Legal Hitory Review vol.39 (1989)
Summaries of Articles

Legal Expenses and the Right of a Pauper to Sue in Romano-German Legal History

by Tadabumi KURODA

Many Scholars have argued about whether the low level of legal conflict in the Far East is due to its “duty-centered culture” or whether it is due to “imperfections” in Far Eastern legal institutions (such as high legal expenses). It is well known that in pre-modern Japanese courts (Bugyo-sho) citizens could use the courts without paying anything. According to recent research by T. Yoshida, the “Kuji-sen”, which was levied for only a short time during the 17th century, was aimed at punishing litigants for initiating inappropriate suits. This, however, was only a brief exception to the rule, for to impose a fee for using the courts was thought to be injurious to the traditional ideology; judgment by the courts was then regarded as an act of grace performed by the government.

In the history of European legal proceedings we see another interesting aspect which contrasts sharply with the notion of a Far Eastern legal culture. An ancient Rome the so-called “Principle of gratis action” was long applied. However, some late Roman imperial regulations allowed petty officials of the courts to impose fees (sportula). The idea of free trials, nevertheless prevailed, made possible by both by the character of Roman jurists (Weber's “Honoratioren”) and by the officials in the imperial regime.

In various courts of law in the European Middle Ages magistrates and court officials stood in need of financial payment. What is more, trying cases became a feudal privilege which brought to the legal authorities gains (Gerichtsgefälle) of all kinds. Church courts, patterned after the model provided by Roman Law, developed rational procedures, appellate systems, and the like. The Church courts were in turn followed by secular courts and the needed imposition of legal expenses (Spoltern, Gebühren, Tax). After 1495 judges in the Supreme Court of the Holy Roman Empire were salaried by a special imperial tax (Kammerzieler). Absolute monarchies tried to integrate their courts with fun salaried judges and officers under state control. The monarchies' attempts to integrate often failed, however, and thus the “ständisch-patrimonial” bureaucrats remained.

The right of a pauper to sue (Armenrecht) was first proposed by medieval Christian clerics. That right then developed into two distinct types of legal aid, free lawsuits (in Germany) and special lawyers for the poor (in Italy and France), though everywhere the right was tested by official measures designed to prevent the so-called “malicious misuse of the right”.

The old European courts demanded considerable payment, but they also provided a greater chance of dispute settlement than was the case in the Far East. In my view this occurred not only because the “rule of law” and “maintenance of justice” were, in the classic and Christian conception, tasks of every governor, but also because of the “ständisch-patrimonial” the system with “pluralistic” political and social structure, in contrast to the “patriarchal-patrimonial” system of the Far East.

Two Forms of Appointment to Office in the Officialdom System of T'ang China: With and Without the Effect of Investing with Court Rank

–Responding to Mr. Tadashi Tsukigi –

by Shuzo SHIGA

In the T'ang system, further complicated items set aside, there are two categories of governmental office:active-duty office (chih-shih-kuan) and titular office (san-kuan). In general, appointment to an office of either category implies investment with the court rank corresponding to the rank of the office. Titular office functions as a device for investing someone with a court rank without connection with his active duty.  There is also a device for appointing someone to an active duty without investing him with the corresponding court rank. Appointment to an active-duty office under the prefix hsing or shou (“temporary” appointment in Wallace Johnson's translation) is of that meaning.

Article 17 of the T'ang Code prescribes a privilege to court rank holders. When an offense committed by them deserves penal servitude or life exile, the punishment should be replaced, at a fixed rate of conversion, by canceling the culprit's court rank which emanates from the office he holds or once held. In this connection, an office to which the culprit has been appointed under the prefix hsing or shou counts for nothing because it carries no court rank.

Mr. Tadashi Tsukigi argues, in his article published in last year issue of this same annual Houseishi Kenkyu, against the above view on the meaning of hsing and shou which I have long advocated.  He tries to reinterpret Article 17 of the T'ang Code.

The present article is my response to his challenge in which I ameliorate my previous explanations and totally reject his reinterpretation of the Code.

The Actual Effects of ZURYÔ-MEI-KANTO (̖r) in each district in Latter        Medieval Japan

– Concerning the Example of BITCHO-NO-KAMI () in BITCHÛ-NO-KUNI () –

by TANAKA Osami

In recent years, one of the major concerns in the study of Medieval Japan is to make dear the peculiarity of the Medieval Japanese State. Two ruling principles of this Medieval State were: (a) feudal, based on the lord vs. vassals' relationship; and (b) bureaucratic. Interest in the bureaucratic ruling principle is becoming deeper now.

KANTO or KANDO (r) occupied the core part of this bureaucratic ruling principle. KANTO means the appointing of an official position to the SAMURAI () class mainly under the RITSURYÔ () system in the Medieval times and EDO period.

In my study, paying special attention to the titles of ZURYÔ* () among the KANTO, I try to reveal the actual effects of the KANTO by investigating the relationship between the BITCHU-NO-KAMI () and BITCHU-NO-KUNI () in the latter Medieval times**. A précis of my demonstrative investigation is as follows. (1) During the confrontation of the NANCHÔ (쒩) and HOKUCHÔ (k) with the MUROMACHI-BAKUFU ({), the side awarded the KANTO made the best use of it politically. The KOKUJIN (l) also made use of ZURYÔ-MEI-KANTO (̖r) as a means to spread their power. This means that the KANTO still had authority in the district, equivalent to the KUNI-NO-KAMI (Ŏ) during the ancient times.

(2) After the time of ÔEI (i1394-1428), KANTO became inherited rather than appointed, showing the social standing or position of the family. But in the case he (the SAMURAI) was in his district, KANTO still maintained elements of substantial authority.

(3) At the struggle between the lords or at the confrontation between the lord and vassals or to levy the land tax, the ZURYÔ-MEI-KANTO could be their legal right or their justification.

As demonstrated by my investigation above on the BITCHU-NO-KAMI, the traditional view with which we regarded KANTO during Medieval times, as being only an honorable title that did not involve actual authority, must be corrected. This misunderstanding has occurred due to the change in KANTO from a position of appointment to a position attained through inheritance.

Yet, BITCHU-NO-KUNI was still a distinctive district. It had been SUKI-NO-KUNI () from ancient times to Medieval times, and was a necessary symbolic district for the ceremony of DAIJÔE (另) to confirm the ruling justification of the TENNÔ (Vc) system. At the same time, it was the key strategical district in western Japan.

These key features in BITCHU-NO-KUNI, and the manifestation that the ZURYO-MEI-KANTO still maintained elements of substantial authority in the district, constitutes the core part of the latter Medieval State. I think this conclusion, as demonstrated by my study, depicts the essence of KANTO during the latter Medieval Japan.

* ZURYÔ () : originally equal to KOKUSHI (i), the governor of each district most of which became honorary titles after the fall of the RITSURYÔ() system or KOKUSHI (i) system.

** Latter Medieval times: The period of NANBOKUCHÔ (k), MUROMACHI () and SENGOKU (퍑), but the term discussed in my article is from 1333 to 1571.

Judicial Reform under Shinpei Eto

by Masaaki KIKUYAMA

Shinpei Eto was appointed to the Minister of Justice in April 1872, nine months after the creation of the Ministry. At the time of the appointment, he hoped to travel to Europe and the United States to study the judicial systems of Western countries. In order to establish governing machinery comparable to the Western powers and renegotiate unequal treaties between Japan and the leading Western powers, however immediate judicial reform was the urgent task for the new Meiji Government. Consequently, Eto abandoned his plan to travel abroad, and initiated ambitious reform of the antiquated judicial system. Eto as the Minister of Justice was the driving force in designing the following plans for the reform. First, transfer of judicial authority from the local magistrates to the Ministry of Justice and implementation of the new court system throughout the land. Secondly, modernization of due process, namely, (1) separation of judicial power from administrative power, (2) establishment of public prosecutor, (3) establishment of graffer and counsel, (4) adoption of appeal procedures to the higher courts, and (5) establishment of administrative jurisdiction. Thirdly, empower the Ministry to draft and review code. The majority of these reform plans were carried out.  The establishment of the new court system and judicial review, however, did not progress well because of interferences by the Ministry of Finance and Shoin. After all the Ministry of Justice established courts in only sixteen prefectures, and the powerful Shoin did not give away its authority for judicial review to the Ministry of Justice.

In May 1873, the government changed the judicial system again, which was a retreat from the reform under Eto. After the change, a Sangi from the Shoin could sit in the highest courts and intervene in court procedures. The Ministry's authority for drafting code was also deprived by the Shoin. Nevertheless, Eto's judicial design became the foundation of the judicial system for modern Japan.

Sur le bail dans le projet du code civil pour l'empire du Japon (1880)

par Shun'ichiro KOYANAGI

We could not obtained from the author
the agreement for the reprint of this summary on the web-page, sorry.

The Matrimonial Property Relations in the Process of the Japanese Civil Codification

by KONDO Kayoko

The main aim of this article is to make clear the following two points. 1: How the matrimonial property relations branched from the property relations between the head and the members of a house prior to the Civil Code. 2: How it was arranged in the course of civil codification. First: In the early years of Meiji, the whole property of a house was regarded as the property of the head of the house. So, the property of a wife was unified to the property of the head of her husband's house. But the development of merchandising demanded that property would circulate freely, and tried to rid the house-members' property from the control of the head. The members came to be permitted to have separate property. But they still had to obtain the permission of the head of their house to buy or sell their separate property: the head signed and sealed a contract jointly. This restriction prevented the free circulation of merchandise.

In 1882, the restriction was discontinued by Dajohkan (the Council of State) for all adult members of a house including women, except a wife. A wife had to obtain her husband's permission even if he was not the head of the house. Thus the matrimonial property relations branched from the property relations between the head and the members. But, before the enforcement of the Civil Code, only the notarized and inscribed property was recognized to be the members' separate property. So, the head's control over the rest of the property of a wife, as well as of the other members, still continued.

Second: In the process of the civil codification, from the beginning, a wife's property rights were controlled not by the head of her house but by her husband. It was because the Japanese civil codification began after the model of the Napoleonic Code.

The first draft of a Civil Code for Japan denied the Iye-system substantially: it admitted neither the authority of the head of a house nor the property of a house in substance. So it was criticized by the jurists who were espousing the Iye-system, and then it was revised.

The Civil Code in 1898 prescribed the Iye-system. The head of a house succeeded to the property of the house by himself/herself. But the free circulation of property was also required in order to develop capitalism in Japan, so the members of a house were allowed to have their own property, which was free from the control of the head of their house. Thus the property of a wife was also entirely free from the control of the head of her husband's house, but it was under the control of her husband. The Civil Code permitted that a woman who was the head of a house would retain the headship at her marriage. But every wife, even if she was the head of a house, had to obtain her husband's permission to carry out some juristic acts and her property was under the control of her husband. Thus the matrimonial property relations and the rights of a husband were established.

return to Contents

retun to Homepage