메이지민법상의 변제자와 변제수령자

Performing Parties and Receiving Parties in the Meiji Civil Code

The provisions concerned with “performance” in Meiji Civil Code accepted many rules and concepts from the French Civil Code and the Japanese Former Civil Code Draft, which was influenced by the French Civil Code. However, there is a difference between the two civil code in the way of regulating ‘parties to perform.’ The Meiji Civil Code only present exceptional rules which can make the performance valid even it is done by persons without right or authority. However, there is no general rules which defines the parties concerned for the valid performance in Meiji Civil Code. In contrast, the French Civil Code provides the persons with a right or authority for valid performance. The fact that the legislators of the Meiji Code misapprehended performance as legal act(Rechtsgeschäft) was influenced in lawmaking courses in many ways. For instance, they were always conscious about the possibility of being overlapped with the Capacity in General Provisions, while including the provision of performance by a person not having ability to transfer and excluding the provision about performance against a person not having ability to receive payment. Besides, the relations with bona fide acquisition(redlicher Erwerb) was also seriously discussed. Recently, that the position to understand performance as legal act(Rechtsgeschäft) is disappearing. So, it is necessary to adapt to this legal reality after understanding the legislation history completely when we interpretate the relevant provisions.