| Project/Area Number |
16530061
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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 | Gakushuin University |
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Principal Investigator |
OKA Takashi Gakushuin University, Faculty of Law, Professor, 法学部, 教授 (10125081)
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| Project Period (FY) |
2004 – 2006
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| Project Status |
Completed (Fiscal Year 2006)
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| Budget Amount *help |
¥3,500,000 (Direct Cost: ¥3,500,000)
Fiscal Year 2006: ¥1,100,000 (Direct Cost: ¥1,100,000)
Fiscal Year 2005: ¥1,000,000 (Direct Cost: ¥1,000,000)
Fiscal Year 2004: ¥1,400,000 (Direct Cost: ¥1,400,000)
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| Keywords | buyer's remedies / defective goods / subsequent completion of performance / reduction of the price / the Korean civil law / Chinese contract law / Taiwanese civil law / east asian private law / 不完全履行責任 / 履行請求権の優越性 / 東アジア普通法 / 国際情報交換 / 中国:韓国 / 法定解除 / 債務者の帰責事由 / 給付利得 / 不可抗力 / 危険負担 / 履行障害 |
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| Research Abstract |
There are many problems about the contract remedies. My study mainly focuses on the buyer's remedies when the seller has delivered a defective goods, one of the most important and heavily debated issue among those on contract remedies. I did comparative law study on the issue of the Japanese civil law, the Chinese contract law, Korean civil law, the amendments of the Korean civil code, the Taiwanese civil law and the German civil code. I was most interested in the relation among several remedies of the buyer, specifically, the relation between the buyer's right to demand the subsequent completion of performance and the right to seek for the reduction of the price.
The German civil code provides that the aggrieved buyer should first demand the subsequent completion of performance by the seller before demanding the reduction of the price. I believe the German position is questionable.
The seller has damaged the reliance of the buyer by furnishing the defective goods. In the situation the buyer has a legitimate concern for discontinuing the relations with the seller. Therefore the buyer should be entitled to immediately demand the seller to reduce the price without seeking for perfect performance by the seller. In other words the aggrieved buyer should choose either to demand the subsequent completion or demand the reduction of the price. The both remedies should be on the same level without any priority between them.
My research reveals that this is the position adopted by the Chinese contract law authorities, the current Korean civil law, and also the revision of the Korean civil code. However, the dominant doctrine of the Taiwanese civil law is unclear.
I argue through the comparative law study that the position adopted by the Chinese civil law doctrines and Korean civil law, current and revised be the right one and that it is the position to be adopted in the revision of the Japanese Civil Code.
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