I graduated from the Faculty of Law of
Waseda University and I have been teaching the Japanese Civil
Code and Penal Code and other legal topics in vocational schools.
While doing so, I have been considering the Japanese attitude
toward the legal system as part of my tasks.
The legal system which includes liberty and democracy is of European
concept. However, the Japanese must have had their own habits
and principles and have probably always suffered from the conflicts
between European ideas and their own principles. The conflict
between the legal system and Confucian ideas from China is a typical
example of this situation, although it appears clear that European
legal thought has overcome Confucian ideas in Japanese daily life.
For example, to claim a pay-rise is considered a fundamental right
for an employee, but he or she will not be respected if he or
she continues to press too eagerly for it.
Indeed, it is too big a task for me now to examine whether the
Japanese attitude toward the legal system is unique or not in
this essay. I think, rather, it is a good opportunity to discuss
the overall mainstream of Japanese legal thought through the interpretation
of laws, because I am going to be a lawyer and I am afraid this
is my last chance to pay attention to the balance of interpretation
of each Code.
2. General Remarks
(a) Law is a social norm, but its biggest
difference from other kinds of social norm is that law is enforced
by the power of the state.
So strong is the effect of law, that the realization and application
of lax depend on a syllogism. A main Premise is written or interpreted,
a Minor Premise is recognized and applied to the Main Premise,
and the conclusion is drawn. This procedure is just the same with
natural rules.
However, there is a big difference between social norms and natural
rules. In the case of social norms, the Main Premise is nothing
but an idea or thought, even if it appears to have a objective
value. For example, the proposition "A juristic act against
public policy or good morals is invalid" (Article 90 in the
Civil Code) appears natural, but that is because the state makes
people feel so and nobody can prove it. Therefore the social norm
is a problem not of sein but of sollen.
(b) Therefore law has an intention or aim in order to realize
some social demand which is caused by economic, political or social
facts. It is important to examine how historical facts affect
the legal system.
When we think of modern history, capitalism and liberalism have
been the two biggest factors. Still, capitalism and liberalism
changed from the 19th century to the 20th century. This change
affects the contents of the legal system. For example the Civil
Code has changed principle from classical liberalism to liberalism
amended by the idea of Welfare. I would like to think of this
aspect as a first dimension of the Japanese legal system.
The second dimension is the difference between the Continental
legal system and so-called Common Law. The Continental legal system
typified by the French legal system, has drastically changed its
principles since the age of revolutions and has entrusted powers
to the legislature. In contrast, Britain has changed its principles
very slowly, because it had already developed democracy to some
extent. The American legal system has contained the idea of antipathy
against the home country and legislature, and this situation brought
the power to review the constitutionality of laws. This conflict
between two legal systems affects the Japanese legal system.
Further, the difference of level in the legal system makes a
third dimension. This means that every legal system has a constitution
as the most fundamental law in its legal system, and each and
every law is affected by the constitution. Therefore, if the constitution
is re-written, the other laws must change their meanings according
to the new constitution. This situation actually happened in the
Japanese legal system. The Civil Code and the Penal Code go back
to the Meiji era, but after the new constitution was born the
two codes have changed their meanings in the legal system.
I would like to analyze the Japanese fundamental laws through
the interpretation of each code. In this essay, the first dimension
will appear mainly in the principles of private law. The second
dimension will appear in the gap between the Penal Code and the
Code of criminal Procedure. The third dimension will be treated
in chapter 3 through the change of constitutions in Japan.
3. Form The Meiji Constitution to The
Showa Constitution
3.1 The Significance of The Constitution
A constitution is obviously one of the
laws. What is law? It is usually defined as a social norm which
is supported by the power of the state. Law is an enforceable
rule of conduct.
There is always the danger of power being misused. The misuse
of power violates people's rights and liberties. Hence, there
must be something which can limit the power of the state in order
to protect the rights and liberties of the people. This is a constitution,
which was an invention to limit the power of the state in order
to protect human or civil rights.
Still, there is an argument about how constitutions have evolves.
According to C.H.McIlwain, "constitution" does not mean
anything more than supreme law, therefore it existed before the
Civil Revolutions (1776,1789 and so on), even in Ancient Rome.
He describes the progress of constitutionalism as a series of
slow steps from jurisdictio (no separation between rights and
legal order) to gubernaculum (unlimited by jurisdictio). He thinks
of modern contitutionalism not only as a legal limitation on government
but also as the political responsibility of the governors for
government.
In this way, there may be various definitions of "constitution",
but we can agree that it it's the greatest common measure, the
most fundamental law in a legal system. It exists at the top of
the legal system and affects the contents of each and every law.
In Japan, the concept of a constitution was imported after the
Meiji Restoration, as I shall mention later. The Meiji Constitution
was based on the idea of constitutional monarchy, although it
also included the idea of a divine origin based on the Imperial
Ancestors. However, the Showa Constitution is based on liberal
democracy : the principles of the constitution have completely
changed and the change cannot help affecting the contents of each
and every law. This is just like the situation when the movement
of a light changes the shape of obstacles.
Therefore, it is important to examine what kind of constitution
was introduced into Japan.
3.2 The Background of The Meiji Constitution
1854 was the year when Japan first appeared
in modern international law, because Japan then concluded the
Treaty of Friendship and Commerce with the United States of America.
It was not an equal treaty, but at least Japan was included in
international society as a sovereign state, not as a colony.
In the middle of the nineteenth century, the developed capitalist
countries of Western Europe had reached the stage of imperialism.
Japan started the absolutism of the developed capitalist countries
of Western Europe had reached the state of imperialism. Japan
started the absolutism of the Tenno (Emperor) after Meiji Restoration
of 1868. Japan had to catch up with those countries through state-led
development. This is the external element of the Meiji Constitution.
As for internal elements, European liberalism had been introduced
into Japan, and the movement for liberal democracy was relatively
active. Against this movement, the government promised to provide
a constitution and call the first imperial Diet (Parliament) by
1890.
Hirobumi Ito was chosen to go to Europe to investigate and study
European constitutions. He felt that the constitutional monarchy
of Prussia was the fittest system for Japan and decided to make
a system centred on the power of the Tenno. This enactment was
supported by Herman Roesler (1834-94) and Albert Mosse (1846-1925),
Prussian lawyers who were hired by the Japanese government.
3.3 The Principles of The Meiji Constitution
The characteristic principle of the Meiji
Constitution was the sovereignty of the Tenno. The sovereignty
of the Tenno was derived from two different sources.
The first was the idea of a divine origin for royal authority,
which in Europe had referred to the Christian God, but in Japan
was based on the idea of the Imperial Ancestors. The absolute
position of the Tenno has its origin in the Imperial line going
back to Amaterasu Omikami (the Sun Goddess) and Ninigi no Mikoto.
The second was constitutionalism. Even a person in a divine position
had to make politics and was subject to the constitution, because
Japan had to appear to be a developed country.
In this way, the constitutional monarchy was the result of a
compromise between monarchism and constitutionalism. Therefore
it is natural to have a great controversy about whether they are
compatible or not (in Europe itself as well as in Japan).
The sovereignty of the Tenno appeared in the political system
(1) as the main power in the legislative process (Articles 5,6);
(2) in connection with declaration of war and conclusion of treaties
(Articles 13); (3) in the administration of the civil service
(Article 10); and (4) as the prerogative of supreme command over
the armed forces (Articles 11,12). The legislative poser of the
Diet (Parliament)was limited and it did not have a structure to
reflect the people's will, because the House of Nobles had equal
power with the House of Representatives and the electorate was
limited according to property and excluded women.
The people's rights were not thought of as natural human rights
but as retainers' rights, which were protected within the limits
of "legal reservation". This is connected with the concept
of "rule by law".
The concept of 'rule by law' was developed through the history
of revolutions against the great power of the executive, which
were carried over from the old monarchies of the continental countries
of Europe. This principle requires that policies are fitted to
laws, because the legislature should be the more democratic political
institution. But this means at the same time that the people's
rights can be easily limited by legislation.
The Meiji Constitution failed to bring all the institutions into
a constitutional framework. The Genro (the Emperor's chief private
advisers), the General Staff and other important bodies were left
out of the legal system, so that, for example, the declaration
of war in 1941 and the surrender in 1945 were decided by the Tenno
and the General Staff, not by the Diet. The Meiji Constitution
was forced to its end by its external effects.
3.4 World WarII and The Showa Constitution
When Japan was defeated in World WarⅡ,
Japan had to accept the Potsdam Declaration. This required the
exclusion of persons responsible for war from politics; disarmament;
occupation by the Allied countries; the loss of Japan's colonies;
the restoration and consolidation of democratic methods; and the
establishment of fundamental human rights, which became the backbone
of the Showa Constitution. These principles were clearly incompatible
with the Meiji Constitution which had been based on the principle
of the sovereignty of the Tenno.
It has been reported, nevertheless, that the Japanese ruling
class thought they did not have to change the Japanese political
system. This led to G.H.Q issuing directives about constitutional
amendments to the Shidehara Cabinet.
A draft written by Matsumoto (Minister of State) was submitted
to G.H.Q, but Macarthur rejected it because its contents were
almost the same as the Meiji Constitution. MacArthur was already
notified about a plan of the State-War-Navy Coordinating Committee.
He indicated three principles, (1) the symbolization of the Tenno,
(2) the renunciation of war as a sovereign right of the nation
and (3) the abolition of feudalism. He decided to make the so-called
MacArthur draft with his staff, and this was completed in one
week. This draft included the first two of MacArthur's principles,
protection of the people's rights, a Parliament with one House,
the power of constitutional review for the courts of justice,
democratization of finance and protection of local self government.
Why did G.H.Q want to hurry in reforming the constitution?It
was because the Far East Commission had the final authority over
the new constitution of Japan and some of its member countries
were critical of the Tenno. Therefore the United States wanted
to present them with a fait accomli.
The Japanese government persistently resisted the MacArthur Draft.
For example, the government insisted that the Imperial House Law
could not be amended by the Diet, but this attempt was in vain.
The government insisted on the existence of a House of Nobles,
but G.H.Q suggested a compromise in having a upper house whose
members were democratically elected.
The new constitution was sanctioned and promulgated by the Tenno
after consultation with the Privy Council and decision of the
Imperial Diet in accordance with Article 73 of the Meiji Constitution.
In this way the new constitution was urged on Japan by external
pressure, which used the ideas of Western European democracy and
international pacifism, although the Japanese ruling class resisted
the new born political system. Indeed, it is important to know
that the masses did not necessarily oppose the new system. In
fact it is reported that a relatively large proportion of the
people supported the symbolization of the Tenno just after the
end of the War.
3.5 The Principles of The Showa Constitution
(a) As I have briefly shown, the new constitution
has completely different principles from the Meiji Constitution.
When we look at textbooks for junior high school students, (1)
the sovereignty of the people, (2) protection of people's human
rights and (3) renunciation of war are explained as the three
fundamental principles of the new constitution.
Still, generally speaking, every jurist emphasises respect for
the individual as the most important principle in the Constitution
of Japan (Article 13, "All the people shall be respected
as individuals"). At the same time we can find the words
"life", "liberty" and "the pursuit of
happiness" in the same article. These are derived from the
words of John Locke and of Thomas Jefferson (in the American Declaration
of Independence).
The constitution appears to adopt five fundamental principles
in order to realize respect for individuals. They are Liberalism,
Democracy, Welfare, Equality and Pacifism, and are embodied in
human rights and political institutions, both of which have been
considered as the two biggest elements in any constitution (for
Example, "every community in which a society of rights and
separation of powers is not provided for needs a constitution"
? Article 16 of the French revolutionary Declaration of the Rights
of Man). (b) The protection of human rights is the purpose of
the constitution. "Human rights" means that human beings
have rights simply because they are human beings, since human
beings must have existed even before the state was established.
This means that the constitution follows the Western tradition
of natural rights. Rights against the state, for example, freedom
of speech (Article 21), freedom of religion (Article 20), academic
freedom (Article 23) and the right to own or to hold property
(Article 29) are protected as natural rights. The constitution
also has articles about rights through the state, for example,
the right of existence (Article 25), the right to receive an education
(Article 26) and labour rights (Articles 27,28). Therefore the
constitution is considered to contain the idea of the Welfare
State.
This condition caused a change in the concept of equality. The
state is required to interfere in private relations in order to
realize substantial equality between rich people and poor people
("equality of condition", which is a different concept
from "equality of opportunity"). Substantial equality
becomes the reason why economic freedoms have a relatively large
possibility of being limited, and also the reason for The Double
Standard. The Double Standard is a principle which requires a
stricter standard by which to review constitutionality in the
limitation of spiritual freedoms in comparison with limiting economic
freedoms. (c) The political system can be defined as based on
the principle of protecting human rights. The characteristic thing
in the political system under the Showa Constitution would be
the new power to review the constitutionality of laws or policies.
As the result, the constitution can be evaluated as having the
idea of out-and-out "rule of law".
Rule of law is defined as the principle which is the opposite
of "rule of men" and requires that all the powers of
the state are restricted by just of right laws. It requires (1)
due process of law, (2) recognition of the supremacy of the constitution,
(3) protection of individual human rights and (4) the significance
of the role of the courts. The Showa Constitution has articles
on (1) due process (Article 31), (2) supreme law (Chapter 10),
(3) protection of individual human rights (Chapter 3) and (4)
the power to review constitutionality in courts of justice (Article
81).
There fore, none of the political powers, not even the legislature,
can violate just laws. This is the main difference from "rule
by law", under which all law had to be obeyed and could not
be reviewed. Also, human rights do not now have any reservations
except according to the principle of "Public Welfare"
(Articles 12,13 and 22:1, 29:2).
4. The Penal Code And The code of Criminal
Procedure
4.1 The Background of The Two Codes
(a) A penal code (or criminal code) can
be defined as a law which deals with crime and punishment. As
with other laws, the Penal Code is composed of requirements and
effects. In this case, crimes are the requirements and punishments
are the effects. For example in Japan, if someone commits a murder,
he or she will be punished by the death penalty, imprisonment
with forced labour for life or imprisonment with forced labour
for more than tree years (Article 199).
When someone is accused of a crime, he or she will not be punished
without due process. This is an example of protection under the
constitution, as I have shown in the previous chapter ("Rule
of Law", Article 31 of the Constitution of Japan).
When someone is sentenced to a punishment, it is necessary to
recognize the facts and apply the code to them. The procedure
is carried out in the courts of justice. The Code of Criminal
Procedure deals with this process.
Hence, the penal Code is called a "criminal substantive
law" and the Code of Criminal Procedure is called a "criminal
procedural law". (b) The Japanese penal codes were influenced
by Chinese norms until the Meiji Restoration, and they were used
to realize military society and military criminal laws, especially
through the Kujigata-Osadamegaki. It is surprising to know that
Kujigata-Osadamegaki had general articles about competence, intention,
negligence and so on.
The Western European notion of a penal code was introduced after
the Meiji Restoration in 1880, through what is called the Old
Penal Code. It was written under the supervision of Gustave Emile
Boissonade (1825-1910) who was hired from France by the Meiji
government. Therefore, the code was strongly affected by the French
penal tradition, especially the Napoleonic Penal Code. It contained
the idea of enlightened liberalism for citizens.
After that, the New Penal Code was established under the influence
of German criminal theory in 1907, and this code has been valid
until today, although some articles were abolished because of
the principles of the new constitution. The characteristics of
this code are that the criminal model is simple and the statutory
penalties are wide. For example, the crime of murder was divided
into strategic murder, murder by poison and so on, in the Old
Code. But the New Penal Code brought these into one article and
established the wide statutory penalties which I mentioned above.
This is the result of study of the theoretical ammendment of liberalism
in the late nineteenth century.
In modern criminal theory, generally speaking, the "classical
school" and the "modern school" have provided the
two main traditions. The classical school contains the idea of
modern rationalism, assuming an abstract rational man who has
free will, and basing responsibility on moral blame. Punishment
is the harm which is given as response to the crime. On the other
hand, the modern school denies or does not find importance in
free will and concentrates not on conduct but on types of personality
which are dangerous in society. Punishment is therefore education
or treatment in order to resocialize the criminal. The modern
school first appeared in the late nineteenth century, after people
began to realize that the classical school was invalid for certain
crimes, especially repeated offences and the increase in juvenile
crimes caused by economic and social confusion as a result of
the Industrial Revolution.
The New Penal Code was imported form Germany in this period,
therefore the requirements (crimes) and effects (punishments)
are widely cast and the judges came to have a large area of discretion.
However, as I shall show later, judges are relatively obedient
to classical criminal theory in exercising their competence.
In this way, the Penal Code is mainly affected by the European
continental penal codes, especially the German codes. (c) The
first Code of Criminal Procedure in Japan was also influenced
by Gustave Emile Boissonade and therefore by the Napoleonic Code
(in the so-called Chizai Ho of 1880). After the Meiji constitution
was enacted (in 1890) the Japanese legal system came to be strongly
affected by Germany, and what we now call the Old Code of Criminal
Procedure (the so-called Taisho Code of Criminal Procedure) was
enacted in 1922. It was evaluated as relatively liberal in comparison
with the first code.
However, a new code came into effect, under the influence of
United States, after World War・. The Japanese government wanted
to strengthen the power of the public prosecutor and judicial
police officers, but the attempt appeared to be incompatible with
the principles of the new constitution. Therefore more than ten
conferences were carried out between the Japanese government and
the American government, and some recommendations were provided
form the American side. It is considered that the articles about
interrogation of the suspect, the principle of indictment, the
listing of charges and the hearsay rule are the results of these
conferences.
According to the orthodox explanation of the history of criminal
procedure, modern criminal procedure be the French Revolution.
On the other hand, it is explained that in England the state did
not have such strong power and the defendant's rights had been
protected, for example the right to remain silent was maintained
throughout the feudal period. Prosecution was evaluated as a process
by which the prosecutor's assertions are shown to be right in
front of judges. On the other hand, this idea was modified in
the continental countries, especially France and Germany. Prosecution
was evaluated as a process by which judges themselves pursue the
Old Code to the common law practice of the Anglo-American theories.
4.2 The Principles of the Penal Code
What is a crime? With what elements does
a crime come into Existence? This is the problem of criminal theory.
According to the Japanese popular view, a crime is defined as
a conduct which fulfils the constituent elements, is illegal and
liable. When we think of a murder, for example, to take a person's
life fulfils the constituent element of Article 199 in the Penal
Code. Hence a criminal is going to be punished as a murderer.
However, if the criminal has a justification such as self-defence
or other grounds which bar liability, for example he or she does
not have mental competence, he or she must not be punished as
a criminal.
In criminal theory, various elements are examined from the general
to the concrete, from the objective to the subjective. This is
generally explained as being because the application of criminal
codes to the facts by judges should not be mistaken or misused.
Therefore to find a crime in the Penal Code is the first operation
in criminal adjudication.
Why must a crime be found in the written codes? This is the problem
of principle of the legality of crimes and punishment. The Principle
of Legality can be defined as a principle which requires that
there is no crime without statute and there is no punishment without
statute (nullum crimen sine lege) . This principle first appeared
in the textbook of Paul Anselm von.Fenerbach(1775-1833). But,
we can find its origin in the Magna Carta promulgated by King
John in 1215 and its development in the petition of Rights of
1628, the Bill of Rights of 1689 and in the legal tradition of
the United States of America. Further, France also took up the
same principle, and its purport has been reconfirmed in the human
rights declarations. In this way, this idea has come to be included
in the constitutions and penal codes of the European countries.
This principle explains that people must be informed of crimes
and the reason why a criminal can be punished is, not that the
criminal could not stop committing the crime, but that he or she
decided to commit it by his own free will. Therefore the principle
contains the traditions of the classical school and of liberalism.
However, the Principle of Legality lost its importance because
of the rise of socialism. In other words, because of the social
confusion resulting from the Industrial Revolution, people began
to think that the classical optimistic idea was invalid for contradictions
in capitalistic societies. Therefore liberalism began to be limited,
for example the Soviet Penal Code of 1926 and the Nazi amendment
of the German Peal Code embodied this idea.
On the contrary, the principle of legality was resurrected after
World War・. The German Constitution (Basic Law) of 1949 has a
general article about this principle. The Soviet Union also had
the same kind of article. The Universal Declaration of Human Rights
loudly proclaimed this principle too in 1948.
This principle can be understood as having three aspects. There
is no punishment, it means, without (1) a statute in advance (nulla
poena sine lege praevia), (2) a written statute (nulla poena sine
lege scripta), and (3) evident statute (nulla poena sine lege
stricta). The derivation of each principle means that (1) punishment
cannot be retroactive, (2) the penal code excludes customary law,
and (3) analogy in interpretation is prohibited in the penal code.
The Old Penal Code had articles about this principle, but the
New Penal Code does not have such articles. However, this is because
the constitution itself has clear articles (Article 31, 73 and
39). Therefore Japanese jurists also think of the Principle of
Legality as one of the most important principles in criminal theory.
4.3 The principles of The Code of Criminal
Procedure
(a) The purpose of the Code of Criminal
Procedure is to apply and realise the criminal substantial law.
This purpose is considered as the neutral and ultimate purpose
of the code.
How is the code to realise this purpose? This is the problem
of the substantial purpose of the code, and the answer is indicated
in Article 1 of the code, that is, to discover the truth while
protecting the fundamental rights of the accused and other people.
Indeed, there can be two ways of thinking about this problem.
If we put greater weight on the discovery of the truth, criminals
must be punished, even if someone is punished by mistake. If we
put greater weight on the protection of fundamental rights, we
must not punish the innocent person even if someone else may escape
punishment. It would be better, of course, if there were no mistakes,
but the human race is apt to make mistakes, therefore we have
to choose one or other of these approaches.
Article 1 does not clearly prescribe which is more important.
However, the substantial protection of fundamental human rights
through the due process of law gives us a hint that the second
approach is more in keeping with the principles of the Constitution.
Therefore he popular view follows the second assumption. (b) In
this way, it is the fundamental idea of criminal procedure to
recognise the facts without any mistakes, according to due process.
From this aspect, the next two principles follow. First is the
principle of presumed innocence, which is defined as the principle
to decide for innocence when the judge cannot decide guilt for
certain. The Code of Criminal Procedure has an article on this
principle, Article 336, and this principle means that innocence
is the general rule.
Second is the principle of judging by using proofs. It was not
until after the Civil Revolutions, strictly speaking, that judgements
were achieved by using proofs. Although the code of Criminal Procedure
simply declares the principle in Article 317, the article is interpreted
to follow the mainstream European theory. (c) Then how is the
code going to realise the discovery of the truth and protection
of fundamental rights? This is the problem of who should take
the initiative in the conduct of the criminal suit. One idea asserts
that the judges should take the initiative, another idea asserts
that the persons concerned - the public prosecutor and the accused
- should take the initiative.
Which is correct must be examined according to the purpose of
the discovery of the truth and the protection of fundamental rights
(due process). In order to realise the discovery of the truth,
it will be convenient to set up a battle between the two concerned
persons (the public prosecutor and the accused) who have the closest
interests and to make the judge observe their offence and defence.
In order to realise due process, the accused must be treated as
a substantive power in the suit, the accused must be treated as
a substantive power in the suit, not as an object of the examination.
Therefore most jurists believe that the Code of Criminal Procedure
contains the second idea the so-called principle of the persons
concerned. In fact, the code gives two main competences - the
decision in the suit (Article 312:1) and the selection of the
proofs (Article 298:1) - to the persons concerned, although the
code has opposite articles at the stage of search.
5. The Civil Code And The Commercial
Code
5.1 The Background of The Two Codes
(a) A civil code is usually defined as
a general code of private laws, while a commercial code is a typical
example of a special code, which deals with traders and commercial
transactions.
Japan did not have a well ordered legal system before the Meiji
Restoration, and it was one of the main reasons why Japan had
to conclude the unequal treaties with U.S. and the European powers.
Therefore, making a modern legal system became an urgent task
for the government at that time. Shinpei Eto was chosen as chief
of the Seido Torishirabe-kyoku (Institution Examination Bureau),
and he tried to translate the French Civil Code but failed. Boissonade,
a Professor of the University of Paris, was invited to Japan by
the government, and he drafted the first Japanese Civil Code,
modelled on the French Civil Code. Some scholars were obliged
to help and make him hurry up by the government.
The draft had a lot of articles which went against Japanese customs,
and the legal system itself was not completed. Therefore, there
arose a sharply critical response to the Code insisting that the
draft was nothing but a word-for-word translation and denied the
Japanese ie seido (family system). As a result, the Old Civil
Code was never brought into effect.
The Meiji government ordered Chikashige Hozumi, Masaaki Tomii
and Kenjiro Ume to draft the what is called New Civil Code in
1893. At that time, a German first draft had been announced, so
they referred to this draft, and the formalities were very similar
to the Germandraft, which is the so-called Pandekten. The draft
included real rights and claims as property law and relatives
and inheritance as family law. This civil code has been fundamentally
valid until today. However, the sections on relatives and inheritance
have completely changed their principles according to the new
constitution which includes freedom and equality. (b) A commercial
code can be defined as a special code which mainly deals with
enterprises. Enterprises play very important roles in various
fields, for example production, distribution, custody, transport
and insurance. The more complicated economic life becomes, the
more new types of enterprises are conceived. In such a situation
it is impossible to write all the legal relations into the Civil
Code. It is here that the Commercial Code comes into operation.
The Japanese Commercial Code has four volumes, on companies,
commercial tradition and maritime commerce and insurance. There
are some other laws, for example the Bills of Exchange Law or
the Cheques Law, which deal with relations among enterprises.
Still, companies, especially limited liability companies, have
become the biggest and most important kind of enterprise.
The origin of company law can be found in the concept of Commenda
contracts. This means that a capitalist can trust his capital
to a trader and make the trader do business and earn some benefits
from it. This kind of contract can be found even in ancient Greece
and Rome, but the form came to be widely used in the Mediterranean
world from the tenth century.
Commenda contracts affected family co-operation, for example
co-successors of a father's trade, and the concept of societas
was born in Italy and Germany in the feudal period. This requires
the equal contribution and capital participation of capitalist
and trader.
On the contrary, however, this reflects again the concept of
the Commenda contract. Commenda contracts came to consist of accommandita,
who appears as a trader, and participatio, who conceals himself
as a capitalist. These are the origins of General Partnership
and Undisclosed Association.
5.2 The Principles of The Civil Code
(a) As I mentioned before, a civil code
is defined as a general code, which deals with relations between
citizens and citizens, not those between the state and citizens.
The legal appraisal of activities between citizens can be divided
into three factors:(1) appraisal with respect to relationship
between persons (owners of rights), (2) appraisal with respect
to the subject matters of various rights, and (3) appraisal of
legal relations to be effected.
Legal relations in private law are framed as relations between
rights and duties in various social environments which are deemed
legally significant. Each person, whether a natural person or
legal person, is regarded as the principal of a legal relation,
or legal personality. A legal personality bears a subjective qualification
which is called a Capacity to Hold Rights. In this way, the Principle
of Equality in the Capacity to Hold Rights is the leading principle
in handling factor (1).
All matters existing in the world are able to be the subject
matters of rights. These are broken down into several categories
according to the ways the rights are exercised. The first category
is labelled "corporeal things" (Article 85); the second
"persons", dealt with separately from things, since
persons have will; the third "intangible things", which
are neither persons nor corporeal things. Capitalistic society
is based on transactions of products and labour as commodities.
Accordingly, private rights are considered to control, directly
or indirectly, the things of the natural world. In this way, the
Principle of the Absoluteness of the Right to Ownership is evaluated
as the leading principle in factor (2).
In private law, a juristic requirement (a specific fact) brings
about a juristic effect (a change in private rights). The juristic
requirement, which performs an important function in modern law
since it is dominated by the doctrine of self-government, is a
juristic act. A juristic requirement is composed of several (elementary)
juristic facts. A juristic act is a juristic requirement, the
elements of which are declaration of intentions. For it to take
effect, the law will render assistance. While some juristic activities,
for example, juristic requirement bringing about juristic effects,
are not composed of declaration of intentions, a juristic act,
which is a juristic requirement consisting of declaration of intentions,
is the most important under the doctorine of self-government.
In this way, the Principle of Self-Government can be evaluated
as the leading principle of factor (3). It includes the Principle
of Freedom in forming Juristic Acts on the positive side and the
Principle of Liability by Negligence (or Principle of Self-Responsibility).
(b) As I have shown, freedom and equality, which are the ideas
of civil society, are reflected in several principles; Equality
in the Capacity to Hold Rights, Self-Government, and the Absoluteness
of Ownership Rights. Still these principles are adjusted to fit
two more legal requirements.
The first is the realization of substantial equality, which is
also included as the most important principle in the Showa Constitution.
In order to realize substantial equality, three principles were
inserted into Article 1. They are (1) the Principle of Public
Welfare, (2) the Principle of Faith and Trust, and (3) the Prohibition
of Abuse of Rights. This aspect is called "socialization
of the Civil Code".
The second is safety in the transaction. For instance, a buyer
in acting bona fide can get its purchase, even if the seller does
not have the title to sell it. This good faith acquisition (Article
192) is a typical example of the adjustment. This aspect is called
"commercialization of the Civil Code".
5.3 The principles of The commercial Code
(a) I have written a short history of company
law, but limited liability corporations have a more important
role now. A corporation is an artificial being created to carry
out business on a large scale by gathering capital form a wide
field. It is, therefore, generally required that a large number
of persons be participants and owners of a corporation. "Stock"
and "indirect and limited liability" are the two characteristics
of a corporation needed to meet the above requirements. These
two characteristics establish the fundamental idea in the structure
of a corporation. (b) A share (or stock) is an owner's interest
in the form of a proportionate ownership interest in a corporation.
Let's assume that Person A owns land, Person B owns machinery
and Person C owns money. These three persons want to establish
a corporation. The structure of a corporation is convenient, because
it can form its own assets by owning rights and incurring duties
in its own assets by owning rights and incurring duties in its
own name. A shareholder's status is considered to be the transformation
of the ownership of actual property in relation to the corporation.
The liability of each shareholder is limited to the value at which
he has taken his own shares (Article 200:1).
A shareholder has no liability to the creditors' rights (indirect
liability). His liability is limited only to the said value (limited
liability). The public can make investments without anxiety, since
it is guaranteed by law that they shall not be liable for more
than the said value.
Since no shareholder has liability directly to the creditors
of the corporation, the creditors can levy only against properties
of the corporation. The "capital", which is a certain
amount of value provided bylaw, must remain in the corporation,
to protect the creditor's rights. The following are three principles
concerning capital. (1) Property equivalent to the value of capital
must be actually contributed to the corporation (principle of
the fullness of capital). (2) The said property must be actually
maintained in the corporation (principle of the maintenance of
capital). (3) The capital value, once established, may not be
arbitrarily decreased (principle of invariability of the capital).
6. Conclusion
As I have shown in this essay, the Japanese
legal system is composed of various elements, and each major European
country's legal system has contributed some tendency. Maybe we
can say that the most characteristic thing in the Japanese legal
system is that it does not have its own special ideas.
However, generally speaking, the Japanese government tried to
introduce the French legal system but it was not succesful in
the Meiji era. The reason is not clear today, but perhaps it would
have been too radical for the Meiji government. After that the
Meiji government found that the Prussian legal system was very
convenient for Japan and the government. It was the fittest legal
system for the "Late-Comer" capitalist countries, in
contrast with Britain, France and the United States of America.
After War・, the legal system of the United States came to affect
the Japanese legal system. This brought the legal thory which
is supported by the idea of the welfare state. Still, it is important
to confirm again here that the idea of welfare does not deny liberalism,
but rather promotes liberalism.
The Japanese are said to be apt to forget the importance of liberalism
or even not know the concept of civil rights, because they were
gained mainly by external pressure. I do not know exactly if this
is true or not now. However, the existence of gaps between ideas
and reality cannot become a reason to support the assumption,
because every legal system has this kind of gap.
I would be happy if I could examine the uniqueness of the Japanese
attitude toward its legal system in the near future.
Bibliography
H.L.A. Hart, THE CONCEPT OF LAW, The Claredon
Press, Oxford, 1961
Sir Paul Vinogradoff, COMMON SENSE IN LAW,
The Claredon Press, Oxford, 1959
Vernon Bogdanor (ed.), CONSTITUTIONS IN
DEMOCRATIC POLITICS, Gower, 1988
Richard W. Nice (ed.), TREASURY OF THE
RULE OF LAW, Littlefield, Adams & Co, Totowa, 1965
Nobuyoshi Ashibe, KENPO KOGI NOTE (Constitution
Lecture Note), Yuhikaku, Tokyo, 1986
Nobuyoshi Ashibe, KENPO HANREI HYAKUSEN
(100 Precedents on the Constitution), Yuhikaku , Tokyo, 1988
Koji Sato, KENPO (Constitution), Seirin-Shoin,
Tokyo, 1981
Eiich Hosino (ed.), MINPO HANRE HYAKUSEN
(100 Precedents on the Civil Code), Yuhikaku, Tokyo, 1989
Tokyo Legal Mind (ed.), Law for Citizens,
Tokyo Legal Mind, Tokyo, 1990 Hattori Eizo, KIHONHO KONMENTAKU
SHOHO, Nihon-hyoron-sha, Tokyo, 1991
Tokyo Legal Mind (ed.), Law for Merchants,
Tokyo Legal Mind, Tokyo, 1990
Hitoshi Otsuka, KEIHO GAISETSU (The Outline
of the Penal Code), Yuhikaku, 1984
Toyo Atsumi, KEIJISOSHOHO (The Code of
Criminal Procedure), Yuhikaku, 1988
|
