行政権開放の諸形態とその法理

抄録

Recently, the changes of administrative organizations have become a matter of interest for public law. The structure of the closed bureaucracy has been (at least partially) transformed to institutions open to transparent partnership with various interests and groups in civil society. This article examines the legitimacy of the 'democratization' of administrative organizations with the help of the intense dispute in Germany. The Federal Constitutional Court did not recognize the participation of persons concerned in administrative procedure as democratization. The democratic legitimation comes only from the whole people, and the administrative organization receives it only through the election, parliament and government, and so only from the top. The Court thought that the democracy demands the hierarchy in the administration. This hard attitude could be explained by the theory of Bockenforde. a Justice of the Court, that democracy means the 'political' decision of the whole nation as the 'Schicksalsgemeinschaft' The groups of private persons could not be the subject of democracy. This Schmittian understanding of democracy is too narrow to be accepted now. We must add. however, that interestingly Hans Kelsen was also against the 'democratization' of the administration. His concern existed in the possibility that the administration with its own legitimacy could resist against the law adopted by parliament If many laws have only abstract instructions in fact however, the participation of citizens in administrative procedure is useful and necessary to fulfill the duty to realize the aims of laws. This article examines then the recent reforms of Japanese administration. The so-called 'public comments' have been introduced into the Administrative Procedures Act. They are generally accepted, maybe because they leave the initiative of policy-making for the administration. In contrast, the significance of councils (Shingikai) has been disputed. The author thinks that the 'public comments' cannot substitute for the role of councils as the place to discuss face-to-face. The efforts to make them more transparent should be supported. The democratic legitimacy of public hearings which are spreading in local governments is also examined.