Comment on Civil Enforcement Reforms from a Comparative and Historical Perspective

Abstract

Following the 2019 amendment to Japanese Civil Enforcement Act 1979 to provide the courts with the long-awaited ‘teeth’ with which to commit the obligor to custody who has failed to comply with a disclosure/discovery/searching order, this comment reviews why searching order, general freezing order, civil penalties, prioritisation of earlier enforceable titles (Schuldtitel), etc. were deleted during the enactment of Civil Procedure Act 1890, which was otherwise an almost article-by-article translation of German Civil Procedure Code (ZPO). Such blunting of ZPO’s teeth can be explained by the surviving influence of pre-modern Japanese practice, somewhat excessive separation of civil procedure from criminal one, the moderation of certain consequences of modernisation, such as the abolition of feudal class system, etc. It is rather surprising to learn of this, because Japan succeeded in persuading Great Britain to give up their extraterritoriality, which guaranteed the security and property of British citizens in Japan, within four years of the enactment of Civil Procedure Act. Japan took from 90 to 130 years to replant and sharpen its teeth. Japanese law does not allow any general freezing order, but it would be the law’s “nuclear weapons”, along with a searching order. This comment suggests a way forward.