Das Recht der Allgemeinen Geschäftsbedingungen im Rahmen der japanischen Schuldrechtsreform

Abstract

Standard business conditions are a common phenomenon in Japan as in other legal systems. Differing from the conventional method of concluding a contract, they bring about specific legal problems. While these questions are discussed in the literature as well as in court decisions, neither the Japanese Civil Code nor other legislation contains provisions specifically regulating these questions. However, this will likely change as the law of obligations in the Civil Code is about to undergo a comprehensive reform. Among other items, the interim report finalized in February 2013 by the Legislative Council of the Ministry of Justice also introduces rules on standard business conditions.

This paper aims to analyze and discuss the envisaged regulations proposed by the interim report. In the first section of this paper, the history and characteristics of the Civil Code are briefly described. Then the motives and contents as well as the previous and future course of the reform are explained. The second section illustrates in general the legal problems which the utilization of standard business conditions entails. Subsequently, the third section describes the way these problems are currently dealt with in Japanese case law, legislation, by the administration, and in academia. The fourth section then details the provisions proposed by the Legislative Council based on the interim report. The contents of the proposal as well as criticism and differing opinions within the council and by legal scholars and interest groups are discussed and evaluated. The contribution closes by summarizing and assessing the envisaged regulations and alternative legislative options.