Tokyo Barrister: Start the law firm bankruptcy

Chapter 161 Machiko's Counterattack
The four words that came to Machiko's mind were "analogous explanation".

[analogous explanation]

[The so-called "interpretation by analogy" is a method of legal interpretation.That is, when there is a gap in the legal provisions, it can be applied by analogy by referring to a certain clause.Among different branches of law, civil law often allows the application by analogy.However, the criminal law is based on the strict principle of legality and punishment, and analogy is strictly prohibited, but in some cases, it does not prohibit analogous interpretations that are beneficial to the defendant]

Machiko seems to have grasped a life-saving straw, like obtaining a precious lifebuoy on the stormy sea.In an instant, the beauty came alive again, and immediately raised her head and said, "The referee, we don't need to add written comments after the court, we can respond immediately."

Machiko stood up from behind the plaintiff's seat, "The civil code clause cited by the other party just now, although the clause stipulates that the owner of the right of way in the adjacent land is the owner of the land. However, this clause does not expressly exclude that other real estate owners shall not enjoy The right of way in adjacent land. Here, it should be considered that the law does not stipulate whether other real estate owners have the right of way in adjacent land.”

"That is, there is a legal gap here."

"There is a gap in the law. We should use the principle of analogy to explain." Machiko looked at Miyagawa opposite, her eyes became sharper, and she heard her voice say: "Aobadai in this case Although the apartment owners are not the owners of the real property involved, they are the occupants and users of the real property involved. That is, they have the right to occupy and use the land involved in the case.”

"Therefore. The key question here is, should the land use right holder or land occupancy right holder be able to claim the right of way in neighboring land like the land owner?"

As Machiko spoke, he became a little more sincere, and there seemed to be a dark look in his eyes, which made people feel pitiful, "Chief referee, please think about it, if we deny the right to use the land to exercise the right of way in the adjacent land , What kind of effect will it produce in the end?"

"Suppose a tenant rented a house from the landlord and signed a long-term lease. As a result, the same situation as this case appeared, and the construction around the house was blocked. And the landlord was lazy to file a right-of-way lawsuit for neighboring land. Then there is no doubt , the tenant would lose the means of relief. It would be unfair to the users of the real property."

"Chief judge. The original purpose of the right of way in adjacent land is to coordinate the conflicts in the use of adjacent land. The owner of the land is not necessarily the actual user. If the right of way in adjacent land can be filed without the actual user of the land, then The actual users of the land are more qualified to sue for the right of way!"

"Therefore, although the Civil Code currently only stipulates the land owner's right of way in adjacent land, it is applied by analogy according to this article. Land users, occupants, leaseholders, etc. Therefore, it is absurd for the other side to deny our standing to file a lawsuit on the grounds that the owner of the Aoba Terrace apartment is not the owner!”

After a complete discussion, he refuted Miyagawa's defense just now.

After finishing these words, Machiko's highly tense heart immediately calmed down a lot.I really underestimated my opponent this time.Unexpectedly, at the beginning of the court session, he was almost restrained by the other party.But fortunately, I reacted on the spot, otherwise the consequences would be really unimaginable.Afterwards, she took a small breath, walked back to the plaintiff's seat, and sat down.

Gu Meimen swayed the chair, saw Machiko come back, and said venomously beside him without losing the opportunity: "Your reaction is really too slow, Dai. You should be able to say it right away!"

"Heh!!!" Machiko replied angrily, "Lawyer Gu Meimen, you haven't read the case file carefully from beginning to end. I don't believe you can react so quickly."

Miyagawa frowned slightly when she heard Machiko's counterattack just now, she hadn't expected that the other party would refute from the perspective of analogy.

I thought it was a reply that could grab the other party's throat, but it seemed to be resolved by the other party.

Miyagawa lowered his head and thought for a moment, then stood up again, "Chief referee. The analogy that the other party proposed just now is not appropriate. The right of way in adjacent land is a burden of rights imposed on adjacent land. In other words, it is an adverse effect. It is based on the special provisions of the law, not the legal relationship between the two parties through the agreement. The generation of the right of way in adjacent land comes from the special provisions of the law, not the agreement of the parties. It is related to general civil rights. , obviously different."

"Therefore, the right of way in neighboring land cannot be applied by analogy. As a special burden imposed on real estate in neighboring land, it can only be exercised strictly in accordance with the law, and only the land owner can exercise it. If the analogy is applied at will, it means The adverse burden on neighbors will be greatly increased."

Machiko, who had just returned to her seat, saw that Miyagawa refuted again in less than a moment, her beautiful eyes could not help but stare.

This lawyer named Miyagawa is really difficult.

I didn't expect to be pushed so hard at the beginning of the trial.

Perhaps because of the somewhat similar backgrounds between Machiko and Miyagawa, the two people are actually similar in their hearts.In front of similar people, that unwillingness to admit defeat was suddenly aroused again.

In fact, during the court session, Machiko quietly noticed lawyer Miyagawa's legs.

I was scolded by Gu Meimen for being bow-legged all day long, so I couldn't help but quietly became concerned about the shape of my legs. Seeing the straight and graceful legs of the female lawyer across the way, I couldn't help but feel envious.

The secret comparison among women, coupled with the unwillingness to admit defeat, can't help but arouse Machiko's fighting spirit.

"Chief judge!" Machiko immediately stood up again, "There is no legal obstacle to apply analogy to the gaps in the civil law. Even many special systems in civil law, such as the bona fide acquisition of ownership clause, can also be applied by analogy to Mortgage rights and pledge rights are obtained in good faith. There is no type of rights based on the so-called special provisions of the law that the lawyer said just now, so the principle of interpretation by analogy cannot be applied.”

"In addition, the fundamental purpose of the establishment of the right of way in adjacent land is to solve the problem of access to pocket land. It is to seek practical benefits and solve practical problems. At present, there is indeed a pocket land problem in this case, which is undeniable."

Machiko took out a portfolio and shook it.

Many photos suddenly slipped out of the portfolio.But I saw that these photos were all about the construction site outside the Aobadai apartment.At the scene in the photo, a ferocious and wide gully cut off three sides of the apartment.Large cranes and drilling rigs were constantly operating at the site, causing waves of dust to fill the sky.Not to mention whether a road can be opened at the construction site, even if it is opened, it is extremely dangerous.

These photos of Machiko were presented to the trial bench, and then he said: "The chief judge. At present, the residents of the community are indeed facing serious difficulties in passing. If things go on like this, it will inevitably be unsustainable. Here, the plaintiff's attorney requests the court to apply the Civil Code's right of passage in neighboring areas by analogy. In this case, the Aobadai Condominium Owners’ Committee is indeed qualified to initiate a right-of-way lawsuit on adjacent land.”

Machiko's voice fell.

All of a sudden, the two sides seemed to be in an extremely entangled situation.

Like a ball of yarn, it gets more and more messy.

When neither of the two sides can really argue against the other, it can only depend on the decision of the judge in the middle.

After a moment of silence, the two female lawyers both looked at the referee on the stage, Judge Jiang Tian.

(End of this chapter)