Legal History Review
Online ISSN : 1883-5562
Print ISSN : 0441-2508
ISSN-L : 0441-2508
Volume 1957 , Issue 7
Showing 1-50 articles out of 57 articles from the selected issue
  • Yoshiyuki Sudo
    1957 Volume 1957 Issue 7 Pages 1-31,en1
    Published: March 30, 1957
    Released: November 16, 2009
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    The custom of giving estates especially field farms was quite popular in Sung period. There were some cultivating farm lands did not deliver them to the former possesor, but paid farm-rents. This was so-called pawn farm-rent system. In Sung period this was recognized as an unlawful act but generally it was practised in actual lives. When a farmer pawned his farm, he was liable to fail to pay his farm-rent on account of high rates. As the result bureaucratic land-lords changed tenant-contracts to sale-contracts in order to make up arrearages. In this way pawned tenancy was used by bureaucratic land-lords as expedient means. Thus this system was prohibited in Szu-China. However, in Sung. period pawners often deceived the proprietors and took away the farms in pledge. Sometimes they did not make contracts and snatched away farm lands after a certain period. It was made in practice at that time that a tenant plowed the farm land even after his debt was liquidated. There were also many tenants who gave up the land in pawn. In that. case the tenant was expected to pay the rent to the lender. He was not allowed to give up plowing the land with his own will.
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  • Toshiya Torao
    1957 Volume 1957 Issue 7 Pages 32-63,en2
    Published: March 30, 1957
    Released: November 16, 2009
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    As to the paddyfields allotment system prescribed in the Taiho-ryo (hereafter referred to as T-r) and the Yoro-ryo (hereafter referred to as Y-r), it is not too much to say that hardly anything is left to be argued. But, through minute examinations, several problems may be found awaiting solution. This paper aims at offering some solutions, though tentative on account of the poverty of the direct sources, on two prob-lemsamong them. Results are as follows:
    (1) So far the meaning of the rule "_??__??__??__??__??__??_" which is a part of kubun-jo _??__??__??_ (an article ruling the area of paddyfields to be allotted per capita, etc.) in Y-r-the existence of the same rule in T-r prior to Y-r having already ascertained-has generally been understood as follows :
    One who attains sixth calendar year in han'nen _??__??_ (the allotment year, once in every six years) is qualified for allotment.
    But according to my research the original meaning of this rule is like this :
    One who attains full six years of age in sekinen _??__??_ (the household register year, once in every six years) prior to every han'nen is qualified for allotment.
    (2) Dr. Noboru Niida once restored the following three articles in T-r which correspond to an article in Y-r, "_??__??__??__??__??__??_. (original note : _??__??__??__??__??__??__??__??_)._??__??__??__??__??__??__??__??_, _??__??__??__??__??__??__??__??_."
    "_??__??__??__??__??__??_."
    "_??__??__??__??__??__??__??__??__??__??__??_."
    "_??__??__??__??__??__??__??__??_, _??__??__??__??__??__??__??__??__??__??__??_."
    But, in spite of his effort, the third of these restored articles is not very clear in its meaning. In my view this is due to his inappropriate handling of sources. My own restoration is as follows :
    "_??__??__??__??__??__??__??__??_, _??__??__??__??__??__??__??__??__??__??__??__??__??_."
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  • Shizuo Sogabe
    1957 Volume 1957 Issue 7 Pages 64-89,en3
    Published: March 30, 1957
    Released: November 16, 2009
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    We can find two different forms in our ancient census registers which are kept in Shosoin (_??__??__??_). They are ; one is found in the census registers of Mino (_??__??_) which was made up in Taiho (_??__??_) 2, that the numbers of the each family are listed in letter divided man and woman. And the other is found in the census registers of Chikuzen (_??__??_)'s, Buzen (_??__??_)'s, Bungo (_??__??_)'s, and Shimofusa (_??__??_)'s, made up in Yoro (_??__??_) 5, that the family members are listed divided Kako (_??__??_) and Fukako (_??__??__??_). These different ways of description are the succesion of the Chinese ways ; that is, Mino's form are in succesion to West Liang, and Chikuzen's and others' are in the succesion to Two Weis. That can be made more plainly by comparing the registers themselves.
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  • Yaheiji Fuse
    1957 Volume 1957 Issue 7 Pages 90-111,en4
    Published: March 30, 1957
    Released: November 16, 2009
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    Nakahara-no-Syotei and Nakahara-no-Hantei who were supposed to be in the post of Myobohakase for about 30 years from 1160 or so, was one and the same person, and both of these two names, though written in different Japanese characters, should be pronounced as "Nakahara-no-Norisada".
    It was not "Norisada " that was appointed to the post of Myobohakase for the first time in the Japanese history, but it was this "Norisada" of the Nakahara family that started with the Sakagami family transmitting "Myobo-kagaku" by heredity.
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  • Einosuke Yamanaka
    1957 Volume 1957 Issue 7 Pages 112-130,en4
    Published: March 30, 1957
    Released: November 16, 2009
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    I We, Japanese, have had the custom of levirate marriage since a long time ago. Its common type is a junior levirate as it is called " ototo naoshi " in Japanese. It would not specially have a different character from the other marriages, if it were done by the complete willingness of the two parties ; a dead man's wife and her brother-in-law. However, it would be better to think that levirate marriage is given a special meaning by law, when it was prohibited, permitted in only a special case or permitted. This is the first reason why this work aims at levirate marriage.
    II Japanese Civil Code (1898) was enacted, having a powerful insistence, which the code should not take laws and customs of Common people in it, but the ones of Samurai, a back ground. Such an insistence bore its fruit in " Ie " system in the code, but it could not bear in a day.
    Meiji Reformatory Government tried to enforce laws and customs of Samurai on lives of Common people, under the rule of it, from the beginning of its existence. In spite of such an attempt of the government, the Civil Code (1898) had taken in it, not only laws and customs of Samurai, but also ones of Common people which is opposite to Samurai's. Some laws and customs of Common people were taken in the code so as to strengthen " Ie " system. It is important to study a process, in which such ones of Common people were taken in the code. This work is tried to investigate such a process.
    III In Tokugawa-Shogunate, law prohibited Samurai class from levirate marriage. It seems that this prohibition aimed at keeping up the orders of families of Samurai. On the contrary, Common people had customs of levirate marriages in order to support their properties and callings. And law seemed to permit such customs.
    In Meiji era, Reformatory Government perfectly prohibited levirate marriage and the other similar ones by Act of " Dajokan " on the 8 th of December in the 8th year of Meiji (1875). It may be said that this prohibitory act was one of the laws of Samurai, the government tried to enforce on lives of Common people, and of the policies so as to keep up the orders of their families as counter-plans against the bad things of those days. This act, however, have had contradictions ; it stresses the marriage customs of Common people to support their properties and callings, and decreases their capacities for paying taxes in the end. And there was no way but removing this prohibition in order to dissolve such contradictions.
    IV The movement into such removal of this prohibition began to appear in about the last half of 15th year of Meiji (1882). Then after, levirate marriage was becoming to be permitted step by step. At the first step, it was permitted so far as the government admitted the case specially. The case for the government to permit it specially, was one, in which property or calling of a family could not be supported, unless a levirate marriage was done. Such a change of attitude of the government towards levirate marriage had reflected the change of its policy. At that time, the government could not help changing its policy into ones which support properties and callings of families of Common people. Because " the Fights against the Government for Freedom and Human Rights of Common people" had rooted in the poverties which were due to the in-solvencies of the people, their insolvencies were owing to former policies of the government.
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  • Akira Sugitani
    1957 Volume 1957 Issue 7 Pages 131-153,en6
    Published: March 30, 1957
    Released: November 16, 2009
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    The Meiji government abolished the feudal systems, amended the land tax law and created modern landownership, in the process of centralization of political power. At that time, judicial cases about allowed-landownership of village headmen happened. The landownership of village headmen (landowners in the Shogunate regime) was established by the Meiji government. In the process that judicial power was separated from administrative power and became independent, it is substantiated that administrative actions were protected and strengthened by exercise of judicial power. Thus, these landed classes acquired the economic base (limit of electoral eligibility by property), the leadership of local autonomy. The above and the attitude of Meiji government toward landownership are mentioned.
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 154-181
    Published: March 30, 1957
    Released: November 16, 2009
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  • Fumio Unabara
    1957 Volume 1957 Issue 7 Pages 182-209,en7
    Published: March 30, 1957
    Released: November 16, 2009
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    The fiction theory is probably that most widely held by lawyers who practise or study the English legal system. The advocates of the fiction theory maintain that an incorporated association has no real existence but that the law, by a dogmatic fiction, treats an association, when incorporated, as though it were an existing entity and attributes to this fictious being legal rights and duties. That theory was promulgated by Coke and Blackstone. It is essentially a product of the feudal structure of medieval society, for the fiction theory and the concession theory flowed together. The rigidity of the common law was the other foundation of that theory.
    The rise of capitalism and the prosperity of companies lean towards the real personality theory. In particular, the old traditional dogmas have been discarded under the influence of equity. The realists insist that an association is a reality and that, when incorporated, it can have rights and duties and that incorporation is merely the recognition by the state of this fact. This theory served simplification of business transactions.
    The non-entity theory grew up behind a screen of trustees or through the co-ownership doctrine of partnership. The external wall of trustees was kept in good repair and the aggregate theory of partnership stressed the individuality. The proponents of the non-entity theory are not interested in the question of whether or not an association is a reality. According to their conception only human beings can have rights and duties, and where an association is incorporated, rights and duties are in the human beings who are its members, although as a matter of convenience, they are spoken of as being in the incorporated entity.
    In conclusion, corporate theories have been consistently maintained by artificial and technical fiction and whole theories developed aiming at equity and the needs of the times. In other words, English law expect that organized group will be reduced to the natural person, that is, right-and-duty-bearing unit. If we must find a fundamental idea of corporate theories, in Anglo-American law, it is relation, not will.
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 210-214
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 214-216
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 216-218
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 218-219
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 219-222
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 222-223
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 223-225
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 225-226
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 226-228
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 229a-230
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 229
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 230-231
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 231-232
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 233-234
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 234-235
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 235-236
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 236-237
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 237-238
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 238-239
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 239-240
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 240-241
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 241-245
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 245-246
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 246-247
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 247-248
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 248
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 248a-249
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 249-250
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 250-252
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 252
    Published: March 30, 1957
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    1957 Volume 1957 Issue 7 Pages 253
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 253a-254
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 254-256
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 256
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 256a-257
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 257-258
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 258-259
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 259
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 260-261
    Published: March 30, 1957
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 261-262
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 262-263
    Published: March 30, 1957
    Released: November 16, 2009
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  • [in Japanese]
    1957 Volume 1957 Issue 7 Pages 263-264
    Published: March 30, 1957
    Released: November 16, 2009
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