著者

菅 富美枝

出版者

法政大学経済学部学会

雑誌

経済志林 = The Hosei University Economic Review (ISSN:00229741)

巻号頁・発行日

vol.83, no.2, pp.1-41, 2015-11-30

---

During the recent reform of the Civil Code in Japan, there was some discussion about the need for clear provisions regarding the validity of contracts that are signed when one party has more bargaining power than the other. Such contracts quite often seem to be clearly advantageous to the former party. The practices engaged in when concluding such contracts also seem unfair. Although the proposed provision was dropped from the draft in the end, it is still believed that weaker parties, when negotiating a contract, should be protected from exploitation by stronger parties. In this article, the focus will be placed on the logistics of setting aside such contracts. It is concluded that what matters is not whether inequality exists between the parties, but rather whether the inequality can be assumed, on factual grounds, to have been abused. To put it another way, even in a situation where inequality in bargaining power exists, contracts can still survive if proper advice is proved to have been sufficient to eliminate the influence of the stronger party. This will motivate stronger parties to make arrangements for fair advice, and, as a result, weaker parties can be more empowered to enter into just contracts.

著者

菅 富美枝

出版者

法政大学経済学部学会

雑誌

経済志林 (ISSN:00229741)

巻号頁・発行日

vol.80, no.1, pp.33-53, 2012-09

---

In Japan, when a person is given a deputy order by a court (i.e.placed under "guardianship") because they are incapable of handling their financial affairs, that person ceases to have the right to vote (Section 11 (1) 1 of the Japanese Electoral Law). This is so automatic that there are no further opportunities for them to claim that they are capable of voting. In Japanese law, there is no principle of "assumption of capacity" as provided in Section 1 (1) of the Mental Capacity Act in the U.K. The absence of this principle can easily cause "assumption of incapacity" in many different contexts. In addition, the principles "time-specific" and "issue-specific" are not established in Japanese law. This legal environment has meant that such an association (no financial management=no vote) has been left unquestioned by lawyers, politicians and the general public. Currently, the first case in Japanese legal history is being tried. The automatic deprivation of the right to vote is now being questioned from a "human rights" perspective. The real meaning of "democracy", which is to include "everyone" from various backgrounds, is now at issue.

著者

菅 富美枝 SUGA Fumie

出版者

名古屋大学大学院法学研究科

雑誌

名古屋大學法政論集 (ISSN:04395905)

巻号頁・発行日

vol.250, pp.129-153, 2013-07-18

著者

菅 富美枝

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2002, pp.141-149, 2003-10-20 (Released:2008-11-17)

参考文献数

29

著者

菅 富美枝

出版者

名古屋大学大学院法学研究科

雑誌

名古屋大学法政論集 (ISSN:04395905)

巻号頁・発行日

no.250, pp.129-153, 2013-07