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วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

for cars existing within Japan. 30, 31

Here, Japanese scholars show their particular way of thinking in favor of
the secure and stable transaction in accordance with the law of the place of physical

and material existence, according to which the exclusive ruling of the subsequent and
current lex loci rei sitae shall be given priority in order to enable the secure and stable
transaction at the place of physical existence, instead of the causal relations of

transactions developed in the international context. 32

30 See OJIMA, Supreme Court Judgment Report, 57-4 Hosho Jiho (2005) 305. Ojima, a Supreme Court
legal research clerk, in his report on the Supreme Court judgment, remarked on the difference between Japan and
European countries to which cars registered abroad usually travel. According to his report, if cars enter into Japan from
abroad, it is mainly for the import car trade. In the case of a new car, it is imported as unregistered, and in the case
of a used car, the foreign registration shall be omitted abroad before the car enters Japan. See also DOGAUCHI
(supra note 11) 129 and HAYAKAWA (supra note 11) 277.
In view of such an understanding, it would very rarely (if ever) happen that the law of a foreign country
is chosen as the applicable law, due to the place of primary use in that country for a car currently existing in Japan.
As for the ownership of a car existing abroad, Hayakawa held that the choice of the law of Japan, deemed
to be the place of primary use, would occur very rarely. HAYAKAWA (supra note 11) 277. However, according
to Dogauchi, “we need to abide by the choice of the law of a foreign country to which a car stolen in Japan was
transported”. DOGAUCHI (supra note 11) 129.
In comparison with these views, see art.6 of Italian Law no.436, dated March 15, 1927, which stipulated
the application of domestic law for the transfer of ownership of cars registered in Italy. Cf. MORELLI, Elementi
di diritto internazionale private italiano, 12a ed. (1986), p.159; POCAR et al., Commentario del nuovo diritto
internazionale privato (1996), p.263 [LUZZATO]; BALLARINO, Diritto internazionale privato, 3a ed. (1999),
p.568-569.
31 See DOGAUCHI (supra note 11) 129. Dogauchi approved the Supreme Court’s judgment, claiming
that, in view of the Supreme Court’s formulation, there almost never occurs the choice of any foreign law regarding
the ownership of cars, and therefore the security of the transaction within Japan is maintained.
See also HAYAKAWA (supra note11) 277. Hayakawa said that, due to the formulation, Japanese Law
is chosen as applicable for ownership in almost all cases in which a car physically exists in Japan, and leads to
maintaining the security of the transaction within Japan in terms of the choice-of-law dimension.
32 See DOGAUCHI (supra note 11) 129. Dogauchi criticized the High Court’s judgment as setting
an excessively high value on the “static” security of the transaction. Very interestingly, according to the conventional
wording among Japanese scholars, consideration for the connected and accumulated causal relationship of
transactions has been identified as “static” and to the contrary, the consideration for the exclusion of such causal
relations for establishing the exclusiveness and independence of the position of ultimate title holder is expressed as
“dynamic” security of transaction. See also TAKASUGI, Case Note, Shiho Hanrei Rimakusu 2001-Jo (2001) 147
and NARASAKI, Case Note, Heisei 12 Nendo Juyo Hanrei Kaisetsu (2001) 293. They considered the security of

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