府県会規則第七條(建議権)改正問題をめぐって
我が国における「法治国」の形成
1988 年 1988 巻 38 号 p. 91-122,en6
詳細
1988 年 1988 巻 38 号 p. 91-122,en6
It is said that local government in modern Japan was established by enactment of the Regulations Governing the Organization of Cities, Towns and Villages (SHISEI-CHÔSONSEI) in 1888, and of the Regulations Governing the Organization of Prefectures and Rural Divisions (FUKENSEI, GUNSEI) in 1890. These regulations were products of the administration in the era of Three New Laws (SANSHINPÔ). The most remarkable thing about these Three New Laws is that elected Prefectural Assembly (FUKENKAI) was established. Above all article 7 of the Prefectural Assembly Regulation (KENGIKEN) was one of the most important competences of the Prefectural Assembly. KENGIKEN was designed in order that people could give their opinions to the Grand Council of State (DAJÔKAN) through the Prefectural Assembly.
In this paper I examined arguments about the revision of artible 7 of the Prefectural Assembly Regulation in the Grand Council of State in 1882.Inoue Kowashi (the Chief Secretary of the Cabinet NAIKAKU SHOKIKANCHÔ) and Shirane Sen-ichi (the Chief of the General Affairs Section in Home Office NAIMUSHÔ SHOMUKYOKUCHÔ) were in opposition each other concerning how the Prefectural Assembly's opinion to the Grand Council of State (KENGI) should be controlled. Inoue Kowashi asserted that article 7 of the Prefectural Assembly Regulation had to be revised. But Shirane Sen-ichi objected to him. In his opinion it need not to be revised and may as well be managed with executive discretion. Eventually, Shirane's view was adopted.
In my article I analyzed how the Prefectural Assembly have been deprived of the competences by executive discretion. My conclusion is the following.
First, the superiority of administrative power was established.
Second, I shall argue that the way which strengthened regulation by executive discretion was a pioneer of a theory of "a Constitutional State".
Third, after the Emperor's announcement in October 1881 (MEIJ1 14NEN NO SEIHEN) administrative officers, who had much learned the administrative law in Prussia, came to have influence on the Grand Council of State and administrative departments.
