Die gewillkürte Vertretungsmacht in Deutschland und Japan

Abstract

The contribution discusses the rules of representation in a German-Japanese comparison of law. Starting point is the growing criticism of the traditional German provisions of §§ 164–181 BGB and specifically in the concept of abstraction as a core element of an authorization as it has been developed by Paul Laband. In Japan, a major reform of the Civil Code came into force on 1 April 2020. Among others, the reform thoroughly amended the rules dealing with representation in Art. 99–117 of the Code. The author argues that the new Japanese rules on representation form a comprehensive system which is able to deal with conflicts of interests that may arise among the principal, the agent, and third parties involved. These rules are tailored to deal with individual cases. The German provisions, by contrast, are still guided by Laband’s concept of a separate and stylized legitimation of authority. The author considers the new Japanese model as superior to recent German reform proposals. He then discusses his thesis with references to three examples for Japan and Germany: authorization in the context of procedural and commercial law as well as with respect to representation as a means of care for the elderly.

(The Editors)