抄録
1. This article attempts to ascertain the conception of the “publlic welfare” through investigation of the principle of Treu und Glauben or the abuse of rights provided for in section 1 of the Japanese Civil Code. The problems to be considered here are what connection the principle of Treu und Glauben or the abuse of rights has with the amendments or collapses of the classical civil law, what bearing this problem has on the “benefit comparison” recently prevailing in Japan, and what relations there are between law and ethics in the problem concerned.
2. Surveying the researches ever made, the function of the principle of Treu und Glauben or the abuse of rights can be divided into two; one is the rule-embodiment which supplements the rules of the Civil Code, and the other the rule-creation which provides the means for adjusting the concrete benefits to meet the requirements of the new social relations even contra legem.
3. What made it necessary to embody the rule by the principle of Treu und Glauben or the abuse of rights? The fabric of the classical civil law was built up by Pandect Jurisprudence of the nineteenth century Germany, especially by Friedrich Karl von Savigny (1779-1861), its dominating idea being Willenstheorie. But the civil law contained the rule not adapted to such a theory and system, one of which was the principle of Treu und Glauben. Accordingly, this embodiment is that which supplements the civil code, prearranged from the beginning, and does not circumscribe the private autonomy.
4. What social meaning has the rule-creation by the principle of Treu und Glauben or the abuse of rights? In the first place, where it appears as clausula rebus sic stantibus, it plays a role of maintaing the essential equilibrium or securing the substantial justice. In the second place, what it carries out in the relation of immediate neighbors is an adjustment of the benefits of an equal ownership of adjacent lands. Recent large-scale urbanizations require the new rule-creation corresponding to the latest phases of neighboring relations. In our country, because of imperfection of the provisions concerning adjacent relations or for lack of the rules as to immission, it was made necessary to moderate the requirements of torts by the abuse of rights. And thirdly, in the relation of leasehold, it plays a transitional role of amending and abolishing the existing statute for the purpose of strengthening lease of land or house. If a new statute is enacted, this transitional role will disappear, but such a kind of the rulecreation will prevail in the future too.
5. Lastly, let us take up a group of cases peculiar to our country. They are Morinaga v. Kumamoto Electric Co. Ltd., 15 Tai-han Minshu* 1481 (1936), arising from the defandant digging a waterway for generation of electric power under the plaintiff's land without his consent, Arimitsu v. Kochi Railway Co. Ltd., 17 Tai-han Minshu 2057 (1938), where the defendant company filled up the paintiff's land and constructed a bank for laying a railway without permission in spite of the plaintiff's repeated protests, Kobayashi et al. v. Nippon Electric Generation and Transmission Co. Ltd., 4 Sai-han Minshu** 625 (1950), bearing on the plaintiffs being incapable of carrying timbers by water in the lower stream by reason of the decrease of flowing water alleged to be caused by the defendant's construction of a dam in the upper course, and Matsumoto et al. v. the state, 19 Sai-han Minshu 2334 (1965), the case in which the plaintiffs' claim for recovering of their lands within Itatsuke Air Base taken over by the Occupation was denied by the Supreme Court on account of the abuse of rights even though there is no contract of lease between the plaintiffs and the state after the Peace-Treaty came into effect.
