Opposite interests


November 28, 2021

A conflict of interest is a profit / purpose that a person (politician, business owner, lawyer, medical professional, researcher, etc.) who is in a position to perform duties with confidence should pursue from the standpoint. A state in which the person's other positions and personal interests (interests) are in conflict or conflict with each other. With such conflicting interests, it becomes difficult to fulfill the obligations required by the position. Conflicts of interest exist without any unethical or inappropriate conduct. Conflicts of interest can cause improper aspects that undermine trust in the person or his or her position. Certain conflicts of interest are treated as illegal and are subject to regulation by law. Moreover, even if it is not regulated by law, it may cause an ethical problem. COI (English: conflict of interest) is sometimes used as an abbreviation.

Surrogate Principle

Japanese law

Under Japanese Civil Code, for the same legal act, if the person's agent is the other party to the legal act (self-contract) or if the agent is the agent of both parties (both agents), the agent Rights have been restricted. The pre-amendment Civil Code of 2017 stipulated that the effects of self-contracts and bilateral representations were difficult to read, but the amendment of the law stipulated the case law that makes self-contracts and acts by bilateral representations unauthorized representations. However, since the interests of the person are not impaired for the performance of the obligation and the act that the person has given in advance, it is valid even if he / she has a self-contract or acts on behalf of both parties (Article 108, Paragraph 1 proviso). Furthermore, in the revised Civil Code of 2017, a new provision (Article 108, Paragraph 2) was established to regard acts in which the interests of the agent and the principal conflict with each other as acts performed by a person who does not have the right of representation (2020). Enforced on April 1, 2014). However, the act that the person has given permission in advance is not an unauthorized proxy act (Article 108, Paragraph 2 proviso).

Anglo-American law

In the Anglo-American law of agency, there are "actual agency rights" and "appearance doctrine" as criteria for judging the existence of agency rights. In principle, the actual proxy right cannot be established unless the person does what he or she desires. If the other party knew or should have known about the voluntary figure of the agent, the right of representation by the appearance doctrine is not recognized.


Japanese law

Custody / Guardianship

In the following cases, the family court must be requested to appoint a special agent. An act performed directly by an agent without doing this is an unauthorized agent. However, in the case of guardianship, this is not necessary if there is a guardian supervisor. For acts of conflicting interests between the custody father or mother and the child, the custody person must request the family court to appoint a special agent for the child (Civil Code Article 826, 1). Item). When a custody person gives custody to several children, the custody person appoints a special agent for one of the acts in which the interests of one child and the other child conflict with each other. You must request the family court to do so (Civil Code, Article 826, Paragraph 2). The provisions of Article 826 shall apply mutatis mutandis to the guardian. However, this does not apply if there is a guardian supervisor (Civil Code Article 860). For example, the parental authority may provide a joint guarantee for the financial debt of a third party, and as a child's agent, the parental authority may jointly guarantee the same debt and set a mortgage on the real estate shared by the parental authority and the child. Etc. are profits

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