2006 Fiscal Year Final Research Report Summary
Abuse of Bargaining Power in the Contractual Process: Regulation by Private Law
| Project/Area Number |
15530069
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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 | Hokkaido University (2004-2006)
Kyushu University (2003) |
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Principal Investigator |
SONO Hiroo Hokkaido University, Graduate School of Law, Professor, 大学院法学研究科, 教授 (60272936)
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| Project Period (FY) |
2003 – 2006
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| Keywords | Contractual Process / Abuse of Bargaining Power / Abuse of Dominant Position / Competition / Private Ordering / UCC / CISG / UNIDROIT Principles |
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| Research Abstract |
Abuse of bargaining power in the contractual process is abundant. The purpose of this project was to pursue a private law theory in regulating such abuse. The project was conducted on the following three fronts:
1.Disjunctions and Conjunctions of Private Law and Administrative Regulations
Abuse of bargaining power has traditionally been considered to be within the realm of administrative regulations under Japanese law: it has been regulated by the Antimonopoly Law as an unfair trade practice, and enforced by the Fair Trade Commission. Private law, although analysis has been scant, may also play a role in effective regulation of such abuse. This project attempted to fill in the vacuum by studying how and why such private law rules have emerged in the common law tradition. Preliminary focus has been placed on the development of the "pre-existing duty rule".
2.The Tension between Private Ordering and Law
Abuse of bargaining power occurs in the context of private ordering. The general question therefore is when and how the state is allowed to intervene. This project conducted a preliminary study to answer this conundrum. It has profited from recent studies on private ordering and social norms.
3.Comparative and Legal Analysis
To examine the problem in a concrete dispute setting three separate researches have been conducted: (1)Protection of copyright licensees against third parties and/or bankruptcy trustees; (2)the impact of available remedies on the opportunistic behaviors of sellers/buyers in case of non-conformity; and (3)the prevention of expiration of legal limitation periods while disputing parties are resorting to alternative dispute resolution.
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Research Products
(28 results)
