法政論叢
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44 巻 , 2 号
選択された号の論文の28件中1~28を表示しています
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  • 原稿種別: 表紙
    44 巻 (2007) 2 号 p. Cover1-
    公開日: 2017/11/01
    ジャーナル フリー
  • 原稿種別: 表紙
    44 巻 (2007) 2 号 p. Cover2-
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    44 巻 (2007) 2 号 p. App1-
    公開日: 2017/11/01
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  • 付 月
    原稿種別: 本文
    44 巻 (2007) 2 号 p. 1-12
    公開日: 2017/11/01
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    Stateless person, who lack a legal bond of a nationality which has been described as "the right to have rights", exist in all regions of the world. Japan is not an exception from this phenomenon. Some person are turned "stateless" due to political or historical reasons, and many new born stateless children of foreign parents are living in the shadows of the Japanese society. The most effective way of protecting stateless persons, according to the United Nations High Commissioner for Refugees (UNHCR), is to develop legislation that avoids creating a situation of statelessness in the first place. However, it is estimated that there are about 15 million stateless persons in the world who should be protected until the problem of statelessness is eliminated. Ensuring the right of stateless persons to remain in their country of habitual residence is indispensable for the protection of stateless persons. Nevertheless, many stateless persons are confronted with a danger of expulsion and detention in the country of their habitual residence despite the fact that they lack of protection by any state in the world. This article focuses on the issues of protecting stateless persons, especially on the rights to remain and re-enter the country of their habitual residence, and on the protection against expulsion and detention of stateless persons. I drew particular attention to analyze the actual situation of the deportation and detention of stateless persons who are irregularly staying in Japan.
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  • 辻 雄一郎
    原稿種別: 本文
    44 巻 (2007) 2 号 p. 13-36
    公開日: 2017/11/01
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    This article argues that the U.S Constitution does not grant rights, it just recognizes them, and the Ninth Amendment is the most important amendment in the Bill of Rights. By help of my mentor, Prof. Dan Farber, and other scholars such as Suzanna Sherry, Akhil Amar, Dworkin, and Justice Kennedy in the Lawrence case in the Supreme Court, this author says that regarding informational privacy, the Ninth Amendment is an essential part of the American Constitution. The Ninth Amendment is directed against the federal government, and the Fourteenth Amendment is directed against state government. The term and history proves this view. Although both the Declaration of Independence and the Japanese Constitution include the term "the pursuit of happiness", the reader might notice that the U.S. Constitution does not have the term "the pursuit of the happiness". However, in spite of the lack of the term, the readers will realize that Japanese and the U.S. Constitutional law scholar can not follow the idea that denies the existence of unenumerated rights. For example, unenumerated rights stem from natural rights that have roots in common law, a part of the legal system. In the end of this paper, the readers will understand why we can not take the position of Scalia if we are faithful to the framer's Constitution. The formalist approach fails if we take a close look at the history of the Ninth Amendment. The rights, including informational privacy, are retained by the people.
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  • 佐々木 孝夫
    原稿種別: 本文
    44 巻 (2007) 2 号 p. 37-49
    公開日: 2017/11/01
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    Regarding the relationship of media and politics during the Koizumi Administration, the media, researchers, and commentators have performed multidirectional inquiries. From precedent studies, we know that new knowledge can be obtained regarding problem points in television election coverage and political parties' communication strategies. There is a possibility that the relationship between the points of conflict reported by the media and the Manifestos presented by the political parties, and disparities between public opinion polls and the news contents as reported by newspaper companies can have effects upon voter's voting behavior. In this study, I will pay attention not only to television, but also to the newspaper media. As a result of this analysis, an image of "the newspaper media influenced by television coverage" arises. In chief, this report will discuss the Koizumi Administration, but it will also touch upon the House of Councilors Election of 2007.
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  • 横大道 聡
    原稿種別: 本文
    44 巻 (2007) 2 号 p. 50-67
    公開日: 2017/11/01
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    Most scholars say that "freedom of speech" includes "freedom not to speak". But what about the Freedom not to speak is infringed? How can we decide when freedom not to speak is restricted? The aim of this paper is to demonstrate that question, focusing on cases and theory in the United States. By analyzing many cases, I distinguished the "freedom not to speak" based on "freedom of thought" from "freedom not to speak" based on "freedom of speech", and maintain that the former is infringed if government coerces someone to speak on a political or ideological matter, the latter is infringed only if the listener understand that the expression which is not related to political or ideological matter coerced by government is being attributed to the speaker. That is to say, the freedom not to speak based on "freedom of speech" means the right of an individual to not have expressions contrary to his thinking attributed to him by government. Underlying that understanding, I urge, the harm caused by the forced expression is not to the speaker, but to the listener's interest. This understanding may have many difficulties, but it also has much practical significance worthy of consideration.
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  • 小南 浩一
    原稿種別: 本文
    44 巻 (2007) 2 号 p. 68-92
    公開日: 2017/11/01
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    Immediately after the Pacific War, Toyohiko Kagawa was appointed as an advisor to the first postwar cabinet by Prime Minister Higashikuni. Kagawa was expected to accomplish two missions: save the nation from the moral decadence caused by the defeat in the war and restore Japan's status in the international society so that Japan could contribute to world peace. In order to pursue the latter mission, he organized the International Peace Association in September, 1945 and published the monthly bulletin "Sekai Kokka" (World State). In "Sekai Kokka", he described the United Nations and UNESCO, the preliminary draft of a World Constitution issued by the University of Chicago, and the overseas movements for the World Federal Government. His efforts obviously helped to broaden the nation's view. He highly evaluated Article 9 of the new Japanese Constitution in his writing "Sekai Kokka", pointing out it was premised on the same basic philosophy as the movement for the World Federal Government. He advocated the defense of the Constitution against the movement for amendment to the Constitution in the 1950s and addressed the problem of nuclear weapons, being concerned about the distorted facts of the power of nuclear weapons and their damage, which was effectively controlled by the Press Code. We can see his great foresight through his activities. Affected by H.G. Wells, he developed the framework of the World Federation Government. The elements of the framework can be found in his assertion regarding taking measures to consolidate world peace by means of economic policy, which was based on the policy reform of the League of Nations in 1930s. The movement for the World Federal Government was not only to create world peace, but also to adopt guiding principles which include respecting individuals, limiting national sovereignty and controlling financial capital. These seem to be valid strategies for dealing with the current problems caused by globalization.
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  • 茨木 正治
    原稿種別: 本文
    44 巻 (2007) 2 号 p. 93-111
    公開日: 2017/11/01
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    This essay is intended to investigate the relationship between politics and emotions in terms of the role that mass media takes in activating emotions in public. Reviewing the studies on politics and emotion and on emotions in mass media, there were some useful insights to me in conducting my research. Recent investigations in emotion and politics have demonstrated that emotion is considered to have priority over reason in politics. The major result from recent studies on mass media and emotion has been that media framing is available to analyze the evocative function of mass media to politics on the micro level as much as media event research is on the macro level.
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  • 岩切 大地
    原稿種別: 本文
    44 巻 (2007) 2 号 p. 112-123
    公開日: 2017/11/01
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    This paper examines the dialogic relationship between Parliament and the courts under the Human Rights Act 1998 (UK). In the scheme of the Act, these two institutions each have responsibility in protecting human rights, and many discussions have been devoted to the question of where the boundary of their provinces exists. Recently, however, there have been some strong arguments from the perspective of 'constitutional dialogue.' In analysing these arguments, the author alleges two natures in the dialogical relationship, ie, 'promotion of human rights culture' and 'improvement of parliamentary intensions', and examines how Parliament and the courts interact with each other through the word of Act of Parliaments and Hansard, and convention-compatible interpretations and declarations of incompatibility. The sections of this paper are as follows: i Introduction ii Human Rights Act 1998 (UK) iii The role of Parliament in the HRA iv The role of the courts in the HRA v Two natures of dialogic relationship vi The language of the constitutional dialogue vii Conclusion and some remarks
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  • 北原 靖和
    原稿種別: 本文
    44 巻 (2007) 2 号 p. 124-142
    公開日: 2017/11/01
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    After the terrorist attacks of September 11, 2001, the Homeland Security Act was enacted in 2002 by U.S. Congress. It includes in a provision, the Critical Infrastructure Information Act (CIIA), which may give much affect on current laws such as the Freedom of Information Act (FOIA). CIIA allows the Department of Homeland Security to withhold critical infrastructure information that is voluntarily submitted to it by private entities regarding the security of critical infrastructure and protected systems. This article focuses on CIIA's advantages and disadvantages and analyzes their provisions and scholastic argument of CIIA and CIIA's final rule. Chapter 2,3 and 4 includes a summary of CIIA and CIIA's final rule. Chapter 5 and 6 take up the scholastic argument for or against CIIA. JW. Conrad demonstrates that national security can be served under existing law such as the CIIA. On the other hand, CE. Wells insists that Congress should amend FOIA and CIIA to counteract the government's tendency toward excessive secrecy. Chapter 7 describes that CIIA and scholarship of CIIA are significant for Japanese information legal systems, because it is possible that terrorist attacks might arise in Japan.
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  • 和田 修一
    原稿種別: 本文
    44 巻 (2007) 2 号 p. 143-164
    公開日: 2017/11/01
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    In the U.S. foreign and security policy-making process, the President and Congress work together relying on two important traditions. The first one is the "bipartisan diplomacy," initiated by Senator Arthur Vandenberg immediately after the World War II. Vandenberg's assertion that "politics stops at the water's edge" led the cooperative actions between the President and Congress in the formation of the Cold War policy in the late 1940s. Next is the principle of "checks and balances" between the legislative and the executive branches. With an idea of "separating purse and sword," Congress is empowered by the Constitution to declare war, and to appropriate funds for war. Along with these contradicting traditions, Congress exerts a considerable amount of influence on the U.S. foreign and security policy. This article will examine the Congressional actions on the Iraq issue since 2001. Receiving historically high supporting rate after the 9-11 terror attacks, President George W. Bush launched the war on terror in October 2001, and he strived for attacking Iraq in March 2003. Congress participated in this process by both authorizing the use of force, and funding the cost of war and reconstruction in Afghanistan and Iraq. In spite of Bush's May 2003 announcement that Major combat operations in Iraq have ended, the situation in Iraq developed into chaos. Moreover, the suspicion was raised over the U.S. intelligence report on Saddam Hussein's development of weapon of mass destruction (WMD), which was the grounds for the U.S. attack on Iraq. I argue that Congress had supported the President to launch the war against Iraq at the beginning. Congress, however, changes its tone and started strengthening its oversight power in response to the growing criticism of the American electorate against Bush's Iraq policy. Especially after the mid-term election in 2006, when the electorate gave a majority to the Democratic Party in both the House and the Senate, Congress tried to change the Iraq policy by introducing bills and resolutions to set the deadline of withdrawing the U.S. military from Iraq. In terms of the Iraq issue, Congress has played as a catalyst to mediate between the President and the American electorate.
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  • 樫原 義比古
    原稿種別: 本文
    44 巻 (2007) 2 号 p. 165-177
    公開日: 2017/11/01
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    Restrictive covenants such as non-competition and non-disclosure, as employers think about the need to protect business interests, have long been present in many Japanese employment contracts. Courts, however, have been doubtful of such restrictive covenants and sometimes have refused to issue injunctions to enforce them. The reality that there are no clear rules regarding enforceability of restrictive covenants can be frustrating for employers who are left with no reliable means of keeping their key employees from joining a competitor or competing themselves. Faced with a similar problem, employers in England developed a concept called "garden leave" and this arrangement has been generally accepted and enforced by English courts. Garden leave clauses in England have become common in the employment context, but may they become a tool commonly used by employers to protect their businesses from the dangers inherent when key employees terminate their employment in Japan? The purpose of this article is to examine the question as to whether garden leave provides appropriate safeguards and should be enforced by courts. In analyzing garden leave clauses in an era of high employee mobility, it is difficult to rationalize the need for the garden leave doctrine in Japan.
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  • 眞鍋 貞樹
    原稿種別: 本文
    44 巻 (2007) 2 号 p. 178-188
    公開日: 2017/11/01
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    There have been about 100,000 people who have disappeared every year in Japan. The reasons of these people being missing are that some runaway from home, some are involved in incidents, or accidents and some other personal matters. Of the about 100,000 missing people cases, ninety percent are resolved in a few years after the person goes missing, but the rest of the cases have been neglected for a long time. Missing persons cases don't raise the social concern unless it is an incident such as a missing child or suspicious criminal case. There are a lot of cases that have been neglected for a long time despite the police having investigated under the recognition as the victims of some incidents. The reason for the neglecting of missing cases is the cases' complexity, the non-existence of support systems to the families of missing people, and the limitation of the Police investigation. The second social issues have occurred in the families of the missing people, the discontinuity among families and the isolation in the local communities to these families. This thesis shows the political and legal obstacles regarding the investigation of missing people through research carried out on 470 missing person cases. And we hope to propose some policies in order to solve the missing person issue, the smooth relationship among the families and authorities, the innovation of law on the missing issue, and the supporting system to the families.
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  • 坂本 健蔵
    原稿種別: 本文
    44 巻 (2007) 2 号 p. 189-200
    公開日: 2017/11/01
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    Japan diplomacy at the beginning of the Showa period was developed as a product of conflicts over Continental policy that involved Tanaka diplomacy backed by the Seiyukai and the second Shidehara diplomacy backed by the Minsei-to. Nagai Ryutarou, a Party Politician, was the person who led Minsei-to diplomacy during this period. At the time in China, the nationalist movement was rapidly evolving, and the rights and interests of all nations were often placed in a state of jeopardy. Nagai continued policies of not sending troops, not interfering in Chinese internal affairs, and maintaining a conciliatory posture. He firmly believed that Japan needed to respect China's "Independence" and "Rights of Autonomy" and spoke and acted accordingly. Examining the particulars of Nagai's diplomacy towards China, one sees that he recognized that China controlled movements in public opinion, and that China judged foreign relations according to relationships of trust. Because there was that awareness in the background, he maintained a posture of appeasement from beginning to end. Moreover, because he held the view that an alliance with China, which like Japan is a country in Asia populated by people of color, could change the outlook of international relations which were mainly formed by Europe and the United States, and because he felt that Japan was in competition against the European and American countries with respect to relations with China, the appeasement diplomacy towards China was accelerated.
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  • 大林 啓吾
    原稿種別: 本文
    44 巻 (2007) 2 号 p. 201-223
    公開日: 2017/11/01
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    The Constitution does not clearly specify how government can protect individual rights. However, general constitutional theory has thought that the legislative branch creates rights, and then, judicial branch remedies it. If so, does this exclude the executive branch from the protection of individual rights? Although the executive can execute the enforcement of rights, the creation of rights belong to the legislative realm. In order to examine it, I focus on whether the Civil Rights Act §1983 should include remedies for violations of rights created by federal administrative agency regulations. In short, can administrative agencies create individual federal rights enforceable through §1983? First, I review the development of §1983. Second, I examine judicial response. In instances where the Supreme Court did not address the issue, decisions issued by various Federal Circuit courts are divided as to whether administrative agencies may create individual rights. Third, I conclude that, although as a general promise legislature creates rights and judiciary remedies, there are some qualified areas where the executive has room to create enforceable rights through the use of §1983.
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  • 橋本 五郎, 岩井 奉信, 三浦 信行, 浜谷 英博, 井田 正道
    原稿種別: 本文
    44 巻 (2007) 2 号 p. 224-248
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    44 巻 (2007) 2 号 p. A1-
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    44 巻 (2007) 2 号 p. A1-
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    44 巻 (2007) 2 号 p. A2-A3
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    44 巻 (2007) 2 号 p. A4-A5
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    44 巻 (2007) 2 号 p. A6-A7
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  • 原稿種別: 文献目録等
    44 巻 (2007) 2 号 p. A8-A22
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    44 巻 (2007) 2 号 p. App2-
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    44 巻 (2007) 2 号 p. App3-
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    44 巻 (2007) 2 号 p. App4-
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  • 原稿種別: 表紙
    44 巻 (2007) 2 号 p. Cover3-
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  • 原稿種別: 表紙
    44 巻 (2007) 2 号 p. Cover4-
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