Legal Hitory Review vol.59 (2009)
Summaries of Articles

The legal reformation by Emperor Wen-di 文帝 of the Three Kingdoms Wei 魏dynasty and the suppression of the crime of Yao-yan 妖言:
The watershed of the development of anti-rebellion law in the ancient China
by Hiroshi ISHIOKA
key words : Records of Three Kingdoms, slander, suspicious statement, Cao-pi, Gao-rou
        This article investigates the meaning of the crime of slander, Feibang 誹謗 and the crime of suspicious statement, Yao-yan 妖言 in the ancient China and considers the purpose of the revision of Yao-bangshang-gao 妖謗賞告 law by Wen-di 文帝(Cao-pi 曹丕)of the Three Kingdoms Wei dynasty (220-265).
        The last emperor Xian-di 献帝 of the Latter Han 後漢 dynasty(25-220)was forced to abdicated by Cao-pi 曹丕. So the Latter Han wasended and Cao-pi was proclaimed Emperor of Wei in 220.
        After his enthronement, there rose many groundless rumors, Yao-yan and Fei-bang criticizing him among the people. Wen-di put these rumor speakers to death immediately, and made the law to award these accusers a prize. But his high official Gao-rou 高柔 advised Wen-di to abolish this new law, because he thought it necessary to listen to the remonstration from the old Latter Han officials, and to exclude the vicious Wei officials who intentionally did the false charge.
        Following to the Gao-rou’s advice, Wen-di abolished the articles of the law that encouraged the accusation of Fei-bang. However he never abolished the articles to encourage the accusation of Yao-yan, because he thought that Yao-yan had a tendency to inspire many people to defeat the dynasty or to change the Emperor, and was equal to the rebellion against the dynasty. His such measures against Yao-yan had the roots in the history of the preceding dynasties.
        From Emperor Wang-mang 王莽, the founder of the short-lived dynasty Xin 新 (8-23) and Guang-wu-di 光武帝, the first Emperor of the Latter Han dynasty ascended each throne on the ground of the apocryphal texts Chen-wei-shuo 讖緯説, one of divination theory in ancient China, Chen-wei-shuo theory became the most important ground to justify the throne. In Latter Han dynasty, several merquises Zhu-hou-wang 諸侯王 who wanted to deprive the throne, sometimes used this theory to criticize the Emperor and justfy their succession to the throne. Therefore the Latter Han Emperors regarded their criticism using this theory as the suspicious statements, Yao-yan and became to punish severely such speakers on the Great Refractoriness Da-ni 大逆.
        Because Wen-di also ascended his throne on the authority of Chen-wei -shuo, he hated the old Latter Han officials who said that another Zhuhou-wang(Cao-zhi 曹植)should succeed to the Emperor on the ground of the same Chen-wei-shuo. So Wen-di adopted three policies to exclude a possibility to usurp the throne ; the prohibition from putting Zhu-houwang forward as the Emperor by Yao-yan, the encouragement to accuse the rebellion, and the prohibition consort clans(waiqi 外戚)to participate in the government.
        These policies were succeeded to the law in the Wei Jin 魏晋 period. The revision Yao-bang-shang-gao law by Wen-di was the watershed of the early development of anti-rebellion law in the ancient China.

Basic consideration of regulation and the development of a common sense of the law enacted to Japanese ancient times, to provide for the deities and the festa. ― From the deities law of the 8th century (大宝神祇令)to the detailed rule of the 9th century (延喜神祇式)―
by Hiroyuki EMURA
key words : Restriction of royal prerogative festa, Definition of the deities related to royal prerogative, Deities law (Jingi-Ryu), Deities detail rules(Jingi-Shiki),, Isejingu Grand Shrine(Ise-Jingu), Imperial princess who is a single royalty woman serving Ise-jingu Grand Shrine(Saio)
        This report is about deities religious service law in the initial stage of the ancient Japanese nation which was ruled by imitated Chinese Codes (律令).
        The main consideration is about the receipt of the effect of the law on the society and the law in the society.
        The national religious service was important "politics" in the national formation process not manners and customs. As the religious service was the basic consciousness to maintain a system of the tax in the latter period in the seventh century.but on the other hand the nationwide control was non-formation.
        "The deities law" among "the Taiho Codes(大宝律令)"and "the Yoro Codes(養老律令)"they are the Japan's first and second general codes, has the side to let change "religious service as the custom" to "ideology control".This law is a law of showing the conversion of the civilized society from the uncivilized society to which the festa restricts the society from which the society restricts the festa.
        However, the content was extremely insufficient.
        A purpose of the deities law is to extract Gods called "deities of heaven and earth(天神地祇)" from various Gods. These special Gods are effective to confirm Emperor-centered national rule", and the base ideology is considered to have been the attendants of the Sun-Goddess advent and the native Gods who accepted the Sun-Goddess advent. Whereas ancient "festa law(祠令)" in Tang Dynasty, superior example of Japanese Deities law, is conscious of the rule of all the Chinese traditional religious service, Japanese Deities low was laws to manage various festas, and to arrange it under one public office. The definition of Gods was important method for it.
        However, the god's definition had only given some examples in "The national annotation book for the Codes(令義解)". The annotation with trifling other parts is only done. It doesn’t discuss it what law this law is. Neither the idea nor the effectiveness of the law are completely considered. This was the actual situation of the understanding of the legal codes method of the first half in the ninth century.
        It is possible to look to law "Engi-Jingi-Siki(延喜神祇式)" compiled in the tenth century for the large conversion of consideration that supports the deities law. It can know a lot of efforts to suit the society in Japan the deities law(like Chinese festa laws)from "Engi-Jingi-Siki". Because "Siki(式)" is the detailed rule to put a law in force, and "Engi -Jingi-Siki" is a collection of the detailed rule that relates to the Gods, deities, and festa. For example, in Ise Grand Shrine which is the symbol of the national religious service, the national control is intensified in the last of the eighth century by the political reform.
        And the Jingisiki is written under this political consciousness,and so positioning of Ise Grand Shrine becomes clear. In addition, the Saio, Imperial princess who is a single royalty woman serving Ise-jingu Grand Shrine was not defined in deities law, but that it is put by an order of the Emperor is specified with the Jingi-Siki.
        "Jingi-Siki,deities detailed rules" is different from the "deities law" which were only an office work rule assuming the existence of the Emperor religious service.
        "Deities detailed rules" is the law that steps into the contents of the emperor's sovereignty religious service and ruled it. That is particularly epoch-making to regulate the religious service whole by law.
        The national religious service system systematized under responsibility of the Emperor by "deities detailed rules" was established. In other words the directionality of the national religious service finally linked the local gods consciousness who settled in the area, and it was effective for the making of the consciousness of Japanese traditional deities.
        It means that "governance of the idea" called "the deities law" switched to "administrative law with the effect" of "deities detailed rules" in 9th and 10th century.

A study concerning the formation of "judiciary"(Shiho) at the beginning of the Meiji era: Shinpei ETO's plans of Shihodai and various elements for discussion that are seen its foundation
by Ryosuke YAMAGUCHI
key words : judiciary, the division of the three powers, Shinpei ETO, formation of systems, source
        When the process of the establishment of the Department of Justice (Shihosho)in July, 1871 was researched, the previous work chiefly paid attention only to Shinpei ETO's institutional reform plan. This research sporadically studied ETO’s plan of "judiciary" paying attention to each element, and it analyzed in the context of the governmental process.
        However, in the current study, I try to evaluate ETO's plan from the following viewpoints. That is, how could what is called "judiciary"(Shiho) which did not exist in that time before based on a clear plan and the system be understood? For this, I examined the process of the development of ETO’s plan until the establishment of the Department of Justice in time series. In addition, I studied the texts that relates the plan, and studied information on the laws and the system that form the background of the plan.
        Liberally interpreted, there were three stages when "judiciary" was assumed to be a problem when seeing ETO's plan from such a viewpoint.
        During the first stage, the idea of "judiciary" is analyzed as one part of "the three powers of government". In the second stage, Shihodai and courts are built in as an organization corresponding to the idea of "judiciary", at the same time, the installation of a lower courts is planned to local various authorities. And in the third stage, based on the former stages, it is finally settled to a form near the framework of the present "Gyobusho". When the above-mentioned plans were carried out, we can recognize that reference has been made to texts on Dutch law in which one can detect more concretely the contents of the three powers of government, including the "Shiho no ken" the existed in the government system. Furthermore, there was a background in which knowledge of a present government organization that originated in the Ritsuryo-Daijokan system,
        Thus, the plans and concepts of "judiciary" at that time had a heavily layered knowledge structure. It is formed based on understanding of an existing organization, and formed while referring to various texts.

Public Utility Regulation in the Modern Japan ― An Analysis Based on Gas Hosho Contracts between Municipality and Business Operators
key words : Public Utility, Gas Business, Hosho Contract, Municipality, Special Tax, Road Act
        In this paper I aim to make clear the legal historical consequence and context of gas hosho contracts in public services in the modern Japan.
        "Hosho contract" was a kind of the bilateral contracts, and it means that a municipality permitted a business operator to use structures administrated by the municipality and the business operator paid money in exchange for this permission. Commonly, it involved privileges of permission of monopoly and duties that the business operator was under the supervision of the municipality. In fact, there were public utility regulations by municipalities.
        The preceding studies dealt with the the hosho contract between Osaka City and Osaka Gas Company, which was the first of these contracts, but it remains to present a overview of them. In contrast, this paper researches the process of the conclusion and the operation of the contract between Tokyo City and Tokyo Gas Company, then, in result, it makes clear the things below.
        The main motive of these contracts was a substitution of publicly owned and operated services, which the preceding studies pointed out. But there was the notice of Minister of Finance, which ordered to substitute hosho contracts for special tax treatments. This was the measure that municipalities were able to attain financial flexibility to use the form of the contracts. And, it emphasized the aspect of public utility regulations of hosho contracts to justify concluding them in the cases of Tokyo Gas Co. and Osaka Gas Co.. It was necessary that public interest was emphasized in order to make the contract if the undertaking was under the monopolistic situation, for hosho contracts were under the agreement of either party.
        While Gas Business Act was not established, gas hosho contracts which was tranitive and substitutive worked effectively because they had the factors above all. Their legal ambiguity was utilized expediently. But this could turn into their legal instability, so that it connected to establish the Gas Business Act of 1923.

Reconsidering the concept of complicity in the Tang-code ; From a continental to an anglo-american law perspective
by Arnd Helmut Hafner(Ando SUEYASU)
key words : Complicity, Accessory, comparative law, Tang-code, formulating the plan, Erweiterter Taterschaftsbegriff
        The famous controversy on complicity in the Tang-code between the late Dai Yanhui and the late Shiga Shuzo was shadowed by the continental law concept of "Erweiterter Taterschaftsbegriff". Both of the legendary masters of Chinese Legal History endeavored to establish a general concept of complicity in which perpetration, abetment and instigation of crime could be equally integrated. The most disputed point was how instigation could be included. Whereas Dai Yanhui understood instigation as a special subcategory of complicity and claimed the existence of a general rule stipulating the punishment of instigation in the Tang-code, made Shiga Shuzo the assertion that instigation has been embraced chiefly within ordinary complicity, which is defined as "collectively committing crime" in the Tang-code.
        After careful scrutiny of related articles in the Tang-code and paleographic legal sources of the Qin and Han dynasties, this article reaches the conclusion that complicity in Chinese Law, i.e. the concept of "collectively committing crime", points only at persons directly involved in the perpetration of the crime. It is this group of perpetrators which are in the Tang-code divided into the person who "formulates the plan(zao -yi 造意)" and "persons following(sui-cong 随從)". Accessory before or after the fact, or some kind of conspiracy etc., in other words involvement in criminal acts without participation in perpetration is not embraced in ordinary complicity. This kind of indirect involvement is subject to punishment by extraordinary statutes for particular offences which hardly can be unified under one comprehensive general rule.
        Apparently, the Chinese concept of complicity bears high resemblance to the anglo-american concept. In the center stands a group of persons who "collectively commit(or perpetrate)crime", namely the principals. This group can be further subdivided into two groups by the degree or form of contribution to the perpetration of crime, i.e. "principal(s) in the first degree" and "principal(s) in the second degree" in the anglo-american tradition and the person who "formulates the plan(zaoyi 造意)" and "persons following(sui-cong 随從)" in the Chinese tradition. Around this core are collocated different groups of accessories, which are all subject to extraordinary statutes or legal principles independent from those ruling the punishment of principals. The surprising affinity between these two independent legal traditions could be ascribed to more or less universal features in legal experience with collective crime which in the continental tradition have been concealed by an excessive inclination to abstract conceptualizations, of which the concept of "Erweiterter Taterschaftsbegriff" and therewith the endeavor to comprehend different forms of collective participation in crime under one single analytical scheme can be considered typical examples.

Judges and Judging in England, 1176-1307
by P. A. Brand(trans. Shinichi NAOE)
key words : common law, royal courts, royal judges, jury trial, legal profession
        The emergence of the English national Common Law in the later twelfth and thirteenth centuries is closely connected with the creation during the same period of a series of royal courts of a wholly new type with various distinctive characteristics. These included their being run by justices who were appointed by the king and had the power to make judgments in their courts and were engaged for much of the year in judicial activity. This paper looks at some aspects of the functioning of judges in these new royal courts during this period. It discusses some of the evidential problems associated with tracking the presence or absence of individual justices in the courts to which they had been appointed. By the later thirteenth century most proof took the form of jury trial and the justices played an important role in the preliminary charging of the jury by instructing them on what they needed to consider in reaching their verdicts, and also through interrogation of juries when they delivered their verdicts. A single justice seems invariably to have given final judgments on behalf of the court, but it is not clear how often this was preceded by informal consultation with colleagues. Court proceedings took place in insular French, probably from the time of the creation of the new royal courts, but were recorded in Latin on separate plea rolls made for each of the justices of the court. The paper also briefly considers the role of justices in the peaceful settlement of disputes, their role in legal education and the part they played in the making of legislation.

EU-Erweiterung und die europäische Stadtrechtsforschung am Beispiel der Erforschung des sächsisch-magdeburgischen Rechts
by Dan SATOH
key words :Mittelalterliches Stadtrecht, Magdeburger Stadtrecht, Sachsenspiegel, sächsisch-magdeburgisches Recht, Mittel-und Osteuropa.
        Im vorliegenden Aufsatz werden aktuelle Forschungstrends im Bereich des Magdeburger Stadtrechtes vorgestellt, welches in den letzten Jahren in Deutschland sowie den mittel-und osteuropäischen Ländern sehr großes Interesse weckt. Zuerst wird der Grundriss dieses Rechts dargelegt, dann auf den bisherigen Forschungen beruhend nachvollzogen, wie dieses Stadtrecht zu den mittel-und osteuropäischen Ländern in Beziehung trat. Danach wird ein kleiner Überblick über die Forschungsgeschichte gegeben. Dabei liegt der Schwerpunkt in der deutsch-polnischen wissenschaftlichen Beziehung, weil die Gegenden, welche bei der Verbreitung dieses Rechtes eine große Rolle spielten, im heutigen Polen befindlich sind.
        Wenn man in der Forschungsgeschichte zurückblickt, kann man den Zeitraum zwischen dem Ende des Ersten und dem Ende des Zweiten Weltkrieges als ersten Höhepunkt betrachten. Nach dieser Zeit wird die Forschung dieses Rechts in den Ländern des ehemaligen Magdeburger Rechtskreises einzeln betrieben; ein wissenschaftlicher Dialog fand zwischen den Ländern kaum statt. In den siebziger Jahren wurde der Weg für Dialoge wieder eröffnet, und anlässlich der Wiedervereinigung Deutschlands intensiviert sich die Forschungstätigkeit in Deutschland wieder. Die Erweiterung der EU 2004 beschleunigte diese Tendenz weiter.
        Heutzutage wird das Magdeburger Recht in den betreffenden Ländern erforscht. Die interdisziplinäre Kooperation mit den benachbarten Fächern wie den Historischen Hilfswissenschaften oder der Philologie erweitert die Quellenbasis erheblich. Sie erlaubt nunmehr die Vertiefung der Forschungen. Diese Tendenz bleibt wohl auch zukünftig bestehen.