Japanese Law, Influence of European Private Law
by Harald Baum
1. Historical background and political dynamics
During the time of the Tokugawa Shôgunate (1603–1868), Japan successfully cut itself off from foreigners. The hermetical closure of the country started in the early 17th century and lasted until the late 1850s. In this way Japan managed to keep its independence vis-à-vis the European colonial powers, and the country kept its status as a feudalistic society. Heavy state control was characteristic for its agrarian, pre-industrial economy, with little room for entrepreneurship and market forces. Rights were defined by status, and enforcement of individual rights of citizens—as far as these existed at all—was seen as an act of grace granted by the authorities towards their subjects. Virtually all essential institutions of a functioning modern law-based society were missing in Japan until the beginning of the reforms of the 1860s. Namely, the separation of powers, an independent judiciary and a legal profession (with its tradition of representation of the parties by attorneys at the law courts) were non-existent. Also, no codified law to speak of, nor collections of law based on precedents, were known.
This period of stability ruthlessly enforced by the authoritarian Tokugawa-regime ended abruptly when, in 1853, the United States sent a flotilla of gunboats to Japan demanding an opening of the secluded country’s harbours to foreign vessels and an integration of its economy into the international trade system. The Japanese government realized that it had no means to resist these claims and thus agreed to the opening of the country. As a consequence it rapidly concluded a series of trade agreements with most western industrial nations in the second half of the 1850s. These so-called ‘unequal treaties’ resulted in a severe loss of sovereignty for Japan. Among other effects, foreigners were free to settle in designated areas and to do business there as they liked. Foreign residents were granted legal extraterritoriality and were not subject to Japanese jurisdiction. Instead, a system of consular jurisdiction was introduced. The humiliation of Japan by the western nations led to severe political uprisings in the country that finally resulted in the deposition of the Tokugawa-government and the re-instalment of the Tenno as the highest state authority. As a paradigmatic shift, the so-called Meiji-Restoration of 1868—or rather Meiji-Renovation (Meiji ishin) as it is called in Japan—signalled the decisive victory of the modernizers over the representatives of the old regime.
A central reform goal of the new government which was given high political priority was the introduction of a modern law regime modelled on western conceptions. This had two primary causes. One was that the western nations involved had reservations about a reversion of the (for Japan disadvantageous) ‘unequal treaties’. They claimed, among other things, that Japan’s ‘underdeveloped’ legal system had first to be modernized. The second reason for creating a modern (meaning a western) law system was the conviction of the Meiji-government that such an institutional framework was a prerequisite for nursing strong economic growth. Besides being regarded as an end in itself, strong growth was also seen as the basis for creating a strong military and consequently for assuring Japan’s safety and independence. The motto of all reforms was wakon yôsai—‘Japanese spirit, western knowledge’. In this way, the reformers hoped to keep the critical balance between western ideas and Japanese tradition.
2. The creation of the modern Japanese private law
Under the given historical circumstances the creation of a modern legal system had to be managed as quickly as possible. To achieve this goal, the Meiji-government sent young Japanese abroad to be educated as jurists and to gain practical experience. Above all, it invited various foreign legal advisers to Japan, who were at least initially of critical importance for the drafting of laws and the setting up of the judicial institutions. In this way, Japan successfully managed to create a fully functioning western legal system within not more than 30 years—a cultural achievement of the highest proportions. By the year 1900 all major laws were enacted and the law courts, the state prosecutors, as well as the attorneys, had started their respective professional work.
The legal reforms in Japan were based on broad comparative foundations. However, as it became clear rather soon, only the adoption of codified law was feasible for practical reasons. In spite of an initial interest especially in English law, the reception of a system of precedents, as is characteristic for the common law, proved to be too complicated and time consuming. Thus the Japanese interests focused on the civil laws of continental Europe. Within these legal orders first the French and later the German law were of primary, though not exclusive, interest. In the early Meiji years, mostly French jurists were invited as advisers to Japan. However, from the 1880s onwards German jurists increasingly took their place. The foreign advisers naturally brought their own laws with them, but most were competent enough to put the legislative work undertaken jointly with their Japanese colleagues in a broad comparative context. The latter were themselves influenced by the legal order of the countries where they had studied—mostly in the United Kingdom, France and Germany.
After many years of intense work, heated discussions and the presentation of various drafts shaped by different legal models, the legislative efforts in the field of private and commercial law finally led to the enactment of two major codifications: the Civil Code (Minpô) of, respectively, 1896 (general part, law of property, law of obligations) and 1898 (family law, law of succession) and the Commercial Code (Shôhô) of 1899. The work on a civil code had started as early as 1870 by attempting simply to translate the French Code civil into Japanese. The translation met with many difficulties. A first major problem was the terminology. The Japanese language did not provide for the necessary expressions. For example, to translate the term ‘individual right’ a new word—kenri—had to be created. The Japanese translation presented in 1878 was generally rejected as a draft for a civil code for Japan because of its exclusively French character. The government started a new attempt to create a civil code in 1880 when it commissioned the French jurist Gustave Emile Boissonade de Fontarabie (1829–1910), a former law professor at Grenoble, to draft the sections on property and contract law. The work on family law and the law of succession was entrusted to native jurists to make sure that the pertinent Japanese traditions were attended to. Although Boissonade looked at the Code civil for a basic orientation, his draft was nevertheless a codification of its own. Thereafter, Japanese jurists reworked and supplemented his translated proposals. The resulting legislative draft, later called the Kyû-minpô (Old Civil Code), was enacted in 1890 and originally scheduled to enter into force in 1893—that, however, did not happen.
At more or less the same time the Japanese government had asked Boissonade to start his work on the Civil Code, it had commissioned the German jurist Carl Friedrich Hermann Roesler (1834–94), a former law professor at the University of Rostock, a northern German town, to draft a commercial code. Roesler had already been active in the preparatory works for the first Japanese constitution of 1889, the so-called Meiji-Constitution. He presented a comprehensive draft of 1,133 articles in total in 1884 that included not only commercial law, but also company law, parts of insolvency law and other areas. In order to create a truly modern codification Roesler chose a comparative approach and combined elements of the French Code de commerce of 1870 with those of the German Allgemeines Deutsches Handelsgesetzbuch of 1861. Additionally, he took special note of the Egyptian Code de commerce and Code maritime of 1874. On the other hand, he purposely excluded all the customary law of the Japanese merchants that he regarded as thoroughly outdated, which would later turn out to be politically disastrous. In form the draft law reflected French influence; in substance it predominantly took reference from German law. After a substantive revision by Japanese jurists that lasted until 1889, parts of the draft, later called the Kyû-shôhô (Old Commercial Code), went into force from 1893 until 1899.
However, like the Old Civil Code, the remaining parts of the draft fell victim to what was termed the ‘codification controversy’ (hôten ronsô) that was ignited in 1889 with the publication of a fierce criticism of the drafts of the Old Civil Code and Old Commercial Code. Above all, the opponents criticized the neglect of customary Japanese law as well as conceptual contradictions between the two codes, as the Civil Code was predominantly influenced by French law and the Commercial Code by German law. The dispute that also reflected the interests of the different legal schools in Meiji-Japan became increasingly vicious and emotional. A climax was the publication of a famous polemic by Yatsuka Hozumi, a well-known constitutional lawyer, in 1891. The author denounced the introduction of individual rights after the European model in the Old Civil Code as grossly contradictory to the traditional Confucian ethics and morals and called the law a ‘murder weapon’ applied against the Japanese people. Given the general discontent with the western influence that was increasingly regarded as a foreign alienation, the government had no choice but to postpone the coming into force of both laws and to start yet another revision. To this end it set up two reform commissions in 1892 under the supervision of the prime minister and staffed exclusively with Japanese jurists.
Responsibility for the Civil Code rested with the three law professors Nobushige Hozumi, Masaaki Tomii and Kenjirô Ume, who had studied in different European countries. The reformers orientated themselves predominantly, but by no means exclusively, on the legislative work for a German Civil Code, the Bürgerliches Gesetzbuch (BGB), undertaken simultaneously in Germany. Of special interest was the first draft of the BGB published in 1887, but also the second draft of 1895 was consulted. With this the dominant French influence on the Japanese civil law had come to an end, although, even today, numerous French legal institutions are embedded in the Japanese Civil Code. The shift towards the German developments had different reasons. Politically, Germany gained in reputation in the wake of its military victory over France. Also the enactment of the Meiji-Constitution in 1889 helped to shift the balance in favour of German law. Most important, from a technical point of view, the nascent BGB was regarded as more modern and sophisticated than the Code civil created almost a century before. The complete revision of the Old Civil Code took six years (1892–98). Its aim was the creation of an original Japanese civil code that would be free of the deficits of the Boissonade draft but would not deny its French roots or become a carbon copy of the German BGB. In this the three reformers were successful. The amended law, the so-called Meiji-Civil Code, and especially its sections on the law of property and the law of obligations, has been characterized as the fruit of an intense and thoughtful comparison of law, even though its formulation in fact represents more of a technical rather than a doctrinal comparative approach. Also, Japanese traditions were taken into account. However, the fundamental conservative criticism of the creation of individual rights as such was disregarded.
Different from the Old Civil Code, the new Civil Code follows the Pandectist system (Pandektensystem). As with the BGB, the Minpô is divided in five books, although the order differs slightly. It starts with general provisions followed by the law of property, the law of obligations, family law and finally the law of succession. The Minpô is less detailed than the BGB and contains only half as many provisions. The Civil Code is characterized by a mix of provisions, some of which are of German origin without corresponding rules in the Code civil; others originate in French law with no counterparts in the BGB. The general provisions, for example, are strongly influenced by German legal thinking, and the articles on juridical acts, expression of intention or representation are of German origin. Nevertheless, the rules on prescription follow the French model. The law of property, on the other hand, is to a larger extent shaped by French legal thinking. Thus, like the Code civil, the Minpô does not encompass the so-called Abstraktionsprinzip which is the hall-mark of German property law. Also, the preferential rights provided for in the second book of the Minpô originate from French law and are unknown in the BGB. The third book on obligations has a particularly broad comparative foundation. The general provisions on obligations are influenced by the Swiss Obligationenrecht. The rules on sales contracts are influenced by Japanese customary law. The substitution of the creditor is modelled after the French action oblique. The sections on unjust enrichment and agency without specific authorization are similar to those of the BGB. The rules on torts and damages are shaped along the lines of English case law.
The first three books went into force in 1896. The revision of books four and five took another two years until 1898. As family law and the law of succession are especially interwoven with tradition, the drafters of these two books took into account the demands of conservative circles to respect Confucian ethic and morals to a much larger extent than is the case in the three other parts of the Minpô. The most important example of this was the traditional Japanese concept of the family as it is expressed in what is known as the ‘house-system’ (ie-seido). That concept reflected the basic elements of the Confucian family ethic of the former samurai-class, with its traditional designation of rights to rule and of the corresponding obligations to obey among the members of a family. Although contradicting to some extent the individual rights provided for in the first three books, the house system was integrated as a central feature in books four and five of the Minpô until the reforms of 1947. In this context the Pandectist system (Pandektensystem) showed its functionality: the separate books of the Meiji-Civil Code could partly adopt western models and partly preserve the Japanese tradition. Together with the reception of European law, Roman law became part of the Japanese civil law. The fruits of Roman legal thinking can be found at various instances throughout the Japanese Civil Code.
Simultaneously with the reform commission on civil law, a second commission on commercial law was set up in 1892 under the supervision of the prime minister and also staffed with three Japanese law professors: Keijirô Okano, Yoshi Tabe and—in overall charge—Kenjirô Ume, who was also active in amending the Old Civil Code. The revision of the Old Commercial Code was even more strongly modelled after the German Allgemeines Deutsches Handelsgesetzbuch of 1861 than the Roesler draft; furthermore, the German Aktiennovelle (stock corporation law) of 1871 in its revised form of 1884 was taken into account. Quite surprisingly, the modern German Handelsgesetzbuch (Commercial Code) of 1897 was by and large disregarded by the reformers. One reason for this was the lack of time; the other was that the commission regarded the new German code as being too advanced for the Japanese economy at that stage. The revised Commercial Code, the Shôhô, went into force in 1899. Regardless of various partial amendments (1911, 1938, 1950 and many times thereafter), it remained unchanged in substance until the fundamental revision of 2005 when the sections on corporate law were taken out and integrated into the newly formed Company Act (Kaisha-hô). The enactment of the Commercial Code concluded the period of practical legislative receptions. It followed a period of significant adoption of legal theories and doctrines.
3. Further development of the modern Japanese civil law
Whereas the receptions of codes drew on a variety of sources, the adoption of legal theories that lasted until the 1920s almost entirely focused on German legal reasoning, namely legal doctrine and the so-called Begriffsjurisprudenz. Regardless of the institutional diversity found in the Civil Code, German legal doctrine was more or less exclusively used for the Code’s systematic order and interpretation. As the different origins of the individual provisions were mostly disregarded, frictions between their wording and their understanding were unavoidable. Furthermore, various legal concepts newly developed in Germany were imported into the Japanese civil law without much heed for the existing legislative frame. A prominent example would be the positive Vertragsverletzung, a specific kind of breach of contract. At that time the famous saying was coined that only ‘German’ law could be regarded as ‘Japanese’ law. From the mid-1920s onward, German legal influence started to wane and criticism against it grew; however, by and large German thinking played a dominant role in the legal discussion in Japan until the 1940s.
After the end of World War II the allied forces, under the leadership of the United States, started what was dubbed the ‘democratization’ of Japan. An important goal of that programme was the drafting of a new constitution for Japan and a fundamental revision of the country’s economic laws along the lines of the US model. The same was true for the court system. The civil law was also reformed in parts against fierce opposition from traditionalists. In particular, family law and the law of succession were completely revised in 1946/47 to comply with the principles of Japan’s new constitution. The feudalistic ‘house-system’, and the corresponding dominant position of the (exclusively male) ‘house-heir’ that characterized large parts of the fourth and fifth books of the Meiji-Civil Code, were replaced by modern rules that guaranteed an equal treatment of the sexes and of the descendants. The numerous legal reforms under the allied occupation of Japan inevitably led to a shift of the comparative attention towards the US legal system. Ever since, US law has become a consistent and prominent part of comparative law in Japan.
Nevertheless, since the 1980s the law of the European Union has gained increasingly comparative importance for the drafting of new Japanese laws. Examples for this are, among others, in the fields of product liability and consumer protection. In 1994 Japan enacted a modern Product Liability Act (Seizôbutsu sekinin-hô). The substantive regulations of the Act are modelled in accordance with the liability standards laid down in the pertinent EC directive of 1985 (Product Liability Directive 85/374). The United States played only a secondary role in preparing the Act. Similar developments can be observed with respect to the Act on Consumer Contracts of 2000 (Shôhisha keiyaku-hô). Preparations for that Act began in 1997 on a broad comparative basis. Once more, besides the pertinent US regulations, EC regulation, this time in the form of the 1993 Directive on Unfair Terms in Consumer Contracts (Dir 93/13), was consulted. Although the Act responds primarily to Japanese case law, one also finds characteristic regulations for specific issues that originate partly from EU law and partly from the US model. This clearly contradicts the common assumption of an all out ‘Americanization’ of present day Japanese law.
A major reform of the first and third books of the Civil Code started in 2008, and that is scheduled to come into force in 2012. A draft proposal for discussion was published in 2009. The drafters paid special attention to the Convention on Contracts for the Sale of International Goods (CISG), the Draft Common Frame of Reference (DCFR), the Principles of European Contract Law (PECL) and, last but not least, the major German reform of the general provisions and the law of obligations of the BGB in 2001, the Schuldrechtsmodernisierungsgesetz. Thus, at least in part, German civil law has once more become a source of inspiration for the highly professional comparative lawyers who are drafting Japanese legislation.
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