法政論叢
Online ISSN : 2432-1559
Print ISSN : 0386-5266
41 巻 , 1 号
選択された号の論文の30件中1~30を表示しています
  • 原稿種別: 表紙
    2004 年 41 巻 1 号 p. Cover1-
    発行日: 2004/11/15
    公開日: 2017/11/01
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  • 原稿種別: 表紙
    2004 年 41 巻 1 号 p. Cover2-
    発行日: 2004/11/15
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2004 年 41 巻 1 号 p. App1-
    発行日: 2004/11/15
    公開日: 2017/11/01
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  • 辻 雄一郎
    原稿種別: 本文
    2004 年 41 巻 1 号 p. 1-26
    発行日: 2004/11/15
    公開日: 2017/11/01
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    This article focuses on the question why it is important to study the free speech in cyberspace for the future of the Constitutional Law. The author insists that this topic give lawyers, judges and scholars the opportunity for asking why free speech is protected in the Constitutional Law. Why does society need free speech? This is a complicated question. The Constitutional Law scholars in the United States have already started to research this field. With their help, the author challenged that free speech in cyberspace should not be the "Law of the Horse". The Most important question is why the free speech is in the Constitutional Law.
  • 樫原 義比古
    原稿種別: 本文
    2004 年 41 巻 1 号 p. 27-38
    発行日: 2004/11/15
    公開日: 2017/11/01
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    Freedom of religion has a special place in American constitutional protections. The importance of this concept can be traced thoroughly to the United States'historical background as a country founded by refugees fleeing religious persecution. The significance placed by the founding fathers on religious freedom as an American tenet is articulated in the first amendment. But religious freedom in the context of the religious upbringing of children engages the most complicated emotions. When religion is part of a custody dispute, problems become more difficult to resolve. Because religion sits at the core of many basic attitudes and values of children, today's rise in the rates of interfaith marriage and divorce inevitably has been an increasing number of disputes over the religious upbringing of children. As a result, increased attention has been focused on the spiritual welfare of children. This Paper examines the opinion of the court in the spiritual welfare of the child when making child custody determinations. This Paper demonstrates that the moral and spiritual welfare of the child has been considered by the court in rendering custody decisions and courts have taken this to mean that religious issues play a part in custody decision-making.
  • 間宮 庄平
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    2004 年 41 巻 1 号 p. 39-52
    発行日: 2004/11/15
    公開日: 2017/11/01
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    My previous articles have paid a great deal of attention to the legislative presidency, especially the presidential veto powers in the congressional process. This legal institution (U.S. Const. Art. 1, §7, cls. 2, 3. =Veto system) is frequently as a dominant characteristic of American government. The presidential veto powers constitute the sole instrument against the legislative process for the President's legislative power. This work discusses one of the principal formal links between the President and Congress. The veto powers is often maintained to be of crucial importance to the President in his effort to influence Congress.
  • 遠藤 崇浩
    原稿種別: 本文
    2004 年 41 巻 1 号 p. 53-66
    発行日: 2004/11/15
    公開日: 2017/11/01
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    "War of the next century will be over water." In 1995, a high-rank officer of the World Bank made this comment and many newspapers and magazines picked it up as news. Now, as a lot of people in many parts of the world face severe water scarcity, there is talk of conflict over international rivers, though it is hard to realize such a water problem in Japan where it has been said that "water and security are free." Fear of such a conflict is getting bigger and bigger as the major ways to use river have been changing from navigational uses to non-navigational ones (ex. dam, water diversion for a large irrigation system and so on.). It's because the latter does more harm with high probability than the former to water quantity and quality that reach downstream countries. Especially, when an upstream county develops river on the notion called the Harmon doctrine, conflict of interests between riparian countries tends to be acute. The Harmon doctrine means that each riparian country has exclusive sovereignty over the part of international river which exists in its territory. This notion implies that an upstream country have the right to do whatever it chooses with the water regardless of its effect on other riparian countries. So it is often called "the logic of upper riparian countries." But there are controversies over whether there have ever been practices of the doctrine. This paper is focused on Turkey's management policy of the Euphrates-river and shows the policy is based on the Harmon doctrine.
  • 清水 唯一朗
    原稿種別: 本文
    2004 年 41 巻 1 号 p. 67-77
    発行日: 2004/11/15
    公開日: 2017/11/01
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    In Japan, bureaucrats have been usually recruited to run for the Diet, and moved from successful bureaucrats to elective public office. At a first glance, the idea of "the separation of politics and administration" seems to be ignored here, but this feature is a political phenomenon particularly unique to Japanese political culture, and rooted deeply in its own historical experience. During the Taisho era (1912-1926), when the political phenomenon mentioned above "partilization of bureaucrats" - took place so often, people tend to think that the phenomenon indicated the party cabinet would be possible, and also strongly impressed that Hanbatsu was in declining from position of influence. The purpose of this article is to focus upon, and will seek the explanation of the relationship between the political parties and the progress of the constitutional government in Taisho era-mainly Hara cabinet (1918-1922). At that time, even Hanbatsu was falling into decay, Genro still had a tremendous influence in politics, especially in the time to select the Prime Minister. So political parties had to inevitably coopt with political actors who could stand inside the bounds of Genro's acceptance; bureaucrats in higher positions were their only plausible choice. Hence, those bureaucrats were picked as party members, though this was largely a political parties' ploy to achieve their goals. For bureaucrats, indeed, they either had no choice but to become members of political parties because their very survival was depended highly upon whether they would be able to swim with the tide of the constitutional government.
  • 村井 淳
    原稿種別: 本文
    2004 年 41 巻 1 号 p. 78-88
    発行日: 2004/11/15
    公開日: 2017/11/01
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    This article analyzes the contents of the Russian criminal statistics that began to be released to the public from end of the Soviet era and examines the changes of the Russian society behind the crimes. There are three particular periods when crimes in Russia rapidly increased from 1982 to 2002. The first period is 1983, but the increase rate is not as prominent as the other two periods. The second period is 1989-1992, before and after the collapse of the Soviet Union, when the number of crimes increased because morality and social order collapsed due to the following: introduction and expansion of the market economy, the social maladaption of the returned soldiers from Afghanistan, and the confusion brought by the collapse of the Soviet Union. From 1989 to 1992, atrocious crimes such as murders, rapes and robberies especially increased. The third period is 1998-1999. The financial crisis in 1998 deprived millions of people of their savings and wages. Today the most serious crimes are crimes related to drugs, psychotropic medicines and deadly poisond. Drugs such as heroin and poppy seeds come to Russia mainly from Afghanistan and Tadzhikistan through Uzbekistan, Kazakhstan, Kyrgyz and Turkmenistan, and the part of them flows out to Ukraine and Western Europe. Drugs are expanding to smaller cities in Russia, not to mention the large cities. Now not only does the Russian government have to reinforce anticrime measures, but also have to reinforce the redistribution of wealth for the week, to promote national welfare, to regulate corruption of government officials and to promote tax collection in order to reduce the number of crimes.
  • 堀江 湛
    原稿種別: 本文
    2004 年 41 巻 1 号 p. 89-100
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  • 記載無し
    原稿種別: 本文
    2004 年 41 巻 1 号 p. 101-158
    発行日: 2004/11/15
    公開日: 2017/11/01
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  • 本田 耕一
    原稿種別: 本文
    2004 年 41 巻 1 号 p. 159-163
    発行日: 2004/11/15
    公開日: 2017/11/01
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    The Japanese Association of Law and Political Science held its 100^<th> Seminar at Kansai Gaidai University on June 19^<th> and 20^<th> in 2004. The symposium titled "Prolonged Recession and the Consumer" took place from 9:30 am to 12:00 noon on the 20^<th>. Since the collapse of the "bubble economy" of the early 1990's, the Japanese society has experienced prevailing recession, and citizens don't feel even today that the economy has really improved yet. Under these circumstances, it is reported that there has been a rapid increase of the incidents involving the consumer and the damage continues to spread. Therefore, the symposium focused on these consumer troubles. Four panelists from different disciplines reported their studies and a lively discussion followed.First, Professor Kazutaka KOJIMA (Chubu Gakuin University) made a report entitled "A review of consumer administration in Japan-a history of the administration and The Consumer Fundamental Act (2004)-". He illustrated the increasing consumer troubles based on a recent study, and analyzed the current consumer protection measurers that the national and local governments have in place. The Consumer Protection Fundamental Act of 1968 was revised and the Consumer Fundamental Act was enacted on May 25, 2004. Professor Kojima explained that with this revision, the national government's policy changed from "protection" of the consumer to "support" of the consumer for "self-reliance". Therefore, he stressed the importance of the consumer education by the government. Secondly, Professor Yoshiyuki NAKAJI (Ohtsuki ,City University) gave a report on "Resolution and claim handling with respect to the consumer trouble". He discussed the importance of speedy and low-cost solutions to resolve consumer troubles especially during the recession. He analyzed various resolution methods in detail with different features and stated that each method has its own strength and weakness. He concluded that each consumer has to have a clear understanding of his or her needs and priorities, so each person can choose the best method. Next, Professor Hiromasa HAYASHI reported on "On the Criminal Approach to the Consumer Problems". He listed four patterns of business crimes committed in the economic expansion period between the 1970's and the early 1990's. Since it was difficult to apply the traditional provisions such as fraud and misappropriation charges to these crimes, special new legislation was made to address them. With regard to the economic crimes involving the consumer since 1990's, Professor Hayashi assumed that blackmail or fraud charges could be made, but he also pointed out that the most critical part is overcoming the expected difficulties to substantiate the charges. He then proposed establishing a victim's relief fund by confiscating the proceeds from such crimes. The last speaker was Professor Masaki SAKURAMOTO, reporting on "Consumer Bankruptcy -Mainly from the View Point of Discharge-". After pointing out the sharp increase of consumer bankruptcy cases, Professor Sakuramoto introduced some typical profiles of the bankrupt consumer. He discussed the legal and social disadvantages as well as the rights and the obligations of the bankrupt individual. Furthermore, he argued that the bankrupt have the right for discharge in bankruptcy, therefore they should be allowed to be forgiven for their debts, if there is a possibility for them to rehabilitate. He concluded that the only exception should be when the individual was convicted of any bankruptcy crime, in which case, the decision should be made taking all the facts into consideration. After the reports by the panelists, Professor Yoshinobu ARAKI (Musashino University), Professor Koutaku ISHIDOU (Chukyo University), and Professor Koichi

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  • 小島 和貴
    原稿種別: 本文
    2004 年 41 巻 1 号 p. 164-182
    発行日: 2004/11/15
    公開日: 2017/11/01
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    I presented this report at a symposium of The Japan Association of Legal and Political Sciences. I The trend of consumer problems in Japan There was a report about problems facing consumers in Japan recently. Consumer troubles are increasing, but we have to also point out that there are troubles that we have seen constantly. II Consumer laws We have laws to protect the consumer through the responsibility of the state. Businesses have the responsibility to cooperate with the state and local government in the execution of their policies concerning the protection of consumers. But some businesses can't. III The responsibility of the state and local governments The state has the responsibility to establish and execute integrated policies concerning the protection of consumers. Local governments have the responsibility for planning policies paralleling those of the state as well as for planning and executing policies concerning the protection of consumers. IV The Consumer Fundamental Act The Consumer Protection Fundamental Act was revised in May 2004.
  • 中路 喜之
    原稿種別: 本文
    2004 年 41 巻 1 号 p. 183-194
    発行日: 2004/11/15
    公開日: 2017/11/01
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    What kind of influence may "the prolonged depression" have on the resolution of the consumer trouble? Under the prolonged depression, people tend to hope that a trouble will be resolved more "quickly" and "inexpensively," I think. Many types of dispute resolution are available in this society. I believe that understanding the advantages and shortcomings of each model will lead to selection of a better resolution. Here, I will outline several types of dispute resolution including ADR that is of a recent topic, and explain general features thereof. First of all, the important thing, in the resolution of a consumer trouble, is that you have to understand and determine the minimums that you will not compromise, and then that you will choose the best method, in light of such determination, out of all the types available.
  • 林 弘正
    原稿種別: 本文
    2004 年 41 巻 1 号 p. 195-208
    発行日: 2004/11/15
    公開日: 2017/11/01
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    In this article, some problems of the business crimes are argued from the viewpoint of the consumer protection. From the latest data of National Police Agency, there are many victims of the illegal business crimes and the huge damages amount to 42.619.630.000yen last year. Our society is challenged how to support the many underdogs.
  • 櫻本 正樹
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    2004 年 41 巻 1 号 p. 209-231
    発行日: 2004/11/15
    公開日: 2017/11/01
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    The current state of the consumer bankruptcy was first taken up from the official statistics and, next, was taken up bankrupt's legal status and, the bankruptcy discharge that is the most important theme in the consumer bankruptcy was taken up at the end. First of all, 2003 year is 221,741 in the number of the voluntary bankruptcy of the natural person who seems the nearest number of consumer bankruptcies. It has increased by 30,325 more than the previous year. If the average bankrupt image in the consumer bankruptcy is briefly brought together based on the investigation in 2002, the ratio of the man and woman is almost in halves, the age is about 45.8 years old on the average,the occupation is salaried employee including the part-time job etc,the revenue is about 105,000 yen in month, and the reason why they went bankrupt is that the hard living and the low income are major causes. The indebtedness is about 24 million yen. Next, it is possible to divide into a legal disadvantage and a social disadvantage roughly as a disadvantage to the bankrupt caused as an effect of the adjudication. Continuously bankrupt's right and duty were described. The right includes the right of the discharge and so on. There is a bankrupt's duty of accountability of details that went bankrupt. And there is also a cooperation duty to the bankruptcy proceeding and the discharge procedure. Finally, the discharge makes the bankrupt free from the debt except some expections, he owed at the time of bankruptcy order. The discharge is positioned as a system that has an important function of essentiality for the debtor's economical fresh start today. Concluding it, if the possibility of some regeneration is seen by the bankrupt, the discharge should be permitted by the court even without considering other matters because the discharge is positioned when it is bankrupt's right. But in certain case the right cannot be unrestricted.
  • 茨木 正治
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    2004 年 41 巻 1 号 p. 232-244
    発行日: 2004/11/15
    公開日: 2017/11/01
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    This paper attempts to review what political cartoons are and how they have been read and to demonstrate how they should be read in the 156 Diet coverage. Newspaper cartoons (including political cartoons) have been suffered from problems of their newspapers. Cartoons ara more necessary to be recognized and examined among newspaper texts. On cartoon satire, newspaper cartoons are considered less effective to mass public than to some people. In political cartoon research, Symbolic Convergence Theory(S.C.T.), Membership Categorization Device(M.C.D.) and Social Construction of Reality in Mass Media(S.C.R) make a new look at political cartoons in terms of rhetoric and social constructionism. On their approaches it is examined how political cartoons represent in the 156 Diet. Among issues in the Diet was the contingency-related bills. The bills,on consensus and legislation, were symbolized by political cartoons in Asahi, Mainichi, and Yomiuri for the political trade between L.D.P (Liberal Democratic Party) and D.P.J (Democratic Party of Japan). The themes of cartoons were overlapped with their newpaper coverages.
  • 林 寛一
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    2004 年 41 巻 1 号 p. 245-254
    発行日: 2004/11/15
    公開日: 2017/11/01
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    This paper analyses the results of the investigation on the self-recognition of communication style and leadership, the subjects of which were public servants in administrative positions in Ibaraki prefecture and the managers of the Ibaraki nursing association. By 'self-recognition', I mean how the managers recognize their own communication style and how they recognize their own leadership. In this analysis I intended to capture the differences between the different groups of managers. First, from the result of analysis it was found that the formal communication style was considered to be important by public servants in administrative positions, and the informal communication style was considered to be important by the managers in nursing organizations. Second, the result showed that the performance values of the public servants in administrative positions were high, but the values of maintenance of personal relations were low. In the framework of the PM theory proposed by a social psychologist in Japan, the public servants in administrative positions are categorized into the Pm type. In contrast, all the values of the peculiar vector of nursing managers were high. It follows that they are categorized into the PM type.
  • 葛西 まゆこ
    原稿種別: 本文
    2004 年 41 巻 1 号 p. 255-269
    発行日: 2004/11/15
    公開日: 2017/11/01
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    This article analyzes the impact of welfare reform and discusses the jurisprudence of welfare rights in the United States. A close analysis of welfare reform in the United States allows us to explore the possibility of adopting similar types of welfare reform with the exception of time-limited assistance in Japan. However, this article acknowledges that welfare reform in Japan must be drafted within the constraints of Article 25 of the Japanese Constitution. In light of this constraint, it is argued that a factor as important as independence should be included in the interpretation of Article 25, in order to clarify the meaning of "the minimum standards of wholesome and cultured living" in the Article. Further, the public assistance system in Japan should be improved to encourage welfare recipients to work to the greatest extent possible. This interpretation allows the State to legislate welfare reform without infringing upon an individual's constitutional right to receive State welfare. "The Personal Responsibility and Work Opportunity Reconciliation Act of 1996" (PRWORA) became a law in the United States in the same year. This comprehensive legislation changed the nation's welfare system into one requiring work in exchange for time-limited assistance. It led to the creation of the Temporary Assistance for Needy Families (TANF) program. According to the literal interpretation of 42 U.S.C § 601 (b), the law marked the end of Federal entitlement assistance. The law provides States the flexibility to design individual TANF programs. As, a result of these programs, the number of recipients of funds from the TANF decreased considerably. The Supreme Court of the United States has regarded welfare entitlements as like property since Goldberg v. Kelly (1970). However, as a result of the Court's application of the rationality review because of the character of like property, it was held that the maximum-grant regulation was not in violation of the equal protection clause in Dandridge v. Williams (1970). In Saenz v. Roe (1999), the Court reaffirmed Shapiro v. Thompson (1969), though on new grounds, and invalidated a California statute. This indicates that the Court has maintained its view on welfare entitlements despite 42 U.S.C. § 60l(b). This also indicates that similar welfare reform is possible within the confines of the rights based on the Constitution of Japan by maintaining a balance between the rights of welfare recipients and the State's interests in implementing the welfare policy. In conclusion, this article notes a factor as important as independence should be added to Article 25 in order to clarify its meaning. Further, the public assistance system should improve the job assistance program for welfare recipients in Japan.
  • 酒井 英一
    原稿種別: 本文
    2004 年 41 巻 1 号 p. 270-282
    発行日: 2004/11/15
    公開日: 2017/11/01
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    This study aims at revealing the ontological nature of the security alliance of the United States and Japan by examining its history in postwar period. This article here utilizes revised security community theory of Emanuel Adler and Michael Barnett that is combined with the Constructivism. According to this theory, the alliance passes three stages. Phase 1: Nascent is the first stage that multiple states seek alliance in the face of the current menace. And those allied states expand the cooperative relations in economy and politics that are derived from their strategic interests. Phase 2: Ascendant is the next stage that the allied states construct the web of institutional network in military operations and its arrangements. Meanwhile, the alliance sees lowered threat of common enemy and consolidates diplomatic partnerships. Phase 3: Mature is the final stage that bilateral alliance seek its transformation for multilateral alliance. Furthermore, the alliance recognizes the altered nature of common threat is altered and faces with necessity of redefining the threat. This study will examine history of U.S.-Japan security alliance divided into three periods: 1945-1970, 1971-1989, and 1989-present. In so doing, this article will examine whether the U.S.-Japan alliance fits into the model of the revised Decutch model. This means that this study will reveal the nature of evolved strategic relationships between the United States and Japan.
  • 原稿種別: 付録等
    2004 年 41 巻 1 号 p. A1-
    発行日: 2004/11/15
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2004 年 41 巻 1 号 p. A2-
    発行日: 2004/11/15
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  • 原稿種別: 付録等
    2004 年 41 巻 1 号 p. A3-
    発行日: 2004/11/15
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  • 原稿種別: 付録等
    2004 年 41 巻 1 号 p. A3-A4
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  • 原稿種別: 付録等
    2004 年 41 巻 1 号 p. A5-A6
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  • 原稿種別: 文献目録等
    2004 年 41 巻 1 号 p. A7-A25
    発行日: 2004/11/15
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  • 原稿種別: 付録等
    2004 年 41 巻 1 号 p. App2-
    発行日: 2004/11/15
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2004 年 41 巻 1 号 p. App3-
    発行日: 2004/11/15
    公開日: 2017/11/01
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  • 原稿種別: 表紙
    2004 年 41 巻 1 号 p. Cover3-
    発行日: 2004/11/15
    公開日: 2017/11/01
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  • 原稿種別: 表紙
    2004 年 41 巻 1 号 p. Cover4-
    発行日: 2004/11/15
    公開日: 2017/11/01
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