The Right Of Injunction Claim On Japanese Law

By combing the development of precedents and theories about the right of injunctionclaim on Japanese law, studying scholars’ proposals in the wave of amendment of the civil law,we could find the protection of personality right and related legal interests gets more andmore strengthen，that may enlight the similar system about the right of injunction claim andlegislation on the personality right in china.Besides preface and epilogue，This dissertation is composed of six parts.Part One mainly focuses on the concept of the right of injunction claim on the illegal actsin Japan. The right of injunction claim can not only be applied to the civil law. As a matter offact, there are express provisions for injunction in the commercial law, the intellectualproperty law, the anti-unfair competition law, the antitrust law, and the consumer contract law,rendering there are laws to abide by when the victims cite injunction. However, there are stillsix shackles in the injunction remedy in the civil law, for example, the fuzzy wording,incomplete substantive law, incomplete procedural law, the disorder in the law reception andso on. Compared with the money remedy, the recognition of right of injunction claim allowsto further relieve the value entity of the protected, equipped with the preventive, creative andaltruism remedy mechanism. As far as the civil remedy in such cases as public nuisances,immission, reputation and privacy is concerned, it is of clear significance to form the remedyand realize the value of the process.Part Two combs the precedents of reputation damage and privacy infringement in theright of injunction claim and their development. After the World War II, the precedents relatedto public nuisances increases the type of injunction request beforehand. After the SupremeCourt denied injunction request in “Osaka International Airport Case”, many lawsuits havedecided or held to reject injunction request in a variety of reasons, which can be described asthe “cold winter” of injunction request for public nuisance. With the frequent urban complexair pollution, road noise and other issues, the “State Road43Line Case”, which is regarded asa favorable turn, holds that the illegality of injunction is different from the damage, in whichthe bearable (acceptable) limit theory and the publicity should be adopted to conduct interestmeasurement, which can be described as the new trend of injunction request for publicnuisances. After that, the judgment on the “Amagasaki Air Pollution Nuisance Case” recognized injunction request. The “Southern Nagoya Public Nuisance Case” supportedinjunction request based on the personality right. A certain number of profitable publicfacilities in the construction of urban life, likely to encroach on life or health, constitute lifeprejudice, which brings a sense of insecurity and terror. As for terror, the “Injunction on No.2Nuclear Reactor of Shiga Nuclear Power Plant operation case” can be described as “warmspring” of injunction request for life prejudice. District Court has affirmed that the personalityright can be used as the basis of injunction request, and recognized injunction request after itexceeds the bearable (acceptable) limit of the residents. But then it was rejected by thebearable (acceptable) limit theory in the “P4Transgenic Laboratory Case”, in which the courtdid not recognize injunction. As for anxiety, the “Mori-machi Waste Disposal Field Case”recognized injunction. People living in the city pursuit livable urban environment，Forexample, the “National Landscape Case” can be described as a new trend in life prejudice.First Instance once recognized injunction on the basis of illegal acts. However, the landscapeinterest is characterized with the dual public and private color, whether it violates the publiclaw or not becomes restriction standards for no expanded recognition of injunction request.Finally, the Supreme Court only recognized that the landscape interest belongs to the“interest” protected by Article709, not belonging to rights. After that, the awareness on theillegality in the “Kyoto Okayama Case” the judges gradually despises regulatory roles ofadministrative regulations. Most types of the precedents are affected by the bearable(acceptable) limit in borrow judgment on illegality in the illegal acts, hold that the basis ofinjunction can take the constituent of personality right and illegal acts, and deny theconstitution of the environmental right.Part Three combs the precedents of reputation damage and privacy infringement in theright of injunction claim. In the illegal acts, another important type of the precedents oninjunction request is related to the cases of reputation damage and privacy infringement. Theprotection of reputation and privacy is often associated with coordinated guarantee ofexpression freedom. The “Northern Journal Case”, which the judges prudently measures therelationship between reputation and the guarantee of expression freedom, holds that thereputation of the personality right should have the same exclusive right as the property right,and recognizes injunction, is epochal. As for whether the fact that news report causes damageto the reputation of others exerts lower judgment criteria of social evaluation or not, take“Dioxin-contaminated Tokorozawa Marinated Spinach Case Reported by Asahi TV Station” as an example, the majority of judges believe we should adopt “the general readers’ ordinaryattention and read methods”. When the relevant expression has a stake with the public,specifically for the purpose of the public interest, and with relevant facts to prove the truth ofthe case, there would be no illegality. As for privacy, in the Case “after the Banquet” the civilprecedents have gradually recognized the self information control right in the privacy right,and recognized personality interests in the reputation feelings in the Case “Swimming Fish onthe Stone”, taking the reputation right in the personality right to make injunction on thepublish of the novel. The freedom of expression is subject to the provision that the publicwelfare shall not infringe the rights of others in Article12and13of the Constitution. In thecase of reputation damage, authenticity can be used as the defense according to universalstatement and the precedents to negate the illegality. However, in the case of privacyinfringement, authenticity can not be taken as a reason for the defense. As for the precedentson reputation damage or privacy infringement of an individual, it is necessary to undertake acomprehensive measurement of interest, and then decide whether to recognize the right ofinjunction claim based on the personality right.Part Four combs the theoretical structure of the right of injunction claim. As for theprotection based on the right of injunction claim, the traditional theories hold that it shall be inprinciple limited to the exclusive eminent domain. As for the legal interests without theexclusive eminent domain but requiring urgent protection in social values, there are four maintheories, namely, right theory, the theory on illegal acts, the theory on illegal infringement andthe theory on binary structure.The right path taking the “University Bath case” as an opportunity focuses primarily onexpanding the scope of infringed legal interests. The right theory holds that the theoreticalfoundation of the right of injunction claim contains the traditional right to claim the propertyright, the personality right, the environmental right, and so on. In the framework of the rightto claim the property right, it cannot protect the non-property right. Therefore, among somany theories on right, the theory on personality right of the strong theory holds that theindividual has the absolute right or personal interest of exclusive eminent domain, and suchpersonality rights enjoy the right of injunction claim when subjected to unlawful infringement.In the situations limited to public nuisance, the environmental right theory advocates legalprinciple of environment co-ownership, in which everyone can enjoy and dominate theenvironment regardless of whom you are, and can directly request injunction once the environment is violated or infringed in danger, which is very compelling. Some scholarscriticize that even if based on the right structure, it is also possible to measure the interest saidabove; and the legal rights of the personality right and the environmental right are not clear.The behavioral path taking “Shingen Pine with Public Flag (anthor’s notes: the pine withTakeda Shingen flag) Case” as an opportunity, focuses primarily on the reflection of theillegality, the illegal acts have the function of inhibiting the act of infringing rights andinterests. The new bearable (acceptable) limit theory stresses that the fact of emphasizing themeasurement of the illegality with “the bearable (acceptable) limit” unifies the elements ofintention, negligence and the infringement on right and other acts as the bearable(acceptable) limit, including the unified illegality of liability without fault, which canovercome the negativity of abuse of rights, amends the interest measurement on the relevantrelationship theory from the aspect of measurement reasons and determination benchmark,and holds that it requires more considerations into the region, precedence relationship of landuse, the most appropriate methods and prevention measures, the necessity of other socialvalues and other factors. Some scholars criticize that there is no difference between thebearable (acceptable) limit theory and objective theory, essentially pose a very strong meaningto set the bearable (acceptable) limit theory to the position of liability without fault; so that thebusinesses which commit the prejudice take too many precaution measures against theprejudice and recognize injunction claim when no damage happens, which interferes withbusiness freedom.The illegal infringement theory holds that when a legal interest is illegally violated(order), with the necessity of protection, the right of injunction claim may be launched aftermaking the relevant interest measurement on the all circumstances. There is no expressprovision on injunction claim whether based on the property right or the personality right, so“injunction” is the hope of the law to stop illegal acts. This said theory, enlightened by theright to claim the property such as one of the usurped theory in German, concludes that theright of injunction claim originates from the right or the external effect of the legal interests.For example, the orders in the Unfair Competition Law and Antitrust Law, ConsumerProtection Law, and Environmental Law are related to the public interest and the privateinterest, difficult to have exclusive eminent domain, which can be interpreted as that the lawendows the individuals who concern, maintain, or restore the said legal order and legal systemfunctions with the right of injunction claim. Some scholars criticize that the said theory claims the existence of the right of injunction claim, causing the confusion between the legislationtheory and the interpretation theory; and hardly taking the violation of order as the specificmeasurement standards in the findings; The usurped theory fails to explain its minor role inGerman, and also fails to clarify its relevance with the Japanese civil law.The binary theory divides the legal interests into two categories, one is that propertyright, personality right, environmental right and the like are the rights with the absolute natureand strong exclusivity, people with the rights may directly request injunction claim; while theexclusivity, relatively weak and the right widely recognized by the community and protectedby the law, may request injunction within the framework of the illegal acts. The said theorycombines the advantages of the right theory and the illegal act theory, advocates the two-stagestructure of the legal interests, distinguishes the absolute right and the legal interests otherthan the absolute right, makes distinction among the patterns of the infringement and makesinterest measurement. The illegal infringement theory, which criticizes the binary theory,holds that whether radicalizes which theory, there may be contradiction between the illegalinfringement theory and the binary theory. All theories on the right of injunction claim,whether they adopt which legal structure, inevitably refer to the elements of the binarydivision of the legal interests. The binary structure may play the role of balancing the remedyof the victims and the guarantee of the activity freedom, balancing the creation of wealth,protecting personality right and creating the demand for comfortable life, which conforms tothe purpose of pursuit of happiness.Part Five studies the right of injunction claim “entrance into the law” and the amendmentof the civil law. The discussions on the three proposals of the right of injunction claim and thecontents therein by the Civil Law Correction Committee are ultimately reflected in the“illegal acts” in Chapter VI of the Japan Civil Law Correction Scholar Case (as of1January21Heisei). Damages and the parallel provision on injunction appear in Chapter I, in whichSection Two makes separate provision on “injunction etc.”, adopting the binary structure ofthe right and the interest inferior to right, further enumerating the contents on personality rightsuch as life, body, freedom as well as reputation and credibility. As for injunction claim, thesaid provision expressly proposes the binary theory of “infringement on rights andimpediment of illegality” and “infringement on interests and tolerance limit”. Since onlyArticle723in the civil law provides the restoration of reputation damage, the disputes overwhether illegal acts contain the restoration concerns the relationship between injunction and restoration. The restoration and injunction requires no negligence and loses the substantialreason for the distinction in the aspect of reputation damage. Some scholar holds that it ispossible to recognize restoration as the effect of injunction request for the illegal acts and as amatter of fact the illegal acts in Japan do not recognize the extensive restoration. It is verynecessary to recognize the effect on the base of the right to claim the property right and theright to claim the personality right and should cover the occasion of the concurrence ofinjunction and restoration. Therefore, injunction and restoration should be intensivelyintercrossed and recognized.Part Six studies the enlightenment of the right of injunction claim in Japan on the law inChina.In the civil law legislation history in China, the expressions like injunction are thecombined provisions such as “stopping the infringement, removing the obstacle andeliminating the danger”, causing they can be applied to not noly tort field and possibly thefields of property right, intellectual property right and personality right and the disputes overthe application continue to the present. The system similar to the right of injunction claim inJapan should be placed in which position, which deeply influences the constituent of thefuture civil code in China. The theoretical circle mainly holds three theories on the systemsimilar to the right of injunction claim in Japan: the right to claim on the absolute right, theright to claim on infringement and the compromise theory. There are scholars in Japan holdthat in the tort liability law and the property law in China have the system similar toinjunction, equivalent to the relationship between the general law and the special law. Incombination with the attitude of some scholars and the justice, and the cases and theories oninjunction in Japan, from the perspective of remedy, whether the right to claim on the absoluteright or the right to claim on infringement, there is no much difference in the value judgment,legal constituents and effect on the protection of the important legal interests such as theproperty law and the personality law in Chinese and Japanese civil law and the majordifferences exist in the legislation technology.Through the analysis the cases, theories and the public awareness on injunction claim inJapan, it can be concluded that various specific personality rights come into being at a certainstage. In combination with the national conditions in China，there probably be no remedy ifthere is no right by the court，it is necessary to make special legislation on the personalityright. Then with reference to the legislation and the scholars’ opinions in China, it is necessaryto consider the awareness of the public (bearable (acceptable) limit) to make interest measurement concerning the legislation of the personality right. At present, there are threeproposals about legislation modes：the first one follows the position of the General Provisionsin the Civil Law, separately organized; the second one adopts the practice in the Swiss CivilCode, in which the personality right of the civil subjects are provided in the “Civil Subject”;and the third one endows the defensive protection of the personality right in the tort liabilitylaw. Compared with the legislation and justice in China and Japan, China can not provide thepersonality right in the tort liability law. And then whether the provision should be separatelyorganized and how to legislate belongs to the technology issue under the influence of thepolicies.