Page 54 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

According to Japanese Law, however, although art.193 of the Civil Code permits
the owner of the stolen thing to recover the thing within two years, art.192 of the same

code stipulates that a person who acquires possession of movables peacefully and openly
by a transactional act acquires rights to exercise with respect to such movables

immediately if he/she acts in good faith and is faultless. 7
In this context, according to Japanese Law regarding a car registered in Japan,
ownership should be transferred with the filing to the registration for completing

the perfection in relation with a third party. However, before any new file is registered
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for a car, whether new or used and whether imported or not, the general provisions of

the Civil Code mentioned above are to be applied.
The acquisition of ownership of stolen movables, including a stolen car without

registration, is treated differently by German Law and Japanese Law, possibly leading
to an opposite outcome of judgment, so that the choice-of-law problem was taken as
a critical issue in the disputed case.

Choice-of-law issue of Japanese P.I.L.
In order to understand the significance of the Supreme Court’s position on this

choice-of-law issue, it is necessary to look at the background discussion based on
the provisions of Horei (which is the former second Japanese Code of Private
International Law).

Art. 935 (No good faith acquisition of lost property):
(1) The acquisition of ownership under sections 932 to 934 does not occur if the thing was stolen from
the owner, is missing or has been lost in any other way. The same applies, where the owner was only the indirect
possessor, if the possessor had lost the thing.
(2) These provisions do not apply to money or bearer instruments or to things that are alienated by way
of public auction or in an auction pursuant to section 979 (1a).
7 See, for the Japanese Civil Code, Article 192 (Immediate Acquisition):
A person who commences the possession of movables peacefully and openly by a transactional act
acquires rights to exercise with respect to such movables immediately if he/she is in good faith and faultless.
Article 193 (Recovery of Stolen or Lost Goods):
In the cases provided for in the preceding article, if the possessed Thing is lost or stolen goods,
the victim or person who lost the Thing may demand the recovery of that Thing from the possessor within two years
from the time of the loss or theft.
8 Japanese Road Transportation Vehicle Act (art.5)

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