From the Discussion of the Reform of the Japanese Law of Obligations to the Future Prospects of our Law of Obligations -focused on the Regime of Non-performance of Obligation
Date Issued
2012
Date
2012
Author(s)
Yang, Shu-Yi
Abstract
Although one hundred years have passed since the enactment of the Japanese Civil Code since 1896, most of the Code has never been changed. However, the Japanese civil law professors have established several research groups dedicating to the reformation of the law of Obligation. In response of the proposals presented by those research groups, The Legislative Council of the Japanese Ministry of Justice, after being consulted by its Minister regarding the reformation of the law of obligation, also reached a decision to establish a special Working Group to start the official deliberation on the reformation of Japanese law of Obligation since November, 2009. In May, 2011, an "Interim Report of Points at Issue on the Civil Code (law of obligation) Reform" has been submitted by the Working Group, which marked the beginning of the new page on the history of the Japanese Law of Obligation.
Although we have revised our law of obligation once in 1999, the structure of the law of obligation and the basic idea of "obligation" has never been changed. The Japanese civil Code was originally made by reference to those of Germany and France, but interpreted by the scholars and the court in the same way as Germans before WWII. Thus the practice of the Japanese law of obligation has presented a similar result as that of our law of obligation. Thus, I believe that the comparative research of the above deliberation made by the Japanese will certainly bring us some new perspective regarding the future development of our law of obligation.
It is commonly predicted by the Japanese Academy that the "Basic Reform Policy (Draft Proposals)" submitted by "The Japanese Civil Code (Law of Obligations) Reform Commission" will have significant influence on the revision of the Japanese law of obligation with the official participation of the Ministry of Justice. This thesis will focus its main attention on such Basic Reform Policy. Through a thorough investigation on the design of such Draft Proposals Demand for Performance, Damages caused by Non-performance of an obligation, Cancellation of Contracts and Assumption of Risk, Delay in Acceptance, Principle of Changes in Circumstances, and Defense of Insecurity, we can easily find that the current attempt of the reformation is to make their Civil Code more understandable to the public and to modernize their Civil Code in accordance the main trend shown in the presence of CISG, PICC, and PECL, which I believe can be the potential paragon for our reference in the future, since our country can''t stand along in the age of globalization.
Subjects
The Discussion of the Law of Obligations Reform in Japan
Demand for performance
non-performance of obligation
Assumption of risk
Delay in acceptance
Principle of changes in circumstances
Defense of insecurity
Type
thesis
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