Blick aus Japan auf die deutsche Schuldrechtsmodernisierung. Eine Studie zur Rechtsübertragung

Abstract

The currently ongoing modernisation process of the law of obligations in Japan was seen as necessary for several reasons. This article first describes these reasons before describing how the German reform of her law of obligations is viewed by Japanese academics and practitioners. Finally, this evaluation allows an analysis of the relationship between German and Japanese law to be made.

The reasons for the modernisation of the law of obligations are diverse: First, the Japanese Civil Code (JCC) itself, namely the simplicity of its norms, as well as the discrepancies between theory and practice arising from the different influences on the structure, content, and theory of the JCC. These inconsistencies allowed several schools of thought to arise, especially legal realism and comparative law, which supported the modernisation process in their own ways. Of course, the reform activities of the Japanese Ministry of Justice also played a major role in the modernisation process.

From a Japanese point of view, the modernisation of the German law of obligations is significant for the Japanese process in several different ways. On the one hand, German legal institutions like culpa in contrahendo, which were only introduced into Japanese law through the reception of legal theory, can be used as a model for their codification in the JCC. On the other hand, the German reforms can serve as a confirmation of the criticisms made regarding the reception of German legal theory, through which discrepancies arose with some of the provisions of the JCC. One example is the relationship between general rules of defective performance and the rules on warranty. Finally, the German modernisation process can help to adapt the JCC to the new currents of contract law, e.g. in the area of rescission.

In the past, German law had a constant influence on the JCC. Factors on both the German and the Japanese side suggest, however, that this may continue to be true in the future: the universal applicability of German case law, arising from its characteristics on the one hand, and the continued strong interest in the study of foreign law in Japan on the other. The Japanese are however aware of the necessity of adapting to law. This awareness could lead to a new approach in comparative law, which would correspond to the current trend of exploring the typical aspects (law, formed by culture and society) of legal systems.

(The Editors)