Escolar Documentos
Profissional Documentos
Cultura Documentos
edited by
VOLUME TWELVE
WILHELM RÖHL
BRILL
LEIDEN • BOSTON
2005
This book is printed on acid-free paper.
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.
All rights reserved. No part of this publication may be reproduced, translated, stored in
a retrieval system, or transmitted in any form or by any means, electronic,
mechanical, photocopying, recording or otherwise, without prior written
permission from the publisher.
1
Prof. Dr. Eiji Takahashi had a part in chapter “Commercial and Corporate
Law in Japan”.
CHAPTER ONE
GENERALITIES
Wilhelm Röhl
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 econ-
omy 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 mag-
istrate in Osaka who endeavoured to help the poor and was angered
by the indifference of the city authorities; the riot, instigated by him-
self 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
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 oppres-
sion 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 pros-
perity and powerful armed forces’ ( fukoku kyòhei ) by promoting indus-
try. 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 peri-
ods 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 liberal-
democratic 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); con-
tinuance 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 com-
bination 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 con-
tinued. 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 cur-
rent 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 exer-
cise of this power and that of the monopolists and land-owners, par-
ticularly 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 con-
nections. 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 corrup-
tion 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 equip-
ment, 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, rep-
resents 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 indige-
nous legal understanding.
periods of development 5
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 lay-
men 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 medi-
ation 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, orig-
inally 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).
periods of development 7
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
12
Japan had agreed to maintain its navy on a reduced level in relation to the
United States and Great Britain.
periods of development 9
13
Potsdam Declaration of 26 July 1945.
14
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).
the scope of japanese law 11
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 autho-
rization, 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 pro-
vided for specific rules, should they be required under particular cir-
cumstances 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 addi-
tional 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 indepen-
5
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 con-
trol. On 7 May 1875 Japan and Russia concluded a treaty by which the Kurile
the scope of japanese law 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 deter-
mine those statutes as a whole or in part, was enacted. Special
Imperial ordinances would regulate the following matters: /a/ con-
cerning native inhabitants, /b/ concerning the competence of admin-
istrative 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 pop-
ulation, 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 arti-
cles 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
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.
the scope of japanese law 15
16
South of Mukden.
17
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.
16 generalities
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
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 politi-
cally powerless emperor, was revived as the highest authority of
government.6
5
For details see Henderson (note 1), p. 216 et seq.
6
The dajòkan system remained in force until the establishment of the Cabinet
(naikaku) in 1885.
types of rules and promulgation 19
(i) In order to breathe new life into old expressions the government
and the administrative authorities used words which had been intro-
duced 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 valid-
ity 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 enforce-
ment of the laws made sure that the people could get timely knowl-
edge 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 min-
istry 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
11
K. Hosokawa (note 7) at 19.
12
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.
types of rules and promulgation 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 coun-
tersignature of the Prime Minister alone or jointly with the respon-
sible 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 pro-
mulgation; 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 promul-
gated 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 par-
liament.
– 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
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 23
1
The fifth article of the Charter Oath of Five Articles, see chapter ‘Constitutional
Law’ in this volume.
24 generalities
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 govern-
ments 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 univer-
sity 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 con-
centrate on German law, and the trend within the academic sphere
to study German law also became more widespread. The govern-
ment employed several German jurists as advisers whose duties
included drafting of laws.14 Penal law and the law of criminal pro-
cedure were Boissonade’s domain. The two codes governing these
areas were enforced from 1882. However, soon afterwards amend-
ments 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 gen-
eral 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
18
Prussian law was at the fore.
19
The best description of that school has been presented by Schenck (note 14).
Presidents of the school were famous Japanese dignitaries, and the Japanese gov-
ernment made financial contributions.
20
Preparatory research by the Japanese extended over more than thirty foreign
legal systems. Z. Kitagawa (note 14), p. 43.
28 generalities
21
G. Rahn (note 3), pp. 114–129.
CHAPTER TWO
PUBLIC LAW
Wilhelm Röhl
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 ubiq-
uitous, system of fixing the dates, the years, months and days of the old lunar cal-
endar 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
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 dis-
content 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
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 public law
7
Ishii/Chambliss (note 5), pp. 54 and 709 respectively.
8
Senchù hassaku (Eight points—aboard) as the plan is called because Sakamoto
wrote his ideas down while sailing from Nagasaki to Kyoto.—Other persons, espe-
cially 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 cer-
tain 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.
constitutional law 35
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 public law
13
One of the authors who explained early constitutional texts in Meiji bunka zen-
shù (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 activ-
ities 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 con-
sumption 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
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 pre-
fectures (ken), and the reorganization of the government—establish-
ment 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 leg-
islation 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 disestab-
lished 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 peti-
tion 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 cab-
inet which was established in 1885.
constitutional law 39
24
Text in Meiji bunka zenshò (note 18) at 247–252.
40 public law
IV
(i) This was the way things stood when on 10 January 1875 promi-
nent 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, judica-
ture, 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 con-
stitutional 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 coun-
cillors, 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 con-
stitutionalism as the national policy. A corresponding imperial edict
25
Nihon rekishi daijiten (note 10), vol. 3, p. 131.
constitutional law 41
was issued on 14 April 1875. However, the Osaka program was not
implemented in every respect, in particular the road to constitu-
tionalism seemed to become a long one, for in the government con-
servative 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 council-
lor 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 gov-
ernment) 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 addi-
tional 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 deter-
mined 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
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
29
General meaning, especially leprosy.
30
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 distin-
guished 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 consti-
tution, 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.
32
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 consti-
tutional 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.
constitutional law 45
36
R. Ishii (note 5), at 122.
37
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).
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 monar-
chies, 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, execu-
tive, 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 impe-
rial 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 47
25. Relations between each ministry and both houses of the diet.
26. Relations between each ministry and regional officials.
27. Conduct, promotion, or degradation of judicial officials.
28. Relations between judicial officials and both houses of the diet.
29. Responsibility and conduct of the public officials.
30. Privilege of provision for old age in favour of the public officials.
31. Local government system.
The list shows that the Japanese were well acquainted with the cru-
cial 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 con-
stitutional 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.
41
R. Ishii (note 5) at 300. W. Chambliss (note 5) at 370 calls the said office
“Legislation Research Bureau”.
48 public law
42
Taking the six last years of the dajòkan system (1880–1885) there were 14 coun-
cillors 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 pedi-
gree 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.
constitutional law 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 sec-
ond 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 depart-
ments. 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 respec-
tive 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 cab-
inet 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 insti-
tuted an important political activity.—A naidaijin had first been appointed in the
7th century, he served in the Imperial government (daijòkan) with a competence sim-
ilar to that of the ministers of the left and right. His post and duty were not reg-
ulated 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 public law
45
Hirobumi Itò himself had risen from the lowest class of samurai in Chòshù.
46
In 1906 he was appointed Resident General in Korea. Following his resigna-
tion 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.
constitutional law 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 bureau-
cratic form of government was the check on political parties’ par-
ticipation in the administration. The first party cabinet was established
in 1898, it is true, but at that time this was a rare occurrence. After-
wards, 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 charac-
ter 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.
50
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.
52 public law
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.
constitutional law 53
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 public law
VII
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.
constitutional law 55
VIII
IX
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 public law
61
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.
constitutional law 57
63
T. Miyazawa, cited in Miller (note 60) at 251.
64
This academic view, at first controversially disputed, had grown to be pre-
dominant 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.
58 public law
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.
constitutional law 59
68
Klaus Schlichtmann, Shidehara Kijùrò: Staatsmann und Pazifist, eine poli-
tische Biographie (Shidehara Kijùrò: Statesman and Pacifist, a Political Biography),
1998, p. 462 et seqq.
60 public law
APPENDIX A
(Meiji Kempo)
PREAMBLE
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.
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.
62 public law
Article II
The Imperial Throne shall be succeeded to by Imperial male descen-
dants, 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 pro-
visions 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 promul-
gated 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 pub-
lic 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-
constitutional law 63
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 exist-
ing 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 accor-
dance 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.
64 public law
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
Article XVIII
The conditions necessary for being a Japanese subject shall be deter-
mined 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, accord-
ing 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 pro-
vided 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 free-
dom 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.
66 public law
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
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 con-
cerning 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.
constitutional law 67
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 representa-
tions 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 con-
voked, 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 dis-
solve, 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.
68 public law
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 delib-
erations may, however, upon demand of the Government or by res-
olution 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 writ-
ing, or by any other similar means, he shall, in the matter, be
amenable to the general law.
constitutional law 69
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 com-
motion 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
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 what-
ever kind, that relate to the affairs of the State, require the counter-
signature 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.
70 public law
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 crim-
inal 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.
constitutional law 71
Article LXIII
The taxes levied at present shall, in so far as they are not remod-
elled 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 pro-
vided 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.
72 public law
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 exter-
nal or internal condition of the country, in case of urgent need for
the maintenance of public safety, the Government may take all nec-
essary 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 appro-
bation 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
constitutional law 73
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.
74 public law
APPENDIX B
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 con-
trolling human relationship and we have determined to preserve our
security and existence, trusting in the justice and faith of the peace-
loving 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.
constitutional law 75
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 accord-
ance 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.
76 public law
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 peo-
ple: (1) Promulgation of amendments of the constitution, laws, cab-
inet orders and treaties. (2) Convocation of the Diet. (3) Dissolution
of the House of Representatives. (4) Proclamation of general elec-
tion 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 pun-
ishment, reprieve, and restoration of rights. (7) Awarding of honors.
(8) Attestation of instruments of ratification and other diplomatic doc-
uments 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 pre-
ceding 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.
constitutional law 77
CHAPTER III
Article 10
The conditions necessary for being a Japanese national shall be deter-
mined by law.
Article 11
The people shall not be prevented from enjoying any of the funda-
mental human rights. These fundamental human rights guaranteed
to the people by this Constitution shall be conferred upon the peo-
ple 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 consid-
eration in legislation and in other governmental affairs.
Article 14
All of the people are equal under the law and there shall be no dis-
crimination 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 here-
after may receive it.
78 public law
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 servi-
tude, 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 politi-
cal 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.
constitutional law 79
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 communica-
tion 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 for-
eign 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 essen-
tial 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 wel-
fare and security, and of public health.
Article 26
All people shall have the right to receive an equal education corre-
spondent 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 edu-
cation shall be free.
80 public law
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 compensa-
tion 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 estab-
lished 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
constitutional law 81
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 pub-
lic 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 law-
ful at the time it was committed, or of which he had been acquit-
ted, nor shall he be placed in double jeopardy.
82 public law
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 Repre-
sentatives 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.
constitutional law 83
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
84 public law
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 mem-
bers. However, in order to deny a seat to any member, it is neces-
sary 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 meet-
ing 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-
constitutional law 85
Article 59
A bill becomes a law on passage by both Houses, except as other-
wise 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 pre-
clude 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 com-
mittee of both Houses, provided for by law, or in the case of fail-
ure 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.
86 public law
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, regard-
less 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 mem-
bers 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 pre-
cede 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.
constitutional law 87
Article 68
The Prime Minister shall appoint the Ministers of State. However,
a majority of their number must be chosen from among the mem-
bers 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 exer-
cises control and supervision over various administrative branches.
Article 73
The Cabinet shall, in addition to other general administrative func-
tions, perform the following functions: (1) Administer the law faith-
fully; conduct affairs of state. (2) Manage foreign affairs. (3) Conclude
treaties. However, it shall obtain prior or, depending on circum-
stances subsequent approval of the Diet. (4) Administer the civil ser-
vice, 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 can-
not include penal provisions in such cabinet orders unless authorized
by such law. (7) Decide on general amnesty, special amnesty, com-
mutation of punishment, reprieve, and restoration of rights.
88 public law
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 tri-
bunal shall be established, nor shall any organ or agency of the
Executive be given final judicial power. 3) All judges shall be inde-
pendent 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 admin-
istered by any executive organ or agency.
constitutional law 89
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 attain-
ment 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 pub-
lic 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.
90 public law
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 consider-
ation 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 appropri-
ated for the use, benefit or maintenance of any religious institution
or association, or for any charitable, educational or benevolent enter-
prises not under the control of public authority.
constitutional law 91
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 immedi-
ately following the period covered. 2) The organization and com-
petency 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 delibera-
tive 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.
92 public law
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 imme-
diately 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.
constitutional law 93
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 pro-
mulgation. 2) The enactment of laws necessary for the enforcement
of this Constitution, the election of members of the House of Coun-
cillors and the procedure for the convocation of the Diet and other
preparatory procedures necessary for the enforcement of this Cons-
titution 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 func-
tion 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 accord-
ance 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, suc-
cessors are elected or appointed under the provisions of this Con-
stitution, they shall forfeit their positions as a matter of course.
94 public law
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,
constitutional law 95
Minister of Finance
Ishibashi Tanzan,
Minister of State
Kanamori Tokujirò,
Minister of State
Zen Keinosuke
96 public law
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 organ-
ize 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 short-
term existence. The head of the administration (sòsai ) decided all
general matters, his office was the Head Secretariat. The other secre-
tariats dealt with Shintoism, domestic, foreign, military, financial, judi-
cial,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 reor-
1
Imperial Restoration Order, see chapter ‘Constitutional Law’.
2
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 secre-
tariat 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.
administrative law 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 des-
tined 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 Septem-
ber 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 min-
istries was destroyed. Due to growing criticism of this situation, the
6
See chapter ‘Constitutional Law’.
7
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: naikoku-
jimuka (10 February–13 March 1868), naikokujimukyoku (13 March–11 June 1868),
minbukan (19 May–15 August 1869). The naikokujimukyoku had no immediate succes-
sor, 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 cre-
ated prefectures called for an ordinary office with exclusive responsibility, and there-
fore 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.
98 public law
11
Satò (note 5) at 73.
12
Some duties were taken over from other ministries.
13
A. Satò (note 5), pp. 82–88.
administrative law 99
14
A. Satò (note 5), p. 92.
15
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 inter-
val 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], corre-
spondingly 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
100 public law
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.), Nihonshi-
shiryò 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 func-
tionaries. 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.
administrative law 101
(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 adminis-
trative 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 auton-
omy 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 them-
selves chiefly with budgetary matters.
(iv) The memorial recommended enacting a law on the levy of dis-
trict 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.
102 public law
25
See chapter ‘Constitutional Law’.
26
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’.
administrative law 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 cur-
rently 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 assem-
blies 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 collec-
tive 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 assem-
blies 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.
31
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.
104 public law
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 ques-
tion 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 sev-
eral localities,38 previously founded assemblies continued the business
of the traditional village assemblies (mura yoriai ). The pre-Meiji vil-
lage administration was not the same in all regions.39 Generally, there
35
Meiji bunka zenshù (note 32), at 312.
36
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.
administrative law 105
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 side-
ways’. 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 Institu-
tional 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.
106 public law
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 pre-
fecture 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 resolu-
tion 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 pre-
sent 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.
45
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
administrative law 107
disease; public schools within the prefecture and supplementary grants to elemen-
tary schools; construction and repair of government buildings in the rural divisions
and city wards; salaries, travel, and office expenses for officials of the rural divi-
sions and wards; hospitals and relief agencies; seashore offices and sea rescue oper-
ations; 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 chang-
ing boundaries or denominations, founding or abolishing a gun.
108 public law
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 men-
tioned, some assemblies already existed in earlier times. The first rel-
evant 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 tori-
atsukai 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.
administrative law 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 chair-
man, could submit a report to the said ministers immediately. Further-
more, 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 men-
tioned 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.
110 public law
52
1884 was the seventeenth year of the Meiji era.
53
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 con-
struction, (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 cul-
tural 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 ‘vil-
lage within the village’ (buraku), a private association within the framework of a pub-
lic 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 commu-
nity and lived in quarters on the fringes of the city, town, or village.
administrative law 111
tributions’. The other articles dealt with the right to vote and to be
elected, the chairman (the Law designated the headman of the com-
munity) 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.
55
Ishii/Chambliss (note 2), at 342/411.
56
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].
112 public law
and the local government had to be brought into line with the forth-
coming 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 senkyo-
sei ) 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.
59
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.
administrative law 113
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.
114 public law
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
72
Note 54.
73
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 any-
thing more of his drafts. Shortly before his departure he remarked that the fuken-
sei 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.
116 public law
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
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.
administrative law 119
79
See also note 49.
120 public law
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.
administrative law 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 administra-
tion. 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 per-
sonnel also. In the course of time changes in details were made.
2. The district office ( gunyakusho) was established as a purely admin-
istrative section under the Law Governing the Organization of Rural
Districts, City Wards, Towns and Villages. An assembly and a coun-
cil were provided for, it is true, but the district head ( gunchò ) was
the leading person: he was the president of the assembly and sum-
moned it, carried out its decisions, controlled district property and
public works, created the district officials who were paid from pre-
fectural taxes, and, upon the decision of the assembly, also the officials
who at the expense of the district were in charge of the district prop-
erty, 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.
122 public law
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 provi-
sions. 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 orga-
nization 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 democ-
ratized public life, and that, after all, was the goal after decades of
the rule of bureaucracy and militarism. Decentralization of author-
ity was another political objective, and so local autonomy was empha-
sized 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 sub-
jects. 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 equiva-
lent 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.
administrative law 123
91
R. Ishii (note 2) at 37. In part: W. Chambliss (note 2) at 49.
92
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.
124 public law
93
T. Minobe held the rule of law received as a positive norm into the funda-
mental 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 dev-
elop his personality fully through subordination to sovereignty. Absolute submis-
sion 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 pro-
per qualities of men. If men are to attain natural freedom, they can do so with-
out 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-
administrative law 125
dication), in vol. 3 of the ‘Lectures. . . .’, cited supra note 5, at 102. In those works re-
marks 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
126 public law
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 mat-
ter 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 vol-
ume, p. 46.
101
See p. 634.—If a claim for damages could be concluded from the judgement
administrative law 127
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.
128 public law
105
The proprietary right of any Japanese subject is inviolable.
106
On limitation of the proprietary right “within the bounds prescribed by law
or ordinance”.
administrative law 129
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 inten-
tion 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.
130 public law
109
N. Imamura, (note 108), loc. cit.
administrative law 131
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].
132 public law
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 dis-
posal 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.—
K. Hosokawa (note 2) at 181.
administrative law 133
117
H. Wada (note 103) at 129–132 records that there were 71 cases in peace-
time before 1914 (plus about 10 cases concerning procedural problems).
134 public law
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 pos-
sibly growling but at the same time aware of his position regarding
the influential enterprises, or loyally acknowledging the national pol-
itics 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 repeat-
edly 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 Commis-
sion 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 prefec-
tural 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 endeav-
our to mediate between the parties or persons otherwise concerned.
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.
administrative law 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 con-
trol 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 sub-
ordination 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 reor-
ganized 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’.
136 public law
123
Bettegumi, created in late bakufu times. Dissolved in 1872.
124
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 reor-
ganization 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.
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 coun-
try 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 intro-
duced.
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 subor-
dinates: 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 con-
currently daikeishi of the metropolitan police.130 The Police Bureau
dispatched officers to each district to supervise the local police per-
sonnel,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 trans-
ferred 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 con-
tribution 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.
138 public law
police remained with the Ministry of Justice. Six days later the gov-
ernment 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 estab-
lished. 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 devel-
oped to be much the same as a general police and increased its oper-
ations 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 polit-
ical 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 Japanese-
Russian 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, numer-
ous police offices and boxes, the Christian church, streetcars etc. The riot went on
for three days. Hibiya yakiuchi jiken.
administrative law 139
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 cab-
inets 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 upris-
ing 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 gover-
nor 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 pre-
fectures 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 head-
quarters are dòfuken keisatsu honbu (headquarters of Hokkaidò, munic-
ipal 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 spe-
cial 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 orga-
nized similar to those of the metropolitan order.
When the Police Bureau (keihoryò ) of the Ministry of Justice was
instituted (see above) its purpose was officially defined “to maintain
peace and order throughout Japan, protect the health of the peo-
ple, 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 peo-
ple 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 peo-
ple 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. to protect the people against disturbance,
ii. to care for health,
iii. to check dissipation and debauchery,
iv. 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 juris-
diction: contraventions147 and prostitution.
144
R. Ishii/W. Chambliss (note 2) at 191/248.
145
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.
142 public law
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.
151
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 con-
tributed 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 arbi-
trator 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.
144 public law
155
Loc. cit. (note 153) at 646.
156
K. Hosokawa (note 2) at 145.
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 Regu-
lations 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 enu-
merated in an ordinance of the Home Ministry of 29 September
1908 (keisatsuhan shobatsu rei ) and divided into three categories accord-
ing 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 punish-
ment 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.
158
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 prosti-
tution 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.
146 public law
162
Karyò, vocally like karyò = penal fine (see note 158), but dissimilar in writing.
163
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 vio-
lated, incurred the risk of a sanction.
167
Under its art. 17 labour movements and peasants’ movements were forbid-
den. 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.
administrative law 147
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
170
Tokugawa jidai keisatsu enkakushi, 2 volumes of 1020 and 874 pages.
171
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.
administrative law 149
173
Kòtsù keisatsu, Police Law art. 23–2.
174
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 con-
trol of all matters regarding speech, meetings, societies, elections, as well as for
police duties concerning individuals (e.g. mentally ill persons), things (e.g. danger-
ous cargo), and activities endangering the public peace. Police work must strictly
observe the rights of the people guaranteed by the Constitution.
176
R. Ishii/W. Chambliss (note 2) at 485/557.
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 decen-
tralize 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
150 public law
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 char-
acters 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, read-
ing, 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 dictionar-
ies under the respective terms given above.
188
See note 181.
189
Prior to the Meiji period there was no compulsory school attendance for all
152 public law
children. The ‘System of Education’ of 5 September 1872 (see above) said: with-
out distinction between samurai, farmers, craftsmen, tradesmen, and women “in a
community there shall not be any (extended) family lacking education, and the fam-
ily should see to it that none of its members will be devoid of education”. In addi-
tion, 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 con-
trol to a certain extent.
administrative law 153
191
The ceremonies were the business of an office in the imperial court. The min-
istry 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.
154 public law
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 sep-
aration 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’.
administrative law 155
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 pri-
mary 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 corre-
sponding 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 con-
trol 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.
156 public law
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
R. Ishii/W. Chambliss (note 2) at 111/149.
administrative law 157
204
R. Ishii/W. Chambliss (note 2) at 179/233.
205
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, subse-
quently, the dominant political coterie for many years.
158 public law
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.
administrative law 159
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.
160 public law
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 main-
tained 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.
administrative law 161
to the judicial officials, however, there were two exceptions: the judge
was exempt from the provision that required the civil servant to fol-
low 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 govern-
ment, 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 pri-
vately, 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 manifes-
tations, 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.
162 public law
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 pas-
sim. 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 exam-
ple 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
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 ser-
vice. 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 sys-
tems were combined under the Law for the Pension of Soldiers (Gunjin onkyù hò ).
164 public law
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 bud-
get (kanpeisha) or the government’s budget (kokuheisha). See W. Gundert (note 195)
at 152 and 213.
administrative law 165
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 sol-
dier 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 sepa-
ration 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
Ronald Frank
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.
168 civil code
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
7
Steenstrup, p. 122.
170 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 mono-
poly 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 par-
allels 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 pre-
viously 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 pro-
mulgated 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) coin-
cided 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 regu-
lating 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 appar-
ently 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 govern-
ment 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 trans-
late 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.
172 civil code
12
His famous injunction to Mitsukuni to speed up the process by simply replac-
ing the word “French” with “Japanese”, though never documented, appears to cap-
ture 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.
general provisions 173
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.
174 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 gov-
ernment 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, delib-
eration 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 pro-
duced 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 depart-
ment. 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 tra-
ditional customary law into the draft of the civil code. However, the
draft produced by 1878 was closely mirroring the French code, per-
haps owing to the fact that Mitsukuri Rinshò had once again been
instrumental in its compilation.
17
For a detailed list of these issues see ibid., pp. 8–9.
18
It was replaced by the Council of Elder Statesmen (Genrò-in).
general provisions 175
19
Parts of Book 2 (Property) and Book 3 (Acquisition of Property) were sub-
mitted to the Cabinet for review in March of 1886.
176 civil code
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.
general provisions 177
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.
178 civil code
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.
general provisions 179
25
In fact, Hozumi Yatsuka would make a name for himself as a commentator
on the character of the Meiji Constitution.
180 civil code
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.
general provisions 181
Civil Code and the Commercial Code until 1896. This bill was even-
tually 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 his-
torical 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 oth-
ers, 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.
182 civil code
30
Hozumi Nobushige, “Doitsugaku no Nippon ni Oyoboseru Eikyò”, as quoted
in ibid., p. 204, note 8. The emphasis is Hozumi’s.
184 civil code
School of Law, was firmly convinced that law was a historical prod-
uct 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, eco-
nomic 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 pro-
duced in Germany by a commission under the leadership of an out-
spoken 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, result-
ing in a code that is designed for professionals rather than the aver-
age citizen, a “legal calculating machine par excellence”.31 Interestingly
enough, upon its publication the first draft of the BGB faced seri-
ous 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.
32
It should also be noted, however, that Hozumi’s comments were made years
after the New Civil Code had been enacted.
general provisions 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 deci-
sion to draft a civil code had been made, the code civil was widely
praised as the most comprehensive and advanced code on the con-
tinent. 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 hereto-
fore 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 note-
worthy 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 instru-
mental in the drafting of the New Civil Code.
Despite the significant growth in the interest in German law discern-
ible 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.
186 civil code
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 codifica-
tion. 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 promul-
gated 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 inter-
est 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.
188 civil code
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.
general provisions 189
38
Equivalent to the German “Geschäftsfähigkeit”.
39
“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.
190 civil code
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 busi-
ness, 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 propo-
sition 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.
43
Ibid.
44
It should be noted, however, that in Japan this was a relatively recent devel-
opment, since throughout the Middle Ages women had enjoyed considerable prop-
erty rights independent of men.
general provisions 191
45
See Ishii (note 26), pp. 607–608.
192 civil code
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 foun-
dations (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”.
47
“Stiftung”.
48
An association denotes an aggregate of persons, while a foundation is consid-
ered an aggregate of property.
general provisions 193
49
See Ishii (note 26), p. 609.
50
For commercial enterprises please refer to the section on Commercial law,
below.
194 civil code
51
See Hosokawa (note 42), p. 170.
52
Ibid.
general provisions 195
of things in the Old Civil Code. The Old Civil Code had also pro-
vided 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
53
Proclamation #9 of January 13, 1873, as quoted in ibid., p. 171.
196 civil code
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 neg-
ligence (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 prob-
lem 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
See Hosokawa (note 42), pp. 173–174.
55
For an English translation of this document see Ishii (note 26), pp. 611–612.
198 civil code
56
See Hosokawa, p. 172 for a summary of the provisions.
general provisions 199
58
See Hosokawa (note 42), p. 174.
general provisions 201
The New Civil Code, following the example of the German BGB, con-
sidered 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.
202 civil code
60
See ibid., p. 615.
general provisions 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 pre-
scription 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.
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
Quoted in Hosokawa (note 42), p. 175.
62
For the text see Pokketo Roppò (Tokyo Yuikaku, 1996), p. 289. Translation my own.
204 civil code
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 mar-
ried women. Since that time a radical change in the awareness of
private rights has taken place, which has been prepared and accom-
panied 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 secu-
rity 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 noth-
ing 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 origi-
nal and foundation of this right.”1 Japan is no exception in this con-
text: the process of modernization has—at least during the first two
decades after the Restoration—been dominated by political and eco-
nomic measures concerning property through Land Tax Reform.2
Although we are treating here a matter of civil law, it is neces-
sary to give a short overview of certain fundamental measures of the
1
W. Blackstone: Commentaries on the Laws of England, vol. 2, p. 2.
2
For the most diligent research on this subject refer to M. Fukushima: chisòkai-
sei no kenkyù (Studies on Land Tax Reform), 1970.
206 civil code
3
C. Steenstrup: A History of Law in Japan until 1868 (1991), pp. 117, 139.
property law—real rights 207
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 indi-
viduals, 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 individu-
als may be compelled nolens volens to part with their property, in
order that the requirements of a given ease may be met. This pro-
vision 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.
property law—real rights 209
7
J. Siemes: Hermann Roesler and the making of the Meiji State (1968) p. 136.
8
Coll. J. Pittau: Political Thought in Early Meiji Japan 1868–1889 (1967), pp.
131f., 157.
210 civil code
9
See W. Röhl: Die Japanische Verfassung (1963), 159f.
10
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.
property law—real rights 211
3. Ideas of property and real rights in the old Japanese Civil Code
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.
212 civil code
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 devel-
oped; the ‘real’ character of a right was understood to be an inde-
pendent 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 elab-
orated 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 pri-
mary considerations in a dispute with a third party. Thus the
acquisition, or loss, or alteration of a real right could only be dis-
puted with a third party if the property had been registered accord-
ing 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 deal-
ing with this kind of problem would have been to invoke the
Registration Law (tòki hò ), which had been introduced as law No. 1
property law—real rights 213
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 begin-
ning 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
214 civil code
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 own-
ership 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.
property law—real rights 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 homo-
geneous 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 col-
lectively”, 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 intro-
duced to Japan through the Meiji Restoration, especially with the
recognition of private ownership of land resources and the confer-
ring of land titles to protect the properties of legitimate title hold-
ers. 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.
216 civil code
3. Structure of emphyteusis
The revised Code abolished the system of permanent lease (eishaku-
ken) provided by the Boissonade Code and introduced instead, for
the purposes of agriculture and cattle-breeding, the system of emphy-
teusis (eikosakuken), aiming originally at the legal acknowledgement of
former existing customs in that respect. The content of emphyteu-
sis 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 provi-
sions, such customs should prevail. But by means of a system ori-
entated the original meaning of emphyteusis, which had the character
of an unlimited part-ownership, became restricted again: its dura-
tion 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-owner-
ship of land, which had served to collect duties and taxes, from the
regulations of the revised Civil Code, and to exchange it for a mod-
ern right of usufruct. But on the other hand the introduction of
emphyteusis with its special character, that is lacking in other west-
ern 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.
property law—real rights 217
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 mort-
gage, deed of trust, security etc. The fact that there exists a specific mortgage sys-
tem 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).
220 civil code
16
See Matsumoto: Teitòken to riyòken, vol. 80 (1979), p. 300f.
property law—real rights 221
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.
222 civil code
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 extin-
guished. 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,
224 civil code
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 pre-
condition 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 estab-
lish special, separate laws which provided for real security. The Code
itself contains four types of real securities: right of retention, prefer-
ential rights, pledge and hypothec, in comparison with western laws
property law—real rights 225
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 coun-
terpart in the German Civil Code (BGB) has often been cited as yet
another indication that the drafters of the New Civil Code were fol-
lowing 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 influ-
enced 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 devel-
opment of a variety of the provisions set forth in Book Three of the
Japanese Civil Code will be the focus of the following pages.
matters (zatsumu sata). Within the latter category fell all cases dealing
with movable property, but also cases concerning the validity of doc-
uments 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 sub-
stantive one, and that real property cases were accorded greater
attention in the courts.
Muromachi period (1336–1573) legal practice continued this pro-
cedural distinction, although with the rise of warlord rule in the six-
teenth 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 mort-
gaged 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 mul-
titude 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 agree-
ment 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
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 “sub-
stantial” in this context. See his “Contracts”, p. 72.
230 civil code
5
Ibid., p. 63.
law of obligations 231
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.
232 civil code
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
11
For a description of the fundamentals of this concept see Konrad Zweigert
and Hein Kötz, An Introduction to Comparative Law, Vol. 1 (Amsterdam: North-
Holland Publishing Co., 1977), pp. 178–185.
234 civil code
law, one could argue that Japanese civil law, despite all its resem-
blance 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 histor-
ical background.
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 deter-
mine 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.
13
For a summary of this law see Hosokawa (note 6), p. 209.
236 civil code
14
Ibid., p. 208.
15
Kiyoshi Igarashi, Einführung in das Japanische Recht (Darmstadt; Wissenschaftliche
Buchgesellschaft, 1990), p. 89.
law of obligations 237
16
See Hosokawa, (note 6), p. 210.
17
For the original text see ibid., p. 212.
238 civil code
18
For a portion of the text see ibid. pp. 211–212.
law of obligations 239
19
Steenstrup (note 3), p. 147.
20
For examples see Hosokawa (note 6), 213.
240 civil code
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 sub-
sidiary 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
21
Igarashi (note 45), p. 94.
22
Ibid.
23
Edict #99 of July 6, 1876. See Hosokawa (note 6), p. 217.
242 civil code
24
The term employed was sashi-hiki kanjò, or “balance calculation”.
244 civil code
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 civil code
27
The text of this edict can be found in Hosokawa (note 9), p. 218.
28
See Ishii (note 9), pp. 612, 646.
law of obligations 247
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 pro-
visions 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 con-
tract 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 man-
aged to protect the interests of contracting parties better than the
old code had done, while at the same time providing maximum dis-
cretion and contract autonomy.
248 civil code
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 com-
pleted 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 expec-
tation 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 fash-
ion. 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
law of obligations 249
over land registered in his name. The sale of arable land was in
principle forbidden, but this prohibition covered only so-called “per-
manent 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 perma-
nent. 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 con-
tract 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 con-
tract 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.
250 civil code
30
For examples of such provisions from local customary law see ibid., p. 221.
law of obligations 251
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 repur-
chase of arable land.31 In Izumo province (present day Shimane pre-
fecture) 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 pre-
fecture) 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.
252 civil code
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.
32
For a more detailed description, see sections 3.3.1. and 3.3.2, above.
law of obligations 253
33
See chapter 3.2.
254 civil code
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.
34
It remained in force until 1882.
35
Ishii (note 9), p. 652.
36
For a summary of its provisions see Hosokawa (note 6), pp. 3, 229.
law of obligations 255
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 inter-
mediary or go-between should be mentioned. A go-between was fre-
quently 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
law of obligations 257
3.3.5.12. Associations
Since the topic of associations or partnerships (kumiai ) will be cov-
ered 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 com-
mon 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 pos-
sess 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 char-
tered as monopolistic organizations by the authorities, they did make
37
Ishii (note 9), p. 655.
38
Chapter 4.
258 civil code
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
When the drafters of the New Civil Code dealt with provisions on
Business Management ( jimu kanri ), it was decided to separate this
39
For a brief discussion of kabu nakama see Steenstrup, pp. 148–149.
40
On the definition of compromise see Henderson, Conciliation, pp. 186–187.
law of obligations 259
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 with-
out express authorization does not necessarily imply unjust enrich-
ment. 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 oblig-
ation of the manager is to conduct the business in manner best cal-
culated 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.
41
See Hosokawa (note 6), pp. 234–235 for excerpts from relevant court decisions.
260 civil code
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 neg-
ligent 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 devel-
opments deserve mention. The first is the introduction in 1947 of a
law governing the liability of the state and its organs and represen-
tatives. 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 lia-
bility 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
See Igarashi (note 15), p. 108.
43
Hosokawa (note 6), pp. 235–237 provides evidence for that fact.
44
See Igarashi (note 25), p. 112.
law of obligations 261
45
For example the Minamata disease, Yokkaichi and Kawasaki asthma, to name
but a few.
262 civil code
Petra Schmidt
1. Introduction
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 civi-
lization 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
family law 263
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 leg-
islation, 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 tradi-
tional 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 lec-
turing 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 Com-
mission’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 guid-
ance.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 lit-
eral 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.
266 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 de-
manded 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 follow-
ing 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 ‘Rule-
by-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 imi-
tation 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
38
Known as hòten ronsò or hòten sògi.
39
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
Hozumi, note 6, at 9–10.
43
sòsoku
44
bukken
45
saiken
46
shinzoku
47
sòzoku
48
Z. Nakagawa, Sòzoku (Succession) (Tòkyò 1964) 27.
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, how-
ever, 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
49
Yoshioka, note 29, at 11; Ishii, note 9, at 661.
50
Koseki-hò; aiming at the recording of all men liable for military service—uni-
versal conscription had been intoduced in 1870—every Japanese, except for mem-
bers 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
family law 269
54
Ishii, note 9, at 664.
55
Ka-shizoku katoku sòzoku-hò, Decree No. 28 of 1872.
56
Otake/Maki, note 50, at 250.
270 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 prop-
erty 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 ances-
tors plus current members of a ‘house’.63 The ‘Enforcement Regula-
tions 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
Otake/Maki, note 50, at 248.
64
Yoshioka, note 29, at 15.
family law 271
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 japa-
nischen Adoptionsrecht (Change and Continuity in Japan’s Law of Adoption)
(Köln . . . 1996) 31.
272 civil code
69
Otake/Maki, note 51, at 251.
70
Ishii, note 65, at 265 et seq.
71
Otake/Maki, note 51, at 251.
72
Yoshioka, note 29, at 34; Ishii, note 9, at 668.
73
Otake/Maki, note 51, at 251.
74
Otake/Maki, note 51, at 248.
75
Yoshioka, note 29, at 39; Ishii, note 9, at 669.
family law 273
76
Ishii, note 9, at 669–670.
77
Chizai-hò; Great Council of State Decree No. 37 of 1880.
78
Yoshioka, note 29, at 44.
79
Otake/Maki, note 51, at 252.
80
Otake/Maki, note 52, at 252.
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
Ishii, note 65, at 468.
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.
274 civil code
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 accom-
panied 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 dis-
appearance of the spouse for two years;87 imprisonment of the husband
for one year or more; profligacy of the husband and severe illness.88
84
Ishii, note 65, at 444.
85
Otake/Maki, note 51, at 252.
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
Ishii, note 9, at 672–673.
89
chakushi
90
seishi
91
shoshi
family law 275
1874 even a child born within 300 days of the dissolution of a mar-
riage 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 nat-
ural 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 chil-
dren 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
93
Great Council of State Decree No. 209 of 1875. Registration was not encour-
aged, though, since the ‘Outline tor the New Criminal Law’ threatened illicit sex-
ual relations with severe corporal punishment; Ishii, note 9, at 675.
94
Otake/Maki, note 51, at 254.
95
Yoshioka, note 29, at 50.
96
ranri-shi
97
Otake/Maki, note 51, at 253.
276 civil code
98
Ishii, note 9, at 676–677; Otake/Maki, note 50, at 254; also see Mayer,
note 67, at 32.
99
Yoshioka, note 29, at 55; Ishii, note 9, at 677.
100
mukoyòshi
101
nyùfu, Ishii, note 9, at 678.
102
Yoshioka, note 29, at 57; Ishii, note 9, at 678.
103
Ishii, note 9, at 679; Otake/Maki, note 51, at 254.
family law 277
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
Otake/Maki, note 51, at 255.
108
Yoshioka, note 29, at 77; Ishii, note 9, at 682.
278 civil code
109
Yoshioka, note 29, at 78; Ishii, note 9, at 682.
110
Shogunate government.
111
Feudal lords.
112
kòken
113
chùkei sòzoku
114
Yoshioka, note 29, at 79; Ishii, note 9, at 683.
115
Ishii, note 9, at 684.
116
shinzoku-kai
117
Note 9, at 685.
118
Otake/Maki, note 50, at 248–249.
family law 279
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.
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.
280 civil code
127
Art. 32 Old Code.
128
Art. 33 Old Code.
129
Arts. 35–37 Old Code.
130
Art. 38 Old Code.
131
Vide Art. 68 Old Code.
132
Art. 70 Old Code.
133
Arts. 78, 81 Old Code.
134
Arts. 79, 80 Old Code.
135
Art. 81 Old Code.
136
Art. 87 Old Code.
137
Art. 32 Old Code.
family law 281
138
Art. 91 Old Code.
139
Art. 98 Old Code.
140
Art. 103 Old Code.
141
Art. 23 Old Code.
142
Art. 1061 Old Code.
143
Art. 107 Old Code.
144
Art. 109 Old Code.
145
Art. 110 Old Code.
146
Art. 11 Old Code.
147
Art. 115 Old Code.
148
Art. 134 Old Code.
149
Art. 22 Old Code.
150
Arts. 137, 140 Old Code.
151
Arts. 138, 139 Old Code.
282 civil code
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.
153
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
Ishii, note 9, at 685.
160
Arts. 26, 27 Old Code.
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 Transla-
tion 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).
family law 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
162
Tappe, note 5, at 15.
163
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 devel-
opment 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 improve-
ment 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.
284 civil code
169
Art. 733 Meiji Civil Code.
170
shoshi
171
Art. 735 Meiji Civil Code.
172
Vide Art. 732 Meiji Civil Code.
173
nyùfu; Art. 736 Meiji Civil Code.
174
Arts. 737, 738 Meiji Civil Code.
175
Art. 750 Meiji Civil Code.
176
Art. 749 Meiji Civil Code.
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 for-
eigners could not belong to a house; Hozumi, note 6, at 70.
180
Vide Art. 754 Meiji Civil Code.
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.
family law 285
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 ‘per-
son 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
Vide Art. 753 Meiji Civil Code.
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
Art. 727 Meiji Civil Code.
189
chakubo
190
shoshi, Art. 728 Meiji Civil Code.
286 civil code
191
Art. 765 Meiji Civil Code.
192
Art. 767 I Meiji Civil Code.
193
Art. 768 Meiji Civil Code; DeBecker, note 160, at 43.
194
Arts. 769–771 Meiji Civil Code.
195
Arts. 772, 750 Meiji Civil Code.
196
Watanabe, note 82, at 364.
family law 287
197
Vide Arts. 750, 772 Meiji Civil Code.
198
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
Arts. 801–806 Meiji Civil Code.
200
Art. 789 I Meiji Civil Code.
201
Art. 798 Meiji Civil Code.
202
Art. 790 Meiji Civil Code.
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.
288 civil code
205
Art. 812 I Meiji Civil Code.
206
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
Art. 827 Meiji Civil Code.
214
Art. 836 Meiji Civil Code.
family law 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 prin-
cipally 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. Cham-
berlain writes ‘It is strange, but true, that you may often go into a
Japanese family and find half-a-dozen persons calling each other par-
ent 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 pro-
visions, and Art. 200, which stipulated aggravated punishment for the killing of
one’s own ascendants, was only abolished in 1995, after having been ruled uncon-
stituional by the Supreme Court in 1973.
216
Art. 877 Meiji Civil Code.
217
yòshi engumi
218
Watanabe, note 82, at 369.
219
Hozumi, note 6, at 53–54.
220
Art. 837 Meiji Civil Code.
221
Art. 838 Meiji Civil Code.
222
Art. 839 Meiji Civil Code.
223
Art. 841 Meiji Civil Code.
224
Art. 843 Meiji Civil Code.
225
Art. 744 Meiji Civil Code.
290 civil code
226
Art. 874 Meiji Civil Code.
227
Arts. 727, 860, 861 Meiji Civil Code.
228
Art. 862 Meiji Civil Code.
229
Many Meiji period political leaders and jurists, however, were of the impres-
sion that the era of the house had come to an end with the registration of indi-
viduals 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 com-
parison to the western understanding see Gubbins, note 1, at VI et seq.
230
shinken
231
Art. 877 I; Hozumi, note 6, at 44–45.
family law 291
232
DeBecker, note 160, at 124–125.
233
Art. 879 Meiji Civil Code.
234
Art. 880 Meiji Civil Code.
235
Art. 88l Meiji Civil Code.
236
Art. 882 I Meiji Civil Code.
237
Art. 883 I Meiji Civil Code.
238
Art. 884 Meiji Civil Code.
239
Art. 886 Meiji Civil Code.
240
Art. 885 Meiji Civil Code.
241
Art. 896 Meiji Civil Code.
242
DeBecker, note 160, at 142.
243
Art. 897 Meiji Civil Code.
244
kaiken
292 civil code
245
Art. 900 Meiji Civil Code.
246
Arts. 901–903 Meiji Civil Code.
247
Art. 904 Meiji Civil Code.
248
Vide Arts. 917–936 Meiji Civil Code.
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
Art. 747 Meiji Civil Code.
252
DeBecker, note 160, at 22.
253
Art. 954 Meiji Civil Code.
254
Art. 959 Meiji Civil Code.
family law 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 dur-
ing the 1920s many critics of the political system became aware of
the incompatibility of democracy and the ‘house’ system. This aware-
ness 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 rec-
ommendations were, besides the general improvement of the spouse’s
(wife’s) position, the weakening of the position of the heir to the head-
ship 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
Watanabe, note 82, at 371.
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
262
Schmidt, note 254, at 13.
263
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).
family law 295
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
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 repeat-
edly 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 pro-
vision 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 col-
lapse. 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
Watanabe, note 82, at 373.
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
278
Y. Watanabe, Kazoku to hò (The Family and the Law) (Tòkyò 1973) 42.
279
Wagatsuma, note 263, at 15–16.
280
Wagatsuma, note 263, at 42.
281
Watanabe, note 82, at 373.
282
The drafters oriented their work to a certain degree on American law, leed-
ing 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.
family law 299
The Code has been amended several times since, with especially
meaningful revisions in 1962, 1980 and 1987.283
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
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 dia-
davante the change of the name might cause in the workplace, urging a reform;
see Japan Times 28 February 1996 at 1.
290
Arts. 751, 769 Civil Code.
291
Arts. 755–762 Civil Code.
300 civil code
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 LEG-
ISLATION 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
Arts. 763, 764 Civil Code.
295
Art. 700 II Civil Code; one example herefor is the Supreme Court’s judg-
ment 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 pre-
requisites 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 cou-
ple lived in a naien relationship, the courts have repeatedly granted
compensation to the deserted partner.297
296
Judgment of 2 September 1987, in Minshù 41–6–1423.
297
See e.g. Great Court of Judicature 26 Jan. 1915 (Minroku 21–49).
298
Art. 772 II Civil Code.
299
Arts. 774, 775, 777 Civil Code.
300
Art. 779 Civil Code.
301
Art. 795 Civil Code.
302
Art. 798 Civil Code.
303
Art. 797 Civil Code.
302 civil code
304
Arts. 817 a–j Civil Code.
305
Vide Arts. 811–817 Civil Code.
306
Art. 818 Civil Code.
307
Art. 821 Civil Code.
308
Art. 823 Civil Code.
309
Art. 834 Civil Code.
310
Art. 838 Civil Code.
311
Arts. 839–841 Civil Code.
312
Art. 877 Civil Code.
family law 303
9. Conclusion
313
Arts. 878–880 Civil Code.
314
Kawashima, note 281, at 57.
304 civil code
315
Murakami, note 273, at 105.
316
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 sup-
port as well various provisions of the Law of Family Registration.
law of succession 305
Petra Schmidt
1. Introduction
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 eigh-
teenth 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 increas-
ing 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, ulti-
mogeniture, succession of the eldest child irrespective of sex, or suc-
cession of the most talented child to continue a family vocation.9
6
rònin; Böx, note 5, at 48.
7
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.
law of succession 307
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
19
Dajòkan
20
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 chil-
dren’ (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.
law of succession 309
30
Otake/Maki, note 12, at 255.
31
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
Otake/Maki, note 12, at 254.
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.
310 civil code
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
Ishii, note 35, at 678.
43
Great Council of State Decree No. 3.
44
Otake/Maki, note 12, at 256.
law of succession 311
45
Otake/Maki, note 12, at 257.
46
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
Ishii, note 32, at 691.
312 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 ex-
plained 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 even-
tually 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.
49
See ‘Family Law’ 2.
50
Minpò hensan-kyoku
51
Genrò-in
52
Shihò-shò
53
Hòritsu torishirabe iin-kai
54
Art. 243 Old Code.
55
nyùfu
56
See Arts. 252, 258 Old Code.
law of succession 313
57
Furukawa, note 18, at 49.
58
Ishii, note 35, at 689; also see ‘Family Law’ 4.3.
59
Vide Art. 158 Old Code.
60
Art. 106 I Old Code.
61
Art. 107 Old Code.
62
Art. 109 Old Code.
63
Art. 110 Old Code.
64
Art. 11 Old Code.
65
Ishii, note 35, at 690–1.
314 civil code
66
Art. 245 Old Code.
67
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
Furukawa, note 18, at 61.
70
For further details see Schmidt, note 1.
71
See 3.
72
hòten chòsa-kai
73
Law No. 89.
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
74
Law No. 9.
75
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 rel-
atives of a former head as well as relatives who had entered the ‘house’ upon mar-
riage 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.
316 civil code
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 ori-
gin upon a divorce; Art. 739 Meiji Civil Code.
88
inkyo
89
Art. 752 Meiji Civil Code.
90
Art. 755 Meiji Civil Code.
91
Vide Art. 195 Meiji Civil Code.
92
Vide Art. 970 Meiji Civil Code.
93
Art. 979 Meiji Civil Code.
94
Art. 982 Meiji Civil Code.
95
Art. 984 Meiji Civil Code.
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
Art. 973 Meiji Civil Code.
law of succession 317
101
Art. 970 I No. 1 Meiji Civil Code.
102
Art. 970 I No. 2 Meiji Civil Code.
103
Art. 970 I No. 3 Meiji Civil Code.
104
Art. 970 I No. 4 Meiji Civil Code.
105
Art. 970 I No. 5 Meiji Civil Code.
106
shòso sòzoku: succession in place of lineal ascendant.
107
Art. 979 I Meiji Civil Code.
108
Art. 979 II Meiji Civil Code.
109
shinzoku-kai; see ‘Family Law’.
110
Art. 982 Meiji Civil Code.
111
Art. 984 Meiji Civil Code.
112
Art. 985 Meiji Civil Code.
113
Art. 1020 Meiji Civil Code.
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’ head-
ship 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 succes-
sion to a ‘house’ was the succession to the ownership of genealogi-
cal 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
Art. 1130 Meiji Civil Code.
115
Art. 969 Meiji Civil Code.
116
haijo
117
Art. 975 I Meiji Civil Code.
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 construc-
tions thereupon dedicated to the ancestors of the house; DeBecker, note 81, at 28.
law of succession 319
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 suc-
cession was already about to leave behind the idea of succession to status for suc-
cession 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
Art. 992 Meiji Civil Code.
124
Art. 992 Meiji Civil Code.
125
Arts. 994–996 Meiji Civil Code.
126
sòzoku-nin no kòketsu
320 civil code
127
Art. 1051 Meiji Civil Code.
128
Vide Art. 1052 II Meiji Civil Code.
129
Art. 1057 I Meiji Civil Code.
130
Art. 1058 Meiji Civil Code.
131
Art. 1059 Meiji Civil Code.
132
Disqualification of an heir to the headship of a house.
133
Vide Art. 975 Meiji Civil Code.
134
Art. 998 Meiji Civil Code.
135
Art. 1001 Meiji Civil Code.
136
Art. 1004 Meiji Civil Code.
137
tanjun shònin
138
gentei shònin
139
hòki
140
Art. 1017 Meiji Civil Code.
141
Art. 1023 Meiji Civil Code.
law of succession 321
142
Art. 1024 Meiji Civil Code.
143
Vide Arts. 1025–1037 Meiji Civil Code.
144
yuigon
145
Art. 1061 Meiji Civil Code.
146
hòkatsu meigi no izò
147
tokutei meigi no izò; see Art. 1064 Meiji Civil Code.
148
Art. 848 Meiji Civil Code.
149
Arts. 976, 1000 Meiji Civil Code.
150
Arts. 981, 979 Meiji Civil Code.
151
Arts. 1067, 1076 et seq. Meiji Civil Code.
152
iryù-bun
153
Art. 1131 Meiji Civil Code.
154
Vide Art. 1004 Meiji Civil Code.
155
zòyo
156
izò
157
Arts. 1132 et seq. Meiji Civil Code.
322 civil code
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 non-
members 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
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.
159
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).
law of succession 323
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 coop-
eration 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 stand-
point 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).
324 civil code
170
Arts. 887 et seq. Civil Code.
171
Art. 890 Civil Code.
172
Art. 892 Civil Code.
173
Vide Art. 902 Civil Code.
law of succession 325
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
Art. 904 Civil Code.
326 civil code
178
Art. 906 Civil Code.
179
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
Art. 921 Civil Code.
181
Art. 922 Civil Code.
182
Art. 920 Civil Code.
183
Art. 1028 Civil Code.
184
Before the amendment of 1980 secured portions were half of the estate for
spouse and/or children, otherwise one third.
law of succession 327
185
Art. 781 II Civil Code.
186
Art. 839 I Civil Code.
187
Art. 848 Civil Code.
188
Art. 893 Civil Code.
189
Art. 894 II Civil Code.
190
Art. 1006 I Civil Code.
191
Art. 41 II Civil Code.
192
Art. 902 Civil Code.
193
Art. 908 Civil Code.
194
Art. 914 Civil Code.
195
Art. 964 Civil Code.
196
Art. 1002 II Civil Code.
197
Art. 1003 Civil Code.
198
Art. 1034 Civil Code.
199
Art. 897 I Civil Code.
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
Arts. 968–970 Civil Code.
203
Arts. 976–984 Civil Code.
328 civil code
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 pri-
mogeniture 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 thor-
ough revision to instigate democracy in family relations, by abolish-
ing 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 indus-
trialization and urbanization, brought about by Japan’s rapid eco-
nomic 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
Arts. 984, 893, 894 Civil Code.
205
Art. 963 Civil Code.
206
Arts. 982, 973 Civil Code.
207
See ‘Family Law’.
208
Schmidt, note 1, at 99 et seq.
law of succession 329
209
Nògyò kihon-hò; Law No.
210
Schmidt, note 1, at 105.
211
For a detailed study of this matter see Schmidt, note 1, at 117 et seq.
CHAPTER FOUR
4.1 Introduction*
1. Legal Overview
This chapter deals with the historical development of trade and eco-
nomic 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 indus-
trial 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 vol-
ume.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
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. per-
spective, 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
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
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 commercial and corporate law
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 commercial and corporate law
a) Political Necessities
The introduction of a modern trade and economic law regime mod-
eled 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 pro-
hibiting 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 much-
needed 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 extraterrito-
rial privileges of the foreigners, the Meiji government began trying
to renegotiate the treaties in 1873, which had become an increas-
ingly 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 com-
pilation 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).
the early years: 1868‒1899 337
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 commercial and corporate law
15
Crawcour, supra note 14, at 576 et seq.
16
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 hochin-
dustrialisierten 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).
the early years: 1868‒1899 339
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
Crawcour, supra note 14, at 617.
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 Develop-
ment, 23 J. Jap Stud. 69 et seq. (1997).
25
Cited after the translation of Hirschmeier & Yui, supra note 9, at 76–77.
340 commercial and corporate law
26
Cf. Nakamura, supra note 23, at 39.
27
See infra c) (2).
28
Crawcour, supra note 14, at 616.
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.
the early years: 1868‒1899 341
32
Cf. Crawcour, supra note 9, at 385.
33
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 [Socio-
Economic 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).
342 commercial and corporate law
36
Cf. Pauer, supra note 34, at 112.
37
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
Cf. Pauer, supra note 34, at 105.
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 cita-
tion is at p. 172.
41
Cf. the incident reported by Murakami, supra note 19, at 2.
the early years: 1868‒1899 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 coopera-
tion.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 opportu-
nity for the establishment of a banking system.46
42
Cf. Hirschmeier & Yui, supra note 9, at 111.
43
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
Cf. Hirschmeier & Yui, supra note 9, at 92 et seq.
45
Cf. Hirschmeier & Yui, supra note 9, at 79.
46
Cf. Kobayashi & Kobayashi, supra note 29, at 45.
344 commercial and corporate law
47
Cf. Tamaki, supra note 43, at 25 et seq.; Kanno, supra note 34, at 110 et seq.
48
Cf. Kanno, supra note 34, at 249; Pauer, supra note 34, at 111.
49
Tamaki, supra note 43, at 27.
50
Cf. Tamaki, supra note 43, at 28–39.
the early years: 1868‒1899 345
51
Tamaki, supra note 43, at 33.
52
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.
346 commercial and corporate law
Table 1
Increase of Companies Between 1881 and 1899
55
Cf. Hirschmeier & Yui, supra note 9, at 89; Crawcour, supra note 9, at 391
et seq.
56
Cf. Fukushima, supra note 40, at 184.
57
See infra 2. b).
58
Cf. Hirschmeier & Yui, supra note 9, at 90.
the early years: 1868‒1899 347
Table 1 (cont.)
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 lim-
ited 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 non-
government 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.
60
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.
348 commercial and corporate law
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
Cf. Hirschmeier & Yui, supra note 9, at 112.
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.
the early years: 1868‒1899 349
d) Stock Exchanges
Between 1875 and 1877 the government issued bonds on a large-
scale 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 trad-
ing 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 com-
panies 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. Pauer, supra note 34, at 121.
71
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.
350 commercial and corporate law
76
Torihiki-jo-hò, [Exchange Law], Law No. 5 of 1893.
77
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 his-
tory, 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 seir-
itsu 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 cor-
porate 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 naimu-
shò 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).
the early years: 1868‒1899 351
military” ( fukoku kyòhei ). Even at that time Japan had a wide vari-
ety 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 commercial and corporate law
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.
the early years: 1868‒1899 353
90
Id. at 79; Itò, supra note 83, at 211.
91
Fukushima, supra note 40, at 180.
92
Saegusa, supra note 77, at 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).
354 commercial and corporate law
reason for the delay may have been the reluctance of the govern-
ment 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 delib-
eration, 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 dri-
ven 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.
96
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.
the early years: 1868‒1899 355
97
See infra at c).
98
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 com-
merce 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 prin-
ciples that are respected as the common and generally accepted fundamentals of
trade among civilized nations.” ] (id. at I).
356 commercial and corporate law
102
Cf. Schenk, supra note 83, at 105.
103
Roesler, supra note 85, at 196–197.
the early years: 1868‒1899 357
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 commercial and corporate law
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).
the early years: 1868‒1899 359
113
Cf. Miwa, supra note 106, at 157; Takamura, supra note 53, at 177; Saegusa,
supra note 77, at 132.
114
Fukushima, supra note 40, at 192.
115
Id. at 192–193.
116
It was established under the Imperial Ordinance No. 11 of 1893, Hòten chòsa-
kai kisoku [Regulation of the Investigation Committee for the Codes]; Shida, supra
note 77, at 86; Saegusa, supra note 77, at 127.
360 commercial and corporate law
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).
the early years: 1868‒1899 361
Civil Code shall be applied. It was thus made clear that in com-
mercial 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 Kyù-
shòhò 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 reg-
istration 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 cor-
porations and limited partnerships or general partnerships respec-
tively 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 sys-
tem 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 cor-
poration (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 view-
point, 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
Saegusa, supra note 77, at 131.
122
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.
362 commercial and corporate law
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.
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 mar-
kets 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 war-
fare 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 mod-
ern 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 char-
acterized 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—includ-
ing 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 reper-
cussions of the Great Depression of 1929 and a strict deflationary
126
Cf. Hirschmeier & Yui, supra note 9, at 147.
127
Cf. Hirschmeier & Yui, supra note 9, at 148.
128
Hirschmeier & Yui, supra note 9, at 146.
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).
364 commercial and corporate law
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 poli-
cies 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. Government-
encouraged and legally aided cartels were formed in most industries
in an attempt to deal with the economic slump.130 The governmen-
tal 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 pro-
mote 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.
rise and fall: 1900 ‒1945 365
137
Cf. Nakamura, supra note 129, at 473.
138
Cf. Nakamura, supra note 23, at 51.
139
Cf. Nakamura, supra note 129, at 492.
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
Cf. Nakamura, supra note 23, at 45.
366 commercial and corporate law
142
Cf. Nakamura, supra note 129, at 421, 428 et seq.
143
Cf. Nakamura, supra note 129, at 423.
144
For a comparative overview of the development of the different forms of enter-
prise 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
Cf. Hirschmeier & Yui, supra note 9, at 152.
rise and fall: 1900 ‒1945 367
147
Cf. Hirschmeier & Yui, supra note 9, at 153 et seq.
148
Cf. Hirschmeier & Yui, supra note 9, at 154.
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 pas-
sages 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.
368 commercial and corporate law
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 con-
trolled 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 grant-
ing of monopolies. Thus they were able to make huge profits and
to amass enormous wealth. On the other hand, these rapidly diver-
sifying companies were the driving force behind Japan’s industrial-
ization. In the 1870s and 1880s, the accumulated wealth enabled
the family businesses to start diversifying their enterprises, thus lay-
ing the foundation for the transformation into what later was called
zaibatsu, which literally means “financial group”. This trend was accel-
erated in the 1880s by the purchase on easy conditions of numer-
ous 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 analy-
sis 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.
rise and fall: 1900 ‒1945 369
156
Cf. Morikawa, supra note 149, at 59 et seq.
157
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
Cf. Morikawa, supra note 149, at 123 et seq.
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.
370 commercial and corporate law
was the first to introduce this structural change between 1909 and
1911 after a group of family members and salaried managers con-
ducted 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 lia-
bility 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, compa-
nies 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 trans-
forming 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 trans-
formed 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 promot-
ers and directors had to be made shareholders of the stock corpo-
rations 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 trans-
formed 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
Cf. Morikawa, supra note 149, at 183.
163
Cf. id., at 183.
164
Cf. Suzuki, supra note 153, at 51 et seq.
rise and fall: 1900 ‒1945 371
appears to have been less a strict directing from above than a kind
of informal policy coordination between itself and the major sub-
sidiaries. 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 direc-
tors ( 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 mem-
bers and part-time directors represented the various families.166 It
could be said that there was a kind of fusion between the manag-
ing and the controlling functions. The separation between owner-
ship and control was not as clearly developed as in some Western
companies: the side of the owners was present in the form of fam-
ily members on the board, especially the president, although the
employed—and highly paid—senior executive director (senmu torishi-
mari-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 com-
paratively 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 gen-
eral, the power of the zaibatsu grew significantly during these trou-
bled times. However, even some of the big zaibatsu, e.g., Kuhara or
165
Cf. Morikawa, supra note 149, at 213 et seq.
166
Cf. Morikawa, supra note 149, at 185.
167
Cf. Hirschmeier & Yui, supra note 9, at 188 et seq.
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.
372 commercial and corporate law
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 polit-
ical activists on the left as well as on the right. The excessive eco-
nomic 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 compa-
nies 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 cooper-
ation 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 keep-
ing control via a system of holding companies. Protection by the
military further helped. The partly sought-after, partly rather reluc-
tantly 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 dis-
solution under the Allied occupation after World War II, as will be
described later.172
169
Cf. Masaki, supra note 157, at 49 et seq.
170
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.
rise and fall: 1900 ‒1945 373
173
See supra II.2.c.
174
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.
374 commercial and corporate law
under Art. 190 of the Shòhò of 1899, a stock corporation had to pre-
pare a balance sheet every year. However, the methods for evalu-
ating 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 pur-
chase 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 increas-
ing loss of confidence of the investing public in the stock corpora-
tion in general.
The 1911 amendments, therefore, introduced a strict personal lia-
bility 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 fur-
ther 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
Sugawara, supra note 117, at 19.
178
Art. 164 II Shòhò with reference to Art. 644 Civil Code.
179
Art. 177 Shòhò —the pertinent provision of the present Shòhò is Art. 266.
180
See supra at No. II.2.c).
rise and fall: 1900 ‒1945 375
181
Art. 170 Shòhò.
182
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 Shòwa-
Period], 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).
376 commercial and corporate law
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 meet-
ing. 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 broad-
ening 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 amend-
ment 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.
187
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).
rise and fall: 1900 ‒1945 377
189
See Vogt, supra note 183, at IV.
190
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).
378 commercial and corporate law
192
Sakamaki, supra note 191, at 235 et seq.
193
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 kaisha-
hò 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).
rise and fall: 1900 ‒1945 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 bank-
ruptcy 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
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 commercial and corporate law
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
In only three decades Japan achieved its rise from a country dev-
astated 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 restruc-
turing 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.).
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 commercial and corporate law
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), var-
ious 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
Hirschmeier & Yui, supra note 9, at 228.
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, hachi-
kan, Kòdo seichò [The History of the Japanese Economy, Vol. 8, The High Growth
Period], at 22 et seq. (1989).
reconstruction and economic miracle (1946‒1980s) 383
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 occu-
pation 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.
215
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).
384 commercial and corporate law
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 [Anti-
Monopoly], at 93–95 (1982).
223
See supra III.1.c).
224
Miyajima, supra note 221, at 363, 365.
reconstruction and economic miracle (1946‒1980s) 385
225
Cf. Hadley, supra note 221, at 69–73.
226
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).
386 commercial and corporate law
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 sub-
ject 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 short-
lived 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 occu-
pation in 1952, the number of shareholders had increased to 7 mil-
lion 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).
reconstruction and economic miracle (1946‒1980s) 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 enter-
prise 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 pol-
icy change.240 The change can be illustrated by the following table:
238
Rounded figures, cf. Adams & Hoshi, supra note 219, at 26.
239
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 shù-
dan 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).
388 commercial and corporate law
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.
244
This section is based on the analysis in: H. Baum, Marktzugang und Unter-
nehmenserwerb 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.
reconstruction and economic miracle (1946‒1980s) 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 pub-
lic 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 share-
holding (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 hos-
tile 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 dis-
tributors, 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 sharehold-
ing had been liberalized again.254 However, the new groups have a
250
Cf. Baum, supra note 244, at 60 with further references.
251
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.
390 commercial and corporate law
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 com-
panies belonged to one of the six horizontal keiretsu.257 Quite con-
trary 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 sell-
out of domestic industries to foreign firms. Therefore it resold shares
it had acquired during the securities crisis of the early sixties to des-
ignated Japanese companies, thus enhancing the cross-shareholding
pattern.259 As a result, there is no external market for corporate con-
trol by takeovers in Japan, and internal owner control over man-
agement is also (arguably) not intensely exercised because friendly
shareholders are typically passive owners. Within the web of cross-
shareholdings, 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, Holding-
Gesellschaften 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
Cf. Baum, supra note 244, at 67–68 with further references.
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
Cf. Baum, supra note 244, at 71–73 with further references.
reconstruction and economic miracle (1946‒1980s) 391
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 reg-
ulatory 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 lit-
erature 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 commercial and corporate law
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.
reconstruction and economic miracle (1946‒1980s) 393
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 japani-
sche 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 commercial and corporate law
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.
reconstruction and economic miracle (1946‒1980s) 395
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 Betriebswirtschaft-
Ergänzungsheft 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 commercial and corporate law
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 corpo-
rate 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 intro-
duced 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 incum-
bent 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 activ-
ities 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, Kaisha-
hò [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.
reconstruction and economic miracle (1946‒1980s) 397
291
Cf. Smith, supra note 287, at 116.
292
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).
398 commercial and corporate law
298
A good description can be found in R. Miyawaki, Sòkaiya (Unternehmenser-
presser) [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
The story told so far has been one of tremendous success. Under
difficult circumstances, Japan has managed more than once in a sur-
prisingly 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., invest-
ment 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
308
Nakatani, supra note 262, at 399.
309
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,
crisis of the 1990s — some afterthoughts 401
Appendix
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 so-
called “sleeping corporations”. Furthermore, there have been changes in the method of count-
ing, 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
Christopher Heath
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:
404 intellectual property and anti-trust
1
R. Tsunoda (ed.), Sources of the Japanese Tradition, New York 1960, 319.
2
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.
inventive activity, intellectual property 405
5
P. Varley, Japanese Culture 162 [1973].
6
S. Ladas (1930), 74.
7
U.S. Department of Commerce, Patent Office, The Story of the United States
Patent Office 20 [1972].
406 intellectual property and anti-trust
8
G. Rahn, Das Japanische am japanischen UWG, GRUR Int. 1992, 362.
9
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.
inventive activity, intellectual property 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 concern-
ing intellectual property rights. The foremost among these institu-
tions is the venerable Institute of Invention and Innovation (Hatsumei
Kyòkai) which was founded in 1904 and which promotes both inno-
vation 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 estab-
lished 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).
13
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.
408 intellectual property and anti-trust
3. Legal Instruments
16
Benrishikai (1982), 14.
17
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).
inventive activity, intellectual property 409
4. International Agreements
20
Act for the Promotion of Use of University Inventions by Private Enterprise,
Law No. 52/1998 as of 6 May.
412 intellectual property and anti-trust
21
211 Tokugikon 6.
inventive activity, intellectual property 413
22
Law No. 122/2002 of 4 December 2002, in force since 1 March 2003.
414 intellectual property and anti-trust
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 remu-
neration 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.
inventive activity, intellectual property 415
6. Statistics
table (cont.)
table (cont.)
* 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 member-
ship became disbarred.
Source: Benrishi seido 100 nen shi bessatsu 256–259
1884 883 –
1885 425 99 1,296 949
1886 1,384 205 607 508
1887 906 109 716 361
1888 778 183 568 436
1889 1,064 209 176 22 1,029 664
1890 1,180 240 497 82 819 583
1891 1,288 367 290 117 798 554
1892 1,344 379 262 48 1,046 588
1893 1,337 318 250 59 1,143 648
1894 1,250 326 236 64 1,350 877
1895 1,122 228 318 94 1,373 923
1896 1,213 169 300 96 1,578 858
317 (–)
1897 1,542 188 320 60 3,228 2,335
60 (–) 12 1 1,639 (–)
418 intellectual property and anti-trust
table (cont.)
Year Patents Utility Models Designs Trade Marks
applications grants applications grants applications grants applications grants
table (cont.)
Year Patents Utility Models Designs Trade Marks
applications grants applications grants applications grants applications grants
table (cont.)
Year Patents Utility Models Designs Trade Marks
applications grants applications grants applications grants applications grants
table (cont.)
Year Patents Utility Models Designs Trade Marks
applications grants applications grants applications grants applications grants
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 ken-
shùchò (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
Christopher Heath
1
Senbai ryaku kisoku, Ordinance No. 175 of 7 April 1871.
424 intellectual property and anti-trust
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
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
Reprinted in German in Gareis/Werner (1884), 124.
4
Reprinted in German in Gareis/Werner (1895), 119.
426 intellectual property and anti-trust
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
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 pro-
vided 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 intellectual property and anti-trust
Not least the enactment of the Utility Model 1905 made a general
overhaul of the industrial property laws desirable. The specific fea-
tures of the Patent Act 1909 (as of 2 April 1909) were as follows:
(1) Patents were granted for commercial inventions or improve-
ments thereof.
(2) New provisions on inventions made in the course of employ-
ment. 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
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 inven-
tors 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 co-
inventors initially have filed the patent jointly.
13
Imperial Supreme Court, Minshù 1910, 342.
14
Patent Appeal Decisions 1921, 1633.
15
Patent Appeal Decisions 1917, 1059.
16
Patent Appeal Decisions 1919, 1567.
17
Patent Appeal Decisions 1912, 244.
18
Patent Appeal Decisions 1922, 1884.
430 intellectual property and anti-trust
19
Patent Appeal Decisions 1916, 768.
20
Imperial Supreme Court, Minshù 1919, 788.
21
Imperial Supreme Court, Minshù 1910, 217.
22
Imperial Supreme Court, Minshù 1916, 167.
23
Imperial Supreme Court, Minshù 1918, 1029.
24
Imperial Supreme Court, Minshù 1920, 805.
25
Imperial Supreme Court, Minshù 1918, 459.
26
Patent Appeal Decisions 1913, 2509.
27
Patent Appeal Decisions 1920, 859.
28
Patent Appeal Decisions 1923, 859.
29
Imperial Supreme Court, Minshù 1914, 12.
30
Imperial Supreme Court, Minshù 1922, 178.
31
As above, Imperial Supreme Court, Minshù 1922, 178.
32
Imperial Supreme Court, 5 November 1912, mentioned in Kiyose (1922), 451.
33
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 indus-
trial property was revised in 1921. The new Patent Act (Act. No.
96 of 29 April 1921, in force since 11 January 1922) had the fol-
lowing 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 non-
exclusive 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 intellectual property and anti-trust
(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 rea-
sonable 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 depen-
dent 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 oppo-
nent 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 regard-
ing 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 sus-
pended 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
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 com-
parable scope of protection, TI needed to select one claim for the original Japanese
application and file divisional applications for remaining claims. TI’s patent prose-
cution was extensively delayed because the Japanese Patent Office refused to exam-
ine 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 applica-
tions 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 intellectual property and anti-trust
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 impor-
tant 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 coun-
tries 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 citi-
zens (including Austrians). The latter agreements were signed in 1953/1954.
patent law 435
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 intellectual property and anti-trust
(3) That it is allowed for two or more inventions closely related with
each other or one another to be capable of obtaining patent on the
strength of one application (Article 38).
In an attempt to amend the provisions of Article 7 of the existing
law which provide that two or more inventions such as the original
invention and its partly improved invention or the method of manu-
facture and its equipment, etc. require two or more applications in
order to protect such inventions to a satisfactory extent, one applica-
tion is enough to cover patents on the whole. In the wake of this
amendment, an applicant will become free from troubles and economic
burden he is supposed to take on him otherwise for separate applica-
tions for two or more inventions that are commonly based on the
inventive conception of a fundamental nature. In working a patented
invention, third parties might benefit in dealing in patent rights and
in investigating of the earlier patents, if two or more inventions relat-
ing to the patented invention would be included in single patent.
(4) That the effect of a patent does extend only to acts on business
(Article 68).
In the existing law (Article 35 par. 1), the effect of a patent extends
to an act as done in, for instance, a home in using the articles in
respect of a patent. However amendment is being proposed on the
ground that the existing effect is going to extremes too much, and
intends to limit the effect of a patent to an act as business.
(5) That a trial for determination of the limits of a patent right is
repealed, and instead, a trial for interpretation is to be inaugurated
(Article 71).
There have been disputes over whether the courts are bound by a
judgement in a trial of the trial for determination instituted by the
Patent Office in forming a judgement on a preconsideration in the
case of proceedings of infringement. The amendment draft clarifies
that a judgment passed by the Patent Office has no legal binding
power at all and is nothing more than an opinion of reference of a
governmental agency which has granted a patent in the eye of the
law, clearing of the indistinctiveness in the legal nature of a judge-
ment in a trial of the trial for determination.
(6) That even a person other than the Government is to be enabled
to work a patented invention of another person, if necessary, in the
public interest (Article 93).
Article 40 of the existing Law provides that the Government may
cancel, restrict a patent of a person, or expropriate his patent right or
work his patent right if necessary in the public interest, whereas the
proposed draft makes it possible for even a person engaged in a busi-
ness other than the Government to work a patented invention of
another person at the person’s request, if such request is considered
justifiable. Meanwhile, the provisions of expropriation, etc. of a patent
right is repealed in the bill.
(7) That the period of duration is proposed to be fifteen years from
438 intellectual property and anti-trust
(35,400 yen). However, as it is not fair to raise the patent fees by three
times at one bound from the point of approximately redoubling the
current level.
Supposing that the fees are to be increased twice the present level
as blueprints, it is not conceivable that the economic burden of a
patentee would become too heavy. Further the proposed fees are still
below the levels now prevailing in foreign countries, and, on balance,
there might arise trifle, if any, complaints of the new charges.
(10) That the system of the period of duration is to be repealed.
The existing Law (Article 43 par. 5 and Article 1 of the Patent Law
Enforcement Order) provides that the ‘period of duration of a patent
may be extended for a period from three years to ten years as pro-
vided for by Cabinet Order. The prerequisites to the extension are
the importance of an invention and the incapability of having derived
a reasonable amount of profits from an invention. However, it is impres-
sively difficult to acknowledge whether a reasonable amount of profits
have been derived or not, and as for the importance of an invention,
third parties strongly expect the period of duration to terminate after
the lapse of fifteen years depending upon the wright in importance,
and therefore the extension of the period of duration poses greater
problems. Such being the case, the draft proposes to eliminate the sys-
tem of the extension.
(11) That the period of exclusion with respect to the demand for a
trial for the invalidity is proposed to be repealed in most measure
(Article 124).
Article 85 provides that no trial for invalidity of a patent may be
demanded after the lapse of five years (the period of exclusion) from
the day on which the patent has been registered from the standpoint
of stabilization of patent right. On the other hand, however, there are
examples drawn in which by making a bad use of such provisions,
without putting to work an invention of a patent which is to become
from the outset (such as having obtained a patent therefore by steal-
ing the invention of another person), the invention has been worked
publicly only after the lapse of the period of exclusion when there was
no apprehension of being invalidated. In order to eliminate such evil
practices, the system of the period of exclusion is being proposed to
be repealed in principle, with the exception of the case in which a
trial of invalidity is demanded on the ground that a description is
made in a printed publication in a foreign country as stated in (1)
above, otherwise, a patent right might become unstable all the more.
(12) That the class of trial is to be made a single one.
According to the existing law (Article 109 and following), there are
established two classes of trial in the trial mechanism in the Patent
Office; namely, a trial and an appeal trial. In the amendment draft,
there two are turned into a single trial system. Generally speaking,
there are two requirements for proceeding of a trial; one is strictness
and discretion and the other promptness. With the latter (the prompt
440 intellectual property and anti-trust
47
(Without author), The New Industrial Property Code Series of Japan: Vol. I—
Patent Law, Tokyo 1959, 159–165.
patent law 441
(9) Revisions of 1999 and 2001 (Laws No. 41, 43, 51, 160 and
220 of 1999, Law No. 97 of 2001) concern a strengthening of the
enforcement system: In cases of infringement, a patentee could now
receive a “licensing fee” instead of an “ordinary licensing fee”, which
led to higher amounts.48 Further, calculation of the patentee’s dam-
ages could now be undertaken by the formula of multiplying the
infringer’s sales with the profit the patentee would have realised had
he sold such numbers. The court was also given more discretionary
powers in inspecting documents from the other side;
(10) Finally, in an amendment of 2002 (as of 17 April 2002), com-
puter programs were confirmed as being protectable as products and
Internet publications were explicitly mentioned as novelty-destroying
(Laws Nos. 24, 100 of 2002).
Future amendments are planned for merging the post-grant opposi-
tion system with the requests for revocation.
8. Current Literature
Literature:
(unless contained in the general list of literature or under I. above)
(without author), The New Industrial Property Code Series of Japan,
volume I—Patent Law, Tokyo 1959; Kiyose, Tokkyo hò genri (Outline
of Patent Law), 4th ed. Tokyo 1936; Kògyò shoyùken kenkyùjò, Official
Gazette ni miru sembai tokkyo jòrei (The Official U.S. Gazette on
48
E.g., Tokyo District Court, 30 March 1998, 1656 Hanrei Jihò 143: 7% in a
patent infringement case.
442 intellectual property and anti-trust
Christopher Heath
From its inception, Japanese patent law was based on the principle
that in order to maintain and promote progress, patentable inven-
tions should be novel worldwide. The Japanese government wanted
to make sure that nothing could be domestically protected that had
merely been copied from existing technology abroad. After Japan’s
accession to the Paris Convention, however, it became evident that
the main users of the patent system were foreigners capable of ground-
breaking inventions. Japanese inventive activity was then confined to
minor improvements for which patent protection was not available.
Yet the lack of protection encouraged competitors to imitate any
such improvements, often resulting in products of shoddy quality.
The high prestige that Germany enjoyed at the end of the 19th
century facilitated the spread of German legislative ideas in Japan.
Germany had enacted a utility model system in 1891. It had become
necessary to provide protection for small-scale innovations after the
German Supreme Commercial Court (Reichsoberhandelsgericht)
decided on 3 September 1878 that utility models could not be pro-
tected as designs. Designs were meant to please aesthetically, while
utility models protected technical improvements. Just as the utility
model system in Germany served small and medium sized enter-
prises, it could also serve a Japanese industry which was not yet
capable of developing fully-fledged inventions which could be patented.
While there was little opposition to the introduction of the utility
model system, there was also little understanding of the exact definition
of a utility model,1 particularly the scope of objects to be protected.
While the original German Utility Model Act limited protection to
“working tools” (Arbeitsgerätschaften), there was no equivalent limita-
tion to be found in Japanese law.
1
M. Ando (1983), 540/541: Parliament apparently viewed the new right as a
“technical [patent] design right, . . . a visible invention”.
444 intellectual property and anti-trust
The main features of the first Japanese Utility Model Act ( jitsuyò
shin’an hò) were the following:
(1) A right could be obtained for “useful developments concern-
ing the shape, arrangement or concept of a commercial object”.
(2) In contrast to the provisions of patent law, the novelty require-
ment only extended to novelty within Japan.
(3) In contrast to the provisions of the Patent Act then in force,
the utility model system was based on the first-to-file principle.
(4) The period of protection was six years, consisting of an initial
period of three years, with a possibility of extension for a further
three years.
(5) Utility model protection could also be obtained by foreigners
who were nationals of a country subscribing to the Paris Convention.
(6) If certain conditions were met, an invention could be regis-
tered both as a patent and as a utility model.
(7) Just as in the case of patents, utility models were subject to
substantive examination before grant.
The Japanese Utility Model Act differed from its German counter-
part in that Germany had opted for a registration system without
prior examination. The right was granted for a total period of eight
years. Initially, since the German Utility Model Act of 1891 only
gave protection to improvements in “working tools”, the Japanese
law was interpreted in the same way, although the text of the law
gave no basis for such a narrow interpretation.3 Nonetheless, the Act
satisfied domestic needs for low-level protection without clogging the
patent register with applications for minor improvements. Thus tough
standards for the examination of patents could be maintained with-
out discouraging domestic industry, and Japan could counter the
inflow of foreign patents (then about one-third of all patents granted)
by a protection system specifically designed for domestic industry.
2
Jitsuyò shin’anhò as of 15 March 1905, Law No. 21.
3
N. Monya (1973), 168.
utility model law 445
4
Law No. 26/1909.
5
Law No. 32/1916.
6
Law No. 97/1921.
446 intellectual property and anti-trust
the word “kata” (form, type) was added to Sec. 1 of the Utility Model
Act. Again, legislation was aimed at avoiding the misconception that
utility models were inferior patents and clarified that utility model
protection was limited to the form, construction or layout of arti-
cles.7 Thus while Japanese utility model law moved closer to its
German counterpart,8 in subsequent decisions under the new Utility
Model Act, the discussion concerning the nature of utility models
continued.9
The main features of the Utility Model Act 1921 were as follows:
(1) Protection could be sought for “new types of practical utility
in the form, construction or composition of articles devised for indus-
trial use”.
(2) Novelty was limited to domestic novelty, as in the previous
Utility Model Acts.
(3) Rejected applications for patents or registered designs could be
converted within 30 days into ones for utility models of rejection.
(4) Utility models improving patents or designs with an earlier
filing date could be treated as dependent inventions, to be used only
with the consent of the owner of such previous right.
(5) The protection period for utility models would last 10 years
from the registration (not application) date.
(6) There were no specific provisions for the civil enforcement of
utility models, only provisions related to criminal fines in case of
contravention.
Some minor changes of the Utility Model Act were subsequently
made,10 most of them concerning changes in the fee structure.
7
B. Jinbo, [1980] Tokkyo to Kigyò, 134.
8
K. Murayama (1912), 245, pointing to German discussions on the object of
protection: The form, or rather the invention as such?; R. Yoshiwara (1928), 6 et
seq. already took the view that ‘form’ could also relate to two-dimensional objects
and seems to favour only a qualitative difference between patents and utility mod-
els, although his arguments seem somewhat convoluted.
9
Not even the old Imperial Supreme Court (Dai shin’in) adopted a consistent
position. In one decision it found that for utility models, infringement should be
determined by comparing form, structure and combination of elements, while in
the case of patents, the technical results should be compared (decision of 14 June
1919 (case no. 821/1918)). A similar view was taken in case no. 554/1932. Another
decision, however, found it necessary to compare the technical results: case no.
159/1929: All decisions reprinted in M. Ando (1983), 550–551.
10
Laws No. 28/1929, No. 5/1938, No. 10/1947, No. 172/1948, No. 103/1949,
No. 10/1951.
utility model law 447
11
Law No. 123/1959, subsequently amended by laws No. 140/1962, No. 148/1964,
No. 61/1965, No. 91/1970, No. 96/1971, No. 46/1975, Nos. 27, 30/1978, No.
45/1981, No. 23/1984, No. 24/1984, No. 41/1985, No. 27/1987, No. 30/1990,
Nos. 26, 89/1993.
12
This is one of the main criticisms voiced by K. Tamai (1995), 66. There has
indeed been a lot of international debate on how far a utility model application
with immediate protection could be used to bridge the gap until a patent has been
issued. See, e.g. R. Krasser, Ein neues Gebrauchsmusterrecht für Deutschland und
Europa, in: Rahn/Scheer, Gewerblicher Rechtsschutz in Deutschland und Japan
102 [1994].
13
In the case of utility models, the reasons for excluding processes were historic,
as the initial emphasis of the system was to protect the form of goods: K. Yoshifuji
(1994), 576. However, it has been held permissible to claim novelty if just the man-
ufacturing process was new: decision by the Tokyo High Court of 31 October 1978,
[1978] Torikeshi Hanreishù 349. Yet it is essential that the process entails a device:
K. Yoshifuji (1994), 589.
448 intellectual property and anti-trust
The main features of the 1959 Utility Model Act were as follows:
(1) Protection could be sought for “innovations relating to the
shape (‘keitai’ ) or construction of articles”;
(2) Novelty remained confined to Japan except for printed publi-
cations;
(3) Rejected patent and registered design applications could still
be converted into applications for utility models within 30 days;
(4) Examination and grant of utility models closely followed the
rules for patent applications.
Some further amendments of utility model legislation were made in
1971 and 1987. On both occasions the changes were in fact changes
in the patent system which also extended to utility models. In 1971
it was decided that all applications had to be open for public inspec-
tion after 18 months from the filing date. As of 1987 it became pos-
sible to file more than one independent claim per utility model
application on condition that the unity of invention was maintained.
For a number of reasons, in 1994 the utility model system (and this
time, only the utility model system) was again altered. By the late
1980s, the number of patent applications had exceeded that of util-
ity model applications. In addition, there had been complaints from
abroad that the process of substantive examination for utility mod-
els was too slow in Japan and that international developments would
favour granting utility models as unexamined rights. Out of all this,
Japan drew some sanguine conclusions. First, it decided that on the
whole utility models were not as important to domestic industry as
they had been. Second, in order to appease international criticism,
it was decided that utility models should be granted as unexamined
rights and utility examiners should now work as patent examiners
in order to speed up the process of patent examination. Third, since
unexamined rights were prone to abuse, it was decided that the pro-
tection period should be substantially shortened. It was in fact these
14
Law No. 116/1994, as amended by Law No. 91/1995.
utility model law 449
changes that sounded the death knell of the whole utility model
system.15
The main features of the current utility model system are the
following:
(1) protection for all kinds of inventions, except for processes;
(2) grant of unexamined rights upon registration only;
(3) protection period of six years from the filing date;
(4) compulsory substantive examination of the utility model right
before an infringement action can be raised.
The two drawbacks of the current system are, first, that the value
of utility models with regard to technology transfer is limited because
the rights are unexamined and their substantive validity is thus
unclear; and second, that there is little chance of succeeding in a
claim for injunctive relief within the protection period of six years.
The limited scope of the new system is evidenced by the sub-
stantial drop in application numbers, now running at about 25% of
earlier levels.
7. Statistics
In 1906, the first year in which utility models could be applied for,
the number of applications was 2,011, 985 of which were granted.
In 1910, the corresponding figures were 14,057, and 4,358. Things
had not changed very much by 1920, when 18,543 utility models
were applied for, and 3,584 granted. In 1930, in a significant upward
swing, applications totalled 33,111, and grants 12,060. Applications
went up until 1935, but by 1940 had dropped to 30,105, when
16,535 were granted. After the post-war low, applications rose to
22,426 in 1950, with 6,365 being granted. With the Japanese econ-
omy racing along, 68,102 utility model applications were filed in
1960, and 18,208 were granted. In 1970, the figures had almost
doubled to 124,170 and 29,264 respectively. By 1980, the figures
had increased again to 185,455 applications and 44,600 grants. By
1990, however, the utility model system was past its prime. Applications
peaked at over 200,000 a year in the mid 1980s, but by 1990 they
15
K. Tamai (1992), 66.
450 intellectual property and anti-trust
Literature:
(unless contained in the general list of literature)
M. Ando, Meiji 38nen, 42nen oyobi Taishò 10nenhò ni tsuite no
jitsuyo shinan (Utility Models in 1905, 1909 and 1921), [1983] Tokkyo
Kanri 535; T. Doi, Registration and Protection of Utility Models,
[1995] Patents & Licensing 10, 7; B. Jinbo, Jitsuyo shin’an seido ron
(System of Utility Models), [1980] Tokkyo to Kigyò 2, 2; K. Kobashi,
Jitsuyo shin’anjhò kaisei no eikyò (Influence of the Utility Model
Act’s revision), 16 Kògyò Shoyùken Hògakkai Nenpò 151 [1992];
K. Kumagai, Jitsuyo shin’an seidò no mitoshi ni tsuite (Perspectives
of the Utility Model System), 16 Kògyò Shoyùken Hògakkai Nenpò
135 [1992]; N. Monya, Zur Rezeption des deutschen Gebrauchsmus-
terschutzes in Japan, in: Mitarbeiterfestschrift zum 70. Geburtstag
utility model law 451
Peter Ganea
1. Traditional Japanese Handicraft After the Meiji Era and the First
Attempts at Design Protection
1
Reported by participants of the so-called “Iwakura Mission” of the years
1872/1873, a world tour of government members who visited Vienna to attend the
world exhibition—see Tokkyo Chò (1985), I, 29.
design law 453
In the 1880s, design protection existed only in draft form, but the
flooding of the market with inferior articles and counterfeit goods
was an incentive for lawmakers to arrive at a final legal solution. As
a preliminary solution, some of the newly established unions of indus-
trial businesses have committed themselves to maintain certain qual-
ity standards, but such voluntary activities could not replace a
nationwide design law.3 On 2 December 1887, a first draft of the
coming ordinance was drawn up by the Ministry for Agriculture and
Trade: It contained the first-to-file principle, an examination as to
novelty and a classification of articles that came into question for
design protection. The design owner was obliged to mark the existence
2
Details on the drafts in Tokkyo Chò (1985), I, 46–48.
3
Tokkyo Chò (1985), I, 79.
454 intellectual property and anti-trust
4
In the definition of the protected design as a “new design with regard to form,
pattern or colour to be used on an industrial product”, the term “used” was replaced
by the term “applied”.
5
Legislative preparations summarised in Tokkyo Chò (1985), I, 78–85.
design law 455
the prior applicant shall have the right to register. Another pecu-
liarity of this early regulation was design protection for typefaces.6
In 1891, an amendment clarified that designs not only identical
with but also similar to publicly known aesthetic solutions were
excluded from registration, and thereby eliminated the above-men-
tioned contradiction. Furthermore the scope of non-protectable sub-
ject-matter was clearly confined to designs identical with or similar
to the imperial emblem, designs incorporated in other than indus-
trially applicable articles or in articles not listed in the product
classification, to designs which were not predominantly related to the
form, pattern or colour of an article and to designs which consti-
tuted a mere product mark.
In the following years, textiles accounted for the majority of design
registrations.7 In general, however, Japanese manufacturers made lit-
tle use of the new, yet unfamiliar instrument of legal design pro-
tection,8 so that it is hard to determine to what extent the availability
of design protection actually contributed to the worldwide success
story of Japanese design at the turn of the century.
3. Japan’s Accession to the Paris Convention, the Design Act of 1899 and
Its Subsequent Amendments
6
R. Ushiki (1994), 428 et seq., presents two typeface designs registered on 26
June 1899.
7
Forty-three of the first 100 design applications were filed by the textile industry—
see Tokkyo Chò (1985), I, 125.
8
Ibid.
456 intellectual property and anti-trust
9
See the chapter on “Copyright”, subchapter 1.
10
Summarized in Tokkyo Chò (1985), I, 196 et seq.
design law 457
11
More details in Tokkyo Chò (1985), I, 319–323.
458 intellectual property and anti-trust
b) The Amendment of 1921 and the Development Before and After the War
Due to the intense international competition during the worldwide
economic crisis after the First World War, the design provisions were
once more adapted to the realities of large-scale industrial produc-
tion in 1921. The second amendment of 30 April 1921 (Law No.
98) clarified that only “industrial creations related to articles . . .”
(buhin ni kan suru . . . kògyòteki kòan), i.e. creations indissolubly tied with
a concrete article, were the subject matter of design protection. The
preceding provision in Sec. 1, according to which “designs . . . applied
to articles” (buhin ni junyò suru . . . ishò ) misleadingly implied that a
design might be an abstract creation that existed independently from
the article.12 By this amendment which clearly restricted protection
to designs incorporated in three-dimensional articles, design regis-
tration of typefaces were rendered impossible. An addition was made
to Sec. 8(3), according to which not only identical or similar utility
models, but also identical or similar trade marks of an earlier appli-
cation were regarded as limitations to the design right. The amended
Sec. 13 enabled the design owner to request a compulsory licence
in cases where the exploitation of his own design was dependent on
the simultaneous exploitation of a prior right (utility model or design
right), whose owner refused to license it without just cause. Another
important amendment was the shift of the initial right ownership in
service creations from the employer to the employee (Sec. 2). Further
amendments were related to administrative procedures. The re-exam-
ination system was replaced by a notification and response system
in which the examiner was obliged to inform the applicant of the
reasons for rejection and give him the opportunity to respond within
a certain period. If the rejection was upheld, dissatisfied applicants
were permitted to request a review before the “shipankan” review
authority (Sec. 24).13
In the following years, copyright protection of designs as “works
of applied art” was intensely discussed on the international stage. At
the Rome Conference on the amendment of the Berne Convention
(1928), Japan was allied with Italy in strictly opposing such protec-
tion. Even as an industrial nation, Japan showed little interest in a
12
R. Saitò (1991), 12.
13
Amendments summarised in Tokkyo Chò (1985), I, 435.
design law 459
14
A critical statement of the national Designer’s Association of 1936 explained
the strong opposition against copyright protection with Japan’s 50-year history of
counterfeiting intellectual achievements from abroad (cited in Tokkyo Chò (1985), I,
438).
15
By Supreme Commander for the Allied Powers Instructions (SCAPIN) No.
5981 (1948) and No. 1990 (1949) summarised in Tokkyo Chò (1985), II, 20, 12
et seq.
16
Tokkyo Chò (1985), II, 215 et seq.
17
Law No. 125/1959.
460 intellectual property and anti-trust
18
The product classification was regulated in Rule 10 of the Implementing Rules
to the Design Law, enacted on 29 April 1921 by the Ministry for Agriculture and
Trade (Ordinance No. 35).
design law 461
c) The New Copyright Act of 1970 and Its Impact on Design Protection
From the very beginning of design protection, Japan has abided by
the “patent approach” which requires designs to be objectively novel
in comparison with the prior art. The alternative approach, adopted
by most European countries, would be the so-called “copyright
approach” which requires a design to be of subjective novelty in the
sense that it constitutes an independent creation. Japan has always
been keen on maintaining a strict demarcation line between design
protection for the aesthetic shape and pattern of industrially manu-
factured mass articles and copyright protection for artistic works.
However, design protection was not unaffected by the enactment of
the new Copyright Act in 1970 (see the chapter on Copyright). Due
to the addition of “works of applied art” to the catalogue of pro-
tected works under the Berne Convention, a compromise was finally
reached in Brussels in 1949, Sec. 2(2) of the new Copyright Act pro-
vided that the term “artistic works” includes “works of artistic crafts-
manship” (i.e works of applied art).21 As a consequence, the scope
of protected works was extended to objects of practical use, provided
that they were of artistic quality.22 The original intention of the
19
Tokkyo Chò (1985), II, 303 et seq.
20
Tokkyo Chò (1985), II, 477–486.
21
Following a long debate, the Brussels Conference reached a compromise which
left it to the members to introduce a system of cumulative protection under copy-
right and design law or to protect works of applied art solely by design provisions.
To works of applied art originating in countries where only design protection is
available, the principle of reciprocity is applied.
22
Kòbe District Court, Himeji branch, as of 9 July 1979, 11–2 Mutaishù 371.
462 intellectual property and anti-trust
23
5–3 Mutaishù 18—“Hakata Doll”.
24
1418 Hanrei Jihò 120 = 25 IIC 805.
25
Supreme Court decision of 7 September 2000, 1730 Hanrei Jihò 123; the fact
that typefaces remain unprotected does not prejudice copyright protection for cal-
ligraphic creations—Tokyo District Court decision of 27 October 1999, 1701 Hanrei
Jihò 157; Osaka District Court decision of 21 September 1999, 1732 Hanrei Jihò
137.
26
Tokkyo Chò (1985), II, 574.
27
K. Sekiguchi (1998), 10.
28
Law No. 51/1998.
design law 463
29
Criticised by T. Morimoto (2002), 257.
30
T. Doi ( June 1998), 15, with graphic examples.
464 intellectual property and anti-trust
Literature:
T. Doi, Better Design Protection by Registration, (1)–(4), in: Patents
& Licensing June–December 1998; T. Morimoto, Ruiji ishò tòroku
seido no sòsetsu to haishi (Establishment and Abolishment of the
System of Registering Similar Design), in: Chiteki zaisanhò no keifu
(The Pedigree of Intellectual Property Law—Writings in Honour of
31
Tokkyo Chò (2001), 878 et seq.
32
T. Doi (October 1998), 24.
design law 465
Dr. Ono Shoen), Tokyo 2002, 257; H. Onda, Ishòhò kaisei no shingi
ni sanka shite (Participating at the Consultations About the Amendment
of the Design Act, Tokugikon 200 (7/8 1998), 17; R. Saitò, Ishòhò
gaisetsu (Overview of the Design Act), Tokyo 1991; K. Sekiguchi,
Dezain kaihatsu no kasseika wo neratta 40 nen-buri no ishòhò kai-
sei (The First Amendment to the Design Act since 40 years. Aiming
at Reviving the Creation of Designs) Tokugikon 200 (7/8, 1998),
10; T. Takata, Ishò (Designs), Tokyo 1969; Tokkyo Chò (ed.), Kògyò
shòyùken chikujò gaisetsu (Commentary on Industrial Property Law),
16th ed., Tokyo 2001, 871–1072 (Ishòhò—Design Law); R. Ushiki,
Ishòhò no kenkyù (Design Act Studies), 4th ed., Tokyo 1994.
466 intellectual property and anti-trust
Christopher Heath
Even in the days of yore, the use of trade marks was not unknown
in Japan. More common, however, was the use of trade names for
shops, in particular the naming of curtains in front of shops (noren).
Particularly gifted craftsmen would put their names on objects such
as swords or paintings.1 Apart from such artistic niceties, rules on
labelling goods were first introduced in the year 701 by a Law on
Market Regulation. The law also dealt with the proper labelling of
goods with regard to their price and origin. The regime of naming
shops seems to be older than that of marking goods. Subsequently,
certain rules were established on the correct designation of shops as
referring to the goods they sold or rather were licensed to sell. This
only changed when the freedom to conduct business was established
in the Meiji era.
The first Japanese Trade Mark Act was enacted even before the
Senbai Tokkyo Jòrei (Patent Act) in June 1884 and published as the
Dajòkan Decree No. 19. It came into force in October of the same
year.
Already in 1875, the Japanese had consulted the American adviser
G.H.F. Verbeck2 about the English and American trade mark sys-
tems. Indications of measurements and weights for goods by way of
trade marks were of special importance in preventing shoddy pro-
duction.3 Trade marks were viewed as indications of guarantee by
the seller. In 1876, a draft Trade Mark Act was prepared but not
enacted. Another draft of 1878 met the same fate.4
In 1881, Korekiyo Takahashi was asked to study industrial prop-
erty rights abroad. He examined the English, American, French, and
German systems. As a result, the view that trade marks represented
1
M. Isonaga (1986), 1283.
2
A Dutchman who had been engaged in America.
3
S. Ono (1989), 33.
4
Tokkyo Chò (1955), 84.
trade mark law 467
5
Yet, already in 1884, Shirò Ono (Shòhyò jòrei kaisetsu) stated that “trade mark
protection shall be aimed against sly traders and those passing themselves off ”
(quoted in Tokkyo Chò (1955), 97). Y. Fuse (1985), 121, correctly points out the con-
nection between liberalising trade and necessity to distinguish goals from different
sources.
6
H. Nakamura (1984), 39.
7
Apparently, there was some opposition against the registration system, particu-
larly as to costs and formality requirement for protection: Tokkyo Chò (1955), 93.
468 intellectual property and anti-trust
8
Transfer was understood as including both the mark and the business estab-
lishment: Tokkyo Chò (1985) I, 91, 97.
9
While there seems to be no English translation available, a German one can
be found in A. Werner (1896), 126.
trade mark law 469
the Trade Mark Act 1899. It can be viewed as the basis of the cur-
rent trade mark system. Because the Act was conceived together with
the Patent Act, the former could relate to the latter for the proce-
dural provisions of examination, decisions, and appeals. The main
points of the Act were the following:
(1) A trade mark can be obtained for the designation of goods by
persons wanting to use the mark on their goods exclusively. A mark
should be composed of a distinctive10 graphical drawing, writing style
or a combination of both.
(2) The application would now have to be made directly with the
Ministry of Agriculture and Trade, that would forward it to the
Patent Office.
(3) Unregistrable trade marks would be signs offending good morals
and signs which predominantly would consist of a flag or another
domestic or foreign state emblem.
(4) The protection period would be 20 years from the date of reg-
istration.
(5) No cancellation in case of differences between application and
description. The trade mark would be void if it contravened provi-
sions of unregistrable marks or conflicting marks bearing the same
application date.
(6) In cases of an identical application date, should one of the
applicants withdraw his application, the remaining one could then
proceed.
(7) New regulations would be included on inheriting trade marks.
(8) A transfer could only be effected upon transferring the busi-
ness as well. While registration of transfer was no longer necessary,
registration remained a prerequisite for the right to be enforced
against third parties.11
(9) Subsequently changing the designation of goods was no longer
possible. Other changes could only be effected if the essentials of
registration remained unchanged.
10
The 1888 Trade Mark Act for the first time contained the requirement of
“distinctiveness”, although already discussed in the preparations for the previous
Act: Tokkyo Chò (1985), 93.
11
Apparently taking up the British idea that a mark representing goodwill could
not be transferred in isolation from such goodwill. This was so understood even for
the first Trade Mark Act 1885: Tokkyo Chò (1955), 91.
470 intellectual property and anti-trust
12
Ministry of Agriculture and Trade, Ordinance No. 19/1892.
13
H. Nakamura (1984) regards this as only a legal fiction, because both judges
and examiners under normal circumstances were quite aware where such goods
would be sold, and decided accordingly.
14
Reichsgesetzblatt 1896, 722.
15
Parliamentary debates as reprinted in: Tokkyo Chò (1955), 95/96.
trade mark law 471
16
All reprinted in: Tokkyo Chò (1955), 134–140.
17
German translation in: A. Osterrieth, III (1901) 167.
472 intellectual property and anti-trust
18
Decision of 6 July 1903, reprinted in Hanrei Hyakusen, 22.
19
Decision of 26 September 1907, reprinted in Hanrei Hyakusen, 14.
20
Decisions of 22 September 1908 and 12 March 1909, both mentioned in
S. Ono (1989), 182.
21
The German translation by L. Lönholm (1909), 35. English comment by De
Becker (1916).
474 intellectual property and anti-trust
22
Colours as such were not held protectable, however: Imperial Supreme Court
Decisions 1914, 488.
23
DeBecker (1916), interprets this to include also parts of a (living) person’s
name, yet this interpretation finds little justification in subsequent decisions: S. Ono
(1994), 163. Consent was not deemed necessary where there was no danger of con-
fusion: Imperial Supreme Court Decisions 1915, 597.
trade mark law 475
24
Imperial Supreme Court Decisions 1922, 1144. The Patent Office and the
Appeal Division had decided differently: Patent Office Decisions 1920, 3545; Patent
Appeal Decisions 1921, 2124—“Hoka”.
25
Imperial Supreme Court Decisions 1912, 212.
26
Imperial Supreme Court Decisions 1910, 372.
27
Patent Office Decisions 1921, 4303: Here, one applicant had registered a pic-
ture of the Greek philosopher “Plato”, while a subsequent applicant wanted to reg-
ister the word mark “Plato”. The marks were deemed similar.
28
Imperial Supreme Court Decisions 1913, 502: Reference has to be made to
the usage by the general public.
29
H. Iizuka (1926), 81.
30
This was interpreted as a compulsory rule: Patent Office Appeal Decisions
1923, 4763.
476 intellectual property and anti-trust
31
See, e.g. Patent Appeal Decisions 1922, 2748—“Chujoto”. Here, the Patent
Office rejected registration of a word mark in Class 43 (cakes) due to a potential
conflict with the well-known medicine registered for Class 1 under the same mark.
This was also occasionally held under the previous trade mark law, e.g. Imperial
Supreme Court Decisions 1918, 854.
32
Lack of distinctiveness, e.g. for a picture of angels for toiletry: Patent Office
Decisions 1911, 2058.
33
But confusion abroad would not be considered: Imperial Supreme Court
Decisions 1912, 920.
34
E.g. the mark “Shirosagijo” (Heron Castle) for cakes after long use: Patent
Office Decisions 1913, 2630; also Patent Office Appeal Decisions 1920, 2003.
trade mark law 477
The Trade Mark Act 1921 was frequently amended. Changes were
made in 1929, 1934, 1938, 1947 and twice in 1948.
The changes of 1929, 1947 and 1948 were made in accordance
with changes in the patent law. The changes in 1934 were neces-
sary in order to implement the Hague Revision Conference of the
Paris Convention, while the changes in 1938 concerned the London
Revision Conference that had taken place in 1934.
35
Examples of descriptive marks: Tokyo High Court, 29 January 1991, 1379
Hanrei Jihò 130—“Digestive” (use for cookies); Tokyo High Court, 24 December
1992, 1471 Hanrei Jihò 143—“Jun Shòchù” (“pure liquor” held descriptive of an
alcoholic drink); the objection can be overcome by secondary meaning: Tokyo High
Court, 26 January 1993, 25 Chizaishù 1—“Kawara Soba” (“tile soba” as used for
soba noodles served on tiles); refused were also: Georgia Coffee for coffee products
produced by the Coca Cola Company: Supreme Court, 23 January 1986, 593
Hanrei Times 71; use of Waikiki for Cosmetics: Supreme Court, 10 April 1979,
927 Hanrei Jihò 233; use of Hollywood for cosmetic products: Tokyo High Court,
29 June 1967. Allowed was the registration of the mark “Tivoli”: Kobe District
Court, 27 August 1997, 48 Chizai Kanri 1067. Also indirect geographical indica-
tion are covered by this provision: Japanese Patent Office, 13 October 1991, 24
IIC 409—“Lorely” (when used for Japanese alcoholic drinks).
478 intellectual property and anti-trust
(2) The Act did not distinguish between absolute and relative
grounds for refusal. Any trade mark with an earlier application date
would be checked ex officio and serve as an obstacle to registration
in the same way as marks generally considered unregistrable.36
(3) The scope of a trade mark right could be broadened by reg-
istering associated trade marks similar to the original trade mark,
covering the same goods. An associated trade mark could not be
transferred separately.
(4) A new system was established whereby defensive trade marks
could be registered. Defensive trade marks were those identical to
the original trade mark, but covering different types of goods not
actually in use. Defensive registration was only possible for famous
trade marks.37
(5) One trade mark application could only relate to one group of
goods. There were 34 categories.
(6) Trade marks could be transferred and licensed, while such con-
tracts had to be registered with the Patent Office to be valid against
third parties.38
(7) For the first time, there were provisions explicitly stating the
rights of a trade mark owner in cases of infringement, and an enu-
meration of acts that were deemed infringing. As with patents, there
was a presumption as to the amount of damages.
The most important subsequent changes were the following:
(1) In 1976, in order to clear the register from unused trade marks,
the burden of proof for use and non-use was reversed. Now the
trade mark owner had to prove use in order to avoid cancellation
36
While previously, agreements between an earlier registered mark and a conflicting
application could not be solved by agreement, the matter is still unclear. According
to the Supreme Court, 22 April 1986, 1207 Hanrei Jihò 114—“Juchheim”, agree-
ments with respect to similar registered trade marks are possible: There seems to
be no decision that would affirm this matter for trade mark applications.
37
The system is meant to give enhanced protection to well-known marks, but
has proved clumsy and impractical, as it also requires third parties already using
the mark in relation to other goods or services: Tokyo High Court, 30 January
1996, 1563 Hanrei Jihò 134—“Scotch”.
38
Only registration confers exclusive rights to the licensee, however. Termination
of the licensing agreement does not necessarily give an automatic right to rectification
of the register: Tokyo District Court, 29 June 1994, 230 Hanketsu Sokuhò 6 [1994]—
“Harika”.
trade mark law 479
39
Until 1975, non-use had to be proven by the applicant requesting cancelation,
subsequently by the trade mark owner. The period of three years refers to the reg-
istration of the cancellation demand, while use up to three months prior to the reg-
istration does not count: Sec. 50(3). The courts find token use often sufficient (Tokyo
High Court, 30 November 1987, 1385 Hanrei Jihò 117), and allow proof of use
even if only furnished on appeal before the High Court (Supreme Court, 23 June
1991, 24 IIC 523 [1993]—“Evidence of Trade Mark Use”). The screws may have
been subsequently tightened, however. According to the Tokyo High Court, 30
November 1993, 1588 Hanrei Jihò 144, use in order to prevent cancellation is
insufficient. In addition, use of a mark not identical to the registered one cannot
qualify as use. Here, use of the mark “Vuitton” was not deemed use of the regis-
tered “Louis Vuitton”.
40
The same holds true for acts of misleading use. Current attempts (2003) to
merge opposition and invalidation procedures would henceforth allow anyone to
bring an action for of invalidation.
480 intellectual property and anti-trust
41
The first view is taken by Tokyo District Court, 3 August 1981, 1042 Hanrei
Jihò 155—“Seiko”, the second by Tokyo District Court, 27 October 1966, Fusei
Kyògyòhò Hanreishù 945—“Waikiki Pearl”.
42
Osaka District Court, 9 October 1990, 22–3 Mutaishù 651—“Robinson
Helicopters”.
43
Supreme Court, 11 July 2000, 1721 Hanrei Jihò 141—“L’Air du Temps”: sim-
ilarity judged by the French pronounciation, as the customers of such French per-
fumes were well aware of the French pronounciation.
44
Tokyo District Court, 24 March 1993, 26 IIC 566—“Type Channel No. 5”.
45
Kobe District Court, 21 December 1982, 14–3 Mutaishù 813—“Dorothee Bis”.
trade mark law 481
4. Current Literature
Literature:
(unless contained in the general list of literature or under I. above)
M. Amino, Shòhyò, 2nd ed. Tokyo 1977; idem., Shòyòhò no shomondai,
Tokyo 1978; J.E. DeBecker, Pointers on Japanese Trade Marks,
Yokohama 1916; M. Isonaga, Wagakuni ni okeru shòhyò no kigen
to sono hensen ni kan suru ikkò satsu (Examination of the Origins
and Changes in Trade Mark Law), 36 Tokkyo Kanri 1283 [1986];
S. Kiyose, Eigyòteki hyòshò enkakushi (On the Development of
Business Identifiers), in: Ono- FS (2002), 277; K. Kudo, Genkò
shòhyòhòjò no shomondai no gaikatsu (General Issues of Current
Trade Mark Law), 35 Tokkyo Kenkyù 36 [2003]; H. Nakamura,
Shòhyò tòroku seido sono 100nen no rekishi (100 Years of History
46
Supreme Court, 13 October 1981, 14 IIC 429—“MacDonalds III”: Here, the
plaintiff had registered the mark “Mac” “Burger”, but actually used “MacBurger”.
The same applies if the registered mark is used for other goods or services and
thereby causes confusion: Tokyo High Court, 18 July 1996, 28–3 Chizaishù 668—
“Trappistine”.
47
Supreme Court, 20 June 1990, 25 IIC 118—“Popeye Scarves III”: rights based
on prior copyright.
48
Which is denied in cases where the mark is used as a promotional tool rather
than an indication of origin: Osaka District Court, 24 February 1976, 8–1 Mutaishù
102—“Popeye T-Shirts II”, or as the title of a song: Tokyo District Court, 22
February 1995, GRUR Int. 1995, 607—“Under the Sun”.
49
Osaka District Court, 27 February 1970, 2 IIC 325—“Parker”; Tokyo District
Court, 7 December 1984, 1141 Hanrei Jihò 143—“Lacoste”; Nagoya District Court,
25 March 1988, 1277 Hanrei Jihò 146—“BBS Trade Mark”.
50
Tokyo District Court, 28 January 1980, GRUR Int. 1980, 526—“Sweet Lover”.
482 intellectual property and anti-trust
Christopher Heath
1
See, e.g., F.K. Beier, (1979), 183; J. Kohler (1914), 33.
2
Sumiya/Taira (1979), 56.
3
Only the guilds set their own rules as self-governing bodies: Takekoshi, The
Economic Aspects of the History of the Civilization of Japan, Vol. 3, London 1967,
251.
4
One of the most influential foreign law professors in Japan in the last century
was the Frenchman Boissonade, who had certainly told his very receptive audience
about the development of French unfair competition law from the general clause
in the Code Napoléon.
5
Y. Someno (1959), 19–21.
6
This was due to the relentless push for industrial growth without regard to con-
sumer interests or environmental concerns, but also had something to do with the
fact that no one at ministerial level was actually in charge of consumer protection.
The organisation that came closest to representing consumer interests was the Fair
Trade Commission, established by the U.S. occupation in 1947: H. Iyori (1990),
228 et seq.
484 intellectual property and anti-trust
7
This changed with the Imperial Supreme Court decision of 28 April 1925, 4
Minshù 670—“Daigakuyu”.
8
Decision by the Osaka District Court, 27 February 1970, 2 IIC 325 [1971]—
“Parker”.
9
S. Arima (1924), 508. With some narrow exceptions for cases of an infringe-
ment of personality rights or torts in connection with environmental pollution, this
position is still taken today: see the decision by the Tokyo High Court, 17 December
1991—“Decorative Veneer”, 25 IIC 805 [1994].
10
Before the enactment of the German Civil Code on 1 January 1900, the
German Reichsgericht had to apply the French Civil Code in cases coming from
Baden and Alsace, but unlike the French courts the German ones refused to grant
proper protection against acts of unfair competition: Reichsgericht, decision of 2
July 1886, reprinted in J. Kohler (1914), 55, who remarks: “One is surprised about
such jurisprudence that lacks any deeper understanding of the character of such
legal instrument” (57).
11
G. Rahn (1986), 496; Tokkyò Chò (1955), 105.
unfair competition law 485
12
G. Rahn, (1983), 459 et seq.
13
N. Monya, Zur Rezeption des deutschen Gebrauchsmusterschutzes in Japan,
in: Mitarbeiterschrift für Eugen Ulmer, 1973, 159.
14
Tokkyo Chò (1955), 103.
486 intellectual property and anti-trust
15
Tokkyo Chò (1955), 103, 104.
16
Actes de Washington 53 [1911]; Actes de la Haye 475 [1925].
17
It is interesting to note that some Japanese authors ascribe the base of the
Japanese Unfair Competition Act to the German legislation of 1909: T. Doi (1974),
3. This is certainly not true, because Japanese legislation explicitly rejected a gen-
eral clause. The rudimentary protection under the old German Act of 1896 (and
perhaps the limited understanding that courts gave to its provisions) made this model
much more attractive to the Japanese: S. Arima (1934), 24. However, even the
German Unfair Competition Act of 1894 contained a “minor” general clause against
unfair advertisements (now Sec. 3 German UCA).
18
Recht des Markenschutzes, 1884; also: Gierke, Der Rechtsgrund des Schutzes
gegen den unlauteren Wettbewerb, Zeitschrift für gewerblichen Rechtsschutz IV
[1895], 109.
19
Art. 8 of the 1911 draft: “A person who diffuses or uses a secret used in trade
concerning the forms, samples, production method or other technology shall resti-
tute the damage caused”: reprinted in Tokkyo Kenkyù No. 5, 42.
unfair competition law 487
After World War I, preparations for the Versailles Peace Treaty also
touched upon the question of whether a general duty to join the
Madrid Agreement should be stipulated. Here again, the Japanese
side was dragging its feet: “If all allied nations can agree to this,
Japan can agree as well. But, if so, a provision will need to be added
to protect existing trade customs. Furthermore, a grace period should
be included”.20 At the end of the day, in Japan such a general oblig-
ation was not held to be appropriate.
Finally, the Hague Revision Conference of 1925 agreed that all
member-states of the Paris Convention should enact measures against
unfair competition until the follow-up conference to be held in
London.21 This meant that Japan no longer had any excuse for defer-
ring the enactment of an unfair competition law. Yet, Japan’s hesi-
tation continued. While the first major work on unfair competition
law was published in 1924 22 and another draft of an Unfair
Competition Act was published in 1926 in order to accommodate
the obligations under the Paris Convention, this still failed to muster
enough support in the Diet and was not enacted. Changes were
made in the Commercial Code, however, to protect trade names.
As the follow-up conference in London came closer (it was post-
poned until 1934), the Japanese government had to move fast in
order to fulfil its obligations. In 1934, just before the London
Conference, it enacted an Unfair Competition Act and ratified the
changes agreed at the Hague Conference. To be sure, the Act
was not meant to be applied, but was rather meant to suggest that
the minimal requirements of the Paris Convention had been com-
plied with.23
20
Tokkyo Chò (1955), 104.
21
Although the first pledge to prevent acts of unfair competition was introduced
to the Paris Convention in 1900, only the amendment in 1925 obliged the mem-
ber states to provide for clearly defined measures against clearly defined acts of
unfair competition.
22
S. Arima (1924) had written a remarkable treatise, basically comparing and
evaluating foreign laws against unfair competition.
23
G. Rahn in this connection talks about fuzzy logic: enact a law to avoid for-
eign sanctions, but decline to apply it domestically in order to avoid unwelcome
results at home: 25 IIC 345 [1994].
488 intellectual property and anti-trust
24
J. Toyosaki (1971), 378. Already Y. Someno (1959), 19–21 voiced doubt about
the use of this provision, particularly because foreign brand names and brand goods
were clad with the image of high class also because of the high tax duties levied
on these goods.
25
Decision of the Supreme Court of 18 January 1990, 1990/12 Hatsumei 83—
“Marine Gold”.
26
G. Rahn (1986), 529.
27
Even at the Conference in Washington in 1911, some delegations objected to
unfair competition law 489
Subsequent changes were dictated by the allied (de facto the U.S.)
occupation, which scrapped the requirement that only deliberate
infringement could be prevented and in the San Francisco Peace
Treaty of 1952 obliged Japan to ratify the Madrid Agreement.31
Nevertheless, the Unfair Competition Act was little known and was
seldom invoked.32 The first major work on the Act was published in
1961.33 The only major area of application was the protection of
well-known marks (including service marks) against unauthorised use
for identical or similar goods. Later on, this was extended to dis-
similar goods if the reputation of a well-known indication was at
stake.34 Japanese court decisions have been helpful insofar as they
have more or less scrapped the confusion requirement and held
that dilution of a well-known trade mark was sufficient to warrant
an enumeration of acts considered unfair for fear that such enumeration would
exclude all others: Actes de Washington, 305–310. In the expert meetings preced-
ing the Hague Conference, it was clear that the term “unfair competition” was not
to be understood as being limited to the particular abuses specified in Art. 10bis:
S. Ladas (1930), 696.
28
S. Arima (1934), 25 interpreted the requirement of legislation against unfair
competition as meaning the protection of “fair play” in business and explicitly men-
tions the protection of trade secrets and prevention of undue monopolies.
29
Actes de la Haye 475 [1925].
30
See the decision “Decorative Veneer”, above fn. 9, 56.
31
Tokkyo Chò (1984), 323.
32
M. Miyake (1969), 296 lists the cases under the Unfair Competition Act before
the Tokyo District Court. He comes up with the following numbers: 1961–1968,
63 main actions and 103 interim proceedings. As a comparison, he mentions 661
main actions and 668 interim proceedings under industrial property rights legisla-
tion. Only after a decision to open the Unfair Competition Act to acts of dilution
of famous marks (see below) in the mid-1960s did the law become more attractive.
Still, until about 1990, the number of law suits was comparatively small.
33
S. Ono (1961).
34
M. Miyake (1969), 307 et seq.
490 intellectual property and anti-trust
6. Complementary Legislation
35
Decision of the Tokyo District Court of 30 August 1966, 461 Hanrei Jihò
25—“Yashica”. Finally confirmed by Supreme Court, 10 September 1998, 1655
Hanrei Jihò 160 [1998]—“Snack Chanel III”.
36
K. Kobashi, Fusei kyòsò bòshi soshò ni okeru genkoku (Standing in Suits Based
on the UCA), 1005 Jurist 21 [1992].
37
Decision of the Tokyo High Court of 22 December 1983, 15–3 Mutaishù 832
[1983]—“Casite”.
38
See, e.g., decision of the Osaka District Court 22 July 1993, 1994/1 Patent
95—“Rice Seedling Mat”: a sort of no-fault liability.
39
Decision of the High Court Tokyo of 29 July 1974, 6/7 Keihan Geppò 814
[1974]—“English Garment”.
40
Decision of the Sendai High Court of 12 February 1992, 793 Hanrei Times
239 [1992]—“Earthbelt”.
unfair competition law 491
41
Already advocated by Y. Someno (1958), 151 on the basis of Japan’s acces-
sion to the Madrid Agreement on the Suppression of Misleading Indications.
42
Less than ten cases have been published applying this provision.
43
In the early days before and after the Meiji Restoration, trade mark law was
regarded as correctly indicating the origin of goods from a certain shop (noren), and
to ensure a correct labelling of goods in terms of weights and measurements:
G. Rahn (1986), 495.
44
See the decision of the Supreme Court of 23 June 1991, 24 IIC 523 [1993]—
“Evidence of Trade Mark Use” with comment.
45
“Il est donc difficile de dire quand et comment la première imitation est apparut
et pour quelle sorte d’article. Toute fois, la plupart des gens s’accorde pour dire
que cet attitude s’ait acceler pendant les années quarante . . .” M. Suzuki (1982),
208.
46
Shiteki dokusen no kinshi oyobi kòsei torihiki no kakuho ni kan suru hòritsu,
Law No. 54 of 14 April 1947, current version as of Law No. 107/1992.
492 intellectual property and anti-trust
47
Specified in the two FTC Guidelines on Unfair Trade Practices (Fukòsei na
torihiki hòhò, of 1953, and in its current version as of 18 June 1982).
48
FTC decision of 16 June 1967, 2 KTIH 265/269—indication as “pure but-
ter”, although this was untrue; FTC decision of 31 May 1967, 2 KTIH 199—
“made from fresh lemons”, although in fact made from citrus acid and water; FTC
decision of 20 August 1964, 1 KTIH 62/65—“contains sugar”, although in fact
saccharine was used; FTC decision of 22 February 1962, 2 KTIH 151—offer of a
trip to Hong Kong upon purchase of a television. In fact, the two items were not
cheaper than when purchased separately; FTC decision of 12 April 1968, 3 KTIH
136—indication as a bargain sale, although the items were sold for there regular
price; FTC decision of 20 December 1947, 3 KTIH 6—sale of a contraption to
make people taller, although in fact rather a health hazard.
49
Futò hyò hinrui oyobi futò kyòji bòshi hò, Law No. 134/1962 as of Law No.
44/1972.
50
Franchise system ni kan suru dokusen kinshi kò jò no kangaekata ni tsuite, 20
September 1983.
51
Otori kòkoku ni kan suru hyòji, 28 April 1993.
52
Hikaku kòkoku ni kan suru dokusen keikin hyòji hòjò no kangaekata, 21 April
1987.
53
Futò renbai ni kan suru dokusen kinshihò jò no kangaekata, 20 November 1984.
54
Shòkin no gensan koku ni kan suru futò na hyòji, 16 October 1973.
unfair competition law 493
55
Statistics are provided by the FTC in 501 Kòsei Torihiki 58 (59) [1992].
56
Decision of the Tokyo High Court of 29 January 1972, 17 KTIS 232.
57
Decision by the Tokyo High Court of 17 December 1991, 25 IIC 805 [1994]—
“Decorative Veneer”.
58
Decision of the Tokyo High Court of 5 September 1966, Doi Digest 1971,
92—“Waukesha”.
59
Law No. 66/1990.
494 intellectual property and anti-trust
60
Decision of the Tokyo District Court of 24 September 1991, 769 Hanrei Times
280 [1992]—“Copper Sheeting Device”.
unfair competition law 495
8. Latest Developments
61
Law No. 47/1993.
62
Tsùsanshò (MITI) (1999), 38; further details are provided by M. Matsumoto
(1999), 43. The OECD resolution was made on 20 November 1997.
63
Law No. 33/1999.
64
See the report prepared by Tsusanshò (1999), 38. Nonetheless, the Copyright
496 intellectual property and anti-trust
9. Enforcement Figures
It is not easy to say how many cases have been decided by the
Japanese courts invoking principles of unfair competition law. One
of the standard works by Toyosaki/Matsuo/Shibuya, 1980, lists a
total of 183 cases since 1945: 132 by the District courts (Tokyo 60,
Osaka 45, and others 27), 41 by the High courts and 10 by the
Supreme Court.65 The two digests on Japanese court decisions con-
cerning trade marks and unfair competition by Doi provide for a
total of 18 cases between 1953 and 1976.66 The most complete list
of cases is provided by Ono (1994) listing a total of 553 cases up
to the end of 199367 of which 27 were decided before the enact-
ment of the Unfair Competition Act, almost exclusively by the Imperial
Supreme Court. The number of post-war Supreme Court decisions
listed by Ono is 51, although the number of cases he mentions goes
well beyond the scope of the unfair competition law as such.
A book published in 1992 on decisions in the field of unfair com-
petition68 lists a total of 56 “leading cases” on unfair competition
law between 1959 and 1991. Of these, 14 were issued by the Supreme
Court, 8 by the High Courts (4 from Osaka, 2 from Tokyo, and 2
from Sapporo), and finally 34 from the District Courts (16 from
Tokyo, 9 from Osaka, 3 from Kobe, 3 from Kyoto, 1 each from
Yokohama, Kanasawa and Hokkui).
The judiciary’s internal statistics kindly supplied by judge (as he
then was) Toshiaki Makino indicate an increase in newly received
intellectual property cases at the District Court level from 315 in
1989 to 556 in 1998, at High Court level from 49 in 1989 to 143
in 1998. Of the IP cases received in 1998 by the District Courts,
Act in 1999 was also amended to prohibit the marketing of anti-copying devices.
Contributory copyright infringement has been recognised in principle by Osaka
High Court, 27 February 1997, 1624 Hanrei Jihò 131 [1998] = 30 IIC 468 [1999]—
“Karaoke Snack Bar II”. Here, the lessor of Karaoke equipment was even held
jointly liable for copyright infringements by the use of copyrighted music on the
equipment. Liability of barkeepers for performances of guests had already been
established by Supreme Court, 15 March 1988, 1270 Hanrei Jihò 34 [1988]—
“Cat’s Eye”.
65
Toyosaki/Matsuo/Shibuya (1982), 8 et seq.
66
Doi, Digest 1971, cases 25–32, and Doi, Digest 1980, cases 31–40.
67
Ono (1994), 419–434.
68
Hanrei Fusei Kyògyòhò, Writings in Honour of Dr. Ono, 1992.
unfair competition law 497
– Hanrei fusei kyòsò bòshi hò, Shin Nihon Hòki, Tokyo 1978 et
seq. (loose-leaf );
– Hanrei fusei kyògyò hò, Hatsumei Kyòkai, Tokyo 1992.
– C. Heath, The System of Unfair Competition Prevention in
Japan, London 2001;
– S. Matsuda, Fusei kyògyò hò no kenkyù, Hatsumei Kyòkai,
Tokyo 1985.
– S. Ono, Fusei kyòsò bòshi hò gaisetsu, Yuhikaku, Tokyo 1994,
438 pages.
– S. Ono (ed.), Shùkai fusei kyòsò bòshi hò (Commentary on the
Unfair Competition Prevention Act), Tokyo 2000;
– Y. Tamura, Fusei kyòsò bòshi hò, Yuhikaku, Tokyo 1994;
– Toyosaki/Matsuo/Shibuya, Fusei kyòsò bòshi hò, Dai-ichi Hòki,
Tokyo 1982.
– Tsusanshò, Chikujò kaisetsu fusei kyòsò bòshi hò, Yuhikaku,
69
G. Schricker, Deregulierung im Recht des unlauteren Wettbewerbs?, GRUR
Int. 1994, 586 (587).
498 intellectual property and anti-trust
Tokyo 1994.
– T. Yamamoto, Shin fusei kyòsò bòshi hò, Hatsumei Kyòkai,
2nd ed. Tokyo 1997.
Literature:
(unless contained in the general list of literature or under I. above)
S. Arima, Fusei kyògyò ron (Writings on Unfair Competition), Tokyo
1924; idem., Fusei kyòsò bòshi hò ni tsuite (On the Unfair Competition
Act), Hòritsu Jihò vol. 6 no. 7 [1934], 24; T. Doi, Digest of Japanese
Court Decisions on Trademarks and Unfair Competition Cases,
Tokyo 1971; idem., Unfair Competition Law of Japan, I (Patents &
Licensing December 1974, 3); II (Patents & Licensing February 1975,
5); III (Patents & Licensing April 1975, 2); J. Eguchi, Various Aspects
of the Development in the Law of Unfair Competition, 19 Osaka
Law Review 1 [1972]); A. Horie, Madrid Jòtei ni tai suru senzen
no nihon no taido (On Japan’s Prewar Stance regarding the Accession
to the Madrid Agreement [On the Repression of False and Misleading
Goods], 16 Tokkyo Kenkyù 54 [1993]; H. Iyori, A Comparative
Analysis of Japanese Competition Law, in Coing (ed.), Die Japani-
sierung des westlichen Rechts, Tübingen 1990, 227; Kògyò Shoyùken
Kenshùjò (Training Institute for Industrial Property Rights), Fusei kyòsò
bòshi hò seitei kanren shiryò (Materials on Establishing Legislation
Against Unfair Competition), I (Tokkyo Kenkyù No. 5 [1988], 40);
II (Tokkyo Kenkyù No. 6 [1988], 48); III (Tokkyo Kenkyù No. 7
[1989], 58); IV (Tokkyo Kenkyù No. 8 [1989], 58); V (Tokkyo
Kenkyù No. 9 [1990], 49); VI (Tokkyo Kenkyù No. 10 [1990], 39);
VII (Tokkyo Kenkyù No. 11 [1991], 33); VIII (Tokkyo Kenkyù No.
12 [1991], 45); IX (Tokkyo Kenkyù No. 13 [1992], 12); X (Tokkyo
Kenkyù No. 13 [1992], 44); T. Matsumoto, Fusei kyòsò bòshi hò
wo torimaku saikin no dòkò (Recent Developments of the UCA in
a Nutshell), 204 Tokugikon 43 [1999]; M. Miyake, Fusei kyòsò bòshi
hò kankei soshò (Claims Related to Unfair Competition Law), in:
T. Suzuki/A. Mikazuki, Jitsumu minji soshòhò kòza (Structure of
Civil Procedural Law), Vol. 5, 1969, 295; S. Ono, Chùkai fusei kyòsò
bòshi hò (Explanations on Unfair Competition), 1961; G. Rahn,
Japan, in: Schricker/Stauder (ed.), Handbuch des Ausstattungsrechts,
1986; G. Rahn/C. Heath, What is Japanese about the Japanese
Unfair Competition Law, 25 IIC 343 [1994]; Y. Someno, Fusei kyòsò
bòshi hò (Unfair Competition Law), I (8 Tokkyo Kanri 147 [1958]);
II (8 Tokkyo Kanri 196 [1958]); III (8 Tokkyo Kanri 253 [1958]);
unfair competition law 499
Peter Ganea
Soon after Japan was forced by U.S. gunships to open her harbours
in 1854, a group of leading modernizers replaced the weak Samurai
bureaucracy in the course of the Meiji Restoration. They recognised
the importance of acquiring not only superior technical knowledge
from Europe and the United States, but also of promoting creativ-
ity and motivating the individual. The new ruling class proclaimed
a preliminary constitution on 3 March 1868, containing five articles
all of which aimed at developing Japan by exploiting the vigour of
the individual regardless of social class.1 After centuries of complete
isolation, scholars went abroad in great numbers and brought home
all kinds of new knowledge and ideas. Among them was Yukichi
Fukuzawa, one of the most famous contemporary modernizers, who
introduced the concept of copyright to Japan.2 Fukuzawa soon became
a victim of innumerable unauthorised reprints of his works and trans-
lations. He therefore urged the authorities to regulate the printing
market and to prosecute infringers. The Publication Statute (Shuppan
Jòrei ) was enacted in May 18693 to his satisfaction.4 The statute was
a combination of censorship and protection of publishers and authors
with strong emphasis on copyright registration formalities. The term
of protection was limited to the lifetime of the author, but could be
extended upon request of his relatives. Explicit protection was given
to translations of foreign material, clearly a measure for promoting
the importation of western knowledge. Punishment for unauthorised
1
G. Rahn (1990), 59: The five articles encouraged any individual to participate
constructively in public discussion, to acquire knowledge from outside Japan and
contribute to the welfare of the state, and provided for the right of self-realisation
and abolished former traditions.
2
N. Itò (1976), 28 et seq.: Fukuzawa translated the English “copyright” into
“licence for storing printing plates” (zòhan no menkyo) in his famous work “The
Situation in the West” (Seiyò jijò ).
3
Translation of the Statute into French by L. Lönholm (1900): Chapter “Collection
de la legislation sur les droits d’auteur”, 1–6.
4
N. Itò (1976).
copyright law 501
reprints was harsh: All printed material and the printing machinery
was to be seized and damages were to be paid to infringed authors
and publishers. The competent authorities for copyright were two
appointed imperial schools, later incorporated into the Ministry for
Education (Monbushò ). Fukuzawa seized the opportunity and brought
a number of cases concerning piracy and plagiarism before the court.5
He did not even hesitate to accuse harmless school teachers who
ordered reprints for educational purposes.6 Not least due to Fukuzawa’s
rigidity, an amendment to the Statute in 18727 weakened the lia-
bility of those engaged in printing educational material by stating
that fines against fraudulent printers should only be imposed after
“consideration of the state of affairs”.8 Another amendment followed
in September 1875, accompanied by penal provisions.9 This was the
first time the word hanken (printing plate right) was used as another
translation of the English term “copyright”. The administrative com-
petence for copyright issues was shifted to the Ministry of the Interior,
placing stronger emphasis on controlling the dissemination of ideas.10
The notice hanken menkyo (copyright license) had to be marked on
the work, otherwise it fell into the public domain. A first concept of
moral rights protection was introduced by prohibiting modifications
which prejudiced the interests of the original author. Furthermore,
the scope of protection was extended to authors of musical works
(Art. 27). In 1876 a similar statute covered property rights in pho-
tographic works.11 The copyright for photographs of landscapes, per-
sons and other objects was granted for a term of five years. This is
said to be the result of successful lobbying by Shinji Matsuzaki, a
famous photographer who demanded copyright protection for the
photos of the native population of Taiwan and their living environ-
ment, taken under adventurous circumstances during the Japanese
invasion in 1874.12
5
N. Itò (1976).
6
Criticised by N. Itò (1976), 29.
7
Statute of 13 January 1872, translated by L. Lönholm (1900), 6–11.
8
Due to the introduction of compulsory education in August 1872, the print-
ing industry was urgently needed to meet the demand for schoolbooks, see Kurata,
197 Copyright [1977], 6.
9
Statutes and penal provisions of 13 September 1975, translated by L. Lönholm
(1900), 12–27.
10
See Y. Kurata, 199 Copyright [1977], 5.
11
Statute of 17 June 1876, translated by L. Lönholm (1900), 28–30.
12
Y. Kurata in 198 Copyright [1977], 14.
502 intellectual property and anti-trust
13
Issued on 28 December 1887, translated by L. Lönholm (1900), 31–47.
14
T. Yoshimura, 350 Copyright [1990], 10–11.
15
Issued on 13. April 1893, translated by L. Lönholm (1900), 47–59.
16
According to R. Mizuno, father of the 1899 Copyright Act, regulations on
copyright were the result of a natural domestic development without any foreign
influence. See N. Itò (1976), 122 et seq., who does not agree to Mizuno’s view.
copyright law 503
these treaties, thus enabling the foreign parties to impose one con-
dition after the other, and forcing Japan to modernize its legal and
economic system according to their demands by promising to abol-
ish parts of the treaties. One condition of this type was the acces-
sion of Japan to the Berne Convention, signed in trade agreements
with Great Britain (1893) and Germany (1895), who on their behalf
promised Japan to abolish consular jurisdiction.17
17
The relevant passages of the treaties in JASRAC, Vol. I (1990), 71.
18
R. Mizuno, Bankoku hanken hogo dòmei ni tsuite (About the International
Treaty for the Protection of Copyright), JASRAC, Vol. I (1990), 77–90.
19
Y. Kurata, 215 Copyright [1979], 6.
504 intellectual property and anti-trust
and musical works. Term of protection was 30 years post mortem auc-
toris. The Second Chapter listed infringing acts as gisaku (fake), which
may be seen as comparable to the Belgian contrefacon, also a fictional
term for all kinds of copyright infringement. The Third Chapter
dealt with penal provisions outside the Criminal Code, that would
also have called for flogging for copyright infringers, that was a pun-
ishment considered unduly harsh at that time.20 The Fourth Chapter
provided transitory measures.
20
Governmental document “Chosakukenhò riyùsho” (Explanation to the Copyright
Act), missing name of authority and date of issue, reprinted in JASRAC, Vol. I
(1990), 91–93.
21
Circular of the Foreign Office and the Ministry of the Interior About the Issues
of Reservation Against and the Date of Ratification of the Berlin Treaty from Nov.
13, 1908 for the Protection of Literary and Artistic Works, reprinted in JASRAC,
Vol. I (1990), 114–115; details about the controversial discussion during the Berlin
Conference in R. Mizuno: Berurin ni okeru chosakuken hògò bankoku kaigi no
jòkyò (The Events at the International Conference for Copyright Protection in
Berlin). Taiyò 6/1908, reprinted in JASRAC, Vol. I (1990), 107–109.
22
See S. Yatsui (1985).
copyright law 505
23
A detailed overview on Wilhelm Plage’s activities in Japan in S. Oie, (1981);
P. Ganea (1998).
24
Partial amendment of the Copyright Act, as of 1 May 1934, Law No. 48.
25
Until a High Court decision of 1988 (Cat’s Eye decision, Hanrei Times 663,
95 et seq.; Hanrei Jihò 1270, 34 et seq.), Karaoke bars relied on this remnant of
the old anti-Plage-revision. According to Art. 14 of the Preliminary Provisions in
the new law, Karaoke bars were not specifically mentioned among those localities
mainly engaged in music (who had to pay), and therefore not obliged to pay remu-
neration to rightholders, see H. Saitò in 425 Copyright [1996], 20–29; Y. Tanaka
in 431 Copyright [1997], 23–28.
26
Chosakuken ni kan suru chùkai gyòmu ni kan suru hòritsu as of 5 April 1939, Law
No. 617.
506 intellectual property and anti-trust
IV. The Situation During and After the Second World War
27
N. Koizumi, GRUR Int. 1998, 579–583.
28
Details in N. Itò, (1976), 72–82.
29
Imperial Supreme Court decision as of 4 July 1914, in Chosakuken hanrei kenkyùkai
(Research Group on Copyright Cases), Saishin chosakuken kankei hanrei shù
(Collection of Recent Copyright Cases), 1986, 168–190.
30
Law No. 60/1920.
31
K. Yamamoto (1969), 242 et seq.
copyright law 507
32
See the list of prohibited musical works, mainly from Great Britain and the
United States, published as “Beiei ongaku no tsuihò” (Abolishment of music from
the United States and Great Britain) by the Cabinet Information Department on
27 January 1943, reprinted in JASRAC, Vol. II (1990), 97–102.
33
See N. Itò (1976), 245 et seq.
34
Law No. 155/1958.
35
Most of the post-war revisions had preliminary character and subsequently
extended copyright duration to avoid exhaustion of rights in expectation of a forth-
coming comprehensive copyright law revision, which should also provide for the
international duration level of 50 years—see N. Itò (1976), 247–249.
36
M. Katsumoto (1975), 118 et seq.
508 intellectual property and anti-trust
37
Law No. 48/1971.
38
T. Doi (1992), 93; the author characterises the New Law as “designed to be
a flexible copyright statute able to cope with new problems that may occur as tech-
nology develops”.
39
See M. Katsumoto (1975), 125.
40
Details in G. Rahn, Quellen des Urheberrechts. Japan/I (1984).
41
H. Saitò in Chosakuken kenkyù 4/1971, 76 et seq.; M. Handa, 7th ed. (1991),
199–236, finds some remarkable reasons for basing the new copyright law on a
monistic concept, thereby adopting the theory of E. Ulmer in postulating a core
right, inalienably belonging to the person of the author, and a number of economic
copyright law 509
fact that the moral rights of authors last forever (so-called droit moral
perpetuel). The term “derivative work” was introduced in Section 28,
leading to a clearer terminological distinction between the rights of
the author of such a subsidiary work and the original author.42
Authorship in cinematographic works (Sec. 16) is assigned to all con-
tributors, unless they are contributing as employees and are thus sub-
ject to Section 15, which provides authorship for the legal person
or employer. Section 29 regulates the ownership of copyright in cin-
ematographic works, providing full copyright for the producer of
such a work and assigning only moral rights to other contributors
such as directors or cameramen as co-authors (Sec. 64). Sec. 29–2
provides special rules for broadcasting organizations as copyright
owners of cinematographic works intended for TV broadcast, although
they are also endowed with a new neighbouring right in exploita-
tion of their broadcast (Subchapter 4 of Chapter IV of the new law).
The provisions for neighbouring rights43 also helped to repeal the
quasi-authorship of phonogram producers in their phonograms accord-
ing to the old Copyright Act. A great handicap to the rights of per-
formers is the lack of rights in audiovisually fixed performances, a
topic vividly discussed in today’s information age.44 Chapter III con-
cerning publication rights harmonises the rights and interests of
authors and publishers, providing the latter with more favourable
conditions concerning publication terms compared to the publica-
tion provisions introduced in the old Copyright Act in 1934.45 A
large part of the copyright law is dedicated to limitations on copy-
right (Secs. 30 to 50), regulating in detail the forms of free use of
works for non-commercial purposes. Finally, following the Brussels
revision of the Berne Convention, the term of protection for authors
was extended to a full 50 years post mortem auctoris. For owners of
neighbouring rights, the term of protection was subsequently extended
from 20 years in 1970 to 50 years today.
subsidiary rights, that may be transferable but cannot prejudice the core right—see
E. Ulmer (1960), 98 et seq.
42
M. Katsumoto (1975), 130 et seq.
43
Details about the Japanese neighbouring rights system in P. Ganea (2000).
44
Matsuda; Hamaguchi in 436 Copyright [1997]; K. Bandò in 437 Copyright
[1997].
45
Details in M. Katsumoto (1975), 146 et seq.
510 intellectual property and anti-trust
46
After accession to the Brussels revision on 12 July 1974.
47
Law No. 49/1978.
48
Y. Shimizu (1987), 320 et seq.
49
Law No. 76/1983.
50
Law No. 46/1984.
copyright law 511
51
See Zadankai (chat round) of JASRAC representatives in JASRAC, Vol. II
(1990), 307–312.
52
S. Matsuoka in Copyright 1989, 152–159; T. Kudò in 365 Copyright [1991],
2–15.
53
Law No. 63/1991; Japan acceded to the Rome Treaty in 1989 (see below).
54
Law No. 62/1985.
55
Details in G. Rahn, GRUR Int. 1984, 117–222.
56
T. Doi (1992), 102 et seq.
57
T. Doi (1992), 106 et seq.
512 intellectual property and anti-trust
58
Revisory Provisions on a part of the implementing provisions, Document No.
34/1996.
59
Law No. 64/1985; see M. Kòno in 304 Copyright [1986], 2–8.
60
Jap. dètabèsu, the Japonisation of the English term “database”.
61
See T. Doi (1992), 112–115; Y. Okamura in 305 Copyright [1986], 2–9.
62
T. Hamaguchi in 436 Copyright [1997], 2–15; K. Bandò in 437 Copyright
[1997], 2–21; K. Okamoto in 433 Copyright [1997], 2–21.
63
H. Saitò (1994), 126 et seq.
64
Decision of 15 March 1988, Hanrei Times 663, 95 et seq.; Hanrei Jihò 1270,
34 et seq.
65
Decision of the High Court Osaka as of 27 February 1997, see M. Ikeda in
436 Copyright [1998], 5–7.
copyright law 513
66
Rooms provided for individual customer groups for self service Karaoke enjoy-
ment; details about legal measures against Karaoke bars in Nihon Ongaku Chosakuken
Kyòkai Kaihò ( JASRAC Now) 460, 462, 463 [1996], 471 [1997].
67
Law No. 43/1989.
68
Law No. 63/1991; see A. Fujiwara in 362 Copyright [1991], 10–15.
69
Law No. 87/1988.
70
T. Doi (1992), 172 et seq.
71
Law No. 106/1992; see S. Taguchi in 383 Copyright [1993], 2–9.
72
Due to an agreement between the Electronic Industries Association of Japan
and JASRAC (see below), percentages increased from 1% to 2% for recorders and
from 1% to 3% for empty digital carriers in a three year term—Aktuelle Information
in GRUR Int. 1993, 264 et seq.
514 intellectual property and anti-trust
73
“Aktuelle Information” in GRUR Int. 1993, 264 et seq.; for an overview of
the discussion and work of the Copyright Council see Y. Okamura in 293 Copyright
[1985], 2–8; M. Amamiya in 329 Copyright [1988], 2–9; Statements of the JAS-
RAC president N. Akutagawa to the Educational Commission of the Upper House
on 4 June 1985 and on 13 May 1988, reprinted in JASRAC, Vol. II (1990) 262–276;
Chosakuken shingikai dai 10 shòiinkai hòkokusho no gaiyò (Summary of the Report
of the 10th Subcommittee of the Copyright Council) in 369 Copyright [1991],
12–14.
74
Cabinet Order No. 210.
75
T. Doi, Patents & Licensing 1999, Vol. 29, No. 4, 7–10.
76
Law No. 112/1994; see T. Mori in 408 Copyright [1995], 8–11.
77
Law No. 117/1996; see T. Hamaguchi in 430 Copyright [1997], 26–32.
78
K. Okamoto, 421 Copyright [1996], 17–28.
79
Article 18 of the Berne Convention, quoted in Article 14 (6) TRIPs, grants
retroactive protection in newly acceded countries, this retroactivity being limited by
the controversial Section 3. According to the Japanese interpretation, Section 3
grants freedom of choice, whether a member state wants to acknowledge the prin-
ciple of retroactivity or not. However, the United States and the European Union
regard Article 18 (3) as a permission to take only preliminary facilitative measures
in favour of the domestic culture industry, which otherwise may be exposed to
heavy impairment by sudden retroactivity in case of recent access.
copyright law 515
80
“Aktuelle Information” in GRUR Int. 1997, 1036.
81
C. Heath, 12 EIPR [1996], 677–680.
82
See T. Hamaguchi in 430 Copyright [1997], 26–32; “Aktuelle Information”
in GRUR Int. 1997, 1036.
83
T. Hamaguchi in 430 Copyright [1997], 26–32.
84
Both treaties in IIC 2/1997, 208–223.
85
Law No. 86/1997; see P. Ganea in GRUR Int. 1998, 571–579.
86
See (6) above.
87
Law No. 43/1999.
88
Law No. 42/1999.
516 intellectual property and anti-trust
89
See O. Kishimoto, 460 Copyright [1999], 32–35.
90
Law No. 77/1999; comparative table of new and old provisions in English,
translated by T. Doi, Patents & Licensing 1999, Vol. 29, No. 4, 12–29.
91
O. Kishimoto, 461 Copyright [1999], 47–53.
92
T. Koshida, 460 Copyright [1999], 24–31.
93
Law No. 33/1999 as of 23 April 1999; see Intellectual Property Office of the
Administration for Trade Policy of the Ministry of Industry and Trade, 460 Copyright
[1999], 38–40.
copyright law 517
(16) Extension of limitation clauses in favour of blind and deaf persons, new
rules with regard to damage calculation and submission of documents, introduc-
tion of special fines for infringement by legal persons and adaptation of foreign-
ers related provisions to the WCT:94 New limitation clauses facilitate the
making of audiovisual contents perceptible to blind and deaf con-
sumers (Secs. 37, 37–2, 43, 48). With regard to copyright infringe-
ment, courts are not bound by the “normal” licence fees raised by
the various collecting societies when calculating adequate damages
according to a licensing analogy, but may take into account the
actual licence fee that would have been obtained in the absence of
infringement (Sec. 114 (31)). Courts may also calculate damages at
their own discretion if a calculation on grounds of a licensing anal-
ogy etc. is not possible (Sec. 114–5). Furthermore, courts are autho-
rised to request the necessary documents containing evidence of
infringement. Such a request may only be refused for justified rea-
sons, e.g. if the requested documents contain a business secret (Sec.
114–3). With regard to criminal liability, a fine not exceeding 100
Million Yen has been introduced as a special deterrent in case of
infringements that occurred under the supervision of a legal person
(Sec. 124(1)(i)). Finally, the principle of reciprocity was adopted with
regard to the copyright duration of works from WCT member states.
(17) Enactment of the Act on the Business of Administrating Copyrights etc.
on 21 November 2000:95 The Act on the Business of Administrating
Copyrights etc. replaces the Act on Intermediary Business of 1939.
The new law aims at deregulation in the field of collecting admin-
istration. Accordingly, official admission is no longer required for the
establishment of a new collecting society and for the remuneration
standards, but instead only a formal registration with the director of
the cultural agency. Only collecting societies that dominate a cer-
tain field of rights administration are still under special supervision
of the cultural agency to avoid abuse of monopolistic marketing
power. With regard to the relationship between collecting society
and author, the individual right owner has the choice between entrust-
ment to fiduciary right administration, which requires right transfer
94
Law No. 56/2000; comparison of old and new regulation in 469 Copyright
[2000], 38–41; see K. Momii, 471 Copyright [2000], 19–25.
95
Law No. 131/2000, see T. Gòji, 477 Copyright [2001], 26–41 & 478 Copyright
[2001], 22–37.
518 intellectual property and anti-trust
96
Law No. 72/2002; see the explanations of the Copyright Department, 496
Copyright [2002], 26–39.
copyright law 519
Literature:
H. Aizawa, Konpyùta nettow ku jidai no chiteki zaisanshò (Intellectual
Property in the Age of Computer Networks), 1117 Jurist [1997],
86–91; N. Akutagawa, Statements to the Educational Commission
of the Upper House on 4 June 1985 and on 13 May 1988, reprinted
in Japan Society for Rights of Authors and Composers ( JASRAC ),
Nihon ongaku chosakuken shi (History of Japanese Music Copyright)
1990, Vol. II, 262–276; M. Amamiya, Tòmen suru chosakuken mondai
ni tsuite (Current Copyright Problems), 329 Copyright [1988], 2–9;
K. Bandò, Chosakuken wo meguru tòmen no mondai (Current
Problems in Relation to Copyright), 437 Copyright [1997], 2–21;
Chosakuken hanrei kenkyùkai (Research Group on Copyright Cases),
97
Rule 8 of the Supplementary Provisions to the amendment, however, excludes
phonogram protection, the term of which has already expired under the old pro-
visions, from revival.
520 intellectual property and anti-trust
Christopher Heath
1
E.g., I. Goto (1901); U. Toda (1910); H. Seki (1911). Supreme Court, 20 July
1920, Minroku No. 26, 992; Supreme Court, 26 November 1935, Hanketsu Zenshu
No. 1, 1246; the court even found a collective boycott in order: 4 March 1910,
Minroku No. 16, 185.
524 intellectual property and anti-trust
Anti-trust policy in the first half century after the country had opened
up towards the western world could be better described as a trust
policy.
Industrial growth in Japan from the Meiji period until the end of
World War II is intrinsically linked with, and indeed unthinkable
without, the formation and growth of the so-called Zaibatsu groups.
Literally translated, Zaibatsu means “wealthy clique”, although the
word itself has become synonymous with a certain structure of busi-
ness groups existing before World War II. Traditionally, the Zaibatsu
groups have been defined by their corporate structure as holding
companies with a number of subsidiaries in all types of businesses.2
It should be borne in mind, however, that a corporate structure only
evolved in the course of industrial and legal development during the
Meiji period. Neither did all the later Zaibatsu groups come from
the same background, nor was their success a foregone conclusion.
The four groups that are consistently mentioned as Zaibatsu are
Mitsui, Mitsubishi, Sumitomo, and Yasuda. Asano, Òkura und
Furukawa are also sometimes mentioned. In 1928, the above-mentioned
groups held 16.5% of the total paid-in-capital of joint-stock compa-
nies in Japan.
The Mitsui had been political merchants since the late 17th cen-
tury, exchanging money for rice during the days of the Tokugawa
Shogunate. Having avoided bankruptcy during the political turmoil
between 1866 and 1868, Mitsui continued operating as a political
merchant of the new Meiji government, acting as one of the three
licensed financial agents. In 1876, the Mitsui Bank was founded.
Yasuda also made its fortune by means of fiscal operations at the
start of the Meiji period, mostly by speculating in paper money. The
National Bank, founded in 1876, was renamed the Yasuda Bank in
1880. As with Yasuda, Mitsubishi’s origin could be traced to the
beginning of the Meiji period, the founder being a member of the
impoverished Samurai class. The founding family profited from pur-
chasing ships and weapons from foreign merchants, first in Nagasaki
and later in Osaka. The trading company Mitsubishi (“Three Dia-
2
H. Morikawa (1992), XVII; E. Hadley (1983), 361.
anti-trust law 525
of the 1880s, most of the Zaibatsu groups kept out of those busi-
nesses still dominated by the government, namely railways and silk-
spinning.
It is interesting to note that the financial basis of almost all of the
Zaibatsu groups was derived from substantial income from stock-
holdings, while today’s cross-shareholdings largely serve different pur-
poses (see below IX.1). All in all, between 1880 and 1920 the Zaibatsu
groups profited from financial and managerial resources embedded
in proper organisational structures. While rules concerning inheri-
tance and ownership were defined more precisely after the turn of
the century, the holding structure for which Zaibatsu are known was
only developed during World War I.
3
G. Rahn, Rechtsdenken und Rechtsauffassung in Japan, 80–129 [1990].
4
See Seiji Tanaka (1922), advocated control of cartel laws because of his gen-
eral distrust of bourgeois structures. In the newly founded periodical Jiyù Tsùshò
(Free Economy), Teijiro Ueda came out in favour of free trade and a control of
cartels. He even criticised Japanese laws encouraging or mandating cartels in Gòrika
wo samatageru sangyò tòseihò (An Economic Control Act Preventing Rationalisation),
4/4 Jiyù Tsushò [1931].
5
The objective itself is not unusual, as many countries even today permit export
cartels because there is no visible effect on the domestic market (beggar-thy-neigh-
bour-policy).
anti-trust law 527
6
Tsùshò Sangyò Shò (MITI), Shòkò seisakushi-dai 9 kan (History of Trade and
Economic Policies, Vol. 9), 12–14 [1961].
7
There are a number of detailed studies on the Zaibatsu: A. Bisson (1954);
E. Hadley (1970).
528 intellectual property and anti-trust
It will not come as much of a surprise that the United States, which
already at the turn of the century had an anti-trust legislation in
place, was suspicious of Japanese cartel structures when its occupa-
tion forces arrived in 1945. Japan was to be re-organised democra-
tically. For this reason, the Zaibatsu groups were dissolved, all
organisations responsible for controlling economic power abolished
and a number of mergers undone. Particularly the dissolution of the
Zaibatsu groups was hotly disputed within the U.S. Department of
State. It was argued on the one hand that the Zaibatsu groups had
supported parliamentary democracy. On the other hand, huge eco-
nomic concentration was deemed not the best starting position for
a fledgling democracy. In the end, the Zaibatsu dissolution pro-
gramme made a huge disposition of the securities held by their
holding companies and family members mandatory. The Big Four
themselves had drawn up a dissolution plan at the end of 1945, con-
sisting of the sale of stock and the resignation of all family mem-
bers from their respective enterprises. The Supreme Commander for
the Allied Powers (SCAP) was responsible for all measures carried
out in Japan. Directive No. 244 of 6 November 1945 spelled out
what the United States had in mind regarding Japanese anti-trust
policy: the Japanese Parliament was meant to enact “such laws that
prevented monopolies, restraints of trade, undue cumulation of man-
agement posts in different enterprises and undue cross-shareholding;
banks and companies should be separated”. The Japanese, however,
were little inclined to comply with such revolutionary ideas. The
draft law presented by the Japanese government very closely resem-
bled the old economic control laws and was therefore rejected out
of hand by SCAP. In August 1946 SCAP presented its own draft
that formed the basis of the Anti-Monopoly Act which was ratified
by Parliament in March 1947.8
8
Shiteki dokusen no kinshí oyobi kòsei torihiki no kakiho ni kan suru hòritsu,
Law No. 54/1947.
anti-trust law 529
9
A “substantive restraint of competition” refers to cases where “competition is
restrained to the extent that one or several competitors are in a position to con-
trol price, quantity, quality or other factors at will”, which would be the case where
more than 25% of the market is concerned: Tokyo High Court, 7 December 1953,
5 KTIS (official collection of antitrust cases) 118—“Toho/Subaru”. Confirmed by
Supreme Court, 25 May 1954, 8 KTIS 102.
530 intellectual property and anti-trust
10
In toto, only six decisions have been rendered in this matter, the last in 1972:
FTC decision of 18 September 1972, 19 KTIS 87—“Toyo Cans”.
11
Tokyo High Court, 9 March 1953, 6 Minshù 435—“Asahi”. One may justify
this by the fact that undertakings on different market levels are not considered com-
petitors.
12
FTC decision of 27 December 1972, 19 KTIS 126—“Asahi Kasei et al”.
13
FTC, 27 December 1971, 18 KTIS 126—“LP Gas”.
14
FTC, 12 January 1974, 20 KTIS 248—“Mitsubishi Shoji”.
15
Effective enforcement is difficult here due to the close ties between politics and
the construction industry. Foreign pressure in the 1990s led to some prosecutions
and surcharge orders. E.g. in the financial year 1994, formal decisions were ren-
dered in 24 cases; in one case a criminal complaint was made and in 26 cases sur-
charge orders were rendered against 512 entrepreneurs in the amount of 5.67 billion
Yen: Reported in the paper “Recent Development of Competition Policy in Japan”,
published by the Fair Trade Commission on 7 August 1995.
16
Under the 1953 guidelines, the FTC issued 91 formal decisions, of which 37
concerned prohibited retail price maintenance.
anti-trust law 531
17
FTC Notification No. 15 of 18 June 1982, in force since 1 September 1982.
18
These guidelines were frequently amended. The first guidelines issued on 24
May 1968 were heavily biased towards the (presumably) Japanese licensee and espe-
cially prohibited unilateral grant-back clauses of technology. The guidelines were
substituted by new ones of 15 February 1989 that maintained the prior notification
requirement, yet introduced a distinction between white, grey and black clauses.
The new guidelines of 1998 follow a rule of reason approach and no longer require
prior notification of licensing agreements.
19
This legal opinion amends a previous one of 20 September 1983.
20
Supreme Court, 10 July 1975, 22 KTIS 173—“Wakodo”.
21
Trade associations are frequent offenders: Between 1953 and March 1990, no
less than 367 formal decisions were issued against such associations.
532 intellectual property and anti-trust
e) In its original form, the AMA did not contain any exemptions
to the act other than those for the exercise of industrial property
rights, for “natural” monopolies (i.e. state-owned companies), and
certain mergers in the retail sector. The pandora’s box of exemp-
tions was only opened in 1953.
f ) The Fair Trade Commission was set up as a panel of five per-
sons with a staff of initially 323, now about 500 persons. The appoint-
ments of commission members have mostly been politically motivated
and followed certain patterns of influence: Traditionally, the Ministry
of Trade and Industry (MITI) and the National Tax Bureau have
been able to regularly supply some of their high-ranking members
to the FTC. Only since the 1990s have these appointments received
more publicity, and only since then has the Bureau of the Prime
Minister, to which the FTC is attached, appointed FTC members
from a wider spectrum, e.g. from the public prosecution services.
g) The procedures have remained unchanged since 1947: Most of
the cases have been concluded informally, which saved the FTC the
trouble of further investigating in order to issue a formal recom-
mendation, and was deemed face-saving for the undertakings involved.
Since the 1990s, such informal warnings have been released to the
press in special cases of public interest. Formal recommendations are
always published and require the FTC to thoroughly investigate all
the facts. The entrepreneur involved may accept such formal rec-
ommendation within 14 days, otherwise a hearing procedure is opened.
Where a recommendation is accepted or a hearing procedure results
in the ascertainment of wrongdoing, the FTC may take any reme-
dies necessary to stop the wrongful behaviour. Only in 1977 did it
become possible for the FTC to issue surcharge orders as a per-
centage of turnover.
The following explanations indicate the economic and political back-
ground of 50 years of anti-trust policy. Amendments to the AMA
and enforcement patterns have less to do with new insights into com-
petition policy than with industrial policy, domestic politics, admin-
istrative pressure, consumer demands and foreign intervention.
law on trade associations, banning these groups per se. While the
Zaibatsu groups were dissolved, a number of medium-sized con-
glomerates initially earmarked for dissolution could escape this fate
due to the escalating conflict in Korea which made the United States
dependent upon Japan for supplies. Of the 325 conglomerates ini-
tially to be dissolved, only 19 actually were.22 The waning U.S. eco-
nomic control gave the Japanese administration the chance to revert
to their old ways. The Fair Trade Commission did not exactly fit
into the picture. This Commission and the Anti-Monopoly Act were
widely seen as a punishment which would prevent Japan from becom-
ing a major economic player again. How difficult things were can
be imagined when the Japanese interpreters translating the drafts of
the Anti-Monopoly Act from English into Japanese were forced to
admit that they did not know what they were translating.23
It would not take long before these feelings of anger were vented
in the form of a legislative proposal. After the Act on Trade Asso-
ciations had been modified in 1952, the recession after the Korean
War was seen as an ideal opportunity for effecting substantial changes
in the Anti-Monopoly Act. Industrial circles and the Ministry of
Trade and Industry (MITI) advocated a system of generous excep-
tions and a general dilution of the per se prohibitions in the Act.
Meanwhile, however, the Anti-Monopoly Act had received support
from academic writers, small and medium-sized enterprises, consumer
associations, and others. In order to preserve its independence, the
Fair Trade Commission bowed to political pressure from the Ministry
of Trade and Industry and published a legislative proposal for a dilu-
tion of the Anti-Monopoly Act. Upon ratification in September 1953,24
a number of measures were enacted that significantly weakened the
Anti-Monopoly Act. These were, in particular:
(1) A number of per se prohibitions such as concerted activities
and the formation of private control organisations were deleted.
(2) Trade associations could now be founded without prior approval
and could act freely.
(3) An exemption law was drafted that in principle allowed carteli-
sation upon approval of the ministry supervising such industry rather
than the FTC.
22
E. Hadley (1970), 180.
23
C. Johnson (1982), 175.
24
Law No. 253/1953 as of 1 September.
534 intellectual property and anti-trust
25
Apart from copyrighted works, this mostly concerned items of daily use. The
FTC normally exempted cosmetics with a value of less than 1,000 Yen.
26
Shitake daikin shiharai chientò bòshi hò, Law No. 120/1956 as of 1 June.
27
Futò keihin rui oyobi futò hyòji bòshi hò, Law No. 134/1962 as of 15 May.
28
Kyòsò seisaku no kanten kara no seifu kisei no minaoshi (Change of Government
Regulations in the View of Competition Policy) [October 1989].
29
Decision by the Fair Trade Commission of 30 October 1969, 16 KTIS 46.
anti-trust law 535
The beginning of the 1970s coincided with the first major oil crisis.
In order to spare the Japanese industry the brunt of price increases,
the Ministry of Trade and Industry persuaded oil importers to keep
prices of industrially used oil low and tacitly tolerated that oil im-
porters formed a cartel for price increases of petrol and heating oil
used by consumers.30 The FTC’s request for criminal indictment of
the oil importers was an ingenious act of publicity. Not only did it
highlight the Ministry of Trade and Industry’s incompetence and
negligence towards consumers, but it also brought the Fair Trade
Commission back into the limelight as perhaps the only govern-
mental advocate of consumer interests. In addition, the case brought
some long-term publicity: the final decision by the Supreme Court
convicting most of the accused was not handed down until 1984.31
Now that the initiative had reverted back to the Fair Trade
Commission, in 1977 Parliament demonstrated its approval of strength-
ening the Anti-Monopoly Act.32
(1) A new provision allowed the FTC to issue surcharge orders
amounting to 1.5 or 3% of the turnover during the prohibited activ-
ities. Most surcharge orders subsequently made concerned bid-rigging
schemes.
(2) A provision was introduced that allowed the FTC to request
information in cases of so-called parallel price increases. While ini-
tially of some effect, there seem to be no long-term deterrents.
(3) Stockholding limitations of banks were tightened again to the
original level of 5%, and a ceiling was introduced establishing that
the amount of stock that large companies hold of outside compa-
nies should not surpass their own worth. With the complete liber-
alisation of the process of forming holding companies in 2002, this
limitation was again abolished.
The chairman of the FTC, angered by such pressure, resigned only two days later.
The decision, however, marked the end of the FTC’s decline.
30
M. Ramseyer (1986), 604; the annual “Law in Japan” dedicated a whole issue
to oil cartel cases (1982).
31
Decision of the Supreme Court of 24 February 1984, 1108 Hanrei Jihò 3
[1984].
32
Law No. 63/1977 as of 3 June.
536 intellectual property and anti-trust
In the 1980s, the Fair Trade Commission was busy drafting new
guidelines in order to secure an increased compliance with the Anti-
Monopoly Act’s provisions. It issued guidelines of a general nature
(1982), some legal thoughts on franchising contracts (1983), new
guidelines on patent and know-how licences (1989), guidelines on the
distribution system (1991) and guidelines on joint research and devel-
opment (R&D) (1993).33 Stepping up enforcement activities begun at
the end of 1980s were due to the so-called SII (Structural Impediments
Initiative) talks between Japan and the United States. During these
talks, the U.S. had pressed for increased trust busting activities by
the Japanese Fair Trade Commission. As a consequence, the FTC
was granted an increase in personnel (564 as of 2000) and the political
freedom to act even when contrary to the interests of other ministries.
In the course of the SII talks, the U.S. government identified a num-
ber of issues where it thought that insufficient anti-trust enforcement
in Japan would close markets to foreign competition. Although not
necessarily correct, the initiative led to a major increase in anti-trust
activities and in personnel of the Fair Trade Commission in a major
overhaul of the Anti-Monopoly Act in 1992.34 The revision increased
the percentage of surcharges on cartel activities from 3% to 6%,
and limited financial institutions to hold a maximum of 5% of the
shares of outside companies. From 1990, the number of formal mea-
sures taken by the FTC increased dramatically: from seven in 1989
to 22 in 1990, and 30 in 1991.
Two revisions in 1997 and 2003 concerned the prohibition against
holding companies. By Law of 18 June 1997, the prohibition on
forming holding companies was lifted. The prohibition had been
introduced into the original 1947 Act, because the Americans per-
ceived holding companies to be a serious obstacle towards a demo-
cratic economy. The new Sec. 9 only prohibited the establishment
of a holding company “with excessive concentration of economic
power”. This was defined as a company with an extremely large
33
All the above-mentioned guidelines are reprinted in Iyori/Uesugi (1994).
34
By Law No. 107 (1992).
anti-trust law 537
35
Law of 20 June 1997.
36
Law of 19 May 2000, in force since 1 April 2001.
538 intellectual property and anti-trust
Vertical Keiretsu are enterprises that are integrated with each other
along the distribution chain from the manufacturer all the way down
to retail outlets and all the way up to parts manufacturers and other
sub-contractors.37 In some cases, the dominating unit in this chain
is the manufacturer, in others a large retail store. Integration is
effected by the dominating enterprise in this chain holding stock of
the other enterprises, sharing part of the financial risks, and trying
to integrate purchase or distribution by pooling information, etc. The
highest degree of vertical integration can be found in the automo-
bile and electronics industry. Although benefits may derive from all
those involved by streamlining distribution structures, discriminating
practices against sub-contractors, factual maintenance of prescribed
retail prices and voluntary or mandated exclusion of outsiders have
proved to be detriments. The Fair Trade Commission has tried to
counter the negative impact of vertical Keiretsu structures by means
of their guideline on the distribution system of 1991.
Yet what is generally referred to as “Keiretsu” is a horizontal
structure of enterprises operating in different fields under a common
name. There are believed to be presently six Keiretsu groups: Mitsui,
Mitsubishi, Sumitomo, Fuyo (Fuji), Sanwa, and Daiichi Kangyo.
Since holding companies are forbidden in Japan, these business groups
do not share a common holding company, and are linked only loosely
with each other.38
Keiretsu groups share the following patterns:
(1) A varying degree of loosely linked enterprises in different sec-
tors, currently between 20 (Sumitomo) and 47 (Daiichi Kangyo).
(2) Close or fairly close links to the common bank of the group.39
(3) Cross-shareholdings between all group members to a varying
degree. On average, one enterprise holds about 1.7% of the public
shares of another enterprise of the same group. This adds up to
alsmost 30% of the share capital held amongst the old Zaibatsu
groups, Mitsui, Mitsubishi and Sumitomo, and almost 20% for the
others.
37
A. Negishi (1994) and (1995).
38
K. Imai, Japanese Business Groups and the Structural Impediments Initiative,
in: K. Yamamura, Japanese Economic Structure, Should It Change?, 167–202 [1990].
39
Horiuchi/Packer/Fukuda, What Role has the “Main Bank” Played in Japan,
2 Journal of Japanese and Int’l Economies, 159 [1988].
anti-trust law 539
40
FTC, Kigyò shudan no jittai ni tsuite (On the Current Situation of Business
Groups), ed. in 1992. The FTC’s findings are reported in Iyori/Uesugi (1994),
319–351.
41
There is quite ample literature on the subject, i.e. W. Pape (1980); A. Negishi
(1985), 277.
42
Another view is given by H. Baum, Emulating Japan? in: H. Baum (ed.), Japan:
Economic Success and Legal System, 1 [1997].
43
U. Schaede, The “Old Boy” Network and Government “Business Relationships”
in Japan, in: Baum (ed.), Japan: Economic Success and Legal System, 345 [1997].
540 intellectual property and anti-trust
3. Private Enforcement
The AMA is meant to protect a bundle of different interests: those
of competitors, consumers and the general public at large. Putting
all these interests under one umbrella one could argue would only
be possible for a disinterested administrative body rather than pri-
vate individuals. While it is certainly true that the AMA and its com-
plementary legislation do not protect individual consumer interests,
it is also true that the FTC is bound to properly protect public inter-
ests and to take appropriate measures. The AMA is meant to pro-
vide the country with a comprehensive law helping to regulate the
economy. It places enforcement in the hands of the FTC. However,
with a staff of about 500, the FTC would be hard pressed to enforce
the law, let alone detect all the unfair trade practices that occur in
the second largest economy of the world. This gives rise to the ques-
tion how far private individuals can rely on the powers of the AMA
to privately enforce their rights. Desirable as this may be, there are
a number of difficulties which stand in the way. When examining
court cases, there appears to be an instinctive reaction to ignore anti-
trust issues because the FTC should be expected to deal with them:
“According to this provision of the Free Gifts and Trade Misrepre-
sentations Act, any person aggrieved by a measure of the Fair Trade
44
Amendment by Law No. 87 of 18 June 1997 and the subsequent guidelines
by the Fair Trade Commission as of 8 December 1997, reprinted in 28 FTC/Japan
Views, 37 [1997].
anti-trust law 541
45
Decision of the Supreme Court, 1 March 1978, 360 Hanrei Times 132, 134—
“Juice”.
46
M. Matsushita (ed.), Fukòsei na kyòsò kòi to minjiteki kyùsai (Unfair Trading
Acts and Civil Relief ), NBL Bessatsu 43 (1997); Tsusanshò (ed.), Fukòsei na kyòsò
kòi ni tai suru minjiteki kyùsai seidò no arikata (Unfair Trading Acts and how the
System of Civil Relief should be), NBL Bessatsu 49 (1998); Higashide (ed.), Dokusen
kinshihò ihan kòi to minjiteki kyùsai seidò (Anti-competitive Acts and the System
of Civil Relief, NBL No. 55 (2000); Higashide, Dokkinhò ihan to minji soshò (Civil
Suit and Anti-competitive Acts), Tokyo 2001.
47
The 1994 Unfair Competition Prevention Act does not protect consumers
(unlike the AMA) and grants remedies of injunctive relief and damages only to com-
petitors.
48
The provision was introduced by law on 19 May 2000, and came into force
on 1 April 2001.
542 intellectual property and anti-trust
Literature:
M. Ariga, Efforts to Revise the Japanese Anti-monopoly Law, 21
Antitrust Bulletin 703 [1976]; idem., Japan, in: V. Kalinowski (ed.),
Competition Law of the Pacific Rim Countries, Vol. 6, Chapters
1–20, loose-leaf [1989]; A. Bisson, Zaibatsu Dissolution in Japan
[1954]; Fair Trade Commission, Dokusen kinshihò seisaku 30 nen shi
(30 Years of Anti-trust Policy) [1977]; idem., Dokusen kinshi hò seisaku
50 nen shi (50 Years of Anti-trust Policy) [1997]; I. Goto, Kigyòka
no rengo oyobi gòdò (Cartels and Trusts of Enterprises) [1901];
E. Hadley, Antitrust in Japan [1970]; idem., “Zaibatsu” in: Kodansha,
Encyclopedia of Japan, Vol. 8, 361 [1983]; J. Haley, Japanese
Antitrust Law: Commentary and Cases [1982]; Y. Henrinckx, Le
droit de la concurrence au Japon, Revue de droit internationale et
droit comparé, 320 [1985]; H. Iyori, Anti-trust and Industrial Policy
49
Correctly M. Murakami (2001), 32.
50
M. Murakami (2001), 34.
51
W. Visser d’Hooft (2002), 78.
anti-trust law 543
LABOUR LAW
1. Introduction
1
K. Ishikawa, The Regulation of the Employer Employee Relationship: Japanese
Labour Relations Law, in: Law in Japan ed. van Mehren (1963), p. 439.
pre world war ii development 545
The beginning of the Meiji Era is always said to have marked radi-
cal change and modernization of Japanese society with a rapid growth
of capitalism, but actually it took some time and more external
influence to bring about rapid growth. In the late 1880s mechanized
factories had already appeared on a widespread basis, but the major
part (84%) of the nations 8,612 companies, as of 1902, were founded
in the few years following the Sino-Japanese War (1894–95) and
thus marked the period of the Japanese Industrial Revolution.2 Some
scholars even argued, with some exaggeration, that ‘whereas the
Industrial Revolution occurred in Great Britain over the latter half
of the eighteenth century, the process took place in Japan between
1895 and 1897’.3
Characteristic of this period were feudal labour relations and
the severe exploitation of workers in the silk, spinning and coal
mining industries, for example, but also in public works. In partic-
ulars, the problem of women spinners and farm village girls being
sold under the guise of “employment contract” to entertainment busi-
nesses has often been treated not only under the aspect of legal his-
tory.4 Although the so called ‘labour question’ has often been discussed
in Japan since the end of the Sino-Japanese War there were, in real-
ity, three distinct labour problems which are still relevant today: they
were related to the supply of labour, to working conditions, and to
strikes and organized labour. The means by which the state, through
its laws and by economic measures responded to labour questions
until the end of World War II, was closely related with the nature
of Japan’s industrial revolution and the formation of its working
class.
2
Sh. Garon, The State and Labour in Modern Japan (1987), p. 10. Another
great influence on Japan’s industrialization was the Russo-Japanese-War (1904–05)
and World War I (1914–18).
3
E. Kawai (ed.) Meiji shòshi no ichidammen (1969), p. 225.
4
For instance G. Yokoyama, The Lower Ranks of Japanese Society (1897) or
W. Hosoi: The Tragic History of Women Factory Workers (1925).
546 labour law
3. Unionism
5
S. Garon, The state and labour in modern Japan (1987), p. 12.
pre world war ii development 547
6
R. Dore, British factory-Japanese factory (1973), p. 381f.
548 labour law
7
A. Gordon, The evolution of Labour Relations in Japan (1988), p. 47.
8
E. Harari, The politics of labour legislation in Japan (1973), p. 14.
pre world war ii development 549
9
K. Takayanagi, A century of innovation: The development of Japanese law,
1868–1961; A. v. Mehren (ed.) Law in Japan (1963), p. 8.
10
See full translated text of the declaration of the socialist party of 1901 in D.J.
Lu, Sources of Japanese History vol. 2 (1974), p. 90f.
550 labour law
the party declaration in its entirety. Thus the founders of the SDP
gained a much wider audience than they could otherwise have
expected. This declaration contained, inter alia, the following: “The
ideals of freedom and equality, which were spread from France to
the Western European countries and to America . . . contributed
greatly towards the realization of egalitarism in political matters.
However, with the immense material progress in the past centuries
the social classes of aristocracy and common people have been
replaced by the new classes of the rich and the poor. . . . When we
look at the political conditions in our country, we discover that all
political agencies are operating for the benefit of the rich . . . We
must remember that the majority of the country consists of those
tenants who till the fields or those workers who sweat in the fac-
tory . . . Should not the political parties provide the means to extend
to them their political rights? . . . today’s political parties do not rep-
resent the will of the majority of the people . . . our party shall work
(therefore) towards the following ideals: . . . A Bureau of Labour shall
be established to investigate all matters pertaining to labour; . . . No
school children shall be permitted to engage in labour. . . . No women
shall be permitted to engage in such occupations as shall be detri-
mental to their morality or health . . . Night shift work for women
and children shall be abandoned. . . . No work shall be performed
on Sundays, and the working hours shall be limited to eight hours
a day; there shall be an employment compensation law under which
the employer shall be responsible for paying adequate compensation
for injuries suffered by his employees while at work. . . . there shall
be a labour union law under which workers’ rights to organize freely
can be recognized, and be given adequate protection. . .”.
Thus the leaders of the SDP still thought they could gain their
political aims by legal means, but this belief was later shattered,
when leadership was taken over by a more radical activist wing of
the party. Nevertheless the programme shows the already strong
influence of modern ideas on labour rights in Japan at that time.
The outbreak of World War I thrust Japan into the position of
supplying the warring nations of Europe with war material and sup-
plying the markets of Asia with consumer goods. As a result, the
Japanese economy started to move towards a ‘second industrial rev-
olution’ with the sudden growth of heavy industry, especially metal
working, machines and equipment, and shipbuilding. On the other
hand, the end of the war also saw the end to the strong demand
pre world war ii development 551
for supply of such goods, so that the Japanese economy had to reor-
ganize itself, with severe consequences for the labour market.
Beyond that Japan was confronted after World War I, through
the first ILO Congress in 1919, with the international relations of
labour problems, which made clear the importance of labour unions
for industrial societies. This experience led to attempts at labour
union legislation, supported by the moderate but strong labour orga-
nization Yùaikai (Friendship Association, 30.000 members in 1918).11
Several bills had been submitted, which were, however, strongly
opposed by industrialists. All efforts at legislation finally collapsed in
the Upper House in 1931.12 Major points of dispute among the var-
ious proposals were questions such as whether governmental recog-
nition of unions would automatically occur, merely on the basis of
reporting by the unions, or whether it should be conditional on gov-
ernment licensing.13
Whereas attempts for legislation of collective labour issues had
failed, there had been successful attempts to establish labour pro-
tection laws. Their practical meaning has been rather limited, but
nevertheless it shows a gradual increase in awareness of the problems.
Legal regulation of employment questions started with the enact-
ment of the Japanese Civil Code in 1898. But, as under the Meiji
Constitution, the benevolent paternalism of employers and preva-
lence of an extended family system created little need for govern-
ment interference with rules of employment. On the other hand, the
Civil Code was dominated by the new idea of primacy of contract,
which led to the situation that, whatever cases might arise over terms
of work, these could be disposed of only through the Civil Code
which, in fact, strengthened the legal position of the employers.
4. Factory Law
11
In August 1919 it changed its name to Dai Nippon Ròdò Sòmei Yùaikai, and in
1921 to Nihon Ròdò Sòmei.
12
See H.P. Marutschke, Anfänge der Gewerkschaftsbewegung in Japan, Kobe
Law Review 22 (1988), p. 25, 31ff.
13
For more details see K. Sugeno, Japanese Labour Law (transl. L. Kanowitz),
p. 8.
552 labour law
14
Amended to more than 10 employees in 1923.
15
K. Taira, Economic development, labour markets and industrial relations in
Japan 1905–1955, The Cambridge History of Japan Vol. 6 (1988), p. 609.
16
Sugeno, p. 7.
pre world war ii development 553
The fact that, at the end of the 19th century, female factory work-
ers were typically employed in silk thread manufacturing and spin-
ning and became exploited by private employment agencies in the
private sector, whose activities were accompanied by trading in
human beings and forced labour, gave rise to a need for regulation.
Internationally, the ILO’s 1919 general meeting adopted the ‘Treaty
Concerning Unemployment’ and a ‘Recommendation Concerning
Unemployment’, which were both based on the fundamental notion
that ‘labour was not a commodity’. This principle had been pro-
claimed in Title 13 sec. 1 of the Versailles Treaty, which laid the
foundation for the establishment of the ILO. The ILO established
the principles of not allowing private enterprise to intervene in work-
ers’ job finding and job seeking activities, the setting up of govern-
ment-run employment exchanges and the prohibition of such activities
by private enterprise. The Treaty was ratified by Japan in 1922.
The Employment Placement Law, which established employment
offices in the municipalities and prohibited profit-making placement
enterprises, was therefore enacted in 1921. In 1938, a new Employment
Placement Law was enacted which placed occupational placement
policy under national administration and subjected the supply of
labour and the recruitment of workers to a permit system. This was
the predecessor of the actual Employment Security law.17
Other pre-World War II—labour legislation included the Workers
Injury Assistance Law which, together with laws and protective sys-
tems enacted during the war (Factory Employment Hours Decree,
Wage Control Decree, Shop Law),18 and the experiences of these
regulations, resulted in the elaboration of post-war labour legislation.
17
Sugeno, pp. 39–40.
18
This law, from 1938, imposed a duty on shops to close by ten o’clock in the
evening and to provide employees with one day off each month.
554 labour law
Japanese labour law did not exist in a meaningful sense until 1946.
This year indeed is a kind of landmark in the history of Japanese
labour law.
Under the authority of the Supreme Command for the Allied
Powers (SCAP)19 the American forces began the occupation of Japan
in September 1945 with the firm intention of dismantling Japan’s
authoritarian wartime apparatus and introducing democracy. But the
policy of democratization was not limited to formal political institu-
tions. The occupation authorities assumed that political democracy
needed a ‘democratic social environment’ in order to stabilize the
structure of Japanese society. As the best method of creating this
structure was not entirely clear at the outset, social reforms emerged
in a somewhat uncoordinated fashion, as different programmes were
initiated independently by various sections of the SCAP. Some of
these programmes aimed at a fairer distribution of national wealth
in order to eliminate social inequities, which were held responsible
for the rise of fascist-conservative forces in pre-war Japan. Others
asked for the promotion of strong social forces able to defend the
new democratic political structure against conservative reaction or
conservative backsliding, some programmes, finally, were aimed at
encouraging the spread of ‘democratic’ values and ideals among the
Japanese people, especially the younger generation.20 All these ini-
tiatives, though coming from different directions, had a strong impact
on the introduction of the principal ideas of modern labour law on
the one hand, and the development and rapid implementation of
modern labour laws on the other. Of course, one of the precondi-
tions of this development had been the measures taken for economic
deconcentration intended to break the economic and financial power
of the large companies, as well as a consequent land reform programme
19
SCAP was also used as a reference to the supreme commander, General
MacArthur of the U.S.
20
P. Duus, The rise of modern Japan (1976), p. 245.
labour legislation and development ww ii 555
21
See S.-J. Park, U.S. Labor Policy in Post-war Japan (1985), p. 13.
556 labour law
22
S.-J. Park, p. 29.
23
I. Katò, Kodanshas Encyclopedia of Japan, vol. 7 (1983), p. 255.
558 labour law
24
S.-J. Park, p. 60.
labour legislation and development ww ii 559
25
S.-J. Park, p. 61.
560 labour law
26
K. Sugeno in Kodanshas Encyclopedia of Japan vol. 4 (1983), p. 349.
labour legislation and development ww ii 561
ation (chòtei ) and arbitration (chùsai ).27 Conciliation is the most infor-
mal of these procedures, conducted through conciliators designated
by one of the nation’s Labour Relations Commissions, established
by the Trade Union Law. Mediation, a more formal procedure, is
performed by a mediation committee established by a labour rela-
tions commission, with representatives from labour, management and
the public. This committee is expected to present mediation pro-
posals to the affected parties. Settlement proposals developed in either
mediation or conciliation have no binding power over the parties to
the dispute. Settlement can only come about through the voluntary
compliance of the parties.
In contrast, the third type of dispute resolution procedure, arbi-
tration, results in settlement decisions that are binding on the par-
ties. Arbitration is performed by an arbitration committee, which is
established by a labour relations commission and is composed of
members of the public. Arbitration procedure occurs only with the
consent of both parties; compulsory arbitration is not practiced in
Japan. One exception only concerns the so-called emergency rec-
onciliation (kinkyù chòsei ), added in 1952. If a strike will seriously
damage the national interest or popular livelihood, the prime min-
ister is authorized by the law to suspend a dispute for up to 50 days
(Art. 35–2–35/5; 37, 38 Labour Relations Adjustment Law).
The purpose of this law was to facilitate the smooth operation of
the new system of labour relations to be created under the Trade
Union Law. Its function must be seen together with the fundamental
changes that took place in Japan after its promulgation: the first
freely held general elections on April 10, 1946 brought forth a mul-
tiparty system, and unions and their memberships increased tremen-
dously from 379,631 workers organized in 508 unions in December
1945 to 3,813,665 members in 12,923 unions in July 1946.28 The
rapid unionization encompassed not only workers, but also employ-
ees in management ranks and, in some cases, even the employers
themselves; this set the dominant pattern of post-war unionism as the
“enterprise unions” became the basic unit of labour organisation.29
27
(when used in civil proceedings, chòtei means conciliation).
28
Ayusawa, History of Labor, p. 258; E. Harari, The Politics of Labour,
p. 55/56.
29
Harari, p. 56.
562 labour law
The third pillar of modern Japanese labour law was built up with
the promulgation of the Labour Standards Law (Ròdò Kijun Hò ) in
April 1947, which was enforced on September 1, 1947. In conse-
quence of the provisions of Article 27 of the Constitution this law
stipulated protection for women and young people and set minimum
standards for terms and conditions of all individual and collective
employment contracts. Minimum requirements cover prior notice in
case of firing, fair standards for wages and working hours, safety and
hygiene in plants and other places of business, and the employer’s
duty to provide workers with compensation for accidents at work.
The law stipulated further that working conditions must be agreed
upon bilaterally on an equal level, and it prohibited discriminatory
treatment of workers, forced labour and exploitation.
4. Postwar Changes
The above mentioned, so called “three labour laws” are still the
basis of today’s Japanese legal framework for labour relations. Together
with the labour-related provisions of the new Constitution, they
expressed the will for democratization and the guarantee of equal
rights for everybody. Therefore, initially, the emancipation and pro-
tection provided by the three laws were to cover all workers, with-
out distinction against public employees and workers in public utilities.
But changes in the political attitude of the US, especially the
intensification of the Cold War, brought serious change to the hitherto
labour legislation and development ww ii 563
30
Judgement April 25, 1973 keishù 23–5–305.
564 labour law
31
Sugeno, p. 9.
32
Sugeno, pp. 9–10.
33
Ariizumi, p. 98.
566 labour law
34
Japanese Private Sector Trade Union Confederation.
568 labour law
company which was sued for refusal to employ a person who had
taken part in a students political movement and did not disclose this
fact during the interview, prevailed in this trial.35
The problem of sex discrimination has been excluded from Art.
3 of the LSL and treated in Art. 4, but reduced to a very narrow
scope of application, covering only wages. It has therefore, not been
held against the LSL, if female workers are not given positions as
high as those of male employees, or are not admitted to career
courses, and therefore receive lower wages. Only ten years after
International Women’s Year in 1975, and five years after the UN
Convention on the elimination of all forms of discrimination against
women in 1980, the Law for Equal Opportunities in Employment
of Women was adopted in 1985,36 coming into force April 1, 1986,
the same year that the UN Convention was ratified.
The new law may have brought more self-consciousness to work-
ing women, but as the elimination of discrimination in employment,
positioning and promotion was provided as a target, rather than as
a legally binding requirement,37 there is ongoing criticism of the lack
of effective means to ensure the implementation of this law, which
is by and large in major points—left to the goodwill of the employer.
One major purpose in the international comparison of labour law
development is concerned with working hours, since Japan is still
the leading nation in the world in this field, with its peak reaching
in 1960 with an annual 2432 hours. Due to a reduction in regular
working hours as a result of high economic growth and increased
productivity the overall working hours of Japanese workers declined
to 2064 hours in 1975, to increase again slightly in the following
period of stable economic growth.
All these figures have to be looked at as average numbers; actual
working hours decreased the greater the size of the enterprise. In
December 1986 the Central Labour Standards Council therefore
proposed a new draft and with the support of the Ministry of Labour
major changes in working hours legislation were achieved, which can
be summarized under the following points: formulation of a 40-hour
35
So-called Mitsubishi Jùshi-Case, Supreme Court Judgement December 12, 1973;
minshu 27–11–1536.
36
Law No. 4/5 of 1985; it actually has been a fundamental amendment to the
law on the Welfare of Working Women of 1972.
37
H. Oda, Japanese Law, p. 325.
labour legislation and development ww ii 569
38
K. Sugeno, Japanese labor law, p. 212.
CHAPTER SEVEN
SOCIAL LAW
Wilhelm Röhl
(1) Although we shall observe that for a long time social security
was not considered the task of the State, there was from an early
period some relief for sick people on a very small scale. The famous
Prince Shòtoku (574–622) is said to have, on the occasion of the
construction of the Shitennò-temple at Naniwa (now Òsaka) in 593,
founded a hospital called Seyakuin = place for the charitable treat-
ment of sick poor patients.1 The hospital was then situated at Heiankyò
(now Kyòto); the staff consisted of administration officials and a physi-
cian. They also looked after abandoned children.
1
Kanesuke Fujiwara (877–933), Shòtoku taishi denryaku (Reports on Prince Shòtoku),
year of publication unknown. Not every detail is reliable. But it seems to be sure
that in the early Heian period (9th century) the hospital was operating.
a short historical reminiscence 571
2
Vol. 13, chapter ‘Koishikawa’, heading ‘Ryòbyòin’ (hospital).
3
1716–1736.
4
Literally: place for health fostering.
5
Nihon hòseishi ( Japanese Legal History), 1912, p. 546 et seq.
6
Machi’i(sha): not a medical officer in the service of an authority but indepen-
dently practising for the common people of a certain district.
7
10 January 1723 of the western calendar.
572 social law
and ophthalmic diseases. After the end of the bakufu regime it was
renamed ‘Hospital for the Poor’ (Hinbyòin) and put under the con-
trol of the Chinshòfu8 but soon afterwards abolished. The site of the
hospital became part of the area of the botanical garden of Tòkyò
University.
(2) Not only sick people but also persons in need might receive
public support. In case of disaster, epidemic, famine and the like the
ancient emperors granted relief by distributing victuals and, chiefly,
tax exemption. The codes of the 8th century regulated tax exemp-
tion according to the amount of damage when flood, drought, pests
or frost had caused crop shortfall. There were rules concerning the
treatment of sick, widowed, forlorn, poor or old persons too who
were not able to sustain themselves.9 Always the kin came first in
supporting; if there were no relatives or they were poor the village
community was obliged, and the charity of the State was the last
resort. This principle remained in force until modern times. Charitable
deeds of the regents in the Kamakura period (1185–1333) have been
reported in documents of that time, and after long years of wars
between the feudal lords the heads of the Tokugawa clan supported
the cause of charity among the people, opened the rice granaries
for the persons in need and gave loans of money. The hospital for
poor patients has been mentioned above.
8
An office of the new government for the administration of thirteen domains
which had come under the jurisdiction of the Court with the restoration. The office
existed for but a few months in 1868.
9
In detail: M. Toshimitsu, Ritsuryò oyobi ryòsei no kenkyù (Study of the Early Laws
and the Administrative and Civil Legal System), 1959, p. 241 et seq.
10
A comprehensive study of the development of the Japanese system is to be
found in Masaaki Ogawa, Shakai hoshòhò (Social Security Law), in Kòza Nihon kindaihò
hattatsushi (Lectures on the Development of Modern Japanese Law), vol. 1, 1958,
pp. 163–248. It is not referred to specifically hereafter for citation purposes, it has
been consulted throughout.
social security⁄insurance law 573
(i) The very old institution of mutual aid among the people was
based on a group of persons. The group consisted of men who had
got together and committed themselves to help each other in case
of emergency. In rural areas, for example the farmers lent workers
to each other if the neighbouring farmer could not plant or harvest
without assistance ( yui ). There were also clubs whose members
granted financial aid mutually (tanomoshikò, mujinkò ). Especially in the
Edo era, mutual aid was part of the responsibility of the five-family-
neighbourhood unit11 instituted by order of the government. The
collective term for these groups is ‘neighbourhood system’ (rinposeido),
and mutual aid was one of its fields of activity. In the Meiji era
‘neighbourhood’ meant not only a block of neighbouring houses but
extended over the whole commune.
(ii) From time immemorial mutual aid was a characteristic of the
family. In this respect, ‘family’ means all the persons whose name has
been entered in the family register—a much greater circle than the
modern family which usually consists of husband, wife and children.
Those formations were regarded as good morals and manners and
considered more important in social life than relief run by the state.
With reference to the old good morals the Meiji authorities for a
long time managed to avoid being officially committed to care for
people in need and prepare a legal system of social security.
However, also in the Edo era single cases of extreme poverty
occurred, especially after disasters like fire, earthquake, flood, and
crop failure, in which the authorities had to help—not out of respon-
sibility but for fear of disturbances. Forms of help were financial aid,
loan of money or rice, distribution of rice, free meals, emergency
accommodation.
The new Imperial government, for the moment, continued prac-
tising the policy of the former regime and on 6 April 1868, the day
of the proclamation of the ‘Charter Oath of Five Articles’,12 it erected
five notice boards.13 On the first board was written:
11
Goningumi. See George Sansom, A History of Japan, vol. III: 1615–1687, 1964,
p. 101.
12
An abstract outline of political principles. Text in Ryòsuke Ishii, Meiji bunkashi,
2, Hòseihen (Cultural History of the Meiji era, vol. 2: Legal System), 1954, p. 109,
translated by William J. Chambliss, Japanese Legislation in the Meiji Era, 1958,
p. 145.
13
Tatefuda: a board in the street on which orders of the government and new
laws were written and thereby made public.
574 social law
14
Father-son, master-servant, husband-wife, brothers (old-young), friends. Confucian.
15
Text in Nihon shiryò shùsei (Compilation of Japanese Historical Materials), ed.
Heibonsha, 1956, p. 492.
16
After the fall of the bakufu the territories under direct control of the Shògun
had been reorganized into 9 urban and 15 rural prefectures in 1868 besides which
273 areas remained clan territories until 1871.
social security⁄insurance law 575
that must not be left unnoticed at the moment will from now on for
fifty days at the most be taken care of by the nearest district accord-
ing to the following rules. Details are to be reported to the Ministry
of the Interior, orders will be dispatched.
Relief Regulations
(1) To the poorest persons that are forlorn and unfit for work because
of chronic disease will be apportioned rice at the rate of one koku eight
to (about 300 litres) per annum. Even if the person in question is not
uncared for the preceding rule will be applicable in case the other
members of his household are seventy years of age or older or fifteen
years or younger and themselves poverty stricken because of chronic
disease.
(2) Likewise: to the forlorn persons of seventy years of age and older
that are unfit for work because of severe illness or old age will be
apportioned rice at the rate of one koku eight to per annum. Even if
the person in question is not uncared for the preceeding rule will be
applicable in case the other members of his household are seventy
years of age or older or fifteen years or younger and themselves poverty
stricken because of severe illness or old age.
(3) Likewise: to the forlorn persons that are unfit for work because
of illness will be apportioned three gò (about 0.54 litres) of rice for
men or two gò (about 0.36 litres) of rice for women daily. <Clause 2
corresponds to the above clauses appropriately modified.>
(4) Likewise: to forlorn persons of thirteen years of age or younger
will be apportioned rice at the rate of seven to (about 126 litres) per
annum. <Clause 2 corresponds to the above clauses appropriately
modified.>
(5) The price of the relief rice shall follow the local market-price of
low-quality rice in the previous month.
The weak point of the Regulations was that it was the ministry which
had to decide about each single case, however insignificant it was.
The regional officials were not authorized to settle the matter and
since there was no standard concerning the decision-making of the
Ministry the regional officials sometimes must have been at a loss as
to how to handle applications adequately. The Ministry of the Interior
planned to prepare instructions for approval, but the Finance Ministry
opposed any competence of regional officials to spend public means.
The preamble of the Regulations made it clear that help by the
family or the neighbours, in short: fellow subjects, had to come first.
As principally only forlorn people, i.e. men, women or children with-
out family or neighbourly ties, would get relief and, moreover, they
needed be unfit for work, most of the poor did not receive any sup-
port from the state.
576 social law
17
The population was registered since the 7th/8th century in the whole of the
country. Objects of registration in the regional register were the basic units of the
village, the ‘houses’ (ko) with all their members and the economic circumstances.
That system, at times modified, has remained in force until now; the Family
Registration Law of today dates from 1947 and takes into account that the old
‘house’-system was abolished after World War II.
‘Domicile’ is the base and centre of life in the sense of art. 21 of the Civil Code.
‘Residence’ is the home which is not the base and centre of life. When a per-
son stayed at a place beyond the limits of the place of his main registration for
more than 90 days that place was supposed to be his residence.
18
M. Ogawa (note 10) at 120.
social security⁄insurance law 577
(1) The tax that hitherto had been assessed according to the yield
of the land was now to be assessed according to the value of
the land.
(2) Instead of collecting the tax in kind it was to be collected in
money.
(3) The tax rate was fixed at three per cent (in 1877 lowered to
two and a half per cent).
(4) Instead of the farmer the owner of the land19 was to be the tax
payer.
In principle, the tax rate, compared with the former one, had not
been diminished but the new mode of assessment—value of land
instead of yield—created distress when crop failure caused by nat-
ural phenomena left the peasant without means.
Unlike the relief granted to the poorest it was regarded as the
duty of the state to make provision for such emergency. In 1871
and 1875, the government issued Rules of Temporary Relief for
Poor People (Kyùmin ichiji kyùjo kisoku) which provided for small
amounts of money as aid. In 1877 the government decreed that no
one would be allowed to delay paying the tax unless all the villagers
were affected by the crop failure, and also in this case the damage
must amount to more than one half of the yield fixed at the time
of the land tax reform. If payment of the tax was delayed with per-
mission of the authorities, it was to be expected that by adding the
tax falling due next the burden on the land would increase contin-
ually with the result that the land would go down in value. There-
fore the Ministry of Finance, on recommendation of the adviser
Paul Mayet, proposed the Law for a Famine Relief Fund (Bikò
chochiku hò ) which was enacted in June 1880 and enforced from
1 January 1881.
Under this law persons in need who had become victims of extra-
ordinary crop failure or unforeseen mishaps were supplied with means
for food, emergency accommodation, farm implements and seeds.
Landowners who because of the mishap could not pay the land tax
got subvention or a loan—there was no tax exemption. Although
19
The new Meiji government rather early paved the way for a western system
of ownership. In former times private ownership of land was forbidden or extremely
restricted. The right to use a plot of land in connection with possession of it was
of greater importance than ownership. By 1872 land sales and transfers were lib-
eralized and peasants obtained land titles.
578 social law
rejected both the initial and amended drafts since it was not willing
to institute a public duty to grant relief and refused to load the com-
munes with an additional burden.
(b) In 1897, four members of the House of Representatives intro-
duced two Bills relating to a relief law ( Jukkyùhò ) and a poor rates
law (Kyùhinzeihò ). They argued: “In view of the hardening practice
of the capitalists to employ workers at only low wages we are con-
vinced that now a balancing out of poor and rich should be con-
templated and that the defence against future disaster may not become
the burden of the poor alone”. The idea was to realize the con-
ception of Shinpei Gotò who as the chief of the Public Health
Division of the Ministry of the Interior had in vain proposed the
establishment of poorhouses and a health insurance system.20 The
draft of a relief law took up Gotò’s view and recommended in prin-
ciple the duty of the commune of the needy person’s whereabouts
to help young and old, forlorn, invalid and sick individuals. The
means were to be collected from government subsidies, contributions
of benefactors and a general and equal tax of one Sen (penny) per
month and household. The poor rates law was intended to intro-
duce a municipal poor relief tax for the sole purpose of providing
money for the government’s subsidies.
The Bills were never put on the agenda of the diet.
(c) Another severe crisis arose in 1900/01. More than 20,000
female spinners lost their jobs. In May 1901 the founding of the first
Socialist Party of Japan (Shakaiminshutò )21 was announced to the author-
ities, which at once ordered its dissolution.22 The disturbances in the
villages continued and migration into the cities increased. In February
20
Gotò had in mind to found a relief organization for the soldiers disabled in
the Sino-Japanese War 1894/5. The means for that and the above mentioned plans
were to be raised from the reparations China had paid to Japan. Gotò submitted
a memorandum about it but was not successful. Then he suggested that the upper
social class should make contributions and pay a special tax, the state and the self-
governing bodies should give subsidies and the people should be burdened by a
general tax.
21
This Social Democratic Party, not to be confounded with the Shakaiminshùtò
(Social People’s Party) 1926–1931, had forerunners in the form of a ‘Society for
Studying Socialism’ (Shakaishugi kenkyùkai ) 1898 and a ‘Socialist Association’ (Shakaishugi
kyòkai ) 1900.
22
From February 1951 to July 1952 a political party existed under the same
name.
580 social law
23
Widow of Emperor Kòmei, the father of Emperor Meiji.
social security⁄insurance law 581
– Law for Cash Assistance to the Disaster Stricken (Risai kyùjo kikin
hò ) of 1899, law no. 77. This law took the place of the Law for
a Famine Relief Fund.
– Law Concerning the Disposition of Travellers Falling Sick or Dead
While Travelling (Kòryo byònin oyobi kòryo shibònin toriatsukai hò ) of
1899, law no. 93.
– Law for the Care and Custody of the Mentally Ill (Seishinbyòsha
kango hò ) of 1906, law no. 38.
– Law for the Prevention of Leprosy (Rai yobò hò ) of 1907, law
no. 11.
The Law for Cash Assistance to the Disaster Stricken, for instance,
did not include any specific article on poor relief, but even such a
law, because of the lack of a general poor relief law, was regarded
as a substitute for relief rules. Insofar as relief regulations were
included in the said laws the application of those regulations was
restrained by the cost-cutting policy and the priority of relief by the
family.
(e) There was a group of people which experienced special con-
sideration by the government. When the Russo-Japanese war had
broken out an Imperial Edict on Relief for the Families of Non-
Commissioned Officers and Common Soldiers (Kashi heisotsu kazoku
kyùjo rei ) was issued on 2 April 1904. It decreed that the families of
non-coms and soldiers who fought in the war were to be supported
if they were unable to carry the cost of living because of the absence
of the breadwinner. In these cases, too, the prevailing principle of
the priority of familiar and neighbourly relief was in force. Although
the edict clearly declared the public responsibility for relief the dis-
trict authorities had to enquire whether there were persons obliged
to pay maintenance. Besides, the authorities were afraid that public
responsibility would be considered valid generally in favour of the
poor, and therefore indicated that such an extension was out of
the question.
(f ) When in connection with the crises and disturbances at the
beginning of the 20th century socialist ideas began to gain ground
the government, apart from suppressing any movement of that kind,
tried to block an opposition determined by class spirit with the help
of social policy. On the one hand it reduced public expenditure on
poor relief to a very low level in order to subjugate the poor classes
and strengthen the power system. Moreover, it shifted the commitment
582 social law
24
M. Ogawa (note 10) at 205.
25
Kazoku kokka, in detail: Takeshi Ishida, Meiji seiji shisòshi kenkyù (History of
Political Thought in the Meiji Era), 1959, 6–216. The base of the ideology was the
Imperial Rescript on Education of 30 October 1890, the text of which is recorded
in R. Tsunoda/W.T. de Bary/D. Keene, Sources of Japanese Tradition, 1959,
p. 646.
social security⁄insurance law 583
26
Tomoko = miner who had gone through a regular training, come of age and
got a diploma as a qualified miner.
27
Father (oyabun)—son (kobun) connection which has been transferred from fam-
ily relationship to other social groups.
28
The law took up the significant statement of the ‘Directions for the Mining
Industry’ (Kògyò kokoroe) of 1872 and declared all minerals owned by the govern-
ment. Private persons would get permission to mine as contractors only and were
limited to fifteen years.
584 social law
1916 which defined the relief in detail. It pursued the former char-
acteristics of relief and therefore did not offer complete security.
These conditions and the delay of the Factory Law led to the
growing importance of mutual benefit associations (kyòsai kumiai ), which
had existed since 1887. They were relief organizations of the employ-
ees, beginning with a few branches of industry—first in the spinning
mills. The associations were sponsored by the employers. A good
example was the Kanebò Mutual Benefit Association (Kanebò kyòsai
kumiai ), founded on 8 May 1905, prompted by Sanji Mutò, the pres-
ident of Kanebò29 who had seen such a welfare institution in the
German Krupp steelworks. Every employee of Kanebò contributed
3 per cent of his monthly wages into a fund and the firm doubled
the amount of the payment. Sick or injured employees—in case of
death their family—old members and employees of many years’
standing were supported out of the fund. The association was a fore-
runner of a workers’ insurance system.
Relief funds modelled on the mutual benefit associations were set
up also in state-owned enterprises, first with the national railway in
April 1907. Other state-owned establishments followed on, e.g. the
outdoor staff associations of
the Monopoly Bureau, 1908,
the Printing Bureau, 1909,
the Taiwan Railways, 1909,
the Communication Office, 1909,
the shipyards and arsenals of the navy, 1912.
All these mutual benefit associations, fourteen in all,30 were founded
by Imperial edict (chokurei ) without parliament’s involvement. The
associations did not have the character of legal persons, their con-
siderable funds were administered by the bureaucracy, and the mem-
bers were not entitled to a say in their management.
More and more private firms, encouraged by those associations,
developed relief organizations which worked according to the same
principles. With regard to the employees there was a weak point:
since the firm contributed to the fund equally and managed the relief
29
Kanebò is an abbreviation of Kane-ga-fuchi bòseki gaisha (Kane-ga-fuchi Spinning
Company; Kane-ga-fuchi is a quarter in Tokyo).
30
Kinjirò Shimizu, Shakai hoken hò (Social Insurance Law), in Jurisuto ( Jurist) no.
100, p. 101.
586 social law
31
The famous legal scholar Nobushige Hozumi in his ‘Treatise on Retirement’
(1915) argued that the old people clearly were members of society and had the
right to claim the means for their living from society.
32
The maximum amount in kind or money should be 15 Sen per person or 60
Sen per family daily. M. Ogawa (note 10), p. 223.
social security⁄insurance law 587
of relief by the family, and the applicant was even permitted to make
a complaint to the Minister of the Interior, but the authorities used
to prevent him from complaining in order to avoid letting the relief
be regarded as a ‘right’.
(2) Under the Law Concerning the Disposition of Travellers Falling
Sick or Dead While Travelling, law no. 93 of 1899 (see above), the
prefectures had to bear the costs of relief if the commune or the
person obliged to pay maintenance were without means. Since pre-
fectures with big cities where the roving people flocked together were
overburdened and the distribution of burdens became unjust, the
treatment of the needy grew to be negligent.
In parliament, the ‘Party of Friends of Constitutional Polities’
(Rikken seiyùkai) and the ‘Party of the Constitutionally Like-Minded’
(Rikken dòshikai ) made motions in 1915 and 1916 concerning the pay-
ment of the costs of poor relief from the treasury. The motions as
well as an amendment to limit the payment from the treasury to
roving people of unknown family register and residence were approved.
The resolutions of the diet which were intended to prevent danger-
ous ideas like socialism were not translated into action because the
Ministry of Finance objected for lack of money. Anyhow, the occur-
rence indicated the tendency of political circles to engage the state
in welfare activities better.
(3) The Factory Law which had come into force on 1 September
1916, and the statutory instrument (Kòjòhò shikkò rei ), Imperial edict
no. 193 of 3 August 1916, as well as the Mining Industry Law of
1905, had ruled that the surviving family of the worker who had
died due to an accident at work should get relief. The wife of an
unregistered marriage was not a member of the family. When the
Supreme Court had decided that the common-law husband was
obliged to maintain the common-law wife the Factory Law and other
laws were amended so that the relevant regulation read: “. . . sur-
viving family and the person who at the time of the death of the
worker was supported by the deceased”. Under the new clause (law
no. 33 of 1923) the common-law wife was eligible for relief. On the
occasion of this reform the original clause that the employer was
released from his obligation to grant relief if the accident was due
to the worker’s gross negligence was abolished, with the result that
a fault of the worker did not make any difference. But in 1925 an
amendment (Imperial edict no. 153) to the statutory instrument
inserted art. 7–2 under which the employer, with permission of the
588 social law
chief of the prefecture, could free himself from payment for the loss
of wages and accident compensation if the injury or illness was due
to gross negligence of the worker. Apart from that a great number
of workers and their survivors were without protection since the
Factory Law was not applicable to enterprises with fifteen workers
or less, or to building, transport, or traffic workers and heavy labour-
ers. Moreover, for lack of sufficient control it was doubtful to what
degree the law was realized in other industries.
(4) The desperate situation of the workers, farmers and employ-
ees during and after World War I produced a change in the death
and sick rates for the worse.33 Aside from measures to promote pub-
lic health it became necessary to safeguard the people against the
results of illness. So, the idea dawned on the authorities that the
time had come to create a social insurance system.
The first attempts were limited to a relatively small area and, in
general, covered accidents at work only. Actuarial calculations were
applied, for the first time, to the annuities from the National Railway
Mutual Benefit Association in 1918. Medical treatment of the poor
at the expense of the treasury was granted in the case of tubercu-
losis, mental illness, or trachoma: Law for the Prevention of Tuber-
culosis (Kekkaku yobò hò ), Law for Mental Homes (Seishinbyòin hò ), Law
for the Prevention of Trachoma (Torahòmu yobò hò ), all of 27 March
1919. But the establishments and the financial means under these
laws were insufficient and the principle of relief by the family cast
a shadow over their implementation. When the dissatisfaction of the
masses grew deeper and the turbulence increased, industrial action
expanded and the rice riot occurred in August 1918. The original
workers’ movement became a mass movement, a sign of which was
the May demonstrations from 1920 on.
The Constitutional Party (Kenseikai )34 had set up a committee for
the investigation of political affairs. This committee was the first insti-
33
M. Ogawa (note 10) p. 224. The death rate went up from 21.4 per thousand
in 1917 to 26.9 in 1918; the birth rate decreased slightly; the rate of death due to
tuberculosis went up from 21.2 per ten thousand in 1914 to 25.3 in 1918. The
number of mentally ill persons increased rapidly: 44,425 in 1916, 64,934 in 1917,
and the number of persons afflicted with trachoma is said to have reached 10
million.
34
The word ‘constitutional’ (kensei or rikken) was part of the denomination of sev-
eral political parties. Some of them called themselves ‘society’ (kai ) which in the
political sphere means the same as tò (party). The Kenseikai was founded in October
social security⁄insurance law 589
– 1920: the wartime boom collapsed, the economy was out of order,
social problems became extremely serious.
– 1922: financial difficulties of the banks because of relief actions
for the economy.
– 1923: earthquake in the Kantò area with severe economic after-
math.
– 1927: another bank crisis and period of slump.
– 1929: world economic crisis.
Social workers hoped for a reform of the Relief Regulations and no
longer regarded neighbourly relief as being in keeping with the times.
The government too, under the pressure of tense social conditions
since the rice riots of 1918, set about preparing legislative measures
and established committees one after the other for the study of relief
work. The third committee in 1927 decided on a ‘System of General
Relief ’ and laid down essential points about care for the poor. The
government made a draft on that basis, including reference to west-
ern legislation, and introduced the Bill in 1929. It passed both houses
of parliament and was promulgated as ‘Relief Law’ (Kyùgohò ) on
2 April 1929.
Art. 1 of the law read:
The persons hereinafter listed will, if because of poverty they are unable
to defray the costs of their living, be supported according to the pro-
visions of this law:
1. Old and infirm persons aged 65 and over.
2. Youths aged 13 and under.
3. Pregnant women and nursing mothers.
4. Crippled, sick, injured and other persons who because of mental
or physical damage are unable to work.
Clearly, relief was now a public obligation; generally the state
had to bear up to half of the costs, the prefectures and the com-
munes at least one quarter each. Public money was to be spent
on living, medical treatment, childbirth, taking up occupation,
funeral. Many details were left to an Imperial edict (chokurei ). Compared
with the Relief Regulations the law aimed at improvement of wel-
fare conditions, but the old customs and traditions, namely familial
and neighbourly help, were still alive in the people’s mind. In order
to ward off a rights consciousness of the people the law was inter-
preted as not saying that the relief was based on a right of the poor
but only on the responsibility of the subordinate authorities to the
592 social law
State.37 With regard to the poor the relief was a mere ‘benefit as a
legal reflex’.
The implementation of the Relief Law was incumbent on the may-
ors of the communes who were assisted by social welfare commis-
sioners (hòmen i’in), arts. 3 and 4.38
Since the government found it difficult to raise the costs of imple-
mentation of the law (estimated at 4 million ¥) the law came into
force no sooner than on 1 January 1932. It caused the relief activ-
ities to expand considerably: in 1931, under the old Relief Regulations,
30,534 persons on relief were supported and the costs amounted to
a total of about 620,000 ¥; in 1932, under the Relief Law, there
were 163,416 persons on relief and the costs amounted to a total of
3,646,260 ¥.
7. Prior to 1945 other legislative steps were taken.
(1) On 29 October 1919 the First International Labour Conference
opened in Washington, from which appeals were sent out to solve
the problems of mass unemployment. In Japan, the labour move-
ment demanded measures and an insurance against unemployment.
But the maxim ‘return to the country’ was prevailing and the gov-
ernment did hardly anything to yield to the international and domes-
tic pressure. With great difficulty two laws were passed by the diet:
Employment Exchange Law (Shokugyò shòkai hò ) in 1921 and Seamen’s
Employment Exchange Law (Sen’in shokugyò shòkai hò ) in April 1922,
under which employment agencies were established.
The Constitutional Party (Kenseikai ) introduced two bills relating
to an unemployment insurance in the 45th and 46th session 1922/23,
37
Ken’ichirò Nishimura; Recht der sozialen Sicherheit (Social Security Law), in
P. Eubel and others, Das japanische Rechtssystem (The Japanese Legal System),
1979, p. 376.
38
The institution of social welfare commissioners had developed on the initia-
tive of the prefect of Osaka when the rice riots had broken out in 1917/18 and
later on had spread all over Japan. The prefect or mayor appointed five to ten
skilled and experienced benefactors honorary commissioners. Mainly in poor quar-
ters they investigated the circumstances, distributed money and articles, gave advice
to welfare institutions and initiated discussions about lifestyle. For example, in 1930
there were more than 30,000 social welfare commissioners who took action in over
1,120,000 instances.—After World War II the commissioners were renamed minsei
i’in, verbatim ‘people’s life commissioners’, first by an imperial ordinance in 1946
and two years later by the Law for People’s Life Commissioners (Minsei i’in hò ) of
29 July 1948. For hòmen i’in see Nihon kindai jiten (Dictionary of Japanese Modern
History), published by Tòyò keizai shinpòsha, 1959, p. 557.
social security⁄insurance law 593
but both sessions closed before the debate on the bills had come to
an end.
When the industrial actions intensified some big cities took up
unemployment relief for day labourers. Besides, relief organizations
sowed the seeds of unemployment insurance:
– the workers’ relief organization of Osaka began to support unem-
ployed persons in September 1925, likewise
– the workers’ insurance association of Kòbe in January 1926,
– the workers’ relief organizations of Tokyo in February 1930 and
of Nagoya in May 1931.
Between the bank crisis of 1927 and the world economic crisis of
1929 the unemployment problem worsened and the situation of the
agriculture became disastrous so that the maxim ‘return to the coun-
try’ as a solution of the problem could no longer be maintained. In
the campaign before the election of the prefectural councils in
September 1927 the trade unions agreeing with the Japanese Labour-
Farmer Party (Nihon rònò tò ) began a crusade for five laws:
i. an unemployment benefit law (shitsugyò teate hò ),
ii. a minimum wage law (saitei chingin hò ),
iii. an eight-hour labour law (hachijikan ròdò hò ),
iv. a reform of the Health Insurance Law of 1922 (Kenkò hoken hò )
v. a law for the protection of female and juvenile workers ( fujin
seishònen ròdòsha hogo hò ).
The main points were that the minimum wage should be 2 ¥ 50
Sen a day, that the unemployment benefit as well as the health insur-
ance benefit should be in proportion to the wage and that all this
should apply to everyone without discrimination based on prejudice
as to sex, age or ethnic origin.
At that time the government pushed forward the oppression of
the workers’ movement and tightened the Law for Maintenance of
Public Peace (Chian iji hò ). With regard to relief activities it initiated
the Relief Law, and the Ministries of the Interior and of Finance
sent a circular “Re: Regulation of the business of unemployment
prevention and of relief ” dated 3 October 1929 to the chiefs of the
regional authorities. The instructions were not progressive and the
result was that most of the unemployed people did not have any
choice but to return to the country where they would be left to
neighbourly and familial charity. Nothing more came of the call for
594 social law
39
Also read: (first name) Tsuyoki, Ki, Takeshi; (surname) Inugai.
social security⁄insurance law 595
40
Supra note 38.
41
Soldiers’ Relief Law (Gunji kyùgo hò ) of 1917, afterwards amended and renamed
Soldiers’ Aid Law (Gunji fujo hò ); Personal Service Drafting Ordinance (Kokumin chòyò
rei) of 1939, amended in 1941; Medical Personnel Drafting Ordinance (Iryò kankeisha
chòyò rei ) of 1941; Wartime Accident Relief Law (Senji saigai hogo hò ) of 1942.
596 social law
42
Sometimes this name is used in the literature for the previous law of 1941.
43
Employed in business with at least five workers, except people working with
the public administration, seamen and some others.
44
Employed in business with less than five workers.
45
Persons who temporarily had lost the qualification to be insured (mainly because
of unemployment) could, against payment of the premium, maintain the insurance
in order that previous premiums were not paid in vain.
social security⁄insurance law 597
(i) Old-age pension ( yòrò nenkin), arts. 31–35 of the law. He who
had been insured for at least twenty years (miners fifteen years)
received from the age of 55 (miners: 50) a pension for life. The
amount was calculated from a percentage of the average regular
wages during the period of insurance, and extra payments for a
longer insurance period or a long time of employment with the
same firm. The upper limit was 50 per cent of the average regular
wages.
(ii) Disablement pension (haishitsu nenkin, later called shògai nenkin),
arts. 36–43. If the insured became ill—unfit for work—and could
not recover he received a disablement pension, the amount of which
depended on the degree of disability and the period of insurance
until the event. Extra payments were granted for the wife and chil-
dren. In case of a lesser degree of disability the insured got pecu-
niary aid (haishitsu teatekin).
(iii) Survivor’s pension (izoku nenkin), arts. 44–47. This benefit was
limited to ten years after at least 20 years of insurance. The amount
was 50 per cent of the old-age or the disablement benefit respec-
tively which the deceased had received or (in case of old-age pen-
sion) would have received after having been insured for at least 20
years. The circle of survivors entitled to receive the pension and
their order were to be regulated by Imperial ordinance. If the per-
son entitled had died and there was no regular successor the other
survivors received a lump sum as settlement (izoku ichijikin).
(iv) Pecuniary aid in case of withdrawal from the insurance rela-
tions (dattai teatekin), arts. 48–51. This allowance was paid instead of
an old-age pension if the retiring person had been insured less than
20 years, but the minimum period of insurance must have been
three years.
(v) By the amendment of 1944 a pension for widows (kafu nenkin)
and widowers (kanpu nenkin) was introduced. The amount of it cor-
responded to only two months’ wages according to the average reg-
ular wages which were the standard in every respect. This benefit
was paid in the case of death of a person who had been insured
for a period of at least six months but less than 20 years.
8. Soon after the end of World War II it became obvious that
the individual lines of social insurance in Japan got into difficulties
because of uneconomicalness, ponderous management and increas-
ing expenses, all caused by an accumulation of losses owing to ama-
teurish operations and non-payment of insurance contributions, as
598 social law
46
The development in the first ten years after World War II has been explained
by K. Shimizu, Shakai hoken hò (Social Insurance Law) in Jurisuto ( Jurist), 1956. no.
100, pp. 101–103.
47
The Factory Law of 1911 was repealed.
social security⁄insurance law 599
48
dekidakabarai, Labour Standards Law art. 27 as amended in 1951.
49
The Workmen’s Accident Relief Law and the Law for Insurance Against
Responsibility for Workmen’s Accident Relief of 1931 were repealed as their sub-
jects were taken up by the new laws.
600 social law
(ii) On 2 June 1951 The Accident Compensation Law for the National
Public Service (Kokka kòmuin saigai hoshò hò ), which regulated the
compensation after an accident on duty, was enacted.
(iii) Particular mutual aid associations were established for
a/the educational personnel of private schools (Shiritsu gakkò
kyòshokuin kyòsai kumiai hò ) of 21 August 1953, and
b/the municipal public service (Shichòson shokuin kyòsai kumiai hò )
of 1 July 1954.
Under both laws the same benefits as under the Law on the National
Public Service Mutual Aid Association were granted.
Within the health insurance system there were two groups of
insured persons: the workers under the Health Insurance Law of
1922 and all Japanese nationals according to the National Health
Insurance Law of 1938. The losses at the insurance associations of
the latter were still greater than those at the health insurance asso-
ciations and in 1947 many of them discontinued business. From 1948
steps were taken to reorganize the social insurance system. As men-
tioned above, in 1948 the mutual aid associations of the departments
were integrated into the National Public Service Mutual Aid Asso-
ciation, and regarding the national health insurance management by
the municipalities was made a principle—hitherto associations had
been responsible; the insurance became compulsory. Payment trans-
actions were simplified in 1951.
The welfare pension insurance too, on account of the inflation
after the war, could no longer perform its function of guaranteeing
the essentials of living to the working people. To improve conditions
the diet in 1946 (law no. 48) and 1948 (law no. 127) enacted amend-
ments to the Welfare Pension Insurance Law. The monthly wages
average as the basis of benefits was frozen at an upper limit, the
conditions of payment of pecuniary aid in case of withdrawal were
eased, and measures to avoid damage to the insured as a result of
currency and price depreciation were taken. When, in 1948, the
monthly wages increased, the premium was temporarily reduced in
order to lessen the burden of higher insurance contributions. For the
purpose of calculating the old-age pension the monthly wages aver-
age was fixed at 300 ¥.
There were examples of the endeavour to adjust the insurance
conditions to the economic situation at any time. In continuation of
such efforts the initial and basic laws on social insurance underwent
social welfare law 601
50
668–749. Buddhist priest and missionary who, with the support of the Throne
had bridges built, ponds dug, berths for ships constructed, free lodging houses estab-
lished. See Hajime Nakamura, The Way of Thinking of Eastern Peoples, 1960,
p. 423.
51
The authors of [Iwanami ] Bukkyò jiten (Buddhist Dictionary), 1991, p. 379,
emphasize the importance to reappraise the welfare idea of Kamakura Buddhism
to fix the welfare society in the Japanese way.
602 social law
effect, if any, for “no benevolent government could have averted the
natural calamities which were the immediate causes of distress”.52
However, there are examples of remarkable feats of the bakufu in
favour of the common weal such as subsidies for the rebuilding of Edo
(Tokyo) after vast fire disasters or the construction of a big water pipe
in the 17th century to supply the western part of Edo with good water
(Kanda jòsui ).
As remarked above, because of overlapping it is not always clear
which law should be assigned to social security and which to social
welfare. Partly they merge into each other.
Japanese scholars are not in agreement on the definition of social secu-
rity (shakai hoshò ) and social welfare (shakai fukushi ). Several explana-
tions have been presented, e.g.:
– Social security = the state secures the life of the citizens by means
of public relief or social insurance. The laws dealt with above under
II belong to this heading
Social welfare = the state grants on a large scale the necessary relief
to people who have not enough to live on and to bodily disabled per-
sons and thereby secures and improves their right to live. Laws with
this aim in view are the Livelyhood Protection Law (Seikatsu hogo hò )
of 1950. Social Welfare Service Law (Shakai fukushi jigyò hò ) of 1951,
Juvenile Welfare Law ( Jidò fufkushi hò ) of 1947, Eugenic Protection
Law (Yùsei hogo hò ) of 1947. «Toshiyoshi Miyazawa, Nihonkoku kenpò
(Constitution of Japan), 1955, p. 266».
– Social security = a section of the social policy of the state, namely
measures to secure life according of the confirmation of the right to
live, and, as an additional meaning, the system of securing life on a
certain average level by means of public relief or social insurance as
well as by laws on public health, medical care etc.
Social welfare = explained from the term ‘social work’ (shakai fukushi
jigyò or, formerly, shakai jigyò ): in a wide sense care for people in need
or possibly falling into distress, protection of the old and of children,
promotion of public hygiene, and many activities detailed under the
Law of Social Welfare Work of 1951 (see below). «Sakae Wagatsuma
et al., Shin hòritsugaku jiten (New Dictionary of Jurisprudence), 1957, pp.
436–438.»
– Social security = In October 1950 the Council for the Social Security
System explained the essence of this system that it guarantees by state
support the minimum standards of life to persons who have fallen into
need and together with that aims at improvement of public health and
social welfare. An argument against that definition says that public
health and social welfare are closely related to the social security
52
George Sansom, A History of Japan 1615–1867, 1964, p. 186.
Social Welfare Law 603
53
The development of capitalism, the westernization and the corresponding pol-
icy of the government was meant to promote the welfare of the nation, but it
intensified social differences and blocked effective measures to ease them generally.
604 social law
language of the laws. The Social Work Law of 1938 was radically
reformed and renamed Social Welfare Service Law (Shakai fukushi
jigyò hò ) on 29 March 1951. Art. 1 of the new law defined its purpose:
The object of this law is to lay down the common fundamental items
in all fields of social welfare service, to ensure the just and appropri-
ate execution of social welfare service pertaining to the Livelihood
Protection Law of 1950, the Juvenile Welfare Law of 1947, the Disabled
Persons Welfare Law of 194954 and other laws aiming at social wel-
fare and thereby contribute to the promotion of social welfare.
The social service was divided into two groups. Group 1 was prin-
cipally performed by the state, the local entities or the social wel-
fare corporations. Their duty was to operate institutions under the
Livelihood Protection Law, the Juvenile Welfare Law, the Disabled
Persons Welfare Law and others added by later amendments. Group
2 was concerned more with practical guidance and counselling, help
in everyday situations of persons in need, old or disabled individu-
als, and organization of neighbourly help, especially in regions where
well-being is deficient. A deliberative council (shakai fukushi shingikai )
was established in the Welfare Ministry; it had to investigate and
discuss the common fundamental items of the social welfare service
in all fields. In the local public entities at the level of a prefecture
welfare directors (shakai fukushi shuji ) were appointed, this was optional
in district towns and villages. The directors assisted the chief local
officials in executing the control, arts. 17, 18 of the Social Welfare
Service Law.
It will be gathered from the matters named in that law that it is
not easy to draw a separating line between them and the objects of
social security. The Livelihood Protection Law of 1946 is regarded
as part of the social welfare legislation but it substituted five laws
which can properly be classed with social security.55 The Livelihood
Protection Law, amended in 1950, was based on the idea of the
right to live as described in art. 25 of the Constitution of Japan. It
intended to guarantee that the state would grant to all people in
need the necessary protection according to the degree of need, to
54
Other laws were added by later amendments.
55
They were: Soldiers’ Aid Law, Relief Law, Mother and Child Protection Law,
Wartime Accident Relief Law, Medical Care Guarantee Law. Z. Nakagawa, Shakai
fukushi hò (Social Welfare Law), in Jurisuto ( Jurist) no. 100 (1956), p. 104.
606 social law
56
A.M. Thränhardt, Wohlfahrtsgesellschaft statt Wohlfahrtsstaat—Sozialpolitik
der achtziger Jahre in Japan (Welfare Society instead of Welfare State—Japanese
Social Policy in the Eighties), Zeitschrift für Sozialreform ( Journal of Social Reform),
41st year, no. 3/4 (1995), p. 220.
CHAPTER EIGHT
PENAL LAW
Karl-Friedrich Lenz
The first legislation in the field of criminal law after the Meiji restora-
tion was the karikeiritsu (Provisional Penal Code) of December 25th,
1868. After the restoration the old criminal law of the Tokugawa era
was still applied for some time. However, the new government saw
the necessity for creating an uniform criminal law applied in the
whole country. The unification of the criminal law was seen as a
far more urgent task than that of the civil law.1 Ishii2 points out two
reasons for this: There was an urgent need to preserve peace and
order immediately following the restoration and it was relatively easy
to adapt the penal laws of the eighth century to modern needs with
only limited revisions. Work on this project progressed quickly, so a
Penal Code was enacted in the first year of the Meiji era.3
This Code was not published in an Official Journal. It is most
easily accessed in an edition prepared by the Japanese Ministry of
Justice in 1945, which can now be found in the library of the
Ministry.4 Penalties under the Code are caning, forced labour, depor-
tation and death. A caning sentence may be one of ten classes
from 10 to 100 strokes. A penalty of 60 to 100 strokes is to be
applied by two punishment officials taking turns, to avoid a harmful
1
Ishii, Ryòsuke, Meijibunkashi 2 hòseihen (History of Culture in the Meiji Era 2
Legal System), Tokyo Yòyòsha 1952, 270–271. An English translation of this book
has appeared as Ishii, Ryòsuke translated by Chambliss, William J., Japanese
Legislation in the Meiji Era, Tokyo Pan-Pacific Press 1958.
2
Ishii, note 1, 271. All page numbers in citations of this book here refer to the
Japanese version.
3
Nishihara, Haruo, Keihò Sòron (Criminal Law, General Theories), Tokyo Seibundò
1977, 13.
4
Shihòshò Hisshòka (Ed.), Nihon kindai keijihòreishù, jò (Modern Penal Codes of
Japan, 1) Shihò Shiryò Bessatsu 17, Tokyo 1945, 227.
608 penal law
5
Ishii, note 1, 272.
6
Ishii, note 1, 272.
penal law 609
7
Hòrei Zensho 1870 (meiji 3), 572.
8
Nishihara, Note 3, 14.
9
Hòrei Zensho 1873 (meiji 6), 224.
10
Nishihara, Note 3, 14; Tjong, Zong Uk and Eubel, Paul, Strafrecht (Criminal
Law), in: Eubel, Paul (Ed.), Das japanische Rechtssystem (The Japanese Legal
System), Frankfurt a.M. Metzner, 1979, 207.
11
Tjong/Eubel, note 10, 207–208.
610 penal law
that foreign governments of the time did not really appreciate the
prospect of having the severed heads of their citizens living in Japan
exposed because they had violated some feudalistic Penal Code pro-
vision. The Japanese government, however, felt this exemption to be
“unequal” and wanted to have the consular jurisdiction removed.
This made it necessary to have a modern Penal Code, so the work
on the reform of the criminal law continued.12
If lawyers talk about the “legislator” (Gesetzgeber) and his real
aims, this is in most cases not a very exact term, since in modern
democracies there is usually not one single person who could be iso-
lated as the legislator. Rather, legislation is achieved by the com-
bined efforts of many people, and the question is only if there is
one single person who has the most influence in this process.13 In
the description of Tjong/Eubel the reform work was determined
largely by the French professor Boissonade, who was employed as
an advisor of the Japanese Ministry of Justice and presented a draft
in 1876.14 This would make Boissonade the most important legisla-
tor of the Penal Code of 1880.
On the other hand, according to Miyazawa the influence of
Boissonade was maybe not so strong after all.15 Boissonade was not
even a member of the commission which worked out a first draft.
Boissonade participated in the commission work only after that first
draft. According to Miyazawa one could sum up his role in the
reform process as follows: While his influence was definitely very
strong he did not achieve his legislative aims.16
The work of the commission drafting the 1880 legislation is doc-
umented in an edition of hand-written records.17 In the explanatory
introduction the editors describe Boissonade’s, position in the reform
12
Boissonade, Gustave, Projet révisé de Code Pénal pour l’empire du Japon
(New edition of the draft Penal Code for the empire of Japan), Tokyo Kokubunsha
1886 (reprint Tokyo 1988 Sòbunsha), 5. Nishihara, Note 3, 15; Miyazawa, Koichi,
Traditionelles und Modernes im japanischen Strafrecht (Traditional and Modern
Elements of Japanese Criminal Law), ZStW 1976, 822–823.
13
See Lenz, Karl-Friedrich, Das Ungewöhnlichste im Recht (The most Unusual
in Law), München Beck 1992, 95–98.
14
Tjong/Eubel, note 10, 208–209.
15
Miyazawa, note 12, 823–825.
16
Miyazawa, note 12, 825.
17
Waseda Daigaku Tsuruda Bunsho Kenkyùkai (Research Group of Waseda University
on the Tsuruda Collection), Nihon keihò sòan kaigi hikki (Records of the Commission
on the Japanese Penal Code Draft), Tokyo Waseda Daigaku 1976.
penal law 611
18
Sugiyama, Haruyasu and others, Kaisetsu (Explanation), in: Waseda Daigaku
Tsuruda Bunsho Kenkyùkai, note 17, 10–12.
19
Sugiyama, note 18, 10 (translation by the author).
20
Sugiyama, note 18, 10.
21
Sugiyama, note 18, 10–11.
22
Sugiyama, note 18, 11.
612 penal law
23
Boissonade, note 12, I–II.
24
Boissonade, note 12, IX.
25
Hòrei Zensho 1880 (meiji 13), 101.
26
Nishihara, Note 3, 15.
27
English translations by the author.
28
Boissonade, note 12, 31.
29
Boissonade, note 12, 295.
30
Boissonade, note 12, 296.
penal law 613
31
See Boissonade, note 12, 300–301 for the reasons to this provision.
32
Ishii, note 1, 461.
33
Boissonade, note 12, 421–426.
34
Boissonade, note 12, 427–429.
35
Boissonade, note 12, 428.
36
See page 623 below.
614 penal law
The law of March 31st 190537 introduced for the first time a sys-
tem of suspension on probation. A sentence of up to one year in
prison could be suspended for a period of two to five years. This
did not apply, however, to defendants already sentenced to prison.
The suspension of a sentence did not prevent forfeiture of advan-
tages gained by the crime. The suspension was canceled if the defen-
dant received another sentence for a different offence.
The keihò (Penal Code) of April 24th 190738 is the criminal law still
in force in Japan. There have been minor changes and one full revi-
sion. However, the full revision of 199539 had as its main goal the
translation of the Code into modern Japanese to make it more read-
able for the citizen. The Code of 1907 used many difficult Chinese
characters (kanji ) which are not taught in school today. It also uses
katakana instead of hiragana, contrary to modern practice, which makes
the text difficult to read. It was pointed out by Miyazawa40 that the
usage of difficult Japanese language was already adopted in prepar-
ing the Old Penal Code of 1880. This was criticized by Boissonade,
since the Penal Code is not written for scholars but is directed to
the “man on the street”. Writing a Penal Code in a cryptic style
unreadable to most citizens might even be in violation of the mod-
ern principle of nullum crimen sine lege (i.e. no crime without criminal
law). This criticism has been ignored for more than a century. For
the reasons mentioned above the whole code was finally modern-
ized linguistically, but with hardly any changes in substance.
Since the Penal Code of 1907 is essentially being applied today
in Japan, the legislation history of this Code is particularly impor-
tant. Generally speaking, research on the history of law might be
criticized by an unfriendly person as an activity for people with too
37
Law No. 70/1905, Hòrei Zensho 1905 (Meiji 38), Vol. 2, 213.
38
Law No. 45/1907, Hòrei Zensho 1907 (Meiji 40), Vol. 2, page 67.
39
Keihò no ichibu wo kaisei suru hòritsu (Law amending the Penal Code partially),
Law No. 91/1995, Hòrei Zensho 1995 (heisei 7), May Volume, 37.
40
Miyazawa, note 12, 827–828.
penal law 615
41
See the decisions of the German Federal Constitutional Court in BVerfGE 11,
16 and in BVerfGE 1, 299. In these cases the Constitutional Court holds that the
historic method of interpretation is inferior to all other methods and may only be
used to confirm the results reached by using one of the other established methods
of interpretation. See also BVerfGE 54, 277 and Lenz, note 13, 50–51.
42
Nishihara, Note 3, 17.
43
Kuratomi, Yùsaburò (Ed.), Keihò enkaku sòran (Complete Edition of the Penal
Code Development), Tokyo Shimizu Shoten, 1923.
44
Keihò kaisei seifu teishutsuan riyùsho (Reasons for the Penal Code Reform Draft
by the Government), Kuratomi, note 43, 2119–2216.
616 penal law
45
Nishihara, Note 3, 16; Kobayakawa, Kingo, Meiji hòseishiron, kòhò no bu, ge
(Legal History in the Meiji era, Public Law, Volume 2), Tokyo Ganshòdò 1940,
1026.
46
Meiji 23 nen kaisei keihò sòan (Penal Code Reform Draft of 1890), Kuratomi,
note 43, 72–138.
47
Records are published in Kuratomi, note 43, 139–160.
48
Kobayakawa, note 45, 1027.
49
Kobayakawa, note 45, 1027.
50
Kobayakawa, note 45, 1027.
51
Meiji 34 nen kaisei keihò sòan (Penal Code Reform Draft of 1901), Kuratomi,
note 43, 161–203.
52
Kobayakawa, note 45, 1028.
53
Kuratomi, note 43, 204–434.
54
Kobayakawa, note 45, 1028.
55
Meiji 35 nen kaisei keihò sòan (Penal Code Reform Draft of 1902), Kuratomi,
note 43, 435–476.
56
Kuratomi, note 43, 477–1486.
57
Kobayakawa, note 45, 1028.
58
Kobayakawa, note 45, 1028.
59
Kobayakawa, note 45, 1028.
60
Kobayakawa, note 45, 1028.
61
Kuratomi, note 43, 1555–1593.
62
Kobayakawa, note 45, 1029.
63
Kuratomi, note 43, 1593–2107.
64
Kobayakawa, note 45, 1029–1034.
penal law 617
The following discussion of the official reasons for the 1907 Penal
Code will have to be limited to a very few points, since to deal with
every aspect of the Code would mean writing a full-length book on
this legislation, which might end up as a compendium of contem-
porary criminal law in Japan. The purpose here, however, is lim-
ited to giving some insights into the history of the 1907 legislation.
Since only a few points can be chosen for discussion, the selection
criteria for this choice are important. It should be remembered that
I am writing this contribution from a German point of view, and
therefore I am going to consider first those aspects of the 1907 Penal
Code which are different from German criminal law. This same
approach has been followed before in a comparative law effort
directed at finding out the “things Japanese in Japanese law”.65
One of the most striking differences between the Japanese Penal
Code and German criminal law is the treatment of the homicide
provisions.66 The Japanese Penal Code gives the judge great leeway
for discretion about the sentence. Section 199 of the Penal Code
states that in cases of homicide the sentence is to be from a mini-
mum of three years in prison to the death penalty at the most. A
sentence of three years can be suspended on probation. Therefore,
a judge might sentence one defendant to death and have another
defendant leave the court room as a free person.67 In contrast, sec-
tion 211 of the German Penal Code describes some cases of homi-
cide as murder and leaves no discretion whatsoever about the sentence,
life imprisonment being the only option. This is in many cases a
great failure, since life imprisonment might be too harsh consider-
ing all the circumstances of the case.68 It is therefore interesting to
have a look at the official reasons for the homicide provisions in the
Japanese Penal Code of 1907.
The official reasons of the government69 are stated as follows (trans-
lation by the author).
65
Menkhaus, Heinrich, (Ed.) Das Japanische im japanischen Recht (Things
Japanese in the Japanese law), München Iudicium 1994.
66
Götze, Bernd J., Das Japanische im japanischen Strafrecht (Things Japanese
in the Japanese Criminal Law), in: Menkhaus, note 65, 511.
67
Götze, note 66, 511.
68
See Perron, Walter, Sind die nationalen Grenzen des Strafrechts überwind-
bar? (Is it Possible to Overcome the National Boundaries of Criminal Law), ZStW
1997, 291–296.
69
Kuratomi, note 43, 2197–2198.
618 penal law
“Section 293 of the Old Penal Code always treats homicide with
poison as murder. However, there are also cases with mitigating cir-
cumstances. Therefore, this section is abolished and the decision left
to the court. Section 298 of the Old Penal Code is a provision on
killing in error. This states only what is obvious in the scholarly dis-
cussion. Since it is not necessary to uphold this section it would only
be a source of confusion. Therefore it is abolished.”
“Section 20070 regulates the crimes stated in the old sections 292
to 294 (manslaughter and murder) in one provision. As a conse-
quence, the range of possible sentences becomes much broader. It
is one of the big questions of criminal law today whether the regu-
lation of homicide should distinguish between murder and manslaugh-
ter. However, it is theoretically not possible to distinguish by the
criterion of premeditation. Therefore distinguishing between murder
and manslaughter leads to the nuisance of useless appeals. Also, when
looking at all the circumstances of a case, murder is not always a
major crime, while manslaughter is not always a non-major offence.
It is also a general principle of the draft new Penal Code to pro-
vide for broad ranges of possible sentences in this case. Therefore
it is the position of the draft that the distinction between murder
and manslaughter is of harmful influence and of no use whatsoever
and has to be abolished. It is to be left to the judges to find the
appropriate sentence from a broad range by evaluating all the cir-
cumstances of the case.”
Another point in which the Japanese criminal law is different from
present German law is the question of the death penalty. The death
penalty is not abolished in the 1907 Penal Code. The reasons why
the government did not abolish the death penalty are as follows71
(translation by the author):
“The new Code upholds the death penalty from the Old Penal
Code. In the scholarly discussion there is not yet an agreement about
the question of abolition. Looking at foreign legislation, there are
already some examples of abolishing the death penalty. However,
the situation today does not yet permit the abolition. Therefore the
draft acknowledges the need to uphold the death penalty in the light
of the experiences up to now.”
70
That is section 199 of the final version.
71
Kuratomi, note 43, 2126.
penal law 619
72
Kuratomi, note 43, 2156–2157.
73
See page 614.
74
Kuratomi, note 43, 2135–2136.
620 penal law
75
Nishihara, Haruo, Der Einfluß des deutschen Rechts auf die moderne
Entwicklung in Japan (The Influence of German Law on the Modern Development
in Japan), in: Eser, Albin/Nishihara, Haruo (Ed.), Rechtfertigung und Entschuldigung
IV, Freiburg i. Brsg. edition iuscrim 1995, 17–18; Nishida, Noriyuki, Das Japanische
im japanischen Strafrecht (Things Japanese in Japanese Criminal Law), in: Menkhaus,
note 65, 527–528.
76
See Jescheck, Hans-Heinrich, Lehrbuch des Strafrechts (Textbook of Criminal
Law), 4th edition Berlin Duncker & Humblot 1988, 90.
77
See Jescheck, note 76, 63–67.
78
See Fukuda, Taira, Die Beziehungen zwischen der deutschen und der japanis-
chen Strafrechtswissenschaft, eine historische Studie (The relations between the
German and the Japanese Academic Discussion of Criminal Law), in: Hirsch, Hans-
Joachim/Weigend, Thomas, Strafrecht und Kriminalpolitik in Japan und Deutschland,
Berlin Duncker&Humblot 1989, 59–59.
penal law 621
Reform of 1921
The Penal Code was amended81 on October 4th 1921, altering the
sanction for embezzlement at work in section 253 of the Code. The
maximum sentence of ten years prison remained unchanged. However,
the minimum sentence of one year was removed.
Reform of 1941
The law of March 11th 194182 changed the Penal Code in many
respects. The first change involves the section on forfeit. After the
reform, the objects of forfeit are not only advantages gained directly
by the crime. Rather, forfeit is made possible also for advantages
gained as a remuneration for the crime (new section 19 of the Code)
and things gained in exchange for advantages gained directly by the
crime, e.g. things bought with stolen money. Forfeit is made possi-
ble also as a sanction against third persons who knowingly receive
stolen goods. When it is not possible to forfeit the advantages gained
directly from the crime, an amount of money corresponding to the
advantage is made the object of the forfeit. The new law also intro-
duces some new crimes. In the new section 96–2 it is made a crime
to prevent debt enforcement by hiding assets or destroying one’s own
property. Likewise, section 96–3 forbids interfering by deception or
intimidation with an auction or a call for tenders. This section also
makes it a crime to fix prices in collusive tendering (dangò ). Other
new crimes in the sections 105–2 to 105–4 and 107–2 of the Code
protect the wartime economy against the spreading of false rumors
79
Nishihara, Haruo, Die Rezeption des deutschen Strafrechts durch Japan in
historischer Sicht (The Reception of German Criminal Law by Japan in a Historical
View), in: Hirsch/Weigend, note 78, 16–17.
80
Tjong/Eubel, note 10, 211f.
81
Law No. 77/1921, Hòrei Zensho 1921 (Taishò 10), Vol. 3, 112.
82
Law No. 61/1941, Hòrei Zensho 1941 (Shòwa 16), March Volume 1, 104.
622 penal law
83
For a detailed discussion of Japanese bribery law see Lenz, Karl-Friedrich,
Japan, in: Eser, Albin/Überhofen, Michael/Huber, Barbara (Ed.), Korruptions-
bekämpfung durch Strafrecht, Freiburg i. Brg. edition iuscrim 1997, 281–322.
84
Röhl, Wilhelm, Fremde Einflüsse im modernen japanischen Recht (Foreign
Influence on Modern Japanese Law), Frankfurt Metzner 1959, 49.
85
Nihon Koku Kenpò (The Constitution of Japan of 1946–11–03). For an English
translation see Maki, John M., Court and Constitution in Japan, Seattle University
of Washington Press 1964.
86
See Oppler, Alfred C., Legal Reform in Occupied Japan, Princeton, Princeton
University Press 1976, 20, 42–49.
87
Oppler, note 86, 64–65.
88
Oppler, note 86, 66–67.
penal law 623
89
Oppler, note 86, 74.
90
Oppler, note 86, 159.
91
Oppler, note 86, 168.
92
Section 183 of the Penal Code of 1907 (translation by the author): Whoever
commits adultery with a married woman will be punished by prison up to two
years. The same applies for the other party of the adultery. These offences are only
prosecuted on demand of the husband. If the husband has allowed the adultery,
his demand is not valid.
93
Oppler, note 86, 74–75.
94
Abolished as late as 1995.
95
Oppler, note 86, 121.
624 penal law
Reform of 1958
The law of April 30th 195897 introduced some new crimes as part
of the government’s generally tougher crime-fighting policy.98 The
new section 105–2 of the Penal Code prohibited the intimidation of
witnesses in criminal cases. It was made an offence to force the wit-
ness or a family member of the witness to talk about the crime. Also
the bribery provisions of the Code were amended with a new sec-
tion 197–4, which forbade taking a bribe for an action by another
official. The new section 208–2 of the Code made it an offence for
two or more people to meet with weapons with the intent to inflict
harm on the life, body or assets of another person.
Reform of 1960
96
Oppler, note 86, 126.
97
Law No. 107/1958, Hòrei Zensho 1958 (shòwa 33), Vol. 1, 179.
98
Nishihara, Note 3, 19.
99
Law No. 83/1960, Hòrei Zensho 1960 (shòwa 35), Vol. 1, 18.
100
Nishihara, Note 3, 20.
penal law 625
Reform of 1964
Reform of 1968
The law of May 21st 1968102 raised the maximum penalty for homi-
cide caused by negligence at work (section 211 of the Code)
from three years to five years, since there were many fatal traffic
accidents.103
Timetable104
101
Law No. 124/1964, Hòrei Zensho 1964 (shòwa 39), Vol. 1, 86.
102
Law No. 61/1968, Hòrei Zensho 1968 (shòwa 43), Vol. 1, 34.
103
Nishihara, Note 3, 21.
104
See Rekishigaku Kenkyùkai (Ed.), Nihonshi nenpyò (Timetable Japanese History),
Tokyo Iwanami 1993.
626 penal law
PROCEDURAL LAW
Lorenz Ködderitzsch
1. Introduction
1
The development of substantive issues of administrative law is covered by
W. Röhl, supra at p. 123 et seq. Given the wealth of literature in Japanese, English
and German with regard to administrative litigation law for the whole period cov-
ered here and for administrative procedure law in the post-war period, this essay
shall primarily serve to summarize these accounts from a German legal perspective
and does not pertain to uncover hitherto unknown historical evidence.
628 procedural law
a) Preliminary Remarks
The transfer of power from Tokugawa government (bakufu) to the
ruling elite under the Meiji Emperor as of 1868 marked a significant
change in the political and legal order of Japan. The introduction
of new political and legal concepts as of 1868 did not occur on a
clean slate and are rather to be viewed in the context of the sophis-
ticated political order of the late Tokugawa regime.2 An account of
these rules is beyond the scope of this essay. Thus, only very basic
remarks shall be made here.
Legal rules dealing with the recourse of an individual against
administrative actions was a concept utterly alien to the political
order of Japan until the beginning of Meiji Period. As Steenstrup
remarks in his “History of Law in Japan until 1868” there was no
distinction between legislative, executive and judicial powers during
the Tokugawa Period.3 In his view, laws did not grant individual
rights against the authorities and justice was always a grace, not a
right.4 Although one may argue that there were some means to make
grievances heard during the Tokugawa Period and the early Meiji
Period, there were at least until 1872 no legal means in a forma-
lized sense to seek relief from an administrative disposition.
2
Herman Ooms, Tokugawa Village Practice: Class, Status, Power, Law, Berkeley
1996.
3
Carl Steenstrup, A History of Law in Japan until 1868, 1991, p. 116.
4
Steenstrup supra note 2 at p. 120.
litigation and administrative procedure law 629
During the last years of the bakufu and the early Meiji Period new
political and legal concepts were introduced in Japan, including the
concepts and terminology of the separation of powers and of indi-
vidual rights. Incidentally, new words were also created for the
concept of administrative law which beyond the mere semantics
reveal the deeper political understanding of the leading actors of the
time.5
The reasons for introducing western political and legal concepts
were diverse and included the aim of maintaining Japan’s indepen-
dence vis-à-vis the western powers as well as renegotiating the con-
sular treaties. They also included the aim of increasing the efficiency
of the Japanese socio-economic system and of dealing with internal
discontent.6 However, just as diverse as these reasons were, are the
ideas and concepts the leading figures of the early Meiji Period
turned to. The concepts which were eventually implemented reflected
the political struggle taking place at that time. Before describing the
outcome of this struggle in greater detail a few more preliminary
remarks regarding the reception of western, in particular of German
legal concepts should be made.
As Wada points out, the legal instruments adopted in Japan were
chosen with little regard for their underlying philosophy7 and could
therefore not develop in the same way as in the country of origin.
As the adopted legal concepts were voided from their underlying
philosophy, elements of conflicting legal concepts could be and were
chosen in an eclectic manner.
For instance, while it is difficult to assess whether the Prussian
model was more restrictive or conservative than the Austrian model
of administrative litigation, it is clear that each model was in itself
5
While earlier authors referred to the administration with the character com-
pound “gyòhò ” (hò[ritsu] wo okonau), i.e. within the concept of the separation of pow-
ers the branch entrusted with carrying out the laws, Itò Hirobumi and Inoue
Kowashi strongly advocated for the character compound of “gyòsei” (sei[ ji] wo okonau)
as the institution which deriving its authority from the emperor enforces policies,
cf. Miyazaki Yoshio, Gyòsei soshò to gyòsei hògaku [Administrative Litigation and
Administrative Law Doctri ne] 1991, pp. 17–19.
6
Cf. Ishii Ryòsuke, A History of Political Institutions in Japan, 1976; Murakami
Junichi, Einführung in das japanische Recht, 1974; Wilhelm Röhl, Fremde Einflüsse
im modernen japanischen Recht, 1959.
7
Wada Hideo, The Administrative Court under the Meiji Constitution, in Law
in Japan volume 10, p. 2.
630 procedural law
8
C.H. Ule, Zu den Anfängen der Verwaltungsgerichtsbarkeit in Deutschland
und in Japan, in Verwaltungsarchiv 1989, p. 303.
9
Miyazaki Yoshio points out that the yearly average of administrative case lit-
igation for the years 1890 until 1916 was about 5,500 cases in Prussia compared
to 277 cases in Japan, Meijikenpò moto no gyòseisaiban [The Administrative Court under
the Meiji Constitution], in Hògakukyòshitsu Tokushù Saibanseido 100 nen [special edi-
tion of Hògakukyòshitsu on one-hundred years of judiciary] 1990, p. 14.
10
Cf. John O. Haley, Toward a Reappraisal of the Occupation Legal Reforms:
Administrative Accountability, in Fujikura (ed.) Eibeihò ronshù—Tanaka Hideo sensei
kanreki kinen (Essays on Anglo-American Law—In Celebration of Professor Hideo
Tanaka’s 60th Birthday), 1987, p. 457 who comments as follows: “Japan subseq-
uently adopted what was in form, but only with barest substance, a European-style
administrative court system”.
11
Wada, supra note 7 at p. 16.
litigation and administrative procedure law 631
12
Ch. von Unruh, Vom Gesetzesstaat zum Rechtsstaat, in Deutsches Verwaltungs-
blatt 1975, p. 838 [841].
13
With respect to the concept of the “sozialer Monarch” of Lorenz von Stein
as introduced to Japan by Hermann Roesler cf. Johannes Siemes, Die Gründung
des modernen japanischen Staates und das deutsche Staatsrecht, 1975, p. 75.
14
In Haley’s view (cf. supra note 10) the lack of an ordering force to balance
conflicting branches of government and of political centers of powers was the Meiji
constitution’s greatest defect for which there was no cure.
632 procedural law
b) Legislative Process
During the initial stage of the Meiji government and at a time when
it was struggling to defend its existence it had to abide by the prin-
ciple proclaimed by the Meiji emperor of deciding matters by pub-
lic debate and public opinion. In 1869, an office was established to
process petitions (seigan) and memorials (kenpaku) submitted to the
Meiji government. According to Wada,15 this system of memorials
may be qualified as an embryonic stage of administrative suits in
the sense of processing requests from the people regarding adminis-
trative cases. In 1872, the means of making an appeal against admin-
istrative decisions was expanded by an order issued by the recently
established Ministry of Justice under its minister Etò Shimpei. This
order granted individuals the right to bring a suit before the district
court or the Ministry of Justice court against dispositions issued by
local – but not central – administrative entities (including the newly
established prefectures). The Japanese people actually made use of
this system to an extent that leading figures in the Meiji government
such as Itò Hirobumi or Inoue Kowashi found quite shocking.16 It
was also fiercely opposed by the administration, in particular by the
prefectural governors, as an undue restraint on public administra-
tion. Besides theoretical considerations, this experience with the
Ministry of Justice order of 1872 shaped in particular the concep-
tion of Inoue Kowashi as one of the main drafters of the Administrative
Adjudication Law of 1890.17
Upon Itò Hirobumi’s return from a study tour in Europe he
instructed in 1877 Inoue Kowashi to prepare the groundwork for
drafting an Administrative Adjudicative Law to be ready with the
enactment of the constitution.18 Inoue Kowashi was assisted by
15
Wada, supra note 7 at p. 10.
16
As Itò Hirobumi remarks in his Commentaries on the Constitution: “The
courts are now swamped with documents bringing actions against local officials; all
of a sudden, one is made to witness abuses by judicial officers exerting undue restraints
on the administration”, cited after Wada, supra note 7 at p. 12.
17
Misaka Yoshirò, Meiji zenki niokeru gyòsei jiken toriatsukai seido no ichikòsatsu [Reflection
on the dealing of administrative matters in the early Meiji Period], in Osaka Hògaku,
August 1986, p. 139, pp. 152–153.
18
Nie Min, Meiji gyòseisaibanseido seiritsushi ni kansuru ichikòsatsu – gyòseisaibanhò no
seiritsukatei to Inoue Kowashi [Reflections on the legislative process of the Meiji admin-
istrative court system – Inoue Kowashi and the legislative process of the Administrative
Adjudication Law], in Hongohòseikiyo 1993, p. 223.
litigation and administrative procedure law 633
Roesler and Albert Mosse. While the former was very much impressed
by the Austrian administrative litigation system and under the influ-
ence of Lorenz von Stein’s legal concepts,19 the latter was a pupil
of Rudolf von Gneist, who interestingly enough had declined to see
Itò Hiròbumi during his study tour in Prussia.20 Roesler presented
in 1884 a first draft which contained elements to be found in the
French Conseil d’Etat. Inoue Kowashi had, however, discouraged in
a letter to Itò Hirobumi to follow the French approach. Thus, the
Roesler draft was rejected but parts of it did serve as a basis for the
subsequent drafts. Following a second draft by the Bureau of Legislation
in 1886/87 Inoue Kowashi prepared together with Roesler a third
draft in 1889. The final and prevailing draft was drafted by Mosse
and published in the course of 1889 with the Administrative Adju-
dication Law being enacted in 1890. While Roesler prevailed with
the concept of a single court of administrative adjudication within
the executive branch he was not able to persuade the Meiji gov-
ernment to include a general clause whereby all administrative dis-
positions could be challenged in the administrative court. Based on
the experience with the judicial system introduced by the Ministry
of Justice order in 1872 the Meiji government opted for the enu-
meration clause as suggested by Mosse in order to safeguard the
primacy of the administration within the constitutional separation of
powers.21
19
For a comprehensive description of the role of Hermann Roesler in the mak-
ing of the Meiji Constitution cf. J. Siemes, supra note 12.
20
Cf. Ule, supra note 8.
21
Cf. Miyazaki, supra note 5 at pp. 51–53 and Wada supra note 7 at pp. 15–19.
634 procedural law
22
Wada supra note 7 at p. 46.
23
Citation after Wada supra note 7 at p. 23.
24
Miyazaki supra note 9 at p. 15.
litigation and administrative procedure law 635
25
Wada supra note 7 at p. 48.
26
Miyazaki supra note 9 at p. 15.
27
Miyazaki supra note 9 at p. 15.
28
Wada supra note 7 at p. 48.
636 procedural law
29
Cf. Haley supra note 10 at p. 546.
30
Takabayashi Katsumi, Einführung in das japanische Verwaltungsprozeßrecht,
in Verwaltungsarchiv Band 55 (1964), p. 359.
31
Haley supra note 10 at p. 548.
32
Cf. figures by Miyazaki supra note 9 at p. 15 who points out that allowing for
the respective size in population there were, on a very rough measure, 40 to 60
times more administrative suits in Prussia than in Japan. For a detailed statistical
analysis cf. Wada supra note 7 at pp. 56–64. Under the present system of the
Administrative Case Litigation Law the number of case where the applicant is
granted relief is not significantly higher. Whether this indicates that the success rate
under the Administrative Court system was not all that low or rather that the pre-
sent system is still restrictive is open to debate.
litigation and administrative procedure law 637
33
Wada supra note 7 at pp. 28–29 with comments based on the review of court
rulings by Minobe Tatsukichi, Gyòseihò hanrei [Administrative law decisions], 1926.
34
Haley supra note 10 at p. 549 who concludes that “[. . .] the Japanese judi-
ciary carved out a broad area in which the government could be sued directly for
damages.”
35
Minobe Tatsukichi, Gyòsei saiban hò [Administrative adjudication law], 1929.
36
Wada supra note 7 at pp. 49–55.
638 procedural law
a) Constitutional Framework
Following Japan’s defeat and its occupation by the Allied Powers, in
effect the United States’ Army, the political and legal order of Japan
was again subject to dramatic changes in the period between 1945
and 1952. Under the avowed aim of the Supreme Commander for
the Allied Powers (SCAP) to cure the defects of the prewar politi-
cal and legal order by a combination of parliamentary supremacy
and judicial control a new constitution (Nihon kokukempò, hereinafter
“Japanese Constitution”) was drafted in 1946 and replaced the Meiji
Constitution in 1947.37 Pursuant to Article 76 of the Japanese
Constitution the whole judicial power is vested with the Supreme
Court and with the judicial courts as established by law (Section 1).
The creation of special courts is prohibited and administrative bod-
ies may not issue rulings as courts of last instance (Section 2). As
under the unified judiciary there was no legal basis anymore for the
Administrative Court; it was duly abolished concurrently with the
revocation of the Administrative Adjudication Law of 1890.
As a consequence ordinary courts were to deal with all challenges
of administrative disposition brought to their attention by citizens on
the basis of the Civil Procedure Code. However, the ordinary courts
were ill-equipped to deal with administrative matters on the basis of
the Civil Procedure Code which did not spell out any specific rem-
edy in case administrative dispositions were found to be illegal. As
a stopgap measure a Law on the Temporary Amendment of the
Civil Procedure Code (Minjisoshòhò no òkyùtekisotchi nikansuruhòritsu) was
enacted in 1947 without the explicit approval by SCAP. This law
mainly dealt with the question of the period for filing of a suit ulti-
mately within six months after the issuance of an administrative dis-
position.38 As the judges of the ordinary courts were not used to rule
37
Cf. p. 58 n. 67 with respect to the development of constitutional law in Japan.
38
Shiono Hiroshi, Gyòseihò ni (Administrative Law Part II], 1994, p. 56.
litigation and administrative procedure law 639
39
Harada Naohiko, Gyòseihanrei no yakuwari [ The Role of Court Rulings in
Administrative Law], 1991, p. 6.
40
Haley supra note 10 at p. 553.
640 procedural law
Case Litigation Law still exist today – severely restricted the capac-
ity of the courts to provide effective relief.41 To be fair one should
point out that the provisions have very rarely been applied. In the
few recent cases in which courts did issue rulings of special cir-
cumstances, the plaintiffs had in most cases lost through time lapse
a legal interest. While the courts cannot grant relief in such cases
they can in the form of a ruling of special circumstances explicitly
state that the administration had acted illegally.
An interesting question here is whether the overriding power of
the prime minister was linked to statements by SCAP as Saitò42
indicates or whether it was more of the making of the Japanese
drafters themselves as Haley would rather imply.43 Without any
doubt the ruling by the District Court of Tokyo in February 1948
which had granted the applicant Hirano a stay of execution of an
order of his removal from public office, came as a great surprise to
both the Japanese government and SCAP.44 Most of the legislation
enacted in the first postwar years was screened by the Courts and
Law (later Legislation and Justice) Division of SCAP headed by Alfred
Oppler, a former administrative law judge in the Weimar Republic.
Haley has pointed out the irony that the biggest if not sole mis-
judgments by SCAP in shaping a democratic postwar Japan should
have occurred in the area of public law.45 Yet, as Haley derives
from contemporaneous notes of SCAP there is nothing in Oppler’s
account to suggest that the Hirano case bore any relation to the
Special Measures Law.46
To the extent that under the Special Measures Law administra-
tive matters were subject to judicial review by independent courts
under principles to be found essentially in the Civil Procedure Code
this marked a significant departure from the Administrative Court
system under the Meiji Constitution as described above. Yet, many
aspects of the Special Measures Law such as the remedies available
41
Haley supra note 10 at p. 553.
42
Saitò Atsushi, Gyòsei jiken soshò tokurei hò no rippò katei [The legislative history
of the administrative case litigation special measures law] in Ukai (ed.) Gyòsei tet-
suzuki no kenkyù (Research on administrative procedure), 1961, pp. 213–266.
43
Haley supra note 10 at p. 554 seq.
44
For a detailed account of the so-called Hirano case cf. Miyazaki Yoshio,
Hirano-jiken [The Hirano case] in Jurisuto 1990, p. 34.
45
Haley supra note 10 at p. 549 seq.
46
Haley supra note 10 at p. 555.
litigation and administrative procedure law 641
47
Shiono supra note 38 at p. 58.
48
Haley supra note 10 at p. 553.
642 procedural law
49
Shiono supra note 38 at p. 59.
50
Ogawa Ichirò, Gyòseijikensoshòhò rippò no kaiko to hansei [Looking back and
Reflecting on the Legislative Procedure of the Administrative Case Litigation Law],
p. 197 cited from Shiono supra note 38 at p. 59.
51
Cf. Ködderitzsch, Rechtsschutz gegen die Verwaltung [Legal Protection against
the Administration] in Zeitschrift für Japanisches Recht Nr. 5 (1998), pp. 31–54
with a German translation of the Administrative Case Litigation Law by Ködderitzsch
in Zeitschrift für Japanisches Recht Nr. 5 (1998), pp. 146–162; Tanakadate Shokitsu,
A Summary of the Limitations on Administrative Adjudication Under the Japanese
Constitution in Law in Japan Volume 18 (1986), pp. 108–117 with further references.
litigation and administrative procedure law 643
52
Cf. H. Shiono, Verwaltungsrecht und Verwaltungsstil [Administrative Law and
Administrative Style] in Coing (ed.) Die Japanisierung des westlichen Rechts, 1990,
pp. 45–61; Y. Ohashi, Verwaltungsvorschriften und informelles Verwaltungshandeln
[Administrative (Internal) Rules and Informal Administrative Actions] in Verwal-
tungsarchiv Band 82 (1991) pp. 220–245.
53
Cf. for a critical review of court rulings on administrative matters Harada
supra note 39 as well as the special edition of Jurisuto on the Administrative Case
Litigation Law, Jurisuto No. 925 (1989).
54
The Administrative Procedure Act (Gyòsei tetsuzuki-hò ) was enacted in 1993, cf.
below section 3; the Act on Administrative Information Disclosure was enacted in
1999, cf. N. Kadomatsu, The New Administrative Disclosure Law in Japan, in
Zeitschrift für Japanisches Recht, Heft 8 (1999), pp. 34–52.
644 procedural law
55
The introduction of the German concept of rule of law (Rechtsstaatsprinzip) and
the coining of the term “hòchikoku” occurred in Japan at a stage when it had been
decided that a constitution would need to be drafted, thus around the 1880’s. In
the subsequent years this term was object of further consideration less among con-
stitutional scholars but rather by administrative law professors, cf. B. Takada, Die
Aufnahme deutscher Rechtstheorien in Japan, in Berberich (ed.), Neue Entwicklungen
im öffentlichen Recht (1979), p. 222 seq.
56
B. Takada, Der Rechtsstaatsgedanke und die Vorstellung vom Verwaltungs-
verfahren, in Verwaltung im Rechtsstaat (Festschrift Cart Hermann Ule), pp. 393,
397.
litigation and administrative procedure law 645
57
Minobe Tatsukichi, Nihon Gyòsei Hò ( jòkan) [ Japanese Administrative Law
(Volume I)] 1925, pp. 287–289.
58
Minobe supra note 57 at p. 288. Minobe distinguishes between procedural rules
of purely internal relevance and procedural rules meant to protect the rights of cit-
izens. Only the breach of the latter procedural rules are a basis for invalidating an
administrative disposition.
59
Takada supra note 56 at pp. 398–399.
60
Takada supra note 56 at p. 399 with works by Bin Sonobe cited in footnotes
12, 14 and 16. Takada points out that treatises on Japanese administrative law did
646 procedural law
not deal with administrative procedure law as an own subject or chapter until 1965.
The above cited prewar standard textbook of Minobe supra note 57 dealt with rules
of administrative procedure in the chapter on defective administrative dispositions,
i.e. a breach of rules of administrative procedure as being one possible ground for
the invalidation of an administrative disposition.
61
Takahashi Shigeru, Gyòsei tetsuzuki hò [Administrative Procedure Law], 1996,
p. 25.
62
Y. Narita, Verwaltungsverfahrensrecht in Japan, in Verwaltung im Rechtsstaat
(Festschrift Carl Hermann Ule), p. 223, p. 225.
63
Takahashi supra note 61 at p. 26.
64
Haley supra note 10 at pp. 561–563 referring to a meeting of the chief of the
litigation and administrative procedure law 647
b) Hashimoto Draft
From the start of the Korean War and during the 1950s Japan expe-
rienced considerable economic growth leading to new administrative
challenges in particular with regard to infrastructure and urbaniza-
tion. In this decade, a number of administrative reforms introduced
under SCAP were revised following the end of the Allied occupa-
tion in 1952. In the early 1960s, with economic growth increasing
Legal Section Oppler with the Attorney General Ueda discussing the need for pro-
cedural safeguards prior to issuing administrative decisions.
65
Takahashi supra note 61 at p. 27 with further reference made in his footnote 8.
66
Takahashi supra note 61 at p. 27.
67
Takahashi supra note 61 at pp. 27–28.
68
Shiono Hiroshi, Gyòsei tetsuzuki hò kenkyùkai hòkoku no kòhyò ni atatte [On the
Occasion of the Publication of the Administrative Procedure Act Study Commission
Report], 810 Jurisuto 42 (1984).
648 procedural law
69
Tanaka Jirò, Gyòsei tetsuzuki no seibi – soganhò no kaizei wo megutte [Regarding
the Preparation of Administrative Procedure and the Revision of the Appeals Law]
in Jichi Kenkyù vol. 35, no. 2, p. 12 seq.
70
Takahashi supra note 61 at p. 32.
71
Kawakami v. Tokyo Land Transportation Bureau, Sup. Ct., Judgement of
Oct. 28, 1965, Minshù 25–7–1037.
72
Gunma Central Bus K.K. v. Minister of Transportation, Sup. Ct., Judgement
of May 29, 1967, Minshù 29–5–662.
litigation and administrative procedure law 649
73
A point strongly argued by Prof. Shiono who moreover points out that after-
the-fact judicial review, even when granted, cannot always restore the plaintiff to
his position prior to the infringement, Shiono supra note 68 at p. 210.
74
Regarding the concept and impact of administrative guidance (gyòsei shidò ) cf.
supra at note 52.
650 procedural law
75
Takahashi supra note 61 at p. 37.
76
Seki Yùichi, Gyòseitetsuzuki rippò no keii to haikei [Background and Process of the
Legislation of Administrative Procedure Law], Hòritsu Jihò 65–6–55 (May 1993).
77
Ködderitzsch, Japan’s New Administrative Procedure Law: Reasons for its
Enactment and Likely Implications, in 24 Law in Japan 105, 112 (published in
1994).
78
For a detailed description of the work of the Second Commission cf. Gyòseikaiku
no shiten [Aspects of Administrative Reform] in 29 Jurisuto Sògò Tokushù 86–161
(1983). The most notable examples of privatization are NTT, KDD and the Japan
Railways.
litigation and administrative procedure law 651
79
Narita supra note 62 at p. 231.
80
Gyòsei tetsuzuki hò kenkyùkai chùkan hòkòku, 810 Jurisuto 42 (1984), translated into
English as Report of the Administrative Procedure Law Study Commission, 19 Law
in Japan 90 (1986).
81
Takahashi supra note 61 at p. 45.
82
Gyòsei tetsuzuki hò kenkyùkai (dainiji) chùkan hòkòku [Report of the (Second)
Administrative Procedure Law Study Commission], 949 Jurisuto 100 (1989).
652 procedural law
83
Masaki Abe, Foreign Pressure and Legal Innovation in Contemporary Japan:
The Case of the Administrative Procedure Act, in The Proceedings of the 1995
Annual Meeting of the Research Committee on Sociology of Law, II Subtheme F.
litigation and administrative procedure law 653
84
Seki supra note 76 at p. 43.
85
For a German translation of this draft cf. “Entwurf eines allgemeinen Verwaltungs-
verfahrensgesetz in Japan” in Verwaltungsarchiv 56 ( January 1993) with explana-
tory notes by H. Shiono, id. at p. 45, and by M. Bullinger, id. at p. 65.
86
Takahashi supra note 61, M. Kobayakawa (ed.) Gyòseitetsuzukihò chikujò kenkyù
[Study of the Administrative Procedure Law Section by Section] Jurisuto July 1996;
K. Uga, Gyòseitetsuzukihò no kaisetsu [Interpretation of the Administrative Procedure
Law], 1994; S. Tanakadate, Gyòseitetsuzukihò no kaisetsu to un’yò [Interpretation and
Application of the Administrative Procedure Law], 1996 to name but a few.
87
Ködderitzsch, Japan’s New Administrative Procedure Law: Reasons for its
Enactment and Likely Implications, in 24 Law in Japan 105, 112 (published in
1994). Ken Duck, Now That The Fog Has Lifted: The Impact of Japan’s Adminis-
trative Procedure Law on the Regulation of Industry and Market Governance, 19
Fordham International Law Journal 1686–1763. Incidentally, administrative guid-
ance does not constitute in Japanese legal theory an administrative act because it
654 procedural law
4. Concluding Remarks
is unwritten as Ken Duck mentions (at p. 1705) but because it is not legally com-
pulsory and enforceable, even though it may very well in fact be quiet coercive.
For a translation of the Administrative Procedure Law in English cf. M. Lewin, 25
Law in Japan 125.
88
Ködderitzsch, Das neue Verwaltungsverfahrensgesetz in Japan – Versuch einer
ersten Bilanz, in 2 ZJapR pp. 131–137 (1996); for a German translation of the
Administrative Procedure Law cf. Sakurada/Bölicke in 5 ZJapR pp. 169–188
(1998).
law of civil procedure 655
Wilhelm Röhl
1
Principal sources: Ryòsuke Ishii, Meiji bunkashi, 2, Hòseihen (Cultural History of
the Meiji Era, vol. 2; Legal System, 1954, p. 232 et seqq., 413 et seqq.; translated
by William J. Chambliss, Japanese Legislation in the Meiji Era, 1958, p. 295 et
seqq., 490 et seqq. Kameichi Hosokawa, Nihon kindai hòseishi (Modern Japanese
Legal History, 1961, p. 316 et seqq. Hòsòkai ( Jurists’ Association) ed., Shihòenkakushi
(A History of Justice), 1939, passim.—For the earlier procedure see Dan F. Henderson,
Contract Practices in Tokugawa Japan, in International Encyclopedia of Comparative
Law, vol. VII chapter 6 ‘Contract in the Far East—China and Japan’, div. B (1992),
pp. 6–3 et seqq. with many notes on literature.
2
Craftsmen and tradesmen in contrast to the samurai and farmers in the social
order.
3
That department or ministry was combined with the Finance Department/Ministry
insofar as one minister and one vice-minister were in charge of both depart-
ments/ministries.
656 procedural law
4
Since 1767 there were official lists of usual legal transactions that were litiga-
ble. The suits arising from such transactions were divided into main suits (honkuji )
and money suits (kanekuji ) with different procedural handling. For details see Kingo
law of civil procedure 657
Kobayakawa, Kinsei minji soshò seido no kenkyù (Study of the Civil Procedure System
in the Recent Era), 1957, passim. Ryòsuke Ishii, Edo jidai manpitsu (Miscellany on
the Edo Era), 1961, p. 130 et seq. Dan F. Henderson, loc. cit. (note 1).
5
The term ‘judge’ or ‘court’ should be avoided since the judicature rested with
the administration. Therefore, the words ‘adjudicating officer’ and ‘-office’ are the
proper ones.
6
Attendant (aid or helper) = sashizoenin, tsukizoenin or kaizoenin.
(i) Persons who were unfit to plead owing to old age, illness or minority and also
women whose fitness to plead was generally limited were assisted by a guardian ad
litem who helped them in litigation and, should the situation arise, accompanied
them to court.
(ii) To this original meaning of a sashizoenin whose support served the litigant
exclusively and who has a successor in the form of the assistant (hosanin) under art.
88 of the present Code of Civil Procedure, K. Kobayakawa, loc. cit., examining
pre-Meiji documents, adds the interpretation that the term ‘attendant’ (sashizoenin
etc.) also meant a person who actually did not help the litigant nor plead in favour
of him. This ‘helper’ no longer exists and there are no traces of him in the pre-
sent legal system. He was a procedurally necessary helper and often identical with
the official who had tried in vain to get the parties to settle the dispute and, by
stamping the petition, had made it possible for the plaintiff to go to law. The same
went for the defendant whose answer was stamped by the proper local authority.
This interpretation, concluded from the use of the term ‘attendant’ in cases which
did not concern litigants under a disability, illuminates the fact that at that time,
generally, an individual was not free to take legal action but also in this respect
the authorities and the five-family-neighbourhood unit ( goningumi ) the head of which
could act as ‘helper’ kept always and everywhere an eye on the subjects’ way of
living. This type of sashizoenin did not help but control. For details see K. Kobayakawa
(note 4) at 419 et seq. and passim.—The ‘attendant’ did not have the function of
an attorney/lawyer.
658 procedural law
The parties to the suit were obliged jointly to state in writing that
the judgement had come to their knowledge.7 That rule was repealed
in 1873.8 Henceforth the parties got a copy of the written judge-
ment, officially sealed, and had to confirm the receipt. The judge-
ment in a case concerning boundaries was written down upon the
reverse of the survey. The new practice was the start of the modern
way of delivery of a document by the court.
About 1872 elements of present-day procedure began to appear.
On 9 April 1872 the Ministry of Justice informed the Central Chamber
(sei’in) of the dajòkan that there were no fixed regulations for the civil
procedure, that, as a matter of course, the process differed in the
prefectures, and that therefore a decree about the main points of
civil procedure was desirable. The Ministry submitted a draft of
‘Rules for Plaintiffs and Defendants’ (Genkoku hikoku jòrei ) and asked
for examination and rapid decision. But it came to nothing. When
the vigorous Shinpei Etò became the Minister of Justice on 2 June
1872, some progress was made.
An ordinance of the Ministry of Justice of 9 September 1872 did
away with some established usages, such as mixing civil and crimi-
nal instances or punishing parties to a lawsuit or witnesses for fail-
ure to appear, or other failings. Moreover, it was decreed that the
parties involved in litigation were to be treated kindly and under-
standingly. Thereby the position of the citizen in court was improved.
The setting of the trial too was changed. In the early Meiji era the
old venue was maintained: the places of trial were not separated
according to civil and criminal trials. In the case of commoners the
litigants sat outdoors in a yard, the floor of which was spread with
white sand, in front of the office (shirasu), while the adjucating officers
were placed on the veranda of the building. In the case of persons
of the sixth court rank or higher the trial was held in a room. On
10 November 1872 the Ministry of Justice, pursuant to the equality
of all men before the law, abolished the discrimination resulting from
the sand bar and had the commoners treated as equivalent to the
7
A premodern rule. The judgement was given orally and the parties wrote it
down, acknowledged the receipt of it and added their stamps. That document (saikyo
uke-shòmon) the text of which the parties promised not to dispute hereafter was
handed over to the office; it replaced the copy of the judgement. K. Kobayakawa
(note 4) at 473–475. R. Ishii (note 4) at 138.
8
Order no. 185 of the Ministry of Justice of 27 February.
law of civil procedure 659
nobles and the people of samurai descent. Those orders meant the
rejection of the idea that the administration of justice was an author-
itarian act of mercy.
The preliminary examination of the petition became the duty of
the adjudicating officer himself. If he opined that the petition was
not admissible he had to state the reason in writing and return this
decision together with the petition to the plaintiff. The preliminary
examination was done away with by a decree of the Ministry of
Justice of 5 April 1877, except petitions to the Supreme Court.
Another progressive ministerial decree of 28 December 1872 per-
mitted any citizen to take legal action if a regional officer or a vil-
lage headman had issued an order or taken a measure contrary to
an edict ( fukoku) of the dajòkan or a decree ( futatsu) of a ministry.
A remarkable step towards a systematic procedure was an ordi-
nance of 17 July 1873 concerning samples and forms of petition and
answers (sotò henrei oyobi shikiyò ). The ordinance was divided into two
chapters. Chapter 1 dealt with the written claim and consisted of
ten sections which regulated the following details:
– If the plaintiff did not know particulars of the name, address or
standing of the defendant he had, with a letter of introduction
from his local office, to apply for a certificate of those particulars
from the proper authority of the defendant.
– Then the plaintiff could have a scribe (daishonin)9 to draft the peti-
tion. The service of a scribe was obligatory but became optional
from 1874.
– In that respect five rules were to be observed:
(i) The wording had to be short and clear, describe a case capa-
ble of being proved, without literary embellishment and not
blurred by individual fantasy.
(ii) The petition had to begin with the names, addresses and
standing of the plaintiff and the defendant. At the end, the date
and the stamps of the plaintiff and the scribe had to be added.
(iii) The plaintiff himself had to sign the petition. If he was unable
to do so this had to be noted next to his name written down
in full.
(iv) The petition should contain 16 lines of 15 symbols (characters
and syllables) each; the original and the copy had to be filed.
9
See chapter ‘The Lawyer’.
660 procedural law
10
The distance produced an effect on the deadline for the answer.
11
By the return deed the debtor was entitled to demand of the creditor the
return of the security if the debt had been paid off on time. E.g. in the case of
borrowing, the security was constructed as sale and buy-back. The effect of that
transaction corresponded to the English equitable lien or the German Sicherungs-
übereignung.
law of civil procedure 661
12
K. Kobayakawa (note 4) at 363.
13
K. Kobayakawa (note 4) at 365.
14
In order to speed up the procedure measures of this kind are nowadays taken
by law elsewhere too.
662 procedural law
15
Or a prefectural office if no lawcourt existed in the region.
law of civil procedure 663
within three months from the date of the judgement. Thereafter the
appeal was inadmissible, but if the high court was more than 8 ri
(= 19,5 miles) away one additional day was conceded for every other
8 ri. The high court could confirm the first court’s decision or reverse
it and send the case back to the first instance or decide by itself.
If a court lower than the court of the last instance had made a
mistake in applying the law either party could, by way of re-appeal,
ask the Supreme Court to reverse the decision. The re-appeal, the
proper recourse in criminal cases too, could be backed up only by
the following circumstances: (i) the court had gone beyond its com-
petence, (ii) it had infringed procedural provisions or (iii) violated
substantive law. The re-appeal had to be filed within two months;
allowances were made for great distance to the same extent as in
the case of appeal. The Supreme Court could reject the re-appeal
or reverse the decision challenged, and then decide by itself or send
the case back to a different high court.
The procedure in the second and third instance has been described
in detail by Ryòsuke Ishii.16 Since the rules, in the main, concerned
technicalities and deadlines and there are no remarkable peculiari-
ties worth mentioning we need not repeat them.
If a debtor who had lost his case in court failed to pay his debt
within the time ordered by the court he was declared bankrupt upon
application of the creditor. Bankruptcy (shindaikagiri ) was an old legal
institution, somewhat different from the bankruptcy of today. That
procedure could be opened only as the consequence and served the
forcible execution of the judgement if the debtor did not pay. The
object of the execution was the property of the debtor.17 Originally,
following the order of the court, the debtor had, in the presence of
16
R. Ishii (note 1) at 249 et seq.; W.J. Chambliss (note 1) at 312 et seq. The
Supreme Court was patterned after France’s Cour de Cassation, Ishii/Chambliss,
loc. cit. at 222 and 285 respectively.—An apparent error of the translator should
be touched upon, Chambliss at 314. The head of the civil court section had to
appoint not a presiding judge (the head himself was the presiding judge) but among
the judges of the section a ‘special member in charge’ (senri’in) whose duty was to
prepare the case for deliberation, to report the facts and legal arguments to the
other judges of the section, and to write down the judgement agreed upon by the
judges after the hearing. It was he who read the case aloud in the courtroom on
the day of the hearing. In 1877 the senri’in was renamed shunin (person in charge);
R. Ishii, loc. cit. at 251.
17
Shindaikagiri means ‘limited to the assets’, there was no confinement in a debtors’
prison.
664 procedural law
a local officer, to make over his field, house, household utensils and
effects etc. to the value of the debt to the creditor. Later, the pro-
cedure war changed: the assets were sold and the creditor received
the money.18
The Meiji government took over that system but modified it by
several ordinances. First, on 28 July 1872 the Bankruptcy Regulations
for Peers, Ex-samurai and Commoners (Ka-shi-zoku heimin shindaikagiri
kisoku) were promulgated. They listed items that were exempt from
seizure, e.g. clothing, bedding, enough rice to feed the debtor’s fam-
ily for one month, cooking utensils, indispensable vocational things
and some additional items for peers and ex-samurai, e.g. robe, sword.19
Similar regulations ruled the execution of a judgement if the losing
party was a Buddhist priest (Sòryo shindaikagiri kisoku of 6 March 1873).
Other ordinances regulated or modified and amended the conditions
of shindaikagiri, with the result that the law of forcible execution was
composed of scattered regulations20 until the Commercial Law and
the Code of Civil Procedure of 1890 arranged the mercantile bank-
ruptcy and the forcible execution.
Back to litigation:
General principles of adjudication were set down by decree of the
dajòkan of 8 June 1875: ‘Rules for the Conduct of Court Affairs’
(Saiban jimu kokoroe), art. 3 of which has been dealt with in chapter
‘The Courts of Law’.21 The complete text of the decree was:
18
While shindaikagiri was an official way to execute a judgement in a particular
case another method led to an arrangement with several creditors at the same time.
As a rule the debtor could, with the consent of all his creditors or the large major-
ity of them, voluntarily abandon his whole property which was taken over by the
partaking creditors in order to auction the assets and distribute the proceeds pro
rata, remaining debts becoming due if the debtor one day should be able to pay.
That system (bunsan) was a kind of contract and no creditor was obliged to join in.
For the time being the two systems continued to exist but often got confused.
Under the (first) Commercial Law of 1890 the mercantile bankruptcy was called
hasan, bankruptcies of non-traders were regulated by the Law of Insolvency (Kaji
bunsan hò = Law for Household Distribution) of the same year. Under art. 384 of
the Bankruptcy Law (Hasanhò) of 1922 the Law of Insolvency was repealed and
from then the Bankruptcy Law applied to every bankruptcy.
19
For details see Ishii/Chambliss (note 1) at 252 and 316 respectively.
20
Their number amounted to 17 in 1888; Otto Rudorff, Die Rechtspflege in
Japan in der gegenwärtigen Periode (Meiji) (The Japanese Legal System in the
Present Era (Meiji), in Mitteilungen der Deutschen Gesellschaft für Natur- und
Völkerkunde Ostasiens (Reports of the German Society for Natural History and
Ethnology of East Asia), Tokyo 1888, p. 438 note 71.
21
Page 731.
law of civil procedure 665
1. Each court shall try both civil and criminal cases according to
law and without delay, and no court shall suspend trial and appeal
to a higher court on the grounds that a case is too complicated
and open to doubt. However, this does not apply to cases involv-
ing sentences of capital punishment and forced labour for life.
2. When application is made to disapprove a judgement, it is not
necessary to be justified in court; the court shall simply announce
that the appeal or re-appeal shall be filed within a prescribed
period according to established rules.
3. Judgement of civil cases shall be rendered according to custom
in the absence of law; and in the absence of custom they shall
be decided according to reason.
4. Pronouncements rendered by judges shall not act in the future
with the binding power of ordinary established rules.
5. With the exception of promulgated decrees and notifications, the
directives issued by the offices of the central government shall not
act in the future as ordinary established rules of authority for the
courts.22
For the first time, there was mention of the duty of the judges to
decide the cases lodged with the court. Thereby, the old rule that
the court could or had to send difficult, doubtful and specific cases
to a higher adjudicating authority23 became obsolete and the respon-
sibility, self-confidence and esteem of the judiciary was strengthened.
In civil conflicts an amicable agreement was always regarded as
the best way of settling, for which the parties and mediators had to
strive at all costs. Even if the quarrel had developed into a lawsuit
the adjudicating authority urged the parties at any stage of the pro-
cedure to bring the dispute to an end amicably.24 The Meiji gov-
ernment supported that tendency and cared for rules for the procedure
and jurisdiction by virtue of which the people were informed about
the way to the helping court. Under the order no. 66 of the Ministry
of Justice dated 27 September 1876 the thereby established local
courts were authorized to deal with mediation (kankai ). The three
22
Translation by W.J. Chambliss (note 1) at 307.
23
See chapter ‘The Courts of Law’ pp. 714, 716, 720.
24
Settling a dispute before an official judgement was a custom from old times.
The practice in actual cases and the legal method and significance as well as the
word for the settlement were somewhat different from time to time and from region
to region, but the principle was ubiquitous.
666 procedural law
A few pertinent comments should be made on the words. In Japanese there are
several terms for amicable settlement. Before the restoration the words naisai (Chambliss
(note 1) at 308 reads naizumi ), wayo, atsukai were in use. The expressions after 1868
in English translation have been defined by T. Kawashima, Dispute Resolution in
Contemporary Japan, in A.T. von Mehren, Law in Japan—The Legal Order in
a Changing Society, 1963, pp. 50–57:
– ‘Reconcilement’ and ‘conciliation’ mean the process by which parties to the dis-
pute confer with each other and reach a point at which they can come to terms
and restore or create harmonious relationships. Reconcilement is usually achieved
with the help of a prominent member of the social group to which either party
belongs. Conciliation is reconcilement through an outsider. Both events were
extrajudicial arrangements.
– In ‘mediation’ a third party offers his good offices to help the others reach an
agreement. The word is used as a legal term; the mediator is the lawcourt or a
special institution under law.
– ‘Arbitration’ is a stronger form of mediation insofar as the mediator is autho-
rized to decide like a lawcourt.
The term kankai was used from the early Meiji era as a legal court procedure pre-
ferred prior to a regular judicial proceeding. According to the abovementioned
definition it should be translated ‘mediation’. A statistic shows that over a period
of ten years in the eighties the kankai cases were five times more numerous than
the ordinary lawsuits (A.T. von Mehren, loc. cit. at 66, table 10). Kankai became
obsolete when the Code of Civil Procedure came into force. It was introduced anew
after World War I and renamed chòtei, see below.—In this chapter kankai and chòtei
are translated ‘mediation’.
25
Shihòenkakushi (note 1) at 31.
law of civil procedure 667
26
W.J. Chambliss (note 1) at 492 calls them ‘General Regulations for Mediation’.
27
R. Ishii (note 1) at 415 and K. Hosokawa (note 1) at 327. H. Suekawa (ed.),
Minji hògaku jiten (Dictionary of Civil Law), vol. 2, 1955, headword Minji chòtei hò
(Civil Mediation Law), says: one judge and one man of local reputation.
668 procedural law
not yet established thereby. The judge fixed a date for peacemak-
ing in court. If the parties agreed on a settlement28 the result was
put on record. If both parties appeared and a settlement could not
be achieved, at the request of both of them immediate pleadings
were ordered; in this case the petition was regarded as taking legal
action and the commencement of the lawsuit. As a matter of course,
a friendly settlement was attainable during the process as well, and
the court was required at any stage of the litigation to try to per-
suade the parties to settle the dispute, art. 136.
Apart from that the Code of Civil Procedure regulated the arbi-
tration procedure, art. 786 et seq. The old kankai procedure was no
longer in use.
The further development of the mediation system was advanced
when after World War I tenants of land, houses and farms, due to
the general economic situation, got into difficulties. Mediation, now
called chòtei, gained considerably in importance and special laws were
aimed at improving the conditions of distressed people in need of
protection. On 12 April 1922 the Leased Land and Leased House
Mediation Law (Shakuchi shakuya chòtei hò ) was promulgated. One year
before, the Leased Land Law (Shakuchihò ) and the Leased House Law
(Shakuyahò ) had been issued, which by limiting the rights of the land-
and house owners sought to strengthen the legal position of the ten-
ants. Disputes between owners and tenants had increased and the
Leased Land and Leased House Mediation Law served to mitigate
the strained situation. The party to the dispute could ask the local
court (by mutual agreement: the district court) for mediation. The
judge fixed a date for the hearing and summoned the parties and
persons interested, if any. The court was authorized to install a medi-
ation committee consisting of one judge and two members of spe-
cial knowledge and experience; they were appointed by the president
of the court yearly in advance. At the request of both parties the
committee had to go into action. The procedure of mediation lay
within the responsibility of the judge in charge; it was similar to
ordinary litigation. If no settlement was reached, the committee deter-
mined the clauses of a compromise with respect to the subject mat-
ter and the costs of the procedure, and sent the protocol thereof to
28
Kisomae no wakai = amicable settlement before taking legal action, or sokketsu
wakai = prompt settlement.
law of civil procedure 669
29
Also the mediation laws on leased land and house, tenant farming, commer-
cial cases and monetary indebtness were repealed, arts. 2 and 4 of the additional
rules to the Civil Mediation Law.
670 procedural law
30
Otto Rudorff, a colleague of Techow and writer of the first draft of the
Japanese Law for the Constitution of the Courts, said in a lecture on 30 June 1890
that he had read Techow’s draft and found a very large degree of correspondence
with the German code but only two or three instances, if any, of old Japanese view:
‘Die neueste Justizgesetzgebung Japans’ (The Recent Japanese Legislation on the
Judicial System), in ‘Mitteilungen etc.’ (note 20) vol. 5 (1890), pp. 215–216. The
author of this chapter having studied the draft in the German version cannot but
confirm that conclusion. Examples of accustomed features were the elongation of
terms depending on the distance from the party’s place of residence to the court
(one day per 8 ri ) and, in case of compulsory execution, the auction sale of immov-
ables by bids in writing (tender, nyùsatsu) if an interested person asked for this pro-
cedure or the court ordered it ex officio instead of oral offers in open court, artt.
702–705 Code of Civil Procedure. The tender system applied to the auction under
the Civil Code (Minpò ) too: Auction Law (Keibaihò, also read Kyòbaihò ) of 21 June
law of civil procedure 671
1898, art. 34. This law was repealed by supplementary art. 2 of the Civil Execution
Law (Minji shikkò hò ) of 30 March 1979 which took the place of the provisions of
the Code of Civil Procedure on compulsory execution. The Civil Execution Law
maintains the alternative tender system for the auction of immovables and chattels,
arts. 64 and 134, detailed by art. 120 of the Civil Execution Regulations (Minji
shikkò kisoku) issued by the Supreme Court on 8 November 1979.
31
See chapter ‘The Public Prosecutor’.
672 procedural law
32
If other persons were questioned on the occasion of taking evidence they too
had to swear an oath: experts, interpreters. The wording of the oath differed. The
witness swore that he would conscientiously tell the truth and neither conceal nor
add anything (art. 288 para. 2). The expert swore that he would conscientiously
give his expert opinion in good faith (art. 307), and the oath of the interpreter cor-
responded mutatis mutandis to that of the expert (art. 134).
33
The judge could make the party swear an oath, but that was not identical
with the old German system of interlocutory judgement about proof.
law of civil procedure 673
34
Book V was completely revised by the reform of 1926, law no. 61. The
674 procedural law
legislator intended to speed up the process generally and not make a distinction as
to the kind of suit. Therefore, the suits on documents and bills of exchange no
longer enjoyed preferential treatment and the pertinent provisions were repealed.
Book V was renamed ‘Default Action’ (Tokusoku tetsuzuki ), it ruled the summary pro-
cedure in the local court by means of an order for payment (shiharai meirei ). But
when in recent times the civil procedure became increasingly delayed, the proper
function of bills of exchange and cheques was taken into consideration and the law
no. 135 of 1964 introduced ‘Special Rules Concerning Suits on Bills of Exchange
and Cheques’ (Tegata soshò oyobi kogitte soshò ni kansuru tokusoku) as Book V–2.
law of civil procedure 675
35
The former bankruptcy procedure has been described in detail by R. Ishii/W.J.
Chambliss (note 1) p. 426 and 503 et seqq. respectively. Retelling here would not
produce any addition.
36
The creation of the old Commercial Code and its amendments are described
by H. Baum/E. Takahashi in this volume.
676 procedural law
Book III of the old Commercial Code was first put into force sep-
arately.37 When thereafter the two codes had been enacted in 1896
(the first three books of the Civil Code) and 1899 (the new Commercial
Code) both of which were strongly influenced by German law, Book
III of the old Commercial Code remained in force. But its French
lineage was soon regarded as being out of place in the new civil law
system and in itself incomplete. The government made efforts to
amend the law of bankruptcy. Some changes were enacted in 1899;
worth mentioning is the substitution of the principle of mercantile
bankruptcy for Roesler’s attempted compromise between the bank-
ruptcy of traders and that of non-traders. A merchant was declared
bankrupt by decision of the court upon application of himself or his
creditors or ex officio if he suspended payments.38 From then the
bankrupt, during the bankruptcy proceedings, was deprived of his
right to possess property, control property or dispose of it. The court
appointed a trustee in bankruptcy who had wide power. The cred-
itors had their claims registered. The creditors’ meeting was con-
vened, it could make decisions (there were no regulations for the
matters to be decided upon) provided that a majority in number
and value of the creditors was present; their resolutions required the
consent of the court. After the superior obligations and preferred
claims had been satisfied the remainder of the property, converted
into money by the trustee in bankruptcy, was distributed in an even
apportionment among the creditors.
On the occasion of the enforcement of the new Commercial Code
art. 1054 of Book III of the old one was amended: unless the debtor
had regained his civil rights he was not allowed to hold a position
with responsibility or unlimited liability in a company or as auditor,
liquidator, trustee in bankruptcy or with the Chamber of Commerce.
Already in 1902 the Codes Investigation Commission (Hòten chòsa
kai ), established in 1893 for deliberation on the forthcoming Civil
Code and Commercial Code, presented the draft of a Bankruptcy
Law (Hasanhò ) which was meant to bring the subject into line with
the German legal trend as realized in parts of the Civil Code and
the Commercial Code. There followed many years of discussion, and
37
Simultaneously the parts governing the law of companies and bills of exchange
were enforced.
38
That was of French origin; under German law the inability to pay was the
crucial point.
law of civil procedure 677
39
Founded on 19 April 1907 by Imperial order no. 133, put under the control
of the Minister of Justice, and assigned to examine and discuss civil and penal laws
specified by the minister. The chairman and up to 50 members were appointed by
the Cabinet upon petition of the Minister of Justice. The committee was dissolved
when on 8 July 1919 by Imperial order no. 323 the Special Council for Deliberation
on the Legal System (Rinji hòsei shingikai ) was established. This Special Council was
replaced by the Council for Deliberation on the Legal System (Hòsei shingikai ),
founded on 3 May 1929, controlled by the Prime Minister. Other deliberative com-
mittees followed.
40
It was not an urgent matter as during that time the number of litigations never
reached 0,5 per cent of the population. For litigations see Shihòenkakushi (note 1) at
553, for population E. Papinot, Historical and Geographical Dictionary of Japan
(1979), p. 804.
678 procedural law
bility of mediation. The law was repealed soon after the war but
the provisions about mediation influenced the later mediation system.
Under art. 77 of the Constitution of 1947 the Supreme Court is
vested with the rule-making power under which it determines the
rules of procedure and of practice. So it came about that the Supreme
Court played and plays an important role in bringing the civil pro-
cedure in line with judicial policies. The Constitution does not give
the order to reform the Code of Civil Procedure. But some changes
were really required merely with respect to the reorganization of the
courts of law. Moreover, experience had shown that a great num-
ber of appeals and re-appeals were ill-considered; only ten per cent
met with success. The burdens of the courts of the second and third
instance led to the situation that legal redress proceedings took from
five to fifteen years. Since the number of judges of the Supreme
Court was set at fifteen drastic means against a far too extensive
redress practice had become unavoidable.
A thorough reform could not be prepared in a short while and
there was no urgent need for it. Some issues, however, had to be
regulated at once: the Law for Emergency Measures Concerning
the Code of Civil Procedure Pursuant to the Enforcement of the
Constitution of Japan (Nihonkoku kenpò no shikò ni tomonau minji soshò
hò no òkyùteki sochi ni kansuru hòritsu), law no. 75 of 19 April 1947, in
force until 31 December 1948, arranged them. The law introduced
a special re-appeal to the Supreme Court as the organ authorized
under art. 81 of the Constitution finally to determine the constitu-
tionality of any law, order, regulation or official act and left those
changes which were to fit in with the new Court Law to government
ordinances. Law no. 149 of 12 July 1948 amended the order of
examination of witnesses after Anglo-American law and introduced
the cross-examination, but the judge himself could ask the witness
at any time, art. 294 of the Code of Civil Procedure. Besides, the
law inserted the above mentioned special re-appeal and the legal
redress of immediate complaint into the Code and further opened
the way to modify a judgement ex officio, thereby decreasing the
number of cases having decisions corrected by means of legal redress
only.
Next came the Law for Exceptions of Adjudgement on Civil Re-
Appeal Cases by the Supreme Court (Saikò saibansho ni okeru minji
jòkoku jiken no shinpan no tokurei ni kansuru hòritsu) of 4 May 1950. The
burdens of the Supreme Court had to be relieved: while the num-
680 procedural law
ber of re-appeal cases increased and the Supreme Court had the
additional task of examination of the constitutionality it consisted of
only fifteen judges, i.e. one third of the judges of the old Supreme
Court. Therefore the responsibility of the Supreme Court was lim-
ited to the adjudgement on re-appeals based upon violation of the
Constitution or infringement of a judicial precedent, moreover in
cases in which the Court recognized that they concerned significant
matters for investigation regarding the interpretation of laws and
ordinances. Common re-appeals against judgements of the district
court as the appeal court were to be filed with the high court.
Thereby the Supreme Court was freed from dealing with trifles.
Second instance judgements of the high court were reviewed by the
Supreme Court, and the special re-appeal was in any case admissi-
ble. The Law was intended to operate for two years pending a gen-
eral reform of the Code of Civil Procedure and prolonged for another
two years. It was replaced by law no. 127 of 1954 which was accom-
panied by an extension of the jurisdiction of the summary court from
a maximum value of the claim of 3,000 ¥ to 10,000 ¥ (amendment
of the Court Law). Law no. 127 prescribed that specific re-appeals
addressed to the Supreme Court had to be filed with the court of
the decision objected to instead of the Supreme Court, and that the
lower court examined the formalities of the re-appeal and rejected
it if they were not obeyed. Against that decision immediate com-
plaint was admissible.
By such means part of the Supreme Court’s load was taken off.
In the years following those first reforms there were, apart from
some trifling amendments, two important changes. The new Civil
Execution Law (Minji shikò hò ) of 30 March 1979 replaced the for-
mer articles on compulsory execution of the Code of Civil Procedure,
and the proceedings of attachment and temporary injunction were
newly regulated by a law of 22 December 1989.
It was years before a comprehensive reform of the Code of Civil
Procedure, long planned, was accomplished in June 1996, enforced
from 1 January 1998. The principal aim of the reform was to quicken
and concentrate the procedure. The work of the drafting committee
was influenced by recent German legislation and the good results
of this.41
41
Tei’ichirò Nakano gave a survey in Zeitschrift für Japanisches Recht ( Journal
of Japanese Law), vol. 6 (1998), p. 167 et seqq.
law of criminal procedure 681
Petra Schmidt
1. Introduction
1
hyòjò-sho
2
Òsadamegaki Hyakkajò; a 1792 compilation of existing criminal and procedure
laws by Shògun Yoshimune.
3
S. Dandò, Japanese Criminal Procedure (South Hackensack 1965) 14; Dandò
(ibid. at 18 note 3) describes Tokugawa period torture: “Torture included that car-
ried out in a place of confinement [ròmon] and that done in a special torture cham-
ber [gòmon]. Ròmon was usually whipping [muchi ] or ishidakase, in which the subject
was forced to kneel on serrated boards and heavy rocks placed around his thighs.
There was also an exceptional ròmon, ebizeme, in which the prisoner was tied around
neck and ankles by a special halter so that he had to sit forward over his legs. A
form of gòmon was tsurizeme, in which the prisoner’s arms were bound behind him
and he was suspended from the ceiling by his wrists.” See also J.C. Hall, Japanese
Feudal Laws-III. The Tokugawa Legislation—Part IV, The Edict in 100 Sections:
41 TASJ 683 appendix (1913); see also C. Steenstrup, A History of Law in Japan
until 1868 (Leiden . . . 1991) 154 et seq.; for a detailed study of criminal procedure
in the Tokugawa period see Y. Hiramatsu, Kinsei keiji soshò-hò no kenkyù [Studies in
premodern Law of Criminal Procedure] (Tokyo 1960).
682 procedural law
4
1868–1911
5
‘Why can we not revise the treaties forthwith? It is because our criminal laws
are not the same as [those of the West] and more especially because our methods
of administering criminal justice are clearly different from theirs’; T. Mamichi, On
Torture Part. II: 10 Meiroku Zasshi (1874) in: W.R. Braisted, Meiroku Zasshi:
Journal of the Japanese Enlightenment (Tokyo 1976) 127.
6
Dajòkan
7
sòsai
8
gijò
9
san’yo
10
Keimu jimu-ka
11
Keimu jimu-kyoku
12
Keihò-kan
13
K. Mukai/N. Toshitani, The Progress and Problems of Compiling the Civil
law of criminal procedure 683
Code in the Early Meiji Era, 1 Law in Japan (1967) 25, 28 et seq.; T. Odanaka,
Keiji soshò-hò no rekishi-teki bunseki [A Historical Analysis of the Code of Criminal
Procedure] (Tokyo 1976) 111.
14
Danjòdai
15
Gyòbu-shò; sometimes translated as Ministry of Punishments, see Mukai/Toshitani,
note 13, at 29.
16
T. Ishimaru, Keiji soshò no jitsumu, jò [Practice of Criminal Procedure, I] (Tokyo
1990) 1; Odanaka, note 13, at 113.
17
Feudal domain
18
Kari-keiritsu; for details see K. Mihara, Shikei haishi no kenkyù [Studies on the
Abolition of Capital Punishment] (Tokyo 1990) 93 et seq.
19
Odanaka, note 13, at 115.
20
Shinritsu Kòryò; Great Council of State (Dajòkan) Decree No. 94 of 1870; Japanese
text in K. Kondò [ed.], Shinritsu kòryò Kaitei ritsurei gòken chùshaku 1–6 [Commentary
on the Outline of the New Criminal Law and the Amended Criminal Regulations]
(Tokyo 1874); for a partial English translation see J.H. Longford, A summary of
the Japanese Penal Codes: 5 II TASJ (1877).
21
Kaitei Ritsurei; Great Council of State Decree No. 206 of 1873; Japanese and
English translations: see Kondò, note 20, Longford, note 20.
684 procedural law
reactionary. Since Japan at that time had not yet been subject to
much Western influence, the drafting committee had based its efforts
on the Law of the Chinese Ming-22 and Qing-23Dynasties.24 The Chinese
laws had not undergone fundamental changes since the Tang-period,25
whose laws had been adopted by Japan in ancient times and used
as a model for the early compilations of the Taihò-26 and the Yòrò-
Codes,27 introducing the so-called ritsuryò legal system. Thus the com-
pilation and enactment of the ‘Outline of the New Criminal Law’
and the ‘Amended Criminal Regulations’ in fact brought about a
revival of this ancient system. Another frequently cited argument for
the compilators’ choice of Chinese Law as a model for the Codes
allegedly lay in the purpose of further strengthening the restorated
government of the Meiji Emperor, since the last time the Tennò had
been the real head of the nation was at the time of the ritsuryò law.28
22
Ming-Dynasty: 1368–1644.
23
Qing-Dynasty: 1644–1911.
24
Code: Ta-qing-lü-li
25
618–906
26
701
27
718
28
It should be mentioned that the whole political system was based on that of
the heyday of the dynasty, a millennium ago, the best example herefore being the
reenactivation of the Great Council of State; Mukai/Toshitani, note 13, at 29.
29
Mamichi, note 5, at 128.
law of criminal procedure 685
30
T. Takada, Keiji soshò-hò [Law of Criminal Procedure] (Tokyo 1978) 13;
Braisted, note 5, at 100 fn. 8.
31
It forbade to torture persons older than 70 or younger than 15 years, or infirm
persons; in case of such a person being the suspect of an offense, a conviction was
not to be based on a confession, but on evidence such as testimonies of witnesses.
In cases of pregnant women, torture was not allowed until 100 days after having
given birth. An official who violated these provisions, was to be sentenced to 90
days imprisonment. If torture caused a miscarriage, the official’s sentence was
increased to 18 months, if the woman died, to ten years. Any official who illegally
tortured a suspect was to be sentenced to the same punishment as the suspect
received. If an official tortured somebody for personal revenge, he was to be
beheaded. Ishimaru, note 16, at 2–3; also see for further explanations: Longford,
note 20, at 115.
32
See P. Schmidt, Die Todesstrafe in Japan [Capital Punishment in Japan] (Hamburg
1996).
33
Ishimaru, note 16, at 3; T. Mamichi, note 5, at 128: ‘Torture is essential for us
because it is our general practice that there can be no judgment against a crimi-
nal without his confession even though evidence of the guilt is fully established’.
34
Gokutei kisoku
35
Dangoku kirei
686 procedural law
36
H. Maki/T. Fujihara, Nihon hòsei-shi [History of Japanese Law] (Tokyo 1993)
320; Odanaka, note 13, t 116.
37
An English translation of some interesting views on the abolition of torture,
written by T. Mamichi and published in the Meiroku Zasshi in 1874, can be found
in Braisted, note 5, at 94 and 127.
38
Shihò-shò
39
Justice Department Notice No. 19; physical torture had already been prohib-
ited in civil cases by Justice Department Notice No. 6 of 1872; K. Takayanagi, A
Century of Innovation: The Development of Japanese Law, 1868–1961, in: A. v.
Mehren [ed.], Law in Japan: The Legal Order in a Changing Society (Cambridge
1963) 15, 20.
40
H. Otake/H. Maki [ed.], Nihon hòsei-shi [History of Japanese Law] (Tokyo
1987) 285.
41
Great Council of State Decree No. 85 of 1876; Ishimaru, note 16, at 4.
42
Great Council of State Decree No. 42 of 1879; Takayanagi, note 39, at 20.
43
Domains
44
Dashin’in; Supreme Court.
45
Genrò-in
46
Chihò-kan kaigi
law of criminal procedure 687
47
Daishin’in
48
Kòtò saiban-sho
49
Fuken saiban-sho; in 1876 renamed in Ku-saiban-sho (Regional Courts).
50
Takada, note 30, at 14.
51
kenkan
52
Dandò, note 3 (1965), at 14–15.
53
Shihò-shò shokusei shòtei.
54
Justice Department Notice No. 10.
55
Tanaka, note 3, at 98; Odanaka, note 13, at 121 et seq.
56
Shihò-shò shokusei, kenji shokusei shòtei.
57
Odanaka, note 13, at 125.
58
Notice No. 47 of 1876.
688 procedural law
59
Justice Department Notice No. 4 of 1878; Otake/Maki, note 40, at 284,
Dandò, note 3 (1965), at 15.
60
fukoku furi
61
Kyùmon hanji shokumu kari-kisei.
62
Otake/Maki, note 40, at 284; Odanaka, note 13, at 126.
63
kòso
64
jòkoku
65
Great Council of State Decree No. 93.
66
Takayanagi, note 39, at 20.
67
Otake/Maki, note 40, at 285.
68
Chizai-hò; Japanese text in Y. Takada, Chizai-hò [Code of Criminal Instruction]
(Tokyo 1880).
69
Dajòkan seido-kyoku
70
W. Ishikawa, Keiji soshò-hò kògi [A Course in the Law of Criminal Procedure]
(Tokyo 1974) 12–13.
law of criminal procedure 689
the Great Council of State71 the Chamber of the Left72 was estab-
lished in July 1871, merging with the ‘Bureau for the Investigation
of Institutions’ the following month. Here, as well as in the Justice
Department, work on the translation continued with the ultimate
purpose of drafting a Japanese Code of Criminal Procedure.73
The initial work on the ‘Code of Criminal Instruction’ was begun
by the Justice Department in 1876, and was continued by the ‘Bureau
to Examine the Code of Criminal Procedure’,74 which had been
established within the Great Council of State in 1877.75 The com-
mission, including several Japanese jurists as well as the foremen-
tioned French jurist Boissonade, based its draft mainly on the French
Code d’Instruction Criminelle of 1808, and to a certain extent on the
laws of other nations as for instance Germany, Austria, and Egypt.76
After a revision with due reference to current Japanese laws and
customs, the draft was presented to the Meiji Emperor in September
1879. From there it was sent to another committee within the Senate,77
and further to the Great Council of State, where several changes
were made. These changes included for example the deletion of the
provisions on a jury system, which Boissonade had proposed to
incorporate in the Code of Criminal Instruction.78 By April 1880 the
draft reached the Senate for final modifications. It was promulgated
in July 1880,79 and went into effect in January 1882.80
71
Dajòkan
72
Sain
73
Ishikawa, note 70, at 12.
74
Chizai-hò torishirabe-kai.
75
S. Dandò, Shin-keiji soshò-hò saiyò [An Outline of the New Code of Criminal
Procedure] (Tokyo 1958) 14.
76
R. Ishii, Japanese Culture in the Meiji Era, Vol. IX, Legislation, translated by
W.J. Chambliss, (Tokyo 1958) 512; Otake/Makii, note 40, at 285.
77
Genrò-in
78
Boissonade had explained in his draft that the adoption of a jury system would
be of great importance to convince the Western powers of the modernity of the
system and the inpartiality of Japanese justice. The Japanese, however, believed the
adoption of a jury system to be premature, and abandoned the idea. Boissonade
tried again to have the idea adopted during the drafting of the Meiji Constitution,
but could not succeed; see Takayanagi, note 36, at 21. For details concerning the
planned jury system see G. Boissonade, Projet De Code De Procédure Criminelle
Pour L’Empire Du Japon Accompagné D’Un Commentaire (Project for a Code of
Criminal Procedure for the Japanese Empire, with Commentary) (Tokyo 1882) 115,
155 et seq.
79
Great Council of State Decree No. 37.
80
Ishikawa, note 70, at 12.
690 procedural law
As mentioned before, the ground for the Code had already been
prepared by several decrees for example on the abolition of torture,
a revision of the law of evidence, by requiring a formal accusatory
pleading for the commencement of the prosecution and the like,
most of which were incorporated in the Code of Criminal Instruction.
Although the Code was hardly more than a translation or at least
a very close adaption of the Code d’Instruction Criminelle, an important
step had been made towards the modernization of Japan’s legal
system.81
The Code, which for the first time dealt systematically and com-
prehensively with criminal procedure, comprised 480 articles in six
books on ‘General Provisions’, ‘Constitution of the Courts’, ‘Investiga-
tion’, ‘Public Trial’, ‘Duties of the Supreme Court and Execution of
Judgments’, ‘Rehabilitation and Amnesty’.82
Book I (General Provisions) mainly comprised provisions on the
legal procedure for civil suits, which were incidental to criminal
actions, and on the extinction of the right of public and private
action. ‘Public action’ was defined as a legal proceeding, which was
carried out by a public procurator to proof the infringement and
application of a law. ‘Private action’ was defined as a legal pro-
ceeding for the purpose of receiving compensation for damages
inflicted by an offender,83 following the Tokugawa period institution
of a petition for criminal investigation.84 Also, Art. 10 of the Code
of Criminal Instruction provided for prescription for the first time.
Since at the time of the enactment of the Code of Criminal
Instruction’s, no Law of the Constitution of Courts had existed yet,
the Code of Criminal Instruction’s second book dealt with the con-
stitution and the jurisdiction of the courts. According to the French-
style tripartition of offences in crimes, delittes and contraventions, Japanese
criminal procedure now distinguished between felonies,85 misde-
meanours,86 and police offences.87 The jurisdiction of a court depended
on the kind of offences that had been committed. As court of first
81
Dandò, note 75, at 15.
82
See also Boissonade, note 78.
83
See Arts. 1–4 Code of Criminal Instruction.
84
ginmi negai; Ishii, note 76, at 513.
85
jùzai
86
Keizai
87
Ikeizai
law of criminal procedure 691
instance the Peace Court88 handled police offences,89 and the Court
of Original Jurisdiction90 had the jurisdiction over misdemeanours
and over appeals in cases of police offences.91 Felonies were judged
either by a Court of Original Jurisdiction or by the Court of Appeals,92
which also opened in cases of appeals against decisions in misdeamour
trials.93 The Great Court of Judiciature94 opened in cases of re-
appeals, appeals for re-trials or for a decision on court jurisdiction,
or appeals for a change of venue for reasons of public peace or
morale.95 Furthermore, a Special Higher Court96 was established
exclusively to deal with offences against the Imperial Family or the
State, and with felonies or misdemeanours committed by members
of the Imperial Family or by imperially appointed officials.97
The concept of ‘flagrant crimes’98 was quite different from the pre-
vious law, with Art. 100 of the Code of Criminal Instruction defining
them as ‘offences, which have been actually carried out or have been
attempted and have been discovered on the spot’. Especially remark-
able was the general permission of arrest without warrant.
Criminal Proceedings were divided into three stages, viz. in ini-
tial investigation, preliminary examination, and main hearing. Whereas
the initial investigation was conducted by the procurator, the pre-
liminary examination was the task of the examining judge or mag-
istrate,99 who had to decide whether a case should be tried or not.100
Thus the third book of the Code of Criminal Instruction dealt with
the investigation of offences, indictment, and preliminary examina-
tion. The procurator could conduct an investigation upon his own
decision or upon complaint or accusation. In case of a felony, a
88
Ikeizai saiban-sho, Chian saiban-sho.
89
Art. 49 Code of Criminal Instruction.
90
Keizai saiban-sho, Shishin saiban-sho.
91
Arts. 66, 83 Code of Criminal Instruction.
92
Jùzai saiban-sho, Kòso saiban-sho.
93
Art. 75 Code of Criminal Instruction; the code did not recognize appeals in
felony-cases.
94
Daishin’in; Supreme Court.
95
Art. 94 Code of Criminal Instruction.
96
Kòtò hòin
97
Art. 98 Code of Criminal Instruction.
98
genkò-han
99
yosan hanji
100
U. Zong, Zur Geschichte der Kodifikation des Strafrechts in Ostasien [The
History of the Codification of Criminal Law in East-Asia]: 84 ZStW (1972) 434,
453 et seq.
692 procedural law
101
Prior to the enforcement of the Code it had been conducted before indict-
ment; Ishii, note 76, at 517.
102
Art. 170 Code of Criminal Instruction
103
Art. 210 Code of Criminal Instruction. The bail system had already been
introduced by the ‘Bail Regulations’ [Baishaku jòrei], Great Council of State Decree
No. 17 of 1877; Takayanagi, note 36, at 20.
104
fukoku furi
105
Art. 170 Code of Criminal Instruction.
106
shùkan-jò
107
kòin-jò
108
kòryù-jò
109
shùkan-jò
110
See Arts. 118–145 Code of Criminal Instruction.
111
Art. 127 Code of Criminal Instruction.
law of criminal procedure 693
112
Arts. 224–261 Code of Criminal Instruction.
113
See below.
114
Takayanagi, note 39, at 21; as to the preliminary examination, Great Council
of State Decree No. 54 of 1881 provided for the opening of trials without such an
examination in cases of police offences at the Peace Courts; Odanaka, note 13, at
129.
115
Takayanagi, note 39, at 20–21.
116
see Art. 140 Code of Criminal Instruction.
117
see Art. 378 Code of Criminal Instruction.
118
Art. 380 Code of Criminal Instruction.
119
Art. 382 Code of Criminal Instruction.
120
Art. 398 Code of Criminal Instruction.
121
Art. 276 Code of Criminal Instruction; although Art. 210 of the code stated
an exception for the stage of the preliminary investigation, and Art. 410 provided
for the appointment of an examining judge in case other offences had been uncov-
ered during trial.
694 procedural law
122
Art. 267 Code of Criminal Instruction.
123
See Art. 146 I Code of Criminal Instruction; this provision has not been
adopted by any of the later Codes.
124
Art. 329 I Code of Criminal Instruction.
125
Simultaneously with the Code of Criminal Instruction going into effect, the
Great Council of State temporarily prohibited by Decree No. 74 appeals in all
cases. This measure was made permanent in 1885. In the same year appeal became
permitted in misdemeanour cases, if the defendant deposited 10 Yen at the Court
upon filing for an appeal; Odanaka, note 13, at 128 et seq.; Ishii, note 76, at 522.
126
hijò hikoku
127
aiso
128
Tanaka, note 3, at 185; Odanaka, note 13, at 131.
law of criminal procedure 695
129
Hereafter: Meiji Code of Criminal Procedure, Meiji Code.
130
Nihon teikoku kenpò; for an English translation see e.g. H. Itò, Commentaries
on the Constitution of the Empire of Japan (Tokyo 1906).
131
Saiban-sho kòsei-hò; Law No. 8 of 1890, repealed by Law No. 59 of 1947;
Japanese Text: in Naikaku kanbò kiroku-ka [ed.], Genkò hòrei shùran, chù [Current Legal
Provisions Vol. 2] (Tokyo 1926) 1 et seq.
132
Keiji soshò-hò; Law No. 96 of 1889; enforced on 1 January, 1890; for an English
translation see J.E. DeBecker, Japanese Code of Criminal Procedure (Yokohama
1918).
696 procedural law
133
Art. 26 Meiji Code of Criminal Procedure.
134
Arts. 25, 27 Meiji Code of Criminal Procedure.
135
Art. 67 Meiji Code of Criminal Procedure.
136
Arts. 25, 212, 235 Meiji Code of Criminal Procedure.
137
Art. 219 III Meiji Code of Criminal Procedure.
law of criminal procedure 697
138
Art. 239 Meiji Code of Criminal Procedure.
139
Art. 237 Meiji Code of Criminal Procedure.
140
Art. 179 a Meiji Code of Criminal Procedure.
141
Art. 185 Meiji Code of Criminal Procedure.
142
koshò
143
Vide Art. 293 et seq. Meiji Code of Criminal Procedure.
144
Art. 267 Meiji Code of Criminal Procedure.
698 procedural law
145
Art. 268 Meiji Code of Criminal Procedure.
146
Retrial (saishin) upon request of the procurator for the first time had been
legally provided for in the Great Council of State Decree No. 8 of 1876 and
confirmed by Decree No. 49 of 1877. T. Odanaka/Y. Òda, Saishin hòsei no enkaku
to mondai [History and Problems of the Retrial System] (Tokyo 1980) 66.
147
Hereafter: Taishò Code of Criminal Procedure, Taishò Code; Japanese Text
in: Naikaku kanbò kiroku-ka [ed.], Genkò hòrei shùran, chù [Current Legal Provisions
Vol. 2] 468 et seq.
148
Keiji soshò-hò chòsa i’in-kai.
149
Hòten chòsa i’in-kai kisoku.
150
Hòten chòsa i’in-kai.
law of criminal procedure 699
Diet, with the draft’s main point being the abolition of secret cham-
bers for detention as a prerequisite for the revision of the unequal
treaties. The Lower House then added provisions on the introduc-
tion of counsel during preliminary examination, but met opposition
from the House of Peers, which eventually caused the postponement
of such a reform until a general revision of the Code.151 The ‘Com-
mittee on the Inquiry of the Codes’ in March 1901 finally prepared
a reform draft,152 which, however, was never submitted to the Diet.
In 1903 the committee was abolished, and thus all reform work
discontinued temporarily.153
In 1908 the Justice Department entrusted the ‘Committee on the
Examination of the Laws’154 with the work on a reform draft. Within
this committee, a Chairman’s Committee155 was established to delib-
erate on a reform, based on the draft of the ‘Committee on the
Inquiry of the Codes’. As a result a final draft had been completed
in September 1918 and adopted by the Chairman’s Committee, but
before the draft could be adopted by the ‘Committee on the
Examination on the Laws’, the committee was abolished in July
1919, and the reform work once again came to a halt.156
Thereafter, in April 1920, the Justice Department established the
‘Committee for the Inquiry on a Reform of the Code of Criminal
Procedure’.157 On the basis of the earlier draft, the committee com-
pleted a provisional draft in July 1921. A final draft was finished the
following month, and was adopted by the committee’s plenary ses-
sion in September.158 The draft then was submitted to the 45th
Imperial Diet in December 1921, adopted, enacted in 1922,159 and
came into effect on 1 January, 1924 as the ‘Code of Criminal
Procedure’.160
As mentioned, the influence of German law had grown stronger
since the middle of the Meiji period, eventually overtaking French
151
Odanaka, note 13, at 104; 154 et seq.
152
Keiji soshò-hò sòan.
153
Odanaka, note 13, at 104.
154
Hòritsu torishirabe-kai.
155
Shusa i’in-kai.
156
Tanaka, note 3, at 222; Odanaka, note 13, at 104 et seq.
157
Keiji soshò-hò kaisei chòsa i’in-kai.
158
Odanaka, note 13, at 105.
159
Law No. 75 of 1922.
160
Otake/Maki, note 40, at 356; for further details see Odanaka, note 13, at
375 et seq.
700 procedural law
161
As exemplified by the Criminal Code, which had been first enacted in 1890,
based on French law, but had been revised under strong orientation on German
law in 1907; Takada, note 30, at 16.
162
Takayanagi, note 39, at 22.
163
Art. 39 Taishò Code of Criminal Procedure.
164
Art. 288 Taishò Code of Criminal Procedure.
165
Art. 334 II Taishò Code of Criminal Procedure.
166
Art. 44 Taishò Code of Criminal Procedure.
167
Art. 45 Taishò Code of Criminal Procedure.
law of criminal procedure 701
168
Art. 46 Taishò Code of Criminal Procedure.
169
Art. 65 Taishò Code of Criminal Procedure.
170
Art. 158 Taishò Code of Criminal Procedure.
171
Art. 178 Taishò Code of Criminal Procedure.
172
Art. 227 Taishò Code of Criminal Procedure.
173
Art. 302 I Taishò Code of Criminal Procedure.
174
Art. 302 II Taishò Code of Criminal Procedure.
175
Art. 303 III Taishò Code of Criminal Procedure.
176
Art. 303 I Taishò Code of Criminal Procedure.
177
Art. 323 Taishò Code of Criminal Procedure.
178
Art. 326 Taishò Code of Criminal Procedure.
179
Art. 325 Taishò Code of Criminal Procedure.
180
Art. 338 Taishò Code of Criminal Procedure.
181
Art. 349 II Taishò Code of Criminal Procedure.
182
Art. 349 II Taishò Code of Criminal Procedure.
183
Art. 379 Taishò Code of Criminal Procedure.
184
Art. 290 Taishò Code of Criminal Procedure.
185
Art. 292 Taishò Code of Criminal Procedure.
702 procedural law
did not only start with the first hearing, but already upon indict-
ment, and the judge was allowed to interrogate the defendant prior
to the first hearing.186 Furthermore, documents could be examined,
and material evidence submitted by the prosecution, the defendant
or counsel.187 Moreover, witnesses could be summoned and ques-
tioned,188 and expertises, translations, confiscations, investigations or
inspections carried out.189 Thus the Taishò Code of Criminal Procedure
did not provide for the prevention of prejudices. However, the judge
did not only have access to all documents and evidence from the
opening of the trial, but if they were insufficient, he could investi-
gate additional evidence and information, and have the defendant
and counsel submit further material. Therefore the first hearing, after
the announcement of the facts of the crime, started with a detailed
questioning of the defendant.190 By the time of the first hearing, all
material at the hand of the court had been shown or read out.191
This investigation was public, and any material which had not been
subjected hereto, was not admitted as evidence.
6. Further Developments
It was also due to the liberalistic spirit of the Taishò period that in
1923 a Jury Act192 was enacted, providing for a certain democrati-
zation of the judiciary by allowing the participation of ordinary
citizens in the judiciary. Formed after the English model, a 12-member-
jury was established. But since the Meiji Constitution guaranteed all
Japanese subjects the right to obtain justice from professional judges,193
the jury was not authorized to decide on the guilt of an accused,
186
Art. 323 Taishò Code of Criminal Procedure.
187
Art. 325 Taishò Code of Criminal Procedure.
188
Arts. 324, 326 Taishò Code of Criminal Procedure.
189
Art. 327 Taishò Code of Criminal Procedure.
190
Arts. 134, 135 Taishò Code of Criminal Procedure.
191
Arts. 340–343 Taishò Code of Criminal Procedure.
192
Baishin-hò; Law No. 50 of 1923; for further details see H. Satò, Das Schwurgericht
in der Vergangenheit und über seine Wiedereinführung ( Jury Trial in the Past and
on its reintroduction), in: D. Oehler [ed.], Strafrechtliche und strafprozessuale
Fragen aus dem japanischen Recht (Issue in Japanese criminal law and criminal
procedure) (Köln . . . 1982) 27.
193
Art. 24 of the Meiji Constitution read: “No Japanese subject shall be deprived
of his right of being tried by the judges determined by law.”
law of criminal procedure 703
but its function was limited to decisions on matters of fact. The jury’s
verdict, however, could be overthrown by the court at any time.194
Eventually the prohibition of appeals against judgments in jury tri-
als as well as the high costs involved, led to the suspension of the
Law in 1943.195
But not only the Jury Act was doomed to failure, the Taishò Code
of Criminal Procedure, too, had difficulties in keeping up with the
intentions of the legislators. The disintegration of party politics, sup-
pression of democracy, the rule of the thoroughly feudalistic bureau-
cracy and eventually the nation’s route into militarism, ultranationalism
and eventually the Second World War, inevitably caused an author-
itarian interpretation and application of the Taishò Code of Criminal
Procedure. Not only party presentation was kept to the minimum
and simultaneously authoritarianism to the maximum, but also abuse
of the law could frequently be observed.196 The final blow to the
ideals and principles of the Code were dealt by the enactment of a
variety of special laws such as for example the ‘Peace Preservation
Law’,197 by which a special criminal procedure was established.198
The policy of aggression against China as well as several domestic
incidents related to the suppression of communism, set the signal
for the strict nationwide application of this Law and caused its
reform in the same year. It was further made clear by the reform
of the Jury Act in 1929, which excluded all offences against the
‘Peace Preservation Law’ from jury trials.199 In 1929, moreover, a
draft bill was completed, which provided for the separation of courts
and prosecution, thus preparing for the latter’s independence. In
February of that year, Justice Minister Hara attempted to realize
this separation by drafting a bill on the reform of a part of the ‘Law
194
Otake/Maki, note 40, at 357; Y. Noda, Introduction to Japanese Law (Tokyo
1976) 137 et seq.
195
Law No. 88 of 1943.
196
A. Idota, Keiji soshò-hò yòsetsu I [An Outline of the Law of Criminal Procedure,
Part I] (Tokyo 1964] 7.
197
Chian iji-hò; Law No. 46 of 1925; Japanese Text in: Naikaku kanbò kiroku-ka
[ed.], Genkò hòrei shùkan, chù [Current Legal Provisions, Vol. 2] (Tokyo 1926) 15 et
seq.; such law had been in effect in Japan since 1887 and had been revised sev-
eral times to meet conditions. By the 1920s the law provided for suppression of
anything that threatened “peace and order”. Hoyt, note 87, at 50.
198
Takada, note 30, at 16.
199
T. Odanaka, Keiji soshò-hò no shiteki kòzò [The Historical Structure of the Law
of Criminal Procedure] (Tokyo 1986) 4 et seq., 14, 251 et seq.
704 procedural law
200
Saiban-sho kòsei-hò-chù kaisei hòritsu-an.
201
Kensatsu-chò-hò-an
202
Kenmu kanji
203
As for example had been incorporated in the 1937 Law of Criminal Procedure
of the Japanese puppet state Manshuguo.
204
Odanaka, note 199, at 8 et seq.; Odanaka, note 13, at 16 et seq.
205
Kokubò hoan-hò; Law No. 91; for details see Odanaka, note 199, at 137 et seq.
206
For details see Odanaka, note 199, at 5 et seq.
207
Senji keiji tokubetsu-hò; Law No. XXX; for details see Odanaka, note 199, at
149 et seq.
208
Odanaka, note 199, at 202 et seq.
209
Odanaka, note 13, at 17.
law of criminal procedure 705
210
For an English translation see: EHS Vol. 7 No. 1000.
211
Temporary commission on the legal system; Rinji hòsei chòsa-kai.
212
Shihò hòsei shingi-kai.
213
Dandò, note 75, at 15.
214
Dandò, note 3, at 16.
706 procedural law
215
Nihon koku-kenpò no shiikò ni kansuru keiji soshò-hò no òkyù-teki sochi ni kansuru hòritsu;
Law No. 76 of 1947.
216
F. Aoyagi, Keiji soshò-hò tsùron, jò [:] (Tokyo 1962) 11.
217
Law No. 131 of 1948; for an English translation see EHS Vol. II No. 2600.
218
Dandò, note 3, at 16.
219
Arts. 31–40 of the Japanese Constitution.
law of criminal procedure 707
220
The institution of preliminary examination was abolished in 1947.
221
Arts. 189, 191 Code of Criminal Procedure.
222
Art. 247 Code of Criminal Procedure.
223
Art. 248 Code of Criminal Procedure; using their discretionary power, the
prosecutors have developed a highly thorough system of investigation, leading to
the consequence that only cases will be prosecuted, in which the prosecution is
absolutely sure of the guilt of the accused. Thus the acquittal rate of constantly
about 0.1% can be explained. See Saikò saiban-sho jimu sòkykou [General Secretariat,
Supreme Court] [ed.], Heisei go-nen shihò tòkei nenpò 2 keiji-hen (Annual Report of
Judicial Statistics, 1993, Vol. 2 Criminal Cases] (Tokyo 1993) 202.
224
There are, however, some special laws such as the ‘Law on the Prevention
of Subversive Activities’ Law No. 240 of 1952, which can be applied in case of
grave violations.
225
Also see Art. 212 of the Code of Criminal Procedure.
708 procedural law
after having notified the suspect of his right to remain silent226 and
to have counsel. Then the suspect has to be handed over to the
prosecution, where he can be held for another 24 hours, until when
the prosecution has to request commitment, which is to be set by a
judge for a term no longer than ten days, and can be expanded by
another ten days. If the prosecution does not institute charges within
this period, the suspect has to be released.227 There is no limit to
the period of detention after indictment.228
An accused can appoint a counsel freely at anytime, and the coun-
sel is entitled to peruse and copy all documents and evidence related
to the case.229 Art. 39 I of the Constitution guarantees the defen-
dant’s right to meet with his counsel without any official being pre-
sent, but a public prosecutor or policemen can designate the date,
time and place of such meetings.230 On the other hand, the counsel
does not have the right to be present during interrogations of the
defendant, conducted by the prosecution or police.231
Upon the prosecution having made an indictment, the case is
brought to court. In remarkable contrast to the Taishò Code, Art.
256 VI of the current Code of Criminal Procedure prohibits the
prosecution to attach any documents or evidence to the indictment,
to prevent prejudice on the side of the judge. The indictment is to
contain the name of the accused and other information about his
person, facts constituting the offence charged, and the offence.232
226
See Art. 38 of the Constitution.
227
Arts. 208, 208 a Code of Criminal Procedure.
228
This involves one of the greatest problems of post-war Japanese criminal pro-
cedure, since defendants are frequently detained in daiyò kangoku. This practice is
legitimized by the 1908 Prison Law (Kangoku-hò ) but criticized for infringing the
defendants’ rights to remain silent and to consult their counsel; see e.g. F. Igarashi,
‘Daiyò kangoku jittai-ron no kadai—Sakaguchi Tsutomu-shi no ‘daiyò kangoku no jittai’ ni kan-
ren shite [Practical Problems of Substitute Prisons—In relation with Sakaguchi
Tsutomus ‘The Reality of Substitute Prisons] (Tokyo 1978).
229
Art. 40; counsel is mandatory if a case is punishable by death penalty, life
imprisonment or imprisonment of three years or more, see Art. 289 I Code of
Criminal Procedure.
230
Art. 39 III; in practice this provision is interpreted as if such meetings needed
a permission of the prosecutor or police, and often meetings are restricted.
231
With detention seeming to be mistaken frequently for the purpose of extract-
ing a confession rather than the prevention of flight, it is not uncommon to arrest
and detain someone for a minor offence, and then interrogate him in connection
with a more serious crime. For details see e.g. Schmidt, note 32.
232
Art. 256 II Code of Criminal Procedure.
law of criminal procedure 709
233
See Arts. 326 et seq. Code of Criminal Procedure.
234
Art. 320 Code of Criminal Procedure.
235
Arts. 321 et seq. Code of Criminal Procedure.
236
Art. 318 Code of Criminal Procedure.
237
Art. 319 Code of Criminal Procedure.
238
Arts. 335–338 Code of Criminal Procedure.
239
See Schmidt, note 30.
240
kòso
241
jòkoku
242
Art. 411 Code of Criminal Procedure
243
See Arts. 410, 411 Code of Criminal Procedure
244
saishin
710 procedural law
all of the retrial requests so far, the grounds cited were ‘new definite
evidence’.245 After this provision had been initially interpreted very
strictly, the Supreme Court in 1975246 decided, it would be sufficient,
if new evidence would lead to ‘reasonable doubt’, thus applying the
principle of ‘in a doubtful case for the accused’.247
8. Conclusion
245
Art. 435 No. 6 Code of Criminal Procedure.
246
Supreme Court Judgment, 20 May, 1975: 29 Keishù 177;
247
For details see Schmidt, note 32.
the courts of law, appendix: execution of penalty 711
Wilhelm Röhl
1
The problem is discussed by C. Steenstrup, A History of Law in Japan Until
1868, at 72 (1991).
2
Steenstrup, (note 1), at 73.
3
R. Ishii, Nihon hòseishi gaisetsu [Outline of Japanese Legal History], at 404 foot-
note 4 (1960).
712 procedural law
4
Examples in Ishii, (note 3), at 472 footnote 4.
5
D.F. Henderson, Contract Practices in Tokugawa Japan, International Ency-
clopedia of Comparative Law, vol. VII, chapter 6, at 6–3 et seq. (1992).
6
The dates given in this chapter have been taken from various editions of Roppò
zensho (Compendium of Laws), quotations in relevant literature and occasionally
from Shihòenkakushi (History of Justice), Tokyo 1939, compiled by the Ministry of
Justice and edited by the Hòsòkai ( Jurists’ Association) on the occasion of the 50th
anniversary of the Saibansho kòsei hò (Law for the Constitution of the Courts). That
book contains historical records day by day (537 pages), a few charts, and a list of
judges and public prosecutors in high positions (280 pages). In some details the
dates recorded in the Shihòenkakushi differ from the dates given in the other sources.
the courts of law, appendix: execution of penalty 713
The difference is one or two days and may be explained by the fact that the
Shihòenkakushi reports the events within the Ministry of Justice. E.g. the Law for the
Constitution of the Courts was promulgated on 8 February 1890: Shihòenkakushi, on
10 February 1890: Roppò zensho. H. Kaneko, Saibanhò [Law of Judicature], at 50
(1959), follows the Shihòenkakushi, R. Ishii Meiji bunkashi, 2, hòseihen [Cultural History
of the Meiji Era, vol. 2, Legal System], at 404 (1954), agrees with Roppò zensho. It
can be concluded that the Ministry of Justice issued the law to be published on 8
February and that it was inserted in the Official Gazette or otherwise promulgated
on 10 February. Moreover, it should be added that the ‘History of Justice’ now
and then refrains from noting events which concerned the judicial system but did
not have their origin in activities of the Ministry of Justice.
The western calendar was not applied in Japan until 1 January 1873; the ear-
lier dates were transformed here into the western calendar according to the table
in Nihon kindai shi jiten [Dictionary of Modern Japanese History], edited by the
Literary Faculty of Kyoto University, at 825 et seq. (1958).
7
W.J. Chambliss, Japanese Legislation in the Meiji Era (adapted translation of
Ishii’s work, note 6), at 110 (1958), calls it “Section of Justice”.
8
Chambliss, note 7, at 111: “Office of justice”.
9
Generally, the number of staff of the offices was small. Even in the more
important Sections of Finance and of the Interior there were only 12 officials, see
Y. Someno, Saiban seido [ Judicial System] in Kòza Nihon kindai hò hattatsushi [Lectures
on the History of the Development of Modern Japanese Law], vol. 6, at 31 foot-
note 5 (1959). Someno cites from a biography of Takayoshi Kido that no achieve-
ments of those offices are known.
10
The exact date and government office of its origin is not precisely clear. The
Shihòenkakushi does not mention it, but the Penal Law Administrative Secretariat is
supposed to have had a hand in it.
714 procedural law
The Penal Law Office existed until 15 August 1869. There were
three spheres of activity: inspection, criminal justice, and arrest. But
the competence of the office, like that of its predecessors, was extremely
limited. The jurisdiction reached as far as Kyoto and its environs
only, and most cases of some importance went to the heads of the
government for decision. The competence of the office did not even
extend to all criminal proceedings; when a branch bureau of the
Penal Law Office had been established in Tokyo on 26 November
1868 the competence there was split under the order of 26 January
1869: the office had to deal with crimes committed by samurai, and
other persons were tried by the municipal authorities. Civil cases,
generally, did not attract the attention of the government; they were
sent to the Office of Finance if the local authorities regarded them
as difficult.
This organization of the judicature clearly indicated that jurisdic-
tion was a part of the administration and that executive officials had
to look after the tasks of judges. The proclamation of the division
of powers in the Seitaisho [Document on the Form of Government]
of June 1868 did not improve the situation.
The assignment of ‘inspection’, however, invested the Penal Law
Office with a wide competence: it was to control any governmental
executive department by travelling officials. But the government
thought this task so important that it revived the ancient danjòdai
(Board of Censors, Censorate) on 1 July 1869 and transferred the
job from the Penal Law Office to the Censorate, from where the
‘inspection’ returned to the Ministry of Justice on 24 August 1871.
The government and the central offices moved from Kyoto to
Tokyo on 5 April 1869. The moving did not manifest that the power
of the government had by now extended over all Japan. The main
part of the judicature still rested with the feudal lords of the han,
the continued existence of which hindered the development of national
unity in other respects as well. Of all the domestic policies the great-
est, most urgent and difficult commitment was the abolishment of
the rule in the feudal domains. The fu-han-ken-system11 was a first
step towards that end but it did not change the former structure
substantially. The judicature continued to be disconnected and com-
plicated although the Penal Law Office, differently from its prede-
11
See chapter 1.
the courts of law, appendix: execution of penalty 715
When, in July and August 1869, the feudal lords had surrendered
their domains to the crown and the national government had gained
formal control over the whole country, the central administration was
organized anew, the pattern for which was the ancient regime of
the 8th century.12 Within the government, the Department of Criminal
Affairs ( gyòbushò ) was established as the successor of the Penal Law
Office. Its responsibility was still limited to penal law. Civil law was
administered by the Department of Civil Affairs (minbushò, in 1873
renamed naimushò = Ministry of the Interior), and the third division
of justice was the Censorate outside the departments. The Censorate
had the task “to put the laws into effect, to safeguard the regulations
12
See chapter 1.
716 procedural law
13
“1870” in chapter ‘Criminal Procedure’ corresponds to the old calendar according
to which the law was promulgated on the 20th day of the 12th month of Meiji 3.
the courts of law, appendix: execution of penalty 717
14
English text in Chambliss, note 7, at 717.
15
A minister was appointed no sooner than on 2 June 1872. Until then the vice-
ministers Takayuki Sasaki and, after his departure to Europe in the entourage of
T. Iwakura in December 1871, Tamaki Shishido were the heads of the Ministry
of Justice.
718 procedural law
16
M. Watanabe, Genkò hòritsugo no shiteki kòsatsu (Study of the History of the
Present Legal Terms), at 270 (1930).
17
See Kan’i sòtò (Equivalence of ranks and titles) in Tòkyò teikoku daigaku shiryò hen-
sanjo, Dokushi biyò [Requisite for Reading History], at 536 (1942).
18
District of Tokyo, site of the foreign concession.
the courts of law, appendix: execution of penalty 719
Shinpei Etò, 1834–1874, came from the Saga clan which already
prior to the Meiji era had welcomed a knowledge of western coun-
tries as a means of developing absolutism, and similarly to the
Satsuma-clan stood for the fall of the bakufu. Etò too was full of
progressive spirit during his political career. He was Secretary of
State in the Ministry of Education, Vice-President of the Left Chamber
and became Minister of Justice on 2 June 1872. When he took up
this office he was confronted with the problems described above: the
jurisdiction of the regional authorities and its inclusion in the exec-
utive. Etò tried determinedly and firmly to do away with these obsta-
cles to the installation of a modern system of justice. After four weeks
he achieved a new definition of the responsibilities of the Ministry:
unity of the courts of law under the Ministry and handling of all
cases by these courts, reports on cases which had to be judged by
the emperor, general control including promotion and degradation
of judges by the minister or vice-minister, drafts of new laws, deci-
sion when a court was in doubt about a matter, deliberation and
judgement on misdeeds of judges, deliberation and judgement of a
court on crimes affecting the government by consent of the minis-
ter or the vice-minister only. So, no institution other than the courts
of law, all of which were now in the sphere of the Ministry of Justice,
was entitled to dispense justice—except for cases to be submitted to
the emperor or affecting the government. At the same time Etò
asked the government to take steps to withdraw the judicial offices
from the prefectures. In the main, from now on the influence of the
executive on the judicature was averted.
The new definition of the responsibilities of the Ministry of Justice
was followed by a decree of the government called Shihòshò shokusei
shòtei, afterwards renamed Shihòshò shokumu teisei [Office Regulations
for the Ministry of Justice] of 5 September 1872. They consisted of
720 procedural law
19
Someno, note 9, at 69 footnote 5.
20
On 10 December 1873 its jurisdiction was extended to appeals against deci-
sions of the Justice Ministry Court as the court of the first instance.
the courts of law, appendix: execution of penalty 721
21
Ishii, note 6, at 217. In 1871 the monetary system had been reformed and
one new yen was treated as equivalent to one old ryò.
22
Someno, note 9, at 63. The Shihòenkakushi, note 6, did not mention those rules.
An entry under the third month of 1872 states that six residences of former feu-
dal lords and two premises of the bakufu were allotted to the Ministry of Justice for
use. According to Someno, note 6, at 58 footnote 6, for every two of the six dis-
tricts of Tokyo a local court was set up at that time.
23
Decree of 5 September 1872. For more details see chapter ‘The Public
Prosecutor’.
722 procedural law
24
In their home posts they were tenji or gontenji, verbally: persons who manage
affairs and their assistants. Those posts had been created in January 1870 in the
municipal prefectures and in 1871 in the rural prefectures.
25
tokibe = persons who had to clear (the facts of a case) were employed also by
the Department of Criminal Affairs (gyòbushò) since August 1869. Their duty there
was to examine the case closely and prepare the judgement.
26
Someno, note 9, at 72 footnote 16.
the courts of law, appendix: execution of penalty 723
Jurisdiction in criminal cases passed from the Tokyo Court for the
Open Markets to the Tokyo Prefectural Court on 13 February 1873,
civil cases followed in July 1875. Thereby, an ordinary law court
became responsible also for cases in which foreigners were involved.
All of Etò’s measures aimed to unite the judicature organizationally
and entrust it to the courts of law exclusively, to make jurisdiction
transparent and open access to the courts for anybody, to have only
the Ministry of Justice control the judges and public prosecutors, and
to see to it that the Ministry had the right to a say in legislation.
However, Etò did not succeed in doing away entirely with the juris-
diction of the regional authorities and finally preventing interference
by the Ministry of Finance which controlled the prefectural admin-
istration. When disturbances broke out in four prefectures at the
beginning of 1873, the Ministry of Finance granted the regional
authorities the right to take “measures appropriate to the situation
by a summary trial”. Officials of the Justice Ministry were sent to
two of the prefectures in order to deal with the affairs, but in the other
two prefectures officials of the regional authorities or of the Finance
Ministry issued directives without contacting the Justice Ministry.
When, in 1873, an anti-Japanese incident occured at Phusan in
Korea, the previously discussed issue of a military invasion of Korea
was put on the agenda again. At the request of field marshal Takamori
Saigò the government resolved to invade Korea. The Minister of
the Right Tomomi Iwakura, returning from a journey abroad,
opposed the resolution and it was not carried out. Etò had joined
the politicians who supported Saigò’s motion. He resigned on 24
October 1873 and other ministers followed suit around that date.27
Prior to Etò’s resignation the executive had already set about enforc-
ing its traditional precedence over the judicature and not allowing
27
Etò returned to his home prefecture Saga, put himself at the head of groups
of conservative samurai who were discontented with the new conditions and stood
for the invasion of Korea. In 1874 he had rallied about 3,000 supporters around
himself and prepared for battle. Government troops suppressed such actions imme-
diately and arrested Etò. A court extraordinary condemned him to death and expo-
sure of his head on 13 April 1874. Posthumously, the amnesty on the occasion of
the promulgation of the Constitution in 1889 was granted to him too.
the courts of law, appendix: execution of penalty 725
28
Here the word naikaku = ‘cabinet’ was used; it became meaningful under con-
stitutional law no sooner than in 1885.
29
‘Case of the Ono-group’. The official was accused mainly of having delayed
the permission to move the headquarters of the commercial and financial business
house of the Ono-group from Kyoto to Tokyo. The Ono were an old family of
merchants. At the end of the 17th century they dealt in imported wild silk, the
trade in which was monopolized. Later on, they were exchange brokers and sup-
ported the Meiji regime financially.
30
Someno, note 9, at 76 footnote 33. Typically, the issue was not mentioned in
the Shihòenkakushi (note 6) since the Rules were not made by the Ministry of Justice
and the Ministry had not come out of the matter very well.
31
The Rules were renewed in February 1875 just for show with respect to a
single case. In 1871 the State Councillor Saneomi Hirosawa had been murdered
but the murderer not been found. In order to avoid criticism of the investigation
726 procedural law
34
Mitani Sankurò jiken and Yamashiroya (Wasuke) jiken, see Nihon kindaishi jiten
(Dictionary of Modern Japanese History) (1959).
35
Note 20 and 30.
36
And from there to the regional authorities again in October 1874.
37
Someno, note 9, at 78.
728 procedural law
38
Someno, note 9, at 69.
39
Above note 27.
40
Pp. 662, 688.
41
Above note 31.
42
Nihon Bengoshi Rengòkai, Nihon bengoshi enkakushi [Union of the Japanese Bar
Associations (ed.), History of the Japanese Lawyers], at 36 (1959).
the courts of law, appendix: execution of penalty 729
43
See chapter 1.
730 procedural law
44
This sphere of activity should have resulted in putting an end to the court
extraordinary (rinji saibansho). But soon afterwards three courts extraordinary were
opened in the centres of the Hagi insurrection, namely Hagi, Fukuoka and Kumamoto
on 11 November 1876. The presiding judges were professional judges. Other courts
extraordinary were established within the Supreme Court, thus in the case of
Tsunayoshi Òyama, former prefect of Kagoshima who had been involved in the
rebellion of Takamori Saigò, on 23 March 1877; the case was referred to the
Kyùshù Court Extraordinary which opened on 2 April 1877. Also, from 17 May
1878 a court extraordinary within the Supreme Court heard the case of Ichirò
Shimada and others who had murdered the state councillor Toshimichi Òkubo
three days before; they were sentenced to death on 27 July 1878. A court extra-
ordinary could deal with civil actions too, e.g. from 27 February to December 1876
in the case of a collision of the steamer Osaka-maru held by the admiralty and the
steamer Nagoya-maru owned by the Mitsubishi company in the sea of Suò. In any
case, at least from 1877, the Supreme Court passed judgement in serious political
matters in the form of court extraordinary, the members of which were not nec-
essarily professional judges of the Supreme Court. That was based on applications
of the Justice Minister to the government for permission to set up a court extra-
ordinary. Contrary to the system the applications were granted. That the influence
of the executive on the judiciary continued became evident also in the government
decree no. 8 of 31 January 1876 by which the Justice Minister, if he did not agree
with a final judgement, was authorized, even after the deadline for appeal had
expired, to instruct the Chief Public Prosecutor to lodge an appeal or instigate the
court to resume proceedings. Y. Someno, Shihò seido (System of Justice) in Kòza Nihon
kindaihò hattatsushi (Lectures on the History of the Development of Modern Japanese
Law), vol. 2 at 116 (1958).
the courts of law, appendix: execution of penalty 731
45
Translation by Chambliss, note 7, at 307.
46
See G. Rahn, Rechtsdenken und Rechtsauffassung in Japan (Legal Thinking
and Understanding in Japan), passim (1990). T. Bölicke, Die Bedeutung des Begriffs
jòri für die japanische Rechtsquellenlehre (The Significance of jòri in the Japanese
Doctrine of Sources of Law), in 1 Zeitschrift für Japanisches Recht (1 Journal of
Japanese Law), at 7 et seq. (1996). W. Röhl, Rechtsgeschichtliches zu jòri ( Jòri in
the History of Law), in H. Menkhaus (ed.), Das Japanische im japanischen Recht
( Japanese Features in Japanese Law), at 39 et seq. (1994).
47
Ishii, note 6, at 221; Chambliss, note 7, at 284. According to O. Rudorff,
Die Rechtspflege in Japan in der gegenwärtigen Periode [Meiji] (The Japanese Legal
System in the Present Era [Meiji]), 40 Mitteilungen der Deutschen Gesellschaft für
Natur- und Völkerkunde Ostasiens (Records of the Association for East Asian Natural
732 procedural law
History and Ethnology), at 427 (1888), one High Court judge and two judges from
the Prefectural Court.
48
Kusaibansho kari kisoku (Provisional Rules for Local Courts) of 27 September
1876. These rules amended the Saiban shichò kari kisoku (Provisional Rules for Branch
Courts) of 28 December 1875. Branch courts of prefectural courts had been erected
since 1872 (the first were three branch courts of the Kisarazu Prefectural Court at
Òami, Katsuura and Hòjò/Tateyama/ in the present Chiba prefecture on 13
September 1872 (old calendar: 12 August 1872)) and continuously set up further
on a level with local courts, although local courts (kusaibansho) were introduced in
September 1872. The branch courts were a means to reach judicial blanket cov-
erage also in districts where a local court was lacking. The branch courts were,
regardless of the amount in dispute, authorized to conduct conciliation proceedings
in civil cases (for details see Chambliss, note 7, at 309).
49
This name had been in use already earlier.
50
For example: The Kisarazu prefecture (south-east of Tokyo on the other side
of the bay) had been formed of more than a dozen small prefectures in December
1871, and the Kisarazu Prefectural Court with three branch courts had been set
up on 13 September 1872 (see note 48). The Kisarazu prefecture and two other
prefectures were combined in the Chiba prefecture in 1873/74; the Kisarazu Court,
the branches of which meanwhile had been renamed local courts and two of them
been dissolved afterwards, came to be the Chiba Prefectural Court which under
this name was united with the neighbouring Inba Prefectural Court, moved to Chiba
and became the prefectural Court of the Chiba prefecture on 24 June 1873; sev-
eral local courts were set up afterwards. When on 13 September 1876 the district
courts took the place of the prefectural courts, a disparity went along with the new
system: in 1875/76 there were 63 prefectures, but only 23 district courts were estab-
lished. 14 of them had jurisdiction over two prefectures each, one over three fu/ken,
eight over one prefecture each (Sihòenkakushi, note 6, at 35); so the 23 district courts
covered 39 prefectures. The Tokyo Court served as the district court for the Tokyo
municipal prefecture and the Chiba prefecture. The development of the Kisarazu
Court illustrates the generally winding road towards a solid order in the judicial
system which was achieved many years later. It should be added that near the mid-
the courts of law, appendix: execution of penalty 733
first instance in all civil and criminal cases. If the death penalty
should be imposed the prefectural court prepared the case and sub-
mitted it to the circuit court. In cases of imprisonment for life the
prefectural court had to obtain the approval of the high court.
The four high courts as the courts of appeal in civil cases were
superior to the 23 district courts; each of those was placed in the
area of jurisdiction of a high court in such a way that the prefec-
tures belonging under the jurisdiction of a high court were enu-
merated.—New rules for means of legal redress were laid down.
Under the former rules of 1872 the decisions of local courts could
be re-appealed to prefectural courts and those of the prefectural
courts could be re-appealed to the Justice Ministry Court. The word
‘re-appeal’ ( jòkoku), as it was then used, denoted a retrial, i.e. a sec-
ond trial or hearing in the same manner as that of the lower court,
therefore jòkoku actually was an ‘appeal’ (kòso). Under the new rules
‘appeal’ (kòso) was a second hearing of the case and permitted in
civil cases only, while ‘re-appeal’ ( jòkoku) was a demand for review
for the reason that the lower court had exceeded its authority, con-
ducted the proceedings irregularly or violated substantive law. Re-
appeal was made available to civil cases, but prescribed as the only
recourse for criminal cases except for summary offences and capital
crimes.51 In criminal matters the high court had to examine the cases
submitted by a prefectural court, together with the proposal to impose
penal servitude for life, and decide on offences of advocates (daigen-
nin) and scribes (daishonin).52
dle of the seventies the number of prefectures changed now and then, and once
there were 47 prefectures without a court (Ishii/Chambliss, notes 6 and 7, at
220/283).
51
Ishii/Chambliss, notes 6 and 7, at 265/330. The reason for the exclusion of
appeal in criminal cases has been explained by Someno, note 44, at 109, arguing
that at that time the problem of the guarantee of human rights was not yet brought
up in criminal procedure. This argument is not beyond all doubt in case of capi-
tal punishment, for those sentences had to be sent to the Supreme Court for approval
and thus were subject to re-examination; but, admittedly, the re-examination did
not have to inquire into the correctness of finding the true facts of the case. The
draft of the Code of Criminal Instruction of 1880 connected the restriction of appeal
with the jury system, see below. The exclusion of summary offences from re-appeal
proceedings freed the high court from dealing with trifles, and the exclusion of cap-
ital crimes is justified under the regulation that a lifelong jail sentence required the
approval of the high court and a capital punishment was re-examined by the
Supreme Court in any case by virtue of the law.
52
Rules for advocates and scribes were enacted by the Office Regulations for
734 procedural law
In the high court one judge conducted the proceedings and dis-
cussed the judgement with another judge.
The amendments of September 1876 indicated that the reform of
the judicial system was not deemed final by the establishment of the
Supreme Court and the accompanying acts. In 1877 numerous alter-
ations were made. The regional officials were no longer authorized
to look after judicial matters, only on the seven islands of Izu and
the faraway Bònin Islands (Ogasawara) the old conditions remained
in force. By and large, the organizational independence of the courts
was achieved with minor exceptions. At the same time (February
1877) the sole jurisdiction of the Supreme Court over important
criminal cases ended, the regulations for the circuit courts ceased to
be in force, and the presidents of the Supreme Court and the high
courts lost the right to interfere in reaching a verdict. However, in
practice the jurisdiction by circuit courts continued because in cases
calling for a death sentence it was difficult to decide on the basis of
a written report of a lower court only.
the Justice Ministry of 5 September 1872. Advocates had to present the facts of a
case for people who were unable to sue by themselves. It was forbidden to make
false statements (art. 43–1). Scribes prepared the written pleadings for others, they
were obliged to see that nothing was omitted (art. 42–1).
53
See chapter 9.3.
54
The Special High Court consisted of seven members of chokunin-rank, namely
the courts of law, appendix: execution of penalty 735
three councillors of the Senate ( genròin) and four judges of the Supreme Court; they
were appointed every year in advance by decision of the Emperor. The Court dealt
with one case only: the Fukushima case. The governor of the Fukushima prefec-
ture had been sent to his post in connection with the repression of the Liberal-
Democratic Movement ( jiyù minken undò ), the centre of which in that region was
Fukushima. When the governor initiated road construction on a large scale and
imposed the cost of it on the population Hironaka Kòno, member of the Liberal
Party and chairman of the prefectural assembly, opposed and blocked the decision
on the prefecture’s budget. Acts of violence occurred, and a high official of the
roads department was killed. The governor had more than 3,000 persons arrested
and sent fifty of them to Tokyo for criminal prosecution for plotting a revolt. On
1 September 1883 the Special High court sentenced seven accused to prison for
many years. Kòno got seven years but was pardoned by an amnesty when the
Constitution was promulgated. Later, he became a member and president of the
Lower House of the Parliament and afterwards Minister of Agriculture and Commerce.
736 procedural law
9. The Law for the Constitution of the Courts (infra abbreviated LCC)
55
O. Rudorff, Commentar zum Gerichtsverfassungsgesetze für Japan (Commentary
738 procedural law
on the Japanese LCC), edited by Shihòshò chòsabu (Research Division of the Ministry
of Justice), Shihò shiryò (Historical Materials on Judicature) no. 259, German part,
at 27 (1939).
56
Horitsu torishirabe i’inkai.
57
Word-for-word record printed in Rudorff, note 55, Japanese part, at 255–767,
more than fifty years after the discussions. The editor remarked at 767 that there
were uncertainties and mistakes but the print was true to the original.
58
K. Hosokawa, Nihin kindai hòseishi (Modern Japanese Legal History), 307 (1961).
59
A. and L. Mosse, Fast wie mein eigen Vaterland (Nearly as Dear as my
Fatherland), 331 (1995).
60
Rudorff’s original draft (gen’an) as well as the second draft (sòan) had been
translated into Japanese. In his commentary (note 55, at 27) Rudorff explained
some uncertainties of concepts and terms by the fact that some expressions in the
German text had no equivalent in English legal terminology. The committee repeat-
edly argued from all three versions: Japanese-English-German.
the courts of law, appendix: execution of penalty 739
61
Someno, note 44, at 144.—On 6 October 1889 the German legal adviser
Albert Mosse was asked if he were willing to become a foreign judge of the Supreme
Court, note 59, at 489. Earlier, he had entertained the idea of applying for that
post, note 59, at 446. The initial recommendation for the use of foreign jurists as
judges at Japanese courts had been made by British legal adviser J.R. Davidson,
taking the Egyptian mixed court system as reference (H.J. Jones, Live Machines—
Hired Foreigners and Meiji Japan, 46 (1980)).
740 procedural law
62
Cf. note 6.
63
O. Rudorff, Die neueste Justizgesetzgebung Japans (The New Legislation on
Judiciary in Japan), 45 Mitteilungen etc. (note 47), at 215 et. seq. (1890).
64
‘Draft’ here et seq.: sòan, the draft that was submitted to the Legal Research
Committee.
65
Record, note 57, at 342, 655.
the courts of law, appendix: execution of penalty 741
66
Record, note 57, at 396, 661, 669.
67
See chapter 22, p. 156.
68
Record, note 57, at 444.
69
Record, note 57, at 443, 511, 514, 719.
70
LCC art. 67.
71
Record, note 57, at 443, 511.
72
Record, note 57, at 719.
73
Someno, note 44, at 156.
742 procedural law
74
Record, note 57, at 580–586.
75
Cf. Constitution art. 60.
76
See above at
77
Art. 10 of the Regulations for Enforcing the LCC.
78
Places in Hokkaidò. The prisons there were established in 1881, 1882 and
1885. M. Takikawa, Nihon gyòkeishi (History of the Japanese Penal Administration),
261 (1961).
79
Art. 14 of the Regulations for Enforcing the LCC. This rule was repealed on
27 March 1908 when the Prison Law was enacted.
80
Rudorff, note 55, at 6.
the courts of law, appendix: execution of penalty 743
81
Rudorff, note 53, at 139 et seq. The high courts were named kòsoin since
1886.
744 procedural law
82
Shihòenkakushi, note 6, at 462–464.
83
Shihòenkakushi, note 6, at 553.
84
Tokyo, Osaka, Nagoya, Hiroshima, Nagasaki, Miyagi, Sapporo.
85
Shihòenkakushi, note 6, at 543.
86
Note 85.
the courts of law, appendix: execution of penalty 745
As the first and last instance it dealt with political crimes: major
crimes against members of the Imperial family or crimes committed
by them, and with treason, art. 50. The decision was made by seven
judges. In order to settle a legal problem that was judged differently
by the divisions the president had to order all civil divisions or all
criminal divisions or all of both divisions to sit together for judge-
ment of the case in question, art. 49. Not only in that situation but
always, the conclusion in law that formed the reasoning of the
Supreme Court bound the lower courts in the action concerned,
art. 48.
For every class of courts the LCC regulated the distribution of
work and the substitution of judges. This prevented a body of judges
from being formed arbitrarily for a particular case.
To each court was attached a prosecutor’s office, arts. 18, 33, 42,
56, each office being supervised by its head. The Public Prosecutor
General (kenji sòchò) supervised all of them, art. 135.
The second part of the LCC, arts. 57–102, related to the persons
working in the courts, the judges, public prosecutors, court clerks,
bailiffs and ushers. The court clerks or secretaries were appointed
and assigned by the Minister of Justice, the chief clerks were sònin,
i.e. the appointment required the Emperor’s approval; the other
clerks were hannin.87 The bailiffs belonged to the local courts, but
their activity extended to the whole area of the district court. They
were hannin; the Minister could transfer the appointment and assign-
ment to the president of the court of appeal. Details of their duties
were regulated by an order of 24 July 1890. Candidates for court
clerk or bailiff were required to pass an examination.
The third part, art. 103–133, was about the sittings of the courts
with the principle of administration of justice in open court, the lan-
guage of the trial, the deliberation of the judges, the mode of finding
the decision, the drawing up of standing orders of the courts and
the prosecutors’ offices, the judicial year and holidays (arts. 127–130
on holidays were eliminated by law no. 71 of 6 April 1911). Moreover,
the LCC ordered that the courts, the public prosecutors’ offices
and the secretaries had to render mutual assistance in law enforcement.
The fourth part, arts. 134–143, named the persons through whom
the Minister of Justice executed the administration of the judicial
system, including the supervision of the courts and prosecutors if he
87
For sònin and hannin see chapter 2.2., p. 156.
746 procedural law
did not intervene himself. They were the presidents of the collegiate
courts and the single judge or judge in charge of a local court, as
well as the chief prosecutors in the order of the instances. The most
important rule that gave the modern characteristic to the judiciary
was ordained at the end, art. 143: the administration was not allowed
to infringe on the judicial authority of the judges when they acted
as judges. The ban on the executive’s interference in the dispensa-
tion of justice was put to the test very soon: On 11 May 1891 a
Japanese assassin wounded the Russian crown prince who, travelling
through Òtsu on his way to Kyoto to visit the Tenno. The exam-
ining judge of the Òtsu District Court, having finished the prelimi-
nary investigation, sent the case to the Supreme Court because of
its competence for political crimes. Members of the government, the
Minister of Justice among them, expressed their opinion that the
crown prince would one day be the tsar of Russia and the assassin
had to be sentenced according to the article concerning crimes against
the emperor, therefore to death. The President of the Supreme Court,
Iken Kojima, holding office only since 6 May 1891, vigorously opposed
the attempts to influence the judges and defended the independence
of the judicature. The second criminal division, presiding judge
Masaoto Tsutsumi, approvingly applied the regular articles of the
Penal Code and sentenced the accused to penal servitude for life for
attempted murder.88
Nevertheless, generally there was a risk that the Minister of Justice,
by means of his right of supervision, indirectly exerted influence on
the judicial business: he could establish branch courts (art. 31), he
appointed the examining judges of the district courts (art. 21), he
decreed principles of the allotment of business of the local, district
and high courts (arts. 11, 22, 36), and he issued standing orders for
the courts (art. 125). The independence that the judiciary gained
after World War II was not guaranteed under the LCC.
In connection with the independence of the judiciary and the dis-
pensation of justice, which should be based on the law and the con-
science of the judge only, one must take into consideration the fact
that under any system that leaves it up to the bureaucracy to appoint
the judges, or subjects it to an electoral procedure, and where a
88
Òtsu-case or Konan-case. See also chapter 10.4 ‘The Lawyer’, p. 811.
the courts of law, appendix: execution of penalty 747
89
Someno, note 44, at 164, indicates that even the President of the Supreme
Court who did not act as a judge in the Òtsu-case (see above at note 88) had
undertaken to persuade the judges of his opinion.
90
Note 55. The translator was Dr. Shinozuka who was in the service of the
Ministry of Justice from 1935 to 1964 ( Japanese foreword, and private information
from the public prosecutor Kazuo Inaba). A few passages in the commentary about
differences of the LCC from the draft give the impression that Rudorff was a bit
nit-picking, but on the whole and in a lecture in June 1890 (note 63) he gave his
views favourably.
748 procedural law
91
Laws no. 67 of 1905, no. 50 of 1906, no. 30 of 1908, no. 6 of 1913, no. 5
of 1925.
92
Laws no. 2 of 1934, no. 82 of 1937.
93
Law no. 6 of 1913.
94
Kaneko, note 6, at 54 et seq.
95
Tables in Shihòenkakushi (note 6), at 551 et seq. For the staff see loc. cit. at
543.
96
Loc. cit. (note 95) at 543.
97
Loc. cit. (note 95) at 540.
the courts of law, appendix: execution of penalty 749
98
In Japanese the juvenile courts were not called saibansho (= court) and the
magistrates, even if being judges, were shinpankan (= umpiring official).
99
When the law came into force Emperor Hirohito visited the Supreme Court,
The Tokyo Court of Appeal and the Tokyo District Court. The top officials of the
Ministry of Justice, judges and public prosecutors of high position and the presi-
dents of both bar associations, altogether 71 persons, were received in audience.
All presidents of the courts of appeal and the chief prosecutors of those courts were
present. The President of the Tokyo District Court displayed the court room for
trials by jury. Walking about the Emperor passed the bust of Boissonade, about
the merits of whom His Majesty was informed by the Justice Minister. On this day
the Emperor issued the following edict: “The dispensation of justice protects the
social order and safeguards the rights and duties of the people; thereby the welfare
of the nation is identified. Now you are assembled on the day on which the Jury
Law becomes operative. All the more serve loyally and work hard!”. Immediately,
the Minister of Justice convoked the President of the Supreme Court and the other
officials in court room no. 1 of the Supreme Court, informed them of the edict
and, respectfully reading those weighty words aloud, celebrated the transmission.
Moreover, the edict was dispatched at once to all courts in Japan by telegram. One
year later, the 1st day of October was made the ‘Judiciary Day’ to be commemo-
rated every year by holding a celebration or a lecture meeting or otherwise at the
Ministry and the courts all over the country. In connection with the Judiciary Day
the judicial sector, for the first time, organized public relations work in 1937.
Shihòenkakushi (note 6) at 422 et seq., 436, 509.
About the Jury Law see also P. Schmidt, Law of Criminal Procedure, chapter
9.3 in this volume.
750 procedural law
Constitution did not allow persons who were not trained as and
appointed judges (predominating opinion), the part of laymen was
limited to establishing the actual facts. The Law did not even per-
mit the verdict of guilty or not guilty. A jury could be involved in
trials of the district court only if the law threatened the culprit with
death or imprisonment for life, except for specific crimes, e.g. so-
called political crimes. The defendant could, prior to the preferment
of charges, refuse to be tried by a court with a jury. If the law
threatened him with imprisonment for more than three years the
defendant was allowed to ask for a trial by jury. Such applications
were made very seldom because there was no appeal, but only an
appeal on a question of law against being sentenced by a court with
a jury, and on the other hand the defendant, if sentenced, had to
reckon on high costs since the jurors were entitled to compensation
for time, travelling expenses and accommodation. According to sta-
tistics from October 1928 to April 1936 only twelve defendants
applied for a jury trial, and including these cases there were merely
443 trials with a jury within the said period. During those seven and
a half years, at 36 out of 51 district courts the number of such cases
was less than 10.
The purpose of the Jury Law, to give the people the right to exert
influence on decisions of the courts, could be spoiled by the provi-
sion that the judges were not obliged to follow the findings of the
jury. If they regarded them as not correct they could lay the case
before another jury and that as often as they thought fit. If the
judges did not agree again and again they finally had to base the
sentence on their own view of the facts. That was not provided for
by the Law but was practically unavoidable as sometime the sen-
tence had to be pronounced.100
The application of the Jury Law had almost come to an end when
it was suspended in 1943 (law no. 18). It has never returned into
force.100a
100
Y. Takikawa, Baishinhò ( Jury Law), in Shin-hògaku zenshù (Complete Collection
of New Law), vol. 27 at 6 (1938). W. Röhl, Fremde Einflüsse im modernen japani-
schen Recht (Foreign Influence on Modern Japanese Law), 12–15 (1959).
100a
A law concerning the establishment of a jury-like system was enacted in April
2004, to be enforced in 2009. JAPAN aktuel ( Journal of contemporary Japan, edited
by the Institute of Asian Affairs, Hamburg/Germany), vol. XII, p. 214, no. 61.
the courts of law, appendix: execution of penalty 751
101
In western languages the ministry is still called “Ministry of Justice”, but it is
no longer responsible for the control of the courts of justice.
the courts of law, appendix: execution of penalty 753
102
For the following see Y. Naitò, Shihò seido ( Judicial System), 100 Jurisuto ( Jurist)
16 et seq. (1956).
754 procedural law
Appendix
When the sovereign power of the Emperor had been restored the
new government (dajòkan) established seven sections (ka), early forms
of the later ministries, among them the Penal Law Administrative
Section (keihò jimuka) in February 1868 which was renamed Penal
Law Administrative Secretariat (keihò jimukyoku) on 25 February 1868
103
This paragraph departs from the main subject of the article. The historical
development of the prison system is not treated elsewhere in this book. Takikawa
(see below) p. 2 remarks that the history of enforcement of penalty as a part of
legal history causes a particularly piteous feeling, and writing about it is not a very
pleasant occupation. As the prisons are under the control of the Ministry of Justice
since 1900 and had been so in the first years of the Meiji era, a summary is pre-
sented here as a section of the judicial system. For details see Shihòenkakushi (note
6), passim. Nihon kinsei gyòkeishi kò (Notes on the History of the Enforcement of penal-
ties in Japan’s Modern Age), edited by Zaidan hòjin keimu kyòkai (Foundation ‘Society
for Prison Affairs’), vol. 2 (1943), exhaustive, infra abbreviated NKG without ref-
erence to note 103. Ishii/Chambliss, note 7, at 289–294 and 358–365 respectively.
M. Takikawa, Nihon gyòkeishi (History of the Enforcement of Penalties in Japan)
(1961). D. Bindzus and A. Ishii, Strafvollzug in Japan (Enforcement of Penalties in
Japan) (1977).—This appendix deals with imprisonment only. For the execution of
a death sentence see P. Schmidt, Die Todesstrafe in Japan (The Death Penalty in
Japan) (1996).
756 procedural law
104
Text in NKG at 1354.
105
Text in NKG at 1355.
106
Kujikata osadamegaki hyakkajò (Code of a Hundred Articles on Legal Proceedings)
of 1742.
107
See p. 783.
108
NKG at 360.
109
See p. 683.
110
NKG at 1348.
111
The period of Japanese history when the emperors governed in their own
name, i.e. from the foundation of the State until the establishment of the Shogunate
in 1192 AD.
the courts of law, appendix: execution of penalty 757
in the penal system. But the authority of the Prison Bureau was lim-
ited to the prisons within the Tokyo district, that is to say prisons
at Kodenmachò and Honjo, to the places of confinement (tame) for
sick criminals and offenders under age at Asakusa and Shinagawa,
and the house of correction (ninsoku yoseba) at Ishikawajima.112 The
other prisons in Japan were administered by local authorities. On 3
October 1871, the Prison Bureau of the Ministry of Justice (shihòshò,
successor to the Department of Criminal Affairs) was dissolved, and
the prison affairs came under the control of the municipal adminis-
tration, to save one stage in the transmission of orders. The com-
petence to enact provisions for the prisons remained with the Ministry.
In accordance with the Office Regulations for the Ministry of Justice
of 5 September 1872 a place of detention (kansò), administered by
the public prosecutor, was attached to each lawcourt for the hous-
ing of suspected criminals and any persons who had to be exam-
ined on the spur of the moment.113
Vice director of the Prison Bureau was Shigeya Ohara114 who
began to better the conditions within the prisons and was sent to
112
The localities are parts of Tokyo.—R. Ishii, (note 6), at 482. For ninsoku yoseba
see Bindzus/Ishii (note 103) at 8; Steenstrup, (note 1), at 164. The house of cor-
rection at Ishikawajima was changed into a prison (tojò ) soon afterwards. Ishikawajima
belonged to a complex of islands in the mouth of the river Sumidagawa, includ-
ing Tsukudajima and Tsukijima. Since Ishikawajima became a part of Tsukudajima
the prison was also known as Tsukudajima prison (formerly a house of correction).
Before, these prisons had been under the control of the Edo command (chindai ).
113
For the relevant article of the Office Regulations see NKG, (note 103), at 96.
In the course of time the kansò were used more or less like ordinary prisons.
114
Shigeya Ohara, 1836–1902, a samurai of the Okayama clan, as a young man
used to discuss current affairs and advocated reverence for the Emperor and expul-
sion of foreigners, the slogan of the anti-Shogunate movement. He associated with
Tesseki Fujimoto, the leader of the anti-Shogunate group ‘Tenchùgumi’, with Naosada
Noro, a loyalist from the Okayama clan, and Tarò Okamoto, also from Okayama,
who together with like-minded men in April 1863 took the wooden effigies of three
of the Ashikaga Shoguns (14th/15th century) from the Tòjiin temple in Kyoto, cut
the heads off, and pilloried them in the dry bed of the Kamo river at the spot
where it was then usual to expose the heads of criminals near a much crowded
quarter of Kyoto; to load the memory of the Ashikaga Shoguns with insults that
could not safely be offered in a direct manner to those of the reigning Tokugawa
line was fashionable among the opponents to the feudal system (B.H. Chamberlain/
W.B. Mason, Murray’s Hand-Book Japan, 320 (1913)). Ohara also had a part in
killing a secret agent of the bakufu and exposing his head outside the castle of
Okayama. For that, he was imprisoned but pardoned when the bakufu broke down.
In March 1868 he became the deputy of the Okayama clan in the kògisho, an early
Meiji legislative organ, and in August 1869 he entered the Department of Criminal
Affairs.—Ohara’s curriculum vitae represents the career of many loyalists before
758 procedural law
and after the restoration. It should be added that in 1890 he founded a Training
Institute for Prison Officials. At the time of his death he was a member of the
upper house of Parliament and decorated with the third order of merit.
115
NKG at 419–422.
116
NKG at 1113.
the courts of law, appendix: execution of penalty 759
117
NKG at 1114–1118.
118
NKG at 80.
760 procedural law
1871. Now, the management of all prison matters rested with the
local authorities. As a consequence, the Ministry of Home Affairs,
founded on 10 November 1873, which was the central organ of civil
administration and supervised the office work of the prefectures,119
gained control over the prisons with the exception of those attached
to the Ministry of Justice and the lawcourts (kansò). But in February
1876 these were also added to the business of the Home Ministry.
Lack of money hindered the implementation of the Prison Regula-
tions and, later on, the government’s energies were absorbed in
quelling the Hagi- and Seinan revolts and suppressing the Movement
for Freedom and People’s Rights ( Jiyùminken undò ).120 Although the
government was aware of the preconditions for the revision of the
unequal treaties, namely—among other things—the reform of the legal
system and with it the enforcement of penalties, there were only
a few amendments during the nine years from 1872 to 1881. After
the end of the Seinan revolt 2,700 persons were sentenced to impris-
onment and that was the impetus to build large modern central pris-
ons with six wings at Koizumi (Miyagi prefecture), modelled after a
prison in Belgium in the form of the maison-central, and at Kosuge-
chò in the Katsushika district of Tokyo city. The new structure of
these prisons (shùchikan) had been recommended by Motohiro Onoda,
a high police officer who had studied the prison systems in Europe.
Each of these prisons took in the convicts of eight prefectures sen-
tenced to at least one year and a half of imprisonment with hard
labour, the Tokyo prison also those in the custody of the police
headquarters.121 Other central prisons were erected in the eighties:
Kabato, Sorachi and Kushiro in Hokkaidò, Miike in Kyùshù. A
remarkable innovation was the rule that prisoners who were released
on probation were not allowed to leave the prison but had to spend
the time on probation in special rooms within the prison. This rule
was extended to a prisoner who had served his term if there was
no one to receive and supervise him after release and no accessory
penalty of police surveillance had been imposed or if he had no
money to travel home.122
119
Ishii/Chambliss, (note 7) at 155 and 204 respectively.
120
See chapter 1.1.
121
NKG at 487–488.
122
NKG at 583.
the courts of law, appendix: execution of penalty 761
123
NKG at 601 and appendix at 152. The dates given by Ishii/Chambliss (note
7) at 463–464 (Ishii: 1890) and 537–538 (Chambliss: 1881) might be misprints.
124
Bindzus/Ishii (note 103) at 16 state that the average number of prisoners from
1877 to 1885 was 50,000 every year.
762 procedural law
125
NKG, appendix at 78. From October 1900 the expenses were borne by the
state again, loc. cit. at 222.
126
Takikawa (note 103) at 217.
127
Bindzus/Ishii (note 103) at 16.
128
NKG, appendix following p. 1356; see also at 532 et seq. Takikawa (note
103) at 217.
the courts of law, appendix: execution of penalty 763
tive well trained police and prison officers were urgently needed, and
so a Police and Prison Academy (Keisatsu kangoku gakkò) was set up;
its activities ended in March 1904.
On 7 March 1888 the Prison Society of Great Japan (Dai-Nihon
kangoku kyòkai ) was founded. It intended to improve the situation of
the prisons, wanted to cooperate with religious and educational groups,
and edited a journal.
In that period of strong endeavours to reform the prison system
the Regulations for Prisons were, as shortly mentioned above, amended
by Imperial ordinance no. 93 of 1889. In addition, the Ministry of
Home Affairs laid down Rules for the Application of the Regulations
(Kangoku shikò saisoku). The main points were:
(i) The prisons were subdivided into six species: prisons with hard
labour (shùjikan) for convicts sentenced to penal servitude, exile
or lifelong servitude under the old law; transitory prisons (kariryùkan)
for the detention of prisoners on their way to a shùjikan; district
prisons (chihò kangoku) for confining prisoners sentenced to impris-
onment and women sentenced to penal servitude; confinement
houses (kòchikan) for accused persons; cells for temporary custody
of suspects (ryùchijò) within the police offices took in persons who
were punished with a fine and went to jail instead and persons
punished with arrest; reformatories (chòjijò ) for nonindictable
young persons as well as deaf-mute criminals.
(ii) The custom of having prisoners going around as informers and
slave-drivers, a survival from the prison administration of old,
was put an end to because those inmates were inclined to take
delight in their authority and slander other prisoners, and gave
rise to bad practices. But, in reality, general utility men and
cleaners took their place, meddled with various matters within
the prison and created all sorts of evils. Wicked customs which
had lasted for years could not be eradicated in a day.129
(iii) In order to encourage the spirit of treatment according to classes,
the new Regulations laid down rules for kind handling of pris-
oners with a commendable record, and opened the road to reha-
bilitation and repentance.
(iv) Details of grouping the prisoners according to age.
129
NKG at 601.
764 procedural law
(v) Varying detention, relating to the type of crime and the age
of the accused.
(vi) Kind treatment of unconvicted prisoners. Disciplinary punish-
ment of them was abolished and, unless the purpose of cus-
tody was endangered, they were allowed to provide for their
meals themselves etc. and to mitigate the restriction of personal
freedom as much as possible.
(vii) Custody in a reformatory on request was abolished, the per-
sons concerned were committed to the care of an Institute of
Juvenile Correction (kankain), predecessor of the Reform School
(kyògoin) under the Law of Juvenile Correction (Shònen kyògo hò)
of 5 May 1933.
(viii) Prisoners disciplinarily punished by reduction of food or a dark
cell had to be visited by a doctor. The provisions concerning
the preservation of health were expanded, the personality of
the inmate respected and his or her health paid attention to.
(ix) As the stay of helpless persons who had served their term in
prison was not in accordance with the nature of detention, the
provisions related to that were repealed.
In the first years after the Meiji restoration the Buddhist Shin-sect,
Òtani branch, started the moral reform of prisoners by exhorting
talks and lectures. Within three decades various religious groups
became active at more than 130 prisons.130 Their work was inte-
grated in the governmental programme for the education of the
people.131 At the beginning Shintoists, Buddhists and Confucianists
cooperated in teaching practical ethics in colloquy, but soon regu-
lar sermons in the prisons were thriving and the lessons passed to
the different sects. Since October 1878 Christian priests too were
allowed to lecture at the Tokyo Ishikawajima prison every Saturday.
130
NKG at 753–761.
131
In order to unify church and state the Ministry of Religious Affairs (kyòbushò)
was founded in 1872. Its business was to get control over the national sentiment
and religion. The guidelines for clerical teaching were laid down as ‘Three Fundamental
Articles on Creed’ (sanjò kyòsoku or kyòken sanjò) of 28 April 1872: 1. “Adhere to ven-
eration of the gods and love of the country”, 2. “Define the laws of nature and of
humanity”, 3. “Let the people respect the supremacy of the Emperor” [Nihon rek-
ishi daijiten (Great Dictionary of Japanese History), vol. 9, 145 (1958).] That was
influenced by Shintoism and Confucianism. Buddhism would contribute the doc-
trine of causality. The Ministry of Religious Affairs was disestablished in 1877, The
religious affairs were taken on by the Ministry of Home Affairs.
the courts of law, appendix: execution of penalty 765
132
NKG at 765.
133
NKG at 800.
134
The Buddhist Jòdò Shinshù (sect) has two main temples in Kyoto: The west-
ern and the eastern Honganji (Temple of the Original Vow of Amida Buddha). The
western temple belongs to the main branch, the eastern temple to the Òtani branch.
For the institutes see NKG at 897–898.
135
NKG at 1139 et seq.
766 procedural law
136
Quoted in NKG at 1257–1260.
137
NKG, appendix at 189.
the courts of law, appendix: execution of penalty 767
138
NKG at 1038–1041.
139
NKG, appendix at 218, 220. Shihòenkakushi (note 6) at 195, 198. M. Takikawa
(note 103) at 225. The year 1903 noted by Bindzus/Ishii (note 103) at 13 seems
to be a misprint.
140
NKG at 902 and appendix at 231.
141
NKG, appendix at 236.
142
NKG at 902–903.
768 procedural law
143
Art. 4 of the Juvenile Law.
144
Ishii/Chambliss (note 7) at 505 and 573 respectively.
145
Art. 882 Civil Code: “(1) The father or the mother in exercising parental
authority may themselves discipline their child within the necessary extent or put
the child into a disciplinary institution with the approval of the court. (2) The dura-
tion of the child’s stay in the disciplinary institution will be decided by the court
for a maximum period of six months. The duration may at any time be shortened
on request of the father or mother.”
the courts of law, appendix: execution of penalty 769
146
Under art. 1 paragraph 3 Prison Law police cells may be used as substitutes
for prison cells; at that time there were not enough prisons. For the problem aris-
ing in this respect see P. Schmidt, chapter Law of Criminal Procedure, p. 708
n. 228.
147
K. Hosokawa (note 58) at 166.
CHAPTER TEN
Wilhelm Röhl
1
Masajirò Takikawa, Nihon hòseishi kenkyù (Study of Japanese Legal History),
1941, p. 590 et seqq., also for the following text.—The earliest appearance of tem-
ple schools went far back in history, presumably to the monarchial age which ended
in the 12th century.
2
Ryòsuke Ishii (ed.), Tokugawa kinreikò (Tokugawa Interdicts), first collection, vol.
5, (1959), no. 3224. The order dealt with other matters too.
legal education 771
3
Officials came mainly from the governmental Shòheizaka gakumonjo in Edo, a
forerunner of the state universities.
4
Shihò enkakushi (A History of Justice), Tokyo 1939, compiled by the Ministry of
Justice and edited by the Hòsòkai ( Jurists’ Association), p. 17. Usually, Georges
Bousquet and Gustave Émile Boissonade de Fontarabie are named as the first
French teachers of law. But they were appointed not until March 1874 (Shihò
enkakushi, p. 25).
772 legal education and legal profession
5
Area of responsibility: personal records, staff, collection of laws, jurisprudence,
translations (shortly afterwards moved to a separate division), diary.
6
According to Kame’ichi Hosokawa, Nihon kindai hòseishi (A History of Modern
Japanese Law), 1961, 87:1878. Shihò enkakushi (note 4) dates to 12 January 1877.
7
K. Hosokawa (note 6), 86–87. M. Takikawa (note 1), 612.
8
State of 1884, M. Takikawa, loc. cit.
9
M. Takikawa, loc. cit.
10
Bousquet’s employment ended in March 1876.
legal education 773
11
‘Not a member of staff but present at service’. From December 1876 the word
was no longer used.
12
Shòsa = examination by reference.
13
The same meaning as ingai shusshi, see note 11.
14
See chapter ‘The Lawyer’.
774 legal education and legal profession
15
Shihò enkakushi (note 4) at 90: “This month 100 law students were admitted at
government expense and 109 students at private expense”. See also under 8 October
1884.
legal education 775
16
See p. 157.
17
During the training the candidate was called ‘judicial officer on probation’ (shi-
hòkan shiho). The number of candidates was fixed at 100 but later increased up to
nearly 300 (Shihò enkakushi (note 4) at 543.
18
Under laws of 1896, 1901 and 1905 the term could be shortened, each of the
776 legal education and legal profession
laws was valid for a couple of years. Law no. 10 of 12 March 1908 regulated
definitely that the practical training had to last one year and a half at the least.
19
From 1902 on a trainee could get a yearly salary of 500 ¥, increased to 1,100 ¥
in 1921 when the trainees were treated as equivalent to sònin officials.
20
Until 1905 the second examination (dai nikai shiken or kòshi) was held at the
high courts and from then on at the Ministry of Justice.
21
When the LCC came into force there was but one Imperial University (Tokyo).
Prior to World War II their number increased to nine.
22
Amended on 28 March 1929.
legal education 777
23
Under an amendment of art. 58 of 14 April 1914 this article referred to the
first examination only. It was the entrance to a career as a judge or a public pros-
ecutor.
24
Shihò enkakushi (note 4) 366, 369. The number increased according to the num-
ber of applicants.
25
The final examination (kòshi ) of the trainees remained the responsibility of the
Minister of Justice. The examination committee consisted of the vice-minister as
the chairman and several members of the ministry and the courts.
778 legal education and legal profession
26
Specific candidates are exempted from the first exam, art. 4 of the Judicial
Examination Law.
27
For details see A. Petersen, Das erste juristische Staatsexamen und dessen
aktuelle Reformdiskussion (The First Japanese Judicial State Exam and the Current
Discussion About a Reform), in Zeitschrift für Japanisches Recht ( Journal of Japanese
Law), vol. 1, 32 (1996). It is not unusual that less than five per cent of the appli-
cants are successful.
legal education 779
‘system under which, principally, the judges are appointed from per-
sons who are qualified as a lawyer and have worked in legal busi-
ness other than as a judge’. Previously, the Federation of Japanese
Bar Associations had founded a committee for the investigation of
the subject, and in July 1953 the committee had suggested (i) that
all judges should be chosen from persons who had worked as lawyers
for at least ten years, (ii) that the appointment required the Bar
Association’s or Federation’s recommendation.
Prior to these suggestions it had also been proposed that the pub-
lic prosecutors should be included, that the Legal Research and
Training Institute, which under art. 14 of the Court Law of 1947
is an establishment of the Supreme Court, should pass into the
responsibility of the Federation and that the Federation should become
the parent organization of all members of the legal profession.28
Those radical ideas which comprised the demand to supervise legal
education were not realized. But there are some rules which had a
part in unifying. The training of future judges, prosecutors and lawyers
is the same. One third of the justices of the Supreme Court are
selected from the bar. Lawyers may be appointed judges of the lower
courts when they have practised for a prescribed period.
II. The judge and the public prosecutor were a part of the state
power, civil servants incorporated in a hierarchical order, a system
of grades and status, outside the dispensation of justice bound to the
instructions of the superior. The state had to care for the compe-
tence and reliability of them with respect to the just and legal per-
formance of their professional duties. Therefore, the government
considered it to be its own responsibility to educate the prospective
judges and prosecutors with the aim of raising officials of the judi-
cial service who were conscious of their commitment.
Compared with that, the state was less engaged in the education
of advocates and lawyers. No sooner than in 1876 an examination
had to be passed before the advocate could get a license allowing
him to plead in court. The Ordinance Concerning Advocates (daigen-
nin kisoku) of 22 February 1876 was caused by evils within pro-
fessional circles, and the concern of the ministry was limited to keep-
ing away incompetent or dishonourable spokesmen from the court-
room. So, it seemed sufficient to have the examination held by
28
T. Ogiyama, (section ‘The Lawyer’, note 2) at 345 et seq.
780 legal education and legal profession
the district authorities in the area where the court in which the appli-
cant wanted to plead was situated. The examination requirements
did not go beyond the surface, and where the applicant had got his
knowledge was not significant. When in 1880 the Ordinance Con-
cerning Advocates was amended, it was prescribed that the appli-
cant had to submit a curriculum vitae enclosed with the written
application. There he had to state when and by whom he had been
taught and instructed.29
The LCC of 1890 created a new system of lawcourts. In the same
year the codes of civil and criminal procedure dealt with the role
of lawyers, now called bengoshi. Therefore, it was considered neces-
sary to enact the Lawyers Law (1893), and on 12 May 1893 the
Lawyers Examination Ordinance (bengoshi shiken kisoku) was issued by
the Ministry of Justice which had been authorized under art. 3 of
the Lawyers Law to order the details. The exam was held once a
year. The examination committee, every year constituted by the
Ministry of Justice, consisted of judges, public prosecutors and high
officials of the Ministry.30 There were no requirements as to a spe-
cial study but the applicant had to state which school(s) he had
attended and which courses completed. The exam was written (held
at the high courts or district courts) and oral (held at the Ministry
of Justice). Subjects of the exam were civil law, commercial law,
penal law, and civil and criminal procedure. In 1922 the Lawyers
Examination Ordinance was repealed, and from 1923 the candidate
for the Bar had—like the judges and public prosecutors—to take the
exam under the Ordinance Concerning the Higher Civil Service
Examination. But differently from judges and prosecutors a practi-
cal training and a second examination were not required.
Such requirements, however, were introduced by a new Lawyers
Law of 1 May 1933. Now, the candidate for a lawyer’s career had
to pass the higher civil service examination, judicial section, and then
as an articled clerk (bengoshi shiho) for one year and a half learn the
practical business of a lawyer.31 The education was concluded by the
29
For details see section ‘The Lawyer’.
30
No sooner than in 1922 lawyers too were admitted to the committee, Shihò
enkakushi (note 4) at 352. In 1913 the Tokyo Bar Association had demanded that
half of the members of the committees for the judges/prosecutors and lawyers exam-
inations should be lawyers, but that number was not reached.
31
There was no division between barrister and solicitor.
legal education 781
final examination (kòshi ).32 The practical training and the final exam-
ination were not required if the candidate was qualified as a judge
or public prosecutor or had been a full-time judge of the Administrative
Tribunal for at least three years or, also for that period, a judge-
advocate with the army or navy.
After World War II, many new laws were enacted and old ones
amended so that the previous system underwent substantial changes.
The Federation of Japan’s Lawyers’ Associations organized courses
for further vocational training from August 1950, which lasted about
seven or eight months and were very helpful. The training of young
people who want to become lawyers and get through the first legal
examination passed to the Legal Research and Training Institute,
where they are instructed together with the future judges and pub-
lic prosecutors in much the same way.
III. The notaries public (kòshònin) are not included in the legal
education as described above. Compared with their position in west-
ern countries their function in the Japanese legal system is less impor-
tant. The profession was settled no sooner than in 1886 by the
Regulations for Notaries Public (Kòshònin kisoku) of 11 August 1886,
in force from May 1889, and collateral rules. The Regulations were
succeeded by the Notary Public Law (Kòshòninhò) of 14 April 1908.
The notary public need not be a jurist but has to pass an exami-
nation and a practical training for six months; persons qualified to
be a judge, public prosecutor or lawyer do not have to fulfil these
requirements. Under the postwar amendment of the law judges of
the summary court and assistant prosecutors are excluded from this
privilege.
32
Hajime Kaneko, Saibanhò (Law of the Judicial System), 1959, p. 247; arts. 2
and 3 of the Lawyers Law of 1933, in force from 1 April 1936.
782 legal education and legal profession
1
Saibansho as the name of a district administration office was in use for but a
few months in 1868.
2
Hòsòkai ( Jurists’ Association) ed. Shihòenkakushi (A History of Justice), 1939,
p. 14 under 8th month 18th day.
3
The title of hanji continued to exist. Standing alone it meant hanji of the office
(hanganji), not of the section.
the judge 783
gon-hanganji of the 4th, the hanshiji of the 7th, and the gon-hanshiji of
the 8th class. Moreover, there were hanji shiho = young men attached
to a government office before attaining their commission.4 A hanji
shiho could be appointed head of a section without having gone
through the hierarchy.5
When the Department of Criminal Affairs (gyòbushò ) replaced the
Penal Law Office, on 15 August 1869, the posts followed the order
of the ritsu-ryò era about 1100 years ago (kan’i sòtò ).6 Six posts applied
to judicial officers: senior, middle and junior ‘judges’ (hanji ), senior,
middle and junior ‘examiners’ (tokibe).7 They ranked from the upper
fifth to the lower seventh grade; in September 1869 the ranks were
raised by one each. The first senior judge was Shigekata Itami,8 a
high official with the Imperial household.
One month after the founding of the Ministry of Justice (Shihòshò),
the old Chart of Equivalent Court Ranks was abolished, on 24
September 1871. It was replaced by a system of fifteen classes,9 and
the six posts of judges and examiners were assigned to the classes
three to eight. The senior judge was a chokunin, the junior examiner
a hannin, and the officials between them were sònin.10 A few months
later, on 6 December, that order was changed again. To each post
deputies (gon-) were introduced, and they ranked one class lower than
the principal judge or examiner, the twelve posts ranking from the
second to the thirteenth class. In December of that year three junior
judges accompanied the Vice-Minister of Justice Takayuki Sasaki on
a journey to Europe; it was the first trip of Japanese judges abroad
after the Meiji restoration, many others were to follow.
The gradation of the judges and examiners into principals, deputies,
senior, middle and junior positions was abolished on 4 May 1875.
4
Under the Law for the Constitution of the Courts (1890) shiho was the term
for a student during his training between the first and the second examination, art.
58 para 2.
5
E.g. Shihòenkakushi (note 2) p. 3 under 6th month 12th and 28th day.
6
Chart of Equivalent Court Ranks. For details see Ryòsuke Ishii, Meiji bunkashi,
2, Hòseihen (Cultural History of the Meiji Era, vol. 2; Legal System), 89; translated
by William J. Chambliss, Japanese Legislation in the Meiji Era, 1958, 117.
7
See chapter ‘The Courts of Law’, p. 722.
8
Shihòenkakushi (note 2), p. 8 under 8th month 7th day.
9
See Tòkyò Teikoku Daigaku Shiryò Hensansho (ed.), Dokushi biyò (Tokyo
Imperial University editorial office for historical materials, Essentials at Reading
History), 1942, 550 et seqq.
10
See p. 156.
784 legal education and legal profession
11
The ‘class’ of the judges and all the other government officials was called tò.
Assistant judges stood outside the general class system, their class or grade was
called kyù.
12
The prefectural courts were abolished and the district courts established on 13
September 1876.
13
Cf. chapter ‘The Public Prosecutor’.
14
Notwithstanding their grade the presidents or directors of a court had prece-
dence inside their court (Shihòenkakushi ) (note 2), p. 44 under 31 October 1877.
15
Instructions of 7 December 1883.
16
See chapter ‘The Courts of Law’.
17
Shihòenkakushi (note 2), p. 52 under 22 April 1880.
the judge 785
The judges were paid according to rank and class. The pay var-
ied over the years; in the late eighties it was 5,000 to 3,000 ¥ yearly
for chokunin and 2,800 to 300 ¥ for sònin. The public prosecutors, as
a rule, were of one rank and class lower than the corresponding
judges.18
With respect to disciplinary action the regulations concerning the
civil service applied to the judges too. Under the disciplinary direc-
tions (Kanri chòbatsu rei oyobi shobun kokoroe) of 14 April 1876 the Minister
of Justice was authorized to punish a judge by reprimand, depriva-
tion of salary, or dismissal, the last one only after having reported
to the Emperor. By 1886 regulations governing the organization of
the courts19 ruled that a judge could not be pensioned off or pun-
ished disciplinarily unless the case had been investigated in a crim-
inal or disciplinary procedure.20
Moreover, these regulations determined the posts and their names
and rank order anew. As to the judges, there were judges (hanji ) and
assistant judges (hanjishiho) with the peace courts (chiansaibansho), a
president, judges and assistant judges with the courts of original juris-
diction (shishinsaibansho). The court of appeal consisted of a president
and judges; these were called hyòjòkan, and this term applied to the
judges of the Supreme Court too.21
Art. 57 para 2 of the Constitution of 11 February 1889 said that
the constitution of the courts would be ordained by law. That law
was the Law for the Constitution of the Courts (Saibansho kòseihò) of
10 February 1890, in force from 1 November 1890 (below abbre-
viated LCC). Neither the Constitution nor the LCC included a clause
like that in art. 76 para 3 of the new Constitution of 1947: “All
18
Otto Rudorff, Die Rechtspflege in Japan in der gegenwärtigen Periode Meiji
(The Japanese Legal System in the Present Meiji Period), in: Mitteilungen der
Deutschen Gesellschaft für Natur- und Völkerkunde Ostasiens [OAG] (Reports by
the German Association for East Asian Natural History and Ethnology), vol. 4
(1888) pp. 423, 435.
19
Saibansho kansei of 4 May 1886.
20
O. Rudorff, loc. cit. (note 18), at 434.
21
Hyòjò means ‘discussion and decision’. The place of discussion and decision,
hyòjòsho, was the highest law court in the Edo era. Since the peace courts and the
courts of original jurisdiction decided by a single judge, the term hyòjòkan was quite
proper for the judge of a collegiate court like the court of appeal and the Supreme
Court. The same went for the judges of the Court of Administrative Litigation (gyò-
seisaibansho) which decided by at least five judges, Law Relating to Administrative
Litigation (Gyòseisaiban hò ) of June 1890.
786 legal education and legal profession
22
‘Retirement’ meant leaving office (taishoku). The status ‘judge’ (hanji ) remained
since it had, by appointment, been bestowed for life.
the judge 787
23
From 1893 to 1896 President of the Supreme Court.
24
Shihòenkakushi (note 2) p. 476. The same went for public prosecutors too.
25
The position of the public prosecutor, formerly included in the LCC, was reg-
ulated by a separate law.
26
See p. 746 et seq.
788 legal education and legal profession
27
The President (chief judge) is designated by the Cabinet and appointed by the
Emperor and also subject to the review.
28
Security for life may be regarded as encouraging a judge to become lazy or
causing his ignorance of the social situation and its changes (Hajime Kaneko,
Saibanhò (Law of Judicature), 1959, p. 173, but that seems unlikely nowadays as the
judges are exposed to public criticism to a greater extent than in days of old.
the public prosecutor 789
1
See above chapter ‘The Courts of Law’.
2
Ryòsuke Ishii, Meiji bunkashi, 2, Hòseihen (Cultural History of the Meiji Era, vol. 2:
Legal System), 1954, 229; translated by William J. Chambliss, Japanese Legislation
in the Meiji Era, 1958, 292. Chambliss takes ‘procurator’ for ‘prosecutor’.
790 legal education and legal profession
3
The duties of the judicial police, i.e. investigation and arrest, had first been
executed by the Penal Law Office (keihòkan), the Department of Criminal Affairs
(gyòbushò) and the Censorate (danjòdai ) within their area of responsibility, or by the
police forces of the domains, cf. chapter ‘The Courts of Law’. When, on 24 August
1871, the Censorate was dissolved and the Ministry of Justice established, the Office
Regulations of 5 September 1872 assigned the business of judicial policing to the
prosecutor. For the first time, a distinction was made between administrative and
judicial police. In regions where local officers were temporarily entrusted with judi-
cial police business, depending on the circumstances of the crime, prosecutors of
the Ministry were dispatched to guide the local officer (15 January 1875).
the public prosecutor 791
after the group to which the prosecutor belonged. The rank system
of that time comprised fifteen ranks, the highest being the first, the
lowest the fifteenth. The ranks were divided into three groups: the
holders of ranks one to three were chokunin, they were appointed by
the Emperor. The officials of ranks four to seven were sònin, like-
wise appointed by the Emperor but upon recommendation of the
responsible minister, and the ranks from eight down (hannin) were
appointed by authority of the minister or the head of another major
government office. Inside the ministry the status of the officials fol-
lowed these categories; within one category the order of appoint-
ment was decisive.4 The new titles were Chief Public Prosecutor
(kenjichò), Public Prosecutor (kenji ), Assistant Prosecutor (kenjiho). The
title kenjichò was renamed chokunin kenji on 27 December 1879. But
kenjichò lived on as the denomination of the position of head prose-
cutor with a lawcourt. Kenji was also used as the term referring to
a person who served as a prosecutor regardless of rank.5
In the course of equipping the courts with permanent public pros-
ecutors the Prosecutor’s Office of the Ministry of Justice was dis-
solved in May 1880; its business was transferred to the bureau of
criminal affairs, and when up to 1880 public prosecutors had been
installed in many areas they alone became responsible for the judi-
cial police activities which hitherto had been delegated to regional
officials. But in November 1881, with the exception of Tokyo pre-
fecture, the regional police inspectors were ordered to act as tem-
porary assistant prosecutors (rinji kenjiho).
At the end of 1883 the Ministry of Justice ruled that the presi-
dents of the courts of appeal and the courts of the first instance, as
well as the head prosecutors with these courts, had to assemble once
a year in the Ministry for one week at the most, the presidents on
1 April and the prosecutors on 1 October. The purpose was to
exchange experience and views, moreover to be informed on the
politics of the Ministry.
On 4 May 1886 the posts within the courts and prosecutors’ offices
were prescribed generally. As to the prosecutors there were probationary
4
But since it was difficult to regulate the order with officials of other ministries
or departments special seats were allocated to judges and prosecutors at state cer-
emonies.
5
E.g. Ki Watanabe, the secretary general of the Ministry of Justice, was appointed
‘chokunin kenji on 28–2–1880; then the ‘kenji ’ Watanabe was moved to the Supreme
Court on 9–4–1880 and made ‘kenjichò ’ there on 24–10–1881.
792 legal education and legal profession
prosecutors (kenji shiho) with the courts of peace (chian saibansho), pros-
ecutors (kenji) and probationary prosecutors with the courts of the first
instance (shishin saibansho), chief prosecutors (kenjichò) and prosecutors
with the courts of appeal (kòsoin) and the Supreme Court (taishin’in).
When, on 1 November 1890, the Law for the Constitution of the
Courts (Saibansho kòseihò ) and the Enforcement Ordinance came into
force, the period of tests and unsteadiness ended. The Law regu-
lated the function and position of the public prosecutor.
A public prosecutors’ office was attached to every court.6 The
chiefs of the offices were called: Public Prosecutor General (kenji sòchò )
with the Supreme Court, Chief Public Prosecutor (kenjichò ) with the
courts of appeal, Head Public Prosecutor (kenjisei ) with the district
courts. If with a local court more than one public prosecutor were
attached one of them was Senior Public Prosecutor ( jòseki kenji ): The
collective name of the public prosecutors was and is ‘prosecuting
official’ (kensatsukan).
The prosecutor acted independently of the court. In criminal cases
he had the authority to institute charges and to take the steps nec-
essary for their prosecution, to further the proper application of the
law and to see that the sentence of the court was duly enforced. In
civil cases, he had the right, if he deemed it necessary, to demand
information about them, and was allowed to express his opinion. As
far as he was legally responsible to act as a representative of the
public interest it was his duty to supervise the judicial and admin-
istrative matters belonging to or concerning the courts, but he was
not permitted to interfere in the business of the judges or handle
any of their business, art. 81 of the Law for the Constitution of the
Courts (hereafter abbreviated LCC).
The status of the prosecutors was partly the same as that of the
judges, but they had to obey the orders of their superiors. They
were appointed by the Emperor or on his order. Accordingly, they
were chokunin or sònin (see above) and subdivided into several ranks
or grades within these categories. The details of the system were
changed from time to time. Initially there were two grades of chokunin
and six grades of sònin. Their annual salary was graded accordingly,
6
The whole of the public prosecutors was regarded as one body as in France
and Germany. This principle had been recognized already in 1885, see K. Hosokawa,
Nihon kindai hòseishi ( Japanese Modern Legal History), 1961, p. 102.
the public prosecutor 793
and subdivided into five brackets for the chokunin (from 5,000 ¥ down
to 3,000 ¥ ) and seventeen brackets for the sònin (from 2,800 ¥ down
to 400 ¥ ). This had been regulated by Imperial Order no. 158 of
2 August 1890, which also fixed the number of personnel at 481
public prosecutors and 15 supernumerary prosecutors.7 In the following
years the number fluctuated considerably, in most cases due to read-
justment of the administration (falling) or increase of courts and
branch courts as well as new laws or duties (rising).8 Shortly before
the outbreak of World War II there were 626 posts of public pros-
ecutors with the district and local courts only and 686 in total.9
A public prosecutor could not be dismissed unless he agreed or
was sentenced by a court of law or disciplined by a disciplinary
court, art. 80 LCC. But this law did not forbid his suspension or
transfer even at a lower pay. Like the judges the prosecuting officials
were entitled to a pension when they retired, arts. 79, 77 LCC.
Since art. 84 LCC ruled that the judicial police had to follow the
orders of the public prosecutors, and that the Ministry of Justice or
the prosecutors’ offices and the Ministry of the Interior or the local
authorities jointly should decide which members of the police force
were to act as judicial police, the prosecutors’ division of the Justice
Ministry laid down details about the business of the judicial police
and ruled that concerning the expenses, the number of officials and
the control of the position of the police officials, the officers of both
sides were obliged to hold a consultation beforehand (directive of 30
October 1897).
The influence of European law had not been limited to legisla-
tion; on the occasion of study travels to Europe and the USA the
judges and prosecutors gained knowledge of the conditions of life
and work with the judges abroad. They were under the impression
that the circumstances there were better than in Japan, especially
7
A supernumerary was a person who had been appointed public prosecutor but,
because of the lack of a vacancy, could not be installed in a post. The Minister of
Justice employed him either with the ministry or a local or district prosecutors’
office, and he could authorize him to deputize for a prosecutor or temporarily fill
a vacancy, arts. 62–64 LCC. About the system of appointment to an office (ninkan)
and assignment to a post (hoshoku) see chapter ‘The Judge’.
8
Especially when in the second half of the twenties the prosecution of offences
involving dangerous thoughts started and was intensified.
9
Hòsòkai ( Jurists’ Association) ed. Shihòenkakushi (A History of Justice), 1939,
p. 543. They had to deal with more than 408,000 incoming cases of investigation
and presumably many unfinished cases of former years.
794 legal education and legal profession
the pay. But an early attempt to get their own situation improved
was not successful.
In 1900 a group of judges and prosecutors had been sent to Europe
and the USA. Back in Japan they learned that in January 1901 a Bill
was introduced in Parliament in which the increase of the pay for
judges and prosecutors was proposed. Under the leadership of three
prosecutors of the said group, namely the Head Public Prosecutor with
the Tokyo District Court, T. Nagamori, ditto with the Yokohama
District Court, K. Kòsaka, and the public prosecutor (simultaneously
adviser and judge of the Court of Administrative Litigation) K. Nakakòji,
judges, prosecutors and court secretaries in Tokyo and environs stood
up for an urgently needed increase of pay. They appealed to colleagues
for support and to members of Parliament for approval for the Bill.
But the diet rejected the Bill in March and in the wake of that deci-
sion several judicial officials handed in their resignation. Nagamori
and Nakakòji were dismissed at their request and Kòsaka was trans-
ferred as a prosecutor to the prosecutors’ office with the Osaka Court
of Appeal.10
Rather disturbing occurrences were in store for the prosecutors as
well as for the judges and administration officials. When Japan
declared war against China on 1 August 1894 a prize court was
established at Sasebo and two prosecutors were transferred to that
court.11 The war ended on 21 April 1895, and the prize court was
abolished on 28 September of the same year. Prize courts were set
up anew when the Japanese-Russian war broke out on 10 February
1904. Again two prosecutors were transferred there. Worse was that
all prosecutors as well as judges and higher officials had to subscribe
to government bonds. Lower officials (hannin) and probationary judi-
cial officers who had an annual salary of at least 500 ¥ were obliged
to save up to ten percent of it in the post office; the burden of this
group was open to deliberation in the individual case. In this way
they all had to contribute to the cost of the war. A few days later
the officials of the Ministry were ordered to save three percent of
their monthly pay in the post office. The war was concluded by the
Treaty of Portsmouth of 5 September 1905, promulgated on 16
October 1905. The treaty stated, among other matters, that Korea
10
Shihòenkakushi, note 9, at 202.
11
Other than a prosecutor a judge could be transferred only on special condi-
tions, arts. 73, 74, 75 LCC, but in all probability it would have been unthinkable
that he refused to consent.
the public prosecutor 795
12
Wording of the treaty in Nihon shiryò shùsei (Compilation of Japanese Historical
Materials), ed. Heibonsha, 1956, p. 541. The Tòkanfu as the central controlling
authority was established in Seoul, and in several ports resident bureaus (rijichò) were
opened. The responsibility of a resident was similar to that of a consul, and under
the law no. 56 of 25 June 1906 the resident bureaus were empowered to act as
courts of law.
796 legal education and legal profession
13
Unrest among the workers had happened sporadically since the first years of
the Meiji era and organized movements had appeared every now and then since
the eighties. Strong efforts of S. Katayama, a leader of the working classes, and
others to promote the labour union movement in the last years of the 19th cen-
tury were blocked by the government and the legislature: Peace Police Law (Chian
keisatsu hò) of 10 March 1900.—The first Social Democratic Party was founded on
18 May 1901, registered with the police according to art. 1 of the Peace Police
Law and at once prohibited. Afterwards, comparable foundations too were sup-
pressed immediately.
14
Amendment to the Law for the Election of members of the House of
Representatives (Shùgiin giin senkyo hò). Under previous laws the right to vote had
depended on the amount of direct national tax paid by the male citizen of 25 years
and more of age. The amount had been reduced from time to time. In 1890 it
had been at least 15 ¥—then only 1.1 per cent of the population could go to the
polls, in 1920 it was 3 ¥—5.49 per cent could vote. When the law of 1925 did
away with the requirement of taxpaying the percentage rose to 19.44. M. Hasegawa,
Shòwa kenpòshi (History of the Postwar Constitution), 1961, p. 26. Women were not
entitled to vote.
15
Under the Regulations Governing the Organization of the Privy Council
(Sùmitsuin kansei oyobi jimu kitei ) of 1888 in the version of that time the Privy Council,
art. 56 of the Constitution, would give advice to the Emperor on draft Bills relat-
ing to the Constitution. Since the Election Law affected the Constitution (art. 35),
and the laws needed the approval of the Emperor (art. 6), the Privy Council had
a decisive influence.
16
As early as November 1923 an Imperial message concerning the arousal of
the national spirit (Kokumin seishin sakkò ni kansuru chokusho) had been issued. The mes-
sage was aimed at socialist and communist movements. Members of the Japanese
Communist Party had been indicted in June 1923 for the first time.
the public prosecutor 797
17
Shihò enkakushi (note 9) at 551.
18
Shihò enkakushi (note 9) at 551, 552.
19
Originally the military police, founded in 1881. This force gradually extended
its activity to administrative and judicial police duties and was also operating in the
territories annexed or controlled by the Japanese.
20
Moreover, public prosecutors became members of many conferences, commit-
tees and research groups concerning other matters having an impact on perform-
ing their duties in practice.
21
The actual control of Japan over the ‘free and independent’, in reality: pup-
pet, State Manchukuo, founded on 1 March 1932, gave rise to resistance move-
ments. In Shanghai intense hostility to Japan had developed because of Japan’s
power politics in northern China and deepened owing to the Shanghai incident of
1932: after an assault on Japanese men there had been fights between Chinese and
reinforced Japanese troops and the Japanese had occupied a part of Shanghai. After
the outbreak of the Japanese-Chinese war in 1937 and once parts of China had
been occupied by Japanese troops the investigation into anti-Japanese activities was
extended to the newly controlled areas.
798 legal education and legal profession
to the drafts which were sanctioned by the GHQ and the Privy
Council22 in March. The diet passed the Public Prosecutors’ Office
Bill on 16 April 1947.23 The Law came into force at the same time
as the Constitution and the Court Organization Law. The separa-
tion of the Public Prosecutors’ Offices from the courts required a
special law for the organization of the offices, their staff and busi-
ness. The offices were no longer an appendage of the courts but a
particular institution on the level of the courts: Supreme P(ublic)
P(rosecutors’) O(ffice) (Saikò kensatsuchò, High PPO (Kòtò kensatsuchò),
District PPO (Chihò kensatsuchò)24 and Local PPO (Ku kensatsuchò). The
chiefs of the offices are called Public Prosecutor General (kenjisòchò)
and Assistant Prosecutor General ( jichò kenji ) of the supreme office,
Superintendent Public Prosecutor (kenjichò ) of the high offices, District
PP (kenjisei ) and Head PP ( jòseki kenji ) of the local offices if two or
more public prosecutors are working there. The common member
of an office is simply called Public Prosecutor (kenji ). A second type
of prosecutors are the Assistant Prosecutors ( fukukenji ); they may func-
tion on the local level only. The official collective name of all pub-
lic prosecutors is kensatsukan. Generally, they all are under the guidance
and supervision of the Minister of Justice, but his orders regarding
the handling of a single case may be given to the Public Prosecutor
General only. In principle, the prosecutors have the benefit of guar-
antee of their status. The age limit is fixed at 65 for the Public
Prosecutor General and 63 for all other prosecutors, art. 22 of the
Law for the Public Prosecutors’ Office.
Two committees were instituted:
(i) Prosecutors’ Screening Committee (Kensatsukan tekikaku shinsakai ),
art. 23, composed of members of the diet, public prosecutors,
judges, lawyers and scientists, eleven persons in all; six of them
coming from the diet. The committee screens all prosecutors
every three years to weed out the incompetent. The screening
was established in lieu of an election of the prosecutors as sug-
gested by a legal officer of the occupation forces.25
22
The Privy Council performed its functions until the new Constitution became
operative on 3 May 1947.
23
In the course of the discussions the drafts had been subject to some amend-
ments.
24
Level of the District- and Family Courts.
25
A. Taylor von Mehren, Law in Japan—The Legal Order in a Changing
Society, (1963), p. 135.
the public prosecutor 799
26
A. Taylor von Mehren, loc. cit.
800 legal education and legal profession
1
This word is used here in the headline as a collective name for persons who
give legal advice to clients on legal matters and/or represent them in court, com-
prising attorneys, advocates, solicitors, barristers, counsel, councillors. As there were
three Japanese terms for legal advisers after 1868 these types should be translated
differently—just in order to distinguish: daigen/nin/ = advocate, bengoshi = lawyer
(both solicitor and barrister), bengonin = position of the defence counsel in a crim-
inal case.
2
A valuable source of information about the history of the Japanese Bar is Nihon
bengoshi enkakushi (History of the Japanese Lawyers), 1959, edited by the Federation
of Japanese Lawyers’ Associations (Nihon bengoshi rengòkai ), Secretary General Torao
Ogiyama. Besides this, the Shihò enkakushi (A History of Justice), 1939, compiled by
the Ministry of Justice and edited by the Hòsòkai ( Jurists’ Association) has been con-
sulted. Reference should be made to T. Hattori/R. Rabinowitz, The Legal
Profession in Japan. Its Historical Development and Present State, in: A.T. von
Mehren, Law in Japan—The Legal Order in a Changing Society, 1963, 111 et
seq. J.O. Haley, Authority Without Power—Law and Japanese Paradox, 1991, 100
et seq.
3
Such service was done by the head of the house or village or a person from
the five family neighbourhood.
4
The appearance of sham agents was due to the fact that the people shied away
from legal proceedings because there were many procedural rules or the party was
afraid of being present in court. Therefore, there were persons willing, for pay-
ment, to appear in court instead of the party, pretending to be a relative or to
have other personal connections with them. When people living in the country were
involved in a lawsuit or crime and had been summoned to appear in an Edo court
they used to stay at an inn, the lodgers of which were solely or mostly litigants or
witnesses from out of town (kujiyado), and the landlord of the inn developed into a
legal adviser and sham agent.
the lawyer 801
II. When Shinpei Etò became Minister of Justice the Office Regu-
lations for the Ministry of Justice of 5 September 18725 introduced
legal agents to be installed in every district of the country: certifiers
(shòshonin),6 writers (daishonin),7 and advocates (daigennin).8 Under art.
43 of the Office Regulations the latter had, as representatives of per-
sons who were unable to make an allegation in court, to submit the
facts of the case and avoid wrong statements therein. The engage-
ment of an advocate depended on the free will of the party.
The district authorities had to care for the availability of such
agents, several of whom had some knowledge and experience in
juridical business—but that was not a precondition. They were enti-
tled to a fee from their client.
While the Office Regulations dealt with the representation in court
by those officially authorized agents, the Ordinance Concerning
Agents, (dainin kisoku) of 18 June 1873 was about other representa-
tives. A person could appoint a proxy generally for all his business
(sòridainin) or for special affairs (buridainin). The commission could
include the representation in court. That was in line with the fact
that the authorized legal agents did not have the monopoly of rep-
resentation in court.
Pleading and writing for another might be done by one and the
same person and the only precondition of the post of district legal
adviser was that he was not blind, deaf or idle and that he had
come of age (21 years). His status and outfit was not higher or bet-
ter than that of the party. He was seated on the same level as the
party and addressed by his name only. The officials of the court
5
See chapter ‘The Courts of Law’.
6
They witnessed contracts for sale or lease of plots or fields or houses etc. as
well as gifts of possessions inter vivos.
7
They wrote any document for another, especially in judicial or official matters,
mostly claims.
8
Daigen/nin/ = /person/pleading for another.
802 legal education and legal profession
and the authorities looked down on the agents and called many of
them ‘sanbyaku daigen’ which literally means ‘300 mon advocate’, i.e.
an advocate who works for a fee of 300 mon, mon being the coin of
the lowest value (penny), a cheap advocate of inferior quality or
slashed fees, a pettifogger. Apparently, the manners of the advocates
in court were not always decent. It was thought necessary to insert
in the Regulations for Courtroom Order (saibansho torishimari kisoku)
of 20 May 1874 articles concerning the behaviour of advocates.
Whenever an advocate was reprimanded by the judge because of
lack of respect he was no longer allowed to represent his client in
the pending lawsuit. If he swore at the judge he was banned from
appearing in court in his capacity of advocate for up to three months.
As a consequence of the opening of representation in court the
activity of advocates began to develop into a profession. But there
was no prescribed or officially organized legal education of advo-
cates. In April 1874 a former high official of the Ministry of Justice,
Nakamichi Shimamoto,9 established an Institute for Legal Studies
(Hòritsu kenkyùjo) which may be regarded as a predecessor of the pre-
sent law office. Therein he undertook judicial research, began teach-
ing practical business to writers and advocates and propagated personal
integrity, extension of the rights of the people and the security of
the welfare of the strong and the weak equally. In this spirit he
founded legal offices in Osaka and Tokyo and named them
Hokushùsha,10 where he educated future advocates. Nearly half the
candidates who passed the first advocates’ exam under the Ordinance
Concerning Advocates of 1876 had been instructed at the Hokushùsha.
Since the activities of the advocates were almost unrestricted there
grew foul deeds: many advocates instigated lawsuits, bought up rights,
tried to delay court proceedings, had no regard to manners and dig-
nity, undertook advising for a low fee, e.g. 300 mon11 or less than
the price of two litres of unpolished rice.
The Ministry of Justice issued the Ordinance Concerning Advocates
(Daigennin kisoku) on 22 February 1876 with the intention of gaining
9
Ogiyama (note 2) calls him Tadamichi Shimamoto, everywhere else his first
name is written Nakamichi, e.g. A History of Justice (note 2) at 19, 23; Daijinmei
jiten (Great Dictionary of Persons’ Names), vol. 3 at 309 (1953); The Japan Biographical
Encyclopedia & Who’s Who (1958) at 1397.
10
Literally ‘House of the North Continent’. That refers to the northern part of
the Buddhist mythical mountain where Bishamon, one of the gods of luck, resides.
11
See above.
the lawyer 803
12
Art. 3 of the Rules Governing the Procedure under the Ordinance Concerning
Advocates of 22 February 1876.—From 1879 persons who had completed a course
of study at Tokyo University were excused from the exam.
13
The Justice Minister’s edict of introduction. But if an advocate was not avail-
able and the party itself was, because of illness or accident, unable to appear in
court a near relative (father, son, brother or uncle, nephew) might represent it. If
there was no near relative a suitable representative might appear producing a let-
ter of attorney written out by the headman of the ward or village.
14
E.g. former convicts (at least one year of hard labour), bankrupts, officials,
art. 3.
15
Art. 14, a code of honour. Under art. 11 the advocate might (of course) set
out the rules and regulations to the judge but not argue the right or wrong of them
nor the original purport of the legislation.
804 legal education and legal profession
From 1876 to 1879 the ordinance and the procedural rules were
amended fourteen times. Worth mentioning is a ministerial order of
11 December 1877 which introduced ‘advocates attached to the
Ministry of Justice’ ( fuzoku daigennin). They represented the ministry
in any court. Principally, they got a monthly salary but occasionally
could be engaged by private persons or represented poor people
gratis. They had their office within the ministry and were subject to
the Ordinance Concerning Advocates.
Gradually, the advocates enjoyed a better reputation and began
to play an important role in society, especially when in 1877 Tòru
Hoshi16 returned from England where he was the first Japanese to
become a barrister. He was attached to the Ministry of Justice at a
monthly salary of 100 ¥ and had many private clients. He and two
other attached advocates17 were renowned for their professionalism
and highly esteemed. The rise of the advocates’ prestige was due
also to the special education at the university. But the disrespect of
the courts for them remained as before.
On 13 May 1880 the /Amended/ Ordinance Concerning Advocates
(/Kaisei/daigennin kisoku) was enacted. The ministry had realized that
there were weak points as to the control over the advocates and the
examination held by the district authorities—the consequence of this
was that, depending on the district, the exams were of different stan-
dard. The amendment ruled
– that the control was executed by the public prosecutors,
– that the examination questions were drawn up by the ministry
and sent to the public prosecutors who had to hold the exam
accordingly; prescribed subjects of the exam were civil law, penal
law, laws of procedure, laws concerning judicature,
– that an advocates’ association had to be founded in each circuit
which was obliged to control the keeping of the rules of conduct;
16
1850–1901. Member of the Liberal Party, 1890 member of the House of
Representatives, 1892 President of it, 1896 ambassador to the USA, 1900 Com-
munications Minister, chairman of the Tokyo Municipal Assembly. Made many
enemies due to his authoritative manner. Murdered on 21 June 1901.
17
Tanetarò Megata, 1843–1926. Study at Harvard University. Official in sev-
eral ministries. Financial management during the wars with China and Russia.
Member of the House of Peers and of the Privy Council. One of the founders of
Senshù College.—Nagatane Sòma, 1850–1924. Study at Columbia University. Advocate,
then judge for a short time. Founder of Senshù College. President of the Yokohama
Specie Bank.
the lawyer 805
18
For the full text of the 41 articles see Ogiyama (ed.), note 2, at 32–36.
806 legal education and legal profession
III. When, in the first years of the seventies the Japanese jurists
gained a deeper insight into foreign law, some of them proposed the
introduction of a defence counsel in criminal court cases. At that
time the standard of the advocates was regarded as rather low and
therefore the idea could not yet be realized.
In 1875 a trial was held in a murder case. In this instance the
court appointed an ‘official for the defence’ (bengokan). The defen-
dant was not the ‘client’ of the official since it was not he who had
engaged him. The official for the defence had to plead about the
facts only, he was not allowed to give his opinion on points of law.
From 1876 an ordinary advocate could be engaged as counsel of
the defendant, first by foreigners only, then, in the same year, by
Japanese defendants too. But for the time being it was at the dis-
cretion of the Minister of Justice whether the application for coun-
sel was granted or refused. From 1877 all applications were granted,
and yet defence by counsel required an application and was limited
to facts.
The Code of Criminal Instruction (Chizaihò) of 17 July, enforced
on 1 January 1882, was the first law under which the defence coun-
sel was recognized and his presence at the trial declared necessary
otherwise the sentence imposed on the defendant would not be
valid.19
The defence counsel was selected by the defendant from the reg-
istered advocates. With the consent of the court a person who was
not an advocate could be selected, and if the defendant in case of
felony did not name a counsel the court appointed an ‘official coun-
sel’ (kansen bengonin).
In the course of the liberal-democratic movement and the activi-
ties of the Liberal Party ( Jiyùtò) in the early eighties the counsel
became busy in handling cases of ‘dangerous thought’, i.e. offences
motivated by political beliefs. The authorities prosecuted persons who
spread liberal ideas and demanded rights of the people and a demo-
cratic order. Advocates acted as counsel for the defence and began
to stand up for such reforms themselves. Prominent advocates joined
19
Not all of the courts had advocates at hand and therefore the Council of State
decreed that for the time being the judgements of a court where advocates were
not available would be valid, Ryòsuke Ishii, Meiji bunkashi, hòseihen (Cultural History
of the Meiji Era, [vol. 2] Legal System), 1954, 444; translated by W.J. Chambliss,
Japanese Legislation in the Meiji Era, 1958, 520.
the lawyer 807
IV. The Law for the Constitution of the Courts (Saibansho kòsei hò)
of 1890 coined a new term for the members of the profession: lawyer
(bengoshi),20 up to now the denomination of a jurist who has been
officially licensed to represent a party or defendant in court or before
authorities and give professional legal advice to clients. As, in 1890,
there were no lawyers the Ministry of Justice decreed on 18 October
1890 that provisionally the advocates (daigennin) should act as lawyers
in court. Rinshò Mitsukuri, then Vice-Minister of Justice, who was
well versed in western, especially French, law had drafted a lawyers’
law and sent it to the diet on 25 November 1890.21 The draft con-
sisted of 48 articles, some of which should be summarized here.
– Precondition for doing business as a lawyer was the registration
with a district court or a high court or the Supreme Court.22 A
fee was to be paid for the registration: Supreme Court 500 ¥,
high court 300 ¥, district court 100 ¥. A lawyer could be regis-
tered with a high court after five years of work in a district court,
with the Supreme Court after five years of work in a high court.
– Having been registered the lawyer was allowed to practise within
the circuit of the court of registration and the lower courts there.
– Requirements for qualification: lawyers’ examination, practical train-
ing for eighteen months at a lawyers’ office and a court, mini-
mum age: 25, no criminal record regarding certain felonies, no
bankruptcy or insolvency, ban on other occupation for payment
except member of a legislative body, professor and other enu-
merated activities.
– Foundation of Bar Associations. The lawyer was bound to announce
that he had been registered with the relevant Bar Association and
deposit a surety of 200 ¥ in case of registration with the Supreme
Court, 150 ¥ ditto with a high court and 100 ¥ ditto with a dis-
trict court. The Bar Associations had to submit a list of members
to the public prosecutor with the Supreme Court or the high court.
20
Arts. 111, 114.
21
The first session of the diet was opened on 29 November 1890.
22
The registration included admission to the lower courts on the same circuit;
the registration with the Supreme Court was valid for all Japanese lawcourts.
808 legal education and legal profession
When the draft became known the jurists all over the country
expressed their opposition mainly to the following items: Classification
of the lawyers depending on the level of the court of registration,
local delimitation of activities, excessive fees for registration and high
sureties. In the diet the bill was in danger of being refused, there-
fore the government withdrew it on 9 January 1891. After having
made some amendments the government introduced the bill anew.
During the deliberations the diet was dissolved, and on 1 December
1892 the bill was introduced for the third time. A committee dealt
with it and deleted the clause concerning the local delimitation. The
surety was changed into the authorization of the Bar Association to
bind the members, depending on the local situation, to keep reserves
up to 300 ¥; but such a clause was not included in the law. The diet
passed the bill on 25 December 1892, the Lawyers Law (Bengoshihò) was
promulgated on 3 March 1893 and came into force on 1 May 1893.
The law consisted of five chapters: (1) qualification and profession
of the lawyer, arts. 1–6, (2) lawyers’ register, arts. 7–11, (3) rights
and duties of the lawyer, arts. 12–17, (4) Bar Associations, arts.
18–30, (5) disciplinary punishment, arts. 31–34; 34 articles and 4
additional provisions in all.
Art. 1 defined the profession: “The lawyer exercises his function,
commissioned by a party or ordered by a court, in an ordinary court
as provided by law. Under a special law he may exercise his func-
tion in a special court”. Attention should be paid to the point that
the lawyer’s function was exercised “in court” (see below). The pre-
condition of becoming a lawyer was that the applicant was a Japanese
man of full age and capacity who had passed the prescribed exam-
ination; excused from the exam were persons qualified for a judge
or a public prosecutor as well as LLDs or those who had completed
a course of law at Tokyo University or the former ministerial law
school and judicial officers on probation. Legal obstacles for becom-
ing a lawyer were conviction because of certain crimes, suspension
of civil rights, or pecuniary decline. The lawyer was not allowed to
do other business as described in the law.
Under art. 7 the lawyer could start business as soon as he had
been registered with a district court and entered the Bar Association.23
The procedure of registration was regulated by the Ordinance
23
Under art. 12 there was a qualifying period of two years before he might plead
the lawyer 809
in the Supreme Court. This did not apply to persons who had worked as a judge
or public prosecutor for at least three years. The qualifying period was generally
abolished by a law of 23 February 1900.
24
The remuneration was a fee for the representation of a litigant (shakin) or a
charge for services other than litigation (tesùryò), clearly defined in arts. 38 and 39
of the Regulations of the Niigata Bar Association (Ogiyama, note 2, at 73). While
the tesùryò was freely stipulated in the contract between the lawyer and his client,
there were upper limits of the shakin expressed as a percentage of the amount of
the claim. The percentage differed regionally. Since 1933 the remuneration of the
lawyer is called hòshù.
810 legal education and legal profession
25
See p. 222.
the lawyer 811
and damaged the fields there when heavy rainfalls led to a rise of the
water. A great number of men and villages were endangered. The
people formed a movement demanding remedy. The movement grew
rebellious, a trial for calling upon people to riot, for violation of the
Peace Police Law [Chian keisatsu hò] and resistance against officials fol-
lowed in 1902. The case was heard in several instances and revealed
the greatest social problem in the period of the growth of the Japanese
capitalism. Supporters of the cause of the victims of the poisoning were
politicians [First Shòzò Tanaka, a member of the House of Repre-
sentatives and noted fighter for justness], socialists, liberal bourgeois,
adherents of the ‘agriculture first’ principle, theologians, women, stu-
dents. The case gave rise also to discussions about strict liability under
civil law.
Connected with this trial were two other court cases. The aforemen-
tioned Shòzò Tanaka was accused of insulting officials because he had
yawned in the courtroom. More than seventy lawyers stood up for his
defence but he was found guilty in three instances. The report on this
in the ‘News’ of the Japanese Lawyers’ Society was penned in such a
way that the editor was indicted for an offence against the Press Law
and at last, in the third instance, fined 20 ¥.
In the Òtsu case (see chapter ‘The Courts of Law’), which was
famous for the attempt of politicians to influence the judicature, the
three counsels for the defence argued that the article of the Penal
Code on offences against the Tennò did not apply to offences against
a foreign head of State. Contrary to the opinion of the Public
Prosecutor General the Supreme Court followed the counsel.26
However, the lawyers reckoned that the public prosecutors did not
treat the counsel for the defence properly. The public prosecutors
were inclined not to inform the counsel, although he had been
selected and announced to them, of the date of the trial, explaining
that the investigation had not yet reached the state in which defence
was necessary; then they went to court and achieved an early judge-
ment so that defence was not possible. The Tokyo Bar Association
succeeded in persuading the public prosecutors to discontinue this
practice.
26
For the judgement of 21 May 1891 and the pleadings see Ogiyama (note 2)
at 79–85. A peculiarity of Japanese judgements should be pointed out: regardless
of the fact that the abovementioned legal question which article was to be applied
was the crucial subject and prosecutor and counsel had discussed it profoundly the
court, in the judgement, said nothing about the evaluation and the reason why it
based the sentence on the article ruling attempted murder of a common person.
812 legal education and legal profession
When Emperor Meiji died in 1912 and a historic era ended, the
Bar appraised the situation of the lawyers and queried the duties of
the judges and public prosecutors. The subjects were professional
responsibility, treatment of the accused, true and just arguments,
accord between law and morality, and the like. The query was meant
to call attention to the future way of action.
The Taishò era (1912–1926) was a period of political and social
unrest in which the lawyers intensified their professional and public
engagement. They became active in the ‘Constitutional Movement’
(kensei yògo undò, abbr. goken undò ) and took part in founding the ‘Circle
of Constitutional Activists’ (Kensei sakushin kai ), initiated by Tokyo
journalists and others on 13 December 1912.27 In line with the polit-
ical ideas of Yukio Ozaki of the ‘Society of Political Friends’ (Seiyùkai )
and Tsuyoshi Inukai of the ‘Nationalist Party’ (Kokumintò) they opposed
the policy of the military faction and the bureaucracy to reform the
army and navy.
After World War I lawyers from Japan, China, the Philippines
and Thailand set up an ‘International Bar Association’ (Kokusai ben-
goshi kyòkai). American lawyers from Shanghai too attended the first
general assembly at Beijing in 1921.
One year later a quarrel sprang up among the members of the
Tokyo Bar Association. For years the chair had been monopolized
by old stagers. A number of the lawyers disliked that and stood up
for a reform. After vehement discussions Masahiko Inui of the reform
group was elected president in 1922. He had been a lawyer for only
seven years. The old stagers regarded his election with distaste and
founded the ‘Tokyo Lawyers Society’ (Tokyo bengoshi kyòkai), a pri-
vate group. Inui was elected president of the Tokyo Bar Association
again in 1932, 1936 and 1941.
Violent disputes arose when a bill relating to an amendment of
the Lawyers Law was introduced in February 1923. The reason was
the increasing number of members of some Bar Associations and
thereby a greater difficulty in executing the duties of the Association.
Consequently, it was proposed to divide a Bar Association when it
became too large. The lawyers feared that the influence of the Bar
Associations on the members as well as in the case of representing
27
Ogiyama (note 2) 107. Seemingly, the circle was small and had no obvious
influence.
the lawyer 813
28
1867–1944. Study of law. 1890–1893 official of the Ministry of Agriculture
and Commerce. Lawyer from 1893. 1927–1929 Minister of Justice. Then he was
a Privy Councillor (1931–1939), Vice-President and, from 1940, President of the
Privy Council. As a lawyer he was, in 1923, an old stager and presumably most
of the founders of the new Bar Association were of the same kind.
29
Actually, the Tokyo Bar Association was the ‘first’. The name of the new Bar
Association as the first may result from the fact that this was the first of a con-
ceivable series of parallel associations under the law of 17 April 1923.
30
The cause was a judgement against the gendarmerie captain Masahiko Amakasu
who, making use of the confusion after the earthquake of 1923, had murdered two
socialists/anarchists. Amakasu was sentenced to ten years in prison and released
after three years. The court-martial (martial law had been declared in the areas
affected by the earthquake) said that Amakasu had feared that, in the confusion,
the hostility of the socialists to the State could be worsened to rebellious actions
instigated by the anarchists he had killed. Therefore he had intended, off his own
bat so to say, to avert evil actions from the State.
814 legal education and legal profession
31
1889–1953. At first, he wanted to become a philosopher and was influenced
by the Christian theologian Kanzò Uchimura, then studied law and after having
worked as a public prosecutor became a lawyer in Tokyo from 1903 to 1932. He
was a famous counsel for the defence in many cases of great political significance
and one of the founders of the Group of Liberal Jurists. He was excluded from
the Bar in 1932 and again admitted in 1945.
the lawyer 815
a left wing and founded the ‘Lawyers’ Group for the Relief of the
Victims32 of the Liberation Campaign’ (Kaihò undò giseisha kyùen ben-
goshidan) on 1 June 1931; they organized the defence in trials against
communists. This activity was regarded as a violation of the pur-
pose of the Law for Maintenance of the Public Peace, and a lot of
lawyers were arrested, Fuse33 among them. The Group merging with
the ‘Lawyers’ Group for a Nationwide Pan-Agricultural Convention’
(Zennò zenkoku kaigi bengoshidan) established the ‘Japanese Lawyers’
Group for the Cause of Labourers and Peasants’ (Nihon rònò ben-
goshidan) in January 1933.
32
Sc. the labourers and peasants. ‘Victims’ = the persecuted fighters for liberation.
33
In 1939 he was sentenced to two years of penal servitude, but released after
one year.
816 legal education and legal profession
became infirm. The lawyer could plead in any court but had to
enter one Bar Association. The Bar Association was a body corpo-
rate under the supervision of the Minister of Justice. Rules con-
cerning the fee of the lawyer were left to the regulations of the Bar
Association. The most remarkable point of the new law was the dele-
tion of the clause that the lawyer must be a man. Thereupon, female
lawyers appeared in rapidly increasing numbers.
VI. When, towards the end of the twenties, general irritation with
the democratic approach to the leadership of the country and dis-
content with the unsteady state of affairs developed, it was chiefly
the military that accused the party system of causing trouble. The
murder of Prime Minister Tsuyoshi Inukai by young officers and
cadets of the navy and army on 15 May 1932 meant the end of
the party cabinets, and from that time military chiefs determined
the policy even though they did not at once assume direct respon-
sibility. Japanese troops in Manchuria (the Kwantung army) had
affected the policy already, in September 1931, when they had
engaged in battle with Chinese troops after the explosion of a bomb
on the rails of the South Manchurian Railway near Mukden. This
event began a constant state of war or warlike actions between Japan
and China which lasted until 1945.
The foreign policies (Manchurian incident, withdrawal from the
League of Nations, international isolation, escalation of the war with
China, striving for a new order of East Asia, getting involved in
World War II) and the domestic affairs (end of the party cabinets,
persecution of opposition and suspected leftists, Prof. Minobe’s ‘The
emperor-as-an-organ theory’, coup d’état of army officers on 26
February 1936, the road to the Pacific War) induced the lawyers’
societies and Bar Associations to render opinions. The views differed
according to the political standpoint; the most rightist society was
the ultra-chauvinistic ‘National Bar’. Others pronounced in favour
of democracy and liberalism, but they had to act with caution since,
in times of intensified persecution of opponents, democratic and lib-
eral ideas were regarded as being in danger of becoming the hotbed
of communist ideas.34 Finally, in a belligerent, patriotic spirit and
being forced to maintain brotherhood in the state of war the Japanese
34
Ministry of Justice declaration of 1938, Ogiyama (note 2) at 157.
818 legal education and legal profession
35
This programme was introduced by the second cabinet of Prime Minister
Fujimaro Konoe on 1 August 1940 as part of the project to establish a new orga-
nization of East Asia under the leadership of Japan. The ‘New Structure’ was meant
to realize a totalitarian State and followed the Nazi system of ‘one nation one
party’. The New Structure was supposed to include the whole administration, jus-
tice, economy and the institutions of public life.
36
Ogiyama (note 2) 183–189. Some of the subjects were understood as merely
technical. E.g. one Bar Association answered, to the question of how to simplify
the protocol of the hearing, that the secretary should use a fountain pen and west-
ern paper (instead of writing brush and Indian ink on Japanese paper).
the lawyer 819
37
Argument: The conciliation provided for by law in cases of lease, tenancy,
commercial matters, and debts had become independent from the arrangement in
the course of litigation. Conciliation should be integrated into the due process of
law, and the proper means were a compromise made before a court or the judge-
ment of an arbitration tribunal. Evidently the lawyers hoped to participate in the
settlement to a greater extent if the mediation were performed in litigation, par-
ticularly as there was a large number of mediation cases (Ogiyama, note 2, at
260–261). But the wish of the lawyers was not fulfilled; on the contrary, new laws
regulating mediation were enacted with regard to personal matters (1939), damage
due to mining (1939), and after World War II the Civil Mediation Law (Minji chòtei
hò) set up general rules.
38
The lawyers argued that there were 60,000 such instances a year and that in
view of the mass those consultations should be channelled judicially.
39
Klaus Schlichtmann; Shidehara Kijùrò: Staatsmann und Pazifist, eine politi-
sche Biographie (Kijùrò Shidehara, Statesman and Pacifist, A Political Biography),
1997, p. 427, gives 24 March 1938 as the date of enforcement which differs from
the text in Compendium of Laws (Roppò zensho), Iwanami shoten 1942.
820 legal education and legal profession
VII. The Meiji Constitution of 1889 did not mention the lawyer.
The postwar Constitution of 3 November 1946, in force from 3 May
1947, regulates in art. 77 that matters relating to lawyers (bengoshi )41
are subject to the rule-making power of the Supreme Court, and
arts. 34 and 37 speak of the defence counsel42 (bengonin).
Following the new Constitution many laws had to be altered. First,
the ‘Temporary Preparatory Committee for a Conference on the
Reform of the Judicial System’ (Rinji shihòseido kaisei kyògi junbikai ) was
set up in the spring of 1946. Only a small number of lawyers were
members of the committee, which discussed mainly the laws con-
cerning the courts and the public prosecutors. The committee did
not present a draft of a new Lawyers Law. The practising lawyers
stimulated further endeavours, and the Ministry of Justice established
the ‘Preparatory Committee for the Reform of the Lawyers Law
40
As late as 1944 the ‘Patriotic Lawyers’ Association of Great Japan’ was founded.
Organizing many events and making use of mass media it propagated jingoism.
41
‘Attorneys’ in American.
42
Usually but not necessarily a lawyer, art. 31 of the Code of Criminal Procedure.
the lawyer 821
43
Hòsò ichigen. See chapter ‘Legal Education’.
44
Though by different committees, the Court Organization Law, the Law for
the Prosecutor’s Office and the Lawyers Law were prepared concurrently and the
results of the discussions were mutually known. So, one committee could take the
findings of the other into account. The Court Organization Law was expected to
introduce ‘exceptionally appointed judges’ (art. 45) = persons who had not gone
through the ordinary education system but had dealt with legal matters for many
years and had knowledge and experience might be appointed judge of a summary
court as well as assistant prosecutor (arts. 3 and 16 para 2 of the Public Prosecutor’s
Office Law). The Bar was of the opinion that they should not be qualified as
lawyers.
822 legal education and legal profession
45
Among other things the GHQ asked for the admission of foreign lawyers.
Japan yielded to this and art. 7 of the new law ruled that, with the consent of the
Supreme Court, a foreign lawyer who was fairly proficient in Japanese law could
practise like a Japanese lawyer; if he lacked adequate knowledge of Japanese law
he might deal with matters involving foreigners or concerning foreign law. When
the occupation had ended art. 7 was repealed in 1955. As to the further develop-
ment of the regulations concerning foreign lawyers see Thoralf Bölicke, Die
Liberalisierung der Zulassung für ausländische Rechtsanwälte in Japan (Admission
of Foreign Lawyers in Japan Liberalized), in Zeitschrift für Japanisches Recht ( Journal
of Japanese Law), vol. 5/1998, 92–113.
46
Under art. 47 of the Lawyers Law the lawyers and the Bar Associations are
members ipso facto. The old law of 1933 had ruled (art. 52) that the Bar Associations,
in order to attend to joint matters, could set up a federation with the permission
of the Minister of Justice. The only members were the Bar Associations. That fed-
eration was founded on 31 October 1939 and named Japanese Federation of Bar
Associations (Nihon bengoshikai rengòkai ); it was dissolved when the Lawyers Law of
1949 came into force.
notes on the staff of the ministry of justice 823
1
Ryòsuke Ishii, Meiji bunkashi, 2, Hòseihen (Cultural History of the Meiji Era, vol. 2:
Legal System), 1954, p. 60, translated by William J. Chambliss, Japanese Legislation
in the Meiji Era, 1958, p. 714.
2
K. Tokinoya (ed.), Nihon kindaishi jiten (Dictionary of Japan’s Modern History),
1958, pp. 673–674.
3
Their main duty was the discussion on all affairs of state in the Great Council
of State (dajòkan), i.e. the three offices as a whole. Their function with the branches
of the administration was an additional duty.
4
Both had become senior councillors shortly after the issuance of the Imperial
Restoration Order.
5
The sections (ka, operating from 10 February to 25 February 1868), the fol-
lowing eight secretariats (kyoku, operating from 25 February to 11 June 1868) and
the offices (kan, 11 June 1868–15 August 1869) may be looked upon as early fore-
runners of the ministries (shò). Nihon kindaishi jiten (note 2) pp. 674–677.
824 legal education and legal profession
6
Ishii/Chambliss (note 1) at 86 and 111 respectively.
7
Literally ‘Having knowledge of the affairs of the office’. From ancient times,
the notion was that control and supervision were based on the knowledge of facts
and events. The rule of the emperor was called shiroshimesu = to know; R. Ishii,
Nihon hòseishi gaisetsu (Outline of Japanese Legal History), 1960, p. 28. The word
chiji (knowing the matters or affairs) became the term or title relating to a person
in a leading position. Today, chiji is the highest official of a prefecture.
8
See chapter ‘The Courts of Law’.
9
Sanetomi Sanjò who was also the Prime Minister (dajòdaijin) of the dajòkan type
III, 1871–1885.
notes on the staff of the ministry of justice 825
at the top and several First Advisers of State (dainagon) and State
Councillors (sangi ) as the highest officials. According to the ancient
order the Office of Shintò Worship ( jingikan) stood above the Great
Council of State with respect to the rank but not to the political
business. The former offices were renamed departments or ministries
(shò ), the chiefs of which had the title kyò (minister). In the Penal
Law Office, now called Department of Criminal Affairs (gyòbushò ),
there were several posts for officials of different ranks who had judi-
cial responsibility.
The reader should keep in mind that the judicial officers were not
judges in the modern sense but administration officers who handled
legal matters of the department and, in addition, had a limited juris-
diction in criminal cases.10
The third type of the dajòkan-system was instituted in September
1871. The Great Council of State divided into three chambers:
Central Chamber (seiin), Left Chamber (sa’in) and Right Chamber
(u’in). The administrative departments (shò ) which we now call min-
istries belonged to the Right Chamber. The Ministry of Justice (shi-
hòshò) was founded on 24 August 1871. When Shinpei Etò had been
appointed Minister of Justice and courts of law organized the judges
and public prosecutors belonged, as before, to the personnel of the
Ministry11 but from now on had their offices at the courts.
Worth mentioning are three particular posts which had neither
predecessors nor successors.
(i) Councillor (sanjikan). Councillors were introduced in each ministry
by regulations governing the organization of the ministries of 26
February 1886. Their duty was, on instruction of the minister, to
reflect on administrative matters and present ideas and proposals as
to that. There were full-time (sennin) councillors and persons who
did that as a secondary occupation.12 The councillors were sònin =
appointed by the Emperor upon recommendation of the minister;
10
See chapter ‘The Courts of Law’.
11
This state of affairs lasted until 1947.
12
For example, Binzò Kumano, after having studied at the Justice Ministry School
and in France, entered the Ministry of Justice and became councillor in 1886 and
a member of the Civil Code Compilation Committee (Minpò sòan hensan i’in). In
1890 he was appointed judge of the Supreme Court. But on 7 October 1892 and
12 April 1893 he, in his position as councillor to the Ministry of Justice, was men-
tioned among the members of two other committees (Dai jinmei jiten/Large Dictionary
of Persons’ Names/, 1953, p. 413. Shihò enkakushi/A History of Justice/, ed. by the
Hòsòkai/Jurists’ Association/, 1939, pp. 143, 149).
826 legal education and legal profession
13
Officials of sònin rank who arrange the work of other officials and employees
in an office (here: ministry) so that the business functions well.
14
Shihò enkakushi, note 12, pp. 539–541.
15
Shihò enkakushi (note 12), pp. 570, 571.—Kuratomi was a jurist and served in
various very high positions.
notes on the staff of the ministry of justice 827
16
Shihò enkakushi (note 12), pp. 568–569.
17
His deputy was W. Seki who served the same term. Shihò enkakushi (note 12),
pp. 564, 568.
INDEX
bankrupt 106, 200, 240, 343, 663, 740–741, 751–755, 788, 788
675–677, 803 n. 14 n. 27, 797, 814, 817–818 n. 35,
bankruptcy 193, 356, 361, 377, 822, 826
393–394, 524–525, 663–664, 664 cabinet system 20, 49 n. 43, 99
n. 18, 675, 675 n. 35, 676–678, n. 15, 157
740, 743, 807 care for the poor 580, 591
Bankruptcy Code 379 cartels 364, 523, 526, 526 nn. 4–5,
Bankruptcy Regulations for Peers, 526, 527, 534, 540, 542–543
Ex-samurai and Commoners 664 case study 557
Bar Association 728 n. 42, 749 case-method 28
n. 99, 753, 779, 780 n. 30, 807, Censorate 136 n. 126, 714–716, 790
809, 809 n. 24, 810–812, 813, 813 n. 3
n. 28–29; 815–817, 818, 818 n. 36, Central Charity Association 582
819, 820–821, 822, 822 n. 46, change in occupation policy 563
Basic Law and Regulations for a Diet Charter Oath of Five Articles 23
39 n. 19, 31, 33, 44, 166, 230, 573,
Begriffsjurisprudenz 28 662, 756
benji 120 Charter on the Form of Government
Berne Convention 782, 824, see also seitaisho
410, 459, 462, 485, 503, 505, 505 Checking Section 773
n. 23, 508, 510–511, 515 n. 82, Chichibu incident 2
516 China 3, 8–9, 11, 14, 14 n. 15
big central prisons 760 chindai 99, 120, 135, 757 n. 112
bill of a poor law 580 Chinese law 23, 169, 612, 684
Board of Censors 683, 714 chinshòfu 99, 120, 120 nn. 80, 82;
Boissonade, Emile Gustave 24, 135
24 n. 5, 25–26, 168 n. 5, 175–177, chokurei 20, 585, 591, 767
181, 185, 187, 211, 211 n. 11, chòtei 561, 666 n. 24, 667 n. 27,
213–214, 216, 264–265, 279 668–669, 819 n. 37
n. 119, 312, 483 n. 4, 610, 610 Circuit Court 720, 731, 733–734
n. 12, 611, 612, 612 nn. 23–24; circuit judges 731
612 nn. 28–30; 613, 613 nn. 31, Civil Code 6, 25, 27–28, 38,
33–35; 614, 626, 686, 689, 689 128–130, 154, 166–168, 172–176,
n. 78, 690 n. 82, 735, 737, 741, 176 n. 20, 177–178, 180–184, 184
749 n. 99, 772–773 n. 32, 185–187, 187 n. 34, 188,
borstal 767 188 n. 37, 189–199, 199 n. 57,
branch courts 723, 732 nn. 48–49; 200–201, 205–207, 209, 211–214,
736, 746, 793 216–217, 219, 219 n. 13, 15;
branch divisions 743–744 220–227, 232–238, 240–250,
branch offices 15, 122, 666, 736, 252–256, 259, 261–262, 263, 263
743, 790 nn. 6–8, 11; 264, 264 nn. 14, 18,
British system 409 21; 265 nn. 25–26; 266 n. 29,
Buddhism 152, 153 n. 191, 601, 601 267, 272, 279, 279 n. 119, 282, 282
n. 51, 764 n. 131 n. 161, 283, 283 n. 166, 284,
286–288, 291–292, 293, 293 n. 261,
Cabinet 7–8, 11, 18 n. 6, 20, 21, 21 294 n. 264, 295–296, 297, 297 n. 272,
n. 14, 22, 38 n. 23, 40–41, 46, 48, 298, 299, 299 n. 285, 299
49, 49 n. 43, 51, 75–76, 83–84, nn. 288–289; 299 n. 290–291,
86–90, 98, 99 n. 15, 113–115, 300, 300 nn. 294–295; 301, 301
130, 132, 139 nn. 134–5; 156, 157, n. 298–313, 302, 303, 311 n. 46,
157 n. 207, 158, 158 n. 209, 159, 315 n. 81, 319 n. 122, 322–323,
165, 175 n. 19, 176, 351, 359, 43, 323 n. 168, 324, 324 n. 170, 324
549, 589, 589 n. 34, 594, 677 n. 171–178, 325–327, 328, 328
n. 39, 705, 725, 725 n. 28, 735, nn. 180–206; 353, 353 n. 93,
index 831
354, 359, 361, 438, 484, 489, 494, 395, 396 n. 287, 397, 397 n. 293,
542, 551, 558, 567, 670, 675–678, 397 n. 295, 397 n. 297, 401,
768, 768 n. 45, 825, 825 n. 12 675, 675 n. 36, 676–677
Civil Execution Law 671 n. 30, 680 common soldiers 163 n. 217, 581
Civil Mediation Law 667 n. 27, 669 Communication official 826–827
n. 29, 819 n. 37 complaint 38 n. 22, 123 n. 92, 124
Civil Procedure 25, 25 n. 13, n. 97, 165, 353–354, 360, 439,
26, 178, 183, 258, 270, 319, 319 448, 454, 464, 530 n. 15, 587,
n. 122, 424, 431, 494, 636, 639, 647–648, 669, 673, 675, 679–681,
641, 655–656, 657 nn. 4, 6; 657 691, 694, 697, 710, 716, 723–744,
n. 6, 658, 661–662, 664, 666 789
n. 24, 667–669, 670, 670 n. 30, Composition Law 677
671, 674–675, 677–680, 728, 772, Compulsory Cartels 526
775, 777, 800, 818 Compulsory Execution 670 n. 30,
Civil Procedure Code 353, 638–640 674, 680
clan government 48, 771 conciliation 168 n. 3, 229 n. 2,
classes of assistant judges 784 231, 244, 258, 258 n. 40, 300, 547,
classes of judges 784 548, 560–561, 561 n. 27, 666, 732
classified actions 657 n. 48, 728–729, 753, 819 n. 37
Code of Civil Procedure confession 25, 81, 681, 685, 685
25–26, 178, 183, 258, 270, 319, nn. 31, 33, 685 n. 33, 694,
319 n. 22, 494, 641, 655–657, 664, 696–697, 707, 708 n. 231, 709
666–671, 674–675, 677–680 constabulary 134, 140, 149
Code of Criminal Instruction Constitution of 1889/Meiji Constitution
24, 144, 273, 688, 688 n. 68, 2–4, 6 n. 10, 9, 12, 15,
689, 690, 690 n. 83, 691, 691 26–27, 29, et seqq., 31 n. 6, 38,
nn. 89, 91, 93, 95, 97; 692, 692 44–47, 45 n. 38, 50, 51–55, 57, 60
nn. 102, 105, 110; 693, 693 nn. (text), 111–113, 113 n. 65, 124
112–113, 116–121; 694, 694 nn. n. 93, 128, 131, 145, 150, 158,
122–24; 695–98, 695–698, 179, 207, 208 n. 5, 209, 353, 549,
701, 733–737, 761, 806 594, 633, 636, 643–644, 654, 694
Code of Criminal Procedure 22 n. 130, 702, 706, 739, 785, 796
n. 19, 26, 139 n. 138, n. 15, 820
150, 626, 683 n. 13, 689, 689 Constitution of 1947 10, 21–22,
n. 75, 695, 695 nn. 129, 132; 696, 57–59, 74 (text), 122–123, 124, 130,
696 nn. 133–137; 697, 697 nn. 131, 145, 147, 154, 160, 203, 209,
138–144; 698, 698 nn. 145, 147; 210 n. 10, 295–298, 323, 556, 560,
699–700, 700 n. 163–167, 701 nn. 562–563, 570, 598–599, 601,
168–185; 702, 702 nn. 186–191; 603–606, 622, 638, 649, 654, 679,
705–707, 707 nn. 221–223, 225; 705–710, 751 et seqq. 785, 787,
708, 708 nn. 227, 229, 232; 709, 797, 820, 822
709 nn. 233–238, 242–243; 710, Constitution of the Courts 26, 690
710 n. 245, 709–710, 820 n. 42 constitutional law 27
Colonization Bureau 11, 125 Constitutional Nationalist Party
Commercial Code 26, 146 n. 163, 583, 589
178, 181, 183, 185–186, 193, 327 Constitutional Party 7 n. 11
n. 201, 330, 331 n. 4, 342 n. 40, Constitutional Progressive Party 807
346–347, 350, 350 n. 77, 351, 351 consular jurisdiction 169, 336, 503,
n. 85, 352–354, 355, 355 n. 99, 609–610, 626, 712, 772
357, 357 n. 106, 358, 358 n. 111, continental European law 23, 111
359, 360, 360 n. 120, 362, 369, contravention 141–144, 146, 446, 690
373 n. 175, 375 nn. 183–184; 380, confinement 663 n. 17, 681 n. 3,
380 n. 203, 380 n. 204, 394 757, 763, 769
n. 274, 380 n. 207, 392 n. 264, copper mine at Ashio 810
832 index
copyright 410, 422, 455, 456 n. 10, 308, 547, 607, 607 n. 3, 609, 609
459, 459, 461 n. 24, 462 n. 27, n. 10, 610, 610 n. 12, 611–614,
462, 481 n. 47, 496, 496 n. 64, 617, 617 n. 66, 618–619, 620, 620
500, 500 n. 2, 501, 502, 502 n. 17, nn. 75–76; 620 nn. 78–79; 622, 682
503–507, 508, 508 n. 38, 509, 509 n. 5, 683, 683 n. 20, 684, 702
n. 41, 509 n. 44, 510–512, 515–519 n. 192, 704, 766, 773
Copyright Act 461–462, 495 n. 64, criminal offenses 608
500, 502, 502 n. 17, 503, 504, 504 Criminal Procedure 22 n. 19, 25, 25
n. 22, 504 n. 23, 505 n. 27, n. 10, 26, 139, 144, 150, 622,
506–511, 514–522 626, 681, 681 n. 3, 682, 683 n. 16,
copyright law 410, 422, 462, 684, 685 n. 30, 689–690, 695, 695
500, 504, 508, 508 n. 38, 509 n. 129, 696–698, 688 n. 70, 699,
n. 44, 510, 511, 519–522 689 nn. 75, 78; 700, 702, 702
copyright registration 500, 502 n. 192, 703–707, 708, 708 n. 228,
Copyright Statute 502, 504, 709–710, 715, 733 n. 51,
509 n. 41 747, 772, 774, 777, 780, 789
Corporate Reorganization Law 677 criminal proceedings 714
councillors 30, 30 n. 3, 35, Criminal Regulations
38–40, 44, 48, 48 n. 42, 69, 25, 162, 273, 277, 609, 683, 683
82–85, 87, 93, 96, 98, 99 n. 15, n. 20, 684–685, 765
112, 116, 118, 120, 134 n. 118, Current Utility Model System 448
682, 713, 723, 735 n. 54, 822, customary 16, 123, 168, 174, 184,
823, 823 n. 4, 824–825 187–188, 195–196, 199, 201,
counsel 13, 47, 81, 351, 392, 216, 239, 241, 244, 248–250,
408, 636, 681, 693, 697, 699–702, 251, 251 n. 30 254, 256, 259,
706, 708, 708 n. 229, 708 nn. 262, 310, 353, 360, 519, 693, 753
228–229; 728, 800–801, 806, 811,
811 n. 26, 814 n. 31, 820, 825 daigennin 733, 779, 801, 804, 807,
counsel course for reformatory work 809
582 daimyò 17, 30, 33–34, 34 n. 9, 99
court clerks 745 n. 18, 150, 151 n. 185, 167–168,
Court Extraordinary 662, 720, 724 215, 229, 682, 711
n. 27, 725, 726, 726 n. 31, dajòdaijin 19, 48, 49 n. 43, 99 n. 15,
727–728, 730 n. 44 109, 723, 824 n. 9,
Court Law 156 n. 198, dajòkan 18, 18 n. 6, 19, 19 n. 8,
679–680, 751–755, 778, 779 20, 35, 35 n. 11, 35 n. 12, 38, 48,
Court of Administrative Litigation 57 48 n. 42, 54, 97, 97 n. 9, 98, 99,
n. 64, 70, 126, 127 n. 101, 99 n. 15, 100 n. 19, 101, 109, 120,
133, 633, 785 n. 21, 794 120 n. 82, 152–153, 155, 173,
Court of Appeals 691, 694, 735 238, 574, 658–659, 664, 712, 755,
Court of Original Jurisdiction 823 n. 3, 824–825
691, 694, 735 dajòkan nisshi 35
Court Organization Law 145, 319 dajòkan system 18 n. 6, 38, 48 n. 42,
n. 22, 353, 751, 778, 787–788, 98, 152
797–798, 821 dangerous thought 793 n. 8, 795, 806
Criminal Code 144, 145, 145 n. 159, danjòdai 136, 136 n. 129,
171, 190, 270, 271–273, 275, 137, 714, 790 n. 3
277–278, 289, 289 n. 215, 308 death penalty 607–608, 612,
n. 21, 504, 558, 619, 625–626, 617–618, 623, 626, 708 n. 229,
683, 700 n. 161, 761 731, 733
criminal law 25, 37, 96 n. 3, 145, defence counsel 728, 800 n. 1,
162, 162 n. 215, 190–191, 254, 806, 818, 820
257, 270, 271, 271 n. 65, 272–273, democracy 3, 39, 51, 56, 109, 293,
275 n. 93, 277–278, 305 n. 4, 303, 328, 383, 398, 528, 554,
index 833
557, 559–560, 622, 653, 700, 148, 155, 168, 206, 337, 572,
703, 817 655–656, 686 n. 43, 711, 714–717,
democratization 295, 298, 726 n. 33, 729, 736, 771, 790 n. 3,
322–323, 332–334, 381, 383, 384, 800, 823
384 n. 221, 386, 392, 394, 554, Dòmei 503 n. 19, 522, 566
562, 702, 705 Draft Constitution of Japan 45
Department of Civil Affairs 655–657, draft of a Law for Relief to the Poor
715 578, 580
Department of Criminal Affairs 683,
715–716, 722 n. 25, 756, 757, 757 Educational Affairs Section 772
n. 114, 783, 790, 825 Egypt 689
departments 22 n. 15, 49, 97 n. 9, Eison 601
99 n. 16, 354, 413, 599–600, 655 elder statesmen 39–40, 49, 54, 139,
n. 3, 713, 715–716, 718, 730, 175
741, 748, 782, 791 n. 4, 825 Election of Members of the House of
Design Act of 1899 455–456 Representative 6, 84, 87, 89, 752,
Design Act of 1959 459 796, 796 n. 14
Design Acts 409 elementary schools 107, 151 n. 186,
design law 452–453, 461 n. 24, 770
462–463 Emergency Measures Concerning the
Design Ordinance 453–454, 456 Code of Civil Procedure 679
design protection 452–460, 461, 461 Emperor 9, 17–18, 21–23, 30, 42
n. 24, 462–463, 465 n. 28, 49 n. 43, 56, 45 n. 38,
deflation program 578 104, 111, 113–114, 118, 123–124,
Diet 3, 12, 53, 90, 267, 484, 569, 128, 130, 139, 139 n. 136, 140, 143
586, 589, 600, 699 n. 152, 158, 160–161, 162 n. 216,
Dilution of Anti-trust Policy 532 206, 381, 407, 572, 580 n. 23,
dissenting vote 752 594, 613, 628, 629 n. 5, 631–662,
district 2, 11–15, 20–21, 41–42, 100, 684, 689, 715–716, 718–719, 731,
100 n. 23, 102, 102 n. 26, 104–106, 735, 741, 745–746, 749, 752, 755,
107, 107, 107 n. 49, 111, 116, 756, 756 n. 111, 764 n. 131, 757
118–119, 120, 120 n. 85, 121, 122 n. 114, 784–785, 788 n. 27,
n. 88, 136–139, 151, 268, 571, 571 791–792, 796 n. 15, 812, 817, 824
n. 6, 575, 581, 605, 744, 746, 750, n. 7, 825–826
756–757, 760, 763, 766, 768, 780, Emperor-organ theory 56
782, 786, 793, 793 n. 7, 796, Employees’ Health Insurance Law
801, 803–804, 807–809, 813, 821 596
district court/s 111, 218, 414 n. 23, employment agencies 553, 592
435, 435 n. 46, 441, 462, 462 employment contracts 562, 567
n. 25, 462 n. 28, 477–478, 480 Employment Exchange Law 592
nn. 41–42, 44–45; 481 n. 48, 481 Employment Placement Law 553
n. 49, 484 n. 8, 489 n. 32, 490 English law 177 n. 22, 179–181, 211,
nn. 35, 38; 494 n. 60, 496–497, 774
632, 662, 640, 668, 672, 680, 697, enterprise unions 365, 560–561, 566
732, 740, 743–747, 749–750, Etò, Shinpei 24, 39, 172–174, 174
752–753, 784 n. 12, 786, 792, n. 17, 264, 632, 658, 719–720,
803, 805, 807–809 722–724, 724 n. 27, 726, 726
district office 121–122 n. 33, 727–728, 758, 789, 801, 825
division of powers 120 European law 23, 111, 612, 793
Document on the Government System examination 25 n. 13,
31, 44, 96, 120, 123 149, 157–158, 158 n. 209, 165,
see also seitaisho 186, 393, 408–409, 425–427, 427
domains 17, 19 n. 8, 33–38, 40, 54, n. 9, 433, 440, 444, 448–449,
96–99, 100, 100 n. 20, 103, 135, 453–454, 457–458, 465–469, 477,
834 index
Germany 7, 27–28, 50, 57 n. 66, health insurance system 579, 589, 600
113 n. 61, 166, 178 n. 23, hearing in court 661
180–186, hierarchy 783–784
352, 360, 373, 377–378, 380, high court 11–15, 19 n. 10, 30, 129,
383, 426, 442–444, 471, 485–486, 434, 435 n. 45, 435 n. 742, 462,
497, 503, 523, 526, 586, 620, 630, 477, 477 n. 35, 478, 484, 479,
651, 689, 737, 742, 787 490 nn. 37, 39–40; 493 nn. 56–58;
Gijisho 33, 34 n. 10 496, 496 n. 64, 497, 506 n. 28, 513
gijò 120, 682 n. 8, 713, 823 n. 68, 529 n. 9, 530 n. 11,
giseikan 35, 37, 97, 824 662–663, 680, 687, 709, 711, 726,
Gotò, Shinpei 579 729–731, 732 n. 47, 733, 733 n. 51,
Governing Reformatory Work 734, 734 n. 54, 735, 743, 743
767–768 n. 81, 744, 752–753, 807
governor (chiji ) 11–12, 14, 14 n. 12, Hinbyòin 572, 588
15, 99, 99 n. 18, 100–101, 103 Itò, Hirobumi 40, 46, 48 n. 42, 50
n. 32, 106, 108–109, 111, 114, n. 45, 112, 344, 359, 737, 787
116, 118–122, 122 n. 88, 122 Hòki 22, 150 n. 178, 497–498
n. 90, 127–128, 134, 139 n. 138, Hokkaido 11, 19–20
158, 534, 632, 722, 735 n. 54, holding company/ies 367, 370–371,
742, 756, 762, 765, 767–768, 795 371 n. 168, 372, 384, 385, 385
Great Council of State 35, 173 n. 226, 390, 390 n. 255, 400, 524,
n. 15, 174, 263, 269, 270, 270 528–529, 531, 535–538, 540
nn. 59, 62; 271, 273, 273 n. 77, Home Ministry 97–98, 108, 110
274, 275, 275 n. 93, 276, 307, 307 n. 54, 115, 137, 138, 142 n. 149,
n. 17, 308, 308 n. 28, 309, 310, 144–145, 147, 153, 156 n. 201,
310 n. 43, 311, 682, 683 760, 762
n. 20, 683 n. 21, 684, 686 homicide 277–278, 617–619, 625,
nn. 41–42, 688, 688 n. 65, 683, 698
689, 689 n. 79, 692 n. 103, 693 hòmufurei 22
n. 114, 694 n. 125, 698 n. 146, hòrei 12–13, 22, 22 n. 18, 695 n. 131,
823 n. 3, 824–825 698 n. 147, 703 n. 197
Great Court of Judicature 686, 694, hòritsu 12–21, 25 n. 11, 124, 128,
696, 709 131, 189, 195, 296 n. 268, 323
Great-Council-of-State 824 n. 166, 385 n. 229, 396 n. 288, 331
Group of Liberal Jurists 814, 814 n. 4, 397 n. 292, 397 n. 296, 491
n. 31 n. 46, 506 n. 29, 520–522, 528
guild system 342–343, 452 n. 8, 614 n. 39, 644–645, 679, 704
gunchò 102, 121 n. 200, 706 n. 215, 772, 774,
Gyòki 601 810, 816
Gyòsei shidò 539, 643, 649, 649 n. 74 Hòritsushi 3
gyòseikan 36, 97, 120 n. 82, 152, 756 Hoshi, Tòru 804–805
house of correction 757, 757 n. 112,
han 17, 17 n. 3, 99, 100, 100 768
nn. 19–20; 103, 157 n. 207,
273 n. 83, 337, 683, 711–712, Illustrated Regulations for Prisons
714–715 758–759
hanji 688 n. 61, 691 n. 99, 718, ILO 551, 553
731, 774, 776, 782, 782 n. 3, ILO Congress 551
783–785, 786, 786 n. 22, 823 ILO’s 1919 general meeting 553
Hayashi, Reisaburò 818 Imperial Edict on Relief for the
health insurance association 590, Families of Non-Commissioned
596, 600 Officers 581
Health Insurance Law 6, 589–590, Imperial Endowment Welfare
593–596, 600 Organization 582
836 index
Law on the Minimum Age of 183, 188, 191, 209, 213, 219,
Industrial Workers 6 222–224, 226, 230–232, 232 n. 9,
Law on the National Public Service 235, 245, 254–255, 257, 263, 268,
Mutual Aid Association 599–600 270, 270 n. 57, 300, 300 n. 293,
Law School 24–25, 173, 179, 267, 309 n. 35, 311, 328–329, 334, 336,
314, 359, 626, 718, 720, 723, 726, 351–352, 376, 377 n. 191, 396
731, 771–772, 774, 808 n. 287, 408–409, 423, 446, 448,
lawful administrative practice 124, 468, 471, 473, 484–485, 486 n. 17,
128 489, 489 nn. 28, 32; 490, 498, 500
law-office 802 n. 3, 527–528, 540, 548, 548 n. 8,
lawyer/s 24, 266, 339, 351, 392, 551, 553–555, 563, 567–568, 573,
407, 544, 549, 610, 616, 654, 657 580, 586, 591, 603, 606, 607, 607
n. 6, 659 nn. 8–9; 671, 700, 704, n. 1, 609–611, 613–614, 617–618,
728 n. 42, 741–742, 746 n. 88, 620, 622, 633, 640, 643–644, 646,
773, 773 n. 14, 774–778, 779, 779 650 n. 76, 652, 655, 670 n. 30,
n. 28, 780 nn. 29–30; 781, 781 680, 681 n. 3, 682, 689, 695, 704,
n. 32, 786–787, 798, 800, 800 710–711, 713 n. 7, 716, 720, 724,
nn. 1–2; 807–808, 809, 809 n. 24, 738, 740 n. 63, 754, 783 n. 6,
810–813, 814, 814 n. 31, 815–818, 789, 793, 803 n. 15, 806 n. 19,
819, 819 nn. 37–38; 820, 820 nn. 823
40, 42; 821, 821 n. 44, 822, 822 legislative organ 32, 39, 115, 686,
nn. 45–46 757 n. 114, 824
Lawyers Examination Ordinance 780 lese majesty 613, 623
Lawyers Law 777, 780, 781 n. 32, Liberal Democratic Party 606, 652
807–808, 810, 812–813, 815–816, Liberal Party 2, 157 n. 207, 735,
820–821, 821 n. 44, 822, 822 n. 46 737, 804 n. 16, 806–807
lay judges 725–726, 753–754 Livelihood Protection Law 605–606
LCC 737–738, 738 n. 55, 739, 741 local administrative units 100
n. 70, 742, 742 nn. 77, 79; 743, Local Autonomy Law 22, 107 n. 49,
745–746, 747, 747 n. 90, 748–749, 122 n. 90, 123, 154 n. 193
776, 776 n. 21, 777, 780, 785–786, local court/s 11, 13, 15, 237–238,
787 n. 25, 792–794 665, 667–668, 671–672, 674, 696,
Leased House Law 668 720–721, 721 n. 22, 722–723, 729,
Leased House Mediation Law 732, 732 n. 48, 733, 740, 743,
668–669 746–748, 776, 784, 792–793,
Leased Land Law 668 795–796
Left Chamber 19 n. 8, 38–39, 173, local government 47, 101, 111, 111
173 n. 15, 174, 719, 726, 825 n. 57, 112–113, 115 n. 73, 119,
legal action 28, 88, 125, 127–129, 122, 414, 651
131, 133, 165, 230, 232, 235, 656, local police 41, 136–137, 149, 720
657 n. 7, 659–660, 667, 668, 668 Local Public Employee Act 564
n. 28, 669, 678 local self-government 91, 149 n. 177,
legal education 24 nn. 4, 6; 25 631
n. 13, 770, 772–773, 775, 779, 781, Local Tax Regulations 102, 106, 109
802, 816, 821 n. 43 Lord Keeper of the Privy Seal 8, 49,
legal officer 771, 782, 798 49 n. 43, 54
legislation 4, 8, 11 n. 2, 20 n. 12, 24 LSL 567–569
nn. 5, 7; 25 n. 10, 31, 35–36, 38,
40, 44, 47 n. 41, 49, 53, 57 n. 66, MacArthur, Douglas 10, 57, 59, 381,
77, 96, 96 n. 4, 97, 108, 112–114, 554 n. 19, 623
114 n. 71, 115, 115 n. 76, 117, machi bugyò 18
127, 131, 132 n. 114, 147 n. 168, machi toshiyori 18
148, 148 n. 172, 161, 170, 172, Madrid Agreement 409–410, 480,
176 n. 20, 177, 180, 180 n. 26, 485, 487, 489, 491 n. 41, 498
840 index
Public Health Insurance 491, 570, n. 317, 309–310, 347, 356, 361,
579, 588–589 408, 410, 427, 427 n. 9, 432, 444,
public prosecutor/s 12, 14 n. 12, 26, 446, 449–450, 453–456, 458, 465,
88, 139, 158–159, 161, 671, 671 467, 467 n. 7, 468–474, 476, 476
n. 31, 687, 690, 708, 712, 720–721, n. 31, 477, 478, 478 n. 38, 479,
721 n. 23, 723–724, 727–728, 730 479 n. 39, 480–481, 490, 500, 502,
n. 44, 736, 745, 747 n. 90, 749, 513, 518, 521, 576, 576 n. 17, 743,
751, 753, 757, 775–776, 777, 777 803, 807, 807 n. 22, 808–810,
n. 23, 778–781, 784, 784 n. 13, 821–822
785–787, 787 nn. 24–25; 789–791, Regulation for the Organization of the
792, 792 n. 6, 793, 793 n. 7, Justice Department 687
794–796, 797, 797 n. 20, 798, Regulations Concerning Examination,
804–805, 807–809, 811–812, Probation and Training of Civil
814 n. 31, 819–821, 825 Officials 157, 775
Public Prosecutors’ Office 464, 704, Regulations for Courtroom Order 802
742, 745, 775, 789, 792, 797–798, Regulations for Criminal Courts 685
819 Regulations for Criminal Proceedings
public summons 674 685, 687
public support 572 Regulations for Prisons 758–759,
Publication Statute 500 761–763, 765–766
Regulations for the Organization of
re-appeal/s 662–663, 665, 673, Prefectural Government 109
679–680, 691, 694, 697, 720, 733, Regulations Governing Rural District
735, 744, 748, 820 Organization 116, 119
reason 25, 28, 31, 118 n. 78, 126 Regulations Governing the
n. 98, 144, 154, 168, 170, 172, Organization of Cities 114
175, 180, 184, 186, 187 n. 34, 191, Regulations Governing the
197, 202, 208, 211, 217, 219, Organization of Prefectures
239–240, 244, 247, 261, 269, 276, 115–116, 118
285–286, 300, 307, 307 n. 18, 309, Regulations Governing the
310, 318–319, 337, 342, 352, 354, Organization of the Senate 44
356, 358, 360–362, 365, 370, 372, Regulations Governing the
380, 388, 388 n. 246, 390, 393, Organization of Towns and Villages
406, 413, 425, 427, 432, 436, 438, 112, 114
447, 447 n. 13, 470, 472, 476, rei 19–20, 144–145, 157, 159,
483–486, 509 n. 44, 518, 528, 531, 162–163, 587, 595 n. 41, 736, 769,
589, 607, 609, 612, 613, 613 n. 31, 776–777, 785
614, 615, 615 n. 44, 617–619, 623, relief for soldiers 586
629–630, 647–648, 650 n. 77, Relief Fund 44, 577, 581, 585, 596
651–652, 653 n. 87, 659, 665, 673, Relief Law 574, 579–581, 591–595,
706, 722, 731, 733, 733 n. 51, 737, 595 n. 41, 599 n. 49, 604,
741, 745, 800, 811 n. 26, 812 605 n. 55, 606
recourse 184, 628, 641, 663, relief organization 579 n. 20, 585,
672–673, 695–697, 733 593
Reform of 1921 621 relief policy 574
Reform of 1941 621 Relief Regulations 574–576, 578,
reform of penal law 622 580–582, 591–592
Reformatory Law 768 Relief Work Investigation 603
reformatory school/s 767–768 Renewal of Procedure 673, 695
regional assembly 36, 103 Rengò 567
registration 103, 154–155, 173–174, renunciation of war 59, 76
191, 193, 212–213, 217–218, 223, retrial 12, 14, 428, 694, 696, 698,
253, 268, 271, 275 n. 93, 276, 698 n. 146, 706, 709, 710, 733
286–287, 290 n. 229, 294, 299, 304 Riverol, Henri de 24, 718, 771
index 845
revision 3, 5, 10, 12, 23, 25, 109, sa’in 19 n. 8, 38, 173, 263 n. 13, 264
111, 113 n. 65, 115, 115 n. 76, n. 14, 825
117, 124, 175–176, 186–188, 208, Saga no ran 39
208 n. 4, 213, 233, 261, 293, 293 saibansho 59, 135, 135 n. 122, 137
n. 255, 294–295, 297, 297 n. 272, n. 130, 144–145, 300 n. 295,
299, 303, 322, 323 n. 168, 328, 325 n. 176, 662, 679, 712 n. 6,
350 n. 77, 354, 356, 358–360, 392 717–718, 720, 729, 730 n. 44, 735,
n. 264, 396, 397, 396 n. 287, 399, 740, 743, 749 n. 98, 751–753, 778,
403, 409, 429 n. 12, 434, 440–441, 782, 782 n. 1, 784, 785, 785 n. 19,
450, 451, 473, 475, 477, 485–487, 787, 792, 802, 807
494, 501, 505, 506, 506 n. 28, 508, Saigò, Takamori 1, 724, 730
508 n. 38, 509, 510, 510 n. 49, Sakhalin 795
511, 521, 536, 559, 565, 607, 614, samurai 2, 19, 30, 33, 34 n. 9, 39, 50
622, 626, 648 n. 69, 678, 688–690, n. 45, 54, 120, 148, 151 nn. 182,
695, 698–699, 705, 709, 737–740, 185; 152, 157, 162, 162 n. 216,
760, 762 163, 189, 191, 232, 268–269,
rice riots 589, 591, 592 n. 38 271–272, 275, 277–278, 305, 305
right to livelihood 556 n. 3, 306–307, 309–310, 343, 345,
Risshisha 39 348, 348 n. 69, 349, 500, 524, 546,
Road Law, Land Expropriation Law 655, 655 n. 2, 656, 659, 664, 714,
635 718, 724 n. 27, 757 n. 114, 770,
Ròdò Kumiai Kiseikai (Society for the 823
Formation of Labour Unions) 10, San Francisco Peace Treaty of 1951/2
547 10, 489
Roesler, Hermann 26–27, 50, 50 sanbyaku daigen 802, 810, 816
n. 47, 113, 183, 185, 207–208, 209 sanyo 30, 38 n. 20, 120, 713, 782, 823
n. 7, 350 n. 77, 351, 351 nn. 83, SCAP 10, 10 n. 14, 57, 57 n. 66,
85; 352–353, 355, 355 n. 100, 356, 210, 381, 383–385, 391–394,
356 n. 103, 357, 360, 379, 631, 396–397, 528, 532, 554, 554 n. 19,
631 n. 13, 633, 633 n. 19, 555, 558–559, 565, 638, 640,
675–676, 737 646–647
Rudorff, Otto 26, 664 n. 20, 670 school 1, 24–27, 27 n. 19, 103, 107
n. 30, 731 n. 47, 737, 737 n. 55, n. 47, 129, 150, 151, 151 nn.
738, 738 nn. 57, 60; 739–740, 740 181–182; 185–187, 189; 152,
n. 63, 742 n. 80, 743, 743 n. 81, 152 n. 190, 157, 173, 177, 179,
747, 747 n. 90, 785, 785 n. 18 181–184, 186, 192, 196, 211, 233,
rule of law 22, 53, 59, 124, 124 267, 314, 338, 353 n. 93, 359, 501,
n. 93, 126, 133, 180, 394 n. 276, 550, 600, 604, 614, 626, 718, 720,
549, 637, 643, 644, 644 n. 55, 723, 726, 731, 764–765, 767, 770,
645–646, 648, 698, 712 770 n. 1, 771–772, 774, 777, 780,
rule-making power 88, 679, 751, 787, 808, 825 n. 12
797, 820 school attendance 765
Rules for the Adjudication of school section 772–773
Litigation Involving Different scribe 486 n. 17, 659, 660, 720, 733,
Prefectures 656, 800 733 n. 52
Rules for the Conduct of Court Seamen’s Employment 592
Affairs 123, 664, 731 Seamen’s Insurance Law 596
Rules for the Supervision 728 Second Tokyo Bar Association 813
Rules Governing the Appointment as sei 19–20, 364 n. 133
Judge 774 sei’in 19 n. 8, 38, 174, 658
Rules of Temporary Relief for Poor seidojimu 96 n. 4
People 577 seidojimuka 35
Rules on Participating 725 seidojimukyoku 35
Ryukyu islands 795 seidoryò 35
846 index
n. 176, 326 n. 179, 428, 428 Three New Law 43, 101 n. 24, 102,
nn. 10–11; 429, 429 n. 13, 430 106–107, 109–111
nn. 20–25, 29–32; 431 n. 34, 432, Three Offices (sanshoku) 30, 30 n. 4,
433 n. 38, 434, 435 n. 42, 446 35, 96, 152, 823, 823 n. 3
n. 9, 458, 462 n. 28, 472–474, 474 three powers of the state 96
nn. 22–23; 475, 475 nn. 24–26; tokibe 722, 722 n. 25, 783
476 nn. 31, 33; 477 n. 35, 478 Tokugawa 16–17, 33, 49 n. 43, 96,
n. 36, 479 n. 39, 480 n. 43, 481 143, 147, 148, 148 n. 170, 152,
nn. 46–47; 484, 484 n. 7, 488 156, 168, 168 n. 4, 170 n. 8, 206,
n. 25, 490, 491 n. 44, 496, 507, 228, 229, 229 n. 1, 231, 262–263,
507 n. 32, 513, 523 n. 1, 529, 531, 268–270, 274, 277–278, 288, 305,
535, 540 n. 45, 557, 563–565, 305 n. 3, 306–307, 308 n. 23, 311,
567–568, 587, 623, 626, 638, 332, 336–338, 343, 348–349,
648–649, 659, 662–663, 671, 367–368, 404, 452, 456, 483, 503,
678–680, 690, 691 n. 94, 695, 707 524, 547–548, 571–572, 607, 628,
n. 223, 709, 710, 710 n. 246, 720, 628 n. 2, 655, 681–684, 686, 690,
729–732, 733 nn. 51–52; 734–735, 711, 712 n. 5, 757, 770–771, 800
739, 739 n. 61, 740, 744–746, 747 Tokugawa, Yoshimune 571, 770
n. 89, 748, 749 n. 99, 751–754, Tokyo Advocates’ Association 805
772, 778–779, 784–785, 785 n. 21, Tokyo Bar Association 780 n. 30,
786–788, 791 n. 5, 792, 797, 803, 811–813, 813 n. 29, 815
805, 807, 809, 811, 820, 822, 825 Tokyo Court 666, 717–718, 722, 744,
Supreme Court of Justice 729, 784, 749, 782
790 Tokyo Court for the Open Markets
Supreme Military Council 54 718, 724
suspension of execution 639, 641 Tokyo Law School 772
suspension on probation 614, 619 Tokyo Lawyers Society 812
Tokyo Prefectural Court 724
Taishò Democracy 7, 56, 303 tort 260, 484, 484 n. 9, 637
Taiwan 11–12, 14–15, 41, 41 n. 26, torture 25, 81, 622, 681, 681 n. 3,
139, 163 n. 218, 332, 362–363, 682 n. 5, 684, 685, 685 nn. 31,
461, 502, 526, 585 33; 686, 686 nn. 37, 39, 690, 706–707,
715
Takahashi, Korekiyo 364, 402, 405, Toyotomi, Hideyoshi 571
408, 422, 466, 468 trade mark 313, 402, 406–407,
tasshi 17, 19, 110, 124 n. 97, 756, 409–410, 417, 445, 451, 455, 458,
765, 800 466, 467 n. 5, 468–477, 478,
Tax Practitioners Law 821 478 n. 36, 479, 479 n. 39, 480,
taxation 2, 80, 107, 130–131 481, 481 n. 49, 482, 488–490, 491,
technology transfer centres 411–414 491 n. 44, 493, 496–497, 743
technology transfer offices 413 Trade Mark Act 466–468, 469, 469
Techow, Hermann 26, 670, 670 nn. 10–11; 471–474, 476–478, 491
n. 30, 674 Trade Mark Law 410, 466, 471, 474,
Temporary Measures Law 705–706 476 n. 31, 479, 481–482, 491, 491
tennò 4–5, 10, 27, 44, 51–52, 56, n. 43
58, 158, 296, 362, 549, 682, 684, trade union 555, 557, 559–560,
811 565–566, 567, 567 n. 34, 589, 590,
Tentative Criminal Provision 683, 593
685, 713, 756 Trade Union Law 554–555, 559–563,
terakoya 151 nn. 185–186; 770 565, 567, 589–590
The Law for the Prevention of traineeship 776
Prostitution 145, 606 Treaty of Portsmouth 12, 14–15, 138
theory of free law 28 n. 133, 794
three labour law 562, 566 Trust Busting 528, 536
848 index
trustee in bankruptcy 676 von Stein, Lorenz 47, 209, 631, 631
types of prison 761, 769 n. 13, 633
ISSN 0921-5239