PHENOMENON OF JAPANESE LEGAL SYSTEM. CHARACTERISTICS AND FEATURES
Journal Title: Право та інноваційне суспільство - Year 2016, Vol 6, Issue 1
Abstract
Problem setting. The article describes phenomenon of Japanese legal system through analysis of individual elements of the legal system of Japan, by means of investigation of specific and unique for this system means of social relations control. In addition, implementation of the basic principles of customary legal system in modern Japanese legal system is demonstrated; and basic approaches to defining the role of law in modern Japanese society are produced. Analysis of recent researches and publications. A significant contribution to the study of the Japanese law and national legal systems phenomenon has been made not only by the national lawyers – O. A. Vasianovych, A. V. Zaichuk, D. V. Lukianov, R. A. Maidanyk, N. M. Onishchenko, M. G. Khaustova and foreign lawyers – M. Abe, J. Haley, V. M. Eremin, T. Kavashima, O. M. Kozyrin, Yu.Noda, L. Nottage, H. Oda, M. Ramseyer, T. Takeo, M. Chiba. The great importance on understanding and analysis of Japanese legal system have publications of such Japan ethnographers, historians, political scientists as M. V.Anisimtseva, E. O. Gadzhiieva, V. E. Molodiakov, E. V. Molodiakova, O. M. Meshcheriakova, D. V. Streltsova. Purposes of research. In our opinion, disclosure of the role and legal nature of some (elements) features of traditional law in modern law of Japan is relevant, as well as an assessment of their impact on the functioning of individual industries and legislation and on the state of regulation of public relations in the country. Paper objective. Japanese legal system should be considered as the «hybrid» legal system. It can be described as part of any existing legal family, as far as the current legal system in Japan is the result of selective reception of elements of legal systems of countries, belonging to the Roman-Germanic and Anglo-American legal families. The characteristic features of modern legal system in Japan is the practical absence of traces of the legal system, prior to the process of Europeanization and predominant role of legal culture and legal consciousness, ideas about how must be embodied legal principles, in comparison with the law. Conclusions and prospects for the development. Japanese legal system is a unique example of synergistic interaction of law that has emerged as a result of legal transplants of elements of Anglo-American and Roman-Germanic legal systems, and other social (non-legal) regulators, operating at the level of civil society, the result of which is well-regulated public relations and a stable base for the maintenance of the current law. The phenomena of «friendly administration» and «administrative guidance», examined in this article, are not publiclegal elements in terms of jurisprudence, but are formed in the process of historical development and are secured by power of civil society, assume the character of regulatory requirements. In Japan (and in many parts of Southeast Asia) law principles emerge in connection with the development of social relations in administration management and in the sphere of judiciary and justice ensuring, as distinct from the continental legal system where law has been developed in line with civilized tradition, so even at this stage of the legal system in Japan there are some gaps in the perception of the concept of contractual obligations and subjective rights and responsibilities in society. We should also mention that large transplantation of legal norms, which are not the result of a gradual development of system of social relations in the country, is caused by the lack of practice of their proper using and understanding what now is embodied in the common practice of extra-judicial dispute resolution and conciliation. For legal culture of Japan, as part of the legal system, using of Buddhist and Confucian ethics rules by way of reaching compromises at conflicts, both in business and in household areas of life, is characteristic. Fundamental principles of customary law system – are «the common good», «collective responsibility», «respect for the forefathers inheritance,» etc., till now have a significant impact on the legal system of modern Japan.
Authors and Affiliations
M. A. VORONINA
Keywords
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