The Inner System of Tort Law and the Legislation on the Flexible System

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  • 損害賠償法の内的体系と動的体系論による立法
  • ソンガイ　バイショウ　ホウ　ノ　ナイテキ　タイケイ　ト　ドウテキ　タイケン　ロン　ニ　ヨル　リッポウ

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Austrian legal scholar Walter Wilburg has developed what is known as a “flexible system”. According to this system, a legal rule shall contain explicit reference to all the elements (factors, principles) relevant in finding a solution in the particular case to which this rule is to be applied. This system was adopted for the first time in history in the New Austrian Draft on Liability Law. But this approach has given rise to criticism, because it may create a rather high level of uncertainty. Franz Bydlinski, the most eminent follower of Wilburg, distinguishes a “flexible system” in the genuine sense from one in the non-genuine sense. Elements of a “flexible system” in the genuine sense cannot be found at the micro level of individual legal rules, but at the macro level of the basis of whole legal institutions or fields. In this paper, after describing the inner system of tort law, I examine whether the flexible system of the New Austrian Draft is genuine or not.

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