1995 Fiscal Year Final Research Report Summary
Change of Contract functions in Contemporary Japan and Rethinking of Contract Low Doctrine
| Project/Area Number |
05301063
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| Research Category |
Grant-in-Aid for Co-operative Research (A)
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| Allocation Type | Single-year Grants |
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| Research Field |
Fundamental law
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| Research Institution | KYOTO UNIVERSITY |
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Principal Investigator |
TANASE Takao Kyoto University, Low.Professor, 法学部, 教授 (80022424)
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| Co-Investigator(Kenkyū-buntansha) |
KAWAKAMI Shoji Tohoku Univ., Low.Professor, 法学部, 教授 (70152923)
KASHIMURA Shiro Kobe Univ., Low.Professor, 法学部, 教授 (40114433)
HIGUCHI Norio Tokyo Univ., Low.Professor, 法学部, 教授 (30009857)
MATSUURA Yoshiharu Osaka Univ., Low.Professor, 法学部, 教授 (40104830)
KATO Masanobu Nagoya Univ., Low.Professor, 法学部, 教授 (70009819)
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| Project Period (FY) |
1993 – 1995
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| Keywords | Contract / Legal Theory / Agreement |
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| Research Abstract |
With 3 years of research and discussions, we got the following results.
1) The "agreement" which is the core of contract is in fact not formed definitively at the time of contract-formation. Rather, it is defined and redefined by the reading the agreement at the time of resolving the contarc disputes. In that reading, three overriding concerns, namely denial of power, aquirement of knowledge, and maintenance of boundary are noticed.
2) Today, the contract is evaluated by the third parties for its fairness and reformed by them based on their evaluations. This third party interference has its roots in, and found its legitimacy upon the following three concerns. That is, policing the fairness of the bargain, paternalistic overseeing the weak, and strengthening the inter-party problem solving.
3) Comparing the Japanese contract with that of U.S., it is unique in that the a greement is not so much the idiosyncratic concurrences of arbitrary wills of the respective parties as the reflection of the consensus held widely in the society. This equation of the agreement with the consensus leads to the fluidity of the contact/tort boundary in Japan.
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