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An Introduction to Japanese Law: The Principle Features of Japanese Law

Informacje ogólne

Kod przedmiotu: 2200-1CWPP43-ERA Kod Erasmus / ISCED: 10.0 / (0421) Prawo
Nazwa przedmiotu: An Introduction to Japanese Law: The Principle Features of Japanese Law
Jednostka: Wydział Prawa i Administracji
Grupy: Erasmus+
Punkty ECTS i inne: 4.00
Język prowadzenia: angielski
Rodzaj przedmiotu:

fakultatywne

Tryb prowadzenia:

zdalnie

Pełny opis:

Japan was the first country in Asia , which had succeeded to reform and build a modern state and society based on the western legal and social thinkings .

However,there are some differences from the Western models.. One of the characteristic features of them -- harmonious operation of law based on her traditional civilization .

In this sense some principal characters of her history, especially on Tokugawa period, pre modern history should, also be paid to attentions .

I. Modern Legal History of Japan since 1867

a) The Reception of Western Legal System since the Meiji “Restoration” of 1867

after a long isolation policy for 250 years since the 17th century.

b)Intensive Studies and Reception of European Legal Systems ;by dispatches of

Study Groups to Europe (Iwakura Mission),Reception of Western *Law and Its

Legal theories by Invitation of Western Scholars(mainly from France, later from

Germany), (Why not Britain ?)

c) The Formation of Modern law governed state ,influenced by German theory”

“Rechts staat” of the 19th century

. d)*Some discrepancies between the Five Principles of 1868 which was declared

by the first government of Meiji and the First Constitution “ Meiji Constitution

of 1889”.

e)*The Emperor System , “ Devine Tenno – Emperor” of Japan. Emperor is

superior power but not directly to govern the state .

f) The Role of Law in Socio-Economic Development ;protection of human rights

like Private Property, Freedom of Contract ,to join Corporation, and Political

Rights so on . For that purpose Codifications of Civil Law , Commercial Law,

Penal Law and the others ,which is based on European continental Legal System

like in France and Germany ,are deeply influenced on.

ll. The Establishing of Centralized Administration and school system since the 1870s

1)Liquidation of the Feudal Divisions of the territories governed by local feudal

lords,and the Formation of Modern Administrative units; Prefectures controlled

by the central government

2)Transfer of Social Elite from the Feudal “Samurai” to State Officials of the Newly established Administrative Organs through rehabilitations systems organized by state

3)The Obligatory Elementary School System( 4 years at the first, in 1872, then , 6 years, and 8 years before the War . 9 years after the Second World War.

4) The Introduction of Modern European Type of the Higher Educational Institution of State and Private Schools( Junior high school, colleges, universities by establishing nearly 100 higher educational institutions) .

lll The Formation of Big Business Groups (Zaibatsu) like Mitsui Mitsubishi ,Sumitomo, Yasuda --

1.) Is it a only way to realize the capital accumulation for the Intensive Investments at the pre-matured capitalism? Particularly in a situation where no foreign capital was permitted .

2)Tight Relationship between State and Business; under the limited free market economy ( Strong administrative leadership

IV Military Expansion Policy at the Meiji Period under strong pressure of foreign powers like Russia

l. .The Draft Act of 1873

2. The Military Expansion to Taiwan (1874)

3. The Territorial Exchange Treaty with the Imperial Russia (1875)(Kulej Islands and Sacharin)

The War with China (1894~95) some parts of China and Taiwan annexed to

Japan

Japan-Great Britain Alliance (1902~1921),for the purpose of coping with Russian Expansion .

The War with Russia (1904~1905),as the results ,Korea ,Southern part of

Sacharin(Russia),and former Russian territories of China annexed to Japan. The final Korean-Japanese treaty on annex concluded in 1910.

German territories located in China and the Pacific Ocean annexed to Japan as a

result of the First World War ,(under the League of Nations,1919)

Military involvements in Soviet Revolution (Syberia,1920~1922), then,the

recognition of USSR in1925, and Japan-Soviet treaty of neutrality(1941-1946 ?)

( Soviet Agression in 1945( Aug.9, 1945)

V The Militant Trends of State Policy and the Associated Reforms of the Socio-Economic System in the 1930’s

1. Limited market economy indirectly or directly controlled by state(Ministry of Industries and Trade

During war time Formation of big military industries=state industrial units (Land forces -100, Marine Forces – 50)

War time economic system, Administrative Control of Economy like the Soviet and Nazis Germany’s model since the 1930’s to 1945

4. The Integrated Economy between the Home Land and the colonies like Manchuria, Taiwan and Korea ..

The Japanese Colonial Policy in Taiwan Korea , Manchuria and the Expanded Area of Asia including Indonesia ,Burma,Vietnam during the Second World War(1941-1945)

Japanese colonial laws in Korea, Taiwan and Manchuria” ;

Roppou”=six codes system prevailed .

VL. A New Era since 1945(after The Second World War); Radical reforms undertaken

the Occupation period (1945-1952).

1. The Constitution of 1946

2. The Occupation Policy of the Allied Powers; ( USA)

The Debates on the Rebuilding of Japan as a Democratic State with economic scale of GDP as her 1932 ‘s year level or not. ?

At the first stage the USA officials” GHQ” ‘s idealistic Approach influenced on by the New Deal Policy of the 1930s.

The Drastic Change of US Policy due to the Hot Cold War Strategy in 1949; the

Outbreak of Korean war. Crisis of constitutional Pacifism

Japan US Mutual Security Treaty of 1951

The Peace Treaty of 1951,(San Francisco)

Vll Democratic Legal Order in Harmony with International (Western )Standard under the Occupation period ,7 years of 1945-1952 of the GHQ administration .

1. Harmonious Rules with International organs like UN, ILO--

The radical Land Reforms by the tentative nationalization of land belonged to big scaled ownership and then, distributed to landless farmers

3. The Purge of Ex political Leaders and Reform of Political System by the Strengthening of Democratic Order both in National and Local Authorities

4. The Liquidation of Zaibatsu and the Open Policy for the Stock Exchanges which is to be operated by their own autonomous rules

Vlll. The Formation of the 1955 System, after a big political debate on security treaty in 1960

1. The Most Characteristic Features of Japanese Model were practically shaped in this period

The Harmonious Relationship between Management and Trade Union in order to avoid class conflicts like Strikes of Trade Unions, and then, providing of Rational Negotiations formula between them on Wage and Working Conditions to maintain harmonious relations

3. The Political Stability by the de facto Two Party System, the ruling party, LDP and opposition , the Socialist Party.

4. The Close Relationship between the Administration and Business by Forming of “Gyouseishidou”, administrative guidance

The Favorable International Circumstances during the Cold War by The Stable Alliances with the West; Japan-USA Security Alliance since the Independence in 1952; 1952-1959,1960-1970,1971-1980,1981-1990,1991-2000,2001~

Thanks to the Constitution the military expenditure is limited by rules, one % of GDP.

The Miracle of Economic Development in the economic aspects provided by the Double Income Policy of Ikeda Cabinet in 1961

Technology Transfer and Its Research and Development both in public and private sectors encouraged by mainly Industrial Policy of the Government. On the other hand , . Competition Mechanism among Private Enterprises was functioned

lX The Negative Consequences of “the Miracle” during the 1970~1980’s

1. The Lose of the Freshness of Japanese Model instead Sweeping Conservatism both in Administration and Private Business

2. The Rigid Formalism in Decision Making Process due to the Over-commitments of Administration by Industrial policies of the government

3 The Debates on Protectionism vs Free Trade, and Liberal Economy vs Regulated Economy .

The International Pressure as a Trade War, particularly with the USA

X. The More Liberal and Open Market System after the 1990’s Crisis

1 A New Type of Economic Crisis since the beginning of the 1990’s

Introduction of Reforms for The Less Regulations and the More Liberal

and encouraging Private Activities, ” A Small Government Type ,Civil Society” policy is encouraged for policy makers . .

Heisei Reform since 1990

Drastic changes of international circumstances due to the end of Cold War

and global market system in particular rising new powers like China in Asia .

Xl The Japan Model

1. Japan Model and Its Influences on The Other Asian Countries; Taiwan, South Korea, China , Vietnam and so on.

2. The Adequate Role of Administration in Building of Stable Market Economy,for example application of “Industrial policy”,which are called ‘developmental state policy”.

Xll The Specific Character of Japanese Model ,which could be called another type

of Market Economy and consequently, Building of Harmony Orientated Society.

1. A broadly application of amicable resolution method

Most of negotiations between trade unions and employer are practiced by harmonious trade talks based on the traditional spirits not by the conventional class- conflicts theories unlike some social science theories anticipated .As the results ,seniority system concerning wage ,life time employment, management composed of internal staff,-- these are yet maintained .

Adequate Role of Administration in Economic Policy, time to time application of

industrial policy

A question of Whether this model could be called a Hybrid model or not ,by comparison with Anglo-American model or European model.?

Xlll

Japanese legal system as a legal culture.

Japan colonized Taiwan, Korea, Some parts of China, Sacharin (Karafuto) (Russia), Manchuria.

In addition, most of the South Eastern Asia including Indonesia, Malaya, Burma, Vietnam, Singapore -- were under the administration of Japan during the Second World war. Japanese ways of administration were influenced upon there.

Most obviously in the case of Taiwan, Korea and Ex Manchuria.

Literatura:

T.Suzuki, T. Karas, Japanese law (Prawo japonski) ,Liber, 2008

T. Suzuki, Konstytucja Japonii, Sejmu, 2014

Yoshiyuki Noda, Introduction to Japanese Law , Tokyo,1976

Introduction au droit japonais , Paris,1964

F.K.Upham, Law and Social Change in Postwar Japan , Harvard University Press, 1987

James C.Abegglen, The 21st Century Japanese Management; New Systems, Lasting Values ,Tokyo,2004, Nihon Keizai Shimmbunnsha

H.Oda, Japanese Law,London,1992

P.R.Luney,Jr.,K.Takahashi,(Ed),Japanese Constitutional Law,Tokyo,1993

M.Chiba, Legal Pluralism: Toward a General Theory through Japanese Legal Culture,Tokyo,1989  

H.Tanaka, The Japanese Legal System,Tokyo,1984

Efekty uczenia się:

The purpose of the course is to make students deeper knowling of Japanese law as a subject of comparative law

Metody i kryteria oceniania:

students should submit a paper originally written on selected topics

Zajęcia w cyklu "Semestr zimowy 2020/21" (w trakcie)

Okres: 2020-10-01 - 2021-01-31
Wybrany podział planu:


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Typ zajęć: Wykład specjalizacyjny, 30 godzin więcej informacji
Koordynatorzy: Teruji Suzuki
Prowadzący grup: Teruji Suzuki
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Zaliczenie: Zaliczenie na ocenę
Opisy przedmiotów w USOS i USOSweb są chronione prawem autorskim.
Właścicielem praw autorskich jest Uniwersytet Warszawski.