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Judgment to pay compensation to Takuma Asano ... Partisan appeal to swamp trial
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The amount of compensation that FIFA ordered the partisans to pay is about nine months.
Japan national team FW Takuma Asano (27) left the Serbian first division powerhouse Partizan in May last year due to the cancellation of the contract.Partisan ... → Continue reading
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Restitution for Damages(Songaibaisho) means that the person who caused the damage to another person compensates the victim for the damage and makes it the same as if there was no damage..
Occurrence of damages and compensation for damages
Damage compensation is largeDamages due to defaultとDamages due to tortIt is divided into two. Under Japanese law, damages due to default areCivil Code Article 415Below, regarding damages based on illegal activities,Civil Code Article 709It is defined below.
Damages include property damages and mental damages.PalimonyIt is also called (complaint, comfort agent)..
Damages due to default
DefaultThe term means that the obligor does not fulfill (repay) the obligation based on the contract. In case of default, the legal effect is:Compulsory performance,Agreement OfReleaseIn addition to the above problems, the problem of damage compensation arises.
If the default of the debt is due to a contract or other cause of the debt and a reason that cannot be attributed to the debtor's blame in light of the common wisdom in transactions, compensation for damages cannot be claimed (Civil Code, Article 415, Paragraph 1). book).The requirement for accountability was an unwritten requirement that was previously recognized by case law, but the revised Civil Code of 2017 stipulated this (enforced on April 2020, 4).However, the content of the reason for the responsibility depends on individual judgment... In addition,Financial debtWith respect to Article 419, paragraph 3, the debtor cannot defend the absence of a cause of blame(See below).
Scope of damages
Normal damage and special damage
The scope of damages is ordinary damages and special damages.
- Normal damage
- Damages that would normally occur due to default of debt (Civil Code Article 416(Section 1)
- Special damage
- Damage caused by special circumstances that the parties should have foreseen the circumstances (Civil Code, Article 416, paragraph 2)
- Amendments to the damages caused by special circumstances in the revised Civil Code of 2017 from "when the parties predicted or were able to predict the circumstances" to "when the parties should have predicted the circumstances" (Enforced April 2020, 4).
- Although it is a "participant", he interprets the case as a debtor... Creditors bear the burden of proving the predictability of special circumstances..
Regarding the scope of damagesCorresponding causal theoryHowever, there are interpretation problems such as the subject of the special damage prediction and the reference time of the prediction... The equivalent causality theory works if there is no provision other than causality to define the scope of compensation, as in the German Civil Code, but Article 416 of the Japanese Civil Code stipulates the restriction criteria itself and There is also criticism that has no special meaning.
In case of late compensation
Regarding the timing of determining the predictability of extraordinary damage caused by delay in performance, there are views based on the performance period (judicial precedents) and views based on the contract time... There are special provisions for financial debt (Civil Code Articles 404 and 419).
In case of compensation
In the case of compensation in lieu of the original benefit, the price of the object is the basis for calculation.. Judicial precedents calculate normal damage based on the price of the object when it fails to perform, and treat price fluctuations after failure to perform as extraordinary damage within a certain range... There is also the view that, like the case of delayed compensation, the interpretation will be based on the standard at the time of contract..
Method of damages compensation
Negligence offset and profit and loss offset
If the creditor has made an error regarding the default of the debt or the occurrence or spread of damages due to this, the court shall consider the fact and determine the liability for damages and the amount thereof (418 article). thisNegligenceThat.
The revised Civil Code of 2017 changed from "Debt default" to "Debt default or damage or damage caused by it" (enforced April 2020, 4).
There is a similar system for damages based on tort, but in the case of negligence offsetting due to default, if a creditor has negligence, it is always settled. Negligence offset may be considered ex officio by the court without the debtor claiming.. However, the fact that the creditor has negligence must be proved by the debtor (Maximum Dec. 43, 12 Minshu Vol. 24, No. 22, page 13).
In the case of damages based on default, if the creditor has a profit that would have been the result of default, such as insurance money, the amount of damage will be determined in consideration of this. thisProfit/loss offsetThat.
Special rules for financial debt
There are special provisions regarding damages due to default of financial obligations.
- In case of default of debt for the purpose of monetary benefit, the amount of damages shall be determined by the statutory interest rate at the time when the debtor was liable for delay. However, if the contracted interest rate exceeds the statutory interest rate, the contracted interest rate (419 article1).
- Creditors do not have to bear the burden of proof of damages (Civil Code Article 4192).
- The debtor cannot escape liability for failure to perform due to force majeure.Civil Code Article 4193).
The parties can agree in advance on the amount of damages in the event of default (420 article1). thisCompensation for damages (scheduled compensation)Say. The plan for the amount of compensation is to set the amount of compensation in advance in consideration of the complexity of the burden of proof of damage.
Article 2017(420) of the Civil Code before Amendment 1 had a second part that stipulated that "the court cannot increase or decrease the amount in this case.".. However, if the planned amount of compensation is excessive,Public order and moralsThe latter part was deleted by the revised Civil Code of 2017 because there is a case that it is invalid due to violent acts contrary to (at April 2020, 4).. It should be noted that even if there is a special covenant for damages in the case, the provision for negligence offset will be applied and the court will be able to take the negligence into account (the maximum judgment April 6, 4).
The planned amount of compensation does not prevent the right to demand performance or the right to terminate the contract (Civil Code Article 4202). In addition, between the partiespenaltyIf is set, the estimated amount of compensation is estimated (Civil Code Article 4203).
If the parties plan to devote non-monetary damages to the damages, the provisions for the amount of damages shall apply mutatis mutandis (Civil Code Article 421).
Subrogation by compensation for damages (substitution for subjugation)
When the obligee receives payment for damages for all of the value of the object or right that is the purpose of the claim, the obligor naturally substitutes the obligor for the object or right (422 article). thisSubrogation by compensation for damages (substitution for subjugation)That.
Right to claim compensation
When the obligor has acquired the right or profit that is the price of the object of the obligatory debt for the same reason that the obligation to fulfill the obligation is obstructed, the obligee shall, in the limit of the amount of damage suffered, It is possible to request the debtor to transfer its right or redeem its profit (Civil Code Article 422-2).
Although there was no provision for the right to claim for compensation, it was recognized in a judicial precedent, and Article 2017-422 of the Civil Code was newly established in the revised Civil Code of 2 (enforced April 2020, 4).
Damages due to tort
TortIn principle, if the above is true, you will be liable for damages caused by intentionally or negligently infringing the rights of others or the interests protected by law (Civil Code Article 709Less than).
Scope of damages
Article 416 of the Civil Code is applied by analogy to the scope of damages based on tort (general theory).
Method of damages compensation
As for damages based on torts, in principle, the amount of damages will be determined in money as in the case of default ((Principles of financial compensation,722 articleItem 1Civil Code Article 417).
Incidentally,LibelIt is also permitted by civil law to take appropriate disposition to restore the original condition (Civil Code Article 723). In addition, depending on the type of tort,Injunction demandMay be recognized.
Calculation of damages
In the case of an accident in which both parties are negligent due to a traffic accident, etc.Fault rateIs a problem.. About the negligence rate of traffic accidentsAccident rate of traffic accidentsSee.
In calculating the amount of damages based on tort, the court sets the amount of damages in consideration of the victim's negligence (722 article). thisNegligenceThat said, there is a similar system for damages based on default, but in the case of negligence offsetting due to tort, it is not required and exemption from liability is not permitted.
Even if it is a hard-to-calculate lost profit (for example, future profits for a minor's road death), the court will use all evidence to make good use of the rules of thumb and good judgment of the judges. And try to calculate the most probable amount as much as possible..
- PalimonyGave to the victimMental distressHowever, it is the money paid as compensation.In the case of tort, you must also compensate for damages other than property (710 article), and is specified in the clear.
- A person who infringes the life of another person shall compensate the victim's parents, spouse, and children for damages even if their property rights are not infringed (711 article). Regarding the right to claim the compensation for relatives, the legal text only mentions the case where the victim's life is infringed, but the precedent is widely applied for the case where the relatives suffer comparable mental distress. Acknowledge the right (up to 33.8.5 Showa). Also, the court case isinheritanceIs also accepted in principle. (Supreme Sho 42.11.1）
Exercise period for claims for damages due to tort
The right to claim damages due to tort will be extinguished by prescription in the following cases:
- When the victim or its legal representative does not exercise for three years from the time when he/she knows the damage and the perpetrator (Civil Code Article 724First stage).However, Article 2017-2020 of the Civil Code was newly established in the revised Civil Code of 4 (enforced on April 1, 724), and the victim or his / her victim or its It has been five years since the legal representative learned of the damages and the perpetrators (Civil Code Article 2-5).
- When 20 years have passed since the time of tort (Civil Code Article 724Second stage)
- Laws governing limited liability
- To protect the shipping industry,ShipThe owners ofTonnageCan be limited to a certain amount depending on (Law on Limitation of Liability of Ship Owners, etc.).
- For air transportationWarsaw ConventionThe same discipline has been made in.
- Exemption laws
- National compensation lawNational liability on
Compensation for damages under the Companies Act
Officers (directors, accounting advisors, corporate auditors, executive officers or accounting auditors) shall be liable to the stock company for damages caused by the failure of their duties (directors, accounting advisors, corporate auditors, executive officers or accounting auditors).Company Law Article 423).
If an officer, etc. has malicious intent or gross negligence in performing his / her duties, the officer, etc. shall be liable for damages caused to a third party.Company Law Article 429).This liability is not a general tort liability, the extinction prescriptionCompany Law Article 167Is considered to be 10 years.
- ^ Encyclopedia Nipponica (Nipponica). “Restitution for Damages". Koto bank. DIGITALIO Co., Ltd.. April 2021, 7Browse.
- ^ a b c d Hiroshi Matsuo 2016, p. 271
- ^ Of the House of Councilors Budget Committee on May 2011, 5Paper TomokoOf the House of CouncilorsFukushima Daiichi Nuclear Power Plant AccidentRemarks about
- ^ Hiroshi Matsuo 2016, p. 274
- ^ Yoichiro Hamabe 2015, p. 67
- ^ a b Yoichiro Hamabe 2015, p. 70
- ^ a b c d Hiroshi Matsuo 2016, p. 272
- ^ a b Hiroshi Matsuo 2016, p. 277
- ^ Hiroshi Matsuo 2016, p. 278
- ^ Yoichiro Hamabe 2015, p. 71
- ^ a b Hiroshi Matsuo 2016, p. 273
- ^ a b Yoichiro Hamabe 2015, p. 72
- ^ Yoichiro Hamabe 2015, p. 69
- ^ "Accident rate of traffic accidents". Sony Assurance. April 2016, 10Browse.
- ^ Showa 36 (e) 413 Supreme Court Third Small Court June 39, 6
- Yasuhiro Hashimoto "From Now Damages Compensation Law" (Fuma Shobo)
- Hiroshi Matsuo "System of Civil Law 6th Edition" Keio University Press, 2016.ISBN 978 – 4766422771.
- Yoichiro Hamabe "Speed Commentary Book that Understands the Amendment of the Civil Code and Credit Law"Toyo Keizai Inc., 2015.ISBN 978 – 4492270578.