Der Schuldrechtsreform-Entwurf: Eine Bewertung

Abstract

In February 2013, after many years of debate, the Japanese Commission for the Reform of the Law of Obligations presented with its Intermediate Draft a first draft with a proposal for a comprehensive reform of the law of obligations. This draft was intensively discussed in public. Among others, in February 2014, a conference was hosted in Tōkyō by the Institute of Comparative Law in Japan of Chūō University and the German-Japanese Association of Jurists (DJJV). In March 2015, a bill proposing a reform of the law of obligations was introduced to Parliament which is based on the Intermediate Draft, but was subsequently extensively revised. This paper is based on a lecture delivered at that conference, but also takes into account these later revisions, and evaluates the current reform proposal on the whole. For this purpose, it provides an overview on the particular reforms proposed therein and illustrates, by making use of numerous examples if and to which extent the reform proposal realizes its objectives of legislating a more citizen-friendly and modern Civil Code. Regarding its objective to create a citizen-friendly Civil Code, the author draws the conclusion that the Japanese Civil Code would indeed become easier to understand, but first and foremost for the legal professional. This, however, should be welcomed. In respect of the objective to modernize the Civil Code, it is being pointed out that the reform proposal foresaw numerous meaningful and often well-drafted new regulations (e.g. concerning the seller’s warranty, the assignment of receivables, and the regulation of general terms and conditions of business). On the other hand, the author notes that the predominant number of reforms constituted only minor amendments with no substantial effect on the legal situation. Moreover, the author criticizes that the reform proposal did not address some clearly important issues. It was regrettable that the reform proposal neither foresaw the integration of the many special laws concerning in particular consumer protection, small investor protection, and real property tenancy into the Civil Code, nor a better coordination of those special laws with the regulations of the Civil Code. Also fully untouched remained the numerous provisions from administrative- and penal law contained in special laws that also regulated contracts. This combined parallel regulation by special private law and special public law in addition to the regulations in the Civil Code would as a result create an incoherent and overregulated contract law system. Moreover, there were also regulations in the Civil Code that lacked a sufficient coordination. In addition, the author holds that there were also some reforms proposed that fell short of what was actually required. Nonetheless, looking at the reform proposal on the whole, its implementation would be an improvement for Japan. Looking at it from Europe and from the viewpoint of comparative law, however, one would have to say that it contained not much that was new or suitable for serving as a model for future reforms in Europe.