Table of contents
- 1. Introduction
- 2. Litigation in Japan: Key Facts and Figures
- 3. An Hypothesis: Interest rate in Japanese Law
- 4. “Japan’s turn to litigation”?
- 5. Conclusions
- 6. Endnotes
‘It must be remembered that law is not a mausoleum. It is not an antique to be taken down, dusted, admired and put back on the shelf. It is like an old but vigorous tree, having roots in history, yet continuously taking new grafts and putting out new sprouts and occasionally dropping dead wood. It is essentially a social process, the end product of which is justice and hence it must change with changing social values. Otherwise there will be estrangement between law and justice and law will cease to have legitimacy.’1
Justice P.N. Bhagwati, former Chief Justice of India
In the recent Trihotel case, the German Federal Court of Justice has substantially modified its previous position on lifting the corporate veil, by which shareholders can become liable towards company creditors. The present case note argues that the tort-based new approach will not only afford company creditors with adequate protection but also direct German company law jurisprudence towards a greater regard for fundamental principles of company and insolvency law.
Many comparatists view family law as an impenetrable and unproductive field of legal policy. This perspective invariably draws on Montesquieu and the argument that there are particularly close ties between a system of family law and the jurisdiction in which it has developed and operates. Consequently, there is no incentive to develop a method for comparative analysis in this field. This negative position has been challenged on a variety of grounds: that family laws can operate as legal transplants; that legal policy in different jurisdictions is converging; or that family law can be treated as well as classified as ‘private law’ and affects only parties to domestic relationships. This note reviews the opposing positions and outlines supporting evidence. It provides a perspective on comparative family law to resolve the controversy referred to above. The central argument is that a system of family law operates as a component of political economy and is conditioned by political culture and processes. These inter-related concepts provide a framework and basis for comparative analysis of family laws.
Summary: Comparative Law as Interpretation and as Theory of Law1
(First published in: Revue Internationale de Droit Comparé (2001) 275-288 and in: Mireille Delmas-Marty (ed.), Variations autour d’un Droit Commun, Paris 2001)