Legal Hitory Review vol.40 (1990)
Summaries of Articles
 


Kuga Katsunan (1857–1907)

– His Works on Local Autonomy and Notables –

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The Criminal Laws and Systems of Wakamatsu-Ken in the early Meiji Period

by YAMADA Tsutomu

Wakamatsu-Ken was established 1869 in the place of Aizu-Han, which was regarded as a principal rebel against the Mikado-government after the collapse of Shogun-government. Therefore the organization of Wakamatsu-Ken was formed without taking over that of Aizu-Han.

In Wakamatsu-Ken, much reliance could not be placed on its criminal investigation section because of corrupt practices. Trial and investigation that had been confused since former period began to be separated in consequence.

The criminal procedure of Wakamatsu-Ken was fundamentally similar to that of Shogun-government. But some changes were effected in jurisdiction. Ministry of Criminal Affairs had jurisdiction of grave crimes, and changed the Principle of jurisdiction among local governments (Fu, Han, Ken) from personal to territorial one. In each local government, however, various principles of jurisdiction were adopted. Wakamatsu-Ken also adopted personal and territorial principles concurrently.

It was Karikeiritsu that was one of the characteristic sources of criminal law in Wakamatsu-Ken. Karikeiritsu was the criminal code which was established as a rule within Ministry of Criminal Affairs. It was unexampled that a local government adopted Karikeiritsu.

The criminal laws and systems of Wakamatsu-Ken were formed not only under the direct control of Mikado-government, but also under its autonomous control.


A drastic anti-Christian policy and a discriminated group (Kawata-machi people) at Nagasaki in 1587 – 1648

by Arikazu FUJIWARA

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The sources of the law in the People's Republic of China

by TAKAMIZAWA Osamu

What can exactly be recognized as the law? This question, not quite the same as more ambitious question, “What is law in China”, is nevertheless the first question to be addressed by any study of the legal system in the People's Republic of China (the PRC).

This article surveys the system of legislation, the forms of legislation and other points, including amendment, promulgation and enforcement, translation, judicial precedent, custom, and the “policy” (­ō) of the state or Chinese Communist Party (CCP) as a source of the law.

There are some significant features in the sources of the law of the PRC;

1, All of the laws of Guomindang (Chinese Nationalist Party) were repealed before the founding of the PRC;

2, Because of this, the policy of the state or CCP has been one of the sources on those occasions when there is no other existing legislation;

3, There are so many different kinds of forms of legislation that the forms which are provided in laws on state organization cannot cover all of them;

4, But, in quantity of laws and regulations, there are 36 (37) kinds of the forms which are provided in laws on state organization that cover most of legislation;

5, 25 (26) of the 36 (37) are Gongwen (Œö•¶, most of which are reports or documents of state administrative authorities;

6, There had been no clear rules on promulgation and enforcement before 1987;

7, There is still no rule of judicial precedent;

8, Custom is recognized as a source of the law or a reference only in certain laws and regulations.


The Feudal Framework of the Land


Law in Glanvill

by Katsujiro MATSUMURA

The paper studies the English Land Law period with Glanvill (called G hereafter) as a main objective, particularly restricting the theme within the Tenure by Knight Service.

The paper develops along the following procedures. First it is stated that Glanvill is the earliest law book of Common Law and it's situation in the English Legal History, and then comes the mention that an action on the Tenure by Knight Service at the Court Baron holds a eseignorial' character through the analysis of Glanvill and Plea Rolls. Then unexpectedly the lord emerges in the spotlight, who was thought to take an impartial role in the turmoil between the demandant and the tenant around the Tenure by Knight Service. That is to say, the lord becomes a real party in the turmoil in question.

Then secondly through the study of a writ of right patent (G. XII, 3), an assize of novel disseisin (XIII, 33) etc, the transition of suits from the Lord and the Court Baron to the Crown and Roya Justice, to point out that at the background of this, there are writs conceived by the King's Court and the novel proof contained in it, i. e. Jury in the broad sense.

And then, it studies the nature of English Feudalism in Glanvill, i. e. the real sense of eseignoral' character. That is to say, the status contract (homage) and its progressive character, services and incidents, and right of succession and alienation on the tenure of knight service (= feodum). And in conclusion, Common Law in its emerging period is the law which being established during the transfer process of the jurisdiction over real action from Count Baron to King's Court.

This conclusion, the author assumes, will be revealed through the coming studies of the relation between the Crown and the local especially local self control with the county court convention in the center. And also this remains to be solved henceforth together with the closer analysis of each real action such as an assize of novel disseisin, a writ of right, and a writ of entry sur disseisin etc.


F. W. Maitland: A Theory of Corporation

by Hideo ONO

Here, in this essay, it will be suggested that the “Genossenschaft” and its theory in England was one of important themes for Maitland, particularly late in his life. It seems to me that Maitland's studies in history of corporation in England consist of three parts; (1) township and borough, (2) trust and corporation, (3) state and corporation. It is too ample and too difficult to trace and examine his studies on corporation in whole, as his other studies. Then, here, we will outline his theory of corporation, especially in relation to trust and corporation. Through our discussion, we will perceive its importance, its “the greatest exploit of English jurisprudence”, its function as supplement of incorporation. Lastly, as a result of development of trust in modern England, it might be pointed out that England had and is to have a unique theory of state, as contrasted with the Continent.

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