| Project/Area Number |
11620042
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
Civil law
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| Research Institution | KOBE UNIVERSITY |
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Principal Investigator |
KUBOTA Atsumi Kobe University Graduate School of Law, Professor, 大学院・法学研究科, 教授 (60186450)
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| Co-Investigator(Kenkyū-buntansha) |
TEJIMA Yutaka Kobe University Graduate School of Law, Professor, 大学院・法学研究科, 教授 (90197781)
OTSUKA Tadashi Gakushuin University Faculty of Law, Professor, 法学部, 教授 (90143346)
YAMADA Seiich Kobe University Graduate School of Law, Professor, 大学院・法学研究科, 教授 (60134433)
MIZUNO Ken Aoyama Gakuin University Faculty of Law, Associate Professor, 法学部, 助教授 (90250406)
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| Project Period (FY) |
1999 – 2000
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| Project Status |
Completed (Fiscal Year 2000)
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| Budget Amount *help |
¥3,600,000 (Direct Cost: ¥3,600,000)
Fiscal Year 2000: ¥1,100,000 (Direct Cost: ¥1,100,000)
Fiscal Year 1999: ¥2,500,000 (Direct Cost: ¥2,500,000)
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| Keywords | damages / immaterial benefits / self determination right / pure economic loss / non-pecuniary loss / 純粋経済損害 / 慰謝料 / 精神的損害 / 金融取引 |
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| Research Abstract |
We conducted joint research on the issues of the notion of damage and the measure of damages in cases of immaterial benefits had been harmed.
Topics that participants chose are as follows ;
(1) The notion of damage (Prof.Mizuno).
(2) Compensation for shorten the life-prolonging benefit (Prof.Otsuka).
(3) Compensation for breach of patients' self determination right (Prof.Tejima).
(4) Compensation for pure economic loss (Prof.Yamada)
(5) Contents and functions of the right of recovering non-pecuniary loss (Prof.Kubota)
Every participant made reports at the meetings on the topics with analyzing courts cases, scholarly opinions, and comparative law perspectives. Discussions were made mainly over the reporter's analysis and interpretation proposals. Following are very short descriptions of the research outcomes.
Professor Mizuno, from his analysis of court cases, criticized traditional frameworks that the notion of damage should be linked with the moment of occurrence because there was scarce comp
… More
elling reason to think so. He proposed an alternative idea that disadvantage condition of the process in specific categories measured normatively and monetary should be the notion of damage. We could not reach a unified conclusion, but we at least agreed that h is proposal is persuasive because it showed the notion of damage that is not involved in traditional damage notion of the damages for the injury itself or of the damages for the difference of prices.
Professor Otsuka analyzed recent two medical malpractice cases of the Supreme Court.He, not only compared these cases reasons with recent theoretical frameworks such as the theory of life-prolonging benefit, partial or relative causation theory, the theory of probable belief, or French idea of loss of chance doctrine, but also considered the relationship and limits among these theories. He also added the differences of conclusion of the theories.
Professor Tejima analyzed medical malpractice cases that approved recovery of the breach of patients' right of self determination to his/her medical care. He considered from judgment reasons how courts measure damages of breach of informed consent, and pointed out important factors that seem to influence the measurement of damages in these sorts of cases.
Professor Yamada contended that compensation for pure economic loss had not been involved in the legal order of right structure. He proposed from his conclusion of analyzing cases that the state of general property in itself should be seen as the benefit to be estimated as the standard level of property.
Professor Kubota analyzed contents and function of the right of recovering non-pecuniary loss. He analyzed development of court cases on non-pecuniary loss in the German Supreme Court, and pointed out that the problem of expansion of function of non-pecuniary loss is not specific in emotional loss but the problem of the role of compensation law in general. Less
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