|Legal Hitory Review vol.41 (1991)|
|Summaries of Articles|
Geishōgi-contrad and the development of its case theory
by Itaru YAMANAKA
This paper analyzes the legal effect of Geishōgi-contract in the early Meiji period, before the enforcement of old Civil Law, with some unknown decisions of lower courts in Tokyo and Osaka. It contains, First, as for Geishōgi-contract, dualistic opinions, labor contract as Geishōgi was void against public policy but advance contract was valid, had been dominant during the Old Supreme Court era. In 1955, Supreme Court invalidated the long supported precedent with a unitary opinion and reversed it. This paper clarified, for the first time, that dualistic opinions (e.9., the decision of Tokyo court of appeals in 1878, the decision of Tokyo district court in 1879) had existed before the appearance of the decision of Old Supreme Court and that had been the main stream in lower courts.
Second, while there had been the decision of Old Supreme Court in 1896 for Geishōgi's freedom of retirement, similarly, we found that it had been admitted in lower courts (Tokyo and Osaka) before it. Furthermore, there were interesting decisions that had prohibited a master from forcing Geishōgi to work and from taking back the returned. In the case of human traffic as an employment contract, lower courts had remedies for Geishogi's freedom of retirement with dualistic opinions.
Third, we found, however, a progressive decision which made an advance contract void for the proclamation 295 in 1872.
Finally, we should regard the decision, the substance of an adoption for Geigi was a masked Geishōgi-contract and void for the proclamation 295, as the progressive one which was treated as a problem of public policy.
The Historical Role of the Local Seigneurs in the Medieval Japan
Investigating on the Process of Founding the Local Judicial Decision Authority in the 11th Century
by Hiroaki TSUJIMOTO
On “the Spring Japan Legal History Association” in 1963, we had brought up the discussion about the historical affairs relating to the land possession; the mutual relation of the power and the land possession.
The concrete contents of the discussion in the Association of that year, had been maintenance what the land possession was relational affairs as to the sovereign and the obedience in society, as well as, it has been consisted of the basic legal condition of the power. The main meaning of this theory was what the sovereign system has close relation with the land possession at that time. To be concrete our theories, we should be comment as the following:the development of the land system has to be unit the historical affairs, and then, the society at that day, had given the main position on the original system of land.
I should be contribute with this paper for reconcile with and embody the contents of above studies of our Association. And, as for clarify the basic structure of Japanese Feudalism, I aim, finally, to explicate the process of founding on the local jurisdiction.
In the first chapter, through the analyzing of the writs by Kokushi in TANBA(丹波国司), the provincial governors in TANBA, I have proved that “Zaiehi” (｢在地｣), contracted co-operation, has been brought up the authority to be certificate and guarantee of the land possession itself.
In the second chapter, through interpreting and analyzing of the command by “Sangōs” (｢三綱等)｣) of the Tōdai-Temple(東大寺) in the 12th century, I proved that the base of the power was not native to the central government, but exist on the contract co-operation by the producing organization based the province.
There was the “Zaichi Rikken” (「在地立券」) the civil land registry which had the role that it decide upon the right of the land possession in society.
In the third chapter, through investigating “the Ichijō-Temple Documents Collection” (「一系院文書」), the decision by Kōfuku-Temple's household administrative office in 1080, (Syōryaku the 4th), I testified to the fact that the local seignior had authorized those qualities that was inheritable. And then, it has proved that becoming the origin of provincial seignior's jurisdiction, and it has preserved the function of the justice by the local independent organization upon the Imperial Litigation system.
For Ninsokuyoseba (人足寄場) in Edo and the Change of its Character
by Tadahisa SAKAMOTO
The purpose of my paper is to investigate a role of Ninsokuyoseba in the Big City Edo, which was established 1790 on the Island of Ishikawa, in the later part of the Early Modern Period. In order to achieve this object, I wish to pay attention to the change of its character.
I can point out two epochs of the character of Ninsokuyoseba. Firstly, in the year of 1820, Ninsokuyoseba began to accommodate not only homeless vagabonds but also exiles. It was necessary for Shogun-government to accommodate them to maintain the public peace of Edo. Consequently, Ninsokuyoseba partly played a part as a prison. Secondly, in the year 1841, the work “oil pressing” was begun in Ninsokuyoseba to make up for unsound financial conditions in those days. And contents of its labor were very hard, and laborers suffered from bad conditions of their working. Occasionally, some of those laborers tried to run away from Ninsokuyoseba for unendurable works. So they began to think of it as a prison.
Therefore, after these two epochs, Ninsokuyoseba became to be synthetically and relatively estimated as from “a workhouse” to “a prison”.
Nevertheless, Ninsokuyoseba was one of the most important town policies of Edo and continued to play a part to maintain its peace to the end of Shogun-government.
On the Criminal Naisai in the Edo Shogunate
– With special reference to personal injury –
by Muneyuki SUYAMA
The main purpose of this paper is to inquire into why the criminal Naisai (reconciliation) was permitted by the Shogunate court of law and how it actually functioned.
The criminal Naisai was effected through the procedure of Yumen (acquittal, commutation of sentence) or Ginmisage (non-prosecution). The two procedures differ in form, but are essentially the same in that after a private agreement or compromise between the victim and the wrongdoer, the former and/or his relations apply to the court for a mitigation and remission of the punishment. Hence the two procedures may be considered as Naisai in a broader sense of the term.
In the early days of the Edo era the Naisai was extensively practiced in respect of both classes and weighing of offences. But it was gradually limited during the days of the Enpo period into the Osadamegaki (the code of civil and criminal law of the Edo shogunate) legislation for the reason that the court's need speedily to deal with the increasing number of crimes and to secure legal certainty at the same time led towards uniform application of the law, and especially that the unfairness had to be avoided which would have ensued according to whether the Naisai procedure succeeded in a given crime.
In the later days of the Edo era, and especially towards the end there of, the Naisai was extensively allowed in disregard of the Osadamegaki requirements. The reasons are: (1) that the police control was so weak that there had to be limits on punishable offences; (2) that it was intended to relax the exceedingly uniform and stuck application of the criminal law to meet the social realities; (3) that measures were being taken to reduce the waste of huge costs and time incurred in the criminal procedure of the day; etc.
Verwandtenerbfolge und Familie nach dem Zürcher Recht
Das Erbrecht der Stadt Zürich zeichnet sich durch eine große Kontinuität aus, die vom Mittelalter bis in die Mitte des 19. Jahrhunderts reicht. In der Verwandtenerbfolge ist der praktische Ausschluß der Muttermagen vom Erbrecht hervorzuheben. Nach der Ratsverordnung von 1414 erbten die Verwandte in folgende Reihenfolge: Deszendenten, Vater, Vollbürtige Geschwister und Halbgeschwister väterlicherseits, Groß- und Urgroßvater, Geschwisterkinder, Vatermagen bis und mit dem vierten Grad, Vatermagen des fünften Grades und Muttermagen.
Diese Verwandtenerbolge zeigt in der Grundzügen eine große Übereinstimmung mit dem Recht der Innerschweiz. Zwischen dem Erbrecht und der Verwandtenunterstützungspflicht gab es einen engen Zusammenhang. Er hatte zur Folge, daß in erster Linie die Vatermagen verpflichtet waren, für unmündige Kinder aufzukommen und nicht die Mutter oder weitere Muttermagen. Gemäß einer Ratserläuterung aus dem Jahre 1629 galten die durch Frauen verbundenen Verwandten vaterlicherseits als Muttermagen, und die eigentlichen Muttermagen waren nicht mehr erbberechtigt. In der Stadt Zürich und seinen benachbarten Gebieten war das System der Güterverbindung herrschend: Die gesetzlichen Ansprüche der Witwe waren gering.
Erst das Stadterbrecht von 1716 gewährte der Frau einen geringen Anteil am ehelichen Vorschlag. Im Stadterbrecht wurde das Erbrecht der Dezendenten am besten berücksichtigt: Die Einführung des Eintrittsrechtes der Enkel bzw. Urenkel und die Einschrankung der Verfügungsfreiheit des Erblassers wegen des sehr großen Pflichtteils.