日本學士院紀要
Online ISSN : 2424-1903
Print ISSN : 0388-0036
ISSN-L : 0388-0036
39 巻 , 1 号
選択された号の論文の2件中1~2を表示しています
  • 市古 貞次
    1983 年 39 巻 1 号 p. 1-22
    発行日: 1983年
    公開日: 2007/06/22
    ジャーナル フリー
    Jinkeisho is a literary work of as many as 500 sheets of paper, consisting of 11 Chapters in 11 Volumes, appeared in the Muromachi Period. But, to our regret, very few theses have ever been written on this subject.
    Examining its contents, I found that it had been written in 1482 with a few additional descriptions given sometime before 1500 AD. Though the name of author is unknown, it is pretty sure that he was a recluse Buddhist priest of noble origin, who had devoted himself to his lessons from his youth, had once been in the service of the Imperial Court, but had resigned from his position for some reasons, and after wandering about from place to place for years, lastly had settled in a thatched hut near Miyako (ancient capital in Kyoto). This literary work is composed of the following story, told by a Zato (a blind musician) who, coming up to Miyako a long way from Oshu (the North-Eastern part of Japan), took a lodging for the night in the hut, and was put on record by the author, the said Buddhist priest.
    Once there lived two young men, named Hanawaka and Tamawaka, in one of the Hieizan Buddhist temples, and they were working hard at their lessons. Hanawaka was a descendant of the Genji family, who were residing in Ashikaga in Kanto district, Tamawaka was a descendant of the Heike family, who were residing in Dazaifu in Kyushu Island, and their mentor, the head priest was descended from the Fujiwara family. These three characters reciprocally tell about Buddhism, successive Emperors and Shoguns, literary works such as waka (31-syllable Japanese poems), renga (linked poems), Monogatari (novels in the Heian and Muromachi Period), and performing arts, etc. These accounts amount to more than 80 per cent of all the contents, and therefore, it may safely be said that Jinkeisho has something of the encyclopedia in its nature. At last Tamawaka was seized with an illness and died. The head priest and Hanawaka were very much grieved at his death and held a memorial service most warmly. Soon after that, however, the head priest also passed away. Being left behind them alone, Hanawaka made up his mind to become a Buddhist priest, shaving off his hair. It is told that he left Hieizan and, after devoting himself for years to Buddhism, died a peaceful death.
    The above is the outline of Jinkeisho, and so it can be said to be a kind of modification of Chigomonogatari (temple page story). It is also quite a noteworthy fact that Jinkeisho gives an example of the typical way of telling a story in those days (the Muromachi Period) to introduce historical allusions and knowledges in it. We can also find out, in the accounts given by the said three characters, the special narratives which explain how Taketori-no-Okina (an old bamboo cutter) legend and Genji-monogatari (the Tale of Genji) came into existence. Thus, I conclude that Jinkeisho is a particular literary work which furnishes important materials for the study of legend and narrative literature.
  • 田中 誠二
    1983 年 39 巻 1 号 p. 23-47
    発行日: 1983年
    公開日: 2007/06/22
    ジャーナル フリー
    According to legal history and legal thoughts, the principal part of the science of present commercial law is to research the legislation and interpretation of law from the point of laying stress on the importance of the social function of business. I can show certain examples of this tendency.
    As to legislation, I point out the 1981 Ammendment of the Code of Commerce. The principal examples of this new legislation, from point of view above-mentioned, are the rights of shareholders to make proposals to general meeting of shareholders and the exclusion of so-called Sokai-ya. About the board of directors, the clear regulation of its authority prevents the arbitrary acts of president and officers of the corporation.
    As to the interpretation of corporation law, from point of view abovementioned, the doctrines of the protection of creditors and shareholders of subsidiary corporation are decided by several courts. One of them is substantially a copy of Deep Rock Doctrine in U.S.A. and other several decisions depend on the doctrine of“piercing the veil of corporate entity.”
    From point of view above-mentioned, as to ordinary acts of business, there are several doctrines about the validity and interpretation of general clauses of business contract (in German, Allgemeine Geschäftsbedingungen), such as the doctrine of contra proferentem and the doctrine of ejusdem generis.
    From the same point of view, as to the extraordinary acts of business, i.e. the responsibility of business for damages caused by it, the main tendency is from“responsabilité”to“garantie”(according to Prof. P. Durand), that is to widen the cause of responsibility and to limit the amount of responsibility. And further more, at present the responsibility of business is generally covered by insurance and re-insurance, and the damages are divided among many persons of the world. That is the best method of dissolving the problem of the business responsibility for damages caused by it.
    In short, the principal point of the science of present commercial law is to lay stress on deciding problems by the social function (useful) of business and many examples of present commercial law show the correctness of this point of view.
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