Das Abstraktionsprinzip im japanischen Zivilrecht
This article investigates whether Japanese civil law has an abstraction principle similar to that of German civil law – specifically, whether there is an objective transaction in addition to and independent from the obligatory transaction.
First, the abstraction principle is classified among other principles of transfer of jus in rem, such as the upstream principle of separation or the opposite principle of causality. Then the essay offers insight into the problem’s historical background, namely the reception of German and French civil law during the codification process of the Japanese Civil Code. The different conceptions of the transfer of jus in rem in both legal systems, the French principle of unity and causality, and the German principle of separation and abstraction lead to the question which concept is adopted in the Japanese Civil Code.
To illustrate this, different interpretations of Article 176 CivC, which provides the transfer of jus in rem, will be mentioned. In addition, the parties can stipulate the abstraction or the causality of the objective transaction.
To come to an evaluation of the application of the principle of separation and abstraction on the one hand, or of the principle of unity and causality on the other hand, the author examines the consequences of the principles on the seller’s creditors as well as on the purchaser’s creditors in legal relations. Exactly how the principles affect the protection of third parties in the case of acquisition of property and enforcement or insolvency will be made clear. The rules concerning good faith and Articles 177 and 178 CivC will be incorporated as well.
As a result, it turns out that the presumption of the principle of abstraction means an absolute protection of legal relations, while the presumption of the principle of causality gives priority to the parties’ will. This latter presumption means that legal relations are protected only by the laws concerning good faith and Articles 177 and 178 CivC, thus making it possible to exclude third parties in bad faith from protection. In contrast, under the principle of abstraction, every third party is first automatically protected; restrictions come into play later only to avoid protecting third parties in bad faith.