Page:Civil code of Japan compared with French (1902-05-01).pdf/11

364 founded on the legal right of possession independently of the fact of possession. Upon the question whether the two actions should be concurrently allowed, the legislative precedents differ and the French and Japanese enactments on the point are diameticallydiametrically [sic] opposed to each other. Article 202 of the Japanese Code provides that possessory and petitory actions do not preclude each other and that a possessory action cannot be decided upon grounds giving rise to a petitory action. The French law bearing on the subject is found in Articles 25, 26 and 27 of the Code of Civil Procedure. It is there provided that possessory and petitory actions can not be brought together, that the plaintiff in a petitory action can not be plaintiff in a possessory action, and that the defendant in a possessory action can not bring a petitory suit until after the termination of the possessory action. According to the Japanese Code, possessory and petitory actions are considered quite independent of each other. An action for the recovery of possession may be based on the mere ground of possession or on grounds other than the fact of possession. Thus the action may be the same while the grounds are different. Even a thief may, under circumstances, claim the right of possession. Consequently the right of possession may be considered, and ought to be protected, independently of the right of ownership, or of any lesser right of a thing.

— According to Article 544 of the French Code, ownership is defined to be the right to enjoy and dispose of property, in the most absolute manner, provided the laws and regulations are not violated thereby. The sufficiency of this definition of ownership is questionable, for ownership may exist without the right of enjoyment. The Japanese Code, without attempting to define ownership, simply states what an owner can do. The chapter on this subject is divided into three sections, viz.: Limits of ownership; Acquisition of ownership, and Joint ownership. The first section opens with the proposition that an owner has, within the limits prescribed by law, the right freely to use, profit by, and deal with the thing he owns. It next declares that the right of ownership of land subject to the restrictions imposed by law, extends to what is above and below the rule: “” This section also deals with the question of the right to use the land of a neighboring owner, e.g., Article 210 declares that when a piece of land is surrounded by another piece of land so as to prevent access to the public highway, the owner of the former land is entitled to an outlet over the surrounding land, and Article 214 enacts that the owner of land must