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ฉบับพิเศษ ประจำ�ปี 2564

the different choice-of-law rules, one extreme of which leads to the adoption of
the principle of lex loci rei sitae. The polarity also concerns more broadly the divergent

social backgrounds against which different domestic legal institutions for commerce
are constructed, indicating some nuance in the understanding of the term “good faith.”

The following observation on the case shows some analysis regarding how
different markets based on different legal orders are combined, at least from the view-

point of the Japanese courts. It hopefully also demonstrates some key points, and
questions if not solutions, in order for us to think in general about how to coordinate
different markets in international commerce.

II. Discussion on the Choice-of-law issue

1. Choice-of-law issue before Japanese courts

Choice of law as a prerequisite question

As indicated above, there is theoretically a prerequisite choice-of-law question

regarding the acquisition of ownership of a stolen thing, before proceeding to the
interpretation and application of the substantive law chosen as applicable.

In fact, one of the crucial points disputed in the case was the choice-of-law issue
for defining the applicable law on ownership of the car. The reason why this issue led
to heated discussion is the fact that German Civil Law and Japanese Civil Law, both of

which were considered as possible options to be the applicable law, have different
provisions regarding the acquisition of ownership of a stolen movable thing.

On the one hand, art.935 of the German Civil Code stipulates that any acquisition
of ownership of a stolen thing based on a good faith purchase shall not be recognized. 6

6 See the German Civil Code (BGB):
Art. 934 (Good faith acquisition on assignment of claim for possession):
Where a thing alienated under section 931 does not belong to the alienor, the acquirer becomes owner,
if the alienor is the indirect possessor of the thing, on the assignment of the claim, or otherwise when the acquirer
obtains the possession of the thing from the third party, unless at the time of the assignment or the acquisition of
possession he is not in good faith.

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