6. COMMERCIAL LAW
Commercial law as designated here includes not only the Commercial Code of 1899, but also some others related to it, as in the case of civil law. Fundamental preparations in the latest feudal age for receiving Western capitalistic commercial law had also been pushed forward indigenously, as was recognized by an author who even stated on the other hand that “the development of a legal structure for economic enterprise began only in the Meiji era” (Michida, 1963: 507–508).
Apparently the Japanese commercial law is mostly composed of received factors. But, as has been pointed out, the Commercial Code declares in Article 1 that commercial custom should apply to commercial matters when there is no provision in the Code. The modernity-oriented commercial law thus could not totally expel indigenous factors. What is more remarkable is that some specialists in Japanese economic history tend to exemplify the existence in later feudal ages of many indigenous commercial measures compared to capitalist ones in Western countries, such as wholesaling and retailing, money-lending, bills of exchange, money orders, partnerships, maritime law, etc. These practices have been so inseparably assimilated with received factors that their indigeneity cannot clearly be discerned. Other than these, the following two are seen as clearly indigenous.(1) Inkan
The popularity and seriousness of the inkan or hanko have been described. But, being most used in the commercial world, they are furnished with a specific law, although it comprises only one sentence. This is the Law for the Cases Requiring Signing, promulgated and enforced in 1900. The law reads that “kimei natsuin (showing one's name and impressing one's seal) shall replace signature even when the latter is required in the Commercial Code.” The applicability of the provision extends in actuality to all phases of civil life beyond that related to the Code. “Showing one's name” does not necessarily mean giving one's signature, except in those cases specifically requiring the written name.
Impressing a stamp of one's name is usually sufficient for many purposes. Thus one's signature may very often be replaced by impressing stamp and seal.(2) Noren
In 1962, a provision was added to the Commercial Code as Article 285–7, along with many others. This is the first appearance in the official law of the indigenous practice of noren (goodwill). Noren originally meant a sign curtain at the entrance of a shop, and after that, an intangible form of goodwill. It differs from Western goodwill in its close connection with the familial or quasi-familial ties among the sharers of the same noren. The owner of a shop with a good reputation and many regular clients may authorize some of his children or loyal apprentices to open their own shops, using the noren of his shop, and even allotting some of his clients to the new shops. Then his shop occupies the status of honten (main shop), while the authorized shops assume the status of bunten or shiten (branch shops). Such a familial or quasi-familial tie between honten and shiten is in the same vein as in the dozoku to be mentioned below. The first Commercial Code had no provision that specifically applied to the indigenous noren, assuming that the provisions of the trade name could cover it. Faced with many disputed cases, the courts established before long a precedent to protect the noren as a legal right. The supplement of an article in 1962 was specifically enacted to make explicit how to assess its economic value, assuming its legal validity. The noren in the Commercial Code is thus a limited but revived indigenous institution.