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วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ
the principle of lex loci rei sitae, which had clearly appeared between the District Court’s
judgment and the Appeal High Court’s judgment in this case.
The District Court chose Japanese law as applicable regarding the acquisition
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of ownership, applying art.10 of Horei in the simple material sense. Then, in accordance
with art.192 of the Japanese Civil Code, the court held that B acquired the car’s ownership
by way of a good-faith transaction followed by transfer of possession (this method of
ownership acquisition is called an “immediate acquisition”), and dismissed X’s claim
for delivery.
Contrary to this, the Tokyo Appeal High Court chose German law as
the applicable law. It also applied art.10 of Horei with the principle of locus rei sitae.
22
However, the High Court interpreted, in a fictitious manner, not Japan, but Germany
as the locus rei sitae, using the following reasoning:
“Cars, by their nature, are movables which are expected to move around
considerably, and therefore, it is not appropriate to understand that the law of
each place where it moves to shall be applicable. Rather, it is appropriate to
regard the law of a fixed central place where the car was originally expected to
be primarily used, i.e. the law of the place where it is to return (the place of
registration) as the law of the location as provided by article 10, paragraph 2
of the Law on the Application of Laws, unless there are special circumstances
such as non-use or absence at the place of registration for a long time, or
the de facto loss of the possibility of returning it to the place of registration
as a result of new registration by a person who is entitled to do so”. [underlined
by the author]
The High Court held that “Germany is the place which was regarded as
the place to which it should be returned”.
21 Urawa District Court (Koshigaya division) judgment on February 22, 1999.
22 Judgment on February 3, 2000 (1709 Hanrei Jiho 43).
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