Lecture 5. Legal system of japan

1. Origin of Legal System of Japan. Westernisation of Japanese Law

2. Postwar Development of Japanese Law. Influence of American Law

3. Distinctive Features of Legal Understanding of Japanese.

"Living Law"

1. Origin of Legal System of Japan. Westernisation of Japanese Law

The modern law of Japan is an interesting object for comparative law. Surviving and modem traditions are interlaced therein of the extra¬judicial settlement of disputes with new codes and procedural norms which were first created along the models of French and German law, and after the Second World War - American law.

The shogun of the Tokugawa dynasty for several centuries endeavoured as fully as possible to isolate the country from the external world: no Japanese could leave the country, nor foreigner, with rare exception, penetrate within it. The situation began to change in the second half of the fourteenth century, and this process was completed by the Meiji revolution ("enlightened rule"). The development of Japan along a capitalist path required also the modernisation of law. It proceeded basically by means of the reception of European law.

The Romano-Germanic model of law was received by Japan al the end of the nineteenth century. For hundreds of years the Japanese State has consciously conducted a policy of isolation from the rest of the world. Japan experienced strong Chinese influence in ideology, religion, and culture. Chinese script came to Japan in the fifth century, and then Buddhism. Japanese rulers of the seventh to thirteenth centuries were admirers of Chinese cultural and spiritual life. They were well acquainted with Chinese literature and art, accepted the Buddhist religion, and reorganised State and legal life along the Chinese model. The early Japanese laws were greatly similar to the laws of the Tang dynasty. The most suitable social philosophy for Japanese society with a hierarchical structure was Confucianism, which spread widely during the rule of Tokugawa (1613-1868). A judicial system was created in the country, civil disputes, as in China, being decided primarily with I he assistance of extrajudicial conciliation procedures.

At the same time, mediaeval Japanese law preserved its originality connected with the national character of the Japanese. Isolation also exerted a certain influence in this respect, in which l lie- Japanese rulers held the country for 250 years, until 1853.

Fundamental transformations of Japanese society commenced in the era of the so-called Meiji revolution, when in 1868 the power of the military rulers of the country was eliminated - the shogunate, an imperial government formed, and within a brief interval of time a series of reforms effectuated in various spheres of social life. In the course of reforms the privileges of Japanese nobles - the samurai were eliminated, the legal equality of four estates proclaimed (samurai, peasants, craftsmen, and traders), and the right of ownership to land recognised for peasants. The Government undertook sundry and energetic efforts to develop market relations, including by borrowing the achievements of western countries in the fields of industry, education, and trade. But these transformations, European in orientation and substance, were inconsistent and were accompanied by the preservation of a number of mediaeval institutions.

Local Japanese law was absolutely unsuited for resolving the new tasks. It was decided to modernise the legal system of the country as a whole. The sole means of rapid restructuring of law was the reception of western European legal systems. From the 1880s to the beginning of the twentieth century the Japanese Government introduced into operation a number of important legislative acts drawn up along the model of French and German codes.

Under the leadership of the French jurist, G.Boissonade, and on the basis of French codifications the drafts of several codes were worked out: criminal (1890), trade (1890). It should be noted that the said draft laws were seem as too democratic by the ruling elite of Japanese society. The were subjected to sharp criticism, it being declared in particular that the civil code was published and loyalty to the emperor and the duty of a son had perished. For this reason the draft civil and criminal codes did not become laws, and the code of criminal procedure (1880) and trade code (introduced into operation by parts in 1893 and 1898) had a brief life.

The law of Kaiser Germany, with its strong imperial power, limitation of the freedoms of subjects and retention of privileges for the landowners and junkers was more appealing to the legal ideas of the Japanese Government. The process of reception into Japanese law moved from French to German law. At the end of the first quarter of the twentieth century, German influence has become primary and remained such until the surrender of Japan in the Second World War. In other words, a precise reflection of German legal science is to be seen in Japanese law.

Following the model of the 1850 Constitution of Prussia, the first 1889 Constitution of Japan (Meiji Constitution) was drawn up. The German model lay at the base of the 1898 Civil Code, 1899 trade code, 1907 Criminal Code, and 1907 Code of Criminal Procedure. As regards criminal procedure, German influence dominated in that branch of law (to be sure, somewhat later than in other spheres). In 1922 a new Code of Criminal Procedure was enacted, worked out along the model of the German code of criminal procedure.

Thus, in a very brief period a new law was created in Japan virtually unconnected with the legal system previously in force. Of course, the process of accepting Romano-Germanic law by Japan should not be understood to be merely a mechanical reception of western European legislation. In the domain of constitutional, family, and inheritance law the concepts of emperor and family had specific Japanese features.

The 1898 Civil Code of Japan consisted of five sections - the General Part and sections devoted to things, obligations, family, and inheritance law. The Civil Code of Japan is in force today, but has been repeatedly augmented by special laws. The 1899 Japanese Trade Code consists of four sections in which the following questions are regulated in great detail: General Part, trade transactions, and maritime trade. The trade code does not contain procedural rules, and there are no special trade courts in Japan. It has been subjected to more changes than the Civil Code. In the sphere of trade relations a number of laws have been issued without being integrated into the text of the trade code; for example, the law on securities.

The 1899 Constitution endowed the Emperor with exceedingly wide prerogatives. He had the right to appoint ministers, judges, members of one of the two chambers of the parliament - the chamber of peers. Shintoism, proclaimed as the State religion of the country, referred to the emperor as "God in the form of man".

The 1898 Civil Code in the sections relating to family and inheritance law consolidated the exceptional position of the head of the family. Without his consent the members of the family could not marry. After the death of the head of the family, his rights and all of his property were received by the eldest son. The wife and other members of the family were excluded from inheritance. The wife was deemed to lack civil legal capacity, and her property was managed by the husband. From the moment of conclusion of marriage, the women became a member of the husband's family. Nonetheless, the institutions of Japanese origin were an insignificant component of "westernised" Japanese law.

In the codes adopted, the elements of various western European legal systems were combined. In the civil and trade codes, for example, although the ideas and conceptions of German private law clearly predominated, concepts and institutions were encountered that were borrowed from French and sometimes even from English law. Such acts as the 1922 law on trust ownership and the 1923 law on jurors were drawn up under the influence of Anglo-Saxon law.

Professor Boissonade prepared draft criminal and criminal procedure codes, reminiscent to a great extent of the French codes that entered into force in 1880. The draft civil code prepared by him, just as the draft trade code of Professor Roesler, encountered strong opposition in parliament. The preparation of the civil code was re- entrusted to a commission composed of three Japanese professors. The draft of 1896-98 reflected the influence of French law, the German civil code, and Japanese customary law, whose norms the compilers included in family and inheritance law. As a whole, German influence predominated.

The Japanese Civil Code entered into force in I898, and the following year the trade code entered into force.

Changes were repeatedly made in the civil and trade codes of Japan after their issuance; however, the practice of issuing additional laws not included in those codes was widespread. Among the most important of them were 1899 laws on licensing, trademarks, and author's right, the 1921 laws on the lease of land and lease of housing, and others.

Questions of civil procedure were regulated for a long time by the Law on court organisation and Code of Civil Procedure adopted in 1890. A judicial procedure for the consideration of disputes was for the first time in Japanese history introduced by those acts; before then, as a rule, they were settled by compulsory conciliation on the part of feudal lords. In 1926 the Japanese Code of Civil Procedure was issued in a new version prepared along the model of Austrian legislation and providing for an intensification of the active role of the court in the course of consideration of a case.

One way or another, the legal system formed in Japan after the Meiji revolution represented a variant of the Romano-Germanic legal family. The question arises: did this legislation become "law in life" or did it remain "law in the books"? We note before answering that after the Second World War American models exerted a strong influence on Japanese law. The 1946 Constitution of Japan testifies to this, as does the 1948 reform of criminal procedure law. The Code of Civil Procedure also was amended to enlarge the principle of adversarialness. The American influence told on legislation in the sphere of the economy (law on companies, anti-trust legislation).