일본 메이지민법(총칙편: 법률행위총칙 · 의사표시 · 대리)의 입법이유 분석

Abstract

This article contains the full translation of reform motives of the Meiji Civil Code(the general part), which are based on the texts edited by Hironaka Toshio, Minpo syusean (zensanpan) no ryusyo(Yuhikaku, 1987),and adds some comments from the viewpoints of the Korean lawyer,whose legislation has been widely influenced by the European legal tradition via the Japanese legal scholarship. From the review, the author concludes,that discrepancies in opinions among drafting commissioners, sometimes very serious and even fierce, had generally been solved in favor of “practical convenience” rather of academic dogma. In the process reviewing the articles on representatives, actual businessmen were asked to disclose their opinions. This attitude reminds us of the motives of the German Civil Code. And in the legislative procedure, another principle was highlighted that only anything vague should be ruled, which the author thinks could be understood as re-action to the Boissonade's verbose projet;that unilateral acts played a more crucial role, than contracts, in preparing for the articles on so-called legal acts(Rechtsgeschaft). You may find it in the followings: “Though it were handy to follow A's attitude in ruling formation of contracts, if it were convenient to follow B's attitude in ruling other various cases, one could not help accepting this one as a general rule. Now thinking of different declarations of will, we can say that all except contracts could be called as unilateral acts”;and that, at least as far as the articles on legal acts are concerned,none could deny the German influence over Japanese Meiji Civil Code and that Tomii Masaakira(1858-1935), ironically a docteur en droit, was a key person who moulded such an influence. Today, it could be said that the concept of legal act has become immanent in the Japanese legal community.