Empirical and Comparative Study of Security Interest Transactions in Consumer Credit in Japan

本文对日本消费信贷中的担保权益交易进行了实证和比较研究。我们的目标是查明与这类交易有关的各种法律问题，并概述在德国和欧洲共同体等其他发达国家出现的类似问题的可能解决办法。我们的研究结果如下。首先，债权人对其采取行动的担保人或保证/抵押人显然需要得到保护。这是由于债权人明知其只能持有债务人房地产的次级担保权益而提前提供信贷，或者债权人错误地判断了将获得担保权益的房地产的价值。其次，债权人以债务人银行账户中的存款作为担保权益的情况产生了一个理论问题。我们的研究还包括审查《初步记录法》（KARI TOKI TANPO HO）对担保权益的适用性，如带有没收条款的分期付款土地合同、绝对契约或售后回租，以及规范一揽子抵押贷款到一揽子担保的规定。最后，对德国和欧共体规范消费信贷的法律进行了全面的研究，为我们研究日本消费信贷的立法和政策问题提供了一个有意义的分析框架。

We have conducted an empirical and comparative study of security interest transactions in consumer credit in Japan. Our goal was to identify the various legal problems associated with such transactions, and to overview the possible solutions to similar problems which have arisen in other developed countries such as Germany and European Community.The results of our study are as follows. Firstly, it is evident that the protection of a guarantor or a surety/mortgagor against whom a creditor takes action is required. This is due to the fact that the creditor advances credit in knowledge that it can hold only a subordinate security interest in the debtor's real estate, or that the creditor misjudges the value of the real estate in which security interest is to be acquired. Secondly, a theoretical problem arises in the case where a creditor takes a deposit in the debtor's bank account as the security interest. Our study also included an examination of the applicability of the Preliminary Recording Act (KARI TOKI TANPO HO) to security interests such as the installment land contract with forfeiture clause, absolute deed or sale-leaseback, and the provisions regulating blanket-mortgage to blanket sureties.Finally, comprehensive research into German and the European Community laws regulating consumer credit has provided us with a meaningful analytical framework with which to study legislative and policy issues concerning consumer credit in Japan.