Civil Law of Japan
Shigeru KAGAYAMA
Emeritus Professor of
Nagoya University
Boissonade
2021/8/12

Tomii, Ume, Hozumi
Overview of Civil Law of Japan, 20211

Preface Self-Introduction
 History of Civil Code of Japan
 Current Situation of Civil Code of Japan

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Self-Introduction (1/2)
 I am a emeritus professor of Nagoya University and Meijigakuin University.
 17 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 School ofIntellectual Property Studies(correspondence course) in Kibi
International University of Junsei Gakuen.
 In addition, I am an intensive lecturer ofcivil law for international students at
Nagoya University Graduate School, and"Contract Law" at the Faculty of Law,
Meiji Gakuin University.
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History of
Civil Code of Japan As a part of the modernization of the Japanese legal system
 As a part of the movement to abolish exterritoriality which was imposed by theWestern Powers in 1850’s (and had finally abolished in 1899).
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Outline of the historicalbackground of Civil CodeFirst Draft ofGerman Civil
Code

1860

Japan-U.S.
Commercial
TreatyMaiji
Restration
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Contitution of
the Empire of
Japan

1870

1880

1890

Boissonade
comes to Japan
Boissonade
Civil Code

Second Draft
of German
Civil CoderevisedNew Civil CodeI, II, III

1900

abolition of
extraterritoriality

New Civil Code
IV, V

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Comparison of the Three Civil Codes→Tort, Business management

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GermanCivil Code

Pandekten
SystemCivil Codeof JapanBook 1

GeneralProvisions

Book 1

GeneralProvisions

Book 2

Obligation

Book 2

Real Property

Book 3Acquisition of
Property

Book 3

Real
Property

Book 3Obligation

Book 4

Security of
Obligation

Book 4

FamilyBook 4

FamilyBook 5

EvidenceBook 5

Succession

Book 5

Succession

Boissonade
Civil
Code

Institutional
SystemBook 1

PersonBook 2

Property

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Pandekten
System7

Current situation of
Civil Code of Japan
 Structure of Civil Code of Japan
 Frequency of application of articles of civil Code of Japan

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Structure of Civil Code of Japan
Civil
Code
of
Japan

Propertylaw
Part1: Generalprovisions
Familylaw

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Part2: Real Property
Part3: Obligations
Part4: Relatives
Part5: Succession
9

Frequency of application of civil law
by Japanese courts
Succession
4%

Relatives
5%

Torts
45%

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GeneralProvisions
14%

Contract
12%

Overview of Civil Law of Japan, 2021

Real right7%
Obligationin general
11%
Unjustenrichment
2%10Best 20 articles of Civil Code of Japan
from the view point of frequency of application(1945-2013)416 723541 95 601 711 110
1% 1% 1% 1% 1% 1%
703 2%

656
1%

770
1%

2%

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

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709
32%

1
5%

415
6%

715
8%

722
9%

710
18%

No. Article

Title of Article

1

Art.709

General tort law

2

Art.710Compensation

3

Art.722Comparative Negligence4

Art.715

Employers’ liability

5

Art.415

Non Performance

6

Art.1

General Principles

7

Art.719

Joint tortfeasor

8Art.90

Pubic policy

9Art.177

Transfer real estate10Art.612

Restriction of sublease

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1. General Provisions ofCivil Code of Japan
 Structure of General Provisions of Civil Code of Japan Objective of Civil Code of Japan (Art. 1, Art. 2)
 Validity of Juridic Acts
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Structure of General provisions of Civil Code
Part1
GeneralProvisions
Chapter1
CommonProvisions

Entities ofprivate rightObject ofprivate right

Chapter2 Natural Person
Chapter3 Moral Person
Chapter4 Things
Chapter5 Juridic Acts

Change ofprivate right

Chapter6 Calculation of periods
Chapter7 Prescription

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Common Provisions(Art.1-2) of Civil Law
of Japan at the top of general provisions

Civil
Law

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Part1
Chaper1
Commonprovisions

Art. 1（Restrictionof privaterights）
Art. 2（Objectivesof privaterights）

Conformity of private rights withpublic welfare
Restriction on freedom of contract
under the principle of good faithProhibition of abuse of rights
Realization of individual dignity
Essential equality between the sexes

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Objectives of Civil Code of JapanMy proposal of amendment of Civil Code of Japan Article1_a (Purpose ofCivil Code of Japan)
 The purpose of this Act
is to realize the dignityof individuals and theessential equality of thesexes by providing for,

 (a) the subject enjoying
private rights
 (b) the object of privaterights (c) the creation,
modification and extinctionof private rights.

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 Article1_b (Limitations of Exercise ofPrivate Rights)

 (1) Private rights shall conform to the
public welfare.
 (2) The exercise of rights and theperformance of obligations shall be carriedout in good faith.
 (3) No abuse of rights shall be permitted.

 Article2 (Standards for Interpretation)
 This Act shall be construed in accordancewith the dignity of individuals and theessential equality of the sexes.

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Validity ofJuridic Acts

Lack of
Capacity

Capacity ofthe parties

Causes ofInvalidity or
Voidability ofJuridic Acts

Lack ofauthority

Intention of
the parties
Content of
the JuridicActs

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Restricted
Capacity

Absence ofintention
Defective
manifestation
Violation of
public order
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Minor
Adult ward
under curatorship
under assistance
Unauthorised
agencyMentalreservation

Bad faith

Collusive
intention

Good faith

Mistake inelement

Good faith

Mistake inmotivation
Fraud
Compulsion
16

Relationship between grossnegligence and mala fide
Bona fide(in good faith)
Without
negligenceGrossnegligence
negligence

Mala fide(in bad faith)

Evaluate as mala fide andProtected in
not protected almost all
Protected
almost all
some cases but opponent is also malacasesfide cases
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2. Real rights
 Structure of Real rights
 Distinction between Real rights (Part2) and Claims (Part3)
 Relation ship between Sales Contract and Real Right
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Structure of Real Rights
Chapter 4 Superficies

Chapter2
Possessory
RightsPart2
Real rights
Chapter1
GeneralProvisions

Substantive
rightsUsufruct

Chapter 6 Servitudes

Chapter3
Ownership

Restrictive
real rights

Chapter 5 Emphyteusis

Chapter 7 Rights of Retention
Secured
Propertyrights

Chapter 8 Statutory Liens
Chapter 9 Pledges
Chapter 10 Mortgages

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Distinction between Real rights and Claims
ClaimsReal rights
PersonObligee

Con
-trol

Claim

ObligorCon-trol
Use, Profit
Realize, DisposeThings2021/8/12

Property
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Relationship between sale contract andreal right of land (1/2)
Article 555(Sale) A sale shall become effective when one of the parties
promises to transfer a certain real rights to the otherparty and
 the other party promises to pay the purchase money for it.

Article 176(Creation and Transfer of Real Rights)

 The creation and transfer of real rights shall take effectsolely by the manifestations of intention of the relevant
parties.

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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 shalltake effect solely by the manifestations of intention of therelevant parties.

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Relationship between sale contract andreal right of land (2/2)
Article 177(Requirements of Perfection of Changes inReal Rights concerning Immovable properties)

 Acquisitions of, losses of and changes in real rights
concerning immovable properties may not be asserted
against third parties,
 unless the same are registered pursuant to the applicableprovisions of the Real Estate Registration Act (Law No. 123
of 2004) and other laws regarding registration.

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

Seller

1st Sale contract

Registration

2nd Salecontract

2nd Buyer
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3. Relationship between
Law of Real property
and Obligation
 Dominant position of claims under modern law
 Extensive effect of claims on third parties
 Action directe
 Action paulienne

 Strong Power of Suretyship Real suretyship as preference
 Personal suretyship as strong liability
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Action paulienne
 Article 424(Obligee's Right toDemand the Rescission of
Fraudulent Act) Article 425(Effect of Rescission of
Fraudulent Act) (1) An obligee may demand the court
to rescind any juristic act which an
obligor commits knowing that it will
prejudice the obligee; provided, however, that, this shall not
apply to the cases where any person
who benefits from such act, or any
person who succeeds to such benefit,
did not know, at the time of such act or
succession, the fact that the obligee isto be prejudiced.

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 The rescission pursuant to the provision of thepreceding Article shall have an effect for the benefit of
all obligees.

 Article 426(Limitation Period of Obligee's
Right to Rescind Fraudulent Act) The right to rescind pursuant to the provision of
Article 424 shall be extinguished by operation ofprescription if not exercised within two years from thetime that the obligee acquired knowledge of the causeof the rescission. The same shall apply if twenty years
pass from the time of the act.

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Action paulienne(droit de suit: tracing right)
Monetary credit
Obligee “A”
EstateObligor “B”
Mala fide

Transfer
EstateTransfer
Estate2021/8/12

Overview of Civil Law of Japan, 2021

Mala fide
Beneficiary”C”
Mala fide
Beneficiary”D”
27Action Oblique and Attachment
Dividend is equal among obligees

Obligee A

Credit αCredit γ

Obligor B

Obligee D

Creditβ Non-performance of “B”
 Name of “A”
 Subrogate of “B”
 “A” exercises credit β2021/8/12

Obligor’s
obligor C Non-performance of “B”
 Name of “D”
 For sake of “D”
 “D” exercises credit β

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“Action directe” of a victim against
insurance company
 Security Act of the Automobile Accident Liability Art. 16 (1) A victim of automobile accident may claim for damages against insurancecompany of tortfeasor to the extent of the insurance amount.

Victim A

Damages

Tortfeasor
Btransfer

CreditObligee D

Insurance
Insurance

Insurance
Company C
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Act on Securing Compensation for
Automobile Accidents－Direct Action
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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“Action directe” of sub-lease contract
 Article 613 (1) (1) If a lessee lawfully sub-leases a leased Thing, the sub-lessee shall assume a direct
obligation to the lessor. In such cases, advance payment of rent may not be asserted against
the lessor.
 (2) The provisions of the preceding paragraph shall not preclude the lessor from exercising
his/her rights against the lessee.

Lessor A

Lessee B

Credit of
Rent

Sub-lessor

transfer

CreditObligee D

CreditCreditof subof
lease
subRent
lease
rent
Sublessee C

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Dominant position of claims under modern law
ClaimsReal rights
PersonObligee

Con
-trol

Claim

Secured Claims
Obligor

Claim

Secured
ObligeeCon-trol
Use, Profit
Realize, DisposeThings2021/8/12

Property
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Structure of Secured Property rights
Quantitative
strengthening
Secured
Property
Law：
Strengthening
Enforcement Power

2021/8/12(Personal
Securedrights)
Qualitative
strengthening（RealSecuredrights）

Increase
Responsible
Entities
Combining
Obligation and
Suretyship
De facto right ofpriority

Statutory right ofpriority

Overview of Civil Law of Japan, 2021

Suretyship
Joint and Several
Obligation
Defense of refusalof performance

Right ofretention

Priority right of
Repayment

Statutory
Lien

Priority Repayment
Right + Retention
EffectPriority Repayment
Right + Pursuit
EffectPledgeMortgage33

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

 Payment of Surety

ObligorObligor

Total
Payment

2021/8/12

Surety¥10Mil
1000万円SuretyTotal
Payment

ObligeeObligee

Both obligations are
extinguishedThe credit move from Obligee to Surety.
Obligation of Obligor not extinguished andexist for the purpose of reimbursement.

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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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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

Y1paid 600
against X
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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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4. Contract Law
 Flow of Contract

 Formation, Validity, Effectiveness, Performance of Contract

 13 Types of Cotracts
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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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Type of Contracts
Transfer
Ownership

gratisNo 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
Resolutionof dispute
2021/8/12

7. Employment
Completionof work

8. Work

Officework

9. Mandate

Depositionof things

10. Bailment

Organization

11. Association

Annuity

12. Life Annuity
13. Compromise

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Obligations outside Contracts→Comparative study Business Management (Benevolent Intervention in Another's Business)
 Unjust enrichment
 Tort2021/8/12

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5. Business Management→Comparative study Comparative study French law (as a part of Unjust enrichment) German law (as a part of Contract) Japanese law (one of the independent system in the extra contract) Case study
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Law of Management of Business Chapter 3 Negotiorum Gestio (Management of Business)) Article 697 (Management of Business)(1) A person who commences the management of a business foranother person without being obligated to do so ("Manager") must
manage that business ("Management of Business") in accordance with
the nature of the business, using the method that best conforms to theinterests 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,
or is able to conjecture that intention.
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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 tocompensate for damages resulting from the same unless he/she has acted in bad
faith or with gross negligence.

 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 rescue team] 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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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"Women should 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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6. Unjust Enrichment
A system for adjusting losses and gains from the perspective of fairness when one
party suffers a loss and the other a gain due to an event lacking a legal cause.

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Type of unjust enrichment
1. Generalunjustenrichment

2. Special
unjustenrichment

2021/8/12

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

failing to become

B. Redeeming
unjust enrichment

failing to become

C. Violating unjust
enrichment

failing to become

Overview of Civil Law of Japan, 2021

contract

Business Management

torts

46

Redeeming unjust enrichment (Art. 707)
Obligee has bona fide destroyed documentary evidence or has
relinquished any security or has lost his claim by prescription

ObligeeDifficulty ofRight in action
exercising the right

ObligorRedeeming
unjustenrichment

Third Party
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7. Tort Law
 General Tort Art.709: Single General Tort Art.719: Several and Joint Tort Specific Tort Art.714: Liability of person with duty to supervise person
 Art.715: Liability of employer Art.716: Liability of person who ordered work Art.717: Liability of possessor and owner for defect in structure on land
 Art.718: Liability of possessor of animal
 Art.723: Liability of defamation

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Difference between
Criminal law and Tort law
Criminal law（Legality principle: nul poena
sine lege)

The
other
type

Not
guiltyType of
Crime:
Battery

Punishment

General principle

Type of
Crime:
Assault

Civil law (Remedy)
Type oftorts:
Assault
The
other
type
Type oftorts:
Battery

General principle

Typology
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Types of tort law in the world→Comparative study

Type of
Torts:
Assault
The
other
type

No
RemedyType of
Torts:
Battery

RemedyFrench type

General principle

Roman or German typeType oftorts:
Assault
The
other
type
Type oftorts:
Battery

General principle

Typology
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French Civil Code(1804)→Comparative study Art. 1382 (Civil responsibility in general) → Art. 1240 New
article 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
par la 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
and damage.

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German Civil Code(1900)→Comparative study § 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 boundto compensate 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
des daraus entstehenden Schadens verpflichtet.

 Characteristics

 Limited list of rights: Pure economic loss is excluded

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Dynamic understanding ofgeneral tort law (1/3)
Intention or
negligence

DamageCausation

Incapability

ExcuseDamagesComparative
negligence

Extinctive prescription
2021/8/12

3 years from awarenessof tortfeasor

20 years from the accident

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Dynamic understanding ofgeneral tort law (2/3)
Intention or
negligence

Causation

DamageIncapability

ExcuseDamages

2021/8/12

Comparative
negligence

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Dynamic understanding ofgeneral tort law (3/3)
Intention or
negligence

Causation

DamageIncapacity

ExcuseDamagesComparative
negligence

Extinctive prescription
2021/8/12

3 years

20 years

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What is fault?
Illustration of Point of Due Care
140

Minimum pointof Social cost120

Care Cost

100
80

Expected Damage

60
Social Cost

40
20
0

2021/8/12

Point of due care
0

1

2

3

4

5

6

7

8

9

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10

56

Joint unlawful act
Article 719

 If two or more persons have by their joint unlawful act
caused damage to another,
they are jointly and severally liable to makecompensation for such damage; the same shall apply if it
is impossible to ascertain which of the joint participants
has caused the damage.
 2. Instigators and accomplices are deemed to be joint
participants.

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Fact of the “wine glass case”
Suppose there is poison of which fatal dose is 10mg.
"A" poured poison of 5mg, "B" poured poison of 4mg,
and "C" poured poison of 3mg into a victim's glass ofwine and then killed the victim.
It caused damage of 12 million yen to the bereaved
family (i.e. "10 mg fatal dose case" or "wine glasscase").
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“Wine glass case”
No use of “sine qua non” theory

2021/8/12

Total
Fatal dose:
10mg

Logical Type of cases

A

B

C

A∧B∧C

5mg

4mg

3mg

12mg

(A∧B)∨(B∧C)∨(C∧A)

7mg

6mg

5mg

18mg

A∨B∨C

10mg

10mg

10mg

30mg

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Combination between joint tort andpseudo joint and several liability
 In the past, it has been considered one of three tortfeasors
is responsible for the entire damages of 12 million yen.
 If one of tortfeasor's act was removed, then the results ofvictim's death did not occur.
 It was reason why each of tortfeasors was responsible for all
damages.
 And this responsibility has been referred to as a "pseudo(non-genuine) joint and several liability".
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Unfair result of
pseudo joint and several liability
 In the pseudo joint and several liability case, even if one of
the tortfeasors paid the total damages of ¥ 12 million forthe bereaved family of the victim, it has been impossible toobtain reimbursement for the other two tortfeasors
because his/her payment has been considered as a
responsibility of his/her own.
 This result is, however, unfair. Because two of tortfeasors
are completely acquitted, and then, there is no the joint andseveral liability, after all.
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Joint and several liability of joint tort
Therefore, at present, even in the pseudo joint andseveral liability case, when one of tortfeasors “A” paid
¥ 12 million against the bereaved family of the victim,“A” obtain reimbursement ¥ 4 million from B and ¥ 3
million from C.
The result is the same as the case which A, B and C
was borrowed ¥ 12 million in solidarity from creditors.
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Combination of joint tort and pseudo joint
and several liability still exsists
 Indeed, looking at the current state of the world, the liability of thejoint tortfeasors is believed not a genuine collective responsibility,
but a pseudo several and joint liability.
 The reason is that, the deep-rooted concept "sine qua non" theory iseven now, believed to be applicable to the case of joint tortfeasors.
 Once again, let us go back to "10 mg fatal dose case". In this case, it
is believed that the theory of "sine qua non" is applied and there is acausal relationship between act of each tortfeasors and the death ofthe victim, therefore, “A” is liable for all damages of ¥ 12 million.
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Logical calculation proved that “sine quanon” theory felt into contradiction
 Alone “A”, however, it is impossible to kill the victim.
 If “B” and “C” act jointly with “A”, then the result of victim's
death occurs ("A, B and C ⇒ Result" case).
 In other words, in a joint tort, the theory of "sine qua non"causes the serious error.
 Because, if "sine qua non" theory is applied to the joint
tortfeasors case, the phenomenon "A, B and C ⇒ R” casechanges into the phenomenon "A , B or C ⇒ R" case.
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History of theory of causationfrom factual and adequate to partial causation
 First, in "Thalidomide case" and "SMON case", these problems
solved with theory of factual causation "sine qua non".
 Second, "the birth of the incident killer case", or "wagoner case",adequate causation theory, have played a role in limiting the theoryof factual causation. At this stage, however, the theory of factual
causation have still survived.
 Third, in "the wine glass case", it became clear that the theory offactual causation committed a serious mistake, and theory of "partial
causation" led the correct result.
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Theory of partial causation by supported
by Bayesian statistics
 Indeed, the trend of the world has been dominated by not only thetheory of factual causation, but also by the theory of pseudo joint
and several liability.
 However, from now on, all the problems of joint tortfeasors will be
resolve by theory of partial causation combined with theory of joint
and several liability.
 Bayesian theory or Bayesian statistics theory will help the theory ofpartial causation with calculating the partial rate of causation or
partial contribution of tortfeasors.
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General structure of liability of joint tortfeasors
Suretyshipfor T2Contribution(real obligation)of T1

MutualSuretyship

Joint tortfeasor

Suretyshipfor T1
Contributionof T2

Joint tortfeasor

T1

T2

Victim2021/8/12

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8. Lawyers’ way of thinking
Legal Sylｌogism (Rules, Facts, Judgment)
IRAC (Issue, Rules, Argument, Conclusion)Toulmin’s art of argument

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IRAC: The way of legal thinking
 I: Issue Find legal issues among facts.

 R: Rules Find applicable rules to facts.

 A1: Application

 Apply rules to facts and deduct tentative conclusions.

 A2: Argument (Most Important) Argue with tentative conclusion pro and con

 C: Conclusion

 Draw final conclusion after rigorous argument.

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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

A
Argument

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Application

Application of Rules,
Tentative conclusions

Argument

Argument against / fortentative conclusions

Conclusion

Finding final conclusion

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Substantive and procedural law
syllogism

Major premise: The human is motal.
Commercial
law Socrates is a human.
Minor premise:(Specific law)
Conclusion: Socrates is motal.

• Legal syllogism• (1) Rule,• (2) Subsumption of facts under a rule• (3) Conclusion (judgment)• Rule is substantive law, subsumption andconclusion takes place according toprocedural law.
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From Syllogistic to Toulmin Diagram• Syllogism (Admit of no exceptions)• Major premise: All men are mortal.
• 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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Legal structure of mental reservationand its amendment
Current Art. 93
 Article 93 (Concealment
of True Intention)

[Principle: valid] The validityof the manifestation of
intention shall not be
impaired even if the person
who makes the manifestation
knows that it does not reflect
his/her true intention;
[Exception: void] provided,
however, that, in cases theother party knew, or could
have known, the true
intention of the person who
makes the manifestation,such manifestation of
intention shall be void.

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Amendment of Art. 93
 Article 93 (Concealment of True Intention)

(1) Principle: If a party’s manifestation is different with true
intention(i.e. lack of intention), then the manifestation is null andvoid.
(2) Exception: If the other party, however, did not know andcould have not known, the true intention of the one party, thenthe manifestation is not null and void but valid.
(3) Presumption: In order to protect the safety of transaction, if aparty who makes the manifestation knows that it does not reflect
his/her true intention, then it is presumed that the other party
did not know and could have not known, the true intention of
the person who makes the manifestation.
(4) Burden of proof: If the party who makes different
manifestation with true intention proves that the other party
knew, or could have known, the true intention of the party who
makes the manifestation, such manifestation of intention shall be
void, as a principle, provided in first paragraph.
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Ideal Structure of Articles
 Art. 49 CISG / Art. 541-542 Civil Code of Japan My proposal of amendment of Art. 770 Civil Code of Japan

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Art. 49 CISG
 (1) The buyer may declare the contract avoided: (a) if the failure by the seller to perform any of his obligations under
the contract or this Convention amounts to a fundamental breach ofcontract; or ←Common Law

 (b) in case of non-delivery, if the seller does not deliver the goods
within the additional period of time fixed by the buyer in accordancewith paragraph (1) of article 47 or declares that he will not deliver
within the period so fixed.
 ← Continental Law(German Civil Code)2021/8/12

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Condition of Termination of contract
in Code Civil of Japan
Article 542(Cancellation Without Demand)

Article 541(Cancellation After Demand) If one of the parties does not
perform that party's obligation, andthe other party demands
performance of that obligation,
specifying a reasonable period oftime, but no performance iscompleted during that period, theother party may cancel the contract;
 provided, however, that this does
not apply if the non-performance ofthe obligations upon the passage ofthe period is minor in light of thecontract and the common sense in
the transaction.
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(1) In the following cases, the obligee may immediately cancel thecontract without making the demand referred to in the preceding
Article: (i) if the performance of the whole of the obligation is impossible; (ii) if the obligor unequivocally manifests the intention to refuse toperform the obligation in whole; (iii) if the performance of part of the obligation is impossible, or if
the obligor clearly manifests the intention to refuse to perform partof the obligation and the purpose of the contract cannot be
achieved by the performance of the remaining part of theobligation; …



If a breach of contract by one of the contracting parties prevents the
purpose of the contract from being achieved, the other party may
terminate the contract.

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Prerequisite of Judicial DivorceArt. 770(Judiciaｌ Divorce)

My proposal of Amendment of Art. 770(1) Only in the cases stated in the following items
may either husband or wife file a suit for divorce: (1) Either husband or wife may file an action for
divorce only when there is a fundamental cause
making it difficult to continue the marriage.
 (2) In cases falling under any of the following items,
it shall be presumed that there is a fundamental
cause making it difficult to continue the marriage:









(i) if a spouse has committed an act of unchastity;(ii) if abandoned by a spouse in bad faith;(iii) if it is not clear whether a spouse is dead or alive
for not less than three years;(iv) if a spouse is suffering from severe mental illness
and there is no prospect of recovery; or(v) if there is any other grave cause making it
difficult to continue the marriage.

(2) A court may dismiss a suit for divorce if it finds
continuing the marriage reasonable taking into
account all circumstances, even in the case where
there is a cause listed in items (i) to (iv) inclusive of
the preceding paragraph.
2021/8/12(i) if a spouse has committed an act of adultely;(i b) if a spouse has committed DV(Domestic Violence).
(ii) if abandoned by a spouse in bad faith;(ii b) if wife and husband have been separated for morethan five years.
 (iii) if it is not clear whether a spouse is dead or alive
for not less than three years;
 (iv) if a spouse is suffering from severe mental illness
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Conclusion
 Can you explain in simple terms why the law is needed?
 What skills must a student of law acquire and practice?
 What is the ideal structure of a legal article that is easily understood by thegeneral public?

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What is the guiding principle of your life?
 1. Do for others.

 Do not do to others what you would not want done to you.←Tort law
 Actively do what others want you to do.←Business Management law

 2. Nurture yourself.

 Reversing the saying, "The more you like something, the more you like it,"realize that “you will only like it if you become good at it”, and strive tomaster the skill.
 "Continuity is power," so set a goal and make the necessary work a habit.

 3. Challenge yourself.

 Challenge yourself without fear of failure.
 If you fail, try again. If you cannot try again, make amends.

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How to learn the law?
Best way of learning is teaching Don’t teach too much, and give students time to teach.

 Reducing your teaching plan by half.
 With a half part, let students teach others(including teaching teachers).
 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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ReferenceJapanese Law
 Hiroshi ODA, "Japanese Law", Oxford Univ Pr(2011/11/7)
 Hiroshi ODA,"Basic Japanese Laws (Modern Japanese Law Series)" Oxford
Univ Pr (1997/10/9)
 Hiroyuki Kihara,"Tort Law in Japan", Kluwer Law Intl (2015/3/11)
 Richard Powell=Shogo HOTTA=Fathima Marikkar, "Law in Japan, Law in theWorld", Asahi Publishing Company (2012/1/31)
 Hiroo Sono=Luke Nottage=Andrew Pardieck=Kenji Saigusa,"Contract Law inJapan", Kluwer Law Intl (2018/12/5)

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