Minpoten Ronso (Disputes over the Civil Code) (民法典論争)

Minpoten Ronso (disputes over the legal code provided for basic stipulation related to Civil Code) was the disputes whether to postpone or carry out the effectuation of the Old Civil Code (Act No.28, No.29 of 1890) in Japan from 1889 to 1892).

Disputes over the Penal Code and the Commercial Code were also made at the same time, and the Old Penal Code was totally revised and the effectuation of the Old Commercial Code was postponed. For this reason the disputes over the three legal codes were sometimes referred to collectively as 'hoten ronso (disputes over legal codes)'. As to disputes over the Penal Code and the Commercial Code, see Penal Code or Commercial Code, respectively.

East Asia Where No Civil Code Existed

Even in pre-modern Japan civil trials did exist, however, a systematic Minpoten was never prepared. To begin with, in the East Asian cultural area including Japan the people had no political rights and even only a few rights legally approved were premised on the absolutism of administration and orders of a ruler. Therefore, the ancient Ritsuryo law had 'ritsu' for the penal code, 'ryo' for the administrative law, but not law for the civil code. Such an idea did not change basically even in the shogunate system when civil suits increased due to activated trade and craft, and the judiciary system was entirely for performances of criminal trials, so that the people could not ask for trials as their own rights. Only in cases of civil problems which could not be solved by discussion (vis-a-vis) between the people concerned, civil trials were made in the name of arbitration as 'favor from the authorities', therefore, these trials were not an institution that would give the people legal aids.

However, when negotiations were started beween Japan and the allied western powers, the fact that Japan lacked Minpoten became one reason to justify exterritoriality of the western powers, so that in Japan from the end of the Edo period to the early Meiji period, the preparation of Minpoten was an urgent matter as one of political tasks to revise unequal treaties.

Vision of Minpoten in the Early Meiji Period

In the late Edo period some of shougun's retainers of Kaimei-ha Group (a group of people who advocated enlightenment) including Rinsho MITSUKURI, Joun kURIMOTO and others proposed preparing Minpoten on a model of Code Napoleon (French Civil Code), but the proposal was not realized because of the downfall of the Edo bakufu. Still, MITSUKURI completed its Japanese translation in 1874, spending five years after serving the new government.

About that time Shinpei ETO, who was the administrator of the Ministry of Justice and supported Rinsho MITSUKURI in translating the Code Napoleon, issued an instruction for the enactment of the Civil Code as early as possible; the Civil Code included reviews of the direct import of the Code Napoleon, and some drafts of the Civil Code were made mainly by the Daijokan (Grand Council of State) and the Ministry of Justice (these included the 'Minpo Ketsugi' (Civil Law resolution) in 1870, 'Kokoku Minpo Kari Kisoku' (Tentative Rule of Imperial Civil Law) in 1872, 'Shihosho Minpo Zengi' (all Justice Department resolutions on Civil Law) in 1872, and 'Minpo Kari Kisoku' (Tentative Rule of Civil Law) in 1873). Before long Rinsho MITSUKURI and Michiteru MUTAGUCHI completed a draft of Civil Code (called 'Minpo Soan in 1878'), however, Takato OKI, the then Minister of Justice was dissatisfied with its content like a copied version of Code Napoleon and rejected its adoption. In the meantime the Ministry of Home Affairs (Japan) (that dealt with registers and so on) and the Ministry of Agriculture (Japan) (that asked for early definitions of real rights and credit obligations), getting exasperated at the slow progress of the draft making by the Ministry of Justice, showed their own movement of studying the draft of Civil Code.

Enactment of Old Civil Code

For that purpose Oki gave an instruction mainly to Gustave Emile BOISSONADE, a French jurist, who made a great contribution to law education and lawmaking in Japan in 1880, to prepare a draft of new Civil Code. Although he was a Frenchman, he disagreed to the direct import of Code Napoleon, and asserted that Minpoten should include considerations of the domestic situation in Japan (Oki agreed to the idea, and in the same year and in 1883 'Zenkoku Minji Kanreirui-shu' (national civil customary) was complied based on the nationwide research of customary law related to Civil Code. Before long the draft of the Old Civil Code based on the draft which took nearly 10 years of preparation (however, articles corresponding to relatives and heirs in the present Civil Code were written by Japanese) was prepared and enacted and was made public in twice in 1890.

Disputes over the Civil Code

However, sufficient discussions were not made because the Civil Code was aimed at revising treaties and had completed the compilation before the Imperial Diet was established; therefore, disputes between Seko-danko-ha Group (people who advocated carrying it out) and Seko-enki-ha Group (people who advocated postponing the enforcement) began and the latter developed various criticisms. From an academic viewpoint the fact that the Old Civil Code was based on the thought of natural law, there arose criticisms from historical jurisprudence emphasizing a historical and racial nature of law, which included criticisms that the content of the Code would not fit Japanese tradition and customs including Japanese traditional family system.

In May, 1889 before the publication, the British Law Hogakushi-kai Association consisting of graduates from the University of Tokyo Faculty of Law presented "Hoten Hensan ni Kansuru Ikensho (written opinions on Compiling Legal Codes" in its spring assembly and decided that they should appeal to the Cabinet and the Sumitsu-in (Privy Council) to correct rapid compilation of legal codes. From the fact that this written opinion and the influence of the decision activated the discussions on the Civil Code and the Commercial Code, the written opinion and were substantially triggered the Minpoten Ronso (including the Commercial Code). Well-known theses published at that time by the Seko-enki-ha Group included "Hogakushi Kai no Iken-wo Ronzu" (Discussing opinions from the School of Law Alumni Association) by Rokuichiro MASUJIMA and "Minpo Soan Zaisan Hen Hihyo" (Critique on property ownership under the draft Civil Law) by Makoto EGI. On the other hand, theses by the Seko-danko-ha Group included "Horiseika wo Yomu" (Reading the Hori Seika law school Journal) by Shiro ISOBE and "Horitsu Hensan no Kahi" (The pros and cons of compiling laws) by Masao INOUE.

In November, 1980, the first Imperial Diet was opened, and when 'Shoho Jisshi Enki Seigansho (petition for postponing the effectuation of the Commercial Code)' was submitted because they could not correspond to its too early effectuation, the Imperial Diet decided to postpone the enforcement of the Commercial Code in January 1, 1991 to January 1, 1893, the same day of the effectuation of the Civil Code. The decision to postpone the enforcement of the Commercial Code led to disputes, and in 1891 Yatsuka HOZUMI said the following in his thesis "Minho Idete Chuko Horobu" (As civil laws are being introduced, loyalty and filial duty are being lost): 'Our country worships ancestors. It is a home of a family system. The authority and law were born in a family.', and 'the authority of a head of a family is holy and inviolable just as the spirits of our ancestors are holy and inviolable', neglected a right-duty relation by law and criticized the family law based on marriage which denied Japanese traditional patriarchal authority. This thesis is the one that attracted the most attention because of the title, and may be said to symbolize the disputes over the Civil Code.

In 1892, one year before the effectuation, the dispute over legal codes reached its peak: Seko-danko-ha Group, taking a firm stand on Japanese tradition related to the Emperor system, criticized individualistic Seko-enki-ha Group, while Seko-danko-ha Group put up an argument with the thought of French law-like natural law and the civil code theory. Moreover, the disputes, ranging from legal theories to contradictions of capitalist economy, national ideology and positioning of the national structure and so on and combined with the disputes over the Commercial Code, came to present a kind of political confrontation. However, more and more people supported the Seko-enki-ha Group, because of the then situation that in spite of peasants and landowners who were brought to ruin and local regions impoverished by Matsukata Deflation, and the appearance of businessmen with political ties who were rapidly increasing power by getting government properties cheaply, a negative part of free competition in capitalist economy, and the fact that in the Constitution of the Empire of Japan the Emperor system was adopted and the formation of the modern Emperor-system nation was on going.

In May of the same year a political settlement of the Minpoten Ronso was made in the third Imperial Diet. A bill of postponing the effectuation of the Civil Code and the Commercial Code were submitted by Tamotsu TAMURA, a member of the House of Peers, which caused heated arguments as to whether to carry it out or postpone it, but the bill passed the House of Peers by an overwhelming majority and the House of Representatives by a majority: Finally the Minpoten Ronso saw its settlement.

Subsequently in a newly-established Investigation Committee of Codes, Nobushige HOZUMI, Masaakira TOMII and Kenjiro UME, focusing corrections of the Old Civil Code and referring to the draft of the German Civil Code, drafted the present Civil Code (Act No.89, 1896).

The significance of the disputes was once regarded as an academic one; however, in fact, there were so many arguments just for objection that many people take the disputes mainly as political and sectional conflicts.

At that time, supporters of the Old Civil Code included Meiji Law School (now Meiji University) and Japanese-French Law School (now Hosei University), while the opponents included Tokyo Imperial University (now Tokyo University) and English Law School (now Chuo University).