Dienstvertrag, Auftrag und Geschäftsbesorgungsvertrag im japanischen Zivilgesetz – unter besonderer Berücksichtigung der Frage des Schadensersatzes und der japanischen Schuldrechtsreform

Abstract

The article deals with employment contracts and mandate contracts as two types of service contracts in Japanese law. While both types of contracts are provided for in the Japanese Civil Code, the provisions on employment contracts play hardly any role in practice anymore. They have mostly been substituted by special labor laws, as for example the Labor Standards Act or the Labor Contract Act. The introduction of special laws became necessary because the Civil Code, which is based on the principle of party autonomy, presupposes parties of equal strength and thus fails to adequately protect employees’ interests. In contrast, the provisions on mandate contracts, including quasi-mandates, are of great practical relevance due to their wide scope of application covering gratuitous and non-gratuitous contracts alike. They thus form the core of Japanese law on service contracts, also including atypical service contracts. Also with regard to the liability of the employer or mandator, respectively, for damage incurred by the service provider, differences between the two types of contracts become evident. In the case of employment contracts, liability has to be based on the general provision on vicarious liability. In order to extend liability beyond this narrow scope, case law has developed a doctrine of duties of care based on good faith. As far as mandate contracts are concerned, however, there is an explicit provision in the Civil Code stipulating a strict liability of the mandator, which is an exception from the general principle of fault-based liability underlying Japanese contract law. It is discussed whether this provision can also be applied to employment contracts. In the context of a planned reform of the law of obligations in the Civil Code, it is currently debated to what extent and how the provisions on employment and mandate contracts are to be revised, and whether a new type of “service contract” as a kind of basic contract should be introduced. With regard to employment contracts, it is particularly the coordination with labor law provisions that is discussed while the debate on mandate contracts focuses on a necessary differentiation between gratuitous and non-gratuitous contracts as well as on replacing the quasi-mandate by a new type of “service contract”.

(The Editors)