【摘要】 尽管日本有关和解的定义规范明文规定了存在纷争和互让这两项要件,但通说和判例并不坚守。和解具有确定双方权利义务关系的效果,即确定效。在和解与错误的关系上,学说和判例均采取类型化的做法区别对待。关于和解制度的体系定位,少数有力说认为没有存立的必要,但多数意见基于纷争解决的普遍意义主张维持现状,即仍将和解制度作为一种有名契约规定在民法典债权编契约分则的最后。更多还原

【Abstract】 Although both the element of existence of dispute and the element of mutual accommodation are explicitly articulated in the rules with respect to reconciliation,neither of them has been strictly followed. Reconciliation entails the effect of stabilization,denoting the stabilization of the rights held against and the duties owed to the counterparty. As regards the relation between reconciliation and its mistake,a category-based separation can be found in both the academic arguments and the relevant cases in terms of the legal treatment as such. As regards the positioning of the regime of reconciliation in the civil law system,it is argued by minority that there is no need for categorizing it into the list of nominate contracts,whereas it is argued by majority that the status quo of the position of reconciliation should be unchanged based on practical concerns about dispute resolution,the later is,to treat the reconciliation as a specie of nominate contracts and thus to put it at the end of the Chapters of ‘specified contracts’,which is a part of the Book of Obligations of the Japanese Civil Code.更多还原