On the Process of Change from Kankai Conciliation to Tokusoku Mahnverfahren in the Meiji Era
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概要
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Unlike the Western legal system of the late 19th century where the emphasis was soundly based on the importance of making decisions, in the Japanese legal system in the same periods, Kankai conciliation played more important role.<BR>The main purpose of this paper is, therefore, to analysis the importance of Kankai within the Japanese legal system, and the process of evolution from Kankai to Tokusoku Mahnverfaren, which started in 1891, in regard to importance and reasons of evolution.<BR>Dispute resolution from the 1875 to 1890 were mainly based on Kankai, and approximately eighty percent of the litigation was resolved by Kankai. The other twenty percent of the litigation was solely based on adjudication. Kankai was largely in favor of the defendant, being able to assert claims on an equal standpoint against the plaintiff. The judges conciliated both interveners, and when the defendant did not accord, the plaintiff had to newly bring an action.<BR>This process was, however, greatly changed from the 1890s onwards with the introduction of Tokusoku Mahnverfaren system of dispute resolution. The plaintiff was to put forth his claim to court which would then make a decision without hearing the defendant's opinion.<BR>This procedure was different from that of Kankai where there was communication between the plaintiff and the defendant.<BR>This change in the process of dispute resolution in Japan did not take place mainly as a result of the introduction of German Civil Procedure (Zivilprozessordnung vom 30. Januar 1877). It was rather a result of the way in which this law was interpreted and transmitted in drafts form to the courts which played a greater role in the transition stages which took place from about 1886 to 1890. In this period, traditional Kankai declined in popularity, and generally speaking the process of dunning in litigation was generally taken by the courts. The judgment record in Osaka District Court gives authenticity to this idea. Kankai had changed its own procedure to dunning. It seems reasonable to suppose that Tokusoku wasled from the Kankai's reform and the German Civil Procedure. It was forced to yield in the end tothe more efficient and cost-effective system of Tokusoku.
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