Abstract

 Japan came to have a legal system just after the Meiji Restoration. It was strongly affected by Western Europe. Each and every law is affected by the different countries and different periods. Hence, they sometimes appear incompatible with each other.
 I would like to analyze the fundamental principles in the Japanese legal system through the interpretation of the fundamental codes.
 In this task, the principles can be examined in three ways. First is the change in the concept of liberalism. Second is the difference between the Continental legal system and so-called Common law. Third is the change from the Meiji Constitution to the Showa Constitution.
 The most characteristic thing in the Japanese legal system is that it does not have its own ideas.

Essay Plan

1. Introduction

2. General Remarks

3. From The Meiji Constitution to The Showa Constitution

 3.1 The Significance of The Constitution
 3.2 The Background of The Meiji Constitution
 3.3 The Principles of The Meiji Constitution
 3.4 World WarII and The Showa Constitution

4. The Penal Code And The Code of Criminal Procedure

 4.1 The Background of The two Codes
 4.2 The Principles of The Penal Code
 4.3 The Principles of The Code of Criminal Procedure

5. The Civil Code And The Commercial Code

 5.1 The Background of The Two Codes
 5.2 The Principles of The Civil Code
 5.3 The Principles of The Commercial Code

6. Conclusion


1. Introduction
 

 I graduated from the Faculty of Law of Waseda University and I have been teaching the Japanese Civil Code and Penal Code and other legal topics in vocational schools. While doing so, I have been considering the Japanese attitude toward the legal system as part of my tasks.
 The legal system which includes liberty and democracy is of European concept. However, the Japanese must have had their own habits and principles and have probably always suffered from the conflicts between European ideas and their own principles. The conflict between the legal system and Confucian ideas from China is a typical example of this situation, although it appears clear that European legal thought has overcome Confucian ideas in Japanese daily life. For example, to claim a pay-rise is considered a fundamental right for an employee, but he or she will not be respected if he or she continues to press too eagerly for it.
 Indeed, it is too big a task for me now to examine whether the Japanese attitude toward the legal system is unique or not in this essay. I think, rather, it is a good opportunity to discuss the overall mainstream of Japanese legal thought through the interpretation of laws, because I am going to be a lawyer and I am afraid this is my last chance to pay attention to the balance of interpretation of each Code.


2. General Remarks 
 

(a) Law is a social norm, but its biggest difference from other kinds of social norm is that law is enforced by the power of the state.
 So strong is the effect of law, that the realization and application of lax depend on a syllogism. A main Premise is written or interpreted, a Minor Premise is recognized and applied to the Main Premise, and the conclusion is drawn. This procedure is just the same with natural rules.
 However, there is a big difference between social norms and natural rules. In the case of social norms, the Main Premise is nothing but an idea or thought, even if it appears to have a objective value. For example, the proposition "A juristic act against public policy or good morals is invalid" (Article 90 in the Civil Code) appears natural, but that is because the state makes people feel so and nobody can prove it. Therefore the social norm is a problem not of sein but of sollen.  (b) Therefore law has an intention or aim in order to realize some social demand which is caused by economic, political or social facts. It is important to examine how historical facts affect the legal system.
 When we think of modern history, capitalism and liberalism have been the two biggest factors. Still, capitalism and liberalism changed from the 19th century to the 20th century. This change affects the contents of the legal system. For example the Civil Code has changed principle from classical liberalism to liberalism amended by the idea of Welfare. I would like to think of this aspect as a first dimension of the Japanese legal system.
 The second dimension is the difference between the Continental legal system and so-called Common Law. The Continental legal system typified by the French legal system, has drastically changed its principles since the age of revolutions and has entrusted powers to the legislature. In contrast, Britain has changed its principles very slowly, because it had already developed democracy to some extent. The American legal system has contained the idea of antipathy against the home country and legislature, and this situation brought the power to review the constitutionality of laws. This conflict between two legal systems affects the Japanese legal system.
 Further, the difference of level in the legal system makes a third dimension. This means that every legal system has a constitution as the most fundamental law in its legal system, and each and every law is affected by the constitution. Therefore, if the constitution is re-written, the other laws must change their meanings according to the new constitution. This situation actually happened in the Japanese legal system. The Civil Code and the Penal Code go back to the Meiji era, but after the new constitution was born the two codes have changed their meanings in the legal system.
 I would like to analyze the Japanese fundamental laws through the interpretation of each code. In this essay, the first dimension will appear mainly in the principles of private law. The second dimension will appear in the gap between the Penal Code and the Code of criminal Procedure. The third dimension will be treated in chapter 3 through the change of constitutions in Japan.  

3. Form The Meiji Constitution to The Showa Constitution

3.1 The Significance of The Constitution

 A constitution is obviously one of the laws. What is law? It is usually defined as a social norm which is supported by the power of the state. Law is an enforceable rule of conduct.
 There is always the danger of power being misused. The misuse of power violates people's rights and liberties. Hence, there must be something which can limit the power of the state in order to protect the rights and liberties of the people. This is a constitution, which was an invention to limit the power of the state in order to protect human or civil rights.
 Still, there is an argument about how constitutions have evolves. According to C.H.McIlwain, "constitution" does not mean anything more than supreme law, therefore it existed before the Civil Revolutions (1776,1789 and so on), even in Ancient Rome. He describes the progress of constitutionalism as a series of slow steps from jurisdictio (no separation between rights and legal order) to gubernaculum (unlimited by jurisdictio). He thinks of modern contitutionalism not only as a legal limitation on government but also as the political responsibility of the governors for government.
 In this way, there may be various definitions of "constitution", but we can agree that it it's the greatest common measure, the most fundamental law in a legal system. It exists at the top of the legal system and affects the contents of each and every law.
 In Japan, the concept of a constitution was imported after the Meiji Restoration, as I shall mention later. The Meiji Constitution was based on the idea of constitutional monarchy, although it also included the idea of a divine origin based on the Imperial Ancestors. However, the Showa Constitution is based on liberal democracy : the principles of the constitution have completely changed and the change cannot help affecting the contents of each and every law. This is just like the situation when the movement of a light changes the shape of obstacles.
 Therefore, it is important to examine what kind of constitution was introduced into Japan.


3.2 The Background of The Meiji Constitution  

 1854 was the year when Japan first appeared in modern international law, because Japan then concluded the Treaty of Friendship and Commerce with the United States of America. It was not an equal treaty, but at least Japan was included in international society as a sovereign state, not as a colony.
 In the middle of the nineteenth century, the developed capitalist countries of Western Europe had reached the stage of imperialism. Japan started the absolutism of the developed capitalist countries of Western Europe had reached the state of imperialism. Japan started the absolutism of the Tenno (Emperor) after Meiji Restoration of 1868. Japan had to catch up with those countries through state-led development. This is the external element of the Meiji Constitution.
 As for internal elements, European liberalism had been introduced into Japan, and the movement for liberal democracy was relatively active. Against this movement, the government promised to provide a constitution and call the first imperial Diet (Parliament) by 1890.
 Hirobumi Ito was chosen to go to Europe to investigate and study European constitutions. He felt that the constitutional monarchy of Prussia was the fittest system for Japan and decided to make a system centred on the power of the Tenno. This enactment was supported by Herman Roesler (1834-94) and Albert Mosse (1846-1925), Prussian lawyers who were hired by the Japanese government.


3.3 The Principles of The Meiji Constitution

The characteristic principle of the Meiji Constitution was the sovereignty of the Tenno. The sovereignty of the Tenno was derived from two different sources.
 The first was the idea of a divine origin for royal authority, which in Europe had referred to the Christian God, but in Japan was based on the idea of the Imperial Ancestors. The absolute position of the Tenno has its origin in the Imperial line going back to Amaterasu Omikami (the Sun Goddess) and Ninigi no Mikoto.
 The second was constitutionalism. Even a person in a divine position had to make politics and was subject to the constitution, because Japan had to appear to be a developed country.
 In this way, the constitutional monarchy was the result of a compromise between monarchism and constitutionalism. Therefore it is natural to have a great controversy about whether they are compatible or not (in Europe itself as well as in Japan).
 The sovereignty of the Tenno appeared in the political system (1) as the main power in the legislative process (Articles 5,6); (2) in connection with declaration of war and conclusion of treaties (Articles 13); (3) in the administration of the civil service (Article 10); and (4) as the prerogative of supreme command over the armed forces (Articles 11,12). The legislative poser of the Diet (Parliament)was limited and it did not have a structure to reflect the people's will, because the House of Nobles had equal power with the House of Representatives and the electorate was limited according to property and excluded women.
 The people's rights were not thought of as natural human rights but as retainers' rights, which were protected within the limits of "legal reservation". This is connected with the concept of "rule by law".
 The concept of 'rule by law' was developed through the history of revolutions against the great power of the executive, which were carried over from the old monarchies of the continental countries of Europe. This principle requires that policies are fitted to laws, because the legislature should be the more democratic political institution. But this means at the same time that the people's rights can be easily limited by legislation.
 The Meiji Constitution failed to bring all the institutions into a constitutional framework. The Genro (the Emperor's chief private advisers), the General Staff and other important bodies were left out of the legal system, so that, for example, the declaration of war in 1941 and the surrender in 1945 were decided by the Tenno and the General Staff, not by the Diet. The Meiji Constitution was forced to its end by its external effects.

3.4 World War II and The Showa Constitution 

 When Japan was defeated in World WarU, Japan had to accept the Potsdam Declaration. This required the exclusion of persons responsible for war from politics; disarmament; occupation by the Allied countries; the loss of Japan's colonies; the restoration and consolidation of democratic methods; and the establishment of fundamental human rights, which became the backbone of the Showa Constitution. These principles were clearly incompatible with the Meiji Constitution which had been based on the principle of the sovereignty of the Tenno.
 It has been reported, nevertheless, that the Japanese ruling class thought they did not have to change the Japanese political system. This led to G.H.Q issuing directives about constitutional amendments to the Shidehara Cabinet.
 A draft written by Matsumoto (Minister of State) was submitted to G.H.Q, but Macarthur rejected it because its contents were almost the same as the Meiji Constitution. MacArthur was already notified about a plan of the State-War-Navy Coordinating Committee. He indicated three principles, (1) the symbolization of the Tenno, (2) the renunciation of war as a sovereign right of the nation and (3) the abolition of feudalism. He decided to make the so-called MacArthur draft with his staff, and this was completed in one week. This draft included the first two of MacArthur's principles, protection of the people's rights, a Parliament with one House, the power of constitutional review for the courts of justice, democratization of finance and protection of local self government.
 Why did G.H.Q want to hurry in reforming the constitution?It was because the Far East Commission had the final authority over the new constitution of Japan and some of its member countries were critical of the Tenno. Therefore the United States wanted to present them with a fait accomli.
 The Japanese government persistently resisted the MacArthur Draft. For example, the government insisted that the Imperial House Law could not be amended by the Diet, but this attempt was in vain. The government insisted on the existence of a House of Nobles, but G.H.Q suggested a compromise in having a upper house whose members were democratically elected.
 The new constitution was sanctioned and promulgated by the Tenno after consultation with the Privy Council and decision of the Imperial Diet in accordance with Article 73 of the Meiji Constitution.
 In this way the new constitution was urged on Japan by external pressure, which used the ideas of Western European democracy and international pacifism, although the Japanese ruling class resisted the new born political system. Indeed, it is important to know that the masses did not necessarily oppose the new system. In fact it is reported that a relatively large proportion of the people supported the symbolization of the Tenno just after the end of the War.

3.5 The Principles of The Showa Constitution

(a) As I have briefly shown, the new constitution has completely different principles from the Meiji Constitution. When we look at textbooks for junior high school students, (1) the sovereignty of the people, (2) protection of people's human rights and (3) renunciation of war are explained as the three fundamental principles of the new constitution.
 Still, generally speaking, every jurist emphasises respect for the individual as the most important principle in the Constitution of Japan (Article 13, "All the people shall be respected as individuals"). At the same time we can find the words "life", "liberty" and "the pursuit of happiness" in the same article. These are derived from the words of John Locke and of Thomas Jefferson (in the American Declaration of Independence).
 The constitution appears to adopt five fundamental principles in order to realize respect for individuals. They are Liberalism, Democracy, Welfare, Equality and Pacifism, and are embodied in human rights and political institutions, both of which have been considered as the two biggest elements in any constitution (for Example, "every community in which a society of rights and separation of powers is not provided for needs a constitution" ? Article 16 of the French revolutionary Declaration of the Rights of Man). (b) The protection of human rights is the purpose of the constitution. "Human rights" means that human beings have rights simply because they are human beings, since human beings must have existed even before the state was established. This means that the constitution follows the Western tradition of natural rights. Rights against the state, for example, freedom of speech (Article 21), freedom of religion (Article 20), academic freedom (Article 23) and the right to own or to hold property (Article 29) are protected as natural rights. The constitution also has articles about rights through the state, for example, the right of existence (Article 25), the right to receive an education (Article 26) and labour rights (Articles 27,28). Therefore the constitution is considered to contain the idea of the Welfare State.
 This condition caused a change in the concept of equality. The state is required to interfere in private relations in order to realize substantial equality between rich people and poor people ("equality of condition", which is a different concept from "equality of opportunity"). Substantial equality becomes the reason why economic freedoms have a relatively large possibility of being limited, and also the reason for The Double Standard. The Double Standard is a principle which requires a stricter standard by which to review constitutionality in the limitation of spiritual freedoms in comparison with limiting economic freedoms. (c) The political system can be defined as based on the principle of protecting human rights. The characteristic thing in the political system under the Showa Constitution would be the new power to review the constitutionality of laws or policies. As the result, the constitution can be evaluated as having the idea of out-and-out "rule of law".
 Rule of law is defined as the principle which is the opposite of "rule of men" and requires that all the powers of the state are restricted by just of right laws. It requires (1) due process of law, (2) recognition of the supremacy of the constitution, (3) protection of individual human rights and (4) the significance of the role of the courts. The Showa Constitution has articles on (1) due process (Article 31), (2) supreme law (Chapter 10), (3) protection of individual human rights (Chapter 3) and (4) the power to review constitutionality in courts of justice (Article 81).
 There fore, none of the political powers, not even the legislature, can violate just laws. This is the main difference from "rule by law", under which all law had to be obeyed and could not be reviewed. Also, human rights do not now have any reservations except according to the principle of "Public Welfare" (Articles 12,13 and 22:1, 29:2).

4. The Penal Code And The code of Criminal Procedure

4.1 The Background of The Two Codes

(a) A penal code (or criminal code) can be defined as a law which deals with crime and punishment. As with other laws, the Penal Code is composed of requirements and effects. In this case, crimes are the requirements and punishments are the effects. For example in Japan, if someone commits a murder, he or she will be punished by the death penalty, imprisonment with forced labour for life or imprisonment with forced labour for more than tree years (Article 199).
 When someone is accused of a crime, he or she will not be punished without due process. This is an example of protection under the constitution, as I have shown in the previous chapter ("Rule of Law", Article 31 of the Constitution of Japan).
 When someone is sentenced to a punishment, it is necessary to recognize the facts and apply the code to them. The procedure is carried out in the courts of justice. The Code of Criminal Procedure deals with this process.
 Hence, the penal Code is called a "criminal substantive law" and the Code of Criminal Procedure is called a "criminal procedural law". (b) The Japanese penal codes were influenced by Chinese norms until the Meiji Restoration, and they were used to realize military society and military criminal laws, especially through the Kujigata-Osadamegaki. It is surprising to know that Kujigata-Osadamegaki had general articles about competence, intention, negligence and so on.
 The Western European notion of a penal code was introduced after the Meiji Restoration in 1880, through what is called the Old Penal Code. It was written under the supervision of Gustave Emile Boissonade (1825-1910) who was hired from France by the Meiji government. Therefore, the code was strongly affected by the French penal tradition, especially the Napoleonic Penal Code. It contained the idea of enlightened liberalism for citizens.
 After that, the New Penal Code was established under the influence of German criminal theory in 1907, and this code has been valid until today, although some articles were abolished because of the principles of the new constitution. The characteristics of this code are that the criminal model is simple and the statutory penalties are wide. For example, the crime of murder was divided into strategic murder, murder by poison and so on, in the Old Code. But the New Penal Code brought these into one article and established the wide statutory penalties which I mentioned above. This is the result of study of the theoretical ammendment of liberalism in the late nineteenth century.
 In modern criminal theory, generally speaking, the "classical school" and the "modern school" have provided the two main traditions. The classical school contains the idea of modern rationalism, assuming an abstract rational man who has free will, and basing responsibility on moral blame. Punishment is the harm which is given as response to the crime. On the other hand, the modern school denies or does not find importance in free will and concentrates not on conduct but on types of personality which are dangerous in society. Punishment is therefore education or treatment in order to resocialize the criminal. The modern school first appeared in the late nineteenth century, after people began to realize that the classical school was invalid for certain crimes, especially repeated offences and the increase in juvenile crimes caused by economic and social confusion as a result of the Industrial Revolution.
 The New Penal Code was imported form Germany in this period, therefore the requirements (crimes) and effects (punishments) are widely cast and the judges came to have a large area of discretion. However, as I shall show later, judges are relatively obedient to classical criminal theory in exercising their competence.
 In this way, the Penal Code is mainly affected by the European continental penal codes, especially the German codes. (c) The first Code of Criminal Procedure in Japan was also influenced by Gustave Emile Boissonade and therefore by the Napoleonic Code (in the so-called Chizai Ho of 1880). After the Meiji constitution was enacted (in 1890) the Japanese legal system came to be strongly affected by Germany, and what we now call the Old Code of Criminal Procedure (the so-called Taisho Code of Criminal Procedure) was enacted in 1922. It was evaluated as relatively liberal in comparison with the first code.
 However, a new code came into effect, under the influence of United States, after World WarII. The Japanese government wanted to strengthen the power of the public prosecutor and judicial police officers, but the attempt appeared to be incompatible with the principles of the new constitution. Therefore more than ten conferences were carried out between the Japanese government and the American government, and some recommendations were provided form the American side. It is considered that the articles about interrogation of the suspect, the principle of indictment, the listing of charges and the hearsay rule are the results of these conferences.
 According to the orthodox explanation of the history of criminal procedure, modern criminal procedure be the French Revolution. On the other hand, it is explained that in England the state did not have such strong power and the defendant's rights had been protected, for example the right to remain silent was maintained throughout the feudal period. Prosecution was evaluated as a process by which the prosecutor's assertions are shown to be right in front of judges. On the other hand, this idea was modified in the continental countries, especially France and Germany. Prosecution was evaluated as a process by which judges themselves pursue the Old Code to the common law practice of the Anglo-American theories.

4.2 The Principles of the Penal Code  

 What is a crime? With what elements does a crime come into Existence? This is the problem of criminal theory. According to the Japanese popular view, a crime is defined as a conduct which fulfils the constituent elements, is illegal and liable. When we think of a murder, for example, to take a person's life fulfils the constituent element of Article 199 in the Penal Code. Hence a criminal is going to be punished as a murderer. However, if the criminal has a justification such as self-defence or other grounds which bar liability, for example he or she does not have mental competence, he or she must not be punished as a criminal.
 In criminal theory, various elements are examined from the general to the concrete, from the objective to the subjective. This is generally explained as being because the application of criminal codes to the facts by judges should not be mistaken or misused. Therefore to find a crime in the Penal Code is the first operation in criminal adjudication.
 Why must a crime be found in the written codes? This is the problem of principle of the legality of crimes and punishment. The Principle of Legality can be defined as a principle which requires that there is no crime without statute and there is no punishment without statute (nullum crimen sine lege) . This principle first appeared in the textbook of Paul Anselm von.Fenerbach(1775-1833). But, we can find its origin in the Magna Carta promulgated by King John in 1215 and its development in the petition of Rights of 1628, the Bill of Rights of 1689 and in the legal tradition of the United States of America. Further, France also took up the same principle, and its purport has been reconfirmed in the human rights declarations. In this way, this idea has come to be included in the constitutions and penal codes of the European countries.
 This principle explains that people must be informed of crimes and the reason why a criminal can be punished is, not that the criminal could not stop committing the crime, but that he or she decided to commit it by his own free will. Therefore the principle contains the traditions of the classical school and of liberalism.
 However, the Principle of Legality lost its importance because of the rise of socialism. In other words, because of the social confusion resulting from the Industrial Revolution, people began to think that the classical optimistic idea was invalid for contradictions in capitalistic societies. Therefore liberalism began to be limited, for example the Soviet Penal Code of 1926 and the Nazi amendment of the German Peal Code embodied this idea.
 On the contrary, the principle of legality was resurrected after World War II. The German Constitution (Basic Law) of 1949 has a general article about this principle. The Soviet Union also had the same kind of article. The Universal Declaration of Human Rights loudly proclaimed this principle too in 1948.
 This principle can be understood as having three aspects. There is no punishment, it means, without (1) a statute in advance (nulla poena sine lege praevia), (2) a written statute (nulla poena sine lege scripta), and (3) evident statute (nulla poena sine lege stricta). The derivation of each principle means that (1) punishment cannot be retroactive, (2) the penal code excludes customary law, and (3) analogy in interpretation is prohibited in the penal code.
 The Old Penal Code had articles about this principle, but the New Penal Code does not have such articles. However, this is because the constitution itself has clear articles (Article 31, 73 and 39). Therefore Japanese jurists also think of the Principle of Legality as one of the most important principles in criminal theory.

4.3 The principles of The Code of Criminal Procedure  

(a) The purpose of the Code of Criminal Procedure is to apply and realise the criminal substantial law. This purpose is considered as the neutral and ultimate purpose of the code.
 How is the code to realise this purpose? This is the problem of the substantial purpose of the code, and the answer is indicated in Article 1 of the code, that is, to discover the truth while protecting the fundamental rights of the accused and other people.
 Indeed, there can be two ways of thinking about this problem. If we put greater weight on the discovery of the truth, criminals must be punished, even if someone is punished by mistake. If we put greater weight on the protection of fundamental rights, we must not punish the innocent person even if someone else may escape punishment. It would be better, of course, if there were no mistakes, but the human race is apt to make mistakes, therefore we have to choose one or other of these approaches.
 Article 1 does not clearly prescribe which is more important. However, the substantial protection of fundamental human rights through the due process of law gives us a hint that the second approach is more in keeping with the principles of the Constitution. Therefore he popular view follows the second assumption. (b) In this way, it is the fundamental idea of criminal procedure to recognise the facts without any mistakes, according to due process.  From this aspect, the next two principles follow. First is the principle of presumed innocence, which is defined as the principle to decide for innocence when the judge cannot decide guilt for certain. The Code of Criminal Procedure has an article on this principle, Article 336, and this principle means that innocence is the general rule.
 Second is the principle of judging by using proofs. It was not until after the Civil Revolutions, strictly speaking, that judgements were achieved by using proofs. Although the code of Criminal Procedure simply declares the principle in Article 317, the article is interpreted to follow the mainstream European theory. (c) Then how is the code going to realise the discovery of the truth and protection of fundamental rights? This is the problem of who should take the initiative in the conduct of the criminal suit. One idea asserts that the judges should take the initiative, another idea asserts that the persons concerned - the public prosecutor and the accused - should take the initiative.
 Which is correct must be examined according to the purpose of the discovery of the truth and the protection of fundamental rights (due process). In order to realise the discovery of the truth, it will be convenient to set up a battle between the two concerned persons (the public prosecutor and the accused) who have the closest interests and to make the judge observe their offence and defence. In order to realise due process, the accused must be treated as a substantive power in the suit, the accused must be treated as a substantive power in the suit, not as an object of the examination. Therefore most jurists believe that the Code of Criminal Procedure contains the second idea the so-called principle of the persons concerned. In fact, the code gives two main competences - the decision in the suit (Article 312:1) and the selection of the proofs (Article 298:1) - to the persons concerned, although the code has opposite articles at the stage of search.

5. The Civil Code And The Commercial Code  

5.1 The Background of The Two Codes  

(a) A civil code is usually defined as a general code of private laws, while a commercial code is a typical example of a special code, which deals with traders and commercial transactions.
Japan did not have a well ordered legal system before the Meiji Restoration, and it was one of the main reasons why Japan had to conclude the unequal treaties with U.S. and the European powers. Therefore, making a modern legal system became an urgent task for the government at that time. Shinpei Eto was chosen as chief of the Seido Torishirabe-kyoku (Institution Examination Bureau), and he tried to translate the French Civil Code but failed. Boissonade, a Professor of the University of Paris, was invited to Japan by the government, and he drafted the first Japanese Civil Code, modelled on the French Civil Code. Some scholars were obliged to help and make him hurry up by the government.
 The draft had a lot of articles which went against Japanese customs, and the legal system itself was not completed. Therefore, there arose a sharply critical response to the Code insisting that the draft was nothing but a word-for-word translation and denied the Japanese ie seido (family system). As a result, the Old Civil Code was never brought into effect.
 The Meiji government ordered Chikashige Hozumi, Masaaki Tomii and Kenjiro Ume to draft the what is called New Civil Code in 1893. At that time, a German first draft had been announced, so they referred to this draft, and the formalities were very similar to the Germandraft, which is the so-called Pandekten. The draft included real rights and claims as property law and relatives and inheritance as family law. This civil code has been fundamentally valid until today. However, the sections on relatives and inheritance have completely changed their principles according to the new constitution which includes freedom and equality. (b) A commercial code can be defined as a special code which mainly deals with enterprises. Enterprises play very important roles in various fields, for example production, distribution, custody, transport and insurance. The more complicated economic life becomes, the more new types of enterprises are conceived. In such a situation it is impossible to write all the legal relations into the Civil Code. It is here that the Commercial Code comes into operation.
 The Japanese Commercial Code has four volumes, on companies, commercial tradition and maritime commerce and insurance. There are some other laws, for example the Bills of Exchange Law or the Cheques Law, which deal with relations among enterprises. Still, companies, especially limited liability companies, have become the biggest and most important kind of enterprise.
 The origin of company law can be found in the concept of Commenda contracts. This means that a capitalist can trust his capital to a trader and make the trader do business and earn some benefits from it. This kind of contract can be found even in ancient Greece and Rome, but the form came to be widely used in the Mediterranean world from the tenth century.
 Commenda contracts affected family co-operation, for example co-successors of a father's trade, and the concept of societas was born in Italy and Germany in the feudal period. This requires the equal contribution and capital participation of capitalist and trader.
 On the contrary, however, this reflects again the concept of the Commenda contract. Commenda contracts came to consist of accommandita, who appears as a trader, and participatio, who conceals himself as a capitalist. These are the origins of General Partnership and Undisclosed Association.

5.2 The Principles of The Civil Code  

(a) As I mentioned before, a civil code is defined as a general code, which deals with relations between citizens and citizens, not those between the state and citizens. The legal appraisal of activities between citizens can be divided into three factors:(1) appraisal with respect to relationship between persons (owners of rights), (2) appraisal with respect to the subject matters of various rights, and (3) appraisal of legal relations to be effected.
 Legal relations in private law are framed as relations between rights and duties in various social environments which are deemed legally significant. Each person, whether a natural person or legal person, is regarded as the principal of a legal relation, or legal personality. A legal personality bears a subjective qualification which is called a Capacity to Hold Rights. In this way, the Principle of Equality in the Capacity to Hold Rights is the leading principle in handling factor (1).
 All matters existing in the world are able to be the subject matters of rights. These are broken down into several categories according to the ways the rights are exercised. The first category is labelled "corporeal things" (Article 85); the second "persons", dealt with separately from things, since persons have will; the third "intangible things", which are neither persons nor corporeal things. Capitalistic society is based on transactions of products and labour as commodities. Accordingly, private rights are considered to control, directly or indirectly, the things of the natural world. In this way, the Principle of the Absoluteness of the Right to Ownership is evaluated as the leading principle in factor (2).
 In private law, a juristic requirement (a specific fact) brings about a juristic effect (a change in private rights). The juristic requirement, which performs an important function in modern law since it is dominated by the doctrine of self-government, is a juristic act. A juristic requirement is composed of several (elementary) juristic facts. A juristic act is a juristic requirement, the elements of which are declaration of intentions. For it to take effect, the law will render assistance. While some juristic activities, for example, juristic requirement bringing about juristic effects, are not composed of declaration of intentions, a juristic act, which is a juristic requirement consisting of declaration of intentions, is the most important under the doctorine of self-government. In this way, the Principle of Self-Government can be evaluated as the leading principle of factor (3). It includes the Principle of Freedom in forming Juristic Acts on the positive side and the Principle of Liability by Negligence (or Principle of Self-Responsibility). (b) As I have shown, freedom and equality, which are the ideas of civil society, are reflected in several principles; Equality in the Capacity to Hold Rights, Self-Government, and the Absoluteness of Ownership Rights. Still these principles are adjusted to fit two more legal requirements.
 The first is the realization of substantial equality, which is also included as the most important principle in the Showa Constitution. In order to realize substantial equality, three principles were inserted into Article 1. They are (1) the Principle of Public Welfare, (2) the Principle of Faith and Trust, and (3) the Prohibition of Abuse of Rights. This aspect is called "socialization of the Civil Code".
 The second is safety in the transaction. For instance, a buyer in acting bona fide can get its purchase, even if the seller does not have the title to sell it. This good faith acquisition (Article 192) is a typical example of the adjustment. This aspect is called "commercialization of the Civil Code".

5.3 The principles of The commercial Code   

(a) I have written a short history of company law, but limited liability corporations have a more important role now. A corporation is an artificial being created to carry out business on a large scale by gathering capital form a wide field. It is, therefore, generally required that a large number of persons be participants and owners of a corporation. "Stock" and "indirect and limited liability" are the two characteristics of a corporation needed to meet the above requirements. These two characteristics establish the fundamental idea in the structure of a corporation. (b) A share (or stock) is an owner's interest in the form of a proportionate ownership interest in a corporation.
 Let's assume that Person A owns land, Person B owns machinery and Person C owns money. These three persons want to establish a corporation. The structure of a corporation is convenient, because it can form its own assets by owning rights and incurring duties in its own assets by owning rights and incurring duties in its own name. A shareholder's status is considered to be the transformation of the ownership of actual property in relation to the corporation. The liability of each shareholder is limited to the value at which he has taken his own shares (Article 200:1).
 A shareholder has no liability to the creditors' rights (indirect liability). His liability is limited only to the said value (limited liability). The public can make investments without anxiety, since it is guaranteed by law that they shall not be liable for more than the said value.
 Since no shareholder has liability directly to the creditors of the corporation, the creditors can levy only against properties of the corporation. The "capital", which is a certain amount of value provided bylaw, must remain in the corporation, to protect the creditor's rights. The following are three principles concerning capital. (1) Property equivalent to the value of capital must be actually contributed to the corporation (principle of the fullness of capital). (2) The said property must be actually maintained in the corporation (principle of the maintenance of capital). (3) The capital value, once established, may not be arbitrarily decreased (principle of invariability of the capital).

6. Conclusion  

 As I have shown in this essay, the Japanese legal system is composed of various elements, and each major European country's legal system has contributed some tendency. Maybe we can say that the most characteristic thing in the Japanese legal system is that it does not have its own special ideas.
 However, generally speaking, the Japanese government tried to introduce the French legal system but it was not succesful in the Meiji era. The reason is not clear today, but perhaps it would have been too radical for the Meiji government. After that the Meiji government found that the Prussian legal system was very convenient for Japan and the government. It was the fittest legal system for the "Late-Comer" capitalist countries, in contrast with Britain, France and the United States of America. After War・, the legal system of the United States came to affect the Japanese legal system. This brought the legal thory which is supported by the idea of the welfare state. Still, it is important to confirm again here that the idea of welfare does not deny liberalism, but rather promotes liberalism.
 The Japanese are said to be apt to forget the importance of liberalism or even not know the concept of civil rights, because they were gained mainly by external pressure. I do not know exactly if this is true or not now. However, the existence of gaps between ideas and reality cannot become a reason to support the assumption, because every legal system has this kind of gap.
 I would be happy if I could examine the uniqueness of the Japanese attitude toward its legal system in the near future.

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