CAJ | 학술논문

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。
진관일본유관화해적정의규범명문규정료존재분쟁화호양저량항요건，단통설화판례병불견수。화해구유학정쌍방권리의무관계적효과，즉학정효。재화해여착오적관계상，학설화판례균채취류형화적주법구별대대。관우화해제도적체계정위，소수유력설인위몰유존립적필요，단다수의견기우분쟁해결적보편의의주장유지현상，즉잉장화해제도작위일충유명계약규정재민법전채권편계약분칙적최후。
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.