東아시아法系論에 관한 試論

Theory of East Asian Legal system

Jurists in East Asian Countries started to consider their own laws and whole East Asian Laws from new angles. They also have been interested in the establishing the similarities in East Asian laws and the result of the establishing being successful they would insist that there could be an unique law system in East Asia. The most important thing in the research is finding out the differellces and the similarities amOllg their ovm laws in fair pJsitions. As a matter of fact. there is a development of the Theory of East Asian Legal System mostly in Japan. but it is not enough organized. So it is hard to recognize the East Asian law based on this theoretical constitution as an unique Legal System. Furthermore, Japan has an wicked ambition to become a suzerian in East Asia behind the theory of East ASian Legal System developed in Japan. The develoment of the theory of East Asian Legal system with pure purpose must be stimulated, but the theory that Japan is the suzerian in East Asian Legal System without the objectivity must be thrown In to the discard. In these days, the almost nation in the world have challged their passive attitude to the Law into the active attitude and, what is more, the actual state of East Asian countries is very remarkable. After modernization, the law had controlled the nation actually with its absolute power as an irresistible righteous model. But now, the nation exercises the legislative power constructively for its aspiration is reflected in law and so many states also use their legislative power to make the modern law proper to the society of today. Especially in the early stage of modernization. East Asia had no choice but accepting the Western law: the Orientals couldn t disobey its justness for it was the absolute truth and it had a rationality that was never been thought by the Orientals. With this consequence, the Orientals had to assume passive attitude to the Western law and give of their best in studying the Western law. But recently, there are few differences in scholarship within the East and the West, and that weakens the blind obeying to the Western law. As the interests were carried to the difference of the Western and Oriental Society, the jurists got their concern in the reason why they couldn t activate their rule in Orient than the West, and the method how to diminish the difference in quality between the law and society. The legislation of the Orient is now more active than the West and the nation s attitude to legislation is more positive than the West. too. The Asian States have a desire that they would construct a new Legal System and break the rule of Western law: it had controlled the Asian World. They don t think that the old-fashioned system of the early stage of modernization can accept the East Asian Social change in 21C. And the movement of a new legislation of the Chinese Civil Code shows the tendency. Considering this tendency, we can make the law of contract with the common East Asian contract culture and the usage, furthermore we can also make the guideline that coordinate the law in the field of jurisprudence in the future.