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Comparative and theoretical study on constitutionalizaion of private law and reconstruction of private-law-institutions

私法宪法化与私法制度重构的比较与理论研究

基本信息

批准号：
17530065
负责人：
YAMAMOTO Keizo
金额：
$ 1.82万
依托单位：
Kyoto University
依托单位国家：
日本
项目类别：
Grant-in-Aid for Scientific Research (C)
财政年份：
2005
资助国家：
日本
起止时间：
2005 至 2007
项目状态：
已结题

来源：
https://kaken.nii.ac.jp/grant/KAKENHI-PROJECT-17530065/
关键词：
private law constitution application of fundamental clauses between private persons public policy torts 私人間適用民法不法行為法

项目摘要

The purpose of this study is, referring to the discussion on ‘constitutionalization of private law' in German law, to examine several phases correspondent to constitutionalization of private law in Japanese law, and to inquire into the ability to reconstruct institutions of private law from the point of constitutional view. To be concrete, the following three studies were conducted.First, the discussion on ‘constitutionalization of private law' which had developed especially for these ten years, were investigated. Additionally its importance and basic ideas were clarified.Second, several phases correspondent to ‘constitutionalization of private law' in Japanese law were investigated. Furthermore it was examined what meaning and feature they had, in the point of the relation between constitution and private law. Concretely, some questions were taken up: in the field of contract law, questions about public policy and about regulations regarding consumer contract and financial dealing, in the field of torts law, questions about personal right, especially privacy, defamation, and nuisance.Third, it was examined how institutions of private law are to reconstruct in the point of constitutional view, referring the situation in Germany and Japan. Concretely, several institutions about contract regulations and those about torts were taken up. And the significances of the institutions were clarified.The results of above examinations were made public through several publications.

本研究的目的是参照德国法中关于私法宪法化的讨论，考察日本私法宪法化的几个阶段，并从宪法的角度探讨重构私法制度的能力。具体地说，本文进行了以下三个方面的研究。首先，考察了近十年来特别发展起来的私法宪法化讨论。其次，考察了日本法中与“私法宪法化”相对应的几个阶段。并从宪法与私法的关系角度考察了它们的含义和特征。具体地说，讨论了一些问题：在合同法领域，关于公共政策的问题，关于消费者合同和金融交易的规定的问题，在侵权法领域，关于人身权利的问题，特别是隐私、诽谤和妨害问题。第三，从宪法的角度探讨了私法制度如何重构，并参照德国和日本的情况。具体地说，采取了几个关于合同规定和关于侵权行为的制度。并阐明了这些机构的意义。上述检查结果通过多个出版物公开。