Page 56 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

the movable accidentally moves to another country. For example, if the car were located
in Germany, the property would be ruled by German law, and if the car were to be stolen

and moved to Japan, Japanese law would be regarded as the applicable law from that
moment.

2. Supreme Court’s formulation: problems and background concern

Supreme Court Judgment
In conclusion, the Japanese Supreme Court chose Japanese rather than German

law as the applicable law for the acquisition of the car’s ownership since the arrival of
the car in Japan, and applying the Japanese law, the court approved the acquisition of

ownership by B due to art.192, and also the current ownership of Y through the transaction
from B to Yanase and Autopia Nakajima to Y. The court therefore dismissed the claim
for delivery based on alleged ownership.

The remarkable point, however, is that the Japanese Supreme Court chose

Japanese law as the applicable law not on the basis of the simple application of
the principle of lex loci rei sitae, but of another particular principle which was newly
formulated by the Court with the following reasoning:

“Article 10, paragraph 2 of the Law on the Application of the Laws provides

that the acquisition and loss of real rights regarding movables and immovables
are subject to the law of the place where the facts which serve as the cause of
the acquisition or loss took place. This is because the acquisition and loss of

rights such as real rights which are purported to control a thing in an exclusive
manner have a close connection with the interests of the country where the thing
was located at the time the cause of acquisition or loss was completed”.

[underlined by the author]
“Therefore, if the object is a corporeal thing, the law of the location as provided

by this provision should be construed as the law of its physical existence, except
in cases where there are problems in allowing the place of its physical presence
to be a nexus for the choice of law”. [underlined by the author]

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