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ฉบับพิเศษ ประจำ�ปี 2564

The actual criterion for choice-of-law adopted by the High Court was “the place

of registration,” even though such expressions as “a fixed central place where the car
was originally expected to be primarily used” or “the place where it is to return” seem

to lead to the Supreme Court’s concept of “the place of its primary use.” At any rate,
23
the decisive factor is the place of registration, except in certain special circumstances.

The reason why the High Court applied a substantially different criterion from
the District Court, leading to an opposite outcome of approving the plaintiff’s claim,

was the serious concern regarding the issue of laundering of legal titles on a stolen
object to be realized by way of legal institutional arbitrage between different countries.
The High Court took into consideration the registration held in Germany, the ownership

registered there, and any subsequent transactions based on this registration, superior to
the accidental location of an object possibly moving from one place to another.
This possible change of physical location makes it possible for a clandestine trader

deliberately to move the object to a place where local laws might provide him/her or
his/her transaction counterpart with a cleaned legal title, opposed to the former legal
title. This is, at least for the High Court, a serious concern regarding the principle of

lex loci rei sitae.

Regarding the position taken by the Supreme Court, on the one hand, as suggested
by the refusal of simple application of the principle of lex loci rei sitae in the material
sense (which was adopted by the District Court), the Supreme Court has not completely

ignored or excluded the problem caused by that principle. However, on the other hand,
it refused to adopt the view held by the High Court. Here can be found a nuanced

position of the Supreme Court with adoption of the general formulation based on
the dual categorization of cars, as intermediate position between the view of the District
Court and that of the High Court.

23 It is remarkable that the Supreme Court, on the contrary, refused to identify the place of primary use in
Germany, based only on the actual existence of registration there. See supra note 12.
As for the High Court’s position to fix the applicable law in Germany, regarded as the place of return and
registration, it is also possible to find another concern regarding the necessity of protecting the possession, possibly
deprived of by force etc. and leading to the change of applicable law according to the principle of lex loci rei sitate,
in the international context. As for the issue of the international legal framework for protecting the possession,
particularly in regard to the international child abduction, see HARATA (supra note*) p.345 note129.

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