Analyse of the structure of 'service providing contract', a comparative study of Japanese-French law
| Project/Area Number |
16530050
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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 | Tohoku University |
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Principal Investigator |
KOGAYU Taro Tohoku University, Graduate School of law, professor, 大学院・法学研究科, 教授 (40247200)
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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 |
¥1,600,000 (Direct Cost: ¥1,600,000)
Fiscal Year 2006: ¥400,000 (Direct Cost: ¥400,000)
Fiscal Year 2005: ¥400,000 (Direct Cost: ¥400,000)
Fiscal Year 2004: ¥800,000 (Direct Cost: ¥800,000)
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| Keywords | contract / liability / French law / the style of legal thinking / legal system / service provide / civil law / non-performance of obligation / 思考形式 / 理論 / 専門家 / 職業倫理 / 名誉 / 概念法学 / 意思 / 消費者法 / 医事法 |
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| Research Abstract |
This is a summary of the most important article of this project issued in 2006
1 Art. 415 of the Japanese civil code provides that "If an obligor fails to effect performance in accordance with the tenor and purport of the obligation, the obligee may claim damages ; the same shall apply to cases where performance becomes impossible for any cause for which the obligor is responsible."
On the basis of this article, traditional doctrine finds "fault principle" here, and tells that "responsibility=fault" is the requirement to claim damages for all types of non-performance of obligation. According to this doctrine, "fault" which means, as in the law of tort, lack of duty of care required for reasonable person, justifies the obligor who does not perform his obligation shall be bound to pay damages.
But since the last decade of the 20th century, traditional doctrine has been criticized by a new doctrine. The point of the new doctrine is as follows. Fault principle is appropriate in tort law where
… More
we assume the freedom of act, but not in contract law where an obligee is not free but obliged to perform his duty. Or non-performance of his promise is enough to justify the obligor to be bound for damages. New doctrine says that "liability" lies in non-performance of obligation itself. It categorizes into two types the obligations issued from contract. The first is "obligation de moyen", and the second is "obligation de resultat". In the first type, an obligee is only bound to the exercise of reasonable care. In the second type, an obligee is bound to achieve the result which he has promised except the case where non-performance is due to "force majeure".
The new doctrine is not based on obligation abstracted from contract as conceived by pandectist, but on contract itself, and it finds in the binding nature of contract the reason why the obligor to be bound to pay damages. According to the new doctrine, breach of contract is enough to justify the contractual liability.
2 It seems that the traditional doctrine still dominates the practice, because the new doctrine has some problems.
(1) In the new doctrine, the operation of interpretation of contract has a decisive importance, but some people think that this operation might be arbitrary.
(2) The new doctrine has not yet clarified the relation between liability for breach of contract and tort liability.
(3) The new doctrine has not shown its whole system.
(4) The new doctrine is not clear enough in its policy. We can also doubt whether or not the image of the contract in the new theory is the same as that of the Japanese civil code.
Despite these problems, the new doctrine is charming. Some of the problems will be solved in near future. And it has to be added that the new doctrine has a great advantage to the traditional doctrine, because the new one is consistent with the judge made law in Japan. My opinion is that the new doctrine should be more displayed and explained in the basic textbooks of civil law. Less
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Report
(4 results)
Research Products
(11 results)
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[Journal Article] Case note
Author(s)
KOGAYU Taro
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Journal Title
Minsho-ho zasshi vol134,no2
Pages: 275-281
Description
「研究成果報告書概要(欧文)」より
Related Report
