1. Holdsworth, W., 3 History of English Law, 3rd edn. (1923) pp. 128–132Google Scholar; Holdsworth, W., 5 History of English Law, 3rd edn. (1923) pp. 330–332Google Scholar.

2. Sec, e.g., Kaplan, D. and Dubro, A., Yakuza: The Explosive Account of Japan's Criminal Underworld (1986)Google Scholar.

3. The sōkaiya, or ‘financial racketeers' are extortion artists who operate by alternately threatening to disrupt, and offering to instill discipline into, corporate shareholders’ meetings. Ibid at pp. 169–174, 262–263.

4. The sarakin are consumer credit institutions notorious for charging exorbitant interest rates and making use of underworld enforcement tactics. Ibid, at pp. 167–169: Banking laws in recent years have restricted the freedom of the sarakin some what Sato, K., ‘Economic Laws and the Household Economy in Japan: Lags in Policy Response to Economic Changes’, in Saxonhouse, G. and Yamamura, K., eds., Law and Trade Issues of the Japanese Economy (1986)Google Scholar.

5. See, e.g., Dean, M., The Japanese Legal System: A Trip into the Unknown', New LJ (02 23, 1990) p. 246Google Scholar; see also Kawashima, T., ‘Dispute Resolution in Contemporary Japan’, in von Mehren, A., ed., Law in Japan: The Legal Order in a Changing Society (1963) pp. 41–72Google Scholar.

6. Tanaka, H. and Takeuchi, A., ‘Hō no jitsugen ni okeru shijin to yakuwari: Nichi-Bei no hikaku o chūshin to shite’ (The role of private persons in the enforcement of law: centering on a comparison of Japan and the United States), 88 Hōgaku kyōkai zasshi (1971–1972) pp. 521, 89 id. 243, 879, 1033Google Scholar, translated in 7 Law in Japan (1974) p. 34Google Scholar.

7. Haley, J.O., ‘The Myth of the Reluctant litigant’, 4 J. Japanese Studies (1978) pp. 359–390CrossRefGoogle Scholar.

8. ‘Haley gives insufficient attention to the legal culture aspect of Kawashima's “Japanese legal consciousness” hypothesis and, taking it to consist only of an attempt to explain the small number of lawsuits in Japan through a “reluctance to litigate or aversion to litigation in general”, [citation omitted] arrives unsurprisingly at the obvious conclusion that no such thing is to be found among the Japanese.’ Rokumoto, K., Hō shakai gaku (Legal sociology), 2nd edn. (1988) p. 273 (this translation by Bennett, )Google Scholar.

9. In addition to the fact that the article was originally published in English, the contents of its often-cited first footnote clearly signal this to be the intended audience. Apart from reference to Kawashima's, own Nihonjin no hō ishiki (The legal consciousness of the Japanese) (1967)Google Scholar, every source in the list is in English. Some of the authors of cited works are Japanese, but the plain intent is to include sources with which a monolingual readership might be familiar. Haley, , loc. cit, n. 7, at pp. 339–340Google Scholar.

10. This is not to suggest that anecdotes have no place in legal study. Sometimes no more reliable source of information is available. See Ramseyer, J.M., Book Review: ‘Law and Trade Issues of the Japanese Economy’, 20 Law in Japan (1987) pp. 223–34Google Scholar.

11. It is difficult to stress enough be extent to which overseas perceptions of the Japanese legal system have been affected by sheer sluggishness in the flow of information. One seldom hears any objection at efforts to build comprehensive analyses of Japanese behavior on the inflated significance of a few Japanese words. Those who are fond of pointing out mat the Japanese vernacular for corporate takeover (nottori) also means ‘hijack’ might note mat ‘bull’ also has a number of colorful meanings, including ‘male bovine’ and ‘aggressive investor’. The physical weight of a dictionary does not lend much inertia to the meaning of the words printed in it.

12. Haley, J.O., ‘Sheathing the Sword of Japanese Justice: An Essay on Law Without Sanctions’, 8 J. Japanese Studies (1982) p. 265CrossRefGoogle Scholar.

13. See, e.g., Haley, loc. cit n. 12; Ramseyer, J.M., ‘Lawyers, Foreign Lawyers, and Lawyer-Substitutes: The Market far Regulation in Japan’, 27 Harvard LLJ (1986) pp. 502–523Google Scholar; Ramseyer, J.M., ‘Reluctant Litigant Revisited’, 14 J.Japanese Studies (1988) p. 111CrossRefGoogle Scholar; Ramseyer, J.M. and Nakazato, M., ‘The Rational Litigant’, 18 J. Legal Studies (1989) p. 263CrossRefGoogle Scholar.

14. See, e.g., Wolf, M., The Japanese Conspiracy (1983) pp. 301–315Google Scholar (die assertion that Japan needs to be hit with a baseball bat speaks for itself, to the extent that it speaks at all); van Wolferen, K., The Enigma of Japanese Power (1988)Google Scholar.

15. In reflections on the breakdown of communication at die time of the campus riots during die 1960s, Wayne Booth writes, ‘You and I and Bertrand Russell know, as surely as we know anything, that men are characteristically users of language … Not only do we talk and write and create art and mathematical systems and act as if we shared them: we really do share them, sometimes … That we often do not, and that the knowledge is never complete, is at tins point (in Booth's argument) irrelevant, though it has been sometimes talked about as if it proved that we are all hopelessly alone.’ Booth, W., Modern Dogma and the Rhetoric of Assent (1974) pp. 112–114Google Scholar.

16. Mimpō (Civil Code) (Law No. 89 of 1896; Law No. 9 of 1898), s. 177; Chūshakufudōsan hō (Annotated laws on immoveables), Volume 6: Hayashi, R. and Aoyama, M., eds., Fudōsan tōki hō (Immoveables registration act) (1988) pp. 76–77Google Scholar.

17. A number of qualifications are in order. Under Supreme Court precedent, if Buyer Two purchases with notice of an earlier conveyance to Buyer One, and if Buyer Two purchases in bad faith (haishin teki akuisha), Buyer One may avoid the conveyance. Saikō saibansho hanketsu (Decision of the Supreme Court), August 2, 1968, Minji hanreishū vol. 22, n. 8, p. 1571; Saikō saibansho hanketsu (Decision of the Supreme Court), January 16, 1969, Minji hanreishū vol. 23, n. 1, p. 18. The courts have also acted to protect purchasers in the event mat registration applications are not correctly handled. See infra n. 90 and accompanying text.

18. See, e.g., Kitagawa, Z., ed., Doing Business in Japan, vol. 1 (1989) ss. 4.03 and 4.08Google Scholar.

19. Fudōsan tōki hō (Immoveables Registration Act) (Law No. 24 of 1899), s. 14 (‘There shall be two types of register, the land register and the buildings register.’); Murata, H., Hōtei chijōken (The judicial lease tangible), in Hoshino, E., ed., Mimpō kōza, vol. 3 (1984) p. 139Google Scholar.

20. Denmark is another example of a jurisdiction in which the two are treated as separate assets, but the Japanese approach is more robust Japanese law gives statutory protection to leases which support the ownership of a building, while in Denmark such leases are allowed to expire according to their terms, at which time the lessor can demand that the lessee/building owner remove every brick of any structures owned by him.

21. Fudōsan tōki hō (Immoveables Registration Act) (Law No. 24 of 1899), s. 14; Shakuchi hö (Land Lease Act) (Law No. 49 of 1921); Shakka hō (Building Lease Act) (Law No. SO of 1921).

22. Fudōsan tōki hō (Immoveables Registration Act) (Law No. 24 of 1899), s. 7(2).

23. Fudōsan tōki hō (Immoveables Registration Act) (Law No. 24 of 1899). If the provisional registration of ownership is being used as a security device, however, the lender/purchaser may be required to account to the debtor and his creditors. See infra n. 28 and accompanying text.

24. Fudōsan tōki hō (Immoveables Registration Act) (Law No. 24 of 1899), s. 2.

25. Mimpō (Civil Code) (Law No. 89 of 1896; Law No. 9 of 1898), ss. 369–398.22. The term ‘hypothec’ is used here because it is the term commonly used to denote real property security interests in continental legal systems, and because the existing literature in English on Japanese security interests in immoveables uses this term. But the term itself carries no special Although in Japan, as noted in the text, the sole remedy far a hypothec holder is a judicial auction, in Quebec the holder of an interest that goes by the same name may choose between auction sale and direct foreclosure, much as under a common law mortgage.

26. See Haley, J.O., “The Preliminary Contract for Substitute Performance: A Reflection of Japanese Judicial Approach’, 7 Law in Japan (1974) pp. 133, 139–142 (traces the development of the provisional registration security device)Google Scholar; Saikō saibansho hanketsu (Decision of the Supreme Court), October 23, 1974, Minji hanreishū vol. 28, no. 7, p. 1473; also reported in Kin' yū hōmu jijō (No. 734) (1974) p. 16 (requires accounting to die debtor for excessive value); Kari tōki tempo keiyaku ni kansuru hōritsu (Act Concerning Contracts for a Contingent Registration Security Interest) (Law No. 78 of 1978) (creates statutory security interest that covers judicially recognized de facto security interest described by Haley).

27. This conclusion is not based on direct data, but on the very real concern in the practice literature over the efficiency of the auction process. As for the differing remedies available to enforce each of these interests, a provisional registration security interest for a fixed sum may be enforced either by direct execution, or by auction sale; a provisional registration security interest for a floating sum may be enforced only through direct execution; and the hypothec can only be enforced through auction sale.

28. This interest arises from practice alone; insofar as a transfer of title is treated as a security interest, the rules are to be found only in judicial decisions.

29. Saikō saibansho hanketsu (Decision of the Supreme Court), February 12, 1987, Minji hanreishū vol. 41, n. 1, p. 67.

30. Mimpō (Civil Code) (Law No. 89 of 1896; Law No. 9 of 1898), ss. 395 and 602.

31. Saikō saibansho hanketsu (Decision of the Supreme Court), July 17,1981, Minji hanreishū, vol. 35, n. 5, p. 950.

32. Uchida, T., Teitōken to riyōken (Hypothecs and rights of use) (1983) at pp. 337–338Google Scholar.

33. Like the split between land and buildings, Section 395 is something of an oddity. Most property regimes will allow the holder of a security interest against real property to set up the transaction so that he may later avoid subsequent leases. See, e.g., the UK Law of Property Act s. 99(13).

34. Writing in one of the major journals on commercial practice, a prosecutor within the Ministry of Justice writes: ‘When confronted by the insolvency of a customer, or by a central clearing house suspension of his check-clearing services, it is natural for the person concerned to think first of ways to recoup what is owed to him. Particularly when one has inadequate security, or indeed when one has no security at all, one is tempted to dash to the customer's premises as quickly as possible, and carry away goods and anything else of value mat falls to hand. But is this permissible? … Needless to say, this is not permissible if goods belonging to the customer are taken away without bis consent; it constitutes ordinary theft (Penal Code s. 235). … But what if you carry goods away with the debtor's consent? It does appear that this often happens in practice, but in many cases mis would probably be treated under the law as substitute performance (Civil Code s. 482)’ (emphasis added). M. Tsunoda, ‘Tōsan, hasan o megutte mondai to naru hanzai ni wa dono yō na mono ga aru ka, kigyō hōmu to keiji hō (10)’ (What sort of crimes can arise in the context of insolvency and bankruptcy?), Shōji hōmu (No. 1193) (September 15,1989) p. 46. The author goes onto indicate that civil remedies or criminal sanctions might be imposed depending upon the circumstances, but the italicized language suggests mat these deterrents are not particularly effective. The potential opportunistic gains from fraudulent transfers appears to have given rise to entrepreneurial seiri-ya, or enterprise clean-up racketeers.

35. However, some wonder whether fraudulent conveyances have any-significant effect at all on the cost of credit See Carlson, D., ‘Is Fraudulent Conveyance Law Efficient?’, 9 Cardozo LR (1987) pp. 643–683Google Scholar.

36. The discussion in this section is based on the work of Takashi Uchida, most importantly Uchida, op. cit n. 32, a comprehensive study of the conflict between rights of occupation and rights of hypothec holders to which Section 395 gives rise.

37. Uchida, T., ‘Teitōken to tanki chintaishakuken’ (Hypothecs and short-term leases), in Hoshino, E., ed, Mimpō kōza, Vol. 3 (1984) p. 180Google Scholar.

38. Uchida, ibid, at p. 183.

39. Uchida, ibid, at p. 182; Uchida, , op. cit. n. 32, at pp. 28–55Google Scholar.

40. Uchida, , loc. cit. n. 37, at p. 180Google Scholar.

41. Mimpō (Civil Code) (Law No. 89 of 1896; Law No. 9 of 1898), s. 395.

42. Minji shikkō hō (Civil Execution Act) (Law No. 4 of 1979).

43. Before the revision, provisions were contained in Chapter 6 of the Code of Civil Procedure (Minji soshō hō (Law No. 29 of 1890)), and in the Auctions Law (Keibai hō (Law No. 15 of 1898)).

44. Haley, loc. cit n. 26.

45. Opportunistic damage to the auction process is not an exclusively Japanese phenomenon. See, e.g., Findlay v. McAllister, 113 U.S. 104, 105–06 (1885) (‘[T]he defendants, with about two thousand other evil-disposed persons … in order to prevent the sale of the property … assembled in vast numbers … and, by their combined influence, threats and hostile demonstrations, did so overawe and intimidate the persons who had gone to the place of the sale … as to prevent them from bidding …’).

46. Keibai hō (Auctions Act) (Law No. 15 of 1898), s. 34 (allows use of sealed bid method, under provisions in die Civil Procedure Code); Minji soshō hō (Civil Procedure Code) (Law No. 29 of 1890), s. 703 (requires in-person delivery of sealed bids on the day fixed for the auction).

47. This section provides as follows:

‘Section 65 [Control of the place of sale]

Execution Officers, as against the following persons, may limit their entry into the place of sale, eject them from that place, or bar them from making bids upon the property.

1. Persons who interfere with another person's bid, persons who cooperate to interfere with the proper conduct of the sale for the purpose of lowering the price of sale improperly (futō ni), or persons who induce such acts;

2. Persons who have been refused participation in another judicial sale by decision based upon the preceding subsection, far a period of two years from the confirmation of that decision;

3. Persons who have been convicted under die provisions of the Criminal Code sections 95 through 96.3, 197 through 197.4, or 198, in connection with a sale pursuant to civil execution proceedings, for a period of two years from die date on which judgement is confirmed.’

48. Heller, J., Catch-22 (1961) p. 65 (statement of Milo Minderbinder)Google Scholar.

49. Hara, T. et al. ., ‘Tōkyō chihō saibansho no fudōsan keibai ni okeru baikyaku kagaku no keisei ni tsuite’ (Concerning die structure of sale prices in the auction of immoveables at the Tokyo District Court), Hanreijihō, No. 1254 (11 1, 1988) p. 3 at 3Google Scholar.

50. sōkyoku, Seikō saibansho jimu (General Secretariat of the Supreme Court), Shihō tōkei nempo (Judicial Statistics Annual) (1986) pp. 270, 284Google Scholar (hereinafter cited as ‘Shihō tōkei nempo’).

51. ‘Minji sUkkō hō seminā’ (Seminar on die Civil Execution Act) (No. 7), Jurisuto (No. 723) (10 1, 1980) pp. 122, 126Google Scholar (statement of Professor Takeshita).

52. Fudōsan tōki hō (Immoveables Registration Act) (Law No. 24 of 1899), s. 21.

53. Fudōsan tōki hō, supra n. 19, at p. 829.

54. Mimpō (Civil Code) (Law No. 89 of 1896; Law No. 9 of 1898), s. 177.

55. Literally, these provisions state that the lease interest will not lose its enforceability against third parties (taikōryoku) on grounds of non-registration.

56. Tatemono hogo hō (Building Protection Act) (Law No. 40 of 1909), s. 1.

57. Shakka hō (Building Lease Act) (Law No. 50 of 1921), s. 1; Mimpō (Civil Code) (Law No. 89 of 1896; Law No. 9 of 1898), s. 566(1) and (3).

58. Minji shikkō hō (Civil Execution Act) (Law No. 4 of 1979), s. 62.

59. The discussion in the main text turns to the legal problems generated by Section 395, but opportunists have surely seized on less sophisticated devices as well. A news item reports the arrest of a judge of the Matsue Summary Court in Tottari Prefecture for inducing an execution officer to pass a memorandum of submitted bids to a high school friend of the judge just ten minutes before the deadline for sealed bids. Although this case does involve an assault on the integrity of the bidding process, the buyer's opportunistic motives were apparently supplemented by a desire to prevent his competitors from acquiring the properties concerned. ‘Kan'i hanji ga keibai fusei; Matsue; chijin ni nyūsatsu kagaku nagasu’ (Auction cheating by a judge of the Summary Court; in Matsue; bid prices disclosed to an acquaintance), Asahi Shimbun (March 6, 1989) p. 18. The facts themselves demonstrate the integrity of the process, however; sealed bids are carefully protected, and opportunities for sneaking a look at bids are limited. See Hara, et al. , loc. cit. n. 49, at p. 6Google Scholar.

60. Far a concise description of some of the patterns which opportunistic arrangements take, see Watahiki, M., ‘“Keibaiya”, “sen'yūya”, taiji wa seikō shita ka’ (Have measures against the ‘keibaiya’ and ‘sen'yūya’ been successful?), Jurisuto (No. 927) (1989) pp. 64, 64–65Google Scholar.

61. It is not the only weakness. One commentator lists the following nine features which discourage non-professionals from bidding in judicial auction sales:

(1) lack of assurance that the auction purchaser can be put into physical possession of the property;

(2) risk arising from the greater complexity of auction purchase transactions; (3) general lack of opportunity for an on-site inspection of property before the auction sale; (4) the need for a relatively rapid decision on whether to bid, and if so how much, on an expensive piece of property; (5) the requirement that the auction bidder submit 20% of the minimum bid amount fixed by the court's appraiser with the bid, and the balance in cash if bis bid is successful; (6) the sense that one is benefitting from another's misfortune, and against that person's wishes; (7) more limited advertising of the properties on offer man in ordinary sales of immoveables, in part out of concern over the current owner's privacy; (8) risks arising from the above-stated factors to those who are not, unlike most auction participants, well versed in auction procedures and the technical aspects of the immoveables business; (9) the fact that auction properties most often come onto the market at a time of economic ‘downturn, when buyers must extend themselves against market trends. Hara, et al. , loc. cit. n. 49, at p. 4Google Scholar. Of these nine factors, the first is probably the most important— and bears directly upon opportunistic maneuverings under Section 395.

62. The argument that long-term leases should be protected for the relevant period set form in Section 602 has not met with success in the courts. See Saikō saibansho hanketsu (Decision of the Supreme Court), August 17, 1963, Minji hanreishū vol. 17, no. 8, p. 955.

63. N. Ichinomiya, ‘Teitōken no tanki chintaishaku no kaijō seikyū to akewatashi seikyū (I)’ (Petition by a hypothec to void a short-term lease, and the petition for eviction, Part 1), Hanrei taimuzu (No. 691) (05 15, 1989) p. 20 at 20Google Scholar; Saikō saibansho hanketsu (Decision of the Supreme Court), June 23, 1971, Minji hanreishū vol. 15, no. 6, 1680Google Scholar; Saikō saibansho hanketsu (Decision of the Supreme Court), September 17, 1973, Minji hanreishū vol. 17, no. 8, 955.

64. Shakuchi hō (Land Lease Act) (Law No. 49 of 1921); Shakka hō (Building Lease Act) (Law No. 50 of 1921).

65. Shakuchi hō (Land Lease Act) (Law No. 49 of 1921), s. 4; Shakka hō (Building Lease Act) (Law No. 50 of 1921), s. 1.2.

66. Recent legislation, to become effective in the summer of 1992, will make it possible for parties to contract out of automatic renewal, and will lower the standard of justification required in the event of automatic renewal and institute other reforms. This legislation is not retroactive in effect, however, and most of the provisions referred to in the discussion in the main text will continue to have effect where the parties do not specifically contract out of them. See ‘Kigen tsuki shakuchi kanō’ (Fixed-term land leases possible), Nihon keizai shimbun (October 1, 1991).

67. See, e.g., Dai shin' in hanketsu (Decision of the Supreme Court of Cassation), September 18, 1944, Hōritsu shimbun, no. 717, p. 14.

68. Saikō saibansho hanketsu (Decisionof the Supreme Court), August27, 1963, Minji hanreishū vol. 17, no. 6, p. 871; Saikō saibansho hanketsu (Decision of the Supreme Court), June 19, 1964, Minji hanreishū vol. 18, no. 5, p. 795.

69. This distinction between hard and other buildings will be eliminated by the new legislation on leases. See supra, n. 66.

70. Shakuchi hō (Land Lease Act) (Law No. 49 of 1921), s. 2(1).

71. Shakuchi hō (Land Lease Act) (Law No. 49 of 1921), s. 2(2).

72. Saikō saibansho hanketsu (Decision of the Supreme Court), November 26, 1969, Minji hanreishū vol. 23, no. 11, p. 2221.

73. Saikō saibansho hanketsu (Decision of the Supreme Court), June 16, 1970, Hanrei jihō (No. 600), at 84.

74. Ichinomiya, , loc, cit. n. 63, at p. 21Google Scholar, citing Daishin' in hanketsu (Decision of the Supreme Court of Cassation), January 31, 1927, Minji hanreishū vol. 6, p. 6.

73. Daishin' in hanketsu (Decision of the Supreme Court of Cassation), July 10, 1937, Minji hanreishu vol. 16, p. 1209.

76. Saikō saibansho hanketsu (Decision of the Supreme Court), September 27, 1968, Minji hanreishū vol. 22, no. 9, p. 207.

77. See Ramseyer, J.M., ‘Lawyers, Foreign Lawyers, and Lawyer-Substitutes: The Market for Regulation in Japan’, 27 Harvard HJ (1986) pp. 502, 521Google Scholar.

78. Note, however, that it currently requires roughly two years to carry an eviction proceeding to its conclusion. Building leases therefore receive a form of de facto protection for a two-year period even without resort to Section 395.

79. Note that recently adopted reforms to the lease laws are designed to attack this very problem. Supra n. 66.

80. Mimpō (Civil Code) (Law No. 89 of 1896; Law No. 9 of 1898), s. 395; Minji shikkō hō (Civil Execution Act) (Law No. 4 of 1979), s. 83. For a more thorough discussion of the procedural issues surrounding opportunistic leases, see Ichinomiya, loc. cit n. 63, and Ichinomiya, N., ‘Teitōken no tanki chintaishaku no kaijō seikyū toakewatashi seikyū (II)’ (Petition by a hypothec to void a shortterm lease, and the petition for eviction. Part 2), Hanrei taimuzu (No. 693) (05 15, 1989)Google Scholar.

81. See, e.g., Takeshita, M., ‘Tanki chintaishaku no toriatsukai o megutte’ (Concerning die treatment of short-term leases), Jurisuto (No. 875) (01 1–15, 1987), pp. 119, 122Google Scholar citing Daishin'in hanketsu (Decision of the Supreme Court of Cassation), June 15, 1936, Minji hanreishū 15–1503; but see Daishin'in hanketsu (Decision of the Supreme Court of Cassation), April 25, 1935, Minji hanreishū voL 14, p. 693.

82. See, e.g., Takeshita, , loc. cit. n. 81, at p. 120Google Scholar; Tōkyō chihō saibansho hanketsu (Decision of the Tokyo District Court), October 25, 1976, Kin' yū hōmu jijō (No. 810) 29; Tōkyō chihō saibansho hanketsu (Decision of the Tokyo District Court), June 19, 1973, Kakyū saibansho minji hanreishū vol. 24, p. 424.

83. Watahiki, loc, cit. n. 60; Takatota, loc, cit. n. 81; Ikuma, N., ‘Shakuchi, shakka hō kaisei yōkō shian to tanki chintaishaku no kaizen’ (The reform prpposal on the Land Lease and Building Lease Acts and progress on short-term leases), Jurisuto (No. 939) (08 1–15, 1989) pp. 142, 143Google Scholar.

84. See supra, text accompanying n. 67 and following.

85. I.e., by concealing the existence of the lease. See supra nn. 33–34 and accompanying text.

86. So much so mat inordinately meticulous proof of a lease interest has become one of the signals of an opportunistic lease. Watahiki, loc. cit n. 60.

87. Watahiki, loc. cit. n. 60.

88. If the auction bidder holds the lease himself, of course, it is cost-free to him.

89. That is, setting aside the question of genuine but fraudulent conveyances; if the lease papers supporting the opportunistic lessee's claim are themselves fraudulent, his claim will impair other claims against the debtor no matter who ends up satisfying it.

90. Compensation is sometimes payable under the National Compensation Act (Kokka baishō hō (Law No. 125 of 1947)).

91. 37 Halsbury's Laws (4th edn.) pp. 222–223, para. 293; Hultquist v. Universal Pattern & Precision Engineering Co., Ltd. [1960] 2 All ER 266Google Scholar, CA. In Japan, introduction of a full cost indemnity rule has at least been considered recently, in the course of discussions over adjustments to the system for admitting persons into the legal professions. ‘Hōsō kihon mondai koodankai ni okeru iken’ (An expression of opinion concerning the discussion group on fundamental issues of the legal professions), reprinted in Jurisuto (No. 907) (May 1,1988) pp. 34, 35.

92. See, e.g., procedural summary given in Gilliland v. Fenn, 90 Ala. 230, 8 So. 14 (1890).

93. See, e.g., Dalton v. Meister, 71 Wis 2d 504, 239 N.W.2d 9 (1976) (action for recovery of damages against transferees on grounds of civil conspiracy allowed).

94. See 11 USCA 727(a)(2)(A).

95. A further often-mentioned device not discussed in the text is die ‘minimum sale price’ appraisal mechanism. This price is published for auction purchasers, and it is thought to be important for supporting auction prices. There is no fixed standard for fixing mis number, although it is said to run generally at about 70% of the market value of the title concerned. Of course, if there is aggressive bidding for properties this device is not necessary, and if no bids exceed the floor price, the floor price has to be changed. Its impact on final sale price should therefore be weak. But see Hara et al., loc. cit n. 49.

96. See supra text accompanying note 90.

97. Minji shikkō hō (Civil Execution Act) (Law No. 4 of 1979), s. 57.

98. Minji shikkō hō (Civil Execution Act) (Law No. 4 of 1979), s. 83.

99. These efforts are discussed in the next section of this article.

100. This position has been affirmed by the Tokyo High Court. Tōkyō kōtō saibansho hanketsu (Decision of die Tokyo High Court), April 25, 1984, reported in Hanrei taimuzu, No. 530 (August 1, 1984) p. 156.

101. ‘Minji shikkō hō seminā’ (Seminar on the Civil Execution Act), loc.cit. n. 51, at p. 128.

102. This is said to be the current state of affairs by Warabiki, loc. cit. n. 60.

103. ‘Minji shikkō hō seminā’ (Seminar on the Civil Execution Act), loc. cit. n. 51, at p. 128 (statement of Minami).

104. ‘Baikyaku jōken no kakuho, kōshi tō ni kansuru mondai’ (Problems concerning securing and exercising conditions of sale), Jurisuto (No. 915) (August 25, 1988) pp. 14, 17 (statement of Inoue). Mr. Inoue also states that excessive deposits can be labelled as likely to be set aside, but mat the specific extent to which they might be set aside cannot not be specified.

105. Minji shikkō hō (Civil Execution Act) (Law No. 4 of 1979), s. 83.

106. Watahiki, loc. cit. n. 60.

107. Ichinonriya, , loc. cit. n. 80, at p. 16Google Scholar. The court may, however, note the fact of continuing occupancy of die premises by a failed lessee in the memorandum of title details.

108. If it is likely to survive, one might as well get the clearing process out of the way in advance.

109. Japanese law does not allow direct foreclosure of the hypothec interest; a public auction is the means of exercising the interest.

110. Ikuma, loc. cit. n. 83; Takeshita, , loc. cit n. 81, at p. 120Google Scholar.

111. Literally ‘joint’ or ‘companion’ leases.

112. Saikō saibansho hanketsu (Decision of the Supreme Court), February 17, 1977, Minji hanreishū vol. 31, n. 1, p. 67.

113. Hata, M., ‘Teitōken to heiyō sareta chintaishakuken no kari tōki no kōryoku’ (The effect of the contingent registration of a short-term lease used in parallel with a hypothec), Kin' yū hōmu jijō (No. 1239) (12 5, 1989) pp 4 at 5Google Scholar, citing Saikō saibansho hanketsu (Decision of the Supreme Court), June 5, 1989, Kin'yū hōmu jijō (No. 1236), p. 11.

114. First, all subordinate leases might be extinguished by the auction process together with the protective lease. Second, the secured lender might petition the court to void subordinate leases after execution but before auction proceedings, thus clearing the title of the property. Third, it is suggested mat the protective lease should have no effect whatever, since mechanisms for combatting opportunistic leases already exist. Takeshita, loc. cit. n. 81, at pp. 120–121Google Scholar.

115. See.e.g., Kataoka, Y., ‘Teitōken no hozen to tanki chintaishakuken taisaku’. Kinyū hōmu jijō (No. 1242) (01 5, 1990)Google Scholar.

116. Ikuma, , loc. cit. n. 83, at p. 143Google Scholar.

117. Ikuma, N., ‘Tanki chintaishaku no kaijo to teitōkensha no akewatashi seikyū’ (Voidance of short-term leases and actions for eviction by hypothec holders), Hōritsu jihō, vol. 63, No. 9 (08 1991) p. 44Google Scholar, citing Saikō saibansho hanketsu (Decision of the Supreme Court), Hanre ijihō No. 1379, p. 62.

118. ‘Shakuchi hō, shakka hō kaisei yōkōan’ (Proposalfor reform of the Land Lease Act and the Building Lease Act), reprinted in Jurisuto (No. 939) (August 1–15, 1989) p. 26 at p. 32.

119. For a critique by a Japanese legal scholar, see Drama, , loc. cit. n. 83, at pp. 145–46Google Scholar.

120. See Ramseyer, , loc. cit n. 77, p. 521Google Scholar; see also Miyazawa, S., ‘Taking Kawashima Seriously: A Review of Japanese Research on Japanese Legal Consciousness and Disputing Behavior’, 21 Law & Society Rev. (1987) pp. 219, 234, 240CrossRefGoogle Scholar (citing field research conducted in Japan by Professor Kahei Rokumoto which suggests that there is strong demand for the services of attorneys in housing disputes).

121. Haley, loc. cit. n. 12.

122. This does not take long, once the factual questions in the case have been dealt with. In 1986, 93% of all suits for provisional relief against occupancy or intrusion upon immoveables were resolved within six months. Shihō tōkei nempo, op. cit. n. 50, table 145 at p. 248.