5. CIVIL LAW

The principal law regulating the civil life of Japanese people concerning their legal personality, property, contracts and related phases, is provided for in the former part of the Civil Code which has been valid since its first legislation under the Meiji Constitution, while the latter part on family, marriage, and inheritance was revised after the War as stated above.

Truly civil law was received from Western countries. However, without sufficient indigenous development of important legal practices to assimilate or be smoothly replaced by received systems, no reception could have been successful. Such a rapid assimilation or replacement of law as that which took place in Japan's modern history must be evidence of the preceding indigenous development. As a matter of fact, such important legal practices as of legal personality, possession, ownership, pledge and hypothec, contract, tort, damage, etc. had been developed with relative similarity to those in developed Western countries (cf. Wigmore, 1967–79). Their differences lie in that they were limited to some small circles of the population under feudal control by the Shogunate and lords. Many more indigenous factors may be enumerated among a variety of items in civil law than in public and criminal law. Below are some noteworthy examples to be compared with other countries.

(1) Customary rights in adjoining relationships

The Civil Code includes thirty Articles of various adjoining relationships. Among them, four Articles (217, 219[III], 228 and 236) make provisions for the parties to follow “local customs” which are different from the Code's provisions in regard to the bearing of expenses for necessary work concerning water, fences, buildings and boundaries.

(2) Iriai-ken

Japanese farming in feudal ages depended to a large extent upon the common use of pastures and forests, whose legal character is now understood to be almost the same as that of the Gesamteigentum of a German Genossenschaft, rather than the Roman type of possession or ownership as provided in detail in the Civil Code.³⁵ The right of the members of a village community to a common land has been called iriai or iriai-ken. Because the received law included no appropriate models for the right, and the Japanese legislators did not have enough detailed information concerning the practices to devise a new system of the indigenous right, only two general clauses were inserted in the Civil Code to meet urgent needs. The first was to apply local customs of that area as well as the provisions of joint ownership (Article 263), and the second local customs as well as those of easements (Article 294). Such treatment resulted in clashes, often leading to violence or struggles for generations, between the owners, including the state, who were protected by modern official titles, and the farmers who dependend upon their common lands in customary practices with insufficient legal protection. Many cases have been brought before the courts. But the courts’ decisions, based ordinarily upon a legalistic interpretation, have tended to be unfavourable for farmers, disregarding a few opinions of scholars for farmers. The right of common has declined due to such insufficient official protection. Still it has survived, even with some transformation of older practices. In 1966, a new law called the Common Land Modernization Act was enacted for the purpose of improving farmers’ rights to common lands by reformulating their outdated practices into more modernized rights. The indigenous right of common has thus been changing dynamically.

(3) Eikosaku

There is an indigenous kind of practice adopted in the Civil Code; it has as many as ten articles, but in reality it seems almost lost. This is the eikosaku or eikosaku-ken (perpetual land lease) which means a farmer's cultivation or cattle-raising on another's land under a special type of contract with periods of duration from twenty to fifty years, according to the law. It was originally devised to reformulate an indigenous type of land use that had prevailed in feudal Japan among landless peasants. These peasants had been subordinated to landowners with an ascribed status without any definite limitations to their obligation to landowners or duration of their status. The provisions of the Civil Code aimed in a way to elevate the status of such peasants by reducing their indefinite duties to definite ones, while their subordinate status was preserved for the benefit of landowners. The provisions are thus of feudalistic character in a sense. The practice has almost disappeared, especially after the land reform, and criticisms have been raised among specialists calling for the deletion of the provisions from the Code.

(4)Ne-teito

The Civil Code provided two ways of securing the payment of a debt: shichi (pledge) mainly on movables, and teito (hypothec) mainly on immovables. By these provisions, ne-teito (fixed collateral), a widely prevailing practice to deposit security on immovables for an unlimited number of debts within a limited amount, lost official validity. But its practical usage was so effective that the Supreme Court approved it as valid in a suit as early as 1901.³⁶ After a long period of approval in case law, a most extensive supplement in the Civil Code took place in 1971 to add new provisions of the ne-teito with twenty-one articles (Articles 398–2 to 398–22).

(5) Joto-tampo

There is another practice of security which took a similar course to ne-teito. It enabled a debtor to keep the offered movable and used by himself, unlike shichi where the offered movable should be handed over to his pledgee.

(6) Some others

One, relating to inkan or hanko (seals and their impressions), has been already mentioned in the previous description on criminal law.

a. Mimoto hosho

This is somewhat similar to the previously mentioned ei-kosaku in its historical transformation. When a person was hired in the feudal ages as a labourer, whether for home work, shop work or manual work, a guarantor was required to vouch for his origin, morality, religion, family, history and so on, as well as to secure his possible negligence, tort and damage. Being called mimoto hosho (vouching for a person as a whole), it was an indispensable institution to maintain the social structure based on feudal status. In the Meiji era the practice survived, and the contract of mimoto hosho was approved as legally valid by court judgements. In 1933 a law called the Personal Reference Act was enacted to standardize the contract by limiting some specific obligations of a guarantor, though with some feudalistic survivals. After the War, having been viewed as unsuitable for the capitalistic, democratic society, the law is almost officially unused, though the practice still often nominally followed.

b. Kazoe-doshi

In Japan, one's age was and still is often counted in calendar years unlike Western countries that count it in full years.

c. Shakkan-ho

The measurement that Japanese people had used for a long time was shakkan-ho, of Chinese origin, and based on shaku for length and kan for weight. Two other systems were received after the Meiji Restoration: the metric and the yard-pound. After several decades of mixed use of the three systems, the government adopted before the War the policy of depending upon the metric system. In 1959 the Measurement Law was promulgated, to go into force the following year. It limited the legitimate system to metric only and prohibited production and sale in the measures of other systems except those specifically admitted as special units. In actuality, the metric system has been gradually extending its coverage to many phases of Japanese life. Still, shakkan-ho is used prevailingly, among others, in the measurement of lands, buildings, cloth, liquids, etc., where the Japanese traditional styles of life are preserved. The practical need for it was so ardently demanded that the government legally recognized it in 1977, although exceptionally and partially, under the metric system of the Measurement Law.³⁸ This is a good example of an indigenous practice which competes with the law and then becomes valid by way of a legal technique.

Through the examples enumerated above from civil law, a trend may be found: the indigenous factors adopted in the official civil law are not static, but in dynamic transformation, declining, persisting or reviving. The declining are feudalistic factors supported by an absolutist policy, such as the perpetual land lease and vouching for a person as a whole. The persisting are useful ones, whether in feudal ages or modern, such as the adjoining relationships, fixed collateral and mortgage. The reviving are the other three examples. But the modes of the revival are varied. Their revivals are not as they were before the war nor in feudal ages. Even a declining tendency is found in the three reviving ones, for the counting of one's age in calendar years is adopted in no more than exceptional cases, the traditional measures are limited, and the right of common has been reformulated. Still, they occupy formal positions in the state law. In brief, the indigenous factors adopted in the received legal system are in transformation or reformulation, adapting themselves to changing circumstances.