判例研究の目的と方法(民法)

抄録

The author reveals in this paper his own view of ‘precedent’ research for legal interpretation. In the first place, ‘precedent’ is defined as judgement, both repeated in decisions and expressed anew in a decision by the Supreme Court before and after World War II. The ‘precedent’ so defined, which involves probable repetition of the same judgement, i. e. predictability, does not comprehend judgements by lower courts, which do not necessarily ensure predictability, due to their incompetence to bind the free judgement both by themselves and by the Supreme Court, in spite of its significance in legal sociology.
As to the question whether such ‘precedent’ is ‘law’ or not, the affirmative answer is given on the ground that ‘precedent’ binds practically lower courts, because their judgement against ‘precedent’ will surely be reversed by the Supreme Court, and that the Supreme Court itself needs to ‘open Grand Bench’ in order to reverse its own precedent.
Next comes the most complicated problem: Which part of a decision by the Supreme Court makes ‘precedent’, the holding as to reversal or dismissal, or the whole state ment of judgment including ratio decidendi, which expresses legal basis for the holding? Some of influencial Jurists stand by their opinion that ratio decidendi is a means to justify legally the holding, which came into the judge's mind intuitively separate from legal reasoning, and therefore that the holding, which enables people to predict future decisions in its connection with the particular facts of the case concerned, is the only factor of ‘precedent’. The author, however, stands in opposition to the said opinion, saying that the holding alone dose not form ‘precedent’ until it is understood as one part of the whole context, inseparably connected with the ratio decidendi. Firstly, it is unbelievable to say ratio decidendi is a mere means of justification. Secondly, the lower court deciding any remanded case might follow the ratio decidendi of the Supreme Court decision. And lastly, the process of generalizing the facts and holding in one particular decision and of relating both with each other, which is emphasized by the majority above mentioned, can not be successfully achieved without using the ratio decidendi. Significance of obiter dictum shown in the Supreme Court opinion, which lacks legal binaing competence unlike ratio decidendi, ought not to be neglected, because it may offer a clue for the prediction of future decisions with the high expectation of its adoption by the lower courts.
Finally, the purpose of ‘precedent’ research is not to be confined to the analysis of predictability of the decisions, but further to be extended to stimulating the court for better assurance of fair judgment by criticizing the court-room administration of justice. The ‘precedent’ research, in that sense, should be provided with the most important status in legal interpretation.