判例における「農地」の概念 : 農業法判例研究覚書(一)

After World War II, we Japanese had the Farmland Reform Plan for the democratization of Japan. This Reform was carried out under the "Law Reform Act for Adjusting the Farmland, 1945" and the "Act for Establishing the Peasant Proprietorship, 1947". Then, to maintain the outcomes of the Reform, the Farmland Act (Nochi-ho 農地法) has been enacted in 1952. During 17 years, this Act has functioned effectively and many cases have appeared before the courts and the documents of cases have been put in a file in many Law Reports up to the present. Recently the present writer has had a chance to put in order and investigate all these cases which contain those of the "Adjusting the Farmland Act, 1938" etc., of the "Establishing the Peasant Proprietorship Act, 1947" etc., and of the "Farmland Act, 1952" etc. So, there will be shown these cases and sketched the outline of case law about Farmland and Agricultural body corporate from the point of issues litigated. In this article, the present writer will introdnce the concept of "Farmland" in the cases. In these cases, one could see the fact that the parties concerned often litigated whether the land concerned was the "farmland" or not. According to the definition of the Act, for example in the "Farmland Act", "Farmland" was defined as "the land which is used for farming or cultivation". This expression looks like tautological, but in many cases, this should mean that "the land which is actually used for farming or cultivation in its real state or in appearance: in a word "the land de-facto used for farming" is the "Farmland". So to speak, this "De-facto principle" has been presented in almost all cases and up to now this principle has prevailed, being settled and established. The De-facto principle requires that, when one would define the farmland, one should decide the character of the land, mainly from the viewpoint of its real state or appearance and independent from or unrelated to the circumstance, history and name (Chi-moku 地目) of the land and or to the intention of the land owner or lessee and so forth. Now, this simple but rigid principle seems to extend its function; that is, it meant at first, "the land used actually for farming is the farmland", or "the land used not actually for farming is not the farmland", but it now comes to mean "the land not used for farming is not the farmland". As well, I consider, this may be another phase of the said definction of the farmland and in a way, the consequence of the said "de-facto Principle".