Comparative Study Between and Japan Upon the Issues of Law and Pfrcedure

对德日两国在法律和程序问题上进行了比较研究。本文的结论如下：(1)关于民事诉讼立法。(1)从法律渊源的角度重新审视了民事诉讼的立法机制。我们认为，诉讼当事人应在法律发现过程中发挥主动权。因此，我们提出了程序改革，以保证法庭上的法律辩论应该发展到。(B)建议制定新法律的判决具有一定的约束力。这就是说：法院的法官如果决定对手头的案件适用不同的法律，在与制定新法律的案件情况相似的情况下，必须提出充分的理由。(2)关于消费者问题纠纷的解决方式。应设立特别委员会，以保证对少数案件进行有效的补救。消费者团体，…的代表应该有更多的行业和公正的第三方成为该委员会的成员。委员会的运行成本应该独立于行业。(3)关于劳动争议。劳动争议有更多地通过非法律途径解决而不是通过法律途径解决的趋势。可以指出两个相互关联的原因：1)由于诉讼程序中的一些缺陷，法院或劳动委员会需要很长时间才能做出最终补救。2)从法律角度看，劳动关系的许多方面还不明确。从历史和比较法的角度对调解制度的建立和成功进行了分析，认为调解制度的建立和成功不能仅仅用日本人的特点来解释，比如日本人有拒绝索权的倾向。支持调解制度的因素很多。在修改制度之前，需要对每个因素进行审查，这是经过考虑的。关于调解的功能，指出该制度除了填补实体法与现实世界之间的空白外，还可能为今后的立法指明方向。较少

Comparative study between germany and Japan upon the issues of law and procedure have done. We present several conclusion that follows.(1) ON LAW-MAKING IN CIVIL PROCEEDINGS.(A) We reexamined the mechanism of Law-making from the viewpoint of sources of the law. We considered that parties in litigations should take the initiative in law-finding process. We, thus, proposed the procedural reform in order to guarantee that legal arguments in the court room should by developed in to to.(B) It is proposed that the judgment which made a new law has certain binding effect. That is : Judges in the court required to decide upon cases in the similar situation to the case in which the new law was made have to present substantial reasons if they decide to apply different law to the case-at hand.(2) ON THE WAY OF RESOLVING DISPUTES IN CONSUMER PROBLEMS.The Special committee should be established in order to guarantee effective remedy to cases of small number. Consumer Groups, representatives of the … More industry and impartial third parties should be members of the committee. Running cost of the committee should be independent of the industry.(3) ON LABOR DISPUTES.There is a tendency that labor disputes are resolved more through non-legal method rather than legal channel. Two interrelated reasons can be pointed out : 1) It takes a long time before courts or labor commission give final remedies because of some defects in the proceedings. 2) Many aspects of labor relationship are still unclear from the legal standpoint. Thus, legalization of labor relationship should be promoted.(4) ON MEDIATION.Having analyzed mediation from the standpoint of history and comparative law, the establishment and success of the system cannot be explained only by the characteristics of Japanese people, such as the tendency of declining to claim one's rights. There are many factors which supports the system of mediation. Prior to the amendment of the system, examination of each factor, it is considered, is required. As for functions of mediation, it is pointed out that, besides filling a gap between substantive law and remand from a real world, the system may suggest the direction for the law-making in the future. Less