메이지민법상의 변제자와 변제수령자

The provisions concerned with “performance” in Meiji Civil Codeaccepted many rules and concepts from the French Civil Code and theJapanese Former Civil Code Draft, which was influenced by the FrenchCivil Code. However, there is a difference between the two civil code inthe way of regulating ‘parties to perform.’ The Meiji Civil Code onlypresent exceptional rules which can make the performance valid even it isdone by persons without right or authority. However, there is no generalrules which defines the parties concerned for the valid performance inMeiji Civil Code. In contrast, the French Civil Code provides the personswith a right or authority for valid performance. The fact that the legislators of the Meiji Code misapprehendedperformance as legal act(Rechtsgeschäft) was influenced in lawmakingcourses in many ways. For instance, they were always conscious about thepossibility of being overlapped with the Capacity in General Provisions,while including the provision of performance by a person not havingability to transfer and excluding the provision about performance against aperson not having ability to receive payment. Besides, the relations withbona fide acquisition(redlicher Erwerb) was also seriously discussed. Recently, that the position to understand performance as legalact(Rechtsgeschäft) is disappearing. So, it is necessary to adapt to this legal reality after understanding the legislation history completely when weinterpretate the relevant provisions.