일본에 있어서 소비자계약상 정보제공의무의 법리

Abstract

This thesis examines how Japan is responding to the information gap between consumers and businesses on the grounds of regulations under the special law and civil code. Then this paper will investigate various theories regarding the Obligation to provide information : a) a view that identifies the Obligation to provide information as a measure to relieve the regulatory conditions under the declaration of intention, which prescribes the Obligation to provide informations as a fraud or a mistake; hence, it seeks to expand the limit of scope. b) a view that considers the Obligation to provide information according to the Negligence and Breach of Contract. c) a view which evaluates the Obligation to provide information as a measure to secure self-determination and d) to comprehend it as a duty to advise in the case of fiduciary duty. In Japan, there is lack of legal responses to eliminate the information gap between consumer and businesses under consumer contract. Due to the limited scope within the boundaries of the Enterprise Act and Consumer Contract Act or The Law on Sales of Financial Products, the problem is highly unlikely to be solved. As the theories have strictly construed the rules of the civil code, to elucidate the legal problem by stipulating civil code is also problematic. As a result, Japan is currently seeking to relieve the requirements for declaration of intention including fraud and mistakes by utilizing the notion of the 'Obligation to provide information'. Many studies are accumulated in Japan for legal recognition of compensation for damages and nullification of contract in some cases, in accordance with the Negligence and Breach of Contract. In the latter case, it is practicing a significant influence on the development of theories in Japan on the basis of its own hypothesis and precedents. Recently, Japan has pointed out the limit in solving the dispute over the information gap between consumer and businesses only by determining whether necessary information was given or not. There has been a new view which has come to the fore in Japan, that attempts to settle the dispute by applying the Suitability Principle. However, there are pending issues regarding the legal basis of the Obligation to provide information, the requirements and validity for the breach of obligation, and the problems encompassed within stipulating the civil code which are still remaining and yet to be solved. Japan has a strong inclination to recognize the Obligation to provide information in a general way. However, the necessity of case analysis is commonly understood in Japan as a means to comprehend the content of the law. In brief, this thesis will provide favorable implications to the theoretical analysis and de lege ferenda as it has effectively arranged, analyzed and evaluated the Obligation to provide information.