<論説>會社の不法行爲能力についての一考察
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概要
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Any social entities, except natural persons, that are recognized presonality in the statute law are called artificial persons. The corporation, which is an organized body and is legally recognized as an incorporated association possessing juridical personality, has the capacity for rights (Rechtsfahigkeit) and the capacity for performing legal acts (Geschaftsfahigkeit). The scope of the capacity of a corporation for rights and that for performing legal act determine the scope of the corporation itself, which can be objectively defined based on the jurisprudence of organization. At the same time they represent the scope of the authority of the representative body. So it follows that any act done by the body within this scope must be regarded as the act of the corporation, whether it is a procedural transgression perpetrated within the organization in making decisions or a misdeed committed by a member of the body for selfish aims. (It is not valid acts alone that must be regarded as the corporation's acts. There are acts of the corporation before they are legally determined as valid or invalid.) In case such an act causes a damage to another person, it will be treated not as the act of the individual but as the act of the corporation, and as such its lawfulness will be questioned. A survey of recent precedents of the supreme court reveals a tendency towards an objective attitude, as in the case of the scope of the corporation's capacity for rights, in defining the scope of the acts for which the representative body is capable, when the body is representing the corporation in making reparation for damages in accordance with Subsection 1,Section 44 of the Civil Code. Both these scopes represent the extent to which the corporation can exist and act, so they are fundamentally the same things. The capacity of the corporation for tort ought to be understood as one aspect of its capacity for action. Thus a corporation's capacity for tort may be acknowledged when the body perpetrating the offence is looked on as a physical entity, but this does not on the same plane permit the body to be recognized as a legal subject. From the point of view of the statute law, it is impossible that the corporation and the body are both liable for reparation externally. (Internally, the individual member of the body may be personally held responsible for making amends for the damage inflicted on the corporation.) However, from the legislative point of view, it is desirable that the liability for reparation, externally as well as internally, be recognized, as in the Swiss civil code, in both the representative body and the corporation.
- 関西学院大学の論文
- 1956-09-25
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