「現代型訴訟」とその機能

抄録

This paper proposes a new concept of "contemporary type litigation" (Gendaigata-soshou) from the perspective of legal sociology, distinct from that of legal dogmatics. After a brief survey of various usages of the term in the recent lierature, the author puts forward the concept of contemporary type litigation defined as one that calls for, beside the resolution of a specific dispute, a change in normative structure itself, whether at the level of formal of formal legal rules and institutions, at the lebel of organisational practices, or at the level of social norms and customs governing everyday social relations. This definition widens the extension of the term somewhat so as to include not only thoselitigations involving policy issues and a large number of organised plaintiffs (e. g. airport noise suits and SMON suit), but also those filked by individual plaintiffs concerning, for example, babysitting arrangement between neighbours, hair regulation of school children, doctor's malpractice, etc. Thus, the author proposes to subdivide the concept into three subcategories: (1) the human relations suit; (2) the large scale damage suit; and (3) the public policy suit, corresponding to the differsnt levels of nomative structure called into question. Behind these numerous litigations of novel type, there is, according to the author, an underlying cry for and an impetus toward a social order based on the principle of individual autonomy.