HISTORY OF LAW IN JAPAN SINCE 1868

Transcription

HANDBOOK OF ORIENTAL STUDIES
HANDBUCH DER ORIENTALISTIK
SECTION FIVE
JAPAN
edited by
M. BLUM · R. KERSTEN · M.F. LOW
VOLUME TWELVE
HISTORY OF LAW
IN JAPAN SINCE 1868
EDITED BY
WILHELM RÖHL
BRILL
LEIDEN • BOSTON
2005
This book is printed on acid-free paper.
Library of Congress Cataloging-in-Publication Data
The Library of Congress Cataloging-in-Publication Data is available on
http://catalog.loc.gov
ISSN 0921-5239
ISBN 90 04 13164 7
© Copyright 2005 by Koninklijke Brill NV, Leiden, The Netherlands
Koninklijke Brill NV incorporates the imprints Brill Academic Publishers,
Martinus Nijhoff Publishers and VSP.
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PRINTED IN THE NETHERLANDS
CONTENTS
Prefatory Notice ..........................................................................
vii
Chapter One: Generalities (Wilhelm Röhl ) ................................
1.1 Periods of Development ................................................
1.2 The Scope of Japanese Law ........................................
1.3 Types of Rules and Promulgation ..............................
1.4 Foreign Influences ........................................................
1
1
11
16
23
Chapter Two: Public Law (Wilhelm Röhl) ................................
2.1 Constitutional Law ........................................................
2.2 Administrative Law ......................................................
29
29
96
Chapter Three: Civil Code ......................................................
3.1 General Provision (Ronald Frank) ..................................
3.2 Property Law—Real Rights (Hans Peter Marutschke) ....
3.3 Law of Obligations (Ronald Frank) ................................
3.4 Family Law (Petra Schmidt) ............................................
3.5 Law of Succession (Petra Schmidt) ..................................
166
166
205
227
262
305
Chapter Four: Commercial and Corporate Law in Japan
(Harald Baum/Eiji Takahashi ) ..................................................
4.1 Introduction ..................................................................
4.2 The Early Years (1868–1899) ......................................
4.3 Rise and Fall (1900–1945) ............................................
4.4 Reconstruction and Economic Miracle (1946–1980s)
4.5 The Structural Crisis of the 1990s—Some
Afterthoughts ..................................................................
Chapter Five: Intellectual Property and Anti-Trust ................
5.0 Literature (General) ......................................................
5.1 Inventive Activity, Intellectual Property, and
Industrial Policy (Christopher Heath) ................................
5.2 Patent Law (Christopher Heath) ......................................
5.3 Utility Model Law (Christopher Heath) ..........................
5.4 Design Law (Peter Ganea) ..............................................
330
330
335
362
381
399
402
402
403
423
443
452
vi
contents
5.5 Trade Mark Law (Christopher Heath) ............................
5.6 Unfair Competition Law (Christopher Heath) ................
5.7 Copyright Law (Peter Ganea) ..........................................
5.8 Anti-Trust Law (Christopher Heath) ................................
466
483
500
523
Chapter Six: Labour Law (Hans Peter Marutschke) .................... 544
6.1 Pre World War II Development ................................ 544
6.2 Labour Legislation & Development after WW II ...... 554
Chapter Seven: Social Law (Wilhelm Röhl ) ..............................
7.1 A Short Historical Reminiscence ................................
7.2 Social Security/Insurance Law ....................................
7.3 Social Welfare Law ......................................................
570
570
572
601
Chapter Eight: Penal Law (Karl-Friedrich Lenz) ........................ 607
Chapter Nine: Procedural Law ................................................
9.1 Administrative Litigation and Administrative
Procedure Law (Lorenz Ködderitzsch) ..............................
9.2 Law of Civil Procedure (Wilhelm Röhl ) ........................
9.3 Law of Criminal Procedure (Petra Schmidt ) ..................
9.4 The Courts of Law
Appendix: Execution of Penalty (Wilhelm Röhl ) ..........
Chapter Ten: Legal Education and Legal Profession
(Wilhelm Röhl ) ..........................................................................
10.1 Legal Education ..........................................................
10.2 The Judge ....................................................................
10.3 The Public Prosecutor ................................................
10.4 The Lawyer ................................................................
10.5 Notes on the Staff of the Ministry of Justice ..........
627
627
655
681
711
770
770
782
789
800
823
Index .......................................................................................... 829
PREFATORY NOTICE
This book is not the work of a single author or a continuously cooperating team. Each chapter or section is the contribution of a jurist
from the German-speaking region1 who is fairly acquainted with
Japanese law. By profession, some of them are engaged in scientific
research, others in juridical business. Each author is responsible for
his or her individual contribution.
The authors describe the development of the Japanese law, referring to separate branches, from the beginning of modern times which
started when the Shogunate declined and a State comparable to
western nations took the first steps in the late sixties of the 19th century. The descriptions continue the book “A History of Law in Japan
Until 1868” by Carl Steenstrup, published in Handbuch der Orientalistik (Handbook of Oriental Studies) in 1991. Also in our book
a glimpse at earlier conditions will be made occasionally in order
that the reader’s understanding of the changes might be made easier.
The question is at what stage does a historical description of law
which verges on the present state of affairs actually come to an end.
The authors were not unanimous in their opinion. In principle, the
idea was not to produce a textbook or reference book on the law
in force today, but instead to describe the road towards the laws of
today. A mass of literature on current Japanese law has been published, and there one may find explanations of the legislative procedure, the reasons for a new law and its effect as well as the attitude
of the Japanese to contemporary law.
If we would choose a motto for this book a remark of Confucius
(Analects, Book 1, Chapter XI) which reads
ONKO CHISHIN
in Japanese and means ‘research into the past assists us to understand the future’ could be considered suitable.
1
Prof. Dr. Eiji Takahashi had a part in chapter “Commercial and Corporate
Law in Japan”.
CHAPTER ONE
GENERALITIES
Wilhelm Röhl
1.1
Periods of Development
The exact starting point of the Meiji restoration and the circumstances
connected with the introduction of new political and social conditions
is much disputed, with various arguments. Historians assume that the
idea of a reform originated
– in 1853: first arrival of the US commodore, Matthew Perry,
who presented a message from the president of the United States of
America demanding to open up Japan and establish trade relations
(S. Hattori),
– in 1841: plans to stabilize the regime and promote the economy were intended to remedy the unsound state of affairs.1 The
plans failed but revealed the predicament of the system, and that
the final decline of the bakufu could not be stopped—consequently,
a thorough reformation was inevitable (S. Tòyama),
– in the 1830s: the climax of the rising of reformers in Osaka
and other parts of Japan (K. Inoue),
– in 1837: the riot of H. Òshio, a scholar and police-court magistrate in Osaka who endeavoured to help the poor and was angered
by the indifference of the city authorities; the riot, instigated by himself and his friends, was the most important event during the risings
in the 1830s (H. Horie and T. Ishii).
The end of the Meiji restoration’s period is also controversially argued:
– in 1890: opening of the diet (Hattori),
– in 1877: rebellion of Takamori Saigò of Kagoshima (Satsuma),
a famous and loyal soldier and statesman, who in 1873 as a state
councillor together with other politicians had favoured a war against
Korea, then retired to Satsuma where he founded a private school
1
See G. Sansom, A History of Japan 1615–1867, pp. 207–227 [221–227] (1964).
2
generalities
to which the youth of south-west Kyushu (mostly of samurai pedigree)
flocked in great number. The government suspected him of preparing a riot which actually broke out in 1877. His troops were defeated
by the government army (in the so-called South-West War (seinan
sensò )), and this rebellion was the last warlike conflict in a series of
actions against the new order (Tòyama),
– in 1873: reform of the land tax which modernized the legal
relations with respect to real estate. It made the land value the basis
of taxation instead of the amount of production, ordered the tax to
be paid in money instead of in kind, and thereby contributed to the
paving of the road to capitalism (Inoue),
– in 1884: Chichibu incident. Uprising of farmers in the Chichibu
district (Saitama prefecture) who were distressed by debts and a
slump.2 They were supported by the Liberal Party3 and well organized, demanding the reduction of land tax, the village expenses to
be halved, opposition to conscription, and the establishment of a
diet. Their attacks on district bureaus, police stations, and wealthy
people were quelled by the military. This event was one of the spectacular final uprisings4 under the influence of the liberal-democratic
movement ( jiyù minken undò ) which pervaded the decade from the
mid-seventies. In autumn 1884 the Jiyùtò, the first democratic party
in Japan, was dissolved. At the same time the dominant group of
the liberal-democratic movement broke up (Horie),
– in 1889: enactment of the Imperial Constitution (Ishii).
Whichever of these theses is reasonable does not seem to be of major
significance. Generally speaking, in the first half of the Meiji period
domestic development is characterized by gradually superseding
feudalistic structures, building up a centralized empire in the spirit
of absolutism, heading for a constitutional government, persistently
establishing a capitalistic system, and preventing disruption of the
new order. From the point of view of foreign affairs the predominant
concern was to come to terms with foreign powers and to achieve
2
The deflation policy of the Minister of Finance, M. Matsukata, resulted in
low prices with unchanged tax burden.
3
The first Jiyùtò (1881–1884) was the core of the liberal-democratic movement.
It advocated a radical liberalism of French style.
4
Other uprisings happened in the Fukushima prefecture (1882) and the Gunma-,
Niigata-, Ibaraki- and Nagano prefectures (1883–1884), mainly caused by the oppression of the Jiyùtò by the authorities.
periods of development
3
the revision of the treaties which the bakufu had concluded with the
USA and some European states.
In the second half of the Meiji era (1890–1912) the pre-eminent
affairs were the consolidation of capitalism and the push towards
industrialization. The opening of the diet in November 1890 met
with a long advocated demand from political groups, and a strong
motive which caused former uprisings to be thereby settled. The
government intensified the realization of the motto ‘national prosperity and powerful armed forces’ ( fukoku kyòhei ) by promoting industry. The victorious wars against China (1894–1895) and Russia (1905)
demonstrated that military strength had been accomplished. In 1899
new treaties with foreign countries on an equal level became effective.
Japan gained international influence.
Experts of Japanese legal history prefer their own division of periods of development; the opinions differ greatly. For example:
– Y. Suzuki, Hòritsushi (History of Law [from the Meiji period]),
p. 20 et seq., (1960) argues as follows: (i) From the return to the
Imperial regime (1867) to the abolition of clans and the establishment
of prefectures (1871); transition from the feudalistic system to the
unified state. (ii) As a result of that, a swing to creating a uniform,
centralized, absolute monarchy, and then to an enlightened monarchic
state. This was demanded by the people involved in the liberaldemocratic movement (1874–1889) who opposed the autocracy of the
clan faction. The call for modern industry and revision of the unequal
treaties required the adjustment of a new legal order. (iii) Enactment
of the Constitution and thereby founding a constitutional system in
the disguise of a centralized power but actually an absolutist one.
(iv) From the first diet (1890) to the end of the Meiji era (1912); continuance of the authority of the clan faction and bureaucracy—more
or less modified, but on the other hand development of capitalism;
formation of the class of industrial capitalists. Gradual maturing of
political parties which, however, existed only in compromise or combination with the strength of the clan faction and were not yet able
to realize democracy; they were supplements to the military and the
bureaucracy. The strife between the authorities and the people continued. Japan, after having won two wars and acquired colonies,
became an empire and developed into a strong imperial state of a
semi-feudal and militaristic nature. The class difference intensified,
and workers’ and socialist movements were oppressed. (v) Proceeding
4
generalities
to the time after Meiji: the Taishò (1912–1926) and early Shòwa
periods (1926–1931) were marked by a rapid move towards new
riches as a consequence of the First World War; influence of current international attitudes, expansion of democratic views; workers’
and farmers’ movements; organization of socialism and communism.
All that coincided with the mightiness of monopolistic, plutocratic
circles (zaibatsu) looking to establish their predominance in politics—
however, under the stability of the tennò system the power of the
military and the bureaucracy could not easily be broken. The exercise of this power and that of the monopolists and land-owners, particularly since they joined together, concurred, based upon the relative
increase of the monopolists’ might, with the state oppression of the
workers’ and farmers’ movement and the advance of foreign connections. The world panic of 1931, especially the inconsistency of
Japanese monopolistic capitalism, caused a deep national crisis. People
got into serious difficulties and became dissatisfied with the corruption of the established political parties and the inefficiency of the
powerless parliamentary policy. The government’s antidote was the
strict limitation of freedom of opinion and the thorough repression
of socialist and communist trends. Opposition to this state of affairs
was raised by young officers and cadets of the navy and army, and
a drift from nationalists to national socialists became evident. The
clash of political goals and actions resulted in the disintegration of
the masses, armaments industry, growing prosperity of monopolistic
capitalism, and finally defeat in the Pacific War, loss of the colonies,
forfeiture of foreign investments, destruction of production equipment, and many temporary but vital blows. The Constitution of
3 May 1947 opened a new epoch.
– R. Ishii, Meiji bunkashi, 2: hòseihen (Cultural History of the Meiji
Era, vol. 2: Legislation), pp. 9–16 (1954); translated by W.J. Chambliss,
Japanese Legislation in the Meiji Era, pp. 13–23 (1958), divided the
Meiji legislation into three phases. With regard to the relationship
of these three phases, the first (1868–1881) forms a traditional link
between modern feudal law and contemporary law; the second phase
(1882–1898), during which the modern codes became effective, represents a preliminary modernization of law; and the third phase
(1899–1912) is occupied generally with the enforcement of the codes
without any further amendment. In the last phase the codes were
applied by the letter of the law, the outcome of which did not always
meet the true meaning of the borrowed foreign law or the indigenous legal understanding.
5
– The four editors (N. Ukai, M. Fukushima, T. Kawashima,
K. Tsuji) of the Kòza Nihon kindaihò hattatsushi (Lectures on the History
of the Development of Modern Japanese Law), vol. 2 (1958), pp.
313 [325]–334, explained in a round-table discussion the subdivision
of periods taken as a basis for the lectures:
1st period: preparation of the legal system, 1868–1888,
2nd period: establishment of the legal system, 1889–1914,
3rd period: rearrangement of the legal system, 1915–1931,
4th period: collapse of the legal system, 1932–1945.
The first period was characterized by the disorganization of the bakufu
and clan feudalistic structure, the creation of the tennò system, and
a centralized ruling bureaucracy. It was a time of transition which
also had an impact on the legal order. There was a mixture of oldfashioned law which did not separate public from private law, and
modern law of western style. While the contents of the laws showed
several trials and errors, the appropriate items gradually emerged
step by step. In this period the Japanese engaged many foreign advisors who lent a hand in legislative and administrative work, which
was directed towards the pressing aim of achieving revision of the
unequal treaties concluded in the fifties and sixties.
To characterize the second period as the ‘establishment’ of the
legal system means that the new system had to find its position in
the conventional Japanese legal habits to which the people were
accustomed.5 Laws on modern conditions requiring a formal law,
such as banking, the stock exchange, or a mortgage on a factory were
problem-free. But the law of Japanese origin was, at that time, of a
certain diffuseness, and it was not a matter of course that the western law, characterized by specificity, would get along with the Japanese
counterpart. There were striking examples of legislative opposition6
to western notions which, on Japan’s road towards full recognition
as a modern state according to occidental ideas, had found their
5
There is much literature about the topic. To mention some basic books in a
western language worthy of intensive study: e.g. A.T. von Mehren (ed.), Law in
Japan, The Legal Order in a Changing Society (1963); G. Rahn, Rechtsdenken
und Rechtsauffassung in Japan (Legal Thinking and Legal Opinion in Japan) (1990);
H. Coing (ed.), Die Japanisierung des westlichen Rechts (The Japanization of Western
Law) (1990); H. Menkhaus (ed.), Das Japanische im japanischen Recht ( Japanese
Elements in Japanese Law) (1994).
6
E.g. Constitution—Imperial Rescript on Education (1890), slight extension of
the suffrage—Peace Police Law (1900), freedom of assembly (within the scope of
the laws, art. 29 of the Constitution)—restriction under the Peace Police Law.
6
generalities
way into the Japanese law system. The new legal institutions hardly
meant a thing to the people. The final result of the ‘establishment’
was that the introduction of foreign elements, although outwardly
accomplished, made the system complicated and put jurists and laymen into a state of uncertainty.7
The exciting third period began with the economic boom during
World War I and the subsequent collapse. An enormous price increase,
especially with regard to rice as the basic food,8 caused riots, and
the living conditions of the people got worse, further intensified by
the disastrous earthquake of September 1923. Claims and rights (kenri)
of the individual, provided for in the Civil Code, had not actually
become general knowledge, and the government, urged on by the
public unrest, enacted new legislation for the most crucial areas of
the community: laws on tenancy and land tenure as well as on mediation in the case of an argument between landlord and tenant, and
also in mercantile matters and labour disputes.9 Moreover, in the
field of labour law social signals were made: Factory Law (enforced
from 1916), Health Insurance Law (enforced from 1926/7), Law on
the Minimum Age of Industrial Workers of 1923.
In the area of public law the right to vote was extended to males
of at least 25 years of age without, as previously, the requirement of
a certain level of taxation. Under this new Law for the Election of
Members of the House of Representatives (Shùgi’in gi’in senkyohò, originally of 1890) of 5 May 1925, enforced from the next election on
20 February 1928, the percentage of voters increased to 19,44.10 In
obvious connection with this increase, the Law for Maintenance of
the Public Peace (Chian iji hò) of 22 April 1925, enforced from 12
May 1925, enlarged in 1928, and amended in 1941, made sure that
the people would not err from the right path: under art. 1 the Law
was directed at persons who, aiming to change the national polity
(kokutai ) or to disown private property, organize an association or
7
Due to the peculiar attitude to written law, the Japanese had and have difficulties
adopting the strict observance of a clearly specified regulation that is meant to be
compelling. In short: “The rigid obedience to the laws is not the uppermost goal in
life”, Z. Kitagawa, Rezeption und Fortbildung des europäischen Zivilrechts in Japan
(Reception and Development of the European Civil Law in Japan), p. 160 (1970).
8
1 shò (1,8 litre) cost 12 sen before the war and 50 sen in August 1918.
9
G. Rahn (note 5), pp. 130–158, calls the 1920s the ‘Social Period’ and also
evaluates the turn of the judicature and the jurisprudence with consideration for
the social reality.
10
M. Hasegawa, Shòwa kenpòshi (History of the Showa Constitution), p. 26 (1961).
7
join such an association in knowledge of the circumstances. That
meant a struggle against communists, but the Law was used to suppress the freedom of opinion, speech, and political activity of the
common people.
Those laws were the result of an increase in consideration of the
demands of the people, some of whom formed clubs or groups, or
joined political parties in order to pursue their requests, made them
generally known, and caused the authorities to act.
In view of the said state of affairs the term ‘rearrangement’ indicates that—after about forty years of forming a new legal system by
bringing in western juridical thoughts and methods—the characteristic
of the third period is the government’s focussing on the social conditions of the people, partly settling them, but also preventing antigovernment disturbances or even sentiments.
‘Collapse’ of the legal system in the fourth period means that the
political events stopped the beginnings of a democratic development,
as had appeared in the Taishò (‘Taishò Democracy’) and the early
Shòwa years. The influence of political parties had become strong,
and since 11 June 1924 (first Katò cabinet) party cabinets had continuously been in power.11 The old motto ‘national prosperity and
powerful armed forces’ (see above) had not lost its effectiveness as
the device of the government, and in the late twenties the predominant
political parties were keenly guided by the capitalist monopolists
(zaibatsu) and the military. The interest in social improvement decreased,
and the interconnection between government, zaibatsu, and some
high-ranking militarists resulted in financial scandals, bribes, and
favouritism of particular capitalist concerns. Dissatisfaction grew
steadily among large groups of the people: workers, farmers, small
businessmen, subordinate officials, and many young men who had
been educated under nationalist ideology. Specifically, junior officers and
cadets of the armed forces disliked the state of affairs. The nationalist
and militarist sentiments, stimulated also by jingoism in foreign countries (Italy, Germany), the memory of the Russian revolution, and
the distress caused by the world economic crisis gave vent to acts of
11
The prime minister came from the strongest party in the House of Representatives.
Until May 1932 the two great parties ‘[Constitutional-]Party of Political Friends,
[Rikken-]Seiyùkai’, and ‘[Constitutional-]Democratic Party [Rikken-]Minseitò’ provided
the prime minister alternately.
8
generalities
violence: on 15 March 1928 and 16 April 1929 large-scale persecutions happened. In view of the fierce confusion in China the
Japanese Kantò (Kwantung) army was on stand-by to protect Japan’s
involvement in Manchuria, in the course of which Japanese officers
murdered the supreme commander there, Zhang Zuo-lin, on 4 June
1928, and the tension between Japan and China culminated in the
explosion of a bomb on the rails of the South-Manchurian Railway
near Mukden on 18 September 1931. The Kantò army at once
occupied the whole of Manchuria. This ‘Manchurian incident’ was
the start of the war against China which lasted fifteen years. While
the Kantò army could hardly be kept under control, the military at
home begrudged the result of the London naval armament limitation
conference of 193012 and, just like the nationalists, held the party
system responsible for the difficulties Japan had to endure as regards
domestic and foreign affairs. After Prime Minister Hamaguchi had
been assaulted by a nationalist in 1930 and died of his wounds (1931),
members of the ultra-nationalist ‘blood brotherhood club’ (ketsumeidan)
murdered a former minister (of the Democratic Party), and a manager
of the Mitsui zaibatsu (1932), Prime Minister Inukai of the Party of
Political Friends, was assassinated on 15 May 1932. The murderers
were young officers of the navy and army who, on that day, stormed
the headquarters of the said party, the Bank of Japan, the residences
of the lord keeper of the privy seal and other leading men, as well
as the Tokyo police headquarters. This event ended the party government, and from then on the militarists and sympathizing bureaucrats formed, or had a hand in forming, whole nation cabinets which
remained in power until 1945. The development of legislation and
legal functioning was not unlike the circumstances in other totalitarian states. Public law was predominant; many laws and ordinances
concerned the preservation of the nationalistic attitude towards the
spirit of the time, the political direction, and the prescribed way of
life. After having experienced the unrest of the late Taishò- and early
Shòwa period the ‘whole-nation’ government aimed at strict discipline of the people as an imperative regimen, particularly since the
nation was at war with China and—from 1941—the Pacific region.
The main worries were leftist ideas or actions and military readiness. Accordingly, the regulations for domestic peace and order were
12
Japan had agreed to maintain its navy on a reduced level in relation to the
United States and Great Britain.
9
tightened: the Law for Maintenance of the Public Peace of 1925,
last amended in 1941; enactment of the Law for the Supervision of
Offences Involving Dangerous Thoughts (Shisòhan hogo kansatsu hò ) of
1936; enactment of the Law for the Special Control of Seditious
Papers (Fuon bunsho rinji torishimari hò ) of 1936, and the Law for the
Special Control of Speech, Publications, Assemblies, Societies and
the Like (Genron shuppan shùkai kessha tò rinji torishimari hò ) of 1941.
These laws further restricted the rights of the people, unsatisfactorily granted as they were under the Constitution. The law most
severely intruding upon rights and liberties was the National General
Mobilization Law (Kokka sòdòin hò ) of 1 April 1938, amended in 1939
and 1941, art. 1 of which read: “General mobilization under this
law denotes that, in times of war (including war-like events), in order
to attain the objective of national defence the direction of manpower
and material resources shall be enforced so that all powers of the
country will most effectively be manifested”. The Law enabled the
government to regulate various fields such as labour, financing, materials, prices, enterprises, energy, traffic, and trade. Thereupon the
diet was no longer involved in matters of concern for the common
people and their daily life. The clause “in times of war” did not at
any time discontinue the application of the Law since there was war
(with China) when it was enacted, and war never ceased until the
end of the Pacific War in 1945. When the Law was repealed in
December 1945 the country had been governed for seven years by
all-powerful militarists and bureaucrats who issued orders and
ordinances that intruded also on multifarious private conditions. But
in that nationalist period the authorities laid stress on traditional
Japanese moral concepts in which individuals firmly believed openly,
or at least in their hearts. The principles were loyalty to the emperor,
love of the fatherland, filial piety (this being one with loyalty to the
emperor as the head of the great national family), and harmony
inwardly and outwardly. Under these creeds the people could be
easily guided and put into a patriotic mood. Actually, the mental
state of the nation was a sign of the aversion to becoming carried
away by the western way of life.
Jurists educated in a climate with a strong influence of foreign
patterns could fairly speak of the collapse of the legal system if that
meant the breakdown caused by war, the danger of war, or the turn
to politically defined order. However, on the other hand, genuine
notions found their feet again. This, in turn, stood, in the view of
10
generalities
the victorious powers, in the way of democratizing Japan which was
their objective after the end of the Pacific War.13 The first steps of
the ‘reorientation’14 were the change of the position of the tennò, the
ban on the previous definition of kokutai,15 enactment of the Labour
Union Law (Ròdò kumiai hò ) of 1945 and the Labour Relations
Adjustment Law (Ròdò kankei chòsei hò ) of 1946, agrarian reform, and
dissolution of the zaibatsu and militaristic organizations.
The enforcement of the Constitution of Japan (3 May 1947) made,
in its wake, the revision of many laws necessary. In every field of law
US-American ideas found their way into the Japanese system. Around
1950, as an effect of world politics (confrontation USA-Soviet Union,
Korean war) the politics of the occupying power regarding Japan
began to change its chief objective from democratic improvement to
reestablishment of the political and economic stability. This ‘reverse
course’ was thought to be of use to American interests in a dangerous situation. In particular, the demand of General MacArthur,
Supreme Commander of the occupying power, in spite of art. IX
of the Constitution of Japan to set up police reserves and even the
Japanese rearmament, meant in the eyes of many Japanese a selfish
break with high peace ideals, and created the suspicion that Japan
would be used as an American military base. In any case, the occupying power had made itself unpopular when the occupation ended
in 1952 following the San Francisco Peace Treaty of 1951/2 and
the Mutual Security Act (MSA).16 From then on Japan took steps
to gradually review the legal system regarding issues less well-suited
to Japanese legal conception.
13
Potsdam Declaration of 26 July 1945.
The Supreme Commander for the Allied Powers (SCAP) did not issue laws
and ordinances but advised and controlled the Japanese legislator.
15
The official document ‘Kokutai no hongi’ (The true meaning of the national
polity) of 1937 was an essential in education. The document was forbidden in
December 1945, and the Fundamental Law of Education (Kyòiku kihonhò) of 1947
replaced the Imperial Rescript on Education (Kyòiku chokugo) of 1890.
16
MSA means originally the Mutual Security Act between Japan and the USA
of 1954, but is also used as a collective term for a set of treaties on cooperation;
S. Tabata, Nichibei sògo bòei enjo kyòtei ( Japanese-American Mutual Security Act), in:
Nihon kindaishi jiten (Dictionary of Modern Japanese History), ed. by Kyoto University,
p. 454 (1958).
14
the scope of japanese law
1.2
11
The Scope of Japanese Law
I. At the time of the resignation of the last Shogun and restoration
of the Imperial regime the Japanese territory extended to the four
main islands Honshù, Kyùshù, Shikoku, and Hokkaidò; offshore islands
and islets were integrated step by step. This area was the homeland
(naichi ), which became a unit of the administrative system.
Hokkaido lagged behind since it had not yet been completely colonized. At first it was administered by the Colonization Bureau
(kaitakushi ) which was dissolved in 1882 and succeeded by a prefectural administration put under the direct control of the cabinet from
1886. In 1890 it came to be treated in much the same way as the
other prefectures controlled by the Home Ministry. The first law court
was set up at Hakodate on 8 January 1874, its circuit being limited to the south-west tip of Hokkaido covering the regions nearest
to Honshu: Toshima, Yamagoshi, Kutò, Futoro, Sedana, Okujiri,
Shimamaki, Suttsu, Utasutsu, and Isoya.2 From October 1881 there
existed the Hakodate High Court with the same limited circuit;3 the
High Court was moved to Sapporo on 15 December 1921.4 District
courts were established at Sapporo (1882), Asahigawa (1916), and
Nemuro (1882, from 1916 at Kushiro). Together with the remaining Hakodate court and several local courts Hokkaido was sufficiently
provided with lawcourts.
II. Overseas regions ( gaichi ) became subject to Japanese control
from 1895: Taiwan (Formosa), Karafuto (South Saghalin), Chòsen (Korea),
Kantò-shù (Kuandung), and Nanyò-guntò (South Sea Islands); these were
different judicial areas.
1. Taiwan (and Hòko-guntò = the Pescadore Islands) were ceded to
Japan under the peace treaty with China of 17 April 1895, concluded
at Shimonoseki after a war of about eight months. Japan set up the
‘Office of the Governor-General of Taiwan’ (Taiwan sòtokufu) at Taipeh.
Attached to it was a lawcourt (Taiwan sòtokufu hòin) for civil, criminal, and non-contentious cases; there were two instances equivalent
1
Ryòsuke Ishii, Meiji bunkashi, 2, hòseihen (Cultural History of the Meiji Era, vol.
2, Legal System), 1954, p. 17 et seqq. Adapted translation by William J. Chambliss,
Japanese Legislation in the Meiji Era, 1958, p. 27 et seqq.
2
Shihò enkakushi (A History of Justice), 1939, compiled by the Ministry of Justice
and edited by the Hòsòkai ( Jurists’ Association), p. 24.
3
Shihò enkakushi (note 2), at 67–68.
4
Loc. cit. (note 2) at 814.
12
generalities
to district and high court.5 The high court had two divisions: retrial
division (3 judges), and revision division (5 judges); actually, a case
could run through three instances. A problem as to the laws to be
applied in Taiwan arose when a relevant bill was deliberated in the
diet in 1896. Under this bill an imperial ordinance would determine
which Japanese laws were to be in force in Taiwan; additionally,
the Governor-General was authorized to enact regulations as laws
(ritsurei ) within the area of his responsibility. The point of the dispute
was whether the Japanese Constitution, which was unanimously
regarded as operating in Taiwan, covered such a far-reaching authorization, or the law-making power of the diet was infringed. The diet
passed the Bill, and it was enforced as Law no. 63 in March 1896. It
was planned to be in force for three years but was renewed three
times and finally superseded by Law no. 31 of 11 April 1906. In effect
it reiterated the former rules ordering that “the whole or part of a
law” which should be operative in Taiwan was to be determined by
imperial ordinance and that the Governor-General could by ordinance
regulate “matters in need of law”; these ordinances might not violate
the laws or relevant Imperial ordinances. The effect of Law no. 31
was scheduled for four years but twice renewed and made permanent
by the Law Concerning Statutes to be Applied in Taiwan (Taiwan
ni shikò subeki hòrei ni kansuru hòritsu) of 15 March 1921. This law provided for specific rules, should they be required under particular circumstances in Taiwan. Details were regulated by Imperial Order no.
407 of 18 September 1922, thereafter amended several times.
Japanese judges and public prosecutors were transferred to Taiwan
in order to dispense justice.
2. On 5 September 1905 Japan and Russia signed the peace-treaty
of Portsmouth ending the war between them which had been declared
in February 1904. Under the treaty Japan gained power over additional regions: South Saghalin, Korea, and Kuandung.
(i) The Russian South Saghalin (in Japanese: Karafuto) was ceded
to Japan6 that regarded it as an external territory and an indepen5
For a brief description of the court system in the gaichi see Hajime Kaneko,
Saibanhò (Law of Judicature), 1959, pp. 55–56.
6
South of the 50th degree N.lat. This region had been sparsely inhabited by
Japanese since the 18th century; Russians descended upon Saghalin in the early
19th century. The Japanese claimed ownership but there was no border between
them and the Russians; the actual situation was that both of them executed control. On 7 May 1875 Japan and Russia concluded a treaty by which the Kurile
13
dent legal zone since the laws and ordinances for the homeland could
not be applied there straight away. Japan set up the Karafuto Office
(Karafutochò) at Korsakoff ( Japanese name: Òdomari) as the administrative
authority, and at the end of March 1907 the Law Concerning Statutes
to be Applied in Karafuto (Karafuto ni shikò subeki hòrei ni kansuru hòritsu),
by which it was decreed that an Imperial ordinance was to determine those statutes as a whole or in part, was enacted. Special
Imperial ordinances would regulate the following matters: /a/ concerning native inhabitants, /b/ concerning the competence of administrative bureaus or public offices, /c/ concerning judicial time limits,
/d/ concerning counsel, process attorneys, or successors to an action
who are selected or appointed by a court or presiding judge ex
officio. These special provisions made allowances for the mixed population, the remoteness of the region, and the dispersed ethnic groups.
In the following years many Imperial ordinances relating to this
system were issued. A new ordinance of 3 May 1920, Special Usage
of Laws Operating in Karafuto (Karafuto shikò hòritsu tokurei) repealed
eight of them and—after numerous amendments—included 36 articles in 1942 by which the application of a large number of Japanese
laws was regulated in detail, in particular with regard to controlling
authorities, legal deadlines, exception of particular articles, and the
like. Worth mentioning is art. 1: “Civil matters of the natives of
Karafuto (except the Ainu) in which no outsider is involved will be
dealt with according to established custom. Legal proceedings in the
above matters will follow the court’s expedience”.
Lawcourts were set up as in the homeland. A district court and
a local court were opened at Vladimirofka (renamed Toyohara by the
Japanese, now Juzno-Sachalinsk) and a local court at Maoka on
1 April 1907. A branch of the Vladimirofka local court was established
at Korsakoff in September of the same year.7 The circuit of the
Sapporo High Court was extended to include Karafuto.
(ii) The name ‘Korea’ derives from Kòrai, one of the medieval
states in that region. When a unified state had been founded in 1392
it assumed Chaoxian, Japanese: Chôsen, as its name. However, the
Japanese called it Kankoku.8 After many centuries of Chinese dominance,
Islands were ceded by Russia to Japan in exchange for southern Saghalin that
remained Russian territory until 1905 and became Russian again in 1945.
7
Shihò enkakushi (note 2), at 236, 241.
8
Kan = ancient name of separate regions of Korea, later of all Korea.
14
generalities
China acknowledged Korea’s independence when the Chinese-Japanese
war was brought to an end.9 Great powers competed for influence
in Korea; in particular Russia and Japan enforced their interests.
Under art. 2 of the Treaty of Portsmouth10 Russia conceded Japan’s
political, military, and economic prerogative in Korea. On 17
November 1905 Japan and Korea concluded a treaty11 under which
Korea became a Japanese protectorate. Japan installed a ‘Resident
General’ (tòkan) and ‘Residents’ (rijikan).12 That the Residents were
authorized to dispense justice was enacted by Law no. 56 of 25 June
1906; appeals against their decisions were adjudicated by the Court
of the Resident General (tòkanfu hòmuin). When Korea had been
annexed by Japan in August 191013 it was renamed Chòsen, which
became the official name instead of Kankoku. Japan set up the Office
of the Governor General (sòtokufu) as the highest regional authority
which replaced the Office of the Resident General. The term rijikan
remained as the denomination of the chief administrative official in
a district (dò).14 On 25 March 1911, a law similar to that for Taiwan
of April 1906 was promulgated: the Governor General was authorized to issue ordinances, and the applicability of Japanese laws was
subject to imperial order. Already in October 1910 a court system
of three instances had been established: District Court (chihò hòin),
Court of Retrial ( fukushin hòin), and High Court (kòtò hòin). The courts
were attached to the Office of the Governor General.
(iii) The province of Kuandung (Kantò-shù) with the towns Port
Arthur (Ryojun), and Talien (Dairen) and their surroundings was Chinese
territory. China had leased it to Russia for 25 years in 1898. Russia
assigned the leasing rights to Japan with the consent of China under
the terms of the Treaty of Portsmouth.15 Japan set up the Office of
9
Art. 1 of the peace treaty concluded at Shimonoseki on 17 April 1895. Heibonsha
(ed.), Nihon shiryò shùsei (Collection of Materials for Japanese History), 1956, p. 529
no. 119.
10
Collection (note 9), at 539 no. 150.
11
Loc. cit. (note 10), p. 541 no. 158.
12
The text of the treaty notes the word ‘resident’, meaning ‘governor’ in Japanese
syllabary as an explanation of the Japanese terms.—For the ‘Office of the Resident
General’ (tòkanfu) see chapter ‘The Public Prosecutor’. The first Resident General
from December 1905 to June 1909 was the famous statesman Hirobumi Itò.
13
Text of the treaty in Collection (note 9), p. 542 no. 158.
14
Korea was divided up into 13 districts, Regulations Governing the Organization
of Local Authorities in Korea (Chòsen chihòkan kansei ).
15
In 1915, Japan and China agreed that the lease would run until 1997. At the
end of World War II the territory reverted to China.
15
the Resident-General of Kantò (Kantò sòtokufu) at Liaoyang (Ryòyò).
Soon afterwards, the Office was transferred to Port Arthur and
renamed Kantò totokufu (Office of the Governor General of Kantò).
The Governor-General was a military officer. In 1919 the Office was
dissolved, and two separate authorities were established: the Kantò
Department of Administration (kantòchò) the chief of which could be
a civilian, and the Kantò Military Headquarters (Kantò gunshireibu).
Thereby the Japanese Kantò army became independent of the civil
administration.
Under the Treaty of Portsmouth Japan also acquired the leasing
rights to the South Manchurian Railway with all its installations, branch
lines, and vast surrounding areas. The main line under Japanese
control ran from Changchun ( Japanese: Chòshun) to Port Arthur. On
7 December 1906, the South Manchurian Railway Company (Minami
Manshù tetsudò kaisha, abbr. Mantetsu), a state policy company, was
founded. It managed the railway business, kept many enterprises, and
played an important part in the region. Together with the Kantò
Department, the Kantò army, and the garrisons it formed the base
of Japan’s operations there. Since the public status of Kantò-shù
differed from that of Taiwan, South Saghalin, and Korea the Japanese
Constitution was not regarded as applicable, so that all matters
deferred by the Constitution to statute law were accepted as matters
to be dealt with by imperial ordinance. A district court (chihò hòin) and
a high court (kòtò hòin) were set up in 1908. They were attached to
the Office of the Governor-General and, later, the Kantò Department.
(iv) The former German colonies in the South Sea, north of the
equator, i.e. the Caroline (including Palai), Marioana, and Marshall
groups, became a mandate territory of Japan under the treaty of
Versailles (1919). Japan called the territory ‘South Sea Islands’ (Nanyò
guntò) and established a government (nanyòchò) on the island of Koror,
south of Palau, and branch offices in the other island groups. On
1 April 1922 a court of law (nanyòchò hòin) opened at Palau, and three
local courts were founded at Palau, Saipan and Ponape. The fact
that the Council of the League of Nations had given a mandate of
type C meant that Japan gained the authority to administrate the
territory, make laws, and declare Japanese laws applicable.17
16
South of Mukden.
K. Usui, Nanyò inin tòjichi (South Sea Mandated Territory), in T. Kawade (ed.),
Nihon rekishi daijiten (Great Dictionary of Japanese History), 1959, vol. 14, p. 181.
17
generalities
16
1.3
Types of Rules and Promulgation
It is an element of a modern legal system that laws and regulations
are classified and made public to all the population or at least the
affected persons, e.g. within the administration.
I. In pre-modern times, the Tokugawa bakufu and the bureaucracy,
as well as the domain offices, used quite a number of terms as headings for their rules. Seemingly, it is not always clear whether the
term can be assigned to a particular kind of written rules or a specific
group can be derived from the use of a heading. Nevertheless, some
terms should be introduced here in order to show the variety of
legal directives and the difficulty in choosing the appropriate word
in translation.
1. Customary (unwritten) law was of great importance but it does
not tell us anything about denomination, classification, terms, and
the system of regulations set by the government or administrative
offices.
2. Written law consisted of authoritarian rules and judicial precedents. In many cases a law was promulgated not in the form of a
code but of a single special law. These laws were occasionally collected and compiled, and thus used as a code. There were official
collections as well as private ones. The most important official collection was the Kujikata osadamegaki (Laws Given by the Shogunate
for Use in Litigation) of 1742. It was in two parts; the first included
81 legal documents of administrative and civil law, the second dealt
with judgements on penal and procedural law. Since there appeared
to be no attempt to frame a system according to the types of the
laws with regard to the headings, the titles did not show any order,
and the legal quality of the rules (law or administrative ordinance)
cannot properly be discussed under modern criteria such as parliamentary procedure and enabling statutes.
Prior to the Meiji Restoration the different terms for written legal
rules can help to understand which authority had enacted the rules
and in which way they had been promulgated.
(i) Primary lawgivers1 were
a/ the Shogun and his functionaries. Very important laws were
promulgated in the Shogun’s name, or, upon his order, by a mem1
The common word for a law was hatto. In the early period of the Edo era it
types of rules and promulgation
17
ber of the Council of Elders (ròjù). Members of the Council of Elders
enacted laws directly in the form of a message ([o]kakitsuke)2 after
having acquired the knowledge of the Shogun’s decision. If necessary, they issued a notification (tsùtatsu) to the area concerned or a
decree ( fure or [o] furegaki ) to the general public. A message which
was made known only to the government office or person(s) concerned was called an ‘order’ (tasshi ).
b/ The rulers (daimyò ) of the feudal domains (han). There were
about 270 of them. Their independence from the bakufu was limited, but they could enact laws for their domain provided that they
did not contradict the rules fixed by the Shogun and his officials.
As the size of the domains varied the administrative organizations
were accordingly great or small. The Daimyo’s chief retainers controlled the domain on his behalf and upon his orders. Legislature
and executive were not separated, therefore, regarding formality there
was no difference between laws, ordinances, decrees, orders, and
decisions. In some domains the number of official regulations was
immense: e.g. the rules given in the Okayama domain during the
Edo period were edited in two volumes of 781 and 1008 pages in
1959.3 Generally, the way of making law was similar to that of the
Shogunate.
c/ Other law-makers controlled particular circles, e.g. the emperor
for his court (supervised by the bakufu), village meetings, and guilds.
3. Usually, the government orders were intended to be publicized;
the words fure and tasshi mean ‘announcement, proclamation’ and as
verbs ‘to make known’. However, there were exceptions to the proclamation to all the people: the above mentioned tasshi or intentional
secrecy.4
appeared in the title of fundamental laws. Another general term for a law was okite.
Orders of an authority were often headed sadame (regulation), hence the name of
the above mentioned collection osadamegaki.—For the definition of terms see D.F.
Henderson, The Evolution of Tokugawa Law, in: Studies in the Institutional History
of Early Modern Japan, ed. by Hall and Jansen, 1968, pp. 215–220.
2
The honorific syllable ‘o’ was prefixed to emphasize that a high authority had
ordered it.
3
The Okayama han was one of the largest fiefs (G. Sansom, A History of Japan
1615–1867, 1964, p. 211). The collection of the regulations was attended to by
R. Ishii and edited by the Society for the Study of Clan Law, in the series Hanhòshù
(Collection of Clan Law).
4
K. Miura, Hòseishi no kenkyù (Study of the History of Law), 1924, p. 149 et seq.
18
generalities
The pre-Meiji authorities used various methods of promulgation,5
the main ways being via a chain of messengers, which differed from
region to region, and notice-boards.
(i) In Edo the laws and decrees of the government were handed
over to the town commissioners (machi bugyò; one each in northern
and southern Edo), who in turn passed them on to the town aldermen (machi toshiyori ), who then forwarded them to the headmen
(nanushi ) of the blocks (groups of buildings) via the respective headman on duty that year. The nanushi had to inform the land- and
house-owners of his block of the contents of the law, and order them
to instruct their tenants.
(ii) Notice-boards (kòsatsu or takafuda or tatefuda) were wooden boards,
usually with a narrow roof, on a post erected at Nihonbashi (the
main bridge) and other well-known or crowded places in Edo, as
well as at certain spots on the major highways leading to Edo. Laws,
ordinances, decrees etc. were written on the board to announce them
to the public. Those who could not read were assisted by people
who could read, moreover, the regulations were transmitted orally
within the neighbourhood and other social groups. The same method
of promulgation was used in the country, towns and villages, also
for orders from the Daimyo. Instead of wooden notice-boards,
announcements written on paper and posted at administration buildings or wall-writings were often used.
(iii) Special means were used to transmit messages or orders to
temples and shrines since the controlling authority was not the town
commissioner but the temple and shrine commissioner ( jisha bugyò ),
and in matters for which the finance commissioner (kanjò bugyò ) was
responsible.
II. When the last Shogun resigned and the imperial reign was restored
the ancient daijòkan (formerly also read dajòkan), which had remained
extant through the centuries as the supreme council of the politically powerless emperor, was revived as the highest authority of
government.6
5
For details see Henderson (note 1), p. 216 et seq.
The dajòkan system remained in force until the establishment of the Cabinet
(naikaku) in 1885.
6
19
(i) In order to breathe new life into old expressions the government
and the administrative authorities used words which had been introduced centuries ago and had grown uncommon in the Tokugawa era.
– Fukoku, which like fure means ‘proclaim, let know’, was the term
for a law issued by the dajòkan and directed at an administration
office or the common people. However, in the early Meiji years this
usage was not strictly adhered to; there were several examples of
different denominations or lawgivers.7 But in 1873 it was decreed
that from 4 May of that year onwards all orders of nationwide validity were to be issued in the name of the Head Minister (dajòdaijin),
and in February 1872 the numbering of legislative documents had
begun. Since the fukoku of the dajòkan were the most authoritative
acts of written law the Supreme Court occasionally called them hò
or hòritsu (law or a law), terms which were already in common usage
and became official in 1886. Special rules about the dates of enforcement of the laws made sure that the people could get timely knowledge of their contents.
– Tasshi (order) was, as before, an instruction addressed to an
administration office and officials. If the order was issued by the
dajòkan then it was called dajòkan tasshi. The chambers of the dajòkan,8
the ministries (shò), the Hokkaido Colonization Department (kaitakushi ),
and the prefectures were also empowered to issue tasshi and futatsu.9
– Futatsu (literally: to spread orders, promulgate them) were orders
directed to the common people, or the nobility, the samurai, or the
temples and shrines. Tasshi and futatsu were as binding as a law.
– Special words for provisions in the early penal laws10 were sei,
rei and shiki, the meaning of which was not clear. In March 1875
the Ministry of Justice explained them as follows: “Imperial edicts
are sei, official announcements of a chamber of the dajòkan or a ministry are rei, ordinances issued by a prefecture are shiki ”. But the
clause “In the case of a severe offence this shall be regarded as an
7
Kame’ichi Hosokawa, Nihon kindai hòseishi (A History of Modern Japanese Law),
1961, pp. 14, 15.
8
When the domains had been abolished and prefectures established on 29 August
1871, the dajòkan was reorganized into three chambers (in): Central Chamber (sei’in),
Right Chamber (u’in) and Left Chamber (sa’in) on 13 September 1871.
9
Orders of the prefectures were also called jòsoku (articles). If these concerned
the judicature they had to be collected and reported four times a year to the
Ministry of Justice and the High Courts.
10
Shinritsukòryò and Kaiteiritsurei, see chapter ‘Penal law’.
20
generalities
offence against sei, even when a chamber, a ministry, or the Hokkaido
Colonization Department had issued the order (rei); the relative gravity of the offence must be decided on when the case comes to an
end” left the boundaries between the groups open.11
(ii) The method of promulgation of the laws and decrees by means
of notice-boards was continued, and a fukoku of 1868 aimed at providing a reliable announcement by ordering that writing which had
become illegible due to wind and rain had to be instantly renewed.
The pre-Meiji notice-boards were done away with everywhere in
April 1868, and the new government set up two kinds of noticeboards: for lasting laws (sadame sansatsu) and for summaries of administrative orders or penal provisions (oboefuda). 12 Other ways of
promulgation were the distribution via messengers to local authorities, and the posting of decrees and proclamations in front of district
courts or prefectural offices and residences of village heads. The
notice-boards were removed after a few years, and the whole system of publication was planned to be replaced by promulgation in
the Official Gazette (kanpò) created in 1883. Because the announcements reached the prefectures at different times, special clauses regulated the date of enforcement of the decrees and proclamations,
generally the seventh day following their arrival in each prefecture.
Publication in the Official Gazette meant that other ways of transmission became unnecessary, and an order of the dajòkan of December
1885 ruled that the fukoku and futatsu were official when issued in
the Official Gazette.
III. On 22 December 1885 the dajòkan dissolved, and the cabinet
system was established. By an imperial edict of 26 February 1886 the
Formalities for Public Documents (kòbunshiki ) were enacted. The legislative acts were called ‘law’ (hòritsu), ‘imperial edict’ (chokurei), ‘cabinet decree’ (kakurei ), ‘ministerial decree’ (shòrei). A law required the
consultation of the Senate ( genròin).13 Laws and imperial edicts were
drafted by the Cabinet or a minister who had to submit his draft
11
K. Hosokawa (note 7) at 19.
For details see K. Miura (note 4) at 152 et seq.; K. Hosokawa (note 7) at
13–14; R. Ishii, Meiji bunkashi, 2, Hòseihen (Cultural History of the Meiji Era, vol.
2: Legal System), 1954, p. 32 et seq., translated by W.J. Chambliss, Japanese
Legislation in the Meiji Era, 1958, p. 43 et seq.
13
This legislative council existed from 1875 to 1890. The parliament was opened
no sooner than in 1890.
12
21
to the Cabinet: the Prime Minister (naikaku sòridaijin) sent the drafts
to the Emperor and asked for his consent. Cabinet and ministerial
decrees were issued by the Prime Minister and the responsible minister.
Besides these, there were ordinances (meirei ) of all kinds. Laws and
ordinances had to be published in the Official Gazette, they became
effective seven days after the arrival of the Official Gazette at the
prefectural office. The district authorities were also empowered to
enact ordinances.
The formalities for Public Documents were amended and renamed
‘Law Concerning Forms of Promulgation’ (kòshikirei ) by an imperial
edict of 1 February 1907. It laid down the principle that legislative
acts were promulgated by the emperor and required the countersignature of the Prime Minister alone or jointly with the responsible minister. The various laws, ordinances, and similar documents
were published in the Official Gazette. This procedure constituted
official announcement, and, generally, a law was to come into force
after the lapse of twenty days calculated from the day of its promulgation; this time limit had already been introduced by the Law
Governing the Application of Laws (hòrei) of 21 June 1898.
IV. (i) The new Constitution of Japan (Nihonkoku kenpò), in force from
3 May 1947, brought in the term ‘government ordinance’ (seirei ), to
be enacted by the Cabinet in order to implement the provisions of
the Constitution and the statutes; Constitution art. LXXIII para 6.
Unless authorized by statute the Cabinet may not assign duties or
impose limitations of rights or establish penal regulations; loc. cit.
and Cabinet Law art. 11. The government ordinance must be signed
by the responsible minister and the Prime Minister, it is promulgated by the emperor, Constitution arts. VII and LXXIV.
Other terms in the words of the Constitution are
– hòritsu (preamble, art. VII and passim) = a law, statute by parliament.
– meirei (arts. XVI, LXXXI, XCVIII) = an ordinance or order14
decreed by an executive agency. There are enforcement ordinances
and delegated ordinances. The above mentioned seirei is one form
of an ordinance; others are sòrifurei (ordinance of the Prime Minister’s
14
The official (American) English translation of meirei, given out by the secretariat
of the Cabinet, says ‘ordinance’ in arts. XVI and XCVIII, and ‘order’ in art. LXXXI.
22
generalities
office, hòmufurei (ordinance of the Cabinet’s bureau of legal affairs),
shòrei (ministerial ordinance), and gaikyoku kisoku (regulations decreed
by the head of an extra-ministerial office).15
– kisoku (arts. XVI, LVIII, LXXVII, LXXXI) = regulation or rule.16
– hòrei (preamble) = laws and ordinances.17 The meaning of this
collective term is also occasionally used for other orders: e.g. the
kisoku and official acts are included (art. LXXXI and its headline),
as well as the regulations established by the local public entities
( jòrei ),18 and Supreme Court rules.19 The usage is not definitely fixed.
– hòki = legal maxim. The Constitution uses this term only in the
compound saikò hòki = supreme law, art. XCVIII, to emphasize its
rank.
(ii) The Government Ordinance no. 4 of 3 May 1947 repealed
the Law Concerning Forms of Promulgation; the matter was not
regulated by a new separate law.
The rule of law demands that all laws and ordinances will be made
known to the public—except enactments concerning matters that
only have an influence in particular circles, e.g. ordinances of the
diet pertaining to meetings, proceedings, and internal discipline,
Constitution art. LVIII para 2. The promulgation of amendments
to the Constitution, laws, government ordinances, and treaties is an
act to be performed by the emperor, Constitution art. VII clause 1.
Other provisions about promulgation can be found in various laws
and ordinances, e.g. art. 16 para 2 of the National Public Service
Law (kokka kòmuin hò) of 1947: the regulations of the National Personnel
Authority ( jinji’in) must be promulgated in the Official Gazette.
Generally, ordinances are to be published. Under art. 16 para 2 of
the Local Autonomy Law (chihò jichi hò) of 1947 the same applies to
the regulations of the local public entities.
15
Committees and special departments attached to a ministry, e.g. the Committee
for the Inspection of Public Safety (kòan shinsa i’inkai ), and the Department for
Investigation of Public Safety (kòan chòsachò) at the Ministry of Justice; National
Government Organization Law (Kokka gyòsei soshiki hò) of 1948, arts. 3 para 3, 13,
and attached list no. 1.
16
The translation (note 14) says ‘regulation’ in arts. XVI and LXXXI, ‘rule’ in
arts. LVIII and LXXVII.
17
Translation (note 14).
18
T. Satò/S. Hayashi (ed.), Hòrei yògo jiten (Dictionary of Statutory Terms), 1959,
p. 665, headword hòrei.
19
Constitution art. LXXVII, Code of Criminal Procedure, art. 39 para 2.
foreign influences
1.4
23
Foreign Influences
Japan’s law system has experienced significant effects from foreign
institutions three times in its history. Chinese law was introduced in
the seventh and eighth centuries, continental European law in the Meiji
era, (Anglo-)American law in the 1920s and, to a greater extent, after
1945. Even if the literal translation of the foreign law was enacted
the adoption did not usually result in a lasting application in exact
accordance with the original meaning. The foreign law was ‘japanized’.
The old Chinese codes were brought into line with Japanese legal
understanding and its needs by way of amendments (kyaku) and statutory instruments (shiki ). When the main western (especially German)
codes were received the Japanese legislator brought, more or less,
indigenous ideas into the laws; after a period of interpreting the new
law in accordance with the academic view of the scholars in the
country of origin, the jurists were also careful to consider the particular
Japanese attitude and brought any such features to bear in their perception. The strong influence of American law was mitigated after
control by the occupying powers had ended in the early 1950s.
The course from the beginning of the Meiji period can be summarized as follows:
On 6 April 1868 the emperor proclaimed: “Knowledge should be
sought throughout the world and thus the foundation of the Imperial
polity shall be strengthened”.1 This meant the definite end of the
seclusion of Japan which had been instituted by the bakufu about 230
years before. The search for knowledge throughout the world also
concerned the legal systems; this issue developed into a topic of major
importance inasmuch as that the ensuing share in world trade and the
effort to achieve revision of the unequal treaties which, unfavourably
for Japan, the bakufu had concluded with the United States and some
European governments, were top objectives of Japan’s policy.
There was a choice of three ways to create a modern legal system:
(i) to build up a new home-made system independently by themselves—that would take too much time, (ii) to introduce English-style
foreign law—a venture beyond hope because of the vast realm of
case law, (iii) to adopt European codified law—the only practicable
method for an approach to the reform. Consequently, the Japanese
1
The fifth article of the Charter Oath of Five Articles, see chapter ‘Constitutional
Law’ in this volume.
24
generalities
began to study the European codes in earnest. The object of study
was French law. Many jurists had a better command of the French
language than of other western tongues, and a modern code, the Code
Napoléon, existed in France and provided a suitable model.2 The energetic Minister of Justice, Shinpei Etò (in office 1872–1873), ordered
an urgent translation of that code, and instructed the translator simply to replace the words ‘France’ and ‘French’ with ‘Japan’ and
‘Japanese’, and the result, regardless of translation errors, would be
enacted as Japanese law.3 Such a law never appeared, but French
law continued to be the focus of the consideration for a reform.
Japanese officials travelled abroad in order to study the foreign
systems, and foreign experts were invited to advise the authorities
regarding the creation of a new legal structure. Then, foreigners
were employed under contract with the responsible ministry.
On 9 November 1871 the Law School (Meihòryò) was set up within
the Ministry of Justice.4 In August 1872 Henri de Riverol of France
was engaged as a teacher, and in March 1874 the French jurists
Emile Gustave Boissonade de Fontarabie5 and Georges Bousquet were
also employed as experts in French law. Other French teachers and
an American lawyer followed.6 French law was the favourite of the
Ministry of Justice which, like other ministries,7 also consulted separate
foreign experts. There were men from England, the USA and Italy.
Boissonade dominated, and it was he, in his additional capacity as
an adviser to the government, who introduced principles of French
law into the first important new codes, the Penal Code and the Code
of Criminal Instruction, both of 1880. The Penal Code replaced the
previous new penal laws: the Provisional Penal Code of 1868,8 the
2
J.V. Feinerman, The Meiji Reception of Western Law, in H.E. Leser and
T. Isomura (ed.), Wege zum japanischen Recht (Roads to Japanese Law), pp.
95–105, (1992).
3
G. Rahn, Rechtsdenken und Rechtsauffassung in Japan (Legal Thinking and
Legal Opinion in Japan), p. 82, (1990).
4
See chapter ‘Legal Education’ in this volume.
5
Boissonade, in the government’s service from 1873 to 1895, was an adviser
with considerable influence in matters of legislation and held in high esteem.
6
See chapter ‘Legal Education’ in this volume. The dates were taken from the
Shihò enkakushi (A History of Justice), compiled by the Ministry of Justice and edited
by the Jurists’ Association in 1939.
7
Prior to the accomplishment of administrative centralization regional governments sought advice from foreigners, though apparently not on broad legislation but
on military and technical know-how.
8
It was modelled on the Japanese Yòrò-code (8th century), the Chinese codes of
foreign influences
25
Outline of the New Criminal Law of 1871,9 and the Amended Criminal
Regulations of 1873 as well as several other regulations to follow.
Similar to the Penal Code there were earlier legislative endeavours
to regulate criminal action.10 The influence of western ideas first
became noticeable concerning the application of torture which was,
under certain conditions, allowed in order to obtain the confession
of the suspect. Criticisms by Japanese jurists were strongly supported
by Boissonade, and finally the rule of evidence, art. 318 of the
Amended Criminal Regulations of 13 June 1873, was revised: the
original wording “the judgement of all crimes shall be based upon
a deposition” [= written confession] was altered to “the judgement
of all crimes shall be based on proof ”. That meant a change to the
principle of free conviction of the judge, and there was no longer a
reason for torture.
Boissonade’s engagement was not limited to penal law and criminal
procedure. He was asked to give advice to the government or to draw
up drafts concerning laws on the organization of the courts, the civil
code and the code of civil procedure (this draft was incomplete). He
also gave his view about the revision of the unequal treaties. Lecturing
at the Law School of the Ministry of Justice and the Meiji (Special)
Law School,11 Boissonade acquainted the students with the French
doctrine of natural law and civil liberties, his preferred subjects of
research.
While French law was the main source for legislative work of the
Ministry of Justice to modernize the legal system,12 Anglo-American
law became the favourite of Tokyo University. At both the university and in the ministry,13 the aforementioned foreign areas of law
651 and 1397, the Japanese Code of One Hundred Articles (Kujikata osadamegaki
hyakkajò) of 1742, and the draft of a penal code prepared by officials of the Higo
domain in Kyùshù.
9
It was also formed on old Chinese and bakufu law without western influence
worth mentioning.
10
See P. Schmidt, chapter ‘Criminal Procedure’, in this volume. R. Ishii, Meiji
bunkashi, 2. hòseihen (Cultural History of the Meiji Era, vol. 2, Legal System), 1954,
pp. 257–270. Adapted translation by W.J. Chambliss, Japanese Legislation in the
Meiji Era, pp. 320–335, (1958).
11
Meiji (senmon) hòritsu gakkò, privately founded in 1881, predecessor of the Meiji
University (Meiji daigaku), orientated towards French law.
12
Even the Supreme Court (Daishin’in), established in April 1875, was modelled
on the French Cour de Cassation.
13
Among the topics of the judges examination, held by the Ministry of Justice from
1885, were English and French property law, civil procedure, law of contract, law
of evidence, excluding German law. See chapter ‘Legal Education’ in this volume.
26
generalities
and their tradition were not the only matters in the curriculum; the
university also offered lectures on French law. The attachment to a
foreign legal system was the consensus.
In the early years of the 1880s the government began to concentrate on German law, and the trend within the academic sphere
to study German law also became more widespread. The government employed several German jurists as advisers whose duties
included drafting of laws.14 Penal law and the law of criminal procedure were Boissonade’s domain. The two codes governing these
areas were enforced from 1882. However, soon afterwards amendments were contemplated, and the new Penal Code (keihò) of 1907
showed a remarkable influence of German law,15 and in 1922 the
new Code of Criminal Procedure also followed the German system.16
German advisers in the 1880s attended to other fields. The foremost
men were: H. Roesler, a former professor of Rostock university, was
the author of the first Japanese Commercial Code and became involved
in preparatory work for the constitution, and also lectured at the Tokyo
University; P. Mayet, an economist,17 dealt with postal organization,
insurance, and the savings bank system; A. Mosse, a judge, was
occupied in various branches of law, mainly in creating the regulations
for the administrative system of regional self-government; O. Rudorff, a
judge, drafted the Law for the Constitution of the Courts; H. Techow,
a judge, public prosecutor, and government official, was engaged in
the reform of the school system and also drafted the Code of Civil
Procedure; H. Mosthaf, a government official, was adviser to the
Ministry of Foreign Affairs. A few other jurists were hired.
14
Since the engagement of foreign advisers has frequently been described in general and in detail, only a brief summary is given here. A selection of literature
regarding this topic is as follows: H. Jones, Live Machines. Hired Foreigners and
Meiji-Japan (1980). P.-C. Schenck, Der deutsche Anteil an der Gestaltung des
modernen japanischen Rechts- und Verfassungswesens (The German Contribution
to the Modern Japanese Legal and Constitutional System, (1997). J. Murakami,
Einführung in die Grundlagen des japanischen Rechts (Introduction to the Bases
of Japanese Law), (1974). K. Takayanagi; A Century of Innovation: The Development
of Japanese Law, 1868–1961, in A.T. von Mehren (ed.), Law in Japan, (1963).
Z. Kitagawa, Rezeption und Fortbildung des europäischen Zivilrechts in Japan
(Reception and Further Development of European Civil Law in Japan), (1970).
W. Röhl, Fremde Einflüsse im modernen japanischen Recht (Foreign Influences
in Modern Japanese Law), (1959).
15
The German Penal Code had been enacted in 1871.
16
For these two branches of law see Z.U. Tjong/P. Eubel (ed.), Das japanische
Rechtssystem (The Japanese Legal System), p. 210, and J. Herrmann, ibid., p. 257
(1971).
17
He had studied various subjects without taking his degree.
foreign influences
27
With the exception of Prof. Roesler, the above named persons
had been practising jurists in Germany. Their duties in the Japanese
service were also of a practical nature. Besides that, scientists of
jurisprudence from Europe and America gave lessons on western law
at educational establishments. The study of German law gained
increasing attention, especially after the Councillor of State H. Itò
returned from Europe where, commissioned by the tennò, he had
studied existing constitutions, particularly the Prussian constitution,
and had been advised by the famous professors R. von Gneist (Berlin)
and L. von Stein (Vienna) on constitutional law and detailed subjects.
Japanese professors of law studied in Germany, and German jurists
were invited to teach German law in Japan. Some of the above
mentioned practitioners may also be called teachers or instructors of
German law because their advice could sometimes necessitate regular lectures. However, when the official reformers finally decided to
accept German law18 as a guideline it was necessary for the relevant
tenets to be intensively studied. In addition to the research of Japanese
scientists in Germany, German experts were employed by Tokyo
University and the ‘School of the Society for German Science’ (Schule
des Vereins für deutsche Wissenschaften, doitsugaku kyòkai gakkò) to
lecture on Roman and German law. K. Rathgen (public law),
L. Löhnholm (civil law), U. Eggert (finance law), and H. Weipert
(civil law) at Tokyo University; and L. Löhnholm, G. Michaelis,
O. Nippold, and E. and F. Delbrück at the school of the said society,19 were all well known figures in Japan.
The further development of Japanese civil law was strongly influenced
by German legal science, theories, dogmatics, and systematization.
This situation originated from the argument between the adherents
of the French and the English direction over the civil code. Finally,
the first three books of the new Civil Code (minpò) of 1898 were
modelled on the drafts of a German civil code with several items
added or modified based on other foreign regulations.20 Traditional
Japanese views were also taken into consideration. The family law
(book IV) and the law of succession (book V) together maintained
former native notions.
18
Prussian law was at the fore.
The best description of that school has been presented by Schenck (note 14).
Presidents of the school were famous Japanese dignitaries, and the Japanese government made financial contributions.
20
Preparatory research by the Japanese extended over more than thirty foreign
legal systems. Z. Kitagawa (note 14), p. 43.
19
28
generalities
In its entirety the Civil Code showed itself to be an eclectic law
with German law as the prevailing pattern. In order to thoroughly
understand that law academic teachers and professional users studied
German jurisprudence and applied the regulations in accordance with
the established interpretation thereof. This course did not go well
with indigenous Japanese legal thinking which, being concrete and
intuitive, competed with the abstract and discursive direction of the
German ‘Begriffsjurisprudenz’ (conceptional jurisprudence). Inevitably,
the juxtaposition of the two lines of thinking caused inconsistencies
in the judgement on civil cases. There were judges who applied the
law in strict accordance with the conceptional method—in this case the
real situation might be neglected, and the judgement left the parties
in the dark. Other judges based the judgement on the native way
of thinking and gave a pseudo-reason in compliance with the German
style—in this case the judgement would hardly be comprehensible.21
The German influence diminished due to the increasing consideration
of traditional features by Japanese jurists. Criticism of the predominance
of the conceptional jurisprudence began to grow towards the end of
the Meiji era, and after the defeat of Germany in World War I contributed to a change of orientation: turning to ‘living law’ by taking
heed of the social actuality and finding the solution of legal actions
with a view to equity. The theory of free law ( jiyù hòron, the German
Freirechtslehre), the maturing sociology of law (hòshakaigaku), and the
Anglo-American case-method served as sources for the new trend.
The German way of applying the written law, seen as favouring
individualism, was pushed into the background but survived as the
framework of Japanese civil law. It continued to exist as a framework during the nationalist period (1926–1945), which was characterized by the recollection of original Japanese values and by giving
these values priority over all national affairs.
In the first years after the end of the Pacific War the democratic
reforms of the American occupying power also, as a matter of course,
affected the legal system. When the occupation ended in about 1950
the Japanese legislators gently set about examining the laws and harmonizing the new law with traditional aspects of the Japanese way
of thinking. The diverse foreign influences, especially by French,
German, and Anglo-American law, have left very recognizable traces
up to the present time.
21
G. Rahn (note 3), pp. 114–129.
CHAPTER TWO
PUBLIC LAW
Wilhelm Röhl
2.1
Constitutional Law
Even if there is no written constitution the shape of a state can still
be defined. The actual situation of the reign, organization of the
government, its authority, and the rights and duties of its subjects
constitute the essence of a state. In this sense Japan had a constitution before 1868, but the constituting elements changed with the
decline and final dissolution of the bakufu, to such a degree that
hardly anything of the former constitution could be maintained. The
not unanimously welcomed restoration of the Imperial regime was
accompanied by a rapidly growing demand for knowledge of the circumstances in foreign countries and for communication with them.
This demand had risen in the last pre-Meiji years and was still furiously quarreled over at the beginning of the Meiji period.
I
The way things stood demanded for authoritative proclamation of
aims and prospects of the new regime. It was not possible to create
a written constitution without careful preparation, but the political
objectives were determined in a few announcements which can be
judged to be constitutional law.
(i) The last Shogun resigned on 9 November 1867,1 and upon
accepting the resignation, the Emperor announced on 10 November
1
Date of the Western calendar which was introduced in Japan on 1 January
1873. In order to enable the reader to put the events in the well-known, now ubiquitous, system of fixing the dates, the years, months and days of the old lunar calendar have been converted here according to the table in Nihon kindaishi jiten
(Dictionary of Modern Japanese History), ed. by the Kyòto daigaku bungakubu (University
of Kyoto, literary faculty), p. 825 et seqq. (1959).
30
public law
1867, among other matters of more administrative character, that
“Important matters of state and foreign affairs will be submitted to
general discussion”.
(ii) On 3 January 1868 the Imperial Restoration Order (Òsei fukko no
daigòrei ) was read to a gathering of high court nobles and members
of the feudal aristocracy who had been called together at the court.
The order made clear that the ancient mode of government under
the direct supervision of the Emperor was being reestablished, and
declared that specific top offices of the former regime were abolished. The new government was formed of the ‘Three Offices’ (sanshoku): Supreme Head (sôsai ), Senior Councillor ( gijò ), and Junior
Councillor (sanyo). An imperial prince was appointed Supreme Head.
The members of the second office were two imperial princes, three
court nobles, and five feudal lords (daimyò)2 named in the Order.3
The junior councillors were five court nobles and three samurai from
each of the five loyal clans named by their lords. The number of
the junior councillors rose to over one hundred by 11 June 1868,
the date of the dissolution of the Three Offices.4
First steps towards freedom of expression and the right to petition can be seen from paragraph 5 of the Imperial Restoration Order:
For the correction of existing abuses the path to free expression is
open; anyone, therefore, regardless of status, who has opinions on the
matter should present them without hesitation. Furthermore, as the
appointment of able persons is of the utmost urgency, any person who
fits this category should be immediately recommended.
and a clause of paragraph 6:
His Majesty’s mind is ill at ease on this occasion of momentous reform;
hence if any resourceful and farsighted remedial measures exist, anyone, whosoever he may be, should submit them.
Again, the Order alluded to a public discussion, and, in this connection said: “without regard for the distinctions separating high
court nobles, the samurai and court officials”. This version indicated
2
These were the lords of the clans which had proved loyal to the Emperor
before the restoration.
3
During the very short existence of the Three-Offices-system twenty other senior
councillors were appointed, (Dictionary of Modern Japanese History (note 1) at 673.
Some of them were only in office for a matter of days, and one gains the impression that loyalists of outstanding merit should be rewarded no matter how perfunctorily.
4
Cf. note 3. The Three Offices were subdivided into seven executive sections
(ka) on 10 February 1868; the sections were renamed kyoku two weeks later.
constitutional law
31
that “public” meant the leading persons of the court circles and the
clans, and not the common people.
(iii) On 6 April 1868 the Charter Oath of Five Articles (Gokajò no
goseimon) was proclaimed in Kyoto. It read as follows:
1. An assembly widely convoked shall be established, and all matters
of state shall be decided by public discussion.
2. All classes high and low shall unite in vigorously promoting the
economy and welfare of the nation.
3. All civil and military officials and the common people as well shall
be allowed to fulfill their aspirations so that there may be no discontent among them.
4. Base customs of former times shall be abandoned, and all actions
shall conform to the principles of universal justice.
5. Knowledge shall be sought throughout the world and thus shall
be strengthened the foundation of the Imperial polity.5
The wording of art. 1 indicated that members of the assembly should
not only include feudal lords or court nobles and officials.
II
Since the Charter Oath was merely a declaration of intent, it had
to be put into concrete terms. For this reason the ‘Document on
the Government System’ (Seitaisho) was proclaimed on 17 June 1868;
it is called the first written constitution of Japan. The Document—
as it is usually described in literature—consisted of 11 articles, the
first of which restated the Charter Oath of Five Articles as the starting point for the following provisions:6
(ii) All power and authority in the empire shall be vested in a Council
of State, and thus the grievances of divided government shall be
done away with. The power and authority of the Council of
5
The preceding deliberations have been described by R. Ishii, Meiji bunkashi, 2,
Hòseihen (Cultural History of the Meiji Era, vol. 2: Legal System), 1954, p. 105 et
seqq., translated by W.J. Chambliss, Japanese Legislation in the Meiji Era, 1958,
p. 139 et seqq. The translation of this and the foregoing proclamations are taken
from Chambliss’ work.
6
Translation taken from Wm.T. de Bary (ed.), Sources of Japanese Tradition,
1959, p. 644 et seq. Japanese text in T. Miyazawa, Nihonkoku kenpò (Constitution
of Japan), additional volume, 1958, p. 1 et seq. See also note 19 in chapter
‘Administrative Law’.
32
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
public law
State shall be threefold, legislative, executive, and judicial. Thus
the imbalance of authority among the different branches of the
government shall be avoided.
The legislative organ shall not be permitted to perform executive
functions, nor shall the executive organ be permitted to perform legislative functions. However, on extraordinary occasions
the legislative organ may still perform such functions as tours
of inspection of cities and the conduct of foreign affairs.
Attainment of offices of the first rank shall be limited to princes
of the blood, court nobles, and territorial lords, and shall be by
virtue of [the sovereign’s] intimate trust in the great ministers
of state. A law governing ministers summoned from the provinces
(chòshi ) shall be adopted, clan officials of whatever status may
attain offices of the second rank on the basis of worth and talent.
Each great city, clan, and imperial prefecture shall furnish qualified men to be members of the assembly. A deliberative body
shall be instituted so that the views of the people may be discussed openly.
A system of official ranks shall be instituted so that each [official]
may know the importance of his office and not dare to hold
it in contempt.
Princes of the blood, court nobles, and territorial lords shall be
accompanied by [no more than] two two-sworded men and one
commoner, so that the appearance of pomp and grandeur may
be done away with and the evils of class barriers may be avoided.
Officers shall not discuss the affairs of the government in their
own houses with unofficial persons. If any persons desire interviews with them for the purpose of giving expression to their
own opinions, they shall be sent to the office of the appropriate department and the matter shall be discussed openly.
All officials shall be changed after four years’ service. They shall
be selected by means of public balloting. However, at the first
expiration of terms hereafter, half of the officials shall retain
office for two additional years, after which their terms shall
expire, so that [the government] may be caused to continue
without interruption. Those whose relief is undesirable because
they enjoy the approval of the people may be retained for an
additional period of years.
A system shall be established for levying taxes on territorial
lords, farmers, artisans, and merchants, so that the government
constitutional law
33
revenue may be supplemented, military installations strengthened,
and public security maintained. For this purpose, even persons
with rank or office shall have taxes levied upon them equivalent to one thirtieth of their income or salaries.
(xi) Each large city, clan, and imperial prefecture shall promulgate
regulations, and these shall comply with the Charter Oath. The
laws peculiar to one locality shall not be generalized to apply
to other localities. There shall be no private conferral of titles
or rank, no private coinage, no private employment of foreigners, and no conclusion of alliances with neighbouring clans or
with foreign countries, lest inferior authorities be confounded
with superior and the government be thrown into confusion.
The authors of the Document were Takachika Fukuoka and Taneomi
Soejima, samurai of clans which had supported the cause of the royalists and advocated the abolition of the bakufu. Fukuoka (from Tosa)
had already had a hand in drafting the Charter Oath of Five Articles,
and Soejima (from Saga) had been a student under the Dutch Guido
Herman Fridolin Verbeck who, as a teacher at Nagasaki since 1860,
had imported western science. So, two men were at work who were
acquainted with the aim of the Charter Oath on the one hand and
western conceptions of constitutional principles on the other. The
influence of western ideas appeared in arts. 2, 3, 5, and 9: representative government, separation of powers, selection of officials by
means of public balloting and limitation of their term of office. Art.
11 upheld a certain regional autonomy, as in former times, but it is
clear that the Document did not stand in the way of the establishment of a centralized state. The centralized state was created when
the daimyò transferred their domains and the reign over the inhabitants to the Emperor in July 1869. Several organs for deliberation
on legislative measures were instituted:
(i) Gijisho (deliberative body). Takachika (or Tòji) Fukuoka, a samurai of the Tosa domain, was appointed major-domo (sansei ) of his
lord’s household in 1867 and, at the lord’s request, sent to Kyoto
early in November of the same year, together with the senior inspector (daikansatsu) Shòzaburò Gotò, in order to pay a visit to the
Shogun Keiki Tokugawa, to report on the trend of the times that
the transfer of the power to the Emperor was inevitable, and to urge
him to decide accordingly. After the restoration Fukuoka became a
junior councillor. Together with three other liegemen of Toyoshige
public law
34
Yamanouchi, daimyò of Tosa, Fukuoka had already in September/
October 1867 documented the views of their lord:7
1. All authority to deliberate on the administration of the realm
should be vested in the Court and all institutions and laws for
our land should, without exception, emanate from a deliberative
assembly (giseisho) in Kyoto.
2. The assembly should be divided into an upper and lower branch,
and the legislators should be honest and good men, with their
selection ranging from high ranking court nobles down to rear
vassals and commoners.
3. et seqq. omitted here.
So, Fukuoka was familiar with the idea of an assembly as it was
supported by the loyalist Tosa clan where it had been conceived by
Ryòma (or Ryùma) Sakamoto in July 1867.8 When on 9 November
1867 the last shògun had resigned the Court, in an effort to dispose
of problems connected with the Court’s assumption of power, the Court
convoked a conference to be attended by the lords of the domains,
but the daimyò were reluctant and did not respond to the summons.
Fukuoka, adhering to the position of his clan, pursued the concept
of a general assembly and submitted a plan for a deliberative body
( gijisho) of two chambers: an upper ( jòin) and a lower chamber (ka’in).
Members of the upper chamber would be the Emperor, the imperial family, the court nobles and the feudal lords; the lower chamber would consist of the imperial officials,9 the domain representatives
(kòshi), and other capable persons from town or country. Maybe such
a body existed in the period of transition from 1867 to 1868;10 reliable traces are lacking.
7
Ishii/Chambliss (note 5), pp. 54 and 709 respectively.
Senchù hassaku (Eight points—aboard) as the plan is called because Sakamoto
wrote his ideas down while sailing from Nagasaki to Kyoto.—Other persons, especially from the domains of Satsuma, Chòshù, and Echizen, were also pleading the
cause of public assemblies. Supporters of that idea emerged even in the bakufu. The
most prominent man of those was the scientist and politician Amane Nishi. For
details see Ishii/Chambliss (note 5) at 102 and 135 et seqq. respectively.
9
Chòshi: samurai under a daimyò, called upon by the government to perform certain duties.
10
Ishii/Chambliss (note 5) at 105/140. The Daijiten (Heibonsha), vol. 7 (1953)
p. 445, headword “gijisho”, says: “existed from bakufu to the first year of Meiji. Also
the Nihon rekishi daijiten (Great Dictionary of Japanese History), edited by Takado
Kawade, vol. 7, p. 238 (1957), headword “kòshi ” by Tsunekichi Yoshida holds the
gijisho to have been real.
8
constitutional law
35
(ii) One of the seven administrative sections established within the
Three Offices system on 10 February 1868 was the Legal Section
(seidojimuka or seidoryò). Its field of work was—among others—legislation.
Two weeks later the seven sections were replaced by the eight
secretariats, and the Legal Section became the Legal Secretariat
(seidojimukyoku).
(iii) With the establishment of the Great Council of State (dajòkan)11
on 11 June 1868 the separation of powers was formally realized. In
the first type of the dajòkan system12 the Law-Making Office (giseikan)
was the legislative component consisting of two subdivisions: the
upper department ( jòkyoku) and the lower department (kakyoku)
corresponding to the structure introduced by Fukuoka. Members of
the upper department were senior councillors (princes of the Imperial
family, court nobles, feudal lords) as well as junior councillors (court
nobles, feudal lords and their chief retainers, gentry, and common
people), and secretaries (shikan) who had to draft documents, deal
with routine work, submit extracts, and edit the official gazette of
the Great Council of State (dajòkan nisshi ). The upper department
organized the government system, enacted the laws; decided about
important affairs of state, selection of high officials, rewards and penalties, treaties, war or peace.—The lower department, the members
of which were two directors (high-ranking administrative officials had
additionally to perform this business) and domain representatives,
was authorized on request of the upper department to deliberate
about tax, the postal service, coinage, weights and measures, treaties,
commerce, colonization, declaration of war, conclusion of peace, military affairs, disputes between domains, etc. The lower department
was renamed Kòshi taisakusho, meaning that the duty of the domain
representatives was limited to answers to questions from above, i.e.
the Emperor. As an organ for public discussion the lower department did not have any effect.
However, since the separation of powers under the seitaisho was
not carried out in a modern sense the said organs became gradually subordinate to the executive. On 3 November 1868 the giseikan
11
This institution had been an organ of the Imperial government since very old
times. ‘Establishment’ means that the dajòkan now regained political power after
about 700 years under the rule of the warrior class.
12
For the three types of the dajòkan see chapter ‘Notes on the Staff of the Ministry
of Justice’.
36
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was dissolved, reinstated for a short period from 23 May to 22 June
1869, and then finally abolished.
(iv) Because of the growing predominant influence of the executive it proved hard to implement the seitaisho and find a separate
legislative authority. On 2 November 1868 a committee for investigating the form of legislation was set up. The members were royalists and experts of European science. The result of their discussions
was the ‘Draft of Regulations for the Kògisho’ (kògisho hòsoku an; kògisho =
place for public discussion). On 24 January 1869 the Executive Office
( gyòseikan) sent out the draft and asked for a reply if there were any
apparently doubtful points; if so, such articles should be written down
and presented to a conference in the coming spring where the draft
could be finally deliberated and enacted. The historian Jintarò Fujii13
points to the fact, that the regulations applied not only to the members of the kògisho but would also fall under the category of the rules
for regional assemblies. In April 1869 the Kògisho hòsoku were completed,14 and the assembly opened its first session on 18 April 1869.
While in the foregoing assembly the great domains (400.000 koku15
or more) were represented by three members, the medium-sized
domains (100.000–399.000 koku) by two, and the small ones
(10.000–99.000 koku) by one member, an order of 22 January 1869
had reduced the membership to one representative per domain. At
that time there were more than 270 domains.
(v) As early as 17 August 1869 the kògisho was renamed shùgiin.16
Simultaneously a short-lived upper house ( jòkyoku kaigi ) was done away
with, and for the time being there was no successor. These changes
were connected with the daimyò ’s surrender of the domains to the
Emperor, the consequence of which was that the representation of
13
One of the authors who explained early constitutional texts in Meiji bunka zenshù (Complete Collection About Meiji Culture), vol. 1: Kenseihen (Constitutionalism),
ed. Meiji bunka kenkyùkai (Society for the Study of Meiji Culture), section ‘Explanation),
p. 2 (1955).
14
R. Ishii (note 5) at 105 mentions that the retired Shogun, after having been
defeated in a subsequent battle with government troops near Kyoto and returning
to Edo in January 1868, created a kògisho which was opened on 3 March. No activities of that assembly are known, and it ceased to exist when imperial forces entered
the Kanto plain a few weeks afterwards. W. Chambliss (note 5) at 189.
15
An old rice measure: 1 koku = about 180 litres, approximately the yearly consumption of one person. The harvest was estimated in koku for tax purposes.
16
Literally ‘house of the deliberative assembly’, not to be confused with the shùgiin
(House of Representatives under the Meiji Constitution of 1889) which is written
differently and literally means ‘house of public discussion’.
constitutional law
37
the domains in a central deliberative organ became unnecessary.
Nevertheless, the group of members was not essentially changed.
Compared with the kògisho the rights of the shùgiin were reduced. The
kògisho members were allowed to present bills. In the shùgiin the proposals had to be introduced, as a rule, by the Council of State (cf.
art. 6 of the Regulations for the Kògisho and art. 2 of the Regulations
for the Shùgiin), and the shùgiin was merely an advisory body.
The proceedings of the kògisho and the shùgiin were recorded in
diaries (nisshi ):
– Kògisho nisshi17 covers the period from 18 April 1869 (opening
ceremony) to 15 July 1869 (last meeting) in 19 (actually 27, including several subdivisions) volumes. The first volume contains introductory documents: seating plan, imperial address to the opening
ceremony, sectional groups (one of them had to deal with ‘criminal
law’ which was the main topic of the legal system), instructions for
the members, the rules for the kògisho, petition box and notice board.
The bills to be debated and the comments of the members are collected in the other volumes. Added to the text of the Kògisho nisshi
was the Kògisho nisshi zenpen which literally means ‘The first part of the
Kògisho nisshi ’ (two volumes). This title of the document refers to the
predecessor of the kògisho, i.e. the kòshi taisakusho, the matters relating
to which were recorded there from March 1868 to March 1869.
– Shùgiin nisshi18 is the record of the proceedings of the shùgiin, the
former kògisho, in 1869 and 1870, beginning with a note of renaming the kògisho on 17 August 1869 and ending on 9 December 1870.
During this period two sessions were opened: the first lasted from 7
October 1869 until 3 January 1870, the second from 26 June 1870
until 2 October 1870.
In the course of the institution of the first bodies for legislative
work mentioned above art. IX of the Seitaisho was increasingly implemented. In the beginning there was no public election of the members of the giseikan’s upper and lower house. On 22 and 23 June
1869 officials of the third and higher grades19 assembled in order to
17
Japanese text in Meiji bunka zenshù, vol. 1 (note 13), section ‘Wording’, pp. 1–134.
Explanation by J. Fujii (note 13).
18
Japanese text in Meiji bunka zenshù (note 13), section ‘Wording’, pp. 166–219.
Explanation by J. Fujii (note 13), pp. 7–9, including the text of the Regulations for
the Shùgiin (Shùgiin kisoku). Ishii (note 5), pp. 113–114; Chambliss (note 5), p. 151.
19
See section ‘Civil Service’ in chapter ‘Administrative Law’.
38
public law
elect the chief functionaries of the state, among them the senior and
junior councillors, some of whom held positions in the legislative or
advisory bodies.20 There were elections by ballot also on a smaller
scale in certain groups.21
(vi) In the summer of 1871 the domains were replaced by prefectures (ken), and the reorganization of the government—establishment of type III of the dajòkan system—followed shortly afterwards.
Although the shùgiin as the body of domain representatives lost the
reason for its existence it was not immediately discontinued, since it
was the institution that dealt with petitions.22
The newly organized government (dajòkan) was divided into three
chambers: Central Chamber (sei’in), Left Chamber (sa’in), Right
Chamber (u’in). Responsible for legislation was the Left Chamber23
which consisted of a president and several councillors (sangi ). These
legislators were not ‘publicly’ elected but civil servants appointed by
the government. They merely discussed legislation and did not make
laws. Important persons from the former domains were among the
members and broadened the view on issues of nationwide concern.
The Left Chamber had a higher position than the shùgiin which was
finally dissolved in June 1873. At the same time the duties of the
Left Chamber were prescribed as the “compilation of the assembly
regulations, the constitution, the civil code and the drafting of legislation by order of the government” which meant that the Left
Chamber no longer dealt with everyday legislation. However, before
the Left Chamber could produce substantial results it was disestablished on 14 April 1875 together with the Right Chamber.
(vii) The successor of the Left Chamber enjoyed a lifetime of fifteen
20
E.g. the sanyo Shigetomi Òhara became president of the shùgiin. Meiji bunka
zenshù (note 13) at 166.
21
For examples see Ishii/Chambliss (note 5), p. 114 and 149–150. The Shùgiin
nisshi reports on elections of secretaries and other office bearers, Meiji bunka zenshù
(note 13), at 167, 184.
22
The Meiji government had fostered a means of communicating one’s opinions
to the authorities ( genro dòkai ), installed a complaints box in Kyoto and a petition
office in Tokyo in the spring of 1869: taishòkyoku, literally: office for preparing drafts
of imperial rescripts. After four months the office was renamed taishokuin; one month
later the shùgiin took over the business under a government order of 20 September
1869 (Shùgiin nisshi—note 18—p. 166). In this respect the shùgiin was a kind of petition committee with an advisory function.
23
Ishii/Chambliss (note 5) at 114/152.—The Right Chamber was an assembly
of the ministers and vice-ministers responsible for the communication between and
cooperation of the ministries.—The Central Chamber was a predecessor of the cabinet which was established in 1885.
constitutional law
39
years: 14 April 1875–22 October 1890. The new legislative organ,
called the “Chamber of Elder Statesmen” ( genròin), was created by
the participants of the Osaka conference in January/February 1875.
The government had got into difficulties. The councillors had quarrelled about the Korean issue and five of the nine councillors resigned
in October 1873. Takayoshi Kido followed them on 13 May 1874
because he opposed the policy concerning Taiwan. The remaining
group was enlarged by three newly appointed councillors of which
those of Satsuma and Chòshù origin enjoyed the strongest and most
powerful position with Toshimichi Òkubo as the central figure. At
about the same time public demand for a parliament elected by the
people became more intense. The public discussion of all matters of
state had been modestly designed in the early proclamations of the new
regime (see above) but not sufficiently put into effect. On 18 January
1874 top politicians being in opposition to the government submitted
a written petition for the establishment of a parliamend elected by the
people (minsen giin setsuritsu kenpakusho) to the Left Chamber. It was this
action that incited to the movement for democratic rights ( jiyù minken
undò). The petition was signed by the former councillors Itagaki, Gotò,
Etò, Soejima as the leaders and joined by intellectuals of samurai origin. In order to extend the freedom and rights of the people the petitioners pressed for a publicly elected parliament, as a result of which
the prosperity of the Japanese empire was expected. In connection
with the demand for democracy or at least the people’s participation
in a law-giving organ the first political parties appeared. Initially, on
12 January 1874 the said opposing councillors founded the Patriotic
Party (Aikoku kòtò) which declared that the people had rights and freedom as a gift of heaven. The party vanished when, a few weeks later,
Etò organized a revolt in Kyùshù (Saga no ran) and was prosecuted.
Taisuke Itagaki established the Inspiring Society (Risshisha) in Tosa on
10 April 1874, which spoke up for natural human rights, consideration of public opinion in the spirit of autonomy and independence and
rights of the citizens. The purpose of the new Patriotic Society (Aikokusha),
founded on 22 February 1875, was to disseminate the ideas of the
Risshisha, which operated in Tosa over the whole of the country. The
Saga no ran (see above) was a clear indication of the fact that a noticeable part of the samurai were discontented about the new political conditions. Other revolts of these circles happened in 1876 and 1877.
The government had at first pursued an antidemocratic policy, but
in view of the intensified demands for a generally elected parliament
it gave the impression that it would make concessions, and promulgated the Basic Law and Regulations for a Diet (Giin kenpò narabi ni
kisoku) as an imperial edict on 2 May 1874.24 The contents were that
24
Text in Meiji bunka zenshò (note 18) at 247–252.
40
public law
an assembly of the people’s representatives would be achieved step by
step. First, a standing conference of the regional head officials (chihòkan
kaigi ) was to be held who, representing the people, should discuss the
public affairs. But the emperor had the right to select the president
of the conference and to confirm laws resolved by that body. The
right to dissolve the conference rested with the president alone. Actually,
the conference was an organ which answered questions introduced by
the government. Under art. 1 of the Basic Law the conference was to
meet once a year.
IV
(i) This was the way things stood when on 10 January 1875 prominent politicians (Kaoru Inoue, Hirobumi Itò, Taisuke Itagaki,
Takayoshi Kido, and Toshimichi Òkubo) assembled in Osaka in
order to strengthen the Meiji government by realizing the principles
of modern constitutionalism step by step, the outlines of which had
been laid down in the early proclamations. The former domains of
Satsuma, Chòshù, and Tosa formed an alliance and reached an
agreement to support the government. The results were25
– Kido and Itagaki re-entered the government as councillors,
– the separation of the three powers: legislation, executive, judicature, was proclaimed the characteristic of the state,
– a senate ( genròin) and the standing conference of the regional head
officials were preparatory stages of the coming parliament and constitutional system,
– the ‘cabinet’ and the single ministries were to be separated, and
the ‘cabinet’ consisting of elder statesmen, namely the Prime
Minister, the Ministers of the Left and the Right, and the councillors, had to render assistance and support,
– the executive was to be administered by persons of one position
lower,
– a Supreme Court (taishin’in) was established as the highest organ
of the judicature.
Although different fundamental opinions could not be completely
united the participants agreed on a gradual advance towards constitutionalism as the national policy. A corresponding imperial edict
25
Nihon rekishi daijiten (note 10), vol. 3, p. 131.
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41
was issued on 14 April 1875. However, the Osaka program was not
implemented in every respect, in particular the road to constitutionalism seemed to become a long one, for in the government conservative circles gained influence. Itagaki could not achieve the plan
to separate the ‘cabinet’ and the ministries and realized that the
Senate showed itself as a body merely to answer questions and not
to fulfill legislative duties. So he resigned from the post of councillor after a few months. The solidarity of the progressive politicians
collapsed, and absolutism continued.
(ii) The Standing Conference of the Regional Head Officials (below
abbreviated ‘StC’) was convoked for September 1874 but postponed
because of political excitement due to the Taiwan incident (seitai no
eki ).26 The StC held only three sessions. The first session was opened
on 20 June 1875 and ended on 17 July 1875.27 The members gave
their opinion on subjects presented by the Emperor (i.e. the government) in the form of questions or drafts. The session dealt with
(1) local police, (2) roads and bridges, (3) repair of river ports and
roads, (4) dikes, (5) assemblies of the regional population, prefectural
assemblies, ward assemblies.
As an illustration a broad outline of item (1) of the agenda will
be attempted:
Question about local police:
1. Setting up of a police force for the protection of the people must
be strictly pursued. In the effort to take appropriate action additional costs must not be spared. In the case of additional costs: should
they be borne partly by the government and partly by the people
in the form of a district tax? How should the division be regulated?
2. When the contributions to the expenses have been settled rules
for the stationing of officials in government service and policemen must
be determined. Should it be regulated according to the areas of land
or in proportion to the number of households? How can it be done?
3. When the rules for stationing the policemen have been determined the levy of policemen must be regulated. How can it be done?
26
Japan had dispatched soldiers to Taiwan where shipwrecked seamen from the
Ryùkyù islands had been murdered. The Japanese expedition was relevant to the
dispute as to whether the islands were Japanese or Chinese territory.
27
The proceedings of this session have been published in Meiji bunka zenshù (note
18) at 255–339: Chihòkan kaigi nisshi (Diary of the StC).
42
public law
The following answer to be discussed had been drafted in advance:28
[abridged]
1. Two thirds of the costs to be borne by the central government
and one third by means of district tax would be appropriate.
2. The number of policemen below public officials should be fixed
according to local circumstances, but must be roughly settled. Except
the regions of Kyoto, Osaka, and the three harbours in Kanagawa,
Hyògo, and Nagasaki, an area of about 100,000 inhabitants should
be one police district with a detached office, one official, and fifty
policemen, seven police stations, eight branch stations, and a number of police boxes.
3. The qualification for policemen should be:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
25 to 45 years of age,
Robustness, height at least 5 shaku (ca. 152 cm),
Ability to read everyday texts,
No hindrance to continuous service for three years,
No syphilis or chronic disease,
Gentle and persevering character, free of alcoholism and similar addiction,
(vii) At least two good references,
(viii) Previously no infamous offence or receiving stolen goods, and
the like.
After discussion the StC made the following statement:
1. Of the total costs of the police force the government shall bear
two thirds. One third shall be contributed out of district taxes. The
government’s share shall be allotted to each region in proportion to
the population. The district’s share shall be appropriately dealt with
depending on the poverty or wealth of the people in the district.
2. In all regions, except the Tokyo, Kyoto, and Osaka prefectures
and the three harbours (Kanagawa, Hyògo, Nagasaki), for an area of
about 100,000 inhabitants there shall be one police district with a
detached office, aiming to station there two subordinate officials and
28
Under art. 9 of the Basic Law for a Diet the government could, by means of
an Imperial message, enclose a draft of a likely answer if it was expected that the
StC would be short of time to formulate the answer by itself. The draft became
the subject of the discussion leading to assent, or disapproval, or amendment. In
any case the final decision rested with the Emperor.
constitutional law
43
fifty policemen, but more or less inhabitants in a ward according to
the local circumstances will make no difference. Also the seven police
stations and eight branch stations shall in principle be established,
but more or less should, according to the situation of the terrain,
be made as appropriate. Two officials per 100,000 inhabitants shall
be assigned to the main office plus one extra for every additional
100,000. If in the latter case the personnel budget is not exceeded
it may be proper to take on an external officer of equal rank chargeable to the internal budget.
3. [Provisions concerning the levy of policemen were formulated
in an appendix to the statement which contained also drafts of laws
for stationing police forces and for the allotment of governmental
means. The draft of a Law for the Levy of Policemen read as follows:]
‘Policemen must be men of good conduct and strong constitution,
otherwise they may not be appointed to office. Hence, the items of
levy are the following:
(i)
(ii)
(iii)
(iv)
(v)
Age: 20 to 45 years.
Ability to read everyday texts,
No hindrance to continuous service for two years,
No malignant illness,29
Gentle and persevering character, free of alcoholism and similar addiction,
(vi) Reference(s),
(vii) Previously no infamous offence, or receiving stolen goods, and
the like.
These are mere general rules; adoption or rejection or a compromise is left to the discretion of the regional official.30
The second session of the StC was opened on 10 April 1878. The
members discussed the ‘Three New Laws’ which for the first time
set up a standard regional organization: (1) Law for the Organization
of Districts, Wards, Towns, and Villages (Gun-ku-chò-son hensei hò), (2)
Rules for the Prefectural Assembly (Fukenkai kisoku), (3) Rules for
District Taxes (Chihòzei kisoku). Finally, from February 1880, the
agenda of the third session contained amendments to the ‘Three
New Laws’, the Law for the Assemblies of the Wards, Towns, and
29
30
General meaning, especially leprosy.
Meiji bunka zenshù (note 18), at 261–262, 287–288.
44
public law
Villages (Ku-chò-son kai hò), and the Law for a Famine Relief Fund
(Bikò chochiku hò).
(iii) Meanwhile, the Senate ( genròin) had been founded in accordance
with the imperial edict of 14 April 1875 and opened on 5 July 1875.
The StC was a test for a house of representatives (shùgiin) of a later
time;31 the Senate was the forerunner of the House of Peers (kizokuin).
This body was headed by a president and a vice-president, the other
members were a secretary32 and a number of councillors ( gikan)—
they were not elected by the people but selected and appointed by
the tennò. The councillors came from the peerage, high officials (who
had the right to report directly to the throne), persons of distinguished service to the state, persons erudite in politics or law.33 On
25 November 1875 they created the Regulations Governing the
Organization of the Senate, art. 1 of which defined the Senate as a
body of legislative officials whose duties were to deliberate on new
legislation, to revise existing laws, and to receive petitions. However,
the legislative power of the Senate was limited under other articles,
and in reality the body had no legislative competence but was a
mere advisory organ which gave its opinion about bills and inquired
into law in operation. An amendment of the regulations in December
1875 giving the Senate decision-making power in some cases did not
alter the fact that the government had the dominant position.34
(iv) When the gradual advance towards constitutionalism had been
announced35 the discussion about a constitution livened up. Previously
there had been several proposals as to the principles of the constitution, mainly the separation of the three powers and the creation
of a popularly elected assembly, initial stages of which had been
officially laid down in the Charter Oath of Five Articles and the
Document on the Government System. Now, on 7 September 1876,
the President of the Senate received an Imperial rescript: “We intend
31
J. Fujii (note 13), at 13.
President, vice-president and secretary were elected by the members from
among themselves.
33
Noboru Umetani, Genròin (Senate), in Nihon kindaishi jiten (note 1), at 161.
34
Ishii/Chambliss (note 5), at 116/154.
35
Imperial edict of 14 April 1875, see above.—For the development of constitutional ideas see Ishii/Chambliss (note 5), at 116 et seqq./155 et seqq. J. Andò,
Die Entstehung der Meiji-Verfassung: zur Rolle des deutschen Konstitutionalismus
im modernen japanischen Staatswesen (The Origin of the Meiji Constitution: On
the Role of the German Constitutionalism in the Modern Japanese Polity), München
2000, 35–47.
32
constitutional law
45
to ordain a constitution based on the fundamental character of Our
nation well-grounded from the foundation of the state as well as
broadly considering the laws of foreign countries. Ye are required
to draft a preliminary version properly taking the aforesaid into
account and report on it to Us. Then We will make a decision.”36
In June 1878 the ‘Draft Constitution of Japan’ (Nihon kokken’an)
was completed37 and presented to the President of the Senate.
Thereafter more than three years went by in which particulars were
debated, changes proposed, opinions obtained, principles disputed,
suggestions offered—all this among politicians or parties excluding
the general public. Anyhow, the Movement for Democratic Rights
turned its attention to the course of action and agitated for a national
assembly in such a way that the government felt compelled to enact
Regulations for Public Meetings (Shùkai jòrei), as a measure to suppress political discussion: chiefly forbidding political speeches before
the public. Living underground, the various groups in each locality
began to conduct theoretical studies on the subject of a national
assembly and a constitution, and privately drafted constitutions
appeared.38 All in all, the government came under pressure.
V
In this situation the Emperor on 12 October 1881 announced the
establishment of a national assembly in 1890, and, in view of demands
for speed, warned the public not to become agitated. The Emperor,
wanting advice as to his sovereign power and the preparations being
made for the constitutional form of government, was apprised by
the ministers that constitutional government and the respective spheres
of authority of the monarch and the assemblies were different in
each country, and hence it would be necessary for Japan to use
discretion in selecting the form of government that would be
suitable to the national polity and the customs of the people.39
36
R. Ishii (note 5), at 122.
Four members of the Senate and three secretaries had been at work.
38
In the vast majority they were based on the concept of social contract (Rousseau)
in contrast to the idea of a constitution bestowed upon the people by the emperor.
39
Ishii/Chambliss (note 5) at 295/366. For the preparations of the enactment
of the constitution see the comprehensive description loc. cit. at 295–315/366–381.
There is a mass of literature on the subject, recently J. Andò (note 35).
37
46
public law
Since the Emperor had already asked for consideration of foreign law
in his order to the President of the Senate of September 1876 (see
above), it was natural that now relevant enquiries had to be intensified
and updated. To this end, the councillor Hirobumi Itò, who was
chosen to be in charge of drafting the constitution, received an order
from the Emperor to go to Europe for constitutional research. To
him was given a list of thirty-one items as the topics of study. These
items provide a view of the problems to be solved:
1. Origin of the constitutions of the European constitutional monarchies, their history, actual state, advantages and shortcomings.
2. Special rights of the imperial house.
3. Property of the imperial house and family.
4. Organization of the cabinet; authority of the legislature, executive, justice, and diplomacy.
5. Law of the cabinet’s responsibility.
6. Relations between the cabinet ministers and the upper and lower
houses of the diet.
7. Procedure of the cabinet’s dealing with its business.
8. Organization of the upper and the lower houses.
9. Privileges in the peerage system.
10. Competence of the upper and lower houses, and procedure of
dealing with their business.
11. Special rights of the imperial house pertaining to the upper and
lower houses.
12. Opening, closing, dissolving, and adjourning the upper and the
lower house.
13. Free political discussion in both houses.
14. Arguments about special rights of both houses.
15. Standing orders.
16. Treatment of members of both houses on the part of the imperial household.
17. Relations between both houses.
18. Who presents a bill to the diet? Matters concerning bills.
19. Process in both houses to pass the budget or examine the account.
20. Judicial power of both houses.
21. Petitions or administrative jurisdiction.
22. Eligibility and election of the members of both houses.
23. Delimitation of law and administrative regulations.
24. Organizing power of each ministry.
constitutional law
25.
26.
27.
28.
29.
30.
31.
47
Relations between each ministry and both houses of the diet.
Relations between each ministry and regional officials.
Conduct, promotion, or degradation of judicial officials.
Relations between judicial officials and both houses of the diet.
Responsibility and conduct of the public officials.
Privilege of provision for old age in favour of the public officials.
Local government system.
The list shows that the Japanese were well acquainted with the crucial points of a constitutional charter.
Itò and his entourage departed on 14 March 1882 and returned
on 4 August 1883. They stayed in Berlin from 16 May 1882 to 19
February 1883 with some breaks in between, five months in total.
They had many conversations with Rudolf von Gneist, a famous
professor of constitutional law, and attended lectures arranged for
them and given by a Berlin judge, Albert Mosse, on administrative
law. In Vienna they took counsel from Lorenz von Stein about
political and social science as well as theory of administration. Von
Stein, likewise renowned, gave his advice in conversations and quite
a number of private lessons.40 Before leaving Europe Itò visited
England and Russia apparently without engaging in profound constitutional studies; after all, Japan had already decided in favour of
the German/Prussian type of constitutionalism.
Having returned to Japan Itò was busy with some changes in
government which were to serve the preparation of the constitution.
During his stay in Europe enquiries into the traditional order of the
imperial household had already begun, and on 17 March 1884 the
Office for Investigation of the Institutions (seido torishirabe kyoku) was
set up in the Ministry of the Imperial Household, the duty of which
was to deal with “the enactment, amendment, or repeal of laws and
ordinances which will greatly bear upon the constitutional system”.41
Itò was appointed director and four days later Minister of the
Imperial Household in addition to his task as a junior councillor to
the government. He gave the peerage a system of ranks under the
Ordinance Concerning Peers (kazokurei ) of July 1884, with the aim of
providing for a peerage majority in the upper house of the coming
40
For details see J. Andò (note 35), at 59–75.
R. Ishii (note 5) at 300. W. Chambliss (note 5) at 370 calls the said office
“Legislation Research Bureau”.
41
48
public law
national assembly or diet, because he foresaw the necessity for a
means to counteract decisions of the lower house.
Itò’s next step was the reorganization of the government. The
Council of State system (dajòkan) from days of old stood in the way
of modernizing the central authorities, owing to the appointment of
the three top ministers (the Prime Minister, the Ministers of the Left
and of the Right) from among aristocratic families. Moreover, there
were unsatisfactory particulars as to the direct imperial rule and the
swift and sufficient management of state affairs. Most of the councillors to the dajòkan who actually directed the politics came from
the Chòshù- and Satsuma clans which had distinguished themselves
as loyalists on the occasion of the Meiji restoration and thereafter.42
The clan government (hanbatsu seiji ) was somewhat impaired by the
rivalry of the two leading clans and the permanent striving to keep
an equilibrium between them.
Itò proposed the creation of a cabinet instead of the Council of
State. The posts of the dajòdaijin (prime minister, or minister-president, or chancellor) and the ministers of the left and right should
be abolished and replaced with a prime minister and the necessary
ministers of state, who were to be appointed upon recommendation
of the prime minister. The plan also called for the prime minister
to be given control over the state ministers and to be made completely responsible for state affairs. The councillors approved Itò’s
proposal, and the Emperor assented.
On 22 December 1885 the last decree of the Council of State
was issued: complying with an imperial order it notified the disestablishment of the offices as prescribed in Itò’s plan, and announced
the creation of the Prime Minister and the Ministers of the Imperial
Household, Foreign Affairs, Home Affairs, Finance, Army, Navy,
Justice, Education, Agriculture and Commerce, and Communications.
With the exception of the Minister of the Imperial Household they
42
Taking the six last years of the dajòkan system (1880–1885) there were 14 councillors in all, five of them came from Chòshù and five from Satsuma. Two were
from Hizen (Saga) and two from Tosa, also loyalist clans. Politicians of such pedigree had been and were in the time ahead influential over several decades, the
leading persons being Toshimichi Òkubo († 1878), Hirobumi Itò († 1909), Aritomo
Yamagata († 1922). The dominance of the clan determining polity fell back when
in the late Taishò era the political parties had reached a firm status and played an
important role in the government.
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49
were all members of the Cabinet. Moreover, the office of the Lord
Keeper of the Privy Seal (naidaijin)43 was set up at the Court.
Simultaneously, ‘Official Powers of the Cabinet’ (naikaku shokken)
were enacted. Six of the seven articles pertained to the powers of
the Prime Minister (naikakusòridaijin). Article I declared that the Prime
Minister, as the head of the other ministers, should report on state
affairs to the Emperor and, upon receiving his orders, should give
instructions on the course of administrative policy; this article gave
the Prime Minister control over all executive departments. The second article authorized the Prime Minister to demand explanations
and to investigate the activities of the executive departments. Article
III empowered him to suspend the Imperial decision when it was
deemed necessary. Article IV gave the Prime Minister supervisory
control over the legislation drafting committees within the departments. Article V required the Prime Minister, and any minister whose
jurisdiction was concerned, to countersign laws and ordinances. Article
VI specified that each cabinet minister should make occasional reports
to the Prime Minister on the state of affairs within his own respective department, though in military matters the Minister of the Army
was to report to the Prime Minister what the General Staff Office
reported directly to the Throne.44 Article VII ruled that the duties
of a disabled cabinet minister were to be performed by another cabinet minister. As a whole the articles founded a strong position for
the Prime Minister and enabled him to install a cabinet of capable
43
Regularly assisting the emperor he was a liaison organ for communication
between the elder statesmen, the ministers etc. and the emperor; actually he instituted an important political activity.—A naidaijin had first been appointed in the
7th century, he served in the Imperial government (daijòkan) with a competence similar to that of the ministers of the left and right. His post and duty were not regulated in the old codes, he was an extraordinary minister. This old type of naidaijin
was done away with when the last bearer of the court rank ‘naidaijin’, the Shogun
Keiki Tokugawa, resigned this rank (Ishii/Chambliss (note 5) at 62/77. Regarding
that event the translation ‘Lord Keeper of the Privy Seal’ is ahead of its time, the
naidaijin of old had a function of its own—apart from the fact that it had become
a mere title).
The standing of the office of the new naidaijin, ‘Lord Keeper of the Privy Seal’,
may be gathered from the fact that the head of the Council of State (dajòdaijin)
Sanetomi Sanjò became naidaijin when he resigned in order to open the way to
the establishment of the cabinet system. Maybe the office of naidaijin was re-created
with the purpose of providing him with an appropriate position.
44
From “Article 1” to “Throne” translation by W. Chambliss (note 5) at 373 of
R. Ishii (note 5) at 302. “Department” = Ministry.
50
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men with no consideration of clan or family origin.45 Itò was appointed
Prime Minister, his first cabinet governed from 22 December 1885
to 30 April 1888; with intervals in between he formed four cabinets
by 1901.46
From 1886 to 1888 Itò in person was engaged in drafting the
constitution. The preparations have already been repeatedly described,
therefore, only the main features will be outlined here.
– The persons participating in the project were Kowashi Inoue (former chief of the Legislative Bureau), Miyoji Itò (member of the
Itò delegation studying in Europe), Kentarò Kaneko (government
official), and the German legal advisers Hermann Roesler and
Albert Mosse.47
– The work on the constitution was carried out in secrecy, at first
at Itò’s residence in the Shiba-Takanawa quarter of Tokyo, then
in a hotel at Kanazawa (south of Yokohama), and finally in Itò’s
villa on the island of Natsushima48 (near Yokosuka).
– The constitutional law of Prussia and Germany as well as the
experience of Itò’s delegation of 1882/3 in Europe were the general guidelines subject to the adaptation to Japanese conditions.
– When the drafting work commenced Itò instructed the Japanese
members of the team as follows:
1. The general principles relating to the Imperial house should be
separated from the Constitution by enactment of an Imperial
House Law.
2. Consideration for the national polity and the history of Japan
should be the fundamental principles that guide the drafting of
the Constitution.
3. The Constitution should be only a general outline concerning the
administration of the Empire; the text should be brief and clear,
and it should be written in such a way that it may respond flexibly
to the development of the national destiny.
45
Hirobumi Itò himself had risen from the lowest class of samurai in Chòshù.
In 1906 he was appointed Resident General in Korea. Following his resignation in 1909 he became President of the Privy Council for the fourth time on 14
June 1909. On 26 October 1909 he was assassinated by a Korean at Harbin/
Manchuria.
47
For the contributions of Roesler and Mosse see J. Andò (note 35).—Ishii/
Chambliss (note 5) at 303/374 et seqq.
48
“Matsushima” in W. Chambliss (note 5) at 375 is a misprint.
46
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51
4. The law of the houses and the election law for members of the
House of Representatives should be determined by statute law.
5. The organization of the House of Peers should be determined by
Imperial ordinance, and any amendments of this ordinance should
require the consent of the same House.
6. The territorial boundaries of the Japanese Empire should not be
included in the Constitution, but fixed by statute.
7. Impeachment of state ministers should be excluded; and both
houses should have the right to address the Throne. (Translation
by Chambliss.)
VI
The final draft put these requirements into effect. Particularly significant
was no. 3 of the instructions: until 1946 the Japanese Constitution
of 11 February 188949 was never amended, nonetheless the form of
government changed from bureaucracy to the Talshò democracy,
and lastly to military dictatorship. The characteristic of the bureaucratic form of government was the check on political parties’ participation in the administration. The first party cabinet was established
in 1898, it is true, but at that time this was a rare occurrence. Afterwards, mainly in the Taishò era (1912–1926), the parties gained more
influence, party cabinets and non-party cabinets alternated, and from
1924 there were only party cabinets until, in 1932, militarists came
into political power and governed up to the end of World War II.
On the other hand the Constitution allowed an absolutist regime
because it was based on the Tennò-ideology: the Emperor was sacred
and inviolable (art. 3) and therefore exempt from responsibility to
any authority on earth. The reign of the Emperor was the mental
picture of the kokutai which may be translated ‘fundamental character of the nation’ or ‘national polity’,50 but is really untranslatable.
It is a specific Japanese phenomenon without equivalence in Europe
or America.51 The term does not appear in the Constitution of 1889.
49
Appendix A.
This term is widely applied, but the renowned scientist Kenzò Takayanagi
held it to be “somewhat inaccurate”, in Law in Japan, The Legal Order in a
Changing Society, ed. by A.T. von Mehren; 1963.
51
A helpful interpretation is given by Klaus Antoni, Zum Begriff, zur Herkunft,
zur früheren und heutigen Bedeutung des kokutai (On the Concept, Origin, Former
and Present Significance of kokutai ), in Saeculum XXXVIII, no. 2–3 (1987), p. 266.
50
52
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Its gist was expressed in the Imperial Rescript on Education (Kyòiku
chokugo) of 30 October 1890, and a publication by the Ministry of
Education ‘Fundamentals of Our National Polity’ (Kokutai no hongi )
of 1937.52 To put the matter in a nutshell, the heart of kokutai53 was
expressed in art. I of the Constitution: The Empire of Japan is
reigned over and governed by the tennò coming from a line of
Emperors unbroken since the beginning of the state and surviving
for ages eternal. This doctrine about the interpretation and true
meaning of which various explanations were produced in the course
of time, served as an agent to incite the people—the subjects—to
be respectful and loyal to the Emperor and the authorities installed
by him, and to his government, as well as to live according to the
Confucian virtues. It was a vehicle for forcing obedience, domestic
peace and order, and national cohesion. The legal character of kokutai was given expression in the Law for Maintenance of the Public
Peace (Chian iji hò ) of 22 April 1925, art. 1 of which said: ‘A person who with the intention of revolutionizing the kokutai 54 forms an
association or. . . . [briefly: executes a function therein] will be sentenced to death or penal servitude for life or for at least seven years.’
Kokutai was the predominant idea, and Itò was determined to preserve it in the Constitution, as was expressed in his report of 19
September 1883 to the Emperor on the study of constitutional monarchy in Europe,55 and in no. 2 of his instructions for the drafting (see
above). Art. I of the Constitution gave kokutai the quality of written
constitutional law and made it an element of the aspect of absolutism which also appeared in other articles.
– the central position of the Emperor with regard to all actions of
the state, arts. 4 et seq., 57,
– emergency ordinances of the Emperor,
– the Emperor’s supreme command over the army and navy, art. 11.
52
de Bary (note 6) at 646–647 and 785–795. The ‘Fundamentals’ demonstrate
the spheres in which the kokutai ideology determines spirit and morals of the Japanese.
See also G. Rahn, Rechtsdenken und Rechtsauffassung in Japan (Legal Thinking
and Understanding in Japan), 1990, pp. 162–163.
53
Kokutai = ‘the form of the nation’ may not be confused with ‘seitai’ = ‘the form
of the government’.
54
The Supreme Court found in a judgement of 31 May 1929 that kokutai under
art. 1 of the said law has to be interpreted as laid down in art. I of the Constitution,
the message of which “is kokutai”.
55
Ishii/Chambliss (note 5) at 300/370.
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53
The supreme command is separated from the other state business,
and the Emperor is advised not by the ministers but by high
military officers without involvement of the diet in executing the
command.
– The autonomous Imperial House Law (Kòshitsu tenpan) without
involvement of the diet, arts. 2, 17, 74 paragraph 1.
Besides the aspect of absolutism, the Constitution of 1889 showed
democratic-liberal principles which were a matter of course since the
general guideline for legal reform, including the Constitution, was
the reception of modern western ideas in so far as they could be
regarded as or made suitable to Japanese conditions and would support the object of having the unequal treaties revised. The democratic-liberal aspect was expressed in the provisions concerning
– civil rights and liberties under chapter II which were guaranteed
“according to the provisions of law”; enactments under art. VIII
could restrict liberties as well,
– the separation of powers, grounded already in the Document of
the Government System (Seitaisho, see above) but under the Constitution, due to the position of the Emperor in legislation and
executive, realized in relatively pure form only for the judicature,
– the rule of law to be inferred from art. LXI binding the administration to law and regulations and laid down for the judicature
in art. LVII para 1,
– the establishment of the diet (chapter III) which, because of the
organization of the House of Peers and the limitation of the franchise (see below), represented the people only ineffectively; moreover, it was intended that the diet should have less influence than
the government,56
– the responsibility of the ministers of state for their advice to the
Emperor which afterwards, at times, developed into the responsibility
to the representatives of the people (the diet) = parliamentarianism.
56
That this was really implemented was inferred from art. LXXI. The argument
is not convincing. In times of increasing prices the diet can put the government in
the predicament of operating with a budget which does not cover the expenses.
54
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VII
Some institutions, not mentioned in the Constitution, had considerable political power with relevance to the constitutional order:
– Elder statesmen ( genrò),57 a small circle of advisers to the Emperor.
They had been active politicians but were no longer governmental functionaries. Most of them came from samurai families of the
greatest anti-shogunate domains Satsuma and Chòshù. They may
be called the scions of the dajòkan oligarchy. Their advice was
asked for in matters pertaining to basic questions of politics and
the appointment of the Prime Minister. Their influence was particularly strong in the Taishò- and early Shòwa era. The public
regarded this as unconstitutional, and the parties and media opposed
the institution.
– The aforementioned Lord Keeper of the Privy Seal (naidaijin) gave
advice to the Emperor, especially in the post-Meiji time when the
number of the genrò decreased.
– The General Staff Office (sanbò honbu), founded in 1878, was under
the direct control of the Emperor and took charge of military
affairs. That was the beginning of the independence of the supreme
command.
– The Naval General Staff Office (kaigun gunreibu), set up in 1886,
was subordinate to the General Staff Office and as such not independent, but broke away from the Minister of Naval Affairs who
was responsible for the administration.
– The Supreme Military Council ( gunji sangi’in), institutionalized in
1903 after, in 1887, the Army Minister, the Naval Minister, the
Chief of the General Staff Office, and the Military Supervisor
(kangun) had been appointed imperial advisers.58
57
Not to be confused with the members of the aforesaid genròin, the advisory
council existing from 1875 to 1890. During the period of fifty years up to 1940
there were only nine genrò in all, the last and since 1924 sole genrò, Kinmochi Saionji
(a Court noble) died in 1940. Since 1902 no new genrò had been appointed.
58
Kame’ichi Hosokawa, Nihon kindai hòseishi (Modern Japanese Legal History),
1961, pp. 117, 120, 123.
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55
VIII
The Constitution was accompanied by several laws of the same level:
– The Parliamentary Law (Gi’inhò) of 11 February 1889 which did
not enable the diet to control the government effectively, and so
realized the authoritarian intention to hold the diet down.
– The Law for the Election of Members of the House of Representatives (Shùgi’in gi’in senkyo hò) of 11 February 1889 limited the
right to vote to men of at least 25 years of age who paid at least
15 ¥ direct national tax and who had been registered and living
in the prefecture for one year or more.59 When, in 1925, the general right of men to vote was introduced the legislator thought it
necessary to enact the ill-famed Law for Maintenance of the Public
Peace (Chian iji hò) in order to suppress left-wing movements.
IX
As explained above the sovereignty of the Emperor, the quintessence
of kokutai, was the basic creed of the constitutional system. Arts. I
and IV of the Constitution soon became a bone of contention in
academic circles, especially among professors of law at Tokyo Imperial
University. The leading contestants were Yatsuka Hozumi and his
successor (1900) Shinkichi Uesugi, on the one hand, and Tatsukichi
Minobe on the other.60 Hozumi and Uesugi stood for the orthodox
interpretation, while Minobe said in an essay of November 1903
that the prevailing opinion that the monarch is the subject of governmental power was an error of juristic theory. “In present-day
juristic thinking, the state alone is the subject of governmental power,
59
Under this rule only 1.1 per cent of the population was entitled to vote. By
amendments of the law the required amount of tax was reduced to 10 ¥ (then 2.17
percent were entitled to vote at the 7th election in 1902), and in 1920 to 3 ¥ (then
5.49 per cent of the population could vote). In 1925 the general franchise for men
of at least 25 years of age was introduced, that allowed 19.44 per cent to vote.
Masayasu Hasegawa, Shòwa kenpòshi (History of the Constitution in the Shòwa Era),
1961, p. 26).
60
The dispute, the arguments, and the consequences of the contention have been
exhaustively described by Frank O. Miller, Minobe Tatsukichi—Interpreter of
Constitutionalism in Japan, 1965.
56
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and the monarch is an organ of the state.”61 This emperor-organ
theory (tennò kikan setsu), based on the ‘state personality’ theory of
German scientists, achieved nearly universal academic acceptance
and substantial official sanction.62 The stress lies on ‘academic’ because
the arguing was a professorial topic; the political development towards
the influence of parties and parliamentarism was of the same mind
as Minobe’s theory, but set in motion rather by the general tendency
to supersede the oligarchic bureaucracy by a liberal and potentially
democratic approach.
The academic struggle had almost been forgotten when the military-dominated, authoritarian regime became the governing power after
1932, an event which brought the actually very complex and turbulent
affairs of the agonizing ‘Taishò democracy’ to an end. The military
government regarded the rule of the political parties as the cause of
the crisis, and traced it back to the supposed decline of the kokutai
spirit to which Minobe’s Emperor-organ theory had, from the conservatives’ point of view, decisively contributed. Minobe had closed
his long academic career with retirement in 1934, but remained a
member of the House of Peers. As the creator and permanent adherent of the organ theory he, though generally appreciated, had incurred
the opposition, even enmity, of academic, bureaucratic and military
factions. Briefly, when his opponents and the military regime saw
the cause of the annoying parliamentarism and the decline of the
kokutai ideology in the party system which jeopardized the sovereignty of the tennò, they dug up the Emperor-organ theory and urged
that this theory should be officially condemned and the people made
fully aware of the true kokutai dogma. Minobe was labelled as an
‘academic roamer’. He resigned from his membership of the House
of Peers. Both houses of the diet decided to clarify the kokutai (kokutai meichò). On 3 August 1935 the government published the National
Polity Clarification Declaration (kokutai meichò seimei ) with the following statement.
It is beyond question that the supreme power of the reign in the Great
Japanese Empire rests unchallenged with the tennò. Committing to the
view that the sovereignty does not rest with the tennò and the tennò is to
be regarded as an organ for the purpose of exercising this power means
Miller (note 60) at 27. At 30–31 the reader will find a concise summary of
the issues between Uesugi and Minobe.
62
Miller, loc. cit. at 35.
61
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57
to misunderstand totally the fundamentals of our kokutai which has no
equal in the world. To look at the diverse arguments about the fundamentals of kokutai in the recent constitutional theory is indeed unbearably regrettable. The government is confident that by the clarification
of the kokutai more and more effectfully its glory will be enhanced.
On 15 October 1935 the government promulgated the Second Declaration of Clarification of kokutai. Pressed by the military the government adopted a stronger tone and demanded a strict eradication of
the organ theory. So, the outcome of the struggle was the victory
of the militarists and strengthened their position in the leadership of
state affairs. Although “it is very clear that [the organ theory issue
of 1935] was a purely political question”63 it has been mentioned
here because it was the only serious dispute concerning the Meiji
constitution which in other respects was not materially challenged,
particularly since the courts of law were not authorized to judge the
constitutionality of a law and so estimate and interpret the articles
of the Constitution as regards their substance.64
X
The creation of the new Constitution (Nihonkoku kenpò) of 3 November
1946 (Appendix B), in force from 3 May 1947, has already been
described repeatedly. The development can be looked up in the
works on the present constitution and will not be explained in detail
here.65 The main features are:
– The influence of American constitutional ideas is conspicuous. The
General Headquarters of the Supreme Commander (US General
Douglas McArthur) for the Allied Powers (SCAP), in which the USA
were all-important, guided the drafting of the new Constitution.66
63
T. Miyazawa, cited in Miller (note 60) at 251.
This academic view, at first controversially disputed, had grown to be predominant and agreed to by the Supreme Court and the Court of Administrative
Litigation. Toshiyoshi Miyazawa, Nihonkoku kenpò (Constitution of Japan), 1958,
p. 667. Hògaku Kyòkai (The Jurisprudence Society) ed., Chùkai Nihonkoku kenpò
(Commentary on the Constitution of Japan), vol. 2, 1954, p. 1210.
65
Valuable material has been collected in ‘Political Reorientation of Japan,
September 1945 to September 1948’, Report of Government Section Supreme
Commander for the Allied Powers, 1949.
66
Other than in Germany after World War II the SCAP itself did not enact
laws and ordinances but advised the Japanese legislator and controlled his legislation.
64
58
–
–
–
–
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Therefore, opposing political circles regarded the Constitution as
‘imposed’.
The Constitution was drafted and passed by the diet not as a new
code but as an amendment of the Meiji constitution under its art.
LXXIII.
In contrast to the Meiji constitution the amendment was enacted
in the course of parliamentary procedure.
Art. 1 of the new Constitution instituted the sovereignty of the
people.
The sovereignty of the people collided with the kokutai, and to
preserve this ‘national polity’ was a matter of utmost concern to
the Japanese. The crucial problem was: has the kokutai changed?
The solution was found in an appropriate explanation of kokutai.
The government argued: we should not start from ‘where resides
souvereign power?’ but from the old thesis of experts of constitutional
law: ‘if the kokutai is changed the nation perishes, i.e. it is no longer
the same’. The people are convinced that from the foundation of
Japan until today the identity of the Japanese nation has never
been changed. This notion is always connected with the existence
of the tennò. His political position was different in the various periods of history; there were periods during which he had no real
political power. As such, the fact that under the new Constitution
he is denied political rights does not mean a change of the kokutai. Looked at in this way, it would be impossible for the kokutai
to exist without the tennò, i.e. not simply the existence of an imperial house. The existence of the tennò, however it appears outwardly, is in the end nothing but a psychological medium which
unites the people and on which the Japanese nation is founded.
The new constitution does not change anything about that.67
The amendment of the Constitution was passed whether the official
argument convinced the members of the diet or not, there was no
alternative, and after all the politicians had saved the institution
‘tennò ’. But the scientists kept to the view that the sovereignty of the
67
Wilhelm Röhl, Die Japanische Verfassung (The Japanese Constitution), 1963,
p. 49.—See also Shirò Kiyomiya, Kenpò I (Constitution, vol. 1), 1957, p. 139. Kenpò
Chòsakai, Kenpò Seitei no Keika ni Kansuru Shòiinkai (Board of Investigation
into the Constitution, Subcommittee for Research into the Course of the Creation
of the Constitution) ed., Nihonkoku kenpò seitei no yurai (History of the Enactment of
the Japanese Constitution), 1962, p. 432.
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59
emperor was the fundamental nature of the kokutai and therefore
expressed their opinion that the kokutai had been altered; consequently
ardent supporters of the kokutai theory held the event to be a revolution.
– To insert the renunciation of war (art. IX) into the Constitution
was the mutual wish of General MacArthur and the Japanese Prime
Minister Kijùrò Shidehara, the latter possibly being the initiator.68
This article has been disputed continuously, and it is widely known
that political circumstances and considerations in later years had the
effect that the substance of the article has deviated from the original notion.
– The rights and duties of the people are regulated similarly to the
constitutions of other modern democratic states under the rule of
law. Of the 31 articles those concerning rights and freedoms are by
far the most numerous. The only general duty is to pay tax. While
the rights of the ‘subjects’ under the Meiji constitution were regarded
as granted by imperial benevolence they are now guaranteed by the
Constitution, and the fundamental human rights are called eternal
and inviolate, arts. XI and XCVII.
– The judiciary has been made a true third power in the state
with the authority of the Supreme Court (saikòsaibansho) to administer the judicial affairs (art. LXXVII) and to determine the constitutionality of any law, order, regulation, or official act (art. LXXXI).
Not considering the politically motivated method to amend the
Meiji constitution in 1946, the present constitution, like its predecessor, has never been revised.
68
Klaus Schlichtmann, Shidehara Kijùrò: Staatsmann und Pazifist, eine politische Biographie (Shidehara Kijùrò: Statesman and Pacifist, a Political Biography),
1998, p. 462 et seqq.
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APPENDIX A
THE CONSTITUTION OF THE EMPIRE OF JAPAN
(Meiji Kempo)
PREAMBLE
Having, by virtue of the glories of Our Ancestors, ascended the
Throne of lineal succession unbroken for ages eternal; desiring to
promote the welfare of, and to give development to the moral and
intellectual faculties of Our beloved subjects, the very same that have
been favoured with the benevolent care and affectionate vigilance of
Our Ancestors; and hoping to maining the prosperity of the State,
in concert with Our people and with their support, We hereby promulgate, in pursuance of Our Imperial Rescript of the 12th day of
the 10th month of the 14th year of Meiji, a fundamental law of
State, to exhibit the principles by which We are to be guided in
Our conduct, and to point out what Our descendants and Our subjects and their descendants are forever to conform.
The rights of sovereignty of the State, We have inherited from Our
Ancestors, and We shall bequeath them to Our descendants. Neither
We nor they shall in future fail to wield them, in accordance with
the provisions of the Constitution hereby granted.
We now declare to respect and protect the security of the rights
and of the property of Our people, and to secure to them the complete enjoyment of the same, within the extent of the provisions of
the present Constitution and of the law.
The Teikoku Gikai shall first be convoked for the 23rd year of
Meiji, and the time of its opening shall be the date when the present Constitution goes into force.
When, in the future, it may become necessary to amend any of the
provisions of the present Constitution, We or Our successors shall
assume the initiative right, and submit a project for the same to the
Teikoku Gikai. The Teikoku Gikai shall pass its vote upon it, according to the conditions imposed by the present Constitution, and in
no otherwise shall Our descendants or Our subjects be permitted to
attempt any alteration thereof.
Our Ministers of State, on Our behalf, shall be held responsible
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61
for the carrying out of the present Constitution, and Our present
and future subjects shall forever assume the duty of allegiance to the
present Constitution.
(His Imperial Majesty’s Sign-Manual.)
(Privy Seal.)
The 11th day of the 2nd month of the 22nd year of Meiji.
(Countersigned) Count Kuroda Kiyotaka,
Minister President of State.
Count Itò Hirobumi,
President of the Privy Council.
Count Òkuma Shigenobu,
Minister of State for Foreign Affairs.
Count Saigò Tsukumichi,
Minister of State for the Navy.
Count Inoue Kaoru,
Minister of State for Agriculture and Commerce.
Count Yamada Akiyoshi,
Minister of State for Justice.
Count Matsukata Masayoshi,
Minister of State for Finance and Minister of State for
Home Affairs.
Count Òyama Iwao,
Minister of State for War.
Viscount Mori Arinori,
Minister of State for Education.
Viscount Enomoto Takeaki,
Minister of State for Communications.
CHAPTER I
THE TENNO
Article I
The Empire of Japan shall be reigned over and governed by a line
of Tenno unbroken for ages eternal.
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Article II
The Imperial Throne shall be succeeded to by Imperial male descendants, according to the provisions of the Imperial House Law.
Article III
The Tenno is sacred and inviolable.
Article IV
The Tenno stands at the head of the Empire, combining in Himself
the rights of sovereignty and exercises them, according to the provisions of the present Constitution.
Article V
The Tenno exercises the legislative power with the consent of the
Teikoku Gikai.
Article VI
The Tenno gives sanction to laws, and orders them to be promulgated and executed.
Article VII
The Tenno convokes the Teikoku Gikai, opens, closes and prorogues
it, and dissolves the House of Representatives.
Article VIII
The Tenno, in consequence of an urgent necessity to maintain public safety or to avert public calamities, issues, when the Teikoku Gikai
is not sitting, Imperial Ordinances in the place of law.
Such Imperial Ordinances are to be laid before the Teikoku Gikai
at its next session, and when the Gikai does not approve the said
Ordinances, the Government shall declare them to be invalid for
the future.
Article IX
The Tenno issues or causes to be issued, the Ordinances necessary
for the carrying out of the laws, or for the maintenance of the pub-
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lic peace and order, and for the promotion of the welfare of the
subjects. But no Ordinance shall in any way alter any of the existing laws.
Article X
The Tenno determines the organization of the different branches of
the administration and the salaries of all civil and military officers,
and appoints and dismisses the same. Exceptions especially provided
for in the present Constitution or in other laws, shall be in accordance with the respective provisions (bearing thereon).
Article XI
The Tenno has the supreme command of the Army and Navy.
Article XII
The Tenno determines the organization and peace standing of the
Army and Navy.
Article XIII
The Tenno declares war, makes peace, and concludes treaties.
Article XIV
The Tenno declares a state of siege.
The conditions and effects of a state of siege shall be determined
by law.
Article XV
The Tenno confers titles of nobility, rank, orders and other marks
of honor.
Article XVI
The Tenno orders amnesty, pardon, commutation of punishments
and rehabilitation.
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Article XVII
A Regency shall be instituted in conformity with the provisions of
the Imperial House Law.
The Regent shall exercise the powers appertaining to the Tenno
in His name.
CHAPTER II
RIGHTS AND DUTIES OF SUBJECTS
Article XVIII
The conditions necessary for being a Japanese subject shall be determined by law.
Article XIX
Japanese subjects may, according to qualifications determined in laws
or ordinances, be appointed to civil or military or any other public
offices equally.
Article XX
Japanese subjects are amenable to service in the Army or Navy,
according to the provisions of law.
Article XXI
Japanese subjects are amenable to the duty of paying taxes, according to the provisions of law.
Article XXII
Japanese subjects shall have the liberty of abode and of changing
the same within the limits of law.
Article XXIII
No Japanese subject shall be arrested, detained tried, or punished,
unless according to law.
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Article XXIV
No Japanese subject shall be deprived of his right of being tried by
the judges determined by law.
Article XXV
Except in the cases provided for in the law, the house of no Japanese
subject shall be entered or searched without his consent.
Article XXVI
Except in the cases mentioned in the law, the secrecy of the letters
of every Japanese subject shall remain inviolate.
Article XXVII
The right of property of every Japanese subject shall remain inviolate.
Disposal of property necessary for the public benefit shall be provided for by law.
Article XXVIII
Japanese subjects shall, within limits not prejudicial to peace and
order, and not antagonistic to their duties as subjects, enjoy freedom of religious belief.
Article XXIX
Japanese subjects shall, within limits of law, enjoy the liberty of
speech, writing, publication, public meetings and associations.
Article XXX
Japanese subjects may present petitions, by observing the proper
forms of respect, and by complying with the rules specially provided
for the same.
Article XXXI
The provisions contained in the present Chapter shall not affect the
exercise of the powers appertaining to the Tenno, in times of war
or in cases of a national emergency.
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Article XXXII
Each and every one of the provisions contained in the preceding
articles of the present Chapter, that are not in conflict with the laws
or the rules and discipline of the Army and Navy, shall apply to the
officers and men of the Army and of the Navy.
CHAPTER III
THE TEIKOKU GIKAI
Article XXXIII
The Teikoku Gikai shall consist of two Houses, a House of Peers
and a House of Representatives.
Article XXXIV
The House of Peers shall, in accordance with the Ordinance concerning the House of Peers, be composed of the members of the
Imperial Family, of the orders of the nobility, and of those persons,
who have been nominated thereto by the Tenno.
Article XXXV
The House of Representatives shall be composed of Members elected
by the people, according to the provisions of the Law of Election.
Article XXXVI
No one can at one and the same time be a Member of both Houses.
Article XXXVII
Every law requires the consent of the Teikoku Gikai.
Article XXXVIII
Both Houses shall vote upon projects of law submitted to it by the
Government, and may respectively initiate projects of law.
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Article XXXIX
A Bill, which has been rejected by either the one or the other of the
two Houses, shall not be again brought in during the same session.
Article XL
Both Houses can make representations to the Government, as to
laws or upon any other subject. When, however, such representations are not accepted, they cannot be made a second time during
the same session.
Article XLI
The Teikoku Gikai shall be convoked every year.
Article XLII
A session of the Teikoku Gikai shall last during three months. In
case of necessity, the duration of a session may be prolonged by
Imperial Order.
Article XLIII
When urgent necessity arises, an extraordinary session may be convoked, in addition to the ordinary one.
The duration of an extraordinary session shall be determined by
Imperial Order.
Article XLIV
The opening, closing, prolongation of session and the prorogation
of the Teikoku Gikai, shall be effected simultaneously for both Houses.
In case the House of Representatives has been ordered to dissolve, the House of Peers shall at the same time be prorogued.
Article XLV
When the House of Representatives has been ordered to dissolve,
Members shall be caused by Imperial Order to be newly elected,
and the new House shall be convoked within five months from the
day of dissolution.
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Article XLVI
No debate can be opened and no vote can be taken in either House
of the Teikoku Gikai, unless not less than one third of the whole
number of Members thereof are present.
Article XLVII
Votes shall be taken in both Houses by absolute majority. In the
case of a tie vote, the President shall have the casting vote.
Article XLVIII
The deliberations of both Houses shall be held in public. The deliberations may, however, upon demand of the Government or by resolution of the House, be held in secret sitting.
Article XLIX
Both Houses of the Teikoku Gikai may respectively present addresses
to the Tenno.
Article L
Both Houses may receive petitions presented by subjects.
Article LI
Both Houses may enact, besides what is provided for in the present
Constitution and in the Law of the Houses, rules necessary for the
management of their internal affairs.
Article LII
No Member of either House shall be held responsible outside the
respective House, for any opinion uttered or for any vote given in
the House. When, however, a Member himself has given publicity
to his opinions by public speech, by documents in print or in writing, or by any other similar means, he shall, in the matter, be
amenable to the general law.
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Article LIII
The Members of both Houses shall, during the session, be free from
arrest, unless with the consent of the Houses, except in cases of
flagrant delicts, or of offences connected with a state of internal commotion or with a foreign trouble.
Article LIV
The Ministers of State and the Delegates of the Government may,
at any time, take seats and speak in either House.
CHAPTER IV
THE MINISTERS OF STATE AND
THE PRIVY COUNCIL
Article LV
The respective Ministers of State shall give their advice to the Tenno,
and be responsible for it.
All Laws, Imperial Ordinances and Imperial Rescripts of whatever kind, that relate to the affairs of the State, require the countersignature of a Minister of State.
Article LVI
The Privy Councillors shall, in accordance with the provisions for
the organization of the Privy Council, deliberate upon important
matters of State, when they have been consulted by the Tenno.
CHAPTER V
THE JUDICATURE
Article LVII
The Judicature shall be exercised by the Courts of Law according
to law in the name of the Tenno.
The organization of the Courts of Law shall be determined by law.
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Article LVIII
The judges shall be appointed from among those, who possess proper
qualifications according to law.
No judge shall be deprived of his position, unless by way of criminal sentence or disciplinary punishment.
Rules for disciplinary punishment shall be determined by law.
Article LIX
Trials and judgements of a Court shall be conducted publicly.
When, however, there exists any fear, that such publicity may be
prejudicial to peace and order, or to the maintenance of public
morality, the public trial may be suspended by provision of law or
by the decision of the Court of law.
Article LX
All matters, that fall within the competency of a special Court, shall
be specially provided for by law.
Article LXI
No suit at law, which relates to rights alleged to have been infringed
by the illegal measures of the administrative authorities, and which
shall come within the competency of the Court of Administrative
Litigation specially established by law, shall be taken cognizance of
by a Court of Law.
CHAPTER VI
FINANCE
Article LXII
The imposition of a new tax or the modification of the rates (of an
existing one) shall be determined by law.
However, all such administrative fees or other revenue having the
nature of compensation shall not fall within the category of the above
clause.
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The raising of national loans and the contracting of other liabilities
to the charge of the National Treasury, except those that are provided
for in the Budget, shall require the consent of the Teikoku Gikai.
Article LXIII
The taxes levied at present shall, in so far as they are not remodelled by a new law, be collected according to the old system.
Article LXIV
The expenditure and revenue of the State require the consent of the
Teikoku Gikai by means of an annual Budget.
Any and all expenditures overpassing the appropriations set forth
in the Titles and Paragraphs of the Budget, or that are not provided for in the Budget, shall subsequently require the approbation
of the Teikoku Gikai.
Article LXV
The Budget shall be first laid before the House of Representatives.
Article LXVI
Expenditures of the Imperial House shall be defrayed every year out
of the National Treasury, according to the present fixed amount for
the same, and shall not require the consent thereto of the Teikoku
Gikai, except in case an increase thereof is found necessary.
Article LXVII
Those already fixed expenditures based by the Constitution upon
the powers appertaining to the Tenno, and such expenditures as
may have arisen by the effect of law, or that appertain to the legal
obligations of the Government, shall be neither rejected nor reduced
by the Teikoku Gikai, without the concurrence of the Government.
Article LXVIII
In order to meet special requirements, the Government may ask the
consent of the Teikoku Gikai to a certain amount as a Continuing
Expenditure Fund, for a previously fixed number of years.
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Article LXIX
In order to supply deficiencies, which are unavoidable, in the Budget,
and to meet requirements unprovided for in the same, a Reserve
Fund shall be provided for in the Budget.
Article LXX
When the Teikoku Gikai cannot be convoked, owing to the external or internal condition of the country, in case of urgent need for
the maintenance of public safety, the Government may take all necessary financial measures, by means of an Imperial Ordinance.
In the case mentioned in the preceding clause, the matter shall
be submitted to the Teikoku Gikai at its next session, and its approbation shall be obtained thereto.
Article LXXI
When the Teikoku Gikai has not voted on the Budget, or when the
Budget has not been brought into actual existence, the Government
shall carry out the Budget of the preceding year.
Article LXXII
The final account of the expenditures and revenue of the State shall
be verified and confirmed by the Board of Audit, and it shall be
submitted by the Government to the Teikoku Gikai, together with
the report of verification of the said Board.
The organization and competency of the Board of Audit shall be
determined by law separately.
CHAPTER VII
SUPPLEMENTARY RULES
Article LXXIII
When it has become necessary in future to amend the provisions of
the present Constitution, a project to that effect shall be submitted
to the Teikoku Gikai by Imperial Order.
In the above case, neither House can open the debate, unless not
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less than two thirds of the whole number of Members are present,
and no amendment can be passed, unless a majority of not less than
two-thirds of the Members present is obtained.
Article LXXIV
No modification of the Imperial House Law shall be required to be
submitted to the deliberation of the Teikoku Gikai.
No provision of the present Constitution can be modified by the
Imperial House Law.
Article LXXV
No modification can be introduced into the Constitution, or into the
Imperial House Law, during the time of a Regency.
Article LXXVI
Existing legal enactments, such as laws, regulations, Ordinances, or
by whatever names they may be called, shall, so far as they do not
conflict with the present Constitution, continue in force.
All existing contracts or orders, that entail obligations upon the
Government, and that are connected with expenditure, shall come
within the scope of Article LXVII.
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APPENDIX B
THE CONSTITUTION OF JAPAN
NOVEMBER 3, 1946
PREFACE
We, the Japanese people, acting through our duly elected representatives
in the National Diet, determined that we shall secure for ourselves
and our posterity the fruits of peaceful cooperation with all nations
and the blessings of liberty throughout this land, and resolved that
never again shall we be visited with the horrors of war through the
action of government, do proclaim that sovereign power resides with
the people and do firmly establish this Constitution. Government is
a sacred trust of the people, the authority for which is derived from
the people, the powers of which are exercised by the representatives
of the people, and the benefits of which are enjoyed by the people.
This is a universal principle of mankind upon which this Constitution
is founded. We reject and revoke all constitutions, laws ordinances,
and rescripts in conflict herewith. We, the Japanese people, desire
peace for all time and are deeply conscious of the high ideals controlling human relationship and we have determined to preserve our
security and existence, trusting in the justice and faith of the peaceloving peoples of the world. We desire to occupy an honored place
in an international society striving for the preservation of peace, and
the banishment of tyranny and slavery, oppression and intolerance
for all time from the earth. We recognize that all peoples of the
world have the right to live in peace, free from fear and want. We
believe that no nation is responsible to itself alone, but that laws of
political morality are universal; and that obedience to such laws is
incumbent upon all nations who would sustain their own sovereignty
and justify their sovereign relationship with other nations. We, the
Japanese people, pledge our national honor to accomplish these high
ideals and purposes with all our resources.
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CHAPTER I
THE EMPEROR
Article 1
The Emperor shall be the symbol of the State and the unity of the
people, deriving his position from the will of the people with whom
resides sovereign power.
Article 2
The Imperial Throne shall be dynastic and succeeded to in accordance with the Imperial House Law passed by the Diet.
Article 3
The advice and approval of the Emperor in matters of state, and
the Cabinet shall be responsible therefore.
Article 4
The Emperor shall perform only such acts in matters of state as are
provided for in this Constitution and he shall not have powers related
to government. 2) The Emperor may delegate the performance of
his acts in matters of state as may be provided for by law.
Article 5
When, in accordance with the Imperial House Law, a Regency is
established, the Regent shall perform his acts in matters of state in
the Emperor’s name. In this case, paragraph one of the preceding
Article will be applicable.
Article 6
The Emperor shall appoint the Prime Minister as designated by the
Emperor shall appoint the Chief Judge of the Supreme Court as
designated by the Cabinet.
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Article 7
The Emperor shall, with the advice and approval of the Cabinet,
perform the following acts in matters of state on behalf of the people: (1) Promulgation of amendments of the constitution, laws, cabinet orders and treaties. (2) Convocation of the Diet. (3) Dissolution
of the House of Representatives. (4) Proclamation of general election of members of the Diet. (5) Attestation of the appointment and
dismissal of Ministers of State and other officials as provided for by
law, and of full powers and credentials of Ambassadors and Ministers.
(6) Attestation of general and special amnesty, commutation of punishment, reprieve, and restoration of rights. (7) Awarding of honors.
(8) Attestation of instruments of ratification and other diplomatic documents as provided for by law. (9) Receiving foreign ambassadors
and ministers. (10) Performance of ceremonial functions.
Article 8
No property can be given to, or received by, the Imperial House,
nor can any gifts be made therefrom, without the authorization of
the Diet.
CHAPTER II
RENUNCIATION OF WAR
Article 9
Aspiring sincerely to an international peace based on justice and
order, the Japanese people forever renounce war as a sovereign right
of the nation and the threat or use of force as means of settling
international disputes. 2) In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war
potential, will never be maintained. The right of belligerency of the
state will not be recognized.
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CHAPTER III
RIGHTS AND DUTIES OF THE PEOPLE
Article 10
The conditions necessary for being a Japanese national shall be determined by law.
Article 11
The people shall not be prevented from enjoying any of the fundamental human rights. These fundamental human rights guaranteed
to the people by this Constitution shall be conferred upon the people of this and future generations as eternal and inviolate rights.
Article 12
The freedoms and rights guaranteed to the people by this Constitution
shall be maintained by the constant endeavor of the people, who
shall refrain from any abuse of these freedoms and rights and shall
always be responsible for utilizing them for the public welfare.
Article 13
All of the people shall be respected as individuals. Their right to
life, liberty, and the pursuit of happiness shall, to the extent that it
does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.
Article 14
All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race,
creed, sex, social status or family origin. 2) Peers and peerage shall
not be recognized. 3) No privilege shall accompany any award of
honor, decoration or any distinction, nor shall any such award be
valid beyond the lifetime of the individual who now holds or hereafter may receive it.
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Article 15
The people have the inalienable right to choose their public officials
and to dismiss them. 2) All public officials are servants of the whole
community and not of any group thereof. 3) Universal adult suffrage
is guaranteed with regard to the election of public officials. 4) In all
elections, secrecy of the ballot shall not be violated. A voter shall
not be answerable, publicly or privately, for the choice he has made.
Article 16
Every person shall have the right of peaceful petition for the redress
of damage, for the removal of public officials, for the enactment,
repeal or amendment of laws, ordinances or regulations and for other
matters; nor shall any person be in any way discriminated against
for sponsoring such a petition.
Article 17
Every person may sue for redress as provided by law from the State
or a public entity, in case he has suffered damage through illegal
act of any public official.
Article 18
No person shall be held in bondage of any kind. Involuntary servitude, except as punishment for crime, is prohibited.
Article 19
Freedom of thought and conscience shall not be violated.
Article 20
Freedom of religion is guaranteed to all. No religious organization
shall receive any privileges from the State, nor exercise any political authority. 2) No person shall be compelled to take part in any
religious acts, celebration, rite or practice. 3) The State and its organs
shall refrain from religious education or any other religious activity.
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Article 21
Freedom of assembly and association as well as speech, press and
all other forms of expression are guaranteed. 2) No censorship shall
be maintained, nor shall the secrecy of any means of communication be violated.
Article 22
Every person shall have freedom to choose and change his residence
and to choose his occupation to the extent that it does not interfere
with the public welfare. 2) Freedom of all persons to move to a foreign country and to divest themselves of their nationality shall be
inviolate.
Article 23
Academic freedom is guaranteed.
Article 24
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. 2) With regard to choice
of spouse, property rights, inheritance, choice of domicile, divorce
and other matters pertaining to marriage and the family, laws shall
be enacted from the standpoint of individual dignity and the essential equality of the sexes.
Article 25
All people shall have the right to maintain the minimum standards
of wholesome and cultured living. 2) In all spheres of life, the State
shall use its endeavors for the promotion and extension of social welfare and security, and of public health.
Article 26
All people shall have the right to receive an equal education correspondent to their ability, as provided for by law. 2) All people shall
be obligated to have all boys and girls under their protection receive
ordinary education as provided for by law. Such compulsory education shall be free.
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Article 27
All people shall have the right and the obligation to work. 2) Standards
for wages, hours, rest and other working conditions shall be fixed
by law. 3) Children shall not be exploited.
Article 28
The right of workers to organize and to bargain and act collectively
is guaranteed.
Article 29
The right to own or to hold property is inviolable. 2) Property rights
shall be defined by law, in conformity with the public welfare. 3)
Private property may be taken for public use upon just compensation therefore.
Article 30
The people shall be liable to taxation as provided for by law.
Article 31
No person shall be deprived of life or liberty, nor shall any other
criminal penalty be imposed, except according to procedure established by law.
Article 32
No person shall be denied the right of access to the courts.
Article 33
No person shall be apprehended except upon warrant issued by a
competent judicial officer which specifies the offense with which the
person is charged, unless he is apprehended, the offense being
committed.
Article 34
No person shall be arrested or detained without being at once
informed of the charges against him or without the immediate privilege
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of counsel; nor shall he be detained without adequate cause; and
upon demand of any person such cause must be immediately shown
in open court in his presence and the presence of his counsel.
Article 35
The right of all persons to be secure in their homes, papers and
effects against entries, searches and seizures shall not be impaired
except upon warrant issued for adequate cause and particularly
describing the place to be searched and things to be seized, or except
as provided by Article 33.2) Each search or seizure shall be made
upon separate warrant issued by a competent judicial officer.
Article 36
The infliction of torture by any public officer and cruel punishments
are absolutely forbidden.
Article 37
In all criminal cases the accused shall enjoy the right to a speedy
and public trial by an impartial tribunal. 2) He shall be permitted
full opportunity to examine all witnesses, and he shall have the right
of compulsory process for obtaining witnesses on his behalf at public expense. 3) At all times the accused shall have the assistance of
competent counsel who shall, if the accused is unable to secure the
same by his own efforts, be assigned to his use by the State.
Article 38
No person shall be compelled to testify against himself. 2) Confession
made under compulsion, torture or threat, or after prolonged arrest
or detention shall not be admitted in evidence. 3) No person shall
be convicted or punished in cases where the only proof against him
is his own confession.
Article 39
No person shall be held criminally liable for an act which was lawful at the time it was committed, or of which he had been acquitted, nor shall he be placed in double jeopardy.
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Article 40
Any person may, in case he is acquitted after he has been arrested
or detained, sue the State for redress as provided for by law.
CHAPTER IV
THE DIET
Article 41
The Diet shall be the highest organ of the state power, and shall
be the sole law-making organ of the State.
Article 42
The Diet shall consist of two Houses, namely the House of Representatives and the House of Councillors.
Article 43
Both Houses shall consist of elected members, representative of all
the people. 2) The number of the members of each House shall be
fixed by law.
Article 44
The qualifications of members of both Houses and their electors
shall be fixed by law. However, there shall be no discrimination
because of race, creed, sex, social status, family origin, education,
property or income.
Article 45
The term of office of members of the House of Representatives shall
be four years. However, the term shall be terminated before the full
term is up in case the House of Representatives is dissolved.
Article 46
The term of office of members of the House of Councillors shall be
six years, and election for half the members shall take place every
three years.
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Article 47
Electoral districts, method of voting and other matters pertaining to
the method of election of members of both Houses shall be fixed
by law.
Article 48
No person shall be permitted to be a member of both Houses
simultaneously.
Article 49
Members of both Houses shall receive appropriate annual payment
from the national treasury in accordance with law.
Article 50
Except in cases as provided for by law, members of both Houses
shall be exempt from apprehension while the Diet is in session, and
any members apprehended before the opening of the session shall
be freed during the term of the session upon demand of the House.
Article 51
Members of both Houses shall not be held liable outside the House
for speeches, debates or votes cast inside the House.
Article 52
An ordinary session of the Diet shall be convoked once per year.
Article 53
The Cabinet may determine to convoke extraordinary sessions of
the Diet. When a quarter or more of the total members of either
House makes the demand, the Cabinet must determine on such
convocation.
Article 54
When the House of Representatives is dissolved, there must be a
general election of members of the House of Representatives within
forty(40) days from the date of dissolution, and the Diet must be
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convoked within thirty (30) days from the date of the election. 2)
When the House of Representatives is dissolved, the House of
Councillors is closed at the same time. However, the Cabinet may,
in time of national emergency, convoke the House of Councillors in
emergency session. 3) Measures taken at such session as mentioned
in the proviso of the preceding paragraph shall be provisional and
shall become null and void unless agreed to by the House of
Representatives within a period of ten (10) days after the opening of
the next session of the Diet.
Article 55
Each House shall judge disputes related to qualifications of its members. However, in order to deny a seat to any member, it is necessary to pass a resolution by a majority of two-thirds or more of the
members present.
Article 56
Business cannot be transacted in either House unless one-third or
more of total membership is present. 2) All matters shall be decided,
in each House, by a majority of those present, except as elsewhere
provided for in the Constitution, and in case of a tie, the presiding
officer shall decide the issue.
Article 57
Deliberation in each House shall be public. However, a secret meeting may be held where a majority of two-thirds or more of those
members present passes a resolution therefor. 2) Each House shall
keep a record of proceedings. This record shall be published and
given general circulation, excepting such parts of proceedings of secret
session as may be deemed to require secrecy. 3) Upon demand of
one-fifth or more of the members present, votes of the members on
any matter shall be recorded in the minutes.
Article 58
Each House shall select its own president and other officials. 2) Each
House shall establish its rules pertaining to meetings, proceedings
and internal discipline, and may punish members for disorderly con-
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duct. However, in order to expel a member, a majority of two-thirds
or more of those members present must pass a resolution thereon.
Article 59
A bill becomes a law on passage by both Houses, except as otherwise provided for by the Constitution. 2) A bill, which is passed by
the House of Representatives, and upon which the House of Councillors
makes a decision different from that of the House of Representatives,
becomes a law when passed a second time by the House of
Representatives by a majority of two-thirds or more of the members
present. 3) The provision of the preceding paragraph does not preclude the House of Representatives from calling for the meeting of
a joint committee of both Houses, provided for by law. 4) Failure
by the House of Councillors to take final action within sixty (60) days
after receipt of a bill passed by the House of Representatives, time
in recess excepted, may be determined by the House of Representatives
to constitute a rejection of the said bill by the House of Councillors.
Article 60
The budget must first be submitted to the House of Representatives.
2) Upon consideration of the budget, when the House of Councillors
makes a decision different from that of the House of Representatives,
and when no agreement can be reached even through a joint committee of both Houses, provided for by law, or in the case of failure by the House of Councillors to take final action within thirty (30)
days, the period of recess excluded, after the receipt of the budget
passed by the House of Representatives, the decision of the House
of Representatives shall be the decision of the Diet.
Article 61
The second paragraph of the preceding Article applies also the Diet
approval required for the conclusion of treaties.
Article 62
Each House may conduct investigations in relation to government,
and may demand the presence and testimony of witnesses, and the
production of records.
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Article 63
The Prime Minister and other Ministers of State may, at any time,
appear in either House for the purpose of speaking on bills, regardless of whether they are members of the House or not. They must
appear when their presence is required in order to give answers or
explanations.
Article 64
The Diet shall set up an impeachment court from among the members of both Houses for the purposes of trying those judges against
whom removal proceedings have been instituted. 2) Matters relating
to impeachment shall be provided for by law.
CHAPTER V
THE CABINET
Article 65
Executive power shall be vested in the Cabinet.
Article 66
The Cabinet shall consist of the Prime Minister, who shall be its
head, and other Ministers of State, as provided for by law. 2) The
Prime Minister and other Ministers of State must be civilians. 3)
The Cabinet shall, in the exercise of executive power, be collectively
responsible to the Diet.
Article 67
The Prime Minister shall be designated from among the members
of the Diet by a resolution of the Diet. This designation shall precede all other business. 2) If the House of Representatives and the
House of Councillors disagree and if no agreement can be reached
even through a joint committee of both Houses, provided for by
law, or the House of Councillors fails to make designation within
ten (10) days, exclusive of the period of recess, after the House of
Representatives has made designation, the decision of the House of
Representatives shall be the decision of the Diet.
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Article 68
The Prime Minister shall appoint the Ministers of State. However,
a majority of their number must be chosen from among the members of the Diet. 2) The Prime Minister may remove the Ministers
of State as he chooses.
Article 69
If the House of Representatives passes a non-confidence resolution,
or rejects a confidence resolution, the Cabinet shall resign en masse,
unless the House of Representatives is dissolved within ten (10) days.
Article 70
When there is a vacancy in the post of Prime Minister, or upon the
first convocation of the Diet after a general election of members of
the House of Representatives, the Cabinet shall resign en masse.
Article 71
In the cases mentioned in the two preceding Articles, the Cabinet
shall continue its functions until the time when a new Prime Minister
is appointed.
Article 72
The Prime Minister, representing the Cabinet, submits bills, reports
on general national affairs and foreign relations to the Diet and exercises control and supervision over various administrative branches.
Article 73
The Cabinet shall, in addition to other general administrative functions, perform the following functions: (1) Administer the law faithfully; conduct affairs of state. (2) Manage foreign affairs. (3) Conclude
treaties. However, it shall obtain prior or, depending on circumstances subsequent approval of the Diet. (4) Administer the civil service, in accordance with standards established by law. (5) Prepare
the budget, and present it to the cabinet orders in order to execute
the provisions of this Constitution and of the law. However, it cannot include penal provisions in such cabinet orders unless authorized
by such law. (7) Decide on general amnesty, special amnesty, commutation of punishment, reprieve, and restoration of rights.
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Article 74
All laws and cabinet orders shall be signed by the competent Minister
of State and countersigned by the Prime Minister.
Article 75
The Ministers of State shall not, during their tenure of office, be
subject to legal action without the consent of the Prime Minister.
However, the right to take that action is not impaired hereby.
CHAPTER VI
JUDICIARY
Article 76
The whole judicial power is vested in a Supreme Court and in such
inferior courts as are established by law. 2) No extraordinary tribunal shall be established, nor shall any organ or agency of the
Executive be given final judicial power. 3) All judges shall be independent in the exercise of their conscience and shall be bound only
by this Constitution and the laws.
Article 77
The Supreme Court is vested with the rule-making power under
which it determines the rules of procedure and of practice, and of
matters relating to attorneys, the internal discipline of the courts and
the administration of judicial affairs. 2) Public procurators shall be
subject to the rule-making power of the Supreme Court. 3) The
Supreme Court may delegate the power to make rules for inferior
courts to such courts.
Article 78
Judges shall not be removed except by public impeachment unless
judicially declared mentally or physically incompetent to perform
official duties. No disciplinary action against judges shall be administered by any executive organ or agency.
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Article 79
The Supreme Court shall consist of a Chief Judge and such number
of judges as may be determined by law; all such judges excepting
the Chief Judge shall be appointed by the Cabinet. 2) The appointment
of the judges of the Supreme Court shall be reviewed by the people
at the first general election of members of the House of Representatives
following their appointment, and shall be reviewed again at the first
general election of members of the House of Representatives after
a lapse of ten (10) years, and in the same manner thereafter.
Article 80
The judges of the inferior courts shall be appointed by the Cabinet
from a list of persons nominated by the Supreme Court. All such
judges shall hold office for a term of ten (10) years with privilege of
reappointment, provided that they shall be retired upon the attainment of the age as fixed by law. 2) The judges of the inferior courts
shall receive, at regular stated intervals, adequate compensation which
shall not be decreased during their terms of office.
Article 81
The Supreme Court is the court of last resort with power to determine
the constitutionality of any law, order, regulation or official act.
Article 82
Trials shall be conducted and judgement declared publicly. 2) Where
a court unanimously determines publicity to be dangerous to public order or morals, a trial may be conducted privately, but trials of
political offenses, offenses involving the press or cases wherein the
rights of people as guaranteed in CHAPTER III of this Constitution
are in question shall always be conducted publicly.
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CHAPTER VII
FINANCE
Article 83
The power to administer national finances shall be exercised as the
Diet shall determine.
Article 84
No new taxes shall be imposed or existing ones modified except by
law or under such conditions as law may prescribe.
Article 85
No money shall be expended, nor shall the State obligate itself,
except as authorized by the Diet.
Article 86
The Cabinet shall prepare and submit to the Diet for its consideration and decision a budget for each fiscal year.
Article 87
In order to provide for unforeseen deficiencies in the budget, a
reserve fund may be authorized by the Diet to be expended upon
the responsibility of the Cabinet must get subsequent approval of
the Diet for all payments from the reserve fund.
Article 88
All property of the Imperial Household shall belong to the State.
All expenses of the Imperial Household shall be appropriated by the
Diet in the budget.
Article 89
No public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution
or association, or for any charitable, educational or benevolent enterprises not under the control of public authority.
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Article 90
Final accounts of the expenditures and revenues of the State shall
be audited annually by a Board of Audit and submitted by the Diet,
together with the statement of audit, during the fiscal year immediately following the period covered. 2) The organization and competency of the Board of Audit shall be determined by law.
Article 91
At regular intervals and at least annually the Diet and the people
on the state of national finances.
CHAPTER VIII
LOCAL SELF-GOVERNMENT
Article 92
Regulations concerning organization and operations of local public
entities shall be fixed by law in accordance with the principle of
local autonomy.
Article 93
The local public entities shall establish assemblies as their deliberative organs, in accordance with law. 2) The chief executive officers
of all local public entities, the members of their assemblies, and such
other local officials as may be determined by law shall be elected
by direct popular vote within their several communities.
Article 94
Local public entities shall have the right to manage their property,
affairs and administration and to enact their own regulations within law.
Article 95
A special law, applicable only to one local public entity, cannot be
enacted by the Diet without the consent of the majority of the voters
of the local public entity concerned, obtained in accordance with law.
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CHAPTER IX
AMENDMENTS
Article 96
Amendments to this Constitution shall be initiated by the Diet,
through a concurring vote of two-thirds or more of all the members
of each House and shall thereupon be submitted to the people for
ratification, which shall require the affirmative vote of a majority of
all votes cast thereon, at a special referendum or at such election as
the Diet shall specify. 2) Amendments when so ratified shall immediately be promulgated by the Emperor in the name of the people,
as an integral part of this Constitution.
CHAPTER X
SUPREME LAW
Article 97
The fundamental human rights by this Constitution guaranteed to
the people of Japan are fruits of the age-old struggle of man to be
free; they have survived the many exacting tests for durability and
are conferred upon this and future generations in trust, to be held
for all time inviolate.
Article 98
This Constitution shall be the supreme law of the nation and no
law, ordinance, imperial rescript or other act of government, or part
thereof, contrary to the provisions hereof, shall have legal force or
validity. 2) The treaties concluded by Japan and established laws of
nations shall be faithfully observed.
Article 99
The Emperor or the Regent as well as Ministers of State, members
of the Diet, judges, and all other public officials have the obligation
to respect and uphold this Constitution.
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CHAPTER XI
SUPPLEMENTARY PROVISIONS
Article 100
This Constitution shall be enforced as from the day when the period
of six months will have elapsed counting from the day of its promulgation. 2) The enactment of laws necessary for the enforcement
of this Constitution, the election of members of the House of Councillors and the procedure for the convocation of the Diet and other
preparatory procedures necessary for the enforcement of this Constitution may be executed before the day prescribed in the preceding
paragraph.
Article 101
If the House of Councillors is not constituted before the effective
date of this Constitution, the House of Representatives shall function as the Diet until such time as the House of Councillors shall
be constituted.
Article 102
The term of office for half the members of the House of Councillors
serving in the first term under this Constitution shall be three years.
Members falling under this category shall be determined in accordance with law.
Article 103
The Ministers of State, members of the House of Representatives,
and judges in office on the effective date of this Constitution, and
all other public officials who occupy positions corresponding to such
positions as are recognized by this Constitution shall not forfeit their
positions automatically on account of the enforcement of this
Constitution unless otherwise specified by law. When, however, successors are elected or appointed under the provisions of this Constitution, they shall forfeit their positions as a matter of course.
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THE CONSTITUTION OF JAPAN (NOVEMBER 3, 1946)
I rejoice that the foundation for the construction of a new Japan
has been laid according to the will of the Japanese people, and
hereby sanction and promulgate the amendments of the Imperial
Japanese Constitution effected following the consultation with the
Privy Council and the decision of the Imperial Diet made in accordance with Article 73 of the said Constitution.
Signed:
Hirohito, Seal of the Emperor, This third day of the eleventh month
of the twenty-first year of Showa (November 3, 1946).
Countersigned:
Prime Minister and concurrently Minister for Foreign Affairs
Yoshida Shigeru,
Minister of State
Baron Shidehara Kijùrò,
Minister of Justice
Kimura Tokutarò,
Minister for Home Affairs
Òmura Seiichi,
Minister of Education
Tanaka Kòtarò,
Minister of Agriculture and Forestry
Wada Hiroo,
Minister of State
Saitò Takao,
Minister of Communication
Hitotsumatsu Sadayoshi,
Minister of Commerce and Industry
Hoshijima Jirò,
Minister of Welfare
Kawai Yoshinari,
Minister of State
Uehara Etsujirò,
Minister of Transportation
Hiratsuka Tsunejirò,
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Minister of Finance
Ishibashi Tanzan,
Minister of State
Kanamori Tokujirò,
Minister of State
Zen Keinosuke
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96
2.2
Administrative Law
A
I. Prior to the Meiji restoration the three powers of the state were
not separated; legislation, executive, and judicature were combined to
form the administration. The first measure of the new regime to organize the apparatus of managing state affairs was the creation of the
‘three offices’ on 3 January 1868.1 This order did not give specific
directives for action and, therefore, an edict shortly afterwards ruled
that in all domains the commendable practices and worthy laws of
the Tokugawa government were to be maintained without change.2
When, in February 1868, the three offices were subdivided into eight
secretariats, spheres of responsibility appeared as in the seven sections
four weeks before, which are disregarded here because of their shortterm existence. The head of the administration (sòsai ) decided all
general matters, his office was the Head Secretariat. The other secretariats dealt with Shintoism, domestic, foreign, military, financial, judicial,3 and organizational4 affairs. The senior councillors controlled the
work of the secretariats and resolved problems, the junior councillors
executed the business of the individual secretariats. This short-lived
system did not see the separation of powers.
For the first time the ‘Document on the Government System’
(seitaisho) of 17 June 1868 ordered the separation of powers: legislation,
executive, and judicature.5 Simultaneously the government was reor1
Imperial Restoration Order, see chapter ‘Constitutional Law’.
R. Ishii, Meiji bunkashi, 2, hòseihen (Cultural History of the Meiji Era, vol. 2,
Legal System), 1954, p. 64. Adapted translation by W.J. Chambliss, Japanese
Legislation in the Meiji Era, 1958, p. 80. K. Hosokawa, Nihon kindai hòseishi (A
History of Modern Japanese Law), 1961, pp. 12, 61.
3
Keihòjimu, literally ‘criminal law affairs’. The business was criminal justice, that
means prosecution, investigation, proceedings, and judgement in criminal cases; civil
cases were not matters of interest or importance to the state. The judicial secretariat was one part of the predecessors of the Ministry of Justice.
4
Seidojimu, literally: affairs concerning the system. ‘System’ means the structure,
organization, and institutions of the state. Because that is regulated by laws and
ordinances the duty of the responsible secretariat was legislation. It may also be
called ‘Legal Secretariat’.
5
See chapter ‘Constitutional Law’. A detailed report on the administrative system
in the first twenty years of the Meiji era has been given by A. Satò, Gyòsei seido
(Administrative System), in Kòza Nihon kindai hò hattatsushi (Lectures on the History
of the Development of Modern Japanese Law), vol. 9 (1960), pp. 63–125.
2
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97
ganized in the form of the dajòkan, type I, with seven offices (kan),
one of which was the Executive Office ( gyòseikan) whose general
responsibility was to carry out all administration. Its function could
not clearly be kept apart from that of the giseikan which was destined for legislation,6 and because of the fact that the separation of
powers under the seitaisho was not completely achieved—due to the
growing dominance of the executive, the giseikan was soon abolished.7
On 15 August 1869 the Executive Office vanished, together with
type I of the dajòkan, after an existence of fourteen months. It was
succeeded by type II8 of the dajòkan, under which six ministries (shò)
were set up for the following fields of activity: domestic,9 finance,
military, judicial, Imperial household, and foreign affairs. Domestic
affairs were handled by the minbushò (Home Ministry or Ministry of
the Interior), this was modelled on an ancient code. The area of
responsibility was extended to the superintendance of the domains,
and actually the Ministry had to deal with family registers, postal
affairs, mining, and the relief of poor and old people. On 16 September 1869 four bureaus—taxes, control over accounts, commerce and
mining—were transferred from the Finance Ministry to the Home
Ministry.10 But this ministry did not appear as a distinct department
because the minister and the vice-minister were at the same time
minister and vice-minister respectively of the Ministry of Finance
(òkurashò), with the effect that the two ministries seemed to be one
and the same, the power of which became so immense that it gained
dominance in the government and the balance with the other ministries was destroyed. Due to growing criticism of this situation, the
6
See chapter ‘Constitutional Law’.
Its successors were the kògisho and shùgiin, see chapter ‘Constitutional Law’.
8
For the three types of the dajòkan see chapter ‘Notes on the Staff of the Ministry
of Justice’.
9
Minbushò. Similar departments had existed also in the foregoing systems: naikokujimuka (10 February–13 March 1868), naikokujimukyoku (13 March–11 June 1868),
minbukan (19 May–15 August 1869). The naikokujimukyoku had no immediate successor, its duties had been taken over by the Accounting Office (kaikeikan); there were
two bureaus for postal services and for civil administration, the last of which did
not take up any activity. However, the increasing negotiations with the newly created prefectures called for an ordinary office with exclusive responsibility, and therefore the minbukan (Civil Office) was set up as the last office of the dajòkan type I.
Its duty was to control and make decisions concerning authority of the prefectures,
family registers, postal services, bridges, ways, water facilities, cultivation of land,
production, relief of the poor and old people. Satò (note 5) at 69.
10
Satò (note 5) at 69 and 78 note 12.
7
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separation of the two ministries was debated and finally accomplished,
after a compromise had been reached regarding the competing claims
of the clans for government posts and influential responsibilities. On
6 August 1870 the personal union of the ministers and vice-ministers
ended. The now distinct minbushò was responsible for family registers,
taxes, postal affairs, mining, and relief of the poor and old people.
The government itself managed financial affairs, and the authority
of the Ministry of Finance was reduced to an accounting institution.11
When on 13 September 1871 type III of the dajòkan system was
established the minbushò no longer existed. Its fields of business were
assigned to the Ministry of Finance and the Ministry of Public Works
(kòbushò). The reorganization of the government followed the abolition of domains and foundation of prefectures throughout the country. Thereby the Finance Ministry gained an important and powerful
position, and its first minister, Toshimichi Òkubo (Satsuma clan),
became the central figure in the government.
Two and a half years afterwards, on 10 November 1873, the
Home Ministry (now called naimushò) was set up anew; it existed
until the end of the dajòkan system in 1885 and continued operating
under the cabinet (naikaku) system until the end of 1947. Under the
Office Regulations for the Home Ministry (naimushò shokusei oyobi jimu
shòtei ) of 10 January 1874 offices, bureaus, and sections were founded
for the promotion of industry, police, family registers (census), post, public works, land survey, and internal business (records, general affairs).12
In the political structure the naimushò had a stronger position than
the preceding minbushò.13 The idea of setting up the new Home
Ministry may be traced back to the struggle within the government
regarding a planned invasion of Korea. The opposing councillors,
Òkubo among them, argued that the inner administration must firstly
be reorganized and consolidated. They were able to thwart the invasion plan and carry out their objective.
Toshimichi Òkubo was Home Minister from 29 November 1873
until his assassination on 14 May 1878. He extended his ministry,
giving it greater responsibility and power accordingly. In 1876 there
were sixteen secretariats, sections and bureaus with 6,787 officials,
employees and workers; among the fields of activity were census,
11
12
13
Satò (note 5) at 73.
Some duties were taken over from other ministries.
A. Satò (note 5), pp. 82–88.
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99
police, public works, accounts, promotion of industry, post (by far
the highest number of personnel), public health and land survey.
Moreover, the ministry kept a branch office on the Ryùkyù islands.14
The third type of the dajòkan was the product of several experiments
in the form of government, and it proved to be a durable consolidation which lasted from 1871 to 1885.15
II. Regarding domestic affairs, after the restoration the government’s
immediate task was to gain control over the feudal domains, the
number of which exceeded 270. First, the regions which had been
controlled by the bakufu directly were confiscated and garrisoned, the
garrison (chindai ) being responsible also for the civil administration.
A few months later, in September 1868, the chinshòfu (literally: office
of the pacifying general), successor to the Edo (= Tokyo) garrison,
became the controlling authority of 13 districts in the Kantò region
and exercised civil administration. These offices were short-lived, and
the supervision of the regional areas, which were organized step by
step into urban and rural prefectures, fell finally to the central home
department under its various denominations.16 The system of regional
and local administration in the early years of the Meiji era was not
the same throughout.17 Generally, a prefecture or domain was administered by a governor (chiji )18 whose duties were defined as “to foster
14
A. Satò (note 5), p. 92.
In this final type of the dajòkan the inner circle or highest ruling body consisted
of the prime minister or chancellor (dajòdaijin), the ministers of the left and of the
right, and occasionally an adviser to the cabinet (naikakukomon)—from 1873 to 1885
there were only three of them, each on separate occasions—, and several state
councillors (sangi ) who had to deliberate and decide on important affairs. The heads
of the ministries were not members of the inner circle, but the custom soon arose
that a minister (kyò ) was appointed state councillor (or vice versa) and served in
both positions simultaneously. Such connections were finally discontinued from 1885
(establishment of the cabinet system).
16
Ishii/Chambliss (note 2) at 155 and 204 respectively. When there was an interval in the work of the home departments (see above) the Ministry of Finance was
responsible.
17
See the detailed description in Ishii/Chambliss (note 2) at 151–163/198–213).
18
This denomination was connected with the circuit. At first there were fu, han,
and ken, [in Wm.T. de Bary (ed.), Sources of Japanese Tradition, 1959, p. 646
seitaisho art. XI, they are called large cities, clans, and Imperial prefectures], correspondingly the governors were chifuji, chihanji, or chikenji, literally ‘having to do with
the affairs of the fu, han, and ken’ respectively. Reorders within the words also
appeared: fuchiji, hanchiji, kenchiji. When the feudal lords = chiefs of the domains
(daimyò) returned their territories and census registers to the Crown (hanseki hòkan)
in 1869 they were made chihanji in their domain which were treated as an equivalent
15
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the welfare of the people, promote production, encourage moral education, collect taxes, assess public labour, administer justice, and to
command the prefectural militia”.19 The prefectural office had four
separate sections: (1) general affairs, (2) civil court, (3) revenue, (4)
finance. In 1875 sections for education and for promoting industry
were added. The prefectures were subdivided into local units. In the
early years the number of administrative areas on the prefectural level
varied remarkably due to the continual reorganization. In 1868 there
were 10 fu (urban prefectures), 277 han (domains), and 23 ken (rural
prefectures).20 In September 1871, after the abolition of the domains,
the numbers were 3 fu21 and 306 ken, the latter of which was reduced
to 72 ken a few months later; it continued to fall to 43 by 1888.
Local administrative units which dealt with matters on the spot
existed before the Meiji restoration. Forms of self-government were
widely apparent. The Meiji government did not immediately change
the old system, but in order to gain an overall view of the population,
the prefectures were subdivided into districts (ku, in rural prefectures:
gun) with an official (kochò) and his assistant ( fuku kochò) whose first
duty was to take an itemized census of the population in their district.22 On 15 May 1872 the former local officials were renamed kochò.
This term now meant the headman of the town or village responsible
for all affairs there.23 Initially, the kochò was considered the general
representative of the villagers or townsfolk. Owing to the extent of
to the prefectures. On 29 August 1871 the clan domains (han) were reorganized into
prefectures (ken) and the position of chihanji became obsolete. The governors of the
rural prefectures were renamed kenrei in December 1871. Since 1886 the governors
(or prefects) of the urban and rural prefectures have been uniformly called chiji.
19
Ishii/Chambliss (note 2) at 153/202. The quotation comes from the Document
on the Governmental System (seitaisho) the wording of which is usually abbreviated
when repeated in literature, e.g. in the books named in chapter ‘Constitutional Law’
note 6. An additional article regulated the division of the dajòkan into seven offices (kan)
and the regional administration into fu, han, and ken, K. Fukiji/M. Inoue (ed.), Nihonshishiryò enshù- ( Japanese History—Excercises in Historical Materials), 1956, p. 330.
20
R. Sugii, Fu-han-ken taishòhyò (Systematic Table of Prefectures and Domains),
in: Nihon kindaishi jiten (Dictionary of Modern Japanese History), ed. by the Kyoto
University, 1958, p. 671. But compare the numbers given by T. Sakamoto (ed.),
Nihonshi shòjiten (Small Dictionary of Japanese History), 1960, appendix p. 111.
21
The number of fu had already been reduced to three in January 1870.
22
The kochò and fuku kochò were installed in addition to the present local functionaries. This system was introduced by the Family Register Law (kosekihò) of 23
May 1871. K. Hosokawa, (note 2) at 69.
23
In reality the terminology was somewhat complicated and not uniform. The
districts themselves were large and subdivided into smaller ones which consisted of
several towns and villages The head of a large district was called kuchò, the head
of a small one kochò like the village head. K. Òishi; kochò and daiku, shòkusei, in Nihon
kindaishi jiten (note 20), pp. 200 and 344.
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101
administrative business he had to carry out he gradually assumed
the character of a state official, and this led to a change in his role
as the representative of the villagers which depended on the trust of
the people.
Home Minister Toshimichi Òkubo became aware of weak points
concerning local administration. His criticism can be seen in a memorial which he presented to the dajòkan on 11 March 1878. The memorial related to the following matters:
(i) The forms of local government. Òkubo proposed for the prefectures
and cities (and the municipal officials) to function together. That is
to say they were to function simultaneously as controlled administrative divisions and independent communities. Consequently
there should be a clear distinction between central and local
expenditures. The towns and villages should remain independent.
(ii) Accordingly, the plan advocated that an exact distribution of
power be made between
– the governors, the heads of rural districts ( gun) and the heads
of cities (shi ) on the one side and
– local government on the other side, the dual nature (see above)
should also be taken into consideration.
(iii) The central government should grant a greater degree of autonomy to local governments by allowing them to manage their
own affairs concerning the population and the execution of their
civil rights under a forthcoming law for local assemblies. Òkubo
was of the opinion that these assemblies should concern themselves chiefly with budgetary matters.
(iv) The memorial recommended enacting a law on the levy of district taxes (minpi ) in order to create a standard procedure and
to strictly define the terminology and content of the different
types of revenue.24
After Òkubo’s death on 14 May 1878 Kowashi Inoue, chief of the
legislative bureau of the government, went over the items and drafted
the following rule:
– Law Governing the Organization of Rural Districts, City Wards,
Towns and Villages ( gun-ku-chò-son hensei hò ),
24
Details including the three new laws in Ishii/Chambliss (note 2) at 163–177/
213–230.
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– Prefectural Assembly Regulations ( fukenkai kisoku),
– Local Tax Regulations (chihòzei kisoku).
These drafts were examined by the Standing Conference of the
Regional Head Officials25 and the Senate (genròin) and became known
as the Three New Laws or Three Great New Laws (sanshinhò or
sandaishinhò ).
1. The Law Governing the Organization of Rural Districts, City
Wards, Towns and Villages, consisting of only six articles, was enacted
on 22 July 1878. It clarified and straightened out uncertainties of
the system.
(i) Districts, wards, towns, and villages are subdivisions of an urban
or rural prefecture.26
(ii) The names of districts, towns, and villages remain as before.
(iii) In a district in which the area is too large and the administration inconvenient parts of it should be marked off and thereby
several districts formed.
(iv) The three urban prefectures,27 the five seaports,28 and other areas
suffering from overcrowding shall be one district each.
(v) One district headman ( gunchò ) in each district, one headman of
the ward (kuchò) in each ward is to be appointed; in the case of
small districts one headman for several districts may be installed.
(vi) In each town and village one mayor (kochò ) shall be installed. A
single mayor may also be appointed for several towns or villages. The head of a city ward may serve concurrently as the
head of the towns and villages located within the boundary of
his territorial jurisdiction.
On 2529 July 1878 the government promulgated the decree no. 32:
Service Regulations for Prefectural Officials ( fukenkan shokusei ) which
replaced the rules of 1875. A section of the Regulations was headed
25
See chapter ‘Constitutional Law’.
Terminology: District (gun) = administrative unit below the rural prefecture, English:
county, German: Landkreis.—Ward (ku) = urban district.—Town (chò) = county
town, German: Kreisstadt.—Village (son) = country settlement smaller than a town.
The words ‘town’ and ‘village’ were combined to chòson = a rural municipality.
27
Tokyo, Osaka, Kyoto.
28
Yokohama, Kòbe, Nagasaki, Niigate, Hakodate.—In harbour areas along the
coast harbour authorities (urayakuba) were established in addition to the regular
administration.
29
K. Hosokawa (note 2) at 68. R. Ishii (note 2), at 165, notes ‘24th day’.
26
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103
‘Outline of the Duties of kochò ’. These were (i) Display of laws and
orders within the town or village. (ii) Collection of the land-tax and
payment of various taxes. (iii) Family register. (iv) Registration of real
estates, buildings, ships, pledges, and endorsement of bills of sale. (v)
Registration of title deeds. (vi) Report to the police office in case of
missing children and foundlings, travellers who had become ill or
met an unnatural death, or in the case of other accidents. (vii)
Circumstantial report on natural calamities or persons who were currently in extremely serious distress. (viii) Circumstantial report on
dutiful children, virtuous women, and other people of good deeds.
(ix) Induce the children in the town or village to attend school. (x)
Registration of the seals of the people of the town or village. (xi)
Safe keeping of the account-books. (xii) Circumstantial report about
the pros and cons concerning the repair and preservation of river
ports, roads, dykes, bridges, and otherwise to be maintained at the
expense of the government or the prefecture.
2. The Prefectural Assembly Regulations, enacted also on 22 July
1878, consisted of 35 articles.30 There were predecessors to the regional
assemblies. After the Meiji restoration the official direction was to
establish assemblies in each fu, han, and ken: seitaisho art. V. People’s
assemblies were established in some domains (hangiin) which, after
the abolition of the domains and their transformation into prefectures,
became prefectural assemblies ( fukenkai ).31 In the beginning the assemblies sprouted out of any given order. At the meeting of the Standing
Conference of the Regional Head Officials (chihòkan kaigi )32 on 8 July
1875 the chairman stated that people’s assemblies (minkai—a collective term for the prefectural, regional, and local assemblies)33 had
been established in seven rural prefectures,34 and that assemblies of
the heads of the districts, wards, towns, and villages had been set
up in one urban and 22 rural prefectures, moreover, that such assemblies did not exist in two urban and 17 rural prefectures, and that
30
By an amendment of 5 November 1880 articles 36–49 were added.
R. Ishii (ed.), Shin hòritsugaku enshù kòza—Nihon hòseishi (New Practical Course
in Jurisprudence—Japanese Legal History), 1959, p. 195.
32
Consisting of the head officials (chiji, governors) of the three urban prefectures
Tokyo, Osaka, Kyoto, and the prefects = governors (kenrei ) of the, then, 59 rural
prefectures. Meiji bunka zenshù (Complete Collection About Meiji Culture), vol. 1:
Kenseihen (Constitutionalism), edited by Meiji bunka kenkyùkai (Society for the Study
of Meiji Culture), 1955, p. 257.
33
R. Ishii, loc. cit. (note 31).
34
Meiji bunka zenshù (note 32) at 313. Ishii/Chambliss (note 2) pp. 162/212.
31
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the situation in the remaining units was not apparent. The deliberations
of the Conference aimed at the formation of an opinion and the
answer to a question asked by the Emperor (government). The question to be discussed on that day and at the following meetings was:
We intend to establish regional people’s assemblies and have them decided
by public discussion on expenses defrayed by the people of the area and
matters concerning the public good there. Should a new assembly law
be enacted? Should the assemblymen be publicly elected or should the
assembly be provisionally formed of the headmen of the districts or wards
and mayors of the towns and villages? Which is suitable for the people
of today and of practical use? Advantages and disadvantages of the issue?35
The Conference discussed only prefectural and district assemblies and
presented drafts of
1/ a ‘Law for the Organization of Prefectural Assemblies Composed
of District and Ward Headmen’ (kuchò wo motte fukenkai wo okosu
hòan)36 and
2/ a ‘Law for the Organization of District/Ward Assemblies Composed
of Town and Village Headmen’ (kochò wo motte kukai wo okosu hòan).37
These headings illustrate the fact that the Conference did not think
much of public election of assemblymen, and, because not all the
district headmen and town mayors were elected by the people but
chosen by the authorities, it was not possible to argue that at least
the assemblymen had been elected by the people to their position
of headmen or mayors, and that, therefore, the membership of the
assemblies could also be regarded as publicly elected. The two drafts
would never be enacted. Most of the existing prefectural and district
assemblies were advisory in function; they had to give their opinion
on subjects put forward by the authorities.
Town and village assemblies were set up, where necessary, in several localities,38 previously founded assemblies continued the business
of the traditional village assemblies (mura yoriai ). The pre-Meiji village administration was not the same in all regions.39 Generally, there
35
Meiji bunka zenshù (note 32), at 312.
Meiji bunka zenshù (note 32), at 335–337.
37
Meiji bunka zenshù (note 32), at 337–338.
38
Ishii/Chambliss (note 2), at 162/212. Chambliss translates kaku chihò as “each
locality” which is inconsistent with the following statement that the number of these
local assemblies seems to have been very limited. Kaku also means ‘several, various’.
39
There is a large amount of literature. Concise description in: R. Ishii/W.
36
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105
were three administrative functionaries (murakata san’yaku or jikata
san’yaku or murayakunin) in a village: (i) nanushi = the headman and
representative of the village and the villagers,40 (ii) kumigashira = assistants to the headman,41 (iii) hyakushòdai = controller.42
These local self-governing authorities survived the restoration, and
with them also the òjòya (literally: great headmen) who supervised a
number of villages. But in May 1872 the former village officials lost
their titles and were combined in the system of kochò and fukukochò
(see above); it seems that some òjòya, whose positions were totally
abolished, were subsequently used as district heads.
Apart from the said functionaries, the village assembly (mura yoriai )
was a feature of the autonomous state of the village. The village had
begun to grow as a self-governing unit in the 15/16th century when
the type of feudalism arose which characterized the society for almost
300 years.43 To retell the history of the village assembly would be
outside the scope of this book. After the Meiji restoration the existing assemblies continued to deliberate and decide on matters regarding
the concern of the villagers, such as distribution of water, quota of
Chambliss (note 2), p. 156 et seqq./205 et seqq.; R. Ishii (note 31), pp. 185–190;
H. Befu, Village Autonomy and Articulation with the State, in J.W. Hall and
Marius B. Jansen (ed.), Studies in the Institutional History of Early Modern Japan,
1968, p. 301 et seqq.; K. Nakada, Mura oyobi iriai no kenkyù (Study of the Village
and the Common), 1949 p. 16 et seqq.—chapter 2 of which ‘Meiji shonen ni okeru
mura no jinkaku’ (Character of the Village in the Early Meiji Years) was taken from
K. Nakada, Hòseishi ronshù (Collected Treatises on Legal History), vol. 2, 1938, pp.
991–1106. Generally useful is Kyòdoshi jiten (Dictionary of Local History), edited by
the Òtsuka Historical Society, 1957, at the relevant headwords.
40
The village (mura or sonraku) was an artificial person, not completely but closely
resembling the co-operative society (Genossenschaft) of the Germanic law, and, as
such, a virtually autonomous unit. At the same time the village was the entirety of
the villagers. The distinction of these two characteristics had legal implications as
to the charge of the headman. There were nanushi also in the towns (machinanushi ).
In the western part of Japan (kansai ) the nanushi was called shòya. In many places
the nanushi was elected or nominated by the people.
41
Literally ‘group head’, i.e. head of a five-family neighbourhood (goningumi), the
lowest basis of communal government. As a town or village official he was also
called Toshiyori. There were one to five kumigashira; they were elected.
42
Literally ‘farmers’ deputy’. He was also called yokome = literally ‘glancing sideways’. Elected by the farmers he had to control the village administration conducted
by the headman and his assistants. In large villages there were two or three of them.
43
The term ‘feudalism’ (hòkensei ) has been much disputed among scientists with
regards to content, definition, and comparison to feudalism in Europe. See J.W. Hall,
Feudalism in Japan—A Reassessment, in Hall and Jansen (ed.), Studies in the Institutional History of Early Modern Japan, 1968, pp. 15–51. C. Steenstrup, A History
of Law in Japan Until 1868, 1991, p. 108 et seq. R. Ishii (note 31), pp. 29–34.
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the land-tax which was the debt of the village as a whole, calculation
of the village expenses, and contracting of village loans. Moreover,
the assembly framed village laws and took notice of proclamations
and relevant ordinances.
The Three New Laws did not deal with assemblies on the lower
administrative level but restricted themselves to regulating the prefectural
assembly.44 The members of that assembly were elected for a term
of four years; every rural and urban district ( gun and ku) was to elect
five members or less according to its size. Entitled to vote were male
persons of 25 years or older who were permanent residents of the
district and had been paying a land-tax of at least 5 ¥ within the
prefecture—excepted were mentally ill, or severely sentenced, or
bankrupt persons. The requirements for eligibility were, in general,
the same but the candidate needed to have been living in the prefecture for more than three years and to have paid a land-tax of at
least 10 ¥; persons who were employed as government officials or
teachers were not eligible. The voter had to write his name on the
ballot. The functions of the assembly were somewhat limited. The
members had to deliberate on the budget which was defrayable out
of local taxes, and on the method of collecting local taxes. Resolutions
concerning the expenditure of local taxes required the approval of
the governor, who was obliged to make a detailed report to the
Home Minister and ask for instructions if he considered a resolution unfit to become legally binding. All in all, the rights of the
assembly were weak compared with the power of the governor.
3. The Local Tax Regulations of 22 July 1878 combined the present prefectural tax ( fukenzei ) and district tax (minpi)45 to form a ‘local
tax’ (chihòzei ). There were three categories of local tax: (i) a tax not
to exceed one fifth (changed to one third in 1880) of the land-tax
(chiso) which was a central government revenue, (ii) a business tax
(eigyòzei ) and a tax on miscellaneous profits (zasshuzei ),46 (iii) a household
tax (kosùwari ). Thereby the prefectural tax yield was circumscribed.
Moreover, the Regulations determined the items of expenditure out
of the local tax yield47 and the budgeting procedure. Many items of
44
For further rules see below.
Literally ‘people’s expenses’ (in contrast to kanpi = ‘government’s expenses’).
46
Those two types of taxes and their limitations were determined in a separate
decree.
47
Twelve items were listed: police; construction and repair of river ports, roads,
embankments, and bridges; prefectural assembly expenses; prevention of contagious
45
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107
expenditure concerned governmental affairs and, in general, the
Regulations laid stress on the character of the prefecture as an administrative section. This reflected the fact that the separation of central
and local business was nothing but a radical push forward on the
road to imperialism.48 The objects of taxation and the tax rates concerning the business tax, the tax on miscellaneous profits, and the
land-tax rates depended on government rules, while the household
tax was determined by the consent of the people—however, the autonomy of the wards, towns, and villages was restricted in that the people could not help increasing this tax when circumstances demanded
a higher revenue. Altogether, the local tax came near to a state tax.
The ‘Three New Laws’ were completed by the Enforcement Regulations (gun-ku-chòson henseihò, fukenkai kisoku, chihòzei kisoku shikò junjo) of
22 July 1878 and some amendments.
(i) The Enforcement Regulations (henceforth abbreviated Enf Reg)
authorized the wards, towns and villages to open assemblies in accordance with local conditions, art. 4, a sign of autonomy. The rural
district ( gun) was not mentioned, it remained a mere regional administrative division.49
(ii) The original draft of the Enf Reg had provided that each town
and village should have a head official to act as the general deputy
(sòdai ) for the inhabitants of his community, and be allowed to conduct his official duties more independently than the average governmental officer. When the draft was discussed in the Senate this
body disapproved of the expression ‘general deputy’ because this
disease; public schools within the prefecture and supplementary grants to elementary schools; construction and repair of government buildings in the rural divisions
and city wards; salaries, travel, and office expenses for officials of the rural divisions and wards; hospitals and relief agencies; seashore offices and sea rescue operations; circulation and posting of notifications; promotion of industry; and salaries
for the town and village heads and their subordinates as well as funds for their
office expenses. W.J. Chambliss (note 2) at 222.
48
S. Endò, Zaisei seido (Financial System), in N. Ugai et al. (ed.), Nihon kindaihò
hattatsushi (History of the Development of Japanese Modern Law), vol. 4, 1958, pp.
1–94 [86].
49
The gun was a local administrative organ between the prefecture and the towns
and villages. In 1875 there were 720 gun; most of them became a self-governing
unit in 1888. By means of abolition and amalgamation their number decreased
from time to time and their function was more and more limited. In 1921 the gun
system was discontinued as a regional governing organization under law no. 63,
but the term gun survived as a geographical denomination (district). Art. 259 of the
Local Autonomy Law (chihò jichihò) of 1947 regulated the procedure in case of changing boundaries or denominations, founding or abolishing a gun.
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would give the head official the chance to advocate the interest of
the inhabitants first and put the government’s concern last. Finally,
the head official was defined as rijisha of his town or village, i.e. a
functionary, a person engaged in administrative service.
(iii) The responsibility of the local assemblies had not been described
by the Law Governing the Organization of Rural Districts, City
Wards, Towns, and Villages nor by the Enf Reg. As previously mentioned, some assemblies already existed in earlier times. The first relevant Meiji legislation50 proscribed the participation of the inhabitants
in signing a contract concluded by the head official under which he
borrowed money or grain, sold commonly owned land or buildings,
or initiated public works within the community. However, this only had
to be carried out by sixty percent or more of the community’s real
estate owners in their capacity as such and not as members of the
assembly. Therefore, the said regulations were not connected with any
system of public assemblies. Yet, in the wake of the Three New Laws
and the Enf Reg, the Home Ministry ordered on 11 November 1878
that the business named in the Regulations of 17 October 1876 (see
above) was assigned to the existing assembly, which grew into the
position of the general deputy of the inhabitants.
The government, pursuing the policy to shift responsibility in local
affairs to the localities themselves, recognized the significance of the
ward, town, and village assemblies and made it compulsory for each
community to set up an assembly. Under the Ward, Town, and
Village Assembly Law (ku-chò-son kai hò ) of 8 April 1880 the village
assemblies (murayoriai ) of pre-Meiji times were maintained on a reduced
scale insofar as the former meeting of all farmers51 was replaced by
the meeting of elected deputies. The authority of the assembly was
restricted by the provision that the sanction of the governor of the
prefecture was required for the assembly’s regulations concerning the
procedure for deciding on public affairs, the collection of taxes, and
disbursement of expenditures. Moreover, the head official of the
50
Regulations for the Rural Districts, Towns, and Villages Relating to Public
Loans of Money and Cereals, to the Disposition of Common Property, and to the
Commencement of Construction Works (kaku ku-chò-son kinkoku kòshaku kyòyòbutsu toriatsukai doboku kikò kisoku) of 17 October 1876. Extracts and explanation in K. Nakada
(note 39), 1949, at 9, 145, 147.
51
Generally, only the farmers who were heads of an independent household and
registered in the census register were members of the assembly. But regionally the
circumstances differed considerably. K. Nakada (note 50), at 12, 136 et seq.
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109
ward, town, or village who was responsible for the execution of the
assembly’s decisions was empowered to delay enforcement pending
appeal to the governor for instructions. The governor could suspend
the actions of the assembly if he considered them unlawful. The
assembly system was only a short step on the road to democracy.
(iv) Amendments to the Prefectural Assembly Regulations were
decreed in 1879, 1880, and 1881. The most important of them was
the revision of 8 April 1880 by which, among other things, the power
of the assembly was strengthened. If the assembly protested about
the statement of accounts direct communication with the Home and
Finance Ministers was allowed; the assembly, in the name of the chairman, could submit a report to the said ministers immediately. Furthermore, the amendment provided for measures in order to secure the
attendance of assembly members at the sittings. The amendment of
14 February 1881 brought about certain changes in the relationship
between the assembly and the governor which enabled him to dispute
an assembly resolution and ask for the decision of the government.
(v) In April 1880 the Local Tax Regulations were also revised.
The main points concerned the establishment of a reserve fund, and
the power of the Home Minister to levy taxes in accordance with the
previous year’s budget if the local assembly had not deliberated or
its resolution had not met the governor’s approval. The construction
and repair of prefectural offices were added to the items to be paid
for by local taxes, this was also the case for prefectural prisons with
the addition of operational expenses.
(vi) Shortly after the enactment of the Three New Laws, namely
on 25 July 1878, the dajòkan laid down the Regulations for the
Organization of Prefectural Government ( fukenkan shokusei ) by which
the powers of the governor were determined. He was authorized to
exercise full administrative control over his territorial jurisdiction, to
enforce laws and government orders, and, when necessary, to proclaim
enforcement regulations for their execution. Several cases were mentioned in which he had to report to the government, additionally
the Prime Minister (dajòdaijin) and the respective ministers had the
right to cancel measures or proclamations of the governor if they
contravened the laws and orders of the central government. In many
respects the governor was supervised by the dajòkan. However, while
previously he was entitled to veto only assembly resolutions concerning
the expenditure of local taxes, he was now vested with a general
veto power over all assembly resolutions.
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The organization under the Three New Laws, the amendments
and collateral laws, was intended to be complete and perfect and
indeed seemed to be so. However, weak points soon became noticeable, especially concerning the towns and villages and their assemblies. While the prefectural assemblies had a well-defined competence,
the town and village assemblies were practically left without regulations, since up to now they had always toed the line. The situation
was that the office of the headman, which also lacked an organization-like structure, incurred disorder. Due to this state of affairs the
enactment of regulations for the towns and villages and their assemblies became an urgent task.
One measure was the amendment (fifteen articles) of the Ward,
Town and Village Assembly Law on 7 May 1884 and, in addition,
the change in character of the headman from a publicly elected
functionary to an official appointed by the prefectural governor from
among three to five candidates elected by the local community. This
part of the so-called ‘17th year’s reform’52 was decreed by an order
of the government (dajòkan tasshi ) of 17 May 1884, which also introduced the system that one headman could be made responsible for
five towns/villages on average, and raised his salary.53
The amendment of the Law had the quality of a law corresponding
to that time ( fukoku). The function of the assembly was defined as
‘conferring and agreeing upon how the expenses of the ward, town,
or village54 should be defrayed, and the method of collecting con52
1884 was the seventeenth year of the Meiji era.
R. Ishii/W. Chambliss (note 2), at 340–341/409–410. T. Òshima, Chihò seido
(The Local Government System), in Kòza Nihon kindaihò hattatsushi (see note 5), p. 49
et seqq. [72–73]. The new provisions were caused by the fear that the publicly
elected and meagerly paid headman of a village consisting of 20 to 30 households—
those were numerous—could easily mix up his official duties with his private affairs,
especially as it was common to establish his office in his home. The reform aimed
at raising the efficiency of the administration.
54
The expenditures were defined by a parallel direction of the Home Ministry
as being the costs for (1) the head official’s office, (2) the assembly, (3) civil construction, (4) education, (5) sanitation, (6) relief, (7) disaster precautions, (8) police.
All other ventures were considered to be private and had to seek their funds from
levies privately agreed upon. In order to push ahead such civic, economic, or cultural undertakings beyond their own family or house a few townsmen or villagers
formed a group (kumiai ), the characteristic of which was partnership, co-operation,
and public spirit. In many places the group constituted a form similar to the ‘village within the village’ (buraku), a private association within the framework of a public corporation; Ishii/Chambliss (note 2) at 343/411. ‘Similar to’ the buraku means
that the groups were not the original buraku which was the term for the most lowly
people who carried out menial, dirty work, and were excluded from the community and lived in quarters on the fringes of the city, town, or village.
53
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111
tributions’. The other articles dealt with the right to vote and to be
elected, the chairman (the Law designated the headman of the community) and his rights with regard to the assembly, as well as his
responsibility in relation to the prefectural governor. Compared with
the old law, the authority of the governor was strengthened and the
self-government of the lower administrative units brought under
stronger control.
III. Early proclamations of the Meiji government had promised that
the people should partake in discussing the affairs of the state; the
Emperor had even determined that a national diet should be opened
in 1890. The politically interested people were eagerly expecting parliamentary participation in law-making, and the local assemblies,
though of limited influence, were regarded as experiments for a
national assembly. On the other hand there were also prestigious
statesmen who were inclined to slow down the development. Tomomi
Iwakura, Minister of the Right, in 1882 demanded that the prefectural
assemblies be dissolved. He felt that they were premature and would
destroy orderly progress by clearing the way for the people to transgress
their superiors and, additionally, to give origin to an idea of disrespect
for the central government.55 However, progress was not interrupted.
Hirobumi Ito’s study in Europe extended to a parliamentary system
and to local government.56 Since Japan had in principle already
decided in favour of a law reform on the model of continental
European law, and turned its attention especially to Prussian/German
conditions, Itò listened to lectures given by experts in Berlin, namely
professor Rudolf von Gneist and his disciple Albert Mosse, a judge
of the Berlin district court.
When Itò returned to Japan the amendments to the Three New
Laws reached the last phase of completion. But at the same time the
government had a revision of the system in mind. On the one hand
it was felt that some elements of the existing order were deficient;
the specific problem being the juxtaposition of the kochò as a government
official and the assembly as an organ of self-government, and for
expressing the people’s political will at the basic administrative level:
the chòson.57 On the other hand the constitution was to be prepared,
55
Ishii/Chambliss (note 2), at 342/411.
See chapter ‘Constitutional Law’, section V.
57
T. Òshima, Chihò seido (The Local Government System), in vol. 5 of the
‘Lectures’ cited supra note 5 (1958), p. 49 et seqq. [74].
56
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and the local government had to be brought into line with the forthcoming constitutional law.
A difference of opinion arose between the councillors Hirobumi
Itò and Aritomo Yamagata about the time of the introduction of
a new system of local government. Itò favoured relevant legislation
after the enactment of the constitution; Yamagata insisted upon a
reform prior to the promulgation of the constitution in order to make
the Japanese fit for partaking in national affairs and to make them
aware of the grave responsibilities of government. He argued that
local autonomy was the basis for constitutional government and a
permanent foundation for the State.58
Yamagata became Home Minister on 12 December 1883. His
predecessor Akiyoshi Yamada, in office since 21 October 1881, had
already commissioned the chief secretary Tamotsu Murata to draft
a law on town and village organization. The draft was completed in
May 1884 and presented to Yamagata who disapproved of it and,
in December, set up a Committee for the Investigation of the Town
and Village Law (chòsonhò chòsa iin) within the Ministry, and ordered
a new draft taking the Japanese and foreign legal systems into closer
consideration. This draft was presented in June 1885; it had been
modified several times and was finally called ‘Regulations Governing
the Organization of Towns and Villages’ (chòsonsei ). This draft was made
up of some changes in selected parts of Murata’s draft, which had
overstressed direct relations between the kochò and the inhabitants, and
because of that departed too far from the establishment of a structure
founded on a local assembly institution. Yamagata drove for regional
self-government and an arrangement of administration in unison or
‘power in harmony’ ( gòken). For this it was felt necessary that the
people’s opinion be divided by class.59 Ideas about this topic could
be found in Prussia where a class-system of franchise (tòkyù senkyosei ) and a system of honorary posts (meiyo shokusei ) were discussed as
a principle of parliamentarism, referring also to local government.60
About one year later the draft of the said regulations was given
to Albert Mosse who had informed H. Itò and the Japanese delegation
about German administrative law in Berlin (see above) and who was
58
Ishii/Chambliss (note 2) at 343/412. See here also for the following text.
T. Òshima (note 57) loc. cit.
60
This point of view was supported by the distinguished German scientist R. von
Gneist whose lectures Itò attended in Berlin.—C. Schmitt, Verfassungstehre
(Constitutional Theory), 1928, p. 313.
59
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113
engaged as an adviser to the Japanese government in 1886.61 Prior to
Mosse’s arrival the draft had been examined by Japanese officials, additionally the German adviser Hermann Roesler also gave his opinion.
Roesler was a scientist, Mosse a juristic practitioner. It was Mosse
who was entrusted with the elaboration of a local government system.
His first task was to draft the ‘Gemeindeordnung’ (law governing the
organization of towns and villages); the last Japanese draft was translated into English for him. Mosse suggested that a high ranking committee should first of all formulate an outline of the main points of
the project; that paper was—after deliberation in the Cabinet and
with the consent of the Emperor—to become the starting-point for
the reform. The committee (chihò seido hensen iin) was set up on 24
January 1887. Yamagata himself was the chairman, and three viceministers62 and Mosse were the members; in addition three secretaries
were employed. Mosse had to draw up the essentials of the local
government legislation.63 As he shared Yamagata’s opinion that the
local government should be regulated before the enactment of the
constitution and was, therefore, aware of the urgency, he presented
his draft within a week. The draft, after being modified by the committee, was approved by the Cabinet in late February under the title
‘General Plan for a Code on the Local Government System’ (chihò
seido hensen kòryò).64
Mosse, although preoccupied with other important work,65 was
commissioned to draft regulations for the cities, towns, and villages.66
61
Mosse arrived in Japan in May 1886 and stayed there until March 1890. A
collection of his letters to relatives in Germany is preserved in the Leo Baeck
Institute, New York. Part of them has been edited by S. Ishii, E. Lokowandt,
Y. Sakai under the title “Albert und Lina Mosse, Fast wie mein eigen Vaterland”
(Almost like My Own Fatherland), 1995.
62
Mosse (note 61) at 226–227; picture at 225.
63
See Ishii/Chambliss (note 2) at 343 et seqq./412 et seqq. for the course of
the reform work.
64
The committee was authorized to definitely determine the particular laws
needed according to the General Plan. Mosse (note 61) at 229.
65
Revision of the treaties, constitution, electoral law; Mosse loc. cit. at 227 et
seqq., letter of 21 February 1887. Subsequently many tasks were added, loc. cit. at
20, 271. Mosse regarded himself as a general dogsbody, loc. cit. at 203.
66
Mosse’s initial occupation in Japan had actually been to draw up regulations
governing the organization of the towns and villages starting from the last Japanese
draft—see above—; he used the German term ‘Gemeindeordnung’, loc. cit. at 125,
131, 134, 137 (letters of June and July 1886). However, this work progressed slowly
due to Mosse’s illness, insufficient information, communication difficulties, and the
break during the hot season.
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He wrote a code of 8 chapters and 162 articles in German67 and
submitted it in May 1887.68 The committee modified some details
and had the code split up into two laws, one for the towns and villages, and one for the cities. The two drafts were sent to the Cabinet
in September 1887, and to the Senate in November of the same
year.69 Some points concerning the regulations for the towns and villages were disputed in the Senate, but a compromise was reached.
By 1 February 1888 the revised draft was presented to the Emperor.
A few days later the Senate decided on the draft for the cities, which
had also undergone some changes. A notable difference from the
regulations for towns and villages was that the cities could not form
kumiai 70 for certain purposes.
The prefectural governors, who were asked for their opinion in
February 1888, requested that the execution of the legislation should
be postponed for one year. The two drafts were sanctioned by the
Emperor and promulgated on 25 April 1888, called ‘Regulations
Governing the Organization of Cities’ (shisei, below abbreviated
RegOC) and ‘Regulations Governing the Organization of Towns
and Villages’ (chòsonsei, below abbreviated RegOTV), including the
proviso that they were to be gradually enforced in each prefecture
after April 1889 in accordance with a detailed report by each governor who had to take the local conditions into consideration. Mosse
wrote explanations and comments on every chapter and article, this
helped to make the laws popular.71
At a glance, this legislation had to do with the character of the
said units as abstract and artificial persons, with municipal elections,
honorary posts, the right to establish bylaws, with assemblies and
their authority, executive organs, property, revenue and expenditure,
budget and supervision. A point of special significance was the possibility of amalgamation of towns and villages; this general direction
67
The title of the Japanese translation was jichi burakusei sòan (Draft Regulations
Governing the Organization of Self-governing Communities) and meant towns and
villages as well as cities and wards. In this context the term buraku differs from the
buraku as explained in note 54.
68
Mosse, loc. cit. at 262. The deliberations of the committee began in July and
were finished in the same month (Mosse, loc. cit. at 285).
69
The draft for the towns and villages consisted of 8 chapters and 138 articles,
the draft for the cities of 7 chapters and 132 articles.
70
See note 54.
71
In November 1889 Mosse remarked that the legislation had proved to be more
or less well established. Mosse (note 61) at 498.
administrative law
115
was favoured and standardized by the government under a directive
of the Home Ministry of 13 June 1888. Problems often arose with
amalgamation, usually concerning the property owned jointly by the
townspeople or villagers and the property owned by the town or village as an artificial person. Rules pertaining thereto had to be enacted,
and the same was necessary with regard to the buraku.72
In all, the new regulations partly denied the feudalistic village
structure and became a link in the chain of a modern administration
set-up, but at the same time partly took over the old structure and
checked the movement for political reform. The right of self-government was weak and the inner organization not democratic.73 The
amalgamation of towns and villages was achieved to a large extent:
within one year (1888–1889) the number of towns and villages
decreased from 71,314 to 15,820.74
The RegOC dealt with roughly the same matters as the RegOTV;
amalgamation was not provided for.
Mosse also drafted Regulations Governing the Organization of
Prefectures ( fukensei ) and Rural Districts (gunsei ).75 The course of legislation was, however, blocked in the Senate because certain members of it disapproved of granting autonomy to those units too early.
The Cabinet withdrew the drafts in December 1888. Yamagata,
who had pleaded before the Senate in vain, departed to Europe in
the same month, and during his absence (until October 1889) the
Home Ministry revised the drafts, to the effect that the provisions
about features of autonomy were almost totally eliminated and the
prefectures and districts continued to be pure sections of the state
administration. Then the drafts were passed by the several legislative organs and were promulgated as laws in May 1890.76
72
Note 54.
Detailed description in Ishii/Chambliss (note 2) pp. 348–353/416–424. M. Òshima,
Chihò seido (The Local Government System), in ‘Lectures. . . .’ (note 5), vol. 8, pp.
1–74.
74
Amalgamation of towns and villages had been practised on a smaller scale also
before the Meiji eighties. Ishii/Chambliss (note 2) at 350/420. T. Òshima (note 53)
at 81. Amalgamation meant unity in contrast to federation which also took place.
75
Mosse (note 61) at 354 and passim.
76
Mosse had left Japan in April 1890. It seems that he had not been involved
in the revision work while in February 1889 he judged the course of legislation to
be promising. Soon afterwards he noted that the legislation had not made any
progress. In October 1899 he mentioned that he had neither seen nor heard anything more of his drafts. Shortly before his departure he remarked that the fukensei and gunsei would soon be promulgated. Mosse (note 61) at 418, 421, 495,
505.—For details of the regulations see Ishii/Chambliss (note 2) at 356–363/426–434.
73
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In the prefectural organization there were an assembly and a council. The assembly, the regular sessions of which lasted no more than
thirty days, was opened every year in autumn. When necessary an
additional seven days’ emergency session could be held. The assembly
was empowered to decide on enumerated subjects mainly concerning
matters of finance and property. In addition, matters could be placed
within the competence of the assembly by a law or ordinance. The
council, consisting of the governor, two senior civil officials and honorary councillors, had the authority to decide on matters delegated
by the assembly, and, additionally, instead of the assembly on emergency measures when there was insufficient time to summon the
assembly. Other rights concerned the control of prefectural property,
construction work, the budget, and accounts. Moreover, the council
could express its views when consulted by the governor or a government
office. The administration of the prefectures was supervised by the
Home Minister. Important financial matters required the consent of
the Home Minister and the Finance Minister.
Similar to the Regulations Governing the Organization of Prefectures
were the Regulations Governing Rural Districts. Not only members
elected by the towns and villages formed the district assembly, but
also major landholders elected mutually among themselves. The rural
district council consisted of the district head and four honorary councillors. The matters to be dealt with by the council resembled those
of the prefectural council. Like the RegOC and RegOTV the regulations for the rural districts were not all enforced together at a
fixed date but according to political trends and local conditions. The
process dragged on for some years, the last step being the enforcement of the Regulations Governing the Organization of Prefectures
in Okinawa in 1909.
After some minor amendments the RegOC and the RegOTV
were repealed and new RegOC (shisei ) and RegOTV (chòsonsei ) enacted
on 7 April 1911. Though slightly modified in 1921 and 1926 the
new regulations remained in force until the reform after World War
II and, therefore, it is worth while to mention the main points of
them.77 Cities, towns and villages were now explicitly designated as
public corporations; the sphere of their functions and liabilities were
77
The following text up to the asterisk is taken literally from Chambliss (note 2)
at 545–546 because it is a good summary; adapted translation of Ishii’s work (note 2)
at 471–472.
administrative law
117
clearly determined; the designation of wards was left to Imperial
ordinance; residents were regarded as anyone having a residence in
the municipalities; the provisions relating to the rights of municipal
residents were more fully elaborated; and the restrictions on the number of city council members were removed. Electors were still divided
into three classes in the city and two in the towns though the way
they were divided was somewhat different. The restrictions on the
establishment of electoral districts were eliminated; the term of incumbency for municipal assembly members was set at four years; and
all assembly members had to stand for reelection every four years.
Voting was done by the single ballot system, and the voter was
required to make his own ballot. To be elected the candidate of
each class had to obtain more than one-seventh of the figure resulting from the division of the number of elective offices in each class.
The punitive regulations concerning elections were based on similar
regulations found in the Diet’s lower house election law. The city
assembly was permitted to delegate a portion of the items within its
competency to the city council; the municipal heads summoned,
opened, and closed the municipal assemblies, and it was possible for
a municipal assembly to be convened upon the demand of one third
of its members. The city council served as the city’s deliberative organ,
and the mayor was the city executive. In the appointment and dismissal of salaried municipal officials the municipal heads were allowed
to act according to their discretion; and the annual municipal budgets
had to be voted upon by the municipal assemblies one month prior
to the commencement of the fiscal year. The new municipal legislation
also spelled out in more detail the provisions concerning supervision
of the municipalities. But so far as the city was concerned the most
important change was that the mayor rather than the city council
became the city’s executive. Formerly the city council had exercised
general control over the city, had been the city’s representative and
had discharged the city’s administrative duties, while the mayor as
president of the council had only been encharged with the direction
and supervision of city affairs; however, as a consequence of the revision of the city regulations the mayor was given general control over
the city and he was made the city’s representative. The city council
on the other hand became the deliberative organ on an equal par with
the city assembly. The powers of the council entitled it to deliberate
upon matters delegated to it by the city assembly, to state its views
to the mayor on proposals which he submitted to the assembly, and
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to exercise jurisdiction over matters assigned to it by law and ordinance.
As in the past the council was composed of the mayor, his assistant
and the honorary councillors, although the latter were now chosen
by and from the city assembly.*
Also the Regulations Governing the Organization of Prefectures
were revised and enacted anew on 16 March 1899.78 The new regulations made quite clear that the prefecture was a juridical person; also
they made it explicit that the prefecture was an administrative division
of the state by declaring that, under the supervision of the central
government, the prefecture would dispose of public matters and those
affairs delegated to it by law, ordinance and custom. With respect
to the assembly, which was to be composed of members elected by
each electoral district, the new law perfected the provisions relating
to the assembly’s powers; it abolished the existing rural and urban
divisions of the Tokyo, Kyoto, and Osaka prefectural assemblies; it
repealed the former provision that restricted the opening of the regular assembly sessions to the autumn season; and it redefined a quorum so that this number was one half of the assembly members
rather than one third. The governor was given the right to prorogue
the assembly after having set a date for this action, and the Home
Minister was only allowed to dissolve the assembly after obtaining
the Emperor’s sanction. The number of honorary prefectural councillors was increased to six, and their powers were more fully described.
With respect to the governor, the new law was explicit in giving him
general control over, and making him the representative of, the prefecture. The governor was allowed to create, supervise, and discipline
municipal officials anywhere in the prefecture and to establish the
amount of their salaries, their travelling expenses and to determine
the way in which the allowances were to be granted. In the sphere
of prefectural finance the new law recognized the creation of a reserve
fund and a reserve stock of grain, and it permitted the collection of
rents and fees. In the levying and collection of prefectural taxes the
issuance of detailed regulations was deferred to Imperial ordinance;
likewise the allotment of taxes to the municipalities was left to the
determination of ordinances. A special account for the prefecture
78
For the same reason (note 77) the following text is taken from Chambliss
(note 2) at 547–548 [Ishii, loc. cit. at 473–474]. Chambliss says ‘rural division’ ( gun),
there is no difference in meaning to ‘rural district’.—This text and that marked
with note 77 give the reader hints at the former provisions.
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119
was authorized, and the report on final accounts had to be delivered at a regular session of the assembly two years after the accounts
had been closed. The Home Minister was vested with the power to
issue ordinances and to take measures necessary for the supervision
of the prefectural administration. Such in sum were the chief amendments, although the amendments of special importance were those
that perfected the provisions specifying the governor’s functions and
powers, and those that changed the election procedure for prefectural assembly members. Under the old indirect method of electing
assembly members each rural division assembly and city assembly
had combined with its respective council to conduct the balloting,
but by the new system the ballots for the assembly candidates were
cast directly by the qualified voters. The indirect system, adopted
originally to avoid the waste of time and money as well as the confusion and strife identified with the direct election system, had more
or less defeated its own purpose since it had caused over zealous
competition for the municipal assembly posts and had thus prevented
a sound development of local government. Therefore the change was
made in 1899 to the direct election system. To be an elector under
the new scheme of election, the individual had to possess these
qualifications: 1) be a resident of a municipality within the prefecture, 2) be qualified to vote in a municipal election, and 3) be a tax
payer who had paid within the prefecture at least three ¥ in direct
national taxes a year previous to the election. The qualifications for
candidates were almost the same as under the old law. And the voting procedure followed the single, anonymous ballot, the candidate
receiving a majority of votes being elected.*
The Regulations Governing Rural District Organization were also
revised in 1899 mostly in coincidence with the change in prefectural
organization. Details of importance dealt with changes of the election procedure for assemblies and councils. The right of the institution gun to exist was always being disputed, and after 1904 diet
members and the government attempted to have it discontinued.
The House of Peers objected, however, the rural district was finally
abolished under a law of 9 April 1921.79
IV. Parallel to the organizational regulations concerning local government, rules about office bearers or functionaries were introduced.
79
See also note 49.
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Since information on the executive in the self-government system
has been given above the following will concern the prefecture and
district offices.
1. The first authority charged with local administration—following the short-lived chindai within which military command and civil
administration were combined—was the similarly short-lived chinshòfu80 controlling an area limited to regions near Tokyo (Edo) and
to the north-east = 13 provinces from Suruga to Dewa (now Shizuoka
to Akita). The chief of the chinshòfu was the chinshò (Literally: pacifying general).81 In accordance with the ‘Document on the Government
System’ (seitaisho) there was a three-fold division of powers within the
office. The chief had final authority in all matters pertaining to the
area of his responsibility. Senior ( gijò ) and junior councillors (sanyo)
had legislative duties, and administrators (benji ) had to carry out other
business; their duty was to follow the practices shown by the Executive
Office of the central government (dajòkan) at that time in Kyoto.82
The highest official of an urban ( fu) or rural prefecture (ken) was
the governor (chi/fu/ji or chi/ken/ji ). The post of a vice-governor was
created in the rural prefectures, and senior and junior councillors
(daisanji and shòsanji ) were installed. The same posts, plus an additional vice-officer each, were also included in the urban prefectures.83
By 1871 the prefectural system had been uniform throughout Japan
and the in-house organization of the prefectural office completed. In
the following years several laws and ordinances regulated details of
competence and responsibility. The officials in the early Meiji era
were mostly selected from the lower samurai class.84 The prefectural
office (kenchò and fuchò) developed into a rather large apparatus, the
organization of which varied a little depending on locality and time
but generally there were the following posts:85
80
See supra II. The chinshòfu existed from 3 September to 2 December 1868;
Ishii/Chambliss (note 2) at 152–153/200–201.
81
The official was the court noble Sanetomi Sanjò.
82
The dajòkan’s administrative authority covered the territory west of Suruga. When
the chinshòfu was abolished on 2 December 1868 the control of the 13 provinces
was transferred to the Accounting (or Finance) Office (kaikeikan) of the dajòkan and
soon afterwards to the Executive Office ( gyòseikan) of the central government.
83
Government Officials Order (shokuinrei) of 15 August 1869.
84
T. Òshima (note 57) typified the office bearers in the local administration from
the aspects of descent, loyalty, official discipline, loc. cit. at 96–101.
85
M. Òshima (note 73) at 7: table 1. Because the table is intended to demonstrate
the ranks of the officials (chokunin, sònin, hannin, and grades each, see p. 156), the list
is ordered in that sequence from high to low, the district posts are listed separately.
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121
governor (chiji )
secretary (shokikan)
chief revenue official (shùzeichò, from 1884)
chief of police (keibuchò )
supervisor of prisons (tengoku)
vice-supervisor of prisons ( fukutengoku)
prison governor (kanshuchò )
prison secretary (kangokushoki )
police inspector (keibu)
police inspector’s assistant (keibuho)
lower revenue official (shùzeizoku)
------head of a district ( gunchò )
district secretary ( gunshoki )
councillor (sanjikan).
This list conveys the impression that the emphasis of the duties of
the prefectural office was put on police and prison affairs. This is
due to the sweeping term ‘secretary’. The secretary was the most
important official responsible for the wide range of civil administration. The six sections of the prefectural office (see above, state of
1875)86 were directed by the secretary whose post was divided into
senior and junior secretary.87 Each section consisted of other personnel also. In the course of time changes in details were made.
2. The district office ( gunyakusho) was established as a purely administrative section under the Law Governing the Organization of Rural
Districts, City Wards, Towns and Villages. An assembly and a council were provided for, it is true, but the district head ( gunchò ) was
the leading person: he was the president of the assembly and summoned it, carried out its decisions, controlled district property and
public works, created the district officials who were paid from prefectural taxes, and, upon the decision of the assembly, also the officials
who at the expense of the district were in charge of the district property, public works, and construction. However, it was the governor
who appointed, supervised, and dismissed these officials. The district
head was the only office-holder in the district council.
86
The civil court section (chòshòka), depending on circumstances, also kept watch
over domestic affairs of the prefecture, and moreover, punished criminals, and arrested
fugitives. The section existed from 1871 to 1875. The administrative police section
(keihoka) took its place.
87
M. Oshima (note 73) at 5 et seq.
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The supervision of the district office was the task of the governor
who was secondary to the Home Minister. But the activities of the
office were not very important, and the apparatus seems to have
been small.88
3. The administration of Hokkaidò was subject to special provisions. The first local government was the Bureau of the Colonization
Commissioner (kaitakushi ) from 1869 to 1882. The office was well
equipped, the staff comprised of officials of all fifteen ranks of the Meiji
personnel system.89 In 1882 three rural prefectures (ken) were created:
Sapporo, Hakodate, and Nemuro. Four years later all Hokkaidò became
one administrative area controlled by the Hokkaidò Office (Hokkaidòchò)
and branch offices, and at the same time was granted the status of a
local self-governing unit. The relevant basic laws were enacted in 1901:
Hokkaidò Assembly Law and Law Concerning the Local Expenses
of Hokkaidò.90
4. When World War II came to an end the administrative organization was, strongly influenced by American systems, ordered anew.
Numerous committees for the regulation of activities of private trade
and industry were set up within the administration, similar to those
in the USA. In this way the citizens’ independent participation in
administrative matters was made possible. This new system democratized public life, and that, after all, was the goal after decades of
the rule of bureaucracy and militarism. Decentralization of authority was another political objective, and so local autonomy was emphasized and firmly based on a specific chapter of the new Constitution:
88
As a rule, even the number of members of the district assembly was limited
to twenty—one member per town and village elected there. If more than twenty
were elected the assembly was entitled to enact a law of apportionment and have
it approved by the governor. If less than ten members were elected the number
could be increased to ten. Ishii/Chambliss (note 2) at 360/431. The council had
only five members. The staff of the office contained men in charge of special subjects. They were of low rank and salary, even the district head was, in the early
years, a hannin; no sooner than in 1886 was his post raised or treated as equivalent to sònin rank. M. Òshima (note 73) at 7 and 8.—Meiji kansei (Meiji Government
Organization), in Tokyo teikoku daigaku shiryò hensanjo (Bureau of the Imperial University
of Tokyo for compilation of historical materials), Dokushi biyò (Requisite for Reading
History), at 544 et seqq. [546] (1942).
89
Dokushi biyò (note 88) at 550.
90
Hokkaidò kaihò and Hokkaidò chihòhihò; the term chihòhi was used to describe
Hokkaidò as a local self-governing unit (S. Wagatsuma, ed., Shinhòritsugaku jiten
(Dictionary of Modern Jurisprudence), p. 905, headword ‘Hokkaidò ’, 1957). Under
the Local Autonomy Law (Chihò jichihò) of 17 April 1947 the head of the Hokkaidò
Office received the title chiji like the governors of the other prefectures.
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123
articles 92–95. The voluminous Local Autonomy Law came into
force on the same day as the Constitution (3 May 1947) and has
kept the legislator busy ever since with reviews and amendments.
B
The foregoing remarks concentrated on the organization of government. Now we must look at the substantive law of administration.
As mentioned in the first sentence of this essay, the government
over the people and management of the affairs in society, i.e. giving
laws, carrying them out, and restoring peace in case of disorder and
quarrel by disposing justice, were the undivided function of sovereignty from old times. Administration or executive was individualized
when the separation of powers was introduced as proclaimed in the
‘Document on the Government System’ (seitaisho) of 17 June 1868.
Of course, at that time there was no general law for the method
of administrative operations and the regular fulfilment of the officials’
duties. Due to the impossibility of creating new regulations extempore,
an imperial order of 17 January 1868 announced that the Emperor
would decide in all matters of state, that deliberative assemblies would
widely be engaged, and—most importantly from our point of view—
that the “just practices of government and good laws” of the past
bakufu would remain unchanged.91 The common interpretation of this
last point connects it with civil law, but nothing seems to stand in
the way of also applying that principle to the administration. This
view may be based on the fact that the said provision should be
characterized as customary law, and the first official definition of
‘custom’ was “whatever has been enforced by the prefectural offices
and law courts”, and “custom was not the customs and manners
observed by the common people” (1875).92 Continuing former practices
91
R. Ishii (note 2) at 37. In part: W. Chambliss (note 2) at 49.
This definition, issued by the Ministry of Justice, was caused by questions of
lawcourts concerning art. 3 of the Rules for the Conduct of Court Affairs (cited in
chapter ‘The Courts of Law’ of this book, p. 731). The rules referred to civil cases,
it is true, but civil cases included complaints against an action or order of a regional
authority or mayor (loc. cit. p. 731), i.e. administrative litigation.—A few years later
the Ministry of Justice changed the definition and included “popular custom, that
is the custom recognized by civil law as being traditional popular practice”.
Ishii/Chambliss (note 2) at 38/50.
92
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was meant to be a temporary substitute, however, a general law for
which the substitute was to function has never been enacted.
Standard instructions might have been derived from the idea of rule
of law (hòchishugi ), but this notion was neither universally acknowledged
by the legal scholars93 nor translated into administrative practice.
Also the principle of lawful administrative practice (hòritsu ni yoru
gyòsei ), an element of the rule of law, was legally established no
sooner than under the Constitution of 1947.94 Although Japan, by
enacting the Meiji Constitution in 1889 and modern laws on the
western pattern, had revealed earnest preparations for the stabilization
of a law-governed order (to the satisfaction of the foreign countries
which therefore agreed to the revision of the inequal treaties), the
principle of lawful administrative practice was not fully realized
because the Emperor, of course advised by the government, was
empowered to decree ordinances exempt from parliamentary control under arts. VIII and IX of the Constitution.95 ‘Lawful’ = ‘according
to law’ was interpreted as referring to laws resolved by the diet.
Finally, the search for substantive rules of administrative practice
could be focussed on judgements of lawcourts. As mentioned elsewhere
in this volume,96 at the end of 1872 people were permitted to challenge measures and regulations of local officials before a court of
law.97 Actionable items were enumerated, and from that list of five
points we may perhaps conclude the following general directions:
93
T. Minobe held the rule of law received as a positive norm into the fundamental law of Japan, and gathered that from a clause in the preamble of the
Constitution: “We now declare to respect and protect the security of the rights and
property of Our people, and to secure to them the complete enjoyment of the same,
within the extent of the provisions of the present constitution and of the law”.
S. Uesugi in contrast wrote: “Each individual belonging to the state is able to develop his personality fully through subordination to sovereignty. Absolute submission to sovereignty develops human personality and is the sole requirement for the
attainment of the highest ethic. . . . it is only as subjects that men achieve the proper qualities of men. If men are to attain natural freedom, they can do so without grief only by living in the character of subjects making up the state and submitting
to its sovereignty”. F.O. Miller, Minobe Tatsukichi, Interpreter of Constitutionalism
in Japan, p. 142 and note 68 p. 324 (1965).
94
S. Imamura, Gyòseihò nyùmon (An Introduction to the Law of Administration),
p. 10 (1973).
95
Ordinances under art. VIII required the subsequent sanction by the diet; in
case of refusal the ordinance lost its validity in future.
96
Actions against acts of local officials: Ködderitzsch, chapter 9.1; Röhl, The
Courts of Law, p. 723.
97
For details of the order (tasshi ) no. 46 of the Ministry of Justice see R. Ishii/
W. Chambliss (note 2) at 204 et seq./265; H. Wada, Gyòsei saiban (Administrative Adju-
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125
– local authorities or town and village heads were not permitted to
create regulations or take action that contravened the laws of the
Council of State and the orders of the ministries,
– they had to take care of petitions, inquiries, reports, etc. of individuals without delay,
– the local authorities were not to obstruct the rights of individuals
by restricting their migration and travel,
– they had to make public the laws and orders of the government
within ten days of the date on which the announcements were
posted by the surrounding prefecture,
– the local authorities were not to issue instructions that, due to misunderstanding and the like, were counter to the purport of government laws or ministerial orders.
In brief, the guideline for the local authorities was to observe the
laws and orders of the central government, to attend promptly to
supplications from the people, to respect the individual’s freedom of
movement, to instruct the people swiftly on laws and orders from
above, and to prevent misinterpretation of laws and orders.
Even if we could see traces of substantive law of administration
in these points we must keep in mind that the practice was hampered
by further regulations. On 2 September 1874 the government, via the
Ministry of Justice, enacted the Provisional Order Governing the Handling of Legal Actions of Individuals Against a Chamber of the Council
of State, a Ministry, the Colonization Bureau (Hokkaidò), or a Prefecture ( Jinmin yori in, shò, shi, fuken ni taisuru soshò toriatsukai ni tsuki
karikisoku). These regulations divided the administrative actions into
two groups: (i) suits of individuals without interest of others—to be
treated as civil litigation, (ii) suits of individuals affecting the interests of the general public—administrative litigation. In the latter case
the judge had to submit a detailed report to the government and
await the directions of the Central Chamber. In both cases the judge
had to report on the particulars and the possible outcome of the
adjudication if there was cause for the government to pay compensation
to an individual. These orders enabled the government to play a part
in the adjudication of administrative lawsuits by issuing directions,
by using its discretion, thereby interfere arbitrarily, and exclude the
control of the administration by the judicial power.98 To involve the
dication), in vol. 3 of the ‘Lectures. . . .’, cited supra note 5, at 102. In those works remarks on earlier administrative offices which dealt with complaints can also be found.
98
H. Wada (note 97) at 103. R. Ishii/W. Chambliss (note 2) at 205/266. It is
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top governmental level in cases of compensation shows that the requirement of a report was grounded not on budgetary considerations
(in that case a report to the Ministry of Finance would have been
appropriate or the knowledge of the office as a party to the suit
sufficient), but on the intention of the authorities to keep a position
of prime importance in the administration and not to be obstructed
by a lawcourt.
The division of actions into two groups against the said authorities
caused confusion; therefore, on 22 January 1876, it was ordered that,
until further regulation, all those actions had to be reported to the
Ministry of Justice, upon the approval of which the court could take up
the suit. Under an order of 9 May 1878 hopeless cases of compensation payable to an individual became exempt from being reported,
but some weeks later this order was repealed, and the authorities were
to be informed on any such case, regardless of the possible outcome.
These, and other orders pertaining to the subject matter, reveal that
the authorities could meddle with the business of the lawcourts and, as
such, stood in the way of the development of substantive law by setting precedents. In general, the lives of the common people were at
the mercy of the administrative power.99
The principle of rule of law and the forming of a law-governed
state was partly realized by the establishment of the Court of Administrative Litigation in 1890.100 But it was an incomplete achievement
because the organization and competence of that court were limited,
and the people’s way of having harm or damage repaired was insufficient. There was only one Court of Administrative Litigation in Tokyo,
hardly accessible for inhabitants of remote areas, and an appeal
against its decisions was not provided for. The actionable matters
were enumerated in the Law on Cases for Administrative Adjudication
of Illegal Dispositions by Administrative Authorities (Gyòseichò no
ihòshobun ni kansuru gyòseisaiban no ken) of 10 October 1890.101
also worth mentioning is that the ‘cause’ for compensation is jòri in Japanese. That
means ‘rational (or common) reason’, it was the basis of the decision in civil cases
if neither law nor custom could support the judgement, see p. 731. By means of
jòri general directions, if any, might have become inapplicable.—The subject matter is briefly dealt with by B. Elben, Staatshaftung in Japan (The Responsibility of
the State in Japan), pp. 49–56 (2001).
99
S. Imamura, Gyòseihò nyùmon (A Guide to the Administrative Law), p. 11 (1966).
100
The notion of administrative jurisdiction had already appeared among the
themes of H. Itò’s study in Europe, see chapter ‘Constitutional Law’ in this volume, p. 46.
101
See p. 634.—If a claim for damages could be concluded from the judgement
administrative law
127
Apart from the argument about whether administrative action
according to general guidelines possibly articulated in a judgement
of a lawcourt102 would fulfill the principles of lawful practice and the
collective tenet ‘law-governed country’, or if a formal law would legitimize the practice, the judgements of the Court of Administrative
Legislation hardly produced reliable hints about standards for the
administrative business. Taking legal action was a rare event. Most
of the judgements concerned procedural problems, local administration, and taxes.103 Details of court proceedings, matters of diverse districts under different circumstances, and individual tax assessment
rarely gave rise to the creation of generally binding principles in the
field of substantive law of administration.
However, a few general rules can be found in the review of eighteen judgements including those of civil courts by Wada:104
1. Limitation of proprietary rights by an ordinance.
a) A prefectural ordinance of 1898 regulated the control over
earthworks relating to the common utilization of water and ordered
that anybody who without permission had commenced such works
should be commanded to restore the original form at his expense.
The plaintiff had built a fishpond on his piece of land. The governor of the prefecture concluded that the pond affected the common
utilization of water traffic and, based on the said prefectural ordinance, ordered the plaintiff to remove the fishpond and restore the
original form. The plaintiff pleaded that the ordinance which restricted
the proprietary right of the people was null and void because it was
outside the governor’s authority.
b) The Administrative Tribunal decided: “Since under the Official
Organization of Local Offices (Chihòkan kansei ) the governor is authorized to issue ex officio prefectural ordinances concerning administrative measures of the prefecture the ordinance about construction
work relating to the common utilization of water lies within the
of the Court for Administrative Litigation the party could make an application to
a court for civil cases.
102
Round table talk in ‘Lectures’ (note 5), vol. 4, at 338 (1958).
103
H. Wada, Gyòsei saiban (Administrative Judicature), in ‘Lectures’ (note 5), vol.
3, at 125–135 and note 5 there at 127.
104
Loc. cit. (note 103) at 136–156; the following text refers to the judgements
no. 1 at 137, 3 at 139, 12 at 146, 18 at 155.
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range of his authority. Therefore, the order based on the prefectural
ordinance is legitimate.
c) The decision has been commented on controversially. Disagreeing
annotators refer to art. 27 of the Meiji Constitution,105 those in agreement founded their opinion on art. 9 of the Constitution (the right
of the emperor /= the government/ to issue ordinances) and art.
206 of the Civil Code.106—The prefectural ordinance was interpreted
as being part of administrative police regulation, and so the court
was regarded as clinging to the ideology of the administrative or
police state.
Anyway, the administrative authorities could take for granted that
‘law’ in ‘lawful administrative practice’ (hòritsu ni yoru gyòsei ) included
ordinances.
2. a) A prefectural governor had mediated as a private person in a
dispute about the design of water works between a city and an
affected village and issued a written decision. Some years later the
governor annulled that decision. The village took legal action.
b) The Administrative Tribunal dismissed the action and found:
The prefectural governor could not, by means of an administrative
proposal, alter the civil legal relations which existed between the city
and the village. The disposal by which those relations should be
altered did not have the effect of altering the extant legal relations
and cannot be regarded as an administrative disposal; therefore legal
action against it cannot be taken.
c) The judgement accepts that the administration may not interfere
with civil legal relations. It was criticized on two points: (i) That the
governor having mediated in his capacity as an ordinary citizen might
allow the assumption that it was a civil case. It was actually a case
to be dealt with under the Law Concerning Water Facilities and
Engineering Works of 1890, and consequently administrative litigation
could be commenced. (ii) The court had neglected the difference between a non-existent and a void administrative disposal. A disposal
existed but it was voidable and should have been declared void.
Consequently, the court should have given judgement for the plaintiff.
Nevertheless, the administrative authorities could assume that they
105
The proprietary right of any Japanese subject is inviolable.
On limitation of the proprietary right “within the bounds prescribed by law
or ordinance”.
106
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129
were not empowered to interfere with civil legal relations by means
of administrative disposals.
3. A judgement of the civil division of the Supreme Court of June
1916 concerning the obligation of the state to pay for damage done
was praised as epoch-making.
a) A pupil of a municipal elementary school fell from a rotten
swinging pole belonging to the school, and died. The youth protector took legal action against the city for compensation.
b) The Osaka High Court considered art. 717 of the Civil Code107
to be applicable, and the Supreme Court approved.
c) In Meiji Constitution’s times there was no rule governing the
liability of the state under public law, and under such circumstances
such liability was negated. The Supreme Court argued that the supervision of the establishment of an elementary school structure means
possession under civil law. Afterwards it came to consistent negation
of the liability for compensation of damage done by official administrative actions. As there was also no liability of the public servants
personally the sufferer had no chance of getting compensation.108
4. Compensation for damage done by an employee of a public
corporation.
a) In order to examine a sluice, a water guard of an irrigation
association opened the floodgate “in the capacity of executing a public right”. This caused fishfarmers to be harmed.
b) The civil court judged that there were no legal relations between
the employee performing his duty and the injured party. The action
of the employee was to be regarded as the action of the irrigation
association as a public corporation. The employee was not legally
obliged to compensate for the damage.
c) Commenting on the judgement, Wada argued that the employee
had acted beyond the boundary of his duty, the meaning of which
107
Regulating compensation by the possessor or owner for damage done to a
person because of a defect of the construction or preservation of a structure.
108
N. Imamura, Kokka baishò (Compensation by the State), in H. Suekawa (ed.),
Minjihògaku jiten (Dictionary of Civil Jurisprudence), vol. 1, pp. 603–604 (1960).—
Three theories were held among the scientists regarding the personal liability of an
official under civil law. The official was liable (i) only in case he had acted under
private law, (ii) if in all his acts he was the de facto doer, (iii) if, apart from intention or gross negligence, there were numerous cases in which the illegality of an
official act of his had been disproved and the claim for damages denied.
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public law
was not to do damage to others. Consequently the water guard had
not performed his official duty and was liable to pay compensation.
The judgement pursued the trend that the state (or a public corporation) could not be declared liable under public law, and also an
official could only be held liable under civil law. The usual practice, if any, of the courts to apply civil law in such cases finally gave
up the principle of refusing compensation for damage caused by
authoritative actions of the administration.109
No sooner than in 1947 the State Compensation Law (Kokka baishò
hò ) was enacted. It followed art. XVII of the new Constitution and
regulates the liability of the state and the public bodies (kòkyòdantai ).
If there are no special laws the Civil Code (Minpò) is applicable.
C
Because of the lack of a general code governing substantive law, the
tasks of administration, the way the work had to be done, and the
rights and duties of the functionaries must be looked up in special
laws and ordinances for the single branches of the administration.
Since this essay is not meant to be a comprehensive textbook and
the scope of the topic so vast, the instancing must be limited to a
few brief remarks only:
I. Commonly the large mass of administrative operations is divided
into intervening, regulating, and providing administration (shingai-,
kisei-, and kyùfu gyòsei ).
1. Intervening administration affects the property or the freedom of
a person.
a) Taxation. In order to straighten out the hitherto complicated
and varied methods of collecting taxes the government introduced a
land tax reform on 28 July 1873. The land tax was the main source
of the state’s income. An imperial edict accompanied the Land Tax
Reform Regulations (Chiso kaisei jòrei ). The edict stated that by way
of efforts of officials and the Cabinet the diversity of taxation had
been reduced to a fair and uniform procedure, and expressed the
hope of the Emperor “that the tax be levied impartially in order
that the burden may be shared equally among the people”. These
109
N. Imamura, (note 108), loc. cit.
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131
words lead the administration to understand the principles of dealing
with taxation business.110 The significant points of the reform were
that the land tax was no longer levied on account of the amount of
production but on the land value fixed by a survey, and that it had
to be paid in specie rather than in kind. The regular tax rate was
three percent. A modern right of ownership was established as a
consequence of that reform.
In the years following many new taxable items were introduced,
tax legislation became more extensive, and the principle was established
that the imposition of new taxes or the modification of existing ones
could only be determined by law; this was strengthened by inclusion
in the Constitutions of 1889 (art. LXII para 1) and 1947 (art. 84). This
principle of lawful taxation (sozei hòritsu shugi ) had already been seen
in relative terms in Meiji times. The management of taxation was
performed not by bureaucratic authoritarianism alone but by officials
consulting with influential civilians, especially men of high reputation
in their region.111 One may assume that this system was open to a
wide interpretation of the legal conditions. The interaction of bureaucrats and notabilities made it unnecessary to conduct an inquiry into
the effectiveness of the written law, and, therefore, the laws did not
experience a further development. Finally, in the early Shòwa time
the management of income taxation was carried out in the form of
administration by decree (tsùtatsu gyòsei ). The land tax, formerly calculated on the registered value of the piece of land which could not
be disputed by means of legal action, began to be based on the variable lease value in individual cases. Collective local taxes owed were,
in consultation with the notables and based on estimation, allotted
to the single households; thereby preponderances were likely to
occur.112 With regard to this, the Regulations for the Household Rate
of Prefectural Taxes ( fukenzei kosùwari kisoku) were enacted in October
1921, by which the system of taxation was standardized all over the
country. There remained, however, regional differences in the burden
110
Detailed information on the land tax reform can be found in many textbooks,
essays, and dictionaries of history. For a concise description see R. Ishii/W. Chambliss
(note 2) at 130–141/176–186 and 722.
111
The Income Tax Law of 1887 and the Business Tax Law of 1896 introduced
committees for investigating income (and business respectively) tax with the right
to be consulted.
112
Y. Yamamura and M. Katò, Zaiseihò (Finance Law) in ‘Lectures’ (note 5),
vol. 10, p. 99 et seqq. [148–152].
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of the taxpayers. Finally, in March 1940, the allotment of household rates was abolished and substituted by a local inhabitant’s tax
(shichòson minzei ).113
A particularity of former times may be added:
Before the Meiji era local taxes assessed by the local authorities (deputies
of the bakufu or the feudal lords) were levied on the villages where the
apportioning of the taxes to the villagers was left to the village assembly. If a person failed to meet his obligations not only he, but also his
family and the five-man-group of which he was a member, were held
responsible. That system was done away with soon after the restoration.
b) Expropriation
When the feudal system was abolished, the bakufu’s ban of 1643 on
the final sale of fields114 was repealed (23 March 1872), and the private ownership of fields was introduced for common people.
Nevertheless, the government saw to it that sites could be requisitioned for public use. On 28 July 1875 the Regulations Governing
the Purchase of Land by the State for Public Use (Kòyò tochi kaiage
kisoku) were issued.115 Under these regulations high authorities of the
state (cabinet, ministries, prefectures) could, in order to provide the
country, districts, villages, or cities with facilities for their preservation, purchase privately owned land. In order to prevent misuse by
the authorities the purchase should be made only if the possession
of the land was absolutely necessary. In this case the private owner
could not avert the purchase. The price was set in accordance with
the purchase price as fixed in the title-deed.116 The requirement was
announced and carried out by the authority in need of the land;
the whole procedure was an administrative operation.
The Regulations were replaced by the Land Expropriation Law
(Tochi shùyò hò) of 1889, and in 1890 rules for the land expropriation
113
For details see H. Yoshikawa, Kosùwari (Household Rate, Assessing Taxes
According to the Number of Houses), in Nihon rekishi daijiten (Great Dictionary of
Japanese History), vol. 8, p. 117 (1958).
114
Tahata eidai baibai kinshi. ‘Final sale’ means sale for ever. It was a sale in the
modern sense: abandonment of the right to a property. The ban on ‘sales for ever’
had been preceded by similar clan legislation. Another kind of sale was the disposal for a fixed period of years (nenkiuri ) which was used as a means of security
for a loan or other debts. M. Takigawa, Nihon hòseishi (History of Japanese Law),
pp. 439, 443 (1959), and other books on the same subject.
115
On 8 December 1882 two articles were added.
116
When private ownership was established the owner was given a title-deed
which certified his right. Also the value of the land was written in the document.—
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133
committee, introduced by that law, were enacted. These were forerunners of the new Land Expropriation Law (Tochi shùyò hò ) of 7
March 1900, which kept much of the spirit of the previous system
and enumerated the enterprises which were entitled to take private
property into their ownership (shùyò ) or into their use (shiyò ). This
law remained in force until it was extensively revised by the present
Land Expropriation Law of 9 June 1951.
The object of the law of 1900 was briefly defined in art. 1: For
the sake of enterprises which serve the public interests these enterprises
may, under the provisions of this law, expropriate or use a piece of
land if this land is needed for their business and must necessarily be
expropriated or be taken into use, namely by those concerned in
i.
ii.
iii.
iv.
national defence or other military matters,
works on imperial tombs, or shrines and temples, or public offices,
social work, education, or science,
public establishments (22 items), e.g. railway, roads, bridges, rivers,
public utilities,
v. health care, prevention of fire, flood damage, or storm damage,
beacons on navigation routes, meteorological observation, or other
equipment for public use.
The law regulated in detail the procedure of expropriation from the
first steps of the entrepreneur in order to obtain the permission of
the Home Minister (or other responsible ministers), through to the
official announcement of the details by the regional authority, involvement of local offices, enquiry into the legal conditions regarding the
property, commitment of the Expropriation Examining Commission
(Shùyò shinsakai ), compensation for losses to the owner and persons
concerned, effect of the expropriation, and costs. He who objected
to a decision of the commission could appeal to the Home Minister.
If a decision of the commission infringed the law and thereupon
injured a right of a person, this person could take legal action in the
Court of Administrative Litigation.
All in all the Expropriation Law of 1900 gives the reader the impression that it corresponded to the idea of rule of law and that in practice the cases were dealt with in such a way that there were only rarely
grounds for legal action.117 In view of the rapid development of
117
H. Wada (note 103) at 129–132 records that there were 71 cases in peacetime before 1914 (plus about 10 cases concerning procedural problems).
134
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industry and commerce in the late Meiji years, especially after the
Japanese-Russian war, the need for land for factories must have been
urgent, and accordingly the purchase of land or, if an agreement
could not be reached, expropriation, might have been a frequent
event. The small amount of administrative litigation (see note 117)
indicates that many cases were settled in harmony—the owner possibly growling but at the same time aware of his position regarding
the influential enterprises, or loyally acknowledging the national politics defined in the maxim ‘wealth and military power of the nation’
( fukoku kyòhei ).
Amendments seemed to be appropriate following World War II. A
new Expropriation Law was enacted on 9 June 1951. The old law
had 88 articles; the new one consists of 146 articles and has repeatedly been revised. The purpose of the new law as defined in art.
1, emphasizes that it aims at harmonizing the promotion of public
interests and the disposal of private property, and that it will hereby
contribute to a reasonable and rational use of the land. Nearly fifty
categories of enterprises which may expropriate or take for use are
enumerated in art. 3. The former Expropriation Examining Commission is made democratic and renamed ‘Expropriation Committee’
(Shùyo i’inkai ).118 A committee is assigned to each of the prefectural
governors but operates independently. The seven members, and at
least two members in reserve, must have outstanding experience and
knowledge of law, economy, and administration and be able to judge
impartially about public welfare. They are appointed by the prefectural governor requiring the assent of the prefectural assembly, art.
52. After extensive administrative preparations, involving also the
Ministry of Construction, the enterprise applies to the committee for
a decision. Prior to making the decision the committee may endeavour to mediate between the parties or persons otherwise concerned.
2. The main commission of the regulating administration is the police
and the duties of its special branches.
a) The organization of the constabulary should briefly be intro-
118
Under art. 38 of the old law the commission fell under the control of the
Home Minister and consisted of a president and six members, three of whom were
high civil servants and the three other prefectural honorary councillors. The civil
servants were nominated by the Home Minister, the councillors elected by the
assembly of the honorary councillors.
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135
duced.119 When the new regime replaced the bakufu one of the most
important matters of concern was to restore and secure order in the
bakufu’s capital Edo. In May 1868 the Edo castle was taken by the
eastern vanguard of the imperial troops, and the authority above the
municipal police force was given to the two former Edo magistrates
(Edo machibugyò),120 with the order that the existing mode of police
control should remain unchanged for the time being. A few days
later three other bakufu officials were charged with control over the
police, and twelve domains had to provide policemen on patrol in
Edo. In order to quell a rebellion against the government the city
patrols were turned over to the government’s army, and by quashing
the rebellion in June 1868 the Meiji government won complete control of Edo. In July 1868 the Edo garrison (chindai )121 was established,
and municipal offices (shisei saibansho)122 took over the police business
as successors to the Edo magistrates. Their own corps of constables
as well as soldiers from four domains patrolled the streets and had to
arrest thieves, robbers, and other lawless elements. Like other state or
governmental institutions the organization of the police also underwent
several changes in quick succession regarding responsibility and subordination to a branch of administration. The two municipal police
offices were replaced by the Tokyo prefectural government once the
Tokyo prefecture (Tòkyò-fu) had been created in September 1868 and
the chinshòfu (see above) dissolved. Tokyo was divided into 47 guard
districts, and thirty domains provided the patrolmen. Since it was
the business of the War Office (later: War Ministry) to acquire the
patrolmen from the domains, the Tokyo prefecture could not effectively
decide how to engage them. At the request of the Tokyo prefecture
the government transferred the authority and jurisdiction over the
troops to the prefecture in January 1870. The 47 districts were reorganized into six large districts, and each district’s unit of troops was
119
R. Ishii/W. Chambliss (note 2, pp. 186/240 et seqq. P. Schneider, Polizei
und Gefahrenabwehr in Japan—aus Sicht der deutschen Polizeirechtslehre (Police
and Prevention of Danger—As seen from the German Science of Police Law),
p. 31 et seqq. (2000), with further references.
120
T. Ishikawa and N. Sakuma who had been appointed Edo machibugyò by the
old government shortly before the capture of the Edo castle (Dokushi biyò, note 88,
at 520). One of the two magistrates controlled northern Edo, the other the south
of the city. They were responsible for the civil administration including the police.
121
See above p. 99.
122
Saibansho as the denomination of early administrative authorities, see chapter
‘The Courts of Law’.
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public law
now designated by the number of the district and no longer by the
name of its domain. The number of Tokyo prefecture’s own policemen
amounted to about 1,500 in March 1870, compared with the original
figure of 2,100. The prefecture also took over the control from the
War Ministry, of a special unit123 for the protection of the foreigners’
settlement at Tsukiji in Tokyo. In addition to these police forces124 the
five-man-group and civic guard organizations of Edo tradition were
active in performing tasks of police nature. The Tokyo police system
served mutatis mutandis as an example to local police structures.
When the domains were abolished in August 1871 the existence of
domain troops as police units in Tokyo lost its basis, and the external
units were disbanded. The metropolitan police was reorganized and
unified. On 5 December 1871 Tokyo was provided with 3,000 policemen (rasotsu) enlisted from several prefectures. Each of the six large
districts125 was subdivided into sixteen small districts, and every small
district had a police station (rasotsu tonsho) staffed with one captain
(kumigashira) and thirty policemen (kumiko, denomination of a rasotsu as
a member of the local group), three of them being sergeants (kogashira).
For a short while the ancient Imperial Police Department (danjòdai )126
was revived on 1 July 1869. The inspection (kansatsu) section of the
Penal Law Office127 was simultaneously abolished.128 The old danjòdai
had been created in the early 8th century and positioned independently beside the eight ministries of the government. The duties of
that office were to cleanse the manners and customs inside (both wards
of Kyoto) and outside (five provinces adjoining Kyoto and other areas)
as well as to investigate and report on wrongdoing.129 In the 9th century the functions of the danjòdai became the business of the kebiishichò
123
Bettegumi, created in late bakufu times. Dissolved in 1872.
Some months later increased by an additional thousand men.
125
Daiku. In each daiku a police branch office (torishimari shutchòsho or daikuyakusho)
was installed under a commanding officer. At that time the police force was called
torishimari (= control, watch), and a police unit was torishimarigumi. In June 1872 the
term rasotsu was used for the Tokyo police as a whole.—The legal basis of the reorganization was the ‘Outline of Rules for the Police units’ (torishimarigumi daitai hòsoku)
and the ‘Ordinance Governing the Police’ (torishimari kisoku) of January 1872.
126
W. Chambliss (note 2), p. 245, and others call it ‘Censorate’.
127
See chapter ‘The Courts of Law’, § 2.
128
Shihòenkakushi (History of Justice), note 5 in chapter ‘The Courts of Law’,
p. 6, on Meiji 2, 5th month, 22nd day.
129
N. Ariga, Nihon kodaihò shakugi (Exposition of Old Japanese Law), p. 46 (1908).
M. Sekine/T. Katò, Yùsoku kojitsu jiten (Dictionary of Ancient Practices and Usages),
p. 482 (1925), held the danjòdai to be similar to the modern administrative court.
124
administrative law
137
(Police Office); the danjòdai continued to exist in name but not in deed.
Revived in 1869 the officers were denominated under the ancient titles.
Their duty was to make tours of inspection in all parts of the country and also investigate law violations. Moreover, the danjòdai employed
secret agents who had to seek out and obtain definite proof of good
deeds and sinister plots among the people. On 24 August 1871 the
danjòdai was dissolved when the new police organization was introduced.
The control of the Tokyo police (rasotsu) fell to the Ministry of Justice
in September 1872. There, the Police Bureau (keihoryò ) was created
to function as the administrative police with nationwide authority.
The denomination of the officers was changed: Six ranks of subordinates: senior, middle, and junior sergeants (zoku) and their substitutes
were below the top officials (kami, gon no kami, suke, gon no suke). Under
this national or central Police Bureau the metropolitan police had a
staff of its own: chief (daikeishi ) and his substitute, junior chief (shòkeishi )
and his substitute, and four ranks of sergeants (keibu). The superintendent
of the rasotsu, T. Kawaji, became suke of the Police Bureau and concurrently daikeishi of the metropolitan police.130 The Police Bureau
dispatched officers to each district to supervise the local police personnel,131 which had replaced the disbanded troops of the prefectural
guard. Besides this, the Ministry of Justice employed civilian watchmen
in Tokyo who were set up and paid by the community; when put
into official service they were appointed by the authorities but also,
in this case, paid at the expense of the people (minpi ). They were
called patrolling constables ( junsa), a type of policemen in addition
to the rasotsu (organized and paid by the central government) and
the bannin = watchmen (created and paid by the community).
These administrative police forces and the Police Bureau were transferred to the Home Ministry on 9 January 1874 while the judicial
130
Shihòenkakushi (History of Justice), compiled by the Ministry of Justice and
edited in 1939 by the Hòsòkai ( Jurists’ Association) on the occasion of the 50th
anniversary of the Saibansho kòseihò (Law of the Constitution of the Courts), pp.
18–19, under Meiji 5/8/28 = 30 September 1872.—Toshiyoshi Kawaji had visited
Europe and studied the police systems in several countries. He made a great contribution to the renewal of the Japanese system. He pleaded for and carried out
the separation of administrative and judicial police as well as more power for the
administrative police.
131
The successors of the prefectural guard troops were hobòri = regional officers
responsible for pursuance and arrest of criminals, torishimarigumi = surveillance groups,
bannin = watchmen.
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police remained with the Ministry of Justice. Six days later the government established the Tokyo Metropolitan Police Office (Tòkyò
keishichò ) which took over the administrative police-force of the capital.
The junsa, rasotsu, and bannin were placed under its authority; some
months afterwards the rasotsu were renamed junsa132 and the bannin
done away with. These changes went along with the organization
of the administrative police outside of Tokyo under the Regulations
Governing the Administrative Police (Gyòsei keisatsu kisoku) of 7 March
1875, enforced from 1 April 1875. In December 1875 a definite
standard of deployment was fixed by the Home Ministry, creating
a network of police districts, police stations, and sub-stations. When
the government undertook to suppress the revolts in western Honshù
and northern Kyùshù in 1877 and restore peaceful conditions in the
South-West, the whole police force came under the control of the
Home Ministry, where the Police Secretariat (keishikyoku) was established. The head of it had to perform the duties of the judicial police
concurrently. In January 1881 the former organization (national Police
Bureau, metropolitan police) was in principle restored.
At the same time it was announced that a gendarmerie was created
within the army, and on 14 March 1881 the Regulations for the
Gendarmerie (kenpei jòrei) were issued. The gendarmerie was a military
police. The gendarmes inquired about wrongdoings by soldiers, but
served also as administrative and judicial police, and so simultaneously
performed official duties of the Army, Navy, Home, and Justice Ministries.
Gendarmerie headquarters were established first in Tokyo, then in
every military district and the kenpeitai (gendarmerie troop) organized.
In the 1890s the sphere of activity was extended; the kenpeitai developed to be much the same as a general police and increased its operations to the maintenance of public peace and order. The troops were
deployed to quell disturbances: e.g. rebellious fire-raising in Hibiya
(Tokyo) on 5 September 1905;133 people’s movement against the political influence of the clan faction, military clique, bureaucracy, and
132
This word for the common policeman or constable has outlived the times,
art. 62 of the Police Law of 8 June 1954. Also the word keisatsu was used for police
from the mid 1870s.
133
The people regarded the peace treaty of Portsmouth which ended the JapaneseRussian war to be too lenient from the Japanese point of view, and was about to
hold a protest meeting at Hibiya park in Tokyo which was stopped by the police.
Thereupon the crowd attacked and set fire to the Home Minister’s residence, numerous police offices and boxes, the Christian church, streetcars etc. The riot went on
for three days. Hibiya yakiuchi jiken.
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139
elder statesmen in February 1913;134 rice riot in 1918;135 turbulences
following the earthquake of 1 September 1923.136 The kenpeitai also
operated in Taiwan and especially in Korea where it spied on antiJapanese reactions. Over the years it gained the position of an omnipotent instrument for surveillance and dreaded persecution. The kenpeitai
was done away with on 2 September 1945.
The twofold structure of the administrative police: the nationwide
office ‘Police Bureau’ (keihokyoku) as the highest responsible institution under the control of the Home Minister,137 and separately the
Metropolitan Police Office (keishichò) which, superintended also by
the Home Minister, administered the police affairs in Tokyo,138 continues to exist in a basic form to this day. Under art. 42 of the
134
Triggered by the transition from the 2nd cabinet Saionji to the 3rd cabinet
Katsura on 21 December 1912. The shift from a peer to a high army officer and
incumbent Home Minister for Prime Minister, caused by the collapse of the Saionji
cabinet due to a dispute about the increase of the army divisions, was understood
to be taraimawashi (monopolizing political power within one’s own clique) and gave rise
to the formation of the movement for safeguarding constitutional government ( goken
undò = abbreviation of kensei yògo undò), the followers of which demanded party cabinets and, on 10 and 11 February 1913, assaulted newspaper offices and several
police stations in Tokyo.
135
Komesòdò. Of the three riots of 1890, 1897, and 1918 the last one was the
most widely spread and violent protest against the price increase of rice. Details
can be looked up in every historical dictionary. The political outcome of the uprising was the resignation of the Terauchi cabinet and the founding of the first party
cabinet by Takashi Hara (Rikkenseiyùkai = Constitutional Party of Political Friends)
on 29 September 1918.
136
The enormous losses of life and houses brought about instability of public
feelings and behaviour. The impending chaos instigated the Emperor to proclaim
martial law in defined areas under the Law of Siege of 5 August 1882. Thereby
the regionally commanding officer of the army was entrusted with far-reaching
administrative and judicial authority.
137
From 1886 the Bureau also guided the regional administrative police.
138
The Metropolitan Police, not being part of the administration of the governor of Tokyo prefecture, was exempt from the regional jurisdiction of the Police
Bureau, the chief of the keishichò reported directly to the Home Minister. The duties
of these men were to act as a police force, to prevent and extinguish fires, and to
do service in prisons. One special section of the keishichò was as ‘political police’
(kokuji keisatsu) responsible for investigating subversive activities against the state. At
first not clearly defined, the duties were formulated as follows in 1881: ‘to secretly
search for and prevent political crimes’, i.e. crimes against the emperor and his
family, rebellion, treason, crimes against allies in wartime, as enumerated in arts.
77–89 of the Penal Code. R. Ishii/W. Chambliss (note 2) at 388/461. K. Hosokawa
(note 2) at 9.—Under art. 247 of the Code of Criminal Procedure of 1922 the
chief of the keishichò (now called keishi sòkan) as well as the governors of the prefectures and the provost marshal in the capacity of judicial police were within the
sphere of their authority vested with the rights of a district public prosecutor. From
1886 the political police was called ‘higher police’ (kòtò keisatsu), and in 1911, on
140
public law
Police Law (Keisatsuhò ) of 8 June 1954 the head office of the Tokyo
police is still called keishichò,139 while the other prefectural police headquarters are dòfuken keisatsu honbu (headquarters of Hokkaidò, municipal and rural prefectures). They all operate under the control of the
Public Safety Commission (kòan i’inkai ).140
b) The tasks of the constabulary, as taken over from the bakufu system
and for some months carried out in the city of Edo by the two town
magistrates and their subordinates, were diverse and allotted to special groups. There were arson, theft, and gambling inspectors, fire
lookouts and fire fighters, and guards for preventing edifices or piles
of lumber etc. from being built so high that they were a menace to
the public. Other groups and officials dealt with ordinary police work
serving the safety of the locality and the inhabitants.141 In addition,
the constabulary of that time performed the duties of the judicial
police by searching for criminals and arresting them. The constables
of low rank, the yoriki and dòshin, who were engaged in many tasks,
also had to make inquiries about lawbreakers. As the separation of
powers was not yet realized the Edo magistrate (machibugyò ) was also
legally competent to sentence a wrongdoer;142 the dòshin made the
investigation, and the yoriki, who were their superiors, returned the
verdict.143 In many regions outside Edo police forces had been organized similar to those of the metropolitan order.
When the Police Bureau (keihoryò ) of the Ministry of Justice was
the occasion of the uncovered plan of anarchists to assassinate the Emperor, an
additional subdivision ‘special higher police’ (tokkò keisatsu) was founded in order to
repress socialist movements. Following the wide-ranging persecution of communists
in 1928, offices of the special higher police were established in every prefecture.
Henceforth this branch of the police was engaged in carrying out the laws governing the maintenance of public peace and order, and on the pretext of them suppressed any democratic movements. Officers were also dispatched abroad (Shanghai,
London, Berlin) to seek information and possibly to arrest suspects (Nihon kindaishi
jiten [note 20] at 426).
139
Under a by-law the Osaka police headquarters are also known as keishichò.
S. Wagatsuma, ed., (note 90) at 217.
140
This was a national commission and prefectural commissions.
141
R. Ishii, Edo jidai manpitsu (Miscellany on the Edo Period), vol. 1, chapter 3
to 6, pp. 25–48, acquaints us with various types of policemen in a readily comprehensible approach.
142
The same went for the Temple and Shrine Magistrate ( jisha bugyò ) and the
Finance Magistrate (kanjò bugyò). R. Ishii, Nihon hòseishi ( Japanese Legal History),
p. 145 (1959). NB bugyò is also translated as ‘commissioner’.
143
R. Ishii (note 141) at 31.
administrative law
141
instituted (see above) its purpose was officially defined “to maintain
peace and order throughout Japan, protect the health of the people, and to take precautionary measures against persons obstructing
these objectives”.144
On 7 February 1874 the Service Regulations and Rules for the
Metropolitan Police Office (keishichò shokusei shòtei narabi ni shokisoku)
described the purpose of the police as follows: “to prevent the people from suffering injury and to secure the public peace”, and classified
the functions under the four topics of ‘rights, health, morals, and
political affairs’:145
I. The police must protect the rights of the people and safeguard
their property.
II. The police must take measures to safeguard the health of the people and protect their lives.
III. The police must suppress immoral conduct and purify popular
habits.
IV. The police must secretly hunt down and take preventive action
against political offences.
The Regulations Governing the Administrative Police of 7 March
1875 (see above) articulated the said functions more briefly:146
i.
ii.
iii.
iv.
to protect the people against disturbance,
to care for health,
to check dissipation and debauchery,
to search secretly for persons who plan the infringement of national
law, and to prevent it.
Whenever the administrative police failed to prevent a crime, the search
for and arrest of the offender was to be the duty of the judicial police.
The penal authority of the police went by the Office Regulations
for the Police Bureau (keihoryò shokusei shòtei ) of 19 November 1872. The
regulations dealt with two parts of the administrative police’s jurisdiction: contraventions147 and prostitution.
144
R. Ishii/W. Chambliss (note 2) at 191/248.
Loc. cit. (note 144) at 193/250.
146
R. Ishii (note 2) at 194–195. ‘National law’ in no. iv could be understood to
be the law concerning political offences as in the above Service Regulations of 7
February 1874.
147
Ishiki. Literally: violation of a statutory instrument, an offence under the legal
system of past times. In the early Meiji era ishiki meant police offences, which from
1 January 1882 under the (old) Penal Code of 17 July 1880, were called ikeizai.
145
142
public law
The contraventions were major (ishiki ) or minor (kai"i ) ones; the
adjudication by the police was regulated under the Ordinance
Concerning Major and Minor Contraventions (Ishiki kai’i jòrei ), enforced
first in Tokyo (53 articles) and on 19 July 1873 in the whole of
Japan (Kaku chihò ishiki kai’i jòrei, 90 articles). Major contraventions
were counterfeiting, sale of putrid food and drink, sale of immoral
articles, exhibitionism, disturbance of traffic, etc. Minor contraventions
were driving a carriage furiously on narrow ways, parking a cart at
the roadside, relieving oneself on a road open to traffic, quarreling
in public, etc. The prefectures were authorized, depending on local
circumstances, to add further acts (actùs rei ) to the catalogue or leave
out or change items. This practice may reveal local social conditions.
Contraventions locally created were, for example, individual embroidery,
conducting a bath for both sexes, peeling off the skin of dead cattle
or horses and cutting up flesh in a street.
The sentencing officer in the case of a major contravention and
below was the chief of the metropolitan police or his substitute
(daikeishi, gondaikeishi ). The junior chief and his substitute could also
decide on a major contravention if there were no complications. A
sergeant could decide in the case of a minor contravention, however,
if the case was too difficult to decide it had to be referred to the
junior chief. Corresponding police officers in the prefectures had to
implement the said ordinance when it came into force outside Tokyo.148
The police could impose an exemplary, also called correctional, (nonpenal) fine of 75 to 150 sen in the case of a major contravention, and
6 sen 2 rin 5 mò to 12 sen 5 rin in the case of a minor contravention.149
148
Referring to the subject: K. Hosokawa (note 2) at 141. K. Nakamura, Keihò
Penal Law), in ‘Lectures’ (note 5, vol. 9, p. 58. R. Ishii/W. Chambliss (note 2) at
197/254 and 287/356. Y. Tetsuka, Kokkateki keibatsuken to hikokkateki keibatsuken—
Meiji zenki no baai ni kansuru ichi miteikò (The Penal Authority of the State and of
Others—A Rough Draft About the Situation in the Early Meiji Era), in Keibatsu to
kokka kenryoku (Punishment and the Authority of the State), edited by the Hòseishigakkai
(Society for Legal History), p. 186 (1960). T. Uno, Ishiki kai’i jòrei, in Nihonrekishi
daijiten (note 113), vol. 1, at 283.
149
One sen was 1/100 yen, one rin = 1/10 sen = 1/1.000 yen, one mò = 1/100 sen.
When regarded from the present cost of living these sums seem to be so low that
it is hardly possible to convert them into today’s currency. However, in the early
Meiji years the fine could noticeably affect the household budget of the culprit. The
price of rice varied irrespective of time or locality and was, as such, not a reliable
gauge for comparison. To better exemplify this: in 1872 the Home Ministry fixed
the government expense for food and drink of an adult convict at an annual figure
of 16 yen 79 sen = 4 sen 6 rin per day. Nihon kinsei gyòkeishi kò (Notes on the History
of the Enforcement of Penalties in Japan’s Modern Age), ed. by Zaidan hòjin keimu
kyòkai (Foundation ‘Society for Prison Affairs’), vol. 2, p. 988 (1943).
administrative law
143
He who could not pay the fine for a major contravention was liable to
ten to twenty blows with the rod; if unable to pay the fine for a minor
contravention he might be placed in detention for one or two days.
Local regulations changed the substitute punishment into imprisonment
with hard labour as the police thought fit, Tokyo followed this course.
Prostitution150 was a perpetual matter of discussion in Japanese
social and legal history over many centuries.151 It had repeatedly been
dealt with in connection with the sale and purchase of persons ( jinshin
baibai ), a very old practice of slavery which repeatedly was forbidden
but never stopped.
Licenced and illicit prostitution in Edo/Tokyo and other cities
existed at the time of the Meiji restoration. Illicit prostitution occurred at
places outside definite localities and was a contravention prosecuted
by the police. Under the influence of progressive notions about human
rights the idea of banning the sale of persons began to ripen after the
restoration, and the Maria Luz incident152 induced the government to
enact, on 2 November 1872, order no. 295, under which the sale and
purchase of persons for ever or for a limited period was once more
generally forbidden.153 Simultaneously, the prostitutes were set free.154
On 9 November 1872 the Ministry of Justice issued a directive
150
There were diverse manifestations of prostitution and kinds of prostitutes.
The title of one of several books on the subject is Baishò sansennen shi (History
of Prostitution in Three Thousand Years), by T. Nakayama, 1927, revised by
M. Kyòguchi, 1956. In reality, the beginning of prostitution in Japan cannot be
dated. Its origin is traced back to the temple dancers. Early reference to prostitutes
appeared in the Manyòshù, a famous anthology of the 8th century AD. An image
of the prostitution in the Tokugawa era can be found in R. Ishii, Zoku Edo jidai
manpitsu (Miscellany on the Edo Period, Continued), chapters 15 and 16 (1961).—
A German essay on prostitution and antiprostitution in the Meiji era has been contributed by M. Neuss in ‘Oriens Extremus’ 26, pp. 85–94 (1979). M. Takikawa
has written a short ‘Legal History of Prostitution’ (Baishun hòsei shòshi), p. 23–741,
in the collection of his essays from 1923 to 1939 ‘Nihon hòseishi kenkyù’ (Study of
Japanese Legal History), 1941.
152
‘Maria Luz’ was the name of a Peruvian sailing ship with 230 Chinese coolies
aboard which entered the harbour of Yokohama on 9 July 1872. Coolies who
escaped exhibited traces of cruel treatment. Japanese authorities detained the ship,
and diplomatic quarrels were finally settled by the Russian emperor as the arbitrator in favour of Japan.
153
Text in Nakayama/Kyòguchi’s book (note 151) at 645–646.
154
Art. 4: “Prostitutes, female entertainers ( geigi or geisha), and others who were
constrained to serve for a fixed term will be emancipated. Loan actions relating to
this will not be admitted.” This provision aimed at persons who, as often practised,
had been disposed of by their needy folk for a limited period in order to pay off
a debt or to secure a loan.
151
144
public law
concerning the said emancipation.155 The directive mainly regulated
the financial consequences of the emancipation.
Art. 267 of the Amended Criminal Regulations (Kaitei ritsurei ) of
13 June 1873 included a provision about illicit prostitution, but this
was cancelled when on 12 January 1876 control and punishment of
prostitution was delegated to the metropolitan police and the chiefs
of the local authorities. The Home Ministry decreed that the correctional fine must not exceed thirty ¥, and the upper limit of disciplinary punishment was to be six months.
The (old) Criminal Code of 17 July 1880, influenced by French law
and enforced from 1 January 1882, renamed the major and minor
contraventions ‘police offences’ (ikeizai ). This was a flexible term
allowing specification according to local convenience (to be reported
to the Home Ministry).156 The first Japanese law governing the
criminal procedure, the Code of Criminal Instruction (Chizaihò) of
17 July 1880, also in force from 1 January 1882, ordained that police
offences were to be adjudicated by the Peace Court (chian saibansho)
in its function as the court for police offences (ikeizai saibansho). The
punishment was no more than a detention or a fine. But it seemed
to be hardly feasible to apply the same procedure to police offences
as to felonies or minor crimes. For that reason the government, prior
to the enforcement of the Code of Criminal Instruction, enacted a
law ( fukoku) under which no remedy whatsoever was admissible
against the judgement in the case of a police offence, although the
court proceedings had to go by the rules of the Code (law no. 44 of
20 September 1881). At the same time it was decreed that sentencing
in such cases was, except temporarily for the three urban prefectures (Tokyo, Kyoto, Osaka) and the five trading ports (Yokohama,
Kòbe, Nagasaki, Niigata, Hakodate), the duty of the police stations
of the prefectures and the branch stations (law no. 48); the said
exception was cancelled on 28 December 1881 (law no. 80).
These laws were repealed when, on 24 September 1885, the Summary Trial Regulations for Police Offences (ikeizai sokketsu rei ) were
enacted. Under this law the trial was conducted by the head official
of the police station or branch station or his substitute; the formal
court procedure need not be observed. The defendant was heard
and evidence considered. The decision was issued immediately. Appeal
155
156
Loc. cit. (note 153) at 646.
administrative law
145
to the court for police offences was admissible; this clause guaranteed
access to the judge in law under art. 24 of the Meiji constitution as
well as art. 32 of the constitution of 1947. The Summary Trial Regulations of 1885 remained in force through many decades; they were
repealed by art. 1 of the Law for the Enforcement of the Court
Organization Law (Saibanshohò shikòhò) of 16 April 1947.
Book IV of the old Criminal Code which dealt with the police
offences did not reappear in the new Criminal Code (Keihò) of 24
April 1907.157 Offences which should be dealt with under the aspect
of criminal law were integrated into Book 2 (“punishments”) of the
Code.158 The other police offences, now called keisatsuhan, were enumerated in an ordinance of the Home Ministry of 29 September
1908 (keisatsuhan shobatsu rei ) and divided into three categories according to the sanction:
(i) to be punished by detention = 4 items; among them “Anyone
who commits or procures or shelters illicit prostitution”,
(ii) to be punished by detention of less than 30 days or fine of less
than 20 ¥ = 37 items,
(iii) to be punished by a fine of less than 20 ¥ = 17 items.
This ordinance was repealed by the Minor Offence Law (Keihanzaihò)
of 2 May 1948. The new law does not contain any regulation for illicit
prostitution.159 The Law for the Prevention of Prostitution (Baishun
bòshi hò) of 24 May 1957160 formulates in a restrained proclamation
that it aims at controlling prostitution. The Law provides for punishment of prostitution in public and of connected offences such as
recruiting clients; procuring—in knowledge of the circumstances—a
place for practising prostitution; tricking a person into prostitution
or forcing or threatening; and other deeds.161
157
This code was influenced by German rather than French law.
They were not enumerated in a special section but discernible by the threat
of punishment: detentions or minor correctional fines ranged from one day to 29
days, fines (karyò) from 10 sen to less than 20 ¥.
159
Prostitution practice as such was not punishable. To canvass, aiming at profit, an
unhabitual woman for prostitution was an offence, art. 182 of the Criminal Code.
160
The law was the final victory of movements for the ban on licenced prostitution which had appeared sporadically since about 1600 AD and influenced regional
policies. K. Kanzaki, Haishò undò, (Movement for Abolishment of Public Prostitution),
in: Great Dictionary of Japanese History (note 113), vol. 15, pp. 69–70.
161
The said law deals also with health care.
158
146
public law
Anyhow, the pre-war general authority of the police to adjudicate
in cases of contraventions was discontinued. After 1945 there appeared a
correctional, non-penal fine162 in various laws which can be imposed by
administrative authorities. Non-penal punishments are sanctions (seisai )
against wrongdoers in order to uphold lawfulness,163 or to enforce
the fulfilment of a duty under administrative law,164 or as a disciplinary
measure.165 The authority to impose a sanction is frequently regulated
by the relevant law. If there are no special provisions about authority and procedure arts. 206 et seqq. of the Law of Procedure in
Noncontentious Matters (Hishòjiken tetsuzuki hò) of 21 June 1898 are
applicable.
The natural prerequisite of the authority to impose sanctions is
the control of illicit and licensed prostitution,166 in this respect the
police act as a vice squad.
Restrictive legislation brought about special duties for the police.
Mention should be made of the prohibition of slave trade (1872); regulations about books and newspapers, and the enforcement of censors’
decisions (Publication Law of 1893 and several preceding decrees
since 1868, Press Law of 1909 and preceding decrees); Libel Law of
1875—together with early newspaper press rules; Law for the Execution
of Administration (1900); and Peace Preservation Police Law (1900)
which replaced the Public Meeting and Political Party Law of 1890
and earlier regulations for public meetings and maintenance of peace,
and remained in force until 1945. This law167 and the notorious Law
for Maintenance of Public Peace (Chian iji hò ) of 1925 were the
means of oppression of actions seen to be politically dangerous by
the ruling circles.
The Police Law (Keisatsuhò) of 8 June 1954 was the final result of
the police system’s reform which had been initiated by the occupying
power after the end of the Pacific war (World War II). The objective
Karyò, vocally like karyò = penal fine (see note 158), but dissimilar in writing.
E.g. Commercial Code arts. 18 and 22: misleading firm name.
164
E.g. River Law art. 53: negligence of a private individual in carrying out
duties under the River Law or subsequent ordinances.
165
Against a judge: Law Concerning the Status of Judges, art. 2.
166
There were also regulations in the field of licensed prostitution which, if violated, incurred the risk of a sanction.
167
Under its art. 17 labour movements and peasants’ movements were forbidden. However, it was cancelled in 1926 when, in the Taishò era, the opposition
against that clause grew fierce and the Law for Maintenance of Public Peace took
care of the subject.
162
163
administrative law
147
had been to decentralize and democratize the police force as well
as to cut back its authoritarian bearing which had exercised control
over the populace. In order to supervise the police work ‘Public
Safety Commissions’ (kòan i’inkai ) were installed at national and
regional/local level.168 When the occupying power no longer kept an
eye on Japanese legislation, the Japanese checked the laws of the
past years as to suitability for a system that would, in their view, be
suited to current requirements.
Art. 2 of the Police Law of 1954 describes the duties of the police
as follows: “to protect the life, health, and property of the individual; to prevent, suppress, and investigate crimes; to control the traffic;
and to attend to other matters concerning the maintenance of public safety and order”. Additionally para 2 of art. 2 says that the
activity of the police must be strictly limited to the scope of the
aforesaid duties, and that it may not aim at the suspension of impartiality and neutrality, nor ever misuse its authority by interfering with
the rights and freedom of the individual as guaranteed under the
Constitution of Japan. When, for the first time, a Law for Administrative Procedure (Gyòsei tetsuzuki hò )169 was created, the activity of the
police also had to follow this law, except in cases where penal laws
stipulate police tasks.
The Law Governing the Execution of the Policemen’s Duties
(Keisatsukan shokumu shikkò hò ) of 12 July 1948 remains virtually
unchanged. It is the legal foundation of police authority.
c) The area of responsibility of the police was, as cited above, defined
by rather general terms like ‘to safeguard the property of the people
and their health’, or ‘to check dissipation and debauchery’, or ‘to
protect the lives of the people’, and, finally, ‘to attend to other matters
concerning the maintenance of public safety and order’. The particulars are regulated by specified orders, instructions, directions, and
similar rules.
Such rules were abundant in the Tokugawa era (1603–1867). Keigo
Kiyoura, director of the Police Bureau of the Home Ministry from
1884 to 1891, undertook the taxing work of systemizing those rules.
His record was not printed, and the manuscript was destroyed by fire
during the earthquake of 1923. Other materials enabled the Ministry
168
For the development of the legislation after 1945 see P. Schneider (note 119),
at 42 et seqq.
169
Enacted in 1993, enforced from 1 October 1994.
148
public law
to compile the ‘History of the Police in the Tokugawa Era’ and to
publish it in 1927.170 Although the terminology has been brought into
line with modern usage and some phenomena have fallen into oblivion, the arrangement of the scattered items presents an overall view
of police business up to the end of the pre-Meiji period. With the
exception of local conditions in the domains, the state of things in
1867 continued after the restoration, and the details can be ordered
under the general terms used in later definitions of police duties.
The thirty sections of this ‘History’ deal with fire; antique dealers,
pawnshops, stolen goods, lost articles, treasure trove; gambling;
inquests, runaways, inns, travellers, domestics, hostages, homeless
samurai (also vagrants), persons long separated from house and folks;
manners; religious attitude; festivals; publications; unnatural death,
diseases, wounds, deformities, abandoned children; beggars, outcasts,
pariahs, homeless persons; forests; provisions for emergencies; guns;
expenses, interposing in matters of taxes and tributes (after fire or
water damage); oxen- or horse-drawn vehicles, loads, handcarts; bounties; buildings; bird-catching, fishing, trade in animals and birds;
fields; health; weights and measures; clothes; highways; water police;
judicial police; matters of state and public peace; foreign relations;
basic laws and institutions.171
Many items on the list are not orders for the police but general
rules or regulations for the people, the obedience of which was controlled and enforced by the police. The business of the administrative
police could, under modern terms, be divided into special branches:
traffic police, health police, river/harbour police, vice squad, building
control department, and so on. Such naming of divisions according
to their functions or duties was, apart from the roughly separated
administrative and judicial police, special and special higher police,172
not in general use.
The new legal system after 1945 introduced more detailed subdi170
Tokugawa jidai keisatsu enkakushi, 2 volumes of 1020 and 874 pages.
The headings of the sections do not always indicate in detail all the subjects
of the relevant sections. E.g. the three parts of the section ‘manners’ are a treasury
of social habits and occurrences.
172
See note 138. Also the peace police under the Peace Police Law (Chian keisatsu
hò) of 1900, a law for the control of public meetings, (secret) associations, and mass
movements, belongs here. Several enactments had preceded this law. It was a
significant piece of police legislation which, on the whole and mainly during the
three decades prior to the end of World War II, escalated into the establishment of
the ‘police state’. The law was repealed in 1945. S. Wagatsuma (note 90) at 648.
171
administrative law
149
visions of the police. Traffic police,173 constabulary,174 and public
peace police175 appeared, for example. Scientists combined specific
features of the police business in ‘vice squad’ ( fùzoku keisatsu), ‘trade
police’ (eigyò keisatsu), ‘health police’ (eisei keisatsu). In the wording of
the laws we often find the term ‘the competent (or responsible) officer’
(tògaikan) which, in many cases, means the policeman, especially when
the law deals with ‘control’ (torishimari ). The term was already used
in the Meiji period, as in the Law for the Execution of Administration
(Gyòsei shikkò hò ) of 2 June 1900 by which the authority of the police
as a proxy of an administrative office was defined in detail relating
to detention (protective arrest of drunkards, lunatics, and persons
attempting suicide; preventive arrest of persons who might endanger the public peace by acts of violence), provisional custody (retaining for safe keeping any weapons and arms belonging to drunkards,
lunatics, persons planning suicide, and the like), to the banning of
raids on private residences between sunset and sunrise, compulsory
health examination and detention of illicit prostitutes, the use of land
and goods for sanitation purposes, and the prevention of injury in
the wake of natural calamities.176 The rather wide range of police
operations made misuse possible and did not sufficiently secure human
rights. Therefore, that law was repealed by the Law for Administrative
Execution by Proxy (Gyòsei daishikkò hò ) of 15 May 1948. On 12 July
1948 the Law for the Performance of the Duties of the Police Officers
(Keisatsukan shokumu shikkò hò )177 was enacted. This law regulates the
173
Kòtsù keisatsu, Police Law art. 23–2.
Keibi keisatsu, Police Law art. 24.
175
Hoan keisatsu, Police Law art. 23 para. 1 no. 5. This section is not simply a
successor of the peace police (see note 172). The hoan keisatsu is responsible for control of all matters regarding speech, meetings, societies, elections, as well as for
police duties concerning individuals (e.g. mentally ill persons), things (e.g. dangerous cargo), and activities endangering the public peace. Police work must strictly
observe the rights of the people guaranteed by the Constitution.
176
177
The original title of the Law was “. . . . of the Police Officers and Others”
(Keisatsukan tò. . . .), ‘others’ indicating that there were two kinds of police officers:
keisatsukan = officer of the state-run regional police (kokka chihô keisatsu, and keisatsu’in
= officer of the police force run by the local self-government unit ( jichitai keisatsu),
a system introduced at the instigation of the occupying forces in order to decentralize the police. The state-run regional police operated in areas where a small
self-government unit, following an inhabitants’ vote, did not keep a local police.
See S. Wagatsuma (note 90) under the relevant headings as named in the text
above, p. 162, 327, 403. The cancellation of the ‘others’ (-tò ) by an amendment of
1954 was the consequence of the re-establishment of the state-run central police in
the early fifties after the end of the occupation. M. Scheer, Verwaltungsrecht
174
150
public law
methods of police actions: questioning, protection, precaution, prevention and control of crimes, access, use of weapons, and calls particular attention to the execution of duties imposed by the Code of
Criminal Procedure, and other laws and regulations.178 It constitutes
the legal base of the policemen’s authority.
3. ‘Providing’ administration includes those activities of public
authorities which, in principle without using force or means of coercion, supports the nation’s common welfare in various areas of life.
While in the pre-Meiji period the promotion of culture,179 learning,
economy etc. was in the hands of the daimyò and their clans, the
new central government took over—at least parts of—the responsibility
for the progress, especially since it became the national political aim
to catch up with the lifestyle in western countries.180
The Constitution of 1889 did not deal with subsidies for cultural
purposes. It was a matter of course that shrines and temples gained
state protection, and Shintò and Buddhist priests were honored by
the state. Financial contributions by the state to charitable and educational undertakings were not prohibited, and at a much later date
social undertakings could be supported by public means under the
Social Undertakings Law (Shakai jigyò hò ) of 1938. This law was
repealed by the additional clause no. 2 to the Social Welfare Service
Law (Shakai fukushi jigyò hò ) of 29 March 1951 which regulated the
organization of the social welfare service, its duties, the control, and
financing (among other means: subsidy or loans from public funds).
Education and science always enjoyed attention and support from
central and regional governments apart from religious institutions.
Schools and academies established by the Shogunate,181 by the daimyò
(Administrative Law), in P. Eubel et al., Das japanische Rechtssystem (The Japanese
Legal System), pp. 88–89 (1979).
178
A helpful summary of laws for police organization and police work in the
first decade after 1945 was presented in the periodical Jurisuto ( Jurist) no. 100 (1956)
by J. Tagami, Keisatsu soshiki (Police Organization), pp. 48–50, and Keisatsu tori-shimari
hòki (Laws and Regulations for Police Control), pp. 51–53.
179
Japanese bunka means ‘culture’ and ‘civilization’. To make a distinction between
these two terms is a peculiarity of German philosophy of culture.
180
This aim cannot easily be achieved if we understand ‘culture’ to be the evolved
customs and attainments of a particular ethnic group. The government of a nation,
being conscious of tradition, is inclined to think its duty is to preserve relicts of the
past. In all ages the Japanese central and regional rulers as well as the temples
regarded this as a matter of concern. An early representative was the storehouse
Shòsòin of the temple Tòdaiji in Nara, founded in 756 by the empress dowager
Kòmyò and, in the course of centuries, filled with many treasures.
181
The first one was the Shòheizaka gakumonjo (abbr. Shòheikò) in 1630 in Edo.
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in their respective territory,182 private schools,183 citizen’s schools,184
village schools,185 and temple schools186 existed in 1868.187 Besides,
religious organizations maintained educational institutions. Whenever
schools were founded and kept by the bakufu, or a feudal lord, or
financed from public funds, the administration was engaged.
After the Meiji restoration the feudal system was superseded by a
modern capitalistic system improved by a progressive policy. A new
organization of education was created. The Meiji government took
over the Shòheikò,188 renamed it Shòheigakkò, then Daigaku (college), and
closed it in 1871. One year later, under a law called Gakusei (System
of Education, much influenced by the French system), the educational
scene was divided into school districts: eight, then seven college districts, 256 middle school districts, and 53.760 elementary school districts. The plan was to set up one school of each respective type in
every district. Special schools followed: e.g. girls’ schools, teacher
training colleges, schools for foreign languages, infants’ schools, blind
and dumb schools, higher middle schools (later: higher schools), schools
for military education. All these were state run schools, just as the
national universities which were established from 1877 on. They were
part of the administration of the central state, or of the regional or
urban authorities depending on the founder or supporter.189 The
Schools under the control of the bakufu followed in directly administrated provinces.
Afterwards, special schools were founded: Wagaku kòdansho in 1793 (fields: national
history, law, compilation of historical material), Igakukan in 1857 (western medicine),
military schools in the fifties and sixties shortly before the Meiji restoration.
182
Hankò or hangaku meant, in the broader sense, all schools managed by the
domain authorities; in the narrow sense mainly schools which taught Chinese characters and let the students have cultural refinement. The principle of these schools
was to admit the followers of the clan samurai, these schools are usually alluded to
when the term hangaku appears. Their number had increased to 255.
183
Founded and run by scholars.
184
Founded and run by citizens: Kaitokudò in Osaka.
185
Gògaku = schools which were established by a daimyò or interested persons of
the locality in order to educate common people as well as samurai, something in
between the hankò and the terakoya. The subjects of teaching were, as a rule, reading, writing, sums, in lower, middle, and upper courses. The number of these schools
amounted to about 500.
186
Terakoya = literally temple or monastic school; the name brings its origin to
mind. In the Edo period the terakoya were the elementary schools for the common
people and are the forerunners of the primary schools of today. In many cases the
terakoya, were protected and supported by the bakufu or the domain governments.
187
For details of the pre-modern school system see encyclopedias and dictionaries under the respective terms given above.
188
See note 181.
189
Prior to the Meiji period there was no compulsory school attendance for all
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responsibility for the administration of public schools continued
unchanged; after World War II the School Education Law (Gakkò
kyòiku hò ) of 31 March 1947 split up the schools into national (kokuritsu), communal (kòritsu) and private (shiritsu) schools (art. 2), and
imposed the expenses on the respective operator.190
The affairs of the providing administration go far beyond the educational sphere. Other cultural matters, public health, economy are
further fields in which the administration supports enterprises for the
public benefit.
Attention should be paid to the relation of the administration to
religion. In past times religious institutions enjoyed the support of
the state. The state subsidized Shintoist shrines and Buddhist temples
according to their rank or importance, and the Tokugawa rulers raised
the Confucian thinking to the ideological basis of the view of life and
to the fundamentals of the state. By the 16th century Buddhism had
gained the upper hand over Shintoism and Confucianism, but in the
Edo period a return to original Japanese values and an intellectual
movement to turn to old notions and observances developed. Thereby
the Shintoism, without encroaching upon Confucian teachings, became
the dominant religious course and, beyond religion, a political factor
promoting the Japanese nationalism which reached its totalitarian
height in the first decades of the 20th century. The old idea ‘saisei
itchi’ (identity of Shinto cult and government) was revived, and the
imperial administration endeavoured to translate it into reality. In
the first ruling body, the Three Offices, the Shinto Section ( jingi
jimuka) was at the top. The ‘section’ was renamed ‘secretariat’ (kyoku),
then ‘office’ (kan) and ‘ministry’ (shò ). When on 11 June 1868 the first
dajòkan system was established the Executive Office ( gyòseikan) moved
up to first place, but from August 1869 the Shinto Office was posi-
children. The ‘System of Education’ of 5 September 1872 (see above) said: without distinction between samurai, farmers, craftsmen, tradesmen, and women “in a
community there shall not be any (extended) family lacking education, and the family should see to it that none of its members will be devoid of education”. In addition, the law announced that children, without distinction between boys and girls,
should be urged to attend the elementary school, and absence would be regarded
as a fault of the father and elder brother.
190
Under the Private School Law (Shiritsu gakkò hò) of 15 December 1949 the
operator of a private school must be an artificial (ficticious, juristic, or legal, juridical)
person ( gakkò hòjin), and a nonprofit foundation. The state and the regional public
entity can grant financial assistance (art. 59). The authorities have the right of control to a certain extent.
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tioned over the dajòkan. On 21 April 1872 the Ministry of Religion
(kyòbushò ) was set up within the third type of the dajòkan, it was
responsible for the administration of Shinto191 and Buddhist affairs.
That ministry was closed in January 1877, and its duties were transferred to the Home Ministry (naimushò ), Shrines and Temples
Secretariat (shajikyoku). Soon afterwards the government made a distinction in Shinto (= ‘way of the gods’) between ‘Shrine Shinto’ ( jinja
shintò) and ‘Sect Shinto’ (kyòka shintò ). Shrine Shinto lost its religious
character and became the stronghold of nationalism: worship of the
ancestral gods, consequently of the heavenly ancestors of the Tenno
and his divinity, and with it the expression of loyalty to him, his
reign, the dynasty, the state, and the national polity (kokutai ). Among
the numerous shrines those of imperial and state (official) affiliation
were supported and controlled by the administration. The sect shrines
belonged to the Shinto sects and did not receive any benefits from the
state. The Buddhist institutions were also excluded from official support, and in 1900 the Shrines and Temples Secretariat became the
‘Shrine Secretariat’ ( jinjakyoku). The identity of Shinto cult and government had been reduced to the Shrine Shinto. The separation of
Shrine Shinto from religious belief must be taken into consideration
when reading art. 28 of the Meiji Constitution.192 After Shrine Shinto
had lost its religious nature it was regarded as a nationalistic duty
to adhere to the official cult. In this respect there was no room for
religious freedom. A manifestation of that development was the founding of the Religion Secretariat (shùkyòkyoku) in addition to the Shrine
Secretariat. The Religion Secretariat dealt with the affairs of the true
religious groups, organizations, and institutions. Later on, this secretariat was taken over by the Education Ministry (Monbushò ) and was
renamed Religious Affairs Secretariat (shùmukyoku, from 1913 shùkyòkyoku),
which also controlled the once outlawed Christians.
Through the decades many regulations concerning religious institutions and activities were issued. No sooner than in 1939 a uniform
basic code, the Religious Organization Law (Shùkyò dantai hò), was
enacted. It defined the legal position of religious groups (naturally,
191
The ceremonies were the business of an office in the imperial court. The ministry dealt with the sects, shrines, priests, and their concerns. The Buddhist affairs
were added because the people preferred to find their private spiritual salvation or
welfare in Buddhism and became restless owing to the official preference of Shinto.
192
See p. 65.
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other than that of Shrine Shinto), their status as artificial persons, and
their protection and supervision. In art. 10 of the Potsdam Declaration
of 26 July 1945, accepted by Japan on 14 August 1945, the victorious
powers demanded freedom of creed and thought. Consequently, state
and religion were separated. As a matter of course, Shrine Shinto
was included, although it was neither creed nor thought in the original
meaning, but rather a nationalistic behaviour imposed on the people.
Soon after the end of World War II the Religious Organization Law
was replaced by an imperial order about religious groups as artificial
persons. Religious institutions had previously been artificial persons
(see above), and as such they should have come under the rules of
the Civil Code for artificial persons (hòjin, Civil Code arts. 33 to 84),
but art. 28 of the Civil Code Enforcement Law (Minpò shikkò hò ) made
them exempt from the applicability of the Civil Code. This article
was then repealed, and the religious artificial persons were treated
like the other ones. The Constitution of 1947 strengthened the separation of religion from the state (arts. 20 and 89).193
The legal status of the shrines belonging to Shrine Shinto had not
been clearly defined. On the one hand they were classed as artificial
persons—otherwise it would have been meaningless to exempt them
from the provisions of the Civil Code (see above), on the other hand,
just for that reason, they and the other institutions named in art. 28
of the Civil Code Enforcement Law were not artificial persons. The
jurists classified those shrines as foundational juridical (or artificial)
persons under public law (kòhòjò no eizòbutsuhòjin; German: Anstalt des
öffentlichen Rechts).194
On 3 April 1950 the Artificial Religious Persons Law (Shùkyò hòjin
hò ) was enacted. Its purpose is to bestow legal capacity on religious
organizations in order that they may conduce to owning institutions
for worship and other property, maintaining and using them, moreover,
conducting business and operations so that the aforesaid purposes
may be attained (art. 1). The Law deals with the creation of an
artificial person, its regulations, management of its affairs, amalgamation,
liquidation, and registration. A religious organization is not automatically
an artificial person; approval of the regulations by the responsible
193
The ban on expending public money for religious organizations has been
repeated in art. 230 of the Local Autonomy Law (Chihò jichi hò) of 17 April 1947.
194
S. Wagatsuma (note 90) at 446 under ‘Shùkyò hòjin’.
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155
authority and registration are required. No provision of the Law may
be interpreted or applied if the freedom of religion guaranteed by
the Constitution would be infringed thereby.195
D
I. Civil servants are the persons who perform the civil administration.
The new Meiji government was confronted with the age-old system
of public service which had been made indistinct by the fact that the
bakufu and the feudal domains had service structures of their own. The
new government kept to the Tenno-centred system and endeavoured
to modernize it. Under the old system196 the status of a civil servant
(kanri ) was, in principle, related to a court rank. This relation was
regulated by a chart ‘kan’i sòtò ’ (correlation of office and court rank).197
The chart listed eight court ranks, each of them subdivided into primary and secondary rank, most of which were further subdivided into
upper and lower grades. Additionally, in some offices there were two
‘entrance classes’ = four grades for the lowest officials. The corresponding officials of the various offices were appended. Since this
system had been created in the ancient period of direct imperial
reign its importance was reduced when the military class gained control and founded their own government (bakufu) at the end of the 12th
century, and the feudal domains developed their semi-independence.
The Meiji government took up the ancient imperial authority, and
also, for the time being, the chart on the correlation of office and
court rank which was reintroduced in August 1869 in connection
with the Government Officials Order (Shokuinrei ) which reorganized
the government system and established type II of the dajòkan, (see
195
There is much literature about religion in the modern age, and the shrine shinto,
though no longer existent, has repeatedly been a subject of political discussion (cue:
Yasukuni shrine).—General depiction of the history of religion in Japan (creed and
official supervision): W. Gundert, Japanische Religionsgeschichte (History of Japanese
Religion), 1935/1943.—H. Takaki, Shùkyòhò (Law of Religion), covering the period
from 1868 to 1939, in: History of the Development of Japanese Modern Law (note
48), vol. 7, 1959, pp. 1–36.—See also dictionaries of history and law.
196
Short explanation in R. Ishii (ed.), Nihon hòseishi ( Japanese Legal History), pp.
151–153 (1959). M. Scheer, Grundzüge des Rechts des öffentlichen Dienstes in
Japan (Basic Law of Civil Service in Japan), pp. 29–39 (1977); the main part of
this book attends to present law and is a most comprehensive description.
197
Requisite for Reading History (note 88) at 536.
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chapter ‘Notes on the Staff of the Ministry of Justice’). The Shokuinrei
was modelled on the Shokuinryò, the collective name of several regulations
governing the organization of the public service, proclaimed in the 8th
century.198 But the new chart was repealed on 24 September 1871 and
succeeded by a chart of fifteen classes or ranks (tò )199 which tabulated
the officials of each government department200 according to their
class. Not all offices were staffed in every class.201 The officials classified
in this way were kanri = a term for persons who were appointed by
the emperor or a functionary legally empowered to appoint and promote. Besides these, there were employees under contract. The
classification of the officials regulated their appointment: those of
classes 1 to 3 were appointed by the Tenno at his own will (chokuninkan);
those of classes 4 to 7 by the Tenno granting an application of a
minister, a governor, and, from 1886, of the cabinet (sòninkan); those
of the classes 8 to 15 by the minister or chief of another high unit
of administration (hanninkan). The appointment by a balloting procedure as provided for in the Document of the Governmental System
(Seitaisho)202 had been executed only once in 1869 and limited to the
highest officials of the government; the voters were of the third and
higher court ranks.203 Because of practical difficulties, and the consideration that the officials should be appointed by the emperor or
in his name, the balloting system was abolished in July 1869.
While in the early Meiji era the pedigree of a man, his affiliation to
one of the anti-Tokugawa clans (mainly Satsuma, Chòshù, Tosa, Hizen),
and meditorious contribution to the re-establishment of the Tenno’s
authority played a part in appointing a person to a public office, the
198
K. Maki, Nihon hòseishi ron, chòteihò jidai jòkan (Study of Japanese Legal History,
Era of Imperial Court Law, First volume), at 269 (1921).
199
Requisite for Reading History (note 88) at 544 et seqq.
200
Including the military and the prefectures.
201
E.g. Home Ministry: 1st class = minister
2nd class = senior vice minister
3rd class = junior vice minister
4th class = senior secretary
5th class = junior secretary
6th class = no corresponding post
7th class = no corresponding post
8th class = senior administrator
9th class = assistant to senior administrator
10th–13th class = middle and junior administrators and
their assistants
14th–15th class = no corresponding posts.
202
See supra note 19 and section II of the chapter ‘Constitutional Law’.
203
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157
ability of a candidate, acquired by studying at a university or by
passing a newly created state examination, became more and more
necessary. This development went along with the practice of also
admitting commoners to official positions. In the first Meiji years
incumbent officials and their descendants were treated like members
of the samurai class who were favoured under the early penal laws.204
No sooner had the cabinet system been established in 1885, than
the ordinance on Regulations Concerning Examination, Probation,
and Training of Civil Officials (Bunkan205 shiken shiho oyobi minarai kisoku)
of 25 July 1887 was enacted. The sònin officials had to pass the
higher civil service examination (kòtò shiken) and then complete a
period as trainees (shiho).
The hannin officials had to take the ordinary service examination
( futsù shiken); their subsequent training was called minarai (learning
by observation). Persons who had visited a government school had
the privilege of appointment without such examination. Therefore,
in every ministry the group of sònin officials was occupied by men
who had been educated at a government school. While heretofore the
clan faction was most influential, now the “evil” of academic cliquism
came into effect.206 In order to counteract that development the government annulled the privilege and, in October 1893, enacted the
Civil Service Appointment Ordinance (Bunkan nin’yò rei ) under which
the appointment required the passing of the examination—officials
who were appointed by the Tenno directly (chokuninkan) were the only
possible exemptions. But at the end of the 19th century the influence
of political parties grew stronger;207 this had an effect on the selection
of chokuninkan since, as a matter of course, the government had to give
advice to the Tenno. The result was that members of the Progressive
Party, founded on 1 March 1896, the leader of which, S. Òkuma,
was foreign minister in the second Matsukata cabinet (September
1896–January 1898), occupied many posts of the chokunin group: vice
204
Bunkan was the general denomination for any official of sònin or hannin rank.
206
R. Ishii (note 196) at 152.
207
S. Òkuma formed the first party cabinet on 30 June 1898. He had merged
the Progressive Party with T. Itagaki’s Liberal Party into the Constitutional Party.
In that short-lived cabinet Itagaki was the Home Minister. The cabinet was called
Waihan-cabinet (waihan = Chinese reading of parts of the ministers’ names: wai =
kuma, han = ita). It should be noted that those top politicians came from two of the
four clans which were the most powerful supporters of the restoration and, subsequently, the dominant political coterie for many years.
205
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ministers, chiefs of secretariats (kyoku), and governors of a prefecture.
This situation did not correspond to the spirit of art. XIX of the
Constitution. A. Yamagata who, on 8 November 1898, succeeded
Òkuma as prime minister, determined to protect the bureaucratic
citadel from party influence and issued an imperial ordinance in
March 1899 in order to block the post-hunting of fellow party members. By this ordinance the Civil Service Appointment Ordinance
was largely amended; the chokunin officials were henceforth required, as
a general rule, to meet one of the following requirements: (1) to be
or have been a higher official of the third class and being or having
been in an office with sònin rank, (2) to have served at least one year
as a chokunin official, (3) to have served as a chokunin official and to
possess a higher examination certificate, (4) to be or have been as a
chokunin appointee in the office of public prosecutor for two years. This
did not apply to officials who were to be appointed in a special ceremony by the emperor in person (shinninkan),208 nor to special
appointees.209
The Civil Service Appointment Ordinance was amended several
times and, on 1 August 1913, issued in a new version, which again
was repeatedly amended and finally repealed after the end of World
War II.
Under the Meiji Constitution the officials (kanri ) were regarded as
‘officials of the emperor’ (tennò no kanri ), a term that was, combined
with the notion of social status and officialdom, the foundation of the
administration in opposition to the diet and the people. The system
was not democratic, and, from a legal point of view, it worked as
a varied and complicated entity lacking a fundamental law. All in
all, it was not able to meet the demands of modern administration.
Therefore, it also came under the reform of the constitutional structure after 1945.210
As early as on 3 November 1945 the cabinet (Prime Minister K.
Shidehara) passed a draft concerning the reform of the civil service.
Significant points therein were briefly:
208
E.g. the prime minister, state ministers, president of the Supreme Court,
ambassador plenipotentiary.
209
E.g. hanninkan of many years’ standing who had not passed the higher civil
service examination. Under this exception persons whose fate was directly linked
with that of the cabinet could be appointed officials.
210
For the first steps see T. Satò, Kuni no kòmuin seido (System of the Civil Servants
of the State), in Jurisuto ( Jurist) no. 100 (1956) pp. 28–32.
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159
– Unification of civil servants’ denomination, viz. three groups: administrative, educating, technical officials.
– Separation of official and post. Formerly, the denomination of an
official included his actual post.
– Abolishment of the division into chokuninkan, sòninkan, and hanninkan;
instead: 1st, 2nd, and 3rd class.
– Unification of the salary regulations.
– Restraint of change of post: generally after two years at the earliest.
– Expansion of appointment by selection.
– Reform of exam regulations.
– Expansion of training.
– Strict enforcement of the system of ‘sure penalty and certain reward’.
Observation, service record.
The immediate result of these suggestions were two ordinances:
Ordinance Concerning Appointment and Classification of Officials
(Kanri nin’yò jokyù rei ) and Ordinance Concerning Salary of Officials
(Kanri hòkyù rei ), enforced from 1 April 1946.
This mini-reform did not come up with the expectations of an
innovation. On request of the government an American advisory team
investigated the Japanese civil service system, regarded it to be in
need of urgent reform, and proposed to set up a powerful central
personnel organ as well as to enact a basic law for the national civil
service aiming at a democratic merit-system and promotion according
to efficiency. The team presented the draft of such a law, the cabinet
altered several clauses, and the diet passed—with slight modifications—
the National Public Service Law (Kokka kòmuin hò ) of 21 October
1947, enforced from 1 July 1948.211 This piece of legislation, influenced
by American views, is just a basic law, the gist of which is the introduction of a regulated personnel management with the focus on position classification, under which the former system was completely
changed; moreover, the establishment—within the competence of the
cabinet—of the National Personnel Authority ( jinji’in) responsible for
the implementation of the Law, vested with far-reaching power and
committed to reporting to the prime minister. As it is a basic law
211
The term kòmuin (person belonging to the public service) includes the hired
personnel.—Several groups of officials, e.g. ministers, judges, public prosecutors, top
diplomats, diet officials, are generally exempt from the application of this law (art.
2 para 3 and 5); special laws regulate their position.
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details have been regulated in many subsequent laws and mainly
ordinances issued by the National Personnel Authority.
All public servants are no longer ‘officials of the emperor’ but of
the whole community, art. 15 para 2 of the Constitution of 1947.
The public servants of the local public entities are subject to the
Local Public Service Law (Chihò kòmuin hò) of 13 December 1951.
II. In the preceding feudal era the essence of being a civil servant
went with the nature of vassalage: loyalty, faithfulness, obedience.
The functionary was an official of the bakufu, or his feudal lord, or
superior in office. The scale of the administrative offices extended
under the Meiji government, and the number of officials increased.
Working rules to be understood by officials became a matter of
course. In April 1873 the government decreed:
Officials may not at will give information to a newspaper on matters
which, even if small ones, could obstruct the business of the office or
disturb the friendly intercourse with foreign nations.
Two years later, the decree was widened to all state affairs and to
other press organs—except public notices in the official gazette. In
April 1876 the government prohibited trading by the official and his
family registered with him.
Those decrees212 were single prohibitions concerning the conduct
of officials. On 27 July 1882 the government decided on Administration
Officials’ Service Rules (Gyòsei kanri fukumu kiritsu) which were sent to
all courts of law, central and local offices. This notification began
as follows:
These are rules outside the penal laws; they show the manner of being
serious about discipline and self-restraint. Administration officials as
organs of the government are the origin of guiding the people, and
appropriately special rules are given the spirit of which shall be maintained and the duties strictly clarified.
The twelve articles of the rules dealt with obedience to the laws and
service regulations of the respective department, obedience to the orders
of the prime minister or the chief of the department, strict adherence
to the duties with regard to integrity, a ban on other paid activities,
and a ban on receiving gifts from other persons. The rules also applied
212
K. Hosokawa (note 2) at 64–65.
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161
to the judicial officials, however, there were two exceptions: the judge
was exempt from the provision that required the civil servant to follow the orders of his competent superior when discharging his duties,
and both the judge and the public prosecutor were absolutely barred
from accepting any gifts in connection with their work.213
On 30 July 1882 these rules were reformed. An imperial ordinance
called Officials’ Service Rules (Kanri fukumu kiritsu) was issued. Under
this ordinance the official
– had, principally, to work loyally for the emperor and his government, and so obeying the laws and ordinances, exert himself in
discharging his duties,
– had to obey the orders of his superior concerning his service, but
was permitted to utter his opinion on it,
– must, on official business and privately, value his integrity with
esteem and abstain from indecorous conduct,
– was forbidden to misuse his authority on official business and privately, and must perform his duty sincerely and in an appropriate
fashion,
– was forbidden to disclose official secrets concerning his own work
or that of another officer of which he had been informed; this
applied also to retired persons,
– as a witness or expert in court, had to obtain permission from the
chief of his office in order to make a statement about an official
secret,
– was forbidden to disclose privately a yet to be engrossed document
to a person concerned,
– may, unless permitted by the chief of his office, not leave his duties
nor give up his official residence at will,
– may, unless permitted by the chief of his office, not become the
president or director of a business firm.
Additional clauses dealt with corruption in several detailed manifestations, decorations, commerce, trade (also by family members).
These Officials’ Service Rules were applicable to all persons who,
being salaried, worked in the public service (art. 17).
Service Rules of this kind became part of the postwar National
Public Service Law (arts. 96–106) and—correspondingly—of the Local
213
R. Ishii/W. Chambliss (note 2) at 368–369, 441.
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Public Service Law (Chihò kòmuin hò) of 13 December 1950 (arts.
30–38). New items of the rules were political activities, unions and
organizations. The civil servant must swear an oath to obey the rules.
Similarly, the officials of the regional/local self-governing bodies214
were also subject to rules of conduct.
Breach of duty was punishable under penal law215 or disciplinary
law. By a government decree of 14 April 1876 certain offences by
officials were removed from the sphere of criminal culpability; in
place of that jurisdiction the chief of the office was empowered to
impose disciplinary measures: reprimand, docking, and dismissal.216
On 28 March 1899 an imperial ‘Ordinance About the Status of
Civil Servants’ (Bunkan bungen rei ) was enacted. It regulated the dismissal of an ordinary official, i.e. except shinninkan (see supra note
208), diplomats, private secretaries, and officials whose status was
regulated by special laws. An official could only be dismissed if he
had, to that effect, been sentenced under penal law, or disciplined,
or if one of the following facts were true:
214
These were the ordinary officials (kanri ) and special officials entrusted with
particular duties or technical work (ri’in).
215
Penal Code of 1907, Official Corruption (misuse of power, taking bribes), arts.
193 et seqq. The early penal laws of the Meiji period (Provisional Penal Code of
1868, Outlines of the New Criminal Law of 1870, Amended Criminal Regulations
of 1873) contained provisions for officials under various aspects, the outstanding
offence being venality. R. Ishii/W. Chambliss (note 2), at 270–284/335–353 passim. K. Hosokawa (note 2), at 237 et seqq. passim.
216
R. Ishii/W. Chambliss (note 2), at 179/233–234.—Before the Meiji period
‘house arrest’ (kinshin) was a punishment for samurai and persons of a higher class
who had offended their lord. Originally, the term meant ‘repentance, self-reproach,
pondering on good behaviour’, the proper atmosphere to reflect on manners was
seclusion at home. In the Meiji period this practice survived as a kind of substitute
punishment. The Outlines of the New Criminal Law intended house arrest for (ex-)
samurai if the law threatened the offender with whipping. The Amended Criminal
Regulations abolished the term ‘house arrest’ and integrated it into ‘imprisonment’,
but it appeared again in the Ordinance on Disciplinary Punishment of Noblemen (kazoku
chòkai rei ) of 1876.—Also officials having neglected their duty could be punished by
house arrest. In practice the official submitted a written self-incrimination to his
superior and imposed house arrest on himself until the superior decided about the
affair: shintai ukagai = literally: question whether he could pursue his career or should
retire from office. That practice was still alive in the 20th century. An early example after the Meiji restoration has been reported by M. Watabe: in 1869 Shigenobu
Òkuma, a then top ministry official (prime minister in 1898 and 1914–1916) was
not able to attend the birthday ceremony of the emperor because of illness. He
confessed to have “forgotten” to appear and submitted a shintai ukagai. M. Watabe,
Genkò hòritsugo no shiteki kòsatsu (Historical Reflection on the Present Legal Terms),
kinshin pp. 119–120 and 137–138, shintai ukagai pp. 61–62 (1930).
administrative law
163
– inability to perform his duties because of deformity, or chronic
disease, or corporal or mental debility,
– at his request grounded on inability to perform his duties because
of a wound or sickness, or at his own convenience,
– the existence of supernumeraries because of a change in the office’s
organization or the fixed number of officials.
In the case of the first of the three facts disciplinary committees had
to be involved, one in the case of a higher official, another in the
case of other officials.
Under certain circumstances an official could be suspended, e.g.
when he was indicted for a criminal offence.
Maintenance in return for faithful service was the standard practice
in the feudal system since the Middle Ages.217 Salary and pension
were granted in the form of land tenure or rice. Under the new
government the public servants were paid in cash. The public servants
were divided into civil servants, military servants, educational personnel,
police and prison personnel, moreover, persons who were treated on
the same footing as officials. Correspondingly, there were separate
pension systems. The first ones were established in April 1875: General
Rules for the Support of Wounded Army Officials (Rikugun bukan shòi
fujo gaisoku),218 and Ordinance for Retirement of Navy Officials (Kaigun
tai’in rei ). In October 1876 the General Rules were followed by an
Ordinance for the Pension for Army Officers (Rikugun onkyù rei ) which
caught up219 with the regulations for the navy. The pension of civil
officials was regulated by the Officials’ Pension Ordinance (Kanri
onkyù rei ) of 4 January 1884. The subject of this ordinance became
a law (hò instead of rei ), and as such was enacted together with the
217
The Meiji government was confronted with an enormous amount of claims for
pension (peers, ex-samurai, former common soldiers). The settlement of the claims was
an urgent financial necessity since the payments required a third or a fourth of the
treasury’s annual expenditures. R. Ishii/W. Chambliss (note 2) at 82–83/106–109.
218
They provided for relief in the case of fatal wounds and of the memorial service. They covered casualties in the Saga revolt (1874) and the Taiwan expedition
(1874) and were temporary regulations.
219
This ordinance was not limited to the consequences of the two military events
(see above). The difference in the names of the ordinances (onkyù = payment towards
superannuation, tai’in = retirement) is a sign of the fact that the two parts of the
armed forces were controlled by two separate ministries: Ministry for the Army and
Ministry for the Navy, the successors of the War Ministry (Hyòbushò ) which had
been divided into the two ministries on 4 April 1872. In September 1883 the two
ordinances were amended and the terms standardized: onkyù. In June 1890 the systems were combined under the Law for the Pension of Soldiers (Gunjin onkyù hò ).
164
public law
Officials’ Survivors’ Benefits Law (Kanri izoku fujo hò ) in June 1890.
The support of policemen and jailers had already been regulated in
July 1882, and the pension for them and their survivors was ordered
anew in July 1901. Since special rules for several kinds of teachers
and their survivors were added the system was in a state of flux.220
No sooner than on 14 April 1923 the Pension Law (Onkyùhò ) was
enacted. Art. 1 of the law granted a legal claim to the public servants
(kòmuin) and the persons treated the same as a public servant, as well
as to their survivors, to receive a pension under the conditions laid
down in the law. Public servants were defined as civil servants, soldiers, teachers, policemen, jailers, and similarly treated persons—
these were, for example, employees of the administration of the Ise
shrines,221 the Shintò priests of the imperial and governmental shrines,222
employees of the prisons administration and juvenile correction institutes, and certain employees of local units. If not otherwise defined the
similarly treated persons were determined by imperial ordinance. Their
position had to be comparable with that of a hanninkan or higher.
There were several sorts of pensions (art. 2):
1)
2)
3)
4)
5)
ordinary pension ( futsù onkyù),
increment pension (zòka onkyù),
disabled officials’ annuity (shòbyò nenkin),
one-time allowance (ichiji onkyù),
monetary grant for disabled non-commisioned officers and below
(shòbyò shikin) if the disablement did not reach the grade justifying an annuity,
6) allowance in aid ( fujoryò ),
7) one-time allowance in aid (ichiji fujoryò ).
Numbers 1) to 3) and 6) were annuities, the others were lump sums.
Further provisions of the law defined or regulated many details.
The cause of leaving the public service (taishoku) ipso facto was not
old age—there was no age limit—but the consequence of one of
three circumstances: dismissal from service, retirement, forfeit of office
220
Under art. 84 of the Pension Law of 14 April 1923 thirty-nine former laws
and ordinances were repealed.
221
The two supreme shrines of Shrine Shintò.
222
Kankokuheisha: shrines of Shrine Shintò, maintained out of the imperial budget (kanpeisha) or the government’s budget (kokuheisha). See W. Gundert (note 195)
at 152 and 213.
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165
(nenkan, taikan, shikkan, art. 26).223 If not otherwise decreed by imperial ordinance the chief of the Cabinet’s Pension Secretariat decided
on the pensioning-off. The official concerned was allowed to protest
against the decision, and, if this was upheld, to lodge a complaint
with the prime minister or take legal action before the administrative tribunal. The prime minister had to ask for advice from the
Pension Examination Committee (arts. 12–15).
A new version of the Pension Law was introduced by a series of
amendments since 1946.
223
Until the enactment of the new public servants’ order after 1945 the status
and the post of an official were different legal terms. First, he was appointed official
(kan), then a post (shoku) was assigned to him. If the official lost his status as a kan
this resulted in the loss of his post (shoku; taishoku = retirement ipso facto—the term
was also used in the case of retirement of one’s own accord). In the case of a soldier or teacher not being a kan an additional cause of retirement was discharge
from the service (kaishoku). The word shoku instead of kan (menshoku, taishoku, shisshoku)
was, logically, otherwise used if the official had not the status of kan.—The separation of kan and shoku, as described in the present context, was abolished under
the new public service system after World War II.
CHAPTER THREE
CIVIL CODE
3.1
General Provisions
Ronald Frank
3.1.1. Introduction: Codifying Civil Law in Meiji Japan
The famous “Meiji Charter Oath” (Gokajò no Goseimon) of 1868 contained a number of statements that would have particular significance
for the development of civil law in Japan. Not only were “evil practices of the past” going to be abandoned, everything was going to
be based “on the just laws of nature”, and, moreover, expertise on
how to achieve just that should “be sought all over the world”. With
regard to civil law issues the process of determining just what constituted an “evil practice of the past” and, more importantly, of constructing a modern legal framework to replace such practices would
take exactly three decades, until the Civil Code was finally enacted
in July of 1898. Knowledge would indeed be sought all over the
(western) world, and French, Anglo-American, as well as German
models would find proponents in the growing community of legal
experts in Japan. In the end, a Civil Code would emerge that followed closely that of Germany in both structure and substance. The
following account will trace specifically the development of the first
chapter of the Civil Code, entitled “General Provisions” (sòsoku), promulgated together with the chapter on Real Rights and that on
Obligations in 1896. These parts belong to the so-called “New Civil
Code” and are in effect to this day. Needless to say, the chapter on
General Provisions owed its existence solely to the fact that the
drafters of the code chose to follow the lead of Germany where a
comparable code had been enacted the same year. An earlier draft
of the Japanese Civil Code, known as the “Old Civil Code”, had been
promulgated in 1890 but had never gone into effect. That version
had been based on the Code Napoleon and, consequently, it did
general provisions
167
not include a comparable chapter. However, rather than limiting the
scope of this account to just the six years that separate the two vastly
different versions of the Civil Code, it appears necessary to trace the
development of civil law in Japan from the moment the country
embarked upon the course towards modernization.
3.1.1.1. Civil Law in Traditional Japan
Students of the Japanese Civil Code often stress two closely related
points that have become almost axiomatic in the discourse on modern legal history. First, the code was essentially an example of modern (western) statutory law grafted in response to foreign pressure
onto a traditional (non-western) society. Second, the reception of
legal concepts set forth in the code was severely hindered by the
fact that traditional Japan lacked not only a comprehensive system
of statutory law, it had, in the words of Joseph Needham, no idea
of law equally applicable to heaven and man, and hence no legal
science.1 While both these statements are certainly valid in their own
right, they tend to obscure the extent to which instruments of civil
law had been developed in pre-Meiji Japan.
As far back as the Kamakura period (1185–1333) courts routinely
distinguished between civil and criminal cases, classifying cases concerning real rights and obligational rights in separate categories.2 In
the flurry of legislative activity that followed the collapse of the centralized political order in the fifteenth century such compartmentalization was not always possible or even considered necessary. Yet
the civil cases adjudicated in the courts of various independent daimyò
of the Warring States period (1467–1590) outnumbered criminal or
administrative matters by a large margin. To be sure, even where
a comprehensive domain law code existed uniform application of its
provisions was be no means guaranteed. Furthermore, in judicial
practice custom was a vastly more important source of law than
statute. Nevertheless, all of the surviving codes do contain provisions
that could be classified as belonging to the category of civil law.
1
See Richard Minear, Japanese Tradition and Western Law (Cambridge: Harvard
University Press, 1970), p. 3.
2
See Carl Steenstrup, A History of Law in Japan Until 1868 (Leiden: E.J. Brill,
1991), pp. 95–96.
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civil code
In a sense the political order of the Edo period (1600–1868) perpetuated this state of affairs. The confederate structure of the Japanese
polity, with daimyò maintaining an often precarious autonomy vis-àvis the shògun’s government (bakufu) in Edo, resulted in bewildering
variety of often overlapping jurisdictions. Statutes enacted by the
bakufu and by the daimyò for their respective domains addressed issues
of civil law. However, the distinction of criminal and civil cases in
judicial practice appears to have been a procedural rather than substantial one.3 Instruments of civil law, especially with regard to obligations, were developed in the thriving commercial centers of Tokugawa
Japan. Village communities enjoyed considerable autonomy in governing their affairs, consequently there emerged a body of customary law, a large part of which can be classified as civil law.4
The creators of a modern civil code for Japan were thus by no
means looking onto a blank slate, and there is indeed ample evidence
that the drafters of the code consulted the available sources of traditional law and procedure.5 However, even though traditional Japan
had not been totally devoid of civil law, the creation of a modern
civil code was a fundamentally new departure. Jurisprudence in traditional Japan had relied on written statute only to a limited extent,
instead placing heavy emphasis on reason (dòri ) and custom. Furthermore, statutes themselves had been often unsystematic, limited
in scope, and, most importantly, had not been made known to the
general public. Such codes as did exist, e.g. the Kujikata Osadamegaki
of 1741 were explicitly designed as reference works for magistrates
and judges. There was a tendency for statutes to be considered complementary to custom. With few exceptions most written law had
been designed to clarify customary law and precedents, and to provide a yardstick in cases where there was no applicable custom. Only
very rarely did a code ever explicitly supersede existing customary
law.6 It should also be remembered that even though courts could
3
See Dan F. Henderson, Conciliation and Japanese Law: Tokugava and Modern (Seattle:
University of Washington Press, 1965), p. 101.
4
For an analysis of village custom see Dan F. Henderson, Village “Contracts” in
Tokugawa Japan (Seattle: University of Washington Press, 1975).
5
Boissonade himself asserts this much in his Les anciennes coutumes du Japan et le
noveau Code Civil. See John Owen Haley, Authority Without Power: Law and the Japanese
Paradox (New York: Oxford University Press, 1991), p. 71.
6
A case in point would be some of the so-called house laws of the Sengoku
period.
general provisions
169
and frequently did find in favor of commoners, in the words of Carl
Steenstrup “justice done was always a grace, not a right.”7
Needless to say, legislative acts in pre-modern Japan had a political
dimension as well. Besides being an administrative tool, a code did
lend an aura of legitimacy to its author, it served as a symbol of
recognized public authority. It is noteworthy that periods of increased
legislative activity as a rule coincided with the immediate aftermath
of major political upheavals, when the need for symbols of legitimacy for new rulers was the greatest. However, despite a renewed
interest in Chinese law during the eighteenth century, no steps were
taken towards the creation of a comprehensive, universally applicable law code in traditional Japan. Law was never defined, and never
appears to have been thought of, as a body of abstract principles
until the forceful opening of Japan in 1854 increased contact with
the west. The legal order of pre-modern Japan had always been
viewed as a quintessentially ethical order. In contrast, a modern, i.e.
western, body of law would necessarily reflect the most recent developments of legal philosophy in the West where a system of laws
independent of ethics had been devised. Whether theorists in the
West considered law an art or a science, whether they espoused natural law theories or legal positivism, their ideas were singularly alien
to the Japanese society that was about to receive them in the form
of universally applicable statutes.
3.1.1.2. First Steps Towards Codification (1868–1870)
The events surrounding the so-called Meiji Restoration of 1868 belong
to the realm of political rather than legal history and shall not be
discussed here. The decision to embrace a modern, i.e. western, legal
order was made in response to the pressure of Western powers on
Japan and to the desire to revise the unequal commercial treaties
that had been concluded in the closing years of Tokugawa rule. The
young leaders of new Japan were very much aware of the fact that
in order to forestall further encroachments on Japan’s sovereignty by
western powers an emulation of the practices of the west was called
for. The mere existence in all treaties of clauses providing for consular jurisdiction in criminal and civil matters over foreign nationals
7
Steenstrup, p. 122.
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civil code
in Japan made it clear that the Western powers saw the legal order
of Japan as inferior to their own. That fact in itself precluded the
creation of law codes based directly and explicitly on custom and
statutes of pre-Meiji Japan.8 A clear break with the past was called
for, the formal institutional, procedural, and statutory framework of
the new legal system could not afford to have antecedents in the
“barbaric” practices of yore. After all, the West claimed the monopoly for “civilization”.
Nevertheless, the process of codification that the framers of the new
order embarked upon had one aspect in common with all previous
legislation—it would result in the imposition of formal institutions
and processes created by a ruling elite. What would be new was the
degree to which these institutions were designed to have an impact
on the everyday lives of the population at large.
It is furthermore tempting for the historian to assume certain parallels with regard to the political significance of new legislation. The
Meiji government found itself in a situation not dissimilar to that of
the early Heian, Kamakura, or late Muromachi periods where previously marginal elite groups had assumed power and used legislative
acts to bolster their legitimacy. In all of these cases a conscious clean
break had been made with the past and new laws had been promulgated by those responsible. The aim of these legislative efforts
had been, first and foremost, to secure and legitimize the positions
of the new power holders. In that tradition, the Meiji government
too seems to have been interested primarily in order, rather than in
law. Law was perceived to be a convenient and effective ordering
device, something applied by the government to the governed. Western
law codes were attractive mostly for two reasons. They were a product
of the system Japan tried to emulate, and they were seemingly all
encompassing. The fundamental conceptual difference between such
an understanding of law and the philosophy underlying Western legal
system would dawn on the creators of modern Japan only gradually.
The publication of the first book on Western law in Japan, entitled
“Taisei kokuhò ron” (A Treatise on Law in Western Countries) coincided with the Meiji Restoration in 1868. Its author was Tsuda
Masamichi (1829–1903) whose name would forever been linked with
8
Theoretically such a step would have been possible, since sophisticated instruments
of civil law had been developed in the cities, villages, and courts of Tokugawa Japan.
general provisions
171
Civil Law—it was he who invented the term minpò.9 Tsuda had been
sent by the shogunate to study at Leiden University from 1862 to
1865, and subsequently he became one of the first legal scholars of
Japan. His view that codes were “an excellent instrument for regulating the people”10 was most certainly shared by most of his readers.
Despite his early praise for western law, Tsuda became instrumental
in the drafting of the first post-Restoration criminal code (shinritsu
kòryò). This code had the distinction of being the first code designed
for nationwide application, however, it was based on principles of
traditional Chinese penal law, particularly that of the Ming (1368–1644)
and Qing (1644–1912) dynasties.
In 1867 the shogunate’s Commissioner of Foreign Affairs ( gaikoku
bugyò ) Kurimoto Jòun (1822–1897) had visited France and had apparently been much impressed by the Code Napoleon. In his published
reminiscences he stressed the value of such an all-encompassing code
as a mechanism to control all aspects of modern life.11 However, it
was another former bakufu official who had traveled in France at
the same time who would emerge as one of the creators of the Civil
Code in Japan—Mitsukuri Rinshò (1846–1897). Having become an
official translator for the new Meiji government he was entrusted
with following up on Kurimoto’s suggestion that the French code
be translated into Japanese. In the process of working on this task
Mitsukuri was instrumental in developing a new legal vocabulary,
since most of the concepts on which the French code rested had no
equivalents in the Japanese language. Most famously, his rendering
of droit as “kenri” (a compound of the characters for “authority” and
for “benefit”) and of droit civil as “minken” (= “people’s authority”)
appeared to be politically dangerous if not subversive to a government that was still feeling highly insecure. This translation effort was
at the heart of the first real attempt to create a Civil Code for Japan.
9
The Kòjien still lists the word as “translated/created by Tsuda Masamichi”.
It is his rendering of the Dutch “Burgerlijk Regt”. It is somewhat difficult to translate this compound back into English. The combination of “min” (= people) and
“hò” (= law) could be rendered as “citizen’s law”, “people’s law”, or “commoner’s
law” depending on the political and historical context. In an era of drastic change
all of these meanings had a certain amount of validity. In current usage, minpò
means both Civil Code and private law.
10
Robert Epp, Threat to Tradition: The Reaction to Japan’s 1890 Civil Code (Ph.D.
Dissertation, Dept. of History and Far Eastern Languages, Harvard University, 1964)
as quoted in Haley, p. 74.
11
Ibid.
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civil code
3.1.1.3. The French Phase (1871–1890)
Etò Shimpei (1834–1874) is probably most familiar to students of
Japanese history as one of the leaders of the Saga Rebellion of 1874,
the first of several unsuccessful uprisings against the Meiji government.
It is somewhat ironic that this famous rebel against the new order
had been the very person in charge of defining its legal framework. It
was he who in his capacity as chair of the Civil Code Committee (Minpò
kaigi) in September of 1870 ordered Mitsukuri Rinshò to translate
as quickly as possible the French Code civil.12 Before tracing the
progress of Etò’s work and that of his successors, however, we should
consider the reasons for their eagerness to embrace the French model.
These reasons were practical as well as theoretical. The Code civil of
1804 was recognized throughout continental Europe as the best example of legislation designed to provide equality for all citizens of a
centralized nation state. Its substance and structure was reflected in
the codes of many other countries of Europe, notably in the Netherlands, where Tsuda Masamichi had encountered it in 1862. The
2208 articles of the code arranged in three books on “Persons”, “Goods
and Property”, and “Acquisition of Property”, respectively, appeared
to cover all aspects of modern society without being overly detailed.
In short, this was exactly what the Meiji Government looked for—
a rational, abstract code that was proven in practice and that was
widely hailed as the greatest legal achievement of the Western world.
The historian cannot fail to note another important connection. The
Code civil was the result of the French Revolution which had destroyed
the feudal institutions of the ancien regime. Japan was in 1868 at a
similar juncture in its history. The Meiji leaders, like the drafters of
the Code civil subscribed to the “creed of Enlightenment and the Law
of reason that social life can be put into rational order if only the rules
of law are structured according to a comprehensive plan.”13 The main
difference between the authors of the French code and the aspiring
legislators of Meiji Japan was how they envisioned that this “rational
order” was going to be achieved. In France most civil law belonged
to the realm of private law, consequently the ordering process was
12
His famous injunction to Mitsukuni to speed up the process by simply replacing the word “French” with “Japanese”, though never documented, appears to capture the spirit of the early Meiji years rather well.
13
Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law, Vol. 1
(Amsterdam: North-Holland Publishing Co., 1977), p. 78.
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173
believed to be subject to private, autonomous initiative. The rules were
enforced at the discretion of private parties rather than by state fiat.
Application and enforcement of private law provisions were by definition outside the purview of the state. In Japan, all lawsuits, including those initiated by private parties had traditionally been called
“public matters” (kujikata), since it was a public authority that granted
justice. The realization that a modern civil code would be a means to
empowering the people to take autonomous action, that its provisions
by and large would not be enforced through administrative action
by the state came as something of a shock to the Meiji reformers.
The organ entrusted with overseeing the creation of new codes
for Japan was initially the Office of Law and Institutions (seidòkyoku).
The Civil Code Committee (minpò kaigi ) was part of the Law Office,
with Etò Shimpei heading both. An initial draft translation of parts
of the Code civil, prepared by Mitsukuri Rinshò was approved by
the committee before it became part of the Left Chamber (sa’in) of
the Grand Council of State (Dajòkan) in 1871. This draft, entitled
“Civil Code Resolution” (minpò ketsugi ) contained 79 articles from the
first two books of the Code civil drawn mostly from the Loss of Rights
section of Book One and from the Acts of Civil Status section of
Book Two.14 At this juncture it became apparent that the provisions
of the French code were at times diametrically opposed to existing
Japanese custom and statutory law, in particular the Family Registration
Law of 1871. Once the committee had come under the auspices of
the Left Chamber (sa’in)15 due to Etò’s appointment as deputy head
of this body all real work on the draft ceased. Mitsukuri Rinshò
relates that “There was discussion about wording only, but not on
any substantial issues.”16
The first complete draft of a civil code in Japanese emerged a
year later, in 1872. It was the result of a concerted effort of the
Law School (Meihòryò ) of the Ministry of Justice (Shihòshò ). This draft,
entitled “Provisional Regulations for the Imperial Civil Code” (Kòkoku
minpò kari kisoku) followed the French example very closely, while
taking into consideration Japanese custom and legal precedents. It
14
See Ukai Nobumasa et al., Nihon kindaihò hattatsushi, Vol. 5 (Tokyo: Keisò
Shobo, 1958), p. 6.
15
An institutional reform within the Great Council of State (dajòkan) in July had
merged the Office of Law and Institutions with the Left Chamber.
16
Quoted in ibid., p. 9.
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civil code
was essentially the first draft for what would become the 1890 Civil
Code that is usually referred to as the “Old Civil Code”. Several
provisions of the draft differed from the French model, especially in
the field of Family Law, Inheritance, and Property Law.17 It remains
unclear to what extent Etò Shimpei was personally involved in the
work on the draft.
Upon being appointed Minister of Justice Etò convened in the fall
of 1872 the Civil Code Conference of the Ministry. A central role
was played by Georges Bousquet a legal adviser to the Meiji government who had helped in the drafting of the “Provisional Rules”.
As a result of its deliberations, the conference produced an 88 article
draft entitled “Provisional Rules for the Civil Code” (Minpò kari hòsoku)
that dealt mostly with question of Civil Status. The provisions of
this document were in conflict with existing Family Registration Law,
and although it was presented to the Central Chamber (Sei’in) of the
Grand Council of State it never became law.
After Etò was removed from the post of Minister of Justice, deliberation on the Civil Code draft continued in the Left Chamber of the
Great Council of State. Greater emphasis was now apparently placed
on incorporating Japanese legal tradition. The draft that was produced by 1874 consisted of five parts dealing with the inheritance
of house headship, bequests, adoption, guardianship, and marriage.
The Left Chamber ceased to exist in 1875,18 whereupon the task
of drafting a civil code was once again transferred to the Ministry
of Justice. A special Civil Code Department (minpòka) was formed at
the ministry and in 1876 a Bureau for the Investigation of Local
Customs (chihò kanrei torishirabe kyoku) was established in that department. The efforts of this bureau resulted in the compilation of two
collections of customary law, the “Collection of Civil Customs” (Minji
kanrei ruishò ) in 1877, and the “Collection of Civil Customs of the
Nation” (Zenkoku minji kanrei ruishò ) three years later. These efforts
were directed by the new Justice Minister Òki Takatò (1832–1899)
who was apparently committed to incorporating some aspects of traditional customary law into the draft of the civil code. However, the
draft produced by 1878 was closely mirroring the French code, perhaps owing to the fact that Mitsukuri Rinshò had once again been
instrumental in its compilation.
17
18
For a detailed list of these issues see ibid., pp. 8–9.
It was replaced by the Council of Elder Statesmen (Genrò-in).
general provisions
175
Subsequently Mitsukuri’s drafts were given less and less weight in
the deliberations about the Civil Code. Òki was made the chief of a
Bureau for the Compilation of a Civil Code (Minò hensan kyoku) under
the supervision of the Council of Elder Statesmen in 1880. By that
time it was understood that some aspects of the future civil code,
most importantly family law, had to take Japanese customs into consideration while others would be allowed to mirror foreign examples
more closely.
The major figure of this drafting effort was Gustave Boissonade
(1829–1910) who had been an adviser to the Meiji government and
a teacher of law in Japan since 1873. Boissonade himself was entrusted
with drafting the sections on property law in French, while the task
of translating Boissonade’s draft fell to Mitsukuri Rinshò, Kurokawa
Seiichirò, and Isobe Shirò. Thus this project represented the first
real drafting effort that did not start with a translation of the Code
civil. However, the progress was slow, and before the compilation
bureau was abolished in 1886 only parts of two of the originally
planned five books had been completed.19
The abolition of the compilation bureau was closely linked with
the political pressures that had surrounded the compilation process
from the very beginning. One of the major reasons for the desire
to enact modern law codes continued to be the question of the unequal commercial treaties. Chronologically coinciding with Boissonade’s
work in the compilation bureau, the Minister of Foreign Affairs Inoue
Kaoru (1836–1915) made a renewed push for treaty revision from
1880 onward. By 1886 a compromise solution with foreign powers
had been reached, but ironically it fell to Boissonade to convince
the Meiji leadership that this solution would be injurious to Japanese
interests. The vast significance of the codification effort for Japan’s
foreign policy was illustrated by the fact that the Ministry of Justice
lost control over the process and instead the Foreign Ministry became
responsible for the speedy completion of a draft. After Inoue’s treaty
revision plan had failed and he was forced to resign as Foreign Minister
in 1887, the Ministry of Justice once again took control. The new
Minister of Justice Yamada Akiyoshi established a “Code Investigation
Commission” (Hòritsu torishirabe iinkai ) under his personal leadership.
19
Parts of Book 2 (Property) and Book 3 (Acquisition of Property) were submitted to the Cabinet for review in March of 1886.
176
civil code
This commission reviewed Boissonade’s draft of four of the books
(Property, Acquisition of Property, Mortgages, and Evidence) which
were submitted to the cabinet in late 1888. The remaining parts,
namely the Book on Persons and the section on inheritance of the
Book on Acquisition of Property, were drafted by Japanese members
of the commission, Isobe Shirò (1851–1923) and Kumano Toshizò
(1854–1899). It remains unclear in what concrete way Boissonade
might have influenced the drafting of these parts, although his ideas
appear to be reflected there as well. After going through several
rounds of revisions and amendments the two sections were submitted
to the cabinet in April of 1890.
By that time Boissonade’s draft had already been considered by
the Council of Elders and the Privy Council (sùmitsuin) and was subsequently promulgated in early 1890. The family law draft followed
the same path to be officially promulgated in October of the same
year. The whole Civil Code was supposed to go into effect January
1, 1893. However, by the time of its promulgation a debate between
its supporters and opponents was already well under way. Eventually
this debate would prevent the code from going into effect as planned
and result in a thorough shift in the orientation of Japanese legal
science. It is to this controversy that we shall now turn.
3.1.1.4. The Civil Code Controversy 20
After more than 20 years of work on translations and draft proposals
a complete Civil Code had finally been published in the fall of 1890.
However, it was destined to become known to history as the “Old
Civil Code” (kyùminpò) even before its promulgation. The process of
drafting the code had in a way mirrored the varying degree to which
Western ideas had been accepted in Japan over the course of these
two decades. After a initial infatuation with everything Western and
modern had found its illustration in the attempt to simply translate
the French Code civil, a more realistic attitude encouraged the incorporation of Japanese custom. It is more than just coincidence that
this shift in direction occurred at the time of the last great uprising
of proponents of tradition against the new Meiji state in 1878. Foreign
20
The debate is referred to in Japanese as either hòten ronsò (Codification Debate)
or minpòten ronsò (Civil Code Debate). In fact, the Civil Code was not the only piece
of legislation that was being discussed at the time.
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177
policy considerations, namely the question of revising the unequal
commercial treaties with Western powers led to a greater reliance
on western models in the early 1880s, as exemplified by the role played
by Gustave Boissonade in the drafting of the code. After the debacle
of 1887 when the attempt to reach an agreement with the Western
Treaty powers had proven unsuccessful, further work on revising and
completing the draft was done almost exclusively by Japanese jurists.
This coincided with a general backlash against what was perceived
by many vocal critics as blind copying of Western customs and institutions. Such slavish adherence to Western models, the argument
generally ran, would eventually result in the utter destruction of the
moral foundation of the Japanese polity.
Needless to say, the Civil Code of 1890 was a very convenient target for nationalist sentiments, since its roots in the Napoleonic code
were well known. However, the extent to which the criticism levied
against the code was justified even from a nationalistic point of view
is a different matter. What is more, the code was attacked not only
on political grounds. Critics from the growing community of jurists
pointed out several shortcomings that in their view warranted a postponement of the enactment of the code. In other words, the controversy surrounding the Old Civil Code had a technical as well as
a politico-ideological dimension. It should also not go unmentioned
that turf wars between proponents of different schools played a role
in the controversy as well.21
The debate about the Civil Code had in fact begun even before
its promulgation, with the first critical “Views on the Compilation
of Law Codes” (Hòten hensan ni kansuru ikensho) being published by
the Society of Legal Scholars (Hògakushi kai )22 in 1889. By 1890 the
lines between the “Rapid Enforcement Faction” (dankòha) and the
“Postponement Faction” (enkiha) were all but drawn. Opponents of
the Code voiced several concerns. One recurring theme was that the
statutory law being proposed had no basis in existing Japanese legal
practices. The code was essentially an academic exercise in legislation forced upon a population that lacked the basic understanding
of the workings of a comprehensive code.
21
For a brief summary of interpretations of the debate by various historians see
Haley, p. 76.
22
The members of this society were connected to Tokyo Imperial University and
were proponents of English law.
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Perhaps the most concrete criticism in an otherwise highly emotionally charged debate had to do with the question of systemic cohesion. Both the Code of Civil Procedure and the Commercial Code
had been drafted by German jurists, while the Civil Code was obviously following the French model. This led to obvious contradictions
that would make the application of these codes in practice difficult.
Consequently, more time was needed to revise the existing drafts so
as to ensure their practical validity.23 Curiously, in the light of subsequent events, this argument was not used explicitly in favor of
using a German model for a new Civil Code draft as well.
The ideological essence of the controversy is epitomized in the title
of an essay that the well known legal scholar Hozumi Yatsuka (1860–
1912) published in 1891—“If the Civil Code is Enacted, Loyalty and
Filial Piety will be Destroyed” (Minpò idete, chùkò horobu). Hozumi, along
with scores of others, perceived the Civil Code to be fundamentally
incompatible with Japanese tradition. Although a famous scholar of
constitutional rather than civil law, Hozumi was adamant that a code
like the one proposed would undermine the very foundations of
Japanese society. To him, law had no independent existence, it was
inseparable from its social functions and hence from ethics. Echoing
the etymology of the Chinese character for law (hò) which in an
early form contained a mythological animal capable of separating
right from wrong he wrote, “Law attempts to maintain the right,
that is, the social ideal, and to expel the wrong. [. . .] When those
who study law and make law do not understand the purpose of law
[. . .] law becomes science teaching us how far we can go in committing bad acts”.24 Hozumi’s criticism was fundamental and reflective
of the sentiments of conservative forces in Japan for whom the code
was simply “too foreign”. By emphasizing the rights of the individual
the code implicitly eroded the family system that provided the moral
backbone of the Japanese polity. Furthermore, in Hozumi’s view individuals received the capacity for rights in return for absolute obedience.
His interpretation of the evolution of the Japanese political system
was threatened by the concept of the autonomously acting individual.
23
This argument curiously echoes the one presented by Savigny in his famous
controversy with Thibaut in 1814 over the readiness of Germany for a Civil Code.
The apparent parallel was first mentioned by Hozumi Nobushige (1856–1912).
24
Quoted Minear, p. 88.
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179
It should not go without notice that Hozumi’s article was published
by the journal of the Tòkyò Hògakuin Law School, one of the centers
for the study of English law. From the same school came a pamphlet
entitled “Opinion for Postponing the Enforcement of Codes” (Hòten
jisshi enki iken) in April of 1892. It echoed some of Hozumi’s concerns but also levied the more concrete charge that the code would
compromise the regulating power of the constitution. This particular
document was distributed to senior politicians and was very likely
an important factor in convincing a majority of Diet members to
vote for a postponement of the Civil Code in May 1892.
Many of the charges that the Postponement Faction levied did indeed
have a certain amount of merit. However, it is noteworthy that
although the main theme of the controversy revolved around family
and inheritance law, few if any concrete points of contention were
identified. The parts of the code that were criticized most were the
very ones that had been drafted by Japanese jurists under careful
consideration of traditional custom. All provisions of the code had
been extensively discussed by high-level government officials. Allegations
that the code was a simple copy of the French one could be easily
refuted by pointing out differences in the structure of the two codes,
the Japanese code had five separate books whereas the Code civil had
three. However, the main charge of the conservative critics, namely
that Western civil law would in the long run erode the traditional
Japanese value system, was indeed substantial. The neo-traditionalists
around Hozumi Yatsuka were not averse to the use of Western legal
forms, as the case of the Meiji constitution had shown.25 For them
the Civil Code presented a challenge to tradition because of its very
fundamental assumptions of individual autonomy. This made it impossible to conceive of the code as a means of bolstering the legitimacy
of the regime and enforcing moral values—the very tasks law had
fulfilled in traditional Japan.
Of the many criticisms directed at the Old Civil Code, few had
a concrete focus on the code itself. One notable exception was Tomii
Masaaki (1858–1935), a graduate of the University of Lyon who
pointed out numerous shortcomings in the code itself. He objected
to the exclusive reliance on the French model, pointed out a number
of contradictions and duplications, and observed that many provisions
25
In fact, Hozumi Yatsuka would make a name for himself as a commentator
on the character of the Meiji Constitution.
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civil code
were in fact of procedural or public law nature.26 In particular he
argued for the inclusion of concepts derived from German and English
private law into the code. Another leading critic of the code was
Hozumi Nobushige whose criticism, unlike that of his brother Yatsuka,
was rooted in misgivings about the structure, consistency, and “theoretical defects” of the code itself. Hozumi Nobushige was at the
time already an established specialist in comparative law, having published, among others, an article on “Comparative Analysis of English,
French, and German Legal Theory” (Ei-futsu-doku hògaku hikakuron) in
1887. He had studied law in England and Germany, and this particular fact is often cited as a reason for his opposition to the Old
Civil Code. In fact, he would later admit himself that he had become
a champion of German law while being a student in Germany.27
The arguments presented by the Rapid Enforcement Faction mirrored those of the postponement group, in some cases they were
almost identical. In their view a postponement would be causing the
downfall of Japanese ethics and throw Japan into turmoil. The standpoint of the proponents of the Civil Code was summed up in an
article published in the aptly titled “Journal of the Association for the
Rule of Law” (Hòchi kyòkai zasshi ) in early 1892.28 In it, the argument
was made that a postponement of the Civil Code would jeopardize
Japan’s credibility as a modernizing nation in foreign eyes. The implication was of course that the opponents of rapid code enforcement
were harming Japan’s national interest by opposing a modern piece
of legislation. Furthermore, the argument went on, postponing the
enforcement of the civil code would mean placing legislative power
in the hands of judges. One is left to wonder to what extent this
was directed at the followers of English law who made up a sizable
proportion of the code’s opponents. The article also mentioned the
dangers to the economy and to individual rights should the code be
postponed.
In the end, the arguments of the Postponement Faction won out.
Shortly after the publication of the article mentioned above a bill was
introduced in the Diet that would delay the enforcement of both the
26
For a listing of Tomii’s concern see Ishii Ryòsuke, Japanese Legislation in the Meiji
Era (translation by Chambliss, Tokyo: Tòyò Bunko, 1958), p. 588.
27
See below, p. 183.
28
The article was entitled “An Argument for the Code’s Immediate Enforcement”
(Hòten jisshi dankò no iken). For a summary of the points made therein see Ishii (note
26), p. 587.
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Civil Code and the Commercial Code until 1896. This bill was eventually passed by both houses, thus sealing the defeat of the Rapid
Enforcement Faction.
Historians of the debate never fail to mention its highly emotional
character that at times bordered on the irrational and grotesque. At
the same time, labels seem to be easily found and applied to the
two groups. One could, for example describe the controversy in terms
of a clash of proponents of French law (the enforcement group) and
English law (the postponement group). A contemporary observer and
participant in the drafting of the new Civil Code, Niida Matsutarò,
wrote in 1938, “The dispute is one waged between the students of
French law and those of English law, not an enlightened contest of
learned views between the school of natural law and the historical
school.”29 The problem with such a differentiation is that while there
is evidence of such a split in the community of jurists, it appears to
be too simplistic an explanation for the code controversy. For one,
it does not explain why Tomii Masaaki was a vocal opponent of
immediate enforcement although he officially belonged to the “French
law faction”. More importantly, if the main point of contention had
been the preference for one or another foreign model of law, one
would have expected the winning side to capitalize on their success.
However, there was no shift towards a more pronounced reliance
on English jurisprudence whatsoever discernible in the aftermath of
the code controversy. That is to say, although schools teaching mostly
English law, e.g. Tokyo Imperial University, emerged as hotbeds of
opposition to the Old Civil Code, this opposition does not appear
to have been primarily a turf war.
In academic terms, the controversy could be described as a conflict
between proponents of natural law theory and followers of the historical school. Boissonade began his career in Japan by teaching
natural law, and his ideas influenced many participants in the code
controversy. On the other hand, Hozumi Yatsuka had in his years
of study in Germany internalized the theories of Savigny and others, and was in the process of successfully applying a historical method
in his interpretation of modern Japanese constitutional law. Yet it
29
Niida Matsutarò as quoted in Noda Yoshiyuki, “Nihon ni okeru hikakuhò no
hatten to genjò” (Comparative Jurisprudence in Japan: Its Past and Present) in
Tanaka Hideo (ed.) The Japanese Legal System (Tokyo: University of Tokyo Press,
1976), p. 206.
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would be to narrow an explanation to simply equate the Enforcement
Faction with a group of natural law theorists and the Postponement
Faction with adherents of the historical school, if only because much
of the debate did not have an academic focus in the first place.
It is of course easiest of all to cast the code’s opponents in the
role of ultra-nationalist reactionaries who were trying to hamper historical progress as embodied by the open-minded internationalist
Enforcement Faction. At first glance such an interpretation appears
to be very reflective of the main arguments presented in the controversy. It particularly resonates with Hozumi’s famous epistle portending the death of filial piety. However, it appears to be necessary
to make a distinction between criticism levied against a foreign
inspired code, and criticism of the fact that the code was “foreign”
in the first place. While the former would be technical (cf. Tomii)
and find a narrow professional audience of jurists, the latter would
have much greater political appeal. The immediate decision to postpone the enforcement of the code was of course made by politicians
rather than jurists. But this should not lead us to believe that the
conservative vs. progressive dichotomy is by itself a valid explanation
of the controversy. If the postponers were die-hard conservatives and
traditionalists first and foremost, how do we explain the fact that the
Old Civil Code was replaced by a new draft that was as foreign if
not more so than its predecessor?
Neither of the above models of explaining the Civil Code Controversy appears to be satisfactory on its own. However, at the sane
time, they all reflect aspects of the debate that were definitely on
the minds of the participants and observers. In other words, they all
highlight different aspects of the debate, they are necessary components of a historical assessment without being sufficient separately by
themselves as analytical tools.
3.1.1.5. The German Model
Historians who view the Civil Code Controversy as something of a
turf war between proponents of English and French law are quick
to add that the shift towards German jurisprudence in the compilation of the New Civil Code represented in fact a compromise
between these two factions. However, such a treatment tends to overlook the deeper roots of the Japanese interest in Germany in general and German law in particular.
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183
It was obvious to the Meiji oligarchs that Germany, having entered
the stage of international relations as a nation state even later than
Japan itself, could serve as a model for Japan in a variety of ways.
Japanese students of Western law and institutions, but primarily of
medicine and science had flocked to German universities throughout the Meiji period. The Meiji government had relied on the services of Hermann Roesler (1834–94) as a legal adviser since the
late 1870s. Roesler had in particular been instrumental in the drafting of the Meiji Constitution and the Commercial Code. In addition,
the Code of Civil Procedure, the only code to be enacted in 1891
as planned, was following very closely the provisions of its German
counterpart. It made sense, therefore, to rely on German jurisprudence also in the re-drafting of the Civil Code, as Tomii Masaaki
had suggested in his criticism of the Old Civil Code.
Another critic of the Old Civil Code and drafter of the new one,
Hozumi Nobushige, had this to say about his experience as a student in Germany:
While I was in Germany studying law, I was firmly convinced of two things.
One is the fact that law instruction in Germany is far more advanced
than in any other country and that unless we import German jurisprudence
into this country, we shall never be able to keep ourselves abreast of the world’s
progress in law. The other is that although the German empire was
established only recently, the new civil code which its government promulgated to unify the law of the federated empire has begun to take
hold, and this German civil code embodies legal principles more upto-date than those of the French codes which this country has used
as a model for its laws. In the interest of future progress in legislation, we
must import German jurisprudence.30
In order to explain this fascination with German law, it is necessary
to briefly outline the development of civil law in 19th century Germany.
It is interesting to observe in this process some premonitions of similar
issues being discussed in Meiji Japan.
The German Civil Code (Bürgerliches Gesetzbuch—BGB), a first draft
of which was published in 1887, was the product of the so-called
Pandectist School of jurisprudence dating back to the first half of
the 19th century. One of its founders had been Friedrich Carl v.
Savigny (1779–1861). Savigny, recognized head of the Historical
30
Hozumi Nobushige, “Doitsugaku no Nippon ni Oyoboseru Eikyò”, as quoted
in ibid., p. 204, note 8. The emphasis is Hozumi’s.
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School of Law, was firmly convinced that law was a historical product of any given civilization. The Historical School placed a heavy
emphasis on customary law as the true expression of law. This in
itself would make it attractive to Japanese jurists seeking to reconcile
pre-modern customary practice with modern statutory law. Savigny’s
main tool in studying law was legal history, in particular the study
of written law from which he tried to derive the general principle
of law. The Pandectist School arose out of the systematic study of
Roman law. Its aim was to draw out the essence of the Roman
codes, and using an inductive method to arrive at an abstract legal
and institutional system that was logically coherent. As a result, law
could be applied schematically without any recourse to ethical, economic or other consideration. This was for the most part a strictly
academic exercise.
An important part of such an analysis was of course the definition of
all terms and concepts that were being used in a given legal system.
It is therefore not surprising to find that in the Civil Code draft produced in Germany by a commission under the leadership of an outspoken pandectist in 1887 should start with a book entitled “General
Part”. This book was designed to explain basic institutions that were
common to all of private law. Following this there are four books
devoted to “Obligations”, “Property”, “Family”, and “Succession”,
respectively. The “General Part” defines all terms, which are then
used in exactly the same way throughout the rest of the code, resulting in a code that is designed for professionals rather than the average citizen, a “legal calculating machine par excellence”.31 Interestingly
enough, upon its publication the first draft of the BGB faced serious criticism as well, albeit of a different and not as emotionally
charged kind than the Japanese Civil Code several years later.
The Pandectist system as an outgrowth of the Historical School
of law had caught the interest of Japanese jurists and scholars of law
for a variety of reasons. As mentioned above, the emphasis on the
validity of customary law was one reason, although a tendency to
rely increasingly on positive law was of course also noted. Hozumi
Nobushige’s comment reveals a deeply felt respect for the scientific
character of the pandectist system.32 An increasing number of jurists
31
Zweigert/Kötz, p. 145.
It should also be noted, however, that Hozumi’s comments were made years
after the New Civil Code had been enacted.
32
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185
in Japan believed that the German civil law system represented the
highest possible level of legal development the Western world had
to offer. In the early years of the Meiji era when the initial decision to draft a civil code had been made, the code civil was widely
praised as the most comprehensive and advanced code on the continent. By 1890, the German Civil Code had replaced the code civil
in the minds of many scholars in Europe as well as in Japan as the
most sophisticated codification to date.
Although there was some interest in German jurisprudence in
scholarly circles in Japan, it was only in 1887 (curiously, the year
of the publication of the first BGB draft) that a chair for the study
of German law was established at the University of Tokyo. There
had been a trend at the university to move away from the heretofore exclusive reliance on Anglo-American law since the early 1880s.33
The above mentioned Hermann Roesler had been in Japan since
1878. Of the Japanese students of law in Germany the most noteworthy are without doubt Hozumi Nobushige, his brother Hozumi
Yatsuka, and Ume Kenjirò (1860–1910), one of the proponents of
the Old Civil Code. Ume, whose doctorate in law was from the
University of Lyon, and Hozumi Nobushige would later be instrumental in the drafting of the New Civil Code.
Despite the significant growth in the interest in German law discernible in Japan since the early 1880s it would be a gross overstatement
to assume that German jurisprudence was dominant in academic or
legislative matters at the high point of the Civil Code controversy
in 1892. Needless to say, the enactment of the Meiji Constitution in
1889 created a major boost for the reception of German law in
Japan. However, Roesler’s draft of the Old Commercial Code had
done as much if no more than Boissonade’s Old Civil Code to ignite
the codification debate in 1890.
A cursory study of the history of the new civil code might easily
lead to the chronological fallacy of assuming that there was a significant
theory reception under way that promoted the focus on the German
civil code in the 1890s. In fact no such reception took place until
well after the enactment of the codes. Hozumi himself would later
acknowledge that there was no comparative study of law to speak
of in Japan during that time. The interest in the BGB seems to have
33
See Minear, p. 14.
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been rather a purely pragmatic and technical one. It was recognized
as the most advanced and sophisticated civil code in Europe, and
that was reason enough to incorporate its structure and ideas into
a revision of the Japanese civil code.
This peculiar “technical” or schematic reception of the German
civil code in Japan is decidedly different from the influence that code
and the pandectist school had on Europe. There the reception, widespread though it was, appears to have been a theory reception first
and foremost. The German model influenced legal theory and doctrine more than it did actual codes. In contrast, in Japan a practical reception of the code was followed by a significant theory reception
in later decades.
3.1.1.6. The New Civil Code
In May of 1892 the Diet decided by a majority vote to postpone
the enforcement of the Civil Code until 1896. An examination committee under the leadership of Saionji Kinmochi subsequently reviewed
both the Civil and the Commercial Code and its findings reinforced
the decision to delay the enforcement of both codes.
The initiative to revise the draft of the Old Civil Code appears
to have come from Ume Kenjirò who had been a vocal proponent
of the Enforcement Faction. He sent a letter to Prime Minister Itò
Hirobumi (1841–1909) requesting the establishment of a new drafting
committee. In May of 1893 a “Code Examination Council” (Hòten
chòsa kai ) was formally established by Imperial decree with Itò named
as chairman, and Saionji as deputy chairman. The jurists actually
entrusted with the revision of the Civil Code were Hozumi Nobushige,
Tomii Masaaki, and Ume Kenjirò. All were at that time members
of the Faculty of Law at Tokyo Imperial University and had been
active participants in the Civil Code Controversy. In the light of the
fact that the result of their endeavors was modeled after the German
civil code, it is worth mentioning that neither Tomii nor Ume were
known at the time as outright proponents of the German pandectist school. Both had degrees in French law from the University of
Lyon. After earning his doctorate there, Ume spent a year at the
University of Berlin. Hozumi had studied Law in Germany in 1880–81
and had joined the law faculty upon his return to Tokyo. He was
the outstanding scholar of comparative law of his day, a field of
study that was still in its infancy in Japan.
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Their task was defined as a revision of the existing draft of the Civil
Code, especially with regard to the many duplications, contradictions
and inconsistencies that had been the focus of particularly Tomii’s
criticism during the codification debate. Since, as mentioned above,
there had been very little in the way of a legal theory reception it
would be a fallacy to assume that there was among the drafters a
preconceived notion to replace a “French” code with a “German” one.
Rather, the plan of action called for a careful deliberation of each
of the five books of the existing draft, article by article. Furthermore,
traditional customary law was to be taken into consideration to the
utmost extent possible. It was also the stated objective of the council
to consider the latest achievements of Western legal science and codification. This led by necessity to a closer focus on the pandectist system,
since it was widely recognized as the most “modern” development.
Over the course of a mere three years Hozumi, Tomii, and Ume
accomplished the remarkable feat of producing final drafts of three
books of the code, namely “General Provisions” (sòsoku), “Real Rights”
(bukken), and “Obligations” (saiken). These three books were promulgated in 1896. The books on Family Law (shinzoku) and on Inheritance
(sòzoku), being the parts most susceptible to potential criticism, were
completed after further revision by early 1898. The whole Civil Code
officially came into effect on July 16, 1898.
The structure of the New Civil Code followed that of the German
Civil Code (BGB) closely, with the exception that in the former the
order of the books on Real Rights and on Obligations was reversed.34
The most obvious difference from the Old Civil Code was of course
the existence of a book entitled “General Provisions”. This fact alone
was sufficient for many to label the Japanese Civil Code a “carbon
copy” of the BGB. Oddly enough, although this new code was as
“foreign” as the old one had been, no major controversy followed
its promulgation. What did occur was a tremendous increase in interest in German law, culminating in the wide spread belief that “any
law other than German law is not law.”35
In fact the Japanese Civil code is not a simple “carbon copy” of
the BGB, just like Boissonade’s Old Civil Code had not been the
mirror image of the Code civil. It was rather a blend of several different
34
There is reason to believe that the drafters followed the example of the Civil
Code of Saxony in arranging the order of books.
35
For a discussion of this phenomenon in English see Tanaka, pp. 209–213.
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civil code
legal sources. The process of the revision applied a pandectist system
to the provisions of the Old Civil Code, while at the same time considering a large number of other foreign codes as well. After all, the
drafters were specialists of French (Ume and Tomii) and English
(Hozumi) law, and Hozumi as the senior council member was interested in problem of comparative jurisprudence. Moreover, the last
two books of the new code took existing customary law into consideration to a large extent.
Overall the New Civil Code retained much of the French inspired
contents36 of its predecessor while following the pandectist principle
of organization. Does that make the code a member of the “French”
or of the “German” legal family? This question, while of obvious
interest o the comparative jurist,37 should not be the focal point for
the historian of Japanese law. What is important from the point of
legal history is the fact that with the enactment of the Civil Code
in 1898, Japan had adopted a comprehensive legislation based on
the principles of individual rights, freedom of contract, and property.
The first book of the Civil Code, entitled “General Provisions”
(sòzoku), consists of 174 articles and is subdivided into six chapters
covering “Persons”, “Juridical Persons”, “Things”, “Juristic Acts”,
“Periods of Time”, and “Prescription”, respectively. In the following
we will take a closer look at some of the provisions and their history.
3.1.2. General Provisions: Persons (Arts. 1–32)
3.1.2.1. Capacity or Enjoyment of Rights and Capacity of Action
Japanese jurisprudence distinguishes between natural persons (shizenjin) and juridical persons (hòjin), the first chapter of the “General
Provisions” deals with natural persons only. A person is considered
to be the subject of rights, in other words, a person should be capable of exercising rights over property and of enforcing claims against
others. Persons have the capacity to exercise private rights, i.e. the
36
For two specific examples see Kiyoshi Igarashi, Einführung in das Japanische Recht
(Darmstadt; Wissenschaftliche Buchgesellschaft, 1990) p. 5.
37
See for example the passionate argument made by Hoshino Eiichi in his “Nihon
minpòten ni ataeta furansu minpò no eikyò ” (Influence of French Civil Law upon the
Japanese Civil Code) in Nichi-Futsu Hògaku 1, 1965. A partial English translation is
found in Tanaka, pp. 229–235.
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capacity of action, or disposing capacity (kòi nòryoku),38 and the capacity of enjoying private rights, usually termed “capacity of rights” (kenri
nòryoku).39 The actual term capacity of rights is absent in the language
of the code itself, Article 1 speaks instead of the “enjoyment of private rights” (shiken no kyòyù). The capacity of rights begins with the
completion of the birth40 (Art. 1) and ends at death. With regard to
the capacity of action, the Civil Code stipulated that a person acquires
such full capacity upon reaching age 20 (Art. 3). Persons not possessing full capacity of action (incapacitated person, munòryokusha) were
minors, incompetent persons (kinjisansha), partially incompetent persons ( jun kinjisansha), and, until the post-war reforms, wives. Incapacitated person are either not capable to engage in juristic acts (hòritsu
kòi ),41 in which case such acts are automatically void (Art. 9), or are
only capable to do so with permission of a guardian or legal representative (hòtei dairinin).
The Meiji government had begun to lay the groundwork for the
recognition of individual rights in a variety of ways since shortly after
the Restoration. The four status groups that had existed since the
late 16th century, namely warriors, peasants, artisans and merchants,
were abolished, and with the enactment of the conscription law in
January of 1873 the old samurai class had lost its functional status
distinction as well. Peasants obtained the right to have surnames,
and in 1871 the government officially emancipated the outcasts
(burakumin) by designating them “new commoners” (shin seimin). The
first act to limit the sale of humans came in 1870, when a government
edict discouraged the sale of children to Chinese buyers. By 1872
indentured service was tightly regulated and the traffic in humans
as slaves was generally forbidden. A decree issued by the Ministry
of Finance in August of that same year admonished local officials to
put a stop to discriminatory practices against outsiders in village communities, since this was injurious to “harmony amongst the people”.42
There is no evidence of any rights enjoyed by the unborn in either
38
Equivalent to the German “Geschäftsfähigkeit”.
“Rechtsfähigkeit”.
40
In cases of claims resulting from claims for damages or inheritance an unborn
child is considered a person.
41
“Rechtsgeschäft”.
42
See Hosokawa Kameichi, Nihon kindai hòseishi (Tokyo: Yùhikaku, 1961),
p. 168.
39
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Edo or early Meiji Japan. Since in many places children were not
registered at the local temple before age 4 or 5, one can assume
that the stipulation of Article 1 of the Civil Code about the enjoyment
of rights at birth was considerably broader than accepted custom. The
age upon which a child attained maturity varied from region to region,
but was not normally lower than 15. Government decree No. 41 of
April 1876 determined twenty years as the age of maturity.43 A minor
had traditionally needed the consent of a guardian to engage in business, and the Civil Code confirmed this.
With regard to other categories of people whose capacity of action
was circumscribed, several points deserve mention. First, married women
had traditionally been considered subordinate to their husbands and
unable to conduct business on their own.44 This subordinate position
was confirmed in the criminal code of 1880 and was also incorporated
into the Old Civil Code. The New Civil Code preserved this proposition in the interest of family harmony. Second, there is very little
evidence regarding the treatment of mentally or physically handicapped
people in traditional Japan. The category of incompetents first appears
in the 1880 draft of the Criminal Law. Following accepted Western
practice at the time, both mentally and physically handicapped people
could be found wholly or partially incompetent. Article 11 of the
new Civil Code stated for example that deaf and blind person could
be found to be quasi-incompetent.
3.1.2.2. Domicile and Disappearance
The problem of domicile ( jùsho) of a person has legal significance
insofar as it influences the validity of a variety of legal acts, such as
contracts, marriage and adoption, succession etc. The Civil Code
defines domicile as the place of a person’s livelihood (seikatsu no honkyo).
There is an implied difference between domicile and place of residence
(kyosho) according to Art. 22, which stipulates that the place were a
person resides shall be considered his domicile only if the actual
domicile of the person is unknown. Moreover, the code recognizes
the concept of provisional (temporary) domicile (kari jùsho). The
43
Ibid.
It should be noted, however, that in Japan this was a relatively recent development, since throughout the Middle Ages women had enjoyed considerable property rights independent of men.
44
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191
temporary domicile is considered the domicile only with regard to
the specific act for which it was set up.
The rigid social order of the Edo period necessitated close control
over the movement of people, not only the social station of an individual was fixed, but so was his place of residence. This was especially
important in the countryside where peasants were bound to the land
in a system that has been described as serfdom. Commoners were
usually registered at a local Buddhist temple, partially in order to
enforce laws forbidding the practice of Christianity more easily. Leaving
one’s domicile was considered absconding, individuals were subject
to mandatory return to their place of residence. Another form of
registration was found in the registers of the “Five Men Associations”
( goningumi ), units of five households which were held mutually responsible for criminal acts committed by any of their members.
The Meiji government abolished both the old system of four status
groups and the goningumi system, thus ridding itself of a reasonably
functioning registration system. Needless to say, the events surrounding
the Meiji Restoration had led to considerable upheaval and some
dislocation of people, especially samurai. The new government consequently issued an edict in August of 1868 ordering samurai to
return to their places of residence. Since such orders were relatively
ineffective due to the lack of consistent enforcement, early Meiji
period criminal legislation included provisions providing for punishments of absconders. Willful absconding thus continued to be viewed
as a criminal act into the early Meiji period.
The official end of the old status system came with the enactment
of the Household Registration Law (Kosekihò ) in 1871. This law provided for registers to be kept at all localities, and for people to be
registered therein regardless of their former status. Starting from
1875, marriages, adoptions, and divorces had to be registered in
order for them to be considered legally valid. The Old Civil Code
recognized the place of registration as the domicile even in cases
where the person’s livelihood was located elsewhere.
In the early Meiji period the problem of disappearance (shissò )45 was
not separated from the criminal offense of absconding. Criminal law
prescribed punishments for people who left their domicile until 1877,
while the Household Registration Law mandated that disappeared
persons be searched for by their kin. Disappearance was not treated
45
See Ishii (note 26), pp. 607–608.
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as a matter of private law, searching for disappeared persons became
an official investigative act. The procedure, closely linked to the traditional treatment of absconders, was abolished in 1878.
The Civil Code devotes Articles 25–32 to the problem of disappearance. The problem is a significant one for matters of property
management and inheritance. Upon the petition of an interested person (rigai kankeinin) a court may deem a person to have died if that
person has not been heard from for seven years, less in cases of war
or natural or other disasters. Before such a decision is made managers to the property of the missing person may be appointed by
the court at the request of an interested party. Should a person reappear after having been declared dead, the declaration of death issued
by the court can be revoked at that person’s request. The same is
true if the person is found to have died at a different time than that
determined by the court, in which case an interested person can
demand the revocation of the court’s earlier ruling. Legal acts done
in good faith (zen’i o motte nashitaru kòi ) will not be affected by such
revocation, though restitution of property is required from a person
having profited from the earlier declaration of death. There has been
some discussion about the extent to which the remarriage of a spouse
is covered by this provision.
3.1.3. Juridical Persons (Arts. 33–84)
A juridical person (hòjin) is any entity that has the capacity of possessing
rights but is not a human being. Civil law distinguishes between
public juridical persons, generally establishments for public purposes
(administrative divisions, schools, hospitals etc.), and private juridical
persons, private entities created to either earn profits or to promote
certain public interests. The Civil Code recognizes two different kinds
of private juridical persons, namely associations (shadan)46 and foundations (zaidan).47 The theoretical difference between the two categories48
is of no consequence for the provisions of the Civil Code. The
important differentiation is between a for-profit and a not-for-profit
46
Equivalent to the German “Verein”.
“Stiftung”.
48
An association denotes an aggregate of persons, while a foundation is considered an aggregate of property.
47
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193
association. The former, being deemed a commercial association is
subject to the provision of the Commercial Code, while the latter is
covered in this section of the Civil Code. The law only recognizes
charitable foundations. Associations or foundations that do not have
charitable or commercial purposes are not recognized as juridical
persons.
Juridical persons enjoy the capacity of rights and the capacity of
action within the scope of their objectives as stated in their by-laws
(Art. 43). Likewise, a juridical person is liable for damages to others inflicted by its agents while acting in discharge of their functions
(Art. 44). In order to be deemed a juridical person and to legally
act in this capacity, an association or foundation is required to be
registered with the competent authorities. The domicile of a juridical
person is its principal office. No foreign juridical persons are recognized
by the Japanese Civil Code, with the exception of states, administrative
divisions of states and commercial companies (Art. 36). A juridical
person ceases to exist when it is dissolved in accordance to its bylaws,
as consequence of bankruptcy, or by the revocation of its registration (Art. 68).
The Civil Code treats the phenomenon of a juridical person in
remarkable detail. No less than 16 articles deal with the management
of a juridical person alone. In contrast, the Old Civil Code devoted
a total of only two articles to the problem of juridical persons, stating that a juridical person had to be registered and was required to
follow the law in order to have the capacity for rights and actions.49
Over the course of the Meiji period the concept of a juridical person crystallized in mostly in judicial practice. Corporate entities had of
course existed during the Edo period and before. The most significant
of those entities was without doubt the village (mura).50 Rights of the
village community over common land were generally recognized, and
the village community had thus, to use an anachronistic term, a certain capacity for rights. Moreover, villages discharged their duties as
a unit as well. Villages could be held collectively responsible for criminal acts committed by members of the village community.
Although the Meiji Restoration changed this situation considerably,
villages continued to be recognized as administrative units. With the
49
See Ishii (note 26), p. 609.
For commercial enterprises please refer to the section on Commercial law,
below.
50
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election of elders and representatives, villages became even closer in
character to juridical associations. The Supreme Court recognized
in a 1885 decision the right of villages to sue each other and thus
confirmed their practical standing as juridical persons.51
Another category of institutions that enjoyed quasi-juridical person status in pre-modern Japan were temples and shrines, which also
functioned as corporate entities. As landowning entities they enjoyed
rights of acquisition and disposal. This aspect would have mandated
their inclusion the category of associations in a modern civil law system. On the other hand, religious institutions would have to be considered foundations by virtue of the fact that they are not profit
oriented. A court decision of 1885 regarding a temple’s rights over
land described the temple as an “incorporeal human entity” (mukei
jintai ), capable of performing acts and engaging in business.52
There was thus a tradition recognizing rights, obligations and liabilities (criminal and civil) of non-human actors before the detailed
guidelines of the Civil Code came into force.
3.1.4. Things (Arts. 85–89)
A thing (mono) as defined by civil law is the object of a right (kenri
no mokuteki ). The Japanese Civil Code recognizes only material things
( yùtaibutsu). Although various other ways of classifying things are recognized in legal scholarship, the Civil Code distinguishes only between
immovables ( fudòsan) and movables (dòsan), and between principal
things (shubutsu) and accessory things ( jùbutsu). All things other than
land and things connected to land are considered movables, including obligations to bearer (Art. 86). An accessory thing must be
attached by the same owner to the principal thing for the purpose
of making use of the principal thing. If that is the case, it is automatically deemed to be subject to the disposition of the principal
thing (Art. 87). The code also distinguishes between natural fruits
(tennen kajitsu) and legal fruits (hòtei kajitsu), i.e. interest etc.
The treatment of things in the Japanese Civil Code follows the
German example very closely, without providing as detailed a description. This was perhaps a reaction to the overly detailed treatment
51
52
See Hosokawa (note 42), p. 170.
Ibid.
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195
of things in the Old Civil Code. The Old Civil Code had also provided a category for incorporeal things that had come under some
criticism during the codification debate.
An abstract legal category for things does not appear to have
existed in traditional Japan. The first attempt to classify things into
movables and immovables was made as early as 1872, and in early
1873 a proclamation by the Ministry of Justice defined movables as
“money, clothing, furniture and similar things that can be carried
about,” and immovables as “land, buildings and similar things that
cannot be carried about.”53
3.1.5. Juristic Acts (Arts. 90–137)
3.1.5.1. General Provisions
The Japanese Civil Code adopted by and large the German concept
of the “juristic act” (Rechtsgeschäft), without, however, copying the structure of the German Civil Code or providing the same amount of
detail. In particular, there is no specific section on contracts in the
first book of the Japanese code. Juristic acts (hòritsu kòi ) are generally
defined as acts that have been made intentionally and result in the
acquisition or loss of a private right. They are juristic insofar as they
are recognized by private law. The most important component of the
concept of the juristic act is the intention that is being expressed by
the parties. Consequently, the code deals with this problem extensively.
The code generally distinguishes between unilateral, or individual,
acts (tandoku kòi ) and bilateral acts, or “contracts” (keiyaku). The bulk
of the provisions in the section under consideration deal with the
latter. According to the provisions of the code most juristic acts are
informal, i.e. there are no stipulations as to specific forms that would
make a juristic act valid or the absence of which would void such
an act.
Only three articles (90–92) deal with general provisions of juristic
acts and their interpretation, however, they are reflective of the intentions of the drafters to rely on customary law whenever possible.
The code stipulates that juristic acts that violate public order are
void. On the other hand, the intentions of the parties have priority
53
Proclamation #9 of January 13, 1873, as quoted in ibid., p. 171.
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over provisions of law unrelated to public order (Art. 91), and in
case custom differs from statutory law parties may choose to follow
that custom rather than statute (Art. 92).
Over the course of the early Meiji period the concept of “good
custom” changed considerably. A case in point was the effective
criminalization of such practices as long-term indentured service, the
pledging of humans as collateral for loans or the outright sale of
human beings, especially children. Government edicts forbidding such
practices in effect voided all contracts containing provisions of that
kind as “unethical”. In other words, parties were not bound by a
contract whose effect would be in violation of good morals as defined
by the state. By issuing such edicts the government effectively removed
such institutions as indentured service and debt “slavery” from the
sphere of private law and made them the subject of public law.
Customary law played a tremendous role in early Meiji judicial
practice. The Ministry of Justice issued a series of regulations and
directives over the course of the 1870s specifying the meaning and
usage of “custom” (kanrei, kanshù). Generally, custom was recognized
as an important source of law, albeit a supplementary one. Custom
was followed in the absence of written law, but it did not supersede
written law. The provisions of the Civil Code go considerably further by allowing the intention of the parties to override written statute
(as long as public law was not violated) and to follow customary law
instead. On one hand these provisions were reflective of the huge
role that intention plays in the general theory of juristic acts. On
the other, in allowing custom to override statute they were echoing
the tradition of both the Historical School of Law imported from
Europe and of premodern Japanese legal practice.
3.1.5.2. Expression of Intention (ishi hyòshi)
Following the German lead the Japanese Civil Code pays considerable attention to the question of intention in its treatment of juristic
acts. The expression of intention is the main part of the juristic act,
or one could even say it is the juristic act, insofar as it is made in
order to have an effect under private law. The code does not define
the expression of intention itself, nor does it stipulate that such an
expression take any specific form. Rather, it assumes all declarations
of intention to be valid except in cases when the expression is actually at variance with the intention. In particular, an expression of
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intention that was made without it being the true intention (mental
reservation) is valid unless the other party had reason to know the
true intention (Art. 93). A fictitious expression of intention made with
the other party’s consent is invalid, however, a third party acting in
good faith (zen’i no daisansha) is not affected by its invalidity (Art. 94).
Another cause of invalidity of an expression of intention is mistake
about the character of the juristic act, but not in case of gross negligence (Art. 95). Furthermore, fraud and compulsion are considered
sufficient cause for the annulment of an expression of intention. A
third party acting in good faith is protected in cases of fraud, but
no in cases of compulsion (Art. 96).
An emphasis on the freedom of contracting parties and on the
true intention in juristic acts under dispute is discernible throughout
the early Meiji period. Agreements of all kinds had traditionally been
made without resorting to formal instruments, and although the problem of intention had not been classified as such it did play a significant
role in everyday business practice. However, starting as early as 1870,
the Meiji government issued a slew of regulations specifying the forms
of contracts, the kinds of seals and signatures to be affixed to them
etc. This was evidently an early reaction to perceived Western practice,
since the first regulation applied specifically to contracts concluded
with foreigners in treaty ports. In a memorandum the Ministry of
Justice send to the president of the Right Chamber in June of 1877
the desire for a regulation to interpret contracts “in the spirit of
French Law” was stated. Such a document was circulated a month
later.54 It stressed the importance of considering the parties’ intention
over a literal interpretation of the terms of the contract.55 The Old
Civil Code had contained a multitude of provisions dealing with a
discord between intention and expression. In the cases of fictitious
declarations, mistakes, and fraud and duress provisions of the Old
Civil Code were simplified. However, the old code had no provision
for mental reservation.
This particular article was taken from the BGB, together with the
general order of provisions in this section. The drafters decided to
follow the BGB also in providing that a declaration of intention
given over distance took effect upon reaching its destination, rather
than upon being made by the sender (Art. 97).
54
55
See Hosokawa (note 42), pp. 173–174.
For an English translation of this document see Ishii (note 26), pp. 611–612.
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198
3.1.5.3. Representation (dairi)
Acting through representatives (dairinin) in business dealings had been
commonplace in traditional Japan and continued to be of importance in the Meiji period and beyond. The Civil Code, by and large
following the provisions of the BGB, devotes a significant part of the
chapter on juristic acts to the problem of representation. A principal
is generally bound by the expression of intention made by a representative acting within his authority (Art. 99). The code distinguishes
between legal representatives (hòtei dairinin), e.g. guardians, and representatives by mandate (inin dairinin). The former have the right to
appoint substitute representatives upon their own responsibility (Art.
106), while the latter can do so only with the consent of the principal
(Art. 105). Representatives need not have full legal capacity (Art. 102).
Legal acts performed without power of representation or in excess
of the scope of that power are not binding on the principal (Art. 113),
unless the principal made a declaration about having given another
the power of representation to a third person (Art. 109). In cases of
such unauthorized representation the principal normally has the discretion to ratify or not ratify the transaction. However, parties acting in good faith are protected in cases of fictitious representation.
The history of the institution of legal representatives in the Meiji
period suggests that from early on the appointment of a representative
was considered a bilateral legal act rather than a unilateral one. On
June 18, 1873, the Meiji government issued Edict #215 concerning
representatives. Given the fact that at this early stage such actions
by the government were reactive rather than proactive, one can easily draw the conclusion that usage of representatives was commonplace in business dealings. The edict clarified the meaning of “principal”
and “representative”, both had to be of sound mind and had to be
adults in order to enter such a relationship. A distinction was made
between general representation and partial representation. Furthermore,
a representative had to have a written power of attorney stating the
exact scope of his authority in order to conclude contracts, though
not for the conduct of ordinary business at the principal’s office.56
The Civil Code simplified matters considerably, and it did so by
concentrating on the relationship between the principal and a third
person, rather than on the relationship between principal and
representative.
56
See Hosokawa, p. 172 for a summary of the provisions.
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199
3.1.5.4. Void and Avoidable Acts (mukò oyobi torikeshi)
In contrast to the German Civil Code that covers void and avoidable
acts as part of the section on Expression of Intention, the Japanese
Civil Code devotes a separate section to this question. Void acts do
not have a legal existence. Consequently, no action is required in
regard to such acts and no expression of intention or ratification will
make such an act valid (Arts. 119, 124). Avoidable acts, however, do
require the act of an annulment to be considered legally invalid. Article
120 stipulates that a defective intention of expression due to incapacity
makes a juristic act avoidable. As we have seen in the section on
expression of intention, in cases of fraud or compulsion a juristic act
is also avoidable. According to the provisions originally set forth in
Articles 120 and 124, a husband could void juristic acts of his wife.
This stipulation is reflective of the fact that wives were considered
partially incapacitated in accordance with Article 14 of the code.
Legal rights of married women, especially with regard to the management and disposition of property had been increasingly limited
since the Muromachi period (1336–1573). During the Edo period this
tendency became even more noticeable, and by the time of the Meiji
Restoration, married women had essentially lost the right to conduct
business on their own. The drafters of the code, taking into consideration customary law, decided to include these provisions to forestall criticism that the code was designed to erode traditional morals
and the family system.
3.1.5.5. Conditions and Time Limits ( jòken oyobi kiken)
In its treatment of conditions and time limits the Japanese Civil Code
follows the basic provisions of the German BGB, however, the provisions of the Japanese code cover considerably greater detail. A condition is defined as “an incidental expression of intention included
in a juristic act which causes the validity thereof to depend upon
the happening of a subjective uncertain fact”.57 Generally, the code
distinguishes between conditions precedent (teishi jòken), which cause
a juristic act to become valid, and conditions subsequent (kaijo jòken),
which cause the avoidance of such an act (Arts. 127, 132). Juristic
Quoted in J.E. de Becker, Annotated Civil Code of Japan (London: Butterworth
& Co, 1909), p. 130.
57
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acts subject to either unlawful conditions ( fuhò jòken) or impossible
conditions ( funò jòken) are void by definition, since in the first case
such an act would violate public law, while in the second a defective expression of intention would have to be assumed (Arts. 132
and 133, respectively). In cases of pending conditions (mihatsu jòken),
i.e. conditions in which the event has not yet happened, parties may
dispose of their rights and obligations (Art. 129), without, however,
impairing the advantages of the other party (Art. 128).
Time limits are, in a way, specific conditions relating to the time
at which a juristic act becomes effective or void. In contrast to the
Old Civil Code, the New Civil Code determined that a debtor could
not claim the benefit of time limits when he was declared bankrupt
(Art. 137).
Evidence is scant with regard to the use of time limits and conditions
in contracts of the early Meiji period. However, in conjunction with
the issuance of regulations governing the forms of contracts and seals
mentioned above, the Meiji government also issued directives regarding the use of dates in contracts. Specifically, Edict #212, issued in
1873 made the use of the year/month/day formula mandatory and
stipulated that documents with abbreviated dates, i.e. without indicating
the day, were not to be considered as evidence in court proceedings.58
3.1.6. Periods of Time (Arts. 138–143)
Chapter 5 of the book on General Provisions follows in its computation of periods of time (kikan) by and large the German model. Periods
of time calculated in hours commence immediately (Art. 139), while
in the case of periods of time fixed by days, weeks, months, or years
the first day is not counted (Art. 140). The code intends to define
periods of time in general, other codes do, however, contain their
own provisions about time periods. The most important function of
time periods with regard to the provisions of this book is perhaps
seen in the chapter on Prescription (see below). In addition, the computation of time periods is of course significant for such acts as avoidance and ratification. Periods of time matured at the last day of the
period specified.
58
See Hosokawa (note 42), p. 174.
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201
The Gregorian calendar was officially introduced in Japan on
January 1, 1873. Traditionally, years had been calculated according
to a lunar calendar, with years usually identified either by the
sexagenary cycle or by era names (nengò). Interestingly enough, changes
in era names became effective immediately, not with the start of the
new year. Lunar months were 29 or 30 days in length, thus an additional intercalary month had to be added every few years. An unofficial
solar calendar was also in use, mostly to calculate agricultural seasons.
The most important innovation was the introduction of the concept
of a seven-day week, since no such subdivision of the month had
been in use previously. The Civil code copied the provisions about
not letting a time period mature on a Sunday as a matter of course,
but added, almost as an afterthought, that this provision applied only
in cases when it was customary not to do business on such a day
(Art. 142).
With regards to times of day, the Meiji era brought important
changes as well, introducing the 24-hour day for the first time.
Traditionally, times of day had been computed by using the 12
branches of the hexagenary cycle, reserving half for daytime, and
half for nighttime. There were thus no fixed-length hours.
Business dealings with foreign merchants brought such very fundamental discrepancies to the attention of legislators. The inclusion
of these provisions in the New Civil Code and other laws in a way
completed the transition from the traditional system of counting time
and computing time periods.
3.1.7. Prescription (Arts. 144–174a)
The New Civil Code, following the example of the German BGB, considered the problem of prescription ( jikò ) in a separate chapter of
the Book on General Provisions. The Old Civil Code had included
prescription in the book on evidence, since it was viewed there as
a legal presumption which was considered a form of evidence.59 The
new code covers in this section two kinds of prescription. These are
extinctive prescription, i.e. the extinction of rights after they have
not been exercised for a stipulated period of time, and acquisitive
59
Ishii (note 26), p. 614.
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prescription, i.e. the acquisition of rights after a specified period of
time in which the acquirer is in possession of the object of this right.
Not only obligations, but also rights, including property rights are
subject to prescription. However, property rights are extinguished
only by virtue of the fact that another person who was in possession of the property over a specified period of time claims acquisitive prescription after the specified time period elapsed.
The code does not specify a general time period for prescription
like the BGB, however, obligations are extinguished after 10 years
and property rights after 20 years (Art. 167). Articles 168–174a cover
a number of cases in which the time period for prescription is considerably shortened. These include everyday business transactions of
various kinds.
Prescription generally means that a right has been extinguished,
however, the court may not base a judgment on prescription without it being claimed by an interested party (Art. 145). On the other
hand, a transfer of rights as a result of prescription is valid without
court intervention The code specifies a variety of causes for the interruption and for the suspension of prescription. Causes for interruption
include demand, attachment and acknowledgment (Art. 147), while
causes for suspension are incompetence of the affected person (Art.
158), inheritance (Art. 160) and natural calamities (Art. 161). The
time period of prescription starts with the moment when the right
in question could have been exercised (Art. 166).
Many of the provisions set forth in the New Civil Code were
already found in the Old Civil Code of 1890. However, in the old
code had stipulated different time periods and had only provided for
extinctive prescription in the case of obligations.60
Over the course of the Meiji period edicts concerning time limits
had mostly dealt with procedural matters. In particular, the question
of when a suit could be brought was the subject of several regulations.
For example, a time limit on bringing suits regarding short term
loans was first set in 1873. A memorandum sent by the Ministry of
Justice to the Grand Council of state explained the reasoning behind
such rules thus:
In case of a loan the lender has no right of recovery within the time
period stated in the loan agreement. The borrower may freely use the
funds. The right of the lender to collect commences when the loan
60
See ibid., p. 615.
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203
matures. Should the lender fail to try to collect for ten years from the
moment of maturity, the law recognizes the borrower as the rightful
owner and the lender as having relinquished his right. On this basis
the time limit for bringing a suit in such matter has been decided on.61
Stipulations in the New Civil Code about different periods of prescription for different kinds of transactions were also reminiscent of
similar regulations issued as early as 1874. However, it should be
pointed out that the aim of such regulations in the early Meiji years
was first and foremost procedural and obviously intended to lighten
the case load courts were facing. The drafters of the Civil Code, on
the other hand, could claim to include such stipulation with the
intent of protecting rights and promoting security for transaction by
eliminating uncertainty over questions of ownership.
3.1.8. The Civil Code in the 20th Century
After the enactment of the Civil Code in 1898 changes in the legal and
business environment necessitated small changes in several of the
provision that had, however, no significant impact on the overall
character and quality of the code. Perhaps the biggest change affecting
the code was brought about by the defeat of Japan in World War
II and the subsequent American Occupation. This brought with it
a number of reforms that would affect some of the rules set forth
in the Book on General Provisions of the Civil Code. In particular,
Article 14 of the 1947 Constitution which stipulated the equality of
all people and prohibited discrimination based on race, creed, sex,
social status or family origin rendered some provisions of the Civil
Code obsolete. Consequently Law #222 was enacted in 1947 in order
to amend the code accordingly. Some of the most noteworthy changes
of the Book on General Provision shall be briefly noted here.
The code now begins with a statement of General Principles (Kihon
gensoku), designated Article 1a. They read:
Individual rights are secondary to public welfare.
The exercise of rights and the fulfillment of obligations should be
conducted in good faith.
Abuse of rights is not permitted.62
61
62
Quoted in Hosokawa (note 42), p. 175.
For the text see Pokketo Roppò (Tokyo Yuikaku, 1996), p. 289. Translation my own.
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These principles did have a significant impact on the judicial practice in postwar Japan.
A more immediate impact on the structure of the first book of
the code had the stipulation that was added at the same time and
became Article 1b. Entitled “Principles of Interpretation”, this article
stipulates:
This code shall be interpreted on the basis of the dignity of the individual and the fundamental equality between the sexes.
Needless to say, this provision had a significant impact, especially on
those provisions in the general section that the drafters of the code had
included in order to “reflect Japanese custom”. It was now impossible to accord married women the status of quasi-incapacity and to
accord their husbands powers approaching those of guardianship.
Consequently, Articles 14–18 of the code that had rendered married
women incapable of conducting business on their own were stricken
from the code. Also affected were Articles 19, 120, 124, and 159 that
had been treating married women as quasi-incapacitated. These articles were amended accordingly to reflect the provision of Article 1b.
Overall, however, the Book on “General Provisions” of the Japanese
Civil Code has proven to be a remarkable achievement of legal
scholarship and legislative genius. Promulgated first in 1896 it remains
in force largely unaltered in form and substance to the present day.
property law—real rights
3.2
205
Property Law—Real Rights
Hans Peter Marutschke
1. Preliminary
During the Edo Period, the enjoyment, of private rights was rather
restricted, depending on the individual’s personal status or rank,
which itself varied in many degrees. It was thirty years after the
Meiji Restoration, in 1898, that the New Civil Code guaranteed the
enjoyment of private rights in principle to all persons by virtue of
birth. One of the most striking unequal “legal” treatments of that
time was, for instance, the restriction of the legal capacity of married women. Since that time a radical change in the awareness of
private rights has taken place, which has been prepared and accompanied by Government Ordinances.
Some of these concerned the concept of real rights, which was,
for instance, influenced by the 1870 government’s directive to the
local authorities to suppress the sale of Japanese children to Chinese
buyers, or by the prohibition in 1875 of giving individuals as security for loans. These examples indicate already a part of the status
of real rights—especially property law—not only within the modern
legal orders. Rarely is any other field of law so intensively connected
with questions of political system, social justice and economic power.
This fact prompted Blackstone about 200 years ago, “There is nothing which so generally strikes the imagination, and engages the
affections of mankind, as the rights of property. . . And yet there are
very few that will give themselves the trouble to consider the original and foundation of this right.”1 Japan is no exception in this context: the process of modernization has—at least during the first two
decades after the Restoration—been dominated by political and economic measures concerning property through Land Tax Reform.2
Although we are treating here a matter of civil law, it is necessary to give a short overview of certain fundamental measures of the
1
W. Blackstone: Commentaries on the Laws of England, vol. 2, p. 2.
For the most diligent research on this subject refer to M. Fukushima: chisòkaisei no kenkyù (Studies on Land Tax Reform), 1970.
2
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new government, which belong to the fields of public law, politics
and economics, because they had a strong impact on the conceptional change of real rights.
As mentioned already in Steenstrup’s “Japan—legal history until
1868”, land had been bestowed during the Edo Period by the
Tokugawa shogunate as fiefs upon Daimyò, who collected dues or
taxes in kind from farmers in exchange for the right of land use.3
The concept of landownership, however, was not exclusive but ambiguous and overlapping. This led to quite unequal and uncertain taxburden relationships and social unrest.
The Meiji Government saw that it would have to clarify the confusion in Tokugawa’s landholding customs by establishing single ownership and tax liability for a given piece of land. The first step in
this direction had already been taken on December 18, 1868, with
the ordinance No. 1096 recognizing farmers’ landownership on a
legal basis, introducing, on the one hand—as a new legal concept—
the principle of free disposition of landed property, including sale,
officially replacing the Tokugawa Law of 1643 on the prohibition
of buying and selling land (officially by ordinance No. 50 from 1872),
on the other hand, while linking tax liability with private ownership.
All the clans had already, in 1871, volunteered to return their ‘property’ rights on domains to the Emperor, completely abolishing the
ancient feudal system of landholding. The following year, a notification
as to the classification of land was promulgated, whereby it was
divided into two classes called ‘public lands’ and ‘private lands’, but
soon after that the notion ‘private’ was changed to ‘people’s land’.
In 1875 the names of landowners were inscribed on the title deeds,
which had already been issued three years before. In the formula of
these title deeds it was noted that everyone in the Japanese Empire
who owned land ought to have a title deed. Although the Civil Code
did not yet exist, the title deed could be regarded as the owner’s
property title in private law. Whereas the privatization of land could
be obtained in Europe only by means of weapons, in Japan the subordination of land under the uniform administration of the government and its subsequent bestowal upon the people was smoothly
3
C. Steenstrup: A History of Law in Japan until 1868 (1991), pp. 117, 139.
207
accomplished through voluntary renunciation by the different clans.
Despite problems relating to the inequality of landholding etc., the
Land Tax Reform was successful in providing the national government with a solid financial basis. Before 1887 more than 60 percent
of the nation’s revenue derived from taxes. The reform also supplied
the institutional means of diverting the wealth of rich farmers from
agriculture into other sectors of the economy. Land could be mortgaged as private property, furnishing valuable capital for industrial
enterprises. These social and economic circumstances had to be taken
into consideration during the preparations to introduce a Civil Code
in Japan, which had, of course, to be prepared in conformity with
the provisions of the Meiji Constitution.
2. Concept of property-right in Japanese Constitutions
The Meiji Constitution, promulgated on February 11, 1889, had
been elaborated, as mentioned already, with the essential influence
of the German legal advisor Hermann Roesler, who was himself
referring to the Imperial Constitution of Prussia of 1850. The principal guarantee of liberty rights to the people, giving a certain degree
of protection against state intervention, was used in Prussia as well
as afterwards in Japan to suppress movements for liberal rights.
Under the Meiji Constitution property was already protected. After
emphasising State’s sovereignty, the Preamble said:
‘We now declare to respect and protect the security of the rights and
of the property of Our people, and to secure to them the complete
enjoyment of the same, with the extent of the provisions of the present
Constitution and of the law.’ And Article 27 provided, that ‘the right
of property of every Japanese subject shall remain inviolate. Measures
necessary to be taken for the public benefit shall be provided by law.’
The close relation of this formulation to Article 9 of the Prussian Constitution is obvious, from its conception the regulation of this article
conforms with the constitutions of the 18th and 19th century in
Europe and the US, which already guaranteed property as a natural fundamental right, with respect to the idea that property was
indispensable for freedom and independence of the individual. The
big difference, however, was that the notion of freedom rights in
those constitutions had been the result of struggles of the people
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fighting for it, whereas in Japan the main reason for introducing this
fundamental right was not the people’s demand for it, but merely
political calculation: the revision of the so-called Unfair Treaties 4
could only be achieved by adopting a legal system based on these
principles. This position is made clear in the Commentaries of Itò
Hirobumi, who had elaborated the final draft of the Meiji Constitution.
Concerning Article 27, he pointed out that property was subject to
the sovereignty of the state. Referring to some examples concerning
Construction and Mining Law, he stressed the view that property
rights should of course be inviolable, but that it should be taken for
granted that these rights could be restricted: ‘. . . the property of individuals, like their persons, is under an obligation of obedience to the
power of the State. The right of property is one that falls within the
domain of private law, and is not in conflict with the supreme right
of governing the country, which belongs to the sphere of public
law. . . . When it is necessitated by public benefit, private individuals may be compelled nolens volens to part with their property, in
order that the requirements of a given ease may be met. This provision is based upon the right of sovereignty . . .’5
Property could be interpreted, therefore, as having been issued to
the people ‘by ordinance’, as, for example, in the proclamation of
December 1868 which stated that from now on village land should
be in the ownership of the farmers, and the division of land into
categories of ‘public’ and ‘private’. These changes were not made
from the perspective of the concept of property as a fundamental
human right.
Although there has been much criticism of the Meiji Constitution
being used to maintain the ‘kokutai ideology’,6 Roesler showed in
his explanatory commentaries that in respect to the possibilities of
restriction of freedom of property rights this idea was essentially
bound to a social conception of freedom:
4
H. Oyama: Jòyaku kaisei (revision of unfair treaties), in Kawashima et al. (ed.),
Nihon kindaihò hattatsushi (History of the development of modern Japanese law), vol.
2, 4th ed. (1988), p. 177f.
5
H. Itò: Commentaries on the Constitution of the Empire of Japan (1889,
Transl. by M. Itò), p. 57.
6
See G. Rahn: Rechtsdenken und Rechtsauffassung in Japan (1990), p. 68 f.;
D. Irokawa: The culture of the Meiji Period (1985), p. 247f. T. Fukase/Y. Higuchi:
Le constitutionalisme et ses problemes au Japon (1984), p. 66f.
209
The system of property in each state is to be established by law, including usage, upon a national basis and within the limits of natural law,
as mentioned above and the excessive accumulation and use of property by single individuals, as undermining the natural fundament of
property, should be prevented. Also by the commandments of religion
and morals the benefits of property should be made accessible to indigents, by charity and self-restrain of luxury. From this point of view
the establishment and development of a true national system of property is one of the greatest and most difficult legislative problems. The
system of property in Japan has from olden times undergone various
changes. At present it is regulated by the Civil Code according to the
principles of Western jurisprudences, mainly to the effect that all features of feudal property have been abolished; so it is now uniformly
accessible freely and equally to all subjects, without any difference of
orders and classes, under the rules of the civil law.
The present article of the Constitution guarantees the inviolability
of the property of subjects as an acquired right and is thereby protected against any unlawful encroachment by the executive power. But
this does not apply to any changes of the system of property that may
be enacted by the sovereign legislative power by modification of the
civil law, nor to the restrictions of use of property that are or may be
imposed by police and administrative ordinances from various considerations of public interest, as of health, safety, national defence and
prosperity and the like.7
This conception has been influenced by Lorenz von Stein’s idea of
social kingdom, which had a liberal touch but could be adapted to
a conservative political attitude and thus become a principle of the
Meiji constitution with regard to property rights.8
Compared with the present Constitution of 1946, put into effect
on May 3, 1947, the wording of Article 29 is similar to Article 27
of the Meiji Constitution. Indeed the property right is not mentioned
in its Preamble, which stresses instead that the authority of the government is derived from the people, but other than that there is
little difference: ‘The right to own property is inviolable, but property rights shall be defined by law, in conformity with the public
welfare’. Individual property is safeguarded in both constitutions, but
the legislature is empowered to restrict property rights by way of
legislation. But what is missing under the regulations of the Meji
7
J. Siemes: Hermann Roesler and the making of the Meiji State (1968) p. 136.
Coll. J. Pittau: Political Thought in Early Meiji Japan 1868–1889 (1967), pp.
131f., 157.
8
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Constitution is the reference to Article 29 of the present Constitution,
which provides, in sub-section 3, for compensation if private property is used for public purposes. This might indicate, on the one
hand, that in the Meji Constitution the right of sovereignty predominates over individual rights, while on the other hand, it begs the
question as to how far property rights were protected by the Constitution in force. Given that this Constitution was elaborated under
the supervision of the Supreme Command of the Allied Powers
(SCAP), this question is even more justified, because in the general
clause of Article 31 of the Japanese Constitution the notion ‘property’ is omitted, saying only ‘No person shall be deprived of life or
liberty . . .’, whereas the American Constitution specified in its Fifth
Amendment ‘life, liberty and property,’ as generally protected rights.
Of course the definition could be justified by pointing to Article 29
which explicitly protects property rights. But to confirm this attitude
we have to look back to the various drafts of the Japanese Constitution.
Substantially the same guarantees and qualifications of property rights
now included in Article 29 were originally set forth in three separate articles of what is frequently referred to as the MacArthur Draft
of the Constitution.9 Thus the guarantees of property rights and personal liberties which were treated together in the Fifth Amendment
of the American Constitution were deliberately placed in separate
articles in the Japanese Constitution. It must be remembered, however, that the division between property and personal rights is not
always distinct; the provisions of Articles 22 or 28 can also be regarded
as part of the protection of property rights. Additionally the ‘right
of life, liberty and the pursuit of happiness’ provided in Article 13
could be mentioned in this context, suggesting that the omission of
the word ‘property’ from Article 31 was not intended to deprive
property interests of substantial measures of constitutional protection.10
9
See W. Röhl: Die Japanische Verfassung (1963), 159f.
N. Ukai/N. Nathan: Protection of Property Rights and due process of law in
the Japanese constitution, Washington Law Review vol. 43 (1968), p. 1133.
10
211
3. Ideas of property and real rights in the old Japanese Civil Code
As previously mentioned, the French law professor Boissonade had
been invited in 1878 by the Japanese government to prepare a
Japanese civil code. His draft, presented in 1891, contains regulations concerning the right of property, in Art. 31: property was
defined as the natural right to use, enjoy or dispose of things. This
defined the concept of property introduced by the Land Tax Reform.
But it should not be thought of as an “absolute” right, as Boissonade
made clear in his commentary. He therefore gave the different rights
to use property, such as usufruct, use, habitation and contract of
hiring, a stronger position, presenting them as real rights. Usufruct
was the right to use and enjoy for a limited period of time the profits
of a thing that belonged to another; use was the right of usufruct
limited in scope to the needs of the user and his family. Habitation
was the right of a person to live in the house of another without
prejudice to the property. In the New Civil Code, however, these
rights were omitted, apparently on the grounds that they might render the rights of ownership meaningless and thus be incompatible
with the concept of absolute ownership. Many reasons have been
cited as to why the Boissonade Code was finally rejected. The most
frequent explanation is that it was the result of opposition between
the school of French law and that of English Law, but it seems that
the debate was over ideological rather than legal issues.11 The strengthening of property right was a means of strengthening the idea of
economic power as one of the major pillars of modernization of
Japanese society.
4. Real right provisions in the New Civil Code
Comparison of the Old and New Japanese Civil Codes demonstrates
that different categories were used to classify rights, whether real or
personal. But a review of the historical aspects of the development
of rights as titles shows that when the Japanese Civil Code was
11
See Rahn, Rechtsdenken, pp. 95–96; Z. Kitagawa: Rezeption und Fortbildung,
p. 30; concerning Boissonades’ reaction to the critics of his draft see Boissonade:
Les Nouveaux Codes Japonais (1892), p. 15f.
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drafted the distinction between ‘real right’ and title deed did not yet
exist, as understood in modern codifications. A clear distinction
between property right and contract could not, therefore, be developed; the ‘real’ character of a right was understood to be an independent right of usufruct, while the title deed did not presuppose
individual free will. Related to this particular understanding of real
rights is the fact that the land-lease or tenancy system became elaborated in a much more flexible way than in other modern codifications.
The first three books of the Civil Code were promulgated as Law
No. 89 on April 27, 1886, and books four and five became Law
No. 9 on June 21, 1898. Its structure was established on the basis
of the pandect system of the German Civil Code. The Code was
divided into five books, real rights being covered in the second book
as distinct from the obligatory rights or claims covered in the third
book. Consequently, the only real rights recognized in the new Civil
Code were those that were expressly mentioned in the Code or in
other laws (numerus clausus principle in Article 175).
On the other hand, as regards the concept of real rights, the
influence of French law became obvious. As in the French Civil
Code, the creation and transfer of a real right were to take effect
simply through the declaration of will of the person concerned. This
principle of the domination of will (volonté ) was valid not only in
relation to movables, but also to immovables. To make this principle
work in economic exchange, it was provided, that for immovable
property, registration, and for movable goods, delivery, were the primary considerations in a dispute with a third party. Thus the
acquisition, or loss, or alteration of a real right could only be disputed with a third party if the property had been registered according to the Registration Law (Art. 177 Civil Code). The transfer of
a real right in movable goods could only be made to a third party
when the goods had been delivered (Art. 178). These provisions of
Art. 177 and 178 provoked many theoretical and practical problems,
concerning, for instance, the qualification of the third party, of good
faith or the time of transfer, especially in cases where the same thing
was sold to two different persons. So it could occur that a person
who bought a piece of land could not become its owner, because
of the former person who was registered as such. One way of dealing with this kind of problem would have been to invoke the
Registration Law (tòki hò ), which had been introduced as law No. 1
213
in 1886, at a very early stage in Japanese Meiji legislation, several
years before the New Civil Code took effect.
However, the practice of registration did not work smoothly, because
there was no system of independent, self-responsible notaries, as, for
instance, existed in France, who could maintain effective control over
the registration process. The old endorsing and tally seal procedure
was, however, replaced by a new scheme of registration that was to
be handled by the registration offices, which were placed under the
control of the presidents of the Law Courts. There were three types
of register: for land, buildings and ships, the latter two being recognized as individually transferable immovable property. The real
rights, subject to registration, were transfer of ownership, pledges,
mortgages and executed mortgages.
As already mentioned, the Registration Law had to be revised in
order to comply with the actual needs of a changing society and
economic structure. The amendment was concurrent with the revision of the Boissonade Civil Code (kyùminpò ); to distinguish it from
the old law, it was renamed fudòsan tòki hò (Immovable Registration
Law (IRL)) and enforced in 1899. Although the new law introduced
an improved procedure, it could not overcome the structural problems caused by the Civil Code regulation on the transfer of immovable property, on the one hand, and the register system on the other.
I. Revision of the Old Civil Code
1. Possessory rights
The revision of the Old Civil Code affected the section on real rights,
not in its central points already elaborated by Boissonade, but in
the organizational problems caused by the New Code’s adoption of
the pandect system. Possessory rights were, for example, located in the
Old Code between the chapters of servitude and emphyteusis/
superficies, whereas in the New Code they were placed at the beginning of the book of real rights. Legal scholars are still arguing about
the legal character of the possessory right.
On the one hand, the traditional form of Japanese possession of
land (chigyò) and the continued application of traditional Japanese
law is defined as an intermediate to the “possessio” of Roman law
and the “gewere” of German law, whereas possession in the New Civil
Code is regarded as a combination of “possessio” and “gewere”. In the
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Old Code possession was classified as legal possession, natural possession or precarious possession, but possession in the New Code
depended on the possessor’s intention; at the same time there was
no doubt that possession had to be looked at as a legal fact and not
as a title. Concerning the effect of a possessory right, this meant first
of all the right to a possessory action. Whereas in the Old Code
these elements were divided, the New Code combined the right of
possessory action with the entitlement to demand prevention of disturbance of possessions or security for damages, covering movable
property as well as immovable.
Differences to the Old Code also concerned the initiation of or
decision on a petitory action, which did not prejudice the filing of or
judgement on a possessory action. Besides the presumption of right,
which was not regulated as strictly as in the Old Code, the New
Code did not request a possession by just title for acquiring fruits
derived from the thing possessed in good faith.
2. Ownership
The new code defined the essence of ownership as the right of freely
using, receiving the profits of (enjoying) and disposing of the thing
owned. Ways of acquiring ownership were prior possession, that
means taking possession of a thing with the intention of owning it,
finding of lost articles, discovery of hidden treasures and adjunction,
mixture or application of workmanship. So far, no rules had been
introduced that differed from those of western legal systems.
But the formulation of Article 206, which subjects the use of the
right of ownership to limitation by laws and ordinances, was the
result of a compromise with the more liberal formulation of the old
Boissonade Code, which was oriented towards the absolute notion
of the right of ownership as expressed in the French Code Civil.12
It will be useful here to focus attention on the issues of joint ownership and the transfer of ownership.
Although during the Edo Period there had been different forms
of collective ownership (sòyù), joint right ( gòyù) and joint ownership,
12
The discussion about the formulation of the right of ownership must be seen
in connection with the so called codification dispute, which resulted finally in the
rejection of too much liberalism to be introduced in the revised Code. M. Tomii:
Minpò genron, p. 157f.; Rahn, Rechtsdenken, p. 106f.
215
the New Code adopted the principles of the Roman Law of joint
ownership and at the same time acknowledged as a rule of custom
the right of common (iriaiken), which was also recognized as having
the nature of joint ownership. This respect for customs was primarily
carried through because the iriaiken itself did not represent a homogeneous institution, applicable all over Japan; there were several types
of iriaiken, depending on regional difference, which were too difficult
and diverse to be unified in one or even several binding provisions.
The necessity and adequacy of this decision is proved by the fact
that even today there are special commissions and a long series of
decisions treating problems of iriaiken, which have still not unified
standards in this area.
With respect to the fact that the Japanese right of common has
not yet been dealt with in its legal history context, some additional
explanation is due of its meaning and status, reaching back to the
periods before Meiji. The literal meaning of iriai is “to enter collectively”, iriaiken meant therefore “the right to enter collectively”,
and referred to the collective ownership of non-arable areas like
mountains, including forests, marshes, bamboo groves and riverbeds,
but also offshore fisheries. Villagers, who possessed the iriaiken had
to observe rigid regulations, but were allowed to collect from these
areas wood, edible plants, fertilizers etc. As the extent of the iriaiken
was not linked to the existence of the individual village, but to the
existence of several villages considered as an entity concerning this
right of common, it was jealously guarded by the collective.
There were various types of iriaiken, depending on the classification
of ownership; the most common type was the collective ownership
of, for instance, a mountainous region by the inhabitants of several
neighbouring villages, called mura-mura-iriai.
Although generally considered as a common right, in some regions
iriai-land was owned by the daimyò or shogunal government, or even
by private persons. The conflict with this customary law system was
foreseeable, when modern conceptions of property law were introduced to Japan through the Meiji Restoration, especially with the
recognition of private ownership of land resources and the conferring of land titles to protect the properties of legitimate title holders. This led to the preferential treatment of those holding any form
of legal documentation, and consequently the rejection of the approved
customary rights of the iriaiken.
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Another kind of customary right of similar socio-economic importance was that of the right to use hot springs (onsen-ken). In comparison with the iriaiken, awareness of the economic importance of
this right was slow to develop in terms of using these springs as health
spas and tourist attractions. It was only in 1948 that a Hot Spring
Law was passed, recognizing as onsen only those hot springs that
could comply with certain standards, like temperature and mineral
composition, fixed by the government (2300 by 1990).
3. Structure of emphyteusis
The revised Code abolished the system of permanent lease (eishakuken) provided by the Boissonade Code and introduced instead, for
the purposes of agriculture and cattle-breeding, the system of emphyteusis (eikosakuken), aiming originally at the legal acknowledgement of
former existing customs in that respect. The content of emphyteusis was defined as the entitlement of the emphyteuta to cultivate the
land of another person or rear livestock thereon upon payment of a
rent (Article 270). The emphyteuta was not allowed to effect any
alteration which might cause damage to the land, but he could assign
his right or lease the land to another person within the duration of
his right for the purpose of cultivation or the rearing of livestock
(Articles 271, 272). Customs were regarded as preferential in Article
277: if which there existed any customs differed from these provisions, such customs should prevail. But by means of a system orientated the original meaning of emphyteusis, which had the character
of an unlimited part-ownership, became restricted again: its duration was limited by means of Article 277 to a period of fifty years.
Even if a longer period than fifty years had been argued upon, period
had to be reduced to fifty years. The political background of this
regulation was to remove the former system, of feudal sub-ownership of land, which had served to collect duties and taxes, from the
regulations of the revised Civil Code, and to exchange it for a modern right of usufruct. But on the other hand the introduction of
emphyteusis with its special character, that is lacking in other western codifications, shows, too, that the land reform projects of the
Meiji period could not homogenise totally the historically outdated
structures of land ownership; the remedy for homogenisation had
been in fact the institution of emphyteusis.
217
4. Acquisition and loss of real rights
One of the most discussed subjects in real rights law, from the very
beginning of the introduction of the Civil Code, is how to deal with
questions concerning the acquisition and loss of real rights, covered
in Articles 176ff. One of the reasons for the considerable interest of
scholars, as well as of the jurisdiction, is the relatively simple structure of the legal text in Art. 176: “The creation and transfer of real
rights take effect from the mere expression of intention of the parties concerned.” Although this French law influenced formulation
seems to be clear at first sight, different ideas emerged about which
principles and theories of law were ruling Japanese law: the so-called
principle of will (ishi shugi ), or the principle of formality (keishiki shugi ).
As of the principle of will opinions differ as to whether real rights
should be transferred by mere consent as an absolute effect, or
whether consent can only cause relative effect between the parties
of contract and not automatically with regard to third parties. As is
shown in connection with Art. 177, the mere consent in the transfer of property does not have automatical effect vis-à-vis third parties, because this article says that the acquisition, loss and alteration
of real rights relating to immovable property cannot be transferred
to third parties unless the registration is made in accordance with
the provisions of the Registration Law. Therefore, it has been argued
that some aspects of the so-called principle of formality should be
applied. According to this, various supplementary acts are required
in addition to the mere expression of intention, will or legal acts,
for instance, a formal delivery or registration must be made to achieve
legal effect between the parties themselves. Practice as well as theory in Japan have therefore been confronted from the beginning of
the introduction of the New Civil Code with questions concerning
the validity of the two principles in Japanese Law.
The Law Courts tended principally to take a conservative attitude
where respect of the will of the parties was concerned: The Tokyo
Court of Appeal ruled in 1910, that when an obligation to transfer
a real right over a specific thing comes into existence, it has the
effect of transferring the real right immediately and without any formality being observed. One problem caused by this interpretation
of the Law was that of double-selling the same thing to different
parties; who should be recognized as owner in such a case? How
should the problem of invalidity of contract be handled?
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Jurisdiction soon became aware that article 176 could be understood only as a rule or principle, and therefore had to establish its
own rules on how to interpret this article in individual cases, which
showed the relativity of the principle of will. If, for instance, as ruled
by the Nagasaki Court of Appeal, in respect of an immovable, a
contract of repurchase had been made but not registered and the
ownership of the immovable was in the hands of a third person at
the time of repurchase, the mere expression of intention on the part
of the party having the right to repurchase did not have the effect
of transferring the ownership from the buyer to the seller. In that
case registration could only be demanded after having demanded
the transfer of ownership. Soon after this ruling the Tokyo District
Court made it clear that in the case of sale of a specific thing the
seller may retain ownership until the buyer has paid the selling price,
although “as a rule” the buyer acquires ownership simultaneously
with the formation of the agreement.
In a similar sense, Article 177 had been established as a “rule”,
when the Daishinin (Imperial Supreme Court until 1945) argued in
important decisions from 1903–1910, that Art. 177 determines the
conditions on which the acquisition etc. of a real right relating to
immovables can be opposed against third persons who have a legitimate interest in asserting the absence of the registration thereof. This
article should therefore not apply where the act is a fictitious expression
of intention and the voidness thereof can consequently be opposed
against a third person in bad faith. The fact that Art. 177 provided
that those real rights enumerated in the Registration Law cannot be
opposed against third persons unless registered did not mean that unregistered real rights cannot absolutely be opposed against any person
even if he is in bad faith. But registration itself was nevertheless held
to be essential: a person who purchases an unregistered immovable
(land or building), could not oppose the transaction against third persons unless he was registered. So if a real right over an immovable
had been separately transferred to different persons, this fact did not
affect the person registered as the person entitled.
In some cases, the determination of the third person causes problems so certain criteria had to be established by the law courts. Some
of these were that this person had to have a legitimate interest in
asserting the lack of the registration of the acquisition etc. of a real
right. A possessor without any legitimate title could therefore not be
regarded as having a lawful interest in asserting the lack of delivery
219
or registration against the person who has acquired the ownership
of the thing in question.
4. Legal separation of land and building
The reception of western law naturally lead to conflicts in legal conceptions. One of the very important sections where this conflict
became obvious was the relationship of land and things connected
with it like buildings, trees etc. The conception of western law had
been dominated by the Roman law principle ‘superficies solo cedit’,
which meant that the legal destiny of a building was connected irrevocably to that of the land it was standing on. On the other hand,
there was the Japanese tradition which seems to be taken by the
Japanese legislators for granted without thinking it to be necessary
to give any reason when following this conception in the Civil Code.
But actually there had been strong votes for adopting western law
principles also in that respect in order to get a kind of unified system.13 But this idea is not expressed anywhere in the Civil Code.
One of the main reasons is that during the process of legislation
there was already fierce opposition to this principle of unity of land
and building. Although the opponents had been a minority in the
beginning, they were strong and influential enough to uphold the
traditional principle of separate handling and to prevent a legal
definition or regulation of this question being introduced into the
law. In particular, Article 86 of the Code, providing that ‘land and
things fixed thereto are immovables’, is said to have been a concession to these opponents.14
The dispute over this question was decisively influenced by the
discussion about the regulations of hypothec15 law in December 1896,
when the extension of the effect of a hypothec and the relationship
between hypothec and statutory superficies in case of realization of
13
Especially Ume, who was responsible for the part of real right in the Civil
Code, voted for the concept of entity of land and building; see his comments on
this issue in tochi to tatemono no kankei (1906), p. 9.
14
E. Hoshino: Hògaku ronshù vol. I (1970) p. 147f.
15
There are different translations into English of the Japanese word teitò, f.i.
mortgage of land (in Britain) or on real property (US); charge by way of legal mortgage, deed of trust, security etc. The fact that there exists a specific mortgage system in Japan should, on the other hand be recognized by using a different notion,
as is also done in the English version of the Civil Code of Japan, published by
Eibun Hòreisha under authorization of the Ministry of Justice (1966).
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civil code
the hypothec had to be decided. In its first draft the effect of a
hypothec on land should apply also to a building constructed upon
it. Ume, who had written this draft, was convinced that a building
should be looked at in principle as a fixture of a piece of real property, but he admitted also different agreements of the parties; buildings constructed after a hypothec had been imposed on the land
could be brought together with the land to the auction sale. This
position was, however, criticised by those representatives of the legislative council who preferred to uphold custom, where land and
building were totally independent things (this custom derived mainly
from the way of constructing houses in Japan: related to climate etc.
houses were nearly without exception wooden constructions, not built
for eternity but to remove and rebuild quickly). The criticism was
at last successful and led to the formulation of the now applicable
Article 370: ‘A hypothec shall extend to all things, except buildings,
which appertain to or form the part of the land hypothecated.
However, this shall not apply to cases where it is otherwise provided
for by the act of creation or where the act of the obligor can be
rescinded by the obligee . . .’.16 Following this principle, other attempts
to introduce the idea of entity of land and building into the Code
could not be realized, for instance, Tomii could not in the part he
was responsible for, the General Provisions chapter III on ‘things’,
uphold his formulation, which provided a regulation similar to that
of Article 94 of the German Civil Code.
Another effect was related to the right of usufruct of immovable
property. In order to uphold the economic entity Ume suggested that
in case of realization of a hypothec on land the building should always
be part of the realization. In this respect there had also to be found
a compromise in Article 388: ‘If, where the land and the building
thereon belong to one person, either the land or the building only
has been hypothecated, the hypothecator is deemed to have created
a superficies for the benefit of the purchaser at official auction; . . .’.
Nevertheless some contradictions remained concerning the question of existence or non-existence of the principle of entity of land
and building in the Code—considering the fact, that these difficult
problems were decided in a very short period of only about three
weeks, it is not surprising that the elaboration resulted in rather
16
See Matsumoto: Teitòken to riyòken, vol. 80 (1979), p. 300f.
221
vague formulations. It was again Ume who referred to Article 242,
concerning the adjunction of immovables: The owner of an immovable acquires the ownership of anything united thereto as accessory;
however, this shall not affect the rights of another person who has
attached such thing by virtue of title.’ Together with Article 86, saying that land and things firmly affixed thereto are immovables, Ume
as well as Tomii came to the conclusion that a firm relationship
between land and building was still provided by the law.17
The above mentioned fact, that legal tradition in Japan separated
buildings from the land they were standing on, raises the question
if and to what extent there existed the idea of private property in
real estate at the time of elaboration of the Japanese Civil Code.
Different categories of ownership can be found in literature focusing on the relationship between farmers and feudal lords; property
right of Japanese farmers at the end of the 17th century were classified
as ‘virtual ownership’, whereas that of the feudal lord was merely
understood as ‘theoretical ownership’;18 others argue that private
property on land had existed in Japan since the Taika reforms in
the 7th century.19 On the other hand, leading jurists argue that a
totally free property right in real estate came into existence only
after the Meiji Restoration, when in 1872 the limitations of real
estate transactions then extant were abolished.20 The question, however, is relevant only if we are dealing with the problem of what
private property in real estate should be used for. Compared with
the development in western countries with their systems of liberal
economy and society, free disposable private property in real estate
had been mainly the object of capitalization for investment in economic development; at the beginning of the Meiji Restoration, this
connection was not yet conscious in the accepted view. It would
have taken much longer for this consciousness to become a common standard, but the separation of private property into land and
17
Tomii, p. 143; Ume, p. 11; see for more details of the discussion R. Bahr:
Das Tatemonohogoho in der höchstrichterlichen Rechtsprechung Japans (1980), p. 27f.
18
K. Asakawa: Notes on Village Government in Japan, J. of the American
Oriental Society Vol. XXX (1910), p. 264.
19
K. Nagata: Das Grundbuch und die Rollen des gewerblichen Rechtsschutzes
(1929), p. 6.
20
J. Murakami: Einführung in die Grundlagen des japanischen Rechts (1974),
pp. 42, 44.
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buildings proved to be more of an encouragement than a hindrance
to economic development in Japan, because the objects of property
could be disposed of in a much more flexible way.
5. Enactment of the Law on the Protection of Buildings
As mentioned above, one of the typical phenomena of Japanese real
rights law is the traditional view that buildings or trees (including
bamboo) can be owned separately from the ownership of the land
these things were standing on. The New Civil Code categorized this
as superficies which, though in principle a lease, was classified as
real right and as such distinguished from the mere hiring contract,
which was an obligation. But the effect of a real right depended on
registration, for which consent of the landowner was necessary. As
for principle, no one was interested in creating such a strong right
on his land unnecessarily, for the most part rental contracts were
concluded for the above mentioned purposes. This left the lessee
without any protection, as there was no provision in the Civil Code
for granting the lessee right to oppose his position against the new
owner if the land he rented was sold.
There had been, at an early stage, some attempts to treat these
problems with legislative measures. A law of 1900, for instance, entitled lessees of structures or trees etc. to get their rights registered
within one year after the enforcement of the New Code, if their
right previously existed. But these measures proved to be too shortsighted, and changes in socio-economic relationships, especially after
the war with Russia in 1904/05 and the connected needs for land,
led to a widespread abuse of the right of renting land, a phenomenon which is known as chishin baibai (earthquake selling): owners
forced the lessees to leave the land on the pretext of having sold
the land to a third person. As houses were normally built and owned
by the lessee, they had to be torn down; the resemblance to the
effects of an earthquake gave rise to the name. The legislation set
up in consequence was the so-called Buildings Protection Law (tatemono hogohò ) of 1909, which entitled those who had rented land for
the purpose to build on it a house for themselves to occupy to oppose
their right against third persons; if their building was registered, the
contract of hiring or superficies had not to be registered.
Once again the experience of the war showed the inadequacy of
the law, especially with respect to the period of hiring and the problems which could arise if buildings were destroyed. After World
223
War I the situation with land lease worsened; to give more protection
to those who did not have their own land to build a house on or to
those who wanted to rent a house, two laws were enacted on April
8, 1921 as Laws No. 49 and 50: the Land Lease Law and the House
Lease Law. The Land Lease Law provided that the protected right
of lease of land shall mean the right of superficies and the right of
lease subsistent for the purpose of owning buildings. In Article 2 a
period of sixty years was fixed for which the right of lease of land
should continue to exist in the case of leases which have for their
object the ownership of buildings made of stone, earth or bricks, or
of similar solid structure, and thirty years in the case of leases on
other buildings. If the building were to be destroyed prior to the
expiry of these periods, the right of lease of land would also be extinguished. Special measures were taken to make contract extension
available to the lessee: if he demanded renewal of the contract it
was deemed that the right of lease of land had been renewed on
the same terms as those of the former contract. Of course the owner
could raise objections, but these were accepted only if he proved
that he needed the land himself or for other justified causes. The
position of the lessee became even stronger through the provision
that if the contract was not renewed, the holder of the right of land
could demand that the buildings or other things which he had added
to the land by virtue of his right had to be purchased by the
landowner. Contrary to the owner, the lessee was not punished for
forgetfulness: if the lessee of land continued to use the land after
extinction of the right of lease and the landowner failed to raise an
objection without delay, it was deemed that the right of lease of land
had been renewed on the same terms as those of the former contract.
Together with the tatemono hogohò, which provided for the protection
of rights by abolishing the necessity for registration of the right of
lease and holding the registration of the house as sufficient, and the
competence given to the courts by the new law to alter lease terms or
to give permission in favour of the lessee in lien to the consent of
the lessor, made this regulation one of the most important pieces of
legislation to protect social status at that time.
In the same sense the House Lease Law protected the lessee of
a house: even if not registered, lease of a house could, when the
house had been landed over, thereafter be effective and oppose against
any person who acquired a real right on the house. This had, in
consequence, the same effect as an amendment of the Civil Code,
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where Article 605 provided that the lease of an immovable should
be effective even against a person who subsequently acquires real rights
upon such an immovable, only if registered. Similarly to the Land
Lease Law, the lessor of a house could not refuse renewal of the lease
or make an offer of cancellation unless he needed to use the house
himself or there existed other just causes. In case where the parties
had specified the term of the lease and one party failed to give the
other party notice within six months to one year prior to expiration
of the term, it was deemed that a lease had been renewed on the
same terms as those of the former lease.
All these stipulations, which had been necessary for a time to protect the individual rights of poorer people in order to achieve a certain degree of social justice, had, after World War II and along with
the economic growth, leading to an unprecedented rise in land prices,
a reverse effect: the lessees’ position—be it land lease or house lease—
seemed in many cases to be overprotected, because his legal position had become stronger than that of the land- or house-owner.
This lead of course to conflicts with the constitutionally guaranteed
right to property; the social aspects of the legislation had gradually
vanished into the background. This finally led to legislative reforms
in 1991, abolishing the Law on the Protection of Buildings, the Land
Law and the House Lease Law, and giving way to a unified Law
on the Lease of Land and Houses which tries—in keeping with the
basic tenets of the old laws—to find a better balance between the
interests of the lessor and the lessee.
6. Real securities
One of the most essential sections of private law related to economic
matters is the law of real securities, because it is that part of the
law which renders economic transactions calculable to a large extent
by attracting investments for further economic development. This
section of the real rights law could therefore be looked at as a precondition of Japan’s growth since the Meji Restoration. But actually
the system laid down in the New Civil Code had not been worked
out as well as other sections of the Code, because soon after its
enactment it became necessary through practical experience to establish special, separate laws which provided for real security. The Code
itself contains four types of real securities: right of retention, preferential rights, pledge and hypothec, in comparison with western laws
225
we can find especially in hypothec-law some specific phenomena dating back to the traditional view of separating private property on
real estate into categories of land, buildings etc. This view opened
the way to a much more flexible application of encumbering real
estate property and other rights with a hypothec. This flexibility
could be regarded as a factor in the economic development in Japan
that took place at the beginning of this century. To achieve this
goal, the general provisions on hypothec in the Civil Code had to
be supplemented; first of all, three laws were enacted on March 13,
1905 with the purpose of promoting economic investment: the Railway
Hypothecation Law (Law No. 53), Factory Hypothecation Law (Law
No. 54), and the Mining Hypothecation Law (Law No. 55) were all
dedicated to this purpose. Railway hypothecation was important for
the development of urbanisation; the Law enabled a local railway
company to create a railway estate in respect of the whole or a part
of the railway with the view to making it the subject of hypothec.
The railway estate was deemed to constitute a single entity, it should
come into existence when approval had been granted for the creation of a hypothec. At the same time the application area became
restricted: the railway estate could not be made the subject of real
rights other than ownership and hypothec (Article 4). So it became
merely a question of definition of what could become the object of
a hypothec. The Factory Hypothecation Law defined ‘factory’ as a
place used for the purpose of manufacturing or processing goods, a
printing or photographic business, a place used for the purpose of
supplying electricity or gas, and station broadcasting. Parallel to
Article 370 of the Civil Code the Law provided, in Article 2, that
the hypothec which the owner of a factory created on the land
belonging to the factory should, except for buildings, extend to things
which were fixed to the land so as to form one entity, and machines,
implements and other things utilized by the factory which were
installed on the land. A factory could therefore be regarded as an
economic, encumberable entity, leaving buildings to be encumbered
separately. This idea was later supplemented by the Enterprise Hypothecation Law of 1958, which made it possible for the total assets
of a limited company to be treated as a single entity, the subject of
the right of enterprise hypothecation, in order to secure debentures
issued by the company. To avoid misunderstandings, the right of enterprise hypothecation was specifically defined as real right (Article 1 II).
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The holder of the right of enterprise hypothecation was even entitled to obtain satisfaction of his obligation, in preference to other
creditors, out of the total assets currently belonging to the company.
Similarly to the Railway Hypothecation Law the Mining Hypothecation Law allowed the holder of the right to exploit a mine to create a mining estate with a view to making it the subject of a hypothec.
Subsequently there were more special hypothecation laws, enabling
the Japanese legislator to prepare a flexible legal ground to build up
the economy. Examples are the Small-gauge Railways Hypothecation
Law (1909), Fishery Estate Hypothecation Law (1925), the Farming
Movables Credit Law (1933), the Motor Vehicles Hypothecation Law
(1951) or the Aircraft Hypothecation Law (1953). The enactment of
all these specialized laws became necessary because of the increased
demand for securities on movables as well as immovables, which had
not been foreseen by the legislators of the Civil Code. Nevertheless
this development in legislation makes clear again the special conception of real rights law in Japan, especially with respect to the
conceptual separation of movables and immovables as well as of land
and ‘things firmly connected herewith’.
law of obligations
227
3.3 Law of Obligations
Ronald Frank
The book on “Obligations” (saiken) was the third part of the Civil Code
that was promulgated together with the “General Provisions” and “Real
Rights” in 1896. The subject of obligations had been one of the points
of contention during the Codification Controversy, albeit overshadowed
by the ultimately more politically significant topic of family law.
The apparent structural similarity between this book and its counterpart in the German Civil Code (BGB) has often been cited as yet
another indication that the drafters of the New Civil Code were following the German model of civil law very closely indeed. On the
other hand, it has been pointed out that this section of the code
contains a lot of provisions from the previous draft, the French influenced Old Civil Code of 1890. It is, however, not the aim of this
brief overview to prove how “German” or how “French” the Japanese
Law of Obligations is. Rather, the historical background and development of a variety of the provisions set forth in Book Three of the
Japanese Civil Code will be the focus of the following pages.
3.3.1. Obligations in Traditional Japan
The modernization of Japan in the Meiji period brought with it a
significant change in the understanding of the nature of obligations.
To be sure, a variety of contracts and other legal instruments relating
to the concept of obligations had existed in the Edo period and earlier, but the modern concept of saiken (“Obligational Rights”) was as
new as the concept of “right” (kenri ) itself. Elements of the modern
definition of “obligational right”, i.e. the right to claim performance
of a definite act by a definite person, were of course present in contracts concluded in medieval and early modern Japan. However, the
extent to which these rights were enforceable in a court of law was
a different matter.
A distinction between real and obligational rights in judicial practice can be traced back as far as the Kamakura period (1185–1333).
The courts of the first warrior government distinguished between
cases concerning real property (shomu sata) and cases concerning other
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matters (zatsumu sata). Within the latter category fell all cases dealing
with movable property, but also cases concerning the validity of documents in contracts etc. In other words, zatsumu sata were at least
partially concerned with what a modern jurist would call rights of
obligation. It should not go without notice, however, that the distinction
between the two kinds of cases was a procedural rather than a substantive one, and that real property cases were accorded greater
attention in the courts.
Muromachi period (1336–1573) legal practice continued this procedural distinction, although with the rise of warlord rule in the sixteenth century a tendency towards less systematic court proceedings
became apparent. This time period also saw the development of a
new type of exclusive property rights (chigyò ), although in practice
these “rights” amounted to an agglomeration of rights and duties,
and rights of disposal were increasingly circumscribed. Sale of mortgaged property, of land in particular, was subject to approval by the
authorities. In other words, contracts stipulating forfeiture of mortgaged
property in case of non-payment were not automatically considered
valid and, consequently, were not legally protected.
The Tokugawa regime continued much of the legal tradition of
the immediately preceding “Warring States”, and, it might be argued,
did not reach the level of procedural sophistication that Kamakura
courts had developed. Although legal protection of transactions was
thus limited, economic necessity dictated the development of a multitude of instruments of credit, mortgage, lease, and sale of property
in villages and towns. Some of these everyday legal transactions were
specifically designed to circumvent existing statutory law. Thus for
example a sale of land could be veiled as a mortgage or lease agreement of unspecified duration.
Edo period judicial practice also distinguished several categories
of cases, namely real property cases (ronsho), so-called “main” or “real”
cases (honkuji ), “money” cases (kanekuji ), and “internal affairs” (nakama
goto). Whereas ronsho could be classified as falling into the modern
category of “Real Rights”, the latter three are more akin to our
understanding of “Obligational Rights”. It is important to note that
courts accorded judicial protection in descending order, with ronsho
receiving the bulk of attention, while nakama goto were routinely thrown
out. Both “main” and “money” cases were heard, though the latter
with considerably simplified procedure. The distinction between these
two categories was the involvement of real property. “Main” cases
law of obligations
229
dealt with transactions that were secured by collateral, whereas
“money” suits dealt with unsecured transactions, mainly interest bearing loan instruments.1
Generally speaking, all of these cases were considered civil cases
insofar as it was up to the plaintiff to initiate a suit. In other words,
the enforcement of such rules as existed was left to the discretion of
the litigant. However, it should also be noted that there was no guaranteed right to demand justice from the courts of either daimyò or
shogunate, Rather, the courts granted consideration of a case as a
special grace, and since courts were staffed by warrior administrators
who received their income from land, cases of monetary disputes
between non-warriors that did not involve land were considered as
not deserving much attention.2 The distinction of several categories
of cases was thus designed to prioritize the allocation of limited judicial resources in a way most beneficial to warriors.3
As a result, contracts were not necessarily protected in Tokugawa
courts. This state of affairs raises two intriguing questions. First, was
the distinction between honkuji and kanekuji purely procedural, or does
the relative neglect of the latter by the courts imply a substantive
differentiation as well? Second, if a contract over a loan without collateral is likely to be unenforceable, what is the nature of such a contract, and of contracts in general, in the first place? While an answer to
the first question would go beyond the confines of our topic,4 some
observations about the nature of contracts in premodern Japan are
in order.
First and foremost, the contracting parties were, as a rule, not
considered equals. Consequently, it would be difficult for the “junior”
partner in such a relationship to claim performance of an act by
the “senior” partner as his “right”. Written contracts usually contained
signatures of third parties acting as witnesses. In a rural setting such
1
Since the distinction was not always readily apparent, lists of honkuji and kanekuji
were published from time to time. For an example see Dan F. Henderson “ ‘Contracts’
in Tokugawa Villages”, Journal of Japanese Studies, Vol. 1 (1974), pp. 73–75.
2
The procedural rules for money cases called for enforced conciliation in most
cases. See Dan F. Henderson, Conciliation and Japanese Law (Seattle: University of
Washington Press, 1965), pp. 106–115.
3
Carl Steenstrup pointed out the shortsightedness of such an approach in the
preceding volume of this series. See his History of Law in Japan Until 1868 (Leiden:
E.J. Brill, 1991), p. 155.
4
Henderson questions the very usefulness of the terms “procedural” and “substantial” in this context. See his “Contracts”, p. 72.
civil code
230
contracts would thus become known to a wider audience, a fact
which would make performance of the obligation more likely to
occur. Henderson consequently characterizes such contracts “as public instruments of consensual governance, rather than simply private
agreements”.5 A written contract was thus more often than not an
instrument that relied on social rather than judicial enforcement, by
itself it did not create a right to initiate a lawsuit in case of a breach.
The same holds true for contracts concluded in an urban environment. Since the vast majority of these were classified as “money
suits”, their enforceability was for the most part not directly linked
to the judicial system.
In short, the premodern Japanese legal order did not recognize a
contract as an abstract instrument creating an obligational right
enforceable through legal action. Access to courts and possibilities of
appeal were severely limited, and statutory civil law had but limited
influence on the day-to-day activities of commoners. These fundamental assumptions were to undergo a tremendous change over the
course of the Meiji period.
It is to this process that we shall now turn.
3.3.2. Obligational Rights in the Early Meiji Period
A cursory look at the legislation pertaining to obligational rights in
the early Meiji period reveals that old habits did indeed die hard.
Apparently the lack of protection of obligations by courts of law had
not yet been identified as an “evil custom of the past” that according
to the Meiji Charter Oath should have been abolished. Instead we
find a multitude of pronouncements that continue the tradition of
severely restricting legal protection for certain kinds of “money cases”
and make access to courts subject to conditions.
The early years of the Meiji period saw a tendency to classify
obligations according to criteria that can only be described as “premodern”. For one, the social status of the parties to a contract determined whether or not it received legal protection. Thus for example
an edict of the Meiji government in October 1872 stipulated that
courts would not accept legal action brought on a loan involving
5
Ibid., p. 63.
law of obligations
231
commoners, if the loan was arranged on or before the last day of
1867.6 What is of interest in this regard is not so much the fact that
this edict was designed to reduce the caseload courts had to deal
with, but that it did so on a selective basis. Non-commoners could
bring suit on older loan arrangements as well. An earlier edict had
made conciliation attempts mandatory in cases of loan agreements
involving nobility, gentry, and temples and shrines, but also provided
for the opportunity to bring action in cases of unsuccessful conciliation or hardship to the parties involved. In short, the system acted
to protect the rights of people with hereditary privilege with greater
zeal than those of commoners, thus reflecting the legal order of the
Edo period to a large extent.
Another reflection of legal thinking of the ancien regime can be found
in the differentiation of interest and non-interest bearing loans. There
was a general tendency in the courts of the Edo period to favor noninterest bearing loans over interest bearing ones, most likely this was
a reflection of traditional ethics in an agricultural society. It is remarkable that despite the commitment to modernization such attitudes
were carried over into the Meiji period. For example Ministry of
Justice Edict #41, published November 27, 1872, provided among
other things that interest bearing loans and deposits with a fee were
justiceable only if the contract had been concluded after June 25,
1869. Non-interest bearing loans were, however, exempt from this
provision.7 From the evidence of this edict and others like it, it would
appear that the government had not yet realized the necessity of
legal protection of credit instruments for the economic development
of the country.
Lastly, early Meiji period legislation regarding loans followed
Tokugawa precedent in extending protection to all loans secured by
a collateral. The Ministry of Justice Edict mentioned above contained a provision to that effect. However, hereditary stipends were
not recognized as collateral and suits involving such arrangements
were not permitted. Once again, the interest of the privileged classes
seemed to be foremost on the mind of the drafters of these edicts.
They appeared to become interested once property had actually
6
Edict #317, dated 10/22/1872. See Hosokawa Kameichi, Nihon kindai hòseishi
(Tokyo: Yùhikaku, 1961), p. 204. Since the lunar calendar was stiff in force the
cut off date is actually January 24, 1868.
7
For a list of the contents of the entire edict see Hosokawa, (note 6), pp. 206–207.
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civil code
changed hands as a result of a credit transaction. Since samurai were
more likely to be debtors and commoners to be creditors in such
transactions, making such agreements justiceable meant protecting
the rights of samurai first and foremost. By the same token, hereditary stipends (although soon to be abolished) were considered nontransferable privileges, and their use as collateral was discouraged.
In general, it appears to have been government policy to limit the
legal protection of obligations. Many were repudiated in a wholesale
fashion, while many others were effectively turned into natural obligations. The dividing line between denying the right to bring action
and denying the substantive right to collect a debt itself was at times
rather fluid and ill-defined. For example, a government edict from 1872
stipulated a five year limit on bringing a suit for non-payment, but
a year later another edict specified that only the right to sue was
affected by this limitation.8 The 1873 Statute of Limitations, however,
provided that if a suit was not brought within the time limit stipulate for a given type of transaction, the contract was deemed canceled.
The creditor thus lost the substantive right to demand performance,
rather than just the right to bring legal action.9 Eventually, the subject
of natural obligations would be treated extensively in the 1890 Old
Civil Code, only to be dropped as a concept by the drafters of the
New Civil Code.
Thus it can be said that the legal protection extended to obligations
in the early Meiji period was piecemeal at best, and woefully inadequate
at worst. The overriding concerns in the legislation pertaining to
obligations were to ease the caseload of the courts and to protect the
interests of privileged classes—hardly a recipe for modernization of
the legal system.
3.3.3. Obligations in the New Civil Code
Book Three of the new Civil Code is entitled simply “Obligations”
(saiken).10 As indicated above, this part of the code was promulgated
8
Edict #300 of 10/07/1872 and Edict #50 of 03/31/1873, respectively. See
ibid., p. 206 for the full contents of these edicts.
9
See Ishii Ryosuke, Japanese Legislation in the Meiji Era (Tokyo: Tòyò Bunko, 1958),
pp. 640–641.
10
It is possible to translate the term saiken as “Rights of Obligation” (as this author
would be inclined to do), however, the simple “obligation” is commonly accepted
in translating the title of Book Three of the code.
law of obligations
233
in 1896 together with the two preceding books on “General Provisions”
and “Real Rights”. It was drafted by Hozumi Nobushige, Tomii
Masaaki, and Ume Kenjirò who had been charged with revising the
previous French inspired draft of the civil code. In the process of the
revision, the drafters had to grapple with a number of technical issues
that been part of the codification debate. These issues concerned such
questions as the subject of obligations and the role of “natural obligations” in the code. In both instances the drafters decided against following the French school. The whole topic of natural obligations was
dropped from the new code, and the subject of an obligation can,
according to Article 399, be even a thing that can not be valued in
money.
Although the draft of the new code followed by and large the
structure of the German Civil Code, the book on obligations did so
only to a certain extent. To be sure, many provisions do have an
equivalent in Book 2 of the BGB. However, the way in which these
provisions are arranged in the code is, if anything, even more systematic than in the BGB. Thus, Book 3 of the new Civil Code starts
with a chapter on “General Provisions” (sòsoku, Arts. 399–520), followed by “Contracts” (keiyaku, Arts. 521–696), “Business Management”
( jimu kanri, Arts. 697–702), “Unjust Enrichment” ( futò ritoku, Arts.
703–708), and “Unlawful Acts” ( fuhò kòi, Arts. 709–724).
The process of compiling the provisions of the law of obligations
entailed a careful sorting and revision of the articles of the Old Civil
Code pertaining to that particular subject matter, rather than a copying of the German model. One issue in particular deserves mention.
The Japanese Civil Code did not employ in its treatment of contracts the principle of abstraction so dear to the heart of the Pandectist
authors of the BGB. In short, this principle distinguishes between
the contract of sale in which the parties bind themselves to the transfer of a right on the one hand, and the “real contract” which entails
the actual performance of the obligation. Furthermore, these two
contracts are deemed valid independently of each other.11 This theory of the “abstract legal contract” was not employed in the Japanese
Civil Code. Consequently, following the logic of Zweigert and Kötz
who see this theory as a defining factor of the Germanic family of
11
For a description of the fundamentals of this concept see Konrad Zweigert
and Hein Kötz, An Introduction to Comparative Law, Vol. 1 (Amsterdam: NorthHolland Publishing Co., 1977), pp. 178–185.
civil code
234
law, one could argue that Japanese civil law, despite all its resemblance to German law, actually belongs to the Romanistic family.
This is, however, a problem for the comparative jurist, not for the
legal historian.
In the following, we will look at the history of some of the most
important provisions in the Book on “Obligations” and their historical background.
3.3.4. General Provisions (Arts 399–520)
3.3.4.1. Subjects of Obligations
Following modern legal theory, the Japanese Civil Code defines an
obligation as a right to claim performance or omission of a definite
act from a definite person. The existence of an obligation presupposes
the existence of a debtor (saimusha) and a creditor (saikensha), as well
as a clearly defined subject of the obligation. Generally, a subject of
an obligation does not have to have monetary value (Art. 399). As
indicated above, this provision differs markedly from the corresponding
article in the Old Civil Code which recognized only things valuable
in money as subjects of obligations. Judicial practice in the early
Meiji period did show a heavy bias towards the monetary value of
the subject of a transaction, since the amount in question could
determine whether claims were justiceable in a court or not.
Article 404 of the code set the interest rate of an interest-bearing
obligation at 5 percent if nothing else was specified in the contract.
Compound interest, however, starts to accrue only after a year in
which the debtor, despite demands of the creditor made no payments. These provisions by themselves do not amount to an absolute
legal limit on interest rates. Such limits had been set in the 1877
Law on the Limitation of Interest Rates (risoku seigen hò )12 which
would remain in force until 1954. This law distinguished between
interest determined by contract (keiyakujò risoku) and interest determined by law (hòritsujò risoku). The latter was the rate deemed applicable by the court when no provision had been made in the contract,
and it was set at 6 percent annually. Limits for contract-based interest were set at 20 percent for loan amounts under 100 yen, 15 percent for loans above 100 but below 1000 yen and 12 percent for
12
Published as Edict #66 on September 11, 1877.
law of obligations
235
any sums exceeding 1000 yen. Any agreed on interest above and
beyond these limits was not claimable through legal action and had
no effect in court.13
Interest rates had been significantly reduced over the course of
the Edo period after being as high as 100 percent annually in medieval
times. In the early years after the Meiji Restoration government
edicts tended to recognize the freedom of contracting parties to determine interest rates but insisted on these rates being clearly stipulated
in the contract. If this had not been done, the courts were to assume
a rate 6 percent in accordance with a Ministry of Justice Edict from
1873. This regulation and others like it presaged the category of
“interest determined by law” in the 1877 Law described above. The
provision of the Old Civil Code was virtually identical, the new code
reduced it to 5 percent.
Compound interest was a relatively new concept. Unknown in the
Middle Ages, it had been outlawed throughout the Edo period and
all but ignored by early Meiji legislation.
3.3.4.2. Effect of Obligations
Section 2 of the General Provisions is entitled “Effects of Obligations”
(saiken no kòryoku) and contains provisions relating to delay, compensation for damages resulting from non-performance, and to effect of
obligations against third persons. According to Article 414 obligations
can be enforced by court order at the request of the creditor. The
sole criterion for defaulting on an obligation is the arrival of the
time for performance as spelled out in the contract (Art. 412). Unlike
the Old Civil Code, the New Civil Code also recognized the possibility of a creditor’s responsibility for the non-performance of an
obligation (Art. 413). There are no provisions regarding the consequences of default by the creditor. However, if the creditor is solely
or partially (Art. 418) responsible for the delay or non-performance,
the code stipulates that monetary compensation for damages can be
demanded by the debtor.
Compensation for damages figured prominently in the piecemeal
legislation of the Meiji period concerning contracts. Normally such
compensation was treated as somewhat analogous to interest. For
example, an edict issued by the Ministry of Justice in 1873 listed
13
For a summary of this law see Hosokawa (note 6), p. 209.
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civil code
several types of normally non-interest bearing obligations that could
be subject to interest after the arrival of a specified time period or
after demand of payment had been made by the creditor. However,
provisions over the accrual of interest after a specific time had to
be stipulated in the contract.14 Edo and early Meiji period contracts
apparently often provided for penalties in case of non-payment or
payment arrears. The 1877 Law on the Limitation of Interest Rates
stipulated that such penalty agreements be recognized as compensatory
damage clauses by the court, but provided for the possibility of adjustment if the judge considered the amount unreasonable. Judicial practice subsequently refused to recognize penalty clauses. Pre-arranged
damage amounts, however, continued to be recognized. The Old
Civil Code contained a provision to the effect that a court may not
change such agreements. Article 420 of the new code states the same.
According to the New Civil Code, the debtor is held liable only
for those damages that normally result from the failure to perform
the obligation. Compensation for damages stemming from specific
circumstances can only be demanded if these circumstances were
foreseen or foreseeable (Art. 416). According to Igarashi, this particular provision has its origin in English case law with which the
drafters of the code were familiar.15
Under normal circumstances an obligation is defined as a right
against a specific person and does not affect others. The New Civil
Code does, however, provide for effects of obligations against third
persons. These provisions were taken from the old code and included
the indirect right of action or action oblique (kansetsu soken) and the
right to bring revocatory action (haiki soken). The former allows the
creditor to exercise rights belonging to the debtor in order to protect his own rights (Art. 423). The latter empowers the creditor to
seek annulment of juristic acts done by the debtor that were intended
to harm the interests of the creditor (Art. 424).
3.3.4.3. Obligations with a Plurality of Parties
The section entitled “Obligations with a Plurality of Parties” (tasù tòjisha
no saiken, Arts. 427–465) deals with cases in which there is more than
one creditor or debtor. The general assumption as expressed in Article
14
Ibid., p. 208.
Kiyoshi Igarashi, Einführung in das Japanische Recht (Darmstadt; Wissenschaftliche
Buchgesellschaft, 1990), p. 89.
15
law of obligations
237
427 is that an obligation is divisible. However, all other articles in
this section are devoted to exceptions from this general rule. The
code identifies three categories of such exceptions, namely indivisible
obligations ( fukabun saiken), joint obligations (rentai saimu), and suretyships
(hoshò saimu). As the difference in the original Japanese terminology
makes clear, indivisible obligations can be any obligational rights
(saiken), regardless of whether they belong to the obligor or the obligee
(Arts. 427–430). Joint obligations, on the other hand, are only debts
(saimu), consequently there can be no joint creditorship. This particular solution differs from the provisions of both the Old Civil
Code and the German BGB were joint creditorship is provided for.
A further difference between the German and the Japanese code is
the fact that in the latter sureties are treated as an obligation with
a plurality of parties, whereas the former considers them a type of
contract. This solution was apparently influenced by the large role
suretyship had played in contracts throughout Japanese history.
Joint obligations had been commonplace in premodern Japan and
continued to be of interest to the judicial system throughout the early
Meiji period. However, there appears to have been a lot of confusion as to whether or not all debtors in a joint obligation were truly
jointly responsible for the performance of the obligation. In other
words, the nature of the joint obligation was ill defined before the
Civil Code came into force. The following examples provide an illustration of this fact.
In the Edo period, creditors had been required to bring action
against all debtors in suits pertaining to joint obligations. A directive of the Ministry of Justice to a local court from 187416 stated
that a joint obligation exists when there are several debtors and the
instrument of the loan does not specify the amount owed by each
debtor individually. If the document states the amount owed by each
individual debtor, the case shall be deemed a regular obligation. The
directive did not specify the extent to which individual debtors were
responsible for the repayment of a joint obligation. An earlier document issued as Edict #247 in 1873 and entitled “Primer for Pleas
and Responses” (sotò bunrei ) had, however, stipulated that “in case
of a loan instrument bearing the signatures of several debtors demands
for repayment must be made jointly to all debtors.”17 This particular edict was most likely reflective of Edo period judicial practice.
16
17
See Hosokawa, (note 6), p. 210.
For the original text see ibid., p. 212.
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The Grand Council of State (dajòkan) stated its opinion on the
matter in an edict issued in response to an inquiry from the Ministry
of Justice in 1875. According to this edict, payment of a joint debt
could be demanded from debtors, even if some of them had died
or disappeared, unless the specific amount owed by each debtor had
been specified in the loan document. It remained unclear whether
each debtor was individually responsible for the entire loan or whether
all remaining debtors were jointly responsible. An inquiry from a
local court to the Ministry of Justice from 1880 illustrates this fact.
It asked whether a demand for payment that was not directed to
all debtors could be directed to one debtor alone.18 Would such an
interpretation be consistent with 1875 edict of the Grand Council
of State? In response the Ministry of Justice declared that all debtors
should be held jointly responsible, although different directives had
been issued in the past. Curiously, it justified this decision with a
reference to the 1873 primer mentioned above. Evidently the treatment of joint obligations had come full circle.
The provisions on joint obligations in the Civil Code follow those
of the old code fairly closely, except with regard to the construct of
joint creditorship which the drafters dropped as a needless technical
aspect. As indicated above, joint obligations are, consequently, exclusively saimu, i.e. debts. A creditor may demand performance of a
joint obligation against either one or all debtors. In the latter case he
may do so simultaneously or successively (Art. 432). If a demand for
performance of the obligation is made against one of the debtors, this
demand takes effect also against the other debtors (Art. 434). Along with
this provision, the code distinguishes five other actions with regard to
one debtor that have an automatic effect on the other debtors, namely
novation, set-off, release, confusion, and prescription. All other matters
affecting one of the debtors have no effect on the others (Art. 440).
As mentioned previously, the inclusion of suretyship in the general
section of the law of obligations is a distinct characteristic that sets the
Japanese Civil Code apart from the German BGB. Surety had traditionally been considered an integral part of contractual relationships
and had had a long history in Japan. In essence, the presence of surety
in the instruments of the obligation was construed by the New Civil
Code to make the obligation a joint one, albeit with a differentiation
between the principal obligation (shutaru saimu) and the accessory
18
For a portion of the text see ibid. pp. 211–212.
law of obligations
239
obligation of a surety. In contrast, the BGB viewed suretyship as a
separate category of contracts.
The existence of sureties or guarantors can be traced throughout
the entire history of law in Japan. A guarantor seems to have been
commonplace in contracts governing the lease of land and buildings
and especially in matters of employment for a wage, apprenticeship
and the like. Generally speaking, the less well the parties to a contract
knew each other, the more likely was the inclusion of a guarantor
into he contract. Guarantors were thus prevalent, in contracts concluded in urban settings and in cases of geographical distance between
the contracting parties.
The line between guarantorship and joint obligation was apparently blurred in particular during the Edo period. Traditionally, the
most common type of guarantor was considered responsible for the
presence of the debtor until the obligation was performed, but was not
held personally responsible for simple default of the debtor. So called
shònin, on the other hand, were sureties in the modern sense, and
were thus responsible for the performance of the obligation regardless
of the reason for the default. This distinction all but disappeared
during the Edo period, and as a result, creditors developed the system
of joint obligations to protect their interest.19
By the early Meiji period the institution of suretyship was by and
large governed by customary law. It might be remembered that the
collection of sources on customary law was one of the important
efforts undertaken by the Ministry of Justice after 1875. The compilation “Collection of Civil Customs of the Nation” (Zenkoku minji
kanrei ruishò ) of 1879 contained a wealth of information on, among other
things, the wide variety of different customs regarding suretyship.
Although it is hard to generalize the information,20 it would appear
that by the 1870s shònin for the most part were considered witnesses
to a contract and thus not held liable for default of the debtor,
whereas ukenin were a category of guarantors that could be held
liable under certain circumstances.
Government edicts and pronouncements, however, tended to blur the
distinction between different types of guarantors, most likely in order
to simplify the judicial process and ease the caseload of the courts.
As for the liability of guarantors, the tendency early on was to rely on
19
20
Steenstrup (note 3), p. 147.
For examples see Hosokawa (note 6), 213.
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the terms of the contract. Guarantors were thus held liable only if
the contract contained a clause expressly stipulating their liability. An
example of both these tendencies is an edict published by the Ministry
of Justice in 1873. According to this edict, in cases where the contract
stipulated that the guarantor (shònin or ukenin) was responsible for
payment in case of default of the debtor, the creditor could recover
from the guarantor what he could not collect from the debtor. The
same was true if the debtor absconded or died without an heir.
Shònin and ukenin were exempt from liability if the contract did not
explicitly state their responsibility. The edict stipulated further that
the liability incurred by a guarantor pursuant to a contract passed
to his heirs upon his death. An illustration of the ad hoc nature of
legislative efforts in early Meiji Japan is the fact that almost exactly
two years later, in June of 1875, the government issued “Regulations
for the Repayment of Loans by a Surety” (Kinsen taishaku ukenin shònin
bensai kisoku). This document abrogated the provisions of the earlier
edict and stipulated that a surety (shònin or ukenin) was responsible
for the repayment of debts in case of the debtor’s default regardless
of the presence or absence of any clause to that effect in the contract.
Both the new and the old Civil Code held the surety responsible
for the performance of the obligation. This responsibility is not
affected by the reason for the default of the principal debtor. The
obligation of the surety is accessory to the main obligation, i.e. it
my not be greater than the obligation of the main debtor (Art. 449).
Needless to say, the surety’s obligation towards the creditor is subsidiary to that of the main debtor, it becomes effective only upon
his failure to perform. Consequently, the creditor may not demand
performance of the surety’s obligation without having first demanded
the same from the principal debtor, unless the principal debtor is
bankrupt or missing (Art. 452). The code does provide for an exception
to the principle of subsidiary and accessory obligation of a surety in
Article 449 which presumes that a surety who knows of a ground
for avoidance of the main obligation at the time of the conclusion of
the contract of suretyship has entered into an independent obligation
with the creditor. Of course a surety must have full capacity in order
to act as surety. The institute of the joint suretyship is a hybrid of
joint obligation and suretyship. The surety in this case is jointly liable
for the performance of the obligation, yet his obligation is at the same
time considered accessory. In any event, the surety is entitled to
compensation from the principal debtor subsequent to his performance
and under certain circumstances, even before the performance.
law of obligations
241
Overall the code’s provisions on suretyship were influenced by
those of the Old Civil Code as well as by those of the German
BGB. It should, however, be remembered that suretyship is among
the oldest legal institutions in Japan. Thus, this particular section of
the code was not only reflecting Western legal thought, but to a certain extent established customary practice as well.
3.3.4.4. Assignment of Obligations
Obligations are in principle considered transferable, subject to certain conditions specified in Articles 466–473 in the Civil Code. For
the most part, the rules for the assignment of an obligation (saiken
no yuzuriwatashi ) in the new code are derived from the Old Civil
Code. In contrast to the German BGB, the Japanese Civil Code does
not provide for the assignment of debt (saimu), only for the assignment
of the obligational right (saiken). However, judicial practice in Japan
does recognize the validity an assignment of debt.21 The code distinguishes between obligations performable to a specified creditor (shimei
saiken), obligations performable to order (sashizu saiken), and obligations
performable to bearer (mukimei saiken) and specifies rules governing the
assignment of these obligations. Any obligation is assignable as long
as its nature permits and if there is no agreement of the parties to
the contrary (Art. 466). Assignment of an obligation need not be in
a specific form, but a dated instrument is required in order to set
up the assignment against third parties (Art. 467). In judicial practice the date of receipt of a notification of assignment by the debtor
is often considered more important than the date inscribed of the
instrument of assignment.22 Assignment of an obligation to order
requires an endorsement (uragaki ) in order to be set up against the
debtor (Art. 469).
The unrestricted assignment of obligations was adopted as a general
principle in the early Meiji period. As in the Edo period, a transfer
of the instrument, often but not necessarily with an endorsement, was
sufficient to make the assignment valid. The consent of the debtor
was not required. An edict issued by the Grand Council of State in
187623 stated that if the creditor transferred an instrument of an
21
22
23
Igarashi (note 45), p. 94.
Ibid.
Edict #99 of July 6, 1876. See Hosokawa (note 6), p. 217.
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obligation to a third person, he was required to re-write the instrument
accordingly and furnish a copy to the debtor, otherwise the transfer was
considered invalid. This rule exemplifies the fact that the assignment
of an obligation continued to be construed first and foremost as a
transfer of the instrument of the obligation. It could be argued that
this edict restricted the freedom of assignment of obligations to a
larger extent than the Civil Code would do later on. This is true
insofar as the failure to re-write the contract appeared to extinguish
the substantive right of the assignee to collect the debt, whereas
Article 467 of the Civil Code states that failure of notification means
that the assignment cannot be set up against the debtor or others.
In other words, it is the right to sue that is compromised, not the
substantive right itself. On a more practical level, re-writing the entire
loan instrument was an infinitely more cumbersome process than
simply furnishing a notice of transfer to the debtor. Nevertheless, it
is possible to view the 1876 edict as something of an antecedent to
the provisions of the Civil Code concerning the assignment of an
obligation. On the other hand, the edict of 1876 is more reminiscent of the institution of novation (kòkai, see below), insofar as it can
be said to extinguish one obligation by substituting it with another.
3.3.4.5. Extinction of Obligations
The topic of “Extinction of Obligations” (saiken no shòmetsu) is treated
in the Civil Code in greater detail than in the German BGB. On
the other hand this section was considerably simplified in comparison to the corresponding provisions of the Old Civil Code. According
to the new code, an obligation can be extinguished by performance
(bensai, Arts. 474–504), set-off (sòsatsu, Arts. 505–512), novation (kòkai,
Arts. 513–518), release (menjo, Art. 519), and confusion (kondò, Art.
520). The Old Civil Code also mentioned impossibility of performance, rescission, revocation, and completion of prescription in the
section on the extinction of obligations. The new code preserved
these categories, but in the interest of logical cohesion the provisions
on prescription were moved to the chapter on juristic acts in the
Book of General Provisions, while the others were treated in the
general section of the law of contracts (see below).
Needless to say, performance is the most common and obvious
way to extinguish an obligation; therefore the bulk of this section
deals with different aspects of performance. Generally, a third person
is entitled to perform on an obligation (Art. 474). Articles 500–503
law of obligations
243
stipulate that a third person with a legitimate interest in the performance who has made such performance is subrogated into the
position of the creditor. Thus for example a surety can exercise the
rights the original creditor had against the debtor. This construct is
know as “legal subrogation” (hòtei dai’i ). Performance by an incapacitated person is voided, but there is no right of recovery of delivered
items (Art. 476). If a debtor makes payment in good faith to somebody claiming to be the creditor (so-called “quasi-possessor of an
obligation”, or saiken no junsen yùsha) or to the bearer of a receipt,
the obligation is considered extinguished (Arts. 478, 480). Article 482
provides for the possibility of substitute performance (daibutsu bensai ),
i.e. the delivery of something else in lieu of the original subject of
the obligation. This would require the consent of the creditor.
Substitute performance had had a long tradition in Japan, although
such a solution was as a rule left to the discretion of the parties.
If a creditor refuses to accept performance, the obligation can nevertheless be extinguished by depositing either the thing that is the subject of the obligation or by depositing the proceeds of the sale of
that thing at auction (Arts. 494, 497). Deposit (kyòtaku) did play a
very important role in the legislative efforts of the Meiji government
before the enactment of the Civil Code. A specific Law of Deposit
(kyòtakuhò ) had been first enacted by Imperial decree in 1892 and
was modified in 1899. Furthermore, the Ministry of Finance had
also issued rules governing the handling of deposits.
The construct of set-off provides for the extinction of mutual obligations. When two parties are indebted to each other, their obligations
cancel each other. The rules provided for such cases in the New
Civil Code are virtually identical to those of the German BGB and
deal mostly with conditions for and restrictions on set-offs. A declaration
of intention is sufficient to initiate a set-off (Art. 506). Obligations
resulting from an unlawful act cannot be set off (Art. 509), neither
can obligations that are legally protected from seizure, e.g. wages,
salaries, pensions etc. Set-offs had been employed in practice since
premodern times,24 but they had never figured prominently in statutory
law, being considered a category of conciliation. The provisions of
the Civil Code on set-offs were consequently reflective of traditional
practice in spirit, while at the same time providing a modern statutory framework for them.
24
The term employed was sashi-hiki kanjò, or “balance calculation”.
civil code
244
A novation (kòkai ) is in essence a contract that establishes a new
obligation in order to extinguish an existing one. It is thus different
from a simple assignment of an obligation, since the latter is a continuation of the same obligation, albeit with a new creditor, whereas
a novation creates a new one. The provisions on novation in the
New Civil Code were essentially taken from the disputed old code. A
novation is defined as a change in the instrument of the obligation
that changes the essential elements of the obligation, e.g. the inclusion
or removal of a condition (Art. 513). Although, as indicated earlier,
the code does not provide for assignment of debts, a change of debtor
can be construed as a novation (Art. 514).
Edict #99 of the Grand Council of State of 1876 (see above),
although dealing with the problem of assignment of obligation, essentially made any such assignment a novation by requiring the creditor
to re-write the loan instrument and furnishing the debtor with a copy.
Since failure to do so invalidated the transfer, a valid transfer thus
theoretically extinguished an old obligation and created a new one.
Article 519 of the Civil Code makes the declaration of intention
by the creditor a sufficient cause for the remission (menjo) of an obligation. It is in essence a simplified version of the corresponding article in the BGB. Should creditor and debtor happen to be the same
person, an obligation ceases to exist by reason of confusion (kondò ),
except when the rights of third persons are affected (Art. 520). Needless
to say, since both of these provisions are rooted in common sense,
they had not been reflected in legislative efforts prior to the drafting of the civil code.
3.3.5. Contracts (Arts. 521–696)
Chapter 2 of the Book on Obligations is simply entitled “Contracts”
(keiyaku) and recognizes thirteen varieties of contractual relationships.
The organizational principle is somewhat reminiscent of that of the
German BGB, however, the content of the provisions is frequently
influenced by the code civil and by Japanese customary law.
3.3.5.1. General Provisions
The new Civil Code gathered the provisions dealing with the formation,
effect and rescission of contracts that had been placed in various
parts of the Old Civil Code into a section entitled “General Provisions”
law of obligations
245
that opens Chapter 2 of the Law of Obligations. Although the structure of this chapter is somewhat different from that of the BGB, it
can be said that this part of the Japanese Civil Code follows by and
large the pandectist structural logic of the German code. Many of
the provisions themselves, however, have been adopted or adapted
from the Old Civil Code, some with significant changes. Most importantly, as indicated earlier, the Japanese Civil Code did not adopt
the theory of the abstract legal contract that can be considered a
hallmark of the Germanic legal family.
The role of contracts in modern Japan has been the focal point
of a number of sociological studies. It should be noted that, even in
modern Japan, a contract was viewed as providing a certain standard
of conduct in a transaction rather than as a tool of enforcement of
private rights. Many an observer has therefore drawn the conclusion
that the Japanese legal consciousness is not “contract-centered”. Most
often the discrepancy between the statutory law and its use and
application is cited as an example.
Some of the most important characteristics of contracts in traditional
Japan have been described earlier and need not be repeated here.
Suffice it to say that the fundamental principles of freedom of contract
and equality of the contracting parties before the law were imported
from the West into a society where, in the words of John Haley,
“Neo-Confucian imperatives of loyalty and filial piety precluded any
conception of a litigant’s assertion of a claim as a legal right to be
enforced by a neutral arbiter.”25 However, this author would like to
take exception to the notion that the nature of modem contract was
insufficiently understood in Japan. Rather, it would appear that the
Japanese saw, and to a certain extent continue to see a contract as
more than just an expression of will by two or more parties that is
intended to produce an effect under private law.
With regard to the fundamental principle of the freedom of contract,
the most important piece of pre-Civil Code legislation is without doubt
the “Rules for the Interpretation of Contracts” (Keiyakusho kaishaku
kokoroe) of 1877. In this document the Ministry of Justice stressed the
necessity to interpret a contract according to the intention of the
parties to the extent that this was possible.26 However, as early as
25
John Owen Haley, Authority Without Power: Law and the Japanese Paradox (New
York: Oxford University Press, 1991), p. 82.
26
A summary of the provisions of this document in Japanese can be found in
Hosokawa (note 6), p. 174, an English version is in Ishii (note 9), pp. 611–612.
246
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1872 a government edict stipulated that servants, wage laborers and
the like should be free to enter contracts of employment and to leave
such relationships.27 It was this particular kind of contract, namely
the contract of employment that had traditionally implied the greatest degree of inequality of the contracting parties and had severely
circumscribed the freedom of action of the “junior partner” in such
a deal. Over the course of the Meiji period, courts were increasingly
likely to reinforce the provision of contracts and to stress the principle
that judicial action should as a matter of principle try to avoid overriding term of contracts brought before the courts.
In the New Civil Code the provisions governing contracts in general are arranged in subsections dealing with the “Formation of
Contracts” (keiyaku no seiritsu, Arts. 521–532), “Effect of Contracts”
(keiyaku no kòryoku, Arts. 533–539), and “Rescission of Contracts”
(keiyaku no kaijò, Arts. 540–548). For a contract to come into being
it is necessary that an offer be made by one party and be accepted
by the other. Perhaps the most intriguing provision with regard to
the formation of contracts is provided in Article 526. It states that
a contract between persons at a distance (kakuchisha) comes into existence with the dispatch, rather than the receipt of the acceptance
notice. In contrast, according to Article 97, a declaration of intention inter absentes is considered valid upon receipt by the other party.
This peculiarity has been interpreted as a compromise solution arising out of a dispute between the drafters,28 but it clearly reflects the
provision of Anglo-American contract law as well.
The subsection dealing with the effect of a contract distinguishes
between bilateral contracts (sòmu keiyaku) and contracts made for the
benefit of a third person (daisansha no tame ni suru keiyaku). A bilateral
contract is most commonly an agreement over the exchange of one
thing for another; in other words it creates two obligations that are
mutually dependent on each other. According to Article 533 each
party of such a contract may refuse performance until the other one
tenders performance of his own obligation. If a transfer of a real
right in a specific thing (tokutei butsu, cf. Art. 401) is involved, the
code follows Roman law tradition by assigning responsibility for risk
of damage (kison) or loss (messhitsu) to the creditor (Art. 534). Of
27
28
The text of this edict can be found in Hosokawa (note 9), p. 218.
See Ishii (note 9), pp. 612, 646.
law of obligations
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course this does not apply when the debtor is clearly at fault. In
other cases, i.e. where no transfer of real rights is intended, the loss
falls on the debtor if neither party is at fault (Art. 536). These provisions followed the example set by the Old Civil Code, except that
the new code did not recognize a partial right of the debtor in the
thing even if he had already partially fulfilled his obligation. In cases
of contracts benefiting a third person, the right of this person comes
into existence with his expression of intention to take advantage of
the contract (Art. 537). This right cannot subsequently be modified
or extinguished by the original parties to the contract (Art. 538).
Rescission of a contract is generally possible either based on specific
provisions in the contract or due to non-performance or impossibility
of performance of the obligation in question (Art. 540). The code is
of course only concerned with the latter of the two possibilities, since
rescission by virtue of contract is by definition beyond the purview
of the legislator. The reason for the rescission has no impact on its
effect. Generally speaking, the New Civil Code gave considerably
greater leeway to the parties than the Old Civil Code. Whereas the
old code considered a contract rescinded when all the conditions for
rescission had been met or when the court effected such a rescission,
the new code considered a simple declaration of intention sufficient
(Art. 540). Furthermore, the old code had relegated to the courts
the right to set a grace period during which performance could be
demanded from a defaulting party. Article 541 of the new code left
this matter to the discretion of the injured party as well. Rescission
would then occur if the party at fault had not performed within the
time period set by the other party. Rescission of a contract normally
leads to the restoration of conditions as they existed before the contract was concluded. However, the question is who is responsible for
restoring the original conditions? The Old Civil Code had stipulated
that this was the responsibility of the parties themselves, each party
was supposed to restore itself to the original position. In other words,
if a contract of sale was rescinded for non-payment the injured party
would have to take steps to claim the return of the item, the debtor
was in no way obliged to initiate the return. According to the new
code, the parties were required to restore each other to their former
position (Art. 545). Overall it can be said that the new code managed to protect the interests of contracting parties better than the
old code had done, while at the same time providing maximum discretion and contract autonomy.
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3.3.5.2. Gifts
A gift (zòyo) as defined by the Civil Code is a gratuitous contract
(mushò keiyaku), i.e. a contract concluded to the exclusive benefit of one
party. According to Article 549 a gift takes effect with the expression
of intention by the donor (zòyosha) and the acceptance by the donee
( juzòsha). The code regulates only gifts during lifetime, gifts that are
to take effect upon the death of the donor are considered legacies
and are dealt with in the law on succession. The code provides for
the revocation of gifts by either party, with the exception of completed parts of the performance and of gifts in writing (Art. 550).
Although gifts played a tremendous social role in traditional Japan
(and continue to do so today), it should be emphasized that from a
legal point of view most of these customary gifts do not represent
zòyo in the sense of the civil law. Since in practice many such gifts
require return gifts, are subject to conditions, or are given in expectation of a return benefit, they are not truly gratuitous.
Needless to say, gifts were not the subject of any legislative efforts
either in traditional Japan or in the early Meiji period. The Old
Civil Code included provisions on gifts in the section on acquisition
of property. According to these provisions, a notary instrument was
needed to make a gift effective under law. The new code did away
with this particular requirement.
3.3.5.3. Sale
The Civil Code defines the sale (baibai ) as a contract by which a seller
(urinushi ) transfers a property right to a buyer (kainushi ) in return for
a certain sum of money (Art. 556). The section of the code dealing
with rules regarding sales is subdivided into subsections dealing with
general provisions (Arts. 556–559), the effect of a sale (Arts. 560–578),
and repurchase (kaimodoshi, Arts. 579–585).
Generally speaking, the code allowed the transfer of any property
right to another person in return for money, and in practice many
rights that are not purely property rights are transferred in this fashion. In traditional Japan, the rights of disposal of property had been
circumscribed, especially with regard to landed property. Since land
constituted the tax base, the government was naturally reluctant to
sanction the transfer of rights over land from one person to the
other. In addition, property rights often overlapped or were not
clearly defined, such as for example the rights a peasant might have
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over land registered in his name. The sale of arable land was in
principle forbidden, but this prohibition covered only so-called “permanent sales” (eidai baibai ). Sales for a limited time period (nenki uri )
were legal, in effect such a “sale” was a mortgage or a loan with
collateral. However, if the seller failed to redeem the property with
in the time period stipulated in the contract the property right passed
to the buyer and the sale was for all intents and purposes permanent. The Meiji government did away with the restrictions on sale
of land in 1872, but contracts over conditional sales of both land
and other, movable, property continued to be concluded. For the
most part the conditions concerned time periods for re-purchase as
determined by local customary law. Overall it can be said that many
of the elements of modern sales contracts had been developed in
traditional Japan, and consequently the provisions of the Civil Code
reflected customary law to a considerable extent.
According to Article 556, an agreement between the parties was
sufficient to effect a sale. No specific form was required for a contract of sale to become effective. Local customary law had placed
certain restrictions on the contracting parties especially regarding the
sale of immovables. Many of these provisions can be found in the
compilation “Collection of Civil Customs of the Nation” (Zenkoku
minji kanrei ruishò ) of 1879. For example, some towns required that
an official seal be affixed to a sales contract in order for the property
right to be transferred. The cost of the official seal was often tied
to the agreed upon purchase price.29 It was, therefore, required to
state the purchase price in the contract. The Meiji government also
issued edicts specifying the form of sales contracts, although this was
most likely done in order to simplify court proceedings. However,
from 1875 onward parties were generally allowed to draw up a contract in whatever form suited their needs.
Article 557 reflects traditional customary law in stating that a seller
is required to refund to the buyer twice the amount of earnest money
in order to rescind the contract, “Earnest money” (tetsukekin) had
been commonplace in traditional Japan. In case a previously agreed
upon contract was rescinded by the buyer, any earnest money paid to
the seller was forfeited. Conversely, if the seller rescinded the contract,
he was required to refund twice the amount of the earnest money to
the seller. Thus earnest money was used as an insurance against breach
29
For more examples see Hosokawa (note 6), p. 220.
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of contract. It also functioned as a deposit towards the purchase
price and was thus taken into consideration when payment was made.
The effects of a sale as covered in the New Civil Code are basically
the seller’s obligation of warranty and the buyer’s obligation to pay
the purchase price. The bulk of the provisions related to warranty
deal with the concept of “warranty against eviction” (tsuidatsu tanpo,
Arts. 560–564, 567), while only Articles 565 and 570 deal with warranty against defects (kashi tanpo). Both forms of warranty had been
known in pre-modern Japan, although a warranty against eviction
was, due to the convoluted nature of property rights, not as important as it would become in modern times. A warranty against eviction is by definition the responsibility born by the seller to transfer
a sound title to the purchaser, a title that is unencumbered by the
rights of other persons on the same thing. Needless to say, such a
state of affairs was difficult to achieve especially in the case of a sale
of land in traditional Japan. The Civil Code required that the seller
acquire the right of another person if that right was made the subject of a sale (Art. 560), while the old code had not recognized such
a concept. The rest of the provisions of the new code dealt with situations in which the contract could be rescinded due to the failure
of the seller to furnish a clean title.
The basic provision stating that the buyer was entitled to demand
damages or to rescind the contracts if the thing bought turned out
to be defective (Arts. 566, 570) was taken from the Old Civil Code.
It should be noted that the buyer was entitled to rescind the contract
only if the defect was severe enough to prevent the buyer to realize
the aim of the contract. Customary law dealing with the issue of defects
and damages was varying widely from place to place. In some regions
the seller was in principle held responsible for defects of the thing.
If defects in quality or quantity became apparent only after the delivery, the buyer was assumed to have behaved negligently. Good faith
was the determining factor if the buyer demanded a refund; if the
seller was unaware of the defect the buyer was left to bear the loss.30
Rights of repurchase, covered in special subsection in the Law of
Contracts also had a long tradition in Japan. Since many sales, especially sales of immovables had by necessity been conditional sales,
they included a clause on the “return of the original thing” (honmotsu
gaeshi ). Although this was especially important in cases when arable
30
For examples of such provisions from local customary law see ibid., p. 221.
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land had been the subject of the sale, in principle movable property
could be redeemed as well. In cases of conditional sales, it was not
always clear when the real right over the things was actually transferred
from one party to the other. If customary law provided for a relatively
simple process of repurchase, e.g. by refunding the purchase price and
possibly an amount of money exceeding the original purchase price,
the real right was apparently transferred only upon completion of
the time limit set for repurchase in the original contract. Time limits
set for repurchase were of course much shorter in case of movables,
normally a number of days, than in case of immovables. In the latter
event, limits of five to ten years seem to have been common.
Two examples from the “Collection of Civil Customs of the Nation”
may illustrate the wide variety of customary law governing the repurchase of arable land.31 In Izumo province (present day Shimane prefecture) the redemption of a piece of land sold for a specific time was
possible, if such a clause with a time frame was written into the
contract. If the seller failed to redeem within the given time frame, the
land in question became the buyer’s property. During the period set
for redemption the taxes were the responsibility of the seller. The buyer
did have a right to interest. It is clear that in this case the real right
in the land was not transferred to the buyer until the period for
redemption was over. In fact, the land might not actually have changed
hands in practice, thus making this arrangement more akin to a
mortgage than a sale.
In contrast, custom in Kaga province (present day Ishikawa prefecture) stipulated that if arable land had been sold for time period
of 5 to 10 years and funds were available at the maturity date, the
seller could redeem the land by handing over the original payment.
Moreover, interest was not required since the buyer had had the
use of the land and the benefits from the harvest.
This particular solution is strikingly similar to the one provided for
in Article 579 of the Civil Code. Here too the interest on the purchase
money and the fruits of the land are considered to cancel each other.
The code also set maximum time limits for repurchase, ten years in
cases were there was a clause in the contract, and five years where
there was none (Art. 580). The ten year limit seems to have been
more in agreement with existing custom than the shorter five year
31
See ibid., pp. 223–224.
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period provided for in the Old Civil Code. It should also not go
without mention that the new code restricted rights of repurchase
to immovables only (Art. 579), thus leaving similar arrangements for
movable property to the discretion of the contracting parties.
3.3.5.4. Exchange
In a slight variation from the structure of the German BGB the Japanese
Civil Code assigns a separate section to the issue of “Exchange”
(kòkan). Having stated earlier (Art. 559) that the provisions on sales apply
correspondingly to other contracts with consideration, the drafters
simply stated in the one article dealing with exchange (Art. 586) that
the essence of an exchange is the transfer of property rights other
than the ownership of a sum of money.
3.3.5.5. Loans for Consumption
Loans (taishaku) are treated in the Japanese Law of Obligation in
three different categories, namely loans for consumption (shòhi taishaku,
Arts. 587–592), loans for use (shiyò taishaku, Arts. 593–600), and hiring
of things (chin taishaku, Arts. 601–622). Loans for consumption are loans
of things of which the borrower can dispose at will. The borrower
is obligated to return a thing or things of the same class, quality and
quantity, having consumed what was originally borrowed. Such loans
can be for money or perishables, with or without interest. According
to Article 587 of the Civil Code, a loan for consumption takes effect
upon receipt of the item or items in question and should thus be
considered a real contract. The code does not make any provisions
in this section for interest; the provisions of Article 404 in the chapter on General Provisions apply. Nevertheless it has become necessary
to protect the interests of the borrower by special legislative acts,
such as for example the Law on Limits of Interest of 1954.
As has been described earlier, in the Edo period, all loans had been
classified as either “main cases” (honkuji ) or “money cases” (kanekuji ).
The existence of collateral made a loan subject to “main case” procedure, while interest bearing loans were classified as “money cases”.
This procedural distinction and the concomitant bias against commercial transaction were carried over into the early Meiji period.32
32
For a more detailed description, see sections 3.3.1. and 3.3.2, above.
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3.3.5.6. Loans for Use
This category of loans is distinguished from the preceding one by
the fact that the borrower is required to return the specific thing
borrowed to the lender upon completion of the term agreed upon
(Art. 597). The loan becomes effective upon the delivery of the thing
in question (Art. 593). The borrower is entitled to the profits received
from the use of the thing (Art. 594) and responsible for expenses
arising from the use (Art. 595). Loans for use are not inheritable
(Art. 599).
3.3.5.7. Hiring of Things
Article 601 of the Civil Code defines the Hiring of Things as an
agreement between two parties over the use of a thing without the
transfer of real rights in the thing. The hirer (chinshakunin) agrees to
pay rent to the lessor (chintainin) in return for the use of the thing and
the taking of the profits from this use. The provisions of the code
apply to the hiring of land, buildings, and movables alike, however,
in judicial as in everyday life practice the hiring of immovables is
vastly more significant. In the Meiji period, the problem of tenancy
on arable land was one of the most pressing social issues, whereas
in postwar Japan real estate speculation and apartment rents became
the center of attention of legislators. The significance of this section
of the code lies in the fact that the rules provided here are fundamental
to these important social and economic problems.
The historical development of the land and building leases has
been discussed in an earlier chapter and shall not be repeated here.33
However, an issue of interest from the point of view of comparative
law deserves mention. According to Article 605 a registered hiring of
an immovable takes effect even against a third person who has required
real rights subsequent to the registration. This represents an exception
to the general rule that placed the hiring of things in the category
of obligations. As an obligation, a hiring would normally only have
an effect on the parties directly involved, but not against third persons.
This provision thus protects the rights of a tenant (hirer) in case the
owner (lessor) of the property sells it to a third person.
In contrast, the Old Civil Code considered the hiring of things
a real right that by its very nature could be set up against third
33
See chapter 3.2.
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persons. The new code, however, following the example of the BGB,
transformed the hiring of things into an obligation. It can be argued that
this move also brought modern statutory law more into accord with
traditional custom. Tenancy of arable land, for example had always
been a curious admixture of rights and obligations, a fact that made
its modern classification as an obligation seem more logical than its
designation as a real right.
3.3.5.8. Hiring of Services
The Hiring of Services is termed “koyò ” in the Civil Code and general
provisions for this type of contract are provided in Articles 623–631.
A contract for the hiring of service takes effect when one party agrees
to perform services and the other party agrees to pay remuneration
for these services.
It is this type of contract that in traditional Japan saw the most
pronounced inequality of the parties involved. In the Edo and early
Meiji periods the word used for hiring of services was “hòkò ”, a term
that originally denoted the service a vassal renders to his lord.
Relationships of employment and apprenticeship thus frequently had
characteristics of indentured service, if not outright slavery. Terms
of service were not limited, and many people, prostitutes in particular,
might find themselves bound to an employer for life. Penal law provided for harsher punishments for crimes committed by employees
against their employers than in the opposite case. This state of affairs
continued into the early Meiji period and is reflected in the first major
piece of legislation issued by the Meiji government in 1870, the “Outline
for a New Criminal Law” (shinritsu kòryò ). This law provided for punishments for absconding servants and apprentices.34 An order of the
Grand Council of State from 1871 mandated that employers obtain
personal references for servants from character witnesses.35 This edict
did not introduce anything new, however, it just reinforced existing
customary practice. However, a year later, in 1872, the government
made the first major step towards introducing the principle of freedom
of contract into labor relations, by issuing the famous “Emancipation
Order for Prostitutes” ( geishògi no kaihòrei ) as Edict #295.36 This edict
prohibited the sale of humans into lifetime or shorter time servitude,
claiming that such practice was contrary to human morality. Despite
34
35
36
It remained in force until 1882.
For a summary of its provisions see Hosokawa (note 6), pp. 3, 229.
law of obligations
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its title, the edict applied to all relationships of employment. It set
the time limit on apprenticeships for 7 years and for normal industrial labor for 1 year. However, the parties could agree to extend
those limits. The edict did not deal with the issue of guarantors and
character witnesses, though existing custom provided for a significant
role of sureties in the creation of a relationship of employment.
Apprenticeship continued to be considered separately from regular
employment in the Old Civil Code. The new code simply treated
apprenticeship as a type of employment. Interestingly enough, Article
626 of the New Civil Code recognizes the validity of a contract for
lifetime employment in principle. However, each party is free to
rescind such a contract after five years with a three-month advance
notice. Furthermore, contracts are automatically considered extended
if services continue to be performed after the time limit of the contract has been reached (Art. 629).
It should be noted that many of the provisions of the Civil Code
regarding the hiring of services have become obsolete due to the
introduction of new labor legislation especially during the American
Occupation. These developments will be described in detail in the
chapter on Labor Law below.
3.3.5.9. Contract Work
The New Civil Code defined the contract of work as a contract
between a party ordering work (chùmonsha) and a party agreeing to
perform the work (ukeoinin) for remuneration (Art. 632). The Old Civil
Code made a distinction between the case of the contractor supplying
the material and the ordering party supplying such material. The
former was construed as a sale subject to a condition (the completion
of the work) while the latter was a contract for work. In the new
code such a distinction was not made. The difference between this
type of contract and the hiring of services is that the object here is
the result of the labor, while in the hiring of services it is the labor
itself. Consequently, remuneration is conditional not on the amount
of time spent in completion of the work but upon the delivery of
the result (Art. 633). The employer has the right to rescind the contract prior to completion by paying compensation for damages (Art.
641), while the contractor is liable for defects (Art. 638). Generally
the provisions for contract work in the new code differ only slightly
from those of the old one, with the exception of the question of
material supplies as mentioned above. The Meiji government does
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civil code
not appear to have dealt with the issue of contract work in edicts
or directives prior to the promulgation of the first civil code draft.
3.3.5.10. Mandate
The provisions concerning mandates (i’nin) in the New Civil Code
follow those of the German BGB very closely. The most notable
exception is that in Article 643 which defines a mandate as a contract
between one party who commissions the other to perform a juristic
act (“mandator”, i’ninsha) and the other party who agrees to do so
(“mandatory”, juninsha) no mention is made that this service shall be
provided without remuneration. In fact a reward for the services may
be paid, but according to Article 648 remuneration must be agreed
upon in a separate contract. The code furthermore provides that the
subject of a mandate need not be the execution of a juristic act (Art.
656). The provisions of the code deal for the most part with the
duties of mandator and mandatory, especially with regard to the
responsibility for expenses and other monetary matter.
As an antecedent in customary law to the mandatory the intermediary or go-between should be mentioned. A go-between was frequently utilized to initiate a relationship between parties who might
later on enter into a contractual relationship. An intermediary was
required in traditional law to bring a lawsuit. Since the Meiji
Restoration judicial procedure no longer required the services of an
intermediary, consequently the government did not deal with this
institution in particular edicts or guidelines. On the other hand, the
role of go-betweens in such matters as arranged marriages was not
normally the subject of judicial attention.
3.3.5.11. Deposit
According to Article 657, a contract of deposit (kitaku) takes effect when
one party (the depositary, jukisha) receives a thing from the other party
(the depositor, kitakusha) and agrees to keep it in his custody. The
rules for deposits in the New Civil code make no distinction between
different categories of objects of deposits, the same rule applied to
movables and immovables, things with a clear title and things under
dispute. The depositary is responsible for the safekeeping of the
deposit (Art. 659) and for notifying the depositor of any claims in
regard to the thing deposited (Art. 660). The depositor is responsible
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for the compensation of damages arising from the nature or from
defects of the deposited thing (Art. 661). Overall the provisions of
the New Civil Code follow the spirit if not the letter of the BGB.
In the Edo period deposits had been known and had been classified
as “main cases” due to the absence of interest. Early Meiji period
legislation severely restricted the admission to the courts of disputes
arising from deposits. For example after 1877, no cases involving
deposits contracted before 1857 were to be heard.37 The “Outline
of the New Criminal Law” of 1870 provided for criminal liability
of the depositary in cases where he was at fault.
3.3.5.12. Associations
Since the topic of associations or partnerships (kumiai ) will be covered in greater detail in a later chapter,38 this section will be limited
to a very brief characteristic of the role of associations in the New Civil
Code. The code defines associations as the result of a contract in
which parties agree to make a contribution and to carry out a common undertaking (Art. 667). The definition is thus broader than the
one found in the Old Civil Code, which required that associations
have profit as their objective. An association or partnership does not
acquire the status of a juridical person, i.e. it does not by itself possess rights or obligations resulting from contracts. Consequently, there
must be an acting or managing partner who acts on behalf of the
association. This too is different from the provision of the old code
according to which an association could become a juridical person by
an expression of intention. As for the distribution of profits and losses,
Article 674 stipulates that the rate of distribution is determined in
proportion to the contribution of each partner. By and large the
provisions of the new code on associations resemble those of the BGB.
Although the term kumiai was in use in traditional Japan, as a
premodern precursor to associations the merchant associations (kabu
nakama) of the Edo period deserve mention. These were monopolistic
organizations that operated collectively in the interest of their members.
Their aim had been to ensure a minimum of government interference
in their respective field of business activity. Since they had been chartered as monopolistic organizations by the authorities, they did make
37
38
Chapter 4.
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258
payments to the authorities in return for privileges.39 Kabu nakama do
share some characteristics of associations as defined in the Civil Code.
They had a common objective, bylaws, and elected management. However, they were disbanded soon after the Meiji Restoration and had
thus very little, if any impact on the legislative process in the Meiji era.
3.3.5.13. Life Annuities
Both the old and the new codes contained provisions on life annuities
(shùshin teikikin) which were defined as gratuitous contracts by which
one party agrees to make periodical payments to the other or a third
party until the death of himself, the other party, or the third person (Art. 689). Although similar instruments can be assumed to have
existed prior to the promulgation of the Civil Code, they had not
been the subjects of legislative efforts of the Meiji government.
3.3.5.14. Compromise
Articles 695 and 696 of the code form the section on compromise
(wakai ). For all intents and purposes this section can be said to state
the obvious, especially in a legal environment that had traditionally
relied on conciliation as an important means of conflict solution.
References to the institution of conciliation (mandatory and otherwise)
have been made throughout this chapter and shall not be repeated here,
if only because this discussion belongs more properly to the chapter
on Civil Procedure. It should be noted, however, that strictly speaking
the compromise of the Civil Code is different from the compromise
in the Code of Civil Procedure (Art. 136), insofar as the latter is a
method employed by a judge in order to solve a dispute. Wakai in the
sense of the Civil Code, in contrast, is a contractual agreement
effecting a private compromise between the parties involved.40
3.3.6. Business Management (Arts 697–702)
When the drafters of the New Civil Code dealt with provisions on
Business Management ( jimu kanri ), it was decided to separate this
39
40
For a brief discussion of kabu nakama see Steenstrup, pp. 148–149.
On the definition of compromise see Henderson, Conciliation, pp. 186–187.
law of obligations
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topic from the section on unjust enrichment in the Old Civil Code.
They also went further than the drafters of the BGB in making
Business Management a separate (if brief ) chapter of the Law of
Obligations. The chapter deals with the consequences of a situation
where one person (the manager, kanrisha) manages the business of
another (the principal, honnin) without being asked to do so, be it
out of kindness or in response to an emergency. By the logic and
nature of things, assumption of another person’s business affairs without express authorization does not necessarily imply unjust enrichment. On the other hand, such a situation is likely to lead to the
creation of new obligation, hence the treatment of the topic in a
separate chapter. Articles 697–702 stipulate the obligations of the
manager first and foremost. The most important and general obligation of the manager is to conduct the business in manner best calculated to insure the interests of the principal (Art. 697).
There does not appear to have been such a separate category in
either statutory or customary law prior to the promulgation of the
Civil Code. The provisions of the code are essentially the same as
those of the BGB.
3.3.7. Unjust Enrichment (Arts. 703–708)
Unjust Enrichment ( fùtò ritoku) occurs according to Article 703 when
a person derives benefit from the property or labor of another and
thereby causes a loss to the other person. Generally, the person
enriched by unjust means is liable to make restitution to the extent
of the still existing benefit. In other words, if no benefit was derived,
no restitution needs to be made. This chapter also covers scenarios
in which the person enriched is not required to make restitution,
such as prestation made on a non-existent obligation (Art. 705) or
for an illegal cause (Art. 708). Although the provisions of this chapter can be found in a fairly similar form in the German BGB, it
should also be noted that Meiji period judicial practice started to
recognize constructs such as prestation for an illegal cause comparatively early on its own accord.41
41
See Hosokawa (note 6), pp. 234–235 for excerpts from relevant court decisions.
260
civil code
3.3.8. Unlawful Acts (Arts. 709–724)
The last chapter of the Law of Obligations deals with Unlawful Acts
or Torts ( fuhò kòi ). The provisions of this chapter deal with the extent
of and limitations on liability of persons for the intentional or negligent violation of the rights of others. The general clause of Article
709, which states that, “a person who has intentionally or negligently
violated the rights of another is bound to make compensation for
any resulting consequences” is derived directly from the Code civil.42
However, legal practice in the Meiji period did start to develop a
concept of unlawful acts.43 The provisions of Articles 710 and 711
stipulate that liability is not limited to compensation for damages of
property, but extends to injuries of person, liberty, and honor and to
relatives of a person killed. Incapacitated persons are generally released
from liability, however, the legal guardian or supervisor is held
accountable if he was negligent in his supervision (Art. 714). The
same goes for acts perpetrated by an employee in the execution of
the business of his employer, in this case the employer is held liable
(Art. 716). Liability for damage caused by structures rests first with
the possessor, the owner is held liable only if the possessor can prove
due diligence (Art. 717). Interesting is further the provision of Article
721, which states that an unborn child is regarded as already born
with regard to claims for damage compensation.
With regard to the problem of liability, several more recent developments deserve mention. The first is the introduction in 1947 of a
law governing the liability of the state and its organs and representatives. This law modifies the provisions of the Civil Code somewhat.
Public servants are thus not personally liable for damages they have
caused in execution of their duties, the state is. The state is furthermore
prevented from pleading due diligence, but can demand restitution
from the official in cases of intent and gross negligence.44
A second important development is the recognition in judicial
practice of the concept of strict liability (mukashitsu sekinin), i.e. the liability to compensate for damages when there was no intent or neglect,
or liability without fault. The Civil Code provides only for liability
based on negligence (kashitsu sekinin). This construct was deemed
42
43
44
See Igarashi (note 15), p. 108.
Hosokawa (note 6), pp. 235–237 provides evidence for that fact.
See Igarashi (note 25), p. 112.
law of obligations
261
insufficient in light of the development of chemical and other industries in postwar Japan that created dangers to society that were not
attributable to negligence or intent. A proliferation of pollution related
diseases45 in the decades of high-speed economic growth gave rise to
a series of widely publicized court cases that brought the public’s attention to matters of liability for these obvious damages to the environment. As a result of these cases the doctrine of strict liability was
applied to the defendants, major industrial corporations. Victims do
not need to prove negligence or intent on part of the perpetrators,
instead in pollution cases the burden of proof is on the defendant.
Legal scholarship has been trying to identify a theoretical foundation
for strict liability. One theory emphasizes the responsibility for compensation, claiming that a party profiting from an activity is liable
for damages resulting from that activity even if it is not unlawful.
Another theory holds that anybody creating a danger to society for
whatever reason is liable for damages.
Legislation has been also used to provide a framework for helping
victims of pollution related diseases and for holding polluters accountable. Since 1973 there is a “Pollution related Health Vitiation Compensation Law” (Kògai kenkò higai hòshò hò ), although its effectiveness has
been reduced by subsequent revisions.
The principle of strict liability is also employed in cases of product
liability, especially with regard to cases of massive food poisoning and
the like.
In short, of all chapters of the Law of Obligation as originally
promulgated in 1896, the one on “unlawful Acts” has perhaps undergone the farthest-reaching development.
45
For example the Minamata disease, Yokkaichi and Kawasaki asthma, to name
but a few.
civil code
262
3.4
Family Law
Petra Schmidt
1. Introduction
During the Tokugawa period (1600–1868) the extended family or
‘house’1 (ie) formed Japan’s smallest social unit, usually comprising
three generations of one family. Japanese social anthropologist Ariga
Kizaemon described this institution as follows: A ‘house’ is being
considered existing uninterruptedly from the past into the future,
irrespective of the birth or death of its members. The ancestors and
the descendants are mutually linked by the idea of family genealogy,
which is not understood as a relation merely based on blood lineage
and succession, but rather as a number of relations, which are necessary for the maintenance and continuation for the ‘house’ as an
institution.2 On top of the ‘house’ stood the head of the ‘house’,3
endowed with vast powers and authority, and all rights belonging to
the head of the ‘house’ such as the continuation of the name of the
‘house’,4 the administration of the ‘house’altar and the seal of the
‘house’, passed on to his designated successor. Even when a ‘house’
had no sons, but daughters and when the head of the ‘house’s’ wife
was alive, it was considered not to have an heir, for upon marriage
daughters usually entered their new spouse’s ‘house’. If no heir existed,
the ‘house’ faced the threat of extinction. To prevent such a disastrous event, if was quite customary for an heirless ‘house’ to adopt
1
The origins of the house or family system in Japan are somewhat obscure.
Although some contemporaries like N. Hozumi saw the origin in ancestor worship,
other authors regarded it as a product of various influences, such as Chinese civilization and feudalism. The latter one seems more likely because of the confucian
character of the house; see N. Hozumi, Ancestor Worship and Japanese Law (Tokyo
1901), J.H. Gubbins, The Civil Code of Japan, Part II (Tokyo 1899) IV. A very
detailed study of the house system can be found in R. Ishii, le to koseki no rekishi
[The History of the House and the House Register] (Tokyo 1981) and in H. Idota,
Kazoku no hò to rekishi [Law and History and the Family] (Kyòto 1993) 13 et seq.
2
S. Linhardt, Familie [Family] in: H. Hammitzsch [ed.], Japan-Handbuch
(Wiesbaden 1981) 546.
3
koshu
4
kamei
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263
a successor.5 It was also not uncommon, to adopt the husband of a
‘house’s’ daughter and confer her right to succession on him.6
2. The Compilation of the Meiji Civil Code 7
To free Japan from the disgrace of the unequal treaties which the
country had concluded with sixteen western powers in the last years
of the Tokugawa period, and to end extraterritoriality, the modernization
of Japan’s legal system, which was regarded as incomplete by the
Westerners, was one of Japan’s predominant tasks during the early
years after the Meiji Restoration.8 One of the first projects undertaken
by the new government was the compilation of a Civil Code. Since
the French ‘Code Napoleon’ had been known in Japan since the
late years of the Tokugawa period as a masterpiece of Western legislation, the Meiji government in 1869 ordered its translation as a
first step towards the compilation of a Japanese Civil Code.9 As early
as 1870, conferences on the compilation of such a Code were held
within the Great Council of State’s ‘Bureau for the Investigation of
Institutions’.10 In July 1871 the Bureau had produced the ‘Civil Code
Resolution’.11 In close resemblance to its French model, this ‘Resolution’
comprised five books on the Enjoyment and Loss of Civil rights, on
Acts of Civil Status, on Domicile, on Absentees and on Marriage.
Due to an institutional reform within the Great Council of State,12
the Chamber of the Left13 was established in July 1871. The following
5
F. Tappe, Soziologie der japanischen Familie (Sociology of the Japanee Family)
(Münster 1955) 16–17.
6
T. Maeda, Ane Katoku (Succession by the Eldest Daughter) (Òsaka 1976) 1;
N. Hozumi, The New Japanese Civil Code as Material For the Study of Comparative
Jurisprudence (Tokyo, Saint Louis 1904) 5; for details also see ‘Law of Succession’.
7
For a detailed study of the compilation of the Meiji Civil Code see: R. Ishii,
Minpò-ten no hensan (The Compilation of the Civil Code) (Tokyo 1979).
8
H. Honda, Sòzoky to josei no chii 1–3 (Succession and the Position of Women,
1–3) (Kyòtò 132); see also M. Tokichi, The New Civil Code of Japan: 92 The
Arena 64, 64 (1897).
9
R. Ishii, Japanese Culture in the Meiji Era, Volume IX, Legislation (Tokyo
1958) 578.
10
Dajòkan seido-kyoku; see Hozumi, note 6, at 6.
11
Minpò ketsugi; R. Ishii, Minpò ketsugi ni tsuite [Concerning the Civil Code
Resolution]: 29 Hòritsu jihò 86 (1957).
12
Dajòkan
13
Sa’in
264
civil code
month, the ‘Chamber’ merged with the ‘Bureau for the Investigation
of Institutions’. The ‘Chamber’ continued to work on a compilation,
and although its efforts were still based on French law, now traditional Japanese law and legal customs were taken into consideration
as well. Soon a number of drafts on ‘house’ headship, inheritance
and legacy, on adoption, guardianship and marriage were produced.14
Thereafter, from April 1872, work continued within the Justice
Department,15 and by July 1872 the ‘Revised Tentative Civil Code’16
had been completed. This draft was further developed until in October
of the same year Japan’s first comprehensive Civil Code draft, the
‘Imperial Civil Code Provisional Rules’,17 comprising 1185 articles,
was completed.18 Etò Shinpei, the Minister of Justice, in October
1872 opened a Civil Code conference, where Japanese and foreign
jurists continued deliberations, eventually producing the ‘Civil Code
Provisional Legal Rules’19 in March 1873. These rules, however, saw
no further development, mainly due to the fact that Etò took part
in the Saga Revolt of 1874 and, as a consequence, was executed.
Under Etò’s successor Òki Takatò, French law professor Gustave
Boissonade, a foreign advisor to the Justice Department, started lecturing on the Code Napoleon in June 1874. In 1875, a Committee
for the Compilation of the Civil Code was appointed, and in April 1878
a complete draft with 1820 articles was finished. This draft, however,
was hardly more than yet another translation of the Code Napoleon.
The next attempt was stated in 1880, again by Boissonade, who
submitted his draft to the ‘Bureau for the Codification of the Civil
Law’,20 which had been established within the Senate,21 in 1881.22 The
Bureau was abolished in 1886, and instead a ‘Law Investigation Commission’23 within the Justice Department was established in 1887. This
committee completed its report in 1888; the new draft was submitted
to the Senate24 for deliberation and soon afterwards adopted. Unlike
14
R. Ishii, Sa’in minpò sòan 1 [The Chamber of the Left’s Civil Code draft]: 60
Kokka gakkai zasshi 27 (1946); Ishii, note 9, at 579.
15
Shihò-shò
16
Kaisaku miteibon minpò
17
Kòkoku minpò kari-kisoku
18
R. Ishii, Meihòryò minpò sòan [The Meihòryò Civil Code Draft]: 29 Hòritsu Jihò
1032 (1957).
19
Minpò kari-hòsoku
20
Minpò hensan-kyoku
21
R. Ishii, Meiji jùichinen minpò kenkyù 2 [ The 1878 Civil Code Draft, 2]: 30
Hòritsu jihò 704 (1958); Ishii, note 9, 580; Hozumi, note 6, at 6.
23
Hòritsu torishirable iin-kai
24
genròin
family law
265
the other books of the draft code, the books on family and succession
had not been compiled by Boissonade himself. Instead, the Japanese
commissioners signed exclusively responsible for these parts, although
their efforts had clearly stood under Boissonade’s influence and guidance.25 The special features of the 1888 draft were described ‘to lie
in the point that while following, on the surface, legislative policies
determined politically and while extolling respect for [folk] customs
and ways, in fact it tried to regulate family relations in conformity
with the changes in property law since the Restoration. That is, it
can be supposed that the drafters settled two matters in advance, as
a core, which ran throughout the entire body of the draft. One was
to confirm the capacity of rights of a wife and family members, and
the other was to recognize an inheritable share of property for a
second and third son, etc., while at the same time preserving the
inheritance of the ‘house’ headship by the eldest son, to provide for
a system of property inheritance based on the death of a family
member and to recognize the institution of a community of income
system under a matrimonial property regime. Furthermore, both
stood in a supplemental relationship to each other, with the former
given the name and the latter given the substance.’26
On 27 March, 1890, the parts drafted by Boissonade—‘Property
in General’, ‘Means on Acquiring Property’, ‘Security Rights in
Personam and ‘Evidence’—were published as Law No. 28. The book
on ‘Persons’ and the part on ‘Succession’ of the book on ‘Means of
Acquiring Property’, which had been compiled by Japanese jurists,
were published on 16 October, 1890. The whole Code27 was to be
enforced on 1 January, 1893.28
25
Y. Tezuka, Meiji nijusannen minpò (kyù-minpò) ni okeru koshu-ken [The authority
of the head of house in the 1890 Civil Code (Old Civil Code)]: 26 Hògaku kenkyù
711 (1953); Ishii, note 9, at 581–2.
26
Y. Kawashima/N. Toshitani, Minpò ( jò) [Civil Law I]: M. Ukai [ed.], Kòza
Nihon kindai-hò hattatsu-shi [Collected Essays on the History of the Development of
Modem Japanese Law] (Tokyo 1958) 33 et seq.; transl.: K. Mukai/N. Toshitani,
The progress and problems of compiling the Civil Code in the Early Meiji Era: 1
Law in Japan 25, 55 (1967).
27
Hereafter ‘Old Code’.
28
Hozumi, note 6, at 7; the impression of a contemporary jurist about this Code
might be of interest here: “. . . the draft was a genuine French code, being a literal translation of the Code Napoleon in all parts excepting the part dealing with
the Law of Persons. The question may well be asked why it took the Commission
twenty long years to produce this imitation draft code when we know that the draft
of the Code Napoleon itself was completed within the short period of four months.
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civil code
It would never see the light of day, however, since soon after the
publication of the Code, heated debates started among Japanese
lawyers and politicians. First criticism came from among those jurists
who had studied Anglo-Saxon Law at Tokyo University or in the
United States or Great Britain.29 This ‘postponement faction’30 demanded to postpone the Old Code and have it revised completely.
Those who had studied French law, on the other hand, demanded
the immediate enforcement of the Code.31
But in fact the battle had already been initiated in May 1889 by
the ‘Statement Concerning the Compilation of Codes’,32 published
by the ‘Bachelors of Jurisprudence Association’.33 The fears of the
opponents of the Old Code—especially of its parts on Family and
Succession—were epitomized in Hozumi Yatsuka’s famous 1891 work
‘If the Civil Code Appears, Loyalty and Filial Piety will Die’.34 The
discussion intensified with the postponement faction publishing their
‘Opinion for Postponement of the Code’s Enforcement’ the following year.35 In this treatise, the Old Code’s opponents claimed that
this Code would destroy all moral relationships and norms, since it
was devoid of the thinking of the nation and therefore would throw
the whole society into total confusion. In response to these actions taken
by the opponents of the enforcement of the Old Code, the ‘Ruleby-Law Association’36 published the ‘Opinion for the Code’s Immediate
Enforcement’.37 In this ‘Opinion’, the Old Code’s proponents asserted
that any delay in the enforcement would not only disturb the order
of the state and cause the breakdown of morals, but also jeopardize
the carrying out of the Constitution and thus prevent people from
The answer seems to be that the Commission spent almost this entire time in their
efforts to reconcile the principles of the French Law of Persons with the Japanese
laws and customs bearing on that subject.” see: Tokichi, note 8, at 66.
29
Tokichi, note 8, at 67 cites the opposition: “The draft Code was a blind imitation of a foreign Code which itself was far from being free from defects. It
abounded in definitions, illustrations, and examples, and presented an appearance
more becoming to a text-book of law than the Civil Code of a great nation . . . It
made too many innovations upon the Law of Persons hitherto obtaining in Japan . . .”
30
enki-ha
31
‘Enforcement faction’ or dankò-ha; Hozumi, note 6, at 7; Tokichi, note 8, at
67 compared this dispute to the fight between Savigny and Thibaut.
32
Hòten hensan ni kansuru iken-sho
33
Hò-gakushi-kai
34
Minpò idete chùkò horobu
35
Hòten jisshi enki iken
36
Hòchi kyòkai
37
Hòten jisshi dankò no iken
family law
267
receiving complete protection of their rights. Meanwhile the codification
debate38 had spread into politics as well and as a result Murata
Tamotsu, a member of the House of Peers, submitted a bill to postpone the enforcement to the Third Imperial Diet in May 1892. This
bill was passed soon afterwards and the introduction of the Old Code
was postponed by Law No. 8 until 31 December, 1896.39 In 1893
a Codification Committee40 under Prime Minister Itò Hirobumi was
established by Imperial Edict. As representatives from different law
schools Hozumi Nobushige, Tomii Masaaki and Ume Kenjirò were
appointed to this committee to prepare a draft.41 Inquiries commenced
in May 1893. The commissionaries based their work on the pandecten
system, albeit collecting as many codes, statutes, and judicial reports as
possible. They adopted what seemed suitable, while at the same time
paying due consideration to traditional Japanese legal views and customs for the compilation of the books on Family Law and Succession.42
In January 1896 the books ‘General Provisions’,43 ‘Real Rights’44
and ‘Claims’45 were submitted to the Imperial Diet, there adopted and
in April promulgated as Law No. 89. The books on ‘Family’46 and
‘Succession’47 were submitted to the Diet in May 1898 and promulgated
as Law No. 9 in June that year. The whole Code went into force
as the Civil Code of Japan on 16 July 1898.48
2. Family Law in the Early Meiji Period
It is first of all noteworthy that during the Meiji period a standardization
of Family and Inheritance Law for all Japanese nationals had been
accomplished for the first time in Japanese history. Until the early
years of the Meiji era legal standards had differed according to the
38
Known as hòten ronsò or hòten sògi.
Z. Nakagawa, Chùshaku shinzokuhò 1 (Commentary on Family Law 1) (Tòkyò
1957) 3; Honda, note 8, at 133.
40
Hòten chòsa-kai
41
Hozumi, note 6, at 9–10.
42
43
sòsoku
44
bukken
45
saiken
46
shinzoku
47
sòzoku
48
Z. Nakagawa, Sòzoku (Succession) (Tòkyò 1964) 27.
39
268
civil code
social class a person belonged to, mainly being divided into regulations
for the nobility, for samurai and for commoners. It was only in 1877
that the stipends, which the samurai traditionally had received from
their feudal lords, were replaced by pension bonds, thus opening the
way for equal treatment of all classes before the law. It was, however, the previous set of standards for the samurai, which became
the basis for the legislation in the Old Code, taking precedence over
the more liberal ideas of French law.49
3.1. The ‘house’
During the Tokugawa period ‘houses’ both of samurai and of commoners
were defined as consisting of the head of ‘house’, his spouse and
their lineal descendants, as well as certain other relatives, who lived
together. The head of a samurai ‘house’ held considerable authority
in all ‘house’ and family affairs and was the legal and social representative of the ‘house’, whereas in commoners’ families the head of
a ‘house’ and its members were rather bound by a moral relationship.
The basic composition of the ‘house’ did not essentially change
during the Meiji period. ‘Houses’ were for the first time registered
from 1868, still following the traditional distinction of nobility, samurai, and commoners. The legal basis for the household later became
the ‘Household Register Law’50 of May 1871.51 The first registers
under this law were completed in 1872, including information on
the number of households within one district, the number of ‘house’
members, dates of births and deaths of ‘house’ members and records
of their egress and ingress to the district.52 The registration was essential for a ‘house’ to be given legal recognition.
Moreover it was essential for a ‘house’ to have a househead, who
possessed a variety of rights and duties. These included for instance
the right of ownership of all the property of the ‘house’,53 the worship
of the ancestors, but also the duty of support for the members of his
49
Yoshioka, note 29, at 11; Ishii, note 9, at 661.
Koseki-hò; aiming at the recording of all men liable for military service—universal conscription had been intoduced in 1870—every Japanese, except for members of the Imperial Family, had to be registered.
51
H. Maki/T. Fujihara, Nihon hòsei-shi [History of Japanese Law] (Tokyo 1993)
276; H. Otake/H. Maki, Nihon hòseishi (History of Japanese Law) (Tòkyò 1987) 249.
52
Maki/Fujihara, note 50, at 276.
53
kasan
50
family law
269
‘house’. Since the genealogical line of a ‘house’ was perpetuated in
the paternal line, during the early Meiji period only a male could
become a head of ‘house’. However, since 1873 it had become possible for a woman, too, to take up such a position, but only temporarily
until a male head of ‘house’ could be found.54
The position as head of a ‘house’ was lost in case of death, merger
or extinction of a ‘house’, divorce of an adopted husband-heir or
dissolution of an adoption. Furthermore, a system of abdication or
retirement was not unknown. Commoners could abdicate freely at
any time, but according to Great Council of State Decrees Nos. 171
and 172 a head of a samurai ‘house’ had to be at least 50 years old
to retire or be disabled. But since ‘disability’ was defined rather broadly,
it served as an excuse to dispose of an unwelcomed or unable head of
a ‘house’. Thus in practice abdication was almost unrestricted. Abdication for family reasons and for the convenience of the ‘house’ was
also acknowledged, as was the abdication of a head of ‘house’ in
favour of his adoptive father or a natural son of his. Under certain
circumstances even abdication against the will of the head of a ‘house’
was possible. The ‘Hereditary Property Law for Peers’55 of 1872 stipulated that a female head of ‘house’, who married or adopted a
male child, had to hand over her position to her husband or son.
According to the Great Council of State Decree No. 58 of 1875, a
minor househead had precedence over an adopted husband of his
mother or an adopted heir. Furthermore, a head of ‘house’ could
be forced to abdicate upon resolution of the Family Council. But if
such a resolution had been made on the ground of the mental illness of the head of a ‘house’ etc., either his consent or a court order
was necessary. Had the head of a ‘house’ disappeared or deserted,
the installment of a new head was possible after the elapse of two years.
Had a head of a ‘house’ committed a crime and had he therefore
been sentenced to imprisonment for more than one year, he could
be replaced only in case of extreme poverty of his ‘house’. In none
of the aforementioned cases was the househead’s consent necessary.56
During the Tokugawa period, the concept of individual property was
not known yet in Japan, and thus a ‘house’ member was not allowed
to own separate property. All property belonged to the ‘house’, and
54
55
56
Ishii, note 9, at 664.
Ka-shizoku katoku sòzoku-hò, Decree No. 28 of 1872.
Otake/Maki, note 50, at 250.
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civil code
its members did not have the right to possess or use such property,
although the head of a ‘house’ could permit them to do so. It was
only after the Meiji Restoration that the Government began to award
commendable men with annuities or the like on grounds of personal
merit. Since such property or income could not be treated as property of the ‘house’, the institution of private property of individuals
was established for the first time.57 However, if a member of a ‘house’
sold or purchased land of his own, he still needed the signature of
the head of his ‘house’ to do so. Furthermore any property which
had not been specifically registered in the name of a member of the
‘house’, was presumed to belong to the head of the ‘house’.58
As to family relations, besides the position and relations of the
members of a ‘house’, the ‘Outline of the New Criminal Law’59 of
1870 was the first Meiji period piece of legislation to classify relatives.
The Tokugawa-style classification of near relatives, distant relatives,
and relatives by affinity had been given up in favour of the traditional
Ritsuryò system,60 which had given precedence to lineal relationship.
Furthermore, five degrees of relationship regarded as ‘family,’61 instead
of the previous three had been adopted. This classification of relatives
by degree of relationship was abandoned by the Old Criminal Code,62
which was enforced in 1882, at the same time ending the application
of criminal provisions on the matter in civil law. This led to the
Great Council of State’s interim definition of relatives as related
members of primary and branch ‘houses’ who shared the same ancestors plus current members of a ‘house’.63 The ‘Enforcement Regulations for the Code of Civil Procedure’ of 1890, however, once again
referred to the definition made in the Old Criminal Code.64
57
In 1873 a law was enacted, which abolished the prohibition of the sale of and
and granted titledeeds to landowners. This and other subsequent legislations led the
courts to recognize separate property of house members; Hozumi, note 6, at 64.
58
Otake/Maki, note 50, at 249–250.
59
Shinritsu Kòryò, Great Council of State Decree No. 94 of 1870.
60
Ritsuryò law was based on the Chinese legal system, as introduced in the seventh
century and compilated in the Taihò Code of 701 and the Yòrò Code of 718.
61
shinzoku
62
Kyù-keihò, Great Council of State Decree No. 36 of 1880.
63
64
Yoshioka, note 29, at 15.
family law
271
3.2. Marriage and Divorce
The legal provisions regarding marriage underwent a thorough change
during the Meiji period. The ‘Outline of the New Criminal Law’ of
1870, again reviving Ritsuryò law, comprised a provision, which gave
a concubine the status of a relative of the second degree, like that of
a wife. The husband at the same time was a relative of his wife in
the first degree.65 This provision was annulled, however, by the Old
Criminal Code of 1882.
As to marriage certain formal and material conditions were created
during the early Meiji years. The ‘Marriage Regulations’ of 1870 stipulated the necessity of an application to the Great Council of State in
cases of the marriage of nobles. Samurai and commoners had to apply
to their local authorities. The following year, 1871, the ban of intermarriage between the different classes was lifted by Great Council of
State Decree No. 437, and marriages with foreigners became allowed
in 1873.66 In 1875 the Great Council of State decreed67 that marriage,
divorce, adoption and dissolution of an adoption were only valid after
registration in the relevant household registers.68 De facto marriages,
however, became officially recognized by Justice Department Notice
No. 46 in 1877, which stated that a husband and wife or an adopted
child who had failed to register appropriately, should still be regarded
as husband and wife or adopted child, if their family, relatives and
neighbours considered them as such. According to the Great Council
65
Unlike a marriage, which was arranged through the agency of a go-between
(nakòdo), a union with a concubine (mekake) was not arranged by a go-between.
Taking a concubine in was an arbitrary decision of the man and with acquiescence
of the concubine’s family. The arrangement, known as ukedashi, is made by paying
money to the family of the concubine’, see: M. Arinori, On Wifes and Concubines
Part I, 8 Meiroku Zasshi (1874) = W.R. Braisted, Meiroku Zasshi: Journal of the
Japanese Enlightenment (Tokyo 1976) 100 fn. 8. Gubbins, note 1, at XII; although
the ‘Outline of the New Criminal Law’ and the ‘Amended Criminal Regulations’
(Kaitei Ritsurei, Great Council of State Decree No. 206 of 1873) regarded both the
wife and the concubine as relatives in the second degree, differences were made in
the provisions on assault inflicting bodily injury, where the punishment for assault
on a husband was the heaviest, the one for harming a wife slightly more lenient
and even less in case the victim was a concubine; Otake/Maki, note 51, at 251, 252
66
R. Ishii, Nihon kon’in-hò-shi [The History of Japanese Marriage Law] (Tokyo
1977) 343.
67
Decree No. 209.
68
Ishii, note 9, at 667; also see B.R. Mayer, Wandel und Kontinuität im japanischen Adoptionsrecht (Change and Continuity in Japan’s Law of Adoption)
(Köln . . . 1996) 31.
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of State Decree of 1873 concubines had to be registered too, and
both aforementioned decrees were also to be applied to concubines.69
Since the practical application of these decrees was not to be standardized for quite some time, actual differences in the application
caused the emergence of the following theories:
(1) a theory, according to which the decree of 1875 established the
principle of lawful marriage,
(2) another theory, which postulated the affirmation of the already
existing system of lawful marriage by this decree, and
(3) a third theory, which denied the existence of such a system until
the Meiji Civil Code was enforced in 1898.70
As to the material conditions of a marriage, originally no provisions
on marriage age existed. During the first years of the Meiji period it
was stipulated that a girl had to be at least twelve years of age to
marry.71 The ‘Outline of the New Criminal Law’ made bigamy a
punishable crime, and this provision was later included in the Old
Criminal Code. In 1874 it was requested that a woman had to wait
300 days to remarry. However, an exception was provided for the
case of the remarriage of a pregnant widow, where the waiting period
was reduced to six months.72 Adulterers, who had been punished as
such, were not allowed to marry.73 Another material condition for
marriage was that relatives within a certain degree could not marry. In
case of samurai not only lineal blood relatives and collateral relatives
within the third degree of relationship were forbidden to marry in the
early Meiji years, but also relatives who were relatives of collateral
relatives by affinity. Even stricter restrictions applied to women.74
Furthermore, marriage required the consent of the head of a ‘house’,
and probably also of the parents.75
As to the effects of marriage, a wife entered her husband’s ‘house’
upon marriage, with the exception of a husband of a female househead,
who entered his wife’s ‘house’. A wife kept her original surname even
after entering her husband’s ‘house’, usually until her husband became
69
70
71
72
73
74
75
Ishii, note 65, at 265 et seq.
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273
househead or established a branch ‘house’.76 A wife had the duty to
live with her husband, and the husband had to support his wife.
According to the Code of Criminal Instruction77 of 1880 a wife was
deemed incapacitated, with her husband being her legal representative.78
Similarly, in the field of civil law a wife could not carry out any
financial transactions, unless she was the legal guardian or representative
of her husband. Marital property then was based on the principle of
separation of property and sale; purchase, transfer etc. among spouses
was not allowed.79
One of the wife’s—and concubine’s—most important duties was
to be faithful to her husband. The ‘Outline of the New Criminal Law’
as well as the ‘Amended Criminal Regulations’ included provisions
according to which an unfaithful wife or concubine was to be punished.
The Old Criminal Code too, comprised an article on the punishment
of an adulterous wife. The ‘Outline of the New Criminal Law’ and
later the ‘Amended Criminal Regulations’ gave a husband, whose
wife had been unfaithful to him, the right to kill his wife and the
adulterer on the spot without any punishment, and the Old Criminal
Code provided for leniency for the husband in such a case.80
Dissolution of a marriage in the early Meiji period was effected
by the death of a spouse or by divorce.81 A divorce was possible
either by mutual consent or judicial decision. In case of a divorce
by mutual consent all that had to be done formally was to notify
the local authorites.82 In the initial years after the Restoration a wife
still needed a letter of divorce from her husband to obtain a divorce,
as had been the tradition in Japan for many centuries.83 Great Council
of State Decree No. 162 of 1872 eventually granted the wife the right
to appeal for divorce only in case of unavoidable circumstances.
In 1872 different procedures for divorce petitions by a husband or
76
Ishii, note 9, at 669–670.
Chizai-hò; Great Council of State Decree No. 37 of 1880.
78
79
80
81
About divorce in early the Meiji period see also W. Humbert-Droz, Das
Ehescheidungsrecht in Japan (Law of Divorce in Japan) (Köln . . . 1985) 107 et seq.
82
83
Traditionally such a letter needed to consist merely of three and a half lines, and
therefore was referred to as mikudari-han; see Y. Watanabe, The Family and the Law:
The Individualistic Premise and Modern Japanese Family Law: A. v. Mehren [ed.],
Law in Japan: The Legal Order in a Changing Society (Cambridge 1963) 364, 367.
77
274
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a wife were set up. A husband could divorce his wife unconditionally,
if she had been sentenced to imprisonment for one year or more. When
the wife was severely ill or when the Family Council could not reach
an agreement on the husband’s demand for a divorce, he needed a
court’s permission for a divorce.84 If a wife sought a divorce on grounds
of her husband’s severe illness or punishment for a crime, she had
to appeal to a court, if the husband did not consent to her request.
The same applied, if in case of a husband’s mental illness, the Family
Council could not reach an agreement. Originally, divorce on the
grounds of a spouse’s desertion or disappearance had been treated
according to different procedures, but this distinction was abolished
by Great Council of State Decree in 1884. Now in both cases either
husband or wife could appeal for divorce after 24 months, and
under special circumstances after 10 months. Even though it seems to
have been common for a divorced wife to receive alimony from the
former husband and to continue to be registered in his household
register, no such legal duty of the husband existed.85 According to
Great Council of State Decree No. 209 of 1875, however, a woman
could apply directly to a court for divorce, as long as she was accompanied by a male relative. It seems that such appeals were regularly
granted on the grounds of protecting the wife’s human rights.86
Acknowledged grounds for ‘a judicial divorce were: desertion or disappearance of the spouse for two years;87 imprisonment of the husband
for one year or more; profligacy of the husband and severe illness.88
3.3. Parent and child
Like in the Tokugawa period, during the Meiji period a distinction was
made between legitimate children,89 illegitimate children,90 and illegitimate recognized children.91 The ‘Outline of the New Criminal Law’
defined legitimate children as children of a wife or concubine, and from
84
86
Watanbe, note 82, at 367 note 18; Ishii, note 65, at 441.
87
During the early Meiji period a husband could divorce immediately after his
wife had disappered. Later he too had to wait for two years.
88
89
chakushi
90
seishi
91
shoshi
85
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275
1874 even a child born within 300 days of the dissolution of a marriage was regarded to be legitimate. But if it was obvious that the child
could not have been fathered by its mother’s husband, the local
authorities would deny the legitimacy and register the child as a natural child92 of the wife.93 This practice changed in 1884, when the
authorities starting to register such children in their mother’s husband’s
register until he took action at court contesting the legitimacy of the
child.94 As a consequence of concubines no longer being recognized
since the enforcement of the Old Criminal Code in 1882, their children were no longer presumed legitimate.95
Legitimate children were regarded as relatives of the first degree,
illegitimate recognized children as relatives in the second. Illegitimate
children, according to Great Council of State Decree No. 21 of 1873,
had to be regarded as ‘natural’ children and stood in no relationship
whatsoever with their father. Decree No. 21 also provided for the
acknowledgment of illegitimate male children by their father with the
consent of the head of the mother’s ‘house’, and then register the child
in the father’s ‘house’. It was not possible to acknowledge an ‘immoral
child’.96 However, if the father and mother of an illegitimate or a
natural child married, such children were from then on regarded as
legitimate children.97
If a ‘house’ had no heir, adoption had been a common practice
ever since the earliest times in Japanese history as a means to prevent
a ‘house’ or family from extinction. Since high emphasis was laid
on the paternal line of ancestry, a son was adopted, if a ‘house’ had
no or only female offsprings. In 1870, two years after the Restoration,
the Meiji government permitted the nobility and samurai to adopt
children. Commoners had to notify the authorities according to the
‘Household Register Law’ of 1871. From 1873 onwards members of
all classes could adopt a person of any of the classes, although
different authorities had to be notified. Also in 1873 the Great Council
of State regulated in Decree No. 263 that a son could be adopted—
92
shisei-shi
Great Council of State Decree No. 209 of 1875. Registration was not encouraged, though, since the ‘Outline tor the New Criminal Law’ threatened illicit sexual relations with severe corporal punishment; Ishii, note 9, at 675.
94
95
96
ranri-shi
97
93
276
civil code
even posthumous—in case a ‘house’ had no successor. The ‘Hereditary
Property Law for Peers’ of 1873 furthermore allowed adoption in
case of a ‘house’ being extremely poor and having only very young
children. From 1875 on an adoption was only effected upon registration
in the household register, although the Justice Department in 1877
made clear that, like in case of marriage, de facto adoptions would
be recognized.98
Principally an adoption had to be made by the head of a ‘house’,
although adoption by an heir was possible, too. No limitations as to
the number of adoptive sons existed. Although the foremost reason
for an adoption was to secure an heir, it was not uncommon to adopt
a son who was to take care of an infant heir.99 Some other common
forms of adoption were that of a son as a husband for a daughter
of a ‘house’100 or a female heir.101 An adoptive child had to be chosen
from among blood relatives. Adoption of ascendants, siblings or their
spouses, heads of ‘houses’, heirs, adopted children of other ‘houses’,
guardians etc. was not permitted. But Great Council of State Decree
No. 60 of 1877 provided for the exception that a head of ‘house’ who
had to dissolve his ‘house’ on the grounds of the impossibility of its
continuation, could be adopted into another ‘house’. The head of a
branch ‘house’ could be adopted as heir to the main ‘house’. Special
regulations also applied, if an heir was needed to continue the vocation
of a ‘house’. The procedure of registration of an adoption was similar to the one in case of marriage.102
In terms of relation, the adoptee became a member of its adoptive
father’s ‘house’ upon the effectuation of an adoption, and the same
blood kinship as between the adoptive parents and their relatives
existed between the adoptive parents and the adopted child. If an
adopted child was an heir, he was regarded a legitimate child. If,
however, a natural heir was born after the designation of an adopted
child as heir, the latter one could be stripped off this position by
decision of the Family Council in favour of the natural heir.103
To dissolve an adoption, mutual consent or a court decision was
necessary. From 1875 a dissolution on mutual consent had to be
98
Ishii, note 9, at 676–677; Otake/Maki, note 50, at 254; also see Mayer,
note 67, at 32.
99
100
mukoyòshi
101
nyùfu, Ishii, note 9, at 678.
102
103
Ishii, note 9, at 679; Otake/Maki, note 51, at 254.
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277
registered in the household registers. Samurai, however, were forbidden
to dissolve adoptions by mutual consent in 1872, although this rule
was softened the following year for certain cases such as sickness or
profligacy of the adopted. The dissolution of an adoption was altogether forbidden, if an adoptive child had already become the head
of the ‘house’. But even in such cases a dissolution could be sought
at court if one the following grounds, as specified by the Justice
Department in 1877, was given: if the adopted househead had disappeared or deserted the house for a period of at least two years;
if an adopted head of ‘house’ returned to his original ‘house’ to
become its head; upon request of dissolution of the adoptive ‘house’
when arranging to welcome a successor or in case of a sentence of
penal servitude for an adopted daughter.104
As to parental power during the early Meiji period, the system was
still heavily influenced by the values of confucianism, which had been
the state doctrine of the proceeding Tokugawa period. The utmost
principle in parent-child relationships was the concept of filial piety,105
which children had the duty to pay to their parents. That this was
far more than just a moralist obligation, was clear by the fact that both
the ‘Outline of the New Criminal Laws’ and the ‘Amended Criminal
Regulations’ comprised special provisions on the punishment of illtreatment and insult or defamation of lineal ascendants. Also the killing
of lineal ascendants was punished with greater severity than other kinds
of homicide. The 1882 Old Criminal Code also followed this principle and provided for heavier punishments in cases of certain crimes
committed against one’s lineal ascendants, whereas a certain degree
of leniency was shown in cases of crimes committed against one’s own
descendants. Parents and grandparents also were granted a special
status in Japanese Civil Law. If there was a minor head of ‘house’,
they were seen as his ‘natural guardians’106 and thus as guardians in
the first rank. Also did children always need their parents’ or grandparents’ consent for a marriage, irrespective of their age.107
Furthermore, no distinction from guardianship existed. Ishii108 assumes
that it was the head of ‘house’ and not the father who, since he was
104
Otake/Maki, note 51, at 254; Y. Tezuka, Meiji igo no oyakohò (Parent and
Child Law since the Meiji Period) (Tòkyò 1952) 74.
105
kò
106
shizen goken-sha
107
108
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278
generally guardian, had a power similar to that of parental power. The
‘Outline of the New Criminal Laws’ comprised a provision which gave
the parent the right to punish his child without legal consequences,
even in case of accidental homicide. These provisions were repealed
with the enforcement of the Old Criminal Code.109
3.4. Other Institutions
The system of guardianship as it had existed during the Tokugawa era,
continued during the early Meiji period. The Tokugawa Bakufu110 had
principally permitted guardianship only for minor heads of Daimyò111
houses’, and otherwise the practice varied from domain to domain.
As for commoners, a distinction was made between ordinary guardianship112 for minor heads of ‘house’ and interim guardianship,113 with
a relative acting as the guardian for a child of a deceased heir.114 The
guardianship for a minor househead of less than fifteen years of age,
had become compulsory both for samurai and commoners in 1873.
Generally either father or grandfather were selected as guardian.115
The Family Council116 as a meeting of relatives for the purpose
of deliberating upon important family matters has a long history in
Japan. Ishii117 cites the ‘Hereditary Property Law for Peers’, according
to which a Family Council was composed of the head of a ‘house’, and
an heir of at least twenty years of age or a guardian, as well as three
or more other relatives. Further detailed regulations on the family
council do not seem to have existed.
Mutual support between parents and children and support of members of a ‘house’ by its head was obligatory from the early Meiji era.
The details of such arrangements, however, are unclear. As regards
other relatives, morality demanded to take in and care for the needy
or to support them financially.118
109
110
111
112
113
114
115
116
117
118
Shogunate government.
Feudal lords.
kòken
chùkei sòzoku
shinzoku-kai
Note 9, at 685.
Otake/Maki, note 50, at 248–249.
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279
4. Family Law in the Old Code 119
The Old Code, which had been promulgated in 1890, but was never
enforced, was the first modern Japanese Civil Code. Although strongly
influenced by French Law, the Code’s books on Family and Succession
followed widely the already existing Japanese laws and customs, but
at the same time introduced some fundamental alterations.
The ‘house’ in the Old Code did not essentially change from the
existing system. According to Art. 243 Old Code, every ‘house’ was
headed by a koshu, and other members of the ‘house’ were the head’s
spouse and relatives by consanguinity or affinity. The head of a ‘house’
had the duty to support the members of his ‘house’.120 However, all
members had the right to own private property.121 The head of a
‘house’s’ consent was necessary in case of the marriage or adoption
of any member of the ‘house’.122
A head of a ‘house’ could lose his position upon abdication or loss
of Japanese nationality, when a nyùfu husband took over the headship of a ‘house’ from his wife or in case of the divorce of such a
marriage.123
Relatives, according to the Old Code, were such by consanguinity
within the sixth degree, and relatives by affinity in case of a wife
and her husband’s relatives.124
4.2. Marriage & Divorce
Under the Old Code marriage took effect upon the performance of
a marriage ceremony, which had to take place in between three and
thirty days after the application for marriage with the authorities.125 A
woman had to be at least 15, a man 17 years of age to marry.126 To
119
For an English translation see Shihò-shò [ed.], Civil Code Book on the Law
of Person (Tokyo 1892); see for detail: G. Boissonade, Projet De Code Civil Pour
L’empire Du Japon, Tomes 1–5 (Tokio 1882).
120
Art. 244 Old Code.
121
Art. 245 Old Code.
122
Art. 246 Old Code.
123
Vide Arts. 252, 258 Old Code.
124
Arts. 19, 24 Old Code.
125
Arts. 43, 44, 48 Old Code.
126
Art. 30 Old Code.
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280
remarry a divorced or widowed woman a man had to wait six
months,127 and marriage was denied to anyone, man or woman, who
had been punished for adultery.128 Marriage between relatives in the
direct line was prohibited, and also in the collateral line between
siblings, as well as between uncle and niece or aunt and nephew
and between relatives by affinity.129 To marry, the spouses’ parents’,
grandparents’ or guardian’s consent was necessary.130
A wife was still deemed legally incapacitated and thus she needed
her husband’s authorization for a number of legal acts such as accepting donations, selling real property, concluding loan contracts and
the like.131 Such authorization was not necessary, however, if the
husband was presumed to be absent, when he had been interdicted
or quasi-interdicted or when he was in hospital or custody for mental illness.132
As had already previously been the case, divorce could be effected
either by mutual consent or by judicial decision.133 A divorce by consent had not only to be reported to the authorities, but furthermore
the consent of parents, grandparents or guardian was necessary.134
The Code specifically enumerated the grounds for judicial divorce.
One such ground was adultery, although when committed by the
husband, it was limited to cases where he had been punished therefore.
Violent and insulting behaviour toward the spouse or his/her ascendants
was also an acknowledged ground for a divorce, and so was the
punishment for crimes, malicious desertion or declaration of absence.135
Both spouses, but no other relatives, had the right to sue for divorce.136
After a divorce, the children usually stayed in their father’s ‘house’,
unless in case of mukoyòshi or nyùfu marriages.137
127
128
129
130
131
132
133
134
135
136
137
Art. 32 Old Code.
Art. 33 Old Code.
Arts. 35–37 Old Code.
Art. 38 Old Code.
Vide Art. 68 Old Code.
Art. 70 Old Code.
Art. 81 Old Code.
Art. 87 Old Code.
Art. 32 Old Code.
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281
4.3. Parent and Child
The Old Code defined legitimate children as children who had been
conceived during a marriage, after more than 180 days from a wedding ceremony or within 300 days of the dissolution of a marriage.138
An illegitimate child was defined as a child born out of wedlock who
had been acknowledged by its father. A child whose father was
unknown, was called a natural child, but could become an illegitimate
child upon acknowledgment by its father.139 Like before, the Old
Code provided for the acknowledgment of an illegitimate child and
for the opportunity of legitimization upon marriage.140 In such a case
a legal blood-relation was created between the father’s wife and the
child.141
The law concerning adoption basically followed the already existing
rules: an adopter had to be older than the adoptee,142 and a person
who already had a son as an heir to the headship of a ‘house’ could
not adopt another son.143 The right to adopt was reserved to heads
of ‘houses’ and their heirs,144 and a married person needed his or
her spouse’s consent for an adoption.145 An heir or adopted heir could
not be adopted into another ‘house’.146 Adoptees of less than fifteen
years of age needed their parents’ consent.147 Once an adoption had
been effected, the adopted child received the status of a legitimate
child,148 and upon adoption the same relationship as between bloodrelatives was established between the adoptee and the adopter’s kin.149
As before, the dissolution of an adoption was possible either by
mutual consent or judicial decision.150 In the case of mutual consent,
the dissolution became effected after the parties concerned had
obtained permission from relevant ‘house’ members and a notification
had been made to the authorities.151 A judicial decision could be
138
139
140
141
142
143
144
145
146
147
148
149
150
151
Art. 91 Old Code.
Art. 98 Old Code.
Art. 103 Old Code.
Art. 23 Old Code.
Art. 1061 Old Code.
Art. 107 Old Code.
Art. 109 Old Code.
Art. 110 Old Code.
Art. 11 Old Code.
Art. 115 Old Code.
Art. 134 Old Code.
Art. 22 Old Code.
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282
demanded by either party in case of cruel or insulting behaviour,
punishment for crimes or prodigality.152 The dissolution of an adoption was not permitted, when the adoptee had already become the
head of a ‘house’.153
Parental power was principally exercised by the father,154 who had
the right to determine the child’s place of residence, and to discipline
and to manage the child’s property.155
Guardianship under the Old Code was no longer limited to the head
of a ‘house’, but applied to other ‘house’ members as well, if no one
existed to exercise parental power or if one was adjudged incompetent.156 The guardian had to manage the minor’s property and
was responsible for his care, custody and education.157
A Family Council was to be set up on behalf of an infant and was
composed of at least three of his nearest relatives.158
In regard to the duty of support it is noteworthy that under the
Old Code certain relatives had the duty of mutual support. The head
of ‘house’ had to provide support for the members of his ‘house’.159
Relatives by consanguinity in the direct line and siblings had to support each other when necessary.160
5. Family Law in the Meiji Civil Code 161
As it had been the custom for many centuries and as it had already
been provided for in the Old Code, the Meiji Civil Code of 1898
152
Art. 140 Old Code.
Art. 145 Old Code.
154
Art. 149 Old Code.
155
Vide Arts. 150–157 Old Code.
156
Art. 161 Old Code.
157
Vide Arts. 184–197 Old Code.
158
Art. 171 Old Code.
159
160
161
For the original text and an English translation see Gubbins, note 1; see also
e.g. W.J. Sebald, The Civil Code of Japan (London 1934) or The Codes Translation Committee, The Civil Code of Japan (Tokyo 1939); for a German see e.g.
K. Vogt, Japanisches Burgerliches Gesetzbuch [ The Japanese Civil Code] (Tokyo
1937); for detailed explanations see J.E. DeBecker, Annotated Civil Code of Japan
Vol. III (London 1910).
153
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283
finally established the ‘house’ as the basic legal unit of Japanese Family
and Inheritance Law. On top of the ‘house’ stood the head of ‘house’,
on whom vast authority was bestowed. It was expected of him to
reign the ‘house’, keep up order within the ‘house’, to protect and guide
its members and to promote the honour and material prosperity of
the ‘house’.162 The head of a ‘house’ carried out the ceremonies of
worship for the ancestors,163 administered property passed on from
the ancestors, but he also had the duty to support members of the
‘house’.164 Parent-child- and husband-wife-relations were still to a
great extent based upon old confucian values such as the concept
of filial piety, giving the head of a ‘house’ a dominating position,
while simultaneously subordinating children and especially women.165
Unlike in Western nations at the time, Japanese law and society were
not based upon the concept of the individual, but on that of the
‘house’, defined by the Meiji Civil Code as a group of persons with
the same surname,166 who were subject to the authority of the head
of their ‘house’. Members of a ‘house’ other than its head were
called ‘family’.167 Such members of a ‘house’ were relatives of a current or of a former head of ‘house’ and relatives who entered a ‘house’
with its head’s consent, such as adopted children or daughters-inlaw.168 The Meiji Civil Code provided precise rules for the determination as to which ‘house’ an individual belonged. A child entered
the ‘house’ of its father; was the father unknown, the child entered the
162
Tappe, note 5, at 15.
Hozumi (note 1) viewed the worship of ancestors as the essential foundation
of the house system and the system of the state in general. All legal institutions,
such as marriage, adoption, succession etc., even the house itself existed only for
one purpose: the perpetration of ancestor worship. Gubbins (note 1, at XXI) saw
the importance of ancestor worship in the law as a sign that ‘the point of development at which law breaks away from religion’ had not yet been reached in Japan.
For a modern study see Idota, note 1, at 183 et seq.
164
T. Taniguchi, Über das heutige japanische Familiensystem (Today’s Japanese
Family System), 10 Zeitschrift für auslandisches und internationales Privatrecht 477,
479 (1936).
165
As regards the position of women one has nevertheless to note the improvement compared to the previous system, although when looking back now this change
was by no means as fundamental as contemporary commentators had seen it; see
e.g. Gubbins, note 1, at XIII et seq.
166
Art. 746 Meiji Civil Code.
167
kazoku; see Art. 732 Meiji Civil Code.
168
Arts. 732–735 Meiji Civil Code.
163
284
civil code
‘house’ of the mother. If neither of the parents were known, the
child established a new ‘house’.169 An illegitimate child who had been
acknowledged by its father170 needed the consent of the head of his
father’s ‘house’ to enter it.171 A wife entered the ‘house’ of her husband,172 but in case of a female head of a ‘house’ her husband
became his wife’s ‘house’s’ head upon marriage.173 Relatives of a head
of ‘house’ who belonged to another ‘house’ or persons related to other
‘house’ members by marriage or adoption needed the consent of the
heads of both ‘houses’ when they wanted to enter another ‘house’.174
The consent of a head of a ‘house’ was always necessary for the
marriage, adoption, divorce or dissolution of an adoption of a ‘house’
member,175 since this usually meant a change of the membership of
the ‘house’. The head of a ‘house’ could also determine the place
of residence of the members of his ‘house’.176 On the other hand,
the head of a ‘house’ had the duty to support the members of his
‘house’,177 as he succeeded to almost all of the ‘house’s’ property
upon assumption of the headship of the ‘house’. Art. 748 of the Meiji
Civil Code, however, allowed individual members of the ‘house’ to
own separate property.
A head of a ‘house’ could lose his position by abdication,178 if he lost
the Japanese nationality,179 if he left the ‘house’ because of a divorce
or dissolution of an adoption or—upon permission by a court—
because of marriage,180 if a female head married and her husband
entered her ‘house’ as its head,181 or if such a marriage was divorced.
Inkyo,182 or ‘living in retirement’ was an institution which is often
169
shoshi
171
172
Vide Art. 732 Meiji Civil Code.
173
nyùfu; Art. 736 Meiji Civil Code.
174
Arts. 737, 738 Meiji Civil Code.
175
176
177
Art. 747 Meiji Civil Code
178
inkyo; vide Arts. 752, 753 Meiji Civil Code.
179
The loss of Japanese nationality led to the loss of the position as househead,
since the house system was a thoroughly Japanese national institution, and foreigners could not belong to a house; Hozumi, note 6, at 70.
180
181
nyùfu, Art. 736 Meiji Civil Code.
182
Earlier in Japanese history a head of a house could retire at any age, such
an abdication being called ‘youthful resignation from the headship of a house’ (waka
inkyo); DeBecker, note 160, at 27.
170
family law
285
described as of buddhist origin, and could be found all throughout
Japanese history. Legally in case of an abdication it was required
that the head of a ‘house’ be at least 60 years of age and that succession had been secured.183 Hozumi184 described four possible causes
for abdication, namely for religious reasons, if the head of a ‘house’
had decided to spend his final years as a hermit or priest; for political
reasons; legal abdication because of punishment or atonement, and
finally—as the most common reason—physiological abdication on
the grounds of ill health or old age.185
The Code was not only based upon the ‘house’, but also on kinship, which was established by relation by blood, adoption or marriage.
After various alterations and some vagueness in the definition during
the early decades of the Meiji period,186 relatives were now defined as
blood-relatives within the sixth degree of relationship, husband and
wife, and relatives by affinity within the third degree of relationship.187
Furthermore kinship like between blood-relatives existed between an
adopted child and its adoptive parents and their blood-relatives.188
And the same relationship as between parents and child existed
between a step-parent and a step-child and between a wife189 and
her husband’s acknowledged child.190
183
Art. 752 Meiji Civil Code; a female head of house could retire any time,
regardless of her age; vide Art. 755; furthermore the successor had to be a ‘person of complete capacity’ (kanzen no nòryoku-sha), that meant he could not be a minor,
an incompetent or quasi-incompetent person or a wife. Also succession had to be
‘absolutely accepted’ (sòzoku no tanjun shònin) that means the heir had to succeed in
all rights and duties of the head of a house without any reservations (see Inheritance
Law); DeBecker, note 160, at 26–27.
184
Note 6, at 66–70; also see Gubbins, note 1, at XXXII et seq.
185
186
See Ishii, note 9, at 661–662.
187
Art. 725 Meiji Civil Code; relatives were generally divided into four classes:
blood-relations (ketsusoku), quasi-blood-relations ( jun-ketsu-zoku), spouses (haigù-sha), and
relatives by affinity (inzoku). Blood-relations were further divided into lineal relatives
(chokkei-shin) with lineal ascendants (sonzoku-shin) and lineal descendants (hizoku-shin),
and into collateral relations (bòkei-shin). Quasi-blood-relations were relatives who were
not naturally, but legally related by blood, such as step-parents and step-children
or a wife and her husband’s legitimized child (chakubo and shoshi ). Spouses now
included only a married husband and wife, not concubines; see DeBecker, note
160, at 2–3.
188
189
chakubo
190
shoshi, Art. 728 Meiji Civil Code.
civil code
286
5.2. Marriage and Divorce
At no time in Japanese history had marriage been regarded as an
act between two individuals. Rather marriage had always been viewed
as a transaction between two families or ‘houses’, which involved an
individual leaving his or her ‘house’ of origin and entering the spouse’s
‘house’. The Meiji Civil Code, however, finally established the concept
of legal marriage. As in the Old Code the marriage age for men
had been set at 17, for women at 15 years.191 The Meiji Civil Code
also followed the Old Code in the fact that a woman could not
remarry until after six months of the dissolution of a former marriage192 and in the prohibition of the marriage of adulterers, so not
to encourage adultery.193 Moreover, marriage between lineal relatives
as well as between collateral relatives within the third degree and
relatives by affinity was forbidden, as was marriage between adoptive parents or their lineal ascendants and adoptive children and
their lineal descendants or spouses.194
A man younger than 30 and a woman under 25 years of age needed
their parents’ consent to get married, and any person needed the
consent of the head of his or her ‘house’.195
Whereas the Old Code stipulated a marriage taking effect after the
wedding ceremony, such a ceremony had now become legally irrelevant, with Art. 775 I of the Meiji Civil Code stating that a marriage
took effect upon notification to the registrar. In the popular view,
however, a marriage continued to be regarded as concluded by the
performance of a ceremony. This had the effect that after the ceremony had taken place, registration was frequently postponed, thus
creating a ‘trial period’, in which the new member of the ‘house’ had
to prove that he or she fit into that ‘house’ or until an heir had
been born.196
A marriage, for which a wedding ceremony had been held but
the marriage had not been registered, was called naien or ‘informal
marriage’. But besides the aforementioned ‘trial’ function, various other
reasons led to naien relations. If for example the parents or the head
191
192
193
194
195
196
Art. 767 I Meiji Civil Code.
Art. 768 Meiji Civil Code; DeBecker, note 160, at 43.
Watanabe, note 82, at 364.
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287
of a ‘house’ had not consented to the marriage197 or if both partners were heads of a ‘house’, the registration of the marriage was
legally not possible. To give such couples a certain degree of legal
protection, the Japanese courts developed the concept of naien as a
de facto marriage, when a wedding ceremony had been held, but
no formal registration been made.198
As to the effects of marriage, the Meiji Civil Code clearly provided
the legal basis for the husband’s dominant position. Firstly, in compliance with the patriarchical foundations of the ‘house’ system, Art.
788 Meiji Civil Code stated that the wife entered her husband’s
‘house’ upon marriage. An adopted husband entered his wife’s ‘house’.
Upon marriage the husband acquired the right to the possession and
management of his wife’s property and to the enjoyment of rents
and profits,199 although he did not acquire the title to his wife’s property. The husband had the right to choose the family’s place of residence,200 but he also had to bear all expenses of the family.201 Both
partners had the duty to support each other.202
Like the Old Code, the Meiji Civil Code too provided for divorce
either by mutual consent or by judicial decision.203 A divorce by
mutual consent was effected merely by notification, but like in case of
marriage, the consent of certain persons such as parents of spouses
under the age of 25 or the head of a ‘house’ were necessary.204 As
to judicial divorce, Art. 813 of the Meiji Civil Code enumerated the
grounds, on which husband or wife could appeal to the courts as
follows: bigamy, adulterous actions by the wife, criminal punishment
of the husband for adultery, punishment of a spouse for certain
crimes, gross ill-treatment or insult of the spouse or his/her lineal
ascendants, or such behaviour by lineal ascendants against one of
the spouses, desertion, disappearance for more than three years, and
dissolution of the adoption of a mukoyòshi or nyùfu husband.
197
Vide Arts. 750, 772 Meiji Civil Code.
Daishin’in (Great Court of Judicature) 26 January 1915 in Daishin’in Minji
Hanketsu-roku (Minroku) 21; see e.g. Y. Tezuka, note 103, at 46.
199
200
201
202
203
Arts. 808, 813 Meiji Civil Code; for a more detailed study of divorce under
the Meiji Civil Code see Humbert-Droz, note 80, at 110 et seq.
204
Vide Arts. 809–811 Meiji Civil Code.
198
288
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Besides the disadvantages a wife could suffer from a divorce by
mutual agreement, which did not require any judicial control of its
voluntarity or contents, the Code gave custody of the children principally to the father in case of divorce.205 No provisions on the
financial settlement after a divorce existed.
5.3. Parent and Child
As to children, first of all distinctions were made between real children206 and adopted children,207 and further between legitimate children of husband and wife,208 illegitimate children, who had been
acknowledged by their father209 and illegitimate children.210 Furthermore,
parent-child relations were also established by law between stepparent and step-child and between a wife and her husband’s acknowledged illegitimate child.211
Art. 820 of the Meiji Civil Code stated that a child conceived during marriage was legitimate and presumed the legitimacy of a child
who was born within 200 days from the formation of a marriage or
300 days after the dissolution of a marriage. The legitimacy of a child
could be contested by the husband within a year after he had become
aware of the child’s birth, unless he had already recognized it.212
An illegitimate child could be acknowledged by his father or mother.213
Such a recognition was accompanied by important effects, since upon
acknowledgment the child was legitimized,214 and thus able to succeed into the position of head of ‘house’, Art. 835 of the Meiji Civil
Code gave an illegitimate child the right to demand recognition.
The confucian concept of kò (filial piety), which had ruled the
parent-child relationship especially during the Tokugawa period, also
provided the basis for the relevant provisions in the Meiji Civil Code.
A good example here is the necessity of the parents’ consent to mar205
jisshi
207
yòshi
208
chakushutsu-shi
209
shoshi; in colloquial language a shoshi was referred to as shòfuku no ko or ‘child
by a concubine’; DeBecker, note 160, at 86.
210
shisei-shi
211
DeBecker, note 160, at 79.
212
Arts. 822, 824, 825 Meiji Civil Code.
213
214
206
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289
riage for a man until he reached 30 years of age, for a woman until
25. Another good example could be found in the Old Criminal Code
of 1882 where crimes committed against lineal ascendants are more
severely punished as crimes committed against descendants.215 Although
children owed filial piety to both parents, parental power was principally only exercised by the father.216
Adoption217 was still regarded as a corner-stone of Family Law and
necessary as a means to ensure the maintenance of a ‘house’, if no
natural heir existed or was apt to succeed into the headship of a
‘house’.218 “Without it, the continuity of the ‘house’, upon which rested
the perpetuation of ancestor-worship, cannot be maintained. The
practice of adoption has been so common and universal among the
people, from ancient time down to the present day, that Prof. Chamberlain writes ‘It is strange, but true, that you may often go into a
Japanese family and find half-a-dozen persons calling each other parent and child, brother and sister, uncle and nephew, and yet being
really either no blood-relations at all, or else relations in quite different
degrees from those conventionally assumed.’”219
The Meiji Civil Code stipulated the following conditions for an
adoption: the adopting parent had to be mature;220 no ascendant or
person older than the adopter could be adopted;221 if a male child as
legal heir presumptive existed, no other male could be adopted, except
as a husband to a daughter;222 married couples could only adopt
jointly,223 and the adoption of a child under fifteen years of age
required the consent of its parents.224 An heir presumptive to the
headship of a ‘house’ could not be adopted into another ‘house’,
except if he belonged to a branch ‘house’ and was to become the
head of the main ‘house’.225 The adoption of a child who had already
215
Even the current Criminal Code (Keihò, Law No. of 1907) comprises such provisions, and Art. 200, which stipulated aggravated punishment for the killing of
one’s own ascendants, was only abolished in 1995, after having been ruled unconstituional by the Supreme Court in 1973.
216
217
yòshi engumi
218
219
220
221
222
223
224
225
290
civil code
assumed the headship of the ‘house’, could not be dissolved, unless
he abdicated.226
Unlike the Old Code, the Meiji Civil Code did not restrict the
right to adopt to a head of a ‘house’.
Upon adoption the adoptee became a legitimate child of the adoptive parent and entered his ‘house’; the same relationship as between
blood-relatives was established between an adoptee and an adopter
and his blood-relatives.227 As a consequence thereof, the adoptee
acquired the right of succession as well as all rights and duties that
existed between parent and child, such as the duty of mutual support,
the adopter’s right to exercise parental power et cetera.
Like in the Old Code, dissolution of an adoption was possible
either by mutual consent or judicial decision. Whereas a dissolution
by mutual consent228 could be carried out freely, a judicial dissolution
could only be applied for, if one of the grounds similar to those in
case of divorce, enumerated in Art. 866 of the Meiji Civil Code were
given: ill-treatment (cruelty) or gross insult by either party, or by or
of the other party’s lineal ascendants; desertion; disappearance for
three or more years; criminal punishment to one year imprisonment
or more; the adoptee having acted in a way that disgraced the name
of the ‘house’ or endangered the ‘house’ property, or in case of the
dissolution or annulment of the marriage of a mukoyòshi or nyùfu
husband.
As mentioned earlier, during the Meiji period the Japanese family
had a double base of ‘house’ and kinship, with the former one always
taking precedence over the latter.229 Therefore, being based on kinship,
parental power230 was limited by the conception of the ‘house’ and
was recognized only so far as the parent and child belonged to the
same ‘house’.231
Although parental power seemed to be analogous to the rights of
226
Arts. 727, 860, 861 Meiji Civil Code.
228
229
Many Meiji period political leaders and jurists, however, were of the impression that the era of the house had come to an end with the registration of individuals under the Household Register Law of 1898, as in contrast to the previous
Law of 1871, which registered only houses; see Hozumi, note 1, at 41, 44; for a
closer look at the Japanese concepts of ‘house’ or ‘family’ and ‘kinship’ in comparison to the western understanding see Gubbins, note 1, at VI et seq.
230
shinken
231
Art. 877 I; Hozumi, note 6, at 44–45.
227
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291
the headship of a ‘house’, there was a clear legal distinction between
these two institutions. Whereas the rights of the head of a ‘house’
had as their object the control and management of the ‘house’, and
while their validity affected the interest of all members of a ‘house’,
parental power had as its object the protection of the child, and its
effect was exercised on the person and property of the child.232
Parental power meant first of all that the parent had the right and
duty to take care of and to educate the minor child.233 Other provisions of the Meiji Civil Code provided for the parent’s right to
determine the child’s place of residence234 and to permit the child’s
enlistment into military service,235 to disciplinarily punish the child,236 to
permit the child to carry out an occupation,237 and to manage the
child’s property and represent it in juristic acts.238 If a mother held
parental power, she needed the Family Council’s consent in several
cases of exercising parental power.239 Furthermore, a parent exercised a minor’s rights as head of a ‘house’, his parental power, and
represented a minor husband’s right to manage his wife’s property.240
Parental power was lost, if it was abused, or if the holder of parental
power was guilty of flagrant misconduct.241 The former cause was interpreted as, for instance, the application of excessive corrective measures
or the protection or education in an improper way and the like; the
latter one was seen as given, if, for example, a widow who held parental
power, led an immoral life.242 Parental power could also be lost,
when its holder endangered the child’s property by mismanagement.243
Guardianship244 was established, when either no one existed to exercise parental power over a minor child or when a person had been
232
233
234
235
236
237
238
239
240
241
242
243
244
DeBecker, note 160, at 124–125.
Art. 88l Meiji Civil Code.
kaiken
292
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judged incompetent.245 Guardianship was defined as the right and
duty of protecting and guarding the person and estate of such persons.
A guardian could be designated by the holder of parental power. If
no such designation had been made, a parent or spouse, or, if not
existing, the head of a ‘house’ was to become guardian.246 If none of
the aforementioned persons could become guardian, one was appointed
by the Family Council.247 Rights and duties of the guardian were
quite similar to parental power.248
As mentioned before, the Family Council was a formal institution
with the task of determining a guardian, if no such person had been
found otherwise. A Family Council consisted of at least three family
or ‘house’ members, and was convened, for instance, when the head
of a ‘house’ was legally incapacitated or was unable to exercise the
rights and duties of his position, or when a minor or incompetent
person was not subject to parental power. In such cases the Family
Council had to deliberate and decide on appropriate measures to
avoid threats for the ‘house’.249
The duty of support250 fell first of all to the head of a ‘house’
for its members.251 Since the head of a ‘house’ principally acquired
almost all property of the ‘house’, it seemed only reasonable that he
supported its members.252 Art. 790 of the Meiji Civil Code obliged
a husband and wife to support each other, and a duty of mutual
support also existed between lineal blood-relatives and siblings as
well as between a husband or wife and his or her spouse’s lineal
ascendants, who belonged to the same ‘house’.253
Such duty, however, existed only, when the person entitled to support had no way to make his living on his own, and when, in case
of siblings, this was not due to their own fault.254
245
247
248
249
Vide Art. 945 Meiji Civil Code; DeBecker, note 160, at 180; also see Gubbins,
note 1, at XXXVI et seq.
250
fuyò no gimu
251
252
253
254
246
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293
6. Prewar development
As is generally known,255 the ‘house’ system was not merely the basis
for family relations and Family and Inheritance Law, but served as
the basis for the social, economic and political system in prewar and
wartime Japan. Due to the close relation between the ‘house’- and
the state-system the family was affected by political and social changes
as well. Consequently, during the rise of a popular movement during the 1920s many critics of the political system became aware of
the incompatibility of democracy and the ‘house’ system. This awareness led to growing calls for reform, supported by voices which
pointed to the frequent abuse of the rights of a househead. Conservative
forces, including the nations’ leaders, however, feared the destruction
of the system as a possible danger for the state system, the kokutai.
To protect the kokutai, they initiated a reactionary course with the
demand of the tightening of provisions to preserve Japan’s ‘good
ways and beautiful customs’.256 Supported by a memorandum of the
Temporary Conference on Education’257 on contradictions between
law and reality, dated 1919, the Japanese Government in the same
year established the Temporary Council on the Legal System’258
whose task was to investigate a revision of the Civil Code.259
As a result of the committee’s deliberations, in 1925 and 1927 the
‘Outline of a Reform of the Civil Code was published’,260 comprising
34 points in the Code’s book on Family and 17 in the book on
Succession, which needed to be revised.261 Examples for these recommendations were, besides the general improvement of the spouse’s
(wife’s) position, the weakening of the position of the heir to the headship of a ‘house’. Furthermore, the protection of a de facto (naien)
wife by effecting a marriage upon the commencement of a ceremony
255
P. Schmidt, Die Reform des Japanischen Erbrechts nach dem Zweiten Weitkrieg
[Revision of Japanese Inheritance Law after World War II] (Köln . . . 1993) 11
et seq.
256
M. Aoyama, Meiji minpò igo no sòzokuhò (Law of Succession since the Meiji Civil
Code) (Tòkyò 1974) 163.
257
Rinji kyòiku kaigi
258
Rinji hòsei shingi-kai
259
260
Minpò kaisei yòkò
261
S. Wagatsuma, Minpò to gojùnen—sono 2—zuisò shui (Fifty Years with the Civil
Code, Part 2: Sketches) (Tòkyò 1976) 102; K. Bai/N. Toshitani, Jinji hòan no kisò
kaitei to sono gaiyò: E. Hoshino [ed.], Shihògaku no aratana tenkai (New Developments
in Civil Legal Science) 471 (Tòkyò 1975).
294
civil code
instead of registration, and the repealing of the provisions on the
wife’s legal incapacity were proposed, and so was the right of a female
head of a ‘house’ to retain her position even after marriage. The
adoption of minors, the ‘Outline’ advised, should be possible only
with consent of a court, and an heir to the position of head of a
‘house’ should only succeed into such property as essential for the
preservation of the ‘house’, with the remaining property being distributed among other successors, including spouse, younger sons and
daughters. A legitimate child, irrespective of sex, should always take
precedence over an illegitimate child, and the share of inheritance
of non-members of a ‘house’ should be reduced to half of the share
of ‘house’ members in case of succession to property. Furthermore,
the ‘Outline’ proposed that the spouse be successor in the same rank
as lineal descendants, and that the legal shares be raised to twothirds if spouse and lineal descendants were the heirs, and to one
half, if the spouse was the only heir, and in case of failure of heirs
siblings should have precedence over the head of ‘house’.262
With this outline as a basis, the commission commenced work on
a draft revision in January 1929. After fourteen years of intensive
deliberations, this draft was only completed in 1943. It constituted
a compromise between the conservative government’s prerequisites
and the wishes of the people. Under the ultra-reactionary ideology
of wartime Japan this draft, however, had no hope of becoming law,
since it was generally too individualistic and democratic in its outlook. All further efforts for a revision of the Code came to a halt
with Japan’s defeat in the Second World War.263
7. Postwar Reforms 264
In Article 10 of the Potsdam Declaration of 26 July, 1945, the United
States, Great Britain and China (the USSR joining on 9 August)
demanded: “. . . The Japanese Government shall remove all obstacles
to the revival and strengthening of democratic tendencies among the
Japanese people. Freedom of speech, of religion, and of thought, as
262
Schmidt, note 254, at 13.
Schmidt, note 254, at 13–14.
264
For details see S. Wagatsuma [ed.], Sengo ni okeru minpò kaisei no keika (The
Course of the Postwar Reform of the Civil Code) (Tòkyò 1989).
263
family law
295
well as respect for the fundamental human rights, shall be established.”
Japan accepted the Potsdam Declaration on 14 August, 1945, and the
War ended with Japan signing the Instrument of Capitulation on 2
September, necessitating thorough changes in the nation’s political
and social structure to fulfill the demands of the Allied Powers.
One of the primary aims of the Occupation was the democratization of Japan, which realization made fundamental reforms of the
legal system inevitable. One of the first undertakings in this field was
the compilation of a new constitution, which was promulgated on 3
October, 1946 and enforced from 3 May, 1947.265
According to Art. 98 of the Constitution, no laws, ordinances etc.
contrary to the provisions of the Constitution were to have legal force
or validity.
Besides the general principle of equality in Art. 14 I of the Constitution,266 Art. 24 in particular provided for equality in family relations: “I. 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. II. With regard
to choice of spouse, property rights, inheritance, choice of domicile,
divorce and other matters pertaining to marriage and the family,
laws shall be enacted from the standpoint of individual dignity and
the essential equality of the sexes.”267
In combination with the aforementioned Art. 98, the principles
established by Arts. 14 and 24 of the Japanese Constitution raised the
question, whether the ‘house’ system was constitutional and if it had
to be abolished or not. But although preparations for an amendment to the Civil Code had started in the ‘Temporary Council on
the Legal System’ almost simultaneously with the drafting of the new
Constitution, the Japanese Government showed no clear policy as
to the implications of the constitutional changes for the ‘house’ or
family system.
Due to the fact that the General Headquarters (GHQ ) had been
strained with the revisions of other important laws and because of
lengthy discussions in the committees and sub-committees, it had
265
English translation cf. D.F. Henderson [ed.], The Constitution of Japan—Its
First Twenty Years, 1947–67 (Seattle & London 1968).
266
Art. 14 I of the Japanese Constitution reads: “All of the people are equal
under the law and there shall be no discrimination in political, economic or social
relations because of race, creed, sex, socal status or family religion.”
267
At 305.
296
civil code
soon become obvious that it would not be practicable to enforce an
amendment of the Civil Code at the same time as the new Constitution.
But since the Japanese Supreme Court was expected to rule a great
number of family- and succession-related provisions of the Meiji Civil
Code as contradictory to the principles of the Constitution, the ‘Law
Concerning Temporary Adjustments of the Civil Code Pursuant to
the Enforcement of the Constitution of Japan’268 was drafted and
went into force on 3 May, 1947. Although this law consisted of merely
ten provisions, it comprised all the important aspects of the amendment of the Civil Code, such as the repeal of the wife’s legal incapacity, the repeal of all legal provisions concerning ‘house’ and family,
the abolition of succession to a ‘house’ or the spouse’s principal right
to succession.
As was to be expected, soon after the discussions on an amendment
had begun, the question was raised, as to whether the ‘house’ system
was compatible with the principles and values of the new Constitution.
The vast authority bestowed on the head of a ‘house’ or the discrimination of women hardly seemed to be compatible with the constitutional principles materialized in Arts. 14 and 24, and moreover,
the application of the ‘house’ system and the principle of filial piety
as the basis of the nation’s prewar absolutist Tennò-system convinced
many that the whole system had to be abolished.269
Heated debates were initiated by the advocates of the ‘house’ system as early as summer 1946. At the ninetieth session of the Imperial
Diet, which adopted the new Constitution, those, who wanted to preserve the ‘house’, attempted to overthrow Art. 24 of the Constitution
especially. They argued that this provision would inevitably lead to
the collapse of Japanese society, since the ‘house’ system and the
state system were to structure the social and political system ‘like
two wheels’, thus interpreting Art. 24 of the Constitution as an attack
against the state itself.270 Opposition was especially fierce in the Upper
House, where the purpose of Art. 24 was seen as a sell-out of the
268
Nihon koku-kenpò no shikò ni tomonau òkyù-teki sochi ni kansuru hòritsu, Law. No. 74
of 1947; for an English translation see K. Steiner, Postwar Changes in the Japanese
Civil Code: 25–3 Washington Law Review and State Bar Journal (1950) 286, 294
et seq.
269
N. Nishimura, Sengo Nihon kazokuhò no minshuka—jakkan no kaisò (Postwar
Democratization of Japan’s Family Law—Some Reminicences), 29 Hòshakaigaku
129, 131 et seq (1976).
270
L.H. Redford [ed.], The Occupation of Japan: Impact of Legal Reform
(Norfolg 1977) 127.
family law
297
family system and all its values, causing the members of the House
to demand the inclusion of a passage that should read ‘cohabitation
of the family shall be supported’. This proposal, however, failed to
receive sufficient support to pass.271 In the Lower House it was repeatedly argued that Art. 24 would shatter the foundations of the rights
of head of at ‘house’ and parents, and therefore strongly affect filial
piety as the basis of all morality.272 Thus Prime Minister Yoshida
Shigeru could calm those fears by declaring in the Lower House:
“[The new Constitution] does not negate such things as the rights
of the head of the ‘house’, the family, or inheritance . . . Japan’s
inheritance of the ‘house’ headship, etc., is one of the ‘good ways
and beautiful customs’ peculiar to Japan. There is no particular provision on this point [in the Constitution].”273 Since the Prime Minister
saw no contradiction between the ‘house’ system and the principles
of the new Constitution, it was hardly to be expected that conservative
politicians would comprehend the necessity to change the system.
The Minister of Justice, too, publicly stressed that although the ‘house’
system had to be erased from the Constitution, it nevertheless should
continue on the level of the Civil Law.274
But the ‘house’ system was widely regarded by legal scholars as
a major hindrance to social progress and already in a state of collapse. Hence the committees in charge of the amendment strongly
supported a revision of the Civil Code which would abolish the ‘house’
system. The first sign that the drafters of the revised Code were not
willing to compromise or adopt the interpretations of the Prime
Minister and the Minister of Justice, was the pamphlet ‘All Problems
Regarding a Reform of the Books on Family Law and Succession of
the Civil Code, which have to be Considered Carefully’,275 composed
by the director of the Justice Ministry’s Bureau of Civil Affairs,276 where
the dissolution of the ‘house’ system was strongly recommended.277
271
S. Wagatsuma, Guarantee of Fundamental Human Rights under the Japanese
Constitution, 26–2 Washington Law Review and State Bar Journal, 145, 147 (1951).
272
K. Steiner, The Revision of the Civil Code of Japan: Provisions affecting the
Family, 9–2 The Far Eastern Quarterly 169, 173 (1950).
273
274
J. Murakami, Einführung in die Grundlagen des japanischen Rechts (Introduction
to the Basics of Japanese Law) (Darmstadt 1974) 102 et seq.
275
Minpò shinzoku-hen oyobi sòzoku-hen no kaisei ni tsuki kòryo subeki sho-mondai.
276
Hòmu-shò minji-kyoku
277
Wagatsuma, note 263, at 12; for a German translation see Schmidt, note
254, at 161.
298
civil code
Based on these principles, guidelines for a reform were drafted, thus
giving the signal for a heated debate between the advocates of the
‘house’ system and its opponents. Whereas the former group repeated
the often-heard fears of the destruction of the social system and its
values in case of an abolition of the ‘house’ system, the latter ones
viewed this system as an obstacle to real democratization.278 When
prominent jurists on the committee like Nakagawa Zennosuke and
Wagatsuma Sakae threatened to halt their efforts to reform the Civil
Code, unless the ‘house’ system was completely abolished, Justice
Minister Kimura all of a sudden changed his attitude. On 28 August,
1946 he even stressed eventually in a speech before the Lower House
the necessity of an abolition for the realization of the constitutional
principles. The family system in a good sense and the custom of
worshipping the ancestors, he declared, were nevertheless to be preserved.279 Heated arguments continued, however, until Wagatsuma
succeeded in convincing the opponents of an abolition of the ‘house’
system that the Meiji Civil Code’s provisions had only meant as a
consolidation of the rights of a head of ‘house’, which had to be
abolished because of its frequent abuse. On the level of morality,
however, the ‘house’ system should be preserved as one of Japan’s
‘good ways and beautiful customs’.280 Many critics of firm democratic conviction opposed this compromise, and demanded that not
only the ‘house’ be abolished as a legal institution but also that steps
be actually taken to eliminate it from social life. The strength of the
opposition against such measures made such an aim impossible to
achieve, however, and in the end the concessions obtained were welcomed by all concerned, including the more radical reformers.281 The
argument of the ‘house’ system violating the Constitution’s principle
of equality eventually was the decisive factor, and the revised Code,
stripped off all provisions on the ‘house’ system, passed the Diet,
was promulgated on 22 December 1947 as Law No. 222 and enforced
on 1 January 1948.282
278
Y. Watanabe, Kazoku to hò (The Family and the Law) (Tòkyò 1973) 42.
Wagatsuma, note 263, at 15–16.
280
Wagatsuma, note 263, at 42.
281
282
The drafters oriented their work to a certain degree on American law, leeding Y. Kawashima (Americanization of Japanese Family Law, 1945–1975: 15 Law
in Japan 54 (1982) to the suggestion of a thorough adoption of American law. Also
see: Schmidt, note 254, at 31–32.
279
family law
299
The Code has been amended several times since, with especially
meaningful revisions in 1962, 1980 and 1987.283
8. Current Family Law
In contrast to the Meiji Civil Code the revised Code is based on the
concept of the individual, with the family consisting of parents and
their minor children. The wife has now complete legal capacity, and
all discrimination and inequality between husband and wife and
among children has been abolished on the legal level.284
8.1. Marriage & Divorce
Under the present law, marriage is solely based on the agreement
of the parties and becomes effective by notification, made by both
parties and at least two witnesses in accordance with the ‘Law of
Family Registration’.285 The legal age for marriage is 18 for men
and 16 for women,286 although minors under 20 years of age need the
consent of at least one parent.287 Plural marriage and marriage between
close relatives by blood or collateral relatives by blood are prohibited.288
Husband and wife have to agree on a common family name.289
After the death of one spouse or the dissolution of a marriage the
previous surname can be reassumed.290 As to mutual obligations of
a married couple, Art. 752 of the Civil Code bestows on them the—
not enforcable—duty of cohabitation and to support each other. The
provisions on the matrimonial property system291 allow a couple to
283
Details of these reforms will be discussed in the relevant chapters below and
in the essay on Law of Succession.
284
One exception to this principle is the discrimination of illegitimate children
in the field of inheritance; see ‘Law of Succession’.
285
Koseki-hò, Law No. 224/1947; vide Art. 739 Civil Code.
286
Art. 731 Civil Code; currently (1996) a reform is under way to raise a woman’s
marriage age also to 18 years; see Japan Times 28 February 1996 at 1.
287
Art. 727 Civil Code.
288
Arts. 732, 734 Civil Code.
289
Art. 750 Civil Code; since in 98% of all marriages the couple assumes the
husband’s family name, strong criticism has lately been voiced because of the diadavante the change of the name might cause in the workplace, urging a reform;
see Japan Times 28 February 1996 at 1.
290
291
Arts. 755–762 Civil Code.
300
civil code
conclude a contract. However, in most of the cases the legal property
system is applied, with the property of a married couple belonging
separately to the spouses, unless ownership cannot be determined.292
The naien relation, a kind of test-marriage which was not uncommon before the war, is not dealt with in the postwar code, since
this institution was expected to die out soon. A certain degree of
protection of a naien spouse, however, is taken care of in a number
of special legislations.293
Japanese law knows three types of dissolution of a marriage: upon
agreement by the parties, by conciliation or by a court judgment.
If the couple agrees to end the marriage, they simply have to register
their divorce.294 If, however, they cannot agree, they have to apply for
conciliation with the Family Court before suing for divorce. If the
parties come to an agreement during conciliation, the committee’s
decision has the same effect as a formal judgment. The last available
option is divorce by a court judgment. Art. 700 I of the Civil Code
enumerates five grounds for a judicial divorce: unchasity, malicious
desertion, disappearance for more than three years, severe mental
illness or other grave reasons, which make the continuation of a
marriage impossible. The latter reason is defined as an irretrievable
breakdown of the marriage. A court, however, can dismiss an action
for divorce even when one of the aforementioned reasons is given,
if it deems the continuance of the marriage proper in view of all
circumstances.295 Especially noteworthy about the handling of divorce
292
Despite increasing calls for a reform of the matrimonial property system, no
amendment had been made on the occassion of a broad reform of the Code in
1980, although at the time the spouse’s share of succession had been increased; see
‘Law of Succession’.
293
K. Igarashi, Einführung in das japanische Recht (Introduction to Japanese
Law) (Darmstadt 1990) 120 et seq.; such legislations are for instance: Workmen’s
Accident Compensation Insurance Law, Law No. 50 of 1947 Art. 151, English
translation in MINISTRY OF LABOUR, “Japan Labour Legislation” 365 (1959);
Workmen’s Accident Compensation Insurance Enforcement Regulations, Ministry
of Labour Order No. 22 of 1955, Art. 16 I, English translation in LABOUR LEGISLATION 381: Labour Standards Law 49/1947 Art. 79; English translation in
Labour Legislation 381; Labour Standards Law Enforcement Regulations, Ministry
of Welfare Order No. 23/1947 Art. 42, English translation Labour Legislation 233;
Welfare Annuity Insurance Law 115/1954 Art. 63 I b; National Annuity Law 141/
1959 Art. 5 c etc.
294
295
Art. 700 II Civil Code; one example herefor is the Supreme Court’s judgment of 25 July, 1958 (Saikò saibansho minji hanreishù (Minshù) 12–12–1823) in
a case, when the spouse who sought a divorce for his partner’s mental illness, had
not provided for the other spouse’s support after a divorce.
family law
301
cases is that the courts originally limited the right to sue for a divorce
to the spouse who did not cause the break-up of the marriage. Only
in 1987 the Supreme Court296 granted a divorce to a man who had
left his wife to live with another woman. The Court set up as prerequisites for such cases a sufficiently long period of separation, no
existence of children under the age of 20 and the absence of special
circumstances which would make it unjust if the party responsible for
the break-up seeks a divorce.
As to the effects of a divorce, Art. 768 Civil Code grants the right
to demand a distribution of property, and Art. 766 Civil Code states
that the couple should agree on the custody of children, or, if such
agreement cannot be reached, the Family Court decides. If the couple lived in a naien relationship, the courts have repeatedly granted
compensation to the deserted partner.297
8.2. Parents and Children
According to Art. 772 I of the Civil Code, a child, conceived by a
wife during marriage, is presumed legitimate. A child, born after 200
days of the formation of a marriage or within 300 days of its dissolution is presumed to have been conceived during marriage.298 This
presumption can only be reversed by the—presumed—father bringing an action of denial.299
A child who is not legitimate can be legitimized by either one of
its parents,300 thus obtaining the same rights as a legitimate child.
As to adoption, Arts. 792 and 793 of the Civil Code stipulate that
an adopter has to be at least 20 years of age, that the adoptee must
be younger than the adopter and must not be an ascendant of the
adopter, and that married couples have to adopt jointly.301 If the
adoptee is a minor, approvement of the Family Court is necessary.302
If the adoptee is younger than 15 years, the child’s legal representative
can assent to the adoption on behalf of the child.303 Since this system
of adoption is widely regarded as a legacy of the old ‘house’ system’s
296
297
298
299
300
301
302
303
Judgment of 2 September 1987, in Minshù 41–6–1423.
See e.g. Great Court of Judicature 26 Jan. 1915 (Minroku 21–49).
Art. 772 II Civil Code.
Arts. 774, 775, 777 Civil Code.
civil code
302
way of securing continuance, instead of an instrument for the welfare
of the child, and since an adoptive child used to be registered as such,
a second system, the so-called ‘special adoption’ was introduced into
the Civil Code in 1987.304 The child has to be younger than six years
and has to have lived with the adoptive parents for a trial period
of at least six months. If then the Family Court approves of the
adoption, the child can be registered as a natural child. And whereas a
normal adoption can be dissolved upon agreement,305 a dissolution of
a special adoption is permitted only under certain circumstances.
The provisions on parental power hardly differ from those in the
Meiji Civil Code. Minors are subject to their parents’ parental power,
now exercised jointly by father and mother, while they are married.306
The parents can designate the child’s place of residence307 and their
permission is necessary if the child wants to carry out an occupation.308 According to Art. 826 Civil Code, the parents furthermore
manage the child’s property, although in case of conflict of interests
a special representative is appointed by the Family Court. Parental
rights can be forfeited in case of abuse or gross misconduct.309
Guardianship commences if there is no one to exercise parental
power over a minor or if an adjudication of incompetency has been
made.310 Unless the person who last held parental power had designated
a guardian over a minor or if there is no spouse to become guardian of
an incompetent adult, a guardian is appointed by the Family Court.311
Rights and duties of a guardian are similar to those of parents.
Lineal relatives by blood and siblings have the duty to support
each other, and under special circumstances the Family Court can
extend this duty to other relatives within the third degree.312 However,
there are no provisions concerning the order of persons under duty or
304
305
306
307
308
309
310
311
312
Arts. 817 a–j Civil Code.
Vide Arts. 811–817 Civil Code.
family law
303
receiving support or about kind and volume of support. If no agreement
can be reached, the details will be determined by the Family Court.313
9. Conclusion
The Meiji Restoration forced Japan not merely to open up to the
outside world, but moreover, forced her to undertake a fundamental
modernization in all aspects of social, political, and economic life. Its
legal system was thoroughly westernized, but as one way to combine
western learning with eastern ways, the traditional ‘house’ system
was preserved, with the Meiji Civil Code’s books on Family Law and
Succession being conservative to the extent of solely serving the purpose of maintaining and perpetuating the ‘house’.
The question needs to be answered, whether the postwar Code
completely broke with the past. On a first glance it might seem so,
since the legal statutes are based on fundamentally different principles, in reality, however, the situation had gradually begun to change
from the period of ‘Taishò democracy’ in the 1920s, as could be seen
in the rather liberal and democratic draft of 1943. This lead one of
Japan’s most famous jurists, Wagatsuma Sakae, to say that although
the revised Code had been ‘a bold leap’, it had been ‘in the direction of the revision which we had already been trying to effect for
ourselves during the past fifty years’.314 Conservative forces in Japan,
however, took a long time to come to terms with the dissolution of
the ‘house’. After Japan regained sovereignty in 1952, a campaign
for the revival of the ‘house’ and its ‘good ways and beautiful customs’ was started. Kishi Nobusuke, wartime leader and postwar
Prime Minister, said in 1954: ‘Since the current Civil Code does not
comprise the ‘house’, the family has lost the concept of the ‘house’.
Nobody worships the ancestors anymore, to stress the importance of
one’s descent and to pass it on to the descendants. Can one cling
to individualism, although marriage is the union of husband and
wife? It is often said that children don’t have to care for their parents’ welfare anymore. Old people should go to homes. But is this
the proper Japanese way? It seems to me absolutely necessary to
establish a form of existence of the ‘house’, which does justice to
313
314
Kawashima, note 281, at 57.
304
civil code
Japanese tradition and customs. Only on the spiritual foundation of
such a ‘house’ can a state be built, which will be able to count in
the world.’315 The advocats of the ‘house’s revival, however, immediately faced strong opposition, especially from youth and women’s
organizations, eventually causing them to retreat in the late 1950s,
when it had become clear that their strongholds in the agricultural
regions were gradually being lost due to Japan’s rapid individualism
and urbanization, which furthermore led to a general trend of individualization and a growing awareness of individual rights.316
Clearly today, hardly any traces of the ‘house’ can be found in
Japan, and there is no doubt that the law has been thoroughly
democratized.317 It seems to have taken reality a considerable time
to catch up with the letter of the law in a development process characterized by the mutual influence of law on reality and reality on
the law. Various postwar reforms and judicial developments have
reflected the growing awareness of the Japanese people of their rights,
in turn originally instigated by the 1948 reform. Whether the Japanese
family today can be considered democratized as in the terms of the
law, remains a different issue.
315
Murakami, note 273, at 105.
Kawashima, note 281, at 58–59.
317
Although some provisions still are reminiscent of the old ‘house’ system, such
as Art. 897 Civil Code on the succession in genealogical records etc., Art. 767 I
Civil Code on resuming a prior surname, Art. 730 Civil Code on the duty of support as well various provisions of the Law of Family Registration.
316
law of succession
3.5
305
Law of Succession1
Petra Schmidt
1. Introduction
Since the Tokugawa period (1600–1868) the smallest unit in Japanese
society was the ‘house’ (ie),2 comprising the head of a ‘house’ and
his family. But the ‘house’ was more than a temporary institution for
the living, since it was believed to be an eternal line, linking the
ancestors with generations to come by blood lineage, guaranteeing
the continuance through succession in the patrilineal line.
Upon the head of the ‘house’, vast authorities were bestowed,
which were passed on to his heir upon commencement of succession.
This meant that all rights belonging to the head of the ‘house’ such
as the continuation of the ‘house’name,3 the administration of the
‘house’altar and the seal of the ‘house’, passed on to the successor.
However, not only rights, but numerous duties as well were bestowed
upon the head of a ‘house’, whom confucian doctrine expected to
further the glory and wealth of his ‘house’.
The economic foundation of the samurai ‘house’ in the Tokugawa
period had been the tenure granted to the head of a ‘house’ by his
feudal lord. If the head of a ‘house’ passed away, his heir also succeeded into his position, but legally the succession into the fief was
regarded as re-enfeoffing, requiring the consent of the feudal lord. It
was only from 1615 that the ‘100 Laws of leyasu’4 stated ‘The eldest
son shall be the heir’.5
1
For a detailed study of Japanese inheritance law see P. Schmidt, Die Entwicklung
des japanischen Erbrechts nach dem Zweiten Weltkrieg [ The Development of
Japanese Inheritance Law after World War II] (Köln . . . 1993).
2
For further details on the ‘house’ see ‘Family Law’.
3
kamei; during the Tokugawa period, only the samurai had the right to bear a
‘house’ name, which was the outward symbol of the eternal line of all previous,
current and future members of the ‘house’.
4
The ‘100 Laws of leaysu’ for a long time were regarded as the will of Tokugawa
leyasu, the first Tokugawa Shògun. Today, however, they are rather seen as an eighteenth century forgery, probably under the reign of Shògun Yoshimune (1716–1745);
see G.v. Otto, Geschichte des Japanischen Strafrechts [History of Japanese Criminal
Law] (Leipzig 1913) 60–61.
5
A. Böx, Das japanische Familiensystem [The Japanese Family System] (Marburg
1940) 48.
306
civil code
If no male heir existed, the fief was taken away from the ‘house’,
inevitably leading the whole family into poverty, making the men
masterless samurai.6 To avoid such a fate, it was common to adopt
a son, even if a ‘house’ had daughters, since daughters were expected
to leave their ‘house’ of origin upon marriage. Although frowned
upon by the samurai, it was also not uncommon among commoners
to adopt the husband of a ‘house’-daughter and confer her right of
succession on him.7
In the early stages of the Tokugawa period, material property was
divided among the family members, but at least among the samurai
this custom was abandoned at the end of the seventeenth century
to prevent excessive splitting and thus an economic ruin of the ‘house’.
The more conservative commoners, however, retained a variety of
institutions, which the samurai had discarded. One such institution
was the distinction between succession to the headship of a ‘house’
and succession to property. This tradition was upheld until increasing pauperization during the Tokugawa period forced at least most
of the farmers to establish only one heir per ‘house’.8 Although among
samurai principally the eldest son was heir, a variety of customs was
used among the commoners, for instance besides primogeniture, ultimogeniture, succession of the eldest child irrespective of sex, or succession of the most talented child to continue a family vocation.9
2. Law of Succession in the early Meiji Period
As has been explained elsewhere,10 the leaders of Meiji Japan wished
to repeal the so-called unequal treaties, which Japan had concluded
with several Western Powers at the end of the Tokugawa period. One
of the most important prerequisites to realize this aim was a fundamental modernization of Japan’s legal system. Among the first
steps to be made in this field, was the compilation of a Civil Code.11
6
rònin; Böx, note 5, at 48.
T. Maeda, Ane katoku [Succession by the Eldest Daughter] (Osaka 1976) 1.
8
Since divided succession into property threatened the livelihood especially of
farmers, the Shogunate in 1673 prohibited the division of land of less than one
hectare upon succession. R. Ishii, Nihon hòseishi gaiyò (Outline of the History of
Japanese Law) (Tòkyò 1989) 194; see also C. Steenstrup, A History of Law in
Japan until 1868 (Leiden . . . 1991) 134.
9
Maeda, note 7, at 1.
10
See ‘Family Law’ 2.
11
For further details see ‘Family Law’ 2.
7
law of succession
307
As to succession in the early Meiji period, the existing custom of distinguishing between succession to the headship of a ‘house’ and succession into property was continued.
2.1. Succession to the Headship of a ‘house’
As had been the case during the Tokugawa period, samurai as well
as commoners’ ‘houses’ consisted of a househead, his spouse, their
lineal descendants and certain other relatives, with the head of a
‘house’ holding a vast number of rights and duties.
Initially, the succession into the position of a head of a ‘house’ was
opened not only upon death, but succession inter vivos was common
for a variety of reasons, such as abdication or disappearance of the
head of ‘house’, his expulsion from the ‘house’, abolition of the ‘house’,
dissolution of the adoption of an adopted head, marriage or adoption of a son by a female househead or divorce by such a head of
a ‘house’.12
Abdication,13 widely practiced throughout Japanese history, was
unrestricted for commoners in the early Meiji period. However, in
case of a samurai ‘house’ abdication was, according to Great Council
of State Decrees Nos. 171 and 172, only permissible, if the head
was at least 50 years old or disabled, although the latter prerequisite was interpreted rather broadly.14 A female head of a ‘house’
could retire anytime, and was obliged to retire upon marriage,15
adoption of a son, or an infant heir reaching maturity.16 Also a minor
head did take precedence over the adopted husband of his mother
and over an adopted heir.17 If a househead suffered for example
from severe mental illness, he could be forced to abdicate upon a
resolution by the family council and a court order.18
12
H. Otake/H. Maki, Nihon hòsei-shi [History of Japanese Law] (Tokyo 1987)
255; see also ‘Family Law’ 3.1.
13
inkyo
14
See ‘Family Law’ 3.1.
15
So-called nyùfu: the position of a female head of house being passed on to her
husband.
16
This was stipulated in the ‘Hereditary Property Law for Peers’ (Ka-shizoku katoku
sòzoku-hò. Decree No. 28 of 1872); Otake/Maki, note 12, at 250.
17
Great Council of State Decree No. 58 of 1875.
18
Other reasons for forced abdication were the disappearance of a househead
for at least two years, or if he had been punished for a crime with imprisonment
for at least one year; see Otake/Maki, note 12, at 250.
308
civil code
In principle only a male could become head of a ‘house’, although
the Great Council of State19 decreed in 1873 that in special circumstances a woman could temporarily assume the headship of a ‘house’.20
The principle of primogeniture had already been incorporated in the
‘Outline of the New Criminal Law’21 of 1870, according to which
the eldest son had to be the heir. No other child of a wife or
concubine could succeed into the headship of a ‘house’. But to
determine who exactly was to become the heir,22 a ranking among
the children of wife or concubines, among sons and daughters and
illegitimate children had to be established.23 Principally legitimate
children of a wife24—regardless of their sex—had priority over children of a concubine,25 even before sons. From 1881 the head of a
‘house’ could designate a son of a concubine as his successor if he
had no legitimate sons, even if he had daughters with his wife. A
natural child could succeed into the position of head of a ‘house’,
if this position was held by his mother.26
The ‘Outline of the New Criminal Laws’ forbade any designation
of another person as heir, unless the head of a ‘house’ was at least
70 years of age, if no legal heir existed, or if the heir was terminally ill. Only then was a head of a ‘house’ permitted to acknowledge an illegitimate child to secure succession to the headship and
continuity of the ‘house’.27 The ‘Hereditary Property Law for Peers’28
of 1872, however, stated in its first chapter that a head of a ‘house’
to be succeeded could freely appoint an heir. Because of the obvious contradiction of these legal provisions, the Great Council of State
decreed in July 187329 the absolute priority of legitimate children
19
Dajòkan
H. Maki/T. Fujihara, Nihon hòsei-shi [History of Japanese Law] (Tokyo 1993) 276.
21
Shinritsu Kòryò, Great Council of State Decree No. 94 of 1870; in effect until
the enforcement of the Old Criminal Code (Kyù-keihò, Law No.) in 1882.
22
atotsugi
23
Like in the Tokugawa period, distinction was made between legitimate children
(chakushi ), illegitimate children (seishi ) and recognized illegitimate children (shoshi ),
Children of an unknown father or unrecognized children were called ‘natural children’ (shisei-shi ).
24
chakushutsu-shi
25
shoshi
26
S. Ninomiya, Hi-chakushutsu-shi sabetsu wa kuzureta [ The Discrimination of
Illegitimate Children is Ended]: 465 Hògaku Seminaa 53, 54 (1993); for further
details see ‘Family Law’ 3.3.
27
See also ‘Family Law’ 3.3.
28
Ka-shizoku katoku sòzoku-ho; Great Council of State Decree 28 of 1872.
29
Decree No. 263.
20
law of succession
309
and moreover, added a provision on the commencement of succession upon the marriage of an heiress.30
But the Great Council of State also created and maintained some
loopholes for samurai families,31 allowing a head of a ‘house’ to
designate another son as heir, if the eldest son was dead, incurably
ill or if other ‘imperative reasons’ such as irresponsibility or irrationality, endangering the maintenance of the ‘house’, apparent symptoms of insanity or loss of speech by nervous disorder, existed. If
such a son was the only child, a blood relative could be chosen as
heir. If a ‘house’ had only female offsprings, a daughter could assume
the position as head of a ‘house’ until a suitable husband was found
to take over the headship.32
Given the utmost importance of the continuance of a ‘house’ under
a male head, adoption had been used as a means of securing succession
and maintenance of the ‘house’ all throughout Japanese history. If
a ‘house’ had no heir, it was common, and from 1870 on, legally
permitted for the nobility and samurai, to adopt a son. The ‘Hereditary
Property Law for Peers’ furthermore allowed poor ‘houses’ with only
infant children to adopt.33 Commoners had to notify the authorities
according to the ‘Household Register Law’ of 1871.34 From 1873
onwards, it became allowed to adopt a person belonging to a different
class. An adoptee principally had to be a blood relation, but the
adoption of ascendants, siblings or their spouses, heads of other
‘houses’, heirs, adopted children of other ‘houses’, or guardians was
not allowed.35 Also in 1873 the Great Council of State permitted
the adoption of a son, if a house had no heir. Such an adoption
was allowed even posthumous.36 The ‘Hereditary Property Law for
Peers’ furthermore provided for an adoption in case of an extremely
poor ‘house’ which had only very young children. From 1875 on,
an adoption was only effected upon registration in the household
register, although the Justice Department in 187737 made clear that,
30
These rules were also applied to commoners from 1875.
32
R. Ishii, Nihon sòzokuhòshi [The History of Japanese Law of Succession] (Tokyo
1980) 280.
33
34
Kosekihò
35
R. Ishii, Japanese Culture in the Meiji Era, Volume IX, Legislation (Tokyo
1958) 677; for further details see ‘Family Law’ 3.3.
36
Decree No. 263.
37
Notice No. 46.
31
310
civil code
like in case of marriage, de facto adoptions would be recognized.38
Principally an adoption had to be made by the head of a ‘house’,
although adoption by an heir was possible, too. No limitations as to
the number of adoptive sons existed. Although the foremost reason
for an adoption was to secure an heir, it was not uncommon to
adopt a son to take care of an infant heir.39 Some other common
forms of adoption were that of a son as a husband for a daughter
of a ‘house’40 or a female heir.41 But Great Council of State Decree
No. 60 of 1877 provided for the exception that a head of a ‘house’ who
had to dissolve his ‘house’ on the grounds of the impossibility of its
continuation, could be adopted into another ‘house’. The head of a
branch ‘house’ could be adopted as heir to the main ‘house’. Special
regulations also applied, if an heir was needed to continue the vocation of a ‘house’. The procedure of registration of an adoption was
similar to the one in case of marriage.42
In case of failure of heirs, it was originally customary that the Family
Council of a samurai ‘house’, whose head had died without an heir,
was given fifty, sometimes a hundred days to find a successor. This
practice became law in 1880,43 but the period in which a new head
of a ‘house’ was to be found was extended by another six months
before the ‘house’ became extinct. In June 1885 the Great Council
of State decided in Decree No. 20 that a ‘house’ would become
extinct six months after the death of the househead or after removal
of his name from the household register without having found a successor. In such a case all remaining property had to be put in custody
of relatives of the village head for five years, in case an heir appeared.
After this period relatives could dispose freely of the property or it
would fall to the authorities.44
Upon succession to the headship of a ‘house’, the heir succeeded
to all the property of the ‘house’. Nevertheless, there seems to have been
a custom for an abdicating househead to reserve some of the ‘house’s
property for himself. Great Council of State Decree No. 153 of 1875
38
Ishii, note 35, at 676–677; Otake/Maki, note 50, at 254; also see Mayer,
note 67, at 32.
39
Furukawa, note 18, at 27.
40
mukoyòshi
41
nyùfu; Furukawa, note 18, at 29.
42
43
Great Council of State Decree No. 3.
44
law of succession
311
stated in case of succession upon abdication that all immovables
belonging to the ‘house’ were to become the property of the successor
by transfer of title deeds. Such a transfer was not essential in case
the succession had commenced upon death. However, Great Council
of State Decree No. 145 of 1880 stated that all property which had
not been registered otherwise, automatically became the heir’s property.
Naturally debts and claims of the former head of a ‘house’ were
succeeded to by the heir. From 1873 on the same applied to surety
obligations.45
2.2. Succession to Property
During the Tokugawa period ‘house’ members had not been allowed
to own separate property; all property belonged to the ‘house’, and
was administered and disposed of by the head of a ‘house’. But since
the Meiji Government had started to reward individuals for personal
merits, private property became permitted in the early years of the
Meiji period.46
Since such property or income could not be treated as property
of the ‘house’, the institution of private property of individuals was
established for the first time. In 1873 a law was enacted, which abolished the prohibition of the sale of land and granted title deeds to
landowners. This and other subsequent legislations led the courts to
recognize separate property of ‘house’ members.47
Unlike succession to the headship of a ‘house’, succession to such
individual property commenced only upon the death of the person
to be succeeded.
According to a Great Council of State Decree of 1875, every person who had inherited land by means of succession to property,
needed a transfer of the title within six months after the opening of
the succession. In 1880 new regulations were enforced, stipulating
that anyone who inherited land from a person other than a head
of a ‘house’, had to sign the land deed together with his relatives
and submit a petition for deed renewal within six months.48
45
N. Hozumi, The New Japanese Civil Code as Material for the Study of
Comparative Jurisprudence (Tokyo 1904) 64.
47
Hozumi, note 46, at 64.
48
46
312
civil code
3. Law of Succession in the Old Civil Code
Even though the compilation of a Civil Code was one of the first
projects undertaken by the Meiji Government, Japan’s first modern
Civil Code was only completely enacted in 1898. As has been explained elsewhere,49 initially a number of fruitless attempts to compile
a Civil Code based upon a translation of the French Code Napoleon
had been undertaken, before, in 1881, the ‘Bureau for the Codification
of the Civil Law’50 had been established within the Senate,51 where
compilation work was commenced upon a draft made by French
jurist Gustave Boissonade. A final draft was completed by the Justice
Department’s52 ‘Law Investigation Commission’53 in 1888, and eventually promulgated in 1890, to be enforced in 1893.
As to the provisions on succession in this so-called Old Code, it
needs to be mentioned that the already existing concept of the ‘house’
in general was principally incorporated in this Code, and succession
was divided to succession to the headship of a ‘house’ and succession
to property.
3.1. Succession to the Headship of a ‘house’
Under the Old Code, the ‘house’—comprising a househead, his or her
spouse, and relatives by consanguinity or affinity54—was defined as
the basic unit. It was essential for each ‘house’ to have a head, on
whom numerous rights and duties were bestowed. Without a head,
a ‘house’ faced extinction.
Like in the early Meiji period, succession into the headship of a
‘house’ did not only commence upon the death of the head of a
‘house’, but succession inter vivos was recognized in the Old Code as
well. If a head of a ‘house’ abdicated or otherwise lost his position
on the grounds of a female head passing her position to her husband
upon marriage,55 the divorce of such a marriage, or if a head of a
‘house’ lost the Japanese nationality, succession to the headship of a
‘house’ was opened.56
49
50
51
52
53
54
55
56
See ‘Family Law’ 2.
Minpò hensan-kyoku
Genrò-in
Shihò-shò
Hòritsu torishirabe iin-kai
Art. 243 Old Code.
nyùfu
See Arts. 252, 258 Old Code.
law of succession
313
Retirement or abdication was allowed, when its purpose was the
succession to the headship of a principal ‘house’ by the head of a
branch ‘house’, when an adopted son was to succeed to his ‘house’ of
origin, or when circumstances compelled a head of a ‘house’ to enter
another ‘house’ as an adopted son. In any case, abdication was only
permitted, if succession had been secured.57
As to the order of succession to the headship, the Old Code stipulated male primogeniture, and provided the following rules for the
determination of an heir:
1. Among the lineal descendants who were members of the ancestor’s ‘house’, the person having the closest degree of relation to
the ancestor took precedence;
2. among lineal descendants of the same degree the male, whether
legitimate or not, took precedence over the female, and
3. among several male (or female) children the first born took precedence. However, the legitimate child took precedence over the
illegitimate child who was acknowledged by the father.58
Like before, a head of a ‘house’ or an heir who had no male
offsprings, could adopt a son to ensure the maintenance of the
‘house’.59 In general, the Old Code’s provisions on adoption basically followed the existing rules: an adopter had to be older than the
adoptee,60 and a person who already had a son as an heir to the
headship of a ‘house’ could not adopt another son.61 The right to
adopt was reserved to the head of a ‘house’ or an heir into such a
position.62 A married person needed his or her spouse’s consent for
an adoption.63 An heir or adopted heir could not be adopted by
another ‘house’.64
The new head of a ‘house’ succeeded to the family name, family
lineage, titles of honour and all property as well as to the ownership
of the ‘house’s’ genealogical records, hereditary property, articles of
worship, tombs, firm name and trade marks.65
57
58
59
60
61
62
63
64
65
Ishii, note 35, at 689; also see ‘Family Law’ 4.3.
Vide Art. 158 Old Code.
Art. 106 I Old Code.
Art. 107 Old Code.
Art. 109 Old Code.
Art. 110 Old Code.
Art. 11 Old Code.
civil code
314
Since the Old Code permitted all members of a ‘house’ to own private property,66 the Old Code comprised not only provisions on the
succession to the headship of a ‘house’, but also on succession to
property. Unlike in case of succession to a headship, succession to
property was opened only upon the death of a ‘house’ member.67
Successors in the first rank were lineal descendants of the person to
be succeeded; the surviving spouse stood next in line of succession.
If neither offsprings nor a spouse existed, the property was inherited
by the head of a ‘house’.68 It was possible to determine shares and make
legacies by will, although this freedom was restricted by the provisions of legally secured portions, which constituted half of the estate.69
4. Law of Succession in the Meiji Civil Code 70
As mentioned before,71 the Old Code was set to be enforced from
1 January, 1893. However, the so-called codification debate between
the Anglo-Saxon and the French law schools erupted, with the former
demanding the postponement, the latter the enforcement of the Code.
As a consequence of this debate, the enforcement of the Code was
postponed in 1892. The Old Code’s opponents had criticized it as
being nothing but a blind imitation of the Code Napoleon, and
including too many innovations especially in the field of Family Law
and Succession, which were feared to destroy loyalty and filial piety.
In 1893 a new committee was established. Based on the pandecten
system, the ‘Codification Committee’72 studied comparative law, albeit
taking into consideration existing Japanese laws and customs. The
committee drafted a new Code, the first three books of which were
published in 1896,73 and the books on ‘Family’ and ‘Succession’ in
66
Art. 245 Old Code.
Art. 992 Old Code.
68
T. Taniguchi, Über das heutige japanische Familiensystem [ The Japanese
Family System Today]; 10 Zeitschrift für ausländisches und internationales Privatrecht
477, 485 (1936).
69
70
For further details see Schmidt, note 1.
71
See 3.
72
hòten chòsa-kai
73
Law No. 89.
67
law of succession
315
1898.74 The whole Civil Code went into force on 16 July, 1898.75
First of all the Meiji Civil Code did not only distinguish between
designated and statutory succession, but also between succession to
the headship of a ‘house’76 and succession to property.77
4.1. Succession to the Headship of a ‘house’ 78
The so-called Meiji Civil Code established the ‘house’ as the basic unit
of Family Law and Law of Succession, comprising the head of a
‘house’ and its members.79 Vast authorities were bestowed upon the
head of a ‘house’, who had to reign the ‘house’, keep up order within
it, protect and guide its members, and to promote the honour and
material prosperity of the ‘house’. His position as link between the
ancestors and future generations of the eternal ‘house’ was especially
demonstrated by his right and duty to carry out the ceremonies for
the worship of the ancestors, and to administer the property of the
‘house’, which had been passed on from the ancestors.80
A ‘house’ had to have a head. The head of a ‘house’ was its chief
and director, and he or she was in duty bound to see and look after
all affairs of the ‘house’. There was no ‘house’ without a head. The
act of becoming a new head of a ‘house’ and thus succeeding to all
rights and duties of the headship was called katoku sòzoku.81
Succession to the headship of a ‘house’ commenced not only, when
a head of ‘house’ died.82 Succession inter vivos was also widely practiced, for instance when a head of a ‘house’ resigned from the headship,83 lost Japanese nationality, left the ‘house’ because of the
74
Law No. 9.
For further details see ‘Family Law’ 2.
76
katoku sòsoku or kamei sòzoku
77
isan sòzoku
78
For a detailed study see e.g. R. Ikeda, Die Hauserbfolge in Japan [ Japanese
Succession to the Headship of a House] (Berlin 1901).
79
Art. 746 Meiji Civil Code defined the ‘house’ as a group of persons with the
same surname. Members of the ‘house’ were its head and his relatives or the relatives of a former head as well as relatives who had entered the ‘house’ upon marriage and adoption (Arts. 732–735 Meiji Civil Code).
80
Also see ‘Family Law’ 5.
81
J.E. DeBecker, Annotated Civil Code of Japan Vol. IV (London 1910) 3.
82
Including the case of a ‘judicial death’ acc. to Art. 31 Meiji Civil Code.
83
See Arts. 752–757 Meiji Civil Code.
75
316
civil code
dissolution or annulment of a marriage84 or adoption85 or when a
female head of a ‘house’ married, with her husband being taken in
as a nyùfu86 or in case of divorce of such a marriage.87
Abdication88 was still widely practiced and permitted by the Code,
if a head of a ‘house’ was at least 60 years old, and succession
had been secured.89 A female head could retire voluntarily at any
time,90 but she had to retire upon marriage or adoption of a son.91
Because of the importance of the head of a ‘house’ for the continuity
of the ‘house’, the Meiji Civil Code provided a number of ways to
find an heir for the position as head of a ‘house’. First priority was
given to a legal heir,92 next to an heir appointed by the person to
be succeeded,93 then to an heir chosen by the Family Council,94 and
finally to an ascendant heir.95
A legal heir was a member of the ‘house’ and lineal descendant
of the head of a ‘house’ to be succeeded. However, he did not
necessarily have to be a blood relative of the ancestor or even possess
the legal status of a child or grandchild. Therefore an acknowledged
illegitimate child96 and even an illegitimate child97 could succeed, if
there were no heirs of a preferential rank. Principally relatives by
affinity, even if lineal descendants, could not succeed; the only exemption to this rule was the case of a nyùfu,98 whereas the adoption of
a husband for a daughter of the ‘house’ other than an heiress99 did
not affect the order of succession.100 If more than one such person
84
A person who entered a house upon marriage had to leave this house after
divorce or annulment of the marriage, Art. 778 Meiji Civil Code.
85
A person who had been adopted into a house had to leave such ‘house’ after
the dissolution or annulment of adoption; Art. 852 Meiji Civil Code.
86
Acc. to Art. 736 Meiji Civil Code, a nyùfu husband of a female househead
becomes the head of her house.
87
Art. 964 Meiji Civil Code; a nyùfu husband has to return to his house of origin upon a divorce; Art. 739 Meiji Civil Code.
88
inkyo
89
90
91
92
93
94
95
96
shoshi; see ‘Family Law’.
97
shisei-shi; see ‘Family Law’.
98
Arts. 971, 736 Meiji Civil Code; see ‘Family Law’.
99
mukoyòshi; see ‘Family Law’.
100
law of succession
317
existed, the one with a nearer degree of relationship took precedence;101
among persons of the same degree of relationship, males had priority,102
legitimate took precedence over illegitimate children,103 and legitimate children and acknowledged illegitimate children—male and
female—took precedence over illegitimate children.104 Among persons with the same rank as the aforementioned, the older one took
precedence.105 If such a person had already died prior to the commencement of succession or had lost his or her right to succession,
Art. 974 of the Meiji Civil Code provided for the succession of his
or her lineal descendants instead.106
If no legal heir existed, the head of a ‘house’ to be succeeded
could designate an heir too.107 A designation lost its effect, when a
legal heir came into existence.108 If neither a legal nor a designated
heir existed, the father of the head of a ‘house’ to be succeeded, the
mother, if no father existed, or, if neither parents existed, the Family
Council109 chose an heir from among the members of the ‘house’
in the following order: a spouse, who was a daughter of the ‘house’,
brothers, sisters, other spouses and lineal descendants of siblings.110
If still no heir could be found, the nearest lineal ascendant of the
last head of a ‘house’ succeeded, with males once again taking precedence over females.111
The last step to be taken to find an heir was for the Family Council
to choose one from among the relatives and members of the ‘house’ of
the last head, or from among ‘house’ heads of branch ‘houses’ or
members of the principal or a branch ‘house’. If the Council failed to
find such person, it could choose an heir from among other persons.112
Unlike appointed, chosen or ascendant heirs, a legal heir did not
have the right to renounce the succession or accept it with reservations.113 The legal heir furthermore had a legal share of one half of
101
102
103
104
105
106
107
108
109
110
111
112
113
Art. 970 I No. 1 Meiji Civil Code.
shòso sòzoku: succession in place of lineal ascendant.
Art. 979 II Meiji Civil Code.
shinzoku-kai; see ‘Family Law’.
318
civil code
the estate, whereas the secured share of other heirs to a ‘house’ was
one-third of the estate.114
A presumptive heir to the headship of a ‘house’ was deprived of
the right to succession if he had committed certain acts contrary to
morality and human nature, or who by his acts had been enemy to
public and private interests, if such a person had been sentenced for
having killed or attempted to kill the head of a ‘house’ or a person
who stood in a preferential rank in line of succession; if one knew
about another having committed such crime and failed to report it;
if a person threatened or defrauded the ancestor and prevented the
latter from making, annulling, or altering a will or caused him to do
so or if one had forged, altered, destroyed or concealed a will.115 Upon
court decision the person next in rank would succeed in such a case.
Furthermore, a head of a ‘house’ could disinherit116 an heir
presumptive for reasons which threatened the continuance of the
‘house’ and the line of ancestors or to disgrace the name of the
‘house’. This was for instance the case when he ill-treated or grossly
insulted the head of a ‘house’, was disqualified for the ‘house’ headship for physical or mental reasons, if he had been sentenced to a
penalty for an offence which disgraced the name of the ‘house’, or
if he had been adjudged incompetent for being a spendthrift.117
As to the effects of succession to the headship of a ‘house’, Art. 986
of the Meiji Civil Code stipulated that the heir succeeded from the
moment of the commencement of the succession to all rights and
duties118 which the former head of ‘house’ had possessed, unless they
had been of a strictly personal nature. A special privilege of succession to a ‘house’ was the succession to the ownership of genealogical records,119 of utensils for religious purposes,120 and of tombs and
burial grounds.121 The reason for this provision was that these objects
114
116
haijo
117
118
Such rights and duties did not only include rights and duties with respect to
property, but also with respect to relationship, such as the right to take persons into
the house or exclude them, the duty of support etc.; DeBecker, note 81, at 27.
119
keifu: documents relating to the lineage and genealogy of the house; DeBecker,
note 81, at 28.
120
saigu: vessels, utensils, furniture and all other things which were used for the
worship and commemoration of the gods or deities and the ancestors; DeBecker,
note 81, at 28.
121
Vide Art. 987 Meiji Civil Code; funbo: the ground and all sorts of constructions thereupon dedicated to the ancestors of the house; DeBecker, note 81, at 28.
115
law of succession
319
were sacred embod-iments by means of which the memory of the
ancestors and the name and honour of the ‘house’ were held in
respect and reverence. They could not be assigned and passed from
person to person without violating common human feelings; and for
the same reason the seizure of genealogical records and utensils for
religious purposes was forbidden in the Code of Civil Procedure.122
Art. 748 of the Meiji Civil Code recognized the individual ‘house’
members’ right to own private property, which was passed on separately
from the headship and property of the ‘house’. Therefore the second
kind of succession, as recognized by the Meiji Civil Code, was succession to property, which included only the succession to the property of a ‘house’ member upon his or her death.123
Like under the Old Code, succession to property commenced only
upon death.124 Successors in the first rank were direct lineal descendants,
even if they belonged to a different ‘house’. If more than one such
person existed and if they stood in the same relationship with the
person succeeded, the successors received equal shares. The spouse
was successor in the second rank, and if there were neither children
nor spouse, the lineal ascendants and finally the head of a ‘house’
inherited.125
The procedure in case of failure of heirs126 in the Meiji Civil Code
differed considerably from previous practice and the provisions in the
Old Code. Firstly, if it was uncertain whether an heir existed, the estate
formed a juridical person.127 If, within two months after the court
122
Minji Soshò-hò (Code of Civil Procedure) Law No. 29 of 1890, Art. 570 Nos.
10, 11; for a German translation see K. Vogt, Japanische Civilprozeßordung und
Gerichtsverfassungsgesetz [ Japanese Code of Civil Procedure and Court Organization
Law] (Yokohama 1920); As Hozumi (note 46, at 59–61) pointed out, succession in
Japan had originally meant succession to sacra, and although the Civil Code of
1898 had actually demonstrated that at the end of the Meiji period Japanese succession was already about to leave behind the idea of succession to status for succession to property, traces of the first element could still be found in the Code.
Art. 987 Meiji Civil Code read: “The ownership of the records of the genealogy of
the house, the article used for house-worship and the family tombs constitutes the
special right of succession to the headship of a house.”
123
124
125
126
sòzoku-nin no kòketsu
320
civil code
having given public notice of the circumstances,128 no heir had been
found, all creditors of the succession and legatees were notified to present their claims within a period of not less than two months.129 If
after the elapse of this period no heir was found, the court had to
give public order to notify any heirs to assert their rights within a
period of at least one year.130 After this period the property fell to
the National Treasury.131
According to Art. 997 of the Meiji Civil Code, a person, who had
been sentenced to punishment for killing or having attempted to kill
the person to be succeeded to or another successor in the same or
in a preferential rank, as well as persons mentioned in Art. 969 Nos.
2–5 of the Meiji Civil Code,132 lost his or her right to succession.
Like in the case of succession to a ‘house’133 an ancestor could disinherit a presumptive heir, if he or she had ill-treated or grossly
insulted the ancestor.134
As to the effects of succession to property, an heir succeeded from
the moment of the commencement of the succession to all the rights
and duties belonging to property, unless they were of an exclusively
personal nature.135 When several heirs in the same rank existed, their
portions of inheritance were equal. But an illegitimate child received
only half the share of a legitimate child.136
An heir had to either absolutely137 accept or to accept with limitations138 or renounce139 succession within three months from the time
he learned about the commencement of the succession.140 If an heir
accepted absolutely, he or she succeeded without limitations to the
rights and duties of the ancestor.141 Even if the heir had not declared
absolute acceptance, he was deemed to have succeeded absolutely, when
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
Vide Art. 1052 II Meiji Civil Code.
Disqualification of an heir to the headship of a house.
tanjun shònin
gentei shònin
hòki
law of succession
321
he had disposed of all or of part of the estate, if he had not declared
limited acceptance or renunciation or if he had concealed, secretly
consumed or failed to register the property in the inventory after
having declared limited acceptance or renunciation.142
If an heir had declared limited acceptance, he had to pay obligations
and legacies of the ancestor only with the inherited property. But
since the procedure of limited acceptance was rather difficult, it was
hardly made use of.143
Wills,144 which under the Old Code had merely been an instrument
to make legacies, now had a chapter on their own, but since the practical importance of wills in Japan has never been very great, only a
few remarks on this matter will be made.
The legal age to make a will was 15;145 a testator could wholly
or partly dispose of his property by a general146 or particular title.147
Furthermore, an ancestor could adopt,148 disinherit,149 or designate
an heir150 by will. Like the Old Code, the Meiji Civil Code recognized the holographic, notarial and secret testament as ordinary
forms, and various exceptional forms in addition.151
As to legally secured portions,152 in case of succession to property,
a lineal descendant’s secured portion was one half of the property,
in case of a spouse or a lineal ascendant one-third.153 If more than
one heir in the same rank existed, the legal portion had to be equally
divided, although illegitimate children received only half the share
of legitimate children.154 Since donations155 and legacies156 were considered part of the successive property, a person entitled to a legal
portion could demand the reduction of such gifts or legacies, if necessary for the preservation of the legal portion.157
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
yuigon
hòkatsu meigi no izò
tokutei meigi no izò; see Art. 1064 Meiji Civil Code.
Arts. 1067, 1076 et seq. Meiji Civil Code.
iryù-bun
zòyo
izò
Arts. 1132 et seq. Meiji Civil Code.
322
civil code
5. Prewar Development 158
Hardly two decades after the enforcement of the Meiji Civil Code,
critical voices were raised, calling for a reform, caused by the liberal
and democratic tendencies of the Taishò period (1912–1926). Seemingly
in answer to these calls, but in reality to preserve the status quo,
the conservative government in 1919 established the ‘Temporary
Council on the Legal System’159 to investigate a revision of the Civil
Code. In 1925 and 1927 this Council published the ‘Outline of a
Reform of the Civil Code’,160 recommending various amendments to
the Code’s books on Family and Succession. The 34 articles on
‘Family’ and the 17 on ‘Succession’ proposed for instance that an
heir to the headship of a ‘house’ should only succeed to such property
as was essential for the preservation of the ‘house’, with the remainder
being distributed to other successors, like the spouse, and other
offsprings. Also, general preference of a legitimate child, irrespective
of sex, to an illegitimate child was advised. Furthermore, the council
recommended the reduction of the share of inheritance of nonmembers of a ‘house’ to one half of the share of members of the
‘house’ in case of succession to property. The spouse was proposed
to become a successor in the same rank as lineal descendants. Also,
legal shares were advised to be raised to two-thirds of the estate if
the spouse and lineal descendants were heirs, and to one half, if the
spouse was the only heir; and finally in case of a failure of heirs,
siblings should have precedence over the head of a ‘house’.
Based on these recommendations a reform draft was completed
in 1943, but, being far too liberal, never passed as law.161
6. Current Law of Succession162
After Japan’s defeat in the Second World War, one of the major aims
of the Occupation authorities was a thorough democratization of
Japan, including her legal system. One of the first steps taken in this
158
Also see ‘Family Law’ 6.
Rinji hòsei shingi-kai
160
Minpò kaisei yòkò
161
Schmidt, note 1, at 13; also see ‘Family Law’ 6.
162
For a short survey on current Japanese inheritance law see P. Schmidt,
Grundzüge des Japanischen Erbrechts [An Outline of Japanese Law of Succession]
90 ZEV 8 (1996).
159
law of succession
323
direction was the compilation of a new Constitution, which was promulgated on 3 October 1946 and enforced on 3 May, 1947.163
Among the fundamental principles of Japan’s postwar Constitution
is that of equality, which is postulated generally in its Art. 14164 and
provided for family relations in particular in Art. 24.165 These provisions
caused heated debates as to whether the existing ‘house’ system would
be compatible therewith. Although the conservative elements in Japan’s
society and politics saw no obstacle for the maintenance of the system,
leading jurists in the Ministry of Justice and the ‘Temporary Council
on the Legal System’ foresaw that the judiciary would adjudicate the
inconstitutionality of the ‘house’ and all related provisions. Moreover,
the failure of the efforts for democratization was feared, if the ‘house’
system was not abolished. This trend was already shown in the ‘Law
Concerning Temporary Adjustments of the Civil Code Pursuant to
the Enforcement of the Constitution of Japan’ of May 1947,166 which
among other points stipulated the repeal of all legal provisions concerning the ‘house’, the abolition of succession into the headship of
a ‘house’ and the spouse’s right to succession.167 Eventually, the abolition of the ‘house’ system on the legal level could only be realized
by persuading the advocates of the ‘house’ system that despite its
abolition on the legal level, it would be preserved on the level of
morality as one of Japan’s ‘good ways and beautiful customs’.168 The
revised Civil Code was published on 22 December, 1947 as Law
No. 222 and enforced on 1 January, 1948.169
163
Nihon koku-kenpò, for an English translation see D.F. Henderson [ed.], The
Constitution of Japan—Its First Twenty Years, 1947–67 (Seattle & London 1968).
164
Art. 14 I of the Japanese Constitution reads: “All of the people are equal
under the law and there shall be no discrimination in political, economic or social
relations because of race, creed, sex, social status or family origin.”
165
Art. 24 of the Japanese Constitution reads: “I. Marriage shall be based only
on the mutual consent of both sexes and shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis. II. With regard to
choice of spouse, property rights, inheritance, choice of domicile, divorce and other
matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.”
166
Nihon koku-kenpò no shikò ni tomonau òkyù-teki sochi ni kansuru hòritsu, Law No. 74
of 1947; for an English translation see K. Steiner, ‘Postwar Changes in the Japanese
Civil Code: 25–3 Washington Law Review and State Bar Journal (1950) 286, 294
et seq.
167
Arts. 3, 5, 6 of the Law Concerning Temporary Adjustments.
168
For details see S. Wagatsuma, Sengo ni okeru minpò kaisei ni keika [The Course
of the Postwar Revision of the Civil Code] (Tokyo 1989); Schmidt, note 1, 13
et seq.; ‘Family Law’ 7.
169
As amended by Law No. 79 of 1991; for an English translation see Eibun
Hòrei Sha [ed.], EHS Law Bulletin Series (Tokyo 1991).
civil code
324
6.1. Legal Line of Succession
In current Japanese law of succession all prospective successors are
determined by law; designation or altering of scale or order of successors is not permitted. The line of succession is based on the
parental system and within this by lineal representation.170
Successors are divided into relatives by blood and the spouse.
According to Arts. 887, 889 I of the Civil Code the following persons
will succeed in the following order: descendants of the person to be
succeeded, lineal ascendants, siblings. If more than one descendant
or lineal ascendant exists, the one in a closer relationship to the person to be succeeded has priority. There are no more heirs of fourth
or further rank. If children of the person to be succeeded exist, the
heirs of second and third rank will have no share. A surviving spouse
is without exception an heir.171 If no children, lineal ascendants or
siblings exist, the spouse is the sole heir. If there are no heirs, the
estate falls to the National Treasury. In 1962 Art. 958 b Civil Code
was introduced, enabling the Family Courts to give the whole or part
of the estate to a person who lived with the person to be succeeded
or who had some other special connection with such person, if no
legal heirs can be found.
A prospective heir can lose his right of inheritance because of
disqualification or disinheritance. Art. 891 Civil Code enumerates as
grounds for incapacity for succession such acts as killing or attempted
killing of the person to be succeeded or other prospective heirs, failure to report on such a crime, forgery of a will or forced alteration
of a will. If any of the aforementioned grounds applies, the heir automatically loses his right to succession and to the legally secured portion. The system of disinheritance allows a person to be succeeded
to apply to the Family Court for the disinheritance of a presumptive
successor, if the latter has treated the former cruelly, insulted him
or has committed any other gross misconduct.172
The decision on the shares of inheritance is in the first place up to
the person to be succeeded to. If the ancestor had not determined
shares,173 they are decided by law. However, the statutory as well as
170
171
172
173
Arts. 887 et seq. Civil Code.
Vide Art. 902 Civil Code.
law of succession
325
the determined portions are merely the successors’ abstract shares of
the inheritance. The concrete shares are determined under consideration of gifts and legacies. Since an amendment in 1980 Art. 900
of the Civil Code provides that in case the spouse and children are
left, the spouse receives half the estate, the other half is to be equally
distributed among the children. If the spouse and lineal ascendants
are the heirs, the spouse receives two-thirds, the parents or grandparents one-third. In case the spouse and siblings are left, the former receives three-quarters, the siblings one-quarter. If the spouse is
the only successor, he or she inherits all of the estate.174 Naien spouses
have no right to succession and illegitimate children receive only half
the share of legitimate children.175
As mentioned earlier, a person to be succeeded can determine
shares. If such determination contravenes the provisions concerning
legally secured portions, the judiciary grants the successor, whose legally
secured portion has been reduced, a claim on cutting the gift or
legacy.176 According to Art. 903 a Civil Code a testamentary or other
gift is treated as being part of the estate. The value of such a gift
is determined by its value at the time the gift was made.177
A provision that deserves to be mentioned as a relict of the prewar Code is Art. 897 Civil Code which deals with the succession of
genealogical records, utensils of religious rites and of tombs and burial grounds. Despite the new Code’s adherence to the principle of
equality, these items are not part of the estate and are to be succeeded by the person who keeps them by custom or who has been
designated by the person succeeded.
174
After the initial postwar reform the 1948 Civil Code stipulated in Art. 900
the following shares: if the spouse and children were heirs: one-third for the spouse,
two-thirds for the children. If the spouse and lineal ascendants were left, they
received half of the state each, and if the spouse and siblings succeded, the spouse
received two-thirds, the siblings one-third. The amendment of 1980 was especially
aimed at securing the livelihood of the surviving spouse; K. Hiraga, Sòzoku-hò no
kaisei [The Reform of the Law of Succession]: 942 Hanrei Jihò 7, 7–8 (1979).
175
Art. 900 No. 4 Civil Code; regarding the debate concerning the discrimination
of the illegitimate child’s inheritance right see P. Schmidt, Japanische Rechtsprechung—
Die Festlegung des gesetzlichen Erbteiles eines nichtehelichen Kindes auf die Hälfte
dessen eines ehelichen Kindes ist verfassungskonform [The Determination of an
Illegitimate Child’s Share of Succession as One Half of the Share of a Legitimate
Child is Constitutional] 1 Zeitschrift für Japanisches Recht (1996).
176
Saikò saibansho (Supreme Court) 29 May 1962, 14–10 Katei saiban geppò 11.
177
326
civil code
If the person to be succeeded has determined the concrete shares
by will, the estate is distributed according hereto. Otherwise the cosuccessors can agree on the exact way of partition. If such an agreement cannot be reached, each heir can apply to the Family Court
for distribution.178 In any case the basis for the distribution has to
be the kind and nature of the estate as well as—since the amendment
of 1980—age, occupation, state of mind and body, and living condition
of each successor. Art. 904 a Civil Code, also introduced in 1980,
provides for the consideration of special contributions to the estate
made by one of the heirs by providing labour, service or financial
support, or by nursing the person to be succeeded.
Within three months from the time a successor became aware of
the commencement of succession, he has to renounce or absolutely
accept successions or accept it with qualification.179 Renunciation or
qualified acceptance have to be declared to the Family Court after
preparing an inventory. When an heir disposes of the whole or part
of the estate, does not declare renunciation or qualified acceptance at
the Court or conceals, consumes or falsifies the inventory after having
declared renunciation or acceptance with reservation, he is deemed
to have accepted absolutely.180 If an heir accepts with reservation,
he is liable for obligations of the person succeeded to only up to the
amount of the inherited estate.181 If an heir accepts succession
absolutely, he succeeds into all rights and duties without limitation.182
The spouse, children and—if no children exist—lineal ascendants,
have a secured portion in the estate, of which they cannot be deprived.183 When parents or grandparents are the only heirs, one-third
of the estate is reserved for them. In case of the spouse and children
it is half of the estate.184 A person who disqualified for succession or
was disinherited, is not entitled to a secured portion.
178
It is generally acknowledged that the period of three months starts from the
time, when the presumptive heir has become aware of the condition of the estate,
especially whether it includes any liabilities; Supreme Court 27 April 1984, 38–6
Saitei saiban-sho minji hanrei-shù (Minshù) 698.
180
181
182
183
184
Before the amendment of 1980 secured portions were half of the estate for
spouse and/or children, otherwise one third.
179
law of succession
327
6.2 Testate Succession
According to Art. 961 Civil Code, any person over 15 years of age
can make a will. Although the Code acknowledges the freedom of
will, appointment of successors is not permitted. Dispositions allowed
by testament are the acknowledgment of an illegitimate child,185 designation of a guardian186 or a supervisor of a guardian,187 disinheritance
of presumptive successors,188 revocation thereof,189 or designation of
executors.190 Furthermore, in the field of property law a testator can
carry out an endowment by will,191 designate shares in succession,192
designate the mode of partition or forbid partition.193 A will can furthermore include instructions concerning the co-successors’ warranty,194
legacies,195 instructions in case a donee renounces a legacy,196 in case
of a reduction of the value of a testamentary gift,197 and in case of
an abatement of such gifts.198 Although not explicitly stated in the law,
the designation of the successor to genealogical records etc.199 release
from taking gifts into account,200 and the designation of the recipient
of life insurance payments,201 are possible.
According to Art. 960 Civil Code, a will is a onesided act, which has
to be made in conformity with the formalities prescribed in the Code.
There are three kinds of ordinary wills: by holographic document, by
notarial document, and secret will.202 Extraordinary forms are provided
for in emergency situations such as imminent danger of death, in
isolation for contagious disease, on a ship, or in case of a Japanese
resident in a foreign country.203
185
Art. 839 I Civil Code.
187
188
189
190
191
192
193
194
195
196
197
198
199
200
Art. 903 III Civil Code.
201
Art. 676 Commercial Code: Shòhò, Law No. 48 of 1899, as amended by Law
No. 66 of 1994; for an English translation see
202
203
186
328
civil code
A will becomes effective upon the death of the testator, unless an
application to the Family Court is necessary.204 Under certain circumstances a will is regarded as invalid, such as, in case of the testator’s
incapacity205 or if the will does not follow the proper formalities.206
7. Conclusion
As has been explained elsewhere,207 the Meiji Civil Code, after a series
of drafts, which had been rejected for being too liberal and too far
removed from Japanese tradition, followed the custom of male primogeniture for the purpose of the perpetuation of the ‘house’. The
temporary democratic movement of the 1920s could not succeed in
liberalizing and individualizing the Civil Code. It was only after the
defeat in the Second World War that the Code underwent a thorough revision to instigate democracy in family relations, by abolishing the ‘house’ system, and introducing equality among family members
in succession.
But after Japan had regained its sovereignty in 1952, conservative
forces tried to revive the ‘house’ system. However, those plans fell
through because of the determined opposition mainly from youth and
women’s organizations, but also due to the fact that the conservatives
were losing their rural strongholds in the wake of the effects of industrialization and urbanization, brought about by Japan’s rapid economic growth.
One of the major purposes of the attempts to revive the ‘house’
system had been the re-introduction of an exclusive heir system in
agricultural families. Such a system was sought because it was feared
that Japan’s already miniature farming units would be excessively
fragmented by the Civil Code’s principle of equal succession and
therefore destroy the productivity of most farmers. From 1947 until
1960 several bills were introduced, which allowed one child of a farmer
to hold all of the agricultural land, as long as the other children
were compensated.208 These bills could not pass, but loopholes were
204
205
206
207
208
Arts. 984, 893, 894 Civil Code.
See ‘Family Law’.
Schmidt, note 1, at 99 et seq.
law of succession
329
created in other legislation, such as the 1961 ‘Basic Law of Agriculture’,209 whose Art. 16 reads: “With the aim of preventing the
fragmentation of independent agricultural enterprises and agricultural
family businesses . . . the state takes necessary measures to enable one
of the co-successors to continue the management of such an enterprise in case of succession’.210
In practice, however, such a special legislation proved to be unnecessary, for especially in the 1950s and 1960s it seemed to have been
very common for children other than the heir who would manage
the farm or other enterprise, to waive their right to succession either
formally or de facto.211 But because of a complex variety of causes,
such as the intensification of the activities of democratic movements
since the late 1960s, with the Japanese people’s rising awareness of
their individuality and rights, growing urbanization and the youth
turning their back on agricultural work, soaring land prices and
higher expectations of one’s living standards, the democratic principles of the Law of Succession seem to have eventually penetrated
Japanese society.
209
210
211
Nògyò kihon-hò; Law No.
Schmidt, note 1, at 105.
For a detailed study of this matter see Schmidt, note 1, at 117 et seq.
CHAPTER FOUR
COMMERCIAL AND CORPORATE LAW IN JAPAN:
LEGAL AND ECONOMIC DEVELOPMENTS AFTER 1868
Harald Baum/Eiji Takahashi
4.1
Introduction*
1. Legal Overview
This chapter deals with the historical development of trade and economic law, with a focus on the Japanese firm, its development, and
its regulation.1 Taken literally, this subject encompasses a wide range
of regulatory topics, from commercial to corporate law and industrial relations, and from antitrust law to the regulation of financial
markets and foreign trade, to name but a few important aspects.
Some of these areas are discussed in other contributions to this volume.2 We will concentrate on commercial and corporate law with a
sidelook at securities and banking laws.
The pertinent regulations are found in various statutes which have
been adopted at different times and shaped after distinctively divergent
foreign concepts. The organizational side is covered by the Shòhò, the
Commercial Code of Japan,3 which contains most of the corporate
law, namely the provisions on the stock corporation (Chap. 2). The
* Abbreviations of German journals used in the text: RabelsZ = Rabels Zeitschrift
für ausländisches und internationales Privatrecht; ZJapanR = Zeitschrift für Japanisches Recht.
1
Where possible, special emphasis has been laid on the citation of relevant materials in Western languages to facilitate further research for readers not capable of
reading Japanese sources. Occasional exceptions notwithstanding this chapter is
based on materials published until 1998, and legal developments are taken into
account until that year.
2
Labour law and antitrust laws are discussed in Chap. 6 and Chap. 5.8 respectively.
3
Law No. 48 of 1899 as amended by Law No. 71 of 1997. For an English translation, see Eibun-Horei-Sha, EHS Law Bulletin Series Vol. II., JA, No. 2200 [hereinafter cited as EHS]. EHS is a Tokyo-based legal publisher that edits the continually
updated English translation of Japanese statutes. The translation covers the Shòhò
as amended to 1994.
introduction
331
code is supplemented by some additional, for the most part newer
laws referring to specific fields.4 The Shòhò dates back to the year
1899 and was originally strongly influenced by German law, as will
be explained in greater detail later. The relationship between the
stock corporation and the capital markets is regulated in the Shòken
torihiki-hò, the Japanese Securities and Exchange Law of 1948. This
law was modeled on the federal securities regulations of the United
States, especially the U.S. Securities Exchange Act of 1934, from
which it originally copied large sections, partly in literal translation.5
These two examples show the different—and quite varying —
influences on modern Japanese trade and economic law. Of course,
the adopted Western concepts were grafted onto an entirely different
legal culture—especially at the beginning of the modernization—and
therefore there has been considerable assimilation and further development according to Japanese necessities and customs in the decades
following their implementation.6 Again, this will be discussed in greater
detail later. As a result, Japan’s laws and regulations governing its
economy and business reveal a multi-layered and sometimes even
contradictory configuration that gives them a distinctive—if not, as
is sometimes claimed, a unique—structure.7 The legal developments
are, of course, intertwined in a dialectical process with the political
and economic changes in Japan, or—perhaps more precisely—they
are to a significant extent direct responses to rather abrupt politi-
4
Cf., e.g., the Kabushiki kaisha no kansa-tò ni kansuru shòhò no tokurei ni kansuru hòritsu
[Law on Special Cases under the Commercial Code on the Audit of Stock
Corporations] Law No. 22 of 1974 as amended by Law No. 62 of 1993. For an
English translation, see EHS, Vol. II., JAA, No. 2201.
5
Law No. 25 of 1948 as amended by No. 102 of 1997. Hereinafter also cited
as SEL or Shòtori-hò in accordance with the usual abbreviation in Japanese texts.
For an English translation, see Capital Markets Research Institute, Securities and
Exchange Law (1993, plus supplement 1995). The translation covers the Shòtori-hò
as amended to 1994.
6
A seminal work discussing these topics on the basis of the development of civil
law in Japan can be found in G. Rahn, Rechtsdenken und Rechtsauffassung in
Japan [Legal Thinking and Legal Mentality in Japan] (1990). From the U.S. perspective, see D.F. Henderson, Security Markets in the United States and Japan.
Distinctive Aspects Molded by Cultural, Social, Economic, and Political Differences,
14 Hastings Int. Comp. L. Rev. 263–301 (1991).
7
For a discussion of an appropriate classification of the Japanese legal system,
see H. Baum, Rechtsdenken, Rechtssystem und Rechtsverwirklichung in Japan—
Rechtsvergleichung mit Japan [Legal Thinking, Legal System, and Realization of
Law in Japan—Comparison of Law with Japan], 59 RabelsZ 258–292 (1995).
332
commercial and corporate law
cal and economic challenges, and only to a lesser degree the result
of a gradual adaptation and transformation. For initial orientation,
it may be helpful to take a short look at the different political and
economic periods characterizing Japan’s development over the last
130 years.
2. Historical Overview
As in other spheres of social life in Japan, two major political events
have shaped the unfolding and later the transformation of a modern legal system of trade and economic regulations. In the three
decades following the so-called Meiji Restoration of 1868, the foundations of that system were laid in a drastic change from the legal
practices of the preceding Tokugawa era (1600–1867). Of course, this
reform was not an isolated event but part of a giant transformation
of the Japanese economy and large parts of the society in general after
Western nations forced a secluded Japan to open to foreign trade. The
bulk of that transformation had already been achieved by the mid1890s. Thereafter Japan started to rapidly establish itself as a great
regional power and to consolidate that position by assembling a colonial empire. The successful Chinese-Japanese War of 1894–95 and
the occupation of Taiwan, the Russian-Japanese War of 1904–05,
the annexation of Korea in 1910, and the occupation of Manchuria
in 1931–32 were landmarks that ended in the Pacific War and ultimately Japan’s total defeat in 1945. That defeat was the starting
point for a second radical political change, the so-called “democratization” of Japan and the Japanese economy. During the Allied
occupation of Japan (1945–1951), the U.S. insisted on the introduction of various political, social, and legal reforms designed according to American models. The Peace Treaty of San Francisco in 1951
ended that second period of transformation under foreign influence.
Japan became a member of the General Agreement on Trade and
Tariffs (GATT) as well as the International Monetary Fund (IMF),
and finally it joined the Organization for Economic Cooperation and
Development (OECD) in 1964.8
8
This is, however, only a very basic political categorization. For a more detailed
overview, see, e.g., the various excellent contributions in P. Duus (ed.), The Cambridge
History of Japan, Vol. 6, The Twentieth Century (1988). Of further interest may
be K. Inoue, Nihon no rekishi [History of Japan] (1963 et seq.), in German: Geschichte
Japans (M. Hubricht, trans. 1993), which favors a kind of Marxist view on Japanese
commercial and corporate law in japan
333
Economists apply somewhat different frameworks to distinguish the
various distinctive economic phases between 1868 and the 1990s.9
The divisions vary depending on the perspective of the individual
author, but from an economic perspective it seems fairly safe to
differentiate as follows:
• 1868–1884: These years can be described as a period of pioneering and transition when the foundations of modern Japan
were laid.
• 1885–1919: The start of modern economic growth can be dated
to around the mid-1880s, and the economy gained further
momentum until about the end of World War I.
• 1920 –1931: The high-growth period was followed by a severe
depression.
• 1932–1945: An inflation-induced recovery in connection with the
preparation for the coming war again brought economic
growth until the breakdown of the economy at the end of
World War II.
• 1945–1951: Under the Allied occupation, a thorough restructuring
of Japan’s economic system began as part of the democratization process. The outbreak of the Korean War was the
starting point for the following long-lasting economic boom.
• 1952–1979: These years saw a period of high growth and Japan’s
gradual return to world markets—the so-called “Japanese
miracle”. A major interruption came with the first oil crisis
in 1973, but growth shortly thereafter resumed, albeit at a
more moderate pace.
• 1980–present: Japan became a major global player and the internationalization of its economy intensified. Another period of
high growth crowned with a speculative boom, the “baberu
keizai ”, gave way to a severe structural recession starting in
the early 1990s.
history. A classical Japanese treatise would be N. Asanao et al. (eds.), Iwanami kòza:
Nihon tsùshi [Iwanami Series: The Complete History of Japan] Vol. 1–21 (1993–1995).
9
There are many publications in Western languages dealing with the historical
development of the Japanese economy. A very good extensive overview can be found
with J. Hirschmeier & T. Yui, The Development of Japanese Business (1975); E.S.
Crawcour, Industrialization and Technological Change, 1885–1920, T. Nakamura,
Depression, Recovery and War, 1920–1945, and Y. Kòsai, The Postwar Japanese
Economy, 1945–1973, all in: The Cambridge History of Japan, Vol. 6, at 385–450,
451–493, 494–537 respectively (supra note 8); shorter: T. Ito, The Japanese Economy,
at 7–39 (1992).
334
When combining the political, economic, and legal perspectives, it
seems appropriate for our purposes to distinguish between four different
periods:
1. 1868–1899: With respect to commercial and corporate law, the
late 1880s and the 1890s seem to be the most interesting
years, culminating in the coming into effect of the Shohò in
1899. These years will be treated extensively infra in Sec. 4.2.
2. 1900–1945: In comparison to the legislative furor of the two preceding decades, the first decades of the twentieth century,
while full of political turmoil (as mentioned above), appear
to be rather calm in our areas of interest. However, this
period did see the rise of the modern corporation in Japan
and two comprehensive reforms of the corporation law in the
Shòhò in 1911 and 1938. In the same year, the yùgen kaisha,
the limited liability company, was introduced (infra sec. 4.3).
3. 1946–1980: Intense legislative activities commenced again after
1945. Under the Allied occupation, various legal reforms took
place as part of the democratization process during the late
1940s. The dissolution of the prewar zaibatsu and the big
shake-up of the financial markets went hand in hand with
the creation of a new anti-monopoly law and securities legislation, among others. The early fifties marked the beginning of the high-growth period, and the “Japanese miracle”
began to take shape. Various attempts were made in its
course to accommodate corporate law to the changing economic reality. The capital markets took shape based on the
new securities regime (infra sec. 4.4).
4. 1980–present: Arguably, the postwar period ended some time around
the year 1980 with a major reform of the foreign exchange
and trade regulation. Japan intensified its role as a major
global player and the Japanese markets began to open up,
albeit slowly. Various internationally oriented legal reforms
started, especially in the financial sector. The boom of the
1980s as well as the bust of the 1990s each added to this
regulatory dynamic (infra sec. 4.5).
Given the overall concept of this volume and the space limitations,
these four different periods have not been granted equal treatment
in this chapter. The emphasis is clearly laid on the first period: the
major changes initiated during the Meiji Restoration, which are the
the early years: 1868‒1899
335
most important and, in Western languages, the least-documented
developments. The interwar period experienced fewer dramatic legal
changes, and the postwar legal and economic developments are quite
well documented in Western sources. They are accordingly treated
less extensively here.
The 1980s and 1990s are not yet history, and they are only briefly
touched upon, as an afterthought. In 1989 Japan had reached its
economic pinnacle. Thereafter, the overheated economy collapsed
and a prolonged structural recession started which was accompanied
by gigantic losses in the financial industry, record numbers of bankruptcies, and rising unemployment. The “institutional fatigue” shown
by the recession of the 1990s throws light on severe structural deficits
of the political, economic, and not least the legal institutions, and
raises some questions about the viability of the “Japanese model” in
a changed global environment.
4.2
The Early Years: 1868–1899
1. Political and Economic Background
The historical events that led to the Meiji Restoration in 1868, a
turning point in Japanese history that induced a modernization process
with far-reaching consequences for Japan’s social and political structures, are described in great detail elsewhere, as are the ensuing
political activities and struggles of the Meiji government during the
years of transformation. They therefore do not have to be discussed
here again.10 However, some basic features of the political necessities and economic conditions leading to the creation of modern commercial, corporation, and financial law in Japan in the 1880s and
1890s are indispensable for understanding the legislative process.
10
A comprehensive picture can be found with the various contributions in: M.B.
Jansen (ed.), The Cambridge History of Japan, Vol. 5, The Nineteenth Century
(1989). For an institutional choice perspective, see J.M. Ramseyer & F.M. Rosenbluth,
The Politics of Oligarchy—Institutional Choice in Imperial Japan (1995).
336
a) Political Necessities
The introduction of a modern trade and economic law regime modeled on Western conceptions had two primary causes. As is well
known, the Tokugawa shògunate was forced in the mid-1850s to sign
so-called “unequal treaties” with various Western nations in the course
of the forced opening up of the country to foreign trade.11 These
treaties resulted in a severe loss of sovereignty for Japan. Foreigners
were free to settle in designated areas and to do business there as
they liked. Foreign residents were granted legal extraterritoriality; they
were not subject to Japanese jurisdiction either in criminal or in civil
and commercial matters. Instead, a system of consular jurisdiction
was introduced. As a court of first instance, the foreign consuls acted
with predictably unjust results in regard to Japanese plaintiffs. Even
worse, to enter an appeal, the parties had to turn to the courts in
the respective country of the involved foreigner, thus de facto prohibiting an aggrieved Japanese party from making an appeal.
Furthermore, Japan had renounced its tariff autonomy in those
treaties. The result was only marginal tariffs—if any—on foreign
goods from the countries involved. This deprived Japan of muchneeded revenue, which further exacerbated the chronic shortage of
capital in Japan during the first years of the modernization. Another
outcome of the low tariffs was a surge in imports, which in turn
led to an unwanted outflow of scarce capital. To end this loss of
sovereignty, its negative economic implications, and the extraterritorial privileges of the foreigners, the Meiji government began trying
to renegotiate the treaties in 1873, which had become an increasingly impeding Tokugawa legacy. But the Western nations involved
had reservations about such a reversion. They claimed, among other
things, that Japan’s “underdeveloped” legal system first had to be
modernized. Among others, special emphasis was laid on the compilation and promulgation of a commercial law comparable to the
relevant legislation in Western countries. The negotiations dragged
on for years. Even a multilateral conference organized as late as
1886 by the Japanese government in Tokyo had no success. It took
another decade of arduous bilateral negotiations for Japan to resolve
11
For a good description of that historical period, see W.G. Beasley, The Foreign
Threat and the Opening of the Ports, in: The Cambridge History of Japan, Vol.
5, at 259 et seq. (supra note 10).
337
the treaties after a “Western” judicial system had been installed in
the late 1890s.12
The second reason for creating a modern—meaning a Western—
commercial and corporate law system was the conviction of the Meiji
government that this institutional framework was a prerequisite for
the evolution of modern corporations in Japan. These in turn were
regarded as indispensable for nursing strong economic growth. Besides
being regarded as an end in itself, strong growth was also seen as
the basis for creating a strong military and consequently for assuring Japan’s safety and independence. Early attempts to establish stock
corporations without an appropriate legal basis had not been able
to raise sufficient funds on a large-scale basis, had damaged their
founders because of unclear limitations to liability, and, increasingly,
those companies were being used as vehicles to defraud investors.
These questions will be discussed in greater detail later.13
b) Economic Conditions in General
What were the economic conditions in the first two decades of the Meiji
reforms? A sketch at the macro-economic level may be sufficient to
illustrate the background against which the compilation and promulgation of the new trade and economic laws have to be seen.14
In the first half of the nineteenth century, Japan was to a large
extent a typical pre-industrial Asian country. The vast majority of
the population lived in rural villages. Trade was concentrated in
Osaka, the financial center, and Edo, the seat of the government,
the shògunate. Under the bakuhan system, economic policy and decision
making were shared by the Tokugawa government, the bakufu, and
nearly 300 domains, the han. The cornerstones of that economic
regime were regulation and control at all levels of administration
rather than modern parameters such as money supply, employment,
etc. It was a controlled economy that did not rely on market forces
12
For further details of this process, see A. Iriye, Japan’s Drive to Great-Power
Status, in: The Cambridge History of Japan, Vol. 5, at 721 et seq. (supra note 10).
13
See infra at c).
14
For a detailed analysis, see, e.g., E.S. Crawcour, Economic Change in the
Nineteenth Century, in: The Cambridge History of Japan, Vol. 5, at 569–617 (supra
note 10); Hirschmeier & Yui, supra note 9, at 70–144. The following section draws
extensively on these sources. For a property rights analysis, see M.H. Dunn, The
Property Rights Paradigma and the Meiji Restoration in Japan, in: Jahrb. f. Nationalök.
u. Stat., Vol. 207/3, at 271–285 (1990).
338
and consequently was not successful in creating economic growth.15
After the Meiji Restoration, the role of the market slowly began to
gain ground. The economy became increasingly free and competitive, but the philosophy of “laissez faire” and the belief in the “invisible hand” were quite unacceptable in Meiji or even pre-World War
II Japan in general. Instead, “business activity was rationalized in
terms of service to the community and the state”.16 English libertarian economic theory had been introduced in Japan soon after the
Restoration, but it was the German Historical School (List, Wagner,
Stein) which shaped most of the theoretical economic thought in Japan
in the 1880s and 1890s. Obviously it was regarded more appropriate
to justify state intervention and nationalistic policies in the form of
monopoly protection and subsidies to private enterprise, compared
to classical free trade theory.17 However, even if laissez-faire principles
were not followed, except in the initial phase, the state did not run
enterprises by itself; in other words, Japan was no centrally planned
economy based on the idea of collective property.18 But a strong tendency to interfere into the market process and to try to control the
economy in the interests of the state as defined by the bureaucracy
rooted in Tokugawa times can still be seen today, although one would
not hesitate to describe present-day Japan as a market economy.19
A subject of continuing debate which cannot be pursued here is,
accordingly, to what extent the “visible hand” of the government
was either causal or detrimental in Japan’s economic success once
the initial transformation around the turn of the century (or the
15
Crawcour, supra note 14, at 576 et seq.
Crawcour, supra note 14, at 617.
17
Cf. T. Teratani, Japanese Business and Government in the Takeoff Stage, in:
Government and Business. Proceedings of the Fifth Fuji Conference, at 57 et seq.
(K. Nakagawa, ed. 1980); Crawcour, supra note 9, at 448.
18
A comprehensive evaluation of the role the state has played can be found with
E. Pauer, Die Rolle des Staates beim Aufstieg Japans in den Kreis der hochindustrialisierten Länder [The Role of the State and Japan’s Rise into the Group of
Highly Industrialized Nations], in: Technik und Staat [ Technology and State]
(A. Herrmann & H.P. Sang, eds. 1992), at 161 et seq.; id., Die Rolle des Staates in
Industrialisierung und Modernisierung [The Role of the State in Industrialization
and Modernization], in: Der schlanke japanische Staat [Lean Government in Japan],
at 28 et seq. (G. Foljanty-Jost & A.M. Thränhardt, eds. 1995).
19
Similar to J. Murakami, Das japanische Unternehmen im Wandel der
Wirtschaftsverfassung [ The Japanese Enterprise and the Changing Economic
Condition], in: Staat und Unternehmen aus der Perspektive des Rechts [State and
Enterprise from a Legal Perspective], at 1 (H. Coing et al., eds. 1994).
16
339
reconstruction after World War II respectively) was finished.20 In any
case, it seems quite safe to say that Japan as a latecomer could take
advantage not only of advanced industrial technology but also of
advanced techniques of manipulation [of markets]”.21
Although there were earlier attempts to reform the system beset
with increasing economic difficulties, the real change came only with
the Meiji Restoration when the old order was removed and the central controls on trade ended. But even that far-reaching change was
a gradual one. According to a government-ordered survey on occupational distribution in 1874, 77 percent of those occupations surveyed
were listed as agricultural, less than 4 percent as industrial, some 8
percent as commercial, and 9 percent as miscellaneous and services.22
Not until 1935 did industrial production overtake agriculture.23
However, although Japan lacked sufficient capital for its ambitious
modernization process, its elite had a strong determination to proceed: Japan had the right “spirit”. The first Economic White Book
of 1884 (Kògyò iken)24 evaluates the various factors leading to the modernization as follows:
Which requirements should be considered as most important in the
present efforts of the government in building Japanese industries? It
can be neither capital nor laws and regulations because both are dead
things in themselves and totally ineffective. The spirit sets both capital and regulations in motion. . . . Hence, if we assign weights to these
three factors with respect to their effectiveness, the spirit should be
assigned five parts, laws and regulations four, and capital no more
than one part.25
As a lawyer, one appreciates the importance put on the legal framework as an institutional basis for economic success.
20
For a positive evaluation, see, e.g., C. Johnson, Japan: Who Governs? The Rise
of the Developmental State (1995). For a more skeptical analysis, see, e.g., H. Baum,
Emulating Japan?, in: Japan: Economic Success and Legal System, at 1 et seq.
(H. Baum, ed. 1997).
21
22
Cited after Crawcour, supra note 14, at 613.
23
Cf. T. Nakamura, Wirtschaftliche Entwicklung des modernen Japan [Economic
Development in Modern Japan], at 40 (1985).
24
A very informative report on the development and the role the Economic
White Book has played during the modernization process can be found with
S. Crawcour, Kògyò iken: Maeda Masana and His View of Meiji Economic Development, 23 J. Jap Stud. 69 et seq. (1997).
25
Cited after the translation of Hirschmeier & Yui, supra note 9, at 76–77.
340
There was a clearly dual structure in the Japanese economy between
the traditional and the modern industrial sector. The traditional
industries—such as the production of raw silk or other textiles—were
focused on consumption and on export to earn foreign currency and
to finance the further development of the modern industries—such
as steel—which were mainly needed to fulfill the demands of the
state.26 In the 1870s the government started to build up its infrastructure of railways, telegraph lines, and a modern postal service
and laid the foundations of a modern banking system.27 Imported
techniques significantly increased the productivity of the traditional
sector on the one hand, and on the other hand allowed the gradual
build-up of modern industry strongly promoted by the government.
Consumption was restricted in the interest of industrial and military
investment.28
Although the government had planned to rely on private enterprises in its drive for modernization, it soon became clear that the
merchants were not willing to take sufficient risks to develop a modern
industry. Therefore the government had to start to act as an entrepreneur. The Ministry of Industry founded in 1870 began to build
pilot enterprises staffed with foreign experts. The emphasis was laid
on heavy industries like mining, ship-building, railways, machinery,
and armaments.29 These eventually fulfilled their purpose as models
for the private sector to which most were sold, although on the
whole they incurred heavy losses for the government.30
In the late 1870s inflation had become a serious problem; the banks
kept issuing notes and the government printed new paper money in
ever-increasing amounts. Furthermore, there was a boom-inspired speculative rush into business in the hope of quick profits. In short, the economy was gripped by a speculative fever.31 When Masayoshi Matsukata
(1835–1924) became Minister of Finance in 1881, he started a strict
deflationary policy which indeed ended the inflation by around 1885.
However, one side-effect of that policy was a drastic rise in bank-
26
Cf. Nakamura, supra note 23, at 39.
See infra c) (2).
28
29
Cf. K. Kobayashi & M. Kobayashi, Government Promotion of Manufacturing
as a Precondition for Industralization, in: Government and Business. Proceedings of
the Fifth Fuji Conference, at 38 et seq. (K. Nakagawa, ed. 1980).
30
Cf. Hirschmeier & Yui, supra note 9, at 86 et seq.
31
Cf. Hirschmeier & Yui, supra note 9, at 89–90.
27
341
ruptcies, which in turn intensified the calls for the promulgation of
a company law, for, as will be described later in detail, companies
more or less conducted their business in a legal vacuum.
At the end of the 1880s, only two decades after the Meiji Restoration,
the cost of that revolution and the ensuing transformation had largely
been met and the foundations for the future development of a modern economic sector in industry, trade, and finance had been laid.
A phase of modern economic growth started that would last until
around 1920.32 However, as we look later at the introduction of a
modern concept of the corporation and a new commercial law it
should be kept in mind that, as mentioned above, the overwhelming majority of the gainfully employed Japanese in the 1880s and
1890s worked in agriculture and traditional commerce and industries which produced the lion’s share of the Japanese GNP.
Correspondingly, the growth of the traditional sector played a vital
part in economic development in general.33
c) Corporations in Meiji Japan
(1) Promotion of the Company System
A crucial role in the modernization of the economy in Meiji Japan
was played by new forms of enterprises adopted from Western models
as early as in the 1870s. Special emphasis must be given in this
regard to the joint stock company form of enterprise.34 Eiichi Shibusawa
(1840–1931), the powerful Meiji business leader, credited much of
Japan’s industrial success to the effective introduction of this form
of enterprise, which he himself tirelessly promoted.35 It is noteworthy
that—as is true for the Japanese capitalistic system in general—the
32
Cf. Crawcour, supra note 9, at 385.
Cf. Crawcour, supra note 9, at 405 et seq., 420.
34
An excellent description and analysis of the historical facts can be found with
E. Pauer, Bemerkungen zur Entwicklung der Aktiengesellschaften im Japan der
Meiji-Zeit [Comments on the Development of Stock Corporations in Meiji Japan]
in: Sozioökonomische Entwicklung und industrielle Organisation Japans [SocioEconomic Development and Industrial Organisation in Japan], at 104 –133
(S. Linhart & E. Pauer, eds. 1979); the following passages draw extensively on this
source. A comprehensive Japanese source would be K. Kanno, Nikon kaisha kigyò
hasseishi no kenkyù [An Essay on the Historical Development of the Japanese Corporation]
(1931).
35
Cf. Hirschmeier & Yui, supra note 9, at 111. For the life and work of Shibusawa,
see his autobiography trans. and annoted by T. Craig, The Autobiography of
Shibusawa Eiichi: From Peasant to Entrepreneur (1994).
33
342
growth of the modern company in Japan did not evolve by itself
over time according to economic necessities. Instead, it was the result
of active government policies which introduced foreign eco-nomic
theories and an imported legal framework while forcefully abolishing
old structures and thereby creating room for new developments.36
In pre-Meiji times Japan lacked a company system in the modern
sense. Traditionally, business was conducted through family-based
enterprises, the “house” (ie) or family associations called “kumi ”.37
This was especially true for the large number of merchant houses.
Capital was raised within the ie rather than from a larger number
of partnerships or anonymous investors through shares. In addition
to the kumi, there were cooperatives (kumiai ) as well as guilds (nakama).38
With a significant break from its past of family-based merchant
houses and the guild system, the Meiji government strongly promoted
the introduction of a company system.39 In the course of its fundamental policy of “fostering commerce and strengthening industry”,
the government anxiously tried to popularize the establishment of
enterprises.40 Sometimes it even pressured reluctant merchants to participate in joint ventures in the form of joint enterprises.41 With good
reason it regarded those as the most appropriate form of modern
business. It was generally thought that new forms of business required
new forms of companies. The joint enterprise had several advantages over the traditional means of doing business. It enabled entrepreneurs to channel large amounts of investable capital from scattered
sources into a collective undertaking, thereby creating a sound financial
basis for the new, capital-intensive industrial ventures. Furthermore,
it facilitated the rise of a new class of employed, able managers independent of capital who could compete with foreign firms. Although
36
Cf. Pauer, supra note 34, at 112.
A very informative description about the development over the last 300 years
of a traditional Japanese company, the leading producer of soy sauce, can be found
in M. Fruin, Kikkoman. Company, Clan, and Community (1983).
38
39
The changes which the business of the Mitsui family underwent during and
after the Meiji reforms are described by S. Yonekura, The Emergence of the
Prototype of Enterprise Group Capitalism—The Case of Mitsui, 20 Hitotsubashi J.
Com. & Man. 63–104 (1985).
40
Cf. M. Fukushima, Meiji nijuroku nen no kyù-shòhò-chù kaisha-hò no sekò—sono keika
to igi, 51 Waseda Hògaku 5 (1977), reprinted as: The Significance of the Company
Law Chapters of the Old Commercial Code in 1893 (W. Horton, trans.), 24 Law
in Japan 171–191 (1991). The quotations refer to the English translation. The citation is at p. 172.
41
Cf. the incident reported by Murakami, supra note 19, at 2.
37
343
this does not mean that there was a smooth transition to a general
application of modern management methods in the new enterprises,
at least the institutional framework was set. A contemporary Japanese
observer, the aforementioned Shibusawa, emphasized an additional
aspect: in his view, this form of enterprise was particularly well suited
to the Japanese, whom he regarded as especially good at cooperation.42
To foster its promotion of the company system, in 1871 the Ministry
of Finance published two books which became quite influential in
the following years. One, written by Shibusawa, was entitled “Rikkai
ryakusoku” [Outline on the Formation of Companies]; the other was
G. Fukuchi’s “Kaisha-ben” [About Companies], which was largely a
translation of American sources.43
The abolition of the feudal system affected not only the samurai
class, but also the merchants of the Tokugawa period who experienced
the collapse of the commercial system in which they were integrated.
The abolition of the guild system, the opening of the ports, and the
introduction of freedom of commerce made room for a new brand
of speculative traders and ended the traditional patterns of trade.
The government ordered a forced reduction of debts which resulted
in heavy losses for the merchants. In the first years of the reforms,
several hundred merchant houses went bankrupt.44
Under the guidance of Shigenobu Òkuma (1838–1922), who led
the Ministry of Finance, a group of dynamic, America-oriented men
began the establishment of a unified modern financial system in
Japan. The introduction in 1871 of a new national currency, the
yen, ended the previous system of money changing by merchant
houses who had functioned as banks (ryògaeya). In the same year the
mint started its operations in Osaka. To secure a source of stable
tax income, the government introduced a land tax system in 1873
which included monetization:45 taxes were no longer to be paid in
rice but in currency. To fulfill their tax obligations, farmers had to
collect large amounts of money, which in turn created an opportunity for the establishment of a banking system.46
42
Cf. Hirschmeier & Yui, supra note 9, at 111.
Cf. N. Tamaki, Japanese Banking: A History, 1859–1959, at 33 (1995); Pauer,
supra note 34, at 106–107, and Fukushima, supra note 40, at 172.
44
45
46
Cf. Kobayashi & Kobayashi, supra note 29, at 45.
43
344
(2) Introduction of the Stock Corporation—The First Banks
To help the merchants whose expertise the government needed to
handle trade with the West and to foster foreign trade, eight cities
were designated in which joint stock commerce companies were
established. Although foreign trade had a high priority for the government, the breakthrough for the joint stock company came not with
the trading companies but, rather unusually, with the banks. In its
efforts to create a modern banking system, the Meiji government promoted the establishment of “exchange companies” (kawase kaisha) in
the form of joint stock enterprises to act as banks.47 These companies cannot be described as stock corporations in the modern sense,
but they did have some similarities. They were in part capitalized
with government money. Their participants or “shareholders” were
entitled to a fixed dividend, but at the same time they also participated
in profits. Interest on capital was guaranteed by the government.
Certificates were issued but could only be transferred with the company’s consent. The president was not elected but was the holder
of most of the certificates after being appointed by the Ministry of
Finance. The system of supervision was only rudimentary. In spite
of their structure as joint stock enterprises, the participants bore an
unlimited liability. In summary, these kawase kaisha have been accurately described as some kind of “incomplete stock corporations”.48
Their business had difficulties in taking off, not least because of the
fact that the individual merchant houses would have preferred to
operate independently. In the end, the first banking experiment of
the Meiji government failed.49
Therefore, the government under Hirobumi Itò (1841–1909) introduced a new system of national banks organized according to the
U.S. model.50 The National Banking Decree of 1872 provided for
the legal framework. But again the undertaking was not successful.
Only four banks could be established, with rather reluctant merchant
houses as shareholders and only after considerable pressure by the
government. The failure in 1874 of the merchant house of Ono,
which was one of the founders of the First National Bank of Tokyo
(Tokyo Daiichi Kokuritsu Ginkò ), interrupted the promotion of the national
47
48
49
50
Cf. Tamaki, supra note 43, at 25 et seq.; Kanno, supra note 34, at 110 et seq.
Cf. Kanno, supra note 34, at 249; Pauer, supra note 34, at 111.
Tamaki, supra note 43, at 27.
Cf. Tamaki, supra note 43, at 28–39.
345
bank system, and inflation as well as a depreciation of notes issued
by the national banks further aggravated the problems.51 To prevent
a virtual collapse of the national banking system, the National Banking
Decree was substantially amended in 1876.52 Under the revised decree,
banks had to be organized as joint stock companies. This approach
finally proved to be successful.
The decree stipulated that a minimum of five shareholders were
necessary for the foundation of such a corporation (Art. 1). Shares
had a face value of 100 yen (Art. 5). They could be acquired by
everyone and could be freely transferred with the permission of the
directors (Art. 5). Each share provided for the same voting right and
the directors shareholders were elected by the shareholders assembly (Art. 2). With these national banks, there was a limited liability
established in the National Banking Decree (Art. 5, 15). Therefore,
most Japanese historians regard the national banks as the first joint
stock corporations in Japan.53 They were certainly the first modern
enterprises in Japan and had a significant impact on the future growth
of this form of enterprise in other sectors of the economy.
By 1880 there were more than 150 national banks in operation.
Somewhat surprisingly, most of them were not founded by merchants
but by samurai, whose feudal stipends after 1876 were compulsorily
converted into government bonds, which they then invested in banks
as founding capital. Thus the samurai became the driving force for the
establishment of new banks. Banks were now allowed to issue their
own inconvertible bank notes, and they began to be profitable. Besides
the national banks, a growing number of private banks were founded
during the 1880s, some of which were big city banks like the Mitsui
Bank (the first private bank), but most of which were rather small
local banks.54 Around the turn of the century some 1,800 private
51
Tamaki, supra note 43, at 33.
Kokuritsu ginkò jòrei, reprinted in: Òkura-Shò [Ministry of Finance] (ed.), Meiji
zaiseishi [The History of Finance in the Meiji Period] Vol. 13, at 31–57 (1905).
53
Cf. N. Takamura, Kaisha no tanjò [The Birth of the Corporation], at 41 (1996);
T. Ueda, Nihon ni okeru kabushiki kaisha no kigen [The Origins of Joint Stock Corporations
in Japan], 2 Shògaku Kenkyù (Hitotsubashi Daigaku) No. 3, at 838 (1922); T. Yui,
Wagakuni kaisha kigyò no senkuteki keitai [Early Types of Japanese Enterprises], 10 Keiei
Ronshù (Meiji Daigaku) No. 4, at 142 (1963); A. Moriizumi, Nihon shihon-shugi sòseiki
ni okeru kaisha seido [Corporations at the Beginning of Japanese Capitalism], 25
Hògaku No. 2, at 82 (1961).
54
Cf. Tamaki, supra note 43, at 40–45.
52
346
banks were in operation, mostly financed by local landowners and
businessmen. They served as a crucial link to channel local savings
into national projects.55
The difficulties experienced by the kawase kaisha were shared by
other enterprises in the form of joint stock companies outside the
banking industry, referred to as gappon kaisha or shimei kaisha. These
too were legally not—or at least not sufficiently—defined, and accordingly the scope of liability of the shareholders in case of business
failure was by no means clear.56 This actually did not change until
1893, when the “Old Commercial Code” went into force.57 Only
then did the stock corporation in a modern sense (kabushiki kaisha)
become legally firmly established.
(3) Success of the Stock Corporation
However, the uncertainties about liability in case of business failure
obviously did not mean that the government policies in promoting
the company system had not been successful, although it caused considerable confusion when the deflationary Matsukata reforms resulted
in numerous corporate failures. The number of companies decreased
between 1882 and 1885 from 3,336 to 1,279, but as their total capital did not decrease it seems that many insolvent companies were
absorbed by healthier ones.58 The development can be seen in the
following table, which does not differentiate between the different
types of companies according to the situation before 1893:
Table 1
Increase of Companies Between 1881 and 1899
Year
Number of Companies
Year
Number of Companies
1881
1882
1883
1884
1885
1,803
3,336
1,772
1,298
1,279
1891
1892
1893
1894
1895
4,306
4,507
4,133
2,104
2,458
55
Cf.
et seq.
56
Cf.
57
See
58
Cf.
Hirschmeier & Yui, supra note 9, at 89; Crawcour, supra note 9, at 391
Fukushima, supra note 40, at 184.
infra 2. b).
Hirschmeier & Yui, supra note 9, at 90.
347
Table 1 (cont.)
Year
Number of Companies
Year
Number of Companies
1886
1887
1888
1889
1890
1,655
2,038
2,593
4,067
4,296
1896
1897
1898
1899
1900
4,595
6,113
7,044
7,631
8,598
Source: E. Pauer, supra note 34, at 125 with further references.
Among other things, the table shows that when the corporation law
in the Old Commercial Code finally went into force in 1893, a large
number of companies had already been in full operation for years.
But it was not until the promulgation of this code that there was a
clear legal distinction between three different types of companies.
This raised the question of how to treat the various types of existing
companies under the new regime.
The Commercial Code Enforcement Ordinance (Art. 5)59 stipulated
that every company already incorporated at that time had to register
within six months of the enforcement of the Old Commercial Code,
which went partly into effect on July 1, 1893 (including the sections
on companies).60 The registration had to be done according to the
appropriate type of company provided for in the code.61 Obviously,
many private undertakings that had been counted before 1893 as
commercial companies did not register or qualify for registration as
companies in the sense of the code and with the advantage of a limited liability, hence the reduction in the statistical numbers between
1893 and 1894 in the above table.
Artisans, smaller merchants, etc., continued in the traditional way
as private or family-based undertakings. A survey in 1884 of nongovernment factories showed that of 1,981 establishments, more than
half were located in rural villages and over a third had no more
than five workers.62 The bigger merchant houses such as Mitsui, for
example, continued to do business on a partnership basis with members
59
Shòhò jisshi jòrei, Ordinance No. 59 of 1890.
See infra 2. a).
61
These obviously rather complicated and somewhat unclear proceedings are
described in greater detail by Fukushima, supra note 40, at 189–192.
62
Cf. Crawcour, supra note 14, at 613.
60
348
of the widespread family acting as partners. They increasingly used
the new legal forms provided for in the code of limited partnership
companies ( gòshi kaisha)63 and, to a lesser degree, the general partnership companies ( gòmei kaisha).64
Modern industrial undertakings were to a growing extent founded
in the form of stock corporations.65 During the Matsukata reform
deflation stock corporations did comparatively well, and especially
after the end of the recession an increasing number of successful
stock corporations besides banks were founded in the fields of cotton spinning and railways. These companies already had several hundred shareholders on average.66 The stock corporation soon developed
into the most important form of enterprise in Meiji Japan, as can be
seen when one looks at the paid-in capital of the three different
types of companies. After the Sino-Japanese War (1894–95) their
number and their capitalization soared: in the years between 1895
and 1910, the capital of the stock corporations on average accounted
for nearly 90 percent of paid in capital.67
An interesting question is why the stock corporation rather than
other forms of companies became the vanguard of modernization.
Besides the general advantages of that form of enterprise cited at
the beginning of this chapter, some specific historical aspects have
obviously played a role in Japan.68 The fact that the samurai became
active in banking because they could invest their pensions there has
already been mentioned. This was facilitated especially through
Shibusawa, who promoted the idea that, in contrast to the occupation
of merchant which was regarded as the lowest of the four social
classes in Tokugawa times,69 employment with a modern industrial
stock corporation was honorable, brought a great deal of responsibility,
63
This form corresponds to the German Kommanditgesellschaft; another English
translation is “incorporated limited partnership”.
64
This form corresponds to the German Offene Handelsgesellschaft, another English
translation is “incorporated partnership”. The form of a private company limited,
the yùgen kaisha (which corresponds to the German Gesellschaft mit beschränkter Haftung),
was first introduced in 1938; see infra III.2.b).
65
For an overview of the development of the different types of companies from
1893 onwards, see infra Table 3 in the Appendix.
66
67
Cf. Fukushima, supra note 40, at 190–191; Pauer, supra note 34, at 115, 126–127.
68
These arguments are dealt with extensively by Pauer, supra note 34, at 118–122,
128.
69
The others were samurai, artisans, and peasants.
349
and was serving the national needs in building a modern economy.
In general, the Meiji government had been deliberately careful to
apply traditional concepts and terms to the new form of enterprise
it wanted to popularize. For example, the term kabu, which was used
to translate the English expression “share”, had its origin in the traditional Tokugawa partnerships where it described the participation
in a guild, the kabu nakama.70
d) Stock Exchanges
Between 1875 and 1877 the government issued bonds on a largescale basis, and it needed to create a market for these bonds. Most
of the bonds were given to the samurai as compensation for their
stipends; these resources had to be mobilized.71 In 1878 the first
stock exchanges were opened in Tokyo and Osaka. The exchanges
were organized as joint stock companies and their number grew
rapidly. In 1898 some 46 exchanges were in operation.
As with the regulation of the banks and other corporations, the
development of the stock exchange was rather lively.72 Two years
before the formation of the first exchanges, rules ( jòrei ) for the trading in shares were promulgated that were shaped after the Rules of
the London Stock Exchange.73 In 1878 they were replaced by new
rules regulating the exchanges74 which stipulated that they had to be
organized as joint stock companies licensed under the Ministry of
Finance. The exchanges were run privately and were generating
profits. However, in 1887 a new ordinance was issued, according to
which exchanges were no longer allowed to be run as stock companies but had to be organized as associations of their members.75
As a consequence, existing exchanges had to be liquidated and new
ones had to be founded. The result was significant confusion and
70
Cf. Tamaki, supra note 43, at 36.
72
Cf. K. Kanzaki, Shòken torihiki-hò [Securities Exchange Law], at 56 et seq. (1987);
C. Nakajima, The Experience of Japan in Adoption and Adaption, in: Emerging
Financial Markets and the Role of International Financial Organizations, at 393 et
seq. (Norton & Andenas, eds. 1996).
73
Kabushiki torihiki jòrei [Stock Transaction Ordinance], Imperial Ordinance No.
107 of 1884.
74
Kabushiki torihiki-jo jòrei [Stock Exchange Ordinance], Imperial Ordinance No.
8 of 1878.
75
Torihiki-jo jòrei, [Exchange Ordinance], Imperial Ordinance No. 11 of 1887.
71
350
considerable opposition to these changes. To cope with the situation,
a new Exchange Law was introduced in 1893 which superseded the
ordinance of 1887.76 The law was based on extensive comparative
preparatory work in Europe and the U.S. Its enactment reintroduced
the possibility of establishing an exchange as a joint stock corporation, but the form of a membership organization also remained viable.
2. Commercial and Corporate Law
The general political and economic development described above is
the background against which the following legislative undertakings
of the Meiji government must be seen.
a) The Codification Process
The legislative process of compiling a commercial law for Japan
started in the mid-1870s.77 In the beginning, the legislative efforts
were concentrated on compiling a company law, which was seen as
crucial for the further promotion of companies as a motor of future
growth.78 This task later broadened to the creation of a complete
general commercial code, for it was thought more appropriate to
regulate commercial and corporate law together. The first draft for
a Company Law (Kaisha jòrei )79 was completed in July 1875 by the
Ministry of Internal Affairs (Naimu-shò ), whose aim was to promote
the development of industry to create “a wealthy nation and a strong
76
Torihiki-jo-hò, [Exchange Law], Law No. 5 of 1893.
For a detailed description of the legislative process, see Fukushima, supra note
40. This section draws on that excellent study to a considerable extent. One minor
correction should be made: throughout the English text, the name of the German
legal scholar Hermann Roesler who played an important role in drafting the code (see
infra) is misspelled as “Rössler”. For a comprehensive report of the legislative history, see K. Shida, Nihon shòhòten no hensan to sono kaisei [ The Compilation and
Revisions of the Commercial Code of Japan] (1933); K. Saegusa, Meiji shòhò no seiritsu to hensen [Development of the Meiji Comercial Code) (1992).
78
See infra at sec. c) for an analysis of the development of corporate law and the
rise of the corporations; a comprehensive description of the development of corporate reporting can be found with J.L. McKinnon, The Historical Development
and Operational Form of Corporate Reporting Regulation in Japan (1986).
79
For a reprint of the draft and an analysis, see K. Mukai, Meiji hachinen naimushò kaisha jòrei sòan [The 1875 Draft of the Company Law by the Ministry of Internal
Affairs], 44 Hògaku Kenkyù (Keiò Daigaku) No. 9, at 80 (1971).
77
351
military” ( fukoku kyòhei ). Even at that time Japan had a wide variety of choices available from which to assemble its new laws.80 The
Company Law draft was based on the translation of British laws.81
However, the Cabinet Legislation Bureau (Dajòkan Hòsei-kyoku) rejected
the draft on the grounds that it was based exclusively on the British
model without taking other legal regimes into consideration.82
To achieve the creation of a modern commercial law as quickly
as possible, the Japanese government turned in 1881 to the German
lawyer Carl Friedrich Hermann Roesler (1834–1894) and asked him
to prepare a draft of a commercial code for Japan. Roesler, who
had previously taught public law and national economics at the
University of Rostock, first came to Japan in 1878 as a legal adviser
to the Japanese Foreign Ministry.83 He had already participated as
a counselor of the Japanese government in the deliberation of the
Constitution of Imperial Japan, the so-called Meiji Constitution, which
was promulgated in 1889.84 In January 1884 Roesler presented a
comprehensive draft consisting of 1,133 articles.85 The draft included
general commercial law as well as corporate law and provisions on
insolvency, commercial jurisdiction, and arbitration.86
Before the presentation of the draft, by 1882 the Matsukata
reform mentioned above had thrown the Japanese economy into a
recession which resulted in a number of corporate failures. Because
80
J.V. Feinerman, Meiji Reception of Western Law, in: Wege zum japanischen
Recht, Festschrift für Zentaro Kitagawa zum 60. Geburtstag, at 96 (Leser & Isomura,
eds. 1992).
81
K. Mukai, Kaisha sòan no hensan shiki [The Initial State of Drafting a Company
Law], 22 Hòseishi Kenkyù 16 (1972).
82
T. Toshitani & R. Mizubayashi, Kindai nihon ni okeru kaisha-hò no keisei [Formation
of Company Law in Modern Japan], in: Shihonshugi-hò no keisei to tenkai [Development
of Capitalistic Law], at 85 (R. Takayanagi & I. Fujita, eds. 1973).
83
For the personal background of Hermann Roesler, see P.-C. Schenk, Der deutsche
Anteil an der Gestaltung des modernen japanischen Rechts- und Verwaltungswesens
[The German Role in Shaping Modern Japanese Law and Administration], at 102
et seq. (1997); S. Itò, Roesler shòhò sòan no rippòshiteki igi tsuite [On the Historical
Meaning of the Commercial Law Draft by Roesler], in: Hòsei ronshù [Essays on
Legal History], at 191 et seq. (Shiga & Hiramatsu, eds. 1976).
84
A good overview can be found with J. Banno, The Establishment of the
Japanese Constitutional System; J.A.A. Stockwin trans. (1992).
85
Shòhò sòan; for the German original text, see H. Roesler, Entwurf eines
Handelsgesetzbuches für Japan mit Kommentar (Tokyo 1884, Reprint 1996); for
the Japanese translation, see Shihò-shò [Ministry of Justice, transl.], Shòhò sòan [Draft
of the Commercial Code] 2 Vol. (1884).
86
For further details, see infra b).
352
of the lack of regulations there was no sufficient limitation of liability
of shareholders in case of insolvency. Against all their expectations, the
shareholders were held responsible for the losses, with dire consequences
for their private assets. This in turn discredited the whole company
system promoted by the government in the course of its modernization program since the Restoration. The government quickly realized the necessity of introducing a corporation law as soon as possible.
In 1886 it came up with a draft of the “Commercial Company Law”
(Shòsha-hò) and submitted it to the Senate (Genrò-in).87
However, although the Senate passed the bill in early 1886, it was
never promulgated. On the contrary, the Japanese Foreign Ministry
and the government stopped the promulgation process immediately
afterwards. The reason for this seems to be that in May of the same
year the first multinational conference on renegotiating the unequal
treaties was held in Tokyo, where Germany and Great Britain presented a joint proposal for a possible renegotiation.88 As a prerequisite, the proposal demanded, among other things, the introduction
of a comprehensive commercial code in Japan. Therefore, the Foreign
Ministry wanted to concentrate all efforts on the compilation of a
general code rather than to pursue the promulgation of a separate
corporate law code. In August 1886 the Ministry set up the “Legislation
Investigation Committee” (Hòritsu Torishirabe I’inkai ), composed of
Japanese politicians and bureaucrats and various foreign advisers,
and requested it to urgently proceed with the compilation of an adequate draft.89 But that committee never finished its work. Roesler
joined the committee in 1887.
Because of much opposition to his policy on the renegotiating of
the treaties, Foreign Minister K. Inoue (1835–1916) was forced to
resign in September of 1887. He was reproached for being too lenient
towards foreign demands. Shortly afterwards the responsibility for
the compilation process was transferred to the Ministry of Justice, the
old committee was dissolved, and a new one under the guidance of
Justice Minister A. Yamada (1844–1892) was established. For political reasons, Yamada did not allow Roesler to take part as an official
member in the discussions of the committee; he was only active as
87
See Toshitani & Mizubayashi, supra note 82, at 88; Fukushima, supra note 40,
at 176 et seq.; Takamura, supra note 53, at 68.
88
Saegusa, supra note 77, at 70; Fukushima, supra note 40, at 178–179.
89
Saegusa, supra note 77, at 73.
353
a draftmaker.90 One year later, in November of 1888, a partial draft
of the Commercial Code was completed. Together with the drafts
of the Civil Code, the Civil Procedure Code, and the Court
Organization Law, it was submitted to the Senate at the end of that
year.91 The complete draft of the Commercial Code was finished in
1889. It was based on the work of Roesler but had been significantly
altered, which led to an intense dispute between Roesler and the
committee.
The Senate approved the bill, which was supposed to enter into
force on January 1, 1891. However, doubts had arisen in the meantime
as to whether a timespan of less than a year between the promulgation
and the coming into effect of such an important law was suitable
for the business community. In December of 1889 the Tokyo Chamber
of Commerce (Tòkyò Shòkò-kai ) requested a postponement through
N. Nakajima, the president of the House of Representatives (Shùgiin),
and H. Itò, the president of the House of Councilors (Kizokuin). The
postponement was approved by both Houses of the Imperial Diet
(Tèkoku Gikai ), which had been founded in 1889 according to the
new constitution of that year. It was argued that it would be very
difficult for the merchants addressed in the law to understand and
adapt to the new regulations.92 Furthermore, it was regarded as
impractical for the Commercial Code to enter into force before the
new Civil Code.93 The fact that the code did not take the traditional
Japanese commercial practices into account was seen as a severe disadvantage, as was the fact that not even the customary technical
terms had been used in drafting the code.94 Another complaint was
that the provisions were often contradictory and that there was no
coherent terminology used. In general, the opinion gained upper
hand in the discussion that first there should be the trade practice,
with the regulation of that practice to follow as a second step. Another
90
Id. at 79; Itò, supra note 83, at 211.
92
93
In 1890 an earlier version of the Civil Code influenced by French legal concepts
had been promulgated, but because of disputes between the different schools of legal
thought it was never enacted; see A. Eckey-Rieger, Der Kodifikationsstreit zum
japanischen Bürgerlichen Gesetzbuch [The Argument of the Different Schools about
the Japanese Civil Code] (1994); R. Igeta & E. Yamanaka & H. Ishikawa, Nihon
kindai hòshi [Legal History of Modern Japan], at 160 et seq. (1982); supra Chap. 3.1.
94
M. Fukushima, Nihon shihonshugi no hattatsu to shihò [The Development of Japanese
Capitalism and Private Law], at 118 (1989).
91
354
reason for the delay may have been the reluctance of the government to pursue the enforcement of the bill because of disagreement
among various governmental departments about how to handle the
treaty revision negotiations.95
Both Houses of the first Imperial Diet passed the bill in 1891 and
set the first of January, 1893 as the date for the enforcement of the
Commercial Code. However, further complaints caused the third
Imperial Diet to decide in 1892 to postpone the coming into effect
of the Commercial Code for another three years to 1896, the year
the Civil Code was scheduled to go into force. The government
established a Code Enforcement Investigation Committee (Hòten Shikò
Tokubetsu I’inkai ), under the chair of the politician K. Saionji
(1849–1940), to take care of the criticisms of the draft and to decide
which date was best for the enactment of the draft. After some deliberation, the committee proposed that only the sections of the draft
relating to the Company Law (Book 1, Chap. 6), the Bills and Notes
Law (Book 1, Chap. 12), and the Bankruptcy Law (Book 3) needed
to be put into force as soon as possible. A corresponding bill was
presented to the fourth Imperial Diet some time later in 1892. The
Diet passed the bill after minor alterations in both Houses.96 After
some ten years of deliberation and intense discussion, the legislative
odyssey had ended—at least partly and for a limited time only—
and a rudimentary version of the Commercial Code, the so-called
Kyù-shòhò or “Old Commercial Code”, came into force on July 1,
1893. The reason for the enactment of at least the aforementioned
three parts of the original code was the same as that which had driven the discussion about the introduction of a company law. It had
become increasingly clear that without a proper legal basis with
respect to structure and supervision of the corporation, as well as a
clearly defined limitation of liability, the whole company system could
not work properly. An indispensable part of a functioning system
was orderly insolvency proceedings.
Five years later, on July 1, 1898, the missing parts went into force—
quite surprisingly and rather by historical accident, as the new Shòhò had
already been drafted. It was, accordingly, in force for just one year:
on June 15, 1899, the Kyù-shòhò was repealed and a new Commercial
95
Cf. Fukushima, supra note 40, at 181.
A detailed description of the difficult passage of the law can be found with
Fukushima, supra note 40, at 181–183; Saegusa, supra note 77, at 115–117.
96
355
Code, the Shòhò, promulgated on March 9, 1899, came into effect
on June 16. This will be described in greater detail in a moment.97
Only the Bankruptcy Law (Book 3) remained in force until 1922
when it was replaced by the Bankruptcy Act, the Hasan-hò.98
b) Characteristics of the Kyù-shòhò of 1893
As has been mentioned above, the Kyù-shòhò 99 was to a significant
extent based on the 1884 draft compiled by Roesler, although the
German scholar was no expert on commercial law in general or corporate law in particular. In the introduction to his draft, he laid out
the guiding principles for his work.100 Roesler was convinced that,
if Japan wanted to catch up with the “civilized” nations and create
a legal foundation for a modern economy, Japan needed above all
a commercial law which combined the best and most modern solutions
that could be regarded as shared and generally accepted rules of trade
in those nations.101 His draft was therefore a piece of extensive comparative law with the express exclusion of traditional Japanese law
and commercial customs, which he regarded as unsuitable for this
purpose. Instead, Roesler tried to combine elements of the French
Code de commerce of 1870 and the German Allgemeines Deutsches
97
See infra at c).
Law No. 71 of 1922 as amended by Law No. 79 of 1991. For an English
translation, see EHS, Vol. II., LU, No. 2340.
99
Law No. 32 of 1890. Reprinted in: Gendai Hòsei Shiryò hensankai (ed.), Meiji
kyùhò shù. (1983); for an English translation, see Shihò-shò [Ministry of Justice] (ed.),
Commercial Code of Japan (1893).
100
See Roesler, supra note 85, at I et seq.
101
The originals states this as follows:
“Bei der Abfassung eines Handelsgesetzbuches für Japan treten vor allem zwei
Gesichtspunkte hervor; einmal, dem Handel und der Industrie Japans eine feste
und erschöpfende Rechtsgrundlage zu geben, und so dann, die commerzielle und
industrielle Tätigkeit der Japanischen Nation auf gleichen Fuss mit den übrigen
Handelsnationen der Welt zu bringen. Die Vereinigung dieser beiden Gesichtspunkte
ergibt die Aufgabe, ein Gesetzbuch herzustellen nach den besten und neuesten
Principien, welche als gemeinsame und allgemein anerkannte Handelsgrundsätze
der civilisierten Nationen angesehen werden müssen.” [“In creating a commercial
law code for Japan, there are primarily two aspects: first, to provide Japan’s commerce and industry with a firm and exhaustive legal foundation; and second, to
bring the Japanese nation’s commercial and industrial activities on even ground
with the other commercial nations of the world. The combination of these two
aspects results in the task of producing a code using the best and newest principles that are respected as the common and generally accepted fundamentals of
trade among civilized nations.” ] (id. at I).
98
356
Handelsgesetzbuch of 1861 (ADHGB. Special emphasis was laid on the
newly compiled Egyptian Code de commerce and Code de commerce maritime of 1874 as well. In form, the Kyù-shòhò followed the French
model; in substance, it was more often than not shaped on German
principles of commercial law as laid down in the ADHGB.102
The Kyù-shòhò was divided into three books. Book 1 dealt with
commercial law in general. In 12 chapters it contained (among others) regulations on merchants, commercial transactions, commercial
partnerships, corporations and joint trade associations, forwarding
agencies, insurance, and regulations on bills and notes. Book 2 was
on maritime law and Book 3 regulated bankruptcy proceedings.
The section on corporate law introduced some far-reaching changes.
The most important of these was the introduction of limited liability for shareholders, who until that time could have been held liable
with their private property in the case of an insolvency of their corporation. This new freedom came with a price: the Kyù-shòhò stipulated that entrepreneurs had to obtain governmental approval for
the subscription and a license for the incorporation of a stock corporation (Art. 156, 159, and 166 of the Kyù-shòhò ). The reason for
this was distrust. If merchants could escape future business liabilities, the government wanted at least to screen the entrepreneurs in
an effort to keep out obvious crooks and unscrupulous speculators,
thus enhancing trust in the new company system it was promoting
and which had suffered a severe loss of reputation during the recession following the Matsukata reform.
Interestingly, the principle of licensing was not proposed by Roesler.
On the contrary, he thought it outdated and preferred the more
flexible principle of mere registration of share companies without
prior governmental approval. This system had become increasingly
common among advanced nations by the 1870s and he had proposed
it in his draft of 1884.103 Obviously, the cumbersome licensing procedure had been introduced by the Japanese committee members
during the revision of the draft. There seems to have been a shared
opinion among Japanese legal scholars at that time who, though they
were quite aware that the system to be adopted was outdated, nevertheless thought it more appropriate for the early state of Japan’s eco-
102
103
Cf. Schenk, supra note 83, at 105.
Roesler, supra note 85, at 196–197.
357
nomic development.104 Roesler later changed his mind, and in his
comment on the license system in 1885 he also recommended it on
the grounds that it might enhance investor protection. He hoped
that this governmental protection would make it possible to promote
the joint stock corporation better.105 In practice, however, the license
system was not strictly enforced afterwards. Only 13 out of 310 companies were denied a license.106
The Kyù-shòhò recognized three legal forms of enterprise: the kabushiki
kaisha (stock corporation), the gòmei kaisha (general partnership), and
the gòshi kaisha (limited partnership). In 1896 there were 2,585 stock
corporations, 1,667 limited partnerships, and 344 general partnerships
registered in Japan.107
The stock corporation as regulated in the Kyù-shòhò had three organs:
the general meeting (sòkai ), the directors (torishimari-yaku),108 and the
auditors (kansa-yaku). In contrast to the present status of regulation,
where the general meeting is only competent for matters which have
been assigned to it expressly by the law or the corporate charter,
the Old Commercial Code designated an unlimited competence for
the general meeting in corporate affairs (cf. Art. 202 Kyù-shòhò ). It
appointed the directors. A minimum of three directors was mandatory.
Every director had the individual power to represent the corporation
legally (Art. 143, 186 Kyù-shòhò ), whereas today only the especially
empowered directors may do so.109 The auditors had more extensive
rights and duties than today. They were responsible not only for
supervision of the directors with respect to the lawfulness of their
business activities—as today—but also to the question of whether
their activities were compatible with the interests of the shareholders
(Art. 192 Kyù-shòhò ). A serious limitation in their ability to control was
the fact that—in contrast to the present situation—there was nothing to prohibit an auditor from simultaneously acting as a director.
104
Cf. Fukushima, supra note 40, at 186 et seq. with further references, and
Murakami, supra note 19, at 1, 4; Toshitani & Mizubayashi, supra note 82, at 115.
105
Toshitani & Mizubayashi, supra note 82, at 114.
106
R. Miwa, Shòhò seitei to tòkyò shòkò kaigisho [The Tokyo Chamber of Commerce
and the Formation of the Commercial Code], in: Shihonshugi no keisei to hatten [The
Formation of Capitalism and its Development], at 157 et seq. (H. Òtsuka, ed. 1968);
Takamura, supra note 53, at 175.
107
Takamura, supra note 53, at 186.
108
This organ was broadened in 1950 when the board of directors (torishimari yakkai )
was introduced as a controlling device.
109
Cf. Art. 261 of the present Shòhò.
358
At the beginning, a minimum of three auditors had to be appointed
by the general meeting (Art. 191 Kyù-shòhò ); for practical reasons,
this number was shortly afterwards reduced to two.110
The gòmei kaisha (general partnership) was a company whose members
could be held liable for the debts of the company (Art. 74 Kyù-shòhò ).
It was not necessary to obtain a license from the government for
establishing this kind of company. As a trade name, at least the family name of one of its members had to be used (Art. 75 Kyù-shòhò ).111
This type of company had no legally required specific organs. In
principle, every partner of the company had equal legal rights and
duties with respect to running the company (Art. 88 Kyù-shòhò ).
The gòshi kaisha (limited partnership) had basically the same general structure as the general partnership. Therefore, the provisions
of the Old Commercial Codes relating to the latter were applied
correspondingly to the limited partnership (Art. 137 Kyù-shòhò ). The
code stipulated only a few special rules for the limited partnership.
The main distinction from the general partnership was—as it still is
today—that its partners could choose the privilege of limited liability if they wished to do so (Art. 136 Kyù-shòhò ).
c) Criticism and the Compilation of the Shòhò of 1899
Although the Kyù-shòhò, and particularly the enactment of its corporate law chapter, was an overdue step in the right direction of
creating a legal infrastructure for the fast-growing economy in Meiji
Japan, criticism was widespread, especially in the business world.
The criticism that had been raised against the draft of the code,112
which was based among other things on the fact that the code did
not take the traditional Japanese commercial practices into account,
was revived because that criticism had not led to a revision of the
code but only to a postponement of its enactment as described above.
Furthermore, it soon became clear that the principle of licensing was
110
Cf. S. Otto, Handelsrechtliche Prüfung japanischer Aktiengesellschaften
[Financial Reporting of Japanese Stock Corporations under the Commercial Code],
at 11–13 (1993).
111
Gòmei kaisha is a translation of the French term société en nom collectif, which
refers to the French model of partnership regulated in the code de commerce of 1807.
The original meaning of the Japanese term gòmei is “correcting names”; cf. T. Suzuki
& A. Takeuchi, Kaisha-hò [Company Law], at 550 (3rd ed. 1994).
112
Cf. supra a).
359
too impractical and time consuming.113 It was increasingly regarded
as a serious hindrance to the future growth of the Meiji economy.
A special nuisance for the business community was the right of government officials under that system to conduct on-site inspections of
stock corporations.114 A further disadvantage of the company law
under the Kyù-shòhò was the fact that it did not provide for regulations on mergers. As a result, one of the companies that intended
to merge had to dissolve itself. According to Fukushima, it was primarily the Tokyo Chamber of Commerce with the assistance of
influential Chambers of Commerce of other towns that voiced concerns about the defects of the Old Commercial Code and petitioned
the Ministries as well as the Diet for reform in the mid-1890s.115
The government responded to this criticism. A new committee,
called the Investigation Committee for the Codes (Hòten Chòsa-kai ),
was established in 1893 within the Cabinet under the guidance of
Prime Minister Hirobumi Itò.116 Its tasks were to draft a revised
commercial code as well as a revision of the civil code. The committee had 50 members of varying professions. The famous entrepreneur Shibusawa was one of them; no foreign experts were invited
to take part as members. For the revision of the commercial code three
members of the committee were appointed: Kenjirò Ume, Keijirò
Okano, and Yoshi Tabe. Masaharu Kato and Kòtarò Shida assisted
the draftmakers. Kenjirò Ume (1860–1910), the leading figure within
the drafting group, had studied French law in Lyon after graduation
from the Law School of the Ministry of Justice (Shihò-shò Hògakkò ). After
coming back to Japan in 1890, he became professor of the Law School
of the University of Tokyo at the age of 30. He was also active in
revising the civil code. Keijirò Okano (1865–1925), too, was a professor of the Law School of the University of Tokyo. He stood in
the tradition of the so-called “English School” and was regarded as
the pioneer of the academic study of commercial law in Japan.
Quite contrary to the repeatedly postponed enactment of the Kyùshòhò with its twisted legislative history, the new Shòhò came into force
113
Cf. Miwa, supra note 106, at 157; Takamura, supra note 53, at 177; Saegusa,
supra note 77, at 132.
114
115
Id. at 192–193.
116
It was established under the Imperial Ordinance No. 11 of 1893, Hòten chòsakai kisoku [Regulation of the Investigation Committee for the Codes]; Shida, supra
note 77, at 86; Saegusa, supra note 77, at 127.
360
with remarkable speed. As mentioned before, the law was promulgated on March 9, 1899, and came into effect on June 16 of that
year. It is still in force today, but was substantively amended in 1911,
1938, 1950, and afterwards, as will be described later.
d) Characteristics of the Shòhò
For its fundamental revision of the Kyù-shòhò, the drafting group worked
more closely with the German law as a model, as Roesler had
done. Again the ADHGB was consulted intensely.117 With respect to
corporation law, special attention was paid to the recently completed
reform of the regulations on the stock corporation in Germany, the
so-called Aktiennovelle of 1870, in its revised version of 1884.118 Although
the new German Handelsgesetzbuch of 1897 was more modern than
the ADHGB of 1861, which it had replaced, it was barely taken into
consideration by the committee. According to Sugawara, one reason was the lack of time, for the new German code became public
only when the revision in Japan was well underway. Another reason was that the new German law was regarded as unsuitable for
the actual situation of the Japanese economy, which was not yet as
developed as the German at that time.119
The Shòhò was originally organized in five books:120 Book I: General
Provisions; Book II: Commercial Companies; Book III: Commercial
Transactions; Book IV: Bills; and Book V: Maritime Commerce. There
are some major differences between the Kyù-Shòhò and the Shòhò.
First of all, the new code took the complaints about the disregard
of Japanese trade customs into account. Art. 1 of the Shòhò states
that as long as there are no deviating provisions in the code, commercial affairs will be regulated by trade customs and pertinent customary law. In case there is no such law and the Commercial Code
provides no regulation for a specific question, the provisions of the
117
K. Sugawara, Kigyò-hò hatten ron [Essays on the Development of the Laws of
Enterprise], at 14 (1993).
118
K. Òsumi, Kabushiki kaisha-hò hensen ron [Essays on the Changes of the Laws
Regarding the Stock Corporation], at 96 (1987).
119
Sugawara, supra note 117, at 14.
120
Information on the current version of the code can be found supra in note 3.
For an English translation of the original version of the Shòhò. see L. Lönholm, The
Commercial Code of Japan Translated (1898); for a German translation, see id.,
Japanisches Handelsgesetzbuch (1898).
361
Civil Code shall be applied. It was thus made clear that in commercial affairs, trade customs have priority over the Civil Code.
From a dogmatic point of view, the Shòhò brought an improvement
in its clarification of commercial law as a special law part of civil
law.121 As mentioned before, the section on bankruptcy in the Kyùshòhò remained in force; the Shòhò had no relevant provisions. Insolvency
law had thus become a special branch of law, as was further
exemplified when the new Bankruptcy Law was enacted in 1922.
With respect to corporation law, the most important change was
the abolition of the licensing system and the introduction of the registration principle for the incorporation of stock corporations. The
committee gave the following reasons for that fundamental change:
it saw no further justification for differentiating between stock corporations and limited partnerships or general partnerships respectively which could be founded without prior government approval.
Furthermore, it wanted to join the international trend towards the
registration principle and to take into account the wishes and needs
of the business community whose reasoning—that the licensing system was too burdensome, and especially too time-consuming—had
convinced the drafters.122
A second important amendment was the introduction of provisions
regulating mergers in the code (Art. 223 Shòhò). Apart from this and
the change with respect to the founding of a stock corporation, its
legal structure was not significantly changed in the company law under
the Shòhò; only minor amendments were made,123 such as auditors no
longer being allowed to serve simultaneously as directors of the corporation (Art. 184 Shòhò ). In contrast to today, directors had to be
shareholders (Art. 164 Shòhò ). The distribution of power among the
three organs of a stock corporation—the stockholders’ meeting, the
directors, and the auditors—was not changed. From a legislative viewpoint, this meeting was the most important organ of the three and
therefore it had competence for all matters concerning the business of
the corporation.124 The system worked—in contrast to the present
121
Cf. Shòhò shùsei-an riyùsho [Foundation of the Revised Draft of the Comercial
Code] at 105; Miwa, supra note 106, at 157–158.
123
A good description can be found in: M. Kitazawa, Kabushiki kaisha no shoyù.
keiei. shihai [Ownership, Management, and Control of the Stock Corporation], in:
Gendai-hò [Present-day Law] Vol. 9, at 67 et seq. ( J. Yazawa, ed. 1966).
124
Cf. Shòhò shùsei-an riyùsho, supra note 122, at 139.
122
362
situation—because there were comparatively few small investors. Most
of the corporations were family-held with only a few major shareholders; the role of the auditor was often played by a big shareholder.125
A third major change with respect to company law was the introduction of a new legal form of company, the kabushiki gòshi kaisha
(partnership limited by shares or joint stock limited partnership). It
closely corresponded to the German Kommanditgesellschaft auf Aktien.
However, this type of company never flourished in Japan. At any
given time there were never more than some 50 companies registered using this legal form. It was accordingly abolished in 1950.
The main reason for the failure was the complicated structure of
the kabushiki gòshi kaisha in comparison to the other legal forms provided for in the Commercial Code.
4.3
Rise and Fall: 1900–1945
1. High Growth, Depression, and War Economy
The Meiji era ended in 1912 with the death of the Meiji Tennò. The
ensuing Taishò era only lasted until 1926; it was followed by the
Shòwa era, which officially ended in 1989 when the Shòwa Tennò died.
However, because of the radical political change that accompanied
the year 1945, we will structure the first post-Meiji section through
the shift into a war economy in the early 1940s.
a) Political and Economic Developments
As mentioned at the beginning of this chapter, after two victorious
wars, the Sino-Japanese War in 1894–95 and the Russian-Japanese
War in 1904–05, Japan started to assemble a colonial empire and
became an imperialist nation. The occupation of Taiwan, the annexation of Korea in 1910, and the occupation of Manchuria in 1931–32
were steps towards the creation of a colonial empire, euphemistically
125
For the shifting role the shareholder played in Japanese stock corporations,
see M. Hayakawa, Shareholders in Japan: Attitudes, Conduct, Legal Rights and
their Enforcement, in: Japan: Economic Success and Legal System, at 237 et seq.
(H. Baum, ed. 1997).
rise and fall: 1900 ‒1945
363
called the “Greater East Asia Co-Prosperity Sphere” (Dai Tòa Kyòeiken),
that finally resulted in the outbreak of the Pacific War in 1941.
As a result of the victorious wars against China and Russia, Japan
had been able to completely restore its customs sovereignty by 1910.
Export taxes were abolished and import taxes introduced, a change
that immensely helped Japan’s infant industries.126 The colonial markets in Asia were forced open to the Japanese economy. In World
War I (1914–1918), Japan had only formally made a pact with the
Allied side and was not engaged in any military warfare. Instead,
its economy profited immensely by the war, leading to an export
boom as the European and American competitors engaged in warfare withdrew their products from Asian markets, which then became
dependent on Japanese exports. Shipping services and supplying the
Allied side added to a high influx of foreign exchange, which in turn
financed a new round of industrial expansion.127 In summary, all of
the three wars acted as “enormous stimuli for industrial expansion”,128
and the years from the mid-1890s until approximately the late 1910s
were years of rapid growth during which the foundations of the modern Japanese industrial organization were laid.
This changed after World War I, when Japan found itself in a
severe depression that lasted until about 1932. These years were characterized by a series of panics.129 The resumption of European and
American competition and the end of war-induced demands turned
the boom into a severe financial crisis which started with the stock
market crash of 1920. The so-called Ishii panic followed in 1922
after a trader collapsed because of heavy speculation in rice, which
then led to an ensuing collapse of a number of banks. In 1923 the
great Kantò earthquake struck, causing severe destruction in Tokyo
and the Kantò region. In 1927, problems of several banks—including the Bank of Taiwan—led to yet another financial panic and a
run on the banks. Nearly 40 banks were forced to close their doors.
The lifting of the gold embargo in 1930 together with the repercussions of the Great Depression of 1929 and a strict deflationary
126
128
129
A good description of this period can be found in: T. Nakamura, Depression,
Recovery, and War, 1920–1945, in: The Cambridge History of Japan, Vol. 6, The
Twentieth Century 455 et seq. (P. Duus, ed. 1988).
127
364
policy further hit the Japanese industry hard. Repeated massive falls
in prices and large-scale unemployment were the hallmarks of the
most severe depression in modern Japanese history.
Late in 1931, under the leadership of the new Finance Minister
Korekiyo Takahashi (1854–1936), the government initiated a crisis
management program. Japan left the gold standard and devalued its
currency. Interest rates were lowered and massive public investment
started, mostly in heavy industries and armament. Protectionist policies further helped to engineer a recovery. One of the results was a
rapid rise in exports which led to the first trade disputes with other
nations, especially with the U.S. and Great Britain. Governmentencouraged and legally aided cartels were formed in most industries
in an attempt to deal with the economic slump.130 The governmental control measures included the Industrial Organizations Law,131
the Export Union Law,132 and the Important Industries Control Law
of 1931,133 under which outsiders were forced to stick to cartel prices.
The cartels which were built up during these years continued to
exist after the depression was over.
The growing influence of the military after 1931 led to a forced
structural change with an orientation towards heavy and chemical
industries. Heavy industrialization was seen as the only way out of
the depression.134 A series of special laws were promulgated to promote the development of these industries, e.g., the Oil Industry Law
of 1934135 or the Automobile Manufacturer Law of 1936.136 Their
contents was similar: strict governmental control, such as approval
of yearly business plans; but also special governmental protection,
including tax exemptions, high tariffs on competing foreign products,
130
Cf. Nakamura, supra note 129, at 459; Y. Kanazawa, Sangyò-hò [Industrial
Laws], in: Nihon kindai-hò hattatsushi [The Historical Development of Modern Law
in Japan] at 287 (N. Ugai, ed. 1958).
131
Kògyò kumiai-hò, Law No. 69 of 1931.
132
Yushitsu kumiai-hò, Law No. 44 of 1931.
133
Jùyò sangyò tòsei-hò, Law No. 40 of 1931. The text of these three laws can be
found with S. Kojima, Wagakuni shuyò sangyò ni okeru karuteruteki tòsei [Monopoly
Control in the Major Industries in Japan] (1932) at 551 et seq.
134
Cf. M. Udagawa & S. Nakamura, Japanese Business and Government in the
Inter-war Period: Heavy Industralization and the Industrial Rationalization Movement,
in: Government and Business. Proceedings of the Fifth Fuji Conference 83 et seq.
(K. Nakagawa, ed. 1980).
135
Sekiyu-gyò-hò, Law No. 26 of 1934.
136
Jidòsha seizò jigyò-hò, Law No. 33 of 1936.
365
and other protectionist policies in their favor.137 By 1935 those specially promoted and largely military-oriented industries held some 50
percent of all production.138
In 1936 Takahashi, who had engineered the recovery while Finance
Minister, was murdered by a military assassination squad. Thereafter
the military openly influenced politics and the economy. In the late
1930s, two-thirds of the GNP was consumed by military spending.
In 1939 Japan introduced price and wage controls, and the country increasingly resembled a wartime controlled economy. The final
shift came with Japan’s entry into World War II in 1941. Thereafter,
its economy became a typical command economy for a country
engaged in warfare. The economic result is known: by the time of
its defeat in 1945, Japan had lost a quarter of its national wealth.139
However, even during those hard years of military command,
many roots for the rapid recovery in the 1950s and 1960s were
already being laid. Part of the wartime economy was an ever stronger
influence of the bureaucracy on the economy, an influence which
continued well into the postwar era along with its main tool, the socalled administrative guidance ( gyòsei shidò ), which became famous in
rebuilding Japan after the war. Other features were the enterprise
unions, the subcontractor system, and the seniority wage system,
mostly introduced during the 1930s and early 1940s.140
b) Rise of the Modern Corporation in Japan
During the growth years, the dual structure of the Japanese economy
had not changed significantly: the traditional industries still dominated
by far. The modern sectors were growing, but the number of modern
industries still remained small. In 1915, less than 10 percent of the
gainfully employed population was working in the modern sectors.141
Until World War I, the heavy industries had to be promoted and
nurtured by the government for policy reasons and largely did not
137
139
140
Cf. K. Odaka, Nikonteki ròshi kankei [ Japanese Labor Relationships], in: Gendai
nihon keizai shisutemu no genryù [ The Origins of the Modern Japanese Economic
System] at 156–157 (T. Okazaki & M. Okuno, eds. 1993).
141
138
366
attract investments.142 Only light industries like textiles (cotton spinning and silk reeling) were already firmly based on modern technology
and organization and showed a self-sustaining growth.143 On the
other hand, it was mainly the steady growth of the secondary industries that raised productivity and, as a result, the overall output. And,
although the absolute numbers were still small, the increase of companies—limited partnerships as well as stock corporations—was steady.
The enactment of the Shòhò in 1899 had significantly contributed to
this process, and companies were the most widely used legal forms.
In 1900 there were 4,254 stock corporations and 3,560 limited partnerships in business compared to 784 general partnerships.144 After
1945 the stock corporation became by far the most important form
of enterprise in Japan.
A look at the absolute numbers may be misleading. Though yet
small in number, the large, modern, and efficient companies, often
organized in the form of stock corporations, were increasingly able
to monopolize scarce capital and managerial talent. These enterprises showed the highest growth rates during the boom years and
were able to handle the depression years far better than the bulk of
small companies because of their vast resources, superior organization, and government promotion. If the Meiji era was the era of individual entrepreneurs acting as industrial pioneers, from the Taishò era
onwards professionally employed managers played an ever-growing
role. This second generation consisted mostly of well-trained college
graduates.145
The large companies dominated many of the modern sectors and
more or less all of the basic industries such as mining, heavy construction, shipbuilding, etc. The vast majority of small and medium
enterprises, on the other hand, was overshadowed and left behind
with respect to capital, human resources, and technology.146 This
dual structure deepened even further during the crisis of the 1920s.
The group of small and medium companies could roughly be divided
142
Cf. Nakamura, supra note 129, at 421, 428 et seq.
144
For a comparative overview of the development of the different forms of enterprise from see infra, at the appendix with further references.
145
A good overview on the emergence of this new middle class can be found
with R. Iwauchi, The Growth of White-Collar Employment in Relation to the
Education System, in: Japanese Management in Historical Perspective 83–105 (T. Yui
& K. Nakagawa, eds. 1989).
146
143
367
into three categories.147 A first followed an artisan or merchant tradition from the Tokugawa era that were manufacturing traditional
products and were located mostly in rural areas and small towns. A
second category comprised companies producing modern goods on
a small-scale basis relying on imported technologies located mostly
in cities. A third group consisted of subcontractors for the large
industrial enterprises whose main field of activity was the production of machines, ships, and the like. The third group of companies
was typically located in the vicinity of the large producers they were
working for and on whom they often relied for managerial guidance
as well as technical and financial support. This group of companies
varied significantly in size. Over the years some became quite large
companies themselves.148
Many of the large enterprises were organized as a special form of
conglomerate, the so-called zaibatsu, a category which requires some
special attention here because of the preeminent role these firms
played in the Japanese economy before World War II and—for at
least some, in a significantly transformed way—after the war as well.
c) Origins and Growth of the Zaibatsu
Following the definition of Hidemasa Morikawa, a zaibatsu can best
be described as a group of diversified businesses owned exclusively
by a single or extended family.149 At the beginning they were organized on a partnership basis, which was in most cases transformed
into limited partnership companies after the Kyù-shòhò came into
effect in 1893.150 It was not until the 1920s that most of them were
further transformed into multi-subsidiary enterprises consisting of various stock corporations under the roof of a holding company. This
later form was in many respects quite similar to the German Konzern
but quite different from the postwar Japanese enterprise groups, the
keiretsu.151 The ten largest zaibatsu were Mitsui, Mitsubishi, Sumitomo,
Yasuda, Furukawa, Òkura, Asano, Fujita, Kuhara, and Suzuki. The first
147
149
An excellent description of the zaibatsu can be found in Morikawa’s study,
Zaibatsu—The Rise and Fall of Family Enterprise Groups (1992); the following passages rely mainly on that source.
150
See supra at II.l.c) (3).
151
Morikawa, supra note 149, at xviii; for the keiretsu, see infra IV.1.c).; the
differences are described by Yonekura, supra note 39, at 63–65.
148
368
four were the most important, and out of these the first two were
by far the largest. By 1930 these ten conglomerates accounted for
nearly one-fifth of all paid-in capital. As mentioned before, they controlled important parts of the modern sectors and dominated the
basic industries by the late 1920s. To name but a few examples, in
1928–29 Mitsui Trading alone accounted for some 15 percent of
Japan’s total exports and some 14 percent of its total imports; Mitsui
Mining produced roughly 14 percent of all coal mined in Japan; and
Mitsui Trust held more than 28 percent of all cash trusts.152 According
to a 1936 survey about the affiliation of companies with the four
biggest zaibatsu, 101 companies were affiliated with the Mitsui, 73
with Mitsubishi, 44 with Yasuda, and 34 with Sumitomo; about half of
these were manufacturing firms.153
The origin of the zaibatsu dates back to the early Meiji years, and
in the case of Mitsui and Sumitomo even further back to Tokugawa
times.154 Some of them started as mining enterprises, but most of
their founders were so-called “political merchants” (seishò ). This term
describes traders and financiers who used their connections to the
political leaders to gain governmental patronage such as the granting of monopolies. Thus they were able to make huge profits and
to amass enormous wealth. On the other hand, these rapidly diversifying companies were the driving force behind Japan’s industrialization. In the 1870s and 1880s, the accumulated wealth enabled
the family businesses to start diversifying their enterprises, thus laying the foundation for the transformation into what later was called
zaibatsu, which literally means “financial group”. This trend was accelerated in the 1880s by the purchase on easy conditions of numerous state enterprises which had become too expansive for the
government to continue to manage.155 The combination of these two
factors—diversification, and adoption of modern company structures
under first the Kyù-shòho and then the Shòhò—was decisive in the
final transformation of family businesses into the zaibatsu. The process
was further helped by the growing number of employed salaried
152
Figures cited from Morikawa, supra note 149, at xix; a comprehensive analysis about the development and rise of the Mitsui zaibatsu can be found in Yonekura,
supra note 39, at 65 et seq.
153
Figures cited after Y. Suzuki, Japanese Management Structures, 1920–80, at
46 (1991).
154
For a detailed description, see Morikawa, supra note 149, at 3 et seq.
155
Cf. Morikawa, supra note 149, at 26.
369
managers who played a vital role in the emergence of these enterprise groups. Although the paths of growth and diversification differed,
around the year 1910 most of the zaibatsu had developed into their
distinctive shapes. A typical zaibatsu such as Mitsui or Mitsubishi was
based on three pillars: banking, trading, and mining.156 Besides the
crucial role of group-centered banks supplying internal (meaning
cheap and reliable) financing,157 the general trading company in each
group also played an important role by supplying strategic services
to the other members of the group.158
The economic growth during World War I promoted an everincreasing concentration of economic and financial power in the
hands of the zaibatsu, especially in tertiary sectors such as banking,
insurance, and trading. Simultaneously, the major groups intensified
their advance into heavy industry where they soon occupied leading
positions. The boom during World War I fostered the emergence of
more zaibatsu. Wealthy families started to follow the example of the
Meiji-era zaibatsu and began to diversify their enterprises. The new
groups included well-known names such as Suzuki, Iwai or Nomura.159
After the enactment of the corporation law in the Old Commercial
Code in 1893 and in the new code in 1899, both of which provided legal forms which limited the liability of companies, the zaibatsu
quickly made use of these possibilities. At first, most of them preferred the legal form of a gòshi kaisha because this type required less
disclosure than a stock corporation.160 Some years later, however,
one after another started to transform their companies into stock
corporations. The change was a vital part of a new strategy, the
adoption of the so-called “family multi-subsidiary system”.161 Mitsui
156
Cf. Morikawa, supra note 149, at 59 et seq.
The financing of the zaibatsu is described by H. Masaki, The Financial
Characteristics of the Zaibatsu in Japan: The Old Zaibatsu and Their Closed
Finance, in: Marketing and Finance in the Course of Industrialization. Proceedings
of the Third Fuji Conference, at 33 et seq. (K. Nakagawa, ed. 1978).
158
A very good overview of the role of the sògò shòsha can be found in various
contributions in: S. Yonekawa (ed.), General Trading Companies: A Comparative
and Historical Study (1990).
159
160
E. Takahashi, Konzern und Unternehmensgruppe in Japan—Regelung nach
dem deutschen Modell? [Concern and Enterprise Groups in Japan—A Regulation
According to the German Model?], at 17 (1994).
161
Cf. Morikawa, supra note 149, at 182 et seq.; see further Hirschmeier & Yui,
supra note 9, at 212 et seq.
157
370
was the first to introduce this structural change between 1909 and
1911 after a group of family members and salaried managers conducted a study tour through some European countries and the U.S.,
where they learned of the advantages and widespread use of the
legal form of a stock corporation.162
A main reason for that transformation was the wish to protect the
fortunes of the founder families by a structure of strictly limited liability provided by the stock corporation. Furthermore, the legal form
of a stock corporation brought with it certain tax advantages. In
1905 the government introduced a tax reform which doubled the
income tax for the partnership companies for some years and levied
taxes on retained earnings in closed, mostly family-owned, companies because the state needed money to finance its war against Russia.
The kabushiki kaisha was spared these increased taxes, and therefore
the incorporation of a company as a stock corporation became the
preferred form of enterprise. Another reason was the attempt to fend
off growing public criticism against the closed zaibatsu firms by transforming them at least nominally into public companies. In reality,
of course, the transfer of shares was prohibited in the charter and
almost all shares were held directly or indirectly by family members.
In the case of Mitsui, the four main companies of the group, Mitsui
Bank, Mitsui Bussan, Mitsui Mining, and Tòshin Warehousing, were transformed into stock corporations in 1909. The shares of those four
companies were held by the newly formed Mitsui Gòmei Kaisha, which
acted as a holding company and in which the heads of the eleven
Mitsui houses were the sole partners.163 Though non-Mitsui promoters and directors had to be made shareholders of the stock corporations for legal reasons, their ownership was strictly nominal. The
holding company was in any case entirely in the hands of family
members. Later, further indirect subsidiaries of the group were transformed into stock corporations.
Of interest is the question of managerial control, which varied
significantly from company to company and changed at different
times.164 However, some basic features seem to be quite typical.
Holding companies such as Mitsui Gòmei Kaisha exercised control over
the joined enterprises as they held all the shares. But this control
162
163
164
Cf. id., at 183.
Cf. Suzuki, supra note 153, at 51 et seq.
371
appears to have been less a strict directing from above than a kind
of informal policy coordination between itself and the major subsidiaries. And it helped to prevent an overly direct interference of
the owner families in the daily management of the subsidiaries. The
holding companies acted in this way rather as head offices for the
groups integrating the various subsidiaries.165 The salaried managers
who were in charge of the individual companies as executive directors ( jòmu torishimari-yaku) were regarded as mere employees working
only for the good of the zaibatsu families and owing strict loyalty
towards them. However, with their great talent they did actually
have a significant influence on how the zaibatsu companies were run,
even though the presidents of the big subsidiaries were family members and part-time directors represented the various families.166 It
could be said that there was a kind of fusion between the managing and the controlling functions. The separation between ownership and control was not as clearly developed as in some Western
companies: the side of the owners was present in the form of family members on the board, especially the president, although the
employed—and highly paid—senior executive director (senmu torishimari-yaku) was actually leading the company.167
The other major zaibatsu were quick to follow the example of Mitsui.
Sumitomo started to adopt that system in 1912, and Mitsubishi followed
in 1917. The rapid growth forced the zaibatsu to give up their financial
exclusiveness rather soon—at least partly—as even their huge financial
resources became strained. In 1919 and 1920 respectively, Mitsui and
Mitsubishi made (limited) public offerings to raise additional capital.
However, this naturally did not mean that they were losing control
as they were keeping majority positions.168
During the depression years the zaibatsu in general fared comparatively well, at least initially. Only companies who belonged to
one of the big zaibatsu were able to ride out the crisis years of the
1920s fairly well because of their vast financial resources. In general, the power of the zaibatsu grew significantly during these troubled times. However, even some of the big zaibatsu, e.g., Kuhara or
165
167
168
A detailed description of the widespread use of holding companies in pre-war
Japan can be found with Suzuki, supra note 153, at 44 et seq.
166
372
Fujita, collapsed in the late 1920s. A further strain came with the
anti-zaibatsu movement of the economically depressed early 1930s.
The growing criticism was mainly inspired by anti-capitalistic political activists on the left as well as on the right. The excessive economic power, far-reaching political influence combined with widespread
corruption, and allegedly unethical profiteering by the big groups
were the main causes for that movement. It finally turned violent
when the senior executive director of the Mitsui holding company,
Takuma Dan, was assassinated by right-wing terrorists in 1932.
Afterwards the so-called “zaibatsu conversion” began.169 The companies were opened up. Further stocks were sold to the public, most
family members resigned from directorial posts, and charitable funds
were created to dampen the criticism of the zaibatsu. Close cooperation with the military and nationalistic bureaucrats was another way
to deflect public criticism.170 Increasingly excessive demands by the
military in its arming of the country forced the groups to grow
beyond their original structure and open up further by raising funds
in way of public offerings and reducing the family control.
In the 1930s, so-called “new zaibatsu” such as Nippon Sangyò (Nissan)
emerged, large industrial groups which were an active part of the
military expansion during the 1930s.171 These companies differed
from the old zaibatsu by quickly creating large enterprise groups using
only little capital of their own, financing their ventures externally
instead by the raising of money through public offerings while keeping control via a system of holding companies. Protection by the
military further helped. The partly sought-after, partly rather reluctantly developed close connections between various zaibatsu and the
nationalist bureaucracy as well as the armed forces proved deadly
in the end, for this was the main reason behind their forceful dissolution under the Allied occupation after World War II, as will be
described later.172
169
Cf. Masaki, supra note 157, at 49 et seq.
The growing influence of the state on the firms is analyzed by T. Okazaki,
The Japanese Firm under the Wartime Planned Economy, in: The Japanese Firm—
The Sources of Competitive Strength, at 350–378 (Aoki & Dore, eds. 1994).
171
Cf. Morikawa, supra note 149, at 227; Masaki, supra note 157, at 49 et seq.
172
See infra IV.1.
170
373
3. Development of Commercial and Corporate Law
This rapid development of the modern sector corresponded with a
rise in the number of stock corporations as well as the growth of
individual enterprises into very large corporations focused on mass
production. In the course of these developments it soon became clear
that the corporation law as regulated in the Shòhò had to be adapted.
Furthermore, the economic boom was accompanied by a widespread
fraudulent use of the new forms of enterprise, especially the stock
corporation. This led to two rather comprehensive reforms. The first
in 1911 amended some 200 articles of the Shòhò. This reform was
influenced by the German Handelsgesetzbuch (HGB) of 1897, which
replaced the ADHGB of 1861 as mentioned before.173 The second
reform in 1938 was even more thorough. After years of preparations on a comparative basis, some further 500 articles of the Shòhò
were significantly amended. This reform, especially, was no isolated
Japanese phenomenon. Rather it followed an international trend of
adapting corporation laws to the necessities of a modern industrial
society. This trend could be observed in the 1920s and 1930s in
various countries including Germany. Again, Germany’s reform of
its pertinent provisions in the HGB in 1931, and especially the new
law on stock corporations of 1937, the Aktiengesetz,174 which replaced
the relevant sections in the HGB, were closely watched in Japan.
a) The Reforms of 1911 and 1938
Most of the amendments in both reforms referred to the regulations
of the stock corporation, and this will be our focus here. The aim
of the 1911 reform of the Shòhò175 was twofold. First, it aimed at
clearing up doubts about the interpretation of various provisions
which had arisen in the first decade of its application.176 For example,
173
See supra II.2.c.
Gesetz über Aktiengesellschaften und Kommanditgesellschaften auf Aktien, Law of January
30, 1937, RGBL. I, 107.
175
Law No. 73 of 1911. For an English translation of the revised version, see L.
Lönholm, The Commercial Code of Japan (5th ed., 1911). An extensive English
commentary of the 1911 code can be found in Becker, Commentary of the
Commercial Code of Japan, 3 Vols. (1913).
176
Cf. M. Kitazawa, Kabushiki kaisha no shoyù. keiei. shihai [Ownership, Management,
and Control of the Stock Corporation], at 71, in: Gendai-hò [Modern Law] Vol. 9
( J. Yazawa, ed., 1966); Sugawara, supra note 117, at 20; Saegusa, supra note 77,
at 171–175.
174
374
under Art. 190 of the Shòhò of 1899, a stock corporation had to prepare a balance sheet every year. However, the methods for evaluating corporate assets were not legally determined. Among other
difficulties, it was unclear and disputed whether the book value or
the present (market) value—if lower than the former—had to be taken.
The second aim of the reform was the attempt to prevent the
foundation of so-called “bubble companies” (hòmatsu kaisha) which
had become an increasingly popular tool for defrauding investors.177
As mentioned before, the tax reform of 1905 favored the kabushiki
kaisha which consequently became the preferred form of enterprise,
and in quite a number of cases it was used to defraud investors. If
well-known personalities announced their intention to establish a
stock corporation, investors were willing to pay a premium and purchase stocks at a price significantly higher than the face value of the
stocks. Often these promoters were mostly interested in cashing up
that premium and did not actively engage in running the company.
Usually, the result was a prompt business failure with the investors
losing all their invested capital. A further consequence was an increasing loss of confidence of the investing public in the stock corporation in general.
The 1911 amendments, therefore, introduced a strict personal liability of promoters. Incorporators who violated their duties towards
the corporation could be held jointly responsible (Art. 142–2 Shòhò).
In case of gross negligence or intentional violation, they could be
liable for damages arising to third parties. Some significant changes
concerned questions of corporate governance. For the first time the
relationship between directors and company was put on a clear legal
basis. The new—and in substance still valid—regulation provided for
an agency contract between the director and his company.178 A further amendment was the introduction of a liability for damages:
directors who had violated their duty towards the company could
now be held liable for the resulting damages, another provision which
is still valid today substantially.179 Past abuses by directors induced
a third amendment. As described before,180 under the Kyù-shòhò every
director automatically had the individual power to legally represent
the corporation, a concept which the Shòhò had retained. As this
177
178
179
180
Sugawara, supra note 117, at 19.
Art. 164 II Shòhò with reference to Art. 644 Civil Code.
Art. 177 Shòhò —the pertinent provision of the present Shòhò is Art. 266.
See supra at No. II.2.c).
375
concept had been misused fairly often to the disadvantage of the
corporation and its shareholders, the amendment of the law provided for a possibility of restricting the power of representation in
the charter of the corporation or by decision of the general meeting, either to a joint representation by various directors or to individual ones with the sole power to represent the company.181
Thus, the reform also paid respect to the development of a hierarchical structure within the management of large stock corporations.
At the end of the Meiji era, the basic outline of the management
structures seen today in large Japanese stock corporations had already
taken shape with its distinction between president (shachò ), senior
managing or executive directors (senmu torishimari-yaku), managing
directors ( jòmu torishimari-yaku), and director (torishimari-yaku).182 Now
a legal possibility had been created to reserve the power of representation for distinct groups of directors and thereby to more clearly
distinguish between their different functions.
The reform of the Shòhò in 1938 which came into effect January
1, 1940, was much more comprehensive than that of 1911.183 As
mentioned before, some 500 articles were amended.184 The amendments
concerned again mainly the regulations about the stock corporation,
which were significantly altered and supplemented. The reform was
largely based on the concepts in the new German Aktiengesetz (Stock
Corporation Law) of 1937.185 Major aims of the reforms were better enforcement of the control of managers and more complete protection of shareholders against abuses of directors. As the number
of private investors increased, the separation of ownership and management in large corporations became a growing problem in Japan.
Again, this was no isolated phenomenon but could be observed in
other industrialized economies as well.
181
Art. 170 Shòhò.
Cf. M. Miyamoto et al., Nihon keiei-shi [The History of Management in Japan],
at 112 (1995).
183
Law No. 72 of 1938. A German translation of the revised code can be found
in K. Vogt, Handelsgesetzbuch für Japan in der Fassung des Gesetzes vom 4. April
1938 [Commercial Code of Japan as Amended by the Law of April 4, 1938] (1940).
184
Cf. Vogt, supra note 183, at III et seq.; Kitazawa, supra note 176, at 72 et seq.;
T. Okushima, Shòwa jusannen shòhò kaisei [ The 1938 Reform of the Commercial
Code] in: Shòwa Shòhò-gaku-shi [History of Studies on Commercial Law in ShòwaPeriod], at 16 et seq. (T. Okushima & K. Kurasawa, eds. 1996).
185
Cf. K. Ueyanagi, in: Shinpan chùshaku kaisha-hò [Commentary on Corporate
Law] Vol. 1, at 11 (K. Ueyanagi & T. Òtori & A. Takeuchi, eds. 2. ed. 1985).
182
376
Another aspect related to the rise of small shareholders was the need
to better protect the rights of minority shareholders. This was partly
accomplished by providing for intensified disclosure and a stricter
enforcement of liability of directors and auditors. For example, a
new Art. 282 stipulated that the financial statements of the company
had to be kept ready for an inspection by the shareholders at the
company’s head office a week before the general shareholders meeting. The balance sheet had to be published in the daily newspapers
or the Official Gazette (Kanpò ) (Art. 166 Shòhò). Before the 1938
reform, directors could be given an immediate formal approval by
the general meeting. The new Art. 284 stipulated that relief from
possible liabilities would only be valid after a lapse of two years from
the date of the shareholders’ resolution.
Whereas the German reform tried to restrict the competence of
the general meeting, the Japanese reformers were interested in broadening its competence and they therefore enlarged the catalogue of
decisions for which a prior consent of the shareholders had to be
obtained.186 In an attempt to improve the performance of companies
and to make it possible to recruit better managers, non-shareholders
were made eligible as directors and auditors.187 In a further amendment to the reform of 1911, the board could now be empowered
in the charter to select by itself the directors who were to represent
the company legally. This was a further step towards the present
regulation in Art. 261 Shòhò, under which only directors chosen by
the board are empowered to represent the company legally.
But it was not only German legislation which influenced the
Japanese reform. English concepts had also been taken into account:
The sections concerning the special liquidation (tokubetsu seisan) and
the reorganization (seiri) of a stock corporation were introduced for the
first time.188 They were modeled after English concepts. The special
liquidation, an insolvency procedure for complicated cases which is
carried out under the guidance of a court, differs significantly from
ordinary insolvency procedures in not making it necessary to prove
that the assets of a company are insufficient to satisfy its liabilities.
186
Cf. Kitazawa, supra note 176, at 72.
Art. 254, 280 Shòhò.
188
The procedures (Art. 431 et seq. and Art. 381 et seq. respectively) were still
used in the 1980s and 1990s without basic changes; for details, see Z. Kitagawa
(ed.), Doing Business in Japan, Vol. 4, § 1.06[27] (1989).
187
377
The reorganization procedure opens a middle way between a compulsory settlement in bankruptcy and the compulsory winding up of
the insolvent company; its aim is to prevent a squandering of assets
of the company.
In general, the reform clearly shows that an independent legal
development was well on its way in Japan.189 Later reforms in the
years until 1945 were mainly aimed at strengthening the supervisory
powers of the state during the war and were abolished immediately
after the war. Therefore they do not need to be discussed here.
b) Introduction of the Yùgen Kaisha
Another major event in corporation law in the decades between the
turn of the century and World War II was the introduction of a
new legal form of enterprise in 1938: the yùgen kaisha or limited liability company.190 The yùgen kaisha corresponds more or less with the
German Gesellschaft mit beschränkter Haftung (GmbH ), which was its main
model.191 But interestingly, it was only introduced in Japan more
than 40 years after Germany had introduced its original version of
the limited liability company in 1892. Although the Meiji legislators
had shaped much of the corporate law along German lines as
described above, they obviously saw no need for introducing a fourth
form of enterprise besides the general and the limited partnership
company and the stock corporation, with the last of these enjoying
their special attention in the drive to modernize Japan. Furthermore,
in contrast to the situation with respect to the stock corporation or
the limited partnership company, Japanese entrepreneurs in the first
two decades of the Meiji era—before the promulgation of the Kyùshòhò—did not actually operate their businesses with forms of enterprise similar to the limited liability company because they had been
getting by with the other forms based on the individual charters of
their companies. What then changed the minds of the legislators?
189
See Vogt, supra note 183, at IV.
Another English translation used is “private company limited’’ or ‘‘limited
company”.
191
T. Òtori, Yùgen kaisha-hò no kenkyù [Studies on the Limited Liability Company],
at 70 (1965); T. Sakamaki, Heisa kaisha no hòri to rippò [Legislation and Theory of
the Closed Corporation], at 238 (1973).
190
378
The interest in the introduction of a Japanese version of a limited liability company seems to have been triggered by an academic
study.192 In 1917 and 1918, Naojirò Sugiyama from Tokyo University
published a comparative analysis of that form of business in other
industrialized countries.193 He claimed that this form of enterprise
was becoming increasingly popular there and pointed out that different
versions of it existed already in Great Britain, Germany, and Austria,
and that France had just introduced it in 1925. In Japan the number of small companies had grown significantly in the boom years
during World War I. Most of them used the legal form of a stock
corporation. But the regulations of this type of enterprise were designed
for large enterprises and were therefore generally regarded as too
complicated and impractical for small companies. A first draft of a
new law regulating the limited liability company was published in
1931. After much discussion, the final draft was presented in 1937
and promulgated as the Yùgen kaisha-hò in 1938: it came into effect
on January 1, 1940.194
As already mentioned, the yùgen kaisha was structured mainly on
the German GmbH, but some of its original features were borrowed
from the English version of a limited liability company. For example,
the number of partners was limited to a maximum of 50 persons.195
Technically, the Yùgen kaisha-hò is a rather short law with many references to the regulations of the stock corporations in the Shòhò, a
characteristic that has sometimes been criticized as impractical and
unsuitable.196
However, the new form of enterprise was quite readily accepted
by the market. In 1941, in the second year after its introduction,
7,451 yùgen kaisha (YK) were already in operation as compared to
39,284 kabushiki kaisha (KK). At the end of the war in 1945, the
number of YKs had risen to 18,722, nearly half as many as KKs
192
Sakamaki, supra note 191, at 235 et seq.
N. Sugiyama, Genkò yùgen sekinin kaisha-hò [ The Modern Regulation of the
Limited Liability Company], 35 Hògaku Kyòkai Zasshi No. 12, at 26 et seq. (1917);
Vol. 36, No. 1, at 71 et seq., No. 2, at 91 et seq., No. 3, at 68 et seq. (1918).
194
Law No. 75 of 1938 as amended by Law No. 66 of 1994. For an English
translation, see EHS, Vol. II., JD, No. 2230. The translation covers the Yùgen kaishahò as amended to 1981.
195
Cf. J. Eguchi, in: K. Ueyanagi et al., supra note 184, at 55 (Vol. 14, 1990);
Sakamaki, supra note 191, at 242.
196
Cf. E. Hattori & K. Katò, Seibun yùgen kaisha-hò kaisetsu [Comprehensive
Commentary on the Law of the Limited Liability Company], at 1 (1984).
193
379
(46,042).197 The form of the yùgen kaisha was especially used in the
textile industry and with smaller retail companies.198 Some fifty years
later, in the late 1990s, more yùgen kaisha than stock corporations
were doing business in Japan. However, virtually all major Japanese
companies were incorporated in the form of a kabushiki kaisha.199
c) Related Legislation
In 1922 the provisions on bankruptcy in the Kyù-shòhò—the only part
of it still in force—were replaced by a new bankruptcy code, the
Hasan-hò.200 Whereas the old regulation had been primarily shaped on
the pertinent French code of 1838—the German Hermann Roesler,
on whose drafts it had been based, had preferred the French model—
the new Japanese code was strongly influenced by the German bankruptcy law, the Konkursordnung of 1877.
In 1934 Japan joined the Geneva Unification Treaties of 1931.
Two new laws replaced the regulations on bills and checks in the
fourth book of the Shòhò: the Law on Bills201 and the Law on Checks.202
d) Reception of Legal Theory
One characteristic aspect of legal science in Japan is often described
as the “Japanization” (nihon-ka) of the legal regimes and legal thought
of Europe. Although this surely is an exaggeration, a fundamental
receptivity to and Japanization of European legal theory can be found
in the field of commercial law. This can be shown by the discussion about the nature of commercial law.
The understanding of commercial law as the law of enterprise was
the result of a long and controversial discussion among Japanese
197
Cf. Nihon Tòkei Kyòkai [ Japan Statistical Association] (ed.), Nihon chòki tòkei
sòran [Historical Statistics of Japan] Vol. 4, at 162 (1987).
198
H. Shimura, Yùgen kaisha no hòteki jittai [The Legal Practice of the Limited
Liability Company], Ritsumeikan Hògaku No. 121–124, at 545 (1975).
199
A complete overview of the further development of the yùgen kaisha until 1995
can be found in the Appendix, Table 3.
200
Law No. 71 of 1922 as amended by Law No. 79 of 1991; for an English
translation, see EHS Vol. II LU No. 2340.
201
Tegata-hò, Law No. 20 of 1932 as amended by Law No. 61 of 1981; for an
English translation, see EHS Vol. II JB No. 2210.
202
Kogitte-hò, Law No. 57 of 1932 as amended by Law No. 61 of 1981; for an
English translation, see EHS Vol. II JB No. 2220.
380
scholars which intensified significantly in the 1930s. After his return
from Germany, Kòtarò Tanaka (1890–1974), a famous scholar of
commercial law at the University of Tokyo, presented a doctrine of
commercial law which at first drew a wide following but with time
garnered increasing criticism in Japan. He stated that commercial
law could not be distinguished from civil law on the grounds of categorization or the issues regulated; instead, he used the concept of
shòteki shikisai (the “coloring of commerce”).203 With the concept of
“commercial colors” he was referring to institutional phenomena such
as non-individuality and the mass character of modern business transactions. His theory was originally based on German concepts developed by Philipp Heck.204 Heck, a well-known professor of law at
the University of Tübingen at the beginning of the century, questioned why a separate commercial law had developed.205 He found
the reason in the fact that commercial law—in contrast to civil law—
deals with large-scale transactions involving great numbers of persons.
Tanaka’s concept was strongly criticized by his pupil Kan’ichi
Nishihara (1899–1976), professor at the former Keiò University and
later the Osaka City University, who studied under Karl Wieland
at Basel University in 1931. Wieland had argued that the key for
understanding the nature of commercial law and the common feature of its various provisions was the concept of the enterprise.206
On this ground Nishihara attacked the concept of ‘‘commercial colors” as being too vague, proposing Wieland’s idea instead and arguing that the provisions in the commercial code should be interpreted
as the law of the enterprise.207 His view finally became generally
accepted among Japanese scholars. Nowadays, his understanding of
commercial law is almost unanimously accepted in Japan.
Interestingly, in Germany, where the commercial code is still based
203
Cf. K. Tanaka, Kaisei shòhò sòsoku gairon [The General Provisions of the Revised
Commercial Code], at 7 et seq. (1938).
204
Cf. K. Tanaka, Hòhò toshite no shòteki shikisai [Commercial Color as a Method],
in: id., Chosaku-shù [Collected Essays] Vol. 7, at 65 (1954); E. Hattori, Shòhò sòsoku
[General Provisions of the Commercial Code], at 6 (3. ed., 1983); Sugawara, supra
note 117, at 32.
205
Cf. P. Heck, Weshalb besteht ein von dem bürgerlichem Rechte gesondertes
Handelsprivatrecht? [Why Do We Have a Separate Private Commercial Law Besides
the Private Law?], 92 Archiv für die civilistische Praxis, 438, 463 (1902).
206
Cf. K. Wieland, Handelsrecht [Commercial Law], Vol. 1, at 145 (1921).
207
K. Nishihara, Shòhò sòsoku [General Provisions of the Commercial Code], at
230 (1938).
reconstruction and economic miracle (1946‒1980s)
381
on the concept of the merchant, a similar discussion is now taking
place with prominent scholars proposing a new understanding of the
German code as a law of enterprises.208 The discussions in both countries are taking the same path.
4.4
Reconstruction and Economic Miracle (1946–1980s)
1. Reform, Reconstruction, and Growth
In only three decades Japan achieved its rise from a country devastated and impoverished by war and defeat to one of the leading
nations of the world and an economic superpower (keizai taikoku). In
this section we will take a short look at the economic and political
development in these years. We will (a) focus briefly on the restructuring under the Allied occupation from 1945 to 1951 and (b) its
results in shaping the corporate landscape before (c) concentrating
on the major reform of the corporation law in 1950, which was a
part of the so-called ‘‘democratization” of the economy after 1945,
with a brief treatment of some later amendments (2.).
a) From the Ruins to the Miracle
On August 15, 1945, Emperor Hirohito announced the end of the
war. Japan acknowledged its defeat and accepted the provisions of
the Potsdam Declaration, and in the same month the first occupation of the country in Japanese history began with General Douglas
MacArthur acting as the Supreme Commander for the Allied Powers
(SCAP). The occupation ended more than six years later in April
of 1952 when the Peace Treaty of San Francisco, which had been
signed in San Francisco by Japan and 46 other countries in September
of 1951, came into effect. In May of 1952 Japan concluded the U.S.Japan Security Treaty. Thus the second period of forced transformation under foreign influence came to an end. In the same month
208
Cf. P. Raisch, Geschichtliche Voraussetzungen, dogmatische Grundlagen und
Sinnwandlung des Handelsrechts [Historical Background, Dogmatic Foundations,
and the Changing Nature of Commmercial Law] at 249 et seq. (1965); K. Schmidt,
Handelsrecht [Commercial Law] at 60 (4th ed. 1994).
382
Japan was admitted to the International Monetary Fund (IMF) and
the World Bank. In August of 1955 it became a member of the
General Agreement on Trade and Tariffs (GATT), at first under
the Art. 14 status of the IMF. In the spring of 1964, the same year
it hosted the Olympics, Japan shifted to Art. 8 status (advanced
nation status) in GATT and later joined the Organization for Economic
Cooperation and Development (OECD) as the first Asian nation.209
The economic destruction inflicted on Japan by the war had been
severe. Real GNP per capita had declined in 1946 to 55 percent of
the 1934–36 level, and it was not until 1953 that Japan was able
to recover that pre-war level.210 However, once the Japanese dreams
of being an elite nation by divine preordination and the natural
leader of Asia were buried, the political and economic leaders focused
on rebuilding Japan with remarkable energy and decisiveness.211 From
the early fifties to the beginning of the seventies, Japan’s economy
showed an annual growth rate of nearly ten percent. As it had some
decades earlier after the Meiji Restoration, the West—at least initially—became the model again. But this time the orientation was
to a larger extent towards the victorious U.S. rather than towards
the equally devastated countries of continental Europe.
After the first postwar boom unexpectedly triggered by American
demand for Japanese exports during the Korean War,212 it was in
the mid-fifties when the high-growth period started and the so-called
“Japanese miracle” began to take shape in a series of ensuing growth
circles. Japan adopted a policy of domestic growth without dependence on foreign capital, characterized by high savings and imported
technology.213 Japan did not encourage direct foreign investment, but
209
For a detailed historical overview, see, e.g., F. Fukui, Postwar Politics, 1945–1973;
Y. Kòsai, The Postwar Japanese Economy, 1945–1973, both in: The Cambridge
History of Japan, Vol. 6, The Twentieth Century, at 154–213 and at 494–537
respectively (P. Duus, ed. 1988); G. Gordon, Postwar Japan as History (1993), various contributions; with respect to economic development, see, e.g., T. Uchino, Sengo
nihon keizai-shi (197.8), published in English as: Japan’s Postwar Economy. An Insider’s
View of Its History and Its Future (1983), citations refer to the translation; T. Ito,
The Japanese Economy (1992); J. Vestal, Planning for Change: Industrial Policy
and Japanese Economic Development, 1945–1990 (1993).
210
Kòsai, supra note 209, at 494.
211
212
The war started on June 25, 1950, and an armistice was reached on July 27,
1953.
213
Kòsai, supra note 209, at 508; Y. Yasuba & T. Inoki, Nihon keizai-shi, hachikan, Kòdo seichò [The History of the Japanese Economy, Vol. 8, The High Growth
Period], at 22 et seq. (1989).
383
introduced foreign technology through technical cooperation without
capital tie-ups to avoid foreign control.214 The driving force was private plant and equipment investment; however, the government maintained strict control, especially over new industries.215 By 1968, exactly
100 years after the Meiji Restoration, Japan had become the second
biggest economy in the free world after the U.S., surpassing both
Germany and France.216
Shortly thereafter the era of rapid growth ended. Japan’s mounting balance of payments surplus and its undervalued currency led
to increasing foreign criticism. 1971 saw the abolishment of fixed
exchange rates and a dramatic revaluation of the yen against the
U.S. dollar with severe consequences for Japanese exports (so-called
Nixon shock). Furthermore, the first oil crisis of 1973–74 had a devastating effect on Japan’s economic performance and led to a prolonged recession. Only some years after the second oil shock of 1979
did growth start to pick up again, in the early 1980s.
b) Policy of SCAP
The American-dominated occupation of Japan under the Supreme
Commander for the Allied Powers (SCAP) had two major objectives:
the demilitarization and democratization of Japan, The early occupation policies were initially not directed to economic recovery, and
only when it became clear that democracy might not bear fruit
because of the economic crisis did a shift in policy occur.217 To
achieve these goals, SCAP initiated broad legal reforms.218 Instructions
were given to the Japanese government in the form of directives,
memoranda, or letters, whereas the Japanese authorities—who were
actually carrying out the reforms—used the form of laws or ordinances
to realize those objectives.219 Among various others, three basic
214
Kòsai, supra note 209, at 518, 520/21.
Uchino, supra note 209, at 91.
216
T. Nakamura, Shòwa keizai-shi [The History of the Economy in the Shòwa
Period], at 276 (1986). Uchino, supra note 209, at 157.
217
Uchino, supra note 209, at 23–24.
218
For a general overview and assessment of the legal reforms in Japan during
the Allied occupation, see A.C. Oppler, Legal Reform in Occupied Japan: A
Participant Looks Back (1976); id., The Reform of Japan’s Legal and Judicial System
Under Allied Occupation, Wash. L. Rev., Special Edition, 1–35 (1977).
219
Cf. T.F.M. Adams & I. Hoshi, A Financial History of the New Japan, at 21
(1972).
215
384
economic reforms were initiated by SCAP as a way of democratizing the Japanese economy: land reform, labor reform, and dissolution of the pre-war zaibatsu.220 We will concentrate here only on the
third point.221
SCAP put special emphasis on the zaibatsu and the dispersion of
stock holdings to individuals because a widespread ownership of securities was regarded as one of the prerequisites of diluted economic
power, which in turn was perceived as the basis for economic democratization. The concentration of ownership in the zaibatsu families
was held to be typical of the prewar economic system and instrumental in the militarization of Japan.222 SCAP’s concept was to
replace the central, hierarchical ownership structure of the zaibatsu,
which was based on family-owned holding companies,223 with the
American model of corporate governance in the form of “market
corporate control” where management would be monitored in a system of widespread ownership through the market and the general
shareholders’ meeting. This was to be added by internal employee
control of management.224
The dissolution of Japan’s large industrial and financial combines
started in the fall of 1945 when the biggest four zaibatsu—Mitsui,
Mitsubishi, Sumitomo, and Yasuda—plus Fuji Industries were designated
as “holding companies”. In its attempts to limit the number of companies to be affected, the Japanese government had insisted that not
the combine as a whole but rather the top holding company as the
center of a combine was to be dissolved. Between September of 1946
and September of 1947 a total of 83 holding companies with some
4,500 subsidiaries was named. But the number of combines actually
involved was less than 20. The higher figure resulted from the fact
220
K. Ishii, Nihon keizai-shi [History of the Japanese Economy], at 320 (1991);
Kòsai, supra note 209, at 495 et seq.
221
The classic study on the democratization of the economy is: E.M. Hadley,
Antitrust in Japan (1970); an earlier account can be found with T.A. Bisson, Zaibatsu
Dissolution in Japan (1954); see further H. Miyajima, The Privatization of Ex-Zaibatsu
Holding Stocks and the Emergence of Bank Centered Corporate Groups in Japan,
in: Corporate Governance in Transitional Economies. Insider Control and the Role
of Banks, at 361–404 (M. Aoki & H. Kim, eds. 1994); Takahashi, supra note 160,
at 18–22; Fukui, supra note 209, at 155 et seq.; Adams & Hoshi, supra note 219, at
23–26; Morikawa, supra note 149, at 237–239.
222
Miyajima, supra note 221, at 364–365; Òkurashò Zaisei-shi-shitsu (ed.), Shòwa
zaiseishi [History of Finance in the Shòwa Period], Vol. 2, Dokusen kinshi [AntiMonopoly], at 93–95 (1982).
223
See supra III.1.c).
224
Miyajima, supra note 221, at 363, 365.
385
that second-level holding companies (often key subsidiaries) were also
included. In March of 1947 the circle was broadened as 56 persons
from ten zaibatsu families were listed as “designated persons” and
had their assets frozen.225
In August 1946 the Holding Company Liquidation Commission (HCLC,
Mochikabu Kaisha Seiri I’inkai ) was established, as part of the Japanese
government but with a special status and under direct control of
SCAP.226 Securities held by designated holding companies or persons were to be transferred to the commission, which then would
dispose of them to new owners. The former owners received compensation within certain limits.227 Of the 83 holding companies, 30
were dissolved, including the four big zaibatsu. The others were reorganized. In addition, the control of companies by personal ties was
ended. Members of designated zaibatsu families especially had to
resign and were prohibited from holding positions in former zaibatsu
companies.228 As a result, the empires of the zaibatsu were broken
up and the exclusive family ownership and control disappeared for
good. To prevent a future reappearance of a comparative monopolistic power, the Antimonopoly Law229 was enacted in 1947, as is
described in greater detail elsewhere in this volume.230 To dissolve
not only the domination of one firm over others but also market
domination by monopolistic firms, the Deconcentration Law231 was
enacted to allow the break-up of enterprises considered mono-polistic. But of 325 firms designated as representing excessive concentration, only 18 were finally broken up.232
225
Cf. Hadley, supra note 221, at 69–73.
The establishment was based on the Imperial Ordinance 233 from April 20,
1946; an English translation can be found in: The Holding Company Liquidation
Commision [HCLC] (ed.), Laws, Rules and Regulations Concerning the Reconstruction
and Democratization of the Japanese Economy, at 38 (1949).
227
The dissolution process is described in greater detail by Hadley, supra note
221, at 68 et seq., and Miyajima, supra note 221, at 368 et seq.; see also Mochikabu
Kaisha Seiri I’Inkai, Nihon zaibatsu to sono kaitai [ Japanese Zaibatsu and their
Dissolution], at 155 et seq. (1951).
228
Cf. Adams & Hoshi, supra note 219, at 24.
229
Shiteki dokusen no kinshi oyobi kòsei torihiki no kakuho ni kansuru hòritsu [Law Concerning
the Prohibition of Private Monopoly and the Maintenance of Fair Trade], Law No.
54 of 1947 as amended by Law No. 87 of 1997.
230
See Chapt. 05.8.
231
Kado keizai-ryoku shùchù haijo-hò [Law for the Elimination of Excessive Concentration
of Economic Power], Law No. 207 of 1947; an English translation can be found
with HCLC, supra note 226, at 52.
232
Cf. Adams & Hoshi, supra note 219, at 25; Kòsei Torihiki I’inkai, Dokusen
kinshi seisaku sanju-nen-shi [Thirty Years of Anti-Monopoly Policy], at 27 (1977).
226
386
The HCLC was dissolved in July 1951. During its nearly five
years of existence, it disposed of some 165 million shares with a total
value of some 9 billion yen representing more than 20 percent of
the economy’s capital. Together with securities transferred to other
agencies in connection with the liquidation of financial institutions,
etc., altogether some 40 percent of all Japanese securities were affected
by these measures.233 To avoid a collapse of the capital market and
to coordinate the activities of the different authorities involved, in
June of 1947 the Securities Coordinating Liquidation Commission (SCLC,
Yùka Shòken Shori Chòsei Kyògi-kai ) was established. Although the stock
exchanges which were closed in 1945 were only reopened in 1949,
the SCLC had managed to sell over 230 million shares when it was
dissolved in 1951.234 The securities sold by the SCLC were channeled
in two directions: first, to the employees of the corporations whose
shares were sold (ca. 30%); and second, to the general public.235
Former zaibatsu firms and members of the zaibatsu families were subject to stringent restrictions with respect to the acquisition of shares.
To support the so-called “securities democratization movement” and
to establish a fair basis for securities trading, the Securities and
Exchange Law236 was enacted in 1948 following a hapless and shortlived precursor.
The result of all the redistribution of shares was—at least at the
beginning—the intended spread of share ownership and a significantly
increased number of individual shareholders. In 1945 there had been
1.7 million shareholders of 631 companies listed on the First Section
of the Exchange with 444 million shares. At the end of the occupation in 1952, the number of shareholders had increased to 7 million and the number of listed companies had risen to 770 with more
than five billion shares outstanding.237 The percentage of individual
ownership in listed shares climbed from 53 percent in 1946 to 69
233
Cf. Adams & Hoshi, supra note 219, at 24, 25; Miyajima, supra note 221, at
369.
234
Cf. Hadley, supra note 221, at 184 et seq.; Adams & Hoshi, supra note 219,
at 26; I. Kawai, Zaibatsu kaitai [Zaibatsu Dissolution], in: Shòken Hyakunen-shi [One
Hundred Years of Securities], at 194 (H. Arisawa, ed. 1978).
235
The process is described in detail with Miyajima, supra note 221, at 375–389;
Adams & Hoshi, supra note 219, at 43–48.
236
Cf. supra note 5.
237
Cf. C. Heftel, Corporate Governance in Japan: The Position of Shareholders
in Publicly Held Corporations, U. Hawaii L. Rev., at 142 with further references
(1983).
387
percent in 1950, and corporate ownership fell during the same period
from approximately 25 percent to 6 percent.238 A lasting legacy of
the occupation reforms is the modern publicly held corporation in
Japan, which replaced the family-owned zaibatsu. However, after the
end of the occupation, a new form of economic concentration began to
take shape as the dispersed share ownership shrunk again and enterprise groups emerged.239 As early as 1950, a gradual shift in the
ownership structure towards an institutional shareholding had begun,
caused by economic necessities, a collapsed stock market, and policy change.240 The change can be illustrated by the following table:
Distribution of Share Ownership in Japan by Types of Holders
(1950 till 1980, %)241
Types of Holders
1950
1955
1970
1980
Business Corporations
Banks and Insurances
Investment Funds
Securities Companies
Individuals
Foreigners
Government
6.0
9.0
0.0
13.0
69.0
1.0
2.0
7.0
28.5
0.0
7.9
53.7
2.9
–
23.1
30.9
1.4
1.2
39.9
3.2
0.3
26.0
37.9
1.5
1.7
29.2
4.0
0.2
This leads us to the more general question of how the corporate
landscape in postwar Japan has developed.
c) Corporate Landscape in Postwar Japan
The final triumph of the company system promoted in the early 1870s
can be seen in postwar Japan.242 In the mid-1990s more than one
Rounded figures, cf. Adams & Hoshi, supra note 219, at 26.
Heftel, supra note 237, at 142, 144; T. Kikawa, Nihon no kigyò shùdan [Corporate
Groups in Japan], at 132 et seq. (1996).
240
Cf. Miyajima, supra note 221, at 379–389; K. Suzuki, Zaibatsu kara kigyò shùdan e [From Zaibatsu to the Corporate Group], Tochiseido Shigaku No. 135, at
13 (1992).
241
Sources: Japan Securities Research Institute, Securities Market in Japan 1996,
at 73–75 (1996); figures for 1950 are estimates; figures for 1955 are from Miyajima,
supra note 221, at 387.
242
Cf. supra II.1.c. (1).
238
239
388
million stock corporations and more than one million limited liability
companies were doing business in the Japanese market.243 However,
the stock corporation, the kabushiki kaisha, has become the predominant
corporate vehicle for establishing a business in Japan.244 Without
exception, virtually every important Japanese firm has chosen this
form of incorporation. But it is not exclusively the big firms; a vast
number of small and medium-sized companies also started to use
this form in the 1960s. In 1990 less than two percent of the stock
corporations had a nominal capital of more than 100 million yen;
more than two-thirds had a capital stock of less than 10 million
yen.245 The main reason why so many small firms chose a legal form
originally tailored only for large companies seems to be the idea that
special public trust and creditworthiness is supposed to be associated
with the stock corporation.246 The result has been a large gap between
corporate law and corporate reality. The requirements of the Shòhò
are not fulfilled by the majority of stock corporations. This problem
has been intensely discussed in Japan247 and was a major cause for
repeated reforms of the Shòhò in the 1970s, 1980s, and 1990s.248
Out of the 1.2 million Japanese stock corporations, some 9,000
are classified as public companies, out of which 2,334 were listed on
the Japanese exchanges in 1997.249 Thus the vast majority of stock
243
Cf. Table 3 in the Appendix.
This section is based on the analysis in: H. Baum, Marktzugang und Unternehmenserwerb in Japan [Market Access and Acquisitions of Companies in Japan]
57–90 (1995) with extensive further references.
245
Cf. Kawamoto, Morita & Kawaguchi, Nihon no kaisha-hò [ Japanese Corporation
Law], at 15 (1994); the requirement of a minimum paid in capital of 10 million
yen was introduced for the first time in 1990, but there was a transition time until
1995 and 1997 respectively.
246
Cf. a survey reported in A. Takeuchi, Kigyò keitai to hò [Form of the Enterprise
and Law], in: Kaisha-hò [Corporate Law] Vol. 1, at 21 (Takeuchi & Tatsuta, eds.
1972); Kawamoto, Morita & Kawaguchi, supra note 245, at 20; S. Maruyama,
Die Rechtslage in der kleinen geschlossenen AG in Japan [Legal Reality in the
Closed Stock Corporation in Japan], 39 AG at 115 (1994), denies the existence of
any rational reason at all for that choice.
247
There is a vast literature on this problem, cf., e.g., M. Tatsuta, The Risks of
Being an Ostensible Director Under Japanese Law, 8 J. Comp. Bus. & Cap. Market
L. 445–454 (1986); M. Hayakawa, Der Grundsatz der beschränkten Haftung im
japanischen Gesellschaftsrecht [The Principle of Limited Liability Under Japanese
Corporate Law], 23 Sandai Hògaku 144–173 (1989); S. Maruyama, supra note 246,
at 115.
248
Cf. infra 2.b.
249
Cf. H. Kanda, Notes on Corporate Governance in Japan, in: Comparative
Corporate Governance: State of the Art and Emerging Research, at 891 (Hopt,
Kanda, Roe, Wymeersch & Prigge, eds. 1998) with further references.
244
389
corporations are non-public firms that are privately held and which
have restricted the transferability of their shares. Accordingly, they
are regarded as closed corporations. However, even most of the public companies are not publicly held in the American sense of the
word. About two-thirds of the outstanding shares are deposited in
the hands of so-called friendly (stable) shareholders (antei kabunushi )
who are not willing to sell them or at least not before informing the
management of the issuer.250 This kind of shareholding—often described
as relationship investment—comes in three types:
(1) a unilateral capital participation supplementing a business
relationship;
(2) a bilateral ownership relation in the form of reciprocal shareholding (mochiai ) for the same purpose, as well as for insulating
management of the firms involved against internal interference at
the general shareholders’ meeting by mutual consideration (exchange
of blank proxies) and against external control in the form of hostile takeovers; and
(3) the cross-shareholding within certain enterprise groups.251
There are at least two different types of enterprise groups (keiretsu or
kigyò shùdan).252 Vertically structured groups like Toyota or Matsushita
have a pyramid structure with a large industrial firm at the top and
cascades of mostly unilateral shareholdings in subcontractors or distributors, encompassing some 5,000 medium and smaller firms in
the case of Toyota.253 Cross-shareholding is typical for the other kind,
the horizontally structured groups. At present there are six major
and several smaller groups of this type. Three of the big ones are
centered around different banks; the three other major groups Mitsui,
Mitsubishi, and Sumitomo—are formed at the core out of former zaibatsu
companies. The re-formation began already in the 1950s after the
restrictions on mergers, acquisitions, and intercorporate shareholding had been liberalized again.254 However, the new groups have a
250
Cf. Baum, supra note 244, at 60 with further references.
Cf. Baum, supra note 244, at 61–62 with further references.
252
Cf. the overviews of Baum, supra note 244, at 63–71, and Takahashi, supra
note 160, at 4–18; both with extensive references to the vast literature dealing with
the enterprise groups.
253
These are only the ones with direct relationships; they themselves have in
turn a close relationship with some other 30,000 small firms.
254
Cf. Miyajima, supra note 221, at 386 et seq.; Suzuki, supra note 240, at 13.
251
390
very different structure from the zaibatsu. They are not family owned
and the former holding company (which was forbidden in the
Antimonopoly Law of 1947)255 has been functionally replaced by a
cross-shareholding structure. Although the individual percentage of
participation is small—on average less than two percent in a given
group company—the accumulated holdings of all group members
together in that company amounts to an average of more than 20
percent.256 Similar to the zaibatsu, the horizontal groups once more
represent a considerable concentration of economic power. In 1990
they held approximately one quarter of all outstanding shares of
Japanese stock corporations, and more than half of all listed companies belonged to one of the six horizontal keiretsu.257 Quite contrary to their economic relevance, these groups are only subject to
rudimentary regulation, as a law of combines (Konzernrecht) is not
yet fully developed in Japan.258
The major reason for the establishment of the cross-shareholding
structure was the fear of hostile takeovers. These fears intensified
when Japan joined the OECD in 1964 and the wartime-like controls
on foreign trade, exchange, and especially capital movements had
to be gradually liberalized. The Japanese government feared a sellout of domestic industries to foreign firms. Therefore it resold shares
it had acquired during the securities crisis of the early sixties to designated Japanese companies, thus enhancing the cross-shareholding
pattern.259 As a result, there is no external market for corporate control by takeovers in Japan, and internal owner control over management is also (arguably) not intensely exercised because friendly
shareholders are typically passive owners. Within the web of crossshareholdings, the managers of the involved firms have de facto
become their owners. The consequences for corporate governance
255
Until the amendment of the AML in 1997, cf. F. Siegfanz, HoldingGesellschaften in Japan und die Teilnovellierung des Antimonopolgesetzes von 1997
[Holding Companies in Japan and the Amendment of the Antimonopoly Law in
1997], ZJapanR No. 4, 58–68 (1997).
256
257
Cf. Baum, supra note 244, at 66 with further references.
258
Cf. Takahashi, supra note 160, at 40–42; I. Kawamoto, Handels- und
Gesellschaftsrecht [Commercial and Corporate Law], in: Japanisches Handels- und
Wirtschaftsrecht [ Japanese Economic and Business Law], at 133 (H. Baum & U.
Drobnig, eds. 1994).
259
391
in Japanese corporations are under intense discussion,260 as is the
question of a possible change in the group structure.261 More generally, the future of the group-oriented stakeholder capitalism in
Japan as such has become increasingly disputed.262 These questions
are beyond the scope of this chapter. However, an outline of the
institutional background for discussing reform and development of
corporate law after 1945 is provided.
2. Development of Corporate Law
Corporate law has been repeatedly subject to bigger and smaller
reforms in postwar Japan. The first comprehensive amendment of
the Shòhò took place in 1950 and was still initiated by SCAP. Other
amendments of the regulations on the stock corporation occurred in
each following decade.263
a) Reform of 1950
During the first years of the occupation, the attention of SCAP was
not focused on commercial and corporate law. The far-reaching regulatory reforms in connection with the liquidation of the zaibatsu and
the deconcentration of economic power first came to a conclusion
with the promulgation of the Antimonopoly Law in 1947 and other
legislation mentioned above. Then attention was eventually turned
260
The extensive international discussion on corporate governance in Japan is
analyzed and summarized by H. Baum, Zur Diskussion über vergleichende Corporate
Governance mit Japan [Comparative Corporate Governance with Japan], 62 RabelsZ
739–786 (1998); the article contains a comprehensive bibliography of Western literature on corporate governance in Japan (pp. 779–786).
261
Cf. E. Takahashi, Changes in the Japanese Enterprise Groups?, in: Japan:
Economic Success and Legal System, at 227–236 (Baum, ed. 1997).
262
Cf. H. Baum, Emulating Japan?, in: Japan: Economic Success and Legal System,
at 1–24 (id., ed. 1997); I. Nakatani, A Design for Transforming the Japanese
Economy: J. Jap. Stud. 23 (1997) 399–417; see also infra at V.
263
We will here concentrate only on the development of corporate law; for a Western
commentary on Japanese corporate law, see, e.g., Kawamoto, supra note 258, at 47–144;
I. Kawamoto, M. Kishida, A. Morita, Y. Kawaguchi & Y. Iga, Japan, in:
International Encyclopaedia of Laws, Vol. 2, Corporations and Partnerships (K.
Geens, ed. 1994); a recent bibliography of Western materials on Japanese corporate
law can be found in H. Baum & L. Nottage, Japanese Business Law in Western
Languages: An Annotated Selective Bibliography, at 132–138 (1998).
392
in 1949 to a comprehensive reform of the corporate law section in
the Shòhò.264 At that time the Securities and Exchange Law of 1948
had already laid the basis for the regulation and functioning of the
capital market in accordance with the aforementioned securities
democratization movement. Not surprisingly, one of the principal
aims of the corporate law reform was to strengthen the status of the
shareholder as part of the broader democratization target.
However, unlike securities or anitimonopoly regulation, the Japanese
side in the drafting committee saw no need for such a reform of the
Shòhò and opposed the plans of SCAP.265 Nevertheless, a draft was
prepared which closely followed the model of the U.S. Uniform Stock
Transfer Act of 1909 and the Illinois Business Corporation Act of
1933. The latter was utilized not because of its specific excellence,
but rather because the SCAP officials in charge happened to come
from Chicago.266 In spite of further opposition from a reviewing body
of scholars, lawyers, etc., called the Legislative Council, the draft was
presented to the Japanese Diet and was enacted without changes in
1950.267
The amendments to the Shòhò were aimed at three targets: (1)
redistribution of corporate powers, (2) strengthening of shareholder
rights, and (3) new mechanisms for attracting capital investment.
The forced sale of shares in the wake of the zaibatsu dissolution
and other deconcentration efforts had led to a much broader spread
of share ownership. Before, major management decisions in the
zaibatsu with their closely held share structure were made by a small
number of shareholders at the general meeting, which had unlimited
power. With the new fragmentation of share ownership and the large
numbers of shareholders, this practice was no longer sustainable. To
secure corporate efficiency, the reform stipulated a transfer of authority from the shareholders’ meeting to the board of directors, as was
264
An excellent analysis of that reform can be found in T. Blakemore &
M. Yazawa, Japanese Commercial Code Revisions, 2 Am. J. Comp. L. 12–24 (1953);
the following passage draws on that source; comprehensive Japanese commentaries
are H. Okazaki, Kaisetsu kaisei kaisha-hò [Explaining the Amended Corporate Law]
(1950); T. Suzuki & T. Ishii, Kaisei kaisha-hò [Explaining the Amended Corporate
Law] (1951); K. Òsumi & T. Òmori, Chikujò kaisei kaisha-hò kaisetsu [Explaining the
Amended Corporate Law Article by Article] (1951).
265
Cf. Blakemore & Yazawa, supra note 264, at 13 et seq.
266
ID. at 15; M. Nakahigashi, Shòwa nijügo-nen shòhò kaisei [The Commercial Law
Reform of 1950], 31 Chùkyò Hògaku No. 13, at 14 (1995).
267
Law No. 167.
393
the established practice in the U.S. Thus the general meeting no
longer had an exhaustive authority; instead, its power was limited
to matters enumerated in the law or laid down in the corporate
charter (Art. 230–2 of the revised Shòhò ).268 This change called for
a new institu-tion: a board of directors that collectively holds and
exercises corporate power and managerial functions.269 Before the
amendment, individual directors had the authority to represent the
corporation.
But the general meeting not only lost important parts of its authority,
the powers of the corporate auditors (kansayaku) were also significantly
restricted. The auditors used to hold far-reaching powers of investigation and examination of the corporate affairs; after the reform
they were restricted to auditing financial statements and reporting
to the general meeting.270 The loss of powers of the auditors was
compensated with an increase of powers of individual shareholders.
In some kind of dialectical process, the shift of managerial powers
from the shareholders’ meeting to the board of directors was counterbalanced by the strengthening of the position of the individual
shareholder. SCAP considered this essential for the realization of corporate democracy and sufficient minority protection, but all of the
Japanese committee members vehemently opposed it as too “revolutionary”. They feared—not without reason—that the change would
encourage shareholder strife and corporate blackmailing.271 However,
the “suggestions” of SCAP were followed, and among other changes
shareholder voting rights were reinforced by the abolition of voting
restrictions in the corporate charter, the introduction of cumulative
voting, enhanced inspection rights, etc. Furthermore, directors’ fiduciary
responsibilities to their corporation were articulated and their liabil-
268
Blakemore & Yazawa, supra note 264, at 16; R. Iwasaki, Sengo shòhò gakushi
shokan [Essays on the History of Commercial Law after World War II], at 32 (1996).
269
Blakemore & Yazawa, supra note 264, at 17; Kitazawa, supra note 176, at
80; Òsumi & Òmori, supra note 264, at 251.
270
Blakemore & Yazawa, supra note 264, at 17; J. Matsuda, Das neue japanische Aktienrecht [The Amended Japanese Law of the Stock Corporation], 24 RabelsZ,
at 124 (1959); Kitazawa, supra note 176, at 82; Òsumi & Òmori, supra note 264,
at 315 et seq.
271
Blakemore & Yazawa, supra note 264, at 19.
272
For a later assessment of these duties and liabilities, see M. Kondo, The
Management Liability of Directors, 20 Law in Japan, 150–172 (1987); R.W. Dziubla,
Enforcing Corporate Responsibility—Japanese Corporate Directors’ Liability to Third
Parties for Failure to Supervise, 18 Law in Japan, 55–75 (1985).
394
ity for improper activities was made more stringent.272 To ensure
that these rights and obligations could be enforced, a derivative suit
was introduced following again the American model.273 To enhance
the property rights of the shareholders, restrictions on transferability were abolished.
Finally, new methods of corporate finance were necessary because
the former zaibatsu system of limited capital subscription to carefully
selected investors was—or seemed to be—no longer sustainable.
Rather, new money had to be attracted from public investors in the
open market. SCAP recommended the introduction of various instruments from American corporate law to facilitate the raising of capital and to provide for financial flexibility.274
What were the practical results of the reform? In spite of introducing
the American model in rewriting the Japanese corporate law, management and the newly grown number of individual shareholders were
not prepared to “embrace the democratization of corporate governance”.275 Rather, the unfamiliarity of the public with its new corporate
powers as shareholders led to voting rights abuses, and management
only reluctantly accepted their participation, which it sought to avoid
whenever possible. For sure, the occupation reforms of the securities
and corporate laws had introduced a shareholder-oriented agency model
of the corporation that “calls out for legal enforcement of the corporate contract”.276 However, in practice this model bears little resemblance to how the Japanese firm is actually organized and monitored,
as the legally mandated corporate organs do not play a decisive role
in corporate governance in Japan.277 Although it is not possible to
go into details here, it should be noted for example that, in contrast
to the U.S. practice, outside directors are almost non-existent on
Japanese boards, and that auditors in spite of their controlling position are in most cases not independent from management either. The
function of the general shareholders’ meeting is a mere formality,
273
Blakemore & Yazawa, supra note 264, at 20–21; H. Nakajima, Kabunushi
daihyò soshò ni okeru soshò sanka [Participation in the Derivative Suit], in: Kabunushi
daihyò soshò taikei [The System of the Derivative Suit], at 195 et seq. (H. Kobayashi
& M. Kondò, eds. 1996).
274
Blakemore & Yazawa, supra note 264, at 18–19; Nakahigashi, supra note
266, No. 1, at 156 et seq.; J. Yazawa, Shòhò kaisei [Reform of the Commercial
Code], in: Arisawa, supra note 234, at 237.
275
Heftel, supra note 237, at 143–144.
276
C. Milhaupt, A Relational Theory of Japanese Corporate Governance:
Contract, Culture, and the Rule of Law, 37 Harv. Int’l L.J., at 19 (1996).
277
id. at 19–20.
395
notwithstanding the fact that some basic decisions like appointing
directors and auditors are still legally assigned to the meeting. The
average regular (yearly) meeting of a listed Japanese corporation lasts
less than 30 minutes and, as a further hindrance to shareholder participation, 90 percent of these meeting are held at the same day in
late June at the same time each year all over Japan.278
Another prominent example of the non-use of legal institutions
used to be the enforcement of shareholder rights by derivate suits.
Although this control mechanism was introduced in the 1950 reform,
during the first thirty-five years of its existence no more than approximately 20 cases were litigated.279 Ex post control of management
through the courts used to be exercised sparingly in Japan.280 This
only changed somewhat after the 1993 reform of the commercial
code when the number of derivate suits rose significantly.281 However,
other non-legal monitoring mechanisms seem to have worked quite
well as a substitute for the legal ones, which at least seems to be
indicated by the success of Japanese firms—unless one tends to disregard corporate governance as less important than other factors for
economic success.282
278
The working—and non-working—of the legally mandated corporate organs
is analyzed in H. Baum, Rechtsformen und Entscheidungsstrukturen in japanischen
Unternehmungen [Legal and Operational Structures of Japanese Firms], in: Banken
in Japan heute, at 111–134 (von Stein, ed. 1994); M. Hirata, Die japanische
Torishimariyaku-kai: Eine rechtliche und betriebswirtschaftliche Analyse [The Japanese
Torishimariyaku-kai: A Legal and Economic Analysis], Zeitschrift fur BetriebswirtschaftErgänzungsheft 3/1996, at 1–27 (1996).
279
Cf. S. Kawashima & S. Sakurai, Shareholder Derivative Litigation in Japan:
Law, Practice, and Suggested Reforms, 33 Stan. J. Int’l L., at 17 (1997).
280
For a general description of shareholder legal activities, see M. Hayakawa,
Shareholders in Japan—Attitudes, Conduct, Legal Rights, and their Enforcement,
in: Japan: Economic Success and Legal System, at 237–249 (H. Baum, ed. 1997).
281
Cf. Kawashima & Sakurai, supra note 279, at 18; see also E. Takahashi,
Aktionärsklagen in der japanischen Rechtsprechung [Shareholder Suits and Japanese
Courts], ZJapanR No. 6, 101–107 (1998); H. Oda, Derivative Actions in Japan, in:
Current Legal Problems, at 161–190 (1995); a recent German study deals with these
questions in greater detail: cf. O. Kliesow, Aktionärsklagen in Japan [Shareholder
Suits in Japan] (2001).
282
As mentioned before, there is an extensive international discussion about how
corporate governance works in Japan, cf. Baum, supra note 260; a list of (Western)
publications which place a special interest on the relationship between corporation
law and corporate governance might include: Heftel, supra note 237, at 135–206;
H. Baum & U. Schaede, Institutional Investors and Corporate Governance in
Japanese Perspective, in: Institutional Investors and Corporate Governance, at
609–664 (T. Baums, R. Buxbaum & K. Hopt, eds. 1994); Milhaupt, supra note
276, at 3–64.
396
b) Further Reforms
The comprehensive reform of 1950 was not the end but rather the
beginning of a series of bigger and smaller amendments of corporate law. Most of them were triggered in some way or other either
by the attempt to reconcile corporate reality with law or to improve
corporate governance, thereby undoing parts of the changes introduced in 1950.283
In 1962, rules of corporate reporting were amended.284 In 1966,
one of the reforms of SCAP was undone: once more corporations
were permitted to restrict the transfer of shares in their charter.285
This reintroduction of a “non-democratic” device to protect an incumbent management has to be seen in connection with the growing
fear of hostile takeovers at that time, described above.286
In 1974, another piece of the reform initiated by SCAP was up
for revision: the powers of the auditor.287 As we have seen, these had
been considerably limited in the 1950 reform when they were restricted
to auditing financial statements. Various bankruptcies which happened
without the auditor noticing the deterioration of company performance
beforehand showed deficiencies of that system. The 1974 amendment
of the Shòhò 288 tried to strengthen the powers of the auditor again
by giving him the authority to supervise the ongoing business activities of the board of directors.289 Thus he was (again) made the
“guardian of the corporate interest vis-à-vis the directors”, a role
individual shareholders were not sufficiently able to fulfill.290 The
resistance of the Japanese business structure to an adaptation of the
283
Another overview can be found with S. Maruyama, Historischer Überblick
über das Aktienrecht Japans [A Historical Overview Over the Law of the Stock
Corporation in Japan], 94 Zeitschrift für vergleichende Rechtswissenschaften, 283–291
(1995); see also Kawamoto, Kishida, Morita, Kawaguchi & Iga, supra note 263,
at 55–60; Suzuki & Takeuchi, supra note 111, at 43 et seq.; S. Morimoto, Kaishahò [Corporate Law], at 47 et seq. (2nd ed. 1995).
284
Law No. 82 of 1962.
285
Law No. 83 of 1966.
286
Cf. supra text accompanying notes 251–261; M. Tatsuta, Kaisha-hò [Corporate
Law], at 206 (6th ed. 1998).
287
The reform is commentated by M. Smith, The 1974 Revision of the Commercial
Code and Related Legislation, 7 Law in Japan, 113–132 (1974); see also J. Yazawa,
K. Ueyanagi, T. Òtori, A. Takeuchi & H. Tanigawa (eds.), Chùshaku Kaisha-hò
[Corporate Law Commentary], special Vol., Shòwa yonjùkyù-nen kaisei [The Reform
of 1974] (1980).
288
Shòhò no ichibu o kaisei suru hòritsu, Law No. 21 of 1974.
289
Cf. Art. 274 Shòhò as amended.
290
Smith, supra note 287, at 121.
397
postwar revisions can be clearly seen. The mechanism of the derivative
suit, which was thought to counterbalance the reduction of powers
of the auditor, did not work.291 The reform was not confined to the
amendment of the Commercial Code but was accompanied by an
additional law introducing a differentiation between small, medium,
and large companies, the Shòhò tokurei-hò.292 The audit system for
small companies was not much changed, but the role of the auditor
in medium and large companies was significantly altered, and in the
latter an accountant auditor was introduced. These companies must
now be audited by independent professionals called kaikei kansa-nin
(Art. 2 Shòhò tokurei-hò ).293
In retrospect, it can be said that the 1974 reform also did not
work adequately because of a lack of qualified auditors and a lack
of independent auditors, as most used to be former employees of
the company.294 This led to another reform in 1993, when the role
of the auditor was further strengthened by an extended term and
the statutory minimum number of auditors was raised to three in
large companies that have to form some kind of supervisory board,
the kansa yakkai (Art. 18 Shòhò tokurei-hò ).295
In 1981, yet another piece of the 1950 reform came under the
scrutiny of the lawmaker: in a major revision of the Shòhò, legislators
tried—among other things—to revitalize the shareholders’ meeting as
one of the main aims of that reform.296 The deterioration of the meeting to a mere formality was initiated by SCAP’s decision to shift
power from the meeting to the board.297 A second factor contributing
291
Cf. Smith, supra note 287, at 116.
Kabushiki kaisha no kansa to ni kansuru shòhò no tokurei ni kansuru hòritsu [Law for
Special Rules to the Commercial Code Concerning the Audit of Stock Corporations],
Law No. 22 of 1974.
293
For further details, see Smith, supra note 287; Baum, supra note 278, at 122–124;
Kawamoto, supra note 263, at 80–83; Otto, supra note 110; Tatsuta, supra note
286, at 128 et seq.; T. Seki, Kaisha-hò gairon [Overview over Coporate Law], at 335
et seq. (1994).
294
Cf. the sources cited in note 278.
295
Cf. K. Yoshimoto, 1993 Company Law Amendment on the Supervisory System
and Corporate Governance, 41 Osaka U.L. Rev., 23–31 (1994); S. Yoshita, Heisei
gonen rokunen kaisei shòhò [The 1993 and 1994 Amendments of the Commercial Code],
at 229 et seq. (1996); H. Maeda, Kaisha-hò nyùmon Introduction to Corporate Law],
at 399 et seq. (4th ed. 1995).
296
Shòhò nado no ichibu o kaisei suru hòritsu, Law No. 74 of 1981.
297
The reform and its background are analyzed by A. Takeuchi, Shareholders’
Meetings Under the Revised Commercial Code, 20 Law in Japan, 173–186 (1987);
Y. Taniguchi, Japan’s Company Law and the Promotion of Corporate Democracy—
A Futile Attempt?, 27 Colum. J. Transnat. L., 195–241 (1988).
292
398
to this trend was a typical Japanese phenomenon, the practice of
“special shareholders” or sòkaiya. These are criminals who rather successfully have tried—and continue to do so, albeit on a somewhat
reduced level—to extort money from the company by threatening
to disrupt the meeting or to reveal negative information about the
company and its management.298
The 1981 amendment introduced among other things the duty of
directors and auditors to explain matters on the agenda of the meeting (Art. 237–3 Shòhò ). Shareholders were given the right to make
proposals for the meeting to discuss (Art. 232–2 Shòhò ). Also, the
rights of minority shareholders to demand a convocation of a meeting or to propose a resolution were enhanced. In summary, it was
not actually so much that substantial power was re-transferred to the
shareholders’ meeting, but the legislators instead attempted to strengthen
the meeting for those matters which are left under its control.299 With
respect to the activities of the sòkaiya, the revised code introduced a
prohibition of granting benefits to anyone in relation with the person’s
use or non-use of his or her shareholder rights (Art. 294–2 Shòhò ).
This prohibition has not wiped out the practice of the sòkaiya—many
companies still make payments to them—but it has at least reduced
their presence somewhat. With respect to the revitalization of the
meeting, the reform did not render the desired results.300 A Japanese
commentator described the various attempts to promote corporate
democracy in shareholders’ meetings of Japanese corporations as “discouraging, to say the least”.301 This may be so, but again one has
to point out that the performance of Japanese corporations has (on
average) not been discouraging overall during the last four decades.302
The final reform to be mentioned here dealt directly with the discrepancy described at the beginning between corporate law and corporate reality.303 In 1990, an amendment of the Shòhò 304 and other
laws tried to reconcile both.305 One the one hand, the procedures
298
A good description can be found in R. Miyawaki, Sòkaiya (Unternehmenserpresser) [Sòkaiya (Company Extortioners)], ZJapanR No. 4, 69–76 (1997).
299
Cf. Taniguchi, supra note 297, at 205.
300
Cf. the sources cited supra in note 278.
301
Taniguchi, supra note 297, at 231.
302
But cf. infra at 4.5.
303
Cf. supra text accompanying notes 245–247.
304
Law No. 64 of 1990.
305
For a good overview of the reform, see M. Hayakawa & E. Raidl-Marcure,
Japanische Gesellschaftsrechtsreform—Teilnovelle zum Aktien- und GmbH-Recht
crisis of the 1990s — some afterthoughts
399
for incorporation of a stock corporation were simplified, e.g., only
one promoter was necessary instead of seven as before. On the other
hand, a system of minimum capitalization was introduced: ten million yen for stock corporations and three million yen for limited liability companies. Existing companies had to adapt after a grace
period. The reform of 1993 on corporate governance by facilitating
derivative actions and enhancing the power of the auditor has already
been mentioned.306 Whether the long-term goals will be achieved
remains to be seen.
In summary, one can see a strong shift from the German corporate
model towards the U.S. model during the reforms under the occupation, as was the case in other areas of economic law. However, after
each of the two receptions there has been a gradual adaptation and
revision of those models according to Japanese necessities and practice. As a result, we find today an original conception of corporate
law in Japan, with its own strengths and weaknesses.
4.5
The structural crisis of the 1990s—Some
afterthoughts307
The story told so far has been one of tremendous success. Under
difficult circumstances, Japan has managed more than once in a surprisingly short span of time to accomplish necessary changes which
more often than not have been far reaching. When the economic
success of the Japanese system reached its pinnacle in 1989, Japan
had long since become a model. In comparison to the U.S., investment in Japan has been regarded as more patient and employment
as more long-term oriented. These long-term relations resulted in a
greater extent of cooperation and mutual trust, and have been shielded
against short-term market pressures by political institutions such as
more intense and paternalistic regulatory regimes. Generally, we can
observe a greater distrust towards potentially disruptive market forces.
In other words, one can (arguably) say that the economy in postwar
[Reform of Japanese Corporation Law—Amendment of Stock Corporation and Limited
Liability Company Law], 38 Recht der internationalen Wirtschaft, 282–290 (1992).
306
Cf. supra notes and text accompanying notes 281 and 295.
307
These thoughts are set out in greater detail in Baum, supra note 260 and note
262; id., Globalisation vs. Paternalistic Regulation, in: Law and Development in
East Asia, at 131–153 (Antons, ed. 2003).
400
Japan is more constrained by non-economic objectives than, for example, the American economy, which is to a greater extent liberated
from collective obligations to serve others.
However, in early 1990 the overheated economy started to collapse
and a kind of “institutional fatigue”308 suddenly became visible. The
prolonged structural recession of the 1990s has been accompanied
by gigantic losses in the financial industry, record numbers of bankruptcies, rising unemployment, and, last not least, by numerous scandals in various sectors of business, administration, and bureaucracy.
This throws a light on severe structural deficits in the political, economic, and legal institutions and raises questions about the viability
of the so-called “Japanese model” in a changed global environment.
The pressures of increasing globalization met a protected and overregulated Japanese economy not sufficiently prepared for change,
where state interference had distorted the markets (especially the
financial markets)309 and cooperation all too often had turned into
collusion.
These difficulties have called not only for political but also for
legal answers. Already some far-reaching and ongoing reforms of
Japan’s financial markets regulation have started in the mid-1990s,
which might change what Western observers have aptly called a
“regulatory cartel model of decision making”.310 Economic necessity
allowed for a re-introduction of the holding company in a major
reform of the Antimonopoly Law in 1997.311 Furthermore, stock
options were made available for management and employees in 1997
as one of the means to revitalize the Japanese economy.312 How these
basically deregulatory and market-oriented trends will affect Japanese
corporate law remains to be seen, but at least the discussion about
corporate governance has once more intensified from the late 1990s.313
In general, it might well be that we will observe yet another major
shift in regulatory policy and structure.
308
Nakatani, supra note 262, at 399.
A very informative, albeit journalistic, report can be found in P. Hartcher,
The Ministry: How Japan’s Most Powerful Institution Endangers World Markets
(1998).
310
C. Milhaupt & G. Miller, A Regulatory Cartel Model of Decision Making
in Japanese Finance, ZJapanR No. 4, 18–29 (1997).
311
Cf. Chapt. 5.8.
312
M. Kitamura, Sutoku opushon seido [The System of Stock Options], Jurisuto
No. 1116, 25–31 (1997).
313
Cf. T. Okushima (ed.), Kòporèto gabanansu [Corporate Governance] (1996);
Z. Shishido, Kòporèto gabanansu ni okeru kabunushi sòkai no igi [The Role of the General
Meeting for Corporate Governance], Shòji Hòmu No. 1444, 2–6 (1996); S. Morimoto,
309
crisis of the 1990s — some afterthoughts
401
Appendix
Table 3: Number of Registered Companies in Japan 1895–1995* †
Year
1896
1900
1905
1910
1915
1920
1925
1930
1935
1940
1945
1950
1955
1960
=1980
1985
1990
1995
gòmei kaisha
(General
Partnership)
gòshi kaisha
(Limited
Partnership)
kabushiki kaisha
(Stock
Corporation)
yùgen kaisha
(Limited Liability
Company) ††
344
784
1,627
3,202
4,024
6,954
6,743
9,841
17,935
15,663
9,358
10,276
10,147
9,928
7,112
6,166
5,595
5,724
1,667
3,560
4,546
6,411
10,035
14,912
17,751
32,259
52,047
37,592
21,606
28,402
40,058
43,215
36,510
33,266
28,483
26,485
2,585
4,254
4,426
5,277
8,106
20,568
20,736
21,402
24,566
35,936
46.942
154,497
224,032
287,350
791,297
887,596
1,054,491
1,123,034
–
–
–
–
–
–
–
–
–
1,805
18,722
45,306
137,756
198,936
606,461
723,523
971,394
1,219,214
Sources:
Nihon Tòkei Kyòkai [ Japan Statistical Association] (ed.), Nihon chòki tòkei sòran [Historical
Statistics of Japan] Vol. 4 (1987); Kokuzei-Shò [National Tax Administration Agency] (ed.),
Zeimu tòkei kara mita hòjin kigyò no jittai [Actual Conditions of Corporate Business from the
Perspective of the Tax Statistics], various issues; N. Takamura, Kaisha no tanjò [The Rise of
the Corporation] (1996); own calculations.
* The given figures refer to companies that have been actively conducting business and
therefore have been registered with the tax authorities. At any given time, more companies
will have been registered in the company registers as mere inactive corporate shells or socalled “sleeping corporations”. Furthermore, there have been changes in the method of counting, especially in 1949, so that the figures may not be comparable without any restrictions.
However, the relative importance of the various types can be clearly seen. For the years
between 1960 and 1980, no reliable and comparable statistics were available.
† Another form of enterprise, the kabushiki gòshi kaisha or partnership limited by shares, was
introduced in 1899 but never flourished in Japan; it was abolished in 1950. At any given
time there were never more than a maximum of some 50 companies registered using this
legal form.
†† Introduced in 1940.
Kòporèto gabanansu to shòhò kaisei [Corporate Governance and the Reform of the
Commercial Code], Jurisuto No. 1121, 63–70 (1997); M. Kitamura, Kòporèto gabanansu
ni kansuru shòhò kaisei mondai [Problems of the Reform of the Commercial Code
Regarding Corporate Governance], Shòji Hòmu No. 1477, 2–10 (1997); H. Kanda,
Kòporèto gabanansu to kaisha-hò [Corporate Governance and Corporate Law], Tòkyò
Kabushiki-kon Wakai Kaihò No. 560, 2–38 (1998).
CHAPTER FIVE
INTELLECTUAL PROPERTY AND ANTI-TRUST
Christopher Heath
5.0 Literature (general)
(without author), Chiteki zaisan hò no keifu (On the Genealogy of
Intellectual Property Law), writings in honour of Dr. Shoen Ono,
Tokyo 2002; AIPPI Japanese Group, Japanese Laws Relating to Industrial
Property, annually updated; E.V.A. de Becker, Patent, Trade Mark,
Design and Utility Model Laws of Japan, Tokyo 1949; F.K. Beier,
Gewerbefreiheit und Patentschutz, Zur Entwicklung des Patentrechts
in Deutschland im 19. Jahrhundert, in: Coing/Wilhelm (ed.), Wirtschaft und Kodifikation des Privatrechts in im 19. Jahrhundert, Vol.
IV, Frankfurt 1979; T. Doi, The Patent System of Japan, Patents
& Licensing June 1975, 3; Y. Fuse, Edò jidai ni okeru mukei zaisan
(Intangible Property in the Edo Period), in: Chiteki shoyùken ronbun (Writings in Honour of Sugibayashi), Tokyo 1985, 117;
Gareis/Werner, Patentgesetzgebung, Vol. V Berlin 1891, Vol. VI
Berlin 1895; H. Iizuka, Japanisches Industrierecht, Berlin 1926;
Japanese Patent Office, Japanese Laws Relating to Industrial Property,
Tokyo 1957; Kògyò shoyùken kenkyùjò (Industrial Property Research Institute)
(ed.), Sangyòken hòan taishò 7 nen ni kan suru shiryò (Materials on
the 1918 Draft Industrial Property Law), 3 Tokkyò Kankyù 48 [1987];
4 Tokkyo Kenkyù 44 [1987]; J. Kohler, Der Unlautere Wettbewerb,
Berlin 1914; S. Ladas, International Protection of Industrial Property,
Cambridge (Mass.) 1930; Lönholm, Die neuen japanischen Gesetze
über Patente, Handelsmarken, Muster und Gebrauchsmuster,
Yokohama 1909; T. Mikuriya, Takahashi Korekiyo ikòshù to sono
shuhen (On the Posthumous Works Edition of K. Takahashi’s Works
and Related Matters), 5 Tokkyo Kenkyù 24 [1988] T. Nagamura,
Takahashi Korekiyo tokkyo kyokuchò no ikò ni tsuite (On the
Unpublished Posthumous Works of Patent Office President Korekiyo
Takahashi), 27 Tokkyo Kenkyù 43 [1999]; 28 Tokkyo Kenkyù 57
[1999]; 29 Tokkyo Kenkyù 46; A. Osterrieth, Patent-, Muster- und
inventive activity, intellectual property
403
Marketschutzgesetze des Erdballs, Berlin 1899 et seq.; G. Rahn,
Gewerblicher Rechtsshutz, in: P. Eubel (ed.), Das japanische
Rechtssystem, Frankfurt a.M. 1979, 417; N. Suzuki/Y. Inaba, Taishò
10 nen hò shùgiin shingi no keika [1–12] (On the Records of the
Diet for the 1921 Revision of the Industrial Property System) (12
parts), 18 Tokkyo Kenkyù 61 [1994]; 19 Tokkyo Kenkyù 62 [1995];
20 Tokkyo Kenkyù 53 [1995]; 21 Tokkyo Kenkyù 87 [1996]; 22
Tokkyo Kenkyù 63 [1996]; 23 Tokkyo Kenkyù 70 [1997]; 24 Tokkyo
Kenkyù 75; 25 Tokkyo Kenkyù 57 [1998]; 26 Tokkyo Kenkyù 75
[1998]; 27 Tokkyo Kenkyù 57 [1999]; 28 Tokkyo Kenkyù 70 [1999];
29 Tokkyo Kenkyù 57 [2000]; Tokkyo Chò (Patent Office), Tokkyo
seidò 70nen shi (70 Years of History of the Patent System), Tokyo
1955; Tokkyo Chò (Patent Office), Japanese Laws Relating to Industrial
Property, Tokyo 1957; Tokkyo Chò (Patent Office), Kògyò shoyùken
seidò 100nen shi (100 Years of History of the Industrial Property
System), 3 vols., Tokyo 1985; Tokkyo Chò (Patent Office), Kògyò
shoyùken seidò kono 10nen no ayumi (Another 10 Years of the
Industrial Property System), Tokyo 1995; K. Vogt, Die japanischen
Gesetze über Patente, Gebrauchsmuster, Muster und Warenzeichen,
Yokohama 1921; A. Werner, Die Patent- Muster- und Markenschutzgesetze des Erdballs, Berlin 1896.
5.1 Inventive Activity, Intellectual Property and
Industrial Policy
Christopher Heath
1. Introduction
For centuries, Japan has regarded the Western world with fear and
fascination. Fear because the West’s religious zeal had finally led to
Japan’s self-inflicted isolation between 1630 and 1852. Fascination
because of the West’s technological superiority, in the 16th century
best exemplified by the importation of guns, which until that time
were unknown to the Japanese. This import of foreign technology
stirred what could be identified as one of the driving motors of
Japanese innovative activity: curiosity and the willingness to learn. Being
brought in contact with a Portuguese gun, the Japanese nobleman:
intellectual property and anti-trust
404
“Lord Tokitaka saw it and thought it was the wonder of wonders. He
did not know its name at first and the details of its use . . . Thus, one
day, Tokitaka spoke to two alien leaders through an interpreter:
‘Incapable, though I am, I should like to learn about it.’ Whereupon
the chiefs answered also through an interpreter: ‘If you wish to learn
about it, we shall teach you its mysteries.’ . . .”1
Commander Perry encountered the same curiosity when his ships
anchored in Japanese waters in 1852:
“The Japanese proved to be incredibly curious, their curiosity being
aroused by a number of things unfamiliar to them. They did not only
inspect all things in the most minute details, but also followed officers
and crew, and used every opportunity to even inspect the smallest
details of their cloths. . . . Upon visiting the ships, the Mandarins and
their following were never addressed. They looked into every corner
and every hold, looked into the muzzles of the cannons, inspected the
smaller weapons, measured the boats, visited the engine room and
never failed to keep an eye on the engineer. Yet, they do not confine
themselves to a mere inspection, yet always made notes and sketches.”2
Whether such curiosity led indeed to a high level of inventive activity in the Edo period is not quite clear. On the one side, innovation was perceived as such a powerful tool for social change that in
1721 the Tokugawa regime enacted a law prohibiting technological
inventions.3 On the other hand, a number of inventions were made
in 17th century Japan:
(1)
(2)
(3)
(4)
A
A
A
A
woven ladies’ hat (1668);
knitted ladies’ hat (1697);
bag for paper towels (1625);
dye for deerskin (1684).4
While Fuse does not offer an explanation as to the obvious contradiction between a statute prohibiting inventions and on-going inventive activity, one can only guess that the statute was enacted in order
to cement the existing social order. Inventions and inventive activity not upsetting the latter might well have been considered harmless
1
R. Tsunoda (ed.), Sources of the Japanese Tradition, New York 1960, 319.
Die Erschließung Japans—Erinnerungen des Admirals Perry, Hamburg 1910,
225/226.
3
Shinkihatto no ofuregaki (Prohibition of Novelties) enacted by the military Bakufu
Regime in July 1721, reprinted Tokkyo Chò (1955), 36.
4
Y. Fuse (1985), 121.
2
405
or even welcome. The interest in development of crafts such as sword
making shows that innovations were sometimes even fostered and
protected by those in power, yet of course under the condition that
the techniques were kept secret and not revealed to outsiders.
When in 1852 the American commander Perry forced Japan to
open up her country, its technological backwardness became apparent. The Meiji government reacted immediately. Instead of banning
technological progress
“knowledge from all parts of the world should be acquired in order
to strengthen the foundations of imperial power”.5
In other words, innovation was still deemed an important tool of
power, but instead of trying to suppress it, it was now going to be
used actively for the purposes of industrial policy. It is important to
understand the different rational underlying the protection of inventions in the West and in Japan. While in Europe and the United
States, the protection of inventions was deemed sort of an innate
right of the inventor,6 in Japan, it was foremost a means of promoting economic growth.
Therefore it does not come as a surprise that in contrast to many
other civil and commercial laws, industrial property laws in Japan
were not enacted due to foreign pressure or in order to have a negotiating tool against foreign nations, but were rather perceived to be
in Japan’s own interest. This is highlighted by a story reported in
the United States during the 1900 visit of Korekiyo Takahashi, the
Japanese Patent Office’s first president, to the USPTO, where he
purportedly said,
“we have looked about us to see what nations are the greatest, so that
we can be like them. We said ‘what is it that makes the United States
such a great nation?’ and we investigated and found that it was patents,
and we will have patents.”7
Thus the institutional and legal framework for the protection of
industrial property rights for the purpose of industrial development
was in place very early. The purpose was, of course, two-fold. First,
5
P. Varley, Japanese Culture 162 [1973].
S. Ladas (1930), 74.
7
U.S. Department of Commerce, Patent Office, The Story of the United States
Patent Office 20 [1972].
6
406
to stimulate innovative activities in Japan itself, and second to attract
foreign technology by offering comprehensive protection. Yet the
actual degree of protection remained below the threshold required
to effectively repress imitations, which early on were considered the
best way to catch up with the West.8 Even Japanese inventors were
struggling with massive amounts of infringing imitations,9 or did not
significantly benefit from their inventions.10 Enforcing intellectual
property rights against acts of infringement was thus not high on
the agenda. Also for this reason, Japan showed little enthusiasm for
enacting a law against unfair competition, something it eventually
had to do in 1934 in order to comply with the mandatory requirements of the Paris Convention (see the History of Japanese Unfair
Competition Law).
2. Political and Institutional Structures
The Japanese Patent Office, responsible for the processing of patent,
utility model, design and trademark applications, was founded in
1885 under the jurisdiction of the Agricultural Ministry, which later
became the Ministry of Trade (MITI). Placing the Patent Office
under the supervision of the Ministry of Trade rather than the
Ministry of Justice facilitated the industrial-development approach
that Japan had taken from the very start. The Patent Office as of
1999 had a staff of 2534 members and an annual budget of 98.7
billion Yen.11
In 1998, the Patent Office handled 401,932 applications for patents,
10,917 for utility models, 39,352 for designs and 112,469 for trade
marks. In the same year 141,448 patents, 27,097 utility models,
8
G. Rahn, Das Japanische am japanischen UWG, GRUR Int. 1992, 362.
The biography of the well-known kimono designer, Heizò Tatsumura, tells the
following: “Among those who had similar ideas, Heizò’s machine-made Gobelins
developed with great pains, were immediately imitated in similar fashion, and such
sharp practice caused Heizò a lot of grief. Hardened by such experiences, Heizò
decided to manufacture only textiles that no one would be able to imitate.” Cited
from: Tatsumara Heizò no sekai (The World of Heizò Tatsumura), Kyoto 1990.
10
Y. Fuse notes that the three inventors who in 1869 invented the rickshaw ( jin
rikusha) did not make any financial profit therefrom despite the fact that by 1902,
20,000 of these had been produced: Y. Fuse (1985), 120.
11
Japanese Patent Office, Annual Report 1999, 49.
9
407
36,264 designs and 132,066 trade marks were registered. More than
20,000 appeals and about 11,000 oppositions were filed.
Apart from the Patent Office, a number of other organisations
are meant to encourage the dissemination of information concerning intellectual property rights. The foremost among these institutions is the venerable Institute of Invention and Innovation (Hatsumei
Kyòkai) which was founded in 1904 and which promotes both innovation and better understanding of industrial property rights.12 The
organisation whose honorary president, Prince Hitachi, is the brother
of the current Japanese Emperor, conducts regular competitions on
inventions, awards prices and has set up a law centre to teach the
basics of IP to non-lawyers. More recently, the organisation has set
up an Asian Intellectual Property Training Center in order to spread
knowledge about the Japanese patent system amongst other Asian
nations.13 Hatsumei Kyòkai has branches in 47 different prefectures
and is a major editor of IP-related publications.
Another organisation which collects information and conducts
research on Intellectual Property Rights is the Japanese Intellectual
Property Association (Chizaiken Kyòkai) founded in 1938.14 Two
organisations that were founded by, or at least enjoyed the support
of MITI, were the Japanese group of AIPPI in 1956 and the Institute
of Intellectual Property (IIP) in 1985.15 While AIPPI basically expresses
the opinion of the international AIPPI organisation, the IIP is seen
as a think tank for research on current topics of Industrial Property
Rights. As an academic institution, Nihon Kògyò Shoyùken Kenkyùkai
( Japan Industrial Property Association), which was established in
1981, should be mentioned.
As a professional body, the Japan Patent Attorneys’ Association
(Benrishi Kai) should be mentioned. This organisation was established in 1915, after the profession as such developed in 1890, and
the first regulations were introduced in 1899. The idea of creating
12
Hatsumei kyokai (1974).
S. Tsuji, 22 Tokkyo Kenkyù 50 [1996]. The aim was to train 1000 persons
mainly from Asian countries in matters of industrial property until the year 2000,
a goal which was indeed achieved.
14
Originally named the Club of the Chrysanthemiums (Chòyòkai); in 1959
renamed the Japan Patent Association (Nihon Tokkyo Chòyòkai), and in 1994 again
renamed.
15
See Plan zur Errichtung eines Forschungsinstitutes für gewerblichen Rechtsschutz
in Japan, GRUR Int. 1984, 329.
13
408
a profession again came from the then President of the Japanese
Patent Office, Korekiyo Takahashi, who wanted to establish a system similar to the U.S. one.16 The first firm of patent attorneys was
established in September 1890 as the “Tokkyo Daishinsha”. Specific
legislation only followed in 1899.17 In 1909, for the first time an
examination was introduced as a requirement for qualification.18 In
1899, after the promulgation of the first Patent Attorneys Act, 138
persons registered as patent attorneys. The first examinations for
patent attorneys were introduced in 1902, which only 9 of the 92
applicants passed. In 1908, the number of patent attorneys had risen
to 421. Apart from registration after examination, also employees of
the patent office could become patent attorneys (a system maintained
until 2002). Also attorneys may register and practice as patent attorneys. For complete statistics on the number of patent attorneys, see
below 4. Up to the change in the Patent Attorneys Act in 2000, the
pass rates of the qualifying exam were very low, and in 1999 for
the first time exceeded 200 (233). Patent attorneys are not allowed
representation in infringement suits, yet can be admitted by the
court as pleading alongside counsel. Under the new Patent Attorneys
Act 2000, they are now allowed to counsel in matters of licensing
agreements.19
All the above organisations help to give industrial property rights
a more common touch than this subject enjoys in most western
countries.
3. Legal Instruments
When compared to other legislative instruments in Japan, two facts
stand out when it comes to legislation in the field of industrial property rights: First that foreign pressure played little or no role in the
16
Benrishikai (1982), 14.
By the Tokkyo Dairi Gyòsha Tòroku Kisoku, Order No. 235 of 9 June 1899.
The revised Patent Act of 1899 for the first time defined the term “agent” (dairinin)
in its provisions.
18
Order of the Ministry of Culture No. 50 of 26 October 1909, in force from
1 November 1909: Tokkyo Dairi Gyòsha Shiken Kisoku.
19
Patent Attorneys Act, Law No. 49/2000 of 26 April 2000, in force since 6
January 2001. Complete text reprinted in 53/8 Patent 44 (2000).
17
409
enactment and subsequent changes of industrial property laws, the
exception being the Unfair Competition Act of 1934. In addition,
perhaps no other field of law has seen so many changes in legislation, thus closely mirroring Japan’s dynamic industrial development:
The Japanese Patent Act, initially enacted in 1871 and repealed one
year later, came finally into force in 1885, was significantly amended
in 1888, 1899, 1909, 1921 and 1959. The current Patent Act of
1959 has undergone no fewer than 25 revisions. While often minor,
they include such important changes as allowing for the patenting
of pharmaceutical substances, allowing multiple claims, allowing the
patenting of microorganisms, paving the way for broadening the
scope of patents and increasing damage awards in cases of infringement. No less important are the publication of examination guidelines for specific fields, e.g., computer software and biotechnological
inventions. Already in 1905, Japan had taken the bold step of introducing the German-based system of protecting utility models as a
form of minor invention, a system particularly suitable to Japan’s
small and medium sized enterprises. Distinct from other statutory
instruments, no clear preferences for a certain foreign legal system
can be detected. While the initial patent statute was based on U.S.
law, the revisions of 1921 and 1959 marked a major shift towards
the German patent system, while the latest examination guidelines
are often the result of bilateral consultations between the European,
U.S. and Japanese Patent Offices. International cooperation in this
field is facilitated and spurred by Japan’s membership to the Patent
Cooperation Treaty (since 1 October 1978).
The Trade Mark and Design Acts, amended almost as often as
the Patent Act, betray stronger influences of the British system, in
particular by adopting a system of substantively examined designs
and introducing the possibility of filing defensive marks (now defunct).
In addition, the influence of international treaties in these fields
appears stronger. In the last century, Japan subsequently joined the
Madrid Agreement on the Suppression of False and Misleading
Goods, the Trademark Law Treaty and the Nice Agreement on the
Classification of Marks.
While becoming a member to the Paris Convention in 1900 affected
all industrial property laws, the 1994 TRIPs Agreement required
only minor revisions of the Japanese IP system.
410
4. International Agreements
Japan is a member to the following international agreements on
industrial property:
– WIPO Treaty: 20 April 1975;
– Paris Convention for the Protection of Industrial Property: 15 July
1899, Stockholm version as of 1 October 1975;
– WTO/TRIPs Agreement: 1 January 1995;
– Madrid Arrangement for the Repression of False or Deceptive
Indications of Source on Goods: 8 July 1953, Lisbon version as
of 21 August 1965, Stockholm additions as of 24 April 1975;
– Trade Mark Law Treaty: 1 April 1997;
– Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks: 14 March 2000;
– Nice Arrangement Concerning the International Classification of
Goods and Services for Registration of Marks: 20 February 1990;
– Strasbourg Arrangement Concerning the International Patent
Classification: 18 August 1977;
– International Convention for the Protection of New Varieties of
Plants (UPOV): 13 September 1982 (1978 version); 24 December
1998 (1991 version);
– Patent Cooperation Treaty: 1 October 1978;
– Budapest Treaty on the International Recognition of the Deposit
of Microorganisms for the Purposes of Patent Procedure: 19 August
1980.
The following agreements relate to copyright law:
– Berne Convention for the Protection of Literary and Artistic Works:
15 July 1899, Paris version as of 24 April 1975;
– Universal Copyright Convention: 28 April 1956, 1971 version as
of 21 October 1977
– International Convention for the Protection of Performers, Producers
of Phonograms and Broadcasting Organisations (Rome Convention):
26 October 1989;
– Agreement on the Protection of Phonogram Producers Against
Reproduction: 14 October 1978;
– WIPO Copyright Treaty: 6 March 2002.
411
5. Industrial Policy in the Last Decade
Particularly since about 1995, efforts have been made to strengthen
Japan’s capacity in basic research and to improve the commercial
exploitation of basic inventions. Two developments in this respect
are noteworthy.
a) Better exploitation of university inventions. In 1998, an Act on
the Promotion of University Inventions was promulgated.20
The structure of the law is unusual because in contrast to normal
Japanese practice, it stipulates the concurrent jurisdiction of two ministries, the Ministry of Culture and the Ministry of Trade. There is
a traditional rivalry between these two Ministries regarding issues of
future technology such as software, multimedia and, in this case, university research. This may well affect the actual implementation of the
law in practice, yet not much can be said about this at that stage.
The approach of the law is not inelegant. In particular, it does
not touch upon any contentious ownership issues that would require
either a change or an explicit reinterpretation of Sec. 35 Patent Act.
Rather, it relies on financial stimulation for marketing.
The main purpose of the law is to subsidise independent technology transfer centres. Owing to the fact that federal and state universities are not allowed to engage in commercial activities, in the
case of these universities (the most likely to come up with any inventions in the first place), a private enterprise would be necessary.
Subsidies are available in the form of financial guarantees in cases
where shares are issued. The issue of shares, and thus the incorporation as a share company, gives the centre a more flexible structure than a limited company, as the first can issue new shares with
greater facility. While professors at federal and state universities may
become shareholders, they are not allowed to engage in the management of private companies. This may, however, be circumvented
by employing professors as “advisors”, in particular where their own
inventions are to be commercialised. One of the parameters for success or failure of the transfer centres will be the flow of information, and another the professional management of the centre. Both
are, however, beyond the framework of legal rules.
20
Act for the Promotion of Use of University Inventions by Private Enterprise,
Law No. 52/1998 as of 6 May.
412
Current Structure and Organisation of Technology Transfer Centres in Japan21
Name
University
affiliation
Day of
foundation
Operational
since
Form of
organisation
Membership/
Funds
Casti
University
of Tokyo
3 Aug. 1998
Dec. 1998
Stock
corporation
Membership
system
Kansai
Technology
Liaison
Office
Kyoto
University,
Ritsumeikan
University
(Kansai)
30 Oct. 1998
Dec. 1998
Stock
corporation
Membership/
Membership
(regional
affiliation)
Tòhoku
Techno
Arch
Tòhoku
University/
region of
Tohoku
5 Nov. 1998
Dec. 1998
Stock
corporation
Membership/
regional
affiliation
Gakkò hòjin
Nihon
University
(NUBIC)
Nihon
University
15 Nov. 1998
Dec. 1998
University
department
Membership
system
Gakkò hòjin Waseda
Waseda
University
University (in
connection
with an
external office)
1 June 1996
April 1999
University
department
Funds available
Tsukuba
Liaison
Kenkyùjò
Tsukuba
University
20 May 1997
April 1999
Stock
corporation
Membership
system
Rikògaku
Shinkòkai
Tokyo
Technical
University
6 Sept. 1946
Aug. 1999
Incorporated
foundation
Membership by
incorporated
companies
Gakkò hòjin Keio Private 1 Nov. 1998
Keio
University
Juku University
Aug. 1999
University
department
No membership system/
No specific
funds
Yamaguchi
TLO
(Technology
Licensing
Office)
Yamaguchi
University
1 Nov. 1999
Dec. 1999
Limited
company
Membership
system
Hokkaidò
TLO
Hokkaidò
University/
region
Hokkaidò
6 Dec. 1999
Dec. 1999
Stock
corporation
Membership
system based
on regional
affiliation
The above table gives an overview of the currently existing technology transfer centres (as of May 2000).
21
211 Tokugikon 6.
413
Under the 1998 Act, government assists the technology transfer
centres to a significant extent. The current system envisages a subsidy of 60% of the centre’s operating costs (excluding costs related
to the application of patents) paid by the state. Most of the centres
seem to operate with an annual budget of 5 million Yen, 3 million
of which is paid by government, 2 million by the university. In addition, government dispatches one senior officer, normally from the
Patent Office, to assist a centre. This is, of course, financially attractive to the centres, yet serves the well known function of governmental bureaucracy to control private industry.
The above subsidies will be paid for five years initially. There is
a good chance that this financial lifeline will be extended.
The difference in the organisational structure (share companies
versus government departments) can be partly explained by the fact
that public universities are not allowed to engage in commercial
activities, while private universities have less problems in that respect.
For that reason, the three universities that set up the technology
transfer centres as university departments are all private universities
(Nihon University, Waseda University, and Keio University).
In some cases, the technology transfer offices are not strictly
affiliated with a certain university, but may rather serve all universities within a certain region. This is the case for the Kansai Centre,
the Tòhoku Centre and the Hokaidò Centre. In these cases, public
universities, state universities as well as private universities are entitled to use the services of the centre, the only condition being that
they find themselves in the region of the centre’s operation.
The form of operation and the purposes also determine the questions of membership. The membership structure shall ensure that
the purposes of commercialisation are best achieved. There are thus
three categories of members. Individual researchers of universities,
universities and private companies. In the case of the Kansai Centre,
the membership structure comprises 27 universities, 434 individual
researchers and 107 private companies.
b) The Basic Intellectual Property Act
In 2002, the Japanese legislature enacted the Intellectual Property
Basic Act 2002.22 The Act has no precedent in other countries, and
22
Law No. 122/2002 of 4 December 2002, in force since 1 March 2003.
414
tries to identify the general political goals of an intellectual property
system in a country that always had to rely on man-made achievements in the absence of natural resources. The basic purposes of the
Act are intensifying the international competitiveness of Japanese
industry, proper protection and exploitation of intellectual property,
and establishment of an intellectual property policy headquarters
within the Prime Minister’s office (Sec. 1). The creation of intellectual property is to be stimulated within universities and business
enterprises by, inter alia, ensuring proper treatment of inventors and
researchers, creating an attractive and suitable working environment,
and guaranteeing the independence of researchers (Secs. 7, 8).23 The
exploitation of intellectual property rights shall be strengthened by
technology transfer centres at universities, and by an increased cooperation between the state, local governments, universities and business enterprises (Secs. 10, 13). Both the grant and enforcement
procedures for intellectual property rights are to be streamlined and
strengthened. Effective remedies shall be available against all acts of
infringement (Secs. 14–16). The Japanese government is furthermore
called upon to engage in political discussions with foreign nations
that fail to properly protect the intellectual property rights of Japanese
enterprises (Sec. 17). It shall become easier to set up start-up companies and to find ways of evaluating intellectual property (presumably to obtain better financing) (Sec. 19). Knowledge of the system
of intellectual property protection shall be increased (Sec. 21). The
intellectual property policy headquarters shall formulate basic policies to achieve the above-mentioned goals, and shall be headed by
the Prime Minister.
Finally, the public policy prospective of intellectual property rights
is stressed by the most important provision of Sec. 10:
“In promoting measures for the creation, protection and exploitation
of intellectual property, attention shall be paid to public interests and
the fair use of intellectual property, and to promote free and fair
competition.”
23
The Act falls short of advocating proper remuneration for employed inventors,
which at the moment is a very contentious issue in Japan, at least since a 1999
decision held that company guidelines providing for a usually low remuneration
have no binding effect and are overruled by Sec. 35 Patent Act that requires remuneration in accordance with the success of an invention: Tokyo District Court, 16
April 1999, AIPPI Japan International Edition 1999, 255—“Olympus Pickup
Apparatus”; upheld by Tokyo High Court, 22 May 2001, unreported.
415
Of course it remains to be seen how these policies will be implemented and results will presumably take some time to materialise.
Yet if the creation of intellectual property rights is anything to go
by, Japan has been remarkably successful in setting up out of nothing an intellectual property system that by now can be considered
one of the world’s most dynamic.
6. Statistics
Number of Registered Patent Attorneys between 1899 and 1999
Year
1899
1900
1901
1902
1903
1904
1905
1906
1907
1908
1909
1910
1911
1912
1913
1914
1915
1916
1917
1918
1919
1920
1921
1922
1923
1924
1925
1926
1927
1928
1929
1930
1931
1932
1933
Number of Patent Attorneys*
138
171
184
221
250
272
296
332
372
407
460
520
573
620
687
763
830
903
987
1,048
1,124
1,204
1,350
1,477
1,657
1,790
1,935
2,076
2,181
2,321
2,459
2,666
2,888
3,092
3,318
753
872
904
1,024
1,078
1,153
1,182
1,277
1,302
1,376
1,423
1,461
Newly Registered Attorneys
138
34
13
39
31
27
26
39
46
42
59
69
57
55
75
80
75
84
93
73
86
86
158
158
204
154
161
148
146
159
161
237
249
222
260
416
table (cont.)
Year
1934
1935
1936
1937
1938
1939
1940
1941
1942
1943
1944
1945
1946
1947
1948
1949
1950
1951
1952
1953
1954
1955
1956
1957
1958
1959
1960
1961
1962
1963
1964
1965
1966
1967
1968
1969
1970
1971
1972
1973
1974
1975
1976
1977
1978
1979
1980
1981
3,557
3,836
4,113
4,389
2,604
2,672
2,693
2,683
2,594
2,081
1,828
1,690
1,289
1,238
1,178
1,029
1,026
929
936
926
931
940
965
983
1,014
1,070
1,089
1,122
1,155
1,223
1,297
1,348
1,425
1,536
1,598
1,687
1,763
1,821
1,927
2,037
2,112
2,200
2,293
2,370
2,410
2,476
2,536
2,586
1,525
1,624
1,681
1,819
258
301
312
319
261
180
115
76
44
29
15
3
61
67
51
47
43
35
42
32
38
50
49
53
51
82
83
64
62
102
107
90
105
150
89
123
101
92
137
147
113
132
143
127
110
121
118
114
417
table (cont.)
Year
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2,653
2,733
2,815
2,900
2,947
3,048
3,131
3,224
3,342
3,436
3,529
3,634
3,704
3,795
3,916
4,011
4,102
4,278
118
144
122
141
120
155
138
144
174
145
150
162
136
153
172
172
182
233
* The Patent Attorneys Act 1922 made membership in the Patent Attorneys Association
a prerequisite for practising. The numbers in italics are the number of patent attorneys
actually allowed to practice, while the larger number reflects those persons registered as
patent attorneys. From 1938 onwards, membership in the Patent Attorneys Association
became compulsory with the consequence that those who did not qualify for membership became disbarred.
Source: Benrishi seido 100 nen shi bessatsu 256–259
Applications and Grants
1884–2000
Year
1884
1885
1886
1887
1888
1889
1890
1891
1892
1893
1894
1895
1896
1897
Patents
Utility Models
Designs
Trade Marks
applications grants applications grants applications grants applications grants
425
1,384
906
778
1,064
1,180
1,288
1,344
1,337
1,250
1,122
1,213
99
205
109
183
209
240
367
379
318
326
228
169
176
497
290
262
250
236
318
300
22
82
117
48
59
64
94
96
1,542
60
188
(–)
320
12
60
1
883
1,296
607
716
568
1,029
819
798
1,046
1,143
1,350
1,373
1,578
317
3,228
1,639
–
949
508
361
436
664
583
554
588
648
877
923
858
(–)
2,335
(–)
418
table (cont.)
Year
1898
1899
1900
1901
1902
1903
1904
1905
1906
1907
1908
1909
1910
1911
1912
1913
1914
1915
1916
1917
1918
1919
1920
1921
1922
1923
Patents
Utility Models
Designs
Trade Marks
1,789
168
1,515
223
2,006
239
2,397
255
3,095
314
3,253
330
2,618
344
2,897
557
4,509
721
4,754
779
5,393
667
6,210
755
5,964
889
6,205
800
7,168
839
7,359
930
6,490
707
6,359
471
6,383
651
6,483
918
7,383
1,109
9,883
1,467
11,017
2,564
12,026
1,769
9,886
(–)
7,969
1,297
293
17
297
99
586
130
606
132
871
203
1,204
304
1,253
372
1,254
539
1,644
487
2,042
648
2,055
658
1,868
535
1,769
529
2,272
753
1,774
600
2,021
598
1,824
540
1,782
314
1,797
346
1,448
359
1,653
477
2,015
615
2,161
709
3,593
1,463
3,004
1,240
2,131
656
2,011
1
7,952
3
8,862
5
11,578
8
14,057
15
12,545
7
13,089
13
14,809
25
19,890
22
17,147
13
15,738
19
14,195
20
13,618
23
14,045
11
18,543
16
19,717
45
27,038
51
22,315
(–)
17,867
29
985
1
3,345
2
3,440
5
3,944
2
4,358
7
3,302
2
3,866
8
3,081
9
3,986
11
3,919
9
4,200
5
3,749
4
2,725
2
2,737
6
3,584
8
3,942
2
7,256
22
5,098
12
4,476
18
265
1
342
1
397
1
514
(–)
730
1
1,181
8
1,378
1
1,562
(–)
1,532
3
1,438
26
1,623
9
1,718
3
2,240
8
2,254
32
2,420
10
3,103
50
3,868
30
3,662
13
3,109
13
2,763
31
2,673
11
3,011
15
2,776
21
2,785
14
2,837
(–)
2,524
11
52
(–)
139
10
130
44
141
(–)
252
(–)
362
3
562
1
765
1
666
(–)
677
1
628
(–)
563
1
609
1
886
31
845
40
1,207
3
2,037
16
1,663
1
1,479
5
867
1
1,169
2
1,421
3
1,307
6
1,437
5
1,416
6
795
6
2,232
490
2,837
346
2,766
282
2,608
177
3,529
130
3,743
316
3,105
322
3,810
291
5,765
608
5,954
773
5,790
704
7,509
733
8,286
663
9,820
739
11,909
865
11,679
878
11,323
882
13,214
583
14,074
689
16,482
1,200
19,561
842
26,092
1,426
24,865
1,794
36,809
1,456
21,822
(–)
14,904
914
1,597
(–)
1,942
261
1,767
192
1,620
153
2,016
75
2,234
165
1,923
304
2,492
299
3,380
460
3,323
600
3,413
701
3,583
563
5,086
413
6,190
755
6,537
734
6,251
598
7,236
590
6,912
465
6,779
382
6,904
527
8,991
674
11,564
747
13,143
1,389
15,746
1,268
9,182
622
5,800
391
419
table (cont.)
Year
1924
1925
1926
1927
1928
1929
1930
1931
1932
1933
1934
1935
1936
1937
1938
1939
1940
1941
1942
1943
1944
1945
1946
1947
1948
1949
Patents
Utility Models
Designs
applications grants applications grants applications grants
9,894
1,746
12,680
1,838
12,495
1,878
12,607
2,323
13,059
2,702
14,296
2,968
15,430
2,862
15,183
2,312
13,878
1,702
13,904
1,794
14,722
1,900
16,645
1,887
18,511
2,379
17,381
2,609
18,211
2,419
18,349
2,392
19,827
1,902
19,997
1,499
16,359
599
17,108
(–)
12,578
(–)
4,258
(–)
8,136
1
9,260
10
11,582
102
14,266
888
1,928
546
5,086
1,498
3,520
1,022
4,371
1,211
4,704
1,433
5,090
1,630
4,976
1,610
4,318
1,320
4,846
1,309
5,502
1,196
4,673
930
4,766
950
4,836
842
4,615
890
4,843
941
5,913
1,172
6,716
1,453
6,686
1,183
7,977
650
6,382
(–)
8,336
(–)
2,340
(–)
2,404
70
1,056
17
1,885
(–)
3,940
36
22,563
49
27,699
86
27,467
72
27,675
100
29,579
315
33,111
341
38,487
382
38,296
408
33,981
422
32,843
341
34,939
382
40,988
408
44,632
422
38,583
473
35,424
376
30,105
417
31,833
410
33,417
391
25,993
117
24,259
(–)
13,587
(–)
4,427
(–)
12,554
9
14,042
(–)
18,195
9
22,426
24
3,393
5
11,701
37
7,619
45
9,386
50
12,281
108
12,060
130
12,236
119
12,080
163
11,988
206
15,940
260
14,250
272
14,240
226
15,670
274
13,950
264
14,530
263
16,535
310
15,703
357
17,407
309
14,696
115
12,506
(–)
13,558
(–)
1,076
(–)
2,968
34
1,578
1
2,332
(–)
6,365
30
3,780
21
5,232
32
7,354
77
9,181
19
8,221
14
9,643
27
12,038
32
9,987
36
9,195
23
9,427
39
9,611
45
12,364
70
14,626
58
10,152
50
7,259
58
5,221
70
4,315
17
3,956
(–)
2,179
(–)
1,231
(–)
▲
(▲)
▲
(▲)
339
(–)
1,907
1
2,553
(–)
4,787
22
1,872
10
3,049
7
3,774
27
4,691
21
4,366
9
5,308
13
6,014
19
4,819
18
4,567
20
4,057
13
4,052
26
5,474
40
5,662
33
4,464
17
4,301
24
3,420
38
2,567
28
2,399
12
1,759
(–)
876
(–)
223
(–)
2
(–)
–
(–)
730
(–)
1,114
(–)
1,915
11
Trade Marks
applications grants
19,765
1,481
20,941
1,354
21,726
1,237
19,696
1,428
19,716
1,426
23,022
1,462
22,435
1,332
22,420
1,132
21,529
881
24,042
1,056
26,286
802
29,661
749
30,113
748
27,459
913
28,243
671
26,461
740
23,490
626
18,161
390
9,445
(–)
6,046
(–)
8,319
(–)
2,401
(–)
13,835
45
15,677
31
20,501
133
25,044
1,000
5,164
516
12,699
1,410
27,505
1,338
27,687
948
31,143
1,076
32,589
941
34,233
1,091
33,098
928
31,977
703
12,630
763
13,328
753
14,020
564
15,140
525
14,972
627
16,810
684
19,298
702
16,687
646
14,124
512
8,819
121
5,687
(–)
3,419
(–)
643
(–)
5,067
33
4,212
14
4,551
(–)
8,066
22
420
table (cont.)
Year
Patents
Utility Models
Designs
Trade Marks
1950
16,896
2,360
17,764
3,073
20,877
2,642
24,575
4,033
29,369
5,803
34,508
7,186
33,245
5,879
33,188
6,817
38,518
7,896
41,537
9,613
43,484
11,587
48,417
13,659
60,127
16,101
71,790
17,914
74,980
19,424
81,923
21,127
86,046
23,084
85,364
23,643
96,710
25,596
105,586
28,454
130,831
30,309
105,785
27,360
130,400
29,072
144,814
29,593
149,319
27,810
159,821
24,703
1951
1952
1953
1954
1955
1956
1957
1958
1959
1960
1961
1962
1963
1964
1965
1966
1967
1968
1969
1970
1971
1972
1973
1974
1975
4,272
137
6,269
952
5,486
1,136
5,806
1,179
7,070
1,551
8,557
2,147
9,430
3,149
9,813
3,527
9,972
3,358
10,278
3,346
11,252
3,576
20,946
7,376
15,703
5,070
23,303
8,366
23,700
8,597
26,905
9,108
26,315
8,942
20,773
6,896
27,972
9,396
27,657
8,862
30,879
9,488
36,447
11,652
41,454
12,353
42,328
11,391
39,626
8,753
46,728
9,736
24,324
46
23,863
75
34,998
152
39,961
219
47,665
389
60,933
831
63,925
783
58,756
1,120
70,719
1,145
68,102
997
63,077
1,069
65,685
1,383
81,858
1,264
99,627
1,424
102,995
1,712
108,553
2,118
119,061
3,071
111,060
1,906
114,785
2,033
124,170
2,463
142,066
2,369
122,843
1,942
148,610
1,975
147,914
1,978
157,591
1,910
180,660
1,668
8,021
(–)
11,613
82
10,411
80
10,200
60
13,108
87
15,918
149
17,807
422
14,244
468
16,479
519
18,208
659
22,102
708
34,234
864
29,016
652
26,555
544
28,844
673
35,040
725
29,621
893
21,322
721
22,337
722
29,264
817
27,718
741
31,329
875
38,416
837
35,707
691
40,710
709
48,406
957
6,507
53
6,329
70
8,431
90
10,123
84
12,412
152
14,195
131
17,230
246
18,747
130
27,124
176
26,368
329
24,536
440
23,462
347
28,283
309
33,871
337
36,210
476
37,262
647
39,942
585
37,970
608
39,380
760
42,223
951
46,860
967
48,446
898
54,984
1,026
47,798
1,005
45,387
902
52,250
843
3,676
12
4,152
33
4,256
59
5,302
41
6,610
57
7,157
84
8,137
151
11,399
93
13,890
120
14,109
87
15,883
223
11,931
175
17,346
183
14,427
197
14,441
118
13,654
135
13,941
236
15,387
205
16,855
231
20,927
288
21,785
297
22,878
370
22,041
393
22,035
380
22,747
376
34,829
700
29,841 16,465
1,240
473
26,715 14,328
1,470
584
32,558 15,156
1,432
1,056
34,573 20,754
1,874
1,517
31,986 23,460
2,031
1,730
36,357 20,453
2,599
1,766
39,027 22,292
1,976
2,175
36,573 21,589
2,086
1,803
37,858 23,768
2,016
1,825
38,230 18,156
2,008
1,245
39,089 20,516
2,712
1,282
37,458 20,119
3,138
1,415
43,985 23,763
3,642
2,005
56,776 31,874
3,941
2,959
59,950 31,397
4,098
2,648
62,123 31,217
5,027
2,814
75,685 35,393
4,544
3,136
82,348 39,122
4,845
3,002
94,243 38,363
6,423
2,607
115,811 42,362
6,848
2,743
139,414 49,098
8,991
3,092
142,518 64,621
9,632
3,951
183,495 63,151
12,751
3,355
200,133 71,888
16,021
3,789
167,265 90,502
13,586
3,856
155,469 109,166
11,892
5,010
421
table (cont.)
Year
Patents
Utility Models
Designs
Trade Marks
1976
161,016
25,254
161,006
25,015
166,092
24,575
174,569
23,946
191,020
25,290
218,261
26,616
237,513
26,616
254,956
27,213
284,767
302,995
320,089
341,095
339,399
351,207
367,590
369,396
33,463
371,894
33,875
366,486
34,141
353,301
33,363
369,215
34,603
376,615
36,514
391,572
40,765
401,932
42,551
405,655
45,475
436,865
49,501
1977
1978
1979
1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
40,317
7,852
52,608
9,561
45,504
7,856
44,104
9,241
46,106
8,074
50,904
8,824
50,601
8,378
54,701
9,123
61,800
50,100
59,900
62,400
55,300
63,301
59,401
36,100
5,647
92,100
13,101
88,400
11,089
82,400
9,643
109,100
14,296
215,100
25,419
147,686
17,749
141,448
15,744
150,059
16,099
125,880
13,611
178,842
1,456
179,702
1,495
183,731
1,453
185,455
1,133
197,785
1,397
198,979
1,316
202,706
1,348
205,243
1,259
202,181
204,815
204,210
201,614
171,674
153,302
138,294
114,687
1,347
94,601
1,284
77,101
1,182
17,531
1,032
14,886
1,201
14,082
1,254
12,048
1,331
10,917
1,248
10,283
1,330
9,587
1,690
41,502
776
54,804
812
57,702
744
44,600
766
50,001
533
50,900
510
55,304
553
55,000
534
57,800
41,100
42,700
47,800
42,300
47,100
43,300
36,500
357
65,200
556
53,400
371
53,885
799
63,966
1,472
95,481
964
50,108
467
35,513
262
13,933
134
5,372
122
51,904
934
53,143
957
56,160
963
56,263
986
55,631
1,057
59,301
1,020
59,390
1,071
57,618
1,303
54,683
55,237
52,636
54,017
51,936
48,596
44,290
40,134
1,648
39,170
1,492
40,759
1,571
40,534
1,815
40,067
1,810
40,192
1,736
39,865
2,099
39,352
2,012
37,368
2,133
38,496
2,426
30,074
569
39,162
748
34,521
803
37,215
736
31,289
593
30,791
524
33,499
523
32,237
729
31,191
35,890
34,103
36,614
35,441
32,250
33,773
28,854
979
38,004
1,385
38,708
1,267
34,948
1,349
34,887
1,325
35,495
1,494
37,418
1,574
36,264
1,382
41,355
2,038
40,037
2,098
Numbers in italics indicate applications by or grants to foreigners.
(–) = none
▲ = Filings not allowed due to the war.
124,362
11,162
130,218
11,533
121,901
10,572
118,235
11,193
127,151
11,866
134,251
12,192
139,198
13,184
150,318
14,273
161,882
161,546
168,890
175,861
172,813
172,780
171,726
167,906
18,743
311,011
22,654
174,585
19,811
172,859
20,151
179,689
22,899
188,160
24,642
133,116
18,727
112,469
15,624
121,861
17,609
145,668
21,307
95,945
5,124
113,162
7,255
88,852
5,294
52,291
3,945
65,739
5,280
68,314
4,374
86,125
6,352
113,245
9,125
116,636
119,534
118,475
117,075
119,287
119,301
116,714
95,329
8,098
156,040
14,568
166,697
13,456
147,191
11,289
144,911
8,028
178,251
12,707
253,272
31,442
132,066
17,171
123,656
17,620
94,369
14,907
422
Literature:
(unless contained in the general list of literature or under I. above)
Benrishikai (Patent Attorney’s Association), Benrishi seidò 80 nen shi
(80 Years of the System of Patent Attorneys), Tokyo 1982; Hatsumei
kyokai (Inventors Association), Hatsumeikyokai 70 nen shi (70 Years
History of the Inventors Association), Tokyo 1974; Kògyò shoyùken kenshùchò (Industrial Property Research Office), Takahashi Korekiyo ikò
[1–3] (On the Works of the Late Korekiyo Takahashi), 27 Tokkyo
Kenkyù 43 [1999]; 28 Tokkyo Kenkyù 59 [1999], 29 Tokkyo Kenkyù
46 [2000; Kògyò shoyùken kenshùchò (Industrial Property Research Office),
Sangyoken hòan Taishò 7 nen ni kann suru shiryò (On the Proposal
for an Industrial Property Law 1918), 3 Tokkyo Kenkyù 48 [1987];
4 Tokkyo Kenkyù 44 [1987]; T. Mikuriya, Takahashi Korekiyo
ikòshù to sono shuhen (About the Unpublished Works of the Late
Korekiyo Takahashi) 5 Tokkyo Kenkyù 24 [1988]; H. Odagiri/A.
Goto, The Japanese System of Innovation, in: R. Nelson (ed.),
National Innovation Systems—A Comparative Analysis, Oxford 1993,
76–214; Nihon Tokkyo Kyokai ( Japan Patent Association), 50 nen shi
(Fifty Years of History), Tokyo 1989; G. Rahn, The Role of Industrial
Property in Economic Development: The Japanese Experience, 14
International Review of Industrial Property and Copyright Law (IIC)
449 [1983].
patent law
423
5.2 Patent Law
Christopher Heath
1. The Summary Rules of Monopoly 1871
It is quite remarkable that the first import of legislation into Japan
after the Meiji Restoration 1868 concerned patent law. The Summary
rules of Monopoly1 contained 19 provisions and started with the
phrase:
“Whoever has made a new invention will be granted a monopoly
regardless of the manner of the invented objects. Anyone in the province
who makes a request for the grant of a monopoly will be treated
according to the following provisions. Thereupon, the provincial authorities shall request instructions from the Ministry of Civil Affairs.”
The rules were supplemented by Edict No. 105 of March 1872.
No patents were ever granted under the above rules, presumably
due to the fact that the procedure of grant was unclear and the concept of monopolistic rights for new inventions too uncommon to
receive wide retention. The summary rules and the Edict No. 5 were
formally repealed as of 18 April 1885 when the first Japanese Patent
Act came into force.
2. The Japanese Patent Act 1885
The second attempt to introduce patent legislation in Japan came
with the 1885 Patent Act that became the first patent legislation to
be actually operative in Japan. The Act had the following characteristic features.
(1) The Ministry of Agriculture and Trade became responsible for
issuing patents.
(2) Grant of a patent monopoly (still called “privilege”) was discretionary under Sec. 1 (grant of “special permissions for exclusive
sale where appropriate”).
1
Senbai ryaku kisoku, Ordinance No. 175 of 7 April 1871.
424
(3) The applicant had to furnish an exact description and drawings of the invention, Sec. 2. The application could be made at each
prefecture and was then forwarded to the Ministry. The patent also
had to contain the name of the invention, the duration (see below),
the purpose of the invention, a description, possible ways of use and
the name of the inventor, Secs. 3–5 Executive Provisions.
(4) Patents could be requested for a duration of five, ten, or 15
years.
(5) Patents could not be obtained for objects already invented by
others or already in use or known prior to the application.
(6) Patents could be transferred with the permission of the Ministry.
(7) For improvements made by the patentee, an improvement
patent could be requested, whose duration could not exceed the basic
patent.
(8) Improvements upon inventions patented by others could be
patented upon consent of the patentee of the prior invention, or, in
the absence thereof, by ministerial permission.
(9) Patents could not be granted on pharmaceuticals.
(10) Enforcement of the patent required notice of patenting on
the goods.
(11) Patents would be annulled after two years of non-use, or upon
importation of the invention from abroad.
(12) Patent infringements were criminal offences (imprisonment
between one month and one year), as were acts of misappropriating inventions and falsely attaching notes to products that they were
patented.
(13) Most interestingly, Sec. 28 contained a rule on preliminary
injunctions: When raising an action of infringement, the judge could
temporarily suspend the sale of goods that were allegedly infringing.
This provision is the more surprising since the subsequent Patent
Act did not contain any provisions on civil procedures of enforcement.
The 1885 Act was quite obviously modelled according to the French
Patent Act of 1835, certainly with modifications. Yet there are three
French specifics in this Act: first, the exclusion of pharmaceuticals;
second, the recognition of improvement patents; and, third, the
nullification of the patent where the patentee imported the patented
product from abroad.2
2
Acknowledged by Kiyose (1922), 51.
patent law
425
As mentioned above, the patent was not yet regarded as a right,
but as a discretionary privilege to be granted by the Ministry.
Additional shortcomings are the lack of any provisions concerning
examination, and the lack of clarity as to the date from which the
patent period is counted: application or grant. There is not even a
provision that would indicate the periods of five, ten or 15 years.
Rather, these periods can only be found in the rules on patent fees.
A draft Patent Act 1883 published in the Patents Journal No.
1969, 25323 envisaged a duration of 15, ten or seven years, dependent on the importance of the invention. Instead of a lump sum,
annual patent fees were envisaged.
3. The Patent Act 18884
Although enacted only three years later, the 1888 Patent Act is
remarkably different from its predecessor. The reason was Korekiyo
Takahashi’s visit to the United States and his admiration for the
technological success and patent system of the United States. The
1888 Act turned the French-based into a U.S.-based Patent Act,
introducing the principle of substantive examination (practiced in the
U.S. since 1842), the claim for invalidation, and the principle of
first-to-invent.
As mentioned above, major changes occurred after Korekiyo
Takahashi’s visit to the United States. While some of the features
of the 1885 Patent Act were maintained, others were completely
changed. In detail:
(1) The applicant of an invention now had a true right to obtain
a patent, and the issue was no longer discretionary.
(2) Pharmaceuticals still were unpatentable, and so were objects
already in prior use unless for trials by the inventor up to two years
preceding the application. This introduced the two-year grace period
practiced in the United States.
(3) An examination system was introduced, and a Patent Office
set up under the jurisdiction of the Ministry of Agriculture and Trade.
3
4
Reprinted in German in Gareis/Werner (1884), 124.
Reprinted in German in Gareis/Werner (1895), 119.
426
(4) Patents would be granted for five, ten or 15 years.
(5) The system of dependant patents was maintained, while there
was no provision on the additional patent.
(6) Patents could be revoked ex officio, inter alia, because the patent
description contained an issue described as vital, yet in effect of no
importance. The rules for revocation (non-use for three years or
importation from abroad) were maintained.
(7) Against the rejection of a patent application, the applicant
could request a re-examination. No further appeals against the Patent
Office’s decisions were allowed.
(8) The law established the first-to-invent principle and in Sec. 13
set up an interference procedure in order for both applicants to furnish “further details about the development of the invention”.
(9) Secs. 34, 34 contained rules on enforcement: Infringement of
another’s patent required the payment of damages for a maximum
period of three years. Patent infringement was also considered a
criminal offence.
The law came into force on 1 February 1889. It did not grant any
rights to foreigners, and the first bilateral agreement under which
foreigner were entitled to file for patent protection was concluded
with Germany in 1896 under the Treaty of Shipping and Trade.5
Subsequent treaties were concluded with Denmark,6 Great Britain7
and the U.S.8
In fact, on 1 February 1889, the English Chargé d’Affairs in Japan
had forwarded a patent application of a certain James Maclear to
the Minister of Foreign Affairs, Òkuma Shigenobu, asking for the
patent to be granted. In a diplomatically worded letter of 5 February
1889, Òkuma answered that “the Patent Ordinance does normally
not protect inventions of foreigners”.
5
Handels- und Schifffahrtsvertrag zwischen dem Deutschen Reich und Japan of
4 April 1896, in force since 18 November 1896.
6
Royal Danish Decree of 19 November 1897, in force since 1 January 1898.
7
Protocol between Great Britain and Japan of 20 October 1897. The Protocol
referred to the “Unequal Treaties” and made protection of foreigners dependent
upon renouncing the sovereign jurisdiction of British Courts over British subjects
in Japan, and the fact that also all other nations renounced such extraterritorial
jurisdiction. It is unclear when exactly this was the case.
8
Treaty between the U.S. and Japan of 13 January 1897, in force since 9 March
1897.
patent law
427
4. The Patent Act 1899
By the turn of the century, the industrial property system had reached
a certain maturity. Patent applications numbering 425 in 1885 had
risen to slightly more than 2,000 in the year 1900. Accession to the
Paris Convention required significant amendments to all industrial
property laws in that also foreigners were henceforth allowed to apply
for industrial property rights to the extent that they belonged to a
convention country. In the Patent Act, it was necessary to introduce
provisions on priority. Enactment of the Examination Rules for Patent
Attorneys and Their Registration also allowed for more detailed rules
on representation of foreigners without a residence in Japan.9 The
Patent Act No. 36 of 1 March 1899 replaced the previous Patent
Acts of 1885/1888. Its main features were:
(1) The first-to-invent system was maintained.
(2) The exclusive rights of the patentee were more clearly defined
in Sec. 1 as manufacture, sale, use or put into commerce.
(3) Pharmaceuticals remained unpatentable.
(4) The novelty requirement concerned prior public knowledge
or use without limitation to Japan. A two-year grace period was provided for inventions that were made public for reasons of trial.
(5) Patents were granted for 15 years from the registration date.
(6) Patents could be freely transferred, yet such transfer would
only be valid vis-à-vis third parties upon registration.
(7) Persons without residence in Japan needed to act through a
representative.
(8) The priority period in the case of prior foreign applications
was set at seven months.
(9) The systems of additional patent and dependent patent were
maintained.
(10) The system of internal and administrative appeals was clarified.
In the case of two conflicting applications, the law envisaged a kind
of interference procedure (consistent with the first-to-invent system).
Against a rejection of the application, a retrial could be ordered. Against
such decision and against decisions in the interference procedure,
9
Imperial Order on the Registration of Patent Attorneys No. 235 of 8 June 1899
and Examination Rules for Patent Attorneys of 4 November 1899, reprinted in
German in Osterrieth, Vol. IV (1899), 160 et seq.
428
the aggrieved party could file an appeal to the Patent Tribunal, a
board of appeal within the Patent Act. A final appeal on matters of
law was with the Imperial Supreme Court.
(11) Nullity could be requested by anyone before the Patent
Tribunal. The Patent Tribunal could also render decisions on the
scope of a patent and order infringers to pay damages.
(12) The above administrative enforcement left civil enforcement
before the ordinary courts unaffected. The courts were not bound
by the Patent Tribunal’s decision on the scope of the patent.
(13) The grants of revocation were limited to non-working for a
period of three years.
(14) Instead of a lump sum, the patent owner had to pay annuities in the amount of 10 Yen for each patent, a sum increased by
5 Yen every three years.
(15) Patent infringement remained a criminal offence, yet depended
on intent. On the other hand, requirement of labelling products as
patented was abolished.
Prior to 1900, no significant decisions in patent matters have become
known. Decisions of relevancy by the Patent Tribunal or the Imperial
Supreme Court were mostly after 1910. Significant decisions by the
Imperial Supreme Court were rendered in 1904 and 1917, however:
The court established that the estoppel of nullity could not be heard
in infringement procedures brought before the ordinary courts.10 This
decision was overturned only in 2000.11
Not least the enactment of the Utility Model 1905 made a general
overhaul of the industrial property laws desirable. The specific features of the Patent Act 1909 (as of 2 April 1909) were as follows:
(1) Patents were granted for commercial inventions or improvements thereof.
(2) New provisions on inventions made in the course of employment. The employer was to receive the right over an employment
10
Imperial Supreme Court, 15 September 1904 (10 Keiroku 1679), and 23 April
1917 (23 Minroku 654).
11
Supreme Court, 11 April 2000, 1710 Hanrei Jihò 68—“Kilby’s Patent III”.
patent law
429
invention made in the course of employment or in order to fulfil a
contract. The a priori transfer of other inventions made outside the
course of employment was deemed invalid.
(3) Limitation of novelty to domestic prior use, knowledge or
printed papers circulated within Japan.
(4) Grace period of two years for trials conducted by the inventor.
(5) The first-to-invent principle was continued, yet the first inventor could raise a claim of transfer only within two years from the
date of grant.
(6) Sec. 17 contained a unique provision regarding several inventors or applicants. The provision contained the assumption that these
represented each other in acts before the Patent Office. Neither previous nor subsequent Patent Acts contained this most useful provision that would have saved a number of troubles.12
(7) The period of protection was 15 years from the date of grant
and could be extended for between three and ten years.
(8) Patents could be made subject to forfeiture upon non-use for
a period of at least three years.
(9) Rules on the enforcement of patent rights were notably absent,
although patent infringement was regarded as a criminal offence.
A number of important decisions were rendered under this 1909
Patent Act. Regarding the definition of an invention, it was held
that this required a “new commercial result”,13 while a discovery of
an existing subject matter could not be considered as an invention.14
An invention had to be complete to be patentable.15 A combination
of known processes was not deemed inventive unless it resulted in
a specific commercial result.16 Processes that resulted in the use of
less material17 or labour18 were deemed inventive. The courts also
required an inventive step for an invention to be patentable. Ideas
12
The matter went before the courts a number of times. Supreme Court, 7
March 1995, 1527 Hanrei Jihò 146—“Magnetic Treatment Device” held that inventors had to act jointly before the Patent Office and the courts. A revision of the
Patent Act planned for 2003 aims to change this, at least in cases where all coinventors initially have filed the patent jointly.
13
Imperial Supreme Court, Minshù 1910, 342.
14
Patent Appeal Decisions 1921, 1633.
15
16
17
18
430
that could be easily thought of were not deemed patentable.19 As to
novelty, it was held that this issue was up to a judicial interpretation.20 In regard of foreign publications, these were considered novelty destroying only to the extent that they had arrived in Japan
prior to the application date.21 Within Japan, knowledge of a third
party without a secrecy obligation would destroy novelty.22 This also
applied when the secrecy obligation ended,23 or when use was made
in a public place where everyone had access.24
There are notably fewer decisions on questions that would relate
to the private enforcement of patents, but again a number that
related the interpretation of patent claims by the Patent Tribunal
(claim for ascertaining the scope of a right). Interpretation should be
made in accordance with a claim and in taking into account the
whole description.25 The wording of the claim as such was not deemed
so important, but rather how those skilled in the art would have
perceived the invention.26 Imprecision or errors in the wording of
the claim would not impede patentability.27 The wording of the claim
could be interpreted broadly if it could be assumed that the inventor would have been aware of this issue.28 The file wrapper could
be considered in determining the scope of the claim.29
In a request for determining the scope of a patent, the patent
may neither be considered invalid nor reduced in scope.30 As mentioned above, this is the more true for civil courts that may not consider the patent invalid.31 The ordinary courts may, however, determine
the scope of a patent,32 and are not bound by the Patent Tribunal
in this respect.33 Iizuka also explains this with the fact that decisions
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
As above, Imperial Supreme Court, Minshù 1922, 178.
Imperial Supreme Court, 5 November 1912, mentioned in Kiyose (1922), 451.
H. Iizuka (1926), 49–50.
patent law
431
in civil procedure only bind the parties, while decisions by the Patent
Office have a broader scope in that the same request can no longer
be brought even by a different party (Sec. 117 Patent Act 1921).
Another significant change occurred after the First World War that
brought an enormous economic boom to Japan. When the Patent
Act 1909 was enacted, patent application numbered little more than
5,000. This number had doubled ten years later, again suggesting
amendments in line with economic development and necessities.
Significantly, not only the Patent Act but the whole system of industrial property was revised in 1921. The new Patent Act (Act. No.
96 of 29 April 1921, in force since 11 January 1922) had the following characteristic features:
(1) The Act clearly spelt out the first-to-file principle in Sec. 8.
However, in order to accommodate the rights of the true inventor
in cases of misappropriation, the Act allowed for a right of re-filing,
Secs. 10, 11.34
(2) The provisions on employees’ inventions were further refined.
Employees’ inventions belonged to the employee, yet a transfer in
anticipation was allowed where the invention was made within the
scope of duty and under a specific obligation. In the absence of a
contractual provision to this extent, the employer obtained a nonexclusive licence.35
(3) Novelty was clearly limited to domestic use, publication or print
media circulated in Japan.
(4) Pharmaceuticals, chemical substances and articles of food were
exempt from patentability.
(5) The grace period of previously two years was severely limited
to six months.
34
Remarkably enough, these provisions were deleted when the new Patent Act
1959 was enacted. The new law gave the true inventor the only right to have the
patent invalidated, but did not grant any rights of refiling or of transfer. Such a
right of transfer after some hesitation by the courts was only allowed by Supreme
Court, 12 June 2001, 15 Law & Technology 76 [2002].
35
The original draft required remuneration, yet this was vetoed by the upper
house: Mentioned by H. Iizuka (1926), 33.
432
(6) The protection period was 15 years from the publication date,
and could be extended for up to 10 years “in case a patentee of an
important invention has, for good reason, been unable to derive reasonable profit from the invention within the period of duration of
his patent right” (Sec. 1 Imperial Ordinance No. 460/1921).
(7) There was no clear distinction between the patent right and
the registered patent. Sec. 34 specified that the patent right came
into existence by registration.
(8) The law continued to recognise additional patents and dependent patents.
(9) Provisions were introduced to require the patented goods to
be marked as patented, Sec. 64.
(10) Major changes were made in the application procedure. The
examined patent was published, and oppositions could be raised
within two months. The opposition would then be dealt with by the
examiner of the application. If the opposition was rejected, the opponent could only raise a nullity action.
(11) Nullity actions and trials on the confirmation of scope could
be raised before the Patent Tribunal. The nullity action was limited
to five years from the day of publication of the application. Oral
procedures were introduced before the Patent Tribunal at least regarding nullity. A new tier of appeals was introduced, as appeals against
the Patent Tribunal’s decision would now go before an enlarged
board of the Tribunal prior to the final appeal to the Imperial
Supreme Court.
(12) Infringement suits before the ordinary courts could be suspended until a decision on nullity was rendered, Sec. 118. Patent
infringements continued to be regarded as criminal offences under
Secs. 129 et seq.
While the change to the first-to-file principle was certainly a major
one, previous practice had almost always granted the right to the
first applicant, as determination of the first inventor proved extremely
difficult and cumbersome.36
The 1921 Act had a number of other peculiarities that should be
briefly mentioned. For one, the scope of the patent was not limited
to acts of commercial exploitation, but also extended to private acts.
36
H. Iizuka (1926), 21.
patent law
433
It is doubtful that private use of a patented technology was ever persecuted, yet one wonders about this matter in the first place.
Of some interest are also the application procedures. According
to Sec. 38 Patent Enforcement Provisions (Ordinance No. 33/1921),
a patent specification had to contain the following:
–
–
–
–
–
title of invention;
nature of the invention and the sense of its object;
brief explanation of drawings;
detailed explanation of the invention; and
extent of the claim for a patent.
Since multiple claims were not allowed, a patent could only contain
one main claim, and several dependent claims. The latter were examined in their respective order, which could make the examination
procedure extremely time-consuming and cumbersome.37 The courts
interpreted the scope of patents not primarily according to the
claim language, but rather according to nature and purpose of the
invention.38
Prior to 1945, the Patent Act was amended only three times, and
only in respect of minor matters.39 Of major importance were the
changes thereafter.40 Of particular importance were the changes made
in 1948. Since the new Japanese constitution required all administrative decisions to be appealable to a court of law, the previous
structure of administrative appeals was changed. Prior to the amend-
37
Difficulties of the old patent prosecution system came to the fore quite recently
in connection with the unique Kilby case. Here, Texas Instruments had filed the
basic patent for semiconductors in 1959 in the U.S. and in February 1960 in Japan.
The patent application in the U.S. had more than 30 claims. “To obtain a comparable scope of protection, TI needed to select one claim for the original Japanese
application and file divisional applications for remaining claims. TI’s patent prosecution was extensively delayed because the Japanese Patent Office refused to examine the parent and divisional applications in parallel because the JPO needed to
avoid double patenting issues by determining the scope of the claim in a pending
application by making reference to issued claims. Of the several divisional applications filed by TI, only four have been granted patents. After more than 30 years
of delay, the disputed patent was issued” (T. Takenaka, CASRIP Newsletter Fall
1997, 7).
38
Imperial Supreme Court, 29 January 1938, mentioned in T. Takenaka (1995).
39
By Law No. 47 of 4 April 1929, Law. No. 3 of 8 March 1938, and Law No.
5 of 8 March 1938.
40
By Law No. 105 of 8 September 1947, Law No. 223 of 22 December 1947,
Law No. 172 of 15 July 1948, Law. No. 103 of 24 May 1949, Law No. 9 of 6
March 1951 and Law No. 101 of 28 April 1952.
434
ment, the Patent Office provided for a two-tier structure of decision
and internal appeal, both for procedures of grant and for those of
invalidation. Appeal decisions by the Patent Office could be further
appealed to the Imperial Supreme Court, yet only on matters of
law. Since 1948, the Tokyo High Court has been given exclusive
jurisdiction to review all Patent Office appeal decisions both on facts
and law. A further appeal then lies with the Supreme Court. The
Tokyo High Court, under a strangely hybrid system between judges
and technical experts, employs members of the Patent Office on secondment for giving their opinions on patent cases in order to assist
the deciding judges. The system has received criticism as the parties are not given an opportunity to question this technical assistant.
In view of such criticism, the system is currently under review and
might be changed in the foreseeable future. While decisions of the
Patent appeal divisions prior to 1948 carried significant weight, this
subsequently diminished in view of the Tokyo High Court’s factfinding powers. Nowadays, patent appeal divisions are composed of
relatively young examiners, which was not the case previously.
Furthermore, in the post-war period a number of specific laws
were enacted regarded “industrial property rights owned by allied
nationals”, regarding the expropriation of industrial property rights
owned by German nationals, and regarding the reinstatement of
rights where relevant acts such as filings or payments could not be
carried out due to the war.41
The hitherto last major revision of the Patent Act was undertaken
in 1959 (Law No. 121 of 13 April 1959, in force since 1 April 1960).
The law has been amended several times, see below.
41
All these orders and enforcement regulations are reprinted in Japanese Patent
Office, Japanese Laws Relating to Industrial Property, Tokyo 1957. The most important laws were the Order for Post-war Dispositions of Industrial Property Rights
Owned by Allied Nationals of 16 August 1949 with its supplementary rules and
dispositions. An additional notification of 14 September 1949 lists the allied countries and the dates between which the reinstatement would be granted (generally
between 8 December 1941 and 30 September 1951, the last date to file a petition
for restoration. Rights of citizens of neutral countries (Switzerland, Denmark and
Sweden) were regulated in special agreements, as were the rights of German citizens (including Austrians). The latter agreements were signed in 1953/1954.
patent law
435
The main features of the 1959 Patent Act are as follows:
(1) Clear stipulation of the requirements novelty, inventive step,
and industrial application. Also foreign publications could now destroy
novelty. The requirement of industrial application was further clarified;
(2) Exclusion of medicinal products or chemical substances from
patentability;
(3) Limitation of the duration to 15 years from publication or 20
years from filing, whichever shorter. The previous provisions that
permitted the patentee to request an extension in cases of incomplete commercial success were abolished.
(4) Possibility of combining two inventions in one patent. Prior to
1921, it was possible to include more than one claim in one application. This was no longer possible under the 1921 Act, and was
now liberalised again;
(5) Perhaps under the influence of the German Employees’ Invention
Act 1957, a new provision (Sec. 35) strengthened the rights of
employed inventors. Even inventions made in the course of employment belonged to the inventor, yet the employer could ask for a
transfer upon payment of an equitable remuneration;42 this provision has long been dormant in view of the practice of Japanese companies of paying relatively low compensation rates, and often only
fixed amounts even in case of extraordinary commercial success.43
The courts in the past upheld such rules.44 Remuneration had to be
specified as such, however, and could not be bundled into retirement payments or the like.45 The transfer request was held valid by
the courts even in the absence of an agreed remuneration.46
(6) The Patent Office could still determine the scope of a patent
right, yet this was not held binding upon the courts;
(7) For the first time, the Patent Act contained detailed provisions
on infringement, remedies and the calculation of damages;
42
Only a 1999 court decision held that Sec. 35 overruled internal company rules
and calculated the proper amount of compensation in the range of an ordinary
licensing fee, Tokyo District Court, 16 April 1999, AIPPI Japan International Edition
1999, 255—“Olympus Pickup Apparatus”; upheld by Tokyo High Court, 22 May
2001 and Supreme Court, 28 April 2003, unreported. Here, the employee had to
swear that he would abide by the company’s internal guidelines.
43
See the study by the Nihon Tokkyo Kyòkai (1994).
44
Osaka District Court, 26 April 1984, Mutaishù 16–1, 283.
45
Osaka High Court, 27 May 1994, GRUR Int. 1995, 413.
46
Osaka District Court, 18 May 1979, GRUR Int. 1980, 59.
436
(8) No time limit was stipulated for requesting invalidation of a
patent.
The official re

HISTORY OF LAW IN JAPAN SINCE 1868

Transcription

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