토쿠가와(德川) 일본의 민사재판

Abstract

In Tokugawa Shogunate, daikan, literally means lieutenant, was the local magistrate of the government. He had his own jurisdiction over civil and criminal cases occurred in his bailiwick. He tried those cases brought before him, but had no authority to decide. Instead, he should send his draft to the central officers for supervision. Naisai, literally means agreement-in-between, was a dispute resolution in the form of reconciliation mediated by a third party. The government gave it a position of most important and recommended way of dispute resolution. Indeed, both parties were even forced to rely on naisai outside of courtroom. There are many reasons for this. Most important one could be the image of civil dispute held by the government. It had another aspect as the suit economy from the governmental point of view as well. In Tokugawa Japan the court was free, without any fee. For, the civil pleas were theoretically treated as the grace of the ruler. Thus, the government had no obligation to receive every plea and make it the case in the court. I assume that this theory of ‘justice of grace’ was the greatest reason of the frequent use of naisai method among the people. They knew that stance of the government very well. However, the government treated no small number of civil cases in the court, in fact. Were there any rules or principles of law to bind when the officers made their drafts of decisions? Yes, in a sense. Although they were not strictly binding, drafts were written on the codes of law, customs, by laws, precedents, agreements among the high officers, and even the justice or the reason itself. “Dori”, literally means the course of reason, worked as an important fountain of justice. Thus, the view that the judges were not bound by law in Tokugawa Japan, could make sense in a way. Indeed, it can even be said as a pointing view. However, in course of time, situation has changed. Cases were accumulated, a kind of law-reports appeared, and the fundamental code of Kujikata-Osadamegaki, literally means modus for the suits in the court, was established. Those worked as the binding resources for the reasoning, although the theory, that the justice is “of grace” given by the ruler and gives no right to the people, was prevailing. It should prevail, because it was the fundamental basement of the law and constitution of Bakuhu regime. Professor Syuzo Shiga once called the civil trials of Ching era as a “didactic conciliation”. In Tokugawa Japan, the judges tried to make the parties to agree with the decisions. In that sense, the justice of Tokugawa Japan could be said as conciliatory as Ching. But the agreement or consent by the parties was not obligatory in Tokugawa Japan. Judges could order the parties to receive the judgement without any argument. So, we can say the civil justice of Tokugawa Japan was judicial, not conciliatory. I think we need to analyze further the reason for this from the constitutional aspect of the governmental power. Tokugawa Bakuhu or the Tokugawa Government kept the theory that the ruler and the power of the state was not under the law. Even so, the governmental officials, especially the judicial ones, always tried to keep up with so many fountains of law. However, as the end of the officials to do this were to consider the decisions not by the ‘strict law’ but by the ‘equity’, they had no need to be ‘bound’ by the resources for reasoning. I think this can be an answer to the question above.