Professor Dr. Gábor Hamza - Codification of Private Law in Japan
1. In the aftermath of the Restoration of the Meiji dynasty in 1868 the legal system of Japan underwent far reaching substantial reform. The highly reputed French Professor of Roman law and civil law at the Sorbonne University in Paris, Gustave Emile Boissonade de Fontarabie (1825–1910) taught law in Japan after 1873 and presented Roman law as the basis of the French Code civil. His lectures on comparative law were based on Roman law.
From 1870 onwards, various committees had worked on different drafts of a Japanese civil code. Boissonade was assumed the charge to draft the civil code in 1880. He completed most of the draft civil code consisting of five books by 1886. The draft prepared by him was patterned mainly after the French Civil Code and the Italian Civil Code of 1865. The remaining sections i.e. not prepared by Boissonade, dealing with the law of inheritance and family law, were drafted later, in 1887, by two French-trained Japanese lawyers, Shirō Isobe (1851–1923) and Toshizō Kumano (1854–1899). In 1888 the Ministry of Justice revised the Isobe-Kumano Draft to give support to the samurai family tradition of an authoritarian headship and primogeniture.
The Draft of Japanese Civil Code (Projet de code civil pour l’Empire du Japon, accompagné d’un commentaire) prepared mainly by Boissonade was promulgated in 1890 and should have put into force three years later, in 1893. Dispute arose among legal experts from 1889 to 1892 over the nation’s first modern code of civil law. Promulgated in 1890, the “Old Civil Code” (Kyū Mimpō) had not been implemented because of strong criticism from a number of legal experts, and in 1898 it was replaced by the “New Civil Code” (Shin Mimpō). The controversy focused on the French style and inspiration of the code. Most of its critics came from those who had been trained in England whereas most of its supporters got legal training in France.
2. It is worth mentioning that in 1892 the Diet passed a law postponing the Civil Code (and a large part of the Commercial Code) until the end of 1896. The government reluctantly appointed a Codes Revision Committee (Hōten Chōsakai), among whose members the adherents of the postponement had increasing influence. Therefore a large scale revision of the Civil Code became inevitable. The new Civil Code, completed in 1898 after a second postponement, was closer to German law than to French law, both in structure and in content.
The Japanese Civil Code of 1898 was based partly on the Code Boissonade with the exception of the law of persons regulated in the General Part (Allgemeiner Teil) and in the book relating to the family law and in the book on the law of succession (law of inheritance).
Among the five books that compose the Civil Code in effect to this day, the first three were promulgated in 1896 and consist of General Provisions (General Part), followed by the Law of Things including property and the Law of Obligations. The book on Family Law and the book on the Law of Succession were promulgated two years later in 1898.
3. Boissonade’s draft was heavily criticized both by Japanese lawyers who were adherents of the English common law and those who wanted to maintain in the Japanese Civil Code substantial parts of the institutions of the traditional Japanese law. This dispute reminded to some extent to the Kodifikationsstreit (“dispute regarding codification”) taking place in Germany at the beginning of the 19th century between Anton Friedrich Justus Thibaut (1772–1840) and Friedrich Carl von Savigny (1779–1861). A new draft committee consisting of Nobushige Hozumi (1855–1926) adherent of the German Historical School of Law (Historische Rechtsschule), Masaakira Tomii (1858–1935) who was also scholar of Roman law and Kenjiro Ume (1860–1910) was commissioned with the task of compiling the civil code.
The committee drew upon the First Draft (Erster Entwurf) of the German BGB of 1887 prepared primarily by Bernhard Windscheid (1817–1892). This explains why the second Japanese civil code is characterised predominantly by the pandectist legal thinking (Pandektenwissenschaft or Pandektistik) both in structure and terminology Three years later a new commission was set up with the task of elaborating a new code with more emphasis on Japanese legal traditions. The commission relied mostly on Windscheid's first draft of the BGB from 1887, so the Japanese Civil Code in force from 1898 followed the system of Pandects (Pandektensytem) rooted in Roman law traditions. The institutions dealt with in the General Part and in connection with the law of things and the law of obligations are based fundamentally on Roman law and on the German Pandectist School. Only family law and the law of succession differ from Roman law to a certain extent.
4. The structure of the Japanese Civil Code follows essentially that of the Pandectist system. As a result it has a General Part (Allgemeiner Teil). Differences from Roman law are numerous mainly in the part relating to family law more precisely in the part of “relatives” and in the field of the law of succession (law of inheritance) where a number of institutions reflect the influence of centuries-old Japanese legal traditions.
After World War II, the family law and the law of succession (law of inheritance) underwent substantial changes according to the modifications due to the new Constitution of 1947. About three hundred articles of the Civil Code were modified as of January 1st, 1948.
5. Parallel to the civil law related codification, the German legal adviser in Japan, Hermann Roesler (1834–1894) had drafted the Commercial Code. The draft prepared by Roesler – professor of administrative law and commercial law in Rostock – was strongly taken into consideration. Hermann Roesler stayed between 1878 and 1893 in Japan as a consultant of the Japanese Government. It is worth mentioning that Roesler played also an important role in the elaboration of the Japanese (Meiji) Constitution of 1889. The most committed advocate of the pandectist concept of the Japanese commercial code was the renowned Japanese legal scholar Jogi Matsumoto (1877–1954).
Despite public controversy, both codes i.e. the civil code and the commercial code were promulgated in 1890. As soon as the first Diet (national assembly) convened, a two-year postponement of the Commercial Code was voted by large majorities in both houses i.e. Senate (Sangi-in) and Lower House (Shugi-in) of the Diet (Parliament, in Japanese Kokkai) – in compliance with present-day terminology. Encouraged by this action, a member of the “postponement faction” (enkiha), Yatsuka Hozumi (1860–1912), published an article entitled Mimpō idete chūkō horobu (If the Civil Code Comes in, Loyalty and Filial Piety Will Go) in the journal of Tōkyō Hōgakuin, a law school (now Chūō University) that taught only English law (common law). This was, in fact, a gross misrepresentation of the sections of the code dealing with family and inheritance as they stood after revision. A rival private law school, Meiji Hōritsu Gakkō (now Meiji University), which taught predominantly French law, was the stronghold of the “quick enforcement faction” (dankōha).
6. The Civil Code, being a product of modern liberalism, is founded on the principles of freedom and equality, and acknowledges absolute private property rights and freedom of contract. However, as Japanese economy developed, issues emerged that could not be resolved under the principles of the Code, resulting in increasing inequalities. After World War I, problems in areas such as housing and the increasing size of enterprises i.e. companies developed to the point that the Code’s provisions for rental relations and labour-management relations, respectively, became inadequate. Consequently, legislation such as the Leased Land Law, the Leased House Law, and the Labour Standards Law were enacted. In the area of mortgages, the Code became also insufficient, and the Law for the Hypothecization of Factory Property (1905), the Trust Law (1922), and the Enterprise Security Law (1958) were thus enacted. The influence of the US legal system had growing importance in particular in the field of commercial law related institutions. The concept of trust was adopted in the field of commercial law already in 1922 by virtue of the Trust Law i.e. between the two World Wars.
7. Family law was formed around the household system of prior to the Meiji Period. However, the post-World War II Constitution of Japan promulgated in 1947 took the concepts of respect for the individual and the basic equality of the sexes as primary tenets, and major amendments to the inheritance and domestic relations chapters thus became necessary. The old household system was abolished. Two new influential provisions established that private rights defer to the public good and recognized the equality of men and women. During the 1970s, a re-examination of the property system for married couples and the system of the law of inheritance was carried out by the Ministry of Justice. The large-scale reform of the law of inheritance took place at the beginning of 1981.
8. It deserves mentioning that the Japanese Penal Code, in force since 1882, was also mainly patterned after French law. Gustave Emile Boissonade de Fontarabie was the substantial, “chief” architect of the Penal Code of 1882.