„Wider die öffentliche Ordnung und die guten Sitten“. Eine Annäherung an die japanische Generalklausel aus europäischer Perspektive
The article outlines what kind of contents and circumstances of contracts are against “public order and good morals” according to Japanese contract law (Art. 90 Minpô) while examining the history of reception, the terms, the dogmatic understanding, and selected examples of contracts. From a dogmatic point of view, the historically laid interaction between Art. 90 and Art. 91 Minpô (private autonomy) is still interesting: There is no general rule for “illegality” of a contract in the Japanese civil code as there is in the German or Swiss civil codes (§ 134 BGB, Art. 19 f. OR). Therefore, there are differences in the relation of illegality and immorality. Furthermore, it is controversial whether the violation of “public coercive law” is covered by Art. 90 Minpô or by Art. 91 Minpô. In questions of terms, the definition of “public order” (öffentliche Ordnung) is problematic. From a comparative view, this term and other “orders” such as the “family order” or the “economic order” seem much more important in Japanese law than the term “good morals”. According to Japanese doctrine, though, the terms cannot be distinguished.
One can examine not only legal differences but also cultural differences with selected examples of contracts – such as the prostitution contract or two other related and classical examples of Japanese jurisdiction, gei shôgi keiyaku, the contract of surety with dependants, more precisely with employees at bars, or the surrogate mother contract. Overall in Japan as well as in Germany and Switzerland, one can observe a tendency to restrain the private autonomy in contracts in favor of the idea of justice, and therefore also for the extension of Art. 90 Minpô. Two civil law theories – one by Atsushi Ômura, who has developed a theory based on thoughts about justice, and one by Keizô Yamamoto, who links Art. 90 Minpô with an interpretation according to constitutional rights – offer the necessary theoretical foundations. On the other hand, there is a bias toward neglecting the contractual right of self-determination of adult women when it comes to prostitution or surrogate motherhood.