| This thesis consists of an introduction and eight chapters in 330,000 words.The thesis is a detailed study of the main legal issue concerning the claim by Chinese civilian victims of the war for payment of compensation from Japan. It expounds the point that it is a relatively independent right for the war victims to claim for payment from the inflicting country. Any inflicting country should perform its obligations stipulated in the international law in accordance with its domestic law.From the viewpoint of the law suit itself, apart from the international political and diplomatic factors, whether the Chinese civilian victims of the war can succeed in claiming for compensation against Japan largely depends on whether the tortious acts can be established and whether there is the legal basis for the judgment that the inflicting party should pay the compensation. In the judicial practice of the Chinese civilian victims' claim for compensation against Japan, although the Japanese government shunned the issue of tortious acts, most Japanese courts receiving and hearing such cases acknowledged their establishment. Therefore, it is not necessary to expound and prove the tortious acts. Nevertheless, in view of the structural composition of the thesis, it is highly necessary to summarize and briefly expound the cause and effect between the atrocities committed by the Japanese soldiers during the Sino-Japanese war and the claims for compensation by the Chinese civilian victim of the war. For this purpose, beginning from the first chapter, this thesis categorically dwells on the atrocities inflicted by the Japanese invaders on Chinese civilian victims in violation of the international humanitarian laws.The second chapter deals with the various forms of action taken by Chinese civilian victims of the war and also briefly summarizes and comments on all the judgments (or reconciliation) made by Japanese courts. In terms of collecting and summarizing historical data, this chapter provides valuable materials for later generations to make further studies from different angles. This chapter is written mainly to show the grounds on which the Japanese government makes its defense and the general grounds on which Japanese courts give positive or negative judgments on such law suits, forming a necessary basis for the following chapters to make further and specific analysis. In the judicial practice of the Chinese civilian victims' claim for compensation against Japan, the dispute on the legal basis for holding the inflicting party liable is the most challenging in the entire process of claiming for compensation against Japan. The Japanese government takes it as the main grounds of defense that "individuals should not invoke international laws to make claims against inflicting country for payment of compensation", "the state bears no burden of pleading' 'the law suits have passed theprescription" and "the claim against Japan for compensation by the civilian victims of the war has already been waived in the inter-governmental treaties", which are accepted by most Japanese courts. These so-called grounds of defense of the Japanese government have constituted major legal obstacles to the Chinese civilian victims of war in their effort to claim for compensation against Japan.Chapter four to chapter seven make in-depth and specific studies of the grounds of defense of the Japanese government. Considering that the restriction of the right of war and the humanitarian law came into being during the transition of the international law from modern international law to contemporary international law, especially that the traditional "right to war compensation" has been developed and changed into the new "right to war compensation" including both the government claim for compensation and individual claim for compensation. In the previous chapter, i.e. Chapter Three, the thesis gives a study on the restriction of the right of war and on differentiating the government and individual claims for compensation.Chapter HI dwells in two parts on the study of the development of the restriction of the right of war in the international law. The first part of the chapter on restriction of the right of war dwells on the inevitability of the trial of war criminals by the international court martial. The Tokyo Far East Court Martial judged that the Japanese military actions were illegal aggressions and meted out punishment to the Japanese war criminals. Later on, the Japanese rightists raised quite a lot of queries about the jurisdiction of the court martial in an attempt to reverse the judgment. The thesis makes a summary of and refutes these queries, justifying the jurisdiction of the court martial and showing the significance of the trial in Tokyo. The reconfirmation of the nature of Japanese aggression stresses that the harm caused to non-combatants in violation of principles of war constitutes a governmental liability, and therefore the country that waged a war of aggression in violation of international law and its atrocities that caused harm to non-combatants of the victim country should no doubt constitute its governmental liability. This chapter is written to indicate the political and moral justification of the Chinese civilian victims' claim for compensation against Japan.The second part of the chapter is made up of section 3 and section 4. It dwells on and expounds the development of humanitarianism and restriction of means of wars, focusing on the various warfare stipulations that had already been legally binding on Japan before it waged the aggressive war on China. Nevertheless, legally speaking, it is far from enough only to prove that the warfare stipulations were binding on Japan. This is because The Japanese government has technically pointed out that it does not deny its liability to make compensation as is stipulated by the international law, that such an issue has been fully settled through the peace treaty between the countries and that the government cannot take the responsibility for direct payment of compensation to individuals. Against this argument of the Japanese government, the thesis argues and proves that the international community has already recognized the differentiation between the right of the governmental claim for compensation and the right of individuals claim for compensation. The "separation" of the right of civilian war victims to claim for compensation is one of the important legal bases for them to make such claims. The thesis quotes a lot of facts showing applications of the international law to prove the indisputability of the argument, providing the legal foundationfor the law suits in this respect.Chapter Four of the thesis is a study of the waiver of claim against Japan for war compensation. It gives an overall analysis and exposition of the Japanese grounds that the Chinese government has already waived the right of civilian victims of the war according to historical facts, diplomatic background, relevant treaties, compacts and the decrypted Sino-Japanese diplomatic documents. Section one of the chapter gives a detailed description of the misinterpretation by the Japanese government of the San Francisco Peace Treaty, of its denial of the legal validity of the Sino-Japanese Joint Communique and the consequent issues. The thesis proves that the San Francisco Peace Treaty not only has no legal binding force on China, but it also violates the purpose and spirit of the Declaration of the United Nations. It also proves the basis on which China took over the Japanese assets in China, and points that such assets were by no means the benefit obtained according to the San Francisco Peace Treaty as falsely stated by the Japanese government, but rather the enemy property confiscated according to warfare stipulations.To refute the denial of the validity of the Sino-Japanese Joint Communique by the Japanese government resorting to the Japan-China Treaty, the second section analyses the background in which the Japan-China Treaty came into being, and gives a full exposition of the common understanding of the two countries that the Japan-China Treaty is of no validity as stated in the "three principles for the resumption of the diplomatic relations between China and Japan", which was confirmed in the Sino-Japanese Joint Communique and the Sino-Japanese Peace and Friendship Treaty. To refute the recent allegation of the Japanese government as a ground of defense that when the Japan-China Treaty was concluded, the government representing China was the government of the Republic of China, which represented China in the United Nations, and there were more countries recognizing the Republic of China than those recognizing the People's Republic of China in the world then, the thesis expounded that the Taiwan authorities went beyond the right to conclude treaties in their signing the peace treaty with Japan, the defeated country, on behalf of the entire Chinese people, and that whether a government is legitimate or not is determined by the people of that country rather than by any recognition from other countries.The third section of the chapter gives a detailed analysis of Clause V of the Sino-Japanese Joint Communique that "the P. R. of China declares that, for the sake of friendship between the Chinese and Japanese peoples, it waives the right to claim for war compensation against Japan." The thesis expounds that it is not likely for the Chinese government to waive the right of civilians to claim for compensation, and also gives a detailed list of peace treaties that the Japanese government concluded with war victim countries, which fully indicates that the differentiation of the governmental and civilian's right to claim for compensation was already widely recognized by the world community. Before the conclusion of the Sino-Japanese Joint Communique, it was not possible for the leaders of the Chinese government not to have analyzed and studied the contents of peace treaties concluded between Japan and other countries. It therefore follows that the statement in the Smo-Japanese Joint Communique reflected the carefulness and wisdom of the Chinese leaders by declaring that the right it waives is only the governmental right to claim for compensation against Japan.Whether the Chinese civilians' right to claim for compensation against Japan has been waived or not is the most crucial issue of all the grounds of defense employed by the Japanese government. If such grounds of defense were not effectively refuted, it would be meaningless to make other breakthroughs out of other legal obstacles.Chapter V analyzes the principle of "the state bears no burden of pleading" ('Country bears no obligation to reply') referred to by the Japanese government. After expatiating on the origin and evolution of the principle, as well as the birth and development of the state compensation institution, this part introduces detailed arguments between Plaintiff and Defendant on the principle, which the writer finally demonstrated minutely, from different aspects such as nomology, substantive laws, obligations of holders of the public power, extent of subjects with liabilities for their tort actions under the Japanese Civil Law, prejudication, and principle of fairness and justice, is rather an untenable theory and can't be relied upon to judge cases in Japan, where substantive laws are the only legal standards in case trials, whilst legal theories and prejudication are not legal sources since Japan is a civil-law country. In conclusion the inference that the state bears no burden of pleading"('Country bears no obligation to reply') isn't a proper legal excuse for prohibiting Chinese civilian war victims from claiming compensation against the Japanese government.This part touches upon complicated issues in fields of public law, private law, prejudication, nomology, even philosophy, which is a rather challenging, pioneering, and academic research subject in public law field.The 61 chapter analyzes from several aspects the international law and the ground of pleading that 'individuals can't invoke international treaties' resorted to by the Japanese government.Most war victims referred to international law as part of legal foundation in their legal proceedings against the Japanese government in Japanese courts, especially Article 3 of Hague Convention Respecting the Laws and Customs of War on Land, "A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces." Plaintiffs stressed that this article granted individuals right to sue a country.The Japanese government rejected it by proposing 'individuals are not principal part in international law'. This dissertation first expounds pre-Convention and post-Convention international practices with several related cases in some countries, and brings the digressing arguments of both parties in the past back to the reasonable way. Individuals needn't invoke international law after their establishing that they are its principal part and, instead, the civilian war victims could sue Japan on the ground that they as individuals are entitled to the national treatment of Japan, and could cite international law including international customary law to request Japan to abide by the international treaty as 'pacta sunt servanda'. On application of international treaty, section II in this chapter studies applicability of international human rights conventions to cases concerning the interests of individuals ofthe related member countries. The writer argues that member countries are obligated to enforce these treaties through incorporation or transformation so as to satisfy the 'pacta sunt servanda' principle without national liabilities which will otherwise occur. Countries, of whose nationalities these individual war victims are, are empowered to resort to diplomatic protection under certain circumstances, which is another way on the state level to require the forum state to carry out its liabilities for non-performance. Further, this dissertation specifically studies the application of such treaties in Japan, and infers that Japan should apply international treaties directly if no transformation is made to make them enforceable domestically. Ultimately comes up the conclusion that civilian war victims are indeed granted the right to cite the above Article 3 in Japan.Chapter VII makes a deep research on maturity of statutory period and 'exemption period' for such litigations by Chinese civilian war victims, another argument of Japanese government. Starting point of the above two periods, together with other related precedent judgments by the Japanese courts and those on such litigations demonstrate that it is totally unjust for Japanese courts to require these victims to make "timely claims of their rights' without regard to the existence of objective obstacles to bringing civil actions for compensation against Japan, and not only clearly unfair in setting the starting point from the date when indicted torts were done disregarding the special circumstances of the victims, and circumstances such as the fact that there was no diplomatic ties between China and Japan, but which also betrays the purposes of 'exemption period' institution since such period is nothing but academic explanation or one presented in some cases.Comparison is made between particular clauses and general principles in the Japanese civil law, at the same time, means of induction, deduction, and syllogism are employed to make a deep and delicate study on purposes of those two period institutions and a few academic theories concerned. Hence arises the point that starting point didn't really start as formerly decided by Japanese courts, besides that 'exemption period' as an academic theory is not applicable to the afore-mentioned litigations.After a thorough research on the issue and overruling these major grounds of pleading of the Japanese government, it is necessary to consider other ways for individuals to claim compensation against Japan. For that purpose, Chapter VIII introduces the Chinese victims' ongoing actions against Japan in America pursuant to Hayden Act, and illustrates its positive significance.Then in reply to some local scholars' proposal to 'sue Japan government in China', this dissertation expresses its opinion that cases appropriate to be lodged in China are limited to those on forced labors according to the theory of 'limited exemption for a state' in the international law. If over extending the jurisdiction over the Japanese government on any issues by the local government with no applicable law to follow, this proposal will eventually arouse anger among civilians against local government for not exerting such jurisdiction.Combining litigation responsibility that Japanese government has with its national liability, this dissertation indicates that Chinese nationals enjoy diplomatic protection from their government, which is a righteous means to press Japan to perform its obligation underinternational treaties by granting fair compensation to war victims. Besides, another means worth of great efforts is to resolve such historical issues through bilateral diplomatic negotiations in light of Germany's post-war compensation mode for the sake of the long-term friendship between the Chinese and Japanese peoples.The last part of the 8th Chapter unwinds discussions from different aspects on understanding such litigations' significance and future developments in the Sino-Japan relations. This book emphasizes as its core idea that actions to claim compensation against Japan aim, with priority, to seek fair and justice, maintain basic human rights for war victims, recover victims' dignity, as well as the nation's dignity, simultaneously on the other side, disclose atrocities committed by Japanese army during its invasion into and occupation of . China, and alarm the global community including Japanese nationals of militaristic trend Japan, opposite to right-wingers attempting to falsify history and justify its invasion. With a long term cause in mind, this book points out that such actions are welcome not only for peace in Asia and global peaceful order, but also for construction of real permanent peaceful coexistence between the Chinese and Japanese peoples.The writer shows readers that Sino-Japan relations couldn't be improved only through China's unilateral efforts, in contrast with 'new thought' theory for the development of Sino-Japan relations. It would probably bring unwanted effects after China makes arbitrary concessions without any reference to different characteristics of different issues in all fields. Diplomatic policies of a country shall serve its national interests, which for certain embody, but are not limited to, economic interests.Only after China established a true friendship with Japan, a neighboring country just a narrow strip of water away, could both countries benefit from each other, which is of much significance to Asia and the world. There are in Sino-Japan relations three barriers, one historical, one territorial, and another concerning Taiwan, among which the key to start harmonious relations is whether Japan confesses in bona fide its atrocities during World War II, particularly its war of aggression against China, and in addition, ceases to behave little in concert with its promise regarding Taiwan issue.Expansion of Sino-Japan friendly relations demands reasonable actions from both governments and civilians so as to help build a benign institution for Sino-Japan intercourse, in addition to correct cognition on such relations.In the end, the writer ventures to talk about the significance and value of this dissertation.The hinge over the win-or-lose issue in these litigations is what law judgments are made pursuant to after most Japanese courts have to confirm those atrocities since civilian claims for compensation against Japan by Chinese civilian war victims are lodged in court. The four aforesaid grounds of pleading that the Japanese government proposed have become quite tricky legal barriers before the Chinese civilian war victims. The Japanese government has continuously amended for a long time its deraignment, which at present forms a huge demurring linkage. Although Japanese solicitors and scholars for victims have brought many valuable arguments and theories, some claims however are relatively weak and in need ofmore strength and amendments while some others have gone wrong, and must get corrected with a fresh review. In 2000 the writer began conceiving and thinking of writing a monograph on legal issues in civilian claims for compensation against Japan in order to do help to such civilian claims for compensation against Japan.Activities of Chinese victims in World War II claiming for compensation against Japan, is what the author have been concerned about for a long time. I have participated directly into activities of this sort in China since 1998.1 had the honor of participating in the organization and preparation of conferences on international issues, as well as being invited to attend academic conferences both international and domestic for many times. In December 2000, as the prosecutor representative of Chinese civil prosecution group, I attended the International Tribunal for War Crime Against Woman held in Tokyo. In 2001, I joined the hot debate against Japanese lawyers on whether settlement of Hanaoka case impairs Hanaoka labor's interests. In 2002,1 participated in the shooting and making of documentary TV series which introduces left-wing social activists of Japanese non-governmental organizations, and also went to City Yiwu to investigate war victims for many times. Due to the "August 4th Mustard-gas Bomb Event", in 2003, I organized and promoted the campaign "Millions of Signatures Online Petition" opposing Japan government. As a legal consultant to the plaintiff group of victims injured in 731 germ warfare, I was designated by Japanese lawyers group for the plaintiffs and delivered the second civil section of Tokyo high court the Appraisal Concerning Claim for War Compensation Against Japan as expert testimony. Permitted by the judges of this case, I gave testimony in the court when the second civil section of Tokyo high court heard the case. The Appraisal is purposed to establish that it is impossible for the China-Japan Joint Declaration to waive the right of Chinese civilian war victims to claim for compensation against Japan etc.Having been engaged in activities of civilian claim for compensation against Japan for a long time, the author has founded a deep friendship with the lawyers, scholars and left-wing social activists who support these activities, as well as plaintiffs who claim for compensation against Japan. During these activities, I am honored to build a long-term cooperative system with the deputy-president of the Japanese Lawyer Group for Chinese Victims in the War. With hospitable help offered by friends, I am able to make a relatively integrated collection of various litigation materials and judgments with regard to claim for compensation against Japan, which make me carry out the research in a much wider vision, enrich research, and make me see further. The author publishes academic comments on the Japanese courts' gross unconscionability at the first time, some of which are published in journals and media overseas. In order to promote activities of civilian claim for compensation against Japan and make it more convenient for people to know about and research on the skeleton and focuses of claim for compensation against Japan, the author has set up a website where articles and opinions are served for readers' reference or adoption. At all times, I insisted that a legal perspective should be used when analyzing, revealing and refuting any new measures taken by the Japanese government and court of Japan. As far as outcomes of this research project are concerned, some of the author's achievements form the cutting edge in this area.Now, this dissertation of The Legal Basis of Chinese Civilian War Victims Claiming for Compensation against Japan, is not only a dissertation for the doctoral degree, but also partof a sacred career that I have pursued with all my heart, for it is purposed to protect and maintain the nation's dignity, to comfort the soul of 350,000,000 compatriots who were killed innocently in the war, and also to prevent the revival of militarism in Japan.This article involves various subjects and related fields, such as international public law (including treaty law, law of war), private law, civil law, state compensation law, civil procedural law, constitutional law and even legal philosophy; it also refers to issues regarding international relations, diplomatism and history. 5 years has been taken to sum up and make a sortation of numerous materials collected, on the basis of which comprehensive analyses are made against Japanese government's main defenses. Methodologies of analysis, deduction and comparison are used when substantive law, international practice, judicial cases as well as theories of all subjects related are referred to when discussing arguments in those defenses. With step-by-step demonstration and careful analyses, a conclusion is drawn that the Chinese civilian war victims have the unquestionable right to claim for compensation against the Japanese government whose defenses are full of errors and lack of support of substantive law, which renders nothing but legal obstacles. People may doubt whether this dissertation is composed with a pragmatistic purpose to cater for the current hot topics. However, it is concluded from the meticulous logical argumentation, that it is a independent right that war victims claim for compensation, and any infringing state is liable to perform its responsibility under international law in its domestic level. This is the principle of responsibility of states that is beyond the scope of traditional international, and thus made it is meaningful to research and promote this principle. Modern international law's total limitation of right of war (except self-defenses, armed revolution of a nation) is the most important difference between it and traditional international law. Thus the establishment of a set of international law rules with regard to legal responsibilities a infringing state who wages war owes to civilian war victims is of great significance not only for the maintenance of world peace but also for the development of international law, especially international human rights law. In this perspective, the author's dissertation is of unusual meaning and value both in the practice field and in the academic field of international law.The Japanese government has set up a writing group of experts to put forwards defenses and causes of legal philosophy that consist of a great number of contents and thus constitute a theoretical defense system that endangers the legitimate rights and interests of Chinese civilian victims in the war. In the view of the extent and depth of the meaning and theories involved, it is more appropriate that the state should undertake this research project.Till now, some other domestic scholars have published their works on related research projects, which however lacks pertinence. The consequence is that Chinese scholars and Japanese scholars talk about their own respective opinions., and there is not substantial debates and contests with respect to law and legal philosophy.After having submitted to Tokyo High Court the Appraisal which is purposed to establish the impossibility of China-Japan Joint Declaration's waiving of right of Chinese civilians victims in the war to claim for compensation, and having given testimony in the court, the author has, with his testimony, at least, made the Japanese court give up the argument that China-Japan Joint Declaration has waived the right of Chinese civilian victims in the war toclaim for compensation against Japan. This fact and the tendency of development in this respect are evidenced by the judgments made on Dec 15th. 2004; and Apr 18th. 2005. In this sense; the author's research project has fulfilled the blank in the domestic academic area.In 2001;1 was honored with the opportunity to study in East-China University of Politics and law for the doctoral degree. A much higher standard is required of me than what I expected in my draft outline. I have benefited a lot from the courses arranged by the university. I would like to express my sincere gratitude to respected professor Zhou Hongjun; who gave me enlightening guidance with great prudence on the structure and other aspects of this dissertation.
|
PDF Full Text Request