The employees' protection during asset deals shall be explained in detail first from a Japanese and after that from a German legal viewpoint, introducing the respective systems of company and labour law and taking into account the historical as well as the social context of both countries. Afterwards, these two systems shall be directly compared to determine whether there are lessons to be learned from the other regulatory way. By these means, the questions shall be answered, how much protection during asset deals for employees is necessary and adequate, as well as whether an optimal regulation of this situation is possible.
Through times of economic upswing or crisis, Japan and Germany's economic and legal cooperation has been profound for the longest time and thus overcame borders in culture and language. As for labour law, in particular, both countries share the general regulatory way by emphasizing the protection of employees – with only natural differences remaining.
Furthermore, be it times of economic stability or uncertainty, the acquisition of undertakings in the form of asset deals for business expansion or restructuring plays a significant role in both countries. The (dis-)continuity of employment relationships upon such restructuring measures, however, bears great risks and insecurities for employees and calls for the legislator as well as the jurisdiction to provide for solutions. Solutions have been found in Japan as well as in Germany – although with significant differences yet to explore.
Table of Contents
A. Introduction and course of investigation
B. Employees' protection during asset deals in Japan
I. Asset deals in Japan
II. Employees' protection in Japan
1. General overview
a) Historical development of Japanese labour law
b) Nowadays' employment in Japan
c) Protection of employees against dismissal
2. Protection of employees during asset deals in Japan
a) Employee's need for protection during asset deals and current legislation
b) Excursus: The protection of employees during company splits
c) Jurisdiction and national reception
d) Position statement
C. Employees' protection during asset deals in Germany
I. Asset deals in Germany
II. Employees' protection in Germany
1. General overview
a) Historical overview of German labour law
b) Current work environment and labour legislation in Germany
c) Protection of employees against dismissal
2. Protection of employees during asset deals in Germany
a) History and telos
b) Structure and elements of the current legal standard
(1) Undertaking or part of a business – continuation of an economic entity
(2) Transfer by legal transaction to a new owner
(3) No objection by the employee
(4) Transfer of employment, grandfathering, and continuity of collective agreements
c) Excursus: The protection of employees during company splits and mergers
d) (Inter-)National reception and position statement
D. Comparison of the two legal regimes and lessons learned therefrom
I. Historical similarities – shared values
II. Historical and cultural differences – different emphasis of interests
III. Shared and split values in spotlight: The protection of employees during asset deals
E. Conclusion and summary
Objectives and Topics
This work aims to evaluate and compare the legal frameworks for employee protection during asset deals in Japan and Germany. It investigates whether the existing protections are adequate, particularly regarding the risk of job loss due to company restructuring or transfer, and explores whether lessons from the German model can inform potential reforms in Japanese labour legislation.
- Comparative analysis of Japanese and German labour laws regarding asset deals.
- Evaluation of employee protection mechanisms, including dismissal regulations and transfer of employment.
- Role of judicial influence vs. statutory legislation in labor market regulation.
- Impact of corporate culture, life-long employment, and industrial traditions on legislative approaches.
Excerpt from the Book
I. Asset deals in Japan
Japanese Company Law provides several types of companies, such as the General Partnership Company (合名会社 – gōmei kaisha), the Limited Partnership Company (合資会社 – gōshi kaisha), and the Limited Liability Company (合同会社 – gōdō kaisha). These are generally referred to as Membership Companies (持分会社 – mochibun kaisha), and they differ only slightly in their regulations from each other. The by far most prevalent corporate type, however, is the Japanese Stock Company (株式会社 – kabushiki kaisha, henceforth JSC) as specified under Art. 25 ff. of the Japanese Company Act (会社法 – kaishahō). With close to 550 articles, it takes the most prominent place at the beginning of the JCA. Since the JSC is registered at the stock market, an overtaking of the company, which is compared to Membership Companies more practicable due to a less fundamental binding of the membership, may be conducted in three main ways: Either by undertaking a share deal, in which the purchaser purchases and therefore receives the property of the company behind the shares as a whole. Another possibility for a transaction is a Company Split (会社分割 – kaisha bunkatsu) as specified under Art. 757 ff. JCA. For several reasons, the among these three least common and third way is an asset deal (営業譲渡 – eigyō jōto), in which the purchaser acquires each and every individual asset, including tangible property as well as contracts and obligations – each with another, potentially time-consuming procedure for perfection. The disadvantages of the last-mentioned method are as follows.
Summary of Chapters
A. Introduction and course of investigation: Outlines the scope of comparing Japanese and German labor regulation, specifically highlighting employee protection during corporate restructuring.
B. Employees' protection during asset deals in Japan: Examines the Japanese regulatory landscape, detailing how asset deals function and analyzing the current, largely case-law based, protection system for employees.
C. Employees' protection during asset deals in Germany: Provides an overview of German labor law, focusing on the statutory mechanisms, specifically Section 613a of the German Civil Code, that ensure employee continuity during business transfers.
D. Comparison of the two legal regimes and lessons learned therefrom: Contrasts the historical, cultural, and structural differences between the two systems and assesses potential policy recommendations for Japan.
E. Conclusion and summary: Synthesizes the core findings and advocates for a balanced approach to legislative reform in Japan that respects cultural context while providing necessary legal security for employees.
Keywords
Asset Deals, Employee Protection, Japanese Labour Law, German Labour Law, Company Split, Section 613a GCC, Dismissal Protection, Corporate Restructuring, Freedom of Contract, Comparative Law, Transfer of Undertaking, Employment Rights, Labour Unions, Industrial Relations, Legislative Reform.
Frequently Asked Questions
What is the core subject of this publication?
The work provides a comparative legal analysis of employee protection systems specifically during asset deals in Japan and Germany, focusing on the challenges of maintaining employment continuity.
What are the primary themes discussed?
Central themes include historical developments in labor law, the impact of company transfers on employees, judicial versus legislative roles in regulation, and the balancing of employer flexibility against employee job security.
What is the primary research goal?
The goal is to determine if current Japanese regulations, which rely heavily on case law and court intervention, sufficiently protect employees in asset deals, or if formal codification similar to the German model is necessary.
Which scientific methodology is utilized?
This work employs a comparative legal methodology, analyzing statutes, relevant case law, and scholarly literature from both jurisdictions to draw practical conclusions.
What topics are covered in the main body?
The main body covers the mechanics of asset deals, historical foundations of labor law in both countries, specific protection mechanisms like the "Doctrine of Abusive Dismissal" in Japan and section 613a of the German Civil Code, and a comparative study of the two systems.
Which keywords characterize this paper?
Key terms include Asset Deals, Employee Protection, Labour Law, Corporate Restructuring, and Comparative Law.
How does the "membership" concept impact employment in Japan?
In Japan, employment is historically viewed closer to a membership contract, built on mutual trust and long-term commitment (life-long employment), which influences how employees are treated during transitions.
What is the significance of Section 613a of the German Civil Code?
It acts as the primary legal mechanism in Germany that ensures the automatic transfer of employment relationships during the transfer of an undertaking, thereby providing robust statutory job security compared to Japan.
Are the legal protections in Japan sufficient?
While the author acknowledges that judicial doctrines provide some protection, it is argued that the current reliance on soft law and court challenges creates legal uncertainty and necessitates stronger statutory intervention.
- Arbeit zitieren
- Jannis Bantele (Autor:in), 2022, The Protection of Employees during Asset Deals in Japan and Germany, München, GRIN Verlag, https://www.grin.com/document/1322938
