法政論叢
Online ISSN : 2432-1559
Print ISSN : 0386-5266
43 巻 , 1 号
選択された号の論文の33件中1~33を表示しています
  • 原稿種別: 表紙
    2006 年 43 巻 1 号 p. Cover1-
    発行日: 2006/11/15
    公開日: 2017/11/01
    ジャーナル フリー
  • 原稿種別: 表紙
    2006 年 43 巻 1 号 p. Cover2-
    発行日: 2006/11/15
    公開日: 2017/11/01
    ジャーナル フリー
  • 原稿種別: 付録等
    2006 年 43 巻 1 号 p. App1-
    発行日: 2006/11/15
    公開日: 2017/11/01
    ジャーナル フリー
  • 梶田 叡一, 古橋 エツ子
    原稿種別: 本文
    2006 年 43 巻 1 号 p. 1-14
    発行日: 2006/11/15
    公開日: 2017/11/01
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  • 和田 幸司
    原稿種別: 本文
    2006 年 43 巻 1 号 p. 15-35
    発行日: 2006/11/15
    公開日: 2017/11/01
    ジャーナル フリー
    The primary concern of this paper is to study the Hongwan temple's political development for discriminated temples. The historical materials are the list of "Iko Monto Honmatsu Kumiai" and the condition of the Hongwan temple in the term from the latter modern period to the Meiji Restoration. The target audiences are those who are interested in the history of "buraku," or discriminated communities and Shin Buddhism (in relation with politics). The main findings of this research are as foliows: 1. The Hongwan temple made a new system to control the discriminated temples. The Kousen temple which holded an important post was put under the control. 2. The Hongwan temple got into financial trouble, so needed to control the discriminated temples which had a great economic power. 3. The new control system doesn't mean the distinction for the discriminated temples. We have to understand that discriminated temples can join the total system of the Hongwan temple.
  • 秦 公正
    原稿種別: 本文
    2006 年 43 巻 1 号 p. 36-71
    発行日: 2006/11/15
    公開日: 2017/11/01
    ジャーナル フリー
    In 2004 erlieB Japan das Gesetz zur Forderung der aussergerichtlichen Streitschlichtung. Sein Ziel ist die Forderung der Streitbeilegung durch die privat eingerichteten Gutestellen. Das neue Guteverfahren unterliegt dem genannten Gesetz und den einschlagigen Bestimmungen der einzelnen Gutestellen. Im Gegensatz zum gerichtlichen Vergleich hat eine Einigung aus diesem Verfahren nur privatrechtliche Wirkungen, so dass sie nicht vollstreckbar ist. Ein Verfahrensmangel ist auch bei einer Streitbeilegung durch die Gutestelle nicht ausgeschlossen. Dazu fehlt dem neuen Gesetz eine Bestimmung. Zu prufen ist, ob ein Verfahrensfehler die Streitbeilegung nichtig macht. Ist eine Einigung aus dem fehlerhaften Verfahren-wie ein Gerichtsurteil-anzufechten? Mit dieser Problematik befasst sich diese Abhandlung.
  • 今井 良幸
    原稿種別: 本文
    2006 年 43 巻 1 号 p. 72-91
    発行日: 2006/11/15
    公開日: 2017/11/01
    ジャーナル フリー
    After 1997, in the United Kingdom, devolution had spread to Scotland, North-Ireland And Wales by the Blar Administration and in the recent years, there has been a heightened argument for regionalism in England. In the Scotland, Northern-Ireland and Wales, devolution was put into practice by a Local referendum, the opposing side, regionalism of England aims to create of elected assemblies at eight regions. But in comparison with the Scottish, the English had a fairly low interest in regionalism and its realization doesn't get up to the present. Devolution for Scotland, Northern-Ireland and Wales are similar in terms of legal Basis, but these devolved institutions have different competences in terms of legislative power and effect in the Westminster Parliament. The former Scotland and Northern-Ireland have a primary legislation while Wales has the secondary legislation, the essence being that Scotland and Northern-Ireland can cope with original problems by the primary legislation, but Wales can only do so by the secondary legislation which is influenced by the parent law legislated by the Westminster Parliament. The latter is called, "West Lothian Question". This question has not been solved yet and even possible avenues for solving this situation have yet to be explored. On the other hand, in England, there is the creation of a new tier of government aimed at buttressing the regionalism position after publication of the titled "Your Region,Your Choice". This new tier of government has elected assembly, but no mayor. The aim of this government is to coordinate existing organization, RDAs, Voluntary Regional Camber, GOs and so forth. But in 2004, the referendum of North-East was rejected, and after initial outcome, the other seven rejoins don't practice referendum. In this way, devolution and regionalism in UK are developing, yet unfinished. There are some large problems which have yet to be soloed. The "West Lothian Question", England's regionalism which was mentioned above, demands more competence from Wales and financial transfers are problems still need to be solved in the future. But the movement in the UK for devolution and regionalism provides our country with useful information in terms of participation of inhabitants by referendum, asymemetrical admission by circumstances.
  • 永沼 淳子
    原稿種別: 本文
    2006 年 43 巻 1 号 p. 92-105
    発行日: 2006/11/15
    公開日: 2017/11/01
    ジャーナル フリー
    The Ministry of Land Infrastructure and Transport declared an event of the faked earthquake-resistance design on November, 2005. The event has become a social issue. The inhabitants of the condominiums, the seller, the builder, the designated confirmation and inspection bodies, and the designated administrative agencies get a difficult problem. This time, the inhabitants of the condominiums are able to make a claim for damages against the seller. However, in actuality, the inhabitants of the condominiums can't receive money, because the seller has no resource. In that case the inhabitants of the condominiums are able to make a claim for damages against the real estate agent. I divide the time when the real estate agent knew the faked earthquake-resistance design, deliberate about the application of the building lots and the buildings transaction business law.
  • 小南 浩一
    原稿種別: 本文
    2006 年 43 巻 1 号 p. 106-123
    発行日: 2006/11/15
    公開日: 2017/11/01
    ジャーナル フリー
    This paper aims to discuss the common idea advocated by the two Japanese activists, Toyohiko Kagawa, a leader of the labor movement in the Kansai area and Sakae Osugi, a representative of the Japanese anarchists and the most radical leader. Although both activists seem to be in opposition to each other in the 1920s, their ideas were rooted in the same thought that the labor movement should aim to improve not only working conditions but also restoring humanity. They insisted that an employee should live humanly. This idea still has a significance in the modern society. It seems to come from their common backgrounds. Firstly, both were influenced by Proudhon, a French anarchist. Kagawa in particular was deeply inspired by Proudhon's insistence that the reform of the 'Exchange System' in capitalism should be the key to a solution of the social problems. Secondly, both had a common view of life, i.e. every value comes from life. The struggle against suppression of an individual life was their spirit of the labor movement. Today we still face the problems of humanity and alienation in a workplace, which they pointed out about 80 years ago. It is urgent to solve these issues for Japan now.
  • 片山 由美
    原稿種別: 本文
    2006 年 43 巻 1 号 p. 124-138
    発行日: 2006/11/15
    公開日: 2017/11/01
    ジャーナル フリー
    Today, selection of welfare services is generally made "at the discretion of users." This report is intended to identify information promoting users' selection of welfare services from the following four aspects: (1) Qualifications required for service providers and the profiles of those qualifications (2) Third parties' evaluation of welfare services (3) Information disclosure by service providers (4) Users' evaluation of welfare services For each aspect, discussions are specifically focused on: (1) social welfare-related professionals with national qualifications should be allowed for monopoly on their business (for this purpose, it is urgently needed to require the qualified professionals to continuously improve their quality, and to provide them with career improvement systems), (2) enhancement of the MHLW Project for Third Parties' Evaluation of Welfare Services, (3) standardization of information disclosure under the revised nursing insurance system and utilization of the disclosed information by users, and (4) preparation of hearing systems to collect users' evaluation of welfare services. Comprehensive discussions and efforts concerning these aspects are necessary to promote users' selection of welfare services.
  • 堀川 茂野
    原稿種別: 本文
    2006 年 43 巻 1 号 p. 139-157
    発行日: 2006/11/15
    公開日: 2017/11/01
    ジャーナル フリー
    In our modern police history, it has been considered that police activities have intruded into the details of civilian life and persecuted their freedom and rights. However, at present it can be said that both the police and welfare activities are for actualizing the safety of society and the happiness of people. This paper sees the police as a provider of welfare. Firstly, the author studied the legal reasons and the actual conditions of the "protective activities" that require the welfare aspect among police activities. Secondly, the author conducted a questionnaire survey targeted at citizens regarding the "protection of demented elderly with wandering symptom," which is one of the proliferating elderly-related problems and one which especially needs the activity of the police. In order to secure the physical safety of wandering demented elderly, it is desired to find wandering aged people and protect them as soon as possible. While referring to the situation of the police's protective activities and the results of the questionnaire survey, effective measures were designed. It is first necessary to amend the fundamental laws regarding protective activities: "Article 3 of the Policeman's Duty Performance Law" and "Regulations on the Protection of the People who Need Protection of the Police" in each prefecture, so as to describe more clearly how to deal with demented elderly. At the actual site of protection, the police officers in charge are required to have knowledge of dementia and the ability to deal with demented elderly, and it is an urgent task to secure appropriate places for protecting temporarily demented elderly. Furthermore, in a regional society, it is most important to establish a network for supporting the safety of wandering demented elderly, and it can be expected that such a network will become more effective if the police takes a leading role in cooperating with the regional residents. In order to solve such issues, it is necessary to oblige the police to conduct an appropriate protection of demented elderly, and it is desirable that the police works while considering their welfare duties.
  • 古賀 智久
    原稿種別: 本文
    2006 年 43 巻 1 号 p. 158-174
    発行日: 2006/11/15
    公開日: 2017/11/01
    ジャーナル フリー
    The Alien Tort Statute (ATS) provides that "district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. 1350 (2000). There was a considerable debate over whether the ATS merely provided subject matter jurisdiction or created a private cause of action for violations of customary international law. In 2004, the U.S. Supreme Court held in Sosa v. Alvarez-Machain that although the ATS is a jurisdictional statute and thus does not create a new cause of action, federal courts may create a common law cause of action for a violation of an international norm that is specific, universal, and obligatory. This paper seeks to address several questions left unresolved by the Sosa court decision. First, the Court failed to set a definite standard for determining what constitutes an actionable international law claim under the ATS. Second, the Court recognized customary international law as federal common law and authorized federal courts to craft a remedy under the federal common law. But, such a practice by federal courts may be repugnant to the principle of federalism pronounced in Erie Railroad Co. v. Tompkins (1938). Finally, treating customary international law as federal common law or a part of "the laws of the United States" within the meaning of Article 6 of the U.S. Constitution may adversely affect traditional state prerogatives. In the end, this paper argues that the Sosa Court should have resolved these issues before creating an exception to this otherwise purely jurisdictional statute.
  • 福永 英雄
    原稿種別: 本文
    2006 年 43 巻 1 号 p. 175-195
    発行日: 2006/11/15
    公開日: 2017/11/01
    ジャーナル フリー
    Though the whole picture of the paper cannot be described here in this summary, the following points can be the keys to the problematics of the theme. The term 'bipolarization' is often used in Japan of late years. But the category has never been made clear as far as I have surveyed. First of all, the paper aims at constructing theoretical types of 'bipolarization.' By doing this, the category can be clearer. 'Bipolarization' has some relevance to high informatization. For instance, high informatization tends to trigger 'positive feedback,' which can lead to 'bipolarization.' From the economic point of view, high informatization can reduce 'transaction cost.' Essencially 'transaction cost' stems from informational search. The worldwide network really contributes to the search. Moreover, 'bipolarization,' high informatization and reduction of 'transaction cost' affects school education. Nowadays, school education can be one of the objects of transactions in markets. -At the foot ofthe paper, I offered some actual proposals for possible types of school education in such an era.
  • 天野 慎也
    原稿種別: 本文
    2006 年 43 巻 1 号 p. 196-206
    発行日: 2006/11/15
    公開日: 2017/11/01
    ジャーナル フリー
    Since seiji-kaikaku (political reform) in 1993, the 2003 general election is the third election, and it took 10 years. Every party could plot their strategies which they adapted to a new election system, combined the single-member districts and the proportional representation at that time. In this article, I tried to analyze attributes of fresh candidates who run for the 2003 general election and examined the circumstances and features of LDP, DPJ, JCP, SDP, and independent candidates. LDP didn't have so many districts fielded a candidate that it fielded secondgeneration candidates, candidates who had other attributes, for example, who had been civil servants or local assembly members didn't have much chances. Their recruitment resources have been rigid in this 10 years. DPJ had so many districts fielded a candidate that it fielded many kind of candidates, including the candidates who had run for as a candidate of LDP before. JCP and SDP candidates had few chances to be elected. But gathering votes for proportional representation, they fielded candidates who had worked for party organization. Through this analysis, I could find that their candidates were not the persons who want to run for the election, but who could be fielded.
  • 根本 晋一
    原稿種別: 本文
    2006 年 43 巻 1 号 p. 207-217
    発行日: 2006/11/15
    公開日: 2017/11/01
    ジャーナル フリー
    The first step to a discussion In late years "Medical Care Standard" is carrying out a function to lead duty of abstraction of the public named duty to talk about with right of future benefit of a patient, function to that is to say mark coverage of a right of future benefit infringement theory and other medical examination and treatment department of a doctor as well as a function to judge presence/degree of a fault about a medical examination and treatment act of a doctor and study duty and gradually enlarges the role. This report inspects it about right or wrong of such a tendency. Concluding remarks It became clear that a medical standard was losing a function to mark a limit of legal responsibility of a doctor. It is clear that it submits more spur to defense medical care and contraction medical care to ignore the present conditions. In high-risk medical examination and treatment department, a doctor and a medical institution cannot already bear weight of the responsibility and are taking self-defense plan to evade meeting a demand duty based on Medical Act Article 23 (withdrawal plan), and, for example, in Saitama, a I・II next first aid lifesaving engine of otolaryngology becomes extinct, and the blank area where a doctor of the obstetrics and gynecology department is not stationed in Fukushima either produces it (as of March, 2006). When such situation is worse, it seems that fear to cause deficiency for maintenance and an increase of health of the nation realizes it and enters the situation that I cannot possibly look on unconcernedly. As an urgent problem, you should reconsider an ideal method of a medical standard when you take warning by the current critical situation.
  • 小川 晴子, 神尾 真知子
    原稿種別: 本文
    2006 年 43 巻 1 号 p. 218-224
    発行日: 2006/11/15
    公開日: 2017/11/01
    ジャーナル フリー
    The symposium at the 104th meeting of the Japanese Association of Law and Political Science, presided by Haruko Ogawa and Machiko Kamio, was held at Hyogo University of Teacher Education of 2006 on June 17^<th> at 14:00 to 17:30. Five panels made the following presentations in this session; 1. A Policy concering a sharp drop in the birthrate and family: Megumi Kanagawa (Wakayaka University) 2. Social welfare policy and family in Japan: Miyuki Osagami (Ryukoku University) 3. Child abuse pretent on law enforcement and family structure: Michiyo Wada (Osaka Gakuin University) 4. A study of the succession system in the little child and elderly society -Focusing mainly on the spouse heirship-: Akira Tsudi (Osaka Seikei University) 5. A Legal Problem in the Succession of the Grave: Tomoko Hoshino (Osaka Womens' Junior College) After the presentations, the session was open for questions and answeres. In closing, expressing her gratitude for the panels and those who were involved in this session, the chairpersons wound up the symposium with the conclusion as bellows; Any law or any policy would not enhance its effect unless people who evaluate the law or policy enhance their awareness of it.
  • 金川 めぐみ
    原稿種別: 本文
    2006 年 43 巻 1 号 p. 225-244
    発行日: 2006/11/15
    公開日: 2017/11/01
    ジャーナル フリー
    Japan's birthrate--the number of children each woman is expected to bear in her lifetime-has sunk to 1.29 after the consequent years of decline. Compared with the birthrate of other nations, Japan's figure is extremely low. The government has come up with a set of comprehensive measures aimed at halting the declining birthrate. The package signifies a fresh departure in the government's attempt to address the problem after the many years of trying to help women manage to work and raise their children at the same time. It calls for reconsidering the working styles adopted by men and women and providing better programs to assist women in raising their children, including those who do not work outside the home. However, I have a doubt about such a policy against a sharp drop in the birthrate. The reason is as follows. First, the policy related directly to raising up the birthrate doesn't have an after all good influence. Such a policy supports only a specific family model, and is not equal to all the families. Second, there is a danger that breaks off the help whenever the childnurturing support related to raising up the birthrate may be ineffectual. It is not a purpose of child-nurturing support to raise the birthrate, but is to raise the children healthy. In that sense, the childnurturing support related to raising birthrate should be reviewed the role, and return to the intended purpose. The Contents are as follows. I. Introduction II. Explanation of Concept III. Legal Accountability of Raising Children -Social Security Law- IV. Policy against a Sharp Drop in the Birthrate after 1990's
  • 長上 深雪
    原稿種別: 本文
    2006 年 43 巻 1 号 p. 245-258
    発行日: 2006/11/15
    公開日: 2017/11/01
    ジャーナル フリー
    In this paper, I analyze a social welfare policy and family in Japan from the aspect of the long term care problems. With the increase of the elderly population, the long term care policy becomes very important to family and the elderly people who need care. This article examines the long term care problems and the social welfare policy after 1970's in Japan and analyzes whether the social welfare policy is appropriate for the family's problems. Contents 1 The Family and a long term care problems for the elderly 2 The family positioning of the social welfare policy in after 1970's in Japan (1) A theory for the Japanese model welfare society and the family (2) The social policy for the elderly people at home during 1980's (3) The limitations of family care at home and 'golden plan' for the elderly people (4) A new ideology of the social security and a restruction the funda mental systems social welfare (5) Socialization of care and the insurance system for the long term care 3 The insurance system Long term care and the family
  • 和田 美智代
    原稿種別: 本文
    2006 年 43 巻 1 号 p. 259-269
    発行日: 2006/11/15
    公開日: 2017/11/01
    ジャーナル フリー
    Child abuse is produced in a family. Unlike DV or elderly abuse, it does not serve as a solution only to separate the assailant and the victim. It is necessary to examine the family itself. This study examines an event of ten years intervention by the Family Court. The process in which critical abuse is produced by first-marriage, stable-type of families is rare. The other type of family generates much more stress than ordinary homes in many cases, leading to child abuse. The function of the child upbringing decreases though it is a very usual home today. The effect of abuse prevention is desired by supporting the whole some childrearing home.
  • 辻 朗
    原稿種別: 本文
    2006 年 43 巻 1 号 p. 270-284
    発行日: 2006/11/15
    公開日: 2017/11/01
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    In the little child and elderly society, we must take a hard look at the present succession system. Then, I examine problems of the succession system in the little child and elderly society in this paper. As for me it can be foreseen that the transition from "succession system for the heir" to "succession system for the decedent" will be probably occurred. Namely, I have foreseen that respect for intention of the decedent will become fundamental to our succession system. Therefore, in the little child and elderly society, it is the expectation that the will system is seriously considered. But it is thought that also the legal succession system receives a great influence from the little child and elderly society. In this paper, I describe exclusively the spouse heirship and the shares in the succession of the spouse in the legal succession system.
  • 星野 智子
    原稿種別: 本文
    2006 年 43 巻 1 号 p. 285-294
    発行日: 2006/11/15
    公開日: 2017/11/01
    ジャーナル フリー
    As for the civil law, Article 897 (the succession of religious service property), the "(1) genealogy, ritualistic implements, and proprietary rights of a tomb should preside over the ancestral religious service according to the custom, and a person succeeds to this. But the person succeeds to this when there is the thing which should preside over the ancestral religious service according to appointment of an ancestor. (2) When the custom is not clear, a family court establishes this. There is it with", confusion occurs over this "cust om". A dispute as to whether is the eldest son inheritance is outstanding now, but the family member that relations characteristics with an ancestor during the lifetime are dark is to succeed in a precedent. There were an agreement and the thought that the eldest son could succeed to with precedence in a specific graveyard and cemetery for many years, and it was one of the factors of confusion. If a law itself assumes that influence extends to an agreement of a cemetery and a sense of rights of people, the argument that took revision into consideration is necessary. I think that it is connected for a solution of confusion to coordinate outlook on the modern family with outlook on the traditional family that "the eldest son is special".
  • 原稿種別: 付録等
    2006 年 43 巻 1 号 p. A1-
    発行日: 2006/11/15
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2006 年 43 巻 1 号 p. A1-
    発行日: 2006/11/15
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2006 年 43 巻 1 号 p. A2-A3
    発行日: 2006/11/15
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2006 年 43 巻 1 号 p. A4-A5
    発行日: 2006/11/15
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2006 年 43 巻 1 号 p. A6-A7
    発行日: 2006/11/15
    公開日: 2017/11/01
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  • 原稿種別: 文献目録等
    2006 年 43 巻 1 号 p. A8-A28
    発行日: 2006/11/15
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2006 年 43 巻 1 号 p. App2-
    発行日: 2006/11/15
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2006 年 43 巻 1 号 p. App3-
    発行日: 2006/11/15
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2006 年 43 巻 1 号 p. App4-
    発行日: 2006/11/15
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2006 年 43 巻 1 号 p. App5-
    発行日: 2006/11/15
    公開日: 2017/11/01
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  • 原稿種別: 表紙
    2006 年 43 巻 1 号 p. Cover3-
    発行日: 2006/11/15
    公開日: 2017/11/01
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  • 原稿種別: 表紙
    2006 年 43 巻 1 号 p. Cover4-
    発行日: 2006/11/15
    公開日: 2017/11/01
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