Japanese-Chinese Civil Law Research (Volume 3)

Author: Qu Tao
Publisher:
Publish Date: 2005-06-01
Features: The adoption of foreign law in modern China began in the early 20th century. In 1902, Emperor Guangxu issued an edict: "Adopt foreign laws and revise legal codes." The Legal Drafting Commission was established to oversee the drafting of legal codes. In 1906, Legal Drafting Minister Shen Jiaben sent Vice Ministers Dong Kang and others to Japan to study judicial and prison systems, and invited the renowned civil law scholar Mei Qiancilang to China to teach and assist in drafting the Civil Code. Due to certain reasons, Mei Qiancilang could not accept the invitation and recommended Matsuo Yoshimasa, a judge at the Tokyo Appellate Court. At the same time, other Japanese scholars invited to China included Professor Okada Kotaro of the Imperial University's criminal law department, Minoru Kogawa of the Ministry of Justice, and Professor Shitami Katsutaro of the Imperial University's commercial law department. Matsuo Yoshimasa came to China in that year and took up the position of a civil law instructor at the Capital Legal Academy. In 1908, the drafting of the Civil Code began, adopting the five-branch system of the German Civil Code. Matsuo Yoshimasa drafted the General Provisions, Property Rights, and Obligations sections, while the Legal Drafting Commission, with three graduates from the Central University of Japan—Gousho and others—drafted the Family and Inheritance sections. It is evident that modern Chinese civil and commercial law and the study thereof have benefited greatly from Japanese civil and commercial law and the study thereof. Since the reform and opening-up, civil and commercial legislation, such as the Contract Law of 1999, has also drawn heavily on Japanese legislation and scholarship. The ongoing drafting of the Civil Code should particularly emphasize the valuable experience accumulated by Japanese civil law over more than a century. Therefore, we have connected with academic colleagues to establish the China-Japan Civil and Commercial Law Research Association, a purely civilian organization, aiming to promote comparative studies on China-Japan civil and commercial legislation, scholarship, and case law, enhance academic exchanges between Chinese and Japanese civil and commercial law scholars, and facilitate the timely publication and dissemination of research findings. We have also launched a series of publications, China-Japan Civil and Commercial Law Research. At the outset of the third volume of China-Japan Civil and Commercial Law Research, we first introduce the achievements and main contents of this volume. The accomplishments of this volume are based on the annual conference of the China-Japan Civil and Commercial Law Research Association, held in June 2004, the third conference. The formal representatives at this conference numbered approximately 60, and there were two notable characteristics in the composition of the participants compared to the previous two conferences. First, a large number of commercial law scholars joined. Although the China-Japan Civil and Commercial Law Conference has always focused on the "civil" and "commercial" fields since its establishment, the first two conferences' collected papers revealed a one-sided emphasis on civil law. This year, significant progress was made in this regard. Second, the participation of Korean scholars. In April 2003 (during the peak of the "SARS" outbreak), I was invited to attend the 2003 conference of the Korean Civil Law Association and the symposium on the unification of Korean-China-Japan sales law. There, I had the opportunity to meet the association's president, Professor Lee Young-jong (Dongguk University), and Professor Gao Xianglong (Academician of the Korean Academy of Science and Technology, honorary professor of Chung-Ang University). Especially, Professor Gao Xianglong, with a background of studying at the University of Tokyo, had no language barriers with me. Additionally, as he had been a student of Professor Hoshino Eiichi, a former Japanese representative of the China-Japan Civil and Commercial Law Research Association, our conversations were even more engaging. At that time, I invited these two distinguished Korean scholars to attend the 2004 conference of the China-Japan Civil and Commercial Law Research Association. Despite their busy schedules, they took time to attend, adding great value to the association. The main scholars from Japan this year included the renowned civil law scholar Professor Hoshino Eiichi (Academician of the Japan Academy, honorary professor of the University of Tokyo, and special professor of the Institute of Law, Chinese Academy of Social Sciences), civil law expert Professor Yuasa Michio (Aichi Gakuin University), Professor Konishi Koji (Waseda University), and Associate Professor Tanaka Junko (Ain University); the renowned commercial law scholars Professor Uemura Tatsuo (Waseda University), Professor Zhou Jianlong (Chinese, Takushoku University), and Associate Professor Tanabe Genzo (); the famous Chinese law experts from Japan Professor Suzuki Ken (Hokkaido University), Professor Takizawa Toshiro (University of Tokyo), and Associate Professor Uda Katsunori (Nagoya University); as well as Professor Zou Hailin, director of the Commercial Law Research Office at the Institute of Law, Chinese Academy of Social Sciences, to enhance the atmosphere of commercial law research. There were also five Chinese scholars working and studying in Japan. The rest were domestic scholars and legal practitioners from Beijing, Shanghai, Guangzhou, Zhejiang, Shandong, Nanjing, and other regions. It is particularly noteworthy that many new scholars who recently returned to China and took up positions in universities were included in this conference, injecting vitality into the association's future development. This conference inherited the previous conference's format of separating presentations from discussions but extended the time for free discussion to the entire day, based on the experience of the previous conference. Once again, we were fortunate to have Ms. Yang Jing, a domestic top-tier simultaneous interpreter, attend to moderate the conference, saving time and improving efficiency in the presentation section. Over the two-day conference, scholars and experts engaged in in-depth discussions on hot topics in China-Japan civil and commercial law. As always, the conference was filled with an atmosphere of "academic sanctity," and scholars' pragmatic, rigorous, and unadorned academic attitudes ensured that the seminar reached a high academic level. The requirements for submitting manuscripts to China-Japan Civil and Commercial Law Research are also one of its main features: all manuscripts must contain content on China-Japan legal comparisons or an introduction to Japanese law. The 21 academic reports, papers, and translations included in this volume's collection of essays are all selected strictly according to the established requirements, and most of them are published for the first time in China. The content is extensive, covering general and specific topics in civil and commercial law, intellectual property, private international law, and newly formed specialized fields such as medical law. The China-Japan Civil and Commercial Law Research Association, starting from scratch, successfully held the third conference thanks to the strong support of the Law School of Fudan University as the host, and the cooperation of Dapeng Securities Co., Ltd., Peking University Press, and Shanghai Chenggong Law Firm. The active participation of Chinese and Japanese civil and commercial law scholars also played a significant role. On behalf of the association, we extend our heartfelt gratitude to the host institution, the funding organizations, the scholars who actively participated in the association, and the professors and graduate students involved in the conference. Additionally, we thank President Huang Min and Editor Jiang Hao of Legal Publishing House for their willingness to continue publishing this new series of essays despite the increasingly challenging academic publishing environment. We are especially grateful to Editor-in-Chief Xu Yuheng and the other editors for their hard work on the essays. Furthermore, we are grateful to Yang Wei, a graduate student from the 2004 class of the Graduate School of the Chinese Academy of Social Sciences, for her extensive work in proofreading the text of this volume. We also extend our thanks to all the contributors. As mentioned in the opening remarks of the first volume of China-Japan Civil and Commercial Law Research, the China-Japan Civil and Commercial Law Research Association and its edited series of essays aim to provide a platform for exchange between Chinese and Japanese civil and commercial law scholars and the legal profession. While we are gratified by the progress we have made, we also deeply feel the weight of our responsibilities. We sincerely hope that scholars and students who are committed to this cause can join our association and contribute their wisdom to its prosperity, working together to advance this field.