Abstract
Each nation has its’ own civil execution system which reflects its history and socio-economic system. On the other hand, in a certain degree, there are similarities in devices directed to the same purposes, including attachment and sales. Especially for developing countries, civil execution system is expected to change with the progress of internationalization of economy. As the economic relationship between Japan and Myanmar is deepened through increasing investments, now is the time to try compare the civil execution systems both countries to consider the needs for legal reform movement which is already being sought between both governments.
Yoshifumi Akanishi—Professor of Law, Kinki University, Japan; Former Presiding Justice at Osaka High Court; LL.B. Kyoto University; LL.M., Kyoto University.
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Notes
- 1.
Regarding Myanmar’s execution system, refer to page 45 onwards of Status Paper on the Civil and Commercial Dispute Resolution System in Myanmar by Yukawa et al. in Nishimura & Asahi law firm (2015) http://www.moj.go.jp/content/001179166.pdf (hereafter referred to as the “Status Paper”); and page 204 onwards of Chapter 5 “Civil Procedure and Arbitration Law in Myanmar” of 2012 Report on the Legal System in the Republic of the Union of Myanmar by Mori Hamada & Matsumoto law firm (2013) http://www.moj.go.jp/content/000110250.pdf (hereinafter referred to as the “Report”).
- 2.
The author studied the Myanmar legal system in a group of three with Professor Yuka Kaneko, Graduate School of International Cooperation Studies, Kobe University, and Professor Shiro Kawashima, Faculty of Law, Doshisha University.
- 3.
If there are errors in this paper concerning the results of the discussion, such errors are the responsibility of the author.
- 4.
See page 62 onwards of the “Status Paper”.
- 5.
In the CPC, general provisions concerning compulsory execution are defined in Section 36 onwards, and detailed provisions are defined in the Rules of Order 21.
- 6.
Nakano and Shimomura (2016) Minji Shikouhou (Civil Execution Act) Supplementary Edition 6, Seirin Shoin, on p. 6 says “Execution that makes a person (their life, body or labour) the subject of execution (i.e. execution against the person) is not only inconsistent with our cultural notions, but because of its ineffectiveness it is generally concealed in the shadows.”.
- 7.
Kenta (2016) Adversary System in Myanmar Civil Trials (1). ICD News, (68), p. 72.
For a specific example of a decree, see Attachment IV-2-15 of the “Status Paper”.
- 8.
Of course this is a figurative expression and there is no process for granting a certificate of execution.
- 9.
On the other hand, I think, the fact of lapse of time period and debtor’s allegation is an easy to judge, so, if execution court find out the aforesaid facts, the court also can dismiss the application (in my opinion).
- 10.
See pp. 208–209 of the “Report”.
- 11.
According to the judges of Yangon Western District Court, “sale without attachment ” means the mode of execution for security right.
- 12.
See pages 205–207 of the “Report” for a translation of this part of the CPC.
- 13.
See Attachment IV-10-(5)-(b) of the “Status Paper” for an actual example.
- 14.
See Attachment IV-10-(6) of the “Status Paper” for an actual example.
- 15.
See pages 48–49 of the “Status Paper”.
- 16.
See Mori Hamada & Matsumoto law firm’s Yangon office “Front Line of Myanmar Law”, p. 225.
- 17.
But, according to Yuka (2017) “Issues of the Civil Execution System in Myanmar” published in Kokusai Kyouryoku Ronsyuu, Kobe University Graduate School of International Cooperation, A registration office (under the office of Agricultural Land Management and Statistics of Myeik District in Tanintharyi Region) transcribes the attachment order to the Record 1A by the court’s request. So, we need to confirm the status of practice of the registration office at that point.
- 18.
According to p. 60 of the “Status Paper”, in the case of land the execution officer erects upon the land a notice with the attachment order affixed, so if the site is inspected then the existence of the attachment should be clear.
- 19.
Regarding registration in Myanmar, according to p. 218 onwards of “Front Line of Myanmar Law”, when transferring or leasing real estate the two processes of registration under the Registration Act and changing the contents of the Land Record are necessary. Concerning the history of land rights and registration systems in Myanmar, see Okamoto (1997) Land Tax Systems and Land Ownership in Colonial-Period Burma, in Southeast Asian Economic Development and Land Systems (Institute of Developing Economies).
- 20.
At this point further investigation is needed to confirm the actual practice.
- 21.
Refer to Yuka (2017) Issues of the Civil Execution System in Myanmar 2(4).
References
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Nakano, T., Shimomura, M. (2016). Minji shikouhou (Civil execution act), supplementary edn 6. Tokyo: Seirin Shoin.
Okamoto, I.(1997). Land tax systems and land ownership in Colonial-Period Burma. In Mizuno, Shigetomi (Eds.), Southeast Asian economic development and land systems (pp. 81–114). Institute of Developing Economies.
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Yukawa, Y., Harada, M. et al. (2015). Myanmar ni okeru min-syoji kankeitou no hunsou kaiketuseido no jittai (Status paper on the civil and commercial dispute resolution system in Myanmar). Ministry of Justice. http://www.moj.go.jp/content/001179166.pdf.
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Akanishi, Y. (2019). Issues of Compulsory Execution in Myanmar: A Comparative Approach from Practical Viewpoints. In: Kaneko, Y. (eds) Civil Law Reforms in Post-Colonial Asia. Kobe University Monograph Series in Social Science Research. Springer, Singapore. https://doi.org/10.1007/978-981-13-6203-3_7
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