Page 78 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

lex loci rei sitae in the international context also enables laundering of legal titles by
way of particular rules of the applicable law fixed simply on the basis of the physical

existence of the movable at that moment. Therefore, it is not difficult to suppose a strong
incentive to willingly bring a movable into a country whose laws authorize opposition

against a claim based on a legal title recognized by the former lex loci rei sitae.

Causal good faith and non-causal good faith

Even though the Supreme Court and Japanese scholars acknowledged a certain
kind of “security of transaction” to be realized in some cases by way of the principle
of the lex loci rei sitae, excluding connections deriving from former applicable laws in

a non-causal manner in the international context, such a concept of transaction security
and stability appears very closed and parochial, with the focus on the transaction based
on the physical existence within the country at the current moment. There might be

doubts about whether we cannot suppose another kind of secure and stable transaction
in the international context.

As for the diachronic change in applicable law, priority is given to the new law,
enabling it to exclude claims based on the former applicable law. In addition to this
diachronic perspective (or, in a confused manner, not to clearly differentiate between

the perspectives), and regarding the synchronic perspective of choice-of-law, the physical
existence is given priority, according to the principle of lex loci rei sitae. If the law of
the place of current existence of a movable, in terms of the substantive law, regulates

the protection of ownership acknowledged by itself by way of non-causality, particularly
for import and domestic transactions based on the physical existence within the country,
the principle of lex loci rei sitae, regarding choice-of-law treatment in terms of diachronic

and synchronic perspectives, is very coherent with such a rule of substantive law of
the country.

However, it is at least still possible for us to imagine another kind of international
transaction different from that based on the material-oriented concept of secure and

For a more detailed theoretical analysis, see HARATA (supra note*), particularly p. 378 note 53; 360 note
96; 346 note 128 and 129. For the concept of “System”, see HARATA, An interim report on Savigny’s methodology and
his founding of a modern historical jurisprudence, The University of Tokyo Law Review, vol. 8 (2013) pp.125-143.

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