Shingi seijitsu no gensoku – Das Prinzip von Treu und Glauben im japanischen Schuldrecht
Jahrgang 73 (2009) / Heft 1, S. 78-99 (22)
15,40 € inkl. gesetzl. MwSt.
The Principle of »Good Faith« in the Japanese Law of Obligations With the strong German influence on legislation slowly fading after World War I, the Japanese instead focused on cultural values and social realities of their own. Typical Japanese features like adaptability and centering on group interests show in the principle of »Good Faith«. The original Civil Code did not contain a regulation on the principle, but in the early 1920ies Japanese courts employed it more and more regularly and thus helped to establish a general rule. Simultaneously, legal doctrine tried to provide a more theoretical basis, finally referring to »natural reason« as a source of law. After World War II, the principle was prominently inserted into the Civil Code following the Swiss model, making it a prerequisite for the exercise of all rights and obligations. Nowadays, in Japan as well as in Germany, the dogmatic basis of the »Good Faith« principle is undisputed and widely follows the same lines. Courts in both countries have classified certain groups of application, the principle is used mainly to specify or extend existing obligations, to counter legal misuse or to construe legal actions according to their factual surroundings. In the course of time the principle has changed from a mere means of Japanization of mainly German-originated law to a fundamental regulation to socially control legal obligations. Comparing Japan and Germany, differences show in the way the modern stage was reached, rather than in the final results. It would be unsound to assign the principle of »Good Faith« to either the Japanese or the German side, as it has strong roots in both of them and ultimately rests on common ground – human reason.