このエントリーをはてなブックマークに追加
ID 45751
本文ファイル
別タイトル
Two Supreme Court Decisions on Ownership Reservation by a Credit Company
著者
田村 耕一 大学院法務研究科 広大研究者総覧
NDC
法律
抄録(英)
Japanese Supreme Court Decision (June 4, 2010)
“According to the facts, it is appropriate to construe that the Tripartite Contract was not concluded to confirm that the ownership of the Automobile reserved by the sales company would be transferred to the appellee as a result of subrogation, but it was concluded to make an agreement that the appellee, as security for the Claim for the Money Paid on the Purchaser's Behalf, would acquire the ownership of the Automobile transferred thereto from the sales company and then reserve such ownership. It should therefore be construed that the right that the appellee is entitled to exercise as the right of separate satisfaction is said ownership that has been reserved thereby as security for the Claim for the Money Paid on the Purchaser's Behalf, etc. More specifically, the appellee is to acquire, under the Tripartite Contract, the Claim for the Money Paid on the Purchaser's Behalf, etc. against the appellant, which covers not only the amount equivalent to the Remaining Price but also the amount of commission. Under this contract, the parties have agreed that the ownership of the Automobile shall be reserved by the appellee until the Obligation for the Money Paid on the Purchaser's Behalf, etc. is fully satisfied, and that when the appellant forfeits the benefit of time for the Obligation for the Money Paid on the Purchaser's Behalf, etc. and delivers the Automobile to the appellee, the appellee may appropriate the appraised value of the Automobile to satisfaction of the Obligation for the Money Paid on the Purchaser's Behalf, etc. This clearly indicates that the ownership to be transferred from the sales company and reserved by the appellee is intended as security for the Claim for the Money Paid on the Purchaser's Behalf, etc. If the effect of the appellee making payment on behalf of the appellant is limited to the transfer of the ownership of the Automobile, which has been reserved by the sales company, to the appellee as a result of subrogation, the appellee's claim would be secured only up to the amount equivalent to the Remaining Price, which is contrary to what the parties reasonably intended under the Tripartite Contract.”

Japanese Supreme Court Decision (December 7, 2017)
“In the case where it was agreed that the ownership of the Automobile reserved by the sales company as security for the Claim for the Remaining Price, the guarantor of the trade price paid the Remaining Price to the selling company as the guarantee obligation. It causes subrogation by performance, and as a result, the ownership of the Automobile that has been reserved by the sales company as security for its claim for the Remaining Price is transferred to the guarantor, by operation of law, along with the claim for the Remaining Price held by the sales company against the buyer. ”

The difference between the two judgments arises from the difference in the secured claims that the credit company contracted with the buyer. Then, is it possible to exercise the remaining price claim under the tripartite contract? Under Japanese law, transfer of collateral without secured claim is not allowed. Therefore, the secured claim will be attributed to the credit company. However, the selling company still has claims on automobiles as secured receivables. Therefore, the possibility of exercising secured claims depends on the interpretation of collateral subshares.
掲載誌名
広島法科大学院論集
14号
開始ページ
95
終了ページ
116
出版年月日
2018-03-20
出版者
広島大学法学会
ISSN
1880-1897
NCID
言語
日本語
NII資源タイプ
紀要論文
広大資料タイプ
学内刊行物(紀要等)
DCMIタイプ
text
フォーマット
application/pdf
著者版フラグ
publisher
権利情報
許可なく複製・転載することを禁じる
部局名
法務研究科
他の一覧