Immatrikulationsverträge auf dem Prüfstand des Verbrauchervertragsgesetzes
Abstract
The essay discusses a series of decisions of the Japanese Supreme Court concerning the practice of Japanese universities to retain matriculation fees in case of a students´ cancellation of matriculation. In each of the cases the sueing students had matriculated at a university by paying a registration fee and the first rate of the annual education fees but had cancelled the matriculation before the begin of the academic year after they had got a place at another university. The universities refused to pay back the tuition fees because the tuition contract contained a clause allowing the university to retain the fees. The Supreme Court now had to decide whether such clauses were valid and thus allowed the universities to keep the fees.
As far as the registration fees are concerned, in the view of the Supreme Court there is no problem at all with the clauses, because they are estimated as the value equivalent to the accomplishment of the registration procedure. Concerning the education fee rates, on the other hand, the Court considers an incompatibility with the good morals demanded in Art. 90 of the Japanese Civil Code and a violation of the Consumer Contract Law. The Court approves the compatibility with the good morals, however, because the universities have a legitimate interest to bind potential students to the university and to avoid lacks of income because of cancellations and therefore denies an exceeding restraint of the students´ rights. As for the education fees, however, according to the Supreme Court’s interpretation of the Consumer Contract Law regulations these must be refunded in case of a cancellation before the begin of the academic year e.g. April 1st as a rule generally applicable except for some special constellations.
The conclusions of the Supreme Court are of great impact on social life and also give important instructions for the interpretation and future application of the Consumer Contract Law regulations. First, the universities are seen as mercantilists which implies that immatriculation contracts are classified as consumer contracts. Second, the agreements on the retention of tuition fees are regarded as a consolidation of damage into a lump sum or a contractual penalty and so are subject to the regulation of Art. 9 Para. 1 Consumer Contract Law. Third and last, the decisions show that the criteria of Art. 9 Consumer Contract Law are more strict than those of Art. 90 Civil Code and therefore effect the students´ rights being reinforced.
