Learning about humanity through civil law

2021.08.02

The Civil Code of Japan can be characterized as a body of laws providing solutions and guidelines for resolving the various troubles and disputes encountered in life, from birth to death. These laws cover everything from selling, buying, and borrowing things to lending money. They address damages incurred by traffic accidents (property law), as well as family matters such as marriage, divorce, inheritance, and wills (family law).

The Civil Code has received a considerable amount of attention as of late. Law of obligation was significantly revised for the first time since the enactment of the Civil Code over 120 years ago, and a new credit law came into effect in 2020. In the same year, a new family law went into effect guaranteeing spousal residence rights, particularly a wife’s right to remain for life or a fixed period of time in a building owned by her deceased husband where she has lived for many years. In 2022, the age of majority in Japan will be lowered to 18 from 20. Currently, the issue of whether married couples should be able to retain separate surnames is receiving a great deal of attention. This change could be made by modifying the Civil Code.

Makoto Imao, a professor in the Department of Law, Faculty of Law, who has been studying civil law for many years, describes civil law as “an extremely human field of law.” In this article, he discusses his research, what he values in his seminars, and the Civil Service Examination Seminar (which boasts a passing rate of over 60 percent) that he founded and currently helps run—all of which are informed by his passion for law.

Makoto Imao Professor and Dean, Faculty of Law Professor Imao specializes in civil law, especially security interest law, credit law, and adult guardianship law. He graduated from Hosei University’s Faculty of Law, Department of Law in 1990. He completed the master’s program at the Waseda University Graduate School of Law in 1993 and completed doctoral coursework there in 1997. He began teaching civil law at Meiji Gakuin University as a junior associate professor the same year. He currently teaches introductory civil law, courses in the newly established Legal Professional Course, credit law, property law, a seminar, and an extracurricular preparation course for the civil service examination. His motto is to do everything one can to support motivated students.

Civil law is an academic field that deals with all of life’s issues, from birth to death

For many years I have been studying civil law, and I consider it to be an extremely human field in the realm of law. It is a discipline that contains human emotions, joy and sorrows. It shares common themes with fields such as literature, history, and sociology. Stendahl, the French author of Le Rouge et le Noir, is said to have so highly valued the simplicity and clarity of the writing style in the French Code civil that he always kept a copy at hand. While many consider law to be rigid and inflexible, civil law is not a field that lends itself to sticking hard and fast to rules.

Why don’t societies and practices adopt solutions that adhere to the law?

The theme of my research since graduate school has been methods for collecting sellers’ debts related to movable property, with a focus on security laws pertaining to movable property in French law. Let me give you an example. Suppose a seller delivers moveable property such as livestock to a buyer, but the buyer of that movable property goes bankrupt before making the payment. In that case, the value of the livestock is converted to a monetary value, and the seller, along with other creditors, must contend with receiving only a small dividend from the sale. From the seller’s perspective, equally sharing the value of that livestock with other creditors is unfair.

To deal with such situations, Civil Code includes “statutory liens” (statutory liens for sale of movables), which stipulate that sellers can preferentially collect debts (costs) related to sold items. However, in actual practice, this method is often not used as a solution. Why is that? Is this due to a lack of awareness? To answer these questions, I began investigating the system of statutory liens in the French Civil Code that was the basis for this provision.

As a result, I learned that in France, sellers were given preferential status long before the French Civil Code was enacted. I therefore explained this concept in French law and the sense of practical fairness that exists amongst creditors, namely the idea that “those who provide property to help increase the property of others should be given preferential treatment.” I then applied this to the Civil Code in Japan, suggesting that this could be reasonably established as an interpretation of the Civil Code of Japan.

I also research the assignment of claims and mortgages. As an extension of my earlier research, I became interested in legal mechanisms for mortgages, which is another form of collateral for movables. Mortgages allow a lender to, for example, take ownership of a borrower’s property in exchange for money lent, with the borrower transferring the property’s ownership but retaining rights for use. Conventionally, any one thing has only one owner, so I was interested in the theoretical question of whether ownership in this case is attributed to the creditor or the debtor. Also, this security interest conflicts with the above-mentioned statutory liens for sale of movables. In other words, if A sells a movable property to B, and B mortgages it to borrow money from C, should B then go bankrupt, a conflict between A’s statutory lien on the movable property and C’s mortgage would arise. From the perspective of my initial research, it seems that the statutory lien should be given preferential treatment, but case law and actual practice often come to the opposite conclusion. I have thus continued my research in hope of correcting this situation. Currently, my research is heading in the direction of what happens to this preferential treatment when the object of such liens is an intangible object, such as debt.

Recently, my research has focused on adult guardianship systems, as compared with French law. Adult guardianship refers to the systems that support legal decision-making for persons whose decision-making ability has deteriorated due to conditions such as dementia. The 1999 revision of Japan’s Civil Code created new adult guardianship systems (a system for persons with limited capacity, a voluntary guardianship system, etc.) that replaced the previous ones in 2000.

Inspired by the MGU Faculty of Law’s policy of contributing to society and the community through research and education, the Faculty started research and education related to the adult guardianship systems just after the law’s revision. An extension course featuring young researchers and prominent practitioners from other universities connects our students with members of the community.

Having been involved in these developments, I started researching the promotion of the new systems and investigating their problems in comparison with the adult guardianship systems outlined in French law, which has been the traditional basis of our civil law systems. After publishing an article that suggested some research-based improvements, I was appointed chairman of the Adult Guardianship Steering Committee and the Adult Guardianship System Utilization Promotion Council in Tokyo’s Minato and Shibuya Wards, and my activities in this area are becoming my lifework.

Leading the way through logic and discussion rooted in evidence-based assertions

In my seminar, we analyze in detail the legal claims of plaintiffs and defendants and the facts supporting those claims, using case law (Supreme Court decisions on civil cases). In order to get at the essence of the issues, we discuss in a debate format how parties argue legal claims, the court decisions that are related to these claims, and the reasons for those decisions. The students in my seminar have various career goals. Some hope to join the legal profession, and some want to sit for the civil service or other qualifying examinations. The goal of my seminar is to help students grasp the core of issues, giving them the ability to objectively analyze issues and logically derive concrete solutions so that in the future they can play an active role in society as legal professionals or civil servants.

I believe such abilities are useful not only for legal professionals and civil servants, but also for those working at private companies or in other professions. When you encounter a problem and it is your responsibility to resolve it, you must calmly analyze the situation in order to identify its core and its cause. You must then examine all courses of action and decide which is best. You must be able to communicate your thinking and explain how you arrived at the solution in order to persuade others to adopt your plan. You must also be able to rebut counterarguments from other parties using evidence. This is the legal method of argumentation. When you reach a point in the debate where the other party is unable to make further counterarguments, they must accept your assertion. While things generally don’t go quite so smoothly in the real world, in the legal world this is the common and universal rule.

Mutual understanding is attained through logic and discussion rooted in evidence-based assertions. This is what I want students to learn in my seminar. My emphasis is not on legal knowledge or clever debate tricks. Rather, I want them to pick up this way of thinking, which is the essence of law, the so-called “legal mind,” and thereby become useful to society. Needless to say, the basic premise of this way of thinking must be human beliefs and passions.

Another theme of my seminar is to always be critical of the law, case law, and authority. I teach that even if your reasoning and conclusion differs from precedents, theories, and sometimes even the law, if you think something is reasonable and correct, you should pursue this logic. In other words, I want students to always doubt and always criticize. I want them to derive their conclusions with confidence because they analyzed the situation and thought for themselves, not because the Supreme Court made a decision or because many others believed something. (Of course, they may come to the same conclusions as others have.) Disagreeing with authority requires some amount of consideration and reasoning to convince others. I hope to show that, through learning, we can avoid being easily led around by authority.

A civil service examination seminar with over a 60 percent pass rate open to all students

In addition to my seminar, I am involved in other seminars and courses on campus. One is the Civil Service Examination Seminar that started as a course in the Department of Law, but is now run by the University and is open to all students. This is a project supported by all University faculties with the aim of assisting students who are aiming to become national civil servants (comprehensive service, general service) or local civil servants (prefectural governments, ordinance-designated cities, special wards, etc.). Once the program achieved a passing rate of over 60 percent, the University decided to expand it from a project within one faculty to a university-wide program for supporting all students wishing to become civil servants.

The “Police and Firefighting Challenge Support Project,” spearheaded by the Faculty of Law, was created as a result of this success. This project supports students aiming to work at general city halls, or as police officers or firefighters. Since many students and examinees applying for the Civil Service Examination seminar want to work as police officers or at local city halls, we decided to launch a new support project that focuses on meeting their specific needs. This project, too, is progressing well, with pass rates from 50 to over 60 percent. Starting in the 2021 academic year, this project will also be a university-wide program.

Graduates of our Civil Service Examination Seminar who have gone on to national, prefectural, or other positions often tell us that graduates of other schools are surprised or envious when told about the MGU program. As always, our University takes the stance of “doing our best to support students who are doing their best.”

Needless to say, training for legal professions remains one of the main goals of the Department of Law. Each year we have sever students who graduate early with excellent grades, begin law school at other universities, and pass the bar examination in the hope of becoming a legal professional. For this reason, we decided to establish the Legal Professional Course in the Department of Law in 2020. This course has obtained approval from the Ministry of Education, Culture, Sports, Science and Technology and operates in cooperation with six law schools, including Waseda University, Keio University, and Chuo University. Those with excellent grades can advance to these law schools without taking a subject examination and can graduate from MGU early, in just three years. We had 30 applicants in 2020 and 29 in 2021. Students in this program study hard toward their goals while taking designated courses. When students with ambitious goals and a sense of purpose participate in courses, they make a positive impact on other students.

Law is linked to, and sometimes restrains, social change

I believe that the law changes—indeed, must change—in response to changes in society and the economy. Those working in law must be sensitive to such changes and able to flexibly accommodate them. Benjamin Cardozo, an American lawyer and U.S. Supreme Court Associate Justice who was active in the late nineteenth and early twentieth centuries, wrote in his famous book The Growth of the Law that “ the law of our day faces the need of philosophy that will mediate between the conflicting claims of stability and progress “, and that how to balance progress and stability is an eternal challenge for law and lawyers. When I read this, I could not help but agree.

However, we should pause to note that the law is not everything. We must remain clearly aware that it can be very dangerous when misused, and that while laws can be linked to social changes and movements, they can also be used to suppress such movements. Once enacted, a law applies until it is amended. We must calmly and thoroughly assess the effectiveness and influence of laws before enacting, amending, or abolishing them. I feel that as the basis for such judgments, we must always ask ourselves how humans ought to live.