著者
近藤 佳代子
出版者
Japan Legal History Association
雑誌
法制史研究 (ISSN:04412508)
巻号頁・発行日
vol.1989, no.39, pp.151-183,en9, 1990-03-30 (Released:2009-11-16)

The main aim of this article is to make clear the following two points. 1: How the matrimonial property relations branched from the property relations between the head and the members of a house prior to the Civil Code. 2: How it was arranged in the course of civil codification.First: In the early years of Meiji, the whole property of a house was regarded as the property of the head of the house. So, the property of a wife was unified to the property of the head of her husband's house. But the development of merchandising demanded that property would circulate freely, and tried to rid the house-members' property from the control of the head. The members came to be permitted to have separate property. But they still had to obtain the permission of the head of their house to buy or sell their separate property: the head signed and sealed a contract jointly. This restriction prevented the free circulation of merchandise.In 1882, the restriction was discontinued by Dajohkan (the Council of State) for all adult members of a house including women, except a wife. A wife had to obtain her husband's permission even if he was not the head of the house. Thus the matrimonial property relations branched from the property relations between the head and the members. But, before the enforcement of the Civil Code, only the notarized and inscribed property was recognized to be the members' separate property. So, the head's control over the rest of the property of a wife, as well as of the other members, still continued.Second: In the process of the civil codification, from the beginning, a wife's property rights were controlled not by the head of her house but by her husband. It was because the Japanese civil codification began after the model of the Napoleonic Code.The first draft of a Civil Code for Japan denied the Iye-system substantially: it admitted neither the authority of the head of a house nor the property of a house in substance. So it was criticized by the jurists who were espousing the Iye-system, and then it was revised.The Civil Code in 1898 prescribed the Iye-system. The head of a house succeeded to the property of the house by himself/herself. But the free circulation of property was also required in order to develop capitalism in Japan, so the members of a house were allowed to have their own property, which was free from the control of the head of their house. Thus the property of a wife was also entirely free from the control of the head of her husband's house, but it was under the control of her husband. The Civil Code permitted that a woman who was the head of a house would retain the headship at her marriage. But every wife, even if she was the head of a house, had to obtain her husband's permission to carry out some juristic acts and her property was under the control of her husband. Thus the matrimonial property relations and the rights of a husband were established.

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