Die Entwicklungen der japanischen Rechtsprechung und Lehre bezüglich der Haftung des Erwerbers bei Firmenfortführung
The article discusses the issue of a new business owner’s liability if he continues to use the trade name of the business. Until recently, the new owner was liable under Art. 26 of the former Commercial Code. Since the company law reform in 2005 the Japanese law now provides for two different provisions. One is Art. 17 of the revised Commercial Code which applies if a business was assigned between merchants, the other is Art. 22 of the Company Code which applies if a business was assigned between companies.
In the first part the author concentrates on how to interpret the new provisions in light of the scholarly interpretations of Art. 26 of the former Commercial Code and the corresponding case law. In the second part he discusses a leading case by the Japanese Supreme Court which was decided in 2004. The case revolves around the question whether a membership deposit paid to the former owner of a golf club has to be repaid by the new owner if he continues to use the name of the country club. The Supreme Court applied Art. 26 of the former Commercial Code by way of analogy and ordered the new owner to repay the membership deposit. The Supreme Court argued that due to the continued use of the golf club’s name, a member may rely on the new owner also assuming the obligations of the former owner. The author explores the court’s reasoning and discussed various scholarly opinions on the issue of expanding liability to other names and brands besides the trade name of a business.