Die Wurzeln des Rechtsmissbrauchsverbots in Japan

Anmerkung zum Unazuki Onsen-Fall, Entscheidung des Reichsgerichtshofs vom 5. Oktober 1935

Abstract

In this article, the groundbreaking Unazuki Onsen decision of the Imperial Court of Justice is presented in its historical context and used to depict an important milestone in the concretization and expansion of the prohibition of abuse of rights in Japan.

Although the prohibition of abuse of rights in Japan was only first codified in the Civil Code in 1948, case law had applied the doctrine since the 1910s, starting with the decision in re Shimizu v. Japan. As a general clause, the conditions of application are deliberately kept broad; to this day, the conditions of application primarily consist of the court gathering subjective and objective arguments which render the exercise of a right improper. The doctrine’s application constellations include rejection of an abusive claim, the restriction of rights, and the substantiation of claims for damages.

Both the reasoning process of the courts and two of the three constellations in which the doctrine is applied can be traced to the Unazuki Onsen judgment of the Imperial Court that is discussed in the present article. In that judgment, the court rejected as an abuse of rights a claim for removal of a water pipe in a situation where an individual who was aware that an illegally laid water pipe ran under a parcel of land had, nevertheless, bought the land with the intention of blackmailing the operator of the hot spring – which relied on the water provided by the pipe – with a possible action for removal. The Imperial Court found that the plaintiff was merely using the right as a tool for an end, and that consequently there was not an exercise of a right but rather an abuse of a right that the courts should not endorse. In rejecting the claim, the court took into account both the reprehensible intention of the plaintiff and the objective economic and social consequences of upholding the claim. At the same time, the wording of the judgment also allows for the conclusion that an abusive assertion of rights in court is itself a tortious act.

This judgment is cited in almost every Japanese civil law textbook in relation to the Code’s General Part. The reason for this is that the clear facts of the case and the manifestly malicious exercise of rights allowed the Imperial Court to set out clear and comprehensible criteria and balancing factors for application of the prohibition of abuse of rights doctrine, all of which are still valid today. At the same time, the ruling significantly extended the scope of application of the doctrine beyond tort law to general civil law.