法政論叢
Online ISSN : 2432-1559
Print ISSN : 0386-5266
40 巻 , 2 号
選択された号の論文の24件中1~24を表示しています
  • 原稿種別: 表紙
    2004 年 40 巻 2 号 p. Cover1-
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
  • 原稿種別: 表紙
    2004 年 40 巻 2 号 p. Cover2-
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
  • 原稿種別: 付録等
    2004 年 40 巻 2 号 p. App1-
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
  • 高野 雅信
    原稿種別: 本文
    2004 年 40 巻 2 号 p. 1-35
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
    "The Educational System" was distributed on August 3, Meiji 5. On this notification, Japanese educational system was reformed. It was made clear by many research works that the principles of the system, all people having to strive to study, compulsory education system, and each paying his own school expense, laid the foundation of the modern education in Japan. In Myodo Prefecture (Tokushima Prefecture at present), a reform of the education system was carried out on and after February, Meiji 6. The No.1 Elementary School, the No.2 Elementary School, and the No.3 Elementary School were established one after another. Moreover, Myodo Prefecture established a model elementary school based on "The Educational System" in each "Middle School Division", provided a financial aid to those school, and strove to spread the curriculums and train their teachers. The number of pupils of elementary school in Awa province occupied about one sixth of whole Myodo Prefecture by about 10,700 in Meiji 6. The number of teachers of the public elementary schools was 160, and that of the private elementary schools was 127. What the number of pupils and that of teachers are not enough is in common.
  • 片山 由美
    原稿種別: 本文
    2004 年 40 巻 2 号 p. 36-49
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
    Due to the enforcement of "Long-Term Care Insurance", reform measures to make contracts was established. As "Long-Term Care Insurance" were enforced, the social welfare policy needed new thoughts on taking more effective safety measures. Among others, the main theme for discussion was the urgent necessity of coping with accidents in a facilities. In this paper, first of all we would like to discuss how to avoid accidents that do not entail legal responsibility. Secondly, we also would like to suggest the improvement of service to prevent accidents in terms of the following three points: 1. To arrange a training program for workers who do not have any qualifi cation to acquire a certain kind of certification. 2. Legal enforcement that demands employees at facilities to have care taker license or home helper raining. 3. To ensure exclusive legal protection not only for the title of care taker but also for his/her job. Germany has been the leader in confirming the quality of service and care by law at the national level. Japan must learn from other advanced countries to regulate the quality of service and life according to the law.
  • 小田 尚美
    原稿種別: 本文
    2004 年 40 巻 2 号 p. 50-60
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
    In recent years, the various disasters and accidents occur frequently in Japan, and people's life is exposed to danger. Many people who live in Japan have believed that Japan is a comparatively safe country for a long time, and have lived without feeling danger for daily life so much. They begin to notice how ensuring safety of life is important because many disasters and accidents exceeding the range of their imagination happened. Especially, in the time of natural disasters, the present measure about the ensuring safety is fixed about the about reorganization of a life after natural calamities as system although the measure of the community-based disaster mitigation stage has never rooted. This article verifies the measure about ensuring safety for people in community at the time of natural disasters, and shows the problems which administration, community and individual should solve.
  • 小林 みゆき
    原稿種別: 本文
    2004 年 40 巻 2 号 p. 61-72
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
    Participants in civic movement sector have been considerably less influenced as one of Japanese political actors. The main reason for it is that their activities are not fully institutionalized, and their absolute population is small. Some people are, however, politically active for resolving social conflicts. They could be handled as different people, and not be explained by the rational choice theory. This paper demonstrates why they can be active in political participation by making full use of our data. But they can't take a unitary description, their civic consciousness are composed of plural motives. The most typical motive is a civic duty that is descendant from influential ancestors as their reference group, and they have the normative consciousness canalized by family model. The rest of the examinants have strong political principle and ideology that formed in their youth by contact with honorable others. But these motives are not exclusive one another and have the interface between them. It could be supposed to set 'the composite citizenship' to appreciate their civic participation.
  • 土屋 孝次
    原稿種別: 本文
    2004 年 40 巻 2 号 p. 73-87
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
    This article examines the judicial discipline systems in Japan and the USA. Part 1 provides the practical and theoretical problems of our procedures that are demonstrated in recent cases, such as Fukuoka High Court judge case (2001) and Tokyo High Court Judge case (2001). In the USA, serious questions have been raised about Congress's ability to deal adequately with the rise in judicial impeachment. Then part 2 analysis the federal impeachment power of the U.S. constitution and the discipline system of the federal statute,the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980. In conclusion,this article consists that the need to develop comprehensive judicial reform strategies including the judicial discipline.
  • 重村 博美
    原稿種別: 本文
    2004 年 40 巻 2 号 p. 88-101
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
    Preface 1 The Historical Background of Writ of Certionari (1) Origin of Certiorari Jurisdiction (2) Judiciary Act of 1925 and 1988 2 The Bases to Issue the Writ of Certionari (1) The Rules of Supreme Court (2) Practical Examination of Bases for the Writ of Certiorari 3 Discretion of U.S. Supreme Court Justices and the rule of law (1) Bush v. Gore (2) Examination of political question doctrine in Bush v. Gore (3) Discretion of U.S. Supreme Court Justices and the rule of law Conclusion
  • 福永 英雄
    原稿種別: 本文
    2004 年 40 巻 2 号 p. 102-114
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
    The term 'right of access' essentially has two sides of implication. One is 'disclosure of information,' and the other is 'right of access to press.' The former has been given concrete shape. But, in Japan, the latter has not been legislated. Japanese courts have not admitted the latter side embodied by the governmental authority. The concept 'right of access' should be expanded into 'policy participation,' I insist. Because the stance 'access' has largely aimed to influence the public policy making. And it may be appropriate that <<actors concerned>> have <<right of policy participation>>. For they know the issue under consideration better than any other <observers>. (Of course, communication among actors concerned, citizens and authorities is indispensable.) At the foot of the paper, I suggest the systematization of <<policy participation of actors concerned>>.
  • 小野 義典
    原稿種別: 本文
    2004 年 40 巻 2 号 p. 115-135
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
    After the end of Cold War, the Central European Countries which the political situation had made the Eastern Europe wished to come back to western European society. In may 1. 2004, the Central European Countries will join to the European Union (EU). I could say that they accomplish their cherished desire. And this is not only for the Central European Countries, but also for the EU. Because the EU has the direction of "Europe's Dual Enla-rgement". But, with the Enlargement, they have some problems. This is the issue of that the domestic law may be conflict with the EU law order which are the Treaty establishing the European Community and "acquis communautaires". The matter of importance in this paper is that the domestic law which has rights and duties between the Country which makes this law and Non-EU Countries has the power of demand in reconvention. This paper reviews an issue that the domestic law may be conflict with the EU law order, when the Central European Countries join to EU. Of course Hungary is one of the above Central European Countries. Especially, this argument focuses to the issue of the EU Law order and Hungarian domestic law which is Act on Hungarians living in neighbouring states. Because this Act apply to persons declaring themselves to be of Hungarian ethnic origin who are not Hungarian citizens and who reside in Non-EU Countries the Republic of Croatia, Romania, Serbia and Montenegro or Ukraine.
  • 大八木 時広
    原稿種別: 本文
    2004 年 40 巻 2 号 p. 136-148
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
    In this article, the appointment of the European Commission is argued. First of all, we discuss about the appointment procedure in the treaties of the European Union. In the appointment process, we analyze political context in the appointment, especially the resignation of the Santer commission and the monetary integration. In the section about the president of the Commission, the conditions of the appointment are analyzed. For example, the vision of the european integration, and the political career of the cadidate. In the section about the Commissioners, conditions of the appointment, particularly condition of political partisan, are discussed. In addition, the political practice of the appointment and the impact of the governments of the member states are also important. Still, these governments are very influential in this appointment process. In the final section, the role of the European Parliament, especially the confirmation vote is stressed.
  • 小谷 順子
    原稿種別: 本文
    2004 年 40 巻 2 号 p. 149-167
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
    In 1992, the U.S. Supreme Court struck down an ordinance banning "fighting words", including cross-burning and the display of swastika, that insulted others or provoked violence "on the basis of race, color, creed, religion or gender." In R.A.V. v. St. Paul, the Court stated that the ordinance impermissibly discriminated against unpopular topics within the category of proscribable speech and thus violated the First Amendment of the U.S. Constitution. Although the Court acknowledged that combating racism was in the city's interest, it concluded that the city could not advance that interest by singling out unfavorable speech for punishment and declared the ordinance unconstitutional. In 1993, however, the Court upheld a Wisconsin penalty-enhancement law in Wisconsin v. Mitchell, declaring that the statute only penalized the criminal action, not the idea or speech. After R.A.V. and Mitchell, hate speech regulations of any form were considered impermissible while penalty enhancement laws and their variations were considered permissible, and the lower courts handled the cases before them accordingly. Cross-burning statutes, however, caused confusion, with five statutes being declared unconstitutional and two constitutional. In 2003 the Supreme Court upheld a Virginia statute banning cross-burning with the intent to threaten others in Virginia v. Black. The Court stated that the statute simply singled out the most terrifying type of threat of all types of threat, and therefore it did not discriminate against certain topics or viewpoints as the ordinance in R.A. V. did. This article analyzes these three federal high court cases along with seven state cases, and then compares R.A.V. and Black, and concludes that the two codes both banned controversial topic within proscribable categories and that the Court's handling of the two cases was inconsistent and inappropriate.
  • 真鍋 政雄
    原稿種別: 本文
    2004 年 40 巻 2 号 p. 168-181
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
    In California, there have been efforts to conserve public waters and adjacent shorelines for the use of local residents. Subsequently, errors in administrative procedure in relation to shaping rational public policies have prompted a search for the specific functions within the public trust doctrine. The fundamental rule of the trust doctrine originally proceeds from the nature of property rights under Roman and English law, and its basic concept is the policy of a state to protect its natural resources, in this instance, California trust properties are for the benefit of all its citizenry. The model for judicial skepticism was established in the Illinois Central decision of 1892, which was the most celebrated public trust case in United States history, and has served to protect certain public resources in later cases in California. Furthermore, the doctrine became a guiding principle on the interpretation of Cal.Const, art.X,§4 which indicates clearly that the public has the right to the use of the state's navigable waters. The solution of the legal meaning of Cal.Const.art.X, § 4 is the subject of this article. Therefore, judicial approaches to the trust are essential to the legislative intent of that constitutional provision. To understand the phase of judicial techniques on the basis of the doctrine, it is necessary to consider that each of the following three technical functions' Judicial Control, Land Use Regulation and Balancing, are strongly in favor of environmental conservation. The effect of such functions has been to force the decision-making agencies to actively seek out public interest. The procedural rights are sufficiently exemplified by the developments of the three judicial devices described above. California courts have recognized their own procedural responsibility to safeguard public trust in this context. The procedural responsibility points to so-called "indirect intervention". Legal questions about the public right of access to navigable waters need not be limited to a conventional litigation theory. In their own way, and with their own doctrinal development, the courts were able to form the present decision-making mechanisms. There is the possibility that the California flexible method for safeguarding trust lands might overcome the disadvantages under which the role of the judiciary has traditionally labored. Consequently, it was understood that the procedural rights are included among "the right of way to such water" noted in Art.X, § 4-The Right to Coastal Access. In this article, priority was given to problems of process rather than to problems of substance, with respect to the trust doctrine. The safeguards found in modern litigation in California are therefore not always theoretically airtight. A substantive analysis of public trust law developments in California will have to be conducted in another article.
  • 和田 美智代
    原稿種別: 本文
    2004 年 40 巻 2 号 p. 182-191
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
    Die Anwendung korperlicher Gewalt in Familien weit verbreitet ist. Ziel miisste die Verhinderung der Entstehung von Gewalt sein. Seit dem 8.November 2000 ist in Deutschland die Gewalt aus der Kindererziehung gesetzlich verbannt. Ziel des Gesetz ist die Achtung der Gewalt in der Erziehung ohne Kriminalisierung der Familie. In Konfliktlagen durfen hier nicht Straf verfolgung oder Entzug der elterlichen Sorge im Vordergrund stehen , sondern Hilfen fur die betroffenen Kinder, Jugendlichen und Eltern. Die Norm soil lediglich auf eine Bewusstseinsanderung von Eltern im Sinne einer gewaltfreien Erziehung hinwirken. Dabei sollen die Jugendamter helfen , § 16 Abs.1 Satz 3 SGB XIII; die Neuregelung setz auf das Konzept "Hilfe statt Strafe".
  • 原稿種別: 付録等
    2004 年 40 巻 2 号 p. A1-
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
  • 原稿種別: 付録等
    2004 年 40 巻 2 号 p. A2-
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
  • 原稿種別: 付録等
    2004 年 40 巻 2 号 p. A2-A3
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
  • 原稿種別: 付録等
    2004 年 40 巻 2 号 p. A4-A6
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
  • 原稿種別: 文献目録等
    2004 年 40 巻 2 号 p. A7-A21
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
  • 原稿種別: 付録等
    2004 年 40 巻 2 号 p. App2-
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
  • 原稿種別: 付録等
    2004 年 40 巻 2 号 p. App3-
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
  • 原稿種別: 表紙
    2004 年 40 巻 2 号 p. Cover3-
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
  • 原稿種別: 表紙
    2004 年 40 巻 2 号 p. Cover4-
    発行日: 2004/05/15
    公開日: 2017/11/01
    ジャーナル フリー
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