일본 메이지민법(총칙편: 법인)의 입법이유 분석

Comments on the Motives Codifying the Meiji Civil Code(General Part: Corporation)

This article contains the full translation of reform motives of the Meiji Civil Code(the general part). They are based on the texts edited by Hironaka Toshio, Minpo syusean (zensanpan) no ryusyo(Yuhikaku, 1987), and they add some comments from the viewpoints of the Korean lawyer, whose legislation has been widely influenced by the European legal tradition via the Japanese legal scholarship. Korean civil Law mainly referred to the Meiji Civil Code during its enactment. It was enacted, legislatively solving the problems that the Meiji Civil Code had, by adopting theories of those days. However, there has been no research about why the Meiji Civil Code was legislated, what the problems were, and how the current Civil Code s form is even though fifty years have passed. It can be said that there is a historical missing link. Therefore, this paper will investigate the reasons of legislation about some significant provisions in ‘second act : corporation of general provisions of the Meiji Civil Code and compare it with current the Korean Civil Code. The corporation part of the Meiji Civil Code is the section which was greatly influenced by the German Civil Code. Hozumi Nobushige, who is a draftsman of the corporation part, quoted the draft of the German Civil Code to each article. Yet, every article was not influenced by the draft of the German Civil Code. Some originated from old Japanese civil law and commercial laws. About one fifth of the provisions are contrast to or greatly different from the draft of the German Civil Code. Among them, one provision originated from common law and some provisions originated from old commercial codes but not in the draft of the German Civil Code. Since Karl Friedich Hermann Rossler, who was a German jurist and a draftsman of old Japanese commercial codes, it therefore cannot be ignored that it was influenced by the German Commercial Code.