1. This article attempts to ascertain the conception of the “publlic welfare” through investigation of the principle of Treu und Glauben or the abuse of rights provided for in section 1 of the Japanese Civil Code. The problems to be considered here are what connection the principle of Treu und Glauben or the abuse of rights has with the amendments or collapses of the classical civil law, what bearing this problem has on the “benefit comparison” recently prevailing in Japan, and what relations there are between law and ethics in the problem concerned.
2. Surveying the researches ever made, the function of the principle of Treu und Glauben or the abuse of rights can be divided into two; one is the rule-embodiment which supplements the rules of the Civil Code, and the other the rule-creation which provides the means for adjusting the concrete benefits to meet the requirements of the new social relations even contra legem.
3. What made it necessary to embody the rule by the principle of Treu und Glauben or the abuse of rights? The fabric of the classical civil law was built up by Pandect Jurisprudence of the nineteenth century Germany, especially by Friedrich Karl von Savigny (1779-1861), its dominating idea being Willenstheorie. But the civil law contained the rule not adapted to such a theory and system, one of which was the principle of Treu und Glauben. Accordingly, this embodiment is that which supplements the civil code, prearranged from the beginning, and does not circumscribe the private autonomy.
4. What social meaning has the rule-creation by the principle of Treu und Glauben or the abuse of rights? In the first place, where it appears as clausula rebus sic stantibus, it plays a role of maintaing the essential equilibrium or securing the substantial justice. In the second place, what it carries out in the relation of immediate neighbors is an adjustment of the benefits of an equal ownership of adjacent lands. Recent large-scale urbanizations require the new rule-creation corresponding to the latest phases of neighboring relations. In our country, because of imperfection of the provisions concerning adjacent relations or for lack of the rules as to immission, it was made necessary to moderate the requirements of torts by the abuse of rights. And thirdly, in the relation of leasehold, it plays a transitional role of amending and abolishing the existing statute for the purpose of strengthening lease of land or house. If a new statute is enacted, this transitional role will disappear, but such a kind of the rulecreation will prevail in the future too.
5. Lastly, let us take up a group of cases peculiar to our country. They are Morinaga v. Kumamoto Electric Co. Ltd., 15 Tai-han Minshu^* 1481 (1936), arising from the defandant digging a waterway for generation of electric power under the plaintiff's land without his consent, Arimitsu v. Kochi Railway Co. Ltd., 17 Tai-han Minshu 2057 (1938), where the defendant company filled up the paintiff's land and constructed a bank for laying a railway without permission in spite of the plaintiff's repeated protests, Kobayashi et al. v. Nippon Electric Generation and Transmission Co. Ltd., 4 Sai-han Minshu^** 625 (1950), bearing on the plaintiffs being incapable of carrying timbers by water in the lower stream by reason of the decrease of flowing water alleged to be caused by the defendant's construction of a dam in the upper course, and Matsumoto et al. v. the state, 19 Sai-han Minshu 2334 (1965), the case in which the plaintiffs' claim for recovering of their lands within Itatsuke Air Base taken over by the Occupation was denied by the Supreme Court on account of the abuse of rights even though there is no contract of lease between the plaintiffs and the state after the Peace-Treaty came into effect.

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1. It is an urgent and important subject for the legal science to analyse the problems concerning the general clauses, an increase of which is one of the most characteristic features of the present-day legal phenomena. The tendency of this increase is most pronounced in the field of economic law. But as the general notion of economic law is not yet established, it is first of all necessary to determine the province. This article attempts to grasp the economic law as the whole body of laws securing the economic policies which are planned by the state power at the stage of state monopoly capitalism entirely to interfere in the economic process, and to analyse their objective content and function by relating the conception of the public good such as “public safety”, “public benefit”, “public welfare” and etc. to the general clauses, “the sound development of the national economy”.
2. Before the end of World War II, “the fair benefit of the industries concerned or those closely related thereto, or of the general consumers” in the provision of the Control of Important Industries Act, 1931 was regarded as the conception of the public good, which was emphasized as a substitute for strengthening and promoting the monopoly. Since Japan was rushed into the wartime economy system in 1937, although “precedence of the public interest” was stressed in order to bring the national economic power into full play for the purpose of conducting the war, it did not deny the pursuit of profits, but aimed at squaring the public good with the so-called national interest.
3. After World War II, our country executed the policies of economic democratization such as the dissolution of the big financial combines, the Zaibatsu, and the enactment of the Anti-Monopoly Act, the Elimination of Excessive Concentrations of Economic Power Act and etc. However, before they obtained the desired results, the legislations of economic democratization represented by the Anti-Monopoly Act was obliged to retire, because the revival and reorganization of the monopolistic capital were rapidly promoted and the amendments of the Anti-Monopoly Act were successively made with the conversion of the occupation troops' policies. Today the cartel legislations, the various acts regulating enterprises and so on are occupying the important parts of this field.
4. The economic laws with the object of the “public safety” take the form of regulating the enterprises of electricity, gas and so forth, and protecting the users, but the regulation of fees is left behind by the principle of profits under the license of the government and public offices, the prices being determined for the monopolistic capital and against the people in general.
5. The economic laws aiming at the “public welfare” have the object of regulating the nationalized enterprises, transportation businesses and etc., but in fact promote the development of these industries. The determination of prices are done on the principle of profits, the self-supporting accounting system, and the burden of beneficiaries.
6. With regard to the “public good” in the Anti-Monopoly Act, it has been the central issue of discussion and controversy in the field of economic law. In spite of the strong oppositions of many scholars, the Fair Trade Commission is going to make it a rule to “administer the law flexibly until the establishment of oligopoly system, and rigidly after it”, which is based on the idea of the government and the monopolistic capital that the benefits of the national economy including that of the common consumers and producers are important. As a result, the benefits of the general consumers are sacrificed to “the sound development of the national economy”.

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1. This paper aims at paying particular attention to the government and public labor law which contains a typical theory of the “public welfare” and which is exceedingly important indeed to the labor law and labor movement of contemporary Japan.
2. The Government Ordinance No. 201 based on the letter of Douglas Mac-Arthur to Japanese Prime Minister brought a drastic change to Japanese labor law and also to the notion of the “public welfare” prevailing before. With the incorporation of the Government Ordinance into the national law, the object and function of it have gradually been proved to be against the rights of workers.
3. Authorized by the judicial precedents of the Supreme Court, the thoery of the “public welfare” and the “servants of the whole community” made the theoretical foundation of restricting the rights and penetrated into the opinions of the lower courts.
4. On the other hand, however, the changes of economic conditions after 1959. the modernization of the government's policies towards the labor movement, the struggle of the labor unions for the ILO convention and etc. influenced the decisions of the courts of justice. Down in 1962, some of the lower courts delivered the opinions demanding the reconsideration of the meaningless theory of the “public welfare”.
5. Promoted by these changes of circumstances, on October 26, 1966, the Supreme Court in the state v. Sotoyamm et al., 20 Sai-han Keishu^*901 (1966), overruled the decision of March 15, 1963 of the highest court, ruling in effect that public service workers can go on strike without being penalized by law. This decision of October 26, intended to overthrow the old fashioned theory of the “public welfare” and modernize the way of posing limit to the basic rights of workers. In this sense, a vigilant watch should be kept on the function and development of the decision in the field of labor law.
* Saiko Saibansho Keiji Hanreishu (A Collection of Supreme court Criminal Cases)

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1. Recently criminal courts have increased subjectivism and uncertainty in decision-making by introducing the “public welfare”. This super-legal conception plays a very important role, because it attempts totally to settle not only the concrete conflicts in cases but also the contradictions among legal norms.
2. Let us analyse the judge-made logics on the conception of “obscenity”, which is the most sensible to every man's life. In the so-called “literature cases”, the courts, seeking its meaning in the natural law to find the principle of “unpublicity of sex”, which they regarded as a universally accepted idea, denied the “freedom of speech” on the ground of the “public welfare” as the transcendental natural law, in so far as the freedom conflicts with “obscenity”.
The myth of the “public welfare” as the transcendental natural law has come to be unable to maintain its original power, under intensificating contradictions of the social structure. For example, in the cases concerning “freedom of speech” such as handing of leaflets or a demonstration parade, the courts, especially the lower courts, have a tendency to give a meaning to the conception of the “public welfare” in comparison between the “exercise of rights” and the “public interests” to be damaged by it. Thus, the “public welfare” has become a more relative and subjective conception, increasing its uncertainty and ideological meaning all the more.
3 The relativization of the “public welfare” is remarkable in the labor cases which reflect most clearly a class antagonism. The Supreme Court, in the case of the state v. Sotoyama et al., well known as that of Zentei (Japan Postal Workers Union), overruled the hard-headed decision of March 15, 1963. However, the court intended to restrict a strike in the name of the “public welfare”, comparing the “exercise of workers' fundamental rights” with the “interests of the national life as a whole”, and furthermore to punish a political strike and then to restore the punishment of such a strike as brings “a grave confused conditions to the national life”.
4. The development of the “public welfare” from the transcendental natural law to the relative notion has, nevertheless, a progressive and effective aspect within a given meaning. But the relative “interests” are indefinite, and the scientific estimation of these interests is nearly impossible. The increasing contradictions of the social structure will more and more enlarge and intensify such a tendency. Thus the relativized conception of the “public welfare” will be destined to ruin.

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