Page 68 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

A more remarkable point than the formulation itself is the reaction among
Japanese scholars. In addition to their lack of a philological sense necessary to criticize

the Supreme Court’s very confused reasoning, almost no Japanese scholars, on the one
hand, are concerned about what impact that choice-of-law formulation can have in terms

of the legal-title laundering issue. There has not been any serious consideration or
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discussion as to the possible function of the formulation, viz. the extraterritorial
application of Japanese laws which can mean to pursue a stolen and exported car now

abroad. Due to this possible function of the formulation, a stolen car from Japan and
existing abroad should be pursued and possibly recovered in accordance with

the Japanese territorial laws rather than the lex loci rei sitae in a material sense. Whether
or not the legal-title laundering was deliberately ignored, the possibility of extraterritorial
application of Japanese laws pursuing a stolen car abroad has never seriously been

pointed out by Japanese scholars. 26
To paraphrase and add some explanation to the former point regarding legal-title

laundering, Japanese scholars generally criticized the view held by the Tokyo High
Court, yet largely approved the Supreme Court’s formulation and the choice of Japanese
Law as applicable in this case, saying that application of Japanese Law ensures

the security and stability of the transaction in this case. 27

As mentioned above, while the District Court held that the issue of “laundering”
concerns only money, and does not directly relate to the disputed case, the High Court
concerned itself seriously about the issue of laundering in a broader sense. The main

concern of the High Court regards the laundering of legal titles, which is enabled due to
the diachronic change of applicable law on the basis of the principle of lex loci rei sitae

and caused by the intentional change of the place of physical existence. The ownership

25 For instance, DOGAUCHI (supra note 11) 128. For detailed analysis, see HARATA (supra note*) 373-77.
26 Some scholars, considering that such a case will very rarely occur, do not enter into any further discussion.
For instance, HAYAKAWA (supra note 11)277 and DOGAUCHI (supra note11) 129. See infra note 30.
The issue of such an extraterritorial application of Japanese law, even if a very rare case, should not be
excluded from our discussion.
27 For instance, DOGAUCHI (supra note 11) 129 and HAYAKAWA (supra note 11) 277. See HARATA
(supra note*) 374.

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