Page 81 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

ฉบับพิเศษ ประจำ�ปี 2564

There functioned a particular sense of transaction or a particular sense of security and
stability of transaction. This means that, once one has obtained a real-material object

in one’s own hand by way of the transaction, the acquired ownership becomes stable
and secure, being duly unresponsive to some possible defect of the transaction having

led to this transfer of title. The defect of the transaction may call for the recovery of
48
the situation before the materially accomplished transaction, on the basis of a causal
relationship. However, the German concept of non-causality excludes such a claim of

returning to the former situation of ownership. The decisive element here is to obtain
the real material, and maintain occupation and possession.

If this kind of sense of security and stability of transaction is combined with
the choice-of-law issue in the form of lex loci rei sitae, it leads us to the very idea of

legal-title laundering by way of legal institutional arbitrage.
The principle of the transferor’s domicile was still maintained in opposition to

the lex loci rei sitae principle for a while after the middle of the 19 century, in countries
th
other than Germany. Moreover, at the end of the 19 century, the principle of nationality
49
th
was also alleged, mainly by Italian and Belgian scholars, to apply to the choice-of-law
regarding the transfer of movable property. 50

As argued here, it is necessary to pay attention to a socio-structural background
against which the difference of choice-of-law rules on movable property transfer
appeared. Since the beginning of the 20 century, the lex loci rei sitae principle has
th
been more and more predominant in European countries other than Germany.
This historical process took place during the same period in which territorial sovereign

nation states began to appear as socio-economic real entities in international society,
which began to mutually recognize the independent and exclusive rule within their own

48 But see art. 935 of German Civil Code (supra note 6) in comparison with art. 192 and 193 of Japanese
Civil Code.
49 See supra note 43.
50 For instance P. FIORE, Diritto internazionale privato, vol.2, 4th ed. (1904) pp.294ss; Laurent’s project
on the Belgian Civil Code promulgated in 1882 (art.13). See also the draft of the Japanese Civil Code (art.8), which
was influenced by Laurent’s view.

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