民法716条立法趣旨と参照英判例

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  • ミンポウ 716ジョウ リッポウ シュシ ト サンショウ エイハンレイ
  • A Reinterpretation of the Drafting Process of Japanese Civil Code Section 716

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Section 716 of the Japanese Civil Code, which provides for the liability of the orderer, as is widely known to lawyers, was written for a particular rule of tort. But 20 years after its legislation, it has come to be understood not as a particular but a normal rule of tort. Why? It is necessary to examine the real reason and purposes of its drafting in order to elucidate the changing process of its meanings. In this article, I examine the documents of the drafting process, mainly, Hoten chosakai; Minpou Giji sokkiroku [Supplementary Survey: Stenographic Records on Civil Affairs], to demonstrate why Nobushige Hozumi, one of the chief drafters, placed such emphasis on the terms of section 716.

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