land acquisition for public use in japancabinet order on details of land expropriation act...
TRANSCRIPT
Land Acquisition & Compensation for Public Usein Japan
- Outline & Expropriation -
2015/2/18 公共用地補償機構 JOLAC 1
General Incorporated FoundationJapan Organization for Land Acquisition and Compensation
一般財団法人 公共用地補償機構
February 18, 2015
JOLAC
(Vice-President, JOLAC )
YAMASHITA Yasuhiro
CONTENTS
2015/2/18 公共用地補償機構 JOLAC 2
Ⅰ Outline
Ⅲ Expropriation
Ⅱ Compensation Theory
2.Organizational Framework
4.System-infrastructure
3.Legal Framework
- Just Compensation & Due Process -
1.Legal Scheme of Expropriation
2.Procedure of Expropriation
Ⅳ. Recent Trends & Problems
1. Outline of Process
APPENDIX 1 The Constitution of Japan (Extraction)
APPENDIX 2 Civil Code of Japan (Extraction)
APPENDIX 3 Provisions on Life Rebuilding Measures
“The Japan Organization for Land Acquisition and Compensation “
2015/2/18 公共用地補償機構 JOLAC 3
The Japan Organization for Land Acquisition and Compensation was
settled as a public interest corporation with the approval of the Minister of
Construction in 1989, and converted to a general incorporated foundation
with the approval of the Prime Minister in 2012.
Purposes of the Organization are to cooperate with public agencies in land
acquisition or land use for Public Projects and to research and study on
compensation.
① Compensation Consultant Activities
② Researches & Studies on Land Acquisition and Compensation for Public Use
3F Avenue-Otowa Bldg., 2-2-2, Otowa, Bunkyo-ku, Tokyo, 112-0013, Japan
General Incorporated Foundation
ACTIVITIES
INTRODUCTION
2015/2/18公共用地補償機構 JOLAC 4
1.Outline of Process on Land Acquisition for Public Use
Deposit
OK
NO
Survey
Evaluation
Negotiation
Contract
(Compulsory Acquisition)
Land Expropriation
(Purchase by agreement)
Determination for Expropriation
Expropriation Committee
Payment Delivery of Land
Registration
Payment Delivery of Land
Registration
Compulsory Execution
Ⅰ OUTLINE
Explanation
① Project Authorities of Public Works or Public Welfare UndertakingNational GovernmentLocal governments (Prefectures, Municipalities)Incorporated administrative agencies (Urban Renaissance Agency, Japan Water Agency etc.)
Expressway companies, Electric power companies, Railway companiesEtc.
② Compensation Consultants※Contractor of Compensation Consultant Business
Compensation Consultant Registration System (by MLIT in 1984)※MLIT : the Ministry of Land, Infrastructure, Transport and Tourism
about 3000 consultants registered
“Qualified Specialist of Compensation” licensed by JCCA※ JCCA : Japan Compensation Consultant Association
2015/2/18 公共用地補償機構 JOLAC 5
2. Organizational Framework of Land Acquisition for Public use
□ Constitution
3. Legal Framework of Land Acquisition for Public use
□ Purchase by agreement
Guideline & standards on Loss Compensation for Public Use Land Acquisition
Civil CodeEtc.
□Cabinet Decision “The Guideline of Standard for Compensation forLoss Caused by Acquisition of Land for Public Use”
□ Standards of each ministry and agency etc□ “the Standard of compensation for loss Caused by Acquisition of
Land for Public Use Guidelines” of “Yotairen”
2015/2/18 公共用地補償機構 JOLAC6
□ Compulsory Acquisition
Land Expropriation ActEtc.
Article 29.The right to own or to hold property is inviolable.Property rights shall be defined by law, in conformity with the public welfare.Private property may be taken for public use upon just compensation therefor.
THE CONSTITUTION OF JAPAN
Article 44:All persons, individually or collectively, shall have the right to ownership. Only
Khmer legal entities and citizens of Khmer nationality shall have the right to own land.
Legal private ownership shall be protected by law.The right to confiscate properties from any person shall be exercised only in
the public interest as provided for under the law and shall require fair and just compensation in advance.
The Constitution of the Kingdom of Cambodia
September 21, 1993(the 1999 amendments)
November 3, 1946
Compulsory Purchase Provisions In The Constitution
[English Translation ]
2015/2/18 公共用地補償機構 JOLAC7
Acquisition of Title
・For doing the public works in any lands, the public works authority must have a valid Legal Title to such lands.
・As for the title , the public works authority generally acquires ownership of land.※Exceptionally, Leasehold, Superficies, etc.
Acquisition of Ownership
Acquisition of Title
※If the public works were executed at other owner ‘s land without any titles ,compensation for damages might be claimed.
・Ownership ,which has the power of total control to the thing , is “the right to freely use, obtain profit from and dispose of the thing owned, subject to the restrictions prescribed by laws and regulations.”
2015/2/18 公共用地補償機構 JOLAC8
Method of acquiring land ownership
1.Purchase by agreement general
Acquisition by negotiation
2.Compulsory purchase(Eminent Domain, Expropriation)exceptional
Constitution of Japan§29 , Land Expropriation Act
Purchase by agreement Compulsory purchase
Delivery of landwithout compulsion
Clearout of Land occupation
Acquiring Ownership
Just Compensation
compulsory execution by governor
In general, land acquisition for public projects is not done by procedure under the Land Expropriation Law but by mutual negotiation among the project initiator, the landowner, and interested parties.
2015/2/18 公共用地補償機構 JOLAC9
Sale of Land
buyer seller
Ownership of LAND
purchase money
the Principle of the Freedom of Contract
The Principle of the Freedom of Contract is the idea that the contract
should be left to the free intention of the parties concerned to reach or
not to reach the agreement. And, have the government and the
society hands off to the contents of the private contracts.
Freedom of Conclusion of a Contract
Freedom of Adversary Party Selection
Freedom of Contract Contents Determination
Freedom of Form
※Correction to The Principle of The Freedom of ContractLand Lease and House Lease Act
Interest Rate Restriction Act
(EX)
Requirements of Perfection of Changes against third parties
in Real Rights concerning Immovable properties
2015/2/18 公共用地補償機構 JOLAC 10
Real Property Registration
Purchase by agreement
Land Acquisition for Public Use Sale of Land for Private Use
Standard for CompensationBy Agreement
Cannot Agree
Compulsory Purchase Cannot buy
Justice ,Equality
(Financial Source: Tax etc.)
(Only -Competent Projects for
Expropriation)
Principle of Freedom of
Contract
・Due Process
Fundamental Human Rights Public Interest※Sovereign Power
Equal Parties
Civil Code
Land Expropriation Act
Purchase by agreement Amount of Purchase Money
Amount of Purchase Money
Agree
・Just Compensation
2015/2/18 公共用地補償機構 JOLAC 11
2015/2/18公共用地補償機構 JOLAC
12
Laws & Regulations (Constitution. Civil Code, Land Expropriation Act etc.)
Standard for Compensation
Real Property Registration Basic Resident Registration(the residence certificate)
(Family Registry )
Land Prices Public Announcement
Real Property AppraisalCompensation Consultants
Rule & Procedure
assistance by professional
4. System-infrastructure on Land Acquisition for Public Use
What right ?
Whose right ?
Where is the real property?
Where does Owner live ?
Is Owner alive?
Does Owner has any family?
evaluation
Survey
Evaluation
Negotiation
Maps Real Property
Ⅱ COMPENSATION THEORY
2015/2/18 公共用地補償機構 JOLAC13
THE CONSTITUTION OF JAPAN
Article 29.The right to own or to hold property is inviolable.Property rights shall be defined by law, in conformity with the public welfare.Private property may be taken for public use upon just compensation therefor.
Land Expropriation Act , Chapter6Cabinet Order on Details of Land Expropriation Act Article88-2
Etc.
[ Compulsory Acquisition ]
[ Purchase by agreement ]
Cabinet Decision “The Guideline of Standard for Compensation for Loss Caused by Acquisition of Land for Public Use”
Other standards on Loss Compensation for Public Use Land Acquisition
approximately equal Compensation Level=[exception] Time of Calculating Compensation etc.
Just Compensation Under the Land Expropriation Act
“Just Compensation” under the Land Expropriation Act should be “Full Compensation”, which means the objective value of the acquired property (fair market value) should be provided for compensation.
2015/2/18 公共用地補償機構 JOLAC 14
Under the Land Expropriation Act, compensation for loss should be full compensation, that is, the property value of an aggrieved person does not change before and after condemnation, and the amount should be sufficient enough to acquire alternative land nearby which is equivalent to the land taken.
[Sup. Ct., October 18,1973, 27 Minshu 9, 1210 [1973]]
SUPREME COURT
2015/2/18 公共用地補償機構 JOLAC 15
Principle of Individual Payment
Compensation for losses shall be made to each individual involved.
However, this shall not apply to the case it is difficult to individually
estimate the compensation amounts.
Method of Compensation
Compensation for losses shall ,in principle, be made with money.
In the case the holder of right requests that the loss be compensated with
the offer of land or building etc. as the substitute of compensation money,
efforts shall be made to make such offer in kind as far as possible, provided
that the request is considered to be reasonable and cannot be met
otherwise.
In order to provide comprehensive requisites for compensation and its calculation ,and ,thereby , to ensure smooth implementation of the public project and appropriate compensation for loss, the Cabinet decided on “The Guideline of Standard for Compensation for Loss Caused by Acquisition of Land for Public Use” in 1962.
As under this guidelines, each ministry and agency enacted or amended the
standards of compensation for loss immediately.The Liaison Conference for Measures on Acquisition of Land by public
works enterprises and organs – generally called “ the Yotairen” made internal detailed standards-“the Standard of compensation for loss Caused by Acquisition of Land for Public Use” -in 1962.
① Guideline by Cabinet decision
② Yotairen Standards
2015/2/18 公共用地補償機構 JOLAC 16
System of Purchase by agreement (Acquisition by negotiation)
Guideline & standards
Outline of Compensation for Loss by Land Acquisition
[1] Compensation for Rights
Compensation for Land
Compensation for Ordinary Loss Caused by Land Acquisition
Compensation for Removal of Building
Compensation for Business Loss
etc.
Land Acquisition
[2]
2015/2/18 公共用地補償機構 JOLAC 17
2015/2/18 公共用地補償機構 JOLAC 18
Price of Land
On the basis of the Normal Transaction Price
Price of land shall be calculated on the basis of the following materials , and
shall be determined after over all comparison and evaluation
a) Comparison with normal transaction price in the market
b) Public Notice of Land Prices by national government & Standard Land
Prices by local governments
c) Appraisal Prices by Real Estate Appraiser
d) Others
※Public notice of land prices
It is to show the general public sound prices for standard land as of January 1 every year
under the Public Notice of Land Prices Law.
Compensation for Land
Land
Building
Ownership
Ownership
Land
Building Ownership
Land Expropriation
Removal of Building
(In principle)
Compensation
Compensation
Japan
Many Other Countries
Expropriation
Ownership of real estate -Distinctiveness of Japan
2015/2/18 公共用地補償機構 JOLAC19
REFERENCE
Ownership of Land
Lease of Land
Lessee =Owner of Building
Lessor = Owner of Land
Lessee =Tenant of Building
/Residents
Lessor =Owner of Building
Ownership of Building
Mortgage
Mortgage
(Bank)
(Bank)
Lease of Building
[ Example ] rights on Land & rights on Building
2015/2/18 公共用地補償機構 JOLAC 20
※In Japan, land is regarded as a separate asset from buildings.
※There is a property holding system called “land lease”: the ownership of a building only, excluding the land.
A land lease is only granted under a provision that the building is owned by a different party from the actual landowner.
REFERENCE
2015/2/18 公共用地補償機構 JOLAC 21
Compensation for Remaining Land
Compensation for Land
Remaining Land :
the rest of the land acquired for a public project
Acquired for
public use
◆If the remaining land is so narrow as to cause the decline in price or the value of
use due to difficulty in usage , compensation shall be made to cover such loss ,
or ,depending on the situation, the remaining land is acquired.
.
COMPENSATION FOR ORDINARY LOSSCaused by Land Acquisition
EX. Compensation for removal expenses
Compensation for business loss
for which any landowner who is deprived of rights to land can claim compensation, under usual circumstances, for unavoidable economic loss caused by condemnation, but he or she cannot claim for loss under special circumstances.
Compensation for Ordinary Loss ;
2015/2/18 公共用地補償機構 JOLAC 22
2.Expropriation(Compulsory Purchase)
①Compensation for Land or Rights on land
at the time of Notification of Project Recognition
(※Revision Rate Corresponding to
the changes of prices)
②Compensation for Ordinary Loss
at the time of Determination for Vacation
1.Purchase by Agreement
at the time of Concluding the Contract
2015/2/18 公共用地補償機構 JOLAC 23
Time of Calculating Compensation
Fixed Price
Determination for Acquisition of Right
Notification of Project Recognition
Planning
Market Price Speculation or Expectation
Amount of Compensation
Price Increase
Price Decrease
Land to be Expropriated
The revision rate corresponding to the changes of prices(Land Expropriation Law§71)
The fair price calculated by considering the transaction prices of the similar lands in the neighborhood
Amount of Compensation for Land in the Land Expropriation
Land Expropriation Law
belong to Project Authority
2015/2/18 公共用地補償機構 JOLAC 24
Ⅲ EXPROPRIATION
Land Expropriation Act(Act No.219 of 1951)
Under Article 29, Paragraph 3 of the constitution, the Land Expropriation Act was enacted in 1951 as a general statute concerning compulsory acquisition of land for public purpose.
(Compulsory purchase, Compulsory acquisition, Expropriation, or Eminent Domain)
2015/2/18 公共用地補償機構 JOLAC 25
System of Expropriation
Land Ownership
Building
Rights on Land
Private OwnerProject Authority
Outline of Land Expropriation
Compensation Acquisition of Ownership
※Extinction of Rights
Land Expropriation Procedure
registration
Determination for Expropriation
Delivery of Land
2015/2/18 公共用地補償機構 JOLAC 26
LAND LAND
Legal Scheme of Expropriation in “the Land Expropriation Act” of Japan
Project Authority
Project Recognition Authority(Minister of LIT/ Governor of Prefecture)
Expropriation committee
of Prefecture
Owner /Relevant Persons
who have rights on the land
※With regard to city planning projects, the Land Expropriation Act §20 ( the Project Recognition )shall not be adapted , but the
approval or recognition of City planning projects by City Planning Act shall be substituted for it.
Determination for
ExpropriationDelivery of Land Loss Compensation
(Exercising their authority independently )
Examination
Determination
Compensation for Losses
Date of Right Acquisition
Time Limit of Land Delivery etc.
[Actor of Expropriation]
Pro
ject R
eco
gn
ition
Pro
ce
ss
Exp
rop
riatio
n C
om
mitte
e P
roce
ss
2015/2/18 公共用地補償機構 JOLAC 27
Acquisition of Right
Legal Scheme of Expropriation in “ Law on Expropriation ” of Cambodia
The state is the only party that carries out expropriation
Government
Expropriation CommitteeComplaint Resolution Committee
Owner of immovable property
and/or rightful owner
Ministry/Institution
Project Implementer
Approval of the Declaration of Expropriation Project
Survey of Lights of Owners and/or Rightful Owners
Recording Description of Rights & Related Problems
Public Consultation with Authorities
Declaration of Expropriation ProjectDecision on Expropriation
(Ownership & Real Right to be Expropriated Compensation
Deadline for Moving from Location)Request of Taking Measures for Leaving the Location ( to
Competent Institutions or Authorities )
Co
mp
lain
t to
De
cis
ion
of E
xp
rop
ria
tio
n C
om
mitte
e
Decision on Complaint to
Expropriation Committee ‘s Decision
led by representatives of Ministry
of Land Management, Urban
Planning and Construction
led by a representative of Ministry of Economy and Finance
State Enterprise or Public Establishment, Contractor or Investor.
2015/2/18 公共用地補償機構 JOLAC 28
REFERENCE
Organization for Expropriation Procedure
Minister of LIT・Project of which Project Authority is State or Prefecture
・Project on Important Harbor, Railway, Public Airfield etc. which will affect the interests of an area beyond the area of one prefecture etc.
Prefectural Governor Other Projects
Expropriation Committee
Expropriation Committees of Prefectures
・7 members( appointed by Prefectural Governor)・Committees shall exercise their authority independently
Determination for Expropriation
Project RecognitionProject Recognition Authority
47 committees
2015/2/18 公共用地補償機構 JOLAC29
OUTLINE Of EXPROPRIATION PROCESS (Land Expropriation Act)
Explanatory Meeting for The Project
Application for Project Recognition (Project Authority)
Public Notice & Inspection of Written Application
Public Hearing
Public Notice of Project Recognition ( Project Recognition Authority )
Drawing up of Statement of Land & Articles (Project Authority)
Application for Determination
Examination by Expropriation Committee
Determination for Right Acquisition & Determination for Vacation(Expropriation Committee )
Payment of Compensation (Project Authority)
Acquisition of Right (Project Authority)
Delivery of Land or Article
Administrative Compulsory Execution Process
Application for Substitute Execution by Administration (Project Authority)
Substitute Execution by Administration ( Governor)
Project RecognitionProcess
Expropriation CommitteeProcess
for Public Use
forJust Compensation
※Exception of City Planning Projects
2015/2/18 公共用地補償機構 JOLAC 30
NO
Land Expropriation Act
Project AuthorityOwner of Land Relevant Persons who have rights on the land
Determination for Expropriation
Payment or Deposit Compensation Money
Delivery of Land /Removal of Articles
Substitute Execution by Administration
Project Recognition Authority(Minister of LIT/ Governor)
Owner of Land Relevant Persons
Expropriation Committee
Application for Determination
Determination for Right AcquisitionDetermination for Vacation
Reconciliation
Governor
Determination of Rejection
Owners of Land etc.
(The case of expropriation of land )
Application for Project Recognition
Project Authority
Project Recognition
Examination
Project RecognitionProcess
Expropriation CommitteeProcess
Administrative Execution Process
within 1 year
2015/2/18 公共用地補償機構 JOLAC 31
Competent Projects for expropriation
The Land Expropriation Act( §3 ) enumerates projects that may expropriate
land . Road construction , river improvement, water supply , railway ,
construction , waste disposal facilities etc. are examples.
① Competent project s for expropriation by Land Expropriation Act §3
②Competent project s for expropriation by other lows
City planning projects of the City Planning Act shall be deemed to be
projects of the Land Expropriation Act § 3 by the City Planning Act
69.
※City planning projects: projects for the improvement of a city
planning facility and urban development projects having obtained
permission or approval under City Planning Act §59.
With regard to city planning projects, the Land Expropriation Act
§20 ( the Project Recognition by minister or governor )shall not be
adapted , but the approval or recognition of City planning projects by
City Planning Act §59 shall be substituted for it.
2015/2/18 公共用地補償機構 JOLAC 32
2015/2/18 公共用地補償機構 JOLAC
Original Data Source: MLIT
※ City Planning Projects are included
252
227
194
142
224
175
193 193
211
193
180
199209
161
174180
153
113 112
139
178
203
146134
124
171
152149
19 1622
6
1911 8 6
13 916 13
8 10
5144 46
3729
57
8
2636
2717
3545
34
0
50
100
150
200
250
300
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013
Apprication
Determination
Reconciliation
Withdrawal
“Determination for Right Acquisition” by Expropriation Committee( Land Expropriation Act)
33
2015/2/18 公共用地補償機構 JOLAC 34
Rule of “Application at the appropriate time”
on the Expropriation Procedure
◆After Setting up Piles for Site Width : 3 years
◆Land Acquisition Rate : 80%
or
Application for Project Recognition
Preparation for Expropriation Procedure
in principle
2015/2/18公共用地補償機構 JOLAC
35
Expropriation committee
of Prefecture
Project Recognition Authority
Project Recognition
Determination for Expropriation
Project Authority
Owner /Relevant Persons
Filing a Lawsuit
Judicial Court
◆Vs. State or Prefecture(Project Recognition
Authority)◆Vs. Prefecture(Expropriation Committee)
◆Vs. Project Authority / Vs. Owner /Relevant
Persons (a suit concerning the Determination
on compensation for loss)
Lawsuit on Land Expropriation
Ⅳ. RECENT TRENDS & PROBLEMS
2015/2/18 公共用地補償機構 JOLAC 36
1.Acceleration of Expropriation Procedure
※Recovery & Reconstruction from the Great East Japan Earthquake(2011.3.11)
3. Life Rebuilding Measures
2.Countermeasures to Missing Person Problem
●Management of Absentee Property
●Adjudication of Disappearance
Administrator of Absentee Property
●Expropriation Procedure
Article 11. The people shall not be prevented from enjoying any of the fundamental
human rights. These fundamental human rights guaranteed to the people by this
Constitution shall be conferred upon the people of this and future generations as
eternal and inviolate rights.
The Constitution of Japan
Constitution November 3, 1946
Article 12. The freedoms and rights guaranteed to the people by this Constitution
shall be maintained by the constant endeavor of the people, who shall refrain from
any abuse of these freedoms and rights and shall always be responsible for utilizing
them for the public welfare.
Article 16. Every person shall have the right of peaceful petition for the redress of
damage, for the removal of public officials, for the enactment, repeal or amendment
of laws, ordinances or regulations and for other matters; nor shall any person be in
any way discriminated against for sponsoring such a petition.
(Extraction)
372015/2/18 公共用地補償機構 JOLAC
APPENDIX 1
Article 31. No person shall be deprived of life or liberty, nor shall any other
criminal penalty be imposed, except according to procedure established by
law.
Article 17. Every person may sue for redress as provided by law from the State or
a public entity, in case he has suffered damage through illegal act of any public
official.
Article 29. The right to own or to hold property is inviolable.
Property rights shall be defined by law, in conformity with the public welfare.
Private property may be taken for public use upon just compensation therefor.
382015/2/18 公共用地補償機構 JOLAC
Civil Code of Japan
Act No. 89 of April 27, 1896
(Fundamental Principles)
Article 1 Private rights must conform to the public welfare.
(2) The exercise of rights and performance of duties must be done in good faith.
(3) No abuse of rights is permitted.
(Custom Inconsistent with Default Rules)
Article 92 In cases there is any custom which is inconsistent with a provision in any law or regulation
not related to public policy, if it is found that any party to a juristic act has the intention to abide by such
custom, such custom shall prevail.
(Extraction)
(Public Policy)
Article 90 A juristic act with any purpose which is against public
policy is void.
(Manifestation of Intention Inconsistent with Default Rules)
Article 91 If any party to a juristic act manifests any intention which is inconsistent with a
provision in any laws and regulations not related to public policy, such intention shall prevail.
□ [ Principle ]
392015/2/18 公共用地補償機構 JOLAC
APPENDIX 2
(Requirements of Perfection of Changes in Real Rights concerning Immovable properties)
Article 177 Acquisitions of, losses of and changes in real rights concerning immovable
properties may not be asserted against third parties, unless the same are registered pursuant to
the applicable provisions of the Real Estate Registration Act (Act No. 123 of 2004) and other
laws regarding registration.
(Real Estate and Movables)
Article 86 Land and any fixtures thereto are regarded as real estate.
(2) Any Thing which is not real estate is regarded as movable.
□ [ Real Estate ]
(Content of Ownership)
Article 206 An owner has the rights to freely use, obtain profit from and dispose of the Thing
owned, subject to the restrictions prescribed by laws and regulations.
□ [ Real Right ] §175-
(□ Possessory Right §180-)
□ Ownership§206-
(Use of property in co-ownership )
Article 249 Each co-owner may use the entire property in co-ownership in proportion to his/her
share.
402015/2/18 公共用地補償機構 JOLAC
(Content of Superficies)
Article 265 A superficiary shall have the right to use the land of others in order to own structures,
or trees or bamboo, on that land.
(Content of Servitudes)
Article 280 A person entitled to a servitude shall have the right to make lands of others
available for the benefit of their own lands in accordance with purposes prescribed in the acts
establishing the servitudes; provided, however, that those rights should not violate the
provisions (limited to those that relate to public policy) under Section 1 of Chapter III (Extent of
Ownership).
□ Superficies §265-
□ Servitude§280-
(Content of Mortgages)
Article 369 A Mortgagee shall have the right to receive the performance of his/her claim prior
to other obligees out of the immovable properties that the obligor or a third party provided to
secure the obligation without transferring possession.
□ Mortgage §369-
□ Security Interest ]
412015/2/18 公共用地補償機構 JOLAC
□ Claim §399-
□ Contract §521-
□ Sale §555-
(Sale)
Article 555 A sale shall become effective when one of the parties promises to transfer a certain real
rights to the other party and the other party promises to pay the purchase money for it.
□ Lease §601-
(Leases)
Article 601 A lease shall become effective when one of the parties promises to make a certain
Thing available for the using and taking the profits by the other party and the other party promises to
pay rent for the same.
(Damages due to Default)
Article 415 If an obligor fails to perform consistent with the purpose of its obligation, the obligee shall
be entitled to demand damages arising from such failure. The same shall apply in cases it has become
impossible to perform due to reasons attributable to the obligor.
(Scope of Damages)
Article 416 The purpose of the demand for the damages for failure to perform an obligation shall be
to demand the compensation for damages which would ordinarily arise from such failure.
(2) The obligee may also demand the compensation for damages which arise from any special
circumstances if the party did foresee, or should have foreseen, such circumstances.
422015/2/18 公共用地補償機構 JOLAC
2015/2/18 公共用地補償機構 JOLAC 43
(Adjudication of Disappearance)
Article 30 (1) If it is not clear whether the absentee is dead or alive for 7 years, the family court
may make the adjudication of disappearance at the request of any interested person.
(2) The procedure of the preceding paragraph shall likewise apply with respect to any person who
was engaged in any war zone, was aboard any vessel which later sank, or was otherwise exposed
to any danger which could be the cause of death, if it is not clear whether such person is dead or
alive for one year after the end of the war, after the sinking of the vessel, or after the termination of
such other danger, as the case may be.
(Effect of Adjudication of Disappearance)
Article 31 Any person who has become the subject of the adjudication of disappearance pursuant
to the provision of paragraph 1 of the preceding Article is deemed to have died upon elapse of the
period set forth in such paragraph, and a person who is the subject of the adjudication of
disappearance pursuant to the provision of paragraph 2 of the same Article is deemed to have
died upon the termination of such danger.
(Administration of Absentee Property)
Article 25 (1) In cases any person who has left his/her domicile or residence (hereinafter referred
to as "absentee") did not appoint an administrator of his/her property (hereinafter in this Section
referred to simply as "administrator"), the family court may, at the request of any interested person
or a public prosecutor, issue an order for necessary actions for the administration of such property.
The same shall apply in cases the authority of the administrator ceases to exist during the absence
of the absentee.
□ Management of Absentee Property
□ Adjudication of Disappearance
2015/2/18 公共用地補償機構 JOLAC 44
(Deposit)
Article 494 If an obligee refuses, or is unable, to accept the performance, the person who can make
the performance (hereinafter in this Division referred to as the "performer") may be relieved from
his/her obligation by depositing the subject-matter of the performance with an official depository. The
same shall apply in cases the performer is unable to ascertain the obligee without any negligence on
the part of the performer.
(Method of Deposit)
Article 495 (1) The deposit pursuant to the provision of the preceding Article must be made with
the official depository having jurisdiction over the district where the relevant obligation must be
performed.
□ Deposit
(Enforcement of Performance)
Article 414 If an obligor voluntarily fails to perform any obligation, the obligee may request the
enforcement of specific performance from the court; provided, however, that, this shall not apply to the
cases where the nature of the obligation does not permit such enforcement.
(2) In cases the nature of the obligation does not permit the enforcement of the specific performance, if it
is an obligation for an act, the obligee may request the court to cause a third party to perform such act at
the expense of the obligor; provided, however, that with respect to any obligation for any juristic act, the
manifestation of intention of the obligor may be achieved by a judgment.
(4) The provisions of the preceding three paragraphs shall not preclude demanding damages.
□ Enforcement of Performance
(Damages in Torts)
Article 709 A person who has intentionally or negligently infringed any right of others, or legally
protected interest of others, shall be liable to compensate any damages resulting in consequence.
(Compensation for Damages Other than Property)
Article 710 Persons liable for damages under the provisions of the preceding Article must also
compensate for damages other than those to property, regardless of whether the body, liberty or
reputation of others have been infringed, or property rights of others have been infringed.
□ Tort
452015/2/18 公共用地補償機構 JOLAC
2015/2/18 公共用地補償機構 JOLAC 46
Provisions on Life Rebuilding Measures
“On Enforcement of The Guideline of Standard for Compensation for Loss Caused by Acquisition of Land for Public Use”(1962 Cabinet agreement)
If necessary ,Project Authority shall make an effort to take the followingmeasures for Life Rebuilding
・Mediation of acquisition of land or building・Introduction or the guidance of the occupation
□
□ The Guideline of Standard for Compensation for Loss Caused by Acquisition of Land for Public Use(1962 Cabinet Decision)
◆§45 (Compensation for Remaining Residents)
If there is reason to believe that use of the land subject to the
acquisition or use of land and others for the project isolates persons
from their own community, causing a significant loss to them
beyond an acceptable level , compensation shall be made to the
persons , upon their request, at an amount considered reasonable
according to conditions peculiar to each person.
APPENDIX 3
2015/2/18 公共用地補償機構 JOLAC 47
□ Revision of “Land Expropriation Act”in2001
In 2001, Article 139-2 (Life Rebuilding Measures ) is added by the Partial revision of Land Expropriation Act (Act No.103 of 2001).Under some requirements by this Article, Project Authority shall
make an effort to mediate the following measures for Life Rebuilding to the person who comes to lose base of life by offering land for project .
– Acquisition of Land ,Acquisition of Building,Introduction , Guidance or Training of Occupation .
◆ §46(Compensation for Unemployed Persons)
If there is a reason to believe that the use of the land subject to the
acquisition or use of land and others causes a persons employed by the
holder of title, right or interest in the land and others to lose his job, and
that the person cannot earn income until he finds other job, compensation
shall be made to the person, upon his request, at an amount that is
considered reasonable within the limit equivalent to the previous wage, for
the period which is normally required for job finding.