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Study Of Theory Of Interests Balancing In Japanese Civil Law

Posted on:2009-07-12Degree:DoctorType:Dissertation
Country:ChinaCandidate:L C ZhangFull Text:PDF
GTID:1116360245994122Subject:Legal theory
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The thesis studies theory of interests balancing in Japanese civil law in that China law circle is short of relating study. As the top level of the study of Japanese civil law interpretation in post war, theory of interests balancing can support us a kind of civil law interpretation theory, chich can also support us some experiences to accelerate Chinese civil law interpretation study and nationalize the study of Chinese civil law science.In 1994, Prof. Liang hui xing translated Ichiro Kato's paper on interests balancing and firstly introduced in China. Today the word "interests balancing" has been highly used by Chinese scholars, but existing study has two defects: firstly, it obscures the study between Japanese theory of interests balancing and German interests jurisprudence; secondly, it mistakes Ichiro Kato's theory as the whole Japanese theory of interests balancing and neglects Eiichi Hosino's theory, which in fact is also important in Japanese relating study. Such mistakes are caused by short of research materials, and has not properly understand the concept of "theory of interests balancing". So the thesis focuses on topic of theory of interests balancing and thoroughly study its basis, content, and influence. To realize such goal, the thesis uses a lot of first-hand Japanese materials and analysis on it.The thesis can be divided into four chapters.Chapter 1 "Theoretical basis of interests balancing" surveys on its theoretical basis. The author claims that Japanese theory of interests balancing is the intelligent product of various kind of civil law interpretation science, which aim to fill the gap between civil code and great social changes. So the chapter will discuss three aspects: basis of code, social and knowledge.Traditionally, Japan society is characterized by community relations and classes level, and thus "ethical norms" is used as people's behavior norm. But such factors have been neglected during the process of compiling Japan Civil Code for the intensive political purpose, at the same time, western law transplanted also have some defects. How to solve the conflict between west law and Japanese tradition has not been considered seriously, which has result in such gaps. To fill the gaps, civil law interpretation science developed after second world war. With disintegration of social structures and rise of right conscioness, the gaps have been alleviated in some degree. But with social development, new problems is presented, and cause new gaps between civil code and modern society.To solve the problem, Japanese scholars work hard in intelligence, and theory of interests balancing is such product of the study of civil law interpretation. Izutaro Suehiro, Sakae Wagatuma, Saburo Kurusu, and Takeyosi Kawasima are outstanding scholars on it. Their theory and relating discuss form the theoretical basis of study of interests balancing. The study also influenced by American legal realism and European free movement of law.Chapter 2 is on Various theories of interests balancing. Ichiro Kato and Eiichi Hosino are both outstanding scholars on the study. Their theories are similar in fundamental ideas, but different in concrete operation and philosophical stance. The chapter will discuss Ichiro Kato and Eiichi Hosino's theory in turn, and compare the theories. On the whole, Ichiro Kato's theory claims that all the consideration of law should be excluded in a case, and reach a primary conclusion through substantive balance of interests. Then law basis should add to the conclusion in order to make it more persuasive. Eiichi Hosino's theory claims that interests balancing should be used after literal, logical, and purposive interpretation of law, and interests balancing ultimately determines the conclusion. Chinese scholars always confuse theory of interests balancing with other theory of civil law interpretation. So the author compares Japanese theory of interests balancing with German's, and also with American legal realism, to discuss the basic characters of the theory.Chapter 3 is on Influence of theories of interests balancing. The influence has two aspects: one is on Japanese theory of civil law interpretation, the other on study of civil law.On the former, Japanese law circle's discuss on interests balancing has three stages. The theory was presented in the first stage and focus on such topics as ignorance of formal law, etc. In the second stage, procedural dimension and legal politics were introduced to remedy the defects of the theory. At the third stage, theory of interests balancing was criticized by scholars as Yosio Hrai, and the criticism also extend to the whole postwar theory of civil law interpretation, which have made theory turn to system of law in 1990s.On the later, theory of interests balancing accelerates presence of a kind of research method that have dominated the whole Japanese civil law circle in 1970-1980s. It claims that law research should focus on study of legislator's intention, foreign law, dogmatics, precedence, social basis and functions, and values or justice behind the law, which have great change in Japanese science of civil law and make civil law more easyly access to social life.Contrary to its influence to law circle, theory of interests balancing has limited influence in judicial practice, certainly, it is because of specific social backrounds. But it should noted that such theory still has its influence to Japanese judicial practice, which can embodied in three aspects: firstly, such theory has been introduced into civil procedure; secondly, many relating research products have been applied in judicial practice; thirdly, the method of interests balancing has been used in judicial practice, which has made changes in court decision after its influence.The above three chapters answers what is "theory of interests balancing". To ,make it more clear, in chapter four, the author describes what is theory of interests balancing above all, and its advantages or shortcomings, and how to value Japanese scholar's criticism on it.By present, the theory of interests balancing was valued from perspective of outside, that is, from some theory of civil law interpretation, which was criticized by Eiichi Hosino as not the right value. So the author firstly present a kind of model of legal thinking, as a perspective to evaluate the theory. The author believe that contemporary legal thinking gradually avert from purelypresent-dimension(in ancient Rome time) or past-dimension(in modern time) to whole dimension including past, present and future. The legal thinking should modeled as a comprehensive rational thinking with two stages,which include stage of private discourse and stage of public discourse.On the basis of above discussion, we will realize that: (1)the theory of interests balancing rightly abandons modern system thinking, and adopts topic thinking, but at the same time, it neglects communication aspect of legal thinking, which has make it neglect the division of "context of discovery" and "context of justification" etc. (2)the theory rightly breaks the limitation of "past-dimension" of modern legal thinking, but it also neglects the positive aspect of "past-dimension", and thus neglects constitution of law and its validity, which should be criticized. (3)The rationalization schemes of interests balancing thinking includes legal positivism and theory of interpretation, other schemes as naturalism of law, discourse theory of law, etc, should also be considered.It is an irrefutable fact that theory of interests balancing is a critical important theory of civil law interpretation. It forms a important content of contemporary legal thinking, through pursuit of substantive justice. Its application field lies in stage of private discourse formation and judge's final decision in the whole contemporary legal thinking.
Keywords/Search Tags:Civil interpretation, Interests balancing, Theory of interests balancing, Legal thinking
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