Portal field news

Portal field news

in

🏛 | Prime Minister Kishida instructs to do everything possible to help victims such as malicious business methods


写真 

Prime Minister Kishida instructs to do everything possible to help victims such as malicious business methods

 
If you write the contents roughly
Furthermore, I instructed the relevant ministers to take strict action against religious organizations that deviate from laws and regulations, and to do everything possible to help victims of unlawful acts such as fraudulent business practices.
 

Regarding the issue of the former Unification Church, Prime Minister Kishida has asked the relevant ministers to do all they can to help victims of unlawful acts such as fraudulent business practices. → Continue reading

 TBS NEWS DIG

Digging up, exploring, and discovering news-News site "TBS NEWS DIG" that brings together the collective strengths of XNUMX JNN affiliated stations


Wikipedia related words

If there is no explanation, there is no corresponding item on Wikipedia.

Bad business law

Bad business law(Akutokushoho) is for companies and business ownersImproprietyIProfitTo getSocial beliefThere is a problembusinessCommon name for the method.National Police AgencyThen, "a commercial transaction that is carried out systematically and repeatedly for general consumers, in which illegal or unjust means / methods are incorporated in the commercial law itself".Malicious business lawCalling[1].Problem commercial lawAlso called (Mondaishoho).

類型

Affinity fraud

"Unlisted stock"Investment in overseas business" "Absolutely profitable", etc.[1]..The number of damages reported to consumer service centers in various parts of Japan decreased by 2011 (2013%) from 7539 to 68.0, but the ratio of elderly people (65 years old and over) increased from 68.5% to 70.5%.[1].Consumer Affairs AgencyAccording to the survey up to 2012, the number of life consultations on the Affinity fraud is increasing, which is suspicious.Corporate bondAnd foreign currencies with poor cashability (Iraqi dinar,Sudanese poundThe number of cases of making transactions (such as) has increased sharply.[2].

Appointment Commercial Code

A method of sending consumers to a designated place in the name of receiving a free gift or joining a good-value club, and making a relentless solicitation at that place to make a contract.[3][4]..In some cases, it is a confinement commercial law that does not allow you to return until you sign a contract.[5].. Many young victims from March to May[5]..In 2007, the Tokyo Metropolitan Consumer Affairs Center announced that there are increasing cases of secondary damage such as being contacted again after being enrolled in a club and being paid an admission fee, and the membership fee has not been paid.[6].

Inspection business method

Visiting homes under the guise of "inspecting the house for free", "the pillars are cracked", "TermiteA method to convey information that is contrary to the facts, such as "there is a house" and "the house will collapse as it is", and to make a high-priced contract such as termite extermination and reinforcement work.[7][1]..Consumers can cancel the contract if they are falsely explained or if they are not intentionally told important matters such as price and performance.[8].

List in alphabetical order

Comprehensively post scams, malicious commercial laws, illegal acts, and illegal acts.

A
Patriotic business
Malicious reform
affiliate(→Information productsWhat deals with)
Appointment Commercial Code
Questionnaire business method
House without housing
インターネットOnMouse lesson
Eurian / Picture seller (→Art student scam
Owner business method
Negative options marketing (→Negative options
Push buying
Lending
Bait-and-switch
Thank you business method
Or
Good luck business method
Overseas lottery
Art student scam(Eulian / Art Student)
Buyer
Degree commercial law
Furniture leasing finance
Scammer
Empty rental
Camouflage display
Catch sales
Recruitment Commercial Code
Educational Commercial Law
Cressara problem
Health Commercial Code
Betting ticket forecasting company
In-kind false business method
Wilderness business method
Lover business method
Workshop Commercial Law
Complex business method
Hypnosis commercial law
Rod bamboo business method
Ground raising shop
Shishoho (Qualification Commercial Code
Experimental commercial method
Debt part-time job
Employment Commercial Code
Referral shop
Information products
consumer loan
Information sales
System finance
Men's Record Commercial Law
Newspaper extension
Stealth marketing
Spam mail
Arranger
Power saver
090 Finance
Zero zero property
Seminar Commercial Code --Advertising class sales (close to the Hypnotic Commercial Code)
It was
Experience story business method
Tying business
Ticket finance
Online Shopping
Commercial method one after another
Sold one after another
Dating business method
Inspection business method(Dangerous Commercial Code)
Exhibition Commercial Code
Telephone solicitation sales
Capital (1) Finance
Winning commercial law(Fukubiki Commercial Code, "Actually it was 2nd prize" Commercial Code)
Specific continuous service provision
Drop shipping
I
In-house business law
Secondary solicitation
XNUMX Commercial Code
Negative options(Cash on delivery commercial law / Negative options trading method)
Mouse lesson
Network business
Pension mortgage finance
Chisel
The
Bible business method
Halo effect
optical lineSolicitation
Piggyback business method
Welfare business method
Branding
Paper business method
Circumcision surgery business method
Home party business method
Door-to-door sales
Non-payment of insurance claims
Ponzi scheme
Or
Summary blog
MLM
Multi-purpose business
Unlisted stockPurchase solicitation
Sample Construction Commercial Code
Infinite chain
Free trial commercial law
spam
Monitor Commercial Code
,
Loan shark
Depositary business method(Aquaculture fraud)
Et al.
Affinity fraud
Make Money Fast
Reform scam(Malicious reform
Inspired business
Chain sale transaction
Loco London Gold Trading
Japanese beef business method(Anhui Farm
One-click contract
One cut
A
ESCO business
GNP Commercial Code
MMF (Make Money Fast)
M fund
SF Commercial Code
spam mail

Features

If any one of the following characteristics is applicable, it can be considered as "scam".[Source required].

Those with problems with advertising, solicitation, contract methods, etc.

  • WillOne-sidedly even though there is no matchAgreementThose who insist on the establishment of.
    • Those that take advantage of the flow of contracts and make them purchase extra products (accessories, etc.) that they do not need (accessories, etc.)Bait-and-switch).
  • SolicitationThings that hide their purpose and approach or invite them. ―――― Winning commercial law,Dating business method,Greetings Commercial Codeetc.
  • Items that are sent unilaterally even though you have not applied.
  • Waterworks-Fire department-Power company-NTT-NHKCompanies such asGovernment office・ Those who deceive and approach the employees (staff) of the group.
    • Uniforms and ID cards (employee ID cards, to misrepresent their identitiesBusiness cardEtc.) is also included.
  • The business of a name-only sales office.
  • Those who deceive and approach as if they were a major company (or its affiliated company).
  • False, exaggerated or intentionally misleading vague explanationsAdsetc.
  • Those that advertise or solicit in a definite tone even though the effect or result cannot be determined. ―― "You can lose at least 2kg", "The XX stock will definitely go up", etc.
  • Financial instrumentsな どriskProducts withServicesFor example, those that emphasize only the expected benefits and do not explain the predictable disadvantages or "the occurrence of disadvantages is at your own risk".
  • AgreementThose who do not give sufficient explanation about the contents or give enough time to consider, and press for the early conclusion of the contract.
  • Even if you refuse to solicit, you will be solicited again.
  • Obsessive,scamThose that conclude a contract by means such as.
  • Sales OfficeEtcImprisonmentOr obstructing the move-out to conclude a contract.
  • Those who stay at home and conclude a contract without moving out.
  • They are solicited at times that are inappropriate in terms of social conventions, such as midnight and early morning.
  • Abnormally upliftedpsychologicalThose that conclude a contract in a state. ―――― Hypnosis commercial law(SF Commercial Code) etc.
  • Advertising in annoying ways. ―――― spam・ Sales solicitation by telephone to the office during working hours.
  • Under 18Children-Senior citizens-dementia -Persons with intellectual disabilitiesOr, to have a person who does not fully understand the contract contents, such as an adult without specialized knowledge, conclude a contract (one-sidedly write a contract). --For elderly people and dementia patients who have no judgment住宅 OfRenovation(Renovation) etc.
  • MLM,Multi-purpose business.
  • inspirationA product that arouses consumers' anxiety and sells products with a typical explanation or a pseudo-medical explanation.
  • Forcibly as "winning" in Fukubiki or lottery (in many cases, 2nd place)Mobile phone,Cable broadcasting(Actually, it is also called the "second-ranked commercial law").

Items that have problems with products or services

  • Inferior products and services (Strategy scam, Information Commercial Code,Power saverCommercial law, etc.).
  • Goods and services that are significantly more expensive than their original value (BottariSuch).
  • Those who obtain "qualifications" (usually private qualifications) that have no value in the conventional wisdom.
  • Sakura (decoy)What is there (Dating siteSuch).
  • False quality indications for product raw materials, production areas, expiration dates, etc.

Those that have problems with contract fulfillment or cancellation

  • No contract for goods or servicesFulfillmentThose that do not, or that do only dishonest or incomplete performance.
  • CancellationIt is misunderstood that it cannot be canceled even though it is possible.
  • Accepts cancellation, but unreasonable cancellationFees,penaltyThose that require such things.
  • Cancellation isCall centerAlthough it is stated that it will be accepted at, the call center will only repeatedly play guidance calling for "the phone is busy right now, so wait for a while" and will hardly connect (consumers will give up cancellation in situations where it is difficult to connect).
    • Cancellations can only be accepted by phone, and there is no email or other alternative contact method available.

Items with problems in handling personal information

  • I learned about solicitations and transactionsPersonal InformationTo be leaked or sold for no good reason.
    • Of customer informationRoster(There is no change even if you transfer it free of charge).

Crimes or potential crimes

As a result, there are some that overlap with each of the above items,crimeWhat is.Things that can be criminal due to ignorance or reluctance of the law.

approach

Companies / organizations / incidents

The crimes that a general company committed in "organization"Corporate crimePlease refer to.

Major incidents

As an example of Japan with a large amount of damageAnhui FarmIncident (4330 million yen)[9],Toyota Trading Case(About 2000 billion yen)[9][10],Tenka family meeting(About 1896 billion yen)[11],Nationwide Yaba Logistics(Approximately 1600 billion yen[12], 1500 billion yen[9]),Enten(L & G) Incident (1000 billion yen)[9]),Yamato city administration(About 1100 billion yen)[12], KKC (Economic Revolution Club) Incident (350 billion yen)[9]and so on.

Frequently handled products

Products and services that are often handled by scams.Not all are vicious and illegal, but the heavy use of vague or exaggerated expressions often poses a problem.Basically, the ones that are difficult for ordinary people to understand immediately are selected.

High-priced products

At first glance, it is difficult to understand the original reasonable price, or products whose authenticity cannot be distinguished by appearance are sold at a high price, and an exorbitant profit is obtained.

Life-related products

Sell ​​unnecessary items or ineffective items at a high price, which arouses psychological anxiety such as "bad for health".In many cases, pseudoscience is incorporated.

Other

the term

person

Source

Related item

Administrative agency

system

law

Other

外部 リンク

Tort

Tort(fuhokoi) means that one personrightor act of illegally infringing on profits[1][2].In addition, it is a legal system that obliges the perpetrator to compensate for the damage caused by the victim.

Less than,Civil lawOnly the number of articles is described.

Overview

In civil law, torts areOffice management,Unjust gainLike , it is positioned as a statutory claim arising under the provisions of law.Tort liability isAgreementspecific as responsibilityLegalIt is characterized by the fact that it can occur not only between people who are in a legal relationship, but also between people who are not in a specific legal relationship under certain conditions.[3].

This system occupies a major position in the law of obligations alongside contracts, and is an extremely important legal system both theoretically and practically, and has a great social function.[4][3].

Purpose of the system

The tort system is said to have started with human history, and is said to have functions such as punishment of perpetrators, satisfaction of victims, compensation for damages, restoration of social order, and prevention of antisocial behavior.[3].

Thencivil liabilityCriminal liabilitydifferentiation ofInsurance systemAs a result of the spread of law, the function of the tort system to sanction and punish perpetrators and restore social order has declined, and the modern function of the tort system seems to focus on compensating for damages and deterring future torts. It has become[5][6].

Principle of negligence liability

Old timesGermanic lawIt is said that there was a legal system in which the actor bears responsibility when the result of infringement occurs, such as the causal principle in[7].

After that, along with the establishment of the early civil society, the requirements for the establishment of illegal acts came to be strictly understood, and negligence (subjective foreseeability) was necessary as the possibility of blaming the perpetrators for the establishment of illegal acts. It is understood that資本主義It is said that it fulfilled the function of guaranteeing the free activities of individuals during the rising period.[7][6].

The principle of liability for negligence requires intention or negligence as a requirement for tort, and the system of tort under it functions as a minimum limit to the free activities of individuals. and the principle of liability for negligence remains relevant today as an important legal principle in civil law.[8][9].

But,Industrial revolutionAfter that, companies with advanced scientific equipment appeared under huge capital, and social life became more complicated, such as the spread of automobiles, and tort requirements were eased as an interpretation of the Civil Code. allegedly[10].

In Japan, too, the protection of individual freedom is emphasized, and the civil code maintains the principle of liability for negligence.Special lawIt is said that the position was taken that it should wait for the enactment of[11], In fact,High growth periodDue to the rapid economic development and major changes in social life in Japan, many special laws have been enacted.Non-life insurance-Accident insurance, VariousLiability insurance, the development of public relief systems, etc.[12][6].

General torts and special torts

Under Japanese law, in principle, illegal actsPurposely or Negligenceby someone else'sright・Obligation to compensate for damages in the event of infringement of profits (Civil Code Article 709). thisgeneral tortGood,plaintiffis the defendant's intentional or negligentBurden of proofBearnegligence liabilityis takingOn the other hand, the Civil Code (Civil Code Article 714below) and special laws have changed the principles of general torts, such as the provision of a shift in the burden of proof and the provision of no-fault liability.special tortIs defined[13].

general tort

The requirements for establishing a general tort are as follows (709 article).

  1. Intention or negligence of the perpetrator
  2. Infringement
  3. Occurrence of damage
  4. between the act of infringement and the occurrence of damageCausal relationship
  5. Perpetrator's ability to take responsibility
  6. Illegality

For 1 to 4 above, the plaintiff (victim) is responsible for proving that they "exist", and for 5 and 6, the defendant (perpetrator) is responsible for proving that they "do not exist". (Defendant's Grounds for Defense)[14].

Intentional / negligent

Significance of Intention and Negligence

Intentional means recognizing and accepting the consequences, and negligence means failing to recognize the consequences even though they should have been aware of them.[15][8].

In comparative law, there are many legal systems that distinguish between intentional and negligent torts, but Japanese law does not distinguish between willful and negligent torts. is not large (common theory)[16][8].

However,近時[When?], The concept of negligence is objectified as described below, and it has been pointed out that the nature of negligence is different from that of intentionality, which is a subjective requirement.[17].

In addition, many legislations have been enacted that thoroughly strengthen the obligation to avoid consequences and the duty of care in special laws, and provide for non-fault liability that does not require negligence in the establishment of a tort, or intermediate liability that allows exemption only by proof of the duty of care. It has become so(#Special tort(See)[18][19].

Changes in the concept of negligence

The concept of negligence has changed.In the past, theories understood negligence as a psychological state of carelessness, but since then negligence has come to be understood not as the psychological state of the actor, but as a violation of the duty of conduct, i.[20].and the obligation to act to avoid the damage caused by negligence (Obligation to avoid consequences(predictability) is considered necessary as a premise[21][22][23].Therefore, in today's theory, negligence in tort means neglecting the obligation to avoid the consequences of causing damage even though it was foreseeable.[21].Therefore, if the occurrence of damage is unpredictable, no tort liability will be assumed, and even if it is predictable, if sufficient measures are taken to avoid the occurrence of damage, tort liability will not arise.

negligence criteria

The presence or absence of negligence will be determined by examining the content of cautions that should normally be taken under the circumstances.[23].

In determining negligence, comparing 1. the importance of the interests that are infringed, 2. the probability of the consequences, and 3. the interests that are sacrificed by imposing a duty to act, 1 and 2 are said to be larger. Attempts to standardize it as “negligence” when there ishand formula), but it is not easy to present uniform standards for negligence, and the formulation of judgment standards is an issue for the future.[24].

Rights infringement (illegality)

The concept of illegality

Article 709 of Japanese law stipulates that there has been an infringement of rights as a requirement for the establishment of a tort.However, in other countries, there are laws that recognize tort liability based on the occurrence of damage without citing infringement of rights as a requirement in the first place.[25].

Article 2004 prior to the 709 revision of the Civil Code stipulated that ``A person who intentionally or negligently infringes the rights of others shall be liable for damages arising therefrom.'' There is a history of controversy over its significance. The controversy over the meaning of 'rights'Kumoemon Tochuken Incidentbegins with.this was a famous rōkyoku performerUnemon OfNaniwabushiwas made into a record, but another company sought damages for selling copies of the record without permission.At this time, the Supreme Court ruled that if Naniwabushi is not a copyright under the Copyright Act, even if it is infringed, it cannot be claimed for damages due to tortious acts (Daisen Dai 3rd, 7th, 4th Penal Record). Volume 20, page 1360).The "rights" referred to in Section 709 were considered to be legal rights.

this decision lateruniversity bath incidentis changed byThis incident is called "University Bath".Goodwill(It is also called a long-established store).The original court denied the establishment of tort on the grounds that "goodwill" is not a legal right, but the Supreme Court argued that the "right" in Article 709 is the benefit to which relief should be provided by tort. (Oban Dai 14, 11, 28 Minshu Vol. 4, p. 670).

In the first place, although legislators had a broad understanding of the concept of rights, past judicial precedents made strict judgments on the concept of rights, which resulted in the harmful effect of restricting the establishment of torts.Suekawa Hiroshiargues that the infringement requirement is illegal, andSakae AzumaThe theory of the correlation between the type of infringed profit and the type of infringement should be used to judge illegality.IllegalityIt has come to be a commonly held position that[26].

As described above, judicial precedents and academic theories have come to be interpreted as torts if there is an infringement on the interests that should be protected by law, regardless of whether it is a legal right or not.[27].A broad view of the legal interests of these torts is2004Article 709 was incorporated into the text of the revision of the Civil Code, and the provision of Article XNUMX, ``A person who intentionally or negligently infringes the rights of others...'' was changed to ``Intentionally or negligentlylegally protected interestsA person who infringes the

Illegality and Negligence

As mentioned above, the requirement for negligence has come to be judged based on objective factors (violation of the obligation to avoid consequences based on foreseeability) rather than subjective factors (inattentiveness of the perpetrator, etc.).It has been pointed out that, along with this, there is almost no difference in the contents of the negligence and illegality requirements.

In other words, illegality in judging illegality is a question of <whether the act of the perpetrator that caused the result is evaluated as illegal under the tort law>.Rephrasing this with an emphasis on rights, it can also be expressed as the question of ``whether the rights and interests of the infringed victim should be protected under tort law.''Here, the meaning of "illegal" and "infringement of rights" becomes an issue, but judicial precedents say that "illegal" and "rights" here are not limited to legal rights. There seems to be no objection.Then, even if it is said that it is illegal under the Tort Law, in the Tort Law there is no explicit provision on the types of illegal acts like the Criminal Law, and like the Administrative Law there are provisions on the grounds for administrative acts. (In the Criminal Law, there are clear provisions such as "murder," "injury," "theft," etc.). It is an illegal administrative act), and it is not unambiguously determined to what extent it is illegal under the Tort Act.Ultimately, here, based on the basic principles of tort law, such as fair sharing of damages, relief for victims, and deterrence of unlawful infringement, the point of balance between freedom of action on the part of the perpetrator and the protection of the rights and interests of the victim on the part of the victim is determined. It is understood that the search is expected.Specifically, after comprehensively weighing various factors such as the nature and importance of the infringed interests, the degree of infringement, the position and position of the perpetrator, or the costs necessary to avoid the infringement, the act of the perpetrator is illegal, or whether the infringed rights and interests should be protected under tort law.

On the other hand, if the requirement for negligence is objectified and it is regarded as a violation of the obligation to avoid consequences, the same applies to the judgment.This is because the obligation to avoid consequences in a judgment of negligence is a matter of <whether there was an obligation under the tort law to avoid the infringement that occurred>, but such an obligation under the tort law is not explicitly stated in the penal code or administrative law. This is because it is not regulated and cannot be determined univocally.

With the objectification of the concept of negligence as described above, the relationship between the requirements for negligence and illegality has become a new problem.[28][29].

  • Coexistence theory of illegality and negligence
The doctrine that both illegality and negligence are requirements for tort.It is considered to be the conventionally accepted position.
  • Illegality monism (theory emphasizing illegality)
A theory that considers negligence to be nothing but a violation of the obligation to avoid consequences, and unifies it as illegality as a requirement for illegal acts.There is criticism against this theory that it is difficult to make the concept of illegality, which is originally unique to German law, play a major role in the interpretation of the Japanese Civil Code, which does not even exist in the regulations.[30].
  • emphasis on negligence
The theory that, as long as the target of illegal acts has been expanded to include legally protected interests, the theory of illegality has finished its role, and negligence is the only requirement for illegal acts.

Occurrence of damage

As long as the content of tort liability is liability for damages, the occurrence of damage is a requirement for the establishment of tort.[31].The plaintiff has the burden of proof regarding the occurrence of damages.[32].

There is controversy over what constitutes damage, and can be broadly divided intodifference theorytheory of damagesThere are two positions ofThe former considers the difference (α - β) between the victim's current financial status (β) and the victim's financial status (α) if there were no perpetrators. In contrast to the latter, the difference is that the fact itself that occurred (for example, the fact of the victim's death itself) is regarded as "damage."

In short, the theory of difference is a position that tries to grasp the damage in monetary terms, but from the point that tort liability is centered on monetary damages, this is an extremely straightforward position (how much the perpetrator will be compensated? It would be straightforward to decide based on how much extra expenses the victim was forced to make due to the perpetrating act), and it seems that the damage can be clearly determined by putting everything in monetary terms.

However, the general view is that even in cases where it is difficult to say that there is monetary damage, such as mental pain, compensation (claim for compensation) is permitted, but according to the theory of difference, the rationale for this is not necessarily clear. not.In addition, if the victim dies, future salary income (α) is also calculated as one item of damage (α - β; although there should have been α income, it was reduced to β due to the perpetrator's actions). treasure.Lost profitcalled).However, future income, etc. (α) is nothing more than a hypothetical state of property, so if it is based on the differential amount theory, it is difficult to determine how much profit is lost due to the offending act, and the causal relationship between the offending act and the damage. is not easy to define.

In order to overcome these difficulties, the damage fact theory, that is, the theory that the fact of occurrence itself should be regarded as "damage" has emerged.According to this position, it can be understood without difficulty to regard mental suffering as "damage."In addition, since the calculation of lost profits is nothing more than a monetary evaluation of damages (for example, the fact that the victim died), the existence of a causal relationship between the perpetrators and the lost profits, which was an issue in the differential amount theory. is theoretically no longer a problem.

However, even from this standpoint, as long as tort liability is centered on monetary compensation for damages, the amount of damages must be determined when determining the amount of compensation, and re-evaluation of damages in terms of money should be avoided. I can't pass.Then, in order to calculate a specific amount, in the end, just as in the case of the difference theory, we have no choice but to define the extent to which we should assess the lost profits. It is questionable whether or not it has been overcome.

Of the above two theories, the difference theory is the traditional understanding, and it is said that court precedents basically adopt this position.

However, in order to prevent discrepancies in the approved amount for each case, the court prepares something like a market price chart according to the case.In determining the amount of damages, it seems that the amount is adjusted using damage items such as compensation after referring to the same table.From this point of view, it can be said that actual judicial practices are operated in a manner similar to the fact theory of damages.

Causal relationship

Since a tort imposes liability for damage on the perpetrator, it is an essential requirement that there be a causal relationship between the damage caused and the act of the perpetrator.[33].The plaintiff has the burden of proof regarding the causal relationship between the defendant's actions and the occurrence of the damage.[32].

The relationship of “if there is no this” (factual causation) alone can be found to be infinitely related.In order to limit it to the extent deemed appropriate to prevent this, it is generally accepted that the damage would not have occurred if the action had not occurred, and such damage would normally occur if such an action were to occur. A relationship that is recognized as beingConsiderable causalityThe concept of (tort) is used.

In addition, even in criminal lawConsiderable causalityThis concept is used, but it should be noted that it is not necessarily the same as that under tort law.It can be said that both are based on the same intention in that they try to limit the consequences to be attributed to the actors to a considerable extent by limiting the causal relationships that could spread indefinitely.However, as to the specific cases in which it is recognized, both under tort law and criminal law, the scope varies slightly depending on the position to rely on.

Accountability

In order for a tort to be established, the actor must have the ability to take responsibility (712 article-713 articlereference).Liability is the defendant's defense (defendant bears the burden of proof)[34].

Regarding the reason why accountability is necessary for the establishment of a tort, according to the traditional understanding, an actor must be blameable in order to be held responsible for a tort.Principle of negligence liabilityHowever, in recent years, as mentioned above, the academic theory objectively states that the requirements for negligence are not the negligence of the perpetrator, but a violation of the obligation to avoid consequences based on foreseeability. In line with this, it is being understood that responsibility is also based on policy demands for personal protection.[35].Many foreign countries are enacting laws that limit the scope of persons who are incapable of responsibility.[36].

If the incapacitated person does not take responsibility, the liability of the person responsible for supervision becomes an issue (714 article).

  • Minor
If a minor causes damage to another person and does not have the intelligence to take responsibility for his/her own actions, he/she shall not be held liable for compensation for such actions (712 article).
  • A person who lacks the ability to take responsibility due to a mental disorder
A person who inflicts damage on another person while in a state of being mentally disabled and incapable of accepting responsibility for his or her actions shall not be held liable for compensation.However, if he intentionally or negligently causes such a situation temporarily, he must be liable for damages (713 article).
  • Responsibilities of supervisors
In cases where a person who has caused damage to another person while in a state of being incapable of taking responsibility for his or her own actions due to a minor or a mental disability does not assume responsibility, supervise the person who is incapable of responsibility. A person who bears a statutory duty shall be liable for damages caused to a third party by the incapacitated person (714 articleSection 1 text).However, liability is exempted if the person responsible for supervision has not neglected its obligations, or if damage would have occurred even if it had not neglected its obligations (714 article1 proviso).Therefore, the nature of this responsibility is intermediate responsibility.[37][36].
A person who supervises an incapacitated person on behalf of a person obliged to supervise shall bear the same responsibility as the person obliged to supervise (714 article2).

The reason for illegal denial

A tort does not exist where there are grounds to prevent illegality.Grounds for prohibiting illegality include self-defense and emergency evacuation.In addition, there is also a theory that it is not constituted as a ground for prohibiting illegality, but as a ground for prohibiting the establishment of an illegal act together with the ability to be responsible.[14].

  • Legitimate defense
Under civil law, justifiable defense means to inevitably commit a harmful act in order to defend one's own or a third party's rights or legally protected interests against another person's unlawful act. Exemption from liability for damages caused by acts.However, this provision does not prevent the victim from claiming damages from the tortfeasor (720 article1).
  • Emergency evacuation
Under the civil law, emergency evacuation is damage to another person's property in order to avoid imminent danger arising from it, and is exempt from liability for damages due to illegal acts, just as in the case of self-defense (720 article2).
  • Justice
It is said that an act by a legitimate business does not constitute an illegal act (common theory), arrest of a crime committed red-handed (Article 213 of the Code of Criminal Procedure), industrial action (Article 8 of the Trade Union Law), exercise of the right of disciplinary action by a person with parental authority within a reasonable range (822 article), medical procedures, and actions between opposing players during a sporting event.[38][39][40][41].
  • Victim consent
In principle, a tort does not occur if there is the consent of the victim, but there is no social validity.Public order and moralsAn illegal act is established if it is against the law (common theory)[38][42][40][43].
  • Self-help
Self-help is exceptionally illegal[44][42][45].

special tort

The general tort principle has been amended in the Civil Code (Article 714 et seq.) and special lawsspecial tortIs defined[13].

Special tort under civil law

special law tort

tort effect

The effect of both general torts and special torts is, in principle, compensation for damages.[13].

Principles of financial compensation

Compensation for damages is, in principle, monetary compensation unless otherwise indicated (principle of monetary compensation,722 articleItem 1417 article).Specific remedies such as restitution are limited to cases of defamation (723 article), etc. are exceptionally accepted.

Although there are some laws, such as the German Civil Code, in which restoration to the original state is the principle, it is said that there are many cases in which monetary compensation is ultimately used.[46][47].

for compensation for damagesCompensation for property damageCompensation for emotional damageThere is (consolation money), and the former has positive damage (active damage) and passive damage (negative damage, lost profit).[48][49].However, strictly speaking, the Civil Code recognizes compensation not only for mental damage but also for non-property damage (711 article), even in the case of corporations where mental damage cannot be considered, compensation for damages is recognized if there is damage to honor or credibility (Supreme Judgment, Jan. 39, 1, Minshu, Vol. 28, No. 18, p. 1).[50][51][52].

claimant for damages

  • natural person/corporation
Natural persons and corporations are naturally claimants for damages[53][54].
  • Incapacitated associations and foundations
An association or foundation without legal capacity is also a claimant for damages (Article 29 of the Code of Civil Procedure)[53].
  • Fetus
Fetuses are also entitled to claim damages (721 article).
  • Compensation for damages to close relatives (711 article

Scope of damages and calculation of compensation amount

Scope of damages

416 articleの規定は不法行為にも類推適用される(通説・判例。判例として大判大15・5・22民集5巻386頁、最判昭48・6・7民集27巻6号681頁)[55].

Calculation of damages

  • Active damage
    Active damages refer to expenses that were actually incurred in an active manner, and include hospitalization costs, medical treatment costs, attendant costs, visitation costs, tombstone construction costs, Buddhist altar purchase costs, attorney fees, and replacement costs. considered to be active damage within[48][56][57].
  • negative damage
    Negative damages are the profits that would have been obtained had the tort not been committed, and are also called lost profits in the sense of profits that could have been obtained or profits that were lost.[48][58][59].
  • Palimony
    Compensation is compensation for mental damage such as life, body, liberty, and honor.[51].Unlike the case of property damage, the calculation of non-property damage can only be done at discretion, but in practice, an approximate standard amount is formed for the amount of compensation.[50][60].

Adjustment of damages

  • Profit/loss offset
    • If the victim obtains a certain amount of profit (insurance money, etc.) due to illegal acts, the amount of compensation for damages will be reduced.[61].
  • Negligence
    • Even if negligence is recognized on the victim's side in the occurrence of a tort, the amount of damages will be reduced.[61].However, in the case of liability for default, the court must always reflect this in the calculation of the acceptable amount (418 article), even if negligence is recognized on the part of the victim in terms of tort liability, the court may accept the full amount of damage without reflecting it in the calculation of the amount of compensation (722 article2).
    • In terms of tort liability, this is a provision to the effect of allowing the courts to have wider discretion from the standpoint of relieving victims, and can be said to be one of the major differences from liability for default.
    • In the case of a minor, in order to carry out compensation for fault,AccountabilitywithoutReasoning ability(Maximum 39/6/24 Minshu Vol. 18 No. 5 p.854)[62].

Period for exercising the right to claim damages

Prescription period

Claims for damages resulting from torts shall be extinguished by prescription in the following cases (Article 724 of the Civil Code).

  1. When the victim or his/her legal representative does not exercise it for three years from the time when he or she became aware of the damage and the perpetrator (item 3)
    • Regarding the time when the perpetrator was known, it is understood to mean ``when the perpetrator was known to the extent possible under circumstances in which it was practically possible to claim compensation for the perpetrator'' (Supreme Decision, November 48. Month 11, Minshu Vol. 16, No. 27, p. 10).
    • As a special provision, the law to partially revise the Civil Code (Law No. 2020 of 2), which will be enforced from April 4, 1 (Reiwa 29), provides for the right to claim damages due to infringement of human life or body. The extinctive prescription period has been extended to 44 years from the time when the damage and perpetrator are known (when the right can be exercised) (Article 5-724 of the Civil Code)[63].
  2. When 20 years have passed since the time of the illegal act (item 2)
    • Regarding the period of 20 years, the case law isExclusion periodHowever, the law to partially revise the Civil Code (Law No. 29 of 44) clearly states that it is a statute of limitations.[64].
    • The starting point for calculating the exclusion period is ``the time of the tortious act,'' but according to the precedents in the second half of Article 724 of the former Civil Code, when a person's health is damaged due to substances that accumulate in the body, a certain incubation period is set. There is a judicial precedent stating that when damage occurs after a considerable period of time has passed since the infringing act, such as a disease in which symptoms appear after the lapse ofSupreme Court July 18, 6 Minshu 16, No. 60, page 5).

Purpose of revision

Article 724 of the Civil Code prior to the revision stated, ``The right to claim compensation for damages resulting from an unlawful act shall be extinguished by prescription if the victim or his/her legal representative does not exercise it for three years from the time when the victim or his/her legal representative became aware of the damage and the perpetrator. The same shall apply even when twenty years have passed since the time.”However, this provision had the following problems.

  • According to the first part of Article 724 of the Civil Code, if the victim or his/her legal representative does not exercise it for three years from the time when he or she became aware of the damage and the perpetrator, the right to claim damages shall be extinguished by the statute of limitations. However, in terms of legislative theory, three years is considered too short in modern times and is problematic from the standpoint of relief for victims, and the statute of limitations is calculated. Efforts have been made to interpret the law, such as delaying points[65][66][67].The Act for Partial Revision of the Civil Code (Act No. 29 of 44) established special provisions to extend the statute of limitations for claims for damages due to infringement of life or body.[63].
  • Regarding the second part of Civil Code 724, “XNUMX years from the time of the tort,” there is a judicial precedent.Exclusion period(Supreme Decision, December 12, 21, Minshu, Vol. 43, No. 12, p. 2209).However, it would be inconvenient if 20 years had passed without the victim's heir knowing that the victim had died, so the law to revise a part of the Civil Code (Law No. 29 No.) clearly states that the 44-year period is not a disqualification period but a prescription period.[64].

Relationship with default liability

an act is tort liabilityDefaultIf both requirements for establishment of liability are met, the problem of competing claims arises.In this case, there is a competing claim theory that the parties are able to exercise either claim, a competing legal provision theory that one of the claims takes precedence, and the requirements and effects are unified by adjusting the norms of the two systems. Although there are conflicting views such as the norm integration theory that it is integrated with the right to claim, the majority theory and judicial precedents take the theory of competing claims, and the victim can pursue tort liability against the perpetrator, or default liability. It is also possible to pursue (for details,Litigation(See)[68].

不法行為に基づく損害賠償請求権が消滅時効にかかっても、債務不履行に基づく損害賠償請求権が消滅時効にかかっていなければ債務不履行責任が認められうる(最判昭50・2・25民集29巻2号143頁)。ただし、民法の一部を改正する法律(平成29年法律第44号)により、人の生命又は身体の侵害による損害賠償請求権の長期の時効期間は、不法行為に基づく損害賠償請求権が不法行為の時(権利を行使することができる時)から20年(民法724条)、債務不履行に基づく損害賠償請求権も権利を行使することができる時から20年(民法167条)で同じになっている[63].

footnote

[How to use footnotes]

Source

  1. ^ Suekawa HiroshiInfringement Theory, 2nd edition, 304 pages (Nippon Hyoronsha, 1949)
  2. ^ Akio MorishimaTort Law Lecture, 1 page (Yuhikaku, 1987)
  3. ^ a b c Sakae Wagatsuma, Tohru Ariizumi, Ken Kawai, "Civil Code 2 Credit Law 2nd Edition" Keiso Shobo, April 2005, p. 4
  4. ^ Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, p. 2
  5. ^ Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, pp. 2-323
  6. ^ a b c Sakae Wagatsuma, Tohru Ariizumi, Ken Kawai, "Civil Code 2 Credit Law 2nd Edition" Keiso Shobo, April 2005, p. 4
  7. ^ a b Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, p. 2
  8. ^ a b c Ken Kawai, "Introduction to Civil Law 4 Revised Edition of Claims," ​​Yuhikaku Publishing, December 2010, p. 12
  9. ^ Sakae Wagatsuma, Tohru Ariizumi, Ken Kawai, "Civil Code 2 Credit Law 2nd Edition" Keiso Shobo, April 2005, p. 4
  10. ^ Sakae Wagatsuma, Toru Ariizumi, Ken Kawai, Civil Code 2, Law of Obligations, 2nd Edition, Keiso Shobo, April 2005, pp.4-9, pp.11
  11. ^ Masanobu Kato, New Civil Code Comprehension V: Administrative Management, Unjust Enrichment, Unlawful Acts, 2nd edition, 217 pages (Yuhikaku, 2005)
  12. ^ Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, pp. 2-324
  13. ^ a b c Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, p. 2
  14. ^ a b Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, p. 2
  15. ^ Takashi Uchida, "Civil Law II, 3rd Edition: Specifics of Obligations," University of Tokyo Press, February 2011, pp.2-340
  16. ^ Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, p. 2
  17. ^ Takashi Uchida, "Civil Law II, 3rd Edition: Specifics of Obligations," University of Tokyo Press, February 2011, pp.2-335
  18. ^ Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, p. 2
  19. ^ Ken Kawai, "Introduction to Civil Law 4 Revised Edition of Claims," ​​Yuhikaku Publishing, December 2010, p. 12
  20. ^ Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, p. 2
  21. ^ a b Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, p. 2
  22. ^ Ken Kawai, "Introduction to Civil Law 4 Revised Edition of Claims," ​​Yuhikaku Publishing, December 2010, p. 12
  23. ^ a b Toshiyuki Oshima, Masaaki Shimomura, Hiroyuki Kubo, Hiroyuki Aono, "Pre-mail Civil Code 4 2nd Edition" Law Culture Company <α Books>, March 2003, p. 3
  24. ^ Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, pp. 2-342
  25. ^ Ken Kawai, "Introduction to Civil Law 4 Revised Edition of Claims," ​​Yuhikaku Publishing, December 2010, p. 12
  26. ^ Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, pp. 2-358
  27. ^ Toshiyuki Oshima, Masaaki Shimomura, Hiroyuki Kubo, Hiroyuki Aono, "Pre-mail Civil Code 4 2nd Edition" Law Culture Company <α Books>, March 2003, p. 3
  28. ^ Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, pp. 2-360
  29. ^ Ken Kawai, "Introduction to Civil Law 4 Revised Edition of Claims," ​​Yuhikaku Publishing, December 2010, p. 12
  30. ^ Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, p. 2
  31. ^ Toshiyuki Oshima, Masaaki Shimomura, Hiroyuki Kubo, Hiroyuki Aono, "Pre-mail Civil Code 4 2nd Edition" Law Culture Company <α Books>, March 2003, p. 3
  32. ^ a b Ken Kawai, "Introduction to Civil Law 4 Revised Edition of Claims," ​​Yuhikaku Publishing, December 2010, p. 12
  33. ^ Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, p. 2
  34. ^ Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, p. 2
  35. ^ Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, p. 2
  36. ^ a b Ken Kawai, "Introduction to Civil Law 4 Revised Edition of Claims," ​​Yuhikaku Publishing, December 2010, p. 12
  37. ^ Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, p. 2
  38. ^ a b Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, p. 2
  39. ^ Ken Kawai, "Introduction to Civil Law 4 Revised Edition of Claims", Yuhikaku Publishing, December 2010, pp. 12-436
  40. ^ a b Toshiyuki Oshima, Masaaki Shimomura, Hiroyuki Kubo, Hiroyuki Aono, "Pre-mail Civil Code 4 2nd Edition" Law Culture Company <α Books>, March 2003, p. 3
  41. ^ Sakae Wagatsuma, Tohru Ariizumi, Ken Kawai, "Civil Code 2 Credit Law 2nd Edition" Keiso Shobo, April 2005, pp. 4-452
  42. ^ a b Ken Kawai, "Introduction to Civil Law 4 Revised Edition of Claims," ​​Yuhikaku Publishing, December 2010, p. 12
  43. ^ Sakae Wagatsuma, Tohru Ariizumi, Ken Kawai, "Civil Code 2 Credit Law 2nd Edition" Keiso Shobo, April 2005, p. 4
  44. ^ Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, p. 2
  45. ^ Toshiyuki Oshima, Masaaki Shimomura, Hiroyuki Kubo, Hiroyuki Aono, "Pre-mail Civil Code 4 2nd Edition" Law Culture Company <α Books>, March 2003, p. 3
  46. ^ Ken Kawai, "Introduction to Civil Law 4 Revised Edition of Claims," ​​Yuhikaku Publishing, December 2010, p. 12
  47. ^ Sakae Wagatsuma, Tohru Ariizumi, Ken Kawai, "Civil Code 2 Credit Law 2nd Edition" Keiso Shobo, April 2005, p. 4
  48. ^ a b c Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, p. 2
  49. ^ Ken Kawai, "Introduction to Civil Law 4 Revised Edition of Claims", Yuhikaku Publishing, December 2010, pp. 12-501
  50. ^ a b Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, pp. 2-425
  51. ^ a b Ken Kawai, "Introduction to Civil Law 4 Revised Edition of Claims," ​​Yuhikaku Publishing, December 2010, p. 12
  52. ^ Toshiyuki Oshima, Masaaki Shimomura, Hiroyuki Kubo, Hiroyuki Aono, "Pre-mail Civil Code 4 2nd Edition" Law Culture Company <α Books>, March 2003, pp. 3-209
  53. ^ a b Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, p. 2
  54. ^ Toshiyuki Oshima, Masaaki Shimomura, Hiroyuki Kubo, Hiroyuki Aono, "Pre-mail Civil Code 4 2nd Edition" Law Culture Company <α Books>, March 2003, p. 3
  55. ^ Ken Kawai, "Introduction to Civil Law 4 Revised Edition of Claims," ​​Yuhikaku Publishing, December 2010, p. 12
  56. ^ Ken Kawai, "Introduction to Civil Law 4 Revised Edition of Claims", Yuhikaku Publishing, December 2010, pp. 12-501
  57. ^ Sakae Wagatsuma, Tohru Ariizumi, Ken Kawai, "Civil Code 2 Credit Law 2nd Edition" Keiso Shobo, April 2005, p. 4
  58. ^ Ken Kawai, "Introduction to Civil Law 4 Revised Edition of Claims," ​​Yuhikaku Publishing, December 2010, p. 12
  59. ^ Sakae Wagatsuma, Tohru Ariizumi, Ken Kawai, "Civil Code 2 Credit Law 2nd Edition" Keiso Shobo, April 2005, p. 4
  60. ^ Ken Kawai, "Introduction to Civil Law 4 Revised Edition of Claims," ​​Yuhikaku Publishing, December 2010, p. 12
  61. ^ a b Toshiyuki Oshima, Masaaki Shimomura, Hiroyuki Kubo, Hiroyuki Aono, "Pre-mail Civil Code 4 2nd Edition" Law Culture Company <α Books>, March 2003, p. 3
  62. ^ Toshiyuki Oshima, Masaaki Shimomura, Hiroyuki Kubo, Hiroyuki Aono, "Pre-mail Civil Code 4 2nd Edition" Law Culture Company <α Books>, March 2003, p. 3
  63. ^ a b c "Right to claim damages". Ministry of Justice. April 2019, 7Browse.
  64. ^ a b "Review of extinction prescription". Ministry of Justice. April 2019, 7Browse.
  65. ^ Ken Kawai, "Introduction to Civil Law 4 Revised Edition of Claims," ​​Yuhikaku Publishing, December 2010, p. 12
  66. ^ Toshiyuki Oshima, Masaaki Shimomura, Hiroyuki Kubo, Hiroyuki Aono, "Pre-mail Civil Code 4 2nd Edition" Law Culture Company <α Books>, March 2003, p. 3
  67. ^ Sakae Wagatsuma, Tohru Ariizumi, Ken Kawai, "Civil Code 2 Credit Law 2nd Edition" Keiso Shobo, April 2005, p. 4
  68. ^ Takashi Uchida, "Civil Code II, 3rd Edition, Receivables", University of Tokyo Press, February 2011, p. 2

Related item


 

Back to Top
Fermer