|
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
|
