法政論叢
Online ISSN : 2432-1559
Print ISSN : 0386-5266
40 巻 , 1 号
選択された号の論文の28件中1~28を表示しています
  • 原稿種別: 表紙
    2003 年 40 巻 1 号 p. Cover1-
    発行日: 2003/11/05
    公開日: 2017/11/01
    ジャーナル フリー
  • 原稿種別: 表紙
    2003 年 40 巻 1 号 p. Cover2-
    発行日: 2003/11/05
    公開日: 2017/11/01
    ジャーナル フリー
  • 原稿種別: 付録等
    2003 年 40 巻 1 号 p. App1-
    発行日: 2003/11/05
    公開日: 2017/11/01
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  • 照屋 信治
    原稿種別: 本文
    2003 年 40 巻 1 号 p. 1-16
    発行日: 2003/11/05
    公開日: 2017/11/01
    ジャーナル フリー
    The purpose of this study is a) to categorize the thought and events of Okinawa in the Meiji period, and b) to examine the historical position of Ryukyu Education (1895-1906) published by Association of Okinawan Private Education. Results of recent research in colonial studies and the framework for analysis of assimilation are adopted in this study. The term 'Kouminka' has been used carelessly in the existing study of modern Okinawan history. Ambiguous use of 'Kouminka', which has expressed some basic aspects of Okinawa, makes it almost impossible for us to understand those thought and events precisely. Well organized and strict discussion on modern Okinawan history can be made by using results of recent research in colonial studies and the framework for analysis of assimilation. Very few attempts have been made at such examination. This study has a significance in reexamining the framework for the thought on modern Okinawan history.
  • 林 紀行
    原稿種別: 本文
    2003 年 40 巻 1 号 p. 17-28
    発行日: 2003/11/05
    公開日: 2017/11/01
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    There were two constitutional referendums in Australia on November 6 1999. One was a referendum to make Australia a republic and the other was a referendum about the preamble of the Constitution. Both referendums were defeated because they did not aspire to what the Australian people wanted. This paper considers how the agendas for each referendum arose and why they were defeated. It will focus on the role of Prime Minister John Howard who was instrumental in persuading the public to vote against the republic referendum. In the early 1990's opinion polls showed that public support for a republic was increasing. So the government decided to hold a Constitutional Convention to address the republic issue. The Constitutional Convention concluded that Australia should become a republic and the government should put the question to a referendum. However, those in favor of a republic could not establish a clear consensus on the preferred model of selecting a head of state. So Howard, an impassioned monarchist, took advantage of this opportunity to divide the republicans. In February,1999,he announced a new agenda. This decision complicated the situation and confused the Australian people. Furthermore, there was a dispute between republicans and monarchists over the title of Constituion Alternation Bill. In the end, it was Prime Minister John Howard who controlled the process of 1999's referendums. Contents 1 Arguments For and Against a Republic 2 Constitutional Convention 3 Process of Constitutional Alteration Bills 4 Conclusion
  • 石堂 典秀
    原稿種別: 本文
    2003 年 40 巻 1 号 p. 29-41
    発行日: 2003/11/05
    公開日: 2017/11/01
    ジャーナル フリー
    In the Western countries, ADR (Alternative Dispute Resolution), which use electronic technique to resolve disputes, has been developing on the cyberspace. Behind the background of such a phenomenon there are needs to correspond problems resulting from the rapid spread of the Internet and the electronic commerce. Such development may bring a new concept into ADR. This article will discuss the background and the problems of Dispute Resolution on cyberspace. To distinguish ADR developed on the cyberspace from traditional ADR, this article will use the term of ODR for the former. In general, as to ADR on the cyberspace, it is understood that an electronic technique is utilised to supplement the function of ADR, while expressing variously as Online Dispute Resolution(ODR), Online ADR, Electronic Dispute Resolution(EDR), and Internet Dispute Resolution (iDR). However, such definition does not cover practically 'state of arts' in ODR. First, the 'traditional' technique and process of dispute solution in ADR are different from that of ODR,because E-mail, a chat, a video conference, and the website are short of elements of face to face meeting that ADR have been presumed. Additionally, these communication methods vary on each ODR provider. Secondly, though the same name as mediation and arbitration is used on line, it should be noticed that there is a wide gulf between ADR and ODR because of the different and virtual communication style. Thirdly, in terms of disputes which ODR treats the area could be more international and various than ADR does. Furthermore, the possibility of ODR does not limited to ADR as alternative dispute but includes court system, because Internet Technology also allows courts to perform the function of ODR. Therefore, ODR is becoming more diverse and complicated process. ODR are able to provide many people with convenient, prompt and inexpensive dispute resolution, but simultaneously there are numerous issues to be solved, such as judicial sanction, contract and conduct code regarding ODR. The diffusion of ODR will pose the necessity of international rules and standards, as well as E-commerce.
  • 樫原 義比古
    原稿種別: 本文
    2003 年 40 巻 1 号 p. 42-53
    発行日: 2003/11/05
    公開日: 2017/11/01
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    To what extent may a court consider a parent's religion as a factor when making child custody determinations? The Ohio Supreme Court faced this issue in Pater v.Pater. The case presented the court with an opportunity to offer guidelines for lower courts to follow when it becomes necessary to consider religious factors in child custody disputes. However, the court failed to articulate any specific tests. Currently,courts therefore appear to need guiding rules to assist them in avoiding the constitutional issues that surface when they consider religion in child custody cases. This paper reviews Supreme Court treatment of a parent's right to direct the religious upbringing and related First Amendment cases dealing with Free Exercise Clause issues in the United States and examines court consideration of religion in child custody cases in Japan. Finally,this paper emphasizes that religious factors may be legitimately considered as part of the best interest equation only(1)where the child has actual religious needs;(2)where the religious beliefs or activities violate con stitutionally valid laws;or(3)where religious activities or beliefs threaten imminent and substantial harm to the child's physical or mental well-being. Except for these narrowly circumscribed areas, judicial reliance on religious factors in deciding custody cases will be supported to argue to be unconstitu-tional.
  • 古橋 エツ子, 和田 隆夫
    原稿種別: 本文
    2003 年 40 巻 1 号 p. 54-57
    発行日: 2003/11/05
    公開日: 2017/11/01
    ジャーナル フリー
    The 98th general meeting and symposium of The Japanese Association of Law and Political Science were held at Tomakomai Komazawa University on 7th and 8th of the year 2003. In the afternoon sessions of the symposium organized on the uniform theme, "The law and policy about child-parent re lationship" four panelists presented their study reports. First, panelist Tamotsu Saegusa from Nagoya Gakuin University presented on the theme of "The New Role of the Criminal Law in Child Abuse" Second, panelist Yoshinobu Araki from Matsusaka University presented on the theme of "Authoritarian Personality, Child Abuse and Intergenerational Transmission" Third, panelist Tomiyuki Ogawa from Hiroshima University of Economics presented on the theme of "The New Role of the Criminal Law in Child Abuse" Fourth, panelist Machiko Kamio from Shobi University presented on the theme of "Parent and Child in the Social Security Law" After these important reports, each reporter responded to some questions and opinions from several members of the floor. This symposium ended successfully at 17:30. We are thankful to Prof. Yutaka Higashi and all other people at Tomakomai Komazawa University who helped this symposium.
  • 荒木 義修
    原稿種別: 本文
    2003 年 40 巻 1 号 p. 58-65
    発行日: 2003/11/05
    公開日: 2017/11/01
    ジャーナル フリー
    This paper reveals that child sexual abuse factor, aggressive dimension of the authoritarian personality and economic anxiety influence the current Japanese students who consider that religion is important. As a result it implies that such a perspective could explain also the behaviors of the Aum Shinrikyo Sect. The terrorist group that is mainly seemed to be consisted of young authoritarian males escape from freedom by committing to religion, namely Aum Shinrikyo to remove anxiety aroused by the serious economic crisis and child sexual abuse experiment.
  • 三枝 有
    原稿種別: 本文
    2003 年 40 巻 1 号 p. 66-78
    発行日: 2003/11/05
    公開日: 2017/11/01
    ジャーナル フリー
    The act of child abuse is often performed by the protector of the abused child under the veil of "discipline", so the abuser does not have the strong sense of guilt, nor is the abused conscious of the fact that he or she is the target of a crime. That is why child abuse is called "a hidden crime". Most of the acts of child abuse are performed behind closed doors and continue for a certain period of time. In most cases such acts are not discovered by an outsider easily. Moreover the act of child abuse is performed between the special relationship such as the relationship of a parent and a child, so that it is difficult for the abused children to recognize themselves as a victim and the children tend to be resigned to their situation. Not only that, the abused children often form the sense of guilt because they feel they are also responsible for such an act. In 1961 C.H. Kempe advocated "the Battered-Child Syndrome" concerning the actual conditions of child abuse which has the special characteristic of a hidden crime. Nearly 40 years later, finally in Japan, "the Law concerning the Prevention and Others of Child Abuse (the Child Abuse Prevention Law)" was passed and effected at the plenary session of the House of Representatives on May 17, 2000. Since the enforcement of the Law, the number of acknowledged cases of child abuse and the number of arrests have been increasing rapidly, so it is true that the very enactment of the Law has promoted the notifications of child abuse cases and the arrests of abusers. It is also true that in the Japanese society where Confucian ideas still remain in people's mind, like in Korea, child abuse by its own parent was a taboo which we should not talk about or even think about. However, realities were opposite. In this paper, I will discuss the role that criminal punishment should play to prevent child abuse, while grasping the actual conditions of child abuse today and the Japanese ideas that have led to such conditions. As a conclusion I would like to propose the active introduction of punitive provisions of the laws by demonstrating that conventional punishment which emphasizes its function of sanction should emphasize its function of forming the new sense of norms in child abuse and furthermore that punishment should actively perform its supplementary function to facilitate welfare-oriented intervention by the government going beyond its general preventive function. Contents 1. Introduction-Actual Conditions of Child Abuse 2. The Abuse Prevention Law and Punishment 3. The Role of the Criminal Law in Child Abuse 4. Conclusion-the New Function of the Criminal Law
  • 小川 富之
    原稿種別: 本文
    2003 年 40 巻 1 号 p. 79-91
    発行日: 2003/11/05
    公開日: 2017/11/01
    ジャーナル フリー
    Recent biomedical advancements have significantly influenced child birth in several ways. For example, artificial insemination, in vitro fertilization, surrogacy and most recently cloning. There are people all over the world who cannot have children naturally. In Japan around ten percent of women are said to be infertile. In Japan artificial insemination both by husband and by donor and IVF limited to husband and wife are commonly being conducted by Obstetric and Gynecology clinics. Other assisted reproductive technologies are prohibited by the Japan Society of Obstetrics and Gynecology. However, there are no regulations to control the boundaries of use of this technology. Further, there are no laws to decide the parent-child relationship in such cases. In reality, there are cases reported outside these boundaries. For example, a doctor performed IVF for an infertile woman using her husband's semen and an egg provided by her younger sister. Another case involved a younger sister acting as host mother for her elder sister after IVF between husband and wife. A separate case involved the birth of a child by IVF using the husband's semen after the husband has passed away. These cases are not expected to be performed as they breach the regulations. There are difficulties to decide the relationship between the parents and child at this stage. On April 10, 2003, the Assessment Subcommittee for Advanced Medical Care of the Health Science Council (within the Ministry of Health, Labour and Welfare) released its final report for law reform. The report concluded that assisted reproductive technologies including artificial insemination using semen from the husband or a donor, and IVF using semen from the husband or a donor and that using an egg provided by the wife or a donor are accepted. However, the committee prohibits child birth by a woman other than the wife with penalty. If the child wishes to know their origin the information concerning the donor should be made available. The donor should be a third party not including a certain extent of relatives such as brothers and sisters. Semen, eggs and embryos should not be provided commercially. On July 15, 2003 the Subcommittee for Parents and Child Relating to Assisted Reproductive Technology released an interim report. The report included the following points' (1) in the case of assisted reproductive technology including that using donor semen or eggs, the mother of the child is said to be the woman who raises the child. (2) Regarding the relationship between father and child, if the husband agreed with the use of the assisted reproductive technology, the husband should be the father of the child. (3) it is prohibited to request acknowledgement from the person who provides the semen. In Japan new regulations are expected to be enacted by the Diet based on these reports.
  • 神尾 真知子
    原稿種別: 本文
    2003 年 40 巻 1 号 p. 92-102
    発行日: 2003/11/05
    公開日: 2017/11/01
    ジャーナル フリー
    1. Childbirth and Social Security Law After the childbirth rate in 1989 was down to 1.57(so-called "l.57shock" ), the Japanese Government began to take various policies to the diminishing population society. Until that time, the population was the given condition for the social security. But after 1990, the "1.57 shock" made the Japanese Government change its policy to the diminishing population society. In the beginning, the policy to diminishing population society harmonized with the gender equality policy that the Population Council recommended in 1997. However, recently, the former has been against the latter. Therefore, the policy to diminishing population society has been change to the policy to promote childbirth rate. The policy to support the expense of medical care for sterility is an example of such a policy. Moreover, the Government thinks that the Social Security Law is to be a tool to promote the population. But I think that the Social Security Law should be for people who are already given birth. 2. Childcare and Social Security Law The Civil Law prescribes that parents should have the right and duty to take care of their children. When parents can not take care of their children because of work, the Social Security Law provides "childcare-less children" with nursing service. In the diminishing population society, childcare has been taken attention the Government. And mothers who are housewives feel difficult to rear their children. And so, the policy to childcare was enlarged to them. I think that the policy to childcare should be thought from the viewpoint of children.
  • 和田 幸司
    原稿種別: 本文
    2003 年 40 巻 1 号 p. 103-125
    発行日: 2003/11/05
    公開日: 2017/11/01
    ジャーナル フリー
    This paper is intended as an investigation into Kinpuku Temple, which is considered to have functioned as one member of "Shikanohonji", or four temples. The primary concern is to examine how the temple accepted Shin Buddhism and to clarity the characteristics of the process. The target audiences are those who are interested in the history of "buraku," or discriminated communities and Shin Buddhism. The conclusions are as follows' 1. Kinpuku Temple accepted Shin Buddhism as one member of Bukko Temple group. 2. Kinpuku Temple employed a method, which was peculiar to Bukko Temple group, to propagate their religious beliefs and increased the number of believers in Kawata, Kinki.
  • 金川 めぐみ
    原稿種別: 本文
    2003 年 40 巻 1 号 p. 126-141
    発行日: 2003/11/05
    公開日: 2017/11/01
    ジャーナル フリー
    In this paper, I analyze the problem of the habitation in the elderly people who need care in the public long term care insurance ,from the aspect of their residential selections. Elderly people have decided on the place in which he lives, considering various points, such as a state of his body, a situation of nursing care by family members, an economical situation, and a residential environment. Here, I examine this problem from an economical element and a residential element, which are considered that it will carry out appropriate to many elderly people. When determining whether elderly people live in a house, the following problem comes out: the housing repair in the public long term care insurance is not functioning well. The amount of money of housing repair is restricted and its contents are also limited. Neither after-sale service nor information disclosure is also enough. On the other hand, the problems of elderly people live in an institution are as follows: the width of its room and lack of a single room. From the 2002 fiscal year, the system where all single room for all elderly people are secured in the nursing home for them was built. But,since "hotel cost" starts, it may be unable to be paid to poor elderly people. Finally, I propose some points to this problem' administration's severe supervision, progress of information disclosure, and the education of care managers in the public long term care insurance.
  • 加藤 佳子
    原稿種別: 本文
    2003 年 40 巻 1 号 p. 142-157
    発行日: 2003/11/05
    公開日: 2017/11/01
    ジャーナル フリー
    Maltraitance d'enfants est le probleme aussi grave en France qu'au Japon. En France, deja en 1898, la loi a entendu reprimer les abus de l'exercice de la puissance paternelle en donnant au tribunal civil le pouvoir de prononcer la decheance des droits des parents auteurs de mauvais traitements sur leurs enfants. Depuis la legislation de cette loi, plus de 30 lois et circulaires sur la prevention de maltraitance d'enfants ou la protection d'enfants maltraites ont ete mis en vigueur. Au plus, non seulement la legislation mais aussi la politique sur ce probleme merite d'etre note. Le systeme de cooperation et de coordination entre administration comme ASE(=Aide sociale a l'enfance), autorite judiciaire et section civile comme association sur ce probleme est complet. Surtout l'activite des associations est merveilleux. Cette etude a pour but d'introduire l'actualite de la maniere comment on fait face a la maltraitance d'enfants en France et d'en analyserle probleme pour qu'il peut donner quelques suggestions a la maniere de traiter ce probleme au Japon.
  • 笠原 英彦
    原稿種別: 本文
    2003 年 40 巻 1 号 p. 158-165
    発行日: 2003/11/05
    公開日: 2017/11/01
    ジャーナル フリー
    The document on public health presented by Dr.Sensai Nagayo contained great fruits of his new experiences in the 19th century America. So such a new knowledge from the fields of microbiology and other medical sciences was applied in the public health policy of early Meiji Japan. Especially many scientists and public administorators were interested in the relation between public health and civil engineering because main cities of east coast adopted the same technology. In the early Meiji period, the number of Colera sufferers exploded and the disease grew beyond the confines of the cities of Yokohama and other open ports. Many members of Dainihonshiritueiseikai, Kanehiro Takaki, Kyuichiro Nagai, and Toan Matsuyama discuss the effectiveness of civil engineering for public health, so called Eisei Kouji. In this report, I focus on Yokohama waterworks and Kanda sewer. In case of Yokohama, the construction expenses defrayed out of National Treasury. Owing to freigners' strong request, it went well smoothly. Because the government gave waterworks priority, the planning of sewers was deadlocked.
  • 齋藤 康輝
    原稿種別: 本文
    2003 年 40 巻 1 号 p. 166-176
    発行日: 2003/11/05
    公開日: 2017/11/01
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    1 The location in question As for the member of the Diet, it is originally hoped that he(she) acts as "a representative of whole country people". However, actually, the action is restricted by a political party. By this report, I want to examine many problems around such a member of a party qualification and a member of the Diet qualification from a perspective of study of the constitution. 2 Relation of a member of a party qualification and a member of the Diet qualification in Japan (1) Sanctions of a case of party decision violation (2) When a member of the Diet change the party 3 A problem of a member of a party qualification and a member of the Diet qualification in Germany 4 A summary In Germany, the conclusion charge account that was different from Japan does a problem of the seat loss by transference of a member of the Diet by a federal level, and, besides, it is argued in various ways still. I think that there is a problem very much about law revision of this time in Japan(revision of the Public Officers Election Act / the Diet Act , 2000).
  • 長瀬 二三男
    原稿種別: 本文
    2003 年 40 巻 1 号 p. 177-196
    発行日: 2003/11/05
    公開日: 2017/11/01
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    1. The Points in Argument 2. The Main Forms of the Real Estate Transaction and the Application of the Law 3. A Legal Obligation to Explain the Important Things as a Real Estate Trader (1)The Extent of a Real Estate Trader's Obligation to Explain (1) Authority to Seller or Lender (2) Registered Right (3) Restrictions Imposed by Low (4) Quality of the Real Estate (5) Environment of the Real Estate (6) Tax on the Real Estate Transaction (2) The Legal Responsibility for a Breach of Obligation (1) Real Estate Dealer (2) Real Estate Broker (3) The Relation between Dealer and Broker (3) The Extent Applied the law of Real Estate Transaction (1) Non-trader of Real Estate (2) Selling Forest or Field (4) The Time to Explain the Important Things 4. Application of the Consumer's Contract Law
  • 西住 徹
    原稿種別: 本文
    2003 年 40 巻 1 号 p. 197-205
    発行日: 2003/11/05
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2003 年 40 巻 1 号 p. A1-
    発行日: 2003/11/05
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2003 年 40 巻 1 号 p. A2-
    発行日: 2003/11/05
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2003 年 40 巻 1 号 p. A2-A3
    発行日: 2003/11/05
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2003 年 40 巻 1 号 p. A4-A5
    発行日: 2003/11/05
    公開日: 2017/11/01
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  • 原稿種別: 文献目録等
    2003 年 40 巻 1 号 p. A6-A25
    発行日: 2003/11/05
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2003 年 40 巻 1 号 p. App2-
    発行日: 2003/11/05
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2003 年 40 巻 1 号 p. App3-
    発行日: 2003/11/05
    公開日: 2017/11/01
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  • 原稿種別: 表紙
    2003 年 40 巻 1 号 p. Cover3-
    発行日: 2003/11/05
    公開日: 2017/11/01
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  • 原稿種別: 表紙
    2003 年 40 巻 1 号 p. Cover4-
    発行日: 2003/11/05
    公開日: 2017/11/01
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