Law of Japan

The law of Japan refers to the legal system in Japan, which is primarily based on legal codes and statutes, with precedents also playing an important role.^[1] Japan has a civil law legal system with six legal codes, which were greatly influenced by Germany, to a lesser extent by France, and also adapted to Japanese circumstances. The Japanese Constitution enacted after World War II is the supreme law in Japan. An independent judiciary has the power to review laws and government acts for constitutionality.

Historical developments

Early Japan

The early laws of Japan are believed to have been heavily influenced by Chinese law.^[2] Little is known about Japanese law prior to the seventh century, when the Ritsuryō was developed and codified. Before Chinese characters were adopted and adapted by the Japanese, the Japanese had no known writing system with which to record their history. Chinese characters were known to the Japanese in earlier centuries, but the process of assimilation of these characters into their indigenous language system took place in the third century. This was due to the willingness of the Japanese to borrow aspects of the culture of continental civilisations, which was achieved mainly via adjacent countries such as the Korean kingdoms rather than directly from the Chinese mainland empires.^[3]

Two of the most significant systems of human philosophy and religion, Confucianism (China) and Buddhism (India), were officially transplanted in 284–285 and 522 AD respectively, and became deeply acculturated into indigenous Japanese thought and ethics.^[4] David and Zweigert and Kotz argue that the old Chinese doctrines of Confucius, which emphasize social/group/community harmony rather than individual interests, have been very influential in the Japanese society, with the consequence that individuals tend to avoid litigation in favour of compromise and conciliation.^[5] In addition, it is presently believed that various arts and techniques in many fields of production, such as agriculture, weaving, pottery, building construction, medicine and tanning, were brought to Japan by immigrants by way of the Korean peninsula. These immigrants, wherever they came from, had significant influence on the development of Japan.

It is theorized by some that the flow of immigrants was accelerated by both internal and external circumstances. The external factors were the continuing political instability and turmoil in Korea, as well as the struggle for central hegemony amongst the Chinese dynasties, kingdoms, warlords, invasions and other quarrels. These disturbances produced a large number of refugees who were exiled or forced to escape from their homelands. Immigrants to Japan may have included privileged classes, such as experienced officials and excellent technicians who were hired in the Japanese court, and were included in the official rank system which had been introduced by the immigrants themselves. It is conceivable – but unknown – that other legal institutions were also introduced, although partially rather than systematically, and this was probably the first transplantation of foreign law to Japan.^[6]

During these periods, Japanese law was unwritten and immature, and thus was far from comprising any official legal system. Nonetheless, Japanese society could not have functioned without some sort of law, however unofficial. Glimpses of the law regulating people's social lives may be guessed at by considering the few contemporary general descriptions in Chinese historical books. The most noted of these is The Record on the Men of Wa, which was found in the Wei History, describing the Japanese state called Yamatai (or Yamato) ruled by the Queen Himiko in the second and third centuries. According to this account, Japanese indigenous law was based on the clan system, with each clan forming a collective unit of Japanese society. A clan comprised extended families and was controlled by its chief, who protected the rights of the members and enforced their duties with occasional punishments for crimes. The law of the court organised the clan chiefs into an effective power structure, in order to control the whole of society through the clan system. The form of these laws is not clearly known, but they may be characterised as indigenous and unofficial, as official power can rarely be identified.^[7]

In this period, a more powerful polity and a more developed legal system than the unofficial clan law of the struggling clan chiefs was required effectively to govern the society as a whole. Yamatai must have been the first central government which succeeded in securing the required power through the leadership of Queen Himiko, who was reputed to be a shaman. This leads to the assertion that Yamatai had its own primitive system of law, perhaps court law, which enabled it to maintain government over competing clan laws. As a result, the whole legal system formed a primitive legal pluralism of court law and clan law. It can also be asserted that this whole legal system was ideologically founded on the indigenous postulate which adhered to the shamanistic religio-political belief in polytheistic gods and which was called kami^[8] and later developed into Shintoism.^[9]

Two qualifications can be added to these assertions. First, some Korean law must have been transplanted, albeit unsystematically; this can be seen by the rank system in court law and the local customs among settled immigrants. Second, official law was not clearly distinguished from unofficial law; this was due to the lack of written formalities, although court law was gradually emerging into a formal state law as far as central government was concerned. For these reasons, it cannot be denied that a primitive legal pluralism had developed based on court and clan law, partially with Korean law and overwhelmingly with indigenous law. These traits of legal pluralism, however primitive, were the prototype of the Japanese legal system which developed in later periods into more organised legal pluralisms.

Ritsuryō system

In 604, Prince Shotoku established the Seventeenth-article Constitution, which differed from modern constitutions in that it was also moral code for the bureaucracy and aristocracy. While it was influenced by Buddhism, it also showed a desire to establish a political system centered on the emperor, with the help of a coalition of noble families. Nevertheless, there are doubts that the document was fabricated later.

Japan began to dispatch envoys to China's Sui Dynasty in 607. Later, in 630, the first Japanese envoy to the Tang Dynasty was dispatched. The envoys learned of Tang Dynasty's laws, as a mechanism to support China's centralized state. Based on the Tang code, various systems of law, known as the Ritsuryō (律令), were enacted in Japan, especially during the Taika Reform.^[10] Ritsu (律) is the equivalent of today's criminal law, while ryō (令) provides for administrative organization, taxation, and corvée (the people's labor obligations), similar to today's administrative law. Other provisions correspond to modern family law and procedural law. Ritsuryō was strongly influenced by Confucian ethics. Unlike Roman law, there was no concept of private law and there was no direct mentioning of contracts and other private law concepts.

One major reform on the law was the Taihō (Great Law) Code, promulgated in 702.^[10] Within the central government, the law codes established offices of the Daijō daijin (chancellor), who presided over the Dajōkan (Grand Council of State), which included the Minister of the Left, the Minister of the Right, eight central government ministries, and a prestigious Ministry of Deities.^[10] These ritsuryō positions would be mostly preserved until the Meiji Restoration, although substantive power would for a long time fall to the bakufu (shogunate) established by the samurai.^[10] Locally, Japan was reorganized into 66 imperial provinces and 592 counties, with appointed governors.^[10]

Laws under the shogunates

Beginning in the 9th century, the Ritsuryo system began to break down. As the power of the manor lords (荘園領主) grew stronger, the manor lords' estate laws (honjohō 本所法) began to develop. Furthermore, as the power of the samurai rose, samurai laws (武家法 bukehō) came to be established. In the early Kamakura period, the power of the imperial court in Kyoto remained strong, and a dual legal order existed with samurai laws and Kuge laws (公家法 kugehō), the latter having developed on the basis of old Ritsuryo laws.

In 1232, Hojo Yasutoki of the Kamakura Shogunate established the Goseibai Shikimoku, a body of samurai laws consisting of precedents, reasons and customs in samurai society from the time of Minamoto no Yoritomo, and which clarified the standards for judging the settlement of disputes between gokenin and between gokenin and manor lords. It was the first systematic code for the samurai class. Later, the Ashikaga shogunate more or less adopted the Goseibai Shikimoku as well.

In the Sengoku period (1467–1615), the daimyos developed feudal laws (bunkokuhō 分国法) in order to establish order in their respective territories. Most such laws sought to improve the military and economic power of the warring lords, including instituting the rakuichi rakuza (楽市・楽座) policy, which dissolved guilds and allowed some free marketplaces,^[11] and the principle of kenka ryōseibai (喧嘩両成敗), which punished both sides involved in brawls.^[12]

In the Edo period (1603–1868), the Tokugawa shogunate established the bakuhan taisei (幕藩体制), a feudal political system.^[13] The shogunate also promulgated laws and collection of precedents, such as the Laws for the Military Houses (武家諸法度 Buke shohatto) and the Kujikata Osadamegaki (公事方御定書).^[14] It also issued the Laws for the Imperial and Court Officials (禁中並公家諸法度 kinchū narabini kuge shohatto), which set out the relationship between the shogunate, the imperial family and the kuge,^[15] and the Laws on Religious Establishments (寺院諸法度 jiin shohatto).^[13]

The Code of One Hundred Articles (御定書百箇条 osadamegaki hyakkajyō) was part of the Kujikata Osadamegaki. It consisted of mostly criminal laws and precedents, and was compiled and issued in 1742, under the eighth Tokugawa shogun, Yoshimune.^[16] Crimes punished include forgery, harboring runaway servants, abandonment of infants, adultery, gambling, theft, receiving stolen goods, kidnapping, blackmailing, arson, killing and wounding.^[16] Punishment ranged from banishment to various forms of execution, the most lenient of which is decapitation; others include burning at the stake and public sawing before execution.^[16] The justice system often employed torture as a means to obtain a confession, which was required for executions.^[10] Punishment was often extended to the culprit's family as well as the culprit.^[10]

Justice in the Edo period was very much based on one's status.^[10] Following neo-Confucian ideas, the populace was divided into classes, with the samurai on top.^[10] Central power was exercised to various degrees by the shogun and shogunate officials, who were appointed from the daimyo,^[10] similar to the Curia Regis of medieval England.^[16] Certain conducts of daimyos and the samurai were subject to the shogunate's laws, and shogunate administrative officials would perform judicial functions.^[10] Daimyos had considerable autonomy within their domains (han) and issued their own edicts. Daimyos and the samurai also exercised considerable arbitrary power over other classes, such as peasants or the chōnin (townspeople).^[10] For example, a samurai is permitted to summarily execute petty townspeople or peasants if they behaved rudely towards him, although such executions were rarely carried out.^[10] Because official treatment was often harsh, villages (mura) and the chōnin often resolved disputes internally, based on written or unwritten codes and customs.^[10]

Modern developments and Japanese law today

Legal reforms after the Meiji Restoration

Major reforms in Japanese law took place with the fall of the Tokugawa Shogunate and the Meiji Restoration in the late 1800s.^[17] At the beginning of the Meiji Era (1868–1912), the Japanese populace and politicians quickly accepted the need to import western legal system as part of the modernization effort, leading to a rather smooth transition in law.^[17] Under the influence of western ideas, the Emperor proclaimed in 1881 that a Nation Diet (parliament) would be established, and the first Japanese Constitution (Meiji Constitution) was ‘granted’ to the subjects by the Emperor in 1889.^[17]^[18] Japan's Meiji Constitution emulated the German constitution with broad imperial powers; British and French systems were considered but were abandoned because they were seen as too liberal and democratic.^[17] Elections took place for the lower house, with voters consisting of males paying a certain amount of tax, about 1% of the population.^[19]

Meiji Constitution promulgation by Toyohara Chikanobu

With a new government and a new constitution, Japan began to systematically reforming its legal system.^[17] Reformers had two goals in mind: first, to consolidate power under the new imperial government; second, to "modernize" the legal system and establish enough credibility to abolish unequal treaties signed with western governments.^[17]

The early modernization of Japanese law was primarily based on European civil law systems and, to a lesser extent, English and American common law elements.^[20] Chinese-style criminal codes (Ming and Qing codes) and past Japanese codes (Ritsuryo) were initially considered as models but abandoned.^[17] European legal systems – especially German and French civil law – were the primary models for the Japanese legal system, although they were often substantially modified before adoption.^[21] Court cases and subsequent revisions of the code also lessened the friction between the new laws and established social practice.^[17] The draft Bürgerliches Gesetzbuch (German civil code) served as the model for the Japanese Civil Code.^[17] For this reason, scholars have argued that the Japanese legal system is a descendant of the Romano-Germanic civil law legal system.^[22]^[21]

Laws on censorship and laws aimed to control political and labor movements were enacted in the Meiji era, curtailing the freedom of association.^[17] By the 1920s, laws were amended so that leaders of organizations that advocated for Marxism or changing the imperial structure could be put to death.^[17]

In the 1910s, a movement for more democracy developed and there were several cabinet supported by elected political parties.^[17] Before this, the genrō (leaders of the Meiji Restoration) would privately confer and recommend Prime Minister candidates and cabinet members to the Emperor.^[19] Reforms in this period include the General Election Law, which abolished property qualifications and allowed almost all men over age 25 to vote for members of the House of Representatives (the lower house), although the House of Peers was still controlled by the aristocracy.^[17]^[23] Voting rights was never extended to the colonies, like Korea, although colonial subjects who moved to Japan could vote after the 1925 reforms.^[24]

However, cabinets based on party politics were powerless against growing interference by the Japanese military.^[17] The army and navy had seats in the cabinet, and their refusal to serve in a cabinet would force its dissolution.^[25] A series of rebellions and coups weakened the Diet, leading to military rule by 1936.^[17]

During the Japanese invasion of China and the Pacific War, Japan was turned into a totalitarian state, which continued until Japan's defeat at 1945.^[17]

Japanese law post-World War II

After the Second World War, Allied military forces (overwhelmingly American) supervised and controlled the Japanese government.^[17] Japanese law underwent major reform under the guidance and direction of Occupation authorities.^[17] American law was the strongest influence, at times replacing and at times overlaid onto existing rules and structures. The Constitution, criminal procedure, and labor law, all crucial for the protection of human rights, and corporate law, were substantially revised.^[26] Major reforms on gender equality, education, democratization, economic reform and land reform were introduced.^[17]

The post war Japanese Constitution proclaimed that sovereignty rested with the people, deprived the Emperor of political powers, and strengthened the powers of the Diet, which is to be elected by universal suffrage.^[17] The Constitution also renounced war, introduced a Bill of Rights, and authorized judicial review.^[17] On gender equality, women were enfranchised for the first time in the 1946 election, and the Civil Code provisions on family law and succession were systematically revised.^[17] Laws also legalized labor unions, reformed the education system, and dissolved business conglomerates (Zaibatsu). Capital punishment was kept as a punishment for certain serious crimes. However, Japan retained its civil law legal system and did not adopt an American common law legal system.^[17]

Therefore, the Japanese legal system today is essentially a hybrid of civilian and common law structures, with strong underlying "flavors" from indigenous Japanese and Chinese characteristics.^[27] While historical aspects remain active in the present, Japanese law also represents a dynamic system that has undergone major reforms and changes in the past two decades as well.^[28]

Sources of law

The Constitution

The present national authorities and legal system are constituted upon the adoption of the Constitution of Japan in 1947. The Constitution contains thirty-three articles relating to human rights and articles providing for the separation of powers vested into three independent bodies: the Legislature, Executive and Judiciary.^[29] Laws, ordinances and government acts that violate the Constitution do not have legal effect, and courts are authorized to judicially review acts for conformity with the constitution.^[1]

The National Diet is the bicameral supreme legislative body of Japan, consisting of the House of Councillors (upper house) and House of Representatives (lower house). Article 41 of the Constitution provides that "the Diet shall be the highest organ of State power, and shall be the sole law-making organ of the State." Statutory law originates from the National Diet, with the approval of the Emperor as a formality. Under the current constitution, unlike the Meiji Constitution, the Emperor does not have the power to veto or otherwise refuse to approve a law passed by the Diet, or exercise emergency powers.^[30]^[1]

The Six Codes in modern Japanese law

The modernization of Japanese law by transplanting law from Western countries began after the Meiji Restoration in 1868, in which the Japanese Emperor was officially restored to political power.^[31] Japanese law is primarily inspired by the Civilian system in continental Europe, which emphasizes codified statutes ("codes") that set out the basic legal framework in a particular area of law.^[1]

The first major legislation enacted in Japan was the Criminal Code of 1880, followed by the Constitution of the Empire of Japan in 1889,^[32] the Commercial Code, Criminal Procedure Act and Civil Procedure Act in 1890 and the Civil Code in 1896 and 1898.^[31] These were called the roppo (six codes) and the term began to be used to mean the whole of Japan's statute law.^[31] The roppo thus included administrative law of both central and local government and international law in the treaties and agreements of the new government under the emperor^[31] (in addition to former agreements with the United States and other countries, which had been entered into by the Tokugawa Shogunate).^[33]

The Six Codes are now:

The Civil Code (民法 Minpō, 1896)
The Commercial Code (商法 Shōhō, 1899)
The Criminal Code (刑法 Keihō, 1907)
The Constitution of Japan (日本国憲法 Nippon-koku-kenpō, 1946)
The Code of Criminal Procedure (刑事訴訟法 Keiji-soshō-hō, 1948)
The Code of Civil Procedure (民事訴訟法 Minji-soshō-hō, 1996)

The Civil Code, Commercial Code and the Criminal Code were enacted in the late nineteenth or early twentieth century.^[1] Parts of the Civil Code on family and inheritance were totally amended after World War II to achieve gender equality.^[1] Other codes were also periodically amended. For example, company law was separated from the Civil Code in 2005.^[1] The Japanese Civil Code has had a significant role in the development of civil law in several East Asian nations including South Korea and the Republic of China (Taiwan).

Other sources of law

Statutes

In addition to the six codes, there are individual statutes on more specific matters which are not codified.^[1] For example, in the area of administrative law, there isn't a comprehensive administrative code.^[1] Instead, individual statutes such as the Cabinet Law, the Law on Administrative Litigation, the Law on Compensation by the State, City Planning Law, and other statutes all concern administrative law.^[1] Similarly, in the domain of labor and employment law, there are statutes such as the Labor Standards Law, the Trade Union Law, the Law on the Adjustment of Labor Relations, and the newly enacted Labor Contract Law.^[1] Other important statutes include the Banking Law, the Financial Instruments and Exchange Law, the Anti-Monopoly Law (competition law), the Patent Law, Copyright Law, and the Trademark Law.^[1]

In general, provisions of a specialized law take precedence over a more general law if there is a conflict.^[1] Thus, when provisions of the Civil Code and the Commercial Code both apply to a situation, the latter takes priority.^[1] Zdroj:https://en.wikipedia.org?pojem=Law_of_Japan
Text je dostupný za podmienok Creative Commons Attribution/Share-Alike License 3.0 Unported; prípadne za ďalších podmienok. Podrobnejšie informácie nájdete na stránke Podmienky použitia.

Navigácia: Veda >

Analytika
Antropológia
Aplikované vedy
Bibliometria
Dejiny vedy
Encyklopédie
Filozofia vedy
Forenzné vedy
Humanitné vedy
Knižničná veda
Kryogenika
Kryptológia
Kulturológia
Literárna veda
Medzidisciplinárne oblasti
Metódy kvantitatívnej analýzy
Metavedy
Metodika

Metodológia vedy
Náboženstvo a veda
Náučná literatúra
Podvody vo vede
Popularizácia vedy
Potravinárstvo
Prírodné vedy
Pseudoveda
Scientometria
Spoločenské vedy
Teórie
Teatrológia
Technické vedy
Technika
Terminológia
Umenie
Výskum

Veda
Veda a technika podľa štátu
Veda a technika podľa kontinentu
Veda a technika podľa roka
Veda v kozme
Vedci
Vedecká literatúra
Vedecké databázy
Vedecké experimenty
Vedecké konferencie
Vedecké metódy
Vedecké ocenenia
Vedecké organizácie
Vedecké parky
Vedeckí spisovatelia
Vzdelávanie
Záhady

Príbuzné výrazy:

Text je dostupný za podmienok Creative Commons Attribution/Share-Alike License 3.0 Unported; prípadne za ďalších podmienok.
Podrobnejšie informácie nájdete na stránke Podmienky použitia.

[1]

[2]

[3]

[4]

[5]

[6]

[7]

[8]

[9]

[10]

[11]

[12]

[13]

[14]

[15]

[16]

[17]

[18]

[19]

[20]

[21]

[22]

[23]

[24]

[25]

[26]

[27]

[28]

[29]

[30]

[31]

[32]

[33]