INTRODU CTION TO JAPANESE LAW_1 potx

INTRODU CTION TO JAPANESE LAW • ' ' ' • I Y OS IYUKI NODA tran sl at ed and edited by AN TH ONY H. ANGELO UNIVERS ITY Of TOKYO PRESS ' ' • INTRODUCTION TO JAPANESE LAW YOSIYUKI NODA Translated and edited by ANTHONY H. ANGELO UNIVERSITY OF TOKYO PRESS • This book was originally published in 1966 by Librairie Dalloz in French under the title Introduction tJU Droit Japonais, vol. XIX of the series Les Systemes de Droit Contemporains of the Institut de Droit Compare de l'Universite de Paris. English translation @ by UNIVERSITY OF TOKYO PRESS, 1976 ISBN 4- 13-036016-7 ISBN 0-86008- 160 -5 Printed in Japan All rights reserved. No part of this publication may be reproduced or tt:ansmitted in any form or by any means, electronic or mechanical, including photocopy, record- ing, or any information storage and retrieval system, without permission in writing from the publisher. Eighth printing, 1989 CONTENTS Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • IX Translator-Editor's Note . . XV INTRODUCTION AND HISTORY Chapter I INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . 5 Study of Japane se Law . . . . . . . . . . . . . . . . . . 5 The Difficulti es in the Study of Japanese Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Chapter II HISTORY OF JAPANESE LAW TO 1868 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 First Era: Early Society . . . . . . . . . . . . . . . . 20 Second Era: Regime of Rit su-ryo . . . . . . . . 22 Third Era: Dual Feudalism . . . . . . . . . . . . 26 , Fourth Era : Unitary Feudalism ~ . . . . 31 Chapter III RECEPTION OF WESTERN LAW . . . . . . 41 The Process of Reception . . . . . . . . . . . . . . . . 41 Real Significance of the Reception . . . . . . . . 58 GOVERNMENT AND THE LAW Chapter IV THE TENNO REGIME . . . . . . . . . . . . . . . . 65 Chapter V THE LEGISLATURE . . . . . . . . . . . . . . . . . . 73 Parliament . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 The Structure of Parliament . . . . . . . . . . . . . . 79 Functions of Parliament . . . . . . . . . . . . . . . . . . 83 Parliament in Practice . . . . . . . . . . . . . . . . . . . 88 Chapter VI THE EXECUTIVE . . . . . . . . . . . . . . . . . . . . . 93 The Cabinet . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 CONTENTS Administrative Organization . . . . . . . . . . . . 99 Local Administration . . . . . . . . . . . . . . . . . . 104 The Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Legal Control of Administrative Action . . 112 Chapter VII THE JUDICIARY . . . . . . . . . . . . . . . . . . . . 119 Basic Principles . . . . . . . . . . . . . . . . . . . . . . . . 119 The Courts . . . . . . . . . . . . . . . . . . . . . . . . . . 124 Court Officials . . . . . . . . . . . . . . . . . . . . . . . . 133 The Ministere Public . . . . . . . . . . . . . . . . . . 135 The Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Chapter VIII THE PROFESSION . . . . . . . . . . . . . . . . . . 139 Legal Education . . . . . . . . . . . . . . . . . . . . . . 139 Attorneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 Members of the Ministere Public . . . . . . . . 149 Judges . 151 JAPANESE AND THE LAW Chapter IX JAPAN ESE AND THE LAW . . . . . . . . . . 159 Characteristics of Japane se Mental Chapter X Attitudes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 The Rules of Giri . . . . . . . . . . . . . . . . . . . . . . 1 7 4 Influence of the Rules of Giri . . . . . . . . . . 179 The Future of Giri . . . . . . . . . . . . . . . . . . . . 183 SOURCES OF LAW LEGISLATION . . . . . . . . . . . . . . 187 Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 1. The Constitution . . . . . . . . . . . . . . . . 190 2. The Civil Code . . . . . . . . . . . . . . . . . . 197 3. The Commercial Code . . . . . . . . . . . . 202 4. The Code of Civil Procedure 204 5. The Criminal Code . . . . . . . . . . . . . . 207 6. The Criminal Procedure Code 209 Subsidiary Legislation . . . . . . . . . . . . . . . . . . 212 Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 Collections of Legislation. . . . . . . . . . . . . . . . 214 Chapter XI Chapter XII CONTENTS CUSTOM AND JORI . . . . . . . . . . . . . . . . 217 Custom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 Jori . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222 CASES AND LEGAL THEORY. . . . . . . . 225 Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 1. General . . . . . . . . . . . . . . . . . . . . . . . . 225 2. Nature of Judgments. . . . . . . . . . . . . . 230 3. Law Reports . . . . . . . . . . . . . . . . . . . . 236 Legal Theory . . . . . . . . . . . . . . . . . . . . . . . . 241 Bibliographical Notes • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 247 Index · · . · · · · · · · · · · · · · · · · 249 • PREFACE This book, translated and adapted here for English-speaking readers, was orginally published in French in 1966. For more than thirty years, I have taught almost exclusively French law at the Law Faculty of the University of Tokyo. From 1961 to 1963 I was in Paris to extend my knowledge of French law, and during my stay there I had the opportunity to give a cour se in the Faculty of Law and Economics of the University of Pari s aimed at initiating postgraduate s tudent s in the elements of Japa- nese law. Mter returning to Japan, I rewrote the lectures and added appendices and a chapt er relating to the sources of law, and together these were publi s hed in a volume entitled Introdu c- tion au droit japonais. Curiously enough, this introduction to Japa- nese law is the work of a specialist in French law. Jesu s said, • "If the blind lead the blind, both shall fall into the ditch" (Matt. 15: 14). Though I do not regard myself as entirely blind in respect to the law of my country, I am nevertheless afraid that I may be a bad guide for my readers. The merit of this book, if any, is that it has till now been the sole manual to give a general survey of Japanese law. 1 Until a better book is written by someone who is well versed in Japanese law, it is my hope that this one will realize its objective. : Several years ago, I received a letter from a foreign lawyer seeking my permission to translate the Introduction into English. He wrote in very good French, showing that he ·possessed a rich 1 My colleague,Junichi Murakami, specialist in German law, has recently pub- lished an introduction to Japanese law in German , Einfiihrung in die Grundlagen d es japanischm Rechts (Darmstadt: Wissenschaftliche Bu chgesellschaft, 1974). It is based on l~tur . es he delivered at the Law Faculty of the University of Freiburg i. Br. in 1972 and 1S thus of nearly the same nature as mine. Readers who read German are invited to consult this excellent work, which is concise put rich in ideas. X PREFACE knowledge of the French language and would be a suitably quali- fied translator, should I ever contemplate an English version of my work. For some time I was he s itant to agree to his proposal. On reflection, however, I decided to accept the offer, thinking that however poor the book might be, if it were translated into one of the world's most widely used languages, it would contri- but e so mething to facilitate the s tudy of Japanese law of which so little was known in the world. I also hoped that this might also conform to my duty as a comparatist in law. Thus began the relationship between Mr. Anthony H. Angelo and me. The structure of the book refle ct s the audience for which the original French text was written. For example, almost all of the illustrations given to facilitate the comprehen s ion of Japanese law for French readers are tak en from French cultural sources. Th e foreign law with which I compare Japane se law is limited almost entirely to French law. Th e style is on the whole in line with Fr e nch ta ste. Such being th e ca se, a translation following th e original text faithfully would certainly vex English-speaking readers. Wisely seeking to avo id this difficulty, Mr. Angelo very freely adapt ed the text to make it more readable for Englis h- speaking readers, all the while utilizing fully the French text. I left the work of adaptation entirely to him. Although I gave him advice and made suggestions for the tran slation, the result- ing book is his own product rather than a mere translation of my work. On the whole the compos ition has been simplified. The division of chapters has been changed and a large part of of the text has been rearranged following his scheme, but I find the rearrangement successful. My original thoughts have not been di s torted in the process The English version ha s a further merit. Ten years have passed since the publication of the French text. During those years social, political, economic, and legal conditions have greatly changed in Japan. In the original text, therefore, we find many facts which ar e no longer in conformity with the pre s ent situation. Moreover, the French edition contain s a number of incorrect and infelicitous de scriptions and expressions. Efforts have been made to ensure that thi s new edition is as correct and up-to-date as possible. Apart from the changes already mentioned, I should comment • PREFACE XI on a fairly significant change, or more exactly, development, which has taken; place in my own thoughts on the subject of this book. When · writing the French text I perceived the great importance of the comparative study of civilizations in com- parative law. Since that time thi s perception has been accentu- ated more and more. Consequently my interest has turned more toward anthropology,psychology, linguistics, biology, and history of cultures and ideas than to law as a mechanism of social con- trol.2 From such a sociocultural point of view, this book should be revised entirely. It goes without saying, however, that so vast and laborious an undertaking cannot be realized within the frame- work of a translation. In thi s Pr e fa ce, I will therefore confine my s elf to commenting on the subje ct which I consider the most important from my pre s ent s tandpoint: th e problem of Japane se conception of law, treated in Ch a pter 9, · ''J a pan es e and the Law." In the first place, I wish to draw th e a tt e ntion of reader s to the question of national char acter. As tpe re ad er will see, my con- sideration of that que stion follows basically the theory of ethnic character s of Paul Grieger, an eminent Fr ench scholar. Although I do not mean to abandon hi s th eo ry entirely, I now think that the national character of the J apanese people might be better explained in another way. It would be ea sier to appreciate the characteristics of Japane se national character if we con s ider it as a complex of three character types chos en from the list drawn up by Rene Le Senne: nerveux, s entimental, and coUrique. U nfor- tunately, . this subject cannot be treated in detail here. I have explained my view on the matter in a paper entitled "Far Eastern Conception of Law;" which I contributed to the second volume of the International En cy clopaedia of Comparative Law. 3 I hope that it 1 Su ch a tendency may be per ceived in my pa per, " Quelques refiexions s ur le fondement du droit compar e: Essai d' une re c her c he anthropologique du fondement du droit compar e," in Asp ects no u veaux de la p ensle juridiq ue, Re cueil d 'l tu de s en hom mag e d Marc An cel , t. I ( Pari s: Editions A. Ped on e, 1975), p. 23f. 1 This large-scale publi c ation is to be published under the au spices of the In- ~national Association of Legal Science and with the cooperation of legal compara- tists and specialists throughout the world . The en t ire work is expected to consist of aev~nteen volumes. Although a complete v olum e is yet to appear, a substantial number of Installments, which will be combined to make up a volume, have been publ is hed already . Under the direction of renowned c omparati st Professor K. Zweigert, th e Max-Planck In stitute of Foreign and International Private Law is editing the en- cyclopaedia. •• Xll PREFACE will be published in the near future, and I would be grateful if the readers would take it into account when reading Chapter 9. Secondly, it may be useful to comment on the mentality of the Japanese. In explaining their mentality, I have said that the Japanese do not like to have recourse to litigation as a means of dispute resolution (see p. 159f). But after the publication of the French edition, there have been many social events which seem to indicate that in this respect a remarkable change may be taking place in the Japanese mentality. Almost everyday the newspapers are full of reports about actions brought to the courts claiming damages for loss caused by public nuisances of all sorts, motorcar accidents, etc. Under such circumstances, is it legitimate for us to leave intact the de scriptions given in Chapter 9? The be st way of course would have been to drastically modify this section, if possible. But such a modification would exceed the limits of our present scheme, and furthermore it is prudent not to pass ha sty judgment on so s udden a change in the mental aspect of a nation. Therefore, as material for the reader's reflection, I will only give my thoughts on the subject. No one can deny the fact that there has been a sudden rec- ognizable change in the mode of behavior of the Japanese in the field of law in these ten s hort year s. It would almost appear as though Japanese no longer hesitate before reso rting to the courts in order to claim their rights. Today, even rural inhabitants, who have till recently been considered the most conservative and the most reluctant to have recourse to judicial remedies, appear, willingly it seems, in court one after another. Without exaggera- tion we can say that we are now indeed seeing a ru sh for litiga- tion.4 Does this mean a radical change in the national character of the Japanese? I do not think so. But before I justify my opinion, let us define precisely what is meant by character. I use this word 4 We must, however, beware lest we fail to catch the actual meaning of this phenomenon, for the total number of civil cases brought to court has not greatly increased during these ten years. According to judicial statistics, the total number of civil cases brought to various courts was 1,748,344 in 1964 and 1,752,150 in 1973 (Outline ofCivil Trials in Japan, published by the Japanese Supreme Court in 1975). The rush is more psychological than real. Litigants tend to seek publicity for their causes rather than a settlement by judicial proce ss. This publicity in turn satisfies the general public's interest in sensational issues. ••• PREFACE Xlll throughout my study in the definition established by Rene Le Senne. & He distinguishes two aspects of what is generally called personali~. According to Le Senne, that part which forms the nucleus of one's personality is character in the strict sense of the word. "Character," he says, "means the mass of congenital dispositions which form one's mental skeleton,'' 6 while personality "comprises first the character, but also all the elements acquired in the course of one's life." 7 Thus, the notion of character is narrower than that of personality, and character in this sense is permanent and invariable. The elements composing the biological base of character might be transmitted by genes. According to biological theory, genes are extremely difficult to alter, even given the variation of surrounding circumstances4 Therefore, character, which may also be dominated by the laws of genetics, would remain immutable for a long time. So far I have considered only individual character, but national character, which is a complex of several individual character types, might mutatis mutandis be submitted to nearly the same biological laws. There are, it is true, so me difficulties which warn us against making hasty conclusions in this matter, but as they have been dealt with (seep. 160f), I will not repeat myself here. Be that as it may, if our conclusion is not too far from the truth, then the national character of the Japanese could not have ' changed radically in ten years. I do not deny that Japanese be- havior appears very different from that of ten years ago, but in my opinion, this merely means that their character, invariable in essence, presents different aspects in expressions and gestures under different circumstances. I have pointed out that in Japan we have even known a fashion in ideas (seep. 171). It seems to me that a sudden rush for litigation arising among people who until recently were very reluctant to appear in court can mean nothing but a fashion for litigation. Perhaps their character re- mains unchanged in spite of its different outward appearance. I would like to try to find the reason for this mental tendency. 1 Rene Le Senne, Traiti de car actirologie (Paris: Presses Universitaires de France, 1963). 1 Ibid., p. 9. 7 Ibid., p. 11. • XIV PREFACE Until recent times, and for over two thousand years, the Japane se have for the most part lived and have been engaged exclusive- ly in an agricultural life involving in particular rice cultivation. This type of work requires all cultivators to do the same thing at the same time following the dictates of se aso nal meteorological conditions. Since basically s imilar weather conditions prevail throughout Japan in each season, it follows that everyone every- where subcon sc iou sly acts in the sa me way at a given time. Thi s spontaneous uniform se t of actions has been rep ea ted regularly generation after generation, and so the habit of behaving simul- taneously in the same way has been deeply implanted in the mind of every Japane se. Thi s may be one of th e reasons why the Japane se people like to be hav e uniformly. I hope that this comm ent will help read ers to understand the Japane se mentality. Th ere are many other points in the text that I would like to comm e nt on or improve, but I must content myself with the the knowledge that what I have done in this book I have done to the best of my ability. Perfection is, after all, not of this world . • In putting down my pen, I wish to express my deepest gratitude to Mr. Angelo for all hi s kindne ss in preparing this excellent tran s lation and adaptation. Without hi s very cordial and en- thu s ia stic efforts, my Introduct ion would not have been available to English-speaking readers. I wish also to thank the editorial staff of the University of Tokyo Press, who undertook the publi- cation of this book, in particular, Ms. Nina Raj. Tokyo February 1976 Yosiyuki Noda TRANSLATOR-EDITOR'S NOTE I wish to record here my sincere thank s to Professor Rene Da vid of the University of Aix-Marseille for hi s early s upport for and continu ed interest in this translation, to the Japanese Ministry of Education for it s financial s upport for this project, a nd to the publishers for their meth odical preparation of the text and for the efficiency and apparent ease with which they guided it through the publis hing proc ess. Last, but by no mean s least, I wish to acknowledge th e very great assistance I have received from Prof essor Yosiyuki Nod a and to thank him for the inspiration of hi s example and the privilege of his collaboration. A need ha s long been felt for an introductory text to the Japa- nese legal system in English. It is hoped that this edition will fill that need. Wellington February 1976 Anthony H. Angelo INTRODUCTION TO JAPANESE LAW • INTRODUCTION AND HISTORY • [...]... slwshi [A Short History of Contemporary Japan], ed Tadao Yanaihara, Vol 2 (Tokyo: Misuzu, 1952), p lllf 26 Stoetzel, Jeunesse sans chrysanthbne ni sabre, p 193 18 INTRODUCTION AND HISTORY to care about it Another factor of the same kind is mentioned by Stoetzel in speaking of the problem of citizen participation in political life: Japanese on the whole think that citizens must be able to comment on public... came to represent the right of enjoyment itself After his victory over the Taira clan, Y oritomo confiscated all the land that had belonged to that family and distributed it to his vassals He then required that the imperial court appoint him as chief jito, which meant that he could send his vassals to each sho in his capacity as jito and allow them to enjoy the shiki corresponding to his office The jito,... solutions to problems posed by the government authorities according to the rules of ritsu-ryo, constituted an important source of customary law 2 Honjo-ho The customary law that applied to all the private manors was called honjo-ho It varied greatly in content from region to region, but it is possible to distinguish the custom peculiar to a given sho, that common to the region, and that commo·n to the... Boissonade taught was annexed as a French law section to the Faculty of Law of Tokyo University in 1885 In the first years of the Meiji era a very large number of the judges were trained according to French law, and prior to the coming into force of the Japanese codes the judges decided most cases according to French or English law 54 55 INTRODUCTION AND HISTORY RECEPTION OF WESTERN LAW In 1904 sixteen... glnlrale (Paris: Payot, 1915), p 155 See also Jean Stoetzel, La psychologie sociale (Paris: Flammarion~ 1963), p 130f What Stoetzel says about Chinese can be said equally ofthejapanese language 14 15 INTRODUCTION AND HISTORY INTRODUCTION the feudal period in particular, have been preserved.u Japanese society has passed directly from the state of feudalism to that of capitalism without knowing anything... a good dictionary Of course, not everyone knows all these characters Moreover, there is no need to know even a half of them to be able to read and write Japanese in a cultured way Since 1946, the Japanese government has been trying to limit the number of characters used in daily life At present the limit is set at 1,850, but anyone who wants to read the great Japanese classics would need to know at... According to one historical document this code was promulgated to prevent underhand dealings, and judges were required to solve disputes in accordance with its rules From this it should be understood that according to the traditional conception of law its purpose was rather to prevent social conflict than to determine which of the parties to a dispute was right Law existed first for the rulers; the protection... 20 21 INTRODUCTION AND HISTORY HISTORY TO 1868 the ancestor of the imperial family, and this is what the· Chinese documents, particularly the description of San-kuo Chih (History of the Three Kingdoms), lead one to believe There is however a great difference between this thesis and the tradition handed down in Kojiki4 and Nihonshoki, 5 the first historical books produced in Japan According to them,... Facultad de Derecho de Mexico (1953), p 253 8 9 INTRODUCTION AND HISTORY INTRODUCTION For those who take this view of comparative law, tlle development of Japanese law provides material which will enable them to extend their studies both substantially and methodologically The relationship between the structure of Japanese law and the reality of the social life to which the law is applied shows itself in... Dynasties period 11 E.g., tadasu, to make right or correct 12 , INTRODUCTION AND HISTORY sions used for the same thing varied noticeably according to the social class of the persons concerned Two persons belonging to different classes did not use the same expression to refer to the same object For example, one person would use different personal pronouns when referring to himself, depending on the social . H. Angelo INTRODUCTION TO JAPANESE LAW • INTRODUCTION AND HISTORY • CHAPTER I INTRODUCTION THE STUDY OF JAPANESE LAW Most people are attracted to the s tudy of Japan and. (Paris: UNESCO -Plon, 19 53), p. 53. 11 Often of a superstitious nature. 11 Stoetzel, Jeunesse sans chrysantheme ni s abre, pp. 54-55. 16 INTRODUCTION AND HISTORY pagnonnage of. in 19 66. For more than thirty years, I have taught almost exclusively French law at the Law Faculty of the University of Tokyo. From 19 61 to 19 63 I was in Paris to extend