Law in Japan

HISTORY OF LAW IN JAPAN SINCE 1868
HANDBOOK OF ORIENTAL STUDIES

HANDBUCH DER ORIENTALISTIK
SECTION FIVE
JAPAN
edited by
M. BLUM · R. KERSTEN · M.F. LOW
VOLUME TWELVE
HISTORY OF LAW IN JAPAN SINCE 1868

HISTORY OF LAW
IN JAPAN SINCE 1868
EDITED BY
WILHELM RÖHL
BRILL
LEIDEN • BOSTON
2005
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CONTENTS
Prefatory Notice .......................................................................... vii
Chapter One: Generalities (Wilhelm Röhl ) ................................ 1

1.1 Periods of Development ................................................ 1
1.2 The Scope of Japanese Law ........................................ 11
1.3 Types of Rules and Promulgation .............................. 16
1.4 Foreign Influences ........................................................ 23
Chapter Two: Public Law (Wilhelm Röhl) ................................ 29

2.1 Constitutional Law ........................................................ 29
2.2 Administrative Law ...................................................... 96
Chapter Three: Civil Code ...................................................... 166

3.1 General Provision (Ronald Frank) .................................. 166
3.2 Property Law—Real Rights (Hans Peter Marutschke) .... 205
3.3 Law of Obligations (Ronald Frank) ................................ 227
3.4 Family Law (Petra Schmidt) ............................................ 262
3.5 Law of Succession (Petra Schmidt) .................................. 305
Chapter Four: Commercial and Corporate Law in Japan

(Harald Baum/Eiji Takahashi ) .................................................. 330
4.1 Introduction .................................................................. 330
4.2 The Early Years (1868–1899) ...................................... 335
4.3 Rise and Fall (1900–1945) ............................................ 362
4.4 Reconstruction and Economic Miracle (1946–1980s) 381
4.5 The Structural Crisis of the 1990s—Some
Afterthoughts .................................................................. 399
Chapter Five: Intellectual Property and Anti-Trust ................ 402

5.0 Literature (General) ...................................................... 402
5.1 Inventive Activity, Intellectual Property, and
Industrial Policy (Christopher Heath) ................................ 403
5.2 Patent Law (Christopher Heath) ...................................... 423
5.3 Utility Model Law (Christopher Heath) .......................... 443
5.4 Design Law (Peter Ganea) .............................................. 452
vi contents
5.5 Trade Mark Law (Christopher Heath) ............................ 466

5.6 Unfair Competition Law (Christopher Heath) ................ 483
5.7 Copyright Law (Peter Ganea) .......................................... 500
5.8 Anti-Trust Law (Christopher Heath) ................................ 523
Chapter Six: Labour Law (Hans Peter Marutschke) .................... 544

6.1 Pre World War II Development ................................ 544
6.2 Labour Legislation & Development after WW II ...... 554
Chapter Seven: Social Law (Wilhelm Röhl ) .............................. 570

7.1 A Short Historical Reminiscence ................................ 570
7.2 Social Security/Insurance Law .................................... 572
7.3 Social Welfare Law ...................................................... 601
Chapter Eight: Penal Law (Karl-Friedrich Lenz) ........................ 607
Chapter Nine: Procedural Law ................................................ 627

9.1 Administrative Litigation and Administrative
Procedure Law (Lorenz Ködderitzsch) .............................. 627
9.2 Law of Civil Procedure (Wilhelm Röhl ) ........................ 655
9.3 Law of Criminal Procedure (Petra Schmidt ) .................. 681
9.4 The Courts of Law
Appendix: Execution of Penalty (Wilhelm Röhl ) .......... 711
Chapter Ten: Legal Education and Legal Profession

(Wilhelm Röhl ) .......................................................................... 770
10.1 Legal Education .......................................................... 770
10.2 The Judge .................................................................... 782
10.3 The Public Prosecutor ................................................ 789
10.4 The Lawyer ................................................................ 800
10.5 Notes on the Staff of the Ministry of Justice .......... 823
Index .......................................................................................... 829

PREFATORY NOTICE
This book is not the work of a single author or a continuously coop-

erating team. Each chapter or section is the contribution of a jurist
from the German-speaking region1 who is fairly acquainted with
Japanese law. By profession, some of them are engaged in scientific
research, others in juridical business. Each author is responsible for
his or her individual contribution.
The authors describe the development of the Japanese law, refer-
ring to separate branches, from the beginning of modern times which
started when the Shogunate declined and a State comparable to
western nations took the first steps in the late sixties of the 19th cen-
tury. The descriptions continue the book “A History of Law in Japan
Until 1868” by Carl Steenstrup, published in Handbuch der Orien-
talistik (Handbook of Oriental Studies) in 1991. Also in our book
a glimpse at earlier conditions will be made occasionally in order
that the reader’s understanding of the changes might be made easier.
The question is at what stage does a historical description of law
which verges on the present state of affairs actually come to an end.
The authors were not unanimous in their opinion. In principle, the
idea was not to produce a textbook or reference book on the law
in force today, but instead to describe the road towards the laws of
today. A mass of literature on current Japanese law has been pub-
lished, and there one may find explanations of the legislative pro-
cedure, the reasons for a new law and its effect as well as the attitude
of the Japanese to contemporary law.
If we would choose a motto for this book a remark of Confucius
(Analects, Book 1, Chapter XI) which reads
ONKO CHISHIN
in Japanese and means ‘research into the past assists us to under-
stand the future’ could be considered suitable.
1
Prof. Dr. Eiji Takahashi had a part in chapter “Commercial and Corporate
Law in Japan”.
CHAPTER ONE
GENERALITIES
Wilhelm Röhl
1.1 Periods of Development
The exact starting point of the Meiji restoration and the circumstances
connected with the introduction of new political and social conditions
is much disputed, with various arguments. Historians assume that the
idea of a reform originated
– in 1853: first arrival of the US commodore, Matthew Perry,
who presented a message from the president of the United States of
America demanding to open up Japan and establish trade relations
(S. Hattori),
– in 1841: plans to stabilize the regime and promote the econ-
omy were intended to remedy the unsound state of affairs.1 The
plans failed but revealed the predicament of the system, and that
the final decline of the bakufu could not be stopped—consequently,
a thorough reformation was inevitable (S. Tòyama),
– in the 1830s: the climax of the rising of reformers in Osaka
and other parts of Japan (K. Inoue),
– in 1837: the riot of H. Òshio, a scholar and police-court mag-
istrate in Osaka who endeavoured to help the poor and was angered
by the indifference of the city authorities; the riot, instigated by him-
self and his friends, was the most important event during the risings
in the 1830s (H. Horie and T. Ishii).
The end of the Meiji restoration’s period is also controversially argued:
– in 1890: opening of the diet (Hattori),
– in 1877: rebellion of Takamori Saigò of Kagoshima (Satsuma),
a famous and loyal soldier and statesman, who in 1873 as a state
councillor together with other politicians had favoured a war against
Korea, then retired to Satsuma where he founded a private school
1
See G. Sansom, A History of Japan 1615–1867, pp. 207–227 [221–227] (1964).
2 generalities
to which the youth of south-west Kyushu (mostly of samurai pedigree)

flocked in great number. The government suspected him of prepar-
ing a riot which actually broke out in 1877. His troops were defeated
by the government army (in the so-called South-West War (seinan
sensò )), and this rebellion was the last warlike conflict in a series of
actions against the new order (Tòyama),
– in 1873: reform of the land tax which modernized the legal
relations with respect to real estate. It made the land value the basis
of taxation instead of the amount of production, ordered the tax to
be paid in money instead of in kind, and thereby contributed to the
paving of the road to capitalism (Inoue),
– in 1884: Chichibu incident. Uprising of farmers in the Chichibu
district (Saitama prefecture) who were distressed by debts and a
slump.2 They were supported by the Liberal Party3 and well orga-
nized, demanding the reduction of land tax, the village expenses to
be halved, opposition to conscription, and the establishment of a
diet. Their attacks on district bureaus, police stations, and wealthy
people were quelled by the military. This event was one of the spec-
tacular final uprisings4 under the influence of the liberal-democratic
movement ( jiyù minken undò ) which pervaded the decade from the
mid-seventies. In autumn 1884 the Jiyùtò, the first democratic party
in Japan, was dissolved. At the same time the dominant group of
the liberal-democratic movement broke up (Horie),
– in 1889: enactment of the Imperial Constitution (Ishii).
Whichever of these theses is reasonable does not seem to be of major
significance. Generally speaking, in the first half of the Meiji period
domestic development is characterized by gradually superseding
feudalistic structures, building up a centralized empire in the spirit
of absolutism, heading for a constitutional government, persistently
establishing a capitalistic system, and preventing disruption of the
new order. From the point of view of foreign affairs the predominant
concern was to come to terms with foreign powers and to achieve
2
The deflation policy of the Minister of Finance, M. Matsukata, resulted in
low prices with unchanged tax burden.
3
The first Jiyùtò (1881–1884) was the core of the liberal-democratic movement.
It advocated a radical liberalism of French style.
4
Other uprisings happened in the Fukushima prefecture (1882) and the Gunma-,
Niigata-, Ibaraki- and Nagano prefectures (1883–1884), mainly caused by the oppres-
sion of the Jiyùtò by the authorities.
periods of development 3
the revision of the treaties which the bakufu had concluded with the
USA and some European states.
In the second half of the Meiji era (1890–1912) the pre-eminent
affairs were the consolidation of capitalism and the push towards
industrialization. The opening of the diet in November 1890 met
with a long advocated demand from political groups, and a strong
motive which caused former uprisings to be thereby settled. The
government intensified the realization of the motto ‘national pros-
perity and powerful armed forces’ ( fukoku kyòhei ) by promoting indus-
try. The victorious wars against China (1894–1895) and Russia (1905)
demonstrated that military strength had been accomplished. In 1899
new treaties with foreign countries on an equal level became effective.
Japan gained international influence.
Experts of Japanese legal history prefer their own division of peri-
ods of development; the opinions differ greatly. For example:
– Y. Suzuki, Hòritsushi (History of Law [from the Meiji period]),
p. 20 et seq., (1960) argues as follows: (i) From the return to the
Imperial regime (1867) to the abolition of clans and the establishment
of prefectures (1871); transition from the feudalistic system to the
unified state. (ii) As a result of that, a swing to creating a uniform,
centralized, absolute monarchy, and then to an enlightened monarchic
state. This was demanded by the people involved in the liberal-
democratic movement (1874–1889) who opposed the autocracy of the
clan faction. The call for modern industry and revision of the unequal
treaties required the adjustment of a new legal order. (iii) Enactment
of the Constitution and thereby founding a constitutional system in
the disguise of a centralized power but actually an absolutist one.
(iv) From the first diet (1890) to the end of the Meiji era (1912); con-
tinuance of the authority of the clan faction and bureaucracy—more
or less modified, but on the other hand development of capitalism;
formation of the class of industrial capitalists. Gradual maturing of
political parties which, however, existed only in compromise or com-
bination with the strength of the clan faction and were not yet able
to realize democracy; they were supplements to the military and the
bureaucracy. The strife between the authorities and the people con-
tinued. Japan, after having won two wars and acquired colonies,
became an empire and developed into a strong imperial state of a
semi-feudal and militaristic nature. The class difference intensified,
and workers’ and socialist movements were oppressed. (v) Proceeding
4 generalities
to the time after Meiji: the Taishò (1912–1926) and early Shòwa
periods (1926–1931) were marked by a rapid move towards new
riches as a consequence of the First World War; influence of cur-
rent international attitudes, expansion of democratic views; workers’
and farmers’ movements; organization of socialism and communism.
All that coincided with the mightiness of monopolistic, plutocratic
circles (zaibatsu) looking to establish their predominance in politics—
however, under the stability of the tennò system the power of the
military and the bureaucracy could not easily be broken. The exer-
cise of this power and that of the monopolists and land-owners, par-
ticularly since they joined together, concurred, based upon the relative
increase of the monopolists’ might, with the state oppression of the
workers’ and farmers’ movement and the advance of foreign con-
nections. The world panic of 1931, especially the inconsistency of
Japanese monopolistic capitalism, caused a deep national crisis. People
got into serious difficulties and became dissatisfied with the corrup-
tion of the established political parties and the inefficiency of the
powerless parliamentary policy. The government’s antidote was the
strict limitation of freedom of opinion and the thorough repression
of socialist and communist trends. Opposition to this state of affairs
was raised by young officers and cadets of the navy and army, and
a drift from nationalists to national socialists became evident. The
clash of political goals and actions resulted in the disintegration of
the masses, armaments industry, growing prosperity of monopolistic
capitalism, and finally defeat in the Pacific War, loss of the colonies,
forfeiture of foreign investments, destruction of production equip-
ment, and many temporary but vital blows. The Constitution of
3 May 1947 opened a new epoch.
– R. Ishii, Meiji bunkashi, 2: hòseihen (Cultural History of the Meiji
Era, vol. 2: Legislation), pp. 9–16 (1954); translated by W.J. Chambliss,
Japanese Legislation in the Meiji Era, pp. 13–23 (1958), divided the
Meiji legislation into three phases. With regard to the relationship
of these three phases, the first (1868–1881) forms a traditional link
between modern feudal law and contemporary law; the second phase
(1882–1898), during which the modern codes became effective, rep-
resents a preliminary modernization of law; and the third phase
(1899–1912) is occupied generally with the enforcement of the codes
without any further amendment. In the last phase the codes were
applied by the letter of the law, the outcome of which did not always
meet the true meaning of the borrowed foreign law or the indige-
nous legal understanding.
– The four editors (N. Ukai, M. Fukushima, T. Kawashima,

K. Tsuji) of the Kòza Nihon kindaihò hattatsushi (Lectures on the History
of the Development of Modern Japanese Law), vol. 2 (1958), pp.
313 [325]–334, explained in a round-table discussion the subdivision
of periods taken as a basis for the lectures:
1st period: preparation of the legal system, 1868–1888,
2nd period: establishment of the legal system, 1889–1914,
3rd period: rearrangement of the legal system, 1915–1931,
4th period: collapse of the legal system, 1932–1945.
The first period was characterized by the disorganization of the bakufu
and clan feudalistic structure, the creation of the tennò system, and
a centralized ruling bureaucracy. It was a time of transition which
also had an impact on the legal order. There was a mixture of old-
fashioned law which did not separate public from private law, and
modern law of western style. While the contents of the laws showed
several trials and errors, the appropriate items gradually emerged
step by step. In this period the Japanese engaged many foreign advi-
sors who lent a hand in legislative and administrative work, which
was directed towards the pressing aim of achieving revision of the
unequal treaties concluded in the fifties and sixties.
To characterize the second period as the ‘establishment’ of the
legal system means that the new system had to find its position in
the conventional Japanese legal habits to which the people were
accustomed.5 Laws on modern conditions requiring a formal law,
such as banking, the stock exchange, or a mortgage on a factory were
problem-free. But the law of Japanese origin was, at that time, of a
certain diffuseness, and it was not a matter of course that the west-
ern law, characterized by specificity, would get along with the Japanese
counterpart. There were striking examples of legislative opposition6
to western notions which, on Japan’s road towards full recognition
as a modern state according to occidental ideas, had found their
5
There is much literature about the topic. To mention some basic books in a
western language worthy of intensive study: e.g. A.T. von Mehren (ed.), Law in
Japan, The Legal Order in a Changing Society (1963); G. Rahn, Rechtsdenken
und Rechtsauffassung in Japan (Legal Thinking and Legal Opinion in Japan) (1990);
H. Coing (ed.), Die Japanisierung des westlichen Rechts (The Japanization of Western
Law) (1990); H. Menkhaus (ed.), Das Japanische im japanischen Recht ( Japanese
Elements in Japanese Law) (1994).
6
E.g. Constitution—Imperial Rescript on Education (1890), slight extension of
the suffrage—Peace Police Law (1900), freedom of assembly (within the scope of
the laws, art. 29 of the Constitution)—restriction under the Peace Police Law.
6 generalities
way into the Japanese law system. The new legal institutions hardly
meant a thing to the people. The final result of the ‘establishment’
was that the introduction of foreign elements, although outwardly
accomplished, made the system complicated and put jurists and lay-
men into a state of uncertainty.7
The exciting third period began with the economic boom during
World War I and the subsequent collapse. An enormous price increase,
especially with regard to rice as the basic food,8 caused riots, and
the living conditions of the people got worse, further intensified by
the disastrous earthquake of September 1923. Claims and rights (kenri)
of the individual, provided for in the Civil Code, had not actually
become general knowledge, and the government, urged on by the
public unrest, enacted new legislation for the most crucial areas of
the community: laws on tenancy and land tenure as well as on medi-
ation in the case of an argument between landlord and tenant, and
also in mercantile matters and labour disputes.9 Moreover, in the
field of labour law social signals were made: Factory Law (enforced
from 1916), Health Insurance Law (enforced from 1926/7), Law on
the Minimum Age of Industrial Workers of 1923.
In the area of public law the right to vote was extended to males
of at least 25 years of age without, as previously, the requirement of
a certain level of taxation. Under this new Law for the Election of
Members of the House of Representatives (Shùgi’in gi’in senkyohò, orig-
inally of 1890) of 5 May 1925, enforced from the next election on
20 February 1928, the percentage of voters increased to 19,44.10 In
obvious connection with this increase, the Law for Maintenance of
the Public Peace (Chian iji hò) of 22 April 1925, enforced from 12
May 1925, enlarged in 1928, and amended in 1941, made sure that
the people would not err from the right path: under art. 1 the Law
was directed at persons who, aiming to change the national polity
(kokutai ) or to disown private property, organize an association or
7
Due to the peculiar attitude to written law, the Japanese had and have difficulties
adopting the strict observance of a clearly specified regulation that is meant to be
compelling. In short: “The rigid obedience to the laws is not the uppermost goal in
life”, Z. Kitagawa, Rezeption und Fortbildung des europäischen Zivilrechts in Japan
(Reception and Development of the European Civil Law in Japan), p. 160 (1970).
8
1 shò (1,8 litre) cost 12 sen before the war and 50 sen in August 1918.
9
G. Rahn (note 5), pp. 130–158, calls the 1920s the ‘Social Period’ and also
evaluates the turn of the judicature and the jurisprudence with consideration for
the social reality.
10
M. Hasegawa, Shòwa kenpòshi (History of the Showa Constitution), p. 26 (1961).
join such an association in knowledge of the circumstances. That

meant a struggle against communists, but the Law was used to sup-
press the freedom of opinion, speech, and political activity of the
common people.
Those laws were the result of an increase in consideration of the

demands of the people, some of whom formed clubs or groups, or
joined political parties in order to pursue their requests, made them
generally known, and caused the authorities to act.
In view of the said state of affairs the term ‘rearrangement’ indi-
cates that—after about forty years of forming a new legal system by
bringing in western juridical thoughts and methods—the characteristic
of the third period is the government’s focussing on the social condi-
tions of the people, partly settling them, but also preventing anti-
government disturbances or even sentiments.
‘Collapse’ of the legal system in the fourth period means that the
political events stopped the beginnings of a democratic development,
as had appeared in the Taishò (‘Taishò Democracy’) and the early
Shòwa years. The influence of political parties had become strong,
and since 11 June 1924 (first Katò cabinet) party cabinets had con-
tinuously been in power.11 The old motto ‘national prosperity and
powerful armed forces’ (see above) had not lost its effectiveness as
the device of the government, and in the late twenties the predominant
political parties were keenly guided by the capitalist monopolists
(zaibatsu) and the military. The interest in social improvement decreased,
and the interconnection between government, zaibatsu, and some
high-ranking militarists resulted in financial scandals, bribes, and
favouritism of particular capitalist concerns. Dissatisfaction grew
steadily among large groups of the people: workers, farmers, small
businessmen, subordinate officials, and many young men who had
been educated under nationalist ideology. Specifically, junior officers and
cadets of the armed forces disliked the state of affairs. The nationalist
and militarist sentiments, stimulated also by jingoism in foreign coun-
tries (Italy, Germany), the memory of the Russian revolution, and
the distress caused by the world economic crisis gave vent to acts of
11
The prime minister came from the strongest party in the House of Representatives.
Until May 1932 the two great parties ‘[Constitutional-]Party of Political Friends,
[Rikken-]Seiyùkai’, and ‘[Constitutional-]Democratic Party [Rikken-]Minseitò’ provided
the prime minister alternately.
8 generalities
violence: on 15 March 1928 and 16 April 1929 large-scale perse-

cutions happened. In view of the fierce confusion in China the
Japanese Kantò (Kwantung) army was on stand-by to protect Japan’s
involvement in Manchuria, in the course of which Japanese officers
murdered the supreme commander there, Zhang Zuo-lin, on 4 June
1928, and the tension between Japan and China culminated in the
explosion of a bomb on the rails of the South-Manchurian Railway
near Mukden on 18 September 1931. The Kantò army at once
occupied the whole of Manchuria. This ‘Manchurian incident’ was
the start of the war against China which lasted fifteen years. While
the Kantò army could hardly be kept under control, the military at
home begrudged the result of the London naval armament limitation
conference of 193012 and, just like the nationalists, held the party
system responsible for the difficulties Japan had to endure as regards
domestic and foreign affairs. After Prime Minister Hamaguchi had
been assaulted by a nationalist in 1930 and died of his wounds (1931),
members of the ultra-nationalist ‘blood brotherhood club’ (ketsumeidan)
murdered a former minister (of the Democratic Party), and a manager
of the Mitsui zaibatsu (1932), Prime Minister Inukai of the Party of
Political Friends, was assassinated on 15 May 1932. The murderers
were young officers of the navy and army who, on that day, stormed
the headquarters of the said party, the Bank of Japan, the residences
of the lord keeper of the privy seal and other leading men, as well
as the Tokyo police headquarters. This event ended the party gov-
ernment, and from then on the militarists and sympathizing bureau-
crats formed, or had a hand in forming, whole nation cabinets which
remained in power until 1945. The development of legislation and
legal functioning was not unlike the circumstances in other totali-
tarian states. Public law was predominant; many laws and ordinances
concerned the preservation of the nationalistic attitude towards the
spirit of the time, the political direction, and the prescribed way of
life. After having experienced the unrest of the late Taishò- and early
Shòwa period the ‘whole-nation’ government aimed at strict disci-
pline of the people as an imperative regimen, particularly since the
nation was at war with China and—from 1941—the Pacific region.
The main worries were leftist ideas or actions and military readi-
ness. Accordingly, the regulations for domestic peace and order were
12
Japan had agreed to maintain its navy on a reduced level in relation to the
United States and Great Britain.
tightened: the Law for Maintenance of the Public Peace of 1925,

last amended in 1941; enactment of the Law for the Supervision of
Offences Involving Dangerous Thoughts (Shisòhan hogo kansatsu hò ) of
1936; enactment of the Law for the Special Control of Seditious
Papers (Fuon bunsho rinji torishimari hò ) of 1936, and the Law for the
Special Control of Speech, Publications, Assemblies, Societies and
the Like (Genron shuppan shùkai kessha tò rinji torishimari hò ) of 1941.
These laws further restricted the rights of the people, unsatisfacto-
rily granted as they were under the Constitution. The law most
severely intruding upon rights and liberties was the National General
Mobilization Law (Kokka sòdòin hò ) of 1 April 1938, amended in 1939
and 1941, art. 1 of which read: “General mobilization under this
law denotes that, in times of war (including war-like events), in order
to attain the objective of national defence the direction of manpower
and material resources shall be enforced so that all powers of the
country will most effectively be manifested”. The Law enabled the
government to regulate various fields such as labour, financing, mate-
rials, prices, enterprises, energy, traffic, and trade. Thereupon the
diet was no longer involved in matters of concern for the common
people and their daily life. The clause “in times of war” did not at
any time discontinue the application of the Law since there was war
(with China) when it was enacted, and war never ceased until the
end of the Pacific War in 1945. When the Law was repealed in
December 1945 the country had been governed for seven years by
all-powerful militarists and bureaucrats who issued orders and
ordinances that intruded also on multifarious private conditions. But
in that nationalist period the authorities laid stress on traditional
Japanese moral concepts in which individuals firmly believed openly,
or at least in their hearts. The principles were loyalty to the emperor,
love of the fatherland, filial piety (this being one with loyalty to the
emperor as the head of the great national family), and harmony
inwardly and outwardly. Under these creeds the people could be
easily guided and put into a patriotic mood. Actually, the mental
state of the nation was a sign of the aversion to becoming carried
away by the western way of life.
Jurists educated in a climate with a strong influence of foreign
patterns could fairly speak of the collapse of the legal system if that
meant the breakdown caused by war, the danger of war, or the turn
to politically defined order. However, on the other hand, genuine
notions found their feet again. This, in turn, stood, in the view of
10 generalities
the victorious powers, in the way of democratizing Japan which was

their objective after the end of the Pacific War.13 The first steps of
the ‘reorientation’14 were the change of the position of the tennò, the
ban on the previous definition of kokutai,15 enactment of the Labour
Union Law (Ròdò kumiai hò ) of 1945 and the Labour Relations
Adjustment Law (Ròdò kankei chòsei hò ) of 1946, agrarian reform, and
dissolution of the zaibatsu and militaristic organizations.
The enforcement of the Constitution of Japan (3 May 1947) made,
in its wake, the revision of many laws necessary. In every field of law
US-American ideas found their way into the Japanese system. Around
1950, as an effect of world politics (confrontation USA-Soviet Union,
Korean war) the politics of the occupying power regarding Japan
began to change its chief objective from democratic improvement to
reestablishment of the political and economic stability. This ‘reverse
course’ was thought to be of use to American interests in a danger-
ous situation. In particular, the demand of General MacArthur,
Supreme Commander of the occupying power, in spite of art. IX
of the Constitution of Japan to set up police reserves and even the
Japanese rearmament, meant in the eyes of many Japanese a selfish
break with high peace ideals, and created the suspicion that Japan
would be used as an American military base. In any case, the occupy-
ing power had made itself unpopular when the occupation ended
in 1952 following the San Francisco Peace Treaty of 1951/2 and
the Mutual Security Act (MSA).16 From then on Japan took steps
to gradually review the legal system regarding issues less well-suited
to Japanese legal conception.
13
Potsdam Declaration of 26 July 1945.
14
The Supreme Commander for the Allied Powers (SCAP) did not issue laws
and ordinances but advised and controlled the Japanese legislator.
15
The official document ‘Kokutai no hongi’ (The true meaning of the national
polity) of 1937 was an essential in education. The document was forbidden in
December 1945, and the Fundamental Law of Education (Kyòiku kihonhò) of 1947
replaced the Imperial Rescript on Education (Kyòiku chokugo) of 1890.
16
MSA means originally the Mutual Security Act between Japan and the USA
of 1954, but is also used as a collective term for a set of treaties on cooperation;
S. Tabata, Nichibei sògo bòei enjo kyòtei ( Japanese-American Mutual Security Act), in:
Nihon kindaishi jiten (Dictionary of Modern Japanese History), ed. by Kyoto University,
p. 454 (1958).
the scope of japanese law 11
1.2 The Scope of Japanese Law
I. At the time of the resignation of the last Shogun and restoration

of the Imperial regime the Japanese territory extended to the four
main islands Honshù, Kyùshù, Shikoku, and Hokkaidò; offshore islands
and islets were integrated step by step. This area was the homeland
(naichi ), which became a unit of the administrative system.
Hokkaido lagged behind since it had not yet been completely col-
onized. At first it was administered by the Colonization Bureau
(kaitakushi ) which was dissolved in 1882 and succeeded by a prefec-
tural administration put under the direct control of the cabinet from
1886. In 1890 it came to be treated in much the same way as the
other prefectures controlled by the Home Ministry. The first law court
was set up at Hakodate on 8 January 1874, its circuit being lim-
ited to the south-west tip of Hokkaido covering the regions nearest
to Honshu: Toshima, Yamagoshi, Kutò, Futoro, Sedana, Okujiri,
Shimamaki, Suttsu, Utasutsu, and Isoya.2 From October 1881 there
existed the Hakodate High Court with the same limited circuit;3 the
High Court was moved to Sapporo on 15 December 1921.4 District
courts were established at Sapporo (1882), Asahigawa (1916), and
Nemuro (1882, from 1916 at Kushiro). Together with the remain-
ing Hakodate court and several local courts Hokkaido was sufficiently
provided with lawcourts.
II. Overseas regions ( gaichi ) became subject to Japanese control
from 1895: Taiwan (Formosa), Karafuto (South Saghalin), Chòsen (Korea),
Kantò-shù (Kuandung), and Nanyò-guntò (South Sea Islands); these were
different judicial areas.
1. Taiwan (and Hòko-guntò = the Pescadore Islands) were ceded to
Japan under the peace treaty with China of 17 April 1895, concluded
at Shimonoseki after a war of about eight months. Japan set up the
‘Office of the Governor-General of Taiwan’ (Taiwan sòtokufu) at Taipeh.
Attached to it was a lawcourt (Taiwan sòtokufu hòin) for civil, crimi-
nal, and non-contentious cases; there were two instances equivalent
1
Ryòsuke Ishii, Meiji bunkashi, 2, hòseihen (Cultural History of the Meiji Era, vol.
2, Legal System), 1954, p. 17 et seqq. Adapted translation by William J. Chambliss,
Japanese Legislation in the Meiji Era, 1958, p. 27 et seqq.
2
Shihò enkakushi (A History of Justice), 1939, compiled by the Ministry of Justice
and edited by the Hòsòkai ( Jurists’ Association), p. 24.
3
Shihò enkakushi (note 2), at 67–68.
4
Loc. cit. (note 2) at 814.
12 generalities
to district and high court.5 The high court had two divisions: retrial
division (3 judges), and revision division (5 judges); actually, a case
could run through three instances. A problem as to the laws to be
applied in Taiwan arose when a relevant bill was deliberated in the
diet in 1896. Under this bill an imperial ordinance would determine
which Japanese laws were to be in force in Taiwan; additionally,
the Governor-General was authorized to enact regulations as laws
(ritsurei ) within the area of his responsibility. The point of the dispute
was whether the Japanese Constitution, which was unanimously
regarded as operating in Taiwan, covered such a far-reaching autho-
rization, or the law-making power of the diet was infringed. The diet
passed the Bill, and it was enforced as Law no. 63 in March 1896. It
was planned to be in force for three years but was renewed three
times and finally superseded by Law no. 31 of 11 April 1906. In effect
it reiterated the former rules ordering that “the whole or part of a
law” which should be operative in Taiwan was to be determined by
imperial ordinance and that the Governor-General could by ordinance
regulate “matters in need of law”; these ordinances might not violate
the laws or relevant Imperial ordinances. The effect of Law no. 31
was scheduled for four years but twice renewed and made permanent
by the Law Concerning Statutes to be Applied in Taiwan (Taiwan
ni shikò subeki hòrei ni kansuru hòritsu) of 15 March 1921. This law pro-
vided for specific rules, should they be required under particular cir-
cumstances in Taiwan. Details were regulated by Imperial Order no.
407 of 18 September 1922, thereafter amended several times.
Japanese judges and public prosecutors were transferred to Taiwan
in order to dispense justice.
2. On 5 September 1905 Japan and Russia signed the peace-treaty
of Portsmouth ending the war between them which had been declared
in February 1904. Under the treaty Japan gained power over addi-
tional regions: South Saghalin, Korea, and Kuandung.
(i) The Russian South Saghalin (in Japanese: Karafuto) was ceded
to Japan6 that regarded it as an external territory and an indepen-
5
For a brief description of the court system in the gaichi see Hajime Kaneko,
Saibanhò (Law of Judicature), 1959, pp. 55–56.
6
South of the 50th degree N.lat. This region had been sparsely inhabited by
Japanese since the 18th century; Russians descended upon Saghalin in the early
19th century. The Japanese claimed ownership but there was no border between
them and the Russians; the actual situation was that both of them executed con-
trol. On 7 May 1875 Japan and Russia concluded a treaty by which the Kurile
dent legal zone since the laws and ordinances for the homeland could
not be applied there straight away. Japan set up the Karafuto Office
(Karafutochò) at Korsakoff ( Japanese name: Òdomari) as the administrative
authority, and at the end of March 1907 the Law Concerning Statutes
to be Applied in Karafuto (Karafuto ni shikò subeki hòrei ni kansuru hòritsu),
by which it was decreed that an Imperial ordinance was to deter-
mine those statutes as a whole or in part, was enacted. Special
Imperial ordinances would regulate the following matters: /a/ con-
cerning native inhabitants, /b/ concerning the competence of admin-
istrative bureaus or public offices, /c/ concerning judicial time limits,
/d/ concerning counsel, process attorneys, or successors to an action
who are selected or appointed by a court or presiding judge ex
officio. These special provisions made allowances for the mixed pop-
ulation, the remoteness of the region, and the dispersed ethnic groups.
In the following years many Imperial ordinances relating to this
system were issued. A new ordinance of 3 May 1920, Special Usage
of Laws Operating in Karafuto (Karafuto shikò hòritsu tokurei) repealed
eight of them and—after numerous amendments—included 36 arti-
cles in 1942 by which the application of a large number of Japanese
laws was regulated in detail, in particular with regard to controlling
authorities, legal deadlines, exception of particular articles, and the
like. Worth mentioning is art. 1: “Civil matters of the natives of
Karafuto (except the Ainu) in which no outsider is involved will be
dealt with according to established custom. Legal proceedings in the
above matters will follow the court’s expedience”.
Lawcourts were set up as in the homeland. A district court and
a local court were opened at Vladimirofka (renamed Toyohara by the
Japanese, now Juzno-Sachalinsk) and a local court at Maoka on
1 April 1907. A branch of the Vladimirofka local court was established
at Korsakoff in September of the same year.7 The circuit of the
Sapporo High Court was extended to include Karafuto.
(ii) The name ‘Korea’ derives from Kòrai, one of the medieval
states in that region. When a unified state had been founded in 1392
it assumed Chaoxian, Japanese: Chôsen, as its name. However, the
Japanese called it Kankoku.8 After many centuries of Chinese dominance,
Islands were ceded by Russia to Japan in exchange for southern Saghalin that
remained Russian territory until 1905 and became Russian again in 1945.
7
Shihò enkakushi (note 2), at 236, 241.
8
Kan = ancient name of separate regions of Korea, later of all Korea.
14 generalities
China acknowledged Korea’s independence when the Chinese-Japanese

war was brought to an end.9 Great powers competed for influence
in Korea; in particular Russia and Japan enforced their interests.
Under art. 2 of the Treaty of Portsmouth10 Russia conceded Japan’s
political, military, and economic prerogative in Korea. On 17
November 1905 Japan and Korea concluded a treaty11 under which
Korea became a Japanese protectorate. Japan installed a ‘Resident
General’ (tòkan) and ‘Residents’ (rijikan).12 That the Residents were
authorized to dispense justice was enacted by Law no. 56 of 25 June
1906; appeals against their decisions were adjudicated by the Court
of the Resident General (tòkanfu hòmuin). When Korea had been
annexed by Japan in August 191013 it was renamed Chòsen, which
became the official name instead of Kankoku. Japan set up the Office
of the Governor General (sòtokufu) as the highest regional authority
which replaced the Office of the Resident General. The term rijikan
remained as the denomination of the chief administrative official in
a district (dò).14 On 25 March 1911, a law similar to that for Taiwan
of April 1906 was promulgated: the Governor General was autho-
rized to issue ordinances, and the applicability of Japanese laws was
subject to imperial order. Already in October 1910 a court system
of three instances had been established: District Court (chihò hòin),
Court of Retrial ( fukushin hòin), and High Court (kòtò hòin). The courts
were attached to the Office of the Governor General.
(iii) The province of Kuandung (Kantò-shù) with the towns Port
Arthur (Ryojun), and Talien (Dairen) and their surroundings was Chinese
territory. China had leased it to Russia for 25 years in 1898. Russia
assigned the leasing rights to Japan with the consent of China under
the terms of the Treaty of Portsmouth.15 Japan set up the Office of
9
Art. 1 of the peace treaty concluded at Shimonoseki on 17 April 1895. Heibonsha
(ed.), Nihon shiryò shùsei (Collection of Materials for Japanese History), 1956, p. 529
no. 119.
10
Collection (note 9), at 539 no. 150.
11
Loc. cit. (note 10), p. 541 no. 158.
12
The text of the treaty notes the word ‘resident’, meaning ‘governor’ in Japanese
syllabary as an explanation of the Japanese terms.—For the ‘Office of the Resident
General’ (tòkanfu) see chapter ‘The Public Prosecutor’. The first Resident General
from December 1905 to June 1909 was the famous statesman Hirobumi Itò.
13
Text of the treaty in Collection (note 9), p. 542 no. 158.
14
Korea was divided up into 13 districts, Regulations Governing the Organization
of Local Authorities in Korea (Chòsen chihòkan kansei ).
15
In 1915, Japan and China agreed that the lease would run until 1997. At the
end of World War II the territory reverted to China.
the Resident-General of Kantò (Kantò sòtokufu) at Liaoyang (Ryòyò).

Soon afterwards, the Office was transferred to Port Arthur and
renamed Kantò totokufu (Office of the Governor General of Kantò).
The Governor-General was a military officer. In 1919 the Office was
dissolved, and two separate authorities were established: the Kantò
Department of Administration (kantòchò) the chief of which could be
a civilian, and the Kantò Military Headquarters (Kantò gunshireibu).
Thereby the Japanese Kantò army became independent of the civil
administration.
Under the Treaty of Portsmouth Japan also acquired the leasing
rights to the South Manchurian Railway with all its installations, branch
lines, and vast surrounding areas. The main line under Japanese
control ran from Changchun ( Japanese: Chòshun) to Port Arthur. On
7 December 1906, the South Manchurian Railway Company (Minami
Manshù tetsudò kaisha, abbr. Mantetsu), a state policy company, was
founded. It managed the railway business, kept many enterprises, and
played an important part in the region. Together with the Kantò
Department, the Kantò army, and the garrisons it formed the base
of Japan’s operations there. Since the public status of Kantò-shù
differed from that of Taiwan, South Saghalin, and Korea the Japanese
Constitution was not regarded as applicable, so that all matters
deferred by the Constitution to statute law were accepted as matters
to be dealt with by imperial ordinance. A district court (chihò hòin) and
a high court (kòtò hòin) were set up in 1908. They were attached to
the Office of the Governor-General and, later, the Kantò Department.
(iv) The former German colonies in the South Sea, north of the
equator, i.e. the Caroline (including Palai), Marioana, and Marshall
groups, became a mandate territory of Japan under the treaty of
Versailles (1919). Japan called the territory ‘South Sea Islands’ (Nanyò
guntò) and established a government (nanyòchò) on the island of Koror,
south of Palau, and branch offices in the other island groups. On
1 April 1922 a court of law (nanyòchò hòin) opened at Palau, and three
local courts were founded at Palau, Saipan and Ponape. The fact
that the Council of the League of Nations had given a mandate of
type C meant that Japan gained the authority to administrate the
territory, make laws, and declare Japanese laws applicable.17
16
South of Mukden.
17
K. Usui, Nanyò inin tòjichi (South Sea Mandated Territory), in T. Kawade (ed.),
Nihon rekishi daijiten (Great Dictionary of Japanese History), 1959, vol. 14, p. 181.
16 generalities
1.3 Types of Rules and Promulgation
It is an element of a modern legal system that laws and regulations

are classified and made public to all the population or at least the
affected persons, e.g. within the administration.
I. In pre-modern times, the Tokugawa bakufu and the bureaucracy,

as well as the domain offices, used quite a number of terms as head-
ings for their rules. Seemingly, it is not always clear whether the
term can be assigned to a particular kind of written rules or a specific
group can be derived from the use of a heading. Nevertheless, some
terms should be introduced here in order to show the variety of
legal directives and the difficulty in choosing the appropriate word
in translation.
1. Customary (unwritten) law was of great importance but it does
not tell us anything about denomination, classification, terms, and
the system of regulations set by the government or administrative
offices.
2. Written law consisted of authoritarian rules and judicial prece-
dents. In many cases a law was promulgated not in the form of a
code but of a single special law. These laws were occasionally col-
lected and compiled, and thus used as a code. There were official
collections as well as private ones. The most important official col-
lection was the Kujikata osadamegaki (Laws Given by the Shogunate
for Use in Litigation) of 1742. It was in two parts; the first included
81 legal documents of administrative and civil law, the second dealt
with judgements on penal and procedural law. Since there appeared
to be no attempt to frame a system according to the types of the
laws with regard to the headings, the titles did not show any order,
and the legal quality of the rules (law or administrative ordinance)
cannot properly be discussed under modern criteria such as parlia-
mentary procedure and enabling statutes.
Prior to the Meiji Restoration the different terms for written legal
rules can help to understand which authority had enacted the rules
and in which way they had been promulgated.
(i) Primary lawgivers1 were
a/ the Shogun and his functionaries. Very important laws were
promulgated in the Shogun’s name, or, upon his order, by a mem-
1
The common word for a law was hatto. In the early period of the Edo era it
types of rules and promulgation 17
ber of the Council of Elders (ròjù). Members of the Council of Elders

enacted laws directly in the form of a message ([o]kakitsuke)2 after
having acquired the knowledge of the Shogun’s decision. If neces-
sary, they issued a notification (tsùtatsu) to the area concerned or a
decree ( fure or [o] furegaki ) to the general public. A message which
was made known only to the government office or person(s) con-
cerned was called an ‘order’ (tasshi ).
b/ The rulers (daimyò ) of the feudal domains (han). There were
about 270 of them. Their independence from the bakufu was lim-
ited, but they could enact laws for their domain provided that they
did not contradict the rules fixed by the Shogun and his officials.
As the size of the domains varied the administrative organizations
were accordingly great or small. The Daimyo’s chief retainers con-
trolled the domain on his behalf and upon his orders. Legislature
and executive were not separated, therefore, regarding formality there
was no difference between laws, ordinances, decrees, orders, and
decisions. In some domains the number of official regulations was
immense: e.g. the rules given in the Okayama domain during the
Edo period were edited in two volumes of 781 and 1008 pages in
1959.3 Generally, the way of making law was similar to that of the
Shogunate.
c/ Other law-makers controlled particular circles, e.g. the emperor
for his court (supervised by the bakufu), village meetings, and guilds.
3. Usually, the government orders were intended to be publicized;
the words fure and tasshi mean ‘announcement, proclamation’ and as
verbs ‘to make known’. However, there were exceptions to the procla-
mation to all the people: the above mentioned tasshi or intentional
secrecy.4
appeared in the title of fundamental laws. Another general term for a law was okite.
Orders of an authority were often headed sadame (regulation), hence the name of
the above mentioned collection osadamegaki.—For the definition of terms see D.F.
Henderson, The Evolution of Tokugawa Law, in: Studies in the Institutional History
of Early Modern Japan, ed. by Hall and Jansen, 1968, pp. 215–220.
2
The honorific syllable ‘o’ was prefixed to emphasize that a high authority had
ordered it.
3
The Okayama han was one of the largest fiefs (G. Sansom, A History of Japan
1615–1867, 1964, p. 211). The collection of the regulations was attended to by
R. Ishii and edited by the Society for the Study of Clan Law, in the series Hanhòshù
(Collection of Clan Law).
4
K. Miura, Hòseishi no kenkyù (Study of the History of Law), 1924, p. 149 et seq.
18 generalities
The pre-Meiji authorities used various methods of promulgation,5

the main ways being via a chain of messengers, which differed from
region to region, and notice-boards.
(i) In Edo the laws and decrees of the government were handed
over to the town commissioners (machi bugyò; one each in northern
and southern Edo), who in turn passed them on to the town alder-
men (machi toshiyori ), who then forwarded them to the headmen
(nanushi ) of the blocks (groups of buildings) via the respective head-
man on duty that year. The nanushi had to inform the land- and
house-owners of his block of the contents of the law, and order them
to instruct their tenants.
(ii) Notice-boards (kòsatsu or takafuda or tatefuda) were wooden boards,
usually with a narrow roof, on a post erected at Nihonbashi (the
main bridge) and other well-known or crowded places in Edo, as
well as at certain spots on the major highways leading to Edo. Laws,
ordinances, decrees etc. were written on the board to announce them
to the public. Those who could not read were assisted by people
who could read, moreover, the regulations were transmitted orally
within the neighbourhood and other social groups. The same method
of promulgation was used in the country, towns and villages, also
for orders from the Daimyo. Instead of wooden notice-boards,
announcements written on paper and posted at administration build-
ings or wall-writings were often used.
(iii) Special means were used to transmit messages or orders to
temples and shrines since the controlling authority was not the town
commissioner but the temple and shrine commissioner ( jisha bugyò ),
and in matters for which the finance commissioner (kanjò bugyò ) was
responsible.
II. When the last Shogun resigned and the imperial reign was restored
the ancient daijòkan (formerly also read dajòkan), which had remained
extant through the centuries as the supreme council of the politi-
cally powerless emperor, was revived as the highest authority of
government.6
5
For details see Henderson (note 1), p. 216 et seq.
6
The dajòkan system remained in force until the establishment of the Cabinet
(naikaku) in 1885.
(i) In order to breathe new life into old expressions the government
and the administrative authorities used words which had been intro-
duced centuries ago and had grown uncommon in the Tokugawa era.
– Fukoku, which like fure means ‘proclaim, let know’, was the term
for a law issued by the dajòkan and directed at an administration
office or the common people. However, in the early Meiji years this
usage was not strictly adhered to; there were several examples of
different denominations or lawgivers.7 But in 1873 it was decreed
that from 4 May of that year onwards all orders of nationwide valid-
ity were to be issued in the name of the Head Minister (dajòdaijin),
and in February 1872 the numbering of legislative documents had
begun. Since the fukoku of the dajòkan were the most authoritative
acts of written law the Supreme Court occasionally called them hò
or hòritsu (law or a law), terms which were already in common usage
and became official in 1886. Special rules about the dates of enforce-
ment of the laws made sure that the people could get timely knowl-
edge of their contents.
– Tasshi (order) was, as before, an instruction addressed to an
administration office and officials. If the order was issued by the
dajòkan then it was called dajòkan tasshi. The chambers of the dajòkan,8
the ministries (shò), the Hokkaido Colonization Department (kaitakushi ),
and the prefectures were also empowered to issue tasshi and futatsu.9
– Futatsu (literally: to spread orders, promulgate them) were orders
directed to the common people, or the nobility, the samurai, or the
temples and shrines. Tasshi and futatsu were as binding as a law.
– Special words for provisions in the early penal laws10 were sei,
rei and shiki, the meaning of which was not clear. In March 1875
the Ministry of Justice explained them as follows: “Imperial edicts
are sei, official announcements of a chamber of the dajòkan or a min-
istry are rei, ordinances issued by a prefecture are shiki ”. But the
clause “In the case of a severe offence this shall be regarded as an
7
Kame’ichi Hosokawa, Nihon kindai hòseishi (A History of Modern Japanese Law),
1961, pp. 14, 15.
8
When the domains had been abolished and prefectures established on 29 August
1871, the dajòkan was reorganized into three chambers (in): Central Chamber (sei’in),
Right Chamber (u’in) and Left Chamber (sa’in) on 13 September 1871.
9
Orders of the prefectures were also called jòsoku (articles). If these concerned
the judicature they had to be collected and reported four times a year to the
Ministry of Justice and the High Courts.
10
Shinritsukòryò and Kaiteiritsurei, see chapter ‘Penal law’.
20 generalities
offence against sei, even when a chamber, a ministry, or the Hokkaido

Colonization Department had issued the order (rei); the relative grav-
ity of the offence must be decided on when the case comes to an
end” left the boundaries between the groups open.11
(ii) The method of promulgation of the laws and decrees by means
of notice-boards was continued, and a fukoku of 1868 aimed at pro-
viding a reliable announcement by ordering that writing which had
become illegible due to wind and rain had to be instantly renewed.
The pre-Meiji notice-boards were done away with everywhere in
April 1868, and the new government set up two kinds of notice-
boards: for lasting laws (sadame sansatsu) and for summaries of admin-
istrative orders or penal provisions (oboefuda). 12 Other ways of
promulgation were the distribution via messengers to local authori-
ties, and the posting of decrees and proclamations in front of district
courts or prefectural offices and residences of village heads. The
notice-boards were removed after a few years, and the whole sys-
tem of publication was planned to be replaced by promulgation in
the Official Gazette (kanpò) created in 1883. Because the announce-
ments reached the prefectures at different times, special clauses reg-
ulated the date of enforcement of the decrees and proclamations,
generally the seventh day following their arrival in each prefecture.
Publication in the Official Gazette meant that other ways of trans-
mission became unnecessary, and an order of the dajòkan of December
1885 ruled that the fukoku and futatsu were official when issued in
the Official Gazette.
III. On 22 December 1885 the dajòkan dissolved, and the cabinet

system was established. By an imperial edict of 26 February 1886 the
Formalities for Public Documents (kòbunshiki ) were enacted. The leg-
islative acts were called ‘law’ (hòritsu), ‘imperial edict’ (chokurei), ‘cab-
inet decree’ (kakurei ), ‘ministerial decree’ (shòrei). A law required the
consultation of the Senate ( genròin).13 Laws and imperial edicts were
drafted by the Cabinet or a minister who had to submit his draft
11
K. Hosokawa (note 7) at 19.
12
For details see K. Miura (note 4) at 152 et seq.; K. Hosokawa (note 7) at
13–14; R. Ishii, Meiji bunkashi, 2, Hòseihen (Cultural History of the Meiji Era, vol.
2: Legal System), 1954, p. 32 et seq., translated by W.J. Chambliss, Japanese
Legislation in the Meiji Era, 1958, p. 43 et seq.
13
This legislative council existed from 1875 to 1890. The parliament was opened
no sooner than in 1890.
to the Cabinet: the Prime Minister (naikaku sòridaijin) sent the drafts
to the Emperor and asked for his consent. Cabinet and ministerial
decrees were issued by the Prime Minister and the responsible minister.
Besides these, there were ordinances (meirei ) of all kinds. Laws and
ordinances had to be published in the Official Gazette, they became
effective seven days after the arrival of the Official Gazette at the
prefectural office. The district authorities were also empowered to
enact ordinances.
The formalities for Public Documents were amended and renamed
‘Law Concerning Forms of Promulgation’ (kòshikirei ) by an imperial
edict of 1 February 1907. It laid down the principle that legislative
acts were promulgated by the emperor and required the coun-
tersignature of the Prime Minister alone or jointly with the respon-
sible minister. The various laws, ordinances, and similar documents
were published in the Official Gazette. This procedure constituted
official announcement, and, generally, a law was to come into force
after the lapse of twenty days calculated from the day of its pro-
mulgation; this time limit had already been introduced by the Law
Governing the Application of Laws (hòrei) of 21 June 1898.
IV. (i) The new Constitution of Japan (Nihonkoku kenpò), in force from
3 May 1947, brought in the term ‘government ordinance’ (seirei ), to
be enacted by the Cabinet in order to implement the provisions of
the Constitution and the statutes; Constitution art. LXXIII para 6.
Unless authorized by statute the Cabinet may not assign duties or
impose limitations of rights or establish penal regulations; loc. cit.
and Cabinet Law art. 11. The government ordinance must be signed
by the responsible minister and the Prime Minister, it is promul-
gated by the emperor, Constitution arts. VII and LXXIV.
Other terms in the words of the Constitution are
– hòritsu (preamble, art. VII and passim) = a law, statute by par-
liament.
– meirei (arts. XVI, LXXXI, XCVIII) = an ordinance or order14
decreed by an executive agency. There are enforcement ordinances
and delegated ordinances. The above mentioned seirei is one form
of an ordinance; others are sòrifurei (ordinance of the Prime Minister’s
14
The official (American) English translation of meirei, given out by the secretariat
of the Cabinet, says ‘ordinance’ in arts. XVI and XCVIII, and ‘order’ in art. LXXXI.
22 generalities
office, hòmufurei (ordinance of the Cabinet’s bureau of legal affairs),

shòrei (ministerial ordinance), and gaikyoku kisoku (regulations decreed
by the head of an extra-ministerial office).15
– kisoku (arts. XVI, LVIII, LXXVII, LXXXI) = regulation or rule.16
– hòrei (preamble) = laws and ordinances.17 The meaning of this
collective term is also occasionally used for other orders: e.g. the
kisoku and official acts are included (art. LXXXI and its headline),
as well as the regulations established by the local public entities
( jòrei ),18 and Supreme Court rules.19 The usage is not definitely fixed.
– hòki = legal maxim. The Constitution uses this term only in the
compound saikò hòki = supreme law, art. XCVIII, to emphasize its
rank.
(ii) The Government Ordinance no. 4 of 3 May 1947 repealed
the Law Concerning Forms of Promulgation; the matter was not
regulated by a new separate law.
The rule of law demands that all laws and ordinances will be made
known to the public—except enactments concerning matters that
only have an influence in particular circles, e.g. ordinances of the
diet pertaining to meetings, proceedings, and internal discipline,
Constitution art. LVIII para 2. The promulgation of amendments
to the Constitution, laws, government ordinances, and treaties is an
act to be performed by the emperor, Constitution art. VII clause 1.
Other provisions about promulgation can be found in various laws
and ordinances, e.g. art. 16 para 2 of the National Public Service
Law (kokka kòmuin hò) of 1947: the regulations of the National Personnel
Authority ( jinji’in) must be promulgated in the Official Gazette.
Generally, ordinances are to be published. Under art. 16 para 2 of
the Local Autonomy Law (chihò jichi hò) of 1947 the same applies to
the regulations of the local public entities.
15
Committees and special departments attached to a ministry, e.g. the Committee
for the Inspection of Public Safety (kòan shinsa i’inkai ), and the Department for
Investigation of Public Safety (kòan chòsachò) at the Ministry of Justice; National
Government Organization Law (Kokka gyòsei soshiki hò) of 1948, arts. 3 para 3, 13,
and attached list no. 1.
16
The translation (note 14) says ‘regulation’ in arts. XVI and LXXXI, ‘rule’ in
arts. LVIII and LXXVII.
17
Translation (note 14).
18
T. Satò/S. Hayashi (ed.), Hòrei yògo jiten (Dictionary of Statutory Terms), 1959,
p. 665, headword hòrei.
19
Constitution art. LXXVII, Code of Criminal Procedure, art. 39 para 2.
foreign influences 23
1.4 Foreign Influences
Japan’s law system has experienced significant effects from foreign

institutions three times in its history. Chinese law was introduced in
the seventh and eighth centuries, continental European law in the Meiji
era, (Anglo-)American law in the 1920s and, to a greater extent, after
1945. Even if the literal translation of the foreign law was enacted
the adoption did not usually result in a lasting application in exact
accordance with the original meaning. The foreign law was ‘japanized’.
The old Chinese codes were brought into line with Japanese legal
understanding and its needs by way of amendments (kyaku) and statu-
tory instruments (shiki ). When the main western (especially German)
codes were received the Japanese legislator brought, more or less,
indigenous ideas into the laws; after a period of interpreting the new
law in accordance with the academic view of the scholars in the
country of origin, the jurists were also careful to consider the particular
Japanese attitude and brought any such features to bear in their per-
ception. The strong influence of American law was mitigated after
control by the occupying powers had ended in the early 1950s.
The course from the beginning of the Meiji period can be sum-
marized as follows:
On 6 April 1868 the emperor proclaimed: “Knowledge should be
sought throughout the world and thus the foundation of the Imperial
polity shall be strengthened”.1 This meant the definite end of the
seclusion of Japan which had been instituted by the bakufu about 230
years before. The search for knowledge throughout the world also
concerned the legal systems; this issue developed into a topic of major
importance inasmuch as that the ensuing share in world trade and the
effort to achieve revision of the unequal treaties which, unfavourably
for Japan, the bakufu had concluded with the United States and some
European governments, were top objectives of Japan’s policy.
There was a choice of three ways to create a modern legal system:
(i) to build up a new home-made system independently by them-
selves—that would take too much time, (ii) to introduce English-style
foreign law—a venture beyond hope because of the vast realm of
case law, (iii) to adopt European codified law—the only practicable
method for an approach to the reform. Consequently, the Japanese
1
The fifth article of the Charter Oath of Five Articles, see chapter ‘Constitutional
Law’ in this volume.
24 generalities
began to study the European codes in earnest. The object of study

was French law. Many jurists had a better command of the French
language than of other western tongues, and a modern code, the Code
Napoléon, existed in France and provided a suitable model.2 The ener-
getic Minister of Justice, Shinpei Etò (in office 1872–1873), ordered
an urgent translation of that code, and instructed the translator sim-
ply to replace the words ‘France’ and ‘French’ with ‘Japan’ and
‘Japanese’, and the result, regardless of translation errors, would be
enacted as Japanese law.3 Such a law never appeared, but French
law continued to be the focus of the consideration for a reform.
Japanese officials travelled abroad in order to study the foreign
systems, and foreign experts were invited to advise the authorities
regarding the creation of a new legal structure. Then, foreigners
were employed under contract with the responsible ministry.
On 9 November 1871 the Law School (Meihòryò) was set up within
the Ministry of Justice.4 In August 1872 Henri de Riverol of France
was engaged as a teacher, and in March 1874 the French jurists
Emile Gustave Boissonade de Fontarabie5 and Georges Bousquet were
also employed as experts in French law. Other French teachers and
an American lawyer followed.6 French law was the favourite of the
Ministry of Justice which, like other ministries,7 also consulted separate
foreign experts. There were men from England, the USA and Italy.
Boissonade dominated, and it was he, in his additional capacity as
an adviser to the government, who introduced principles of French
law into the first important new codes, the Penal Code and the Code
of Criminal Instruction, both of 1880. The Penal Code replaced the
previous new penal laws: the Provisional Penal Code of 1868,8 the
2
J.V. Feinerman, The Meiji Reception of Western Law, in H.E. Leser and
T. Isomura (ed.), Wege zum japanischen Recht (Roads to Japanese Law), pp.
95–105, (1992).
3
G. Rahn, Rechtsdenken und Rechtsauffassung in Japan (Legal Thinking and
Legal Opinion in Japan), p. 82, (1990).
4
See chapter ‘Legal Education’ in this volume.
5
Boissonade, in the government’s service from 1873 to 1895, was an adviser
with considerable influence in matters of legislation and held in high esteem.
6
See chapter ‘Legal Education’ in this volume. The dates were taken from the
Shihò enkakushi (A History of Justice), compiled by the Ministry of Justice and edited
by the Jurists’ Association in 1939.
7
Prior to the accomplishment of administrative centralization regional govern-
ments sought advice from foreigners, though apparently not on broad legislation but
on military and technical know-how.
8
It was modelled on the Japanese Yòrò-code (8th century), the Chinese codes of
Outline of the New Criminal Law of 1871,9 and the Amended Criminal
Regulations of 1873 as well as several other regulations to follow.
Similar to the Penal Code there were earlier legislative endeavours
to regulate criminal action.10 The influence of western ideas first
became noticeable concerning the application of torture which was,
under certain conditions, allowed in order to obtain the confession
of the suspect. Criticisms by Japanese jurists were strongly supported
by Boissonade, and finally the rule of evidence, art. 318 of the
Amended Criminal Regulations of 13 June 1873, was revised: the
original wording “the judgement of all crimes shall be based upon
a deposition” [= written confession] was altered to “the judgement
of all crimes shall be based on proof ”. That meant a change to the
principle of free conviction of the judge, and there was no longer a
reason for torture.
Boissonade’s engagement was not limited to penal law and criminal
procedure. He was asked to give advice to the government or to draw
up drafts concerning laws on the organization of the courts, the civil
code and the code of civil procedure (this draft was incomplete). He
also gave his view about the revision of the unequal treaties. Lecturing
at the Law School of the Ministry of Justice and the Meiji (Special)
Law School,11 Boissonade acquainted the students with the French
doctrine of natural law and civil liberties, his preferred subjects of
research.
While French law was the main source for legislative work of the
Ministry of Justice to modernize the legal system,12 Anglo-American
law became the favourite of Tokyo University. At both the univer-
sity and in the ministry,13 the aforementioned foreign areas of law
651 and 1397, the Japanese Code of One Hundred Articles (Kujikata osadamegaki
hyakkajò) of 1742, and the draft of a penal code prepared by officials of the Higo
domain in Kyùshù.
9
It was also formed on old Chinese and bakufu law without western influence
worth mentioning.
10
See P. Schmidt, chapter ‘Criminal Procedure’, in this volume. R. Ishii, Meiji
bunkashi, 2. hòseihen (Cultural History of the Meiji Era, vol. 2, Legal System), 1954,
pp. 257–270. Adapted translation by W.J. Chambliss, Japanese Legislation in the
Meiji Era, pp. 320–335, (1958).
11
Meiji (senmon) hòritsu gakkò, privately founded in 1881, predecessor of the Meiji
University (Meiji daigaku), orientated towards French law.
12
Even the Supreme Court (Daishin’in), established in April 1875, was modelled
on the French Cour de Cassation.
13
Among the topics of the judges examination, held by the Ministry of Justice from
1885, were English and French property law, civil procedure, law of contract, law
of evidence, excluding German law. See chapter ‘Legal Education’ in this volume.
26 generalities
and their tradition were not the only matters in the curriculum; the
university also offered lectures on French law. The attachment to a
foreign legal system was the consensus.
In the early years of the 1880s the government began to con-
centrate on German law, and the trend within the academic sphere
to study German law also became more widespread. The govern-
ment employed several German jurists as advisers whose duties
included drafting of laws.14 Penal law and the law of criminal pro-
cedure were Boissonade’s domain. The two codes governing these
areas were enforced from 1882. However, soon afterwards amend-
ments were contemplated, and the new Penal Code (keihò) of 1907
showed a remarkable influence of German law,15 and in 1922 the
new Code of Criminal Procedure also followed the German system.16
German advisers in the 1880s attended to other fields. The foremost
men were: H. Roesler, a former professor of Rostock university, was
the author of the first Japanese Commercial Code and became involved
in preparatory work for the constitution, and also lectured at the Tokyo
University; P. Mayet, an economist,17 dealt with postal organization,
insurance, and the savings bank system; A. Mosse, a judge, was
occupied in various branches of law, mainly in creating the regulations
for the administrative system of regional self-government; O. Rudorff, a
judge, drafted the Law for the Constitution of the Courts; H. Techow,
a judge, public prosecutor, and government official, was engaged in
the reform of the school system and also drafted the Code of Civil
Procedure; H. Mosthaf, a government official, was adviser to the
Ministry of Foreign Affairs. A few other jurists were hired.
14
Since the engagement of foreign advisers has frequently been described in gen-
eral and in detail, only a brief summary is given here. A selection of literature
regarding this topic is as follows: H. Jones, Live Machines. Hired Foreigners and
Meiji-Japan (1980). P.-C. Schenck, Der deutsche Anteil an der Gestaltung des
modernen japanischen Rechts- und Verfassungswesens (The German Contribution
to the Modern Japanese Legal and Constitutional System, (1997). J. Murakami,
Einführung in die Grundlagen des japanischen Rechts (Introduction to the Bases
of Japanese Law), (1974). K. Takayanagi; A Century of Innovation: The Development
of Japanese Law, 1868–1961, in A.T. von Mehren (ed.), Law in Japan, (1963).
Z. Kitagawa, Rezeption und Fortbildung des europäischen Zivilrechts in Japan
(Reception and Further Development of European Civil Law in Japan), (1970).
W. Röhl, Fremde Einflüsse im modernen japanischen Recht (Foreign Influences
in Modern Japanese Law), (1959).
15
The German Penal Code had been enacted in 1871.
16
For these two branches of law see Z.U. Tjong/P. Eubel (ed.), Das japanische
Rechtssystem (The Japanese Legal System), p. 210, and J. Herrmann, ibid., p. 257
(1971).
17
He had studied various subjects without taking his degree.
With the exception of Prof. Roesler, the above named persons

had been practising jurists in Germany. Their duties in the Japanese
service were also of a practical nature. Besides that, scientists of
jurisprudence from Europe and America gave lessons on western law
at educational establishments. The study of German law gained
increasing attention, especially after the Councillor of State H. Itò
returned from Europe where, commissioned by the tennò, he had
studied existing constitutions, particularly the Prussian constitution,
and had been advised by the famous professors R. von Gneist (Berlin)
and L. von Stein (Vienna) on constitutional law and detailed subjects.
Japanese professors of law studied in Germany, and German jurists
were invited to teach German law in Japan. Some of the above
mentioned practitioners may also be called teachers or instructors of
German law because their advice could sometimes necessitate regu-
lar lectures. However, when the official reformers finally decided to
accept German law18 as a guideline it was necessary for the relevant
tenets to be intensively studied. In addition to the research of Japanese
scientists in Germany, German experts were employed by Tokyo
University and the ‘School of the Society for German Science’ (Schule
des Vereins für deutsche Wissenschaften, doitsugaku kyòkai gakkò) to
lecture on Roman and German law. K. Rathgen (public law),
L. Löhnholm (civil law), U. Eggert (finance law), and H. Weipert
(civil law) at Tokyo University; and L. Löhnholm, G. Michaelis,
O. Nippold, and E. and F. Delbrück at the school of the said soci-
ety,19 were all well known figures in Japan.
The further development of Japanese civil law was strongly influenced
by German legal science, theories, dogmatics, and systematization.
This situation originated from the argument between the adherents
of the French and the English direction over the civil code. Finally,
the first three books of the new Civil Code (minpò) of 1898 were
modelled on the drafts of a German civil code with several items
added or modified based on other foreign regulations.20 Traditional
Japanese views were also taken into consideration. The family law
(book IV) and the law of succession (book V) together maintained
former native notions.
18
Prussian law was at the fore.
19
The best description of that school has been presented by Schenck (note 14).
Presidents of the school were famous Japanese dignitaries, and the Japanese gov-
ernment made financial contributions.
20
Preparatory research by the Japanese extended over more than thirty foreign
legal systems. Z. Kitagawa (note 14), p. 43.
28 generalities
In its entirety the Civil Code showed itself to be an eclectic law

with German law as the prevailing pattern. In order to thoroughly
understand that law academic teachers and professional users studied
German jurisprudence and applied the regulations in accordance with
the established interpretation thereof. This course did not go well
with indigenous Japanese legal thinking which, being concrete and
intuitive, competed with the abstract and discursive direction of the
German ‘Begriffsjurisprudenz’ (conceptional jurisprudence). Inevitably,
the juxtaposition of the two lines of thinking caused inconsistencies
in the judgement on civil cases. There were judges who applied the
law in strict accordance with the conceptional method—in this case the
real situation might be neglected, and the judgement left the parties
in the dark. Other judges based the judgement on the native way
of thinking and gave a pseudo-reason in compliance with the German
style—in this case the judgement would hardly be comprehensible.21
The German influence diminished due to the increasing consideration
of traditional features by Japanese jurists. Criticism of the predominance
of the conceptional jurisprudence began to grow towards the end of
the Meiji era, and after the defeat of Germany in World War I con-
tributed to a change of orientation: turning to ‘living law’ by taking
heed of the social actuality and finding the solution of legal actions
with a view to equity. The theory of free law ( jiyù hòron, the German
Freirechtslehre), the maturing sociology of law (hòshakaigaku), and the
Anglo-American case-method served as sources for the new trend.
The German way of applying the written law, seen as favouring
individualism, was pushed into the background but survived as the
framework of Japanese civil law. It continued to exist as a frame-
work during the nationalist period (1926–1945), which was charac-
terized by the recollection of original Japanese values and by giving
these values priority over all national affairs.
In the first years after the end of the Pacific War the democratic
reforms of the American occupying power also, as a matter of course,
affected the legal system. When the occupation ended in about 1950
the Japanese legislators gently set about examining the laws and har-
monizing the new law with traditional aspects of the Japanese way
of thinking. The diverse foreign influences, especially by French,
German, and Anglo-American law, have left very recognizable traces
up to the present time.
21
G. Rahn (note 3), pp. 114–129.
CHAPTER TWO
PUBLIC LAW
Wilhelm Röhl
2.1 Constitutional Law
Even if there is no written constitution the shape of a state can still

be defined. The actual situation of the reign, organization of the
government, its authority, and the rights and duties of its subjects
constitute the essence of a state. In this sense Japan had a consti-
tution before 1868, but the constituting elements changed with the
decline and final dissolution of the bakufu, to such a degree that
hardly anything of the former constitution could be maintained. The
not unanimously welcomed restoration of the Imperial regime was
accompanied by a rapidly growing demand for knowledge of the cir-
cumstances in foreign countries and for communication with them.
This demand had risen in the last pre-Meiji years and was still furi-
ously quarreled over at the beginning of the Meiji period.
The way things stood demanded for authoritative proclamation of

aims and prospects of the new regime. It was not possible to create
a written constitution without careful preparation, but the political
objectives were determined in a few announcements which can be
judged to be constitutional law.
(i) The last Shogun resigned on 9 November 1867,1 and upon
accepting the resignation, the Emperor announced on 10 November
1
Date of the Western calendar which was introduced in Japan on 1 January
1873. In order to enable the reader to put the events in the well-known, now ubiq-
uitous, system of fixing the dates, the years, months and days of the old lunar cal-
endar have been converted here according to the table in Nihon kindaishi jiten
(Dictionary of Modern Japanese History), ed. by the Kyòto daigaku bungakubu (University
of Kyoto, literary faculty), p. 825 et seqq. (1959).
30 public law
1867, among other matters of more administrative character, that

“Important matters of state and foreign affairs will be submitted to
general discussion”.
(ii) On 3 January 1868 the Imperial Restoration Order (Òsei fukko no
daigòrei ) was read to a gathering of high court nobles and members
of the feudal aristocracy who had been called together at the court.
The order made clear that the ancient mode of government under
the direct supervision of the Emperor was being reestablished, and
declared that specific top offices of the former regime were abol-
ished. The new government was formed of the ‘Three Offices’ (san-
shoku): Supreme Head (sôsai ), Senior Councillor ( gijò ), and Junior
Councillor (sanyo). An imperial prince was appointed Supreme Head.
The members of the second office were two imperial princes, three
court nobles, and five feudal lords (daimyò)2 named in the Order.3
The junior councillors were five court nobles and three samurai from
each of the five loyal clans named by their lords. The number of
the junior councillors rose to over one hundred by 11 June 1868,
the date of the dissolution of the Three Offices.4
First steps towards freedom of expression and the right to peti-
tion can be seen from paragraph 5 of the Imperial Restoration Order:
For the correction of existing abuses the path to free expression is
open; anyone, therefore, regardless of status, who has opinions on the
matter should present them without hesitation. Furthermore, as the
appointment of able persons is of the utmost urgency, any person who
fits this category should be immediately recommended.
and a clause of paragraph 6:
His Majesty’s mind is ill at ease on this occasion of momentous reform;
hence if any resourceful and farsighted remedial measures exist, any-
one, whosoever he may be, should submit them.
Again, the Order alluded to a public discussion, and, in this con-
nection said: “without regard for the distinctions separating high
court nobles, the samurai and court officials”. This version indicated
2
These were the lords of the clans which had proved loyal to the Emperor
before the restoration.
3
During the very short existence of the Three-Offices-system twenty other senior
councillors were appointed, (Dictionary of Modern Japanese History (note 1) at 673.
Some of them were only in office for a matter of days, and one gains the impres-
sion that loyalists of outstanding merit should be rewarded no matter how per-
functorily.
4
Cf. note 3. The Three Offices were subdivided into seven executive sections
(ka) on 10 February 1868; the sections were renamed kyoku two weeks later.
constitutional law 31
that “public” meant the leading persons of the court circles and the
clans, and not the common people.
(iii) On 6 April 1868 the Charter Oath of Five Articles (Gokajò no
goseimon) was proclaimed in Kyoto. It read as follows:
1. An assembly widely convoked shall be established, and all matters
of state shall be decided by public discussion.
2. All classes high and low shall unite in vigorously promoting the
economy and welfare of the nation.
3. All civil and military officials and the common people as well shall
be allowed to fulfill their aspirations so that there may be no dis-
content among them.
4. Base customs of former times shall be abandoned, and all actions
shall conform to the principles of universal justice.
5. Knowledge shall be sought throughout the world and thus shall
be strengthened the foundation of the Imperial polity.5
The wording of art. 1 indicated that members of the assembly should
not only include feudal lords or court nobles and officials.
II
Since the Charter Oath was merely a declaration of intent, it had

to be put into concrete terms. For this reason the ‘Document on
the Government System’ (Seitaisho) was proclaimed on 17 June 1868;
it is called the first written constitution of Japan. The Document—
as it is usually described in literature—consisted of 11 articles, the
first of which restated the Charter Oath of Five Articles as the start-
ing point for the following provisions:6
(ii) All power and authority in the empire shall be vested in a Council
of State, and thus the grievances of divided government shall be
done away with. The power and authority of the Council of
5
The preceding deliberations have been described by R. Ishii, Meiji bunkashi, 2,
Hòseihen (Cultural History of the Meiji Era, vol. 2: Legal System), 1954, p. 105 et
seqq., translated by W.J. Chambliss, Japanese Legislation in the Meiji Era, 1958,
p. 139 et seqq. The translation of this and the foregoing proclamations are taken
from Chambliss’ work.
6
Translation taken from Wm.T. de Bary (ed.), Sources of Japanese Tradition,
1959, p. 644 et seq. Japanese text in T. Miyazawa, Nihonkoku kenpò (Constitution
of Japan), additional volume, 1958, p. 1 et seq. See also note 19 in chapter
‘Administrative Law’.
32 public law
State shall be threefold, legislative, executive, and judicial. Thus

the imbalance of authority among the different branches of the
government shall be avoided.
(iii) The legislative organ shall not be permitted to perform executive
functions, nor shall the executive organ be permitted to per-
form legislative functions. However, on extraordinary occasions
the legislative organ may still perform such functions as tours
of inspection of cities and the conduct of foreign affairs.
(iv) Attainment of offices of the first rank shall be limited to princes
of the blood, court nobles, and territorial lords, and shall be by
virtue of [the sovereign’s] intimate trust in the great ministers
of state. A law governing ministers summoned from the provinces
(chòshi ) shall be adopted, clan officials of whatever status may
attain offices of the second rank on the basis of worth and talent.
(v) Each great city, clan, and imperial prefecture shall furnish qua-
lified men to be members of the assembly. A deliberative body
shall be instituted so that the views of the people may be dis-
cussed openly.
(vi) A system of official ranks shall be instituted so that each [official]
may know the importance of his office and not dare to hold
it in contempt.
(vii) Princes of the blood, court nobles, and territorial lords shall be
accompanied by [no more than] two two-sworded men and one
commoner, so that the appearance of pomp and grandeur may
be done away with and the evils of class barriers may be avoided.
(viii) Officers shall not discuss the affairs of the government in their
own houses with unofficial persons. If any persons desire inter-
views with them for the purpose of giving expression to their
own opinions, they shall be sent to the office of the appropri-
ate department and the matter shall be discussed openly.
(ix) All officials shall be changed after four years’ service. They shall
be selected by means of public balloting. However, at the first
expiration of terms hereafter, half of the officials shall retain
office for two additional years, after which their terms shall
expire, so that [the government] may be caused to continue
without interruption. Those whose relief is undesirable because
they enjoy the approval of the people may be retained for an
additional period of years.
(x) A system shall be established for levying taxes on territorial
lords, farmers, artisans, and merchants, so that the government
revenue may be supplemented, military installations strengthened,

and public security maintained. For this purpose, even persons
with rank or office shall have taxes levied upon them equiva-
lent to one thirtieth of their income or salaries.
(xi) Each large city, clan, and imperial prefecture shall promulgate
regulations, and these shall comply with the Charter Oath. The
laws peculiar to one locality shall not be generalized to apply
to other localities. There shall be no private conferral of titles
or rank, no private coinage, no private employment of foreign-
ers, and no conclusion of alliances with neighbouring clans or
with foreign countries, lest inferior authorities be confounded
with superior and the government be thrown into confusion.
The authors of the Document were Takachika Fukuoka and Taneomi
Soejima, samurai of clans which had supported the cause of the roy-
alists and advocated the abolition of the bakufu. Fukuoka (from Tosa)
had already had a hand in drafting the Charter Oath of Five Articles,
and Soejima (from Saga) had been a student under the Dutch Guido
Herman Fridolin Verbeck who, as a teacher at Nagasaki since 1860,
had imported western science. So, two men were at work who were
acquainted with the aim of the Charter Oath on the one hand and
western conceptions of constitutional principles on the other. The
influence of western ideas appeared in arts. 2, 3, 5, and 9: repre-
sentative government, separation of powers, selection of officials by
means of public balloting and limitation of their term of office. Art.
11 upheld a certain regional autonomy, as in former times, but it is
clear that the Document did not stand in the way of the establish-
ment of a centralized state. The centralized state was created when
the daimyò transferred their domains and the reign over the inhabi-
tants to the Emperor in July 1869. Several organs for deliberation
on legislative measures were instituted:
(i) Gijisho (deliberative body). Takachika (or Tòji) Fukuoka, a samu-
rai of the Tosa domain, was appointed major-domo (sansei ) of his
lord’s household in 1867 and, at the lord’s request, sent to Kyoto
early in November of the same year, together with the senior inspec-
tor (daikansatsu) Shòzaburò Gotò, in order to pay a visit to the
Shogun Keiki Tokugawa, to report on the trend of the times that
the transfer of the power to the Emperor was inevitable, and to urge
him to decide accordingly. After the restoration Fukuoka became a
junior councillor. Together with three other liegemen of Toyoshige
34 public law
Yamanouchi, daimyò of Tosa, Fukuoka had already in September/

October 1867 documented the views of their lord:7
1. All authority to deliberate on the administration of the realm
should be vested in the Court and all institutions and laws for
our land should, without exception, emanate from a deliberative
assembly (giseisho) in Kyoto.
2. The assembly should be divided into an upper and lower branch,
and the legislators should be honest and good men, with their
selection ranging from high ranking court nobles down to rear
vassals and commoners.
3. et seqq. omitted here.
So, Fukuoka was familiar with the idea of an assembly as it was
supported by the loyalist Tosa clan where it had been conceived by
Ryòma (or Ryùma) Sakamoto in July 1867.8 When on 9 November
1867 the last shògun had resigned the Court, in an effort to dispose
of problems connected with the Court’s assumption of power, the Court
convoked a conference to be attended by the lords of the domains,
but the daimyò were reluctant and did not respond to the summons.
Fukuoka, adhering to the position of his clan, pursued the concept
of a general assembly and submitted a plan for a deliberative body
( gijisho) of two chambers: an upper ( jòin) and a lower chamber (ka’in).
Members of the upper chamber would be the Emperor, the impe-
rial family, the court nobles and the feudal lords; the lower cham-
ber would consist of the imperial officials,9 the domain representatives
(kòshi), and other capable persons from town or country. Maybe such
a body existed in the period of transition from 1867 to 1868;10 reli-
able traces are lacking.
7
Ishii/Chambliss (note 5), pp. 54 and 709 respectively.
8
Senchù hassaku (Eight points—aboard) as the plan is called because Sakamoto
wrote his ideas down while sailing from Nagasaki to Kyoto.—Other persons, espe-
cially from the domains of Satsuma, Chòshù, and Echizen, were also pleading the
cause of public assemblies. Supporters of that idea emerged even in the bakufu. The
most prominent man of those was the scientist and politician Amane Nishi. For
details see Ishii/Chambliss (note 5) at 102 and 135 et seqq. respectively.
9
Chòshi: samurai under a daimyò, called upon by the government to perform cer-
tain duties.
10
Ishii/Chambliss (note 5) at 105/140. The Daijiten (Heibonsha), vol. 7 (1953)
p. 445, headword “gijisho”, says: “existed from bakufu to the first year of Meiji. Also
the Nihon rekishi daijiten (Great Dictionary of Japanese History), edited by Takado
Kawade, vol. 7, p. 238 (1957), headword “kòshi ” by Tsunekichi Yoshida holds the
gijisho to have been real.
(ii) One of the seven administrative sections established within the

Three Offices system on 10 February 1868 was the Legal Section
(seidojimuka or seidoryò). Its field of work was—among others—legislation.
Two weeks later the seven sections were replaced by the eight
secretariats, and the Legal Section became the Legal Secretariat
(seidojimukyoku).
(iii) With the establishment of the Great Council of State (dajòkan)11
on 11 June 1868 the separation of powers was formally realized. In
the first type of the dajòkan system12 the Law-Making Office (giseikan)
was the legislative component consisting of two subdivisions: the
upper department ( jòkyoku) and the lower department (kakyoku)
corresponding to the structure introduced by Fukuoka. Members of
the upper department were senior councillors (princes of the Imperial
family, court nobles, feudal lords) as well as junior councillors (court
nobles, feudal lords and their chief retainers, gentry, and common
people), and secretaries (shikan) who had to draft documents, deal
with routine work, submit extracts, and edit the official gazette of
the Great Council of State (dajòkan nisshi ). The upper department
organized the government system, enacted the laws; decided about
important affairs of state, selection of high officials, rewards and penal-
ties, treaties, war or peace.—The lower department, the members
of which were two directors (high-ranking administrative officials had
additionally to perform this business) and domain representatives,
was authorized on request of the upper department to deliberate
about tax, the postal service, coinage, weights and measures, treaties,
commerce, colonization, declaration of war, conclusion of peace, mil-
itary affairs, disputes between domains, etc. The lower department
was renamed Kòshi taisakusho, meaning that the duty of the domain
representatives was limited to answers to questions from above, i.e.
the Emperor. As an organ for public discussion the lower depart-
ment did not have any effect.
However, since the separation of powers under the seitaisho was
not carried out in a modern sense the said organs became gradu-
ally subordinate to the executive. On 3 November 1868 the giseikan
11
This institution had been an organ of the Imperial government since very old
times. ‘Establishment’ means that the dajòkan now regained political power after
about 700 years under the rule of the warrior class.
12
For the three types of the dajòkan see chapter ‘Notes on the Staff of the Ministry
of Justice’.
36 public law
was dissolved, reinstated for a short period from 23 May to 22 June

1869, and then finally abolished.
(iv) Because of the growing predominant influence of the execu-
tive it proved hard to implement the seitaisho and find a separate
legislative authority. On 2 November 1868 a committee for investi-
gating the form of legislation was set up. The members were roy-
alists and experts of European science. The result of their discussions
was the ‘Draft of Regulations for the Kògisho’ (kògisho hòsoku an; kògisho =
place for public discussion). On 24 January 1869 the Executive Office
( gyòseikan) sent out the draft and asked for a reply if there were any
apparently doubtful points; if so, such articles should be written down
and presented to a conference in the coming spring where the draft
could be finally deliberated and enacted. The historian Jintarò Fujii13
points to the fact, that the regulations applied not only to the mem-
bers of the kògisho but would also fall under the category of the rules
for regional assemblies. In April 1869 the Kògisho hòsoku were com-
pleted,14 and the assembly opened its first session on 18 April 1869.
While in the foregoing assembly the great domains (400.000 koku15
or more) were represented by three members, the medium-sized
domains (100.000–399.000 koku) by two, and the small ones
(10.000–99.000 koku) by one member, an order of 22 January 1869
had reduced the membership to one representative per domain. At
that time there were more than 270 domains.
(v) As early as 17 August 1869 the kògisho was renamed shùgiin.16
Simultaneously a short-lived upper house ( jòkyoku kaigi ) was done away
with, and for the time being there was no successor. These changes
were connected with the daimyò ’s surrender of the domains to the
Emperor, the consequence of which was that the representation of
13
One of the authors who explained early constitutional texts in Meiji bunka zen-
shù (Complete Collection About Meiji Culture), vol. 1: Kenseihen (Constitutionalism),
ed. Meiji bunka kenkyùkai (Society for the Study of Meiji Culture), section ‘Explanation),
p. 2 (1955).
14
R. Ishii (note 5) at 105 mentions that the retired Shogun, after having been
defeated in a subsequent battle with government troops near Kyoto and returning
to Edo in January 1868, created a kògisho which was opened on 3 March. No activ-
ities of that assembly are known, and it ceased to exist when imperial forces entered
the Kanto plain a few weeks afterwards. W. Chambliss (note 5) at 189.
15
An old rice measure: 1 koku = about 180 litres, approximately the yearly con-
sumption of one person. The harvest was estimated in koku for tax purposes.
16
Literally ‘house of the deliberative assembly’, not to be confused with the shùgiin
(House of Representatives under the Meiji Constitution of 1889) which is written
differently and literally means ‘house of public discussion’.
the domains in a central deliberative organ became unnecessary.

Nevertheless, the group of members was not essentially changed.
Compared with the kògisho the rights of the shùgiin were reduced. The
kògisho members were allowed to present bills. In the shùgiin the pro-
posals had to be introduced, as a rule, by the Council of State (cf.
art. 6 of the Regulations for the Kògisho and art. 2 of the Regulations
for the Shùgiin), and the shùgiin was merely an advisory body.
The proceedings of the kògisho and the shùgiin were recorded in
diaries (nisshi ):
– Kògisho nisshi17 covers the period from 18 April 1869 (opening
ceremony) to 15 July 1869 (last meeting) in 19 (actually 27, includ-
ing several subdivisions) volumes. The first volume contains intro-
ductory documents: seating plan, imperial address to the opening
ceremony, sectional groups (one of them had to deal with ‘criminal
law’ which was the main topic of the legal system), instructions for
the members, the rules for the kògisho, petition box and notice board.
The bills to be debated and the comments of the members are col-
lected in the other volumes. Added to the text of the Kògisho nisshi
was the Kògisho nisshi zenpen which literally means ‘The first part of the
Kògisho nisshi ’ (two volumes). This title of the document refers to the
predecessor of the kògisho, i.e. the kòshi taisakusho, the matters relating
to which were recorded there from March 1868 to March 1869.
– Shùgiin nisshi18 is the record of the proceedings of the shùgiin, the
former kògisho, in 1869 and 1870, beginning with a note of renam-
ing the kògisho on 17 August 1869 and ending on 9 December 1870.
During this period two sessions were opened: the first lasted from 7
October 1869 until 3 January 1870, the second from 26 June 1870
until 2 October 1870.
In the course of the institution of the first bodies for legislative
work mentioned above art. IX of the Seitaisho was increasingly imple-
mented. In the beginning there was no public election of the mem-
bers of the giseikan’s upper and lower house. On 22 and 23 June
1869 officials of the third and higher grades19 assembled in order to
17
Japanese text in Meiji bunka zenshù, vol. 1 (note 13), section ‘Wording’, pp. 1–134.
Explanation by J. Fujii (note 13).
18
Japanese text in Meiji bunka zenshù (note 13), section ‘Wording’, pp. 166–219.
Explanation by J. Fujii (note 13), pp. 7–9, including the text of the Regulations for
the Shùgiin (Shùgiin kisoku). Ishii (note 5), pp. 113–114; Chambliss (note 5), p. 151.
19
See section ‘Civil Service’ in chapter ‘Administrative Law’.
38 public law
elect the chief functionaries of the state, among them the senior and
junior councillors, some of whom held positions in the legislative or
advisory bodies.20 There were elections by ballot also on a smaller
scale in certain groups.21
(vi) In the summer of 1871 the domains were replaced by pre-
fectures (ken), and the reorganization of the government—establish-
ment of type III of the dajòkan system—followed shortly afterwards.
Although the shùgiin as the body of domain representatives lost the
reason for its existence it was not immediately discontinued, since it
was the institution that dealt with petitions.22
The newly organized government (dajòkan) was divided into three
chambers: Central Chamber (sei’in), Left Chamber (sa’in), Right
Chamber (u’in). Responsible for legislation was the Left Chamber23
which consisted of a president and several councillors (sangi ). These
legislators were not ‘publicly’ elected but civil servants appointed by
the government. They merely discussed legislation and did not make
laws. Important persons from the former domains were among the
members and broadened the view on issues of nationwide concern.
The Left Chamber had a higher position than the shùgiin which was
finally dissolved in June 1873. At the same time the duties of the
Left Chamber were prescribed as the “compilation of the assembly
regulations, the constitution, the civil code and the drafting of leg-
islation by order of the government” which meant that the Left
Chamber no longer dealt with everyday legislation. However, before
the Left Chamber could produce substantial results it was disestab-
lished on 14 April 1875 together with the Right Chamber.
(vii) The successor of the Left Chamber enjoyed a lifetime of fifteen
20
E.g. the sanyo Shigetomi Òhara became president of the shùgiin. Meiji bunka
zenshù (note 13) at 166.
21
For examples see Ishii/Chambliss (note 5), p. 114 and 149–150. The Shùgiin
nisshi reports on elections of secretaries and other office bearers, Meiji bunka zenshù
(note 13), at 167, 184.
22
The Meiji government had fostered a means of communicating one’s opinions
to the authorities ( genro dòkai ), installed a complaints box in Kyoto and a petition
office in Tokyo in the spring of 1869: taishòkyoku, literally: office for preparing drafts
of imperial rescripts. After four months the office was renamed taishokuin; one month
later the shùgiin took over the business under a government order of 20 September
1869 (Shùgiin nisshi—note 18—p. 166). In this respect the shùgiin was a kind of peti-
tion committee with an advisory function.
23
Ishii/Chambliss (note 5) at 114/152.—The Right Chamber was an assembly
of the ministers and vice-ministers responsible for the communication between and
cooperation of the ministries.—The Central Chamber was a predecessor of the cab-
inet which was established in 1885.
years: 14 April 1875–22 October 1890. The new legislative organ,

called the “Chamber of Elder Statesmen” ( genròin), was created by
the participants of the Osaka conference in January/February 1875.
The government had got into difficulties. The councillors had quar-
relled about the Korean issue and five of the nine councillors resigned
in October 1873. Takayoshi Kido followed them on 13 May 1874
because he opposed the policy concerning Taiwan. The remaining
group was enlarged by three newly appointed councillors of which
those of Satsuma and Chòshù origin enjoyed the strongest and most
powerful position with Toshimichi Òkubo as the central figure. At
about the same time public demand for a parliament elected by the
people became more intense. The public discussion of all matters of
state had been modestly designed in the early proclamations of the new
regime (see above) but not sufficiently put into effect. On 18 January
1874 top politicians being in opposition to the government submitted
a written petition for the establishment of a parliamend elected by the
people (minsen giin setsuritsu kenpakusho) to the Left Chamber. It was this
action that incited to the movement for democratic rights ( jiyù minken
undò). The petition was signed by the former councillors Itagaki, Gotò,
Etò, Soejima as the leaders and joined by intellectuals of samurai ori-
gin. In order to extend the freedom and rights of the people the peti-
tioners pressed for a publicly elected parliament, as a result of which
the prosperity of the Japanese empire was expected. In connection
with the demand for democracy or at least the people’s participation
in a law-giving organ the first political parties appeared. Initially, on
12 January 1874 the said opposing councillors founded the Patriotic
Party (Aikoku kòtò) which declared that the people had rights and free-
dom as a gift of heaven. The party vanished when, a few weeks later,
Etò organized a revolt in Kyùshù (Saga no ran) and was prosecuted.
Taisuke Itagaki established the Inspiring Society (Risshisha) in Tosa on
10 April 1874, which spoke up for natural human rights, considera-
tion of public opinion in the spirit of autonomy and independence and
rights of the citizens. The purpose of the new Patriotic Society (Aikokusha),
founded on 22 February 1875, was to disseminate the ideas of the
Risshisha, which operated in Tosa over the whole of the country. The
Saga no ran (see above) was a clear indication of the fact that a notice-
able part of the samurai were discontented about the new political con-
ditions. Other revolts of these circles happened in 1876 and 1877.
The government had at first pursued an antidemocratic policy, but
in view of the intensified demands for a generally elected parliament
it gave the impression that it would make concessions, and promul-
gated the Basic Law and Regulations for a Diet (Giin kenpò narabi ni
kisoku) as an imperial edict on 2 May 1874.24 The contents were that
24
Text in Meiji bunka zenshò (note 18) at 247–252.
40 public law
an assembly of the people’s representatives would be achieved step by

step. First, a standing conference of the regional head officials (chihòkan
kaigi ) was to be held who, representing the people, should discuss the
public affairs. But the emperor had the right to select the president
of the conference and to confirm laws resolved by that body. The
right to dissolve the conference rested with the president alone. Actually,
the conference was an organ which answered questions introduced by
the government. Under art. 1 of the Basic Law the conference was to
meet once a year.
IV
(i) This was the way things stood when on 10 January 1875 promi-
nent politicians (Kaoru Inoue, Hirobumi Itò, Taisuke Itagaki,
Takayoshi Kido, and Toshimichi Òkubo) assembled in Osaka in
order to strengthen the Meiji government by realizing the principles
of modern constitutionalism step by step, the outlines of which had
been laid down in the early proclamations. The former domains of
Satsuma, Chòshù, and Tosa formed an alliance and reached an
agreement to support the government. The results were25
– Kido and Itagaki re-entered the government as councillors,
– the separation of the three powers: legislation, executive, judica-
ture, was proclaimed the characteristic of the state,
– a senate ( genròin) and the standing conference of the regional head
officials were preparatory stages of the coming parliament and con-
stitutional system,
– the ‘cabinet’ and the single ministries were to be separated, and
the ‘cabinet’ consisting of elder statesmen, namely the Prime
Minister, the Ministers of the Left and the Right, and the coun-
cillors, had to render assistance and support,
– the executive was to be administered by persons of one position
lower,
– a Supreme Court (taishin’in) was established as the highest organ
of the judicature.
Although different fundamental opinions could not be completely
united the participants agreed on a gradual advance towards con-
stitutionalism as the national policy. A corresponding imperial edict
25
Nihon rekishi daijiten (note 10), vol. 3, p. 131.
was issued on 14 April 1875. However, the Osaka program was not
implemented in every respect, in particular the road to constitu-
tionalism seemed to become a long one, for in the government con-
servative circles gained influence. Itagaki could not achieve the plan
to separate the ‘cabinet’ and the ministries and realized that the
Senate showed itself as a body merely to answer questions and not
to fulfill legislative duties. So he resigned from the post of council-
lor after a few months. The solidarity of the progressive politicians
collapsed, and absolutism continued.
(ii) The Standing Conference of the Regional Head Officials (below
abbreviated ‘StC’) was convoked for September 1874 but postponed
because of political excitement due to the Taiwan incident (seitai no
eki ).26 The StC held only three sessions. The first session was opened
on 20 June 1875 and ended on 17 July 1875.27 The members gave
their opinion on subjects presented by the Emperor (i.e. the gov-
ernment) in the form of questions or drafts. The session dealt with
(1) local police, (2) roads and bridges, (3) repair of river ports and
roads, (4) dikes, (5) assemblies of the regional population, prefectural
assemblies, ward assemblies.
As an illustration a broad outline of item (1) of the agenda will
be attempted:
Question about local police:
1. Setting up of a police force for the protection of the people must
be strictly pursued. In the effort to take appropriate action addi-
tional costs must not be spared. In the case of additional costs: should
they be borne partly by the government and partly by the people
in the form of a district tax? How should the division be regulated?
2. When the contributions to the expenses have been settled rules
for the stationing of officials in government service and policemen must
be determined. Should it be regulated according to the areas of land
or in proportion to the number of households? How can it be done?
3. When the rules for stationing the policemen have been deter-
mined the levy of policemen must be regulated. How can it be done?
26
Japan had dispatched soldiers to Taiwan where shipwrecked seamen from the
Ryùkyù islands had been murdered. The Japanese expedition was relevant to the
dispute as to whether the islands were Japanese or Chinese territory.
27
The proceedings of this session have been published in Meiji bunka zenshù (note
18) at 255–339: Chihòkan kaigi nisshi (Diary of the StC).
42 public law
The following answer to be discussed had been drafted in advance:28

[abridged]
1. Two thirds of the costs to be borne by the central government
and one third by means of district tax would be appropriate.
2. The number of policemen below public officials should be fixed
according to local circumstances, but must be roughly settled. Except
the regions of Kyoto, Osaka, and the three harbours in Kanagawa,
Hyògo, and Nagasaki, an area of about 100,000 inhabitants should
be one police district with a detached office, one official, and fifty
policemen, seven police stations, eight branch stations, and a num-
ber of police boxes.
3. The qualification for policemen should be:
(i) 25 to 45 years of age,
(ii) Robustness, height at least 5 shaku (ca. 152 cm),
(iii) Ability to read everyday texts,
(iv) No hindrance to continuous service for three years,
(v) No syphilis or chronic disease,
(vi) Gentle and persevering character, free of alcoholism and sim-
ilar addiction,
(vii) At least two good references,
(viii) Previously no infamous offence or receiving stolen goods, and
the like.
After discussion the StC made the following statement:
1. Of the total costs of the police force the government shall bear
two thirds. One third shall be contributed out of district taxes. The
government’s share shall be allotted to each region in proportion to
the population. The district’s share shall be appropriately dealt with
depending on the poverty or wealth of the people in the district.
2. In all regions, except the Tokyo, Kyoto, and Osaka prefectures
and the three harbours (Kanagawa, Hyògo, Nagasaki), for an area of
about 100,000 inhabitants there shall be one police district with a
detached office, aiming to station there two subordinate officials and
28
Under art. 9 of the Basic Law for a Diet the government could, by means of
an Imperial message, enclose a draft of a likely answer if it was expected that the
StC would be short of time to formulate the answer by itself. The draft became
the subject of the discussion leading to assent, or disapproval, or amendment. In
any case the final decision rested with the Emperor.
fifty policemen, but more or less inhabitants in a ward according to

the local circumstances will make no difference. Also the seven police
stations and eight branch stations shall in principle be established,
but more or less should, according to the situation of the terrain,
be made as appropriate. Two officials per 100,000 inhabitants shall
be assigned to the main office plus one extra for every additional
100,000. If in the latter case the personnel budget is not exceeded
it may be proper to take on an external officer of equal rank charge-
able to the internal budget.
3. [Provisions concerning the levy of policemen were formulated
in an appendix to the statement which contained also drafts of laws
for stationing police forces and for the allotment of governmental
means. The draft of a Law for the Levy of Policemen read as follows:]
‘Policemen must be men of good conduct and strong constitution,
otherwise they may not be appointed to office. Hence, the items of
levy are the following:
(i) Age: 20 to 45 years.
(ii) Ability to read everyday texts,
(iii) No hindrance to continuous service for two years,
(iv) No malignant illness,29
(v) Gentle and persevering character, free of alcoholism and simi-
lar addiction,
(vi) Reference(s),
(vii) Previously no infamous offence, or receiving stolen goods, and
the like.
These are mere general rules; adoption or rejection or a compro-
mise is left to the discretion of the regional official.30
The second session of the StC was opened on 10 April 1878. The
members discussed the ‘Three New Laws’ which for the first time
set up a standard regional organization: (1) Law for the Organization
of Districts, Wards, Towns, and Villages (Gun-ku-chò-son hensei hò), (2)
Rules for the Prefectural Assembly (Fukenkai kisoku), (3) Rules for
District Taxes (Chihòzei kisoku). Finally, from February 1880, the
agenda of the third session contained amendments to the ‘Three
New Laws’, the Law for the Assemblies of the Wards, Towns, and
29
General meaning, especially leprosy.
30
Meiji bunka zenshù (note 18), at 261–262, 287–288.
44 public law
Villages (Ku-chò-son kai hò), and the Law for a Famine Relief Fund
(Bikò chochiku hò).
(iii) Meanwhile, the Senate ( genròin) had been founded in accordance
with the imperial edict of 14 April 1875 and opened on 5 July 1875.
The StC was a test for a house of representatives (shùgiin) of a later
time;31 the Senate was the forerunner of the House of Peers (kizokuin).
This body was headed by a president and a vice-president, the other
members were a secretary32 and a number of councillors ( gikan)—
they were not elected by the people but selected and appointed by
the tennò. The councillors came from the peerage, high officials (who
had the right to report directly to the throne), persons of distin-
guished service to the state, persons erudite in politics or law.33 On
25 November 1875 they created the Regulations Governing the
Organization of the Senate, art. 1 of which defined the Senate as a
body of legislative officials whose duties were to deliberate on new
legislation, to revise existing laws, and to receive petitions. However,
the legislative power of the Senate was limited under other articles,
and in reality the body had no legislative competence but was a
mere advisory organ which gave its opinion about bills and inquired
into law in operation. An amendment of the regulations in December
1875 giving the Senate decision-making power in some cases did not
alter the fact that the government had the dominant position.34
(iv) When the gradual advance towards constitutionalism had been
announced35 the discussion about a constitution livened up. Previously
there had been several proposals as to the principles of the consti-
tution, mainly the separation of the three powers and the creation
of a popularly elected assembly, initial stages of which had been
officially laid down in the Charter Oath of Five Articles and the
Document on the Government System. Now, on 7 September 1876,
the President of the Senate received an Imperial rescript: “We intend
31
J. Fujii (note 13), at 13.
32
President, vice-president and secretary were elected by the members from
among themselves.
33
Noboru Umetani, Genròin (Senate), in Nihon kindaishi jiten (note 1), at 161.
34
Ishii/Chambliss (note 5), at 116/154.
35
Imperial edict of 14 April 1875, see above.—For the development of consti-
tutional ideas see Ishii/Chambliss (note 5), at 116 et seqq./155 et seqq. J. Andò,
Die Entstehung der Meiji-Verfassung: zur Rolle des deutschen Konstitutionalismus
im modernen japanischen Staatswesen (The Origin of the Meiji Constitution: On
the Role of the German Constitutionalism in the Modern Japanese Polity), München
2000, 35–47.
to ordain a constitution based on the fundamental character of Our

nation well-grounded from the foundation of the state as well as
broadly considering the laws of foreign countries. Ye are required
to draft a preliminary version properly taking the aforesaid into
account and report on it to Us. Then We will make a decision.”36
In June 1878 the ‘Draft Constitution of Japan’ (Nihon kokken’an)
was completed37 and presented to the President of the Senate.
Thereafter more than three years went by in which particulars were
debated, changes proposed, opinions obtained, principles disputed,
suggestions offered—all this among politicians or parties excluding
the general public. Anyhow, the Movement for Democratic Rights
turned its attention to the course of action and agitated for a national
assembly in such a way that the government felt compelled to enact
Regulations for Public Meetings (Shùkai jòrei), as a measure to sup-
press political discussion: chiefly forbidding political speeches before
the public. Living underground, the various groups in each locality
began to conduct theoretical studies on the subject of a national
assembly and a constitution, and privately drafted constitutions
appeared.38 All in all, the government came under pressure.
In this situation the Emperor on 12 October 1881 announced the

establishment of a national assembly in 1890, and, in view of demands
for speed, warned the public not to become agitated. The Emperor,
wanting advice as to his sovereign power and the preparations being
made for the constitutional form of government, was apprised by
the ministers that constitutional government and the respective spheres
of authority of the monarch and the assemblies were different in
each country, and hence it would be necessary for Japan to use
discretion in selecting the form of government that would be
suitable to the national polity and the customs of the people.39
36
R. Ishii (note 5), at 122.
37
Four members of the Senate and three secretaries had been at work.
38
In the vast majority they were based on the concept of social contract (Rousseau)
in contrast to the idea of a constitution bestowed upon the people by the emperor.
39
Ishii/Chambliss (note 5) at 295/366. For the preparations of the enactment
of the constitution see the comprehensive description loc. cit. at 295–315/366–381.
There is a mass of literature on the subject, recently J. Andò (note 35).
46 public law
Since the Emperor had already asked for consideration of foreign law
in his order to the President of the Senate of September 1876 (see
above), it was natural that now relevant enquiries had to be intensified
and updated. To this end, the councillor Hirobumi Itò, who was
chosen to be in charge of drafting the constitution, received an order
from the Emperor to go to Europe for constitutional research. To
him was given a list of thirty-one items as the topics of study. These
items provide a view of the problems to be solved:
1. Origin of the constitutions of the European constitutional monar-
chies, their history, actual state, advantages and shortcomings.
2. Special rights of the imperial house.
3. Property of the imperial house and family.
4. Organization of the cabinet; authority of the legislature, execu-
tive, justice, and diplomacy.
5. Law of the cabinet’s responsibility.
6. Relations between the cabinet ministers and the upper and lower
houses of the diet.
7. Procedure of the cabinet’s dealing with its business.
8. Organization of the upper and the lower houses.
9. Privileges in the peerage system.
10. Competence of the upper and lower houses, and procedure of
dealing with their business.
11. Special rights of the imperial house pertaining to the upper and
lower houses.
12. Opening, closing, dissolving, and adjourning the upper and the
lower house.
13. Free political discussion in both houses.
14. Arguments about special rights of both houses.
15. Standing orders.
16. Treatment of members of both houses on the part of the impe-
rial household.
17. Relations between both houses.
18. Who presents a bill to the diet? Matters concerning bills.
19. Process in both houses to pass the budget or examine the account.
20. Judicial power of both houses.
21. Petitions or administrative jurisdiction.
22. Eligibility and election of the members of both houses.
23. Delimitation of law and administrative regulations.
24. Organizing power of each ministry.
25. Relations between each ministry and both houses of the diet.
26. Relations between each ministry and regional officials.
27. Conduct, promotion, or degradation of judicial officials.
28. Relations between judicial officials and both houses of the diet.
29. Responsibility and conduct of the public officials.
30. Privilege of provision for old age in favour of the public officials.
31. Local government system.
The list shows that the Japanese were well acquainted with the cru-
cial points of a constitutional charter.
Itò and his entourage departed on 14 March 1882 and returned
on 4 August 1883. They stayed in Berlin from 16 May 1882 to 19
February 1883 with some breaks in between, five months in total.
They had many conversations with Rudolf von Gneist, a famous
professor of constitutional law, and attended lectures arranged for
them and given by a Berlin judge, Albert Mosse, on administrative
law. In Vienna they took counsel from Lorenz von Stein about
political and social science as well as theory of administration. Von
Stein, likewise renowned, gave his advice in conversations and quite
a number of private lessons.40 Before leaving Europe Itò visited
England and Russia apparently without engaging in profound con-
stitutional studies; after all, Japan had already decided in favour of
the German/Prussian type of constitutionalism.
Having returned to Japan Itò was busy with some changes in
government which were to serve the preparation of the constitution.
During his stay in Europe enquiries into the traditional order of the
imperial household had already begun, and on 17 March 1884 the
Office for Investigation of the Institutions (seido torishirabe kyoku) was
set up in the Ministry of the Imperial Household, the duty of which
was to deal with “the enactment, amendment, or repeal of laws and
ordinances which will greatly bear upon the constitutional system”.41
Itò was appointed director and four days later Minister of the
Imperial Household in addition to his task as a junior councillor to
the government. He gave the peerage a system of ranks under the
Ordinance Concerning Peers (kazokurei ) of July 1884, with the aim of
providing for a peerage majority in the upper house of the coming
40
For details see J. Andò (note 35), at 59–75.
41
R. Ishii (note 5) at 300. W. Chambliss (note 5) at 370 calls the said office
“Legislation Research Bureau”.
48 public law
national assembly or diet, because he foresaw the necessity for a

means to counteract decisions of the lower house.
Itò’s next step was the reorganization of the government. The
Council of State system (dajòkan) from days of old stood in the way
of modernizing the central authorities, owing to the appointment of
the three top ministers (the Prime Minister, the Ministers of the Left
and of the Right) from among aristocratic families. Moreover, there
were unsatisfactory particulars as to the direct imperial rule and the
swift and sufficient management of state affairs. Most of the coun-
cillors to the dajòkan who actually directed the politics came from
the Chòshù- and Satsuma clans which had distinguished themselves
as loyalists on the occasion of the Meiji restoration and thereafter.42
The clan government (hanbatsu seiji ) was somewhat impaired by the
rivalry of the two leading clans and the permanent striving to keep
an equilibrium between them.
Itò proposed the creation of a cabinet instead of the Council of
State. The posts of the dajòdaijin (prime minister, or minister-presi-
dent, or chancellor) and the ministers of the left and right should
be abolished and replaced with a prime minister and the necessary
ministers of state, who were to be appointed upon recommendation
of the prime minister. The plan also called for the prime minister
to be given control over the state ministers and to be made com-
pletely responsible for state affairs. The councillors approved Itò’s
proposal, and the Emperor assented.
On 22 December 1885 the last decree of the Council of State
was issued: complying with an imperial order it notified the dises-
tablishment of the offices as prescribed in Itò’s plan, and announced
the creation of the Prime Minister and the Ministers of the Imperial
Household, Foreign Affairs, Home Affairs, Finance, Army, Navy,
Justice, Education, Agriculture and Commerce, and Communications.
With the exception of the Minister of the Imperial Household they
42
Taking the six last years of the dajòkan system (1880–1885) there were 14 coun-
cillors in all, five of them came from Chòshù and five from Satsuma. Two were
from Hizen (Saga) and two from Tosa, also loyalist clans. Politicians of such pedi-
gree had been and were in the time ahead influential over several decades, the
leading persons being Toshimichi Òkubo († 1878), Hirobumi Itò († 1909), Aritomo
Yamagata († 1922). The dominance of the clan determining polity fell back when
in the late Taishò era the political parties had reached a firm status and played an
important role in the government.
were all members of the Cabinet. Moreover, the office of the Lord
Keeper of the Privy Seal (naidaijin)43 was set up at the Court.
Simultaneously, ‘Official Powers of the Cabinet’ (naikaku shokken)
were enacted. Six of the seven articles pertained to the powers of
the Prime Minister (naikakusòridaijin). Article I declared that the Prime
Minister, as the head of the other ministers, should report on state
affairs to the Emperor and, upon receiving his orders, should give
instructions on the course of administrative policy; this article gave
the Prime Minister control over all executive departments. The sec-
ond article authorized the Prime Minister to demand explanations
and to investigate the activities of the executive departments. Article
III empowered him to suspend the Imperial decision when it was
deemed necessary. Article IV gave the Prime Minister supervisory
control over the legislation drafting committees within the depart-
ments. Article V required the Prime Minister, and any minister whose
jurisdiction was concerned, to countersign laws and ordinances. Article
VI specified that each cabinet minister should make occasional reports
to the Prime Minister on the state of affairs within his own respec-
tive department, though in military matters the Minister of the Army
was to report to the Prime Minister what the General Staff Office
reported directly to the Throne.44 Article VII ruled that the duties
of a disabled cabinet minister were to be performed by another cab-
inet minister. As a whole the articles founded a strong position for
the Prime Minister and enabled him to install a cabinet of capable
43
Regularly assisting the emperor he was a liaison organ for communication
between the elder statesmen, the ministers etc. and the emperor; actually he insti-
tuted an important political activity.—A naidaijin had first been appointed in the
7th century, he served in the Imperial government (daijòkan) with a competence sim-
ilar to that of the ministers of the left and right. His post and duty were not reg-
ulated in the old codes, he was an extraordinary minister. This old type of naidaijin
was done away with when the last bearer of the court rank ‘naidaijin’, the Shogun
Keiki Tokugawa, resigned this rank (Ishii/Chambliss (note 5) at 62/77. Regarding
that event the translation ‘Lord Keeper of the Privy Seal’ is ahead of its time, the
naidaijin of old had a function of its own—apart from the fact that it had become
a mere title).
The standing of the office of the new naidaijin, ‘Lord Keeper of the Privy Seal’,
may be gathered from the fact that the head of the Council of State (dajòdaijin)
Sanetomi Sanjò became naidaijin when he resigned in order to open the way to
the establishment of the cabinet system. Maybe the office of naidaijin was re-created
with the purpose of providing him with an appropriate position.
44
From “Article 1” to “Throne” translation by W. Chambliss (note 5) at 373 of
R. Ishii (note 5) at 302. “Department” = Ministry.
50 public law
men with no consideration of clan or family origin.45 Itò was appointed

Prime Minister, his first cabinet governed from 22 December 1885
to 30 April 1888; with intervals in between he formed four cabinets
by 1901.46
From 1886 to 1888 Itò in person was engaged in drafting the
constitution. The preparations have already been repeatedly described,
therefore, only the main features will be outlined here.
– The persons participating in the project were Kowashi Inoue (for-
mer chief of the Legislative Bureau), Miyoji Itò (member of the
Itò delegation studying in Europe), Kentarò Kaneko (government
official), and the German legal advisers Hermann Roesler and
Albert Mosse.47
– The work on the constitution was carried out in secrecy, at first
at Itò’s residence in the Shiba-Takanawa quarter of Tokyo, then
in a hotel at Kanazawa (south of Yokohama), and finally in Itò’s
villa on the island of Natsushima48 (near Yokosuka).
– The constitutional law of Prussia and Germany as well as the
experience of Itò’s delegation of 1882/3 in Europe were the gen-
eral guidelines subject to the adaptation to Japanese conditions.
– When the drafting work commenced Itò instructed the Japanese
members of the team as follows:
1. The general principles relating to the Imperial house should be
separated from the Constitution by enactment of an Imperial
House Law.
2. Consideration for the national polity and the history of Japan
should be the fundamental principles that guide the drafting of
the Constitution.
3. The Constitution should be only a general outline concerning the
administration of the Empire; the text should be brief and clear,
and it should be written in such a way that it may respond flexibly
to the development of the national destiny.
45
Hirobumi Itò himself had risen from the lowest class of samurai in Chòshù.
46
In 1906 he was appointed Resident General in Korea. Following his resigna-
tion in 1909 he became President of the Privy Council for the fourth time on 14
June 1909. On 26 October 1909 he was assassinated by a Korean at Harbin/
Manchuria.
47
For the contributions of Roesler and Mosse see J. Andò (note 35).—Ishii/
Chambliss (note 5) at 303/374 et seqq.
48
“Matsushima” in W. Chambliss (note 5) at 375 is a misprint.
4. The law of the houses and the election law for members of the
House of Representatives should be determined by statute law.
5. The organization of the House of Peers should be determined by
Imperial ordinance, and any amendments of this ordinance should
require the consent of the same House.
6. The territorial boundaries of the Japanese Empire should not be
included in the Constitution, but fixed by statute.
7. Impeachment of state ministers should be excluded; and both
houses should have the right to address the Throne. (Translation
by Chambliss.)
VI
The final draft put these requirements into effect. Particularly significant
was no. 3 of the instructions: until 1946 the Japanese Constitution
of 11 February 188949 was never amended, nonetheless the form of
government changed from bureaucracy to the Talshò democracy,
and lastly to military dictatorship. The characteristic of the bureau-
cratic form of government was the check on political parties’ par-
ticipation in the administration. The first party cabinet was established
in 1898, it is true, but at that time this was a rare occurrence. After-
wards, mainly in the Taishò era (1912–1926), the parties gained more
influence, party cabinets and non-party cabinets alternated, and from
1924 there were only party cabinets until, in 1932, militarists came
into political power and governed up to the end of World War II.
On the other hand the Constitution allowed an absolutist regime
because it was based on the Tennò-ideology: the Emperor was sacred
and inviolable (art. 3) and therefore exempt from responsibility to
any authority on earth. The reign of the Emperor was the mental
picture of the kokutai which may be translated ‘fundamental charac-
ter of the nation’ or ‘national polity’,50 but is really untranslatable.
It is a specific Japanese phenomenon without equivalence in Europe
or America.51 The term does not appear in the Constitution of 1889.
49
Appendix A.
50
This term is widely applied, but the renowned scientist Kenzò Takayanagi
held it to be “somewhat inaccurate”, in Law in Japan, The Legal Order in a
Changing Society, ed. by A.T. von Mehren; 1963.
51
A helpful interpretation is given by Klaus Antoni, Zum Begriff, zur Herkunft,
zur früheren und heutigen Bedeutung des kokutai (On the Concept, Origin, Former
and Present Significance of kokutai ), in Saeculum XXXVIII, no. 2–3 (1987), p. 266.
52 public law
Its gist was expressed in the Imperial Rescript on Education (Kyòiku

chokugo) of 30 October 1890, and a publication by the Ministry of
Education ‘Fundamentals of Our National Polity’ (Kokutai no hongi )
of 1937.52 To put the matter in a nutshell, the heart of kokutai53 was
expressed in art. I of the Constitution: The Empire of Japan is
reigned over and governed by the tennò coming from a line of
Emperors unbroken since the beginning of the state and surviving
for ages eternal. This doctrine about the interpretation and true
meaning of which various explanations were produced in the course
of time, served as an agent to incite the people—the subjects—to
be respectful and loyal to the Emperor and the authorities installed
by him, and to his government, as well as to live according to the
Confucian virtues. It was a vehicle for forcing obedience, domestic
peace and order, and national cohesion. The legal character of koku-
tai was given expression in the Law for Maintenance of the Public
Peace (Chian iji hò ) of 22 April 1925, art. 1 of which said: ‘A per-
son who with the intention of revolutionizing the kokutai 54 forms an
association or. . . . [briefly: executes a function therein] will be sen-
tenced to death or penal servitude for life or for at least seven years.’
Kokutai was the predominant idea, and Itò was determined to pre-
serve it in the Constitution, as was expressed in his report of 19
September 1883 to the Emperor on the study of constitutional monar-
chy in Europe,55 and in no. 2 of his instructions for the drafting (see
above). Art. I of the Constitution gave kokutai the quality of written
constitutional law and made it an element of the aspect of abso-
lutism which also appeared in other articles.
– the central position of the Emperor with regard to all actions of
the state, arts. 4 et seq., 57,
– emergency ordinances of the Emperor,
– the Emperor’s supreme command over the army and navy, art. 11.
52
de Bary (note 6) at 646–647 and 785–795. The ‘Fundamentals’ demonstrate
the spheres in which the kokutai ideology determines spirit and morals of the Japanese.
See also G. Rahn, Rechtsdenken und Rechtsauffassung in Japan (Legal Thinking
and Understanding in Japan), 1990, pp. 162–163.
53
Kokutai = ‘the form of the nation’ may not be confused with ‘seitai’ = ‘the form
of the government’.
54
The Supreme Court found in a judgement of 31 May 1929 that kokutai under
art. 1 of the said law has to be interpreted as laid down in art. I of the Constitution,
the message of which “is kokutai”.
55
Ishii/Chambliss (note 5) at 300/370.
The supreme command is separated from the other state business,

and the Emperor is advised not by the ministers but by high
military officers without involvement of the diet in executing the
command.
– The autonomous Imperial House Law (Kòshitsu tenpan) without
involvement of the diet, arts. 2, 17, 74 paragraph 1.
Besides the aspect of absolutism, the Constitution of 1889 showed
democratic-liberal principles which were a matter of course since the
general guideline for legal reform, including the Constitution, was
the reception of modern western ideas in so far as they could be
regarded as or made suitable to Japanese conditions and would sup-
port the object of having the unequal treaties revised. The democ-
ratic-liberal aspect was expressed in the provisions concerning
– civil rights and liberties under chapter II which were guaranteed
“according to the provisions of law”; enactments under art. VIII
could restrict liberties as well,
– the separation of powers, grounded already in the Document of
the Government System (Seitaisho, see above) but under the Con-
stitution, due to the position of the Emperor in legislation and
executive, realized in relatively pure form only for the judicature,
– the rule of law to be inferred from art. LXI binding the admin-
istration to law and regulations and laid down for the judicature
in art. LVII para 1,
– the establishment of the diet (chapter III) which, because of the
organization of the House of Peers and the limitation of the fran-
chise (see below), represented the people only ineffectively; more-
over, it was intended that the diet should have less influence than
the government,56
– the responsibility of the ministers of state for their advice to the
Emperor which afterwards, at times, developed into the responsibility
to the representatives of the people (the diet) = parliamentarianism.
56
That this was really implemented was inferred from art. LXXI. The argument
is not convincing. In times of increasing prices the diet can put the government in
the predicament of operating with a budget which does not cover the expenses.
54 public law
VII
Some institutions, not mentioned in the Constitution, had consider-

able political power with relevance to the constitutional order:
– Elder statesmen ( genrò),57 a small circle of advisers to the Emperor.
They had been active politicians but were no longer governmen-
tal functionaries. Most of them came from samurai families of the
greatest anti-shogunate domains Satsuma and Chòshù. They may
be called the scions of the dajòkan oligarchy. Their advice was
asked for in matters pertaining to basic questions of politics and
the appointment of the Prime Minister. Their influence was par-
ticularly strong in the Taishò- and early Shòwa era. The public
regarded this as unconstitutional, and the parties and media opposed
the institution.
– The aforementioned Lord Keeper of the Privy Seal (naidaijin) gave
advice to the Emperor, especially in the post-Meiji time when the
number of the genrò decreased.
– The General Staff Office (sanbò honbu), founded in 1878, was under
the direct control of the Emperor and took charge of military
affairs. That was the beginning of the independence of the supreme
command.
– The Naval General Staff Office (kaigun gunreibu), set up in 1886,
was subordinate to the General Staff Office and as such not inde-
pendent, but broke away from the Minister of Naval Affairs who
was responsible for the administration.
– The Supreme Military Council ( gunji sangi’in), institutionalized in
1903 after, in 1887, the Army Minister, the Naval Minister, the
Chief of the General Staff Office, and the Military Supervisor
(kangun) had been appointed imperial advisers.58
57
Not to be confused with the members of the aforesaid genròin, the advisory
council existing from 1875 to 1890. During the period of fifty years up to 1940
there were only nine genrò in all, the last and since 1924 sole genrò, Kinmochi Saionji
(a Court noble) died in 1940. Since 1902 no new genrò had been appointed.
58
Kame’ichi Hosokawa, Nihon kindai hòseishi (Modern Japanese Legal History),
1961, pp. 117, 120, 123.
VIII
The Constitution was accompanied by several laws of the same level:

– The Parliamentary Law (Gi’inhò) of 11 February 1889 which did
not enable the diet to control the government effectively, and so
realized the authoritarian intention to hold the diet down.
– The Law for the Election of Members of the House of Repre-
sentatives (Shùgi’in gi’in senkyo hò) of 11 February 1889 limited the
right to vote to men of at least 25 years of age who paid at least
15 ¥ direct national tax and who had been registered and living
in the prefecture for one year or more.59 When, in 1925, the gen-
eral right of men to vote was introduced the legislator thought it
necessary to enact the ill-famed Law for Maintenance of the Public
Peace (Chian iji hò) in order to suppress left-wing movements.
IX
As explained above the sovereignty of the Emperor, the quintessence

of kokutai, was the basic creed of the constitutional system. Arts. I
and IV of the Constitution soon became a bone of contention in
academic circles, especially among professors of law at Tokyo Imperial
University. The leading contestants were Yatsuka Hozumi and his
successor (1900) Shinkichi Uesugi, on the one hand, and Tatsukichi
Minobe on the other.60 Hozumi and Uesugi stood for the orthodox
interpretation, while Minobe said in an essay of November 1903
that the prevailing opinion that the monarch is the subject of gov-
ernmental power was an error of juristic theory. “In present-day
juristic thinking, the state alone is the subject of governmental power,
59
Under this rule only 1.1 per cent of the population was entitled to vote. By
amendments of the law the required amount of tax was reduced to 10 ¥ (then 2.17
percent were entitled to vote at the 7th election in 1902), and in 1920 to 3 ¥ (then
5.49 per cent of the population could vote). In 1925 the general franchise for men
of at least 25 years of age was introduced, that allowed 19.44 per cent to vote.
Masayasu Hasegawa, Shòwa kenpòshi (History of the Constitution in the Shòwa Era),
1961, p. 26).
60
The dispute, the arguments, and the consequences of the contention have been
exhaustively described by Frank O. Miller, Minobe Tatsukichi—Interpreter of
Constitutionalism in Japan, 1965.
56 public law
and the monarch is an organ of the state.”61 This emperor-organ

theory (tennò kikan setsu), based on the ‘state personality’ theory of
German scientists, achieved nearly universal academic acceptance
and substantial official sanction.62 The stress lies on ‘academic’ because
the arguing was a professorial topic; the political development towards
the influence of parties and parliamentarism was of the same mind
as Minobe’s theory, but set in motion rather by the general tendency
to supersede the oligarchic bureaucracy by a liberal and potentially
democratic approach.
The academic struggle had almost been forgotten when the mil-
itary-dominated, authoritarian regime became the governing power after
1932, an event which brought the actually very complex and turbulent
affairs of the agonizing ‘Taishò democracy’ to an end. The military
government regarded the rule of the political parties as the cause of
the crisis, and traced it back to the supposed decline of the kokutai
spirit to which Minobe’s Emperor-organ theory had, from the con-
servatives’ point of view, decisively contributed. Minobe had closed
his long academic career with retirement in 1934, but remained a
member of the House of Peers. As the creator and permanent adher-
ent of the organ theory he, though generally appreciated, had incurred
the opposition, even enmity, of academic, bureaucratic and military
factions. Briefly, when his opponents and the military regime saw
the cause of the annoying parliamentarism and the decline of the
kokutai ideology in the party system which jeopardized the sover-
eignty of the tennò, they dug up the Emperor-organ theory and urged
that this theory should be officially condemned and the people made
fully aware of the true kokutai dogma. Minobe was labelled as an
‘academic roamer’. He resigned from his membership of the House
of Peers. Both houses of the diet decided to clarify the kokutai (koku-
tai meichò). On 3 August 1935 the government published the National
Polity Clarification Declaration (kokutai meichò seimei ) with the fol-
lowing statement.
It is beyond question that the supreme power of the reign in the Great
Japanese Empire rests unchallenged with the tennò. Committing to the
view that the sovereignty does not rest with the tennò and the tennò is to
be regarded as an organ for the purpose of exercising this power means
61
Miller (note 60) at 27. At 30–31 the reader will find a concise summary of
the issues between Uesugi and Minobe.
62
Miller, loc. cit. at 35.
to misunderstand totally the fundamentals of our kokutai which has no

equal in the world. To look at the diverse arguments about the fun-
damentals of kokutai in the recent constitutional theory is indeed unbear-
ably regrettable. The government is confident that by the clarification
of the kokutai more and more effectfully its glory will be enhanced.
On 15 October 1935 the government promulgated the Second Dec-
laration of Clarification of kokutai. Pressed by the military the govern-
ment adopted a stronger tone and demanded a strict eradication of
the organ theory. So, the outcome of the struggle was the victory
of the militarists and strengthened their position in the leadership of
state affairs. Although “it is very clear that [the organ theory issue
of 1935] was a purely political question”63 it has been mentioned
here because it was the only serious dispute concerning the Meiji
constitution which in other respects was not materially challenged,
particularly since the courts of law were not authorized to judge the
constitutionality of a law and so estimate and interpret the articles
of the Constitution as regards their substance.64
The creation of the new Constitution (Nihonkoku kenpò) of 3 November

1946 (Appendix B), in force from 3 May 1947, has already been
described repeatedly. The development can be looked up in the
works on the present constitution and will not be explained in detail
here.65 The main features are:
– The influence of American constitutional ideas is conspicuous. The
General Headquarters of the Supreme Commander (US General
Douglas McArthur) for the Allied Powers (SCAP), in which the USA
were all-important, guided the drafting of the new Constitution.66
63
T. Miyazawa, cited in Miller (note 60) at 251.
64
This academic view, at first controversially disputed, had grown to be pre-
dominant and agreed to by the Supreme Court and the Court of Administrative
Litigation. Toshiyoshi Miyazawa, Nihonkoku kenpò (Constitution of Japan), 1958,
p. 667. Hògaku Kyòkai (The Jurisprudence Society) ed., Chùkai Nihonkoku kenpò
(Commentary on the Constitution of Japan), vol. 2, 1954, p. 1210.
65
Valuable material has been collected in ‘Political Reorientation of Japan,
September 1945 to September 1948’, Report of Government Section Supreme
Commander for the Allied Powers, 1949.
66
Other than in Germany after World War II the SCAP itself did not enact
laws and ordinances but advised the Japanese legislator and controlled his legislation.
58 public law
Therefore, opposing political circles regarded the Constitution as

‘imposed’.
– The Constitution was drafted and passed by the diet not as a new
code but as an amendment of the Meiji constitution under its art.
LXXIII.
– In contrast to the Meiji constitution the amendment was enacted
in the course of parliamentary procedure.
– Art. 1 of the new Constitution instituted the sovereignty of the
people.
– The sovereignty of the people collided with the kokutai, and to
preserve this ‘national polity’ was a matter of utmost concern to
the Japanese. The crucial problem was: has the kokutai changed?
The solution was found in an appropriate explanation of kokutai.
The government argued: we should not start from ‘where resides
souvereign power?’ but from the old thesis of experts of constitutional
law: ‘if the kokutai is changed the nation perishes, i.e. it is no longer
the same’. The people are convinced that from the foundation of
Japan until today the identity of the Japanese nation has never
been changed. This notion is always connected with the existence
of the tennò. His political position was different in the various peri-
ods of history; there were periods during which he had no real
political power. As such, the fact that under the new Constitution
he is denied political rights does not mean a change of the koku-
tai. Looked at in this way, it would be impossible for the kokutai
to exist without the tennò, i.e. not simply the existence of an impe-
rial house. The existence of the tennò, however it appears out-
wardly, is in the end nothing but a psychological medium which
unites the people and on which the Japanese nation is founded.
The new constitution does not change anything about that.67
The amendment of the Constitution was passed whether the official
argument convinced the members of the diet or not, there was no
alternative, and after all the politicians had saved the institution
‘tennò ’. But the scientists kept to the view that the sovereignty of the
67
Wilhelm Röhl, Die Japanische Verfassung (The Japanese Constitution), 1963,
p. 49.—See also Shirò Kiyomiya, Kenpò I (Constitution, vol. 1), 1957, p. 139. Kenpò
Chòsakai, Kenpò Seitei no Keika ni Kansuru Shòiinkai (Board of Investigation
into the Constitution, Subcommittee for Research into the Course of the Creation
of the Constitution) ed., Nihonkoku kenpò seitei no yurai (History of the Enactment of
the Japanese Constitution), 1962, p. 432.
emperor was the fundamental nature of the kokutai and therefore

expressed their opinion that the kokutai had been altered; consequently
ardent supporters of the kokutai theory held the event to be a revolution.
– To insert the renunciation of war (art. IX) into the Constitution
was the mutual wish of General MacArthur and the Japanese Prime
Minister Kijùrò Shidehara, the latter possibly being the initiator.68
This article has been disputed continuously, and it is widely known
that political circumstances and considerations in later years had the
effect that the substance of the article has deviated from the origi-
nal notion.
– The rights and duties of the people are regulated similarly to the
constitutions of other modern democratic states under the rule of
law. Of the 31 articles those concerning rights and freedoms are by
far the most numerous. The only general duty is to pay tax. While
the rights of the ‘subjects’ under the Meiji constitution were regarded
as granted by imperial benevolence they are now guaranteed by the
Constitution, and the fundamental human rights are called eternal
and inviolate, arts. XI and XCVII.
– The judiciary has been made a true third power in the state
with the authority of the Supreme Court (saikòsaibansho) to adminis-
ter the judicial affairs (art. LXXVII) and to determine the constitu-
tionality of any law, order, regulation, or official act (art. LXXXI).
Not considering the politically motivated method to amend the
Meiji constitution in 1946, the present constitution, like its prede-
cessor, has never been revised.
68
Klaus Schlichtmann, Shidehara Kijùrò: Staatsmann und Pazifist, eine poli-
tische Biographie (Shidehara Kijùrò: Statesman and Pacifist, a Political Biography),
1998, p. 462 et seqq.
60 public law
APPENDIX A
THE CONSTITUTION OF THE EMPIRE OF JAPAN
(Meiji Kempo)
PREAMBLE
Having, by virtue of the glories of Our Ancestors, ascended the

Throne of lineal succession unbroken for ages eternal; desiring to
promote the welfare of, and to give development to the moral and
intellectual faculties of Our beloved subjects, the very same that have
been favoured with the benevolent care and affectionate vigilance of
Our Ancestors; and hoping to maining the prosperity of the State,
in concert with Our people and with their support, We hereby pro-
mulgate, in pursuance of Our Imperial Rescript of the 12th day of
the 10th month of the 14th year of Meiji, a fundamental law of
State, to exhibit the principles by which We are to be guided in
Our conduct, and to point out what Our descendants and Our sub-
jects and their descendants are forever to conform.
The rights of sovereignty of the State, We have inherited from Our
Ancestors, and We shall bequeath them to Our descendants. Neither
We nor they shall in future fail to wield them, in accordance with
the provisions of the Constitution hereby granted.
We now declare to respect and protect the security of the rights
and of the property of Our people, and to secure to them the com-
plete enjoyment of the same, within the extent of the provisions of
the present Constitution and of the law.
The Teikoku Gikai shall first be convoked for the 23rd year of
Meiji, and the time of its opening shall be the date when the pre-
sent Constitution goes into force.
When, in the future, it may become necessary to amend any of the
provisions of the present Constitution, We or Our successors shall
assume the initiative right, and submit a project for the same to the
Teikoku Gikai. The Teikoku Gikai shall pass its vote upon it, accord-
ing to the conditions imposed by the present Constitution, and in
no otherwise shall Our descendants or Our subjects be permitted to
attempt any alteration thereof.
Our Ministers of State, on Our behalf, shall be held responsible
for the carrying out of the present Constitution, and Our present
and future subjects shall forever assume the duty of allegiance to the
present Constitution.
(His Imperial Majesty’s Sign-Manual.)

(Privy Seal.)
The 11th day of the 2nd month of the 22nd year of Meiji.
(Countersigned) Count Kuroda Kiyotaka,
Minister President of State.
Count Itò Hirobumi,
President of the Privy Council.
Count Òkuma Shigenobu,
Minister of State for Foreign Affairs.
Count Saigò Tsukumichi,
Minister of State for the Navy.
Count Inoue Kaoru,
Minister of State for Agriculture and Commerce.
Count Yamada Akiyoshi,
Minister of State for Justice.
Count Matsukata Masayoshi,
Minister of State for Finance and Minister of State for
Home Affairs.
Count Òyama Iwao,
Minister of State for War.
Viscount Mori Arinori,
Minister of State for Education.
Viscount Enomoto Takeaki,
Minister of State for Communications.
CHAPTER I
THE TENNO
Article I
The Empire of Japan shall be reigned over and governed by a line
of Tenno unbroken for ages eternal.
62 public law
Article II
The Imperial Throne shall be succeeded to by Imperial male descen-
dants, according to the provisions of the Imperial House Law.
Article III
The Tenno is sacred and inviolable.
Article IV
The Tenno stands at the head of the Empire, combining in Himself
the rights of sovereignty and exercises them, according to the pro-
visions of the present Constitution.
Article V
The Tenno exercises the legislative power with the consent of the
Teikoku Gikai.
Article VI
The Tenno gives sanction to laws, and orders them to be promul-
gated and executed.
Article VII
The Tenno convokes the Teikoku Gikai, opens, closes and prorogues
it, and dissolves the House of Representatives.
Article VIII
The Tenno, in consequence of an urgent necessity to maintain pub-
lic safety or to avert public calamities, issues, when the Teikoku Gikai
is not sitting, Imperial Ordinances in the place of law.
Such Imperial Ordinances are to be laid before the Teikoku Gikai
at its next session, and when the Gikai does not approve the said
Ordinances, the Government shall declare them to be invalid for
the future.
Article IX
The Tenno issues or causes to be issued, the Ordinances necessary
for the carrying out of the laws, or for the maintenance of the pub-
lic peace and order, and for the promotion of the welfare of the
subjects. But no Ordinance shall in any way alter any of the exist-
ing laws.
Article X
The Tenno determines the organization of the different branches of
the administration and the salaries of all civil and military officers,
and appoints and dismisses the same. Exceptions especially provided
for in the present Constitution or in other laws, shall be in accor-
dance with the respective provisions (bearing thereon).
Article XI
The Tenno has the supreme command of the Army and Navy.
Article XII
The Tenno determines the organization and peace standing of the
Army and Navy.
Article XIII
The Tenno declares war, makes peace, and concludes treaties.
Article XIV
The Tenno declares a state of siege.
The conditions and effects of a state of siege shall be determined
by law.
Article XV
The Tenno confers titles of nobility, rank, orders and other marks
of honor.
Article XVI
The Tenno orders amnesty, pardon, commutation of punishments
and rehabilitation.
64 public law
Article XVII
A Regency shall be instituted in conformity with the provisions of
the Imperial House Law.
The Regent shall exercise the powers appertaining to the Tenno
in His name.
CHAPTER II
RIGHTS AND DUTIES OF SUBJECTS
Article XVIII
The conditions necessary for being a Japanese subject shall be deter-
mined by law.
Article XIX
Japanese subjects may, according to qualifications determined in laws
or ordinances, be appointed to civil or military or any other public
offices equally.
Article XX
Japanese subjects are amenable to service in the Army or Navy,
according to the provisions of law.
Article XXI
Japanese subjects are amenable to the duty of paying taxes, accord-
ing to the provisions of law.
Article XXII
Japanese subjects shall have the liberty of abode and of changing
the same within the limits of law.
Article XXIII
No Japanese subject shall be arrested, detained tried, or punished,
unless according to law.
Article XXIV
No Japanese subject shall be deprived of his right of being tried by
the judges determined by law.
Article XXV
Except in the cases provided for in the law, the house of no Japanese
subject shall be entered or searched without his consent.
Article XXVI
Except in the cases mentioned in the law, the secrecy of the letters
of every Japanese subject shall remain inviolate.
Article XXVII
The right of property of every Japanese subject shall remain inviolate.
Disposal of property necessary for the public benefit shall be pro-
vided for by law.
Article XXVIII
Japanese subjects shall, within limits not prejudicial to peace and
order, and not antagonistic to their duties as subjects, enjoy free-
dom of religious belief.
Article XXIX
Japanese subjects shall, within limits of law, enjoy the liberty of
speech, writing, publication, public meetings and associations.
Article XXX
Japanese subjects may present petitions, by observing the proper
forms of respect, and by complying with the rules specially provided
for the same.
Article XXXI
The provisions contained in the present Chapter shall not affect the
exercise of the powers appertaining to the Tenno, in times of war
or in cases of a national emergency.
66 public law
Article XXXII
Each and every one of the provisions contained in the preceding
articles of the present Chapter, that are not in conflict with the laws
or the rules and discipline of the Army and Navy, shall apply to the
officers and men of the Army and of the Navy.
CHAPTER III
THE TEIKOKU GIKAI
Article XXXIII
The Teikoku Gikai shall consist of two Houses, a House of Peers
and a House of Representatives.
Article XXXIV
The House of Peers shall, in accordance with the Ordinance con-
cerning the House of Peers, be composed of the members of the
Imperial Family, of the orders of the nobility, and of those persons,
who have been nominated thereto by the Tenno.
Article XXXV
The House of Representatives shall be composed of Members elected
by the people, according to the provisions of the Law of Election.
Article XXXVI
No one can at one and the same time be a Member of both Houses.
Article XXXVII
Every law requires the consent of the Teikoku Gikai.
Article XXXVIII
Both Houses shall vote upon projects of law submitted to it by the
Government, and may respectively initiate projects of law.
Article XXXIX
A Bill, which has been rejected by either the one or the other of the
two Houses, shall not be again brought in during the same session.
Article XL
Both Houses can make representations to the Government, as to
laws or upon any other subject. When, however, such representa-
tions are not accepted, they cannot be made a second time during
the same session.
Article XLI
The Teikoku Gikai shall be convoked every year.
Article XLII
A session of the Teikoku Gikai shall last during three months. In
case of necessity, the duration of a session may be prolonged by
Imperial Order.
Article XLIII
When urgent necessity arises, an extraordinary session may be con-
voked, in addition to the ordinary one.
The duration of an extraordinary session shall be determined by
Imperial Order.
Article XLIV
The opening, closing, prolongation of session and the prorogation
of the Teikoku Gikai, shall be effected simultaneously for both Houses.
In case the House of Representatives has been ordered to dis-
solve, the House of Peers shall at the same time be prorogued.
Article XLV
When the House of Representatives has been ordered to dissolve,
Members shall be caused by Imperial Order to be newly elected,
and the new House shall be convoked within five months from the
day of dissolution.
68 public law
Article XLVI
No debate can be opened and no vote can be taken in either House
of the Teikoku Gikai, unless not less than one third of the whole
number of Members thereof are present.
Article XLVII
Votes shall be taken in both Houses by absolute majority. In the
case of a tie vote, the President shall have the casting vote.
Article XLVIII
The deliberations of both Houses shall be held in public. The delib-
erations may, however, upon demand of the Government or by res-
olution of the House, be held in secret sitting.
Article XLIX
Both Houses of the Teikoku Gikai may respectively present addresses
to the Tenno.
Article L
Both Houses may receive petitions presented by subjects.
Article LI
Both Houses may enact, besides what is provided for in the present
Constitution and in the Law of the Houses, rules necessary for the
management of their internal affairs.
Article LII
No Member of either House shall be held responsible outside the
respective House, for any opinion uttered or for any vote given in
the House. When, however, a Member himself has given publicity
to his opinions by public speech, by documents in print or in writ-
ing, or by any other similar means, he shall, in the matter, be
amenable to the general law.
Article LIII
The Members of both Houses shall, during the session, be free from
arrest, unless with the consent of the Houses, except in cases of
flagrant delicts, or of offences connected with a state of internal com-
motion or with a foreign trouble.
Article LIV
The Ministers of State and the Delegates of the Government may,
at any time, take seats and speak in either House.
CHAPTER IV
THE MINISTERS OF STATE AND

THE PRIVY COUNCIL
Article LV
The respective Ministers of State shall give their advice to the Tenno,
and be responsible for it.
All Laws, Imperial Ordinances and Imperial Rescripts of what-
ever kind, that relate to the affairs of the State, require the counter-
signature of a Minister of State.
Article LVI
The Privy Councillors shall, in accordance with the provisions for
the organization of the Privy Council, deliberate upon important
matters of State, when they have been consulted by the Tenno.
CHAPTER V
THE JUDICATURE
Article LVII
The Judicature shall be exercised by the Courts of Law according
to law in the name of the Tenno.
The organization of the Courts of Law shall be determined by law.
70 public law
Article LVIII
The judges shall be appointed from among those, who possess proper
qualifications according to law.
No judge shall be deprived of his position, unless by way of crim-
inal sentence or disciplinary punishment.
Rules for disciplinary punishment shall be determined by law.
Article LIX
Trials and judgements of a Court shall be conducted publicly.
When, however, there exists any fear, that such publicity may be
prejudicial to peace and order, or to the maintenance of public
morality, the public trial may be suspended by provision of law or
by the decision of the Court of law.
Article LX
All matters, that fall within the competency of a special Court, shall
be specially provided for by law.
Article LXI
No suit at law, which relates to rights alleged to have been infringed
by the illegal measures of the administrative authorities, and which
shall come within the competency of the Court of Administrative
Litigation specially established by law, shall be taken cognizance of
by a Court of Law.
CHAPTER VI
FINANCE
Article LXII
The imposition of a new tax or the modification of the rates (of an
existing one) shall be determined by law.
However, all such administrative fees or other revenue having the
nature of compensation shall not fall within the category of the above
clause.
The raising of national loans and the contracting of other liabilities

to the charge of the National Treasury, except those that are provided
for in the Budget, shall require the consent of the Teikoku Gikai.
Article LXIII
The taxes levied at present shall, in so far as they are not remod-
elled by a new law, be collected according to the old system.
Article LXIV
The expenditure and revenue of the State require the consent of the
Teikoku Gikai by means of an annual Budget.
Any and all expenditures overpassing the appropriations set forth
in the Titles and Paragraphs of the Budget, or that are not pro-
vided for in the Budget, shall subsequently require the approbation
of the Teikoku Gikai.
Article LXV
The Budget shall be first laid before the House of Representatives.
Article LXVI
Expenditures of the Imperial House shall be defrayed every year out
of the National Treasury, according to the present fixed amount for
the same, and shall not require the consent thereto of the Teikoku
Gikai, except in case an increase thereof is found necessary.
Article LXVII
Those already fixed expenditures based by the Constitution upon
the powers appertaining to the Tenno, and such expenditures as
may have arisen by the effect of law, or that appertain to the legal
obligations of the Government, shall be neither rejected nor reduced
by the Teikoku Gikai, without the concurrence of the Government.
Article LXVIII
In order to meet special requirements, the Government may ask the
consent of the Teikoku Gikai to a certain amount as a Continuing
Expenditure Fund, for a previously fixed number of years.
72 public law
Article LXIX
In order to supply deficiencies, which are unavoidable, in the Budget,
and to meet requirements unprovided for in the same, a Reserve
Fund shall be provided for in the Budget.
Article LXX
When the Teikoku Gikai cannot be convoked, owing to the exter-
nal or internal condition of the country, in case of urgent need for
the maintenance of public safety, the Government may take all nec-
essary financial measures, by means of an Imperial Ordinance.
In the case mentioned in the preceding clause, the matter shall
be submitted to the Teikoku Gikai at its next session, and its appro-
bation shall be obtained thereto.
Article LXXI
When the Teikoku Gikai has not voted on the Budget, or when the
Budget has not been brought into actual existence, the Government
shall carry out the Budget of the preceding year.
Article LXXII
The final account of the expenditures and revenue of the State shall
be verified and confirmed by the Board of Audit, and it shall be
submitted by the Government to the Teikoku Gikai, together with
the report of verification of the said Board.
The organization and competency of the Board of Audit shall be
determined by law separately.
CHAPTER VII
SUPPLEMENTARY RULES
Article LXXIII
When it has become necessary in future to amend the provisions of
the present Constitution, a project to that effect shall be submitted
to the Teikoku Gikai by Imperial Order.
In the above case, neither House can open the debate, unless not
less than two thirds of the whole number of Members are present,
and no amendment can be passed, unless a majority of not less than
two-thirds of the Members present is obtained.
Article LXXIV
No modification of the Imperial House Law shall be required to be
submitted to the deliberation of the Teikoku Gikai.
No provision of the present Constitution can be modified by the
Imperial House Law.
Article LXXV
No modification can be introduced into the Constitution, or into the
Imperial House Law, during the time of a Regency.
Article LXXVI
Existing legal enactments, such as laws, regulations, Ordinances, or
by whatever names they may be called, shall, so far as they do not
conflict with the present Constitution, continue in force.
All existing contracts or orders, that entail obligations upon the
Government, and that are connected with expenditure, shall come
within the scope of Article LXVII.
74 public law
APPENDIX B
THE CONSTITUTION OF JAPAN

NOVEMBER 3, 1946
PREFACE
We, the Japanese people, acting through our duly elected representatives
in the National Diet, determined that we shall secure for ourselves
and our posterity the fruits of peaceful cooperation with all nations
and the blessings of liberty throughout this land, and resolved that
never again shall we be visited with the horrors of war through the
action of government, do proclaim that sovereign power resides with
the people and do firmly establish this Constitution. Government is
a sacred trust of the people, the authority for which is derived from
the people, the powers of which are exercised by the representatives
of the people, and the benefits of which are enjoyed by the people.
This is a universal principle of mankind upon which this Constitution
is founded. We reject and revoke all constitutions, laws ordinances,
and rescripts in conflict herewith. We, the Japanese people, desire
peace for all time and are deeply conscious of the high ideals con-
trolling human relationship and we have determined to preserve our
security and existence, trusting in the justice and faith of the peace-
loving peoples of the world. We desire to occupy an honored place
in an international society striving for the preservation of peace, and
the banishment of tyranny and slavery, oppression and intolerance
for all time from the earth. We recognize that all peoples of the
world have the right to live in peace, free from fear and want. We
believe that no nation is responsible to itself alone, but that laws of
political morality are universal; and that obedience to such laws is
incumbent upon all nations who would sustain their own sovereignty
and justify their sovereign relationship with other nations. We, the
Japanese people, pledge our national honor to accomplish these high
ideals and purposes with all our resources.
CHAPTER I
THE EMPEROR
Article 1
The Emperor shall be the symbol of the State and the unity of the
people, deriving his position from the will of the people with whom
resides sovereign power.
Article 2
The Imperial Throne shall be dynastic and succeeded to in accord-
ance with the Imperial House Law passed by the Diet.
Article 3
The advice and approval of the Emperor in matters of state, and
the Cabinet shall be responsible therefore.
Article 4
The Emperor shall perform only such acts in matters of state as are
provided for in this Constitution and he shall not have powers related
to government. 2) The Emperor may delegate the performance of
his acts in matters of state as may be provided for by law.
Article 5
When, in accordance with the Imperial House Law, a Regency is
established, the Regent shall perform his acts in matters of state in
the Emperor’s name. In this case, paragraph one of the preceding
Article will be applicable.
Article 6
The Emperor shall appoint the Prime Minister as designated by the
Emperor shall appoint the Chief Judge of the Supreme Court as
designated by the Cabinet.
76 public law
Article 7
The Emperor shall, with the advice and approval of the Cabinet,
perform the following acts in matters of state on behalf of the peo-
ple: (1) Promulgation of amendments of the constitution, laws, cab-
inet orders and treaties. (2) Convocation of the Diet. (3) Dissolution
of the House of Representatives. (4) Proclamation of general elec-
tion of members of the Diet. (5) Attestation of the appointment and
dismissal of Ministers of State and other officials as provided for by
law, and of full powers and credentials of Ambassadors and Ministers.
(6) Attestation of general and special amnesty, commutation of pun-
ishment, reprieve, and restoration of rights. (7) Awarding of honors.
(8) Attestation of instruments of ratification and other diplomatic doc-
uments as provided for by law. (9) Receiving foreign ambassadors
and ministers. (10) Performance of ceremonial functions.
Article 8
No property can be given to, or received by, the Imperial House,
nor can any gifts be made therefrom, without the authorization of
the Diet.
CHAPTER II
RENUNCIATION OF WAR
Article 9
Aspiring sincerely to an international peace based on justice and
order, the Japanese people forever renounce war as a sovereign right
of the nation and the threat or use of force as means of settling
international disputes. 2) In order to accomplish the aim of the pre-
ceding paragraph, land, sea, and air forces, as well as other war
potential, will never be maintained. The right of belligerency of the
state will not be recognized.
CHAPTER III
RIGHTS AND DUTIES OF THE PEOPLE
Article 10
The conditions necessary for being a Japanese national shall be deter-
mined by law.
Article 11
The people shall not be prevented from enjoying any of the funda-
mental human rights. These fundamental human rights guaranteed
to the people by this Constitution shall be conferred upon the peo-
ple of this and future generations as eternal and inviolate rights.
Article 12
The freedoms and rights guaranteed to the people by this Constitution
shall be maintained by the constant endeavor of the people, who
shall refrain from any abuse of these freedoms and rights and shall
always be responsible for utilizing them for the public welfare.
Article 13
All of the people shall be respected as individuals. Their right to
life, liberty, and the pursuit of happiness shall, to the extent that it
does not interfere with the public welfare, be the supreme consid-
eration in legislation and in other governmental affairs.
Article 14
All of the people are equal under the law and there shall be no dis-
crimination in political, economic or social relations because of race,
creed, sex, social status or family origin. 2) Peers and peerage shall
not be recognized. 3) No privilege shall accompany any award of
honor, decoration or any distinction, nor shall any such award be
valid beyond the lifetime of the individual who now holds or here-
after may receive it.
78 public law
Article 15
The people have the inalienable right to choose their public officials
and to dismiss them. 2) All public officials are servants of the whole
community and not of any group thereof. 3) Universal adult suffrage
is guaranteed with regard to the election of public officials. 4) In all
elections, secrecy of the ballot shall not be violated. A voter shall
not be answerable, publicly or privately, for the choice he has made.
Article 16
Every person shall have the right of peaceful petition for the redress
of damage, for the removal of public officials, for the enactment,
repeal or amendment of laws, ordinances or regulations and for other
matters; nor shall any person be in any way discriminated against
for sponsoring such a petition.
Article 17
Every person may sue for redress as provided by law from the State
or a public entity, in case he has suffered damage through illegal
act of any public official.
Article 18
No person shall be held in bondage of any kind. Involuntary servi-
tude, except as punishment for crime, is prohibited.
Article 19
Freedom of thought and conscience shall not be violated.
Article 20
Freedom of religion is guaranteed to all. No religious organization
shall receive any privileges from the State, nor exercise any politi-
cal authority. 2) No person shall be compelled to take part in any
religious acts, celebration, rite or practice. 3) The State and its organs
shall refrain from religious education or any other religious activity.
Article 21
Freedom of assembly and association as well as speech, press and
all other forms of expression are guaranteed. 2) No censorship shall
be maintained, nor shall the secrecy of any means of communica-
tion be violated.
Article 22
Every person shall have freedom to choose and change his residence
and to choose his occupation to the extent that it does not interfere
with the public welfare. 2) Freedom of all persons to move to a for-
eign country and to divest themselves of their nationality shall be
inviolate.
Article 23
Academic freedom is guaranteed.
Article 24
Marriage shall be based only on the mutual consent of both sexes
and it shall be maintained through mutual cooperation with the
equal rights of husband and wife as a basis. 2) With regard to choice
of spouse, property rights, inheritance, choice of domicile, divorce
and other matters pertaining to marriage and the family, laws shall
be enacted from the standpoint of individual dignity and the essen-
tial equality of the sexes.
Article 25
All people shall have the right to maintain the minimum standards
of wholesome and cultured living. 2) In all spheres of life, the State
shall use its endeavors for the promotion and extension of social wel-
fare and security, and of public health.
Article 26
All people shall have the right to receive an equal education corre-
spondent to their ability, as provided for by law. 2) All people shall
be obligated to have all boys and girls under their protection receive
ordinary education as provided for by law. Such compulsory edu-
cation shall be free.
80 public law
Article 27
All people shall have the right and the obligation to work. 2) Standards
for wages, hours, rest and other working conditions shall be fixed
by law. 3) Children shall not be exploited.
Article 28
The right of workers to organize and to bargain and act collectively
is guaranteed.
Article 29
The right to own or to hold property is inviolable. 2) Property rights
shall be defined by law, in conformity with the public welfare. 3)
Private property may be taken for public use upon just compensa-
tion therefore.
Article 30
The people shall be liable to taxation as provided for by law.
Article 31
No person shall be deprived of life or liberty, nor shall any other
criminal penalty be imposed, except according to procedure estab-
lished by law.
Article 32
No person shall be denied the right of access to the courts.
Article 33
No person shall be apprehended except upon warrant issued by a
competent judicial officer which specifies the offense with which the
person is charged, unless he is apprehended, the offense being
committed.
Article 34
No person shall be arrested or detained without being at once
informed of the charges against him or without the immediate privilege
of counsel; nor shall he be detained without adequate cause; and

upon demand of any person such cause must be immediately shown
in open court in his presence and the presence of his counsel.
Article 35
The right of all persons to be secure in their homes, papers and
effects against entries, searches and seizures shall not be impaired
except upon warrant issued for adequate cause and particularly
describing the place to be searched and things to be seized, or except
as provided by Article 33.2) Each search or seizure shall be made
upon separate warrant issued by a competent judicial officer.
Article 36
The infliction of torture by any public officer and cruel punishments
are absolutely forbidden.
Article 37
In all criminal cases the accused shall enjoy the right to a speedy
and public trial by an impartial tribunal. 2) He shall be permitted
full opportunity to examine all witnesses, and he shall have the right
of compulsory process for obtaining witnesses on his behalf at pub-
lic expense. 3) At all times the accused shall have the assistance of
competent counsel who shall, if the accused is unable to secure the
same by his own efforts, be assigned to his use by the State.
Article 38
No person shall be compelled to testify against himself. 2) Confession
made under compulsion, torture or threat, or after prolonged arrest
or detention shall not be admitted in evidence. 3) No person shall
be convicted or punished in cases where the only proof against him
is his own confession.
Article 39
No person shall be held criminally liable for an act which was law-
ful at the time it was committed, or of which he had been acquit-
ted, nor shall he be placed in double jeopardy.
82 public law
Article 40
Any person may, in case he is acquitted after he has been arrested
or detained, sue the State for redress as provided for by law.
CHAPTER IV
THE DIET
Article 41
The Diet shall be the highest organ of the state power, and shall
be the sole law-making organ of the State.
Article 42
The Diet shall consist of two Houses, namely the House of Repre-
sentatives and the House of Councillors.
Article 43
Both Houses shall consist of elected members, representative of all
the people. 2) The number of the members of each House shall be
fixed by law.
Article 44
The qualifications of members of both Houses and their electors
shall be fixed by law. However, there shall be no discrimination
because of race, creed, sex, social status, family origin, education,
property or income.
Article 45
The term of office of members of the House of Representatives shall
be four years. However, the term shall be terminated before the full
term is up in case the House of Representatives is dissolved.
Article 46
The term of office of members of the House of Councillors shall be
six years, and election for half the members shall take place every
three years.
Article 47
Electoral districts, method of voting and other matters pertaining to
the method of election of members of both Houses shall be fixed
by law.
Article 48
No person shall be permitted to be a member of both Houses
simultaneously.
Article 49
Members of both Houses shall receive appropriate annual payment
from the national treasury in accordance with law.
Article 50
Except in cases as provided for by law, members of both Houses
shall be exempt from apprehension while the Diet is in session, and
any members apprehended before the opening of the session shall
be freed during the term of the session upon demand of the House.
Article 51
Members of both Houses shall not be held liable outside the House
for speeches, debates or votes cast inside the House.
Article 52
An ordinary session of the Diet shall be convoked once per year.
Article 53
The Cabinet may determine to convoke extraordinary sessions of
the Diet. When a quarter or more of the total members of either
House makes the demand, the Cabinet must determine on such
convocation.
Article 54
When the House of Representatives is dissolved, there must be a
general election of members of the House of Representatives within
forty(40) days from the date of dissolution, and the Diet must be
84 public law
convoked within thirty (30) days from the date of the election. 2)
When the House of Representatives is dissolved, the House of
Councillors is closed at the same time. However, the Cabinet may,
in time of national emergency, convoke the House of Councillors in
emergency session. 3) Measures taken at such session as mentioned
in the proviso of the preceding paragraph shall be provisional and
shall become null and void unless agreed to by the House of
Representatives within a period of ten (10) days after the opening of
the next session of the Diet.
Article 55
Each House shall judge disputes related to qualifications of its mem-
bers. However, in order to deny a seat to any member, it is neces-
sary to pass a resolution by a majority of two-thirds or more of the
members present.
Article 56
Business cannot be transacted in either House unless one-third or
more of total membership is present. 2) All matters shall be decided,
in each House, by a majority of those present, except as elsewhere
provided for in the Constitution, and in case of a tie, the presiding
officer shall decide the issue.
Article 57
Deliberation in each House shall be public. However, a secret meet-
ing may be held where a majority of two-thirds or more of those
members present passes a resolution therefor. 2) Each House shall
keep a record of proceedings. This record shall be published and
given general circulation, excepting such parts of proceedings of secret
session as may be deemed to require secrecy. 3) Upon demand of
one-fifth or more of the members present, votes of the members on
any matter shall be recorded in the minutes.
Article 58
Each House shall select its own president and other officials. 2) Each
House shall establish its rules pertaining to meetings, proceedings
and internal discipline, and may punish members for disorderly con-
duct. However, in order to expel a member, a majority of two-thirds

or more of those members present must pass a resolution thereon.
Article 59
A bill becomes a law on passage by both Houses, except as other-
wise provided for by the Constitution. 2) A bill, which is passed by
the House of Representatives, and upon which the House of Councillors
makes a decision different from that of the House of Representatives,
becomes a law when passed a second time by the House of
Representatives by a majority of two-thirds or more of the members
present. 3) The provision of the preceding paragraph does not pre-
clude the House of Representatives from calling for the meeting of
a joint committee of both Houses, provided for by law. 4) Failure
by the House of Councillors to take final action within sixty (60) days
after receipt of a bill passed by the House of Representatives, time
in recess excepted, may be determined by the House of Representatives
to constitute a rejection of the said bill by the House of Councillors.
Article 60
The budget must first be submitted to the House of Representatives.
2) Upon consideration of the budget, when the House of Councillors
makes a decision different from that of the House of Representatives,
and when no agreement can be reached even through a joint com-
mittee of both Houses, provided for by law, or in the case of fail-
ure by the House of Councillors to take final action within thirty (30)
days, the period of recess excluded, after the receipt of the budget
passed by the House of Representatives, the decision of the House
of Representatives shall be the decision of the Diet.
Article 61
The second paragraph of the preceding Article applies also the Diet
approval required for the conclusion of treaties.
Article 62
Each House may conduct investigations in relation to government,
and may demand the presence and testimony of witnesses, and the
production of records.
86 public law
Article 63
The Prime Minister and other Ministers of State may, at any time,
appear in either House for the purpose of speaking on bills, regard-
less of whether they are members of the House or not. They must
appear when their presence is required in order to give answers or
explanations.
Article 64
The Diet shall set up an impeachment court from among the mem-
bers of both Houses for the purposes of trying those judges against
whom removal proceedings have been instituted. 2) Matters relating
to impeachment shall be provided for by law.
CHAPTER V
THE CABINET
Article 65
Executive power shall be vested in the Cabinet.
Article 66
The Cabinet shall consist of the Prime Minister, who shall be its
head, and other Ministers of State, as provided for by law. 2) The
Prime Minister and other Ministers of State must be civilians. 3)
The Cabinet shall, in the exercise of executive power, be collectively
responsible to the Diet.
Article 67
The Prime Minister shall be designated from among the members
of the Diet by a resolution of the Diet. This designation shall pre-
cede all other business. 2) If the House of Representatives and the
House of Councillors disagree and if no agreement can be reached
even through a joint committee of both Houses, provided for by
law, or the House of Councillors fails to make designation within
ten (10) days, exclusive of the period of recess, after the House of
Representatives has made designation, the decision of the House of
Representatives shall be the decision of the Diet.
Article 68
The Prime Minister shall appoint the Ministers of State. However,
a majority of their number must be chosen from among the mem-
bers of the Diet. 2) The Prime Minister may remove the Ministers
of State as he chooses.
Article 69
If the House of Representatives passes a non-confidence resolution,
or rejects a confidence resolution, the Cabinet shall resign en masse,
unless the House of Representatives is dissolved within ten (10) days.
Article 70
When there is a vacancy in the post of Prime Minister, or upon the
first convocation of the Diet after a general election of members of
the House of Representatives, the Cabinet shall resign en masse.
Article 71
In the cases mentioned in the two preceding Articles, the Cabinet
shall continue its functions until the time when a new Prime Minister
is appointed.
Article 72
The Prime Minister, representing the Cabinet, submits bills, reports
on general national affairs and foreign relations to the Diet and exer-
cises control and supervision over various administrative branches.
Article 73
The Cabinet shall, in addition to other general administrative func-
tions, perform the following functions: (1) Administer the law faith-
fully; conduct affairs of state. (2) Manage foreign affairs. (3) Conclude
treaties. However, it shall obtain prior or, depending on circum-
stances subsequent approval of the Diet. (4) Administer the civil ser-
vice, in accordance with standards established by law. (5) Prepare
the budget, and present it to the cabinet orders in order to execute
the provisions of this Constitution and of the law. However, it can-
not include penal provisions in such cabinet orders unless authorized
by such law. (7) Decide on general amnesty, special amnesty, com-
mutation of punishment, reprieve, and restoration of rights.
88 public law
Article 74
All laws and cabinet orders shall be signed by the competent Minister
of State and countersigned by the Prime Minister.
Article 75
The Ministers of State shall not, during their tenure of office, be
subject to legal action without the consent of the Prime Minister.
However, the right to take that action is not impaired hereby.
CHAPTER VI
JUDICIARY
Article 76
The whole judicial power is vested in a Supreme Court and in such
inferior courts as are established by law. 2) No extraordinary tri-
bunal shall be established, nor shall any organ or agency of the
Executive be given final judicial power. 3) All judges shall be inde-
pendent in the exercise of their conscience and shall be bound only
by this Constitution and the laws.
Article 77
The Supreme Court is vested with the rule-making power under
which it determines the rules of procedure and of practice, and of
matters relating to attorneys, the internal discipline of the courts and
the administration of judicial affairs. 2) Public procurators shall be
subject to the rule-making power of the Supreme Court. 3) The
Supreme Court may delegate the power to make rules for inferior
courts to such courts.
Article 78
Judges shall not be removed except by public impeachment unless
judicially declared mentally or physically incompetent to perform
official duties. No disciplinary action against judges shall be admin-
istered by any executive organ or agency.
Article 79
The Supreme Court shall consist of a Chief Judge and such number
of judges as may be determined by law; all such judges excepting
the Chief Judge shall be appointed by the Cabinet. 2) The appointment
of the judges of the Supreme Court shall be reviewed by the people
at the first general election of members of the House of Representatives
following their appointment, and shall be reviewed again at the first
general election of members of the House of Representatives after
a lapse of ten (10) years, and in the same manner thereafter.
Article 80
The judges of the inferior courts shall be appointed by the Cabinet
from a list of persons nominated by the Supreme Court. All such
judges shall hold office for a term of ten (10) years with privilege of
reappointment, provided that they shall be retired upon the attain-
ment of the age as fixed by law. 2) The judges of the inferior courts
shall receive, at regular stated intervals, adequate compensation which
shall not be decreased during their terms of office.
Article 81
The Supreme Court is the court of last resort with power to determine
the constitutionality of any law, order, regulation or official act.
Article 82
Trials shall be conducted and judgement declared publicly. 2) Where
a court unanimously determines publicity to be dangerous to pub-
lic order or morals, a trial may be conducted privately, but trials of
political offenses, offenses involving the press or cases wherein the
rights of people as guaranteed in CHAPTER III of this Constitution
are in question shall always be conducted publicly.
90 public law
CHAPTER VII
FINANCE
Article 83
The power to administer national finances shall be exercised as the
Diet shall determine.
Article 84
No new taxes shall be imposed or existing ones modified except by
law or under such conditions as law may prescribe.
Article 85
No money shall be expended, nor shall the State obligate itself,
except as authorized by the Diet.
Article 86
The Cabinet shall prepare and submit to the Diet for its consider-
ation and decision a budget for each fiscal year.
Article 87
In order to provide for unforeseen deficiencies in the budget, a
reserve fund may be authorized by the Diet to be expended upon
the responsibility of the Cabinet must get subsequent approval of
the Diet for all payments from the reserve fund.
Article 88
All property of the Imperial Household shall belong to the State.
All expenses of the Imperial Household shall be appropriated by the
Diet in the budget.
Article 89
No public money or other property shall be expended or appropri-
ated for the use, benefit or maintenance of any religious institution
or association, or for any charitable, educational or benevolent enter-
prises not under the control of public authority.
Article 90
Final accounts of the expenditures and revenues of the State shall
be audited annually by a Board of Audit and submitted by the Diet,
together with the statement of audit, during the fiscal year immedi-
ately following the period covered. 2) The organization and com-
petency of the Board of Audit shall be determined by law.
Article 91
At regular intervals and at least annually the Diet and the people
on the state of national finances.
CHAPTER VIII
LOCAL SELF-GOVERNMENT
Article 92
Regulations concerning organization and operations of local public
entities shall be fixed by law in accordance with the principle of
local autonomy.
Article 93
The local public entities shall establish assemblies as their delibera-
tive organs, in accordance with law. 2) The chief executive officers
of all local public entities, the members of their assemblies, and such
other local officials as may be determined by law shall be elected
by direct popular vote within their several communities.
Article 94
Local public entities shall have the right to manage their property,
affairs and administration and to enact their own regulations within law.
Article 95
A special law, applicable only to one local public entity, cannot be
enacted by the Diet without the consent of the majority of the voters
of the local public entity concerned, obtained in accordance with law.
92 public law
CHAPTER IX
AMENDMENTS
Article 96
Amendments to this Constitution shall be initiated by the Diet,
through a concurring vote of two-thirds or more of all the members
of each House and shall thereupon be submitted to the people for
ratification, which shall require the affirmative vote of a majority of
all votes cast thereon, at a special referendum or at such election as
the Diet shall specify. 2) Amendments when so ratified shall imme-
diately be promulgated by the Emperor in the name of the people,
as an integral part of this Constitution.
CHAPTER X
SUPREME LAW
Article 97
The fundamental human rights by this Constitution guaranteed to
the people of Japan are fruits of the age-old struggle of man to be
free; they have survived the many exacting tests for durability and
are conferred upon this and future generations in trust, to be held
for all time inviolate.
Article 98
This Constitution shall be the supreme law of the nation and no
law, ordinance, imperial rescript or other act of government, or part
thereof, contrary to the provisions hereof, shall have legal force or
validity. 2) The treaties concluded by Japan and established laws of
nations shall be faithfully observed.
Article 99
The Emperor or the Regent as well as Ministers of State, members
of the Diet, judges, and all other public officials have the obligation
to respect and uphold this Constitution.
CHAPTER XI
SUPPLEMENTARY PROVISIONS
Article 100
This Constitution shall be enforced as from the day when the period
of six months will have elapsed counting from the day of its pro-
mulgation. 2) The enactment of laws necessary for the enforcement
of this Constitution, the election of members of the House of Coun-
cillors and the procedure for the convocation of the Diet and other
preparatory procedures necessary for the enforcement of this Cons-
titution may be executed before the day prescribed in the preceding
paragraph.
Article 101
If the House of Councillors is not constituted before the effective
date of this Constitution, the House of Representatives shall func-
tion as the Diet until such time as the House of Councillors shall
be constituted.
Article 102
The term of office for half the members of the House of Councillors
serving in the first term under this Constitution shall be three years.
Members falling under this category shall be determined in accord-
ance with law.
Article 103
The Ministers of State, members of the House of Representatives,
and judges in office on the effective date of this Constitution, and
all other public officials who occupy positions corresponding to such
positions as are recognized by this Constitution shall not forfeit their
positions automatically on account of the enforcement of this
Constitution unless otherwise specified by law. When, however, suc-
cessors are elected or appointed under the provisions of this Con-
stitution, they shall forfeit their positions as a matter of course.
94 public law
THE CONSTITUTION OF JAPAN (NOVEMBER 3, 1946)
I rejoice that the foundation for the construction of a new Japan

has been laid according to the will of the Japanese people, and
hereby sanction and promulgate the amendments of the Imperial
Japanese Constitution effected following the consultation with the
Privy Council and the decision of the Imperial Diet made in accord-
ance with Article 73 of the said Constitution.
Signed:
Hirohito, Seal of the Emperor, This third day of the eleventh month
of the twenty-first year of Showa (November 3, 1946).
Countersigned:
Prime Minister and concurrently Minister for Foreign Affairs
Yoshida Shigeru,
Minister of State
Baron Shidehara Kijùrò,
Minister of Justice
Kimura Tokutarò,
Minister for Home Affairs
Òmura Seiichi,
Minister of Education
Tanaka Kòtarò,
Minister of Agriculture and Forestry
Wada Hiroo,
Minister of State
Saitò Takao,
Minister of Communication
Hitotsumatsu Sadayoshi,
Minister of Commerce and Industry
Hoshijima Jirò,
Minister of Welfare
Kawai Yoshinari,
Minister of State
Uehara Etsujirò,
Minister of Transportation
Hiratsuka Tsunejirò,
Minister of Finance
Ishibashi Tanzan,
Minister of State
Kanamori Tokujirò,
Minister of State
Zen Keinosuke
96 public law
2.2 Administrative Law
I. Prior to the Meiji restoration the three powers of the state were
not separated; legislation, executive, and judicature were combined to
form the administration. The first measure of the new regime to organ-
ize the apparatus of managing state affairs was the creation of the
‘three offices’ on 3 January 1868.1 This order did not give specific
directives for action and, therefore, an edict shortly afterwards ruled
that in all domains the commendable practices and worthy laws of
the Tokugawa government were to be maintained without change.2
When, in February 1868, the three offices were subdivided into eight
secretariats, spheres of responsibility appeared as in the seven sections
four weeks before, which are disregarded here because of their short-
term existence. The head of the administration (sòsai ) decided all
general matters, his office was the Head Secretariat. The other secre-
tariats dealt with Shintoism, domestic, foreign, military, financial, judi-
cial,3 and organizational4 affairs. The senior councillors controlled the
work of the secretariats and resolved problems, the junior councillors
executed the business of the individual secretariats. This short-lived
system did not see the separation of powers.
For the first time the ‘Document on the Government System’
(seitaisho) of 17 June 1868 ordered the separation of powers: legislation,
executive, and judicature.5 Simultaneously the government was reor-
1
Imperial Restoration Order, see chapter ‘Constitutional Law’.
2
R. Ishii, Meiji bunkashi, 2, hòseihen (Cultural History of the Meiji Era, vol. 2,
Legal System), 1954, p. 64. Adapted translation by W.J. Chambliss, Japanese
Legislation in the Meiji Era, 1958, p. 80. K. Hosokawa, Nihon kindai hòseishi (A
History of Modern Japanese Law), 1961, pp. 12, 61.
3
Keihòjimu, literally ‘criminal law affairs’. The business was criminal justice, that
means prosecution, investigation, proceedings, and judgement in criminal cases; civil
cases were not matters of interest or importance to the state. The judicial secre-
tariat was one part of the predecessors of the Ministry of Justice.
4
Seidojimu, literally: affairs concerning the system. ‘System’ means the structure,
organization, and institutions of the state. Because that is regulated by laws and
ordinances the duty of the responsible secretariat was legislation. It may also be
called ‘Legal Secretariat’.
5
See chapter ‘Constitutional Law’. A detailed report on the administrative system
in the first twenty years of the Meiji era has been given by A. Satò, Gyòsei seido
(Administrative System), in Kòza Nihon kindai hò hattatsushi (Lectures on the History
of the Development of Modern Japanese Law), vol. 9 (1960), pp. 63–125.
administrative law 97
ganized in the form of the dajòkan, type I, with seven offices (kan),
one of which was the Executive Office ( gyòseikan) whose general
responsibility was to carry out all administration. Its function could
not clearly be kept apart from that of the giseikan which was des-
tined for legislation,6 and because of the fact that the separation of
powers under the seitaisho was not completely achieved—due to the
growing dominance of the executive, the giseikan was soon abolished.7
On 15 August 1869 the Executive Office vanished, together with
type I of the dajòkan, after an existence of fourteen months. It was
succeeded by type II8 of the dajòkan, under which six ministries (shò)
were set up for the following fields of activity: domestic,9 finance,
military, judicial, Imperial household, and foreign affairs. Domestic
affairs were handled by the minbushò (Home Ministry or Ministry of
the Interior), this was modelled on an ancient code. The area of
responsibility was extended to the superintendance of the domains,
and actually the Ministry had to deal with family registers, postal
affairs, mining, and the relief of poor and old people. On 16 Septem-
ber 1869 four bureaus—taxes, control over accounts, commerce and
mining—were transferred from the Finance Ministry to the Home
Ministry.10 But this ministry did not appear as a distinct department
because the minister and the vice-minister were at the same time
minister and vice-minister respectively of the Ministry of Finance
(òkurashò), with the effect that the two ministries seemed to be one
and the same, the power of which became so immense that it gained
dominance in the government and the balance with the other min-
istries was destroyed. Due to growing criticism of this situation, the
6
See chapter ‘Constitutional Law’.
7
Its successors were the kògisho and shùgiin, see chapter ‘Constitutional Law’.
8
For the three types of the dajòkan see chapter ‘Notes on the Staff of the Ministry
of Justice’.
9
Minbushò. Similar departments had existed also in the foregoing systems: naikoku-
jimuka (10 February–13 March 1868), naikokujimukyoku (13 March–11 June 1868),
minbukan (19 May–15 August 1869). The naikokujimukyoku had no immediate succes-
sor, its duties had been taken over by the Accounting Office (kaikeikan); there were
two bureaus for postal services and for civil administration, the last of which did
not take up any activity. However, the increasing negotiations with the newly cre-
ated prefectures called for an ordinary office with exclusive responsibility, and there-
fore the minbukan (Civil Office) was set up as the last office of the dajòkan type I.
Its duty was to control and make decisions concerning authority of the prefectures,
family registers, postal services, bridges, ways, water facilities, cultivation of land,
production, relief of the poor and old people. Satò (note 5) at 69.
10
Satò (note 5) at 69 and 78 note 12.
98 public law
separation of the two ministries was debated and finally accomplished,

after a compromise had been reached regarding the competing claims
of the clans for government posts and influential responsibilities. On
6 August 1870 the personal union of the ministers and vice-ministers
ended. The now distinct minbushò was responsible for family registers,
taxes, postal affairs, mining, and relief of the poor and old people.
The government itself managed financial affairs, and the authority
of the Ministry of Finance was reduced to an accounting institution.11
When on 13 September 1871 type III of the dajòkan system was
established the minbushò no longer existed. Its fields of business were
assigned to the Ministry of Finance and the Ministry of Public Works
(kòbushò). The reorganization of the government followed the aboli-
tion of domains and foundation of prefectures throughout the coun-
try. Thereby the Finance Ministry gained an important and powerful
position, and its first minister, Toshimichi Òkubo (Satsuma clan),
became the central figure in the government.
Two and a half years afterwards, on 10 November 1873, the
Home Ministry (now called naimushò) was set up anew; it existed
until the end of the dajòkan system in 1885 and continued operating
under the cabinet (naikaku) system until the end of 1947. Under the
Office Regulations for the Home Ministry (naimushò shokusei oyobi jimu
shòtei ) of 10 January 1874 offices, bureaus, and sections were founded
for the promotion of industry, police, family registers (census), post, pub-
lic works, land survey, and internal business (records, general affairs).12
In the political structure the naimushò had a stronger position than
the preceding minbushò.13 The idea of setting up the new Home
Ministry may be traced back to the struggle within the government
regarding a planned invasion of Korea. The opposing councillors,
Òkubo among them, argued that the inner administration must firstly
be reorganized and consolidated. They were able to thwart the inva-
sion plan and carry out their objective.
Toshimichi Òkubo was Home Minister from 29 November 1873
until his assassination on 14 May 1878. He extended his ministry,
giving it greater responsibility and power accordingly. In 1876 there
were sixteen secretariats, sections and bureaus with 6,787 officials,
employees and workers; among the fields of activity were census,
11
Satò (note 5) at 73.
12
Some duties were taken over from other ministries.
13
A. Satò (note 5), pp. 82–88.
police, public works, accounts, promotion of industry, post (by far

the highest number of personnel), public health and land survey.
Moreover, the ministry kept a branch office on the Ryùkyù islands.14
The third type of the dajòkan was the product of several experiments
in the form of government, and it proved to be a durable consoli-
dation which lasted from 1871 to 1885.15
II. Regarding domestic affairs, after the restoration the government’s

immediate task was to gain control over the feudal domains, the
number of which exceeded 270. First, the regions which had been
controlled by the bakufu directly were confiscated and garrisoned, the
garrison (chindai ) being responsible also for the civil administration.
A few months later, in September 1868, the chinshòfu (literally: office
of the pacifying general), successor to the Edo (= Tokyo) garrison,
became the controlling authority of 13 districts in the Kantò region
and exercised civil administration. These offices were short-lived, and
the supervision of the regional areas, which were organized step by
step into urban and rural prefectures, fell finally to the central home
department under its various denominations.16 The system of regional
and local administration in the early years of the Meiji era was not
the same throughout.17 Generally, a prefecture or domain was admin-
istered by a governor (chiji )18 whose duties were defined as “to foster
14
A. Satò (note 5), p. 92.
15
In this final type of the dajòkan the inner circle or highest ruling body consisted
of the prime minister or chancellor (dajòdaijin), the ministers of the left and of the
right, and occasionally an adviser to the cabinet (naikakukomon)—from 1873 to 1885
there were only three of them, each on separate occasions—, and several state
councillors (sangi ) who had to deliberate and decide on important affairs. The heads
of the ministries were not members of the inner circle, but the custom soon arose
that a minister (kyò ) was appointed state councillor (or vice versa) and served in
both positions simultaneously. Such connections were finally discontinued from 1885
(establishment of the cabinet system).
16
Ishii/Chambliss (note 2) at 155 and 204 respectively. When there was an inter-
val in the work of the home departments (see above) the Ministry of Finance was
responsible.
17
See the detailed description in Ishii/Chambliss (note 2) at 151–163/198–213).
18
This denomination was connected with the circuit. At first there were fu, han,
and ken, [in Wm.T. de Bary (ed.), Sources of Japanese Tradition, 1959, p. 646
seitaisho art. XI, they are called large cities, clans, and Imperial prefectures], corre-
spondingly the governors were chifuji, chihanji, or chikenji, literally ‘having to do with
the affairs of the fu, han, and ken’ respectively. Reorders within the words also
appeared: fuchiji, hanchiji, kenchiji. When the feudal lords = chiefs of the domains
(daimyò) returned their territories and census registers to the Crown (hanseki hòkan)
in 1869 they were made chihanji in their domain which were treated as an equivalent
100 public law
the welfare of the people, promote production, encourage moral edu-

cation, collect taxes, assess public labour, administer justice, and to
command the prefectural militia”.19 The prefectural office had four
separate sections: (1) general affairs, (2) civil court, (3) revenue, (4)
finance. In 1875 sections for education and for promoting industry
were added. The prefectures were subdivided into local units. In the
early years the number of administrative areas on the prefectural level
varied remarkably due to the continual reorganization. In 1868 there
were 10 fu (urban prefectures), 277 han (domains), and 23 ken (rural
prefectures).20 In September 1871, after the abolition of the domains,
the numbers were 3 fu21 and 306 ken, the latter of which was reduced
to 72 ken a few months later; it continued to fall to 43 by 1888.
Local administrative units which dealt with matters on the spot
existed before the Meiji restoration. Forms of self-government were
widely apparent. The Meiji government did not immediately change
the old system, but in order to gain an overall view of the population,
the prefectures were subdivided into districts (ku, in rural prefectures:
gun) with an official (kochò) and his assistant ( fuku kochò) whose first
duty was to take an itemized census of the population in their dis-
trict.22 On 15 May 1872 the former local officials were renamed kochò.
This term now meant the headman of the town or village responsible
for all affairs there.23 Initially, the kochò was considered the general
representative of the villagers or townsfolk. Owing to the extent of
to the prefectures. On 29 August 1871 the clan domains (han) were reorganized into
prefectures (ken) and the position of chihanji became obsolete. The governors of the
rural prefectures were renamed kenrei in December 1871. Since 1886 the governors
(or prefects) of the urban and rural prefectures have been uniformly called chiji.
19
Ishii/Chambliss (note 2) at 153/202. The quotation comes from the Document
on the Governmental System (seitaisho) the wording of which is usually abbreviated
when repeated in literature, e.g. in the books named in chapter ‘Constitutional Law’
note 6. An additional article regulated the division of the dajòkan into seven offices (kan)
and the regional administration into fu, han, and ken, K. Fukiji/M. Inoue (ed.), Nihonshi-
shiryò enshù- ( Japanese History—Excercises in Historical Materials), 1956, p. 330.
20
R. Sugii, Fu-han-ken taishòhyò (Systematic Table of Prefectures and Domains),
in: Nihon kindaishi jiten (Dictionary of Modern Japanese History), ed. by the Kyoto
University, 1958, p. 671. But compare the numbers given by T. Sakamoto (ed.),
Nihonshi shòjiten (Small Dictionary of Japanese History), 1960, appendix p. 111.
21
The number of fu had already been reduced to three in January 1870.
22
The kochò and fuku kochò were installed in addition to the present local func-
tionaries. This system was introduced by the Family Register Law (kosekihò) of 23
May 1871. K. Hosokawa, (note 2) at 69.
23
In reality the terminology was somewhat complicated and not uniform. The
districts themselves were large and subdivided into smaller ones which consisted of
several towns and villages The head of a large district was called kuchò, the head
of a small one kochò like the village head. K. Òishi; kochò and daiku, shòkusei, in Nihon
kindaishi jiten (note 20), pp. 200 and 344.
administrative business he had to carry out he gradually assumed

the character of a state official, and this led to a change in his role
as the representative of the villagers which depended on the trust of
the people.
Home Minister Toshimichi Òkubo became aware of weak points
concerning local administration. His criticism can be seen in a memo-
rial which he presented to the dajòkan on 11 March 1878. The memo-
rial related to the following matters:
(i) The forms of local government. Òkubo proposed for the prefectures
and cities (and the municipal officials) to function together. That is
to say they were to function simultaneously as controlled adminis-
trative divisions and independent communities. Consequently
there should be a clear distinction between central and local
expenditures. The towns and villages should remain independent.
(ii) Accordingly, the plan advocated that an exact distribution of
power be made between
– the governors, the heads of rural districts ( gun) and the heads
of cities (shi ) on the one side and
– local government on the other side, the dual nature (see above)
should also be taken into consideration.
(iii) The central government should grant a greater degree of auton-
omy to local governments by allowing them to manage their
own affairs concerning the population and the execution of their
civil rights under a forthcoming law for local assemblies. Òkubo
was of the opinion that these assemblies should concern them-
selves chiefly with budgetary matters.
(iv) The memorial recommended enacting a law on the levy of dis-
trict taxes (minpi ) in order to create a standard procedure and
to strictly define the terminology and content of the different
types of revenue.24
After Òkubo’s death on 14 May 1878 Kowashi Inoue, chief of the
legislative bureau of the government, went over the items and drafted
the following rule:
– Law Governing the Organization of Rural Districts, City Wards,
Towns and Villages ( gun-ku-chò-son hensei hò ),
24
Details including the three new laws in Ishii/Chambliss (note 2) at 163–177/
213–230.
102 public law
– Prefectural Assembly Regulations ( fukenkai kisoku),

– Local Tax Regulations (chihòzei kisoku).
These drafts were examined by the Standing Conference of the
Regional Head Officials25 and the Senate (genròin) and became known
as the Three New Laws or Three Great New Laws (sanshinhò or
sandaishinhò ).
1. The Law Governing the Organization of Rural Districts, City
Wards, Towns and Villages, consisting of only six articles, was enacted
on 22 July 1878. It clarified and straightened out uncertainties of
the system.
(i) Districts, wards, towns, and villages are subdivisions of an urban
or rural prefecture.26
(ii) The names of districts, towns, and villages remain as before.
(iii) In a district in which the area is too large and the administra-
tion inconvenient parts of it should be marked off and thereby
several districts formed.
(iv) The three urban prefectures,27 the five seaports,28 and other areas
suffering from overcrowding shall be one district each.
(v) One district headman ( gunchò ) in each district, one headman of
the ward (kuchò) in each ward is to be appointed; in the case of
small districts one headman for several districts may be installed.
(vi) In each town and village one mayor (kochò ) shall be installed. A
single mayor may also be appointed for several towns or vil-
lages. The head of a city ward may serve concurrently as the
head of the towns and villages located within the boundary of
his territorial jurisdiction.
On 2529 July 1878 the government promulgated the decree no. 32:
Service Regulations for Prefectural Officials ( fukenkan shokusei ) which
replaced the rules of 1875. A section of the Regulations was headed
25
See chapter ‘Constitutional Law’.
26
Terminology: District (gun) = administrative unit below the rural prefecture, English:
county, German: Landkreis.—Ward (ku) = urban district.—Town (chò) = county
town, German: Kreisstadt.—Village (son) = country settlement smaller than a town.
The words ‘town’ and ‘village’ were combined to chòson = a rural municipality.
27
Tokyo, Osaka, Kyoto.
28
Yokohama, Kòbe, Nagasaki, Niigate, Hakodate.—In harbour areas along the
coast harbour authorities (urayakuba) were established in addition to the regular
administration.
29
K. Hosokawa (note 2) at 68. R. Ishii (note 2), at 165, notes ‘24th day’.
‘Outline of the Duties of kochò ’. These were (i) Display of laws and
orders within the town or village. (ii) Collection of the land-tax and
payment of various taxes. (iii) Family register. (iv) Registration of real
estates, buildings, ships, pledges, and endorsement of bills of sale. (v)
Registration of title deeds. (vi) Report to the police office in case of
missing children and foundlings, travellers who had become ill or
met an unnatural death, or in the case of other accidents. (vii)
Circumstantial report on natural calamities or persons who were cur-
rently in extremely serious distress. (viii) Circumstantial report on
dutiful children, virtuous women, and other people of good deeds.
(ix) Induce the children in the town or village to attend school. (x)
Registration of the seals of the people of the town or village. (xi)
Safe keeping of the account-books. (xii) Circumstantial report about
the pros and cons concerning the repair and preservation of river
ports, roads, dykes, bridges, and otherwise to be maintained at the
expense of the government or the prefecture.
2. The Prefectural Assembly Regulations, enacted also on 22 July
1878, consisted of 35 articles.30 There were predecessors to the regional
assemblies. After the Meiji restoration the official direction was to
establish assemblies in each fu, han, and ken: seitaisho art. V. People’s
assemblies were established in some domains (hangiin) which, after
the abolition of the domains and their transformation into prefectures,
became prefectural assemblies ( fukenkai ).31 In the beginning the assem-
blies sprouted out of any given order. At the meeting of the Standing
Conference of the Regional Head Officials (chihòkan kaigi )32 on 8 July
1875 the chairman stated that people’s assemblies (minkai—a collec-
tive term for the prefectural, regional, and local assemblies)33 had
been established in seven rural prefectures,34 and that assemblies of
the heads of the districts, wards, towns, and villages had been set
up in one urban and 22 rural prefectures, moreover, that such assem-
blies did not exist in two urban and 17 rural prefectures, and that
30
By an amendment of 5 November 1880 articles 36–49 were added.
31
R. Ishii (ed.), Shin hòritsugaku enshù kòza—Nihon hòseishi (New Practical Course
in Jurisprudence—Japanese Legal History), 1959, p. 195.
32
Consisting of the head officials (chiji, governors) of the three urban prefectures
Tokyo, Osaka, Kyoto, and the prefects = governors (kenrei ) of the, then, 59 rural
prefectures. Meiji bunka zenshù (Complete Collection About Meiji Culture), vol. 1:
Kenseihen (Constitutionalism), edited by Meiji bunka kenkyùkai (Society for the Study
of Meiji Culture), 1955, p. 257.
33
R. Ishii, loc. cit. (note 31).
34
Meiji bunka zenshù (note 32) at 313. Ishii/Chambliss (note 2) pp. 162/212.
104 public law
the situation in the remaining units was not apparent. The deliberations
of the Conference aimed at the formation of an opinion and the
answer to a question asked by the Emperor (government). The ques-
tion to be discussed on that day and at the following meetings was:
We intend to establish regional people’s assemblies and have them decided
by public discussion on expenses defrayed by the people of the area and
matters concerning the public good there. Should a new assembly law
be enacted? Should the assemblymen be publicly elected or should the
assembly be provisionally formed of the headmen of the districts or wards
and mayors of the towns and villages? Which is suitable for the people
of today and of practical use? Advantages and disadvantages of the issue?35
The Conference discussed only prefectural and district assemblies and
presented drafts of
1/ a ‘Law for the Organization of Prefectural Assemblies Composed
of District and Ward Headmen’ (kuchò wo motte fukenkai wo okosu
hòan)36 and
2/ a ‘Law for the Organization of District/Ward Assemblies Composed
of Town and Village Headmen’ (kochò wo motte kukai wo okosu hòan).37
These headings illustrate the fact that the Conference did not think
much of public election of assemblymen, and, because not all the
district headmen and town mayors were elected by the people but
chosen by the authorities, it was not possible to argue that at least
the assemblymen had been elected by the people to their position
of headmen or mayors, and that, therefore, the membership of the
assemblies could also be regarded as publicly elected. The two drafts
would never be enacted. Most of the existing prefectural and district
assemblies were advisory in function; they had to give their opinion
on subjects put forward by the authorities.
Town and village assemblies were set up, where necessary, in sev-
eral localities,38 previously founded assemblies continued the business
of the traditional village assemblies (mura yoriai ). The pre-Meiji vil-
lage administration was not the same in all regions.39 Generally, there
35
Meiji bunka zenshù (note 32), at 312.
36
Meiji bunka zenshù (note 32), at 335–337.
37
Meiji bunka zenshù (note 32), at 337–338.
38
Ishii/Chambliss (note 2), at 162/212. Chambliss translates kaku chihò as “each
locality” which is inconsistent with the following statement that the number of these
local assemblies seems to have been very limited. Kaku also means ‘several, various’.
39
There is a large amount of literature. Concise description in: R. Ishii/W.
were three administrative functionaries (murakata san’yaku or jikata

san’yaku or murayakunin) in a village: (i) nanushi = the headman and
representative of the village and the villagers,40 (ii) kumigashira = assis-
tants to the headman,41 (iii) hyakushòdai = controller.42
These local self-governing authorities survived the restoration, and
with them also the òjòya (literally: great headmen) who supervised a
number of villages. But in May 1872 the former village officials lost
their titles and were combined in the system of kochò and fukukochò
(see above); it seems that some òjòya, whose positions were totally
abolished, were subsequently used as district heads.
Apart from the said functionaries, the village assembly (mura yoriai )
was a feature of the autonomous state of the village. The village had
begun to grow as a self-governing unit in the 15/16th century when
the type of feudalism arose which characterized the society for almost
300 years.43 To retell the history of the village assembly would be
outside the scope of this book. After the Meiji restoration the exist-
ing assemblies continued to deliberate and decide on matters regarding
the concern of the villagers, such as distribution of water, quota of
Chambliss (note 2), p. 156 et seqq./205 et seqq.; R. Ishii (note 31), pp. 185–190;
H. Befu, Village Autonomy and Articulation with the State, in J.W. Hall and
Marius B. Jansen (ed.), Studies in the Institutional History of Early Modern Japan,
1968, p. 301 et seqq.; K. Nakada, Mura oyobi iriai no kenkyù (Study of the Village
and the Common), 1949 p. 16 et seqq.—chapter 2 of which ‘Meiji shonen ni okeru
mura no jinkaku’ (Character of the Village in the Early Meiji Years) was taken from
K. Nakada, Hòseishi ronshù (Collected Treatises on Legal History), vol. 2, 1938, pp.
991–1106. Generally useful is Kyòdoshi jiten (Dictionary of Local History), edited by
the Òtsuka Historical Society, 1957, at the relevant headwords.
40
The village (mura or sonraku) was an artificial person, not completely but closely
resembling the co-operative society (Genossenschaft) of the Germanic law, and, as
such, a virtually autonomous unit. At the same time the village was the entirety of
the villagers. The distinction of these two characteristics had legal implications as
to the charge of the headman. There were nanushi also in the towns (machinanushi ).
In the western part of Japan (kansai ) the nanushi was called shòya. In many places
the nanushi was elected or nominated by the people.
41
Literally ‘group head’, i.e. head of a five-family neighbourhood (goningumi), the
lowest basis of communal government. As a town or village official he was also
called Toshiyori. There were one to five kumigashira; they were elected.
42
Literally ‘farmers’ deputy’. He was also called yokome = literally ‘glancing side-
ways’. Elected by the farmers he had to control the village administration conducted
by the headman and his assistants. In large villages there were two or three of them.
43
The term ‘feudalism’ (hòkensei ) has been much disputed among scientists with
regards to content, definition, and comparison to feudalism in Europe. See J.W. Hall,
Feudalism in Japan—A Reassessment, in Hall and Jansen (ed.), Studies in the Institu-
tional History of Early Modern Japan, 1968, pp. 15–51. C. Steenstrup, A History
of Law in Japan Until 1868, 1991, p. 108 et seq. R. Ishii (note 31), pp. 29–34.
106 public law
the land-tax which was the debt of the village as a whole, calculation
of the village expenses, and contracting of village loans. Moreover,
the assembly framed village laws and took notice of proclamations
and relevant ordinances.
The Three New Laws did not deal with assemblies on the lower
administrative level but restricted themselves to regulating the prefectural
assembly.44 The members of that assembly were elected for a term
of four years; every rural and urban district ( gun and ku) was to elect
five members or less according to its size. Entitled to vote were male
persons of 25 years or older who were permanent residents of the
district and had been paying a land-tax of at least 5 ¥ within the
prefecture—excepted were mentally ill, or severely sentenced, or
bankrupt persons. The requirements for eligibility were, in general,
the same but the candidate needed to have been living in the pre-
fecture for more than three years and to have paid a land-tax of at
least 10 ¥; persons who were employed as government officials or
teachers were not eligible. The voter had to write his name on the
ballot. The functions of the assembly were somewhat limited. The
members had to deliberate on the budget which was defrayable out
of local taxes, and on the method of collecting local taxes. Resolutions
concerning the expenditure of local taxes required the approval of
the governor, who was obliged to make a detailed report to the
Home Minister and ask for instructions if he considered a resolu-
tion unfit to become legally binding. All in all, the rights of the
assembly were weak compared with the power of the governor.
3. The Local Tax Regulations of 22 July 1878 combined the pre-
sent prefectural tax ( fukenzei ) and district tax (minpi)45 to form a ‘local
tax’ (chihòzei ). There were three categories of local tax: (i) a tax not
to exceed one fifth (changed to one third in 1880) of the land-tax
(chiso) which was a central government revenue, (ii) a business tax
(eigyòzei ) and a tax on miscellaneous profits (zasshuzei ),46 (iii) a household
tax (kosùwari ). Thereby the prefectural tax yield was circumscribed.
Moreover, the Regulations determined the items of expenditure out
of the local tax yield47 and the budgeting procedure. Many items of
44
For further rules see below.
45
Literally ‘people’s expenses’ (in contrast to kanpi = ‘government’s expenses’).
46
Those two types of taxes and their limitations were determined in a separate
decree.
47
Twelve items were listed: police; construction and repair of river ports, roads,
embankments, and bridges; prefectural assembly expenses; prevention of contagious
expenditure concerned governmental affairs and, in general, the

Regulations laid stress on the character of the prefecture as an admin-
istrative section. This reflected the fact that the separation of central
and local business was nothing but a radical push forward on the
road to imperialism.48 The objects of taxation and the tax rates con-
cerning the business tax, the tax on miscellaneous profits, and the
land-tax rates depended on government rules, while the household
tax was determined by the consent of the people—however, the auton-
omy of the wards, towns, and villages was restricted in that the peo-
ple could not help increasing this tax when circumstances demanded
a higher revenue. Altogether, the local tax came near to a state tax.
The ‘Three New Laws’ were completed by the Enforcement Regu-
lations (gun-ku-chòson henseihò, fukenkai kisoku, chihòzei kisoku shikò junjo) of
22 July 1878 and some amendments.
(i) The Enforcement Regulations (henceforth abbreviated Enf Reg)
authorized the wards, towns and villages to open assemblies in accor-
dance with local conditions, art. 4, a sign of autonomy. The rural
district ( gun) was not mentioned, it remained a mere regional admin-
istrative division.49
(ii) The original draft of the Enf Reg had provided that each town
and village should have a head official to act as the general deputy
(sòdai ) for the inhabitants of his community, and be allowed to con-
duct his official duties more independently than the average gov-
ernmental officer. When the draft was discussed in the Senate this
body disapproved of the expression ‘general deputy’ because this
disease; public schools within the prefecture and supplementary grants to elemen-
tary schools; construction and repair of government buildings in the rural divisions
and city wards; salaries, travel, and office expenses for officials of the rural divi-
sions and wards; hospitals and relief agencies; seashore offices and sea rescue oper-
ations; circulation and posting of notifications; promotion of industry; and salaries
for the town and village heads and their subordinates as well as funds for their
office expenses. W.J. Chambliss (note 2) at 222.
48
S. Endò, Zaisei seido (Financial System), in N. Ugai et al. (ed.), Nihon kindaihò
hattatsushi (History of the Development of Japanese Modern Law), vol. 4, 1958, pp.
1–94 [86].
49
The gun was a local administrative organ between the prefecture and the towns
and villages. In 1875 there were 720 gun; most of them became a self-governing
unit in 1888. By means of abolition and amalgamation their number decreased
from time to time and their function was more and more limited. In 1921 the gun
system was discontinued as a regional governing organization under law no. 63,
but the term gun survived as a geographical denomination (district). Art. 259 of the
Local Autonomy Law (chihò jichihò) of 1947 regulated the procedure in case of chang-
ing boundaries or denominations, founding or abolishing a gun.
108 public law
would give the head official the chance to advocate the interest of
the inhabitants first and put the government’s concern last. Finally,
the head official was defined as rijisha of his town or village, i.e. a
functionary, a person engaged in administrative service.
(iii) The responsibility of the local assemblies had not been described
by the Law Governing the Organization of Rural Districts, City
Wards, Towns, and Villages nor by the Enf Reg. As previously men-
tioned, some assemblies already existed in earlier times. The first rel-
evant Meiji legislation50 proscribed the participation of the inhabitants
in signing a contract concluded by the head official under which he
borrowed money or grain, sold commonly owned land or buildings,
or initiated public works within the community. However, this only had
to be carried out by sixty percent or more of the community’s real
estate owners in their capacity as such and not as members of the
assembly. Therefore, the said regulations were not connected with any
system of public assemblies. Yet, in the wake of the Three New Laws
and the Enf Reg, the Home Ministry ordered on 11 November 1878
that the business named in the Regulations of 17 October 1876 (see
above) was assigned to the existing assembly, which grew into the
position of the general deputy of the inhabitants.
The government, pursuing the policy to shift responsibility in local
affairs to the localities themselves, recognized the significance of the
ward, town, and village assemblies and made it compulsory for each
community to set up an assembly. Under the Ward, Town, and
Village Assembly Law (ku-chò-son kai hò ) of 8 April 1880 the village
assemblies (murayoriai ) of pre-Meiji times were maintained on a reduced
scale insofar as the former meeting of all farmers51 was replaced by
the meeting of elected deputies. The authority of the assembly was
restricted by the provision that the sanction of the governor of the
prefecture was required for the assembly’s regulations concerning the
procedure for deciding on public affairs, the collection of taxes, and
disbursement of expenditures. Moreover, the head official of the
50
Regulations for the Rural Districts, Towns, and Villages Relating to Public
Loans of Money and Cereals, to the Disposition of Common Property, and to the
Commencement of Construction Works (kaku ku-chò-son kinkoku kòshaku kyòyòbutsu tori-
atsukai doboku kikò kisoku) of 17 October 1876. Extracts and explanation in K. Nakada
(note 39), 1949, at 9, 145, 147.
51
Generally, only the farmers who were heads of an independent household and
registered in the census register were members of the assembly. But regionally the
circumstances differed considerably. K. Nakada (note 50), at 12, 136 et seq.
ward, town, or village who was responsible for the execution of the
assembly’s decisions was empowered to delay enforcement pending
appeal to the governor for instructions. The governor could suspend
the actions of the assembly if he considered them unlawful. The
assembly system was only a short step on the road to democracy.
(iv) Amendments to the Prefectural Assembly Regulations were
decreed in 1879, 1880, and 1881. The most important of them was
the revision of 8 April 1880 by which, among other things, the power
of the assembly was strengthened. If the assembly protested about
the statement of accounts direct communication with the Home and
Finance Ministers was allowed; the assembly, in the name of the chair-
man, could submit a report to the said ministers immediately. Further-
more, the amendment provided for measures in order to secure the
attendance of assembly members at the sittings. The amendment of
14 February 1881 brought about certain changes in the relationship
between the assembly and the governor which enabled him to dispute
an assembly resolution and ask for the decision of the government.
(v) In April 1880 the Local Tax Regulations were also revised.
The main points concerned the establishment of a reserve fund, and
the power of the Home Minister to levy taxes in accordance with the
previous year’s budget if the local assembly had not deliberated or
its resolution had not met the governor’s approval. The construction
and repair of prefectural offices were added to the items to be paid
for by local taxes, this was also the case for prefectural prisons with
the addition of operational expenses.
(vi) Shortly after the enactment of the Three New Laws, namely
on 25 July 1878, the dajòkan laid down the Regulations for the
Organization of Prefectural Government ( fukenkan shokusei ) by which
the powers of the governor were determined. He was authorized to
exercise full administrative control over his territorial jurisdiction, to
enforce laws and government orders, and, when necessary, to proclaim
enforcement regulations for their execution. Several cases were men-
tioned in which he had to report to the government, additionally
the Prime Minister (dajòdaijin) and the respective ministers had the
right to cancel measures or proclamations of the governor if they
contravened the laws and orders of the central government. In many
respects the governor was supervised by the dajòkan. However, while
previously he was entitled to veto only assembly resolutions concerning
the expenditure of local taxes, he was now vested with a general
veto power over all assembly resolutions.
110 public law
The organization under the Three New Laws, the amendments

and collateral laws, was intended to be complete and perfect and
indeed seemed to be so. However, weak points soon became notice-
able, especially concerning the towns and villages and their assem-
blies. While the prefectural assemblies had a well-defined competence,
the town and village assemblies were practically left without regula-
tions, since up to now they had always toed the line. The situation
was that the office of the headman, which also lacked an organiza-
tion-like structure, incurred disorder. Due to this state of affairs the
enactment of regulations for the towns and villages and their assem-
blies became an urgent task.
One measure was the amendment (fifteen articles) of the Ward,
Town and Village Assembly Law on 7 May 1884 and, in addition,
the change in character of the headman from a publicly elected
functionary to an official appointed by the prefectural governor from
among three to five candidates elected by the local community. This
part of the so-called ‘17th year’s reform’52 was decreed by an order
of the government (dajòkan tasshi ) of 17 May 1884, which also intro-
duced the system that one headman could be made responsible for
five towns/villages on average, and raised his salary.53
The amendment of the Law had the quality of a law corresponding
to that time ( fukoku). The function of the assembly was defined as
‘conferring and agreeing upon how the expenses of the ward, town,
or village54 should be defrayed, and the method of collecting con-
52
1884 was the seventeenth year of the Meiji era.
53
R. Ishii/W. Chambliss (note 2), at 340–341/409–410. T. Òshima, Chihò seido
(The Local Government System), in Kòza Nihon kindaihò hattatsushi (see note 5), p. 49
et seqq. [72–73]. The new provisions were caused by the fear that the publicly
elected and meagerly paid headman of a village consisting of 20 to 30 households—
those were numerous—could easily mix up his official duties with his private affairs,
especially as it was common to establish his office in his home. The reform aimed
at raising the efficiency of the administration.
54
The expenditures were defined by a parallel direction of the Home Ministry
as being the costs for (1) the head official’s office, (2) the assembly, (3) civil con-
struction, (4) education, (5) sanitation, (6) relief, (7) disaster precautions, (8) police.
All other ventures were considered to be private and had to seek their funds from
levies privately agreed upon. In order to push ahead such civic, economic, or cul-
tural undertakings beyond their own family or house a few townsmen or villagers
formed a group (kumiai ), the characteristic of which was partnership, co-operation,
and public spirit. In many places the group constituted a form similar to the ‘vil-
lage within the village’ (buraku), a private association within the framework of a pub-
lic corporation; Ishii/Chambliss (note 2) at 343/411. ‘Similar to’ the buraku means
that the groups were not the original buraku which was the term for the most lowly
people who carried out menial, dirty work, and were excluded from the commu-
nity and lived in quarters on the fringes of the city, town, or village.
tributions’. The other articles dealt with the right to vote and to be
elected, the chairman (the Law designated the headman of the com-
munity) and his rights with regard to the assembly, as well as his
responsibility in relation to the prefectural governor. Compared with
the old law, the authority of the governor was strengthened and the
self-government of the lower administrative units brought under
stronger control.
III. Early proclamations of the Meiji government had promised that

the people should partake in discussing the affairs of the state; the
Emperor had even determined that a national diet should be opened
in 1890. The politically interested people were eagerly expecting par-
liamentary participation in law-making, and the local assemblies,
though of limited influence, were regarded as experiments for a
national assembly. On the other hand there were also prestigious
statesmen who were inclined to slow down the development. Tomomi
Iwakura, Minister of the Right, in 1882 demanded that the prefectural
assemblies be dissolved. He felt that they were premature and would
destroy orderly progress by clearing the way for the people to transgress
their superiors and, additionally, to give origin to an idea of disrespect
for the central government.55 However, progress was not interrupted.
Hirobumi Ito’s study in Europe extended to a parliamentary system
and to local government.56 Since Japan had in principle already
decided in favour of a law reform on the model of continental
European law, and turned its attention especially to Prussian/German
conditions, Itò listened to lectures given by experts in Berlin, namely
professor Rudolf von Gneist and his disciple Albert Mosse, a judge
of the Berlin district court.
When Itò returned to Japan the amendments to the Three New
Laws reached the last phase of completion. But at the same time the
government had a revision of the system in mind. On the one hand
it was felt that some elements of the existing order were deficient;
the specific problem being the juxtaposition of the kochò as a government
official and the assembly as an organ of self-government, and for
expressing the people’s political will at the basic administrative level:
the chòson.57 On the other hand the constitution was to be prepared,
55
Ishii/Chambliss (note 2), at 342/411.
56
See chapter ‘Constitutional Law’, section V.
57
T. Òshima, Chihò seido (The Local Government System), in vol. 5 of the
‘Lectures’ cited supra note 5 (1958), p. 49 et seqq. [74].
112 public law
and the local government had to be brought into line with the forth-
coming constitutional law.
A difference of opinion arose between the councillors Hirobumi
Itò and Aritomo Yamagata about the time of the introduction of
a new system of local government. Itò favoured relevant legislation
after the enactment of the constitution; Yamagata insisted upon a
reform prior to the promulgation of the constitution in order to make
the Japanese fit for partaking in national affairs and to make them
aware of the grave responsibilities of government. He argued that
local autonomy was the basis for constitutional government and a
permanent foundation for the State.58
Yamagata became Home Minister on 12 December 1883. His
predecessor Akiyoshi Yamada, in office since 21 October 1881, had
already commissioned the chief secretary Tamotsu Murata to draft
a law on town and village organization. The draft was completed in
May 1884 and presented to Yamagata who disapproved of it and,
in December, set up a Committee for the Investigation of the Town
and Village Law (chòsonhò chòsa iin) within the Ministry, and ordered
a new draft taking the Japanese and foreign legal systems into closer
consideration. This draft was presented in June 1885; it had been
modified several times and was finally called ‘Regulations Governing
the Organization of Towns and Villages’ (chòsonsei ). This draft was made
up of some changes in selected parts of Murata’s draft, which had
overstressed direct relations between the kochò and the inhabitants, and
because of that departed too far from the establishment of a structure
founded on a local assembly institution. Yamagata drove for regional
self-government and an arrangement of administration in unison or
‘power in harmony’ ( gòken). For this it was felt necessary that the
people’s opinion be divided by class.59 Ideas about this topic could
be found in Prussia where a class-system of franchise (tòkyù senkyo-
sei ) and a system of honorary posts (meiyo shokusei ) were discussed as
a principle of parliamentarism, referring also to local government.60
About one year later the draft of the said regulations was given
to Albert Mosse who had informed H. Itò and the Japanese delegation
about German administrative law in Berlin (see above) and who was
58
Ishii/Chambliss (note 2) at 343/412. See here also for the following text.
59
T. Òshima (note 57) loc. cit.
60
This point of view was supported by the distinguished German scientist R. von
Gneist whose lectures Itò attended in Berlin.—C. Schmitt, Verfassungstehre
(Constitutional Theory), 1928, p. 313.
engaged as an adviser to the Japanese government in 1886.61 Prior to

Mosse’s arrival the draft had been examined by Japanese officials, addi-
tionally the German adviser Hermann Roesler also gave his opinion.
Roesler was a scientist, Mosse a juristic practitioner. It was Mosse
who was entrusted with the elaboration of a local government system.
His first task was to draft the ‘Gemeindeordnung’ (law governing the
organization of towns and villages); the last Japanese draft was trans-
lated into English for him. Mosse suggested that a high ranking com-
mittee should first of all formulate an outline of the main points of
the project; that paper was—after deliberation in the Cabinet and
with the consent of the Emperor—to become the starting-point for
the reform. The committee (chihò seido hensen iin) was set up on 24
January 1887. Yamagata himself was the chairman, and three vice-
ministers62 and Mosse were the members; in addition three secretaries
were employed. Mosse had to draw up the essentials of the local
government legislation.63 As he shared Yamagata’s opinion that the
local government should be regulated before the enactment of the
constitution and was, therefore, aware of the urgency, he presented
his draft within a week. The draft, after being modified by the com-
mittee, was approved by the Cabinet in late February under the title
‘General Plan for a Code on the Local Government System’ (chihò
seido hensen kòryò).64
Mosse, although preoccupied with other important work,65 was
commissioned to draft regulations for the cities, towns, and villages.66
61
Mosse arrived in Japan in May 1886 and stayed there until March 1890. A
collection of his letters to relatives in Germany is preserved in the Leo Baeck
Institute, New York. Part of them has been edited by S. Ishii, E. Lokowandt,
Y. Sakai under the title “Albert und Lina Mosse, Fast wie mein eigen Vaterland”
(Almost like My Own Fatherland), 1995.
62
Mosse (note 61) at 226–227; picture at 225.
63
See Ishii/Chambliss (note 2) at 343 et seqq./412 et seqq. for the course of
the reform work.
64
The committee was authorized to definitely determine the particular laws
needed according to the General Plan. Mosse (note 61) at 229.
65
Revision of the treaties, constitution, electoral law; Mosse loc. cit. at 227 et
seqq., letter of 21 February 1887. Subsequently many tasks were added, loc. cit. at
20, 271. Mosse regarded himself as a general dogsbody, loc. cit. at 203.
66
Mosse’s initial occupation in Japan had actually been to draw up regulations
governing the organization of the towns and villages starting from the last Japanese
draft—see above—; he used the German term ‘Gemeindeordnung’, loc. cit. at 125,
131, 134, 137 (letters of June and July 1886). However, this work progressed slowly
due to Mosse’s illness, insufficient information, communication difficulties, and the
break during the hot season.
114 public law
He wrote a code of 8 chapters and 162 articles in German67 and

submitted it in May 1887.68 The committee modified some details
and had the code split up into two laws, one for the towns and vil-
lages, and one for the cities. The two drafts were sent to the Cabinet
in September 1887, and to the Senate in November of the same
year.69 Some points concerning the regulations for the towns and vil-
lages were disputed in the Senate, but a compromise was reached.
By 1 February 1888 the revised draft was presented to the Emperor.
A few days later the Senate decided on the draft for the cities, which
had also undergone some changes. A notable difference from the
regulations for towns and villages was that the cities could not form
kumiai 70 for certain purposes.
The prefectural governors, who were asked for their opinion in
February 1888, requested that the execution of the legislation should
be postponed for one year. The two drafts were sanctioned by the
Emperor and promulgated on 25 April 1888, called ‘Regulations
Governing the Organization of Cities’ (shisei, below abbreviated
RegOC) and ‘Regulations Governing the Organization of Towns
and Villages’ (chòsonsei, below abbreviated RegOTV), including the
proviso that they were to be gradually enforced in each prefecture
after April 1889 in accordance with a detailed report by each gov-
ernor who had to take the local conditions into consideration. Mosse
wrote explanations and comments on every chapter and article, this
helped to make the laws popular.71
At a glance, this legislation had to do with the character of the
said units as abstract and artificial persons, with municipal elections,
honorary posts, the right to establish bylaws, with assemblies and
their authority, executive organs, property, revenue and expenditure,
budget and supervision. A point of special significance was the pos-
sibility of amalgamation of towns and villages; this general direction
67
The title of the Japanese translation was jichi burakusei sòan (Draft Regulations
Governing the Organization of Self-governing Communities) and meant towns and
villages as well as cities and wards. In this context the term buraku differs from the
buraku as explained in note 54.
68
Mosse, loc. cit. at 262. The deliberations of the committee began in July and
were finished in the same month (Mosse, loc. cit. at 285).
69
The draft for the towns and villages consisted of 8 chapters and 138 articles,
the draft for the cities of 7 chapters and 132 articles.
70
See note 54.
71
In November 1889 Mosse remarked that the legislation had proved to be more
or less well established. Mosse (note 61) at 498.
was favoured and standardized by the government under a directive

of the Home Ministry of 13 June 1888. Problems often arose with
amalgamation, usually concerning the property owned jointly by the
townspeople or villagers and the property owned by the town or vil-
lage as an artificial person. Rules pertaining thereto had to be enacted,
and the same was necessary with regard to the buraku.72
In all, the new regulations partly denied the feudalistic village
structure and became a link in the chain of a modern administration
set-up, but at the same time partly took over the old structure and
checked the movement for political reform. The right of self-gov-
ernment was weak and the inner organization not democratic.73 The
amalgamation of towns and villages was achieved to a large extent:
within one year (1888–1889) the number of towns and villages
decreased from 71,314 to 15,820.74
The RegOC dealt with roughly the same matters as the RegOTV;
amalgamation was not provided for.
Mosse also drafted Regulations Governing the Organization of
Prefectures ( fukensei ) and Rural Districts (gunsei ).75 The course of leg-
islation was, however, blocked in the Senate because certain mem-
bers of it disapproved of granting autonomy to those units too early.
The Cabinet withdrew the drafts in December 1888. Yamagata,
who had pleaded before the Senate in vain, departed to Europe in
the same month, and during his absence (until October 1889) the
Home Ministry revised the drafts, to the effect that the provisions
about features of autonomy were almost totally eliminated and the
prefectures and districts continued to be pure sections of the state
administration. Then the drafts were passed by the several legisla-
tive organs and were promulgated as laws in May 1890.76
72
Note 54.
73
Detailed description in Ishii/Chambliss (note 2) pp. 348–353/416–424. M. Òshima,
Chihò seido (The Local Government System), in ‘Lectures. . . .’ (note 5), vol. 8, pp.
1–74.
74
Amalgamation of towns and villages had been practised on a smaller scale also
before the Meiji eighties. Ishii/Chambliss (note 2) at 350/420. T. Òshima (note 53)
at 81. Amalgamation meant unity in contrast to federation which also took place.
75
Mosse (note 61) at 354 and passim.
76
Mosse had left Japan in April 1890. It seems that he had not been involved
in the revision work while in February 1889 he judged the course of legislation to
be promising. Soon afterwards he noted that the legislation had not made any
progress. In October 1899 he mentioned that he had neither seen nor heard any-
thing more of his drafts. Shortly before his departure he remarked that the fuken-
sei and gunsei would soon be promulgated. Mosse (note 61) at 418, 421, 495,
505.—For details of the regulations see Ishii/Chambliss (note 2) at 356–363/426–434.
116 public law
In the prefectural organization there were an assembly and a coun-

cil. The assembly, the regular sessions of which lasted no more than
thirty days, was opened every year in autumn. When necessary an
additional seven days’ emergency session could be held. The assembly
was empowered to decide on enumerated subjects mainly concerning
matters of finance and property. In addition, matters could be placed
within the competence of the assembly by a law or ordinance. The
council, consisting of the governor, two senior civil officials and hon-
orary councillors, had the authority to decide on matters delegated
by the assembly, and, additionally, instead of the assembly on emer-
gency measures when there was insufficient time to summon the
assembly. Other rights concerned the control of prefectural property,
construction work, the budget, and accounts. Moreover, the council
could express its views when consulted by the governor or a government
office. The administration of the prefectures was supervised by the
Home Minister. Important financial matters required the consent of
the Home Minister and the Finance Minister.
Similar to the Regulations Governing the Organization of Prefectures
were the Regulations Governing Rural Districts. Not only members
elected by the towns and villages formed the district assembly, but
also major landholders elected mutually among themselves. The rural
district council consisted of the district head and four honorary coun-
cillors. The matters to be dealt with by the council resembled those
of the prefectural council. Like the RegOC and RegOTV the reg-
ulations for the rural districts were not all enforced together at a
fixed date but according to political trends and local conditions. The
process dragged on for some years, the last step being the enforce-
ment of the Regulations Governing the Organization of Prefectures
in Okinawa in 1909.
After some minor amendments the RegOC and the RegOTV
were repealed and new RegOC (shisei ) and RegOTV (chòsonsei ) enacted
on 7 April 1911. Though slightly modified in 1921 and 1926 the
new regulations remained in force until the reform after World War
II and, therefore, it is worth while to mention the main points of
them.77 Cities, towns and villages were now explicitly designated as
public corporations; the sphere of their functions and liabilities were
77
The following text up to the asterisk is taken literally from Chambliss (note 2)
at 545–546 because it is a good summary; adapted translation of Ishii’s work (note 2)
at 471–472.
clearly determined; the designation of wards was left to Imperial

ordinance; residents were regarded as anyone having a residence in
the municipalities; the provisions relating to the rights of municipal
residents were more fully elaborated; and the restrictions on the num-
ber of city council members were removed. Electors were still divided
into three classes in the city and two in the towns though the way
they were divided was somewhat different. The restrictions on the
establishment of electoral districts were eliminated; the term of incum-
bency for municipal assembly members was set at four years; and
all assembly members had to stand for reelection every four years.
Voting was done by the single ballot system, and the voter was
required to make his own ballot. To be elected the candidate of
each class had to obtain more than one-seventh of the figure result-
ing from the division of the number of elective offices in each class.
The punitive regulations concerning elections were based on similar
regulations found in the Diet’s lower house election law. The city
assembly was permitted to delegate a portion of the items within its
competency to the city council; the municipal heads summoned,
opened, and closed the municipal assemblies, and it was possible for
a municipal assembly to be convened upon the demand of one third
of its members. The city council served as the city’s deliberative organ,
and the mayor was the city executive. In the appointment and dis-
missal of salaried municipal officials the municipal heads were allowed
to act according to their discretion; and the annual municipal budgets
had to be voted upon by the municipal assemblies one month prior
to the commencement of the fiscal year. The new municipal legislation
also spelled out in more detail the provisions concerning supervision
of the municipalities. But so far as the city was concerned the most
important change was that the mayor rather than the city council
became the city’s executive. Formerly the city council had exercised
general control over the city, had been the city’s representative and
had discharged the city’s administrative duties, while the mayor as
president of the council had only been encharged with the direction
and supervision of city affairs; however, as a consequence of the revi-
sion of the city regulations the mayor was given general control over
the city and he was made the city’s representative. The city council
on the other hand became the deliberative organ on an equal par with
the city assembly. The powers of the council entitled it to deliberate
upon matters delegated to it by the city assembly, to state its views
to the mayor on proposals which he submitted to the assembly, and
118 public law
to exercise jurisdiction over matters assigned to it by law and ordinance.

As in the past the council was composed of the mayor, his assistant
and the honorary councillors, although the latter were now chosen
by and from the city assembly.*
Also the Regulations Governing the Organization of Prefectures
were revised and enacted anew on 16 March 1899.78 The new regula-
tions made quite clear that the prefecture was a juridical person; also
they made it explicit that the prefecture was an administrative division
of the state by declaring that, under the supervision of the central
government, the prefecture would dispose of public matters and those
affairs delegated to it by law, ordinance and custom. With respect
to the assembly, which was to be composed of members elected by
each electoral district, the new law perfected the provisions relating
to the assembly’s powers; it abolished the existing rural and urban
divisions of the Tokyo, Kyoto, and Osaka prefectural assemblies; it
repealed the former provision that restricted the opening of the reg-
ular assembly sessions to the autumn season; and it redefined a quo-
rum so that this number was one half of the assembly members
rather than one third. The governor was given the right to prorogue
the assembly after having set a date for this action, and the Home
Minister was only allowed to dissolve the assembly after obtaining
the Emperor’s sanction. The number of honorary prefectural coun-
cillors was increased to six, and their powers were more fully described.
With respect to the governor, the new law was explicit in giving him
general control over, and making him the representative of, the pre-
fecture. The governor was allowed to create, supervise, and discipline
municipal officials anywhere in the prefecture and to establish the
amount of their salaries, their travelling expenses and to determine
the way in which the allowances were to be granted. In the sphere
of prefectural finance the new law recognized the creation of a reserve
fund and a reserve stock of grain, and it permitted the collection of
rents and fees. In the levying and collection of prefectural taxes the
issuance of detailed regulations was deferred to Imperial ordinance;
likewise the allotment of taxes to the municipalities was left to the
determination of ordinances. A special account for the prefecture
78
For the same reason (note 77) the following text is taken from Chambliss
(note 2) at 547–548 [Ishii, loc. cit. at 473–474]. Chambliss says ‘rural division’ ( gun),
there is no difference in meaning to ‘rural district’.—This text and that marked
with note 77 give the reader hints at the former provisions.
was authorized, and the report on final accounts had to be deliv-

ered at a regular session of the assembly two years after the accounts
had been closed. The Home Minister was vested with the power to
issue ordinances and to take measures necessary for the supervision
of the prefectural administration. Such in sum were the chief amend-
ments, although the amendments of special importance were those
that perfected the provisions specifying the governor’s functions and
powers, and those that changed the election procedure for prefec-
tural assembly members. Under the old indirect method of electing
assembly members each rural division assembly and city assembly
had combined with its respective council to conduct the balloting,
but by the new system the ballots for the assembly candidates were
cast directly by the qualified voters. The indirect system, adopted
originally to avoid the waste of time and money as well as the con-
fusion and strife identified with the direct election system, had more
or less defeated its own purpose since it had caused over zealous
competition for the municipal assembly posts and had thus prevented
a sound development of local government. Therefore the change was
made in 1899 to the direct election system. To be an elector under
the new scheme of election, the individual had to possess these
qualifications: 1) be a resident of a municipality within the prefec-
ture, 2) be qualified to vote in a municipal election, and 3) be a tax
payer who had paid within the prefecture at least three ¥ in direct
national taxes a year previous to the election. The qualifications for
candidates were almost the same as under the old law. And the vot-
ing procedure followed the single, anonymous ballot, the candidate
receiving a majority of votes being elected.*
The Regulations Governing Rural District Organization were also
revised in 1899 mostly in coincidence with the change in prefectural
organization. Details of importance dealt with changes of the elec-
tion procedure for assemblies and councils. The right of the institu-
tion gun to exist was always being disputed, and after 1904 diet
members and the government attempted to have it discontinued.
The House of Peers objected, however, the rural district was finally
abolished under a law of 9 April 1921.79
IV. Parallel to the organizational regulations concerning local gov-

ernment, rules about office bearers or functionaries were introduced.
79
See also note 49.
120 public law
Since information on the executive in the self-government system

has been given above the following will concern the prefecture and
district offices.
1. The first authority charged with local administration—follow-
ing the short-lived chindai within which military command and civil
administration were combined—was the similarly short-lived chin-
shòfu80 controlling an area limited to regions near Tokyo (Edo) and
to the north-east = 13 provinces from Suruga to Dewa (now Shizuoka
to Akita). The chief of the chinshòfu was the chinshò (Literally: paci-
fying general).81 In accordance with the ‘Document on the Government
System’ (seitaisho) there was a three-fold division of powers within the
office. The chief had final authority in all matters pertaining to the
area of his responsibility. Senior ( gijò ) and junior councillors (sanyo)
had legislative duties, and administrators (benji ) had to carry out other
business; their duty was to follow the practices shown by the Executive
Office of the central government (dajòkan) at that time in Kyoto.82
The highest official of an urban ( fu) or rural prefecture (ken) was
the governor (chi/fu/ji or chi/ken/ji ). The post of a vice-governor was
created in the rural prefectures, and senior and junior councillors
(daisanji and shòsanji ) were installed. The same posts, plus an addi-
tional vice-officer each, were also included in the urban prefectures.83
By 1871 the prefectural system had been uniform throughout Japan
and the in-house organization of the prefectural office completed. In
the following years several laws and ordinances regulated details of
competence and responsibility. The officials in the early Meiji era
were mostly selected from the lower samurai class.84 The prefectural
office (kenchò and fuchò) developed into a rather large apparatus, the
organization of which varied a little depending on locality and time
but generally there were the following posts:85
80
See supra II. The chinshòfu existed from 3 September to 2 December 1868;
Ishii/Chambliss (note 2) at 152–153/200–201.
81
The official was the court noble Sanetomi Sanjò.
82
The dajòkan’s administrative authority covered the territory west of Suruga. When
the chinshòfu was abolished on 2 December 1868 the control of the 13 provinces
was transferred to the Accounting (or Finance) Office (kaikeikan) of the dajòkan and
soon afterwards to the Executive Office ( gyòseikan) of the central government.
83
Government Officials Order (shokuinrei) of 15 August 1869.
84
T. Òshima (note 57) typified the office bearers in the local administration from
the aspects of descent, loyalty, official discipline, loc. cit. at 96–101.
85
M. Òshima (note 73) at 7: table 1. Because the table is intended to demonstrate
the ranks of the officials (chokunin, sònin, hannin, and grades each, see p. 156), the list
is ordered in that sequence from high to low, the district posts are listed separately.
governor (chiji )
secretary (shokikan)
chief revenue official (shùzeichò, from 1884)
chief of police (keibuchò )
supervisor of prisons (tengoku)
vice-supervisor of prisons ( fukutengoku)
prison governor (kanshuchò )
prison secretary (kangokushoki )
police inspector (keibu)
police inspector’s assistant (keibuho)
lower revenue official (shùzeizoku)
-------
head of a district ( gunchò )
district secretary ( gunshoki )
councillor (sanjikan).
This list conveys the impression that the emphasis of the duties of
the prefectural office was put on police and prison affairs. This is
due to the sweeping term ‘secretary’. The secretary was the most
important official responsible for the wide range of civil administra-
tion. The six sections of the prefectural office (see above, state of
1875)86 were directed by the secretary whose post was divided into
senior and junior secretary.87 Each section consisted of other per-
sonnel also. In the course of time changes in details were made.
2. The district office ( gunyakusho) was established as a purely admin-
istrative section under the Law Governing the Organization of Rural
Districts, City Wards, Towns and Villages. An assembly and a coun-
cil were provided for, it is true, but the district head ( gunchò ) was
the leading person: he was the president of the assembly and sum-
moned it, carried out its decisions, controlled district property and
public works, created the district officials who were paid from pre-
fectural taxes, and, upon the decision of the assembly, also the officials
who at the expense of the district were in charge of the district prop-
erty, public works, and construction. However, it was the governor
who appointed, supervised, and dismissed these officials. The district
head was the only office-holder in the district council.
86
The civil court section (chòshòka), depending on circumstances, also kept watch
over domestic affairs of the prefecture, and moreover, punished criminals, and arrested
fugitives. The section existed from 1871 to 1875. The administrative police section
(keihoka) took its place.
87
M. Oshima (note 73) at 5 et seq.
122 public law
The supervision of the district office was the task of the governor
who was secondary to the Home Minister. But the activities of the
office were not very important, and the apparatus seems to have
been small.88
3. The administration of Hokkaidò was subject to special provi-
sions. The first local government was the Bureau of the Colonization
Commissioner (kaitakushi ) from 1869 to 1882. The office was well
equipped, the staff comprised of officials of all fifteen ranks of the Meiji
personnel system.89 In 1882 three rural prefectures (ken) were created:
Sapporo, Hakodate, and Nemuro. Four years later all Hokkaidò became
one administrative area controlled by the Hokkaidò Office (Hokkaidòchò)
and branch offices, and at the same time was granted the status of a
local self-governing unit. The relevant basic laws were enacted in 1901:
Hokkaidò Assembly Law and Law Concerning the Local Expenses
of Hokkaidò.90
4. When World War II came to an end the administrative orga-
nization was, strongly influenced by American systems, ordered anew.
Numerous committees for the regulation of activities of private trade
and industry were set up within the administration, similar to those
in the USA. In this way the citizens’ independent participation in
administrative matters was made possible. This new system democ-
ratized public life, and that, after all, was the goal after decades of
the rule of bureaucracy and militarism. Decentralization of author-
ity was another political objective, and so local autonomy was empha-
sized and firmly based on a specific chapter of the new Constitution:
88
As a rule, even the number of members of the district assembly was limited
to twenty—one member per town and village elected there. If more than twenty
were elected the assembly was entitled to enact a law of apportionment and have
it approved by the governor. If less than ten members were elected the number
could be increased to ten. Ishii/Chambliss (note 2) at 360/431. The council had
only five members. The staff of the office contained men in charge of special sub-
jects. They were of low rank and salary, even the district head was, in the early
years, a hannin; no sooner than in 1886 was his post raised or treated as equiva-
lent to sònin rank. M. Òshima (note 73) at 7 and 8.—Meiji kansei (Meiji Government
Organization), in Tokyo teikoku daigaku shiryò hensanjo (Bureau of the Imperial University
of Tokyo for compilation of historical materials), Dokushi biyò (Requisite for Reading
History), at 544 et seqq. [546] (1942).
89
Dokushi biyò (note 88) at 550.
90
Hokkaidò kaihò and Hokkaidò chihòhihò; the term chihòhi was used to describe
Hokkaidò as a local self-governing unit (S. Wagatsuma, ed., Shinhòritsugaku jiten
(Dictionary of Modern Jurisprudence), p. 905, headword ‘Hokkaidò ’, 1957). Under
the Local Autonomy Law (Chihò jichihò) of 17 April 1947 the head of the Hokkaidò
Office received the title chiji like the governors of the other prefectures.
articles 92–95. The voluminous Local Autonomy Law came into

force on the same day as the Constitution (3 May 1947) and has
kept the legislator busy ever since with reviews and amendments.
The foregoing remarks concentrated on the organization of govern-

ment. Now we must look at the substantive law of administration.
As mentioned in the first sentence of this essay, the government
over the people and management of the affairs in society, i.e. giving
laws, carrying them out, and restoring peace in case of disorder and
quarrel by disposing justice, were the undivided function of sover-
eignty from old times. Administration or executive was individualized
when the separation of powers was introduced as proclaimed in the
‘Document on the Government System’ (seitaisho) of 17 June 1868.
Of course, at that time there was no general law for the method
of administrative operations and the regular fulfilment of the officials’
duties. Due to the impossibility of creating new regulations extempore,
an imperial order of 17 January 1868 announced that the Emperor
would decide in all matters of state, that deliberative assemblies would
widely be engaged, and—most importantly from our point of view—
that the “just practices of government and good laws” of the past
bakufu would remain unchanged.91 The common interpretation of this
last point connects it with civil law, but nothing seems to stand in
the way of also applying that principle to the administration. This
view may be based on the fact that the said provision should be
characterized as customary law, and the first official definition of
‘custom’ was “whatever has been enforced by the prefectural offices
and law courts”, and “custom was not the customs and manners
observed by the common people” (1875).92 Continuing former practices
91
R. Ishii (note 2) at 37. In part: W. Chambliss (note 2) at 49.
92
This definition, issued by the Ministry of Justice, was caused by questions of
lawcourts concerning art. 3 of the Rules for the Conduct of Court Affairs (cited in
chapter ‘The Courts of Law’ of this book, p. 731). The rules referred to civil cases,
it is true, but civil cases included complaints against an action or order of a regional
authority or mayor (loc. cit. p. 731), i.e. administrative litigation.—A few years later
the Ministry of Justice changed the definition and included “popular custom, that
is the custom recognized by civil law as being traditional popular practice”.
Ishii/Chambliss (note 2) at 38/50.
124 public law
was meant to be a temporary substitute, however, a general law for

which the substitute was to function has never been enacted.
Standard instructions might have been derived from the idea of rule
of law (hòchishugi ), but this notion was neither universally acknowledged
by the legal scholars93 nor translated into administrative practice.
Also the principle of lawful administrative practice (hòritsu ni yoru
gyòsei ), an element of the rule of law, was legally established no
sooner than under the Constitution of 1947.94 Although Japan, by
enacting the Meiji Constitution in 1889 and modern laws on the
western pattern, had revealed earnest preparations for the stabilization
of a law-governed order (to the satisfaction of the foreign countries
which therefore agreed to the revision of the inequal treaties), the
principle of lawful administrative practice was not fully realized
because the Emperor, of course advised by the government, was
empowered to decree ordinances exempt from parliamentary con-
trol under arts. VIII and IX of the Constitution.95 ‘Lawful’ = ‘according
to law’ was interpreted as referring to laws resolved by the diet.
Finally, the search for substantive rules of administrative practice
could be focussed on judgements of lawcourts. As mentioned elsewhere
in this volume,96 at the end of 1872 people were permitted to chal-
lenge measures and regulations of local officials before a court of
law.97 Actionable items were enumerated, and from that list of five
points we may perhaps conclude the following general directions:
93
T. Minobe held the rule of law received as a positive norm into the funda-
mental law of Japan, and gathered that from a clause in the preamble of the
Constitution: “We now declare to respect and protect the security of the rights and
property of Our people, and to secure to them the complete enjoyment of the same,
within the extent of the provisions of the present constitution and of the law”.
S. Uesugi in contrast wrote: “Each individual belonging to the state is able to dev-
elop his personality fully through subordination to sovereignty. Absolute submis-
sion to sovereignty develops human personality and is the sole requirement for the
attainment of the highest ethic. . . . it is only as subjects that men achieve the pro-
per qualities of men. If men are to attain natural freedom, they can do so with-
out grief only by living in the character of subjects making up the state and submitting
to its sovereignty”. F.O. Miller, Minobe Tatsukichi, Interpreter of Constitutionalism
in Japan, p. 142 and note 68 p. 324 (1965).
94
S. Imamura, Gyòseihò nyùmon (An Introduction to the Law of Administration),
p. 10 (1973).
95
Ordinances under art. VIII required the subsequent sanction by the diet; in
case of refusal the ordinance lost its validity in future.
96
Actions against acts of local officials: Ködderitzsch, chapter 9.1; Röhl, The
Courts of Law, p. 723.
97
For details of the order (tasshi ) no. 46 of the Ministry of Justice see R. Ishii/
W. Chambliss (note 2) at 204 et seq./265; H. Wada, Gyòsei saiban (Administrative Adju-
– local authorities or town and village heads were not permitted to

create regulations or take action that contravened the laws of the
Council of State and the orders of the ministries,
– they had to take care of petitions, inquiries, reports, etc. of indi-
viduals without delay,
– the local authorities were not to obstruct the rights of individuals
by restricting their migration and travel,
– they had to make public the laws and orders of the government
within ten days of the date on which the announcements were
posted by the surrounding prefecture,
– the local authorities were not to issue instructions that, due to mis-
understanding and the like, were counter to the purport of gov-
ernment laws or ministerial orders.
In brief, the guideline for the local authorities was to observe the
laws and orders of the central government, to attend promptly to
supplications from the people, to respect the individual’s freedom of
movement, to instruct the people swiftly on laws and orders from
above, and to prevent misinterpretation of laws and orders.
Even if we could see traces of substantive law of administration
in these points we must keep in mind that the practice was hampered
by further regulations. On 2 September 1874 the government, via the
Ministry of Justice, enacted the Provisional Order Governing the Hand-
ling of Legal Actions of Individuals Against a Chamber of the Council
of State, a Ministry, the Colonization Bureau (Hokkaidò), or a Pre-
fecture ( Jinmin yori in, shò, shi, fuken ni taisuru soshò toriatsukai ni tsuki
karikisoku). These regulations divided the administrative actions into
two groups: (i) suits of individuals without interest of others—to be
treated as civil litigation, (ii) suits of individuals affecting the inter-
ests of the general public—administrative litigation. In the latter case
the judge had to submit a detailed report to the government and
await the directions of the Central Chamber. In both cases the judge
had to report on the particulars and the possible outcome of the
adjudication if there was cause for the government to pay compensation
to an individual. These orders enabled the government to play a part
in the adjudication of administrative lawsuits by issuing directions,
by using its discretion, thereby interfere arbitrarily, and exclude the
control of the administration by the judicial power.98 To involve the
dication), in vol. 3 of the ‘Lectures. . . .’, cited supra note 5, at 102. In those works re-
marks on earlier administrative offices which dealt with complaints can also be found.
98
H. Wada (note 97) at 103. R. Ishii/W. Chambliss (note 2) at 205/266. It is
126 public law
top governmental level in cases of compensation shows that the re-

quirement of a report was grounded not on budgetary considerations
(in that case a report to the Ministry of Finance would have been
appropriate or the knowledge of the office as a party to the suit
sufficient), but on the intention of the authorities to keep a position
of prime importance in the administration and not to be obstructed
by a lawcourt.
The division of actions into two groups against the said authorities
caused confusion; therefore, on 22 January 1876, it was ordered that,
until further regulation, all those actions had to be reported to the
Ministry of Justice, upon the approval of which the court could take up
the suit. Under an order of 9 May 1878 hopeless cases of compen-
sation payable to an individual became exempt from being reported,
but some weeks later this order was repealed, and the authorities were
to be informed on any such case, regardless of the possible outcome.
These, and other orders pertaining to the subject matter, reveal that
the authorities could meddle with the business of the lawcourts and, as
such, stood in the way of the development of substantive law by set-
ting precedents. In general, the lives of the common people were at
the mercy of the administrative power.99
The principle of rule of law and the forming of a law-governed
state was partly realized by the establishment of the Court of Admin-
istrative Litigation in 1890.100 But it was an incomplete achievement
because the organization and competence of that court were limited,
and the people’s way of having harm or damage repaired was insuffi-
cient. There was only one Court of Administrative Litigation in Tokyo,
hardly accessible for inhabitants of remote areas, and an appeal
against its decisions was not provided for. The actionable matters
were enumerated in the Law on Cases for Administrative Adjudication
of Illegal Dispositions by Administrative Authorities (Gyòseichò no
ihòshobun ni kansuru gyòseisaiban no ken) of 10 October 1890.101
also worth mentioning is that the ‘cause’ for compensation is jòri in Japanese. That
means ‘rational (or common) reason’, it was the basis of the decision in civil cases
if neither law nor custom could support the judgement, see p. 731. By means of
jòri general directions, if any, might have become inapplicable.—The subject mat-
ter is briefly dealt with by B. Elben, Staatshaftung in Japan (The Responsibility of
the State in Japan), pp. 49–56 (2001).
99
S. Imamura, Gyòseihò nyùmon (A Guide to the Administrative Law), p. 11 (1966).
100
The notion of administrative jurisdiction had already appeared among the
themes of H. Itò’s study in Europe, see chapter ‘Constitutional Law’ in this vol-
ume, p. 46.
101
See p. 634.—If a claim for damages could be concluded from the judgement
Apart from the argument about whether administrative action

according to general guidelines possibly articulated in a judgement
of a lawcourt102 would fulfill the principles of lawful practice and the
collective tenet ‘law-governed country’, or if a formal law would legit-
imize the practice, the judgements of the Court of Administrative
Legislation hardly produced reliable hints about standards for the
administrative business. Taking legal action was a rare event. Most
of the judgements concerned procedural problems, local administra-
tion, and taxes.103 Details of court proceedings, matters of diverse dis-
tricts under different circumstances, and individual tax assessment
rarely gave rise to the creation of generally binding principles in the
field of substantive law of administration.
However, a few general rules can be found in the review of eight-
een judgements including those of civil courts by Wada:104
1. Limitation of proprietary rights by an ordinance.
a) A prefectural ordinance of 1898 regulated the control over
earthworks relating to the common utilization of water and ordered
that anybody who without permission had commenced such works
should be commanded to restore the original form at his expense.
The plaintiff had built a fishpond on his piece of land. The gover-
nor of the prefecture concluded that the pond affected the common
utilization of water traffic and, based on the said prefectural ordi-
nance, ordered the plaintiff to remove the fishpond and restore the
original form. The plaintiff pleaded that the ordinance which restricted
the proprietary right of the people was null and void because it was
outside the governor’s authority.
b) The Administrative Tribunal decided: “Since under the Official
Organization of Local Offices (Chihòkan kansei ) the governor is autho-
rized to issue ex officio prefectural ordinances concerning adminis-
trative measures of the prefecture the ordinance about construction
work relating to the common utilization of water lies within the
of the Court for Administrative Litigation the party could make an application to
a court for civil cases.
102
Round table talk in ‘Lectures’ (note 5), vol. 4, at 338 (1958).
103
H. Wada, Gyòsei saiban (Administrative Judicature), in ‘Lectures’ (note 5), vol.
3, at 125–135 and note 5 there at 127.
104
Loc. cit. (note 103) at 136–156; the following text refers to the judgements
no. 1 at 137, 3 at 139, 12 at 146, 18 at 155.
128 public law
range of his authority. Therefore, the order based on the prefectural

ordinance is legitimate.
c) The decision has been commented on controversially. Disagreeing
annotators refer to art. 27 of the Meiji Constitution,105 those in agree-
ment founded their opinion on art. 9 of the Constitution (the right
of the emperor /= the government/ to issue ordinances) and art.
206 of the Civil Code.106—The prefectural ordinance was interpreted
as being part of administrative police regulation, and so the court
was regarded as clinging to the ideology of the administrative or
police state.
Anyway, the administrative authorities could take for granted that
‘law’ in ‘lawful administrative practice’ (hòritsu ni yoru gyòsei ) included
ordinances.
2. a) A prefectural governor had mediated as a private person in a

dispute about the design of water works between a city and an
affected village and issued a written decision. Some years later the
governor annulled that decision. The village took legal action.
b) The Administrative Tribunal dismissed the action and found:
The prefectural governor could not, by means of an administrative
proposal, alter the civil legal relations which existed between the city
and the village. The disposal by which those relations should be
altered did not have the effect of altering the extant legal relations
and cannot be regarded as an administrative disposal; therefore legal
action against it cannot be taken.
c) The judgement accepts that the administration may not interfere
with civil legal relations. It was criticized on two points: (i) That the
governor having mediated in his capacity as an ordinary citizen might
allow the assumption that it was a civil case. It was actually a case
to be dealt with under the Law Concerning Water Facilities and
Engineering Works of 1890, and consequently administrative litigation
could be commenced. (ii) The court had neglected the difference be-
tween a non-existent and a void administrative disposal. A disposal
existed but it was voidable and should have been declared void.
Consequently, the court should have given judgement for the plaintiff.
Nevertheless, the administrative authorities could assume that they
105
The proprietary right of any Japanese subject is inviolable.
106
On limitation of the proprietary right “within the bounds prescribed by law
or ordinance”.
were not empowered to interfere with civil legal relations by means

of administrative disposals.
3. A judgement of the civil division of the Supreme Court of June

1916 concerning the obligation of the state to pay for damage done
was praised as epoch-making.
a) A pupil of a municipal elementary school fell from a rotten
swinging pole belonging to the school, and died. The youth protec-
tor took legal action against the city for compensation.
b) The Osaka High Court considered art. 717 of the Civil Code107
to be applicable, and the Supreme Court approved.
c) In Meiji Constitution’s times there was no rule governing the
liability of the state under public law, and under such circumstances
such liability was negated. The Supreme Court argued that the super-
vision of the establishment of an elementary school structure means
possession under civil law. Afterwards it came to consistent negation
of the liability for compensation of damage done by official admin-
istrative actions. As there was also no liability of the public servants
personally the sufferer had no chance of getting compensation.108
4. Compensation for damage done by an employee of a public

corporation.
a) In order to examine a sluice, a water guard of an irrigation
association opened the floodgate “in the capacity of executing a pub-
lic right”. This caused fishfarmers to be harmed.
b) The civil court judged that there were no legal relations between
the employee performing his duty and the injured party. The action
of the employee was to be regarded as the action of the irrigation
association as a public corporation. The employee was not legally
obliged to compensate for the damage.
c) Commenting on the judgement, Wada argued that the employee
had acted beyond the boundary of his duty, the meaning of which
107
Regulating compensation by the possessor or owner for damage done to a
person because of a defect of the construction or preservation of a structure.
108
N. Imamura, Kokka baishò (Compensation by the State), in H. Suekawa (ed.),
Minjihògaku jiten (Dictionary of Civil Jurisprudence), vol. 1, pp. 603–604 (1960).—
Three theories were held among the scientists regarding the personal liability of an
official under civil law. The official was liable (i) only in case he had acted under
private law, (ii) if in all his acts he was the de facto doer, (iii) if, apart from inten-
tion or gross negligence, there were numerous cases in which the illegality of an
official act of his had been disproved and the claim for damages denied.
130 public law
was not to do damage to others. Consequently the water guard had

not performed his official duty and was liable to pay compensation.
The judgement pursued the trend that the state (or a public cor-
poration) could not be declared liable under public law, and also an
official could only be held liable under civil law. The usual prac-
tice, if any, of the courts to apply civil law in such cases finally gave
up the principle of refusing compensation for damage caused by
authoritative actions of the administration.109
No sooner than in 1947 the State Compensation Law (Kokka baishò
hò ) was enacted. It followed art. XVII of the new Constitution and
regulates the liability of the state and the public bodies (kòkyòdantai ).
If there are no special laws the Civil Code (Minpò) is applicable.
Because of the lack of a general code governing substantive law, the

tasks of administration, the way the work had to be done, and the
rights and duties of the functionaries must be looked up in special
laws and ordinances for the single branches of the administration.
Since this essay is not meant to be a comprehensive textbook and
the scope of the topic so vast, the instancing must be limited to a
few brief remarks only:
I. Commonly the large mass of administrative operations is divided
into intervening, regulating, and providing administration (shingai-,
kisei-, and kyùfu gyòsei ).
1. Intervening administration affects the property or the freedom of
a person.
a) Taxation. In order to straighten out the hitherto complicated
and varied methods of collecting taxes the government introduced a
land tax reform on 28 July 1873. The land tax was the main source
of the state’s income. An imperial edict accompanied the Land Tax
Reform Regulations (Chiso kaisei jòrei ). The edict stated that by way
of efforts of officials and the Cabinet the diversity of taxation had
been reduced to a fair and uniform procedure, and expressed the
hope of the Emperor “that the tax be levied impartially in order
that the burden may be shared equally among the people”. These
109
N. Imamura, (note 108), loc. cit.
words lead the administration to understand the principles of dealing

with taxation business.110 The significant points of the reform were
that the land tax was no longer levied on account of the amount of
production but on the land value fixed by a survey, and that it had
to be paid in specie rather than in kind. The regular tax rate was
three percent. A modern right of ownership was established as a
consequence of that reform.
In the years following many new taxable items were introduced,
tax legislation became more extensive, and the principle was established
that the imposition of new taxes or the modification of existing ones
could only be determined by law; this was strengthened by inclusion
in the Constitutions of 1889 (art. LXII para 1) and 1947 (art. 84). This
principle of lawful taxation (sozei hòritsu shugi ) had already been seen
in relative terms in Meiji times. The management of taxation was
performed not by bureaucratic authoritarianism alone but by officials
consulting with influential civilians, especially men of high reputation
in their region.111 One may assume that this system was open to a
wide interpretation of the legal conditions. The interaction of bureau-
crats and notabilities made it unnecessary to conduct an inquiry into
the effectiveness of the written law, and, therefore, the laws did not
experience a further development. Finally, in the early Shòwa time
the management of income taxation was carried out in the form of
administration by decree (tsùtatsu gyòsei ). The land tax, formerly cal-
culated on the registered value of the piece of land which could not
be disputed by means of legal action, began to be based on the vari-
able lease value in individual cases. Collective local taxes owed were,
in consultation with the notables and based on estimation, allotted
to the single households; thereby preponderances were likely to
occur.112 With regard to this, the Regulations for the Household Rate
of Prefectural Taxes ( fukenzei kosùwari kisoku) were enacted in October
1921, by which the system of taxation was standardized all over the
country. There remained, however, regional differences in the burden
110
Detailed information on the land tax reform can be found in many textbooks,
essays, and dictionaries of history. For a concise description see R. Ishii/W. Chambliss
(note 2) at 130–141/176–186 and 722.
111
The Income Tax Law of 1887 and the Business Tax Law of 1896 introduced
committees for investigating income (and business respectively) tax with the right
to be consulted.
112
Y. Yamamura and M. Katò, Zaiseihò (Finance Law) in ‘Lectures’ (note 5),
vol. 10, p. 99 et seqq. [148–152].
132 public law
of the taxpayers. Finally, in March 1940, the allotment of house-

hold rates was abolished and substituted by a local inhabitant’s tax
(shichòson minzei ).113
A particularity of former times may be added:
Before the Meiji era local taxes assessed by the local authorities (deputies
of the bakufu or the feudal lords) were levied on the villages where the
apportioning of the taxes to the villagers was left to the village assem-
bly. If a person failed to meet his obligations not only he, but also his
family and the five-man-group of which he was a member, were held
responsible. That system was done away with soon after the restoration.
b) Expropriation
When the feudal system was abolished, the bakufu’s ban of 1643 on
the final sale of fields114 was repealed (23 March 1872), and the pri-
vate ownership of fields was introduced for common people.
Nevertheless, the government saw to it that sites could be requisi-
tioned for public use. On 28 July 1875 the Regulations Governing
the Purchase of Land by the State for Public Use (Kòyò tochi kaiage
kisoku) were issued.115 Under these regulations high authorities of the
state (cabinet, ministries, prefectures) could, in order to provide the
country, districts, villages, or cities with facilities for their preserva-
tion, purchase privately owned land. In order to prevent misuse by
the authorities the purchase should be made only if the possession
of the land was absolutely necessary. In this case the private owner
could not avert the purchase. The price was set in accordance with
the purchase price as fixed in the title-deed.116 The requirement was
announced and carried out by the authority in need of the land;
the whole procedure was an administrative operation.
The Regulations were replaced by the Land Expropriation Law
(Tochi shùyò hò) of 1889, and in 1890 rules for the land expropriation
113
For details see H. Yoshikawa, Kosùwari (Household Rate, Assessing Taxes
According to the Number of Houses), in Nihon rekishi daijiten (Great Dictionary of
Japanese History), vol. 8, p. 117 (1958).
114
Tahata eidai baibai kinshi. ‘Final sale’ means sale for ever. It was a sale in the
modern sense: abandonment of the right to a property. The ban on ‘sales for ever’
had been preceded by similar clan legislation. Another kind of sale was the dis-
posal for a fixed period of years (nenkiuri ) which was used as a means of security
for a loan or other debts. M. Takigawa, Nihon hòseishi (History of Japanese Law),
pp. 439, 443 (1959), and other books on the same subject.
115
On 8 December 1882 two articles were added.
116
When private ownership was established the owner was given a title-deed
which certified his right. Also the value of the land was written in the document.—
committee, introduced by that law, were enacted. These were fore-

runners of the new Land Expropriation Law (Tochi shùyò hò ) of 7
March 1900, which kept much of the spirit of the previous system
and enumerated the enterprises which were entitled to take private
property into their ownership (shùyò ) or into their use (shiyò ). This
law remained in force until it was extensively revised by the present
Land Expropriation Law of 9 June 1951.
The object of the law of 1900 was briefly defined in art. 1: For
the sake of enterprises which serve the public interests these enterprises
may, under the provisions of this law, expropriate or use a piece of
land if this land is needed for their business and must necessarily be
expropriated or be taken into use, namely by those concerned in
i.national defence or other military matters,
ii.works on imperial tombs, or shrines and temples, or public offices,
iii.social work, education, or science,
iv. public establishments (22 items), e.g. railway, roads, bridges, rivers,
public utilities,
v. health care, prevention of fire, flood damage, or storm damage,
beacons on navigation routes, meteorological observation, or other
equipment for public use.
The law regulated in detail the procedure of expropriation from the
first steps of the entrepreneur in order to obtain the permission of
the Home Minister (or other responsible ministers), through to the
official announcement of the details by the regional authority, involve-
ment of local offices, enquiry into the legal conditions regarding the
property, commitment of the Expropriation Examining Commission
(Shùyò shinsakai ), compensation for losses to the owner and persons
concerned, effect of the expropriation, and costs. He who objected
to a decision of the commission could appeal to the Home Minister.
If a decision of the commission infringed the law and thereupon
injured a right of a person, this person could take legal action in the
Court of Administrative Litigation.
All in all the Expropriation Law of 1900 gives the reader the impres-
sion that it corresponded to the idea of rule of law and that in prac-
tice the cases were dealt with in such a way that there were only rarely
grounds for legal action.117 In view of the rapid development of
117
H. Wada (note 103) at 129–132 records that there were 71 cases in peace-
time before 1914 (plus about 10 cases concerning procedural problems).
134 public law
industry and commerce in the late Meiji years, especially after the
Japanese-Russian war, the need for land for factories must have been
urgent, and accordingly the purchase of land or, if an agreement
could not be reached, expropriation, might have been a frequent
event. The small amount of administrative litigation (see note 117)
indicates that many cases were settled in harmony—the owner pos-
sibly growling but at the same time aware of his position regarding
the influential enterprises, or loyally acknowledging the national pol-
itics defined in the maxim ‘wealth and military power of the nation’
( fukoku kyòhei ).
Amendments seemed to be appropriate following World War II. A
new Expropriation Law was enacted on 9 June 1951. The old law
had 88 articles; the new one consists of 146 articles and has repeat-
edly been revised. The purpose of the new law as defined in art.
1, emphasizes that it aims at harmonizing the promotion of public
interests and the disposal of private property, and that it will hereby
contribute to a reasonable and rational use of the land. Nearly fifty
categories of enterprises which may expropriate or take for use are
enumerated in art. 3. The former Expropriation Examining Commis-
sion is made democratic and renamed ‘Expropriation Committee’
(Shùyo i’inkai ).118 A committee is assigned to each of the prefectural
governors but operates independently. The seven members, and at
least two members in reserve, must have outstanding experience and
knowledge of law, economy, and administration and be able to judge
impartially about public welfare. They are appointed by the prefec-
tural governor requiring the assent of the prefectural assembly, art.
52. After extensive administrative preparations, involving also the
Ministry of Construction, the enterprise applies to the committee for
a decision. Prior to making the decision the committee may endeav-
our to mediate between the parties or persons otherwise concerned.
2. The main commission of the regulating administration is the police

and the duties of its special branches.
a) The organization of the constabulary should briefly be intro-
118
Under art. 38 of the old law the commission fell under the control of the
Home Minister and consisted of a president and six members, three of whom were
high civil servants and the three other prefectural honorary councillors. The civil
servants were nominated by the Home Minister, the councillors elected by the
assembly of the honorary councillors.
duced.119 When the new regime replaced the bakufu one of the most
important matters of concern was to restore and secure order in the
bakufu’s capital Edo. In May 1868 the Edo castle was taken by the
eastern vanguard of the imperial troops, and the authority above the
municipal police force was given to the two former Edo magistrates
(Edo machibugyò),120 with the order that the existing mode of police
control should remain unchanged for the time being. A few days
later three other bakufu officials were charged with control over the
police, and twelve domains had to provide policemen on patrol in
Edo. In order to quell a rebellion against the government the city
patrols were turned over to the government’s army, and by quashing
the rebellion in June 1868 the Meiji government won complete con-
trol of Edo. In July 1868 the Edo garrison (chindai )121 was established,
and municipal offices (shisei saibansho)122 took over the police business
as successors to the Edo magistrates. Their own corps of constables
as well as soldiers from four domains patrolled the streets and had to
arrest thieves, robbers, and other lawless elements. Like other state or
governmental institutions the organization of the police also underwent
several changes in quick succession regarding responsibility and sub-
ordination to a branch of administration. The two municipal police
offices were replaced by the Tokyo prefectural government once the
Tokyo prefecture (Tòkyò-fu) had been created in September 1868 and
the chinshòfu (see above) dissolved. Tokyo was divided into 47 guard
districts, and thirty domains provided the patrolmen. Since it was
the business of the War Office (later: War Ministry) to acquire the
patrolmen from the domains, the Tokyo prefecture could not effectively
decide how to engage them. At the request of the Tokyo prefecture
the government transferred the authority and jurisdiction over the
troops to the prefecture in January 1870. The 47 districts were reor-
ganized into six large districts, and each district’s unit of troops was
119
R. Ishii/W. Chambliss (note 2, pp. 186/240 et seqq. P. Schneider, Polizei
und Gefahrenabwehr in Japan—aus Sicht der deutschen Polizeirechtslehre (Police
and Prevention of Danger—As seen from the German Science of Police Law),
p. 31 et seqq. (2000), with further references.
120
T. Ishikawa and N. Sakuma who had been appointed Edo machibugyò by the
old government shortly before the capture of the Edo castle (Dokushi biyò, note 88,
at 520). One of the two magistrates controlled northern Edo, the other the south
of the city. They were responsible for the civil administration including the police.
121
See above p. 99.
122
Saibansho as the denomination of early administrative authorities, see chapter
‘The Courts of Law’.
136 public law
now designated by the number of the district and no longer by the

name of its domain. The number of Tokyo prefecture’s own policemen
amounted to about 1,500 in March 1870, compared with the original
figure of 2,100. The prefecture also took over the control from the
War Ministry, of a special unit123 for the protection of the foreigners’
settlement at Tsukiji in Tokyo. In addition to these police forces124 the
five-man-group and civic guard organizations of Edo tradition were
active in performing tasks of police nature. The Tokyo police system
served mutatis mutandis as an example to local police structures.
When the domains were abolished in August 1871 the existence of
domain troops as police units in Tokyo lost its basis, and the external
units were disbanded. The metropolitan police was reorganized and
unified. On 5 December 1871 Tokyo was provided with 3,000 police-
men (rasotsu) enlisted from several prefectures. Each of the six large
districts125 was subdivided into sixteen small districts, and every small
district had a police station (rasotsu tonsho) staffed with one captain
(kumigashira) and thirty policemen (kumiko, denomination of a rasotsu as
a member of the local group), three of them being sergeants (kogashira).
For a short while the ancient Imperial Police Department (danjòdai )126
was revived on 1 July 1869. The inspection (kansatsu) section of the
Penal Law Office127 was simultaneously abolished.128 The old danjòdai
had been created in the early 8th century and positioned indepen-
dently beside the eight ministries of the government. The duties of
that office were to cleanse the manners and customs inside (both wards
of Kyoto) and outside (five provinces adjoining Kyoto and other areas)
as well as to investigate and report on wrongdoing.129 In the 9th cen-
tury the functions of the danjòdai became the business of the kebiishichò
123
Bettegumi, created in late bakufu times. Dissolved in 1872.
124
Some months later increased by an additional thousand men.
125
Daiku. In each daiku a police branch office (torishimari shutchòsho or daikuyakusho)
was installed under a commanding officer. At that time the police force was called
torishimari (= control, watch), and a police unit was torishimarigumi. In June 1872 the
term rasotsu was used for the Tokyo police as a whole.—The legal basis of the reor-
ganization was the ‘Outline of Rules for the Police units’ (torishimarigumi daitai hòsoku)
and the ‘Ordinance Governing the Police’ (torishimari kisoku) of January 1872.
126
W. Chambliss (note 2), p. 245, and others call it ‘Censorate’.
127
See chapter ‘The Courts of Law’, § 2.
128
Shihòenkakushi (History of Justice), note 5 in chapter ‘The Courts of Law’,
p. 6, on Meiji 2, 5th month, 22nd day.
129
N. Ariga, Nihon kodaihò shakugi (Exposition of Old Japanese Law), p. 46 (1908).
M. Sekine/T. Katò, Yùsoku kojitsu jiten (Dictionary of Ancient Practices and Usages),
p. 482 (1925), held the danjòdai to be similar to the modern administrative court.
(Police Office); the danjòdai continued to exist in name but not in deed.
Revived in 1869 the officers were denominated under the ancient titles.
Their duty was to make tours of inspection in all parts of the coun-
try and also investigate law violations. Moreover, the danjòdai employed
secret agents who had to seek out and obtain definite proof of good
deeds and sinister plots among the people. On 24 August 1871 the
danjòdai was dissolved when the new police organization was intro-
duced.
The control of the Tokyo police (rasotsu) fell to the Ministry of Justice
in September 1872. There, the Police Bureau (keihoryò ) was created
to function as the administrative police with nationwide authority.
The denomination of the officers was changed: Six ranks of subor-
dinates: senior, middle, and junior sergeants (zoku) and their substitutes
were below the top officials (kami, gon no kami, suke, gon no suke). Under
this national or central Police Bureau the metropolitan police had a
staff of its own: chief (daikeishi ) and his substitute, junior chief (shòkeishi )
and his substitute, and four ranks of sergeants (keibu). The superintendent
of the rasotsu, T. Kawaji, became suke of the Police Bureau and con-
currently daikeishi of the metropolitan police.130 The Police Bureau
dispatched officers to each district to supervise the local police per-
sonnel,131 which had replaced the disbanded troops of the prefectural
guard. Besides this, the Ministry of Justice employed civilian watchmen
in Tokyo who were set up and paid by the community; when put
into official service they were appointed by the authorities but also,
in this case, paid at the expense of the people (minpi ). They were
called patrolling constables ( junsa), a type of policemen in addition
to the rasotsu (organized and paid by the central government) and
the bannin = watchmen (created and paid by the community).
These administrative police forces and the Police Bureau were trans-
ferred to the Home Ministry on 9 January 1874 while the judicial
130
Shihòenkakushi (History of Justice), compiled by the Ministry of Justice and
edited in 1939 by the Hòsòkai ( Jurists’ Association) on the occasion of the 50th
anniversary of the Saibansho kòseihò (Law of the Constitution of the Courts), pp.
18–19, under Meiji 5/8/28 = 30 September 1872.—Toshiyoshi Kawaji had visited
Europe and studied the police systems in several countries. He made a great con-
tribution to the renewal of the Japanese system. He pleaded for and carried out
the separation of administrative and judicial police as well as more power for the
administrative police.
131
The successors of the prefectural guard troops were hobòri = regional officers
responsible for pursuance and arrest of criminals, torishimarigumi = surveillance groups,
bannin = watchmen.
138 public law
police remained with the Ministry of Justice. Six days later the gov-
ernment established the Tokyo Metropolitan Police Office (Tòkyò
keishichò ) which took over the administrative police-force of the capital.
The junsa, rasotsu, and bannin were placed under its authority; some
months afterwards the rasotsu were renamed junsa132 and the bannin
done away with. These changes went along with the organization
of the administrative police outside of Tokyo under the Regulations
Governing the Administrative Police (Gyòsei keisatsu kisoku) of 7 March
1875, enforced from 1 April 1875. In December 1875 a definite
standard of deployment was fixed by the Home Ministry, creating
a network of police districts, police stations, and sub-stations. When
the government undertook to suppress the revolts in western Honshù
and northern Kyùshù in 1877 and restore peaceful conditions in the
South-West, the whole police force came under the control of the
Home Ministry, where the Police Secretariat (keishikyoku) was estab-
lished. The head of it had to perform the duties of the judicial police
concurrently. In January 1881 the former organization (national Police
Bureau, metropolitan police) was in principle restored.
At the same time it was announced that a gendarmerie was created
within the army, and on 14 March 1881 the Regulations for the
Gendarmerie (kenpei jòrei) were issued. The gendarmerie was a military
police. The gendarmes inquired about wrongdoings by soldiers, but
served also as administrative and judicial police, and so simultaneously
performed official duties of the Army, Navy, Home, and Justice Ministries.
Gendarmerie headquarters were established first in Tokyo, then in
every military district and the kenpeitai (gendarmerie troop) organized.
In the 1890s the sphere of activity was extended; the kenpeitai devel-
oped to be much the same as a general police and increased its oper-
ations to the maintenance of public peace and order. The troops were
deployed to quell disturbances: e.g. rebellious fire-raising in Hibiya
(Tokyo) on 5 September 1905;133 people’s movement against the polit-
ical influence of the clan faction, military clique, bureaucracy, and
132
This word for the common policeman or constable has outlived the times,
art. 62 of the Police Law of 8 June 1954. Also the word keisatsu was used for police
from the mid 1870s.
133
The people regarded the peace treaty of Portsmouth which ended the Japanese-
Russian war to be too lenient from the Japanese point of view, and was about to
hold a protest meeting at Hibiya park in Tokyo which was stopped by the police.
Thereupon the crowd attacked and set fire to the Home Minister’s residence, numer-
ous police offices and boxes, the Christian church, streetcars etc. The riot went on
for three days. Hibiya yakiuchi jiken.
elder statesmen in February 1913;134 rice riot in 1918;135 turbulences

following the earthquake of 1 September 1923.136 The kenpeitai also
operated in Taiwan and especially in Korea where it spied on anti-
Japanese reactions. Over the years it gained the position of an omnipo-
tent instrument for surveillance and dreaded persecution. The kenpeitai
was done away with on 2 September 1945.
The twofold structure of the administrative police: the nationwide
office ‘Police Bureau’ (keihokyoku) as the highest responsible institu-
tion under the control of the Home Minister,137 and separately the
Metropolitan Police Office (keishichò) which, superintended also by
the Home Minister, administered the police affairs in Tokyo,138 con-
tinues to exist in a basic form to this day. Under art. 42 of the
134
Triggered by the transition from the 2nd cabinet Saionji to the 3rd cabinet
Katsura on 21 December 1912. The shift from a peer to a high army officer and
incumbent Home Minister for Prime Minister, caused by the collapse of the Saionji
cabinet due to a dispute about the increase of the army divisions, was understood
to be taraimawashi (monopolizing political power within one’s own clique) and gave rise
to the formation of the movement for safeguarding constitutional government ( goken
undò = abbreviation of kensei yògo undò), the followers of which demanded party cab-
inets and, on 10 and 11 February 1913, assaulted newspaper offices and several
police stations in Tokyo.
135
Komesòdò. Of the three riots of 1890, 1897, and 1918 the last one was the
most widely spread and violent protest against the price increase of rice. Details
can be looked up in every historical dictionary. The political outcome of the upris-
ing was the resignation of the Terauchi cabinet and the founding of the first party
cabinet by Takashi Hara (Rikkenseiyùkai = Constitutional Party of Political Friends)
on 29 September 1918.
136
The enormous losses of life and houses brought about instability of public
feelings and behaviour. The impending chaos instigated the Emperor to proclaim
martial law in defined areas under the Law of Siege of 5 August 1882. Thereby
the regionally commanding officer of the army was entrusted with far-reaching
administrative and judicial authority.
137
From 1886 the Bureau also guided the regional administrative police.
138
The Metropolitan Police, not being part of the administration of the gover-
nor of Tokyo prefecture, was exempt from the regional jurisdiction of the Police
Bureau, the chief of the keishichò reported directly to the Home Minister. The duties
of these men were to act as a police force, to prevent and extinguish fires, and to
do service in prisons. One special section of the keishichò was as ‘political police’
(kokuji keisatsu) responsible for investigating subversive activities against the state. At
first not clearly defined, the duties were formulated as follows in 1881: ‘to secretly
search for and prevent political crimes’, i.e. crimes against the emperor and his
family, rebellion, treason, crimes against allies in wartime, as enumerated in arts.
77–89 of the Penal Code. R. Ishii/W. Chambliss (note 2) at 388/461. K. Hosokawa
(note 2) at 9.—Under art. 247 of the Code of Criminal Procedure of 1922 the
chief of the keishichò (now called keishi sòkan) as well as the governors of the pre-
fectures and the provost marshal in the capacity of judicial police were within the
sphere of their authority vested with the rights of a district public prosecutor. From
1886 the political police was called ‘higher police’ (kòtò keisatsu), and in 1911, on
140 public law
Police Law (Keisatsuhò ) of 8 June 1954 the head office of the Tokyo
police is still called keishichò,139 while the other prefectural police head-
quarters are dòfuken keisatsu honbu (headquarters of Hokkaidò, munic-
ipal and rural prefectures). They all operate under the control of the
Public Safety Commission (kòan i’inkai ).140
b) The tasks of the constabulary, as taken over from the bakufu system
and for some months carried out in the city of Edo by the two town
magistrates and their subordinates, were diverse and allotted to spe-
cial groups. There were arson, theft, and gambling inspectors, fire
lookouts and fire fighters, and guards for preventing edifices or piles
of lumber etc. from being built so high that they were a menace to
the public. Other groups and officials dealt with ordinary police work
serving the safety of the locality and the inhabitants.141 In addition,
the constabulary of that time performed the duties of the judicial
police by searching for criminals and arresting them. The constables
of low rank, the yoriki and dòshin, who were engaged in many tasks,
also had to make inquiries about lawbreakers. As the separation of
powers was not yet realized the Edo magistrate (machibugyò ) was also
legally competent to sentence a wrongdoer;142 the dòshin made the
investigation, and the yoriki, who were their superiors, returned the
verdict.143 In many regions outside Edo police forces had been orga-
nized similar to those of the metropolitan order.
When the Police Bureau (keihoryò ) of the Ministry of Justice was
the occasion of the uncovered plan of anarchists to assassinate the Emperor, an

additional subdivision ‘special higher police’ (tokkò keisatsu) was founded in order to
repress socialist movements. Following the wide-ranging persecution of communists
in 1928, offices of the special higher police were established in every prefecture.
Henceforth this branch of the police was engaged in carrying out the laws gov-
erning the maintenance of public peace and order, and on the pretext of them sup-
pressed any democratic movements. Officers were also dispatched abroad (Shanghai,
London, Berlin) to seek information and possibly to arrest suspects (Nihon kindaishi
jiten [note 20] at 426).
139
Under a by-law the Osaka police headquarters are also known as keishichò.
S. Wagatsuma, ed., (note 90) at 217.
140
This was a national commission and prefectural commissions.
141
R. Ishii, Edo jidai manpitsu (Miscellany on the Edo Period), vol. 1, chapter 3
to 6, pp. 25–48, acquaints us with various types of policemen in a readily com-
prehensible approach.
142
The same went for the Temple and Shrine Magistrate ( jisha bugyò ) and the
Finance Magistrate (kanjò bugyò). R. Ishii, Nihon hòseishi ( Japanese Legal History),
p. 145 (1959). NB bugyò is also translated as ‘commissioner’.
143
R. Ishii (note 141) at 31.
instituted (see above) its purpose was officially defined “to maintain
peace and order throughout Japan, protect the health of the peo-
ple, and to take precautionary measures against persons obstructing
these objectives”.144
On 7 February 1874 the Service Regulations and Rules for the
Metropolitan Police Office (keishichò shokusei shòtei narabi ni shokisoku)
described the purpose of the police as follows: “to prevent the peo-
ple from suffering injury and to secure the public peace”, and classified
the functions under the four topics of ‘rights, health, morals, and
political affairs’:145
I. The police must protect the rights of the people and safeguard
their property.
II. The police must take measures to safeguard the health of the peo-
ple and protect their lives.
III. The police must suppress immoral conduct and purify popular
habits.
IV. The police must secretly hunt down and take preventive action
against political offences.
The Regulations Governing the Administrative Police of 7 March
1875 (see above) articulated the said functions more briefly:146
i. to protect the people against disturbance,
ii. to care for health,
iii. to check dissipation and debauchery,
iv. to search secretly for persons who plan the infringement of national
law, and to prevent it.
Whenever the administrative police failed to prevent a crime, the search
for and arrest of the offender was to be the duty of the judicial police.
The penal authority of the police went by the Office Regulations
for the Police Bureau (keihoryò shokusei shòtei ) of 19 November 1872. The
regulations dealt with two parts of the administrative police’s juris-
diction: contraventions147 and prostitution.
144
R. Ishii/W. Chambliss (note 2) at 191/248.
145
Loc. cit. (note 144) at 193/250.
146
R. Ishii (note 2) at 194–195. ‘National law’ in no. iv could be understood to
be the law concerning political offences as in the above Service Regulations of 7
February 1874.
147
Ishiki. Literally: violation of a statutory instrument, an offence under the legal
system of past times. In the early Meiji era ishiki meant police offences, which from
1 January 1882 under the (old) Penal Code of 17 July 1880, were called ikeizai.
142 public law
The contraventions were major (ishiki ) or minor (kai"i ) ones; the

adjudication by the police was regulated under the Ordinance
Concerning Major and Minor Contraventions (Ishiki kai’i jòrei ), enforced
first in Tokyo (53 articles) and on 19 July 1873 in the whole of
Japan (Kaku chihò ishiki kai’i jòrei, 90 articles). Major contraventions
were counterfeiting, sale of putrid food and drink, sale of immoral
articles, exhibitionism, disturbance of traffic, etc. Minor contraventions
were driving a carriage furiously on narrow ways, parking a cart at
the roadside, relieving oneself on a road open to traffic, quarreling
in public, etc. The prefectures were authorized, depending on local
circumstances, to add further acts (actùs rei ) to the catalogue or leave
out or change items. This practice may reveal local social conditions.
Contraventions locally created were, for example, individual embroidery,
conducting a bath for both sexes, peeling off the skin of dead cattle
or horses and cutting up flesh in a street.
The sentencing officer in the case of a major contravention and
below was the chief of the metropolitan police or his substitute
(daikeishi, gondaikeishi ). The junior chief and his substitute could also
decide on a major contravention if there were no complications. A
sergeant could decide in the case of a minor contravention, however,
if the case was too difficult to decide it had to be referred to the
junior chief. Corresponding police officers in the prefectures had to
implement the said ordinance when it came into force outside Tokyo.148
The police could impose an exemplary, also called correctional, (non-
penal) fine of 75 to 150 sen in the case of a major contravention, and
6 sen 2 rin 5 mò to 12 sen 5 rin in the case of a minor contravention.149
148
Referring to the subject: K. Hosokawa (note 2) at 141. K. Nakamura, Keihò
Penal Law), in ‘Lectures’ (note 5, vol. 9, p. 58. R. Ishii/W. Chambliss (note 2) at
197/254 and 287/356. Y. Tetsuka, Kokkateki keibatsuken to hikokkateki keibatsuken—
Meiji zenki no baai ni kansuru ichi miteikò (The Penal Authority of the State and of
Others—A Rough Draft About the Situation in the Early Meiji Era), in Keibatsu to
kokka kenryoku (Punishment and the Authority of the State), edited by the Hòseishigakkai
(Society for Legal History), p. 186 (1960). T. Uno, Ishiki kai’i jòrei, in Nihonrekishi
daijiten (note 113), vol. 1, at 283.
149
One sen was 1/100 yen, one rin = 1/10 sen = 1/1.000 yen, one mò = 1/100 sen.
When regarded from the present cost of living these sums seem to be so low that
it is hardly possible to convert them into today’s currency. However, in the early
Meiji years the fine could noticeably affect the household budget of the culprit. The
price of rice varied irrespective of time or locality and was, as such, not a reliable
gauge for comparison. To better exemplify this: in 1872 the Home Ministry fixed
the government expense for food and drink of an adult convict at an annual figure
of 16 yen 79 sen = 4 sen 6 rin per day. Nihon kinsei gyòkeishi kò (Notes on the History
of the Enforcement of Penalties in Japan’s Modern Age), ed. by Zaidan hòjin keimu
kyòkai (Foundation ‘Society for Prison Affairs’), vol. 2, p. 988 (1943).
He who could not pay the fine for a major contravention was liable to
ten to twenty blows with the rod; if unable to pay the fine for a minor
contravention he might be placed in detention for one or two days.
Local regulations changed the substitute punishment into imprisonment
with hard labour as the police thought fit, Tokyo followed this course.
Prostitution150 was a perpetual matter of discussion in Japanese
social and legal history over many centuries.151 It had repeatedly been
dealt with in connection with the sale and purchase of persons ( jinshin
baibai ), a very old practice of slavery which repeatedly was forbidden
but never stopped.
Licenced and illicit prostitution in Edo/Tokyo and other cities
existed at the time of the Meiji restoration. Illicit prostitution occurred at
places outside definite localities and was a contravention prosecuted
by the police. Under the influence of progressive notions about human
rights the idea of banning the sale of persons began to ripen after the
restoration, and the Maria Luz incident152 induced the government to
enact, on 2 November 1872, order no. 295, under which the sale and
purchase of persons for ever or for a limited period was once more
generally forbidden.153 Simultaneously, the prostitutes were set free.154
On 9 November 1872 the Ministry of Justice issued a directive
150
There were diverse manifestations of prostitution and kinds of prostitutes.
151
The title of one of several books on the subject is Baishò sansennen shi (History
of Prostitution in Three Thousand Years), by T. Nakayama, 1927, revised by
M. Kyòguchi, 1956. In reality, the beginning of prostitution in Japan cannot be
dated. Its origin is traced back to the temple dancers. Early reference to prostitutes
appeared in the Manyòshù, a famous anthology of the 8th century AD. An image
of the prostitution in the Tokugawa era can be found in R. Ishii, Zoku Edo jidai
manpitsu (Miscellany on the Edo Period, Continued), chapters 15 and 16 (1961).—
A German essay on prostitution and antiprostitution in the Meiji era has been con-
tributed by M. Neuss in ‘Oriens Extremus’ 26, pp. 85–94 (1979). M. Takikawa
has written a short ‘Legal History of Prostitution’ (Baishun hòsei shòshi), p. 23–741,
in the collection of his essays from 1923 to 1939 ‘Nihon hòseishi kenkyù’ (Study of
Japanese Legal History), 1941.
152
‘Maria Luz’ was the name of a Peruvian sailing ship with 230 Chinese coolies
aboard which entered the harbour of Yokohama on 9 July 1872. Coolies who
escaped exhibited traces of cruel treatment. Japanese authorities detained the ship,
and diplomatic quarrels were finally settled by the Russian emperor as the arbi-
trator in favour of Japan.
153
Text in Nakayama/Kyòguchi’s book (note 151) at 645–646.
154
Art. 4: “Prostitutes, female entertainers ( geigi or geisha), and others who were
constrained to serve for a fixed term will be emancipated. Loan actions relating to
this will not be admitted.” This provision aimed at persons who, as often practised,
had been disposed of by their needy folk for a limited period in order to pay off
a debt or to secure a loan.
144 public law
concerning the said emancipation.155 The directive mainly regulated

the financial consequences of the emancipation.
Art. 267 of the Amended Criminal Regulations (Kaitei ritsurei ) of
13 June 1873 included a provision about illicit prostitution, but this
was cancelled when on 12 January 1876 control and punishment of
prostitution was delegated to the metropolitan police and the chiefs
of the local authorities. The Home Ministry decreed that the cor-
rectional fine must not exceed thirty ¥, and the upper limit of dis-
ciplinary punishment was to be six months.
The (old) Criminal Code of 17 July 1880, influenced by French law
and enforced from 1 January 1882, renamed the major and minor
contraventions ‘police offences’ (ikeizai ). This was a flexible term
allowing specification according to local convenience (to be reported
to the Home Ministry).156 The first Japanese law governing the
criminal procedure, the Code of Criminal Instruction (Chizaihò) of
17 July 1880, also in force from 1 January 1882, ordained that police
offences were to be adjudicated by the Peace Court (chian saibansho)
in its function as the court for police offences (ikeizai saibansho). The
punishment was no more than a detention or a fine. But it seemed
to be hardly feasible to apply the same procedure to police offences
as to felonies or minor crimes. For that reason the government, prior
to the enforcement of the Code of Criminal Instruction, enacted a
law ( fukoku) under which no remedy whatsoever was admissible
against the judgement in the case of a police offence, although the
court proceedings had to go by the rules of the Code (law no. 44 of
20 September 1881). At the same time it was decreed that sentencing
in such cases was, except temporarily for the three urban prefec-
tures (Tokyo, Kyoto, Osaka) and the five trading ports (Yokohama,
Kòbe, Nagasaki, Niigata, Hakodate), the duty of the police stations
of the prefectures and the branch stations (law no. 48); the said
exception was cancelled on 28 December 1881 (law no. 80).
These laws were repealed when, on 24 September 1885, the Sum-
mary Trial Regulations for Police Offences (ikeizai sokketsu rei ) were
enacted. Under this law the trial was conducted by the head official
of the police station or branch station or his substitute; the formal
court procedure need not be observed. The defendant was heard
and evidence considered. The decision was issued immediately. Appeal
155
156
to the court for police offences was admissible; this clause guaranteed
access to the judge in law under art. 24 of the Meiji constitution as
well as art. 32 of the constitution of 1947. The Summary Trial Regu-
lations of 1885 remained in force through many decades; they were
repealed by art. 1 of the Law for the Enforcement of the Court
Organization Law (Saibanshohò shikòhò) of 16 April 1947.
Book IV of the old Criminal Code which dealt with the police
offences did not reappear in the new Criminal Code (Keihò) of 24
April 1907.157 Offences which should be dealt with under the aspect
of criminal law were integrated into Book 2 (“punishments”) of the
Code.158 The other police offences, now called keisatsuhan, were enu-
merated in an ordinance of the Home Ministry of 29 September
1908 (keisatsuhan shobatsu rei ) and divided into three categories accord-
ing to the sanction:
(i) to be punished by detention = 4 items; among them “Anyone
who commits or procures or shelters illicit prostitution”,
(ii) to be punished by detention of less than 30 days or fine of less
than 20 ¥ = 37 items,
(iii) to be punished by a fine of less than 20 ¥ = 17 items.
This ordinance was repealed by the Minor Offence Law (Keihanzaihò)
of 2 May 1948. The new law does not contain any regulation for illicit
prostitution.159 The Law for the Prevention of Prostitution (Baishun
bòshi hò) of 24 May 1957160 formulates in a restrained proclamation
that it aims at controlling prostitution. The Law provides for punish-
ment of prostitution in public and of connected offences such as
recruiting clients; procuring—in knowledge of the circumstances—a
place for practising prostitution; tricking a person into prostitution
or forcing or threatening; and other deeds.161
157
This code was influenced by German rather than French law.
158
They were not enumerated in a special section but discernible by the threat
of punishment: detentions or minor correctional fines ranged from one day to 29
days, fines (karyò) from 10 sen to less than 20 ¥.
159
Prostitution practice as such was not punishable. To canvass, aiming at profit, an
unhabitual woman for prostitution was an offence, art. 182 of the Criminal Code.
160
The law was the final victory of movements for the ban on licenced prosti-
tution which had appeared sporadically since about 1600 AD and influenced regional
policies. K. Kanzaki, Haishò undò, (Movement for Abolishment of Public Prostitution),
in: Great Dictionary of Japanese History (note 113), vol. 15, pp. 69–70.
161
The said law deals also with health care.
146 public law
Anyhow, the pre-war general authority of the police to adjudicate

in cases of contraventions was discontinued. After 1945 there appeared a
correctional, non-penal fine162 in various laws which can be imposed by
administrative authorities. Non-penal punishments are sanctions (seisai )
against wrongdoers in order to uphold lawfulness,163 or to enforce
the fulfilment of a duty under administrative law,164 or as a disciplinary
measure.165 The authority to impose a sanction is frequently regulated
by the relevant law. If there are no special provisions about author-
ity and procedure arts. 206 et seqq. of the Law of Procedure in
Noncontentious Matters (Hishòjiken tetsuzuki hò) of 21 June 1898 are
applicable.
The natural prerequisite of the authority to impose sanctions is
the control of illicit and licensed prostitution,166 in this respect the
police act as a vice squad.
Restrictive legislation brought about special duties for the police.
Mention should be made of the prohibition of slave trade (1872); regu-
lations about books and newspapers, and the enforcement of censors’
decisions (Publication Law of 1893 and several preceding decrees
since 1868, Press Law of 1909 and preceding decrees); Libel Law of
1875—together with early newspaper press rules; Law for the Execution
of Administration (1900); and Peace Preservation Police Law (1900)
which replaced the Public Meeting and Political Party Law of 1890
and earlier regulations for public meetings and maintenance of peace,
and remained in force until 1945. This law167 and the notorious Law
for Maintenance of Public Peace (Chian iji hò ) of 1925 were the
means of oppression of actions seen to be politically dangerous by
the ruling circles.
The Police Law (Keisatsuhò) of 8 June 1954 was the final result of
the police system’s reform which had been initiated by the occupying
power after the end of the Pacific war (World War II). The objective
162
Karyò, vocally like karyò = penal fine (see note 158), but dissimilar in writing.
163
E.g. Commercial Code arts. 18 and 22: misleading firm name.
164
E.g. River Law art. 53: negligence of a private individual in carrying out
duties under the River Law or subsequent ordinances.
165
Against a judge: Law Concerning the Status of Judges, art. 2.
166
There were also regulations in the field of licensed prostitution which, if vio-
lated, incurred the risk of a sanction.
167
Under its art. 17 labour movements and peasants’ movements were forbid-
den. However, it was cancelled in 1926 when, in the Taishò era, the opposition
against that clause grew fierce and the Law for Maintenance of Public Peace took
care of the subject.
had been to decentralize and democratize the police force as well

as to cut back its authoritarian bearing which had exercised control
over the populace. In order to supervise the police work ‘Public
Safety Commissions’ (kòan i’inkai ) were installed at national and
regional/local level.168 When the occupying power no longer kept an
eye on Japanese legislation, the Japanese checked the laws of the
past years as to suitability for a system that would, in their view, be
suited to current requirements.
Art. 2 of the Police Law of 1954 describes the duties of the police
as follows: “to protect the life, health, and property of the individ-
ual; to prevent, suppress, and investigate crimes; to control the traffic;
and to attend to other matters concerning the maintenance of pub-
lic safety and order”. Additionally para 2 of art. 2 says that the
activity of the police must be strictly limited to the scope of the
aforesaid duties, and that it may not aim at the suspension of impar-
tiality and neutrality, nor ever misuse its authority by interfering with
the rights and freedom of the individual as guaranteed under the
Constitution of Japan. When, for the first time, a Law for Administra-
tive Procedure (Gyòsei tetsuzuki hò )169 was created, the activity of the
police also had to follow this law, except in cases where penal laws
stipulate police tasks.
The Law Governing the Execution of the Policemen’s Duties
(Keisatsukan shokumu shikkò hò ) of 12 July 1948 remains virtually
unchanged. It is the legal foundation of police authority.
c) The area of responsibility of the police was, as cited above, defined
by rather general terms like ‘to safeguard the property of the people
and their health’, or ‘to check dissipation and debauchery’, or ‘to
protect the lives of the people’, and, finally, ‘to attend to other matters
concerning the maintenance of public safety and order’. The par-
ticulars are regulated by specified orders, instructions, directions, and
similar rules.
Such rules were abundant in the Tokugawa era (1603–1867). Keigo
Kiyoura, director of the Police Bureau of the Home Ministry from
1884 to 1891, undertook the taxing work of systemizing those rules.
His record was not printed, and the manuscript was destroyed by fire
during the earthquake of 1923. Other materials enabled the Ministry
168
For the development of the legislation after 1945 see P. Schneider (note 119),
at 42 et seqq.
169
Enacted in 1993, enforced from 1 October 1994.
148 public law
to compile the ‘History of the Police in the Tokugawa Era’ and to

publish it in 1927.170 Although the terminology has been brought into
line with modern usage and some phenomena have fallen into obliv-
ion, the arrangement of the scattered items presents an overall view
of police business up to the end of the pre-Meiji period. With the
exception of local conditions in the domains, the state of things in
1867 continued after the restoration, and the details can be ordered
under the general terms used in later definitions of police duties.
The thirty sections of this ‘History’ deal with fire; antique dealers,
pawnshops, stolen goods, lost articles, treasure trove; gambling;
inquests, runaways, inns, travellers, domestics, hostages, homeless
samurai (also vagrants), persons long separated from house and folks;
manners; religious attitude; festivals; publications; unnatural death,
diseases, wounds, deformities, abandoned children; beggars, outcasts,
pariahs, homeless persons; forests; provisions for emergencies; guns;
expenses, interposing in matters of taxes and tributes (after fire or
water damage); oxen- or horse-drawn vehicles, loads, handcarts; boun-
ties; buildings; bird-catching, fishing, trade in animals and birds;
fields; health; weights and measures; clothes; highways; water police;
judicial police; matters of state and public peace; foreign relations;
basic laws and institutions.171
Many items on the list are not orders for the police but general
rules or regulations for the people, the obedience of which was con-
trolled and enforced by the police. The business of the administrative
police could, under modern terms, be divided into special branches:
traffic police, health police, river/harbour police, vice squad, building
control department, and so on. Such naming of divisions according
to their functions or duties was, apart from the roughly separated
administrative and judicial police, special and special higher police,172
not in general use.
The new legal system after 1945 introduced more detailed subdi-
170
Tokugawa jidai keisatsu enkakushi, 2 volumes of 1020 and 874 pages.
171
The headings of the sections do not always indicate in detail all the subjects
of the relevant sections. E.g. the three parts of the section ‘manners’ are a treasury
of social habits and occurrences.
172
See note 138. Also the peace police under the Peace Police Law (Chian keisatsu
hò) of 1900, a law for the control of public meetings, (secret) associations, and mass
movements, belongs here. Several enactments had preceded this law. It was a
significant piece of police legislation which, on the whole and mainly during the
three decades prior to the end of World War II, escalated into the establishment of
the ‘police state’. The law was repealed in 1945. S. Wagatsuma (note 90) at 648.
visions of the police. Traffic police,173 constabulary,174 and public

peace police175 appeared, for example. Scientists combined specific
features of the police business in ‘vice squad’ ( fùzoku keisatsu), ‘trade
police’ (eigyò keisatsu), ‘health police’ (eisei keisatsu). In the wording of
the laws we often find the term ‘the competent (or responsible) officer’
(tògaikan) which, in many cases, means the policeman, especially when
the law deals with ‘control’ (torishimari ). The term was already used
in the Meiji period, as in the Law for the Execution of Administration
(Gyòsei shikkò hò ) of 2 June 1900 by which the authority of the police
as a proxy of an administrative office was defined in detail relating
to detention (protective arrest of drunkards, lunatics, and persons
attempting suicide; preventive arrest of persons who might endan-
ger the public peace by acts of violence), provisional custody (retain-
ing for safe keeping any weapons and arms belonging to drunkards,
lunatics, persons planning suicide, and the like), to the banning of
raids on private residences between sunset and sunrise, compulsory
health examination and detention of illicit prostitutes, the use of land
and goods for sanitation purposes, and the prevention of injury in
the wake of natural calamities.176 The rather wide range of police
operations made misuse possible and did not sufficiently secure human
rights. Therefore, that law was repealed by the Law for Administrative
Execution by Proxy (Gyòsei daishikkò hò ) of 15 May 1948. On 12 July
1948 the Law for the Performance of the Duties of the Police Officers
(Keisatsukan shokumu shikkò hò )177 was enacted. This law regulates the
173
Kòtsù keisatsu, Police Law art. 23–2.
174
Keibi keisatsu, Police Law art. 24.
175
Hoan keisatsu, Police Law art. 23 para. 1 no. 5. This section is not simply a
successor of the peace police (see note 172). The hoan keisatsu is responsible for con-
trol of all matters regarding speech, meetings, societies, elections, as well as for
police duties concerning individuals (e.g. mentally ill persons), things (e.g. danger-
ous cargo), and activities endangering the public peace. Police work must strictly
observe the rights of the people guaranteed by the Constitution.
176
177
The original title of the Law was “. . . . of the Police Officers and Others”
(Keisatsukan tò. . . .), ‘others’ indicating that there were two kinds of police officers:
keisatsukan = officer of the state-run regional police (kokka chihô keisatsu, and keisatsu’in
= officer of the police force run by the local self-government unit ( jichitai keisatsu),
a system introduced at the instigation of the occupying forces in order to decen-
tralize the police. The state-run regional police operated in areas where a small
self-government unit, following an inhabitants’ vote, did not keep a local police.
See S. Wagatsuma (note 90) under the relevant headings as named in the text
above, p. 162, 327, 403. The cancellation of the ‘others’ (-tò ) by an amendment of
1954 was the consequence of the re-establishment of the state-run central police in
the early fifties after the end of the occupation. M. Scheer, Verwaltungsrecht
150 public law
methods of police actions: questioning, protection, precaution, pre-

vention and control of crimes, access, use of weapons, and calls par-
ticular attention to the execution of duties imposed by the Code of
Criminal Procedure, and other laws and regulations.178 It constitutes
the legal base of the policemen’s authority.
3. ‘Providing’ administration includes those activities of public
authorities which, in principle without using force or means of coer-
cion, supports the nation’s common welfare in various areas of life.
While in the pre-Meiji period the promotion of culture,179 learning,
economy etc. was in the hands of the daimyò and their clans, the
new central government took over—at least parts of—the responsibility
for the progress, especially since it became the national political aim
to catch up with the lifestyle in western countries.180
The Constitution of 1889 did not deal with subsidies for cultural
purposes. It was a matter of course that shrines and temples gained
state protection, and Shintò and Buddhist priests were honored by
the state. Financial contributions by the state to charitable and edu-
cational undertakings were not prohibited, and at a much later date
social undertakings could be supported by public means under the
Social Undertakings Law (Shakai jigyò hò ) of 1938. This law was
repealed by the additional clause no. 2 to the Social Welfare Service
Law (Shakai fukushi jigyò hò ) of 29 March 1951 which regulated the
organization of the social welfare service, its duties, the control, and
financing (among other means: subsidy or loans from public funds).
Education and science always enjoyed attention and support from
central and regional governments apart from religious institutions.
Schools and academies established by the Shogunate,181 by the daimyò
(Administrative Law), in P. Eubel et al., Das japanische Rechtssystem (The Japanese

Legal System), pp. 88–89 (1979).
178
A helpful summary of laws for police organization and police work in the
first decade after 1945 was presented in the periodical Jurisuto ( Jurist) no. 100 (1956)
by J. Tagami, Keisatsu soshiki (Police Organization), pp. 48–50, and Keisatsu tori-shimari
hòki (Laws and Regulations for Police Control), pp. 51–53.
179
Japanese bunka means ‘culture’ and ‘civilization’. To make a distinction between
these two terms is a peculiarity of German philosophy of culture.
180
This aim cannot easily be achieved if we understand ‘culture’ to be the evolved
customs and attainments of a particular ethnic group. The government of a nation,
being conscious of tradition, is inclined to think its duty is to preserve relicts of the
past. In all ages the Japanese central and regional rulers as well as the temples
regarded this as a matter of concern. An early representative was the storehouse
Shòsòin of the temple Tòdaiji in Nara, founded in 756 by the empress dowager
Kòmyò and, in the course of centuries, filled with many treasures.
181
The first one was the Shòheizaka gakumonjo (abbr. Shòheikò) in 1630 in Edo.
in their respective territory,182 private schools,183 citizen’s schools,184

village schools,185 and temple schools186 existed in 1868.187 Besides,
religious organizations maintained educational institutions. Whenever
schools were founded and kept by the bakufu, or a feudal lord, or
financed from public funds, the administration was engaged.
After the Meiji restoration the feudal system was superseded by a
modern capitalistic system improved by a progressive policy. A new
organization of education was created. The Meiji government took
over the Shòheikò,188 renamed it Shòheigakkò, then Daigaku (college), and
closed it in 1871. One year later, under a law called Gakusei (System
of Education, much influenced by the French system), the educational
scene was divided into school districts: eight, then seven college dis-
tricts, 256 middle school districts, and 53.760 elementary school dis-
tricts. The plan was to set up one school of each respective type in
every district. Special schools followed: e.g. girls’ schools, teacher
training colleges, schools for foreign languages, infants’ schools, blind
and dumb schools, higher middle schools (later: higher schools), schools
for military education. All these were state run schools, just as the
national universities which were established from 1877 on. They were
part of the administration of the central state, or of the regional or
urban authorities depending on the founder or supporter.189 The
Schools under the control of the bakufu followed in directly administrated provinces.
Afterwards, special schools were founded: Wagaku kòdansho in 1793 (fields: national
history, law, compilation of historical material), Igakukan in 1857 (western medicine),
military schools in the fifties and sixties shortly before the Meiji restoration.
182
Hankò or hangaku meant, in the broader sense, all schools managed by the
domain authorities; in the narrow sense mainly schools which taught Chinese char-
acters and let the students have cultural refinement. The principle of these schools
was to admit the followers of the clan samurai, these schools are usually alluded to
when the term hangaku appears. Their number had increased to 255.
183
Founded and run by scholars.
184
Founded and run by citizens: Kaitokudò in Osaka.
185
Gògaku = schools which were established by a daimyò or interested persons of
the locality in order to educate common people as well as samurai, something in
between the hankò and the terakoya. The subjects of teaching were, as a rule, read-
ing, writing, sums, in lower, middle, and upper courses. The number of these schools
amounted to about 500.
186
Terakoya = literally temple or monastic school; the name brings its origin to
mind. In the Edo period the terakoya were the elementary schools for the common
people and are the forerunners of the primary schools of today. In many cases the
terakoya, were protected and supported by the bakufu or the domain governments.
187
For details of the pre-modern school system see encyclopedias and dictionar-
ies under the respective terms given above.
188
See note 181.
189
Prior to the Meiji period there was no compulsory school attendance for all
152 public law
responsibility for the administration of public schools continued

unchanged; after World War II the School Education Law (Gakkò
kyòiku hò ) of 31 March 1947 split up the schools into national (koku-
ritsu), communal (kòritsu) and private (shiritsu) schools (art. 2), and
imposed the expenses on the respective operator.190
The affairs of the providing administration go far beyond the edu-
cational sphere. Other cultural matters, public health, economy are
further fields in which the administration supports enterprises for the
public benefit.
Attention should be paid to the relation of the administration to
religion. In past times religious institutions enjoyed the support of
the state. The state subsidized Shintoist shrines and Buddhist temples
according to their rank or importance, and the Tokugawa rulers raised
the Confucian thinking to the ideological basis of the view of life and
to the fundamentals of the state. By the 16th century Buddhism had
gained the upper hand over Shintoism and Confucianism, but in the
Edo period a return to original Japanese values and an intellectual
movement to turn to old notions and observances developed. Thereby
the Shintoism, without encroaching upon Confucian teachings, became
the dominant religious course and, beyond religion, a political factor
promoting the Japanese nationalism which reached its totalitarian
height in the first decades of the 20th century. The old idea ‘saisei
itchi’ (identity of Shinto cult and government) was revived, and the
imperial administration endeavoured to translate it into reality. In
the first ruling body, the Three Offices, the Shinto Section ( jingi
jimuka) was at the top. The ‘section’ was renamed ‘secretariat’ (kyoku),
then ‘office’ (kan) and ‘ministry’ (shò ). When on 11 June 1868 the first
dajòkan system was established the Executive Office ( gyòseikan) moved
up to first place, but from August 1869 the Shinto Office was posi-
children. The ‘System of Education’ of 5 September 1872 (see above) said: with-
out distinction between samurai, farmers, craftsmen, tradesmen, and women “in a
community there shall not be any (extended) family lacking education, and the fam-
ily should see to it that none of its members will be devoid of education”. In addi-
tion, the law announced that children, without distinction between boys and girls,
should be urged to attend the elementary school, and absence would be regarded
as a fault of the father and elder brother.
190
Under the Private School Law (Shiritsu gakkò hò) of 15 December 1949 the
operator of a private school must be an artificial (ficticious, juristic, or legal, juridical)
person ( gakkò hòjin), and a nonprofit foundation. The state and the regional public
entity can grant financial assistance (art. 59). The authorities have the right of con-
trol to a certain extent.
tioned over the dajòkan. On 21 April 1872 the Ministry of Religion

(kyòbushò ) was set up within the third type of the dajòkan, it was
responsible for the administration of Shinto191 and Buddhist affairs.
That ministry was closed in January 1877, and its duties were trans-
ferred to the Home Ministry (naimushò ), Shrines and Temples
Secretariat (shajikyoku). Soon afterwards the government made a dis-
tinction in Shinto (= ‘way of the gods’) between ‘Shrine Shinto’ ( jinja
shintò) and ‘Sect Shinto’ (kyòka shintò ). Shrine Shinto lost its religious
character and became the stronghold of nationalism: worship of the
ancestral gods, consequently of the heavenly ancestors of the Tenno
and his divinity, and with it the expression of loyalty to him, his
reign, the dynasty, the state, and the national polity (kokutai ). Among
the numerous shrines those of imperial and state (official) affiliation
were supported and controlled by the administration. The sect shrines
belonged to the Shinto sects and did not receive any benefits from the
state. The Buddhist institutions were also excluded from official sup-
port, and in 1900 the Shrines and Temples Secretariat became the
‘Shrine Secretariat’ ( jinjakyoku). The identity of Shinto cult and govern-
ment had been reduced to the Shrine Shinto. The separation of
Shrine Shinto from religious belief must be taken into consideration
when reading art. 28 of the Meiji Constitution.192 After Shrine Shinto
had lost its religious nature it was regarded as a nationalistic duty
to adhere to the official cult. In this respect there was no room for
religious freedom. A manifestation of that development was the found-
ing of the Religion Secretariat (shùkyòkyoku) in addition to the Shrine
Secretariat. The Religion Secretariat dealt with the affairs of the true
religious groups, organizations, and institutions. Later on, this secre-
tariat was taken over by the Education Ministry (Monbushò ) and was
renamed Religious Affairs Secretariat (shùmukyoku, from 1913 shùkyòkyoku),
which also controlled the once outlawed Christians.
Through the decades many regulations concerning religious insti-
tutions and activities were issued. No sooner than in 1939 a uniform
basic code, the Religious Organization Law (Shùkyò dantai hò), was
enacted. It defined the legal position of religious groups (naturally,
191
The ceremonies were the business of an office in the imperial court. The min-
istry dealt with the sects, shrines, priests, and their concerns. The Buddhist affairs
were added because the people preferred to find their private spiritual salvation or
welfare in Buddhism and became restless owing to the official preference of Shinto.
192
See p. 65.
154 public law
other than that of Shrine Shinto), their status as artificial persons, and
their protection and supervision. In art. 10 of the Potsdam Declaration
of 26 July 1945, accepted by Japan on 14 August 1945, the victorious
powers demanded freedom of creed and thought. Consequently, state
and religion were separated. As a matter of course, Shrine Shinto
was included, although it was neither creed nor thought in the original
meaning, but rather a nationalistic behaviour imposed on the people.
Soon after the end of World War II the Religious Organization Law
was replaced by an imperial order about religious groups as artificial
persons. Religious institutions had previously been artificial persons
(see above), and as such they should have come under the rules of
the Civil Code for artificial persons (hòjin, Civil Code arts. 33 to 84),
but art. 28 of the Civil Code Enforcement Law (Minpò shikkò hò ) made
them exempt from the applicability of the Civil Code. This article
was then repealed, and the religious artificial persons were treated
like the other ones. The Constitution of 1947 strengthened the sep-
aration of religion from the state (arts. 20 and 89).193
The legal status of the shrines belonging to Shrine Shinto had not
been clearly defined. On the one hand they were classed as artificial
persons—otherwise it would have been meaningless to exempt them
from the provisions of the Civil Code (see above), on the other hand,
just for that reason, they and the other institutions named in art. 28
of the Civil Code Enforcement Law were not artificial persons. The
jurists classified those shrines as foundational juridical (or artificial)
persons under public law (kòhòjò no eizòbutsuhòjin; German: Anstalt des
öffentlichen Rechts).194
On 3 April 1950 the Artificial Religious Persons Law (Shùkyò hòjin
hò ) was enacted. Its purpose is to bestow legal capacity on religious
organizations in order that they may conduce to owning institutions
for worship and other property, maintaining and using them, moreover,
conducting business and operations so that the aforesaid purposes
may be attained (art. 1). The Law deals with the creation of an
artificial person, its regulations, management of its affairs, amalgamation,
liquidation, and registration. A religious organization is not automatically
an artificial person; approval of the regulations by the responsible
193
The ban on expending public money for religious organizations has been
repeated in art. 230 of the Local Autonomy Law (Chihò jichi hò) of 17 April 1947.
194
S. Wagatsuma (note 90) at 446 under ‘Shùkyò hòjin’.
authority and registration are required. No provision of the Law may

be interpreted or applied if the freedom of religion guaranteed by
the Constitution would be infringed thereby.195
I. Civil servants are the persons who perform the civil administration.
The new Meiji government was confronted with the age-old system
of public service which had been made indistinct by the fact that the
bakufu and the feudal domains had service structures of their own. The
new government kept to the Tenno-centred system and endeavoured
to modernize it. Under the old system196 the status of a civil servant
(kanri ) was, in principle, related to a court rank. This relation was
regulated by a chart ‘kan’i sòtò ’ (correlation of office and court rank).197
The chart listed eight court ranks, each of them subdivided into pri-
mary and secondary rank, most of which were further subdivided into
upper and lower grades. Additionally, in some offices there were two
‘entrance classes’ = four grades for the lowest officials. The corre-
sponding officials of the various offices were appended. Since this
system had been created in the ancient period of direct imperial
reign its importance was reduced when the military class gained con-
trol and founded their own government (bakufu) at the end of the 12th
century, and the feudal domains developed their semi-independence.
The Meiji government took up the ancient imperial authority, and
also, for the time being, the chart on the correlation of office and
court rank which was reintroduced in August 1869 in connection
with the Government Officials Order (Shokuinrei ) which reorganized
the government system and established type II of the dajòkan, (see
195
There is much literature about religion in the modern age, and the shrine shinto,
though no longer existent, has repeatedly been a subject of political discussion (cue:
Yasukuni shrine).—General depiction of the history of religion in Japan (creed and
official supervision): W. Gundert, Japanische Religionsgeschichte (History of Japanese
Religion), 1935/1943.—H. Takaki, Shùkyòhò (Law of Religion), covering the period
from 1868 to 1939, in: History of the Development of Japanese Modern Law (note
48), vol. 7, 1959, pp. 1–36.—See also dictionaries of history and law.
196
Short explanation in R. Ishii (ed.), Nihon hòseishi ( Japanese Legal History), pp.
151–153 (1959). M. Scheer, Grundzüge des Rechts des öffentlichen Dienstes in
Japan (Basic Law of Civil Service in Japan), pp. 29–39 (1977); the main part of
this book attends to present law and is a most comprehensive description.
197
Requisite for Reading History (note 88) at 536.
156 public law
chapter ‘Notes on the Staff of the Ministry of Justice’). The Shokuinrei

was modelled on the Shokuinryò, the collective name of several regulations
governing the organization of the public service, proclaimed in the 8th
century.198 But the new chart was repealed on 24 September 1871 and
succeeded by a chart of fifteen classes or ranks (tò )199 which tabulated
the officials of each government department200 according to their
class. Not all offices were staffed in every class.201 The officials classified
in this way were kanri = a term for persons who were appointed by
the emperor or a functionary legally empowered to appoint and pro-
mote. Besides these, there were employees under contract. The
classification of the officials regulated their appointment: those of
classes 1 to 3 were appointed by the Tenno at his own will (chokuninkan);
those of classes 4 to 7 by the Tenno granting an application of a
minister, a governor, and, from 1886, of the cabinet (sòninkan); those
of the classes 8 to 15 by the minister or chief of another high unit
of administration (hanninkan). The appointment by a balloting pro-
cedure as provided for in the Document of the Governmental System
(Seitaisho)202 had been executed only once in 1869 and limited to the
highest officials of the government; the voters were of the third and
higher court ranks.203 Because of practical difficulties, and the con-
sideration that the officials should be appointed by the emperor or
in his name, the balloting system was abolished in July 1869.
While in the early Meiji era the pedigree of a man, his affiliation to
one of the anti-Tokugawa clans (mainly Satsuma, Chòshù, Tosa, Hizen),
and meditorious contribution to the re-establishment of the Tenno’s
authority played a part in appointing a person to a public office, the
198
K. Maki, Nihon hòseishi ron, chòteihò jidai jòkan (Study of Japanese Legal History,
Era of Imperial Court Law, First volume), at 269 (1921).
199
Requisite for Reading History (note 88) at 544 et seqq.
200
Including the military and the prefectures.
201
E.g. Home Ministry: 1st class = minister
2nd class = senior vice minister
3rd class = junior vice minister
4th class = senior secretary
5th class = junior secretary
6th class = no corresponding post
7th class = no corresponding post
8th class = senior administrator
9th class = assistant to senior administrator
10th–13th class = middle and junior administrators and
their assistants
14th–15th class = no corresponding posts.
202
See supra note 19 and section II of the chapter ‘Constitutional Law’.
203
ability of a candidate, acquired by studying at a university or by

passing a newly created state examination, became more and more
necessary. This development went along with the practice of also
admitting commoners to official positions. In the first Meiji years
incumbent officials and their descendants were treated like members
of the samurai class who were favoured under the early penal laws.204
No sooner had the cabinet system been established in 1885, than
the ordinance on Regulations Concerning Examination, Probation,
and Training of Civil Officials (Bunkan205 shiken shiho oyobi minarai kisoku)
of 25 July 1887 was enacted. The sònin officials had to pass the
higher civil service examination (kòtò shiken) and then complete a
period as trainees (shiho).
The hannin officials had to take the ordinary service examination
( futsù shiken); their subsequent training was called minarai (learning
by observation). Persons who had visited a government school had
the privilege of appointment without such examination. Therefore,
in every ministry the group of sònin officials was occupied by men
who had been educated at a government school. While heretofore the
clan faction was most influential, now the “evil” of academic cliquism
came into effect.206 In order to counteract that development the gov-
ernment annulled the privilege and, in October 1893, enacted the
Civil Service Appointment Ordinance (Bunkan nin’yò rei ) under which
the appointment required the passing of the examination—officials
who were appointed by the Tenno directly (chokuninkan) were the only
possible exemptions. But at the end of the 19th century the influence
of political parties grew stronger;207 this had an effect on the selection
of chokuninkan since, as a matter of course, the government had to give
advice to the Tenno. The result was that members of the Progressive
Party, founded on 1 March 1896, the leader of which, S. Òkuma,
was foreign minister in the second Matsukata cabinet (September
1896–January 1898), occupied many posts of the chokunin group: vice
204
205
Bunkan was the general denomination for any official of sònin or hannin rank.
206
R. Ishii (note 196) at 152.
207
S. Òkuma formed the first party cabinet on 30 June 1898. He had merged
the Progressive Party with T. Itagaki’s Liberal Party into the Constitutional Party.
In that short-lived cabinet Itagaki was the Home Minister. The cabinet was called
Waihan-cabinet (waihan = Chinese reading of parts of the ministers’ names: wai =
kuma, han = ita). It should be noted that those top politicians came from two of the
four clans which were the most powerful supporters of the restoration and, subse-
quently, the dominant political coterie for many years.
158 public law
ministers, chiefs of secretariats (kyoku), and governors of a prefecture.

This situation did not correspond to the spirit of art. XIX of the
Constitution. A. Yamagata who, on 8 November 1898, succeeded
Òkuma as prime minister, determined to protect the bureaucratic
citadel from party influence and issued an imperial ordinance in
March 1899 in order to block the post-hunting of fellow party mem-
bers. By this ordinance the Civil Service Appointment Ordinance
was largely amended; the chokunin officials were henceforth required, as
a general rule, to meet one of the following requirements: (1) to be
or have been a higher official of the third class and being or having
been in an office with sònin rank, (2) to have served at least one year
as a chokunin official, (3) to have served as a chokunin official and to
possess a higher examination certificate, (4) to be or have been as a
chokunin appointee in the office of public prosecutor for two years. This
did not apply to officials who were to be appointed in a special cer-
emony by the emperor in person (shinninkan),208 nor to special
appointees.209
The Civil Service Appointment Ordinance was amended several
times and, on 1 August 1913, issued in a new version, which again
was repeatedly amended and finally repealed after the end of World
War II.
Under the Meiji Constitution the officials (kanri ) were regarded as
‘officials of the emperor’ (tennò no kanri ), a term that was, combined
with the notion of social status and officialdom, the foundation of the
administration in opposition to the diet and the people. The system
was not democratic, and, from a legal point of view, it worked as
a varied and complicated entity lacking a fundamental law. All in
all, it was not able to meet the demands of modern administration.
Therefore, it also came under the reform of the constitutional struc-
ture after 1945.210
As early as on 3 November 1945 the cabinet (Prime Minister K.
Shidehara) passed a draft concerning the reform of the civil service.
Significant points therein were briefly:
208
E.g. the prime minister, state ministers, president of the Supreme Court,
ambassador plenipotentiary.
209
E.g. hanninkan of many years’ standing who had not passed the higher civil
service examination. Under this exception persons whose fate was directly linked
with that of the cabinet could be appointed officials.
210
For the first steps see T. Satò, Kuni no kòmuin seido (System of the Civil Servants
of the State), in Jurisuto ( Jurist) no. 100 (1956) pp. 28–32.
– Unification of civil servants’ denomination, viz. three groups: admin-

istrative, educating, technical officials.
– Separation of official and post. Formerly, the denomination of an
official included his actual post.
– Abolishment of the division into chokuninkan, sòninkan, and hanninkan;
instead: 1st, 2nd, and 3rd class.
– Unification of the salary regulations.
– Restraint of change of post: generally after two years at the earliest.
– Expansion of appointment by selection.
– Reform of exam regulations.
– Expansion of training.
– Strict enforcement of the system of ‘sure penalty and certain reward’.
Observation, service record.
The immediate result of these suggestions were two ordinances:
Ordinance Concerning Appointment and Classification of Officials
(Kanri nin’yò jokyù rei ) and Ordinance Concerning Salary of Officials
(Kanri hòkyù rei ), enforced from 1 April 1946.
This mini-reform did not come up with the expectations of an
innovation. On request of the government an American advisory team
investigated the Japanese civil service system, regarded it to be in
need of urgent reform, and proposed to set up a powerful central
personnel organ as well as to enact a basic law for the national civil
service aiming at a democratic merit-system and promotion according
to efficiency. The team presented the draft of such a law, the cabinet
altered several clauses, and the diet passed—with slight modifications—
the National Public Service Law (Kokka kòmuin hò ) of 21 October
1947, enforced from 1 July 1948.211 This piece of legislation, influenced
by American views, is just a basic law, the gist of which is the intro-
duction of a regulated personnel management with the focus on posi-
tion classification, under which the former system was completely
changed; moreover, the establishment—within the competence of the
cabinet—of the National Personnel Authority ( jinji’in) responsible for
the implementation of the Law, vested with far-reaching power and
committed to reporting to the prime minister. As it is a basic law
211
The term kòmuin (person belonging to the public service) includes the hired
personnel.—Several groups of officials, e.g. ministers, judges, public prosecutors, top
diplomats, diet officials, are generally exempt from the application of this law (art.
2 para 3 and 5); special laws regulate their position.
160 public law
details have been regulated in many subsequent laws and mainly

ordinances issued by the National Personnel Authority.
All public servants are no longer ‘officials of the emperor’ but of
the whole community, art. 15 para 2 of the Constitution of 1947.
The public servants of the local public entities are subject to the
Local Public Service Law (Chihò kòmuin hò) of 13 December 1951.
II. In the preceding feudal era the essence of being a civil servant
went with the nature of vassalage: loyalty, faithfulness, obedience.
The functionary was an official of the bakufu, or his feudal lord, or
superior in office. The scale of the administrative offices extended
under the Meiji government, and the number of officials increased.
Working rules to be understood by officials became a matter of
course. In April 1873 the government decreed:
Officials may not at will give information to a newspaper on matters
which, even if small ones, could obstruct the business of the office or
disturb the friendly intercourse with foreign nations.
Two years later, the decree was widened to all state affairs and to
other press organs—except public notices in the official gazette. In
April 1876 the government prohibited trading by the official and his
family registered with him.
Those decrees212 were single prohibitions concerning the conduct
of officials. On 27 July 1882 the government decided on Administration
Officials’ Service Rules (Gyòsei kanri fukumu kiritsu) which were sent to
all courts of law, central and local offices. This notification began
as follows:
These are rules outside the penal laws; they show the manner of being
serious about discipline and self-restraint. Administration officials as
organs of the government are the origin of guiding the people, and
appropriately special rules are given the spirit of which shall be main-
tained and the duties strictly clarified.
The twelve articles of the rules dealt with obedience to the laws and
service regulations of the respective department, obedience to the orders
of the prime minister or the chief of the department, strict adherence
to the duties with regard to integrity, a ban on other paid activities,
and a ban on receiving gifts from other persons. The rules also applied
212
K. Hosokawa (note 2) at 64–65.
to the judicial officials, however, there were two exceptions: the judge
was exempt from the provision that required the civil servant to fol-
low the orders of his competent superior when discharging his duties,
and both the judge and the public prosecutor were absolutely barred
from accepting any gifts in connection with their work.213
On 30 July 1882 these rules were reformed. An imperial ordinance
called Officials’ Service Rules (Kanri fukumu kiritsu) was issued. Under
this ordinance the official
– had, principally, to work loyally for the emperor and his govern-
ment, and so obeying the laws and ordinances, exert himself in
discharging his duties,
– had to obey the orders of his superior concerning his service, but
was permitted to utter his opinion on it,
– must, on official business and privately, value his integrity with
esteem and abstain from indecorous conduct,
– was forbidden to misuse his authority on official business and pri-
vately, and must perform his duty sincerely and in an appropriate
fashion,
– was forbidden to disclose official secrets concerning his own work
or that of another officer of which he had been informed; this
applied also to retired persons,
– as a witness or expert in court, had to obtain permission from the
chief of his office in order to make a statement about an official
secret,
– was forbidden to disclose privately a yet to be engrossed document
to a person concerned,
– may, unless permitted by the chief of his office, not leave his duties
nor give up his official residence at will,
– may, unless permitted by the chief of his office, not become the
president or director of a business firm.
Additional clauses dealt with corruption in several detailed manifes-
tations, decorations, commerce, trade (also by family members).
These Officials’ Service Rules were applicable to all persons who,
being salaried, worked in the public service (art. 17).
Service Rules of this kind became part of the postwar National
Public Service Law (arts. 96–106) and—correspondingly—of the Local
213
R. Ishii/W. Chambliss (note 2) at 368–369, 441.
162 public law
Public Service Law (Chihò kòmuin hò) of 13 December 1950 (arts.

30–38). New items of the rules were political activities, unions and
organizations. The civil servant must swear an oath to obey the rules.
Similarly, the officials of the regional/local self-governing bodies214
were also subject to rules of conduct.
Breach of duty was punishable under penal law215 or disciplinary
law. By a government decree of 14 April 1876 certain offences by
officials were removed from the sphere of criminal culpability; in
place of that jurisdiction the chief of the office was empowered to
impose disciplinary measures: reprimand, docking, and dismissal.216
On 28 March 1899 an imperial ‘Ordinance About the Status of
Civil Servants’ (Bunkan bungen rei ) was enacted. It regulated the dis-
missal of an ordinary official, i.e. except shinninkan (see supra note
208), diplomats, private secretaries, and officials whose status was
regulated by special laws. An official could only be dismissed if he
had, to that effect, been sentenced under penal law, or disciplined,
or if one of the following facts were true:
214
These were the ordinary officials (kanri ) and special officials entrusted with
particular duties or technical work (ri’in).
215
Penal Code of 1907, Official Corruption (misuse of power, taking bribes), arts.
193 et seqq. The early penal laws of the Meiji period (Provisional Penal Code of
1868, Outlines of the New Criminal Law of 1870, Amended Criminal Regulations
of 1873) contained provisions for officials under various aspects, the outstanding
offence being venality. R. Ishii/W. Chambliss (note 2), at 270–284/335–353 pas-
sim. K. Hosokawa (note 2), at 237 et seqq. passim.
216
R. Ishii/W. Chambliss (note 2), at 179/233–234.—Before the Meiji period
‘house arrest’ (kinshin) was a punishment for samurai and persons of a higher class
who had offended their lord. Originally, the term meant ‘repentance, self-reproach,
pondering on good behaviour’, the proper atmosphere to reflect on manners was
seclusion at home. In the Meiji period this practice survived as a kind of substitute
punishment. The Outlines of the New Criminal Law intended house arrest for (ex-)
samurai if the law threatened the offender with whipping. The Amended Criminal
Regulations abolished the term ‘house arrest’ and integrated it into ‘imprisonment’,
but it appeared again in the Ordinance on Disciplinary Punishment of Noblemen (kazoku
chòkai rei ) of 1876.—Also officials having neglected their duty could be punished by
house arrest. In practice the official submitted a written self-incrimination to his
superior and imposed house arrest on himself until the superior decided about the
affair: shintai ukagai = literally: question whether he could pursue his career or should
retire from office. That practice was still alive in the 20th century. An early exam-
ple after the Meiji restoration has been reported by M. Watabe: in 1869 Shigenobu
Òkuma, a then top ministry official (prime minister in 1898 and 1914–1916) was
not able to attend the birthday ceremony of the emperor because of illness. He
confessed to have “forgotten” to appear and submitted a shintai ukagai. M. Watabe,
Genkò hòritsugo no shiteki kòsatsu (Historical Reflection on the Present Legal Terms),
kinshin pp. 119–120 and 137–138, shintai ukagai pp. 61–62 (1930).
– inability to perform his duties because of deformity, or chronic

disease, or corporal or mental debility,
– at his request grounded on inability to perform his duties because
of a wound or sickness, or at his own convenience,
– the existence of supernumeraries because of a change in the office’s
organization or the fixed number of officials.
In the case of the first of the three facts disciplinary committees had
to be involved, one in the case of a higher official, another in the
case of other officials.
Under certain circumstances an official could be suspended, e.g.
when he was indicted for a criminal offence.
Maintenance in return for faithful service was the standard practice
in the feudal system since the Middle Ages.217 Salary and pension
were granted in the form of land tenure or rice. Under the new
government the public servants were paid in cash. The public servants
were divided into civil servants, military servants, educational personnel,
police and prison personnel, moreover, persons who were treated on
the same footing as officials. Correspondingly, there were separate
pension systems. The first ones were established in April 1875: General
Rules for the Support of Wounded Army Officials (Rikugun bukan shòi
fujo gaisoku),218 and Ordinance for Retirement of Navy Officials (Kaigun
tai’in rei ). In October 1876 the General Rules were followed by an
Ordinance for the Pension for Army Officers (Rikugun onkyù rei ) which
caught up219 with the regulations for the navy. The pension of civil
officials was regulated by the Officials’ Pension Ordinance (Kanri
onkyù rei ) of 4 January 1884. The subject of this ordinance became
a law (hò instead of rei ), and as such was enacted together with the
217
The Meiji government was confronted with an enormous amount of claims for
pension (peers, ex-samurai, former common soldiers). The settlement of the claims was
an urgent financial necessity since the payments required a third or a fourth of the
treasury’s annual expenditures. R. Ishii/W. Chambliss (note 2) at 82–83/106–109.
218
They provided for relief in the case of fatal wounds and of the memorial ser-
vice. They covered casualties in the Saga revolt (1874) and the Taiwan expedition
(1874) and were temporary regulations.
219
This ordinance was not limited to the consequences of the two military events
(see above). The difference in the names of the ordinances (onkyù = payment towards
superannuation, tai’in = retirement) is a sign of the fact that the two parts of the
armed forces were controlled by two separate ministries: Ministry for the Army and
Ministry for the Navy, the successors of the War Ministry (Hyòbushò ) which had
been divided into the two ministries on 4 April 1872. In September 1883 the two
ordinances were amended and the terms standardized: onkyù. In June 1890 the sys-
tems were combined under the Law for the Pension of Soldiers (Gunjin onkyù hò ).
164 public law
Officials’ Survivors’ Benefits Law (Kanri izoku fujo hò ) in June 1890.

The support of policemen and jailers had already been regulated in
July 1882, and the pension for them and their survivors was ordered
anew in July 1901. Since special rules for several kinds of teachers
and their survivors were added the system was in a state of flux.220
No sooner than on 14 April 1923 the Pension Law (Onkyùhò ) was
enacted. Art. 1 of the law granted a legal claim to the public servants
(kòmuin) and the persons treated the same as a public servant, as well
as to their survivors, to receive a pension under the conditions laid
down in the law. Public servants were defined as civil servants, sol-
diers, teachers, policemen, jailers, and similarly treated persons—
these were, for example, employees of the administration of the Ise
shrines,221 the Shintò priests of the imperial and governmental shrines,222
employees of the prisons administration and juvenile correction insti-
tutes, and certain employees of local units. If not otherwise defined the
similarly treated persons were determined by imperial ordinance. Their
position had to be comparable with that of a hanninkan or higher.
There were several sorts of pensions (art. 2):
1) ordinary pension ( futsù onkyù),
2) increment pension (zòka onkyù),
3) disabled officials’ annuity (shòbyò nenkin),
4) one-time allowance (ichiji onkyù),
5) monetary grant for disabled non-commisioned officers and below
(shòbyò shikin) if the disablement did not reach the grade justify-
ing an annuity,
6) allowance in aid ( fujoryò ),
7) one-time allowance in aid (ichiji fujoryò ).
Numbers 1) to 3) and 6) were annuities, the others were lump sums.
Further provisions of the law defined or regulated many details.
The cause of leaving the public service (taishoku) ipso facto was not
old age—there was no age limit—but the consequence of one of
three circumstances: dismissal from service, retirement, forfeit of office
220
Under art. 84 of the Pension Law of 14 April 1923 thirty-nine former laws
and ordinances were repealed.
221
The two supreme shrines of Shrine Shintò.
222
Kankokuheisha: shrines of Shrine Shintò, maintained out of the imperial bud-
get (kanpeisha) or the government’s budget (kokuheisha). See W. Gundert (note 195)
at 152 and 213.
(nenkan, taikan, shikkan, art. 26).223 If not otherwise decreed by impe-

rial ordinance the chief of the Cabinet’s Pension Secretariat decided
on the pensioning-off. The official concerned was allowed to protest
against the decision, and, if this was upheld, to lodge a complaint
with the prime minister or take legal action before the administra-
tive tribunal. The prime minister had to ask for advice from the
Pension Examination Committee (arts. 12–15).
A new version of the Pension Law was introduced by a series of
amendments since 1946.
223
Until the enactment of the new public servants’ order after 1945 the status
and the post of an official were different legal terms. First, he was appointed official
(kan), then a post (shoku) was assigned to him. If the official lost his status as a kan
this resulted in the loss of his post (shoku; taishoku = retirement ipso facto—the term
was also used in the case of retirement of one’s own accord). In the case of a sol-
dier or teacher not being a kan an additional cause of retirement was discharge
from the service (kaishoku). The word shoku instead of kan (menshoku, taishoku, shisshoku)
was, logically, otherwise used if the official had not the status of kan.—The sepa-
ration of kan and shoku, as described in the present context, was abolished under
the new public service system after World War II.
CHAPTER THREE
CIVIL CODE
3.1 General Provisions
Ronald Frank
3.1.1. Introduction: Codifying Civil Law in Meiji Japan
The famous “Meiji Charter Oath” (Gokajò no Goseimon) of 1868 con-

tained a number of statements that would have particular significance
for the development of civil law in Japan. Not only were “evil prac-
tices of the past” going to be abandoned, everything was going to
be based “on the just laws of nature”, and, moreover, expertise on
how to achieve just that should “be sought all over the world”. With
regard to civil law issues the process of determining just what con-
stituted an “evil practice of the past” and, more importantly, of con-
structing a modern legal framework to replace such practices would
take exactly three decades, until the Civil Code was finally enacted
in July of 1898. Knowledge would indeed be sought all over the
(western) world, and French, Anglo-American, as well as German
models would find proponents in the growing community of legal
experts in Japan. In the end, a Civil Code would emerge that fol-
lowed closely that of Germany in both structure and substance. The
following account will trace specifically the development of the first
chapter of the Civil Code, entitled “General Provisions” (sòsoku), pro-
mulgated together with the chapter on Real Rights and that on
Obligations in 1896. These parts belong to the so-called “New Civil
Code” and are in effect to this day. Needless to say, the chapter on
General Provisions owed its existence solely to the fact that the
drafters of the code chose to follow the lead of Germany where a
comparable code had been enacted the same year. An earlier draft
of the Japanese Civil Code, known as the “Old Civil Code”, had been
promulgated in 1890 but had never gone into effect. That version
had been based on the Code Napoleon and, consequently, it did
general provisions 167
not include a comparable chapter. However, rather than limiting the

scope of this account to just the six years that separate the two vastly
different versions of the Civil Code, it appears necessary to trace the
development of civil law in Japan from the moment the country
embarked upon the course towards modernization.
3.1.1.1. Civil Law in Traditional Japan

Students of the Japanese Civil Code often stress two closely related
points that have become almost axiomatic in the discourse on mod-
ern legal history. First, the code was essentially an example of mod-
ern (western) statutory law grafted in response to foreign pressure
onto a traditional (non-western) society. Second, the reception of
legal concepts set forth in the code was severely hindered by the
fact that traditional Japan lacked not only a comprehensive system
of statutory law, it had, in the words of Joseph Needham, no idea
of law equally applicable to heaven and man, and hence no legal
science.1 While both these statements are certainly valid in their own
right, they tend to obscure the extent to which instruments of civil
law had been developed in pre-Meiji Japan.
As far back as the Kamakura period (1185–1333) courts routinely
distinguished between civil and criminal cases, classifying cases con-
cerning real rights and obligational rights in separate categories.2 In
the flurry of legislative activity that followed the collapse of the cen-
tralized political order in the fifteenth century such compartmental-
ization was not always possible or even considered necessary. Yet
the civil cases adjudicated in the courts of various independent daimyò
of the Warring States period (1467–1590) outnumbered criminal or
administrative matters by a large margin. To be sure, even where
a comprehensive domain law code existed uniform application of its
provisions was be no means guaranteed. Furthermore, in judicial
practice custom was a vastly more important source of law than
statute. Nevertheless, all of the surviving codes do contain provisions
that could be classified as belonging to the category of civil law.
1
See Richard Minear, Japanese Tradition and Western Law (Cambridge: Harvard
University Press, 1970), p. 3.
2
See Carl Steenstrup, A History of Law in Japan Until 1868 (Leiden: E.J. Brill,
1991), pp. 95–96.
168 civil code
In a sense the political order of the Edo period (1600–1868) per-

petuated this state of affairs. The confederate structure of the Japanese
polity, with daimyò maintaining an often precarious autonomy vis-à-
vis the shògun’s government (bakufu) in Edo, resulted in bewildering
variety of often overlapping jurisdictions. Statutes enacted by the
bakufu and by the daimyò for their respective domains addressed issues
of civil law. However, the distinction of criminal and civil cases in
judicial practice appears to have been a procedural rather than sub-
stantial one.3 Instruments of civil law, especially with regard to oblig-
ations, were developed in the thriving commercial centers of Tokugawa
Japan. Village communities enjoyed considerable autonomy in gov-
erning their affairs, consequently there emerged a body of custom-
ary law, a large part of which can be classified as civil law.4
The creators of a modern civil code for Japan were thus by no
means looking onto a blank slate, and there is indeed ample evidence
that the drafters of the code consulted the available sources of tradi-
tional law and procedure.5 However, even though traditional Japan
had not been totally devoid of civil law, the creation of a modern
civil code was a fundamentally new departure. Jurisprudence in tra-
ditional Japan had relied on written statute only to a limited extent,
instead placing heavy emphasis on reason (dòri ) and custom. Fur-
thermore, statutes themselves had been often unsystematic, limited
in scope, and, most importantly, had not been made known to the
general public. Such codes as did exist, e.g. the Kujikata Osadamegaki
of 1741 were explicitly designed as reference works for magistrates
and judges. There was a tendency for statutes to be considered com-
plementary to custom. With few exceptions most written law had
been designed to clarify customary law and precedents, and to pro-
vide a yardstick in cases where there was no applicable custom. Only
very rarely did a code ever explicitly supersede existing customary
law.6 It should also be remembered that even though courts could
3
See Dan F. Henderson, Conciliation and Japanese Law: Tokugava and Modern (Seattle:
University of Washington Press, 1965), p. 101.
4
For an analysis of village custom see Dan F. Henderson, Village “Contracts” in
Tokugawa Japan (Seattle: University of Washington Press, 1975).
5
Boissonade himself asserts this much in his Les anciennes coutumes du Japan et le
noveau Code Civil. See John Owen Haley, Authority Without Power: Law and the Japanese
Paradox (New York: Oxford University Press, 1991), p. 71.
6
A case in point would be some of the so-called house laws of the Sengoku
period.
and frequently did find in favor of commoners, in the words of Carl

Steenstrup “justice done was always a grace, not a right.”7
Needless to say, legislative acts in pre-modern Japan had a political
dimension as well. Besides being an administrative tool, a code did
lend an aura of legitimacy to its author, it served as a symbol of
recognized public authority. It is noteworthy that periods of increased
legislative activity as a rule coincided with the immediate aftermath
of major political upheavals, when the need for symbols of legiti-
macy for new rulers was the greatest. However, despite a renewed
interest in Chinese law during the eighteenth century, no steps were
taken towards the creation of a comprehensive, universally applica-
ble law code in traditional Japan. Law was never defined, and never
appears to have been thought of, as a body of abstract principles
until the forceful opening of Japan in 1854 increased contact with
the west. The legal order of pre-modern Japan had always been
viewed as a quintessentially ethical order. In contrast, a modern, i.e.
western, body of law would necessarily reflect the most recent devel-
opments of legal philosophy in the West where a system of laws
independent of ethics had been devised. Whether theorists in the
West considered law an art or a science, whether they espoused nat-
ural law theories or legal positivism, their ideas were singularly alien
to the Japanese society that was about to receive them in the form
of universally applicable statutes.
3.1.1.2. First Steps Towards Codification (1868–1870)

The events surrounding the so-called Meiji Restoration of 1868 belong
to the realm of political rather than legal history and shall not be
discussed here. The decision to embrace a modern, i.e. western, legal
order was made in response to the pressure of Western powers on
Japan and to the desire to revise the unequal commercial treaties
that had been concluded in the closing years of Tokugawa rule. The
young leaders of new Japan were very much aware of the fact that
in order to forestall further encroachments on Japan’s sovereignty by
western powers an emulation of the practices of the west was called
for. The mere existence in all treaties of clauses providing for con-
sular jurisdiction in criminal and civil matters over foreign nationals
7
Steenstrup, p. 122.
170 civil code
in Japan made it clear that the Western powers saw the legal order
of Japan as inferior to their own. That fact in itself precluded the
creation of law codes based directly and explicitly on custom and
statutes of pre-Meiji Japan.8 A clear break with the past was called
for, the formal institutional, procedural, and statutory framework of
the new legal system could not afford to have antecedents in the
“barbaric” practices of yore. After all, the West claimed the mono-
poly for “civilization”.
Nevertheless, the process of codification that the framers of the new
order embarked upon had one aspect in common with all previous
legislation—it would result in the imposition of formal institutions
and processes created by a ruling elite. What would be new was the
degree to which these institutions were designed to have an impact
on the everyday lives of the population at large.
It is furthermore tempting for the historian to assume certain par-
allels with regard to the political significance of new legislation. The
Meiji government found itself in a situation not dissimilar to that of
the early Heian, Kamakura, or late Muromachi periods where pre-
viously marginal elite groups had assumed power and used legislative
acts to bolster their legitimacy. In all of these cases a conscious clean
break had been made with the past and new laws had been pro-
mulgated by those responsible. The aim of these legislative efforts
had been, first and foremost, to secure and legitimize the positions
of the new power holders. In that tradition, the Meiji government
too seems to have been interested primarily in order, rather than in
law. Law was perceived to be a convenient and effective ordering
device, something applied by the government to the governed. Western
law codes were attractive mostly for two reasons. They were a product
of the system Japan tried to emulate, and they were seemingly all
encompassing. The fundamental conceptual difference between such
an understanding of law and the philosophy underlying Western legal
system would dawn on the creators of modern Japan only gradually.
The publication of the first book on Western law in Japan, entitled
“Taisei kokuhò ron” (A Treatise on Law in Western Countries) coin-
cided with the Meiji Restoration in 1868. Its author was Tsuda
Masamichi (1829–1903) whose name would forever been linked with
8
Theoretically such a step would have been possible, since sophisticated instruments
of civil law had been developed in the cities, villages, and courts of Tokugawa Japan.
Civil Law—it was he who invented the term minpò.9 Tsuda had been
sent by the shogunate to study at Leiden University from 1862 to
1865, and subsequently he became one of the first legal scholars of
Japan. His view that codes were “an excellent instrument for regu-
lating the people”10 was most certainly shared by most of his readers.
Despite his early praise for western law, Tsuda became instrumental
in the drafting of the first post-Restoration criminal code (shinritsu
kòryò). This code had the distinction of being the first code designed
for nationwide application, however, it was based on principles of
traditional Chinese penal law, particularly that of the Ming (1368–1644)
and Qing (1644–1912) dynasties.
In 1867 the shogunate’s Commissioner of Foreign Affairs ( gaikoku
bugyò ) Kurimoto Jòun (1822–1897) had visited France and had appar-
ently been much impressed by the Code Napoleon. In his published
reminiscences he stressed the value of such an all-encompassing code
as a mechanism to control all aspects of modern life.11 However, it
was another former bakufu official who had traveled in France at
the same time who would emerge as one of the creators of the Civil
Code in Japan—Mitsukuri Rinshò (1846–1897). Having become an
official translator for the new Meiji government he was entrusted
with following up on Kurimoto’s suggestion that the French code
be translated into Japanese. In the process of working on this task
Mitsukuri was instrumental in developing a new legal vocabulary,
since most of the concepts on which the French code rested had no
equivalents in the Japanese language. Most famously, his rendering
of droit as “kenri” (a compound of the characters for “authority” and
for “benefit”) and of droit civil as “minken” (= “people’s authority”)
appeared to be politically dangerous if not subversive to a govern-
ment that was still feeling highly insecure. This translation effort was
at the heart of the first real attempt to create a Civil Code for Japan.
9
The Kòjien still lists the word as “translated/created by Tsuda Masamichi”.
It is his rendering of the Dutch “Burgerlijk Regt”. It is somewhat difficult to trans-
late this compound back into English. The combination of “min” (= people) and
“hò” (= law) could be rendered as “citizen’s law”, “people’s law”, or “commoner’s
law” depending on the political and historical context. In an era of drastic change
all of these meanings had a certain amount of validity. In current usage, minpò
means both Civil Code and private law.
10
Robert Epp, Threat to Tradition: The Reaction to Japan’s 1890 Civil Code (Ph.D.
Dissertation, Dept. of History and Far Eastern Languages, Harvard University, 1964)
as quoted in Haley, p. 74.
11
Ibid.
172 civil code
3.1.1.3. The French Phase (1871–1890)

Etò Shimpei (1834–1874) is probably most familiar to students of
Japanese history as one of the leaders of the Saga Rebellion of 1874,
the first of several unsuccessful uprisings against the Meiji government.
It is somewhat ironic that this famous rebel against the new order
had been the very person in charge of defining its legal framework. It
was he who in his capacity as chair of the Civil Code Committee (Minpò
kaigi) in September of 1870 ordered Mitsukuri Rinshò to translate
as quickly as possible the French Code civil.12 Before tracing the
progress of Etò’s work and that of his successors, however, we should
consider the reasons for their eagerness to embrace the French model.
These reasons were practical as well as theoretical. The Code civil of
1804 was recognized throughout continental Europe as the best exam-
ple of legislation designed to provide equality for all citizens of a
centralized nation state. Its substance and structure was reflected in
the codes of many other countries of Europe, notably in the Nether-
lands, where Tsuda Masamichi had encountered it in 1862. The
2208 articles of the code arranged in three books on “Persons”, “Goods
and Property”, and “Acquisition of Property”, respectively, appeared
to cover all aspects of modern society without being overly detailed.
In short, this was exactly what the Meiji Government looked for—
a rational, abstract code that was proven in practice and that was
widely hailed as the greatest legal achievement of the Western world.
The historian cannot fail to note another important connection. The
Code civil was the result of the French Revolution which had destroyed
the feudal institutions of the ancien regime. Japan was in 1868 at a
similar juncture in its history. The Meiji leaders, like the drafters of
the Code civil subscribed to the “creed of Enlightenment and the Law
of reason that social life can be put into rational order if only the rules
of law are structured according to a comprehensive plan.”13 The main
difference between the authors of the French code and the aspiring
legislators of Meiji Japan was how they envisioned that this “rational
order” was going to be achieved. In France most civil law belonged
to the realm of private law, consequently the ordering process was
12
His famous injunction to Mitsukuni to speed up the process by simply replac-
ing the word “French” with “Japanese”, though never documented, appears to cap-
ture the spirit of the early Meiji years rather well.
13
Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law, Vol. 1
(Amsterdam: North-Holland Publishing Co., 1977), p. 78.
believed to be subject to private, autonomous initiative. The rules were

enforced at the discretion of private parties rather than by state fiat.
Application and enforcement of private law provisions were by de-
finition outside the purview of the state. In Japan, all lawsuits, includ-
ing those initiated by private parties had traditionally been called
“public matters” (kujikata), since it was a public authority that granted
justice. The realization that a modern civil code would be a means to
empowering the people to take autonomous action, that its provisions
by and large would not be enforced through administrative action
by the state came as something of a shock to the Meiji reformers.
The organ entrusted with overseeing the creation of new codes
for Japan was initially the Office of Law and Institutions (seidòkyoku).
The Civil Code Committee (minpò kaigi ) was part of the Law Office,
with Etò Shimpei heading both. An initial draft translation of parts
of the Code civil, prepared by Mitsukuri Rinshò was approved by
the committee before it became part of the Left Chamber (sa’in) of
the Grand Council of State (Dajòkan) in 1871. This draft, entitled
“Civil Code Resolution” (minpò ketsugi ) contained 79 articles from the
first two books of the Code civil drawn mostly from the Loss of Rights
section of Book One and from the Acts of Civil Status section of
Book Two.14 At this juncture it became apparent that the provisions
of the French code were at times diametrically opposed to existing
Japanese custom and statutory law, in particular the Family Registration
Law of 1871. Once the committee had come under the auspices of
the Left Chamber (sa’in)15 due to Etò’s appointment as deputy head
of this body all real work on the draft ceased. Mitsukuri Rinshò
relates that “There was discussion about wording only, but not on
any substantial issues.”16
The first complete draft of a civil code in Japanese emerged a
year later, in 1872. It was the result of a concerted effort of the
Law School (Meihòryò ) of the Ministry of Justice (Shihòshò ). This draft,
entitled “Provisional Regulations for the Imperial Civil Code” (Kòkoku
minpò kari kisoku) followed the French example very closely, while
taking into consideration Japanese custom and legal precedents. It
14
See Ukai Nobumasa et al., Nihon kindaihò hattatsushi, Vol. 5 (Tokyo: Keisò
Shobo, 1958), p. 6.
15
An institutional reform within the Great Council of State (dajòkan) in July had
merged the Office of Law and Institutions with the Left Chamber.
16
Quoted in ibid., p. 9.
174 civil code
was essentially the first draft for what would become the 1890 Civil
Code that is usually referred to as the “Old Civil Code”. Several
provisions of the draft differed from the French model, especially in
the field of Family Law, Inheritance, and Property Law.17 It remains
unclear to what extent Etò Shimpei was personally involved in the
work on the draft.
Upon being appointed Minister of Justice Etò convened in the fall
of 1872 the Civil Code Conference of the Ministry. A central role
was played by Georges Bousquet a legal adviser to the Meiji gov-
ernment who had helped in the drafting of the “Provisional Rules”.
As a result of its deliberations, the conference produced an 88 article
draft entitled “Provisional Rules for the Civil Code” (Minpò kari hòsoku)
that dealt mostly with question of Civil Status. The provisions of
this document were in conflict with existing Family Registration Law,
and although it was presented to the Central Chamber (Sei’in) of the
Grand Council of State it never became law.
After Etò was removed from the post of Minister of Justice, delib-
eration on the Civil Code draft continued in the Left Chamber of the
Great Council of State. Greater emphasis was now apparently placed
on incorporating Japanese legal tradition. The draft that was pro-
duced by 1874 consisted of five parts dealing with the inheritance
of house headship, bequests, adoption, guardianship, and marriage.
The Left Chamber ceased to exist in 1875,18 whereupon the task
of drafting a civil code was once again transferred to the Ministry
of Justice. A special Civil Code Department (minpòka) was formed at
the ministry and in 1876 a Bureau for the Investigation of Local
Customs (chihò kanrei torishirabe kyoku) was established in that depart-
ment. The efforts of this bureau resulted in the compilation of two
collections of customary law, the “Collection of Civil Customs” (Minji
kanrei ruishò ) in 1877, and the “Collection of Civil Customs of the
Nation” (Zenkoku minji kanrei ruishò ) three years later. These efforts
were directed by the new Justice Minister Òki Takatò (1832–1899)
who was apparently committed to incorporating some aspects of tra-
ditional customary law into the draft of the civil code. However, the
draft produced by 1878 was closely mirroring the French code, per-
haps owing to the fact that Mitsukuri Rinshò had once again been
instrumental in its compilation.
17
For a detailed list of these issues see ibid., pp. 8–9.
18
It was replaced by the Council of Elder Statesmen (Genrò-in).
Subsequently Mitsukuri’s drafts were given less and less weight in

the deliberations about the Civil Code. Òki was made the chief of a
Bureau for the Compilation of a Civil Code (Minò hensan kyoku) under
the supervision of the Council of Elder Statesmen in 1880. By that
time it was understood that some aspects of the future civil code,
most importantly family law, had to take Japanese customs into con-
sideration while others would be allowed to mirror foreign examples
more closely.
The major figure of this drafting effort was Gustave Boissonade
(1829–1910) who had been an adviser to the Meiji government and
a teacher of law in Japan since 1873. Boissonade himself was entrusted
with drafting the sections on property law in French, while the task
of translating Boissonade’s draft fell to Mitsukuri Rinshò, Kurokawa
Seiichirò, and Isobe Shirò. Thus this project represented the first
real drafting effort that did not start with a translation of the Code
civil. However, the progress was slow, and before the compilation
bureau was abolished in 1886 only parts of two of the originally
planned five books had been completed.19
The abolition of the compilation bureau was closely linked with
the political pressures that had surrounded the compilation process
from the very beginning. One of the major reasons for the desire
to enact modern law codes continued to be the question of the un-
equal commercial treaties. Chronologically coinciding with Boissonade’s
work in the compilation bureau, the Minister of Foreign Affairs Inoue
Kaoru (1836–1915) made a renewed push for treaty revision from
1880 onward. By 1886 a compromise solution with foreign powers
had been reached, but ironically it fell to Boissonade to convince
the Meiji leadership that this solution would be injurious to Japanese
interests. The vast significance of the codification effort for Japan’s
foreign policy was illustrated by the fact that the Ministry of Justice
lost control over the process and instead the Foreign Ministry became
responsible for the speedy completion of a draft. After Inoue’s treaty
revision plan had failed and he was forced to resign as Foreign Minister
in 1887, the Ministry of Justice once again took control. The new
Minister of Justice Yamada Akiyoshi established a “Code Investigation
Commission” (Hòritsu torishirabe iinkai ) under his personal leadership.
19
Parts of Book 2 (Property) and Book 3 (Acquisition of Property) were sub-
mitted to the Cabinet for review in March of 1886.
176 civil code
This commission reviewed Boissonade’s draft of four of the books

(Property, Acquisition of Property, Mortgages, and Evidence) which
were submitted to the cabinet in late 1888. The remaining parts,
namely the Book on Persons and the section on inheritance of the
Book on Acquisition of Property, were drafted by Japanese members
of the commission, Isobe Shirò (1851–1923) and Kumano Toshizò
(1854–1899). It remains unclear in what concrete way Boissonade
might have influenced the drafting of these parts, although his ideas
appear to be reflected there as well. After going through several
rounds of revisions and amendments the two sections were submitted
to the cabinet in April of 1890.
By that time Boissonade’s draft had already been considered by
the Council of Elders and the Privy Council (sùmitsuin) and was sub-
sequently promulgated in early 1890. The family law draft followed
the same path to be officially promulgated in October of the same
year. The whole Civil Code was supposed to go into effect January
1, 1893. However, by the time of its promulgation a debate between
its supporters and opponents was already well under way. Eventually
this debate would prevent the code from going into effect as planned
and result in a thorough shift in the orientation of Japanese legal
science. It is to this controversy that we shall now turn.
3.1.1.4. The Civil Code Controversy 20

After more than 20 years of work on translations and draft proposals
a complete Civil Code had finally been published in the fall of 1890.
However, it was destined to become known to history as the “Old
Civil Code” (kyùminpò) even before its promulgation. The process of
drafting the code had in a way mirrored the varying degree to which
Western ideas had been accepted in Japan over the course of these
two decades. After a initial infatuation with everything Western and
modern had found its illustration in the attempt to simply translate
the French Code civil, a more realistic attitude encouraged the incor-
poration of Japanese custom. It is more than just coincidence that
this shift in direction occurred at the time of the last great uprising
of proponents of tradition against the new Meiji state in 1878. Foreign
20
The debate is referred to in Japanese as either hòten ronsò (Codification Debate)
or minpòten ronsò (Civil Code Debate). In fact, the Civil Code was not the only piece
of legislation that was being discussed at the time.
policy considerations, namely the question of revising the unequal

commercial treaties with Western powers led to a greater reliance
on western models in the early 1880s, as exemplified by the role played
by Gustave Boissonade in the drafting of the code. After the debacle
of 1887 when the attempt to reach an agreement with the Western
Treaty powers had proven unsuccessful, further work on revising and
completing the draft was done almost exclusively by Japanese jurists.
This coincided with a general backlash against what was perceived
by many vocal critics as blind copying of Western customs and insti-
tutions. Such slavish adherence to Western models, the argument
generally ran, would eventually result in the utter destruction of the
moral foundation of the Japanese polity.
Needless to say, the Civil Code of 1890 was a very convenient tar-
get for nationalist sentiments, since its roots in the Napoleonic code
were well known. However, the extent to which the criticism levied
against the code was justified even from a nationalistic point of view
is a different matter. What is more, the code was attacked not only
on political grounds. Critics from the growing community of jurists
pointed out several shortcomings that in their view warranted a post-
ponement of the enactment of the code. In other words, the con-
troversy surrounding the Old Civil Code had a technical as well as
a politico-ideological dimension. It should also not go unmentioned
that turf wars between proponents of different schools played a role
in the controversy as well.21
The debate about the Civil Code had in fact begun even before
its promulgation, with the first critical “Views on the Compilation
of Law Codes” (Hòten hensan ni kansuru ikensho) being published by
the Society of Legal Scholars (Hògakushi kai )22 in 1889. By 1890 the
lines between the “Rapid Enforcement Faction” (dankòha) and the
“Postponement Faction” (enkiha) were all but drawn. Opponents of
the Code voiced several concerns. One recurring theme was that the
statutory law being proposed had no basis in existing Japanese legal
practices. The code was essentially an academic exercise in legisla-
tion forced upon a population that lacked the basic understanding
of the workings of a comprehensive code.
21
For a brief summary of interpretations of the debate by various historians see
Haley, p. 76.
22
The members of this society were connected to Tokyo Imperial University and
were proponents of English law.
178 civil code
Perhaps the most concrete criticism in an otherwise highly emo-

tionally charged debate had to do with the question of systemic cohe-
sion. Both the Code of Civil Procedure and the Commercial Code
had been drafted by German jurists, while the Civil Code was obvi-
ously following the French model. This led to obvious contradictions
that would make the application of these codes in practice difficult.
Consequently, more time was needed to revise the existing drafts so
as to ensure their practical validity.23 Curiously, in the light of sub-
sequent events, this argument was not used explicitly in favor of
using a German model for a new Civil Code draft as well.
The ideological essence of the controversy is epitomized in the title
of an essay that the well known legal scholar Hozumi Yatsuka (1860–
1912) published in 1891—“If the Civil Code is Enacted, Loyalty and
Filial Piety will be Destroyed” (Minpò idete, chùkò horobu). Hozumi, along
with scores of others, perceived the Civil Code to be fundamentally
incompatible with Japanese tradition. Although a famous scholar of
constitutional rather than civil law, Hozumi was adamant that a code
like the one proposed would undermine the very foundations of
Japanese society. To him, law had no independent existence, it was
inseparable from its social functions and hence from ethics. Echoing
the etymology of the Chinese character for law (hò) which in an
early form contained a mythological animal capable of separating
right from wrong he wrote, “Law attempts to maintain the right,
that is, the social ideal, and to expel the wrong. [. . .] When those
who study law and make law do not understand the purpose of law
[. . .] law becomes science teaching us how far we can go in com-
mitting bad acts”.24 Hozumi’s criticism was fundamental and reflective
of the sentiments of conservative forces in Japan for whom the code
was simply “too foreign”. By emphasizing the rights of the individual
the code implicitly eroded the family system that provided the moral
backbone of the Japanese polity. Furthermore, in Hozumi’s view indi-
viduals received the capacity for rights in return for absolute obedience.
His interpretation of the evolution of the Japanese political system
was threatened by the concept of the autonomously acting individual.
23
This argument curiously echoes the one presented by Savigny in his famous
controversy with Thibaut in 1814 over the readiness of Germany for a Civil Code.
The apparent parallel was first mentioned by Hozumi Nobushige (1856–1912).
24
Quoted Minear, p. 88.
It should not go without notice that Hozumi’s article was published

by the journal of the Tòkyò Hògakuin Law School, one of the centers
for the study of English law. From the same school came a pamphlet
entitled “Opinion for Postponing the Enforcement of Codes” (Hòten
jisshi enki iken) in April of 1892. It echoed some of Hozumi’s con-
cerns but also levied the more concrete charge that the code would
compromise the regulating power of the constitution. This particular
document was distributed to senior politicians and was very likely
an important factor in convincing a majority of Diet members to
vote for a postponement of the Civil Code in May 1892.
Many of the charges that the Postponement Faction levied did indeed
have a certain amount of merit. However, it is noteworthy that
although the main theme of the controversy revolved around family
and inheritance law, few if any concrete points of contention were
identified. The parts of the code that were criticized most were the
very ones that had been drafted by Japanese jurists under careful
consideration of traditional custom. All provisions of the code had
been extensively discussed by high-level government officials. Allegations
that the code was a simple copy of the French one could be easily
refuted by pointing out differences in the structure of the two codes,
the Japanese code had five separate books whereas the Code civil had
three. However, the main charge of the conservative critics, namely
that Western civil law would in the long run erode the traditional
Japanese value system, was indeed substantial. The neo-traditionalists
around Hozumi Yatsuka were not averse to the use of Western legal
forms, as the case of the Meiji constitution had shown.25 For them
the Civil Code presented a challenge to tradition because of its very
fundamental assumptions of individual autonomy. This made it impos-
sible to conceive of the code as a means of bolstering the legitimacy
of the regime and enforcing moral values—the very tasks law had
fulfilled in traditional Japan.
Of the many criticisms directed at the Old Civil Code, few had
a concrete focus on the code itself. One notable exception was Tomii
Masaaki (1858–1935), a graduate of the University of Lyon who
pointed out numerous shortcomings in the code itself. He objected
to the exclusive reliance on the French model, pointed out a number
of contradictions and duplications, and observed that many provisions
25
In fact, Hozumi Yatsuka would make a name for himself as a commentator
on the character of the Meiji Constitution.
180 civil code
were in fact of procedural or public law nature.26 In particular he

argued for the inclusion of concepts derived from German and English
private law into the code. Another leading critic of the code was
Hozumi Nobushige whose criticism, unlike that of his brother Yatsuka,
was rooted in misgivings about the structure, consistency, and “the-
oretical defects” of the code itself. Hozumi Nobushige was at the
time already an established specialist in comparative law, having pub-
lished, among others, an article on “Comparative Analysis of English,
French, and German Legal Theory” (Ei-futsu-doku hògaku hikakuron) in
1887. He had studied law in England and Germany, and this par-
ticular fact is often cited as a reason for his opposition to the Old
Civil Code. In fact, he would later admit himself that he had become
a champion of German law while being a student in Germany.27
The arguments presented by the Rapid Enforcement Faction mir-
rored those of the postponement group, in some cases they were
almost identical. In their view a postponement would be causing the
downfall of Japanese ethics and throw Japan into turmoil. The stand-
point of the proponents of the Civil Code was summed up in an
article published in the aptly titled “Journal of the Association for the
Rule of Law” (Hòchi kyòkai zasshi ) in early 1892.28 In it, the argument
was made that a postponement of the Civil Code would jeopardize
Japan’s credibility as a modernizing nation in foreign eyes. The impli-
cation was of course that the opponents of rapid code enforcement
were harming Japan’s national interest by opposing a modern piece
of legislation. Furthermore, the argument went on, postponing the
enforcement of the civil code would mean placing legislative power
in the hands of judges. One is left to wonder to what extent this
was directed at the followers of English law who made up a sizable
proportion of the code’s opponents. The article also mentioned the
dangers to the economy and to individual rights should the code be
postponed.
In the end, the arguments of the Postponement Faction won out.
Shortly after the publication of the article mentioned above a bill was
introduced in the Diet that would delay the enforcement of both the
26
For a listing of Tomii’s concern see Ishii Ryòsuke, Japanese Legislation in the Meiji
Era (translation by Chambliss, Tokyo: Tòyò Bunko, 1958), p. 588.
27
See below, p. 183.
28
The article was entitled “An Argument for the Code’s Immediate Enforcement”
(Hòten jisshi dankò no iken). For a summary of the points made therein see Ishii (note
26), p. 587.
Civil Code and the Commercial Code until 1896. This bill was even-
tually passed by both houses, thus sealing the defeat of the Rapid
Enforcement Faction.
Historians of the debate never fail to mention its highly emotional
character that at times bordered on the irrational and grotesque. At
the same time, labels seem to be easily found and applied to the
two groups. One could, for example describe the controversy in terms
of a clash of proponents of French law (the enforcement group) and
English law (the postponement group). A contemporary observer and
participant in the drafting of the new Civil Code, Niida Matsutarò,
wrote in 1938, “The dispute is one waged between the students of
French law and those of English law, not an enlightened contest of
learned views between the school of natural law and the historical
school.”29 The problem with such a differentiation is that while there
is evidence of such a split in the community of jurists, it appears to
be too simplistic an explanation for the code controversy. For one,
it does not explain why Tomii Masaaki was a vocal opponent of
immediate enforcement although he officially belonged to the “French
law faction”. More importantly, if the main point of contention had
been the preference for one or another foreign model of law, one
would have expected the winning side to capitalize on their success.
However, there was no shift towards a more pronounced reliance
on English jurisprudence whatsoever discernible in the aftermath of
the code controversy. That is to say, although schools teaching mostly
English law, e.g. Tokyo Imperial University, emerged as hotbeds of
opposition to the Old Civil Code, this opposition does not appear
to have been primarily a turf war.
In academic terms, the controversy could be described as a conflict
between proponents of natural law theory and followers of the his-
torical school. Boissonade began his career in Japan by teaching
natural law, and his ideas influenced many participants in the code
controversy. On the other hand, Hozumi Yatsuka had in his years
of study in Germany internalized the theories of Savigny and oth-
ers, and was in the process of successfully applying a historical method
in his interpretation of modern Japanese constitutional law. Yet it
29
Niida Matsutarò as quoted in Noda Yoshiyuki, “Nihon ni okeru hikakuhò no
hatten to genjò” (Comparative Jurisprudence in Japan: Its Past and Present) in
Tanaka Hideo (ed.) The Japanese Legal System (Tokyo: University of Tokyo Press,
1976), p. 206.
182 civil code
would be to narrow an explanation to simply equate the Enforcement

Faction with a group of natural law theorists and the Postponement
Faction with adherents of the historical school, if only because much
of the debate did not have an academic focus in the first place.
It is of course easiest of all to cast the code’s opponents in the
role of ultra-nationalist reactionaries who were trying to hamper his-
torical progress as embodied by the open-minded internationalist
Enforcement Faction. At first glance such an interpretation appears
to be very reflective of the main arguments presented in the con-
troversy. It particularly resonates with Hozumi’s famous epistle por-
tending the death of filial piety. However, it appears to be necessary
to make a distinction between criticism levied against a foreign
inspired code, and criticism of the fact that the code was “foreign”
in the first place. While the former would be technical (cf. Tomii)
and find a narrow professional audience of jurists, the latter would
have much greater political appeal. The immediate decision to post-
pone the enforcement of the code was of course made by politicians
rather than jurists. But this should not lead us to believe that the
conservative vs. progressive dichotomy is by itself a valid explanation
of the controversy. If the postponers were die-hard conservatives and
traditionalists first and foremost, how do we explain the fact that the
Old Civil Code was replaced by a new draft that was as foreign if
not more so than its predecessor?
Neither of the above models of explaining the Civil Code Con-
troversy appears to be satisfactory on its own. However, at the sane
time, they all reflect aspects of the debate that were definitely on
the minds of the participants and observers. In other words, they all
highlight different aspects of the debate, they are necessary compo-
nents of a historical assessment without being sufficient separately by
themselves as analytical tools.
3.1.1.5. The German Model

Historians who view the Civil Code Controversy as something of a
turf war between proponents of English and French law are quick
to add that the shift towards German jurisprudence in the compi-
lation of the New Civil Code represented in fact a compromise
between these two factions. However, such a treatment tends to over-
look the deeper roots of the Japanese interest in Germany in gen-
eral and German law in particular.
It was obvious to the Meiji oligarchs that Germany, having entered

the stage of international relations as a nation state even later than
Japan itself, could serve as a model for Japan in a variety of ways.
Japanese students of Western law and institutions, but primarily of
medicine and science had flocked to German universities through-
out the Meiji period. The Meiji government had relied on the ser-
vices of Hermann Roesler (1834–94) as a legal adviser since the
late 1870s. Roesler had in particular been instrumental in the draft-
ing of the Meiji Constitution and the Commercial Code. In addition,
the Code of Civil Procedure, the only code to be enacted in 1891
as planned, was following very closely the provisions of its German
counterpart. It made sense, therefore, to rely on German jurispru-
dence also in the re-drafting of the Civil Code, as Tomii Masaaki
had suggested in his criticism of the Old Civil Code.
Another critic of the Old Civil Code and drafter of the new one,
Hozumi Nobushige, had this to say about his experience as a stu-
dent in Germany:
While I was in Germany studying law, I was firmly convinced of two things.
One is the fact that law instruction in Germany is far more advanced
than in any other country and that unless we import German jurisprudence
into this country, we shall never be able to keep ourselves abreast of the world’s
progress in law. The other is that although the German empire was
established only recently, the new civil code which its government pro-
mulgated to unify the law of the federated empire has begun to take
hold, and this German civil code embodies legal principles more up-
to-date than those of the French codes which this country has used
as a model for its laws. In the interest of future progress in legislation, we
must import German jurisprudence.30
In order to explain this fascination with German law, it is necessary
to briefly outline the development of civil law in 19th century Germany.
It is interesting to observe in this process some premonitions of similar
issues being discussed in Meiji Japan.
The German Civil Code (Bürgerliches Gesetzbuch—BGB), a first draft
of which was published in 1887, was the product of the so-called
Pandectist School of jurisprudence dating back to the first half of
the 19th century. One of its founders had been Friedrich Carl v.
Savigny (1779–1861). Savigny, recognized head of the Historical
30
Hozumi Nobushige, “Doitsugaku no Nippon ni Oyoboseru Eikyò”, as quoted
in ibid., p. 204, note 8. The emphasis is Hozumi’s.
184 civil code
School of Law, was firmly convinced that law was a historical prod-
uct of any given civilization. The Historical School placed a heavy
emphasis on customary law as the true expression of law. This in
itself would make it attractive to Japanese jurists seeking to reconcile
pre-modern customary practice with modern statutory law. Savigny’s
main tool in studying law was legal history, in particular the study
of written law from which he tried to derive the general principle
of law. The Pandectist School arose out of the systematic study of
Roman law. Its aim was to draw out the essence of the Roman
codes, and using an inductive method to arrive at an abstract legal
and institutional system that was logically coherent. As a result, law
could be applied schematically without any recourse to ethical, eco-
nomic or other consideration. This was for the most part a strictly
academic exercise.
An important part of such an analysis was of course the definition of
all terms and concepts that were being used in a given legal system.
It is therefore not surprising to find that in the Civil Code draft pro-
duced in Germany by a commission under the leadership of an out-
spoken pandectist in 1887 should start with a book entitled “General
Part”. This book was designed to explain basic institutions that were
common to all of private law. Following this there are four books
devoted to “Obligations”, “Property”, “Family”, and “Succession”,
respectively. The “General Part” defines all terms, which are then
used in exactly the same way throughout the rest of the code, result-
ing in a code that is designed for professionals rather than the aver-
age citizen, a “legal calculating machine par excellence”.31 Interestingly
enough, upon its publication the first draft of the BGB faced seri-
ous criticism as well, albeit of a different and not as emotionally
charged kind than the Japanese Civil Code several years later.
The Pandectist system as an outgrowth of the Historical School
of law had caught the interest of Japanese jurists and scholars of law
for a variety of reasons. As mentioned above, the emphasis on the
validity of customary law was one reason, although a tendency to
rely increasingly on positive law was of course also noted. Hozumi
Nobushige’s comment reveals a deeply felt respect for the scientific
character of the pandectist system.32 An increasing number of jurists
31
Zweigert/Kötz, p. 145.
32
It should also be noted, however, that Hozumi’s comments were made years
after the New Civil Code had been enacted.
in Japan believed that the German civil law system represented the
highest possible level of legal development the Western world had
to offer. In the early years of the Meiji era when the initial deci-
sion to draft a civil code had been made, the code civil was widely
praised as the most comprehensive and advanced code on the con-
tinent. By 1890, the German Civil Code had replaced the code civil
in the minds of many scholars in Europe as well as in Japan as the
most sophisticated codification to date.
Although there was some interest in German jurisprudence in
scholarly circles in Japan, it was only in 1887 (curiously, the year
of the publication of the first BGB draft) that a chair for the study
of German law was established at the University of Tokyo. There
had been a trend at the university to move away from the hereto-
fore exclusive reliance on Anglo-American law since the early 1880s.33
The above mentioned Hermann Roesler had been in Japan since
1878. Of the Japanese students of law in Germany the most note-
worthy are without doubt Hozumi Nobushige, his brother Hozumi
Yatsuka, and Ume Kenjirò (1860–1910), one of the proponents of
the Old Civil Code. Ume, whose doctorate in law was from the
University of Lyon, and Hozumi Nobushige would later be instru-
mental in the drafting of the New Civil Code.
Despite the significant growth in the interest in German law discern-
ible in Japan since the early 1880s it would be a gross overstatement
to assume that German jurisprudence was dominant in academic or
legislative matters at the high point of the Civil Code controversy
in 1892. Needless to say, the enactment of the Meiji Constitution in
1889 created a major boost for the reception of German law in
Japan. However, Roesler’s draft of the Old Commercial Code had
done as much if no more than Boissonade’s Old Civil Code to ignite
the codification debate in 1890.
A cursory study of the history of the new civil code might easily
lead to the chronological fallacy of assuming that there was a significant
theory reception under way that promoted the focus on the German
civil code in the 1890s. In fact no such reception took place until
well after the enactment of the codes. Hozumi himself would later
acknowledge that there was no comparative study of law to speak
of in Japan during that time. The interest in the BGB seems to have
33
See Minear, p. 14.
186 civil code
been rather a purely pragmatic and technical one. It was recognized

as the most advanced and sophisticated civil code in Europe, and
that was reason enough to incorporate its structure and ideas into
a revision of the Japanese civil code.
This peculiar “technical” or schematic reception of the German
civil code in Japan is decidedly different from the influence that code
and the pandectist school had on Europe. There the reception, wide-
spread though it was, appears to have been a theory reception first
and foremost. The German model influenced legal theory and doc-
trine more than it did actual codes. In contrast, in Japan a practi-
cal reception of the code was followed by a significant theory reception
in later decades.
3.1.1.6. The New Civil Code

In May of 1892 the Diet decided by a majority vote to postpone
the enforcement of the Civil Code until 1896. An examination com-
mittee under the leadership of Saionji Kinmochi subsequently reviewed
both the Civil and the Commercial Code and its findings reinforced
the decision to delay the enforcement of both codes.
The initiative to revise the draft of the Old Civil Code appears
to have come from Ume Kenjirò who had been a vocal proponent
of the Enforcement Faction. He sent a letter to Prime Minister Itò
Hirobumi (1841–1909) requesting the establishment of a new drafting
committee. In May of 1893 a “Code Examination Council” (Hòten
chòsa kai ) was formally established by Imperial decree with Itò named
as chairman, and Saionji as deputy chairman. The jurists actually
entrusted with the revision of the Civil Code were Hozumi Nobushige,
Tomii Masaaki, and Ume Kenjirò. All were at that time members
of the Faculty of Law at Tokyo Imperial University and had been
active participants in the Civil Code Controversy. In the light of the
fact that the result of their endeavors was modeled after the German
civil code, it is worth mentioning that neither Tomii nor Ume were
known at the time as outright proponents of the German pandec-
tist school. Both had degrees in French law from the University of
Lyon. After earning his doctorate there, Ume spent a year at the
University of Berlin. Hozumi had studied Law in Germany in 1880–81
and had joined the law faculty upon his return to Tokyo. He was
the outstanding scholar of comparative law of his day, a field of
study that was still in its infancy in Japan.
Their task was defined as a revision of the existing draft of the Civil
Code, especially with regard to the many duplications, contradictions
and inconsistencies that had been the focus of particularly Tomii’s
criticism during the codification debate. Since, as mentioned above,
there had been very little in the way of a legal theory reception it
would be a fallacy to assume that there was among the drafters a
preconceived notion to replace a “French” code with a “German” one.
Rather, the plan of action called for a careful deliberation of each
of the five books of the existing draft, article by article. Furthermore,
traditional customary law was to be taken into consideration to the
utmost extent possible. It was also the stated objective of the council
to consider the latest achievements of Western legal science and codifica-
tion. This led by necessity to a closer focus on the pandectist system,
since it was widely recognized as the most “modern” development.
Over the course of a mere three years Hozumi, Tomii, and Ume
accomplished the remarkable feat of producing final drafts of three
books of the code, namely “General Provisions” (sòsoku), “Real Rights”
(bukken), and “Obligations” (saiken). These three books were promul-
gated in 1896. The books on Family Law (shinzoku) and on Inheritance
(sòzoku), being the parts most susceptible to potential criticism, were
completed after further revision by early 1898. The whole Civil Code
officially came into effect on July 16, 1898.
The structure of the New Civil Code followed that of the German
Civil Code (BGB) closely, with the exception that in the former the
order of the books on Real Rights and on Obligations was reversed.34
The most obvious difference from the Old Civil Code was of course
the existence of a book entitled “General Provisions”. This fact alone
was sufficient for many to label the Japanese Civil Code a “carbon
copy” of the BGB. Oddly enough, although this new code was as
“foreign” as the old one had been, no major controversy followed
its promulgation. What did occur was a tremendous increase in inter-
est in German law, culminating in the wide spread belief that “any
law other than German law is not law.”35
In fact the Japanese Civil code is not a simple “carbon copy” of
the BGB, just like Boissonade’s Old Civil Code had not been the
mirror image of the Code civil. It was rather a blend of several different
34
There is reason to believe that the drafters followed the example of the Civil
Code of Saxony in arranging the order of books.
35
For a discussion of this phenomenon in English see Tanaka, pp. 209–213.
188 civil code
legal sources. The process of the revision applied a pandectist system

to the provisions of the Old Civil Code, while at the same time con-
sidering a large number of other foreign codes as well. After all, the
drafters were specialists of French (Ume and Tomii) and English
(Hozumi) law, and Hozumi as the senior council member was inter-
ested in problem of comparative jurisprudence. Moreover, the last
two books of the new code took existing customary law into con-
sideration to a large extent.
Overall the New Civil Code retained much of the French inspired
contents36 of its predecessor while following the pandectist principle
of organization. Does that make the code a member of the “French”
or of the “German” legal family? This question, while of obvious
interest o the comparative jurist,37 should not be the focal point for
the historian of Japanese law. What is important from the point of
legal history is the fact that with the enactment of the Civil Code
in 1898, Japan had adopted a comprehensive legislation based on
the principles of individual rights, freedom of contract, and property.
The first book of the Civil Code, entitled “General Provisions”
(sòzoku), consists of 174 articles and is subdivided into six chapters
covering “Persons”, “Juridical Persons”, “Things”, “Juristic Acts”,
“Periods of Time”, and “Prescription”, respectively. In the following
we will take a closer look at some of the provisions and their history.
3.1.2. General Provisions: Persons (Arts. 1–32)

3.1.2.1. Capacity or Enjoyment of Rights and Capacity of Action
Japanese jurisprudence distinguishes between natural persons (shizen-
jin) and juridical persons (hòjin), the first chapter of the “General
Provisions” deals with natural persons only. A person is considered
to be the subject of rights, in other words, a person should be capa-
ble of exercising rights over property and of enforcing claims against
others. Persons have the capacity to exercise private rights, i.e. the
36
For two specific examples see Kiyoshi Igarashi, Einführung in das Japanische Recht
(Darmstadt; Wissenschaftliche Buchgesellschaft, 1990) p. 5.
37
See for example the passionate argument made by Hoshino Eiichi in his “Nihon
minpòten ni ataeta furansu minpò no eikyò ” (Influence of French Civil Law upon the
Japanese Civil Code) in Nichi-Futsu Hògaku 1, 1965. A partial English translation is
found in Tanaka, pp. 229–235.
capacity of action, or disposing capacity (kòi nòryoku),38 and the capac-

ity of enjoying private rights, usually termed “capacity of rights” (kenri
nòryoku).39 The actual term capacity of rights is absent in the language
of the code itself, Article 1 speaks instead of the “enjoyment of pri-
vate rights” (shiken no kyòyù). The capacity of rights begins with the
completion of the birth40 (Art. 1) and ends at death. With regard to
the capacity of action, the Civil Code stipulated that a person acquires
such full capacity upon reaching age 20 (Art. 3). Persons not pos-
sessing full capacity of action (incapacitated person, munòryokusha) were
minors, incompetent persons (kinjisansha), partially incompetent per-
sons ( jun kinjisansha), and, until the post-war reforms, wives. Incapa-
citated person are either not capable to engage in juristic acts (hòritsu
kòi ),41 in which case such acts are automatically void (Art. 9), or are
only capable to do so with permission of a guardian or legal rep-
resentative (hòtei dairinin).
The Meiji government had begun to lay the groundwork for the
recognition of individual rights in a variety of ways since shortly after
the Restoration. The four status groups that had existed since the
late 16th century, namely warriors, peasants, artisans and merchants,
were abolished, and with the enactment of the conscription law in
January of 1873 the old samurai class had lost its functional status
distinction as well. Peasants obtained the right to have surnames,
and in 1871 the government officially emancipated the outcasts
(burakumin) by designating them “new commoners” (shin seimin). The
first act to limit the sale of humans came in 1870, when a government
edict discouraged the sale of children to Chinese buyers. By 1872
indentured service was tightly regulated and the traffic in humans
as slaves was generally forbidden. A decree issued by the Ministry
of Finance in August of that same year admonished local officials to
put a stop to discriminatory practices against outsiders in village com-
munities, since this was injurious to “harmony amongst the people”.42
There is no evidence of any rights enjoyed by the unborn in either
38
Equivalent to the German “Geschäftsfähigkeit”.
39
“Rechtsfähigkeit”.
40
In cases of claims resulting from claims for damages or inheritance an unborn
child is considered a person.
41
“Rechtsgeschäft”.
42
See Hosokawa Kameichi, Nihon kindai hòseishi (Tokyo: Yùhikaku, 1961),
p. 168.
190 civil code
Edo or early Meiji Japan. Since in many places children were not
registered at the local temple before age 4 or 5, one can assume
that the stipulation of Article 1 of the Civil Code about the enjoyment
of rights at birth was considerably broader than accepted custom. The
age upon which a child attained maturity varied from region to region,
but was not normally lower than 15. Government decree No. 41 of
April 1876 determined twenty years as the age of maturity.43 A minor
had traditionally needed the consent of a guardian to engage in busi-
ness, and the Civil Code confirmed this.
With regard to other categories of people whose capacity of action
was circumscribed, several points deserve mention. First, married women
had traditionally been considered subordinate to their husbands and
unable to conduct business on their own.44 This subordinate position
was confirmed in the criminal code of 1880 and was also incorporated
into the Old Civil Code. The New Civil Code preserved this propo-
sition in the interest of family harmony. Second, there is very little
evidence regarding the treatment of mentally or physically handicapped
people in traditional Japan. The category of incompetents first appears
in the 1880 draft of the Criminal Law. Following accepted Western
practice at the time, both mentally and physically handicapped people
could be found wholly or partially incompetent. Article 11 of the
new Civil Code stated for example that deaf and blind person could
be found to be quasi-incompetent.
3.1.2.2. Domicile and Disappearance

The problem of domicile ( jùsho) of a person has legal significance
insofar as it influences the validity of a variety of legal acts, such as
contracts, marriage and adoption, succession etc. The Civil Code
defines domicile as the place of a person’s livelihood (seikatsu no honkyo).
There is an implied difference between domicile and place of residence
(kyosho) according to Art. 22, which stipulates that the place were a
person resides shall be considered his domicile only if the actual
domicile of the person is unknown. Moreover, the code recognizes
the concept of provisional (temporary) domicile (kari jùsho). The
43
Ibid.
44
It should be noted, however, that in Japan this was a relatively recent devel-
opment, since throughout the Middle Ages women had enjoyed considerable prop-
erty rights independent of men.
temporary domicile is considered the domicile only with regard to

the specific act for which it was set up.
The rigid social order of the Edo period necessitated close control
over the movement of people, not only the social station of an indi-
vidual was fixed, but so was his place of residence. This was especially
important in the countryside where peasants were bound to the land
in a system that has been described as serfdom. Commoners were
usually registered at a local Buddhist temple, partially in order to
enforce laws forbidding the practice of Christianity more easily. Leaving
one’s domicile was considered absconding, individuals were subject
to mandatory return to their place of residence. Another form of
registration was found in the registers of the “Five Men Associations”
( goningumi ), units of five households which were held mutually re-
sponsible for criminal acts committed by any of their members.
The Meiji government abolished both the old system of four status
groups and the goningumi system, thus ridding itself of a reasonably
functioning registration system. Needless to say, the events surrounding
the Meiji Restoration had led to considerable upheaval and some
dislocation of people, especially samurai. The new government con-
sequently issued an edict in August of 1868 ordering samurai to
return to their places of residence. Since such orders were relatively
ineffective due to the lack of consistent enforcement, early Meiji
period criminal legislation included provisions providing for punish-
ments of absconders. Willful absconding thus continued to be viewed
as a criminal act into the early Meiji period.
The official end of the old status system came with the enactment
of the Household Registration Law (Kosekihò ) in 1871. This law pro-
vided for registers to be kept at all localities, and for people to be
registered therein regardless of their former status. Starting from
1875, marriages, adoptions, and divorces had to be registered in
order for them to be considered legally valid. The Old Civil Code
recognized the place of registration as the domicile even in cases
where the person’s livelihood was located elsewhere.
In the early Meiji period the problem of disappearance (shissò )45 was
not separated from the criminal offense of absconding. Criminal law
prescribed punishments for people who left their domicile until 1877,
while the Household Registration Law mandated that disappeared
persons be searched for by their kin. Disappearance was not treated
45
See Ishii (note 26), pp. 607–608.
192 civil code
as a matter of private law, searching for disappeared persons became

an official investigative act. The procedure, closely linked to the tra-
ditional treatment of absconders, was abolished in 1878.
The Civil Code devotes Articles 25–32 to the problem of disap-
pearance. The problem is a significant one for matters of property
management and inheritance. Upon the petition of an interested per-
son (rigai kankeinin) a court may deem a person to have died if that
person has not been heard from for seven years, less in cases of war
or natural or other disasters. Before such a decision is made man-
agers to the property of the missing person may be appointed by
the court at the request of an interested party. Should a person reap-
pear after having been declared dead, the declaration of death issued
by the court can be revoked at that person’s request. The same is
true if the person is found to have died at a different time than that
determined by the court, in which case an interested person can
demand the revocation of the court’s earlier ruling. Legal acts done
in good faith (zen’i o motte nashitaru kòi ) will not be affected by such
revocation, though restitution of property is required from a person
having profited from the earlier declaration of death. There has been
some discussion about the extent to which the remarriage of a spouse
is covered by this provision.
3.1.3. Juridical Persons (Arts. 33–84)
A juridical person (hòjin) is any entity that has the capacity of possessing
rights but is not a human being. Civil law distinguishes between
public juridical persons, generally establishments for public purposes
(administrative divisions, schools, hospitals etc.), and private juridical
persons, private entities created to either earn profits or to promote
certain public interests. The Civil Code recognizes two different kinds
of private juridical persons, namely associations (shadan)46 and foun-
dations (zaidan).47 The theoretical difference between the two categories48
is of no consequence for the provisions of the Civil Code. The
important differentiation is between a for-profit and a not-for-profit
46
Equivalent to the German “Verein”.
47
“Stiftung”.
48
An association denotes an aggregate of persons, while a foundation is consid-
ered an aggregate of property.
association. The former, being deemed a commercial association is

subject to the provision of the Commercial Code, while the latter is
covered in this section of the Civil Code. The law only recognizes
charitable foundations. Associations or foundations that do not have
charitable or commercial purposes are not recognized as juridical
persons.
Juridical persons enjoy the capacity of rights and the capacity of
action within the scope of their objectives as stated in their by-laws
(Art. 43). Likewise, a juridical person is liable for damages to oth-
ers inflicted by its agents while acting in discharge of their functions
(Art. 44). In order to be deemed a juridical person and to legally
act in this capacity, an association or foundation is required to be
registered with the competent authorities. The domicile of a juridical
person is its principal office. No foreign juridical persons are recognized
by the Japanese Civil Code, with the exception of states, administrative
divisions of states and commercial companies (Art. 36). A juridical
person ceases to exist when it is dissolved in accordance to its bylaws,
as consequence of bankruptcy, or by the revocation of its registra-
tion (Art. 68).
The Civil Code treats the phenomenon of a juridical person in
remarkable detail. No less than 16 articles deal with the management
of a juridical person alone. In contrast, the Old Civil Code devoted
a total of only two articles to the problem of juridical persons, stat-
ing that a juridical person had to be registered and was required to
follow the law in order to have the capacity for rights and actions.49
Over the course of the Meiji period the concept of a juridical per-
son crystallized in mostly in judicial practice. Corporate entities had of
course existed during the Edo period and before. The most significant
of those entities was without doubt the village (mura).50 Rights of the
village community over common land were generally recognized, and
the village community had thus, to use an anachronistic term, a cer-
tain capacity for rights. Moreover, villages discharged their duties as
a unit as well. Villages could be held collectively responsible for crim-
inal acts committed by members of the village community.
Although the Meiji Restoration changed this situation considerably,
villages continued to be recognized as administrative units. With the
49
See Ishii (note 26), p. 609.
50
For commercial enterprises please refer to the section on Commercial law,
below.
194 civil code
election of elders and representatives, villages became even closer in

character to juridical associations. The Supreme Court recognized
in a 1885 decision the right of villages to sue each other and thus
confirmed their practical standing as juridical persons.51
Another category of institutions that enjoyed quasi-juridical per-
son status in pre-modern Japan were temples and shrines, which also
functioned as corporate entities. As landowning entities they enjoyed
rights of acquisition and disposal. This aspect would have mandated
their inclusion the category of associations in a modern civil law sys-
tem. On the other hand, religious institutions would have to be con-
sidered foundations by virtue of the fact that they are not profit
oriented. A court decision of 1885 regarding a temple’s rights over
land described the temple as an “incorporeal human entity” (mukei
jintai ), capable of performing acts and engaging in business.52
There was thus a tradition recognizing rights, obligations and lia-
bilities (criminal and civil) of non-human actors before the detailed
guidelines of the Civil Code came into force.
3.1.4. Things (Arts. 85–89)
A thing (mono) as defined by civil law is the object of a right (kenri

no mokuteki ). The Japanese Civil Code recognizes only material things
( yùtaibutsu). Although various other ways of classifying things are rec-
ognized in legal scholarship, the Civil Code distinguishes only between
immovables ( fudòsan) and movables (dòsan), and between principal
things (shubutsu) and accessory things ( jùbutsu). All things other than
land and things connected to land are considered movables, includ-
ing obligations to bearer (Art. 86). An accessory thing must be
attached by the same owner to the principal thing for the purpose
of making use of the principal thing. If that is the case, it is auto-
matically deemed to be subject to the disposition of the principal
thing (Art. 87). The code also distinguishes between natural fruits
(tennen kajitsu) and legal fruits (hòtei kajitsu), i.e. interest etc.
The treatment of things in the Japanese Civil Code follows the
German example very closely, without providing as detailed a descrip-
tion. This was perhaps a reaction to the overly detailed treatment
51
See Hosokawa (note 42), p. 170.
52
Ibid.
of things in the Old Civil Code. The Old Civil Code had also pro-
vided a category for incorporeal things that had come under some
criticism during the codification debate.
An abstract legal category for things does not appear to have
existed in traditional Japan. The first attempt to classify things into
movables and immovables was made as early as 1872, and in early
1873 a proclamation by the Ministry of Justice defined movables as
“money, clothing, furniture and similar things that can be carried
about,” and immovables as “land, buildings and similar things that
cannot be carried about.”53
3.1.5. Juristic Acts (Arts. 90–137)

3.1.5.1. General Provisions
The Japanese Civil Code adopted by and large the German concept
of the “juristic act” (Rechtsgeschäft), without, however, copying the struc-
ture of the German Civil Code or providing the same amount of
detail. In particular, there is no specific section on contracts in the
first book of the Japanese code. Juristic acts (hòritsu kòi ) are generally
defined as acts that have been made intentionally and result in the
acquisition or loss of a private right. They are juristic insofar as they
are recognized by private law. The most important component of the
concept of the juristic act is the intention that is being expressed by
the parties. Consequently, the code deals with this problem extensively.
The code generally distinguishes between unilateral, or individual,
acts (tandoku kòi ) and bilateral acts, or “contracts” (keiyaku). The bulk
of the provisions in the section under consideration deal with the
latter. According to the provisions of the code most juristic acts are
informal, i.e. there are no stipulations as to specific forms that would
make a juristic act valid or the absence of which would void such
an act.
Only three articles (90–92) deal with general provisions of juristic
acts and their interpretation, however, they are reflective of the inten-
tions of the drafters to rely on customary law whenever possible.
The code stipulates that juristic acts that violate public order are
void. On the other hand, the intentions of the parties have priority
53
Proclamation #9 of January 13, 1873, as quoted in ibid., p. 171.
196 civil code
over provisions of law unrelated to public order (Art. 91), and in

case custom differs from statutory law parties may choose to follow
that custom rather than statute (Art. 92).
Over the course of the early Meiji period the concept of “good
custom” changed considerably. A case in point was the effective
criminalization of such practices as long-term indentured service, the
pledging of humans as collateral for loans or the outright sale of
human beings, especially children. Government edicts forbidding such
practices in effect voided all contracts containing provisions of that
kind as “unethical”. In other words, parties were not bound by a
contract whose effect would be in violation of good morals as defined
by the state. By issuing such edicts the government effectively removed
such institutions as indentured service and debt “slavery” from the
sphere of private law and made them the subject of public law.
Customary law played a tremendous role in early Meiji judicial
practice. The Ministry of Justice issued a series of regulations and
directives over the course of the 1870s specifying the meaning and
usage of “custom” (kanrei, kanshù). Generally, custom was recognized
as an important source of law, albeit a supplementary one. Custom
was followed in the absence of written law, but it did not supersede
written law. The provisions of the Civil Code go considerably fur-
ther by allowing the intention of the parties to override written statute
(as long as public law was not violated) and to follow customary law
instead. On one hand these provisions were reflective of the huge
role that intention plays in the general theory of juristic acts. On
the other, in allowing custom to override statute they were echoing
the tradition of both the Historical School of Law imported from
Europe and of premodern Japanese legal practice.
3.1.5.2. Expression of Intention (ishi hyòshi)

Following the German lead the Japanese Civil Code pays consider-
able attention to the question of intention in its treatment of juristic
acts. The expression of intention is the main part of the juristic act,
or one could even say it is the juristic act, insofar as it is made in
order to have an effect under private law. The code does not define
the expression of intention itself, nor does it stipulate that such an
expression take any specific form. Rather, it assumes all declarations
of intention to be valid except in cases when the expression is actu-
ally at variance with the intention. In particular, an expression of
intention that was made without it being the true intention (mental
reservation) is valid unless the other party had reason to know the
true intention (Art. 93). A fictitious expression of intention made with
the other party’s consent is invalid, however, a third party acting in
good faith (zen’i no daisansha) is not affected by its invalidity (Art. 94).
Another cause of invalidity of an expression of intention is mistake
about the character of the juristic act, but not in case of gross neg-
ligence (Art. 95). Furthermore, fraud and compulsion are considered
sufficient cause for the annulment of an expression of intention. A
third party acting in good faith is protected in cases of fraud, but
no in cases of compulsion (Art. 96).
An emphasis on the freedom of contracting parties and on the
true intention in juristic acts under dispute is discernible throughout
the early Meiji period. Agreements of all kinds had traditionally been
made without resorting to formal instruments, and although the prob-
lem of intention had not been classified as such it did play a significant
role in everyday business practice. However, starting as early as 1870,
the Meiji government issued a slew of regulations specifying the forms
of contracts, the kinds of seals and signatures to be affixed to them
etc. This was evidently an early reaction to perceived Western practice,
since the first regulation applied specifically to contracts concluded
with foreigners in treaty ports. In a memorandum the Ministry of
Justice send to the president of the Right Chamber in June of 1877
the desire for a regulation to interpret contracts “in the spirit of
French Law” was stated. Such a document was circulated a month
later.54 It stressed the importance of considering the parties’ intention
over a literal interpretation of the terms of the contract.55 The Old
Civil Code had contained a multitude of provisions dealing with a
discord between intention and expression. In the cases of fictitious
declarations, mistakes, and fraud and duress provisions of the Old
Civil Code were simplified. However, the old code had no provision
for mental reservation.
This particular article was taken from the BGB, together with the
general order of provisions in this section. The drafters decided to
follow the BGB also in providing that a declaration of intention
given over distance took effect upon reaching its destination, rather
than upon being made by the sender (Art. 97).
54
See Hosokawa (note 42), pp. 173–174.
55
For an English translation of this document see Ishii (note 26), pp. 611–612.
198 civil code
3.1.5.3. Representation (dairi)

Acting through representatives (dairinin) in business dealings had been
commonplace in traditional Japan and continued to be of impor-
tance in the Meiji period and beyond. The Civil Code, by and large
following the provisions of the BGB, devotes a significant part of the
chapter on juristic acts to the problem of representation. A principal
is generally bound by the expression of intention made by a repre-
sentative acting within his authority (Art. 99). The code distinguishes
between legal representatives (hòtei dairinin), e.g. guardians, and rep-
resentatives by mandate (inin dairinin). The former have the right to
appoint substitute representatives upon their own responsibility (Art.
106), while the latter can do so only with the consent of the principal
(Art. 105). Representatives need not have full legal capacity (Art. 102).
Legal acts performed without power of representation or in excess
of the scope of that power are not binding on the principal (Art. 113),
unless the principal made a declaration about having given another
the power of representation to a third person (Art. 109). In cases of
such unauthorized representation the principal normally has the dis-
cretion to ratify or not ratify the transaction. However, parties act-
ing in good faith are protected in cases of fictitious representation.
The history of the institution of legal representatives in the Meiji
period suggests that from early on the appointment of a representative
was considered a bilateral legal act rather than a unilateral one. On
June 18, 1873, the Meiji government issued Edict #215 concerning
representatives. Given the fact that at this early stage such actions
by the government were reactive rather than proactive, one can eas-
ily draw the conclusion that usage of representatives was common-
place in business dealings. The edict clarified the meaning of “principal”
and “representative”, both had to be of sound mind and had to be
adults in order to enter such a relationship. A distinction was made
between general representation and partial representation. Furthermore,
a representative had to have a written power of attorney stating the
exact scope of his authority in order to conclude contracts, though
not for the conduct of ordinary business at the principal’s office.56
The Civil Code simplified matters considerably, and it did so by
concentrating on the relationship between the principal and a third
person, rather than on the relationship between principal and
representative.
56
See Hosokawa, p. 172 for a summary of the provisions.
3.1.5.4. Void and Avoidable Acts (mukò oyobi torikeshi)

In contrast to the German Civil Code that covers void and avoidable
acts as part of the section on Expression of Intention, the Japanese
Civil Code devotes a separate section to this question. Void acts do
not have a legal existence. Consequently, no action is required in
regard to such acts and no expression of intention or ratification will
make such an act valid (Arts. 119, 124). Avoidable acts, however, do
require the act of an annulment to be considered legally invalid. Article
120 stipulates that a defective intention of expression due to incapacity
makes a juristic act avoidable. As we have seen in the section on
expression of intention, in cases of fraud or compulsion a juristic act
is also avoidable. According to the provisions originally set forth in
Articles 120 and 124, a husband could void juristic acts of his wife.
This stipulation is reflective of the fact that wives were considered
partially incapacitated in accordance with Article 14 of the code.
Legal rights of married women, especially with regard to the man-
agement and disposition of property had been increasingly limited
since the Muromachi period (1336–1573). During the Edo period this
tendency became even more noticeable, and by the time of the Meiji
Restoration, married women had essentially lost the right to conduct
business on their own. The drafters of the code, taking into con-
sideration customary law, decided to include these provisions to fore-
stall criticism that the code was designed to erode traditional morals
and the family system.
3.1.5.5. Conditions and Time Limits ( jòken oyobi kiken)

In its treatment of conditions and time limits the Japanese Civil Code
follows the basic provisions of the German BGB, however, the pro-
visions of the Japanese code cover considerably greater detail. A con-
dition is defined as “an incidental expression of intention included
in a juristic act which causes the validity thereof to depend upon
the happening of a subjective uncertain fact”.57 Generally, the code
distinguishes between conditions precedent (teishi jòken), which cause
a juristic act to become valid, and conditions subsequent (kaijo jòken),
which cause the avoidance of such an act (Arts. 127, 132). Juristic
Quoted in J.E. de Becker, Annotated Civil Code of Japan (London: Butterworth

57
& Co, 1909), p. 130.

200 civil code
acts subject to either unlawful conditions ( fuhò jòken) or impossible

conditions ( funò jòken) are void by definition, since in the first case
such an act would violate public law, while in the second a defec-
tive expression of intention would have to be assumed (Arts. 132
and 133, respectively). In cases of pending conditions (mihatsu jòken),
i.e. conditions in which the event has not yet happened, parties may
dispose of their rights and obligations (Art. 129), without, however,
impairing the advantages of the other party (Art. 128).
Time limits are, in a way, specific conditions relating to the time
at which a juristic act becomes effective or void. In contrast to the
Old Civil Code, the New Civil Code determined that a debtor could
not claim the benefit of time limits when he was declared bankrupt
(Art. 137).
Evidence is scant with regard to the use of time limits and conditions
in contracts of the early Meiji period. However, in conjunction with
the issuance of regulations governing the forms of contracts and seals
mentioned above, the Meiji government also issued directives regard-
ing the use of dates in contracts. Specifically, Edict #212, issued in
1873 made the use of the year/month/day formula mandatory and
stipulated that documents with abbreviated dates, i.e. without indicating
the day, were not to be considered as evidence in court proceedings.58
3.1.6. Periods of Time (Arts. 138–143)
Chapter 5 of the book on General Provisions follows in its computa-

tion of periods of time (kikan) by and large the German model. Periods
of time calculated in hours commence immediately (Art. 139), while
in the case of periods of time fixed by days, weeks, months, or years
the first day is not counted (Art. 140). The code intends to define
periods of time in general, other codes do, however, contain their
own provisions about time periods. The most important function of
time periods with regard to the provisions of this book is perhaps
seen in the chapter on Prescription (see below). In addition, the com-
putation of time periods is of course significant for such acts as avoid-
ance and ratification. Periods of time matured at the last day of the
period specified.
58
See Hosokawa (note 42), p. 174.
The Gregorian calendar was officially introduced in Japan on

January 1, 1873. Traditionally, years had been calculated according
to a lunar calendar, with years usually identified either by the
sexagenary cycle or by era names (nengò). Interestingly enough, changes
in era names became effective immediately, not with the start of the
new year. Lunar months were 29 or 30 days in length, thus an addi-
tional intercalary month had to be added every few years. An unofficial
solar calendar was also in use, mostly to calculate agricultural seasons.
The most important innovation was the introduction of the concept
of a seven-day week, since no such subdivision of the month had
been in use previously. The Civil code copied the provisions about
not letting a time period mature on a Sunday as a matter of course,
but added, almost as an afterthought, that this provision applied only
in cases when it was customary not to do business on such a day
(Art. 142).
With regards to times of day, the Meiji era brought important
changes as well, introducing the 24-hour day for the first time.
Traditionally, times of day had been computed by using the 12
branches of the hexagenary cycle, reserving half for daytime, and
half for nighttime. There were thus no fixed-length hours.
Business dealings with foreign merchants brought such very fun-
damental discrepancies to the attention of legislators. The inclusion
of these provisions in the New Civil Code and other laws in a way
completed the transition from the traditional system of counting time
and computing time periods.
3.1.7. Prescription (Arts. 144–174a)
The New Civil Code, following the example of the German BGB, con-
sidered the problem of prescription ( jikò ) in a separate chapter of
the Book on General Provisions. The Old Civil Code had included
prescription in the book on evidence, since it was viewed there as
a legal presumption which was considered a form of evidence.59 The
new code covers in this section two kinds of prescription. These are
extinctive prescription, i.e. the extinction of rights after they have
not been exercised for a stipulated period of time, and acquisitive
59
Ishii (note 26), p. 614.
202 civil code
prescription, i.e. the acquisition of rights after a specified period of

time in which the acquirer is in possession of the object of this right.
Not only obligations, but also rights, including property rights are
subject to prescription. However, property rights are extinguished
only by virtue of the fact that another person who was in posses-
sion of the property over a specified period of time claims acquisi-
tive prescription after the specified time period elapsed.
The code does not specify a general time period for prescription
like the BGB, however, obligations are extinguished after 10 years
and property rights after 20 years (Art. 167). Articles 168–174a cover
a number of cases in which the time period for prescription is con-
siderably shortened. These include everyday business transactions of
various kinds.
Prescription generally means that a right has been extinguished,
however, the court may not base a judgment on prescription with-
out it being claimed by an interested party (Art. 145). On the other
hand, a transfer of rights as a result of prescription is valid without
court intervention The code specifies a variety of causes for the inter-
ruption and for the suspension of prescription. Causes for interruption
include demand, attachment and acknowledgment (Art. 147), while
causes for suspension are incompetence of the affected person (Art.
158), inheritance (Art. 160) and natural calamities (Art. 161). The
time period of prescription starts with the moment when the right
in question could have been exercised (Art. 166).
Many of the provisions set forth in the New Civil Code were
already found in the Old Civil Code of 1890. However, in the old
code had stipulated different time periods and had only provided for
extinctive prescription in the case of obligations.60
Over the course of the Meiji period edicts concerning time limits
had mostly dealt with procedural matters. In particular, the question
of when a suit could be brought was the subject of several regulations.
For example, a time limit on bringing suits regarding short term
loans was first set in 1873. A memorandum sent by the Ministry of
Justice to the Grand Council of state explained the reasoning behind
such rules thus:
In case of a loan the lender has no right of recovery within the time
period stated in the loan agreement. The borrower may freely use the
funds. The right of the lender to collect commences when the loan
60
See ibid., p. 615.
matures. Should the lender fail to try to collect for ten years from the
moment of maturity, the law recognizes the borrower as the rightful
owner and the lender as having relinquished his right. On this basis
the time limit for bringing a suit in such matter has been decided on.61
Stipulations in the New Civil Code about different periods of pre-
scription for different kinds of transactions were also reminiscent of
similar regulations issued as early as 1874. However, it should be
pointed out that the aim of such regulations in the early Meiji years
was first and foremost procedural and obviously intended to lighten
the case load courts were facing. The drafters of the Civil Code, on
the other hand, could claim to include such stipulation with the
intent of protecting rights and promoting security for transaction by
eliminating uncertainty over questions of ownership.
3.1.8. The Civil Code in the 20th Century
After the enactment of the Civil Code in 1898 changes in the legal and
business environment necessitated small changes in several of the
provision that had, however, no significant impact on the overall
character and quality of the code. Perhaps the biggest change affecting
the code was brought about by the defeat of Japan in World War
II and the subsequent American Occupation. This brought with it
a number of reforms that would affect some of the rules set forth
in the Book on General Provisions of the Civil Code. In particular,
Article 14 of the 1947 Constitution which stipulated the equality of
all people and prohibited discrimination based on race, creed, sex,
social status or family origin rendered some provisions of the Civil
Code obsolete. Consequently Law #222 was enacted in 1947 in order
to amend the code accordingly. Some of the most noteworthy changes
of the Book on General Provision shall be briefly noted here.
The code now begins with a statement of General Principles (Kihon
gensoku), designated Article 1a. They read:
Individual rights are secondary to public welfare.
The exercise of rights and the fulfillment of obligations should be
conducted in good faith.
Abuse of rights is not permitted.62
61
Quoted in Hosokawa (note 42), p. 175.
62
For the text see Pokketo Roppò (Tokyo Yuikaku, 1996), p. 289. Translation my own.
204 civil code
These principles did have a significant impact on the judicial prac-

tice in postwar Japan.
A more immediate impact on the structure of the first book of
the code had the stipulation that was added at the same time and
became Article 1b. Entitled “Principles of Interpretation”, this article
stipulates:
This code shall be interpreted on the basis of the dignity of the indi-
vidual and the fundamental equality between the sexes.
Needless to say, this provision had a significant impact, especially on
those provisions in the general section that the drafters of the code had
included in order to “reflect Japanese custom”. It was now impos-
sible to accord married women the status of quasi-incapacity and to
accord their husbands powers approaching those of guardianship.
Consequently, Articles 14–18 of the code that had rendered married
women incapable of conducting business on their own were stricken
from the code. Also affected were Articles 19, 120, 124, and 159 that
had been treating married women as quasi-incapacitated. These arti-
cles were amended accordingly to reflect the provision of Article 1b.
Overall, however, the Book on “General Provisions” of the Japanese
Civil Code has proven to be a remarkable achievement of legal
scholarship and legislative genius. Promulgated first in 1896 it remains
in force largely unaltered in form and substance to the present day.
property law—real rights 205
3.2 Property Law—Real Rights
Hans Peter Marutschke
1. Preliminary
During the Edo Period, the enjoyment, of private rights was rather
restricted, depending on the individual’s personal status or rank,
which itself varied in many degrees. It was thirty years after the
Meiji Restoration, in 1898, that the New Civil Code guaranteed the
enjoyment of private rights in principle to all persons by virtue of
birth. One of the most striking unequal “legal” treatments of that
time was, for instance, the restriction of the legal capacity of mar-
ried women. Since that time a radical change in the awareness of
private rights has taken place, which has been prepared and accom-
panied by Government Ordinances.
Some of these concerned the concept of real rights, which was,
for instance, influenced by the 1870 government’s directive to the
local authorities to suppress the sale of Japanese children to Chinese
buyers, or by the prohibition in 1875 of giving individuals as secu-
rity for loans. These examples indicate already a part of the status
of real rights—especially property law—not only within the modern
legal orders. Rarely is any other field of law so intensively connected
with questions of political system, social justice and economic power.
This fact prompted Blackstone about 200 years ago, “There is noth-
ing which so generally strikes the imagination, and engages the
affections of mankind, as the rights of property. . . And yet there are
very few that will give themselves the trouble to consider the origi-
nal and foundation of this right.”1 Japan is no exception in this con-
text: the process of modernization has—at least during the first two
decades after the Restoration—been dominated by political and eco-
nomic measures concerning property through Land Tax Reform.2
Although we are treating here a matter of civil law, it is neces-
sary to give a short overview of certain fundamental measures of the
1
W. Blackstone: Commentaries on the Laws of England, vol. 2, p. 2.
2
For the most diligent research on this subject refer to M. Fukushima: chisòkai-
sei no kenkyù (Studies on Land Tax Reform), 1970.
206 civil code
new government, which belong to the fields of public law, politics

and economics, because they had a strong impact on the concep-
tional change of real rights.
As mentioned already in Steenstrup’s “Japan—legal history until
1868”, land had been bestowed during the Edo Period by the
Tokugawa shogunate as fiefs upon Daimyò, who collected dues or
taxes in kind from farmers in exchange for the right of land use.3
The concept of landownership, however, was not exclusive but ambigu-
ous and overlapping. This led to quite unequal and uncertain tax-
burden relationships and social unrest.
The Meiji Government saw that it would have to clarify the con-
fusion in Tokugawa’s landholding customs by establishing single own-
ership and tax liability for a given piece of land. The first step in
this direction had already been taken on December 18, 1868, with
the ordinance No. 1096 recognizing farmers’ landownership on a
legal basis, introducing, on the one hand—as a new legal concept—
the principle of free disposition of landed property, including sale,
officially replacing the Tokugawa Law of 1643 on the prohibition
of buying and selling land (officially by ordinance No. 50 from 1872),
on the other hand, while linking tax liability with private ownership.
All the clans had already, in 1871, volunteered to return their ‘prop-
erty’ rights on domains to the Emperor, completely abolishing the
ancient feudal system of landholding. The following year, a notification
as to the classification of land was promulgated, whereby it was
divided into two classes called ‘public lands’ and ‘private lands’, but
soon after that the notion ‘private’ was changed to ‘people’s land’.
In 1875 the names of landowners were inscribed on the title deeds,
which had already been issued three years before. In the formula of
these title deeds it was noted that everyone in the Japanese Empire
who owned land ought to have a title deed. Although the Civil Code
did not yet exist, the title deed could be regarded as the owner’s
property title in private law. Whereas the privatization of land could
be obtained in Europe only by means of weapons, in Japan the sub-
ordination of land under the uniform administration of the govern-
ment and its subsequent bestowal upon the people was smoothly
3
C. Steenstrup: A History of Law in Japan until 1868 (1991), pp. 117, 139.
accomplished through voluntary renunciation by the different clans.

Despite problems relating to the inequality of landholding etc., the
Land Tax Reform was successful in providing the national govern-
ment with a solid financial basis. Before 1887 more than 60 percent
of the nation’s revenue derived from taxes. The reform also supplied
the institutional means of diverting the wealth of rich farmers from
agriculture into other sectors of the economy. Land could be mort-
gaged as private property, furnishing valuable capital for industrial
enterprises. These social and economic circumstances had to be taken
into consideration during the preparations to introduce a Civil Code
in Japan, which had, of course, to be prepared in conformity with
the provisions of the Meiji Constitution.
2. Concept of property-right in Japanese Constitutions
The Meiji Constitution, promulgated on February 11, 1889, had

been elaborated, as mentioned already, with the essential influence
of the German legal advisor Hermann Roesler, who was himself
referring to the Imperial Constitution of Prussia of 1850. The prin-
cipal guarantee of liberty rights to the people, giving a certain degree
of protection against state intervention, was used in Prussia as well
as afterwards in Japan to suppress movements for liberal rights.
Under the Meiji Constitution property was already protected. After
emphasising State’s sovereignty, the Preamble said:
‘We now declare to respect and protect the security of the rights and
of the property of Our people, and to secure to them the complete
enjoyment of the same, with the extent of the provisions of the present
Constitution and of the law.’ And Article 27 provided, that ‘the right
of property of every Japanese subject shall remain inviolate. Measures
necessary to be taken for the public benefit shall be provided by law.’
The close relation of this formulation to Article 9 of the Prussian Consti-
tution is obvious, from its conception the regulation of this article
conforms with the constitutions of the 18th and 19th century in
Europe and the US, which already guaranteed property as a nat-
ural fundamental right, with respect to the idea that property was
indispensable for freedom and independence of the individual. The
big difference, however, was that the notion of freedom rights in
those constitutions had been the result of struggles of the people
208 civil code
fighting for it, whereas in Japan the main reason for introducing this
fundamental right was not the people’s demand for it, but merely
political calculation: the revision of the so-called Unfair Treaties 4
could only be achieved by adopting a legal system based on these
principles. This position is made clear in the Commentaries of Itò
Hirobumi, who had elaborated the final draft of the Meiji Constitution.
Concerning Article 27, he pointed out that property was subject to
the sovereignty of the state. Referring to some examples concerning
Construction and Mining Law, he stressed the view that property
rights should of course be inviolable, but that it should be taken for
granted that these rights could be restricted: ‘. . . the property of indi-
viduals, like their persons, is under an obligation of obedience to the
power of the State. The right of property is one that falls within the
domain of private law, and is not in conflict with the supreme right
of governing the country, which belongs to the sphere of public
law. . . . When it is necessitated by public benefit, private individu-
als may be compelled nolens volens to part with their property, in
order that the requirements of a given ease may be met. This pro-
vision is based upon the right of sovereignty . . .’5
Property could be interpreted, therefore, as having been issued to
the people ‘by ordinance’, as, for example, in the proclamation of
December 1868 which stated that from now on village land should
be in the ownership of the farmers, and the division of land into
categories of ‘public’ and ‘private’. These changes were not made
from the perspective of the concept of property as a fundamental
human right.
Although there has been much criticism of the Meiji Constitution
being used to maintain the ‘kokutai ideology’,6 Roesler showed in
his explanatory commentaries that in respect to the possibilities of
restriction of freedom of property rights this idea was essentially
bound to a social conception of freedom:
4
H. Oyama: Jòyaku kaisei (revision of unfair treaties), in Kawashima et al. (ed.),
Nihon kindaihò hattatsushi (History of the development of modern Japanese law), vol.
2, 4th ed. (1988), p. 177f.
5
H. Itò: Commentaries on the Constitution of the Empire of Japan (1889,
Transl. by M. Itò), p. 57.
6
See G. Rahn: Rechtsdenken und Rechtsauffassung in Japan (1990), p. 68 f.;
D. Irokawa: The culture of the Meiji Period (1985), p. 247f. T. Fukase/Y. Higuchi:
Le constitutionalisme et ses problemes au Japon (1984), p. 66f.
The system of property in each state is to be established by law, includ-

ing usage, upon a national basis and within the limits of natural law,
as mentioned above and the excessive accumulation and use of prop-
erty by single individuals, as undermining the natural fundament of
property, should be prevented. Also by the commandments of religion
and morals the benefits of property should be made accessible to indi-
gents, by charity and self-restrain of luxury. From this point of view
the establishment and development of a true national system of prop-
erty is one of the greatest and most difficult legislative problems. The
system of property in Japan has from olden times undergone various
changes. At present it is regulated by the Civil Code according to the
principles of Western jurisprudences, mainly to the effect that all fea-
tures of feudal property have been abolished; so it is now uniformly
accessible freely and equally to all subjects, without any difference of
orders and classes, under the rules of the civil law.
The present article of the Constitution guarantees the inviolability
of the property of subjects as an acquired right and is thereby pro-
tected against any unlawful encroachment by the executive power. But
this does not apply to any changes of the system of property that may
be enacted by the sovereign legislative power by modification of the
civil law, nor to the restrictions of use of property that are or may be
imposed by police and administrative ordinances from various consid-
erations of public interest, as of health, safety, national defence and
prosperity and the like.7
This conception has been influenced by Lorenz von Stein’s idea of
social kingdom, which had a liberal touch but could be adapted to
a conservative political attitude and thus become a principle of the
Meiji constitution with regard to property rights.8
Compared with the present Constitution of 1946, put into effect
on May 3, 1947, the wording of Article 29 is similar to Article 27
of the Meiji Constitution. Indeed the property right is not mentioned
in its Preamble, which stresses instead that the authority of the gov-
ernment is derived from the people, but other than that there is
little difference: ‘The right to own property is inviolable, but prop-
erty rights shall be defined by law, in conformity with the public
welfare’. Individual property is safeguarded in both constitutions, but
the legislature is empowered to restrict property rights by way of
legislation. But what is missing under the regulations of the Meji
7
J. Siemes: Hermann Roesler and the making of the Meiji State (1968) p. 136.
8
Coll. J. Pittau: Political Thought in Early Meiji Japan 1868–1889 (1967), pp.
131f., 157.
210 civil code
Constitution is the reference to Article 29 of the present Constitution,

which provides, in sub-section 3, for compensation if private prop-
erty is used for public purposes. This might indicate, on the one
hand, that in the Meji Constitution the right of sovereignty predomi-
nates over individual rights, while on the other hand, it begs the
question as to how far property rights were protected by the Consti-
tution in force. Given that this Constitution was elaborated under
the supervision of the Supreme Command of the Allied Powers
(SCAP), this question is even more justified, because in the general
clause of Article 31 of the Japanese Constitution the notion ‘prop-
erty’ is omitted, saying only ‘No person shall be deprived of life or
liberty . . .’, whereas the American Constitution specified in its Fifth
Amendment ‘life, liberty and property,’ as generally protected rights.
Of course the definition could be justified by pointing to Article 29
which explicitly protects property rights. But to confirm this attitude
we have to look back to the various drafts of the Japanese Constitution.
Substantially the same guarantees and qualifications of property rights
now included in Article 29 were originally set forth in three sepa-
rate articles of what is frequently referred to as the MacArthur Draft
of the Constitution.9 Thus the guarantees of property rights and per-
sonal liberties which were treated together in the Fifth Amendment
of the American Constitution were deliberately placed in separate
articles in the Japanese Constitution. It must be remembered, how-
ever, that the division between property and personal rights is not
always distinct; the provisions of Articles 22 or 28 can also be regarded
as part of the protection of property rights. Additionally the ‘right
of life, liberty and the pursuit of happiness’ provided in Article 13
could be mentioned in this context, suggesting that the omission of
the word ‘property’ from Article 31 was not intended to deprive
property interests of substantial measures of constitutional protection.10
9
See W. Röhl: Die Japanische Verfassung (1963), 159f.
10
N. Ukai/N. Nathan: Protection of Property Rights and due process of law in
the Japanese constitution, Washington Law Review vol. 43 (1968), p. 1133.
3. Ideas of property and real rights in the old Japanese Civil Code
As previously mentioned, the French law professor Boissonade had

been invited in 1878 by the Japanese government to prepare a
Japanese civil code. His draft, presented in 1891, contains regula-
tions concerning the right of property, in Art. 31: property was
defined as the natural right to use, enjoy or dispose of things. This
defined the concept of property introduced by the Land Tax Reform.
But it should not be thought of as an “absolute” right, as Boissonade
made clear in his commentary. He therefore gave the different rights
to use property, such as usufruct, use, habitation and contract of
hiring, a stronger position, presenting them as real rights. Usufruct
was the right to use and enjoy for a limited period of time the profits
of a thing that belonged to another; use was the right of usufruct
limited in scope to the needs of the user and his family. Habitation
was the right of a person to live in the house of another without
prejudice to the property. In the New Civil Code, however, these
rights were omitted, apparently on the grounds that they might ren-
der the rights of ownership meaningless and thus be incompatible
with the concept of absolute ownership. Many reasons have been
cited as to why the Boissonade Code was finally rejected. The most
frequent explanation is that it was the result of opposition between
the school of French law and that of English Law, but it seems that
the debate was over ideological rather than legal issues.11 The strength-
ening of property right was a means of strengthening the idea of
economic power as one of the major pillars of modernization of
Japanese society.
4. Real right provisions in the New Civil Code
Comparison of the Old and New Japanese Civil Codes demonstrates

that different categories were used to classify rights, whether real or
personal. But a review of the historical aspects of the development
of rights as titles shows that when the Japanese Civil Code was
11
See Rahn, Rechtsdenken, pp. 95–96; Z. Kitagawa: Rezeption und Fortbildung,
p. 30; concerning Boissonades’ reaction to the critics of his draft see Boissonade:
Les Nouveaux Codes Japonais (1892), p. 15f.
212 civil code
drafted the distinction between ‘real right’ and title deed did not yet
exist, as understood in modern codifications. A clear distinction
between property right and contract could not, therefore, be devel-
oped; the ‘real’ character of a right was understood to be an inde-
pendent right of usufruct, while the title deed did not presuppose
individual free will. Related to this particular understanding of real
rights is the fact that the land-lease or tenancy system became elab-
orated in a much more flexible way than in other modern codifications.
The first three books of the Civil Code were promulgated as Law
No. 89 on April 27, 1886, and books four and five became Law
No. 9 on June 21, 1898. Its structure was established on the basis
of the pandect system of the German Civil Code. The Code was
divided into five books, real rights being covered in the second book
as distinct from the obligatory rights or claims covered in the third
book. Consequently, the only real rights recognized in the new Civil
Code were those that were expressly mentioned in the Code or in
other laws (numerus clausus principle in Article 175).
On the other hand, as regards the concept of real rights, the
influence of French law became obvious. As in the French Civil
Code, the creation and transfer of a real right were to take effect
simply through the declaration of will of the person concerned. This
principle of the domination of will (volonté ) was valid not only in
relation to movables, but also to immovables. To make this principle
work in economic exchange, it was provided, that for immovable
property, registration, and for movable goods, delivery, were the pri-
mary considerations in a dispute with a third party. Thus the
acquisition, or loss, or alteration of a real right could only be dis-
puted with a third party if the property had been registered accord-
ing to the Registration Law (Art. 177 Civil Code). The transfer of
a real right in movable goods could only be made to a third party
when the goods had been delivered (Art. 178). These provisions of
Art. 177 and 178 provoked many theoretical and practical problems,
concerning, for instance, the qualification of the third party, of good
faith or the time of transfer, especially in cases where the same thing
was sold to two different persons. So it could occur that a person
who bought a piece of land could not become its owner, because
of the former person who was registered as such. One way of deal-
ing with this kind of problem would have been to invoke the
Registration Law (tòki hò ), which had been introduced as law No. 1
in 1886, at a very early stage in Japanese Meiji legislation, several

years before the New Civil Code took effect.
However, the practice of registration did not work smoothly, because
there was no system of independent, self-responsible notaries, as, for
instance, existed in France, who could maintain effective control over
the registration process. The old endorsing and tally seal procedure
was, however, replaced by a new scheme of registration that was to
be handled by the registration offices, which were placed under the
control of the presidents of the Law Courts. There were three types
of register: for land, buildings and ships, the latter two being rec-
ognized as individually transferable immovable property. The real
rights, subject to registration, were transfer of ownership, pledges,
mortgages and executed mortgages.
As already mentioned, the Registration Law had to be revised in
order to comply with the actual needs of a changing society and
economic structure. The amendment was concurrent with the revi-
sion of the Boissonade Civil Code (kyùminpò ); to distinguish it from
the old law, it was renamed fudòsan tòki hò (Immovable Registration
Law (IRL)) and enforced in 1899. Although the new law introduced
an improved procedure, it could not overcome the structural prob-
lems caused by the Civil Code regulation on the transfer of immov-
able property, on the one hand, and the register system on the other.
I. Revision of the Old Civil Code
1. Possessory rights
The revision of the Old Civil Code affected the section on real rights,
not in its central points already elaborated by Boissonade, but in
the organizational problems caused by the New Code’s adoption of
the pandect system. Possessory rights were, for example, located in the
Old Code between the chapters of servitude and emphyteusis/
superficies, whereas in the New Code they were placed at the begin-
ning of the book of real rights. Legal scholars are still arguing about
the legal character of the possessory right.
On the one hand, the traditional form of Japanese possession of
land (chigyò) and the continued application of traditional Japanese
law is defined as an intermediate to the “possessio” of Roman law
and the “gewere” of German law, whereas possession in the New Civil
Code is regarded as a combination of “possessio” and “gewere”. In the
214 civil code
Old Code possession was classified as legal possession, natural pos-

session or precarious possession, but possession in the New Code
depended on the possessor’s intention; at the same time there was
no doubt that possession had to be looked at as a legal fact and not
as a title. Concerning the effect of a possessory right, this meant first
of all the right to a possessory action. Whereas in the Old Code
these elements were divided, the New Code combined the right of
possessory action with the entitlement to demand prevention of dis-
turbance of possessions or security for damages, covering movable
property as well as immovable.
Differences to the Old Code also concerned the initiation of or
decision on a petitory action, which did not prejudice the filing of or
judgement on a possessory action. Besides the presumption of right,
which was not regulated as strictly as in the Old Code, the New
Code did not request a possession by just title for acquiring fruits
derived from the thing possessed in good faith.
2. Ownership
The new code defined the essence of ownership as the right of freely
using, receiving the profits of (enjoying) and disposing of the thing
owned. Ways of acquiring ownership were prior possession, that
means taking possession of a thing with the intention of owning it,
finding of lost articles, discovery of hidden treasures and adjunction,
mixture or application of workmanship. So far, no rules had been
introduced that differed from those of western legal systems.
But the formulation of Article 206, which subjects the use of the
right of ownership to limitation by laws and ordinances, was the
result of a compromise with the more liberal formulation of the old
Boissonade Code, which was oriented towards the absolute notion
of the right of ownership as expressed in the French Code Civil.12
It will be useful here to focus attention on the issues of joint own-
ership and the transfer of ownership.
Although during the Edo Period there had been different forms
of collective ownership (sòyù), joint right ( gòyù) and joint ownership,
12
The discussion about the formulation of the right of ownership must be seen
in connection with the so called codification dispute, which resulted finally in the
rejection of too much liberalism to be introduced in the revised Code. M. Tomii:
Minpò genron, p. 157f.; Rahn, Rechtsdenken, p. 106f.
the New Code adopted the principles of the Roman Law of joint
ownership and at the same time acknowledged as a rule of custom
the right of common (iriaiken), which was also recognized as having
the nature of joint ownership. This respect for customs was primarily
carried through because the iriaiken itself did not represent a homo-
geneous institution, applicable all over Japan; there were several types
of iriaiken, depending on regional difference, which were too difficult
and diverse to be unified in one or even several binding provisions.
The necessity and adequacy of this decision is proved by the fact
that even today there are special commissions and a long series of
decisions treating problems of iriaiken, which have still not unified
standards in this area.
With respect to the fact that the Japanese right of common has
not yet been dealt with in its legal history context, some additional
explanation is due of its meaning and status, reaching back to the
periods before Meiji. The literal meaning of iriai is “to enter col-
lectively”, iriaiken meant therefore “the right to enter collectively”,
and referred to the collective ownership of non-arable areas like
mountains, including forests, marshes, bamboo groves and riverbeds,
but also offshore fisheries. Villagers, who possessed the iriaiken had
to observe rigid regulations, but were allowed to collect from these
areas wood, edible plants, fertilizers etc. As the extent of the iriaiken
was not linked to the existence of the individual village, but to the
existence of several villages considered as an entity concerning this
right of common, it was jealously guarded by the collective.
There were various types of iriaiken, depending on the classification
of ownership; the most common type was the collective ownership
of, for instance, a mountainous region by the inhabitants of several
neighbouring villages, called mura-mura-iriai.
Although generally considered as a common right, in some regions
iriai-land was owned by the daimyò or shogunal government, or even
by private persons. The conflict with this customary law system was
foreseeable, when modern conceptions of property law were intro-
duced to Japan through the Meiji Restoration, especially with the
recognition of private ownership of land resources and the confer-
ring of land titles to protect the properties of legitimate title hold-
ers. This led to the preferential treatment of those holding any form
of legal documentation, and consequently the rejection of the approved
customary rights of the iriaiken.
216 civil code
Another kind of customary right of similar socio-economic impor-

tance was that of the right to use hot springs (onsen-ken). In com-
parison with the iriaiken, awareness of the economic importance of
this right was slow to develop in terms of using these springs as health
spas and tourist attractions. It was only in 1948 that a Hot Spring
Law was passed, recognizing as onsen only those hot springs that
could comply with certain standards, like temperature and mineral
composition, fixed by the government (2300 by 1990).
3. Structure of emphyteusis
The revised Code abolished the system of permanent lease (eishaku-
ken) provided by the Boissonade Code and introduced instead, for
the purposes of agriculture and cattle-breeding, the system of emphy-
teusis (eikosakuken), aiming originally at the legal acknowledgement of
former existing customs in that respect. The content of emphyteu-
sis was defined as the entitlement of the emphyteuta to cultivate the
land of another person or rear livestock thereon upon payment of a
rent (Article 270). The emphyteuta was not allowed to effect any
alteration which might cause damage to the land, but he could assign
his right or lease the land to another person within the duration of
his right for the purpose of cultivation or the rearing of livestock
(Articles 271, 272). Customs were regarded as preferential in Article
277: if which there existed any customs differed from these provi-
sions, such customs should prevail. But by means of a system ori-
entated the original meaning of emphyteusis, which had the character
of an unlimited part-ownership, became restricted again: its dura-
tion was limited by means of Article 277 to a period of fifty years.
Even if a longer period than fifty years had been argued upon, period
had to be reduced to fifty years. The political background of this
regulation was to remove the former system, of feudal sub-owner-
ship of land, which had served to collect duties and taxes, from the
regulations of the revised Civil Code, and to exchange it for a mod-
ern right of usufruct. But on the other hand the introduction of
emphyteusis with its special character, that is lacking in other west-
ern codifications, shows, too, that the land reform projects of the
Meiji period could not homogenise totally the historically outdated
structures of land ownership; the remedy for homogenisation had
been in fact the institution of emphyteusis.
4. Acquisition and loss of real rights

One of the most discussed subjects in real rights law, from the very
beginning of the introduction of the Civil Code, is how to deal with
questions concerning the acquisition and loss of real rights, covered
in Articles 176ff. One of the reasons for the considerable interest of
scholars, as well as of the jurisdiction, is the relatively simple struc-
ture of the legal text in Art. 176: “The creation and transfer of real
rights take effect from the mere expression of intention of the par-
ties concerned.” Although this French law influenced formulation
seems to be clear at first sight, different ideas emerged about which
principles and theories of law were ruling Japanese law: the so-called
principle of will (ishi shugi ), or the principle of formality (keishiki shugi ).
As of the principle of will opinions differ as to whether real rights
should be transferred by mere consent as an absolute effect, or
whether consent can only cause relative effect between the parties
of contract and not automatically with regard to third parties. As is
shown in connection with Art. 177, the mere consent in the trans-
fer of property does not have automatical effect vis-à-vis third par-
ties, because this article says that the acquisition, loss and alteration
of real rights relating to immovable property cannot be transferred
to third parties unless the registration is made in accordance with
the provisions of the Registration Law. Therefore, it has been argued
that some aspects of the so-called principle of formality should be
applied. According to this, various supplementary acts are required
in addition to the mere expression of intention, will or legal acts,
for instance, a formal delivery or registration must be made to achieve
legal effect between the parties themselves. Practice as well as the-
ory in Japan have therefore been confronted from the beginning of
the introduction of the New Civil Code with questions concerning
the validity of the two principles in Japanese Law.
The Law Courts tended principally to take a conservative attitude
where respect of the will of the parties was concerned: The Tokyo
Court of Appeal ruled in 1910, that when an obligation to transfer
a real right over a specific thing comes into existence, it has the
effect of transferring the real right immediately and without any for-
mality being observed. One problem caused by this interpretation
of the Law was that of double-selling the same thing to different
parties; who should be recognized as owner in such a case? How
should the problem of invalidity of contract be handled?
218 civil code
Jurisdiction soon became aware that article 176 could be under-

stood only as a rule or principle, and therefore had to establish its
own rules on how to interpret this article in individual cases, which
showed the relativity of the principle of will. If, for instance, as ruled
by the Nagasaki Court of Appeal, in respect of an immovable, a
contract of repurchase had been made but not registered and the
ownership of the immovable was in the hands of a third person at
the time of repurchase, the mere expression of intention on the part
of the party having the right to repurchase did not have the effect
of transferring the ownership from the buyer to the seller. In that
case registration could only be demanded after having demanded
the transfer of ownership. Soon after this ruling the Tokyo District
Court made it clear that in the case of sale of a specific thing the
seller may retain ownership until the buyer has paid the selling price,
although “as a rule” the buyer acquires ownership simultaneously
with the formation of the agreement.
In a similar sense, Article 177 had been established as a “rule”,
when the Daishinin (Imperial Supreme Court until 1945) argued in
important decisions from 1903–1910, that Art. 177 determines the
conditions on which the acquisition etc. of a real right relating to
immovables can be opposed against third persons who have a legiti-
mate interest in asserting the absence of the registration thereof. This
article should therefore not apply where the act is a fictitious expression
of intention and the voidness thereof can consequently be opposed
against a third person in bad faith. The fact that Art. 177 provided
that those real rights enumerated in the Registration Law cannot be
opposed against third persons unless registered did not mean that un-
registered real rights cannot absolutely be opposed against any person
even if he is in bad faith. But registration itself was nevertheless held
to be essential: a person who purchases an unregistered immovable
(land or building), could not oppose the transaction against third per-
sons unless he was registered. So if a real right over an immovable
had been separately transferred to different persons, this fact did not
affect the person registered as the person entitled.
In some cases, the determination of the third person causes prob-
lems so certain criteria had to be established by the law courts. Some
of these were that this person had to have a legitimate interest in
asserting the lack of the registration of the acquisition etc. of a real
right. A possessor without any legitimate title could therefore not be
regarded as having a lawful interest in asserting the lack of delivery
or registration against the person who has acquired the ownership

of the thing in question.
4. Legal separation of land and building

The reception of western law naturally lead to conflicts in legal con-
ceptions. One of the very important sections where this conflict
became obvious was the relationship of land and things connected
with it like buildings, trees etc. The conception of western law had
been dominated by the Roman law principle ‘superficies solo cedit’,
which meant that the legal destiny of a building was connected irrev-
ocably to that of the land it was standing on. On the other hand,
there was the Japanese tradition which seems to be taken by the
Japanese legislators for granted without thinking it to be necessary
to give any reason when following this conception in the Civil Code.
But actually there had been strong votes for adopting western law
principles also in that respect in order to get a kind of unified sys-
tem.13 But this idea is not expressed anywhere in the Civil Code.
One of the main reasons is that during the process of legislation
there was already fierce opposition to this principle of unity of land
and building. Although the opponents had been a minority in the
beginning, they were strong and influential enough to uphold the
traditional principle of separate handling and to prevent a legal
definition or regulation of this question being introduced into the
law. In particular, Article 86 of the Code, providing that ‘land and
things fixed thereto are immovables’, is said to have been a con-
cession to these opponents.14
The dispute over this question was decisively influenced by the
discussion about the regulations of hypothec15 law in December 1896,
when the extension of the effect of a hypothec and the relationship
between hypothec and statutory superficies in case of realization of
13
Especially Ume, who was responsible for the part of real right in the Civil
Code, voted for the concept of entity of land and building; see his comments on
this issue in tochi to tatemono no kankei (1906), p. 9.
14
E. Hoshino: Hògaku ronshù vol. I (1970) p. 147f.
15
There are different translations into English of the Japanese word teitò, f.i.
mortgage of land (in Britain) or on real property (US); charge by way of legal mort-
gage, deed of trust, security etc. The fact that there exists a specific mortgage sys-
tem in Japan should, on the other hand be recognized by using a different notion,
as is also done in the English version of the Civil Code of Japan, published by
Eibun Hòreisha under authorization of the Ministry of Justice (1966).
220 civil code
the hypothec had to be decided. In its first draft the effect of a

hypothec on land should apply also to a building constructed upon
it. Ume, who had written this draft, was convinced that a building
should be looked at in principle as a fixture of a piece of real prop-
erty, but he admitted also different agreements of the parties; build-
ings constructed after a hypothec had been imposed on the land
could be brought together with the land to the auction sale. This
position was, however, criticised by those representatives of the leg-
islative council who preferred to uphold custom, where land and
building were totally independent things (this custom derived mainly
from the way of constructing houses in Japan: related to climate etc.
houses were nearly without exception wooden constructions, not built
for eternity but to remove and rebuild quickly). The criticism was
at last successful and led to the formulation of the now applicable
Article 370: ‘A hypothec shall extend to all things, except buildings,
which appertain to or form the part of the land hypothecated.
However, this shall not apply to cases where it is otherwise provided
for by the act of creation or where the act of the obligor can be
rescinded by the obligee . . .’.16 Following this principle, other attempts
to introduce the idea of entity of land and building into the Code
could not be realized, for instance, Tomii could not in the part he
was responsible for, the General Provisions chapter III on ‘things’,
uphold his formulation, which provided a regulation similar to that
of Article 94 of the German Civil Code.
Another effect was related to the right of usufruct of immovable
property. In order to uphold the economic entity Ume suggested that
in case of realization of a hypothec on land the building should always
be part of the realization. In this respect there had also to be found
a compromise in Article 388: ‘If, where the land and the building
thereon belong to one person, either the land or the building only
has been hypothecated, the hypothecator is deemed to have created
a superficies for the benefit of the purchaser at official auction; . . .’.
Nevertheless some contradictions remained concerning the ques-
tion of existence or non-existence of the principle of entity of land
and building in the Code—considering the fact, that these difficult
problems were decided in a very short period of only about three
weeks, it is not surprising that the elaboration resulted in rather
16
See Matsumoto: Teitòken to riyòken, vol. 80 (1979), p. 300f.
vague formulations. It was again Ume who referred to Article 242,

concerning the adjunction of immovables: The owner of an immov-
able acquires the ownership of anything united thereto as accessory;
however, this shall not affect the rights of another person who has
attached such thing by virtue of title.’ Together with Article 86, say-
ing that land and things firmly affixed thereto are immovables, Ume
as well as Tomii came to the conclusion that a firm relationship
between land and building was still provided by the law.17
The above mentioned fact, that legal tradition in Japan separated
buildings from the land they were standing on, raises the question
if and to what extent there existed the idea of private property in
real estate at the time of elaboration of the Japanese Civil Code.
Different categories of ownership can be found in literature focus-
ing on the relationship between farmers and feudal lords; property
right of Japanese farmers at the end of the 17th century were classified
as ‘virtual ownership’, whereas that of the feudal lord was merely
understood as ‘theoretical ownership’;18 others argue that private
property on land had existed in Japan since the Taika reforms in
the 7th century.19 On the other hand, leading jurists argue that a
totally free property right in real estate came into existence only
after the Meiji Restoration, when in 1872 the limitations of real
estate transactions then extant were abolished.20 The question, how-
ever, is relevant only if we are dealing with the problem of what
private property in real estate should be used for. Compared with
the development in western countries with their systems of liberal
economy and society, free disposable private property in real estate
had been mainly the object of capitalization for investment in eco-
nomic development; at the beginning of the Meiji Restoration, this
connection was not yet conscious in the accepted view. It would
have taken much longer for this consciousness to become a com-
mon standard, but the separation of private property into land and
17
Tomii, p. 143; Ume, p. 11; see for more details of the discussion R. Bahr:
Das Tatemonohogoho in der höchstrichterlichen Rechtsprechung Japans (1980), p. 27f.
18
K. Asakawa: Notes on Village Government in Japan, J. of the American
Oriental Society Vol. XXX (1910), p. 264.
19
K. Nagata: Das Grundbuch und die Rollen des gewerblichen Rechtsschutzes
(1929), p. 6.
20
J. Murakami: Einführung in die Grundlagen des japanischen Rechts (1974),
pp. 42, 44.
222 civil code
buildings proved to be more of an encouragement than a hindrance

to economic development in Japan, because the objects of property
could be disposed of in a much more flexible way.
5. Enactment of the Law on the Protection of Buildings

As mentioned above, one of the typical phenomena of Japanese real
rights law is the traditional view that buildings or trees (including
bamboo) can be owned separately from the ownership of the land
these things were standing on. The New Civil Code categorized this
as superficies which, though in principle a lease, was classified as
real right and as such distinguished from the mere hiring contract,
which was an obligation. But the effect of a real right depended on
registration, for which consent of the landowner was necessary. As
for principle, no one was interested in creating such a strong right
on his land unnecessarily, for the most part rental contracts were
concluded for the above mentioned purposes. This left the lessee
without any protection, as there was no provision in the Civil Code
for granting the lessee right to oppose his position against the new
owner if the land he rented was sold.
There had been, at an early stage, some attempts to treat these
problems with legislative measures. A law of 1900, for instance, enti-
tled lessees of structures or trees etc. to get their rights registered
within one year after the enforcement of the New Code, if their
right previously existed. But these measures proved to be too short-
sighted, and changes in socio-economic relationships, especially after
the war with Russia in 1904/05 and the connected needs for land,
led to a widespread abuse of the right of renting land, a phenom-
enon which is known as chishin baibai (earthquake selling): owners
forced the lessees to leave the land on the pretext of having sold
the land to a third person. As houses were normally built and owned
by the lessee, they had to be torn down; the resemblance to the
effects of an earthquake gave rise to the name. The legislation set
up in consequence was the so-called Buildings Protection Law (tate-
mono hogohò ) of 1909, which entitled those who had rented land for
the purpose to build on it a house for themselves to occupy to oppose
their right against third persons; if their building was registered, the
contract of hiring or superficies had not to be registered.
Once again the experience of the war showed the inadequacy of
the law, especially with respect to the period of hiring and the prob-
lems which could arise if buildings were destroyed. After World
War I the situation with land lease worsened; to give more protection
to those who did not have their own land to build a house on or to
those who wanted to rent a house, two laws were enacted on April
8, 1921 as Laws No. 49 and 50: the Land Lease Law and the House
Lease Law. The Land Lease Law provided that the protected right
of lease of land shall mean the right of superficies and the right of
lease subsistent for the purpose of owning buildings. In Article 2 a
period of sixty years was fixed for which the right of lease of land
should continue to exist in the case of leases which have for their
object the ownership of buildings made of stone, earth or bricks, or
of similar solid structure, and thirty years in the case of leases on
other buildings. If the building were to be destroyed prior to the
expiry of these periods, the right of lease of land would also be extin-
guished. Special measures were taken to make contract extension
available to the lessee: if he demanded renewal of the contract it
was deemed that the right of lease of land had been renewed on
the same terms as those of the former contract. Of course the owner
could raise objections, but these were accepted only if he proved
that he needed the land himself or for other justified causes. The
position of the lessee became even stronger through the provision
that if the contract was not renewed, the holder of the right of land
could demand that the buildings or other things which he had added
to the land by virtue of his right had to be purchased by the
landowner. Contrary to the owner, the lessee was not punished for
forgetfulness: if the lessee of land continued to use the land after
extinction of the right of lease and the landowner failed to raise an
objection without delay, it was deemed that the right of lease of land
had been renewed on the same terms as those of the former contract.
Together with the tatemono hogohò, which provided for the protection
of rights by abolishing the necessity for registration of the right of
lease and holding the registration of the house as sufficient, and the
competence given to the courts by the new law to alter lease terms or
to give permission in favour of the lessee in lien to the consent of
the lessor, made this regulation one of the most important pieces of
legislation to protect social status at that time.
In the same sense the House Lease Law protected the lessee of
a house: even if not registered, lease of a house could, when the
house had been landed over, thereafter be effective and oppose against
any person who acquired a real right on the house. This had, in
consequence, the same effect as an amendment of the Civil Code,
224 civil code
where Article 605 provided that the lease of an immovable should

be effective even against a person who subsequently acquires real rights
upon such an immovable, only if registered. Similarly to the Land
Lease Law, the lessor of a house could not refuse renewal of the lease
or make an offer of cancellation unless he needed to use the house
himself or there existed other just causes. In case where the parties
had specified the term of the lease and one party failed to give the
other party notice within six months to one year prior to expiration
of the term, it was deemed that a lease had been renewed on the
same terms as those of the former lease.
All these stipulations, which had been necessary for a time to pro-
tect the individual rights of poorer people in order to achieve a cer-
tain degree of social justice, had, after World War II and along with
the economic growth, leading to an unprecedented rise in land prices,
a reverse effect: the lessees’ position—be it land lease or house lease—
seemed in many cases to be overprotected, because his legal posi-
tion had become stronger than that of the land- or house-owner.
This lead of course to conflicts with the constitutionally guaranteed
right to property; the social aspects of the legislation had gradually
vanished into the background. This finally led to legislative reforms
in 1991, abolishing the Law on the Protection of Buildings, the Land
Law and the House Lease Law, and giving way to a unified Law
on the Lease of Land and Houses which tries—in keeping with the
basic tenets of the old laws—to find a better balance between the
interests of the lessor and the lessee.
6. Real securities
One of the most essential sections of private law related to economic
matters is the law of real securities, because it is that part of the
law which renders economic transactions calculable to a large extent
by attracting investments for further economic development. This
section of the real rights law could therefore be looked at as a pre-
condition of Japan’s growth since the Meji Restoration. But actually
the system laid down in the New Civil Code had not been worked
out as well as other sections of the Code, because soon after its
enactment it became necessary through practical experience to estab-
lish special, separate laws which provided for real security. The Code
itself contains four types of real securities: right of retention, prefer-
ential rights, pledge and hypothec, in comparison with western laws
we can find especially in hypothec-law some specific phenomena dat-

ing back to the traditional view of separating private property on
real estate into categories of land, buildings etc. This view opened
the way to a much more flexible application of encumbering real
estate property and other rights with a hypothec. This flexibility
could be regarded as a factor in the economic development in Japan
that took place at the beginning of this century. To achieve this
goal, the general provisions on hypothec in the Civil Code had to
be supplemented; first of all, three laws were enacted on March 13,
1905 with the purpose of promoting economic investment: the Railway
Hypothecation Law (Law No. 53), Factory Hypothecation Law (Law
No. 54), and the Mining Hypothecation Law (Law No. 55) were all
dedicated to this purpose. Railway hypothecation was important for
the development of urbanisation; the Law enabled a local railway
company to create a railway estate in respect of the whole or a part
of the railway with the view to making it the subject of hypothec.
The railway estate was deemed to constitute a single entity, it should
come into existence when approval had been granted for the cre-
ation of a hypothec. At the same time the application area became
restricted: the railway estate could not be made the subject of real
rights other than ownership and hypothec (Article 4). So it became
merely a question of definition of what could become the object of
a hypothec. The Factory Hypothecation Law defined ‘factory’ as a
place used for the purpose of manufacturing or processing goods, a
printing or photographic business, a place used for the purpose of
supplying electricity or gas, and station broadcasting. Parallel to
Article 370 of the Civil Code the Law provided, in Article 2, that
the hypothec which the owner of a factory created on the land
belonging to the factory should, except for buildings, extend to things
which were fixed to the land so as to form one entity, and machines,
implements and other things utilized by the factory which were
installed on the land. A factory could therefore be regarded as an
economic, encumberable entity, leaving buildings to be encumbered
separately. This idea was later supplemented by the Enterprise Hypo-
thecation Law of 1958, which made it possible for the total assets
of a limited company to be treated as a single entity, the subject of
the right of enterprise hypothecation, in order to secure debentures
issued by the company. To avoid misunderstandings, the right of enter-
prise hypothecation was specifically defined as real right (Article 1 II).
226 civil code
The holder of the right of enterprise hypothecation was even enti-

tled to obtain satisfaction of his obligation, in preference to other
creditors, out of the total assets currently belonging to the company.
Similarly to the Railway Hypothecation Law the Mining Hypotheca-
tion Law allowed the holder of the right to exploit a mine to cre-
ate a mining estate with a view to making it the subject of a hypothec.
Subsequently there were more special hypothecation laws, enabling
the Japanese legislator to prepare a flexible legal ground to build up
the economy. Examples are the Small-gauge Railways Hypothecation
Law (1909), Fishery Estate Hypothecation Law (1925), the Farming
Movables Credit Law (1933), the Motor Vehicles Hypothecation Law
(1951) or the Aircraft Hypothecation Law (1953). The enactment of
all these specialized laws became necessary because of the increased
demand for securities on movables as well as immovables, which had
not been foreseen by the legislators of the Civil Code. Nevertheless
this development in legislation makes clear again the special con-
ception of real rights law in Japan, especially with respect to the
conceptual separation of movables and immovables as well as of land
and ‘things firmly connected herewith’.
law of obligations 227
3.3 Law of Obligations
Ronald Frank
The book on “Obligations” (saiken) was the third part of the Civil Code
that was promulgated together with the “General Provisions” and “Real
Rights” in 1896. The subject of obligations had been one of the points
of contention during the Codification Controversy, albeit overshadowed
by the ultimately more politically significant topic of family law.
The apparent structural similarity between this book and its coun-
terpart in the German Civil Code (BGB) has often been cited as yet
another indication that the drafters of the New Civil Code were fol-
lowing the German model of civil law very closely indeed. On the
other hand, it has been pointed out that this section of the code
contains a lot of provisions from the previous draft, the French influ-
enced Old Civil Code of 1890. It is, however, not the aim of this
brief overview to prove how “German” or how “French” the Japanese
Law of Obligations is. Rather, the historical background and devel-
opment of a variety of the provisions set forth in Book Three of the
Japanese Civil Code will be the focus of the following pages.
3.3.1. Obligations in Traditional Japan
The modernization of Japan in the Meiji period brought with it a

significant change in the understanding of the nature of obligations.
To be sure, a variety of contracts and other legal instruments relating
to the concept of obligations had existed in the Edo period and ear-
lier, but the modern concept of saiken (“Obligational Rights”) was as
new as the concept of “right” (kenri ) itself. Elements of the modern
definition of “obligational right”, i.e. the right to claim performance
of a definite act by a definite person, were of course present in con-
tracts concluded in medieval and early modern Japan. However, the
extent to which these rights were enforceable in a court of law was
a different matter.
A distinction between real and obligational rights in judicial prac-
tice can be traced back as far as the Kamakura period (1185–1333).
The courts of the first warrior government distinguished between
cases concerning real property (shomu sata) and cases concerning other
228 civil code
matters (zatsumu sata). Within the latter category fell all cases dealing
with movable property, but also cases concerning the validity of doc-
uments in contracts etc. In other words, zatsumu sata were at least
partially concerned with what a modern jurist would call rights of
obligation. It should not go without notice, however, that the distinction
between the two kinds of cases was a procedural rather than a sub-
stantive one, and that real property cases were accorded greater
attention in the courts.
Muromachi period (1336–1573) legal practice continued this pro-
cedural distinction, although with the rise of warlord rule in the six-
teenth century a tendency towards less systematic court proceedings
became apparent. This time period also saw the development of a
new type of exclusive property rights (chigyò ), although in practice
these “rights” amounted to an agglomeration of rights and duties,
and rights of disposal were increasingly circumscribed. Sale of mort-
gaged property, of land in particular, was subject to approval by the
authorities. In other words, contracts stipulating forfeiture of mortgaged
property in case of non-payment were not automatically considered
valid and, consequently, were not legally protected.
The Tokugawa regime continued much of the legal tradition of
the immediately preceding “Warring States”, and, it might be argued,
did not reach the level of procedural sophistication that Kamakura
courts had developed. Although legal protection of transactions was
thus limited, economic necessity dictated the development of a mul-
titude of instruments of credit, mortgage, lease, and sale of property
in villages and towns. Some of these everyday legal transactions were
specifically designed to circumvent existing statutory law. Thus for
example a sale of land could be veiled as a mortgage or lease agree-
ment of unspecified duration.
Edo period judicial practice also distinguished several categories
of cases, namely real property cases (ronsho), so-called “main” or “real”
cases (honkuji ), “money” cases (kanekuji ), and “internal affairs” (nakama
goto). Whereas ronsho could be classified as falling into the modern
category of “Real Rights”, the latter three are more akin to our
understanding of “Obligational Rights”. It is important to note that
courts accorded judicial protection in descending order, with ronsho
receiving the bulk of attention, while nakama goto were routinely thrown
out. Both “main” and “money” cases were heard, though the latter
with considerably simplified procedure. The distinction between these
two categories was the involvement of real property. “Main” cases
dealt with transactions that were secured by collateral, whereas

“money” suits dealt with unsecured transactions, mainly interest bear-
ing loan instruments.1
Generally speaking, all of these cases were considered civil cases
insofar as it was up to the plaintiff to initiate a suit. In other words,
the enforcement of such rules as existed was left to the discretion of
the litigant. However, it should also be noted that there was no guar-
anteed right to demand justice from the courts of either daimyò or
shogunate, Rather, the courts granted consideration of a case as a
special grace, and since courts were staffed by warrior administrators
who received their income from land, cases of monetary disputes
between non-warriors that did not involve land were considered as
not deserving much attention.2 The distinction of several categories
of cases was thus designed to prioritize the allocation of limited judi-
cial resources in a way most beneficial to warriors.3
As a result, contracts were not necessarily protected in Tokugawa
courts. This state of affairs raises two intriguing questions. First, was
the distinction between honkuji and kanekuji purely procedural, or does
the relative neglect of the latter by the courts imply a substantive
differentiation as well? Second, if a contract over a loan without col-
lateral is likely to be unenforceable, what is the nature of such a con-
tract, and of contracts in general, in the first place? While an answer to
the first question would go beyond the confines of our topic,4 some
observations about the nature of contracts in premodern Japan are
in order.
First and foremost, the contracting parties were, as a rule, not
considered equals. Consequently, it would be difficult for the “junior”
partner in such a relationship to claim performance of an act by
the “senior” partner as his “right”. Written contracts usually contained
signatures of third parties acting as witnesses. In a rural setting such
1
Since the distinction was not always readily apparent, lists of honkuji and kanekuji
were published from time to time. For an example see Dan F. Henderson “ ‘Contracts’
in Tokugawa Villages”, Journal of Japanese Studies, Vol. 1 (1974), pp. 73–75.
2
The procedural rules for money cases called for enforced conciliation in most
cases. See Dan F. Henderson, Conciliation and Japanese Law (Seattle: University of
Washington Press, 1965), pp. 106–115.
3
Carl Steenstrup pointed out the shortsightedness of such an approach in the
preceding volume of this series. See his History of Law in Japan Until 1868 (Leiden:
E.J. Brill, 1991), p. 155.
4
Henderson questions the very usefulness of the terms “procedural” and “sub-
stantial” in this context. See his “Contracts”, p. 72.
230 civil code
contracts would thus become known to a wider audience, a fact

which would make performance of the obligation more likely to
occur. Henderson consequently characterizes such contracts “as pub-
lic instruments of consensual governance, rather than simply private
agreements”.5 A written contract was thus more often than not an
instrument that relied on social rather than judicial enforcement, by
itself it did not create a right to initiate a lawsuit in case of a breach.
The same holds true for contracts concluded in an urban environ-
ment. Since the vast majority of these were classified as “money
suits”, their enforceability was for the most part not directly linked
to the judicial system.
In short, the premodern Japanese legal order did not recognize a
contract as an abstract instrument creating an obligational right
enforceable through legal action. Access to courts and possibilities of
appeal were severely limited, and statutory civil law had but limited
influence on the day-to-day activities of commoners. These funda-
mental assumptions were to undergo a tremendous change over the
course of the Meiji period.
It is to this process that we shall now turn.
3.3.2. Obligational Rights in the Early Meiji Period
A cursory look at the legislation pertaining to obligational rights in

the early Meiji period reveals that old habits did indeed die hard.
Apparently the lack of protection of obligations by courts of law had
not yet been identified as an “evil custom of the past” that according
to the Meiji Charter Oath should have been abolished. Instead we
find a multitude of pronouncements that continue the tradition of
severely restricting legal protection for certain kinds of “money cases”
and make access to courts subject to conditions.
The early years of the Meiji period saw a tendency to classify
obligations according to criteria that can only be described as “pre-
modern”. For one, the social status of the parties to a contract deter-
mined whether or not it received legal protection. Thus for example
an edict of the Meiji government in October 1872 stipulated that
courts would not accept legal action brought on a loan involving
5
Ibid., p. 63.
commoners, if the loan was arranged on or before the last day of

1867.6 What is of interest in this regard is not so much the fact that
this edict was designed to reduce the caseload courts had to deal
with, but that it did so on a selective basis. Non-commoners could
bring suit on older loan arrangements as well. An earlier edict had
made conciliation attempts mandatory in cases of loan agreements
involving nobility, gentry, and temples and shrines, but also provided
for the opportunity to bring action in cases of unsuccessful concili-
ation or hardship to the parties involved. In short, the system acted
to protect the rights of people with hereditary privilege with greater
zeal than those of commoners, thus reflecting the legal order of the
Edo period to a large extent.
Another reflection of legal thinking of the ancien regime can be found
in the differentiation of interest and non-interest bearing loans. There
was a general tendency in the courts of the Edo period to favor non-
interest bearing loans over interest bearing ones, most likely this was
a reflection of traditional ethics in an agricultural society. It is remark-
able that despite the commitment to modernization such attitudes
were carried over into the Meiji period. For example Ministry of
Justice Edict #41, published November 27, 1872, provided among
other things that interest bearing loans and deposits with a fee were
justiceable only if the contract had been concluded after June 25,
1869. Non-interest bearing loans were, however, exempt from this
provision.7 From the evidence of this edict and others like it, it would
appear that the government had not yet realized the necessity of
legal protection of credit instruments for the economic development
of the country.
Lastly, early Meiji period legislation regarding loans followed
Tokugawa precedent in extending protection to all loans secured by
a collateral. The Ministry of Justice Edict mentioned above con-
tained a provision to that effect. However, hereditary stipends were
not recognized as collateral and suits involving such arrangements
were not permitted. Once again, the interest of the privileged classes
seemed to be foremost on the mind of the drafters of these edicts.
They appeared to become interested once property had actually
6
Edict #317, dated 10/22/1872. See Hosokawa Kameichi, Nihon kindai hòseishi
(Tokyo: Yùhikaku, 1961), p. 204. Since the lunar calendar was stiff in force the
cut off date is actually January 24, 1868.
7
For a list of the contents of the entire edict see Hosokawa, (note 6), pp. 206–207.
232 civil code
changed hands as a result of a credit transaction. Since samurai were

more likely to be debtors and commoners to be creditors in such
transactions, making such agreements justiceable meant protecting
the rights of samurai first and foremost. By the same token, hered-
itary stipends (although soon to be abolished) were considered non-
transferable privileges, and their use as collateral was discouraged.
In general, it appears to have been government policy to limit the
legal protection of obligations. Many were repudiated in a wholesale
fashion, while many others were effectively turned into natural oblig-
ations. The dividing line between denying the right to bring action
and denying the substantive right to collect a debt itself was at times
rather fluid and ill-defined. For example, a government edict from 1872
stipulated a five year limit on bringing a suit for non-payment, but
a year later another edict specified that only the right to sue was
affected by this limitation.8 The 1873 Statute of Limitations, however,
provided that if a suit was not brought within the time limit stipu-
late for a given type of transaction, the contract was deemed canceled.
The creditor thus lost the substantive right to demand performance,
rather than just the right to bring legal action.9 Eventually, the subject
of natural obligations would be treated extensively in the 1890 Old
Civil Code, only to be dropped as a concept by the drafters of the
New Civil Code.
Thus it can be said that the legal protection extended to obligations
in the early Meiji period was piecemeal at best, and woefully inadequate
at worst. The overriding concerns in the legislation pertaining to
obligations were to ease the caseload of the courts and to protect the
interests of privileged classes—hardly a recipe for modernization of
the legal system.
3.3.3. Obligations in the New Civil Code
Book Three of the new Civil Code is entitled simply “Obligations”

(saiken).10 As indicated above, this part of the code was promulgated
8
Edict #300 of 10/07/1872 and Edict #50 of 03/31/1873, respectively. See
ibid., p. 206 for the full contents of these edicts.
9
See Ishii Ryosuke, Japanese Legislation in the Meiji Era (Tokyo: Tòyò Bunko, 1958),
pp. 640–641.
10
It is possible to translate the term saiken as “Rights of Obligation” (as this author
would be inclined to do), however, the simple “obligation” is commonly accepted
in translating the title of Book Three of the code.
in 1896 together with the two preceding books on “General Provisions”

and “Real Rights”. It was drafted by Hozumi Nobushige, Tomii
Masaaki, and Ume Kenjirò who had been charged with revising the
previous French inspired draft of the civil code. In the process of the
revision, the drafters had to grapple with a number of technical issues
that been part of the codification debate. These issues concerned such
questions as the subject of obligations and the role of “natural obliga-
tions” in the code. In both instances the drafters decided against fol-
lowing the French school. The whole topic of natural obligations was
dropped from the new code, and the subject of an obligation can,
according to Article 399, be even a thing that can not be valued in
money.
Although the draft of the new code followed by and large the
structure of the German Civil Code, the book on obligations did so
only to a certain extent. To be sure, many provisions do have an
equivalent in Book 2 of the BGB. However, the way in which these
provisions are arranged in the code is, if anything, even more sys-
tematic than in the BGB. Thus, Book 3 of the new Civil Code starts
with a chapter on “General Provisions” (sòsoku, Arts. 399–520), fol-
lowed by “Contracts” (keiyaku, Arts. 521–696), “Business Management”
( jimu kanri, Arts. 697–702), “Unjust Enrichment” ( futò ritoku, Arts.
703–708), and “Unlawful Acts” ( fuhò kòi, Arts. 709–724).
The process of compiling the provisions of the law of obligations
entailed a careful sorting and revision of the articles of the Old Civil
Code pertaining to that particular subject matter, rather than a copy-
ing of the German model. One issue in particular deserves mention.
The Japanese Civil Code did not employ in its treatment of con-
tracts the principle of abstraction so dear to the heart of the Pandectist
authors of the BGB. In short, this principle distinguishes between
the contract of sale in which the parties bind themselves to the trans-
fer of a right on the one hand, and the “real contract” which entails
the actual performance of the obligation. Furthermore, these two
contracts are deemed valid independently of each other.11 This the-
ory of the “abstract legal contract” was not employed in the Japanese
Civil Code. Consequently, following the logic of Zweigert and Kötz
who see this theory as a defining factor of the Germanic family of
11
For a description of the fundamentals of this concept see Konrad Zweigert
and Hein Kötz, An Introduction to Comparative Law, Vol. 1 (Amsterdam: North-
Holland Publishing Co., 1977), pp. 178–185.
234 civil code
law, one could argue that Japanese civil law, despite all its resem-
blance to German law, actually belongs to the Romanistic family.
This is, however, a problem for the comparative jurist, not for the
legal historian.
In the following, we will look at the history of some of the most
important provisions in the Book on “Obligations” and their histor-
ical background.
3.3.4. General Provisions (Arts 399–520)
3.3.4.1. Subjects of Obligations

Following modern legal theory, the Japanese Civil Code defines an
obligation as a right to claim performance or omission of a definite
act from a definite person. The existence of an obligation presupposes
the existence of a debtor (saimusha) and a creditor (saikensha), as well
as a clearly defined subject of the obligation. Generally, a subject of
an obligation does not have to have monetary value (Art. 399). As
indicated above, this provision differs markedly from the corresponding
article in the Old Civil Code which recognized only things valuable
in money as subjects of obligations. Judicial practice in the early
Meiji period did show a heavy bias towards the monetary value of
the subject of a transaction, since the amount in question could
determine whether claims were justiceable in a court or not.
Article 404 of the code set the interest rate of an interest-bearing
obligation at 5 percent if nothing else was specified in the contract.
Compound interest, however, starts to accrue only after a year in
which the debtor, despite demands of the creditor made no pay-
ments. These provisions by themselves do not amount to an absolute
legal limit on interest rates. Such limits had been set in the 1877
Law on the Limitation of Interest Rates (risoku seigen hò )12 which
would remain in force until 1954. This law distinguished between
interest determined by contract (keiyakujò risoku) and interest deter-
mined by law (hòritsujò risoku). The latter was the rate deemed applic-
able by the court when no provision had been made in the contract,
and it was set at 6 percent annually. Limits for contract-based inter-
est were set at 20 percent for loan amounts under 100 yen, 15 per-
cent for loans above 100 but below 1000 yen and 12 percent for
12
Published as Edict #66 on September 11, 1877.
any sums exceeding 1000 yen. Any agreed on interest above and
beyond these limits was not claimable through legal action and had
no effect in court.13
Interest rates had been significantly reduced over the course of
the Edo period after being as high as 100 percent annually in medieval
times. In the early years after the Meiji Restoration government
edicts tended to recognize the freedom of contracting parties to deter-
mine interest rates but insisted on these rates being clearly stipulated
in the contract. If this had not been done, the courts were to assume
a rate 6 percent in accordance with a Ministry of Justice Edict from
1873. This regulation and others like it presaged the category of
“interest determined by law” in the 1877 Law described above. The
provision of the Old Civil Code was virtually identical, the new code
reduced it to 5 percent.
Compound interest was a relatively new concept. Unknown in the
Middle Ages, it had been outlawed throughout the Edo period and
all but ignored by early Meiji legislation.
3.3.4.2. Effect of Obligations

Section 2 of the General Provisions is entitled “Effects of Obligations”
(saiken no kòryoku) and contains provisions relating to delay, compen-
sation for damages resulting from non-performance, and to effect of
obligations against third persons. According to Article 414 obligations
can be enforced by court order at the request of the creditor. The
sole criterion for defaulting on an obligation is the arrival of the
time for performance as spelled out in the contract (Art. 412). Unlike
the Old Civil Code, the New Civil Code also recognized the possi-
bility of a creditor’s responsibility for the non-performance of an
obligation (Art. 413). There are no provisions regarding the conse-
quences of default by the creditor. However, if the creditor is solely
or partially (Art. 418) responsible for the delay or non-performance,
the code stipulates that monetary compensation for damages can be
demanded by the debtor.
Compensation for damages figured prominently in the piecemeal
legislation of the Meiji period concerning contracts. Normally such
compensation was treated as somewhat analogous to interest. For
example, an edict issued by the Ministry of Justice in 1873 listed
13
For a summary of this law see Hosokawa (note 6), p. 209.
236 civil code
several types of normally non-interest bearing obligations that could

be subject to interest after the arrival of a specified time period or
after demand of payment had been made by the creditor. However,
provisions over the accrual of interest after a specific time had to
be stipulated in the contract.14 Edo and early Meiji period contracts
apparently often provided for penalties in case of non-payment or
payment arrears. The 1877 Law on the Limitation of Interest Rates
stipulated that such penalty agreements be recognized as compensatory
damage clauses by the court, but provided for the possibility of adjust-
ment if the judge considered the amount unreasonable. Judicial prac-
tice subsequently refused to recognize penalty clauses. Pre-arranged
damage amounts, however, continued to be recognized. The Old
Civil Code contained a provision to the effect that a court may not
change such agreements. Article 420 of the new code states the same.
According to the New Civil Code, the debtor is held liable only
for those damages that normally result from the failure to perform
the obligation. Compensation for damages stemming from specific
circumstances can only be demanded if these circumstances were
foreseen or foreseeable (Art. 416). According to Igarashi, this par-
ticular provision has its origin in English case law with which the
drafters of the code were familiar.15
Under normal circumstances an obligation is defined as a right
against a specific person and does not affect others. The New Civil
Code does, however, provide for effects of obligations against third
persons. These provisions were taken from the old code and included
the indirect right of action or action oblique (kansetsu soken) and the
right to bring revocatory action (haiki soken). The former allows the
creditor to exercise rights belonging to the debtor in order to pro-
tect his own rights (Art. 423). The latter empowers the creditor to
seek annulment of juristic acts done by the debtor that were intended
to harm the interests of the creditor (Art. 424).
3.3.4.3. Obligations with a Plurality of Parties

The section entitled “Obligations with a Plurality of Parties” (tasù tòjisha
no saiken, Arts. 427–465) deals with cases in which there is more than
one creditor or debtor. The general assumption as expressed in Article
14
Ibid., p. 208.
15
Kiyoshi Igarashi, Einführung in das Japanische Recht (Darmstadt; Wissenschaftliche
Buchgesellschaft, 1990), p. 89.
427 is that an obligation is divisible. However, all other articles in

this section are devoted to exceptions from this general rule. The
code identifies three categories of such exceptions, namely indivisible
obligations ( fukabun saiken), joint obligations (rentai saimu), and suretyships
(hoshò saimu). As the difference in the original Japanese terminology
makes clear, indivisible obligations can be any obligational rights
(saiken), regardless of whether they belong to the obligor or the obligee
(Arts. 427–430). Joint obligations, on the other hand, are only debts
(saimu), consequently there can be no joint creditorship. This par-
ticular solution differs from the provisions of both the Old Civil
Code and the German BGB were joint creditorship is provided for.
A further difference between the German and the Japanese code is
the fact that in the latter sureties are treated as an obligation with
a plurality of parties, whereas the former considers them a type of
contract. This solution was apparently influenced by the large role
suretyship had played in contracts throughout Japanese history.
Joint obligations had been commonplace in premodern Japan and
continued to be of interest to the judicial system throughout the early
Meiji period. However, there appears to have been a lot of confu-
sion as to whether or not all debtors in a joint obligation were truly
jointly responsible for the performance of the obligation. In other
words, the nature of the joint obligation was ill defined before the
Civil Code came into force. The following examples provide an illus-
tration of this fact.
In the Edo period, creditors had been required to bring action
against all debtors in suits pertaining to joint obligations. A direc-
tive of the Ministry of Justice to a local court from 187416 stated
that a joint obligation exists when there are several debtors and the
instrument of the loan does not specify the amount owed by each
debtor individually. If the document states the amount owed by each
individual debtor, the case shall be deemed a regular obligation. The
directive did not specify the extent to which individual debtors were
responsible for the repayment of a joint obligation. An earlier doc-
ument issued as Edict #247 in 1873 and entitled “Primer for Pleas
and Responses” (sotò bunrei ) had, however, stipulated that “in case
of a loan instrument bearing the signatures of several debtors demands
for repayment must be made jointly to all debtors.”17 This particu-
lar edict was most likely reflective of Edo period judicial practice.
16
See Hosokawa, (note 6), p. 210.
17
For the original text see ibid., p. 212.
238 civil code
The Grand Council of State (dajòkan) stated its opinion on the

matter in an edict issued in response to an inquiry from the Ministry
of Justice in 1875. According to this edict, payment of a joint debt
could be demanded from debtors, even if some of them had died
or disappeared, unless the specific amount owed by each debtor had
been specified in the loan document. It remained unclear whether
each debtor was individually responsible for the entire loan or whether
all remaining debtors were jointly responsible. An inquiry from a
local court to the Ministry of Justice from 1880 illustrates this fact.
It asked whether a demand for payment that was not directed to
all debtors could be directed to one debtor alone.18 Would such an
interpretation be consistent with 1875 edict of the Grand Council
of State? In response the Ministry of Justice declared that all debtors
should be held jointly responsible, although different directives had
been issued in the past. Curiously, it justified this decision with a
reference to the 1873 primer mentioned above. Evidently the treat-
ment of joint obligations had come full circle.
The provisions on joint obligations in the Civil Code follow those
of the old code fairly closely, except with regard to the construct of
joint creditorship which the drafters dropped as a needless technical
aspect. As indicated above, joint obligations are, consequently, exclu-
sively saimu, i.e. debts. A creditor may demand performance of a
joint obligation against either one or all debtors. In the latter case he
may do so simultaneously or successively (Art. 432). If a demand for
performance of the obligation is made against one of the debtors, this
demand takes effect also against the other debtors (Art. 434). Along with
this provision, the code distinguishes five other actions with regard to
one debtor that have an automatic effect on the other debtors, namely
novation, set-off, release, confusion, and prescription. All other matters
affecting one of the debtors have no effect on the others (Art. 440).
As mentioned previously, the inclusion of suretyship in the general
section of the law of obligations is a distinct characteristic that sets the
Japanese Civil Code apart from the German BGB. Surety had tra-
ditionally been considered an integral part of contractual relationships
and had had a long history in Japan. In essence, the presence of surety
in the instruments of the obligation was construed by the New Civil
Code to make the obligation a joint one, albeit with a differentiation
between the principal obligation (shutaru saimu) and the accessory
18
For a portion of the text see ibid. pp. 211–212.
obligation of a surety. In contrast, the BGB viewed suretyship as a

separate category of contracts.
The existence of sureties or guarantors can be traced throughout
the entire history of law in Japan. A guarantor seems to have been
commonplace in contracts governing the lease of land and buildings
and especially in matters of employment for a wage, apprenticeship
and the like. Generally speaking, the less well the parties to a contract
knew each other, the more likely was the inclusion of a guarantor
into he contract. Guarantors were thus prevalent, in contracts con-
cluded in urban settings and in cases of geographical distance between
the contracting parties.
The line between guarantorship and joint obligation was appar-
ently blurred in particular during the Edo period. Traditionally, the
most common type of guarantor was considered responsible for the
presence of the debtor until the obligation was performed, but was not
held personally responsible for simple default of the debtor. So called
shònin, on the other hand, were sureties in the modern sense, and
were thus responsible for the performance of the obligation regardless
of the reason for the default. This distinction all but disappeared
during the Edo period, and as a result, creditors developed the system
of joint obligations to protect their interest.19
By the early Meiji period the institution of suretyship was by and
large governed by customary law. It might be remembered that the
collection of sources on customary law was one of the important
efforts undertaken by the Ministry of Justice after 1875. The com-
pilation “Collection of Civil Customs of the Nation” (Zenkoku minji
kanrei ruishò ) of 1879 contained a wealth of information on, among other
things, the wide variety of different customs regarding suretyship.
Although it is hard to generalize the information,20 it would appear
that by the 1870s shònin for the most part were considered witnesses
to a contract and thus not held liable for default of the debtor,
whereas ukenin were a category of guarantors that could be held
liable under certain circumstances.
Government edicts and pronouncements, however, tended to blur the
distinction between different types of guarantors, most likely in order
to simplify the judicial process and ease the caseload of the courts.
As for the liability of guarantors, the tendency early on was to rely on
19
Steenstrup (note 3), p. 147.
20
For examples see Hosokawa (note 6), 213.
240 civil code
the terms of the contract. Guarantors were thus held liable only if
the contract contained a clause expressly stipulating their liability. An
example of both these tendencies is an edict published by the Ministry
of Justice in 1873. According to this edict, in cases where the contract
stipulated that the guarantor (shònin or ukenin) was responsible for
payment in case of default of the debtor, the creditor could recover
from the guarantor what he could not collect from the debtor. The
same was true if the debtor absconded or died without an heir.
Shònin and ukenin were exempt from liability if the contract did not
explicitly state their responsibility. The edict stipulated further that
the liability incurred by a guarantor pursuant to a contract passed
to his heirs upon his death. An illustration of the ad hoc nature of
legislative efforts in early Meiji Japan is the fact that almost exactly
two years later, in June of 1875, the government issued “Regulations
for the Repayment of Loans by a Surety” (Kinsen taishaku ukenin shònin
bensai kisoku). This document abrogated the provisions of the earlier
edict and stipulated that a surety (shònin or ukenin) was responsible
for the repayment of debts in case of the debtor’s default regardless
of the presence or absence of any clause to that effect in the contract.
Both the new and the old Civil Code held the surety responsible
for the performance of the obligation. This responsibility is not
affected by the reason for the default of the principal debtor. The
obligation of the surety is accessory to the main obligation, i.e. it
my not be greater than the obligation of the main debtor (Art. 449).
Needless to say, the surety’s obligation towards the creditor is sub-
sidiary to that of the main debtor, it becomes effective only upon
his failure to perform. Consequently, the creditor may not demand
performance of the surety’s obligation without having first demanded
the same from the principal debtor, unless the principal debtor is
bankrupt or missing (Art. 452). The code does provide for an exception
to the principle of subsidiary and accessory obligation of a surety in
Article 449 which presumes that a surety who knows of a ground
for avoidance of the main obligation at the time of the conclusion of
the contract of suretyship has entered into an independent obligation
with the creditor. Of course a surety must have full capacity in order
to act as surety. The institute of the joint suretyship is a hybrid of
joint obligation and suretyship. The surety in this case is jointly liable
for the performance of the obligation, yet his obligation is at the same
time considered accessory. In any event, the surety is entitled to
compensation from the principal debtor subsequent to his performance
and under certain circumstances, even before the performance.
Overall the code’s provisions on suretyship were influenced by

those of the Old Civil Code as well as by those of the German
BGB. It should, however, be remembered that suretyship is among
the oldest legal institutions in Japan. Thus, this particular section of
the code was not only reflecting Western legal thought, but to a cer-
tain extent established customary practice as well.
3.3.4.4. Assignment of Obligations

Obligations are in principle considered transferable, subject to cer-
tain conditions specified in Articles 466–473 in the Civil Code. For
the most part, the rules for the assignment of an obligation (saiken
no yuzuriwatashi ) in the new code are derived from the Old Civil
Code. In contrast to the German BGB, the Japanese Civil Code does
not provide for the assignment of debt (saimu), only for the assignment
of the obligational right (saiken). However, judicial practice in Japan
does recognize the validity an assignment of debt.21 The code dis-
tinguishes between obligations performable to a specified creditor (shimei
saiken), obligations performable to order (sashizu saiken), and obligations
performable to bearer (mukimei saiken) and specifies rules governing the
assignment of these obligations. Any obligation is assignable as long
as its nature permits and if there is no agreement of the parties to
the contrary (Art. 466). Assignment of an obligation need not be in
a specific form, but a dated instrument is required in order to set
up the assignment against third parties (Art. 467). In judicial prac-
tice the date of receipt of a notification of assignment by the debtor
is often considered more important than the date inscribed of the
instrument of assignment.22 Assignment of an obligation to order
requires an endorsement (uragaki ) in order to be set up against the
debtor (Art. 469).
The unrestricted assignment of obligations was adopted as a general
principle in the early Meiji period. As in the Edo period, a transfer
of the instrument, often but not necessarily with an endorsement, was
sufficient to make the assignment valid. The consent of the debtor
was not required. An edict issued by the Grand Council of State in
187623 stated that if the creditor transferred an instrument of an
21
Igarashi (note 45), p. 94.
22
Ibid.
23
Edict #99 of July 6, 1876. See Hosokawa (note 6), p. 217.
242 civil code
obligation to a third person, he was required to re-write the instrument

accordingly and furnish a copy to the debtor, otherwise the transfer was
considered invalid. This rule exemplifies the fact that the assignment
of an obligation continued to be construed first and foremost as a
transfer of the instrument of the obligation. It could be argued that
this edict restricted the freedom of assignment of obligations to a
larger extent than the Civil Code would do later on. This is true
insofar as the failure to re-write the contract appeared to extinguish
the substantive right of the assignee to collect the debt, whereas
Article 467 of the Civil Code states that failure of notification means
that the assignment cannot be set up against the debtor or others.
In other words, it is the right to sue that is compromised, not the
substantive right itself. On a more practical level, re-writing the entire
loan instrument was an infinitely more cumbersome process than
simply furnishing a notice of transfer to the debtor. Nevertheless, it
is possible to view the 1876 edict as something of an antecedent to
the provisions of the Civil Code concerning the assignment of an
obligation. On the other hand, the edict of 1876 is more reminis-
cent of the institution of novation (kòkai, see below), insofar as it can
be said to extinguish one obligation by substituting it with another.
3.3.4.5. Extinction of Obligations

The topic of “Extinction of Obligations” (saiken no shòmetsu) is treated
in the Civil Code in greater detail than in the German BGB. On
the other hand this section was considerably simplified in compari-
son to the corresponding provisions of the Old Civil Code. According
to the new code, an obligation can be extinguished by performance
(bensai, Arts. 474–504), set-off (sòsatsu, Arts. 505–512), novation (kòkai,
Arts. 513–518), release (menjo, Art. 519), and confusion (kondò, Art.
520). The Old Civil Code also mentioned impossibility of perfor-
mance, rescission, revocation, and completion of prescription in the
section on the extinction of obligations. The new code preserved
these categories, but in the interest of logical cohesion the provisions
on prescription were moved to the chapter on juristic acts in the
Book of General Provisions, while the others were treated in the
general section of the law of contracts (see below).
Needless to say, performance is the most common and obvious
way to extinguish an obligation; therefore the bulk of this section
deals with different aspects of performance. Generally, a third person
is entitled to perform on an obligation (Art. 474). Articles 500–503
stipulate that a third person with a legitimate interest in the per-

formance who has made such performance is subrogated into the
position of the creditor. Thus for example a surety can exercise the
rights the original creditor had against the debtor. This construct is
know as “legal subrogation” (hòtei dai’i ). Performance by an incapaci-
tated person is voided, but there is no right of recovery of delivered
items (Art. 476). If a debtor makes payment in good faith to some-
body claiming to be the creditor (so-called “quasi-possessor of an
obligation”, or saiken no junsen yùsha) or to the bearer of a receipt,
the obligation is considered extinguished (Arts. 478, 480). Article 482
provides for the possibility of substitute performance (daibutsu bensai ),
i.e. the delivery of something else in lieu of the original subject of
the obligation. This would require the consent of the creditor.
Substitute performance had had a long tradition in Japan, although
such a solution was as a rule left to the discretion of the parties.
If a creditor refuses to accept performance, the obligation can never-
theless be extinguished by depositing either the thing that is the sub-
ject of the obligation or by depositing the proceeds of the sale of
that thing at auction (Arts. 494, 497). Deposit (kyòtaku) did play a
very important role in the legislative efforts of the Meiji government
before the enactment of the Civil Code. A specific Law of Deposit
(kyòtakuhò ) had been first enacted by Imperial decree in 1892 and
was modified in 1899. Furthermore, the Ministry of Finance had
also issued rules governing the handling of deposits.
The construct of set-off provides for the extinction of mutual oblig-
ations. When two parties are indebted to each other, their obligations
cancel each other. The rules provided for such cases in the New
Civil Code are virtually identical to those of the German BGB and
deal mostly with conditions for and restrictions on set-offs. A declaration
of intention is sufficient to initiate a set-off (Art. 506). Obligations
resulting from an unlawful act cannot be set off (Art. 509), neither
can obligations that are legally protected from seizure, e.g. wages,
salaries, pensions etc. Set-offs had been employed in practice since
premodern times,24 but they had never figured prominently in statutory
law, being considered a category of conciliation. The provisions of
the Civil Code on set-offs were consequently reflective of traditional
practice in spirit, while at the same time providing a modern statu-
tory framework for them.
24
The term employed was sashi-hiki kanjò, or “balance calculation”.
244 civil code
A novation (kòkai ) is in essence a contract that establishes a new

obligation in order to extinguish an existing one. It is thus different
from a simple assignment of an obligation, since the latter is a con-
tinuation of the same obligation, albeit with a new creditor, whereas
a novation creates a new one. The provisions on novation in the
New Civil Code were essentially taken from the disputed old code. A
novation is defined as a change in the instrument of the obligation
that changes the essential elements of the obligation, e.g. the inclusion
or removal of a condition (Art. 513). Although, as indicated earlier,
the code does not provide for assignment of debts, a change of debtor
can be construed as a novation (Art. 514).
Edict #99 of the Grand Council of State of 1876 (see above),
although dealing with the problem of assignment of obligation, essen-
tially made any such assignment a novation by requiring the creditor
to re-write the loan instrument and furnishing the debtor with a copy.
Since failure to do so invalidated the transfer, a valid transfer thus
theoretically extinguished an old obligation and created a new one.
Article 519 of the Civil Code makes the declaration of intention
by the creditor a sufficient cause for the remission (menjo) of an oblig-
ation. It is in essence a simplified version of the corresponding arti-
cle in the BGB. Should creditor and debtor happen to be the same
person, an obligation ceases to exist by reason of confusion (kondò ),
except when the rights of third persons are affected (Art. 520). Needless
to say, since both of these provisions are rooted in common sense,
they had not been reflected in legislative efforts prior to the draft-
ing of the civil code.
3.3.5. Contracts (Arts. 521–696)
Chapter 2 of the Book on Obligations is simply entitled “Contracts”

(keiyaku) and recognizes thirteen varieties of contractual relationships.
The organizational principle is somewhat reminiscent of that of the
German BGB, however, the content of the provisions is frequently
influenced by the code civil and by Japanese customary law.
3.3.5.1. General Provisions

The new Civil Code gathered the provisions dealing with the formation,
effect and rescission of contracts that had been placed in various
parts of the Old Civil Code into a section entitled “General Provisions”
that opens Chapter 2 of the Law of Obligations. Although the struc-

ture of this chapter is somewhat different from that of the BGB, it
can be said that this part of the Japanese Civil Code follows by and
large the pandectist structural logic of the German code. Many of
the provisions themselves, however, have been adopted or adapted
from the Old Civil Code, some with significant changes. Most impor-
tantly, as indicated earlier, the Japanese Civil Code did not adopt
the theory of the abstract legal contract that can be considered a
hallmark of the Germanic legal family.
The role of contracts in modern Japan has been the focal point
of a number of sociological studies. It should be noted that, even in
modern Japan, a contract was viewed as providing a certain standard
of conduct in a transaction rather than as a tool of enforcement of
private rights. Many an observer has therefore drawn the conclusion
that the Japanese legal consciousness is not “contract-centered”. Most
often the discrepancy between the statutory law and its use and
application is cited as an example.
Some of the most important characteristics of contracts in traditional
Japan have been described earlier and need not be repeated here.
Suffice it to say that the fundamental principles of freedom of contract
and equality of the contracting parties before the law were imported
from the West into a society where, in the words of John Haley,
“Neo-Confucian imperatives of loyalty and filial piety precluded any
conception of a litigant’s assertion of a claim as a legal right to be
enforced by a neutral arbiter.”25 However, this author would like to
take exception to the notion that the nature of modem contract was
insufficiently understood in Japan. Rather, it would appear that the
Japanese saw, and to a certain extent continue to see a contract as
more than just an expression of will by two or more parties that is
intended to produce an effect under private law.
With regard to the fundamental principle of the freedom of contract,
the most important piece of pre-Civil Code legislation is without doubt
the “Rules for the Interpretation of Contracts” (Keiyakusho kaishaku
kokoroe) of 1877. In this document the Ministry of Justice stressed the
necessity to interpret a contract according to the intention of the
parties to the extent that this was possible.26 However, as early as
25
John Owen Haley, Authority Without Power: Law and the Japanese Paradox (New
York: Oxford University Press, 1991), p. 82.
26
A summary of the provisions of this document in Japanese can be found in
Hosokawa (note 6), p. 174, an English version is in Ishii (note 9), pp. 611–612.
246 civil code
1872 a government edict stipulated that servants, wage laborers and

the like should be free to enter contracts of employment and to leave
such relationships.27 It was this particular kind of contract, namely
the contract of employment that had traditionally implied the great-
est degree of inequality of the contracting parties and had severely
circumscribed the freedom of action of the “junior partner” in such
a deal. Over the course of the Meiji period, courts were increasingly
likely to reinforce the provision of contracts and to stress the principle
that judicial action should as a matter of principle try to avoid over-
riding term of contracts brought before the courts.
In the New Civil Code the provisions governing contracts in gen-
eral are arranged in subsections dealing with the “Formation of
Contracts” (keiyaku no seiritsu, Arts. 521–532), “Effect of Contracts”
(keiyaku no kòryoku, Arts. 533–539), and “Rescission of Contracts”
(keiyaku no kaijò, Arts. 540–548). For a contract to come into being
it is necessary that an offer be made by one party and be accepted
by the other. Perhaps the most intriguing provision with regard to
the formation of contracts is provided in Article 526. It states that
a contract between persons at a distance (kakuchisha) comes into exis-
tence with the dispatch, rather than the receipt of the acceptance
notice. In contrast, according to Article 97, a declaration of inten-
tion inter absentes is considered valid upon receipt by the other party.
This peculiarity has been interpreted as a compromise solution aris-
ing out of a dispute between the drafters,28 but it clearly reflects the
provision of Anglo-American contract law as well.
The subsection dealing with the effect of a contract distinguishes
between bilateral contracts (sòmu keiyaku) and contracts made for the
benefit of a third person (daisansha no tame ni suru keiyaku). A bilateral
contract is most commonly an agreement over the exchange of one
thing for another; in other words it creates two obligations that are
mutually dependent on each other. According to Article 533 each
party of such a contract may refuse performance until the other one
tenders performance of his own obligation. If a transfer of a real
right in a specific thing (tokutei butsu, cf. Art. 401) is involved, the
code follows Roman law tradition by assigning responsibility for risk
of damage (kison) or loss (messhitsu) to the creditor (Art. 534). Of
27
The text of this edict can be found in Hosokawa (note 9), p. 218.
28
See Ishii (note 9), pp. 612, 646.
course this does not apply when the debtor is clearly at fault. In
other cases, i.e. where no transfer of real rights is intended, the loss
falls on the debtor if neither party is at fault (Art. 536). These pro-
visions followed the example set by the Old Civil Code, except that
the new code did not recognize a partial right of the debtor in the
thing even if he had already partially fulfilled his obligation. In cases
of contracts benefiting a third person, the right of this person comes
into existence with his expression of intention to take advantage of
the contract (Art. 537). This right cannot subsequently be modified
or extinguished by the original parties to the contract (Art. 538).
Rescission of a contract is generally possible either based on specific
provisions in the contract or due to non-performance or impossibility
of performance of the obligation in question (Art. 540). The code is
of course only concerned with the latter of the two possibilities, since
rescission by virtue of contract is by definition beyond the purview
of the legislator. The reason for the rescission has no impact on its
effect. Generally speaking, the New Civil Code gave considerably
greater leeway to the parties than the Old Civil Code. Whereas the
old code considered a contract rescinded when all the conditions for
rescission had been met or when the court effected such a rescission,
the new code considered a simple declaration of intention sufficient
(Art. 540). Furthermore, the old code had relegated to the courts
the right to set a grace period during which performance could be
demanded from a defaulting party. Article 541 of the new code left
this matter to the discretion of the injured party as well. Rescission
would then occur if the party at fault had not performed within the
time period set by the other party. Rescission of a contract normally
leads to the restoration of conditions as they existed before the con-
tract was concluded. However, the question is who is responsible for
restoring the original conditions? The Old Civil Code had stipulated
that this was the responsibility of the parties themselves, each party
was supposed to restore itself to the original position. In other words,
if a contract of sale was rescinded for non-payment the injured party
would have to take steps to claim the return of the item, the debtor
was in no way obliged to initiate the return. According to the new
code, the parties were required to restore each other to their former
position (Art. 545). Overall it can be said that the new code man-
aged to protect the interests of contracting parties better than the
old code had done, while at the same time providing maximum dis-
cretion and contract autonomy.
248 civil code
3.3.5.2. Gifts
A gift (zòyo) as defined by the Civil Code is a gratuitous contract
(mushò keiyaku), i.e. a contract concluded to the exclusive benefit of one
party. According to Article 549 a gift takes effect with the expression
of intention by the donor (zòyosha) and the acceptance by the donee
( juzòsha). The code regulates only gifts during lifetime, gifts that are
to take effect upon the death of the donor are considered legacies
and are dealt with in the law on succession. The code provides for
the revocation of gifts by either party, with the exception of com-
pleted parts of the performance and of gifts in writing (Art. 550).
Although gifts played a tremendous social role in traditional Japan
(and continue to do so today), it should be emphasized that from a
legal point of view most of these customary gifts do not represent
zòyo in the sense of the civil law. Since in practice many such gifts
require return gifts, are subject to conditions, or are given in expec-
tation of a return benefit, they are not truly gratuitous.
Needless to say, gifts were not the subject of any legislative efforts
either in traditional Japan or in the early Meiji period. The Old
Civil Code included provisions on gifts in the section on acquisition
of property. According to these provisions, a notary instrument was
needed to make a gift effective under law. The new code did away
with this particular requirement.
3.3.5.3. Sale
The Civil Code defines the sale (baibai ) as a contract by which a seller
(urinushi ) transfers a property right to a buyer (kainushi ) in return for
a certain sum of money (Art. 556). The section of the code dealing
with rules regarding sales is subdivided into subsections dealing with
general provisions (Arts. 556–559), the effect of a sale (Arts. 560–578),
and repurchase (kaimodoshi, Arts. 579–585).
Generally speaking, the code allowed the transfer of any property
right to another person in return for money, and in practice many
rights that are not purely property rights are transferred in this fash-
ion. In traditional Japan, the rights of disposal of property had been
circumscribed, especially with regard to landed property. Since land
constituted the tax base, the government was naturally reluctant to
sanction the transfer of rights over land from one person to the
other. In addition, property rights often overlapped or were not
clearly defined, such as for example the rights a peasant might have
over land registered in his name. The sale of arable land was in
principle forbidden, but this prohibition covered only so-called “per-
manent sales” (eidai baibai ). Sales for a limited time period (nenki uri )
were legal, in effect such a “sale” was a mortgage or a loan with
collateral. However, if the seller failed to redeem the property with
in the time period stipulated in the contract the property right passed
to the buyer and the sale was for all intents and purposes perma-
nent. The Meiji government did away with the restrictions on sale
of land in 1872, but contracts over conditional sales of both land
and other, movable, property continued to be concluded. For the
most part the conditions concerned time periods for re-purchase as
determined by local customary law. Overall it can be said that many
of the elements of modern sales contracts had been developed in
traditional Japan, and consequently the provisions of the Civil Code
reflected customary law to a considerable extent.
According to Article 556, an agreement between the parties was
sufficient to effect a sale. No specific form was required for a con-
tract of sale to become effective. Local customary law had placed
certain restrictions on the contracting parties especially regarding the
sale of immovables. Many of these provisions can be found in the
compilation “Collection of Civil Customs of the Nation” (Zenkoku
minji kanrei ruishò ) of 1879. For example, some towns required that
an official seal be affixed to a sales contract in order for the property
right to be transferred. The cost of the official seal was often tied
to the agreed upon purchase price.29 It was, therefore, required to
state the purchase price in the contract. The Meiji government also
issued edicts specifying the form of sales contracts, although this was
most likely done in order to simplify court proceedings. However,
from 1875 onward parties were generally allowed to draw up a con-
tract in whatever form suited their needs.
Article 557 reflects traditional customary law in stating that a seller
is required to refund to the buyer twice the amount of earnest money
in order to rescind the contract, “Earnest money” (tetsukekin) had
been commonplace in traditional Japan. In case a previously agreed
upon contract was rescinded by the buyer, any earnest money paid to
the seller was forfeited. Conversely, if the seller rescinded the contract,
he was required to refund twice the amount of the earnest money to
the seller. Thus earnest money was used as an insurance against breach
29
For more examples see Hosokawa (note 6), p. 220.
250 civil code
of contract. It also functioned as a deposit towards the purchase

price and was thus taken into consideration when payment was made.
The effects of a sale as covered in the New Civil Code are basically
the seller’s obligation of warranty and the buyer’s obligation to pay
the purchase price. The bulk of the provisions related to warranty
deal with the concept of “warranty against eviction” (tsuidatsu tanpo,
Arts. 560–564, 567), while only Articles 565 and 570 deal with war-
ranty against defects (kashi tanpo). Both forms of warranty had been
known in pre-modern Japan, although a warranty against eviction
was, due to the convoluted nature of property rights, not as impor-
tant as it would become in modern times. A warranty against evic-
tion is by definition the responsibility born by the seller to transfer
a sound title to the purchaser, a title that is unencumbered by the
rights of other persons on the same thing. Needless to say, such a
state of affairs was difficult to achieve especially in the case of a sale
of land in traditional Japan. The Civil Code required that the seller
acquire the right of another person if that right was made the sub-
ject of a sale (Art. 560), while the old code had not recognized such
a concept. The rest of the provisions of the new code dealt with sit-
uations in which the contract could be rescinded due to the failure
of the seller to furnish a clean title.
The basic provision stating that the buyer was entitled to demand
damages or to rescind the contracts if the thing bought turned out
to be defective (Arts. 566, 570) was taken from the Old Civil Code.
It should be noted that the buyer was entitled to rescind the contract
only if the defect was severe enough to prevent the buyer to realize
the aim of the contract. Customary law dealing with the issue of defects
and damages was varying widely from place to place. In some regions
the seller was in principle held responsible for defects of the thing.
If defects in quality or quantity became apparent only after the deliv-
ery, the buyer was assumed to have behaved negligently. Good faith
was the determining factor if the buyer demanded a refund; if the
seller was unaware of the defect the buyer was left to bear the loss.30
Rights of repurchase, covered in special subsection in the Law of
Contracts also had a long tradition in Japan. Since many sales, espe-
cially sales of immovables had by necessity been conditional sales,
they included a clause on the “return of the original thing” (honmotsu
gaeshi ). Although this was especially important in cases when arable
30
For examples of such provisions from local customary law see ibid., p. 221.
land had been the subject of the sale, in principle movable property
could be redeemed as well. In cases of conditional sales, it was not
always clear when the real right over the things was actually transferred
from one party to the other. If customary law provided for a relatively
simple process of repurchase, e.g. by refunding the purchase price and
possibly an amount of money exceeding the original purchase price,
the real right was apparently transferred only upon completion of
the time limit set for repurchase in the original contract. Time limits
set for repurchase were of course much shorter in case of movables,
normally a number of days, than in case of immovables. In the latter
event, limits of five to ten years seem to have been common.
Two examples from the “Collection of Civil Customs of the Nation”
may illustrate the wide variety of customary law governing the repur-
chase of arable land.31 In Izumo province (present day Shimane pre-
fecture) the redemption of a piece of land sold for a specific time was
possible, if such a clause with a time frame was written into the
contract. If the seller failed to redeem within the given time frame, the
land in question became the buyer’s property. During the period set
for redemption the taxes were the responsibility of the seller. The buyer
did have a right to interest. It is clear that in this case the real right
in the land was not transferred to the buyer until the period for
redemption was over. In fact, the land might not actually have changed
hands in practice, thus making this arrangement more akin to a
mortgage than a sale.
In contrast, custom in Kaga province (present day Ishikawa pre-
fecture) stipulated that if arable land had been sold for time period
of 5 to 10 years and funds were available at the maturity date, the
seller could redeem the land by handing over the original payment.
Moreover, interest was not required since the buyer had had the
use of the land and the benefits from the harvest.
This particular solution is strikingly similar to the one provided for
in Article 579 of the Civil Code. Here too the interest on the purchase
money and the fruits of the land are considered to cancel each other.
The code also set maximum time limits for repurchase, ten years in
cases were there was a clause in the contract, and five years where
there was none (Art. 580). The ten year limit seems to have been
more in agreement with existing custom than the shorter five year
31
See ibid., pp. 223–224.
252 civil code
period provided for in the Old Civil Code. It should also not go
without mention that the new code restricted rights of repurchase
to immovables only (Art. 579), thus leaving similar arrangements for
movable property to the discretion of the contracting parties.
3.3.5.4. Exchange
In a slight variation from the structure of the German BGB the Japanese
Civil Code assigns a separate section to the issue of “Exchange”
(kòkan). Having stated earlier (Art. 559) that the provisions on sales apply
correspondingly to other contracts with consideration, the drafters
simply stated in the one article dealing with exchange (Art. 586) that
the essence of an exchange is the transfer of property rights other
than the ownership of a sum of money.
3.3.5.5. Loans for Consumption

Loans (taishaku) are treated in the Japanese Law of Obligation in
three different categories, namely loans for consumption (shòhi taishaku,
Arts. 587–592), loans for use (shiyò taishaku, Arts. 593–600), and hiring
of things (chin taishaku, Arts. 601–622). Loans for consumption are loans
of things of which the borrower can dispose at will. The borrower
is obligated to return a thing or things of the same class, quality and
quantity, having consumed what was originally borrowed. Such loans
can be for money or perishables, with or without interest. According
to Article 587 of the Civil Code, a loan for consumption takes effect
upon receipt of the item or items in question and should thus be
considered a real contract. The code does not make any provisions
in this section for interest; the provisions of Article 404 in the chap-
ter on General Provisions apply. Nevertheless it has become necessary
to protect the interests of the borrower by special legislative acts,
such as for example the Law on Limits of Interest of 1954.
As has been described earlier, in the Edo period, all loans had been
classified as either “main cases” (honkuji ) or “money cases” (kanekuji ).
The existence of collateral made a loan subject to “main case” pro-
cedure, while interest bearing loans were classified as “money cases”.
This procedural distinction and the concomitant bias against com-
mercial transaction were carried over into the early Meiji period.32
32
For a more detailed description, see sections 3.3.1. and 3.3.2, above.
3.3.5.6. Loans for Use

This category of loans is distinguished from the preceding one by
the fact that the borrower is required to return the specific thing
borrowed to the lender upon completion of the term agreed upon
(Art. 597). The loan becomes effective upon the delivery of the thing
in question (Art. 593). The borrower is entitled to the profits received
from the use of the thing (Art. 594) and responsible for expenses
arising from the use (Art. 595). Loans for use are not inheritable
(Art. 599).
3.3.5.7. Hiring of Things

Article 601 of the Civil Code defines the Hiring of Things as an
agreement between two parties over the use of a thing without the
transfer of real rights in the thing. The hirer (chinshakunin) agrees to
pay rent to the lessor (chintainin) in return for the use of the thing and
the taking of the profits from this use. The provisions of the code
apply to the hiring of land, buildings, and movables alike, however,
in judicial as in everyday life practice the hiring of immovables is
vastly more significant. In the Meiji period, the problem of tenancy
on arable land was one of the most pressing social issues, whereas
in postwar Japan real estate speculation and apartment rents became
the center of attention of legislators. The significance of this section
of the code lies in the fact that the rules provided here are fundamental
to these important social and economic problems.
The historical development of the land and building leases has
been discussed in an earlier chapter and shall not be repeated here.33
However, an issue of interest from the point of view of comparative
law deserves mention. According to Article 605 a registered hiring of
an immovable takes effect even against a third person who has required
real rights subsequent to the registration. This represents an exception
to the general rule that placed the hiring of things in the category
of obligations. As an obligation, a hiring would normally only have
an effect on the parties directly involved, but not against third persons.
This provision thus protects the rights of a tenant (hirer) in case the
owner (lessor) of the property sells it to a third person.
In contrast, the Old Civil Code considered the hiring of things
a real right that by its very nature could be set up against third
33
See chapter 3.2.
254 civil code
persons. The new code, however, following the example of the BGB,
transformed the hiring of things into an obligation. It can be argued that
this move also brought modern statutory law more into accord with
traditional custom. Tenancy of arable land, for example had always
been a curious admixture of rights and obligations, a fact that made
its modern classification as an obligation seem more logical than its
designation as a real right.
3.3.5.8. Hiring of Services

The Hiring of Services is termed “koyò ” in the Civil Code and general
provisions for this type of contract are provided in Articles 623–631.
A contract for the hiring of service takes effect when one party agrees
to perform services and the other party agrees to pay remuneration
for these services.
It is this type of contract that in traditional Japan saw the most
pronounced inequality of the parties involved. In the Edo and early
Meiji periods the word used for hiring of services was “hòkò ”, a term
that originally denoted the service a vassal renders to his lord.
Relationships of employment and apprenticeship thus frequently had
characteristics of indentured service, if not outright slavery. Terms
of service were not limited, and many people, prostitutes in particular,
might find themselves bound to an employer for life. Penal law pro-
vided for harsher punishments for crimes committed by employees
against their employers than in the opposite case. This state of affairs
continued into the early Meiji period and is reflected in the first major
piece of legislation issued by the Meiji government in 1870, the “Outline
for a New Criminal Law” (shinritsu kòryò ). This law provided for pun-
ishments for absconding servants and apprentices.34 An order of the
Grand Council of State from 1871 mandated that employers obtain
personal references for servants from character witnesses.35 This edict
did not introduce anything new, however, it just reinforced existing
customary practice. However, a year later, in 1872, the government
made the first major step towards introducing the principle of freedom
of contract into labor relations, by issuing the famous “Emancipation
Order for Prostitutes” ( geishògi no kaihòrei ) as Edict #295.36 This edict
prohibited the sale of humans into lifetime or shorter time servitude,
claiming that such practice was contrary to human morality. Despite
34
It remained in force until 1882.
35
36
For a summary of its provisions see Hosokawa (note 6), pp. 3, 229.
its title, the edict applied to all relationships of employment. It set

the time limit on apprenticeships for 7 years and for normal indus-
trial labor for 1 year. However, the parties could agree to extend
those limits. The edict did not deal with the issue of guarantors and
character witnesses, though existing custom provided for a significant
role of sureties in the creation of a relationship of employment.
Apprenticeship continued to be considered separately from regular
employment in the Old Civil Code. The new code simply treated
apprenticeship as a type of employment. Interestingly enough, Article
626 of the New Civil Code recognizes the validity of a contract for
lifetime employment in principle. However, each party is free to
rescind such a contract after five years with a three-month advance
notice. Furthermore, contracts are automatically considered extended
if services continue to be performed after the time limit of the con-
tract has been reached (Art. 629).
It should be noted that many of the provisions of the Civil Code
regarding the hiring of services have become obsolete due to the
introduction of new labor legislation especially during the American
Occupation. These developments will be described in detail in the
chapter on Labor Law below.
3.3.5.9. Contract Work

The New Civil Code defined the contract of work as a contract
between a party ordering work (chùmonsha) and a party agreeing to
perform the work (ukeoinin) for remuneration (Art. 632). The Old Civil
Code made a distinction between the case of the contractor supplying
the material and the ordering party supplying such material. The
former was construed as a sale subject to a condition (the completion
of the work) while the latter was a contract for work. In the new
code such a distinction was not made. The difference between this
type of contract and the hiring of services is that the object here is
the result of the labor, while in the hiring of services it is the labor
itself. Consequently, remuneration is conditional not on the amount
of time spent in completion of the work but upon the delivery of
the result (Art. 633). The employer has the right to rescind the con-
tract prior to completion by paying compensation for damages (Art.
641), while the contractor is liable for defects (Art. 638). Generally
the provisions for contract work in the new code differ only slightly
from those of the old one, with the exception of the question of
material supplies as mentioned above. The Meiji government does
256 civil code
not appear to have dealt with the issue of contract work in edicts
or directives prior to the promulgation of the first civil code draft.
3.3.5.10. Mandate
The provisions concerning mandates (i’nin) in the New Civil Code
follow those of the German BGB very closely. The most notable
exception is that in Article 643 which defines a mandate as a contract
between one party who commissions the other to perform a juristic
act (“mandator”, i’ninsha) and the other party who agrees to do so
(“mandatory”, juninsha) no mention is made that this service shall be
provided without remuneration. In fact a reward for the services may
be paid, but according to Article 648 remuneration must be agreed
upon in a separate contract. The code furthermore provides that the
subject of a mandate need not be the execution of a juristic act (Art.
656). The provisions of the code deal for the most part with the
duties of mandator and mandatory, especially with regard to the
responsibility for expenses and other monetary matter.
As an antecedent in customary law to the mandatory the inter-
mediary or go-between should be mentioned. A go-between was fre-
quently utilized to initiate a relationship between parties who might
later on enter into a contractual relationship. An intermediary was
required in traditional law to bring a lawsuit. Since the Meiji
Restoration judicial procedure no longer required the services of an
intermediary, consequently the government did not deal with this
institution in particular edicts or guidelines. On the other hand, the
role of go-betweens in such matters as arranged marriages was not
normally the subject of judicial attention.
3.3.5.11. Deposit
According to Article 657, a contract of deposit (kitaku) takes effect when
one party (the depositary, jukisha) receives a thing from the other party
(the depositor, kitakusha) and agrees to keep it in his custody. The
rules for deposits in the New Civil code make no distinction between
different categories of objects of deposits, the same rule applied to
movables and immovables, things with a clear title and things under
dispute. The depositary is responsible for the safekeeping of the
deposit (Art. 659) and for notifying the depositor of any claims in
regard to the thing deposited (Art. 660). The depositor is responsible
for the compensation of damages arising from the nature or from

defects of the deposited thing (Art. 661). Overall the provisions of
the New Civil Code follow the spirit if not the letter of the BGB.
In the Edo period deposits had been known and had been classified
as “main cases” due to the absence of interest. Early Meiji period
legislation severely restricted the admission to the courts of disputes
arising from deposits. For example after 1877, no cases involving
deposits contracted before 1857 were to be heard.37 The “Outline
of the New Criminal Law” of 1870 provided for criminal liability
of the depositary in cases where he was at fault.
3.3.5.12. Associations
Since the topic of associations or partnerships (kumiai ) will be cov-
ered in greater detail in a later chapter,38 this section will be limited
to a very brief characteristic of the role of associations in the New Civil
Code. The code defines associations as the result of a contract in
which parties agree to make a contribution and to carry out a com-
mon undertaking (Art. 667). The definition is thus broader than the
one found in the Old Civil Code, which required that associations
have profit as their objective. An association or partnership does not
acquire the status of a juridical person, i.e. it does not by itself pos-
sess rights or obligations resulting from contracts. Consequently, there
must be an acting or managing partner who acts on behalf of the
association. This too is different from the provision of the old code
according to which an association could become a juridical person by
an expression of intention. As for the distribution of profits and losses,
Article 674 stipulates that the rate of distribution is determined in
proportion to the contribution of each partner. By and large the
provisions of the new code on associations resemble those of the BGB.
Although the term kumiai was in use in traditional Japan, as a
premodern precursor to associations the merchant associations (kabu
nakama) of the Edo period deserve mention. These were monopolistic
organizations that operated collectively in the interest of their members.
Their aim had been to ensure a minimum of government interference
in their respective field of business activity. Since they had been char-
tered as monopolistic organizations by the authorities, they did make
37
38
Chapter 4.
258 civil code
payments to the authorities in return for privileges.39 Kabu nakama do

share some characteristics of associations as defined in the Civil Code.
They had a common objective, bylaws, and elected management. How-
ever, they were disbanded soon after the Meiji Restoration and had
thus very little, if any impact on the legislative process in the Meiji era.
3.3.5.13. Life Annuities

Both the old and the new codes contained provisions on life annuities
(shùshin teikikin) which were defined as gratuitous contracts by which
one party agrees to make periodical payments to the other or a third
party until the death of himself, the other party, or the third per-
son (Art. 689). Although similar instruments can be assumed to have
existed prior to the promulgation of the Civil Code, they had not
been the subjects of legislative efforts of the Meiji government.
3.3.5.14. Compromise
Articles 695 and 696 of the code form the section on compromise
(wakai ). For all intents and purposes this section can be said to state
the obvious, especially in a legal environment that had traditionally
relied on conciliation as an important means of conflict solution.
References to the institution of conciliation (mandatory and otherwise)
have been made throughout this chapter and shall not be repeated here,
if only because this discussion belongs more properly to the chapter
on Civil Procedure. It should be noted, however, that strictly speaking
the compromise of the Civil Code is different from the compromise
in the Code of Civil Procedure (Art. 136), insofar as the latter is a
method employed by a judge in order to solve a dispute. Wakai in the
sense of the Civil Code, in contrast, is a contractual agreement
effecting a private compromise between the parties involved.40
3.3.6. Business Management (Arts 697–702)
When the drafters of the New Civil Code dealt with provisions on
Business Management ( jimu kanri ), it was decided to separate this
39
For a brief discussion of kabu nakama see Steenstrup, pp. 148–149.
40
On the definition of compromise see Henderson, Conciliation, pp. 186–187.
topic from the section on unjust enrichment in the Old Civil Code.
They also went further than the drafters of the BGB in making
Business Management a separate (if brief ) chapter of the Law of
Obligations. The chapter deals with the consequences of a situation
where one person (the manager, kanrisha) manages the business of
another (the principal, honnin) without being asked to do so, be it
out of kindness or in response to an emergency. By the logic and
nature of things, assumption of another person’s business affairs with-
out express authorization does not necessarily imply unjust enrich-
ment. On the other hand, such a situation is likely to lead to the
creation of new obligation, hence the treatment of the topic in a
separate chapter. Articles 697–702 stipulate the obligations of the
manager first and foremost. The most important and general oblig-
ation of the manager is to conduct the business in manner best cal-
culated to insure the interests of the principal (Art. 697).
There does not appear to have been such a separate category in
either statutory or customary law prior to the promulgation of the
Civil Code. The provisions of the code are essentially the same as
those of the BGB.
3.3.7. Unjust Enrichment (Arts. 703–708)
Unjust Enrichment ( fùtò ritoku) occurs according to Article 703 when

a person derives benefit from the property or labor of another and
thereby causes a loss to the other person. Generally, the person
enriched by unjust means is liable to make restitution to the extent
of the still existing benefit. In other words, if no benefit was derived,
no restitution needs to be made. This chapter also covers scenarios
in which the person enriched is not required to make restitution,
such as prestation made on a non-existent obligation (Art. 705) or
for an illegal cause (Art. 708). Although the provisions of this chap-
ter can be found in a fairly similar form in the German BGB, it
should also be noted that Meiji period judicial practice started to
recognize constructs such as prestation for an illegal cause compar-
atively early on its own accord.41
41
See Hosokawa (note 6), pp. 234–235 for excerpts from relevant court decisions.
260 civil code
3.3.8. Unlawful Acts (Arts. 709–724)
The last chapter of the Law of Obligations deals with Unlawful Acts
or Torts ( fuhò kòi ). The provisions of this chapter deal with the extent
of and limitations on liability of persons for the intentional or neg-
ligent violation of the rights of others. The general clause of Article
709, which states that, “a person who has intentionally or negligently
violated the rights of another is bound to make compensation for
any resulting consequences” is derived directly from the Code civil.42
However, legal practice in the Meiji period did start to develop a
concept of unlawful acts.43 The provisions of Articles 710 and 711
stipulate that liability is not limited to compensation for damages of
property, but extends to injuries of person, liberty, and honor and to
relatives of a person killed. Incapacitated persons are generally released
from liability, however, the legal guardian or supervisor is held
accountable if he was negligent in his supervision (Art. 714). The
same goes for acts perpetrated by an employee in the execution of
the business of his employer, in this case the employer is held liable
(Art. 716). Liability for damage caused by structures rests first with
the possessor, the owner is held liable only if the possessor can prove
due diligence (Art. 717). Interesting is further the provision of Article
721, which states that an unborn child is regarded as already born
with regard to claims for damage compensation.
With regard to the problem of liability, several more recent devel-
opments deserve mention. The first is the introduction in 1947 of a
law governing the liability of the state and its organs and represen-
tatives. This law modifies the provisions of the Civil Code somewhat.
Public servants are thus not personally liable for damages they have
caused in execution of their duties, the state is. The state is furthermore
prevented from pleading due diligence, but can demand restitution
from the official in cases of intent and gross negligence.44
A second important development is the recognition in judicial
practice of the concept of strict liability (mukashitsu sekinin), i.e. the lia-
bility to compensate for damages when there was no intent or neglect,
or liability without fault. The Civil Code provides only for liability
based on negligence (kashitsu sekinin). This construct was deemed
42
See Igarashi (note 15), p. 108.
43
Hosokawa (note 6), pp. 235–237 provides evidence for that fact.
44
See Igarashi (note 25), p. 112.
insufficient in light of the development of chemical and other indus-

tries in postwar Japan that created dangers to society that were not
attributable to negligence or intent. A proliferation of pollution related
diseases45 in the decades of high-speed economic growth gave rise to
a series of widely publicized court cases that brought the public’s atten-
tion to matters of liability for these obvious damages to the envi-
ronment. As a result of these cases the doctrine of strict liability was
applied to the defendants, major industrial corporations. Victims do
not need to prove negligence or intent on part of the perpetrators,
instead in pollution cases the burden of proof is on the defendant.
Legal scholarship has been trying to identify a theoretical foundation
for strict liability. One theory emphasizes the responsibility for com-
pensation, claiming that a party profiting from an activity is liable
for damages resulting from that activity even if it is not unlawful.
Another theory holds that anybody creating a danger to society for
whatever reason is liable for damages.
Legislation has been also used to provide a framework for helping
victims of pollution related diseases and for holding polluters account-
able. Since 1973 there is a “Pollution related Health Vitiation Com-
pensation Law” (Kògai kenkò higai hòshò hò ), although its effectiveness has
been reduced by subsequent revisions.
The principle of strict liability is also employed in cases of product
liability, especially with regard to cases of massive food poisoning and
the like.
In short, of all chapters of the Law of Obligation as originally
promulgated in 1896, the one on “unlawful Acts” has perhaps under-
gone the farthest-reaching development.
45
For example the Minamata disease, Yokkaichi and Kawasaki asthma, to name
but a few.
262 civil code
3.4 Family Law
Petra Schmidt
1. Introduction
During the Tokugawa period (1600–1868) the extended family or

‘house’1 (ie) formed Japan’s smallest social unit, usually comprising
three generations of one family. Japanese social anthropologist Ariga
Kizaemon described this institution as follows: A ‘house’ is being
considered existing uninterruptedly from the past into the future,
irrespective of the birth or death of its members. The ancestors and
the descendants are mutually linked by the idea of family genealogy,
which is not understood as a relation merely based on blood lineage
and succession, but rather as a number of relations, which are nec-
essary for the maintenance and continuation for the ‘house’ as an
institution.2 On top of the ‘house’ stood the head of the ‘house’,3
endowed with vast powers and authority, and all rights belonging to
the head of the ‘house’ such as the continuation of the name of the
‘house’,4 the administration of the ‘house’altar and the seal of the
‘house’, passed on to his designated successor. Even when a ‘house’
had no sons, but daughters and when the head of the ‘house’s’ wife
was alive, it was considered not to have an heir, for upon marriage
daughters usually entered their new spouse’s ‘house’. If no heir existed,
the ‘house’ faced the threat of extinction. To prevent such a disas-
trous event, if was quite customary for an heirless ‘house’ to adopt
1
The origins of the house or family system in Japan are somewhat obscure.
Although some contemporaries like N. Hozumi saw the origin in ancestor worship,
other authors regarded it as a product of various influences, such as Chinese civi-
lization and feudalism. The latter one seems more likely because of the confucian
character of the house; see N. Hozumi, Ancestor Worship and Japanese Law (Tokyo
1901), J.H. Gubbins, The Civil Code of Japan, Part II (Tokyo 1899) IV. A very
detailed study of the house system can be found in R. Ishii, le to koseki no rekishi
[The History of the House and the House Register] (Tokyo 1981) and in H. Idota,
Kazoku no hò to rekishi [Law and History and the Family] (Kyòto 1993) 13 et seq.
2
S. Linhardt, Familie [Family] in: H. Hammitzsch [ed.], Japan-Handbuch
(Wiesbaden 1981) 546.
3
koshu
4
kamei
family law 263
a successor.5 It was also not uncommon, to adopt the husband of a

‘house’s’ daughter and confer her right to succession on him.6
2. The Compilation of the Meiji Civil Code 7
To free Japan from the disgrace of the unequal treaties which the
country had concluded with sixteen western powers in the last years
of the Tokugawa period, and to end extraterritoriality, the modernization
of Japan’s legal system, which was regarded as incomplete by the
Westerners, was one of Japan’s predominant tasks during the early
years after the Meiji Restoration.8 One of the first projects undertaken
by the new government was the compilation of a Civil Code. Since
the French ‘Code Napoleon’ had been known in Japan since the
late years of the Tokugawa period as a masterpiece of Western leg-
islation, the Meiji government in 1869 ordered its translation as a
first step towards the compilation of a Japanese Civil Code.9 As early
as 1870, conferences on the compilation of such a Code were held
within the Great Council of State’s ‘Bureau for the Investigation of
Institutions’.10 In July 1871 the Bureau had produced the ‘Civil Code
Resolution’.11 In close resemblance to its French model, this ‘Resolution’
comprised five books on the Enjoyment and Loss of Civil rights, on
Acts of Civil Status, on Domicile, on Absentees and on Marriage.
Due to an institutional reform within the Great Council of State,12
the Chamber of the Left13 was established in July 1871. The following
5
F. Tappe, Soziologie der japanischen Familie (Sociology of the Japanee Family)
(Münster 1955) 16–17.
6
T. Maeda, Ane Katoku (Succession by the Eldest Daughter) (Òsaka 1976) 1;
N. Hozumi, The New Japanese Civil Code as Material For the Study of Comparative
Jurisprudence (Tokyo, Saint Louis 1904) 5; for details also see ‘Law of Succession’.
7
For a detailed study of the compilation of the Meiji Civil Code see: R. Ishii,
Minpò-ten no hensan (The Compilation of the Civil Code) (Tokyo 1979).
8
H. Honda, Sòzoky to josei no chii 1–3 (Succession and the Position of Women,
1–3) (Kyòtò 132); see also M. Tokichi, The New Civil Code of Japan: 92 The
Arena 64, 64 (1897).
9
R. Ishii, Japanese Culture in the Meiji Era, Volume IX, Legislation (Tokyo
1958) 578.
10
Dajòkan seido-kyoku; see Hozumi, note 6, at 6.
11
Minpò ketsugi; R. Ishii, Minpò ketsugi ni tsuite [Concerning the Civil Code
Resolution]: 29 Hòritsu jihò 86 (1957).
12
Dajòkan
13
Sa’in
264 civil code
month, the ‘Chamber’ merged with the ‘Bureau for the Investigation
of Institutions’. The ‘Chamber’ continued to work on a compilation,
and although its efforts were still based on French law, now tradi-
tional Japanese law and legal customs were taken into consideration
as well. Soon a number of drafts on ‘house’ headship, inheritance
and legacy, on adoption, guardianship and marriage were produced.14
Thereafter, from April 1872, work continued within the Justice
Department,15 and by July 1872 the ‘Revised Tentative Civil Code’16
had been completed. This draft was further developed until in October
of the same year Japan’s first comprehensive Civil Code draft, the
‘Imperial Civil Code Provisional Rules’,17 comprising 1185 articles,
was completed.18 Etò Shinpei, the Minister of Justice, in October
1872 opened a Civil Code conference, where Japanese and foreign
jurists continued deliberations, eventually producing the ‘Civil Code
Provisional Legal Rules’19 in March 1873. These rules, however, saw
no further development, mainly due to the fact that Etò took part
in the Saga Revolt of 1874 and, as a consequence, was executed.
Under Etò’s successor Òki Takatò, French law professor Gustave
Boissonade, a foreign advisor to the Justice Department, started lec-
turing on the Code Napoleon in June 1874. In 1875, a Committee
for the Compilation of the Civil Code was appointed, and in April 1878
a complete draft with 1820 articles was finished. This draft, however,
was hardly more than yet another translation of the Code Napoleon.
The next attempt was stated in 1880, again by Boissonade, who
submitted his draft to the ‘Bureau for the Codification of the Civil
Law’,20 which had been established within the Senate,21 in 1881.22 The
Bureau was abolished in 1886, and instead a ‘Law Investigation Com-
mission’23 within the Justice Department was established in 1887. This
committee completed its report in 1888; the new draft was submitted
to the Senate24 for deliberation and soon afterwards adopted. Unlike
14
R. Ishii, Sa’in minpò sòan 1 [The Chamber of the Left’s Civil Code draft]: 60
Kokka gakkai zasshi 27 (1946); Ishii, note 9, at 579.
15
Shihò-shò
16
Kaisaku miteibon minpò
17
Kòkoku minpò kari-kisoku
18
R. Ishii, Meihòryò minpò sòan [The Meihòryò Civil Code Draft]: 29 Hòritsu Jihò
1032 (1957).
19
Minpò kari-hòsoku
20
Minpò hensan-kyoku
21
R. Ishii, Meiji jùichinen minpò kenkyù 2 [ The 1878 Civil Code Draft, 2]: 30
Hòritsu jihò 704 (1958); Ishii, note 9, 580; Hozumi, note 6, at 6.
23
Hòritsu torishirable iin-kai
24
genròin
family law 265
the other books of the draft code, the books on family and succession
had not been compiled by Boissonade himself. Instead, the Japanese
commissioners signed exclusively responsible for these parts, although
their efforts had clearly stood under Boissonade’s influence and guid-
ance.25 The special features of the 1888 draft were described ‘to lie
in the point that while following, on the surface, legislative policies
determined politically and while extolling respect for [folk] customs
and ways, in fact it tried to regulate family relations in conformity
with the changes in property law since the Restoration. That is, it
can be supposed that the drafters settled two matters in advance, as
a core, which ran throughout the entire body of the draft. One was
to confirm the capacity of rights of a wife and family members, and
the other was to recognize an inheritable share of property for a
second and third son, etc., while at the same time preserving the
inheritance of the ‘house’ headship by the eldest son, to provide for
a system of property inheritance based on the death of a family
member and to recognize the institution of a community of income
system under a matrimonial property regime. Furthermore, both
stood in a supplemental relationship to each other, with the former
given the name and the latter given the substance.’26
On 27 March, 1890, the parts drafted by Boissonade—‘Property
in General’, ‘Means on Acquiring Property’, ‘Security Rights in
Personam and ‘Evidence’—were published as Law No. 28. The book
on ‘Persons’ and the part on ‘Succession’ of the book on ‘Means of
Acquiring Property’, which had been compiled by Japanese jurists,
were published on 16 October, 1890. The whole Code27 was to be
enforced on 1 January, 1893.28
25
Y. Tezuka, Meiji nijusannen minpò (kyù-minpò) ni okeru koshu-ken [The authority
of the head of house in the 1890 Civil Code (Old Civil Code)]: 26 Hògaku kenkyù
711 (1953); Ishii, note 9, at 581–2.
26
Y. Kawashima/N. Toshitani, Minpò ( jò) [Civil Law I]: M. Ukai [ed.], Kòza
Nihon kindai-hò hattatsu-shi [Collected Essays on the History of the Development of
Modem Japanese Law] (Tokyo 1958) 33 et seq.; transl.: K. Mukai/N. Toshitani,
The progress and problems of compiling the Civil Code in the Early Meiji Era: 1
Law in Japan 25, 55 (1967).
27
Hereafter ‘Old Code’.
28
Hozumi, note 6, at 7; the impression of a contemporary jurist about this Code
might be of interest here: “. . . the draft was a genuine French code, being a lit-
eral translation of the Code Napoleon in all parts excepting the part dealing with
the Law of Persons. The question may well be asked why it took the Commission
twenty long years to produce this imitation draft code when we know that the draft
of the Code Napoleon itself was completed within the short period of four months.
266 civil code
It would never see the light of day, however, since soon after the
publication of the Code, heated debates started among Japanese
lawyers and politicians. First criticism came from among those jurists
who had studied Anglo-Saxon Law at Tokyo University or in the
United States or Great Britain.29 This ‘postponement faction’30 de-
manded to postpone the Old Code and have it revised completely.
Those who had studied French law, on the other hand, demanded
the immediate enforcement of the Code.31
But in fact the battle had already been initiated in May 1889 by
the ‘Statement Concerning the Compilation of Codes’,32 published
by the ‘Bachelors of Jurisprudence Association’.33 The fears of the
opponents of the Old Code—especially of its parts on Family and
Succession—were epitomized in Hozumi Yatsuka’s famous 1891 work
‘If the Civil Code Appears, Loyalty and Filial Piety will Die’.34 The
discussion intensified with the postponement faction publishing their
‘Opinion for Postponement of the Code’s Enforcement’ the follow-
ing year.35 In this treatise, the Old Code’s opponents claimed that
this Code would destroy all moral relationships and norms, since it
was devoid of the thinking of the nation and therefore would throw
the whole society into total confusion. In response to these actions taken
by the opponents of the enforcement of the Old Code, the ‘Rule-
by-Law Association’36 published the ‘Opinion for the Code’s Immediate
Enforcement’.37 In this ‘Opinion’, the Old Code’s proponents asserted
that any delay in the enforcement would not only disturb the order
of the state and cause the breakdown of morals, but also jeopardize
the carrying out of the Constitution and thus prevent people from
The answer seems to be that the Commission spent almost this entire time in their
efforts to reconcile the principles of the French Law of Persons with the Japanese
laws and customs bearing on that subject.” see: Tokichi, note 8, at 66.
29
Tokichi, note 8, at 67 cites the opposition: “The draft Code was a blind imi-
tation of a foreign Code which itself was far from being free from defects. It
abounded in definitions, illustrations, and examples, and presented an appearance
more becoming to a text-book of law than the Civil Code of a great nation . . . It
made too many innovations upon the Law of Persons hitherto obtaining in Japan . . .”
30
enki-ha
31
‘Enforcement faction’ or dankò-ha; Hozumi, note 6, at 7; Tokichi, note 8, at
67 compared this dispute to the fight between Savigny and Thibaut.
32
Hòten hensan ni kansuru iken-sho
33
Hò-gakushi-kai
34
Minpò idete chùkò horobu
35
Hòten jisshi enki iken
36
Hòchi kyòkai
37
Hòten jisshi dankò no iken
family law 267
receiving complete protection of their rights. Meanwhile the codification

debate38 had spread into politics as well and as a result Murata
Tamotsu, a member of the House of Peers, submitted a bill to post-
pone the enforcement to the Third Imperial Diet in May 1892. This
bill was passed soon afterwards and the introduction of the Old Code
was postponed by Law No. 8 until 31 December, 1896.39 In 1893
a Codification Committee40 under Prime Minister Itò Hirobumi was
established by Imperial Edict. As representatives from different law
schools Hozumi Nobushige, Tomii Masaaki and Ume Kenjirò were
appointed to this committee to prepare a draft.41 Inquiries commenced
in May 1893. The commissionaries based their work on the pandecten
system, albeit collecting as many codes, statutes, and judicial reports as
possible. They adopted what seemed suitable, while at the same time
paying due consideration to traditional Japanese legal views and cus-
toms for the compilation of the books on Family Law and Succession.42
In January 1896 the books ‘General Provisions’,43 ‘Real Rights’44
and ‘Claims’45 were submitted to the Imperial Diet, there adopted and
in April promulgated as Law No. 89. The books on ‘Family’46 and
‘Succession’47 were submitted to the Diet in May 1898 and promulgated
as Law No. 9 in June that year. The whole Code went into force
as the Civil Code of Japan on 16 July 1898.48
2. Family Law in the Early Meiji Period
It is first of all noteworthy that during the Meiji period a standardization

of Family and Inheritance Law for all Japanese nationals had been
accomplished for the first time in Japanese history. Until the early
years of the Meiji era legal standards had differed according to the
38
Known as hòten ronsò or hòten sògi.
39
Z. Nakagawa, Chùshaku shinzokuhò 1 (Commentary on Family Law 1) (Tòkyò
1957) 3; Honda, note 8, at 133.
40
Hòten chòsa-kai
41
Hozumi, note 6, at 9–10.
42
43
sòsoku
44
bukken
45
saiken
46
shinzoku
47
sòzoku
48
Z. Nakagawa, Sòzoku (Succession) (Tòkyò 1964) 27.
268 civil code
social class a person belonged to, mainly being divided into regulations
for the nobility, for samurai and for commoners. It was only in 1877
that the stipends, which the samurai traditionally had received from
their feudal lords, were replaced by pension bonds, thus opening the
way for equal treatment of all classes before the law. It was, how-
ever, the previous set of standards for the samurai, which became
the basis for the legislation in the Old Code, taking precedence over
the more liberal ideas of French law.49
3.1. The ‘house’

During the Tokugawa period ‘houses’ both of samurai and of commoners
were defined as consisting of the head of ‘house’, his spouse and
their lineal descendants, as well as certain other relatives, who lived
together. The head of a samurai ‘house’ held considerable authority
in all ‘house’ and family affairs and was the legal and social repre-
sentative of the ‘house’, whereas in commoners’ families the head of
a ‘house’ and its members were rather bound by a moral relationship.
The basic composition of the ‘house’ did not essentially change
during the Meiji period. ‘Houses’ were for the first time registered
from 1868, still following the traditional distinction of nobility, samu-
rai, and commoners. The legal basis for the household later became
the ‘Household Register Law’50 of May 1871.51 The first registers
under this law were completed in 1872, including information on
the number of households within one district, the number of ‘house’
members, dates of births and deaths of ‘house’ members and records
of their egress and ingress to the district.52 The registration was essen-
tial for a ‘house’ to be given legal recognition.
Moreover it was essential for a ‘house’ to have a househead, who
possessed a variety of rights and duties. These included for instance
the right of ownership of all the property of the ‘house’,53 the worship
of the ancestors, but also the duty of support for the members of his
49
Yoshioka, note 29, at 11; Ishii, note 9, at 661.
50
Koseki-hò; aiming at the recording of all men liable for military service—uni-
versal conscription had been intoduced in 1870—every Japanese, except for mem-
bers of the Imperial Family, had to be registered.
51
H. Maki/T. Fujihara, Nihon hòsei-shi [History of Japanese Law] (Tokyo 1993)
276; H. Otake/H. Maki, Nihon hòseishi (History of Japanese Law) (Tòkyò 1987) 249.
52
Maki/Fujihara, note 50, at 276.
53
kasan
family law 269
‘house’. Since the genealogical line of a ‘house’ was perpetuated in

the paternal line, during the early Meiji period only a male could
become a head of ‘house’. However, since 1873 it had become pos-
sible for a woman, too, to take up such a position, but only temporarily
until a male head of ‘house’ could be found.54
The position as head of a ‘house’ was lost in case of death, merger
or extinction of a ‘house’, divorce of an adopted husband-heir or
dissolution of an adoption. Furthermore, a system of abdication or
retirement was not unknown. Commoners could abdicate freely at
any time, but according to Great Council of State Decrees Nos. 171
and 172 a head of a samurai ‘house’ had to be at least 50 years old
to retire or be disabled. But since ‘disability’ was defined rather broadly,
it served as an excuse to dispose of an unwelcomed or unable head of
a ‘house’. Thus in practice abdication was almost unrestricted. Abdica-
tion for family reasons and for the convenience of the ‘house’ was
also acknowledged, as was the abdication of a head of ‘house’ in
favour of his adoptive father or a natural son of his. Under certain
circumstances even abdication against the will of the head of a ‘house’
was possible. The ‘Hereditary Property Law for Peers’55 of 1872 stip-
ulated that a female head of ‘house’, who married or adopted a
male child, had to hand over her position to her husband or son.
According to the Great Council of State Decree No. 58 of 1875, a
minor househead had precedence over an adopted husband of his
mother or an adopted heir. Furthermore, a head of ‘house’ could
be forced to abdicate upon resolution of the Family Council. But if
such a resolution had been made on the ground of the mental ill-
ness of the head of a ‘house’ etc., either his consent or a court order
was necessary. Had the head of a ‘house’ disappeared or deserted,
the installment of a new head was possible after the elapse of two years.
Had a head of a ‘house’ committed a crime and had he therefore
been sentenced to imprisonment for more than one year, he could
be replaced only in case of extreme poverty of his ‘house’. In none
of the aforementioned cases was the househead’s consent necessary.56
During the Tokugawa period, the concept of individual property was
not known yet in Japan, and thus a ‘house’ member was not allowed
to own separate property. All property belonged to the ‘house’, and
54
Ishii, note 9, at 664.
55
Ka-shizoku katoku sòzoku-hò, Decree No. 28 of 1872.
56
Otake/Maki, note 50, at 250.
270 civil code
its members did not have the right to possess or use such property,
although the head of a ‘house’ could permit them to do so. It was
only after the Meiji Restoration that the Government began to award
commendable men with annuities or the like on grounds of personal
merit. Since such property or income could not be treated as prop-
erty of the ‘house’, the institution of private property of individuals
was established for the first time.57 However, if a member of a ‘house’
sold or purchased land of his own, he still needed the signature of
the head of his ‘house’ to do so. Furthermore any property which
had not been specifically registered in the name of a member of the
‘house’, was presumed to belong to the head of the ‘house’.58
As to family relations, besides the position and relations of the
members of a ‘house’, the ‘Outline of the New Criminal Law’59 of
1870 was the first Meiji period piece of legislation to classify relatives.
The Tokugawa-style classification of near relatives, distant relatives,
and relatives by affinity had been given up in favour of the traditional
Ritsuryò system,60 which had given precedence to lineal relationship.
Furthermore, five degrees of relationship regarded as ‘family,’61 instead
of the previous three had been adopted. This classification of relatives
by degree of relationship was abandoned by the Old Criminal Code,62
which was enforced in 1882, at the same time ending the application
of criminal provisions on the matter in civil law. This led to the
Great Council of State’s interim definition of relatives as related
members of primary and branch ‘houses’ who shared the same ances-
tors plus current members of a ‘house’.63 The ‘Enforcement Regula-
tions for the Code of Civil Procedure’ of 1890, however, once again
referred to the definition made in the Old Criminal Code.64
57
In 1873 a law was enacted, which abolished the prohibition of the sale of and
and granted titledeeds to landowners. This and other subsequent legislations led the
courts to recognize separate property of house members; Hozumi, note 6, at 64.
58
Otake/Maki, note 50, at 249–250.
59
Shinritsu Kòryò, Great Council of State Decree No. 94 of 1870.
60
Ritsuryò law was based on the Chinese legal system, as introduced in the seventh
century and compilated in the Taihò Code of 701 and the Yòrò Code of 718.
61
shinzoku
62
Kyù-keihò, Great Council of State Decree No. 36 of 1880.
63
64
Yoshioka, note 29, at 15.
family law 271
3.2. Marriage and Divorce
The legal provisions regarding marriage underwent a thorough change

during the Meiji period. The ‘Outline of the New Criminal Law’ of
1870, again reviving Ritsuryò law, comprised a provision, which gave
a concubine the status of a relative of the second degree, like that of
a wife. The husband at the same time was a relative of his wife in
the first degree.65 This provision was annulled, however, by the Old
Criminal Code of 1882.
As to marriage certain formal and material conditions were created
during the early Meiji years. The ‘Marriage Regulations’ of 1870 stip-
ulated the necessity of an application to the Great Council of State in
cases of the marriage of nobles. Samurai and commoners had to apply
to their local authorities. The following year, 1871, the ban of inter-
marriage between the different classes was lifted by Great Council of
State Decree No. 437, and marriages with foreigners became allowed
in 1873.66 In 1875 the Great Council of State decreed67 that marriage,
divorce, adoption and dissolution of an adoption were only valid after
registration in the relevant household registers.68 De facto marriages,
however, became officially recognized by Justice Department Notice
No. 46 in 1877, which stated that a husband and wife or an adopted
child who had failed to register appropriately, should still be regarded
as husband and wife or adopted child, if their family, relatives and
neighbours considered them as such. According to the Great Council
65
Unlike a marriage, which was arranged through the agency of a go-between
(nakòdo), a union with a concubine (mekake) was not arranged by a go-between.
Taking a concubine in was an arbitrary decision of the man and with acquiescence
of the concubine’s family. The arrangement, known as ukedashi, is made by paying
money to the family of the concubine’, see: M. Arinori, On Wifes and Concubines
Part I, 8 Meiroku Zasshi (1874) = W.R. Braisted, Meiroku Zasshi: Journal of the
Japanese Enlightenment (Tokyo 1976) 100 fn. 8. Gubbins, note 1, at XII; although
the ‘Outline of the New Criminal Law’ and the ‘Amended Criminal Regulations’
(Kaitei Ritsurei, Great Council of State Decree No. 206 of 1873) regarded both the
wife and the concubine as relatives in the second degree, differences were made in
the provisions on assault inflicting bodily injury, where the punishment for assault
on a husband was the heaviest, the one for harming a wife slightly more lenient
and even less in case the victim was a concubine; Otake/Maki, note 51, at 251, 252
66
R. Ishii, Nihon kon’in-hò-shi [The History of Japanese Marriage Law] (Tokyo
1977) 343.
67
Decree No. 209.
68
Ishii, note 9, at 667; also see B.R. Mayer, Wandel und Kontinuität im japa-
nischen Adoptionsrecht (Change and Continuity in Japan’s Law of Adoption)
(Köln . . . 1996) 31.
272 civil code
of State Decree of 1873 concubines had to be registered too, and

both aforementioned decrees were also to be applied to concubines.69
Since the practical application of these decrees was not to be stan-
dardized for quite some time, actual differences in the application
caused the emergence of the following theories:
(1) a theory, according to which the decree of 1875 established the
principle of lawful marriage,
(2) another theory, which postulated the affirmation of the already
existing system of lawful marriage by this decree, and
(3) a third theory, which denied the existence of such a system until
the Meiji Civil Code was enforced in 1898.70
As to the material conditions of a marriage, originally no provisions
on marriage age existed. During the first years of the Meiji period it
was stipulated that a girl had to be at least twelve years of age to
marry.71 The ‘Outline of the New Criminal Law’ made bigamy a
punishable crime, and this provision was later included in the Old
Criminal Code. In 1874 it was requested that a woman had to wait
300 days to remarry. However, an exception was provided for the
case of the remarriage of a pregnant widow, where the waiting period
was reduced to six months.72 Adulterers, who had been punished as
such, were not allowed to marry.73 Another material condition for
marriage was that relatives within a certain degree could not marry. In
case of samurai not only lineal blood relatives and collateral relatives
within the third degree of relationship were forbidden to marry in the
early Meiji years, but also relatives who were relatives of collateral
relatives by affinity. Even stricter restrictions applied to women.74
Furthermore, marriage required the consent of the head of a ‘house’,
and probably also of the parents.75
As to the effects of marriage, a wife entered her husband’s ‘house’
upon marriage, with the exception of a husband of a female househead,
who entered his wife’s ‘house’. A wife kept her original surname even
after entering her husband’s ‘house’, usually until her husband became
69
70
Ishii, note 65, at 265 et seq.
71
72
73
74
75
family law 273
househead or established a branch ‘house’.76 A wife had the duty to

live with her husband, and the husband had to support his wife.
According to the Code of Criminal Instruction77 of 1880 a wife was
deemed incapacitated, with her husband being her legal representative.78
Similarly, in the field of civil law a wife could not carry out any
financial transactions, unless she was the legal guardian or representative
of her husband. Marital property then was based on the principle of
separation of property and sale; purchase, transfer etc. among spouses
was not allowed.79
One of the wife’s—and concubine’s—most important duties was
to be faithful to her husband. The ‘Outline of the New Criminal Law’
as well as the ‘Amended Criminal Regulations’ included provisions
according to which an unfaithful wife or concubine was to be punished.
The Old Criminal Code too, comprised an article on the punishment
of an adulterous wife. The ‘Outline of the New Criminal Law’ and
later the ‘Amended Criminal Regulations’ gave a husband, whose
wife had been unfaithful to him, the right to kill his wife and the
adulterer on the spot without any punishment, and the Old Criminal
Code provided for leniency for the husband in such a case.80
Dissolution of a marriage in the early Meiji period was effected
by the death of a spouse or by divorce.81 A divorce was possible
either by mutual consent or judicial decision. In case of a divorce
by mutual consent all that had to be done formally was to notify
the local authorites.82 In the initial years after the Restoration a wife
still needed a letter of divorce from her husband to obtain a divorce,
as had been the tradition in Japan for many centuries.83 Great Council
of State Decree No. 162 of 1872 eventually granted the wife the right
to appeal for divorce only in case of unavoidable circumstances.
In 1872 different procedures for divorce petitions by a husband or
76
Ishii, note 9, at 669–670.
77
Chizai-hò; Great Council of State Decree No. 37 of 1880.
78
79
80
81
About divorce in early the Meiji period see also W. Humbert-Droz, Das
Ehescheidungsrecht in Japan (Law of Divorce in Japan) (Köln . . . 1985) 107 et seq.
82
83
Traditionally such a letter needed to consist merely of three and a half lines, and
therefore was referred to as mikudari-han; see Y. Watanabe, The Family and the Law:
The Individualistic Premise and Modern Japanese Family Law: A. v. Mehren [ed.],
Law in Japan: The Legal Order in a Changing Society (Cambridge 1963) 364, 367.
274 civil code
a wife were set up. A husband could divorce his wife unconditionally,
if she had been sentenced to imprisonment for one year or more. When
the wife was severely ill or when the Family Council could not reach
an agreement on the husband’s demand for a divorce, he needed a
court’s permission for a divorce.84 If a wife sought a divorce on grounds
of her husband’s severe illness or punishment for a crime, she had
to appeal to a court, if the husband did not consent to her request.
The same applied, if in case of a husband’s mental illness, the Family
Council could not reach an agreement. Originally, divorce on the
grounds of a spouse’s desertion or disappearance had been treated
according to different procedures, but this distinction was abolished
by Great Council of State Decree in 1884. Now in both cases either
husband or wife could appeal for divorce after 24 months, and
under special circumstances after 10 months. Even though it seems to
have been common for a divorced wife to receive alimony from the
former husband and to continue to be registered in his household
register, no such legal duty of the husband existed.85 According to
Great Council of State Decree No. 209 of 1875, however, a woman
could apply directly to a court for divorce, as long as she was accom-
panied by a male relative. It seems that such appeals were regularly
granted on the grounds of protecting the wife’s human rights.86
Acknowledged grounds for ‘a judicial divorce were: desertion or dis-
appearance of the spouse for two years;87 imprisonment of the husband
for one year or more; profligacy of the husband and severe illness.88
3.3. Parent and child

Like in the Tokugawa period, during the Meiji period a distinction was
made between legitimate children,89 illegitimate children,90 and ille-
gitimate recognized children.91 The ‘Outline of the New Criminal Law’
defined legitimate children as children of a wife or concubine, and from
84
85
86
Watanbe, note 82, at 367 note 18; Ishii, note 65, at 441.
87
During the early Meiji period a husband could divorce immediately after his
wife had disappered. Later he too had to wait for two years.
88
89
chakushi
90
seishi
91
shoshi
family law 275
1874 even a child born within 300 days of the dissolution of a mar-
riage was regarded to be legitimate. But if it was obvious that the child
could not have been fathered by its mother’s husband, the local
authorities would deny the legitimacy and register the child as a nat-
ural child92 of the wife.93 This practice changed in 1884, when the
authorities starting to register such children in their mother’s husband’s
register until he took action at court contesting the legitimacy of the
child.94 As a consequence of concubines no longer being recognized
since the enforcement of the Old Criminal Code in 1882, their chil-
dren were no longer presumed legitimate.95
Legitimate children were regarded as relatives of the first degree,
illegitimate recognized children as relatives in the second. Illegitimate
children, according to Great Council of State Decree No. 21 of 1873,
had to be regarded as ‘natural’ children and stood in no relationship
whatsoever with their father. Decree No. 21 also provided for the
acknowledgment of illegitimate male children by their father with the
consent of the head of the mother’s ‘house’, and then register the child
in the father’s ‘house’. It was not possible to acknowledge an ‘immoral
child’.96 However, if the father and mother of an illegitimate or a
natural child married, such children were from then on regarded as
legitimate children.97
If a ‘house’ had no heir, adoption had been a common practice
ever since the earliest times in Japanese history as a means to prevent
a ‘house’ or family from extinction. Since high emphasis was laid
on the paternal line of ancestry, a son was adopted, if a ‘house’ had
no or only female offsprings. In 1870, two years after the Restoration,
the Meiji government permitted the nobility and samurai to adopt
children. Commoners had to notify the authorities according to the
‘Household Register Law’ of 1871. From 1873 onwards members of
all classes could adopt a person of any of the classes, although
different authorities had to be notified. Also in 1873 the Great Council
of State regulated in Decree No. 263 that a son could be adopted—
92
shisei-shi
93
Great Council of State Decree No. 209 of 1875. Registration was not encour-
aged, though, since the ‘Outline tor the New Criminal Law’ threatened illicit sex-
ual relations with severe corporal punishment; Ishii, note 9, at 675.
94
95
96
ranri-shi
97
276 civil code
even posthumous—in case a ‘house’ had no successor. The ‘Hereditary

Property Law for Peers’ of 1873 furthermore allowed adoption in
case of a ‘house’ being extremely poor and having only very young
children. From 1875 on an adoption was only effected upon registration
in the household register, although the Justice Department in 1877
made clear that, like in case of marriage, de facto adoptions would
be recognized.98
Principally an adoption had to be made by the head of a ‘house’,
although adoption by an heir was possible, too. No limitations as to
the number of adoptive sons existed. Although the foremost reason
for an adoption was to secure an heir, it was not uncommon to adopt
a son who was to take care of an infant heir.99 Some other common
forms of adoption were that of a son as a husband for a daughter
of a ‘house’100 or a female heir.101 An adoptive child had to be chosen
from among blood relatives. Adoption of ascendants, siblings or their
spouses, heads of ‘houses’, heirs, adopted children of other ‘houses’,
guardians etc. was not permitted. But Great Council of State Decree
No. 60 of 1877 provided for the exception that a head of ‘house’ who
had to dissolve his ‘house’ on the grounds of the impossibility of its
continuation, could be adopted into another ‘house’. The head of a
branch ‘house’ could be adopted as heir to the main ‘house’. Special
regulations also applied, if an heir was needed to continue the vocation
of a ‘house’. The procedure of registration of an adoption was sim-
ilar to the one in case of marriage.102
In terms of relation, the adoptee became a member of its adoptive
father’s ‘house’ upon the effectuation of an adoption, and the same
blood kinship as between the adoptive parents and their relatives
existed between the adoptive parents and the adopted child. If an
adopted child was an heir, he was regarded a legitimate child. If,
however, a natural heir was born after the designation of an adopted
child as heir, the latter one could be stripped off this position by
decision of the Family Council in favour of the natural heir.103
To dissolve an adoption, mutual consent or a court decision was
necessary. From 1875 a dissolution on mutual consent had to be
98
Ishii, note 9, at 676–677; Otake/Maki, note 50, at 254; also see Mayer,
note 67, at 32.
99
100
mukoyòshi
101
nyùfu, Ishii, note 9, at 678.
102
103
Ishii, note 9, at 679; Otake/Maki, note 51, at 254.
family law 277
registered in the household registers. Samurai, however, were forbidden

to dissolve adoptions by mutual consent in 1872, although this rule
was softened the following year for certain cases such as sickness or
profligacy of the adopted. The dissolution of an adoption was alto-
gether forbidden, if an adoptive child had already become the head
of the ‘house’. But even in such cases a dissolution could be sought
at court if one the following grounds, as specified by the Justice
Department in 1877, was given: if the adopted househead had dis-
appeared or deserted the house for a period of at least two years;
if an adopted head of ‘house’ returned to his original ‘house’ to
become its head; upon request of dissolution of the adoptive ‘house’
when arranging to welcome a successor or in case of a sentence of
penal servitude for an adopted daughter.104
As to parental power during the early Meiji period, the system was
still heavily influenced by the values of confucianism, which had been
the state doctrine of the proceeding Tokugawa period. The utmost
principle in parent-child relationships was the concept of filial piety,105
which children had the duty to pay to their parents. That this was
far more than just a moralist obligation, was clear by the fact that both
the ‘Outline of the New Criminal Laws’ and the ‘Amended Criminal
Regulations’ comprised special provisions on the punishment of ill-
treatment and insult or defamation of lineal ascendants. Also the killing
of lineal ascendants was punished with greater severity than other kinds
of homicide. The 1882 Old Criminal Code also followed this prin-
ciple and provided for heavier punishments in cases of certain crimes
committed against one’s lineal ascendants, whereas a certain degree
of leniency was shown in cases of crimes committed against one’s own
descendants. Parents and grandparents also were granted a special
status in Japanese Civil Law. If there was a minor head of ‘house’,
they were seen as his ‘natural guardians’106 and thus as guardians in
the first rank. Also did children always need their parents’ or grand-
parents’ consent for a marriage, irrespective of their age.107
Furthermore, no distinction from guardianship existed. Ishii108 assumes
that it was the head of ‘house’ and not the father who, since he was
104
Otake/Maki, note 51, at 254; Y. Tezuka, Meiji igo no oyakohò (Parent and
Child Law since the Meiji Period) (Tòkyò 1952) 74.
105
kò
106
shizen goken-sha
107
108
278 civil code
generally guardian, had a power similar to that of parental power. The

‘Outline of the New Criminal Laws’ comprised a provision which gave
the parent the right to punish his child without legal consequences,
even in case of accidental homicide. These provisions were repealed
with the enforcement of the Old Criminal Code.109
3.4. Other Institutions

The system of guardianship as it had existed during the Tokugawa era,
continued during the early Meiji period. The Tokugawa Bakufu110 had
principally permitted guardianship only for minor heads of Daimyò111
houses’, and otherwise the practice varied from domain to domain.
As for commoners, a distinction was made between ordinary guardian-
ship112 for minor heads of ‘house’ and interim guardianship,113 with
a relative acting as the guardian for a child of a deceased heir.114 The
guardianship for a minor househead of less than fifteen years of age,
had become compulsory both for samurai and commoners in 1873.
Generally either father or grandfather were selected as guardian.115
The Family Council116 as a meeting of relatives for the purpose
of deliberating upon important family matters has a long history in
Japan. Ishii117 cites the ‘Hereditary Property Law for Peers’, according
to which a Family Council was composed of the head of a ‘house’, and
an heir of at least twenty years of age or a guardian, as well as three
or more other relatives. Further detailed regulations on the family
council do not seem to have existed.
Mutual support between parents and children and support of mem-
bers of a ‘house’ by its head was obligatory from the early Meiji era.
The details of such arrangements, however, are unclear. As regards
other relatives, morality demanded to take in and care for the needy
or to support them financially.118
109
110
Shogunate government.
111
Feudal lords.
112
kòken
113
chùkei sòzoku
114
115
116
shinzoku-kai
117
Note 9, at 685.
118
Otake/Maki, note 50, at 248–249.
family law 279
4. Family Law in the Old Code 119
The Old Code, which had been promulgated in 1890, but was never
enforced, was the first modern Japanese Civil Code. Although strongly
influenced by French Law, the Code’s books on Family and Succession
followed widely the already existing Japanese laws and customs, but
at the same time introduced some fundamental alterations.

The ‘house’ in the Old Code did not essentially change from the
existing system. According to Art. 243 Old Code, every ‘house’ was
headed by a koshu, and other members of the ‘house’ were the head’s
spouse and relatives by consanguinity or affinity. The head of a ‘house’
had the duty to support the members of his ‘house’.120 However, all
members had the right to own private property.121 The head of a
‘house’s’ consent was necessary in case of the marriage or adoption
of any member of the ‘house’.122
A head of a ‘house’ could lose his position upon abdication or loss
of Japanese nationality, when a nyùfu husband took over the head-
ship of a ‘house’ from his wife or in case of the divorce of such a
marriage.123
Relatives, according to the Old Code, were such by consanguinity
within the sixth degree, and relatives by affinity in case of a wife
and her husband’s relatives.124
4.2. Marriage & Divorce

Under the Old Code marriage took effect upon the performance of
a marriage ceremony, which had to take place in between three and
thirty days after the application for marriage with the authorities.125 A
woman had to be at least 15, a man 17 years of age to marry.126 To
119
For an English translation see Shihò-shò [ed.], Civil Code Book on the Law
of Person (Tokyo 1892); see for detail: G. Boissonade, Projet De Code Civil Pour
L’empire Du Japon, Tomes 1–5 (Tokio 1882).
120
Art. 244 Old Code.
121
Art. 245 Old Code.
122
Art. 246 Old Code.
123
Vide Arts. 252, 258 Old Code.
124
Arts. 19, 24 Old Code.
125
Arts. 43, 44, 48 Old Code.
126
Art. 30 Old Code.
280 civil code
remarry a divorced or widowed woman a man had to wait six

months,127 and marriage was denied to anyone, man or woman, who
had been punished for adultery.128 Marriage between relatives in the
direct line was prohibited, and also in the collateral line between
siblings, as well as between uncle and niece or aunt and nephew
and between relatives by affinity.129 To marry, the spouses’ parents’,
grandparents’ or guardian’s consent was necessary.130
A wife was still deemed legally incapacitated and thus she needed
her husband’s authorization for a number of legal acts such as accept-
ing donations, selling real property, concluding loan contracts and
the like.131 Such authorization was not necessary, however, if the
husband was presumed to be absent, when he had been interdicted
or quasi-interdicted or when he was in hospital or custody for men-
tal illness.132
As had already previously been the case, divorce could be effected
either by mutual consent or by judicial decision.133 A divorce by con-
sent had not only to be reported to the authorities, but furthermore
the consent of parents, grandparents or guardian was necessary.134
The Code specifically enumerated the grounds for judicial divorce.
One such ground was adultery, although when committed by the
husband, it was limited to cases where he had been punished therefore.
Violent and insulting behaviour toward the spouse or his/her ascendants
was also an acknowledged ground for a divorce, and so was the
punishment for crimes, malicious desertion or declaration of absence.135
Both spouses, but no other relatives, had the right to sue for divorce.136
After a divorce, the children usually stayed in their father’s ‘house’,
unless in case of mukoyòshi or nyùfu marriages.137
127
Art. 32 Old Code.
128
Art. 33 Old Code.
129
Arts. 35–37 Old Code.
130
Art. 38 Old Code.
131
Vide Art. 68 Old Code.
132
Art. 70 Old Code.
133
134
135
Art. 81 Old Code.
136
Art. 87 Old Code.
137
Art. 32 Old Code.
family law 281
4.3. Parent and Child

The Old Code defined legitimate children as children who had been
conceived during a marriage, after more than 180 days from a wed-
ding ceremony or within 300 days of the dissolution of a marriage.138
An illegitimate child was defined as a child born out of wedlock who
had been acknowledged by its father. A child whose father was
unknown, was called a natural child, but could become an illegitimate
child upon acknowledgment by its father.139 Like before, the Old
Code provided for the acknowledgment of an illegitimate child and
for the opportunity of legitimization upon marriage.140 In such a case
a legal blood-relation was created between the father’s wife and the
child.141
The law concerning adoption basically followed the already existing
rules: an adopter had to be older than the adoptee,142 and a person
who already had a son as an heir to the headship of a ‘house’ could
not adopt another son.143 The right to adopt was reserved to heads
of ‘houses’ and their heirs,144 and a married person needed his or
her spouse’s consent for an adoption.145 An heir or adopted heir could
not be adopted into another ‘house’.146 Adoptees of less than fifteen
years of age needed their parents’ consent.147 Once an adoption had
been effected, the adopted child received the status of a legitimate
child,148 and upon adoption the same relationship as between blood-
relatives was established between the adoptee and the adopter’s kin.149
As before, the dissolution of an adoption was possible either by
mutual consent or judicial decision.150 In the case of mutual consent,
the dissolution became effected after the parties concerned had
obtained permission from relevant ‘house’ members and a notification
had been made to the authorities.151 A judicial decision could be
138
Art. 91 Old Code.
139
Art. 98 Old Code.
140
Art. 103 Old Code.
141
Art. 23 Old Code.
142
Art. 1061 Old Code.
143
Art. 107 Old Code.
144
Art. 109 Old Code.
145
Art. 110 Old Code.
146
Art. 11 Old Code.
147
Art. 115 Old Code.
148
Art. 134 Old Code.
149
Art. 22 Old Code.
150
151
282 civil code
demanded by either party in case of cruel or insulting behaviour,

punishment for crimes or prodigality.152 The dissolution of an adop-
tion was not permitted, when the adoptee had already become the
head of a ‘house’.153
Parental power was principally exercised by the father,154 who had
the right to determine the child’s place of residence, and to discipline
and to manage the child’s property.155

Guardianship under the Old Code was no longer limited to the head
of a ‘house’, but applied to other ‘house’ members as well, if no one
existed to exercise parental power or if one was adjudged incom-
petent.156 The guardian had to manage the minor’s property and
was responsible for his care, custody and education.157
A Family Council was to be set up on behalf of an infant and was
composed of at least three of his nearest relatives.158
In regard to the duty of support it is noteworthy that under the
Old Code certain relatives had the duty of mutual support. The head
of ‘house’ had to provide support for the members of his ‘house’.159
Relatives by consanguinity in the direct line and siblings had to sup-
port each other when necessary.160
5. Family Law in the Meiji Civil Code 161
As it had been the custom for many centuries and as it had already
been provided for in the Old Code, the Meiji Civil Code of 1898
152
Art. 140 Old Code.
153
Art. 145 Old Code.
154
Art. 149 Old Code.
155
Vide Arts. 150–157 Old Code.
156
Art. 161 Old Code.
157
Vide Arts. 184–197 Old Code.
158
Art. 171 Old Code.
159
160
161
For the original text and an English translation see Gubbins, note 1; see also
e.g. W.J. Sebald, The Civil Code of Japan (London 1934) or The Codes Transla-
tion Committee, The Civil Code of Japan (Tokyo 1939); for a German see e.g.
K. Vogt, Japanisches Burgerliches Gesetzbuch [ The Japanese Civil Code] (Tokyo
1937); for detailed explanations see J.E. DeBecker, Annotated Civil Code of Japan
Vol. III (London 1910).
family law 283
finally established the ‘house’ as the basic legal unit of Japanese Family
and Inheritance Law. On top of the ‘house’ stood the head of ‘house’,
on whom vast authority was bestowed. It was expected of him to
reign the ‘house’, keep up order within the ‘house’, to protect and guide
its members and to promote the honour and material prosperity of
the ‘house’.162 The head of a ‘house’ carried out the ceremonies of
worship for the ancestors,163 administered property passed on from
the ancestors, but he also had the duty to support members of the
‘house’.164 Parent-child- and husband-wife-relations were still to a
great extent based upon old confucian values such as the concept
of filial piety, giving the head of a ‘house’ a dominating position,
while simultaneously subordinating children and especially women.165

Unlike in Western nations at the time, Japanese law and society were
not based upon the concept of the individual, but on that of the
‘house’, defined by the Meiji Civil Code as a group of persons with
the same surname,166 who were subject to the authority of the head
of their ‘house’. Members of a ‘house’ other than its head were
called ‘family’.167 Such members of a ‘house’ were relatives of a cur-
rent or of a former head of ‘house’ and relatives who entered a ‘house’
with its head’s consent, such as adopted children or daughters-in-
law.168 The Meiji Civil Code provided precise rules for the determi-
nation as to which ‘house’ an individual belonged. A child entered
the ‘house’ of its father; was the father unknown, the child entered the
162
Tappe, note 5, at 15.
163
Hozumi (note 1) viewed the worship of ancestors as the essential foundation
of the house system and the system of the state in general. All legal institutions,
such as marriage, adoption, succession etc., even the house itself existed only for
one purpose: the perpetration of ancestor worship. Gubbins (note 1, at XXI) saw
the importance of ancestor worship in the law as a sign that ‘the point of devel-
opment at which law breaks away from religion’ had not yet been reached in Japan.
For a modern study see Idota, note 1, at 183 et seq.
164
T. Taniguchi, Über das heutige japanische Familiensystem (Today’s Japanese
Family System), 10 Zeitschrift für auslandisches und internationales Privatrecht 477,
479 (1936).
165
As regards the position of women one has nevertheless to note the improve-
ment compared to the previous system, although when looking back now this change
was by no means as fundamental as contemporary commentators had seen it; see
e.g. Gubbins, note 1, at XIII et seq.
166
Art. 746 Meiji Civil Code.
167
kazoku; see Art. 732 Meiji Civil Code.
168
Arts. 732–735 Meiji Civil Code.
284 civil code
‘house’ of the mother. If neither of the parents were known, the

child established a new ‘house’.169 An illegitimate child who had been
acknowledged by its father170 needed the consent of the head of his
father’s ‘house’ to enter it.171 A wife entered the ‘house’ of her hus-
band,172 but in case of a female head of a ‘house’ her husband
became his wife’s ‘house’s’ head upon marriage.173 Relatives of a head
of ‘house’ who belonged to another ‘house’ or persons related to other
‘house’ members by marriage or adoption needed the consent of the
heads of both ‘houses’ when they wanted to enter another ‘house’.174
The consent of a head of a ‘house’ was always necessary for the
marriage, adoption, divorce or dissolution of an adoption of a ‘house’
member,175 since this usually meant a change of the membership of
the ‘house’. The head of a ‘house’ could also determine the place
of residence of the members of his ‘house’.176 On the other hand,
the head of a ‘house’ had the duty to support the members of his
‘house’,177 as he succeeded to almost all of the ‘house’s’ property
upon assumption of the headship of the ‘house’. Art. 748 of the Meiji
Civil Code, however, allowed individual members of the ‘house’ to
own separate property.
A head of a ‘house’ could lose his position by abdication,178 if he lost
the Japanese nationality,179 if he left the ‘house’ because of a divorce
or dissolution of an adoption or—upon permission by a court—
because of marriage,180 if a female head married and her husband
entered her ‘house’ as its head,181 or if such a marriage was divorced.
Inkyo,182 or ‘living in retirement’ was an institution which is often
169
170
shoshi
171
172
Vide Art. 732 Meiji Civil Code.
173
nyùfu; Art. 736 Meiji Civil Code.
174
Arts. 737, 738 Meiji Civil Code.
175
176
177
Art. 747 Meiji Civil Code
178
inkyo; vide Arts. 752, 753 Meiji Civil Code.
179
The loss of Japanese nationality led to the loss of the position as househead,
since the house system was a thoroughly Japanese national institution, and for-
eigners could not belong to a house; Hozumi, note 6, at 70.
180
181
nyùfu, Art. 736 Meiji Civil Code.
182
Earlier in Japanese history a head of a house could retire at any age, such
an abdication being called ‘youthful resignation from the headship of a house’ (waka
inkyo); DeBecker, note 160, at 27.
family law 285
described as of buddhist origin, and could be found all throughout

Japanese history. Legally in case of an abdication it was required
that the head of a ‘house’ be at least 60 years of age and that suc-
cession had been secured.183 Hozumi184 described four possible causes
for abdication, namely for religious reasons, if the head of a ‘house’
had decided to spend his final years as a hermit or priest; for political
reasons; legal abdication because of punishment or atonement, and
finally—as the most common reason—physiological abdication on
the grounds of ill health or old age.185
The Code was not only based upon the ‘house’, but also on kin-
ship, which was established by relation by blood, adoption or marriage.
After various alterations and some vagueness in the definition during
the early decades of the Meiji period,186 relatives were now defined as
blood-relatives within the sixth degree of relationship, husband and
wife, and relatives by affinity within the third degree of relationship.187
Furthermore kinship like between blood-relatives existed between an
adopted child and its adoptive parents and their blood-relatives.188
And the same relationship as between parents and child existed
between a step-parent and a step-child and between a wife189 and
her husband’s acknowledged child.190
183
Art. 752 Meiji Civil Code; a female head of house could retire any time,
regardless of her age; vide Art. 755; furthermore the successor had to be a ‘per-
son of complete capacity’ (kanzen no nòryoku-sha), that meant he could not be a minor,
an incompetent or quasi-incompetent person or a wife. Also succession had to be
‘absolutely accepted’ (sòzoku no tanjun shònin) that means the heir had to succeed in
all rights and duties of the head of a house without any reservations (see Inheritance
Law); DeBecker, note 160, at 26–27.
184
Note 6, at 66–70; also see Gubbins, note 1, at XXXII et seq.
185
186
See Ishii, note 9, at 661–662.
187
Art. 725 Meiji Civil Code; relatives were generally divided into four classes:
blood-relations (ketsusoku), quasi-blood-relations ( jun-ketsu-zoku), spouses (haigù-sha), and
relatives by affinity (inzoku). Blood-relations were further divided into lineal relatives
(chokkei-shin) with lineal ascendants (sonzoku-shin) and lineal descendants (hizoku-shin),
and into collateral relations (bòkei-shin). Quasi-blood-relations were relatives who were
not naturally, but legally related by blood, such as step-parents and step-children
or a wife and her husband’s legitimized child (chakubo and shoshi ). Spouses now
included only a married husband and wife, not concubines; see DeBecker, note
160, at 2–3.
188
189
chakubo
190
shoshi, Art. 728 Meiji Civil Code.
286 civil code
5.2. Marriage and Divorce

At no time in Japanese history had marriage been regarded as an
act between two individuals. Rather marriage had always been viewed
as a transaction between two families or ‘houses’, which involved an
individual leaving his or her ‘house’ of origin and entering the spouse’s
‘house’. The Meiji Civil Code, however, finally established the concept
of legal marriage. As in the Old Code the marriage age for men
had been set at 17, for women at 15 years.191 The Meiji Civil Code
also followed the Old Code in the fact that a woman could not
remarry until after six months of the dissolution of a former mar-
riage192 and in the prohibition of the marriage of adulterers, so not
to encourage adultery.193 Moreover, marriage between lineal relatives
as well as between collateral relatives within the third degree and
relatives by affinity was forbidden, as was marriage between adop-
tive parents or their lineal ascendants and adoptive children and
their lineal descendants or spouses.194
A man younger than 30 and a woman under 25 years of age needed
their parents’ consent to get married, and any person needed the
consent of the head of his or her ‘house’.195
Whereas the Old Code stipulated a marriage taking effect after the
wedding ceremony, such a ceremony had now become legally irrel-
evant, with Art. 775 I of the Meiji Civil Code stating that a marriage
took effect upon notification to the registrar. In the popular view,
however, a marriage continued to be regarded as concluded by the
performance of a ceremony. This had the effect that after the cer-
emony had taken place, registration was frequently postponed, thus
creating a ‘trial period’, in which the new member of the ‘house’ had
to prove that he or she fit into that ‘house’ or until an heir had
been born.196
A marriage, for which a wedding ceremony had been held but
the marriage had not been registered, was called naien or ‘informal
marriage’. But besides the aforementioned ‘trial’ function, various other
reasons led to naien relations. If for example the parents or the head
191
192
Art. 767 I Meiji Civil Code.
193
Art. 768 Meiji Civil Code; DeBecker, note 160, at 43.
194
195
196
Watanabe, note 82, at 364.
family law 287
of a ‘house’ had not consented to the marriage197 or if both part-

ners were heads of a ‘house’, the registration of the marriage was
legally not possible. To give such couples a certain degree of legal
protection, the Japanese courts developed the concept of naien as a
de facto marriage, when a wedding ceremony had been held, but
no formal registration been made.198
As to the effects of marriage, the Meiji Civil Code clearly provided
the legal basis for the husband’s dominant position. Firstly, in com-
pliance with the patriarchical foundations of the ‘house’ system, Art.
788 Meiji Civil Code stated that the wife entered her husband’s
‘house’ upon marriage. An adopted husband entered his wife’s ‘house’.
Upon marriage the husband acquired the right to the possession and
management of his wife’s property and to the enjoyment of rents
and profits,199 although he did not acquire the title to his wife’s prop-
erty. The husband had the right to choose the family’s place of res-
idence,200 but he also had to bear all expenses of the family.201 Both
partners had the duty to support each other.202
Like the Old Code, the Meiji Civil Code too provided for divorce
either by mutual consent or by judicial decision.203 A divorce by
mutual consent was effected merely by notification, but like in case of
marriage, the consent of certain persons such as parents of spouses
under the age of 25 or the head of a ‘house’ were necessary.204 As
to judicial divorce, Art. 813 of the Meiji Civil Code enumerated the
grounds, on which husband or wife could appeal to the courts as
follows: bigamy, adulterous actions by the wife, criminal punishment
of the husband for adultery, punishment of a spouse for certain
crimes, gross ill-treatment or insult of the spouse or his/her lineal
ascendants, or such behaviour by lineal ascendants against one of
the spouses, desertion, disappearance for more than three years, and
dissolution of the adoption of a mukoyòshi or nyùfu husband.
197
Vide Arts. 750, 772 Meiji Civil Code.
198
Daishin’in (Great Court of Judicature) 26 January 1915 in Daishin’in Minji
Hanketsu-roku (Minroku) 21; see e.g. Y. Tezuka, note 103, at 46.
199
200
201
202
203
Arts. 808, 813 Meiji Civil Code; for a more detailed study of divorce under
the Meiji Civil Code see Humbert-Droz, note 80, at 110 et seq.
204
Vide Arts. 809–811 Meiji Civil Code.
288 civil code
Besides the disadvantages a wife could suffer from a divorce by

mutual agreement, which did not require any judicial control of its
voluntarity or contents, the Code gave custody of the children prin-
cipally to the father in case of divorce.205 No provisions on the
financial settlement after a divorce existed.
5.3. Parent and Child

As to children, first of all distinctions were made between real chil-
dren206 and adopted children,207 and further between legitimate chil-
dren of husband and wife,208 illegitimate children, who had been
acknowledged by their father209 and illegitimate children.210 Furthermore,
parent-child relations were also established by law between step-
parent and step-child and between a wife and her husband’s acknowl-
edged illegitimate child.211
Art. 820 of the Meiji Civil Code stated that a child conceived dur-
ing marriage was legitimate and presumed the legitimacy of a child
who was born within 200 days from the formation of a marriage or
300 days after the dissolution of a marriage. The legitimacy of a child
could be contested by the husband within a year after he had become
aware of the child’s birth, unless he had already recognized it.212
An illegitimate child could be acknowledged by his father or mother.213
Such a recognition was accompanied by important effects, since upon
acknowledgment the child was legitimized,214 and thus able to suc-
ceed into the position of head of ‘house’, Art. 835 of the Meiji Civil
Code gave an illegitimate child the right to demand recognition.
The confucian concept of kò (filial piety), which had ruled the
parent-child relationship especially during the Tokugawa period, also
provided the basis for the relevant provisions in the Meiji Civil Code.
A good example here is the necessity of the parents’ consent to mar-
205
206
jisshi
207
yòshi
208
chakushutsu-shi
209
shoshi; in colloquial language a shoshi was referred to as shòfuku no ko or ‘child
by a concubine’; DeBecker, note 160, at 86.
210
shisei-shi
211
DeBecker, note 160, at 79.
212
Arts. 822, 824, 825 Meiji Civil Code.
213
214
family law 289
riage for a man until he reached 30 years of age, for a woman until
25. Another good example could be found in the Old Criminal Code
of 1882 where crimes committed against lineal ascendants are more
severely punished as crimes committed against descendants.215 Although
children owed filial piety to both parents, parental power was prin-
cipally only exercised by the father.216
Adoption217 was still regarded as a corner-stone of Family Law and
necessary as a means to ensure the maintenance of a ‘house’, if no
natural heir existed or was apt to succeed into the headship of a
‘house’.218 “Without it, the continuity of the ‘house’, upon which rested
the perpetuation of ancestor-worship, cannot be maintained. The
practice of adoption has been so common and universal among the
people, from ancient time down to the present day, that Prof. Cham-
berlain writes ‘It is strange, but true, that you may often go into a
Japanese family and find half-a-dozen persons calling each other par-
ent and child, brother and sister, uncle and nephew, and yet being
really either no blood-relations at all, or else relations in quite different
degrees from those conventionally assumed.’”219
The Meiji Civil Code stipulated the following conditions for an
adoption: the adopting parent had to be mature;220 no ascendant or
person older than the adopter could be adopted;221 if a male child as
legal heir presumptive existed, no other male could be adopted, except
as a husband to a daughter;222 married couples could only adopt
jointly,223 and the adoption of a child under fifteen years of age
required the consent of its parents.224 An heir presumptive to the
headship of a ‘house’ could not be adopted into another ‘house’,
except if he belonged to a branch ‘house’ and was to become the
head of the main ‘house’.225 The adoption of a child who had already
215
Even the current Criminal Code (Keihò, Law No. of 1907) comprises such pro-
visions, and Art. 200, which stipulated aggravated punishment for the killing of
one’s own ascendants, was only abolished in 1995, after having been ruled uncon-
stituional by the Supreme Court in 1973.
216
217
yòshi engumi
218
219
220
221
222
223
224
225
290 civil code
assumed the headship of the ‘house’, could not be dissolved, unless

he abdicated.226
Unlike the Old Code, the Meiji Civil Code did not restrict the
right to adopt to a head of a ‘house’.
Upon adoption the adoptee became a legitimate child of the adop-
tive parent and entered his ‘house’; the same relationship as between
blood-relatives was established between an adoptee and an adopter
and his blood-relatives.227 As a consequence thereof, the adoptee
acquired the right of succession as well as all rights and duties that
existed between parent and child, such as the duty of mutual support,
the adopter’s right to exercise parental power et cetera.
Like in the Old Code, dissolution of an adoption was possible
either by mutual consent or judicial decision. Whereas a dissolution
by mutual consent228 could be carried out freely, a judicial dissolution
could only be applied for, if one of the grounds similar to those in
case of divorce, enumerated in Art. 866 of the Meiji Civil Code were
given: ill-treatment (cruelty) or gross insult by either party, or by or
of the other party’s lineal ascendants; desertion; disappearance for
three or more years; criminal punishment to one year imprisonment
or more; the adoptee having acted in a way that disgraced the name
of the ‘house’ or endangered the ‘house’ property, or in case of the
dissolution or annulment of the marriage of a mukoyòshi or nyùfu
husband.
As mentioned earlier, during the Meiji period the Japanese family
had a double base of ‘house’ and kinship, with the former one always
taking precedence over the latter.229 Therefore, being based on kinship,
parental power230 was limited by the conception of the ‘house’ and
was recognized only so far as the parent and child belonged to the
same ‘house’.231
Although parental power seemed to be analogous to the rights of
226
227
Arts. 727, 860, 861 Meiji Civil Code.
228
229
Many Meiji period political leaders and jurists, however, were of the impres-
sion that the era of the house had come to an end with the registration of indi-
viduals under the Household Register Law of 1898, as in contrast to the previous
Law of 1871, which registered only houses; see Hozumi, note 1, at 41, 44; for a
closer look at the Japanese concepts of ‘house’ or ‘family’ and ‘kinship’ in com-
parison to the western understanding see Gubbins, note 1, at VI et seq.
230
shinken
231
Art. 877 I; Hozumi, note 6, at 44–45.
family law 291
the headship of a ‘house’, there was a clear legal distinction between

these two institutions. Whereas the rights of the head of a ‘house’
had as their object the control and management of the ‘house’, and
while their validity affected the interest of all members of a ‘house’,
parental power had as its object the protection of the child, and its
effect was exercised on the person and property of the child.232
Parental power meant first of all that the parent had the right and
duty to take care of and to educate the minor child.233 Other pro-
visions of the Meiji Civil Code provided for the parent’s right to
determine the child’s place of residence234 and to permit the child’s
enlistment into military service,235 to disciplinarily punish the child,236 to
permit the child to carry out an occupation,237 and to manage the
child’s property and represent it in juristic acts.238 If a mother held
parental power, she needed the Family Council’s consent in several
cases of exercising parental power.239 Furthermore, a parent exer-
cised a minor’s rights as head of a ‘house’, his parental power, and
represented a minor husband’s right to manage his wife’s property.240
Parental power was lost, if it was abused, or if the holder of parental
power was guilty of flagrant misconduct.241 The former cause was inter-
preted as, for instance, the application of excessive corrective measures
or the protection or education in an improper way and the like; the
latter one was seen as given, if, for example, a widow who held parental
power, led an immoral life.242 Parental power could also be lost,
when its holder endangered the child’s property by mismanagement.243

Guardianship244 was established, when either no one existed to exer-
cise parental power over a minor child or when a person had been
232
DeBecker, note 160, at 124–125.
233
234
235
Art. 88l Meiji Civil Code.
236
237
238
239
240
241
242
243
244
kaiken
292 civil code
judged incompetent.245 Guardianship was defined as the right and

duty of protecting and guarding the person and estate of such persons.
A guardian could be designated by the holder of parental power. If
no such designation had been made, a parent or spouse, or, if not
existing, the head of a ‘house’ was to become guardian.246 If none of
the aforementioned persons could become guardian, one was appointed
by the Family Council.247 Rights and duties of the guardian were
quite similar to parental power.248
As mentioned before, the Family Council was a formal institution
with the task of determining a guardian, if no such person had been
found otherwise. A Family Council consisted of at least three family
or ‘house’ members, and was convened, for instance, when the head
of a ‘house’ was legally incapacitated or was unable to exercise the
rights and duties of his position, or when a minor or incompetent
person was not subject to parental power. In such cases the Family
Council had to deliberate and decide on appropriate measures to
avoid threats for the ‘house’.249
The duty of support250 fell first of all to the head of a ‘house’
for its members.251 Since the head of a ‘house’ principally acquired
almost all property of the ‘house’, it seemed only reasonable that he
supported its members.252 Art. 790 of the Meiji Civil Code obliged
a husband and wife to support each other, and a duty of mutual
support also existed between lineal blood-relatives and siblings as
well as between a husband or wife and his or her spouse’s lineal
ascendants, who belonged to the same ‘house’.253
Such duty, however, existed only, when the person entitled to sup-
port had no way to make his living on his own, and when, in case
of siblings, this was not due to their own fault.254
245
246
247
248
249
Vide Art. 945 Meiji Civil Code; DeBecker, note 160, at 180; also see Gubbins,
note 1, at XXXVI et seq.
250
fuyò no gimu
251
252
253
254
family law 293
6. Prewar development
As is generally known,255 the ‘house’ system was not merely the basis
for family relations and Family and Inheritance Law, but served as
the basis for the social, economic and political system in prewar and
wartime Japan. Due to the close relation between the ‘house’- and
the state-system the family was affected by political and social changes
as well. Consequently, during the rise of a popular movement dur-
ing the 1920s many critics of the political system became aware of
the incompatibility of democracy and the ‘house’ system. This aware-
ness led to growing calls for reform, supported by voices which
pointed to the frequent abuse of the rights of a househead. Conservative
forces, including the nations’ leaders, however, feared the destruction
of the system as a possible danger for the state system, the kokutai.
To protect the kokutai, they initiated a reactionary course with the
demand of the tightening of provisions to preserve Japan’s ‘good
ways and beautiful customs’.256 Supported by a memorandum of the
Temporary Conference on Education’257 on contradictions between
law and reality, dated 1919, the Japanese Government in the same
year established the Temporary Council on the Legal System’258
whose task was to investigate a revision of the Civil Code.259
As a result of the committee’s deliberations, in 1925 and 1927 the
‘Outline of a Reform of the Civil Code was published’,260 comprising
34 points in the Code’s book on Family and 17 in the book on
Succession, which needed to be revised.261 Examples for these rec-
ommendations were, besides the general improvement of the spouse’s
(wife’s) position, the weakening of the position of the heir to the head-
ship of a ‘house’. Furthermore, the protection of a de facto (naien)
wife by effecting a marriage upon the commencement of a ceremony
255
P. Schmidt, Die Reform des Japanischen Erbrechts nach dem Zweiten Weitkrieg
[Revision of Japanese Inheritance Law after World War II] (Köln . . . 1993) 11
et seq.
256
M. Aoyama, Meiji minpò igo no sòzokuhò (Law of Succession since the Meiji Civil
Code) (Tòkyò 1974) 163.
257
Rinji kyòiku kaigi
258
Rinji hòsei shingi-kai
259
260
Minpò kaisei yòkò
261
S. Wagatsuma, Minpò to gojùnen—sono 2—zuisò shui (Fifty Years with the Civil
Code, Part 2: Sketches) (Tòkyò 1976) 102; K. Bai/N. Toshitani, Jinji hòan no kisò
kaitei to sono gaiyò: E. Hoshino [ed.], Shihògaku no aratana tenkai (New Developments
in Civil Legal Science) 471 (Tòkyò 1975).
294 civil code
instead of registration, and the repealing of the provisions on the

wife’s legal incapacity were proposed, and so was the right of a female
head of a ‘house’ to retain her position even after marriage. The
adoption of minors, the ‘Outline’ advised, should be possible only
with consent of a court, and an heir to the position of head of a
‘house’ should only succeed into such property as essential for the
preservation of the ‘house’, with the remaining property being dis-
tributed among other successors, including spouse, younger sons and
daughters. A legitimate child, irrespective of sex, should always take
precedence over an illegitimate child, and the share of inheritance
of non-members of a ‘house’ should be reduced to half of the share
of ‘house’ members in case of succession to property. Furthermore,
the ‘Outline’ proposed that the spouse be successor in the same rank
as lineal descendants, and that the legal shares be raised to two-
thirds if spouse and lineal descendants were the heirs, and to one
half, if the spouse was the only heir, and in case of failure of heirs
siblings should have precedence over the head of ‘house’.262
With this outline as a basis, the commission commenced work on
a draft revision in January 1929. After fourteen years of intensive
deliberations, this draft was only completed in 1943. It constituted
a compromise between the conservative government’s prerequisites
and the wishes of the people. Under the ultra-reactionary ideology
of wartime Japan this draft, however, had no hope of becoming law,
since it was generally too individualistic and democratic in its out-
look. All further efforts for a revision of the Code came to a halt
with Japan’s defeat in the Second World War.263
7. Postwar Reforms 264
In Article 10 of the Potsdam Declaration of 26 July, 1945, the United

States, Great Britain and China (the USSR joining on 9 August)
demanded: “. . . The Japanese Government shall remove all obstacles
to the revival and strengthening of democratic tendencies among the
Japanese people. Freedom of speech, of religion, and of thought, as
262
Schmidt, note 254, at 13.
263
Schmidt, note 254, at 13–14.
264
For details see S. Wagatsuma [ed.], Sengo ni okeru minpò kaisei no keika (The
Course of the Postwar Reform of the Civil Code) (Tòkyò 1989).
family law 295
well as respect for the fundamental human rights, shall be established.”

Japan accepted the Potsdam Declaration on 14 August, 1945, and the
War ended with Japan signing the Instrument of Capitulation on 2
September, necessitating thorough changes in the nation’s political
and social structure to fulfill the demands of the Allied Powers.
One of the primary aims of the Occupation was the democrati-
zation of Japan, which realization made fundamental reforms of the
legal system inevitable. One of the first undertakings in this field was
the compilation of a new constitution, which was promulgated on 3
October, 1946 and enforced from 3 May, 1947.265
According to Art. 98 of the Constitution, no laws, ordinances etc.
contrary to the provisions of the Constitution were to have legal force
or validity.
Besides the general principle of equality in Art. 14 I of the Consti-
tution,266 Art. 24 in particular provided for equality in family rela-
tions: “I. Marriage shall be based only on the mutual consent of
both sexes and it shall be maintained through mutual cooperation
with the equal rights of husband and wife as a basis. II. With regard
to choice of spouse, property rights, inheritance, choice of domicile,
divorce and other matters pertaining to marriage and the family,
laws shall be enacted from the standpoint of individual dignity and
the essential equality of the sexes.”267
In combination with the aforementioned Art. 98, the principles
established by Arts. 14 and 24 of the Japanese Constitution raised the
question, whether the ‘house’ system was constitutional and if it had
to be abolished or not. But although preparations for an amend-
ment to the Civil Code had started in the ‘Temporary Council on
the Legal System’ almost simultaneously with the drafting of the new
Constitution, the Japanese Government showed no clear policy as
to the implications of the constitutional changes for the ‘house’ or
family system.
Due to the fact that the General Headquarters (GHQ ) had been
strained with the revisions of other important laws and because of
lengthy discussions in the committees and sub-committees, it had
265
English translation cf. D.F. Henderson [ed.], The Constitution of Japan—Its
First Twenty Years, 1947–67 (Seattle & London 1968).
266
Art. 14 I of the Japanese Constitution reads: “All of the people are equal
under the law and there shall be no discrimination in political, economic or social
relations because of race, creed, sex, socal status or family religion.”
267
At 305.
296 civil code
soon become obvious that it would not be practicable to enforce an

amendment of the Civil Code at the same time as the new Constitution.
But since the Japanese Supreme Court was expected to rule a great
number of family- and succession-related provisions of the Meiji Civil
Code as contradictory to the principles of the Constitution, the ‘Law
Concerning Temporary Adjustments of the Civil Code Pursuant to
the Enforcement of the Constitution of Japan’268 was drafted and
went into force on 3 May, 1947. Although this law consisted of merely
ten provisions, it comprised all the important aspects of the amend-
ment of the Civil Code, such as the repeal of the wife’s legal inca-
pacity, the repeal of all legal provisions concerning ‘house’ and family,
the abolition of succession to a ‘house’ or the spouse’s principal right
to succession.
As was to be expected, soon after the discussions on an amendment
had begun, the question was raised, as to whether the ‘house’ system
was compatible with the principles and values of the new Constitution.
The vast authority bestowed on the head of a ‘house’ or the discri-
mination of women hardly seemed to be compatible with the consti-
tutional principles materialized in Arts. 14 and 24, and moreover,
the application of the ‘house’ system and the principle of filial piety
as the basis of the nation’s prewar absolutist Tennò-system convinced
many that the whole system had to be abolished.269
Heated debates were initiated by the advocates of the ‘house’ sys-
tem as early as summer 1946. At the ninetieth session of the Imperial
Diet, which adopted the new Constitution, those, who wanted to pre-
serve the ‘house’, attempted to overthrow Art. 24 of the Constitution
especially. They argued that this provision would inevitably lead to
the collapse of Japanese society, since the ‘house’ system and the
state system were to structure the social and political system ‘like
two wheels’, thus interpreting Art. 24 of the Constitution as an attack
against the state itself.270 Opposition was especially fierce in the Upper
House, where the purpose of Art. 24 was seen as a sell-out of the
268
Nihon koku-kenpò no shikò ni tomonau òkyù-teki sochi ni kansuru hòritsu, Law. No. 74
of 1947; for an English translation see K. Steiner, Postwar Changes in the Japanese
Civil Code: 25–3 Washington Law Review and State Bar Journal (1950) 286, 294
et seq.
269
N. Nishimura, Sengo Nihon kazokuhò no minshuka—jakkan no kaisò (Postwar
Democratization of Japan’s Family Law—Some Reminicences), 29 Hòshakaigaku
129, 131 et seq (1976).
270
L.H. Redford [ed.], The Occupation of Japan: Impact of Legal Reform
(Norfolg 1977) 127.
family law 297
family system and all its values, causing the members of the House
to demand the inclusion of a passage that should read ‘cohabitation
of the family shall be supported’. This proposal, however, failed to
receive sufficient support to pass.271 In the Lower House it was repeat-
edly argued that Art. 24 would shatter the foundations of the rights
of head of at ‘house’ and parents, and therefore strongly affect filial
piety as the basis of all morality.272 Thus Prime Minister Yoshida
Shigeru could calm those fears by declaring in the Lower House:
“[The new Constitution] does not negate such things as the rights
of the head of the ‘house’, the family, or inheritance . . . Japan’s
inheritance of the ‘house’ headship, etc., is one of the ‘good ways
and beautiful customs’ peculiar to Japan. There is no particular pro-
vision on this point [in the Constitution].”273 Since the Prime Minister
saw no contradiction between the ‘house’ system and the principles
of the new Constitution, it was hardly to be expected that conservative
politicians would comprehend the necessity to change the system.
The Minister of Justice, too, publicly stressed that although the ‘house’
system had to be erased from the Constitution, it nevertheless should
continue on the level of the Civil Law.274
But the ‘house’ system was widely regarded by legal scholars as
a major hindrance to social progress and already in a state of col-
lapse. Hence the committees in charge of the amendment strongly
supported a revision of the Civil Code which would abolish the ‘house’
system. The first sign that the drafters of the revised Code were not
willing to compromise or adopt the interpretations of the Prime
Minister and the Minister of Justice, was the pamphlet ‘All Problems
Regarding a Reform of the Books on Family Law and Succession of
the Civil Code, which have to be Considered Carefully’,275 composed
by the director of the Justice Ministry’s Bureau of Civil Affairs,276 where
the dissolution of the ‘house’ system was strongly recommended.277
271
S. Wagatsuma, Guarantee of Fundamental Human Rights under the Japanese
Constitution, 26–2 Washington Law Review and State Bar Journal, 145, 147 (1951).
272
K. Steiner, The Revision of the Civil Code of Japan: Provisions affecting the
Family, 9–2 The Far Eastern Quarterly 169, 173 (1950).
273
274
J. Murakami, Einführung in die Grundlagen des japanischen Rechts (Introduction
to the Basics of Japanese Law) (Darmstadt 1974) 102 et seq.
275
Minpò shinzoku-hen oyobi sòzoku-hen no kaisei ni tsuki kòryo subeki sho-mondai.
276
Hòmu-shò minji-kyoku
277
Wagatsuma, note 263, at 12; for a German translation see Schmidt, note
254, at 161.
298 civil code
Based on these principles, guidelines for a reform were drafted, thus

giving the signal for a heated debate between the advocates of the
‘house’ system and its opponents. Whereas the former group repeated
the often-heard fears of the destruction of the social system and its
values in case of an abolition of the ‘house’ system, the latter ones
viewed this system as an obstacle to real democratization.278 When
prominent jurists on the committee like Nakagawa Zennosuke and
Wagatsuma Sakae threatened to halt their efforts to reform the Civil
Code, unless the ‘house’ system was completely abolished, Justice
Minister Kimura all of a sudden changed his attitude. On 28 August,
1946 he even stressed eventually in a speech before the Lower House
the necessity of an abolition for the realization of the constitutional
principles. The family system in a good sense and the custom of
worshipping the ancestors, he declared, were nevertheless to be pre-
served.279 Heated arguments continued, however, until Wagatsuma
succeeded in convincing the opponents of an abolition of the ‘house’
system that the Meiji Civil Code’s provisions had only meant as a
consolidation of the rights of a head of ‘house’, which had to be
abolished because of its frequent abuse. On the level of morality,
however, the ‘house’ system should be preserved as one of Japan’s
‘good ways and beautiful customs’.280 Many critics of firm democ-
ratic conviction opposed this compromise, and demanded that not
only the ‘house’ be abolished as a legal institution but also that steps
be actually taken to eliminate it from social life. The strength of the
opposition against such measures made such an aim impossible to
achieve, however, and in the end the concessions obtained were wel-
comed by all concerned, including the more radical reformers.281 The
argument of the ‘house’ system violating the Constitution’s principle
of equality eventually was the decisive factor, and the revised Code,
stripped off all provisions on the ‘house’ system, passed the Diet,
was promulgated on 22 December 1947 as Law No. 222 and enforced
on 1 January 1948.282
278
Y. Watanabe, Kazoku to hò (The Family and the Law) (Tòkyò 1973) 42.
279
Wagatsuma, note 263, at 15–16.
280
Wagatsuma, note 263, at 42.
281
282
The drafters oriented their work to a certain degree on American law, leed-
ing Y. Kawashima (Americanization of Japanese Family Law, 1945–1975: 15 Law
in Japan 54 (1982) to the suggestion of a thorough adoption of American law. Also
see: Schmidt, note 254, at 31–32.
family law 299
The Code has been amended several times since, with especially
meaningful revisions in 1962, 1980 and 1987.283
8. Current Family Law
In contrast to the Meiji Civil Code the revised Code is based on the
concept of the individual, with the family consisting of parents and
their minor children. The wife has now complete legal capacity, and
all discrimination and inequality between husband and wife and
among children has been abolished on the legal level.284
8.1. Marriage & Divorce

Under the present law, marriage is solely based on the agreement
of the parties and becomes effective by notification, made by both
parties and at least two witnesses in accordance with the ‘Law of
Family Registration’.285 The legal age for marriage is 18 for men
and 16 for women,286 although minors under 20 years of age need the
consent of at least one parent.287 Plural marriage and marriage between
close relatives by blood or collateral relatives by blood are prohibited.288
Husband and wife have to agree on a common family name.289
After the death of one spouse or the dissolution of a marriage the
previous surname can be reassumed.290 As to mutual obligations of
a married couple, Art. 752 of the Civil Code bestows on them the—
not enforcable—duty of cohabitation and to support each other. The
provisions on the matrimonial property system291 allow a couple to
283
Details of these reforms will be discussed in the relevant chapters below and
in the essay on Law of Succession.
284
One exception to this principle is the discrimination of illegitimate children
in the field of inheritance; see ‘Law of Succession’.
285
Koseki-hò, Law No. 224/1947; vide Art. 739 Civil Code.
286
Art. 731 Civil Code; currently (1996) a reform is under way to raise a woman’s
marriage age also to 18 years; see Japan Times 28 February 1996 at 1.
287
Art. 727 Civil Code.
288
Arts. 732, 734 Civil Code.
289
Art. 750 Civil Code; since in 98% of all marriages the couple assumes the
husband’s family name, strong criticism has lately been voiced because of the dia-
davante the change of the name might cause in the workplace, urging a reform;
see Japan Times 28 February 1996 at 1.
290
291
Arts. 755–762 Civil Code.
300 civil code
conclude a contract. However, in most of the cases the legal property

system is applied, with the property of a married couple belonging
separately to the spouses, unless ownership cannot be determined.292
The naien relation, a kind of test-marriage which was not uncom-
mon before the war, is not dealt with in the postwar code, since
this institution was expected to die out soon. A certain degree of
protection of a naien spouse, however, is taken care of in a number
of special legislations.293
Japanese law knows three types of dissolution of a marriage: upon
agreement by the parties, by conciliation or by a court judgment.
If the couple agrees to end the marriage, they simply have to register
their divorce.294 If, however, they cannot agree, they have to apply for
conciliation with the Family Court before suing for divorce. If the
parties come to an agreement during conciliation, the committee’s
decision has the same effect as a formal judgment. The last available
option is divorce by a court judgment. Art. 700 I of the Civil Code
enumerates five grounds for a judicial divorce: unchasity, malicious
desertion, disappearance for more than three years, severe mental
illness or other grave reasons, which make the continuation of a
marriage impossible. The latter reason is defined as an irretrievable
breakdown of the marriage. A court, however, can dismiss an action
for divorce even when one of the aforementioned reasons is given,
if it deems the continuance of the marriage proper in view of all
circumstances.295 Especially noteworthy about the handling of divorce
292
Despite increasing calls for a reform of the matrimonial property system, no
amendment had been made on the occassion of a broad reform of the Code in
1980, although at the time the spouse’s share of succession had been increased; see
‘Law of Succession’.
293
K. Igarashi, Einführung in das japanische Recht (Introduction to Japanese
Law) (Darmstadt 1990) 120 et seq.; such legislations are for instance: Workmen’s
Accident Compensation Insurance Law, Law No. 50 of 1947 Art. 151, English
translation in MINISTRY OF LABOUR, “Japan Labour Legislation” 365 (1959);
Workmen’s Accident Compensation Insurance Enforcement Regulations, Ministry
of Labour Order No. 22 of 1955, Art. 16 I, English translation in LABOUR LEG-
ISLATION 381: Labour Standards Law 49/1947 Art. 79; English translation in
Labour Legislation 381; Labour Standards Law Enforcement Regulations, Ministry
of Welfare Order No. 23/1947 Art. 42, English translation Labour Legislation 233;
Welfare Annuity Insurance Law 115/1954 Art. 63 I b; National Annuity Law 141/
1959 Art. 5 c etc.
294
295
Art. 700 II Civil Code; one example herefor is the Supreme Court’s judg-
ment of 25 July, 1958 (Saikò saibansho minji hanreishù (Minshù) 12–12–1823) in
a case, when the spouse who sought a divorce for his partner’s mental illness, had
not provided for the other spouse’s support after a divorce.
family law 301
cases is that the courts originally limited the right to sue for a divorce
to the spouse who did not cause the break-up of the marriage. Only
in 1987 the Supreme Court296 granted a divorce to a man who had
left his wife to live with another woman. The Court set up as pre-
requisites for such cases a sufficiently long period of separation, no
existence of children under the age of 20 and the absence of special
circumstances which would make it unjust if the party responsible for
the break-up seeks a divorce.
As to the effects of a divorce, Art. 768 Civil Code grants the right
to demand a distribution of property, and Art. 766 Civil Code states
that the couple should agree on the custody of children, or, if such
agreement cannot be reached, the Family Court decides. If the cou-
ple lived in a naien relationship, the courts have repeatedly granted
compensation to the deserted partner.297
8.2. Parents and Children

According to Art. 772 I of the Civil Code, a child, conceived by a
wife during marriage, is presumed legitimate. A child, born after 200
days of the formation of a marriage or within 300 days of its dis-
solution is presumed to have been conceived during marriage.298 This
presumption can only be reversed by the—presumed—father bring-
ing an action of denial.299
A child who is not legitimate can be legitimized by either one of
its parents,300 thus obtaining the same rights as a legitimate child.
As to adoption, Arts. 792 and 793 of the Civil Code stipulate that
an adopter has to be at least 20 years of age, that the adoptee must
be younger than the adopter and must not be an ascendant of the
adopter, and that married couples have to adopt jointly.301 If the
adoptee is a minor, approvement of the Family Court is necessary.302
If the adoptee is younger than 15 years, the child’s legal representative
can assent to the adoption on behalf of the child.303 Since this system
of adoption is widely regarded as a legacy of the old ‘house’ system’s
296
Judgment of 2 September 1987, in Minshù 41–6–1423.
297
See e.g. Great Court of Judicature 26 Jan. 1915 (Minroku 21–49).
298
Art. 772 II Civil Code.
299
Arts. 774, 775, 777 Civil Code.
300
301
302
303
302 civil code
way of securing continuance, instead of an instrument for the welfare

of the child, and since an adoptive child used to be registered as such,
a second system, the so-called ‘special adoption’ was introduced into
the Civil Code in 1987.304 The child has to be younger than six years
and has to have lived with the adoptive parents for a trial period
of at least six months. If then the Family Court approves of the
adoption, the child can be registered as a natural child. And whereas a
normal adoption can be dissolved upon agreement,305 a dissolution of
a special adoption is permitted only under certain circumstances.
The provisions on parental power hardly differ from those in the
Meiji Civil Code. Minors are subject to their parents’ parental power,
now exercised jointly by father and mother, while they are married.306
The parents can designate the child’s place of residence307 and their
permission is necessary if the child wants to carry out an occupa-
tion.308 According to Art. 826 Civil Code, the parents furthermore
manage the child’s property, although in case of conflict of interests
a special representative is appointed by the Family Court. Parental
rights can be forfeited in case of abuse or gross misconduct.309

Guardianship commences if there is no one to exercise parental
power over a minor or if an adjudication of incompetency has been
made.310 Unless the person who last held parental power had designated
a guardian over a minor or if there is no spouse to become guardian of
an incompetent adult, a guardian is appointed by the Family Court.311
Rights and duties of a guardian are similar to those of parents.
Lineal relatives by blood and siblings have the duty to support
each other, and under special circumstances the Family Court can
extend this duty to other relatives within the third degree.312 However,
there are no provisions concerning the order of persons under duty or
304
Arts. 817 a–j Civil Code.
305
Vide Arts. 811–817 Civil Code.
306
307
308
309
310
311
312
family law 303
receiving support or about kind and volume of support. If no agreement

can be reached, the details will be determined by the Family Court.313
9. Conclusion
The Meiji Restoration forced Japan not merely to open up to the

outside world, but moreover, forced her to undertake a fundamental
modernization in all aspects of social, political, and economic life. Its
legal system was thoroughly westernized, but as one way to combine
western learning with eastern ways, the traditional ‘house’ system
was preserved, with the Meiji Civil Code’s books on Family Law and
Succession being conservative to the extent of solely serving the pur-
pose of maintaining and perpetuating the ‘house’.
The question needs to be answered, whether the postwar Code
completely broke with the past. On a first glance it might seem so,
since the legal statutes are based on fundamentally different princi-
ples, in reality, however, the situation had gradually begun to change
from the period of ‘Taishò democracy’ in the 1920s, as could be seen
in the rather liberal and democratic draft of 1943. This lead one of
Japan’s most famous jurists, Wagatsuma Sakae, to say that although
the revised Code had been ‘a bold leap’, it had been ‘in the direc-
tion of the revision which we had already been trying to effect for
ourselves during the past fifty years’.314 Conservative forces in Japan,
however, took a long time to come to terms with the dissolution of
the ‘house’. After Japan regained sovereignty in 1952, a campaign
for the revival of the ‘house’ and its ‘good ways and beautiful cus-
toms’ was started. Kishi Nobusuke, wartime leader and postwar
Prime Minister, said in 1954: ‘Since the current Civil Code does not
comprise the ‘house’, the family has lost the concept of the ‘house’.
Nobody worships the ancestors anymore, to stress the importance of
one’s descent and to pass it on to the descendants. Can one cling
to individualism, although marriage is the union of husband and
wife? It is often said that children don’t have to care for their par-
ents’ welfare anymore. Old people should go to homes. But is this
the proper Japanese way? It seems to me absolutely necessary to
establish a form of existence of the ‘house’, which does justice to
313
314
Kawashima, note 281, at 57.
304 civil code
Japanese tradition and customs. Only on the spiritual foundation of

such a ‘house’ can a state be built, which will be able to count in
the world.’315 The advocats of the ‘house’s revival, however, imme-
diately faced strong opposition, especially from youth and women’s
organizations, eventually causing them to retreat in the late 1950s,
when it had become clear that their strongholds in the agricultural
regions were gradually being lost due to Japan’s rapid individualism
and urbanization, which furthermore led to a general trend of indi-
vidualization and a growing awareness of individual rights.316
Clearly today, hardly any traces of the ‘house’ can be found in
Japan, and there is no doubt that the law has been thoroughly
democratized.317 It seems to have taken reality a considerable time
to catch up with the letter of the law in a development process char-
acterized by the mutual influence of law on reality and reality on
the law. Various postwar reforms and judicial developments have
reflected the growing awareness of the Japanese people of their rights,
in turn originally instigated by the 1948 reform. Whether the Japanese
family today can be considered democratized as in the terms of the
law, remains a different issue.
315
Murakami, note 273, at 105.
316
Kawashima, note 281, at 58–59.
317
Although some provisions still are reminiscent of the old ‘house’ system, such
as Art. 897 Civil Code on the succession in genealogical records etc., Art. 767 I
Civil Code on resuming a prior surname, Art. 730 Civil Code on the duty of sup-
port as well various provisions of the Law of Family Registration.
law of succession 305
3.5 Law of Succession1
Petra Schmidt
1. Introduction
Since the Tokugawa period (1600–1868) the smallest unit in Japanese

society was the ‘house’ (ie),2 comprising the head of a ‘house’ and
his family. But the ‘house’ was more than a temporary institution for
the living, since it was believed to be an eternal line, linking the
ancestors with generations to come by blood lineage, guaranteeing
the continuance through succession in the patrilineal line.
Upon the head of the ‘house’, vast authorities were bestowed,
which were passed on to his heir upon commencement of succession.
This meant that all rights belonging to the head of the ‘house’ such
as the continuation of the ‘house’name,3 the administration of the
‘house’altar and the seal of the ‘house’, passed on to the successor.
However, not only rights, but numerous duties as well were bestowed
upon the head of a ‘house’, whom confucian doctrine expected to
further the glory and wealth of his ‘house’.
The economic foundation of the samurai ‘house’ in the Tokugawa
period had been the tenure granted to the head of a ‘house’ by his
feudal lord. If the head of a ‘house’ passed away, his heir also suc-
ceeded into his position, but legally the succession into the fief was
regarded as re-enfeoffing, requiring the consent of the feudal lord. It
was only from 1615 that the ‘100 Laws of leyasu’4 stated ‘The eldest
son shall be the heir’.5
1
For a detailed study of Japanese inheritance law see P. Schmidt, Die Entwicklung
des japanischen Erbrechts nach dem Zweiten Weltkrieg [ The Development of
Japanese Inheritance Law after World War II] (Köln . . . 1993).
2
For further details on the ‘house’ see ‘Family Law’.
3
kamei; during the Tokugawa period, only the samurai had the right to bear a
‘house’ name, which was the outward symbol of the eternal line of all previous,
current and future members of the ‘house’.
4
The ‘100 Laws of leaysu’ for a long time were regarded as the will of Tokugawa
leyasu, the first Tokugawa Shògun. Today, however, they are rather seen as an eigh-
teenth century forgery, probably under the reign of Shògun Yoshimune (1716–1745);
see G.v. Otto, Geschichte des Japanischen Strafrechts [History of Japanese Criminal
Law] (Leipzig 1913) 60–61.
5
A. Böx, Das japanische Familiensystem [The Japanese Family System] (Marburg
1940) 48.
306 civil code
If no male heir existed, the fief was taken away from the ‘house’,
inevitably leading the whole family into poverty, making the men
masterless samurai.6 To avoid such a fate, it was common to adopt
a son, even if a ‘house’ had daughters, since daughters were expected
to leave their ‘house’ of origin upon marriage. Although frowned
upon by the samurai, it was also not uncommon among commoners
to adopt the husband of a ‘house’-daughter and confer her right of
succession on him.7
In the early stages of the Tokugawa period, material property was
divided among the family members, but at least among the samurai
this custom was abandoned at the end of the seventeenth century
to prevent excessive splitting and thus an economic ruin of the ‘house’.
The more conservative commoners, however, retained a variety of
institutions, which the samurai had discarded. One such institution
was the distinction between succession to the headship of a ‘house’
and succession to property. This tradition was upheld until increas-
ing pauperization during the Tokugawa period forced at least most
of the farmers to establish only one heir per ‘house’.8 Although among
samurai principally the eldest son was heir, a variety of customs was
used among the commoners, for instance besides primogeniture, ulti-
mogeniture, succession of the eldest child irrespective of sex, or suc-
cession of the most talented child to continue a family vocation.9
2. Law of Succession in the early Meiji Period
As has been explained elsewhere,10 the leaders of Meiji Japan wished

to repeal the so-called unequal treaties, which Japan had concluded
with several Western Powers at the end of the Tokugawa period. One
of the most important prerequisites to realize this aim was a fun-
damental modernization of Japan’s legal system. Among the first
steps to be made in this field, was the compilation of a Civil Code.11
6
rònin; Böx, note 5, at 48.
7
T. Maeda, Ane katoku [Succession by the Eldest Daughter] (Osaka 1976) 1.
8
Since divided succession into property threatened the livelihood especially of
farmers, the Shogunate in 1673 prohibited the division of land of less than one
hectare upon succession. R. Ishii, Nihon hòseishi gaiyò (Outline of the History of
Japanese Law) (Tòkyò 1989) 194; see also C. Steenstrup, A History of Law in
Japan until 1868 (Leiden . . . 1991) 134.
9
Maeda, note 7, at 1.
10
See ‘Family Law’ 2.
11
For further details see ‘Family Law’ 2.
As to succession in the early Meiji period, the existing custom of dis-

tinguishing between succession to the headship of a ‘house’ and suc-
cession into property was continued.
2.1. Succession to the Headship of a ‘house’

As had been the case during the Tokugawa period, samurai as well
as commoners’ ‘houses’ consisted of a househead, his spouse, their
lineal descendants and certain other relatives, with the head of a
‘house’ holding a vast number of rights and duties.
Initially, the succession into the position of a head of a ‘house’ was
opened not only upon death, but succession inter vivos was common
for a variety of reasons, such as abdication or disappearance of the
head of ‘house’, his expulsion from the ‘house’, abolition of the ‘house’,
dissolution of the adoption of an adopted head, marriage or adop-
tion of a son by a female househead or divorce by such a head of
a ‘house’.12
Abdication,13 widely practiced throughout Japanese history, was
unrestricted for commoners in the early Meiji period. However, in
case of a samurai ‘house’ abdication was, according to Great Council
of State Decrees Nos. 171 and 172, only permissible, if the head
was at least 50 years old or disabled, although the latter prerequi-
site was interpreted rather broadly.14 A female head of a ‘house’
could retire anytime, and was obliged to retire upon marriage,15
adoption of a son, or an infant heir reaching maturity.16 Also a minor
head did take precedence over the adopted husband of his mother
and over an adopted heir.17 If a househead suffered for example
from severe mental illness, he could be forced to abdicate upon a
resolution by the family council and a court order.18
12
H. Otake/H. Maki, Nihon hòsei-shi [History of Japanese Law] (Tokyo 1987)
255; see also ‘Family Law’ 3.1.
13
inkyo
14
See ‘Family Law’ 3.1.
15
So-called nyùfu: the position of a female head of house being passed on to her
husband.
16
This was stipulated in the ‘Hereditary Property Law for Peers’ (Ka-shizoku katoku
sòzoku-hò. Decree No. 28 of 1872); Otake/Maki, note 12, at 250.
17
Great Council of State Decree No. 58 of 1875.
18
Other reasons for forced abdication were the disappearance of a househead
for at least two years, or if he had been punished for a crime with imprisonment
for at least one year; see Otake/Maki, note 12, at 250.
308 civil code
In principle only a male could become head of a ‘house’, although

the Great Council of State19 decreed in 1873 that in special circum-
stances a woman could temporarily assume the headship of a ‘house’.20
The principle of primogeniture had already been incorporated in the
‘Outline of the New Criminal Law’21 of 1870, according to which
the eldest son had to be the heir. No other child of a wife or
concubine could succeed into the headship of a ‘house’. But to
determine who exactly was to become the heir,22 a ranking among
the children of wife or concubines, among sons and daughters and
illegitimate children had to be established.23 Principally legitimate
children of a wife24—regardless of their sex—had priority over chil-
dren of a concubine,25 even before sons. From 1881 the head of a
‘house’ could designate a son of a concubine as his successor if he
had no legitimate sons, even if he had daughters with his wife. A
natural child could succeed into the position of head of a ‘house’,
if this position was held by his mother.26
The ‘Outline of the New Criminal Laws’ forbade any designation
of another person as heir, unless the head of a ‘house’ was at least
70 years of age, if no legal heir existed, or if the heir was termi-
nally ill. Only then was a head of a ‘house’ permitted to acknowl-
edge an illegitimate child to secure succession to the headship and
continuity of the ‘house’.27 The ‘Hereditary Property Law for Peers’28
of 1872, however, stated in its first chapter that a head of a ‘house’
to be succeeded could freely appoint an heir. Because of the obvi-
ous contradiction of these legal provisions, the Great Council of State
decreed in July 187329 the absolute priority of legitimate children
19
Dajòkan
20
H. Maki/T. Fujihara, Nihon hòsei-shi [History of Japanese Law] (Tokyo 1993) 276.
21
Shinritsu Kòryò, Great Council of State Decree No. 94 of 1870; in effect until
the enforcement of the Old Criminal Code (Kyù-keihò, Law No.) in 1882.
22
atotsugi
23
Like in the Tokugawa period, distinction was made between legitimate children
(chakushi ), illegitimate children (seishi ) and recognized illegitimate children (shoshi ),
Children of an unknown father or unrecognized children were called ‘natural chil-
dren’ (shisei-shi ).
24
chakushutsu-shi
25
shoshi
26
S. Ninomiya, Hi-chakushutsu-shi sabetsu wa kuzureta [ The Discrimination of
Illegitimate Children is Ended]: 465 Hògaku Seminaa 53, 54 (1993); for further
details see ‘Family Law’ 3.3.
27
See also ‘Family Law’ 3.3.
28
Ka-shizoku katoku sòzoku-ho; Great Council of State Decree 28 of 1872.
29
Decree No. 263.
and moreover, added a provision on the commencement of succes-

sion upon the marriage of an heiress.30
But the Great Council of State also created and maintained some
loopholes for samurai families,31 allowing a head of a ‘house’ to
designate another son as heir, if the eldest son was dead, incurably
ill or if other ‘imperative reasons’ such as irresponsibility or irra-
tionality, endangering the maintenance of the ‘house’, apparent symp-
toms of insanity or loss of speech by nervous disorder, existed. If
such a son was the only child, a blood relative could be chosen as
heir. If a ‘house’ had only female offsprings, a daughter could assume
the position as head of a ‘house’ until a suitable husband was found
to take over the headship.32
Given the utmost importance of the continuance of a ‘house’ under
a male head, adoption had been used as a means of securing succession
and maintenance of the ‘house’ all throughout Japanese history. If
a ‘house’ had no heir, it was common, and from 1870 on, legally
permitted for the nobility and samurai, to adopt a son. The ‘Hereditary
Property Law for Peers’ furthermore allowed poor ‘houses’ with only
infant children to adopt.33 Commoners had to notify the authorities
according to the ‘Household Register Law’ of 1871.34 From 1873
onwards, it became allowed to adopt a person belonging to a different
class. An adoptee principally had to be a blood relation, but the
adoption of ascendants, siblings or their spouses, heads of other
‘houses’, heirs, adopted children of other ‘houses’, or guardians was
not allowed.35 Also in 1873 the Great Council of State permitted
the adoption of a son, if a house had no heir. Such an adoption
was allowed even posthumous.36 The ‘Hereditary Property Law for
Peers’ furthermore provided for an adoption in case of an extremely
poor ‘house’ which had only very young children. From 1875 on,
an adoption was only effected upon registration in the household
register, although the Justice Department in 187737 made clear that,
30
31
These rules were also applied to commoners from 1875.
32
R. Ishii, Nihon sòzokuhòshi [The History of Japanese Law of Succession] (Tokyo
1980) 280.
33
34
Kosekihò
35
R. Ishii, Japanese Culture in the Meiji Era, Volume IX, Legislation (Tokyo
1958) 677; for further details see ‘Family Law’ 3.3.
36
Decree No. 263.
37
Notice No. 46.
310 civil code
like in case of marriage, de facto adoptions would be recognized.38

Principally an adoption had to be made by the head of a ‘house’,
although adoption by an heir was possible, too. No limitations as to
the number of adoptive sons existed. Although the foremost reason
for an adoption was to secure an heir, it was not uncommon to
adopt a son to take care of an infant heir.39 Some other common
forms of adoption were that of a son as a husband for a daughter
of a ‘house’40 or a female heir.41 But Great Council of State Decree
No. 60 of 1877 provided for the exception that a head of a ‘house’ who
had to dissolve his ‘house’ on the grounds of the impossibility of its
continuation, could be adopted into another ‘house’. The head of a
branch ‘house’ could be adopted as heir to the main ‘house’. Special
regulations also applied, if an heir was needed to continue the voca-
tion of a ‘house’. The procedure of registration of an adoption was
similar to the one in case of marriage.42
In case of failure of heirs, it was originally customary that the Family
Council of a samurai ‘house’, whose head had died without an heir,
was given fifty, sometimes a hundred days to find a successor. This
practice became law in 1880,43 but the period in which a new head
of a ‘house’ was to be found was extended by another six months
before the ‘house’ became extinct. In June 1885 the Great Council
of State decided in Decree No. 20 that a ‘house’ would become
extinct six months after the death of the househead or after removal
of his name from the household register without having found a suc-
cessor. In such a case all remaining property had to be put in custody
of relatives of the village head for five years, in case an heir appeared.
After this period relatives could dispose freely of the property or it
would fall to the authorities.44
Upon succession to the headship of a ‘house’, the heir succeeded
to all the property of the ‘house’. Nevertheless, there seems to have been
a custom for an abdicating househead to reserve some of the ‘house’s
property for himself. Great Council of State Decree No. 153 of 1875
38
Ishii, note 35, at 676–677; Otake/Maki, note 50, at 254; also see Mayer,
note 67, at 32.
39
Furukawa, note 18, at 27.
40
mukoyòshi
41
nyùfu; Furukawa, note 18, at 29.
42
43
Great Council of State Decree No. 3.
44
stated in case of succession upon abdication that all immovables

belonging to the ‘house’ were to become the property of the successor
by transfer of title deeds. Such a transfer was not essential in case
the succession had commenced upon death. However, Great Council
of State Decree No. 145 of 1880 stated that all property which had
not been registered otherwise, automatically became the heir’s property.
Naturally debts and claims of the former head of a ‘house’ were
succeeded to by the heir. From 1873 on the same applied to surety
obligations.45
2.2. Succession to Property

During the Tokugawa period ‘house’ members had not been allowed
to own separate property; all property belonged to the ‘house’, and
was administered and disposed of by the head of a ‘house’. But since
the Meiji Government had started to reward individuals for personal
merits, private property became permitted in the early years of the
Meiji period.46
Since such property or income could not be treated as property
of the ‘house’, the institution of private property of individuals was
established for the first time. In 1873 a law was enacted, which abol-
ished the prohibition of the sale of land and granted title deeds to
landowners. This and other subsequent legislations led the courts to
recognize separate property of ‘house’ members.47
Unlike succession to the headship of a ‘house’, succession to such
individual property commenced only upon the death of the person
to be succeeded.
According to a Great Council of State Decree of 1875, every per-
son who had inherited land by means of succession to property,
needed a transfer of the title within six months after the opening of
the succession. In 1880 new regulations were enforced, stipulating
that anyone who inherited land from a person other than a head
of a ‘house’, had to sign the land deed together with his relatives
and submit a petition for deed renewal within six months.48
45
46
N. Hozumi, The New Japanese Civil Code as Material for the Study of
Comparative Jurisprudence (Tokyo 1904) 64.
47
Hozumi, note 46, at 64.
48
312 civil code
3. Law of Succession in the Old Civil Code
Even though the compilation of a Civil Code was one of the first
projects undertaken by the Meiji Government, Japan’s first modern
Civil Code was only completely enacted in 1898. As has been ex-
plained elsewhere,49 initially a number of fruitless attempts to compile
a Civil Code based upon a translation of the French Code Napoleon
had been undertaken, before, in 1881, the ‘Bureau for the Codification
of the Civil Law’50 had been established within the Senate,51 where
compilation work was commenced upon a draft made by French
jurist Gustave Boissonade. A final draft was completed by the Justice
Department’s52 ‘Law Investigation Commission’53 in 1888, and even-
tually promulgated in 1890, to be enforced in 1893.
As to the provisions on succession in this so-called Old Code, it
needs to be mentioned that the already existing concept of the ‘house’
in general was principally incorporated in this Code, and succession
was divided to succession to the headship of a ‘house’ and succession
to property.
3.1. Succession to the Headship of a ‘house’

Under the Old Code, the ‘house’—comprising a househead, his or her
spouse, and relatives by consanguinity or affinity54—was defined as
the basic unit. It was essential for each ‘house’ to have a head, on
whom numerous rights and duties were bestowed. Without a head,
a ‘house’ faced extinction.
Like in the early Meiji period, succession into the headship of a
‘house’ did not only commence upon the death of the head of a
‘house’, but succession inter vivos was recognized in the Old Code as
well. If a head of a ‘house’ abdicated or otherwise lost his position
on the grounds of a female head passing her position to her husband
upon marriage,55 the divorce of such a marriage, or if a head of a
‘house’ lost the Japanese nationality, succession to the headship of a
‘house’ was opened.56
49
See ‘Family Law’ 2.
50
Minpò hensan-kyoku
51
Genrò-in
52
Shihò-shò
53
Hòritsu torishirabe iin-kai
54
Art. 243 Old Code.
55
nyùfu
56
See Arts. 252, 258 Old Code.
Retirement or abdication was allowed, when its purpose was the

succession to the headship of a principal ‘house’ by the head of a
branch ‘house’, when an adopted son was to succeed to his ‘house’ of
origin, or when circumstances compelled a head of a ‘house’ to enter
another ‘house’ as an adopted son. In any case, abdication was only
permitted, if succession had been secured.57
As to the order of succession to the headship, the Old Code stip-
ulated male primogeniture, and provided the following rules for the
determination of an heir:
1. Among the lineal descendants who were members of the ances-
tor’s ‘house’, the person having the closest degree of relation to
the ancestor took precedence;
2. among lineal descendants of the same degree the male, whether
legitimate or not, took precedence over the female, and
3. among several male (or female) children the first born took prece-
dence. However, the legitimate child took precedence over the
illegitimate child who was acknowledged by the father.58
Like before, a head of a ‘house’ or an heir who had no male
offsprings, could adopt a son to ensure the maintenance of the
‘house’.59 In general, the Old Code’s provisions on adoption basi-
cally followed the existing rules: an adopter had to be older than the
adoptee,60 and a person who already had a son as an heir to the
headship of a ‘house’ could not adopt another son.61 The right to
adopt was reserved to the head of a ‘house’ or an heir into such a
position.62 A married person needed his or her spouse’s consent for
an adoption.63 An heir or adopted heir could not be adopted by
another ‘house’.64
The new head of a ‘house’ succeeded to the family name, family
lineage, titles of honour and all property as well as to the ownership
of the ‘house’s’ genealogical records, hereditary property, articles of
worship, tombs, firm name and trade marks.65
57
58
Ishii, note 35, at 689; also see ‘Family Law’ 4.3.
59
Vide Art. 158 Old Code.
60
Art. 106 I Old Code.
61
Art. 107 Old Code.
62
Art. 109 Old Code.
63
Art. 110 Old Code.
64
Art. 11 Old Code.
65
314 civil code

Since the Old Code permitted all members of a ‘house’ to own pri-
vate property,66 the Old Code comprised not only provisions on the
succession to the headship of a ‘house’, but also on succession to
property. Unlike in case of succession to a headship, succession to
property was opened only upon the death of a ‘house’ member.67
Successors in the first rank were lineal descendants of the person to
be succeeded; the surviving spouse stood next in line of succession.
If neither offsprings nor a spouse existed, the property was inherited
by the head of a ‘house’.68 It was possible to determine shares and make
legacies by will, although this freedom was restricted by the provi-
sions of legally secured portions, which constituted half of the estate.69
4. Law of Succession in the Meiji Civil Code 70
As mentioned before,71 the Old Code was set to be enforced from

1 January, 1893. However, the so-called codification debate between
the Anglo-Saxon and the French law schools erupted, with the former
demanding the postponement, the latter the enforcement of the Code.
As a consequence of this debate, the enforcement of the Code was
postponed in 1892. The Old Code’s opponents had criticized it as
being nothing but a blind imitation of the Code Napoleon, and
including too many innovations especially in the field of Family Law
and Succession, which were feared to destroy loyalty and filial piety.
In 1893 a new committee was established. Based on the pandecten
system, the ‘Codification Committee’72 studied comparative law, albeit
taking into consideration existing Japanese laws and customs. The
committee drafted a new Code, the first three books of which were
published in 1896,73 and the books on ‘Family’ and ‘Succession’ in
66
Art. 245 Old Code.
67
Art. 992 Old Code.
68
T. Taniguchi, Über das heutige japanische Familiensystem [ The Japanese
Family System Today]; 10 Zeitschrift für ausländisches und internationales Privatrecht
477, 485 (1936).
69
70
For further details see Schmidt, note 1.
71
See 3.
72
hòten chòsa-kai
73
Law No. 89.
1898.74 The whole Civil Code went into force on 16 July, 1898.75
First of all the Meiji Civil Code did not only distinguish between
designated and statutory succession, but also between succession to
the headship of a ‘house’76 and succession to property.77
4.1. Succession to the Headship of a ‘house’ 78

The so-called Meiji Civil Code established the ‘house’ as the basic unit
of Family Law and Law of Succession, comprising the head of a
‘house’ and its members.79 Vast authorities were bestowed upon the
head of a ‘house’, who had to reign the ‘house’, keep up order within
it, protect and guide its members, and to promote the honour and
material prosperity of the ‘house’. His position as link between the
ancestors and future generations of the eternal ‘house’ was especially
demonstrated by his right and duty to carry out the ceremonies for
the worship of the ancestors, and to administer the property of the
‘house’, which had been passed on from the ancestors.80
A ‘house’ had to have a head. The head of a ‘house’ was its chief
and director, and he or she was in duty bound to see and look after
all affairs of the ‘house’. There was no ‘house’ without a head. The
act of becoming a new head of a ‘house’ and thus succeeding to all
rights and duties of the headship was called katoku sòzoku.81
Succession to the headship of a ‘house’ commenced not only, when
a head of ‘house’ died.82 Succession inter vivos was also widely prac-
ticed, for instance when a head of a ‘house’ resigned from the head-
ship,83 lost Japanese nationality, left the ‘house’ because of the
74
Law No. 9.
75
For further details see ‘Family Law’ 2.
76
katoku sòsoku or kamei sòzoku
77
isan sòzoku
78
For a detailed study see e.g. R. Ikeda, Die Hauserbfolge in Japan [ Japanese
Succession to the Headship of a House] (Berlin 1901).
79
Art. 746 Meiji Civil Code defined the ‘house’ as a group of persons with the
same surname. Members of the ‘house’ were its head and his relatives or the rel-
atives of a former head as well as relatives who had entered the ‘house’ upon mar-
riage and adoption (Arts. 732–735 Meiji Civil Code).
80
Also see ‘Family Law’ 5.
81
J.E. DeBecker, Annotated Civil Code of Japan Vol. IV (London 1910) 3.
82
Including the case of a ‘judicial death’ acc. to Art. 31 Meiji Civil Code.
83
See Arts. 752–757 Meiji Civil Code.
316 civil code
dissolution or annulment of a marriage84 or adoption85 or when a

female head of a ‘house’ married, with her husband being taken in
as a nyùfu86 or in case of divorce of such a marriage.87
Abdication88 was still widely practiced and permitted by the Code,
if a head of a ‘house’ was at least 60 years old, and succession
had been secured.89 A female head could retire voluntarily at any
time,90 but she had to retire upon marriage or adoption of a son.91
Because of the importance of the head of a ‘house’ for the continuity
of the ‘house’, the Meiji Civil Code provided a number of ways to
find an heir for the position as head of a ‘house’. First priority was
given to a legal heir,92 next to an heir appointed by the person to
be succeeded,93 then to an heir chosen by the Family Council,94 and
finally to an ascendant heir.95
A legal heir was a member of the ‘house’ and lineal descendant
of the head of a ‘house’ to be succeeded. However, he did not
necessarily have to be a blood relative of the ancestor or even possess
the legal status of a child or grandchild. Therefore an acknowledged
illegitimate child96 and even an illegitimate child97 could succeed, if
there were no heirs of a preferential rank. Principally relatives by
affinity, even if lineal descendants, could not succeed; the only exemp-
tion to this rule was the case of a nyùfu,98 whereas the adoption of
a husband for a daughter of the ‘house’ other than an heiress99 did
not affect the order of succession.100 If more than one such person
84
A person who entered a house upon marriage had to leave this house after
divorce or annulment of the marriage, Art. 778 Meiji Civil Code.
85
A person who had been adopted into a house had to leave such ‘house’ after
the dissolution or annulment of adoption; Art. 852 Meiji Civil Code.
86
Acc. to Art. 736 Meiji Civil Code, a nyùfu husband of a female househead
becomes the head of her house.
87
Art. 964 Meiji Civil Code; a nyùfu husband has to return to his house of ori-
gin upon a divorce; Art. 739 Meiji Civil Code.
88
inkyo
89
90
91
92
93
94
95
96
shoshi; see ‘Family Law’.
97
shisei-shi; see ‘Family Law’.
98
Arts. 971, 736 Meiji Civil Code; see ‘Family Law’.
99
mukoyòshi; see ‘Family Law’.
100
existed, the one with a nearer degree of relationship took precedence;101

among persons of the same degree of relationship, males had priority,102
legitimate took precedence over illegitimate children,103 and legiti-
mate children and acknowledged illegitimate children—male and
female—took precedence over illegitimate children.104 Among per-
sons with the same rank as the aforementioned, the older one took
precedence.105 If such a person had already died prior to the com-
mencement of succession or had lost his or her right to succession,
Art. 974 of the Meiji Civil Code provided for the succession of his
or her lineal descendants instead.106
If no legal heir existed, the head of a ‘house’ to be succeeded
could designate an heir too.107 A designation lost its effect, when a
legal heir came into existence.108 If neither a legal nor a designated
heir existed, the father of the head of a ‘house’ to be succeeded, the
mother, if no father existed, or, if neither parents existed, the Family
Council109 chose an heir from among the members of the ‘house’
in the following order: a spouse, who was a daughter of the ‘house’,
brothers, sisters, other spouses and lineal descendants of siblings.110
If still no heir could be found, the nearest lineal ascendant of the
last head of a ‘house’ succeeded, with males once again taking prece-
dence over females.111
The last step to be taken to find an heir was for the Family Council
to choose one from among the relatives and members of the ‘house’ of
the last head, or from among ‘house’ heads of branch ‘houses’ or
members of the principal or a branch ‘house’. If the Council failed to
find such person, it could choose an heir from among other persons.112
Unlike appointed, chosen or ascendant heirs, a legal heir did not
have the right to renounce the succession or accept it with reserva-
tions.113 The legal heir furthermore had a legal share of one half of
101
Art. 970 I No. 1 Meiji Civil Code.
102
103
104
105
106
shòso sòzoku: succession in place of lineal ascendant.
107
108
Art. 979 II Meiji Civil Code.
109
shinzoku-kai; see ‘Family Law’.
110
111
112
113
318 civil code
the estate, whereas the secured share of other heirs to a ‘house’ was
one-third of the estate.114
A presumptive heir to the headship of a ‘house’ was deprived of
the right to succession if he had committed certain acts contrary to
morality and human nature, or who by his acts had been enemy to
public and private interests, if such a person had been sentenced for
having killed or attempted to kill the head of a ‘house’ or a person
who stood in a preferential rank in line of succession; if one knew
about another having committed such crime and failed to report it;
if a person threatened or defrauded the ancestor and prevented the
latter from making, annulling, or altering a will or caused him to do
so or if one had forged, altered, destroyed or concealed a will.115 Upon
court decision the person next in rank would succeed in such a case.
Furthermore, a head of a ‘house’ could disinherit116 an heir
presumptive for reasons which threatened the continuance of the
‘house’ and the line of ancestors or to disgrace the name of the
‘house’. This was for instance the case when he ill-treated or grossly
insulted the head of a ‘house’, was disqualified for the ‘house’ head-
ship for physical or mental reasons, if he had been sentenced to a
penalty for an offence which disgraced the name of the ‘house’, or
if he had been adjudged incompetent for being a spendthrift.117
As to the effects of succession to the headship of a ‘house’, Art. 986
of the Meiji Civil Code stipulated that the heir succeeded from the
moment of the commencement of the succession to all rights and
duties118 which the former head of ‘house’ had possessed, unless they
had been of a strictly personal nature. A special privilege of succes-
sion to a ‘house’ was the succession to the ownership of genealogi-
cal records,119 of utensils for religious purposes,120 and of tombs and
burial grounds.121 The reason for this provision was that these objects
114
115
116
haijo
117
118
Such rights and duties did not only include rights and duties with respect to
property, but also with respect to relationship, such as the right to take persons into
the house or exclude them, the duty of support etc.; DeBecker, note 81, at 27.
119
keifu: documents relating to the lineage and genealogy of the house; DeBecker,
note 81, at 28.
120
saigu: vessels, utensils, furniture and all other things which were used for the
worship and commemoration of the gods or deities and the ancestors; DeBecker,
note 81, at 28.
121
Vide Art. 987 Meiji Civil Code; funbo: the ground and all sorts of construc-
tions thereupon dedicated to the ancestors of the house; DeBecker, note 81, at 28.
were sacred embod-iments by means of which the memory of the

ancestors and the name and honour of the ‘house’ were held in
respect and reverence. They could not be assigned and passed from
person to person without violating common human feelings; and for
the same reason the seizure of genealogical records and utensils for
religious purposes was forbidden in the Code of Civil Procedure.122

Art. 748 of the Meiji Civil Code recognized the individual ‘house’
members’ right to own private property, which was passed on separately
from the headship and property of the ‘house’. Therefore the second
kind of succession, as recognized by the Meiji Civil Code, was suc-
cession to property, which included only the succession to the prop-
erty of a ‘house’ member upon his or her death.123
Like under the Old Code, succession to property commenced only
upon death.124 Successors in the first rank were direct lineal descendants,
even if they belonged to a different ‘house’. If more than one such
person existed and if they stood in the same relationship with the
person succeeded, the successors received equal shares. The spouse
was successor in the second rank, and if there were neither children
nor spouse, the lineal ascendants and finally the head of a ‘house’
inherited.125
The procedure in case of failure of heirs126 in the Meiji Civil Code
differed considerably from previous practice and the provisions in the
Old Code. Firstly, if it was uncertain whether an heir existed, the estate
formed a juridical person.127 If, within two months after the court
122
Minji Soshò-hò (Code of Civil Procedure) Law No. 29 of 1890, Art. 570 Nos.
10, 11; for a German translation see K. Vogt, Japanische Civilprozeßordung und
Gerichtsverfassungsgesetz [ Japanese Code of Civil Procedure and Court Organization
Law] (Yokohama 1920); As Hozumi (note 46, at 59–61) pointed out, succession in
Japan had originally meant succession to sacra, and although the Civil Code of
1898 had actually demonstrated that at the end of the Meiji period Japanese suc-
cession was already about to leave behind the idea of succession to status for suc-
cession to property, traces of the first element could still be found in the Code.
Art. 987 Meiji Civil Code read: “The ownership of the records of the genealogy of
the house, the article used for house-worship and the family tombs constitutes the
special right of succession to the headship of a house.”
123
124
125
126
sòzoku-nin no kòketsu
320 civil code
having given public notice of the circumstances,128 no heir had been

found, all creditors of the succession and legatees were notified to pre-
sent their claims within a period of not less than two months.129 If
after the elapse of this period no heir was found, the court had to
give public order to notify any heirs to assert their rights within a
period of at least one year.130 After this period the property fell to
the National Treasury.131
According to Art. 997 of the Meiji Civil Code, a person, who had
been sentenced to punishment for killing or having attempted to kill
the person to be succeeded to or another successor in the same or
in a preferential rank, as well as persons mentioned in Art. 969 Nos.
2–5 of the Meiji Civil Code,132 lost his or her right to succession.
Like in the case of succession to a ‘house’133 an ancestor could dis-
inherit a presumptive heir, if he or she had ill-treated or grossly
insulted the ancestor.134
As to the effects of succession to property, an heir succeeded from
the moment of the commencement of the succession to all the rights
and duties belonging to property, unless they were of an exclusively
personal nature.135 When several heirs in the same rank existed, their
portions of inheritance were equal. But an illegitimate child received
only half the share of a legitimate child.136
An heir had to either absolutely137 accept or to accept with limita-
tions138 or renounce139 succession within three months from the time
he learned about the commencement of the succession.140 If an heir
accepted absolutely, he or she succeeded without limitations to the
rights and duties of the ancestor.141 Even if the heir had not declared
absolute acceptance, he was deemed to have succeeded absolutely, when
127
128
Vide Art. 1052 II Meiji Civil Code.
129
130
131
132
Disqualification of an heir to the headship of a house.
133
134
135
136
137
tanjun shònin
138
gentei shònin
139
hòki
140
141
he had disposed of all or of part of the estate, if he had not declared

limited acceptance or renunciation or if he had concealed, secretly
consumed or failed to register the property in the inventory after
having declared limited acceptance or renunciation.142
If an heir had declared limited acceptance, he had to pay obligations
and legacies of the ancestor only with the inherited property. But
since the procedure of limited acceptance was rather difficult, it was
hardly made use of.143
Wills,144 which under the Old Code had merely been an instrument
to make legacies, now had a chapter on their own, but since the prac-
tical importance of wills in Japan has never been very great, only a
few remarks on this matter will be made.
The legal age to make a will was 15;145 a testator could wholly
or partly dispose of his property by a general146 or particular title.147
Furthermore, an ancestor could adopt,148 disinherit,149 or designate
an heir150 by will. Like the Old Code, the Meiji Civil Code recog-
nized the holographic, notarial and secret testament as ordinary
forms, and various exceptional forms in addition.151
As to legally secured portions,152 in case of succession to property,
a lineal descendant’s secured portion was one half of the property,
in case of a spouse or a lineal ascendant one-third.153 If more than
one heir in the same rank existed, the legal portion had to be equally
divided, although illegitimate children received only half the share
of legitimate children.154 Since donations155 and legacies156 were con-
sidered part of the successive property, a person entitled to a legal
portion could demand the reduction of such gifts or legacies, if nec-
essary for the preservation of the legal portion.157
142
143
144
yuigon
145
146
hòkatsu meigi no izò
147
tokutei meigi no izò; see Art. 1064 Meiji Civil Code.
148
149
150
151
Arts. 1067, 1076 et seq. Meiji Civil Code.
152
iryù-bun
153
154
155
zòyo
156
izò
157
Arts. 1132 et seq. Meiji Civil Code.
322 civil code
5. Prewar Development 158
Hardly two decades after the enforcement of the Meiji Civil Code,
critical voices were raised, calling for a reform, caused by the liberal
and democratic tendencies of the Taishò period (1912–1926). Seemingly
in answer to these calls, but in reality to preserve the status quo,
the conservative government in 1919 established the ‘Temporary
Council on the Legal System’159 to investigate a revision of the Civil
Code. In 1925 and 1927 this Council published the ‘Outline of a
Reform of the Civil Code’,160 recommending various amendments to
the Code’s books on Family and Succession. The 34 articles on
‘Family’ and the 17 on ‘Succession’ proposed for instance that an
heir to the headship of a ‘house’ should only succeed to such property
as was essential for the preservation of the ‘house’, with the remainder
being distributed to other successors, like the spouse, and other
offsprings. Also, general preference of a legitimate child, irrespective
of sex, to an illegitimate child was advised. Furthermore, the council
recommended the reduction of the share of inheritance of non-
members of a ‘house’ to one half of the share of members of the
‘house’ in case of succession to property. The spouse was proposed
to become a successor in the same rank as lineal descendants. Also,
legal shares were advised to be raised to two-thirds of the estate if
the spouse and lineal descendants were heirs, and to one half, if the
spouse was the only heir; and finally in case of a failure of heirs,
siblings should have precedence over the head of a ‘house’.
Based on these recommendations a reform draft was completed
in 1943, but, being far too liberal, never passed as law.161
6. Current Law of Succession162
After Japan’s defeat in the Second World War, one of the major aims
of the Occupation authorities was a thorough democratization of
Japan, including her legal system. One of the first steps taken in this
158
Also see ‘Family Law’ 6.
159
Rinji hòsei shingi-kai
160
Minpò kaisei yòkò
161
Schmidt, note 1, at 13; also see ‘Family Law’ 6.
162
For a short survey on current Japanese inheritance law see P. Schmidt,
Grundzüge des Japanischen Erbrechts [An Outline of Japanese Law of Succession]
90 ZEV 8 (1996).
direction was the compilation of a new Constitution, which was pro-

mulgated on 3 October 1946 and enforced on 3 May, 1947.163
Among the fundamental principles of Japan’s postwar Constitution
is that of equality, which is postulated generally in its Art. 14164 and
provided for family relations in particular in Art. 24.165 These provisions
caused heated debates as to whether the existing ‘house’ system would
be compatible therewith. Although the conservative elements in Japan’s
society and politics saw no obstacle for the maintenance of the system,
leading jurists in the Ministry of Justice and the ‘Temporary Council
on the Legal System’ foresaw that the judiciary would adjudicate the
inconstitutionality of the ‘house’ and all related provisions. Moreover,
the failure of the efforts for democratization was feared, if the ‘house’
system was not abolished. This trend was already shown in the ‘Law
Concerning Temporary Adjustments of the Civil Code Pursuant to
the Enforcement of the Constitution of Japan’ of May 1947,166 which
among other points stipulated the repeal of all legal provisions con-
cerning the ‘house’, the abolition of succession into the headship of
a ‘house’ and the spouse’s right to succession.167 Eventually, the abo-
lition of the ‘house’ system on the legal level could only be realized
by persuading the advocates of the ‘house’ system that despite its
abolition on the legal level, it would be preserved on the level of
morality as one of Japan’s ‘good ways and beautiful customs’.168 The
revised Civil Code was published on 22 December, 1947 as Law
No. 222 and enforced on 1 January, 1948.169
163
Nihon koku-kenpò, for an English translation see D.F. Henderson [ed.], The
Constitution of Japan—Its First Twenty Years, 1947–67 (Seattle & London 1968).
164
Art. 14 I of the Japanese Constitution reads: “All of the people are equal
under the law and there shall be no discrimination in political, economic or social
relations because of race, creed, sex, social status or family origin.”
165
Art. 24 of the Japanese Constitution reads: “I. Marriage shall be based only
on the mutual consent of both sexes and shall be maintained through mutual coop-
eration with the equal rights of husband and wife as a basis. II. With regard to
choice of spouse, property rights, inheritance, choice of domicile, divorce and other
matters pertaining to marriage and the family, laws shall be enacted from the stand-
point of individual dignity and the essential equality of the sexes.”
166
Nihon koku-kenpò no shikò ni tomonau òkyù-teki sochi ni kansuru hòritsu, Law No. 74
of 1947; for an English translation see K. Steiner, ‘Postwar Changes in the Japanese
Civil Code: 25–3 Washington Law Review and State Bar Journal (1950) 286, 294
et seq.
167
Arts. 3, 5, 6 of the Law Concerning Temporary Adjustments.
168
For details see S. Wagatsuma, Sengo ni okeru minpò kaisei ni keika [The Course
of the Postwar Revision of the Civil Code] (Tokyo 1989); Schmidt, note 1, 13
et seq.; ‘Family Law’ 7.
169
As amended by Law No. 79 of 1991; for an English translation see Eibun
Hòrei Sha [ed.], EHS Law Bulletin Series (Tokyo 1991).
324 civil code
6.1. Legal Line of Succession

In current Japanese law of succession all prospective successors are
determined by law; designation or altering of scale or order of suc-
cessors is not permitted. The line of succession is based on the
parental system and within this by lineal representation.170
Successors are divided into relatives by blood and the spouse.
According to Arts. 887, 889 I of the Civil Code the following persons
will succeed in the following order: descendants of the person to be
succeeded, lineal ascendants, siblings. If more than one descendant
or lineal ascendant exists, the one in a closer relationship to the per-
son to be succeeded has priority. There are no more heirs of fourth
or further rank. If children of the person to be succeeded exist, the
heirs of second and third rank will have no share. A surviving spouse
is without exception an heir.171 If no children, lineal ascendants or
siblings exist, the spouse is the sole heir. If there are no heirs, the
estate falls to the National Treasury. In 1962 Art. 958 b Civil Code
was introduced, enabling the Family Courts to give the whole or part
of the estate to a person who lived with the person to be succeeded
or who had some other special connection with such person, if no
legal heirs can be found.
A prospective heir can lose his right of inheritance because of
disqualification or disinheritance. Art. 891 Civil Code enumerates as
grounds for incapacity for succession such acts as killing or attempted
killing of the person to be succeeded or other prospective heirs, fail-
ure to report on such a crime, forgery of a will or forced alteration
of a will. If any of the aforementioned grounds applies, the heir auto-
matically loses his right to succession and to the legally secured por-
tion. The system of disinheritance allows a person to be succeeded
to apply to the Family Court for the disinheritance of a presumptive
successor, if the latter has treated the former cruelly, insulted him
or has committed any other gross misconduct.172
The decision on the shares of inheritance is in the first place up to
the person to be succeeded to. If the ancestor had not determined
shares,173 they are decided by law. However, the statutory as well as
170
Arts. 887 et seq. Civil Code.
171
172
173
Vide Art. 902 Civil Code.
the determined portions are merely the successors’ abstract shares of

the inheritance. The concrete shares are determined under consid-
eration of gifts and legacies. Since an amendment in 1980 Art. 900
of the Civil Code provides that in case the spouse and children are
left, the spouse receives half the estate, the other half is to be equally
distributed among the children. If the spouse and lineal ascendants
are the heirs, the spouse receives two-thirds, the parents or grand-
parents one-third. In case the spouse and siblings are left, the for-
mer receives three-quarters, the siblings one-quarter. If the spouse is
the only successor, he or she inherits all of the estate.174 Naien spouses
have no right to succession and illegitimate children receive only half
the share of legitimate children.175
As mentioned earlier, a person to be succeeded can determine
shares. If such determination contravenes the provisions concerning
legally secured portions, the judiciary grants the successor, whose legally
secured portion has been reduced, a claim on cutting the gift or
legacy.176 According to Art. 903 a Civil Code a testamentary or other
gift is treated as being part of the estate. The value of such a gift
is determined by its value at the time the gift was made.177
A provision that deserves to be mentioned as a relict of the pre-
war Code is Art. 897 Civil Code which deals with the succession of
genealogical records, utensils of religious rites and of tombs and bur-
ial grounds. Despite the new Code’s adherence to the principle of
equality, these items are not part of the estate and are to be suc-
ceeded by the person who keeps them by custom or who has been
designated by the person succeeded.
174
After the initial postwar reform the 1948 Civil Code stipulated in Art. 900
the following shares: if the spouse and children were heirs: one-third for the spouse,
two-thirds for the children. If the spouse and lineal ascendants were left, they
received half of the state each, and if the spouse and siblings succeded, the spouse
received two-thirds, the siblings one-third. The amendment of 1980 was especially
aimed at securing the livelihood of the surviving spouse; K. Hiraga, Sòzoku-hò no
kaisei [The Reform of the Law of Succession]: 942 Hanrei Jihò 7, 7–8 (1979).
175
Art. 900 No. 4 Civil Code; regarding the debate concerning the discrimination
of the illegitimate child’s inheritance right see P. Schmidt, Japanische Rechtsprechung—
Die Festlegung des gesetzlichen Erbteiles eines nichtehelichen Kindes auf die Hälfte
dessen eines ehelichen Kindes ist verfassungskonform [The Determination of an
Illegitimate Child’s Share of Succession as One Half of the Share of a Legitimate
Child is Constitutional] 1 Zeitschrift für Japanisches Recht (1996).
176
Saikò saibansho (Supreme Court) 29 May 1962, 14–10 Katei saiban geppò 11.
177
326 civil code
If the person to be succeeded has determined the concrete shares

by will, the estate is distributed according hereto. Otherwise the co-
successors can agree on the exact way of partition. If such an agree-
ment cannot be reached, each heir can apply to the Family Court
for distribution.178 In any case the basis for the distribution has to
be the kind and nature of the estate as well as—since the amendment
of 1980—age, occupation, state of mind and body, and living condition
of each successor. Art. 904 a Civil Code, also introduced in 1980,
provides for the consideration of special contributions to the estate
made by one of the heirs by providing labour, service or financial
support, or by nursing the person to be succeeded.
Within three months from the time a successor became aware of
the commencement of succession, he has to renounce or absolutely
accept successions or accept it with qualification.179 Renunciation or
qualified acceptance have to be declared to the Family Court after
preparing an inventory. When an heir disposes of the whole or part
of the estate, does not declare renunciation or qualified acceptance at
the Court or conceals, consumes or falsifies the inventory after having
declared renunciation or acceptance with reservation, he is deemed
to have accepted absolutely.180 If an heir accepts with reservation,
he is liable for obligations of the person succeeded to only up to the
amount of the inherited estate.181 If an heir accepts succession
absolutely, he succeeds into all rights and duties without limitation.182
The spouse, children and—if no children exist—lineal ascendants,
have a secured portion in the estate, of which they cannot be de-
prived.183 When parents or grandparents are the only heirs, one-third
of the estate is reserved for them. In case of the spouse and children
it is half of the estate.184 A person who disqualified for succession or
was disinherited, is not entitled to a secured portion.
178
179
It is generally acknowledged that the period of three months starts from the
time, when the presumptive heir has become aware of the condition of the estate,
especially whether it includes any liabilities; Supreme Court 27 April 1984, 38–6
Saitei saiban-sho minji hanrei-shù (Minshù) 698.
180
181
182
183
184
Before the amendment of 1980 secured portions were half of the estate for
spouse and/or children, otherwise one third.
6.2 Testate Succession

According to Art. 961 Civil Code, any person over 15 years of age
can make a will. Although the Code acknowledges the freedom of
will, appointment of successors is not permitted. Dispositions allowed
by testament are the acknowledgment of an illegitimate child,185 des-
ignation of a guardian186 or a supervisor of a guardian,187 disinheritance
of presumptive successors,188 revocation thereof,189 or designation of
executors.190 Furthermore, in the field of property law a testator can
carry out an endowment by will,191 designate shares in succession,192
designate the mode of partition or forbid partition.193 A will can fur-
thermore include instructions concerning the co-successors’ warranty,194
legacies,195 instructions in case a donee renounces a legacy,196 in case
of a reduction of the value of a testamentary gift,197 and in case of
an abatement of such gifts.198 Although not explicitly stated in the law,
the designation of the successor to genealogical records etc.199 release
from taking gifts into account,200 and the designation of the recipient
of life insurance payments,201 are possible.
According to Art. 960 Civil Code, a will is a onesided act, which has
to be made in conformity with the formalities prescribed in the Code.
There are three kinds of ordinary wills: by holographic document, by
notarial document, and secret will.202 Extraordinary forms are provided
for in emergency situations such as imminent danger of death, in
isolation for contagious disease, on a ship, or in case of a Japanese
resident in a foreign country.203
185
186
Art. 839 I Civil Code.
187
188
189
190
191
192
193
194
195
196
197
198
199
200
Art. 903 III Civil Code.
201
Art. 676 Commercial Code: Shòhò, Law No. 48 of 1899, as amended by Law
No. 66 of 1994; for an English translation see
202
203
328 civil code
A will becomes effective upon the death of the testator, unless an

application to the Family Court is necessary.204 Under certain circum-
stances a will is regarded as invalid, such as, in case of the testator’s
incapacity205 or if the will does not follow the proper formalities.206
7. Conclusion
As has been explained elsewhere,207 the Meiji Civil Code, after a series
of drafts, which had been rejected for being too liberal and too far
removed from Japanese tradition, followed the custom of male pri-
mogeniture for the purpose of the perpetuation of the ‘house’. The
temporary democratic movement of the 1920s could not succeed in
liberalizing and individualizing the Civil Code. It was only after the
defeat in the Second World War that the Code underwent a thor-
ough revision to instigate democracy in family relations, by abolish-
ing the ‘house’ system, and introducing equality among family members
in succession.
But after Japan had regained its sovereignty in 1952, conservative
forces tried to revive the ‘house’ system. However, those plans fell
through because of the determined opposition mainly from youth and
women’s organizations, but also due to the fact that the conservatives
were losing their rural strongholds in the wake of the effects of indus-
trialization and urbanization, brought about by Japan’s rapid eco-
nomic growth.
One of the major purposes of the attempts to revive the ‘house’
system had been the re-introduction of an exclusive heir system in
agricultural families. Such a system was sought because it was feared
that Japan’s already miniature farming units would be excessively
fragmented by the Civil Code’s principle of equal succession and
therefore destroy the productivity of most farmers. From 1947 until
1960 several bills were introduced, which allowed one child of a farmer
to hold all of the agricultural land, as long as the other children
were compensated.208 These bills could not pass, but loopholes were
204
Arts. 984, 893, 894 Civil Code.
205
206
207
See ‘Family Law’.
208
Schmidt, note 1, at 99 et seq.
created in other legislation, such as the 1961 ‘Basic Law of Agri-

culture’,209 whose Art. 16 reads: “With the aim of preventing the
fragmentation of independent agricultural enterprises and agricultural
family businesses . . . the state takes necessary measures to enable one
of the co-successors to continue the management of such an enter-
prise in case of succession’.210
In practice, however, such a special legislation proved to be unnec-
essary, for especially in the 1950s and 1960s it seemed to have been
very common for children other than the heir who would manage
the farm or other enterprise, to waive their right to succession either
formally or de facto.211 But because of a complex variety of causes,
such as the intensification of the activities of democratic movements
since the late 1960s, with the Japanese people’s rising awareness of
their individuality and rights, growing urbanization and the youth
turning their back on agricultural work, soaring land prices and
higher expectations of one’s living standards, the democratic princi-
ples of the Law of Succession seem to have eventually penetrated
Japanese society.
209
Nògyò kihon-hò; Law No.
210
Schmidt, note 1, at 105.
211
For a detailed study of this matter see Schmidt, note 1, at 117 et seq.
CHAPTER FOUR
COMMERCIAL AND CORPORATE LAW IN JAPAN:

LEGAL AND ECONOMIC DEVELOPMENTS AFTER 1868
Harald Baum/Eiji Takahashi
4.1 Introduction*
1. Legal Overview
This chapter deals with the historical development of trade and eco-
nomic law, with a focus on the Japanese firm, its development, and
its regulation.1 Taken literally, this subject encompasses a wide range
of regulatory topics, from commercial to corporate law and indus-
trial relations, and from antitrust law to the regulation of financial
markets and foreign trade, to name but a few important aspects.
Some of these areas are discussed in other contributions to this vol-
ume.2 We will concentrate on commercial and corporate law with a
sidelook at securities and banking laws.
The pertinent regulations are found in various statutes which have
been adopted at different times and shaped after distinctively divergent
foreign concepts. The organizational side is covered by the Shòhò, the
Commercial Code of Japan,3 which contains most of the corporate
law, namely the provisions on the stock corporation (Chap. 2). The
* Abbreviations of German journals used in the text: RabelsZ = Rabels Zeitschrift

für ausländisches und internationales Privatrecht; ZJapanR = Zeitschrift für Japanisches Recht.
1
Where possible, special emphasis has been laid on the citation of relevant mate-
rials in Western languages to facilitate further research for readers not capable of
reading Japanese sources. Occasional exceptions notwithstanding this chapter is
based on materials published until 1998, and legal developments are taken into
account until that year.
2
Labour law and antitrust laws are discussed in Chap. 6 and Chap. 5.8 respectively.
3
Law No. 48 of 1899 as amended by Law No. 71 of 1997. For an English trans-
lation, see Eibun-Horei-Sha, EHS Law Bulletin Series Vol. II., JA, No. 2200 [here-
inafter cited as EHS]. EHS is a Tokyo-based legal publisher that edits the continually
updated English translation of Japanese statutes. The translation covers the Shòhò
as amended to 1994.
introduction 331
code is supplemented by some additional, for the most part newer

laws referring to specific fields.4 The Shòhò dates back to the year
1899 and was originally strongly influenced by German law, as will
be explained in greater detail later. The relationship between the
stock corporation and the capital markets is regulated in the Shòken
torihiki-hò, the Japanese Securities and Exchange Law of 1948. This
law was modeled on the federal securities regulations of the United
States, especially the U.S. Securities Exchange Act of 1934, from
which it originally copied large sections, partly in literal translation.5
These two examples show the different—and quite varying —
influences on modern Japanese trade and economic law. Of course,
the adopted Western concepts were grafted onto an entirely different
legal culture—especially at the beginning of the modernization—and
therefore there has been considerable assimilation and further devel-
opment according to Japanese necessities and customs in the decades
following their implementation.6 Again, this will be discussed in greater
detail later. As a result, Japan’s laws and regulations governing its
economy and business reveal a multi-layered and sometimes even
contradictory configuration that gives them a distinctive—if not, as
is sometimes claimed, a unique—structure.7 The legal developments
are, of course, intertwined in a dialectical process with the political
and economic changes in Japan, or—perhaps more precisely—they
are to a significant extent direct responses to rather abrupt politi-
4
Cf., e.g., the Kabushiki kaisha no kansa-tò ni kansuru shòhò no tokurei ni kansuru hòritsu
[Law on Special Cases under the Commercial Code on the Audit of Stock
Corporations] Law No. 22 of 1974 as amended by Law No. 62 of 1993. For an
English translation, see EHS, Vol. II., JAA, No. 2201.
5
Law No. 25 of 1948 as amended by No. 102 of 1997. Hereinafter also cited
as SEL or Shòtori-hò in accordance with the usual abbreviation in Japanese texts.
For an English translation, see Capital Markets Research Institute, Securities and
Exchange Law (1993, plus supplement 1995). The translation covers the Shòtori-hò
as amended to 1994.
6
A seminal work discussing these topics on the basis of the development of civil
law in Japan can be found in G. Rahn, Rechtsdenken und Rechtsauffassung in
Japan [Legal Thinking and Legal Mentality in Japan] (1990). From the U.S. per-
spective, see D.F. Henderson, Security Markets in the United States and Japan.
Distinctive Aspects Molded by Cultural, Social, Economic, and Political Differences,
14 Hastings Int. Comp. L. Rev. 263–301 (1991).
7
For a discussion of an appropriate classification of the Japanese legal system,
see H. Baum, Rechtsdenken, Rechtssystem und Rechtsverwirklichung in Japan—
Rechtsvergleichung mit Japan [Legal Thinking, Legal System, and Realization of
Law in Japan—Comparison of Law with Japan], 59 RabelsZ 258–292 (1995).
332 commercial and corporate law
cal and economic challenges, and only to a lesser degree the result
of a gradual adaptation and transformation. For initial orientation,
it may be helpful to take a short look at the different political and
economic periods characterizing Japan’s development over the last
130 years.
2. Historical Overview
As in other spheres of social life in Japan, two major political events

have shaped the unfolding and later the transformation of a mod-
ern legal system of trade and economic regulations. In the three
decades following the so-called Meiji Restoration of 1868, the foun-
dations of that system were laid in a drastic change from the legal
practices of the preceding Tokugawa era (1600–1867). Of course, this
reform was not an isolated event but part of a giant transformation
of the Japanese economy and large parts of the society in general after
Western nations forced a secluded Japan to open to foreign trade. The
bulk of that transformation had already been achieved by the mid-
1890s. Thereafter Japan started to rapidly establish itself as a great
regional power and to consolidate that position by assembling a colo-
nial empire. The successful Chinese-Japanese War of 1894–95 and
the occupation of Taiwan, the Russian-Japanese War of 1904–05,
the annexation of Korea in 1910, and the occupation of Manchuria
in 1931–32 were landmarks that ended in the Pacific War and ulti-
mately Japan’s total defeat in 1945. That defeat was the starting
point for a second radical political change, the so-called “democra-
tization” of Japan and the Japanese economy. During the Allied
occupation of Japan (1945–1951), the U.S. insisted on the intro-
duction of various political, social, and legal reforms designed accord-
ing to American models. The Peace Treaty of San Francisco in 1951
ended that second period of transformation under foreign influence.
Japan became a member of the General Agreement on Trade and
Tariffs (GATT) as well as the International Monetary Fund (IMF),
and finally it joined the Organization for Economic Cooperation and
Development (OECD) in 1964.8
8
This is, however, only a very basic political categorization. For a more detailed
overview, see, e.g., the various excellent contributions in P. Duus (ed.), The Cambridge
History of Japan, Vol. 6, The Twentieth Century (1988). Of further interest may
be K. Inoue, Nihon no rekishi [History of Japan] (1963 et seq.), in German: Geschichte
Japans (M. Hubricht, trans. 1993), which favors a kind of Marxist view on Japanese
commercial and corporate law in japan 333
Economists apply somewhat different frameworks to distinguish the

various distinctive economic phases between 1868 and the 1990s.9
The divisions vary depending on the perspective of the individual
author, but from an economic perspective it seems fairly safe to
differentiate as follows:
• 1868–1884: These years can be described as a period of pioneer-
ing and transition when the foundations of modern Japan
were laid.
• 1885–1919: The start of modern economic growth can be dated
to around the mid-1880s, and the economy gained further
momentum until about the end of World War I.
• 1920 –1931: The high-growth period was followed by a severe
depression.
• 1932–1945: An inflation-induced recovery in connection with the
preparation for the coming war again brought economic
growth until the breakdown of the economy at the end of
World War II.
• 1945–1951: Under the Allied occupation, a thorough restructuring
of Japan’s economic system began as part of the democra-
tization process. The outbreak of the Korean War was the
starting point for the following long-lasting economic boom.
• 1952–1979: These years saw a period of high growth and Japan’s
gradual return to world markets—the so-called “Japanese
miracle”. A major interruption came with the first oil crisis
in 1973, but growth shortly thereafter resumed, albeit at a
more moderate pace.
• 1980–present: Japan became a major global player and the inter-
nationalization of its economy intensified. Another period of
high growth crowned with a speculative boom, the “baberu
keizai ”, gave way to a severe structural recession starting in
the early 1990s.
history. A classical Japanese treatise would be N. Asanao et al. (eds.), Iwanami kòza:
Nihon tsùshi [Iwanami Series: The Complete History of Japan] Vol. 1–21 (1993–1995).
9
There are many publications in Western languages dealing with the historical
development of the Japanese economy. A very good extensive overview can be found
with J. Hirschmeier & T. Yui, The Development of Japanese Business (1975); E.S.
Crawcour, Industrialization and Technological Change, 1885–1920, T. Nakamura,
Depression, Recovery and War, 1920–1945, and Y. Kòsai, The Postwar Japanese
Economy, 1945–1973, all in: The Cambridge History of Japan, Vol. 6, at 385–450,
451–493, 494–537 respectively (supra note 8); shorter: T. Ito, The Japanese Economy,
at 7–39 (1992).
When combining the political, economic, and legal perspectives, it

seems appropriate for our purposes to distinguish between four different
periods:
1. 1868–1899: With respect to commercial and corporate law, the
late 1880s and the 1890s seem to be the most interesting
years, culminating in the coming into effect of the Shohò in
1899. These years will be treated extensively infra in Sec. 4.2.
2. 1900–1945: In comparison to the legislative furor of the two pre-
ceding decades, the first decades of the twentieth century,
while full of political turmoil (as mentioned above), appear
to be rather calm in our areas of interest. However, this
period did see the rise of the modern corporation in Japan
and two comprehensive reforms of the corporation law in the
Shòhò in 1911 and 1938. In the same year, the yùgen kaisha,
the limited liability company, was introduced (infra sec. 4.3).
3. 1946–1980: Intense legislative activities commenced again after
1945. Under the Allied occupation, various legal reforms took
place as part of the democratization process during the late
1940s. The dissolution of the prewar zaibatsu and the big
shake-up of the financial markets went hand in hand with
the creation of a new anti-monopoly law and securities leg-
islation, among others. The early fifties marked the begin-
ning of the high-growth period, and the “Japanese miracle”
began to take shape. Various attempts were made in its
course to accommodate corporate law to the changing eco-
nomic reality. The capital markets took shape based on the
new securities regime (infra sec. 4.4).
4. 1980–present: Arguably, the postwar period ended some time around
the year 1980 with a major reform of the foreign exchange
and trade regulation. Japan intensified its role as a major
global player and the Japanese markets began to open up,
albeit slowly. Various internationally oriented legal reforms
started, especially in the financial sector. The boom of the
1980s as well as the bust of the 1990s each added to this
regulatory dynamic (infra sec. 4.5).
Given the overall concept of this volume and the space limitations,
these four different periods have not been granted equal treatment
in this chapter. The emphasis is clearly laid on the first period: the
major changes initiated during the Meiji Restoration, which are the
the early years: 1868‒1899 335
most important and, in Western languages, the least-documented

developments. The interwar period experienced fewer dramatic legal
changes, and the postwar legal and economic developments are quite
well documented in Western sources. They are accordingly treated
less extensively here.
The 1980s and 1990s are not yet history, and they are only briefly
touched upon, as an afterthought. In 1989 Japan had reached its
economic pinnacle. Thereafter, the overheated economy collapsed
and a prolonged structural recession started which was accompanied
by gigantic losses in the financial industry, record numbers of bank-
ruptcies, and rising unemployment. The “institutional fatigue” shown
by the recession of the 1990s throws light on severe structural deficits
of the political, economic, and not least the legal institutions, and
raises some questions about the viability of the “Japanese model” in
a changed global environment.
4.2 The Early Years: 1868–1899
1. Political and Economic Background
The historical events that led to the Meiji Restoration in 1868, a

turning point in Japanese history that induced a modernization process
with far-reaching consequences for Japan’s social and political struc-
tures, are described in great detail elsewhere, as are the ensuing
political activities and struggles of the Meiji government during the
years of transformation. They therefore do not have to be discussed
here again.10 However, some basic features of the political necessi-
ties and economic conditions leading to the creation of modern com-
mercial, corporation, and financial law in Japan in the 1880s and
1890s are indispensable for understanding the legislative process.
10
A comprehensive picture can be found with the various contributions in: M.B.
Jansen (ed.), The Cambridge History of Japan, Vol. 5, The Nineteenth Century
(1989). For an institutional choice perspective, see J.M. Ramseyer & F.M. Rosenbluth,
The Politics of Oligarchy—Institutional Choice in Imperial Japan (1995).
a) Political Necessities
The introduction of a modern trade and economic law regime mod-
eled on Western conceptions had two primary causes. As is well
known, the Tokugawa shògunate was forced in the mid-1850s to sign
so-called “unequal treaties” with various Western nations in the course
of the forced opening up of the country to foreign trade.11 These
treaties resulted in a severe loss of sovereignty for Japan. Foreigners
were free to settle in designated areas and to do business there as
they liked. Foreign residents were granted legal extraterritoriality; they
were not subject to Japanese jurisdiction either in criminal or in civil
and commercial matters. Instead, a system of consular jurisdiction
was introduced. As a court of first instance, the foreign consuls acted
with predictably unjust results in regard to Japanese plaintiffs. Even
worse, to enter an appeal, the parties had to turn to the courts in
the respective country of the involved foreigner, thus de facto pro-
hibiting an aggrieved Japanese party from making an appeal.
Furthermore, Japan had renounced its tariff autonomy in those
treaties. The result was only marginal tariffs—if any—on foreign
goods from the countries involved. This deprived Japan of much-
needed revenue, which further exacerbated the chronic shortage of
capital in Japan during the first years of the modernization. Another
outcome of the low tariffs was a surge in imports, which in turn
led to an unwanted outflow of scarce capital. To end this loss of
sovereignty, its negative economic implications, and the extraterrito-
rial privileges of the foreigners, the Meiji government began trying
to renegotiate the treaties in 1873, which had become an increas-
ingly impeding Tokugawa legacy. But the Western nations involved
had reservations about such a reversion. They claimed, among other
things, that Japan’s “underdeveloped” legal system first had to be
modernized. Among others, special emphasis was laid on the com-
pilation and promulgation of a commercial law comparable to the
relevant legislation in Western countries. The negotiations dragged
on for years. Even a multilateral conference organized as late as
1886 by the Japanese government in Tokyo had no success. It took
another decade of arduous bilateral negotiations for Japan to resolve
11
For a good description of that historical period, see W.G. Beasley, The Foreign
Threat and the Opening of the Ports, in: The Cambridge History of Japan, Vol.
5, at 259 et seq. (supra note 10).
the treaties after a “Western” judicial system had been installed in

the late 1890s.12
The second reason for creating a modern—meaning a Western—
commercial and corporate law system was the conviction of the Meiji
government that this institutional framework was a prerequisite for
the evolution of modern corporations in Japan. These in turn were
regarded as indispensable 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 assur-
ing Japan’s safety and independence. Early attempts to establish stock
corporations without an appropriate legal basis had not been able
to raise sufficient funds on a large-scale basis, had damaged their
founders because of unclear limitations to liability, and, increasingly,
those companies were being used as vehicles to defraud investors.
These questions will be discussed in greater detail later.13
b) Economic Conditions in General

What were the economic conditions in the first two decades of the Meiji
reforms? A sketch at the macro-economic level may be sufficient to
illustrate the background against which the compilation and pro-
mulgation of the new trade and economic laws have to be seen.14
In the first half of the nineteenth century, Japan was to a large
extent a typical pre-industrial Asian country. The vast majority of
the population lived in rural villages. Trade was concentrated in
Osaka, the financial center, and Edo, the seat of the government,
the shògunate. Under the bakuhan system, economic policy and decision
making were shared by the Tokugawa government, the bakufu, and
nearly 300 domains, the han. The cornerstones of that economic
regime were regulation and control at all levels of administration
rather than modern parameters such as money supply, employment,
etc. It was a controlled economy that did not rely on market forces
12
For further details of this process, see A. Iriye, Japan’s Drive to Great-Power
Status, in: The Cambridge History of Japan, Vol. 5, at 721 et seq. (supra note 10).
13
See infra at c).
14
For a detailed analysis, see, e.g., E.S. Crawcour, Economic Change in the
Nineteenth Century, in: The Cambridge History of Japan, Vol. 5, at 569–617 (supra
note 10); Hirschmeier & Yui, supra note 9, at 70–144. The following section draws
extensively on these sources. For a property rights analysis, see M.H. Dunn, The
Property Rights Paradigma and the Meiji Restoration in Japan, in: Jahrb. f. Nationalök.
u. Stat., Vol. 207/3, at 271–285 (1990).
and consequently was not successful in creating economic growth.15

After the Meiji Restoration, the role of the market slowly began to
gain ground. The economy became increasingly free and competi-
tive, but the philosophy of “laissez faire” and the belief in the “invis-
ible hand” were quite unacceptable in Meiji or even pre-World War
II Japan in general. Instead, “business activity was rationalized in
terms of service to the community and the state”.16 English liber-
tarian economic theory had been introduced in Japan soon after the
Restoration, but it was the German Historical School (List, Wagner,
Stein) which shaped most of the theoretical economic thought in Japan
in the 1880s and 1890s. Obviously it was regarded more appropriate
to justify state intervention and nationalistic policies in the form of
monopoly protection and subsidies to private enterprise, compared
to classical free trade theory.17 However, even if laissez-faire principles
were not followed, except in the initial phase, the state did not run
enterprises by itself; in other words, Japan was no centrally planned
economy based on the idea of collective property.18 But a strong ten-
dency to interfere into the market process and to try to control the
economy in the interests of the state as defined by the bureaucracy
rooted in Tokugawa times can still be seen today, although one would
not hesitate to describe present-day Japan as a market economy.19
A subject of continuing debate which cannot be pursued here is,
accordingly, to what extent the “visible hand” of the government
was either causal or detrimental in Japan’s economic success once
the initial transformation around the turn of the century (or the
15
Crawcour, supra note 14, at 576 et seq.
16
Crawcour, supra note 14, at 617.
17
Cf. T. Teratani, Japanese Business and Government in the Takeoff Stage, in:
Government and Business. Proceedings of the Fifth Fuji Conference, at 57 et seq.
(K. Nakagawa, ed. 1980); Crawcour, supra note 9, at 448.
18
A comprehensive evaluation of the role the state has played can be found with
E. Pauer, Die Rolle des Staates beim Aufstieg Japans in den Kreis der hochin-
dustrialisierten Länder [The Role of the State and Japan’s Rise into the Group of
Highly Industrialized Nations], in: Technik und Staat [ Technology and State]
(A. Herrmann & H.P. Sang, eds. 1992), at 161 et seq.; id., Die Rolle des Staates in
Industrialisierung und Modernisierung [The Role of the State in Industrialization
and Modernization], in: Der schlanke japanische Staat [Lean Government in Japan],
at 28 et seq. (G. Foljanty-Jost & A.M. Thränhardt, eds. 1995).
19
Similar to J. Murakami, Das japanische Unternehmen im Wandel der
Wirtschaftsverfassung [ The Japanese Enterprise and the Changing Economic
Condition], in: Staat und Unternehmen aus der Perspektive des Rechts [State and
Enterprise from a Legal Perspective], at 1 (H. Coing et al., eds. 1994).
reconstruction after World War II respectively) was finished.20 In any

case, it seems quite safe to say that Japan as a latecomer could take
advantage not only of advanced industrial technology but also of
advanced techniques of manipulation [of markets]”.21
Although there were earlier attempts to reform the system beset
with increasing economic difficulties, the real change came only with
the Meiji Restoration when the old order was removed and the cen-
tral controls on trade ended. But even that far-reaching change was
a gradual one. According to a government-ordered survey on occu-
pational distribution in 1874, 77 percent of those occupations surveyed
were listed as agricultural, less than 4 percent as industrial, some 8
percent as commercial, and 9 percent as miscellaneous and services.22
Not until 1935 did industrial production overtake agriculture.23
However, although Japan lacked sufficient capital for its ambitious
modernization process, its elite had a strong determination to pro-
ceed: Japan had the right “spirit”. The first Economic White Book
of 1884 (Kògyò iken)24 evaluates the various factors leading to the mod-
ernization as follows:
Which requirements should be considered as most important in the
present efforts of the government in building Japanese industries? It
can be neither capital nor laws and regulations because both are dead
things in themselves and totally ineffective. The spirit sets both capi-
tal and regulations in motion. . . . Hence, if we assign weights to these
three factors with respect to their effectiveness, the spirit should be
assigned five parts, laws and regulations four, and capital no more
than one part.25
As a lawyer, one appreciates the importance put on the legal frame-
work as an institutional basis for economic success.
20
For a positive evaluation, see, e.g., C. Johnson, Japan: Who Governs? The Rise
of the Developmental State (1995). For a more skeptical analysis, see, e.g., H. Baum,
Emulating Japan?, in: Japan: Economic Success and Legal System, at 1 et seq.
(H. Baum, ed. 1997).
21
22
Cited after Crawcour, supra note 14, at 613.
23
Cf. T. Nakamura, Wirtschaftliche Entwicklung des modernen Japan [Economic
Development in Modern Japan], at 40 (1985).
24
A very informative report on the development and the role the Economic
White Book has played during the modernization process can be found with
S. Crawcour, Kògyò iken: Maeda Masana and His View of Meiji Economic Develop-
ment, 23 J. Jap Stud. 69 et seq. (1997).
25
Cited after the translation of Hirschmeier & Yui, supra note 9, at 76–77.
There was a clearly dual structure in the Japanese economy between

the traditional and the modern industrial sector. The traditional
industries—such as the production of raw silk or other textiles—were
focused on consumption and on export to earn foreign currency and
to finance the further development of the modern industries—such
as steel—which were mainly needed to fulfill the demands of the
state.26 In the 1870s the government started to build up its infra-
structure of railways, telegraph lines, and a modern postal service
and laid the foundations of a modern banking system.27 Imported
techniques significantly increased the productivity of the traditional
sector on the one hand, and on the other hand allowed the gradual
build-up of modern industry strongly promoted by the government.
Consumption was restricted in the interest of industrial and military
investment.28
Although the government had planned to rely on private enter-
prises in its drive for modernization, it soon became clear that the
merchants were not willing to take sufficient risks to develop a modern
industry. Therefore the government had to start to act as an entre-
preneur. The Ministry of Industry founded in 1870 began to build
pilot enterprises staffed with foreign experts. The emphasis was laid
on heavy industries like mining, ship-building, railways, machinery,
and armaments.29 These eventually fulfilled their purpose as models
for the private sector to which most were sold, although on the
whole they incurred heavy losses for the government.30
In the late 1870s inflation had become a serious problem; the banks
kept issuing notes and the government printed new paper money in
ever-increasing amounts. Furthermore, there was a boom-inspired spec-
ulative rush into business in the hope of quick profits. In short, the econ-
omy was gripped by a speculative fever.31 When Masayoshi Matsukata
(1835–1924) became Minister of Finance in 1881, he started a strict
deflationary policy which indeed ended the inflation by around 1885.
However, one side-effect of that policy was a drastic rise in bank-
26
Cf. Nakamura, supra note 23, at 39.
27
See infra c) (2).
28
29
Cf. K. Kobayashi & M. Kobayashi, Government Promotion of Manufacturing
as a Precondition for Industralization, in: Government and Business. Proceedings of
the Fifth Fuji Conference, at 38 et seq. (K. Nakagawa, ed. 1980).
30
Cf. Hirschmeier & Yui, supra note 9, at 86 et seq.
31
Cf. Hirschmeier & Yui, supra note 9, at 89–90.
ruptcies, which in turn intensified the calls for the promulgation of

a company law, for, as will be described later in detail, companies
more or less conducted their business in a legal vacuum.
At the end of the 1880s, only two decades after the Meiji Restoration,
the cost of that revolution and the ensuing transformation had largely
been met and the foundations for the future development of a mod-
ern economic sector in industry, trade, and finance had been laid.
A phase of modern economic growth started that would last until
around 1920.32 However, as we look later at the introduction of a
modern concept of the corporation and a new commercial law it
should be kept in mind that, as mentioned above, the overwhelm-
ing majority of the gainfully employed Japanese in the 1880s and
1890s worked in agriculture and traditional commerce and indus-
tries which produced the lion’s share of the Japanese GNP.
Correspondingly, the growth of the traditional sector played a vital
part in economic development in general.33
c) Corporations in Meiji Japan

(1) Promotion of the Company System
A crucial role in the modernization of the economy in Meiji Japan
was played by new forms of enterprises adopted from Western models
as early as in the 1870s. Special emphasis must be given in this
regard to the joint stock company form of enterprise.34 Eiichi Shibusawa
(1840–1931), the powerful Meiji business leader, credited much of
Japan’s industrial success to the effective introduction of this form
of enterprise, which he himself tirelessly promoted.35 It is noteworthy
that—as is true for the Japanese capitalistic system in general—the
32
Cf. Crawcour, supra note 9, at 385.
33
Cf. Crawcour, supra note 9, at 405 et seq., 420.
34
An excellent description and analysis of the historical facts can be found with
E. Pauer, Bemerkungen zur Entwicklung der Aktiengesellschaften im Japan der
Meiji-Zeit [Comments on the Development of Stock Corporations in Meiji Japan]
in: Sozioökonomische Entwicklung und industrielle Organisation Japans [Socio-
Economic Development and Industrial Organisation in Japan], at 104 –133
(S. Linhart & E. Pauer, eds. 1979); the following passages draw extensively on this
source. A comprehensive Japanese source would be K. Kanno, Nikon kaisha kigyò
hasseishi no kenkyù [An Essay on the Historical Development of the Japanese Corporation]
(1931).
35
Cf. Hirschmeier & Yui, supra note 9, at 111. For the life and work of Shibusawa,
see his autobiography trans. and annoted by T. Craig, The Autobiography of
Shibusawa Eiichi: From Peasant to Entrepreneur (1994).
growth of the modern company in Japan did not evolve by itself

over time according to economic necessities. Instead, it was the result
of active government policies which introduced foreign eco-nomic
theories and an imported legal framework while forcefully abolishing
old structures and thereby creating room for new developments.36
In pre-Meiji times Japan lacked a company system in the modern
sense. Traditionally, business was conducted through family-based
enterprises, the “house” (ie) or family associations called “kumi ”.37
This was especially true for the large number of merchant houses.
Capital was raised within the ie rather than from a larger number
of partnerships or anonymous investors through shares. In addition
to the kumi, there were cooperatives (kumiai ) as well as guilds (nakama).38
With a significant break from its past of family-based merchant
houses and the guild system, the Meiji government strongly promoted
the introduction of a company system.39 In the course of its funda-
mental policy of “fostering commerce and strengthening industry”,
the government anxiously tried to popularize the establishment of
enterprises.40 Sometimes it even pressured reluctant merchants to par-
ticipate in joint ventures in the form of joint enterprises.41 With good
reason it regarded those as the most appropriate form of modern
business. It was generally thought that new forms of business required
new forms of companies. The joint enterprise had several advan-
tages over the traditional means of doing business. It enabled entre-
preneurs to channel large amounts of investable capital from scattered
sources into a collective undertaking, thereby creating a sound financial
basis for the new, capital-intensive industrial ventures. Furthermore,
it facilitated the rise of a new class of employed, able managers inde-
pendent of capital who could compete with foreign firms. Although
36
Cf. Pauer, supra note 34, at 112.
37
A very informative description about the development over the last 300 years
of a traditional Japanese company, the leading producer of soy sauce, can be found
in M. Fruin, Kikkoman. Company, Clan, and Community (1983).
38
39
The changes which the business of the Mitsui family underwent during and
after the Meiji reforms are described by S. Yonekura, The Emergence of the
Prototype of Enterprise Group Capitalism—The Case of Mitsui, 20 Hitotsubashi J.
Com. & Man. 63–104 (1985).
40
Cf. M. Fukushima, Meiji nijuroku nen no kyù-shòhò-chù kaisha-hò no sekò—sono keika
to igi, 51 Waseda Hògaku 5 (1977), reprinted as: The Significance of the Company
Law Chapters of the Old Commercial Code in 1893 (W. Horton, trans.), 24 Law
in Japan 171–191 (1991). The quotations refer to the English translation. The cita-
tion is at p. 172.
41
Cf. the incident reported by Murakami, supra note 19, at 2.
this does not mean that there was a smooth transition to a general
application of modern management methods in the new enterprises,
at least the institutional framework was set. A contemporary Japanese
observer, the aforementioned Shibusawa, emphasized an additional
aspect: in his view, this form of enterprise was particularly well suited
to the Japanese, whom he regarded as especially good at coopera-
tion.42
To foster its promotion of the company system, in 1871 the Ministry
of Finance published two books which became quite influential in
the following years. One, written by Shibusawa, was entitled “Rikkai
ryakusoku” [Outline on the Formation of Companies]; the other was
G. Fukuchi’s “Kaisha-ben” [About Companies], which was largely a
translation of American sources.43
The abolition of the feudal system affected not only the samurai
class, but also the merchants of the Tokugawa period who experienced
the collapse of the commercial system in which they were integrated.
The abolition of the guild system, the opening of the ports, and the
introduction of freedom of commerce made room for a new brand
of speculative traders and ended the traditional patterns of trade.
The government ordered a forced reduction of debts which resulted
in heavy losses for the merchants. In the first years of the reforms,
several hundred merchant houses went bankrupt.44
Under the guidance of Shigenobu Òkuma (1838–1922), who led
the Ministry of Finance, a group of dynamic, America-oriented men
began the establishment of a unified modern financial system in
Japan. The introduction in 1871 of a new national currency, the
yen, ended the previous system of money changing by merchant
houses who had functioned as banks (ryògaeya). In the same year the
mint started its operations in Osaka. To secure a source of stable
tax income, the government introduced a land tax system in 1873
which included monetization:45 taxes were no longer to be paid in
rice but in currency. To fulfill their tax obligations, farmers had to
collect large amounts of money, which in turn created an opportu-
nity for the establishment of a banking system.46
42
Cf. Hirschmeier & Yui, supra note 9, at 111.
43
Cf. N. Tamaki, Japanese Banking: A History, 1859–1959, at 33 (1995); Pauer,
supra note 34, at 106–107, and Fukushima, supra note 40, at 172.
44
45
46
Cf. Kobayashi & Kobayashi, supra note 29, at 45.
(2) Introduction of the Stock Corporation—The First Banks

To help the merchants whose expertise the government needed to
handle trade with the West and to foster foreign trade, eight cities
were designated in which joint stock commerce companies were
established. Although foreign trade had a high priority for the gov-
ernment, the breakthrough for the joint stock company came not with
the trading companies but, rather unusually, with the banks. In its
efforts to create a modern banking system, the Meiji government pro-
moted the establishment of “exchange companies” (kawase kaisha) in
the form of joint stock enterprises to act as banks.47 These compa-
nies cannot be described as stock corporations in the modern sense,
but they did have some similarities. They were in part capitalized
with government money. Their participants or “shareholders” were
entitled to a fixed dividend, but at the same time they also participated
in profits. Interest on capital was guaranteed by the government.
Certificates were issued but could only be transferred with the com-
pany’s consent. The president was not elected but was the holder
of most of the certificates after being appointed by the Ministry of
Finance. The system of supervision was only rudimentary. In spite
of their structure as joint stock enterprises, the participants bore an
unlimited liability. In summary, these kawase kaisha have been accu-
rately described as some kind of “incomplete stock corporations”.48
Their business had difficulties in taking off, not least because of the
fact that the individual merchant houses would have preferred to
operate independently. In the end, the first banking experiment of
the Meiji government failed.49
Therefore, the government under Hirobumi Itò (1841–1909) intro-
duced a new system of national banks organized according to the
U.S. model.50 The National Banking Decree of 1872 provided for
the legal framework. But again the undertaking was not successful.
Only four banks could be established, with rather reluctant merchant
houses as shareholders and only after considerable pressure by the
government. The failure in 1874 of the merchant house of Ono,
which was one of the founders of the First National Bank of Tokyo
(Tokyo Daiichi Kokuritsu Ginkò ), interrupted the promotion of the national
47
Cf. Tamaki, supra note 43, at 25 et seq.; Kanno, supra note 34, at 110 et seq.
48
Cf. Kanno, supra note 34, at 249; Pauer, supra note 34, at 111.
49
Tamaki, supra note 43, at 27.
50
Cf. Tamaki, supra note 43, at 28–39.
bank system, and inflation as well as a depreciation of notes issued

by the national banks further aggravated the problems.51 To prevent
a virtual collapse of the national banking system, the National Banking
Decree was substantially amended in 1876.52 Under the revised decree,
banks had to be organized as joint stock companies. This approach
finally proved to be successful.
The decree stipulated that a minimum of five shareholders were
necessary for the foundation of such a corporation (Art. 1). Shares
had a face value of 100 yen (Art. 5). They could be acquired by
everyone and could be freely transferred with the permission of the
directors (Art. 5). Each share provided for the same voting right and
the directors shareholders were elected by the shareholders assem-
bly (Art. 2). With these national banks, there was a limited liability
established in the National Banking Decree (Art. 5, 15). Therefore,
most Japanese historians regard the national banks as the first joint
stock corporations in Japan.53 They were certainly the first modern
enterprises in Japan and had a significant impact on the future growth
of this form of enterprise in other sectors of the economy.
By 1880 there were more than 150 national banks in operation.
Somewhat surprisingly, most of them were not founded by merchants
but by samurai, whose feudal stipends after 1876 were compulsorily
converted into government bonds, which they then invested in banks
as founding capital. Thus the samurai became the driving force for the
establishment of new banks. Banks were now allowed to issue their
own inconvertible bank notes, and they began to be profitable. Besides
the national banks, a growing number of private banks were founded
during the 1880s, some of which were big city banks like the Mitsui
Bank (the first private bank), but most of which were rather small
local banks.54 Around the turn of the century some 1,800 private
51
Tamaki, supra note 43, at 33.
52
Kokuritsu ginkò jòrei, reprinted in: Òkura-Shò [Ministry of Finance] (ed.), Meiji
zaiseishi [The History of Finance in the Meiji Period] Vol. 13, at 31–57 (1905).
53
Cf. N. Takamura, Kaisha no tanjò [The Birth of the Corporation], at 41 (1996);
T. Ueda, Nihon ni okeru kabushiki kaisha no kigen [The Origins of Joint Stock Corporations
in Japan], 2 Shògaku Kenkyù (Hitotsubashi Daigaku) No. 3, at 838 (1922); T. Yui,
Wagakuni kaisha kigyò no senkuteki keitai [Early Types of Japanese Enterprises], 10 Keiei
Ronshù (Meiji Daigaku) No. 4, at 142 (1963); A. Moriizumi, Nihon shihon-shugi sòseiki
ni okeru kaisha seido [Corporations at the Beginning of Japanese Capitalism], 25
Hògaku No. 2, at 82 (1961).
54
Cf. Tamaki, supra note 43, at 40–45.
banks were in operation, mostly financed by local landowners and

businessmen. They served as a crucial link to channel local savings
into national projects.55
The difficulties experienced by the kawase kaisha were shared by
other enterprises in the form of joint stock companies outside the
banking industry, referred to as gappon kaisha or shimei kaisha. These
too were legally not—or at least not sufficiently—defined, and accord-
ingly the scope of liability of the shareholders in case of business
failure was by no means clear.56 This actually did not change until
1893, when the “Old Commercial Code” went into force.57 Only
then did the stock corporation in a modern sense (kabushiki kaisha)
become legally firmly established.
(3) Success of the Stock Corporation

However, the uncertainties about liability in case of business failure
obviously did not mean that the government policies in promoting
the company system had not been successful, although it caused con-
siderable confusion when the deflationary Matsukata reforms resulted
in numerous corporate failures. The number of companies decreased
between 1882 and 1885 from 3,336 to 1,279, but as their total cap-
ital did not decrease it seems that many insolvent companies were
absorbed by healthier ones.58 The development can be seen in the
following table, which does not differentiate between the different
types of companies according to the situation before 1893:
Table 1
Increase of Companies Between 1881 and 1899
Year Number of Companies Year Number of Companies
1881 1,803 1891 4,306

1882 3,336 1892 4,507
1883 1,772 1893 4,133
1884 1,298 1894 2,104
1885 1,279 1895 2,458
55
Cf. Hirschmeier & Yui, supra note 9, at 89; Crawcour, supra note 9, at 391
et seq.
56
Cf. Fukushima, supra note 40, at 184.
57
See infra 2. b).
58
Table 1 (cont.)
Year Number of Companies Year Number of Companies

1886 1,655 1896 4,595
1887 2,038 1897 6,113
1888 2,593 1898 7,044
1889 4,067 1899 7,631
1890 4,296 1900 8,598
Source: E. Pauer, supra note 34, at 125 with further references.
Among other things, the table shows that when the corporation law
in the Old Commercial Code finally went into force in 1893, a large
number of companies had already been in full operation for years.
But it was not until the promulgation of this code that there was a
clear legal distinction between three different types of companies.
This raised the question of how to treat the various types of existing
companies under the new regime.
The Commercial Code Enforcement Ordinance (Art. 5)59 stipulated
that every company already incorporated at that time had to register
within six months of the enforcement of the Old Commercial Code,
which went partly into effect on July 1, 1893 (including the sections
on companies).60 The registration had to be done according to the
appropriate type of company provided for in the code.61 Obviously,
many private undertakings that had been counted before 1893 as
commercial companies did not register or qualify for registration as
companies in the sense of the code and with the advantage of a lim-
ited liability, hence the reduction in the statistical numbers between
1893 and 1894 in the above table.
Artisans, smaller merchants, etc., continued in the traditional way
as private or family-based undertakings. A survey in 1884 of non-
government factories showed that of 1,981 establishments, more than
half were located in rural villages and over a third had no more
than five workers.62 The bigger merchant houses such as Mitsui, for
example, continued to do business on a partnership basis with members
59
Shòhò jisshi jòrei, Ordinance No. 59 of 1890.
60
See infra 2. a).
61
These obviously rather complicated and somewhat unclear proceedings are
described in greater detail by Fukushima, supra note 40, at 189–192.
62
Cf. Crawcour, supra note 14, at 613.
of the widespread family acting as partners. They increasingly used

the new legal forms provided for in the code of limited partnership
companies ( gòshi kaisha)63 and, to a lesser degree, the general part-
nership companies ( gòmei kaisha).64
Modern industrial undertakings were to a growing extent founded
in the form of stock corporations.65 During the Matsukata reform
deflation stock corporations did comparatively well, and especially
after the end of the recession an increasing number of successful
stock corporations besides banks were founded in the fields of cot-
ton spinning and railways. These companies already had several hun-
dred shareholders on average.66 The stock corporation soon developed
into the most important form of enterprise in Meiji Japan, as can be
seen when one looks at the paid-in capital of the three different
types of companies. After the Sino-Japanese War (1894–95) their
number and their capitalization soared: in the years between 1895
and 1910, the capital of the stock corporations on average accounted
for nearly 90 percent of paid in capital.67
An interesting question is why the stock corporation rather than
other forms of companies became the vanguard of modernization.
Besides the general advantages of that form of enterprise cited at
the beginning of this chapter, some specific historical aspects have
obviously played a role in Japan.68 The fact that the samurai became
active in banking because they could invest their pensions there has
already been mentioned. This was facilitated especially through
Shibusawa, who promoted the idea that, in contrast to the occupation
of merchant which was regarded as the lowest of the four social
classes in Tokugawa times,69 employment with a modern industrial
stock corporation was honorable, brought a great deal of responsibility,
63
This form corresponds to the German Kommanditgesellschaft; another English
translation is “incorporated limited partnership”.
64
This form corresponds to the German Offene Handelsgesellschaft, another English
translation is “incorporated partnership”. The form of a private company limited,
the yùgen kaisha (which corresponds to the German Gesellschaft mit beschränkter Haftung),
was first introduced in 1938; see infra III.2.b).
65
For an overview of the development of the different types of companies from
1893 onwards, see infra Table 3 in the Appendix.
66
67
Cf. Fukushima, supra note 40, at 190–191; Pauer, supra note 34, at 115, 126–127.
68
These arguments are dealt with extensively by Pauer, supra note 34, at 118–122,
128.
69
The others were samurai, artisans, and peasants.
and was serving the national needs in building a modern economy.

In general, the Meiji government had been deliberately careful to
apply traditional concepts and terms to the new form of enterprise
it wanted to popularize. For example, the term kabu, which was used
to translate the English expression “share”, had its origin in the tra-
ditional Tokugawa partnerships where it described the participation
in a guild, the kabu nakama.70
d) Stock Exchanges
Between 1875 and 1877 the government issued bonds on a large-
scale basis, and it needed to create a market for these bonds. Most
of the bonds were given to the samurai as compensation for their
stipends; these resources had to be mobilized.71 In 1878 the first
stock exchanges were opened in Tokyo and Osaka. The exchanges
were organized as joint stock companies and their number grew
rapidly. In 1898 some 46 exchanges were in operation.
As with the regulation of the banks and other corporations, the
development of the stock exchange was rather lively.72 Two years
before the formation of the first exchanges, rules ( jòrei ) for the trad-
ing in shares were promulgated that were shaped after the Rules of
the London Stock Exchange.73 In 1878 they were replaced by new
rules regulating the exchanges74 which stipulated that they had to be
organized as joint stock companies licensed under the Ministry of
Finance. The exchanges were run privately and were generating
profits. However, in 1887 a new ordinance was issued, according to
which exchanges were no longer allowed to be run as stock com-
panies but had to be organized as associations of their members.75
As a consequence, existing exchanges had to be liquidated and new
ones had to be founded. The result was significant confusion and
70
71
Cf. Tamaki, supra note 43, at 36.
72
Cf. K. Kanzaki, Shòken torihiki-hò [Securities Exchange Law], at 56 et seq. (1987);
C. Nakajima, The Experience of Japan in Adoption and Adaption, in: Emerging
Financial Markets and the Role of International Financial Organizations, at 393 et
seq. (Norton & Andenas, eds. 1996).
73
Kabushiki torihiki jòrei [Stock Transaction Ordinance], Imperial Ordinance No.
107 of 1884.
74
Kabushiki torihiki-jo jòrei [Stock Exchange Ordinance], Imperial Ordinance No.
8 of 1878.
75
Torihiki-jo jòrei, [Exchange Ordinance], Imperial Ordinance No. 11 of 1887.
considerable opposition to these changes. To cope with the situation,

a new Exchange Law was introduced in 1893 which superseded the
ordinance of 1887.76 The law was based on extensive comparative
preparatory work in Europe and the U.S. Its enactment reintroduced
the possibility of establishing an exchange as a joint stock corpora-
tion, but the form of a membership organization also remained viable.
2. Commercial and Corporate Law
The general political and economic development described above is

the background against which the following legislative undertakings
of the Meiji government must be seen.
a) The Codification Process

The legislative process of compiling a commercial law for Japan
started in the mid-1870s.77 In the beginning, the legislative efforts
were concentrated on compiling a company law, which was seen as
crucial for the further promotion of companies as a motor of future
growth.78 This task later broadened to the creation of a complete
general commercial code, for it was thought more appropriate to
regulate commercial and corporate law together. The first draft for
a Company Law (Kaisha jòrei )79 was completed in July 1875 by the
Ministry of Internal Affairs (Naimu-shò ), whose aim was to promote
the development of industry to create “a wealthy nation and a strong
76
Torihiki-jo-hò, [Exchange Law], Law No. 5 of 1893.
77
For a detailed description of the legislative process, see Fukushima, supra note
40. This section draws on that excellent study to a considerable extent. One minor
correction should be made: throughout the English text, the name of the German
legal scholar Hermann Roesler who played an important role in drafting the code (see
infra) is misspelled as “Rössler”. For a comprehensive report of the legislative his-
tory, see K. Shida, Nihon shòhòten no hensan to sono kaisei [ The Compilation and
Revisions of the Commercial Code of Japan] (1933); K. Saegusa, Meiji shòhò no seir-
itsu to hensen [Development of the Meiji Comercial Code) (1992).
78
See infra at sec. c) for an analysis of the development of corporate law and the
rise of the corporations; a comprehensive description of the development of cor-
porate reporting can be found with J.L. McKinnon, The Historical Development
and Operational Form of Corporate Reporting Regulation in Japan (1986).
79
For a reprint of the draft and an analysis, see K. Mukai, Meiji hachinen naimu-
shò kaisha jòrei sòan [The 1875 Draft of the Company Law by the Ministry of Internal
Affairs], 44 Hògaku Kenkyù (Keiò Daigaku) No. 9, at 80 (1971).
military” ( fukoku kyòhei ). Even at that time Japan had a wide vari-
ety of choices available from which to assemble its new laws.80 The
Company Law draft was based on the translation of British laws.81
However, the Cabinet Legislation Bureau (Dajòkan Hòsei-kyoku) rejected
the draft on the grounds that it was based exclusively on the British
model without taking other legal regimes into consideration.82
To achieve the creation of a modern commercial law as quickly
as possible, the Japanese government turned in 1881 to the German
lawyer Carl Friedrich Hermann Roesler (1834–1894) and asked him
to prepare a draft of a commercial code for Japan. Roesler, who
had previously taught public law and national economics at the
University of Rostock, first came to Japan in 1878 as a legal adviser
to the Japanese Foreign Ministry.83 He had already participated as
a counselor of the Japanese government in the deliberation of the
Constitution of Imperial Japan, the so-called Meiji Constitution, which
was promulgated in 1889.84 In January 1884 Roesler presented a
comprehensive draft consisting of 1,133 articles.85 The draft included
general commercial law as well as corporate law and provisions on
insolvency, commercial jurisdiction, and arbitration.86
Before the presentation of the draft, by 1882 the Matsukata
reform mentioned above had thrown the Japanese economy into a
recession which resulted in a number of corporate failures. Because
80
J.V. Feinerman, Meiji Reception of Western Law, in: Wege zum japanischen
Recht, Festschrift für Zentaro Kitagawa zum 60. Geburtstag, at 96 (Leser & Isomura,
eds. 1992).
81
K. Mukai, Kaisha sòan no hensan shiki [The Initial State of Drafting a Company
Law], 22 Hòseishi Kenkyù 16 (1972).
82
T. Toshitani & R. Mizubayashi, Kindai nihon ni okeru kaisha-hò no keisei [Formation
of Company Law in Modern Japan], in: Shihonshugi-hò no keisei to tenkai [Development
of Capitalistic Law], at 85 (R. Takayanagi & I. Fujita, eds. 1973).
83
For the personal background of Hermann Roesler, see P.-C. Schenk, Der deutsche
Anteil an der Gestaltung des modernen japanischen Rechts- und Verwaltungswesens
[The German Role in Shaping Modern Japanese Law and Administration], at 102
et seq. (1997); S. Itò, Roesler shòhò sòan no rippòshiteki igi tsuite [On the Historical
Meaning of the Commercial Law Draft by Roesler], in: Hòsei ronshù [Essays on
Legal History], at 191 et seq. (Shiga & Hiramatsu, eds. 1976).
84
A good overview can be found with J. Banno, The Establishment of the
Japanese Constitutional System; J.A.A. Stockwin trans. (1992).
85
Shòhò sòan; for the German original text, see H. Roesler, Entwurf eines
Handelsgesetzbuches für Japan mit Kommentar (Tokyo 1884, Reprint 1996); for
the Japanese translation, see Shihò-shò [Ministry of Justice, transl.], Shòhò sòan [Draft
of the Commercial Code] 2 Vol. (1884).
86
For further details, see infra b).
of the lack of regulations there was no sufficient limitation of liability

of shareholders in case of insolvency. Against all their expectations, the
shareholders were held responsible for the losses, with dire consequences
for their private assets. This in turn discredited the whole company
system promoted by the government in the course of its modern-
ization program since the Restoration. The government quickly real-
ized the necessity of introducing a corporation law as soon as possible.
In 1886 it came up with a draft of the “Commercial Company Law”
(Shòsha-hò) and submitted it to the Senate (Genrò-in).87
However, although the Senate passed the bill in early 1886, it was
never promulgated. On the contrary, the Japanese Foreign Ministry
and the government stopped the promulgation process immediately
afterwards. The reason for this seems to be that in May of the same
year the first multinational conference on renegotiating the unequal
treaties was held in Tokyo, where Germany and Great Britain pre-
sented a joint proposal for a possible renegotiation.88 As a prere-
quisite, the proposal demanded, among other things, the introduction
of a comprehensive commercial code in Japan. Therefore, the Foreign
Ministry wanted to concentrate all efforts on the compilation of a
general code rather than to pursue the promulgation of a separate
corporate law code. In August 1886 the Ministry set up the “Legislation
Investigation Committee” (Hòritsu Torishirabe I’inkai ), composed of
Japanese politicians and bureaucrats and various foreign advisers,
and requested it to urgently proceed with the compilation of an ade-
quate draft.89 But that committee never finished its work. Roesler
joined the committee in 1887.
Because of much opposition to his policy on the renegotiating of
the treaties, Foreign Minister K. Inoue (1835–1916) was forced to
resign in September of 1887. He was reproached for being too lenient
towards foreign demands. Shortly afterwards the responsibility for
the compilation process was transferred to the Ministry of Justice, the
old committee was dissolved, and a new one under the guidance of
Justice Minister A. Yamada (1844–1892) was established. For polit-
ical reasons, Yamada did not allow Roesler to take part as an official
member in the discussions of the committee; he was only active as
87
See Toshitani & Mizubayashi, supra note 82, at 88; Fukushima, supra note 40,
at 176 et seq.; Takamura, supra note 53, at 68.
88
Saegusa, supra note 77, at 70; Fukushima, supra note 40, at 178–179.
89
Saegusa, supra note 77, at 73.
a draftmaker.90 One year later, in November of 1888, a partial draft

of the Commercial Code was completed. Together with the drafts
of the Civil Code, the Civil Procedure Code, and the Court
Organization Law, it was submitted to the Senate at the end of that
year.91 The complete draft of the Commercial Code was finished in
1889. It was based on the work of Roesler but had been significantly
altered, which led to an intense dispute between Roesler and the
committee.
The Senate approved the bill, which was supposed to enter into
force on January 1, 1891. However, doubts had arisen in the meantime
as to whether a timespan of less than a year between the promulgation
and the coming into effect of such an important law was suitable
for the business community. In December of 1889 the Tokyo Chamber
of Commerce (Tòkyò Shòkò-kai ) requested a postponement through
N. Nakajima, the president of the House of Representatives (Shùgiin),
and H. Itò, the president of the House of Councilors (Kizokuin). The
postponement was approved by both Houses of the Imperial Diet
(Tèkoku Gikai ), which had been founded in 1889 according to the
new constitution of that year. It was argued that it would be very
difficult for the merchants addressed in the law to understand and
adapt to the new regulations.92 Furthermore, it was regarded as
impractical for the Commercial Code to enter into force before the
new Civil Code.93 The fact that the code did not take the traditional
Japanese commercial practices into account was seen as a severe dis-
advantage, as was the fact that not even the customary technical
terms had been used in drafting the code.94 Another complaint was
that the provisions were often contradictory and that there was no
coherent terminology used. In general, the opinion gained upper
hand in the discussion that first there should be the trade practice,
with the regulation of that practice to follow as a second step. Another
90
Id. at 79; Itò, supra note 83, at 211.
91
Fukushima, supra note 40, at 180.
92
93
In 1890 an earlier version of the Civil Code influenced by French legal concepts
had been promulgated, but because of disputes between the different schools of legal
thought it was never enacted; see A. Eckey-Rieger, Der Kodifikationsstreit zum
japanischen Bürgerlichen Gesetzbuch [The Argument of the Different Schools about
the Japanese Civil Code] (1994); R. Igeta & E. Yamanaka & H. Ishikawa, Nihon
kindai hòshi [Legal History of Modern Japan], at 160 et seq. (1982); supra Chap. 3.1.
94
M. Fukushima, Nihon shihonshugi no hattatsu to shihò [The Development of Japanese
Capitalism and Private Law], at 118 (1989).
reason for the delay may have been the reluctance of the govern-
ment to pursue the enforcement of the bill because of disagreement
among various governmental departments about how to handle the
treaty revision negotiations.95
Both Houses of the first Imperial Diet passed the bill in 1891 and
set the first of January, 1893 as the date for the enforcement of the
Commercial Code. However, further complaints caused the third
Imperial Diet to decide in 1892 to postpone the coming into effect
of the Commercial Code for another three years to 1896, the year
the Civil Code was scheduled to go into force. The government
established a Code Enforcement Investigation Committee (Hòten Shikò
Tokubetsu I’inkai ), under the chair of the politician K. Saionji
(1849–1940), to take care of the criticisms of the draft and to decide
which date was best for the enactment of the draft. After some delib-
eration, the committee proposed that only the sections of the draft
relating to the Company Law (Book 1, Chap. 6), the Bills and Notes
Law (Book 1, Chap. 12), and the Bankruptcy Law (Book 3) needed
to be put into force as soon as possible. A corresponding bill was
presented to the fourth Imperial Diet some time later in 1892. The
Diet passed the bill after minor alterations in both Houses.96 After
some ten years of deliberation and intense discussion, the legislative
odyssey had ended—at least partly and for a limited time only—
and a rudimentary version of the Commercial Code, the so-called
Kyù-shòhò or “Old Commercial Code”, came into force on July 1,
1893. The reason for the enactment of at least the aforementioned
three parts of the original code was the same as that which had dri-
ven the discussion about the introduction of a company law. It had
become increasingly clear that without a proper legal basis with
respect to structure and supervision of the corporation, as well as a
clearly defined limitation of liability, the whole company system could
not work properly. An indispensable part of a functioning system
was orderly insolvency proceedings.
Five years later, on July 1, 1898, the missing parts went into force—
quite surprisingly and rather by historical accident, as the new Shòhò had
already been drafted. It was, accordingly, in force for just one year:
on June 15, 1899, the Kyù-shòhò was repealed and a new Commercial
95
Cf. Fukushima, supra note 40, at 181.
96
A detailed description of the difficult passage of the law can be found with
Fukushima, supra note 40, at 181–183; Saegusa, supra note 77, at 115–117.
Code, the Shòhò, promulgated on March 9, 1899, came into effect

on June 16. This will be described in greater detail in a moment.97
Only the Bankruptcy Law (Book 3) remained in force until 1922
when it was replaced by the Bankruptcy Act, the Hasan-hò.98
b) Characteristics of the Kyù-shòhò of 1893

As has been mentioned above, the Kyù-shòhò 99 was to a significant
extent based on the 1884 draft compiled by Roesler, although the
German scholar was no expert on commercial law in general or cor-
porate law in particular. In the introduction to his draft, he laid out
the guiding principles for his work.100 Roesler was convinced that,
if Japan wanted to catch up with the “civilized” nations and create
a legal foundation for a modern economy, Japan needed above all
a commercial law which combined the best and most modern solutions
that could be regarded as shared and generally accepted rules of trade
in those nations.101 His draft was therefore a piece of extensive com-
parative law with the express exclusion of traditional Japanese law
and commercial customs, which he regarded as unsuitable for this
purpose. Instead, Roesler tried to combine elements of the French
Code de commerce of 1870 and the German Allgemeines Deutsches
97
See infra at c).
98
Law No. 71 of 1922 as amended by Law No. 79 of 1991. For an English
translation, see EHS, Vol. II., LU, No. 2340.
99
Law No. 32 of 1890. Reprinted in: Gendai Hòsei Shiryò hensankai (ed.), Meiji
kyùhò shù. (1983); for an English translation, see Shihò-shò [Ministry of Justice] (ed.),
Commercial Code of Japan (1893).
100
See Roesler, supra note 85, at I et seq.
101
The originals states this as follows:
“Bei der Abfassung eines Handelsgesetzbuches für Japan treten vor allem zwei
Gesichtspunkte hervor; einmal, dem Handel und der Industrie Japans eine feste
und erschöpfende Rechtsgrundlage zu geben, und so dann, die commerzielle und
industrielle Tätigkeit der Japanischen Nation auf gleichen Fuss mit den übrigen
Handelsnationen der Welt zu bringen. Die Vereinigung dieser beiden Gesichtspunkte
ergibt die Aufgabe, ein Gesetzbuch herzustellen nach den besten und neuesten
Principien, welche als gemeinsame und allgemein anerkannte Handelsgrundsätze
der civilisierten Nationen angesehen werden müssen.” [“In creating a commercial
law code for Japan, there are primarily two aspects: first, to provide Japan’s com-
merce and industry with a firm and exhaustive legal foundation; and second, to
bring the Japanese nation’s commercial and industrial activities on even ground
with the other commercial nations of the world. The combination of these two
aspects results in the task of producing a code using the best and newest prin-
ciples that are respected as the common and generally accepted fundamentals of
trade among civilized nations.” ] (id. at I).
Handelsgesetzbuch of 1861 (ADHGB. Special emphasis was laid on the

newly compiled Egyptian Code de commerce and Code de commerce mar-
itime of 1874 as well. In form, the Kyù-shòhò followed the French
model; in substance, it was more often than not shaped on German
principles of commercial law as laid down in the ADHGB.102
The Kyù-shòhò was divided into three books. Book 1 dealt with
commercial law in general. In 12 chapters it contained (among oth-
ers) regulations on merchants, commercial transactions, commercial
partnerships, corporations and joint trade associations, forwarding
agencies, insurance, and regulations on bills and notes. Book 2 was
on maritime law and Book 3 regulated bankruptcy proceedings.
The section on corporate law introduced some far-reaching changes.
The most important of these was the introduction of limited liabil-
ity for shareholders, who until that time could have been held liable
with their private property in the case of an insolvency of their cor-
poration. This new freedom came with a price: the Kyù-shòhò stipu-
lated that entrepreneurs had to obtain governmental approval for
the subscription and a license for the incorporation of a stock cor-
poration (Art. 156, 159, and 166 of the Kyù-shòhò ). The reason for
this was distrust. If merchants could escape future business liabili-
ties, the government wanted at least to screen the entrepreneurs in
an effort to keep out obvious crooks and unscrupulous speculators,
thus enhancing trust in the new company system it was promoting
and which had suffered a severe loss of reputation during the reces-
sion following the Matsukata reform.
Interestingly, the principle of licensing was not proposed by Roesler.
On the contrary, he thought it outdated and preferred the more
flexible principle of mere registration of share companies without
prior governmental approval. This system had become increasingly
common among advanced nations by the 1870s and he had proposed
it in his draft of 1884.103 Obviously, the cumbersome licensing pro-
cedure had been introduced by the Japanese committee members
during the revision of the draft. There seems to have been a shared
opinion among Japanese legal scholars at that time who, though they
were quite aware that the system to be adopted was outdated, never-
theless thought it more appropriate for the early state of Japan’s eco-
102
Cf. Schenk, supra note 83, at 105.
103
Roesler, supra note 85, at 196–197.
nomic development.104 Roesler later changed his mind, and in his

comment on the license system in 1885 he also recommended it on
the grounds that it might enhance investor protection. He hoped
that this governmental protection would make it possible to promote
the joint stock corporation better.105 In practice, however, the license
system was not strictly enforced afterwards. Only 13 out of 310 com-
panies were denied a license.106
The Kyù-shòhò recognized three legal forms of enterprise: the kabushiki
kaisha (stock corporation), the gòmei kaisha (general partnership), and
the gòshi kaisha (limited partnership). In 1896 there were 2,585 stock
corporations, 1,667 limited partnerships, and 344 general partnerships
registered in Japan.107
The stock corporation as regulated in the Kyù-shòhò had three organs:
the general meeting (sòkai ), the directors (torishimari-yaku),108 and the
auditors (kansa-yaku). In contrast to the present status of regulation,
where the general meeting is only competent for matters which have
been assigned to it expressly by the law or the corporate charter,
the Old Commercial Code designated an unlimited competence for
the general meeting in corporate affairs (cf. Art. 202 Kyù-shòhò ). It
appointed the directors. A minimum of three directors was mandatory.
Every director had the individual power to represent the corporation
legally (Art. 143, 186 Kyù-shòhò ), whereas today only the especially
empowered directors may do so.109 The auditors had more extensive
rights and duties than today. They were responsible not only for
supervision of the directors with respect to the lawfulness of their
business activities—as today—but also to the question of whether
their activities were compatible with the interests of the shareholders
(Art. 192 Kyù-shòhò ). A serious limitation in their ability to control was
the fact that—in contrast to the present situation—there was noth-
ing to prohibit an auditor from simultaneously acting as a director.
104
Cf. Fukushima, supra note 40, at 186 et seq. with further references, and
Murakami, supra note 19, at 1, 4; Toshitani & Mizubayashi, supra note 82, at 115.
105
Toshitani & Mizubayashi, supra note 82, at 114.
106
R. Miwa, Shòhò seitei to tòkyò shòkò kaigisho [The Tokyo Chamber of Commerce
and the Formation of the Commercial Code], in: Shihonshugi no keisei to hatten [The
Formation of Capitalism and its Development], at 157 et seq. (H. Òtsuka, ed. 1968);
Takamura, supra note 53, at 175.
107
Takamura, supra note 53, at 186.
108
This organ was broadened in 1950 when the board of directors (torishimari yakkai )
was introduced as a controlling device.
109
Cf. Art. 261 of the present Shòhò.
At the beginning, a minimum of three auditors had to be appointed

by the general meeting (Art. 191 Kyù-shòhò ); for practical reasons,
this number was shortly afterwards reduced to two.110
The gòmei kaisha (general partnership) was a company whose members
could be held liable for the debts of the company (Art. 74 Kyù-shòhò ).
It was not necessary to obtain a license from the government for
establishing this kind of company. As a trade name, at least the fam-
ily name of one of its members had to be used (Art. 75 Kyù-shòhò ).111
This type of company had no legally required specific organs. In
principle, every partner of the company had equal legal rights and
duties with respect to running the company (Art. 88 Kyù-shòhò ).
The gòshi kaisha (limited partnership) had basically the same gen-
eral structure as the general partnership. Therefore, the provisions
of the Old Commercial Codes relating to the latter were applied
correspondingly to the limited partnership (Art. 137 Kyù-shòhò ). The
code stipulated only a few special rules for the limited partnership.
The main distinction from the general partnership was—as it still is
today—that its partners could choose the privilege of limited liabil-
ity if they wished to do so (Art. 136 Kyù-shòhò ).
c) Criticism and the Compilation of the Shòhò of 1899

Although the Kyù-shòhò, and particularly the enactment of its cor-
porate law chapter, was an overdue step in the right direction of
creating a legal infrastructure for the fast-growing economy in Meiji
Japan, criticism was widespread, especially in the business world.
The criticism that had been raised against the draft of the code,112
which was based among other things on the fact that the code did
not take the traditional Japanese commercial practices into account,
was revived because that criticism had not led to a revision of the
code but only to a postponement of its enactment as described above.
Furthermore, it soon became clear that the principle of licensing was
110
Cf. S. Otto, Handelsrechtliche Prüfung japanischer Aktiengesellschaften
[Financial Reporting of Japanese Stock Corporations under the Commercial Code],
at 11–13 (1993).
111
Gòmei kaisha is a translation of the French term société en nom collectif, which
refers to the French model of partnership regulated in the code de commerce of 1807.
The original meaning of the Japanese term gòmei is “correcting names”; cf. T. Suzuki
& A. Takeuchi, Kaisha-hò [Company Law], at 550 (3rd ed. 1994).
112
Cf. supra a).
too impractical and time consuming.113 It was increasingly regarded

as a serious hindrance to the future growth of the Meiji economy.
A special nuisance for the business community was the right of gov-
ernment officials under that system to conduct on-site inspections of
stock corporations.114 A further disadvantage of the company law
under the Kyù-shòhò was the fact that it did not provide for regula-
tions on mergers. As a result, one of the companies that intended
to merge had to dissolve itself. According to Fukushima, it was pri-
marily the Tokyo Chamber of Commerce with the assistance of
influential Chambers of Commerce of other towns that voiced con-
cerns about the defects of the Old Commercial Code and petitioned
the Ministries as well as the Diet for reform in the mid-1890s.115
The government responded to this criticism. A new committee,
called the Investigation Committee for the Codes (Hòten Chòsa-kai ),
was established in 1893 within the Cabinet under the guidance of
Prime Minister Hirobumi Itò.116 Its tasks were to draft a revised
commercial code as well as a revision of the civil code. The com-
mittee had 50 members of varying professions. The famous entre-
preneur Shibusawa was one of them; no foreign experts were invited
to take part as members. For the revision of the commercial code three
members of the committee were appointed: Kenjirò Ume, Keijirò
Okano, and Yoshi Tabe. Masaharu Kato and Kòtarò Shida assisted
the draftmakers. Kenjirò Ume (1860–1910), the leading figure within
the drafting group, had studied French law in Lyon after graduation
from the Law School of the Ministry of Justice (Shihò-shò Hògakkò ). After
coming back to Japan in 1890, he became professor of the Law School
of the University of Tokyo at the age of 30. He was also active in
revising the civil code. Keijirò Okano (1865–1925), too, was a pro-
fessor of the Law School of the University of Tokyo. He stood in
the tradition of the so-called “English School” and was regarded as
the pioneer of the academic study of commercial law in Japan.
Quite contrary to the repeatedly postponed enactment of the Kyù-
shòhò with its twisted legislative history, the new Shòhò came into force
113
Cf. Miwa, supra note 106, at 157; Takamura, supra note 53, at 177; Saegusa,
supra note 77, at 132.
114
Fukushima, supra note 40, at 192.
115
Id. at 192–193.
116
It was established under the Imperial Ordinance No. 11 of 1893, Hòten chòsa-
kai kisoku [Regulation of the Investigation Committee for the Codes]; Shida, supra
note 77, at 86; Saegusa, supra note 77, at 127.
with remarkable speed. As mentioned before, the law was promul-

gated on March 9, 1899, and came into effect on June 16 of that
year. It is still in force today, but was substantively amended in 1911,
1938, 1950, and afterwards, as will be described later.
d) Characteristics of the Shòhò

For its fundamental revision of the Kyù-shòhò, the drafting group worked
more closely with the German law as a model, as Roesler had
done. Again the ADHGB was consulted intensely.117 With respect to
corporation law, special attention was paid to the recently completed
reform of the regulations on the stock corporation in Germany, the
so-called Aktiennovelle of 1870, in its revised version of 1884.118 Although
the new German Handelsgesetzbuch of 1897 was more modern than
the ADHGB of 1861, which it had replaced, it was barely taken into
consideration by the committee. According to Sugawara, one rea-
son was the lack of time, for the new German code became public
only when the revision in Japan was well underway. Another rea-
son was that the new German law was regarded as unsuitable for
the actual situation of the Japanese economy, which was not yet as
developed as the German at that time.119
The Shòhò was originally organized in five books:120 Book I: General
Provisions; Book II: Commercial Companies; Book III: Commercial
Transactions; Book IV: Bills; and Book V: Maritime Commerce. There
are some major differences between the Kyù-Shòhò and the Shòhò.
First of all, the new code took the complaints about the disregard
of Japanese trade customs into account. Art. 1 of the Shòhò states
that as long as there are no deviating provisions in the code, com-
mercial affairs will be regulated by trade customs and pertinent cus-
tomary law. In case there is no such law and the Commercial Code
provides no regulation for a specific question, the provisions of the
117
K. Sugawara, Kigyò-hò hatten ron [Essays on the Development of the Laws of
Enterprise], at 14 (1993).
118
K. Òsumi, Kabushiki kaisha-hò hensen ron [Essays on the Changes of the Laws
Regarding the Stock Corporation], at 96 (1987).
119
Sugawara, supra note 117, at 14.
120
Information on the current version of the code can be found supra in note 3.
For an English translation of the original version of the Shòhò. see L. Lönholm, The
Commercial Code of Japan Translated (1898); for a German translation, see id.,
Japanisches Handelsgesetzbuch (1898).
Civil Code shall be applied. It was thus made clear that in com-
mercial affairs, trade customs have priority over the Civil Code.
From a dogmatic point of view, the Shòhò brought an improvement
in its clarification of commercial law as a special law part of civil
law.121 As mentioned before, the section on bankruptcy in the Kyù-
shòhò remained in force; the Shòhò had no relevant provisions. Insolvency
law had thus become a special branch of law, as was further
exemplified when the new Bankruptcy Law was enacted in 1922.
With respect to corporation law, the most important change was
the abolition of the licensing system and the introduction of the reg-
istration principle for the incorporation of stock corporations. The
committee gave the following reasons for that fundamental change:
it saw no further justification for differentiating between stock cor-
porations and limited partnerships or general partnerships respec-
tively which could be founded without prior government approval.
Furthermore, it wanted to join the international trend towards the
registration principle and to take into account the wishes and needs
of the business community whose reasoning—that the licensing sys-
tem was too burdensome, and especially too time-consuming—had
convinced the drafters.122
A second important amendment was the introduction of provisions
regulating mergers in the code (Art. 223 Shòhò). Apart from this and
the change with respect to the founding of a stock corporation, its
legal structure was not significantly changed in the company law under
the Shòhò; only minor amendments were made,123 such as auditors no
longer being allowed to serve simultaneously as directors of the cor-
poration (Art. 184 Shòhò ). In contrast to today, directors had to be
shareholders (Art. 164 Shòhò ). The distribution of power among the
three organs of a stock corporation—the stockholders’ meeting, the
directors, and the auditors—was not changed. From a legislative view-
point, this meeting was the most important organ of the three and
therefore it had competence for all matters concerning the business of
the corporation.124 The system worked—in contrast to the present
121
122
Cf. Shòhò shùsei-an riyùsho [Foundation of the Revised Draft of the Comercial
Code] at 105; Miwa, supra note 106, at 157–158.
123
A good description can be found in: M. Kitazawa, Kabushiki kaisha no shoyù.
keiei. shihai [Ownership, Management, and Control of the Stock Corporation], in:
Gendai-hò [Present-day Law] Vol. 9, at 67 et seq. ( J. Yazawa, ed. 1966).
124
Cf. Shòhò shùsei-an riyùsho, supra note 122, at 139.
situation—because there were comparatively few small investors. Most

of the corporations were family-held with only a few major share-
holders; the role of the auditor was often played by a big shareholder.125
A third major change with respect to company law was the intro-
duction of a new legal form of company, the kabushiki gòshi kaisha
(partnership limited by shares or joint stock limited partnership). It
closely corresponded to the German Kommanditgesellschaft auf Aktien.
However, this type of company never flourished in Japan. At any
given time there were never more than some 50 companies regis-
tered using this legal form. It was accordingly abolished in 1950.
The main reason for the failure was the complicated structure of
the kabushiki gòshi kaisha in comparison to the other legal forms pro-
vided for in the Commercial Code.
4.3 Rise and Fall: 1900–1945
1. High Growth, Depression, and War Economy
The Meiji era ended in 1912 with the death of the Meiji Tennò. The
ensuing Taishò era only lasted until 1926; it was followed by the
Shòwa era, which officially ended in 1989 when the Shòwa Tennò died.
However, because of the radical political change that accompanied
the year 1945, we will structure the first post-Meiji section through
the shift into a war economy in the early 1940s.
a) Political and Economic Developments

As mentioned at the beginning of this chapter, after two victorious
wars, the Sino-Japanese War in 1894–95 and the Russian-Japanese
War in 1904–05, Japan started to assemble a colonial empire and
became an imperialist nation. The occupation of Taiwan, the annex-
ation of Korea in 1910, and the occupation of Manchuria in 1931–32
were steps towards the creation of a colonial empire, euphemistically
125
For the shifting role the shareholder played in Japanese stock corporations,
see M. Hayakawa, Shareholders in Japan: Attitudes, Conduct, Legal Rights and
their Enforcement, in: Japan: Economic Success and Legal System, at 237 et seq.
(H. Baum, ed. 1997).
rise and fall: 1900 ‒1945 363
called the “Greater East Asia Co-Prosperity Sphere” (Dai Tòa Kyòeiken),
that finally resulted in the outbreak of the Pacific War in 1941.
As a result of the victorious wars against China and Russia, Japan
had been able to completely restore its customs sovereignty by 1910.
Export taxes were abolished and import taxes introduced, a change
that immensely helped Japan’s infant industries.126 The colonial mar-
kets in Asia were forced open to the Japanese economy. In World
War I (1914–1918), Japan had only formally made a pact with the
Allied side and was not engaged in any military warfare. Instead,
its economy profited immensely by the war, leading to an export
boom as the European and American competitors engaged in war-
fare withdrew their products from Asian markets, which then became
dependent on Japanese exports. Shipping services and supplying the
Allied side added to a high influx of foreign exchange, which in turn
financed a new round of industrial expansion.127 In summary, all of
the three wars acted as “enormous stimuli for industrial expansion”,128
and the years from the mid-1890s until approximately the late 1910s
were years of rapid growth during which the foundations of the mod-
ern Japanese industrial organization were laid.
This changed after World War I, when Japan found itself in a
severe depression that lasted until about 1932. These years were char-
acterized by a series of panics.129 The resumption of European and
American competition and the end of war-induced demands turned
the boom into a severe financial crisis which started with the stock
market crash of 1920. The so-called Ishii panic followed in 1922
after a trader collapsed because of heavy speculation in rice, which
then led to an ensuing collapse of a number of banks. In 1923 the
great Kantò earthquake struck, causing severe destruction in Tokyo
and the Kantò region. In 1927, problems of several banks—includ-
ing the Bank of Taiwan—led to yet another financial panic and a
run on the banks. Nearly 40 banks were forced to close their doors.
The lifting of the gold embargo in 1930 together with the reper-
cussions of the Great Depression of 1929 and a strict deflationary
126
127
128
Hirschmeier & Yui, supra note 9, at 146.
129
A good description of this period can be found in: T. Nakamura, Depression,
Recovery, and War, 1920–1945, in: The Cambridge History of Japan, Vol. 6, The
Twentieth Century 455 et seq. (P. Duus, ed. 1988).
policy further hit the Japanese industry hard. Repeated massive falls
in prices and large-scale unemployment were the hallmarks of the
most severe depression in modern Japanese history.
Late in 1931, under the leadership of the new Finance Minister
Korekiyo Takahashi (1854–1936), the government initiated a crisis
management program. Japan left the gold standard and devalued its
currency. Interest rates were lowered and massive public investment
started, mostly in heavy industries and armament. Protectionist poli-
cies further helped to engineer a recovery. One of the results was a
rapid rise in exports which led to the first trade disputes with other
nations, especially with the U.S. and Great Britain. Government-
encouraged and legally aided cartels were formed in most industries
in an attempt to deal with the economic slump.130 The governmen-
tal control measures included the Industrial Organizations Law,131
the Export Union Law,132 and the Important Industries Control Law
of 1931,133 under which outsiders were forced to stick to cartel prices.
The cartels which were built up during these years continued to
exist after the depression was over.
The growing influence of the military after 1931 led to a forced
structural change with an orientation towards heavy and chemical
industries. Heavy industrialization was seen as the only way out of
the depression.134 A series of special laws were promulgated to pro-
mote the development of these industries, e.g., the Oil Industry Law
of 1934135 or the Automobile Manufacturer Law of 1936.136 Their
contents was similar: strict governmental control, such as approval
of yearly business plans; but also special governmental protection,
including tax exemptions, high tariffs on competing foreign products,
130
Cf. Nakamura, supra note 129, at 459; Y. Kanazawa, Sangyò-hò [Industrial
Laws], in: Nihon kindai-hò hattatsushi [The Historical Development of Modern Law
in Japan] at 287 (N. Ugai, ed. 1958).
131
Kògyò kumiai-hò, Law No. 69 of 1931.
132
Yushitsu kumiai-hò, Law No. 44 of 1931.
133
Jùyò sangyò tòsei-hò, Law No. 40 of 1931. The text of these three laws can be
found with S. Kojima, Wagakuni shuyò sangyò ni okeru karuteruteki tòsei [Monopoly
Control in the Major Industries in Japan] (1932) at 551 et seq.
134
Cf. M. Udagawa & S. Nakamura, Japanese Business and Government in the
Inter-war Period: Heavy Industralization and the Industrial Rationalization Movement,
in: Government and Business. Proceedings of the Fifth Fuji Conference 83 et seq.
(K. Nakagawa, ed. 1980).
135
Sekiyu-gyò-hò, Law No. 26 of 1934.
136
Jidòsha seizò jigyò-hò, Law No. 33 of 1936.
rise and fall: 1900 ‒1945 365
and other protectionist policies in their favor.137 By 1935 those spe-

cially promoted and largely military-oriented industries held some 50
percent of all production.138
In 1936 Takahashi, who had engineered the recovery while Finance
Minister, was murdered by a military assassination squad. Thereafter
the military openly influenced politics and the economy. In the late
1930s, two-thirds of the GNP was consumed by military spending.
In 1939 Japan introduced price and wage controls, and the coun-
try increasingly resembled a wartime controlled economy. The final
shift came with Japan’s entry into World War II in 1941. Thereafter,
its economy became a typical command economy for a country
engaged in warfare. The economic result is known: by the time of
its defeat in 1945, Japan had lost a quarter of its national wealth.139
However, even during those hard years of military command,
many roots for the rapid recovery in the 1950s and 1960s were
already being laid. Part of the wartime economy was an ever stronger
influence of the bureaucracy on the economy, an influence which
continued well into the postwar era along with its main tool, the so-
called administrative guidance ( gyòsei shidò ), which became famous in
rebuilding Japan after the war. Other features were the enterprise
unions, the subcontractor system, and the seniority wage system,
mostly introduced during the 1930s and early 1940s.140
b) Rise of the Modern Corporation in Japan

During the growth years, the dual structure of the Japanese economy
had not changed significantly: the traditional industries still dominated
by far. The modern sectors were growing, but the number of modern
industries still remained small. In 1915, less than 10 percent of the
gainfully employed population was working in the modern sectors.141
Until World War I, the heavy industries had to be promoted and
nurtured by the government for policy reasons and largely did not
137
138
139
140
Cf. K. Odaka, Nikonteki ròshi kankei [ Japanese Labor Relationships], in: Gendai
nihon keizai shisutemu no genryù [ The Origins of the Modern Japanese Economic
System] at 156–157 (T. Okazaki & M. Okuno, eds. 1993).
141
attract investments.142 Only light industries like textiles (cotton spin-

ning and silk reeling) were already firmly based on modern technology
and organization and showed a self-sustaining growth.143 On the
other hand, it was mainly the steady growth of the secondary indus-
tries that raised productivity and, as a result, the overall output. And,
although the absolute numbers were still small, the increase of com-
panies—limited partnerships as well as stock corporations—was steady.
The enactment of the Shòhò in 1899 had significantly contributed to
this process, and companies were the most widely used legal forms.
In 1900 there were 4,254 stock corporations and 3,560 limited part-
nerships in business compared to 784 general partnerships.144 After
1945 the stock corporation became by far the most important form
of enterprise in Japan.
A look at the absolute numbers may be misleading. Though yet
small in number, the large, modern, and efficient companies, often
organized in the form of stock corporations, were increasingly able
to monopolize scarce capital and managerial talent. These enter-
prises showed the highest growth rates during the boom years and
were able to handle the depression years far better than the bulk of
small companies because of their vast resources, superior organiza-
tion, and government promotion. If the Meiji era was the era of indi-
vidual entrepreneurs acting as industrial pioneers, from the Taishò era
onwards professionally employed managers played an ever-growing
role. This second generation consisted mostly of well-trained college
graduates.145
The large companies dominated many of the modern sectors and
more or less all of the basic industries such as mining, heavy con-
struction, shipbuilding, etc. The vast majority of small and medium
enterprises, on the other hand, was overshadowed and left behind
with respect to capital, human resources, and technology.146 This
dual structure deepened even further during the crisis of the 1920s.
The group of small and medium companies could roughly be divided
142
Cf. Nakamura, supra note 129, at 421, 428 et seq.
143
144
For a comparative overview of the development of the different forms of enter-
prise from see infra, at the appendix with further references.
145
A good overview on the emergence of this new middle class can be found
with R. Iwauchi, The Growth of White-Collar Employment in Relation to the
Education System, in: Japanese Management in Historical Perspective 83–105 (T. Yui
& K. Nakagawa, eds. 1989).
146
rise and fall: 1900 ‒1945 367
into three categories.147 A first followed an artisan or merchant tra-

dition from the Tokugawa era that were manufacturing traditional
products and were located mostly in rural areas and small towns. A
second category comprised companies producing modern goods on
a small-scale basis relying on imported technologies located mostly
in cities. A third group consisted of subcontractors for the large
industrial enterprises whose main field of activity was the produc-
tion of machines, ships, and the like. The third group of companies
was typically located in the vicinity of the large producers they were
working for and on whom they often relied for managerial guidance
as well as technical and financial support. This group of companies
varied significantly in size. Over the years some became quite large
companies themselves.148
Many of the large enterprises were organized as a special form of
conglomerate, the so-called zaibatsu, a category which requires some
special attention here because of the preeminent role these firms
played in the Japanese economy before World War II and—for at
least some, in a significantly transformed way—after the war as well.
c) Origins and Growth of the Zaibatsu

Following the definition of Hidemasa Morikawa, a zaibatsu can best
be described as a group of diversified businesses owned exclusively
by a single or extended family.149 At the beginning they were organ-
ized on a partnership basis, which was in most cases transformed
into limited partnership companies after the Kyù-shòhò came into
effect in 1893.150 It was not until the 1920s that most of them were
further transformed into multi-subsidiary enterprises consisting of var-
ious stock corporations under the roof of a holding company. This
later form was in many respects quite similar to the German Konzern
but quite different from the postwar Japanese enterprise groups, the
keiretsu.151 The ten largest zaibatsu were Mitsui, Mitsubishi, Sumitomo,
Yasuda, Furukawa, Òkura, Asano, Fujita, Kuhara, and Suzuki. The first
147
148
149
An excellent description of the zaibatsu can be found in Morikawa’s study,
Zaibatsu—The Rise and Fall of Family Enterprise Groups (1992); the following pas-
sages rely mainly on that source.
150
See supra at II.l.c) (3).
151
Morikawa, supra note 149, at xviii; for the keiretsu, see infra IV.1.c).; the
differences are described by Yonekura, supra note 39, at 63–65.
four were the most important, and out of these the first two were
by far the largest. By 1930 these ten conglomerates accounted for
nearly one-fifth of all paid-in capital. As mentioned before, they con-
trolled important parts of the modern sectors and dominated the
basic industries by the late 1920s. To name but a few examples, in
1928–29 Mitsui Trading alone accounted for some 15 percent of
Japan’s total exports and some 14 percent of its total imports; Mitsui
Mining produced roughly 14 percent of all coal mined in Japan; and
Mitsui Trust held more than 28 percent of all cash trusts.152 According
to a 1936 survey about the affiliation of companies with the four
biggest zaibatsu, 101 companies were affiliated with the Mitsui, 73
with Mitsubishi, 44 with Yasuda, and 34 with Sumitomo; about half of
these were manufacturing firms.153
The origin of the zaibatsu dates back to the early Meiji years, and
in the case of Mitsui and Sumitomo even further back to Tokugawa
times.154 Some of them started as mining enterprises, but most of
their founders were so-called “political merchants” (seishò ). This term
describes traders and financiers who used their connections to the
political leaders to gain governmental patronage such as the grant-
ing of monopolies. Thus they were able to make huge profits and
to amass enormous wealth. On the other hand, these rapidly diver-
sifying companies were the driving force behind Japan’s industrial-
ization. In the 1870s and 1880s, the accumulated wealth enabled
the family businesses to start diversifying their enterprises, thus lay-
ing the foundation for the transformation into what later was called
zaibatsu, which literally means “financial group”. This trend was accel-
erated in the 1880s by the purchase on easy conditions of numer-
ous state enterprises which had become too expansive for the
government to continue to manage.155 The combination of these two
factors—diversification, and adoption of modern company structures
under first the Kyù-shòho and then the Shòhò—was decisive in the
final transformation of family businesses into the zaibatsu. The process
was further helped by the growing number of employed salaried
152
Figures cited from Morikawa, supra note 149, at xix; a comprehensive analy-
sis about the development and rise of the Mitsui zaibatsu can be found in Yonekura,
supra note 39, at 65 et seq.
153
Figures cited after Y. Suzuki, Japanese Management Structures, 1920–80, at
46 (1991).
154
For a detailed description, see Morikawa, supra note 149, at 3 et seq.
155
Cf. Morikawa, supra note 149, at 26.
rise and fall: 1900 ‒1945 369
managers who played a vital role in the emergence of these enter-

prise groups. Although the paths of growth and diversification differed,
around the year 1910 most of the zaibatsu had developed into their
distinctive shapes. A typical zaibatsu such as Mitsui or Mitsubishi was
based on three pillars: banking, trading, and mining.156 Besides the
crucial role of group-centered banks supplying internal (meaning
cheap and reliable) financing,157 the general trading company in each
group also played an important role by supplying strategic services
to the other members of the group.158
The economic growth during World War I promoted an ever-
increasing concentration of economic and financial power in the
hands of the zaibatsu, especially in tertiary sectors such as banking,
insurance, and trading. Simultaneously, the major groups intensified
their advance into heavy industry where they soon occupied leading
positions. The boom during World War I fostered the emergence of
more zaibatsu. Wealthy families started to follow the example of the
Meiji-era zaibatsu and began to diversify their enterprises. The new
groups included well-known names such as Suzuki, Iwai or Nomura.159
After the enactment of the corporation law in the Old Commercial
Code in 1893 and in the new code in 1899, both of which pro-
vided legal forms which limited the liability of companies, the zaibatsu
quickly made use of these possibilities. At first, most of them pre-
ferred the legal form of a gòshi kaisha because this type required less
disclosure than a stock corporation.160 Some years later, however,
one after another started to transform their companies into stock
corporations. The change was a vital part of a new strategy, the
adoption of the so-called “family multi-subsidiary system”.161 Mitsui
156
Cf. Morikawa, supra note 149, at 59 et seq.
157
The financing of the zaibatsu is described by H. Masaki, The Financial
Characteristics of the Zaibatsu in Japan: The Old Zaibatsu and Their Closed
Finance, in: Marketing and Finance in the Course of Industrialization. Proceedings
of the Third Fuji Conference, at 33 et seq. (K. Nakagawa, ed. 1978).
158
A very good overview of the role of the sògò shòsha can be found in various
contributions in: S. Yonekawa (ed.), General Trading Companies: A Comparative
and Historical Study (1990).
159
160
E. Takahashi, Konzern und Unternehmensgruppe in Japan—Regelung nach
dem deutschen Modell? [Concern and Enterprise Groups in Japan—A Regulation
According to the German Model?], at 17 (1994).
161
Cf. Morikawa, supra note 149, at 182 et seq.; see further Hirschmeier & Yui,
supra note 9, at 212 et seq.
was the first to introduce this structural change between 1909 and
1911 after a group of family members and salaried managers con-
ducted a study tour through some European countries and the U.S.,
where they learned of the advantages and widespread use of the
legal form of a stock corporation.162
A main reason for that transformation was the wish to protect the
fortunes of the founder families by a structure of strictly limited lia-
bility provided by the stock corporation. Furthermore, the legal form
of a stock corporation brought with it certain tax advantages. In
1905 the government introduced a tax reform which doubled the
income tax for the partnership companies for some years and levied
taxes on retained earnings in closed, mostly family-owned, compa-
nies because the state needed money to finance its war against Russia.
The kabushiki kaisha was spared these increased taxes, and therefore
the incorporation of a company as a stock corporation became the
preferred form of enterprise. Another reason was the attempt to fend
off growing public criticism against the closed zaibatsu firms by trans-
forming them at least nominally into public companies. In reality,
of course, the transfer of shares was prohibited in the charter and
almost all shares were held directly or indirectly by family members.
In the case of Mitsui, the four main companies of the group, Mitsui
Bank, Mitsui Bussan, Mitsui Mining, and Tòshin Warehousing, were trans-
formed into stock corporations in 1909. The shares of those four
companies were held by the newly formed Mitsui Gòmei Kaisha, which
acted as a holding company and in which the heads of the eleven
Mitsui houses were the sole partners.163 Though non-Mitsui promot-
ers and directors had to be made shareholders of the stock corpo-
rations for legal reasons, their ownership was strictly nominal. The
holding company was in any case entirely in the hands of family
members. Later, further indirect subsidiaries of the group were trans-
formed into stock corporations.
Of interest is the question of managerial control, which varied
significantly from company to company and changed at different
times.164 However, some basic features seem to be quite typical.
Holding companies such as Mitsui Gòmei Kaisha exercised control over
the joined enterprises as they held all the shares. But this control
162
163
Cf. id., at 183.
164
Cf. Suzuki, supra note 153, at 51 et seq.
rise and fall: 1900 ‒1945 371
appears to have been less a strict directing from above than a kind
of informal policy coordination between itself and the major sub-
sidiaries. And it helped to prevent an overly direct interference of
the owner families in the daily management of the subsidiaries. The
holding companies acted in this way rather as head offices for the
groups integrating the various subsidiaries.165 The salaried managers
who were in charge of the individual companies as executive direc-
tors ( jòmu torishimari-yaku) were regarded as mere employees working
only for the good of the zaibatsu families and owing strict loyalty
towards them. However, with their great talent they did actually
have a significant influence on how the zaibatsu companies were run,
even though the presidents of the big subsidiaries were family mem-
bers and part-time directors represented the various families.166 It
could be said that there was a kind of fusion between the manag-
ing and the controlling functions. The separation between owner-
ship and control was not as clearly developed as in some Western
companies: the side of the owners was present in the form of fam-
ily members on the board, especially the president, although the
employed—and highly paid—senior executive director (senmu torishi-
mari-yaku) was actually leading the company.167
The other major zaibatsu were quick to follow the example of Mitsui.
Sumitomo started to adopt that system in 1912, and Mitsubishi followed
in 1917. The rapid growth forced the zaibatsu to give up their financial
exclusiveness rather soon—at least partly—as even their huge financial
resources became strained. In 1919 and 1920 respectively, Mitsui and
Mitsubishi made (limited) public offerings to raise additional capital.
However, this naturally did not mean that they were losing control
as they were keeping majority positions.168
During the depression years the zaibatsu in general fared com-
paratively well, at least initially. Only companies who belonged to
one of the big zaibatsu were able to ride out the crisis years of the
1920s fairly well because of their vast financial resources. In gen-
eral, the power of the zaibatsu grew significantly during these trou-
bled times. However, even some of the big zaibatsu, e.g., Kuhara or
165
166
167
168
A detailed description of the widespread use of holding companies in pre-war
Japan can be found with Suzuki, supra note 153, at 44 et seq.
Fujita, collapsed in the late 1920s. A further strain came with the
anti-zaibatsu movement of the economically depressed early 1930s.
The growing criticism was mainly inspired by anti-capitalistic polit-
ical activists on the left as well as on the right. The excessive eco-
nomic power, far-reaching political influence combined with widespread
corruption, and allegedly unethical profiteering by the big groups
were the main causes for that movement. It finally turned violent
when the senior executive director of the Mitsui holding company,
Takuma Dan, was assassinated by right-wing terrorists in 1932.
Afterwards the so-called “zaibatsu conversion” began.169 The compa-
nies were opened up. Further stocks were sold to the public, most
family members resigned from directorial posts, and charitable funds
were created to dampen the criticism of the zaibatsu. Close cooper-
ation with the military and nationalistic bureaucrats was another way
to deflect public criticism.170 Increasingly excessive demands by the
military in its arming of the country forced the groups to grow
beyond their original structure and open up further by raising funds
in way of public offerings and reducing the family control.
In the 1930s, so-called “new zaibatsu” such as Nippon Sangyò (Nissan)
emerged, large industrial groups which were an active part of the
military expansion during the 1930s.171 These companies differed
from the old zaibatsu by quickly creating large enterprise groups using
only little capital of their own, financing their ventures externally
instead by the raising of money through public offerings while keep-
ing control via a system of holding companies. Protection by the
military further helped. The partly sought-after, partly rather reluc-
tantly developed close connections between various zaibatsu and the
nationalist bureaucracy as well as the armed forces proved deadly
in the end, for this was the main reason behind their forceful dis-
solution under the Allied occupation after World War II, as will be
described later.172
169
Cf. Masaki, supra note 157, at 49 et seq.
170
The growing influence of the state on the firms is analyzed by T. Okazaki,
The Japanese Firm under the Wartime Planned Economy, in: The Japanese Firm—
The Sources of Competitive Strength, at 350–378 (Aoki & Dore, eds. 1994).
171
Cf. Morikawa, supra note 149, at 227; Masaki, supra note 157, at 49 et seq.
172
See infra IV.1.
rise and fall: 1900 ‒1945 373
3. Development of Commercial and Corporate Law
This rapid development of the modern sector corresponded with a

rise in the number of stock corporations as well as the growth of
individual enterprises into very large corporations focused on mass
production. In the course of these developments it soon became clear
that the corporation law as regulated in the Shòhò had to be adapted.
Furthermore, the economic boom was accompanied by a widespread
fraudulent use of the new forms of enterprise, especially the stock
corporation. This led to two rather comprehensive reforms. The first
in 1911 amended some 200 articles of the Shòhò. This reform was
influenced by the German Handelsgesetzbuch (HGB) of 1897, which
replaced the ADHGB of 1861 as mentioned before.173 The second
reform in 1938 was even more thorough. After years of prepara-
tions on a comparative basis, some further 500 articles of the Shòhò
were significantly amended. This reform, especially, was no isolated
Japanese phenomenon. Rather it followed an international trend of
adapting corporation laws to the necessities of a modern industrial
society. This trend could be observed in the 1920s and 1930s in
various countries including Germany. Again, Germany’s reform of
its pertinent provisions in the HGB in 1931, and especially the new
law on stock corporations of 1937, the Aktiengesetz,174 which replaced
the relevant sections in the HGB, were closely watched in Japan.
a) The Reforms of 1911 and 1938

Most of the amendments in both reforms referred to the regulations
of the stock corporation, and this will be our focus here. The aim
of the 1911 reform of the Shòhò175 was twofold. First, it aimed at
clearing up doubts about the interpretation of various provisions
which had arisen in the first decade of its application.176 For example,
173
See supra II.2.c.
174
Gesetz über Aktiengesellschaften und Kommanditgesellschaften auf Aktien, Law of January
30, 1937, RGBL. I, 107.
175
Law No. 73 of 1911. For an English translation of the revised version, see L.
Lönholm, The Commercial Code of Japan (5th ed., 1911). An extensive English
commentary of the 1911 code can be found in Becker, Commentary of the
Commercial Code of Japan, 3 Vols. (1913).
176
Cf. M. Kitazawa, Kabushiki kaisha no shoyù. keiei. shihai [Ownership, Management,
and Control of the Stock Corporation], at 71, in: Gendai-hò [Modern Law] Vol. 9
( J. Yazawa, ed., 1966); Sugawara, supra note 117, at 20; Saegusa, supra note 77,
at 171–175.
under Art. 190 of the Shòhò of 1899, a stock corporation had to pre-
pare a balance sheet every year. However, the methods for evalu-
ating corporate assets were not legally determined. Among other
difficulties, it was unclear and disputed whether the book value or
the present (market) value—if lower than the former—had to be taken.
The second aim of the reform was the attempt to prevent the
foundation of so-called “bubble companies” (hòmatsu kaisha) which
had become an increasingly popular tool for defrauding investors.177
As mentioned before, the tax reform of 1905 favored the kabushiki
kaisha which consequently became the preferred form of enterprise,
and in quite a number of cases it was used to defraud investors. If
well-known personalities announced their intention to establish a
stock corporation, investors were willing to pay a premium and pur-
chase stocks at a price significantly higher than the face value of the
stocks. Often these promoters were mostly interested in cashing up
that premium and did not actively engage in running the company.
Usually, the result was a prompt business failure with the investors
losing all their invested capital. A further consequence was an increas-
ing loss of confidence of the investing public in the stock corpora-
tion in general.
The 1911 amendments, therefore, introduced a strict personal lia-
bility of promoters. Incorporators who violated their duties towards
the corporation could be held jointly responsible (Art. 142–2 Shòhò).
In case of gross negligence or intentional violation, they could be
liable for damages arising to third parties. Some significant changes
concerned questions of corporate governance. For the first time the
relationship between directors and company was put on a clear legal
basis. The new—and in substance still valid—regulation provided for
an agency contract between the director and his company.178 A fur-
ther amendment was the introduction of a liability for damages:
directors who had violated their duty towards the company could
now be held liable for the resulting damages, another provision which
is still valid today substantially.179 Past abuses by directors induced
a third amendment. As described before,180 under the Kyù-shòhò every
director automatically had the individual power to legally represent
the corporation, a concept which the Shòhò had retained. As this
177
Sugawara, supra note 117, at 19.
178
Art. 164 II Shòhò with reference to Art. 644 Civil Code.
179
Art. 177 Shòhò —the pertinent provision of the present Shòhò is Art. 266.
180
See supra at No. II.2.c).
rise and fall: 1900 ‒1945 375
concept had been misused fairly often to the disadvantage of the

corporation and its shareholders, the amendment of the law pro-
vided for a possibility of restricting the power of representation in
the charter of the corporation or by decision of the general meet-
ing, either to a joint representation by various directors or to indi-
vidual ones with the sole power to represent the company.181
Thus, the reform also paid respect to the development of a hier-
archical structure within the management of large stock corporations.
At the end of the Meiji era, the basic outline of the management
structures seen today in large Japanese stock corporations had already
taken shape with its distinction between president (shachò ), senior
managing or executive directors (senmu torishimari-yaku), managing
directors ( jòmu torishimari-yaku), and director (torishimari-yaku).182 Now
a legal possibility had been created to reserve the power of repre-
sentation for distinct groups of directors and thereby to more clearly
distinguish between their different functions.
The reform of the Shòhò in 1938 which came into effect January
1, 1940, was much more comprehensive than that of 1911.183 As
mentioned before, some 500 articles were amended.184 The amendments
concerned again mainly the regulations about the stock corporation,
which were significantly altered and supplemented. The reform was
largely based on the concepts in the new German Aktiengesetz (Stock
Corporation Law) of 1937.185 Major aims of the reforms were bet-
ter enforcement of the control of managers and more complete pro-
tection of shareholders against abuses of directors. As the number
of private investors increased, the separation of ownership and man-
agement in large corporations became a growing problem in Japan.
Again, this was no isolated phenomenon but could be observed in
other industrialized economies as well.
181
Art. 170 Shòhò.
182
Cf. M. Miyamoto et al., Nihon keiei-shi [The History of Management in Japan],
at 112 (1995).
183
Law No. 72 of 1938. A German translation of the revised code can be found
in K. Vogt, Handelsgesetzbuch für Japan in der Fassung des Gesetzes vom 4. April
1938 [Commercial Code of Japan as Amended by the Law of April 4, 1938] (1940).
184
Cf. Vogt, supra note 183, at III et seq.; Kitazawa, supra note 176, at 72 et seq.;
T. Okushima, Shòwa jusannen shòhò kaisei [ The 1938 Reform of the Commercial
Code] in: Shòwa Shòhò-gaku-shi [History of Studies on Commercial Law in Shòwa-
Period], at 16 et seq. (T. Okushima & K. Kurasawa, eds. 1996).
185
Cf. K. Ueyanagi, in: Shinpan chùshaku kaisha-hò [Commentary on Corporate
Law] Vol. 1, at 11 (K. Ueyanagi & T. Òtori & A. Takeuchi, eds. 2. ed. 1985).
Another aspect related to the rise of small shareholders was the need
to better protect the rights of minority shareholders. This was partly
accomplished by providing for intensified disclosure and a stricter
enforcement of liability of directors and auditors. For example, a
new Art. 282 stipulated that the financial statements of the company
had to be kept ready for an inspection by the shareholders at the
company’s head office a week before the general shareholders meet-
ing. The balance sheet had to be published in the daily newspapers
or the Official Gazette (Kanpò ) (Art. 166 Shòhò). Before the 1938
reform, directors could be given an immediate formal approval by
the general meeting. The new Art. 284 stipulated that relief from
possible liabilities would only be valid after a lapse of two years from
the date of the shareholders’ resolution.
Whereas the German reform tried to restrict the competence of
the general meeting, the Japanese reformers were interested in broad-
ening its competence and they therefore enlarged the catalogue of
decisions for which a prior consent of the shareholders had to be
obtained.186 In an attempt to improve the performance of companies
and to make it possible to recruit better managers, non-shareholders
were made eligible as directors and auditors.187 In a further amend-
ment to the reform of 1911, the board could now be empowered
in the charter to select by itself the directors who were to represent
the company legally. This was a further step towards the present
regulation in Art. 261 Shòhò, under which only directors chosen by
the board are empowered to represent the company legally.
But it was not only German legislation which influenced the
Japanese reform. English concepts had also been taken into account:
The sections concerning the special liquidation (tokubetsu seisan) and
the reorganization (seiri) of a stock corporation were introduced for the
first time.188 They were modeled after English concepts. The special
liquidation, an insolvency procedure for complicated cases which is
carried out under the guidance of a court, differs significantly from
ordinary insolvency procedures in not making it necessary to prove
that the assets of a company are insufficient to satisfy its liabilities.
186
Cf. Kitazawa, supra note 176, at 72.
187
Art. 254, 280 Shòhò.
188
The procedures (Art. 431 et seq. and Art. 381 et seq. respectively) were still
used in the 1980s and 1990s without basic changes; for details, see Z. Kitagawa
(ed.), Doing Business in Japan, Vol. 4, § 1.06[27] (1989).
rise and fall: 1900 ‒1945 377
The reorganization procedure opens a middle way between a com-

pulsory settlement in bankruptcy and the compulsory winding up of
the insolvent company; its aim is to prevent a squandering of assets
of the company.
In general, the reform clearly shows that an independent legal
development was well on its way in Japan.189 Later reforms in the
years until 1945 were mainly aimed at strengthening the supervisory
powers of the state during the war and were abolished immediately
after the war. Therefore they do not need to be discussed here.
b) Introduction of the Yùgen Kaisha

Another major event in corporation law in the decades between the
turn of the century and World War II was the introduction of a
new legal form of enterprise in 1938: the yùgen kaisha or limited lia-
bility company.190 The yùgen kaisha corresponds more or less with the
German Gesellschaft mit beschränkter Haftung (GmbH ), which was its main
model.191 But interestingly, it was only introduced in Japan more
than 40 years after Germany had introduced its original version of
the limited liability company in 1892. Although the Meiji legislators
had shaped much of the corporate law along German lines as
described above, they obviously saw no need for introducing a fourth
form of enterprise besides the general and the limited partnership
company and the stock corporation, with the last of these enjoying
their special attention in the drive to modernize Japan. Furthermore,
in contrast to the situation with respect to the stock corporation or
the limited partnership company, Japanese entrepreneurs in the first
two decades of the Meiji era—before the promulgation of the Kyù-
shòhò—did not actually operate their businesses with forms of enter-
prise similar to the limited liability company because they had been
getting by with the other forms based on the individual charters of
their companies. What then changed the minds of the legislators?
189
See Vogt, supra note 183, at IV.
190
Another English translation used is “private company limited’’ or ‘‘limited
company”.
191
T. Òtori, Yùgen kaisha-hò no kenkyù [Studies on the Limited Liability Company],
at 70 (1965); T. Sakamaki, Heisa kaisha no hòri to rippò [Legislation and Theory of
the Closed Corporation], at 238 (1973).
The interest in the introduction of a Japanese version of a lim-

ited liability company seems to have been triggered by an academic
study.192 In 1917 and 1918, Naojirò Sugiyama from Tokyo University
published a comparative analysis of that form of business in other
industrialized countries.193 He claimed that this form of enterprise
was becoming increasingly popular there and pointed out that different
versions of it existed already in Great Britain, Germany, and Austria,
and that France had just introduced it in 1925. In Japan the num-
ber of small companies had grown significantly in the boom years
during World War I. Most of them used the legal form of a stock
corporation. But the regulations of this type of enterprise were designed
for large enterprises and were therefore generally regarded as too
complicated and impractical for small companies. A first draft of a
new law regulating the limited liability company was published in
1931. After much discussion, the final draft was presented in 1937
and promulgated as the Yùgen kaisha-hò in 1938: it came into effect
on January 1, 1940.194
As already mentioned, the yùgen kaisha was structured mainly on
the German GmbH, but some of its original features were borrowed
from the English version of a limited liability company. For example,
the number of partners was limited to a maximum of 50 persons.195
Technically, the Yùgen kaisha-hò is a rather short law with many ref-
erences to the regulations of the stock corporations in the Shòhò, a
characteristic that has sometimes been criticized as impractical and
unsuitable.196
However, the new form of enterprise was quite readily accepted
by the market. In 1941, in the second year after its introduction,
7,451 yùgen kaisha (YK) were already in operation as compared to
39,284 kabushiki kaisha (KK). At the end of the war in 1945, the
number of YKs had risen to 18,722, nearly half as many as KKs
192
Sakamaki, supra note 191, at 235 et seq.
193
N. Sugiyama, Genkò yùgen sekinin kaisha-hò [ The Modern Regulation of the
Limited Liability Company], 35 Hògaku Kyòkai Zasshi No. 12, at 26 et seq. (1917);
Vol. 36, No. 1, at 71 et seq., No. 2, at 91 et seq., No. 3, at 68 et seq. (1918).
194
Law No. 75 of 1938 as amended by Law No. 66 of 1994. For an English
translation, see EHS, Vol. II., JD, No. 2230. The translation covers the Yùgen kaisha-
hò as amended to 1981.
195
Cf. J. Eguchi, in: K. Ueyanagi et al., supra note 184, at 55 (Vol. 14, 1990);
Sakamaki, supra note 191, at 242.
196
Cf. E. Hattori & K. Katò, Seibun yùgen kaisha-hò kaisetsu [Comprehensive
Commentary on the Law of the Limited Liability Company], at 1 (1984).
rise and fall: 1900 ‒1945 379
(46,042).197 The form of the yùgen kaisha was especially used in the
textile industry and with smaller retail companies.198 Some fifty years
later, in the late 1990s, more yùgen kaisha than stock corporations
were doing business in Japan. However, virtually all major Japanese
companies were incorporated in the form of a kabushiki kaisha.199
c) Related Legislation
In 1922 the provisions on bankruptcy in the Kyù-shòhò—the only part
of it still in force—were replaced by a new bankruptcy code, the
Hasan-hò.200 Whereas the old regulation had been primarily shaped on
the pertinent French code of 1838—the German Hermann Roesler,
on whose drafts it had been based, had preferred the French model—
the new Japanese code was strongly influenced by the German bank-
ruptcy law, the Konkursordnung of 1877.
In 1934 Japan joined the Geneva Unification Treaties of 1931.
Two new laws replaced the regulations on bills and checks in the
fourth book of the Shòhò: the Law on Bills201 and the Law on Checks.202
d) Reception of Legal Theory

One characteristic aspect of legal science in Japan is often described
as the “Japanization” (nihon-ka) of the legal regimes and legal thought
of Europe. Although this surely is an exaggeration, a fundamental
receptivity to and Japanization of European legal theory can be found
in the field of commercial law. This can be shown by the discus-
sion about the nature of commercial law.
The understanding of commercial law as the law of enterprise was
the result of a long and controversial discussion among Japanese
197
Cf. Nihon Tòkei Kyòkai [ Japan Statistical Association] (ed.), Nihon chòki tòkei
sòran [Historical Statistics of Japan] Vol. 4, at 162 (1987).
198
H. Shimura, Yùgen kaisha no hòteki jittai [The Legal Practice of the Limited
Liability Company], Ritsumeikan Hògaku No. 121–124, at 545 (1975).
199
A complete overview of the further development of the yùgen kaisha until 1995
can be found in the Appendix, Table 3.
200
Law No. 71 of 1922 as amended by Law No. 79 of 1991; for an English
translation, see EHS Vol. II LU No. 2340.
201
Tegata-hò, Law No. 20 of 1932 as amended by Law No. 61 of 1981; for an
English translation, see EHS Vol. II JB No. 2210.
202
Kogitte-hò, Law No. 57 of 1932 as amended by Law No. 61 of 1981; for an
English translation, see EHS Vol. II JB No. 2220.
scholars which intensified significantly in the 1930s. After his return

from Germany, Kòtarò Tanaka (1890–1974), a famous scholar of
commercial law at the University of Tokyo, presented a doctrine of
commercial law which at first drew a wide following but with time
garnered increasing criticism in Japan. He stated that commercial
law could not be distinguished from civil law on the grounds of cat-
egorization or the issues regulated; instead, he used the concept of
shòteki shikisai (the “coloring of commerce”).203 With the concept of
“commercial colors” he was referring to institutional phenomena such
as non-individuality and the mass character of modern business trans-
actions. His theory was originally based on German concepts devel-
oped by Philipp Heck.204 Heck, a well-known professor of law at
the University of Tübingen at the beginning of the century, ques-
tioned why a separate commercial law had developed.205 He found
the reason in the fact that commercial law—in contrast to civil law—
deals with large-scale transactions involving great numbers of persons.
Tanaka’s concept was strongly criticized by his pupil Kan’ichi
Nishihara (1899–1976), professor at the former Keiò University and
later the Osaka City University, who studied under Karl Wieland
at Basel University in 1931. Wieland had argued that the key for
understanding the nature of commercial law and the common fea-
ture of its various provisions was the concept of the enterprise.206
On this ground Nishihara attacked the concept of ‘‘commercial col-
ors” as being too vague, proposing Wieland’s idea instead and argu-
ing that the provisions in the commercial code should be interpreted
as the law of the enterprise.207 His view finally became generally
accepted among Japanese scholars. Nowadays, his understanding of
commercial law is almost unanimously accepted in Japan.
Interestingly, in Germany, where the commercial code is still based
203
Cf. K. Tanaka, Kaisei shòhò sòsoku gairon [The General Provisions of the Revised
Commercial Code], at 7 et seq. (1938).
204
Cf. K. Tanaka, Hòhò toshite no shòteki shikisai [Commercial Color as a Method],
in: id., Chosaku-shù [Collected Essays] Vol. 7, at 65 (1954); E. Hattori, Shòhò sòsoku
[General Provisions of the Commercial Code], at 6 (3. ed., 1983); Sugawara, supra
note 117, at 32.
205
Cf. P. Heck, Weshalb besteht ein von dem bürgerlichem Rechte gesondertes
Handelsprivatrecht? [Why Do We Have a Separate Private Commercial Law Besides
the Private Law?], 92 Archiv für die civilistische Praxis, 438, 463 (1902).
206
Cf. K. Wieland, Handelsrecht [Commercial Law], Vol. 1, at 145 (1921).
207
K. Nishihara, Shòhò sòsoku [General Provisions of the Commercial Code], at
230 (1938).
reconstruction and economic miracle (1946‒1980s) 381
on the concept of the merchant, a similar discussion is now taking

place with prominent scholars proposing a new understanding of the
German code as a law of enterprises.208 The discussions in both coun-
tries are taking the same path.
4.4 Reconstruction and Economic Miracle (1946–1980s)
1. Reform, Reconstruction, and Growth
In only three decades Japan achieved its rise from a country dev-
astated and impoverished by war and defeat to one of the leading
nations of the world and an economic superpower (keizai taikoku). In
this section we will take a short look at the economic and political
development in these years. We will (a) focus briefly on the restruc-
turing under the Allied occupation from 1945 to 1951 and (b) its
results in shaping the corporate landscape before (c) concentrating
on the major reform of the corporation law in 1950, which was a
part of the so-called ‘‘democratization” of the economy after 1945,
with a brief treatment of some later amendments (2.).
a) From the Ruins to the Miracle

On August 15, 1945, Emperor Hirohito announced the end of the
war. Japan acknowledged its defeat and accepted the provisions of
the Potsdam Declaration, and in the same month the first occupa-
tion of the country in Japanese history began with General Douglas
MacArthur acting as the Supreme Commander for the Allied Powers
(SCAP). The occupation ended more than six years later in April
of 1952 when the Peace Treaty of San Francisco, which had been
signed in San Francisco by Japan and 46 other countries in September
of 1951, came into effect. In May of 1952 Japan concluded the U.S.-
Japan Security Treaty. Thus the second period of forced transfor-
mation under foreign influence came to an end. In the same month
208
Cf. P. Raisch, Geschichtliche Voraussetzungen, dogmatische Grundlagen und
Sinnwandlung des Handelsrechts [Historical Background, Dogmatic Foundations,
and the Changing Nature of Commmercial Law] at 249 et seq. (1965); K. Schmidt,
Handelsrecht [Commercial Law] at 60 (4th ed. 1994).
Japan was admitted to the International Monetary Fund (IMF) and

the World Bank. In August of 1955 it became a member of the
General Agreement on Trade and Tariffs (GATT), at first under
the Art. 14 status of the IMF. In the spring of 1964, the same year
it hosted the Olympics, Japan shifted to Art. 8 status (advanced
nation status) in GATT and later joined the Organization for Economic
Cooperation and Development (OECD) as the first Asian nation.209
The economic destruction inflicted on Japan by the war had been
severe. Real GNP per capita had declined in 1946 to 55 percent of
the 1934–36 level, and it was not until 1953 that Japan was able
to recover that pre-war level.210 However, once the Japanese dreams
of being an elite nation by divine preordination and the natural
leader of Asia were buried, the political and economic leaders focused
on rebuilding Japan with remarkable energy and decisiveness.211 From
the early fifties to the beginning of the seventies, Japan’s economy
showed an annual growth rate of nearly ten percent. As it had some
decades earlier after the Meiji Restoration, the West—at least ini-
tially—became the model again. But this time the orientation was
to a larger extent towards the victorious U.S. rather than towards
the equally devastated countries of continental Europe.
After the first postwar boom unexpectedly triggered by American
demand for Japanese exports during the Korean War,212 it was in
the mid-fifties when the high-growth period started and the so-called
“Japanese miracle” began to take shape in a series of ensuing growth
circles. Japan adopted a policy of domestic growth without depen-
dence on foreign capital, characterized by high savings and imported
technology.213 Japan did not encourage direct foreign investment, but
209
For a detailed historical overview, see, e.g., F. Fukui, Postwar Politics, 1945–1973;
Y. Kòsai, The Postwar Japanese Economy, 1945–1973, both in: The Cambridge
History of Japan, Vol. 6, The Twentieth Century, at 154–213 and at 494–537
respectively (P. Duus, ed. 1988); G. Gordon, Postwar Japan as History (1993), var-
ious contributions; with respect to economic development, see, e.g., T. Uchino, Sengo
nihon keizai-shi (197.8), published in English as: Japan’s Postwar Economy. An Insider’s
View of Its History and Its Future (1983), citations refer to the translation; T. Ito,
The Japanese Economy (1992); J. Vestal, Planning for Change: Industrial Policy
and Japanese Economic Development, 1945–1990 (1993).
210
Kòsai, supra note 209, at 494.
211
Hirschmeier & Yui, supra note 9, at 228.
212
The war started on June 25, 1950, and an armistice was reached on July 27,
1953.
213
Kòsai, supra note 209, at 508; Y. Yasuba & T. Inoki, Nihon keizai-shi, hachi-
kan, Kòdo seichò [The History of the Japanese Economy, Vol. 8, The High Growth
Period], at 22 et seq. (1989).
introduced foreign technology through technical cooperation without

capital tie-ups to avoid foreign control.214 The driving force was pri-
vate plant and equipment investment; however, the government main-
tained strict control, especially over new industries.215 By 1968, exactly
100 years after the Meiji Restoration, Japan had become the second
biggest economy in the free world after the U.S., surpassing both
Germany and France.216
Shortly thereafter the era of rapid growth ended. Japan’s mount-
ing balance of payments surplus and its undervalued currency led
to increasing foreign criticism. 1971 saw the abolishment of fixed
exchange rates and a dramatic revaluation of the yen against the
U.S. dollar with severe consequences for Japanese exports (so-called
Nixon shock). Furthermore, the first oil crisis of 1973–74 had a dev-
astating effect on Japan’s economic performance and led to a pro-
longed recession. Only some years after the second oil shock of 1979
did growth start to pick up again, in the early 1980s.
b) Policy of SCAP
The American-dominated occupation of Japan under the Supreme
Commander for the Allied Powers (SCAP) had two major objectives:
the demilitarization and democratization of Japan, The early occu-
pation policies were initially not directed to economic recovery, and
only when it became clear that democracy might not bear fruit
because of the economic crisis did a shift in policy occur.217 To
achieve these goals, SCAP initiated broad legal reforms.218 Instructions
were given to the Japanese government in the form of directives,
memoranda, or letters, whereas the Japanese authorities—who were
actually carrying out the reforms—used the form of laws or ordinances
to realize those objectives.219 Among various others, three basic
214
Kòsai, supra note 209, at 518, 520/21.
215
Uchino, supra note 209, at 91.
216
T. Nakamura, Shòwa keizai-shi [The History of the Economy in the Shòwa
Period], at 276 (1986). Uchino, supra note 209, at 157.
217
Uchino, supra note 209, at 23–24.
218
For a general overview and assessment of the legal reforms in Japan during
the Allied occupation, see A.C. Oppler, Legal Reform in Occupied Japan: A
Participant Looks Back (1976); id., The Reform of Japan’s Legal and Judicial System
Under Allied Occupation, Wash. L. Rev., Special Edition, 1–35 (1977).
219
Cf. T.F.M. Adams & I. Hoshi, A Financial History of the New Japan, at 21
(1972).
economic reforms were initiated by SCAP as a way of democratiz-

ing the Japanese economy: land reform, labor reform, and dissolu-
tion of the pre-war zaibatsu.220 We will concentrate here only on the
third point.221
SCAP put special emphasis on the zaibatsu and the dispersion of
stock holdings to individuals because a widespread ownership of secu-
rities was regarded as one of the prerequisites of diluted economic
power, which in turn was perceived as the basis for economic democ-
ratization. The concentration of ownership in the zaibatsu families
was held to be typical of the prewar economic system and instru-
mental in the militarization of Japan.222 SCAP’s concept was to
replace the central, hierarchical ownership structure of the zaibatsu,
which was based on family-owned holding companies,223 with the
American model of corporate governance in the form of “market
corporate control” where management would be monitored in a sys-
tem of widespread ownership through the market and the general
shareholders’ meeting. This was to be added by internal employee
control of management.224
The dissolution of Japan’s large industrial and financial combines
started in the fall of 1945 when the biggest four zaibatsu—Mitsui,
Mitsubishi, Sumitomo, and Yasuda—plus Fuji Industries were designated
as “holding companies”. In its attempts to limit the number of com-
panies to be affected, the Japanese government had insisted that not
the combine as a whole but rather the top holding company as the
center of a combine was to be dissolved. Between September of 1946
and September of 1947 a total of 83 holding companies with some
4,500 subsidiaries was named. But the number of combines actually
involved was less than 20. The higher figure resulted from the fact
220
K. Ishii, Nihon keizai-shi [History of the Japanese Economy], at 320 (1991);
Kòsai, supra note 209, at 495 et seq.
221
The classic study on the democratization of the economy is: E.M. Hadley,
Antitrust in Japan (1970); an earlier account can be found with T.A. Bisson, Zaibatsu
Dissolution in Japan (1954); see further H. Miyajima, The Privatization of Ex-Zaibatsu
Holding Stocks and the Emergence of Bank Centered Corporate Groups in Japan,
in: Corporate Governance in Transitional Economies. Insider Control and the Role
of Banks, at 361–404 (M. Aoki & H. Kim, eds. 1994); Takahashi, supra note 160,
at 18–22; Fukui, supra note 209, at 155 et seq.; Adams & Hoshi, supra note 219, at
23–26; Morikawa, supra note 149, at 237–239.
222
Miyajima, supra note 221, at 364–365; Òkurashò Zaisei-shi-shitsu (ed.), Shòwa
zaiseishi [History of Finance in the Shòwa Period], Vol. 2, Dokusen kinshi [Anti-
Monopoly], at 93–95 (1982).
223
See supra III.1.c).
224
Miyajima, supra note 221, at 363, 365.
that second-level holding companies (often key subsidiaries) were also

included. In March of 1947 the circle was broadened as 56 persons
from ten zaibatsu families were listed as “designated persons” and
had their assets frozen.225
In August 1946 the Holding Company Liquidation Commission (HCLC,
Mochikabu Kaisha Seiri I’inkai ) was established, as part of the Japanese
government but with a special status and under direct control of
SCAP.226 Securities held by designated holding companies or per-
sons were to be transferred to the commission, which then would
dispose of them to new owners. The former owners received com-
pensation within certain limits.227 Of the 83 holding companies, 30
were dissolved, including the four big zaibatsu. The others were reor-
ganized. In addition, the control of companies by personal ties was
ended. Members of designated zaibatsu families especially had to
resign and were prohibited from holding positions in former zaibatsu
companies.228 As a result, the empires of the zaibatsu were broken
up and the exclusive family ownership and control disappeared for
good. To prevent a future reappearance of a comparative mono-
polistic power, the Antimonopoly Law229 was enacted in 1947, as is
described in greater detail elsewhere in this volume.230 To dissolve
not only the domination of one firm over others but also market
domination by monopolistic firms, the Deconcentration Law231 was
enacted to allow the break-up of enterprises considered mono-polis-
tic. But of 325 firms designated as representing excessive concen-
tration, only 18 were finally broken up.232
225
Cf. Hadley, supra note 221, at 69–73.
226
The establishment was based on the Imperial Ordinance 233 from April 20,
1946; an English translation can be found in: The Holding Company Liquidation
Commision [HCLC] (ed.), Laws, Rules and Regulations Concerning the Reconstruction
and Democratization of the Japanese Economy, at 38 (1949).
227
The dissolution process is described in greater detail by Hadley, supra note
221, at 68 et seq., and Miyajima, supra note 221, at 368 et seq.; see also Mochikabu
Kaisha Seiri I’Inkai, Nihon zaibatsu to sono kaitai [ Japanese Zaibatsu and their
Dissolution], at 155 et seq. (1951).
228
Cf. Adams & Hoshi, supra note 219, at 24.
229
Shiteki dokusen no kinshi oyobi kòsei torihiki no kakuho ni kansuru hòritsu [Law Concerning
the Prohibition of Private Monopoly and the Maintenance of Fair Trade], Law No.
54 of 1947 as amended by Law No. 87 of 1997.
230
See Chapt. 05.8.
231
Kado keizai-ryoku shùchù haijo-hò [Law for the Elimination of Excessive Concentration
of Economic Power], Law No. 207 of 1947; an English translation can be found
with HCLC, supra note 226, at 52.
232
Cf. Adams & Hoshi, supra note 219, at 25; Kòsei Torihiki I’inkai, Dokusen
kinshi seisaku sanju-nen-shi [Thirty Years of Anti-Monopoly Policy], at 27 (1977).
The HCLC was dissolved in July 1951. During its nearly five
years of existence, it disposed of some 165 million shares with a total
value of some 9 billion yen representing more than 20 percent of
the economy’s capital. Together with securities transferred to other
agencies in connection with the liquidation of financial institutions,
etc., altogether some 40 percent of all Japanese securities were affected
by these measures.233 To avoid a collapse of the capital market and
to coordinate the activities of the different authorities involved, in
June of 1947 the Securities Coordinating Liquidation Commission (SCLC,
Yùka Shòken Shori Chòsei Kyògi-kai ) was established. Although the stock
exchanges which were closed in 1945 were only reopened in 1949,
the SCLC had managed to sell over 230 million shares when it was
dissolved in 1951.234 The securities sold by the SCLC were channeled
in two directions: first, to the employees of the corporations whose
shares were sold (ca. 30%); and second, to the general public.235
Former zaibatsu firms and members of the zaibatsu families were sub-
ject to stringent restrictions with respect to the acquisition of shares.
To support the so-called “securities democratization movement” and
to establish a fair basis for securities trading, the Securities and
Exchange Law236 was enacted in 1948 following a hapless and short-
lived precursor.
The result of all the redistribution of shares was—at least at the
beginning—the intended spread of share ownership and a significantly
increased number of individual shareholders. In 1945 there had been
1.7 million shareholders of 631 companies listed on the First Section
of the Exchange with 444 million shares. At the end of the occu-
pation in 1952, the number of shareholders had increased to 7 mil-
lion and the number of listed companies had risen to 770 with more
than five billion shares outstanding.237 The percentage of individual
ownership in listed shares climbed from 53 percent in 1946 to 69
233
Cf. Adams & Hoshi, supra note 219, at 24, 25; Miyajima, supra note 221, at
369.
234
Cf. Hadley, supra note 221, at 184 et seq.; Adams & Hoshi, supra note 219,
at 26; I. Kawai, Zaibatsu kaitai [Zaibatsu Dissolution], in: Shòken Hyakunen-shi [One
Hundred Years of Securities], at 194 (H. Arisawa, ed. 1978).
235
The process is described in detail with Miyajima, supra note 221, at 375–389;
Adams & Hoshi, supra note 219, at 43–48.
236
Cf. supra note 5.
237
Cf. C. Heftel, Corporate Governance in Japan: The Position of Shareholders
in Publicly Held Corporations, U. Hawaii L. Rev., at 142 with further references
(1983).
percent in 1950, and corporate ownership fell during the same period
from approximately 25 percent to 6 percent.238 A lasting legacy of
the occupation reforms is the modern publicly held corporation in
Japan, which replaced the family-owned zaibatsu. However, after the
end of the occupation, a new form of economic concentration began to
take shape as the dispersed share ownership shrunk again and enter-
prise groups emerged.239 As early as 1950, a gradual shift in the
ownership structure towards an institutional shareholding had begun,
caused by economic necessities, a collapsed stock market, and pol-
icy change.240 The change can be illustrated by the following table:
Distribution of Share Ownership in Japan by Types of Holders

(1950 till 1980, %)241
Types of Holders 1950 1955 1970 1980
Business Corporations 6.0 7.0 23.1 26.0

Banks and Insurances 9.0 28.5 30.9 37.9
Investment Funds 0.0 0.0 1.4 1.5
Securities Companies 13.0 7.9 1.2 1.7
Individuals 69.0 53.7 39.9 29.2
Foreigners 1.0 2.9 3.2 4.0
Government 2.0 – 0.3 0.2
This leads us to the more general question of how the corporate

landscape in postwar Japan has developed.
c) Corporate Landscape in Postwar Japan

The final triumph of the company system promoted in the early 1870s
can be seen in postwar Japan.242 In the mid-1990s more than one
238
Rounded figures, cf. Adams & Hoshi, supra note 219, at 26.
239
Heftel, supra note 237, at 142, 144; T. Kikawa, Nihon no kigyò shùdan [Corporate
Groups in Japan], at 132 et seq. (1996).
240
Cf. Miyajima, supra note 221, at 379–389; K. Suzuki, Zaibatsu kara kigyò shù-
dan e [From Zaibatsu to the Corporate Group], Tochiseido Shigaku No. 135, at
13 (1992).
241
Sources: Japan Securities Research Institute, Securities Market in Japan 1996,
at 73–75 (1996); figures for 1950 are estimates; figures for 1955 are from Miyajima,
supra note 221, at 387.
242
Cf. supra II.1.c. (1).
million stock corporations and more than one million limited liability
companies were doing business in the Japanese market.243 However,
the stock corporation, the kabushiki kaisha, has become the predominant
corporate vehicle for establishing a business in Japan.244 Without
exception, virtually every important Japanese firm has chosen this
form of incorporation. But it is not exclusively the big firms; a vast
number of small and medium-sized companies also started to use
this form in the 1960s. In 1990 less than two percent of the stock
corporations had a nominal capital of more than 100 million yen;
more than two-thirds had a capital stock of less than 10 million
yen.245 The main reason why so many small firms chose a legal form
originally tailored only for large companies seems to be the idea that
special public trust and creditworthiness is supposed to be associated
with the stock corporation.246 The result has been a large gap between
corporate law and corporate reality. The requirements of the Shòhò
are not fulfilled by the majority of stock corporations. This problem
has been intensely discussed in Japan247 and was a major cause for
repeated reforms of the Shòhò in the 1970s, 1980s, and 1990s.248
Out of the 1.2 million Japanese stock corporations, some 9,000
are classified as public companies, out of which 2,334 were listed on
the Japanese exchanges in 1997.249 Thus the vast majority of stock
243
Cf. Table 3 in the Appendix.
244
This section is based on the analysis in: H. Baum, Marktzugang und Unter-
nehmenserwerb in Japan [Market Access and Acquisitions of Companies in Japan]
57–90 (1995) with extensive further references.
245
Cf. Kawamoto, Morita & Kawaguchi, Nihon no kaisha-hò [ Japanese Corporation
Law], at 15 (1994); the requirement of a minimum paid in capital of 10 million
yen was introduced for the first time in 1990, but there was a transition time until
1995 and 1997 respectively.
246
Cf. a survey reported in A. Takeuchi, Kigyò keitai to hò [Form of the Enterprise
and Law], in: Kaisha-hò [Corporate Law] Vol. 1, at 21 (Takeuchi & Tatsuta, eds.
1972); Kawamoto, Morita & Kawaguchi, supra note 245, at 20; S. Maruyama,
Die Rechtslage in der kleinen geschlossenen AG in Japan [Legal Reality in the
Closed Stock Corporation in Japan], 39 AG at 115 (1994), denies the existence of
any rational reason at all for that choice.
247
There is a vast literature on this problem, cf., e.g., M. Tatsuta, The Risks of
Being an Ostensible Director Under Japanese Law, 8 J. Comp. Bus. & Cap. Market
L. 445–454 (1986); M. Hayakawa, Der Grundsatz der beschränkten Haftung im
japanischen Gesellschaftsrecht [The Principle of Limited Liability Under Japanese
Corporate Law], 23 Sandai Hògaku 144–173 (1989); S. Maruyama, supra note 246,
at 115.
248
Cf. infra 2.b.
249
Cf. H. Kanda, Notes on Corporate Governance in Japan, in: Comparative
Corporate Governance: State of the Art and Emerging Research, at 891 (Hopt,
Kanda, Roe, Wymeersch & Prigge, eds. 1998) with further references.
corporations are non-public firms that are privately held and which
have restricted the transferability of their shares. Accordingly, they
are regarded as closed corporations. However, even most of the pub-
lic companies are not publicly held in the American sense of the
word. About two-thirds of the outstanding shares are deposited in
the hands of so-called friendly (stable) shareholders (antei kabunushi )
who are not willing to sell them or at least not before informing the
management of the issuer.250 This kind of shareholding—often described
as relationship investment—comes in three types:
(1) a unilateral capital participation supplementing a business
relationship;
(2) a bilateral ownership relation in the form of reciprocal share-
holding (mochiai ) for the same purpose, as well as for insulating
management of the firms involved against internal interference at
the general shareholders’ meeting by mutual consideration (exchange
of blank proxies) and against external control in the form of hos-
tile takeovers; and
(3) the cross-shareholding within certain enterprise groups.251
There are at least two different types of enterprise groups (keiretsu or
kigyò shùdan).252 Vertically structured groups like Toyota or Matsushita
have a pyramid structure with a large industrial firm at the top and
cascades of mostly unilateral shareholdings in subcontractors or dis-
tributors, encompassing some 5,000 medium and smaller firms in
the case of Toyota.253 Cross-shareholding is typical for the other kind,
the horizontally structured groups. At present there are six major
and several smaller groups of this type. Three of the big ones are
centered around different banks; the three other major groups Mitsui,
Mitsubishi, and Sumitomo—are formed at the core out of former zaibatsu
companies. The re-formation began already in the 1950s after the
restrictions on mergers, acquisitions, and intercorporate sharehold-
ing had been liberalized again.254 However, the new groups have a
250
Cf. Baum, supra note 244, at 60 with further references.
251
Cf. Baum, supra note 244, at 61–62 with further references.
252
Cf. the overviews of Baum, supra note 244, at 63–71, and Takahashi, supra
note 160, at 4–18; both with extensive references to the vast literature dealing with
the enterprise groups.
253
These are only the ones with direct relationships; they themselves have in
turn a close relationship with some other 30,000 small firms.
254
Cf. Miyajima, supra note 221, at 386 et seq.; Suzuki, supra note 240, at 13.
very different structure from the zaibatsu. They are not family owned
and the former holding company (which was forbidden in the
Antimonopoly Law of 1947)255 has been functionally replaced by a
cross-shareholding structure. Although the individual percentage of
participation is small—on average less than two percent in a given
group company—the accumulated holdings of all group members
together in that company amounts to an average of more than 20
percent.256 Similar to the zaibatsu, the horizontal groups once more
represent a considerable concentration of economic power. In 1990
they held approximately one quarter of all outstanding shares of
Japanese stock corporations, and more than half of all listed com-
panies belonged to one of the six horizontal keiretsu.257 Quite con-
trary to their economic relevance, these groups are only subject to
rudimentary regulation, as a law of combines (Konzernrecht) is not
yet fully developed in Japan.258
The major reason for the establishment of the cross-shareholding
structure was the fear of hostile takeovers. These fears intensified
when Japan joined the OECD in 1964 and the wartime-like controls
on foreign trade, exchange, and especially capital movements had
to be gradually liberalized. The Japanese government feared a sell-
out of domestic industries to foreign firms. Therefore it resold shares
it had acquired during the securities crisis of the early sixties to des-
ignated Japanese companies, thus enhancing the cross-shareholding
pattern.259 As a result, there is no external market for corporate con-
trol by takeovers in Japan, and internal owner control over man-
agement is also (arguably) not intensely exercised because friendly
shareholders are typically passive owners. Within the web of cross-
shareholdings, the managers of the involved firms have de facto
become their owners. The consequences for corporate governance
255
Until the amendment of the AML in 1997, cf. F. Siegfanz, Holding-
Gesellschaften in Japan und die Teilnovellierung des Antimonopolgesetzes von 1997
[Holding Companies in Japan and the Amendment of the Antimonopoly Law in
1997], ZJapanR No. 4, 58–68 (1997).
256
257
Cf. Baum, supra note 244, at 66 with further references.
258
Cf. Takahashi, supra note 160, at 40–42; I. Kawamoto, Handels- und
Gesellschaftsrecht [Commercial and Corporate Law], in: Japanisches Handels- und
Wirtschaftsrecht [ Japanese Economic and Business Law], at 133 (H. Baum & U.
Drobnig, eds. 1994).
259
in Japanese corporations are under intense discussion,260 as is the

question of a possible change in the group structure.261 More gen-
erally, the future of the group-oriented stakeholder capitalism in
Japan as such has become increasingly disputed.262 These questions
are beyond the scope of this chapter. However, an outline of the
institutional background for discussing reform and development of
corporate law after 1945 is provided.
2. Development of Corporate Law
Corporate law has been repeatedly subject to bigger and smaller

reforms in postwar Japan. The first comprehensive amendment of
the Shòhò took place in 1950 and was still initiated by SCAP. Other
amendments of the regulations on the stock corporation occurred in
each following decade.263
a) Reform of 1950
During the first years of the occupation, the attention of SCAP was
not focused on commercial and corporate law. The far-reaching reg-
ulatory reforms in connection with the liquidation of the zaibatsu and
the deconcentration of economic power first came to a conclusion
with the promulgation of the Antimonopoly Law in 1947 and other
legislation mentioned above. Then attention was eventually turned
260
The extensive international discussion on corporate governance in Japan is
analyzed and summarized by H. Baum, Zur Diskussion über vergleichende Corporate
Governance mit Japan [Comparative Corporate Governance with Japan], 62 RabelsZ
739–786 (1998); the article contains a comprehensive bibliography of Western lit-
erature on corporate governance in Japan (pp. 779–786).
261
Cf. E. Takahashi, Changes in the Japanese Enterprise Groups?, in: Japan:
Economic Success and Legal System, at 227–236 (Baum, ed. 1997).
262
Cf. H. Baum, Emulating Japan?, in: Japan: Economic Success and Legal System,
at 1–24 (id., ed. 1997); I. Nakatani, A Design for Transforming the Japanese
Economy: J. Jap. Stud. 23 (1997) 399–417; see also infra at V.
263
We will here concentrate only on the development of corporate law; for a Western
commentary on Japanese corporate law, see, e.g., Kawamoto, supra note 258, at 47–144;
I. Kawamoto, M. Kishida, A. Morita, Y. Kawaguchi & Y. Iga, Japan, in:
International Encyclopaedia of Laws, Vol. 2, Corporations and Partnerships (K.
Geens, ed. 1994); a recent bibliography of Western materials on Japanese corporate
law can be found in H. Baum & L. Nottage, Japanese Business Law in Western
Languages: An Annotated Selective Bibliography, at 132–138 (1998).
in 1949 to a comprehensive reform of the corporate law section in

the Shòhò.264 At that time the Securities and Exchange Law of 1948
had already laid the basis for the regulation and functioning of the
capital market in accordance with the aforementioned securities
democratization movement. Not surprisingly, one of the principal
aims of the corporate law reform was to strengthen the status of the
shareholder as part of the broader democratization target.
However, unlike securities or anitimonopoly regulation, the Japanese
side in the drafting committee saw no need for such a reform of the
Shòhò and opposed the plans of SCAP.265 Nevertheless, a draft was
prepared which closely followed the model of the U.S. Uniform Stock
Transfer Act of 1909 and the Illinois Business Corporation Act of
1933. The latter was utilized not because of its specific excellence,
but rather because the SCAP officials in charge happened to come
from Chicago.266 In spite of further opposition from a reviewing body
of scholars, lawyers, etc., called the Legislative Council, the draft was
presented to the Japanese Diet and was enacted without changes in
1950.267
The amendments to the Shòhò were aimed at three targets: (1)
redistribution of corporate powers, (2) strengthening of shareholder
rights, and (3) new mechanisms for attracting capital investment.
The forced sale of shares in the wake of the zaibatsu dissolution
and other deconcentration efforts had led to a much broader spread
of share ownership. Before, major management decisions in the
zaibatsu with their closely held share structure were made by a small
number of shareholders at the general meeting, which had unlimited
power. With the new fragmentation of share ownership and the large
numbers of shareholders, this practice was no longer sustainable. To
secure corporate efficiency, the reform stipulated a transfer of author-
ity from the shareholders’ meeting to the board of directors, as was
264
An excellent analysis of that reform can be found in T. Blakemore &
M. Yazawa, Japanese Commercial Code Revisions, 2 Am. J. Comp. L. 12–24 (1953);
the following passage draws on that source; comprehensive Japanese commentaries
are H. Okazaki, Kaisetsu kaisei kaisha-hò [Explaining the Amended Corporate Law]
(1950); T. Suzuki & T. Ishii, Kaisei kaisha-hò [Explaining the Amended Corporate
Law] (1951); K. Òsumi & T. Òmori, Chikujò kaisei kaisha-hò kaisetsu [Explaining the
Amended Corporate Law Article by Article] (1951).
265
Cf. Blakemore & Yazawa, supra note 264, at 13 et seq.
266
ID. at 15; M. Nakahigashi, Shòwa nijügo-nen shòhò kaisei [The Commercial Law
Reform of 1950], 31 Chùkyò Hògaku No. 13, at 14 (1995).
267
Law No. 167.
the established practice in the U.S. Thus the general meeting no

longer had an exhaustive authority; instead, its power was limited
to matters enumerated in the law or laid down in the corporate
charter (Art. 230–2 of the revised Shòhò ).268 This change called for
a new institu-tion: a board of directors that collectively holds and
exercises corporate power and managerial functions.269 Before the
amendment, individual directors had the authority to represent the
corporation.
But the general meeting not only lost important parts of its authority,
the powers of the corporate auditors (kansayaku) were also significantly
restricted. The auditors used to hold far-reaching powers of investi-
gation and examination of the corporate affairs; after the reform
they were restricted to auditing financial statements and reporting
to the general meeting.270 The loss of powers of the auditors was
compensated with an increase of powers of individual shareholders.
In some kind of dialectical process, the shift of managerial powers
from the shareholders’ meeting to the board of directors was coun-
terbalanced by the strengthening of the position of the individual
shareholder. SCAP considered this essential for the realization of cor-
porate democracy and sufficient minority protection, but all of the
Japanese committee members vehemently opposed it as too “revo-
lutionary”. They feared—not without reason—that the change would
encourage shareholder strife and corporate blackmailing.271 However,
the “suggestions” of SCAP were followed, and among other changes
shareholder voting rights were reinforced by the abolition of voting
restrictions in the corporate charter, the introduction of cumulative
voting, enhanced inspection rights, etc. Furthermore, directors’ fiduciary
responsibilities to their corporation were articulated and their liabil-
268
Blakemore & Yazawa, supra note 264, at 16; R. Iwasaki, Sengo shòhò gakushi
shokan [Essays on the History of Commercial Law after World War II], at 32 (1996).
269
Blakemore & Yazawa, supra note 264, at 17; Kitazawa, supra note 176, at
80; Òsumi & Òmori, supra note 264, at 251.
270
Blakemore & Yazawa, supra note 264, at 17; J. Matsuda, Das neue japani-
sche Aktienrecht [The Amended Japanese Law of the Stock Corporation], 24 RabelsZ,
at 124 (1959); Kitazawa, supra note 176, at 82; Òsumi & Òmori, supra note 264,
at 315 et seq.
271
Blakemore & Yazawa, supra note 264, at 19.
272
For a later assessment of these duties and liabilities, see M. Kondo, The
Management Liability of Directors, 20 Law in Japan, 150–172 (1987); R.W. Dziubla,
Enforcing Corporate Responsibility—Japanese Corporate Directors’ Liability to Third
Parties for Failure to Supervise, 18 Law in Japan, 55–75 (1985).
ity for improper activities was made more stringent.272 To ensure

that these rights and obligations could be enforced, a derivative suit
was introduced following again the American model.273 To enhance
the property rights of the shareholders, restrictions on transferabil-
ity were abolished.
Finally, new methods of corporate finance were necessary because
the former zaibatsu system of limited capital subscription to carefully
selected investors was—or seemed to be—no longer sustainable.
Rather, new money had to be attracted from public investors in the
open market. SCAP recommended the introduction of various instru-
ments from American corporate law to facilitate the raising of cap-
ital and to provide for financial flexibility.274
What were the practical results of the reform? In spite of introducing
the American model in rewriting the Japanese corporate law, man-
agement and the newly grown number of individual shareholders were
not prepared to “embrace the democratization of corporate gover-
nance”.275 Rather, the unfamiliarity of the public with its new corporate
powers as shareholders led to voting rights abuses, and management
only reluctantly accepted their participation, which it sought to avoid
whenever possible. For sure, the occupation reforms of the securities
and corporate laws had introduced a shareholder-oriented agency model
of the corporation that “calls out for legal enforcement of the cor-
porate contract”.276 However, in practice this model bears little resem-
blance to how the Japanese firm is actually organized and monitored,
as the legally mandated corporate organs do not play a decisive role
in corporate governance in Japan.277 Although it is not possible to
go into details here, it should be noted for example that, in contrast
to the U.S. practice, outside directors are almost non-existent on
Japanese boards, and that auditors in spite of their controlling posi-
tion are in most cases not independent from management either. The
function of the general shareholders’ meeting is a mere formality,
273
Blakemore & Yazawa, supra note 264, at 20–21; H. Nakajima, Kabunushi
daihyò soshò ni okeru soshò sanka [Participation in the Derivative Suit], in: Kabunushi
daihyò soshò taikei [The System of the Derivative Suit], at 195 et seq. (H. Kobayashi
& M. Kondò, eds. 1996).
274
Blakemore & Yazawa, supra note 264, at 18–19; Nakahigashi, supra note
266, No. 1, at 156 et seq.; J. Yazawa, Shòhò kaisei [Reform of the Commercial
Code], in: Arisawa, supra note 234, at 237.
275
Heftel, supra note 237, at 143–144.
276
C. Milhaupt, A Relational Theory of Japanese Corporate Governance:
Contract, Culture, and the Rule of Law, 37 Harv. Int’l L.J., at 19 (1996).
277
id. at 19–20.
notwithstanding the fact that some basic decisions like appointing

directors and auditors are still legally assigned to the meeting. The
average regular (yearly) meeting of a listed Japanese corporation lasts
less than 30 minutes and, as a further hindrance to shareholder par-
ticipation, 90 percent of these meeting are held at the same day in
late June at the same time each year all over Japan.278
Another prominent example of the non-use of legal institutions
used to be the enforcement of shareholder rights by derivate suits.
Although this control mechanism was introduced in the 1950 reform,
during the first thirty-five years of its existence no more than approx-
imately 20 cases were litigated.279 Ex post control of management
through the courts used to be exercised sparingly in Japan.280 This
only changed somewhat after the 1993 reform of the commercial
code when the number of derivate suits rose significantly.281 However,
other non-legal monitoring mechanisms seem to have worked quite
well as a substitute for the legal ones, which at least seems to be
indicated by the success of Japanese firms—unless one tends to dis-
regard corporate governance as less important than other factors for
economic success.282
278
The working—and non-working—of the legally mandated corporate organs
is analyzed in H. Baum, Rechtsformen und Entscheidungsstrukturen in japanischen
Unternehmungen [Legal and Operational Structures of Japanese Firms], in: Banken
in Japan heute, at 111–134 (von Stein, ed. 1994); M. Hirata, Die japanische
Torishimariyaku-kai: Eine rechtliche und betriebswirtschaftliche Analyse [The Japanese
Torishimariyaku-kai: A Legal and Economic Analysis], Zeitschrift fur Betriebswirtschaft-
Ergänzungsheft 3/1996, at 1–27 (1996).
279
Cf. S. Kawashima & S. Sakurai, Shareholder Derivative Litigation in Japan:
Law, Practice, and Suggested Reforms, 33 Stan. J. Int’l L., at 17 (1997).
280
For a general description of shareholder legal activities, see M. Hayakawa,
Shareholders in Japan—Attitudes, Conduct, Legal Rights, and their Enforcement,
in: Japan: Economic Success and Legal System, at 237–249 (H. Baum, ed. 1997).
281
Cf. Kawashima & Sakurai, supra note 279, at 18; see also E. Takahashi,
Aktionärsklagen in der japanischen Rechtsprechung [Shareholder Suits and Japanese
Courts], ZJapanR No. 6, 101–107 (1998); H. Oda, Derivative Actions in Japan, in:
Current Legal Problems, at 161–190 (1995); a recent German study deals with these
questions in greater detail: cf. O. Kliesow, Aktionärsklagen in Japan [Shareholder
Suits in Japan] (2001).
282
As mentioned before, there is an extensive international discussion about how
corporate governance works in Japan, cf. Baum, supra note 260; a list of (Western)
publications which place a special interest on the relationship between corporation
law and corporate governance might include: Heftel, supra note 237, at 135–206;
H. Baum & U. Schaede, Institutional Investors and Corporate Governance in
Japanese Perspective, in: Institutional Investors and Corporate Governance, at
609–664 (T. Baums, R. Buxbaum & K. Hopt, eds. 1994); Milhaupt, supra note
276, at 3–64.
b) Further Reforms
The comprehensive reform of 1950 was not the end but rather the
beginning of a series of bigger and smaller amendments of corpo-
rate law. Most of them were triggered in some way or other either
by the attempt to reconcile corporate reality with law or to improve
corporate governance, thereby undoing parts of the changes intro-
duced in 1950.283
In 1962, rules of corporate reporting were amended.284 In 1966,
one of the reforms of SCAP was undone: once more corporations
were permitted to restrict the transfer of shares in their charter.285
This reintroduction of a “non-democratic” device to protect an incum-
bent management has to be seen in connection with the growing
fear of hostile takeovers at that time, described above.286
In 1974, another piece of the reform initiated by SCAP was up
for revision: the powers of the auditor.287 As we have seen, these had
been considerably limited in the 1950 reform when they were restricted
to auditing financial statements. Various bankruptcies which happened
without the auditor noticing the deterioration of company performance
beforehand showed deficiencies of that system. The 1974 amendment
of the Shòhò 288 tried to strengthen the powers of the auditor again
by giving him the authority to supervise the ongoing business activ-
ities of the board of directors.289 Thus he was (again) made the
“guardian of the corporate interest vis-à-vis the directors”, a role
individual shareholders were not sufficiently able to fulfill.290 The
resistance of the Japanese business structure to an adaptation of the
283
Another overview can be found with S. Maruyama, Historischer Überblick
über das Aktienrecht Japans [A Historical Overview Over the Law of the Stock
Corporation in Japan], 94 Zeitschrift für vergleichende Rechtswissenschaften, 283–291
(1995); see also Kawamoto, Kishida, Morita, Kawaguchi & Iga, supra note 263,
at 55–60; Suzuki & Takeuchi, supra note 111, at 43 et seq.; S. Morimoto, Kaisha-
hò [Corporate Law], at 47 et seq. (2nd ed. 1995).
284
Law No. 82 of 1962.
285
Law No. 83 of 1966.
286
Cf. supra text accompanying notes 251–261; M. Tatsuta, Kaisha-hò [Corporate
Law], at 206 (6th ed. 1998).
287
The reform is commentated by M. Smith, The 1974 Revision of the Commercial
Code and Related Legislation, 7 Law in Japan, 113–132 (1974); see also J. Yazawa,
K. Ueyanagi, T. Òtori, A. Takeuchi & H. Tanigawa (eds.), Chùshaku Kaisha-hò
[Corporate Law Commentary], special Vol., Shòwa yonjùkyù-nen kaisei [The Reform
of 1974] (1980).
288
Shòhò no ichibu o kaisei suru hòritsu, Law No. 21 of 1974.
289
Cf. Art. 274 Shòhò as amended.
290
Smith, supra note 287, at 121.
postwar revisions can be clearly seen. The mechanism of the derivative

suit, which was thought to counterbalance the reduction of powers
of the auditor, did not work.291 The reform was not confined to the
amendment of the Commercial Code but was accompanied by an
additional law introducing a differentiation between small, medium,
and large companies, the Shòhò tokurei-hò.292 The audit system for
small companies was not much changed, but the role of the auditor
in medium and large companies was significantly altered, and in the
latter an accountant auditor was introduced. These companies must
now be audited by independent professionals called kaikei kansa-nin
(Art. 2 Shòhò tokurei-hò ).293
In retrospect, it can be said that the 1974 reform also did not
work adequately because of a lack of qualified auditors and a lack
of independent auditors, as most used to be former employees of
the company.294 This led to another reform in 1993, when the role
of the auditor was further strengthened by an extended term and
the statutory minimum number of auditors was raised to three in
large companies that have to form some kind of supervisory board,
the kansa yakkai (Art. 18 Shòhò tokurei-hò ).295
In 1981, yet another piece of the 1950 reform came under the
scrutiny of the lawmaker: in a major revision of the Shòhò, legislators
tried—among other things—to revitalize the shareholders’ meeting as
one of the main aims of that reform.296 The deterioration of the meet-
ing to a mere formality was initiated by SCAP’s decision to shift
power from the meeting to the board.297 A second factor contributing
291
Cf. Smith, supra note 287, at 116.
292
Kabushiki kaisha no kansa to ni kansuru shòhò no tokurei ni kansuru hòritsu [Law for
Special Rules to the Commercial Code Concerning the Audit of Stock Corporations],
Law No. 22 of 1974.
293
For further details, see Smith, supra note 287; Baum, supra note 278, at 122–124;
Kawamoto, supra note 263, at 80–83; Otto, supra note 110; Tatsuta, supra note
286, at 128 et seq.; T. Seki, Kaisha-hò gairon [Overview over Coporate Law], at 335
et seq. (1994).
294
Cf. the sources cited in note 278.
295
Cf. K. Yoshimoto, 1993 Company Law Amendment on the Supervisory System
and Corporate Governance, 41 Osaka U.L. Rev., 23–31 (1994); S. Yoshita, Heisei
gonen rokunen kaisei shòhò [The 1993 and 1994 Amendments of the Commercial Code],
at 229 et seq. (1996); H. Maeda, Kaisha-hò nyùmon Introduction to Corporate Law],
at 399 et seq. (4th ed. 1995).
296
Shòhò nado no ichibu o kaisei suru hòritsu, Law No. 74 of 1981.
297
The reform and its background are analyzed by A. Takeuchi, Shareholders’
Meetings Under the Revised Commercial Code, 20 Law in Japan, 173–186 (1987);
Y. Taniguchi, Japan’s Company Law and the Promotion of Corporate Democracy—
A Futile Attempt?, 27 Colum. J. Transnat. L., 195–241 (1988).
to this trend was a typical Japanese phenomenon, the practice of

“special shareholders” or sòkaiya. These are criminals who rather suc-
cessfully have tried—and continue to do so, albeit on a somewhat
reduced level—to extort money from the company by threatening
to disrupt the meeting or to reveal negative information about the
company and its management.298
The 1981 amendment introduced among other things the duty of
directors and auditors to explain matters on the agenda of the meet-
ing (Art. 237–3 Shòhò ). Shareholders were given the right to make
proposals for the meeting to discuss (Art. 232–2 Shòhò ). Also, the
rights of minority shareholders to demand a convocation of a meet-
ing or to propose a resolution were enhanced. In summary, it was
not actually so much that substantial power was re-transferred to the
shareholders’ meeting, but the legislators instead attempted to strengthen
the meeting for those matters which are left under its control.299 With
respect to the activities of the sòkaiya, the revised code introduced a
prohibition of granting benefits to anyone in relation with the person’s
use or non-use of his or her shareholder rights (Art. 294–2 Shòhò ).
This prohibition has not wiped out the practice of the sòkaiya—many
companies still make payments to them—but it has at least reduced
their presence somewhat. With respect to the revitalization of the
meeting, the reform did not render the desired results.300 A Japanese
commentator described the various attempts to promote corporate
democracy in shareholders’ meetings of Japanese corporations as “dis-
couraging, to say the least”.301 This may be so, but again one has
to point out that the performance of Japanese corporations has (on
average) not been discouraging overall during the last four decades.302
The final reform to be mentioned here dealt directly with the dis-
crepancy described at the beginning between corporate law and cor-
porate reality.303 In 1990, an amendment of the Shòhò 304 and other
laws tried to reconcile both.305 One the one hand, the procedures
298
A good description can be found in R. Miyawaki, Sòkaiya (Unternehmenser-
presser) [Sòkaiya (Company Extortioners)], ZJapanR No. 4, 69–76 (1997).
299
Cf. Taniguchi, supra note 297, at 205.
300
Cf. the sources cited supra in note 278.
301
Taniguchi, supra note 297, at 231.
302
But cf. infra at 4.5.
303
Cf. supra text accompanying notes 245–247.
304
Law No. 64 of 1990.
305
For a good overview of the reform, see M. Hayakawa & E. Raidl-Marcure,
Japanische Gesellschaftsrechtsreform—Teilnovelle zum Aktien- und GmbH-Recht
crisis of the 1990s — some afterthoughts 399
for incorporation of a stock corporation were simplified, e.g., only

one promoter was necessary instead of seven as before. On the other
hand, a system of minimum capitalization was introduced: ten mil-
lion yen for stock corporations and three million yen for limited lia-
bility companies. Existing companies had to adapt after a grace
period. The reform of 1993 on corporate governance by facilitating
derivative actions and enhancing the power of the auditor has already
been mentioned.306 Whether the long-term goals will be achieved
remains to be seen.
In summary, one can see a strong shift from the German corporate
model towards the U.S. model during the reforms under the occupa-
tion, as was the case in other areas of economic law. However, after
each of the two receptions there has been a gradual adaptation and
revision of those models according to Japanese necessities and prac-
tice. As a result, we find today an original conception of corporate
law in Japan, with its own strengths and weaknesses.
4.5 The structural crisis of the 1990s—Some

afterthoughts307
The story told so far has been one of tremendous success. Under
difficult circumstances, Japan has managed more than once in a sur-
prisingly short span of time to accomplish necessary changes which
more often than not have been far reaching. When the economic
success of the Japanese system reached its pinnacle in 1989, Japan
had long since become a model. In comparison to the U.S., invest-
ment in Japan has been regarded as more patient and employment
as more long-term oriented. These long-term relations resulted in a
greater extent of cooperation and mutual trust, and have been shielded
against short-term market pressures by political institutions such as
more intense and paternalistic regulatory regimes. Generally, we can
observe a greater distrust towards potentially disruptive market forces.
In other words, one can (arguably) say that the economy in postwar
[Reform of Japanese Corporation Law—Amendment of Stock Corporation and Limited

Liability Company Law], 38 Recht der internationalen Wirtschaft, 282–290 (1992).
306
Cf. supra notes and text accompanying notes 281 and 295.
307
These thoughts are set out in greater detail in Baum, supra note 260 and note
262; id., Globalisation vs. Paternalistic Regulation, in: Law and Development in
East Asia, at 131–153 (Antons, ed. 2003).
Japan is more constrained by non-economic objectives than, for exam-

ple, the American economy, which is to a greater extent liberated
from collective obligations to serve others.
However, in early 1990 the overheated economy started to collapse
and a kind of “institutional fatigue”308 suddenly became visible. The
prolonged structural recession of the 1990s has been accompanied
by gigantic losses in the financial industry, record numbers of bank-
ruptcies, rising unemployment, and, last not least, by numerous scan-
dals in various sectors of business, administration, and bureaucracy.
This throws a light on severe structural deficits in the political, eco-
nomic, and legal institutions and raises questions about the viability
of the so-called “Japanese model” in a changed global environment.
The pressures of increasing globalization met a protected and over-
regulated Japanese economy not sufficiently prepared for change,
where state interference had distorted the markets (especially the
financial markets)309 and cooperation all too often had turned into
collusion.
These difficulties have called not only for political but also for
legal answers. Already some far-reaching and ongoing reforms of
Japan’s financial markets regulation have started in the mid-1990s,
which might change what Western observers have aptly called a
“regulatory cartel model of decision making”.310 Economic necessity
allowed for a re-introduction of the holding company in a major
reform of the Antimonopoly Law in 1997.311 Furthermore, stock
options were made available for management and employees in 1997
as one of the means to revitalize the Japanese economy.312 How these
basically deregulatory and market-oriented trends will affect Japanese
corporate law remains to be seen, but at least the discussion about
corporate governance has once more intensified from the late 1990s.313
In general, it might well be that we will observe yet another major
shift in regulatory policy and structure.
308
Nakatani, supra note 262, at 399.
309
A very informative, albeit journalistic, report can be found in P. Hartcher,
The Ministry: How Japan’s Most Powerful Institution Endangers World Markets
(1998).
310
C. Milhaupt & G. Miller, A Regulatory Cartel Model of Decision Making
in Japanese Finance, ZJapanR No. 4, 18–29 (1997).
311
Cf. Chapt. 5.8.
312
M. Kitamura, Sutoku opushon seido [The System of Stock Options], Jurisuto
No. 1116, 25–31 (1997).
313
Cf. T. Okushima (ed.), Kòporèto gabanansu [Corporate Governance] (1996);
Z. Shishido, Kòporèto gabanansu ni okeru kabunushi sòkai no igi [The Role of the General
Meeting for Corporate Governance], Shòji Hòmu No. 1444, 2–6 (1996); S. Morimoto,
crisis of the 1990s — some afterthoughts 401
Appendix
Table 3: Number of Registered Companies in Japan 1895–1995* †
Year gòmei kaisha gòshi kaisha kabushiki kaisha yùgen kaisha

(General (Limited (Stock (Limited Liability
Partnership) Partnership) Corporation) Company) ††
1896 344 1,667 2,585 –

1900 784 3,560 4,254 –
1905 1,627 4,546 4,426 –
1910 3,202 6,411 5,277 –
1915 4,024 10,035 8,106 –
1920 6,954 14,912 20,568 –
1925 6,743 17,751 20,736 –
1930 9,841 32,259 21,402 –
1935 17,935 52,047 24,566 –
1940 15,663 37,592 35,936 1,805
1945 9,358 21,606 46.942 18,722
1950 10,276 28,402 154,497 45,306
1955 10,147 40,058 224,032 137,756
1960 9,928 43,215 287,350 198,936
=1980 7,112 36,510 791,297 606,461
1985 6,166 33,266 887,596 723,523
1990 5,595 28,483 1,054,491 971,394
1995 5,724 26,485 1,123,034 1,219,214
Sources:
Nihon Tòkei Kyòkai [ Japan Statistical Association] (ed.), Nihon chòki tòkei sòran [Historical
Statistics of Japan] Vol. 4 (1987); Kokuzei-Shò [National Tax Administration Agency] (ed.),
Zeimu tòkei kara mita hòjin kigyò no jittai [Actual Conditions of Corporate Business from the
Perspective of the Tax Statistics], various issues; N. Takamura, Kaisha no tanjò [The Rise of
the Corporation] (1996); own calculations.
* The given figures refer to companies that have been actively conducting business and
therefore have been registered with the tax authorities. At any given time, more companies
will have been registered in the company registers as mere inactive corporate shells or so-
called “sleeping corporations”. Furthermore, there have been changes in the method of count-
ing, especially in 1949, so that the figures may not be comparable without any restrictions.
However, the relative importance of the various types can be clearly seen. For the years
between 1960 and 1980, no reliable and comparable statistics were available.
† Another form of enterprise, the kabushiki gòshi kaisha or partnership limited by shares, was
introduced in 1899 but never flourished in Japan; it was abolished in 1950. At any given
time there were never more than a maximum of some 50 companies registered using this
legal form.
†† Introduced in 1940.
Kòporèto gabanansu to shòhò kaisei [Corporate Governance and the Reform of the
Commercial Code], Jurisuto No. 1121, 63–70 (1997); M. Kitamura, Kòporèto gabanansu
ni kansuru shòhò kaisei mondai [Problems of the Reform of the Commercial Code
Regarding Corporate Governance], Shòji Hòmu No. 1477, 2–10 (1997); H. Kanda,
Kòporèto gabanansu to kaisha-hò [Corporate Governance and Corporate Law], Tòkyò
Kabushiki-kon Wakai Kaihò No. 560, 2–38 (1998).
CHAPTER FIVE
INTELLECTUAL PROPERTY AND ANTI-TRUST
Christopher Heath
5.0 Literature (general)
(without author), Chiteki zaisan hò no keifu (On the Genealogy of

Intellectual Property Law), writings in honour of Dr. Shoen Ono,
Tokyo 2002; AIPPI Japanese Group, Japanese Laws Relating to Industrial
Property, annually updated; E.V.A. de Becker, Patent, Trade Mark,
Design and Utility Model Laws of Japan, Tokyo 1949; F.K. Beier,
Gewerbefreiheit und Patentschutz, Zur Entwicklung des Patentrechts
in Deutschland im 19. Jahrhundert, in: Coing/Wilhelm (ed.), Wirt-
schaft und Kodifikation des Privatrechts in im 19. Jahrhundert, Vol.
IV, Frankfurt 1979; T. Doi, The Patent System of Japan, Patents
& Licensing June 1975, 3; Y. Fuse, Edò jidai ni okeru mukei zaisan
(Intangible Property in the Edo Period), in: Chiteki shoyùken ron-
bun (Writings in Honour of Sugibayashi), Tokyo 1985, 117;
Gareis/Werner, Patentgesetzgebung, Vol. V Berlin 1891, Vol. VI
Berlin 1895; H. Iizuka, Japanisches Industrierecht, Berlin 1926;
Japanese Patent Office, Japanese Laws Relating to Industrial Property,
Tokyo 1957; Kògyò shoyùken kenkyùjò (Industrial Property Research Institute)
(ed.), Sangyòken hòan taishò 7 nen ni kan suru shiryò (Materials on
the 1918 Draft Industrial Property Law), 3 Tokkyò Kankyù 48 [1987];
4 Tokkyo Kenkyù 44 [1987]; J. Kohler, Der Unlautere Wettbewerb,
Berlin 1914; S. Ladas, International Protection of Industrial Property,
Cambridge (Mass.) 1930; Lönholm, Die neuen japanischen Gesetze
über Patente, Handelsmarken, Muster und Gebrauchsmuster,
Yokohama 1909; T. Mikuriya, Takahashi Korekiyo ikòshù to sono
shuhen (On the Posthumous Works Edition of K. Takahashi’s Works
and Related Matters), 5 Tokkyo Kenkyù 24 [1988] T. Nagamura,
Takahashi Korekiyo tokkyo kyokuchò no ikò ni tsuite (On the
Unpublished Posthumous Works of Patent Office President Korekiyo
Takahashi), 27 Tokkyo Kenkyù 43 [1999]; 28 Tokkyo Kenkyù 57
[1999]; 29 Tokkyo Kenkyù 46; A. Osterrieth, Patent-, Muster- und
inventive activity, intellectual property 403
Marketschutzgesetze des Erdballs, Berlin 1899 et seq.; G. Rahn,

Gewerblicher Rechtsshutz, in: P. Eubel (ed.), Das japanische
Rechtssystem, Frankfurt a.M. 1979, 417; N. Suzuki/Y. Inaba, Taishò
10 nen hò shùgiin shingi no keika [1–12] (On the Records of the
Diet for the 1921 Revision of the Industrial Property System) (12
parts), 18 Tokkyo Kenkyù 61 [1994]; 19 Tokkyo Kenkyù 62 [1995];
20 Tokkyo Kenkyù 53 [1995]; 21 Tokkyo Kenkyù 87 [1996]; 22
Tokkyo Kenkyù 63 [1996]; 23 Tokkyo Kenkyù 70 [1997]; 24 Tokkyo
Kenkyù 75; 25 Tokkyo Kenkyù 57 [1998]; 26 Tokkyo Kenkyù 75
[1998]; 27 Tokkyo Kenkyù 57 [1999]; 28 Tokkyo Kenkyù 70 [1999];
29 Tokkyo Kenkyù 57 [2000]; Tokkyo Chò (Patent Office), Tokkyo
seidò 70nen shi (70 Years of History of the Patent System), Tokyo
1955; Tokkyo Chò (Patent Office), Japanese Laws Relating to Industrial
Property, Tokyo 1957; Tokkyo Chò (Patent Office), Kògyò shoyùken
seidò 100nen shi (100 Years of History of the Industrial Property
System), 3 vols., Tokyo 1985; Tokkyo Chò (Patent Office), Kògyò
shoyùken seidò kono 10nen no ayumi (Another 10 Years of the
Industrial Property System), Tokyo 1995; K. Vogt, Die japanischen
Gesetze über Patente, Gebrauchsmuster, Muster und Warenzeichen,
Yokohama 1921; A. Werner, Die Patent- Muster- und Markenschutz-
gesetze des Erdballs, Berlin 1896.
5.1 Inventive Activity, Intellectual Property and

Industrial Policy
Christopher Heath
1. Introduction
For centuries, Japan has regarded the Western world with fear and
fascination. Fear because the West’s religious zeal had finally led to
Japan’s self-inflicted isolation between 1630 and 1852. Fascination
because of the West’s technological superiority, in the 16th century
best exemplified by the importation of guns, which until that time
were unknown to the Japanese. This import of foreign technology
stirred what could be identified as one of the driving motors of
Japanese innovative activity: curiosity and the willingness to learn. Being
brought in contact with a Portuguese gun, the Japanese nobleman:
404 intellectual property and anti-trust
“Lord Tokitaka saw it and thought it was the wonder of wonders. He

did not know its name at first and the details of its use . . . Thus, one
day, Tokitaka spoke to two alien leaders through an interpreter:
‘Incapable, though I am, I should like to learn about it.’ Whereupon
the chiefs answered also through an interpreter: ‘If you wish to learn
about it, we shall teach you its mysteries.’ . . .”1
Commander Perry encountered the same curiosity when his ships
anchored in Japanese waters in 1852:
“The Japanese proved to be incredibly curious, their curiosity being
aroused by a number of things unfamiliar to them. They did not only
inspect all things in the most minute details, but also followed officers
and crew, and used every opportunity to even inspect the smallest
details of their cloths. . . . Upon visiting the ships, the Mandarins and
their following were never addressed. They looked into every corner
and every hold, looked into the muzzles of the cannons, inspected the
smaller weapons, measured the boats, visited the engine room and
never failed to keep an eye on the engineer. Yet, they do not confine
themselves to a mere inspection, yet always made notes and sketches.”2
Whether such curiosity led indeed to a high level of inventive activ-
ity in the Edo period is not quite clear. On the one side, innova-
tion was perceived as such a powerful tool for social change that in
1721 the Tokugawa regime enacted a law prohibiting technological
inventions.3 On the other hand, a number of inventions were made
in 17th century Japan:
(1) A woven ladies’ hat (1668);
(2) A knitted ladies’ hat (1697);
(3) A bag for paper towels (1625);
(4) A dye for deerskin (1684).4
While Fuse does not offer an explanation as to the obvious contra-
diction between a statute prohibiting inventions and on-going inven-
tive activity, one can only guess that the statute was enacted in order
to cement the existing social order. Inventions and inventive activ-
ity not upsetting the latter might well have been considered harmless
1
R. Tsunoda (ed.), Sources of the Japanese Tradition, New York 1960, 319.
2
Die Erschließung Japans—Erinnerungen des Admirals Perry, Hamburg 1910,
225/226.
3
Shinkihatto no ofuregaki (Prohibition of Novelties) enacted by the military Bakufu
Regime in July 1721, reprinted Tokkyo Chò (1955), 36.
4
Y. Fuse (1985), 121.
or even welcome. The interest in development of crafts such as sword

making shows that innovations were sometimes even fostered and
protected by those in power, yet of course under the condition that
the techniques were kept secret and not revealed to outsiders.
When in 1852 the American commander Perry forced Japan to
open up her country, its technological backwardness became appar-
ent. The Meiji government reacted immediately. Instead of banning
technological progress
“knowledge from all parts of the world should be acquired in order
to strengthen the foundations of imperial power”.5
In other words, innovation was still deemed an important tool of
power, but instead of trying to suppress it, it was now going to be
used actively for the purposes of industrial policy. It is important to
understand the different rational underlying the protection of inven-
tions in the West and in Japan. While in Europe and the United
States, the protection of inventions was deemed sort of an innate
right of the inventor,6 in Japan, it was foremost a means of pro-
moting economic growth.
Therefore it does not come as a surprise that in contrast to many
other civil and commercial laws, industrial property laws in Japan
were not enacted due to foreign pressure or in order to have a nego-
tiating tool against foreign nations, but were rather perceived to be
in Japan’s own interest. This is highlighted by a story reported in
the United States during the 1900 visit of Korekiyo Takahashi, the
Japanese Patent Office’s first president, to the USPTO, where he
purportedly said,
“we have looked about us to see what nations are the greatest, so that
we can be like them. We said ‘what is it that makes the United States
such a great nation?’ and we investigated and found that it was patents,
and we will have patents.”7
Thus the institutional and legal framework for the protection of
industrial property rights for the purpose of industrial development
was in place very early. The purpose was, of course, two-fold. First,
5
P. Varley, Japanese Culture 162 [1973].
6
S. Ladas (1930), 74.
7
U.S. Department of Commerce, Patent Office, The Story of the United States
Patent Office 20 [1972].
to stimulate innovative activities in Japan itself, and second to attract

foreign technology by offering comprehensive protection. Yet the
actual degree of protection remained below the threshold required
to effectively repress imitations, which early on were considered the
best way to catch up with the West.8 Even Japanese inventors were
struggling with massive amounts of infringing imitations,9 or did not
significantly benefit from their inventions.10 Enforcing intellectual
property rights against acts of infringement was thus not high on
the agenda. Also for this reason, Japan showed little enthusiasm for
enacting a law against unfair competition, something it eventually
had to do in 1934 in order to comply with the mandatory require-
ments of the Paris Convention (see the History of Japanese Unfair
Competition Law).
2. Political and Institutional Structures
The Japanese Patent Office, responsible for the processing of patent,

utility model, design and trademark applications, was founded in
1885 under the jurisdiction of the Agricultural Ministry, which later
became the Ministry of Trade (MITI). Placing the Patent Office
under the supervision of the Ministry of Trade rather than the
Ministry of Justice facilitated the industrial-development approach
that Japan had taken from the very start. The Patent Office as of
1999 had a staff of 2534 members and an annual budget of 98.7
billion Yen.11
In 1998, the Patent Office handled 401,932 applications for patents,
10,917 for utility models, 39,352 for designs and 112,469 for trade
marks. In the same year 141,448 patents, 27,097 utility models,
8
G. Rahn, Das Japanische am japanischen UWG, GRUR Int. 1992, 362.
9
The biography of the well-known kimono designer, Heizò Tatsumura, tells the
following: “Among those who had similar ideas, Heizò’s machine-made Gobelins
developed with great pains, were immediately imitated in similar fashion, and such
sharp practice caused Heizò a lot of grief. Hardened by such experiences, Heizò
decided to manufacture only textiles that no one would be able to imitate.” Cited
from: Tatsumara Heizò no sekai (The World of Heizò Tatsumura), Kyoto 1990.
10
Y. Fuse notes that the three inventors who in 1869 invented the rickshaw ( jin
rikusha) did not make any financial profit therefrom despite the fact that by 1902,
20,000 of these had been produced: Y. Fuse (1985), 120.
11
Japanese Patent Office, Annual Report 1999, 49.
36,264 designs and 132,066 trade marks were registered. More than
20,000 appeals and about 11,000 oppositions were filed.
Apart from the Patent Office, a number of other organisations
are meant to encourage the dissemination of information concern-
ing intellectual property rights. The foremost among these institu-
tions is the venerable Institute of Invention and Innovation (Hatsumei
Kyòkai) which was founded in 1904 and which promotes both inno-
vation and better understanding of industrial property rights.12 The
organisation whose honorary president, Prince Hitachi, is the brother
of the current Japanese Emperor, conducts regular competitions on
inventions, awards prices and has set up a law centre to teach the
basics of IP to non-lawyers. More recently, the organisation has set
up an Asian Intellectual Property Training Center in order to spread
knowledge about the Japanese patent system amongst other Asian
nations.13 Hatsumei Kyòkai has branches in 47 different prefectures
and is a major editor of IP-related publications.
Another organisation which collects information and conducts
research on Intellectual Property Rights is the Japanese Intellectual
Property Association (Chizaiken Kyòkai) founded in 1938.14 Two
organisations that were founded by, or at least enjoyed the support
of MITI, were the Japanese group of AIPPI in 1956 and the Institute
of Intellectual Property (IIP) in 1985.15 While AIPPI basically expresses
the opinion of the international AIPPI organisation, the IIP is seen
as a think tank for research on current topics of Industrial Property
Rights. As an academic institution, Nihon Kògyò Shoyùken Kenkyùkai
( Japan Industrial Property Association), which was established in
1981, should be mentioned.
As a professional body, the Japan Patent Attorneys’ Association
(Benrishi Kai) should be mentioned. This organisation was estab-
lished in 1915, after the profession as such developed in 1890, and
the first regulations were introduced in 1899. The idea of creating
12
Hatsumei kyokai (1974).
13
S. Tsuji, 22 Tokkyo Kenkyù 50 [1996]. The aim was to train 1000 persons
mainly from Asian countries in matters of industrial property until the year 2000,
a goal which was indeed achieved.
14
Originally named the Club of the Chrysanthemiums (Chòyòkai); in 1959
renamed the Japan Patent Association (Nihon Tokkyo Chòyòkai), and in 1994 again
renamed.
15
See Plan zur Errichtung eines Forschungsinstitutes für gewerblichen Rechtsschutz
in Japan, GRUR Int. 1984, 329.
a profession again came from the then President of the Japanese

Patent Office, Korekiyo Takahashi, who wanted to establish a sys-
tem similar to the U.S. one.16 The first firm of patent attorneys was
established in September 1890 as the “Tokkyo Daishinsha”. Specific
legislation only followed in 1899.17 In 1909, for the first time an
examination was introduced as a requirement for qualification.18 In
1899, after the promulgation of the first Patent Attorneys Act, 138
persons registered as patent attorneys. The first examinations for
patent attorneys were introduced in 1902, which only 9 of the 92
applicants passed. In 1908, the number of patent attorneys had risen
to 421. Apart from registration after examination, also employees of
the patent office could become patent attorneys (a system maintained
until 2002). Also attorneys may register and practice as patent attor-
neys. For complete statistics on the number of patent attorneys, see
below 4. Up to the change in the Patent Attorneys Act in 2000, the
pass rates of the qualifying exam were very low, and in 1999 for
the first time exceeded 200 (233). Patent attorneys are not allowed
representation in infringement suits, yet can be admitted by the
court as pleading alongside counsel. Under the new Patent Attorneys
Act 2000, they are now allowed to counsel in matters of licensing
agreements.19
All the above organisations help to give industrial property rights
a more common touch than this subject enjoys in most western
countries.
3. Legal Instruments
When compared to other legislative instruments in Japan, two facts

stand out when it comes to legislation in the field of industrial prop-
erty rights: First that foreign pressure played little or no role in the
16
Benrishikai (1982), 14.
17
By the Tokkyo Dairi Gyòsha Tòroku Kisoku, Order No. 235 of 9 June 1899.
The revised Patent Act of 1899 for the first time defined the term “agent” (dairinin)
in its provisions.
18
Order of the Ministry of Culture No. 50 of 26 October 1909, in force from
1 November 1909: Tokkyo Dairi Gyòsha Shiken Kisoku.
19
Patent Attorneys Act, Law No. 49/2000 of 26 April 2000, in force since 6
January 2001. Complete text reprinted in 53/8 Patent 44 (2000).
enactment and subsequent changes of industrial property laws, the

exception being the Unfair Competition Act of 1934. In addition,
perhaps no other field of law has seen so many changes in legisla-
tion, thus closely mirroring Japan’s dynamic industrial development:
The Japanese Patent Act, initially enacted in 1871 and repealed one
year later, came finally into force in 1885, was significantly amended
in 1888, 1899, 1909, 1921 and 1959. The current Patent Act of
1959 has undergone no fewer than 25 revisions. While often minor,
they include such important changes as allowing for the patenting
of pharmaceutical substances, allowing multiple claims, allowing the
patenting of microorganisms, paving the way for broadening the
scope of patents and increasing damage awards in cases of infringe-
ment. No less important are the publication of examination guide-
lines for specific fields, e.g., computer software and biotechnological
inventions. Already in 1905, Japan had taken the bold step of intro-
ducing the German-based system of protecting utility models as a
form of minor invention, a system particularly suitable to Japan’s
small and medium sized enterprises. Distinct from other statutory
instruments, no clear preferences for a certain foreign legal system
can be detected. While the initial patent statute was based on U.S.
law, the revisions of 1921 and 1959 marked a major shift towards
the German patent system, while the latest examination guidelines
are often the result of bilateral consultations between the European,
U.S. and Japanese Patent Offices. International cooperation in this
field is facilitated and spurred by Japan’s membership to the Patent
Cooperation Treaty (since 1 October 1978).
The Trade Mark and Design Acts, amended almost as often as
the Patent Act, betray stronger influences of the British system, in
particular by adopting a system of substantively examined designs
and introducing the possibility of filing defensive marks (now defunct).
In addition, the influence of international treaties in these fields
appears stronger. In the last century, Japan subsequently joined the
Madrid Agreement on the Suppression of False and Misleading
Goods, the Trademark Law Treaty and the Nice Agreement on the
Classification of Marks.
While becoming a member to the Paris Convention in 1900 affected
all industrial property laws, the 1994 TRIPs Agreement required
only minor revisions of the Japanese IP system.
4. International Agreements
Japan is a member to the following international agreements on

industrial property:
– WIPO Treaty: 20 April 1975;
– Paris Convention for the Protection of Industrial Property: 15 July
1899, Stockholm version as of 1 October 1975;
– WTO/TRIPs Agreement: 1 January 1995;
– Madrid Arrangement for the Repression of False or Deceptive
Indications of Source on Goods: 8 July 1953, Lisbon version as
of 21 August 1965, Stockholm additions as of 24 April 1975;
– Trade Mark Law Treaty: 1 April 1997;
– Protocol Relating to the Madrid Agreement Concerning the Inter-
national Registration of Marks: 14 March 2000;
– Nice Arrangement Concerning the International Classification of
Goods and Services for Registration of Marks: 20 February 1990;
– Strasbourg Arrangement Concerning the International Patent
Classification: 18 August 1977;
– International Convention for the Protection of New Varieties of
Plants (UPOV): 13 September 1982 (1978 version); 24 December
1998 (1991 version);
– Patent Cooperation Treaty: 1 October 1978;
– Budapest Treaty on the International Recognition of the Deposit
of Microorganisms for the Purposes of Patent Procedure: 19 August
1980.
The following agreements relate to copyright law:
– Berne Convention for the Protection of Literary and Artistic Works:
15 July 1899, Paris version as of 24 April 1975;
– Universal Copyright Convention: 28 April 1956, 1971 version as
of 21 October 1977
– International Convention for the Protection of Performers, Producers
of Phonograms and Broadcasting Organisations (Rome Convention):
26 October 1989;
– Agreement on the Protection of Phonogram Producers Against
Reproduction: 14 October 1978;
– WIPO Copyright Treaty: 6 March 2002.
5. Industrial Policy in the Last Decade
Particularly since about 1995, efforts have been made to strengthen

Japan’s capacity in basic research and to improve the commercial
exploitation of basic inventions. Two developments in this respect
are noteworthy.
a) Better exploitation of university inventions. In 1998, an Act on
the Promotion of University Inventions was promulgated.20
The structure of the law is unusual because in contrast to normal
Japanese practice, it stipulates the concurrent jurisdiction of two min-
istries, the Ministry of Culture and the Ministry of Trade. There is
a traditional rivalry between these two Ministries regarding issues of
future technology such as software, multimedia and, in this case, uni-
versity research. This may well affect the actual implementation of the
law in practice, yet not much can be said about this at that stage.
The approach of the law is not inelegant. In particular, it does
not touch upon any contentious ownership issues that would require
either a change or an explicit reinterpretation of Sec. 35 Patent Act.
Rather, it relies on financial stimulation for marketing.
The main purpose of the law is to subsidise independent tech-
nology transfer centres. Owing to the fact that federal and state uni-
versities are not allowed to engage in commercial activities, in the
case of these universities (the most likely to come up with any inven-
tions in the first place), a private enterprise would be necessary.
Subsidies are available in the form of financial guarantees in cases
where shares are issued. The issue of shares, and thus the incorpo-
ration as a share company, gives the centre a more flexible struc-
ture than a limited company, as the first can issue new shares with
greater facility. While professors at federal and state universities may
become shareholders, they are not allowed to engage in the man-
agement of private companies. This may, however, be circumvented
by employing professors as “advisors”, in particular where their own
inventions are to be commercialised. One of the parameters for suc-
cess or failure of the transfer centres will be the flow of informa-
tion, and another the professional management of the centre. Both
are, however, beyond the framework of legal rules.
20
Act for the Promotion of Use of University Inventions by Private Enterprise,
Law No. 52/1998 as of 6 May.
Current Structure and Organisation of Technology Transfer Centres in Japan21
Name University Day of Operational Form of Membership/

affiliation foundation since organisation Funds
Casti University 3 Aug. 1998 Dec. 1998 Stock Membership

of Tokyo corporation system
Kansai Kyoto 30 Oct. 1998 Dec. 1998 Stock Membership/
Technology University, corporation Membership
Liaison Ritsumeikan (regional
Office University affiliation)
(Kansai)
Tòhoku Tòhoku 5 Nov. 1998 Dec. 1998 Stock Membership/
Techno University/ corporation regional
Arch region of affiliation
Tohoku
Gakkò hòjin Nihon 15 Nov. 1998 Dec. 1998 University Membership
Nihon University department system
University
(NUBIC)
Gakkò hòjin Waseda 1 June 1996 April 1999 University Funds available
Waseda University department
University (in
connection
with an
external office)
Tsukuba Tsukuba 20 May 1997 April 1999 Stock Membership
Liaison University corporation system
Kenkyùjò
Rikògaku Tokyo 6 Sept. 1946 Aug. 1999 Incorporated Membership by
Shinkòkai Technical foundation incorporated
University companies
Gakkò hòjin Keio Private 1 Nov. 1998 Aug. 1999 University No member-
Keio University department ship system/
Juku University No specific
funds
Yamaguchi Yamaguchi 1 Nov. 1999 Dec. 1999 Limited Membership
TLO University company system
(Technology
Licensing
Office)
Hokkaidò Hokkaidò 6 Dec. 1999 Dec. 1999 Stock Membership
TLO University/ corporation system based
region on regional
Hokkaidò affiliation
The above table gives an overview of the currently existing tech-

nology transfer centres (as of May 2000).
21
211 Tokugikon 6.
Under the 1998 Act, government assists the technology transfer

centres to a significant extent. The current system envisages a sub-
sidy of 60% of the centre’s operating costs (excluding costs related
to the application of patents) paid by the state. Most of the centres
seem to operate with an annual budget of 5 million Yen, 3 million
of which is paid by government, 2 million by the university. In addi-
tion, government dispatches one senior officer, normally from the
Patent Office, to assist a centre. This is, of course, financially attrac-
tive to the centres, yet serves the well known function of govern-
mental bureaucracy to control private industry.
The above subsidies will be paid for five years initially. There is
a good chance that this financial lifeline will be extended.
The difference in the organisational structure (share companies
versus government departments) can be partly explained by the fact
that public universities are not allowed to engage in commercial
activities, while private universities have less problems in that respect.
For that reason, the three universities that set up the technology
transfer centres as university departments are all private universities
(Nihon University, Waseda University, and Keio University).
In some cases, the technology transfer offices are not strictly
affiliated with a certain university, but may rather serve all univer-
sities within a certain region. This is the case for the Kansai Centre,
the Tòhoku Centre and the Hokaidò Centre. In these cases, public
universities, state universities as well as private universities are enti-
tled to use the services of the centre, the only condition being that
they find themselves in the region of the centre’s operation.
The form of operation and the purposes also determine the ques-
tions of membership. The membership structure shall ensure that
the purposes of commercialisation are best achieved. There are thus
three categories of members. Individual researchers of universities,
universities and private companies. In the case of the Kansai Centre,
the membership structure comprises 27 universities, 434 individual
researchers and 107 private companies.
b) The Basic Intellectual Property Act

In 2002, the Japanese legislature enacted the Intellectual Property
Basic Act 2002.22 The Act has no precedent in other countries, and
22
Law No. 122/2002 of 4 December 2002, in force since 1 March 2003.
tries to identify the general political goals of an intellectual property

system in a country that always had to rely on man-made achieve-
ments in the absence of natural resources. The basic purposes of the
Act are intensifying the international competitiveness of Japanese
industry, proper protection and exploitation of intellectual property,
and establishment of an intellectual property policy headquarters
within the Prime Minister’s office (Sec. 1). The creation of intellec-
tual property is to be stimulated within universities and business
enterprises by, inter alia, ensuring proper treatment of inventors and
researchers, creating an attractive and suitable working environment,
and guaranteeing the independence of researchers (Secs. 7, 8).23 The
exploitation of intellectual property rights shall be strengthened by
technology transfer centres at universities, and by an increased coop-
eration between the state, local governments, universities and busi-
ness enterprises (Secs. 10, 13). Both the grant and enforcement
procedures for intellectual property rights are to be streamlined and
strengthened. Effective remedies shall be available against all acts of
infringement (Secs. 14–16). The Japanese government is furthermore
called upon to engage in political discussions with foreign nations
that fail to properly protect the intellectual property rights of Japanese
enterprises (Sec. 17). It shall become easier to set up start-up com-
panies and to find ways of evaluating intellectual property (presum-
ably to obtain better financing) (Sec. 19). Knowledge of the system
of intellectual property protection shall be increased (Sec. 21). The
intellectual property policy headquarters shall formulate basic poli-
cies to achieve the above-mentioned goals, and shall be headed by
the Prime Minister.
Finally, the public policy prospective of intellectual property rights
is stressed by the most important provision of Sec. 10:
“In promoting measures for the creation, protection and exploitation
of intellectual property, attention shall be paid to public interests and
the fair use of intellectual property, and to promote free and fair
competition.”
23
The Act falls short of advocating proper remuneration for employed inventors,
which at the moment is a very contentious issue in Japan, at least since a 1999
decision held that company guidelines providing for a usually low remuneration
have no binding effect and are overruled by Sec. 35 Patent Act that requires remu-
neration in accordance with the success of an invention: Tokyo District Court, 16
April 1999, AIPPI Japan International Edition 1999, 255—“Olympus Pickup
Apparatus”; upheld by Tokyo High Court, 22 May 2001, unreported.
Of course it remains to be seen how these policies will be imple-

mented and results will presumably take some time to materialise.
Yet if the creation of intellectual property rights is anything to go
by, Japan has been remarkably successful in setting up out of noth-
ing an intellectual property system that by now can be considered
one of the world’s most dynamic.
6. Statistics
Number of Registered Patent Attorneys between 1899 and 1999
Year Number of Patent Attorneys* Newly Registered Attorneys
1899 138 138

1900 171 34
1901 184 13
1902 221 39
1903 250 31
1904 272 27
1905 296 26
1906 332 39
1907 372 46
1908 407 42
1909 460 59
1910 520 69
1911 573 57
1912 620 55
1913 687 75
1914 763 80
1915 830 75
1916 903 84
1917 987 93
1918 1,048 73
1919 1,124 86
1920 1,204 86
1921 1,350 158
1922 1,477 753 158
1923 1,657 872 204
1924 1,790 904 154
1925 1,935 1,024 161
1926 2,076 1,078 148
1927 2,181 1,153 146
1928 2,321 1,182 159
1929 2,459 1,277 161
1930 2,666 1,302 237
1931 2,888 1,376 249
1932 3,092 1,423 222
1933 3,318 1,461 260
table (cont.)
1934 3,557 1,525 258

1935 3,836 1,624 301
1936 4,113 1,681 312
1937 4,389 1,819 319
1938 2,604 261
1939 2,672 180
1940 2,693 115
1941 2,683 76
1942 2,594 44
1943 2,081 29
1944 1,828 15
1945 1,690 3
1946 1,289 61
1947 1,238 67
1948 1,178 51
1949 1,029 47
1950 1,026 43
1951 929 35
1952 936 42
1953 926 32
1954 931 38
1955 940 50
1956 965 49
1957 983 53
1958 1,014 51
1959 1,070 82
1960 1,089 83
1961 1,122 64
1962 1,155 62
1963 1,223 102
1964 1,297 107
1965 1,348 90
1966 1,425 105
1967 1,536 150
1968 1,598 89
1969 1,687 123
1970 1,763 101
1971 1,821 92
1972 1,927 137
1973 2,037 147
1974 2,112 113
1975 2,200 132
1976 2,293 143
1977 2,370 127
1978 2,410 110
1979 2,476 121
1980 2,536 118
1981 2,586 114
table (cont.)
1982 2,653 118

1983 2,733 144
1984 2,815 122
1985 2,900 141
1986 2,947 120
1987 3,048 155
1988 3,131 138
1989 3,224 144
1990 3,342 174
1991 3,436 145
1992 3,529 150
1993 3,634 162
1994 3,704 136
1995 3,795 153
1996 3,916 172
1997 4,011 172
1998 4,102 182
1999 4,278 233
* The Patent Attorneys Act 1922 made membership in the Patent Attorneys Association
a prerequisite for practising. The numbers in italics are the number of patent attorneys
actually allowed to practice, while the larger number reflects those persons registered as
patent attorneys. From 1938 onwards, membership in the Patent Attorneys Association
became compulsory with the consequence that those who did not qualify for member-
ship became disbarred.
Source: Benrishi seido 100 nen shi bessatsu 256–259
Applications and Grants

1884–2000
Year Patents Utility Models Designs Trade Marks
applications grants applications grants applications grants applications grants
1884 883 –
1885 425 99 1,296 949
1886 1,384 205 607 508
1887 906 109 716 361
1888 778 183 568 436
1889 1,064 209 176 22 1,029 664
1890 1,180 240 497 82 819 583
1891 1,288 367 290 117 798 554
1892 1,344 379 262 48 1,046 588
1893 1,337 318 250 59 1,143 648
1894 1,250 326 236 64 1,350 877
1895 1,122 228 318 94 1,373 923
1896 1,213 169 300 96 1,578 858
317 (–)
1897 1,542 188 320 60 3,228 2,335
60 (–) 12 1 1,639 (–)
table (cont.)
1898 1,789 293 265 52 2,232 1,597

168 17 1 (–) 490 (–)
1899 1,515 297 342 139 2,837 1,942
223 99 1 10 346 261
1900 2,006 586 397 130 2,766 1,767
239 130 1 44 282 192
1901 2,397 606 514 141 2,608 1,620
255 132 (–) (–) 177 153
1902 3,095 871 730 252 3,529 2,016
314 203 1 (–) 130 75
1903 3,253 1,204 1,181 362 3,743 2,234
330 304 8 3 316 165
1904 2,618 1,253 1,378 562 3,105 1,923
344 372 1 1 322 304
1905 2,897 1,254 2,011 985 1,562 765 3,810 2,492
557 539 1 1 (–) 1 291 299
1906 4,509 1,644 7,952 3,345 1,532 666 5,765 3,380
721 487 3 2 3 (–) 608 460
1907 4,754 2,042 8,862 3,440 1,438 677 5,954 3,323
779 648 5 5 26 1 773 600
1908 5,393 2,055 11,578 3,944 1,623 628 5,790 3,413
667 658 8 2 9 (–) 704 701
1909 6,210 1,868 14,057 4,358 1,718 563 7,509 3,583
755 535 15 7 3 1 733 563
1910 5,964 1,769 12,545 3,302 2,240 609 8,286 5,086
889 529 7 2 8 1 663 413
1911 6,205 2,272 13,089 3,866 2,254 886 9,820 6,190
800 753 13 8 32 31 739 755
1912 7,168 1,774 14,809 3,081 2,420 845 11,909 6,537
839 600 25 9 10 40 865 734
1913 7,359 2,021 19,890 3,986 3,103 1,207 11,679 6,251
930 598 22 11 50 3 878 598
1914 6,490 1,824 17,147 3,919 3,868 2,037 11,323 7,236
707 540 13 9 30 16 882 590
1915 6,359 1,782 15,738 4,200 3,662 1,663 13,214 6,912
471 314 19 5 13 1 583 465
1916 6,383 1,797 14,195 3,749 3,109 1,479 14,074 6,779
651 346 20 4 13 5 689 382
1917 6,483 1,448 13,618 2,725 2,763 867 16,482 6,904
918 359 23 2 31 1 1,200 527
1918 7,383 1,653 14,045 2,737 2,673 1,169 19,561 8,991
1,109 477 11 6 11 2 842 674
1919 9,883 2,015 18,543 3,584 3,011 1,421 26,092 11,564
1,467 615 16 8 15 3 1,426 747
1920 11,017 2,161 19,717 3,942 2,776 1,307 24,865 13,143
2,564 709 45 2 21 6 1,794 1,389
1921 12,026 3,593 27,038 7,256 2,785 1,437 36,809 15,746
1,769 1,463 51 22 14 5 1,456 1,268
1922 9,886 3,004 22,315 5,098 2,837 1,416 21,822 9,182
(–) 1,240 (–) 12 (–) 6 (–) 622
1923 7,969 2,131 17,867 4,476 2,524 795 14,904 5,800
1,297 656 29 18 11 6 914 391
table (cont.)
1924 9,894 1,928 22,563 3,393 3,780 1,872 19,765 5,164

1,746 546 49 5 21 10 1,481 516
1925 12,680 5,086 27,699 11,701 5,232 3,049 20,941 12,699
1,838 1,498 86 37 32 7 1,354 1,410
1926 12,495 3,520 27,467 7,619 7,354 3,774 21,726 27,505
1,878 1,022 72 45 77 27 1,237 1,338
1927 12,607 4,371 27,675 9,386 9,181 4,691 19,696 27,687
2,323 1,211 100 50 19 21 1,428 948
1928 13,059 4,704 29,579 12,281 8,221 4,366 19,716 31,143
2,702 1,433 315 108 14 9 1,426 1,076
1929 14,296 5,090 33,111 12,060 9,643 5,308 23,022 32,589
2,968 1,630 341 130 27 13 1,462 941
1930 15,430 4,976 38,487 12,236 12,038 6,014 22,435 34,233
2,862 1,610 382 119 32 19 1,332 1,091
1931 15,183 4,318 38,296 12,080 9,987 4,819 22,420 33,098
2,312 1,320 408 163 36 18 1,132 928
1932 13,878 4,846 33,981 11,988 9,195 4,567 21,529 31,977
1,702 1,309 422 206 23 20 881 703
1933 13,904 5,502 32,843 15,940 9,427 4,057 24,042 12,630
1,794 1,196 341 260 39 13 1,056 763
1934 14,722 4,673 34,939 14,250 9,611 4,052 26,286 13,328
1,900 930 382 272 45 26 802 753
1935 16,645 4,766 40,988 14,240 12,364 5,474 29,661 14,020
1,887 950 408 226 70 40 749 564
1936 18,511 4,836 44,632 15,670 14,626 5,662 30,113 15,140
2,379 842 422 274 58 33 748 525
1937 17,381 4,615 38,583 13,950 10,152 4,464 27,459 14,972
2,609 890 473 264 50 17 913 627
1938 18,211 4,843 35,424 14,530 7,259 4,301 28,243 16,810
2,419 941 376 263 58 24 671 684
1939 18,349 5,913 30,105 16,535 5,221 3,420 26,461 19,298
2,392 1,172 417 310 70 38 740 702
1940 19,827 6,716 31,833 15,703 4,315 2,567 23,490 16,687
1,902 1,453 410 357 17 28 626 646
1941 19,997 6,686 33,417 17,407 3,956 2,399 18,161 14,124
1,499 1,183 391 309 (–) 12 390 512
1942 16,359 7,977 25,993 14,696 2,179 1,759 9,445 8,819
599 650 117 115 (–) (–) (–) 121
1943 17,108 6,382 24,259 12,506 1,231 876 6,046 5,687
(–) (–) (–) (–) (–) (–) (–) (–)
1944 12,578 8,336 13,587 13,558 ▲ 223 8,319 3,419
(–) (–) (–) (–) (▲) (–) (–) (–)
1945 4,258 2,340 4,427 1,076 ▲ 2 2,401 643
(–) (–) (–) (–) (▲) (–) (–) (–)
1946 8,136 2,404 12,554 2,968 339 – 13,835 5,067
1 70 9 34 (–) (–) 45 33
1947 9,260 1,056 14,042 1,578 1,907 730 15,677 4,212
10 17 (–) 1 1 (–) 31 14
1948 11,582 1,885 18,195 2,332 2,553 1,114 20,501 4,551
102 (–) 9 (–) (–) (–) 133 (–)
1949 14,266 3,940 22,426 6,365 4,787 1,915 25,044 8,066
888 36 24 30 22 11 1,000 22
table (cont.)
1950 16,896 4,272 24,324 8,021 6,507 3,676 29,841 16,465

2,360 137 46 (–) 53 12 1,240 473
1951 17,764 6,269 23,863 11,613 6,329 4,152 26,715 14,328
3,073 952 75 82 70 33 1,470 584
1952 20,877 5,486 34,998 10,411 8,431 4,256 32,558 15,156
2,642 1,136 152 80 90 59 1,432 1,056
1953 24,575 5,806 39,961 10,200 10,123 5,302 34,573 20,754
4,033 1,179 219 60 84 41 1,874 1,517
1954 29,369 7,070 47,665 13,108 12,412 6,610 31,986 23,460
5,803 1,551 389 87 152 57 2,031 1,730
1955 34,508 8,557 60,933 15,918 14,195 7,157 36,357 20,453
7,186 2,147 831 149 131 84 2,599 1,766
1956 33,245 9,430 63,925 17,807 17,230 8,137 39,027 22,292
5,879 3,149 783 422 246 151 1,976 2,175
1957 33,188 9,813 58,756 14,244 18,747 11,399 36,573 21,589
6,817 3,527 1,120 468 130 93 2,086 1,803
1958 38,518 9,972 70,719 16,479 27,124 13,890 37,858 23,768
7,896 3,358 1,145 519 176 120 2,016 1,825
1959 41,537 10,278 68,102 18,208 26,368 14,109 38,230 18,156
9,613 3,346 997 659 329 87 2,008 1,245
1960 43,484 11,252 63,077 22,102 24,536 15,883 39,089 20,516
11,587 3,576 1,069 708 440 223 2,712 1,282
1961 48,417 20,946 65,685 34,234 23,462 11,931 37,458 20,119
13,659 7,376 1,383 864 347 175 3,138 1,415
1962 60,127 15,703 81,858 29,016 28,283 17,346 43,985 23,763
16,101 5,070 1,264 652 309 183 3,642 2,005
1963 71,790 23,303 99,627 26,555 33,871 14,427 56,776 31,874
17,914 8,366 1,424 544 337 197 3,941 2,959
1964 74,980 23,700 102,995 28,844 36,210 14,441 59,950 31,397
19,424 8,597 1,712 673 476 118 4,098 2,648
1965 81,923 26,905 108,553 35,040 37,262 13,654 62,123 31,217
21,127 9,108 2,118 725 647 135 5,027 2,814
1966 86,046 26,315 119,061 29,621 39,942 13,941 75,685 35,393
23,084 8,942 3,071 893 585 236 4,544 3,136
1967 85,364 20,773 111,060 21,322 37,970 15,387 82,348 39,122
23,643 6,896 1,906 721 608 205 4,845 3,002
1968 96,710 27,972 114,785 22,337 39,380 16,855 94,243 38,363
25,596 9,396 2,033 722 760 231 6,423 2,607
1969 105,586 27,657 124,170 29,264 42,223 20,927 115,811 42,362
28,454 8,862 2,463 817 951 288 6,848 2,743
1970 130,831 30,879 142,066 27,718 46,860 21,785 139,414 49,098
30,309 9,488 2,369 741 967 297 8,991 3,092
1971 105,785 36,447 122,843 31,329 48,446 22,878 142,518 64,621
27,360 11,652 1,942 875 898 370 9,632 3,951
1972 130,400 41,454 148,610 38,416 54,984 22,041 183,495 63,151
29,072 12,353 1,975 837 1,026 393 12,751 3,355
1973 144,814 42,328 147,914 35,707 47,798 22,035 200,133 71,888
29,593 11,391 1,978 691 1,005 380 16,021 3,789
1974 149,319 39,626 157,591 40,710 45,387 22,747 167,265 90,502
27,810 8,753 1,910 709 902 376 13,586 3,856
1975 159,821 46,728 180,660 48,406 52,250 34,829 155,469 109,166
24,703 9,736 1,668 957 843 700 11,892 5,010
table (cont.)
1976 161,016 40,317 178,842 41,502 51,904 30,074 124,362 95,945

25,254 7,852 1,456 776 934 569 11,162 5,124
1977 161,006 52,608 179,702 54,804 53,143 39,162 130,218 113,162
25,015 9,561 1,495 812 957 748 11,533 7,255
1978 166,092 45,504 183,731 57,702 56,160 34,521 121,901 88,852
24,575 7,856 1,453 744 963 803 10,572 5,294
1979 174,569 44,104 185,455 44,600 56,263 37,215 118,235 52,291
23,946 9,241 1,133 766 986 736 11,193 3,945
1980 191,020 46,106 197,785 50,001 55,631 31,289 127,151 65,739
25,290 8,074 1,397 533 1,057 593 11,866 5,280
1981 218,261 50,904 198,979 50,900 59,301 30,791 134,251 68,314
26,616 8,824 1,316 510 1,020 524 12,192 4,374
1982 237,513 50,601 202,706 55,304 59,390 33,499 139,198 86,125
26,616 8,378 1,348 553 1,071 523 13,184 6,352
1983 254,956 54,701 205,243 55,000 57,618 32,237 150,318 113,245
27,213 9,123 1,259 534 1,303 729 14,273 9,125
1984 284,767 61,800 202,181 57,800 54,683 31,191 161,882 116,636
1985 302,995 50,100 204,815 41,100 55,237 35,890 161,546 119,534
1986 320,089 59,900 204,210 42,700 52,636 34,103 168,890 118,475
1987 341,095 62,400 201,614 47,800 54,017 36,614 175,861 117,075
1988 339,399 55,300 171,674 42,300 51,936 35,441 172,813 119,287
1989 351,207 63,301 153,302 47,100 48,596 32,250 172,780 119,301
1990 367,590 59,401 138,294 43,300 44,290 33,773 171,726 116,714
1991 369,396 36,100 114,687 36,500 40,134 28,854 167,906 95,329
33,463 5,647 1,347 357 1,648 979 18,743 8,098
1992 371,894 92,100 94,601 65,200 39,170 38,004 311,011 156,040
33,875 13,101 1,284 556 1,492 1,385 22,654 14,568
1993 366,486 88,400 77,101 53,400 40,759 38,708 174,585 166,697
34,141 11,089 1,182 371 1,571 1,267 19,811 13,456
1994 353,301 82,400 17,531 53,885 40,534 34,948 172,859 147,191
33,363 9,643 1,032 799 1,815 1,349 20,151 11,289
1995 369,215 109,100 14,886 63,966 40,067 34,887 179,689 144,911
34,603 14,296 1,201 1,472 1,810 1,325 22,899 8,028
1996 376,615 215,100 14,082 95,481 40,192 35,495 188,160 178,251
36,514 25,419 1,254 964 1,736 1,494 24,642 12,707
1997 391,572 147,686 12,048 50,108 39,865 37,418 133,116 253,272
40,765 17,749 1,331 467 2,099 1,574 18,727 31,442
1998 401,932 141,448 10,917 35,513 39,352 36,264 112,469 132,066
42,551 15,744 1,248 262 2,012 1,382 15,624 17,171
1999 405,655 150,059 10,283 13,933 37,368 41,355 121,861 123,656
45,475 16,099 1,330 134 2,133 2,038 17,609 17,620
2000 436,865 125,880 9,587 5,372 38,496 40,037 145,668 94,369
49,501 13,611 1,690 122 2,426 2,098 21,307 14,907
Numbers in italics indicate applications by or grants to foreigners.

(–) = none
▲ = Filings not allowed due to the war.
Literature:
(unless contained in the general list of literature or under I. above)
Benrishikai (Patent Attorney’s Association), Benrishi seidò 80 nen shi
(80 Years of the System of Patent Attorneys), Tokyo 1982; Hatsumei
kyokai (Inventors Association), Hatsumeikyokai 70 nen shi (70 Years
History of the Inventors Association), Tokyo 1974; Kògyò shoyùken ken-
shùchò (Industrial Property Research Office), Takahashi Korekiyo ikò
[1–3] (On the Works of the Late Korekiyo Takahashi), 27 Tokkyo
Kenkyù 43 [1999]; 28 Tokkyo Kenkyù 59 [1999], 29 Tokkyo Kenkyù
46 [2000; Kògyò shoyùken kenshùchò (Industrial Property Research Office),
Sangyoken hòan Taishò 7 nen ni kann suru shiryò (On the Proposal
for an Industrial Property Law 1918), 3 Tokkyo Kenkyù 48 [1987];
4 Tokkyo Kenkyù 44 [1987]; T. Mikuriya, Takahashi Korekiyo
ikòshù to sono shuhen (About the Unpublished Works of the Late
Korekiyo Takahashi) 5 Tokkyo Kenkyù 24 [1988]; H. Odagiri/A.
Goto, The Japanese System of Innovation, in: R. Nelson (ed.),
National Innovation Systems—A Comparative Analysis, Oxford 1993,
76–214; Nihon Tokkyo Kyokai ( Japan Patent Association), 50 nen shi
(Fifty Years of History), Tokyo 1989; G. Rahn, The Role of Industrial
Property in Economic Development: The Japanese Experience, 14
International Review of Industrial Property and Copyright Law (IIC)
449 [1983].
patent law 423
5.2 Patent Law
Christopher Heath
1. The Summary Rules of Monopoly 1871
It is quite remarkable that the first import of legislation into Japan

after the Meiji Restoration 1868 concerned patent law. The Summary
rules of Monopoly1 contained 19 provisions and started with the
phrase:
“Whoever has made a new invention will be granted a monopoly
regardless of the manner of the invented objects. Anyone in the province
who makes a request for the grant of a monopoly will be treated
according to the following provisions. Thereupon, the provincial author-
ities shall request instructions from the Ministry of Civil Affairs.”
The rules were supplemented by Edict No. 105 of March 1872.
No patents were ever granted under the above rules, presumably
due to the fact that the procedure of grant was unclear and the con-
cept of monopolistic rights for new inventions too uncommon to
receive wide retention. The summary rules and the Edict No. 5 were
formally repealed as of 18 April 1885 when the first Japanese Patent
Act came into force.
2. The Japanese Patent Act 1885
The second attempt to introduce patent legislation in Japan came

with the 1885 Patent Act that became the first patent legislation to
be actually operative in Japan. The Act had the following charac-
teristic features.
(1) The Ministry of Agriculture and Trade became responsible for
issuing patents.
(2) Grant of a patent monopoly (still called “privilege”) was dis-
cretionary under Sec. 1 (grant of “special permissions for exclusive
sale where appropriate”).
1
Senbai ryaku kisoku, Ordinance No. 175 of 7 April 1871.
(3) The applicant had to furnish an exact description and draw-

ings of the invention, Sec. 2. The application could be made at each
prefecture and was then forwarded to the Ministry. The patent also
had to contain the name of the invention, the duration (see below),
the purpose of the invention, a description, possible ways of use and
the name of the inventor, Secs. 3–5 Executive Provisions.
(4) Patents could be requested for a duration of five, ten, or 15
years.
(5) Patents could not be obtained for objects already invented by
others or already in use or known prior to the application.
(6) Patents could be transferred with the permission of the Ministry.
(7) For improvements made by the patentee, an improvement
patent could be requested, whose duration could not exceed the basic
patent.
(8) Improvements upon inventions patented by others could be
patented upon consent of the patentee of the prior invention, or, in
the absence thereof, by ministerial permission.
(9) Patents could not be granted on pharmaceuticals.
(10) Enforcement of the patent required notice of patenting on
the goods.
(11) Patents would be annulled after two years of non-use, or upon
importation of the invention from abroad.
(12) Patent infringements were criminal offences (imprisonment
between one month and one year), as were acts of misappropriat-
ing inventions and falsely attaching notes to products that they were
patented.
(13) Most interestingly, Sec. 28 contained a rule on preliminary
injunctions: When raising an action of infringement, the judge could
temporarily suspend the sale of goods that were allegedly infringing.
This provision is the more surprising since the subsequent Patent
Act did not contain any provisions on civil procedures of enforcement.
The 1885 Act was quite obviously modelled according to the French
Patent Act of 1835, certainly with modifications. Yet there are three
French specifics in this Act: first, the exclusion of pharmaceuticals;
second, the recognition of improvement patents; and, third, the
nullification of the patent where the patentee imported the patented
product from abroad.2
2
Acknowledged by Kiyose (1922), 51.
patent law 425
As mentioned above, the patent was not yet regarded as a right,

but as a discretionary privilege to be granted by the Ministry.
Additional shortcomings are the lack of any provisions concerning
examination, and the lack of clarity as to the date from which the
patent period is counted: application or grant. There is not even a
provision that would indicate the periods of five, ten or 15 years.
Rather, these periods can only be found in the rules on patent fees.
A draft Patent Act 1883 published in the Patents Journal No.
1969, 25323 envisaged a duration of 15, ten or seven years, depen-
dent on the importance of the invention. Instead of a lump sum,
annual patent fees were envisaged.
3. The Patent Act 18884
Although enacted only three years later, the 1888 Patent Act is
remarkably different from its predecessor. The reason was Korekiyo
Takahashi’s visit to the United States and his admiration for the
technological success and patent system of the United States. The
1888 Act turned the French-based into a U.S.-based Patent Act,
introducing the principle of substantive examination (practiced in the
U.S. since 1842), the claim for invalidation, and the principle of
first-to-invent.
As mentioned above, major changes occurred after Korekiyo
Takahashi’s visit to the United States. While some of the features
of the 1885 Patent Act were maintained, others were completely
changed. In detail:
(1) The applicant of an invention now had a true right to obtain
a patent, and the issue was no longer discretionary.
(2) Pharmaceuticals still were unpatentable, and so were objects
already in prior use unless for trials by the inventor up to two years
preceding the application. This introduced the two-year grace period
practiced in the United States.
(3) An examination system was introduced, and a Patent Office
set up under the jurisdiction of the Ministry of Agriculture and Trade.
3
Reprinted in German in Gareis/Werner (1884), 124.
4
Reprinted in German in Gareis/Werner (1895), 119.
(4) Patents would be granted for five, ten or 15 years.

(5) The system of dependant patents was maintained, while there
was no provision on the additional patent.
(6) Patents could be revoked ex officio, inter alia, because the patent
description contained an issue described as vital, yet in effect of no
importance. The rules for revocation (non-use for three years or
importation from abroad) were maintained.
(7) Against the rejection of a patent application, the applicant
could request a re-examination. No further appeals against the Patent
Office’s decisions were allowed.
(8) The law established the first-to-invent principle and in Sec. 13
set up an interference procedure in order for both applicants to fur-
nish “further details about the development of the invention”.
(9) Secs. 34, 34 contained rules on enforcement: Infringement of
another’s patent required the payment of damages for a maximum
period of three years. Patent infringement was also considered a
criminal offence.
The law came into force on 1 February 1889. It did not grant any
rights to foreigners, and the first bilateral agreement under which
foreigner were entitled to file for patent protection was concluded
with Germany in 1896 under the Treaty of Shipping and Trade.5
Subsequent treaties were concluded with Denmark,6 Great Britain7
and the U.S.8
In fact, on 1 February 1889, the English Chargé d’Affairs in Japan
had forwarded a patent application of a certain James Maclear to
the Minister of Foreign Affairs, Òkuma Shigenobu, asking for the
patent to be granted. In a diplomatically worded letter of 5 February
1889, Òkuma answered that “the Patent Ordinance does normally
not protect inventions of foreigners”.
5
Handels- und Schifffahrtsvertrag zwischen dem Deutschen Reich und Japan of
4 April 1896, in force since 18 November 1896.
6
Royal Danish Decree of 19 November 1897, in force since 1 January 1898.
7
Protocol between Great Britain and Japan of 20 October 1897. The Protocol
referred to the “Unequal Treaties” and made protection of foreigners dependent
upon renouncing the sovereign jurisdiction of British Courts over British subjects
in Japan, and the fact that also all other nations renounced such extraterritorial
jurisdiction. It is unclear when exactly this was the case.
8
Treaty between the U.S. and Japan of 13 January 1897, in force since 9 March
1897.
patent law 427
4. The Patent Act 1899
By the turn of the century, the industrial property system had reached
a certain maturity. Patent applications numbering 425 in 1885 had
risen to slightly more than 2,000 in the year 1900. Accession to the
Paris Convention required significant amendments to all industrial
property laws in that also foreigners were henceforth allowed to apply
for industrial property rights to the extent that they belonged to a
convention country. In the Patent Act, it was necessary to introduce
provisions on priority. Enactment of the Examination Rules for Patent
Attorneys and Their Registration also allowed for more detailed rules
on representation of foreigners without a residence in Japan.9 The
Patent Act No. 36 of 1 March 1899 replaced the previous Patent
Acts of 1885/1888. Its main features were:
(1) The first-to-invent system was maintained.
(2) The exclusive rights of the patentee were more clearly defined
in Sec. 1 as manufacture, sale, use or put into commerce.
(3) Pharmaceuticals remained unpatentable.
(4) The novelty requirement concerned prior public knowledge
or use without limitation to Japan. A two-year grace period was pro-
vided for inventions that were made public for reasons of trial.
(5) Patents were granted for 15 years from the registration date.
(6) Patents could be freely transferred, yet such transfer would
only be valid vis-à-vis third parties upon registration.
(7) Persons without residence in Japan needed to act through a
representative.
(8) The priority period in the case of prior foreign applications
was set at seven months.
(9) The systems of additional patent and dependent patent were
maintained.
(10) The system of internal and administrative appeals was clarified.
In the case of two conflicting applications, the law envisaged a kind
of interference procedure (consistent with the first-to-invent system).
Against a rejection of the application, a retrial could be ordered. Against
such decision and against decisions in the interference procedure,
9
Imperial Order on the Registration of Patent Attorneys No. 235 of 8 June 1899
and Examination Rules for Patent Attorneys of 4 November 1899, reprinted in
German in Osterrieth, Vol. IV (1899), 160 et seq.
the aggrieved party could file an appeal to the Patent Tribunal, a

board of appeal within the Patent Act. A final appeal on matters of
law was with the Imperial Supreme Court.
(11) Nullity could be requested by anyone before the Patent
Tribunal. The Patent Tribunal could also render decisions on the
scope of a patent and order infringers to pay damages.
(12) The above administrative enforcement left civil enforcement
before the ordinary courts unaffected. The courts were not bound
by the Patent Tribunal’s decision on the scope of the patent.
(13) The grants of revocation were limited to non-working for a
period of three years.
(14) Instead of a lump sum, the patent owner had to pay annu-
ities in the amount of 10 Yen for each patent, a sum increased by
5 Yen every three years.
(15) Patent infringement remained a criminal offence, yet depended
on intent. On the other hand, requirement of labelling products as
patented was abolished.
Prior to 1900, no significant decisions in patent matters have become
known. Decisions of relevancy by the Patent Tribunal or the Imperial
Supreme Court were mostly after 1910. Significant decisions by the
Imperial Supreme Court were rendered in 1904 and 1917, however:
The court established that the estoppel of nullity could not be heard
in infringement procedures brought before the ordinary courts.10 This
decision was overturned only in 2000.11
Not least the enactment of the Utility Model 1905 made a general
overhaul of the industrial property laws desirable. The specific fea-
tures of the Patent Act 1909 (as of 2 April 1909) were as follows:
(1) Patents were granted for commercial inventions or improve-
ments thereof.
(2) New provisions on inventions made in the course of employ-
ment. The employer was to receive the right over an employment
10
Imperial Supreme Court, 15 September 1904 (10 Keiroku 1679), and 23 April
1917 (23 Minroku 654).
11
Supreme Court, 11 April 2000, 1710 Hanrei Jihò 68—“Kilby’s Patent III”.
patent law 429
invention made in the course of employment or in order to fulfil a

contract. The a priori transfer of other inventions made outside the
course of employment was deemed invalid.
(3) Limitation of novelty to domestic prior use, knowledge or
printed papers circulated within Japan.
(4) Grace period of two years for trials conducted by the inventor.
(5) The first-to-invent principle was continued, yet the first inven-
tor could raise a claim of transfer only within two years from the
date of grant.
(6) Sec. 17 contained a unique provision regarding several inven-
tors or applicants. The provision contained the assumption that these
represented each other in acts before the Patent Office. Neither pre-
vious nor subsequent Patent Acts contained this most useful provi-
sion that would have saved a number of troubles.12
(7) The period of protection was 15 years from the date of grant
and could be extended for between three and ten years.
(8) Patents could be made subject to forfeiture upon non-use for
a period of at least three years.
(9) Rules on the enforcement of patent rights were notably absent,
although patent infringement was regarded as a criminal offence.
A number of important decisions were rendered under this 1909
Patent Act. Regarding the definition of an invention, it was held
that this required a “new commercial result”,13 while a discovery of
an existing subject matter could not be considered as an invention.14
An invention had to be complete to be patentable.15 A combination
of known processes was not deemed inventive unless it resulted in
a specific commercial result.16 Processes that resulted in the use of
less material17 or labour18 were deemed inventive. The courts also
required an inventive step for an invention to be patentable. Ideas
12
The matter went before the courts a number of times. Supreme Court, 7
March 1995, 1527 Hanrei Jihò 146—“Magnetic Treatment Device” held that inven-
tors had to act jointly before the Patent Office and the courts. A revision of the
Patent Act planned for 2003 aims to change this, at least in cases where all co-
inventors initially have filed the patent jointly.
13
Imperial Supreme Court, Minshù 1910, 342.
14
Patent Appeal Decisions 1921, 1633.
15
16
17
18
that could be easily thought of were not deemed patentable.19 As to

novelty, it was held that this issue was up to a judicial interpreta-
tion.20 In regard of foreign publications, these were considered nov-
elty destroying only to the extent that they had arrived in Japan
prior to the application date.21 Within Japan, knowledge of a third
party without a secrecy obligation would destroy novelty.22 This also
applied when the secrecy obligation ended,23 or when use was made
in a public place where everyone had access.24
There are notably fewer decisions on questions that would relate
to the private enforcement of patents, but again a number that
related the interpretation of patent claims by the Patent Tribunal
(claim for ascertaining the scope of a right). Interpretation should be
made in accordance with a claim and in taking into account the
whole description.25 The wording of the claim as such was not deemed
so important, but rather how those skilled in the art would have
perceived the invention.26 Imprecision or errors in the wording of
the claim would not impede patentability.27 The wording of the claim
could be interpreted broadly if it could be assumed that the inven-
tor would have been aware of this issue.28 The file wrapper could
be considered in determining the scope of the claim.29
In a request for determining the scope of a patent, the patent
may neither be considered invalid nor reduced in scope.30 As men-
tioned above, this is the more true for civil courts that may not con-
sider the patent invalid.31 The ordinary courts may, however, determine
the scope of a patent,32 and are not bound by the Patent Tribunal
in this respect.33 Iizuka also explains this with the fact that decisions
19
20
21
22
23
24
25
26
27
28
29
30
31
As above, Imperial Supreme Court, Minshù 1922, 178.
32
Imperial Supreme Court, 5 November 1912, mentioned in Kiyose (1922), 451.
33
H. Iizuka (1926), 49–50.
patent law 431
in civil procedure only bind the parties, while decisions by the Patent
Office have a broader scope in that the same request can no longer
be brought even by a different party (Sec. 117 Patent Act 1921).
Another significant change occurred after the First World War that
brought an enormous economic boom to Japan. When the Patent
Act 1909 was enacted, patent application numbered little more than
5,000. This number had doubled ten years later, again suggesting
amendments in line with economic development and necessities.
Significantly, not only the Patent Act but the whole system of indus-
trial property was revised in 1921. The new Patent Act (Act. No.
96 of 29 April 1921, in force since 11 January 1922) had the fol-
lowing characteristic features:
(1) The Act clearly spelt out the first-to-file principle in Sec. 8.
However, in order to accommodate the rights of the true inventor
in cases of misappropriation, the Act allowed for a right of re-filing,
Secs. 10, 11.34
(2) The provisions on employees’ inventions were further refined.
Employees’ inventions belonged to the employee, yet a transfer in
anticipation was allowed where the invention was made within the
scope of duty and under a specific obligation. In the absence of a
contractual provision to this extent, the employer obtained a non-
exclusive licence.35
(3) Novelty was clearly limited to domestic use, publication or print
media circulated in Japan.
(4) Pharmaceuticals, chemical substances and articles of food were
exempt from patentability.
(5) The grace period of previously two years was severely limited
to six months.
34
Remarkably enough, these provisions were deleted when the new Patent Act
1959 was enacted. The new law gave the true inventor the only right to have the
patent invalidated, but did not grant any rights of refiling or of transfer. Such a
right of transfer after some hesitation by the courts was only allowed by Supreme
Court, 12 June 2001, 15 Law & Technology 76 [2002].
35
The original draft required remuneration, yet this was vetoed by the upper
house: Mentioned by H. Iizuka (1926), 33.
(6) The protection period was 15 years from the publication date,
and could be extended for up to 10 years “in case a patentee of an
important invention has, for good reason, been unable to derive rea-
sonable profit from the invention within the period of duration of
his patent right” (Sec. 1 Imperial Ordinance No. 460/1921).
(7) There was no clear distinction between the patent right and
the registered patent. Sec. 34 specified that the patent right came
into existence by registration.
(8) The law continued to recognise additional patents and depen-
dent patents.
(9) Provisions were introduced to require the patented goods to
be marked as patented, Sec. 64.
(10) Major changes were made in the application procedure. The
examined patent was published, and oppositions could be raised
within two months. The opposition would then be dealt with by the
examiner of the application. If the opposition was rejected, the oppo-
nent could only raise a nullity action.
(11) Nullity actions and trials on the confirmation of scope could
be raised before the Patent Tribunal. The nullity action was limited
to five years from the day of publication of the application. Oral
procedures were introduced before the Patent Tribunal at least regard-
ing nullity. A new tier of appeals was introduced, as appeals against
the Patent Tribunal’s decision would now go before an enlarged
board of the Tribunal prior to the final appeal to the Imperial
Supreme Court.
(12) Infringement suits before the ordinary courts could be sus-
pended until a decision on nullity was rendered, Sec. 118. Patent
infringements continued to be regarded as criminal offences under
Secs. 129 et seq.
While the change to the first-to-file principle was certainly a major
one, previous practice had almost always granted the right to the
first applicant, as determination of the first inventor proved extremely
difficult and cumbersome.36
The 1921 Act had a number of other peculiarities that should be
briefly mentioned. For one, the scope of the patent was not limited
to acts of commercial exploitation, but also extended to private acts.
36
H. Iizuka (1926), 21.
patent law 433
It is doubtful that private use of a patented technology was ever per-

secuted, yet one wonders about this matter in the first place.
Of some interest are also the application procedures. According
to Sec. 38 Patent Enforcement Provisions (Ordinance No. 33/1921),
a patent specification had to contain the following:
– title of invention;
– nature of the invention and the sense of its object;
– brief explanation of drawings;
– detailed explanation of the invention; and
– extent of the claim for a patent.
Since multiple claims were not allowed, a patent could only contain
one main claim, and several dependent claims. The latter were exam-
ined in their respective order, which could make the examination
procedure extremely time-consuming and cumbersome.37 The courts
interpreted the scope of patents not primarily according to the
claim language, but rather according to nature and purpose of the
invention.38
Prior to 1945, the Patent Act was amended only three times, and
only in respect of minor matters.39 Of major importance were the
changes thereafter.40 Of particular importance were the changes made
in 1948. Since the new Japanese constitution required all adminis-
trative decisions to be appealable to a court of law, the previous
structure of administrative appeals was changed. Prior to the amend-
37
Difficulties of the old patent prosecution system came to the fore quite recently
in connection with the unique Kilby case. Here, Texas Instruments had filed the
basic patent for semiconductors in 1959 in the U.S. and in February 1960 in Japan.
The patent application in the U.S. had more than 30 claims. “To obtain a com-
parable scope of protection, TI needed to select one claim for the original Japanese
application and file divisional applications for remaining claims. TI’s patent prose-
cution was extensively delayed because the Japanese Patent Office refused to exam-
ine the parent and divisional applications in parallel because the JPO needed to
avoid double patenting issues by determining the scope of the claim in a pending
application by making reference to issued claims. Of the several divisional applica-
tions filed by TI, only four have been granted patents. After more than 30 years
of delay, the disputed patent was issued” (T. Takenaka, CASRIP Newsletter Fall
1997, 7).
38
Imperial Supreme Court, 29 January 1938, mentioned in T. Takenaka (1995).
39
By Law No. 47 of 4 April 1929, Law. No. 3 of 8 March 1938, and Law No.
5 of 8 March 1938.
40
By Law No. 105 of 8 September 1947, Law No. 223 of 22 December 1947,
Law No. 172 of 15 July 1948, Law. No. 103 of 24 May 1949, Law No. 9 of 6
March 1951 and Law No. 101 of 28 April 1952.
ment, the Patent Office provided for a two-tier structure of decision

and internal appeal, both for procedures of grant and for those of
invalidation. Appeal decisions by the Patent Office could be further
appealed to the Imperial Supreme Court, yet only on matters of
law. Since 1948, the Tokyo High Court has been given exclusive
jurisdiction to review all Patent Office appeal decisions both on facts
and law. A further appeal then lies with the Supreme Court. The
Tokyo High Court, under a strangely hybrid system between judges
and technical experts, employs members of the Patent Office on sec-
ondment for giving their opinions on patent cases in order to assist
the deciding judges. The system has received criticism as the par-
ties are not given an opportunity to question this technical assistant.
In view of such criticism, the system is currently under review and
might be changed in the foreseeable future. While decisions of the
Patent appeal divisions prior to 1948 carried significant weight, this
subsequently diminished in view of the Tokyo High Court’s fact-
finding powers. Nowadays, patent appeal divisions are composed of
relatively young examiners, which was not the case previously.
Furthermore, in the post-war period a number of specific laws
were enacted regarded “industrial property rights owned by allied
nationals”, regarding the expropriation of industrial property rights
owned by German nationals, and regarding the reinstatement of
rights where relevant acts such as filings or payments could not be
carried out due to the war.41
The hitherto last major revision of the Patent Act was undertaken
in 1959 (Law No. 121 of 13 April 1959, in force since 1 April 1960).
The law has been amended several times, see below.
41
All these orders and enforcement regulations are reprinted in Japanese Patent
Office, Japanese Laws Relating to Industrial Property, Tokyo 1957. The most impor-
tant laws were the Order for Post-war Dispositions of Industrial Property Rights
Owned by Allied Nationals of 16 August 1949 with its supplementary rules and
dispositions. An additional notification of 14 September 1949 lists the allied coun-
tries and the dates between which the reinstatement would be granted (generally
between 8 December 1941 and 30 September 1951, the last date to file a petition
for restoration. Rights of citizens of neutral countries (Switzerland, Denmark and
Sweden) were regulated in special agreements, as were the rights of German citi-
zens (including Austrians). The latter agreements were signed in 1953/1954.
patent law 435
The main features of the 1959 Patent Act are as follows:

(1) Clear stipulation of the requirements novelty, inventive step,
and industrial application. Also foreign publications could now destroy
novelty. The requirement of industrial application was further clarified;
(2) Exclusion of medicinal products or chemical substances from
patentability;
(3) Limitation of the duration to 15 years from publication or 20
years from filing, whichever shorter. The previous provisions that
permitted the patentee to request an extension in cases of incom-
plete commercial success were abolished.
(4) Possibility of combining two inventions in one patent. Prior to
1921, it was possible to include more than one claim in one appli-
cation. This was no longer possible under the 1921 Act, and was
now liberalised again;
(5) Perhaps under the influence of the German Employees’ Invention
Act 1957, a new provision (Sec. 35) strengthened the rights of
employed inventors. Even inventions made in the course of employ-
ment belonged to the inventor, yet the employer could ask for a
transfer upon payment of an equitable remuneration;42 this provi-
sion has long been dormant in view of the practice of Japanese com-
panies of paying relatively low compensation rates, and often only
fixed amounts even in case of extraordinary commercial success.43
The courts in the past upheld such rules.44 Remuneration had to be
specified as such, however, and could not be bundled into retire-
ment payments or the like.45 The transfer request was held valid by
the courts even in the absence of an agreed remuneration.46
(6) The Patent Office could still determine the scope of a patent
right, yet this was not held binding upon the courts;
(7) For the first time, the Patent Act contained detailed provisions
on infringement, remedies and the calculation of damages;
42
Only a 1999 court decision held that Sec. 35 overruled internal company rules
and calculated the proper amount of compensation in the range of an ordinary
licensing fee, Tokyo District Court, 16 April 1999, AIPPI Japan International Edition
1999, 255—“Olympus Pickup Apparatus”; upheld by Tokyo High Court, 22 May
2001 and Supreme Court, 28 April 2003, unreported. Here, the employee had to
swear that he would abide by the company’s internal guidelines.
43
See the study by the Nihon Tokkyo Kyòkai (1994).
44
Osaka District Court, 26 April 1984, Mutaishù 16–1, 283.
45
Osaka High Court, 27 May 1994, GRUR Int. 1995, 413.
46
Osaka District Court, 18 May 1979, GRUR Int. 1980, 59.
(8) No time limit was stipulated for requesting invalidation of a

patent.
The official reasons for the above-mentioned changes as published
by the Ministry of International Trade and Industry read as follows:
“(1) That a description in a printed publication circulated in a foreign
country have been included as to the standards to the novelty of an
invention (Article 29 Par. 1 item (3)).
The provisions to the effect that an invention should be novel to
be patentable are contained both in the existing law and the amend-
ment bill, but an essentially important amendment is being proposed
with respect to the meaning of the novelty, namely, the existing law
provides (in Article 4) that an invention is not novel if the invention
is publicly known or publicly used within Japan before an application
is made for a patent thereon is made, and if an invention is being
described in a printed publication within Japan, thereby establishing
the geographical boundary to legal effects. The new bill on the other
hand, intends to stipulate that an invention is not novel in neither
cases where it is described in a printed publication circulated within
Japan nor in a publication circulated in a foreign country.
The reason for such amendment is in that in these days when the
development of traffic and communications has been highly appreci-
ated to make it easy for technology to interchange between Japan and
a foreign country, it is reasonable to consider that a printed publica-
tion brought out already in a foreign country is a common property
accessible freely by the general public, even if it were not yet distrib-
uted within Japan, and therefore, it is not proper to grant monopo-
lies to an invention even though such invention, the same one as
described in the printed publication, happened to be made. Under the
existing law, it might not be beyond imagination to conceive that a
foreign national obtains a patent in Japan with respect to such an
invention of lower grade as being described in a printed publication
of a foreign country in an industry like the atomic power industry
which is now still in a nursery stage.
(2) That an ‘invention of substances to be manufactured by nuclear
conversion’ is added newly to the category of invention not patentable
(Article 32 item (4)).
According to the existing law (Article 3 item (3)), an invention of
substances to be manufactured by chemical processes’ is not patentable.
The reason therefore lies in that in the event that, if such substances
themselves were patentable, a more excellent method is subject to the
patent on substances, and thereby leading to depress the will to invent
more excellent methods and further check development of chemical
technology. The same may be said of ‘substances to be manufactured
by nuclear conversion,’ and the invention of such substances is con-
sidered to have reasons enough for unpatentables.
patent law 437
(3) That it is allowed for two or more inventions closely related with
each other or one another to be capable of obtaining patent on the
strength of one application (Article 38).
In an attempt to amend the provisions of Article 7 of the existing
law which provide that two or more inventions such as the original
invention and its partly improved invention or the method of manu-
facture and its equipment, etc. require two or more applications in
order to protect such inventions to a satisfactory extent, one applica-
tion is enough to cover patents on the whole. In the wake of this
amendment, an applicant will become free from troubles and economic
burden he is supposed to take on him otherwise for separate applica-
tions for two or more inventions that are commonly based on the
inventive conception of a fundamental nature. In working a patented
invention, third parties might benefit in dealing in patent rights and
in investigating of the earlier patents, if two or more inventions relat-
ing to the patented invention would be included in single patent.
(4) That the effect of a patent does extend only to acts on business
(Article 68).
In the existing law (Article 35 par. 1), the effect of a patent extends
to an act as done in, for instance, a home in using the articles in
respect of a patent. However amendment is being proposed on the
ground that the existing effect is going to extremes too much, and
intends to limit the effect of a patent to an act as business.
(5) That a trial for determination of the limits of a patent right is
repealed, and instead, a trial for interpretation is to be inaugurated
(Article 71).
There have been disputes over whether the courts are bound by a
judgement in a trial of the trial for determination instituted by the
Patent Office in forming a judgement on a preconsideration in the
case of proceedings of infringement. The amendment draft clarifies
that a judgment passed by the Patent Office has no legal binding
power at all and is nothing more than an opinion of reference of a
governmental agency which has granted a patent in the eye of the
law, clearing of the indistinctiveness in the legal nature of a judge-
ment in a trial of the trial for determination.
(6) That even a person other than the Government is to be enabled
to work a patented invention of another person, if necessary, in the
public interest (Article 93).
Article 40 of the existing Law provides that the Government may
cancel, restrict a patent of a person, or expropriate his patent right or
work his patent right if necessary in the public interest, whereas the
proposed draft makes it possible for even a person engaged in a busi-
ness other than the Government to work a patented invention of
another person at the person’s request, if such request is considered
justifiable. Meanwhile, the provisions of expropriation, etc. of a patent
right is repealed in the bill.
(7) That the period of duration is proposed to be fifteen years from
the day of publication of an application as a rule, the same as in the

existing Law (Article 43 paragraph 1), but may not exceed twenty
years from the day of the application (Article 67 paragraph 1).
It is desirable for the general public to build up a system under
which the period of duration terminates after the lapse of a certain
period of time calculating from the day of application, but on the con-
trary it is beneficial for a patentee to have another system under which
the calculation is made from the day of publication of an application.
Thus the present bill intends to arrange a compromise plan of the two
ways of thinking. Namely, the basic principle is being maintained along
the line laid down by the existing Law of fifteen years from the day
of publication of an application to the day of publication of the appli-
cation for some reason or other, the period of duration is proposed
to terminate in twenty years from the day of application.
(8) That a new provision relating to an infringement of a right is
newly added (Article 100 through Article 106).
There is no provision relating to civil affairs of an infringement of
rights in the existing Patent Law, and instead the provisions of the
Civil Code as a general statute apply thereto. However, in view of the
peculiarity of a patent right (broadly speaking, industrial property), it
is considered proper to make a new provisions relating to an infringe-
ment of the right in the draft. The main contents as such are a right
to demand the cessation, a right to presume the amount of damages,
an infringement by minor negligence, and so on. The right to demand
the cessation is characterized by the demand to destroy the articles of
infringement, to exclude equipment which was put to the use of an
act of infringement, etc. at the time of demanding to discontinue an
act of infringement (Article 100). As for the presumption of the amount
of damages, the benefits received by an infringer by his act of infringe-
ment is presumed as the amount of damages upon demanding com-
pensation for the damages in case an infringement of a patent has
been made intentionally or negligently (Article 102 paragraph 1). Fur-
ther, as for an infringement by minor negligence, it is capable of taking
into account of the fact that the infringement has been a minor negli-
gence (Article 102 par. 3).
(9) That the existent patent fee levels are intended to be somewhat
redoubled (Article 107).
The existing patent fees have been effective since the amendment
in 1951. In the meantime, the commodity price level has risen since
1922 when the existing Patent Law was enacted (and in comparison
with the average price level of the period from 1934 to 1936) by some-
thing between 300 to 400 times. Inasmuch as it is a logical conclu-
sion that the hike in commodity price level has pushed up the value
of a patent right to that extent, it may be well to assert that patent
fees should be raised correspondingly. On the basis of the patent fee
for the fifteen years (405 yen) in 1922, if the sum be trebled the amount
comes to be 121,500 yen, which in turn is a 3.4-fold the current fee
patent law 439
(35,400 yen). However, as it is not fair to raise the patent fees by three
times at one bound from the point of approximately redoubling the
current level.
Supposing that the fees are to be increased twice the present level
as blueprints, it is not conceivable that the economic burden of a
patentee would become too heavy. Further the proposed fees are still
below the levels now prevailing in foreign countries, and, on balance,
there might arise trifle, if any, complaints of the new charges.
(10) That the system of the period of duration is to be repealed.
The existing Law (Article 43 par. 5 and Article 1 of the Patent Law
Enforcement Order) provides that the ‘period of duration of a patent
may be extended for a period from three years to ten years as pro-
vided for by Cabinet Order. The prerequisites to the extension are
the importance of an invention and the incapability of having derived
a reasonable amount of profits from an invention. However, it is impres-
sively difficult to acknowledge whether a reasonable amount of profits
have been derived or not, and as for the importance of an invention,
third parties strongly expect the period of duration to terminate after
the lapse of fifteen years depending upon the wright in importance,
and therefore the extension of the period of duration poses greater
problems. Such being the case, the draft proposes to eliminate the sys-
tem of the extension.
(11) That the period of exclusion with respect to the demand for a
trial for the invalidity is proposed to be repealed in most measure
(Article 124).
Article 85 provides that no trial for invalidity of a patent may be
demanded after the lapse of five years (the period of exclusion) from
the day on which the patent has been registered from the standpoint
of stabilization of patent right. On the other hand, however, there are
examples drawn in which by making a bad use of such provisions,
without putting to work an invention of a patent which is to become
from the outset (such as having obtained a patent therefore by steal-
ing the invention of another person), the invention has been worked
publicly only after the lapse of the period of exclusion when there was
no apprehension of being invalidated. In order to eliminate such evil
practices, the system of the period of exclusion is being proposed to
be repealed in principle, with the exception of the case in which a
trial of invalidity is demanded on the ground that a description is
made in a printed publication in a foreign country as stated in (1)
above, otherwise, a patent right might become unstable all the more.
(12) That the class of trial is to be made a single one.
According to the existing law (Article 109 and following), there are
established two classes of trial in the trial mechanism in the Patent
Office; namely, a trial and an appeal trial. In the amendment draft,
there two are turned into a single trial system. Generally speaking,
there are two requirements for proceeding of a trial; one is strictness
and discretion and the other promptness. With the latter (the prompt
progress of proceedings) being placed an emphasis more than the for-

mer, a single trial system is intended for introduction. In the mean-
time, there is no change proposed in the existing provisions, in this
case, as to the capability of bringing an action of dissatisfaction against
a judgement in a trial to the Tokyo Higher Court.”47
Subsequent changes of the 1959 Patent Act were the following:
(1) By Law No. 91/1970 of 22 May 1970, in force since 1 January
1971, all applications would henceforth be laid open after 18 months
from filing or from the respective priority date;
(2) In 1976 (Law No. 46 of 25 June 1975, in force since 1 January
1976), the absolute protection of substances was introduced;
(3) In 1978, Japan acceded to the Patent Cooperation Treaty,
which resulted in the respective changes by Law No. 30 of 26 April
1978, in force since 1 October 1978;
(4) In 1983, the system of inner priority was introduced, while the
system of additional patents was repealed (Law No. 41 of 1985 of
28 May 1985, in force since 1 November 1985);
(5) A truly major change occurred in 1987 when, first, the sys-
tem of multiple claims was introduced and, second, owners of phar-
maceutical patents were given the possibility of extending their rights
in cases where commercial exploitation was delayed due to approval
procedures (Law No. 27 of 25 May 1987, in force since 1 January
1988);
(6) In 1990, the possibility of paperless filing was introduced, and
abstracts were provided for patent applications (Law No. 30 of 13
June 1990, in force since 1 December 1990);
(7) In a minor revision of 1993, a system of expedited examina-
tion was introduced together with some limitations on the amend-
ment of claims (Law No. 26 of 23 April 1993, in force since 1
January 1994);
(8) In 1994, the possibility of filing the application in the English
language with a subsequent translation was introduced. The pre-
grant opposition system was changed to a post-grant one, which had
been a major demand, particularly from abroad (Law No. 116 of
14 December 1994, in force since 1 July 1995);
47
(Without author), The New Industrial Property Code Series of Japan: Vol. I—
Patent Law, Tokyo 1959, 159–165.
patent law 441
(9) Revisions of 1999 and 2001 (Laws No. 41, 43, 51, 160 and
220 of 1999, Law No. 97 of 2001) concern a strengthening of the
enforcement system: In cases of infringement, a patentee could now
receive a “licensing fee” instead of an “ordinary licensing fee”, which
led to higher amounts.48 Further, calculation of the patentee’s dam-
ages could now be undertaken by the formula of multiplying the
infringer’s sales with the profit the patentee would have realised had
he sold such numbers. The court was also given more discretionary
powers in inspecting documents from the other side;
(10) Finally, in an amendment of 2002 (as of 17 April 2002), com-
puter programs were confirmed as being protectable as products and
Internet publications were explicitly mentioned as novelty-destroying
(Laws Nos. 24, 100 of 2002).
Future amendments are planned for merging the post-grant opposi-
tion system with the requests for revocation.
8. Current Literature
– Chizaishù (previously Mutaishù), Series on Intellectual Property

Cases 1969–1996;
– Hanrei tokkyo shingai hò (Cases on Patent Infringement), Tokyo
1983;
– Hanrei tokkyo shingai hò II, Tokyo 1996;
– Hanrei tokkyo soshòhò (Cases on Patent Suits), Tokyo 1986;
– N. Nakayama (ed.), Shùkai tokkyo hò (Commentary on Japanese
Patent Law), 3rd. ed. Tokyo 2001;
– Yoshifuji/Kumagai, Tokkyo hò (Patent Law), 13th ed. 1999.
Literature:
(without author), The New Industrial Property Code Series of Japan,
volume I—Patent Law, Tokyo 1959; Kiyose, Tokkyo hò genri (Outline
of Patent Law), 4th ed. Tokyo 1936; Kògyò shoyùken kenkyùjò, Official
Gazette ni miru sembai tokkyo jòrei (The Official U.S. Gazette on
48
E.g., Tokyo District Court, 30 March 1998, 1656 Hanrei Jihò 143: 7% in a
patent infringement case.
the Japanese Monopoly Provisions 1885), 27 Tokkyo Kenkyu 52

[1999]; K. Kumagai, R. Maruyama, F. Sato, Y. Someno, N. Suzuki,
T. Tamura, Nihon tokkyo seidò gaishi (History of the Japanese Patent
System), (1) 23 Tokkyo Kenkyù 46 [1997]; (2) 24 Tokkyo Kenkyù
18 [1997]; (3) 25 Tokkyo Kenkyù 20 [1998]; (4) 26 Tokkyo Kenkyù
24 [1998]; (5) 27 Tokkyo Kenkyù 11 [1999]; (6) 29 Tokkyo Kenkyù
24 [2000]; Nihon Tokkyo Kyokai, Hatsumei Hoshò Seido No Genjo
To Teigen (Current Practice and Rules on Remuneration for
Employees’ Inventions), 1994; K. Someno, Grundlagen und Probleme
des japanischen Patentrechts, GRUR Int. 1994, 371; T. Takenaka,
Interpretating Patent Claims: The United States, Germany and Japan,
Weinheim 1995; Yoshiwara, Tokkyo hò shòron (Explanations on
Patent Law), Tokyo 1938.
utility model law 443
5.3 Utility Model Law
Christopher Heath
1. From a German Inspiration to a Japanese Law
From its inception, Japanese patent law was based on the principle
that in order to maintain and promote progress, patentable inven-
tions should be novel worldwide. The Japanese government wanted
to make sure that nothing could be domestically protected that had
merely been copied from existing technology abroad. After Japan’s
accession to the Paris Convention, however, it became evident that
the main users of the patent system were foreigners capable of ground-
breaking inventions. Japanese inventive activity was then confined to
minor improvements for which patent protection was not available.
Yet the lack of protection encouraged competitors to imitate any
such improvements, often resulting in products of shoddy quality.
The high prestige that Germany enjoyed at the end of the 19th
century facilitated the spread of German legislative ideas in Japan.
Germany had enacted a utility model system in 1891. It had become
necessary to provide protection for small-scale innovations after the
German Supreme Commercial Court (Reichsoberhandelsgericht)
decided on 3 September 1878 that utility models could not be pro-
tected as designs. Designs were meant to please aesthetically, while
utility models protected technical improvements. Just as the utility
model system in Germany served small and medium sized enter-
prises, it could also serve a Japanese industry which was not yet
capable of developing fully-fledged inventions which could be patented.
While there was little opposition to the introduction of the utility
model system, there was also little understanding of the exact definition
of a utility model,1 particularly the scope of objects to be protected.
While the original German Utility Model Act limited protection to
“working tools” (Arbeitsgerätschaften), there was no equivalent limita-
tion to be found in Japanese law.
1
M. Ando (1983), 540/541: Parliament apparently viewed the new right as a
“technical [patent] design right, . . . a visible invention”.
2. The First Utility Model Act of 1905 2
The main features of the first Japanese Utility Model Act ( jitsuyò
shin’an hò) were the following:
(1) A right could be obtained for “useful developments concern-
ing the shape, arrangement or concept of a commercial object”.
(2) In contrast to the provisions of patent law, the novelty require-
ment only extended to novelty within Japan.
(3) In contrast to the provisions of the Patent Act then in force,
the utility model system was based on the first-to-file principle.
(4) The period of protection was six years, consisting of an initial
period of three years, with a possibility of extension for a further
three years.
(5) Utility model protection could also be obtained by foreigners
who were nationals of a country subscribing to the Paris Convention.
(6) If certain conditions were met, an invention could be regis-
tered both as a patent and as a utility model.
(7) Just as in the case of patents, utility models were subject to
substantive examination before grant.
The Japanese Utility Model Act differed from its German counter-
part in that Germany had opted for a registration system without
prior examination. The right was granted for a total period of eight
years. Initially, since the German Utility Model Act of 1891 only
gave protection to improvements in “working tools”, the Japanese
law was interpreted in the same way, although the text of the law
gave no basis for such a narrow interpretation.3 Nonetheless, the Act
satisfied domestic needs for low-level protection without clogging the
patent register with applications for minor improvements. Thus tough
standards for the examination of patents could be maintained with-
out discouraging domestic industry, and Japan could counter the
inflow of foreign patents (then about one-third of all patents granted)
by a protection system specifically designed for domestic industry.
2
Jitsuyò shin’anhò as of 15 March 1905, Law No. 21.
3
N. Monya (1973), 168.
3. Subsequent Changes up to 1921
In 1909, a new Utility Model Act4 was promulgated together with

new statutes on patents, registered designs and trade marks, stream-
lining the IP system in general.
The features of the new Utility Model Act of 1909 were as follows:
(1) The object of protection, and requirements for novelty remained
the same as in the first Utility Model Act.
(2) New provisions were introduced to establish that inventions by
employees would be the property of the respective employers.
(3) Patent or registered design applications that had been rejected
could be accepted as utility model applications and retained the orig-
inal priority filing date.
(4) The scope of registered utility models was limited by patents
or designs having an earlier priority date. Still, no actual exclusiv-
ity of patent and utility model applications for the same idea was
introduced.
(5) The procedures for patent applications were made applicable
to utility model applications as well.
The Utility Model Act was subsequently amended in 1916.5 The
amendments provided for an additional extension period of four
years, so that utility model protection now amounted to a maximum
period of 10 years.
4. The Utility Model Act of 19216
The whole industrial property system was overhauled again in 1921.

The most dramatic changes concerned patent law, which switched
from the first-to-invent to the first-to-file principle. In utility model
law, as explained above, the first-to-file system had been used from
the very start.
One aim of the reform in 1921 was to distinguish more clearly
between patents and utility models. In order to clarify the difference,
4
Law No. 26/1909.
5
Law No. 32/1916.
6
Law No. 97/1921.
the word “kata” (form, type) was added to Sec. 1 of the Utility Model
Act. Again, legislation was aimed at avoiding the misconception that
utility models were inferior patents and clarified that utility model
protection was limited to the form, construction or layout of arti-
cles.7 Thus while Japanese utility model law moved closer to its
German counterpart,8 in subsequent decisions under the new Utility
Model Act, the discussion concerning the nature of utility models
continued.9
The main features of the Utility Model Act 1921 were as follows:
(1) Protection could be sought for “new types of practical utility
in the form, construction or composition of articles devised for indus-
trial use”.
(2) Novelty was limited to domestic novelty, as in the previous
Utility Model Acts.
(3) Rejected applications for patents or registered designs could be
converted within 30 days into ones for utility models of rejection.
(4) Utility models improving patents or designs with an earlier
filing date could be treated as dependent inventions, to be used only
with the consent of the owner of such previous right.
(5) The protection period for utility models would last 10 years
from the registration (not application) date.
(6) There were no specific provisions for the civil enforcement of
utility models, only provisions related to criminal fines in case of
contravention.
Some minor changes of the Utility Model Act were subsequently
made,10 most of them concerning changes in the fee structure.
7
B. Jinbo, [1980] Tokkyo to Kigyò, 134.
8
K. Murayama (1912), 245, pointing to German discussions on the object of
protection: The form, or rather the invention as such?; R. Yoshiwara (1928), 6 et
seq. already took the view that ‘form’ could also relate to two-dimensional objects
and seems to favour only a qualitative difference between patents and utility mod-
els, although his arguments seem somewhat convoluted.
9
Not even the old Imperial Supreme Court (Dai shin’in) adopted a consistent
position. In one decision it found that for utility models, infringement should be
determined by comparing form, structure and combination of elements, while in
the case of patents, the technical results should be compared (decision of 14 June
1919 (case no. 821/1918)). A similar view was taken in case no. 554/1932. Another
decision, however, found it necessary to compare the technical results: case no.
159/1929: All decisions reprinted in M. Ando (1983), 550–551.
10
Laws No. 28/1929, No. 5/1938, No. 10/1947, No. 172/1948, No. 103/1949,
No. 10/1951.
5. The Utility Model Act of 195911
As a result of the different legal and working environment follow-

ing the American occupation, a further comprehensive overhaul of
the industrial property system seemed necessary. For this reason, all
industrial property laws were revised in 1959. The old Utility Model
Act of 1921 had shown a number of weaknesses, related particularly
to the interpretation of the object and scope of protection. The dis-
tinction between patents protecting technical ideas and utility mod-
els protecting forms and shapes led to a high number of quasi-defensive
applications for utility models. Because the scope of protection for
inventions was interpreted narrowly, inventors were submitting a
large number of utility model applications in order to protect a sin-
gle invention in different forms and compositions. Thus the Utility
Model Act was being used as a sort of back-up protection for
patentable inventions. This was certainly not the rationale for intro-
ducing utility model protection in the first place, nor was it desir-
able to treat protection for utility models and patents alike, as inevitably
this would have lowered the level of innovation required for patents.
Thus it was agreed that while the scope of utility model protection
should be broadened, the same invention should not be protectable
both as a patent and a utility model.12 Yet it was clear that utility
model protection as such should be maintained for all sorts of inven-
tions save processes.13 The only difference between utility models and
patents was the degree of inventive step.
11
Law No. 123/1959, subsequently amended by laws No. 140/1962, No. 148/1964,
No. 61/1965, No. 91/1970, No. 96/1971, No. 46/1975, Nos. 27, 30/1978, No.
45/1981, No. 23/1984, No. 24/1984, No. 41/1985, No. 27/1987, No. 30/1990,
Nos. 26, 89/1993.
12
This is one of the main criticisms voiced by K. Tamai (1995), 66. There has
indeed been a lot of international debate on how far a utility model application
with immediate protection could be used to bridge the gap until a patent has been
issued. See, e.g. R. Krasser, Ein neues Gebrauchsmusterrecht für Deutschland und
Europa, in: Rahn/Scheer, Gewerblicher Rechtsschutz in Deutschland und Japan
102 [1994].
13
In the case of utility models, the reasons for excluding processes were historic,
as the initial emphasis of the system was to protect the form of goods: K. Yoshifuji
(1994), 576. However, it has been held permissible to claim novelty if just the man-
ufacturing process was new: decision by the Tokyo High Court of 31 October 1978,
[1978] Torikeshi Hanreishù 349. Yet it is essential that the process entails a device:
K. Yoshifuji (1994), 589.
The main features of the 1959 Utility Model Act were as follows:
(1) Protection could be sought for “innovations relating to the
shape (‘keitai’ ) or construction of articles”;
(2) Novelty remained confined to Japan except for printed publi-
cations;
(3) Rejected patent and registered design applications could still
be converted into applications for utility models within 30 days;
(4) Examination and grant of utility models closely followed the
rules for patent applications.
Some further amendments of utility model legislation were made in
1971 and 1987. On both occasions the changes were in fact changes
in the patent system which also extended to utility models. In 1971
it was decided that all applications had to be open for public inspec-
tion after 18 months from the filing date. As of 1987 it became pos-
sible to file more than one independent claim per utility model
application on condition that the unity of invention was maintained.
6. The Current Utility Model System Introduced in 199414
For a number of reasons, in 1994 the utility model system (and this
time, only the utility model system) was again altered. By the late
1980s, the number of patent applications had exceeded that of util-
ity model applications. In addition, there had been complaints from
abroad that the process of substantive examination for utility mod-
els was too slow in Japan and that international developments would
favour granting utility models as unexamined rights. Out of all this,
Japan drew some sanguine conclusions. First, it decided that on the
whole utility models were not as important to domestic industry as
they had been. Second, in order to appease international criticism,
it was decided that utility models should be granted as unexamined
rights and utility examiners should now work as patent examiners
in order to speed up the process of patent examination. Third, since
unexamined rights were prone to abuse, it was decided that the pro-
tection period should be substantially shortened. It was in fact these
14
Law No. 116/1994, as amended by Law No. 91/1995.
changes that sounded the death knell of the whole utility model
system.15
The main features of the current utility model system are the
following:
(1) protection for all kinds of inventions, except for processes;
(2) grant of unexamined rights upon registration only;
(3) protection period of six years from the filing date;
(4) compulsory substantive examination of the utility model right
before an infringement action can be raised.
The two drawbacks of the current system are, first, that the value
of utility models with regard to technology transfer is limited because
the rights are unexamined and their substantive validity is thus
unclear; and second, that there is little chance of succeeding in a
claim for injunctive relief within the protection period of six years.
The limited scope of the new system is evidenced by the sub-
stantial drop in application numbers, now running at about 25% of
earlier levels.
7. Statistics
In 1906, the first year in which utility models could be applied for,
the number of applications was 2,011, 985 of which were granted.
In 1910, the corresponding figures were 14,057, and 4,358. Things
had not changed very much by 1920, when 18,543 utility models
were applied for, and 3,584 granted. In 1930, in a significant upward
swing, applications totalled 33,111, and grants 12,060. Applications
went up until 1935, but by 1940 had dropped to 30,105, when
16,535 were granted. After the post-war low, applications rose to
22,426 in 1950, with 6,365 being granted. With the Japanese econ-
omy racing along, 68,102 utility model applications were filed in
1960, and 18,208 were granted. In 1970, the figures had almost
doubled to 124,170 and 29,264 respectively. By 1980, the figures
had increased again to 185,455 applications and 44,600 grants. By
1990, however, the utility model system was past its prime. Applications
peaked at over 200,000 a year in the mid 1980s, but by 1990 they
15
K. Tamai (1992), 66.
were down to 138,294, with 44,290 grants. In 1993, immediately

before the revision of the system, 77,101 utility models were applied
for. By 1995, this figure had dropped to 14,886.
Unlike patents, utility models never had much appeal to foreign-
ers. 1928 was the first year when the number of foreign utility model
applications exceeded 100, 1958 the first year when the 1,000 bar-
rier was crossed. Even when the system was in its prime in about
1970, as few as 2,463 foreign utility model applications were sub-
mitted, less than 2% of the total. These figures confirm the thesis
that the utility model system was meant first and foremost to serve
domestic industry.
Year Applications Grants

1906 2,011 985
1910 14,057 4,358
1920 18,543 3,584
1930 33,111 12,060
1940 30,105 16,535
1950 22,426 6,365
1960 68,102 18,208
1970 124,170 29,264
1980 185,455 44,600
1990 138,294 43,300
1993 77,101 53,400
1995 14,886 63,966
Literature:
(unless contained in the general list of literature)
M. Ando, Meiji 38nen, 42nen oyobi Taishò 10nenhò ni tsuite no
jitsuyo shinan (Utility Models in 1905, 1909 and 1921), [1983] Tokkyo
Kanri 535; T. Doi, Registration and Protection of Utility Models,
[1995] Patents & Licensing 10, 7; B. Jinbo, Jitsuyo shin’an seido ron
(System of Utility Models), [1980] Tokkyo to Kigyò 2, 2; K. Kobashi,
Jitsuyo shin’anjhò kaisei no eikyò (Influence of the Utility Model
Act’s revision), 16 Kògyò Shoyùken Hògakkai Nenpò 151 [1992];
K. Kumagai, Jitsuyo shin’an seidò no mitoshi ni tsuite (Perspectives
of the Utility Model System), 16 Kògyò Shoyùken Hògakkai Nenpò
135 [1992]; N. Monya, Zur Rezeption des deutschen Gebrauchsmus-
terschutzes in Japan, in: Mitarbeiterfestschrift zum 70. Geburtstag
von Eugen Ulmer, 1973, 159; K. Murayama, Jitsuyo shin’an no igi

narabini hatsumei oyobi ishò to no kankei (Object and Invention of
Utility Models and Their Relationship With Patents and Designs),
9/2 Hatsumei 2, 21 [1912]; idem, Tokkyo, shin’an, ishò shòhyò
yonpò yògi (Four Laws on Patents, Utility Models, Designs and
Trade Marks), 1922; F. Òtsuka, Jitsuyo shin’an wa dò kangaeruka
(How Are Utility Models Perceived?), [1988] Patent 9, 52; idem,
Revision des japanischen Gebrauchsmusterrechts, [1993] Mitteilungen
der deutschen Patentanwälte 132; K. Sakamoto, Ishò—gijutsu—jòhò
(Design—Technology—Information), 12 Kògyò Shoyùken Hògakkai
Nenpò 18 [1989]; T. Shimamura, Jitsu yoshin’anhò shakugi (Com-
mentary on the Utility Model Act), 1905; K. Tamai, Tokkyo ni okeru
mushinsa shugi no fukuken? (Rehabilitation of the Principle of
Unexamined Patents), 1005 Jurist 55 [1992]; idem, Mushinsa tokkyo
toshite no saisei ka kanman na shi ka (Revival of Slow Death of
Unexamined Patents), 1007 Jurist 63 [1992]; J.K. Toyosaki, Kògyò
shoyùkenhò (Industrial Property Rights) 2nd ed. [1980]; K. Yoshifuji,
Tokkyo hò gaisetsu (Outline of Patent Law), 10th ed. [1994]; R.
Yoshiwara, Jitsuyo shin’anhò, ishòhò (Utility Models and Designs),
1928.
5.4 Design Law
Peter Ganea
1. Traditional Japanese Handicraft After the Meiji Era and the First
Attempts at Design Protection
In 1873, at a very early stage of modernisation, Japan participated

the world exhibition in Vienna. Despite the fact that Japanese prod-
ucts were still far from competitive in terms of technical sophistica-
tion and quality, the unique Japanese design captured the attention
of the international public.1 Manufacturing at a pre-industrial level
has a long tradition in Japan. Under the feudal Tokugawa regime,
handicraft trades where professional skills were passed down from
the master to the apprentice were organised into local guilds. Within
this environment, terms such as “kògei ” (handicraft) or “ishò ” (design)
were in use at a very early stage. The traditional guild system, while
severely restricting the freedom of occupational choice, granted its
members a certain legal security against counterfeiting and other
forms of unfair market behaviour and thereby enabled them to con-
duct their businesses on a high level of working morale. The new
Meiji government, however, regarded all elements of the old feudal
order as obstacles to economic development, so that after 1868 the
guild system fell victim to the modernisation policy. From the expe-
riences made at the world exhibition, the government learned that
at least the Japanese handicraft tradition was something worthy of
being revitalised and adapted to the new environment of industrial
mass production. Amongst other forms of intellectual property, a
right to the exclusive exploitation of one’s own aesthetic product
design was soon recognised as an appropriate instrument that could
help to create incentives for high quality production.
From 1876 to 1880, the Office for the Promotion of Trade, which
later merged into the Ministry of Finance, presented three draft reg-
1
Reported by participants of the so-called “Iwakura Mission” of the years
1872/1873, a world tour of government members who visited Vienna to attend the
world exhibition—see Tokkyo Chò (1985), I, 29.
design law 453
ulations on design protection. In 1876, the draft of an “Ordinance

on the License for New Forms” (Menkyo shinkei jòrei ) was presented.
The scope of protectable subject-matter under this draft was quite
broad. It was not confined to the design of mass articles. Special
mention was given to the design of sculptures, lacquerware, pottery,
textiles, etc. The examination principle, according to which before
registration, an examination as to novelty had to be passed, has been
retained until today. In 1879, a second draft of a “Ordinance con-
cerning the License to Exclusive Use of New Inventions” followed.
Its basic function was the protection of patents, but in its Sec. 10,
it contained provisions on “new forms” (shinkei ). Protectable subject-
matter under this draft provision were also “inventions related to the
new form of diverse commodities”. In 1880, another isolated draft
“Ordinance on the License to Exclusive Use of New Forms” was
published. The new draft replaced the term “invention” by the more
design-related term “creation”. Furthermore, it clearly stipulated that
designs similar to already publicly used aesthetic solutions and designs
not yet incorporated in an article, but existing only on paper, were
excluded from registration.2
2. The Design Ordinance of 1888
In the 1880s, design protection existed only in draft form, but the
flooding of the market with inferior articles and counterfeit goods
was an incentive for lawmakers to arrive at a final legal solution. As
a preliminary solution, some of the newly established unions of indus-
trial businesses have committed themselves to maintain certain qual-
ity standards, but such voluntary activities could not replace a
nationwide design law.3 On 2 December 1887, a first draft of the
coming ordinance was drawn up by the Ministry for Agriculture and
Trade: It contained the first-to-file principle, an examination as to
novelty and a classification of articles that came into question for
design protection. The design owner was obliged to mark the existence
2
Details on the drafts in Tokkyo Chò (1985), I, 46–48.
3
Tokkyo Chò (1985), I, 79.
of a design right on the article. Infringement was regarded as a crim-

inal offence which was prosecuted on complaint of the infringed
party. The Ministry of Justice added a few amendments to the draft.
Amongst other things, it clarified that a protected design shall be
related to the “form, pattern or colour” of an industrially applica-
ble article. Furthermore, the generous exhaustion rule of the previ-
ous draft, according to which the design right could not be worked
against legally sold or imported articles, was restricted to exhaustion
with regard to legally sold articles. On 16 June 1887, the amended
draft was submitted to the senate ( genròin) which slightly amended
the definition of a design4 and then passed it on to the Prime Minister.5
On 18 December 1888, the “Design Ordinance” (Ordinance No.
85) was finally enacted.
As owner of the application and registration right, the design ordi-
nance specified the immediate creator (or, in given case, his heir)
or, in case that the design was created in the course of commission
or employment, the principal or employer. This provision was of
pioneer character, because a similar provision on service inventions
was not introduced until 1909. The adoption of the so-called ser-
vice principle which favours the employee as immediate right owner
has to be seen in the context of the master-apprentice tradition which
has survived within a transformed industrial reality. An exclusive
right in the hands of the employed creator would have meant to
disrespect the employer’s long-term investment in providing his employ-
ees with skills and abilities. The protection term of optionally three,
five, seven or ten years started from the date of registration. If exam-
ination as to novelty brought to light that the design contravened
morality or that an identical design was already publicly used, the
application was to be rejected. Following the strict wording, public
use of a similar design would not have formed an obstacle to regis-
tration. This provision was somewhat contradictory to the first-to-
file principle established elsewhere in the ordinance, according to
which in the case where two parties applied for the registration of
designs not only identical with but also similar to each other, only
4
In the definition of the protected design as a “new design with regard to form,
pattern or colour to be used on an industrial product”, the term “used” was replaced
by the term “applied”.
5
Legislative preparations summarised in Tokkyo Chò (1985), I, 78–85.
design law 455
the prior applicant shall have the right to register. Another pecu-
liarity of this early regulation was design protection for typefaces.6
In 1891, an amendment clarified that designs not only identical
with but also similar to publicly known aesthetic solutions were
excluded from registration, and thereby eliminated the above-men-
tioned contradiction. Furthermore the scope of non-protectable sub-
ject-matter was clearly confined to designs identical with or similar
to the imperial emblem, designs incorporated in other than indus-
trially applicable articles or in articles not listed in the product
classification, to designs which were not predominantly related to the
form, pattern or colour of an article and to designs which consti-
tuted a mere product mark.
In the following years, textiles accounted for the majority of design
registrations.7 In general, however, Japanese manufacturers made lit-
tle use of the new, yet unfamiliar instrument of legal design pro-
tection,8 so that it is hard to determine to what extent the availability
of design protection actually contributed to the worldwide success
story of Japanese design at the turn of the century.
3. Japan’s Accession to the Paris Convention, the Design Act of 1899 and
Its Subsequent Amendments
One undesired side-effect of the intensifying worldwide trade rela-

tionships in the second half of the 19th century was cross-border
infringement of patents, designs, trade marks and copyrights. As a
countermeasure, multilateral treaties on intellectual property protec-
tion were established. The “Paris Convention on the Protection of
Industrial Property Rights” of 20 March 1883 (hereinafter “Paris
Convention”) as the first worldwide convention on industrial prop-
erty contained a number of provisions on design protection. In 1899,
Japan became a member to the Paris Convention. This accession
had nothing to do with national interests, although infringement of
Japanese design rights abroad in fact occurred. At the turn of the
6
R. Ushiki (1994), 428 et seq., presents two typeface designs registered on 26
June 1899.
7
Forty-three of the first 100 design applications were filed by the textile industry—
see Tokkyo Chò (1985), I, 125.
8
Ibid.
century, Japan was still in the position of a developing nation and

had an enormous interest in absorbing technical knowledge from
advanced western nations. International protection obligations were
therefore regarded as obstacles to industrial development. Japan’s
accession to the convention was mainly motivated by the prospect
of a reversal of the so-called unequal treaties concluded with foreign
powers at the end of the Tokugawa era.9
Because the Design Ordinance was far from meeting the stan-
dards of the Paris Convention, a new “Design Act” was enacted on
2 March 1899 (Law No. 37). The new law provided for an inter-
national priority period of three months (Sec. 10) and a grace period
in case the design was published at an official exhibition (Sec. 22,
referring to the corresponding Patent Act provision). Further provi-
sions clarified the scope of non-registrable subject matter and the
procedural rules. Registration was to be entrusted to a domestic
patent agent (Sec. 22, referring to the corresponding Patent Act pro-
vision). A new provision enabled the registration of “similar designs”
to increase the scope of the original design (Sec. 3(2)). The protec-
tion term for the original design accounted for 10 years. The pro-
tection of similar designs could not exceed this term, but expired
simultaneously (Sec. 10). Furthermore, only the transfer of an orig-
inal design which included all similar designs was registrable. Without
such registration, the transfer contract had no effect on third par-
ties (Sec. 6).10
a) The Amendment of 1909

Soon after its enactment, the Design Act proved flawed in a num-
ber of aspects. Due to the increased automation, “Japanese-style”
articles of high aesthetic value were replaced by practical commodities
of competitive quality. To adapt design protection to the changed
industrial environment, the Design Act of 1899 was amended on 2
April 1909 (Law No. 24). In the amended Sec. 1, the protected sub-
ject matter was defined in a more precise manner as “industrial
9
See the chapter on “Copyright”, subchapter 1.
10
Summarized in Tokkyo Chò (1985), I, 196 et seq.
design law 457
design”. Sec. 3(1)(ii) extended the prerequisite of novelty by stipu-

lating that also designs which were easy to realise on the grounds
of an identical or similar design described in a domestic publication,
were not regarded as novel. Misleading designs were added to the
non-registrable subject-matter (Sec. 4(2)). The restrictive Sec. 6, accord-
ing to which only transfer contracts which included all similar designs
were transferable, was abolished. Furthermore, with regard to designs
applicable to several articles, a new Sec. 11 stipulated that the design
could be separately transferred with regard to each article. As a new
limitation to the design right, parties who lost their registered right
in a similar or identical design and parties who legally obtained the
right to exploit such design, were granted the right of prior use, i.e.
the right to further exploit the design within the original scope (Sec.
10). The only possible form of transferring this right was the trans-
fer of the whole business enterprise to which it belonged (Sec. 10
with reference to the corresponding provisions of the Patent Act).
By rearranging and thereby reducing the administrative fees to one-
third, the amendment also considered the economic environment of
rapidly changing fashions and styles, leaving only a short period in
which designs could realise their full economic value (Sec. 14). Another
provision which met the specific needs of design owners was the new
Sec. 16, according to which the applicant could request his design
to be sealed during the administrative procedures and for a period
of three years after registration. The re-examination of rejected appli-
cations was conducted by the same examination authority (Sec. 19(3)).
Only invalidation requests and requests to determine the scope of
protection could be directed to a quasi-judicial review authority within
the Patent Office (shinpankan), the final instance being the Imperial
Supreme Court (Secs. 20, 21). Furthermore, an interconnection with
the Utility Model Act was established in a new Sec. 7, according to
which an unsuccessful utility model application could be re-filed as
a design application within 30 days from the original application,
the date of the original utility model application being regarded as
the date of design application.11
11
More details in Tokkyo Chò (1985), I, 319–323.
b) The Amendment of 1921 and the Development Before and After the War
Due to the intense international competition during the worldwide
economic crisis after the First World War, the design provisions were
once more adapted to the realities of large-scale industrial produc-
tion in 1921. The second amendment of 30 April 1921 (Law No.
98) clarified that only “industrial creations related to articles . . .”
(buhin ni kan suru . . . kògyòteki kòan), i.e. creations indissolubly tied with
a concrete article, were the subject matter of design protection. The
preceding provision in Sec. 1, according to which “designs . . . applied
to articles” (buhin ni junyò suru . . . ishò ) misleadingly implied that a
design might be an abstract creation that existed independently from
the article.12 By this amendment which clearly restricted protection
to designs incorporated in three-dimensional articles, design regis-
tration of typefaces were rendered impossible. An addition was made
to Sec. 8(3), according to which not only identical or similar utility
models, but also identical or similar trade marks of an earlier appli-
cation were regarded as limitations to the design right. The amended
Sec. 13 enabled the design owner to request a compulsory licence
in cases where the exploitation of his own design was dependent on
the simultaneous exploitation of a prior right (utility model or design
right), whose owner refused to license it without just cause. Another
important amendment was the shift of the initial right ownership in
service creations from the employer to the employee (Sec. 2). Further
amendments were related to administrative procedures. The re-exam-
ination system was replaced by a notification and response system
in which the examiner was obliged to inform the applicant of the
reasons for rejection and give him the opportunity to respond within
a certain period. If the rejection was upheld, dissatisfied applicants
were permitted to request a review before the “shipankan” review
authority (Sec. 24).13
In the following years, copyright protection of designs as “works
of applied art” was intensely discussed on the international stage. At
the Rome Conference on the amendment of the Berne Convention
(1928), Japan was allied with Italy in strictly opposing such protec-
tion. Even as an industrial nation, Japan showed little interest in a
12
R. Saitò (1991), 12.
13
Amendments summarised in Tokkyo Chò (1985), I, 435.
design law 459
high level of international intellectual property protection and regarded

copyright in the design of mass articles as an undue overprotection.14
The Second World War muted the international debate. During the
war, design protection was suspended by Sec. 2 of the “Special
Provisions on Industrial Property in Wartime” of 31 October 1943
(Law No. 109). Soon after the war, in November 1946, the sus-
pension of design applications was abolished by “Law No. 50/1946
on the Abolishment of the Special Provisions on Industrial Property
During the War”. On 7 December 1948, the General Headquarters
(GHQ ) instructed the Japanese government to reintroduce the reg-
istrability of designs applied for from abroad, and on 8 April 1949
to reinstitute patents, utility models and designs owned by residents
of the allied powers.15
4. The Design Act of 1959
In the fifties, the enhanced importance of product design as a core

element of modern manufacturing style was reflected by the fact that
more and more companies established their own design units. Whereas
textiles accounted for the majority of pre-war design applications, in
the mid-fifties there was a shift to electric apparatus such as refrig-
erators, radios, and televisions. Counterfeiting and imitation, how-
ever, frequently occurred and endangered Japan’s international
reputation. To increase public awareness, the MITI in cooperation
with the Patent Office held an “Exhibition on Design Protection”
from 17 to 22 June 1958, in which genuine articles were presented
alongside their imitations.16 Due to the enhanced importance of design
creation for Japan’s export-oriented trade strategy, a higher protec-
tion standard was deemed to be indispensable. On 13 April 1959,
a new Design Act was enacted.17
14
A critical statement of the national Designer’s Association of 1936 explained
the strong opposition against copyright protection with Japan’s 50-year history of
counterfeiting intellectual achievements from abroad (cited in Tokkyo Chò (1985), I,
438).
15
By Supreme Commander for the Allied Powers Instructions (SCAPIN) No.
5981 (1948) and No. 1990 (1949) summarised in Tokkyo Chò (1985), II, 20, 12
et seq.
16
Tokkyo Chò (1985), II, 215 et seq.
17
Law No. 125/1959.
a) Basic Features of the New Design Act

In Sec. 2 of the new law, designs are defined as “form, pattern or
colour or their combination, in an article, which, through visual
reception, creates an aesthetic feeling”. As new protection prerequi-
sites, worldwide novelty and non-obviousness were introduced in Sec.
3. Since then, designs already known or published abroad or designs
which are easy to accomplish on grounds of already existing aes-
thetic solutions, are excluded from protection. In Sec. 4, the grace
period of six months was extended to designs made public without
the consent of the design owner or by himself, thereby enabling him
to test the demand for his article before filing a design application.
The new law abolished the product classification18 which became
obsolete due to the introduction of the “one application—one design”
principle in Sec. 7, prohibiting several designs under one applica-
tion. Sec. 8, however, permitted a comprehensive set of articles, i.e.
more than one article normally sold and used together, under one
application. Sec. 10(2) limited similar designs to those similar only
to the registered original design. Sec. 12 enabled the applicant to
change his application of a similar design into an independent design
application and vice versa. A new Sec. 21 extended the protection
term from ten to 15 years. Sec. 23 provided the right owner with
the right to enforce not only the registered design, but also any sim-
ilar design, registered or not. With regard to infringements of the
design right, a new body of provisions (Secs. 37 to 41) regulated in
detail the civil remedies of cessation from infringement and dam-
ages, such as the particulars of evidence finding and determination
of fault.
b) Japan’s Changing Role —From Imitators to Piracy Victims

In addition to the new Design Act, a “Law on the Design of Export
Commodities” was enacted on 27 March 1959. With help of this
law, Japan intended rid itself of its bad reputation as a copycat
nation. The law listed certain commodities predestined for design
infringement as “designated articles”, and subjected those engaged
18
The product classification was regulated in Rule 10 of the Implementing Rules
to the Design Law, enacted on 29 April 1921 by the Ministry for Agriculture and
Trade (Ordinance No. 35).
design law 461
in the manufacture and export of such articles to special adminis-

trative supervision.19 In the following years, Japan asserted itself on
the world market with sophisticated products of high quality and
reasonable price. In the meantime, Japan’s role changed dramati-
cally—from a copycat nation to a country which itself was victimised
by counterfeiting, especially by Taiwan, Korea and Hong Kong.20
Japan reacted to this jeopardy by legal development assistance for
the “Asian Tigers” which—like Japan a few decades earlier—based
a good part of their development strategy on the imitation of intel-
lectual achievements from abroad.
c) The New Copyright Act of 1970 and Its Impact on Design Protection
From the very beginning of design protection, Japan has abided by
the “patent approach” which requires designs to be objectively novel
in comparison with the prior art. The alternative approach, adopted
by most European countries, would be the so-called “copyright
approach” which requires a design to be of subjective novelty in the
sense that it constitutes an independent creation. Japan has always
been keen on maintaining a strict demarcation line between design
protection for the aesthetic shape and pattern of industrially manu-
factured mass articles and copyright protection for artistic works.
However, design protection was not unaffected by the enactment of
the new Copyright Act in 1970 (see the chapter on Copyright). Due
to the addition of “works of applied art” to the catalogue of pro-
tected works under the Berne Convention, a compromise was finally
reached in Brussels in 1949, Sec. 2(2) of the new Copyright Act pro-
vided that the term “artistic works” includes “works of artistic crafts-
manship” (i.e works of applied art).21 As a consequence, the scope
of protected works was extended to objects of practical use, provided
that they were of artistic quality.22 The original intention of the
19
Tokkyo Chò (1985), II, 303 et seq.
20
Tokkyo Chò (1985), II, 477–486.
21
Following a long debate, the Brussels Conference reached a compromise which
left it to the members to introduce a system of cumulative protection under copy-
right and design law or to protect works of applied art solely by design provisions.
To works of applied art originating in countries where only design protection is
available, the principle of reciprocity is applied.
22
Kòbe District Court, Himeji branch, as of 9 July 1979, 11–2 Mutaishù 371.
legislators, however, who aimed at avoiding simultaneous protection

under design and copyright provisions, was that the design of mass
articles should remain reserved to design law protection. In the years
that followed, Japanese case law partly deviated from this original
legislative intention. On 7 February 1973, the Nagasaki District Court
(Sasebo branch) found the design of an industrial mass article pro-
tectable under copyright law,23 whereas the Tokyo High Court denied
such protection in its decision of 17 December 1991.24
For typefaces, neither design nor copyright protection is available.
Design protection is out of the question due to the requirement that
the design must be incorporated in a tangible article. Protection
under copyright is denied due to concerns that a monopoly in typo-
graphic styles may prejudice the very function of characters and let-
ters as information-transmitting media.25 In 1973, Japan attended the
Diplomatic Conference at Vienna, where the Agreement for the
Protection of Type Faces and their International Deposit was con-
cluded (12 June 1973). At this occasion, the Japanese side expressed
her readiness to grant such protection, once the national laws were
correspondingly adapted.26
5. The Reform of 1998
The stagnation of economic activity at the dawn of the nineties was

also reflected by a decrease in design applications, especially among
large-scale enterprises.27 On 6 May 1998, the design law was over-
hauled to meet the new economic realities.28
A first measure to enhance the attractiveness of design protection
was the replacement of the “similar design” application system by a
system of “related designs”. According to the 1959 Design Act, the
23
5–3 Mutaishù 18—“Hakata Doll”.
24
1418 Hanrei Jihò 120 = 25 IIC 805.
25
Supreme Court decision of 7 September 2000, 1730 Hanrei Jihò 123; the fact
that typefaces remain unprotected does not prejudice copyright protection for cal-
ligraphic creations—Tokyo District Court decision of 27 October 1999, 1701 Hanrei
Jihò 157; Osaka District Court decision of 21 September 1999, 1732 Hanrei Jihò
137.
26
Tokkyo Chò (1985), II, 574.
27
K. Sekiguchi (1998), 10.
28
Law No. 51/1998.
design law 463
registered similar design constituted an integral part of the original

design in that it enjoyed no independent protection, but had the
mere function of better demarcating the original design’s scope of
protection. Therefore, a similar design as such could not be infringed,
but only the aesthetic content that it had in common with the orig-
inal design. In contrast to this, the protection of the “related design”
is independent of the principal design to which it is related. The
advantage of an enlarged protection scope, however, was diminished
by the requirement that related designs had to be registered simul-
taneously with the principal design, whereas under the previous pro-
visions, similar designs could be registered at any time within the
protection term of the original design. This restriction aimed at dis-
burdening the Patent Office from consecutively accepting applica-
tions for related designs, but at the same time deprived the design
applicant of the opportunity to register later improvements of his
original design.29 Related designs do not cease to exist if the origi-
nal design extinguishes, but they may not be separately transferred
or licensed (Sec. 22(2), Sec. 27(3)).
Another important amendment of 1998 introduced the registra-
bility of so-called “partial designs”. So far, Sec. 2(1) defined a reg-
istrable design as “shape, pattern etc. . . . of an article”, so that the
imitation of the design of a mere part of that article constituted no
infringement, without regard to its significance for the whole article.
To close this gap, an addition was made to Sec. 2(1), according to
which the term “article” shall include the part of an article.30 A new
Sec. 3bis stipulates that a design similar to an already registered par-
tial design is not registrable. The amended Sec. 8 facilitates the appli-
cation of product set designs by abolishing the requirement that
component parts of the set must be customarily sold together.
A number of enforcement-related amendments further strength-
ened the position of the design owner. New damage calculation
methods, based either on the assumed sales in the absence of the
infringement or on the infringer’s profits, facilitate the burden of
proof of the infringed party (Sec. 39(1)(2)). The abolishment of the
previous provision of Sec. 69(2), which required a complaint for
29
Criticised by T. Morimoto (2002), 257.
30
T. Doi ( June 1998), 15, with graphic examples.
criminal action, allowed the public prosecutor’s office to initiate pro-

ceedings at its own discretion. As an effective deterrent against
infringements of industrial scale, the amended Sec. 74 provides for
a fine of up to 100 Million Yen for legal persons under the super-
vision of which an infringement occurred.
As a consequence of the enhanced protection level, the protection
prerequisites were tightened.31 In Sec. 3(2), domestic non-obvious-
ness was replaced by worldwide non-obviousness, so that designs
which can be easily accomplished on grounds of aesthetic solutions
published abroad, are no longer protectable. Sec. 5 No. 3, imple-
ments the provision of Art. 25.1 TRIPs, according to which mem-
bers may not protect designs which are dictated essentially by technical
or functional considerations.
A further amendment concerned the application procedure. Ac-
cording to the previous Sec. 9(3), a design was deemed non-existent
from the beginning if the applicant himself has abandoned or with-
drawn his application, but not if the application has been rejected
after examination or trial examination before the “shinpankan” review
authority. In examination practice, the existence of a large number
of rejected designs formed an obstacle to the novelty of later design
applications. This situation was aggravated by the fact that only suc-
cessfully examined designs but no rejected designs were published,
so that it was rarely possible for the later applicant to find out
whether a rejected similar or identical design existed.32 As a conse-
quence, the amended Sec. 9(3) provides that also designs which have
been rejected during examination or trial examination, are regarded
as non-existent from the beginning. To avoid undue hardships, a
new provision in Sec. 29bis No. 2 provides the unsuccessful applicant
with a right of prior use in his rejected design.
Literature:
T. Doi, Better Design Protection by Registration, (1)–(4), in: Patents
& Licensing June–December 1998; T. Morimoto, Ruiji ishò tòroku
seido no sòsetsu to haishi (Establishment and Abolishment of the
System of Registering Similar Design), in: Chiteki zaisanhò no keifu
(The Pedigree of Intellectual Property Law—Writings in Honour of
31
Tokkyo Chò (2001), 878 et seq.
32
T. Doi (October 1998), 24.
design law 465
Dr. Ono Shoen), Tokyo 2002, 257; H. Onda, Ishòhò kaisei no shingi
ni sanka shite (Participating at the Consultations About the Amendment
of the Design Act, Tokugikon 200 (7/8 1998), 17; R. Saitò, Ishòhò
gaisetsu (Overview of the Design Act), Tokyo 1991; K. Sekiguchi,
Dezain kaihatsu no kasseika wo neratta 40 nen-buri no ishòhò kai-
sei (The First Amendment to the Design Act since 40 years. Aiming
at Reviving the Creation of Designs) Tokugikon 200 (7/8, 1998),
10; T. Takata, Ishò (Designs), Tokyo 1969; Tokkyo Chò (ed.), Kògyò
shòyùken chikujò gaisetsu (Commentary on Industrial Property Law),
16th ed., Tokyo 2001, 871–1072 (Ishòhò—Design Law); R. Ushiki,
Ishòhò no kenkyù (Design Act Studies), 4th ed., Tokyo 1994.
5.5 Trade Mark Law
Christopher Heath
1. Before Joining the Paris Convention
Even in the days of yore, the use of trade marks was not unknown
in Japan. More common, however, was the use of trade names for
shops, in particular the naming of curtains in front of shops (noren).
Particularly gifted craftsmen would put their names on objects such
as swords or paintings.1 Apart from such artistic niceties, rules on
labelling goods were first introduced in the year 701 by a Law on
Market Regulation. The law also dealt with the proper labelling of
goods with regard to their price and origin. The regime of naming
shops seems to be older than that of marking goods. Subsequently,
certain rules were established on the correct designation of shops as
referring to the goods they sold or rather were licensed to sell. This
only changed when the freedom to conduct business was established
in the Meiji era.
The first Japanese Trade Mark Act was enacted even before the
Senbai Tokkyo Jòrei (Patent Act) in June 1884 and published as the
Dajòkan Decree No. 19. It came into force in October of the same
year.
Already in 1875, the Japanese had consulted the American adviser
G.H.F. Verbeck2 about the English and American trade mark sys-
tems. Indications of measurements and weights for goods by way of
trade marks were of special importance in preventing shoddy pro-
duction.3 Trade marks were viewed as indications of guarantee by
the seller. In 1876, a draft Trade Mark Act was prepared but not
enacted. Another draft of 1878 met the same fate.4
In 1881, Korekiyo Takahashi was asked to study industrial prop-
erty rights abroad. He examined the English, American, French, and
German systems. As a result, the view that trade marks represented
1
M. Isonaga (1986), 1283.
2
A Dutchman who had been engaged in America.
3
S. Ono (1989), 33.
4
Tokkyo Chò (1955), 84.
trade mark law 467
signs of guarantee and quality for measurements and weights of

goods5 was dropped and the principle of registration was adopted.
Takahashi came out against the first-to-use principle of the English,
American, and French law and decided in favour of the first-to-file
principle under German law. The search for prior unregistered rights
was deemed too cumbersome.6 It is interesting to note that other
industrial property laws, particularly patent laws, were modelled after
the U.S. system. Opting for the German model was thus by no
means a foregone conclusion.7
a) The 1884 Trade Mark Act

The 1884 Trade Mark Act contained 24 provisions in addition to
supplementary provisions. Its main points were the following:
(1) Upon registration in the register of the Ministry of Agriculture
and Trade, the applicant received an exclusive right for a period of
15 years.
(2) Starting with the application date, oppositions could be raised
within two months. In the absence of any opposition, the mark would
be registered.
(3) In case two marks of by different applicants were identical or
confusingly similar within the same group of goods (service marks
were unregistrable), the later application would be dismissed. If both
applications were made on the same date, both applications would
be rejected.
(4) Certain marks were unregistrable: marks that were identical or
confusingly similar to ones already registered; names of places or
persons; trade names; general indications of goods; foreign and domes-
tic flags and badges; marks that in the respective area of trade or
according to general customs could be freely used; marks that before
the enactment of the law had been used by another person or were
confusingly similar thereto.
5
Yet, already in 1884, Shirò Ono (Shòhyò jòrei kaisetsu) stated that “trade mark
protection shall be aimed against sly traders and those passing themselves off ”
(quoted in Tokkyo Chò (1955), 97). Y. Fuse (1985), 121, correctly points out the con-
nection between liberalising trade and necessity to distinguish goals from different
sources.
6
H. Nakamura (1984), 39.
7
Apparently, there was some opposition against the registration system, particu-
larly as to costs and formality requirement for protection: Tokkyo Chò (1955), 93.
(5) Transfer or extension to other groups of goods and renewals

would have to be registered.8
(6) Change of name or address, sub-lease, closure or temporary
closure of business for more than one year as well as inheritance of
business would have to be registered within three months.
(7) In case of a renewal, an application would have to be made
three months before the expiration of the protection period.
(8) Applications of signs excluded from registration or differences
between the mark applied for and the one actually used would ren-
der the application void.
(9) Cancellation of the trade mark would be automatic if busi-
ness operations ceased or if a business had not been operating for
at least three years.
(10) Criminal sanctions were to be initiated by the trade mark
owner in case of infringement and in certain other cases. Civil reme-
dies included damages and injunctive relief.
(11) The executive provisions for the registration of trade marks
published in June 1884, required five copies of the mark plus proof
of payment and other necessary documents to be submitted to the
Ministry of Agriculture and Trade via its local branches. There were
68 different groups of goods.
(12) It was acknowledged that rights over marks prior to the Trade
Mark Act could have been acquired through use “for a long time”.
b) The 1888 Trade Mark Act 9

Development in trade and industry made further legislation in the
field of industrial property rights necessary. After Korekiyo Takahashi
had returned from yet another trip abroad, advantages and disad-
vantages of different foreign legal systems were re-evaluated. As a
consequence, in December 1888 a Patent Act, a Design Act, and a
Trade Mark Act were promulgated. Together with the respective
executive provisions, these laws came into force on 1 February 1889.
The Trade Mark Act of 18 December 1888 (Law No. 86) con-
tained 28 provisions and was not amended until it was replaced by
8
Transfer was understood as including both the mark and the business estab-
lishment: Tokkyo Chò (1985) I, 91, 97.
9
While there seems to be no English translation available, a German one can
be found in A. Werner (1896), 126.
trade mark law 469
the Trade Mark Act 1899. It can be viewed as the basis of the cur-
rent trade mark system. Because the Act was conceived together with
the Patent Act, the former could relate to the latter for the proce-
dural provisions of examination, decisions, and appeals. The main
points of the Act were the following:
(1) A trade mark can be obtained for the designation of goods by
persons wanting to use the mark on their goods exclusively. A mark
should be composed of a distinctive10 graphical drawing, writing style
or a combination of both.
(2) The application would now have to be made directly with the
Ministry of Agriculture and Trade, that would forward it to the
Patent Office.
(3) Unregistrable trade marks would be signs offending good morals
and signs which predominantly would consist of a flag or another
domestic or foreign state emblem.
(4) The protection period would be 20 years from the date of reg-
istration.
(5) No cancellation in case of differences between application and
description. The trade mark would be void if it contravened provi-
sions of unregistrable marks or conflicting marks bearing the same
application date.
(6) In cases of an identical application date, should one of the
applicants withdraw his application, the remaining one could then
proceed.
(7) New regulations would be included on inheriting trade marks.
(8) A transfer could only be effected upon transferring the busi-
ness as well. While registration of transfer was no longer necessary,
registration remained a prerequisite for the right to be enforced
against third parties.11
(9) Subsequently changing the designation of goods was no longer
possible. Other changes could only be effected if the essentials of
registration remained unchanged.
10
The 1888 Trade Mark Act for the first time contained the requirement of
“distinctiveness”, although already discussed in the preparations for the previous
Act: Tokkyo Chò (1985), 93.
11
Apparently taking up the British idea that a mark representing goodwill could
not be transferred in isolation from such goodwill. This was so understood even for
the first Trade Mark Act 1885: Tokkyo Chò (1955), 91.
(10) Apart from ceasing business operations, the following grounds

would lead to an annulment of registration: non-use for the first six
months after registration; continuous non-use for a period of one
year or longer without justifiable reason; replacement of incorrect
designations concerning number and weight of goods, origin or qual-
ity of the goods after registration; attaching signs that wear off due
to continuous use.
(11) The groups of goods now numbered 66.
In 1892, the Ministry of Agriculture and Trade issued an Ordinance12
in which the criteria for unregistrability due to lack of distinctive-
ness were clarified. According to the Ordinance, marks indicating
(1) the quantity, quality or function of goods,
(2) the name or description of goods,
(3) an ordinary name, family or corporate name,
(4) the origin, or
(5) the seal of a merchant ordinarily used in trade,
were deemed to be unregistrable.
In the same year, an Ordinance on how to ascertain similarity
between trade marks was issued. According to the Circular of 1892,
similarity between trade marks should be judged not on the basis of
direct comparison, but rather bearing in mind that under normal
circumstances, goods bearing such marks would not be sold at the
same place or time, thereby limiting the scope of a trade mark right.13
In November 1896, Ordinance No. 9 of the Ministry of Agriculture
and Trade would for the first time allowed equal treatment of for-
eigners as a consequence of a German-Japanese Treaty of 4 April
1896.14
Remarkably, the period of time within which a trade mark had
to be used after registration was shortened to six months. It was felt
that monopolisation and protection of a mark could not be justified
without evidence of active efforts to use it.15 Perhaps it was also felt
that introduction of a registration system without prior use would
12
Ministry of Agriculture and Trade, Ordinance No. 19/1892.
13
H. Nakamura (1984) regards this as only a legal fiction, because both judges
and examiners under normal circumstances were quite aware where such goods
would be sold, and decided accordingly.
14
Reichsgesetzblatt 1896, 722.
15
Parliamentary debates as reprinted in: Tokkyo Chò (1955), 95/96.
trade mark law 471
open the door to undue monopolisation, something that has indeed

happened in Japan by virtue of widespread piracy registrations of
famous foreign marks, which became rampant between the 1950s
and 1980s. Of course in 1888 Japanese legislation only dealt with
domestic companies, since foreigners were not allowed to register
their marks at that time. For further information on the problem of
piracy marks, also see the chapter on unfair competition. Yet another
indication that the registration system had not yet been firmly estab-
lished can be found in the rules on prior use that prevented regis-
tration of a sign used by another person for the same goods.
By limiting the scope of trade mark rights to the use on identi-
cal goods and cutting down the initial grace period for non-use to
six months, Japanese trade mark law reflected the general trend of
industrial property rights: limitation of monopolies to the extent nec-
essary for the promotion of trade and industry.
At the end of 1898, the first Annual Report of the Patent Office
was published. It listed a total of 1,536 foreign trade mark applica-
tions, the majority coming from Germany (663) and Great Britain
(522). Marks registered in the early days of the trade mark system
and still known today include those of well-known beer companies
such as Kirin, Asahi, Yebisu, Flensburg Stock Bier, Kaiser-Bier, and
other companies such as Kodak, Dunlop and Lion.16
2. From the Paris Convention to the 1950s
a) The 1899 Trade Mark Act17
When Japan joined the Paris Convention on 15 July 1899, there

was a need for a reform of industrial property laws. The new Trade
Mark Act was promulgated in March 1899 and together with some
executing provisions came into force on 1 July 1899.
The Trade Mark Act 1899 had 24 provisions and remained
unchanged until a new Trade Mark Act was promulgated in 1909.
The executive provisions contained 18 sections, while the groups of
16
All reprinted in: Tokkyo Chò (1955), 134–140.
17
German translation in: A. Osterrieth, III (1901) 167.
goods were increased to 73. The latter provisions were amended

twice during the time the Act remained in force.
The most important features of the Trade Mark Act 1899 were
as follows:
(1) The non-distinctive features of trade marks would now be listed
in the Trade Mark Act rather than in the executive provisions.
Grounds for rejection and nullification were enumerated.
(2) New reasons for rejection and/or nullity were the following:
marks or signs that are misleading or that are confusingly similar to
other trade marks currently registered or nullified less than one year
ago, with respect to identical goods.
(3) After three years, no nullification grounds can be brought for-
ward that are meant to protect interests of individuals.
(4) Cases where nullification could be ordered by the Patent Office’s
President were enumerated (e.g. incorrect labelling through trade
marks).
(5) Non-use of a trade mark was no longer a ground for nullification,
only the cessation of business.
(6) While national registrations would be valid for 20 years, reg-
istrations by foreigners effected previously in another country would
run for as long as provided by foreign law, but no longer than 20
years.
(7) Priority registrations under the Paris Convention were accepted
if an application for registration in Japan was made at least four
months after the priority date.
(8) The time bar of three years for damage claims was repealed.
(9) The procedural provisions of the Patent Act would apply auto-
matically: final appeals to the Supreme Court, grace periods for exhi-
bitions and an application of the provisions of the Civil Procedural
Code for appeal procedures, inter alia.
The rejection due to another mark being previously used was limited
to use already begun before the new Trade Mark Act came into
force. Henceforward, registration would take precedence over use.
While the system of trade mark registration had become well-
established as the Meiji era drew to a close, activities by the courts
in enforcing trade mark rights are more difficult to ascertain. While
no decisions of the lower courts can be found (although there must
have been a good many), the works of S. Ono and the collection
of “One Hundred Leading Cases on Trade Mark and Unfair
trade mark law 473
Competition Law” published in 1967 list a total of 11 cases decided

by the Imperial Supreme Court, of which six were in criminal and
five in civil proceedings. One important case concerned the ques-
tion of whether a mark considered generic in some parts of Japan
was still registrable; this was denied by the court.18 In another deci-
sion, the Imperial Supreme Court had to decide on the better rights
of the owner of an unregistered mark used prior to the enactment
of the 1899 Trade Mark Act, with respect to a later application of
a similar mark for identical goods. The court held that the prior
user could successfully request cancellation of the subsequent regis-
tration.19 The prevailing method of determining similarity at that
time was to concentrate on the overall impression rather than to
compare individual elements.20
b) The 1909 Trade Mark Act 21

Japan had become a new superpower due to its progress in indus-
try and trade and the changes brought about after the war between
Russia and Japan. Subsequent to the ratification of the Brussels
Revision Conference of the Paris Convention, the laws on industrial
property rights had to conform to internationally acceptable stan-
dards. Thus new changes in trade mark legislation was deemed nec-
essary. In April 1909, a new Trade Mark Act (Law No. 25) was
promulgated. The executive provisions were contained in Ordinance
No. 44 in October of the same year. Both the Trade Mark Act and
the Ordinance came into force on 1 November 1909.
The new Trade Mark Act was composed of 28 sections plus addi-
tional provisions. It remained unamended and in force until 1921.
The main features of the Trade Mark Act 1909 can be summarised
as follows:
(1) The purpose for which a trade mark had to be used were pre-
viously not specified. The new Trade Mark Act contained the fol-
lowing provision: “To designate goods of one’s production, making,
18
Decision of 6 July 1903, reprinted in Hanrei Hyakusen, 22.
19
Decision of 26 September 1907, reprinted in Hanrei Hyakusen, 14.
20
Decisions of 22 September 1908 and 12 March 1909, both mentioned in
S. Ono (1989), 182.
21
The German translation by L. Lönholm (1909), 35. English comment by De
Becker (1916).
processing, selection, certification, handling or sale”. The application

could be related to one of these purposes.
(2) As a novelty, colours of trade marks could be mentioned in
the application.22
(3) The sign of the Red Cross became unregistrable. At the same
time, another person’s name or trade name became registrable, yet
only with the person’s consent.23
(4) The system of associated trade marks as known under British
law was introduced.
(5) In the case of conflicting applications made on the same date,
the applicants were asked to find an amicable solution; in the absence
thereof, both applications were refused.
(6) Transfer of a trade mark could now also be effected for cer-
tain goods only.
(7) New nullification grounds were non-use within the first year
after registration, continuous non-use for a period of three years, the
absence of a request for re-registration after a transfer and misleading
additions to trade marks.
(8) While priority under the old law was established according to
the hour of registration, the new system merely registered the day.
(9) The following changes would also remain features of the pre-
sent Trade Mark Act: nullity proceedings could be initiated either
by “interested parties” or examiners; introduction of a three-tier sys-
tem for decisions of the Patent Office, an appeal before the Patent
Office, and a final appeal before the Supreme Court; representation
before the Patent Office only through patent attorneys.
The new Trade Mark Act contained 67 different groups of goods.
It might be appropriate to introduce some decisions of the Patent
Office and the Supreme Court at this stage. For one, not least in
the absence of any specific regulation on unfair competition, trade
mark law was interpreted in a highly formalistic manner. Thus,
despite having obtained wide recognition among the general public,
the word mark “Hoka” used for perfume was denied protection
22
Colours as such were not held protectable, however: Imperial Supreme Court
Decisions 1914, 488.
23
DeBecker (1916), interprets this to include also parts of a (living) person’s
name, yet this interpretation finds little justification in subsequent decisions: S. Ono
(1994), 163. Consent was not deemed necessary where there was no danger of con-
fusion: Imperial Supreme Court Decisions 1915, 597.
trade mark law 475
against a competitor having registered the trade mark in a different

class of goods for soap.24 Indications misleading the public were con-
sidered only to the extent that there was a misleading discrepancy
between the goods and the mark, e.g. the use of a bee for artificial
honey or a grape for coloured sugar water.25 Similarity, that is,
conflict between marks, was determined according to appearance,
pronunciation and meaning.26 Similarity was also affirmed between
picture and word marks where these would refer to the same.27 This
led to difficulties where there was no unambiguous term for the
object of the figurative element.28
The view that trade marks were meant to protect the public from
misconceptions manifested itself in a number of provisions and rules:
For one, a subsequent conflicting trade mark application was rejected
ex officio regardless of a possible agreement between the owners of
the two conflicting signs.29 Trade marks could only be transferred
together with the manufacturing business. Finally, until the revision
of 1959, Japanese law did not permit licensing agreements. Such
contracts were simply deemed void. In order to protect the public
and competitors, until 1959 Japanese law also required trade marks
to be attached to the goods.30
Trade marks were registered for a period of 20 years and could
be indefinitely renewed.
Strangely enough, and contrary to Art. 6 Paris Convention, the
existence of trade marks registered under a foreign priority was made
dependent upon the continued existence of the mark in the coun-
try of origin.
24
Imperial Supreme Court Decisions 1922, 1144. The Patent Office and the
Appeal Division had decided differently: Patent Office Decisions 1920, 3545; Patent
Appeal Decisions 1921, 2124—“Hoka”.
25
Imperial Supreme Court Decisions 1912, 212.
26
Imperial Supreme Court Decisions 1910, 372.
27
Patent Office Decisions 1921, 4303: Here, one applicant had registered a pic-
ture of the Greek philosopher “Plato”, while a subsequent applicant wanted to reg-
ister the word mark “Plato”. The marks were deemed similar.
28
Imperial Supreme Court Decisions 1913, 502: Reference has to be made to
the usage by the general public.
29
H. Iizuka (1926), 81.
30
This was interpreted as a compulsory rule: Patent Office Appeal Decisions
1923, 4763.
c) The 1921 Trade Mark Act

In 1921, the Patent Act, the Utility Model Act, the Design Act, and
the Trade Mark Act were concurrently amended. The new Trade
Mark Act contained 38 sections and six additional provisions.
The most important changes were the introduction of a notification
of registrations, a notification of the reasons for rejection of an appli-
cation, the introduction of the principle of nullity procedures.
Characteristics of the new Trade Mark Act 1921 were the following:
(1) The protection of a trade mark right would now extend to
similar goods as well. Under the old provisions, protection was limited
to unsolicited use of identical goods (see the above “Hoka” decision).31
(2) A famous trade mark was now defined as: “the trade mark of
another person that is widely known amongst traders and consumers”.
Trade marks that were identical or confusingly similar or were used
for identical or similar goods could not be registered.
(3) Only such marks that were considered distinctive32 and non-
confusing could be registered.33 Non-distinctiveness could be over-
come by secondary meaning, however.34
(4) It was clarified that a renewal of trade mark rights after the
expiration of the protection period did not require a new substan-
tial examination, but could only be refused if special circumstances
existed where a renewal would conflict with the public interest.
(5) Nullification could only be effected in ordinary proceedings
before the Patent Office.
(6) Group marks were introduced.
(7) Trade mark infringement, because of its relevance to the pub-
lic interest, could now be prosecuted even without being requested
by the infringed party.
31
See, e.g. Patent Appeal Decisions 1922, 2748—“Chujoto”. Here, the Patent
Office rejected registration of a word mark in Class 43 (cakes) due to a potential
conflict with the well-known medicine registered for Class 1 under the same mark.
This was also occasionally held under the previous trade mark law, e.g. Imperial
Supreme Court Decisions 1918, 854.
32
Lack of distinctiveness, e.g. for a picture of angels for toiletry: Patent Office
33
But confusion abroad would not be considered: Imperial Supreme Court
34
E.g. the mark “Shirosagijo” (Heron Castle) for cakes after long use: Patent
Office Decisions 1913, 2630; also Patent Office Appeal Decisions 1920, 2003.
trade mark law 477
The Trade Mark Act 1921 was frequently amended. Changes were
made in 1929, 1934, 1938, 1947 and twice in 1948.
The changes of 1929, 1947 and 1948 were made in accordance
with changes in the patent law. The changes in 1934 were neces-
sary in order to implement the Hague Revision Conference of the
Paris Convention, while the changes in 1938 concerned the London
Revision Conference that had taken place in 1934.
3. The Present Trade Mark Act of 1959
In 1959, the complete system of industrial property rights again came

up for revision. Together with the other industrial property laws, the
Trade Mark Act (Law No. 127 of 13 April 1959) became effective
on 1 April 1960. The Law was subsequently amended in 1962 (Laws
Nos. 140, 161), 1964 (Law No. 148), 1965 (Law No. 81), 1970 (Law
No. 91), 1975 (Law No. 46), 1978 (Laws Nos. 27, 89), 1981 (Law
No. 45), 1984 (Laws Nos. 23, 24), 1985 (Law No. 41), 1987 (Law
No. 27), 1990 (Law No. 30), 1991 (Law No. 56), 1993 (Laws Nos.
26, 89), 1994 (Law No. 116), 1996 (Law No. 68), 1998 (Laws Nos.
51, 83, 110), 1999 (Laws Nos. 41, 43, 160, 220) and 2002 (Law
No. 24).
The main characteristics of the 1959 Trade Mark Act can be
described as follows:
(1) A trade mark was now defined as any written character, figure
or sign, or a combination of these, with or without colour. Trade
marks could be used in order to distinguish goods by persons pro-
ducing, processing, certifying or assigning such goods.35
35
Examples of descriptive marks: Tokyo High Court, 29 January 1991, 1379
Hanrei Jihò 130—“Digestive” (use for cookies); Tokyo High Court, 24 December
1992, 1471 Hanrei Jihò 143—“Jun Shòchù” (“pure liquor” held descriptive of an
alcoholic drink); the objection can be overcome by secondary meaning: Tokyo High
Court, 26 January 1993, 25 Chizaishù 1—“Kawara Soba” (“tile soba” as used for
soba noodles served on tiles); refused were also: Georgia Coffee for coffee products
produced by the Coca Cola Company: Supreme Court, 23 January 1986, 593
Hanrei Times 71; use of Waikiki for Cosmetics: Supreme Court, 10 April 1979,
927 Hanrei Jihò 233; use of Hollywood for cosmetic products: Tokyo High Court,
29 June 1967. Allowed was the registration of the mark “Tivoli”: Kobe District
Court, 27 August 1997, 48 Chizai Kanri 1067. Also indirect geographical indica-
tion are covered by this provision: Japanese Patent Office, 13 October 1991, 24
IIC 409—“Lorely” (when used for Japanese alcoholic drinks).
(2) The Act did not distinguish between absolute and relative
grounds for refusal. Any trade mark with an earlier application date
would be checked ex officio and serve as an obstacle to registration
in the same way as marks generally considered unregistrable.36
(3) The scope of a trade mark right could be broadened by reg-
istering associated trade marks similar to the original trade mark,
covering the same goods. An associated trade mark could not be
transferred separately.
(4) A new system was established whereby defensive trade marks
could be registered. Defensive trade marks were those identical to
the original trade mark, but covering different types of goods not
actually in use. Defensive registration was only possible for famous
trade marks.37
(5) One trade mark application could only relate to one group of
goods. There were 34 categories.
(6) Trade marks could be transferred and licensed, while such con-
tracts had to be registered with the Patent Office to be valid against
third parties.38
(7) For the first time, there were provisions explicitly stating the
rights of a trade mark owner in cases of infringement, and an enu-
meration of acts that were deemed infringing. As with patents, there
was a presumption as to the amount of damages.
The most important subsequent changes were the following:
(1) In 1976, in order to clear the register from unused trade marks,
the burden of proof for use and non-use was reversed. Now the
trade mark owner had to prove use in order to avoid cancellation
36
While previously, agreements between an earlier registered mark and a conflicting
application could not be solved by agreement, the matter is still unclear. According
to the Supreme Court, 22 April 1986, 1207 Hanrei Jihò 114—“Juchheim”, agree-
ments with respect to similar registered trade marks are possible: There seems to
be no decision that would affirm this matter for trade mark applications.
37
The system is meant to give enhanced protection to well-known marks, but
has proved clumsy and impractical, as it also requires third parties already using
the mark in relation to other goods or services: Tokyo High Court, 30 January
1996, 1563 Hanrei Jihò 134—“Scotch”.
38
Only registration confers exclusive rights to the licensee, however. Termination
of the licensing agreement does not necessarily give an automatic right to rectification
of the register: Tokyo District Court, 29 June 1994, 230 Hanketsu Sokuhò 6 [1994]—
“Harika”.
trade mark law 479
of his trade mark, while previously the applicant of an invalidation

action had to prove non-use.39
(2) Finally in 1992, service marks were accepted for registration.
An additional eight classes (35–42) were added to the catalogue of
34 classes of goods in order to cover all kinds of services. In order
to avoid a rush, a four-month period was allowed in which service
marks could obtain the same registration date.
(3) In the course of Japan’s accession to the Trademark Law Treaty
(TLT) on 1 June 1996, some major changes in the trade mark law
were effected. For one, the classification of goods and services was
streamlined and all registered trade marks now have to comply with
the international registration system under the Nice Agreement on
the Classification of Trade Marks. While the system of associated
trade marks was scrapped, one application could now comprise more
than one class of goods or services. In addition, three-dimensional
marks were made registrable. And in a further attempt to clear the
register of unused marks, an application for cancellation because of
non-use could now be effected not only by a “legally interested”
party, but by anyone.40 Last but not least, in deference to interna-
tional trends, opposition to trade mark applications was only per-
missible after registration.
(4) On 14 March 2000, Japan acceded to the protocol relating to
the Madrid Agreement Concerning the International Registration of
Marks. This allowed the registration of international marks in Japan
without the intermediate services of a Japanese patent attorney. It
also gave enhanced rights to mere trade mark applications prior to
39
Until 1975, non-use had to be proven by the applicant requesting cancelation,
subsequently by the trade mark owner. The period of three years refers to the reg-
istration of the cancellation demand, while use up to three months prior to the reg-
istration does not count: Sec. 50(3). The courts find token use often sufficient (Tokyo
High Court, 30 November 1987, 1385 Hanrei Jihò 117), and allow proof of use
even if only furnished on appeal before the High Court (Supreme Court, 23 June
1991, 24 IIC 523 [1993]—“Evidence of Trade Mark Use”). The screws may have
been subsequently tightened, however. According to the Tokyo High Court, 30
November 1993, 1588 Hanrei Jihò 144, use in order to prevent cancellation is
insufficient. In addition, use of a mark not identical to the registered one cannot
qualify as use. Here, use of the mark “Vuitton” was not deemed use of the regis-
tered “Louis Vuitton”.
40
The same holds true for acts of misleading use. Current attempts (2003) to
merge opposition and invalidation procedures would henceforth allow anyone to
bring an action for of invalidation.
registration. Finally, since the accession, all trade mark applications

are laid open two to three weeks after filing.
Contents and Limits

Trade marks are granted for a period of ten years, Sec. 19, and can
be indefinitely renewed. For those marks registered prior to 1997,
renewal also requires a reclassification of goods and services. The
trade mark right confers the owner an exclusive right of use (apply-
ing the mark on goods, assigning the mark, providing services under
the mark, advertising and displaying trademarked goods or services),
Secs. 25, 2(3). The exclusive rights extend to the same or a similar
mark used on the same or similar goods/services, Sec. 37(1). It is
disputed whether the standard of judging “similarity” is different
from the standard of “confusion” that has to be applied in unfair
competition cases.41 At least if there is similarity, it is up to the defen-
dant to disprove danger of confusion.42 Foreign users of the system
should be aware that pronunciation rules in Japanese often differ
from those in other languages with the result that otherwise dissim-
ilar marks become similar and vice versa. In the case of foreign
marks, the courts would generally assume English pronunciation
unless consumers pronounce the mark differently.43 Use of a regis-
tered word mark in another script (Hiragana/Katakana/Kanji/Roman
alphabet) is not deemed to make a difference under the similarity
standard, Sec, 50(1). Similarity/confusion may be affirmed more eas-
ily for words in the Roman alphabet, as the Japanese public might
be more prone to confusing these at first glance.44
Japanese case law is rich in defences against infringement. The
defendant may argue that the public associates his own enterprise
rather than the plaintiff ’s with the registered mark,45 that the plaintiff
41
The first view is taken by Tokyo District Court, 3 August 1981, 1042 Hanrei
Jihò 155—“Seiko”, the second by Tokyo District Court, 27 October 1966, Fusei
Kyògyòhò Hanreishù 945—“Waikiki Pearl”.
42
Osaka District Court, 9 October 1990, 22–3 Mutaishù 651—“Robinson
Helicopters”.
43
Supreme Court, 11 July 2000, 1721 Hanrei Jihò 141—“L’Air du Temps”: sim-
ilarity judged by the French pronounciation, as the customers of such French per-
fumes were well aware of the French pronounciation.
44
Tokyo District Court, 24 March 1993, 26 IIC 566—“Type Channel No. 5”.
45
Kobe District Court, 21 December 1982, 14–3 Mutaishù 813—“Dorothee Bis”.
trade mark law 481
uses the mark in a manner different from registration and thereby

causes confusion,46 or that the defendant has better rights.47 Infringe-
ment further requires trade mark use.48 Acts are lawful that do not
impede the function of the trade mark, e.g. in the case of parallel
imports49 or comparative advertising unless they cause confusion.50
– Hanrei Shòhyòhò (Cases on Trade Mark Law), Tokyo 1991;

– K. Port, Japanese Trade Mark Jurisprudence, London 1998;
– S. Ono (ed.), Shùkai shòhyòhò (Commentary on Trade Mark
Law), Tokyo 1994;
Literature:
M. Amino, Shòhyò, 2nd ed. Tokyo 1977; idem., Shòyòhò no shomondai,
Tokyo 1978; J.E. DeBecker, Pointers on Japanese Trade Marks,
Yokohama 1916; M. Isonaga, Wagakuni ni okeru shòhyò no kigen
to sono hensen ni kan suru ikkò satsu (Examination of the Origins
and Changes in Trade Mark Law), 36 Tokkyo Kanri 1283 [1986];
S. Kiyose, Eigyòteki hyòshò enkakushi (On the Development of
Business Identifiers), in: Ono- FS (2002), 277; K. Kudo, Genkò
shòhyòhòjò no shomondai no gaikatsu (General Issues of Current
Trade Mark Law), 35 Tokkyo Kenkyù 36 [2003]; H. Nakamura,
Shòhyò tòroku seido sono 100nen no rekishi (100 Years of History
46
Supreme Court, 13 October 1981, 14 IIC 429—“MacDonalds III”: Here, the
plaintiff had registered the mark “Mac” “Burger”, but actually used “MacBurger”.
The same applies if the registered mark is used for other goods or services and
thereby causes confusion: Tokyo High Court, 18 July 1996, 28–3 Chizaishù 668—
“Trappistine”.
47
Supreme Court, 20 June 1990, 25 IIC 118—“Popeye Scarves III”: rights based
on prior copyright.
48
Which is denied in cases where the mark is used as a promotional tool rather
than an indication of origin: Osaka District Court, 24 February 1976, 8–1 Mutaishù
102—“Popeye T-Shirts II”, or as the title of a song: Tokyo District Court, 22
February 1995, GRUR Int. 1995, 607—“Under the Sun”.
49
Osaka District Court, 27 February 1970, 2 IIC 325—“Parker”; Tokyo District
Court, 7 December 1984, 1141 Hanrei Jihò 143—“Lacoste”; Nagoya District Court,
25 March 1988, 1277 Hanrei Jihò 146—“BBS Trade Mark”.
50
Tokyo District Court, 28 January 1980, GRUR Int. 1980, 526—“Sweet Lover”.
of the Trade Mark System), 81–6 Hatsumei 38 [1984]; S. Ono,

Shòhyòhò gaisetsu, Tokyo 1989; S. Ono (ed.), Chùkai Shòhyòhò,
Tokyo 1994; A. Osterrieth, Die Patent-, Muster- und Markens-
chutzgesetze III, Berlin 1901; T. Shibuya, Shòhyòhò no riron, 1973;
Hanrei Shòhyòhò (Festschrift Murabayashi), Tokyo 1991.
unfair competition law 483
5.6 Unfair Competition Law
Christopher Heath
1. The Early Meiji Period
Regulations against unfair competition only become necessary once

there is a competition to be regulated. From a competitors point of
view, this was not the case as long as business practices were con-
trolled by guilds which regulated the behaviour of craftsmen and
merchants.1 For this reason, no regulations against unfair competi-
tion were enacted until society and the economy in Japan were lib-
erated to a certain extent by the Meiji restoration. In addition, it
should be noted that during the Tokugawa period the merchant
caste was held in very low esteem2 and therefore little official atten-
tion was given to the regulation of trade ethics.3
Regulations on unfair competition were also missing from the
agenda of laws considered suitable for adoption from Western coun-
tries at the end of the last century. This was due not to a lack of
recognition,4 but rather to a political decision to support Japanese
industry in its attempts to catch up with the West. Copying Western
technology was seen as a necessity for technological development.
Passing Japanese goods off as foreign ones generally held in higher
regard by consumers was a welcome boost.5 Concern for consumer
protection was non-existent.6
1
See, e.g., F.K. Beier, (1979), 183; J. Kohler (1914), 33.
2
Sumiya/Taira (1979), 56.
3
Only the guilds set their own rules as self-governing bodies: Takekoshi, The
Economic Aspects of the History of the Civilization of Japan, Vol. 3, London 1967,
251.
4
One of the most influential foreign law professors in Japan in the last century
was the Frenchman Boissonade, who had certainly told his very receptive audience
about the development of French unfair competition law from the general clause
in the Code Napoléon.
5
Y. Someno (1959), 19–21.
6
This was due to the relentless push for industrial growth without regard to con-
sumer interests or environmental concerns, but also had something to do with the
fact that no one at ministerial level was actually in charge of consumer protection.
The organisation that came closest to representing consumer interests was the Fair
Trade Commission, established by the U.S. occupation in 1947: H. Iyori (1990),
228 et seq.
As a consequence of the Franco-German War in 1870–71, French

influence in Japan slowly waned, while German influence rose. A
French-influenced Civil Code failed to pass the Diet in 1879. On
the other hand, German legal thought at that time had not given
much attention to protection against unfair competition and certainly
had promulgated no legal remedies against it.
After the enactment of the Japanese Civil Code in 1895, the courts
were unable or unwilling to make the general tort clause of Sec.
709 a tool against acts of unfair competition, basically for three rea-
sons: First, until a groundbreaking decision of 1925, the Japanese
Supreme Court in accordance with German doctrine required an
absolute right to be infringed before it would grant a remedy under
tort law.7 Japanese courts, however, have consistently refused to
regard the right to do business (eigyòken) as an absolute right.8 Second,
the courts refused to grant injunctive relief against unlawful acts
under tort law.9 At least initially, German courts had taken a simi-
lar view.10 And third, protection under intellectual property rights
was deemed sufficient to protect inventive or creative activities.11
2. Accession to the Paris Convention
In contrast with its neglect of unfair competition, Japan supported

legislation to protect intellectual property rights almost from the start
of the Meiji period and recognised its link with technical and eco-
7
This changed with the Imperial Supreme Court decision of 28 April 1925, 4
Minshù 670—“Daigakuyu”.
8
Decision by the Osaka District Court, 27 February 1970, 2 IIC 325 [1971]—
“Parker”.
9
S. Arima (1924), 508. With some narrow exceptions for cases of an infringe-
ment of personality rights or torts in connection with environmental pollution, this
position is still taken today: see the decision by the Tokyo High Court, 17 December
1991—“Decorative Veneer”, 25 IIC 805 [1994].
10
Before the enactment of the German Civil Code on 1 January 1900, the
German Reichsgericht had to apply the French Civil Code in cases coming from
Baden and Alsace, but unlike the French courts the German ones refused to grant
proper protection against acts of unfair competition: Reichsgericht, decision of 2
July 1886, reprinted in J. Kohler (1914), 55, who remarks: “One is surprised about
such jurisprudence that lacks any deeper understanding of the character of such
legal instrument” (57).
11
G. Rahn (1986), 496; Tokkyò Chò (1955), 105.
nomic progress.12 The first Patent Act was promulgated already in

1871. While intellectual property rights were established in order to
help the country and Japanese industry to progress, legislation against
unfair competition was deferred for the same reason.
When Japan was obliged to join the Paris and Berne Conventions
in 1900 in order to obtain a revision of the “unequal treaties” between
Japan and several Western nations, the move also in fact accom-
modated Japan’s interest in attracting foreign investment.13 Already
in 1899, Japan had concluded a bilateral treaty with Germany (not
a member of the Paris Convention at that time) for national treat-
ment in the field of intellectual property rights. Yet despite pressure
especially from the United States and France, Japan refused to join
the Madrid Agreement on the Suppression of Misleading Indications
(1891), which would have forced her industry to stop labelling its
products as foreign-made. Although the French government pointed
out the link between the Paris Convention and the Madrid Agreement
and Japan’s obligation to join the latter as well, the Japanese Govern-
ment replied that “a pledge was made to join any treaty that has
been ratified by all superpowers, but not to join an agreement such
as the Madrid Agreement which has been ratified only by some of
these powers”.14
In 1909, France again invited Japan to join the Madrid Agreement.
After due consideration, Japan declined again, offering the following
reason:
“Most Japanese exports go to countries that have not joined the
Agreement, while on the other hand misleading indications of origin
from member countries are rare, the main export markets of Japan,
China, the U.S., and Germany, the latter being the country where
the most misleading indications of origin have become known (espe-
cially earthenware sold in China) have not yet joined the Agreement.
Japanese industry is still at the stage of copying and imitation. The
normal domestic consumers prefer foreign goods, for which reason a
number of domestic producers label their goods misleadingly as for-
eign goods. Japanese industry is still in its infancy and has little expe-
rience of exporting, so confidence in its products is low and it is very
12
G. Rahn, (1983), 459 et seq.
13
N. Monya, Zur Rezeption des deutschen Gebrauchsmusterschutzes in Japan,
in: Mitarbeiterschrift für Eugen Ulmer, 1973, 159.
14
Tokkyo Chò (1955), 103.
difficult to find markets for goods labelled as “made in Japan”—

therefore misleading indications of origin are not infrequent. For these
reasons, to join the Agreement and to adopt these regulating the afore-
mentioned acts would be of very little practical use for promoting the
Japanese economy, but would rather be an impediment”.15
At the Washington Revision Conference of the Paris Convention in
1911, the member-states agreed upon the inclusion of two provisions
(Arts. 2 and 10–2) which obliged them to provide for remedies against
acts of unfair competition, but further attempts, especially by France,
to see that these vaguely worded provisions were enforced were
rejected.16 Also in 1911, the Ministry of Agriculture and Trade
unveiled plans for an Unfair Competition Act which with its enu-
meration of unlawful acts, was partly modelled at the German act
of 1896.17 By then, however, Germany had already moved ahead
with the enactment of a completely new Unfair Competition Act in
1909 that for the first time provided for a general clause against all
acts of unfair competition. This remarkable change, which Japan
(and also the U.S. and Britain, for that matter) are still agonising
whether to follow even today, had been brought about by a change
of legal thinking pioneered by Josef Kohler.18 Interestingly enough,
a Japanese 1911 draft Bill included a provision for the protection of
trade secrets.19 This was dropped, however, because the Japanese
government did not see a real need for legislative change in this area.
15
Tokkyo Chò (1955), 103, 104.
16
Actes de Washington 53 [1911]; Actes de la Haye 475 [1925].
17
It is interesting to note that some Japanese authors ascribe the base of the
Japanese Unfair Competition Act to the German legislation of 1909: T. Doi (1974),
3. This is certainly not true, because Japanese legislation explicitly rejected a gen-
eral clause. The rudimentary protection under the old German Act of 1896 (and
perhaps the limited understanding that courts gave to its provisions) made this model
much more attractive to the Japanese: S. Arima (1934), 24. However, even the
German Unfair Competition Act of 1894 contained a “minor” general clause against
unfair advertisements (now Sec. 3 German UCA).
18
Recht des Markenschutzes, 1884; also: Gierke, Der Rechtsgrund des Schutzes
gegen den unlauteren Wettbewerb, Zeitschrift für gewerblichen Rechtsschutz IV
[1895], 109.
19
Art. 8 of the 1911 draft: “A person who diffuses or uses a secret used in trade
concerning the forms, samples, production method or other technology shall resti-
tute the damage caused”: reprinted in Tokkyo Kenkyù No. 5, 42.
3. After World War I
After World War I, preparations for the Versailles Peace Treaty also
touched upon the question of whether a general duty to join the
Madrid Agreement should be stipulated. Here again, the Japanese
side was dragging its feet: “If all allied nations can agree to this,
Japan can agree as well. But, if so, a provision will need to be added
to protect existing trade customs. Furthermore, a grace period should
be included”.20 At the end of the day, in Japan such a general oblig-
ation was not held to be appropriate.
Finally, the Hague Revision Conference of 1925 agreed that all
member-states of the Paris Convention should enact measures against
unfair competition until the follow-up conference to be held in
London.21 This meant that Japan no longer had any excuse for defer-
ring the enactment of an unfair competition law. Yet, Japan’s hesi-
tation continued. While the first major work on unfair competition
law was published in 1924 22 and another draft of an Unfair
Competition Act was published in 1926 in order to accommodate
the obligations under the Paris Convention, this still failed to muster
enough support in the Diet and was not enacted. Changes were
made in the Commercial Code, however, to protect trade names.
As the follow-up conference in London came closer (it was post-
poned until 1934), the Japanese government had to move fast in
order to fulfil its obligations. In 1934, just before the London
Conference, it enacted an Unfair Competition Act and ratified the
changes agreed at the Hague Conference. To be sure, the Act
was not meant to be applied, but was rather meant to suggest that
the minimal requirements of the Paris Convention had been com-
plied with.23
20
Tokkyo Chò (1955), 104.
21
Although the first pledge to prevent acts of unfair competition was introduced
to the Paris Convention in 1900, only the amendment in 1925 obliged the mem-
ber states to provide for clearly defined measures against clearly defined acts of
unfair competition.
22
S. Arima (1924) had written a remarkable treatise, basically comparing and
evaluating foreign laws against unfair competition.
23
G. Rahn in this connection talks about fuzzy logic: enact a law to avoid for-
eign sanctions, but decline to apply it domestically in order to avoid unwelcome
results at home: 25 IIC 345 [1994].
4. The Unfair Competition Act of 1934
The Unfair Competition Act 1934 contained a meagre six provi-

sions: It was illegal to
(a) use another manufacturer’s widely known indication insofar as
this would lead to confusion;
(b) use a trade name on goods insofar as this would lead to con-
fusion about the origin;
(c) damage the reputation of another manufacturer’s goods;
(d) use official symbols, flags of foreign countries, etc., as trade
marks.
Against offences (a)-(c), damages and injunctive relief were available,
while the offence (d) was made a criminal one. In case of (c), a suc-
cessful plaintiff could require a defendant to take measures for the
restoration of the plaintiff ’s business reputation, particularly an
apology.
While the scope of the Act was narrow enough already, by being
confined to just four possible types of offences/infringements, its
efficacy was almost completely beggared by a provision which required
any plaintiff and prosecutor to prove that the offence/infringement
was deliberate. To top it all, a further provision (only scrapped in
1994) exempted conduct that constituted a legitimate exercise of
industrial property rights. It is perhaps not too much of a specula-
tion to interpret the latter provision as a protection for trade mark
pirates,24 though due to a very restrictive jurisdiction, the provision
has only been successfully invoked in a single case,25 mostly being
rejected as an “abuse” of rights.26
It is clear from the Protocols of the Paris Convention that there
should have been protection against all acts of unfair competition
rather than only those that were mentioned as specific examples in
Art. 10bis Paris Convention.27 Therefore, the Japanese Unfair Compe-
24
J. Toyosaki (1971), 378. Already Y. Someno (1959), 19–21 voiced doubt about
the use of this provision, particularly because foreign brand names and brand goods
were clad with the image of high class also because of the high tax duties levied
on these goods.
25
Decision of the Supreme Court of 18 January 1990, 1990/12 Hatsumei 83—
“Marine Gold”.
26
G. Rahn (1986), 529.
27
Even at the Conference in Washington in 1911, some delegations objected to
tition Act fell well short of complying with international obligations.28

Although the Paris Convention does not require the enactment of
specific legislation against unfair competition,29 the general clause of
the Japanese Civil Code (Sec. 709) falls short of effective protection
because the courts have been unwilling to grant injunctive relief in
addition to damages.30
5. Changes Under the Allied Occupation
Subsequent changes were dictated by the allied (de facto the U.S.)
occupation, which scrapped the requirement that only deliberate
infringement could be prevented and in the San Francisco Peace
Treaty of 1952 obliged Japan to ratify the Madrid Agreement.31
Nevertheless, the Unfair Competition Act was little known and was
seldom invoked.32 The first major work on the Act was published in
1961.33 The only major area of application was the protection of
well-known marks (including service marks) against unauthorised use
for identical or similar goods. Later on, this was extended to dis-
similar goods if the reputation of a well-known indication was at
stake.34 Japanese court decisions have been helpful insofar as they
have more or less scrapped the confusion requirement and held
that dilution of a well-known trade mark was sufficient to warrant
an enumeration of acts considered unfair for fear that such enumeration would
exclude all others: Actes de Washington, 305–310. In the expert meetings preced-
ing the Hague Conference, it was clear that the term “unfair competition” was not
to be understood as being limited to the particular abuses specified in Art. 10bis:
S. Ladas (1930), 696.
28
S. Arima (1934), 25 interpreted the requirement of legislation against unfair
competition as meaning the protection of “fair play” in business and explicitly men-
tions the protection of trade secrets and prevention of undue monopolies.
29
Actes de la Haye 475 [1925].
30
See the decision “Decorative Veneer”, above fn. 9, 56.
31
Tokkyo Chò (1984), 323.
32
M. Miyake (1969), 296 lists the cases under the Unfair Competition Act before
the Tokyo District Court. He comes up with the following numbers: 1961–1968,
63 main actions and 103 interim proceedings. As a comparison, he mentions 661
main actions and 668 interim proceedings under industrial property rights legisla-
tion. Only after a decision to open the Unfair Competition Act to acts of dilution
of famous marks (see below) in the mid-1960s did the law become more attractive.
Still, until about 1990, the number of law suits was comparatively small.
33
S. Ono (1961).
34
M. Miyake (1969), 307 et seq.
action.35 The other provisions, however, found very little application.

Since only entrepreneurs could sue under the Unfair Competition Act,36
affected consumers enjoyed no protection against misleading infor-
mation on contents, origin, or quality. Since competitors could rarely
prove the precise extent of their own damages when misleading indi-
cations were used, the provision was not very helpful. The same is
true of a provision, enacted in 1958, which made registration of a
foreign trade mark by a domestic agent unlawful. Since the court
required a previously established legal relationship in order to apply
the provision, pirates simply registered the trade mark while negotiations
were still going on.37 On the other hand, courts were very strict in
protecting the business reputation of competitors who had—incor-
rectly—been accused of infringing another’s intellectual property rights.38
6. Complementary Legislation
Although falling short of complying with the requirements of Art.

10bis Paris Convention, the Japanese Unfair Competition Act was in
conformity with the obligations under the Paris Convention insofar
as the scope of protected parties was concerned. The Unfair Com-
petition Act was meant to protect competitors and the competition
order as such, but not consumers. Although court decisions at times
hinted a broader scope of protection,39 the prevailing judicial view in
the absence of any explicit legislative indication was that “it is likely
that the Unfair Competition Act prohibits acts considered contrary
to the economic order because protection of such economic order is
the purpose of this Act”.40
35
Decision of the Tokyo District Court of 30 August 1966, 461 Hanrei Jihò
25—“Yashica”. Finally confirmed by Supreme Court, 10 September 1998, 1655
Hanrei Jihò 160 [1998]—“Snack Chanel III”.
36
K. Kobashi, Fusei kyòsò bòshi soshò ni okeru genkoku (Standing in Suits Based
on the UCA), 1005 Jurist 21 [1992].
37
Decision of the Tokyo High Court of 22 December 1983, 15–3 Mutaishù 832
[1983]—“Casite”.
38
See, e.g., decision of the Osaka District Court 22 July 1993, 1994/1 Patent
95—“Rice Seedling Mat”: a sort of no-fault liability.
39
Decision of the High Court Tokyo of 29 July 1974, 6/7 Keihan Geppò 814
[1974]—“English Garment”.
40
Decision of the Sendai High Court of 12 February 1992, 793 Hanrei Times
239 [1992]—“Earthbelt”.
On the other hand, consumer protection was deemed particularly

necessary in cases where competitors were unlikely to stop anti-com-
petitive behaviour because damages could not be proven.41 This was
particularly so in the case of unlawful or confusing indications of
goods concerning the contents, origin, or function.42 In fact, mis-
leading indications of that sort where initially perceived to be the
domain of a trade mark law that indeed was meant to protect con-
sumers as well.43 In order to protect consumers and to complement
protection under the Unfair Competition Act, cancellation of a reg-
istered trade mark can be requested by anyone on condition that
the trade mark is used outside its registered scope, that the use leads
to confusion as to quality or origin, and that such confusing use is
done intentionally (Art. 51(1) Trade Mark Act).44
Although it is difficult to pinpoint when the Japanese government
actually became interested in enhancing consumer protection, short-
ages between, during and after World War II proved a fertile ground
for all sorts of imitations and substitutes that particularly in the case
of home-brewed Sake could have deadly consequences.45 Yet, apart
from cases of tax evasion and concerns for public health, there was
little the authorities could do until in 1947 the Japanese Fair Trade
Commission was established for the purpose of “prohibiting private
monopolisation, undue restraints of trade and unfair trade prac-
tices . . . in order to foster free and fair competition, strengthen the
initiative of entrepreneurs . . . and thereby protect the interests of con-
sumers in general and the democratic and healthy development of
the economy” (Sec. 1 Anti-Monopoly Act).46 Unfair trade practices
41
Already advocated by Y. Someno (1958), 151 on the basis of Japan’s acces-
sion to the Madrid Agreement on the Suppression of Misleading Indications.
42
Less than ten cases have been published applying this provision.
43
In the early days before and after the Meiji Restoration, trade mark law was
regarded as correctly indicating the origin of goods from a certain shop (noren), and
to ensure a correct labelling of goods in terms of weights and measurements:
G. Rahn (1986), 495.
44
See the decision of the Supreme Court of 23 June 1991, 24 IIC 523 [1993]—
“Evidence of Trade Mark Use” with comment.
45
“Il est donc difficile de dire quand et comment la première imitation est apparut
et pour quelle sorte d’article. Toute fois, la plupart des gens s’accorde pour dire
que cet attitude s’ait acceler pendant les années quarante . . .” M. Suzuki (1982),
208.
46
Shiteki dokusen no kinshi oyobi kòsei torihiki no kakuho ni kan suru hòritsu,
Law No. 54 of 14 April 1947, current version as of Law No. 107/1992.
as defined by Sec. 2(9) Anti-Monopoly Act also include inducement

and fraudulent offers to consumers.47 Very soon, the FTC was
confronted with a number of cases that involved either undue, mis-
leading or incomplete indications,48 exploitation of certain methods
of sale, or else undue premiums and gifts.
When in the beginning of the 1960s horse meat was sold for beef
and lotteries got out of hand, the Free Gifts and Trade Misrepresenta-
tions Act49 was promulgated protecting both consumers and com-
petitors and containing provisions on both free gifts and trade
misrepresentations. Enforcement of the Act is the exclusive domain
of the Fair Trade Commission that also has the power to authorise
self-restricting agreements by certain industries.
Both under the Anti-Monopoly Act and the Free Gifts and Trade
Misrepresentations Act, the FTC has been given the power to pro-
mulgate guidelines or legal opinions on specific industries or behav-
iours. In particular, the FTC has published:
– legal opinion on unfair business practices in franchising;50
– guidelines on misleading forms of advertising;51
– legal opinion on comparative advertising;52
– legal opinion on sales below cost;53
– guidelines on misleading representations concerning the origin
of goods.54
47
Specified in the two FTC Guidelines on Unfair Trade Practices (Fukòsei na
torihiki hòhò, of 1953, and in its current version as of 18 June 1982).
48
FTC decision of 16 June 1967, 2 KTIH 265/269—indication as “pure but-
ter”, although this was untrue; FTC decision of 31 May 1967, 2 KTIH 199—
“made from fresh lemons”, although in fact made from citrus acid and water; FTC
decision of 20 August 1964, 1 KTIH 62/65—“contains sugar”, although in fact
saccharine was used; FTC decision of 22 February 1962, 2 KTIH 151—offer of a
trip to Hong Kong upon purchase of a television. In fact, the two items were not
cheaper than when purchased separately; FTC decision of 12 April 1968, 3 KTIH
136—indication as a bargain sale, although the items were sold for there regular
price; FTC decision of 20 December 1947, 3 KTIH 6—sale of a contraption to
make people taller, although in fact rather a health hazard.
49
Futò hyò hinrui oyobi futò kyòji bòshi hò, Law No. 134/1962 as of Law No.
44/1972.
50
Franchise system ni kan suru dokusen kinshi kò jò no kangaekata ni tsuite, 20
September 1983.
51
Otori kòkoku ni kan suru hyòji, 28 April 1993.
52
Hikaku kòkoku ni kan suru dokusen keikin hyòji hòjò no kangaekata, 21 April
1987.
53
Futò renbai ni kan suru dokusen kinshihò jò no kangaekata, 20 November 1984.
54
Shòkin no gensan koku ni kan suru futò na hyòji, 16 October 1973.
Annually, between 1,000 and 2,000 informal warnings are issued by

the prefectural governments in Japan on matters of premiums and
misrepresentations.55 Formal decisions in this area are rare, and only
once has there been criminal prosecution of a repeated offender
against rules on premiums.56
7. Protection of Commercial Achievements
a) With the growing sophistication of the Japanese market, the

legislative framework against unfair competition proved too narrow
in a number of cases. These cases mostly concerned the protection
of commercial achievements. While jurisdiction had made clear that
the right of business was nothing that could be protected in absolute
terms (see above fn. 9), the courts were willing to protect famous
trade marks even without any serious danger of confusion (above fn.
35), or to grant protection against blatant acts of slavish imitation.57
In another classical field of commercial achievements, trade secrets,
the courts were less willing to grant protection against third party
infringers and refused injunctive relief outside the narrow scope of
contractual obligations.58
All three areas of law—protection of trade secrets, famous trade
marks, and protection of achievements against slavish imitation—
were subject to subsequent legislative changes.
b) After protection of trade secrets against third parties had been
effectively denied by the above Waukesha decision, pressure grew
on Japan to enact proper provisions for the protection of trade secrets.
Japan finally complied by changing the Unfair Competition Act in
1990, including a provision for the protection of trade secrets against
unlawful use and misappropriation.59 However, protection of trade
secrets was basically rendered ineffective by the constitutional require-
ments of conducting trial sessions in open court. As there are no in
55
Statistics are provided by the FTC in 501 Kòsei Torihiki 58 (59) [1992].
56
Decision of the Tokyo High Court of 29 January 1972, 17 KTIS 232.
57
Decision by the Tokyo High Court of 17 December 1991, 25 IIC 805 [1994]—
“Decorative Veneer”.
58
Decision of the Tokyo High Court of 5 September 1966, Doi Digest 1971,
92—“Waukesha”.
59
Law No. 66/1990.
camera proceedings and case records can be inspected by anyone,

trade secrets would certainly be lost once it comes to a trial.60 Some
change in this respect has now been brought about by a revision of
the Code of Civil Procedure in 1998, but only with regard to the
availability of court minutes to third parties.
c) To date, the last major change of the Unfair Competition Act
was an overhaul in 199361 (effective since 1 May 1994). This left the
Act’s structure unchanged, but included two new provisions neces-
sitated by court decisions: first, the protection of famous marks (reg-
istered or not) against unauthorised use even if there is no danger
of confusion, and, second, the protection against unauthorised copy-
ing of goods down to the last millimetre (so-called slavish imitation
or, in Japanese legal slang, “dead copy”).
Therefore, familiar well-known marks (local recognition is sufficient)
are protected against unauthorised use insofar as there is a danger
of confusion, while famous marks (nationwide recognition is neces-
sary) are protected against unauthorised use even if there is no dan-
ger of confusion. A protection against slavish imitation serves as a
certain protection of investment, but does not apply to technical fea-
tures, only aesthetic ones.
Although so far Japan has resisted including a general clause into
its Unfair Competition Act, international pressure for it to do so is
growing. At the end of 1995, the WIPO has published a Draft Unfair
Competition Act for adoption by all those countries that still lack
effective legislative machinery in this field. The draft contains a gen-
eral clause and a number of specified acts that should be regarded
as unfair. Since Sec. 709 Civil Code cannot serve as a proper pro-
tection against unfair competition in those cases that fall outside the
scope of the Unfair Competition Act, Japan will have to enact a
general clause in order finally to comply with its obligations under
the Paris Convention. At least it is an encouraging sign that the leg-
islative change in 1994 was brought about not by foreign pressure
(as had been the case earlier), but by domestic needs.
60
Decision of the Tokyo District Court of 24 September 1991, 769 Hanrei Times
280 [1992]—“Copper Sheeting Device”.
8. Latest Developments
a) One minor change of 18 September 1998 related to prohibit-

ing acts of bribing a foreign government official (now Sec. 10–2),
an amendment made in order to comply with an OECD resolution
of 17 December 1998 by 33 countries.62 The amendment should be
of minor importance only, since the provision does not cover the
case of bribing Japanese government officials (although the bribed
official does not necessarily have to be a foreigner).
b) Of greater importance is a legislative change promulgated on
23 April 199963 that adds two new provisions of the list of prohib-
ited acts in Sec. 2(1), plus a couple of definitions in Sec. 2(5) and
(6). The prohibited acts relate to the circumvention of hardware or
software devices meant to prevent unauthorised copying of video,
audio or other programs either in general (Subsection 10), or out-
side the permitted sphere of use (Subsection 11). The additional
definitions under Sec. 2(5) and (6) refer to “technical limitation mea-
sures”, and “programs”.
The amendment reflects obligations under the WIPO Performances
and Phonograms Treaty adopted on 20 December 1996 that in Art.
18 provides for “obligations concerning technological measures”.
According to this provision, “contracting parties shall provide ade-
quate legal protection and effective legal remedies against the cir-
cumvention of effective technological measures that are used by
performers or producers of phonograms in connection with the exer-
cise of their rights under this treaty and that restrict acts, in respect
of their performances of phonograms, which are not authorised by
the performers or the producers of phonograms concerned or per-
mitted law”. Since the use of audio or video recordings may not
necessarily be a copyright infringement (e.g. the material is not copy-
righted, the act is one of private use, etc.), the acts of circumvent-
ing anti-copying devices is not necessarily a contributory copyright
infringement.64
61
Law No. 47/1993.
62
Tsùsanshò (MITI) (1999), 38; further details are provided by M. Matsumoto
(1999), 43. The OECD resolution was made on 20 November 1997.
63
Law No. 33/1999.
64
See the report prepared by Tsusanshò (1999), 38. Nonetheless, the Copyright
9. Enforcement Figures
It is not easy to say how many cases have been decided by the
Japanese courts invoking principles of unfair competition law. One
of the standard works by Toyosaki/Matsuo/Shibuya, 1980, lists a
total of 183 cases since 1945: 132 by the District courts (Tokyo 60,
Osaka 45, and others 27), 41 by the High courts and 10 by the
Supreme Court.65 The two digests on Japanese court decisions con-
cerning trade marks and unfair competition by Doi provide for a
total of 18 cases between 1953 and 1976.66 The most complete list
of cases is provided by Ono (1994) listing a total of 553 cases up
to the end of 199367 of which 27 were decided before the enact-
ment of the Unfair Competition Act, almost exclusively by the Imperial
Supreme Court. The number of post-war Supreme Court decisions
listed by Ono is 51, although the number of cases he mentions goes
well beyond the scope of the unfair competition law as such.
A book published in 1992 on decisions in the field of unfair com-
petition68 lists a total of 56 “leading cases” on unfair competition
law between 1959 and 1991. Of these, 14 were issued by the Supreme
Court, 8 by the High Courts (4 from Osaka, 2 from Tokyo, and 2
from Sapporo), and finally 34 from the District Courts (16 from
Tokyo, 9 from Osaka, 3 from Kobe, 3 from Kyoto, 1 each from
Yokohama, Kanasawa and Hokkui).
The judiciary’s internal statistics kindly supplied by judge (as he
then was) Toshiaki Makino indicate an increase in newly received
intellectual property cases at the District Court level from 315 in
1989 to 556 in 1998, at High Court level from 49 in 1989 to 143
in 1998. Of the IP cases received in 1998 by the District Courts,
Act in 1999 was also amended to prohibit the marketing of anti-copying devices.
Contributory copyright infringement has been recognised in principle by Osaka
High Court, 27 February 1997, 1624 Hanrei Jihò 131 [1998] = 30 IIC 468 [1999]—
“Karaoke Snack Bar II”. Here, the lessor of Karaoke equipment was even held
jointly liable for copyright infringements by the use of copyrighted music on the
equipment. Liability of barkeepers for performances of guests had already been
established by Supreme Court, 15 March 1988, 1270 Hanrei Jihò 34 [1988]—
“Cat’s Eye”.
65
Toyosaki/Matsuo/Shibuya (1982), 8 et seq.
66
Doi, Digest 1971, cases 25–32, and Doi, Digest 1980, cases 31–40.
67
Ono (1994), 419–434.
68
Hanrei Fusei Kyògyòhò, Writings in Honour of Dr. Ono, 1992.
28.1% concerned patents, 10.3% utility models, 20.3% copyrights,

13.8% trade marks and 23.0% unfair competition matters. These
statistics indicate how important an area of law has become that in
the first 30 years of its existence hardly numbered any case at all.
The activities of the Fair Trade Commission in the area of pre-
venting acts of unfair competition under the Anti-Monopoly Act and
related laws is more difficult to guess. Including unfair activities by
trade associations, the FTC has issued about 500 formal warnings
against unfair business practices including those of trade associations.
However, the number of informal warnings is estimated to be ten
times as much. Under the Free Gifts and Misrepresentations Act,
the FTC and the local prefectures issue an estimated 1,000–2,000
informal warnings per year.
This sounds like a lot, but it is not much when compared to the
about 15,000–20,000 court actions and the even higher number of
warning letters issued by consumer associations in Germany under
the Unfair Competition Act each year.69
– Hanrei fusei kyòsò bòshi hò, Shin Nihon Hòki, Tokyo 1978 et
seq. (loose-leaf );
– Hanrei fusei kyògyò hò, Hatsumei Kyòkai, Tokyo 1992.
– C. Heath, The System of Unfair Competition Prevention in
Japan, London 2001;
– S. Matsuda, Fusei kyògyò hò no kenkyù, Hatsumei Kyòkai,
Tokyo 1985.
– S. Ono, Fusei kyòsò bòshi hò gaisetsu, Yuhikaku, Tokyo 1994,
438 pages.
– S. Ono (ed.), Shùkai fusei kyòsò bòshi hò (Commentary on the
Unfair Competition Prevention Act), Tokyo 2000;
– Y. Tamura, Fusei kyòsò bòshi hò, Yuhikaku, Tokyo 1994;
– Toyosaki/Matsuo/Shibuya, Fusei kyòsò bòshi hò, Dai-ichi Hòki,
Tokyo 1982.
– Tsusanshò, Chikujò kaisetsu fusei kyòsò bòshi hò, Yuhikaku,
69
G. Schricker, Deregulierung im Recht des unlauteren Wettbewerbs?, GRUR
Int. 1994, 586 (587).
Tokyo 1994.
– T. Yamamoto, Shin fusei kyòsò bòshi hò, Hatsumei Kyòkai,
2nd ed. Tokyo 1997.
Literature:
S. Arima, Fusei kyògyò ron (Writings on Unfair Competition), Tokyo
1924; idem., Fusei kyòsò bòshi hò ni tsuite (On the Unfair Competition
Act), Hòritsu Jihò vol. 6 no. 7 [1934], 24; T. Doi, Digest of Japanese
Court Decisions on Trademarks and Unfair Competition Cases,
Tokyo 1971; idem., Unfair Competition Law of Japan, I (Patents &
Licensing December 1974, 3); II (Patents & Licensing February 1975,
5); III (Patents & Licensing April 1975, 2); J. Eguchi, Various Aspects
of the Development in the Law of Unfair Competition, 19 Osaka
Law Review 1 [1972]); A. Horie, Madrid Jòtei ni tai suru senzen
no nihon no taido (On Japan’s Prewar Stance regarding the Accession
to the Madrid Agreement [On the Repression of False and Misleading
Goods], 16 Tokkyo Kenkyù 54 [1993]; H. Iyori, A Comparative
Analysis of Japanese Competition Law, in Coing (ed.), Die Japani-
sierung des westlichen Rechts, Tübingen 1990, 227; Kògyò Shoyùken
Kenshùjò (Training Institute for Industrial Property Rights), Fusei kyòsò
bòshi hò seitei kanren shiryò (Materials on Establishing Legislation
Against Unfair Competition), I (Tokkyo Kenkyù No. 5 [1988], 40);
II (Tokkyo Kenkyù No. 6 [1988], 48); III (Tokkyo Kenkyù No. 7
[1989], 58); IV (Tokkyo Kenkyù No. 8 [1989], 58); V (Tokkyo
Kenkyù No. 9 [1990], 49); VI (Tokkyo Kenkyù No. 10 [1990], 39);
VII (Tokkyo Kenkyù No. 11 [1991], 33); VIII (Tokkyo Kenkyù No.
12 [1991], 45); IX (Tokkyo Kenkyù No. 13 [1992], 12); X (Tokkyo
Kenkyù No. 13 [1992], 44); T. Matsumoto, Fusei kyòsò bòshi hò
wo torimaku saikin no dòkò (Recent Developments of the UCA in
a Nutshell), 204 Tokugikon 43 [1999]; M. Miyake, Fusei kyòsò bòshi
hò kankei soshò (Claims Related to Unfair Competition Law), in:
T. Suzuki/A. Mikazuki, Jitsumu minji soshòhò kòza (Structure of
Civil Procedural Law), Vol. 5, 1969, 295; S. Ono, Chùkai fusei kyòsò
bòshi hò (Explanations on Unfair Competition), 1961; G. Rahn,
Japan, in: Schricker/Stauder (ed.), Handbuch des Ausstattungsrechts,
1986; G. Rahn/C. Heath, What is Japanese about the Japanese
Unfair Competition Law, 25 IIC 343 [1994]; Y. Someno, Fusei kyòsò
bòshi hò (Unfair Competition Law), I (8 Tokkyo Kanri 147 [1958]);
II (8 Tokkyo Kanri 196 [1958]); III (8 Tokkyo Kanri 253 [1958]);
IV (8 Tokkyo Kanri 309 [1958]); V (9 Tokkyo Kanri 18 [1959]);

M. Sumiya/K. Taira, An Outline of Japanese Economic History,
1603–1940, Tokyo 1979; M. Suzuki, Une approche systematique du
problème de contrefaçon au Japon, 130 RIPIA 202 (208) [1982];
J.K. Toyosaki, Unfair Competition in Japan, 2 IIC 372 [1971];
Tsusanshò (MITI), Fusei kyòsò bòshi hò no ichibu wo kaisei suru
hòritsuan (Explanations on Plans to Change the UCA), paper pub-
lished April 1998 = 7 Copyright 38 [1999]; Wagatsuma, Fusei kyòsò
bòshi hò (Unfair Competition Law), Hòritsu Kyòkai Zasshi vol. 52
No. 5 [1934], 909.
5.7 Copyright Law
Peter Ganea
I. Regulations Prior to the Old Copyright Act
Soon after Japan was forced by U.S. gunships to open her harbours
in 1854, a group of leading modernizers replaced the weak Samurai
bureaucracy in the course of the Meiji Restoration. They recognised
the importance of acquiring not only superior technical knowledge
from Europe and the United States, but also of promoting creativ-
ity and motivating the individual. The new ruling class proclaimed
a preliminary constitution on 3 March 1868, containing five articles
all of which aimed at developing Japan by exploiting the vigour of
the individual regardless of social class.1 After centuries of complete
isolation, scholars went abroad in great numbers and brought home
all kinds of new knowledge and ideas. Among them was Yukichi
Fukuzawa, one of the most famous contemporary modernizers, who
introduced the concept of copyright to Japan.2 Fukuzawa soon became
a victim of innumerable unauthorised reprints of his works and trans-
lations. He therefore urged the authorities to regulate the printing
market and to prosecute infringers. The Publication Statute (Shuppan
Jòrei ) was enacted in May 18693 to his satisfaction.4 The statute was
a combination of censorship and protection of publishers and authors
with strong emphasis on copyright registration formalities. The term
of protection was limited to the lifetime of the author, but could be
extended upon request of his relatives. Explicit protection was given
to translations of foreign material, clearly a measure for promoting
the importation of western knowledge. Punishment for unauthorised
1
G. Rahn (1990), 59: The five articles encouraged any individual to participate
constructively in public discussion, to acquire knowledge from outside Japan and
contribute to the welfare of the state, and provided for the right of self-realisation
and abolished former traditions.
2
N. Itò (1976), 28 et seq.: Fukuzawa translated the English “copyright” into
“licence for storing printing plates” (zòhan no menkyo) in his famous work “The
Situation in the West” (Seiyò jijò ).
3
Translation of the Statute into French by L. Lönholm (1900): Chapter “Collection
de la legislation sur les droits d’auteur”, 1–6.
4
N. Itò (1976).
copyright law 501
reprints was harsh: All printed material and the printing machinery
was to be seized and damages were to be paid to infringed authors
and publishers. The competent authorities for copyright were two
appointed imperial schools, later incorporated into the Ministry for
Education (Monbushò ). Fukuzawa seized the opportunity and brought
a number of cases concerning piracy and plagiarism before the court.5
He did not even hesitate to accuse harmless school teachers who
ordered reprints for educational purposes.6 Not least due to Fukuzawa’s
rigidity, an amendment to the Statute in 18727 weakened the lia-
bility of those engaged in printing educational material by stating
that fines against fraudulent printers should only be imposed after
“consideration of the state of affairs”.8 Another amendment followed
in September 1875, accompanied by penal provisions.9 This was the
first time the word hanken (printing plate right) was used as another
translation of the English term “copyright”. The administrative com-
petence for copyright issues was shifted to the Ministry of the Interior,
placing stronger emphasis on controlling the dissemination of ideas.10
The notice hanken menkyo (copyright license) had to be marked on
the work, otherwise it fell into the public domain. A first concept of
moral rights protection was introduced by prohibiting modifications
which prejudiced the interests of the original author. Furthermore,
the scope of protection was extended to authors of musical works
(Art. 27). In 1876 a similar statute covered property rights in pho-
tographic works.11 The copyright for photographs of landscapes, per-
sons and other objects was granted for a term of five years. This is
said to be the result of successful lobbying by Shinji Matsuzaki, a
famous photographer who demanded copyright protection for the
photos of the native population of Taiwan and their living environ-
ment, taken under adventurous circumstances during the Japanese
invasion in 1874.12
5
N. Itò (1976).
6
Criticised by N. Itò (1976), 29.
7
Statute of 13 January 1872, translated by L. Lönholm (1900), 6–11.
8
Due to the introduction of compulsory education in August 1872, the print-
ing industry was urgently needed to meet the demand for schoolbooks, see Kurata,
197 Copyright [1977], 6.
9
Statutes and penal provisions of 13 September 1975, translated by L. Lönholm
(1900), 12–27.
10
See Y. Kurata, 199 Copyright [1977], 5.
11
Statute of 17 June 1876, translated by L. Lönholm (1900), 28–30.
12
Y. Kurata in 198 Copyright [1977], 14.
The separation of copyright protection from publication control

in 1887 represented a great step forward. Three new statutes con-
cerning the copyright in literary works (Hanken Jòrei ), dramatic scripts
and sheet music (Kyakuhon Gakufu Jòrei ) and photographs (Shashin
Hanken Jòrei )13 replaced the preceding regulations. The new statutes
also required copyright registration and a notification of hanken shòyù
(copyright ownership) on the work. They contained regulations con-
cerning formalities, protected works, transferability, term of protec-
tion (five years post mortem auctoris), content of copyright (moral rights
protection against mutilation of the work and against fraudulent use
of authors’ names and work titles, economic rights protection against
unauthorised reproduction, publication and performance of works
and against unauthorised vending and exporting of printed goods),
legal proceedings and penal provisions. The statute concerning dra-
matic and musical works is said to have been influenced by the
German Literary Copyright of 1870, a translation of which was pub-
lished by the Ministry of the Interior in 1887 together with trans-
lations of the other German laws governing copyright of arts and of
photographs.14 The Copyright Statute of 1887 was transformed into
the Copyright Act (Hanken Hò ) in 189315 without any major changes.
Up to this stage, implementation and development of the copy-
right system was the result of efforts both by individual right hold-
ers and official development strategy.16 Very soon, Europeans became
aware of a flourishing intellectual and cultural life in Japan heavily
influenced by the free use of imported works from Europe. Foreign
pressure with demands for international copyright protection fol-
lowed. Such unilateral demands became possible as Japan, facing
foreign gunship diplomacy, had signed the so-called unequal treaties
with a number of European states in the late Tokugawa era. The
treaties provided for loss of tariff autonomy, and, particularly humil-
iating, consular jurisdiction for foreign residents. Due to a lack of
diplomatic finesse, the Japanese side failed to limit the duration of
13
Issued on 28 December 1887, translated by L. Lönholm (1900), 31–47.
14
T. Yoshimura, 350 Copyright [1990], 10–11.
15
Issued on 13. April 1893, translated by L. Lönholm (1900), 47–59.
16
According to R. Mizuno, father of the 1899 Copyright Act, regulations on
copyright were the result of a natural domestic development without any foreign
influence. See N. Itò (1976), 122 et seq., who does not agree to Mizuno’s view.
copyright law 503
these treaties, thus enabling the foreign parties to impose one con-
dition after the other, and forcing Japan to modernize its legal and
economic system according to their demands by promising to abol-
ish parts of the treaties. One condition of this type was the acces-
sion of Japan to the Berne Convention, signed in trade agreements
with Great Britain (1893) and Germany (1895), who on their behalf
promised Japan to abolish consular jurisdiction.17
II. The Old Copyright Act of 1899
Both trade agreements faced strong objections from domestic indus-

try, which regarded international protection as a barrier to the import
of culture. To the Government, this was the lesser evil compared to
the continued consular jurisdiction. A high ranking official, Rentarò
Mizuno, was sent to the U.S. and Europe to learn about the different
concepts of copyright. He brought home not only deep insights, but
also an attitude towards copyright protection quite contrary to the
official point of view. According to his few records, he supported
the idea of an “international copyright”, granting the same rights to
anyone in the world regardless of national borders.18 His point of
view must have been a very lonely one. When the Copyright Act
was round the corner, public criticism mounted to such a degree
that Government had to make reprisals on those who had access to
media.19 In 1899, Mizuno finally presented his draft of the Copyright
Act, now called Chosakuken Hò (Author’s Right Law) which repre-
sented a remarkable shift to the continental European concept of
copyright.
It was quite a modern statute, combining all relevant matters of
copyright protection in one single law. Mizuno himself confessed that
this new law was mainly influenced by German and Belgian ideas.
A closer view does not reveal many similarities to these two European
countries’ copyright laws, however.
The law was divided into four chapters, the first of which regu-
lated the rights of copyright owners in written, oral, artistic, scientific
17
The relevant passages of the treaties in JASRAC, Vol. I (1990), 71.
18
R. Mizuno, Bankoku hanken hogo dòmei ni tsuite (About the International
Treaty for the Protection of Copyright), JASRAC, Vol. I (1990), 77–90.
19
Y. Kurata, 215 Copyright [1979], 6.
and musical works. Term of protection was 30 years post mortem auc-
toris. The Second Chapter listed infringing acts as gisaku (fake), which
may be seen as comparable to the Belgian contrefacon, also a fictional
term for all kinds of copyright infringement. The Third Chapter
dealt with penal provisions outside the Criminal Code, that would
also have called for flogging for copyright infringers, that was a pun-
ishment considered unduly harsh at that time.20 The Fourth Chapter
provided transitory measures.
III. The Situation Before the Second World War
A particularly controversial provision was Section 7, which provided

that the translation right would lapse if the original author or right
holder did not publish a translated version of the protected work
within ten years of the first publication. Article 5 Berne Convention
at first limited the translation right in similar fashion, but during the
1908 Berlin Revision Conference, the Japanese delegation was unable
to prevent the abolishment of this limitation. Therefore, Japan had
to make an unpopular reservation against full protection of the trans-
lation right.21 This reservation was upheld until Japan’s accession to
the 1954 Brussels amendment to the convention in 1974.22 Another
reservation also maintained an earlier version of the Berne Convention
that deprived foreign authors of musical works of the right of pub-
lic performance unless there was special mention of copyright reser-
vation on the music sheets. Due to heavy foreign pressure during
the 1928 Rome Revision Conference, Japan abolished this reserva-
tion in 1930. On the same occasion, the new right of broadcasting
was also introduced, giving European collecting societies the oppor-
20
Governmental document “Chosakukenhò riyùsho” (Explanation to the Copyright
Act), missing name of authority and date of issue, reprinted in JASRAC, Vol. I
(1990), 91–93.
21
Circular of the Foreign Office and the Ministry of the Interior About the Issues
of Reservation Against and the Date of Ratification of the Berlin Treaty from Nov.
13, 1908 for the Protection of Literary and Artistic Works, reprinted in JASRAC,
Vol. I (1990), 114–115; details about the controversial discussion during the Berlin
Conference in R. Mizuno: Berurin ni okeru chosakuken hògò bankoku kaigi no
jòkyò (The Events at the International Conference for Copyright Protection in
Berlin). Taiyò 6/1908, reprinted in JASRAC, Vol. I (1990), 107–109.
22
See S. Yatsui (1985).
copyright law 505
tunity to demand remuneration for public performance and radio

broadcast of foreign musical works. The following decade of copy-
right development would become known as “Whirlwind Plage”, a
reference to Wilhelm Plage, a German representative of two European
collecting administration associations. Plage tried at all costs to extract
high amounts of remuneration for the performance, broadcast and
recordal of European musical works.23 Because of his rigid attitude,
he soon stood alone against a nationalistic alliance of government
officials, artists and representatives of the cultural industry. The
conflict resulted in two so-called anti-Plage laws.
The first anti-Plage measure was the amendment to Sec. 30(8),24
allowing broadcasting organisations and places of public entertainment
such as dance halls to broadcast and play back sound recordings
without paying a license fee to the copyright owners. This reac-
tionary measure lived on in the New Copyright Act of 1971, which
until 1999 allowed all kinds of bars and restaurants not primarily
engaged in musical performances to play recorded music without
obtaining permission from or paying remuneration to the right hold-
ers.25 The amendment also introduced a new Third Chapter con-
cerning publication rights, regulating the contractual relationship
between author and publisher. A third issue was the treatment of
phonogram producers as copyright holders, as discussed below.
The second measure was the Act on Intermediary Business Con-
cerning Copyrights,26 allowing only Japanese collecting societies to
collect fees for the commercial use of copyrighted musical works. No
representatives of foreign collecting administrations were admitted.
Instead, foreign societies had to negotiate with the newly founded
Japan Society for Rights of Authors and Composers ( JASRAC). It
23
A detailed overview on Wilhelm Plage’s activities in Japan in S. Oie, (1981);
P. Ganea (1998).
24
Partial amendment of the Copyright Act, as of 1 May 1934, Law No. 48.
25
Until a High Court decision of 1988 (Cat’s Eye decision, Hanrei Times 663,
95 et seq.; Hanrei Jihò 1270, 34 et seq.), Karaoke bars relied on this remnant of
the old anti-Plage-revision. According to Art. 14 of the Preliminary Provisions in
the new law, Karaoke bars were not specifically mentioned among those localities
mainly engaged in music (who had to pay), and therefore not obliged to pay remu-
neration to rightholders, see H. Saitò in 425 Copyright [1996], 20–29; Y. Tanaka
in 431 Copyright [1997], 23–28.
26
Chosakuken ni kan suru chùkai gyòmu ni kan suru hòritsu as of 5 April 1939, Law
No. 617.
is said that Kòichirò Kunishio, founder of the Act in Intermediary

Business, adopted not only the German Act on Intermediary Business
Concerning Music Performance Rights of 1933 but also its function
of expelling undesired lobbyists and agents from abroad.27
Important copyright revisions were forced on Japan not only due
to foreign pressure. There was also a vivid domestic interest in
effective copyright protection, documented by a number of cases
prior to the Second World War, one of which led to an important
revision: the case had a long history, starting with the transfer of a
copyright of a certain Tochùken Kumoemon in the recording of his
improvised speech in ancient naniwa bushi style to a phonogram enter-
prise in 1912. In the following years, the enterprise successfully
brought a number of piracy cases before different courts,28 but sub-
sequently the Imperial Supreme Court decided that phonogram piracy
did not constitute infringement, mainly on the grounds that an impro-
vised speech was not to be seen as a copyrightable musical work,
and at that stage there was no legal basis to proceed against unau-
thorised duplication of sound recordings.29 The decision was heavily
criticised and lead to a Copyright Act amendment in 192030 that
included performances as copyrighted works in the legal definitions
of Sec. 1. According to the new Section 32–3, the unauthorised
reproduction of sound recordings was regarded as gisaku-infringement.
In the course of the so-called anti-Plage amendments of 1934, the
provisions governing unauthorised phonogram reproduction were
replaced by Section 22–6 relating to the new copyright of making
sound recordings and Section 22–7 that granted phonogram pro-
ducers the status of copyright holders.31
IV. The Situation During and After the Second World War
During the Second World War, the military government deprived

Japan of its rich cultural life. Everything concentrated on military
27
N. Koizumi, GRUR Int. 1998, 579–583.
28
Details in N. Itò, (1976), 72–82.
29
Imperial Supreme Court decision as of 4 July 1914, in Chosakuken hanrei kenkyùkai
(Research Group on Copyright Cases), Saishin chosakuken kankei hanrei shù
(Collection of Recent Copyright Cases), 1986, 168–190.
30
Law No. 60/1920.
31
K. Yamamoto (1969), 242 et seq.
copyright law 507
defence. Censorship was again the major element in the regulation

of the culture market.32 During the post-war occupation, the United
States GHQ government from 1946 to 1949 in Japanese eyes appeared
harsh and incompetent in copyright affairs.33 On 1 March 1956,
Japan became a member of the new World Copyright Treaty (1952),
which from now on regulated copyright relationships between Japan
and the United States (then not a member to the Berne Convention).
A remarkable amendment to post-war copyright law called for high
fines and the introduction of jail sentences to oppress the thriving
piracy of printed matter in 1958.34 All other amendments concerned
preparatory corrections of the existing law in anticipation of a com-
prehensive law revision.35 Due to rapid technological developments,
the industrial fixation of sounds and images as well as broadcasting
to the masses had become possible. A new concept of neighbouring
rights granted protection for those mainly engaged in making works
commercially available to the public. Gramophone producers were
themselves not “authors” in the sense of copyright, yet required pro-
tection for a return on their investment in the mass dissemination
of music. Having recovered from the hardship of war as an eco-
nomically powerful nation made Japan again the target of foreign
demands for adequate remuneration. Also, Japan strived to regain
its international reputation, which included efforts to comply with
international copyright requirements. In the 1950s and 1960s, the
Old Copyright Act proved only compatible to the 1928 standard of
the Berne Convention and of the World Copyright Convention (1952),
requiring a ragbag of additional provisions in order to keep pace
with technological and international changes. A new copyright law
to meet the challenges of future developments was urgently required.36
In 1962, the Ministry of Education, since the end of the war again
32
See the list of prohibited musical works, mainly from Great Britain and the
United States, published as “Beiei ongaku no tsuihò” (Abolishment of music from
the United States and Great Britain) by the Cabinet Information Department on
27 January 1943, reprinted in JASRAC, Vol. II (1990), 97–102.
33
See N. Itò (1976), 245 et seq.
34
Law No. 155/1958.
35
Most of the post-war revisions had preliminary character and subsequently
extended copyright duration to avoid exhaustion of rights in expectation of a forth-
coming comprehensive copyright law revision, which should also provide for the
international duration level of 50 years—see N. Itò (1976), 247–249.
36
M. Katsumoto (1975), 118 et seq.
responsible for copyright issues, established a Copyright Council

(Chosakuken Shingikai ). The Council presented a first draft in 1966,
which after a number of corrections was finally accepted by Parliament
on 28 April 1970 and issued on 6 May 1970.37 The New Copyright
Act came into force on 1 January 1971.
V. The New Copyright Act—Basic Concept
The New Copyright Act is divided into eight chapters; General

Provisions (Secs. 1 to 9), Rights of Authors (Secs. 10 to 78), Right
of Publication (Secs. 79 to 88), Neighbouring Rights (Secs. 89 to
104), Compensation for Private Recording (Secs. 104–2 to 104–10)
Settlement of Disputes (Secs. 105 to 111), Infringement (Secs. 112
to 118) and Penal Provisions (Secs. 119 to 124). Section 1 delineates
the objective of the Copyright Act, which is to preserve and make
compatible the right of authors (copyright), of performers, phono-
gram producers and broadcasters as disseminators of works (neigh-
bouring rights), and of the public interest in securing cultural
development. Section 2 is a broad collection of legal definitions,
which proved to be a useful means for the introduction of new legal
and technical terms in later revisions.38 The scope of protected works
became broader, now including cinematographic works and maps.39
The moral rights of making an author’s unpublished work available
to the public (Sec. 18), integrity of author’s name (Sec. 19) and of
the work (Sec. 20) became clearly separated from the economic rights
in exploiting the work. Section 59 states that moral rights are not
transferable.40 Due to this subdivision into transferable economic
rights and non transferable moral rights, we find the dualistic copy-
right conception dominating in the new law,41 also reflected by the
37
Law No. 48/1971.
38
T. Doi (1992), 93; the author characterises the New Law as “designed to be
a flexible copyright statute able to cope with new problems that may occur as tech-
nology develops”.
39
See M. Katsumoto (1975), 125.
40
Details in G. Rahn, Quellen des Urheberrechts. Japan/I (1984).
41
H. Saitò in Chosakuken kenkyù 4/1971, 76 et seq.; M. Handa, 7th ed. (1991),
199–236, finds some remarkable reasons for basing the new copyright law on a
monistic concept, thereby adopting the theory of E. Ulmer in postulating a core
right, inalienably belonging to the person of the author, and a number of economic
copyright law 509
fact that the moral rights of authors last forever (so-called droit moral
perpetuel). The term “derivative work” was introduced in Section 28,
leading to a clearer terminological distinction between the rights of
the author of such a subsidiary work and the original author.42
Authorship in cinematographic works (Sec. 16) is assigned to all con-
tributors, unless they are contributing as employees and are thus sub-
ject to Section 15, which provides authorship for the legal person
or employer. Section 29 regulates the ownership of copyright in cin-
ematographic works, providing full copyright for the producer of
such a work and assigning only moral rights to other contributors
such as directors or cameramen as co-authors (Sec. 64). Sec. 29–2
provides special rules for broadcasting organizations as copyright
owners of cinematographic works intended for TV broadcast, although
they are also endowed with a new neighbouring right in exploita-
tion of their broadcast (Subchapter 4 of Chapter IV of the new law).
The provisions for neighbouring rights43 also helped to repeal the
quasi-authorship of phonogram producers in their phonograms accord-
ing to the old Copyright Act. A great handicap to the rights of per-
formers is the lack of rights in audiovisually fixed performances, a
topic vividly discussed in today’s information age.44 Chapter III con-
cerning publication rights harmonises the rights and interests of
authors and publishers, providing the latter with more favourable
conditions concerning publication terms compared to the publica-
tion provisions introduced in the old Copyright Act in 1934.45 A
large part of the copyright law is dedicated to limitations on copy-
right (Secs. 30 to 50), regulating in detail the forms of free use of
works for non-commercial purposes. Finally, following the Brussels
revision of the Berne Convention, the term of protection for authors
was extended to a full 50 years post mortem auctoris. For owners of
neighbouring rights, the term of protection was subsequently extended
from 20 years in 1970 to 50 years today.
subsidiary rights, that may be transferable but cannot prejudice the core right—see
E. Ulmer (1960), 98 et seq.
42
M. Katsumoto (1975), 130 et seq.
43
Details about the Japanese neighbouring rights system in P. Ganea (2000).
44
Matsuda; Hamaguchi in 436 Copyright [1997]; K. Bandò in 437 Copyright
[1997].
45
Details in M. Katsumoto (1975), 146 et seq.
VI. Subsequent Developments of the Copyright System
Japanese copyright law has subsequently evolved mostly in reaction

to international requirements and new technologies, as detailed below:
(1) Accession to the Paris version (1971) of the Berne Convention46 and the
World Intellectual Property Organization (WIPO, founded in 1967) on 24
April 1975.
(2) Accession to the Paris revision of the World Copyright Treaty (1971)
on 21 October 1977.
(3) Copyright Act amendment on 18 May 197847 due to accession to the
Geneva Convention for the Protection of Producers of Phonograms Against
Unauthorised Duplication of Their Phonograms on 14 October 1978, expand-
ing neighbouring rights protection to foreign phonogram producers
from member states of the treaty (Sec. 8(3)(v)).48
(4) Preliminary Copyright Act revision on 2 December 1983,49 introducing
the rental right for domestic right owners: The amendment was directly
prepared and enacted by Parliament due to concerns about heavy
losses caused to right owners by the growing phonogram rental indus-
try. The final revision of 25 May 1984,50 regularly presented by the
Copyright Council, became effective on 1 January 1985. According
to the amendment, authors were granted an exclusive rental right
(Sec. 26–3), which preliminarily does not apply to the rental of mag-
azines and books (Sec. 4–2 Supplementary Provisions). Performers
and phonogram producers were also granted an exclusive rental right,
the exclusivity of which, however, was limited to a maximum of one
year after first publication—for the rest of the protection term, their
rental right was reduced to a mere remuneration right (for per-
formers: Sec. 95–3; for phonogram producers: Sec. 97–3). Despite
this limitation, the rental right of neighbouring right owners caused
the first serious collision of the interests of authors and phonogram
producers. Due to a tacit agreement between right owner groups
and the Copyright Council, neighbouring right owner organisations
46
After accession to the Brussels revision on 12 July 1974.
47
Law No. 49/1978.
48
Y. Shimizu (1987), 320 et seq.
49
Law No. 76/1983.
50
Law No. 46/1984.
copyright law 511
promised not to enforce their rental right with regard to phono-

grams, but to accept a remuneration instead. Some phonogram pro-
ducers, however, disregarded this promise and sued a number of
rental shops.51 Foreign demands for granting rental rights to for-
eigners were held off by referring to domestic problems that had to
be resolved before extending rights to foreigners.52 On May 1991,
the rental right was extended to phonogram producers being resi-
dents of member states to the Geneva Phonogram Treaty and to
the Rome Convention.53 The wording of Art. 14 Para. 4 TRIPs
Agreement has been a commitment to the earlier Japanese solution
of remunerating phonogram producers and performers. According
to this provision, a member that had already in force a system of
equitable remuneration for the rental of phonograms instead of an
exclusive right to authorise such rental, could maintain such system.
(5) Introduction of computer program protection on 14 June 1985:54 Discussions
about computer program protection began in 1970 and soon led to
controversial proposals from the Cultural Affairs Agency and the
Ministry of Trade and Industry (MITI).55 Protection measures were
urgently needed, evidenced by a number of precedent cases mainly
concerning the piracy of video games.56 A compromise between the
copyright-related draft of the Cultural Affairs Agency and the posi-
tion taken by MITI that preferred sui generis software protection, was
reached in March 1985. Both administrations jointly presented a sin-
gle draft to Parliament. The following law amendment introduced
the “program” ( jap. puroguramu) as a new type of protected work
(Sec. 10(1)(ix)). Algorithms, rules or programming languages are
excluded from software protection (Sec. 10(3)). In the absence of
other contractual agreements, the employer of the software devel-
oper is seen as author of the program (Sec. 15(2)). Modifications of
51
See Zadankai (chat round) of JASRAC representatives in JASRAC, Vol. II
(1990), 307–312.
52
S. Matsuoka in Copyright 1989, 152–159; T. Kudò in 365 Copyright [1991],
2–15.
53
Law No. 63/1991; Japan acceded to the Rome Treaty in 1989 (see below).
54
Law No. 62/1985.
55
Details in G. Rahn, GRUR Int. 1984, 117–222.
56
T. Doi (1992), 102 et seq.
57
T. Doi (1992), 106 et seq.
the program work which aim at enabling a normal or more efficient

use are not seen as infringement of the moral right (Sec. 20(2)(iii)).57
Voluntary software registration was introduced on 23 May 1986.58
(6) Protection of electronic databases and introduction of cable transmission
rights on 23 May 1986:59 The term “database”60 was introduced as a
new kind of work close to the traditional “compilation work”, which
has to possess originality in compilation and arrangement of the data
contained therein (Sec. 2(1)(xter)).61 Special treatment of electronic
databases has become necessary since they constitute a new kind of
work accessible on individual demand. Therefore, the definition of
work publication was extended to the publication by making avail-
able the work on individual demand with special respect to data-
base works (Sec. 4(4)). In light of the recent challenges of information
technology, the Cultural Affairs Agency today proudly alludes to
these pioneer solutions, introduced more than ten years before inter-
national copyright consultations focused on internet and multime-
dia.62 The amendment also established the new neighbouring right
of cable broadcasters in (Sections 100–2 to 100–4).63
(7) Cat’s Eye decision of the Supreme Court:64 The collecting organisa-
tion for music copyright ( JASRAC) successfully sued a Karaoke bar
for infringing copyright by the unauthorised playing of protected
musical works. The Karaoke bar’s claim to be a kind of locality not
listed among those obliged to pay remuneration fees according to
Section 3 Implementing Regulations (exemptions from the exemp-
tional Section 14 of Additional Provisions, see above) was rejected.
In the following years, JASRAC’s activities concentrated on prose-
cuting infringement by unauthorised commercial use of Karaoke
music, leading to indirect liability of a Karaoke equipment lessor65
58
Revisory Provisions on a part of the implementing provisions, Document No.
34/1996.
59
Law No. 64/1985; see M. Kòno in 304 Copyright [1986], 2–8.
60
Jap. dètabèsu, the Japonisation of the English term “database”.
61
See T. Doi (1992), 112–115; Y. Okamura in 305 Copyright [1986], 2–9.
62
T. Hamaguchi in 436 Copyright [1997], 2–15; K. Bandò in 437 Copyright
[1997], 2–21; K. Okamoto in 433 Copyright [1997], 2–21.
63
H. Saitò (1994), 126 et seq.
64
Decision of 15 March 1988, Hanrei Times 663, 95 et seq.; Hanrei Jihò 1270,
34 et seq.
65
Decision of the High Court Osaka as of 27 February 1997, see M. Ikeda in
436 Copyright [1998], 5–7.
copyright law 513
and restraint orders against unauthorised playback of music by a

number of Karaoke bars in 1996 and 1997.66
(8) Accession of Japan to the Rome International Convention for the Protection
of Performers, Producers of Phonograms and Broadcasting Organisations on 26
October 1989, by an amendment of the Copyright Act on 28 June
1989,67 extending neighbouring rights protection to the Convention’s
member states (Sec. 7(v a)) for performers, Sec. 8(iii a)) for phono-
gram producers and Sec. 9(iii a)) for wireless broadcasters).
(9) Strengthening the protection of foreign and domestic performers and pro-
ducers of phonograms by the following amendments on 2 May 1991:68
– abolishment of the exclusion of foreign right owners from the
rental right;
– further extension of neighbouring rights protection from 30
to 50 years following the extension from 20 to 30 years on 1
November 198869 (Sec. 101);
– penal liability not only for unauthorised reproduction of mother
matrixes of phonograms produced in Japan and bearing contents
belonging to foreign right holders, but also for unauthorised repro-
duction of imported mother matrixes70 (Sec. 121–2);
(10) Introduction of a levy system for the private reproduction of digital sound
recordings on 16 December 1992:71 Under this amendment, which intro-
duced a new Chapter V (Secs. 104–2 to 104–11) to the Copyright
Act, the electronics industry engaged in the production of digital
video and sound recorders and digital carriers had to pay a certain
percentage of the wholesale price72 to a new collecting administra-
tion organisation called SARAH (Society for the Administration of
Remuneration for Audio Home Recording) that distributes the pay-
ments to authors, performers and producers of phonograms. Such
66
Rooms provided for individual customer groups for self service Karaoke enjoy-
ment; details about legal measures against Karaoke bars in Nihon Ongaku Chosakuken
Kyòkai Kaihò ( JASRAC Now) 460, 462, 463 [1996], 471 [1997].
67
Law No. 43/1989.
68
Law No. 63/1991; see A. Fujiwara in 362 Copyright [1991], 10–15.
69
Law No. 87/1988.
70
T. Doi (1992), 172 et seq.
71
Law No. 106/1992; see S. Taguchi in 383 Copyright [1993], 2–9.
72
Due to an agreement between the Electronic Industries Association of Japan
and JASRAC (see below), percentages increased from 1% to 2% for recorders and
from 1% to 3% for empty digital carriers in a three year term—Aktuelle Information
in GRUR Int. 1993, 264 et seq.
an amendment had been discussed since 1977 as a means to cope

with excessive home taping of protected material. Two Subcommittees
of the Copyright Council failed to present a solution until an agree-
ment was reached between the Electronic Industries Association of
Japan (EIAJ) and JASRAC on 8 September 1992.73 An amendment
of the copyright enforcement rules of 25 June 199974 extended the
scope of leviable audio systems to include digital video to the list of
equipment subject to a customer’s levy for private recording.75 Analogue
dubbing on video and cassette tapes remains free of charge. Problems
concerning private reprographic copying of printed material have
not yet been resolved.
(11) Adaptation of the Copyright Act to the TRIPs Agreement on 14 December
1994:76 Protection was extended to works, performances, phonograms
and broadcasts first published or fixed in WTO member states or
belonging to residents of WTO member states. Concerning the term
of protection, the principle of reciprocity was adopted (Sec. 58).
(12) Introduction of 50 years retroactive protection for performers and phono-
gram producers and facilitation of damage account on 26 December 1996:77
The introduction of retroactivity was forced onto Japan by a U.S.
initiated WTO Dispute Settlement Process, demanding retroactive
protection for U.S. “oldies” back to the year 1946.78 The United
States desired an interpretation of Article 18 (3) Berne Convention
in conformity with the principle of retroactivity.79 The Japanese side
73
“Aktuelle Information” in GRUR Int. 1993, 264 et seq.; for an overview of
the discussion and work of the Copyright Council see Y. Okamura in 293 Copyright
[1985], 2–8; M. Amamiya in 329 Copyright [1988], 2–9; Statements of the JAS-
RAC president N. Akutagawa to the Educational Commission of the Upper House
on 4 June 1985 and on 13 May 1988, reprinted in JASRAC, Vol. II (1990) 262–276;
Chosakuken shingikai dai 10 shòiinkai hòkokusho no gaiyò (Summary of the Report
of the 10th Subcommittee of the Copyright Council) in 369 Copyright [1991],
12–14.
74
Cabinet Order No. 210.
75
T. Doi, Patents & Licensing 1999, Vol. 29, No. 4, 7–10.
76
Law No. 112/1994; see T. Mori in 408 Copyright [1995], 8–11.
77
Law No. 117/1996; see T. Hamaguchi in 430 Copyright [1997], 26–32.
78
K. Okamoto, 421 Copyright [1996], 17–28.
79
Article 18 of the Berne Convention, quoted in Article 14 (6) TRIPs, grants
retroactive protection in newly acceded countries, this retroactivity being limited by
the controversial Section 3. According to the Japanese interpretation, Section 3
grants freedom of choice, whether a member state wants to acknowledge the prin-
ciple of retroactivity or not. However, the United States and the European Union
regard Article 18 (3) as a permission to take only preliminary facilitative measures
in favour of the domestic culture industry, which otherwise may be exposed to
heavy impairment by sudden retroactivity in case of recent access.
copyright law 515
retreated without losing face by denying the general obligation to

grant retroactive protection on the diplomatic level, while amending
the corresponding supplementary provisions (Sec. 2(3); Sec. 15(2))
to the Copyright Act in favour of the U.S. position, declaring that
Japan had to keep pace with the protection level of developed
countries.80 Since this dispute was not the first questioning Japanese
readiness to meet international copyright obligations, concerns
about international reputation may have contributed to the enactment
of the amendment.81 Another amendment enabled judges to request
the necessary documents containing evidence on the amount of dam-
ages for infringement of one party, if requested by the other (Sec.
114–2).82 Finally, Sec. 55, providing for a lower level of protection
for photographic works in comparison to other works, was abolished
to bring Japanese law in conformity with the international tendency
towards acknowledgment of full copyright protection for works of
photography.83
(13) First adaptation to the World Copyright Treaty (WCT) and Performances
and Phonograms Treaty (WPPT)84 on 18 June 1997:85 Authors were pro-
vided with the new right of “public transmission” (kòshù sòshin), includ-
ing the right of “making available” of their works (Sec. 23). Performers
and phonogram producers were granted the isolated right of mak-
ing their sound recordings available to the public for individual
demand (Sec. 92–2 for performers, Sec. 96–2 for phonogram pro-
ducers). Special consideration was given to computer software, because
program works are excluded from the limitation clause according to
which the transmission within a Local Area Network (LAN) is not
covered by copyright (Sec. 2(1)(vii–2).86
(14) Restriction of the rights of publication and being named as author in
the case of administrative use of works on 7 May 199987 by special order
to enforce the Act on Administrative Publication of Information.88
80
“Aktuelle Information” in GRUR Int. 1997, 1036.
81
C. Heath, 12 EIPR [1996], 677–680.
82
See T. Hamaguchi in 430 Copyright [1997], 26–32; “Aktuelle Information”
in GRUR Int. 1997, 1036.
83
T. Hamaguchi in 430 Copyright [1997], 26–32.
84
Both treaties in IIC 2/1997, 208–223.
85
Law No. 86/1997; see P. Ganea in GRUR Int. 1998, 571–579.
86
See (6) above.
87
Law No. 43/1999.
88
Law No. 42/1999.
If the author offers his yet unpublished work to an administrative

authority, he is deemed to have given his consent in making it pub-
licly available by this authority (Sec. 18(3)). If considered necessary,
the authorities may also abrogate the author’s right of being identified
as such in the course of administrative publication (Sec. 19 (4)).89
(15) Second adaptation to WCT and WPPT on 23 June 1999:90 Authors,
performers and phonogram producers were granted the distribution
right (literally “right of transfer”, Sec. 26–2 for authors, Sec. 95–2
for performers, Sec. 97–2 for phonogram producers). Unlike the exist-
ing distribution right (hanpuken) of the film producer (Sec. 26), the
“right of transfer” exhausts after first sale domestically or abroad.91
As a further adaption to both WIPO treaties, legal measures against
circumvention of electronic protection mechanisms and against alter-
ation of rights management information have been introduced (Sec.
2(1)(xx), (xxi)). Whereas the WPPT is limited to the protection of
performers and phonogram producers, the Japanese protection against
circumvention of technical measures and against manipulation of
copyright information is extended to broadcasting enterprises. The
offering or making available of circumvention mechanisms and manip-
ulation of copyright information are subject to criminal sanctions
(Sec. 120–2).92 With regard to technical protection measures, not
only the Copyright Act but also the Unfair Competition Prevention
Act has been amended in 1999 (Sec. 2(1)(x), (xi)).93 Setting illegal cir-
cumvention mechanisms into circulation and providing unauthorised
users with legal circumvention mechanisms, originally handed out to
a limited circle of users, is seen as unfairly affecting the interests of
content providers. A third amendment has been the introduction of
the author’s right to audiovisually display his work (Sec. 22–2). Finally,
Article 14 of the additional provisions to the Copyright Act, which
for a term of nearly 30 years “preliminary” deprived music copy-
right holders of the right to publicly play their works fixed in phono-
grams (see Chapter III), was abolished.
89
See O. Kishimoto, 460 Copyright [1999], 32–35.
90
Law No. 77/1999; comparative table of new and old provisions in English,
translated by T. Doi, Patents & Licensing 1999, Vol. 29, No. 4, 12–29.
91
O. Kishimoto, 461 Copyright [1999], 47–53.
92
T. Koshida, 460 Copyright [1999], 24–31.
93
Law No. 33/1999 as of 23 April 1999; see Intellectual Property Office of the
Administration for Trade Policy of the Ministry of Industry and Trade, 460 Copyright
[1999], 38–40.
copyright law 517
(16) Extension of limitation clauses in favour of blind and deaf persons, new
rules with regard to damage calculation and submission of documents, introduc-
tion of special fines for infringement by legal persons and adaptation of foreign-
ers related provisions to the WCT:94 New limitation clauses facilitate the
making of audiovisual contents perceptible to blind and deaf con-
sumers (Secs. 37, 37–2, 43, 48). With regard to copyright infringe-
ment, courts are not bound by the “normal” licence fees raised by
the various collecting societies when calculating adequate damages
according to a licensing analogy, but may take into account the
actual licence fee that would have been obtained in the absence of
infringement (Sec. 114 (31)). Courts may also calculate damages at
their own discretion if a calculation on grounds of a licensing anal-
ogy etc. is not possible (Sec. 114–5). Furthermore, courts are autho-
rised to request the necessary documents containing evidence of
infringement. Such a request may only be refused for justified rea-
sons, e.g. if the requested documents contain a business secret (Sec.
114–3). With regard to criminal liability, a fine not exceeding 100
Million Yen has been introduced as a special deterrent in case of
infringements that occurred under the supervision of a legal person
(Sec. 124(1)(i)). Finally, the principle of reciprocity was adopted with
regard to the copyright duration of works from WCT member states.
(17) Enactment of the Act on the Business of Administrating Copyrights etc.
on 21 November 2000:95 The Act on the Business of Administrating
Copyrights etc. replaces the Act on Intermediary Business of 1939.
The new law aims at deregulation in the field of collecting admin-
istration. Accordingly, official admission is no longer required for the
establishment of a new collecting society and for the remuneration
standards, but instead only a formal registration with the director of
the cultural agency. Only collecting societies that dominate a cer-
tain field of rights administration are still under special supervision
of the cultural agency to avoid abuse of monopolistic marketing
power. With regard to the relationship between collecting society
and author, the individual right owner has the choice between entrust-
ment to fiduciary right administration, which requires right transfer
94
Law No. 56/2000; comparison of old and new regulation in 469 Copyright
[2000], 38–41; see K. Momii, 471 Copyright [2000], 19–25.
95
Law No. 131/2000, see T. Gòji, 477 Copyright [2001], 26–41 & 478 Copyright
[2001], 22–37.
to the collecting society, or “entrustment in a narrower sense”, which

means that the author designates a certain society to exercise his
copyright.
(18) Introduction of moral rights for performers, internet transmission right
for broadcasting enterprises and other amendments on 19 June 2002:96 With
the introduction of the special moral rights to performers to be named
in connection with their performances (Sec. 90–2) and to preserve
the integrity of the performance (Sec. 90–3), Japan has brought its
copyright law into full compliance with the requirements of the
WPPT as the first international convention which in its Art. 5 pro-
vides for performer’s moral rights. The right in preserving the integrity
of the performance is weaker than the corresponding author’s right.
It cannot be broadly exercised against distortions “against the will”
of the performer, but only against distortions which may cause dam-
age to his reputation. Distortions deemed customary in the light of
the nature of the work and manner of exploitation would thus be
permissible. The moral rights of performers are inalienable (Sec.
101–2). With regard to the treatment of moral rights after the per-
former’s death, the principle of droit moral perpetuel has been adopted
(Sec. 101–3), which also applies to the author’s moral rights (Sec.
60). Since the Japanese neighbouring rights provisions now fully com-
ply with the WIPO requirements, the protection of performers and
phonogram producers under the Copyright Act has been extended
to performances which have taken place or which have been first
recorded in a member state to the WPPT (Sec. 7), and to phono-
grams the rights in which belong to a resident of a member state
to the WPPT or which have been first recorded in a member state
to the WPPT (Sec. 8). With regard to the so-called secondary right
of the neighbouring right holder to receive a remuneration for the
communication to the public or broadcast of his sound-fixated per-
formance or phonogram—Art. 15 (3) WPPT allows member states
to make a reservation that they would not grant such rights—Japan
has adopted the principle of reciprocity (Secs. 95, 97). As a further
amendment, broadcasting enterprises have been granted the right to
make their broadcast publicly available for individual access (inter-
net availability—Sec. 99–2 with regard to wireless broadcasting enter-
96
Law No. 72/2002; see the explanations of the Copyright Department, 496
Copyright [2002], 26–39.
copyright law 519
prises; Sec. 100–4 with regard to cable broadcasting enterprises).

Finally, in Sec. 101 the date from which the protection term for
phonograms (50 years) is counted, has been changed from the date
of first fixation to the date of first publication (i.e. the date at which
a sufficient number of reproductions to satisfy the demand has been
made commercially available—Sec. 4–2).97
Only in cases where the phonogram is not published within 50
years from first fixation will the protection term be counted from
the date of first fixation.
(19) 18 June 2003: introduction of new copyright limitations and improve-
ment of copyright enforcement. New limitation rules render copyright-free
the enlarged reproduction of literary works, illustrations etc. for the
purpose of educating weak-sighted persons (Sec. 33–2) and the online
transmission of works for educational purposes (Sec. 35 (2)). Due to
the growing importance of the film industry, the duration of pro-
tection for cinematographic works has been extended from 50 to 70
years from first publication or creation (Sec. 54). Two further amend-
ments aim at improving copyright enforcement, namely the newly
method of calculating lost profits on grounds of the actual sale of
infringing reproductions (sec. 114 (1)) and the obligation on the defen-
dant to substantively deny the facts presented by the plaintiff (Sec.
114–2).
Literature:
H. Aizawa, Konpyùta nettow ku jidai no chiteki zaisanshò (Intellectual
Property in the Age of Computer Networks), 1117 Jurist [1997],
86–91; N. Akutagawa, Statements to the Educational Commission
of the Upper House on 4 June 1985 and on 13 May 1988, reprinted
in Japan Society for Rights of Authors and Composers ( JASRAC ),
Nihon ongaku chosakuken shi (History of Japanese Music Copyright)
1990, Vol. II, 262–276; M. Amamiya, Tòmen suru chosakuken mondai
ni tsuite (Current Copyright Problems), 329 Copyright [1988], 2–9;
K. Bandò, Chosakuken wo meguru tòmen no mondai (Current
Problems in Relation to Copyright), 437 Copyright [1997], 2–21;
Chosakuken hanrei kenkyùkai (Research Group on Copyright Cases),
97
Rule 8 of the Supplementary Provisions to the amendment, however, excludes
phonogram protection, the term of which has already expired under the old pro-
visions, from revival.
Saishin chosakuken kankei hanrei shù (Collection of Recent Cases

Concerning Copyright), 1986; Chosakukenhô hyakunen shi (Hundred
Years of Copyright History), Tokyo 2000; Chosakuken shingikai dai 10
shòiinkai hòkokusho no gaiyò (Summary of the Report of the 10th
Subcommittee of the Copyright Council), 369 Copyright [1991],
12–14; Copyright Department of the Cultural Agency, Chosakuken hò wo
ichibu kaisei suru hòritsu ni tsuite (On the Law for Partial Amendment
of the Copyright Act), 496 Copyright [2002], 26–39; Copyright Research
and Information Center (CRIC), Copyright Law of Japan ( Japanese and
English), 1997; idem, Japan, in: Katzenberger et al.; Quellen des
Urheberrechts Neuwied 2003; T. Doi, Intellectual Property Protection
and Management, 1992; idem, Amendment to Japan Copyright Act
Enforcement Order, Patents & Licensing 1999, Vol. 29, No. 4, 7–10;
A. Fujiwara, Chosakuken hò wo ichibu kaisei suru hòritsu ni
tsuite (The Law for Partial Amendment of the Copyright Act), 362
Copyright [1991], 10–15; P. Ganea, Die Anpassung des japanischen
Urheberrechtsgesetzes an den multimedialen Wandel. GRUR Int.
1998, 571–579; idem, Dr. Wilhelm Plage und die Musikurheberrechte
im Vorkriegsjapan, 137 UFITA 1998, 25–44; idem, Verwandte
Schutzrechte im Urheberrecht der Länder Japan, China und
Deutschland—eine vergleichende Studie, München 2000; idem, Japan,
in: Katzenberger et al., Quellen des Urheberrechts, Neuwied 2003;
T. Gòji, Chosakukentò kanri jigyòhò no kaisetsu (Comment on the
Law on the Business of the Administration of Copyrights etc.), 477
Copyright [2001], 26–41 & 478 Copyright [2001], 22–37; T.
Hamaguchi, Chosakukenhò no ichibu wo kaisei suru hòritsu ni tsuite
(The Law for Partial Amendment of the Copyright Act), 430 Copyright
[1997], 26–32 and 436 Copyright [1997], 2–15; M. Handa,
Chosakukenhò kenkyù (Studies about Copyright Law) 7th ed. [1991];
C. Heath, All Her Troubles Seemed So Far Away—EU v Japan
Before the WTO, [1996] 12 EIPR, 677–680; N. Itò, Chosakuken
seidòshi no sobyò (Outline of the History of the Copyright System),
Chosakuken kenkyù 4/1971, 101–170; idem, Chosakuken jiken hyakuwa
(A Hundred Stories About Copyright), 1976; M. Ikeda, Saikin no
chosakuken hanrei ni tsuite, 436 Copyright [1998], 5–7; Intellectual
Property Office of the Administration for Trade Policy of the Ministry
of Industry and Trade, “Fusei kyòsò hòshi hò no ichibu wo kaisei
suru hòritsu” ni tsuite (The “Law for Partial Amendment of the
Unfair Competition Prevention Act”), 460 Copyright [1999], 38–40;
JASRAC, Nihon ongaku chosakuken shi (History of Japanese Music
copyright law 521
Copyright) 2 Vols. 1990; M. Katsumoto, Das neue japanische

Urheberrechtsgesetz/The New Japanese Copyright Act (German &
English), 1975; O. Kishimoto, Jòhò kòkai hò no seitei ni tomonau
chosakukenhò no ichibu kaisei ni tsuite (The Revision of a Part of
Copyright Law in the Course of Establishing the Law of Public
Availability of Administrative Information) 460 Copyright [1999],
32–35; idem., “Chosakukenhò no ichibu wo kaisei suru hòritsu” ni
tsuite (The “Law for Partial Amendment of Copyright Law”) II, 461
Copyright [1999], 47–53; N. Koizumi, Die Treuhandverwaltung von
Urheberrechten durch Verwertungsgesellschaften, GRUR Int. 1998,
579–584; M. Kòno, D tab su, nyùmedia ni kan suru chosakukenhò
no ichibu kaisei oyobi puroguramu no chosakubutsu ni kakaru tòroku
no tokurei ni kan suru hòritsu no seitei ni tsuite (The Establishment
of the Law for Partial Amendment of the Copyright Act Concerning
Databases and New Media and Special Provisions About the
Registrations of Works of Computer Software), 304 Copyright [1986],
2–8; T. Koshida, “Chosakukenhò no ichibu wo kaisei suru hòritsu”
ni tsuite (About the “Law for Partial Amendment of Copyright Act”),
460 Copyright [1999], 24–31; T. Kudò, Saikin no chosakuken jijò
(The Recent Situation of Copyright), 365 Copyright [1991], 2–15;
Y. Kurata, Chosakuken no kiseki (Locus of Copyright), series in
193–200 Copyright [1977], 215 Copyright [1979]; L. Lönholm, New
Japanese Laws—Supplementary to the Codes, 1900; M. Matsuda,
Chosakusha jinkakuken to sono shùhen (Around the Moral Right of
the Author), 429 Copyright [1996], 2–22; S. Matsuoka, Copyright
and Neighbouring Rights Protection in the Japanese Record Rental
Industry, Copyright [1989], 152–159; R. Mizuno, Bankoku hanken
hògò dòmei ni tsuite (The Universal Convention for the Protection
of Copyright), speech on 22 March 1897, Kokka gakkai zasshi 11
& 12/1898, reprinted in JASRAC, Vol. I, 77–90; R. Mizuno, Berurin
ni okeru chosakuken hògò bankoku kagi no jòkyò (The Situation at
the International Conference for Copyright Protection in Berlin),
Taiyò 6/1809, reprinted in JASRAC, Vol. I, 107–109; K. Momii,
Chosakukenhò oyobi bankoku chosakuken jòyaku no jisshi ni tomonau
chosakukenhò no tokurei ni kan suru hòritsu no ichibu kaisei ni
tsuite (The Partial Amendment of the Copyright Act and the Law
Concerning the Exceptional Provisions to the Copyright Act Required
due to the Enforcement of the Universal Copyright Convention), 471
Copyright (2000), 19–25; T. Mori, Chosakuken hò oyobi bankoku
chosakuken jòyaku no jisshi ni tomonau chosakuken hò no tokurei
ni kan suru hòritsu no ichibu wo kaisei suru hòritsu ni tsuite (The

Law for Partial Amendment Special Provisions of the Copyright Act
Concerning the Enforcement of the Copyright Act and the World
Copyright Treaty), 408 Copyright [1995], 8–11; S. Òie, Nippon
chosakuken monogatari (Tales on Japanese Copyright), 1981; K.
Okamoto, Chosakuken hògò no kokusaiteki dòkò ni tsuite (Inter-
national Trends in Copyright Protection), 421 Copyright [1996],
17–28 and 433 Copyright [1997], 2–21; Y. Okamura, Saikin no
chosakuken mondai ni tsuite (Recent Copyright Problems), 293
Copyright [1985], 2–8 and 305 Copyright [1986], 4–7; G. Rahn,
Sonderschutzgesetz für Computerprogramme in Japan? GRUR Int.
1984, 217–222; idem, Japan/I. Einführung, Quellen des Urheberrechts
(Vol. II) 1984; idem, Rechtsdenken und Rechtsauffassung in Japan,
1990; H. Saitò, Shin Chosakukenhò to jinkakuken no hògò (The
New Copyright Act and the Protection of Moral Rights), Chosakuken
kenkyù 4/1971, 73–100; idem, Gaisetsu chosakukenhò (Copyright
Law—An Overview) 3rd ed. [1994]; idem, Chosakukenhò fusoku 14
jò to ensòken no oyobu han’i (Art. 14 of Japanese Copyright Act
Preliminary Provisions and the Scope of Performing Rights), 425
Copyright [1996], 20–29; idem, Chosakukenhô (Copyright) 2nd
ed., Tokyo 2004; Y. Shimizu, Rinsetsuken Jòyaku—Rekòdo Hògò
Jòyaku (Neighbouring Rights Convention—Phonogram Protection
Convention) in Handa/Monya (ed.), Chosakuken no nouhau (Copy-
right Know-how) 1987, 316–321; S. Taguchi, Chosakuken hò wo
ichibu kaisei suru hòritsu ni tsuite (The Law for Partial Amend-
ment of the Copyright Act), 383 Copyright [1993], 2–9; Y. Tanaka,
Karaoke kashòshitsu to Chosakukenhò (Karaoke Boxes and the
Copyright Act), 431 Copyright [1997], 23–28; E. Ulmer, Urheber-
und Verlagsrecht, 2nd ed. [1960]; K. Yamamoto, Chosakukenhò
(Copyright Law), 1969; S. Yatsui, Kyù Chosakukenhò no seisei ni
kan suru ikkòsatsu (Thoughts on the History of the Old Copyright
Act), Chiteki shòyùken ronkyù, 1985, 847–868; T. Yoshimura, Kyù
Chosakukenhò izen no ongaku chosakuken (Music Copyright Before
the Old Copyright Act), 350 Copyright [1990], 10–11.
anti-trust law 523
5.8 Anti-Trust Law
Christopher Heath
I. The Japanese Economy and Anti-Trust Considerations before

World War I
The foremost objective of all economic activities following the Meiji

Restoration in 1868 was to catch up with western powers. Though
a market economy, Japan’s policy at a very early stage supported
industrial development by an (imposed) regime of low taxes for the
import of strategically important goods and support for financing
and negotiating technology transfer arrangements. After 1880, several
promising merchant houses were able to acquire state enterprises: a
number of coal mines went to Mitsui, while a shipyard went to
Mitsubishi (see below II).
“He who hath shall be given”—in few countries would this bib-
lical motto more aptly describe governmental policy towards private
enterprises than in Japan. Political disregard for small private enter-
prises and consumers made cartels appear to be the ideal solution
in preventing any economic recession such as the one which occurred
at the beginning of the 20th century in the aftermath of the Japanese/
Russian war, and later in the 1930s. Court decisions and academic
writings consistently stressed the beneficial effects of cartel agree-
ments against the alleged vices of “excessive competition”. 1
Developments in Japan merely mirrored those in other countries
such as Germany, which in similar fashion held cartel agreements
to be valid and enforceable. The only country whose policy at that
time went against the grain was the United States, though the enact-
ment of the Sherman and Clayton Acts had very little influence on
Japanese policy. Trends towards increased cartelisation were a direct
result of the economic crisis following the Japanese-Russian War in
1904.
1
E.g., I. Goto (1901); U. Toda (1910); H. Seki (1911). Supreme Court, 20 July
1920, Minroku No. 26, 992; Supreme Court, 26 November 1935, Hanketsu Zenshu
No. 1, 1246; the court even found a collective boycott in order: 4 March 1910,
Minroku No. 16, 185.
II. The Rise of the Zaibatsu
Anti-trust policy in the first half century after the country had opened
up towards the western world could be better described as a trust
policy.
Industrial growth in Japan from the Meiji period until the end of
World War II is intrinsically linked with, and indeed unthinkable
without, the formation and growth of the so-called Zaibatsu groups.
Literally translated, Zaibatsu means “wealthy clique”, although the
word itself has become synonymous with a certain structure of busi-
ness groups existing before World War II. Traditionally, the Zaibatsu
groups have been defined by their corporate structure as holding
companies with a number of subsidiaries in all types of businesses.2
It should be borne in mind, however, that a corporate structure only
evolved in the course of industrial and legal development during the
Meiji period. Neither did all the later Zaibatsu groups come from
the same background, nor was their success a foregone conclusion.
The four groups that are consistently mentioned as Zaibatsu are
Mitsui, Mitsubishi, Sumitomo, and Yasuda. Asano, Òkura und
Furukawa are also sometimes mentioned. In 1928, the above-mentioned
groups held 16.5% of the total paid-in-capital of joint-stock compa-
nies in Japan.
The Mitsui had been political merchants since the late 17th cen-
tury, exchanging money for rice during the days of the Tokugawa
Shogunate. Having avoided bankruptcy during the political turmoil
between 1866 and 1868, Mitsui continued operating as a political
merchant of the new Meiji government, acting as one of the three
licensed financial agents. In 1876, the Mitsui Bank was founded.
Yasuda also made its fortune by means of fiscal operations at the
start of the Meiji period, mostly by speculating in paper money. The
National Bank, founded in 1876, was renamed the Yasuda Bank in
1880. As with Yasuda, Mitsubishi’s origin could be traced to the
beginning of the Meiji period, the founder being a member of the
impoverished Samurai class. The founding family profited from pur-
chasing ships and weapons from foreign merchants, first in Nagasaki
and later in Osaka. The trading company Mitsubishi (“Three Dia-
2
H. Morikawa (1992), XVII; E. Hadley (1983), 361.
anti-trust law 525
monds”), founded already in 1870, was later to become the Mitsubishi

Steamship Company.
Sumitomo, Furukawa and Asano all made their fortune in cop-
per or coal mines. Of all the Zaibatsu, Sumitomo could claim the
longest history, tracing its commercial origins back to around 1600.
After the abolition of the copper exchange at the time of the Meiji
Restoration, Sumitomo hired a French engineer to modernise its
mines. Furukawa’s fortunes were the result of a combination of
applied mining technology and clever financial manipulation. Asano
was perhaps the only later Zaibatsu conglomerate whose fortune was
based on inventive activities rather than commercial transactions.
Asano’s founder invented a process whereby coke, a by-product of
coal gas production, could be used as fuel for cement and paper
factories.
Promising early activity was certainly not sufficient to build busi-
ness empires. In all cases, the later Zaibatsu conglomerates profited
enormously from either government patronage or the sale of gov-
ernment assets. While Mitsui enjoyed massive government protec-
tion during the beginning of the Meiji era, its fortunes declined
during the 1870s and 1880s. Yet the consequences of bankruptcy in
an organisation that had attained the size and importance of Mitsui
would have been so dire that in 1890 the government appointed a
bank director to turn its misfortune around. Mitsui’s diversification
into trade by founding Mitsui Busan in 1876 had a slow start.
However, it was lucky enough to outbid Mitsubishi when the gov-
ernment decided to sell a coal mine in 1888. Mitsubishi profited
enormously from government contacts when investing in a fleet of
transport ships. Despite some government-promoted competition,
Mitsubishi came to own the largest shipping fleet in Japan. Since
ships needed coal, Mitsubishi also bought coal mines, financed by
stock ownership in railway, insurance and trading stocks. In contrast
to Mitsui, Mitsubishi was actually managed by its owner and founder.
While Sumitomo when diversifying concentrated on warehousing and
financial activities, Yasuda saw its forte in the Yasuda Bank founded
in 1880.
Major re-organisations of the Zaibatsu groups took place after
implementation of the new Commercial Code in 1893. While Mitsui
mostly opted for unlimited partnerships in order to avoid disclosure
of assets, Mitsubishi and Yasuda formed limited partnerships. After
the widespread privatisation of government industries at the beginning
of the 1880s, most of the Zaibatsu groups kept out of those busi-
nesses still dominated by the government, namely railways and silk-
spinning.
It is interesting to note that the financial basis of almost all of the
Zaibatsu groups was derived from substantial income from stock-
holdings, while today’s cross-shareholdings largely serve different pur-
poses (see below IX.1). All in all, between 1880 and 1920 the Zaibatsu
groups profited from financial and managerial resources embedded
in proper organisational structures. While rules concerning inheri-
tance and ownership were defined more precisely after the turn of
the century, the holding structure for which Zaibatsu are known was
only developed during World War I.
III. Compulsory Cartels and Preparations for War
Economically and legally, the first phase of the adoption of foreign

law ended more or less after World War I. Japan, having annexed
Taiwan and Korea, having been victorious in the war against Russia
and on the winning side in World War I, felt secure about itself.
The predominant acceptance of German law and legal thinking prior
to World War I3 came to a natural end as Germany’s prestige had
severely suffered after her defeat. American legal thinking, on the
other hand, proved much less attractive due to its completely different
systematic order. In the area of anti-trust law, while the 1920s saw
a high degree of unorthodox thinking,4 a tightening grip of bureau-
cracy over the economy was also apparent. In the 1920s and 1930s,
Parliament enacted special laws for the protection of trusts and car-
tels. One of the first was a law to promote export for small and
medium-sized enterprises.5 The structure is typical also for future
3
G. Rahn, Rechtsdenken und Rechtsauffassung in Japan, 80–129 [1990].
4
See Seiji Tanaka (1922), advocated control of cartel laws because of his gen-
eral distrust of bourgeois structures. In the newly founded periodical Jiyù Tsùshò
(Free Economy), Teijiro Ueda came out in favour of free trade and a control of
cartels. He even criticised Japanese laws encouraging or mandating cartels in Gòrika
wo samatageru sangyò tòseihò (An Economic Control Act Preventing Rationalisation),
4/4 Jiyù Tsushò [1931].
5
The objective itself is not unusual, as many countries even today permit export
cartels because there is no visible effect on the domestic market (beggar-thy-neigh-
bour-policy).
anti-trust law 527
legal instruments controlling cartels: cartel agreements were to be

permitted in principle and made binding on its members. In addi-
tion, the Ministry responsible for this type of industry would be
empowered to oblige non-members to join the cartels so as to avoid
insufficient participation. The structure allowed for bureaucratic
flexibility: instead of openly mandating a cartel, non-members were
forced into “voluntary” participation. Yet this would only be the
beginning. The recession of 1929 provided fertile ground for further
economic intervention. In 1929, the Committee for Rationalisation
of Industry reported the following:
“The existence of too many enterprises competing with each other
leads to an overinvestment of capital and is not suited for lowering
production costs or stabilising trade. In order to find a balance between
supply, demand and distribution within the individual branches of
industry, mergers should be supported and cartels or similar agree-
ments should have a stabilising effect. It is especially important to pre-
vent excessive competition.”6
As a consequence of this report, the Act for the Control of Important
Industries was promulgated in 1931. As this piece of legislation was
meant to regulate predominately large-scale companies, the Act on
Trade Associations was enacted in the same year, targeting small
and medium-sized enterprises. Key industries were regulated by spe-
cial laws that limited the number of enterprises that could carry out
business in this field. Examples are the laws on banking in 1927, on
iron and steel in 1933, on power plants in 1938, and on the All
Japan Airline company in 1939. The Zaibatsu companies were also
part of this concentration process. Immediately before the outbreak
of World War II in Japan (December 1941), the first ten Zaibatsu
companies owned 35.2% of the total Japanese share capital. 80% of
all foreign investment was conducted by the Zaibatsu. At the end
of the war, the Big Four—Mitsui, Mitsubishi, Sumitomo and Yasuda—
owned a quarter of the total share capital of Japanese companies.7
It would therefore be fair to say that as of the beginning of 1930,
Japan became increasingly cartelised under governmental supervision.
This is said to have facilitated turning Japanese industry into a
6
Tsùshò Sangyò Shò (MITI), Shòkò seisakushi-dai 9 kan (History of Trade and
Economic Policies, Vol. 9), 12–14 [1961].
7
There are a number of detailed studies on the Zaibatsu: A. Bisson (1954);
E. Hadley (1970).
formidable machine for war-time production. Free competition as it

is understood today was rather seen as being “excessive” and there-
fore undesirable.
IV. Trust Busting under the American Occupation
It will not come as much of a surprise that the United States, which
already at the turn of the century had an anti-trust legislation in
place, was suspicious of Japanese cartel structures when its occupa-
tion forces arrived in 1945. Japan was to be re-organised democra-
tically. For this reason, the Zaibatsu groups were dissolved, all
organisations responsible for controlling economic power abolished
and a number of mergers undone. Particularly the dissolution of the
Zaibatsu groups was hotly disputed within the U.S. Department of
State. It was argued on the one hand that the Zaibatsu groups had
supported parliamentary democracy. On the other hand, huge eco-
nomic concentration was deemed not the best starting position for
a fledgling democracy. In the end, the Zaibatsu dissolution pro-
gramme made a huge disposition of the securities held by their
holding companies and family members mandatory. The Big Four
themselves had drawn up a dissolution plan at the end of 1945, con-
sisting of the sale of stock and the resignation of all family mem-
bers from their respective enterprises. The Supreme Commander for
the Allied Powers (SCAP) was responsible for all measures carried
out in Japan. Directive No. 244 of 6 November 1945 spelled out
what the United States had in mind regarding Japanese anti-trust
policy: the Japanese Parliament was meant to enact “such laws that
prevented monopolies, restraints of trade, undue cumulation of man-
agement posts in different enterprises and undue cross-shareholding;
banks and companies should be separated”. The Japanese, however,
were little inclined to comply with such revolutionary ideas. The
draft law presented by the Japanese government very closely resem-
bled the old economic control laws and was therefore rejected out
of hand by SCAP. In August 1946 SCAP presented its own draft
that formed the basis of the Anti-Monopoly Act which was ratified
by Parliament in March 1947.8
8
Shiteki dokusen no kinshí oyobi kòsei torihiki no kakiho ni kan suru hòritsu,
Law No. 54/1947.
anti-trust law 529
V. The Anti-Monopoly Act 1947
The features of the Japanese Anti-Monopoly Act are as follows:

(1) protection of both consumers and entrepreneurs by supporting
and maintaining free and fair competition;
(2) absolute prohibition of establishing holding companies;
(3) absolute prohibition of unfair trade practices subject to the
FTC’s specification;
(4) absolute limits on cross-share-holdings for banks and large enter-
prises;
(5) relative prohibition of establishing monopolies and undue
restraints of trade subject to a negative effect on competition in that
market;
(6) relative limits on interlocking directorates, mergers and acts of
trade associations in case there are negative effects on competition
in that market.
Modelled after the U.S. Federal Trade Commission, the Japanese
Fair Trade Commission, an independent body of five commission-
ers and initially 318 support staff, was to be responsible for enforc-
ing the Anti-Monopoly Act. The Commission was answerable only
to the Prime Minister and independent from any ministry.
The general purpose of the Anti-Monopoly Act is to “prohibit pri-
vate monopolisation, unreasonable restraint of trade and unfair trade
practices, prevent excessive concentration of economic power and
eliminate unreasonable restraint of production” with the purpose of
“promoting the democratic and wholesome development of national
economy as well as to protect the interests of consumers in general”,
Sec. 1 Anti-Monopoly Act (AMA).
a) In Sec. 3, the law prohibits private monopolisation and undue
restraints of trade that “substantively restrain competition”.9 Private
monopolisation aims at the elimination of competitors by way of
control, while undue restraints of trade aim at an elimination of
9
A “substantive restraint of competition” refers to cases where “competition is
restrained to the extent that one or several competitors are in a position to con-
trol price, quantity, quality or other factors at will”, which would be the case where
more than 25% of the market is concerned: Tokyo High Court, 7 December 1953,
5 KTIS (official collection of antitrust cases) 118—“Toho/Subaru”. Confirmed by
Supreme Court, 25 May 1954, 8 KTIS 102.
competition by way of cooperation. Private monopolisation may be

effected by way of collective boycotts, exclusive dealing agreements,
discriminatory practices, dumping, etc.10 Undue restraints of trade
only refer to horizontal agreements between competitors, not verti-
cal ones.11 Undue restraints of trade are, inter alia, geographical separa-
tions of the market between competitors,12 agreements on customers,13
or any form of price agreements.14 Particularly bid-rigging schemes
in over-protected industries such as construction seem to be rampant.15
b) The provision most frequently applied in the AMA concerns
unfair business practices according to Secs. 2(9), 19 AMA. Sec. 2(9)
lists unjust discrimination, dealing at unfair prices, tying customers
or competitors, dealing on restrictive terms, abuse of a bargaining
position, or unjust interference in another’s business. The provision
gives the FTC jurisdiction over specifying the above-mentioned pro-
hibitions in guidelines. The FTC has done so in the general guide-
lines first issued in 1953 and amended on 1 September 1982.16 The
new general guidelines17 lists 16 acts of unfair trade practices, inter
alia, acts of discrimination, unjust refusals to deal, unduly high or
low prices, customer inducement, tie-in sales, non-competition clauses,
retail price maintenance, abuse of bargaining power or undue influence
on competitors.
(c) These general guidelines are further specified and elaborated
by both specific guidelines for certain sectors, and “legal opinions”
issued by the Fair Trade Commission. These are:
10
In toto, only six decisions have been rendered in this matter, the last in 1972:
FTC decision of 18 September 1972, 19 KTIS 87—“Toyo Cans”.
11
Tokyo High Court, 9 March 1953, 6 Minshù 435—“Asahi”. One may justify
this by the fact that undertakings on different market levels are not considered com-
petitors.
12
FTC decision of 27 December 1972, 19 KTIS 126—“Asahi Kasei et al”.
13
FTC, 27 December 1971, 18 KTIS 126—“LP Gas”.
14
FTC, 12 January 1974, 20 KTIS 248—“Mitsubishi Shoji”.
15
Effective enforcement is difficult here due to the close ties between politics and
the construction industry. Foreign pressure in the 1990s led to some prosecutions
and surcharge orders. E.g. in the financial year 1994, formal decisions were ren-
dered in 24 cases; in one case a criminal complaint was made and in 26 cases sur-
charge orders were rendered against 512 entrepreneurs in the amount of 5.67 billion
Yen: Reported in the paper “Recent Development of Competition Policy in Japan”,
published by the Fair Trade Commission on 7 August 1995.
16
Under the 1953 guidelines, the FTC issued 91 formal decisions, of which 37
concerned prohibited retail price maintenance.
anti-trust law 531
(1) Guidelines on the Distribution System and Its Trading Methods

of 11 July 1991;
(2) Guidelines on Joint Research and Development of 20 April
1993;
(3) Guidelines on Patent and Know-how Licensing Agreements of
1998;18
(4) Legal Opinion on Franchising Agreements of 24 March 2002.19
While the old general guidelines of 1953 were held compatible with
the AMA,20 to what extent the courts would hold the FTC’s notifi-
cations as compatible with the AMA differs according to individual
circumstances. These notifications certainly do not have the force of
law, but must rather be regarded as an interpretation thereof.
c) In 1948, the Act on Trade Associations made the formation of
all kinds of trade associations dependent upon government approval.
In a country where informal contacts via such associations and organ-
isations were deemed the life blood of the economy, this act could
not survive the U.S. occupation and was practically abolished in
1953. Acts of trade associations prohibited under the AMA are listed
in Sec. 8 and relate to those acts as mentioned above.21
d) The AMA further contained a number of structural prohibi-
tions: holding companies, stockholdings by banks, interlocking direc-
torates and mergers having an undue effect on competition. The
prohibition of holding companies was a concession to those who
believed that the Zaibatsu had contributed to Japan’s war efforts.
The ban on holding companies was only lifted in 1997, and the
remaining restrictions on holding companies in 2002. Financial insti-
tutions were allowed to hold only 5% of stock of outside companies,
increased to 10% in 1953 and again limited to 5% in 1977.
17
FTC Notification No. 15 of 18 June 1982, in force since 1 September 1982.
18
These guidelines were frequently amended. The first guidelines issued on 24
May 1968 were heavily biased towards the (presumably) Japanese licensee and espe-
cially prohibited unilateral grant-back clauses of technology. The guidelines were
substituted by new ones of 15 February 1989 that maintained the prior notification
requirement, yet introduced a distinction between white, grey and black clauses.
The new guidelines of 1998 follow a rule of reason approach and no longer require
prior notification of licensing agreements.
19
This legal opinion amends a previous one of 20 September 1983.
20
Supreme Court, 10 July 1975, 22 KTIS 173—“Wakodo”.
21
Trade associations are frequent offenders: Between 1953 and March 1990, no
less than 367 formal decisions were issued against such associations.
e) In its original form, the AMA did not contain any exemptions
to the act other than those for the exercise of industrial property
rights, for “natural” monopolies (i.e. state-owned companies), and
certain mergers in the retail sector. The pandora’s box of exemp-
tions was only opened in 1953.
f ) The Fair Trade Commission was set up as a panel of five per-
sons with a staff of initially 323, now about 500 persons. The appoint-
ments of commission members have mostly been politically motivated
and followed certain patterns of influence: Traditionally, the Ministry
of Trade and Industry (MITI) and the National Tax Bureau have
been able to regularly supply some of their high-ranking members
to the FTC. Only since the 1990s have these appointments received
more publicity, and only since then has the Bureau of the Prime
Minister, to which the FTC is attached, appointed FTC members
from a wider spectrum, e.g. from the public prosecution services.
g) The procedures have remained unchanged since 1947: Most of
the cases have been concluded informally, which saved the FTC the
trouble of further investigating in order to issue a formal recom-
mendation, and was deemed face-saving for the undertakings involved.
Since the 1990s, such informal warnings have been released to the
press in special cases of public interest. Formal recommendations are
always published and require the FTC to thoroughly investigate all
the facts. The entrepreneur involved may accept such formal rec-
ommendation within 14 days, otherwise a hearing procedure is opened.
Where a recommendation is accepted or a hearing procedure results
in the ascertainment of wrongdoing, the FTC may take any reme-
dies necessary to stop the wrongful behaviour. Only in 1977 did it
become possible for the FTC to issue surcharge orders as a per-
centage of turnover.
The following explanations indicate the economic and political back-
ground of 50 years of anti-trust policy. Amendments to the AMA
and enforcement patterns have less to do with new insights into com-
petition policy than with industrial policy, domestic politics, admin-
istrative pressure, consumer demands and foreign intervention.
VI. Dilution of Anti-trust Policy in the 1950s and 1960s
The Anti-Monopoly Act was supported by a number of other legal

and practical measures. For one, SCAP ordered the enactment of a
anti-trust law 533
law on trade associations, banning these groups per se. While the
Zaibatsu groups were dissolved, a number of medium-sized con-
glomerates initially earmarked for dissolution could escape this fate
due to the escalating conflict in Korea which made the United States
dependent upon Japan for supplies. Of the 325 conglomerates ini-
tially to be dissolved, only 19 actually were.22 The waning U.S. eco-
nomic control gave the Japanese administration the chance to revert
to their old ways. The Fair Trade Commission did not exactly fit
into the picture. This Commission and the Anti-Monopoly Act were
widely seen as a punishment which would prevent Japan from becom-
ing a major economic player again. How difficult things were can
be imagined when the Japanese interpreters translating the drafts of
the Anti-Monopoly Act from English into Japanese were forced to
admit that they did not know what they were translating.23
It would not take long before these feelings of anger were vented
in the form of a legislative proposal. After the Act on Trade Asso-
ciations had been modified in 1952, the recession after the Korean
War was seen as an ideal opportunity for effecting substantial changes
in the Anti-Monopoly Act. Industrial circles and the Ministry of
Trade and Industry (MITI) advocated a system of generous excep-
tions and a general dilution of the per se prohibitions in the Act.
Meanwhile, however, the Anti-Monopoly Act had received support
from academic writers, small and medium-sized enterprises, consumer
associations, and others. In order to preserve its independence, the
Fair Trade Commission bowed to political pressure from the Ministry
of Trade and Industry and published a legislative proposal for a dilu-
tion of the Anti-Monopoly Act. Upon ratification in September 1953,24
a number of measures were enacted that significantly weakened the
Anti-Monopoly Act. These were, in particular:
(1) A number of per se prohibitions such as concerted activities
and the formation of private control organisations were deleted.
(2) Trade associations could now be founded without prior approval
and could act freely.
(3) An exemption law was drafted that in principle allowed carteli-
sation upon approval of the ministry supervising such industry rather
than the FTC.
22
E. Hadley (1970), 180.
23
C. Johnson (1982), 175.
24
Law No. 253/1953 as of 1 September.
(4) In the Anti-Monopoly Act, exemptions were made for ratio-

nalisation and depression cartels.
(5) Retail price maintenance schemes were made permissible under
certain circumstances and for certain products, e.g. copyrighted works.25
In the following decade, two further laws were enacted that were
meant to protect sub-contractors and consumers. The 1956 Act for
the Protection of Subcontractors26 is meant to protect these against
undue delays in payment. Whatever the merits of this law, it has
rarely been applied in the last 40 years. This cannot be said for the
1962 Act on Free Gifts and Misrepresentations.27 The Act was pro-
mulgated by Parliament in response to scandals involving the sale
of horsemeat as beef. The act gave local governors the possibility of
terminating such practices without having to resort to the somewhat
cumbersome procedures under the AMA. Just as in the AMA, mea-
sures taken have mostly been informal and amount to an annual
1,000–2,000 informal warnings.
During the 1950s and 60s, enforcement activities by the Fair Trade
Commission largely concentrated on unfair trade practices and were
carried out informally. Focussing on unfair trade practices and avoid-
ing formal action assured that the Fair Trade Commission kept out
of the controversial waters of industrial policy that were to intensely
ploughed by the Ministry of Trade and Industry. In 1965, a maxi-
mum of 1065 cartels were exempt from the Anti-Monopoly Act.
Even after the number of cartels had significantly diminished and
deregulation measures were initiated in the mid 1980s, in 1989 a
Fair Trade Commission study group confirmed that almost half of
Japan’s economic production still came from heavily or significantly
regulated industries.28 Perhaps the tide had ebbed lowest when the
Fair Trade Commission, pressured by the government, the Ministry
of Trade and Industry and industrial circles had to approve the
merger of two large steel makers, Yawata and Fuji, which had been
broken up after the war.29
25
Apart from copyrighted works, this mostly concerned items of daily use. The
FTC normally exempted cosmetics with a value of less than 1,000 Yen.
26
Shitake daikin shiharai chientò bòshi hò, Law No. 120/1956 as of 1 June.
27
Futò keihin rui oyobi futò hyòji bòshi hò, Law No. 134/1962 as of 15 May.
28
Kyòsò seisaku no kanten kara no seifu kisei no minaoshi (Change of Government
Regulations in the View of Competition Policy) [October 1989].
29
Decision by the Fair Trade Commission of 30 October 1969, 16 KTIS 46.
anti-trust law 535
VII. Anti-trust on the Upswing Again: 1973–1990
The beginning of the 1970s coincided with the first major oil crisis.
In order to spare the Japanese industry the brunt of price increases,
the Ministry of Trade and Industry persuaded oil importers to keep
prices of industrially used oil low and tacitly tolerated that oil im-
porters formed a cartel for price increases of petrol and heating oil
used by consumers.30 The FTC’s request for criminal indictment of
the oil importers was an ingenious act of publicity. Not only did it
highlight the Ministry of Trade and Industry’s incompetence and
negligence towards consumers, but it also brought the Fair Trade
Commission back into the limelight as perhaps the only govern-
mental advocate of consumer interests. In addition, the case brought
some long-term publicity: the final decision by the Supreme Court
convicting most of the accused was not handed down until 1984.31
Now that the initiative had reverted back to the Fair Trade
Commission, in 1977 Parliament demonstrated its approval of strength-
ening the Anti-Monopoly Act.32
(1) A new provision allowed the FTC to issue surcharge orders
amounting to 1.5 or 3% of the turnover during the prohibited activ-
ities. Most surcharge orders subsequently made concerned bid-rigging
schemes.
(2) A provision was introduced that allowed the FTC to request
information in cases of so-called parallel price increases. While ini-
tially of some effect, there seem to be no long-term deterrents.
(3) Stockholding limitations of banks were tightened again to the
original level of 5%, and a ceiling was introduced establishing that
the amount of stock that large companies hold of outside compa-
nies should not surpass their own worth. With the complete liber-
alisation of the process of forming holding companies in 2002, this
limitation was again abolished.
The chairman of the FTC, angered by such pressure, resigned only two days later.
The decision, however, marked the end of the FTC’s decline.
30
M. Ramseyer (1986), 604; the annual “Law in Japan” dedicated a whole issue
to oil cartel cases (1982).
31
Decision of the Supreme Court of 24 February 1984, 1108 Hanrei Jihò 3
[1984].
32
Law No. 63/1977 as of 3 June.
In the 1980s, the Fair Trade Commission was busy drafting new
guidelines in order to secure an increased compliance with the Anti-
Monopoly Act’s provisions. It issued guidelines of a general nature
(1982), some legal thoughts on franchising contracts (1983), new
guidelines on patent and know-how licences (1989), guidelines on the
distribution system (1991) and guidelines on joint research and devel-
opment (R&D) (1993).33 Stepping up enforcement activities begun at
the end of 1980s were due to the so-called SII (Structural Impediments
Initiative) talks between Japan and the United States. During these
talks, the U.S. had pressed for increased trust busting activities by
the Japanese Fair Trade Commission. As a consequence, the FTC
was granted an increase in personnel (564 as of 2000) and the political
freedom to act even when contrary to the interests of other ministries.
VIII. Anti-trust Law in the 1990s
In the course of the SII talks, the U.S. government identified a num-
ber of issues where it thought that insufficient anti-trust enforcement
in Japan would close markets to foreign competition. Although not
necessarily correct, the initiative led to a major increase in anti-trust
activities and in personnel of the Fair Trade Commission in a major
overhaul of the Anti-Monopoly Act in 1992.34 The revision increased
the percentage of surcharges on cartel activities from 3% to 6%,
and limited financial institutions to hold a maximum of 5% of the
shares of outside companies. From 1990, the number of formal mea-
sures taken by the FTC increased dramatically: from seven in 1989
to 22 in 1990, and 30 in 1991.
Two revisions in 1997 and 2003 concerned the prohibition against
holding companies. By Law of 18 June 1997, the prohibition on
forming holding companies was lifted. The prohibition had been
introduced into the original 1947 Act, because the Americans per-
ceived holding companies to be a serious obstacle towards a demo-
cratic economy. The new Sec. 9 only prohibited the establishment
of a holding company “with excessive concentration of economic
power”. This was defined as a company with an extremely large
33
All the above-mentioned guidelines are reprinted in Iyori/Uesugi (1994).
34
By Law No. 107 (1992).
anti-trust law 537
overall business, having a remarkable influence over other market

participants, or an influential position or a significant number of
mutually related fields of business. The law envisaged a report to be
filed on business activities for all holding companies with assets of
more than 300 billion Yen. In 2002, by Law of 29 May, Sec. 9 was
further amended. Now, the term “holding company” has been com-
pletely abolished and Sec. 9 generally regulates “companies with an
excessive concentration of economic power” in general. Also the lim-
its of cross-shareholding by huge companies (formerly Sec. 9–2) was
completely repealed. In general, this brings the Japanese Anti-Monopoly
Act more in line with those of other countries.
Another reform of 1997 concerned the exemption system. It was
one of the characteristics of the Anti-Monopoly Act that the system
was riddled with exemptions to be found in other laws and regula-
tions. Of the 35 exemption systems in 1997, 29 were abolished and
six reduced in scope.35
Finally, of potentially far-reaching importance was the introduc-
tion of private injunctive relief against violations of the Anti-Monopoly
Act as of 2000.36 For the first time, a newly enacted provision allows
a person whose interests are infringed or are likely to be infringed
by an act in violation of Sec. 19 (unfair trade practices) to demand
injunctive relief against an infringing entrepreneur or a trade asso-
ciation. Further background to this amendment is given below.
IX. Specific Problems of Japanese Anti-trust Law
1. Keiretsu—A Reformed Zaibatsu?

At first glance, it might look strange that even after the dissolution
of the above-mentioned Zaibatsu, the Mitsui, Mitsubishi and Sumitomo
groups still play an important role in Japan’s economic landscape.
While the structure has changed, the question of whether there has
been a change in substance is more difficult to answer.
First of all, two types of Keiretsu (which may be translated as
“linked enterprises”, similar to pearls on a string) have to be distinguished.
35
Law of 20 June 1997.
36
Law of 19 May 2000, in force since 1 April 2001.
Vertical Keiretsu are enterprises that are integrated with each other
along the distribution chain from the manufacturer all the way down
to retail outlets and all the way up to parts manufacturers and other
sub-contractors.37 In some cases, the dominating unit in this chain
is the manufacturer, in others a large retail store. Integration is
effected by the dominating enterprise in this chain holding stock of
the other enterprises, sharing part of the financial risks, and trying
to integrate purchase or distribution by pooling information, etc. The
highest degree of vertical integration can be found in the automo-
bile and electronics industry. Although benefits may derive from all
those involved by streamlining distribution structures, discriminating
practices against sub-contractors, factual maintenance of prescribed
retail prices and voluntary or mandated exclusion of outsiders have
proved to be detriments. The Fair Trade Commission has tried to
counter the negative impact of vertical Keiretsu structures by means
of their guideline on the distribution system of 1991.
Yet what is generally referred to as “Keiretsu” is a horizontal
structure of enterprises operating in different fields under a common
name. There are believed to be presently six Keiretsu groups: Mitsui,
Mitsubishi, Sumitomo, Fuyo (Fuji), Sanwa, and Daiichi Kangyo.
Since holding companies are forbidden in Japan, these business groups
do not share a common holding company, and are linked only loosely
with each other.38
Keiretsu groups share the following patterns:
(1) A varying degree of loosely linked enterprises in different sec-
tors, currently between 20 (Sumitomo) and 47 (Daiichi Kangyo).
(2) Close or fairly close links to the common bank of the group.39
(3) Cross-shareholdings between all group members to a varying
degree. On average, one enterprise holds about 1.7% of the public
shares of another enterprise of the same group. This adds up to
alsmost 30% of the share capital held amongst the old Zaibatsu
groups, Mitsui, Mitsubishi and Sumitomo, and almost 20% for the
others.
37
A. Negishi (1994) and (1995).
38
K. Imai, Japanese Business Groups and the Structural Impediments Initiative,
in: K. Yamamura, Japanese Economic Structure, Should It Change?, 167–202 [1990].
39
Horiuchi/Packer/Fukuda, What Role has the “Main Bank” Played in Japan,
2 Journal of Japanese and Int’l Economies, 159 [1988].
anti-trust law 539
(4) Interlocking directorates by rotation of personnel within the

groups’ enterprises.
(5) Limited financial guarantees amongst group members which
finance themselves up to about 20% of outstanding debts.
By increasing the level of capital being raised by issuing new shares,
the function of the Main Bank and the ratio of cross-shareholdings
has decreased during the late 1980s.
Information is exchanged within the business groups during weekly
luncheon meetings of the directors and sub-directors. Apart from an
exchange of information, the economic benefits of Keiretsu groups
may be the protection against hostile takeovers, a minimisation of
financial and technological risks and finally, preferential treatment in
obtaining money from banks.
It is of course difficult to qualify the Keiretsu groups in terms of
their anti-competitive effects. But intra-group trade, boycotts, and
other methods of excluding newcomers from certain business fields
have come under increased scrutiny by the Fair Trade Commission.40
2. Industrial Policy, Government Interference and Anti-trust Law

Nowhere have the limits of successful anti-trust enforcement become
more visible than in cases of government interference through admin-
istrative guidance (Gyòsei shidò).41 Informal guidance by the adminis-
tration is one of the preferred tools of action in the complicated and
often ambiguous relationship between bureaucracy and private indus-
try.42 While expecting to retain a tight grip over the industries within
its jurisdiction, ministerial bureaucracy would in turn try to protect
domestic industry against foreign competition. Retired ministerial
mandarins can expect to find well-paid jobs as advisors to compa-
nies they previously regulated, while companies in turn can expect
smooth sailing with such high-ranking officials on board.43 This
40
FTC, Kigyò shudan no jittai ni tsuite (On the Current Situation of Business
Groups), ed. in 1992. The FTC’s findings are reported in Iyori/Uesugi (1994),
319–351.
41
There is quite ample literature on the subject, i.e. W. Pape (1980); A. Negishi
(1985), 277.
42
Another view is given by H. Baum, Emulating Japan? in: H. Baum (ed.), Japan:
Economic Success and Legal System, 1 [1997].
43
U. Schaede, The “Old Boy” Network and Government “Business Relationships”
in Japan, in: Baum (ed.), Japan: Economic Success and Legal System, 345 [1997].
self-perpetuating system has come under pressure not because of the

activities of the Fair Trade Commission, but rather by the slow dawn
of consumerism in times of economic hardship (1973–1974 and
1992–2000) and the pressure to open markets to foreign competi-
tors. Especially due to the apparent shortcomings of a continuous
policy of government intervention in the beginning of the 1990s,
Japan has embarked on the road to privatisation and limiting the
exemption rules for cartels. By March 1997, re-sale price mainte-
nance schemes for cosmetics were scrapped, while the exemption for
copyrighted works stayed in place.
Against the views of the Fair Trade Commission, holding com-
panies were permitted in 1997.44
3. Private Enforcement
The AMA is meant to protect a bundle of different interests: those
of competitors, consumers and the general public at large. Putting
all these interests under one umbrella one could argue would only
be possible for a disinterested administrative body rather than pri-
vate individuals. While it is certainly true that the AMA and its com-
plementary legislation do not protect individual consumer interests,
it is also true that the FTC is bound to properly protect public inter-
ests and to take appropriate measures. The AMA is meant to pro-
vide the country with a comprehensive law helping to regulate the
economy. It places enforcement in the hands of the FTC. However,
with a staff of about 500, the FTC would be hard pressed to enforce
the law, let alone detect all the unfair trade practices that occur in
the second largest economy of the world. This gives rise to the ques-
tion how far private individuals can rely on the powers of the AMA
to privately enforce their rights. Desirable as this may be, there are
a number of difficulties which stand in the way. When examining
court cases, there appears to be an instinctive reaction to ignore anti-
trust issues because the FTC should be expected to deal with them:
“According to this provision of the Free Gifts and Trade Misrepre-
sentations Act, any person aggrieved by a measure of the Fair Trade
44
Amendment by Law No. 87 of 18 June 1997 and the subsequent guidelines
by the Fair Trade Commission as of 8 December 1997, reprinted in 28 FTC/Japan
Views, 37 [1997].
anti-trust law 541
Commission under the provisions of Sub-Secs. (1) or (3) [approval of

fair competition rules] may lodge an objection. In accordance with
other administrative measures, this means that any objection has to be
based upon a legal interest, in other words, an infringement of a per-
sonal or legally recognised interest, or else the danger of certain,
inevitable damage. Such a legally recognised interest might be one of,
e.g. direct competitors, but not consumers at large. With respect to
the latter, their interests, according to the Free Gifts and Trade
Misrepresentations Act, have to be regarded as the public interest in
general, but in the abstract. In other words, the interests protected by
the Free Gifts and Trade Misrepresentations Act are protected indi-
rectly and not in a way that would give rise to a claim by any indi-
vidual whose interests are meant to be protected under the law.”45
To solve the above quandary, a number of study groups were con-
vened in the mid-1990s to present solutions.46 Basically, two pro-
posals emerged: One was to implement the catalogue of unfair trade
practices under the General Guidelines into the Unfair Competition
Prevention Act and thereby allow private suits by competitors (but
not consumers).47 The solution that was actually taken implemented
a right of injunctive relief into the AMA, now Sec. 24:
“A person whose interests have been infringed or are likely to be
infringed by a violation of Sec. 8(1)(v) [acts of trade associations caus-
ing entrepreneurs engaged in unfair trade practices] or Sec. 19 [unfair
trade practices] and who thereby incurs or is likely to incur serious
damage, is entitled to request cessation or prevention of such viola-
tion from the entrepreneur or trade association engaging in such acts.”48
Although the provision is limited to unfair business practices, also
undue restraints of trade as mentioned under Sec. 2(5), 3 AMA often
45
Decision of the Supreme Court, 1 March 1978, 360 Hanrei Times 132, 134—
“Juice”.
46
M. Matsushita (ed.), Fukòsei na kyòsò kòi to minjiteki kyùsai (Unfair Trading
Acts and Civil Relief ), NBL Bessatsu 43 (1997); Tsusanshò (ed.), Fukòsei na kyòsò
kòi ni tai suru minjiteki kyùsai seidò no arikata (Unfair Trading Acts and how the
System of Civil Relief should be), NBL Bessatsu 49 (1998); Higashide (ed.), Dokusen
kinshihò ihan kòi to minjiteki kyùsai seidò (Anti-competitive Acts and the System
of Civil Relief, NBL No. 55 (2000); Higashide, Dokkinhò ihan to minji soshò (Civil
Suit and Anti-competitive Acts), Tokyo 2001.
47
The 1994 Unfair Competition Prevention Act does not protect consumers
(unlike the AMA) and grants remedies of injunctive relief and damages only to com-
petitors.
48
The provision was introduced by law on 19 May 2000, and came into force
on 1 April 2001.
qualify as unfair business practices, e.g. in the case of boycotts. The

limitation is thus less serious than it looks at first sight.49 Less clear
is the limitation on acts that cause “serious damage”, a limitation
that is not contained in comparable provisions of Sec. 709 Civil
Code or the Unfair Competition Prevention Act. One commentator
has remarked that “It is impossible to give a logical explanation”
regarding this limitation.50
Visser d’Hooft has argued that the Fair Trade Commission itself
was sceptical about private enforcement, regarding this as unwel-
come competition.51 The legislature has tried a balancing approach.
It allows victims of anti-competitive behaviour to seek remedies against
unfair business practices. These are far more uncontroversial than
acts of monopolisation or restraint of trade (e.g. bid-rigging schemes
or cartels) where the hands of the FTC are often tied by prevailing
political interests. And in requiring “serious” damage, the provision
apparently tries to exclude “nuisance” lawsuits by elements of the
Yakuza trying to find new fields of activism. Much will thus depend
on how broad or narrow the courts interpret the limitation to injunc-
tive relief. But the provision will certainly make producers more wary
of schemes meant to uphold retail prices or to enforce other anti-
competitive purposes.
Literature:
M. Ariga, Efforts to Revise the Japanese Anti-monopoly Law, 21
Antitrust Bulletin 703 [1976]; idem., Japan, in: V. Kalinowski (ed.),
Competition Law of the Pacific Rim Countries, Vol. 6, Chapters
1–20, loose-leaf [1989]; A. Bisson, Zaibatsu Dissolution in Japan
[1954]; Fair Trade Commission, Dokusen kinshihò seisaku 30 nen shi
(30 Years of Anti-trust Policy) [1977]; idem., Dokusen kinshi hò seisaku
50 nen shi (50 Years of Anti-trust Policy) [1997]; I. Goto, Kigyòka
no rengo oyobi gòdò (Cartels and Trusts of Enterprises) [1901];
E. Hadley, Antitrust in Japan [1970]; idem., “Zaibatsu” in: Kodansha,
Encyclopedia of Japan, Vol. 8, 361 [1983]; J. Haley, Japanese
Antitrust Law: Commentary and Cases [1982]; Y. Henrinckx, Le
droit de la concurrence au Japon, Revue de droit internationale et
droit comparé, 320 [1985]; H. Iyori, Anti-trust and Industrial Policy
49
Correctly M. Murakami (2001), 32.
50
M. Murakami (2001), 34.
51
W. Visser d’Hooft (2002), 78.
anti-trust law 543
in Japan: Competition and Cooperation, in: Saxonhaus/Yamamura,

Law and Trade Issues of the Japanese Economy, 1986, 56; idem, A
Comparative Analysis on Japanese Competition Law: An Attempt
to Identify German and American Influences, in: Coing (ed.), Die
Japanisierung des westlichen Rechts, 222 [1990]; H. Iyori/A. Uesugi,
Japanese Antitrust Laws and Policies [1994]; H. Iyori/A. Uesugi/
Heath, Das japanische Kartellrecht, 1994; C. Johnson, MITI and
the Japanese Miracle [1982]; Y. Kanazawa, The Regulation of
Corporate Enterprise: The Law of Unfair Competition and the
Control of Monopoly Power, in: von Mehren (ed.), Law in Japan,
480 [1963]; idem, Keisaihò (Commercial Law), 71–95 [1980]; idem,
Keizaihò no shigeki kòsatsu (Historical Introduction into Japanese
Civil Law) [1985]; M. Matsushita, Introduction to Japanese Anti-
monopoly Law, 1990; H. Morikawa, Zaibatsu [1992]; M. Murakami,
Dokusen kinshihò to sashitome, songai baishò (The AMA and Claims
for Injunctive Relief and Damages), Tokyo 2001; A. Negishi,
Administrative Guidance and the Japanese Anti-monopoly Law, 49
RabelsZ 277 (1985); idem, The Business Groups and the Distribution
System, and the Antimonopoly System in Japan, Parts 1 and 2, Kobe
Law Review Int. 18, 33 [1994] and 19, 39 [1995]; W. Pape,
Gyòseishidò und das Antimonopolgesetz in Japan, [1980]; idem, Das
Japanische am Kartellrecht Nippons, Wirtschaft und Wettbewerb
1992, 482; M. Ramseyer, The Costs of the Consensual Myth: Anti-
trust Enforcement and Institutional Barriers to Litigation in Japan,
The Yale Law Journal 94, 604 [1985]; H. Seki, Kògyò seisaku-jòkan
(Industrial Policy Vol. 1) [1911]; A. Shoda, Die neue Entwicklung
und Problematik des japanischen Antimonopolgesetzes, Wirtschaft
und Wettbewerb 1976, 621; S. Tanaka, Kartel hòritsuron (Legal
Problems of Cartels), 40/12 Hògaku Kyòkai Zashi [1922]; U. Toda,
Gòdò-cartel oyobi trust (Cartels and Trusts) [1910]; Teijiro Ueda,
Gòrika wo samatageru sangyò tòseihò (An Economic Control Act
Preventing Rationalisation), 4/4 Jiyù Tsushò [1931]; A. Uesugi,
Japanese Anti-monopoly Policy—Its Past and Future, 50 Antitrust
Law Journal 709 [1982]; idem, Japan’s Cartel System and Its Impact
on International Trade, 27 Harvard International Law Journal 389
[1986]; W. Visser t’Hooft, Japanese Contract and Antitrust Law,
Routledge Curzon Press 2002.
CHAPTER SIX
LABOUR LAW
Hans Peter Marutschke
6.1. Pre World War II Development
1. Introduction
Concerning the development of Japanese labour law, a famous

Japanese labour lawyer once said:
Until 1946, Japanese labour law did not exist at all in any meaning-
ful sense . . . in a burst that may well be likened to an eruption, labour-
relations law emerged as a major component of Japan’s social and
economic structure. Within 20 months of the beginning of Japan’s
occupation, more than 5 million men and women had been enrolled
as members in 17,000 unions whose formation had been encouraged,
and whose protection had been assured, by the occupying forces . . .
thus in Japan unlike America . . . modern labour law may be justly
regarded as a consequence rather than as the generator of organized
labour activity.1
This statement has become a kind of general point of view in Japan
and indeed, lectures on Japanese labour law generally start with the
end of World War II. But this—doubtlessly important—date can not
be looked at as a starting point from zero, because there had been
many attempts to establish a legal framework for labour issues in
the Meiji and Taishò Eras, which were based on social and eco-
nomic changes. The situation in Japan cannot be fully understood
in this regard without the knowledge of these attempts.
1
K. Ishikawa, The Regulation of the Employer Employee Relationship: Japanese
Labour Relations Law, in: Law in Japan ed. van Mehren (1963), p. 439.
pre world war ii development 545
2. Emergence of the Japanese labour force
The beginning of the Meiji Era is always said to have marked radi-
cal change and modernization of Japanese society with a rapid growth
of capitalism, but actually it took some time and more external
influence to bring about rapid growth. In the late 1880s mechanized
factories had already appeared on a widespread basis, but the major
part (84%) of the nations 8,612 companies, as of 1902, were founded
in the few years following the Sino-Japanese War (1894–95) and
thus marked the period of the Japanese Industrial Revolution.2 Some
scholars even argued, with some exaggeration, that ‘whereas the
Industrial Revolution occurred in Great Britain over the latter half
of the eighteenth century, the process took place in Japan between
1895 and 1897’.3
Characteristic of this period were feudal labour relations and
the severe exploitation of workers in the silk, spinning and coal
mining industries, for example, but also in public works. In partic-
ulars, the problem of women spinners and farm village girls being
sold under the guise of “employment contract” to entertainment busi-
nesses has often been treated not only under the aspect of legal his-
tory.4 Although the so called ‘labour question’ has often been discussed
in Japan since the end of the Sino-Japanese War there were, in real-
ity, three distinct labour problems which are still relevant today: they
were related to the supply of labour, to working conditions, and to
strikes and organized labour. The means by which the state, through
its laws and by economic measures responded to labour questions
until the end of World War II, was closely related with the nature
of Japan’s industrial revolution and the formation of its working
class.
2
Sh. Garon, The State and Labour in Modern Japan (1987), p. 10. Another
great influence on Japan’s industrialization was the Russo-Japanese-War (1904–05)
and World War I (1914–18).
3
E. Kawai (ed.) Meiji shòshi no ichidammen (1969), p. 225.
4
For instance G. Yokoyama, The Lower Ranks of Japanese Society (1897) or
W. Hosoi: The Tragic History of Women Factory Workers (1925).
546 labour law
3. Unionism
The history of unionism in pre-World War II Japan is rather short.

As in most other industrializing nations, there were also workers’
protests in Japan against exploitation, but these were rather sporadic.
Unions continued to emerge in the late 1890s among skilled work-
ers, such as printers, iron workers etc. Heavy industry workers, in
particular were the most self-conscious element of the early Japanese
working class. Government enterprises were established early on in
mining, the armaments industry, shipyards, machinery works, and
railway construction. Compared with other workers, employees in
heavy industry had the most tenuous links with the traditional rural
economy. In the government-run Yokosuka Shipyards for example,
carpenters and casting craftsmen were trained by French advisors to
become wood- and iron workers. From the start, male workers con-
stituted the overwhelming majority in heavy industry; the urban
labour pool from the nearby rural areas was composed mainly of
sons of craftsmen, former samurai and peasants.5
When Japanese managers were starting, not just to enforce atten-
dance, but to replace the French in supervising work in the famous
Yokosuka Shipyards, the creation of a work-gang system became
common in about 1882. From five to fifteen workers were grouped
in relatively permanent gangs under a foreman leader who was ‘to
be himself a model of correct behaviour, to guide and exhort the
members of his group in accordance with the orders of his superior,
to make sure that they obey the regulations, to admonish them when
they are in error, and to unite them in earnest industrial endeav-
ours.’ The memorandum sent to the Navy Ministry requesting per-
mission to set up the system explains that direct control of a large
and growing workforce by the technicians had become impossible,
and that the senior workers who were in theory supposed to guide
the others did not do so because their responsibilities were not clear.
What is clear is its roots in Japanese culture—in the moralism of
the passage quoted, and in another of the 21 articles of the work-
group rules which stated: ‘any shirking, misconduct or breaking of
the regulations by any member of the group shall be considered the
responsibility not only of the individual concerned, but of the group
5
S. Garon, The state and labour in modern Japan (1987), p. 12.
as a whole’. Here we see an old method of political control, known

during the Tokugawa Period as the gonin-gumi (five household) sys-
tem, being applied to industry, as a creative use of the principle of
collective responsibility.6
On the other hand, the textile industry, encouraged in the early
1870s by the government to invest private capital in spinning mills,
did not have such organizational systems. It was serviced predomi-
nantly by young, single female operatives, who typically came from
rural areas and worked for less than two years; the mills could thus
take advantage of the abundant supply of cheap, low-wage labour.
From 1889 to 1930, women formed approximately 80% of the cot-
ton textile force. Most were in their teens (15% were younger than
fourteen in 1897) or early twenties.
Influenced by scholars who have had personal contact with the
American Federation of Labour, a first step towards unionism was
taken in 1897 with the establishment of the Ròdò Kumiai Kiseikai
(Society for the Formation of Labour Unions) by F. Takano and S.
Katayama. The unions established as a consequence of the activi-
ties of the Kiseikai were weak in structure and programme, and were
more akin to mutual welfare groups, but still suspicious enough for
the government to repress them under criminal law. Union activity
was put to an end by the Public Order and Police Law (Chian
Keisatsuhò, also called Peace Police Law), which was enacted in 1899.
Under that law, a person who, with the aim of inciting someone to
join a group, committed violent acts, threats, or public defamation,
or incited someone to engage in a strike, was subject to criminal
punishment. Equally, Article 17 of this Act provided for a criminal
penalty against the organizers of labour unions and those “who made
an employer reject an offer for work by an employee, or made an
employee stop working . . . in order to carry out a strike”. Because
of the lack of concreteness of these provisions, nearly any conduct
aimed at improving the treatment of workers could be prohibited
by the police. This suppression effectively disabled Japanese union-
ism for many years. Even though this law was finally replaced in
1925 by the Labour Dispute Conciliation Law (Ròdò Sògi Chòteihò ),
there was no substantial change: it still prohibited agitation, if a
third party, not involved in a labour dispute, induced workers to
6
R. Dore, British factory-Japanese factory (1973), p. 381f.
548 labour law
engage in a concerted work stoppage after the start of conciliation

in a munitions factory or a public enterprise. Additionally, adminis-
trative and penal laws of a more general character could be and
have been used effectively for the suppression of union and politi-
cal movements.
Despite its institutional failure, the Meiji labour movement revealed
patterns of organizational behaviour and workers’ consciousness that
would persist for a long time, exerting influence continuing on the
labour movement and labour relations. A kind of incipient working-
class consciousness can be discerned in the demands raised in seve-
ral labour disputes in the late 19th and early the 20th century. In
separate actions in 1898 and 1899 organized workers pressed, with
mixed success, for improved status within the enterprise, for greater
respect and for an end to what was called already then “discrimi-
natory treatment”. Locomotive engineers struggled for, and gained,
status equivalent to that of office staff, as well as demanding new
job titles with positive connotations to replace existing titles which
were discriminatory.7 The persistent call by Meiji era workers for
respect and treatment on a par with white collar employees reflected
an acute sense of an extremely low place in society. Despite the dis-
mantling of the rigid Tokugawa social class structure, which had
sanctioned discrimination by status, the status of skilled workers had
deteriorated since the Restoration. Whereas, in the Tokugawa era,
artisans ranked above merchants, the latter had become the new
leaders in the capitalist society of the 19th century, preparing and
safeguarding quite effectively, by legal means and (through) legisla-
tion, their newly gained position.
But the weakness of the Japanese labour movement during the
Meiji Period derived also from other factors which determined the
frame work of labour issues. From the point of view of labour pol-
icy, the timing of the Meiji Constitution, promulgated in 1889, was
very significant. It solidified an élitist (and, to a large extent, closed)
political system before the emergence of a widespread labour move-
ment. When a labour movement finally emerged, the road to par-
ticipation in power was already firmly blocked.8
Although fundamental labour rights like freedom of coalition and
freedom of assembly were guaranteed, together with freedom of
7
A. Gordon, The evolution of Labour Relations in Japan (1988), p. 47.
8
E. Harari, The politics of labour legislation in Japan (1973), p. 14.
speech, in Art. 29 of the Meiji Constitution, these guarantees must

be evaluated in terms of what was meant by the rule of law at that
time. The Meiji Constitution might be considered as a modern con-
stitution because it met at least the minimum requirements of con-
stitutionalism—separation of powers and guarantees of individual
rights, as in the examples given above. It is, however, doubtful
whether anything approximating to a true rule of law existed under
the old constitution: separation of power could be understood only
as a formality, or an etiquette. Although the legislative, executive,
and judicial powers were assigned to the Diet, the Cabinet, and the
courts, respectively, it was the Tennò who stood above all, and gov-
ernmental powers were thus concentrated in the hands of one per-
son. Moreover, the freedom rights of the people were guaranteed
by constitutional provisions, but there was protection from executive
invasion, because a law enacted by the Diet could abrogate any free-
dom or right. And this was exactly what happened to the labour
movement, which had referred to the constitutional right of Art. 29.
This can, but must not be, seen as a criticism of the constitu-
tional policy of the Japanese government; this kind of policy was
approved, if not recommended by the German law professor Rudolph
von Ihering, who was approached by Kentarò Kaneko, who had
been sent abroad to obtain, after the promulgation of the Constitution,
the criticism of eminent political scientists and constitutional lawyers.9
But, of course, what had been proved was, in the first place, the
theoretical concept; knowledge of how this concept became praxis
was less known in western countries. But the methods of suppres-
sion of freedom of speech etc. through the Peace Preservation Law
of 1900 (PPL) sometimes led to the opposite of what was intended.
One example, related to labour law ideas, was what happened to
the declaration of the Social Democratic Party (SDP), which was
founded in an ad hoc meeting by Sen Katayama, Isoò Abe and oth-
ers in May 1901.10 The Party was promptly banned, and the news-
papers which published the party declaration were all indicted under
the PPL. When found guilty, all the newspapers were required to
publish the full text of the judgement, which contained the text of
9
K. Takayanagi, A century of innovation: The development of Japanese law,
1868–1961; A. v. Mehren (ed.) Law in Japan (1963), p. 8.
10
See full translated text of the declaration of the socialist party of 1901 in D.J.
Lu, Sources of Japanese History vol. 2 (1974), p. 90f.
550 labour law
the party declaration in its entirety. Thus the founders of the SDP
gained a much wider audience than they could otherwise have
expected. This declaration contained, inter alia, the following: “The
ideals of freedom and equality, which were spread from France to
the Western European countries and to America . . . contributed
greatly towards the realization of egalitarism in political matters.
However, with the immense material progress in the past centuries
the social classes of aristocracy and common people have been
replaced by the new classes of the rich and the poor. . . . When we
look at the political conditions in our country, we discover that all
political agencies are operating for the benefit of the rich . . . We
must remember that the majority of the country consists of those
tenants who till the fields or those workers who sweat in the fac-
tory . . . Should not the political parties provide the means to extend
to them their political rights? . . . today’s political parties do not rep-
resent the will of the majority of the people . . . our party shall work
(therefore) towards the following ideals: . . . A Bureau of Labour shall
be established to investigate all matters pertaining to labour; . . . No
school children shall be permitted to engage in labour. . . . No women
shall be permitted to engage in such occupations as shall be detri-
mental to their morality or health . . . Night shift work for women
and children shall be abandoned. . . . No work shall be performed
on Sundays, and the working hours shall be limited to eight hours
a day; there shall be an employment compensation law under which
the employer shall be responsible for paying adequate compensation
for injuries suffered by his employees while at work. . . . there shall
be a labour union law under which workers’ rights to organize freely
can be recognized, and be given adequate protection. . .”.
Thus the leaders of the SDP still thought they could gain their
political aims by legal means, but this belief was later shattered,
when leadership was taken over by a more radical activist wing of
the party. Nevertheless the programme shows the already strong
influence of modern ideas on labour rights in Japan at that time.
The outbreak of World War I thrust Japan into the position of
supplying the warring nations of Europe with war material and sup-
plying the markets of Asia with consumer goods. As a result, the
Japanese economy started to move towards a ‘second industrial rev-
olution’ with the sudden growth of heavy industry, especially metal
working, machines and equipment, and shipbuilding. On the other
hand, the end of the war also saw the end to the strong demand
for supply of such goods, so that the Japanese economy had to reor-
ganize itself, with severe consequences for the labour market.
Beyond that Japan was confronted after World War I, through
the first ILO Congress in 1919, with the international relations of
labour problems, which made clear the importance of labour unions
for industrial societies. This experience led to attempts at labour
union legislation, supported by the moderate but strong labour orga-
nization Yùaikai (Friendship Association, 30.000 members in 1918).11
Several bills had been submitted, which were, however, strongly
opposed by industrialists. All efforts at legislation finally collapsed in
the Upper House in 1931.12 Major points of dispute among the var-
ious proposals were questions such as whether governmental recog-
nition of unions would automatically occur, merely on the basis of
reporting by the unions, or whether it should be conditional on gov-
ernment licensing.13
Whereas attempts for legislation of collective labour issues had
failed, there had been successful attempts to establish labour pro-
tection laws. Their practical meaning has been rather limited, but
nevertheless it shows a gradual increase in awareness of the problems.
Legal regulation of employment questions started with the enact-
ment of the Japanese Civil Code in 1898. But, as under the Meiji
Constitution, the benevolent paternalism of employers and preva-
lence of an extended family system created little need for govern-
ment interference with rules of employment. On the other hand, the
Civil Code was dominated by the new idea of primacy of contract,
which led to the situation that, whatever cases might arise over terms
of work, these could be disposed of only through the Civil Code
which, in fact, strengthened the legal position of the employers.
4. Factory Law
Finally, after about 20 years of discussion about how to protect work-

ers against exploitation—through interference of the government or
11
In August 1919 it changed its name to Dai Nippon Ròdò Sòmei Yùaikai, and in
1921 to Nihon Ròdò Sòmei.
12
See H.P. Marutschke, Anfänge der Gewerkschaftsbewegung in Japan, Kobe
Law Review 22 (1988), p. 25, 31ff.
13
For more details see K. Sugeno, Japanese Labour Law (transl. L. Kanowitz),
p. 8.
552 labour law
benevolence of the employers, the Factory Law (kigyòhò ) was enacted

in 1911. It covered factories ordinarily employing more than 15
workers,14 or designated as having dangerous or unsanitary condi-
tions. The Law established two kinds of labour standards: one con-
cerned the employment of women and minors, and established
minimum ages (12 years) and maximum working hours for female
workers (children under 15 years were restricted to 12 hours per day
with no restriction for weekly working hours), prohibited night work,
required fixed holidays and rest periods, and restricted employment
in dangerous and insanitary business. The second established a gov-
ernment agency to inspect factory safety and insanitary conditions,
and authorized it to issue orders. It created a system for compen-
sation for sickness or death and regulated hiring and firing of work-
ers. It also regulated apprenticeship for young workers.
But it took another five years to enforce this law through the
Factory Law Enforcement Regulations of 1916, which additionally
required the employer to compile a register of workers’ names and
of its equipment at the factory, and the payment of wages in cash
at least once a month as well as licensing to administer workers’
savings accounts.
The implementation of the Factory Law required the government
to know which firms were large enough to be covered by the law and
which were small enough to be exempted. The firms covered by the
Factory Law had to conform to government standards by which
privileges were granted and penalties were imposed. These industries
became part of a ‘formal sector’. Because the government was inter-
vening in the labour market in order to protect the workers against
employer abuses, occupational hazards, unemployment and other
detriments, this formal sector changed to become a ‘protected sector’.15
Together with the adoption of the above mentioned Labor Dispute
Conciliation Law in 1926, which provided for a tripartite govern-
ment, and employers’, and workers’, commission for settling strikes
and other conflicts between management and employers in industry,
there were added provisions to the Factory Law, requiring two weeks
prior notice (or payment instead) in case of dismissal from employment.16
14
Amended to more than 10 employees in 1923.
15
K. Taira, Economic development, labour markets and industrial relations in
Japan 1905–1955, The Cambridge History of Japan Vol. 6 (1988), p. 609.
16
Sugeno, p. 7.
The fact that, at the end of the 19th century, female factory work-
ers were typically employed in silk thread manufacturing and spin-
ning and became exploited by private employment agencies in the
private sector, whose activities were accompanied by trading in
human beings and forced labour, gave rise to a need for regulation.
Internationally, the ILO’s 1919 general meeting adopted the ‘Treaty
Concerning Unemployment’ and a ‘Recommendation Concerning
Unemployment’, which were both based on the fundamental notion
that ‘labour was not a commodity’. This principle had been pro-
claimed in Title 13 sec. 1 of the Versailles Treaty, which laid the
foundation for the establishment of the ILO. The ILO established
the principles of not allowing private enterprise to intervene in work-
ers’ job finding and job seeking activities, the setting up of govern-
ment-run employment exchanges and the prohibition of such activities
by private enterprise. The Treaty was ratified by Japan in 1922.
The Employment Placement Law, which established employment
offices in the municipalities and prohibited profit-making placement
enterprises, was therefore enacted in 1921. In 1938, a new Employment
Placement Law was enacted which placed occupational placement
policy under national administration and subjected the supply of
labour and the recruitment of workers to a permit system. This was
the predecessor of the actual Employment Security law.17
Other pre-World War II—labour legislation included the Workers
Injury Assistance Law which, together with laws and protective sys-
tems enacted during the war (Factory Employment Hours Decree,
Wage Control Decree, Shop Law),18 and the experiences of these
regulations, resulted in the elaboration of post-war labour legislation.
17
Sugeno, pp. 39–40.
18
This law, from 1938, imposed a duty on shops to close by ten o’clock in the
evening and to provide employees with one day off each month.
554 labour law
6.2 Labour Legislation and Labour Law Development after

World War II
1. Trade Union Law
Japanese labour law did not exist in a meaningful sense until 1946.
This year indeed is a kind of landmark in the history of Japanese
labour law.
Under the authority of the Supreme Command for the Allied
Powers (SCAP)19 the American forces began the occupation of Japan
in September 1945 with the firm intention of dismantling Japan’s
authoritarian wartime apparatus and introducing democracy. But the
policy of democratization was not limited to formal political institu-
tions. The occupation authorities assumed that political democracy
needed a ‘democratic social environment’ in order to stabilize the
structure of Japanese society. As the best method of creating this
structure was not entirely clear at the outset, social reforms emerged
in a somewhat uncoordinated fashion, as different programmes were
initiated independently by various sections of the SCAP. Some of
these programmes aimed at a fairer distribution of national wealth
in order to eliminate social inequities, which were held responsible
for the rise of fascist-conservative forces in pre-war Japan. Others
asked for the promotion of strong social forces able to defend the
new democratic political structure against conservative reaction or
conservative backsliding, some programmes, finally, were aimed at
encouraging the spread of ‘democratic’ values and ideals among the
Japanese people, especially the younger generation.20 All these ini-
tiatives, though coming from different directions, had a strong impact
on the introduction of the principal ideas of modern labour law on
the one hand, and the development and rapid implementation of
modern labour laws on the other. Of course, one of the precondi-
tions of this development had been the measures taken for economic
deconcentration intended to break the economic and financial power
of the large companies, as well as a consequent land reform programme
19
SCAP was also used as a reference to the supreme commander, General
MacArthur of the U.S.
20
P. Duus, The rise of modern Japan (1976), p. 245.
labour legislation and development ww ii 555
aimed at eliminating tenancy, creating a larger owner-cultivator class

and encouraging the growth of a more prosperous countryside. The
labour section of the SCAP, however, staffed mainly by former
American union officials and labour experts, was the first one to
take concrete action immediately after the capitulation of Japan. It
undertook to create an independent trade union movement, pro-
tected from legal harassment by government or business. Strong
unions were seen as essential for the creation of antimilitarist, pro-
gressive, and democratic public attitudes. The perspective of this idea
was already clear.
Together with the promotion of workers’ protection measures, the
encouragement of labour unionism had become, from the beginning
of the occupation, a policy of first priority. The importance of this
policy was demonstrated by the fact that already in December 1945
the draft of a Trade Union Law (Ròdò Kumiaihò) had already been
enacted and promulgated as the first legislation measure after the
War, as the result of a tripartite Labour Legislation Study Com-
mission. Based on a thorough analysis of the union movement in
Japan, the draft had proposed five points as guidelines:21
– The fundamental right should be given to industrial and agri-
cultural workers to join trade unions in order to improve their employ-
ment terms and mutual protection unless those organizations follow
materialistic or nationalistic aims. The freedom of collective bar-
gaining implies the freedom of assembly and speech. In order to
ensure this freedom all kinds of laws which hinder the free organi-
zation of trade unions and all union activities, should be abrogated.
– All democratic organized and governed unions should be given
the right to bargain collectively with employers on employment,
wages, hours and working conditions. However, the military gov-
ernment is entitled to “consider invalid any collective bargaining
agreement in which the workers’ representative is not deemed to
have been freely chosen.”
– Strikes or other work stoppages are allowed except in those
industries whose continuous operation is indispensable for military
security or operations.
21
See S.-J. Park, U.S. Labor Policy in Post-war Japan (1985), p. 13.
556 labour law
– The major part of industrial disputes is expected to be solved

through direct and voluntary negotiations between the worker and
the employer; arbitration should take place only at the request of
both parties; in essential industries, labour disputes may be medi-
ated or conciliated by Japanese acceptable to both parties. In case
of failure the military government may arbitrate. Several measures
aimed at relieving the load of industrial disputes are to be consid-
ered: to encourage region-wide or industry-wide collective bargain-
ing agreement; to allow shop committees consisting of employer and
employee representatives; to establish minimum standards of hours
and working conditions for particular industries.
– Japanese government agencies aimed at preventing free labour
movement should be abolished; all those who have been directly
involved in obstructing free labour movement should be declared
ineligible as conciliators, mediators or arbitrators. The military gov-
ernment should have a labour section to administer military gov-
ernment policy with regard to employer-employee relations. . . .
With the enforcement of this draft on March 1 1946, workers’ rights
to organize, bargain collectively, and engage in labour disputes were
formally guaranteed—before the proclamation of the new constitu-
tion on November 3, 1946. The Constitution, which came into effect
on May 3 1947, guaranteed in its Articles 27 and 28 fundamental
labour law principles and rights, such as the right and the obliga-
tion to work (Art. 27 sec. 1) and the statement that minimum stan-
dards of wages, working hours, rest and other working conditions
are to be fixed by statute (Art. 27 sec. 2), or the right of workers
to organize, bargain collectively and carry on other collective actions
(Art. 28). The basic policy expressed in these regulations, concern-
ing individual industrial or employer-employee relations, rests upon
the guarantee for all people of the right minimum standards of whole-
some and cultured living—the so-called right to livelihood provided
in Art. 25 of the new Constitution.
The new freedom of political rights seemed not to stop but rather
to encourage labour unrest, which was partly misled and abused by
some leftist activists. Advisors to the government stated, therefore,
that ‘labour unrest is the most serious impediment to Japan’s eco-
nomic recovery . . . so long as it persists, neither domestic nor for-
eign capital will be attracted to Japanese industry . . .’. In order to
upgrade and ensure the competitiveness of Japan’s economy, the
elimination of communist elements from the labour movement and

the amendment of labour laws were advocated, reasoning, that ‘the
policy written into the law to encourage trade unionism had had
the effect of misleading the socially immature and inexperienced
masses in Japan into confusing democracy with communism.’22
But the Japanese labour movement cannot be considered as being
only a question of political theoretical classification. There were also
efforts on the part of legal theorists to lend active intellectual sup-
port to the new labour movement by giving labour problems a the-
oretical basis for their solution. The leading promoter in this field
was Izutarò Suehiro (1888–1951), legal expert to the government
and professor of civil law at Tokyo University. His exposure during
studies abroad (1918–1920) to the case study method at the University
of Chicago and, in Switzerland, to the ideas of Eugen Ehrlich,
founder of the discipline of sociology of law, led him to take a pos-
itive approach to civil law. He stressed the importance of judicial
precedent and organized a study group at his faculty to examine
civil law decisions of the Supreme Court. He also became interested
in the problems of farming villages, leading him to introduce the
sociology of law to Japan, and was the first scholar before World
War II to give lectures on labour law. Suehiro retired from the uni-
versity in 1946 to become the first chairman of the Central Labour
Relations Commission.23 He observed that during the first year of
the Occupation, labour disputes were settled by the Japanese them-
selves without any necessity for intervention by the occupation troops.
However, labour disputes were accompanied by the ‘seizure and
exercise of managerial control’ by the workers. These activities were
seen by the Government as irresponsible with regard to rebuilding
a ‘new Japan’. Suehiro, instead, tried to focus only on the legal
question, writing a widely published article about ‘The Legality and
Limitations of Labour’s Exercise of Managerial Controls’, which was
criticised as encouraging workers to act illegally. But Suehiro confined
himself to the argument that ‘labour possesses a right to dispute as
a result of the enactment of the new labour laws’, especially the
Labour Union Law. Article 1 of this law made it perfectly clear,
that ‘those legal objections which formerly were made to the orga-
22
S.-J. Park, p. 29.
23
I. Katò, Kodanshas Encyclopedia of Japan, vol. 7 (1983), p. 255.
558 labour law
nization of labour are no longer valid. The labour force, acting

through its unions, is now expected to bargain collectively. Both
labour unions and employers are given ‘equal rights of dispute’ and
in the exercise of these rights, as in any true bargaining transaction,
each party is free to use arguments, inducements, and pressure in
seeking to prevail.’
Related to a temporary assertion of managerial controls by labour,
Suehiro saw at least two arguments in favour of the acceptance of
such an action as proper and legal:
– Under present law, labour is given the right to strike—a power-
ful weapon which can exert powerful influence on employers, which
is totally legal. It would not, therefore, be logical to regard tempo-
rary assumption of managerial control as illegal.
– The rules of the Japanese Civil Code concerning ‘Business man-
agement’ (§§ 691–702) state that ‘one person, without previous author-
ity, and without legal authority to do so, manages the affairs of
another person. To apply this theory of business management to
labour’s exercise of managerial powers in cases where employers have
rigorously and specifically protested against labour controls would
appear to be improper and unwarranted.
These questions were obviously related to the conception of property
rights, but Suehiro argued that ‘the old conceptions of property are
not in trend with the times. As a practical matter, the capitalist now
merely contributes ownership to the business: this is combined with
labour in general, and with management to result in operations . . .24
Nevertheless, this typical kind of labour activity in the first days
of its liberalization after the war could not be accepted as conforming
to the Government’s (SCAP) policy. Although production control did
not constitute a crime according to the provisions of the Criminal
Code, it was considered to be illegal in a special document, arguing:
Generally speaking, production control relates to a case in which labour-
ers occupy a factory of works, possess the installation, funds, materials
etc., for the purpose of realizing their demands. Production control aims
at placing the right to dispute above property rights and consequently
is against the principles protected by law in the interest of maintaining
equal status. Production control is against the spirit of the Labour Law
24
S.-J. Park, p. 60.
which aims at the realization of placing capital and labour on equal

footing. Production control is the total occupation of the factory or
works in disregard of the owners’ wishes. . . .The production control
deprives the employer, except for the chance to resort to judicial pro-
cedure, of countermeasures such as lockout.25
Finally, in 1949, on the initiative of SCAP, amendments to the Trade

Union Law were enacted. Although having the same structure and
design, in a number of important respects there were quite remark-
able differences between the two laws: the first point of the amend-
ments was to strengthen union governance and employee independence
from employers, removing the reporting obligations of unions, abol-
ishing administrative agency intervention and supervisory authority
over labour unions, and expanding the category of employers’ direct
representatives who could not become union members and employ-
ers’ financial support that would disqualify a union. The second
point, aimed at ensuring trade union democracy, was to require
statements on fundamental union rights, election of officials and other
important matters to be incorporated in union constitutions. At last
there was also a complete revision of the unfair labour practice sys-
tem. Employers’ refusal of collective bargaining and their control of
unions was added to the list of unfair labour practices; and the pro-
cedure for obtaining remedies were changed to extend from crimi-
nal penalties to forms of administrative relief.
Among Japan’s existing laws, it is this amended Trade Union Law,
enacted in 1949, which governs the formation and activities of labour
unions. As stated in Article 1, the main aim of the law is to ‘elevate
the status of workers by promoting their equal standing with their
employers in bargaining’. This goal should be attained by protect-
ing the exercise by workers of autonomous self-organisation and asso-
ciation in trade unions so that they may carry out collective action,
including the designation of representatives of their own choosing to
negotiate the terms and conditions of work, and to encourage the
practice and procedure of collective bargaining resulting in collec-
tive agreements governing relations between employers and workers.
The Trade Union Law thus strives to promote collective bargain-
ing based on the concept of equality between employers and workers,
25
S.-J. Park, p. 61.
560 labour law
and to protect worker organisations and their activities directed toward

that end. One of the necessary steps was to exempt unions from
criminal and civil liability. Trade unions are, in consequence, affirm-
atively protected by the Law.
The predominant type of trade union in post-war Japan was the
enterprise union, which organized workers in specific enterprises,
establishments or factories, without regard to craft. Alongside the
adversarial process of collective bargaining, it is typical for Japanese
trade unions to cooperate with employers by participating in the
management of the enterprise to ensure its prosperity, and therefore
conflicts with the Trade Union Law may be anticipated, as the law’s
premissed on the adversarial aspect of union behaviour. Enterprise
unions and enterprise industrial relations must function in confor-
mity with the principles of the law, especially independence from
employers, union democracy etc. But if these principles are observed,
labour-management relations are entrusted entirely to the parties.
2. Labour Relations Adjustment Law
Shortly before the adoption of the Constitution one more important

labour law was promulgated in September 1946, the Labour Relations
Adjustment Law (Ròdò Kankei Chòsei Hò ), which established proce-
dures for dealing with labour disputes, regulated “dispute acts” in
public utility enterprises, and prohibited dispute acts by ordinary civil
servants. On the other side, it prohibited employer practices that
would interfere with or abstract the workers’ exercise of these rights,
following almost the exact wording of the American Wagner Act.
Unfair labour practices (Futò Ròdò Kòi ) included employers’ refusal
to recognize unions or to engage in collective bargaining, discrimi-
nation against or discharge of workers for participating in union
activities, and interference in internal labour union affairs. The unions
were required to register with the government and to establish that
they were bona fide democratic, independent and collective bargain-
ing organizations in order to gain protection under the law.
One more important point of regulation was the provision of three
procedures for labour dispute resolution:26 conciliation (assen), medi-
26
K. Sugeno in Kodanshas Encyclopedia of Japan vol. 4 (1983), p. 349.
ation (chòtei ) and arbitration (chùsai ).27 Conciliation is the most infor-
mal of these procedures, conducted through conciliators designated
by one of the nation’s Labour Relations Commissions, established
by the Trade Union Law. Mediation, a more formal procedure, is
performed by a mediation committee established by a labour rela-
tions commission, with representatives from labour, management and
the public. This committee is expected to present mediation pro-
posals to the affected parties. Settlement proposals developed in either
mediation or conciliation have no binding power over the parties to
the dispute. Settlement can only come about through the voluntary
compliance of the parties.
In contrast, the third type of dispute resolution procedure, arbi-
tration, results in settlement decisions that are binding on the par-
ties. Arbitration is performed by an arbitration committee, which is
established by a labour relations commission and is composed of
members of the public. Arbitration procedure occurs only with the
consent of both parties; compulsory arbitration is not practiced in
Japan. One exception only concerns the so-called emergency rec-
onciliation (kinkyù chòsei ), added in 1952. If a strike will seriously
damage the national interest or popular livelihood, the prime min-
ister is authorized by the law to suspend a dispute for up to 50 days
(Art. 35–2–35/5; 37, 38 Labour Relations Adjustment Law).
The purpose of this law was to facilitate the smooth operation of
the new system of labour relations to be created under the Trade
Union Law. Its function must be seen together with the fundamental
changes that took place in Japan after its promulgation: the first
freely held general elections on April 10, 1946 brought forth a mul-
tiparty system, and unions and their memberships increased tremen-
dously from 379,631 workers organized in 508 unions in December
1945 to 3,813,665 members in 12,923 unions in July 1946.28 The
rapid unionization encompassed not only workers, but also employ-
ees in management ranks and, in some cases, even the employers
themselves; this set the dominant pattern of post-war unionism as the
“enterprise unions” became the basic unit of labour organisation.29
27
(when used in civil proceedings, chòtei means conciliation).
28
Ayusawa, History of Labor, p. 258; E. Harari, The Politics of Labour,
p. 55/56.
29
Harari, p. 56.
562 labour law
As the new draft imposed certain constraints on the freedom of

union activities, there was no unanimous approval: civil servants actu-
ally engaged in government administration were denied the right to
strike; provisions were made for a cooling-off period and advance
notification of intention to engage in acts of dispute by employees
engaged in public welfare works; and finally, the labour relations
commissions, created in conformity to the Trade Union Law, were
given a central role in settling disputes. This last point should prove
the self-restraint of the government in not becoming involved in
industrial relations.
3. Labour Standards Law
The third pillar of modern Japanese labour law was built up with
the promulgation of the Labour Standards Law (Ròdò Kijun Hò ) in
April 1947, which was enforced on September 1, 1947. In conse-
quence of the provisions of Article 27 of the Constitution this law
stipulated protection for women and young people and set minimum
standards for terms and conditions of all individual and collective
employment contracts. Minimum requirements cover prior notice in
case of firing, fair standards for wages and working hours, safety and
hygiene in plants and other places of business, and the employer’s
duty to provide workers with compensation for accidents at work.
The law stipulated further that working conditions must be agreed
upon bilaterally on an equal level, and it prohibited discriminatory
treatment of workers, forced labour and exploitation.
4. Postwar Changes
The above mentioned, so called “three labour laws” are still the
basis of today’s Japanese legal framework for labour relations. Together
with the labour-related provisions of the new Constitution, they
expressed the will for democratization and the guarantee of equal
rights for everybody. Therefore, initially, the emancipation and pro-
tection provided by the three laws were to cover all workers, with-
out distinction against public employees and workers in public utilities.
But changes in the political attitude of the US, especially the
intensification of the Cold War, brought serious change to the hitherto
somewhat liberal condition of Japanese labour law. The worsening

of the relationship between the US and the Soviet Union marked
the change in occupation policy after 1948; the strategy was to make
Japan “a bulwark against Communism”, which meant also to exer-
cise stricter control over the union movement, which has—from its
beginning—been influenced by communist ideology and close con-
nections of Japanese union leaders to the Soviet Union. Successive
union offensives in government and public agencies in the late 1940s—
which became obvious in the final call for a general strike on 1st
February 1947, where mainly public sector unions demanded a min-
imum wage legislation and a special year end bonus—but with the
political intention to overthrow the conservative government—lead,
consequently, to the prohibition of public sector employee strikes and
major amendments of the Trade Union Law. In December 1948,
the National Civil Servants Law (Kokka Kòmuin Hò) was also amended,
especially with regard to the denial of the collective bargaining right
and of the right to strike for civil servants. The railways, the tobacco
monopoly, and later the telephone and telegraph industries—all of
which were government-operated—were designated public corpora-
tions and placed under the supervision of the new regulations. But
to retain conformity with the stipulations of the Constitution, these
restrictions were replaced by special procedures for collective bar-
gaining and a distinctive system for adjusting labour disputes, in the
Public Corporations Labor Relations Law (Kòei Kigyò Ròdò Kankei Hò ).
The fact that, by these measures, workers in the public sector
came to be covered by laws different from those applied to private
industrial workers, and that later on different laws covered different
types of public workers, fixed the starting point of a never-ending
discussion over the meaning of “worker” (ròdòsha) and the applica-
tion of the guaranteed fundamental right to strike in Art. 28 of the
Constitution to public workers. In a very controversial decision of
1973 the Supreme Court30 maintained the restrictions for the pub-
lic sector as not offending against the constitutional order.
It is part of the case history, that among the numerous issues con-
cerning the rights of workers after World War II, the question
30
Judgement April 25, 1973 keishù 23–5–305.
564 labour law
whether government officials should be allowed to strike has caused,

and actually still causes one of the most heated debates, in public
as well as—and even more—in academic circles. The problem is
focused on only a few provisions of the National Public Employee
Act of 1947 (NPEA) and the Local Public Employee Act of 1950
(LPEA); Article 98 NPEA provides, that ‘(public) employees shall not
engage in . . . a strike, sabotage or other activities of similar nature . . .
against the public, their employer, which is represented by the gov-
ernment. Nor shall they attempt to engage in, or to conspire, abet
or instigate, such illegal activities.’ Followed by Article 110, which
says, that ‘those who either conspire, abet or instigate illegal activi-
ties, defined in Article 98, or attempt so to conspire . . . shall be pun-
ished by imprisonment for not longer than three years or a fine of
not more than 100,000 ¥. Public enterprises, such as the former
Japan National Railway, were also covered by these provisions.
At first the Supreme Court simply took the view that government
employees’ right to organize etc. could be restricted because they
were servants of the whole community, expressed in Article 15 of
the Constitution ( judgement of April 8, 1953). However, it came to
be doubted whether it was appropriate to prohibit a strike for all
public employees, regardless of the nature of their work. The Supreme
Court later held that the above mentioned provisions would be uncon-
stitutional if literally interpreted, because they provided for a sweep-
ing prohibition of a strike by public employees, which could not be
justified as reasonably required by the nature of their work, and that
these provisions should be construed as making only such acts pun-
ishable as were done in the course of a strike that was of a highly
illegal nature (if, for example, there is no obvious relationship to the
legitimate purpose of the union), a strike that appealed to violence,
or a strike that brought about serious detrimental effects upon ordi-
nary people’s lives. The same statute should apply if there were acts
abetting or instigating a strike which exceeded the extent ordinarily
permissible in a labour dispute (Supreme Court Judgements of October
26, 1966; of April 2, 1969 and of March 23, 1971).
But, perhaps related to changes in the international economy, the
Supreme Court—with quite a narrow majority—found it necessary
to overrule, with its judgement of April 25, 1973, its above men-
tioned precedents. The case had taken fifteen years, beginning in
1958 with the punishment of the leaders of the zennòrin (Labour
Union of the Ministry of Agriculture and Forestry) for their incitement
of public workers to protest during working hours against the amend-

ment of the Act concerning Policemen’s Performance of their Duties,
because this would open the door to abuse of power by policemen.
The first instance had held with the accused, the revision of the sec-
ond instance was affirmed by the Supreme Court, arguing that the
so-called ‘fundamental rights of labour’ guaranteed under Article 28
of the Constitution should be extended to public employees. However,
such rights are guaranteed as a means of achieving the advancement
of the economic conditions of the workers and not as an end in
themselves. In this sense, they have to be regarded as not absolute,
and they are subject to restrictions imposed in the common interest
of the people as a whole, including workers.
Amendments to the Trade Union Law, that were passed on the
initiative of SCAP in 1949, concentrated on different points. The
first was to strengthen union governance and employee independence
from employers by removing the reporting obligations of unions,
abolishing administrative agency intervention and supervisory author-
ity over labour unions, and by expanding the category of employers’
direct representatives who could not become union members and
employers’, financial support that would disqualify a union.31 Besides
additional formal requirements concerning union constitutions there
was also a complete revision of the unfair labour practice system
( futò ròdò kòi seido). It was extended to employers’ refusal of collec-
tive bargaining and their control of unions, and remedies became
characteristic of administrative relief rather than criminal penalties.32
On the other hand, a provision was added to the effect that in no
case the use of violence be interpreted as a proper act of a labour
union.33
In 1950, the General Council of Trade of Japan—Sòhyò—was
founded, intending to promote a free and democratic trade union
movement, but also engaging strongly in political matters of that
time, especially concerning the impact of the Korean War on Japan.
As the War developed into a worldwide concern, Sòhyò demanded
a peace treaty with the Allied countries, and denounced the rear-
mament of Japan and the involvement of UN forces in the War.
This political engagement led to the separation of Sòhyò and the
31
Sugeno, p. 9.
32
Sugeno, pp. 9–10.
33
Ariizumi, p. 98.
566 labour law
formation of the Japanese Trade Union Congress Zenrò, which later

became Dòmei, the Japanese Confederation of Labour.
The three labour laws can be looked at—together with the later
amendments—as a firm foundation for the development of post-war
Japanese labour law. Of course, this development is not only char-
acterized by law-making, but also by social and international con-
ventions and the economic progress.
After consolidation of the labour law structure during the first
decade of the post-war period, including fundamental measures for
job security, the second decade was marked by the beginning of the
growth of the Japanese economy, which implemented changes in
union activities. This process is reflected in the establishment of the
Japan Productivity Center (Nihon Seisansei Honbu) in March 1955,
which improved—with the strong support of the US—the expansion
of productivity, labour-management consultation and co-operation,
and fair distribution of economic gains among management, workers
and consumers.
In the same year a new wage negotiation mechanism was devel-
oped by private sector industrial organizations of Sòhyò in order to
consolidate the power of individual enterprise unions, and to dis-
seminate the result of a negotiation to other unions for the benefit
of “weaker unions”. This shuntò, called “spring wage negotiation
round,” resulted in high rates of wage increases.
In 1956, the Federation of Independent Unions of Japan, Chùritsu-
ròren, was established with the objective to unify the labour front and
to overcome the opposition between Sòhyò and Zenrò. But as differences
were too great, these efforts were in vain as separation clearly demon-
strated by changing Zenrò into Dòmei in 1964, bringing the number
of national union centres to four: Sòhyò, Dòmei Chùritsuròren and
Shinsanbetsu (founded in 1952).
As the wage struggle came to a deadlock after the Japanese econ-
omy stabilized in the later half of the 1970s with steadily growing
perspectives, and as institutional and political demands became the
main purposes of the trade union movement, the necessity for a
nation-wide united labour front was realized by many people as a
problem of the first order. In the following years, different steps were
taken to achieve this goal: In December 1982, the Japanese Private
Sector Trade Union Council (Zenminròkyò ) was set up outside the
framework of the four national centres, comprising 41 industrial fed-
erations and 4.3 million union members. Changing its organizational
form from a council to a confederation, it was renamed in November

1987 as Rengò,34 which has became the largest nation wide confed-
eration of trade unions in Japan, dealing as such not only with
labour-relations, but also with institutional and political questions.
Rengò now covers 79 organizations including about eight million work-
ers in both public and private sectors. Follow-up organizations of
the dissolved Sòhyò were disbanded in 1993 and 1994, which led
partly to the strengthening of Rengò, partly to the establishment of
new leftist unions like Zenròren and Zenròkyò to form a counter-force
to the more conservative policy of Rengò.
5. Individual Labour Relations and Labour Protection
Though regulated in the Civil Code, employment contracts are not

left to the parties of individual labour relations but regulated by spe-
cial laws, the most fundamental of which is the Labour Standards
Law (LSL). The Civil Code provisions have only supplementary func-
tion. Besides the legislation, collective agreements, work rules and
case law play a decisive role in the protection of workers’ rights.
When a contract of employment conflicts with the standards set by
the collective agreement, the offending provision is void and the stan-
dards set by the agreement will be applicable. This regulation of
Art. 16 of the Trade Union Law is similar to Art. 13 of the LSL,
which says that employment contracts which are against the LSL
are replaced by the conditions provided by this law.
Work rules are established after consulting the employee or the
enterprise located trade union, or a representative of a majority of
the workers. The rules normally cover working hours, wages, meth-
ods of payment, retirement etc. As the LSL provides merely for
prior consultation and not for a joint decision, there is no guarantee
that the trade union’s or employee’s will is taken into consideration.
One fundamental requirement of the LSL is the equal treatment
of employees (Art. 3) in respect of wages, hours of work etc., regard-
less of nationality, religion or social status. But the Supreme Court,
on the other hand, ruled that employers were free to set standards
and conditions of employment. This led to a judgement that a
34
Japanese Private Sector Trade Union Confederation.
568 labour law
company which was sued for refusal to employ a person who had
taken part in a students political movement and did not disclose this
fact during the interview, prevailed in this trial.35
The problem of sex discrimination has been excluded from Art.
3 of the LSL and treated in Art. 4, but reduced to a very narrow
scope of application, covering only wages. It has therefore, not been
held against the LSL, if female workers are not given positions as
high as those of male employees, or are not admitted to career
courses, and therefore receive lower wages. Only ten years after
International Women’s Year in 1975, and five years after the UN
Convention on the elimination of all forms of discrimination against
women in 1980, the Law for Equal Opportunities in Employment
of Women was adopted in 1985,36 coming into force April 1, 1986,
the same year that the UN Convention was ratified.
The new law may have brought more self-consciousness to work-
ing women, but as the elimination of discrimination in employment,
positioning and promotion was provided as a target, rather than as
a legally binding requirement,37 there is ongoing criticism of the lack
of effective means to ensure the implementation of this law, which
is by and large in major points—left to the goodwill of the employer.
One major purpose in the international comparison of labour law
development is concerned with working hours, since Japan is still
the leading nation in the world in this field, with its peak reaching
in 1960 with an annual 2432 hours. Due to a reduction in regular
working hours as a result of high economic growth and increased
productivity the overall working hours of Japanese workers declined
to 2064 hours in 1975, to increase again slightly in the following
period of stable economic growth.
All these figures have to be looked at as average numbers; actual
working hours decreased the greater the size of the enterprise. In
December 1986 the Central Labour Standards Council therefore
proposed a new draft and with the support of the Ministry of Labour
major changes in working hours legislation were achieved, which can
be summarized under the following points: formulation of a 40-hour
35
So-called Mitsubishi Jùshi-Case, Supreme Court Judgement December 12, 1973;
minshu 27–11–1536.
36
Law No. 4/5 of 1985; it actually has been a fundamental amendment to the
law on the Welfare of Working Women of 1972.
37
H. Oda, Japanese Law, p. 325.
working week as a clear standard; taking into account the situation

in small and medium sized enterprises the reduction in working hours
should occur gradually; responding to economic changes, “flexi-time”
working was introduced; and the minimum annual paid leave was
to be increased from six to ten days.
The bill “revising the LSL” was introduced in the Diet in March
1987, and the law took effect in April 1988. The new standard of
a 40-hour maximum week has been enforced by the Labour Ministry
since April 1991, the last enforcement occurring in June 1993, but
it is also widely recognized that parties of industrial relationship as
well as the government have to give assistance to small-scale indus-
tries, so that the standard will become reality in all Japanese indus-
tries. But also customs and practices in business activities have to be
reconsidered in order to achieve that goal.38
38
K. Sugeno, Japanese labor law, p. 212.
CHAPTER SEVEN
SOCIAL LAW
Wilhelm Röhl
‘Social law’ is a collective name of those regulations which—in the

words of art. 25 of the Constitution of 1947—concern the promo-
tion and extension of social welfare and security, as well as of pub-
lic health, as the responsibility of the State. Labour law which formerly
had been included in social law has become independent as far as
contract of employment, organization of work and industrial action
is concerned, but there still are many points of contact since social
security and insurance is meant mainly for working people.
The law of social security/insurance in many ways overlaps the
law of social welfare and public health. In this part of our book
stress will be put on social security with insurance, therefore it will
happen that matters which belong to welfare or health law will be
described also, but so to speak ‘by the way’.
I. A short historical reminiscence
(1) Although we shall observe that for a long time social security
was not considered the task of the State, there was from an early
period some relief for sick people on a very small scale. The famous
Prince Shòtoku (574–622) is said to have, on the occasion of the
construction of the Shitennò-temple at Naniwa (now Òsaka) in 593,
founded a hospital called Seyakuin = place for the charitable treat-
ment of sick poor patients.1 The hospital was then situated at Heiankyò
(now Kyòto); the staff consisted of administration officials and a physi-
cian. They also looked after abandoned children.
1
Kanesuke Fujiwara (877–933), Shòtoku taishi denryaku (Reports on Prince Shòtoku),
year of publication unknown. Not every detail is reliable. But it seems to be sure
that in the early Heian period (9th century) the hospital was operating.
a short historical reminiscence 571
By the end of the Heian period (1185) the establishment declined.

In the 13th century the monk Ninshò (1217–1303) set up a hospi-
tal for the poor (seyakuin as a technical term) within the Gokurakuin-
temple at Kamakura, and shortly before 1600 Hideyoshi Toyotomi,
actual ruler over Japan, again established a hospital for destitute peo-
ple at Kyòto and appointed the physician Zensò (or Sòzen) Tanba
manager of it.
The Tokugawa government (1603–1867) founded a hospital in
Edo (now Tokyo). The ‘Pictorial Description of Edo’s Noted Places
(Edo meisho zue) of 1836 described it as follows:2 “In this district (=
Koishikawa), namely in the park of Koishikawa (Kòrakuen), the
authorities set up a hospital in the Kyòhò period.3 The establish-
ment is called Yòjòsho,4 its purpose is to aid widowed, orphaned, poor
or vagrant patients. The hospital grants gratuitous treatment and dis-
penses medicine. Really, such a gracious charity will stand out over
a hundred generations.”
A more detailed description is given by Yoshikata Ikebe:5 At the
time of the 8th Shògun Yoshimune Tokugawa (being in office
1716–1736) there lived in the district of Koishikawa the district med-
ical practitioner6 Shòson Ogawa (1672–1760). This Ogawa applied
to the authorities for setting up a hospital for widowed, orphaned
and poor people like the seyakuin of former times. The Shògun, being
well disposed to charity, just then had the tradition investigated. He
got to see the application, thought it to be good and immediately
had the hospital instituted in the park of Koishikawa. Ogawa was
made its superintendent and two physicians were entrusted with
the medical treatment. The hospital was called Yòjòsho. The date of
the foundation was 4 December 1722 under the old calendar.7 The
administration of the hospital was supervised by the town magistrate
who exercised control through constables and attendants. This was
the only charitable hospital of the government (bakufu); it got to be
equipped step by step and endowed with divisions for internal, external
2
Vol. 13, chapter ‘Koishikawa’, heading ‘Ryòbyòin’ (hospital).
3
1716–1736.
4
Literally: place for health fostering.
5
Nihon hòseishi ( Japanese Legal History), 1912, p. 546 et seq.
6
Machi’i(sha): not a medical officer in the service of an authority but indepen-
dently practising for the common people of a certain district.
7
10 January 1723 of the western calendar.
572 social law
and ophthalmic diseases. After the end of the bakufu regime it was
renamed ‘Hospital for the Poor’ (Hinbyòin) and put under the con-
trol of the Chinshòfu8 but soon afterwards abolished. The site of the
hospital became part of the area of the botanical garden of Tòkyò
University.
(2) Not only sick people but also persons in need might receive
public support. In case of disaster, epidemic, famine and the like the
ancient emperors granted relief by distributing victuals and, chiefly,
tax exemption. The codes of the 8th century regulated tax exemp-
tion according to the amount of damage when flood, drought, pests
or frost had caused crop shortfall. There were rules concerning the
treatment of sick, widowed, forlorn, poor or old persons too who
were not able to sustain themselves.9 Always the kin came first in
supporting; if there were no relatives or they were poor the village
community was obliged, and the charity of the State was the last
resort. This principle remained in force until modern times. Charitable
deeds of the regents in the Kamakura period (1185–1333) have been
reported in documents of that time, and after long years of wars
between the feudal lords the heads of the Tokugawa clan supported
the cause of charity among the people, opened the rice granaries
for the persons in need and gave loans of money. The hospital for
poor patients has been mentioned above.
7.2 Social security⁄insurance law10
1. The Japanese way to the establishment of a modern legal system

of social security was a long one. As the government recoiled from
a commitment it relied on the old custom of mutual aid among the
people and help by the family.
8
An office of the new government for the administration of thirteen domains
which had come under the jurisdiction of the Court with the restoration. The office
existed for but a few months in 1868.
9
In detail: M. Toshimitsu, Ritsuryò oyobi ryòsei no kenkyù (Study of the Early Laws
and the Administrative and Civil Legal System), 1959, p. 241 et seq.
10
A comprehensive study of the development of the Japanese system is to be
found in Masaaki Ogawa, Shakai hoshòhò (Social Security Law), in Kòza Nihon kindaihò
hattatsushi (Lectures on the Development of Modern Japanese Law), vol. 1, 1958,
pp. 163–248. It is not referred to specifically hereafter for citation purposes, it has
been consulted throughout.
social security⁄insurance law 573
(i) The very old institution of mutual aid among the people was
based on a group of persons. The group consisted of men who had
got together and committed themselves to help each other in case
of emergency. In rural areas, for example the farmers lent workers
to each other if the neighbouring farmer could not plant or harvest
without assistance ( yui ). There were also clubs whose members
granted financial aid mutually (tanomoshikò, mujinkò ). Especially in the
Edo era, mutual aid was part of the responsibility of the five-family-
neighbourhood unit11 instituted by order of the government. The
collective term for these groups is ‘neighbourhood system’ (rinposeido),
and mutual aid was one of its fields of activity. In the Meiji era
‘neighbourhood’ meant not only a block of neighbouring houses but
extended over the whole commune.
(ii) From time immemorial mutual aid was a characteristic of the
family. In this respect, ‘family’ means all the persons whose name has
been entered in the family register—a much greater circle than the
modern family which usually consists of husband, wife and children.
Those formations were regarded as good morals and manners and
considered more important in social life than relief run by the state.
With reference to the old good morals the Meiji authorities for a
long time managed to avoid being officially committed to care for
people in need and prepare a legal system of social security.
However, also in the Edo era single cases of extreme poverty
occurred, especially after disasters like fire, earthquake, flood, and
crop failure, in which the authorities had to help—not out of respon-
sibility but for fear of disturbances. Forms of help were financial aid,
loan of money or rice, distribution of rice, free meals, emergency
accommodation.
The new Imperial government, for the moment, continued prac-
tising the policy of the former regime and on 6 April 1868, the day
of the proclamation of the ‘Charter Oath of Five Articles’,12 it erected
five notice boards.13 On the first board was written:
11
Goningumi. See George Sansom, A History of Japan, vol. III: 1615–1687, 1964,
p. 101.
12
An abstract outline of political principles. Text in Ryòsuke Ishii, Meiji bunkashi,
2, Hòseihen (Cultural History of the Meiji era, vol. 2: Legal System), 1954, p. 109,
translated by William J. Chambliss, Japanese Legislation in the Meiji Era, 1958,
p. 145.
13
Tatefuda: a board in the street on which orders of the government and new
laws were written and thereby made public.
574 social law
1. Everyone must strictly adhere to the moral rules governing the

five human relations.14
2. Have compassion for helpless persons and cripples.
3. Refrain from bad deeds such as manslaughter, arson, theft and
the like.15
The demand no. 2 was an exhortation to follow the traditional good
morals and manners, but there was no announcement that the gov-
ernment intended to prepare means of aid for the poor, and also
the Ministry for Population, founded in 1869, did nothing but solicit
readiness of the people to help each other. Prior to the nationwide
abolition of clans and establishment of prefectures (1871) the central
government took occasional relief action in favour of needy victims
of fights connected with the restoration and impoverished persons
who had not been entered in a family register. Moreover, there were
orders to the first prefectures16 to grant speedy relief to helpless per-
sons and cripples as well as assistance to those in need due to flood
or fire. Separate relief measures were in force in the clan territories;
they were abolished when the clans were dissolved on 29 August
1871. Under the tax burden and the lack of relief methods poverty
became more serious and the government tried to avert alarming
dissatisfaction, even hatred for the new authorities. In order to win
the goodwill of the people and strengthen the base of the regime
the government thought it necessary to set up a standard and rather
systematic relief policy.
On 8 December 1874 the government (dajòkan) decreed the ‘Relief
Regulations’ ( Jukkyù kisoku), which were the only national law about
general aid for the poor until 1929 when they were replaced by the
Relief Law (Kyùgohò ), the additional clause of which repealed the
Relief Regulations. So, the Regulations were valid for more than
half a century; they read:
Although relief for the poor should be brought by a way based on
mutual friendly sentiments of the people destitute and forlorn paupers
14
Father-son, master-servant, husband-wife, brothers (old-young), friends. Confucian.
15
Text in Nihon shiryò shùsei (Compilation of Japanese Historical Materials), ed.
Heibonsha, 1956, p. 492.
16
After the fall of the bakufu the territories under direct control of the Shògun
had been reorganized into 9 urban and 15 rural prefectures in 1868 besides which
273 areas remained clan territories until 1871.
that must not be left unnoticed at the moment will from now on for
fifty days at the most be taken care of by the nearest district accord-
ing to the following rules. Details are to be reported to the Ministry
of the Interior, orders will be dispatched.
Relief Regulations
(1) To the poorest persons that are forlorn and unfit for work because
of chronic disease will be apportioned rice at the rate of one koku eight
to (about 300 litres) per annum. Even if the person in question is not
uncared for the preceding rule will be applicable in case the other
members of his household are seventy years of age or older or fifteen
years or younger and themselves poverty stricken because of chronic
disease.
(2) Likewise: to the forlorn persons of seventy years of age and older
that are unfit for work because of severe illness or old age will be
apportioned rice at the rate of one koku eight to per annum. Even if
the person in question is not uncared for the preceeding rule will be
applicable in case the other members of his household are seventy
years of age or older or fifteen years or younger and themselves poverty
stricken because of severe illness or old age.
(3) Likewise: to the forlorn persons that are unfit for work because
of illness will be apportioned three gò (about 0.54 litres) of rice for
men or two gò (about 0.36 litres) of rice for women daily. <Clause 2
corresponds to the above clauses appropriately modified.>
(4) Likewise: to forlorn persons of thirteen years of age or younger
will be apportioned rice at the rate of seven to (about 126 litres) per
annum. <Clause 2 corresponds to the above clauses appropriately
modified.>
(5) The price of the relief rice shall follow the local market-price of
low-quality rice in the previous month.
The weak point of the Regulations was that it was the ministry which
had to decide about each single case, however insignificant it was.
The regional officials were not authorized to settle the matter and
since there was no standard concerning the decision-making of the
Ministry the regional officials sometimes must have been at a loss as
to how to handle applications adequately. The Ministry of the Interior
planned to prepare instructions for approval, but the Finance Ministry
opposed any competence of regional officials to spend public means.
The preamble of the Regulations made it clear that help by the
family or the neighbours, in short: fellow subjects, had to come first.
As principally only forlorn people, i.e. men, women or children with-
out family or neighbourly ties, would get relief and, moreover, they
needed be unfit for work, most of the poor did not receive any sup-
port from the state.
576 social law
Under a decree of the Ministry of the Interior of 3 July 1875 the

regional authorities had to scrutinize the situation of the applicant
and report on each of the requirements for being helped. The con-
ciseness of the Relief Regulations caused some difficulties of inter-
pretation. What office was the right place to handle matters of relief:
the office of the place of main registration (honsekichi ), of domicile
( jùshochi ), of residence (kyojùchi ), of the present abode ( genzaichi )?17
In doubtful cases the office of residence was held to be in charge.
Another question was: who were the “other members of the house-
hold” ( yo no kajin)? Usually, the word “household” in a law meant
the registered unit of persons belonging to a group for the purpose
of census. Such a group and a family were not necessarily identical.
The Relief Regulations meant the registered unit and the blood rela-
tions as well since according to the spirit of the preamble the rela-
tives, also those by marriage, were always obliged to help.
In all, the Relief Regulations were practised in a restrictive way
so that only the utterly destitute and helpless persons could get some
support, but there was no duty of the state nor a right of the peo-
ple with respect to relief. As a result, public expenditure for relief
was small. In 1881, for example, when in connection with the com-
pletion of the land-tax-reform and the deflationary policy of the
Minister of Finance, Masayoshi Matsukata, poverty increased among
farmers and common people, in the whole of Japan only 6981 peo-
ple were sustained and the expenditure of the state was not more
than 53,189 ¥,18 that is a little over 7½ ¥ per person on average.
2. Special measures were taken after, in July 1873, new regula-
tions concerning the land tax had been set into force. The details
of the land tax reform were:
17
The population was registered since the 7th/8th century in the whole of the
country. Objects of registration in the regional register were the basic units of the
village, the ‘houses’ (ko) with all their members and the economic circumstances.
That system, at times modified, has remained in force until now; the Family
Registration Law of today dates from 1947 and takes into account that the old
‘house’-system was abolished after World War II.
‘Domicile’ is the base and centre of life in the sense of art. 21 of the Civil Code.
‘Residence’ is the home which is not the base and centre of life. When a per-
son stayed at a place beyond the limits of the place of his main registration for
more than 90 days that place was supposed to be his residence.
18
M. Ogawa (note 10) at 120.
(1) The tax that hitherto had been assessed according to the yield
of the land was now to be assessed according to the value of
the land.
(2) Instead of collecting the tax in kind it was to be collected in
money.
(3) The tax rate was fixed at three per cent (in 1877 lowered to
two and a half per cent).
(4) Instead of the farmer the owner of the land19 was to be the tax
payer.
In principle, the tax rate, compared with the former one, had not
been diminished but the new mode of assessment—value of land
instead of yield—created distress when crop failure caused by nat-
ural phenomena left the peasant without means.
Unlike the relief granted to the poorest it was regarded as the
duty of the state to make provision for such emergency. In 1871
and 1875, the government issued Rules of Temporary Relief for
Poor People (Kyùmin ichiji kyùjo kisoku) which provided for small
amounts of money as aid. In 1877 the government decreed that no
one would be allowed to delay paying the tax unless all the villagers
were affected by the crop failure, and also in this case the damage
must amount to more than one half of the yield fixed at the time
of the land tax reform. If payment of the tax was delayed with per-
mission of the authorities, it was to be expected that by adding the
tax falling due next the burden on the land would increase contin-
ually with the result that the land would go down in value. There-
fore the Ministry of Finance, on recommendation of the adviser
Paul Mayet, proposed the Law for a Famine Relief Fund (Bikò
chochiku hò ) which was enacted in June 1880 and enforced from
1 January 1881.
Under this law persons in need who had become victims of extra-
ordinary crop failure or unforeseen mishaps were supplied with means
for food, emergency accommodation, farm implements and seeds.
Landowners who because of the mishap could not pay the land tax
got subvention or a loan—there was no tax exemption. Although
19
The new Meiji government rather early paved the way for a western system
of ownership. In former times private ownership of land was forbidden or extremely
restricted. The right to use a plot of land in connection with possession of it was
of greater importance than ownership. By 1872 land sales and transfers were lib-
eralized and peasants obtained land titles.
578 social law
relief was granted in the case of crop failure or extraordinary mishap

only, the law constituted an improvement compared with the Relief
Regulations: persons fit for work too could be supported. The fund
was fed partly by the state and partly by compulsory savings of the
landowners.
3. (a) The social situation grew worse and legislative attempts to rem-
edy this were undertaken when the rapid development of capitalism
and industrialization caused an overproduction. When, in 1881, the
Minister of Finance Masayoshi Matsukata carried out his deflation
program, the manufacturers’ prices went down with the result that
production and jobs were reduced. The farmers gained less money
for the crop but had to pay the land tax in full. Many people lost
their earning opportunity in the country and moved to the towns
where those in need had sought refuge since the time of feudalism.
Disturbances in the towns and the country were inevitable.
The Relief Regulations failed to be an instrument of help because
of the limited circle of persons to be sustained. When, in 1888, the
organization of the administration units ‘cities, towns and villages’ was
settled, those units were authorized to make statutes and regulations.
Thereby, local rules of meagre relief for the poor were created.
In consideration of the spreading disturbances among the poor
the government introduced the draft of a Law for Relief to the Poor
(Kyùmin kyùjo hò ) in the new parliament as early as in the first ses-
sion in 1890. The draft aimed at the appeasement of the people in
order to maintain social peace. It followed Prussian law and the orig-
inal rough sketch planned to prescribe the responsibility of the com-
mune to support the poor. The government, when making the Relief
Regulations in 1874, had refused to bind the communes and denied
a right of the poor. In contrast to the Regulations the draft of 1890
shifted the position of the sustaining authority, if relief had to be
granted at all, from the state to the commune with the intention of
sparing the means of the state and laying stress on the character of
the commune as a family, with the head of the community as the
father whose charge prevented rights consciousness from rising among
the lower-class people. Going further, it persisted in the smallest form
of social relief by deterring the poor from making applications under
pressure of the community.
A select committee of the parliament cut back the draft to the
level of the Relief Regulations, and the House of Representatives
rejected both the initial and amended drafts since it was not willing
to institute a public duty to grant relief and refused to load the com-
munes with an additional burden.
(b) In 1897, four members of the House of Representatives intro-
duced two Bills relating to a relief law ( Jukkyùhò ) and a poor rates
law (Kyùhinzeihò ). They argued: “In view of the hardening practice
of the capitalists to employ workers at only low wages we are con-
vinced that now a balancing out of poor and rich should be con-
templated and that the defence against future disaster may not become
the burden of the poor alone”. The idea was to realize the con-
ception of Shinpei Gotò who as the chief of the Public Health
Division of the Ministry of the Interior had in vain proposed the
establishment of poorhouses and a health insurance system.20 The
draft of a relief law took up Gotò’s view and recommended in prin-
ciple the duty of the commune of the needy person’s whereabouts
to help young and old, forlorn, invalid and sick individuals. The
means were to be collected from government subsidies, contributions
of benefactors and a general and equal tax of one Sen (penny) per
month and household. The poor rates law was intended to intro-
duce a municipal poor relief tax for the sole purpose of providing
money for the government’s subsidies.
The Bills were never put on the agenda of the diet.
(c) Another severe crisis arose in 1900/01. More than 20,000
female spinners lost their jobs. In May 1901 the founding of the first
Socialist Party of Japan (Shakaiminshutò )21 was announced to the author-
ities, which at once ordered its dissolution.22 The disturbances in the
villages continued and migration into the cities increased. In February
20
Gotò had in mind to found a relief organization for the soldiers disabled in
the Sino-Japanese War 1894/5. The means for that and the above mentioned plans
were to be raised from the reparations China had paid to Japan. Gotò submitted
a memorandum about it but was not successful. Then he suggested that the upper
social class should make contributions and pay a special tax, the state and the self-
governing bodies should give subsidies and the people should be burdened by a
general tax.
21
This Social Democratic Party, not to be confounded with the Shakaiminshùtò
(Social People’s Party) 1926–1931, had forerunners in the form of a ‘Society for
Studying Socialism’ (Shakaishugi kenkyùkai ) 1898 and a ‘Socialist Association’ (Shakaishugi
kyòkai ) 1900.
22
From February 1951 to July 1952 a political party existed under the same
name.
580 social law
1904 members of the Party of Friends of Constitutionalism (Rikken

seiyùkai ) introduced in Parliament a ‘Memorial Concerning the
Protection of the Poor-Relief, the Workers and the Leaseholders’,
and in March 1904 the bill of a poor law (Kyùhinhò ). It was stated
in the Memorial that in view of the 150–160,000 forlorn needy per-
sons the government were obliged to propose a Poor Law. The diet
agreed to the Memorial. The draft of a Poor Law said, by and large,
the same as the government’s draft of a Law for Relief to the Poor
of 1890 (see above). New institutions were to be full-time or hon-
orary welfare officials in the prefectures who would take care of the
poor and prevent poverty, and articles on support and supervision
of welfare services as well as prevention of poverty. The draft meant
to impede socialism.
The government opposed the principle of the duty to grant relief
and argued that such a rule would foster laziness, increase the num-
ber of the poor and lead to misuse of public means. Therefore, the
government gave poverty prevention priority treatment and brought
the discussion round to a reform of the savings bank system and the
encouragement of the poor to the virtue of strict thriftiness. The
draft of a poor law too was not passed by the diet. Until 1929 there
was no other proposal for a reform of the Relief Regulations.
However, the government was not totally indolent or inactive. It
denied any responsibility, it is true, but recommended a voluntary
relief by the communities as well as contributions out of prefectural
means and spontaneous charity of private citizens for those to whom
the Relief Regulations were not applicable. The government itself
set an example: on the occasion of the death of the Empress Dowager
Eishò23 in 1897 the government received a donation from the Em-
peror and gave it to the prefectures as the foundation for charita-
ble help.
(d) While a particular relief law did not come about prior to 1929,
some laws in the field of health and welfare legislation included
clauses about care for the poor. Such laws were the
– Law for the Prevention of Contagious Diseases (Densenbyò yobò hò )
of 1897, law no. 36. Abolished in 1924.
– Law for the Protection of the Natives of Hokkaidò (Hokkaidò kyù-
dojin hogo hò ) of 1899, law no. 27.
23
Widow of Emperor Kòmei, the father of Emperor Meiji.
– Law for Cash Assistance to the Disaster Stricken (Risai kyùjo kikin
hò ) of 1899, law no. 77. This law took the place of the Law for
a Famine Relief Fund.
– Law Concerning the Disposition of Travellers Falling Sick or Dead
While Travelling (Kòryo byònin oyobi kòryo shibònin toriatsukai hò ) of
1899, law no. 93.
– Law for the Care and Custody of the Mentally Ill (Seishinbyòsha
kango hò ) of 1906, law no. 38.
– Law for the Prevention of Leprosy (Rai yobò hò ) of 1907, law
no. 11.
The Law for Cash Assistance to the Disaster Stricken, for instance,
did not include any specific article on poor relief, but even such a
law, because of the lack of a general poor relief law, was regarded
as a substitute for relief rules. Insofar as relief regulations were
included in the said laws the application of those regulations was
restrained by the cost-cutting policy and the priority of relief by the
family.
(e) There was a group of people which experienced special con-
sideration by the government. When the Russo-Japanese war had
broken out an Imperial Edict on Relief for the Families of Non-
Commissioned Officers and Common Soldiers (Kashi heisotsu kazoku
kyùjo rei ) was issued on 2 April 1904. It decreed that the families of
non-coms and soldiers who fought in the war were to be supported
if they were unable to carry the cost of living because of the absence
of the breadwinner. In these cases, too, the prevailing principle of
the priority of familiar and neighbourly relief was in force. Although
the edict clearly declared the public responsibility for relief the dis-
trict authorities had to enquire whether there were persons obliged
to pay maintenance. Besides, the authorities were afraid that public
responsibility would be considered valid generally in favour of the
poor, and therefore indicated that such an extension was out of
the question.
(f ) When in connection with the crises and disturbances at the
beginning of the 20th century socialist ideas began to gain ground
the government, apart from suppressing any movement of that kind,
tried to block an opposition determined by class spirit with the help
of social policy. On the one hand it reduced public expenditure on
poor relief to a very low level in order to subjugate the poor classes
and strengthen the power system. Moreover, it shifted the commitment
582 social law
of the state, if any, to the ‘neighbourhood’, regional arrangements,

and civil charity. In May 1908 the Ministry of the Interior decreed
that first the communes, or in case they had no money the prefec-
tures, were obliged, and only in an irrefutable predicament might
the state help out. As a result the number of persons who got relief
from the treasury under the Relief Regulations, and the expenditure,
were remarkably diminished. At the beginning of 1908 there were
more than 13,000 persons on relief, at the end of 1909 the num-
ber was 3,753. The expenditure went down from 217,000 ¥ in 1907
to 63,000 ¥ in 1909.24 As public responsibility for relief was still not
acknowledged relief was regarded as an act of kindness of the state,
and the denial of a right to relief was in accordance with the ide-
ology of a ‘family nation’25 which compared the nation with an
extended family and its ties of parent and child. Acts of kindness
would, in the opinion of the reigning circles, be a means to strengthen
control over the family nation. Since the government was not will-
ing to spend much money for such acts, but on the other hand, was
determined to do the destitute people a favour, it contributed to
charitable events such as the first ‘course for reformatory work’ orga-
nized by the Ministry of the Interior in September 1908, as well as
the foundation of the ‘Central Charity Association’ in October 1908
and of the ‘Private Charity Society’ in February 1909. Influential
persons partook in charitable work, for instance the industrialist and
banker Eiichi Shibusawa, the statesman Keigo Kiyoura, and the
economist and member of the House of Peers Kumazò Kuwata.
Without recognition of a public duty of relief the Imperial Endow-
ment Welfare Organization was founded in 1911 after the promul-
gation of an Imperial rescript (chokugo) on gratuitous medicine and
medical treatment on 11 February 1911. The rescript was highly
praised by Kumazò Kuwata who pleaded for social performances
as prevention of leftist ideas and activities.
24
M. Ogawa (note 10) at 205.
25
Kazoku kokka, in detail: Takeshi Ishida, Meiji seiji shisòshi kenkyù (History of
Political Thought in the Meiji Era), 1959, 6–216. The base of the ideology was the
Imperial Rescript on Education of 30 October 1890, the text of which is recorded
in R. Tsunoda/W.T. de Bary/D. Keene, Sources of Japanese Tradition, 1959,
p. 646.
(g) In 1912 Nichinan Fukumoto of the Constitutional Nationalist

Party (Rikken kokumintò), a journalist and Member of Parliament, intro-
duced a bill concerning provision for old age (Yòròhò an) in the 28th
session. He proposed that old people of at least 70 years of age who
had neither property nor income and were not looked after should
be granted a pension of 10 Sen (penny) a day. The bill was not
approved lest the state should be responsible for the provision. Care
of destitute old men and women was left to their relatives and to
charity.
4. Since there was not and had never been a strict legal obliga-
tion of the state to support persons in need, and no one in need
could be sure to get relief, there grew the tendency to found mutual
aid organizations of workers who had dangerous jobs. Already prior
to the Meiji restoration miners’ guilds (tomoko kumiai )26 appeared. The
member of the guild agreed on the system of patriarchal relation-
ship27 and had a ‘father’ (superior). He contributed to a fund out of
which members who were severely ill or disabled, and therefore des-
titute, were supported. The miners’ guilds existed up to about the
1920s.
On 20 July 1873 the government enacted the Japanese Mining
Law (Nihon kòhò ), the first modern law concerning mining rights.28 It
did not contain any provision for relief in case of accidents at work.
But the Mining Industry Statute (Kògyò jòrei ) of 1890, which differ-
entiated between ownership of the minerals and ownership of the
land, placed the head of the mining enterprise under the obligation
to support the miner in case of an accident at work if the miner
was not responsible for it. On 8 March 1905 the Mining Industry
Law (Kògyòhò ) was passed by parliament. Under this law which, from
time to time reformed, remained in force until 1951, the enterprise
would be free of the obligation only if the miner had acted with
gross negligence. Moreover, the law decided that illness was also an
26
Tomoko = miner who had gone through a regular training, come of age and
got a diploma as a qualified miner.
27
Father (oyabun)—son (kobun) connection which has been transferred from fam-
ily relationship to other social groups.
28
The law took up the significant statement of the ‘Directions for the Mining
Industry’ (Kògyò kokoroe) of 1872 and declared all minerals owned by the govern-
ment. Private persons would get permission to mine as contractors only and were
limited to fifteen years.
584 social law
accident for which support had to be given by the employer. The

scope of the obligation to support was extended to the surviving
dependents of the victim.
Similarly, the factory workers of the production industry in state-
owned enterprises were favoured: under regulations of 1875 and
1879 state labourers, workmen, engineers and their families respec-
tively were supported in case of injury or death at work by contri-
butions to the cost of medical treatment, living, and funerals. There
were no general rules in favour of other factory workers. A few great
spinning mills and factories for military equipment had in-house
working directions including rules of relief, but they did not guar-
antee security since they were left to the discretion of the employer
and did not constitute any right of the worker.
Two Imperial edicts made some progress with social security in
public institutions:
– Relief for workers of artillery arsenals in Tokyo and Osaka,
edict of 18 July 1902. Workers who left because of expiration of the
period of service or disability due to injury or illness at work received
a pension for life. Workers of many years’ standing (or their sur-
viving dependents) who left because of death, business arrangements,
injury or illness at work which had not led to disability received a
temporary pension during a transitional period.
– That edict was repealed after the Russo-Japanese war. A new
Imperial edict of 9 May 1907 concerning relief for the workers of
all public enterprises took its place. The new edict, a general order
about relief in case of accident at work, provided for five types of
relief: medical treatment, living, crippling and chronic disease, wel-
fare service for surviving dependents, funeral. Relief was not granted
if the need was the result of the worker’s gross negligence being the
cause of the casualty.
Factory workers of private enterprises got help under art. 15 of
the Factory Law (Kòjòhò ) of 29 March 1911, the wording of which
ran as follows:
In case of injury, illness or death of the worker caused at work
the industrialist shall, as decreed by Imperial edict, provide relief for
the person himself or his family or, in case of death, his surviving
family.
The Factory Law came into force no sooner than on 1 September
1916 and was implemented by the Imperial edict no. 193 of 3 August
1916 which defined the relief in detail. It pursued the former char-
acteristics of relief and therefore did not offer complete security.
These conditions and the delay of the Factory Law led to the
growing importance of mutual benefit associations (kyòsai kumiai ), which
had existed since 1887. They were relief organizations of the employ-
ees, beginning with a few branches of industry—first in the spinning
mills. The associations were sponsored by the employers. A good
example was the Kanebò Mutual Benefit Association (Kanebò kyòsai
kumiai ), founded on 8 May 1905, prompted by Sanji Mutò, the pres-
ident of Kanebò29 who had seen such a welfare institution in the
German Krupp steelworks. Every employee of Kanebò contributed
3 per cent of his monthly wages into a fund and the firm doubled
the amount of the payment. Sick or injured employees—in case of
death their family—old members and employees of many years’
standing were supported out of the fund. The association was a fore-
runner of a workers’ insurance system.
Relief funds modelled on the mutual benefit associations were set
up also in state-owned enterprises, first with the national railway in
April 1907. Other state-owned establishments followed on, e.g. the
outdoor staff associations of
the Monopoly Bureau, 1908,
the Printing Bureau, 1909,
the Taiwan Railways, 1909,
the Communication Office, 1909,
the shipyards and arsenals of the navy, 1912.
All these mutual benefit associations, fourteen in all,30 were founded
by Imperial edict (chokurei ) without parliament’s involvement. The
associations did not have the character of legal persons, their con-
siderable funds were administered by the bureaucracy, and the mem-
bers were not entitled to a say in their management.
More and more private firms, encouraged by those associations,
developed relief organizations which worked according to the same
principles. With regard to the employees there was a weak point:
since the firm contributed to the fund equally and managed the relief
29
Kanebò is an abbreviation of Kane-ga-fuchi bòseki gaisha (Kane-ga-fuchi Spinning
Company; Kane-ga-fuchi is a quarter in Tokyo).
30
Kinjirò Shimizu, Shakai hoken hò (Social Insurance Law), in Jurisuto ( Jurist) no.
100, p. 101.
586 social law
business the organization could not become autonomous and inde-

pendent. Proposals to create an insurance system modelled after the
German pattern were made from about 1880, but until World War
I there was no result.
5. In the course of the Taishò era (1912–1926) the Japanese began
to question the new legal system which, had been strongly influenced
by foreign thoughts and reached its final form by the end of the
Meiji era. In the field of social security, however, legislation on the
whole had been resistant to European, especially German, guidance
and faithful to the tenet that to care for the old, poor and destitute
people should be incumbent first upon the family or the neighbours.
World War I, on the one hand gave rise to a sudden economic
boom and, on the other hand, increased the distress of the masses
because of rising prices and low real wages. In this situation the state
was called upon to take firm action in relief work.31 The appeal had
an immediate effect on two Bills.
(1) When in August 1914 Japan sent troops to Tsingtau as a con-
sequence of the declaration of war against Germany the president
of Kanebò, Sanji Mutò, openly asked for several laws in favour of
the soldiers, among them a law concerning the relief to injured sol-
diers, to the dependents of soldiers killed in action, and to the fam-
ilies of front-line soldiers. A movement demanding the realization of
the suggestion arose and finally the government introduced a Bill
relating to relief for soldiers (Gunji kyùgo hò ) in the 39th session of
the diet in 1917. From a jurist’s point of view the law, promulgated
on 20 July 1917, stated clearly that the state was responsible for the
care of injured soldiers and their families, for the families of non-
commissioned officers and the ranks, and, for the surviving depen-
dents of soldiers killed in action, if they were unable to finance their
living. But the government’s understanding was that the (very low)32
allowances under the law would be an effect of the canon of char-
ity in the family state. The law did not say anything about priority
31
The famous legal scholar Nobushige Hozumi in his ‘Treatise on Retirement’
(1915) argued that the old people clearly were members of society and had the
right to claim the means for their living from society.
32
The maximum amount in kind or money should be 15 Sen per person or 60
Sen per family daily. M. Ogawa (note 10), p. 223.
of relief by the family, and the applicant was even permitted to make
a complaint to the Minister of the Interior, but the authorities used
to prevent him from complaining in order to avoid letting the relief
be regarded as a ‘right’.
(2) Under the Law Concerning the Disposition of Travellers Falling
Sick or Dead While Travelling, law no. 93 of 1899 (see above), the
prefectures had to bear the costs of relief if the commune or the
person obliged to pay maintenance were without means. Since pre-
fectures with big cities where the roving people flocked together were
overburdened and the distribution of burdens became unjust, the
treatment of the needy grew to be negligent.
In parliament, the ‘Party of Friends of Constitutional Polities’
(Rikken seiyùkai) and the ‘Party of the Constitutionally Like-Minded’
(Rikken dòshikai ) made motions in 1915 and 1916 concerning the pay-
ment of the costs of poor relief from the treasury. The motions as
well as an amendment to limit the payment from the treasury to
roving people of unknown family register and residence were approved.
The resolutions of the diet which were intended to prevent danger-
ous ideas like socialism were not translated into action because the
Ministry of Finance objected for lack of money. Anyhow, the occur-
rence indicated the tendency of political circles to engage the state
in welfare activities better.
(3) The Factory Law which had come into force on 1 September
1916, and the statutory instrument (Kòjòhò shikkò rei ), Imperial edict
no. 193 of 3 August 1916, as well as the Mining Industry Law of
1905, had ruled that the surviving family of the worker who had
died due to an accident at work should get relief. The wife of an
unregistered marriage was not a member of the family. When the
Supreme Court had decided that the common-law husband was
obliged to maintain the common-law wife the Factory Law and other
laws were amended so that the relevant regulation read: “. . . sur-
viving family and the person who at the time of the death of the
worker was supported by the deceased”. Under the new clause (law
no. 33 of 1923) the common-law wife was eligible for relief. On the
occasion of this reform the original clause that the employer was
released from his obligation to grant relief if the accident was due
to the worker’s gross negligence was abolished, with the result that
a fault of the worker did not make any difference. But in 1925 an
amendment (Imperial edict no. 153) to the statutory instrument
inserted art. 7–2 under which the employer, with permission of the
588 social law
chief of the prefecture, could free himself from payment for the loss
of wages and accident compensation if the injury or illness was due
to gross negligence of the worker. Apart from that a great number
of workers and their survivors were without protection since the
Factory Law was not applicable to enterprises with fifteen workers
or less, or to building, transport, or traffic workers and heavy labour-
ers. Moreover, for lack of sufficient control it was doubtful to what
degree the law was realized in other industries.
(4) The desperate situation of the workers, farmers and employ-
ees during and after World War I produced a change in the death
and sick rates for the worse.33 Aside from measures to promote pub-
lic health it became necessary to safeguard the people against the
results of illness. So, the idea dawned on the authorities that the
time had come to create a social insurance system.
The first attempts were limited to a relatively small area and, in
general, covered accidents at work only. Actuarial calculations were
applied, for the first time, to the annuities from the National Railway
Mutual Benefit Association in 1918. Medical treatment of the poor
at the expense of the treasury was granted in the case of tubercu-
losis, mental illness, or trachoma: Law for the Prevention of Tuber-
culosis (Kekkaku yobò hò ), Law for Mental Homes (Seishinbyòin hò ), Law
for the Prevention of Trachoma (Torahòmu yobò hò ), all of 27 March
1919. But the establishments and the financial means under these
laws were insufficient and the principle of relief by the family cast
a shadow over their implementation. When the dissatisfaction of the
masses grew deeper and the turbulence increased, industrial action
expanded and the rice riot occurred in August 1918. The original
workers’ movement became a mass movement, a sign of which was
the May demonstrations from 1920 on.
The Constitutional Party (Kenseikai )34 had set up a committee for
the investigation of political affairs. This committee was the first insti-
33
M. Ogawa (note 10) p. 224. The death rate went up from 21.4 per thousand
in 1917 to 26.9 in 1918; the birth rate decreased slightly; the rate of death due to
tuberculosis went up from 21.2 per ten thousand in 1914 to 25.3 in 1918. The
number of mentally ill persons increased rapidly: 44,425 in 1916, 64,934 in 1917,
and the number of persons afflicted with trachoma is said to have reached 10
million.
34
The word ‘constitutional’ (kensei or rikken) was part of the denomination of sev-
eral political parties. Some of them called themselves ‘society’ (kai ) which in the
political sphere means the same as tò (party). The Kenseikai was founded in October
tution which, immediately after the rice riots in September 1918,

made a workers’ insurance the subject of study. The result was the
draft of a ‘Health Insurance Law’ (Shippei hoken hò an) made by Tasuku
Egi and Naoharu Kataoka.35 The Constitutional Party introduced
the Bill in the 43rd session of the diet in July 1920, but as the ses-
sion was a short one the Bill was not dealt with. The reasons for
the Bill were that the existing relief business (‘Welfare Organization’
<see above>, Factory Law, mutual benefit associations of the firms
or trade unions) did not include the whole workforce, and therefore
a public health insurance system was needed which would contribute
to the repression of radical views.
The Bill was introduced again in the 44th session together with
amendments of the Factory Law and the Mining Law as well as a
draft of a Trade Union Law. The first reading was put on the agenda
so late that the debate was not finished when the session closed.
In March 1922 the Constitutional Party, now jointly with the
Constitutional Nationalist Party (Rikken kokumin tò ),36 introduced the
Bill for the third time and, in addition, a Bill relating to a National
Insurance Law for unemployment benefits. The government too had
become aware of the requirement for social insurance, which was
evident in the wake of the implementation of the Factory Law. Driven
by the introduction of the Constitutional Party’s Bill in 1920 the
Ministry of Agriculture and Commerce saw to it that a health insur-
ance system was scrutinized and planned. When the Constitutional
Party introduced their Bill for the third time the government in a
rush presented the draft of a health insurance law. The members of
Parliament gave priority to this draft and it passed both houses
1916 by Kataaki Katò as an amalgamation of three right-wing parties. At the elec-

tions of 1917 and 1920 the Kenseikai was the second biggest party and in 1924 the
biggest. Katò was prime minister of two cabinets from 6 June 1924 to 30 January
1926. His second cabinet was a one-party cabinet of the Kenseikai. In June 1927
this party and others were absorbed into the Constitutional Democratic Party (Rikken
minsei tò ).
35
Both were members of the Kenseikai and of Parliament. Egi had been chief
secretary of two cabinets and later on became Minister of Justice and of Railway.
Kataoka, at that time, was president of the Japanese Life Insurance Company
(Nihon seimei hoken kaisha) which he had founded in 1889 together with Suketarò
Hirose. At a later time he became Minister of Commerce and Industry and of
Finance.
36
Founded in March 1910, dissolved and revived by Tsuyoshi Inukai’s Reform
Club (Kakushin kurabu) in September 1922.
590 social law
rapidly, as the attention of the members was absorbed by the com-

motion about the bill concerning the control of radical social move-
ments which was being debated at that time.
The main points of the Health Insurance Law (Kenkò hoken hò ),
law no. 70 of 1922 which came into force in July 1926 were:
(1) The event of damage was illness of the insured—whether caused
at work or not—injury, death, childbirth.
(2) Compulsorily insured persons were the workers in works to
which the Factory Law and the Mining Law were applicable, as well
as employees with a maximum annual salary of 200 ¥. Workers in
power stations, building contractors and communication and trans-
portation undertakings might become optionally insured.
(3) Business managers with at least 300 insured employees were
permitted to found a health insurance association (kenkò hoken kumiai ),
business managers with at least 500 insured employees might be
ordered to do so by the responsible ministry. Insured persons who
were not a member of an association were looked after by the gov-
ernment, and so there existed two types of enterprises: bigger ones in
which the associations were in charge of the insurance, and middle
and small enterprises controlled by the bureaucracy. As a result the
previous mutual benefit associations of the large civilian firms were
dissolved or had to change their role.
(4) The insurance contributions were fixed by the insurer; the
amount followed the amount of the wages. Employer and employee
each paid half of the contribution. The contribution of the worker/
employee principally should not exceed 3 per cent of his wages. In
many cases the insured felt that his contribution was more than
3 per cent since his wages were paid partly in kind.
(5) The insurance covered the costs of medical treatment (in case
of an operation not more than 20 ¥ ), cure, funeral, childbirth. The
family was not included in the insurance.
The faults the trade unions found with the law were the burden
of contribution by the workers, the influence of the administration
(there was an insurance bureau in each prefecture controlled by the
police office) and particularly the fact that the law regulated not only
the event out of work but included the event at work, which under
the Factory Law had been chargeable to the employer alone.
6. A series of difficult situations in the twenties led to the insight
that a general relief system could no longer be delayed. The critical
events were
– 1920: the wartime boom collapsed, the economy was out of order,
social problems became extremely serious.
– 1922: financial difficulties of the banks because of relief actions
for the economy.
– 1923: earthquake in the Kantò area with severe economic after-
math.
– 1927: another bank crisis and period of slump.
– 1929: world economic crisis.
Social workers hoped for a reform of the Relief Regulations and no
longer regarded neighbourly relief as being in keeping with the times.
The government too, under the pressure of tense social conditions
since the rice riots of 1918, set about preparing legislative measures
and established committees one after the other for the study of relief
work. The third committee in 1927 decided on a ‘System of General
Relief ’ and laid down essential points about care for the poor. The
government made a draft on that basis, including reference to west-
ern legislation, and introduced the Bill in 1929. It passed both houses
of parliament and was promulgated as ‘Relief Law’ (Kyùgohò ) on
2 April 1929.
Art. 1 of the law read:
The persons hereinafter listed will, if because of poverty they are unable
to defray the costs of their living, be supported according to the pro-
visions of this law:
1. Old and infirm persons aged 65 and over.
2. Youths aged 13 and under.
3. Pregnant women and nursing mothers.
4. Crippled, sick, injured and other persons who because of mental
or physical damage are unable to work.
Clearly, relief was now a public obligation; generally the state
had to bear up to half of the costs, the prefectures and the com-
munes at least one quarter each. Public money was to be spent
on living, medical treatment, childbirth, taking up occupation,
funeral. Many details were left to an Imperial edict (chokurei ). Compared
with the Relief Regulations the law aimed at improvement of wel-
fare conditions, but the old customs and traditions, namely familial
and neighbourly help, were still alive in the people’s mind. In order
to ward off a rights consciousness of the people the law was inter-
preted as not saying that the relief was based on a right of the poor
but only on the responsibility of the subordinate authorities to the
592 social law
State.37 With regard to the poor the relief was a mere ‘benefit as a
legal reflex’.
The implementation of the Relief Law was incumbent on the may-
ors of the communes who were assisted by social welfare commis-
sioners (hòmen i’in), arts. 3 and 4.38
Since the government found it difficult to raise the costs of imple-
mentation of the law (estimated at 4 million ¥) the law came into
force no sooner than on 1 January 1932. It caused the relief activ-
ities to expand considerably: in 1931, under the old Relief Regulations,
30,534 persons on relief were supported and the costs amounted to
a total of about 620,000 ¥; in 1932, under the Relief Law, there
were 163,416 persons on relief and the costs amounted to a total of
3,646,260 ¥.
7. Prior to 1945 other legislative steps were taken.
(1) On 29 October 1919 the First International Labour Conference
opened in Washington, from which appeals were sent out to solve
the problems of mass unemployment. In Japan, the labour move-
ment demanded measures and an insurance against unemployment.
But the maxim ‘return to the country’ was prevailing and the gov-
ernment did hardly anything to yield to the international and domes-
tic pressure. With great difficulty two laws were passed by the diet:
Employment Exchange Law (Shokugyò shòkai hò ) in 1921 and Seamen’s
Employment Exchange Law (Sen’in shokugyò shòkai hò ) in April 1922,
under which employment agencies were established.
The Constitutional Party (Kenseikai ) introduced two bills relating
to an unemployment insurance in the 45th and 46th session 1922/23,
37
Ken’ichirò Nishimura; Recht der sozialen Sicherheit (Social Security Law), in
P. Eubel and others, Das japanische Rechtssystem (The Japanese Legal System),
1979, p. 376.
38
The institution of social welfare commissioners had developed on the initia-
tive of the prefect of Osaka when the rice riots had broken out in 1917/18 and
later on had spread all over Japan. The prefect or mayor appointed five to ten
skilled and experienced benefactors honorary commissioners. Mainly in poor quar-
ters they investigated the circumstances, distributed money and articles, gave advice
to welfare institutions and initiated discussions about lifestyle. For example, in 1930
there were more than 30,000 social welfare commissioners who took action in over
1,120,000 instances.—After World War II the commissioners were renamed minsei
i’in, verbatim ‘people’s life commissioners’, first by an imperial ordinance in 1946
and two years later by the Law for People’s Life Commissioners (Minsei i’in hò ) of
29 July 1948. For hòmen i’in see Nihon kindai jiten (Dictionary of Japanese Modern
History), published by Tòyò keizai shinpòsha, 1959, p. 557.
but both sessions closed before the debate on the bills had come to
an end.
When the industrial actions intensified some big cities took up
unemployment relief for day labourers. Besides, relief organizations
sowed the seeds of unemployment insurance:
– the workers’ relief organization of Osaka began to support unem-
ployed persons in September 1925, likewise
– the workers’ insurance association of Kòbe in January 1926,
– the workers’ relief organizations of Tokyo in February 1930 and
of Nagoya in May 1931.
Between the bank crisis of 1927 and the world economic crisis of
1929 the unemployment problem worsened and the situation of the
agriculture became disastrous so that the maxim ‘return to the coun-
try’ as a solution of the problem could no longer be maintained. In
the campaign before the election of the prefectural councils in
September 1927 the trade unions agreeing with the Japanese Labour-
Farmer Party (Nihon rònò tò ) began a crusade for five laws:
i. an unemployment benefit law (shitsugyò teate hò ),
ii. a minimum wage law (saitei chingin hò ),
iii. an eight-hour labour law (hachijikan ròdò hò ),
iv. a reform of the Health Insurance Law of 1922 (Kenkò hoken hò )
v. a law for the protection of female and juvenile workers ( fujin
seishònen ròdòsha hogo hò ).
The main points were that the minimum wage should be 2 ¥ 50
Sen a day, that the unemployment benefit as well as the health insur-
ance benefit should be in proportion to the wage and that all this
should apply to everyone without discrimination based on prejudice
as to sex, age or ethnic origin.
At that time the government pushed forward the oppression of
the workers’ movement and tightened the Law for Maintenance of
Public Peace (Chian iji hò ). With regard to relief activities it initiated
the Relief Law, and the Ministries of the Interior and of Finance
sent a circular “Re: Regulation of the business of unemployment
prevention and of relief ” dated 3 October 1929 to the chiefs of the
regional authorities. The instructions were not progressive and the
result was that most of the unemployed people did not have any
choice but to return to the country where they would be left to
neighbourly and familial charity. Nothing more came of the call for
594 social law
the five laws. In May 1930 Yojirò Matsutani, member of parlia-

ment, introduced a bill relating to an unemployment benefit, but the
relevant committee of the diet did not finish the examination of the
matter.
Prior to 1947 there was no unemployment insurance law.
(2) Some groups of workers were not sufficiently protected from
the results of an accident at work, e.g. outdoor labourers of build-
ing enterprises. But they too were increasingly affected by accidents
since the working conditions were bad. Therefore two bills were
passed and became law in April 1931: the Workmen’s Accident Relief
Law (Ròdòsha saigai fujo hò ) and the Law for Insurance Against
Responsibility for Workmen’s Accident Relief (Ròdòsha saigai fujo sekinin
hoken hò ). The first one laid down that workers who were excluded
from the Factory Law, Mining Industry Law and Health Insurance
Law were, in case of injury, illness or death at work, to be treated
like the legally protected workmen. Under the second law a state
insurance against the responsibility of the employers was established.
Workmen in commercial business and agriculture were left un-
protected.
(3) Nationalist circles were of the opinion that the crises in the
twenties, and the obvious inability of the government to ward them
off, were due to the party political system which had no base in the
Constitution. Up to the last years of the 19th century the Emperor
chose and appointed the cabinet ministers according to the influence
of the clans of old and with no consideration for a representative
body of the people. When, under the Constitution of 1889, the par-
liament had been established, the political parties gained influence
and the parliamentary system (= the government depends on the
confidence of the parliament) gained ground. The first party cabi-
net was set up by the Constitutional Party (then: Kenseitò ) under
Shigenobu Òkuma in 1898. From that time party cabinets and clan-
influenced non-party cabinets took on government in turns, and from
1924 to 1931 only party cabinets came into power. It was the period
in which the militarists pressed for the civil administration to be
relieved. The last prime minister of a party cabinet was Tsuyoshi
Inukai39 from 13 December 1931 on. After he had been assassinated
39
Also read: (first name) Tsuyoki, Ki, Takeshi; (surname) Inugai.
by young military officers on 15 May 1932 the thirteen prime min-

isters following until the end of World War II were high officers of
the army or navy or civilians of militaristic attitude.
The political development was accompanied by firm endeavours
to intensify production. Labour had to be increased and heavier bur-
den on the industrialists in the form of more contributions to social
measures was to be prevented. The result was that work became
harder and harder and the physical power of the workers dimin-
ished. It became obvious that this would turn into a problem for
national defence. Since a general course of social action was lack-
ing, social work was absolutely necessary. An Imperial decree of
November 1936 regulated the function of the social welfare com-
missioners:40 “The social welfare commissioner shall attend to the
guidance of protective measures in the spirit of mutual help accord-
ing to the good custom of neighbourly assistance”, and by an amend-
ment of the Relief Law it was made clear that the social welfare
commissioners were a subsidiary organ to the welfare offices.
Besides, the Mother and Child Protection Law (Boshi hogo hò ) of
30 March 1937, as well as the Medical Care Guarantee Law (Iryò
hogo hò ) of 6 March 1941, were intended to give help to the needy.
The same spirit determined some laws concerning relief to persons
drafted into military service or civil emergency service and their fam-
ilies respectively.41 Implementing these laws the authorities feared
that a rights consciousness for relief would develop among the peo-
ple. Therefore they adamantly emphasized the ‘favour of relief ’
although the said laws took the view that relief was a public duty,
and the bureaucracy expected that the social welfare commissioners
would inform the people of the nature of relief as an act of mercy.
Other laws for help and support of the poor were interpreted in the
same sense.
The Health Insurance Law of 1922 favoured certain groups of
the working population, mainly those in industrial areas. On 1 April
1938 the National Health Insurance Law (Kokumin kenkò hoken hò ) was
promulgated. Its purpose was to extend the health insurance to all
40
Supra note 38.
41
Soldiers’ Relief Law (Gunji kyùgo hò ) of 1917, afterwards amended and renamed
Soldiers’ Aid Law (Gunji fujo hò ); Personal Service Drafting Ordinance (Kokumin chòyò
rei) of 1939, amended in 1941; Medical Personnel Drafting Ordinance (Iryò kankeisha
chòyò rei ) of 1941; Wartime Accident Relief Law (Senji saigai hogo hò ) of 1942.
596 social law
Japanese nationals and, in the spirit of mutual aid, to grant benefit

in case of illness, injury, childbirth and death (art. 1). The insurers
were national health insurance associations or nonprofiting organi-
zations which aimed at practising national health insurance business
(artificial persons). The government grant was meagre and business
expanded but slowly; anyhow, the law meant an improvement of
the social situation in rural districts and one step towards social
security.
The Seamen’s Insurance Law (Sen’in hoken hò ) and the Employees’
Health Insurance Law (Shokuin kenkò hoken hò ) of 1939 were specific
types of the Health Insurance Law for particular occupations. At the
same time relief funds for white collar workers, government employ-
ees and in 1941 for teachers were founded.
Apart from the National Railway Mutual Benefit Association which
paid an allowance for a while the first law establishing a pension
plan was the Workers’ Pension Insurance Law (Ròdòsha nenkin hoken
hò ) of March 1941. The law served to free the workers from feeling
anxiety about their old age or a chronic disease in case of an accident.
Especially in times of war the worker should concentrate on his work
free of worries. On the other hand the law imposed compulsory
saving upon the workmen and therefore was criticized. In February
1944 the law was amended and became applicable to businesses with
at least five (formerly ten) permanent male or female workers or
employees; the law was renamed Welfare Pension Insurance Law
(Kòsei nenkin hoken hò ).42 Under this law the insurer was the government,
the insured were, in short, the employed. There were three groups
of them: the compulsorily insured,43 the optionally insured44 and the
subsequently insured persons.45 With the exception of the subsequent
insurance, the premium of which the insured had to pay alone, the
employer and the employee paid half of the premium each. The
events causing the insurer to pay compensation were old age, illness,
death, retirement, and there were the following kinds of benefit:
42
Sometimes this name is used in the literature for the previous law of 1941.
43
Employed in business with at least five workers, except people working with
the public administration, seamen and some others.
44
Employed in business with less than five workers.
45
Persons who temporarily had lost the qualification to be insured (mainly because
of unemployment) could, against payment of the premium, maintain the insurance
in order that previous premiums were not paid in vain.
(i) Old-age pension ( yòrò nenkin), arts. 31–35 of the law. He who
had been insured for at least twenty years (miners fifteen years)
received from the age of 55 (miners: 50) a pension for life. The
amount was calculated from a percentage of the average regular
wages during the period of insurance, and extra payments for a
longer insurance period or a long time of employment with the
same firm. The upper limit was 50 per cent of the average regular
wages.
(ii) Disablement pension (haishitsu nenkin, later called shògai nenkin),
arts. 36–43. If the insured became ill—unfit for work—and could
not recover he received a disablement pension, the amount of which
depended on the degree of disability and the period of insurance
until the event. Extra payments were granted for the wife and chil-
dren. In case of a lesser degree of disability the insured got pecu-
niary aid (haishitsu teatekin).
(iii) Survivor’s pension (izoku nenkin), arts. 44–47. This benefit was
limited to ten years after at least 20 years of insurance. The amount
was 50 per cent of the old-age or the disablement benefit respec-
tively which the deceased had received or (in case of old-age pen-
sion) would have received after having been insured for at least 20
years. The circle of survivors entitled to receive the pension and
their order were to be regulated by Imperial ordinance. If the per-
son entitled had died and there was no regular successor the other
survivors received a lump sum as settlement (izoku ichijikin).
(iv) Pecuniary aid in case of withdrawal from the insurance rela-
tions (dattai teatekin), arts. 48–51. This allowance was paid instead of
an old-age pension if the retiring person had been insured less than
20 years, but the minimum period of insurance must have been
three years.
(v) By the amendment of 1944 a pension for widows (kafu nenkin)
and widowers (kanpu nenkin) was introduced. The amount of it cor-
responded to only two months’ wages according to the average reg-
ular wages which were the standard in every respect. This benefit
was paid in the case of death of a person who had been insured
for a period of at least six months but less than 20 years.
8. Soon after the end of World War II it became obvious that
the individual lines of social insurance in Japan got into difficulties
because of uneconomicalness, ponderous management and increas-
ing expenses, all caused by an accumulation of losses owing to ama-
teurish operations and non-payment of insurance contributions, as
598 social law
well as to different forms of management and sectionalism.46 Not to

mention the execution of the real function of social insurance there
was a danger that some of its systems themselves would collapse.
Therefore it became necessary to reorganize the business quickly
and, in view of the changing economic and social conditions, to take
precautions against the development of a gigantic number of unem-
ployed. A commission to report on measures to regulate the social
insurance system and to advise the Welfare Minister was set up in
1946. Moreover, new laws and amendments of existing laws were
made in order to strengthen the system and stabilize the insurance
business.
On 3 May 1947 the new Constitution of Japan art. 27 of which
says that the working conditions shall be fixed by law went into
force. The first fundamental laws with regulations as to social security
were the Labour Standards Law (Ròdò kijun hò ), the Law Concerning
Insurance Against Accident Compensation for Workers (Ròdòsha saigai
hoshò hoken hò ), the Unemployment Benefit Law (Shitsugyò teate hò ) and
the Unemployment Insurance Law (Shitsugyò hoken hò ) of 1947. The
Unemployment Benefit Law was an interim law applied until benefits
under the Unemployment Insurance Law would be paid. The other
laws were amended several times in the following years. The essen-
tials are:47
Under arts. 75–88 of the Labour Standards Law compensation
must be paid for
– medical treatment/recuperation
– loss of earnings during recuperation
– accident
– death
– cost of funeral
– disability for more than three years (indemnity after the payment
of which the employer is no longer obliged to pay compensation).
The condition is that the event setting off compensation is connected
with the activity at work. The amount of compensation is fixed for
each cause. If the event is due to gross negligence by the employee,
46
The development in the first ten years after World War II has been explained
by K. Shimizu, Shakai hoken hò (Social Insurance Law) in Jurisuto ( Jurist), 1956. no.
100, pp. 101–103.
47
The Factory Law of 1911 was repealed.
and this has been acknowledged by the relevant authority, the

employer is not obliged to pay compensation for loss of earnings
during recuperation or for the accident.
Accordingly the employer must pay even though he is not to blame
for the event. In order both to mitigate his duty and secure the compen-
sation for the employee the state organizes the insurance business
under the Law Concerning Insurance Against Accident Compen-
sation for Workers. Large establishments must, smaller ones can take
out the insurance. The employer has to pay the premium, and if
he must pay compensation the state does so instead.
When these laws had come into force the accident rate in indus-
try increased to such a degree that, because of the high cost of med-
ical treatment et al., the deficit in the insurance business grew
alarmingly. Early on, the introduction of payment of wages on a
piece-work basis led to a decrease in accidents.48 At the same time
the premiums to some insurance branches were raised, and so the
stabilization of the business was expected.49
After the end of the war in 1945 the number of unemployed grew
much larger, since demobilized soldiers and dispersed people who
had ended up somewhere else returned to their homes and work,
and firms were reorganized. The struggle of the workers for relief
in case of loss of jobs became more violent. Therefore, in execution
of arts. 25 and 27 of the Constitution, the overdue laws concerning
unemployment relief and insurance were enacted. Depending on kind
and size of the business the insurance was compulsory or optional.
The benefit consisted of money raised by the state, the employers
and the insured. Employer and employee paid one half of the pre-
mium each, the state subsidized one third of the total expenses.
Special laws for public servants took over the tasks of the well-
tried mutual aid associations (kyòsai kumiai ).
(i) Law on the National Public Service Mutual Aid Association (Kokka
kòmuin kyòsai kumiai hò ) of 30 June 1948. The law united the exist-
ing associations of the separate departments and standardized aid-
ing activities.
48
dekidakabarai, Labour Standards Law art. 27 as amended in 1951.
49
The Workmen’s Accident Relief Law and the Law for Insurance Against
Responsibility for Workmen’s Accident Relief of 1931 were repealed as their sub-
jects were taken up by the new laws.
600 social law
(ii) On 2 June 1951 The Accident Compensation Law for the National
Public Service (Kokka kòmuin saigai hoshò hò ), which regulated the
compensation after an accident on duty, was enacted.
(iii) Particular mutual aid associations were established for
a/the educational personnel of private schools (Shiritsu gakkò
kyòshokuin kyòsai kumiai hò ) of 21 August 1953, and
b/the municipal public service (Shichòson shokuin kyòsai kumiai hò )
of 1 July 1954.
Under both laws the same benefits as under the Law on the National
Public Service Mutual Aid Association were granted.
Within the health insurance system there were two groups of
insured persons: the workers under the Health Insurance Law of
1922 and all Japanese nationals according to the National Health
Insurance Law of 1938. The losses at the insurance associations of
the latter were still greater than those at the health insurance asso-
ciations and in 1947 many of them discontinued business. From 1948
steps were taken to reorganize the social insurance system. As men-
tioned above, in 1948 the mutual aid associations of the departments
were integrated into the National Public Service Mutual Aid Asso-
ciation, and regarding the national health insurance management by
the municipalities was made a principle—hitherto associations had
been responsible; the insurance became compulsory. Payment trans-
actions were simplified in 1951.
The welfare pension insurance too, on account of the inflation
after the war, could no longer perform its function of guaranteeing
the essentials of living to the working people. To improve conditions
the diet in 1946 (law no. 48) and 1948 (law no. 127) enacted amend-
ments to the Welfare Pension Insurance Law. The monthly wages
average as the basis of benefits was frozen at an upper limit, the
conditions of payment of pecuniary aid in case of withdrawal were
eased, and measures to avoid damage to the insured as a result of
currency and price depreciation were taken. When, in 1948, the
monthly wages increased, the premium was temporarily reduced in
order to lessen the burden of higher insurance contributions. For the
purpose of calculating the old-age pension the monthly wages aver-
age was fixed at 300 ¥.
There were examples of the endeavour to adjust the insurance
conditions to the economic situation at any time. In continuation of
such efforts the initial and basic laws on social insurance underwent
social welfare law 601
many amendments throughout the years. New laws expanded and

improved the system.
7.3 Social Welfare Law
‘Social welfare’ will include, here, public health as art. 25 para 2 of

the Constitution of 1947 formulates: “In all spheres of life, the State
shall use its endeavours for the promotion and extension of social
welfare and security, and of public health”.
There is a long tradition of social welfare work in Japan. When
Buddhism had been introduced into Japan in the 6th century Buddhist
thoughts were realized as Buddhist-style welfare: mercy, portent char-
ity, altruism, morals esp. almsgiving, observance of the commandments,
practice of compassion, gratitude. Three continuous courses were observ-
able throughout the centuries:
(i) Frequent connections between the Buddhist welfare activities and
the administration and policy of the state from Prince Shòtoku (574–622)
to the Meiji era (1868–1912), (ii) from the famous monks Eison and
Ninshò (13th century) to the 20th century many charitable undertak-
ings notwithstanding strict obedience to the Buddhist precepts, (iii)
foundation of numerous institutions of common weal from Gyòki’s50
constructions to the charitable establishments and associations of our
time. When in the Kamakura period (1185–1333) Buddhism in Japan,
though further cultivating its theological and philosophical thinking,
expanded to a personal religion for laymen it drifted on the base of
Japanese social welfare consciously or unconsciously and this attitude
resulted in the idea of personal social services contributing to the com-
mon weal.51
State efforts to promote social welfare were unsystematic and con-
centrating on mass relief for areas stricken by disasters. To take care
of the people’s welfare was the task of local rulers in the feudal sys-
tem, and it may be assumed that their endeavours aimed first at pre-
venting dangerous discontent and unrest rather than at promoting
humanity. Precautionary measures against disasters would have little
50
668–749. Buddhist priest and missionary who, with the support of the Throne
had bridges built, ponds dug, berths for ships constructed, free lodging houses estab-
lished. See Hajime Nakamura, The Way of Thinking of Eastern Peoples, 1960,
p. 423.
51
The authors of [Iwanami ] Bukkyò jiten (Buddhist Dictionary), 1991, p. 379,
emphasize the importance to reappraise the welfare idea of Kamakura Buddhism
to fix the welfare society in the Japanese way.
602 social law
effect, if any, for “no benevolent government could have averted the
natural calamities which were the immediate causes of distress”.52
However, there are examples of remarkable feats of the bakufu in
favour of the common weal such as subsidies for the rebuilding of Edo
(Tokyo) after vast fire disasters or the construction of a big water pipe
in the 17th century to supply the western part of Edo with good water
(Kanda jòsui ).
As remarked above, because of overlapping it is not always clear
which law should be assigned to social security and which to social
welfare. Partly they merge into each other.
Japanese scholars are not in agreement on the definition of social secu-
rity (shakai hoshò ) and social welfare (shakai fukushi ). Several explana-
tions have been presented, e.g.:
– Social security = the state secures the life of the citizens by means
of public relief or social insurance. The laws dealt with above under
II belong to this heading
Social welfare = the state grants on a large scale the necessary relief
to people who have not enough to live on and to bodily disabled per-
sons and thereby secures and improves their right to live. Laws with
this aim in view are the Livelyhood Protection Law (Seikatsu hogo hò )
of 1950. Social Welfare Service Law (Shakai fukushi jigyò hò ) of 1951,
Juvenile Welfare Law ( Jidò fufkushi hò ) of 1947, Eugenic Protection
Law (Yùsei hogo hò ) of 1947. «Toshiyoshi Miyazawa, Nihonkoku kenpò
(Constitution of Japan), 1955, p. 266».
– Social security = a section of the social policy of the state, namely
measures to secure life according of the confirmation of the right to
live, and, as an additional meaning, the system of securing life on a
certain average level by means of public relief or social insurance as
well as by laws on public health, medical care etc.
Social welfare = explained from the term ‘social work’ (shakai fukushi
jigyò or, formerly, shakai jigyò ): in a wide sense care for people in need
or possibly falling into distress, protection of the old and of children,
promotion of public hygiene, and many activities detailed under the
Law of Social Welfare Work of 1951 (see below). «Sakae Wagatsuma
et al., Shin hòritsugaku jiten (New Dictionary of Jurisprudence), 1957, pp.
436–438.»
– Social security = In October 1950 the Council for the Social Security
System explained the essence of this system that it guarantees by state
support the minimum standards of life to persons who have fallen into
need and together with that aims at improvement of public health and
social welfare. An argument against that definition says that public
health and social welfare are closely related to the social security
52
George Sansom, A History of Japan 1615–1867, 1964, p. 186.
Social Welfare Law 603
system but that it is not appropriate to include them in the definition

of social security (to make an additional remark: the Constitution puts
the three individual terms side by side and there is no room to make
them all one by definition).
Social welfare = the realization of the wholesome and cultured social
living under art. 25 para 1 of the Constitution. The meaning comes
near to the former expressions kòsei (well-being of the people) or min-
sei (livelihood of the nation). «Tatsuo Satò/Shùzò Hayashi (ed.), Hòrei
yògo jiten (Dictionary of Legal Terms), 1959, pp. 351, 352.»
– The common usage takes ‘social security’ as a collective name for
all three terms (welfare, security, health). The Constitution understands
‘social security’ in the narrow sense as guarantee of the minimum stan-
dards of living of the individual by means of social insurance and pub-
lic relief. In contrast to this ‘social welfare’ is the method by which
the state seeks to even out only the disadvantage of socially handi-
capped persons and to secure them the common level. Typical man-
ifestations are the protection of the welfare of children or disabled
persons. «Zennosuke Nakagawa, Shakai fukushi hò (Social Welfare Law),
in Juristo [ Jurist] no. 100 [1956] p. 104.
There seems to be an agreement to the extent that social security
is achieved by social insurance or public aid in case of harmful events
to individuals. In contrast to that social welfare would be defined as
making provision for or maintaining or improving a satisfying way
of life for all.
Meiji legislation concerning social law was not far-reaching. Apart
from the laws on social security referred to above, which bore some
traces of common weal, there was not one significant law on social
welfare worthy of mention.53 The promotion of agriculture and indus-
try, as well as the strengthening of the country in a military sense,
had priority.
In June 1918 a Relief Work Investigation Commission (Kyùsai jigyò
chòsakai ) was established as an advisory body to the Minister of the
Interior. The commission was intended to meet the change of the
economic situation and the unrest in the world of thought. The pres-
ident was the Vice-Minister of the Interior and twenty high officials
and scientists were members of the commission. They had to delib-
erate the matters presented by the minister and give their opinion.
The objectives of the investigation were the business of improvement
53
The development of capitalism, the westernization and the corresponding pol-
icy of the government was meant to promote the welfare of the nation, but it
intensified social differences and blocked effective measures to ease them generally.
604 social law
of living conditions, relief of the poor, protection of children, secu-

rity of work, protection of tenant farming, outlines of setting up retail
markets, betterment of small dwellings, protection of the unemployed,
harmony between capital and labour, and facilities for the safeguard
of juveniles.
In January 1921 the commission was renamed Social Work
Investigation Commission (Shakai jigyò chòsakai ) and its function ex-
tended. It became an advisory body to every minister and had to
respond to their questions. Under the Minister of the Interior as
president the now thirty members of the commission deliberated gen-
eral social work but reported to the responsible minister only. In
addition to the tasks of the former commission the new body pro-
posed outlines of bills on unemployment exchange, village reform,
house-building associations, enforcement of the Relief Law (Kyùgohò )
and others. To judge by the subjects of discussion the commission,
under its old and new name, was engaged in contributions to social
welfare. When in 1924 the Imperial Economic Conference (Teikoku
keizai kaigi ) opened the commission was temporarily suspended but
revived in July 1926 and finally dissolved in 1938.
The dissolution went along with the enforcement (1 July 1938) of
the Social Work Law (Shakai jigyò hò ) of 1 April 1938. It described
social work as follows:
(i) Running of old people’s homes, medical relief stations or other
livelihood assistance.
(ii) Running of orphanages, nursery-schools or other work of juve-
nile protection.
(iii) Running of charity hospitals, maternity hospitals or charity dis-
pensaries, charity medical treatment or midwifery service.
(iv) Running of labour exchange, lodgings or other economic secu-
rity work.
(v) Other business as specified by Imperial ordinance.
(vi) Guidance, cooperation or conducement in relation to any of the
above undertakings.
The object of the law was to regulate the official control of social
work institutions, the aforementioned list of which shows that social
welfare was fostered by private undertakings on an evidently large scale.
The control was executed by the chief official of the local authority.
The Constitution of Japan, art. 25, introduced the term ‘social
welfare’ (shakai fukushi ) and henceforth this term was used in the
Social Welfare Law 605
language of the laws. The Social Work Law of 1938 was radically
reformed and renamed Social Welfare Service Law (Shakai fukushi
jigyò hò ) on 29 March 1951. Art. 1 of the new law defined its purpose:
The object of this law is to lay down the common fundamental items
in all fields of social welfare service, to ensure the just and appropri-
ate execution of social welfare service pertaining to the Livelihood
Protection Law of 1950, the Juvenile Welfare Law of 1947, the Disabled
Persons Welfare Law of 194954 and other laws aiming at social wel-
fare and thereby contribute to the promotion of social welfare.
The social service was divided into two groups. Group 1 was prin-
cipally performed by the state, the local entities or the social wel-
fare corporations. Their duty was to operate institutions under the
Livelihood Protection Law, the Juvenile Welfare Law, the Disabled
Persons Welfare Law and others added by later amendments. Group
2 was concerned more with practical guidance and counselling, help
in everyday situations of persons in need, old or disabled individu-
als, and organization of neighbourly help, especially in regions where
well-being is deficient. A deliberative council (shakai fukushi shingikai )
was established in the Welfare Ministry; it had to investigate and
discuss the common fundamental items of the social welfare service
in all fields. In the local public entities at the level of a prefecture
welfare directors (shakai fukushi shuji ) were appointed, this was optional
in district towns and villages. The directors assisted the chief local
officials in executing the control, arts. 17, 18 of the Social Welfare
Service Law.
It will be gathered from the matters named in that law that it is
not easy to draw a separating line between them and the objects of
social security. The Livelihood Protection Law of 1946 is regarded
as part of the social welfare legislation but it substituted five laws
which can properly be classed with social security.55 The Livelihood
Protection Law, amended in 1950, was based on the idea of the
right to live as described in art. 25 of the Constitution of Japan. It
intended to guarantee that the state would grant to all people in
need the necessary protection according to the degree of need, to
54
Other laws were added by later amendments.
55
They were: Soldiers’ Aid Law, Relief Law, Mother and Child Protection Law,
Wartime Accident Relief Law, Medical Care Guarantee Law. Z. Nakagawa, Shakai
fukushi hò (Social Welfare Law), in Jurisuto ( Jurist) no. 100 (1956), p. 104.
606 social law
secure the minimum standard of living and to further self-support

in this respect; it might be assigned to ‘social security’. That law
provided for help with living, education, housing, medical treatment,
childbirth, occupation, funeral, and the establishment of institutions
for distressed people where these would be aided.
Beside the Livelihood Protection Law early laws in the spirit of
art. 25 of the Constitution were
– Disaster Relief Law (Saigai kyùjo hò ) of 1947, successor of the Law
for Cash Assistance to the Disaster Strickened of 1899,
– Juvenile Welfare Law ( Jidò fukushi hò ) of 1947, successor of the
Juvenile Protection Law and the Law for the Prevention of Bad
Treatment of Children, both of 1933,
– Disabled Persons Welfare Law (Shintai shògaisha fukushi hò ) of 1949.
Many amendments and the increasing number of social welfare laws
show the earnest will of the government and parliament to put art.
25 of the Constitution into action.
The system of social security/insurance and welfare had been
structurally modelled after industrialized countries of the West. In
the seventies of the 20th century a different trend was set. The state
got deeper and deeper into debt, the average lifespan expanded, the
birth rate declined. The conservative Liberal Democratic Party in
power propagated the recollection of specifically Japanese values and
traditions, and in government circles a nationalist mood awoke again.
These circumstances brought about the idea of changing the wel-
fare state into a welfare society, in which the state would be relieved
by other social activists. With this end in view the self-help forces,
namely family and neighbourhood, were to be strengthened. Moreover,
the employers’ contributions had to be improved and developed.
Accordingly, conservative policy resulted in restrictions which did
not meet with broad disapproval, since the majority of Japanese have
continued to have an unconscious attachment to traditional practices.56
56
A.M. Thränhardt, Wohlfahrtsgesellschaft statt Wohlfahrtsstaat—Sozialpolitik
der achtziger Jahre in Japan (Welfare Society instead of Welfare State—Japanese
Social Policy in the Eighties), Zeitschrift für Sozialreform ( Journal of Social Reform),
41st year, no. 3/4 (1995), p. 220.
CHAPTER EIGHT
PENAL LAW
Karl-Friedrich Lenz
The KARIKEIRITSU of 1868
The first legislation in the field of criminal law after the Meiji restora-
tion was the karikeiritsu (Provisional Penal Code) of December 25th,
1868. After the restoration the old criminal law of the Tokugawa era
was still applied for some time. However, the new government saw
the necessity for creating an uniform criminal law applied in the
whole country. The unification of the criminal law was seen as a
far more urgent task than that of the civil law.1 Ishii2 points out two
reasons for this: There was an urgent need to preserve peace and
order immediately following the restoration and it was relatively easy
to adapt the penal laws of the eighth century to modern needs with
only limited revisions. Work on this project progressed quickly, so a
Penal Code was enacted in the first year of the Meiji era.3
This Code was not published in an Official Journal. It is most
easily accessed in an edition prepared by the Japanese Ministry of
Justice in 1945, which can now be found in the library of the
Ministry.4 Penalties under the Code are caning, forced labour, depor-
tation and death. A caning sentence may be one of ten classes
from 10 to 100 strokes. A penalty of 60 to 100 strokes is to be
applied by two punishment officials taking turns, to avoid a harmful
1
Ishii, Ryòsuke, Meijibunkashi 2 hòseihen (History of Culture in the Meiji Era 2
Legal System), Tokyo Yòyòsha 1952, 270–271. An English translation of this book
has appeared as Ishii, Ryòsuke translated by Chambliss, William J., Japanese
Legislation in the Meiji Era, Tokyo Pan-Pacific Press 1958.
2
Ishii, note 1, 271. All page numbers in citations of this book here refer to the
Japanese version.
3
Nishihara, Haruo, Keihò Sòron (Criminal Law, General Theories), Tokyo Seibundò
1977, 13.
4
Shihòshò Hisshòka (Ed.), Nihon kindai keijihòreishù, jò (Modern Penal Codes of
Japan, 1) Shihò Shiryò Bessatsu 17, Tokyo 1945, 227.
608 penal law
effect of fatigue on the power of the strokes. Pregnant women are

not beaten until 100 days after childbirth have passed. Except in the
case of a conviction for sexual offenses (e.g. adultery), in which case
they are beaten naked, women are allowed a gown. There are five
classes of forced labor sentences, from one year to three years, incre-
menting by six months. A person sentenced to forced labor is deprived
of his liberty and used in the construction of streets or canals.
Deportation is divided into three classes (near, middle, far). Women
are exempt from both forced labor and deportation. While fining
was not yet known to the Code as a sanction, all caning, forced
labor and deportation sentences could be bought off by an amount
of money prescribed in the Code for each sentence (nochinikin).5 Death
penalty sentences include the exposure of the severed head (kyòshu)
and crucifixion as the most severe of penalties. The death penalty
by burning was applied in cases of arson.6 If a crime has not yet
been discovered and the criminal turns himself in to the authorities
( jishu), he may be free from prosecution or receive a milder sen-
tence. The Code is very detailed in its listing of criminal offences.
For example, the crime of injuring another person carries a sentence
from twenty strokes with the cane to forced labour or deportation.
The Penal Code lists exactly in which case which sentence is appro-
priate, depending on the amount of injury. The harshness of the
penalties also depends to a large extent on social status. For exam-
ple, injuring a teacher carries a minimum sentence of one hundred
strokes with the cane, which means the safety of the teacher is pro-
tected five times more strongly than that of the common man. Injuring
ones own lord carries a death sentence. Patricide is punished by
crucifixion. Adultery is punished by fifty strokes with the cane, rape
by one hundred strokes. The same crimes committed with or against
the woman of one’s lord is punished by death, in the case of rape
by crucifixion.
The SHINRITSUKòRYò of 1870
The first Penal Code to be published in the Official Collection of

Laws was the shinritsukòryò (Outlines of the New Criminal Law) of
5
Ishii, note 1, 272.
6
Ishii, note 1, 272.
penal law 609
December 20th 1870. The Official Collection of Laws (Hòrei Zensho)

appears since the first year of the Meiji era. The shinritsukòryò Penal
Code is published in the third volume of this Official Collection.7
As its predecessor karikeiritsu, the shinritsukòryò is in many ways not
a modern Penal Code:8 It allows for application of criminal law by
analogy, which is in violation of the ban on retroactive effect of
criminal law. Under modern criminal law, no one shall be held crim-
inally responsible for an act that was legal at the time of commit-
ting the act. There were many discriminations based on social status,
violating the modern principle of equality before the law. Also
vengeance killing (adauchi ) was recognized as a defence.
The KAITEIRITSUREI of 1873
The kaiteiritsurei (Amended Criminal Regulations) of June 13th 18739

was the first Penal Code to use section numbers as in European leg-
islation.10 It did not abolish the shinritsukòryò completely, but was
applied together with the old Code. The most important change was
the abolishment of the old sanctions of corporal punishment, forced
labor and deportation.11 In place of these sanctions the new Code
introduced imprisonment.
The KYùKEIHò of 1880
The urgent aim of creating a national Penal Code was achieved

gradually in the first years of the Meiji era. There was still a need
for quickly reforming the criminal law. The treaties of that time rec-
ognized a consular jurisdiction for foreigners living in Japan. One
reason for this was that the Japanese criminal law was not modern
enough in comparison with western law. One might get the impression
7
Hòrei Zensho 1870 (meiji 3), 572.
8
Nishihara, Note 3, 14.
9
10
Nishihara, Note 3, 14; Tjong, Zong Uk and Eubel, Paul, Strafrecht (Criminal
Law), in: Eubel, Paul (Ed.), Das japanische Rechtssystem (The Japanese Legal
System), Frankfurt a.M. Metzner, 1979, 207.
11
Tjong/Eubel, note 10, 207–208.
610 penal law
that foreign governments of the time did not really appreciate the
prospect of having the severed heads of their citizens living in Japan
exposed because they had violated some feudalistic Penal Code pro-
vision. The Japanese government, however, felt this exemption to be
“unequal” and wanted to have the consular jurisdiction removed.
This made it necessary to have a modern Penal Code, so the work
on the reform of the criminal law continued.12
If lawyers talk about the “legislator” (Gesetzgeber) and his real
aims, this is in most cases not a very exact term, since in modern
democracies there is usually not one single person who could be iso-
lated as the legislator. Rather, legislation is achieved by the com-
bined efforts of many people, and the question is only if there is
one single person who has the most influence in this process.13 In
the description of Tjong/Eubel the reform work was determined
largely by the French professor Boissonade, who was employed as
an advisor of the Japanese Ministry of Justice and presented a draft
in 1876.14 This would make Boissonade the most important legisla-
tor of the Penal Code of 1880.
On the other hand, according to Miyazawa the influence of
Boissonade was maybe not so strong after all.15 Boissonade was not
even a member of the commission which worked out a first draft.
Boissonade participated in the commission work only after that first
draft. According to Miyazawa one could sum up his role in the
reform process as follows: While his influence was definitely very
strong he did not achieve his legislative aims.16
The work of the commission drafting the 1880 legislation is doc-
umented in an edition of hand-written records.17 In the explanatory
introduction the editors describe Boissonade’s, position in the reform
12
Boissonade, Gustave, Projet révisé de Code Pénal pour l’empire du Japon
(New edition of the draft Penal Code for the empire of Japan), Tokyo Kokubunsha
1886 (reprint Tokyo 1988 Sòbunsha), 5. Nishihara, Note 3, 15; Miyazawa, Koichi,
Traditionelles und Modernes im japanischen Strafrecht (Traditional and Modern
Elements of Japanese Criminal Law), ZStW 1976, 822–823.
13
See Lenz, Karl-Friedrich, Das Ungewöhnlichste im Recht (The most Unusual
in Law), München Beck 1992, 95–98.
14
Tjong/Eubel, note 10, 208–209.
15
Miyazawa, note 12, 823–825.
16
Miyazawa, note 12, 825.
17
Waseda Daigaku Tsuruda Bunsho Kenkyùkai (Research Group of Waseda University
on the Tsuruda Collection), Nihon keihò sòan kaigi hikki (Records of the Commission
on the Japanese Penal Code Draft), Tokyo Waseda Daigaku 1976.
penal law 611
process.18 On May 20th 1875, in the constituting session of the com-

mission drafting the 1880 legislation, the following guidelines were
adopted:19
“1. The general structure of the new Penal Code will be taken
from European legislation, while having regard for Japanese cir-
cumstances and customs. Since a translation of the French code exists
already, members of the commission are familiar with that code and
it is possible to direct questions to the French professor employed.
The foundation of the Penal Code shall follow French law, also con-
sidering the Penal Codes of other countries.
2. The language and characters used in writing the Penal Code
shall follow established customs.
3. Professor Boissonade shall be asked to assist in the drafting
process by preparing a project description for the Penal Code (keihò
mikomisho) and comparing it with the draft.
4. The commission shall meet on some occasions with the par-
ticipation of professor Boissonade. He shall be asked to assist the
drafting process by lecturing and explaining the general principles
of French criminal law.”
This means that while the commission was assisted by lectures and
the advice of Boissonade, the actual work of preparing a first draft
was performed only by the Japanese commission members.20 This
first draft was introduced to parliament on April 25th 1876. It was
however, not debated there, but returned as insufficient on May
17th.21 In the same month the method of the commission was changed
drastically. From May 1876 on the commission took a draft pre-
pared by Boissonade as the basis of the discussion. Boissonade took
part in all sessions of the commission and discussed with the Japanese
members the various questions raised. Since Boissonade able to com-
municate in Japanese, use was made in these discussions of a trans-
lator. In this stage of the project Boissonade was the most influential
person in the drafting process.22
18
Sugiyama, Haruyasu and others, Kaisetsu (Explanation), in: Waseda Daigaku
Tsuruda Bunsho Kenkyùkai, note 17, 10–12.
19
Sugiyama, note 18, 10 (translation by the author).
20
Sugiyama, note 18, 10.
21
Sugiyama, note 18, 10–11.
22
Sugiyama, note 18, 11.
612 penal law
However, the final version of the law enacted modified Boissonade’s

proposals in many ways. He writes in 1886 that the many modifications
of the draft were not always useful;23 that the fate of his Penal Code
draft leaves him depressed and losing confidence.24 This shows that
in the opinion of Boissonade himself his influence really was not so
great after all.
The kyùkeihò (Old Penal Code) was enacted on July 17th 1880,25
taking effect on January 1st 1882. It may be described as the first
modern Japanese Penal Code under the full influence of European
law.26 For the first time the ban on retroactive effect of criminal law
was recognized. Section 2 of the Code says: “Under no circum-
stances may someone be punished without a regular Penal Code
provision”. Section 3 of the Code reads: “No law may be applied
to crimes committed before the publication of the law.”27 Discrimination
based on social status is eliminated. The death penalty is limited to
hanging, and severing of heads is abolished.
The Code has only one legal definition in its first section. The
reason for this is explained by Boissonade.28 In his opinion it is best
left to the judges to find the natural meaning of the words used in
the law by interpretation, since it was taken as a general drafting
principle to use common language as far as possible and avoid the
use of technical terms.
Sections 85 to 88 of the Code provide for a more lenient pun-
ishment if the criminal turns himself in to the authorities ( jishu). In
the drafting of these provisions there was no foreign influence, as
this excuse was not known in criminal law of European countries.29
On the contrary, its origins are to be found in Chinese law. The
reason for this system is explained by Boissonade30 as follows: The
criminal by turning himself in avoids an innocent person being sus-
pected or convicted of the crime. This reasoning makes it necessary
to extend the scope of the excuse to all crimes, even murder, since
23
Boissonade, note 12, I–II.
24
Boissonade, note 12, IX.
25
26
27
English translations by the author.
28
Boissonade, note 12, 31.
29
30
penal law 613
the tragedy of convicting an innocent person is to be avoided all

the more urgently in cases of major offences. However, in the final
result section 85 of the Code makes an exception for both murder
and manslaughter, adding to the list of cases in which Boissonade’s
opinion was overruled. Section 86 provides for a more lenient pun-
ishment by two degrees if the criminal returns all the stolen prop-
erty to the victim in cases of crimes against property.31 This provision
seems very modern from a German point of view, since the German
Penal Code was amended to provide for a similar system of more
lenient sentencing in cases where the victim is compensated by the
criminal (Wiedergutmachung).
One point where the influence of Boissonade was strong, was the
question of crimes against the imperial family.32 Sections 131 to 133
of the draft contained provisions of lèse-majesté.33 The reason for this,
as explained by Boissonade, is as follows,34 all European monarchies
have these provisions. Introducing them should meet with no resis-
tance in Japan, where a dynasty has been ruling for more than
twenty-five centuries without interruption. However, there was some
concern in the commission that the act of drafting these provisions
might be violating the dignity of the Emperor. This reminded
Boissonade of an ancient Greek legislation which had no provision
for patricide since this crime would not be committed anyway.35
Leaving out a lèse-majesté section would, however, lead to insufficient
sanctions in the case of a terrorist attack, which was all the more
probable since the Emperor attended many official events rather than
living secluded in his palace. It is kind of ironical that the lèse-majesté
provisions included in Japanese criminal law as a result of Boissonade’s
influence were the prime target of American pressure after World
War Two, resulting in their abolition.36
31
See Boissonade, note 12, 300–301 for the reasons to this provision.
32
Ishii, note 1, 461.
33
Boissonade, note 12, 421–426.
34
Boissonade, note 12, 427–429.
35
36
See page 623 below.
614 penal law
The Reform of 1905
The law of March 31st 190537 introduced for the first time a sys-
tem of suspension on probation. A sentence of up to one year in
prison could be suspended for a period of two to five years. This
did not apply, however, to defendants already sentenced to prison.
The suspension of a sentence did not prevent forfeiture of advan-
tages gained by the crime. The suspension was canceled if the defen-
dant received another sentence for a different offence.
The Penal Code of 1907
The keihò (Penal Code) of April 24th 190738 is the criminal law still
in force in Japan. There have been minor changes and one full revi-
sion. However, the full revision of 199539 had as its main goal the
translation of the Code into modern Japanese to make it more read-
able for the citizen. The Code of 1907 used many difficult Chinese
characters (kanji ) which are not taught in school today. It also uses
katakana instead of hiragana, contrary to modern practice, which makes
the text difficult to read. It was pointed out by Miyazawa40 that the
usage of difficult Japanese language was already adopted in prepar-
ing the Old Penal Code of 1880. This was criticized by Boissonade,
since the Penal Code is not written for scholars but is directed to
the “man on the street”. Writing a Penal Code in a cryptic style
unreadable to most citizens might even be in violation of the mod-
ern principle of nullum crimen sine lege (i.e. no crime without criminal
law). This criticism has been ignored for more than a century. For
the reasons mentioned above the whole code was finally modern-
ized linguistically, but with hardly any changes in substance.
Since the Penal Code of 1907 is essentially being applied today
in Japan, the legislation history of this Code is particularly impor-
tant. Generally speaking, research on the history of law might be
criticized by an unfriendly person as an activity for people with too
37
Law No. 70/1905, Hòrei Zensho 1905 (Meiji 38), Vol. 2, 213.
38
Law No. 45/1907, Hòrei Zensho 1907 (Meiji 40), Vol. 2, page 67.
39
Keihò no ichibu wo kaisei suru hòritsu (Law amending the Penal Code partially),
Law No. 91/1995, Hòrei Zensho 1995 (heisei 7), May Volume, 37.
40
Miyazawa, note 12, 827–828.
penal law 615
much time on their hands, since in most cases research results in

this field are without any significant influence on the actual appli-
cation of the law. However, one of the established methods of inter-
preting the law is the historical method, e.g. finding out by looking
at drafts and parliament records what the actual people in charge
of writing the law really had in mind. The precondition for doing
this is knowing where to find those drafts and records. The contents
of these materials might not be entirely without influence on the
interpretation. On the other hand, of the established methods of
interpretation the historical method is the least important, since it
uses not the law as such but some other texts not published in the
Official Journal.41
The most important changes compared to the old Penal Code
may be summarized as follows.42 The old Code had French law as
its model, while the new Code was strongly influenced by German
law. The division found in the old Code into three classes of crimes
was dropped. The number of sections was reduced by using very
simple language and leaving a large leeway for discretion by the
judges actually deciding the cases. Sanctions involving honour are
dropped, while new sanctions are introduced with an aim of reduc-
ing recidivism.
The various drafts and parliament records are best accessed in a
volume edited in 1923.43 Most important are the official reasons for
the final draft prepared by the Japanese government,44 since these
reasons are usually referred to in an historical interpretation of a
Code. Therefore the most interesting parts of these reasons will be
introduced in some detail below. Before that, however, it is neces-
sary to get a basic picture of the reform process leading to the 1907
Penal Code.
The reform process started as early as 1882, that is the year in
which the Old Penal Code took effect, since in that year there was
41
See the decisions of the German Federal Constitutional Court in BVerfGE 11,
16 and in BVerfGE 1, 299. In these cases the Constitutional Court holds that the
historic method of interpretation is inferior to all other methods and may only be
used to confirm the results reached by using one of the other established methods
of interpretation. See also BVerfGE 54, 277 and Lenz, note 13, 50–51.
42
43
Kuratomi, Yùsaburò (Ed.), Keihò enkaku sòran (Complete Edition of the Penal
Code Development), Tokyo Shimizu Shoten, 1923.
44
Keihò kaisei seifu teishutsuan riyùsho (Reasons for the Penal Code Reform Draft
by the Government), Kuratomi, note 43, 2119–2216.
616 penal law
already some discussion in the Ministry of Justice about reforming

the Penal Code.45 This lead to the institution of a reform working
group (iinkai). A first draft46 was introduced by this working group
in 1890. This draft was debated in parliament,47 but the legislative
period ended without a decision on the draft.48 A second draft was
delivered by another working group in 1894.49 The government asked
the judges and the lawyers’ association for comments on this draft.50
After some changes prompted by this discussion the second draft51
was introduced into parliament in 1901.52 The second draft was
debated in parliament,53 but there was no decision on this draft
either, since the legislative period had ended.54 The next year a third
draft55 was introduced into parliament, debated56 and again not
decided upon.57 A fourth draft was introduced to parliament in 1903,
but there was no debate on it because the parliament was dissolved.58
This fourth draft has not been published, and its contents are
unknown.59 Another working group was established on May 21st
1906,60 and prepared a fifth draft,61 which was introduced into par-
liament on January 23rd 1907.62 The debate in parliament63 led to
some minor changes,64 after which the new Penal Code was finally
adopted.
45
Nishihara, Note 3, 16; Kobayakawa, Kingo, Meiji hòseishiron, kòhò no bu, ge
(Legal History in the Meiji era, Public Law, Volume 2), Tokyo Ganshòdò 1940,
1026.
46
Meiji 23 nen kaisei keihò sòan (Penal Code Reform Draft of 1890), Kuratomi,
note 43, 72–138.
47
Records are published in Kuratomi, note 43, 139–160.
48
Kobayakawa, note 45, 1027.
49
50
51
note 43, 161–203.
52
53
Kuratomi, note 43, 204–434.
54
55
note 43, 435–476.
56
57
58
59
60
61
62
63
64
Kobayakawa, note 45, 1029–1034.
penal law 617
The following discussion of the official reasons for the 1907 Penal
Code will have to be limited to a very few points, since to deal with
every aspect of the Code would mean writing a full-length book on
this legislation, which might end up as a compendium of contem-
porary criminal law in Japan. The purpose here, however, is lim-
ited to giving some insights into the history of the 1907 legislation.
Since only a few points can be chosen for discussion, the selection
criteria for this choice are important. It should be remembered that
I am writing this contribution from a German point of view, and
therefore I am going to consider first those aspects of the 1907 Penal
Code which are different from German criminal law. This same
approach has been followed before in a comparative law effort
directed at finding out the “things Japanese in Japanese law”.65
One of the most striking differences between the Japanese Penal
Code and German criminal law is the treatment of the homicide
provisions.66 The Japanese Penal Code gives the judge great leeway
for discretion about the sentence. Section 199 of the Penal Code
states that in cases of homicide the sentence is to be from a mini-
mum of three years in prison to the death penalty at the most. A
sentence of three years can be suspended on probation. Therefore,
a judge might sentence one defendant to death and have another
defendant leave the court room as a free person.67 In contrast, sec-
tion 211 of the German Penal Code describes some cases of homi-
cide as murder and leaves no discretion whatsoever about the sentence,
life imprisonment being the only option. This is in many cases a
great failure, since life imprisonment might be too harsh consider-
ing all the circumstances of the case.68 It is therefore interesting to
have a look at the official reasons for the homicide provisions in the
Japanese Penal Code of 1907.
The official reasons of the government69 are stated as follows (trans-
lation by the author).
65
Menkhaus, Heinrich, (Ed.) Das Japanische im japanischen Recht (Things
Japanese in the Japanese law), München Iudicium 1994.
66
Götze, Bernd J., Das Japanische im japanischen Strafrecht (Things Japanese
in the Japanese Criminal Law), in: Menkhaus, note 65, 511.
67
Götze, note 66, 511.
68
See Perron, Walter, Sind die nationalen Grenzen des Strafrechts überwind-
bar? (Is it Possible to Overcome the National Boundaries of Criminal Law), ZStW
1997, 291–296.
69
618 penal law
“Section 293 of the Old Penal Code always treats homicide with
poison as murder. However, there are also cases with mitigating cir-
cumstances. Therefore, this section is abolished and the decision left
to the court. Section 298 of the Old Penal Code is a provision on
killing in error. This states only what is obvious in the scholarly dis-
cussion. Since it is not necessary to uphold this section it would only
be a source of confusion. Therefore it is abolished.”
“Section 20070 regulates the crimes stated in the old sections 292
to 294 (manslaughter and murder) in one provision. As a conse-
quence, the range of possible sentences becomes much broader. It
is one of the big questions of criminal law today whether the regu-
lation of homicide should distinguish between murder and manslaugh-
ter. However, it is theoretically not possible to distinguish by the
criterion of premeditation. Therefore distinguishing between murder
and manslaughter leads to the nuisance of useless appeals. Also, when
looking at all the circumstances of a case, murder is not always a
major crime, while manslaughter is not always a non-major offence.
It is also a general principle of the draft new Penal Code to pro-
vide for broad ranges of possible sentences in this case. Therefore
it is the position of the draft that the distinction between murder
and manslaughter is of harmful influence and of no use whatsoever
and has to be abolished. It is to be left to the judges to find the
appropriate sentence from a broad range by evaluating all the cir-
cumstances of the case.”
Another point in which the Japanese criminal law is different from
present German law is the question of the death penalty. The death
penalty is not abolished in the 1907 Penal Code. The reasons why
the government did not abolish the death penalty are as follows71
(translation by the author):
“The new Code upholds the death penalty from the Old Penal
Code. In the scholarly discussion there is not yet an agreement about
the question of abolition. Looking at foreign legislation, there are
already some examples of abolishing the death penalty. However,
the situation today does not yet permit the abolition. Therefore the
draft acknowledges the need to uphold the death penalty in the light
of the experiences up to now.”
70
That is section 199 of the final version.
71
Kuratomi, note 43, 2126.
penal law 619
Another point in which the Penal Code of 1907 differs from

German criminal law is the possibility of a more lenient sentence
because of mitigating circumstances provided for in sections 66 and
67 of the Code. For example, in a homicide case the Japanese judge
would not only have the broad range of possible sentences to choose
from described above, on the basis of section 66 he might also apply
for a sentence even more lenient than the minimum of three years
if there are exceptional circumstances. The German Penal Code has
no such provision. The reasons given by the government for these
sections are very simple. They state that sections 66 and 67 uphold
the principles provided in section 89 of the Old Criminal Code.72
While the draft new Code provides for a much broader range of
sentences than the Old Penal Code, it is still seen as necessary to
uphold these provisions to avoid a sentence being out of proportion
to the gravity of the crime.
One of the most important changes brought by the 1907 Penal
Code were the provisions regarding suspension on probation. As
mentioned above,73 two years before the 1907 Code a limited pro-
bation system was already introduced into Japanese criminal law.
The new sections 25 to 27 of the 1907 Code upheld and strength-
ened this system. Under the new Code a sentence of up to two years
could be suspended. Regarding this point, the official reasons of the
government are stated as follows74 (translation by the author).
“A Penal Code taking the principle of retribution as its main
theme by stating that crime is certainly punished is already a relict
of a time several centuries past. The purpose of drafting a Penal
Code for a nation, indicting and punishing crimes, is to uphold the
order of society as a whole. The purpose is not to inflict pain on
the criminal that is not necessary for upholding that order. That is,
the purpose of the Penal Code is not to punish all criminals, but to
punish only those criminals where it cannot be avoided to uphold
the order of society. Regarding the short-term imprisonment of first-
time criminals, in most cases there are no grave consequences of the
crime, and the criminal has yielded to the temptation of a passing
desire rather than being of an inherently evil nature. After the crime
72
73
See page 614.
74
620 penal law
has been committed and discovered, these first-time criminals feel

by themselves the need to change and find their way back to a good
conscience and normal life. In that situation, it is of no use what-
soever for the upholding of the order of society to sentence these
criminals to the punishment ordered by the law and to execute this
punishment. This leads only to causing the habit of committing other
crimes. There is also the danger that the criminal might learn skil-
ful techniques of crime from habitual criminals. Therefore a special
system for the treatment of first-time offenders who would be sub-
ject to short-term imprisonment is already applied in the United
States of America. This system has been studied by law professors
of all nations and has already been adopted in Belgium and in
France.”
The above examples show that the 1907 Penal Code was definitely
not an exact copy of German criminal law. As has been pointed
out before,75 the influence of German legislation was strong in the
discussion of the various drafts, but there are a lot of differences.
The most important change brought about by the 1907 legislation
was the new probation system. This was introduced before such a
system existed in the German Penal Code. In Germany a probation
system (Aussetzung der Strafe zur Bewährung) was created as late
as 1953.76 There was, however, a strong academic opinion in Germany
favoring a probation system.77 One of the most influential professors
demanding a probation system as part of a purpose-orientated crim-
inal law was v. Liszt. His theory exerted some influence in Japan.78
Therefore, the German influence on the Penal Code of 1907 was
certainly strong. However, this was less the influence of the German
75
Nishihara, Haruo, Der Einfluß des deutschen Rechts auf die moderne
Entwicklung in Japan (The Influence of German Law on the Modern Development
in Japan), in: Eser, Albin/Nishihara, Haruo (Ed.), Rechtfertigung und Entschuldigung
IV, Freiburg i. Brsg. edition iuscrim 1995, 17–18; Nishida, Noriyuki, Das Japanische
im japanischen Strafrecht (Things Japanese in Japanese Criminal Law), in: Menkhaus,
note 65, 527–528.
76
See Jescheck, Hans-Heinrich, Lehrbuch des Strafrechts (Textbook of Criminal
Law), 4th edition Berlin Duncker & Humblot 1988, 90.
77
See Jescheck, note 76, 63–67.
78
See Fukuda, Taira, Die Beziehungen zwischen der deutschen und der japanis-
chen Strafrechtswissenschaft, eine historische Studie (The relations between the
German and the Japanese Academic Discussion of Criminal Law), in: Hirsch, Hans-
Joachim/Weigend, Thomas, Strafrecht und Kriminalpolitik in Japan und Deutschland,
Berlin Duncker&Humblot 1989, 59–59.
penal law 621
Code than that of the German academic discussion.79 This influence

led to the introduction of a probation system in the 1907 Penal
Code.80
Reform of 1921
The Penal Code was amended81 on October 4th 1921, altering the
sanction for embezzlement at work in section 253 of the Code. The
maximum sentence of ten years prison remained unchanged. However,
the minimum sentence of one year was removed.
Reform of 1941
The law of March 11th 194182 changed the Penal Code in many
respects. The first change involves the section on forfeit. After the
reform, the objects of forfeit are not only advantages gained directly
by the crime. Rather, forfeit is made possible also for advantages
gained as a remuneration for the crime (new section 19 of the Code)
and things gained in exchange for advantages gained directly by the
crime, e.g. things bought with stolen money. Forfeit is made possi-
ble also as a sanction against third persons who knowingly receive
stolen goods. When it is not possible to forfeit the advantages gained
directly from the crime, an amount of money corresponding to the
advantage is made the object of the forfeit. The new law also intro-
duces some new crimes. In the new section 96–2 it is made a crime
to prevent debt enforcement by hiding assets or destroying one’s own
property. Likewise, section 96–3 forbids interfering by deception or
intimidation with an auction or a call for tenders. This section also
makes it a crime to fix prices in collusive tendering (dangò ). Other
new crimes in the sections 105–2 to 105–4 and 107–2 of the Code
protect the wartime economy against the spreading of false rumors
79
Nishihara, Haruo, Die Rezeption des deutschen Strafrechts durch Japan in
historischer Sicht (The Reception of German Criminal Law by Japan in a Historical
View), in: Hirsch/Weigend, note 78, 16–17.
80
Tjong/Eubel, note 10, 211f.
81
Law No. 77/1921, Hòrei Zensho 1921 (Taishò 10), Vol. 3, 112.
82
Law No. 61/1941, Hòrei Zensho 1941 (Shòwa 16), March Volume 1, 104.
622 penal law
and other acts of sabotage. Also all provisions concerning bribery

are completely changed.83
After World War II
The American occupation of Japan had a strong influence on leg-

islation, the central aim being to ensure democracy and freedom.
The most significant changes involved constitutional law and law of
criminal procedure. In contrast, reform of penal law was quite lim-
ited in scope.84 The Penal Law of 1907 remained basically unchanged
under the American occupation.
The new Japanese constitution85 introduced a ban on torture and
on cruel punishments in section 36. Section 39 forbids the retroac-
tive effect of criminal law: No one shall be held criminally respon-
sible for an act that was legal at the time it was committed. The
constitution was drafted in a very short time by members of the
American occupation.86
The new principles laid out in the constitution had to be trans-
formed by a complete revision of the legal and judicial codes.87 This
was a considerable task. In November 1946 the new Courts and
Law division was created in the occupation headquarters to handle
the necessary reforms. This division was headed by Alfred C. Oppler.
Since he had a kind of blanket authorization to make decisions,88
Oppler was probably the foreigner with the greatest influence on
contemporary Japanese law, stronger than any of the Meiji era advisors.
The style of the reforms under the American occupation was basi-
cally cooperative. The American side had the power to give orders.
This was usually unnecessary, because the aims of the occupation
83
For a detailed discussion of Japanese bribery law see Lenz, Karl-Friedrich,
Japan, in: Eser, Albin/Überhofen, Michael/Huber, Barbara (Ed.), Korruptions-
bekämpfung durch Strafrecht, Freiburg i. Brg. edition iuscrim 1997, 281–322.
84
Röhl, Wilhelm, Fremde Einflüsse im modernen japanischen Recht (Foreign
Influence on Modern Japanese Law), Frankfurt Metzner 1959, 49.
85
Nihon Koku Kenpò (The Constitution of Japan of 1946–11–03). For an English
translation see Maki, John M., Court and Constitution in Japan, Seattle University
of Washington Press 1964.
86
See Oppler, Alfred C., Legal Reform in Occupied Japan, Princeton, Princeton
University Press 1976, 20, 42–49.
87
Oppler, note 86, 64–65.
88
penal law 623
forces would be reached by thorough discussion with the Japanese

side leading to some cooperative solution. However, there were some
exceptions to this rule. One was the demand for the abolition of the
lèse majesté provisions in the Penal Code. These were considered as
violating the principle of equality before the law. In this case General
MacArthur wrote a letter to the prime minister formally demand-
ing the abolition.89 Repeated discussions of this issue at the highest
level did not lead to a solution to the conflict, which is described
by Oppler as the “psychologically most precarious experience of my
activity in the headquarters”.90 It was difficult for the Japanese side
to comply with the demand for abolition without a directive from
the occupation forces in writing.91
Another exception was the problem of adultery. In the Penal Code
adultery was an offence only for the married woman and the other
party (section 183).92 A married man committing adultery with an
unmarried woman would not be punished. This violated the princi-
ple of equal treatment of the sexes. The occupation therefore insisted
on changing the Penal Law, either by abolishing the ban on adultery
altogether or by making it equally punishable for men and women.
This pressure by the American side led to the abolition of the offence.93
The occupation authorities, however, did not require the aboli-
tion of the patricide provision. Article 200 of the Penal Code94
requested a mandatory sentence of at least imprisonment for life in
patricide cases, while the general minimum sentence in manslaugh-
ter cases is only three years (article 199 Penal Law). This might seem
to be in contradiction to the position of the occupation authority
regarding lèse-majesté. The reason for not requiring abolition of the
patricide provision was “consideration for the sensitive area of fam-
ily relations”.95 Therefore the constitutionality of the patricide pro-
visions remained to be settled by the courts.
89
Oppler, note 86, 74.
90
91
92
Section 183 of the Penal Code of 1907 (translation by the author): Whoever
commits adultery with a married woman will be punished by prison up to two
years. The same applies for the other party of the adultery. These offences are only
prosecuted on demand of the husband. If the husband has allowed the adultery,
his demand is not valid.
93
94
Abolished as late as 1995.
95
624 penal law
While Oppler was an opponent of the death penalty, he did not

try to have it abolished. In his opinion the overwhelming majority
of the Japanese people were still convinced of the deterrent effect of
capital punishment. Therefore Oppler thought that the time had
not yet come to discuss this subject.96 The constitutionality of the
death penalty was to be decided later by the Supreme Court.
Reform of 1958
The law of April 30th 195897 introduced some new crimes as part
of the government’s generally tougher crime-fighting policy.98 The
new section 105–2 of the Penal Code prohibited the intimidation of
witnesses in criminal cases. It was made an offence to force the wit-
ness or a family member of the witness to talk about the crime. Also
the bribery provisions of the Code were amended with a new sec-
tion 197–4, which forbade taking a bribe for an action by another
official. The new section 208–2 of the Code made it an offence for
two or more people to meet with weapons with the intent to inflict
harm on the life, body or assets of another person.
Reform of 1960
The law of May 16th 196099 introduced a new offence of occupy-

ing another person’s real estate in section 235–2 of the Code, with
a sanction of prison for up to ten years. This was seen to be nec-
essary since at that time illegal occupation of other people’s land or
houses was quite common and there was no appropriate offence in
the Penal Code to deal with these cases.100
96
97
Law No. 107/1958, Hòrei Zensho 1958 (shòwa 33), Vol. 1, 179.
98
99
100
penal law 625
Reform of 1964
The law of June 30th 1964101 introduced new provisions against

abduction and ransom demands. The new section 225–2 of the Penal
Code makes it a crime to abduct another person with the intent of
demanding ransom payments, or to make such a demand. The sen-
tence is more lenient if the abducted person is returned safely (sec-
tion 228–2 of the Code). It is also made an offence to prepare for
an abduction (section 228–3 of the Code).
Reform of 1968
The law of May 21st 1968102 raised the maximum penalty for homi-
cide caused by negligence at work (section 211 of the Code)
from three years to five years, since there were many fatal traffic
accidents.103
Timetable104
1868–01–23 Prohibition of suicide.

1868–01–25 Prohibition of bribery and corruption.
1868–04–28 Ban on publishing without licence.
1868–06–08 Prohibition on newspaper publishing without licence.
1868–11–13 Death penalty by burning and by crucifixion abolished.
1869–12–01 Deportation of 3000 Christians in Uragami, foreign
countries protest.
1870–12–20 Shinritsu Kòryò Penal Code.
1872–01–29 Firearms regulation.
1872–02–18 Military Criminal Code.
1872–10–02 Prohibition of traffic in human beings (slavery) and
long-term prostitution contracts.
1872–11–08 Code on administrative offences.
101
102
103
104
See Rekishigaku Kenkyùkai (Ed.), Nihonshi nenpyò (Timetable Japanese History),
Tokyo Iwanami 1993.
626 penal law
1873–02–07 Prohibition of vengeance killing (adauchi ).

1873–02–24 Ban on Christian religion abolished.
1873–06–13 Kaitei Ritsuryò Penal Code.
1874–04–09 Boissonade appointed as professor to the law school
of the Ministry of Justice.
1876–03–28 Ban on wearing swords.
1876–04–14 Civil servant disciplinary law.
1879–01–04 Penalty of exposing the severed head (kyòshu) abolished.
1880–07–17 Penal Code and Code of Criminal Procedure, taking
effect on 1882–01–01.
1883–06–29 Amendment of publishing law: duty to submit the con-
tent 10 days in advance, heavier penalties.
1886–10–23 English ship sinks, all Japanese passengers drown.
1886–12–08 English consular court sentences captain of the ship
to three months’ imprisonment. Public opinion in Japan
critical about this sentence.
1889–02–11 Amnesty on the occasion of the new constitution.
1891–05–11 Russian crown prince attacked in Otsu.
1891–05–12 Japanese government decides to apply treason law in
the Otsu case.
1891–05–27 Japanese Supreme Court decision in the Otsu case:
Imprisonment for life, not treason but attempted murder.
1894–07–16 Treaty with Britain abolishes consular jurisdiction, tak-
ing effect 1899–07–17.
1900–03–07 Ban on smoking for minors.
1902–12–17 First arrests in bribery scandal, 157 persons arrested
by 1903–06–21.
1904–11–16 Prohibition on forming socialist associations.
1907–04–24 New Criminal Code, taking effect 1908–10–01.
1912–09–26 Amnesty on the occasion of the beginning of taishò era.
1926–04–10 Law against acts of violence.
1936–02–26 Coup d’état attempted.
1936–07–05 Tokyo military court decision in February 26 case, 17
persons sentenced to death.
1947–10–14 Revision of Criminal Code under American occupation.
1948–03–12 Supreme Court holds that death penalty does not vio-
late the constitutional prohibition of cruel punishments.
1950–10–11 Supreme Court holds that patricide article 200 of Penal
Law is not unconstitutional.
1973–04–03 Supreme Court holds patricide article 200 of Penal
Law unconstitutional, changing precedents.
CHAPTER NINE
PROCEDURAL LAW
9.1 Administrative Litigation and Administrative

Procedure Law
Lorenz Ködderitzsch
1. Introduction
This essay will give a narrative account of the development of pro-

cedural rules in Japanese administrative law.1 Two distinct but inter-
related areas of law shall be examined, i.e. (a) rules governing legal
redress against administrative actions on an ex post basis and (b) rules
governing the decision making process of the administration on an
ex ante basis. The former may be referred to as administrative litigation
law (“gyòsei soshò-hò ” in Japanese law, “Verwaltungsrechtsschutz” in German
law) and the latter as administrative procedure law (“gyòsei tetsuzuki-
hò ” in Japanese law, “Verwaltungsverfahrensrecht” in German law).
The definition of both, administrative litigation law and adminis-
trative procedure law differs not only between legal systems but is
also subject to profound historical changes within one legal system.
Here a broad and functional understanding of the ex ante and ex post
rules imposed on administrative actions shall be used. While admi-
nistrative litigation law in contemporary Japanese doctrine exclusively
refers to the procedure in adjudicating administrative matters through
independent courts this essay will deal with all mechanisms of legal
protection of individual rights against interference by the adminis-
tration. However, in doing so the emphasis will be for the Meiji
Period on the Administrative Adjudication Law (Gyòsei saiban-hò) and
1
The development of substantive issues of administrative law is covered by
W. Röhl, supra at p. 123 et seq. Given the wealth of literature in Japanese, English
and German with regard to administrative litigation law for the whole period cov-
ered here and for administrative procedure law in the post-war period, this essay
shall primarily serve to summarize these accounts from a German legal perspective
and does not pertain to uncover hitherto unknown historical evidence.
628 procedural law
for the Post-war Period on the Administrative Case Litigation Law

(Gyòsei jiken soshò-hò ). Likewise administrative procedure law will be
understood to cover all statutory and case law rules pertaining to
the administrative decision making process affecting individual rights.
As such rules were rather piece-meal and scattered during the Meiji
Period and up to the early Showa Period, particular emphasis shall
be made on the developments of procedural rights in the Post-war
Period culminating in the enactment of the Administrative Procedure
Law (Gyòsei tetsuzuki-hò ) in 1993.
2. Administrative Litigation Law

2.1. Formative Period (until 1890)
a) Preliminary Remarks
The transfer of power from Tokugawa government (bakufu) to the
ruling elite under the Meiji Emperor as of 1868 marked a significant
change in the political and legal order of Japan. The introduction
of new political and legal concepts as of 1868 did not occur on a
clean slate and are rather to be viewed in the context of the sophis-
ticated political order of the late Tokugawa regime.2 An account of
these rules is beyond the scope of this essay. Thus, only very basic
remarks shall be made here.
Legal rules dealing with the recourse of an individual against
administrative actions was a concept utterly alien to the political
order of Japan until the beginning of Meiji Period. As Steenstrup
remarks in his “History of Law in Japan until 1868” there was no
distinction between legislative, executive and judicial powers during
the Tokugawa Period.3 In his view, laws did not grant individual
rights against the authorities and justice was always a grace, not a
right.4 Although one may argue that there were some means to make
grievances heard during the Tokugawa Period and the early Meiji
Period, there were at least until 1872 no legal means in a forma-
lized sense to seek relief from an administrative disposition.
2
Herman Ooms, Tokugawa Village Practice: Class, Status, Power, Law, Berkeley
1996.
3
Carl Steenstrup, A History of Law in Japan until 1868, 1991, p. 116.
4
Steenstrup supra note 2 at p. 120.
litigation and administrative procedure law 629
During the last years of the bakufu and the early Meiji Period new
political and legal concepts were introduced in Japan, including the
concepts and terminology of the separation of powers and of indi-
vidual rights. Incidentally, new words were also created for the
concept of administrative law which beyond the mere semantics
reveal the deeper political understanding of the leading actors of the
time.5
The reasons for introducing western political and legal concepts
were diverse and included the aim of maintaining Japan’s indepen-
dence vis-à-vis the western powers as well as renegotiating the con-
sular treaties. They also included the aim of increasing the efficiency
of the Japanese socio-economic system and of dealing with internal
discontent.6 However, just as diverse as these reasons were, are the
ideas and concepts the leading figures of the early Meiji Period
turned to. The concepts which were eventually implemented reflected
the political struggle taking place at that time. Before describing the
outcome of this struggle in greater detail a few more preliminary
remarks regarding the reception of western, in particular of German
legal concepts should be made.
As Wada points out, the legal instruments adopted in Japan were
chosen with little regard for their underlying philosophy7 and could
therefore not develop in the same way as in the country of origin.
As the adopted legal concepts were voided from their underlying
philosophy, elements of conflicting legal concepts could be and were
chosen in an eclectic manner.
For instance, while it is difficult to assess whether the Prussian
model was more restrictive or conservative than the Austrian model
of administrative litigation, it is clear that each model was in itself
5
While earlier authors referred to the administration with the character com-
pound “gyòhò ” (hò[ritsu] wo okonau), i.e. within the concept of the separation of pow-
ers the branch entrusted with carrying out the laws, Itò Hirobumi and Inoue
Kowashi strongly advocated for the character compound of “gyòsei” (sei[ ji] wo okonau)
as the institution which deriving its authority from the emperor enforces policies,
cf. Miyazaki Yoshio, Gyòsei soshò to gyòsei hògaku [Administrative Litigation and
Administrative Law Doctri ne] 1991, pp. 17–19.
6
Cf. Ishii Ryòsuke, A History of Political Institutions in Japan, 1976; Murakami
Junichi, Einführung in das japanische Recht, 1974; Wilhelm Röhl, Fremde Einflüsse
im modernen japanischen Recht, 1959.
7
Wada Hideo, The Administrative Court under the Meiji Constitution, in Law
in Japan volume 10, p. 2.
630 procedural law
consistent.8 Thus, although in the Austrian model there was only

one administrative court for the entire Austrian empire this was bal-
anced by the court being competent to hear charges on all admin-
istrative matters on the basis of a general clause and by the court
having the right to review procedural aspects of an administrative
disposition. The reason for a single court of administrative matters
was to ensure the uniform application of administrative law in a
multinational empire such as Habsburg Austria. The Prussian model
was considered as more restrictive due to the fact that only matters
listed in an enumerative clause could be brought to court. However,
the multilayered appeals system in Prussia and the fact that from
the outset an extension of the enumeration clause was envisaged and
later on carried out, meant that the system of administrative litiga-
tion was fairly accessible.9
One observation which might be derived from the above is that
it may not necessarily have been the introduction of German legal
concepts as such which lead to a restrictive administrative litigation
system in Japan but rather the (negative) cherry picking of elements
of various legal models to be found in Germany and Austria regard-
less of their underlying philosophies.10 This observation is not nec-
essarily contradicted by the advice given by a leading Prussian scholar
Rudolf von Gneist and quoted by Wada as a conservative-reac-
tionary view: “I wish to repeat, for the good of Japan, that an admin-
istrative court should not be instituted. Administrative adjudication
advances as general civilization advances; it should not be established
until after a whole system of ordinary laws is completed [. . .]”.11
8
C.H. Ule, Zu den Anfängen der Verwaltungsgerichtsbarkeit in Deutschland
und in Japan, in Verwaltungsarchiv 1989, p. 303.
9
Miyazaki Yoshio points out that the yearly average of administrative case lit-
igation for the years 1890 until 1916 was about 5,500 cases in Prussia compared
to 277 cases in Japan, Meijikenpò moto no gyòseisaiban [The Administrative Court under
the Meiji Constitution], in Hògakukyòshitsu Tokushù Saibanseido 100 nen [special edi-
tion of Hògakukyòshitsu on one-hundred years of judiciary] 1990, p. 14.
10
Cf. John O. Haley, Toward a Reappraisal of the Occupation Legal Reforms:
Administrative Accountability, in Fujikura (ed.) Eibeihò ronshù—Tanaka Hideo sensei
kanreki kinen (Essays on Anglo-American Law—In Celebration of Professor Hideo
Tanaka’s 60th Birthday), 1987, p. 457 who comments as follows: “Japan subseq-
uently adopted what was in form, but only with barest substance, a European-style
administrative court system”.
11
Wada, supra note 7 at p. 16.
Gneist, although generally and perhaps not entirely inaccurately

portrayed as a conservative, was in fact an advocate of local self-
government. Based upon his ideas, the review of administrative dis-
positions at the first level of administrative adjudication was entrusted
in Prussia to self-governed local bodies, thereby ensuring the citi-
zen’s participation in the political process.12 While it is not clear how
much Gneist understood or knew about Japan, he probably was
guided by his historic approach to legal development whereby the
socio-political context defined the legal structures. Whether this was
an appropriate approach for Japan is open to debate as Japan was
in need of introducing in a very short span of time a new legal
superstructure. Yet also Lorenz von Stein, who appears to have
been more sympathetic and knowledgeable about Japan and who
certainly was more liberal than Gneist, based his advice on a legal
philosophy which did not find an equivalent in Japan. Lorenz von
Stein’s concept of the socially engaged and responsible monarch
(sozialer Monarch)13 presupposed that the king or emperor would actively
take part in the government of the state for the benefit of the peo-
ple. This understanding of the role of the emperor was shared by
Hermann Roesler, a leading advisor to the Meiji government.
However, as Haley pointed out “[. . .] what Roesler did not know
or seem to comprehend was the historical role of the Japanese impe-
rial institution. In order to shield the emperor from responsibility for
political decisions, he was to make none. Political policies were to
be determined and carried out by others acting in his name”.14 Yet,
the Meiji Constitution and central elements of the administrative sys-
tem were centered on the emperor who could not live up to this
role. This crucial defect of the Meiji Constitution is amongst other
factors due to a separation of underlying legal premises from the
mechanics borrowed from foreign jurisdictions.
12
Ch. von Unruh, Vom Gesetzesstaat zum Rechtsstaat, in Deutsches Verwaltungs-
blatt 1975, p. 838 [841].
13
With respect to the concept of the “sozialer Monarch” of Lorenz von Stein
as introduced to Japan by Hermann Roesler cf. Johannes Siemes, Die Gründung
des modernen japanischen Staates und das deutsche Staatsrecht, 1975, p. 75.
14
In Haley’s view (cf. supra note 10) the lack of an ordering force to balance
conflicting branches of government and of political centers of powers was the Meiji
constitution’s greatest defect for which there was no cure.
632 procedural law
b) Legislative Process
During the initial stage of the Meiji government and at a time when
it was struggling to defend its existence it had to abide by the prin-
ciple proclaimed by the Meiji emperor of deciding matters by pub-
lic debate and public opinion. In 1869, an office was established to
process petitions (seigan) and memorials (kenpaku) submitted to the
Meiji government. According to Wada,15 this system of memorials
may be qualified as an embryonic stage of administrative suits in
the sense of processing requests from the people regarding adminis-
trative cases. In 1872, the means of making an appeal against admin-
istrative decisions was expanded by an order issued by the recently
established Ministry of Justice under its minister Etò Shimpei. This
order granted individuals the right to bring a suit before the district
court or the Ministry of Justice court against dispositions issued by
local – but not central – administrative entities (including the newly
established prefectures). The Japanese people actually made use of
this system to an extent that leading figures in the Meiji government
such as Itò Hirobumi or Inoue Kowashi found quite shocking.16 It
was also fiercely opposed by the administration, in particular by the
prefectural governors, as an undue restraint on public administra-
tion. Besides theoretical considerations, this experience with the
Ministry of Justice order of 1872 shaped in particular the concep-
tion of Inoue Kowashi as one of the main drafters of the Administrative
Adjudication Law of 1890.17
Upon Itò Hirobumi’s return from a study tour in Europe he
instructed in 1877 Inoue Kowashi to prepare the groundwork for
drafting an Administrative Adjudicative Law to be ready with the
enactment of the constitution.18 Inoue Kowashi was assisted by
15
Wada, supra note 7 at p. 10.
16
As Itò Hirobumi remarks in his Commentaries on the Constitution: “The
courts are now swamped with documents bringing actions against local officials; all
of a sudden, one is made to witness abuses by judicial officers exerting undue restraints
on the administration”, cited after Wada, supra note 7 at p. 12.
17
Misaka Yoshirò, Meiji zenki niokeru gyòsei jiken toriatsukai seido no ichikòsatsu [Reflection
on the dealing of administrative matters in the early Meiji Period], in Osaka Hògaku,
August 1986, p. 139, pp. 152–153.
18
Nie Min, Meiji gyòseisaibanseido seiritsushi ni kansuru ichikòsatsu – gyòseisaibanhò no
seiritsukatei to Inoue Kowashi [Reflections on the legislative process of the Meiji admin-
istrative court system – Inoue Kowashi and the legislative process of the Administrative
Adjudication Law], in Hongohòseikiyo 1993, p. 223.
Roesler and Albert Mosse. While the former was very much impressed
by the Austrian administrative litigation system and under the influ-
ence of Lorenz von Stein’s legal concepts,19 the latter was a pupil
of Rudolf von Gneist, who interestingly enough had declined to see
Itò Hiròbumi during his study tour in Prussia.20 Roesler presented
in 1884 a first draft which contained elements to be found in the
French Conseil d’Etat. Inoue Kowashi had, however, discouraged in
a letter to Itò Hirobumi to follow the French approach. Thus, the
Roesler draft was rejected but parts of it did serve as a basis for the
subsequent drafts. Following a second draft by the Bureau of Legislation
in 1886/87 Inoue Kowashi prepared together with Roesler a third
draft in 1889. The final and prevailing draft was drafted by Mosse
and published in the course of 1889 with the Administrative Adju-
dication Law being enacted in 1890. While Roesler prevailed with
the concept of a single court of administrative adjudication within
the executive branch he was not able to persuade the Meiji gov-
ernment to include a general clause whereby all administrative dis-
positions could be challenged in the administrative court. Based on
the experience with the judicial system introduced by the Ministry
of Justice order in 1872 the Meiji government opted for the enu-
meration clause as suggested by Mosse in order to safeguard the
primacy of the administration within the constitutional separation of
powers.21
2.2. Administrative Adjudication Law (1890 to 1947)
a) The Legal Framework

The central constitutional provision with regard to administrative liti-
gation is to be found in Article 61 of the Meiji Constitution, in force
from 1890 to 1947 and which reads as follows:
No suit at law which relates to rights alleged to have been infringed
by illegal measures of administrative authorities, and which shall come
within the competency of the Court of Administrative Litigation spe-
cially established by law, shall be taken cognizance of by a Court of
law.
19
For a comprehensive description of the role of Hermann Roesler in the mak-
ing of the Meiji Constitution cf. J. Siemes, supra note 12.
20
Cf. Ule, supra note 8.
21
Cf. Miyazaki, supra note 5 at pp. 51–53 and Wada supra note 7 at pp. 15–19.
634 procedural law
Besides the Administrative Adjudication Law the work of the Adminis-

trative Court was further shaped by the Law on Cases for Adminis-
trative Adjudication of Illegal Dispositions by Administrative Authorities,
both laws which became effective in 1890 and remained in force
almost completely unchanged until 1947.
Under the Administrative Adjudication Law there was only one
Administrative Court, located in Tokyo, which decided on a single
instance basis, i.e. while administrative disputes might have gone
through one or several instances of internal review by the adminis-
tration, the Administrative Court decided in a first and final instance
with no appeals possible.
Although the constitutional basis of the Administrative Court was
to be found in the chapter on the judiciary and although the court
was established on the basis of a statute and not an imperial order,
the Administrative Court was not subject to the rules applicable to
judicial courts. Thus, while the Administrative Court had an inde-
pendent status within the executive branch, the members of the
Administrative Court referred to as councilors (hyòjòkan) did not enjoy
the constitutional and statutory guarantees of independence of judi-
cial judges. More often than not, the councilors held high ranking
administrative offices besides being members of the Administrative
Court.22
The enumerative clause of administrative matters which could be
brought to the Administrative Court was contained in the Law on
Cases for Administrative Adjudication of Illegal Dispositions by
Administrative Authorities. The law listed only the following five
items which primarily dealt with property rights: (1) assessment of
taxes and fees, (2) the disposition of tax delinquency, (3) the denial
or cancelation of business licenses, (4) irrigation and public works
and (5) division of land in terms of public and private ownership.23
A suit was only admitted to the Administrative Court if the plaintiff
could claim that the administration had infringed on his rights as
guaranteed by the constitution or by statutes. Administrative action
merely affecting a citizen in a negative manner without constituting
a direct breach of guaranteed rights was therefore not subject to
review by the Administrative Court.24 Furthermore all means of inter-
22
Wada supra note 7 at p. 46.
23
Citation after Wada supra note 7 at p. 23.
24
Miyazaki supra note 9 at p. 15.
nal administrative review of a challenged administrative disposition,

such as an administrative appeal (sogan), had to be exhausted before
a suit could be filed with the Administrative Court. Each statute and
ministerial order dealing with a particular area of administrative law,
e.g. Road Law, Land Expropriation Law etc., defined whether and
to what extent an internal administrative review was to be pursued
first. Thus, in some cases the plaintiff could either immediately file
a suit or had the choice between filing a suit or of first filing an
administrative appeal or again in other cases was obliged first to file
an administrative appeal before filing a suit. As there was no ratio-
nale behind the individual requirements of the various administra-
tive laws a degree of uncertainty and arbitrariness prevailed.25 According
to Miyazaki there were also a number of cases where a plaintiff
was clearly required to go through the administrative appeals sys-
tem as a prerequisite for filing a suit, with the administration not
rendering any decision on the appeal, thus making it impossible to
file the suit.26 Even if such cases may have been rather the excep-
tion, long delays in obtaining review of administrative appeals and
subsequently a ruling by the Administrative Court were part of the
system. Under the Administrative Adjudication Law and the Adminis-
trative Appeal Law filing a suit or an administrative appeal did not
lead to an automatic stay of the challenged administrative disposi-
tion. Upon request of the plaintiff or ex officio the Administrative
Court could order the administration to suspend the administrative
disposition. However, as the criteria for ordering a suspension were
not clearly set forth there were hardly any cases where the Admi-
nistration Court granted an injunction of suspension.27
A further defect in the administrative litigation system pointed out
by Wada is that there was no court appointed to resolve on conflicts
of competence between the Administrative Court and the ordinary
judiciary in spite of a relevant section (Article 45) in the Administrative
Adjudication Law.28 The failure to provide a mechanism for adjust-
ing conflicts among the various branches of government, however,
seems to have been a pervasive and critical defect not only of the
25
26
27
28
636 procedural law
judiciary but of the Meiji Constitution itself, in particular with respect

to the relation between the legislature and the bureaucracy.29
Neither the Administrative Adjudication Law nor the Law on
Cases for Administrative Adjudication of Illegal Dispositions by
Administrative Authorities contained any meaningful rules of proce-
dure of the Administrative Court. The court rather had to rely on
an application mutatis mutandis of the rules of civil procedure, however,
only to the extent that these rules did not contradict principles inher-
ent in administrative law. While this did give the Administrative
Court some leeway in conducting its hearings it was also a source
of uncertainty for the plaintiffs and their counsel.30
Finally, as Haley pointed out the Administrative Court had unlike
English or American courts no remedial power and was thus lim-
ited to declaring illegal acts invalid or to nullify their effect.31
b) Evaluation of the Administrative Adjudication Law

Against this background it does not come as a surprise that most
postwar Japanese legal scholars are critical of the role the Administrative
Court played in safeguarding citizens’ rights against the administration.
Thus Miyazaki points out that the Administrative Court was – as
the drafters of the Administrative Adjudication Law had intended –
extremely reluctant to grant relief against the administration. Not
only was the figure of suits brought to the Administrative Court
rather low but relief was granted in about only 20% of all cases.32
Based on a comprehensive review of major rulings by the Admi-
nistrative Court, Wada concludes that the court “rather than pro-
viding relief for the people’s rights functioned more in the interest
29
Cf. Haley supra note 10 at p. 546.
30
Takabayashi Katsumi, Einführung in das japanische Verwaltungsprozeßrecht,
in Verwaltungsarchiv Band 55 (1964), p. 359.
31
Haley supra note 10 at p. 548.
32
Cf. figures by Miyazaki supra note 9 at p. 15 who points out that allowing for
the respective size in population there were, on a very rough measure, 40 to 60
times more administrative suits in Prussia than in Japan. For a detailed statistical
analysis cf. Wada supra note 7 at pp. 56–64. Under the present system of the
Administrative Case Litigation Law the number of case where the applicant is
granted relief is not significantly higher. Whether this indicates that the success rate
under the Administrative Court system was not all that low or rather that the pre-
sent system is still restrictive is open to debate.
of self-regulation through administrative supervision and, in substance,

in the interest of perpetuating administrative power”.33
One should note, however, that in a number of cases citizens
could obtain a certain degree of justice by seeking compensation
under the civil law doctrine of tort being adjudicated by ordinary
courts without the Japanese state being shielded from such claims
by theories of state immunity as prevailed in Anglo-American legal
tradition.34
Moreover pre-war Japanese commentators – such as the leading
administrative law scholar Minobe Tatsukichi – were highly critical
not only of the legal framework of the Administrative Court but in
particular also of the rulings rendered by the court.35 One is left
with the impression that despite its limitations the Administrative
Court could have played a more active role if only its councilors
had been able to work in a more independent and professional man-
ner. Criticism was not solely confined to academia. From 1893 until
1936 various members of the House of Representatives made thir-
teen attempts in total to modify the administrative litigation system,
which in particular aimed at expanding the enumeration clause or
changing it for a general clause, and further by introducing a sec-
ond level of judicial review of administrative matters. Except for two
initiatives sponsored by the government regarding technical aspects
of the relevant statutes none of these attempts were successful in
changing the administrative litigation system in a meaningful way,
either because the initiatives were not endorsed by the House of
Representatives or because they were rejected by the more conser-
vative House of Peers.36
With the surging nationalism and militarism in Japan bringing
about a general decline of the rule of law in the late 1930s, an
improvement of the administrative litigation system through an amend-
ment of the Administrative Adjudication Law was not feasible. The
33
Wada supra note 7 at pp. 28–29 with comments based on the review of court
rulings by Minobe Tatsukichi, Gyòseihò hanrei [Administrative law decisions], 1926.
34
Haley supra note 10 at p. 549 who concludes that “[. . .] the Japanese judi-
ciary carved out a broad area in which the government could be sued directly for
damages.”
35
Minobe Tatsukichi, Gyòsei saiban hò [Administrative adjudication law], 1929.
36
Wada supra note 7 at pp. 49–55.
638 procedural law
statute therefore remained unchanged until the end of the Second

World War.
2.3. Postwar Period
a) Constitutional Framework
Following Japan’s defeat and its occupation by the Allied Powers, in
effect the United States’ Army, the political and legal order of Japan
was again subject to dramatic changes in the period between 1945
and 1952. Under the avowed aim of the Supreme Commander for
the Allied Powers (SCAP) to cure the defects of the prewar politi-
cal and legal order by a combination of parliamentary supremacy
and judicial control a new constitution (Nihon kokukempò, hereinafter
“Japanese Constitution”) was drafted in 1946 and replaced the Meiji
Constitution in 1947.37 Pursuant to Article 76 of the Japanese
Constitution the whole judicial power is vested with the Supreme
Court and with the judicial courts as established by law (Section 1).
The creation of special courts is prohibited and administrative bod-
ies may not issue rulings as courts of last instance (Section 2). As
under the unified judiciary there was no legal basis anymore for the
Administrative Court; it was duly abolished concurrently with the
revocation of the Administrative Adjudication Law of 1890.
As a consequence ordinary courts were to deal with all challenges
of administrative disposition brought to their attention by citizens on
the basis of the Civil Procedure Code. However, the ordinary courts
were ill-equipped to deal with administrative matters on the basis of
the Civil Procedure Code which did not spell out any specific rem-
edy in case administrative dispositions were found to be illegal. As
a stopgap measure a Law on the Temporary Amendment of the
Civil Procedure Code (Minjisoshòhò no òkyùtekisotchi nikansuruhòritsu) was
enacted in 1947 without the explicit approval by SCAP. This law
mainly dealt with the question of the period for filing of a suit ulti-
mately within six months after the issuance of an administrative dis-
position.38 As the judges of the ordinary courts were not used to rule
37
Cf. p. 58 n. 67 with respect to the development of constitutional law in Japan.
38
Shiono Hiroshi, Gyòseihò ni (Administrative Law Part II], 1994, p. 56.
on administrative disputes and as they did not find any guidelines

either in the Civil Procedure Code or in the Temporary Amendment
Law the first postwar years where a period of trial and error with
some courts adopting the prewar approach granting the bureaucracy
an extensive discretionary power and other courts aiming at a com-
prehensive judicial review of administrative dispositions.39
b) Administrative Litigation Special Measures Law (1948)

It became evident that in order to reconcile particularities of a judi-
cial review of administrative dispositions with rules of civil proce-
dure further legislative action was necessary and ultimately the
Administrative Case Litigation Special Measures Law (Gyòsei jiken soshò
tokurei-hò, hereinafter the “Special Measures Law”) was enacted in
1948. As its name indicates this very concise law containing only 12
articles aimed at supplementing the Civil Procedure Code with spe-
cial rules with respect to administrative disputes. Thus, under the
Special Measures Law rules of the Civil Procedure Code were gen-
erally to be applied unless exceptions were explicitly made in the
said law. These exceptions required inter alia the exhaustion of admin-
istrative appeals and dealt with the period for filing a suit, determi-
nation of the defendant authority, intervention and joinder of other
public authorities, taking of evidence by the court etc.40 Under the
Special Measures Law an appeal to the courts did not automatically
suspend the execution of the challenged administrative disposition,
but could be imposed either upon request by the plaintiff or ex officio
in the case of urgent necessity to prevent irreparable damage to the
plaintiff (article 10). However, in case a court ordered suspension of
execution the prime minister had the power to override the court
order if public interest so required. Furthermore, pursuant to its
article 11 the court could reject the application for revocation or
nullification of an administrative disposition even though the chal-
lenged administrative disposition was held to be illegal if under spe-
cial circumstances the revocation or nullification would seriously harm
the public welfare (so-called rulings of special circumstances; jijòhanketsu).
In Haley’s view these provisions – which under the Administrative
39
Harada Naohiko, Gyòseihanrei no yakuwari [ The Role of Court Rulings in
Administrative Law], 1991, p. 6.
40
640 procedural law
Case Litigation Law still exist today – severely restricted the capac-
ity of the courts to provide effective relief.41 To be fair one should
point out that the provisions have very rarely been applied. In the
few recent cases in which courts did issue rulings of special cir-
cumstances, the plaintiffs had in most cases lost through time lapse
a legal interest. While the courts cannot grant relief in such cases
they can in the form of a ruling of special circumstances explicitly
state that the administration had acted illegally.
An interesting question here is whether the overriding power of
the prime minister was linked to statements by SCAP as Saitò42
indicates or whether it was more of the making of the Japanese
drafters themselves as Haley would rather imply.43 Without any
doubt the ruling by the District Court of Tokyo in February 1948
which had granted the applicant Hirano a stay of execution of an
order of his removal from public office, came as a great surprise to
both the Japanese government and SCAP.44 Most of the legislation
enacted in the first postwar years was screened by the Courts and
Law (later Legislation and Justice) Division of SCAP headed by Alfred
Oppler, a former administrative law judge in the Weimar Republic.
Haley has pointed out the irony that the biggest if not sole mis-
judgments by SCAP in shaping a democratic postwar Japan should
have occurred in the area of public law.45 Yet, as Haley derives
from contemporaneous notes of SCAP there is nothing in Oppler’s
account to suggest that the Hirano case bore any relation to the
Special Measures Law.46
To the extent that under the Special Measures Law administra-
tive matters were subject to judicial review by independent courts
under principles to be found essentially in the Civil Procedure Code
this marked a significant departure from the Administrative Court
system under the Meiji Constitution as described above. Yet, many
aspects of the Special Measures Law such as the remedies available
41
42
Saitò Atsushi, Gyòsei jiken soshò tokurei hò no rippò katei [The legislative history
of the administrative case litigation special measures law] in Ukai (ed.) Gyòsei tet-
suzuki no kenkyù (Research on administrative procedure), 1961, pp. 213–266.
43
Haley supra note 10 at p. 554 seq.
44
For a detailed account of the so-called Hirano case cf. Miyazaki Yoshio,
Hirano-jiken [The Hirano case] in Jurisuto 1990, p. 34.
45
Haley supra note 10 at p. 549 seq.
46
against illegal administrative dispositions, the exclusion of an auto-

matic stay of execution of a challenged administrative disposition
and in particular the concept of the administrative disposition ( gyò-
sei shobun, Verwaltungsakt) itself were clearly inherited from prewar legal
theory and the Administrative Court system. While the so-called
court ruling of special circumstances described above was not included
in the Administrative Adjudication Law of 1890 it had been put
forth in the draft of a new Administrative Adjudication Law in 1932.47
Finally, in the wake of the Hirano case a veto right of the head of
the executive branch of government over a court injunction of sus-
pension of execution of an administrative act had been newly intro-
duced even though it could hardly be thought to be compatible with
the aim of ensuring the accountability of the bureaucracy through
legislative supremacy and judicial oversight.48
c) Administrative Case Litigation Law (1962)

As the Special Measures Law had been drafted under considerable
time constraints and only dealt with certain aspects of administra-
tive litigation, it quickly became apparent that this law was not suited
to deal with the judicial review of administrative actions. In 1955,
the government instructed the Legislative Commission to set up a
subcommittee responsible for drafting a new law of administrative
litigation. The subcommittee published a preliminary draft in 1960
which was enacted without major modifications in May 1962. The
Administrative Case Litigation Law (Gyòsei jiken soshò hò) became
effective in October 1962 and has with very few modifications re-
mained in force as the applicable law for administrative litigation
until today.
Rather than supplementing the Code of Civil Procedure with
specific rules for administrative litigation as under the Special Measures
Law of 1948, the Administrative Case Litigation Law sets forth in
a comprehensive manner specific rules on administrative litigation
which may be supplemented by the Code of Civil Procedure. The
key elements in drafting the Administrative Case Litigation Law were
to broaden and to define more precisely the types of legal recourses
as well as to abolish the principle of the exhaustion of administrative
47
Shiono supra note 38 at p. 58.
48
642 procedural law
remedies as a precondition for filing a suit. The Administrative Case

Litigation Law repealed neither the principle of suspension of exe-
cution of an administrative disposition only upon explicit court order
with the possibility of a veto thereon by the prime minister nor the
judgement of circumstances ( jijòhanketsu, cf. above b) introduced under
the Special Measures Law; these legal instruments were, however,
further refined and clarified in the new law.49 The Administrative
Case Litigation Law was therefore not a radical break away from
the Special Measures Law. As one of the leading administrative law
scholars involved in the drafting of the Administrative Case Litigation
Law notes50 it was not as if a new system of administrative litiga-
tion was developed from scratch and free of previous legal doctrine.
According to the above commentator this would not have been fea-
sible. Thus, despite its numerous deficiencies the draft of an Admi-
nistrative Adjudication Law of 1932 had a major impact on both, the
Special Measures Law and the Administrative Case Litigation Law.
A more detailed description and analysis of the current Admi-
nistrative Case Litigation Law and its impact on judicial review of
administrative actions is beyond the scope of this essay with its
emphasis on the description of historical developments.51 Therefore
a few comments on its salient features should suffice here. The
Administrative Case Litigation Law is centered on the revocation/
nullification of an administrative disposition as the essential means
of judicial remedy. Borrowing from German legal doctrine judicial
review is only made with respect to administrative dispositions
( gyòsei shobun in Japanese law, Verwaltungsakt in German law). While
German courts have adopted since the postwar period a broad under-
standing of the concept of administrative dispositions the Japanese
courts have construed this concept in a very formalistic manner. On
49
Shiono supra note 38 at p. 59.
50
Ogawa Ichirò, Gyòseijikensoshòhò rippò no kaiko to hansei [Looking back and
Reflecting on the Legislative Procedure of the Administrative Case Litigation Law],
p. 197 cited from Shiono supra note 38 at p. 59.
51
Cf. Ködderitzsch, Rechtsschutz gegen die Verwaltung [Legal Protection against
the Administration] in Zeitschrift für Japanisches Recht Nr. 5 (1998), pp. 31–54
with a German translation of the Administrative Case Litigation Law by Ködderitzsch
in Zeitschrift für Japanisches Recht Nr. 5 (1998), pp. 146–162; Tanakadate Shokitsu,
A Summary of the Limitations on Administrative Adjudication Under the Japanese
Constitution in Law in Japan Volume 18 (1986), pp. 108–117 with further references.
the other hand, the Japanese style of administration heavily relies

on informal means commonly know in western literature under the
concept of “administrative guidance” ( gyòsei shidò ).52 This discrepancy
causes a considerable gap in the judicial review of administrative
actions. To a limited extent this gap is covered by alternative means
of dispute resolution such as the petition system, ombudsman sys-
tem etc. The still very low figures of suits filed with the courts for
administrative matters indicate that administrative litigation is not
necessarily seen as an effective means of ensuring the protection of
individual rights.53 While the present system of the Administrative
Case Litigation Law is certainly not viewed as being satisfactory by
Japanese commentators, legislative efforts in the 1970s to 1990s were
aimed at other areas of administrative law such as administrative
procedure law and the free access of citizens to information held by
the administration. With new legislation passed in these two areas54
securing ex ante safeguards, time may have come for Japanese law
scholars and legislators to revisit the unfinished issues of ensuring an
effective protection of individual rights against administrative actions
in the framework of the ex post judicial review under the Administrative
Case Litigation Law.
3. Administrative Procedure Law

3.1. Meiji-Period to Prewar Showa Period
a) Rule of Law and the Concept of Administrative Procedure Law

The concept of administrative procedure law under the Meiji
Constitution is closely linked to the then prevailing understanding in
52
Cf. H. Shiono, Verwaltungsrecht und Verwaltungsstil [Administrative Law and
Administrative Style] in Coing (ed.) Die Japanisierung des westlichen Rechts, 1990,
pp. 45–61; Y. Ohashi, Verwaltungsvorschriften und informelles Verwaltungshandeln
[Administrative (Internal) Rules and Informal Administrative Actions] in Verwal-
tungsarchiv Band 82 (1991) pp. 220–245.
53
Cf. for a critical review of court rulings on administrative matters Harada
supra note 39 as well as the special edition of Jurisuto on the Administrative Case
Litigation Law, Jurisuto No. 925 (1989).
54
The Administrative Procedure Act (Gyòsei tetsuzuki-hò ) was enacted in 1993, cf.
below section 3; the Act on Administrative Information Disclosure was enacted in
1999, cf. N. Kadomatsu, The New Administrative Disclosure Law in Japan, in
Zeitschrift für Japanisches Recht, Heft 8 (1999), pp. 34–52.
644 procedural law
Japan of the concept of the rule of law (hòchikoku, Rechtsstaatsprinzip)55

as borrowed from German legal doctrine. Unlike the more proce-
dural orientated rule of law concept prevailing in Anglo-American
administrative law, the continental European, and in particular the
German, approach is less concerned with procedural rules but rather
emphasizes the need for detailed legislation on substantive issues with
the law courts being entrusted with the task of checking whether the
administration has properly applied the laws. Thus the focus is on
an ex post administrative and judicial review of the substantive out-
come of administrative decisions and not so much on the compli-
ance by the administration with procedural rules. While the ex post
administrative adjudication system may not have been sufficiently
developed under the Meiji Constitution to live up to this expecta-
tion, this understanding of the rule of law accounts for the relative
(un-)importance of administrative procedure law under both the
German constitution of 1871 and the Meiji Constitution. To be fair
one should stress two factors which did, however, contribute to safe-
guarding the classic liberal rights of citizens. Under the German but
also Japanese concept of the rule of law, the administration had to
comply with the applicable laws (hòritsu no yù’i, Vorrang des Gesetzes)
and could infringe on the rights of property and freedom of citizens
only if there was a statutory basis for such administrative action
(hòritsu no ryùho, Vorbehalt des Gesetzes).
While, as indicated above, there was no room for a normative
system of administrative procedure law under the Meiji Constitution
and therefore the concept of a “fair procedure” was not to be found,
rules of administrative procedure in a descriptive sense did, how-
ever, play a certain role even if in a rather eclectic way.56 For instance
the Land Expropriation Law, the Tax Revenue Law, the Administrative
Enforcement Law and the Administrative Appeals Law contained a
55
The introduction of the German concept of rule of law (Rechtsstaatsprinzip) and
the coining of the term “hòchikoku” occurred in Japan at a stage when it had been
decided that a constitution would need to be drafted, thus around the 1880’s. In
the subsequent years this term was object of further consideration less among con-
stitutional scholars but rather by administrative law professors, cf. B. Takada, Die
Aufnahme deutscher Rechtstheorien in Japan, in Berberich (ed.), Neue Entwicklungen
im öffentlichen Recht (1979), p. 222 seq.
56
B. Takada, Der Rechtsstaatsgedanke und die Vorstellung vom Verwaltungs-
verfahren, in Verwaltung im Rechtsstaat (Festschrift Cart Hermann Ule), pp. 393,
397.
number of procedural rules which depending on each individual law

dealt with issues such as the addressee, the content of an adminis-
trative disposition, prior hearing of an addressee, public hearing etc.57
An administrative disposition issued in breach of a procedural require-
ment as set forth in the applicable law was illegal since it violated
the principle of the rule of law (hòritsu no yù’i, Vorrang des Gesetzes).
Thus in particular instances administrative dispositions could be
declared void for vice of form.58 However, except for cases where
an administrative disposition was deemed to be void for having been
issued by an authority not competent in the matter or in cases where
the performance of a disposition was legally not feasible, there were
no general standards of administrative procedure governing the
issuance and legality of administrative actions.
b) Developments in Early Showa Period

Although administrative procedural rules remained scarce and scat-
tered in individual statutes until the postwar period, Japanese legal
scholars did take note of developments occurring in the jurisdictions
from which Japan had borrowed so many of its legal principles, i.e.
the enactment of a general Code of Administrative Procedure in
Austria in 1925 and the drafts of an Administrative Law Code in
the German Land Thüringen and an Administrative Procedure Code
in the German Land Württemberg, both of 1931.
However, as Takada points out, the interest of the Japanese schol-
ars in the 1930s was less directed towards the Code of Administrative
Procedure but rather towards the codification of general principles
of (substantive) administrative law akin to the codification of other
areas of law such as the Civil Law Code.59 With the possible exception
of scholarly work by Bin Sonobe one would have to wait until
the postwar period for a deeper understanding of procedural rules
in Japanese administrative law.60 Finally, one should note that the
57
Minobe Tatsukichi, Nihon Gyòsei Hò ( jòkan) [ Japanese Administrative Law
(Volume I)] 1925, pp. 287–289.
58
Minobe supra note 57 at p. 288. Minobe distinguishes between procedural rules
of purely internal relevance and procedural rules meant to protect the rights of cit-
izens. Only the breach of the latter procedural rules are a basis for invalidating an
administrative disposition.
59
Takada supra note 56 at pp. 398–399.
60
Takada supra note 56 at p. 399 with works by Bin Sonobe cited in footnotes
12, 14 and 16. Takada points out that treatises on Japanese administrative law did
646 procedural law
administration itself took no interest in procedural rules and that

there was no case law under the Administrative Court which could
have contributed to developing theories of administrative procedure
law.61
3.2. Post-war Period
a) Occupation Period and Draft of a Government Management Law

Concurrent with the enactment of the Japanese Constitution, American
legal doctrine became the second source of reference for Japanese
administrative law scholars. However, the German influence has con-
tinued to co-exist with this new influence up to date. The American
understanding of the concept of rule of law (in the sense of “hò no
shihai”) gained prominence in the ongoing debates. The American
influence was, however, also more immediate as under SCAP around
twenty independent regulatory agencies (e.g. the Fair Trade Com-
mission, the Central Law Commission etc.) were created. These inde-
pendent regulatory agencies decided on issues in a quasi-judicial
approach and made use of very detailed procedural rules such as
prior notice and hearing, public hearings, reasoning of statement etc.
which were quite a novelty in Japanese administrative law.62 Procedural
rules were furthermore included in the new legislation, not however,
in a general manner in existing statutes. However, as these proce-
dural rules lacked uniformity and consistency they gave rise to crit-
icism from legal scholars.63
The enactment of the Administrative Procedure Act in America
in 1946 and possibly also ensuing recommendations by the Legal
Section under SCAP to the Japanese government may have prompted
it to review the internal management and decision making processes.64
not deal with administrative procedure law as an own subject or chapter until 1965.
The above cited prewar standard textbook of Minobe supra note 57 dealt with rules
of administrative procedure in the chapter on defective administrative dispositions,
i.e. a breach of rules of administrative procedure as being one possible ground for
the invalidation of an administrative disposition.
61
Takahashi Shigeru, Gyòsei tetsuzuki hò [Administrative Procedure Law], 1996,
p. 25.
62
Y. Narita, Verwaltungsverfahrensrecht in Japan, in Verwaltung im Rechtsstaat
(Festschrift Carl Hermann Ule), p. 223, p. 225.
63
Takahashi supra note 61 at p. 26.
64
Haley supra note 10 at pp. 561–563 referring to a meeting of the chief of the
During the occupation period a government commission for drafting

an administrative procedure law was set up with its work culminat-
ing in a draft of a Management of Central Government Administration
Law (Kokka gyòsei un’ei hòan) in 1952. As its name indicates this draft
focused more on organizational than procedural aspects and may as
such still have been under the influence of the prewar quest of cod-
ifying administrative legal rules in general. Yet it did address some
of the basic principles of administrative procedure. As it highlighted
the need for a more uniform and comprehensive approach to admin-
istrative procedure law it did receive praise by a number of Japanese
legal scholars.65 Although the draft was submitted for enactment to
the Diet starting in 1952 it was finally rejected in 1953. The failure
to enact the draft of a Management of Central Government Adminis-
tration Law may be viewed as quite a setback in the development
of administrative procedure law in Japan.66 Although it is not entirely
clear why the draft of a Management of Central Government
Administration Law was not enacted,67 Prof. Shiono has noted that
one of the reasons for its failure may have been a shift in interest
away from the idea of establishing a code of general administrative
rules toward substantive issues and the enactment of laws such as
the State Compensation Law (Kokka baishò hò), the Administrative
Complaint Law (Gyòsei fufuku shinsa hò) and the above mentioned
Administrative Case Litigation Law.68
b) Hashimoto Draft
From the start of the Korean War and during the 1950s Japan expe-
rienced considerable economic growth leading to new administrative
challenges in particular with regard to infrastructure and urbaniza-
tion. In this decade, a number of administrative reforms introduced
under SCAP were revised following the end of the Allied occupa-
tion in 1952. In the early 1960s, with economic growth increasing
Legal Section Oppler with the Attorney General Ueda discussing the need for pro-
cedural safeguards prior to issuing administrative decisions.
65
Takahashi supra note 61 at p. 27 with further reference made in his footnote 8.
66
67
Takahashi supra note 61 at pp. 27–28.
68
Shiono Hiroshi, Gyòsei tetsuzuki hò kenkyùkai hòkoku no kòhyò ni atatte [On the
Occasion of the Publication of the Administrative Procedure Act Study Commission
Report], 810 Jurisuto 42 (1984).
648 procedural law
its momentum, the government felt the need to reconsider in a com-

prehensive manner administrative policies and convened to that pur-
pose in 1962 the First Commission on Inquiry into Administration
(daiichiji rinji gyòsei chòsakai ). As by that time the Administrative Case
Litigation Law and the Administrative Complaint Law dealing with
ex post rules had been enacted, leading scholars called for attention
to be geared towards administrative procedure rules regarding the
ex ante decision making process.69 A subcommittee drafted under its
chairman Hashimoto the first comprehensive draft of an Administrative
Procedure Law in 1964 (the so-called Hashimoto Draft). The Hashi-
moto Draft was with 168 articles not only very detailed but also
rather ambitious in its scope. Besides setting rather strict procedural
standards it also included rules for administrative complaints and
appeals. For these very reasons it was highly regarded by fellow aca-
demics and rejected by the administration.70 The Hashimoto Draft
was at any rate not put on the legislative agenda of the government.
c) Judicial Development of Procedural Standards and Japanese Administrative

Style
In the absence of general rules of administrative procedure until
1993, law courts in Japan have occasionally been called upon by
aggrieved parties to supplement or even establish procedural rights.
A fundamental question confronting the courts is whether one can
deduce procedural rights from the Japanese Constitution – either
specifically from its article 31 or from the concept of the rule of law
enshrined in the constitution – even if the law in question does not
itself provide for any standard. The courts, in particular the Supreme
Court, have been reluctant to infer procedural rights solely based
on an interpretation of constitutional provisions. This can be seen
in two landmark decisions: the Taxicab Case71 of 1965 and the
Gunma Bus Case72 of 1967. In the Taxicab Case the Tokyo Bureau
69
Tanaka Jirò, Gyòsei tetsuzuki no seibi – soganhò no kaizei wo megutte [Regarding
the Preparation of Administrative Procedure and the Revision of the Appeals Law]
in Jichi Kenkyù vol. 35, no. 2, p. 12 seq.
70
71
Kawakami v. Tokyo Land Transportation Bureau, Sup. Ct., Judgement of
Oct. 28, 1965, Minshù 25–7–1037.
72
Gunma Central Bus K.K. v. Minister of Transportation, Sup. Ct., Judgement
of May 29, 1967, Minshù 29–5–662.
of Transportation had apparently established guidelines for choosing

from many applicants the few to be awarded taxi licenses but the
officials in charge had no knowledge of such guidelines, and at any
rate, did not use them and certainly did not mention them to the
applicants. Thus it was impossible for the applicants to prepare and
present their cases adequately at the hearing procedure. While the
court of first instance granted relief by relying upon articles 13 and
31 of the Japanese Constitution, the Supreme Court made no men-
tion at all of the constitutional provisions but relied instead on its
interpretation of the pertaining Road and Transportation Law which
required the administration to ensure a fair procedure when review-
ing applications. In the Gunma Bus Case, which involved the sim-
ilar issue of a denial of an application for a license to operate a new
bus line, the Supreme Court used the same approach of not dis-
cussing any constitutional provisions but instead relying on an inter-
pretation of the pertaining law. Since the Taxicab Case and the
Gunma Bus Case, courts have been extremely reluctant to grant
procedural rights if there is not at least some reference to procedural
standards in the applicable law. These judicial restraints did not con-
tribute to the development of rules of administrative procedure.
The need for rules of administrative procedure was further high-
lighted by the relative weakness of the administrative litigation sys-
tem as described above with its emphasis on formal requirements
for standing.73 This contrasts with informal means of administration
frequently resorted to in Japan as mentioned above.74 While gyòsei
shidò may to a certain extent have some merits both for the admin-
istration and also for an addressee, it has in a procedural sense the
disadvantage of not leading to any open standard verifiable by third
parties. However, as courts are more likely to grant judicial relief if
there is some form of criterion available, enabling it to make a
comparison of cases and bearing in mind that until the enactment
of the Administrative Procedure Law in 1993 there were very few
legal requirements of the administration to set forth such criteria,
the (informal) administrative style and the judicial restraint mutually
73
A point strongly argued by Prof. Shiono who moreover points out that after-
the-fact judicial review, even when granted, cannot always restore the plaintiff to
his position prior to the infringement, Shiono supra note 68 at p. 210.
74
Regarding the concept and impact of administrative guidance (gyòsei shidò ) cf.
supra at note 52.
650 procedural law
reinforced a situation where aggrieved citizens did not find sufficient

means of redress.
d) Inquiry Commissions and Study Groups in the 1970’s and 1980’s

Following the Lockheed bribery scandal, an inquiry commission was
set up by the government in 1976 in order to look into the causes
of the scandal and to suggest measures to clean up politics and
ensure ethical business practices. The inquiry committee included
members from the main ministries, business and the academia, the
latter being represented by Jirò Tanaka.75 Prof. Tanaka, a leading
scholar of administrative law, regretted not having been able to press
the Hashimoto draft further and tried to make up for this by insert-
ing into the final report the need for the codification of a general
law of administrative procedure even though there was no direct link
between the cause of the scandal and the administrative procedure
rules.76 In a political sense this may have been of significant impor-
tance since the general public was made aware for the first time of
the need for such a law and of its link with “political reform”.77
The Japanese government convened in 1981 the Second Commission
on Inquiry into Administration (dainiji rinji gyòsei chòsakai ) prompted
by the urgent need to reduce the public debt and with the aim of
making both the central and local administration more efficient and
responsive. The report of the Second Commission (hereinafter the
“Second Report”) led the government to privatize a considerable
number of publicly held companies and to deregulate large parts of
the Japanese economy throughout the 1980’s.78 With respect to admi-
nistrative procedure the Second Report stressed against the back-
ground of an increasingly complex regulatory surrounding the need
of codification of administrative procedure rules in order to “ensure
75
76
Seki Yùichi, Gyòseitetsuzuki rippò no keii to haikei [Background and Process of the
Legislation of Administrative Procedure Law], Hòritsu Jihò 65–6–55 (May 1993).
77
Ködderitzsch, Japan’s New Administrative Procedure Law: Reasons for its
Enactment and Likely Implications, in 24 Law in Japan 105, 112 (published in
1994).
78
For a detailed description of the work of the Second Commission cf. Gyòseikaiku
no shiten [Aspects of Administrative Reform] in 29 Jurisuto Sògò Tokushù 86–161
(1983). The most notable examples of privatization are NTT, KDD and the Japan
Railways.
a fair and democratic administration and to safeguard the rights and

freedom of the citizens”.79 The Second Report identified the fol-
lowing issues to be addressed in a administrative procedure law: (1)
general rules as to the application of uniform procedural standards,
(2) uniform rules as to hearing procedures, (3) written statement of
reasoning of administrative dispositions, (4) in case of discretionary
acts determination of the guideline in exercising the discretionary
power, and (5) rights of addressees to inspect files and documents.
More or less parallel to the Second Commission, the Administrative
Management Agency (Sòmucho) had set up a study group in 1980
consisting primarily of academics with a view to drafting an admin-
istrative procedure law (daiichi gyòseitetsuzukihò kenkyùkai, hereinafter the
“First Study Group)”. In November 1983 the First Study Group
published a non-official report including a detailed draft of an admin-
istrative procedure law which beyond the items identified in the
Second Report, included detailed rules for establishing land use plans
(tochiryò kisei keikaku seitei tetsuzuki ) similar to planing procedures in
Germany (“Planfeststellungsverfahren”) and procedures for the enactment
of ministerial orders and issuance of administrative rules (meirei seitei
tetsuzuki, i.e. rule making procedures).80 As the members of the First
Study Group were academics striving for an ideal code of administra-
tive procedure it did not receive the endorsement of the government.
In April 1985 the Administrative Management Agency convened
under the chairmanship of Prof. Shiono a Second Study Group
which on the basis of the draft of the First Study Group carried out
extensive hearings with concerned parties in central and local gov-
ernment. Besides reviewing the opinion of the administration com-
prehensive studies of administrative procedure law in European
countries and the United States were carried out.81 The Second Study
Group published its report and draft proposal in October 1989.82
Compared to the draft of the First Study Group it is striking to find
that on the one hand the rules on planning procedures and the
administrative rule making procedures were deleted and that on the
79
Narita supra note 62 at p. 231.
80
Gyòsei tetsuzuki hò kenkyùkai chùkan hòkòku, 810 Jurisuto 42 (1984), translated into
English as Report of the Administrative Procedure Law Study Commission, 19 Law
in Japan 90 (1986).
81
82
Gyòsei tetsuzuki hò kenkyùkai (dainiji) chùkan hòkòku [Report of the (Second)
Administrative Procedure Law Study Commission], 949 Jurisuto 100 (1989).
652 procedural law
other hand rules to ensure a more transparent and fair usage of

administrative guidance were included. These features were eventu-
ally to be found in the Administrative Procedure Law enacted in
1993. The draft proposal of the Second Study Group was, however,
not endorsed by the government for legislation.
e) Process towards Enactment of the 1993 Administrative Procedure Law

During the 1980s significant changes occurred in Japan, both eco-
nomically and politically. The success of Japanese corporations abroad
and deregulation as well as privatization in Japan served as a basis
for Japanese business to emancipate itself from the tutelage of the
administration. At the same time, Japan’s trading partners, in par-
ticular America, came to see the informal and non-transparent style
of Japanese administration as being a major impediment for market
access. Finally, a string of political scandals in that period contributed
to a growing awareness of the electorate that the regulatory set up
was not conducive towards fair and transparent administration. All
these factors prompted the government into action under the slogan
of political reform. Some observers have pointed to the pressure
exerted by the US Government, in particular during the Structural
Impediments discussions in 1992, as a main reason for the enactment
of the Administrative Procedure Law. This would probably overstate
the role of America in shaping Japanese domestic legislation. How-
ever, actors pressing toward the enactment of the Administrative
Procedure Law certainly made good use of American pressure in
order to convince some of the more reluctant members of the Liberal
Democratic Party in having the bill drafted and sent to the Diet.83
The government set up the Third Commission on Administrative
Reform in 1990 with the task of examining ways to improve the
standard of living and to respond to the challenges of internation-
alization. The Administrative Management Agency in its quest for
a new field of action decided to build its political agenda on the
basis of the results of the findings of the Second Study Group with
the legislation of administrative procedure law at its core. Anticipating
opposition from other ministries, in particular the Ministry of Finance
83
Masaki Abe, Foreign Pressure and Legal Innovation in Contemporary Japan:
The Case of the Administrative Procedure Act, in The Proceedings of the 1995
Annual Meeting of the Research Committee on Sociology of Law, II Subtheme F.
and the Ministry of International Trade and Industry, senior civil

servants of the Administrative Management Agency started lobbying
business associations, the media and some members of the Diet. All
this led the government under Prime Minister Kaifu to include the
question of the drafting of an administrative procedure law in the
mission statement of the Third Commission on Administrative
Reform.84 A subcommittee with members drawn from business, admin-
istration, the legal profession and some academics, notably the
spokesperson of the subcommittee Prof. Shiono, drafted an admi-
nistrative procedure law with the firm commitment of seeking its
enactment. Thus, from the outset it necessarily meant compromis-
ing on a number of issues and required to water down the expec-
tations of a number of administrative law scholars, in particular with
respect to elements of participatory democracy and the safeguard of
entitlements. Although parts of the bureaucracy tried to further water
down the draft of the subcommittee on “fair and transparent admin-
istrative procedures” dated December 12, 199185 by pointing out that
the efficiency of the administration would be hampered, the said
draft was finally endorsed by the government. Save for largely tech-
nical modifications by the Administrative Management Agency and
the Legislative Bureau the draft of the subcommittee served as the
basis for the official draft of the Administrative Procedure Law which
was enacted on November 12, 1993 and became applicable as of
October 1, 1994. This marked the end of a long history of endeav-
ors to codify in a comprehensive manner rules of administrative proce-
dure. As there is a substantial body of literature in Japanese,86 English87
84
Seki supra note 76 at p. 43.
85
For a German translation of this draft cf. “Entwurf eines allgemeinen Verwaltungs-
verfahrensgesetz in Japan” in Verwaltungsarchiv 56 ( January 1993) with explana-
tory notes by H. Shiono, id. at p. 45, and by M. Bullinger, id. at p. 65.
86
Takahashi supra note 61, M. Kobayakawa (ed.) Gyòseitetsuzukihò chikujò kenkyù
[Study of the Administrative Procedure Law Section by Section] Jurisuto July 1996;
K. Uga, Gyòseitetsuzukihò no kaisetsu [Interpretation of the Administrative Procedure
Law], 1994; S. Tanakadate, Gyòseitetsuzukihò no kaisetsu to un’yò [Interpretation and
Application of the Administrative Procedure Law], 1996 to name but a few.
87
Ködderitzsch, Japan’s New Administrative Procedure Law: Reasons for its
Enactment and Likely Implications, in 24 Law in Japan 105, 112 (published in
1994). Ken Duck, Now That The Fog Has Lifted: The Impact of Japan’s Adminis-
trative Procedure Law on the Regulation of Industry and Market Governance, 19
Fordham International Law Journal 1686–1763. Incidentally, administrative guid-
ance does not constitute in Japanese legal theory an administrative act because it
654 procedural law
and German88 on the content and the evaluation of the Administrative

Procedure Law a reference thereto shall suffice here.
4. Concluding Remarks
For all the shortcomings in safeguarding citizens’ rights, in particu-

lar under the Meiji Constitution but also to a certain extent with
regard to administrative litigation under the Japanese Constitution,
one witnesses within the span of a little more than 130 years a very
remarkable development of legal doctrine in the area of adminis-
trative law. Considering that the legal concepts and instruments intro-
duced in Japan as of the early Meiji Period did not necessarily match
with her political and social development one should not be sur-
prised to find moments where there may have been some mismatches
and inconsistencies. Having first turned to continental European and
in particular German legal doctrine, Japanese administrative law was
primarily concerned with substantive law as embodied in the con-
cept of administrative dispositions ( gyòsei shobun). The American legal
influence starting from the occupation period has not fundamentally
changed this approach even if an awareness for the importance of
procedural safeguards started to develop. The heavy reliance on infor-
mal means of administration as one striking feature of the Japanese
administrative style has, however, prompted Japan to tackle this prob-
lem through legislative actions in an innovative manner. From hav-
ing to rely on foreign legal doctrine since the early Meiji Period
Japan began – albeit out of pressing necessity – to develop new
approaches which should inspire lawyers in other countries. Having
enacted at long last the Administrative Procedure Law and the
Administrative Information Disclosure Law, the time has now come
for Japan to address the remaining deficiencies with respect to court
litigation of administrative matters.
is unwritten as Ken Duck mentions (at p. 1705) but because it is not legally com-
pulsory and enforceable, even though it may very well in fact be quiet coercive.
For a translation of the Administrative Procedure Law in English cf. M. Lewin, 25
Law in Japan 125.
88
Ködderitzsch, Das neue Verwaltungsverfahrensgesetz in Japan – Versuch einer
ersten Bilanz, in 2 ZJapR pp. 131–137 (1996); for a German translation of the
Administrative Procedure Law cf. Sakurada/Bölicke in 5 ZJapR pp. 169–188
(1998).
law of civil procedure 655
9.2 Law of Civil Procedure1
Wilhelm Röhl
As a matter of course the new regime could not prepare a modern

code of civil procedure straight away. The old system remained as
it was, and the first relevant announcement of the government
reminded the people of the traditional rule that the townsfolk2 were
strictly forbidden to turn to members of the Imperial Court or liege-
men of a samurai with a petition, whether it concerned a lawsuit
or any other, by circumventing the authorities, namely the compe-
tent adjudging office; the right way being to apply to the authori-
ties (decree of 14 January 1868).
At first, the administration of the domains was responsible for
the judicature. The central government had control over the bakufu-
owned domains—about a quarter of the Japanese territory—which
it reorganized into prefectures = nine fu (cities) and fifteen ken
(provinces). Formerly the bakufu was competent to give a judgement
if a lawsuit extended over two or more domains, and the involved
domains did not reach an agreement on the competence, and the
dispute could not be determined without examination of the plaintiff
and defendant together. As the number of prefectures increased due
to the growing power of the new government, and also the number
of lawsuits between the domains and prefectures grew larger, it was
decreed in July 1869 that such cases were to be sent to the Department
of Civil Affairs (Minbukan 1868–1869, Minbushò 1869–1871) for
judgement.3
1
Principal sources: Ryòsuke Ishii, Meiji bunkashi, 2, Hòseihen (Cultural History of
the Meiji Era, vol. 2; Legal System, 1954, p. 232 et seqq., 413 et seqq.; translated
by William J. Chambliss, Japanese Legislation in the Meiji Era, 1958, p. 295 et
seqq., 490 et seqq. Kameichi Hosokawa, Nihon kindai hòseishi (Modern Japanese
Legal History, 1961, p. 316 et seqq. Hòsòkai ( Jurists’ Association) ed., Shihòenkakushi
(A History of Justice), 1939, passim.—For the earlier procedure see Dan F. Henderson,
Contract Practices in Tokugawa Japan, in International Encyclopedia of Comparative
Law, vol. VII chapter 6 ‘Contract in the Far East—China and Japan’, div. B (1992),
pp. 6–3 et seqq. with many notes on literature.
2
Craftsmen and tradesmen in contrast to the samurai and farmers in the social
order.
3
That department or ministry was combined with the Finance Department/Ministry
insofar as one minister and one vice-minister were in charge of both depart-
ments/ministries.
656 procedural law
New ‘Rules for the Adjudication of Litigation Involving Different

Prefectures and/or Domains’ (Fuhanken kòshò soshò junban kitei ) were
issued on 18 January 1871. They consisted of 22 articles and included
more than the title indicated. One can say that they were a first,
admittedly tiny, code of civil procedure that, in general, kept up pre-
modern rules. In August of the same year the Rules were revised
and shortened to 15 articles but not changed in essence. The Rules
dealt with the following items:
Principally, the local authority that had jurisdiction over the defendant
was responsible for handling the case and deciding the dispute. Even
if the parties to the suit lived in different prefectures both had to
appear before the said authority. But in cases concerning dykes, water
for irrigation, water pollution, drainage ditches, fields, boundaries of
villages, towns or forests and these extended over at least two areas
of jurisdiction the local authority of the plaintiff, as nearest to the con-
tentious situation, was responsible; it had to submit a draft of the judge-
ment to the Department of Civil Affairs for final decision. There existed
some other special rules about responsible offices.
Detailed instructions regulated the way of filing a claim and serving
it on the other party, the deadline for the reply in writing and—
most important—the official stamp on the petition. In the case of
an ex-samurai the stamp of the chief of the relevant authority, in
the case of a commoner the stamp of the head or elder of the vil-
lage or ward was required. Stamping the document did not mean
approval or support but identification of the petitioner and cog-
nizance of the quarrel. The persons entrusted with stamping had the
duty to urge the parties to settle the dispute and avoid legal action;
stamping also meant that their endeavour had been unsuccessful.
Petitions without the stamp were not admitted. The stamp was
required on other documents sent to the adjudication office by the
plaintiff and the defendant, too. A traditional procedure, now con-
tinued, was the preliminary examination of the petition which con-
cerned a contractual obligation (meyasu tadashi ). A clerk of the office
checked formal aspects such as the name, identity and residence of
the plaintiff and defendant, and the classification of the cause of
action in the formulary system (kujimei ).4 The classification depended
4
Since 1767 there were official lists of usual legal transactions that were litiga-
ble. The suits arising from such transactions were divided into main suits (honkuji )
and money suits (kanekuji ) with different procedural handling. For details see Kingo
on the contract document itself, therefore that document was exam-

ined not only with regard to formal requirements but also materially
insofar as the petition had to correspond to one of the classified actions.
The preliminary examination of the petition was carried out with-
out the participation or even knowledge of the defendant. If the peti-
tion was admissible a copy was sent to the defendant via his responsible
office, and he was ordered to submit a written reply within a cer-
tain time, usually ten days. Then the adjudicating officer 5 heard the
case. Both parties were summoned to the hearing together with their
attendants.6 If a second hearing was necessary a junior officer could
take the place of the adjudicating officer and examine witnesses and
other proof. Worth mentioning is the fact that the Rules did not
deal with the duties of the ‘judge’. However, the supervisory author-
ity attached importance to expeditious procedure; if the lawsuit was
intricate and the judgement could not be pronounced within 100
days the case had to be referred to the Department of Civil Affairs
for decision.
Kobayakawa, Kinsei minji soshò seido no kenkyù (Study of the Civil Procedure System
in the Recent Era), 1957, passim. Ryòsuke Ishii, Edo jidai manpitsu (Miscellany on
the Edo Era), 1961, p. 130 et seq. Dan F. Henderson, loc. cit. (note 1).
5
The term ‘judge’ or ‘court’ should be avoided since the judicature rested with
the administration. Therefore, the words ‘adjudicating officer’ and ‘-office’ are the
proper ones.
6
Attendant (aid or helper) = sashizoenin, tsukizoenin or kaizoenin.
(i) Persons who were unfit to plead owing to old age, illness or minority and also
women whose fitness to plead was generally limited were assisted by a guardian ad
litem who helped them in litigation and, should the situation arise, accompanied
them to court.
(ii) To this original meaning of a sashizoenin whose support served the litigant
exclusively and who has a successor in the form of the assistant (hosanin) under art.
88 of the present Code of Civil Procedure, K. Kobayakawa, loc. cit., examining
pre-Meiji documents, adds the interpretation that the term ‘attendant’ (sashizoenin
etc.) also meant a person who actually did not help the litigant nor plead in favour
of him. This ‘helper’ no longer exists and there are no traces of him in the pre-
sent legal system. He was a procedurally necessary helper and often identical with
the official who had tried in vain to get the parties to settle the dispute and, by
stamping the petition, had made it possible for the plaintiff to go to law. The same
went for the defendant whose answer was stamped by the proper local authority.
This interpretation, concluded from the use of the term ‘attendant’ in cases which
did not concern litigants under a disability, illuminates the fact that at that time,
generally, an individual was not free to take legal action but also in this respect
the authorities and the five-family-neighbourhood unit ( goningumi ) the head of which
could act as ‘helper’ kept always and everywhere an eye on the subjects’ way of
living. This type of sashizoenin did not help but control. For details see K. Kobayakawa
(note 4) at 419 et seq. and passim.—The ‘attendant’ did not have the function of
an attorney/lawyer.
658 procedural law
The parties to the suit were obliged jointly to state in writing that
the judgement had come to their knowledge.7 That rule was repealed
in 1873.8 Henceforth the parties got a copy of the written judge-
ment, officially sealed, and had to confirm the receipt. The judge-
ment in a case concerning boundaries was written down upon the
reverse of the survey. The new practice was the start of the modern
way of delivery of a document by the court.
About 1872 elements of present-day procedure began to appear.
On 9 April 1872 the Ministry of Justice informed the Central Chamber
(sei’in) of the dajòkan that there were no fixed regulations for the civil
procedure, that, as a matter of course, the process differed in the
prefectures, and that therefore a decree about the main points of
civil procedure was desirable. The Ministry submitted a draft of
‘Rules for Plaintiffs and Defendants’ (Genkoku hikoku jòrei ) and asked
for examination and rapid decision. But it came to nothing. When
the vigorous Shinpei Etò became the Minister of Justice on 2 June
1872, some progress was made.
An ordinance of the Ministry of Justice of 9 September 1872 did
away with some established usages, such as mixing civil and crimi-
nal instances or punishing parties to a lawsuit or witnesses for fail-
ure to appear, or other failings. Moreover, it was decreed that the
parties involved in litigation were to be treated kindly and under-
standingly. Thereby the position of the citizen in court was improved.
The setting of the trial too was changed. In the early Meiji era the
old venue was maintained: the places of trial were not separated
according to civil and criminal trials. In the case of commoners the
litigants sat outdoors in a yard, the floor of which was spread with
white sand, in front of the office (shirasu), while the adjucating officers
were placed on the veranda of the building. In the case of persons
of the sixth court rank or higher the trial was held in a room. On
10 November 1872 the Ministry of Justice, pursuant to the equality
of all men before the law, abolished the discrimination resulting from
the sand bar and had the commoners treated as equivalent to the
7
A premodern rule. The judgement was given orally and the parties wrote it
down, acknowledged the receipt of it and added their stamps. That document (saikyo
uke-shòmon) the text of which the parties promised not to dispute hereafter was
handed over to the office; it replaced the copy of the judgement. K. Kobayakawa
(note 4) at 473–475. R. Ishii (note 4) at 138.
8
Order no. 185 of the Ministry of Justice of 27 February.
nobles and the people of samurai descent. Those orders meant the
rejection of the idea that the administration of justice was an author-
itarian act of mercy.
The preliminary examination of the petition became the duty of
the adjudicating officer himself. If he opined that the petition was
not admissible he had to state the reason in writing and return this
decision together with the petition to the plaintiff. The preliminary
examination was done away with by a decree of the Ministry of
Justice of 5 April 1877, except petitions to the Supreme Court.
Another progressive ministerial decree of 28 December 1872 per-
mitted any citizen to take legal action if a regional officer or a vil-
lage headman had issued an order or taken a measure contrary to
an edict ( fukoku) of the dajòkan or a decree ( futatsu) of a ministry.
A remarkable step towards a systematic procedure was an ordi-
nance of 17 July 1873 concerning samples and forms of petition and
answers (sotò henrei oyobi shikiyò ). The ordinance was divided into two
chapters. Chapter 1 dealt with the written claim and consisted of
ten sections which regulated the following details:
– If the plaintiff did not know particulars of the name, address or
standing of the defendant he had, with a letter of introduction
from his local office, to apply for a certificate of those particulars
from the proper authority of the defendant.
– Then the plaintiff could have a scribe (daishonin)9 to draft the peti-
tion. The service of a scribe was obligatory but became optional
from 1874.
– In that respect five rules were to be observed:
(i) The wording had to be short and clear, describe a case capa-
ble of being proved, without literary embellishment and not
blurred by individual fantasy.
(ii) The petition had to begin with the names, addresses and
standing of the plaintiff and the defendant. At the end, the date
and the stamps of the plaintiff and the scribe had to be added.
(iii) The plaintiff himself had to sign the petition. If he was unable
to do so this had to be noted next to his name written down
in full.
(iv) The petition should contain 16 lines of 15 symbols (characters
and syllables) each; the original and the copy had to be filed.
9
See chapter ‘The Lawyer’.
660 procedural law
(v) If the domicile of the defendant was more than 8 ri (= 19,5

miles) away from the court to which the petition was sub-
mitted the distance had to be noted at the left next to the
name of the defendant.10
– Section 4 dealt with the various types of lawsuits and the respec-
tive forms of petitions: arrears in the case of loan of rice or money,
in the case of rice or money on deposit; arrears of purchase price;
claims deriving from transactions among commercial enterprises,
from breach of contract following payment in advance; back pay
for manufacture, breach of service contract; infringement of patent;
divorce; dissolution of adoption; concerning succession as the head
of a family; concerning fields, forests, boundaries; appeal.
– By one legal action a plaintiff could lodge only one case,
– but under section 6 there were exceptions to that principle.
– Sections 7 and 8 provided that in specific cases several creditors
jointly could take legal action and that several debtors jointly could
be taken to court.
– The claim which was based on a deed of transfer was the object
of section 9.
– Finally, there were rules governing the activity of advocates.
Chapter 2 of the ordinance consisted of rules for the answer and
contained twelve sections. Apart from such formal aspects as out-
ward appearance, services of scribes and advocates, there were some
clauses that allow a look at juristic features of that time, as could
also be gathered from the list of lawsuits in chapter 1.
Special instructions were laid down concerning the following
particulars:
– Answer to an action regarding the possession of a return deed.11
– Answer if the plaintiff is breaking his promise to postpone pay-
ment.
– Answer if the plaintiff ’s document of evidence had been forged.
– Answer if the plaintiff brought together a pending action with a
new one.
10
The distance produced an effect on the deadline for the answer.
11
By the return deed the debtor was entitled to demand of the creditor the
return of the security if the debt had been paid off on time. E.g. in the case of
borrowing, the security was constructed as sale and buy-back. The effect of that
transaction corresponded to the English equitable lien or the German Sicherungs-
übereignung.
– Answer if prior to the confrontation of the parties a discussion

had resulted in an agreement on the withdrawal of the suit.
– Other clauses dealt with the situation of a relative or friend hav-
ing promised vicarious compensation and thereupon the suit hav-
ing been withdrawn or a corresponding contract having been made,
in both cases prior to the confrontation of the parties.
Some items of those rules may attract the reader’s primary attention:
(i) The ordinance apparently followed the old method not to cre-
ate a conceptional system but to respond to occurrences that need
to be regulated.
(ii) The importance of documents came from the generally valid
recognition that a document, if genuine and in proper form, is the
best proof.
(iii) The confrontation of the parties at the hearing in court was
a significant stage of the procedure. Principally, the procedure was
an oral one. Written pleading served to prepare the confrontation.
By the written claim and answer the parties fixed their allegations
and, if the adjudicating officer did not enquire about other subjects,
they were not allowed to introduce new facts.12 Therefore, promises
and agreements about postponement of payment or withdrawal of
the suit were considered only if they had been made prior to the
confrontation. The notion may be the same as that of the rule to
hear the case in chambers with no member of the public being pre-
sent, a pre-modern rule which was in force also in the early years
of Meiji. That notion was that the procedure was initiated by the
plaintiff, a private individual, but became a matter of the authority
as soon as the parties had submitted allegations. From then the case
was in the hands of the adjudicating officer and the litigation was
transformed into an affair of the decision-making administration. The
civil procedure was regarded as ‘a procedure concerning a judge-
ment from above on the suit’ while in western legal systems the civil
procedure is ‘a procedure concerning a petition from below (= the
parties to the suit) for judgement on a dispute’.13 The difference is evi-
dent: in a procedure ‘from above’ the authority can demand com-
plete and concise pleadings without further ado,14 and an administrative
12
K. Kobayakawa (note 4) at 363.
13
K. Kobayakawa (note 4) at 365.
14
In order to speed up the procedure measures of this kind are nowadays taken
by law elsewhere too.
662 procedural law
decision is prepared and made at the desk in the office separated

from the public.
No sooner than a few years after the restoration the government
attended to the right of appeal ( jòsoken). Under the bakufu govern-
ment there existed a high judicial council (hyòjòsho), but a regular
system of appeal against adjudicating acts of the administration was
lacking. The Emperor’s Charter Oath of 6 April 1868 proclaimed
that all matters would be determined by public opinion. That was
a first step on the long road to recognition of the subjects as part
of the state. Subsequently, the connection between citizen and exec-
utive became somewhat freer. In November 1871 the Ministry of
Justice issued regulations concerning suits against prefectural offices,
and detailed provisions on administrative actions followed on 28
December 1872. The lawsuit could be submitted to the district court,
and if an individual disapproved of the decision rendered by the
prefectural court15 the action could be taken to the Justice Ministry
Court (Shihòshò saibansho). When that court, the function of which is
described in the chapter ‘The Lawcourts’, was founded on 5 September
1872 there were no rules on civil procedure, especially appeal. ‘Brief
Regulations for the Appeal in Civil Cases’ (Minji kòso ryakusoku) were
issued on 19 May 1874. Appeal could be lodged within three months.
A decision of the Justice Ministry Court as the court of the first
instance could be challenged by appeal to the Justice Ministry Court
Extraordinary (Shihòshò rinji saibansho).
The ‘Brief Regulations’ were repealed on 24 May 1875 shortly
after the establishment of the Supreme Court (Daishin’in or Taishin’in)
and the high courts. Now, rules for appeal and re-appeal were issued.
‘Appeal’ (kòso) was the application for re-trial in the high court when
one or both parties disagreed with a prefectural court decision; it
was admissible only in civil actions. When the court of the first
instance had given the judgement the disagreeing party had to wait
seven days before the appeal could be filed. So, the party was forced
to ‘sleep on the matter’ several times in order that an ill-considered
appeal might be prevented. If, however, in a commercial case the
appeal was urgent it might be filed within the period of considera-
tion. When seven days had expired the appeal could be submitted
15
Or a prefectural office if no lawcourt existed in the region.
within three months from the date of the judgement. Thereafter the
appeal was inadmissible, but if the high court was more than 8 ri
(= 19,5 miles) away one additional day was conceded for every other
8 ri. The high court could confirm the first court’s decision or reverse
it and send the case back to the first instance or decide by itself.
If a court lower than the court of the last instance had made a
mistake in applying the law either party could, by way of re-appeal,
ask the Supreme Court to reverse the decision. The re-appeal, the
proper recourse in criminal cases too, could be backed up only by
the following circumstances: (i) the court had gone beyond its com-
petence, (ii) it had infringed procedural provisions or (iii) violated
substantive law. The re-appeal had to be filed within two months;
allowances were made for great distance to the same extent as in
the case of appeal. The Supreme Court could reject the re-appeal
or reverse the decision challenged, and then decide by itself or send
the case back to a different high court.
The procedure in the second and third instance has been described
in detail by Ryòsuke Ishii.16 Since the rules, in the main, concerned
technicalities and deadlines and there are no remarkable peculiari-
ties worth mentioning we need not repeat them.
If a debtor who had lost his case in court failed to pay his debt
within the time ordered by the court he was declared bankrupt upon
application of the creditor. Bankruptcy (shindaikagiri ) was an old legal
institution, somewhat different from the bankruptcy of today. That
procedure could be opened only as the consequence and served the
forcible execution of the judgement if the debtor did not pay. The
object of the execution was the property of the debtor.17 Originally,
following the order of the court, the debtor had, in the presence of
16
R. Ishii (note 1) at 249 et seq.; W.J. Chambliss (note 1) at 312 et seq. The
Supreme Court was patterned after France’s Cour de Cassation, Ishii/Chambliss,
loc. cit. at 222 and 285 respectively.—An apparent error of the translator should
be touched upon, Chambliss at 314. The head of the civil court section had to
appoint not a presiding judge (the head himself was the presiding judge) but among
the judges of the section a ‘special member in charge’ (senri’in) whose duty was to
prepare the case for deliberation, to report the facts and legal arguments to the
other judges of the section, and to write down the judgement agreed upon by the
judges after the hearing. It was he who read the case aloud in the courtroom on
the day of the hearing. In 1877 the senri’in was renamed shunin (person in charge);
R. Ishii, loc. cit. at 251.
17
Shindaikagiri means ‘limited to the assets’, there was no confinement in a debtors’
prison.
664 procedural law
a local officer, to make over his field, house, household utensils and
effects etc. to the value of the debt to the creditor. Later, the pro-
cedure war changed: the assets were sold and the creditor received
the money.18
The Meiji government took over that system but modified it by
several ordinances. First, on 28 July 1872 the Bankruptcy Regulations
for Peers, Ex-samurai and Commoners (Ka-shi-zoku heimin shindaikagiri
kisoku) were promulgated. They listed items that were exempt from
seizure, e.g. clothing, bedding, enough rice to feed the debtor’s fam-
ily for one month, cooking utensils, indispensable vocational things
and some additional items for peers and ex-samurai, e.g. robe, sword.19
Similar regulations ruled the execution of a judgement if the losing
party was a Buddhist priest (Sòryo shindaikagiri kisoku of 6 March 1873).
Other ordinances regulated or modified and amended the conditions
of shindaikagiri, with the result that the law of forcible execution was
composed of scattered regulations20 until the Commercial Law and
the Code of Civil Procedure of 1890 arranged the mercantile bank-
ruptcy and the forcible execution.
Back to litigation:
General principles of adjudication were set down by decree of the
dajòkan of 8 June 1875: ‘Rules for the Conduct of Court Affairs’
(Saiban jimu kokoroe), art. 3 of which has been dealt with in chapter
‘The Courts of Law’.21 The complete text of the decree was:
18
While shindaikagiri was an official way to execute a judgement in a particular
case another method led to an arrangement with several creditors at the same time.
As a rule the debtor could, with the consent of all his creditors or the large major-
ity of them, voluntarily abandon his whole property which was taken over by the
partaking creditors in order to auction the assets and distribute the proceeds pro
rata, remaining debts becoming due if the debtor one day should be able to pay.
That system (bunsan) was a kind of contract and no creditor was obliged to join in.
For the time being the two systems continued to exist but often got confused.
Under the (first) Commercial Law of 1890 the mercantile bankruptcy was called
hasan, bankruptcies of non-traders were regulated by the Law of Insolvency (Kaji
bunsan hò = Law for Household Distribution) of the same year. Under art. 384 of
the Bankruptcy Law (Hasanhò) of 1922 the Law of Insolvency was repealed and
from then the Bankruptcy Law applied to every bankruptcy.
19
For details see Ishii/Chambliss (note 1) at 252 and 316 respectively.
20
Their number amounted to 17 in 1888; Otto Rudorff, Die Rechtspflege in
Japan in der gegenwärtigen Periode (Meiji) (The Japanese Legal System in the
Present Era (Meiji), in Mitteilungen der Deutschen Gesellschaft für Natur- und
Völkerkunde Ostasiens (Reports of the German Society for Natural History and
Ethnology of East Asia), Tokyo 1888, p. 438 note 71.
21
Page 731.
1. Each court shall try both civil and criminal cases according to
law and without delay, and no court shall suspend trial and appeal
to a higher court on the grounds that a case is too complicated
and open to doubt. However, this does not apply to cases involv-
ing sentences of capital punishment and forced labour for life.
2. When application is made to disapprove a judgement, it is not
necessary to be justified in court; the court shall simply announce
that the appeal or re-appeal shall be filed within a prescribed
period according to established rules.
3. Judgement of civil cases shall be rendered according to custom
in the absence of law; and in the absence of custom they shall
be decided according to reason.
4. Pronouncements rendered by judges shall not act in the future
with the binding power of ordinary established rules.
5. With the exception of promulgated decrees and notifications, the
directives issued by the offices of the central government shall not
act in the future as ordinary established rules of authority for the
courts.22
For the first time, there was mention of the duty of the judges to
decide the cases lodged with the court. Thereby, the old rule that
the court could or had to send difficult, doubtful and specific cases
to a higher adjudicating authority23 became obsolete and the respon-
sibility, self-confidence and esteem of the judiciary was strengthened.
In civil conflicts an amicable agreement was always regarded as
the best way of settling, for which the parties and mediators had to
strive at all costs. Even if the quarrel had developed into a lawsuit
the adjudicating authority urged the parties at any stage of the pro-
cedure to bring the dispute to an end amicably.24 The Meiji gov-
ernment supported that tendency and cared for rules for the procedure
and jurisdiction by virtue of which the people were informed about
the way to the helping court. Under the order no. 66 of the Ministry
of Justice dated 27 September 1876 the thereby established local
courts were authorized to deal with mediation (kankai ). The three
22
Translation by W.J. Chambliss (note 1) at 307.
23
See chapter ‘The Courts of Law’ pp. 714, 716, 720.
24
Settling a dispute before an official judgement was a custom from old times.
The practice in actual cases and the legal method and significance as well as the
word for the settlement were somewhat different from time to time and from region
to region, but the principle was ubiquitous.
666 procedural law
branch offices of the Tokyo Court had been similarly authorized on

8 September 1875.25 Initially, the details were (i) when an applicant
asked for mediation in a civil case the court had to deal with it
regardless of the amount of money or the relative importance of the
claim. (ii) The applicant need not submit a written petition, he only
had to appear at court and state the details of his case. (iii) Whether
or not both parties jointly asked for mediation was of no conse-
quence but it was essential that the litigant desirous of a private set-
tlement present the petition in person. If he was ill or there were
unavoidable circumstances preventing him from appearing he could
send a relative or an employee as a proxy. (iv) Mediation was not
necessarily bound by fixed provisions; but litigants who were tardy
or failed to attend mediation proceedings could be punished accord-
ing to regulations.
In December 1875 the Ministry of Justice dispatched the rules of
mediation proceedings as meanwhile practised by the Tokyo Court
to all prefectural courts in order to inform them about the proper
method of mediation. The plaintiff who wished to make peace had
A few pertinent comments should be made on the words. In Japanese there are
several terms for amicable settlement. Before the restoration the words naisai (Chambliss
(note 1) at 308 reads naizumi ), wayo, atsukai were in use. The expressions after 1868
in English translation have been defined by T. Kawashima, Dispute Resolution in
Contemporary Japan, in A.T. von Mehren, Law in Japan—The Legal Order in
a Changing Society, 1963, pp. 50–57:
– ‘Reconcilement’ and ‘conciliation’ mean the process by which parties to the dis-
pute confer with each other and reach a point at which they can come to terms
and restore or create harmonious relationships. Reconcilement is usually achieved
with the help of a prominent member of the social group to which either party
belongs. Conciliation is reconcilement through an outsider. Both events were
extrajudicial arrangements.
– In ‘mediation’ a third party offers his good offices to help the others reach an
agreement. The word is used as a legal term; the mediator is the lawcourt or a
special institution under law.
– ‘Arbitration’ is a stronger form of mediation insofar as the mediator is autho-
rized to decide like a lawcourt.
The term kankai was used from the early Meiji era as a legal court procedure pre-
ferred prior to a regular judicial proceeding. According to the abovementioned
definition it should be translated ‘mediation’. A statistic shows that over a period
of ten years in the eighties the kankai cases were five times more numerous than
the ordinary lawsuits (A.T. von Mehren, loc. cit. at 66, table 10). Kankai became
obsolete when the Code of Civil Procedure came into force. It was introduced anew
after World War I and renamed chòtei, see below.—In this chapter kankai and chòtei
are translated ‘mediation’.
25
Shihòenkakushi (note 1) at 31.
to use an application form which was registered and numbered. Then

the applicant was heard by an assistant judge (hanjiho) who sum-
moned the parties to appear within three days. If both parties fol-
lowed the summons and assented to mediation they were ordered
to produce a jointly stamped statement of postponement or with-
drawal of the suit. If there was no agreement this result was certified
on the application form. If both parties appeared the settlement could
be announced right away. During the mediation proceedings a set-
tlement could be agreed on by the debtor and all of his creditors
by means of distribution of the debtor’s property.
While in the pre-Meiji era the litigants had been wellnigh forced
to settle the dispute harmoniously instead of requesting the decision
of an adjudicating authority the new order, under which there was
no mediation unless the litigant asked for it, relaxed the adminis-
trative control even over private disputes, left the action to the liti-
gant, and finally resulted in mediation becoming an independent
legal process.
Under a ministerial order of October 1876 the court had to give
the claimant a certificate of non-completion of mediation if it had
not been successful; when the claimant took action anew he had to
produce the certificate.
On 24 June 1884 the Ministry of Justice issued ‘Outlines of
Mediation’26 (Kankai ryakusoku). In each peace court two assistant judges
(hanjiho)27 were put in charge of mediation, and only these were
authorized to handle the mediation cases.
This early mediation system of the Meiji era was influenced by
French law. The Code of Civil Procedure, in force from 1 January
1891, was modelled after the corresponding German law. But the
Code did not adopt the German rule of that time that the local
court, when being engaged on a civil case, first of all had to attempt
to bring the litigants to terms. Under the Japanese Code of Civil
Procedure a party could ask the local court for mediation, art. 356.
The applicant had to submit a written petition which was to be for-
mulated like a legal action: the claim and its substance and cause
as well as the state of affairs had to be described, but litigation was
26
W.J. Chambliss (note 1) at 492 calls them ‘General Regulations for Mediation’.
27
R. Ishii (note 1) at 415 and K. Hosokawa (note 1) at 327. H. Suekawa (ed.),
Minji hògaku jiten (Dictionary of Civil Law), vol. 2, 1955, headword Minji chòtei hò
(Civil Mediation Law), says: one judge and one man of local reputation.
668 procedural law
not yet established thereby. The judge fixed a date for peacemak-
ing in court. If the parties agreed on a settlement28 the result was
put on record. If both parties appeared and a settlement could not
be achieved, at the request of both of them immediate pleadings
were ordered; in this case the petition was regarded as taking legal
action and the commencement of the lawsuit. As a matter of course,
a friendly settlement was attainable during the process as well, and
the court was required at any stage of the litigation to try to per-
suade the parties to settle the dispute, art. 136.
Apart from that the Code of Civil Procedure regulated the arbi-
tration procedure, art. 786 et seq. The old kankai procedure was no
longer in use.
The further development of the mediation system was advanced
when after World War I tenants of land, houses and farms, due to
the general economic situation, got into difficulties. Mediation, now
called chòtei, gained considerably in importance and special laws were
aimed at improving the conditions of distressed people in need of
protection. On 12 April 1922 the Leased Land and Leased House
Mediation Law (Shakuchi shakuya chòtei hò ) was promulgated. One year
before, the Leased Land Law (Shakuchihò ) and the Leased House Law
(Shakuyahò ) had been issued, which by limiting the rights of the land-
and house owners sought to strengthen the legal position of the ten-
ants. Disputes between owners and tenants had increased and the
Leased Land and Leased House Mediation Law served to mitigate
the strained situation. The party to the dispute could ask the local
court (by mutual agreement: the district court) for mediation. The
judge fixed a date for the hearing and summoned the parties and
persons interested, if any. The court was authorized to install a medi-
ation committee consisting of one judge and two members of spe-
cial knowledge and experience; they were appointed by the president
of the court yearly in advance. At the request of both parties the
committee had to go into action. The procedure of mediation lay
within the responsibility of the judge in charge; it was similar to
ordinary litigation. If no settlement was reached, the committee deter-
mined the clauses of a compromise with respect to the subject mat-
ter and the costs of the procedure, and sent the protocol thereof to
28
Kisomae no wakai = amicable settlement before taking legal action, or sokketsu
wakai = prompt settlement.
the parties who were regarded as consenting if none of them objected

within one month. An amicable agreement or the accepted decision
of the committee was subject to the approval of the court. The
approval could not be contested, the disapproval could be appealed
against by means of immediate complaint according to the provi-
sions of the Code of Civil Procedure. The amicable agreement and
the aforementioned approval of the court had the same effect as a
settlement between litigants in court (wakai ).
The Leased Land and Leased House Mediation Law became the
model for subsequent mediation laws such as the Tenant Farming
Mediation Law (Kosaku chòtei hò ) of 22 July 1924, Commercial Media-
tion Law (Shòji chòtei hò ) of 30 March 1926, Labour Dispute Mediation
Law (Ròdò sògi chòtei hò ) of 9 April 1926, Provisional Law on Monetary
Indebtness Mediation (Kinsen saimu rinji chòtei hò ) of 7 September 1932,
Family Mediation Law ( Jinji chòtei hò ) of 17 March 1939, and the
provisions for mediation in case of compensation for damage caused
by mining (kògai baishò chòtei kitei, chapter 5 of the Mining Law of
1905, amended by law no. 23 of 23 March 1939). During World
War II the Wartime Special Civil Law (Senji minji tokubetsu hò ) of 24
February 1942, chapter 4 arts. 14–19, extended chòtei to all civil
cases and authorized the court which had accepted a suit to order
mediation procedure ex officio, in which case the judge in charge
was assigned to conduct the proceedings, and declared substantial
parts of the foregoing mediation laws applicable. When, immediately
after the war, this law was repealed chapter 4 remained unaffected
(law no. 46 of 1945) until the Civil Mediation Law (Minji chòtei hò )
came into force on 1 October 1951.29 This law repeated most of
the previous regulations. The wartime rule that the court could order
mediation ex officio, in the case of a party having already taken
legal action, was modified: when the arrangement of the issues and
proof had been completed mediation could be instituted only with
the consent of the parties.
Mediation in family matters under the Law for Adjustment of
Domestic Relations (Kaji shinpan hò ) of 1947 took the place of the
Family Mediation Law. The new Mining Law (Kògyòhò) of 20 December
29
Also the mediation laws on leased land and house, tenant farming, commer-
cial cases and monetary indebtness were repealed, arts. 2 and 4 of the additional
rules to the Civil Mediation Law.
670 procedural law
1950 made provision for mediation by a committee at the Ministry

of International Trade and Industry, arts. 122–125.
Apart from some additions and amendments of minor importance,
the early provisions regulating the civil procedure remained unchanged
until 1 January 1891 when the Code of Civil Procedure (Minji soshò
hò ) came into force.
Since in the seventies efforts toward the compilation of a code of
procedure modelled after the French code had failed to become law
in Japan the government engaged Hermann Techow (1838–1909),
a Prussian provincial councillor and put him to work on a code of
civil procedure. He began work in May 1884 and, in contact with
a Japanese committee, completed the entire draft early in 1885. After
examination and deliberation by another committee Techow pre-
sented his draft to Justice Minister Akiyoshi Yamada in June 1886.
Techow had modelled his first draft after the German Code of
Civil Procedure of 1877 and consulted the regulations of Prussia,
Württemberg, and Austria, and in addition French, English and
American legal concepts. The final draft contained a number of alter-
ations made by the committees. This draft was printed and distrib-
uted to the courts; the Ministry left the use even of the draft to the
courts’ discretion provided that no currently ruling provisions were
standing in the way. Techow had added a preface wherein he stated
that he had preserved those components that must be preserved
because of their deep roots within the Japanese perception of law,
or their having proved in practice to be worth preserving. In this
direction, he wrote, the codification of the present Japanese law of
procedure was the basis of the work which was rooted in national
ground.30
30
Otto Rudorff, a colleague of Techow and writer of the first draft of the
Japanese Law for the Constitution of the Courts, said in a lecture on 30 June 1890
that he had read Techow’s draft and found a very large degree of correspondence
with the German code but only two or three instances, if any, of old Japanese view:
‘Die neueste Justizgesetzgebung Japans’ (The Recent Japanese Legislation on the
Judicial System), in ‘Mitteilungen etc.’ (note 20) vol. 5 (1890), pp. 215–216. The
author of this chapter having studied the draft in the German version cannot but
confirm that conclusion. Examples of accustomed features were the elongation of
terms depending on the distance from the party’s place of residence to the court
(one day per 8 ri ) and, in case of compulsory execution, the auction sale of immov-
ables by bids in writing (tender, nyùsatsu) if an interested person asked for this pro-
cedure or the court ordered it ex officio instead of oral offers in open court, artt.
702–705 Code of Civil Procedure. The tender system applied to the auction under
the Civil Code (Minpò ) too: Auction Law (Keibaihò, also read Kyòbaihò ) of 21 June
That is hardly comprehensible. The draft and the finally eme-

nating Code of Civil Procedure, promulgated on 21 April 1890, bore
undeniably a strong resemblance to the German code. There were
but a few differences with regard to the order of the contents: the
German code was subdivided into ten books, the Japanese code con-
sisted of eight books; one book (concerning matrimonial cases and
cases of incapacitation) was omitted and its contents regulated else-
where, and the rules of another book (concerning the summary pro-
cedure in the local court) were inserted in Book II.
Book I ‘General Provisions’ (sòsoku) had three chapters:
i. Courts of Law. The material jurisdiction went by the rule of
the Law for the Organization of the Courts. Territorial jurisdiction
rested normally with the venue of the defendant’s domicile. Provisions
about the exclusion and refusal of members of the court were intro-
duced. In some cases the public prosecutor had to attend the hear-
ings in order to give his opinion—a partial revival of the old rule
under the Office Regulations for the Justice Department of 1872.31
ii. Parties to a suit. The subjects were litigation capacity, co-liti-
gants, interveners, legal representatives and next friends, costs, secu-
rity, succour in litigation. Principally, the parties had to plead
themselves; the employment of a lawyer was at their discretion, there
was no legal duty to be represented in court.
iii. Procedure. The code required the parties to an action to orally
debate the action in court. They should prepare their arguments by
pleadings for which certain requirements were laid down. Either side
was obliged to comment on the allegations of the opposing party.
The presiding judge could clear up the facts. Prescribed details of
the oral proceedings were protocolled. Other provisions regulated
service, deadlines and terms, effect of neglect and reinstatement in
the status quo, interruption and discontinuance of process and the
consequences.
1898, art. 34. This law was repealed by supplementary art. 2 of the Civil Execution
Law (Minji shikkò hò ) of 30 March 1979 which took the place of the provisions of
the Code of Civil Procedure on compulsory execution. The Civil Execution Law
maintains the alternative tender system for the auction of immovables and chattels,
arts. 64 and 134, detailed by art. 120 of the Civil Execution Regulations (Minji
shikkò kisoku) issued by the Supreme Court on 8 November 1979.
31
See chapter ‘The Public Prosecutor’.
672 procedural law
Book II ‘Procedure in First Instance’ (dai isshin no soshò tetsuzuki ) was

divided into two chapters: district courts and local courts.
i. The district court had to serve the claim to the defendant who
was asked to answer within a fortnight. The defendant could file a
counterclaim. The court had the power to issue provisions as to the
hearing and proof and to try to reach a compromise, but it was
restricted to a consideration of what the parties placed before it: the
principle of not going behind the pleadings of the parties. The court
was bound by its final or interlocutory judgement. If one of the par-
ties failed to appear on the day of the hearing the other party could
obtain a judgement by default (this procedure does not exist nowa-
days). Newly instituted were preliminary measures in case of action
for an account, for distribution of property and the like. Unless other-
wise provided everybody was obliged to give evidence as a witness
in court. If a subpoenaed witness failed to appear without good cause
the judge sentenced him or her to pay the cost brought about by
his/her non-attendance and a fine up to 20 ¥. The witness had to
swear an oath before being questioned.32 Evidence could be offered—
apart from witness—by presenting experts, documents, inspection
and examination of the parties themselves.33 There were also provi-
sions concerning the perpetuation of evidence.
ii. In the local court, action might be taken in writing or orally
and it was not necessary to exchange preliminary pleadings. On
request of the creditor the debtor could by means of default sum-
mons be ordered to pay.
Book III ‘Recourse’ ( jòso) regulated three types of appeal.
i. Appeal (kòso) could be lodged against final judgements of the
local or district court as the first instance. The appeal had to be
submitted within a peremptory term of one month from the service
of the judgement. The proceedings in the court of appeal were limited
32
If other persons were questioned on the occasion of taking evidence they too
had to swear an oath: experts, interpreters. The wording of the oath differed. The
witness swore that he would conscientiously tell the truth and neither conceal nor
add anything (art. 288 para. 2). The expert swore that he would conscientiously
give his expert opinion in good faith (art. 307), and the oath of the interpreter cor-
responded mutatis mutandis to that of the expert (art. 134).
33
The judge could make the party swear an oath, but that was not identical
with the old German system of interlocutory judgement about proof.
to the arguments determined by the dissatisfied party, and the par-

ties were not allowed to present fresh claims even if the opponent
consented.
Depending on the findings of the court of appeal there were var-
ious kinds of judgement concluding the second instance:
– The court could dismiss the appeal without hearing if the appeal
was unlawful and could not be made legitimate.
– The appeal was rejected if the court found the judgement of the
first instance appropriate, maybe for other reasons.
– If the court of appeal regarded the judgement of the first instance
as unjust it overruled it.
– If the first instance procedure had violated the law the court of
appeal had to overrule the judgement.
– If the court of the first instance had dismissed the action as inad-
missible and the court of appeal disagreed and overruled the judge-
ment the case had to be sent back to the lower court. The court
of appeal could act likewise if further pleading was needed.
– If the court of appeal overruled the judgement of the lower court
because of excess of jurisdiction it had to send the case to the
proper court.
ii. The final judgement of a court of appeal could be challenged
by re-appeal ( jòkoku) but only on the ground that the judge-
ment had violated the law. The re-appeal had to be lodged
within one month.
iii. The complaint (kòkoku) was the recourse against the decision
by which a petition concerning the procedure was dismissed
without hearing and other cases described by law.
Book IV ‘Renewal of Procedure’ (saishin) opened the way to having
a fully binding judgement annulled. Remarkable was a provision
under which a third person (non-litigant) could also request renewal
if the parties to the suit collusively had brought about the judge-
ment to the disadvantage of the third person, art. 483.
Book V was headed ‘Suit on Documents and Bills of Exchange’
(Shòsho soshò oyobi kawase soshò ) and provided for a quick procedure
by which a plaintiff could obtain a judgement for payment in a short
time if he proved the claim by documents or the bill of exchange.34
34
Book V was completely revised by the reform of 1926, law no. 61. The
674 procedural law
Book VI ‘Compulsory Execution’ (Kyòsei shikkò ) regulated the exe-

cution against movables after the German code with a noteworthy
deviation: in Techow’s draft the German principle of preferential
distribution (right of pledge) was adopted, but in the final version of
the Japanese code that system was replaced with the French prac-
tice that allowed all creditors to demand distribution.
There were also provisions about compulsory execution against
immovables, rights of claim, and other rights of property. In the lat-
ter case the code required an order of attachment from the court,
while the other types of compulsory execution were carried out by
a bailiff but, upon application, execution against immovables was to
be performed by the court. Section 4 Book VI dealt with provisional
attachment (kari sashiosae) and injunction (kari shobun) as a means of
securing the execution.
Books VII ‘Public Summons’ (Kòji saikoku) and VIII ‘Arbitration
Procedure’ (Chùsai tetsuzuki ) had not been drafted by Techow.
However, the contents were in the German legal tradition.
Together with the Code of Civil Procedure other laws of a related
nature came into force:
– Regulations for Enforcement of the Code of Civil Procedure (Minji
soshò hò shikkò jòrei ),
– Law on Costs for Civil Suits (Minji soshò hiyò hò )
– Stamp Law for Civil Suits (Minji soshò yò inshi hò ),
– Law for Official Auction at a Higher Price (Zòka kei[kyò]bai hò ): a
third person who had, with regard to the mortgaged real property,
required a right of ownership, superficies or perpetual lease could
have the mortgage extinguished if he offered a certain amount of
money to the mortgagee and came to an agreement. If the mort-
gagee did not agree the property would be auctioned off for the
offered sum plus ten per cent. That system followed the French suren-
chère. The law was superseded in June 1898 by the Auction Law.
legislator intended to speed up the process generally and not make a distinction as
to the kind of suit. Therefore, the suits on documents and bills of exchange no
longer enjoyed preferential treatment and the pertinent provisions were repealed.
Book V was renamed ‘Default Action’ (Tokusoku tetsuzuki ), it ruled the summary pro-
cedure in the local court by means of an order for payment (shiharai meirei ). But
when in recent times the civil procedure became increasingly delayed, the proper
function of bills of exchange and cheques was taken into consideration and the law
no. 135 of 1964 introduced ‘Special Rules Concerning Suits on Bills of Exchange
and Cheques’ (Tegata soshò oyobi kogitte soshò ni kansuru tokusoku) as Book V–2.
– Law of Insolvency (Kashi bunsan hò ), repealed under art. 384 of

the Bankruptcy Law (Hasanhò ) of 25 April 1922. The Law of
Insolvency applied to non-traders while book III of the old
Commercial Code of 27 March 1890 regulated mercantile bank-
ruptcy. In an outline of the Law of Insolvency the following points
are worth mentioning:
(i) Against a debtor who did not have the means to satisfy an
obligation fixed by a writ of execution under the Code of
Civil Procedure the court, ex officio or upon application, had
to declare him insolvent. Before making this decision the judge
didn’t need to hear the parties. Immediate complaint was
admissible.
(ii) The declaration of insolvency was made publicly known at
the noticeboards of the court and the civil parish.
(iii) The insolvent lost the right to vote and the eligibility from
the day on which he received the declaration. He regained
those rights on the conditions formulated in art. 1055 et seqq.
of the old Commercial Code.
(iv) He who had gone bankrupt under the previous law (shindai
kagiri ) remained subject to former restrictions of his civil rights.
That applied to mercantile bankruptcy too.
Book III of the old Commercial Code on mercantile bankruptcy
came into force on 1 July 1893. As well as the Law of Insolvency
it was repealed under art. 384 of the Bankruptcy Law of 1922.
Thereby the distinction between insolvent and bankrupt was abol-
ished and the principle of common bankruptcy introduced.35 The
old system had been drafted mainly but not exclusively after the German
law by Hermann Roesler, who was employed by the Japanese gov-
ernment as a legal adviser from 1878 to 1893.36 The final draft was
based on elements of various foreign law systems, mainly of French
law—particularly in Book III. Due to the severe dispute about the
work on the Civil Code and the Commercial Code the enforce-
ment of those codes was put off pending further deliberation. But
as the regulation of mercantile bankruptcy was urgently demanded
35
The former bankruptcy procedure has been described in detail by R. Ishii/W.J.
Chambliss (note 1) p. 426 and 503 et seqq. respectively. Retelling here would not
produce any addition.
36
The creation of the old Commercial Code and its amendments are described
by H. Baum/E. Takahashi in this volume.
676 procedural law
Book III of the old Commercial Code was first put into force sep-
arately.37 When thereafter the two codes had been enacted in 1896
(the first three books of the Civil Code) and 1899 (the new Commercial
Code) both of which were strongly influenced by German law, Book
III of the old Commercial Code remained in force. But its French
lineage was soon regarded as being out of place in the new civil law
system and in itself incomplete. The government made efforts to
amend the law of bankruptcy. Some changes were enacted in 1899;
worth mentioning is the substitution of the principle of mercantile
bankruptcy for Roesler’s attempted compromise between the bank-
ruptcy of traders and that of non-traders. A merchant was declared
bankrupt by decision of the court upon application of himself or his
creditors or ex officio if he suspended payments.38 From then the
bankrupt, during the bankruptcy proceedings, was deprived of his
right to possess property, control property or dispose of it. The court
appointed a trustee in bankruptcy who had wide power. The cred-
itors had their claims registered. The creditors’ meeting was con-
vened, it could make decisions (there were no regulations for the
matters to be decided upon) provided that a majority in number
and value of the creditors was present; their resolutions required the
consent of the court. After the superior obligations and preferred
claims had been satisfied the remainder of the property, converted
into money by the trustee in bankruptcy, was distributed in an even
apportionment among the creditors.
On the occasion of the enforcement of the new Commercial Code
art. 1054 of Book III of the old one was amended: unless the debtor
had regained his civil rights he was not allowed to hold a position
with responsibility or unlimited liability in a company or as auditor,
liquidator, trustee in bankruptcy or with the Chamber of Commerce.
Already in 1902 the Codes Investigation Commission (Hòten chòsa
kai ), established in 1893 for deliberation on the forthcoming Civil
Code and Commercial Code, presented the draft of a Bankruptcy
Law (Hasanhò ) which was meant to bring the subject into line with
the German legal trend as realized in parts of the Civil Code and
the Commercial Code. There followed many years of discussion, and
37
Simultaneously the parts governing the law of companies and bills of exchange
were enforced.
38
That was of French origin; under German law the inability to pay was the
crucial point.
in 1921 the Laws Investigation Committee (Hòritsu torishirabe i’inkai )39

offered a draft which was passed by the diet on 25 April 1922 and
enforced from 1 January 1923. Simultaneously the Composition Law
(Wagihò ) was enacted. It regulated the procedure by which bank-
ruptcy could be averted.
The Bankruptcy Law has been amended several times. The most
important change was, on 7 June 1952, the introduction of the Anglo-
American rule of discharge from obligation when the bankruptcy
proceedings had come to an end: the (honest) former bankrupt, upon
application, could be relieved of residual liability, arts. 366–2 to
366–20. In this respect the bankrupt was treated as equal to a cor-
poration in severe difficulties which is expected to recover under the
Corporate Reorganization Law (Kaisha kòsei hò ), enacted on the same
day as the said amendment of the Bankruptcy Law.
Other enactments supplementing the Code of Civil Procedure were
– the Law of Procedure in Non-contentious Litigation (Hishò jiken
tetsuzuki hò ) of 21 June 1898, originally issued on 4 October 1890
but postponed until the enforcement of the Civil and Commercial
Codes and amended in the meantime,
– the Procedural Rules Relating to Suits on Marriage, Adoption and
Incompetency (Kekkon jiken yòshi engumi jiken oyobi kinchisan jiken ni
kansuru soshò kisoku) of 9 October 1890, superseded by
– the Law of Procedure in Personal Matters ( Jinji soshò tetsuzuki hò )
of 21 June 1898.
Before long, a reconsideration of the Code of Civil Procedure was
felt desirable. To prepare a reform took nearly thirty years.40 In 1895
a Committee for Investigation of the Code of Civil Procedure (Minji
39
Founded on 19 April 1907 by Imperial order no. 133, put under the control
of the Minister of Justice, and assigned to examine and discuss civil and penal laws
specified by the minister. The chairman and up to 50 members were appointed by
the Cabinet upon petition of the Minister of Justice. The committee was dissolved
when on 8 July 1919 by Imperial order no. 323 the Special Council for Deliberation
on the Legal System (Rinji hòsei shingikai ) was established. This Special Council was
replaced by the Council for Deliberation on the Legal System (Hòsei shingikai ),
founded on 3 May 1929, controlled by the Prime Minister. Other deliberative com-
mittees followed.
40
It was not an urgent matter as during that time the number of litigations never
reached 0,5 per cent of the population. For litigations see Shihòenkakushi (note 1) at
553, for population E. Papinot, Historical and Geographical Dictionary of Japan
(1979), p. 804.
678 procedural law
soshò hò chòsa i’inkai ) under the chairmanship of Taizò Miyoshi, the

President of the Supreme Court, was set up. The work of this com-
mittee was continued by the Codes Investigation Committee from
1899. The committee gave out a draft in 1903 but was dissolved
with effect from 1 April of the same year. In 1911 the Laws Inves-
tigation Committee attended to the Code anew on the basis of the
draft of 1903, invited opinions from many quarters, probed the mat-
ter in depth again, and endeavoured—differently from the previous
course—to found the findings on the suitability of the practice in
accordance with Japan’s experience of the procedure under the Code.
There were many discussions but the committee could not finish the
work before it was dissolved on 8 July 1919. Now, a Committee for
the Revision of the Code of Civil Procedure (Minji soshò hò kaisei chòsa
i’inkai ) was established in the Ministry of Justice which carried on
the issue and prepared Bills which became laws no. 61 to 70 con-
cerning the revision of the Code of Civil Procedure and relating
laws: Regulations for Enforcement of the Code of Civil Procedure,
Law of Costs for Civil Suits, Stamp Law for Civil Suits, Stamp Law
for Commercial Non-contentious Litigation, Law of Procedure in
Personal Matters, Law of Procedure in Non-contentious Litigation,
Auction Law, Civil Code and Bankruptcy Law.
The amended Code of Civil Procedure, promulgated on 24 April
1926, operated from 1 October 1929. The main matter of concern
was to speed up the proceedings. At first glance, it is conspicuous
that the provisions on judgement by default and decisions based
upon documents were repealed. Under German law these proceed-
ings were regarded as particularly speedy and effective because they
allow early execution. But due to a subsequent ordinary procedure
and remedies the whole process may get to be longer than in the
case of initial regular legal action. Nevertheless, a good many jurists
advocated the reintroduction of the judgement by default and the
decisions based upon documents—at least bills of exchange. In 1954
special provisions on actions deriving from a bill of exchange and
from a cheque were inserted into the Code of Civil Procedure (arts.
444–463). The legislator of 1926 gave priority to swiftness and
extended and strengthened the ex officio competence of the judge.
During the Second World War the Wartime Special Law for Civil
Affairs (Senji minji tokubetsu hò ) was issued on 24 February 1942, in
force from 21 March 1942. It brought simplifications of the proce-
dure, particular facilities in bankruptcy cases and general applica-
bility of mediation. The law was repealed soon after the war but
the provisions about mediation influenced the later mediation system.
Under art. 77 of the Constitution of 1947 the Supreme Court is
vested with the rule-making power under which it determines the
rules of procedure and of practice. So it came about that the Supreme
Court played and plays an important role in bringing the civil pro-
cedure in line with judicial policies. The Constitution does not give
the order to reform the Code of Civil Procedure. But some changes
were really required merely with respect to the reorganization of the
courts of law. Moreover, experience had shown that a great num-
ber of appeals and re-appeals were ill-considered; only ten per cent
met with success. The burdens of the courts of the second and third
instance led to the situation that legal redress proceedings took from
five to fifteen years. Since the number of judges of the Supreme
Court was set at fifteen drastic means against a far too extensive
redress practice had become unavoidable.
A thorough reform could not be prepared in a short while and
there was no urgent need for it. Some issues, however, had to be
regulated at once: the Law for Emergency Measures Concerning
the Code of Civil Procedure Pursuant to the Enforcement of the
Constitution of Japan (Nihonkoku kenpò no shikò ni tomonau minji soshò
hò no òkyùteki sochi ni kansuru hòritsu), law no. 75 of 19 April 1947, in
force until 31 December 1948, arranged them. The law introduced
a special re-appeal to the Supreme Court as the organ authorized
under art. 81 of the Constitution finally to determine the constitu-
tionality of any law, order, regulation or official act and left those
changes which were to fit in with the new Court Law to government
ordinances. Law no. 149 of 12 July 1948 amended the order of
examination of witnesses after Anglo-American law and introduced
the cross-examination, but the judge himself could ask the witness
at any time, art. 294 of the Code of Civil Procedure. Besides, the
law inserted the above mentioned special re-appeal and the legal
redress of immediate complaint into the Code and further opened
the way to modify a judgement ex officio, thereby decreasing the
number of cases having decisions corrected by means of legal redress
only.
Next came the Law for Exceptions of Adjudgement on Civil Re-
Appeal Cases by the Supreme Court (Saikò saibansho ni okeru minji
jòkoku jiken no shinpan no tokurei ni kansuru hòritsu) of 4 May 1950. The
burdens of the Supreme Court had to be relieved: while the num-
680 procedural law
ber of re-appeal cases increased and the Supreme Court had the
additional task of examination of the constitutionality it consisted of
only fifteen judges, i.e. one third of the judges of the old Supreme
Court. Therefore the responsibility of the Supreme Court was lim-
ited to the adjudgement on re-appeals based upon violation of the
Constitution or infringement of a judicial precedent, moreover in
cases in which the Court recognized that they concerned significant
matters for investigation regarding the interpretation of laws and
ordinances. Common re-appeals against judgements of the district
court as the appeal court were to be filed with the high court.
Thereby the Supreme Court was freed from dealing with trifles.
Second instance judgements of the high court were reviewed by the
Supreme Court, and the special re-appeal was in any case admissi-
ble. The Law was intended to operate for two years pending a gen-
eral reform of the Code of Civil Procedure and prolonged for another
two years. It was replaced by law no. 127 of 1954 which was accom-
panied by an extension of the jurisdiction of the summary court from
a maximum value of the claim of 3,000 ¥ to 10,000 ¥ (amendment
of the Court Law). Law no. 127 prescribed that specific re-appeals
addressed to the Supreme Court had to be filed with the court of
the decision objected to instead of the Supreme Court, and that the
lower court examined the formalities of the re-appeal and rejected
it if they were not obeyed. Against that decision immediate com-
plaint was admissible.
By such means part of the Supreme Court’s load was taken off.
In the years following those first reforms there were, apart from
some trifling amendments, two important changes. The new Civil
Execution Law (Minji shikò hò ) of 30 March 1979 replaced the for-
mer articles on compulsory execution of the Code of Civil Procedure,
and the proceedings of attachment and temporary injunction were
newly regulated by a law of 22 December 1989.
It was years before a comprehensive reform of the Code of Civil
Procedure, long planned, was accomplished in June 1996, enforced
from 1 January 1998. The principal aim of the reform was to quicken
and concentrate the procedure. The work of the drafting committee
was influenced by recent German legislation and the good results
of this.41
41
Tei’ichirò Nakano gave a survey in Zeitschrift für Japanisches Recht ( Journal
of Japanese Law), vol. 6 (1998), p. 167 et seqq.
law of criminal procedure 681
9.3 Law of Criminal Procedure
Petra Schmidt
1. Introduction
In the Tokugawa period (1600–1867) criminal cases were referred to

as ginmi-suji, and were adjudicated by the Supreme Council1 in the
Shogunate government’s capitol Edo as well as by shrine, temple,
or town commissioners and by accounts in the regions. The insti-
gation of ginmi-suji-proceedings was made upon accusation, complaint,
or a policeman’s report, or they could be initiated by a judge ex
officio. Counsel did not exist, and during proceedings, the accused
could be put in prison, kept bound in his own house, or in the
ward-office. Since a confession was essential for the conviction of a
criminal, torture was frequently applied to extract confessions, and
administered on the basis of a number of legal provisions, for exam-
ple the ‘Edict in 100 Sections’.2 Had a confession been made, a
report was drafted by the court clerk, and acknowledged by the
accused. Based on a draft judgment written by the court clerk, the
judge decided the case, and sentences were principally carried out
immediately.3
1
hyòjò-sho
2
Òsadamegaki Hyakkajò; a 1792 compilation of existing criminal and procedure
laws by Shògun Yoshimune.
3
S. Dandò, Japanese Criminal Procedure (South Hackensack 1965) 14; Dandò
(ibid. at 18 note 3) describes Tokugawa period torture: “Torture included that car-
ried out in a place of confinement [ròmon] and that done in a special torture cham-
ber [gòmon]. Ròmon was usually whipping [muchi ] or ishidakase, in which the subject
was forced to kneel on serrated boards and heavy rocks placed around his thighs.
There was also an exceptional ròmon, ebizeme, in which the prisoner was tied around
neck and ankles by a special halter so that he had to sit forward over his legs. A
form of gòmon was tsurizeme, in which the prisoner’s arms were bound behind him
and he was suspended from the ceiling by his wrists.” See also J.C. Hall, Japanese
Feudal Laws-III. The Tokugawa Legislation—Part IV, The Edict in 100 Sections:
41 TASJ 683 appendix (1913); see also C. Steenstrup, A History of Law in Japan
until 1868 (Leiden . . . 1991) 154 et seq.; for a detailed study of criminal procedure
in the Tokugawa period see Y. Hiramatsu, Kinsei keiji soshò-hò no kenkyù [Studies in
premodern Law of Criminal Procedure] (Tokyo 1960).
682 procedural law
2. Criminal Procedure in the early Meiji Period 4
More than two centuries of Japan’s seclusion was brought to an end

by the arrival of Commodore Perry’s black ships in 1854, followed
by the conclusion of the so-called ‘unequal treaties’ with several
Western nations, and eventually the Meiji Restoration of 1868, which
saw the reinstallment of the Tennò as the political head of the nation
after about one millennium of a shadowy existence in the Imperial
Palace of Kyòto. The new government soon became aware of the
inevitability of modernizing the nation to free itself from the unequal
treaties and to repeal extraterritoriality. Utmost priority in this con-
text had to be paid to the modernization of the legal system.5
For lack of alternatives, initially after the Meiji Restoration Tokugawa
law was still applied, but modernization of the legal system was an
inevitable task and could not be delayed. The Great Council of
State,6 an institution which had survived at the Imperial Court from
the times before the Sogunate had taken over power, was reinforced
in January 1868. The Council consisted of a president,7 delibera-
tors,8 councillors,9 and seven administrative sections, among them the
‘Penal Law Administrative Section’.10 The latter was renamed ‘Penal
Law Administrative Secretariat’ in February 1868,11 and entrusted
with the jurisdiction in daimyò-related and grave cases. Upon the
reformation of the Great Council of State in April 1868, its author-
ity and functions were divided into legislation, administration, and
jurisdiction. For the purpose of fulfilling the latter task, the ‘Penal
Law Office’12 was established, to which the handling of all criminal
cases was transferred from the Supreme Council.13 However, the
inspecting function of the Penal Law Office was transferred to the
4
1868–1911
5
‘Why can we not revise the treaties forthwith? It is because our criminal laws
are not the same as [those of the West] and more especially because our methods
of administering criminal justice are clearly different from theirs’; T. Mamichi, On
Torture Part. II: 10 Meiroku Zasshi (1874) in: W.R. Braisted, Meiroku Zasshi:
Journal of the Japanese Enlightenment (Tokyo 1976) 127.
6
Dajòkan
7
sòsai
8
gijò
9
san’yo
10
Keimu jimu-ka
11
Keimu jimu-kyoku
12
Keihò-kan
13
K. Mukai/N. Toshitani, The Progress and Problems of Compiling the Civil
Board of Censors,14 which had been established in May 1869. Only

two months later the Department of Criminal Affairs15 had been
established, and these two institutions were to have a significant role
in the compilation of a Criminal Code. Work on this Code com-
menced soon after the Meiji Restoration, since the Imperial Court
opposed the Great Council of State’s decision on continuing the
application of Tokugawa Laws for the time being.16 Based on the
eighth century Taihò- and Yòrò-Codes, the ‘Edict in 100 Sections’
and the Criminal Code of the Kumamoto-han,17 the ‘Tentative Criminal
Provisions’18 were compiled that same year. Although this Code was
never promulgated, some of its parts were regionally enacted, and
its provisions consulted in doubtful cases.
In October 1869 the Great Council of State ordered the Criminal
Affairs Department to compile a Criminal Code. The aim was to
do away with feudalistic traditions and to adapt criminal law to
modern standards. The handling of all cases of treason, homicide,
robbery, arson etc. was to be delayed until the enactment of the
new Code.19 As the product of the efforts of the Criminal Affairs
Department, the ‘Outline for the New Criminal Law’20 was pro-
mulgated in 1870. This tradition-based Code was soon outdated,
and thus already in 1873 revised as the ‘Amended Criminal
Regulations’.21 But despite the declared aim of modernizing Japanese
criminal law, the result of the Department’s deliberations was quite
Code in the Early Meiji Era, 1 Law in Japan (1967) 25, 28 et seq.; T. Odanaka,
Keiji soshò-hò no rekishi-teki bunseki [A Historical Analysis of the Code of Criminal
Procedure] (Tokyo 1976) 111.
14
Danjòdai
15
Gyòbu-shò; sometimes translated as Ministry of Punishments, see Mukai/Toshitani,
note 13, at 29.
16
T. Ishimaru, Keiji soshò no jitsumu, jò [Practice of Criminal Procedure, I] (Tokyo
1990) 1; Odanaka, note 13, at 113.
17
Feudal domain
18
Kari-keiritsu; for details see K. Mihara, Shikei haishi no kenkyù [Studies on the
Abolition of Capital Punishment] (Tokyo 1990) 93 et seq.
19
Odanaka, note 13, at 115.
20
Shinritsu Kòryò; Great Council of State (Dajòkan) Decree No. 94 of 1870; Japanese
text in K. Kondò [ed.], Shinritsu kòryò Kaitei ritsurei gòken chùshaku 1–6 [Commentary
on the Outline of the New Criminal Law and the Amended Criminal Regulations]
(Tokyo 1874); for a partial English translation see J.H. Longford, A summary of
the Japanese Penal Codes: 5 II TASJ (1877).
21
Kaitei Ritsurei; Great Council of State Decree No. 206 of 1873; Japanese and
English translations: see Kondò, note 20, Longford, note 20.
684 procedural law
reactionary. Since Japan at that time had not yet been subject to
much Western influence, the drafting committee had based its efforts
on the Law of the Chinese Ming-22 and Qing-23Dynasties.24 The Chinese
laws had not undergone fundamental changes since the Tang-period,25
whose laws had been adopted by Japan in ancient times and used
as a model for the early compilations of the Taihò-26 and the Yòrò-
Codes,27 introducing the so-called ritsuryò legal system. Thus the com-
pilation and enactment of the ‘Outline of the New Criminal Law’
and the ‘Amended Criminal Regulations’ in fact brought about a
revival of this ancient system. Another frequently cited argument for
the compilators’ choice of Chinese Law as a model for the Codes
allegedly lay in the purpose of further strengthening the restorated
government of the Meiji Emperor, since the last time the Tennò had
been the real head of the nation was at the time of the ritsuryò law.28
2.1. The ‘Outline of the New Criminal Law’ and the

Amended Criminal Regulations’
The ‘Outline of the New Criminal Law’ comprised mainly provi-
sions on criminal law, but also included some on criminal proce-
dure, with the latter closely oriented on the ginmi-suji of the Tokugawa
period. First of all, unlike in Western law of the time, in Japan inves-
tigating officers could arrest immediately upon suspicion even if there
was no evidence at all. Also, malpractices could be immediately pun-
ished even if they were not specified in law.29 Despite a general
humanization of Tokugawa Law in the two Codes, the reduction of
the countless methods of torture and the modification of the cruelty
of the torture methods at least to a certain degree, criminal proce-
dure under the ‘Outline’ was still of a highly inquisitorial nature.
Torture was expressis verbis permitted, if the criminal refused to con-
22
Ming-Dynasty: 1368–1644.
23
Qing-Dynasty: 1644–1911.
24
Code: Ta-qing-lü-li
25
618–906
26
701
27
718
28
It should be mentioned that the whole political system was based on that of
the heyday of the dynasty, a millennium ago, the best example herefore being the
reenactivation of the Great Council of State; Mukai/Toshitani, note 13, at 29.
29
Mamichi, note 5, at 128.
fess notwithstanding the clear evidence of his guilt.30 Nevertheless the

‘Outline of the New Criminal Law’ provided for restrictions in the
application of torture, and punished any abuse of it.31 The ‘Amended
Criminal Regulations’ did not bring about many alterations or nov-
elties, compared to the previous Code, but merely added some forms
of punishment and specified the application of the provisions.32 Art.
318 of this Code confirmed the application of torture: “All crimes
shall be adjudicated on the basis of confessions”. Even if other sup-
porting evidence existed, a suspect could not be sentenced without
a confession, which in turn in many cases could only be extracted
through the application of torture.33
2.2. Other Developments in the early Meiji Period

Already in 1870 the Criminal Affairs Department had enacted a
Law concerning Court Proceedings for the first time. This law was
called ‘Regulations for Criminal Courts’,34 which in 1873 were replaced
by the ‘Regulations for Criminal Proceedings’.35 According to the
latter Code, a judge had to be present during the questioning of a
suspect, and a court clerk had to draft a report, based on which the
judge had to decide the case. The ‘Regulations for Criminal Pro-
ceedings’ generally permitted torture, but some parts of the ‘Tentative
Criminal Provisions’, which had been enacted, forbade the application
30
T. Takada, Keiji soshò-hò [Law of Criminal Procedure] (Tokyo 1978) 13;
Braisted, note 5, at 100 fn. 8.
31
It forbade to torture persons older than 70 or younger than 15 years, or infirm
persons; in case of such a person being the suspect of an offense, a conviction was
not to be based on a confession, but on evidence such as testimonies of witnesses.
In cases of pregnant women, torture was not allowed until 100 days after having
given birth. An official who violated these provisions, was to be sentenced to 90
days imprisonment. If torture caused a miscarriage, the official’s sentence was
increased to 18 months, if the woman died, to ten years. Any official who illegally
tortured a suspect was to be sentenced to the same punishment as the suspect
received. If an official tortured somebody for personal revenge, he was to be
beheaded. Ishimaru, note 16, at 2–3; also see for further explanations: Longford,
note 20, at 115.
32
See P. Schmidt, Die Todesstrafe in Japan [Capital Punishment in Japan] (Hamburg
1996).
33
Ishimaru, note 16, at 3; T. Mamichi, note 5, at 128: ‘Torture is essential for us
because it is our general practice that there can be no judgment against a crimi-
nal without his confession even though evidence of the guilt is fully established’.
34
Gokutei kisoku
35
Dangoku kirei
686 procedural law
of torture on suspects over 70 or under 15 years of age or on insane

persons, thus adopting the system applied in the Tokugawa period.36
The ‘Amended Criminal Regulation’s’ Art. 318, which also per-
mitted torture, soon provoked violent criticism from Japanese jurists
who were versed in Western legal systems, and other more liberal
intellectuals.37 This opposition caused the Justice Department38 in
1874 to restrict the use of physical torture as a first step towards
the abolition of torture.39 In 1876 French Law professor Gustave
Boissonade, a foreign advisor to the Justice Department, submitted
a written opinion advocating the abolition of torture to the Depart-
ment,40 and soon afterwards Art. 318 was revised to read: “All crimes
shall be adjudicated on the basis of evidence”,41 which consequently
led to a significant decrease in the application of torture. Torture
was eventually officially abolished—at least in theory—in 1879.42
With regard to other developments during the early Meiji period,
the dismantling of the Board of Councilors and the Criminal Affairs
Department and the establishment of the Justice Department in 1871
instead, preceded the replacement of the han43 by prefectures by a
few days, and was meant as yet another step towards the creation
of a centralized nation. In 1875 the Great Court of Judicature44 was
established together with the legislative organs of the Senate45 and
the Conference of Local Officials’.46 Furthermore, in May 1875 reg-
ulations for the courts were enacted, including the Great Court of
36
H. Maki/T. Fujihara, Nihon hòsei-shi [History of Japanese Law] (Tokyo 1993)
320; Odanaka, note 13, t 116.
37
An English translation of some interesting views on the abolition of torture,
written by T. Mamichi and published in the Meiroku Zasshi in 1874, can be found
in Braisted, note 5, at 94 and 127.
38
Shihò-shò
39
Justice Department Notice No. 19; physical torture had already been prohib-
ited in civil cases by Justice Department Notice No. 6 of 1872; K. Takayanagi, A
Century of Innovation: The Development of Japanese Law, 1868–1961, in: A. v.
Mehren [ed.], Law in Japan: The Legal Order in a Changing Society (Cambridge
1963) 15, 20.
40
H. Otake/H. Maki [ed.], Nihon hòsei-shi [History of Japanese Law] (Tokyo
1987) 285.
41
Great Council of State Decree No. 85 of 1876; Ishimaru, note 16, at 4.
42
Great Council of State Decree No. 42 of 1879; Takayanagi, note 39, at 20.
43
Domains
44
Dashin’in; Supreme Court.
45
Genrò-in
46
Chihò-kan kaigi
Judicature,47 High Courts48 in Tokyo, Osaka, Fukushima and Nagasaki,

and Prefectural Courts,49 which had also been established that year.50
The office of the public procurator51 had been established by
Notice of the Justice Department in 1872. It is sometimes questioned,
however, whether the French model for this institution had been
really understood by the department’s bureaucrats and jurists, since
the ‘Regulation for the Organization of the Justice Department’ of
that year gave the prosecutor ‘the right to demand trial but [not]
the right to conduct trial’.52 Also did the 1873 ‘Regulations for
Criminal Proceedings’ provide that ‘the judge himself has the respon-
sibility of conducting hearings, the clerk of the court is to record the
oral statements and the public prosecutor is to sit by the side of the
judge and observe what transpires at the trial’. The ‘Regulations for
the Organization of the Justice Department’53 were revised in 187454
and included detailed provisions about the authority of the procu-
rator, who for example had the power to interrogate suspects, to
order an arrest etc. However, Art. 7 of the ‘Regulations’ provided
that the prosecutor had ‘the right to act as the complainant and to
demand punishment, but does not have the right to conduct the
trial’.55 It was only in the ‘Regulations for the Organization of the
Justice Department and the Procuracy’56 of 1877 that the term ‘pub-
lic prosecution’ was used for the first time, although the system was
still not completely put in effect.57 The Justice Department earlier
had stated58 that an examining judge had to check the procurator’s
charges, thus carrying out preliminary examinations. To end such
confusion, the Justice Department stated in the following year that
‘from now on all crimes except those committed in the courtroom
47
Daishin’in
48
Kòtò saiban-sho
49
Fuken saiban-sho; in 1876 renamed in Ku-saiban-sho (Regional Courts).
50
Takada, note 30, at 14.
51
kenkan
52
Dandò, note 3 (1965), at 14–15.
53
Shihò-shò shokusei shòtei.
54
Justice Department Notice No. 10.
55
Tanaka, note 3, at 98; Odanaka, note 13, at 121 et seq.
56
Shihò-shò shokusei, kenji shokusei shòtei.
57
58
Notice No. 47 of 1876.
688 procedural law
or revealed incidentally during the trial of a case shall be adjudicated

pursuant to formal charges brought by a procurator’.59
One of the most important developments of this period was the
emergence of the principle of ‘no indictment, no trial’.60 In the ‘Pro-
visional Regulations for the Duties of Examining Judges’61 of April
1876 it was allowed to open the examination in cases of flagrant crimes
ex officio without having to wait for the procurator taking charges.62
Another development that deserves to be mentioned, is the recog-
nition of appeal63 and revision64 in 187565 for all criminal cases, ex-
cept for those which involved capital punishment or petty crimes.66
Initially the appellant was either the procurator or the prisoner, from
1877 the procurator or the convict.67
3. The 1880 Code of Criminal Instruction68
As mentioned before, the Meiji government realized at a very early

stage that a modernization of the Japanese legal system would be
only practicable if Western law was studied. As early as 1870 a
‘Bureau for the Investigation of Institutions’69 was established within
the Great Council of State, for the purpose of translating various
French Codes. These had been chosen in preference to other nations’
legal systems, since French Law was based on the concept of nat-
ural law, with the universality and appropriateness of a law span-
ning history and all times as its cardinal elements. Being unrelated
to differences of religion, culture, or race, it therefore seemed to be
the best choice for Japan.70 Due to an institutional reform within
59
Justice Department Notice No. 4 of 1878; Otake/Maki, note 40, at 284,
Dandò, note 3 (1965), at 15.
60
fukoku furi
61
Kyùmon hanji shokumu kari-kisei.
62
Otake/Maki, note 40, at 284; Odanaka, note 13, at 126.
63
kòso
64
jòkoku
65
66
Takayanagi, note 39, at 20.
67
68
Chizai-hò; Japanese text in Y. Takada, Chizai-hò [Code of Criminal Instruction]
(Tokyo 1880).
69
Dajòkan seido-kyoku
70
W. Ishikawa, Keiji soshò-hò kògi [A Course in the Law of Criminal Procedure]
(Tokyo 1974) 12–13.
the Great Council of State71 the Chamber of the Left72 was estab-
lished in July 1871, merging with the ‘Bureau for the Investigation
of Institutions’ the following month. Here, as well as in the Justice
Department, work on the translation continued with the ultimate
purpose of drafting a Japanese Code of Criminal Procedure.73
The initial work on the ‘Code of Criminal Instruction’ was begun
by the Justice Department in 1876, and was continued by the ‘Bureau
to Examine the Code of Criminal Procedure’,74 which had been
established within the Great Council of State in 1877.75 The com-
mission, including several Japanese jurists as well as the foremen-
tioned French jurist Boissonade, based its draft mainly on the French
Code d’Instruction Criminelle of 1808, and to a certain extent on the
laws of other nations as for instance Germany, Austria, and Egypt.76
After a revision with due reference to current Japanese laws and
customs, the draft was presented to the Meiji Emperor in September
1879. From there it was sent to another committee within the Senate,77
and further to the Great Council of State, where several changes
were made. These changes included for example the deletion of the
provisions on a jury system, which Boissonade had proposed to
incorporate in the Code of Criminal Instruction.78 By April 1880 the
draft reached the Senate for final modifications. It was promulgated
in July 1880,79 and went into effect in January 1882.80
71
Dajòkan
72
Sain
73
Ishikawa, note 70, at 12.
74
Chizai-hò torishirabe-kai.
75
S. Dandò, Shin-keiji soshò-hò saiyò [An Outline of the New Code of Criminal
Procedure] (Tokyo 1958) 14.
76
R. Ishii, Japanese Culture in the Meiji Era, Vol. IX, Legislation, translated by
W.J. Chambliss, (Tokyo 1958) 512; Otake/Makii, note 40, at 285.
77
Genrò-in
78
Boissonade had explained in his draft that the adoption of a jury system would
be of great importance to convince the Western powers of the modernity of the
system and the inpartiality of Japanese justice. The Japanese, however, believed the
adoption of a jury system to be premature, and abandoned the idea. Boissonade
tried again to have the idea adopted during the drafting of the Meiji Constitution,
but could not succeed; see Takayanagi, note 36, at 21. For details concerning the
planned jury system see G. Boissonade, Projet De Code De Procédure Criminelle
Pour L’Empire Du Japon Accompagné D’Un Commentaire (Project for a Code of
Criminal Procedure for the Japanese Empire, with Commentary) (Tokyo 1882) 115,
155 et seq.
79
80
Ishikawa, note 70, at 12.
690 procedural law
As mentioned before, the ground for the Code had already been
prepared by several decrees for example on the abolition of torture,
a revision of the law of evidence, by requiring a formal accusatory
pleading for the commencement of the prosecution and the like,
most of which were incorporated in the Code of Criminal Instruction.
Although the Code was hardly more than a translation or at least
a very close adaption of the Code d’Instruction Criminelle, an important
step had been made towards the modernization of Japan’s legal
system.81
The Code, which for the first time dealt systematically and com-
prehensively with criminal procedure, comprised 480 articles in six
books on ‘General Provisions’, ‘Constitution of the Courts’, ‘Investiga-
tion’, ‘Public Trial’, ‘Duties of the Supreme Court and Execution of
Judgments’, ‘Rehabilitation and Amnesty’.82
Book I (General Provisions) mainly comprised provisions on the
legal procedure for civil suits, which were incidental to criminal
actions, and on the extinction of the right of public and private
action. ‘Public action’ was defined as a legal proceeding, which was
carried out by a public procurator to proof the infringement and
application of a law. ‘Private action’ was defined as a legal pro-
ceeding for the purpose of receiving compensation for damages
inflicted by an offender,83 following the Tokugawa period institution
of a petition for criminal investigation.84 Also, Art. 10 of the Code
of Criminal Instruction provided for prescription for the first time.
Since at the time of the enactment of the Code of Criminal
Instruction’s, no Law of the Constitution of Courts had existed yet,
the Code of Criminal Instruction’s second book dealt with the con-
stitution and the jurisdiction of the courts. According to the French-
style tripartition of offences in crimes, delittes and contraventions, Japanese
criminal procedure now distinguished between felonies,85 misde-
meanours,86 and police offences.87 The jurisdiction of a court depended
on the kind of offences that had been committed. As court of first
81
Dandò, note 75, at 15.
82
See also Boissonade, note 78.
83
See Arts. 1–4 Code of Criminal Instruction.
84
ginmi negai; Ishii, note 76, at 513.
85
jùzai
86
Keizai
87
Ikeizai
instance the Peace Court88 handled police offences,89 and the Court
of Original Jurisdiction90 had the jurisdiction over misdemeanours
and over appeals in cases of police offences.91 Felonies were judged
either by a Court of Original Jurisdiction or by the Court of Appeals,92
which also opened in cases of appeals against decisions in misdeamour
trials.93 The Great Court of Judiciature94 opened in cases of re-
appeals, appeals for re-trials or for a decision on court jurisdiction,
or appeals for a change of venue for reasons of public peace or
morale.95 Furthermore, a Special Higher Court96 was established
exclusively to deal with offences against the Imperial Family or the
State, and with felonies or misdemeanours committed by members
of the Imperial Family or by imperially appointed officials.97
The concept of ‘flagrant crimes’98 was quite different from the pre-
vious law, with Art. 100 of the Code of Criminal Instruction defining
them as ‘offences, which have been actually carried out or have been
attempted and have been discovered on the spot’. Especially remark-
able was the general permission of arrest without warrant.
Criminal Proceedings were divided into three stages, viz. in ini-
tial investigation, preliminary examination, and main hearing. Whereas
the initial investigation was conducted by the procurator, the pre-
liminary examination was the task of the examining judge or mag-
istrate,99 who had to decide whether a case should be tried or not.100
Thus the third book of the Code of Criminal Instruction dealt with
the investigation of offences, indictment, and preliminary examina-
tion. The procurator could conduct an investigation upon his own
decision or upon complaint or accusation. In case of a felony, a
88
Ikeizai saiban-sho, Chian saiban-sho.
89
Art. 49 Code of Criminal Instruction.
90
Keizai saiban-sho, Shishin saiban-sho.
91
Arts. 66, 83 Code of Criminal Instruction.
92
Jùzai saiban-sho, Kòso saiban-sho.
93
Art. 75 Code of Criminal Instruction; the code did not recognize appeals in
felony-cases.
94
Daishin’in; Supreme Court.
95
96
Kòtò hòin
97
98
genkò-han
99
yosan hanji
100
U. Zong, Zur Geschichte der Kodifikation des Strafrechts in Ostasien [The
History of the Codification of Criminal Law in East-Asia]: 84 ZStW (1972) 434,
453 et seq.
692 procedural law
preliminary examination would follow necessarily, otherwise the case

could be transferred directly to the relevant court.
As to the system and proceedings of the preliminary examination,
the inquisitorial system as it had existed in Japan before the enact-
ment of the Code of Criminal Instruction, was adopted by the Code,
and was generally supported by Japanese jurists at the time. The
preliminary examination now followed the indictment.101 In evalua-
tion of evidence by the examining judge, Art. 146 II of the Code
of Criminal Instruction stated the principle of free conviction. The
judge could collect all evidence necessary for the revelation of facts
related to the case. He had to question the defendant first, and the
procurator was barred from participation therein. During the pre-
liminary examination, not only the procurator or private plaintiff,
but also the suspect could demand the interrogation of witnesses.102
The judge could release the defendant on bail.103
Although the Code of Criminal Instruction comprised the princi-
ple of ‘no indictment, no trial’,104 exceptions were provided for in
cases of extreme urgency, acceptance of a private action by an exam-
ining judge, or upon disclosure of incidental cases at court. In these
cases the judge could open the examination without having to wait
for the procurator’s request.105 Depending on the necessity or urgency
of the case, the examining judge could issue a warrant of produc-
tion,106 of arrest,107 of detention,108 or of commitment109 and interro-
gate the suspect.110 Custody was limited to ten days, with an option
to be extended for another ten days. Once a warrant of commit-
ment had been issued, no time limit existed.111
101
Prior to the enforcement of the Code it had been conducted before indict-
ment; Ishii, note 76, at 517.
102
Art. 170 Code of Criminal Instruction
103
Art. 210 Code of Criminal Instruction. The bail system had already been
introduced by the ‘Bail Regulations’ [Baishaku jòrei], Great Council of State Decree
No. 17 of 1877; Takayanagi, note 36, at 20.
104
fukoku furi
105
106
shùkan-jò
107
kòin-jò
108
kòryù-jò
109
shùkan-jò
110
See Arts. 118–145 Code of Criminal Instruction.
111
Upon conclusion of the examination the judge had to declare how

to further dispose of the case. The procurator or the defendant had
the right to appeal against this decision.112 In the public view, how-
ever, the decision of an examining judge upon conclusion of the pre-
liminary examination to send the case to court for trial, was generally
understood as a proof of the guilt of the accused, in spite of the
legal principle of presumed innocence.113 It was for instance cus-
tomary for a public official to retire from his post, when tried after
a preliminary examination.114
As to the defense system, for the first time in the Japanese his-
tory of law, an advocate was permitted to appear for the defense of
an accused. Theoretically the counsel stood in a position equal to
that of the procurator, but in practice the real ranking was clearly
demonstrated by the judge and the procurator as representatives of
the state sitting on an elevated platform.115
Art. 266 of the Code of Criminal Instruction guaranteed the sus-
pect the right to appoint an advocate during trial, although it was
unclear whether counsel was permitted during the preliminary exam-
ination.116 In cases of felony, the court appointed a counsel, when
the defendant had not done so himself,117 since in felony trials a
judgment was considered void, if no counsel was present.118 The
counsel had the right to interview the suspect and to see all docu-
ments of the trial,119 and he could plead during trial.120
As to the principle of ‘no indictment, no trial’, other offences as
those for which the defendant had been indicted, were not to be
tried during trial.121 Furthermore, Art. 263 of the Code of Criminal
112
Arts. 224–261 Code of Criminal Instruction.
113
See below.
114
Takayanagi, note 39, at 21; as to the preliminary examination, Great Council
of State Decree No. 54 of 1881 provided for the opening of trials without such an
examination in cases of police offences at the Peace Courts; Odanaka, note 13, at
129.
115
Takayanagi, note 39, at 20–21.
116
see Art. 140 Code of Criminal Instruction.
117
see Art. 378 Code of Criminal Instruction.
118
119
120
121
Art. 276 Code of Criminal Instruction; although Art. 210 of the code stated
an exception for the stage of the preliminary investigation, and Art. 410 provided
for the appointment of an examining judge in case other offences had been uncov-
ered during trial.
694 procedural law
Instruction declared the principle of public trial. Moreover, it was

prohibited putting the defendant under physical constraint in the
courtroom.122
Another remarkable novel feature of the Code of Criminal
Instruction was the adoption of the principle of the presumption of
innocence.123 As mentioned before, the principle of free conviction
was adopted in Art. 146 of this Code, with the judge making a deci-
sion upon the examination of all evidence. Only in case of police
offences a confession was sufficient for a conviction, even if no sup-
porting evidence existed.124
However, a confession still was of great importance in all cases,
and to prevent the coercion of confessions, Art. 150 of the Code of
Criminal Instruction prohibited the use of threat or compulsion.
Appeals against decisions could be made with the Court of Original
Jurisdiction in case of police offences, and to the Court of Appeals
in case of misdemeanours. Appeals for felonies were not permitted
by the Code, but retrial was provided for under certain circum-
stances.125
The Code of Criminal Instruction’s fifth book (Duties of the Great
Court of Judicature) comprised provisions on re-appeal, extraordi-
nary re-appeal,126 and complaint (requête respectueuse).127 A re-appeal
could be filed with the Great Court of Judicature for violations of
law against preliminary examinations or a judgment. Extraordinary
re-appeals could be made by the Procurator General in case of exces-
sive punishment or against final sentences for non-punishable acts.
The requête respectueuse was filed in cases, which had already been
already adjudicated.128
Finally, Book VI dealt with the execution of judgments, rehabili-
tation, and amnesty.
122
123
See Art. 146 I Code of Criminal Instruction; this provision has not been
adopted by any of the later Codes.
124
Art. 329 I Code of Criminal Instruction.
125
Simultaneously with the Code of Criminal Instruction going into effect, the
Great Council of State temporarily prohibited by Decree No. 74 appeals in all
cases. This measure was made permanent in 1885. In the same year appeal became
permitted in misdemeanour cases, if the defendant deposited 10 Yen at the Court
upon filing for an appeal; Odanaka, note 13, at 128 et seq.; Ishii, note 76, at 522.
126
hijò hikoku
127
aiso
128
Tanaka, note 3, at 185; Odanaka, note 13, at 131.
4. The Meiji Code of Criminal Procedure129
Although the Meiji Code of Criminal Instruction had meant a big

step forward for the modernization of Japan’s legal system by abjur-
ing Chinese influence, soon after its enforcement many faults were
detected. Various provisions were everything but in unison with real-
ity, or were simply insufficient to be applied effectively. Therefore
numerous special laws had to be enacted to cope with these prac-
tical problems, and shortly after the enactment of the Code of
Criminal Instruction, work on a revision was taken up anew. In 1889
the Meiji Constitution130 was enacted, and so was the Law of the
Organisation of Courts,131 which dealt with the structure and organ-
isation of the courts. Since these legislations had been subjected to
German influence, a revision of the Code of Criminal Instruction
had by now become inevitable. The revised Code was enacted simul-
taneously with the ‘Law of the Organisation of Courts’ in 1890, and
renamed ‘Code of Criminal Procedure’.132
But as a matter of fact, since preparations had been made in a
haste, with the aim of quickly eradicating the most obvious contra-
dictions between the various legal provisions, the Meiji Code of
Criminal Procedure did not bring about any fundamental reforms,
as compared to the Code of Criminal Instruction. The biggest change
had been the removal of the provisions on the organisation of the
courts from the Meiji Code, and the rearrangement of the subject
matter of the Code. Some of the revisions, however, deserve to be
mentioned.
The Meiji Code of Criminal Procedure comprised 323 articles in
eight books on ‘General Provisions’, ‘Courts of Justice’, ‘The Inquiry
into, Prosecution, and Preliminary Examination of, Offences’, ‘Public
Trial’, ‘Recourse’, ‘Renewal of Procedure’, ‘Procedure Pertaining to
the Special Powers of the Supreme Court’, and ‘The Execution of
129
Hereafter: Meiji Code of Criminal Procedure, Meiji Code.
130
Nihon teikoku kenpò; for an English translation see e.g. H. Itò, Commentaries
on the Constitution of the Empire of Japan (Tokyo 1906).
131
Saiban-sho kòsei-hò; Law No. 8 of 1890, repealed by Law No. 59 of 1947;
Japanese Text: in Naikaku kanbò kiroku-ka [ed.], Genkò hòrei shùran, chù [Current Legal
Provisions Vol. 2] (Tokyo 1926) 1 et seq.
132
Keiji soshò-hò; Law No. 96 of 1889; enforced on 1 January, 1890; for an English
translation see J.E. DeBecker, Japanese Code of Criminal Procedure (Yokohama
1918).
696 procedural law
Judgments’. The Meiji Code of Criminal Procedure’s first books dealt

with structural and organizational aspects, and constituted no big
differences from the previous code. The second book comprised pro-
visions on the jurisdiction of the courts etc., and the third book reg-
ulated initial investigation, preliminary examination etc. Book IV had
the same function as it had under the Code of Criminal Instruction,
although doing away with unclear aspects, and Book V dealt with
general provisions for recourse. The sixth book comprised provisions
on retrial, the seventh dealt with the authority of the Great Court
of Judicature, and the eighth with the execution of judgments, reha-
bilitation and amnesty.
As regards the jurisdiction of the courts, one noteworthy change
was that, unlike in the Code of Criminal Instruction, a case could
now not only be examined or tried by the court of the place of the
offence, but also by the court of the place of the offender’s where-
abouts.133 Principally a higher court had the jurisdiction, but among
equal courts, the actual handling of a case fell to the court which
had been the first to initiate proceedings.134 Another difference from
the Code of Criminal Instruction lay in the fact that the judge no
longer had the authority to accept courtroom offences or private
actions without an indictment by the procurator. Without a procu-
ratorial indictment only flagrant misdemeanours and felonies, or
offences which were revealed during a trial, could be submitted for
a preliminary examination.135
The classification of the courts had also changed. Local and dis-
trict courts were now the courts of first instance, as provided in the
Law of the Constitution of the Courts. Local courts had the juris-
diction over police offences and minor misdemeanours, and district
courts over major misdemeanours and felonies.136
In the field of trial procedure various uncertainties had been
clarified, for instance it had been made clear that in trials at a local
court a confession was sufficient for a conviction, even if no further
evidence existed, as long as the procurator did not object.137 In district
133
Art. 26 Meiji Code of Criminal Procedure.
134
Arts. 25, 27 Meiji Code of Criminal Procedure.
135
136
Arts. 25, 212, 235 Meiji Code of Criminal Procedure.
137
Art. 219 III Meiji Code of Criminal Procedure.
court trials, however, further investigation was necessary, unrelated

to whether a confession of the accused had been obtained or not.138
As to the defence system under the Meiji Code of Criminal
Procedure, Art. 179 I granted the defendant the right to employ
counsel to plead for him. As in the Code of Criminal Instruction,
in cases of felony the presiding judge had to designate an advocate
ex officio, if the defendant had not appointed counsel.139 Unlike the
previous Code, however, the defendant had no longer the right to
change counsel.
No matter, whether a case was a felony, misdemeanour or a police
offence, the court could ex officio or upon motion of the procurator
appoint counsel, if the defendant was less than fifteen years old, a
woman, deaf or mute, suspected to be insane or mentally disturbed,
or if other circumstances existed which made counsel necessary.140
Furthermore, detailed provisions had been created as to how to
define ‘incidental offences’.141 Another newly introduced provision
was Art. 197 of the Meiji Code of Criminal Procedure, according to
which the court could cause the defendant to retire, if a witness was
unable to make a full statement otherwise.
The Code of Criminal Instruction’s system of recourse had under-
gone some changes, too. Whereas it formerly had consisted of protest,142
appeal, re-appeal, and requête respectueuse, now the protest, which under
the Code of Criminal Instruction could be made against a final deci-
sion of a preliminary examination, had been replaced by a com-
plaint;143 the requête respectueuse had not been adopted in the Meiji
Code of Criminal Procedure. Now an appeal could be filed against
a decision handed down by a local or district court in first instance
and against certain judgments, which had been pronounced prior to
the main case. A re-appeal was admissible against a decision of a
local or district court in the second instance, and also against cer-
tain judgments, which had been pronounced before the main case.144
Possible grounds for a re-appeal were violations of law, which were
138
139
140
Art. 179 a Meiji Code of Criminal Procedure.
141
142
koshò
143
Vide Art. 293 et seq. Meiji Code of Criminal Procedure.
144
698 procedural law
now interpreted as either a failure to apply a rule of law or as an

improper application of such a rule of law.145 The Code of Criminal
Instruction had already recognized as grounds for a retrial, if the
supposed victim of a homicide was found to be alive, in case of the
conviction of another person for the crime in question, if the accused
had an alibi, in case of the proof of false charges, or of forgery of
documents or error in the records. Art. 301 of the Meiji Code of
Criminal Procedure recognized on top of this as a ground for a
retrial, when a decision in a civil suit, on which the Court of first
Instance had based its decision, had been reversed or dismissed by
a higher Instance.146
5. The Taishò Code of Criminal Procedure147
The Meiji Code of Criminal Procedure of 1890 had been compiled

in a hurry, thus leaving the French structure of the Code unchanged,
incorporating only a small number of alterations and novelties.
Therefore, the necessity of a more fundamental revision was once
more felt soon after the enactment of the Meiji Code, and work on
a reform was taken up again in December 1895. The Justice
Department appointed the ‘Committee on the Inquiry on the Code
of Criminal Procedure’148 to complete this task. By 1898, the com-
mittee had completed a draft. But since upon a reform of the
‘Regulations for the Committee on the Inquiry on the Codes’149 in
the same year, the ‘Committee on the Inquiry on the Codes’150 had
obtained the competence of the revision of the Code of Criminal
Procedure, the Justice Department transferred its appointment to this
latter committee. In 1899 a draft bill was submitted to the Imperial
145
146
Retrial (saishin) upon request of the procurator for the first time had been
legally provided for in the Great Council of State Decree No. 8 of 1876 and
confirmed by Decree No. 49 of 1877. T. Odanaka/Y. Òda, Saishin hòsei no enkaku
to mondai [History and Problems of the Retrial System] (Tokyo 1980) 66.
147
Hereafter: Taishò Code of Criminal Procedure, Taishò Code; Japanese Text
in: Naikaku kanbò kiroku-ka [ed.], Genkò hòrei shùran, chù [Current Legal Provisions
Vol. 2] 468 et seq.
148
Keiji soshò-hò chòsa i’in-kai.
149
Hòten chòsa i’in-kai kisoku.
150
Hòten chòsa i’in-kai.
Diet, with the draft’s main point being the abolition of secret cham-
bers for detention as a prerequisite for the revision of the unequal
treaties. The Lower House then added provisions on the introduc-
tion of counsel during preliminary examination, but met opposition
from the House of Peers, which eventually caused the postponement
of such a reform until a general revision of the Code.151 The ‘Com-
mittee on the Inquiry of the Codes’ in March 1901 finally prepared
a reform draft,152 which, however, was never submitted to the Diet.
In 1903 the committee was abolished, and thus all reform work
discontinued temporarily.153
In 1908 the Justice Department entrusted the ‘Committee on the
Examination of the Laws’154 with the work on a reform draft. Within
this committee, a Chairman’s Committee155 was established to delib-
erate on a reform, based on the draft of the ‘Committee on the
Inquiry of the Codes’. As a result a final draft had been completed
in September 1918 and adopted by the Chairman’s Committee, but
before the draft could be adopted by the ‘Committee on the
Examination on the Laws’, the committee was abolished in July
1919, and the reform work once again came to a halt.156
Thereafter, in April 1920, the Justice Department established the
‘Committee for the Inquiry on a Reform of the Code of Criminal
Procedure’.157 On the basis of the earlier draft, the committee com-
pleted a provisional draft in July 1921. A final draft was finished the
following month, and was adopted by the committee’s plenary ses-
sion in September.158 The draft then was submitted to the 45th
Imperial Diet in December 1921, adopted, enacted in 1922,159 and
came into effect on 1 January, 1924 as the ‘Code of Criminal
Procedure’.160
As mentioned, the influence of German law had grown stronger
since the middle of the Meiji period, eventually overtaking French
151
Odanaka, note 13, at 104; 154 et seq.
152
Keiji soshò-hò sòan.
153
154
Hòritsu torishirabe-kai.
155
Shusa i’in-kai.
156
Tanaka, note 3, at 222; Odanaka, note 13, at 104 et seq.
157
Keiji soshò-hò kaisei chòsa i’in-kai.
158
159
Law No. 75 of 1922.
160
Otake/Maki, note 40, at 356; for further details see Odanaka, note 13, at
375 et seq.
700 procedural law
law, whose concept of civil rights was difficult to bring in unison

with Japan’s Prussian-influenced constitutional system.161 The various
legislative committees, following the trend of the time, had based
their inquiries mainly on the German law of criminal procedure.
Also the new Code clearly reflected in its four books and 632 pro-
visions the demands, which had been made by lawyers since the
1890s. Furthermore, it had incorporated the general spirit of liber-
alism and democracy of the 1920s by paying more attention to rights
of the accused before and during trial.162
With regard to counsel, a chapter on ‘pleadings and assistance’
was introduced to the Taishò Code of Criminal Procedure’s first Book,
and now the defendant could appoint counsel at any time after
indictment.163 Indictment now was defined as a ‘request for prelim-
inary examination or trial’,164 thus giving the defendant the right to
be represented by a counsel already from the stage of the prelimi-
nary examination. The main point of the Taishò Code of Criminal
Procedure in this field, however, was the broadening of the right of
defence.
According to Art. 344 I of the Taishò Code of Criminal Procedure,
cases in which counsel was necessary were those which were sanc-
tioned with capital punishment or at least one year imprisonment.
Here a trial could not be opened without counsel.
The court was to appoint counsel upon deliberation with the pro-
secutor, when the defendant was younger than 20 or older than 70
years, a woman, deaf or mute, insane or mentally deranged, or in
other cases, in which the court deemed counsel to be necessary.165
As to the competence of the counsel, he was given the right to
peruse and copy all evidence and documents related to the case,166
and all restrictions of the communication between the defendant and
his counsel after indictment were prohibited.167 In certain cases plead-
161
As exemplified by the Criminal Code, which had been first enacted in 1890,
based on French law, but had been revised under strong orientation on German
law in 1907; Takada, note 30, at 16.
162
Takayanagi, note 39, at 22.
163
Art. 39 Taishò Code of Criminal Procedure.
164
165
Art. 334 II Taishò Code of Criminal Procedure.
166
167
ing was to be independent.168 Stenographers had to take notes dur-

ing trial.169 Furthermore, the counsel had the right to be present
during confiscation or investigation by the court,170 as well as dur-
ing inspection,171 and expert statements.172 During trial the counsel
had the right to be present at the interrogation of witnesses, who
were difficult to summon,173 as well as at confiscation or investiga-
tion;174 and during a preliminary examination the counsel could
demand necessary depositions to be made,175 to see documents and
material evidence,176 and to be present at the interrogation of the
defendant177 or of witnesses.178 The counsel had the right to submit
documents or material evidence during preparation for trial,179 and
to interrogate the defendant, witnesses and experts during trial.180
He could state his opinion on evidence,181 and hold a final plead-
ing,182 or apply for appeal.183
The Code did not provide for any prerequisites for detention, and
the definition of flagrant offences was identical to that of the Code
of Criminal Instruction.
Indictment by the prosecutor had to be made in writing.184 During
the preliminary examination the prosecutor could repeal at any
time.185 Formation of the judge’s impression and investigation of evi-
dence were provided for as follows: after the completion of the pre-
liminary examination, the examining judge sent all documents of the
case to court, to enable the judge of the court of first instance to
receive all information and materials related to the case. Inquiries
168
169
170
171
172
173
Art. 302 I Taishò Code of Criminal Procedure.
174
175
Art. 303 III Taishò Code of Criminal Procedure.
176
Art. 303 I Taishò Code of Criminal Procedure.
177
178
179
180
181
182
183
184
185
702 procedural law
did not only start with the first hearing, but already upon indict-
ment, and the judge was allowed to interrogate the defendant prior
to the first hearing.186 Furthermore, documents could be examined,
and material evidence submitted by the prosecution, the defendant
or counsel.187 Moreover, witnesses could be summoned and ques-
tioned,188 and expertises, translations, confiscations, investigations or
inspections carried out.189 Thus the Taishò Code of Criminal Procedure
did not provide for the prevention of prejudices. However, the judge
did not only have access to all documents and evidence from the
opening of the trial, but if they were insufficient, he could investi-
gate additional evidence and information, and have the defendant
and counsel submit further material. Therefore the first hearing, after
the announcement of the facts of the crime, started with a detailed
questioning of the defendant.190 By the time of the first hearing, all
material at the hand of the court had been shown or read out.191
This investigation was public, and any material which had not been
subjected hereto, was not admitted as evidence.
6. Further Developments
It was also due to the liberalistic spirit of the Taishò period that in
1923 a Jury Act192 was enacted, providing for a certain democrati-
zation of the judiciary by allowing the participation of ordinary
citizens in the judiciary. Formed after the English model, a 12-member-
jury was established. But since the Meiji Constitution guaranteed all
Japanese subjects the right to obtain justice from professional judges,193
the jury was not authorized to decide on the guilt of an accused,
186
187
188
Arts. 324, 326 Taishò Code of Criminal Procedure.
189
190
Arts. 134, 135 Taishò Code of Criminal Procedure.
191
Arts. 340–343 Taishò Code of Criminal Procedure.
192
Baishin-hò; Law No. 50 of 1923; for further details see H. Satò, Das Schwurgericht
in der Vergangenheit und über seine Wiedereinführung ( Jury Trial in the Past and
on its reintroduction), in: D. Oehler [ed.], Strafrechtliche und strafprozessuale
Fragen aus dem japanischen Recht (Issue in Japanese criminal law and criminal
procedure) (Köln . . . 1982) 27.
193
Art. 24 of the Meiji Constitution read: “No Japanese subject shall be deprived
of his right of being tried by the judges determined by law.”
but its function was limited to decisions on matters of fact. The jury’s
verdict, however, could be overthrown by the court at any time.194
Eventually the prohibition of appeals against judgments in jury tri-
als as well as the high costs involved, led to the suspension of the
Law in 1943.195
But not only the Jury Act was doomed to failure, the Taishò Code
of Criminal Procedure, too, had difficulties in keeping up with the
intentions of the legislators. The disintegration of party politics, sup-
pression of democracy, the rule of the thoroughly feudalistic bureau-
cracy and eventually the nation’s route into militarism, ultranationalism
and eventually the Second World War, inevitably caused an author-
itarian interpretation and application of the Taishò Code of Criminal
Procedure. Not only party presentation was kept to the minimum
and simultaneously authoritarianism to the maximum, but also abuse
of the law could frequently be observed.196 The final blow to the
ideals and principles of the Code were dealt by the enactment of a
variety of special laws such as for example the ‘Peace Preservation
Law’,197 by which a special criminal procedure was established.198
The policy of aggression against China as well as several domestic
incidents related to the suppression of communism, set the signal
for the strict nationwide application of this Law and caused its
reform in the same year. It was further made clear by the reform
of the Jury Act in 1929, which excluded all offences against the
‘Peace Preservation Law’ from jury trials.199 In 1929, moreover, a
draft bill was completed, which provided for the separation of courts
and prosecution, thus preparing for the latter’s independence. In
February of that year, Justice Minister Hara attempted to realize
this separation by drafting a bill on the reform of a part of the ‘Law
194
Otake/Maki, note 40, at 357; Y. Noda, Introduction to Japanese Law (Tokyo
1976) 137 et seq.
195
Law No. 88 of 1943.
196
A. Idota, Keiji soshò-hò yòsetsu I [An Outline of the Law of Criminal Procedure,
Part I] (Tokyo 1964] 7.
197
Chian iji-hò; Law No. 46 of 1925; Japanese Text in: Naikaku kanbò kiroku-ka
[ed.], Genkò hòrei shùkan, chù [Current Legal Provisions, Vol. 2] (Tokyo 1926) 15 et
seq.; such law had been in effect in Japan since 1887 and had been revised sev-
eral times to meet conditions. By the 1920s the law provided for suppression of
anything that threatened “peace and order”. Hoyt, note 87, at 50.
198
Takada, note 30, at 16.
199
T. Odanaka, Keiji soshò-hò no shiteki kòzò [The Historical Structure of the Law
of Criminal Procedure] (Tokyo 1986) 4 et seq., 14, 251 et seq.
704 procedural law
of the Constitution of the Courts’200 and a draft for the ‘Public

Prosecutor’s Office Act’.201 The latter draft had for instance not only
provided for the introduction of secretaries of the procuracy,202 and
thus for the extension of the pro-secution’s power, but also expressly
stipulated the justice minister’s right to command of instituting a
public action. Strong criticism on the grounds of the draft’s contra-
diction against provisions of the Constitution, however, led to the
failure of the draft. Attempts to replace the system of preliminary
examination by an extension of the investigative authority of the
prosecution203 did not succeed either, because of strong opposition
by legal scholars and lawyers.204
From that time onwards, however, the militaristic tendency in
Japan grew continually stronger, and the policy of criminal proce-
dure as a tool for the maintenance of public peace and order, was
exemplified in various legislations as for instance the ‘Law for the
Preservation of National Defence’205 of 1941, thorough reforms of
the ‘Peace Preservation Law’ in 1928 and 1941,206 or the ‘Special
Wartime Criminal Law’207 of 1942. The ‘Law for the Preservation
of National Defence’, for example, provided for the prosecution hav-
ing the authority to summon, put in custody, interrogate, and detain
suspects in cases of certain crimes against national security, and fur-
ther gave him the power to conduct questioning of witnesses, seizures,
searches, and inspections. Moreover, the 1941 reform of the ‘Peace
Preservation Law’208 contained similar provisions on criminal proce-
dure, and the ‘Special Wartime Criminal Law’ provided for the
unlimited probative power of examining reports, no matter how they
had been obtained.209 These provisions were to last until the end of
the Second World War, which was the starting point for funda-
mental reforms.
200
Saiban-sho kòsei-hò-chù kaisei hòritsu-an.
201
Kensatsu-chò-hò-an
202
Kenmu kanji
203
As for example had been incorporated in the 1937 Law of Criminal Procedure
of the Japanese puppet state Manshuguo.
204
Odanaka, note 199, at 8 et seq.; Odanaka, note 13, at 16 et seq.
205
Kokubò hoan-hò; Law No. 91; for details see Odanaka, note 199, at 137 et seq.
206
For details see Odanaka, note 199, at 5 et seq.
207
Senji keiji tokubetsu-hò; Law No. XXX; for details see Odanaka, note 199, at
149 et seq.
208
Odanaka, note 199, at 202 et seq.
209
7. The Current Code of Criminal Procedure
In Article 10 of the Potsdam Declaration of 26 July, 1945, the United

States, Great Britain and China (the USSR joining on 9 August)
demanded: “. . . The Japanese Government shall remove all obstacles
to the revival and strengthening of democratic tendencies among
the Japanese people, freedom of speech, of religion, and of thought,
as well as respect for the fundamental human rights, shall be estab-
lished.” Japan accepted the Potsdam Declaration on 14 August, and
the War ended with Japan signing the Instrument of Capitulation
on 2 September, necessitating thorough changes in the nation’s
political and social structure to fulfill the demands of the Allied
Powers.
One of the primary aims of the Occupation was the democrati-
zation of Japan, which made fundamental reforms of the legal system
inevitable. One of the first undertakings in this field was the com-
pilation of a new constitution, which was promulgated on 3 November,
1946 and enforced from 3 May, 1947.210
In Art. 98 the Constitution states that no laws, ordinances, Imperial
rescripts or other acts of government, which were contrary to the
provisions of the Constitution were to have legal force or validity.
‘[W]ith the enforcement of [this new] Constitution, important
changes became necessary to the Code [of Criminal Procedure]. . . . in
the period before and after the issuance of the draft constitution in
1946, the Cabinet established an emergency committee211 within the
Cabinet and another one212 within the Ministry of Justice to study
the legal system; a counterpart committee was created within the
Ministry of Justice.213 The government then endeavored to embody
the reports of these committees in a draft law for a revised code of
criminal procedure’.214 However, since it became quickly obvious that
a revision of the Code of Criminal Procedure simultaneously with
the enforcement of the new Constitution was not going to be prac-
ticable, a ‘Temporary Measures Law Concerning Criminal Procedure
210
For an English translation see: EHS Vol. 7 No. 1000.
211
Temporary commission on the legal system; Rinji hòsei chòsa-kai.
212
Shihò hòsei shingi-kai.
213
214
706 procedural law
Pursuant to the Enforcement of the Constitution’215 was drafted and

put into effect in 1947. The purpose of this ‘Temporary Measures
Law’ was to adjust the legal provisions on criminal procedure to
the principles of the Constitution and to prevent the judiciary from
creating a legal vacuum by ruling out a number of provisions of the
Code of Criminal Procedure as unconstitutional. The ‘Temporary
Measures Law’ thus comprised provisions on the necessity of revis-
ing all articles of the Code, which stood in direct contrast with the
principles of the new Constitution.216 Following this, the second post-
war Diet enacted a completely revised Code of Criminal Procedure,217
which has been in force since January 1, 1949.’218 It comprises seven
books on general matters, first instance, appeal, retrial, extraordinary
appeal, summary procedure, and execution of decision.
The Code of Criminal Procedure thus had undergone a number
of radical changes on the initiative of the Occupation Authorities,
and the post-war influence of Anglo-American law is nowhere in
Japanese law as marked as here. First of all, the new Constitution
incorporated a number of provisions on procedural rights.219
One of the main reasons why the new Constitution had such a
great impact on the Code of Criminal Procedure, was that it includes
a whole catalogue of procedural rights. This marked a significant
change to the pre-war system, since not only had the Meiji Constitution
included only a few provisions on the rights of the Japanese sub-
jects—as compared to the considerable number of provisions on their
duties—and among those only Arts. 23–25 had dealt with proce-
dural rights, but in practice their application was even further restricted,
and abuses could be observed frequently. The new Constitution in
Art. 31 guarantees the due process of law, and Arts. 32–39 com-
prise a number of rights of the defendant: Art. 32 guarantees access
to the courts. Arts. 33 and 34 regulate apprehension and arrest; Art.
35 deals with searches and seizure; Art. 36 prohibits torture and
cruel punishment; Art. 37 guarantees the right on a speedy and pub-
lic trial and on counsel as well as the right to examine witnesses for
215
Nihon koku-kenpò no shiikò ni kansuru keiji soshò-hò no òkyù-teki sochi ni kansuru hòritsu;
Law No. 76 of 1947.
216
F. Aoyagi, Keiji soshò-hò tsùron, jò [:] (Tokyo 1962) 11.
217
Law No. 131 of 1948; for an English translation see EHS Vol. II No. 2600.
218
219
Arts. 31–40 of the Japanese Constitution.
the prosecution and to obtain defense witnesses. Art. 38 provides for

the refusal to testify, prohibits the admission of confessions made
under compulsion, torture or threat, and to base a decision solely
on a confession. Art. 39 prohibits double jeopardy and retroactivity,
and finally Art. 40 stipulates that any falsely accused may sue the
state for redress.
Since most of these provisions had been drafted under the strong
influence of the Occupation Authorities, based on Anglo-American
Law, the continental-style code had to be virtually turned upside down.
But nevertheless, some influence of German Law can still be found.
As to the procedure under the new Code, its first stage is inves-
tigation,220 carried out by the police and in a second step the prose-
cution.221 The state now has the sole right of indictment,222 private
actions are no longer permitted. The prosecutor has the authority
to decide whether to institute prosecution or not, taking into account
the offender’s character, his age and environment, the gravity of the
offence and the circumstances after the offence.223 The decision of
the prosecutor, whether to prosecute or not, however, can hardly be
controlled.224
As mentioned before, Art. 33 of the Constitution states that no
person shall be apprehended without a warrant issued by a judge
or upon commission of a crime.225 Furthermore Art. 210 of the Code
of Criminal Procedure permits emergency arrests, when a crime pun-
ishable with death, life imprisonment, or more than three years
imprisonment has been committed.
According to Arts. 203, 204 of the Code of Criminal Procedure,
an arrested suspect can be held by the police for up to 48 hours,
220
The institution of preliminary examination was abolished in 1947.
221
Arts. 189, 191 Code of Criminal Procedure.
222
Art. 247 Code of Criminal Procedure.
223
Art. 248 Code of Criminal Procedure; using their discretionary power, the
prosecutors have developed a highly thorough system of investigation, leading to
the consequence that only cases will be prosecuted, in which the prosecution is
absolutely sure of the guilt of the accused. Thus the acquittal rate of constantly
about 0.1% can be explained. See Saikò saiban-sho jimu sòkykou [General Secretariat,
Supreme Court] [ed.], Heisei go-nen shihò tòkei nenpò 2 keiji-hen (Annual Report of
Judicial Statistics, 1993, Vol. 2 Criminal Cases] (Tokyo 1993) 202.
224
There are, however, some special laws such as the ‘Law on the Prevention
of Subversive Activities’ Law No. 240 of 1952, which can be applied in case of
grave violations.
225
Also see Art. 212 of the Code of Criminal Procedure.
708 procedural law
after having notified the suspect of his right to remain silent226 and
to have counsel. Then the suspect has to be handed over to the
prosecution, where he can be held for another 24 hours, until when
the prosecution has to request commitment, which is to be set by a
judge for a term no longer than ten days, and can be expanded by
another ten days. If the prosecution does not institute charges within
this period, the suspect has to be released.227 There is no limit to
the period of detention after indictment.228
An accused can appoint a counsel freely at anytime, and the coun-
sel is entitled to peruse and copy all documents and evidence related
to the case.229 Art. 39 I of the Constitution guarantees the defen-
dant’s right to meet with his counsel without any official being pre-
sent, but a public prosecutor or policemen can designate the date,
time and place of such meetings.230 On the other hand, the counsel
does not have the right to be present during interrogations of the
defendant, conducted by the prosecution or police.231
Upon the prosecution having made an indictment, the case is
brought to court. In remarkable contrast to the Taishò Code, Art.
256 VI of the current Code of Criminal Procedure prohibits the
prosecution to attach any documents or evidence to the indictment,
to prevent prejudice on the side of the judge. The indictment is to
contain the name of the accused and other information about his
person, facts constituting the offence charged, and the offence.232
226
See Art. 38 of the Constitution.
227
Arts. 208, 208 a Code of Criminal Procedure.
228
This involves one of the greatest problems of post-war Japanese criminal pro-
cedure, since defendants are frequently detained in daiyò kangoku. This practice is
legitimized by the 1908 Prison Law (Kangoku-hò ) but criticized for infringing the
defendants’ rights to remain silent and to consult their counsel; see e.g. F. Igarashi,
‘Daiyò kangoku jittai-ron no kadai—Sakaguchi Tsutomu-shi no ‘daiyò kangoku no jittai’ ni kan-
ren shite [Practical Problems of Substitute Prisons—In relation with Sakaguchi
Tsutomus ‘The Reality of Substitute Prisons] (Tokyo 1978).
229
Art. 40; counsel is mandatory if a case is punishable by death penalty, life
imprisonment or imprisonment of three years or more, see Art. 289 I Code of
Criminal Procedure.
230
Art. 39 III; in practice this provision is interpreted as if such meetings needed
a permission of the prosecutor or police, and often meetings are restricted.
231
With detention seeming to be mistaken frequently for the purpose of extract-
ing a confession rather than the prevention of flight, it is not uncommon to arrest
and detain someone for a minor offence, and then interrogate him in connection
with a more serious crime. For details see e.g. Schmidt, note 32.
232
Art. 256 II Code of Criminal Procedure.
Trials are to be held in public, although usually defence and pro-

secution tend to agree on relying mainly on written documents,233
and the constitutional guarantee of a speedy trial is frequently dis-
regarded.
Unlike the inquisitorial pre-war trial, Art. 37 II of the Constitution
grants the defendant the right to examine all witnesses, and Art. 320
I of the Code of Criminal Procedure provides for cross-examination.
Hearsay evidence is principally not allowed,234 but the Code com-
prises a number of exemptions.235 The court has free discretion as
to the evaluation of evidence,236 but a conviction can not be made
solely on a confession.237 A judgment can be a conviction, ‘not guilty’,
acquittal, or dismissal.238 There is no separate procedure for sen-
tencing, and especially in severe cases, a lack of standardized crite-
ria can be observed.239
As to means of legal redress, Arts. 372–404 of the Code of Criminal
Procedure provide for appeal240 to a judgment of a court of first
instance, and Arts. 405–418 for revision241 against judgments of a
high court. Revision is made to the Supreme Court, and possible
on the ground of a violation or error in the interpretation of the
Constitution, conflict with precedents of the Supreme Court, or with
the pre-war Great Court of Judicature.242 Under certain circum-
stances the Supreme Court can quash the judgment of a High Court,
for example in case of violations of legal provisions, improper penalty,
existence of serious errors etc.243
Retrials244 are only permitted for the benefit of the convict, and
can be requested only on certain grounds as enumerated in the law.
Although Art. 435 of the current Code of Criminal Procedure lists
a number of possible grounds, for instance forgery or alteration of
evidence, or false testimony etc. in the original judgment, in almost
233
See Arts. 326 et seq. Code of Criminal Procedure.
234
235
Arts. 321 et seq. Code of Criminal Procedure.
236
237
238
Arts. 335–338 Code of Criminal Procedure.
239
See Schmidt, note 30.
240
kòso
241
jòkoku
242
Art. 411 Code of Criminal Procedure
243
See Arts. 410, 411 Code of Criminal Procedure
244
saishin
710 procedural law
all of the retrial requests so far, the grounds cited were ‘new definite
evidence’.245 After this provision had been initially interpreted very
strictly, the Supreme Court in 1975246 decided, it would be sufficient,
if new evidence would lead to ‘reasonable doubt’, thus applying the
principle of ‘in a doubtful case for the accused’.247
8. Conclusion
The domestic turmoils as well as the international political situation

forced Japan in the early years of the Meiji period to modernize its
legal system. This task was performed, for the lack of suitable indige-
nous material, by the adoption of western law. Being closest to the
Japanese spirit at the time, continental—initially mainly French, later
German—Law was chosen. The post-war reforms, however, were
based on the Anglo-American legal system, necessitated by the char-
acter of the new Constitution. Nevertheless, the Code of Criminal
Procedure still contains numerous traces of its continental origins,
and various institutions, which are essential to Anglo-American law,
such as the jury system, have not been adopted. Moreover, as one
of the most interesting points of the Law of Criminal Procedure in
Japan, the post-war Constitution includes a catalogue on procedural
rights, which can hardly be found in any other constitution in the
world, thus providing thoroughly for the guarantee of the rights of
the accused.
But as is the case with various other pieces of legislation in Japan,
theory and practice differ widely in the field of criminal procedure
too, with repeated complaints about violations of human rights because
of questionable treatment of suspects by police and prosecution, about
the interpretation of the provisions on the admissibility of evidence,
caused by cases of unlawfully obtained or withheld evidence, or by
the prosecution’s fear of ‘having lost’, if a retrial is granted.
245
Art. 435 No. 6 Code of Criminal Procedure.
246
Supreme Court Judgment, 20 May, 1975: 29 Keishù 177;
247
For details see Schmidt, note 32.
the courts of law, appendix: execution of penalty 711
9.4 The Courts of Law, Appendix: Execution of Penalty
Wilhelm Röhl
1. The Administration of Justice in 1867
In order to understand the historical development in a particular era

it is indispensible to have some knowledge of the conditions in the
foregoing times—not detailed but in essence. Therefore, we must
take a look on the administration of justice at the end of the Tokugawa
(or Edo) era that lasted from 1603 to 1867.
The mode of government may be called ‘feudal’.1 When the wars
between the heads of the clans (daimyò) for expansion of their terri-
tories and power came to an end at the beginning of the 17th cen-
tury, and the supremacy of the Tokugawa dynasty was stabilized for
250 years, the domains of the clans (daimiate, jap.: han) continued
in being though their autonomy was limited and their lords (daimyò)
could be “sacked and moved around as if they were ordinary officials”.2
In 1867 there were 266 han3 with a great majority of rural popula-
tion. The daimyò were bound by graduated vassalage to the Tokugawa;
the basis of their rule was land which they were entitled to admin-
ister and to make use of and pocket the profit. The people of the
domain were subject to their government. To control their territory
the daimyò maintained administrative organizations the officials of
which, hierarchically structured, supervised the people.
Administration included legislation, provided that the laws of the
clan did not contradict the laws of the central government (bakufu),
as well as judicature. The main characteristics of the judicature were:
(i) The judicature rested with the administrative offices.
(ii) Slightly resembling the federal states of our time the judicature
was the task of the central government and the regional (= han)
authorities respectively; in the Shogun’s demesnes shogunal agents
administered justice and there was a high court of the bakufu
1
The problem is discussed by C. Steenstrup, A History of Law in Japan Until
1868, at 72 (1991).
2
Steenstrup, (note 1), at 73.
3
R. Ishii, Nihon hòseishi gaisetsu [Outline of Japanese Legal History], at 404 foot-
note 4 (1960).
712 procedural law
(hyòjòsho), but administration of justice within the han was not

excluded.
(iii) The parties to a suit were treated differently according to their
class in society.4
(iv) In civil cases the way to an office of the bakufu was not open
for any kind of suits; the acceptance of a claim depended on
the importance of the case, the criteria of which were docu-
mented in a catalogue given by the government.5
(v) Dispensation of justice at the request of a party was not a duty
of the authorities but an act of grace.
The existing conditions, which could not be changed abruptly after
the restoration, gave rise to a complicated system of justice whereby
numerous offices and officials took an active part in mediating between
persons, deciding suits and sentencing criminals. It is not surprising
that the western powers which had concluded treaties with Japan
on open ports, mercantile activities and the right of settling, refused
jurisdiction over their nationals by Japanese authorities. The lack of
transparency of Japanese justice and the absence of any guaranties
under the rule of law, as the foreigners understood it, necessarily
induced the western parties to insist on extraterritoriality and con-
sular jurisdiction.
2. First Steps Towards a New System of Justice

The initial efforts to establish a modern judicature free from feu-
dalistic structures were marked by tentative attempts to organize the
government and by a change of personnel in quick succession.
On 10 February 18686 the Penal Law Administrative Section (keihò
jimuka)7 was set up in the Great Council of State (dajòkan). Two senior
4
Examples in Ishii, (note 3), at 472 footnote 4.
5
D.F. Henderson, Contract Practices in Tokugawa Japan, International Ency-
clopedia of Comparative Law, vol. VII, chapter 6, at 6–3 et seq. (1992).
6
The dates given in this chapter have been taken from various editions of Roppò
zensho (Compendium of Laws), quotations in relevant literature and occasionally
from Shihòenkakushi (History of Justice), Tokyo 1939, compiled by the Ministry of
Justice and edited by the Hòsòkai ( Jurists’ Association) on the occasion of the 50th
anniversary of the Saibansho kòsei hò (Law for the Constitution of the Courts). That
book contains historical records day by day (537 pages), a few charts, and a list of
judges and public prosecutors in high positions (280 pages). In some details the
dates recorded in the Shihòenkakushi differ from the dates given in the other sources.
councillors ( gijò ) were appointed directors, two junior councillors

(sanyo) were attached to the section which was responsible for all
matters concerning trials. Before the section could launch into any
activity advantageous to the judicature it was dissolved on 25 February
1868 and succeeded by the Penal Law Administrative Secretariat
(keihò jimukyoku)8 with the same responsibility and increased personnel.9
They started the compilation of the Kari keiritsu (Tentative Criminal
Provisions or Provisional Penal Code)10 continued by the Penal Law
Office (keihòkan) which succeeded the Secretariat on 11 June 1868.
The Tentative Criminal Provisions were not promulgated but they
indicated the intention of the government to strive for standardiza-
tion of justice and overcoming the subjective regional administration
of justice.
Renaming the sections, secretariats, offices or—as they could also
be called—departments were accompanied by shifts of personnel so
that men who had rendered outstanding services to the Meiji restora-
tion could be provided with title and ranks as an expected reward.
The difference is one or two days and may be explained by the fact that the
Shihòenkakushi reports the events within the Ministry of Justice. E.g. the Law for the
Constitution of the Courts was promulgated on 8 February 1890: Shihòenkakushi, on
10 February 1890: Roppò zensho. H. Kaneko, Saibanhò [Law of Judicature], at 50
(1959), follows the Shihòenkakushi, R. Ishii Meiji bunkashi, 2, hòseihen [Cultural History
of the Meiji Era, vol. 2, Legal System], at 404 (1954), agrees with Roppò zensho. It
can be concluded that the Ministry of Justice issued the law to be published on 8
February and that it was inserted in the Official Gazette or otherwise promulgated
on 10 February. Moreover, it should be added that the ‘History of Justice’ now
and then refrains from noting events which concerned the judicial system but did
not have their origin in activities of the Ministry of Justice.
The western calendar was not applied in Japan until 1 January 1873; the ear-
lier dates were transformed here into the western calendar according to the table
in Nihon kindai shi jiten [Dictionary of Modern Japanese History], edited by the
Literary Faculty of Kyoto University, at 825 et seq. (1958).
7
W.J. Chambliss, Japanese Legislation in the Meiji Era (adapted translation of
Ishii’s work, note 6), at 110 (1958), calls it “Section of Justice”.
8
Chambliss, note 7, at 111: “Office of justice”.
9
Generally, the number of staff of the offices was small. Even in the more
important Sections of Finance and of the Interior there were only 12 officials, see
Y. Someno, Saiban seido [ Judicial System] in Kòza Nihon kindai hò hattatsushi [Lectures
on the History of the Development of Modern Japanese Law], vol. 6, at 31 foot-
note 5 (1959). Someno cites from a biography of Takayoshi Kido that no achieve-
ments of those offices are known.
10
The exact date and government office of its origin is not precisely clear. The
Shihòenkakushi does not mention it, but the Penal Law Administrative Secretariat is
supposed to have had a hand in it.
714 procedural law
The Penal Law Office existed until 15 August 1869. There were
three spheres of activity: inspection, criminal justice, and arrest. But
the competence of the office, like that of its predecessors, was extremely
limited. The jurisdiction reached as far as Kyoto and its environs
only, and most cases of some importance went to the heads of the
government for decision. The competence of the office did not even
extend to all criminal proceedings; when a branch bureau of the
Penal Law Office had been established in Tokyo on 26 November
1868 the competence there was split under the order of 26 January
1869: the office had to deal with crimes committed by samurai, and
other persons were tried by the municipal authorities. Civil cases,
generally, did not attract the attention of the government; they were
sent to the Office of Finance if the local authorities regarded them
as difficult.
This organization of the judicature clearly indicated that jurisdic-
tion was a part of the administration and that executive officials had
to look after the tasks of judges. The proclamation of the division
of powers in the Seitaisho [Document on the Form of Government]
of June 1868 did not improve the situation.
The assignment of ‘inspection’, however, invested the Penal Law
Office with a wide competence: it was to control any governmental
executive department by travelling officials. But the government
thought this task so important that it revived the ancient danjòdai
(Board of Censors, Censorate) on 1 July 1869 and transferred the
job from the Penal Law Office to the Censorate, from where the
‘inspection’ returned to the Ministry of Justice on 24 August 1871.
The government and the central offices moved from Kyoto to
Tokyo on 5 April 1869. The moving did not manifest that the power
of the government had by now extended over all Japan. The main
part of the judicature still rested with the feudal lords of the han,
the continued existence of which hindered the development of national
unity in other respects as well. Of all the domestic policies the great-
est, most urgent and difficult commitment was the abolishment of
the rule in the feudal domains. The fu-han-ken-system11 was a first
step towards that end but it did not change the former structure
substantially. The judicature continued to be disconnected and com-
plicated although the Penal Law Office, differently from its prede-
11
See chapter 1.
cessors, had responsibilities described in detail. In addition to the

fact that its jurisdiction was limited with regard to region and cases,
it was exposed to the influence of other branches of the adminis-
tration, which in view of the exertion to strengthen the central power
were held in greater esteem by the government than the judicature.
The precedence of the executive over the judicature is well known
in absolute regimes; in the early years after the Meiji restoration it
was determined less by the system than by the actual struggle for
consolidation of the state’s authority.
The Penal Law Office seems to have been engaged in preparing
the unity of the judicature. Officials were charged to investigate the
penal law and the law of criminal procedure as well as litigation.
An outstanding act was the order of 31 December 1868 by which
torture of suspects was forbidden on special days: birthday of the
Tenno, coronation, commemoration of the first tenno Jinmu and the
two predecessors of the reigning emperor. If that order was applied
everywhere it would indicate a success, however trifle, on the way
to unification. On 31 May 1869 the prisoners in custody of the han-
authorities were subjected to directives from the Penal Law Office;
that was another step towards the administration of justice all over
Japan.
3. The Reorganization of 15 August 1869.
When, in July and August 1869, the feudal lords had surrendered
their domains to the crown and the national government had gained
formal control over the whole country, the central administration was
organized anew, the pattern for which was the ancient regime of
the 8th century.12 Within the government, the Department of Criminal
Affairs ( gyòbushò ) was established as the successor of the Penal Law
Office. Its responsibility was still limited to penal law. Civil law was
administered by the Department of Civil Affairs (minbushò, in 1873
renamed naimushò = Ministry of the Interior), and the third division
of justice was the Censorate outside the departments. The Censorate
had the task “to put the laws into effect, to safeguard the regulations
12
See chapter 1.
716 procedural law
and to prosecute wrongdoers”. As a supervisor—“the ear and eye

of the emperor”—the Censorate interfered also in the activities of
the Department of Criminal Affairs and other departments likewise,
and frictions were inevitable. The Censorate claimed the right to
correct decisions of the Department of Criminal Affairs so that the
competence of this department became still more limited than by
the continuance of regional dispensation of justice alone. But the
department rendered remarkable services as a legislator by compil-
ing the ‘Outline for the New Criminal Law’ (Shinritsu kòryò) of 9
February 1871.13 The imperial instructions about that had been given
on 10 November 1869 and expressly asked for lenient provisions.
As the Censorate also had to obey this law, the impression that it
arbitrarily meddled in the jurisdiction of the Department of Criminal
Affairs faded away. The law helped to strengthen the judicial com-
petence of the central government, since in 1869 autonomous legis-
lation in the territories subordinate to the government had been
forbidden and they had to submit draft sentences of death or depor-
tation to the Department of Criminal Affairs for decision. A num-
ber of feudal lords too applied those rules. Moreover, the government’s
competence increased by the growing habit of discontented peasants
to make complaints no longer to the regional authority but to the
Censorate and the Department of the Interior.
Civil cases were handled by the Department of the Interior when-
ever a case was difficult or affected matters of public significance.
Also in this respect the regional authorities gradually lost their inde-
pendence.
Through the reorganization of the administration and its effect
the centralization of the judicature made some progress, but it was
completed as soon as the feudal domains were abolished and incor-
porated into the system of prefectures.
4. The Ministry of Justice
On 24 August 1871 the Department of Criminal Affairs and the

Censorate were dissolved and the newly established Ministry of Justice
13
“1870” in chapter ‘Criminal Procedure’ corresponds to the old calendar according
to which the law was promulgated on the 20th day of the 12th month of Meiji 3.
(shihòshò ) took on the responsibility of both. This establishment kept

its name and function until 1947 and brought the various confu-
sions of the early Meiji years to an end. When, on 29 August 1871,
the political preparations made it possible for the government to
issue the Imperial Edict Announcing Abolition of Domains and
Creation of Prefectures,14 the way was open to a unified judicial sys-
tem. The Minister of Justice15 had to exercise general control, imple-
ment the laws, explain the regulations, give judgements in criminal
and civil cases, and execute arrests. Thereby, the variety of juris-
diction of civil and criminal cases ended. But it proved difficult to
take over the jurisdiction to which the regional authorities were enti-
tled hitherto, particularly as the government failed to support the
undertaking. Since the government used all its strengths to realize
the programme ‘wealth and military power of the State’ ( fukoku
kyòhei ), the judicature came second or even worse and consequently
the executive—administration of the prefectures by the Ministry of
Finance and local officials—had absolute priority. Until the middle
of 1872 the Ministry of Justice could secure its authority in Tokyo
and its environs only. On 2 October 1871 the judicial competence
of the Tokyo municipal administration was assigned to the Ministry
of Justice, which sent its officials to the municipal authorities to do
the job until, on 5 February 1872, a division called the Tokyo Court
(Tòkyò saibansho) was set up within the Ministry.
Here, for the first time, the word saibansho was applied to an organ
of jurisdiction. ‘Saibansho’ (literally: place of decision) at the begin-
ning of the Meiji era meant an office of the administration, and
saiban was a decision in general government business. For instance,
the Court of Accounts was named ‘kaikei jimu saibansho’, the prede-
cessor of the Ministry of Finance. Also, in the districts controlled by
the central government (afterwards fu and ken) the highest adminis-
trative authorities were called ‘saibansho’; they were first established
at the beginning of 1868 in twelve districts, but the term ‘saibansho’
for these vanished before long. The heads of the said authorities
were ‘hanji’, later on this word was used only for judges of the
14
English text in Chambliss, note 7, at 717.
15
A minister was appointed no sooner than on 2 June 1872. Until then the vice-
ministers Takayuki Sasaki and, after his departure to Europe in the entourage of
T. Iwakura in December 1871, Tamaki Shishido were the heads of the Ministry
of Justice.
718 procedural law
lawcourts.16 Within departments of the government, too, there were

functionaries entitled ‘hanji’.17 The use of saibansho and hanji for law-
court and judge in the modern sense is reminiscent of the origin of
the judicial system in the executive.
The fact that the Tokyo Court was a division of the Ministry of
Justice shows that jurisdiction was still a section of the executive.
About the same time the tasks of arrest and the administration of
the prisons were allotted to the regional authorities. Another judi-
cial institution was founded as the ‘Tokyo Court for the Open
Markets’ (Tòkyò kaishijò saibansho) within the Tsukiji18 tax office. Officials
of the Ministry of Justice were sent there to handle civil cases in
which foreigners were involved; formerly, these cases had been dealt
with by the municipal authority.
Two events of major interest in the first year of the Ministry of
Justice should be mentioned.
(i) On 9 November 1871 the Ministry established a law school
called Meihòryò, which was provided with a management and teach-
ers. They had to train young jurists, the demand for whom increased
in view of the aim of unifying the justice. One subject of instruc-
tion was French law, and the first foreign teacher was Henri de
Riverol of France who was taken into employment on 8 August
1872. There were places for twenty students. The law school also
attended to explaining the regulations and played a role in filling
gaps in the yet incomplete system of laws. The law school was abol-
ished on 4 May 1875; its business was carried on by divisions of the
Ministry of Justice.
(ii) A spectacular trial was held in January 1872. The court noble
Michiakira Otagi had been appointed junior councillor after the
restoration but immediately afterwards retired. When in 1870–71 the
opposition to the new government increased, and especially in Northern
Kyùshù the discontented samurai became agitated, he, conspiring with
others, planned to raise troops and ask the Emperor to come back
to Kyoto. While they prepared the insurrection they were arrested.
16
M. Watanabe, Genkò hòritsugo no shiteki kòsatsu (Study of the History of the
Present Legal Terms), at 270 (1930).
17
See Kan’i sòtò (Equivalence of ranks and titles) in Tòkyò teikoku daigaku shiryò hen-
sanjo, Dokushi biyò [Requisite for Reading History], at 536 (1942).
18
District of Tokyo, site of the foreign concession.
On 12 January 1872 Otagi was sentenced to take his own life by

disembowelment, five other persons to be beheaded, eight to impris-
onment for life and more than 130 conspirators to imprisonment for
up to ten years. The Emperor to whom a report on the case had
been submitted had issued a special order as to the outcome of the
trial. Jurisdiction was not yet free from external influence.
5. The Reform Launched by Shinpei ETò
Shinpei Etò, 1834–1874, came from the Saga clan which already
prior to the Meiji era had welcomed a knowledge of western coun-
tries as a means of developing absolutism, and similarly to the
Satsuma-clan stood for the fall of the bakufu. Etò too was full of
progressive spirit during his political career. He was Secretary of
State in the Ministry of Education, Vice-President of the Left Chamber
and became Minister of Justice on 2 June 1872. When he took up
this office he was confronted with the problems described above: the
jurisdiction of the regional authorities and its inclusion in the exec-
utive. Etò tried determinedly and firmly to do away with these obsta-
cles to the installation of a modern system of justice. After four weeks
he achieved a new definition of the responsibilities of the Ministry:
unity of the courts of law under the Ministry and handling of all
cases by these courts, reports on cases which had to be judged by
the emperor, general control including promotion and degradation
of judges by the minister or vice-minister, drafts of new laws, deci-
sion when a court was in doubt about a matter, deliberation and
judgement on misdeeds of judges, deliberation and judgement of a
court on crimes affecting the government by consent of the minis-
ter or the vice-minister only. So, no institution other than the courts
of law, all of which were now in the sphere of the Ministry of Justice,
was entitled to dispense justice—except for cases to be submitted to
the emperor or affecting the government. At the same time Etò
asked the government to take steps to withdraw the judicial offices
from the prefectures. In the main, from now on the influence of the
executive on the judicature was averted.
The new definition of the responsibilities of the Ministry of Justice
was followed by a decree of the government called Shihòshò shokusei
shòtei, afterwards renamed Shihòshò shokumu teisei [Office Regulations
for the Ministry of Justice] of 5 September 1872. They consisted of
720 procedural law
108 articles in 22 chapters and covered all manner of judicial busi-

ness. The decree dealt with the order of the Ministry, with judges,
public prosecutors, local police, arresting officers, scribes, advocates,
law courts, the Law School and matters of jurisdiction. The Ministry
was commissioned to administer national legislation and control the
courts. The Regulations were meant to be provisional, but that was
merely out of consideration for the top politicians Kido, Iwakura
and Òkubo, who were abroad.19 The fact that in spite of the absence
of these men the decree was issued indicates a vigorous insistence
on the part of Etò.
Under the decree there were five kinds of law courts, namely
Justice Ministry Court Extraordinary (Shihòshò rinji saibansho), Justice
Ministry Court (Shihòshò saibansho), Circuit Court (Shutchò saibansho),
Prefectural Court (Fuken saibansho), and Local Court (Ku saibansho).
1. The Justice Ministry Court Extraordinary “conducted trials for
cases of vital importance to the state and those involving offences
committed by judges”, art. 44.20 The court was opened only when
occasion demanded and was constituted by judges appointed ad hoc.
Under the name ‘Court Extraordinary’ (Rinji saibansho) this institu-
tion became a special section of the Supreme Court in 1875.
2. The Justice Ministry Court had to decide on re-appeals from
Prefectural Courts, art. 47, and civil and criminal cases which were
too difficult for the lower courts, moreover—when authorized by the
Minister of Justice—to examine offences committed by officials of
high rank or by members of the peerage, arts. 48, 49. Cases in
which the legal interpretation was doubtful or which were too difficult
for the Court had to be referred to the Ministry of Justice itself, art.
50. The presiding judge of the Justice Ministry Court was the Minister
of Justice, art. 46.
3. The Circuit Court had the same competence as the Justice
Ministry Court. Circuit courts were established for a couple of remote
prefectures each, art. 54. The courts of the prefectures near Tokyo
were under the control of the Justice Ministry Court directly.
4. Prefectural courts were founded in every prefecture. They han-
dled criminal cases if the penalty did not exceed deportation. Capital
19
Someno, note 9, at 69 footnote 5.
20
On 10 December 1873 its jurisdiction was extended to appeals against deci-
sions of the Justice Ministry Court as the court of the first instance.
crimes, doubtful cases at law and offences which resulted in divest-

ment of court rank had to be submitted to the Ministry of Justice,
arts. 58, 59. In the prefectural court there were four divisions: civil
cases (shòshò), criminal cases (dangoku), management (shomu), treasurer
(suitò). Decisions of the prefectural court could be appealed against
on questions of law to the Justice Ministry Court via the public
prosecutor.
5. Local courts were established in the districts of the prefectural
courts if necessary. They could pronounce sentences up to and includ-
ing whipping with the rod, and in civil cases pass judgement up to
a total of 100 ryò,21 arts. 69, 70. The four divisions were like those
of the prefectural courts. The rules for the Tokyo local courts of 1
May 1872 were included in the Office Regulations for the Ministry
of Justice.22
A survival from the past was preserved: the claimant was obliged
to present the particulars of the petition to the local authority in
order to obtain a stamp of cognizance. Thereafter he was allowed
to submit the petition to the court.
The public prosecutors had to obey the directives of the Minister
of Justice. Their responsibility was “to protect the law, to support
righteousness, eliminate wrongness and examine the correctness of
judgements”.23 In June 1873 the authority of the public prosecutors
was enforced, they were entitled to ensure ex-officio that all the rel-
evant facts of a civil case were clearly presented.
As soon as the Office Regulations for the Ministry of Justice had
been issued, law courts as provided for by the decree were estab-
lished in quick succession. At that time there were 3 municipal pre-
fectures ( fu), namely Tokyo, Kyoto and Osaka, and 72 rural prefectures
(ken). As might be expected it was impossible to set up courts in each
region in a short time. At the beginning, prefectural courts ( fuken
21
Ishii, note 6, at 217. In 1871 the monetary system had been reformed and
one new yen was treated as equivalent to one old ryò.
22
Someno, note 9, at 63. The Shihòenkakushi, note 6, did not mention those rules.
An entry under the third month of 1872 states that six residences of former feu-
dal lords and two premises of the bakufu were allotted to the Ministry of Justice for
use. According to Someno, note 6, at 58 footnote 6, for every two of the six dis-
tricts of Tokyo a local court was set up at that time.
23
Decree of 5 September 1872. For more details see chapter ‘The Public
Prosecutor’.
722 procedural law
saibansho) were founded and named after the denomination of the

prefecture. Three months later there existed 16 prefectural courts,
including the Tokyo Court which had been established on 5 February
1872. In some districts of those prefectural courts local courts were
set up, to the number of 14.
There were not enough judges for the 30 courts. The Ministry
had to fall back on those officials who up to now had dealt with
minor judicial matters in regional institutions.24 In their function as
judges of the courts of law they were called tokibe.25 They were of
lower rank than judges and had less power. The position of tokibe
was abolished on 4 May 1875.
Another problem arose when the judicial business was to be handed
over to the Ministry of Justice. The prefectural authorities offered
resistance to the matter, and it required a directive of the govern-
ment to the Ministry of Finance controlling the prefectures that the
pending cases had to be delivered to the Ministry of Justice. The
regional officials up to now having dispensed justice were shocked
by the new situation and disapproved of it. When, on 7 November
1872, the Kyoto Prefectural Court was opened and officials of the
Ministry of Justice appeared in Kyoto to take over business, the local
authority refused by reason of the directive relating to this not yet
having arrived. When the obstacle had been removed the Kyoto
officials still emphasized that the robbery of their rights could not
be justified.
Moreover, the heads of foreign missions complained that, by the
establishment of prefectural courts in Kanagawa and Hyògo, the
privilege of the foreign representatives under former treaties to give
advice to the regional governors on judgements in case of involve-
ment of foreigners had become inoperative. The annoyance calmed
down in 1873.26
Also among the members of the government there were differences
as to Etò’s endeavour to strengthen the position of the judicature.
24
In their home posts they were tenji or gontenji, verbally: persons who manage
affairs and their assistants. Those posts had been created in January 1870 in the
municipal prefectures and in 1871 in the rural prefectures.
25
tokibe = persons who had to clear (the facts of a case) were employed also by
the Department of Criminal Affairs (gyòbushò) since August 1869. Their duty there
was to examine the case closely and prepare the judgement.
26
Someno, note 9, at 72 footnote 16.
As mentioned above the Ministry of Finance had to be directed to

act in accordance with the new order. At the end of November 1872
the Ministry of Justice founded six additional prefectural courts, but
they could not be opened because the Ministry of Finance curtailed
the funds for the administration of justice. Etò handed in his res-
ignation; other high officials went along with him. The government
got into a crisis and instructed the junior councillor Shigenobu Òkuma
to investigate the financial situation. He argued that the demands of
the Justice Ministry should be complied with, and so it was done.
Etò was appointed State Councillor (sangi ) and admitted to the inner
circle of the government, which consisted of the head of the gov-
ernment (dajòdaijin), the Minister of the Right (udaijin), the Minister
of the Left (sadaijin) and the state councillors who had to give sup-
port to the chiefs of the special ministries and partake in determi-
nating the national policy. Etò remained Minister of Justice, his
resignation and that of the other officials were settled. Etò’s author-
ity had been made stronger by this incident.
The Ministry continued to set up courts of law. In order to pro-
vide a sufficient number of courts for the populace the prefectural
courts had established branch courts; these were renamed local courts
in December 1872. Police affairs which had been assigned to the
regional authorities in October 1871 became a part of the Ministry
of Justice, since, under the decree of 5 September 1872, prosecution
of crimes and arrest of suspects had been defined as the responsi-
bility of the public prosecutors attached to the prefectural courts.
Etò originated the administration of justice in open court. First
of all, on 4 July 1872, representatives of the press were permitted
to be present at trials and hearings in the Justice Ministry Court
and the Tokyo (Prefectural) Court. On 5 December 1872, the heads
of the local authorities and their deputies, and in January 1873 the
officials of the prefectures and of the Ministry of Justice, as well as
the students of the Law School, got permission to attend. No sooner
than in 1875 all Japanese nationals and foreigners were admitted,
at first to hearings of civil cases only.
From 28 December 1872, anybody was allowed to go to a pre-
fectural court or the Justice Ministry Court respectively if he had
cause for complaint against an action or order of a regional author-
ity or mayor by which his rights were restricted, or if he wished to
appeal against the judgement given by a prefectural court or a
regional authority.
724 procedural law
Jurisdiction in criminal cases passed from the Tokyo Court for the
Open Markets to the Tokyo Prefectural Court on 13 February 1873,
civil cases followed in July 1875. Thereby, an ordinary law court
became responsible also for cases in which foreigners were involved.
All of Etò’s measures aimed to unite the judicature organizationally
and entrust it to the courts of law exclusively, to make jurisdiction
transparent and open access to the courts for anybody, to have only
the Ministry of Justice control the judges and public prosecutors, and
to see to it that the Ministry had the right to a say in legislation.
However, Etò did not succeed in doing away entirely with the juris-
diction of the regional authorities and finally preventing interference
by the Ministry of Finance which controlled the prefectural admin-
istration. When disturbances broke out in four prefectures at the
beginning of 1873, the Ministry of Finance granted the regional
authorities the right to take “measures appropriate to the situation
by a summary trial”. Officials of the Justice Ministry were sent to
two of the prefectures in order to deal with the affairs, but in the other
two prefectures officials of the regional authorities or of the Finance
Ministry issued directives without contacting the Justice Ministry.
When, in 1873, an anti-Japanese incident occured at Phusan in
Korea, the previously discussed issue of a military invasion of Korea
was put on the agenda again. At the request of field marshal Takamori
Saigò the government resolved to invade Korea. The Minister of
the Right Tomomi Iwakura, returning from a journey abroad,
opposed the resolution and it was not carried out. Etò had joined
the politicians who supported Saigò’s motion. He resigned on 24
October 1873 and other ministers followed suit around that date.27
6. Before the Reform of 1875
Prior to Etò’s resignation the executive had already set about enforc-
ing its traditional precedence over the judicature and not allowing
27
Etò returned to his home prefecture Saga, put himself at the head of groups
of conservative samurai who were discontented with the new conditions and stood
for the invasion of Korea. In 1874 he had rallied about 3,000 supporters around
himself and prepared for battle. Government troops suppressed such actions imme-
diately and arrested Etò. A court extraordinary condemned him to death and expo-
sure of his head on 13 April 1874. Posthumously, the amnesty on the occasion of
the promulgation of the Constitution in 1889 was granted to him too.
the achievements of the vigorously progressing Minister of Justice to

thrive too well. At the centre of the resistance to emancipation of
the judicature prevailed the members of the Chòshù clan, who were
strongly represented in the government. They were particularly dis-
pleased at the fact that the subjects had been permitted to denounce
illegal actions of regional officials in court. So it happened that the
Dajòkan shokusei (Service Regulations for the Government) of 2 May
1873 said: “Generally, officials of the government28 will supervise the
proceedings in important court cases by giving advice or being pre-
sent at the Court Extraordinary”. Also in 1873 an official of the
Kyoto prefecture was charged with wrongdoing and arrested.29 A
Court Extraordinary was established. The Kyoto prefect demanded
that the Ministry of Justice create regulations on the participation of
lay judges in order that government functionaries might give their
judgement on the case. The Ministry of Justice refused to do so,
and argued that in western countries lay judges were elected from
among the people and public servants could not act as lay judges;
for officials to be appointed lay judges in a trial against an official
would be seriously contradictory to the law of all nations. However,
in disagreement with the Ministry of Justice the government issued
the Sanza kisoku (Rules on Participating) on 9 October 1873: “The
participation of lay judges has been deliberated on and resolved at
an extraordinary cabinet meeting. The lay judges are to be appointed
from among the civil servants”.30 The Rules were the first regula-
tion about laymen—in the sense of their not being professional
judges—as judges. It has already been mentioned above that officials
of the executive sometimes had to administer justice.31
28
Here the word naikaku = ‘cabinet’ was used; it became meaningful under con-
stitutional law no sooner than in 1885.
29
‘Case of the Ono-group’. The official was accused mainly of having delayed
the permission to move the headquarters of the commercial and financial business
house of the Ono-group from Kyoto to Tokyo. The Ono were an old family of
merchants. At the end of the 17th century they dealt in imported wild silk, the
trade in which was monopolized. Later on, they were exchange brokers and sup-
ported the Meiji regime financially.
30
Someno, note 9, at 76 footnote 33. Typically, the issue was not mentioned in
the Shihòenkakushi (note 6) since the Rules were not made by the Ministry of Justice
and the Ministry had not come out of the matter very well.
31
The Rules were renewed in February 1875 just for show with respect to a
single case. In 1871 the State Councillor Saneomi Hirosawa had been murdered
but the murderer not been found. In order to avoid criticism of the investigation
726 procedural law
In the Ono-group case in question the Court Extraordinary opened

on 12 October 1873. The presiding judge was a judge of the third grade
( gondaihanji ), lay judges were a fifth-grade official of the Ministry of
Justice, a fifth-grade teacher of the Law School, a third-grade official
of the Central Chamber of the government and a fourth-grade official
of the Left Chamber. As might be expected the accused, although
found guilty, was sentenced only to a fine32 on 31 December 1873.
The executive had an influence on other trials at that time. The
case of the Osarizawa mine in which the Vice-Minister of Finance,
Kaoru Inoue, was involved was hushed up after the resignation and
finally the death of Shinpei Etò, and in 1875 the Tokyo High Court
acquitted the accused.33—The Sankurò Mitani case was about mis-
appropriation of public money of the Ministry of War. The Mitani
house had handled the financial affairs of the old regime (bakufu) and
the Chòshù daimiate. After the restoration the Mitani were engaged
to administer the budget of the army. Sankurò Mitani, a young
man, had been appointed agent for the enterprise. He speculated in
oil in Osaka with the money in his trust, lost it and made a hole
of 300,000 ¥ in the ministry’s budget. The ministry resisted an inves-
tigation. About the same time a case of corruption occurred in the
Ministry of War. Wasuke Yamashiroya, a merchant acting on behalf
of the Ministry, improperly received from the Vice-Minister Aritomo
going on and on without result the government established a court extraordinary

of officials as lay-members and thereby demonstrated its determination to urge that
the murderer be brought to trial. Of course, there is just as little ground for call-
ing this court a court with jury as in the case of the Ono-group (Someno, note 9,
at 79).—Except when an official was accused the court extraordinary was consti-
tuted of professional judges only, e.g. in the trial of the persons who had attempted
to murder and wounded the Minister of the Right Tomomi Iwakura on 14 January
1874.
32
Aganaikin, actually not a penalty but a kind of ransom by which the accused
evaded punishment.
33
When the domains were abolished and the prefectures established in 1871 and
the Ministry of Finance, managing the claims and debts of the domains, regulated
the affairs of the Nanbu daimiate (Akita prefecture), it enforced against M. Murai
who held the mining concession the seizure of an acknowledgement given to the
daimiate as a bond of debt, and urged Murai to pay the compensation. Moreover
the ministry confiscated the mine and sold it to a businessman with political affiliations.
In the background of this stood Kaoru Inoue. Murai lost his case in the Sakata
Court of Appeal. By order of Shinpei Etò the Ministry of Justice in 1873 initiated
an investigation which perturbed high government officials. Besides Kaoru Inoue
also Eiichi Shibusawa was accused and acquitted. At that time Shibusawa was an
official of the Ministry of Finance, later on the most famous industrialist and banker
of the Meiji and Taishò era.
Yamagata a large sum of money belonging to the Ministry’s funds.

He used the money to his own advantage. That was discovered when
Yamashiroya led a lavish life in Paris. After his return to Japan he
killed himself. When in April 1873 the Justice Minister Etò made
a close inquiry Yamagata didn’t have any choice but to resign. The
case was never brought to a close. Both cases34 had serious political
implications, and the Ministry of Justice did not have enough power
to institute adequate legal proceedings.
The impetus Etò had brought to bear on the development of the
judicial system withered away under his successors. Etò was followed
by Takato Òki who held office until 28 February 1880. He was a
more moderate politician. The progressive Vice-Minister Takachika
Fukuoka was succeeded by the conservative Takayuki Sasaki on 15
January 1874. However, the foundations for a modern judicature
laid by Etò proved to be solid and continued to have an effect,
although the government tried to reduce the field of activity of the
Ministry of Justice. The competence of the minister was curtailed
by his being relieved of the presidency of the Justice Ministry Court
on 10 December 1873. That did not mean the separation of the
court from the administration. On the contrary, the influence of the
executive had been intensified by the above mentioned competence
of the Court Extraordinary,35 members of which were laymen appointed
from among administration officials, as court of appeal against judge-
ments of the Justice Ministry Court. Moreover, the task of the judi-
cial police which Etò had taken over from the regional authorities
was transferred to the Ministry of the Interior on 9 January 1874,36
and on 28 January 1874 the authority of the public prosecutors was
lessened. The government decreed: “It is the duty of the public pros-
ecutor to enquire into crimes which have already been exposed. The
public prosecutor will not interfere in preventive measures of the
police in case of crimes not yet cleared up” and “The public pros-
ecutor is the accuser entitled to demand punishment, he is not allowed
to conduct the trial. He may not discuss the propriety of the penalty
with the judge”.37 The public prosecutor also lost the right to
34
Mitani Sankurò jiken and Yamashiroya (Wasuke) jiken, see Nihon kindaishi jiten
(Dictionary of Modern Japanese History) (1959).
35
Note 20 and 30.
36
And from there to the regional authorities again in October 1874.
37
Someno, note 9, at 78.
728 procedural law
act in civil cases. So it was more difficult for the Minister of

Justice to supervise the judicature by means of directing the public
prosecutors.
Thereby “evil practices were washed away”38 according to the
wishes of the government, which was dominated by the clan factions.
When the Saga uprising led by Shinpei Etò39 was being quelled
the executive usurped judicial power and instructed the Senior
Councillor Toshimichi Òkubo “to take emergency measures—even
impose death sentences” and later on pronounced “to sentence the
rebels to death”.
Nevertheless, there was some progress in the time from Etò’s res-
ignation to the reform of 1875. (i) Step by step a system of appeals
got into fair order.40 (ii) On 2 September 1874 provisional rules on
suits of subjects against the central government, a ministry, an official
or a prefecture were issued by which the feasibility to sue authori-
ties, introduced by Etò, was upheld and put in concrete terms. (iii)
The position of the judges was probably enhanced when on 20 May
1874 ‘Rules for the Supervision of the Courts’ threatened with pun-
ishment persons who were lacking in respect for a judge or abusing
him. (iv) The decree by which the court extraordinary concerning
the murder of Saneomi Hirosawa was established in February 187541
included a regulation about the counsel for the defence. It was the
first rule of the principle of defence at the trial. The defence coun-
sel was appointed by the court; there was no contract with the
accused. Not being entitled to give an opinion on points of law his
responsibility was limited to factual issues.42
Apart from the somewhat complicated structure of the legal sys-
tem and the organization of the courts, the traditionally most impor-
tant institution of the people’s attitude to legal matters, the resolving
of dissensions by means of mediation, remained unaffected. Mediation
(or conciliation, see footnote 24 in the chapter ‘Law of Civil Procedure’)
was a product of the feudal-hierarchic order of society and inte-
gration of the individual into a group based on family connection,
38
39
Above note 27.
40
Pp. 662, 688.
41
Above note 31.
42
Nihon Bengoshi Rengòkai, Nihon bengoshi enkakushi [Union of the Japanese Bar
Associations (ed.), History of the Japanese Lawyers], at 36 (1959).
neighbourhood, and profession. Particularly in rural communities, in

which most people lived, conciliation was practised principally. It
meant that after having in vain tried to settle the quarrel by them-
selves the parties had to turn to the local authority for mediation or
decision. He who did not agree with the resolution could go to court
when the seal of the mayor had been affixed to the petition. By this
procedure institutions of the state or the regional administration were
preserved from having to deal with an overabundance of private
quarrels. The social and economic position of the parties played a
part in the proceedings at the local level and often led to pressure
or compulsion on one side or the other to come to an agreement
regardless of the legal position. To cause the reform of the judicial
system to take root in the populace it needed to be accompanied
by freeing the subjects from that pressure and giving them equal
rights. But the local conditions were not yet changed by the abol-
ishment of the domains and establishment of prefectures. The require-
ment of the mayor’s seal was repealed in December 1875, but the
way of mediation on the spot continued and today it is still a well-
known characteristic of Japanese legal life that people tend to avoid
litigation by serious endeavours for agreement outside court.
7. The Reform of 1875
As an outcome of the Osaka conference43 the Supreme Court of

Justice (taishin’in) was instituted on 14 April 1875. The first chief
justice—from 13 September 1878 ‘President’—was Seiri Tamano.
There was a chamber each for civil and criminal matters. Below the
Supreme Court four high courts ( jòtò saibansho) were founded: Tokyo,
Osaka, Nagasaki, and Fukushima. Under them each prefecture had
a prefectural court ( fu/ken saibansho) and several local courts (kusaiban-
sho). The Justice Ministry Court was abolished. The Supreme Court
had to deal with appeals on questions of law, to quash judgements
of lower courts which were contrary to law, and to safeguard the
conformity of law in the whole of Japan. Moreover, the Supreme
Court was the tribunal for offences committed by judges—except
43
See chapter 1.
730 procedural law
minor infringements—and as the only instance for serious political

crimes,44 as well as for important civil and criminal cases to which
foreign law was applicable. Furthermore, the Court had to check
the death sentences imposed by the high courts and, in the case of
disapproval by the assembly of all the judges, refer the case back
and explain the law to be applied. If the Supreme Court as the
court of re-appeal quashed a judgement it would refer the case to
another court, but it was entitled to pass judgement itself as well. If
the court to which the case had been referred was not willing to
follow the arguments of the Supreme Court, a decision by all its
judges was necessary.
Because of the rapidity of the first steps to institute a powerful
government, the multitude of necessary rules and the incompleteness
of the legal system, it was unavoidable that each executive depart-
ment, the Ministry of Justice at the head, had carried out the task
of explaining the laws. Since the Supreme Court now had to secure
the conformity of law, the responsibility of the generally binding
interpretation of the regulations fell upon that court. It was definitely
decreed that the departments which, asked by their administration
44
This sphere of activity should have resulted in putting an end to the court
extraordinary (rinji saibansho). But soon afterwards three courts extraordinary were
opened in the centres of the Hagi insurrection, namely Hagi, Fukuoka and Kumamoto
on 11 November 1876. The presiding judges were professional judges. Other courts
extraordinary were established within the Supreme Court, thus in the case of
Tsunayoshi Òyama, former prefect of Kagoshima who had been involved in the
rebellion of Takamori Saigò, on 23 March 1877; the case was referred to the
Kyùshù Court Extraordinary which opened on 2 April 1877. Also, from 17 May
1878 a court extraordinary within the Supreme Court heard the case of Ichirò
Shimada and others who had murdered the state councillor Toshimichi Òkubo
three days before; they were sentenced to death on 27 July 1878. A court extra-
ordinary could deal with civil actions too, e.g. from 27 February to December 1876
in the case of a collision of the steamer Osaka-maru held by the admiralty and the
steamer Nagoya-maru owned by the Mitsubishi company in the sea of Suò. In any
case, at least from 1877, the Supreme Court passed judgement in serious political
matters in the form of court extraordinary, the members of which were not nec-
essarily professional judges of the Supreme Court. That was based on applications
of the Justice Minister to the government for permission to set up a court extra-
ordinary. Contrary to the system the applications were granted. That the influence
of the executive on the judiciary continued became evident also in the government
decree no. 8 of 31 January 1876 by which the Justice Minister, if he did not agree
with a final judgement, was authorized, even after the deadline for appeal had
expired, to instruct the Chief Public Prosecutor to lodge an appeal or instigate the
court to resume proceedings. Y. Someno, Shihò seido (System of Justice) in Kòza Nihon
kindaihò hattatsushi (Lectures on the History of the Development of Modern Japanese
Law), vol. 2 at 116 (1958).
offices, had formerly issued directives on interpretation, were no

longer authorized to send out directives that were valid beyond the
individual case; only the courts were competent to explain a law in
general terms. This was an essential point of the modernization of
the judicial system. If the Supreme Court found a legal gap it had
the right to report and submit a suggestion for improvement to the
Emperor via the Minister of Justice.
These regulations were part of the government decree no. 103 of
8 June 1875 ‘saiban jimu kokoroe’ (Rules for the Conduct of Court
Affairs), which otherwise became famous by art. 3 of the Rules:
“Judgement in civil cases shall be rendered according to custom in
the absence of law; and in the absence of custom they shall be
decided according to reason”.45 The concept of ‘reason’ ( jòri )46 had
been playing a very important part in solving conflicts for centuries;
it called for the judge’s understanding of the people’s sense of right
and wrong but it did not exclude the influence of the personal opin-
ion of the judge.
When the Supreme Court had been established the Law School
of the Ministry of Justice was dissolved on 4 May 1875; its duties
were transferred to the Supreme Court.
By a decree of 24 May 1875 it was laid down which prefectures
belonged to the jurisdiction of each high court. Since there were
only four high courts the judges had to act as circuit judges ( junkai
hanji ). But that was limited to death penalty cases which were beyond
the competence of the prefectural courts. The judgements had to be
sent to the Supreme Court for approval. A circuit court consisted
of three members: one judge of the high court as presiding judge,
one assistant judge of the high court and one judge of the prefec-
tural court.47 The circuit courts were abolished on 19 February 1877.
45
Translation by Chambliss, note 7, at 307.
46
See G. Rahn, Rechtsdenken und Rechtsauffassung in Japan (Legal Thinking
and Understanding in Japan), passim (1990). T. Bölicke, Die Bedeutung des Begriffs
jòri für die japanische Rechtsquellenlehre (The Significance of jòri in the Japanese
Doctrine of Sources of Law), in 1 Zeitschrift für Japanisches Recht (1 Journal of
Japanese Law), at 7 et seq. (1996). W. Röhl, Rechtsgeschichtliches zu jòri ( Jòri in
the History of Law), in H. Menkhaus (ed.), Das Japanische im japanischen Recht
( Japanese Features in Japanese Law), at 39 et seq. (1994).
47
Ishii, note 6, at 221; Chambliss, note 7, at 284. According to O. Rudorff,
Die Rechtspflege in Japan in der gegenwärtigen Periode [Meiji] (The Japanese Legal
System in the Present Era [Meiji]), 40 Mitteilungen der Deutschen Gesellschaft für
Natur- und Völkerkunde Ostasiens (Records of the Association for East Asian Natural
732 procedural law
Also on 24 May 1875 the jurisdiction at the stages of legal pro-

ceedings was regulated since high courts and the Supreme Court
had been organized. The local courts had to decide on claims not
over 100 ¥; in criminal cases imprisonment up to thirty days (from
13 September 1876 penal servitude up to three years) was the upper
limit.48 The prefectural courts were officially renamed district courts
on 13 September 1876.49 The cancellation of the label fu or ken (=
prefecture) as the denomination of an administrative unit might be
regarded as a token of the separation of the judicature from the
executive, but—as before—the duties of a judge rested with the
regional official if in a prefecture a court had not yet been estab-
lished. The actual cause for renaming seems to be the fact that in
some places one ‘prefectural’ court included more than one prefec-
ture.50 The prefectural/district court was generally the court of the
History and Ethnology), at 427 (1888), one High Court judge and two judges from
the Prefectural Court.
48
Kusaibansho kari kisoku (Provisional Rules for Local Courts) of 27 September
1876. These rules amended the Saiban shichò kari kisoku (Provisional Rules for Branch
Courts) of 28 December 1875. Branch courts of prefectural courts had been erected
since 1872 (the first were three branch courts of the Kisarazu Prefectural Court at
Òami, Katsuura and Hòjò/Tateyama/ in the present Chiba prefecture on 13
September 1872 (old calendar: 12 August 1872)) and continuously set up further
on a level with local courts, although local courts (kusaibansho) were introduced in
September 1872. The branch courts were a means to reach judicial blanket cov-
erage also in districts where a local court was lacking. The branch courts were,
regardless of the amount in dispute, authorized to conduct conciliation proceedings
in civil cases (for details see Chambliss, note 7, at 309).
49
This name had been in use already earlier.
50
For example: The Kisarazu prefecture (south-east of Tokyo on the other side
of the bay) had been formed of more than a dozen small prefectures in December
1871, and the Kisarazu Prefectural Court with three branch courts had been set
up on 13 September 1872 (see note 48). The Kisarazu prefecture and two other
prefectures were combined in the Chiba prefecture in 1873/74; the Kisarazu Court,
the branches of which meanwhile had been renamed local courts and two of them
been dissolved afterwards, came to be the Chiba Prefectural Court which under
this name was united with the neighbouring Inba Prefectural Court, moved to Chiba
and became the prefectural Court of the Chiba prefecture on 24 June 1873; sev-
eral local courts were set up afterwards. When on 13 September 1876 the district
courts took the place of the prefectural courts, a disparity went along with the new
system: in 1875/76 there were 63 prefectures, but only 23 district courts were estab-
lished. 14 of them had jurisdiction over two prefectures each, one over three fu/ken,
eight over one prefecture each (Sihòenkakushi, note 6, at 35); so the 23 district courts
covered 39 prefectures. The Tokyo Court served as the district court for the Tokyo
municipal prefecture and the Chiba prefecture. The development of the Kisarazu
Court illustrates the generally winding road towards a solid order in the judicial
system which was achieved many years later. It should be added that near the mid-
first instance in all civil and criminal cases. If the death penalty
should be imposed the prefectural court prepared the case and sub-
mitted it to the circuit court. In cases of imprisonment for life the
prefectural court had to obtain the approval of the high court.
The four high courts as the courts of appeal in civil cases were
superior to the 23 district courts; each of those was placed in the
area of jurisdiction of a high court in such a way that the prefec-
tures belonging under the jurisdiction of a high court were enu-
merated.—New rules for means of legal redress were laid down.
Under the former rules of 1872 the decisions of local courts could
be re-appealed to prefectural courts and those of the prefectural
courts could be re-appealed to the Justice Ministry Court. The word
‘re-appeal’ ( jòkoku), as it was then used, denoted a retrial, i.e. a sec-
ond trial or hearing in the same manner as that of the lower court,
therefore jòkoku actually was an ‘appeal’ (kòso). Under the new rules
‘appeal’ (kòso) was a second hearing of the case and permitted in
civil cases only, while ‘re-appeal’ ( jòkoku) was a demand for review
for the reason that the lower court had exceeded its authority, con-
ducted the proceedings irregularly or violated substantive law. Re-
appeal was made available to civil cases, but prescribed as the only
recourse for criminal cases except for summary offences and capital
crimes.51 In criminal matters the high court had to examine the cases
submitted by a prefectural court, together with the proposal to impose
penal servitude for life, and decide on offences of advocates (daigen-
nin) and scribes (daishonin).52
dle of the seventies the number of prefectures changed now and then, and once
there were 47 prefectures without a court (Ishii/Chambliss, notes 6 and 7, at
220/283).
51
Ishii/Chambliss, notes 6 and 7, at 265/330. The reason for the exclusion of
appeal in criminal cases has been explained by Someno, note 44, at 109, arguing
that at that time the problem of the guarantee of human rights was not yet brought
up in criminal procedure. This argument is not beyond all doubt in case of capi-
tal punishment, for those sentences had to be sent to the Supreme Court for approval
and thus were subject to re-examination; but, admittedly, the re-examination did
not have to inquire into the correctness of finding the true facts of the case. The
draft of the Code of Criminal Instruction of 1880 connected the restriction of appeal
with the jury system, see below. The exclusion of summary offences from re-appeal
proceedings freed the high court from dealing with trifles, and the exclusion of cap-
ital crimes is justified under the regulation that a lifelong jail sentence required the
approval of the high court and a capital punishment was re-examined by the
Supreme Court in any case by virtue of the law.
52
Rules for advocates and scribes were enacted by the Office Regulations for
734 procedural law
In the high court one judge conducted the proceedings and dis-
cussed the judgement with another judge.
The amendments of September 1876 indicated that the reform of
the judicial system was not deemed final by the establishment of the
Supreme Court and the accompanying acts. In 1877 numerous alter-
ations were made. The regional officials were no longer authorized
to look after judicial matters, only on the seven islands of Izu and
the faraway Bònin Islands (Ogasawara) the old conditions remained
in force. By and large, the organizational independence of the courts
was achieved with minor exceptions. At the same time (February
1877) the sole jurisdiction of the Supreme Court over important
criminal cases ended, the regulations for the circuit courts ceased to
be in force, and the presidents of the Supreme Court and the high
courts lost the right to interfere in reaching a verdict. However, in
practice the jurisdiction by circuit courts continued because in cases
calling for a death sentence it was difficult to decide on the basis of
a written report of a lower court only.
8. The Predecessor of the Law for the Constitution of the Courts
On 25 September 1879 the Ministry of Justice presented the draft

of a Code of Criminal Instruction (Chizaihò) to the government. The
draft dealt with criminal procedure as well as the constitution of the
(criminal) courts).53 Together with the (old) Penal Code the Code of
Criminal Instruction was enacted on 17 July 1880 and took effect
on 1 January 1882.
Under the Code there were three kinds of criminal courts: for
police offences (ikeizai ), misdemeanours (keizai = minor offences), and
felonies ( jùzai = grave felonies, crimes). Moreover, a Special High
Court (kòtòhòin) was created that opened at the request of the Justice
Minister and handled crimes against the Imperial House and polit-
ical crimes.54 In its function it was the successor of the Court
the Justice Ministry of 5 September 1872. Advocates had to present the facts of a
case for people who were unable to sue by themselves. It was forbidden to make
false statements (art. 43–1). Scribes prepared the written pleadings for others, they
were obliged to see that nothing was omitted (art. 42–1).
53
See chapter 9.3.
54
The Special High Court consisted of seven members of chokunin-rank, namely
Extraordinary. On 28 December 1883 it was decreed that the ordi-

nary court should deal with the matters for which the Special High
Court was competent, if this court was not convoked.
The court for police offences was the Peace Court (chian saiban-
sho), misdemeanours were handled by the Court of Original Jurisdiction
(shishin saibansho), and felonies by the Court of Appeals (kòso saiban-
sho), which heard cases every three months, or by the Court of
Original Jurisdiction. These renamed courts took the places of the
local, district and high courts (ku-, chihò- and jòtòsaibansho). The sys-
tem of appeals was, on the whole, the same for civil and criminal
cases: appeal against judgements to the court one higher, re-appeal
against judgements of the court of second instance to the Supreme
Court. As before, appeal against a sentence pronounced by a court
for a grave crime was not permitted. Boissonade, who had drafted
the Code of Criminal Instruction, wished to introduce a jury system
in the court for felonies and in line with that exclude the right to
appeal. The result of deliberations in the Cabinet was that the exclu-
sion of appeal was accepted but the jury system declined; that may
be regarded as an item not thoroughly thought out. Boissonade’s
authorship and the preference of French law in the Ministry of Justice
brought about the situation that, on the whole, the Code was dom-
inated by French jurisprudence.
The constitution of the courts under the Code of Criminal Instruction
was rather clear-cut and considered progressive. But it was to be
expected that it would be difficult to translate it into practice.
Therefore, in the period from the promulgation to the coming into
three councillors of the Senate ( genròin) and four judges of the Supreme Court; they
were appointed every year in advance by decision of the Emperor. The Court dealt
with one case only: the Fukushima case. The governor of the Fukushima prefec-
ture had been sent to his post in connection with the repression of the Liberal-
Democratic Movement ( jiyù minken undò ), the centre of which in that region was
Fukushima. When the governor initiated road construction on a large scale and
imposed the cost of it on the population Hironaka Kòno, member of the Liberal
Party and chairman of the prefectural assembly, opposed and blocked the decision
on the prefecture’s budget. Acts of violence occurred, and a high official of the
roads department was killed. The governor had more than 3,000 persons arrested
and sent fifty of them to Tokyo for criminal prosecution for plotting a revolt. On
1 September 1883 the Special High court sentenced seven accused to prison for
many years. Kòno got seven years but was pardoned by an amnesty when the
Constitution was promulgated. Later, he became a member and president of the
Lower House of the Parliament and afterwards Minister of Agriculture and Commerce.
736 procedural law
force of the Code, several regulations were issued by which parts of

the reform were suspended. On 20 September 1881 the government
made some articles subject to the provision that they were not to
be implemented for the time being. Police offences were, if inevitable,
to be dealt with not strictly according to the Code but in an ‘appro-
priate way’; appeal against sentences on police offences were disal-
lowed. ‘For some time’ trials in such cases were to be conducted by
the police authorities and their branch offices—except in the dis-
tricts of the municipal prefectures Tokyo, Kyoto and Osaka and the
five trading ports Yokohama, Kobe, Nagasaki, Niigata and Hakodate;
but as early as 28 December 1881 these exceptions were repealed.
By a decree of 6 October 1881 sentences on misdemeanours too
could be passed by the peace court if the public prosecutor deemed
preliminary inquiry not necessary; in these cases police officers had
to fulfill the task of the prosecutor. The articles on appeal in crim-
inal cases were suspended on 28 December 1881; now, appeal was
prohibited ‘for some time’. The branch courts were dissolved on 6
October 1881 with effect from 1 January 1882. A list of the loca-
tion and area of jurisdiction of the courts, dated 6 October 1881,
includes 7 courts of appeal, 90 courts of original jurisdiction and
180 peace courts. In addition to the denomination of the prefectures
the names of the old domains are given too; it seems that the peo-
ple after ten years still knew the old names better than the new
ones. The list was changed when on 10 January 1883 branch courts
of the courts of original jurisdiction were set up anew; now there
were 43 courts of original jurisdiction and 47 branch courts, which
had the same authority as their head courts. That made commis-
sioning judges and public prosecutors much easier.
Accordingly, the Code of Criminal Instruction came into force
with diluted content. Afterwards, police jurisdiction was extended
too. Measures in connection with the offence of gambling fell to the
police under a decree of 4 January 1884, and on 24 September 1885
the ‘Summary Trial Regulation for Police offences’ (ikeizai sokketsu rei,
decree no. 31) was issued which made the ‘appropriate way’ for the
trial of police offences, scheduled ‘for some time’, permanent. This
state of affairs continued to exist as late as after the end of World
War II, legally based on art. 9 of the Regulations for Enforcing the
Law for the Constitution of the Courts of 19 March 1890.
In the first half of the eighties the government was preoccupied
with coping with the difficulties caused by the Jiyù minken undò and
by the Liberal Party which was founded in 1881. Those in power

were interested primarily in consolidating absolutism; in that process
the executive had priority, and the tendency towards modernization
coming to light in the judiciary was the victim of these circumstances.
Since 1872 Japan had been striving for the revision of unequal treaties
with foreign countries. Through the years negotiations had been
taken up again and again, but without reaching any conclusions.
After having dissolved the Liberal Party ( jiyùtò) and defused the
domestic problems, the government firmly pursued the objective to
amending the treaties by preparing a Law for the Constitution of
the Courts. Up to now, the judicial system had not been entirely
transparent, and was not yet able to undo the bonds with the exec-
utive. It had to be straightened out in such a way that foreign coun-
tries could gain confidence in the Japanese judiciary and give up the
extraterritoriality of their nationals.
For that reason, parallel to the treaty negotiations ran drawing up
the said law.
9. The Law for the Constitution of the Courts (infra abbreviated LCC)
Formerly, the government had sought the advice of Boissonade about

matters of the organization of the courts. Boissonade had a decisive
influence on the Code of Criminal Instruction of 1880; its articles
on the constitution of lawcourts, however, could not be enforced sat-
isfactorily. The fact that the German judge Otto Rudorff was com-
missioned to draft the new law is probably the outcome of travels
of the top politicians Tomomi Iwakura and Hirobumi Itò to Europe,
where they had mainly informed themselves about Prussian and
German law; moreover, in Germany a Law for the Constitution of
the Courts had been enacted in 1879 which was considered to be
representative of a modern judicial system. The original draft (gen’an)
for Japan was solely Rudorff’s work. The Japanese then consulted
Boissonade, Kirkwood, Roesler and Mosse and took their opin-
ions into account, so that the draft (sòan) that was submitted for dis-
cussion did not come from Rudorff alone; this draft had been
prepared in English.55 Because of the close connection with the treaty
55
O. Rudorff, Commentar zum Gerichtsverfassungsgesetze für Japan (Commentary
738 procedural law
negotiations the Legal Research Committee56 had been established

at the Foreign Ministry; this committee was to be involved in draft-
ing the new laws. After Foreign Minister Kaoru Inoue had resigned
in September 1887 the committee was assigned to the Ministry of
Justice, on 21 October 1887. It discussed the draft of the LCC at
twelve meetings from 14 November to 2 December 1887,57 the last
two days being applied to the second reading. The president of the
committee was the Justice Minister Akiyoshi Yamada;58 a list of the
other members is not included in the record. The foreigners who
originally had been attached to the committee did not attend; no
contribution by them to the discussion was noted. The respective
members who had to report on each article, if asked, conveyed the
opinion of the foreign advisers that was written down in notes or
obtained in the interval before the next meeting. Mosse wrote in a
letter of 19 November 1887 that Yamada had cast all foreigners out
of the committee and used them for giving statements only.59
Rudorff’s draft60 closely followed the German Law for the Cons-
titution of the Courts of 1879, and even after some changes the final
law was largely a copy of the German model. On general review of
the course of this legislation the most remarkable circumstance is
that neither in the drafts nor in the discussions of the committee
was there any reference to the participation of foreign judges in the
Japanese judicature. This point had not yet been settled in the polit-
ical deliberation. In order to promote the negotiations on the revi-
sion of the treaties Foreign Minister Inoue, in office since 1882, had
on the Japanese LCC), edited by Shihòshò chòsabu (Research Division of the Ministry
of Justice), Shihò shiryò (Historical Materials on Judicature) no. 259, German part,
at 27 (1939).
56
Horitsu torishirabe i’inkai.
57
Word-for-word record printed in Rudorff, note 55, Japanese part, at 255–767,
more than fifty years after the discussions. The editor remarked at 767 that there
were uncertainties and mistakes but the print was true to the original.
58
K. Hosokawa, Nihin kindai hòseishi (Modern Japanese Legal History), 307 (1961).
59
A. and L. Mosse, Fast wie mein eigen Vaterland (Nearly as Dear as my
Fatherland), 331 (1995).
60
Rudorff’s original draft (gen’an) as well as the second draft (sòan) had been
translated into Japanese. In his commentary (note 55, at 27) Rudorff explained
some uncertainties of concepts and terms by the fact that some expressions in the
German text had no equivalent in English legal terminology. The committee repeat-
edly argued from all three versions: Japanese-English-German.
always advocated the employment of foreign judges when foreigners

were involved in legal proceedings, and had only on 2 April 1887
obtained a corresponding decision of the Preliminary Conference
for the Revision of the Treaties. That he, shortly afterwards, should
have commissioned Rudorff to draft the LCC without causing him
to resolve that issue is striking. Also Foreign Minister Òkuma (from
1 February 1888) stood for the appointment of foreign judges—but
only at the Supreme Court—and the debate about naturalization of
foreign judges dragged out until the autumn of 1889.61 It seems that
the discernible, never denied intention of the government did not
impress Rudorff nor the committee presided over by the Justice
Minister, nor other persons and bodies engaged in the draft. That
Òkuma did not interfere nor demanded to consider his standpoint
at the treaty negotiations was because he meant to have the prob-
lem of foreign judges settled by special rules in addition to the LCC,
and attached importance to a quick enactment of the law. The
employment of foreign judges would not have accorded with the
programme of the committee either, which was after all to work our
laws following the western pattern—the employment of foreign judges
was purely a Japanese matter for which there was no model in west-
ern countries. The qualification for a judge of the Supreme Court,
as specified by the drafts and eventually by art. 70 of the LCC, pre-
vented the politicians from carrying out the idea. Moreover, some
members of the government, other politicians and the press offered
strong opposition to Òkuma’s plan, and considered it to be con-
trary to art. 19, 24 and 58 of the Constitution of February 1889,
which stated that only Japanese subjects had the privilege of being
admitted to the public service, that Japanese subjects had the right
to the decision of a legitimate judge, and that only a person who
was qualified as stipulated by law might be appointed a judge.
The deliberations on the draft went through the following stages:
The result of the discussions of the Legal Research Committee was
61
Someno, note 44, at 144.—On 6 October 1889 the German legal adviser
Albert Mosse was asked if he were willing to become a foreign judge of the Supreme
Court, note 59, at 489. Earlier, he had entertained the idea of applying for that
post, note 59, at 446. The initial recommendation for the use of foreign jurists as
judges at Japanese courts had been made by British legal adviser J.R. Davidson,
taking the Egyptian mixed court system as reference (H.J. Jones, Live Machines—
Hired Foreigners and Meiji Japan, 46 (1980)).
740 procedural law
the ‘Draft of the Constitution of the Judicial Courts of the Empire’

(Teikoku shihò saibansho kòseihò sòan). This draft was submitted to the
Cabinet on 13 March 1888, and by the Cabinet to the Senate (gen-
ròin) on 1 March 1889, which passed it on 23 March 1889. The
Cabinet and the Senate deleted the word ‘judicial’ (shihò ) in the title.
Thereafter the Privy Council (sùmitsuin) made some amendments and
finally consented to the law which was promulgated as law no. 6
‘Law for the Constitution of the Courts’ on 8 February 1890,62 and
came into force on 1 November 1890 (Saibansho kòseihò ).
Rudorff’s draft consisted of 155 articles;63 the law finally con-
sisted of 144 articles. Only the contents of the enacted law which
will be surveyed below are of interest as to the future of the judi-
ciary, but here it should be explained in brief what changes of some
importance the draft underwent in the discussions. Generally speak-
ing, the debate was often only about terms. The persons involved
in the discussion were aware of the fact that they had to fulfill a
precondition for the revision of the treaties that the foreign parties
to the treaties would keep to the English text, and that the English
words must influence the choice of Japanese words. Without giving
up their own standpoints the members of the several groups were
obliged to take a great deal of care over formulation. Details worth
mentioning are:
– The draft64 provided for the jurisdiction of the district court per-
taining to bankruptcy. But these cases were to be handled by the
local court if the bankrupt’s estate was not more than 100 ¥. The
committee, at the second reading, eliminated the competence of the
local court.65
– A regulation on the presidency of the session of the combined
chambers of the Supreme Court was missing in the draft. An amend-
ment proposed the presidency of the President of the Supreme Court.
The committee decided that the senior judge of the combined cham-
bers should be president of the session, but that the President of the
Supreme Court himself should have the right to take the chair. It
62
Cf. note 6.
63
O. Rudorff, Die neueste Justizgesetzgebung Japans (The New Legislation on
Judiciary in Japan), 45 Mitteilungen etc. (note 47), at 215 et. seq. (1890).
64
‘Draft’ here et seq.: sòan, the draft that was submitted to the Legal Research
Committee.
65
Record, note 57, at 342, 655.
was not as a matter of course that the President was a member of

the bench, since only two thirds of all the judges had to attend.66
– Out of consideration for the ranks and classes of the officials
the committee debated at length about the appointment of judges
by the Emperor. Under the draft the Emperor should appoint the
judges directly; thereby the appointed person would become chokunin,67
that, however, would not be appropriate and contrary to the appoint-
ment of comparable public servants of other departments. The com-
mittee member Taizò Miyoshi, then Vice Minister of Justice, mentioned
at the meeting of 19 November 1887 that Mosse’s and the others’
proposal had been criticized.68 Finally the committee decided that
the judges should be appointed by the Emperor, but that the pro-
cedure be ruled by special regulation.69 Afterwards the formulation
“by the Emperor or his order”70 was chosen.
– The draft pronounced the appointment of judges to be for life.
The committee approved twice,71 but at the second reading the
reporting member presented a wording without that clause.72 The
reason was not recorded; there was no discussion. Possibly, an agree-
ment had been reached outside the meetings to enable the admin-
istration to part from a judge who proved unsuitable. In the period
between the submission of the draft to the Cabinet and the presentation
to the Privy Council the lifelong appointment was accepted anew.73
– That the committee did not always go along the line that would
promote the treaty negotiations became evident in the discussion
about the problem of public trial. The draft said that even in a case
where the court ordered trial in camera the lawyer who was pre-
sent in his professional capacity should be allowed to stay in the
court room. After thorough discussion it came to light that the clause
was the idea of Kirkwood, who thought it advantageous with regard
to the negotiations on the treaties, and that Boissonade was of the
same opinion. Boissonade had told the reporting member of the
committee that it was a good proposal and that certainly under a
66
Record, note 57, at 396, 661, 669.
67
See chapter 22, p. 156.
68
Record, note 57, at 444.
69
Record, note 57, at 443, 511, 514, 719.
70
LCC art. 67.
71
Record, note 57, at 443, 511.
72
Record, note 57, at 719.
73
742 procedural law
despotic regime there was no such thing. A member asked about

the regulation in Germany. The answer was: neither in Germany
nor in France was there a rule corresponding to the proposed one
since it was considered unnecessary—the lawyer did not belong to
‘the public’. Thereupon the clause was eliminated.74
– The committee passed art. 5 of the draft that made mention of
special courts, namely military courts, disciplinary courts, adminis-
trative courts and courts for conflicting jurisdiction. Moreover, art.
5 made it possible for the legislator to set up commercial courts,
shipping courts and industrial tribunals if necessary. This was totally
amended in later stages and reduced to art. 2 of the LCC: “The
regular courts decide all civil and criminal cases with the exception
of those cases as are referred to special courts by law”.75 Special
courts were
(i) The Administrative Court, art. 61 of the Constitution.
(ii) The police offices for petty offences;76 the accused could request
a hearing at the regular court.
(iii) The Military Courts, art. 10 of the Regulations for Enforcing
the LCC77 which came into force together with the LCC.
(iv) The prison governors at Kabato, Sorachi and Kushiro78 for
petty offences and felonies of prisoners.79
(v) On 23 October 1888 regulations for the jurisdiction of Japanese
consuls in China and Korea had been issued. Under art. 15
of the Regulations for Enforcing the LCC they remained valid.
Actually, those regulations did not concern special courts as
exceptions of the jurisdiction of the regular courts since this
could be performed only in Japan.80
The LCC consisted of four parts, the first of which (arts. 1–56) dealt
with the courts and the public prosecutor’s office. There were four
regular courts:
74
Record, note 57, at 580–586.
75
Cf. Constitution art. 60.
76
See above at
77
Art. 10 of the Regulations for Enforcing the LCC.
78
Places in Hokkaidò. The prisons there were established in 1881, 1882 and
1885. M. Takikawa, Nihon gyòkeishi (History of the Japanese Penal Administration),
261 (1961).
79
Art. 14 of the Regulations for Enforcing the LCC. This rule was repealed on
27 March 1908 when the Prison Law was enacted.
80
Rudorff, note 55, at 6.
1. Local Court (kusaibansho). The range of authority of the single

judge extended to claims not over 100 ¥ and cases concerning spe-
cial legal relations, e.g. tenancy, possession, boundaries of real estate,
art. 14. As to criminal cases the local judge was authorized to pass
judgement on relatively petty offences, art. 16. In non-contentious
matters he handled cases of guardianship and registration of titles
to estates, ships, companies, patents and trade marks, art. 15. Under
an ordinance of 15 September 1888 branch offices (shutchòjo) of the
local courts (then: chiansaibansho) were authorized to deal with cases
of registration and conduct particular proceedings. That ordinance
remained in force, art. 11 of the Regulations for Enforcing the LCC.
2. District Court (chihò saibansho). This court was supervised by a
president and split up into civil and criminal divisions, in each of
which three judges, including a director as the presiding judge, were
involved in deciding the case, arts. 19, 20, 32. In addition, every
year the Minister of Justice appointed one or more judges for pre-
trial hearing or preliminary examination ( yoshinhanji ), art. 21. The
district court had jurisdiction of the first instance over civil cases,
except those which had to be handled by the local court or the high
court (claims against the Imperial family, art. 38), and over crimi-
nal cases which were not part of the jurisdiction of the local court
or high court, arts. 26, 27. In the second instance the district court
decided on appeals and complaints against decisions of the local
court, arts. 26, 27, 29. The district court had to make judgements
on cases of bankruptcy too, art. 28.
“If the Minister of Justice, because of remoteness of a district court
or difficulty of access to it, regards it as appropriate” he might set
up branch divisions of a district court in the area of a local court
and assign to them the jurisdiction of a part of the civil and crim-
inal cases of the district court, art. 31. Rudorff deemed this to be
very questionable as the branch divisions actually were courts of their
own which under art. 4 of the LCC might be established by law
only.81 Through the years, the Minister of Justice made ample use
of that authorization but reduced the competence of the branch divi-
sions to jurisdiction in the first instance and exclusion of severe
81
Rudorff, note 53, at 139 et seq. The high courts were named kòsoin since
1886.
744 procedural law
crimes. A list of January 1933 recorded 58 branch divisions for 37

district courts.82
In 1890, the fixed number of posts for district court presidents
was 48, i.e. 3 for the municipal and 45 for the rural prefectures. In
each of the years 1892, 1907 and 1916 a new prefecture was insti-
tuted; accordingly the number of district courts went up to 51, and
on 2 April 1935 the Tokyo District Court was divided into two dis-
trict courts: one for civil and one for criminal cases, so that finally
there existed 52 district courts.
The number of judges of the local and district courts fluctuated
from 1393 in 1890 to 1294 in 1938, with a low of 798 in 1914 and
1915. Just in these years of personnel reduction the civil cases newly
received were very numerous, but most of them were uncontentious
matters.83
3. Court of Appeal (or High Court or Higher Court, kòsoin). The
seven courts of appeal84 decided on appeals against first-instance
judgements of the district courts, complaints against their rulings and
orders, and on re-appeals against their second-instance judgements.
The Tokyo Court of Appeal had jurisdiction in both first and sec-
ond instance over civil actions brought against members of the
Imperial family, arts. 37, 38. Each high court had a president and
one or more civil and criminal divisions. Each division was com-
posed of five judges, but the division of second instance that had
jurisdiction over actions against the Imperial family consisted of seven
judges.
The number of judges of the courts of appeal was 107 in 1890,
fell to 74 during World War I and rose to 129 at the end of the
thirties.85
4. The Supreme Court (taishin’in or daishin’in) was structured like
the other collegiate courts: a president and civil and criminal divi-
sions. The total number of its judges varied between 31 in 1890 and
47 in 1938.86 It was the court of re-appeal against judgements of
the courts of appeal and complaints against their rules and orders.
82
Shihòenkakushi, note 6, at 462–464.
83
Shihòenkakushi, note 6, at 553.
84
Tokyo, Osaka, Nagoya, Hiroshima, Nagasaki, Miyagi, Sapporo.
85
86
Note 85.
As the first and last instance it dealt with political crimes: major
crimes against members of the Imperial family or crimes committed
by them, and with treason, art. 50. The decision was made by seven
judges. In order to settle a legal problem that was judged differently
by the divisions the president had to order all civil divisions or all
criminal divisions or all of both divisions to sit together for judge-
ment of the case in question, art. 49. Not only in that situation but
always, the conclusion in law that formed the reasoning of the
Supreme Court bound the lower courts in the action concerned,
art. 48.
For every class of courts the LCC regulated the distribution of
work and the substitution of judges. This prevented a body of judges
from being formed arbitrarily for a particular case.
To each court was attached a prosecutor’s office, arts. 18, 33, 42,
56, each office being supervised by its head. The Public Prosecutor
General (kenji sòchò) supervised all of them, art. 135.
The second part of the LCC, arts. 57–102, related to the persons
working in the courts, the judges, public prosecutors, court clerks,
bailiffs and ushers. The court clerks or secretaries were appointed
and assigned by the Minister of Justice, the chief clerks were sònin,
i.e. the appointment required the Emperor’s approval; the other
clerks were hannin.87 The bailiffs belonged to the local courts, but
their activity extended to the whole area of the district court. They
were hannin; the Minister could transfer the appointment and assign-
ment to the president of the court of appeal. Details of their duties
were regulated by an order of 24 July 1890. Candidates for court
clerk or bailiff were required to pass an examination.
The third part, art. 103–133, was about the sittings of the courts
with the principle of administration of justice in open court, the lan-
guage of the trial, the deliberation of the judges, the mode of finding
the decision, the drawing up of standing orders of the courts and
the prosecutors’ offices, the judicial year and holidays (arts. 127–130
on holidays were eliminated by law no. 71 of 6 April 1911). Moreover,
the LCC ordered that the courts, the public prosecutors’ offices
and the secretaries had to render mutual assistance in law enforcement.
The fourth part, arts. 134–143, named the persons through whom
the Minister of Justice executed the administration of the judicial
system, including the supervision of the courts and prosecutors if he
87
For sònin and hannin see chapter 2.2., p. 156.
746 procedural law
did not intervene himself. They were the presidents of the collegiate
courts and the single judge or judge in charge of a local court, as
well as the chief prosecutors in the order of the instances. The most
important rule that gave the modern characteristic to the judiciary
was ordained at the end, art. 143: the administration was not allowed
to infringe on the judicial authority of the judges when they acted
as judges. The ban on the executive’s interference in the dispensa-
tion of justice was put to the test very soon: On 11 May 1891 a
Japanese assassin wounded the Russian crown prince who, travelling
through Òtsu on his way to Kyoto to visit the Tenno. The exam-
ining judge of the Òtsu District Court, having finished the prelimi-
nary investigation, sent the case to the Supreme Court because of
its competence for political crimes. Members of the government, the
Minister of Justice among them, expressed their opinion that the
crown prince would one day be the tsar of Russia and the assassin
had to be sentenced according to the article concerning crimes against
the emperor, therefore to death. The President of the Supreme Court,
Iken Kojima, holding office only since 6 May 1891, vigorously opposed
the attempts to influence the judges and defended the independence
of the judicature. The second criminal division, presiding judge
Masaoto Tsutsumi, approvingly applied the regular articles of the
Penal Code and sentenced the accused to penal servitude for life for
attempted murder.88
Nevertheless, generally there was a risk that the Minister of Justice,
by means of his right of supervision, indirectly exerted influence on
the judicial business: he could establish branch courts (art. 31), he
appointed the examining judges of the district courts (art. 21), he
decreed principles of the allotment of business of the local, district
and high courts (arts. 11, 22, 36), and he issued standing orders for
the courts (art. 125). The independence that the judiciary gained
after World War II was not guaranteed under the LCC.
In connection with the independence of the judiciary and the dis-
pensation of justice, which should be based on the law and the con-
science of the judge only, one must take into consideration the fact
that under any system that leaves it up to the bureaucracy to appoint
the judges, or subjects it to an electoral procedure, and where a
88
Òtsu-case or Konan-case. See also chapter 10.4 ‘The Lawyer’, p. 811.
hierarchical order prevails it may happen that persons of not very

steadfast personality endeavour to not make themselves unpopular
with the personnel department or the electors. Besides, in Japan of
the Meiji era the traditional sense of the individual position in soci-
ety as well as in the career was dominant. So it is conceivable that
a judge in doubt might follow the opinion of his senior89 and abstain
from forming his own judgement, or leave his individual opinion
unvoiced.
In 1890 the LCC, modelled on German law, together with the
codes of civil and criminal procedure, signified entry into the mod-
ern age. For the first time the structure of the judiciary was stan-
dardized and codified in one law. That not only strengthened the
domestic centralism but also met the expectations of the foreign par-
ties to the treaties, who dispensed with their suspicions about Japan’s
judiciary. The first trial against a foreigner, the American Robert
Miller who had killed an American and two Japanese at Yokohama,
was held at the Yokohama, District Court in August 1899 shortly
after the extraterritoriality had been abolished owing to the enforce-
ment of new treaties in June 1899.
Otto Rudorff immediately wrote a commentary on the LCC in
German that, accompanied by a Japanese translation, was printed
in a book edited in memory of the LCC that was in use for 50
years.90 There are no signs that the commentary had been taken
note of by a Japanese jurist before 1939 or ever played a part in
applying the law.
10. Further Development Until the End of World War II
The LCC underwent eighteen amendments from 1905 to 1943. They

are hardly worth mentioning since most of them dealt with the exten-
sion of the local courts’ competence: raising of the maximum value
89
Someno, note 44, at 164, indicates that even the President of the Supreme
Court who did not act as a judge in the Òtsu-case (see above at note 88) had
undertaken to persuade the judges of his opinion.
90
Note 55. The translator was Dr. Shinozuka who was in the service of the
Ministry of Justice from 1935 to 1964 ( Japanese foreword, and private information
from the public prosecutor Kazuo Inaba). A few passages in the commentary about
differences of the LCC from the draft give the impression that Rudorff was a bit
nit-picking, but on the whole and in a lecture in June 1890 (note 63) he gave his
views favourably.
748 procedural law
of claims or including other felonies in the penal authority.91 There

were new rules on substitution92 and the reduction of the number
of judges who had to attend the trials and cooperate towards the
findings: at the Supreme Court five instead of seven, at the court of
appeal three instead of five,93 and on other matters. All re-appeals,
including those that hitherto had to be decided by the court of appeal,
were transferred to the Supreme Court, and in order to simplify and
speed up proceedings several provisions were enacted during World
War II.94
There was but one major break. Although Japan’s economic power
was increasing and the number of civil and criminal cases in the
first-instance courts and prosecutors’ offices was growing95 the appa-
ratus of the judiciary was reduced by the laws no. 6, 7, 8 and 9 of
5 April 1913. The prosecutors were little affected (three budgeted
posts less), but in comparison with them the measures had a great
impact on the judges. First, by law no. 6 the Minister of Justice was
authorized to remove a judge with the assent of the court of appeal
or the Supreme Court. Law no. 7 gave permission to suspend a
judge at reduced salary; however, that could be done only if the
plenum of the Supreme Court made a decision to that effect. Moreover,
judges and prosecutors might be led to hand in their resignation.
The provisions of the LCC on removing a judge were declared to
be not applicable. The result of this piece of legislature was that
from 19 April to 30 June 1913 131 judges were suspended and 98
dismissed in compliance with their application. The number of bud-
geted posts for judges went down from 1129 in 1912 to 900 in
1913.96 443 persons were moved to other posts or other departments.
The personnel of the Justice Ministry too was diminished by 18 posts
to 91.97 Under the laws no. 8 and 9 more than 120 local courts
were dissolved. From 1919 the cost-cutting measures were step by
step balanced out.
91
Laws no. 67 of 1905, no. 50 of 1906, no. 30 of 1908, no. 6 of 1913, no. 5
of 1925.
92
Laws no. 2 of 1934, no. 82 of 1937.
93
Law no. 6 of 1913.
94
Kaneko, note 6, at 54 et seq.
95
Tables in Shihòenkakushi (note 6), at 551 et seq. For the staff see loc. cit. at
543.
96
97
Laws of importance to the constitution of the courts were enacted

outside the LCC:
1. Juvenile Law (Shònenhò), law no. 42 of 15 April 1922. A newly
established Juvenile Court (shònen shinpanjo) became responsible for
measures against young persons under 18 years of age. It consisted
of magistrates (shònen shinpankan) and juvenile investigators (shònen
hogoshi ). The magistrates were required to be qualified as a judge,
so that they could be kept occupied in addition to their main job.
The juvenile investigators had to support the magistrates by inves-
tigating and controlling. They should be experienced in juvenile pro-
tection or education and fit in other ways too. The juvenile courts
were supervised by the Minister of Justice, in essence they were not
courts but an administrative organ.98
2. Jury Law (Baishinhò), law no. 50 of 18 April 1923, in force from
1 October 1928.99 From the liberal trend of that time there emerged
the demand to let the people have a part in the dispensation of jus-
tice, like in Europe and America. The Jury Law created a compli-
cated system, the details of which were not modelled on any foreign
law but decided by the ideas of the Japanese legislator. Since the
98
In Japanese the juvenile courts were not called saibansho (= court) and the
magistrates, even if being judges, were shinpankan (= umpiring official).
99
When the law came into force Emperor Hirohito visited the Supreme Court,
The Tokyo Court of Appeal and the Tokyo District Court. The top officials of the
Ministry of Justice, judges and public prosecutors of high position and the presi-
dents of both bar associations, altogether 71 persons, were received in audience.
All presidents of the courts of appeal and the chief prosecutors of those courts were
present. The President of the Tokyo District Court displayed the court room for
trials by jury. Walking about the Emperor passed the bust of Boissonade, about
the merits of whom His Majesty was informed by the Justice Minister. On this day
the Emperor issued the following edict: “The dispensation of justice protects the
social order and safeguards the rights and duties of the people; thereby the welfare
of the nation is identified. Now you are assembled on the day on which the Jury
Law becomes operative. All the more serve loyally and work hard!”. Immediately,
the Minister of Justice convoked the President of the Supreme Court and the other
officials in court room no. 1 of the Supreme Court, informed them of the edict
and, respectfully reading those weighty words aloud, celebrated the transmission.
Moreover, the edict was dispatched at once to all courts in Japan by telegram. One
year later, the 1st day of October was made the ‘Judiciary Day’ to be commemo-
rated every year by holding a celebration or a lecture meeting or otherwise at the
Ministry and the courts all over the country. In connection with the Judiciary Day
the judicial sector, for the first time, organized public relations work in 1937.
Shihòenkakushi (note 6) at 422 et seq., 436, 509.
About the Jury Law see also P. Schmidt, Law of Criminal Procedure, chapter
9.3 in this volume.
750 procedural law
Constitution did not allow persons who were not trained as and
appointed judges (predominating opinion), the part of laymen was
limited to establishing the actual facts. The Law did not even per-
mit the verdict of guilty or not guilty. A jury could be involved in
trials of the district court only if the law threatened the culprit with
death or imprisonment for life, except for specific crimes, e.g. so-
called political crimes. The defendant could, prior to the preferment
of charges, refuse to be tried by a court with a jury. If the law
threatened him with imprisonment for more than three years the
defendant was allowed to ask for a trial by jury. Such applications
were made very seldom because there was no appeal, but only an
appeal on a question of law against being sentenced by a court with
a jury, and on the other hand the defendant, if sentenced, had to
reckon on high costs since the jurors were entitled to compensation
for time, travelling expenses and accommodation. According to sta-
tistics from October 1928 to April 1936 only twelve defendants
applied for a jury trial, and including these cases there were merely
443 trials with a jury within the said period. During those seven and
a half years, at 36 out of 51 district courts the number of such cases
was less than 10.
The purpose of the Jury Law, to give the people the right to exert
influence on decisions of the courts, could be spoiled by the provi-
sion that the judges were not obliged to follow the findings of the
jury. If they regarded them as not correct they could lay the case
before another jury and that as often as they thought fit. If the
judges did not agree again and again they finally had to base the
sentence on their own view of the facts. That was not provided for
by the Law but was practically unavoidable as sometime the sen-
tence had to be pronounced.100
The application of the Jury Law had almost come to an end when
it was suspended in 1943 (law no. 18). It has never returned into
force.100a
100
Y. Takikawa, Baishinhò ( Jury Law), in Shin-hògaku zenshù (Complete Collection
of New Law), vol. 27 at 6 (1938). W. Röhl, Fremde Einflüsse im modernen japani-
schen Recht (Foreign Influence on Modern Japanese Law), 12–15 (1959).
100a
A law concerning the establishment of a jury-like system was enacted in April
2004, to be enforced in 2009. JAPAN aktuel ( Journal of contemporary Japan, edited
by the Institute of Asian Affairs, Hamburg/Germany), vol. XII, p. 214, no. 61.
11. The Court Organization Law (Saibanshohò) of 1947 <literally ‘Court

Law’, used here alternatively>
On the basis of the Potsdam Declaration of 26 July 1945, the accep-

tance of which by Japan brought the Second World War to an end,
also in East Asia, Japan promulgated—by amendment of the Meiji
constitution of 1889—the ‘Constitution of Japan’ (Nihonkoku kenpò)
which came into force on 3 May 1947 and has not been altered
since. Articles 76 to 82 of the new Constitution specify those regu-
lations for the judiciary which benefit from constitutional guarantee.
The Law for the Constitution of the Courts of 1889 following the
German law had, it is true, guaranteed the independence of the
judges’ dispensing justice but put the courts under the control of
the Minister of Justice who conducted the budget of the courts, man-
aged the appointment of the judges and assigned the posts to them.
The courts were not free to doubt that a law was compatible with
the Constitution, and there were no sufficient means of legal redress
against administrative actions. The Anglo-American conception of
the judicial supremacy led to the following principles in the new
Constitution:
– The whole judicial power is vested in a Supreme Court and in
such inferior courts as established by law.
– The judges of the inferior courts shall be appointed by the Cabinet
from a list of persons nominated by the Supreme Court.
– The Supreme Court is the court of last resort with power to deter-
mine the constitutionality of any law, order, regulation or official
act.
– The Supreme Court is vested with the rule-making power under
which it determines the rules of procedure and of practice, and
of matters relating to attorneys, the internal discipline of the courts
and the administration of judicial affairs. Public prosecutors are
subject to the rule-making power of the Supreme Court. The
Supreme Court may delegate the power to make rules for infe-
rior courts to such courts.
The Supreme Court is the head of judicial administration, and with
respect to the administration of justice no authority but the will of
the people as laid down in the Constitution is superior to it. The
influence of the executive has been abolished. The President of the
Supreme Court is on a level with the Prime Minister and the other
752 procedural law
14 judges are equal to the ministers. Admittedly, the Cabinet nominates

the President designate to be appointed by the Emperor and appoints
the 14 judges without being bound to any proposals; these appoint-
ments (and dismissals) need to be confirmed by the Emperor. How-
ever, any other procedure of appointment will be hardly imaginable,
and the appointment of the highest judges must be reviewed by the
people at the first general election of members of the House of
Representatives following their appointment, and shall be reviewed
again every ten years. In this way the judges are democratically
authorized not only to dispense justice but also to conduct the judi-
cial administration, sections of which are matters of personnel, rule-
making and financial management. The separation of the judiciary
from the executive was expressed also by reorganizing the ministe-
rial system. The Ministry of Justice (shihòshò ) was abolished on 15
February 1948. At the same time the Legal Office (hòmuchò ) of the
Cabinet was established under law no. 193 and one year later renamed
hòmufu. Its chief was called ‘Director of the Legal Office’ (hòmusòsai );
he had the rank of a minister. This office was an administrative
organ which had to advise the government on legal questions. On
1 August 1952 it was made a ministry (hòmushò, literally ‘Ministry of
Legal Matters’).101
The review of the appointment of judges to the Supreme Court
by the people (Constitution art. 79 paragraph 2) makes sense only
if the voter can inform himself about the opinions of the judges on
applying the law. Therefore, the judge must show his responsibility
for the decision: under art. 11 of the Court Law the opinion of each
judge has to be announced in the written judgement. In practice,
the opinion of all or the majority is announced as one, and the judge
who does not share that opinion has to insert a dissenting vote.
Moreover, the Court Law changed the traditional training and
promotion system: jurists of other professions may become judges of
the Supreme Court, presidents and judges of high courts or judges
of summary courts, art. 41.
At the level of the district courts, family courts (katei saibansho) were
established which not only have jurisdiction in cases of family rela-
tions and inheritance but also handle matters concerning the pro-
tection of children and young people as well as juvenile delinquency.
101
In western languages the ministry is still called “Ministry of Justice”, but it is
no longer responsible for the control of the courts of justice.
The fundamental laws are the Law for Adjustment of Domestic

Relations (kaji shinpan hò ) of 6 December 1947, law no. 152, and
the Juvenile Law (shònenhò ) of 15 July 1948, law no. 168, both of
them several times amended afterwards. They make a point of involv-
ing lay judges and of conciliation.
The family court is the only court for special cases in addition to
the customary (regular) law courts now renamed kan’i saibansho (sum-
mary court), chihò saibansho (district court), kòtò saibansho (high court),
saikò saibansho (Supreme Court). The Constitution forbids extraordi-
nary tribunals.
The Court Law was promulgated on 16 April 1947, a few months
later than the Constitution, and came into force together with it on
3 May 1947.102 The period of preparation was notably shorter than
in the case of the old Law for the Constitution of the Courts, since
the first draft of the new Japanese Constitution had become known
in March 1946 and indicated the requirements for the judicature.
As early as November 1945 the Ministry of Justice had set up a
committee for the reform of the judicature (shihò seido kaisei shùgikai )
without knowing the intentions of the forthcoming constitution; the
Japanese government itself realized that the system had to be improved.
Under the chairmanship of the Justice Minister the committee con-
sisted of 35 persons: members of the government, high officials,
judges, public prosecutors, members of Parliament, professors, and
presidents of bar associations. The resolutions of the committee were
examined by the Ministry of Justice in view of the draft of the
Constitution. In June 1946 the Ministry set up a Provisional Committee
for the Preparation of the Judicial Reform (Rinji shihò seido kaisei junbi
kyògikai ), consisting of 17 members who were to make contributions
to the deliberations of a future main committee. The provisional
Committee held several meetings in June 1946 and gave its opinion
about the number of judges of the Supreme Court, the position of
the president and the judges of the Supreme Court, the retirement
age of judges, the qualification to become a judge, the competence
of the Supreme Court, a jury system and other topics.
In July 1946 the Cabinet founded the Extraordinary Committee
for the Investigation of the Legal System (Rinji hòsei chòsakai ), the
102
For the following see Y. Naitò, Shihò seido ( Judicial System), 100 Jurisuto ( Jurist)
16 et seq. (1956).
754 procedural law
chairman of which was Prime Minister Shigeru Yoshida. The sixty

members of the Committee came from political, bureaucratic, and
academic circles and other fields. The Committee was divided into
four subcommittees, the third of which deliberated on the judicial
system. At the same time a Council for Laws on the Judicial System
(Shihò hòsei shingikai) was instituted in the Ministry of Justice under
the chairmanship of the minister. This council was combined with
the third subcommittee mentioned above. Now, there were more
than eighty members. In three divisions they formulated guidelines,
and at the end of October 1946 the plenum of the Extraordinary
Committee passed a resolution on the drafts and submitted them to
the Prime Minister. While the Ministry of Justice prepared the Court
Law the Cabinet Bureau of Legislation also examined the minister-
ial drafts which had been formulated in two versions: one of 130
articles (21 October 1946) and one of 108 articles (11 November
1946); the latter was cut down to 91 articles on 2 December 1946.
Parallel to those activities the General Head Quarters of the Allied
Powers, to which all legislative plans had to be submitted, attended
to the Court Law and uttered some requests, of which the following
are worth mentioning. In negotiations by Japanese officials with the
General Head Quarters agreement was reached on 12 March 1947.
1. The GHQ recommended the involvement of lay judges in admin-
istrative litigation and criminal cases. Thereupon, art. 3 para-
graphs 2 and 3 of the Court Law made it possible for an executive
organ to hold a preliminary trial, and for the provisions of the
Court Law to include the establishment of a jury system.
2. With respect to art. 81 of the Constitution “The Supreme Court
is the court of last resort with power to determine the constitu-
tionality of any law, order, regulation or official act” the draft of
the Court Law said that an inferior court which doubted the con-
stitutionality had to ask the Supreme Court for a decision. That
requirement was done away with because it should be made clear
that the inferior courts are also authorized to judge the issue.
3. The draft provided that a judge was not allowed to join a polit-
ical party nor any other political organization. That was modified
to the effect that a judge may not actively partake in a political
movement, art. 52.
4. At the instigation of the Supreme Court (taishin’in) the GHQ more-
over saw to it that the budget of the judicature became inde-
pendent (art. 83 of the Court Law, art. 19 of the Finance Law).

The draft had stipulated the control of the Ministry of Justice.
This item made the independence of the judicature complete.
The Court Law passed the Cabinet on 28 January 1947 and after-
wards was twice amended on 8 and 11 March 1947; the final text
had 83 articles. A committee of the Privy Council discussed the law
at six meetings from 12 February 1947 onwards and on 12 March,
the plenum approved. The Court Law passed both Houses of Parlia-
ment in the same month.
Later amendments did not affect the essentials of the constitution
of the courts. The order of the judicature as an independent third
power in the state may be called thoroughly accomplished. The
courts are no longer supervised by the executive.
Appendix
12. Enforcement of Penalty —The Prison System103
When the sovereign power of the Emperor had been restored the
new government (dajòkan) established seven sections (ka), early forms
of the later ministries, among them the Penal Law Administrative
Section (keihò jimuka) in February 1868 which was renamed Penal
Law Administrative Secretariat (keihò jimukyoku) on 25 February 1868
103
This paragraph departs from the main subject of the article. The historical
development of the prison system is not treated elsewhere in this book. Takikawa
(see below) p. 2 remarks that the history of enforcement of penalty as a part of
legal history causes a particularly piteous feeling, and writing about it is not a very
pleasant occupation. As the prisons are under the control of the Ministry of Justice
since 1900 and had been so in the first years of the Meiji era, a summary is pre-
sented here as a section of the judicial system. For details see Shihòenkakushi (note
6), passim. Nihon kinsei gyòkeishi kò (Notes on the History of the Enforcement of penal-
ties in Japan’s Modern Age), edited by Zaidan hòjin keimu kyòkai (Foundation ‘Society
for Prison Affairs’), vol. 2 (1943), exhaustive, infra abbreviated NKG without ref-
erence to note 103. Ishii/Chambliss, note 7, at 289–294 and 358–365 respectively.
M. Takikawa, Nihon gyòkeishi (History of the Enforcement of Penalties in Japan)
(1961). D. Bindzus and A. Ishii, Strafvollzug in Japan (Enforcement of Penalties in
Japan) (1977).—This appendix deals with imprisonment only. For the execution of
a death sentence see P. Schmidt, Die Todesstrafe in Japan (The Death Penalty in
Japan) (1996).
756 procedural law
and Penal Law Office (keihòkan) on 11 June in the same year.

Simultaneously with the Charter Oath of Five Articles (gokajò no gosei-
mon), an Imperial rescript ‘On the People’s Tranquillity and the
Nation’s Prestige’ (okuchò anbu kokui )104 was promulgated on 6 April
1868. Here as well as in the Decree concerning the Executive Officials
( gyòseikan tasshi )105 of 13 December 1868 a new policy on criminal
justice became obvious. Until the enactment of a Penal Code the
old bakufu law106 was to be observed, but the severeness and cruelty
of punishments were mitigated. The Tentative Criminal Provisions
of 1868 and the following early enactments led to the result that
imprisonment became the main penalty, especially since the pun-
ishments of whipping, penal servitude and deportation had been
abolished by the ‘Outline for the New Criminal Law’ (shinritsu kòryò)
of 8 February 1871 and the last two replaced by detention with hard
labour (chòeki ). Therefore, the officials turned their attention to the
conditions in the prisons. Since the Emperor and the government
had expressed their intention to pursue the improvement of the
enforcement of penalties the ‘judges’107 of the Tokyo district in Octo-
ber 1869 admonished the prison governors to treat the prisoners in
the spirit of humanity and benevolence.108 An Imperial rescript on
the reform of the 8th century codes109 called for observance of the
government’s policy of benevolence, for revival of the custom of
cordiality and causing punishment to bring about non-punishable
conduct.110
In January 1870 the Prison Bureau (shùgokushi ) was instituted in
the Department of Criminal Affairs ( gyòbushò). Not only were the
denominations of the government offices taken from the ancient orga-
nization but also the dominating characteristic of government in the
monarchic age (òchò jidai ),111 the benevolent rule ( jinsei ), was revived
104
Text in NKG at 1354.
105
Text in NKG at 1355.
106
Kujikata osadamegaki hyakkajò (Code of a Hundred Articles on Legal Proceedings)
of 1742.
107
See p. 783.
108
NKG at 360.
109
See p. 683.
110
NKG at 1348.
111
The period of Japanese history when the emperors governed in their own
name, i.e. from the foundation of the State until the establishment of the Shogunate
in 1192 AD.
in the penal system. But the authority of the Prison Bureau was lim-
ited to the prisons within the Tokyo district, that is to say prisons
at Kodenmachò and Honjo, to the places of confinement (tame) for
sick criminals and offenders under age at Asakusa and Shinagawa,
and the house of correction (ninsoku yoseba) at Ishikawajima.112 The
other prisons in Japan were administered by local authorities. On 3
October 1871, the Prison Bureau of the Ministry of Justice (shihòshò,
successor to the Department of Criminal Affairs) was dissolved, and
the prison affairs came under the control of the municipal adminis-
tration, to save one stage in the transmission of orders. The com-
petence to enact provisions for the prisons remained with the Ministry.
In accordance with the Office Regulations for the Ministry of Justice
of 5 September 1872 a place of detention (kansò), administered by
the public prosecutor, was attached to each lawcourt for the hous-
ing of suspected criminals and any persons who had to be exam-
ined on the spur of the moment.113
Vice director of the Prison Bureau was Shigeya Ohara114 who
began to better the conditions within the prisons and was sent to
112
The localities are parts of Tokyo.—R. Ishii, (note 6), at 482. For ninsoku yoseba
see Bindzus/Ishii (note 103) at 8; Steenstrup, (note 1), at 164. The house of cor-
rection at Ishikawajima was changed into a prison (tojò ) soon afterwards. Ishikawajima
belonged to a complex of islands in the mouth of the river Sumidagawa, includ-
ing Tsukudajima and Tsukijima. Since Ishikawajima became a part of Tsukudajima
the prison was also known as Tsukudajima prison (formerly a house of correction).
Before, these prisons had been under the control of the Edo command (chindai ).
113
For the relevant article of the Office Regulations see NKG, (note 103), at 96.
In the course of time the kansò were used more or less like ordinary prisons.
114
Shigeya Ohara, 1836–1902, a samurai of the Okayama clan, as a young man
used to discuss current affairs and advocated reverence for the Emperor and expul-
sion of foreigners, the slogan of the anti-Shogunate movement. He associated with
Tesseki Fujimoto, the leader of the anti-Shogunate group ‘Tenchùgumi’, with Naosada
Noro, a loyalist from the Okayama clan, and Tarò Okamoto, also from Okayama,
who together with like-minded men in April 1863 took the wooden effigies of three
of the Ashikaga Shoguns (14th/15th century) from the Tòjiin temple in Kyoto, cut
the heads off, and pilloried them in the dry bed of the Kamo river at the spot
where it was then usual to expose the heads of criminals near a much crowded
quarter of Kyoto; to load the memory of the Ashikaga Shoguns with insults that
could not safely be offered in a direct manner to those of the reigning Tokugawa
line was fashionable among the opponents to the feudal system (B.H. Chamberlain/
W.B. Mason, Murray’s Hand-Book Japan, 320 (1913)). Ohara also had a part in
killing a secret agent of the bakufu and exposing his head outside the castle of
Okayama. For that, he was imprisoned but pardoned when the bakufu broke down.
In March 1868 he became the deputy of the Okayama clan in the kògisho, an early
Meiji legislative organ, and in August 1869 he entered the Department of Criminal
Affairs.—Ohara’s curriculum vitae represents the career of many loyalists before
758 procedural law
Hongkong and Singapore to study the prison system under British

administration. After his return in October 1871 he was transferred
to the Tokyo prefecture which took over the control of the prisons.
He drafted the Regulations for Prisons; they were promulgated as
‘Illustrated Regulations for Prisons’ (Kangokusoku narabi ni zushiki ), law
no. 378, on 29 December 1872.
The subjects of the Regulations were prison structure, detention,
penal labour, disease, death, execution of punishments, officials and
miscellaneous rules. The twelve subdivisions were headed structure,
prisons for unconvicted persons, prisons for convicts, refectory, bath,
grounds, places for persons sentenced to hard labour, prisons for
women, prisons for convicts being ill, reformatories, places for easy
work, and offices.115 These items show that there was marked difference
from the prison system of old. The preamble said that a prison was
a place to detain criminals and discipline them, to treat them humanely
and not brutally, to correct them and not make them sick. The law-
giver laid stress on having created a modern order of imprisonment
based on Ohara’s experience of western systems and the liberal ideas
of Justice Minister Shinpei Etò. But the enforcement of the Regulations
was expensive, and the government was not able to meet the cost,
so it suspended the Regulations temporarily in April 1873. The dis-
tricts were instructed, wherever it was convenient, to carry out
those provisions which did not depend on any government outlay,
i.e. penal labour and the treatment of prisoners. In consequence,
there was virtually no improvement but for instilling the new con-
ception into the public and thereby laying the foundations for a bet-
ter prison system. The most striking innovation was the promotion
practice in prison labour influenced by the successive promotion
method which the English reformer Walter Crofton had introduced
in Ireland in 1856.116 Under the Regulations for Prisons of 1872
there were to be five classes of prisoners sentenced to hard labour:
(i) The 5th and lowest class was the first stage for the prisoner. He
had to wear heavy chains, his work was to carry earth and stones,
and after the restoration. It should be added that in 1890 he founded a Training
Institute for Prison Officials. At the time of his death he was a member of the
upper house of Parliament and decorated with the third order of merit.
115
NKG at 419–422.
116
NKG at 1113.
to reclaim wasteland, to pound rice, squeeze oil and break stones.

(ii) After one hundred days he could be promoted to the 4th class.
Then he wore light chains and was occupied with the construction
of official residences, road repair, brick making and burning, tilling
and weeding. (iii) The prisoners of the 3rd class were fettered at
both ankles and laboured as handicraft workers in wood, bamboo,
rattan, stone, as cooper, potter, cobbler, tanner, washer, weaver. (iv)
In the 2nd class the prisoner was fettered at one ankle and had to
work in the same way as in the 3rd class. A properly qualified pris-
oner could serve as instructor for the other prisoners or as cook or
inner gate guard. (v) The same went for the prisoner in the 1st class,
but he was free of fetters.
How long a prisoner belonged to one of the classes depended on
the term to which he had been sentenced. For instance, if sentenced
to two years he was 100 days in the 5th, 200 days in the 4th, 200
days in the 3rd, 100 days in the 2nd and 120 days in the 1st class.
A lifelong prisoner had to work 100 days in the 5th class, 5 years
and 260 days in the 4th, 2 years in the 3rd, 7 years in the 2nd and
the rest in the 1st class.—The working hours were four in the morn-
ing until four in the afternoon.
The prisoner of the 1st class received a small remuneration per
day or per manufactured thing, the sum of which minus the daily
food cost was delivered to him on release. Days of rest were granted
when the wardens had their rest and when a near relative of the
prisoner had died: seven days on the death of parents, three days
on the death of the husband, brother or sister, wife or child.
The details were regulated somewhat differently for old, young
and female prisoners and those with special skills.117
Although the Illustrated Regulations for Prisons were mostly not
carried out, signals to improve conditions were given. The Prison
Bureau under the leadership of Shigeya Ohara planned to repair
the prison buildings and to better the sanitary institutions; in the
Prison Bureau a medical office was established, and in the Ishikawajima
prison education and work were innovated, and early in 1871 lec-
tures in practical ethics were introduced.118
But there had not been much of a reform when the prison admin-
istration was taken away from the Ministry of Justice in October
117
NKG at 1114–1118.
118
NKG at 80.
760 procedural law
1871. Now, the management of all prison matters rested with the
local authorities. As a consequence, the Ministry of Home Affairs,
founded on 10 November 1873, which was the central organ of civil
administration and supervised the office work of the prefectures,119
gained control over the prisons with the exception of those attached
to the Ministry of Justice and the lawcourts (kansò). But in February
1876 these were also added to the business of the Home Ministry.
Lack of money hindered the implementation of the Prison Regula-
tions and, later on, the government’s energies were absorbed in
quelling the Hagi- and Seinan revolts and suppressing the Movement
for Freedom and People’s Rights ( Jiyùminken undò ).120 Although the
government was aware of the preconditions for the revision of the
unequal treaties, namely—among other things—the reform of the legal
system and with it the enforcement of penalties, there were only
a few amendments during the nine years from 1872 to 1881. After
the end of the Seinan revolt 2,700 persons were sentenced to impris-
onment and that was the impetus to build large modern central pris-
ons with six wings at Koizumi (Miyagi prefecture), modelled after a
prison in Belgium in the form of the maison-central, and at Kosuge-
chò in the Katsushika district of Tokyo city. The new structure of
these prisons (shùchikan) had been recommended by Motohiro Onoda,
a high police officer who had studied the prison systems in Europe.
Each of these prisons took in the convicts of eight prefectures sen-
tenced to at least one year and a half of imprisonment with hard
labour, the Tokyo prison also those in the custody of the police
headquarters.121 Other central prisons were erected in the eighties:
Kabato, Sorachi and Kushiro in Hokkaidò, Miike in Kyùshù. A
remarkable innovation was the rule that prisoners who were released
on probation were not allowed to leave the prison but had to spend
the time on probation in special rooms within the prison. This rule
was extended to a prisoner who had served his term if there was
no one to receive and supervise him after release and no accessory
penalty of police surveillance had been imposed or if he had no
money to travel home.122
119
Ishii/Chambliss, (note 7) at 155 and 204 respectively.
120
See chapter 1.1.
121
NKG at 487–488.
122
NKG at 583.
Japan did not partake in the first International Conference on

Prison Affairs in 1872, but presented to the second conference at
Stockholm in 1878 a written report on the history of the Japanese
prison system and on the conditions in the prisons, in describing the
achievements of modernization in Japan; that was to support the
endeavour to have the unequal treaties revised. No sooner than in
1895 a delegate of Japan was sent to the fifth International Conference
on Prison Affairs in Paris.
Together with the (old) Criminal Code (keihò ) and the Code of
Criminal Instruction (chizaihò ) the Regulations for Prisons (kaitei kan-
gokusoku), laid down in September 1881, i.e. an amendment of the
Prison Regulations of 1872, came into effect on 1 January 1882.
The new regulations consisted of four books, fifteen chapters, and
113 articles, and dealt with prison offices, construction, transfer of
prisoners, illness and death, correspondence, visits and many other
details. Now there were six types of prisons: police cells (ryùchijò ),
detention houses (kansò ), reformatories (chòjijò ), custody houses (kòryùjò ),
prisons with hard labour (chòekijò ), and penitentiaries (shùjikan or
shùchikan). The police cells and detention houses took in prisoners
awaiting trial. Non-indictable persons and, at the request of a par-
ent or grandparent, rowdy and depraved youngsters were disciplined
at the reformatories; custody of the latter group was discontinued
under an amendment of July 1889.123 The custody houses were estab-
lishments in which persons sentenced to one to thirty days impris-
onment were locked up. Prisons with hard labour and penitentiaries
were alike, the latter to be erected in Hokkaidò (see above), and to
take in severely punished criminals. There were a few penitentiaries
in other parts of the country too; they had to put up temporarily
prisoners on their way to Hokkaidò. With the exception of peni-
tentiaries prisons of each type should be erected in every prefecture.
The situation within the prisons was distressing and difficult to
bear owing to the fact that the number of prisoners was great,124
that the Ministry of Home Affairs had imposed the expenses of the
regional prisons (which hitherto had been paid out of the state’s
123
NKG at 601 and appendix at 152. The dates given by Ishii/Chambliss (note
7) at 463–464 (Ishii: 1890) and 537–538 (Chambliss: 1881) might be misprints.
124
Bindzus/Ishii (note 103) at 16 state that the average number of prisoners from
1877 to 1885 was 50,000 every year.
762 procedural law
budget) upon the prefectures to be paid from the regional tax125—

a measure which caused frugality, and, finally, that the director of
the Prison Bureau of the Home Ministry, Kunimichi Ishii (from July
1879 to June 1885), who had been a lieutenant colonel of the army
and a high-ranking police officer was “a man of military character.
He regarded the people as rubbish and had no sense of compas-
sion”.126 The prisoners did not experience the formerly proclaimed
lenient treatment but had a very rough time and became restless.
There were many break-outs and much violence within the prisons.
In the first years of the eighties more than 1,000 prisoners yearly
broke out or attempted to do so.127 The chronicle in NKG128 records
numerous cases of violent disturbances, break-outs and arson.
In June 1885 the Prison Bureau in the Ministry of Home Affairs
was disestablished, and its duties were transferred to the Police Bureau
and within it the Prison Section. The director of the Police Bureau
was Keigo Kiyoura, who realized that the reform of the prison sys-
tem was essential for the revision of the unequal treaties. In the
period of his office until April 1891 he rendered outstanding ser-
vices to the reform. First, in July 1886, he set up prison bureaus
with all prefectural authorities, took the enforcement of penalties
away from the police and aimed at total independence of the prison
officials. Second, he sent a delegation to Europe and America to
study the prison system there. Third, he had the Regulations for
Prisons amended in July 1889, and fourth, he founded the National
Training Institute for Prison Officials (Kokuritsu kangokukan renshùjo). At
this institute, which was established in the Tokyo penitentiary, prison
officials of all ranks and candidates were instructed and trained
for six months. The director was the governor of the penitentiary,
Kingo Ishizawa. Among Japanese teachers the German Kurt von
Seebach was engaged as instructor; he was held in great esteem and
under his guidance the knowledge of prison systems made good
progress. Soon after his early death in September 1891 the institute
was closed. When in 1899 the revised treaties had become opera-
125
NKG, appendix at 78. From October 1900 the expenses were borne by the
state again, loc. cit. at 222.
126
Takikawa (note 103) at 217.
127
Bindzus/Ishii (note 103) at 16.
128
NKG, appendix following p. 1356; see also at 532 et seq. Takikawa (note
103) at 217.
tive well trained police and prison officers were urgently needed, and
so a Police and Prison Academy (Keisatsu kangoku gakkò) was set up;
its activities ended in March 1904.
On 7 March 1888 the Prison Society of Great Japan (Dai-Nihon
kangoku kyòkai ) was founded. It intended to improve the situation of
the prisons, wanted to cooperate with religious and educational groups,
and edited a journal.
In that period of strong endeavours to reform the prison system
the Regulations for Prisons were, as shortly mentioned above, amended
by Imperial ordinance no. 93 of 1889. In addition, the Ministry of
Home Affairs laid down Rules for the Application of the Regulations
(Kangoku shikò saisoku). The main points were:
(i) The prisons were subdivided into six species: prisons with hard
labour (shùjikan) for convicts sentenced to penal servitude, exile
or lifelong servitude under the old law; transitory prisons (kariryùkan)
for the detention of prisoners on their way to a shùjikan; district
prisons (chihò kangoku) for confining prisoners sentenced to impris-
onment and women sentenced to penal servitude; confinement
houses (kòchikan) for accused persons; cells for temporary custody
of suspects (ryùchijò) within the police offices took in persons who
were punished with a fine and went to jail instead and persons
punished with arrest; reformatories (chòjijò ) for nonindictable
young persons as well as deaf-mute criminals.
(ii) The custom of having prisoners going around as informers and
slave-drivers, a survival from the prison administration of old,
was put an end to because those inmates were inclined to take
delight in their authority and slander other prisoners, and gave
rise to bad practices. But, in reality, general utility men and
cleaners took their place, meddled with various matters within
the prison and created all sorts of evils. Wicked customs which
had lasted for years could not be eradicated in a day.129
(iii) In order to encourage the spirit of treatment according to classes,
the new Regulations laid down rules for kind handling of pris-
oners with a commendable record, and opened the road to reha-
bilitation and repentance.
(iv) Details of grouping the prisoners according to age.
129
NKG at 601.
764 procedural law
(v) Varying detention, relating to the type of crime and the age
of the accused.
(vi) Kind treatment of unconvicted prisoners. Disciplinary punish-
ment of them was abolished and, unless the purpose of cus-
tody was endangered, they were allowed to provide for their
meals themselves etc. and to mitigate the restriction of personal
freedom as much as possible.
(vii) Custody in a reformatory on request was abolished, the per-
sons concerned were committed to the care of an Institute of
Juvenile Correction (kankain), predecessor of the Reform School
(kyògoin) under the Law of Juvenile Correction (Shònen kyògo hò)
of 5 May 1933.
(viii) Prisoners disciplinarily punished by reduction of food or a dark
cell had to be visited by a doctor. The provisions concerning
the preservation of health were expanded, the personality of
the inmate respected and his or her health paid attention to.
(ix) As the stay of helpless persons who had served their term in
prison was not in accordance with the nature of detention, the
provisions related to that were repealed.
In the first years after the Meiji restoration the Buddhist Shin-sect,
Òtani branch, started the moral reform of prisoners by exhorting
talks and lectures. Within three decades various religious groups
became active at more than 130 prisons.130 Their work was inte-
grated in the governmental programme for the education of the
people.131 At the beginning Shintoists, Buddhists and Confucianists
cooperated in teaching practical ethics in colloquy, but soon regu-
lar sermons in the prisons were thriving and the lessons passed to
the different sects. Since October 1878 Christian priests too were
allowed to lecture at the Tokyo Ishikawajima prison every Saturday.
130
NKG at 753–761.
131
In order to unify church and state the Ministry of Religious Affairs (kyòbushò)
was founded in 1872. Its business was to get control over the national sentiment
and religion. The guidelines for clerical teaching were laid down as ‘Three Fundamental
Articles on Creed’ (sanjò kyòsoku or kyòken sanjò) of 28 April 1872: 1. “Adhere to ven-
eration of the gods and love of the country”, 2. “Define the laws of nature and of
humanity”, 3. “Let the people respect the supremacy of the Emperor” [Nihon rek-
ishi daijiten (Great Dictionary of Japanese History), vol. 9, 145 (1958).] That was
influenced by Shintoism and Confucianism. Buddhism would contribute the doc-
trine of causality. The Ministry of Religious Affairs was disestablished in 1877, The
religious affairs were taken on by the Ministry of Home Affairs.
70–80 prisoners used to attend. In March 1881, however, the gov-

ernor of the prison felt that the mixed teaching by Shintoists, Buddhists
and Christians would confuse the convicts, and therefore decreed
that only the Òtani school of the Shin-sect should teach one doc-
trine of faith.
School attendance of the prisoners was instituted still earlier. Ap-
parently, the Ishikawajima prison was the forerunner.132 The prisoners
were taught reading, writing, and arithmetic. For advanced classes
there were lessons in geography, history, physics, and natural history.
In March 1881 several orders (tasshi) were issued by which the
structure of the prison personnel was regulated. The teachers (kyòkaishi)
got their position in that structure. At first, laymen were engaged,
but afterwards priests of various sects helped. Since the prefectures
did not have sufficient means to engage enough secular teachers and
there were no teachers on the staff who acted for charity’s sake as
before, the administration appealed to the main temples to dispatch
clergymen to perform the regular teaching business.133
Art. 94 of the Regulations for Prisons of 1881 dealt with details
of education in the reformatories.
The amended Regulations for Prisons of 1889 did not principally
alter the existing conditions. The rules for application laid down that
the teachers had to lecture not only in classes but also to hold indi-
vidual talks with prisoners. More and more institutes for the train-
ing of teachers were established by the two Honganji branches.134
After the enactment of the amended Criminal Regulations (Kaitei
ritsurei ), under which the penalties of corporal punishment and ban-
ishment were abolished and generally substituted by penal servitude,
the number of prisoners suddenly increased and the facilities for
work inside the prisons were no longer sufficient. Therefore, work-
ing outside the prison was extended and in the various prefectures
several kinds of work were introduced.135 Since there were not enough
warders to send the convicts out of the prison under guard their
132
NKG at 765.
133
NKG at 800.
134
The Buddhist Jòdò Shinshù (sect) has two main temples in Kyoto: The west-
ern and the eastern Honganji (Temple of the Original Vow of Amida Buddha). The
western temple belongs to the main branch, the eastern temple to the Òtani branch.
For the institutes see NKG at 897–898.
135
NKG at 1139 et seq.
766 procedural law
supervision was restricted to rounds from time to time, and it was

forbidden to escort a single convict, as had often happened before,
but only groups.
Most dreadful conditions must have prevailed with the work at
the coalface down the mines. A famous professor of criminal law,
Asatarò Okada, raised the question whether mining could serve the
main purpose of punishment, namely repentance and change for the
better. To find an answer he studied the situation of the convicts in
the Takinosawa mines at Horonai in the Ishikari district of Hokkaidò,
and published a report about his experience in his book “Nihon keihò
ron” (On Japan’s Criminal Law), 1894.136 The conditions were rather
horrible. Severe illness and injuries were the order of the day, the
sanitary facilities were inadequate and the supply of fresh air insufficient.
In 1884 about a quarter, in 1885 about a third of the convicts in
the mines were injured. The number of warders was too small, and
the convicts generally could behave at will. An average of ten con-
victs escaped yearly. Civilian miners who were working side by side
with the convicts brought dainty food and tobacco as presents, for
bartering or sale. The prisoners also knew how to make spirits, and
when they got drunk they gambled and acted indecently after hav-
ing feigned that they had done the prescribed work, which in real-
ity had been accomplished by others, and in this way having conned
the warders into granting them leisure. Due to these schemes many
mining convicts felt as if they were in the Elysian fields in compar-
ison with the stern treatment in the prisons. Mining by convicts at
Horonai was given up in November 1894.137
When the revised treaties came into force in 1899 the Regulations
for Prisons of 1889 had to be amended. They did not provide for
the execution of sentences on foreigners because of their extraterri-
toriality. Now the foreigners were subject to Japanese jurisdiction.
Since the foreigners were not accustomed to the Japanese way of
life, manners and customs, they were to be treated differently from
Japanese prisoners. To this end, the amendment stipulated, in addi-
tion to some relief in favour of all prisoners, that the foreigners
should be released from work on their national or religious holidays.
Moreover, the Ministry of Home Affairs, after deliberation with the
136
Quoted in NKG at 1257–1260.
137
NKG, appendix at 189.
prison governors, issued ‘Instructions Concerning Standards of the

Treatment of Convicts who are Strange to Manners and Customs’
(Fùzoku shùkan wo i ni suru shùjin shogù hyòjun ni kansuru naikun, usu-
ally: Gaikokujin kòkin shogù hyòjun), consisting of twenty articles.138 They
dealt with the size and furnishing of cells, food, clothing, medical
care, religious practice, communication etc.
By Imperial order (chokurei ) of 26 April 1900 the authority for
supervision of the prisons was transferred from the Ministry of Home
Affairs to the Ministry of Justice, which took up business on 1 July
of the same year.139 Under the influence of western prison systems
the demand for individual treatment of convicts gathered strength,
and as a start the Ministry of Justice in December 1902 established
a borstal at the branch prison of Kawagoe, Saitama prefecture, where
male youths from eight to sixteen years ( juvenile convicts and inmates
of reformatories) from Tokyo and its vicinity were taken in.140 In
October 1903 the Kawagoe branch prison was made a real refor-
matory and, unofficially, a name-plate “Kawagoe School for the
Protection of Juveniles” (Kawagoe jidò hogo gakkò) was put up.141 This
first juvenile prison was soon followed by such institutions at Nanao
(October 1903), Karatsu and Kumagaya (November 1903), Numazu
(December 1903), Nagaoka (August 1905), Nakamura branch of the
Fukushima prison (October 1905), Sumoto ( January 1906), Odawara
(February 1906), and Kanazawa (March 1906).142 The way of edu-
cation and the details of the lessons were not the same everywhere,
but on the whole the system was regarded as most progressive.
The Law Governing Reformatory Work (Kankahò) of 9 March 1900
called for the establishment of reformatory schools (kanka’in) for juve-
nile delinquents and youths at risk. The Ministry of Home Affairs
as supervisory authority encouraged the prefectures in October 1900
to set up such schools and, as far as possible, take in youths even
though they were already inmates of a reformatory. But since the
prefectural assemblies had to decide on that only one prefecture
138
NKG at 1038–1041.
139
NKG, appendix at 218, 220. Shihòenkakushi (note 6) at 195, 198. M. Takikawa
(note 103) at 225. The year 1903 noted by Bindzus/Ishii (note 103) at 13 seems
to be a misprint.
140
NKG at 902 and appendix at 231.
141
NKG, appendix at 236.
142
NKG at 902–903.
768 procedural law
(Kanagawa) established a reformatory school during the next two

years. No sooner than in 1917 an Imperial ordinance (Kokuritsu
kanka’in rei ), promulgated on 18 August, decreed the founding of
national reformatory schools; an example of them was the ‘Musashino
gakuin’ in the village of Daimon, district of Kita-Adachi, Saitama
prefecture. The above-mentioned juvenile prisons served the purpose
of individual treatment of young persons instead.
To keep track of measures against juvenile delinquents it should
be remarked that the Juvenile Law of 1922 (Shònenhò) listed, among
a catalogue of nine kinds of measures, sending them to a reforma-
tory school or to a house of correction (kyòsei’in).143 The reformatory
schools pursued the ideas of the Elmira system, created in 1876 by
the prison governor Zebulon R. Brockway at Elmira, N.Y. That
system was based on the thought that a criminal could be reformed,
that reforming him was his right and the duty of the state, and that
the means of reforming were individual treatment and education.
The Law Governing Reformatory Work was amended in 1908 so
that persons up to eighteen years old could be placed in the refor-
matory school,144 and repealed by the Law Concerning Juvenile
Tuition and Guidance (Shònen kyògo hò ) of 4 May 1933. The National
Institute of Juvenile Tuition and Guidance (Shònen kyògo in) took the
place of the reformatory school. Its successor was the Institute of
Tuition and Guidance (Kyògo in), art. 44 of the Juvenile Welfare Law
( Jidò fukushi hò ) of 1947. The houses of correction were introduced
under the Law for Houses of Correction (Kyòsei’inhò ), enacted together
with the Juvenile Law in April 1922. There young persons, male
and female, not older than 23 years, were taken in under order of
the Juvenile Court or in case of art. 882 of the Civil Code.145 The
law was abolished by art. 19 of the Reformatory Law (Shònen’inhò )
of 15 July 1948. The then existing houses of correction were regarded
as reformatories (shònen’in).
143
Art. 4 of the Juvenile Law.
144
Ishii/Chambliss (note 7) at 505 and 573 respectively.
145
Art. 882 Civil Code: “(1) The father or the mother in exercising parental
authority may themselves discipline their child within the necessary extent or put
the child into a disciplinary institution with the approval of the court. (2) The dura-
tion of the child’s stay in the disciplinary institution will be decided by the court
for a maximum period of six months. The duration may at any time be shortened
on request of the father or mother.”
On 28 March 1908 the Prison Law (Kangokuhò ) was promulgated

with effect from 1 October of the same year. It accompanied the
New Penal Code. The law followed the Official Prison Regulations
of Prussia and, but for a few amendments, remained in force until
now. Details were regulated by supplementary provisions in the form
of a ministerial ordinance (Kangokuhò shikkò kisoku) of 16 June 1908,
which has been amended several times. The new law, the ordinance
and their amendments brought improvements for the prisoners. The
prisons with hard labour (shùjikan) and the old reformatories (chòjijò )
were abolished. Under the new system there were four types of pris-
ons: (i) prisons for convicts sentenced to penal servitude (chòekikan),
(ii) prisons for persons sentenced to imprisonment (kinkokukan), (iii)
houses of detention for persons sentenced to imprisonment of less
than thirty days (kòryùjò ), (iv) prisons for persons who were locked
up while awaiting trial or having been sentenced to death (kòchikan).146
The provisions for confinement in single or communal cells were
revised. Work had to be assigned to the prisoners in view of preser-
vation of their health and of economy as well as of the prison term,
state of health, skill, profession, future living etc. of the prisoners.
Visits and correspondence were made easier. The kind of penal servi-
tude was to be recorded in detail, and measures suited to the occasion
could be taken. On the whole, the Prison Law and the supplemen-
tary provisions were progressive; they were able, in essence, to sur-
vive the political, legal and social changes through nine decades until
the present day. The amendments followed the current world wide
concepts of criminal politics. The most remarkable supplement before
World War II was the ordinance of the Ministry of Justice of 25
October 1933: Ordinance for Progressive Treatment in the Prisons
(Gyòkei rinshin shogù rei ), still in force. Its object is “to press the con-
vict for repentance, to mitigate his treatment according to the degree
of his fierce endeavour, and gradually make him fit for social life”,
art. 1. It may be said that by this ordinance a new epoch of the
Japanese penal administration opened up.147
146
Under art. 1 paragraph 3 Prison Law police cells may be used as substitutes
for prison cells; at that time there were not enough prisons. For the problem aris-
ing in this respect see P. Schmidt, chapter Law of Criminal Procedure, p. 708
n. 228.
147
CHAPTER TEN
LEGAL EDUCATION AND LEGAL PROFESSION
Wilhelm Röhl
10.1 Legal Education
Prior to the Meiji Restoration there was no generally organized legal

education nor a system of training, examination and process of admis-
sion to the profession. Some legal knowledge was conveyed by pri-
vate or monastic elementary schools (terakoya) insofar as it happened
that textbooks contained legal passages or the wording of a law was
used for reading exercise.1 Originally, the study was reserved for the
nobility. No sooner than in the Edo (or Tokugawa) period (1603–1867)
the schools became institutions for the education of common peo-
ple. Reading of occasional legal texts continued, and during the rule
of the Shogun Yoshimune Tokugawa (1716–1745), a person of cul-
ture, the authorities began to take an interest in the legal education
as pursued by the terakoya. The Shogun himself set an example of
support when he visited a terakoya in 1722 and praised the head-
master for using a copy of provisions issued by the successive Shoguns
as a textbook. The headmaster received money and a reader on
morals as a reward. A long time afterwards, in 1843, the govern-
ment ordered the writing masters to add official decrees and announce-
ments to the textbooks of the school.2 That was the first governmental
intervention with the aim to introduce a modest legal education at
school. But that education was not required for appointment to an
office; the officials were selected from persons of samurai status or
followed into hereditable positions.
1
Masajirò Takikawa, Nihon hòseishi kenkyù (Study of Japanese Legal History),
1941, p. 590 et seqq., also for the following text.—The earliest appearance of tem-
ple schools went far back in history, presumably to the monarchial age which ended
in the 12th century.
2
Ryòsuke Ishii (ed.), Tokugawa kinreikò (Tokugawa Interdicts), first collection, vol.
5, (1959), no. 3224. The order dealt with other matters too.
legal education 771
From ancient times, schools were established by the state and

regional authorities. The Tokugawa bakufu set up government schools,
and also in the feudal domains schools were founded by the clan
governments. Those schools were places for prospective officials too.
Political science and law were often part of the curriculum, espe-
cially towards the end of the bakufu, since the necessity of acquiring
knowledge of the conditions in western countries became evident and
their political and legal systems had to be studied.3
I. As a result, the new Meiji government could employ persons
who had some knowledge of administrative and judicial subjects. But
their number was small and did not by far meet the needs for judi-
cial officials under the new system and its efforts to separate the
courts of law from the executive. In order to make sure that qualified
personnel would be available the Ministry of Justice set up a Law
School, called Meihòryò, on 9 November 1871. The staff of the Law
School was estimated at quite a few people: employees of different
ranks from the director to the lowest co-worker. Serious activity
started slowly; places for twenty students were scheduled in August
1872. At the same time Henri de Riverol4 of France became a
teacher at the Law School. French law was dominant in the early
studies of foreign legal systems, and until the establishment of the
French law section of Tokyo University in 1885 the Ministry of
Justice was the principal promoter of French legal science.
Together with the Office Regulations for the Ministry of Justice
of 5 September 1872, the Office Regulations for the Law School
(Meihòryò shokusei shòtei ) were issued, under which the members of the
teaching staff were named ‘legal officers’ (hòkan). Below the director
and his deputy there were six classes of them: senior, middle, junior
officers and their deputies. Their duties were to study old and new
law as well as foreign law, prepare options for the director, delib-
erate on new laws, compile the laws and regulations, discuss and
settle dubious illegal incidents, and give lessons to the students. The
director, Eisei Kusuda, had to look after other concerns too, of which
3
Officials came mainly from the governmental Shòheizaka gakumonjo in Edo, a
forerunner of the state universities.
4
Shihò enkakushi (A History of Justice), Tokyo 1939, compiled by the Ministry of
Justice and edited by the Hòsòkai ( Jurists’ Association), p. 17. Usually, Georges
Bousquet and Gustave Émile Boissonade de Fontarabie are named as the first
French teachers of law. But they were appointed not until March 1874 (Shihò
enkakushi, p. 25).
772 legal education and legal profession
he was relieved in February 1874—that may be a sign of the Law

School’s prime. But on 4 May 1875 the school was closed. Five days
later its business was temporarily transferred to the Supreme Court.
When the Ministry of Justice was reorganized, on 30 August 1875,
a newly established Jurisprudence Section (hògakka) within the second
division5 of the Ministry became responsible for legal education. An
educational institute (hògaku kyòjò) was built on the premises of the
Ministry, and on 5 March 1876 a special school for French law
(Fukkoku hòritsu gakka senmon gakkò) was set up in the Ministry. Regulations
governing the admission of candidates to the special school controlled
the entry and 100 students were admitted; they began to study at
the end of September 1876. In January 18776 the Jurisprudence
Section was dissolved and the School Section (gakkòka) followed it.
This section was renamed Students Section (seitoka) in February 1880
and, one year later, became a separate division, but was again reor-
ganized as Educational Affairs Section (gakumuka) and in the end
renamed Tokyo Law School (Tòkyò hògakkò ), after the responsibility
for the school system had moved to the Education Ministry in 1884.
Finally, the Tokyo Law School was united with Tokyo University,
Faculty of Law, French Law Section, on 29 September 1885.7
The course at the ministerial law school consisted of two parts:
preparatory ( yoka) and regular course (honka). The standard course
went on for four years, the subjects being economy and civil law in
the first year, civil law, penal law and criminal procedure in the sec-
ond, civil law, administrative law and civil procedure in the third,
and commercial law, administrative law and international law in the
fourth year.8 With regard to the expectation that consular jurisdic-
tion over foreigners was to be abolished, an intensive course (soku-
seika) was established in order to provide a sufficient number of
Japanese judges quickly.9
Foreign teachers at the school came from France: Émile Gustave
Boissonade de Fontarabie and Georges Bousquet10 in March 1874.
5
Area of responsibility: personal records, staff, collection of laws, jurisprudence,
translations (shortly afterwards moved to a separate division), diary.
6
According to Kame’ichi Hosokawa, Nihon kindai hòseishi (A History of Modern
Japanese Law), 1961, 87:1878. Shihò enkakushi (note 4) dates to 12 January 1877.
7
K. Hosokawa (note 6), 86–87. M. Takikawa (note 1), 612.
8
State of 1884, M. Takikawa, loc. cit.
9
M. Takikawa, loc. cit.
10
Bousquet’s employment ended in March 1876.
legal education 773
Next came Pierre Mourier (September 1876–April 1880), Prospère

Fouque (September 1877–September 1879), Jean Arrivet (March
1879 –July 1880 and from 1884), Georges Appert (November
1879–1889), and Antoine Fabre ( June 1880–August 1881). An
American lawyer, George W. Hill, was employed as a teacher from
July 1877 to March 1881.
There is no record in the Shihò enkakushi (note 4) as to the date
when students were admitted to the course at the Meihòryò and when
their study ended. Possibly they were the students whose graduation
was entered in July 1876. In April 1876, 41 students were admitted
to the legal education, now managed by the Ministry of Justice
directly. They were instructed about subjects of civil and criminal
law, led to discuss fictitious laws and decisions and thereby study
legal principles as well as obtain practice in judicial business. The
students were called ‘extraordinary attendees’ (ingai shusshi );11 the term
was two years. At the same time as the School Section a Checking
Section (shòsaka)12 was set up in the Ministry on 12 January 1877.
Fifty students were admitted there on 31 July 1877; they had to sim-
ulate laws and decisions. Foreign teachers were Boissonade and Hill;
the term was fixed at two years. The students were called ‘attend-
ing students’ (shusshi seito).13 Forty-seven of them graduated on 25
September 1879.
When in May 1880 the lawyers’ system was reformed14 the respon-
sible sections of the Justice Ministry were rearranged too. The
Checking Section was abolished, the Staff Section became responsi-
ble for the lawyers’ affairs and the Students Section for the law stu-
dents’ affairs. Within the Students Section two charges were set up:
for day-students and for boarding students. After the enlargement of
the lecture halls and self-study places 141 students were admitted in
February 1880; their course was scheduled to last three years. In
September 1880 their classes were made the ‘regular course’ (honka)
with Appert as French lecturer. 53 students were newly admitted to
the ‘preparatory course’ ( yoka) where Fabre was the French lecturer.
92 law students and 39 former attending students received their
11
‘Not a member of staff but present at service’. From December 1876 the word
was no longer used.
12
Shòsa = examination by reference.
13
The same meaning as ingai shusshi, see note 11.
14
See chapter ‘The Lawyer’.
diploma. That there were students who studied at government expense

and those who bore the cost themselves is shown in an entry of
September 1883.15
It is worth mentioning that the Ministry of Justice could confer
the title ‘bachelor’ (gakushi ) on students who had completed the reg-
ular course of its law school. When, on 10 July 1884, the ceremony
of presentation of certificates was held, 33 out of 37 students of the
regular course got the title ‘bachelor of law’ (hòritsu gakushi ) and the
remaining four students received a document attesting that they had
completed the course. Some weeks later 25 students of the old Meihòryò
too were appointed ‘bachelor of law’. In the autumn of 1884 law
students returned from France, where they had been sent for study.
Two of them had obtained the grade of ‘docteur en droit’, five had
become ‘licencié en droit’ and one returned as ‘bachelier en droit’.
Until 1884 there is no statement of any examination the passing
of which was a precondition of the appointment as judge. But when
the education had been moved to the Ministry of Education the
Justice Ministry issued Rules Governing the Appointment as Judge
(hanji tòyò kisoku) on 26 December 1884. It was ruled that only a can-
didate who had a doctorate or was a lawyer or had passed the exam-
ination was eligible, unless otherwise provided. Accordingly, written
and oral examinations had to be arranged. The first judges exam
was held on 1 August 1885; three candidates were successful. The
topics had been determined on 27 May: penal law, criminal proce-
dure, English and French property law, law of contract, and law of
evidence. This list reflects the situation of the legal reorientation in
that year. The penal law and criminal procedure had already been
codified; the reform of civil law and procedure was in preparation,
and it was to be expected that English and French law would serve
as models. It is remarkable that English law was named first although
the Ministry of Justice had always favoured French law, and most
conspicuously in none of the three judges examinations, which were
held from 1885 to 1887, was German law at issue whereas, in the
mid 80s, it was easy to see that German law would play a consid-
erable part in drafting new laws. The themes of the second judges
15
Shihò enkakushi (note 4) at 90: “This month 100 law students were admitted at
government expense and 109 students at private expense”. See also under 8 October
1884.
legal education 775
examination held on 1 November 1886 were penal law and crimi-

nal procedure, as before, and English and French civil procedure,
property law, law of contract, and sale and evidence. 35 candidates
passed the exam. On 1 June 1887 77 candidates coming from an
intensive course got through an extraordinary exam; another such
exam was held on 12 September 1887. A great number of candi-
dates took the third regular judges examination in October. In order
to hold the oral exam judges, public prosecutors and officials of
the Ministry of Justice were dispatched to the high courts (kòsoin) in
the provinces where the candidates had been trained in practical
service. 268 candidates were successful. A judges examination in
the same procedure but outside the numbered exams is recorded on
7 January 1887.
The third judges examination was the last one performed by the
Ministry of Justice for the time being, because on 1 January 1888 the
Imperial ordinance on Regulations Concerning Examination, Probation
and Training of Civil Officials (Bunkan shiken shiho oyobi minarai kisoku)
of 25 July 1887 came into force; the term ‘civil officials’ included
all the personnel of the courts of sònin and hannin rank.16 The sònin-
officials had to pass the higher civil service examination (kòtò shiken)
and then go through a period as trainee (shiho). The hannin-officials
had to take the ordinary examination ( futsù shiken); their following
training was called minarai (learning by observation). Persons who
had for a fixed time worked as a judge, public prosecutor, high min-
istry official or lawyer were freed from the higher exam and training.
As to the judges and prosecutors, the situation under the new reg-
ulations lasted less than three years. On 1 November 1890 the Law
for the Constitution of the Courts came into force. It regulated the
legal education of judges and public prosecutors anew, and the
German model was clearly recognizable. A candidate for the post
of judge or public prosecutor had to pass two competitive exami-
nations, between which practical training of three years at the courts
of law and the public prosecutors’ offices had to be completed.17
Later, the period of three years was shortened to at least one year
and a half.18
16
See p. 157.
17
During the training the candidate was called ‘judicial officer on probation’ (shi-
hòkan shiho). The number of candidates was fixed at 100 but later increased up to
nearly 300 (Shihò enkakushi (note 4) at 543.
18
Under laws of 1896, 1901 and 1905 the term could be shortened, each of the
Both examinations and the traineeship were the concern of the

Ministry of Justice, which directed the details. Art. 58 of the Law
for the Constitution of the Courts (LCC) used the expression ‘exam-
ination for the appointment as judge or public prosecutor’ (hanji kenji
tòyò shiken) as a collective name for both exams, although the first
examination alone did not provide the qualification for the appoint-
ment. But he who had passed the first examination was, as soon as
the minister had selected him as trainee, regarded as a member of
the group of judicial officers and, after one year of traineeship, was
by order of his instructing judge allowed to carry out judicial func-
tions at a local court.19 The first exam was the main one, and it
seems to have been an exception if the trainee did not pass the sec-
ond.20 So, the Shihò enkakushi (note 4) recorded the preliminary arrange-
ments and the results of the first exam only. Usually, in May or
June the chairman and the members of the board of examiners were
appointed: councillors of the Ministry, judges and prosecutors, from
1922 lawyers too. The examination was held once a year in November
or December.
In order to estimate whether a candidate was sufficiently fit to
take the examination a pre-exam test ( yobi shiken) was introduced in
April 1905 but suspended after eight years, and in June 1909 it was
decreed that a candidate who did not pass a personality test (shintai
kensa) might not pass the examination.
Art. 65 of the LCC regulated that a person who for at least three
years had been a professor with the Imperial University,21 or a lawyer,
could be appointed judge or public prosecutor without having passed
the examinations, and that a graduate from the law department of
the Imperial University could be appointed trainee (shiho) without
having passed the first exam.
On 17 January 1918 the Ordinance Concerning the Higher
Civil Service Examination (Kòtòshiken rei ) was promulgated22 and the
laws was valid for a couple of years. Law no. 10 of 12 March 1908 regulated
definitely that the practical training had to last one year and a half at the least.
19
From 1902 on a trainee could get a yearly salary of 500 ¥, increased to 1,100 ¥
in 1921 when the trainees were treated as equivalent to sònin officials.
20
Until 1905 the second examination (dai nikai shiken or kòshi) was held at the
high courts and from then on at the Ministry of Justice.
21
When the LCC came into force there was but one Imperial University (Tokyo).
Prior to World War II their number increased to nine.
22
Amended on 28 March 1929.
legal education 777
regulations of 25 July 1887 (see above) were abrogated. As to the

judges and prosecutors, the regulations had become obsolete by virtue
of the LCC of 1890. Now, the Kòtòshiken rei concerned not only the
civil servants of sònin rank, foreign and consular service but also the
legal examination under art. 58 LCC23 and art. 3 of the Lawyers
Law. There was a pre-exam test for all those who had not finished
a school education of a certain level laid down in detail. The main
examination was held in one of two sections: administrative (gyòseika)
or judicial section (shihòka). In the judicial section the subjects of the
written exam were (1) Constitution, (2) national history, (3) civil law,
(4) penal law, (5) two out of commercial law, civil procedure, crim-
inal procedure, to be chosen by the candidate in advance, (6) one
of the following subjects: philosophy, commercial law, civil proce-
dure, criminal procedure (these three left to choose only if not cho-
sen under no. 5), law of insolvency, international private law, economics,
criminal policy, to be chosen by the candidate in advance. The oral
examination comprised national history, civil and penal law.
Temporarily the former order of the exam was retained; in 1923
the Ordinance Concerning the Higher Civil Service Examination
became applicable to the juristic exam. Two officials of the Ministry
of Justice were made regular members of the examination commit-
tees: T. Ikeda, director of the Civil Affairs Bureau, and H. Minagawa,
director of the Personnel Bureau. Extraordinary members were the
Secretary General of the Privy Council, the director of the Bureau
of Criminal Affairs of the Ministry of Justice, judges, public prose-
cutors and professors of the Tokyo and Kyoto Imperial Universities,
20 persons in all.24 Thereby the Ministry of Justice participated in
the examination which the Prime Minister kept under control.25
The examination was held once a year in November or December
in Tokyo. The chairman of the committee used, in February, to fix
the period to apply for admission and, in June, to constitute the
23
Under an amendment of art. 58 of 14 April 1914 this article referred to the
first examination only. It was the entrance to a career as a judge or a public pros-
ecutor.
24
Shihò enkakushi (note 4) 366, 369. The number increased according to the num-
ber of applicants.
25
The final examination (kòshi ) of the trainees remained the responsibility of the
Minister of Justice. The examination committee consisted of the vice-minister as
the chairman and several members of the ministry and the courts.
committees. Date and place of the examination had to be published

in advance in the Official Gazette.
As a matter of course, the number of successful candidates var-
ied year by year. 87 candidates passed the first exam under the new
system in the judicial section on 27 December 1923; they all were
appointed trainees. But the posts of trainees were limited, and in
later years not all of the successful candidates could be received into
the group of trainees. For instance, in November 1931 415 candi-
dates passed the exam but only 61 of them were appointed trainee.
This greater or smaller difference became the normal situation.
In 1948 the Ordinance Concerning the Higher Civil Service
Examination was abrogated, and hereafter the examinations went by
the rules of the Court Organization Law (or Court Law, Saibanshohò)
of 1947 and the Judicial Examination Law (Shihò shiken hò) of 31
May 1949. The latter law applies to prospective judges, public pros-
ecutors and lawyers. The candidate has to take two exams26 between
which he or she must go through a two years of training as a judi-
cial apprentice (shihòshùshùsei ). The training is organized by the Judicial
Research and Training Institute (shihòkenshùjo) under the Supreme
Court. The first exam is still the most important one; its purpose is
to judge whether the candidate has the proper education and gen-
eral scholarship to take the second examination. Since a special study
is not prescribed and anyone may apply, moreover the apprentice
gets a salary and the posts are limited, the examination is hard.27
A short remark should be added on the ‘unification of the bench
and bar’ (hòsò ichigen). The meaning of this term, which was, some-
times understood as the conception of an exchange between jurists
in the civil service and practising lawyers, was comprehended as the
system of appointing judges from members of the bar, more or less
on the model of Anglo-American usage. In July 1962 an extraordi-
nary committee for the investigation of the judicial system was set
up under Law no. 122. Art. 2 of this law defined the term as the
26
Specific candidates are exempted from the first exam, art. 4 of the Judicial
Examination Law.
27
For details see A. Petersen, Das erste juristische Staatsexamen und dessen
aktuelle Reformdiskussion (The First Japanese Judicial State Exam and the Current
Discussion About a Reform), in Zeitschrift für Japanisches Recht ( Journal of Japanese
Law), vol. 1, 32 (1996). It is not unusual that less than five per cent of the appli-
cants are successful.
legal education 779
‘system under which, principally, the judges are appointed from per-
sons who are qualified as a lawyer and have worked in legal busi-
ness other than as a judge’. Previously, the Federation of Japanese
Bar Associations had founded a committee for the investigation of
the subject, and in July 1953 the committee had suggested (i) that
all judges should be chosen from persons who had worked as lawyers
for at least ten years, (ii) that the appointment required the Bar
Association’s or Federation’s recommendation.
Prior to these suggestions it had also been proposed that the pub-
lic prosecutors should be included, that the Legal Research and
Training Institute, which under art. 14 of the Court Law of 1947
is an establishment of the Supreme Court, should pass into the
responsibility of the Federation and that the Federation should become
the parent organization of all members of the legal profession.28
Those radical ideas which comprised the demand to supervise legal
education were not realized. But there are some rules which had a
part in unifying. The training of future judges, prosecutors and lawyers
is the same. One third of the justices of the Supreme Court are
selected from the bar. Lawyers may be appointed judges of the lower
courts when they have practised for a prescribed period.
II. The judge and the public prosecutor were a part of the state
power, civil servants incorporated in a hierarchical order, a system
of grades and status, outside the dispensation of justice bound to the
instructions of the superior. The state had to care for the compe-
tence and reliability of them with respect to the just and legal per-
formance of their professional duties. Therefore, the government
considered it to be its own responsibility to educate the prospective
judges and prosecutors with the aim of raising officials of the judi-
cial service who were conscious of their commitment.
Compared with that, the state was less engaged in the education
of advocates and lawyers. No sooner than in 1876 an examination
had to be passed before the advocate could get a license allowing
him to plead in court. The Ordinance Concerning Advocates (daigen-
nin kisoku) of 22 February 1876 was caused by evils within pro-
fessional circles, and the concern of the ministry was limited to keep-
ing away incompetent or dishonourable spokesmen from the court-
room. So, it seemed sufficient to have the examination held by
28
T. Ogiyama, (section ‘The Lawyer’, note 2) at 345 et seq.
the district authorities in the area where the court in which the appli-
cant wanted to plead was situated. The examination requirements
did not go beyond the surface, and where the applicant had got his
knowledge was not significant. When in 1880 the Ordinance Con-
cerning Advocates was amended, it was prescribed that the appli-
cant had to submit a curriculum vitae enclosed with the written
application. There he had to state when and by whom he had been
taught and instructed.29
The LCC of 1890 created a new system of lawcourts. In the same
year the codes of civil and criminal procedure dealt with the role
of lawyers, now called bengoshi. Therefore, it was considered neces-
sary to enact the Lawyers Law (1893), and on 12 May 1893 the
Lawyers Examination Ordinance (bengoshi shiken kisoku) was issued by
the Ministry of Justice which had been authorized under art. 3 of
the Lawyers Law to order the details. The exam was held once a
year. The examination committee, every year constituted by the
Ministry of Justice, consisted of judges, public prosecutors and high
officials of the Ministry.30 There were no requirements as to a spe-
cial study but the applicant had to state which school(s) he had
attended and which courses completed. The exam was written (held
at the high courts or district courts) and oral (held at the Ministry
of Justice). Subjects of the exam were civil law, commercial law,
penal law, and civil and criminal procedure. In 1922 the Lawyers
Examination Ordinance was repealed, and from 1923 the candidate
for the Bar had—like the judges and public prosecutors—to take the
exam under the Ordinance Concerning the Higher Civil Service
Examination. But differently from judges and prosecutors a practi-
cal training and a second examination were not required.
Such requirements, however, were introduced by a new Lawyers
Law of 1 May 1933. Now, the candidate for a lawyer’s career had
to pass the higher civil service examination, judicial section, and then
as an articled clerk (bengoshi shiho) for one year and a half learn the
practical business of a lawyer.31 The education was concluded by the
29
For details see section ‘The Lawyer’.
30
No sooner than in 1922 lawyers too were admitted to the committee, Shihò
enkakushi (note 4) at 352. In 1913 the Tokyo Bar Association had demanded that
half of the members of the committees for the judges/prosecutors and lawyers exam-
inations should be lawyers, but that number was not reached.
31
There was no division between barrister and solicitor.
legal education 781
final examination (kòshi ).32 The practical training and the final exam-
ination were not required if the candidate was qualified as a judge
or public prosecutor or had been a full-time judge of the Administrative
Tribunal for at least three years or, also for that period, a judge-
advocate with the army or navy.
After World War II, many new laws were enacted and old ones
amended so that the previous system underwent substantial changes.
The Federation of Japan’s Lawyers’ Associations organized courses
for further vocational training from August 1950, which lasted about
seven or eight months and were very helpful. The training of young
people who want to become lawyers and get through the first legal
examination passed to the Legal Research and Training Institute,
where they are instructed together with the future judges and pub-
lic prosecutors in much the same way.
III. The notaries public (kòshònin) are not included in the legal
education as described above. Compared with their position in west-
ern countries their function in the Japanese legal system is less impor-
tant. The profession was settled no sooner than in 1886 by the
Regulations for Notaries Public (Kòshònin kisoku) of 11 August 1886,
in force from May 1889, and collateral rules. The Regulations were
succeeded by the Notary Public Law (Kòshòninhò) of 14 April 1908.
The notary public need not be a jurist but has to pass an exami-
nation and a practical training for six months; persons qualified to
be a judge, public prosecutor or lawyer do not have to fulfil these
requirements. Under the postwar amendment of the law judges of
the summary court and assistant prosecutors are excluded from this
privilege.
32
Hajime Kaneko, Saibanhò (Law of the Judicial System), 1959, p. 247; arts. 2
and 3 of the Lawyers Law of 1933, in force from 1 April 1936.
10.2 The Judge
As mentioned briefly in the chapter ‘The Courts of Law’ the word

hanji, which since the seventies of the 19th century means ‘judge of
a court of law,’ was originally the title of a civil administration official.
At the time of the Meiji restoration it became the denomination of
the head of a district administration office called saibansho (later mean-
ing a law court) and shortly afterwards changed into the fu (cities)
and ken system.1 No sooner was the ‘Tokyo Court’ established, on
5 February 1872, than hanji became the title of an official who was
in charge of hearing civil and criminal cases in court. The duty of
the former hanji was to handle such cases as well and the Tokyo
Court was a mere section of the ministry, but nevertheless the estab-
lishment of this court meant a first small step towards the separation
of the judiciary from the administration, as announced in the Charter
on the Form of Government (Seitaisho) of 17 June 1868, although
the status of the hanji as administration officials was not altered. In
order to perform the judicial business in the provinces hanji of the
Ministry of Justice were dispatched to the regional authorities.2
Previously, the number and ranks of judicial officials in the early
departments changed as rapidly as the denomination of the depart-
ments. In the Penal Law Administrative Section (Keihò jimuka), 10–25
February 1868 there were no hanji posts, the legal business, if any,
was executed by councillors of state (sanyo). The Penal Law Adminis-
trative Secretariat (Keihò jimukyoku), 25 February–11 June 1868, had
a staff of three councillors of state who, in addition to their admin-
istrative duties, acted as hanji. Then the secretariat was renamed
Penal Law Office (Keihòkan); it existed from 11 June 1868 to 15
August 1869. There and in other offices were two ranks of legal
officers: the hanganji and his deputy (gon-hanganji ). The syllables hanji
appeared in the titles of section officers also: hanshiji und gon-hanshiji.
They all had to check legal matters in the office or the section and
make decisions.3 The hanganji was an official of the 3rd class, the
1
Saibansho as the name of a district administration office was in use for but a
few months in 1868.
2
Hòsòkai ( Jurists’ Association) ed. Shihòenkakushi (A History of Justice), 1939,
p. 14 under 8th month 18th day.
3
The title of hanji continued to exist. Standing alone it meant hanji of the office
(hanganji), not of the section.
the judge 783
gon-hanganji of the 4th, the hanshiji of the 7th, and the gon-hanshiji of
the 8th class. Moreover, there were hanji shiho = young men attached
to a government office before attaining their commission.4 A hanji
shiho could be appointed head of a section without having gone
through the hierarchy.5
When the Department of Criminal Affairs (gyòbushò ) replaced the
Penal Law Office, on 15 August 1869, the posts followed the order
of the ritsu-ryò era about 1100 years ago (kan’i sòtò ).6 Six posts applied
to judicial officers: senior, middle and junior ‘judges’ (hanji ), senior,
middle and junior ‘examiners’ (tokibe).7 They ranked from the upper
fifth to the lower seventh grade; in September 1869 the ranks were
raised by one each. The first senior judge was Shigekata Itami,8 a
high official with the Imperial household.
One month after the founding of the Ministry of Justice (Shihòshò),
the old Chart of Equivalent Court Ranks was abolished, on 24
September 1871. It was replaced by a system of fifteen classes,9 and
the six posts of judges and examiners were assigned to the classes
three to eight. The senior judge was a chokunin, the junior examiner
a hannin, and the officials between them were sònin.10 A few months
later, on 6 December, that order was changed again. To each post
deputies (gon-) were introduced, and they ranked one class lower than
the principal judge or examiner, the twelve posts ranking from the
second to the thirteenth class. In December of that year three junior
judges accompanied the Vice-Minister of Justice Takayuki Sasaki on
a journey to Europe; it was the first trip of Japanese judges abroad
after the Meiji restoration, many others were to follow.
The gradation of the judges and examiners into principals, deputies,
senior, middle and junior positions was abolished on 4 May 1875.
4
Under the Law for the Constitution of the Courts (1890) shiho was the term
for a student during his training between the first and the second examination, art.
58 para 2.
5
E.g. Shihòenkakushi (note 2) p. 3 under 6th month 12th and 28th day.
6
Chart of Equivalent Court Ranks. For details see Ryòsuke Ishii, Meiji bunkashi,
2, Hòseihen (Cultural History of the Meiji Era, vol. 2; Legal System), 89; translated
by William J. Chambliss, Japanese Legislation in the Meiji Era, 1958, 117.
7
See chapter ‘The Courts of Law’, p. 722.
8
Shihòenkakushi (note 2), p. 8 under 8th month 7th day.
9
See Tòkyò Teikoku Daigaku Shiryò Hensansho (ed.), Dokushi biyò (Tokyo
Imperial University editorial office for historical materials, Essentials at Reading
History), 1942, 550 et seqq.
10
See p. 156.
Henceforth, there were seven classes of judge and four classes of

assistant judge (hanjiho).11 The judges were assigned to the Supreme
Court of Justice, the high courts and the prefectural courts,12 the
assistant judges to the high courts, prefectural and local courts. If
there was no court in a prefecture the regional official had to act
as a judge.
At the end of July 1877 the class system was changed once more.
Now, the precedence followed the position in the chokunin, sònin and
hannin system.13 The titles of the judges were reduced to hanji ( judge)
and hanjiho (assistant judge). The appointment to the grade of chokunin
was left to the discretion of the Emperor and, as a rule, connected
with a high position with a court of law14—the appointment used
to be the precursor of a promotion.
Since status and hierarchy were of the utmost importance in the
life of the Japanese the records on rank, grade and class were the main
topic of the annals of the early judiciary. The nature of the judicial
commission was not at issue. The idea of real independence was still
far from the thoughts of the authorities. The presidents of the high
courts and the courts of the first instance (shishinsaibansho) had to con-
vene in the Ministry of Justice once a year on 1 April for one week
at the most.15 Probably, matters of court administration were the
main topic, but the possibility that legal and procedural issues too
were discussed in an authoritarian atmosphere cannot be ruled out.
It is noteworthy that in May 1891 the President of the Supreme
Court had to fight the attempts of politicians to influence the trial
in the Òtsu case.16 But the government encouraged the judges and
public prosecutors to criticize the injunctions and regulations of the
Minister of Justice if they deemed these unrealistic or unhandy and
found them worthy of amendment; in this case a detailed report was
to be submitted.17
11
The ‘class’ of the judges and all the other government officials was called tò.
Assistant judges stood outside the general class system, their class or grade was
called kyù.
12
The prefectural courts were abolished and the district courts established on 13
September 1876.
13
Cf. chapter ‘The Public Prosecutor’.
14
Notwithstanding their grade the presidents or directors of a court had prece-
dence inside their court (Shihòenkakushi ) (note 2), p. 44 under 31 October 1877.
15
Instructions of 7 December 1883.
16
See chapter ‘The Courts of Law’.
17
Shihòenkakushi (note 2), p. 52 under 22 April 1880.
the judge 785
The judges were paid according to rank and class. The pay var-
ied over the years; in the late eighties it was 5,000 to 3,000 ¥ yearly
for chokunin and 2,800 to 300 ¥ for sònin. The public prosecutors, as
a rule, were of one rank and class lower than the corresponding
judges.18
With respect to disciplinary action the regulations concerning the
civil service applied to the judges too. Under the disciplinary direc-
tions (Kanri chòbatsu rei oyobi shobun kokoroe) of 14 April 1876 the Minister
of Justice was authorized to punish a judge by reprimand, depriva-
tion of salary, or dismissal, the last one only after having reported
to the Emperor. By 1886 regulations governing the organization of
the courts19 ruled that a judge could not be pensioned off or pun-
ished disciplinarily unless the case had been investigated in a crim-
inal or disciplinary procedure.20
Moreover, these regulations determined the posts and their names
and rank order anew. As to the judges, there were judges (hanji ) and
assistant judges (hanjishiho) with the peace courts (chiansaibansho), a
president, judges and assistant judges with the courts of original juris-
diction (shishinsaibansho). The court of appeal consisted of a president
and judges; these were called hyòjòkan, and this term applied to the
judges of the Supreme Court too.21
Art. 57 para 2 of the Constitution of 11 February 1889 said that
the constitution of the courts would be ordained by law. That law
was the Law for the Constitution of the Courts (Saibansho kòseihò) of
10 February 1890, in force from 1 November 1890 (below abbre-
viated LCC). Neither the Constitution nor the LCC included a clause
like that in art. 76 para 3 of the new Constitution of 1947: “All
18
Otto Rudorff, Die Rechtspflege in Japan in der gegenwärtigen Periode Meiji
(The Japanese Legal System in the Present Meiji Period), in: Mitteilungen der
Deutschen Gesellschaft für Natur- und Völkerkunde Ostasiens [OAG] (Reports by
the German Association for East Asian Natural History and Ethnology), vol. 4
(1888) pp. 423, 435.
19
Saibansho kansei of 4 May 1886.
20
O. Rudorff, loc. cit. (note 18), at 434.
21
Hyòjò means ‘discussion and decision’. The place of discussion and decision,
hyòjòsho, was the highest law court in the Edo era. Since the peace courts and the
courts of original jurisdiction decided by a single judge, the term hyòjòkan was quite
proper for the judge of a collegiate court like the court of appeal and the Supreme
Court. The same went for the judges of the Court of Administrative Litigation (gyò-
seisaibansho) which decided by at least five judges, Law Relating to Administrative
Litigation (Gyòseisaiban hò ) of June 1890.
judges shall be independent in the exercise of their conscience and

shall be bound only by this Constitution and the laws”. But, of the
two aspects of independence, i.e. guarantee of the position in prin-
ciple and freedom from orders on how to dispense justice, the first
one was expressed in arts. 67 and 73 of the LCC. The judge was
appointed for life and could—against his will—not be transferred to
another post or court nor dispensed nor dismissed, nor could his
salary be reduced unless on the strength of a sentence or discipli-
nary punishment. There were exceptions, but as a rule the judge
led a secure professional life.
In order to prevent external influence upon the judicature or such
impressions the judge, being in active service, was not allowed to
get publicly involved in politics, to become a member of a political
party or association nor of a local, municipal or district assembly,
to hold any public office which involved a remuneration or had
earning money as its aim, to do any commercial business or any
other business forbidden under administrative orders, art. 72 LCC.
When the judge had been appointed (ninkan) a post was assigned
to him (hoshoku). The first post was judge (or public prosecutor) at a
local or district court. If there was no vacancy he became a super-
numerary judge ( yobi hanji ) and the Minister of Justice might employ
him in the Ministry or at a local or district court, or engage him
to replace a judge or prosecutor who was temporarily unable to
work. The employment was limited to a court of the first instance,
and not more than one supernumerary could be a member of the
three judges body of a division of the district court.
Judges of the high courts were selected from among persons who
had for at least five years been judges or public prosecutors, pro-
fessors of law at the Imperial University or lawyers (art. 69 LCC).
The same applied to judges of the Supreme Court, but the period
of previous occupation was ten years (art. 70 LCC).
Under art. 77 LCC a judge received a pension when he retired
because of age.22 But the LCC did not fix the retirement age; there
was no compulsory retirement on account of old age. In 1921 the
Law no. 101 of 17 May ruled that the President of the Supreme
22
‘Retirement’ meant leaving office (taishoku). The status ‘judge’ (hanji ) remained
since it had, by appointment, been bestowed for life.
the judge 787
Court and the Public Prosecutor General were to be pensioned off

at 65, the other judges and prosecutors at 63 years of age.
After three junior judges had accompanied T. Sasaki to Europe
in 1871 (see above) there was a rather long interval, during which
no journeys of judges to foreign countries were registered. At the
end of February 1882 the Councellor of State Hirobumi Itò departed
for Europe and the judge Taizò Miyoshi23 was a member of his
entourage. Miyoshi stayed in Europe until 1885 to study the judi-
cial practice and was sent again to Germany in 1888. The number
of judges sent abroad in order to investigate the legal systems increased
when the preparation of reforms was nearing completion and, espe-
cially, after the enactment of the new laws concerning the business
of the courts. They wanted to gain an understanding of the gist of
the laws which were modelled on foreign systems, and study the
implementation at the place of their origin. Later on, many trav-
ellers went to the USA. Judges were also ordered to partake in inter-
national conferences. To a rising degree judges became engaged in
committees for fact-finding, research, amendments and subjects like
that in the field of their profession. Moreover, judges were involved
in the administration of justice in territories which became subject
to Japanese control, and several of them were appointed to high
positions at courts in Harbin and Kirin (Manchoukuo).24
After World War II the Court Organization Law (Saibanshohò ) of
3 May 1947 improved the position of the judiciary, arts. 39–52.25
The very fact that the Supreme Court is vested with the rule-mak-
ing power by which it determines the rules of procedure and prac-
tice as well as of matters relating to lawyers, the internal discipline
of the courts and the administration of judicial affairs, and that the
public prosecutors are subject to the rule-making power of the
Supreme Court (for all this see Chapter VI of the Constitution of
1947), shows the strength of status of the highest judges which radi-
ates to the whole profession. Under art. 76 para 3 of the Constitution,
cited above, the judge is independent. In the chapter ‘The Courts
of Law’26 it was mentioned that the competence of the bureaucracy
23
From 1893 to 1896 President of the Supreme Court.
24
Shihòenkakushi (note 2) p. 476. The same went for public prosecutors too.
25
The position of the public prosecutor, formerly included in the LCC, was reg-
ulated by a separate law.
26
See p. 746 et seq.
or an electorate to promote a judge might have an impact on the

judge’s free forming of opinion. In this respect, a debatable point is
included in the Court Organization Law too. The legislator of 1890
thought it proper to secure the independence of the judge by way
of appointment for life in order to prevent him from fearing that
his position could be endangered. The new law introduced a demo-
cratic element in art. 79 of the Constitution: the judges of the Supreme
Court are appointed by the Cabinet,27 but the appointment is reviewed
by the people at the first general election of the House of Repre-
sentatives following the appointment, and again at the first such elec-
tion after a lapse of ten years and in the same manner thereafter.
Correspondingly, the judges of the lower courts are appointed by
the Cabinet from a list of persons nominated by the Supreme Court
for a term of ten years, with privilege of reappointment. The loss
of permanent security28 is made less severe by the fact that not the
executive but the Supreme Court is responsible for the staff policy.
27
The President (chief judge) is designated by the Cabinet and appointed by the
Emperor and also subject to the review.
28
Security for life may be regarded as encouraging a judge to become lazy or
causing his ignorance of the social situation and its changes (Hajime Kaneko,
Saibanhò (Law of Judicature), 1959, p. 173, but that seems unlikely nowadays as the
judges are exposed to public criticism to a greater extent than in days of old.
the public prosecutor 789
10.3 The Public Prosecutor
The office of the public prosecutor was instituted by the Minister of

Justice Shinpei Etò under the Office Regulations for the Ministry
of Justice (Shihòshò shokusei shòtei, afterwards renamed Shihòshò shokumu
teisei ) of 5 September 1872,1 a section of which were the Office
Regulations for Public Prosecutors. The office was a division of the
Ministry, and the duties of the prosecutor were defined as follows:
First of all the prosecutor was charged with preservation of the laws
and the rights of the people, the promotion of good and elimination
of vice, and with close watch over trials. He always had to be pre-
sent during civil proceedings, since the trial could not rightfully be
conducted by the judge alone; he had to make special efforts for the
protection of orphans and women litigants; and he had to make cer-
tain that all persons regardless of status enjoyed equal rights and fair
treatment before the law. And the prosecutor served as the channel
through which a dissatisfied litigant had to file his appeal with the
Prefectural Court. The prosecutor’s intervening role in civil cases, as
described here, was patterned after French law. Although the prose-
cutor had the right to demand a judgement, he was without the power
to render it; the power of judgement was vested exclusively in the
judge. With respect to criminal procedure, the duties of the prosecu-
tor commenced with the complaint of an offence and ended with the
verdict; he was not allowed to take preventive police action prior to
commission of an offence.2
The public prosecutors (kenji ) were classified in a system of six posi-
tions: Senior Prosecutor (daikenji ), Middle Prosecutor (chùkenji ), Junior
Prosecutor (shòkenji ) and their deputies (gon. . . .). They were officials
of the 4th (daikenji ) to 9th (gonshòkenji ) ranks. The place of work of
all the public prosecutors was within the prosecutors’ division of the
Ministry of Justice. They had under their supervision investigating
officers (kenbu, ranks 10 to 15) who were dispatched to each court
to perform the function of the prosecutor on the spot, except if a
prosecutor himself was sent there. Arresting officers (taibu) too were
on the staff of the public prosecutors’ office.
1
See above chapter ‘The Courts of Law’.
2
Ryòsuke Ishii, Meiji bunkashi, 2, Hòseihen (Cultural History of the Meiji Era, vol. 2:
Legal System), 1954, 229; translated by William J. Chambliss, Japanese Legislation
in the Meiji Era, 1958, 292. Chambliss takes ‘procurator’ for ‘prosecutor’.
Instituting the office of public prosecutors the Minister of Justice

had in mind to control the judicature, but soon he modified the
rules. On 17 June 1873 he instructed the prosecutors that they had
to attend a civil hearing only when they judged it necessary to give
serious consideration to the plaintiff ’s case. In order to form their
opinion they had to study the case, and meddling was always in the
air. A few months afterwards the prosecutor was relieved of the duty
to keep close watch over trials. His other duties were left intact.
The public prosecutors had to look after the tasks of the judicial
police (shihò keisatsu) as well,3 they employed the investigating and
arresting officers who did the practical business. But the prosecutor
was barred from taking any police action prior to the actual com-
mission of an offence; he was restricted to the investigation and arrest
of offenders whose unlawful acts had not been prevented by the
administrative police.
In June 1873 prosecutors’ branch offices were set up with every
prefectural court and half a year later the investigating officers (kenbu)
were abolished. The branch offices were dissolved and affiliated to
the criminal divisions of the courts. The dispatch of prosecutors to
the courts came to an end and in the following years a permanent
staff was employed there, step by step. Since there were still, in 1875,
districts without a court of law and therefore without a public pros-
ecutor, his duties were transferred to the local public officer by order
of 19 December 1875.
On 4 May 1875 the Supreme Court of Justice was founded and
on the same day some Office Regulations in the area of judicature
were amended. The position of assistant prosecutor (kenjiho) was cre-
ated. These assistant prosecutors were classified into four grades and
correspondingly into the 9th to 12th ranks. In June 1877 the class-
ification was changed; henceforth the rank or grade was designated
3
The duties of the judicial police, i.e. investigation and arrest, had first been
executed by the Penal Law Office (keihòkan), the Department of Criminal Affairs
(gyòbushò) and the Censorate (danjòdai ) within their area of responsibility, or by the
police forces of the domains, cf. chapter ‘The Courts of Law’. When, on 24 August
1871, the Censorate was dissolved and the Ministry of Justice established, the Office
Regulations of 5 September 1872 assigned the business of judicial policing to the
prosecutor. For the first time, a distinction was made between administrative and
judicial police. In regions where local officers were temporarily entrusted with judi-
cial police business, depending on the circumstances of the crime, prosecutors of
the Ministry were dispatched to guide the local officer (15 January 1875).
after the group to which the prosecutor belonged. The rank system
of that time comprised fifteen ranks, the highest being the first, the
lowest the fifteenth. The ranks were divided into three groups: the
holders of ranks one to three were chokunin, they were appointed by
the Emperor. The officials of ranks four to seven were sònin, like-
wise appointed by the Emperor but upon recommendation of the
responsible minister, and the ranks from eight down (hannin) were
appointed by authority of the minister or the head of another major
government office. Inside the ministry the status of the officials fol-
lowed these categories; within one category the order of appoint-
ment was decisive.4 The new titles were Chief Public Prosecutor
(kenjichò), Public Prosecutor (kenji ), Assistant Prosecutor (kenjiho). The
title kenjichò was renamed chokunin kenji on 27 December 1879. But
kenjichò lived on as the denomination of the position of head prose-
cutor with a lawcourt. Kenji was also used as the term referring to
a person who served as a prosecutor regardless of rank.5
In the course of equipping the courts with permanent public pros-
ecutors the Prosecutor’s Office of the Ministry of Justice was dis-
solved in May 1880; its business was transferred to the bureau of
criminal affairs, and when up to 1880 public prosecutors had been
installed in many areas they alone became responsible for the judi-
cial police activities which hitherto had been delegated to regional
officials. But in November 1881, with the exception of Tokyo pre-
fecture, the regional police inspectors were ordered to act as tem-
porary assistant prosecutors (rinji kenjiho).
At the end of 1883 the Ministry of Justice ruled that the presi-
dents of the courts of appeal and the courts of the first instance, as
well as the head prosecutors with these courts, had to assemble once
a year in the Ministry for one week at the most, the presidents on
1 April and the prosecutors on 1 October. The purpose was to
exchange experience and views, moreover to be informed on the
politics of the Ministry.
On 4 May 1886 the posts within the courts and prosecutors’ offices
were prescribed generally. As to the prosecutors there were probationary
4
But since it was difficult to regulate the order with officials of other ministries
or departments special seats were allocated to judges and prosecutors at state cer-
emonies.
5
E.g. Ki Watanabe, the secretary general of the Ministry of Justice, was appointed
‘chokunin kenji on 28–2–1880; then the ‘kenji ’ Watanabe was moved to the Supreme
Court on 9–4–1880 and made ‘kenjichò ’ there on 24–10–1881.
prosecutors (kenji shiho) with the courts of peace (chian saibansho), pros-
ecutors (kenji) and probationary prosecutors with the courts of the first
instance (shishin saibansho), chief prosecutors (kenjichò) and prosecutors
with the courts of appeal (kòsoin) and the Supreme Court (taishin’in).
When, on 1 November 1890, the Law for the Constitution of the
Courts (Saibansho kòseihò ) and the Enforcement Ordinance came into
force, the period of tests and unsteadiness ended. The Law regu-
lated the function and position of the public prosecutor.
A public prosecutors’ office was attached to every court.6 The
chiefs of the offices were called: Public Prosecutor General (kenji sòchò )
with the Supreme Court, Chief Public Prosecutor (kenjichò ) with the
courts of appeal, Head Public Prosecutor (kenjisei ) with the district
courts. If with a local court more than one public prosecutor were
attached one of them was Senior Public Prosecutor ( jòseki kenji ): The
collective name of the public prosecutors was and is ‘prosecuting
official’ (kensatsukan).
The prosecutor acted independently of the court. In criminal cases
he had the authority to institute charges and to take the steps nec-
essary for their prosecution, to further the proper application of the
law and to see that the sentence of the court was duly enforced. In
civil cases, he had the right, if he deemed it necessary, to demand
information about them, and was allowed to express his opinion. As
far as he was legally responsible to act as a representative of the
public interest it was his duty to supervise the judicial and admin-
istrative matters belonging to or concerning the courts, but he was
not permitted to interfere in the business of the judges or handle
any of their business, art. 81 of the Law for the Constitution of the
Courts (hereafter abbreviated LCC).
The status of the prosecutors was partly the same as that of the
judges, but they had to obey the orders of their superiors. They
were appointed by the Emperor or on his order. Accordingly, they
were chokunin or sònin (see above) and subdivided into several ranks
or grades within these categories. The details of the system were
changed from time to time. Initially there were two grades of chokunin
and six grades of sònin. Their annual salary was graded accordingly,
6
The whole of the public prosecutors was regarded as one body as in France
and Germany. This principle had been recognized already in 1885, see K. Hosokawa,
Nihon kindai hòseishi ( Japanese Modern Legal History), 1961, p. 102.
and subdivided into five brackets for the chokunin (from 5,000 ¥ down
to 3,000 ¥ ) and seventeen brackets for the sònin (from 2,800 ¥ down
to 400 ¥ ). This had been regulated by Imperial Order no. 158 of
2 August 1890, which also fixed the number of personnel at 481
public prosecutors and 15 supernumerary prosecutors.7 In the following
years the number fluctuated considerably, in most cases due to read-
justment of the administration (falling) or increase of courts and
branch courts as well as new laws or duties (rising).8 Shortly before
the outbreak of World War II there were 626 posts of public pros-
ecutors with the district and local courts only and 686 in total.9
A public prosecutor could not be dismissed unless he agreed or
was sentenced by a court of law or disciplined by a disciplinary
court, art. 80 LCC. But this law did not forbid his suspension or
transfer even at a lower pay. Like the judges the prosecuting officials
were entitled to a pension when they retired, arts. 79, 77 LCC.
Since art. 84 LCC ruled that the judicial police had to follow the
orders of the public prosecutors, and that the Ministry of Justice or
the prosecutors’ offices and the Ministry of the Interior or the local
authorities jointly should decide which members of the police force
were to act as judicial police, the prosecutors’ division of the Justice
Ministry laid down details about the business of the judicial police
and ruled that concerning the expenses, the number of officials and
the control of the position of the police officials, the officers of both
sides were obliged to hold a consultation beforehand (directive of 30
October 1897).
The influence of European law had not been limited to legisla-
tion; on the occasion of study travels to Europe and the USA the
judges and prosecutors gained knowledge of the conditions of life
and work with the judges abroad. They were under the impression
that the circumstances there were better than in Japan, especially
7
A supernumerary was a person who had been appointed public prosecutor but,
because of the lack of a vacancy, could not be installed in a post. The Minister of
Justice employed him either with the ministry or a local or district prosecutors’
office, and he could authorize him to deputize for a prosecutor or temporarily fill
a vacancy, arts. 62–64 LCC. About the system of appointment to an office (ninkan)
and assignment to a post (hoshoku) see chapter ‘The Judge’.
8
Especially when in the second half of the twenties the prosecution of offences
involving dangerous thoughts started and was intensified.
9
Hòsòkai ( Jurists’ Association) ed. Shihòenkakushi (A History of Justice), 1939,
p. 543. They had to deal with more than 408,000 incoming cases of investigation
and presumably many unfinished cases of former years.
the pay. But an early attempt to get their own situation improved
was not successful.
In 1900 a group of judges and prosecutors had been sent to Europe
and the USA. Back in Japan they learned that in January 1901 a Bill
was introduced in Parliament in which the increase of the pay for
judges and prosecutors was proposed. Under the leadership of three
prosecutors of the said group, namely the Head Public Prosecutor with
the Tokyo District Court, T. Nagamori, ditto with the Yokohama
District Court, K. Kòsaka, and the public prosecutor (simultaneously
adviser and judge of the Court of Administrative Litigation) K. Nakakòji,
judges, prosecutors and court secretaries in Tokyo and environs stood
up for an urgently needed increase of pay. They appealed to colleagues
for support and to members of Parliament for approval for the Bill.
But the diet rejected the Bill in March and in the wake of that deci-
sion several judicial officials handed in their resignation. Nagamori
and Nakakòji were dismissed at their request and Kòsaka was trans-
ferred as a prosecutor to the prosecutors’ office with the Osaka Court
of Appeal.10
Rather disturbing occurrences were in store for the prosecutors as
well as for the judges and administration officials. When Japan
declared war against China on 1 August 1894 a prize court was
established at Sasebo and two prosecutors were transferred to that
court.11 The war ended on 21 April 1895, and the prize court was
abolished on 28 September of the same year. Prize courts were set
up anew when the Japanese-Russian war broke out on 10 February
1904. Again two prosecutors were transferred there. Worse was that
all prosecutors as well as judges and higher officials had to subscribe
to government bonds. Lower officials (hannin) and probationary judi-
cial officers who had an annual salary of at least 500 ¥ were obliged
to save up to ten percent of it in the post office; the burden of this
group was open to deliberation in the individual case. In this way
they all had to contribute to the cost of the war. A few days later
the officials of the Ministry were ordered to save three percent of
their monthly pay in the post office. The war was concluded by the
Treaty of Portsmouth of 5 September 1905, promulgated on 16
October 1905. The treaty stated, among other matters, that Korea
10
11
Other than a prosecutor a judge could be transferred only on special condi-
tions, arts. 73, 74, 75 LCC, but in all probability it would have been unthinkable
that he refused to consent.
was a sphere of Japanese influence and that the southern part of

Sakhalin, Japanese: Karafuto was ceded to Japan. Subsequently, (i)
Korea became a protectorate of Japan. On 22 November 1905 Japan,
according to the treaty with Korea of 17 November 1905, set up a
supervisory authority (Tòkanfu) which had full power of control over
Korea’s foreign affairs.12 In 1907 the function of the Tòkanfu was
enlarged to legislature, the whole administration and personnel affairs.
Japanese Prosecutors and judges were appointed to serve with the
Tòkanfu at Seoul, and after the annexation of Korea by Japan in
August 1910 the number of those officials increased. Korea, formerly
named Kankoku in Japanese, was renamed Chòsen. The controlling
authority Tòkanfu (Office of the Resident-General) became Sòtokufu
(Office of the Governor General). (ii) On 1 April 1907 Japan opened
the Karafuto District Court at Vladimirofka (in 1911 renamed
Toyohara) and two local courts at Vladimirofka and Mauka (in 1911
renamed Maoka). Japanese prosecutors and judges were sent there
and most of them must have regarded the transfer as a kind of exile.
Far away from the desirable posts in the booming regions of the
main islands were the District Court and Local Court of Naha, the
capital of the Ryukyu islands (Okinawa). The courts were established
within the jurisdiction of the Nagasaki High Court on 25 December
1891 and commenced business on 1 June 1892.
In the twenties a special field of activity of the public prosecutors
gained importance: the investigation and prosecution of offences
involving dangerous thoughts (shisòhan), i.e. offences motivated by
political convictions. The Law for Maintenance of the Public Peace
(Chian ijihò) of 1925 enumerated punishable actions of this kind, e.g.
to organize or enter an association which aims at revolutionizing the
national polity (kokutai ), and a lot of other offences in connection
with forming groups or pursuing activities hostile to the state. The
authorities turned their attention especially to the labour movement
and socialist gatherings which were becoming popular as a result of
12
Wording of the treaty in Nihon shiryò shùsei (Compilation of Japanese Historical
Materials), ed. Heibonsha, 1956, p. 541. The Tòkanfu as the central controlling
authority was established in Seoul, and in several ports resident bureaus (rijichò) were
opened. The responsibility of a resident was similar to that of a consul, and under
the law no. 56 of 25 June 1906 the resident bureaus were empowered to act as
courts of law.
the October Revolution in Russia.13 In April 1921 a public prose-

cutor and a councillor of the Ministry of Justice were ordered to
travel to Europe to study, among other matters, postwar criminal
currents, especially the course of workers’ criminality. That did not
mean theft, bodily injury and the like but politically motivated peace-
disturbing action. When in 1925 the—originally very limited—uni-
versal suffrage was extended to males of 25 years of age and older,14
the Privy Council feared that the extension of the suffrage would
induce a deterioration of thought, and therefore required the gov-
ernment to make a law preventing such an outcome as a condition
of the Privy Council’s agreement to the Law for the Election of
Members of the House of Representatives.15 So, prior to the pro-
mulgation of the new Election Law on 5 May 1925 the ill-famed
Law for the Maintenance of the Public Peace was enacted on 22
April 192516 and a few days later declared applicable in the exter-
nal territories too.
With respect to the public prosecutors the result was that their
number rose from 513 with the district and local courts in 1925 to
13
Unrest among the workers had happened sporadically since the first years of
the Meiji era and organized movements had appeared every now and then since
the eighties. Strong efforts of S. Katayama, a leader of the working classes, and
others to promote the labour union movement in the last years of the 19th cen-
tury were blocked by the government and the legislature: Peace Police Law (Chian
keisatsu hò) of 10 March 1900.—The first Social Democratic Party was founded on
18 May 1901, registered with the police according to art. 1 of the Peace Police
Law and at once prohibited. Afterwards, comparable foundations too were sup-
pressed immediately.
14
Amendment to the Law for the Election of members of the House of
Representatives (Shùgiin giin senkyo hò). Under previous laws the right to vote had
depended on the amount of direct national tax paid by the male citizen of 25 years
and more of age. The amount had been reduced from time to time. In 1890 it
had been at least 15 ¥—then only 1.1 per cent of the population could go to the
polls, in 1920 it was 3 ¥—5.49 per cent could vote. When the law of 1925 did
away with the requirement of taxpaying the percentage rose to 19.44. M. Hasegawa,
Shòwa kenpòshi (History of the Postwar Constitution), 1961, p. 26. Women were not
entitled to vote.
15
Under the Regulations Governing the Organization of the Privy Council
(Sùmitsuin kansei oyobi jimu kitei ) of 1888 in the version of that time the Privy Council,
art. 56 of the Constitution, would give advice to the Emperor on draft Bills relat-
ing to the Constitution. Since the Election Law affected the Constitution (art. 35),
and the laws needed the approval of the Emperor (art. 6), the Privy Council had
a decisive influence.
16
As early as November 1923 an Imperial message concerning the arousal of
the national spirit (Kokumin seishin sakkò ni kansuru chokusho) had been issued. The mes-
sage was aimed at socialist and communist movements. Members of the Japanese
Communist Party had been indicted in June 1923 for the first time.
626 in 1938.17 That was due less to an increasing number of crim-

inal cases in court than to the growth of investigations.18 The State
Police or Secret Service (kenpeitai )19 were vigorously busy supervising
the people and their thinking. Especially under the militaristic gov-
ernment in the early years of the Shòwa era (from 1926) they hunted
for dissidents and provided the public prosecutors with a lot of mate-
rial to be examined. Repeatedly prosecutors were convoked to delib-
erations on measures to deal with the issue or sent to crucial places
in order to inquire into the situation.20 Such places were mainly in
Manchuria and Shanghai where anti-Japanese sentiments had grown
alarming. 21 The Japanese supremacy also in the judicature of
Manchukuo was emphasized by the appointment of Japanese pub-
lic prosecutors (and judges) to high posts with the prosecutors’ offices
at Harbin, Kirin and other towns.
The new Constitution, in force since 3 May 1947, does not make
reference to public prosecutors, except art. 77 para 2: “Public
Prosecutors shall be subject to the rule-making power of the Supreme
Court”. Together with the Constitution laws on the judicial system
were drafted and discussed with the General Headquarters of the
Allied Powers (GHQ ). Committees of the Cabinet and the Ministry
of Justice prepared the drafts of the Court Organization Law
(Saibanshohò), the Law for the Public Prosecutors’ Office (Kensatsuchòhò),
the Law of the People’s Examination of the Supreme Court Judges
(Saikò saibansho saibankan kokumin shinsa hò), and the Law for Impeachment
of Judges (Saibankan dangai hò). In January 1947 the Cabinet agreed
17
Shihò enkakushi (note 9) at 551.
18
Shihò enkakushi (note 9) at 551, 552.
19
Originally the military police, founded in 1881. This force gradually extended
its activity to administrative and judicial police duties and was also operating in the
territories annexed or controlled by the Japanese.
20
Moreover, public prosecutors became members of many conferences, commit-
tees and research groups concerning other matters having an impact on perform-
ing their duties in practice.
21
The actual control of Japan over the ‘free and independent’, in reality: pup-
pet, State Manchukuo, founded on 1 March 1932, gave rise to resistance move-
ments. In Shanghai intense hostility to Japan had developed because of Japan’s
power politics in northern China and deepened owing to the Shanghai incident of
1932: after an assault on Japanese men there had been fights between Chinese and
reinforced Japanese troops and the Japanese had occupied a part of Shanghai. After
the outbreak of the Japanese-Chinese war in 1937 and once parts of China had
been occupied by Japanese troops the investigation into anti-Japanese activities was
extended to the newly controlled areas.
to the drafts which were sanctioned by the GHQ and the Privy
Council22 in March. The diet passed the Public Prosecutors’ Office
Bill on 16 April 1947.23 The Law came into force at the same time
as the Constitution and the Court Organization Law. The separa-
tion of the Public Prosecutors’ Offices from the courts required a
special law for the organization of the offices, their staff and busi-
ness. The offices were no longer an appendage of the courts but a
particular institution on the level of the courts: Supreme P(ublic)
P(rosecutors’) O(ffice) (Saikò kensatsuchò, High PPO (Kòtò kensatsuchò),
District PPO (Chihò kensatsuchò)24 and Local PPO (Ku kensatsuchò). The
chiefs of the offices are called Public Prosecutor General (kenjisòchò)
and Assistant Prosecutor General ( jichò kenji ) of the supreme office,
Superintendent Public Prosecutor (kenjichò ) of the high offices, District
PP (kenjisei ) and Head PP ( jòseki kenji ) of the local offices if two or
more public prosecutors are working there. The common member
of an office is simply called Public Prosecutor (kenji ). A second type
of prosecutors are the Assistant Prosecutors ( fukukenji ); they may func-
tion on the local level only. The official collective name of all pub-
lic prosecutors is kensatsukan. Generally, they all are under the guidance
and supervision of the Minister of Justice, but his orders regarding
the handling of a single case may be given to the Public Prosecutor
General only. In principle, the prosecutors have the benefit of guar-
antee of their status. The age limit is fixed at 65 for the Public
Prosecutor General and 63 for all other prosecutors, art. 22 of the
Law for the Public Prosecutors’ Office.
Two committees were instituted:
(i) Prosecutors’ Screening Committee (Kensatsukan tekikaku shinsakai ),
art. 23, composed of members of the diet, public prosecutors,
judges, lawyers and scientists, eleven persons in all; six of them
coming from the diet. The committee screens all prosecutors
every three years to weed out the incompetent. The screening
was established in lieu of an election of the prosecutors as sug-
gested by a legal officer of the occupation forces.25
22
The Privy Council performed its functions until the new Constitution became
operative on 3 May 1947.
23
In the course of the discussions the drafts had been subject to some amend-
ments.
24
Level of the District- and Family Courts.
25
A. Taylor von Mehren, Law in Japan—The Legal Order in a Changing
Society, (1963), p. 135.
(ii) Under the Inquest of Prosecution Law (Kensatsu shinsakai hò) of 12

July 1948, a prosecutor’s decision not to prosecute can be reviewed
by a committee composed of ordinary citizens picked by lot. The
committee may recommend prosecution. Such a recommenda-
tion is not binding but the system provides a check on arbitrary
exercise of the prosecuting authority.26
26
A. Taylor von Mehren, loc. cit.
10.4 The Lawyer1
I. Prior to the Meiji restoration no system of lawyers2 comparable

to that of today existed in Japan. Civil and criminal cases went to
the authorities where judicial officials heard and examined them.
The parties had to appear in person; representatives versed in taking
procedural action were not permitted. In the Tokugawa era (1603–
1867) helpers, assistants or companions were admitted only if the
party had fallen ill or could not appear for other reasons.3 They
were not allowed to plead but just had to state the grounds for the
absence of the party. Near the end of the Tokugawa era sham agents
(kujishi ) emerged, but that did not touch the principle of the ban on
representation in court.4 Giving professional legal advice was forbidden.
A government order (tasshi ) of 1869 concerning rules for the adju-
dication of litigation involving different prefectures and/or domains
dealt with some general items of civil procedure too, and upheld the
traditional regulation that the parties themselves had to plead in
1
This word is used here in the headline as a collective name for persons who
give legal advice to clients on legal matters and/or represent them in court, com-
prising attorneys, advocates, solicitors, barristers, counsel, councillors. As there were
three Japanese terms for legal advisers after 1868 these types should be translated
differently—just in order to distinguish: daigen/nin/ = advocate, bengoshi = lawyer
(both solicitor and barrister), bengonin = position of the defence counsel in a crim-
inal case.
2
A valuable source of information about the history of the Japanese Bar is Nihon
bengoshi enkakushi (History of the Japanese Lawyers), 1959, edited by the Federation
of Japanese Lawyers’ Associations (Nihon bengoshi rengòkai ), Secretary General Torao
Ogiyama. Besides this, the Shihò enkakushi (A History of Justice), 1939, compiled by
the Ministry of Justice and edited by the Hòsòkai ( Jurists’ Association) has been con-
sulted. Reference should be made to T. Hattori/R. Rabinowitz, The Legal
Profession in Japan. Its Historical Development and Present State, in: A.T. von
Mehren, Law in Japan—The Legal Order in a Changing Society, 1963, 111 et
seq. J.O. Haley, Authority Without Power—Law and Japanese Paradox, 1991, 100
et seq.
3
Such service was done by the head of the house or village or a person from
the five family neighbourhood.
4
The appearance of sham agents was due to the fact that the people shied away
from legal proceedings because there were many procedural rules or the party was
afraid of being present in court. Therefore, there were persons willing, for pay-
ment, to appear in court instead of the party, pretending to be a relative or to
have other personal connections with them. When people living in the country were
involved in a lawsuit or crime and had been summoned to appear in an Edo court
they used to stay at an inn, the lodgers of which were solely or mostly litigants or
witnesses from out of town (kujiyado), and the landlord of the inn developed into a
legal adviser and sham agent.
the lawyer 801
court. The ban on representation was slightly moderated: a relative

or any other person could represent the party if he or she was ill,
old or disabled and, after investigation, unavoidable circumstances
were acknowledged. The clause “any other person” was a first step
towards legal assistance as a profession. Defence by counsel in a
criminal case, however, was not tolerated.
II. When Shinpei Etò became Minister of Justice the Office Regu-
lations for the Ministry of Justice of 5 September 18725 introduced
legal agents to be installed in every district of the country: certifiers
(shòshonin),6 writers (daishonin),7 and advocates (daigennin).8 Under art.
43 of the Office Regulations the latter had, as representatives of per-
sons who were unable to make an allegation in court, to submit the
facts of the case and avoid wrong statements therein. The engage-
ment of an advocate depended on the free will of the party.
The district authorities had to care for the availability of such
agents, several of whom had some knowledge and experience in
juridical business—but that was not a precondition. They were enti-
tled to a fee from their client.
While the Office Regulations dealt with the representation in court
by those officially authorized agents, the Ordinance Concerning
Agents, (dainin kisoku) of 18 June 1873 was about other representa-
tives. A person could appoint a proxy generally for all his business
(sòridainin) or for special affairs (buridainin). The commission could
include the representation in court. That was in line with the fact
that the authorized legal agents did not have the monopoly of rep-
resentation in court.
Pleading and writing for another might be done by one and the
same person and the only precondition of the post of district legal
adviser was that he was not blind, deaf or idle and that he had
come of age (21 years). His status and outfit was not higher or bet-
ter than that of the party. He was seated on the same level as the
party and addressed by his name only. The officials of the court
5
6
They witnessed contracts for sale or lease of plots or fields or houses etc. as
well as gifts of possessions inter vivos.
7
They wrote any document for another, especially in judicial or official matters,
mostly claims.
8
Daigen/nin/ = /person/pleading for another.
and the authorities looked down on the agents and called many of
them ‘sanbyaku daigen’ which literally means ‘300 mon advocate’, i.e.
an advocate who works for a fee of 300 mon, mon being the coin of
the lowest value (penny), a cheap advocate of inferior quality or
slashed fees, a pettifogger. Apparently, the manners of the advocates
in court were not always decent. It was thought necessary to insert
in the Regulations for Courtroom Order (saibansho torishimari kisoku)
of 20 May 1874 articles concerning the behaviour of advocates.
Whenever an advocate was reprimanded by the judge because of
lack of respect he was no longer allowed to represent his client in
the pending lawsuit. If he swore at the judge he was banned from
appearing in court in his capacity of advocate for up to three months.
As a consequence of the opening of representation in court the
activity of advocates began to develop into a profession. But there
was no prescribed or officially organized legal education of advo-
cates. In April 1874 a former high official of the Ministry of Justice,
Nakamichi Shimamoto,9 established an Institute for Legal Studies
(Hòritsu kenkyùjo) which may be regarded as a predecessor of the pre-
sent law office. Therein he undertook judicial research, began teach-
ing practical business to writers and advocates and propagated personal
integrity, extension of the rights of the people and the security of
the welfare of the strong and the weak equally. In this spirit he
founded legal offices in Osaka and Tokyo and named them
Hokushùsha,10 where he educated future advocates. Nearly half the
candidates who passed the first advocates’ exam under the Ordinance
Concerning Advocates of 1876 had been instructed at the Hokushùsha.
Since the activities of the advocates were almost unrestricted there
grew foul deeds: many advocates instigated lawsuits, bought up rights,
tried to delay court proceedings, had no regard to manners and dig-
nity, undertook advising for a low fee, e.g. 300 mon11 or less than
the price of two litres of unpolished rice.
The Ministry of Justice issued the Ordinance Concerning Advocates
(Daigennin kisoku) on 22 February 1876 with the intention of gaining
9
Ogiyama (note 2) calls him Tadamichi Shimamoto, everywhere else his first
name is written Nakamichi, e.g. A History of Justice (note 2) at 19, 23; Daijinmei
jiten (Great Dictionary of Persons’ Names), vol. 3 at 309 (1953); The Japan Biographical
Encyclopedia & Who’s Who (1958) at 1397.
10
Literally ‘House of the North Continent’. That refers to the northern part of
the Buddhist mythical mountain where Bishamon, one of the gods of luck, resides.
11
See above.
the lawyer 803
some control and improving their standing. Under the ordinance a

person who wanted to be an advocate had to submit an application
to the relevant district authority via the headman of the ward or
village, naming the court at which he wanted to be accredited and
asking to be examined. If he passed the examination the district
official recommended his admission to the Minister of Justice who
issued the certificate. Then the advocate was registered with the
Ministry and the respective court.
The examination appertained to (i) a summary of the existing gov-
ernment decrees and proclamations and their origination, (ii) an out-
line of penal law, (iii) the main points of the court proceedings which
were in force, (iv) the conduct and the curriculum vitae of the appli-
cant. The district official arranged the examination at his discretion
but he had to demand a paper about one of the three subjects (i)
to (iii), and if he had a question on it cause the applicant to answer
in writing.12 The first advocates’ examinations were held on 1 April
1876. Nation-wide thirty-four candidates were successful; they all had
already been busy as advocates and now wanted to be admitted
under the new regulations.
Examination and registration meant that other persons were not
authorized to represent a party in court.13 With the consent of both
parties the advocate might plead in another court than that at which
he was registered; this did not apply to the second instance of the
case at issue. In some prefectures the advocate could be registered
with the district court and the high court simultaneously. Representing
in the Supreme Court was open to every advocate.
The ordinance included articles about causes of non-admittance14
and about disciplinary measures against advocates who violated par-
ticular canons of decency.15
12
Art. 3 of the Rules Governing the Procedure under the Ordinance Concerning
Advocates of 22 February 1876.—From 1879 persons who had completed a course
of study at Tokyo University were excused from the exam.
13
The Justice Minister’s edict of introduction. But if an advocate was not avail-
able and the party itself was, because of illness or accident, unable to appear in
court a near relative (father, son, brother or uncle, nephew) might represent it. If
there was no near relative a suitable representative might appear producing a let-
ter of attorney written out by the headman of the ward or village.
14
E.g. former convicts (at least one year of hard labour), bankrupts, officials,
art. 3.
15
Art. 14, a code of honour. Under art. 11 the advocate might (of course) set
out the rules and regulations to the judge but not argue the right or wrong of them
nor the original purport of the legislation.
From 1876 to 1879 the ordinance and the procedural rules were
amended fourteen times. Worth mentioning is a ministerial order of
11 December 1877 which introduced ‘advocates attached to the
Ministry of Justice’ ( fuzoku daigennin). They represented the ministry
in any court. Principally, they got a monthly salary but occasionally
could be engaged by private persons or represented poor people
gratis. They had their office within the ministry and were subject to
the Ordinance Concerning Advocates.
Gradually, the advocates enjoyed a better reputation and began
to play an important role in society, especially when in 1877 Tòru
Hoshi16 returned from England where he was the first Japanese to
become a barrister. He was attached to the Ministry of Justice at a
monthly salary of 100 ¥ and had many private clients. He and two
other attached advocates17 were renowned for their professionalism
and highly esteemed. The rise of the advocates’ prestige was due
also to the special education at the university. But the disrespect of
the courts for them remained as before.
On 13 May 1880 the /Amended/ Ordinance Concerning Advocates
(/Kaisei/daigennin kisoku) was enacted. The ministry had realized that
there were weak points as to the control over the advocates and the
examination held by the district authorities—the consequence of this
was that, depending on the district, the exams were of different stan-
dard. The amendment ruled
– that the control was executed by the public prosecutors,
– that the examination questions were drawn up by the ministry
and sent to the public prosecutors who had to hold the exam
accordingly; prescribed subjects of the exam were civil law, penal
law, laws of procedure, laws concerning judicature,
– that an advocates’ association had to be founded in each circuit
which was obliged to control the keeping of the rules of conduct;
16
1850–1901. Member of the Liberal Party, 1890 member of the House of
Representatives, 1892 President of it, 1896 ambassador to the USA, 1900 Com-
munications Minister, chairman of the Tokyo Municipal Assembly. Made many
enemies due to his authoritative manner. Murdered on 21 June 1901.
17
Tanetarò Megata, 1843–1926. Study at Harvard University. Official in sev-
eral ministries. Financial management during the wars with China and Russia.
Member of the House of Peers and of the Privy Council. One of the founders of
Senshù College.—Nagatane Sòma, 1850–1924. Study at Columbia University. Advocate,
then judge for a short time. Founder of Senshù College. President of the Yokohama
Specie Bank.
the lawyer 805
the regulations issued by the association were to be submitted to

and examined by the public prosecutor in advance. To join with
someone in order to form a private partnership and do business under
the name of it outside the association was punishable.
– that any advocate who had been admitted by the Ministry of
Justice might plead in the Supreme Court and any other court.
Although the new ordinance promised to remedy possible offences
by advocates the attitude of the courts towards them did not change.
The members of staff of the courts treated them inconsiderately.
When the advocate was summoned he learned only the day of the
hearing, not the hour. Therefore he used to appear when the court-
room opened and often had to wait till late afternoon, and when
his case had been heard he was not allowed to leave without per-
mission. Sometimes it happened that the advocate was summoned
no sooner than on the date of the hearing. Entering the court he
had to show his name card. Not all such irritations were really seri-
ous but the advocates were very sensitive to any disrespect since they
endeavoured to gain high repute for their profession. The Tokyo
Advocates’ Association’s appeal to the President of the District Court
was refused in most of the items.
When the Tokyo Advocates’ Association was founded on 16 May
1880 animosities among the advocates came to light. The ordinary
advocates used to give the advocates who were attached to the min-
istry a dirty look. The above mentioned Tòru Hoshi had arranged
the inaugural meeting, and 92 advocates from the Tokyo prefecture
attended. They disliked Hoshi to such a degree that many of them
set up a movement for his exclusion because they thought that the
foundation of one association of both ordinary and attached advo-
cates would damage the reputation of the first. After a fierce debate
Hoshi was excluded, and the others drafted articles of an associa-
tion with the exception of the advocates attached to the Ministry of
Justice. Submitted to the public prosecutor this official refused to
sanction the exclusion of Hoshi and rejected the draft. Thereupon
the advocates enacted the articles which Hoshi had originally drafted,
and Hoshi became one of the two vice-presidents of the associa-
tion.18 The association had 120 members. Next, advocates’ associa-
tions were founded at Osaka, Sendai, Niigata, and Kyoto.
18
For the full text of the 41 articles see Ogiyama (ed.), note 2, at 32–36.
III. When, in the first years of the seventies the Japanese jurists
gained a deeper insight into foreign law, some of them proposed the
introduction of a defence counsel in criminal court cases. At that
time the standard of the advocates was regarded as rather low and
therefore the idea could not yet be realized.
In 1875 a trial was held in a murder case. In this instance the
court appointed an ‘official for the defence’ (bengokan). The defen-
dant was not the ‘client’ of the official since it was not he who had
engaged him. The official for the defence had to plead about the
facts only, he was not allowed to give his opinion on points of law.
From 1876 an ordinary advocate could be engaged as counsel of
the defendant, first by foreigners only, then, in the same year, by
Japanese defendants too. But for the time being it was at the dis-
cretion of the Minister of Justice whether the application for coun-
sel was granted or refused. From 1877 all applications were granted,
and yet defence by counsel required an application and was limited
to facts.
The Code of Criminal Instruction (Chizaihò) of 17 July, enforced
on 1 January 1882, was the first law under which the defence coun-
sel was recognized and his presence at the trial declared necessary
otherwise the sentence imposed on the defendant would not be
valid.19
The defence counsel was selected by the defendant from the reg-
istered advocates. With the consent of the court a person who was
not an advocate could be selected, and if the defendant in case of
felony did not name a counsel the court appointed an ‘official coun-
sel’ (kansen bengonin).
In the course of the liberal-democratic movement and the activi-
ties of the Liberal Party ( Jiyùtò) in the early eighties the counsel
became busy in handling cases of ‘dangerous thought’, i.e. offences
motivated by political beliefs. The authorities prosecuted persons who
spread liberal ideas and demanded rights of the people and a demo-
cratic order. Advocates acted as counsel for the defence and began
to stand up for such reforms themselves. Prominent advocates joined
19
Not all of the courts had advocates at hand and therefore the Council of State
decreed that for the time being the judgements of a court where advocates were
not available would be valid, Ryòsuke Ishii, Meiji bunkashi, hòseihen (Cultural History
of the Meiji Era, [vol. 2] Legal System), 1954, 444; translated by W.J. Chambliss,
Japanese Legislation in the Meiji Era, 1958, 520.
the lawyer 807
the Liberal Party, founded in 1881, or the Constitutional Progressive

Party (Rikkenkaishintò), and owing to their functioning in court and
politics the reputation of their profession increased.
IV. The Law for the Constitution of the Courts (Saibansho kòsei hò)
of 1890 coined a new term for the members of the profession: lawyer
(bengoshi),20 up to now the denomination of a jurist who has been
officially licensed to represent a party or defendant in court or before
authorities and give professional legal advice to clients. As, in 1890,
there were no lawyers the Ministry of Justice decreed on 18 October
1890 that provisionally the advocates (daigennin) should act as lawyers
in court. Rinshò Mitsukuri, then Vice-Minister of Justice, who was
well versed in western, especially French, law had drafted a lawyers’
law and sent it to the diet on 25 November 1890.21 The draft con-
sisted of 48 articles, some of which should be summarized here.
– Precondition for doing business as a lawyer was the registration
with a district court or a high court or the Supreme Court.22 A
fee was to be paid for the registration: Supreme Court 500 ¥,
high court 300 ¥, district court 100 ¥. A lawyer could be regis-
tered with a high court after five years of work in a district court,
with the Supreme Court after five years of work in a high court.
– Having been registered the lawyer was allowed to practise within
the circuit of the court of registration and the lower courts there.
– Requirements for qualification: lawyers’ examination, practical train-
ing for eighteen months at a lawyers’ office and a court, mini-
mum age: 25, no criminal record regarding certain felonies, no
bankruptcy or insolvency, ban on other occupation for payment
except member of a legislative body, professor and other enu-
merated activities.
– Foundation of Bar Associations. The lawyer was bound to announce
that he had been registered with the relevant Bar Association and
deposit a surety of 200 ¥ in case of registration with the Supreme
Court, 150 ¥ ditto with a high court and 100 ¥ ditto with a dis-
trict court. The Bar Associations had to submit a list of members
to the public prosecutor with the Supreme Court or the high court.
20
Arts. 111, 114.
21
The first session of the diet was opened on 29 November 1890.
22
The registration included admission to the lower courts on the same circuit;
the registration with the Supreme Court was valid for all Japanese lawcourts.
When the draft became known the jurists all over the country
expressed their opposition mainly to the following items: Classification
of the lawyers depending on the level of the court of registration,
local delimitation of activities, excessive fees for registration and high
sureties. In the diet the bill was in danger of being refused, there-
fore the government withdrew it on 9 January 1891. After having
made some amendments the government introduced the bill anew.
During the deliberations the diet was dissolved, and on 1 December
1892 the bill was introduced for the third time. A committee dealt
with it and deleted the clause concerning the local delimitation. The
surety was changed into the authorization of the Bar Association to
bind the members, depending on the local situation, to keep reserves
up to 300 ¥; but such a clause was not included in the law. The diet
passed the bill on 25 December 1892, the Lawyers Law (Bengoshihò) was
promulgated on 3 March 1893 and came into force on 1 May 1893.
The law consisted of five chapters: (1) qualification and profession
of the lawyer, arts. 1–6, (2) lawyers’ register, arts. 7–11, (3) rights
and duties of the lawyer, arts. 12–17, (4) Bar Associations, arts.
18–30, (5) disciplinary punishment, arts. 31–34; 34 articles and 4
additional provisions in all.
Art. 1 defined the profession: “The lawyer exercises his function,
commissioned by a party or ordered by a court, in an ordinary court
as provided by law. Under a special law he may exercise his func-
tion in a special court”. Attention should be paid to the point that
the lawyer’s function was exercised “in court” (see below). The pre-
condition of becoming a lawyer was that the applicant was a Japanese
man of full age and capacity who had passed the prescribed exam-
ination; excused from the exam were persons qualified for a judge
or a public prosecutor as well as LLDs or those who had completed
a course of law at Tokyo University or the former ministerial law
school and judicial officers on probation. Legal obstacles for becom-
ing a lawyer were conviction because of certain crimes, suspension
of civil rights, or pecuniary decline. The lawyer was not allowed to
do other business as described in the law.
Under art. 7 the lawyer could start business as soon as he had
been registered with a district court and entered the Bar Association.23
The procedure of registration was regulated by the Ordinance
23
Under art. 12 there was a qualifying period of two years before he might plead
the lawyer 809
Concerning the Registration in the List of Lawyers’ Names (Bengoshi

meibo tòroku kisoku) of 10 April 1893. The registration fee was set at
20 ¥, art. 10 of the law.
The activity of the lawyer was limited in some respects: he might
not represent the adversary of his party or handle a case which he
had dealt with as a judge, public prosecutor or referee. He was for-
bidden to buy the contentious claim. If he was not willing to attend
to a case he had to inform the principal at once, otherwise he was
liable for damages.
Bar Associations were to be founded in every circuit of a district
court; they were controlled by the head public prosecutor at the dis-
trict court who was empowered to be present at the meetings or
demand reports on them. The Bar Association had to enact regu-
lations concerning the election of the president, the vice-president
and the directors, their functions, the general meeting, the board
meeting and the procedure, keeping up discipline of the lawyers,
remuneration24 and other provisions necessary to carry out the duties
of the Bar Association. The regulations required the approval of the
Minister of Justice.
Apparently in order to maintain the objectivity of the view of the
Bar Associations and prevent them from interfering in affairs of
State, the subjects of the meetings were limited under art. 28 of the
law to (1) matters which were determined by a law, an ordinance
or the regulations of the Bar Association, (2) enquiries by the Minister
of Justice or a lawcourt, (3) proposals to the Minister of Justice or
a lawcourt in the interest of the judicial system or the Bar.
Disciplinary punishments ranged from reprimand or fine or exclu-
sion from the profession for one year at the most, to deletion from
the register.
The additional provisions arranged the transition from the daigen-
nin system to the Bar. The existent advocates could, within sixty days
in the Supreme Court. This did not apply to persons who had worked as a judge
or public prosecutor for at least three years. The qualifying period was generally
abolished by a law of 23 February 1900.
24
The remuneration was a fee for the representation of a litigant (shakin) or a
charge for services other than litigation (tesùryò), clearly defined in arts. 38 and 39
of the Regulations of the Niigata Bar Association (Ogiyama, note 2, at 73). While
the tesùryò was freely stipulated in the contract between the lawyer and his client,
there were upper limits of the shakin expressed as a percentage of the amount of
the claim. The percentage differed regionally. Since 1933 the remuneration of the
lawyer is called hòshù.
from the enforcement of the Lawyers Law, apply for registration in

the lawyers’ register; if they did so they became lawyers without hav-
ing to pass the examination. Anyhow, they were allowed to carry
on a pending case until the judgement. Since art. 1 of the law con-
ferred only the monopoly of representing a litigant upon the lawyers
other legal business could be done by advocates as well. The advo-
cates continued working as legal advisers, and newcomers could take
up this profession. There were no regulations about the practice.
Under art. 38 para 2 of the Lawyers Law the Ordinance Concerning
Advocates of 1880 was repealed. The expression sanbyaku daigen (see
above) was used until this profession was abolished in 1933.
Soon after the enforcement of the Lawyers Law the Bar Associations
were established. Under a decree of the Ministry of Justice of 10
April 1893 the old advocates’ associations were commissioned to
manage the procedure of the foundations.
Because of the limitations under art. 28 of the law (see above) the
scope of action of the Bar Associations was rather narrow. Moreover,
there were regional discrepancies as to the position on significant
judicial issues, and the mere fact that important matters could be
resolved locally caused displeasure. In order to promote nationwide
a friendly communication among the lawyers and a rational devel-
opment of the administration of justice, as well as to edit ‘News’
(rokuji, later named Hòsò kòron = ‘The Jurists’ Opinion’) as the mouth-
piece, interested lawyers assembled in Tokyo in 1897 and organized
the ‘Japanese Lawyers’ Society’ (Nihon bengoshi kyòkai ). The members
were determined not to mince their words.
In the field of legal reforms the Society was most successful with
regard to the Law Concerning Surface Rights (Chiyòken ni kansuru
hòritsu) of 26 March 1900 under which the legal position of the lessees
was strengthened.25 The Society had proposed this piece of legisla-
ture and propagated it everywhere. Besides, the Society supported
improvements of the conditions within the prisons.
Many a lawyer made a name for himself and the profession dur-
ing sensational trials or litigations, e.g. in the case of copper poi-
soning by the copper mine at Ashio.
At Ashio near Nikkò the industrialist Ichibei Furukawa run a copper
mine from which poisonous minerals flowed into the Watarase river
25
See p. 222.
the lawyer 811
and damaged the fields there when heavy rainfalls led to a rise of the
water. A great number of men and villages were endangered. The
people formed a movement demanding remedy. The movement grew
rebellious, a trial for calling upon people to riot, for violation of the
Peace Police Law [Chian keisatsu hò] and resistance against officials fol-
lowed in 1902. The case was heard in several instances and revealed
the greatest social problem in the period of the growth of the Japanese
capitalism. Supporters of the cause of the victims of the poisoning were
politicians [First Shòzò Tanaka, a member of the House of Repre-
sentatives and noted fighter for justness], socialists, liberal bourgeois,
adherents of the ‘agriculture first’ principle, theologians, women, stu-
dents. The case gave rise also to discussions about strict liability under
civil law.
Connected with this trial were two other court cases. The aforemen-
tioned Shòzò Tanaka was accused of insulting officials because he had
yawned in the courtroom. More than seventy lawyers stood up for his
defence but he was found guilty in three instances. The report on this
in the ‘News’ of the Japanese Lawyers’ Society was penned in such a
way that the editor was indicted for an offence against the Press Law
and at last, in the third instance, fined 20 ¥.
In the Òtsu case (see chapter ‘The Courts of Law’), which was
famous for the attempt of politicians to influence the judicature, the
three counsels for the defence argued that the article of the Penal
Code on offences against the Tennò did not apply to offences against
a foreign head of State. Contrary to the opinion of the Public
Prosecutor General the Supreme Court followed the counsel.26
However, the lawyers reckoned that the public prosecutors did not
treat the counsel for the defence properly. The public prosecutors
were inclined not to inform the counsel, although he had been
selected and announced to them, of the date of the trial, explaining
that the investigation had not yet reached the state in which defence
was necessary; then they went to court and achieved an early judge-
ment so that defence was not possible. The Tokyo Bar Association
succeeded in persuading the public prosecutors to discontinue this
practice.
26
For the judgement of 21 May 1891 and the pleadings see Ogiyama (note 2)
at 79–85. A peculiarity of Japanese judgements should be pointed out: regardless
of the fact that the abovementioned legal question which article was to be applied
was the crucial subject and prosecutor and counsel had discussed it profoundly the
court, in the judgement, said nothing about the evaluation and the reason why it
based the sentence on the article ruling attempted murder of a common person.
When Emperor Meiji died in 1912 and a historic era ended, the
Bar appraised the situation of the lawyers and queried the duties of
the judges and public prosecutors. The subjects were professional
responsibility, treatment of the accused, true and just arguments,
accord between law and morality, and the like. The query was meant
to call attention to the future way of action.
The Taishò era (1912–1926) was a period of political and social
unrest in which the lawyers intensified their professional and public
engagement. They became active in the ‘Constitutional Movement’
(kensei yògo undò, abbr. goken undò ) and took part in founding the ‘Circle
of Constitutional Activists’ (Kensei sakushin kai ), initiated by Tokyo
journalists and others on 13 December 1912.27 In line with the polit-
ical ideas of Yukio Ozaki of the ‘Society of Political Friends’ (Seiyùkai )
and Tsuyoshi Inukai of the ‘Nationalist Party’ (Kokumintò) they opposed
the policy of the military faction and the bureaucracy to reform the
army and navy.
After World War I lawyers from Japan, China, the Philippines
and Thailand set up an ‘International Bar Association’ (Kokusai ben-
goshi kyòkai). American lawyers from Shanghai too attended the first
general assembly at Beijing in 1921.
One year later a quarrel sprang up among the members of the
Tokyo Bar Association. For years the chair had been monopolized
by old stagers. A number of the lawyers disliked that and stood up
for a reform. After vehement discussions Masahiko Inui of the reform
group was elected president in 1922. He had been a lawyer for only
seven years. The old stagers regarded his election with distaste and
founded the ‘Tokyo Lawyers Society’ (Tokyo bengoshi kyòkai), a pri-
vate group. Inui was elected president of the Tokyo Bar Association
again in 1932, 1936 and 1941.
Violent disputes arose when a bill relating to an amendment of
the Lawyers Law was introduced in February 1923. The reason was
the increasing number of members of some Bar Associations and
thereby a greater difficulty in executing the duties of the Association.
Consequently, it was proposed to divide a Bar Association when it
became too large. The lawyers feared that the influence of the Bar
Associations on the members as well as in the case of representing
27
Ogiyama (note 2) 107. Seemingly, the circle was small and had no obvious
influence.
the lawyer 813
the interests of the Bar to the judicature, administration and par-

liament would diminish if there were more than one Bar Association
in a district.
On 17 April 1923 the diet passed the bill, and the following clauses
were added to the Lawyers Law:
– if the number of lawyers in a district is so low that the founda-
tion of a Bar Association would be inexpedient the lawyers may,
by permission of the Minister of Justice, joining with the lawyers
of another district establish a Bar Association,
– when the number of members of a Bar Association increases to
300 and more a separate Bar Association may be founded by per-
mission of the Minister of Justice if at least 100 members agree.
In consequence, Yoshimichi Hara28 who had been president in 1919
and 384 other members left the Tokyo Bar Association and set up
the ‘First Tokyo Bar Association’ (Daiichi Tòkyò bengoshikai ).29 Resulting
from the different attitude of the two Bar Associations their mutual
relations were but formal. In March 1926 another Bar Association
was established in Tokyo, the ‘Second Tokyo Bar Association’ (Daini
Tòkyò bengoshikai ). More than 50 members came from the First Tokyo
Bar Association and 150 from the Tokyo Bar Association; now there
were three Bar Associations in Tokyo.
The ‘News’ of the Japanese Lawyers’ Society continued to com-
ment on new laws and major events in the judicial sphere. They
criticized the fact that certain crimes were regarded as patriotic
deeds.30 They praised the Jury Law of 1924. The ‘News’ message
28
1867–1944. Study of law. 1890–1893 official of the Ministry of Agriculture
and Commerce. Lawyer from 1893. 1927–1929 Minister of Justice. Then he was
a Privy Councillor (1931–1939), Vice-President and, from 1940, President of the
Privy Council. As a lawyer he was, in 1923, an old stager and presumably most
of the founders of the new Bar Association were of the same kind.
29
Actually, the Tokyo Bar Association was the ‘first’. The name of the new Bar
Association as the first may result from the fact that this was the first of a con-
ceivable series of parallel associations under the law of 17 April 1923.
30
The cause was a judgement against the gendarmerie captain Masahiko Amakasu
who, making use of the confusion after the earthquake of 1923, had murdered two
socialists/anarchists. Amakasu was sentenced to ten years in prison and released
after three years. The court-martial (martial law had been declared in the areas
affected by the earthquake) said that Amakasu had feared that, in the confusion,
the hostility of the socialists to the State could be worsened to rebellious actions
instigated by the anarchists he had killed. Therefore he had intended, off his own
bat so to say, to avert evil actions from the State.
of greeting the Jury Law welcomed the expected influence of the

will of the people on the judicature out of satisfaction at the new
democratic feature, but mainly out of delight at the imagined check
to the discretion of the ‘bureaucratic’ judges. The editors could not
know that the law was not accepted by the people and proved to
be rather ineffective in the end.
In May 1925 the ‘National Bar’ (Teikoku bengoshikai ) was founded,
like the ‘Japanese Lawyers’ Society’ a private organization which laid
stress on the virtues of the jurists and endeavoured to enforce them.
Its nationalistic attitude appeared in its organ ‘Justice’ (Seigi ). The
National Bar published a letter of thanks when Japan withdrew from
the League of Nations in 1933 and the Japanese representative had
made clear to the assembly of the League Japan’s standpoint con-
cerning the Manchurian affair.
From 1928 to 1933 Japan went through a politically exciting
period: tightening of the Law for Maintenance of the Public Peace,
first general election thanks to the introduction of universal suffrage,
large-scale persecution of communists beginning on 15 March 1928
and five operations following, expansion of the special political police
(tokkò keisatsu), impending world economic crisis, murder of politicians
or attempts on their lives, the Manchurian incident, attempted mil-
itary and rightist’s’ coups d’état, Shanghai incident, end of the party
cabinets, start of military dictatorship, withdrawal from the League
of Nations, and Law for Rice Control.
In general, the troubles had no impact on the Bar. But a num-
ber of lawyers had founded the ‘Group of Liberal Jurists’ ( Jiyùhòsòdan)
as early as in 1921. They committed themselves to the interests of
workers and peasants and to the cause of communists. When their
unity decayed several members, in 1928, set up the ‘Society for the
Relief of the Victims of the Liberation Campaign’ (Kaihò undò giseisha
kyùen kai ), the central figure of which was the lawyer Tatsuji Fuse.31
The Society stood for the discontinuation of the persecution of com-
munists. Within the Group of Liberal Jurists some members formed
31
1889–1953. At first, he wanted to become a philosopher and was influenced
by the Christian theologian Kanzò Uchimura, then studied law and after having
worked as a public prosecutor became a lawyer in Tokyo from 1903 to 1932. He
was a famous counsel for the defence in many cases of great political significance
and one of the founders of the Group of Liberal Jurists. He was excluded from
the Bar in 1932 and again admitted in 1945.
the lawyer 815
a left wing and founded the ‘Lawyers’ Group for the Relief of the
Victims32 of the Liberation Campaign’ (Kaihò undò giseisha kyùen ben-
goshidan) on 1 June 1931; they organized the defence in trials against
communists. This activity was regarded as a violation of the pur-
pose of the Law for Maintenance of the Public Peace, and a lot of
lawyers were arrested, Fuse33 among them. The Group merging with
the ‘Lawyers’ Group for a Nationwide Pan-Agricultural Convention’
(Zennò zenkoku kaigi bengoshidan) established the ‘Japanese Lawyers’
Group for the Cause of Labourers and Peasants’ (Nihon rònò ben-
goshidan) in January 1933.
V. Since the enforcement of the Lawyers Law of 1893 there were,

again and again, discussions on amendments. The Japanese Lawyers’
Society proposed, in 1903, to move the supervision of the lawyers
from the Minister of Justice to the Bar Associations which should
get the status of a body corporate. The Tokyo Bar Association took
up this proposal in 1911 and founded a committee in order to inquire
into the following subjects:
(i) the Bar Association as a body corporate,
(ii) supervision over the Bar Association by the Minister of Justice,
(iii) disciplinary proceedings and punishment as the responsibility of
the Bar Association,
(iv) explanation of the lawyer’s professional rights; measures against
doing business by non-lawyers.
The committee drafted a bill which was submitted to the diet on 5
March 1912. The House of Representatives, in spite of objections
from the government, passed the bill, slightly changed, but the House
of Peers could not decide because the session ended on 26 March.
As late as May 1922 the Ministry of Justice resumed the prepa-
ration of a new Lawyers Law and consulted the Bar Associations
about points like these: whether the contents of the profession should
be defined and the lawyer be sworn to them and the rules, whether
it should be possible to strike off the name of the lawyer from the
register in case of his inability due to his corporal or mental weakness,
32
Sc. the labourers and peasants. ‘Victims’ = the persecuted fighters for liberation.
33
In 1939 he was sentenced to two years of penal servitude, but released after
one year.
whether the area of business should be limited regionally, and whether

a contingent fee should be authorized.
The draft of the new law provided for the recognition of the so-
called pettifogging advocates (sanbyaku daigen). The Bar Associations
and the Japanese Lawyers’ Society opposed this provision, arguing
that admittedly there were some more or less honest persons among
the sanbyaku daigen but most of them corrupted the moral code. The
people should be protected from them. They would not keep books
nor files on the cases nor have an understanding of how to handle
them, therefore their business could not be checked or controlled
and their social conditions remained unknown.
The government withdrew the draft, and in accordance with the
wish of the Bar the matter of dispute was settled by a new text of
the prospective art. 1 of the amendments:
The function of the lawyer is to conduct legal proceedings on request
of a concerned party or other interested person or on assignment by
a government office or to execute other legal business in general.
Accordingly, out-of-court handling of legal matters was also the priv-
ilege of a registered lawyer.
Finally, the new Lawyers Law (Bengoshihò ) was promulgated on 8
April 1933 and with it the Law Concerning the Restriction of Prac-
tising Law (Hòritsu jimu toriatsukai no torishimari ni kansuru hòritsu). The
latter law consisted of four articles. Art. 1 detailed the monopoly of
the lawyer:
A person not being a lawyer must not, with the aim to make money
in view, professionally act as an adviser, representative, arbitrator or
peacemaker with regard to a lawsuit between others or a non-litiga-
tion case of others nor act as an agent in such matters. But being
attendant in a rightful business is not limited.
Under art. 2 it was forbidden for anyone to acquire professionally
the claim of another and execute it by means of a lawsuit or other
methods. Violation of the rules was punishable.
The Lawyers Law of 1933 introduced a new examination proce-
dure (see section ‘Legal Education’). Other main clauses concerned
subjects touched by the Ministry of Justice when it had consulted
the Bar Associations in 1922 (see above). The contents of the pro-
fession were not defined but could be gathered from art. 1 of each
of the two laws, and no oath was formulated. As before, it was not
possible to cross out the name of the lawyer from the register if he
the lawyer 817
became infirm. The lawyer could plead in any court but had to
enter one Bar Association. The Bar Association was a body corpo-
rate under the supervision of the Minister of Justice. Rules con-
cerning the fee of the lawyer were left to the regulations of the Bar
Association. The most remarkable point of the new law was the dele-
tion of the clause that the lawyer must be a man. Thereupon, female
lawyers appeared in rapidly increasing numbers.
VI. When, towards the end of the twenties, general irritation with
the democratic approach to the leadership of the country and dis-
content with the unsteady state of affairs developed, it was chiefly
the military that accused the party system of causing trouble. The
murder of Prime Minister Tsuyoshi Inukai by young officers and
cadets of the navy and army on 15 May 1932 meant the end of
the party cabinets, and from that time military chiefs determined
the policy even though they did not at once assume direct respon-
sibility. Japanese troops in Manchuria (the Kwantung army) had
affected the policy already, in September 1931, when they had
engaged in battle with Chinese troops after the explosion of a bomb
on the rails of the South Manchurian Railway near Mukden. This
event began a constant state of war or warlike actions between Japan
and China which lasted until 1945.
The foreign policies (Manchurian incident, withdrawal from the
League of Nations, international isolation, escalation of the war with
China, striving for a new order of East Asia, getting involved in
World War II) and the domestic affairs (end of the party cabinets,
persecution of opposition and suspected leftists, Prof. Minobe’s ‘The
emperor-as-an-organ theory’, coup d’état of army officers on 26
February 1936, the road to the Pacific War) induced the lawyers’
societies and Bar Associations to render opinions. The views differed
according to the political standpoint; the most rightist society was
the ultra-chauvinistic ‘National Bar’. Others pronounced in favour
of democracy and liberalism, but they had to act with caution since,
in times of intensified persecution of opponents, democratic and lib-
eral ideas were regarded as being in danger of becoming the hotbed
of communist ideas.34 Finally, in a belligerent, patriotic spirit and
being forced to maintain brotherhood in the state of war the Japanese
34
Ministry of Justice declaration of 1938, Ogiyama (note 2) at 157.
Lawyers’ Society, in spite of its dislike of the National Bar, proposed

the amalgamation of these two societies in order to extend and
strengthen the power and authority of the Bar and cooperate in the
reform of the judicial system as a branch of the ‘New Structure’
(shintaisei ).35 The supporters of such a reform set up the ‘Nationwide
Lawyers’ Federation for the New Structure’ (Shintaisei zenkoku bengoshi
renmei) which, guided by the Japanese Lawyers’ Society, called upon
the lawyers for unity and even proposed the amalgamation of the
three Bar Associations. They were just as unsuccessful as the ‘Fede-
ration of the Non-Government Jurists for Cooperation Considering
the Current Situation’ (Zaiya hòsò jikyoku kyòryoku renmei) of 1941 and
the ‘Patriotic Lawyers’ Society of Great Japan’ (Dai Nihon bengoshi
hòkoku kai ) of 1944. Actually those groups were not relevant to the
profession, their ambition being to promote patriotism.
A thorough reform of the judicial system had been contemplated
already by the then Minister of Justice Naoshi Ohara in 1934.
Seeking consultation with the lawyers he put 28 questions to several
Bar Associations. They concerned (selected and briefly) simplification
and speeding up of the procedure in civil and criminal cases, orga-
nization of the judicial police, obligation to be represented in civil
procedure, limitation of the number of defence counsels for one
defendant, training of articled clercs, system of custody until trial,
and the penal system.36 The opinion of the lawyers revealed in many
items that they mainly looked after their business interests and the
rights of the clients, asserting that against simplification and accel-
eration. On the same line was based a resolution of a nationwide
great convention of lawyers held on the initiative of the Japanese
Lawyers’ Society on 1 November 1936 after the Minister of Justice
Reisaburò Hayashi had determined upon fundamental principles of
a judicial reform at a top-level conference on the subject. The lawyers
35
This programme was introduced by the second cabinet of Prime Minister
Fujimaro Konoe on 1 August 1940 as part of the project to establish a new orga-
nization of East Asia under the leadership of Japan. The ‘New Structure’ was meant
to realize a totalitarian State and followed the Nazi system of ‘one nation one
party’. The New Structure was supposed to include the whole administration, jus-
tice, economy and the institutions of public life.
36
Ogiyama (note 2) 183–189. Some of the subjects were understood as merely
technical. E.g. one Bar Association answered, to the question of how to simplify
the protocol of the hearing, that the secretary should use a fountain pen and west-
ern paper (instead of writing brush and Indian ink on Japanese paper).
the lawyer 819
demanded that the appointment of a judge or public prosecutor

should depend on at least ten years experience as a practising lawyer,
that measures would be taken in order to eliminate the suppression
of human rights (among others, to separate the courts from the pub-
lic prosecutors’ offices, and to codify the legal rights of prisoners on
demand), and that the existing mediation system be repealed in toto.37
Moreover, they wanted to abolish the institution of the citizen’s talk-
ing over matters of personal distress and worry at the police station
and asking for advice there; instead, the courts or Bar Associations
should establish social offices.38
Of course, the lawyers gave their opinion about the laws which
were enacted out of consideration for the state of war. The business
of the lawyers was affected chiefly by the National General Mobilization
Law (Kokka sòdòin hò) of 1 April 1938, in force from 5 May 1938,39
and the Law for the Maintenance of National Defence (Kokubò hoan
hò) of 7 March 1941, in force from 10 May 1941. The first one
established a totalitarian administration and left many details to
Imperial decrees and administrative orders. The Japanese Lawyers’
Society regarded the law as unconstitutional, since the administra-
tion could intrude on rights safeguarded in law and the function of
the diet was severely restricted. In the following months and years
decrees and orders and amendments, especially concerning trade and
prices, were issued in such quantity that judges, public prosecutors
and lawyers, particularly in remote districts where due to the decline
of communication facilities in times of war the news arrived late,
37
Argument: The conciliation provided for by law in cases of lease, tenancy,
commercial matters, and debts had become independent from the arrangement in
the course of litigation. Conciliation should be integrated into the due process of
law, and the proper means were a compromise made before a court or the judge-
ment of an arbitration tribunal. Evidently the lawyers hoped to participate in the
settlement to a greater extent if the mediation were performed in litigation, par-
ticularly as there was a large number of mediation cases (Ogiyama, note 2, at
260–261). But the wish of the lawyers was not fulfilled; on the contrary, new laws
regulating mediation were enacted with regard to personal matters (1939), damage
due to mining (1939), and after World War II the Civil Mediation Law (Minji chòtei
hò) set up general rules.
38
The lawyers argued that there were 60,000 such instances a year and that in
view of the mass those consultations should be channelled judicially.
39
Klaus Schlichtmann; Shidehara Kijùrò: Staatsmann und Pazifist, eine politi-
sche Biographie (Kijùrò Shidehara, Statesman and Pacifist, A Political Biography),
1997, p. 427, gives 24 March 1938 as the date of enforcement which differs from
the text in Compendium of Laws (Roppò zensho), Iwanami shoten 1942.
could hardly understand which regulation was in force at the rele-

vant moment. The latter law intended to prevent state defence secrets
from being revealed to a foreign country. The concept of secret was
rather broad, the penalties very severe; the authority of the public
prosecutor was widely extended, the right of defence hampered, and
direct re-appeal was the only remedy against the sentence. Now, the
‘National Bar’ criticized the limited chance of defending fairly and
the exclusion of appeal.
The legislative tendency to strengthen the position of the prose-
cutor, to frustrate the defence, and to shorten the way through the
courts was accompanied by continued patriotic appeals and the insis-
tence on loyalist unity of all subjects. Moreover, the rigorous con-
trol of the economy resulting from the state of war restricted the
activity of the lawyers who, like any citizen, felt obligated to sup-
port the nationalist sentiment.40 Many of them did social work, tak-
ing an active part in giving free legal advice to families of soldiers
at the front. The Bar Associations had set up information bureaus
since about 1939. Advice was also given about actions of the mili-
tary police in cases which were judicially unreviewable.
VII. The Meiji Constitution of 1889 did not mention the lawyer.
The postwar Constitution of 3 November 1946, in force from 3 May
1947, regulates in art. 77 that matters relating to lawyers (bengoshi )41
are subject to the rule-making power of the Supreme Court, and
arts. 34 and 37 speak of the defence counsel42 (bengonin).
Following the new Constitution many laws had to be altered. First,
the ‘Temporary Preparatory Committee for a Conference on the
Reform of the Judicial System’ (Rinji shihòseido kaisei kyògi junbikai ) was
set up in the spring of 1946. Only a small number of lawyers were
members of the committee, which discussed mainly the laws con-
cerning the courts and the public prosecutors. The committee did
not present a draft of a new Lawyers Law. The practising lawyers
stimulated further endeavours, and the Ministry of Justice established
the ‘Preparatory Committee for the Reform of the Lawyers Law
40
As late as 1944 the ‘Patriotic Lawyers’ Association of Great Japan’ was founded.
Organizing many events and making use of mass media it propagated jingoism.
41
‘Attorneys’ in American.
42
Usually but not necessarily a lawyer, art. 31 of the Code of Criminal Procedure.
the lawyer 821
(Bengoshihò kaisei junbi i’inkai ) on 20 September 1946, in which the

Bar was adequately represented. One month later the three Bar
Associations of Tokyo agreed on a joint report and submitted it to
the committee. The report was influenced by former demands of the
Bar. The crucial points were:
– any public law-like character of the lawyer to be abolished,
– quality and learning of the lawyers to be promoted on the basis
of conception of the unitary jurists43 which the Bar had called for
earlier,
– rigorous requirements as to the qualification to be instituted,
– self-administration of the Bar to be introduced to some extent.
The report of the committee, members of which were also officials
of the Ministry of Justice and judges, favoured the independence and
self-administration of the Bar, moved the registration of the lawyers
from the Ministry to the Japanese Federation of Bar Associations,
refused guidance and supervision by the Ministry or a court or oth-
ers, proposed rigid requirements as to the qualification,44 forbade the
opening of a lawyer’s office in the district where the lawyer had
worked as a judge or a public prosecutor, and stated that the lawyer
was not only qualified for a patent lawyer and a tax consultant under
the Patent Lawyers Law (Benrishihò) of 1921 and the Tax Practitioners
Law (Zeimu dairishihò) of 1942 but was, of course, allowed to prac-
tise as such.
Since all this was contrary to the traditional notion there were
authorities offering opposition to the report. The Ministry of Commerce
and Industry and that of Finance were against the clause that the
lawyers might ipso facto do business as patent lawyers and tax con-
sultants. The Ministry of Justice and the courts disagreed with the
43
Hòsò ichigen. See chapter ‘Legal Education’.
44
Though by different committees, the Court Organization Law, the Law for
the Prosecutor’s Office and the Lawyers Law were prepared concurrently and the
results of the discussions were mutually known. So, one committee could take the
findings of the other into account. The Court Organization Law was expected to
introduce ‘exceptionally appointed judges’ (art. 45) = persons who had not gone
through the ordinary education system but had dealt with legal matters for many
years and had knowledge and experience might be appointed judge of a summary
court as well as assistant prosecutor (arts. 3 and 16 para 2 of the Public Prosecutor’s
Office Law). The Bar was of the opinion that they should not be qualified as
lawyers.
local limitation of the lawyers’ activity and with the non-recognition

of the competence of exceptionally appointed judges and assistant
prosecutors, cf. note 44. The courts further argued that under art.
77 of the Constitution the matters relating to the lawyers were to
be regulated by ordinance of the Supreme Court.
In view of the objections the Ministry of Justice strove for a com-
promise, and many deliberations took place with the Bar Associa-
tions, the legal office of the cabinet, members of the diet and its
legal section, the General Headquarters of the occupying forces45 and
the Supreme Court. Compromises were made, and the House of
Representatives passed the bill on 10 May 1949. The House of
Councillors proposed some changes and sent the corresponding res-
olution of 27 May 1949 to the House of Representatives where it
arrived on 29 May, and on the next day the session ended. So, the
House was not able to discuss the matter in full. It passed the bill
a second time by the majority, under art. 59 para 2 of the Constitution,
on 30 May 1949 shortly before midnight. The Lawyers Law went
into force on 1 September 1949.
Its principal points are independence and self-administration, estab-
lishment of the Japanese Federated Lawyers’ Association (Nihon ben-
goshi rengò kai, abbreviated Nichibenren),46 responsibility of the Federation
for the registration of the lawyers, separation from the organs of the
State, disciplinary powers of the Bar, and the authority to assess the
qualification of the lawyer. The Bar Associations and the Japanese
Federated Lawyers’ Association are bodies corporate.
45
Among other things the GHQ asked for the admission of foreign lawyers.
Japan yielded to this and art. 7 of the new law ruled that, with the consent of the
Supreme Court, a foreign lawyer who was fairly proficient in Japanese law could
practise like a Japanese lawyer; if he lacked adequate knowledge of Japanese law
he might deal with matters involving foreigners or concerning foreign law. When
the occupation had ended art. 7 was repealed in 1955. As to the further develop-
ment of the regulations concerning foreign lawyers see Thoralf Bölicke, Die
Liberalisierung der Zulassung für ausländische Rechtsanwälte in Japan (Admission
of Foreign Lawyers in Japan Liberalized), in Zeitschrift für Japanisches Recht ( Journal
of Japanese Law), vol. 5/1998, 92–113.
46
Under art. 47 of the Lawyers Law the lawyers and the Bar Associations are
members ipso facto. The old law of 1933 had ruled (art. 52) that the Bar Associations,
in order to attend to joint matters, could set up a federation with the permission
of the Minister of Justice. The only members were the Bar Associations. That fed-
eration was founded on 31 October 1939 and named Japanese Federation of Bar
Associations (Nihon bengoshikai rengòkai ); it was dissolved when the Lawyers Law of
1949 came into force.
notes on the staff of the ministry of justice 823
10.5 Notes on the Staff of the Ministry of Justice
The earliest organization of the Meiji government was the ‘three

offices (sanshoku) system’. It was formed of the Supreme Head (sòsai ),
Senior Councillors (gijò) and Junior Councillors (sanyo). This system
was created by the Imperial Restoration Order (Òsei fukko no daigòrei )
of 3 January 1868.1 All affairs of state were to be administered in
these three offices. The Supreme Head, ten senior councillors and
five junior councillors were appointed by name, and the group of
junior councillors was completed by three persons each from the
domains Owari, Echizen, Aki, Tosa and Satsuma. The said mem-
bers of the Government were Imperial princes, court nobles and
samurai of the principal domains who had proved their loyalty to the
Throne during the transition from the bakufu to the new regime. The
number of senior and junior councillors increased considerably within
the short period of the three offices system (less than six months);
their total number was thirty senior and more than hundred junior
councillors.2 The business of the branches of the administration was
shared out between the senior and junior councillors.3 On 10 February
1868 the senior councillors Nobuatsu Hase (or Nagatani) and Morihisa
Hosokawa4 were appointed directors of the Penal Law Administrative
Section, and four junior councillors had positions of responsibility
for the work in that section.5 When, but two weeks later, the Penal
Law Administrative Section was dissolved and the Penal Law
Administrative Secretariat (keihòjimukyoku) established there were eight
posts: director (kami ), vice-director (suke), assistant director (gonsuke),
judicial officer (hanji ), assistant judicial officer (gonhanji), secretary (shoki ),
1
Ryòsuke Ishii, Meiji bunkashi, 2, Hòseihen (Cultural History of the Meiji Era, vol. 2:
Legal System), 1954, p. 60, translated by William J. Chambliss, Japanese Legislation
in the Meiji Era, 1958, p. 714.
2
K. Tokinoya (ed.), Nihon kindaishi jiten (Dictionary of Japan’s Modern History),
1958, pp. 673–674.
3
Their main duty was the discussion on all affairs of state in the Great Council
of State (dajòkan), i.e. the three offices as a whole. Their function with the branches
of the administration was an additional duty.
4
Both had become senior councillors shortly after the issuance of the Imperial
Restoration Order.
5
The sections (ka, operating from 10 February to 25 February 1868), the fol-
lowing eight secretariats (kyoku, operating from 25 February to 11 June 1868) and
the offices (kan, 11 June 1868–15 August 1869) may be looked upon as early fore-
runners of the ministries (shò). Nihon kindaishi jiten (note 2) pp. 674–677.
scrivener (hissei ), and clerk (kyokushò). The director was Tadafusa

Konoe, a court noble. The former directors Hase and Hosokawa
became vice-directors; the junior councillor Kamehisa Gojò was assis-
tant director, and attached were three (finally four) junior council-
lors as judicial officers.
From 11 June 1868 until 22 December 1885 the government was
organized in the form of the Great Council of State system (dajòkan
sei ), which was changed twice and assumed three types. First, 1868–
1869, the ‘Charter on the Form of Government’ (Seitaisho) of 11 June
1868 said that the entire authority of the state rested with the Great
Council of State (dajòkan). That did not mean that the dajòkan ceased
to be the whole of the sections, secretariats or offices but should be
an institution of a higher grade, i.e. above them; it was still simply
a general designation used in reference to the newly named offices.6
The Charter decided on separation of the legislative, administra-
tive and judicial powers. The secretariats (kyoku) were renamed ‘offices’
(kan). The legislative organ (giseikan), consisting of senior and junior
councillors, was an office like the other seven offices. This reorga-
nization was executed at once. During the short period of this type
(14 months) the Penal Law Office had three successive directors
(chikanji ).7 The subordinates were vice-directors ( fukuchikanji ), judicial
officers and their substitutes (hankanji, gonhankanji ), secretaries (shoki ),
scriveners (hissei ), and inferior officials (shibu). The heads of the three
sections of the Penal Law Office8 were the chishiji = ‘having knowl-
edge of the affairs of the section’; their staff consisted of judicial
officers (hanshiji ) and assistants (gonhanshiji ).
On 15 August 1869 the second type of the new system was estab-
lished. It followed the ancient form of government in order to
strengthen the central authority. The Great Council of State (dajòkan)
became a structured body with the Minister of the Right (udaijin)9
6
Ishii/Chambliss (note 1) at 86 and 111 respectively.
7
Literally ‘Having knowledge of the affairs of the office’. From ancient times,
the notion was that control and supervision were based on the knowledge of facts
and events. The rule of the emperor was called shiroshimesu = to know; R. Ishii,
Nihon hòseishi gaisetsu (Outline of Japanese Legal History), 1960, p. 28. The word
chiji (knowing the matters or affairs) became the term or title relating to a person
in a leading position. Today, chiji is the highest official of a prefecture.
8
9
Sanetomi Sanjò who was also the Prime Minister (dajòdaijin) of the dajòkan type
III, 1871–1885.
at the top and several First Advisers of State (dainagon) and State
Councillors (sangi ) as the highest officials. According to the ancient
order the Office of Shintò Worship ( jingikan) stood above the Great
Council of State with respect to the rank but not to the political
business. The former offices were renamed departments or ministries
(shò ), the chiefs of which had the title kyò (minister). In the Penal
Law Office, now called Department of Criminal Affairs (gyòbushò ),
there were several posts for officials of different ranks who had judi-
cial responsibility.
The reader should keep in mind that the judicial officers were not
judges in the modern sense but administration officers who handled
legal matters of the department and, in addition, had a limited juris-
diction in criminal cases.10
The third type of the dajòkan-system was instituted in September
1871. The Great Council of State divided into three chambers:
Central Chamber (seiin), Left Chamber (sa’in) and Right Chamber
(u’in). The administrative departments (shò ) which we now call min-
istries belonged to the Right Chamber. The Ministry of Justice (shi-
hòshò) was founded on 24 August 1871. When Shinpei Etò had been
appointed Minister of Justice and courts of law organized the judges
and public prosecutors belonged, as before, to the personnel of the
Ministry11 but from now on had their offices at the courts.
Worth mentioning are three particular posts which had neither
predecessors nor successors.
(i) Councillor (sanjikan). Councillors were introduced in each ministry
by regulations governing the organization of the ministries of 26
February 1886. Their duty was, on instruction of the minister, to
reflect on administrative matters and present ideas and proposals as
to that. There were full-time (sennin) councillors and persons who
did that as a secondary occupation.12 The councillors were sònin =
appointed by the Emperor upon recommendation of the minister;
10
11
This state of affairs lasted until 1947.
12
For example, Binzò Kumano, after having studied at the Justice Ministry School
and in France, entered the Ministry of Justice and became councillor in 1886 and
a member of the Civil Code Compilation Committee (Minpò sòan hensan i’in). In
1890 he was appointed judge of the Supreme Court. But on 7 October 1892 and
12 April 1893 he, in his position as councillor to the Ministry of Justice, was men-
tioned among the members of two other committees (Dai jinmei jiten/Large Dictionary
of Persons’ Names/, 1953, p. 413. Shihò enkakushi/A History of Justice/, ed. by the
Hòsòkai/Jurists’ Association/, 1939, pp. 143, 149).
one of them in each ministry got the rank of chokunin = appointed

of the Emperor’s own volition, in April 1897. The councillors and
the administrators (shokikan)13 were not to exceed nine persons of the
staff of each ministry. In the Ministry of Justice the number of coun-
cillors fluctuated. At first, they were five; the highest number was
eight from 1920 to 1922.14 They were often made members of com-
mittees or sent abroad in order to study foreign legal institutions.
By Imperial ordinance of 20 December 1924 the post of councillors
was abolished. [Today there is a great number of councillors in sev-
eral government offices, regulated partly by law, partly by ordinance.
An example of the description of the duty of a councillor is found
in art. 14-2 para 2 of the Cabinet Law (Naikakuhò): “The councillor
to the Cabinet will, on instructions, take charge of the adjustment
of matters of the Cabinet meetings and other general affairs of the
Cabinet”.]
(ii) Communication official (sanyokan). The communication official
had to foster the contact of the ministry with the diet. This post of
political significance was introduced in each ministry after the first
party cabinet had been formed by Shigenobu Òkuma in June 1898
and installed in a high position: the communication official was
chokunin and positioned next to the vice-minister. Yùzaburò Kuratomi,
who was the head of the civil and criminal affairs division in his
main function, acted as the communication official with the Ministry
of Justice.15 The second cabinet Aritomo Yamagata abolished the
post in April 1900.
Near the end of the Taishò era (1912–1926) the party cabinet
had established itself as the sole form of government until 1932. On
12 August 1924 communication officials were installed anew and a
parliamentary vice-minister (seimujikan) was added to the staff of each
ministry in order to strengthen the connection between administra-
tion and diet. When in 1940/41 the political parties dissolved and
thereby facilitated the founding of a one party system by which the
national unity should be demonstrated, the posts of parliamentary
vice-minister and communication official became unnecessary and
13
Officials of sònin rank who arrange the work of other officials and employees
in an office (here: ministry) so that the business functions well.
14
Shihò enkakushi, note 12, pp. 539–541.
15
Shihò enkakushi (note 12), pp. 570, 571.—Kuratomi was a jurist and served in
various very high positions.
were abolished. There had been twelve communication officials with

the Ministry of Justice between 1924 and 1940.16
(iii) The parliamentary under-secretary (sanseikan) was the ephemeral
forerunner of the communication official of the period 1924–1940.
The posts of sanseikan and his deputy were created by Imperial order
no. 207 of 5 October 1914. The senior was chokunin-official and
ranked directly below the minister. His business was the same as
that of the later parliamentary vice-minister and the communication
official; he was, of course, selected from among the members of a
political party. The parliamentary under-secretary of the Ministry of
Justice (D. Tagawa) was appointed on 2 July 1915; he held office
until 9 October 1916.17 Afterwards there was no other parliamen-
tary under-secretary, and the posts were abolished by Imperial order
no. 143 of 15 May 1920.
The present-day law subdivides the public service into the regu-
lar government service (ippanshoku) and the special government ser-
vice (tokubetsushoku). Among the special government officials under art.
2 para 2 no. 7 of the National Public Service Law (Kokka kòmuin hò)
of 11 October 1947 a parliamentary vice-minister is provided for;
his duties are the same as those of the former sanseikan or sanyokan.
16
Shihò enkakushi (note 12), pp. 568–569.
17
His deputy was W. Seki who served the same term. Shihò enkakushi (note 12),
pp. 564, 568.
INDEX
Accident Compensation Law 600 Anglo-American administrative law

Act on Trade Unions 527, 531, 644
533 Anglo-American conception 751
adjudicating officers 657, 659, 661 Anglo-American law 25, 28, 185, 630
Administrative Adjudication Law n. 10, 679, 706–707, 710
627, 632, 632 n. 18, Anglo-American legal system 710
633–638, 641–642 Anglo-American rule 677
Administrative Appeal Law 635 Anglo-American usage 778
Administrative Case Litigation Law Anti-Monopoly Act 491–492, 497,
628, 641–643, 647–648 528–529, 532–537
Administrative Complaint Law Anti-Monopoly Act as of 2000 537
647–648 Anti-trust Law 523, 526, 536–537,
Administrative Court 136 n. 129, 539
630, 633–638, 640–641 appeal 14, 109, 133, 182, 230,
administrative disposition 628, 629 273–274, 287, 336, 407, 426–428,
n. 7, 630–631, 633, 635, 638–639, 432–434, 439–450, 469, 472, 474,
641–642, 645, 645 n. 58, 651, 654 475 n. 24, 475 n. 30, 476 n. 31,
Administrative Litigation Law 123 479 n. 39, 586, 592, 618, 630,
n. 92, 125, 128, 133, 138, 627, 627 632, 634–635, 639, 648, 660,
n. 1, 628, 629, 629 n. 5, 630, 633, 662–663, 665, 672– 673, 679–680,
637, 639, 641–643, 649, 654, 754, 688, 691, 691 n. 93, 693–694, 694
785 n. 21, 794 n. 25, 697, 701, 703, 706, 709
administrative procedure 627, 627 appeal arbitration committee 561
n. 1, 628, 643–644, 646, 646 Arbitration Procedure 561, 674, 668
nn. 60–61; 647–649 articled clerc 818
Administrative Procedure Law, 650 Asano 524–525
nn. 76–77, 651, 651 nn. 80, 82; assemblies 9, 34 n. 8, 36, 41, 43,
652–653, 653 n. 86–87, 654, 654 45, 91, 101, 103–104, 104 n. 38,
n. 88 105–108, 110–111, 114, 117–119,
adultery 280, 286–287, 608, 623, 623 123, 767
n. 92 assistant judges 667, 784, 784 n. 11,
advocate 108, 296, 298, 323, 491 785
n. 41, 526 n. 4, 533, 535, 631, 660, attached advocates 804–805
678, 693, 697, 720, 733, 733 n. 52, attendants 571, 657
739, 757 n. 114, 779–804 Austria 378, 434, 630
advocates’ association 804–805, 810 Author’s Right Law 503
advocates attached to the Ministry of
Justice 804–805 bailiffs 745
Amended Criminal Regulation/s bakufu 1, 3, 5, 16–17, 23, 25 n. 9, 34
25, 144, 162 nn. 215–216; 271 nn. 8, 10; 99, 123, 132, 135, 136
n. 65, 273, 277, 609, 683, 683 n. 123, 140, 151, 151 n. 186, 155,
n. 20, 684–686, 765 160, 168, 171, 278, 337, 404 n. 3,
American influence 543, 646 571–572, 574 n. 16, 602, 628–629,
American legal doctrine 646 655, 662, 711–712, 719, 721 n. 22,
American legal influence 654 726, 756, 757 n. 114, 771, 823
American legal thinking 526 ban on the executive’s
amicable agreement 665, 669 interference 746
830 index
bankrupt 106, 200, 240, 343, 663, 740–741, 751–755, 788, 788
675–677, 803 n. 14 n. 27, 797, 814, 817–818 n. 35,
bankruptcy 193, 356, 361, 377, 822, 826
393–394, 524–525, 663–664, 664 cabinet system 20, 49 n. 43, 99
n. 18, 675, 675 n. 35, 676–678, n. 15, 157
740, 743, 807 care for the poor 580, 591
Bankruptcy Code 379 cartels 364, 523, 526, 526 nn. 4–5,
Bankruptcy Regulations for Peers, 526, 527, 534, 540, 542–543
Ex-samurai and Commoners 664 case study 557
Bar Association 728 n. 42, 749 case-method 28
n. 99, 753, 779, 780 n. 30, 807, Censorate 136 n. 126, 714–716, 790
809, 809 n. 24, 810–812, 813, 813 n. 3
n. 28–29; 815–817, 818, 818 n. 36, Central Charity Association 582
819, 820–821, 822, 822 n. 46, change in occupation policy 563
Basic Law and Regulations for a Diet Charter Oath of Five Articles 23
39 n. 19, 31, 33, 44, 166, 230, 573,
Begriffsjurisprudenz 28 662, 756
benji 120 Charter on the Form of Government
Berne Convention 782, 824, see also seitaisho
410, 459, 462, 485, 503, 505, 505 Checking Section 773
n. 23, 508, 510–511, 515 n. 82, Chichibu incident 2
516 China 3, 8–9, 11, 14, 14 n. 15
big central prisons 760 chindai 99, 120, 135, 757 n. 112
bill of a poor law 580 Chinese law 23, 169, 612, 684
Board of Censors 683, 714 chinshòfu 99, 120, 120 nn. 80, 82;
Boissonade, Emile Gustave 24, 135
24 n. 5, 25–26, 168 n. 5, 175–177, chokurei 20, 585, 591, 767
181, 185, 187, 211, 211 n. 11, chòtei 561, 666 n. 24, 667 n. 27,
213–214, 216, 264–265, 279 668–669, 819 n. 37
n. 119, 312, 483 n. 4, 610, 610 Circuit Court 720, 731, 733–734
n. 12, 611, 612, 612 nn. 23–24; circuit judges 731
612 nn. 28–30; 613, 613 nn. 31, Civil Code 6, 25, 27–28, 38,
33–35; 614, 626, 686, 689, 689 128–130, 154, 166–168, 172–176,
n. 78, 690 n. 82, 735, 737, 741, 176 n. 20, 177–178, 180–184, 184
749 n. 99, 772–773 n. 32, 185–187, 187 n. 34, 188,
borstal 767 188 n. 37, 189–199, 199 n. 57,
branch courts 723, 732 nn. 48–49; 200–201, 205–207, 209, 211–214,
736, 746, 793 216–217, 219, 219 n. 13, 15;
branch divisions 743–744 220–227, 232–238, 240–250,
branch offices 15, 122, 666, 736, 252–256, 259, 261–262, 263, 263
743, 790 nn. 6–8, 11; 264, 264 nn. 14, 18,
British system 409 21; 265 nn. 25–26; 266 n. 29,
Buddhism 152, 153 n. 191, 601, 601 267, 272, 279, 279 n. 119, 282, 282
n. 51, 764 n. 131 n. 161, 283, 283 n. 166, 284,
286–288, 291–292, 293, 293 n. 261,
Cabinet 7–8, 11, 18 n. 6, 20, 21, 21 294 n. 264, 295–296, 297, 297 n. 272,
n. 14, 22, 38 n. 23, 40–41, 46, 48, 298, 299, 299 n. 285, 299
49, 49 n. 43, 51, 75–76, 83–84, nn. 288–289; 299 n. 290–291,
86–90, 98, 99 n. 15, 113–115, 300, 300 nn. 294–295; 301, 301
130, 132, 139 nn. 134–5; 156, 157, n. 298–313, 302, 303, 311 n. 46,
157 n. 207, 158, 158 n. 209, 159, 315 n. 81, 319 n. 122, 322–323,
165, 175 n. 19, 176, 351, 359, 43, 323 n. 168, 324, 324 n. 170, 324
549, 589, 589 n. 34, 594, 677 n. 171–178, 325–327, 328, 328
n. 39, 705, 725, 725 n. 28, 735, nn. 180–206; 353, 353 n. 93,
index 831
354, 359, 361, 438, 484, 489, 494, 395, 396 n. 287, 397, 397 n. 293,
542, 551, 558, 567, 670, 675–678, 397 n. 295, 397 n. 297, 401,
768, 768 n. 45, 825, 825 n. 12 675, 675 n. 36, 676–677
Civil Execution Law 671 n. 30, 680 common soldiers 163 n. 217, 581
Civil Mediation Law 667 n. 27, 669 Communication official 826–827
n. 29, 819 n. 37 complaint 38 n. 22, 123 n. 92, 124
Civil Procedure 25, 25 n. 13, n. 97, 165, 353–354, 360, 439,
26, 178, 183, 258, 270, 319, 319 448, 454, 464, 530 n. 15, 587,
n. 122, 424, 431, 494, 636, 639, 647–648, 669, 673, 675, 679–681,
641, 655–656, 657 nn. 4, 6; 657 691, 694, 697, 710, 716, 723–744,
n. 6, 658, 661–662, 664, 666 789
n. 24, 667–669, 670, 670 n. 30, Composition Law 677
671, 674–675, 677–680, 728, 772, Compulsory Cartels 526
775, 777, 800, 818 Compulsory Execution 670 n. 30,
Civil Procedure Code 353, 638–640 674, 680
clan government 48, 771 conciliation 168 n. 3, 229 n. 2,
classes of assistant judges 784 231, 244, 258, 258 n. 40, 300, 547,
classes of judges 784 548, 560–561, 561 n. 27, 666, 732
classified actions 657 n. 48, 728–729, 753, 819 n. 37
Code of Civil Procedure confession 25, 81, 681, 685, 685
25–26, 178, 183, 258, 270, 319, nn. 31, 33, 685 n. 33, 694,
319 n. 22, 494, 641, 655–657, 664, 696–697, 707, 708 n. 231, 709
666–671, 674–675, 677–680 constabulary 134, 140, 149
Code of Criminal Instruction Constitution of 1889/Meiji Constitution
24, 144, 273, 688, 688 n. 68, 2–4, 6 n. 10, 9, 12, 15,
689, 690, 690 n. 83, 691, 691 26–27, 29, et seqq., 31 n. 6, 38,
nn. 89, 91, 93, 95, 97; 692, 692 44–47, 45 n. 38, 50, 51–55, 57, 60
nn. 102, 105, 110; 693, 693 nn. (text), 111–113, 113 n. 65, 124
112–113, 116–121; 694, 694 nn. n. 93, 128, 131, 145, 150, 158,
122–24; 695–98, 695–698, 179, 207, 208 n. 5, 209, 353, 549,
701, 733–737, 761, 806 594, 633, 636, 643–644, 654, 694
Code of Criminal Procedure 22 n. 130, 702, 706, 739, 785, 796
n. 19, 26, 139 n. 138, n. 15, 820
150, 626, 683 n. 13, 689, 689 Constitution of 1947 10, 21–22,
n. 75, 695, 695 nn. 129, 132; 696, 57–59, 74 (text), 122–123, 124, 130,
696 nn. 133–137; 697, 697 nn. 131, 145, 147, 154, 160, 203, 209,
138–144; 698, 698 nn. 145, 147; 210 n. 10, 295–298, 323, 556, 560,
699–700, 700 n. 163–167, 701 nn. 562–563, 570, 598–599, 601,
168–185; 702, 702 nn. 186–191; 603–606, 622, 638, 649, 654, 679,
705–707, 707 nn. 221–223, 225; 705–710, 751 et seqq. 785, 787,
708, 708 nn. 227, 229, 232; 709, 797, 820, 822
709 nn. 233–238, 242–243; 710, Constitution of the Courts 26, 690
710 n. 245, 709–710, 820 n. 42 constitutional law 27
Colonization Bureau 11, 125 Constitutional Nationalist Party
Commercial Code 26, 146 n. 163, 583, 589
178, 181, 183, 185–186, 193, 327 Constitutional Party 7 n. 11
n. 201, 330, 331 n. 4, 342 n. 40, Constitutional Progressive Party 807
346–347, 350, 350 n. 77, 351, 351 consular jurisdiction 169, 336, 503,
n. 85, 352–354, 355, 355 n. 99, 609–610, 626, 712, 772
357, 357 n. 106, 358, 358 n. 111, continental European law 23, 111
359, 360, 360 n. 120, 362, 369, contravention 141–144, 146, 446, 690
373 n. 175, 375 nn. 183–184; 380, confinement 663 n. 17, 681 n. 3,
380 n. 203, 380 n. 204, 394 757, 763, 769
n. 274, 380 n. 207, 392 n. 264, copper mine at Ashio 810
832 index
copyright 410, 422, 455, 456 n. 10, 308, 547, 607, 607 n. 3, 609, 609
459, 459, 461 n. 24, 462 n. 27, n. 10, 610, 610 n. 12, 611–614,
462, 481 n. 47, 496, 496 n. 64, 617, 617 n. 66, 618–619, 620, 620
500, 500 n. 2, 501, 502, 502 n. 17, nn. 75–76; 620 nn. 78–79; 622, 682
503–507, 508, 508 n. 38, 509, 509 n. 5, 683, 683 n. 20, 684, 702
n. 41, 509 n. 44, 510–512, 515–519 n. 192, 704, 766, 773
Copyright Act 461–462, 495 n. 64, criminal offenses 608
500, 502, 502 n. 17, 503, 504, 504 Criminal Procedure 22 n. 19, 25, 25
n. 22, 504 n. 23, 505 n. 27, n. 10, 26, 139, 144, 150, 622,
506–511, 514–522 626, 681, 681 n. 3, 682, 683 n. 16,
copyright law 410, 422, 462, 684, 685 n. 30, 689–690, 695, 695
500, 504, 508, 508 n. 38, 509 n. 129, 696–698, 688 n. 70, 699,
n. 44, 510, 511, 519–522 689 nn. 75, 78; 700, 702, 702
copyright registration 500, 502 n. 192, 703–707, 708, 708 n. 228,
Copyright Statute 502, 504, 709–710, 715, 733 n. 51,
509 n. 41 747, 772, 774, 777, 780, 789
Corporate Reorganization Law 677 criminal proceedings 714
councillors 30, 30 n. 3, 35, Criminal Regulations
38–40, 44, 48, 48 n. 42, 69, 25, 162, 273, 277, 609, 683, 683
82–85, 87, 93, 96, 98, 99 n. 15, n. 20, 684–685, 765
112, 116, 118, 120, 134 n. 118, Current Utility Model System 448
682, 713, 723, 735 n. 54, 822, customary 16, 123, 168, 174, 184,
823, 823 n. 4, 824–825 187–188, 195–196, 199, 201,
counsel 13, 47, 81, 351, 392, 216, 239, 241, 244, 248–250,
408, 636, 681, 693, 697, 699–702, 251, 251 n. 30 254, 256, 259,
706, 708, 708 n. 229, 708 nn. 262, 310, 353, 360, 519, 693, 753
228–229; 728, 800–801, 806, 811,
811 n. 26, 814 n. 31, 820, 825 daigennin 733, 779, 801, 804, 807,
counsel course for reformatory work 809
582 daimyò 17, 30, 33–34, 34 n. 9, 99
court clerks 745 n. 18, 150, 151 n. 185, 167–168,
Court Extraordinary 662, 720, 724 215, 229, 682, 711
n. 27, 725, 726, 726 n. 31, dajòdaijin 19, 48, 49 n. 43, 99 n. 15,
727–728, 730 n. 44 109, 723, 824 n. 9,
Court Law 156 n. 198, dajòkan 18, 18 n. 6, 19, 19 n. 8,
679–680, 751–755, 778, 779 20, 35, 35 n. 11, 35 n. 12, 38, 48,
Court of Administrative Litigation 57 48 n. 42, 54, 97, 97 n. 9, 98, 99,
n. 64, 70, 126, 127 n. 101, 99 n. 15, 100 n. 19, 101, 109, 120,
133, 633, 785 n. 21, 794 120 n. 82, 152–153, 155, 173,
Court of Appeals 691, 694, 735 238, 574, 658–659, 664, 712, 755,
Court of Original Jurisdiction 823 n. 3, 824–825
691, 694, 735 dajòkan nisshi 35
Court Organization Law 145, 319 dajòkan system 18 n. 6, 38, 48 n. 42,
n. 22, 353, 751, 778, 787–788, 98, 152
797–798, 821 dangerous thought 793 n. 8, 795, 806
Criminal Code 144, 145, 145 n. 159, danjòdai 136, 136 n. 129,
171, 190, 270, 271–273, 275, 137, 714, 790 n. 3
277–278, 289, 289 n. 215, 308 death penalty 607–608, 612,
n. 21, 504, 558, 619, 625–626, 617–618, 623, 626, 708 n. 229,
683, 700 n. 161, 761 731, 733
criminal law 25, 37, 96 n. 3, 145, defence counsel 728, 800 n. 1,
162, 162 n. 215, 190–191, 254, 806, 818, 820
257, 270, 271, 271 n. 65, 272–273, democracy 3, 39, 51, 56, 109, 293,
275 n. 93, 277–278, 305 n. 4, 303, 328, 383, 398, 528, 554,
index 833
557, 559–560, 622, 653, 700, 148, 155, 168, 206, 337, 572,
703, 817 655–656, 686 n. 43, 711, 714–717,
democratization 295, 298, 726 n. 33, 729, 736, 771, 790 n. 3,
322–323, 332–334, 381, 383, 384, 800, 823
384 n. 221, 386, 392, 394, 554, Dòmei 503 n. 19, 522, 566
562, 702, 705 Draft Constitution of Japan 45
Department of Civil Affairs 655–657, draft of a Law for Relief to the Poor
715 578, 580
Department of Criminal Affairs 683,
715–716, 722 n. 25, 756, 757, 757 Educational Affairs Section 772
n. 114, 783, 790, 825 Egypt 689
departments 22 n. 15, 49, 97 n. 9, Eison 601
99 n. 16, 354, 413, 599–600, 655 elder statesmen 39–40, 49, 54, 139,
n. 3, 713, 715–716, 718, 730, 175
741, 748, 782, 791 n. 4, 825 Election of Members of the House of
Design Act of 1899 455–456 Representative 6, 84, 87, 89, 752,
Design Act of 1959 459 796, 796 n. 14
Design Acts 409 elementary schools 107, 151 n. 186,
design law 452–453, 461 n. 24, 770
462–463 Emergency Measures Concerning the
Design Ordinance 453–454, 456 Code of Civil Procedure 679
design protection 452–460, 461, 461 Emperor 9, 17–18, 21–23, 30, 42
n. 24, 462–463, 465 n. 28, 49 n. 43, 56, 45 n. 38,
deflation program 578 104, 111, 113–114, 118, 123–124,
Diet 3, 12, 53, 90, 267, 484, 569, 128, 130, 139, 139 n. 136, 140, 143
586, 589, 600, 699 n. 152, 158, 160–161, 162 n. 216,
Dilution of Anti-trust Policy 532 206, 381, 407, 572, 580 n. 23,
dissenting vote 752 594, 613, 628, 629 n. 5, 631–662,
district 2, 11–15, 20–21, 41–42, 100, 684, 689, 715–716, 718–719, 731,
100 n. 23, 102, 102 n. 26, 104–106, 735, 741, 745–746, 749, 752, 755,
107, 107, 107 n. 49, 111, 116, 756, 756 n. 111, 764 n. 131, 757
118–119, 120, 120 n. 85, 121, 122 n. 114, 784–785, 788 n. 27,
n. 88, 136–139, 151, 268, 571, 571 791–792, 796 n. 15, 812, 817, 824
n. 6, 575, 581, 605, 744, 746, 750, n. 7, 825–826
756–757, 760, 763, 766, 768, 780, Emperor-organ theory 56
782, 786, 793, 793 n. 7, 796, Employees’ Health Insurance Law
801, 803–804, 807–809, 813, 821 596
district court/s 111, 218, 414 n. 23, employment agencies 553, 592
435, 435 n. 46, 441, 462, 462 employment contracts 562, 567
n. 25, 462 n. 28, 477–478, 480 Employment Exchange Law 592
nn. 41–42, 44–45; 481 n. 48, 481 Employment Placement Law 553
n. 49, 484 n. 8, 489 n. 32, 490 English law 177 n. 22, 179–181, 211,
nn. 35, 38; 494 n. 60, 496–497, 774
632, 662, 640, 668, 672, 680, 697, enterprise unions 365, 560–561, 566
732, 740, 743–747, 749–750, Etò, Shinpei 24, 39, 172–174, 174
752–753, 784 n. 12, 786, 792, n. 17, 264, 632, 658, 719–720,
803, 805, 807–809 722–724, 724 n. 27, 726, 726
district office 121–122 n. 33, 727–728, 758, 789, 801, 825
division of powers 120 European law 23, 111, 612, 793
Document on the Government System examination 25 n. 13,
31, 44, 96, 120, 123 149, 157–158, 158 n. 209, 165,
see also seitaisho 186, 393, 408–409, 425–427, 427
domains 17, 19 n. 8, 33–38, 40, 54, n. 9, 433, 440, 444, 448–449,
96–99, 100, 100 n. 20, 103, 135, 453–454, 457–458, 465–469, 477,
834 index
594, 655–670, 672, 679–680, French Patent Act 424

687–688, 691–692, 693, 693 n. French practice 674
114, 694–697, 699–701, 704, 707 French-style tripartition of offences 690
n. 220, 743, 745, 770, 773 n. 12, French surenchère 674
774–776, 776 n. 20, 777, 777 nn. Friendship Association 551
23, 25; 778, 778 n. 26, fu 99–100, 100 nn. 19, 21; 103,
779–781, 783 n. 4, 797, 120, 135, 655, 714, 717, 721, 729,
803–804, 807–808, 810, 816 732, 732 n. 50
Expropriation 132–134, 434, 437, fukoku 3, 19–20, 110, 134, 144, 351,
635, 644 659, 688 n. 60, 692 n. 104, 717
fure 17, 19
Factory Law 6, 551–552, 584–585, Furukawa 310 n. 39, 310 n. 41, 313
589, 598 n. 47, 590, 594 n. 57, 314 n. 69, 367, 524–525,
Fair Trade Commission 483 n. 6, 810
491–492, 497, 529, 530, 530 n. 15 Fuse 402, 404, 404 n. 4, 467 n. 5,
532–533, 534, 534 n. 29, 535–536, 814
538–539, 540, 540 n. 44, 542, 646 futatsu 19–20, 659
Family Courts 324, 752, 798 n. 24
family nation 582 gaikyoku kisoku 22
Family Register Law 100 n. 22 garrison (chindai ) 99, 135
Federation of the Non-Government gendarmerie 138, 813 n. 29
Jurist 818 General Council of Trade of
felonies 144, 690–691, 694, 696, Japan-Sòhyò 565
734–735, 742, 748, 807 General Head Quarters 754
feudal domains 17, 99, 155, 714, General Staff Office 49, 54
716, 771 genròin 20, 39–40, 44, 44 n. 33,
First Tokyo Bar Association 813 54 n. 57, 102, 264 n. 24, 454, 735
foreign judges 738–739 n. 54, 740
foreign teachers 772–773 German advisers 26
foreigners 24, 24 n. 7, 33, 136, German code 245, 360, 381, 621,
197, 271, 284 n. 179, 336, 387, 670–671, 674
421, 426, 426 n. 17, 427, 443–444, German Code of Civil Procedure of
450, 470–471, 512, 518, 609, 712, 1877 670
718, 722–724, 738–739, 757 n. 114, German influence 28, 484, 620,
766, 772, 739 n. 61, 806, 822 646, 695
n. 45 German law 25 n. 13, 26–28, 180,
forfeit 94, 164, 621 182–183, 185, 187, 214, 234, 331,
Formalities for Public Document 351, 360, 467, 502, 526, 615,
20–21 618, 620 n. 75, 627, 642, 667,
filing a claim 656 675–676, 676 n. 38, 678, 700, 700
five-family neighbourhood 105 n. 41 n. 161, 707, 737–738, 747, 774
French advisors 546 German legal concepts 629–630
French Code d’Instruction Criminelle German legal doctrine 642, 644,
689 654
French codes 171, 183, 688 German legal tradition 674
French influence 484 German legislation 376, 486, 620,
French law 24–25, 25 n. 11, 145 680
n. 157, 181, 186, 197, 211–212, German model 166, 178, 182,
264, 266, 266 n. 28, 268, 279, 186, 200, 233
314, 359, 467, 611, 615, 667, 675, German patent system 409
686, 688, 700, 700 n. 161, German Penal Code 26 n. 15,
718, 735, 771–772, 774, 789 613, 617, 619–620
French model 172, 174, 178–179, German Utility Model Act 443–444
356, 358 n. 111, 379, 687 German Utility Model Act of 1891 444
index 835
Germany 7, 27–28, 50, 57 n. 66, health insurance system 579, 589, 600
113 n. 61, 166, 178 n. 23, hearing in court 661
180–186, hierarchy 783–784
352, 360, 373, 377–378, 380, high court 11–15, 19 n. 10, 30, 129,
383, 426, 442–444, 471, 485–486, 434, 435 n. 45, 435 n. 742, 462,
497, 503, 523, 526, 586, 620, 630, 477, 477 n. 35, 478, 484, 479,
651, 689, 737, 742, 787 490 nn. 37, 39–40; 493 nn. 56–58;
Gijisho 33, 34 n. 10 496, 496 n. 64, 497, 506 n. 28, 513
gijò 120, 682 n. 8, 713, 823 n. 68, 529 n. 9, 530 n. 11,
giseikan 35, 37, 97, 824 662–663, 680, 687, 709, 711, 726,
Gotò, Shinpei 579 729–731, 732 n. 47, 733, 733 n. 51,
Governing Reformatory Work 734, 734 n. 54, 735, 743, 743
767–768 n. 81, 744, 752–753, 807
governor (chiji ) 11–12, 14, 14 n. 12, Hinbyòin 572, 588
15, 99, 99 n. 18, 100–101, 103 Itò, Hirobumi 40, 46, 48 n. 42, 50
n. 32, 106, 108–109, 111, 114, n. 45, 112, 344, 359, 737, 787
116, 118–122, 122 n. 88, 122 Hòki 22, 150 n. 178, 497–498
n. 90, 127–128, 134, 139 n. 138, Hokkaido 11, 19–20
158, 534, 632, 722, 735 n. 54, holding company/ies 367, 370–371,
742, 756, 762, 765, 767–768, 795 371 n. 168, 372, 384, 385, 385
Great Council of State 35, 173 n. 226, 390, 390 n. 255, 400, 524,
n. 15, 174, 263, 269, 270, 270 528–529, 531, 535–538, 540
nn. 59, 62; 271, 273, 273 n. 77, Home Ministry 97–98, 108, 110
274, 275, 275 n. 93, 276, 307, 307 n. 54, 115, 137, 138, 142 n. 149,
n. 17, 308, 308 n. 28, 309, 310, 144–145, 147, 153, 156 n. 201,
310 n. 43, 311, 682, 683 760, 762
n. 20, 683 n. 21, 684, 686 homicide 277–278, 617–619, 625,
nn. 41–42, 688, 688 n. 65, 683, 698
689, 689 n. 79, 692 n. 103, 693 hòmufurei 22
n. 114, 694 n. 125, 698 n. 146, hòrei 12–13, 22, 22 n. 18, 695 n. 131,
823 n. 3, 824–825 698 n. 147, 703 n. 197
Great Court of Judicature 686, 694, hòritsu 12–21, 25 n. 11, 124, 128,
696, 709 131, 189, 195, 296 n. 268, 323
Great-Council-of-State 824 n. 166, 385 n. 229, 396 n. 288, 331
Group of Liberal Jurists 814, 814 n. 4, 397 n. 292, 397 n. 296, 491
n. 31 n. 46, 506 n. 29, 520–522, 528
guild system 342–343, 452 n. 8, 614 n. 39, 644–645, 679, 704
gunchò 102, 121 n. 200, 706 n. 215, 772, 774,
Gyòki 601 810, 816
Gyòsei shidò 539, 643, 649, 649 n. 74 Hòritsushi 3
gyòseikan 36, 97, 120 n. 82, 152, 756 Hoshi, Tòru 804–805
house of correction 757, 757 n. 112,
han 17, 17 n. 3, 99, 100, 100 768
nn. 19–20; 103, 157 n. 207,
273 n. 83, 337, 683, 711–712, Illustrated Regulations for Prisons
714–715 758–759
hanji 688 n. 61, 691 n. 99, 718, ILO 551, 553
731, 774, 776, 782, 782 n. 3, ILO Congress 551
783–785, 786, 786 n. 22, 823 ILO’s 1919 general meeting 553
Hayashi, Reisaburò 818 Imperial Edict on Relief for the
health insurance association 590, Families of Non-Commissioned
596, 600 Officers 581
Health Insurance Law 6, 589–590, Imperial Endowment Welfare
593–596, 600 Organization 582
836 index
Imperial House Law 406, 406 n. 11, 408–409, 433 n. 37,

50, 53, 62, 64, 73, 75 434 n. 41, 477 n. 35
Imperial Rescript on Education 5 jiyù minken undò 2, 39, 735 n. 54, 736
n. 6, 10 n. 15, 52, 582 n. 25 jòri 731
Imperial Restoration Order 30, 96 Judge 12, 16, 25–26, 47, 57, 76, 89,
n. 1, 823, 823 n. 4 111, 125, 134, 145, 146 n. 165,
Imprisonment 143, 162 n. 216, 161, 236, 258, 424, 497, 604, 617,
269, 274, 290, 307 n. 18, 619, 640, 663, 667–669, 671–672,
424, 564, 609, 619–620, 623, 626, 672 n. 33, 675, 678–679, 681, 685,
685 n. 31, 700, 707, 708 n. 229, 687, 691–694, 696–697, 701–702,
719, 732–733, 750, 755 n. 103, 707–708, 718, 720, 726–728,
756, 758, 760–761, 763, 769 731–732, 734, 737, 739, 739 n. 61,
independence of the courts 734 741, 743, 746, 747, 747 n. 89,
Indictment 535, 688, 691, 692, 748–749, 752–754, 774–779,
692 n. 101, 693, 696, 700–702, 781–784, 785, 785 n. 21, 786–787,
707–708 788, 788 n. 27–28, 788 n. 28,
Industrial Property 402–403, 405, 789, 794, 802–803, 808, 809,
407, 407 n. 13, 408–410, 422, 427, 809 n. 23, 819, 821, 821 n. 44,
431, 434, 434 n. 41, 438, 440 825 n. 12
n. 47, 441, 445, 447, 451, 456, Judicature 6, 12 n. 5, 19 n. 9,
459, 465–467, 471, 473, 477, 488, 40, 53, 69, 96, 127 n. 103, 287
489 n. 32, 498, 532 n. 198, 301 n. 297, 655, 657 n. 5,
industrial revolution 545, 550 687, 694, 696, 709 711–712,
Inoue, Kaoru 40, 726, 726 n. 33, 714–715, 717, 719, 722, 724–725,
738 727, 728, 732, 738, 746, 790, 797,
Institute of Invention and Innovation 804, 811, 813–814
407 judicial administration 751–752
Intellectual Property Basic Act 413 judicial apprentice 778
International Bar Association 812 Judicial Examination Law 778, 778
International Conference on Prison n. 26
Affairs 761 judicial police 137 n. 130, 138, 139
interpretation of the regulations 730 n. 138, 140, 148, 727, 790, 790
intervening administration 130 n. 3, 791, 793, 797 n. 19, 818
invasion of Korea 98, 724, 724 n. 27 Judicial Research and Training
Inukai, Tsuyoshi 589 n. 36, 594, Institute 778
812, 817 Judiciary 59, 88, 323, 325, 630 n. 9,
Itò, Hirobumi 27, 40, 46–47, 48, 48 634–636, 637 n. 34, 638, 665,
n. 42, 50, 50 n. 45, 52, 111, 112, 702, 706, 730 n. 44, 737, 740, 740
112 n. 60, 126 n. 100, 186, 208, n. 63, 746, 748, 749, 749 n. 99,
208 n. 5, 267, 344, 351 n. 83, 751–752, 782, 784, 787
353, 359, 521, 629, 632, 632 n. 16, Jurisdiction 46, 49, 102, 109, 118,
633, 695 n. 130, 787 126 n. 100, 135, 139, 141, 162,
Iwakura, Tomomi 111, 724, 726 169, 217, 336, 351, 406, 411,
n. 31, 737 425, 426 n. 7, 434, 488, 493, 503,
530, 539, 572 n. 8, 609–610, 626,
Japanese Federated Lawyers’ 656, 665, 671, 673, 680, 682,
Association 822 690–691, 694, 696, 712, 714–719,
Japanese Lawyers’ Group for the 720, 720 n. 20, 724, 731, 732 n.
Cause of Labourers 815 50, 733, 736, 740,
Japanese Lawyers’ Society 810–811, 742–744, 752, 772, 785, 785 n. 21,
813–816, 818–819 795, 825
Japanese Patent Act 409, 423, 428, Jurisprudence Section 772
431, 434 Jury Act 703
Japanese Patent Office 402, 405, Jury Law 749–750, 813–814
index 837
jury system 689, 689 n. 78, 733, Kuandung 11–12, 14

735, 753–754 kuchò 100 n. 23, 102, 104
Justice Department 264, 271, 276–277, Kujikata, Osadamegaki 16, 25 n. 8,
309, 671, 686, 686 n. 39, 687, 687 168, 756 n. 106
n. 54, 688 n. 59, 689, 698–699 Kuwata, Kumazò 582
Justice Ministry Court 662, 720, 720 kyò 99 n. 15, 825
n. 20, 721, 723, 727, 729, 733 kyùkeihò 18, 80, 609
Justice Ministry Court Extraordinary
662, 720 labour dispute 6, 547–548, 556–557,
juvenile correction institute 164, 764 560, 563–564, 669
Juvenile Law 749, 753, 768, 768 Labour Dispute Conciliation Law
n. 143 547
juvenile prison 767–768 labour dispute resolution 560
Juvenile Welfare Law 602, 605–606, labour law 6, 544, 549, 551 n. 13,
768 554, 556–558, 560, 562–563, 566,
570, 593
kaiteiritsurei of 1873 609 labour movement 146 n. 167,
kakitsuke 17 548, 556–557, 592, 795
kakurei 20 labour protective laws 551
karikeiritsu 607, 609, 683 n. 78 labour relation commissions 561–562
keihòjimu 823 labour rights 548, 550
Keiretsu 367, 367 n. 151, 389–390, Labour Standards Law
537–539 562, 567, 598, 599 n. 48
ken 38, 99 n. 18, 100, 100 nn. 19, Labour Union Law 10, 550, 557
20; 103, 120, 122, 126, 655, 714, Land Expropriation Law 132–133,
717, 721, 729, 732, 782 635, 644
kenpeitai 138–139, 797 Land Tax Reform 130, 131
Kirkwood 737, 741 n. 110, 205, 205 n. 2, 207, 211,
kisoku 22, 37 n. 18, 39, 43, 102, 577
107, 108 n. 50, 125, 131–132, 136 law 4–5, 6, 6 n. 7, 8, 12, 15–26, 26
n. 125, 138, 141, 157, 173, 240, n. 16, 27–29, 32, 39, 44, 46–47,
264 n. 17, 359 n. 116, 408 n. 17, 50–51, 52, 52 n. 54, 53, 55,
408 n. 18, 423 n. 1, 574, 577, 664, 55 n. 59, 57, 59–60, 62–66, 68–70,
671, 677, 685 n. 34, 698 n. 149, 76–78, 80, 82–83, 85–93, 96 n. 3,
725, 732 n. 48, 769, 774–775, 101, 105 n. 40, 107 n. 49,
779–781, 801–802, 804, 809 110–113, 117–119, 122 n. 88, 123,
Kiyoura, Keigo 147, 582, 762 123 n. 92, 124, 124 n. 93, 126, 126
kizokuin 44 n. 98, 127, 128 n. 106, 129 n. 108,
kochò 100, 100 n. 22, 102–105, 130–131, 133–134, 134 n. 118,
111, 112 137, 139 n. 136, 141, 141 n. 146,
kògisho 36, 36 n. 14, 37, 97 n. 7, 757 144, 145, 145 nn. 157, 160;
n. 114 146–147, 148 n. 172, 149, 151,
kokutai 6, 10, 51, 51 n. 51, 52, 52 151 n. 181, 154, 155 n. 195,
nn. 52, 54; 55–59, 153, 208, 293, 158–159, 159 n. 211, 164, 166–176,
795 177, 177 n. 22, 178–181, 183–187,
kokutai no hongi 10 n. 15, 52 191, 193, 193 n. 50, 194, 196, 200,
Korea 1, 10–13, 13 n. 8, 14, 14 205–209, 210 n. 10, 213, 215,
n. 14, 15, 50 n. 46, 98, 139, 362, 217– 219, 221–230, 233–235,
461, 526, 533, 724, 724 n. 27, 238–239, 242, 244–245, 248, 251,
742, 794–795 254, 260, 264–266, 266 n. 29,
Kowashi, Inoue 1–2, 40, 50, 61, 100 267–268, 270, 270 n. 57, 271, 281,
n. 19, 101, 332 n. 8, 352, 629, 629 283 n. 163, 288, 293–294, 295
n. 5, 632, 632 n. 18, 726 n. 33, n. 266, 296, 298–299, 305, 310–311,
633, 726, 738 314, 322 n. 162, 323
838 index
n. 164, 324, 327, 330, 330 n. 2, Responsibility for Workermen

331, 334–337, 341, 350 n. 78, 594, 599
351–354, 354 n. 96, 355–357, 359, Law for Maintenance of Public Peace
362, 373, 375, 377–381, 388, 146, 146 n. 167, 593
390–391, 391 n. 263, 392, 394, 395 Law for Mental Homes 588
n. 282, 396, 398–399, 426, 431, Law for the Constitution of the Courts
439, 443–446, 453, 456, 460–463, 26, 670 n. 30, 712, 712 n. 6, 734,
466–467, 471, 474–477, 481, 483, 736–738, 740, 751, 753, 775–776,
484, 487 n. 23, 489 n. 32, 491 783 n. 4, 785, 792, 807
n. 43, 496, 497, 504, 506, 508–509 Law for the Election of Members of
n. 44, 510–511, 516, 518–519, the House of Representatives 6,
526, 528, 531, 533–534, 541 n. 48, 796
549 n. 9, 552, 553, 553 n. 18, 557, Law for the Maintenance of National
562, 568, 568 n. 36, 569–570, Defence 819
576–581, 583, 586–587, 589–594, Law for the Maintenance of the Public
596, 598–600, 603–607, 612, Peace 796
614–615, 617, 617 nn. 65, 68; Law for the Prevention of Trachoma
620–621, 622, 622 n. 83, 623–627, 588
627 n. 1, 628–630, 633–634, Law for the Prevention of Tuberculosis
636–637, 637 n. 35, 638–639, 640, 588
640 n. 42, 641–642, 644, 644 n. Law for the Public Prosecutors’ Office
55, 645, 645 n. 60, 647–651, 797–798
653–654, 657, 658, 661, 663–665, Law for the Special Control of
666 n. 24, 669–670, 671 n. 30, Seditious Papers 9
673, 673 n. 33, 674, 674 n. 34, Law for the Special Control of Speech,
675, 676, 676 n. 38, 679, 682–684, Publications, Assemblies, Societies
688–691, 693–694, 697–698, and the Like 9
700 n. 161, 702 nn. 192–193; 703, Law for the Supervision of Offences
703 n. 197, 705–706, 709–710, Involving Danger 9
712, 713 n. 6, 715, 716, 716 n. 13, Law Governing Reformatory Work
718–725, 728–731, 733 n. 51, 735, 767–768
737, 739, 746–748, 749, 749 n. 99, Law Governing the Application of
750–755, 758, 763, 766, 768–770, Laws 21
771, 771 n. 4, 772–774, 774 n. 15, Law Governing the Organization of
775–778, 780–782, 785, 785 n. 21, Rural Districts 101–102, 121
786, 787 n. 25, 788–790, 792–793, law of administration 123, 124 n. 94,
795 n. 12, 796, 796 n. 14, 798, 125, 127
802–804, 806–810, 812, 813, Law of Civil Procedure 655, 728
813 n. 28, 814, 814 n. 31, Law of Criminal Procedure 26, 622,
816–817, 819, 819 n. 37, 820, 822 681, 681 n. 3, 685 n. 30, 688 n. 70,
nn. 45–46; 825–827 700, 703 nn. 196, 199, 704 n. 203,
Law Concerning Forms of 710, 715, 749 n. 99
Promulgation 21–22 Law of Insolvency 664 n. 18, 675, 777
Law Concerning Insurance Against Law of Procedure in Non-contentious
Accident Compensation 598 Litigation 677–678
Law Concerning the Restriction of law of social security/insurance 570
Practising Law 816 law of social welfare and public health
Law for a Famine Relief Fund 44, 570
577, 581 Law of the Constitution of the Courts
Law for Adjustment of Domestic 137 n. 130, 696, 704
Relations 669, 753 Law on Cases for Administrative
Law for Equal Opportunities in Adjudication of Illegal Disposition by
Employment of Women 568 Administrative Authorities
Law for Insurance Against 126, 634, 636
index 839
Law on the Minimum Age of 183, 188, 191, 209, 213, 219,
Industrial Workers 6 222–224, 226, 230–232, 232 n. 9,
Law on the National Public Service 235, 245, 254–255, 257, 263, 268,
Mutual Aid Association 599–600 270, 270 n. 57, 300, 300 n. 293,
Law School 24–25, 173, 179, 267, 309 n. 35, 311, 328–329, 334, 336,
314, 359, 626, 718, 720, 723, 726, 351–352, 376, 377 n. 191, 396
731, 771–772, 774, 808 n. 287, 408–409, 423, 446, 448,
lawful administrative practice 124, 468, 471, 473, 484–485, 486 n. 17,
128 489, 489 nn. 28, 32; 490, 498, 500
law-office 802 n. 3, 527–528, 540, 548, 548 n. 8,
lawyer/s 24, 266, 339, 351, 392, 551, 553–555, 563, 567–568, 573,
407, 544, 549, 610, 616, 654, 657 580, 586, 591, 603, 606, 607, 607
n. 6, 659 nn. 8–9; 671, 700, 704, n. 1, 609–611, 613–614, 617–618,
728 n. 42, 741–742, 746 n. 88, 620, 622, 633, 640, 643–644, 646,
773, 773 n. 14, 774–778, 779, 779 650 n. 76, 652, 655, 670 n. 30,
n. 28, 780 nn. 29–30; 781, 781 680, 681 n. 3, 682, 689, 695, 704,
n. 32, 786–787, 798, 800, 800 710–711, 713 n. 7, 716, 720, 724,
nn. 1–2; 807–808, 809, 809 n. 24, 738, 740 n. 63, 754, 783 n. 6,
810–813, 814, 814 n. 31, 815–818, 789, 793, 803 n. 15, 806 n. 19,
819, 819 nn. 37–38; 820, 820 nn. 823
40, 42; 821, 821 n. 44, 822, 822 legislative organ 32, 39, 115, 686,
nn. 45–46 757 n. 114, 824
Lawyers Examination Ordinance 780 lese majesty 613, 623
Lawyers Law 777, 780, 781 n. 32, Liberal Democratic Party 606, 652
807–808, 810, 812–813, 815–816, Liberal Party 2, 157 n. 207, 735,
820–821, 821 n. 44, 822, 822 n. 46 737, 804 n. 16, 806–807
lay judges 725–726, 753–754 Livelihood Protection Law 605–606
LCC 737–738, 738 n. 55, 739, 741 local administrative units 100
n. 70, 742, 742 nn. 77, 79; 743, Local Autonomy Law 22, 107 n. 49,
745–746, 747, 747 n. 90, 748–749, 122 n. 90, 123, 154 n. 193
776, 776 n. 21, 777, 780, 785–786, local court/s 11, 13, 15, 237–238,
787 n. 25, 792–794 665, 667–668, 671–672, 674, 696,
Leased House Law 668 720–721, 721 n. 22, 722–723, 729,
Leased House Mediation Law 732, 732 n. 48, 733, 740, 743,
668–669 746–748, 776, 784, 792–793,
Leased Land Law 668 795–796
Left Chamber 19 n. 8, 38–39, 173, local government 47, 101, 111, 111
173 n. 15, 174, 719, 726, 825 n. 57, 112–113, 115 n. 73, 119,
legal action 28, 88, 125, 127–129, 122, 414, 651
131, 133, 165, 230, 232, 235, 656, local police 41, 136–137, 149, 720
657 n. 7, 659–660, 667, 668, 668 Local Public Employee Act 564
n. 28, 669, 678 local self-government 91, 149 n. 177,
legal education 24 nn. 4, 6; 25 631
n. 13, 770, 772–773, 775, 779, 781, Local Tax Regulations 102, 106, 109
802, 816, 821 n. 43 Lord Keeper of the Privy Seal 8, 49,
legal officer 771, 782, 798 49 n. 43, 54
legislation 4, 8, 11 n. 2, 20 n. 12, 24 LSL 567–569
nn. 5, 7; 25 n. 10, 31, 35–36, 38,
40, 44, 47 n. 41, 49, 53, 57 n. 66, MacArthur, Douglas 10, 57, 59, 381,
77, 96, 96 n. 4, 97, 108, 112–114, 554 n. 19, 623
114 n. 71, 115, 115 n. 76, 117, machi bugyò 18
127, 131, 132 n. 114, 147 n. 168, machi toshiyori 18
148, 148 n. 172, 161, 170, 172, Madrid Agreement 409–410, 480,
176 n. 20, 177, 180, 180 n. 26, 485, 487, 489, 491 n. 41, 498
840 index
Madrid Agreement on the 158 n. 208, 159 n. 211, 594–595,

Suppression of Misleading 724, 751
Indications 409, 485 ministries (shò) 19, 24, 38 n. 23,
Manchukuo 797, 797 n. 21 40–41, 97–98, 98 n. 12, 99 n. 15,
Manchuria 8, 15, 50 n. 46, 332, 125, 132, 136, 138, 163 n. 219,
362, 797, 814, 817 359, 411, 536, 593, 650, 652, 655
Matsukata, Masayoshi 61, 340, 576, n. 3, 723, 755, 791 n. 4, 804 n. 17,
578 823 n. 5, 825
Mayet, Paul 577 Ministry of Finance (òkurashò ) 97–99,
mediation 6, 561, 665–666, 666 99 n. 16, 126, 189, 243, 343–344,
n. 24, 667, 667 nn. 26–27; 668, 345 n. 52, 349, 453, 577, 587, 717,
669, 669 n. 29, 670, 679, 728–729, 722–724, 726 n. 33
819, 819 n. 37 Ministry of Home Affairs 760–763,
mediation laws 669, 669 n. 29 764 n. 131, 766–767
mediation proceedings 666–667 Ministry of Justice 11, 11 n. 2, 19, 19
Medical Care Guarantee Law 605 n. 9, 22 n. 15, 24, 24 n. 6, 25, 25
n. 55 n. 13, 35 n. 12, 96, 97 n. 8, 123
Meiji Code of Criminal Procedure n. 92, 124 n. 97, 125–126, 137,
695, 695 n. 129, 696, 696 nn. 137 n. 130, 138, 140, 143, 156,
133–137, 697, 697 nn. 138–144; 173–175, 195–197, 203, 219, 231,
698, 698 n. 145 235, 237–240, 246, 323, 351 n. 85,
Meiji Constitution 36 n. 16, 44 352, 355 n. 99, 359, 406, 454, 607,
n. 35, 57–59, 124, 128–129, 145, 610, 616, 626, 632–633, 658–659,
153, 158, 179, 179 n. 25, 183, 662, 665–667, 678, 705, 712–714,
207–209, 351, 548–549, 551, 629 716–721, 721 n. 22, 722–725,
n. 7, 631, 630 n. 9, 631 n. 14, 633, 725 n. 30, 726, 726 n. 33, 727,
633 n. 19, 636, 638, 640, 643–644, 730–731, 734–735, 738, 738 n. 55,
654, 689 n. 78, 695, 702, 702 747 n. 90, 749, 752, 752 n. 101,
n. 193, 706, 751, 820 753–755, 755 n. 103, 757, 759–760,
meirei 21, 21 n. 14, 651, 674 n. 34 767, 769, 771, 771 n. 4, 772–776,
Memorial Concerning the Protection 776 n. 20, 777, 780, 782–784, 789,
of the Poor Relief, the Workers and 790 n. 3, 791, 791 n. 5, 793,
the Leaseholders 580 796–797, 800–802, 804–805, 807,
mercantile bankruptcy 664, 664 810, 815–816, 817 n. 34, 820–823,
n. 18, 675–676 825–827
militaristic tendency 704 Ministry of Legal Matters 752
militarists 7–9, 51, 57, 594 Ministry of Public Works 98
minbushò 97, 97 n. 9, 98, 655, 715 Ministry of the Interior 97, 501–502,
miners’ guilds 583 505 n. 24, 575–576, 579, 582, 715,
Mining Industry Law 583, 587, 594 727, 793
Mining Industry Statute 583 Ministry of Trade (MITI) 406, 411,
Mining Law 208, 583, 589–590, 669 512, 532–535
Minister of Justice 24, 94, 174–175, Minobe, Tatsukichi 55, 55 n. 60, 56,
264, 297, 589 n. 35, 658, 677 56 n. 61, 56, 124, 124 n. 93, 637,
n. 39, 717, 719–721, 723, 725, 728, 637 nn. 33, 35; 645 nn. 57–58; 646,
731, 741, 743, 745–746, 748–749, 817
751, 777 n. 25, 783–786, 789–790, Minor Offence Law 145
793, 793 n. 7, 798, 801, 803, misdemeanour 690–691, 694, 694
806–807, 809, 813, 813 n. 28, 815, n. 125, 696–697, 734–736
817–818, 822 n. 46, 825 mitigating circumstances 618–619
ministers 32, 38 n. 23, 40, 45–46, Mitsubishi 367, 368, 369, 371, 384, 389,
48–49, 49 n. 43, 51, 53, 60, 69, 523, 524, 525, 527, 530 n. 14, 537,
76, 86–87, 92–93, 98, 99 n. 15, 538, 539, 568 n. 35, 730 n. 44
109, 113, 133, 157 n. 207, 158, Mitsui 8, 342 n. 39, 345, 347,
index 841
367–368, 368 n. 152, 369–372, 384, notaries public 781

389, 523–525, 527, 537–539 notice-boards 18, 20, 573
Mitsukuri, Rinshò 807
Miyoshi Taizò 678, 741, 787 offences 9, 69, 141, 141 nn. 146–147;
monopoly of the lawyer 816 144–145, 162, 424, 432, 488, 625,
moral reform of prisoners 764 690–691, 693–697, 701, 703,
Mosse, Albert 26, 47, 50, 50 n. 47, 720–721, 729, 733–736, 742–743,
111–112, 113, 113 nn. 61–62, 793, 795, 805–806, 811
64–66; 114, 114 nn. 68, 71; 115, offences involving dangerous thoughts
115 n. 76, 633, 737–738, 738 9, 793 n. 8, 795
n. 59, 739, 739 n. 61, 741 Office of Finance 714
Mother and Child Protection Law Office Regulations for Public
595, 605 n. 55 Prosecutors 789
Movement for Democratic Rights Office Regulations for the Law School
( jiyò minken undò ) 39, 45 771
mutual aid among the people 572 Office Regulations for the Ministry of
Mutual Aid Associations 599–600 Justice 719, 721, 757, 771, 789,
mutual aid organizations 583 801
mutual benefit associations 585, official counsel 806
589–590 official for the defence 806
Mutò, Sanji 585–586 Official Gazette 20–22, 35, 160, 376,
441, 713 n. 6, 778
naikaku 18 n. 6, 21, 49, 98, 695 Official Powers of the Cabinet 49
n. 131, 698 n. 147, 703 n. 197, Ogawa, Shòson 571, 572 n. 10, 576
725 n. 28 n. 18, 582 n. 24, 586 n. 32, 588
naimushò 98, 153, 715 n. 33, 642 n. 50
nanushi 18, 105, 105 n. 40 Ohara, Naoshi 818
National Bar 814, 817–818, 820 Ohara, Shigeya 757, 757 n. 114, 759
National Civil Servants Law 159, òjòya 105
563 Okada, Asatarò 766
National General Mobilization Law Òkubo, Toshimichi 39–40, 48, 98,
9, 819 101, 728, 730
National Health Insurance Law Òkuma, Shigenobu 157, 157 n. 207,
595–596, 600 158, 162 n. 216, 343, 426, 594,
National Personnel Authority 22, 723, 739, 826
159–160 Òkura 345 n. 52, 367, 384 n. 222, 524
National Polity Clarification Old Commercial Code 185, 342
Declaration 6, 10 n. 15, 45, n. 40, 346–347, 354, 357–359, 369,
50–52, 56, 58, 153, 795 675, 675 n. 36, 676
National Public Employee Act 564 Old Copyright Act 500, 503, 504,
National Training Institute for Prison 504 n. 23, 508, 510, 522
Officials 762 Old Penal Code 612, 614–615,
Nationalist Party 583, 589, 812 618–619
Nationwide Lawyers’ Federation for open court 81, 493, 670 n. 30, 723,
the New Structure 818 745
natural law 25, 169, 181–182, 209, 688 oral proceedings 671
Naval General Staff Office 54 Ordinance Concerning Advocates
New Copyright Act 461, 462, 506, 779–780, 802, 803, 803 n. 12, 804,
508–509, 522 810
New Penal Code of 1907 26, 611, Ordinance Concerning the Higher
616, 618, 769 Civil Service Examination 776–778,
New Structure 760, 818, 818 n. 35 780
Ninshò 571, 601 Ordinance for Progressive Treatment
no indictment, no trial 688, 692–693 in the Prisons 769
842 index
Osaka conference 39, 729 Peace Police Law 5 n. 6, 148 n. 172,

Òshio, H. 1 547, 796 n. 13, 811
Òtsu case 784, 811 Peace Preservation Law 549, 703–704
Outline/s of the New Criminal Law Penal Code 24, 25, 25 n. 8, 26, 26
25, 162 nn. 215–216; 257, 270, n. 15, 139, 141 n. 147, 162 n. 215,
271, 271 n. 66, 272–274, 277–278, 607, 607 n. 4, 608–609, 610, 610
308, 608, 683, 683 n. 20, 684–685, nn. 12, 17; 611–613, 614,
689 n. 75, 716, 756 614 n. 39, 615, 615 nn. 43, 44;
Outlines of Mediation 667 616, 616 nn. 46, 51, 55; 617–621,
623–626, 683 n. 20, 713, 734, 746,
Paris Convention 406, 409–410, 427, 756, 769, 811
443–456, 456 n. 11, 466, 471–473, Penal Code of 1907 162 n. 215, 614,
476–477, 484–487, 487 n. 21, 617, 619–620, 623 n. 92
488–490, 494 Penal Law 19, 19 n. 10, 24–26, 142
Paris Convention on the Protection of n. 148, 147, 157, 160, 162, 162
Industrial Property Rights 410, 456 n. 215, 171, 254, 548, 607,
Parliamentary Law 55 622–623, 626, 772, 774–775, 777,
parliamentary under-secretary 827 780, 803–804
parliamentary vice-minister 826–827 Penal Law Administrative Secretariat
party cabinet 7, 51, 139 nn. 682, 712–713, 713 n. 10, 755–756,
134–135, 157 n. 207, 589 n. 34, 782, 823
594, 814, 817, 826 Penal Law Office 136, 682, 713–715,
Party of Friends of Constitutionalism 756, 782–783, 790 n. 3, 824–825
580, 587 penalties 35, 142 n. 149, 236, 552,
Patent Act 408 n. 17, 409, 411, 414 559, 565, 607–608, 626, 755 n. 103,
n. 23, 423–425, 427–429, 429 756, 760, 762, 765, 820
n. 12, 431, 433–435, 440, 444, pension 163, 163 n. 219, 164, 164
456–457, 466, 468–469, 472, 476, n. 220, 165, 243, 268, 348, 583–584,
485 596–597, 600, 614, 786, 793
Patent Act 1885 423, 425 periods of development 1, 3
Patent Act 1888 425 Perry, Matthew 1, 404, 404 n. 2,
Patent Act 1909 428–429, 431 405, 682
Patent Act 1921 431 petition 30, 37–38, 38 n. 22, 39, 44,
Patent Act 1959 431 n. 34, 434, 440 65, 68, 78, 125, 192, 273, 311, 434,
patent attorneys 407, 408, 408 n. 19, 434 n. 41, 632, 643, 655–657,
415, 417, 422, 427, 427 n. 9, 474 659–661, 666–668, 673, 677, 690,
patent law 423, 438–439, 440 n. 47, 721, 729
441–445, 451, 467, 477 petition and answer 659
Patent Lawyers Law 821 police 1–2, 8, 10, 41–43, 98–99, 103,
Patent Office 402–403, 405, 405 106 n. 47, 110 n. 54, 121, 121 n.
n. 7, 406, 406 n. 11, 407–409, 413, 86, 128, 134–135, 135 nn. 119–120;
425, 426, 429, 429 n. 12, 431, 433 136, 136 n. 125, 137, 137 n. 130,
n. 37, 434, 434 n. 41, 435, 437, 138, 138 n. 133, 139, 139 nn. 134,
439, 458, 460, 463, 469, 471, 472, 137–138; 140, 140 nn. 138–139;
474, 475 nn. 24, 27, 30; 476 nn. 141–144, 146–147, 148, 148 n. 172,
31–32, 34; 477, 477 n. 35, 478 149, 149 nn. 175, 177; 150, 150
patent tribunal 428, 430, 432 n. 178, 163, 209, 547, 565, 590,
patricide 608, 613, 623, 626 707, 708, 708 n. 230, 710, 720,
patriotism 9, 39, 813, 817, 820 723, 727, 736, 760–763, 769 n. 146,
Patriotic Lawyers’ Society of Great 789, 790, 790 n. 3, 791, 793, 796
Japan 818, 820 n. 40 n. 13, 797, 797 n. 19, 814, 818–820
Patriotic Party 39 Police and Prison Academy 121, 763
peace court/s 144, 667, 691, 693 police bureau 137–139, 139 n. 138,
n. 114, 735–736, 785, 785 n. 21 140–141, 147, 762
index 843
police jurisdiction 736 principle of free conviction 25, 692,

Police Law 5 n. 6, 135 n. 119, 138 694
n. 132, 139, 146–147, 148 n. 172, Prison Bureau 756–757, 759, 762
149 nn. 173–175; 547, 796 n. 13, 811 Prison Law 708 n. 228, 742 n. 79,
police offences 141, 141 n. 147, 769, 769 n. 146
144–145, 690–691, 694, 696, prisons 109, 121, 139 n. 138, 164,
734–736 708 n. 228, 718, 742 n. 78, 755
police officers 142, 149, 149 n. 177, n. 103, 756, 757, 757 nn. 112–113;
736, 760, 762 758–768, 769, 769 n. 146, 810
political parties 3–4, 7, 39, 48 n. 42, private action 690, 692, 696, 707
51, 56, 157, 550, 588 n. 34, 594, Private Charity Society 582
826 prize court 794
posts of judges 783 probation 71, 157, 614, 617, 619,
Potsdam Declaration 10 n. 13, 154, 760, 775, 775 n. 17, 791–792, 808
294–295, 381, 705, 751 probation system 619–621
prefectural assembly 43, 106, 119, Procedure in Personal Matters
134, 735, 735 n. 54 677–678
Prefectural Assembly Regulations procurator 88, 687–688, 690–694,
102–103, 109 696–697, 698 n. 146, 789, 789 n. 2,
prefectural court/s 662, 666, 687, 791
720–724, 729, 731–732, 732 nn. promotion practice in prison labour 758
47–48; 733, 784, 784 n. 12, prosecuting official 792–793
789–790 prosecution 96 n. 3, 433 n. 37, 493,
prefectural office 20–21, 100, 109, 530 n. 15, 532, 608, 687, 690, 695,
120–121, 123, 662 702–704, 707, 707 n. 223, 708–710,
prefectural organization 116 723, 735, 735 n. 54, 792, 793 n. 8,
prefectures 2 n. 4, 3, 11, 19, 19 795, 799
nn. 8–9, 20, 38, 42, 97–100, 100 prosecutor 12, 488, 687, 701, 707,
nn. 18, 20; 101–102, 103, 103 707 n. 223, 708 n. 230, 736, 746,
n. 32, 115–116, 118, 120, 122, 122 748–749, 775–780, 780 n. 30, 781,
n. 90, 132, 136, 139–140, 142, 144, 786–787, 789, 789 n. 2, 790, 790
156 n. 200, 407, 497, 574, 574 n. n. 3, 791, 791 n. 4, 792–793, 793
16, 580, 582, 587, 591, 632, n. 7, 794, 794 n. 11, 795, 797–799,
655–656, 658, 686, 716–717, 811, 820, 821 n. 44, 822
719–722, 722 prosecutors’ branch office 790
n. 24, 723–724, 726 n. 33, 729, Prosecutors’ Office 464, 704, 742,
731, 732 n. 50, 733, 736, 744, 760, 745, 748, 775, 789, 791–793, 793
762, 765, 767, 800, 803 n. 7, 794, 797–798, 819, 821 n. 44
preliminary examination 656–657, prostitution 141, 143, 143 nn.
659, 687, 691–692, 693, 693 150–151; 144–145, 145 nn.
n. 114, 694–697, 699–701, 704, 159–160; 146, 146 n. 166, 625
707 n. 220, 743 providing administration 130, 152
presumed innocence 693 Provisional Order Governing the
presumption of innocence 694 Handling of Legal Actions of
Prime Minister 7 n. 11, 8, 21, 40, Individuals Against a Chamber of
48–50, 54, 59, 75, 86–88, 94, 99 the Council of State, a Ministry, the
n. 15, 109, 139 n. 134, 158, 158 Colonization Bureau (Hokkaidò), or
n. 208, 159, 160, 162 n. 216, 165, a Prefecture 125
186, 267, 297, 303, 359, 414, 454, Prussia 50, 112, 207, 630, 630 n. 9,
529, 532, 561, 589, 594–595, 623, 631, 633, 636 n. 32, 670, 769
639–640, 642, 653, 677, 677 n. 39, Prussian law 27 n. 18, 578
751, 754, 777, 817, 818 n. 35, 824 public action 690, 704
n. 9 Public Corporations Labor Relations
Prince Shòtoku 570, 570 n. 1, 601 Law 563
844 index
Public Health Insurance 491, 570, n. 317, 309–310, 347, 356, 361,
579, 588–589 408, 410, 427, 427 n. 9, 432, 444,
public prosecutor/s 12, 14 n. 12, 26, 446, 449–450, 453–456, 458, 465,
88, 139, 158–159, 161, 671, 671 467, 467 n. 7, 468–474, 476, 476
n. 31, 687, 690, 708, 712, 720–721, n. 31, 477, 478, 478 n. 38, 479,
721 n. 23, 723–724, 727–728, 730 479 n. 39, 480–481, 490, 500, 502,
n. 44, 736, 745, 747 n. 90, 749, 513, 518, 521, 576, 576 n. 17, 743,
751, 753, 757, 775–776, 777, 777 803, 807, 807 n. 22, 808–810,
n. 23, 778–781, 784, 784 n. 13, 821–822
785–787, 787 nn. 24–25; 789–791, Regulation for the Organization of the
792, 792 n. 6, 793, 793 n. 7, Justice Department 687
794–796, 797, 797 n. 20, 798, Regulations Concerning Examination,
804–805, 807–809, 811–812, Probation and Training of Civil
814 n. 31, 819–821, 825 Officials 157, 775
Public Prosecutors’ Office 464, 704, Regulations for Courtroom Order 802
742, 745, 775, 789, 792, 797–798, Regulations for Criminal Courts 685
819 Regulations for Criminal Proceedings
public summons 674 685, 687
public support 572 Regulations for Prisons 758–759,
Publication Statute 500 761–763, 765–766
Regulations for the Organization of
re-appeal/s 662–663, 665, 673, Prefectural Government 109
679–680, 691, 694, 697, 720, 733, Regulations Governing Rural District
735, 744, 748, 820 Organization 116, 119
reason 25, 28, 31, 118 n. 78, 126 Regulations Governing the
n. 98, 144, 154, 168, 170, 172, Organization of Cities 114
175, 180, 184, 186, 187 n. 34, 191, Regulations Governing the
197, 202, 208, 211, 217, 219, Organization of Prefectures
239–240, 244, 247, 261, 269, 276, 115–116, 118
285–286, 300, 307, 307 n. 18, 309, Regulations Governing the
310, 318–319, 337, 342, 352, 354, Organization of the Senate 44
356, 358, 360–362, 365, 370, 372, Regulations Governing the
380, 388, 388 n. 246, 390, 393, Organization of Towns and Villages
406, 413, 425, 427, 432, 436, 438, 112, 114
447, 447 n. 13, 470, 472, 476, rei 19–20, 144–145, 157, 159,
483–486, 509 n. 44, 518, 528, 531, 162–163, 587, 595 n. 41, 736, 769,
589, 607, 609, 612, 613, 613 n. 31, 776–777, 785
614, 615, 615 n. 44, 617–619, 623, relief for soldiers 586
629–630, 647–648, 650 n. 77, Relief Fund 44, 577, 581, 585, 596
651–652, 653 n. 87, 659, 665, 673, Relief Law 574, 579–581, 591–595,
706, 722, 731, 733, 733 n. 51, 737, 595 n. 41, 599 n. 49, 604,
741, 745, 800, 811 n. 26, 812 605 n. 55, 606
recourse 184, 628, 641, 663, relief organization 579 n. 20, 585,
672–673, 695–697, 733 593
Reform of 1921 621 relief policy 574
Reform of 1941 621 Relief Regulations 574–576, 578,
reform of penal law 622 580–582, 591–592
Reformatory Law 768 Relief Work Investigation 603
reformatory school/s 767–768 Renewal of Procedure 673, 695
regional assembly 36, 103 Rengò 567
registration 103, 154–155, 173–174, renunciation of war 59, 76
191, 193, 212–213, 217–218, 223, retrial 12, 14, 428, 694, 696, 698,
253, 268, 271, 275 n. 93, 276, 698 n. 146, 706, 709, 710, 733
286–287, 290 n. 229, 294, 299, 304 Riverol, Henri de 24, 718, 771
index 845
revision 3, 5, 10, 12, 23, 25, 109, sa’in 19 n. 8, 38, 173, 263 n. 13, 264
111, 113 n. 65, 115, 115 n. 76, n. 14, 825
117, 124, 175–176, 186–188, 208, Saga no ran 39
208 n. 4, 213, 233, 261, 293, 293 saibansho 59, 135, 135 n. 122, 137
n. 255, 294–295, 297, 297 n. 272, n. 130, 144–145, 300 n. 295,
299, 303, 322, 323 n. 168, 328, 325 n. 176, 662, 679, 712 n. 6,
350 n. 77, 354, 356, 358–360, 392 717–718, 720, 729, 730 n. 44, 735,
n. 264, 396, 397, 396 n. 287, 399, 740, 743, 749 n. 98, 751–753, 778,
403, 409, 429 n. 12, 434, 440–441, 782, 782 n. 1, 784, 785, 785 n. 19,
450, 451, 473, 475, 477, 485–487, 787, 792, 802, 807
494, 501, 505, 506, 506 n. 28, 508, Saigò, Takamori 1, 724, 730
508 n. 38, 509, 510, 510 n. 49, Sakhalin 795
511, 521, 536, 559, 565, 607, 614, samurai 2, 19, 30, 33, 34 n. 9, 39, 50
622, 626, 648 n. 69, 678, 688–690, n. 45, 54, 120, 148, 151 nn. 182,
695, 698–699, 705, 709, 737–740, 185; 152, 157, 162, 162 n. 216,
760, 762 163, 189, 191, 232, 268–269,
rice riots 589, 591, 592 n. 38 271–272, 275, 277–278, 305, 305
right to livelihood 556 n. 3, 306–307, 309–310, 343, 345,
Risshisha 39 348, 348 n. 69, 349, 500, 524, 546,
Road Law, Land Expropriation Law 655, 655 n. 2, 656, 659, 664, 714,
635 718, 724 n. 27, 757 n. 114, 770,
Ròdò Kumiai Kiseikai (Society for the 823
Formation of Labour Unions) 10, San Francisco Peace Treaty of 1951/2
547 10, 489
Roesler, Hermann 26–27, 50, 50 sanbyaku daigen 802, 810, 816
n. 47, 113, 183, 185, 207–208, 209 sanyo 30, 38 n. 20, 120, 713, 782, 823
n. 7, 350 n. 77, 351, 351 nn. 83, SCAP 10, 10 n. 14, 57, 57 n. 66,
85; 352–353, 355, 355 n. 100, 356, 210, 381, 383–385, 391–394,
356 n. 103, 357, 360, 379, 631, 396–397, 528, 532, 554, 554 n. 19,
631 n. 13, 633, 633 n. 19, 555, 558–559, 565, 638, 640,
675–676, 737 646–647
Rudorff, Otto 26, 664 n. 20, 670 school 1, 24–27, 27 n. 19, 103, 107
n. 30, 731 n. 47, 737, 737 n. 55, n. 47, 129, 150, 151, 151 nn.
738, 738 nn. 57, 60; 739–740, 740 181–182; 185–187, 189; 152,
n. 63, 742 n. 80, 743, 743 n. 81, 152 n. 190, 157, 173, 177, 179,
747, 747 n. 90, 785, 785 n. 18 181–184, 186, 192, 196, 211, 233,
rule of law 22, 53, 59, 124, 124 267, 314, 338, 353 n. 93, 359, 501,
n. 93, 126, 133, 180, 394 n. 276, 550, 600, 604, 614, 626, 718, 720,
549, 637, 643, 644, 644 n. 55, 723, 726, 731, 764–765, 767, 770,
645–646, 648, 698, 712 770 n. 1, 771–772, 774, 777, 780,
rule-making power 88, 679, 751, 787, 808, 825 n. 12
797, 820 school attendance 765
Rules for the Adjudication of school section 772–773
Litigation Involving Different scribe 486 n. 17, 659, 660, 720, 733,
Prefectures 656, 800 733 n. 52
Rules for the Conduct of Court Seamen’s Employment 592
Affairs 123, 664, 731 Seamen’s Insurance Law 596
Rules for the Supervision 728 Second Tokyo Bar Association 813
Rules Governing the Appointment as sei 19–20, 364 n. 133
Judge 774 sei’in 19 n. 8, 38, 174, 658
Rules of Temporary Relief for Poor seidojimu 96 n. 4
People 577 seidojimuka 35
Rules on Participating 725 seidojimukyoku 35
Ryukyu islands 795 seidoryò 35
846 index
seirei 21 social work institutions 604

seitaisho 31, 35–37, 53, 96–97, 99, 99 Social Work Investigation Commission
n. 18, 100 n. 19, 103, 120, 123, 604
156, 714, 782, 824 Social Work Law 604–605
self-government 26, 100, 111–112, socialist ideas 581
115, 120, 149 Socialist Party 549 n. 10, 579
Senate ( genròin) 20, 40, 44, 102, 352, Society of Political Friends 812
454, 735 n. 54, 740 sociology of law 28, 557, 652 n. 83
separation of powers 33, 35, 53, sòrifurei 21
96–97, 123, 140, 549, 629, 629 South Manchurian Rail 15, 817
n. 5, 633 South Saghalin 11–12, 15
separation of the three powers 40, 44 South Sea Island 11, 15
Service Regulation for Prefectural Special Court 70, 638, 742, 808
Officials 102, 141, 141 n. 146, Special High Court 734, 734 n. 54,
160, 725 735, 735 n. 54
seven offices 97, 100 n. 19, 824 Special Measures 223, 576, 639, 640,
17th year’s reform 110 640 n. 42, 641–642
Seyakuin 570–571 special political police 814
sham agents 800, 800 n. 4 Special Wartime Criminal Law 704
Shanghai 140 n. 138, 797, 797 stamp 656, 658–659, 674, 678, 721
n. 21, 812, 814 Standing Conference of the Regional
Shibusawa, Eiichi 341, 582, 726 n. 33 Head Officials (chihòkan kaigi )
Shihòshò shokumu teisei 719, 789 40–41, 102–103
Shihòshò shokusei shòtei 719, 789 State Compensation Law 130, 647
shiki 19, 23 State Councillor 99 n. 15, 723, 725,
Shimamoto, Nakamichi 802 730, 825
shinritsukòryò 608–609 state labourer 584
Shogun 11, 16–18, 29, 33, 36 n. 14, State Police 797
49 n. 43, 711, 770 status 15, 30, 32, 48, 77, 82, 122,
Shògun 34, 168, 305 n. 4, 571, 574 146, 146 n. 165, 154–155, 158, 162,
n. 16 165 n. 223, 173–174, 189, 191, 194,
shòrei 20, 22 203–206, 215, 223, 230, 257, 263,
Shòtoku 570, 570 n. 1, 601 271, 277, 281, 295, 295 n. 266,
Shùgiin 36, 36 n. 16, 37, 37 n. 18, 316, 319 n. 122, 322, 323 n. 164,
38, 38 nn. 20, 22; 44, 97 n. 7, 353, 337 n. 12, 357, 382, 385, 392, 507,
403, 796 n. 14 548, 558–559, 567, 608–609, 612,
Shùgiin nisshi 37, 38 nn. 21–22 628 n. 2, 634, 671, 770, 779, 782,
Social Democratic Party 549, 579 784, 786 n. 22, 787, 789, 791–792,
n. 21, 796 798, 801, 815
social insurance system 588, 598, 600 student 25, 33, 151 n. 182, 167, 172,
social security 570, 572, 572 n. 10, 180–181, 183, 185, 568, 718, 723,
573, 584, 586, 592 n. 37, 598, 771–774, 774 n. 15, 783 n. 4, 811
602–603, 605–606 Students Section 772–773
Social security/insurance law 572 Suit on Documents and Bills of
social service 601, 605 Exchange 673
social status 77, 82, 158, 203, 223, Sumitomo 367, 368, 371, 384, 389,
230, 323 n. 164, 567, 608–609, 612 524–525, 527, 537–539
social undertakings 150 summary court 680, 752–753, 781,
social welfare commissioners 592, 821 n. 44
595 Summary Trial Regulation 736
Social Welfare Law 601, 603, 605 Supreme Court 19, 22, 25 n. 12, 40,
n. 55, 606 52 n. 54, 57 n. 64, 59, 75, 88–89,
Social Welfare Service Law 150, 602, 129, 158 n. 208, 194, 218, 289
605 n. 215, 296, 300 n. 295, 301, 325
index 847
n. 176, 326 n. 179, 428, 428 Three New Law 43, 101 n. 24, 102,
nn. 10–11; 429, 429 n. 13, 430 106–107, 109–111
nn. 20–25, 29–32; 431 n. 34, 432, Three Offices (sanshoku) 30, 30 n. 4,
433 n. 38, 434, 435 n. 42, 446 35, 96, 152, 823, 823 n. 3
n. 9, 458, 462 n. 28, 472–474, 474 three powers of the state 96
nn. 22–23; 475, 475 nn. 24–26; tokibe 722, 722 n. 25, 783
476 nn. 31, 33; 477 n. 35, 478 Tokugawa 16–17, 33, 49 n. 43, 96,
n. 36, 479 n. 39, 480 n. 43, 481 143, 147, 148, 148 n. 170, 152,
nn. 46–47; 484, 484 n. 7, 488 156, 168, 168 n. 4, 170 n. 8, 206,
n. 25, 490, 491 n. 44, 496, 507, 228, 229, 229 n. 1, 231, 262–263,
507 n. 32, 513, 523 n. 1, 529, 531, 268–270, 274, 277–278, 288, 305,
535, 540 n. 45, 557, 563–565, 305 n. 3, 306–307, 308 n. 23, 311,
567–568, 587, 623, 626, 638, 332, 336–338, 343, 348–349,
648–649, 659, 662–663, 671, 367–368, 404, 452, 456, 483, 503,
678–680, 690, 691 n. 94, 695, 707 524, 547–548, 571–572, 607, 628,
n. 223, 709, 710, 710 n. 246, 720, 628 n. 2, 655, 681–684, 686, 690,
729–732, 733 nn. 51–52; 734–735, 711, 712 n. 5, 757, 770–771, 800
739, 739 n. 61, 740, 744–746, 747 Tokugawa, Yoshimune 571, 770
n. 89, 748, 749 n. 99, 751–754, Tokyo Advocates’ Association 805
772, 778–779, 784–785, 785 n. 21, Tokyo Bar Association 780 n. 30,
786–788, 791 n. 5, 792, 797, 803, 811–813, 813 n. 29, 815
805, 807, 809, 811, 820, 822, 825 Tokyo Court 666, 717–718, 722, 744,
Supreme Court of Justice 729, 784, 749, 782
790 Tokyo Court for the Open Markets
Supreme Military Council 54 718, 724
suspension of execution 639, 641 Tokyo Law School 772
suspension on probation 614, 619 Tokyo Lawyers Society 812
Tokyo Prefectural Court 724
Taishò Democracy 7, 56, 303 tort 260, 484, 484 n. 9, 637
Taiwan 11–12, 14–15, 41, 41 n. 26, torture 25, 81, 622, 681, 681 n. 3,
139, 163 n. 218, 332, 362–363, 682 n. 5, 684, 685, 685 nn. 31,
461, 502, 526, 585 33; 686, 686 nn. 37, 39, 690, 706–707,
715
Takahashi, Korekiyo 364, 402, 405, Toyotomi, Hideyoshi 571
408, 422, 466, 468 trade mark 313, 402, 406–407,
tasshi 17, 19, 110, 124 n. 97, 756, 409–410, 417, 445, 451, 455, 458,
765, 800 466, 467 n. 5, 468–477, 478,
Tax Practitioners Law 821 478 n. 36, 479, 479 n. 39, 480,
taxation 2, 80, 107, 130–131 481, 481 n. 49, 482, 488–490, 491,
technology transfer centres 411–414 491 n. 44, 493, 496–497, 743
technology transfer offices 413 Trade Mark Act 466–468, 469, 469
Techow, Hermann 26, 670, 670 nn. 10–11; 471–474, 476–478, 491
n. 30, 674 Trade Mark Law 410, 466, 471, 474,
Temporary Measures Law 705–706 476 n. 31, 479, 481–482, 491, 491
tennò 4–5, 10, 27, 44, 51–52, 56, n. 43
58, 158, 296, 362, 549, 682, 684, trade union 555, 557, 559–560,
811 565–566, 567, 567 n. 34, 589, 590,
Tentative Criminal Provision 683, 593
685, 713, 756 Trade Union Law 554–555, 559–563,
terakoya 151 nn. 185–186; 770 565, 567, 589–590
The Law for the Prevention of traineeship 776
Prostitution 145, 606 Treaty of Portsmouth 12, 14–15, 138
theory of free law 28 n. 133, 794
three labour law 562, 566 Trust Busting 528, 536
848 index
trustee in bankruptcy 676 von Stein, Lorenz 47, 209, 631, 631
types of prison 761, 769 n. 13, 633
U.S. law 409 Wada, Hiroo 94, 124, 125,

U.S.-based Patent Act 425 125 nn. 97–98; 127, 127 n. 103,
u’in 19 n. 8, 38, 825 129, 133 n. 117, 629, 629 n. 8,
unemployment 335, 364, 400, 630, 630 n. 11, 632, 632 n. 16, 633
552–553, 589, 592–594, 596 n. 45, n. 21, 634 nn. 22–23, 25; 635, 635
599, 604 nn. 25, 28; 636, 636 n. 32, 637
Unemployment Benefit Law 593, 598 nn. 33, 36
unemployment insurance 592–593 Ward, Town and Village Assembly
Unemployment Insurance Law 594, Law 110
598 wealth and military power of the
unequal treaties 3, 5, 23, 25, 53, nation 134, 717
263, 306, 336, 352, 426, 456, 485, welfare pension insurance 600
502, 682, 699, 737, 760–762 Welfare Pension Insurance Law 596,
Unfair Competition Act 486, 486 600
n. 17, 487, 489, 489 n. 32, western law 5, 5 n. 5, 24 n. 2, 27,
490–491, 493–494, 496–498 167 n. 1, 170–171, 183, 219, 224,
Unfair Competition Act of 1934 409, 351 n. 80, 609, 684, 688, 710
488 workers’ insurance 585, 589, 593
Unfair Competition Law 406, 483, Workers’ Pension Insurance Law 596
483 n. 4, 487, 496, 498–499 Workmen’s Accident Relief Law 594,
unfair labour practices 559–560 599 n. 49
unionism 546–547, 555, 557, 561 written law 6 n. 7, 16, 19, 28, 131,
unification of the bench and bar 778 168, 184, 196
unregistered marriage 587
USA 3, 10, 10 n. 16, 13, 24, 57, Yamada, Akiyoshi 61, 112, 175, 352,
122, 787, 793–794, 804 670, 738
ushers 745 Yamagata, Aritomo 48, 48 n. 42,
utility model 406, 409, 417, 443–451, 112–113, 115, 158, 727, 826
458–459, 496 Yasuda 367–368, 384, 524–525, 527
Utility Model 1905 428 Yòjòsho 571, 662, 712, 785 n. 21
Utility Model Act 443–448, 450–451,
458, 476 zaibatsu 4, 7–8, 10, 334, 367, 367
Utility Model Law 402–443, n. 149, 368, 368 n. 152, 369, 369
445–446, 446 nn. 8–9; 447 nn. n. 157, 370–372, 384, 384 n. 221,
12–13 385, 385 n. 227, 386, 386 n. 234,
Village Assembly 105, 108, 110, 132 387, 387 n. 240, 389–392, 394,
von Gneist, Rudolf 27, 47, 111, 112 524–526, 527, 527 n. 7, 528, 531,
n. 60, 630–631, 633 533, 537, 539, 542–543
von Seebach, Kurt 762 Zenrò 566–567
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HISTORY OF LAW IN JAPAN SINCE 1868

HANDBOOK OF ORIENTAL STUDIES

M. BLUM · R. KERSTEN · M.F. LOW

HISTORY OF LAW IN JAPAN SINCE 1868

Library of Congress Cataloging-in-Publication Data

The Library of Congress Cataloging-in-Publication Data is available on

Authorization to photocopy items for internal or personal use is granted by

PRINTED IN THE NETHERLANDS

Prefatory Notice .......................................................................... vii

Chapter One: Generalities (Wilhelm Röhl ) ................................ 1

Chapter Two: Public Law (Wilhelm Röhl) ................................ 29

Chapter Three: Civil Code ...................................................... 166

Chapter Four: Commercial and Corporate Law in Japan

Chapter Five: Intellectual Property and Anti-Trust ................ 402

5.5 Trade Mark Law (Christopher Heath) ............................ 466

Chapter Six: Labour Law (Hans Peter Marutschke) .................... 544

Chapter Seven: Social Law (Wilhelm Röhl ) .............................. 570

Chapter Eight: Penal Law (Karl-Friedrich Lenz) ........................ 607

Chapter Nine: Procedural Law ................................................ 627

Chapter Ten: Legal Education and Legal Profession

Index .......................................................................................... 829

This book is not the work of a single author or a continuously coop-

1.1 Periods of Development

to which the youth of south-west Kyushu (mostly of samurai pedigree)

– The four editors (N. Ukai, M. Fukushima, T. Kawashima,

join such an association in knowledge of the circumstances. That

Those laws were the result of an increase in consideration of the

violence: on 15 March 1928 and 16 April 1929 large-scale perse-

tightened: the Law for Maintenance of the Public Peace of 1925,

the victorious powers, in the way of democratizing Japan which was

1.2 The Scope of Japanese Law

I. At the time of the resignation of the last Shogun and restoration

China acknowledged Korea’s independence when the Chinese-Japanese

the Resident-General of Kantò (Kantò sòtokufu) at Liaoyang (Ryòyò).

1.3 Types of Rules and Promulgation

It is an element of a modern legal system that laws and regulations

I. In pre-modern times, the Tokugawa bakufu and the bureaucracy,

ber of the Council of Elders (ròjù). Members of the Council of Elders

The pre-Meiji authorities used various methods of promulgation,5

oﬀence against sei, even when a chamber, a ministry, or the Hokkaido

III. On 22 December 1885 the dajòkan dissolved, and the cabinet

oﬃce, hòmufurei (ordinance of the Cabinet’s bureau of legal aﬀairs),

1.4 Foreign Influences

Japan’s law system has experienced signiﬁcant eﬀects from foreign

began to study the European codes in earnest. The object of study

With the exception of Prof. Roesler, the above named persons

In its entirety the Civil Code showed itself to be an eclectic law

2.1 Constitutional Law

Even if there is no written constitution the shape of a state can still

The way things stood demanded for authoritative proclamation of

1867, among other matters of more administrative character, that

Since the Charter Oath was merely a declaration of intent, it had

State shall be threefold, legislative, executive, and judicial. Thus

revenue may be supplemented, military installations strengthened,

Yamanouchi, daimyò of Tosa, Fukuoka had already in September/

(ii) One of the seven administrative sections established within the

was dissolved, reinstated for a short period from 23 May to 22 June

the domains in a central deliberative organ became unnecessary.

years: 14 April 1875–22 October 1890. The new legislative organ,

an assembly of the people’s representatives would be achieved step by

The following answer to be discussed had been drafted in advance:28

ﬁfty policemen, but more or less inhabitants in a ward according to

to ordain a constitution based on the fundamental character of Our

In this situation the Emperor on 12 October 1881 announced the