企業責任の法律構成(平松毅教授退任記念論集)

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According to Japanese Civil Code ∬ 44 and 715, liability of a corporate body or employer supposes the organ's or employee's moral fault. This supposition is based on the responsibility of small companies, apprenticeship and housekeeping in nineteenth century Japan. However, this supposition crumbled with the advent of organized mechanical enterprise which transformed all branches of Japanese social and economic life. Especially in the area of environmental pollution, product liability, and infectious disease in hospitals, it is difficult to determine on whom to place blame for all harmful consequences arising from such organized enterprise. In 1941, Professor Ehrenzweig found that certain useful industrial activities can be carried on only at substantial risk of injury to others, even after all reasonable precautions have been taken. The risk is inherent in the enterprise undertaking itself, and for this foreseeable indigenous risk enterprise must answer. It is the price paid for the privilege of undertaking the enterprise. It is "negligence" said Eherenzweig, because the enterpriser proceeds in the face of certain injury to others. In this article I propose that the enterprise itself must be responsible for inherently typical risk of injury to others, irrespective of whether the organ or its employee does or does not represent moral fault. I say that it is the enterprise's liability of "negligence withoutthe organ's or employee's fault". The Civil Code ∬ 709 and 717 is applicable or analogical applicable to this enterprise liability.
関西学院大学の論文
2004-12-30

著者

田上富信
関西学院大学大学院司法研究科

企業責任の法律構成(平松毅教授退任記念論集)

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