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Obligation infringement by third person in the Japanese Civil Law

  • DONG-A LAW REVIEW
  • 2011, (52), pp.569-603
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

HyeonSon, Kim 1

1호서대

Accredited

ABSTRACT

In the case of the obligation is infringed by third person the issue whether the creditor is not able to seek liability against third person is aroused. In regarding this question, early Japanese scholars are subject to the English law who developed academic dogma before the era of the Civil Code enactment affirmed torts which the obligation is infringed by third person. However, shortly under the impact of the German law, the relative point of view that figure out the obligation is relative rights became a majority view. In 1914, ‘non-aggression theory on the right’ were appeared and the affirmative point of view becomes majority view. With the appearance of the ‘illegality theory’ and ‘correlation theory’, those are put down new roots in the academic society as a conventional wisdom and no negative point of view was found. Subsequently, under the influence of German law limited affirmative point of view formed the mainstream for a fairly long time with the critics of the traditional view. Nevertheless, since the conventional majority view was too ideological in the features of the obligation infringement it failed to reflect various legal disputes in the real world. In addition, wish we had the limited affirmative point of view made a conclusion without the sufficient examination about the relativity of obligation, respect of debtor's free will, equality of creditor, principles of free competition, etc. In order to overcome those points at issue, since in the 1980 the inclination that the question shall be answered only with the characteristics of obligation was gradually disappeared. Currently, rather new category that can be expanded the possibility of establishment the obligation infringement are now argued. This article deals with the process of development of obligation infringement by third person, new categorization of obligation infringement by third person, trial of codification of obligation infringement by third person. Through the such examination, it can be easily guess the suggestion and impact from the Japanese legal aspect.

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