„Der Entscheidung der Deutschen Behörde unterworfen“

Ein rechtshistorischer Blick auf die deutsche Konsulargerichtsbarkeit in Japan

Abstract

This article deals with German consular jurisdiction in Japan in the years spanning from 1863 to 1899. In the first part, the international and German legal basis for the exercise of consular jurisdiction and its development from the Prussian Consular Jurisdiction Act of 1865 to the Consular Jurisdiction Act of the German Empire of 1879 and beyond are presented and analyzed. A second part uses historical sources to gain an insight into the practice of consular jurisdiction on the ground in Japan. It deals with the transfer of consular jurisdiction from commercial electoral consuls to legally educated professional consuls in 1878, the composition of the consular courts with a focus on the consular court in Hiogo-Osaka against the background of the local German community, as well as the question of the local customary commercial law applied and the treatment of Japanese statements before the consular courts.

The consular courts were primarily called upon in commercial matters and predominantly in disputes between subjects of the Western powers. Although the establishment of consular jurisdiction in itself represented an undeniable disadvantage for Japanese plaintiffs in their own country, it is also shown that there is no evidence of discrimination against Japanese plaintiffs at least in the proceedings in individual cases before the consular courts.

The article also argues that the exercise of German consular jurisdiction in Japan has become legally professionalized after a dubious start with commercial electoral consuls, but ultimately had to reach its systemic limits in the context of the limited conditions on the ground, namely small, considerably commercially dominated German communities.