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Ius Comparatum – Global Studies
in Comparative Law

Series Editors:
Jürgen Basedow Max Planck Institute for Comparative and International Private Law,
Germany
George Bermann Columbia University School of Law, USA

Editorial Board
Xavier Blanc-Jouvan Université Panthéon-Sorbonne, France
Bénédicte Fauvarque-Cosson Université Panthéon-Assas, France
Toshiyuki Kono Kyushu University, Japan
Marek Safjan Cour de Justice de l’Union européenne, Luxembourg
Jorge Sánchez Cordero Mexican Center of Uniform Law, Mexico

For further volumes:

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Wen-Yeu Wang
Editor

Codification in International
Perspective
Selected Papers from the 2nd IACL Thematic
Conference

2123
Editor
Wen-Yeu Wang
College of Law
National Taiwan University
Taipei
Taiwan

ISSN 2214-6881 ISSN 2214-689X (electronic)

ISBN 978-3-319-03454-6 ISBN 978-3-319-03455-3 (eBook)
DOI 10.1007/978-3-319-03455-3
Springer Cham Heidelberg New York Dordrecht London

Library of Congress Control Number: 2014930430

© Springer International Publishing Switzerland 2014

This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the
material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation,
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with reviews or scholarly analysis or material supplied specifically for the purpose of being entered and
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Introduction to the Codification Books
(two volumes)

Codification is the process of collecting and restating the law of a jurisdiction into a
legal code. This process has often involved international dimensions and, as such, has
long drawn the attention of comparative jurists. A historic example is the East Asian
reception of Western laws, in particular the German Civil Code, in the 19th century.
More recently, globalization has increased the relevance of this topic. Examples
include the proposed Common European Sales Law and the codification efforts
in the legal transition of former Soviet States. Consequently, comparative jurists
are now challenged to apply the study of codification on an unprecedented scale.
This published work, with its combination of comprehensiveness and depth, is a
meaningful contribution to this endeavor.
As a matter of background, this work grew out of the IACL Thematic Confer-
ence on the subject of codification held at the National Taiwan University in May
2012. Scholars worldwide, including scholars from the common law and civil law
systems, gathered in Taiwan to explore this important topic. Considering the theme
of “codification” and its subtheme on East Asia, Taiwan offers a befitting setting for
this historic event, for Taiwanese law represents a rare amalgamation of Continental
civil law, common law, Confucianism and multicultural legacy.
This work is divided into two volumes. The first volume first provides an overview
and explores codification from various theoretical perspectives and their attendant
profound implications. It then addresses soft codification efforts, such as the Unidroit
Principles of Commercial Contracts and the supranational codification of private law
in Europe and its significance for third states.
Codification reform occurs as the ideology and rationales of the law evolve. A
dramatic example is the codification of private law in former Soviet states in post-
Soviet times, to which this volume next turns. In addition, different fields of law lend
themselves differently to codification. This volume then focuses on different fields of
law, including administrative procedure, criminal law and human rights law. These
field-based studies are heavily informed by national perspectives and experiences, as
codification differs in methods and results from across countries and must consider
country-specific characteristics.
The second volume is devoted to East Asian Law. It first puts the codification
in East Asia in context by exploring the defining characteristics of the East Asian

v
vi Introduction to the Codification Books (two volumes)

legal family and by examining the codification and legal transplant of Western laws
from an international perspective. It then discusses the codification experience from
four fields of law, namely commercial law, administrative law, civil law and private
international law by drawing upon national perspectives. The rich discourse and
experience in East Asia serve to enrich the study of codification.
On behalf of the Taiwan Committee of the Academy, I would like to thank Pres-
ident Professor George Bermann and Secretary-General Professor Jürgen Basedow
for their invaluable support and guidance along the way. I also appreciate the un-
wavering support of my colleagues at National Taiwan University College of Law.
Lastly, I would like to thank our editors at the Springer, particularly Dr. Neil Olivier,
for their professional editorial efforts.

Wen-Yeu Wang
College of Law, National Taiwan University
Taipei, Taiwan
Titular Member and Taiwan Chair
International Academy of Comparative Law
Preface

Jurists around the world know that the value of the law lies not only in its content, but
also in its form. And no aspect of legal formalism has interested comparatists as much
as the extent of legislative codification or non-codification across legal systems. It
is well known that civil law systems have a tendency to favor the codification of
law—or at least the codification of certain bodies of law—whereas codification, as
it is typically understood, has not found special favor in the common law.
But the questions surrounding codification are far more complex than any simple
dichotomy between civil law and common law systems can possibly capture. This is
due in part to the complexity of codification itself. Thus, codification can itself take
different forms and is, in any event, a matter of degree, since in no system is the law
fully codified. Conversely, no modern system—no matter how unreceptive it may be
to codification as a legislative method—is without codification altogether.
Even in a legal system that has long enjoyed codification, codification reform
occurs, and not only because the content of the law has evolved. Codification cannot
be, or should not be, static, so that even largely codified systems need to address the
challenge of maintaining over time the coherence and systematization that codifi-
cation promises, even as the law itself evolves. Thus any study of codification also
entails processes of de-codification and recodification as well. We also know that,
even limiting ourselves to largely codified systems, codification differs importantly
in methods and results from country to country. Not least, different fields of law lend
themselves differently to codification. This last observation caused the architects of
this publication to build it very largely around fields of law, so that the distinctive
experiences in codification across fields could be well understood and appreciated.
In short, the degree and manner of legal codification is not only an important
aspect of law, but an exceedingly complex one. As a subject, it accordingly warrants
an examination that is both in depth and wide-ranging. Up to now, no such enterprise
had ever been undertaken.
The present two-volume work fills that gap. It grew out of a large international
conference on the subject of codification held at the National Taiwan University
in May 2012. The occasion was the second quadrennial thematic congress of the
International Academy of Comparative Law. Historically, the Academy has held
world congresses embracing a very wide range of topics—as many as thirty in any

vii
viii Preface

given congress. Several years ago, the Academy became highly conscious of the
fact that there are limits in focus and depth to congresses of that magnitude. While
those congresses have the important merit of attracting and assembling comparatists
across a very wide range of interest, and will therefore continue to be held every
four years (the next in Vienna in 2014), the Academy leadership thought it time to
introduce an additional species of congress that would bear on a single theme, albeit
a broadly conceived one. The first such thematic congress of the Academy was held
in Mexico City in 2008 on the theme of unification of law. Codification turned out
to be a similarly compelling subject for the next thematic congress to follow, which
would be in Taiwan.
This publication itself is testimony to the importance and complexity of the sub-
ject of codification. Wisely, this volume is not entirely organized by jurisdiction. It
begins with a general theoretical and historical view of codification, followed by a
series of other “horizontal” inquiries. But a large portion of the work is organized
around fields, and indeed an impressive range of them: from administrative proce-
dure to sales law, from criminal law to commercial law, from human rights to private
law generally. On the other hand, these field-based inquiries build upon specific na-
tional legal experiences, as evidenced by the large number of national reports out of
which the synthetic general reports on each of the fields covered have grown. Only
a methodology of that sort can achieve the combination of specificity and breadth of
vision that the present work exemplifies.
It also seemed highly appropriate for the congress and the publication resulting
from it to focus on Asia—not only because of the location of this congress in Taiwan,
but also because codification is a subject of intense current interest in that part of the
world. That perspective defined an important segment of the Taiwan congress and
defines an important segment of the present publication, namely the second volume
in this two-volume work. While focusing on Asia, this volume too is organized both
around field and around country.
This study of codification, as well as de-codification and recodification, is
therefore unprecedented in its richness—a richness that derives from its skillful com-
bination of detail and breadth. The comparative law academy generally is indebted
to all who contributed to this study and, above all, to Professor Wen Yeu Wang of
National Taiwan University, who served as its principal inspiration and architect.

George A. Bermann
Columbia Law School, New York, N.Y.
President, International Academy of Comparative Law
Contents

Part I Codification: From a Broader Perspective

1 Codification, Decodification and Recodification: History, Politics

and Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Whitmore Gray

2 Codification: The Civilian Experience Reconsidered on the Eve

of a Common European Sales Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Reinhard Zimmermann

Part II Soft Codification of Private Law

3 Supranational Codification of Private Law in Europe and Its

Significance for Third States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Jürgen Basedow

4 The Soft Codification of the UNIDROIT Principles

of International Commercial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Chang-fa Lo

5 Restatements and Non-State Codifications of Private Law . . . . . . . . . . 75

Deborah A. DeMott

Part III Codification of Private Law in Post-Soviet Times

6 Codification of Private Law in Post-Soviet States of the CIS

and Georgia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Lado Chanturia

7 Private Law Codification in The Republic of Croatia . . . . . . . . . . . . . . 107

Tatjana Josipović

ix
x Contents

8 A Civil Code Outside of Reality—The Polish Codification

of the Year 1964, Its Origin, Development and Future . . . . . . . . . . . . . . 125
Fryderyk Zoll

Part IV Codification of Administrative Procedure

9 Codification of the Law of Administrative Procedure General

Perspectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Jean-Bernard Auby

Part V Criminal Law Codification Beyond the Nation State

10 The Model Penal Code and the Dilemma of Criminal Law

Codification in the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
Stephen C. Thaman

Part VI Criminal Codification of Human Rights

11 The Codification of Human Rights at National and International

Levels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Giuseppe Franco Ferrari

12 International Academy of Comparative Law (IACL) . . . . . . . . . . . . . . . 239

Hannu Kiuru

13 The Codification of Human Rights at the National

and International Levels in Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
Uwe Kischel

14 Codification of Human Rights at National and International

Levels General Perspectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
Tomer Broude and Yonatan Weisbrod

15 A Possibility of the Multi-layered Human Rights Implementation

System Underpinned by the Simultaneous Codification
of the Constitution of Japan and the International Human
Rights Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
Akiko EJIMA

16 Codification and Implementation of Human Rights

in the Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
Ida Lintel and Marthe Lot Vermeulen
Contents xi

17 Portuguese National Report on the National and International

Codification of Human Rights Presented to the Thematic Congress
of the International Academy of Comparative Law (Taiwan, 2012) . . . 333
Luísa Neto

18 Codification in the Field of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . 353

Irina Moroianu Zlătescu

19 The United States and Human Rights: Paradoxes and Challenges . . . 363
Leila Nadya Sadat
Contributors

Jean-Bernard Auby Sciences Po Governance and Public Law Centre, Paris, France
Jürgen Basedow Max Planck Institute for Comparative and International Private
Law, University of Hamburg, Hamburg, Germany
Tomer Broude Faculty of Law, Hebrew University of Jerusalem, Jerusalem, Israel
Lado Chanturia Tbilisi State University (Javakhishvili Tbilisi State University),
Tbilisi, Georgia
Deborah A. DeMott Duke law school, Duke University, Durham, NC, USA
Akiko EJIMA Law School, Meiji University, Tokyo, Japan
Giuseppe Franco Ferrari Bocconi University, Milano, Italy
Whitmore Gray Michigan University, ANN ARBOR, America
Tatjana Josipović School of Law, University of Zagreb, Zagreb, Croatia
Uwe Kischel University of Greifswald, Faculty of Law and Economics, Greifswald,
Germany
Hannu Kiuru Helsinki, Finland
Ida Lintel Former intern at the Netherlands Institute of Human Rights, HT, Utrecht,
The Netherlands
Chang-fa Lo College of law, National Taiwan University, Taipei, Taiwan ROC
Irina Moroianu Zlătescu Romanian Institute for Human Rights, Bucharest,
Romania
Luísa Neto Faculty of Law, University of Porto, Porto, Portugal
Leila Nadya Sadat School of Law, Washington University, St. Louis, Missouri,
USA
Stephen C. Thaman School of Law, Saint Louis University, St. Louis, USA

xiii
xiv Contributors

Marthe Lot Vermeulen Former staff member of the Netherlands Institute of Human
Rights, HT, Utrecht, The Netherlands
Yonatan Weisbrod Faculty of Law, Hebrew University of Jerusalem, Jerusalem,
Israel
Reinhard Zimmermann Comparative and Private Law, Max Planck Institute,
Hamburg, Germany
Fryderyk Zoll School of Law, University of Osnabrück, Osnabrück, Germany
Jagiellonian University, ul. Olszewskiego 2, Poland
About the Authors

Jean-Bernard Auby Professor of Law, Director of the Chair “Mutations of Public

Action and Publi Right at Sciences Po.
Prof. Jürgen Basedow Director, Max Planck Institute for Comparative and In-
ternational Private Law, and Professor of Law, University of Hamburg/Germany;
1986–1995 Professor at the University of Augsburg; 1995–1997 Free University of
Berlin. Studies of Law and Sociology in Hamburg, Geneva/Switzerland, Pavía/Italy
and at Harvard Law School, Cambridge/Mass./USA. Visiting professor at numerous
foreign universities. 2000–2008 Member and Chairman, German Monopolies Com-
mission. Since 2006 Secretary General, International Academy of Comparative Law.
Associate Member, Institut de droit international.
Prof. Tomer Broude Sylvan M. Cohen Chair in Law Academic Director, Minerva
Center for Human Rights Faculty of Law, Vice Dean at the Hebrew University of
Jerusalem.
Prof. Lado Chanturia is a full professor of law at the Javakhishvili State University
in Tbilisi, Georgia, and a visiting professor at the Christian-Albrechts-University of
Kiel, Germany. Before, he was chairman of the Supreme Court of Georgia, Minister
of Justice of Georgia, advisor to the President of Georgia, and senior advisor of the
German International Cooperation (GIZ) for legal and judicial reforms in Central
Asia. He was research fellow at the universities of Göttingen and Bremen, Germany,
as well as at the Max Planck Institute for Comparative and International Private Law,
Hamburg, Germany.
Prof. Deborah A. DeMott is the David F. Cavers Professor of Law, Duke Univer-
sity of School of Law. Professor DeMott served as the sole Reporter for the American
Law Institute’s Restatement (Third) of Agency; her other books and scholarly arti-
cles focus primarily on agency law, fiduciary obligation, and corporate governance.
Professor DeMott received a B.A. from Swarthmore College and a J.D. from New
York University School of Law.
Prof. Akiko EJIMA Meiji University Akiko Ejima is Professor of Constitutional
Law, Meiji University, Tokyo, LLM in Law & Doctor of Law (Meiji University),
Visiting Scholar at King’s College, University of London, Visiting Fellow at Harvard

xv
xvi About the Authors

Law School and Visiting Scholar at Faculty of Law, University of Cambridge. Her
research topics include the multi-layered human rights protection system (especially
the European Convention on Human Rights), the symbiotic relationship between
constitutional law and international human rights treaties (especially human rights
situation in the United Kingdom), freedom and security and legal regulation of
political finance.
Prof. Giuseppe F. Ferrari is Full professor of Public Comparative Law at Bocconi
University, Milan where he teaches Public Comparative Law and Civil liberties and
Human rights, and President of the Italian Association of Public Comparative and
European Law. Prof. Ferrari is the author of more than 140 publications among
books, articles and essays published in Italy and abroad. Apart from his scientific
research activities, prof. Ferrari has been invited to give lectures all around the world,
including at Hong Kong University and at Virginia Law School. Since 2002 he has
been a member of the Committee of experts on Public Administration, established
by the Economic and Social Council of the UN General Assembly.
Prof. Whitmore Gray Graduated from Michigan Law School 1957, Editor in
Chief Michigan Law Review. Graduate study at University of Paris and Muenchen
University. Visiting Professor Stanford University Law School, Tuebingen Univer-
sity, Muenster University, Kyoto University, Tokyo University, Fordham University
1988–2012 and Peking University School of Transnational Law Shenzhen 2008-
Present. Lecturer and consultant re law reform in Thailand, Indonesia, Cambodia,
Vietnam, Hong Kong and Philippines. Published English translations of Russian Re-
public Civil Code and Chinese General Principles of Civil Law and its Supreme Court
Interpretation, and articles on civil law, commercial arbitration and legal education.
Prof. Dr. Sc. Tatjana Josipović is a professor of civil law of Faculty of Law,
University of Zagreb. She teaches courses in Civil Law, European Private Law and
Land Registry Law. She has written many scholarly and professional papers and
several books on civil law and European private law and presented papers in numerous
national and international conferences and seminars. Prof. Dr. Tatjana Josipović is
a member of a number of scholarly and professional associations. She is a fellow
of the Academy of Legal Sciences of Croatia; associate member of International
Academy of Comparative Law, a member of the Croatian Society for Civil Law
Science and Practice; the Society of European Contract Law (SECOLA); European
Law Institute; Civil Law Forum for South East Europe. Prof. Dr. Tatjana Josipović
was a head of the task-force preparing Croatia’s accession negotiations in the chapter
Right of Establishment and Freedom to Provide Services; member of the task-force
preparing accession negotiations in the chapter Free Movement of Capital.
Prof. Uwe Kischel born 1964; assistant at the Max Planck Institute for Comparative
and International Private Law, Hamburg 1991–1992; Dr. jur. Marburg 1992; LL.M.
(Yale) 1992–1993; attorney-at-law (New York) 1994; clerkship at the German Con-
stitutional Court 1995–1998; senior assistant, University of Mannheim 1998–2002;
Habilitation, venia legendi (teaching qualification) for public law, public interna-
tional law, European law, and comparative law, Mannheim 2002; substitute professor,
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