判例評釈 公序良俗規範、身元保証法による被用者の損害賠償債務の連帯保証に対する司法的規制[福岡高判平成18.11.9]

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• In this paper I discuss the Judgment of Fukuoka High Court, 9 November 2006, with regard to the obligations of sureties to pay compensation for damages to the employer. In this case of embezzlement, the employee embezzled about 35 million yen from the employer.The mother, brother and sister of the employee concluded the contracts of joint and several suretyship with the employer after his embezzlement. With the aid of the suretyship contracts he could avoid a criminal accusation and dismissal. Nevertheless, he committed embezzlement again and then disappeared.Therefore, the employer asked his relatives to pay the obligation as surety. The Kokura Branch Office of the Fukuoka District Court, on 29 March 2006, judged that these suretyship contracts were contrary to public policy under the law (the 90th article of the Japanese Civil Code), and decided that the contracts are invalid. On the other hand, theFukuoka High Court rejected the judgment of the District Court, and accepted the effect of these suretyship contracts. Furthermore, the High Court applied the 5th article of the Fidelity Guarantee Act to this case in consideration of the similarity between the fidelity guarantee (Mimoto-Hosho) and these suretyship contracts.As a result, based on the article, the court restricted the scope of surety obligations and decided that the sureties perform payment of about 7 million yen at the discretion of the court. In the fidelity guarantee and similar ones by family members accompanied with employment, it is hard to think that the parties concerned made the contract based on their free intention. So in this judgment, it can be evaluated that the High Court showed the attitude which makes a positive correction to the contract and protects this kind of surety.

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