著者
杉谷 昭
出版者
法制史研究
雑誌
法制史研究 (ISSN:04412508)
巻号頁・発行日
vol.1966, no.16, pp.127-143,v, 1966

In this paper, I have made an inquiry into the San-chi-sei of<I> fu </I>(_??_), <I>ken </I>(_??_), and <I>han</I> (_??_) in the Early Meiji Era, especially into the part played by fu during the period just before the abolition of <I>han</I> (clans) and into the establishment of<I> ken</I> (prefecture) from the historical point of view of the word<I> fu</I>. Thus, I have partly made clear the process of the establishment of the centralized national government from the viewpoint of the constitutional history.
著者
山中 至
出版者
法制史研究
雑誌
法制史研究 (ISSN:04412508)
巻号頁・発行日
vol.1991, no.41, pp.1-44,en2, 1991

This paper analyzes the legal effect of Geishogi-contract in the early Meiji period, before the enforcement of Old Civil Law, with some unknown decisions of lower courts in Tokyo and Osaka.<BR>It contains, First, as for Geishogi-contract, dualistic opinions, labor contract as Geishogi was void against public policy but advance contract was valid, had been dominant during the Old Supreme Court era. In 1955, Supreme Court invalidated the long supported precedent with a unitary opinion and reversed it. This paper clarified, for the first time, that dualistic opinions (e. g., the decision of Tokyo court of appeals in 1878, the decision of Tokyo district court in 1879) had existed before the appearance of the decision of Old Supreme Court and that had been the main stream in lower courts.<BR>Second, while there had been the decision of Old Supreme Court in 1896 for Geishogi's freedom of retirement, similarly, we found that it had been admitted in lower courts (Tokyo and Osaka) before it. Furth-ermore, there were interesting decisions that had prohibited a master from forcing Geishogi to work and from taking back the returned. In the case of human traffic as an employment contract, lower courts had remedies for Geishogi's freedom of retirement with dualistic opinions.<BR>Third, we found, however, a progressive decision which made an advance contract void for the proclamation 295 in 1872. Finally, we should regard the decision, the substance of an adoption for Geigi was a masked Geishogi-contract and void for the proclamation 295, as the progressive one which was treated as a problem of public policy.
著者
牧 健二
出版者
法制史研究
雑誌
法制史研究 (ISSN:04412508)
巻号頁・発行日
vol.1962, no.12, pp.100-148,III, 1962

According to the<I> " Writings of the Wa People "</I> (_??__??__??_), of the<I> " Record of the Gi Dynasty " </I>(_??__??_), 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 <I>Queen Himiko </I>(_??__??__??_) 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 ".<BR>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, <I> Ugan</I> (_??__??_) and <I>Sempi </I>(_??__??_), 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, <I>flare</I> (_??__??_), <I>Yoso</I> (_??__??_) and<I> Kai</I> (_??_), 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 <I>Kan</I> (_??_), who-were in the southern half of the Corean Peninsula, were divided into three blocks, <I>Bakan</I> (_??__??_), <I>Shinkan</I> (_??__??_) and <I>Benkan</I> (_??__??_), 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, <I>Shin wo</I> (_??__??_). 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.<BR>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 <I>" Queen State " </I>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<I> " Queeu State " </I>to be either the beginning of the Empire of Mikado or a single monarchy in Kyushyu. But such opinions are completely erroneous.
著者
原口 虎雄
出版者
法制史研究
雑誌
法制史研究 (ISSN:04412508)
巻号頁・発行日
vol.1986, no.36, pp.77-142,en4, 1986

Tojo, or outer-castle, system in Satsuma is unique in Japan under the Baku-Han Regime. The system was the basic unit in Satsuma's social structure. The system survived the enforcement of "Genna-no-ikkoku-ichijorei" (Order of Bakufu restricting the number of castles to one in each han). This paper is an attempt to give an account of the process of its establishment and consider the implications of the functions of such a system of social organization on Satsuma's internal and external policy.<BR>Tojo-system was a social institution with decentralized military deployment. Under this system Shimazu, the feudal Lord of Satsuma, divided its territory into 113 districts. The administrative functions were performed by the distinctive samurai-group headed by jito. The office of jito was called "jito-kariya", and the zone of residence for the samurai group was named "funioto". The jito was entitled to serve as the commander who could mobilize the samurai group to form an army corp at an emergency. In Satsuma all the samurai, except for about 5, 000 Kagoshima jokashi (the castle town samurai), resided in fumoto living on farming. Those samurai were earlier called Tojo-shuju, or goshi later. The Tojo zones were not the same as those in the age of the Warring States. Most of them were settled in the early part of the Tokugawa Era under the new system that had replaced the older one.<BR>The Tojo-system was constructed incrementally in the process of Shimazu's integration of three shu, or provinces: Satsuma, Osumi and Hyuga. There is some reasonable ground for identifying the year of the establishment of this system as around the fifth year of Keicho (1600).<BR>The Shimazu family founded its dictatorship in 1600 after the long battles that ravaged the area since 1526 when Takahisa succeeded the dynasty. The Shimazu successively conquered the antagonistic local clans in the domain, with the final battle ending in the defeat of Ijuin Kogan (Shonai-no-ran, 1599-1600).<BR>Around the mid-1590s Toyotomi Hideyoshi, the Grand Warrior Lord of the nation, ordered a land survey (1594-1595), which benefited the Shimazu as they conducted-a large-scale replacement of the leading vassals to achieve their hegemony.<BR>As a step toward integration the Shimazu started to build new Tojo as well as to re-arrange the existing ones throughout the territories. Because of their strategic importance the Tojo at the border, such as Izumi on the gateway to Higo, Okuchi to Kuma, and Takaoka and Shibushi to Hyuga, commanded Shimazu's most serious attention. Shimazu placed his most trusted and influential samurai heads to those places where they promoted drastic social reforms and set up a strict control system for the trans-border traffic.
著者
瀬賀 正博
出版者
法制史研究
雑誌
法制史研究 (ISSN:04412508)
巻号頁・発行日
vol.1999, no.49, pp.85-106,en5, 1999

The main purpose of this paper is to make clear the function and the actual effects of legal document <I>Myobo-kammon</I> (_??__??__??__??_) which had influence over the trial, especially the <I>Jin-no-Sadame</I> (_??__??_, the conference at the <I>Jin</I>) in <I>Heian</I> period.<BR>The legal documents <I>Myobo-kammon</I>, which is drawn up by judicial officials or jurists (<I>Myobo-ka</I>, _??__??__??_), is generally understood as a draft of sentence of court, and there, these documents give priority to the interpreta-tion and application of <I>Ritsu-ryo</I> codex (_??__??__??__??_). It is regarded as one of the most important material to study on relation between jurisprudence and judicature under japanese <I>Ritsu-ryo</I> system. Therefore I think that this is an important material to think about the character of administration of justice in ancient and middle ages of our country. However there remain many problems to solve on <I>Myobo-kammon</I> itself. It is necessary to approach the problem what position Ritsu-ryo codex occupies in the legal history of our country from the aspect of operation of law.<BR>Following problems are discussed in this paper.<BR>i) the function of <I>Myobo-kammon</I> at legal proceedings; <I>Myobo-kammon</I> had two different functions, one submitted to the court of justice has the function as a proposal of assessment of case, another one has the function as a sort of legal consultation.<BR>ii) the actual effect of <I>Myobo-kammon</I>, in other words, to what extent can this kind of documents bind authorities who are also judiciaries; essentially <I>Myobo-kammon</I> had however no binding power.<BR>iii) the authority of opinion proposed by <I>Myobo-ka</I>; in the <I>Jin-no-Sadame</I>, authorities are more likely to find in the <I>Myobo-kammon</I> merely a confirmation of what is in their minds already. Nevertheless authorities make <I>Myobo-ka</I> who is specialist of law present his judgement. We must carry out a further examination of this problem.