Legal History Review
Online ISSN : 1883-5562
Print ISSN : 0441-2508
ISSN-L : 0441-2508
Volume 1962 , Issue 12
Showing 1-50 articles out of 65 articles from the selected issue
  • Masao Shimada
    1962 Volume 1962 Issue 12 Pages 1-28,I
    Published: March 30, 1962
    Released: November 16, 2009
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    I am of opinion that a form of domination more advanced than the blood-ties was already in existence before the formation of Liao. How the offices and officials that were created with the exercise of public power were related to the government organization of Liao-especially, in this case, the "northern" central government organization, and how the Yeh-lü-_??__??_-family (imperial family) that established Liao coped with other families that could produce the executors of public power as the family gained the dictatorship and the hereditary right and established the regality-these two subjects are studied in this essay. The process of the establishment of the central government organization and its characteristic features were examined in relation to the former subject, and that hereditary officials organization in relation to the latter, which is in close contact with the process through which the royal authority of the imperial family extended in the course of the establishment of the " northern " local government organization, but this subject is not taken up again here as it was examined in the first part of my "Study on Social History of Liao." I do not assume in these studies that in the Liao dynasty the dictatorship and the hereditary right were established as the regality rose above a bureaucracy which was of the Chinese type, but I see that there remained many relics of the tribe state peculiar to the northern peoples. Liao may be said to be a body politic that had the Yeh-lü family at the head and was formed on a compromise between this family, and old and new forces. It will be the very edidence that Liao can not be regarded as a Chinese dynasty or a dynasty which was founded through the conquest of China. In Liao, the authorities supervising the affairs of several tribes, as well as the proper government machinery, had great weight in the administrative system of the central government, and an officials system called the hereditary government organization was established-these facts seem to be concrete manifestations of the above compromise. The family of hereditary but qualified officials -_??__??__??__??_- or gentleman -_??__??__??_- is not words meaning chinese noblemen or bureaucratic noblemen who were parasitic in the court, but it is a general term for the families among whom an old blood-relationship still played an important part while they obtained the exclusive possession of slaves and livestock.
    The characteristic features in the " northern" government organization can not be fully discussed here. In Liao-shi-_??__??_-, there are many offices and officials that we are unable to elucidate, and a lot of new other historical materials are left unexplainable. These problems require further examinations before I set forth my opinion on them in my " Supplementary Studies on the Governmental Officials in Liao-shi " (a tentative title) to be published later.
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  • Yoshiro Kawahara
    1962 Volume 1962 Issue 12 Pages 29-52,II
    Published: March 30, 1962
    Released: November 16, 2009
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    In the period of the northern Sung dynasty, the production of salt in Huai-nan-Lu reached the highest level, and a large amount of salt interest was the resources of the country. In the early Sung dynasty, there was already the monopoly system of it.
    Under the monopoly system the direct producer was apportioned his own liability, and as the reward, he was given Pen-chien (_??__??_) by the government. But the amount received was so small that they could only maintain the lowest standard of life.
    The government monopolized the salt interest under this system. It was shown by the fact that the selling price by the government was ten times higher as compared with the buying price from the direct producer.
    We find here the reason that the benefit of Pen-chien (_??__??_) was small.
    In addition to these circumstances, the issue of Mo-ku-chao (_??__??__??_) caused divestment of salt interest by the commercial capitalists.
    This was a heavier burden to the direct producer. As a result, the life of the direct producer was very hard.
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  • Akira Oae
    1962 Volume 1962 Issue 12 Pages 53-99,II
    Published: March 30, 1962
    Released: November 16, 2009
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    It is certainly understood that a landpossession system began to develop after the 8th century in Japan. Then, the private lands called ‘shiryo’ rapidly came to prevail in lands owned by the state (koryo _??__??_) and manor (shoen _??__??_) especially after the 10th century. This ‘shiryo’ was developed through the land-revolution caused by some social or economic circumstancies of the time, and it was the land which bureauctrats of the central government or ‘kokushi’ (_??__??_ district chief) who had settled down in a district, or ‘gunji’ (_??__??_ county chief) obtained by reclaiming the state land, and as a result of their reclaiming their possession of the land was recognized by the nation. They made farmers cultivate their land, established economic foundation, formed a body of warriors whose families were settled in the district. Then, they put most of their land under nominal vassalage to the arristocrats or priests, making themselves real administrators of their manors. They still owned the rights and the interests of the land under the authority of ‘Ritsu-Ryo’ (_??__??_) system. Those land owners were called 'Kaihotsu Ryoshu, (_??__??__??__??_ lords of reclaimed land), and their land later came under the protection of the local military leader, and thus the feudal vassalage system was established.
    Meanwhile, there was one more type of land-possession besides that of ‘shiryo’ that of small land holdings called ‘Tsukute-da’ (_??__??__??_), perhaps based on the ‘Harita’ (_??__??_) of previous ages ; and the possessors of these lands were therefore the farmers. There were two kinds of ‘Tsukute-da’, one being newly reclaimed land (Nagatsukute-da _??__??__??__??_), and the other the farming land of a lord of the manor (Ukesaku-chi _??__??__??_). Thus so-called rights of ‘shiryo’ belonged to the farmers, and the farmers who possessed such land had the right of buying and selling the land. In the middle ages, these ‘Tsukute-da’ came to be called ‘Myo-den’(_??__??_) and ‘Myo-shu’(_??__??_) or the owner's competency of ‘Myo-den’ was strongly admitted by authorities whether it was of manor or of the state land. Among the owners, some stronger ‘Myo-shu’ made the tenant farmers cultivate their ‘Myoden’ to get its land rent, and became ‘Gokenin’(_??__??__??_), vassals of ‘Shogun’ (_??__??_) by doing him homage, or became gokenin's attendants, ‘Rodo’ (_??__??_), and thus were included in the feudal vassals.
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  • Kenji Maki
    1962 Volume 1962 Issue 12 Pages 100-148,III
    Published: March 30, 1962
    Released: November 16, 2009
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    According to the " Writings of the Wa People " (_??__??__??_), of the " Record of the Gi Dynasty " (_??__??_), there were in the second and third centuries many small states of the old Japanese, which were ruled by a common king co-elected by them, and among the common kings Queen Himiko (_??__??__??_) was most famous. About the real land where the states were situated it has been disputed for many years, but the accurate reading, on which the author has written in recent years, reveals that they were in Kyushyu. The intention of this paper is to make clear the social and legal characters of those small states and of the " Queen State ".
    With this intention the author has examined the communities and states of the Mongolian races together with the " Queen State ", because the " Writings on the Wa People " is the last part of the writings on those Mongolian races. The two races, Ugan (_??__??_) and Sempi (_??__??_), in Inner Mongolia, which were composed of many primitive tribes, were normadic peoples, and did not constitute any sort of a state. The three wild races, flare (_??__??_), Yoso (_??__??_) and Kai (_??_), which inhabited on the side of Japan Sea, were not normadic, but any tribe of them did not reach the stage of having a state either. The races of Kan (_??_), who-were in the southern half of the Corean Peninsula, were divided into three blocks, Bakan (_??__??_), Shinkan (_??__??_) and Benkan (_??__??_), and each of them was a group of numerous states constituted by tribes. The largest one among them, Bakan, which contained fifty-four states co-elected a common king, Shin wo (_??__??_). He was perhaps the king of a confederation, which extended its sphere afterwards over the half of the states of the other two Kans. But it was too feeble to resist an attack of the northern enemy.
    When we compare the states of the Wa people with such conditions of these Mongolian races, it is quite clear that those were also the states of so many tribes, and the " Queen State " was the confederation of those tribal states. It was stronger in unity than the confederation of the above-stated Shin wo, although it contained various tendencies of collapse. It has been usual until now to take the " Queeu State " to be either the beginning of the Empire of Mikado or a single monarchy in Kyushyu. But such opinions are completely erroneous.
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  • Yaheiji Fuse
    1962 Volume 1962 Issue 12 Pages 149-156,IV
    Published: March 30, 1962
    Released: November 16, 2009
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    There are in " Ryo-no-shuge " two places where " Dosetsu " and " Dohaku " were mentioned. The word " Do "here refers to Koremune-no-Naomune, " Dokei " or Do-elder-brother of Koremune-no-Naomoto who compiled " Ryo-no-Gige." It has been believed that Naomune and Naomoto were brothers, the former being elder and the latter younger. But, thinking that they were in fact cousins and were called Do-Kyodai or Do-brothers, as they met in a Do or a house whenever anything happened, the writer in this treatise first stated Naomune's legal views and then tried to clarify the significance or the reason why Naomune took up in " Ryo-no-Shuge " private records and personal views in general that existed very few after "Ryo-no-Gige" had been published and distributed.
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  • Kiyoshi Shimotomai
    1962 Volume 1962 Issue 12 Pages 157-167,V
    Published: March 30, 1962
    Released: November 16, 2009
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    In the Tang period there was chih (_??_) in the official system (_??__??__??_). (The word chu-chih (_??__??_) means all kinds of chih (_??_).) Chih was a name of the people who had special technical abilities and worked at each government office The position-class of it was in accordance with Liu-wai-kuan (_??__??__??_).
    In the official system of our RYO code (_??__??_), there was a post called TOMOBE (_??__??_). This is a name of the people who belonged to a government office also with special technical abilities. Their position-class was ZONIN (_??__??_). There were _??__??__??_, _??__??__??_, _??__??_, _??__??__??_, _??__??__??_, etc. in the system of chih, and, in the system of TOMOBE there were _??__??__??_, _??__??__??_, _??__??__??_, _??__??__??_, _??__??__??_ etc. Those two are very similar to each other both in contents and in expression. The people of TOMOBE were engaged in all kinds of manufactures, but when they could not do alone, as they had the people called ZOKO (_??__??_) and SHINABE (_??__??_) under them, they used ZOKO and SHINABE. This connection between TOMOBE and ZOKO or SHINABE is very similar to that of chu-chih and tsa-hu(_??__??_) or kuan-hu (_??__??_) in the Tang period. Comparing those matters described above, we can find that our system of TOMOBE, ZOKO and SHINABE in RYO code had been transferred from the system of chu-chih, tsa-hu and kuan-hu in a code of Tang Dynasty.
    Before the Reformation of the Taika era' TOMO-NO-MIYATSUKO (_??__??_), a chief of BE (_??_) which was a group of the people of special technical abilities, had serv-ed at the Imperial Household with the people of this group of BE. (BE (_??_) was also called SHINABE (_??__??_).) But at the time of the Reformation of the Taika it was abolished, and, as Chinese RITSURYO code introduced from China was established in Japan, TOMONO-MIYATSUKO came to be named TOMOBE and newly started as ZONIN in official system. SHINABE came to belong to each office with the people of ZOKO that system was also newly transferred from China. I think that the system of TOMO-NO-MIYATSUKO and SHINABE before the Reformation of the Taika era was not inherent in Japan but was influenced by the system of China. The reason of it is that pu-ch'ü (_??__??_), an origin of our BE, mainly came from the name of a supply section of people (the lowly), who belonged to a powerful clan of the Wei (_??_) Dynasty and the Chin (_??_) Dynasty, pu-ch'ü; and after that, a system of Liu-wai-kuan was made in Northern Wei (_??__??_);a system of chu-chih which accorded with Liu-wai-kuan was established in the Zui (_??_) Dynasty and in the Tang Dynasty ; and it is said that kuan-hu and tsa-hu which consisted of the people attached to each government office as exclusive laborers came to be recorded in history about a time of the Chin Dyn asty, and those systems were established in the last days of Zui Dynasty or at the time of the Tang Dynasty ; then, comparing changes of the system of Japan with those of China, we can see that the system of TOMO-NO-MIYATSUKO and BE (SHINABE) before the Reformation of the Taika era were established under the effect of the system of the powerful clan and pu-eh'ü in China.
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  • Chikara Kamiya
    1962 Volume 1962 Issue 12 Pages 168-193,VI
    Published: March 30, 1962
    Released: November 16, 2009
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    The vacant succession system prior to the Meiji Civil Code was renovated when the Meiji era entered its teens.
    The ordinance (T. No. 41) issued by the Ministry of justice in the 11th year of Meiji declared an established principle that the bequeathed estate not inheritable should be held in trust by relatives, or, when no relatives were in existence, by kocho, without being transferred by kucho or kocho into the possession of the government on the extinction of family as in former days. Moreover, it provided that kocho was entitled to keep the estate for five years and that the Court should assume the charge of debt redemption if any, thus laying down the fundamental principle of administration and redemption of estates not inheritable.
    It was in the 17th year of Meiji that the exact date of family extinction and kocho's drawing up of an inventory were brought into enactment, and it was to follow next year that the administration of estate by the relatives should extend over five years as in the case with kocho, and that during this term a disposal of estate must necessitate an agreement of the Court.
    At and after the expiration of five years its management had to either be vested in the family council or be transferred to the government through kocho's hand. We have seen that the current civil law on the ultimate claim of the State on a bequest of the surplus (i. e. residuary) was originally patterned after this model of earlier times. It may rightly be concluded, therefore, that its prototype was moulded in the aforesaid period in the historical development of the law.
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  • Gentaro Haruhara
    1962 Volume 1962 Issue 12 Pages 194-206,VII
    Published: March 30, 1962
    Released: November 16, 2009
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    The system of compromise or conciliation, whereby cases in the civil procedure would be settled through mutual agreement between the two, had developed to a great degree in the Tokugawa era. In the civil procedure in this era no case could be taken up if a village officer would not certify that a compromise between the two was not effected notwithstanding his effort on his own responsability. This procedure was called " Hiki-ai " and its papers " Hiki-ai-gaki ". It is, I can say, the pre-conciliation system, whereby a village officer had settled many cases on his own responsibility before a petition was presented to a court.
    Even after a petition was presented, a judge was used to advise in person the mutual agreement, or to try to settle the case through designating a village officer as an arbitrator. Such settlement was called " Nai-sai " and such arbitrator Atsukai-nin ".
    My paper is written to make clear the principles of " Nai-sai " through the diaries by such " Atsukai-nin " charged with the settlement.
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  • [in Japanese]
    1962 Volume 1962 Issue 12 Pages 207-216
    Published: March 30, 1962
    Released: November 16, 2009
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    1962 Volume 1962 Issue 12 Pages 217-235
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    1962 Volume 1962 Issue 12 Pages 236-237
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    1962 Volume 1962 Issue 12 Pages 237-239
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    1962 Volume 1962 Issue 12 Pages 239-241
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    1962 Volume 1962 Issue 12 Pages 242-243
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    1962 Volume 1962 Issue 12 Pages 243-246
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    1962 Volume 1962 Issue 12 Pages 246-247
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    1962 Volume 1962 Issue 12 Pages 247-248
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    1962 Volume 1962 Issue 12 Pages 248
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    1962 Volume 1962 Issue 12 Pages 248a-249
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    1962 Volume 1962 Issue 12 Pages 249
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    1962 Volume 1962 Issue 12 Pages 249a-250
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    1962 Volume 1962 Issue 12 Pages 250-251
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    1962 Volume 1962 Issue 12 Pages 251-252
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    1962 Volume 1962 Issue 12 Pages 252
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    1962 Volume 1962 Issue 12 Pages 252a-253
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    1962 Volume 1962 Issue 12 Pages 253-254
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    1962 Volume 1962 Issue 12 Pages 254
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    1962 Volume 1962 Issue 12 Pages 254a-256
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    1962 Volume 1962 Issue 12 Pages 256-257
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    1962 Volume 1962 Issue 12 Pages 257
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    1962 Volume 1962 Issue 12 Pages 257a-258
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    1962 Volume 1962 Issue 12 Pages 258-259
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    1962 Volume 1962 Issue 12 Pages 259-260
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    1962 Volume 1962 Issue 12 Pages 260-262
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    1962 Volume 1962 Issue 12 Pages 262-263
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    1962 Volume 1962 Issue 12 Pages 263-264
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    1962 Volume 1962 Issue 12 Pages 264
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    1962 Volume 1962 Issue 12 Pages 264a-265
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    1962 Volume 1962 Issue 12 Pages 265-266
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    1962 Volume 1962 Issue 12 Pages 266-267
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    1962 Volume 1962 Issue 12 Pages 267-268
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    1962 Volume 1962 Issue 12 Pages 268
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    1962 Volume 1962 Issue 12 Pages 269-270
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    1962 Volume 1962 Issue 12 Pages 270-273
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    1962 Volume 1962 Issue 12 Pages 273-276
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    1962 Volume 1962 Issue 12 Pages 276-277
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    1962 Volume 1962 Issue 12 Pages 277-280
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    1962 Volume 1962 Issue 12 Pages 280-281
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    1962 Volume 1962 Issue 12 Pages 281
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    1962 Volume 1962 Issue 12 Pages 281a-283
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