地方財政

自治体財政権の憲法規範的意味とその検討方法

抄録

1. On finance, the Constitution provides in Chap. VII for "the power of the Diet to administer national finances", while on the finance of local entities, it merely refers to "the right to manage their property" (Art. 94). This reticence makes it imperative to consider the constitutional protection of local financial right as an integral part of their power "in accordance with the principle of local autonomy".
2. Under the "institutionelle Garantien" theory, the right might be classified as essential. Yet, any objective standard to distinguish the essential from the non-essential isn't built-in, making it unfeasible to crystallize the right.
3. Although Kitano's theory involves notable propositions, proposed tests are left elusive.
4. Problems on constitutional protection range from its objective through the means to the legal consequences. Difficulty in ascertaining the proper means required by the Constitution can't legitimize entirely entrusted choice of means with the legislator's discretion.
5. (1) An attempt should be made to correlate the objective of protected financial right with the protection of human rights. It is, however, found at the level of objective or ideal.
(2) To limit governmental discretion in favor of local financial right, constitutional theories should be elaborated; ones rendering scrutiny of unfavorable consequences on the entity inevitable.
(3) To secure the financial resourses, law-making perspective should be drawn to such methods as local taxation and grants of subsidies, to their combination and to their respective improvement.
(4) To determine whether the selected method has attained the subjective, verification in terms of "legislative facts" is indispensable. Collaboration of lawyers with specialists on finance is accordingly enhanced in its significance.