Inasmuch as the status of foreigners under Japanese law is a subject of growing practical importance, we make extracts from an address delivered by Dr. Masujima before the New York State Bar Association in January, 1903:—
“The cases in which foreigners are restricted in the enjoyment of private rights, are the ownership of land or Japanese ships, the right to work mines, to own shares in the Bank of Japan or the Yokohama Specie Bank, to be members or brokers of exchanges, to engage in emigration business, or to receive bounties for navigation or ship building. Any company must, in order to own Japanese ships, have its principal office in Japan, and all members in case of a Gōmei Kaisha, all unlimited liability members in case of either a Gōshi Kaisha or Kabushiki Gōshi Kaisha, and all directors in case of a limited company, must be Japanese subjects. Otherwise foreigners are as free as the Japanese to own shares in any Japanese commercial companies organized by themselves alone, or in combination with the Japanese, or to engage in any manufacture or other commercial operations.
“Foreigners may hold a long lease of land to plant trees or erect permanent structures, which may be arranged for an indefinite term almost perpetual, such as one thousand years, or as long as may be agreed upon. Such a holding is called superficies, and it is very much like a long English lease, the only difference being that trees or buildings do not, at the end of the term, revert to the landlord, his right being only that of pre-emption at current valuation. The most advisable way for the enjoyment of the actual and permanent holding of land is for a foreigner to buy land himself through a Japanese, as bare trustee, and to secure its superficies for the period of as long a term as may be desirable for his purposes.
“Although no foreigners may work mines individually, they may be taken on mortgage, and a company registered as a Japanese organization is entitled to engage in mining; the theory is that foreigners as members merge themselves in the entity of a Japanese corporation, although it may be composed of foreigners exclusively.
“No railway or tramway business is allowed to be carried on unless by a limited company and a concession for such purpose has to be secured from the proper authorities. No such railway can be pledged, but it may be hypothecated. Japanese pledge corresponds to English mortgage, differing therefrom in that immediate transfer of possession and holding the pledged property absolutely is essential. Hypothecation does not carry possession nor the right of entry. This condition of Japanese railway law has not satisfied capitalists as not affording sufficient security to induce investment by them. There has been some attempt to have this law altered, but it has not yet been accomplished.
“Banking, insurance, shipping, and all other kinds of commercial business may be carried on in Japan by foreign companies by observing the treaties and certain regulations, such as the registration of their branch offices, their representatives or other matters prescribed by law.
“There are two kinds of civil corporations, the one consisting of persons associated together, and the other an estate of aggregate property somewhat like a trust in English law, formed or established for the purpose of religious worship, teaching, art, charity, education, or any other object of public benefit, not aiming at the making of a profit. Such a corporation can come in existence only with the permission of the competent authorities, while Japanese commercial corporations may be formed without it.
“No foreign association of persons or trust property is accorded the same rights and privileges as are enjoyed by similar Japanese corporations; such a foreign corporation has no standing whatsoever in the Japanese courts, and the only way in which it could obtain protection would be to appear in the individual names of its members, just as used once to be the case in partnership actions. Purely technical evidence must be procured and filed before any legal proceeding can be initiated, and the best interests of the corporation might easily be jeopardized. Some foreign religious societies have sought to get themselves incorporated as Japanese corporations, but failed. Japan has no State religion, and she is absolutely impartial in religious matters. Any religious body so applying must be and show itself to be a purely Japanese institution, free from all control of any sort from its corresponding religious bodies in foreign countries. Any legal connection whatever between the home body and Japanese organization is a bar to such purpose.[118]
STATESMEN OF NEW JAPAN
ŌKUBO, SAIGŌ, KIDO, AND PRINCE IWAKURA