Abstracts Law

Japanese spirit and Western utility: a comparative study of Japanese conflicts jurisprudence

by Namyoung Yoo

This dissertation analyzes how Japanese conflicts jurisprudence has evolved in comparison with Western jurisprudence. This comparative analysis shows that the Japanese State has made use of Western methods or concepts to maximize its own policy objectives. The analysis starts from the two themes. First, conflicts jurisprudence concerns the fundamental question of how to resolve the tension between the utopia of international community and the reality of sovereign states (conflicts tension). Second, the answers to the fundamental question have differed depending upon time and place.Japan enacted the Japanese Conflicts Code (the old JCC) in 1898 to set up one of the most internationally-minded bilateral systems. The objective of the old JCC was to demonstrate Japan's eligibility of becoming a member of civilized countries. Since real conflicts cases emerged after the World War II, Japanese courts have considerably challenged the liberal bilateralism as established under the old JCC for the purpose of protecting Japanese citizens and judicial autonomy. The old JCC was amended in 1989 (the new JCC) to enforce "Japanese law for Japanese" policy, and to maintain the unequal treatment of Korean and Chinese permanent residents by nationality. This is a "Japan for Japanese" policy. While using Western legal skills, the Japanese State has resolved the conflicts tension so as to maximize her own policy objectives. The old and new JCC are different in the underlying momentum and policy considerations, but identical in satisfying the policies of the Japanese State which have changed from the Meiji era to the contemporary era.The tension between utopia and reality in conflicts jurisprudence has flowered in Japan just like elsewhere; however, it develops and is resolved in a Japanese fashion.