Why Does My Japanese Counsel Keep Talking About German Law? Understanding the Influence and Practical Relevance of Foreign Legal Systems in Japanese Civil Procedure

For international legal professionals engaging with the Japanese civil justice system, an occasional reference by Japanese counterparts to German legal concepts, doctrines, or even specific provisions of the German Code of Civil Procedure (Zivilprozessordnung - ZPO) might seem perplexing. Why would discussions about contemporary Japanese litigation delve into the legal framework of a European nation? This connection, however, is far from arbitrary. It is deeply rooted in Japan's legal history and continues to hold practical relevance for understanding the nuances of certain Japanese procedural rules, the evolution of its legal doctrines, and even the direction of its legislative reforms. Recognizing this "German accent" in Japanese civil procedure can provide a richer context for navigating its complexities.

Historical Foundations: Japan's Deliberate Reception of German Law

The story begins in the late 19th century, during Japan's Meiji Restoration (starting 1868). This era was marked by a profound national effort to modernize all aspects of Japanese society, including its legal system, to align with Western powers. Facing the urgent need to revise unequal treaties imposed by these powers, Japan embarked on a rapid and extensive project of codifying its laws.

In this quest for a modern legal framework, Japanese reformers and legal scholars meticulously studied various Western legal systems. While French law initially exerted some influence, German law eventually emerged as a primary model for many key areas, including civil procedure. The first modern Japanese Code of Civil Procedure, enacted in 1890, drew heavily from the then-contemporary German Code of Civil Procedure.

Several factors contributed to this preference:

• Perceived Scientific Rigor and Systematization: German jurisprudence, particularly the Pandectist school which emphasized logical consistency and systematic organization, appealed to Japanese reformers seeking a comprehensive and theoretically sound legal structure.
• Alignment with State Structure: The German model, with its emphasis on a strong state and a well-defined judicial role, was seen as compatible with Japan's own nation-building aspirations at the time.
• Influence of Legal Advisors: German legal advisors, such as Hermann Roesler, played a significant role in guiding the drafting of key Meiji-era legislation.

It is crucial to understand that this was not a blind imitation. The reception of German law involved a process of selective adaptation, modification, and integration with existing Japanese legal thought and societal norms. Nevertheless, the foundational concepts, structural framework, and many specific doctrines of Japanese civil procedure bear an undeniable and enduring German imprint. This makes German law the "mother law" (boho - 母法) for many aspects of the Japanese system.

The Enduring Influence: Why German Law Still Resonates Today

The historical linkage is not merely a relic of the past; it continues to inform the understanding and practice of Japanese civil procedure in several tangible ways.

A. Shared Doctrinal Roots and Interpretive Frameworks

Many fundamental principles and intricate doctrinal debates within Japanese civil procedure scholarship either originated in German legal thought or are conducted in very close parallel. Japanese legal academics and sophisticated practitioners often engage deeply with German jurisprudence when analyzing complex or unsettled procedural issues.

This shared intellectual heritage means that:

• Understanding the German "origin" or the comparative German perspective can significantly illuminate the underlying logic, intended scope, or potential interpretations of certain Japanese procedural rules, especially when a Japanese statutory provision is concise or its full rationale is not extensively elaborated in domestic judicial opinions or commentaries.
• For certain complex doctrines, directly referring to German legal texts or established German interpretations can sometimes be more accurate or provide a clearer understanding than relying solely on Japanese materials that might themselves be translating or adapting those German concepts.

B. Concrete Examples of German Influence in Procedural Doctrines

The influence is not just abstract but can be seen in specific, practical rules and judicial interpretations:

• Withdrawal of a Judicial Admission: A core principle in Japanese civil procedure is that a judicial admission (a party's formal acknowledgment in court of a fact disadvantageous to them) is generally binding and cannot be freely withdrawn. Withdrawal is permitted only under very strict conditions, most notably requiring proof by the admitting party that the admission was contrary to the truth and was made due to a mistake (この要件は「反真実・錯誤の証明」 - han-shinjitsu・sakugo no shōmeiとして知られています). This stringent two-pronged requirement is a well-established interpretative theory in Japan. Interestingly, while the current Japanese Code of Civil Procedure does not contain an explicit article detailing these specific conditions for withdrawal, this doctrine is identical to the rule found in German law, which is explicitly codified in §290 of the German ZPO. The Japanese rule evolved through judicial interpretation and scholarly consensus, heavily guided by the received German legal understanding. Thus, understanding the German ZPO §290 and its interpretation can provide valuable context for the application of this uncodified but firmly established rule in Japan.
• (Further Research may identify other examples, such as specific aspects of evidence gathering, default judgment rules, the conceptualization of certain types of actions, or principles governing the binding scope of judgments, where German origins are evident and continue to inform Japanese practice.) For instance, the very structure of analyzing res judicata through concepts like "identity," "preliminary question," and "contradictory" relationships (as discussed in previous articles in this series) has strong parallels with German doctrinal frameworks.

C. Role in Legislative Development and Ongoing Legal Reform

The practice of looking to foreign legal systems, with Germany often being a key reference point, is not confined to academic discourse or judicial interpretation. It also plays a significant role in modern Japanese legislative processes.

• When Japan considers reforms to its Code of Civil Procedure or other related laws, legislative bodies, advisory councils to the Ministry of Justice, and legal scholars frequently undertake comparative studies of how other jurisdictions, particularly those with influential or historically linked systems like Germany, have addressed similar issues.
• Japan sometimes observes the effects of legal reforms implemented in countries like Germany before deciding whether, or in what form, to adopt similar changes. For example, reforms in Germany concerning case management, alternative dispute resolution, or collective redress mechanisms might be studied for their potential applicability and adaptation to the Japanese context.
• An awareness of significant trends or reforms in German procedural law can therefore sometimes offer insights into potential future directions for Japanese civil procedure.

The Academic Pursuit of Universality and Precision

Within Japanese legal academia, especially in foundational areas like civil procedure, there is a strong tradition of striving for theoretical coherence and doctrinal precision. This often involves engaging with the "original" foreign source materials, such as German legal treatises and commentaries, to ensure an accurate and nuanced understanding of concepts that have been imported and adapted into the Japanese legal lexicon.

The underlying premise is that many core principles of procedural justice, fairness, and efficiency possess a degree of universality. As one legal scholar noted, "scholarship that is correct only in Japan does not exist" in the sense that true legal scholarship aims for principles that have broader, ideally universal, validity, even if their specific application is tailored to a particular national system. Understanding how another sophisticated legal system, especially one that has served as a "mother law," has grappled with these universal procedural challenges can lead to a more refined and critical understanding of Japan's own system. When faced with a particularly abstruse or undeveloped point of Japanese procedural law, reference to the German approach (if Germany was the source of the concept) can offer a valuable analytical framework, potential solutions, or at least a clearer articulation of the problem.

Practical Implications for Foreign Litigants and Their Counsel

For international businesses and their legal advisors involved in or contemplating litigation in Japan, this German connection has several practical implications:

1. Understanding the Approach of Japanese Counsel: If your Japanese legal team refers to German legal concepts, specific ZPO provisions, or German academic discourse, it is generally not an irrelevant academic exercise. It often signals an attempt to provide a deeper doctrinal basis for a particular Japanese rule, to explain a nuanced interpretation, or to draw on a well-developed body of thought for a complex or unsettled issue in Japanese law.
2. Interpreting Japanese Legal Texts and Commentaries: For certain complex or less frequently litigated procedural points, authoritative Japanese academic commentaries (which themselves may extensively draw on or compare with German sources) can be indispensable for interpretation, especially since Japanese judicial opinions may not always provide exhaustive explanations of underlying doctrine.
3. Anticipating Legal Arguments: In some niche or developing areas of Japanese procedural law where domestic precedent is sparse, legal arguments might be constructed by analogy to well-established principles in the "mother law" system. An awareness of the German approach to a similar issue might, in some limited circumstances, help anticipate the types of arguments that could be raised or found persuasive.
4. Enhanced Contextual Knowledge: Recognizing this historical and intellectual lineage provides a much richer context for understanding the Japanese civil procedure system as a whole. It allows one to appreciate that many of its rules and institutions are not arbitrary creations but are part of a broader civil law tradition with deep intellectual roots, often traceable back to Roman law through the German Pandectist tradition. This can aid in more effective communication with Japanese lawyers and a better grasp of the underlying "logic" of the system.

Conclusion: The Value of a Comparative and Historical Perspective

While Japanese civil procedure is unequivocally a distinct, sovereign, and independently evolving legal system, its historical development through the significant reception of German law in the Meiji era has left an indelible mark on its structure, core concepts, terminology, and methods of legal reasoning. This is not to say that Japanese law is merely a copy; it has undergone over a century of independent development, adaptation, and innovation.

However, for international legal professionals engaging with Japan, an awareness of this "German accent" can be exceptionally valuable. It can unlock a deeper understanding of certain doctrines that might otherwise seem opaque, aid in the interpretation of complex legal analyses provided by Japanese counterparts, and foster a greater appreciation for the sophisticated intellectual and historical underpinnings of the Japanese procedural framework. It serves as a pertinent reminder that, in an increasingly interconnected world, legal systems often evolve not in isolation but in a continuous, though often subtle, dialogue with one another. Understanding these historical currents can provide a more profound and effective engagement with Japanese law today.