Moral code and Law
Emeritus professor of Nagoya University
KAGAYAMA Shigeru

2020/12/17

Moral cod and Law 20201

Table of Contents
 Class schedule, Self-introduction,

 3. Bronze Rule
 (1) Case study3

 Aim of the Lecture, Preface (1) Purpose of Law, (2) Method of Law
 (3) Result of Law – Relation of Law, Moral and Religion

 (2) Moral code, (3) Law
 (4) Applicable law to the case3

 4. Promise Rule

 1. Golden Rule

 (1) Case study4

 (1) Case study1, After the case1 (2) Moral code, (3) Law
 (4) Applicable law to the case4

 (2) Moral code, (3) Law
 (4) Applicable law to the case1

 Conclusion

 2. Silver Rule
 (1) Case study2

 Appendix

 (2) Moral code, (3) Law
 (4) Applicable law to the case2

 Reference

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Class ScheduleThur. 17 Dec. 2020
14:45
~
16:15

Self-Introduction

16:30
~
18:00

1. Golden Rule (Case1)

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Aim of the Lecture
Preface

2. Silver Rule (Case2)

Moral cod and Law 2020

Fri. 18 Dec. 2020
3. Bronze Rule (Case3)
4. Promise Rule (Case4)
Presentation of Students1,2Presentation of Students3,4Conclusion
3

Self-Introduction (1/2)
 I am a emeritus professor of Nagoya University and Meijgakuin University.
 16 years ago, I was a professor of Nagoya University.
 During 1997-2004 I was going to Asian countries, State of Mongolia, Vietnam,
Cambodia, Laos, Uzbekistan and China to cooperate development of civil law.
 Fortunately, these activities were evaluated from this university, I became to an
emeritus professor of Nagoya University in 2008.

 My specialty is civil law, but I also study consumer law, legal informatics(AI & Law), law & management, and copyright law.
 I am currently writing a book titled "Introduction to Law for Children" on legal
education for young children.

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Self-Introduction (2/2)
 Since retiring in 2017, I have moved to
Oita Prefecture where my parents live.
 I have been conducting research on
copyright law at the Graduate Schoolof Intellectual Property Studies(correspondence course) of Kibi
International University, Junsei Gakuen.
 In addition, I am an intensive lecturerof civil law for international students
at Nagoya University Graduate School,and "Contract Law" at the Faculty ofLaw, Meiji Gakuin University.
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The Aim of the Lecture 1. Trust in the human brain
 2. Question about the human brain
 3. Method for properly controlling mirror neuron
 4. Confirmation of the problem-solving function of the law by case study 5. Cause of the lack of confidence in the law's problem-solving capabilities
 6. Necessity of supplementing the function of explaining law by virtue of morality
 7. Proper control of mirror neurons and the realization of peace through law and morality
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The Aim of the LectureIn this lecture, I hope to restore thepublic's confidence in the excellent
problem-solving and peace-contributing
functions of the law by utilizing theexcellent explanatory functions ofmorality.
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1. Trust in the human brain
The starting point for this lecture is trust in thehuman brain.
In particular, mirror neurons (sympathetic
neurons) that enable people to empathize with
one another, cooperate with one another, andshare the results, as in "return a smile tosomeone's smile".
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2. Question about the human brain
Mirror neurons, however, also react
immediately to the other person's anger,
causing "retaliate if one is beaten".
The endless chain of revenge and miserable
wars are also the work of human mirror
neurons.
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3. Method for properly controlling
mirror neuron
Therefore, if we are to prevent the chain ofrevenge or the horrors of war, we must notblindly follow the function of mirror neurons,
but must respect the function of empathy andlearn how to control the function of revenge ofmirror neurons.
The best way is, I believe, morality and law.
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4. Confirmation of the problem-solving
function of the law by case study In this lecture, we will try to clarify the superior problem-solving
function of law and its contribution to peace by taking 4 cases , i.e.
 (Case1) two women's life-saving activities on the sumo stage（Golden rule）,
 (Case2) a traffic accidents and death caused by a self-driving car（Silver rule）,
 (Case3) a payment of the other’s debt by mistake（Bronze rule） and (Case4) nonpayment of leave of absence allowance by employers in responseto requests for voluntary restraint in the spread of new coronavirus infection（Promise rule）

 that reflect 3 moral codes and the latest events from thetraditional ones.
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5. Cause of the lack of confidence in the
law's problem-solving capabilities
I would like to discuss why such a wellfunctioning law has not yet to gain the full trustof the public.
In this lecture, we hypothesize that the law wasso focused on the combination of requirements
and effects that it failed to clarify the moral
reasons why the combination of requirements
and effects was reasonable or ideal.
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6. Necessity of supplementing the functionof explaining law by virtue of morality
In order to test this hypothesis, I would like tomake it clear that the existing conflict between
law and morality can be restored bysupplementing the explanation of the moral
reasons behind the law, which consists of a
combination of requirements and effects.

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7. Proper control of mirror neurons and therealization of peace through law and morality
 In this lecture, based on the above considerations, we willconsider how to properly control mirror neurons in our brain
by complementing the excellent conflict resolution of law
with the moral explanation function.
 In other words, we will further evolve the functions of themirror neurons, which are called "return a smile to" or"empathy function", while we will consider how to properly
control the "retaliate if one is beaten" or "retaliatory
function" of the mirror neurons.
 Through this, we will seek ways to realize world peace.
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PrefacePurpose, Method and Result of Law
Relationship among Law, Morality and Religion

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Type and source of Laws
TreatyWrittenLaw

Constitution

Act orCode

CabinetOrder

Ordinanceof Ministry

Prefectural
Ordinance

Law
CustomUnwritten
Law

Case Law

Moral Code
Religious CodeLegal
Principle
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The Purpose, Method and Result of Law
In order to achieve the peace Purpose of Law
 is to resolve disputes peacefully before they happen or after they
happen.

 Method of Law
 must follow peaceful and proper procedures (ex. Toulmin’s art ofargument), and the result must be justice.

 Result of the application of Law
 must be peaceful solution, acceptable to both of parties, experts andthen public opinion(including the view point of Moral and Religion).
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(1) The purpose of Law
"The goal of the law is peace, and the means to reach it is struggle." Rudolf v. Jaring, “Der Kampf ums Recht (The struggle for Right)”, 1872

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The goal of the law is peace,
and the means to reach it is struggle.
Rudolf v. Jaring, “Der Kampf ums Recht (The struggle for Right)”, 1872

 “All the laws of the world were fought against, and all theimportant laws had to first be taken from the hands of those
who denied them. Law is not a mere thought but a living force.
 Therefore, the goddess of justice has a measure of right in one
hand and a sword in the other hand to claim it. A sword
without measure is naked violence, and a measure withoutsword means the powerlessness of the law.
 The measure and the sword are interdependent, and the perfectstate of law exists only where the power of the sword of thegoddess of justice and the skill of handling the measure arebalanced.”
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Both Goal and means of Law are peace I think, however, there is no guarantee that real peace will be
brought about by “struggle” by force.
 This is because there is a high risk that a solution by force willlead to repeated struggles because it will not win the consent
of the parties.
 If that is the case, I believe that the means of law should be
peaceful argument, as in “The goal of the law is peace”, andthe means of reaching it is not struggle, but peaceful argument.
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(2) The method of Law
Legal way of Thinking
Toulmin’s Diagram
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IRAC as the legal way of thinking
Analyze, argue and draw your Conclusion
Analysis

Issue

Finding data & facts

Rules

Finding Rules

Application

Application of Rules,
Tentative conclusions

Argument

Argument against / fortentative conclusions

A
Argument

Conclusion
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Finding final conclusion

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Top-down and Bottom-up way of thinking
Rule 2Rule 1

facts finding

fact 1

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rule finding

another rule &facts finding

fact 2Moral cod and Law 2020

fact 323

The Myth of Judgment
Syllogism
 Major premise: All men are motal.

 Miner premise: Socrates is a man.

 Conclusion: Socrates is mortal.
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Judgement
 Substantive Law
 If tortfeasor caused damage against a victim
and there is fault in his act, then he shouldcompensate the victim.

 Fact finding The victim proved the fault of tortfeasor.

 Application of law to the fact The tortfeasor should compensate the victim.
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From Syllogistic to Toulmin Diagram• Syllogism (Admit of no exceptions)• Major premise: All men are motal.
• Miner premise: Socrates is a man.
• Conclusion: Socrates is mortal.
• Toulmin Diagram (Admit of exceptions)
Socrates is a man.

no
Probably yes

Socrates is aman of god ofphilosophy.

All men aremortal.
All living
things aremortal.
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Socrates is mortal.

However, god and truth are
immortal.
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Application of Toulmin Diagram to Joke
The person who made amanifestation knows that it does
not reflect his/her true intention.

noProbably yes

The manifestation
is valid.

When the otherparty knew or
could have known
the true intention,
the manifestation
is invalid.

The person
who made amanifestation
is liable to it.

The manifestation of intention which is concealed the true intention:
It is invalid in case the other party knew or could have known.
It is valid in case the other party is didn’t know and without negligence.
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(3) The Result of Law
The result of law must be acceptable to both of parties,
experts and then public opinion(including the view point of Moral and Religion).
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Basis for Moral, Religion and Law

Basis forTrust

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Morality

Teachings of respectablepeopleReligion

Teachings of God, beyond
human beings

Law

Rules determined by people
with due process

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Conflict between people who believe in morality or
religion and those who believe in law(1/2)
Moral norms are cultures that trust long-establishedpractices and the teachings of the people they respect.
Religious norms are cultures that rely on the teachingsof the omnipotent God, who transcends human beings.
On the other hand, Legal norms are culture that trusts
rules determined by human groups with due process.
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Conflict between people who believe in morality or
religion and those who believe in law(2/2)
 However, the legal group also includes people they do notrespect (the merchant of death, corrupt politicians, foolishpeople deceived by money), often resulting in rules that are
immoral.
 Thus, people who place importance on morality or religion
and trust in the teachings of the people they respect orGood suspect people who follow legal norms as impure
people who trust rules made with money.
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Need for reconciliation with people withdiffering grounds of trust(1/2)
 In order for human beings to be social animals and to live apeaceful and comfortable life in society, rules are necessary,and a mutual relationship of trust is necessary for thegroups that form the premise of the rules.
 It is even more important for people to understand eachother's reasons of trust in a society in which diverse
cultures compete with each other due to the spread ofhuman life.
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Need for reconciliation with people withdiffering grounds of trust(2/2)
If you have a person whom you respect in common,
you should respect their judgment;
If you believe in a common God, you should follow
the teachings of God;
If you do not have such a common basis of trust, you
should respect legal codes such as universal laws
covering the widest area, treaties concluded between
nations, national laws, and local ordinances.
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Three Moral Codes

Moral
Codes

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GoldenRule

Do for others（Bible）

SilverRuleDon’t harm others（Analects of Confucius）

Tort Law

BronzeRuleDon’t be enriched byothers harm (Digesta)

Unjustenrichment

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Managementof business33

1. Golden Rule
Do to others as you would have them do to you.
(Luke 6:31 (Love for Enemies))

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(1) Case study1 →Applicable law
Maizuru City Grand Sumo Case (2018)
 On April 4, 2018, at the “Spring Grand Sumo Tournament” held in
Maizuru City, Kyoto Prefecture, when mayor Ryozo Tatami wasgiving a speech in the Sumo stage, he suddenly fell on his back(Later found to be critical due to a subarachnoid hemorrhage:
serious disease caused by bleeding from blood vessels in the brain).
 The hall was in an uproar, and while the people on the ring were
panicking, two women in the audience stepped into the Sumostage for life-saving treatment.
 When the women were immediately started artificial respiration, theevent in charge of the announcement repeatedly announced to them,"Women should get off the Sumo stage.".

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After the Maizuru City Grand Sumo Case
 After the Maizuru Sumo Case, the male rescue team arrived and took over
the rescue work with the two women, and the mayor was rushed to thehospital and admitted to the hospital, where he survived.
 The rescue operation of two women, ignoring the announcement "Womenshould get off the stage.", saved lives (The mayor of Maizuru is now
recovering his health and returning to work.).
 Subsequently, President Hakkaku of the Japan Sumo Association explainedthat the announcement of the event was "inappropriate as an emergency
response".
 On the other hand, there are opinions that the tradition of “Nyoninkinsei( 女人禁制：No women allowed in the Sumo stage)" should be
respected and that announcements should be followed.
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(2) Moral CodeGolden Rule
 Matthew 7:12 (Ask, Seek, Knock, Do for others)
 Luke 6:31 (Love for Enemies)
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Golden Rule (1/4)
 Matthew 7:12 (Ask, Seek, Knock, Do for others) “Ask and it will be given to you; seek and you will find; knock and thedoor will be opened to you. 8 For everyone who asks receives; the one who
seeks finds; and to the one who knocks, the door will be opened.
 9 “Which of you, if your son asks for bread, will give him a stone? 10 Or if
he asks for a fish, will give him a snake? 11 If you, then, though you areevil, know how to give good gifts to your children, how much more will
your Father in heaven give good gifts to those who ask him!
 12 So in everything, do to others what you would have them do to you,for this sums up the Law and the Prophets.
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Reason of Golden Rule
 Why you could receive if you ask someone to give?
 Because a human has a heart to share and everyone feels happier to give something tosomeone than to receive something from someone.
 There is more happiness in giving than in receiving
 Acts of Apostles Chapter 20
 35 By every means I have shown you that we must exert ourselves in this way tosupport the weak, remembering the words of the Lord Jesus, who himself said,"There is more happiness in giving than in receiving." Question
 I wonder that the meaning of "Do for others" is equal to "Do whatever you want forothers". If it is right, the meaning could become "small kindness is big trouble forothers". Because it is not always equal between what you want to others and what
others want to you.
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Golden Rule (2/4)
 Luke 6:31 (Love for Enemies) 27 “But to you who are listening I say: Love your enemies, dogood to those who hate you, 28 bless those who curse you, pray for those who mistreat you.
 29 If someone slaps you on one cheek, turn to them the otheralso. If someone takes your coat, do not withhold your shirt
from them.
 30 Give to everyone who asks you, and if anyone takes what
belongs to you, do not demand it back.
 31 Do to others as you would have them do to you.
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An interpretation of Golden Rule
 It is difficult to understand of context of 30-31 chapter 6 of
the Gospel of Luke.
 30 Give to everyone who asks you, and if anyone takes what
belongs to you, do not demand it back.
 31 Do to others as you would have them do to you.

 However, the meaning in this case is easier to understand if
we switch positions.
 The meaning of "Do for others" in this case would be the same as“Do to others as they would have you to do them”.
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(3) Law
Article 698(Urgent Management of Business)

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Golden Rule (3/4) § 677 BGB
 §677 BGB (Pflichten des Geshäftsführers)
 Wer ein Geshäft für einen anderen besorgt, ohne von ihm
beauftragt oder ihm gegenüber sonst dazu berechtig zu sein, hat das
Geshäft so zu führen, wie das Interesse des Geshäftsherrn mit
Rücksicht auf dessen wirklichen oder mutmaßlichen Willen es
erfordert.

 Article 677(Duties of the voluntary agent) A person who conducts a transaction for another person without
being instructed by him or otherwise entitled towards him must
conduct the business in such a way as the interests of the principal
require in view of the real or presumed will of the principal.
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Golden Rule (4/4) Civil Code of Japan→Applicable Law

 Chapter 3 Negotiorum Gestio (Management of Business)) Article 697 (Management of Business)(1) A person who commences the management of a business for anotherperson without being obligated to do so ("Manager") must manage thatbusiness ("Management of Business") in accordance with the nature of
the business, using the method that best conforms to the interests of that
another person (“the principal”).
 (2) The Manager must engage in Management of Business inaccordance with the intentions of the principal if the Manager knows, oris able to conjecture that intention.
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The reason for Art. 697,
Civil Code of Japan The spirit of the legislation of paragraph 2 of Civil Code 697 is asfollows:
 If a manager is aware of or possible to perceive the principal's intention
regarding management, the manager has to do business management inaccordance with the principal's intention. In this case, the manager should not
manage with the method prescribed in paragraph 1.
 Under the name of business management, a manager should not interfere in
the affairs of others in vain. In addition, the manager should not be what others
do not want.
 Even if there is a benefit to a person, but if it is contrary to the person's will,
the manager should not interfere with the affairs. Such a thing is, is contrary to
the spirit of the legislation of business management.
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(4) Applicable law to the case1
 Article 697 (Management of Business) Article 698(Urgent Management of Business) Article 700(Continuation of Management of Business by Managers)

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Applicable articles in
Maizuru City Grand Sumo Case (2018)
 Urgent Management of Business Article 698
If a Manager[woman] engages in the Management of Business[artificial respiration]in order to allow a principal[Mayer] to escape imminent danger to the principal's
person, reputation or property, the Manager[woman] shall not be liable to compensate
for damages resulting from the same unless he/she has acted in bad faith or with grossnegligence.

 Continuation of Management of Business by Managers

 Article 700
A Manager[woman] must continue the Management of Business[artificial respiration]
until the principal[the mayer] or his/her heirs or legal representatives[male rescueteam] can undertake it; provided, however, that this shall not apply in cases where it is evident that thecontinuation of the Management of Business is contrary to the intentions of theprincipal, or is disadvantageous to the principal.

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2. Silver Rule
 Do not do unto others what you would not have done unto you.” The Analects of Confucius 15-24.

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(1) Case study2: →Applicable law
A self-driving car caused death of a pedestrian UBER Technologies, Inc., a car-hailing company(Y) in
the United States, carried out a test drive of a self-driving
car made by Volvo (Z) in Tempe, Arizona, in March 2018,
hit and killed a pedestrian X (Elaine Hertzberg (49))
crossing a road by pushing a bicycle.
 A safety driver in the car was charged with involuntarymanslaughter in connection with the accident. At the timeof the accident, Rafael Vasquez, a safety driver in a selfdriving car, was watching "The Voice" according toinvestigators.
 In civil cases, what responsibility does the manufacturer,
owner, and driver of the self-driving car assume for X's
death?
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https://www.businessi
nsider.jp/post-214243

49

(2) Moral Code
 Zi Gong asked, “Is there any words that I have to obey my wholelife?” Confucius replied, “It is thoughtfulness. Do not do unto
others what you would not have done unto you.” The Analects of Confucius 15-24.

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(3) Law
 French Civil Code (1804)
 German Civil Code (1900)
 Japanese Civil Code (1898)
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French Civil Code(1804)
 Art. 1382 (Civil responsibility in general) Any act whatever of man, which causes damage to another, obliges the one
by whose fault it occurred, to compensate it.
 Tout fait quelconque de l'homme, qui cause a autrui un dommage, oblige celui parla faute duquel il est arrivé, a le réparer.

 Characteristics
 There is no term of right in this provision.
 It means that all of rights and legal interests can be compensated.
 Prerequisite is only 3: fault, damage, and causation between fault anddamage.
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German Civil Code(1900)
 § 823 (Duty to compensate for damage) (1) A person who, wilfully or negligently, unlawfully injures the life,
body, health, freedom, property or other right of another is bound tocompensate him for any damage arising therefrom.
(1) Wer vorsaetzlich oder fahrlaessig das Leben, den Koerper, dieGesundheit, die Freiheit, das Eigentum oder ein sonstigers Recht eines
anderen widerrechtlich verletzt, ist dem anderen zum Ersatz desdaraus entstehenden Schadens verpflichtet.

 Characteristics
 Limited list of rights: Pure economic loss is excluded.
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Japanese Civil Code (1896)
Article 709 (Tort in general - compensation
for damage)A person who has intentionally or negligently
infringed any right of others, or legally
protected interest of others, shall be liable tocompensate any damages resulting inconsequence.
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Difference between
Criminal law and Civil law
Criminal law（Legality principle）

Civil law (Remedy)

The
other
type

Type oftorts:
Assault
Not
guiltyType of
Crime:
Battery

Punishment

General principle

Type of
Crime:
Assault

RemedyType oftorts:
Battery

General principle

Typology
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The
other
type

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Function of special torts
A type of torts
Employer’s liability

The othertypes

Tort ingeneralA type of torts
Possessor’s liability

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No-need ofproof of negligence

Need ofproof of negligence

Remedies

No-need ofproof of negligence

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Best 20 Articles of Civil Code of Japan
from the view point of frequency of application(1945-2013)95 601
541
1% 1%
2%
703
2%

612
2%
177
2%
90
2%
719
4%

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110 711 416 723
1% 1% 1% 1%

656
1%

770
1%

709
32%
1
5%
415
6%

715
8%

722
9%

710
18%

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Best 30 Articles of Civil Code of Japan
No.

1
2

General tort law

34Comparative Negligence

Compensation

Employers’ liability

5

Non Performance ofcontract

6
7

General Principles

8

Pubic policy

910
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ArticlesJoint tortfeasor

Transfer real estate
and registration
Restriction of sublease

No.

ArticlesNo.

Articles11 Unjust Enrichment
Termination
12

21 Liability of land
22 Prescription of tort

13
14

Mistake

23
24

Duty of Care of
Mandatary

15

Apparent Agency

25

Loan for use

27

Action Paulienne

Lease

Sale

16
17

Next kin’s right forcompensation

18

Defamation

28

Acquisitive
prescription

19
20

Quasi-Mandate

29
30

Free of contract

Scope of Damages

Judicial Divorce

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Division of Inherited
26
Property

Action oblique
58

Dynamic understanding of general tort law (1/4)
Intention or
negligence

DamageCausation

Incapability

ExcuseDamagesComparative
negligence

Extinctive prescription
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3 years from awarenessof tortfeasor

20 years from the accident
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Dynamic understanding of general tort law (2/4)

Intention or
negligence

Causation

DamageIncapability
ExcuseDamages
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Comparative
negligence
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Dynamic understanding of general tort law (3/4)
Intention or
negligence

Causation

DamageIncapacity

ExcuseDamagesComparative
negligence

Extinctive prescription
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3 years

20 yearsMoral cod and Law 202061

Dynamic understanding of general tort law (4/4)
Product liability

DefectCausality

DamageEven if the manufacturer's negligencecannot be proven, negligence can be
Exemptions presumed by proving a defect in the
product.

Damages
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Legal capacity
Self-defense etc.

Comparative
negligence
Moral cod and Law 202062Illustration of Point of Due Care
140

Minimum pointof Social cost120

Care Cost

100
80

Expected Damage

60
Social Cost

40
20
0

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Point of due care
0

1

2

3

4

5

6

7

8

Moral cod and Law 2020

9

10

63

Two types of payments cause
completely different results
 Payment of obligor

 Payment of Gurantor

債務者
ObligorObligor

Total
Payment

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保証人
Garantor¥10
Mil
1000万円

Garantor

Total
Payment

ObligeeObligee

Both obligations are
extinguishedThe credit move from Obligee to Garantor.
Obligation of Obligor not extinguished andexist for the purpose of reimbursement.
Moral cod and Law 2020

64Structure of several and joint liability
Joint debtorY1300+(300)

Joint debtor Y2
200+(400)

Joint debtor Y3
100+(500)

Surety of Y3
100

Surety of Y3
100

Surety ofY2
200

Surety of Y2
200

600

Y1’s obligation
300

Surety of Y1
600
300
Y2’s obligation
200
2
0
0

36
00
00

Surety600of Y1300
Y3’s obligation
100

1
0
0

Obligee X

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Moral cod and Law 2020

65

Subrogation of joint obligor
by total payment
Joint obligor Y1

Joint obligor Y2

Surety of Y3
100

Surety of Y3
100

Surety of Y2
200
Y1’s obligation
300

Surety of Y1
300
Y2’s obligation
200
2
0
0

3
0
0

Joint obligor Y3
Surety of Y2
200
Surety of Y1
300
Y3’s obligation
100

1
0
0

ObligeeObligee X

600→0
600
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Moral cod and Law 202066

(4) Applicable Law to the case2
 Article 719(Joint and several liability of multiple tortfeasors), Civ. Code of Japan
 Act on Securing Compensation for Automobile Accidents
 Product Liability Act

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Moral cod and Law 202067

Multiple Tortfeasors →Case2
Article 719(Joint and several liability of multiple
tortfeasors)

 (1) If two or more persons[Y,Z] have by their joint
unlawful act caused damage to another[X], they are jointly
and severally liable to make compensation for suchdamage; the same shall apply if it is impossible toascertain which of the joint participants has caused thedamage.
 (2) Instigators and accomplices are deemed to be joint
participants.

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68

Act on Securing Compensation for
Automobile Accidents →Case2
 Article 3(Automobile Liability)
 A person[Y] that puts an automobile into operational use for that
person's own benefit is liable to compensate for damage arisingfrom the operation of the automobile if this results in the death orbodily injury of another person[X]; provided, however, that this does not apply if the person[Y] and the driver prove that they haveexercised due care in connection with the operation of the automobile,
 that the injured party[X] or a third party other than the driver has acted
intentionally or negligently,
 and that there was no defect in automotive structure or function.
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69

Act on Securing Compensation for Automobile
Accidents－Direct Action →Case2
Article 16(Filing a Claim with the Insurer for
Damages)(1) If a person[Y] in possession becomes liable tocompensate for damage as under Article 3, theinjured party[X] may file a claim with insurer for
the insurer to pay the injured party damages of up to
the amount of insurance coverage, pursuant toCabinet Order.
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Moral cod and Law 202070

Product Liability Act (1/2) →Case2
Article 3(Product Liability) The manufacturer[Z], etc. shall be liable for damages
arising from the infringement of life, body or property ofothers[X] which is caused by the defect in the delivered
product which was manufactured, processed, imported, or
provided with the representation of name, etc. described initem 2 or item 3 of paragraph 3 of the preceding Article,
provided, however, that the manufacturer, etc. shall not beliable when the damages occur only with respect to suchproduct.

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71

Product Liability Act (2/2) →Case2
 Article 4 (Exemptions) In cases where Article 3 applies, the manufacturer[Z], etc. shall not
be liable as provided in Article 3 if he/she proves that: (i) the defect in such product could not have been discovered given thestate of scientific or technical knowledge at the time when the manufacturer,
etc. delivered the product; or (ii) in case where the product is used as a component or raw material ofanother product, the defect occurred primarily because of the compliancewith the instructions concerning the design given by the manufacturer ofsuch another product, and that the manufacturer, etc. is not negligent withrespect to the occurrence of such defect.
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Moral cod and Law 202072

Dynamic understanding of general tort law (4/4)
Product liability →Case2

DefectCausality

DamageEven if the manufacturer's negligencecannot be proven, negligence can be
Exemptions presumed by proving a defect in the
product.

Damages
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Legal capacity
Self-defense etc.

Comparative
negligence
Moral cod and Law 202073

Division of responsibility of a defective car →Case2
Seller of
Defective car
Producer ofdefective car

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Art. 3 PL law

Moral cod and Law 2020

Owner ofdefective car74

3. Bronze Rule
No one should be enriched by another loss or injury.
 (D.50. 17. 206)

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Moral cod and Law 202075

(1) Case study3: Payment by error→Applicable lawCase in which a person who is neither a obligor nor
an guarantor paid another person’s debt by mistake ① A (third party) mistakenly believed that he was theobligor C himself or his guarantor and paid the debt to the
obligee B (payment by mistake).
 ② B (creditor) considered that A’s payment was due
performance of C’s debt and destroyed the debt instrument,
or lost the opportunity to claim against the obligor after theperiod of prescription expired.
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Moral cod and Law 202076

Case study: Payment by error →Applicable law①A pay to B in error

Third party
A（Loss）③To prohibit to restituteagainst Obligee B

Obligee B② B lost theopportunity
to claim
againstObligor C.

Obligor C（benefit）
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Moral cod and Law 202077

Case study : Payment by error→Applicable law

In this case, A, who has made the payment by
mistake, can claim to whom and what?
③ Can A claim restitute(to return back) of amount
paid against oblige B on the basis of unjust
enrichment?
④ Can A exercise the right to obtain reimbursement
against obligor C based on substantial business
management?
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Moral cod and Law 202078

(2) Moral Code
 Jure naturae aequum est neminem cum alterius detriment et injuria fieri
locupletiorem. (D.50. 17. 206)
 By natural law it is just that no one should be enriched by another loss or injury.

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Moral cod and Law 202079

(3) Law
 Art. 703(Obligation to Return Unjust Enrichment), Civ. Code of Japan Art. 704(Obligation of Beneficiaries in Bad Faith to Return), Civ. Code of Japan Art. 707(Performance of Obligations of Others), Civ. Code of Japan

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80

Type of unjust enrichment
1. Generalunjustenrichment

2. Special
unjustenrichment

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Bona fide unjust
enrichment
Mala fide unjust
enrichment
A. Benefiting unjust
enrichment

failing to become

B. Redeeming unjust
enrichment

failing to become management of

C. Violating unjust
enrichment

failing to become

Moral cod and Law 2020

contract
another’s affairs

torts
81

Unjust enrichment (1/3)
A. Benefiting unjust enrichment
Art. 703(Obligation to Return Unjust
Enrichment)

Art. 704(Obligation of Beneficiaries in Bad
Faith to Return) A person who has benefited("beneficiary") from theproperty or labor of others
without legal cause and has
thereby caused loss to others
shall assume an obligation to
return that benefit, to theextent the benefit exists.

 A Beneficiary in bad faith must
return the benefit received
together with interest thereon.
 In such cases, if any damages
still remain, the Beneficiaryshall be liable to compensate
for the same.

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Moral cod and Law 202082Unjust enrichment (2/3)
B. Redeeming unjust enrichment
Article 190(Return of Fruits byPossessors in bad faith) (1) A possessor in bad faith shall beobligated to return fruits, andreimburse the price of fruits thathe/she has already consumed, hasdamaged due to negligence or has
failed to collect.
 (2) The provisions of the preceding
paragraph shall apply mutatis
mutandis to persons who possess
Thing through violence or duress, orby concealing the same.
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Article 707(Performance of Obligations of
Others by mistake) (1) In cases where a person who is not an obligor
has performed an obligation by mistake, if theobligee has, in good faith, allowed the instrument tobe lost, damaged the instrument, waived the security
or lost the claim by prescription, the person who
performed the obligation may not demand the returnof the performance.
 (2) The provisions of the preceding paragraph shallnot preclude the person who performed an
obligation from exercising his/her right ofsubrogation against the obligor.
Moral cod and Law 202083Unjust enrichment (3/3)
C. Violating unjust enrichment
Article 191(Compensation for Damages by Possessors)

Article 248(Compensation in
conjunction with Accession,
Mixture or Processing) If possessed Thing has suffered loss ordamage due to reasons attributable to thepossessor, a possessor in bad faith shall be
liable to compensate the person recovering
the loss for the entire loss, and a possessor ingood faith shall be liable to compensate such
person for the loss to the extent he/she isactually enriched as a result of such loss ordamage; provided, however, that a possessor
who does not have the intention of holding
as owner must compensate the entire loss,
even if he/she is in good faith.

 A person who suffers
loss because of theapplication of theprovisions of Article 242
through the preceding
Article (conjunction
with Accession, Mixture
or Processing) may
demand compensation inaccordance with theprovisions of Article 703
and Article 704.

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Moral cod and Law 202084

(4) Applicable Law to the case3
 Art. 707(Performance of Obligations of Others), Civ. Code of Japan

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Moral cod and Law 202085Unjust enrichment (2/2)
Applicable law to the case3
 Article 707(Performance of Obligations of
Others)(1) ①In cases where a person[A] who is not an
obligor has performed an obligation by mistake,②if the obligee[B] has, in good faith, allowed the
instrument to be lost, damaged the instrument,
waived the security or lost the claim byprescription,③the person who[A] performed the obligation may
not demand the return of the performance.

 (2) ④The provisions of the preceding paragraphshall not preclude the person[A] who performed an
obligation from exercising his/her right ofsubrogation against the obligor[C].

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Moral cod and Law 202086

4. Promise Rule
Pacta sunt servanda.
 Agreements must be kept.

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Moral cod and Law 202087

Case study4: Absence from work allowance
due to Corona disaster Case(1/2) →Applicable law
 By the extension of the new coronavirus infection, the Japanese
government requested the self-restraint of the business of various
business types. Self-restraint is a non-binding request.
 Employer Y accepted the government's request and closed hisbusiness. During this period, no allowance was paid to workers X.
 Workers X et al. claimed that the reason why X et al. could not work
was the absence from work due to the personal reasons of Employer
Y, and requested that Employer Y pay the absence from work
allowance in accordance with Article 26 (leave allowance) of theLabor Standards Act.
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Moral cod and Law 202088

Case study4: Absence from work allowance
due to Corona disaster Case(2/2) →Applicable law
 Employer Y, on the other hand, argues that the absence from work isbased on the request of the government and is not due to reasons
attributable to the employer, and that the absence from work
allowance cannot be paid.
 Labor Standards Act Article 26(Allowance for Absence from work) In the event of an absence from work for reasons attributable to the
Employer, the Employer shall pay an allowance equal to at least 60 percentof the Worker's average Wage to each Worker concerned during said period
of absence from work.

 Is it allowed to pay leave allowance? What is the reason?
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Moral cod and Law 202089

(2) Moral CodePacta sunt servanda
Agreements must be kept.
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Moral cod and Law 202090

(3) Law Understanding Contract
 Flow of a contract, Type of contracts, Type of obligations
 Formation of contract, Validity of contract Remedies of non-performance of contract

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Moral cod and Law 202091

Flow of Contract
Start
No（not concluded）

Formation
Yes

Unjustenrichment

No（invalid/avoidable）

Validity（Continued）

No

Effective

Yes
Condition

DamagesNo（non performance）
PerformanceNo

ExcuseYes

No

Termination
Specific
performanceEnd
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Moral cod and Law 202092

gratisType of contracts
Transfer
Ownership

No needto returnonerousNeed toreturnUse andreturnContracts

4. Loan for
Consumption

1. Gift
PayingMoney

2. SaleExchangegoods

3. Exchange

gratis

5. Loan for use

onerous

6. Lease

Time limited
work
SupplyService
Independentwork

No transfer
ownership

Enterprise

Completionof work

8. Work

Officework

9. Mandate

Depositionof things

10. Bailment

Organization

11. Association

Annuity

12. Life Annuity

Resolutionof dispute
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7. Employment

13. Compromise
Moral cod and Law 202093Type of Obligations
Viewpoint

OriginType of obligations
Express obligation

From stipulation of parties

Implied obligation

From purpose and Nature ofcontract, practices and usages, goodfaith and fair trading, reasonableness

Obligation to give
Execution

Pay money

Easiest to execute

Deliver things

Easy to execute

Obligation to do or not to do

Evidence

Difficult to execute: change to thedamages in case of non-performance

Obligation to achieve a specific result Obligee should prove non-fault
Obligation of best efforts

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comment

Moral cod and Law 2020

Obligore should prove obligor’s fault
94The effect of sale contract(Art. 176 Code Civil of Japan)
Propertyright
1st Buyer

Sale contract

Seller Article 176(Creation and Transfer of Real Rights)
 The creation and transfer of real rights shall takeeffect solely by the manifestations of intention of therelevant parties.
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Moral cod and Law 2020

95

The effect of the double selling of a realestate(Art. 177 Code Civil of Japan)
Propertyright
1st Buyer

1st Sale contract

SellerRegistration

2nd Salecontract

2nd Buyer
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96

Condition of the validity of Contract(a) The legal capacity or with sufficient authority(b) The representation of will is consistent with its internal will
Conditionof thevalidity ofcontract(c) Without unfair intervention to their decision making process(d) The contents conform to the public order(e) Following Good faith and fair trading

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Moral cod and Law 202097

Remedies of Non-performance of Contract(a) Specific Performance
Remedies of
non-performanceof contract(b) Termination(c) Damages
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Moral cod and Law 202098

(4) Applicable law to the Case4
 Labor Standards Act

 Article 26(Allowance for Absence from work) Civil Code

 Article 536(Obligors' Assumption of Risk)

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Moral cod and Law 202099

Labor Standards Act →Case4
Article 26(Allowance for Absence from work)In the event of an absence from work for reasons
attributable to the Employer, the Employer shall
pay an allowance equal to at least 60 percent of theWorker's average Wage to each Worker concerned
during said period of absence from work.

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Moral cod and Law 2020100

Civil Code →Case4
 Article 536(Obligors' Assumption of Risk)
 (1) Except in the cases provided for in the preceding two Articles, if the performance of
any obligation has become impossible due to reasons not attributable to either party,
the obligor shall not have the right to receive performance in return.
 (2) If the performance of any obligation has become impossible due to reasons
attributable to the oblige[the employer], the obligor[the employee] shall not lose
his/her right to receive performance in return. In such cases, if the obligor gains any
benefit as a result of being released from his/her own obligation, the obligor must
reimburse the obligee for the benefit.
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101

Payment or non-payment of absence
allowance based on burden of risk →Case4
Employer who decided temporary
absence from work
(creditor of the burden of risk)

Applicable law

Allowance based on
temporary absencefrom work

No ground for blame(Leave of absence isdue to force majeure)

Article 536, Paragraph
Allowance is not paid
1 of the Civil CodeWith ground for blame(Absence from work is
determined by the employer)

Article 536, Paragraph Allowance shall be
2 of the Civil Codepaid

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Moral cod and Law 2020102

Civil Code - Article 415(Compensation for Lossor Damage Due to Non-Performance) →Case4
 (1) If an obligor fails to perform consistent with the purposeof the obligation or the performance of an obligation is
impossible, the obligee may claim compensation for loss ordamage arising from the failure; provided, however, that this does not apply if the failure to
perform the obligation is due to grounds not attributable tothe obligor in light of the contract or other sources ofobligation and the common sense in the transaction.
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Moral cod and Law 2020103Conclusion
For Achieving World Peace

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Moral cod and Law 2020104

Conclusion (1/6)
Contract and non-contractual obligations
 So far, the center of property law has been placed in contract
law, and the business administration (Golden rule), tort
(Silver Rule), and unjust enrichment (Bronze Rule), whichwere taken up at the beginning of this lecture’s issues, havebeen placed after contracts in the our legal code as noncontractual obligations.
 And, in the ordinary lectures, it was not rare that business
management, tort, unjust enrichment were lectured after thecontract.
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105

Conclusion (2/6)
Non-contractual obligations and morality
 However, when we focus on moral code, it is gradually
becoming clear
 that non-contractual obligations (business management, tort, andunjust enrichment) dealing with the Golden Rule, the Silver Rule,and the Bronze Rule are rather important, and that reasonable contracts with sufficient moral code (e.g. Nonmandatory rule of contract) should be kept,
 on the contrary that unreasonable contracts which favor only one
party and impose severe responsibility on the other party need not
be kept.
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Moral cod and Law 2020106

Conclusion (3/6)
New type of contract law
 For example,
 Article 10 of the Consumer Contract Act, which reflects the recent theory ofcontract, and Article 548, paragraph 2 of the Civil Code, which was revised recently,
provide that

 "any clause which restricts the rights or aggravates the obligations of
the other party and which is found to be unilaterally harmful to theinterests of the other party, contrary to Article 1, paragraph 2 [theRule of Faith], shall be deemed to be a failure to agree [null andvoid]".
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Moral cod and Law 2020107

Conclusion (4/6)
Contractual justice In other words, it has becoming clear that the businessadministration, tort and unjust enrichment, formed on thebasis of the moral code, lie behind contracts, and that
unreasonable contracts which ignore these norms are invalid
and do not need to be kept.
 This trend has attracted attention as a check on the excessive“freedom of contract” from the perspective of “contractual
justice”.
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Moral cod and Law 2020108

Conclusion (5/6)
Harmonization of Morality and Law
 In that sense, the purpose of this lecture is also an attempt toreevaluate the moral code on which the legal norm is based,
and to restore and reconstruct the relationship between law
and morality.
 This is because the purpose of law is the peaceful resolutionof disputes, and in order for the settlement to be acceptableto both parties, to experts, and to the general public, it isultimately necessary that the settlement also conforms to themoral code.
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109

Conclusion (6/6)
My hopeIt is my sincere hopethat the world of morality and the world of law,which have been at odds with each other up until
now, will come to a compromise,and that various disputes will be resolved peacefully
through repeated efforts to restore harmony between
the moral code and the law.
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Moral cod and Law 2020110

Appendix
 Tips of Teaching Law
 Japanese Law Translation
 http://www.japaneselawtranslation.go.jp/law/ Civil Code of Japan (Part 1-3), Revied version
 Civil Code of Japan (Part 4-5)

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Moral cod and Law 2020111

Appendix
Tips of Teaching Law (1/2)
 Teaching Method
 Work out your Teaching Plan.
 Reduce that plan by half.
 On half for lecture and another half for practice (ex. Students’
Presentation).

 Teaching is Learning You have to study before teaching.
 Teaching is equal with learning and reporting before an audience.
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Moral cod and Law 2020112

Appendix
Tips of Teaching Law (2/2)
 Don’t teach too much.
 Let students more practice than teach.
 Then they will learn by themselves.

 Teach basic idea through solving one of the most difficult
problems.
 When student can solve such a difficult matter, she/he mastered
basic ideas naturally.

 Try to become the most excellent teacher.
 Imitate her/his（e.g. Prof. Kagayama’s） methods first.
 Create new methods after your experiences.
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Moral cod and Law 2020113

Reference
 "A way of thinking" of lawyer

 How to debate

 Rudolf Von Jhering (translated by Kosuke
Kobayashi and Hirosawa ) "Struggle for right " ,(original 1872) Nippon Hyoronsha (1978).
 Chaïm Perelman (translated by Eguchi Misumi)"Logic of lawyer - - new rhetoric-- ", Bokutakusha (1986).
 KAGAYAMA Shigeru, “Modern Civil Code ofJapan -- Introduction and learning method of
Civil law of Japnan -- ”, Shinyama-sha ( 2007).

 Approaching to human nature NHK Special crew, " Human -- Why do Homosapiens become to humans? -- “, Kadokawa
Shoten (2012).

2020/12/17

Aristotle (translated by Totsuka Shichiro), "Public
speaking" Iwanami (1992).
FUKUZAWA Kazuyoshi, "Lessons of discussion "NHK life who Shinsho (2002).
IWATA Muneyuki, "Rule book of discussion",
Shincho Shinsho (2007) 206 pp.
Stephen Toulmin (translated by Todayama
Kazuhisa , Kazuyoshi translation Fukuzaw ), “A
technique pf discussion, (Stephen Toulmin, "TheUses of Argument", (1958, 2003)) " Tokyo Shoseki( 2011).

Moral cod and Law 2020114