Special

Reformed Civil Code of Japan and its Problem

A sample: Rescission of Contract and Claim for Damages

for the Special Lecture on 14 March 2023 at Chulalongkorn University (on-site)

  • < File 1 > Presentation [PDF]
    • "Reformed Civi Code of Japan and Its Problem"
  • < File 2 > Lecture paper [PDF]
    • "Reformed Civi Code of Japan and Its Problem"
  • < File 3 > Materials [PDF]
    • "Recission: Its Origin and Drafting Process in German Law"
    • Updated on 25/03/2023
  • < File 4 > Comments [PDF]
    • "Memorandum about the judgment of the Supreme Court in Thailand (8818/2563)"

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Thai Solution to the Question of the Remedies for Non-performance of Obligations and the Role of the Question of the Rescission of Contract

for the Special Lecture on 25th January 2022 at Chulalongkorn University (On-line)

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Reception of the Western Legal System in Japan
(the 1870s - 1890s)
and
Its Historical Background

for the Special Lecture on 23rd March 2021 at Chulalongkorn University (On-line)

  • < Presentation file > Establishing a "Nation State" in Japan
    • This lecture intended to describe the Japanese legal history from an experimental viewpoint, which is based on the understanding of the formation of the Chinese Imperialism in 3rd Century BC as the emargence of the "Public law" concept ("Law of State") in Asia.
    • The 律令制 of the Japanese Dynasty in the 8. Century could be seen as an attempt to introduce this higly developed legal system into the Japanese society in its early days.
    • The Japanese Feudalism of the Samurai-warriors was born from the failure of the early "Public law" system of the Dynasty. The first Shogunate in the 13. Century clearly declared its own legal system as a "Private law" of the Samurai-warrior class.
    • Through the formation of the four classes in Japan, the Japanese Feudalism with its "Private law" concept dominated the country so that the "Public law" concept of the Imperial Court completely lost its meaning.
    • In the 17. Century, the Tokugawa Shogunate overcame certain feudalistic limitations and established a centralized political system, which was comparable to the European Absolutism. However, the Shogunate was bound by its "Private law" concept and failed to establish its own "Public law" or "State" concept.
    • The Meiji Restration was an attempt to return to the ancient Chinese Imperialism (the ancient "Public law" concept). The Meiji government in its initial rule did not recognized the difference between the ancient imperialism and the modern "Nation State".
    • The popular movement for freedom and democracy in the 1870s and 80s forced the government to adopt the Europian constitutional monarchy, and the codification project led by Prof. Boissonade paved the way for the introduction of the modern "Private law" concept into Japan (integration of private laws into an overall public law system).
    • However, the deep influence of the anciant Imperialism drove the Meiji government to the way of the militarism and invasion into the Asian countries.
    • On the other side, the civil law theory in Japan maintained the liberalism and individualism of the Roman law tradition, which the Japanese lawyers have learned at first from the French law and then from the German law (the Historical School of Law). This is one of the reasons why the civil law system from the Meiji Era could survive the tragedies of war in the 20. Century.
       
  • < Recorded lecture >
    • Session 1: Introduction (Video 5:25 min.)
    • Session 2: Imperial Alliance (Video 19:46 min.)
    • Session 3: Ancient Chinese Legalism (Video 10:34 min.)
    • Session 4: Ritsu-Ryo Sysem (Video 22:36 min.)
    • Session 5: Class System and Feudalism
      • Part 1: Farmer Class and Local Communities (Video 11:14 min.)
      • Part 2: Cities, Merchants and Manufacturers (Video 9:58 min.)
      • Part 3: Confucian Education and Reform Movements (Video 17:02 min.)
    • Session 6: Nation State and Modern Legalism
      • Part 1: Nation State (Video 7:52 min.)
      • Part 2: Modern Legalism (Video  10:06 min.)
    • Session 7: Modernization in Japan
      • Part 1: Criminal Code and Constitution (Video 27:44 min.)
      • Part 2: Codification of Civil Code (Video min. 32.53 min.)
    • Session 8: Epilogue
      • Historical School of Law (Video 12.45 min.)
      • Road to War (Text in PDF, Presentation in PDF)
      • Rehabilitation of Boissonade's Civil Code
        • Plan for Reform of Law on Obligations (PDF)
        • Civil Code of Cambodia of 2008 (PDF)

 

Reception of the German Law in the Thai Civil Law
through the Japanese Law

Lecture on 29th March 2019 at Chulalongkorn University

  • Presentation file
    • This lecture starts with the comparison of three different concepts of the "Remedies for non-performance of obligations"; namely the Common law, French law, and German law.
    • The first "Civil Code of Japan (1890)" stayed in the French tradition. However, its main drafter, Prof. Boissonade, adopted the German concept and declared the enforcement of specific performance as the primary remedy while the demand for damages was allowed as an alternative one.
    • The three Japanese professors in the "Code Investigation Commission" rejected this idea of Prof. Boissonade and returned to the original French concept. Moreover, they adopted certain ideas from the Common law concept and tried to define the creditor's choice more clearly than in the French law. In this way, the revised Civil Code of Japan (1896) shows the mixed concept of the Common law and French law.
    • In the revised Civil and Commercial Code for the Kingdom of Siam (1925), the drafter adopted the German provisions for the subject "Remedies for non-performance of obligations". However, he completely rearranged them in accordance of the Japanese solution (the divergence between the Thai and German laws).

    • The second part of this lecture describes the recent development in the 21th Century. The reformed German Civil Code (2001) departured from its traditional concept (the Impossibility theory) and developed its own concept which allows for the choice of remedies of the creditor. Consequently, the new German concept has moved closer to the French, Thai, and Japanese solutions (the convergence of the four laws).

  • Comparison between the old and new German provisions
  • The old German provisions (1896 - 2001)
  • The new German provisions (2002 - )
  • Overview: New concept of remedies for non-performance

 

Role of the Japanese Civil Code
in the Codification in the Kingdom of Siam

Lecture on 27th March 2018 at Chulalongkorn University

  • Presentation file
    • This lecture describes the codifcation process of the Civil and Commercial Code for the Kingdom of Siam from the final Draft of 1919 over the Codes of 1923 to the Codes of 1925.
    • The main parts of the Draft of 1919 were three Books on Obligations, Things, and Capacity of Persons. The Book on Obligations included 1,463 provisions and covered the general principles of the civil law, the general part of the obligations, and the specific types of contracts.
    • During the same period, a young law student (ปลอด วิเชียร ณ สงขลา) visited a law school in London with a mission imposed by Prince Raphi. His caretaker, Sir John Simon, gave him a strong warning against the risk of such a unique concept of the Draft and recommended him to follow the method of the Japanese Civil Code.
    • After his return from London, Phraya Man (พระยามานวราชเสวี) led the redaction work of the Code Commission and developed a two-stepps strategy. In the first step, the Books on Obligations and Capacity of Persons were rearranged and separated into three Books. The Book on General Principles and the Book on Obligations were promulgated in Nov. 1923 and the Book on Specific Contracts was enacted in Jan. 1925.
    • In the second step, the Book I and II of 1923 (Old Text) were replaced with the Book I and II of 1925 (New Text). The Book I was massively complemented with provisions from the German and Japanese Civil Codes. The Book II was completely rewritten after the German and Japanese laws.
    • In the second part of the lecture, a possible system inconsistency in the Draft of 1919 was identified, namely its concept of the remedies for non-performance of obligations. Even the German and Japanese laws have serious difficulties with this issue. In this Book II, the Thai drafter attempted to find his own answer to the question; he adopted provisions mainly from the German law, at the same time however, he radically rearranged them in accordance with the French-Japanese concept. In this way, the Thai law could avoid problems inherent in the German and Japanese concepts and paved the way to an original solution.
       

Older lectures at Chulalongkorn University

  • How did Codification Project of Civil Code in Japan Change its Model from French to German Law?
    • The lecture on 5th April 2016
    • This lecture intended to describe the background of the development of the Codification Project in Japan, especially its political motives.
    • The Meiji government started the project for the Japanese Civil Code soon after its founding (the initial stage). The French Civil Code was the only model for the project. There were two different motivations behind the project for establishing its own Civil Code; namely the concervative and prograssive cons derations.
    • However, the project failed due to the lack of knowledge and understanding regarding law on properties and obligations. The government commissioned Prof. Boissonade to draft these laws (the second stage).
    • In the 1870s and 80s, the Popular Movement for Freedom and Democracy spread nationwide, and the political tensions were intensified. The conservative members of the government gradually departed from the French law. They were strongly inspired by the rise of the German Empire at the time. Consequently, the government invited another legal adviser from Prussia and promoted the German law study.
    • When the first Civil Code of Japan was promulgated in 1890, an intensive controversy arose about the adequancy of this code. Eventually, the Parliament suspended its implementaton and decided to revise it. The Code Investigation Commission was organised for this purpose (the third stage).
    • The Commission decided to adopt the German civil law concept (the Pandectists law) and radically rearranged all the provisions of the Civil Code of 1890 in accordance with the Pandects system. The technical terms and the styles of the provisions got strongly simplified and became easier to understand.
    • However, the Commission did not create any new code. The revised Civil Code of Japan (1896/98) maintained many parts of the Civil Code of 1890 (Boissonade's heritage). The part of the remedies for non-performance of obligations is one of the important French legacies in the current Civil Code of Japan.
       
  • Reform Project of Law on Obligations in Japan (2006 ~)
    • The lecture on 5th April 2015
    • This was the second lecture about the reform project of the law on obligations in Japan and reported its final stage according to the "Tentative Outline for the Reform of Law on Obligations", which was published by the "Legislative Council of the Ministry of Justice" in Japan in Septem 2014.
       
  • [Part 1] Reform Project of Law on Obligations in Japan
    [Part 2] Codification Project of Civil Code of Japan
    • The lecture on 4th February 2014
    • The part 1 was the first lecture about the reform project of the law on obligations in Japan according to the "Basic Plans for the Reform of Law on Obligations" published by the Japanese "Civil Code (Law of Obligations) Reform Commission" in March 2009.
    • This initial plan included a proposal for a new concept of the remedies for non-performance of obligations. This proposal intended to remove the requirement of the fault (responsibility) for the liability resulted from non-performance of obligations. It was based on the concept which seeks the origin of the binding force of contract in contractual agreement between parties itself, and attemts to exclude all the non-legal elements, especially ethical bindings from legal consideration (legal liberalism).
    • The part 2 describes the historical background of the traditional concept of the remedies for non-performance, which was adopted from the French law.
    • In the initial stage of the codification project in the 1870s, the government tried to develop its own draft for the civil code. However, it completely failed to draft law on properties and obligations. In the second stage in the 1880s, the government commissioned Prof. Boissonade to draft these laws. After the promulgation of the Civil Code of Japan in 1890, a severe controversy arose against this code. In the third stage in the 1890s, the Code Investigation Commission radically revised the Civil Code of 1890 in accordance with the German Civil law.
    • However, the Commission stayed in the French concept in the part of the remedies for non-performance. This aspect could be cleraly seen in the process of formation of Article 415 (compensation for damages).
       
  • Modernization Process and Codification Project of Civil Code in Japan
    • The lecture of 11th February 2013
    • The process of the modernaization of the Japanese society in the 19. Century was not any straightforward development, but an unexpected result of a trial-and-error method. The codification project of the Civil Code was one sample of such a development.
    • All the members of the Meiji government were former Samurai-warriors and possessed no knowledge and experience in legal and business issues. In the initial stage of the project, they attemped to draft a civil code only by their own efforts. Consequently, it failed. In the second stage in the 1880s, the government commissioned Prof. Boissonade to manage the drafting work of the Civil Code of Japan, which was finally promulgated in 1890.
    • Unfortunately, this code was involved into a political controversy between the French law schools and the English law schools. Eventually, its imprementation was suspended, and the government organized the "Code Investigation Commission" for the revision of the Civil Code. In the third stage of the project, the Commission adopted the German law concept (the Historical School of Law) and radically rearranged all the provisions of the Code of 1890 in accordance with the Pandests system.
    • However, the Commission did not create any new code. The revised Civil Code of Japan (1896/98) maintained many parts of the Civil Code of 1890 (Boissonade's heritage).

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Published on  September 24th, 2023