Departmental Bulletin Paper 契約当事者間における交渉力格差と契約の有効性 : イギリス法における「非良心的取引」及び「過度な影響力の行使(不当威圧)の推定」法理の現代的機能への着目

菅, 富美枝

83 ( 2 )  , pp.1 - 41 , 2015-11-30 , 法政大学経済学部学会
During the recent reform of the Civil Code in Japan, there was some discussion about the need for clear provisions regarding the validity of contracts that are signed when one party has more bargaining power than the other. Such contracts quite often seem to be clearly advantageous to the former party. The practices engaged in when concluding such contracts also seem unfair. Although the proposed provision was dropped from the draft in the end, it is still believed that weaker parties, when negotiating a contract, should be protected from exploitation by stronger parties. In this article, the focus will be placed on the logistics of setting aside such contracts. It is concluded that what matters is not whether inequality exists between the parties, but rather whether the inequality can be assumed, on factual grounds, to have been abused. To put it another way, even in a situation where inequality in bargaining power exists, contracts can still survive if proper advice is proved to have been sufficient to eliminate the influence of the stronger party. This will motivate stronger parties to make arrangements for fair advice, and, as a result, weaker parties can be more empowered to enter into just contracts.

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