2013 Fiscal Year Final Research Report
Comparative Study of the Judges' Discretion in the Civil Procedure:Japan and Germany
| Project/Area Number |
23530105
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Multi-year Fund |
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| Section | 一般 |
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| Research Field |
Civil law
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| Research Institution | Osaka City University |
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Principal Investigator |
TAKADA MASAHIRO 大阪市立大学, 法学(政治学)研究科(研究院), 教授 (50171450)
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| Project Period (FY) |
2011 – 2013
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| Keywords | 裁量 / 手続裁量 / 裁判官 / 民事訴訟 / 非訟 / 職権探知 / 釈明権 |
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| Research Abstract |
Whereas the Japanese civil procedure law allows trial judges to exercise a degree of discretion, there must be some limitation for the discretion in order to ensure that it exercised in a due way. This study considered this problem by comparing the discretion of judges in the Japanese civil procedure with that in the German civil procedure. As a result of my consideration, it turned out that it is to be examined in the first place whether the judge is allowed to make a reasonable choice between comparative ones when he or she exercises a discretion under a particular circumstance, that the judge is, even when such choice is allowed, not entirely unlimited in making the choice, but the discretion of the judge is to be limited by higher ends of the law of the civil procedure and other important legal principles, and that the determination by the trial judge should be reviewed by the higher courts.
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