著者

森 勇斗

出版者

一橋大学大学院法学研究科

雑誌

一橋法学 (ISSN:13470388)

巻号頁・発行日

vol.20, no.1, pp.409-447, 2021-03-10

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In Japan, the Civil Code has been amended. Some articles, however, have lost their theological foundation; the law of mistake, Art. 95 JCC is one of them. Therefore, this paper aims to find such theological foundation from how the law has risk allocation of error(mistake)in Japan; by comparing some legal systems, this paper tries to reposition Japanese law between some approaches to the law of mistake(error). This paper considers three approaches to the law of error(mistake): the German BGB and French CC as examples of traditional civil law(error approach*), English law as a example of traditional common law(mistake approach*), and South African law, Scots law and the Netherlands BW as examples of the "Mixed Legal System"(error-mistakes approach*). I believe, such a method enables a fictional "control experiment" in legal science. Through this approach, finally, I attempt to clarify the structure of JCC's law of mistake or error. *These classifications are based on my article "Reform and Revision of the Law of Error(Mistake)and the Codification of Innocent Misrepresentation in Japanese Civil Code(1)" Hitotsubashi Journal of Social Science Vol. 43(2-3-4), pp. 1-14 and,(2) Hitotsubashi Journal of Social Science Vol. 44(1), pp. 1-16.