法政論叢
Online ISSN : 2432-1559
Print ISSN : 0386-5266
52 巻 , 1 号
選択された号の論文の36件中1~36を表示しています
  • 原稿種別: 表紙
    2016 年 52 巻 1 号 p. Cover1-
    発行日: 2016/02/25
    公開日: 2017/11/01
    ジャーナル フリー
  • 原稿種別: 表紙
    2016 年 52 巻 1 号 p. Cover2-
    発行日: 2016/02/25
    公開日: 2017/11/01
    ジャーナル フリー
  • 原稿種別: 付録等
    2016 年 52 巻 1 号 p. App1-
    発行日: 2016/02/25
    公開日: 2017/11/01
    ジャーナル フリー
  • 上岡 敦
    原稿種別: 本文
    2016 年 52 巻 1 号 p. 1-18
    発行日: 2016/02/25
    公開日: 2017/11/01
    ジャーナル フリー
    The purpose of this paper is to classify the legislative processes of the enactment and the amendment of the Diet acts during the period from 1947 to 1949. According to the findings done by the political science study group of the Diet, the Japanese Diet has played a certain role in their functions. However, these research findings are based on a concentrated discussion of the premises for the institutions. They have never clarified the following two questions: How was the system formed? Why was the system chosen? They simply focus of this study is to clarify the following two questions: What is the purpose of the Diet system? What is the expected function of the Diet? Firstly, I have tried to overview the enactment process of the Diet act. At this stage, the various influential actors were performing. In particular, Japanese Government was trying to draft the Diet acts of the both Houses which were not desirable for the GHQ. Secondly, I have tried to overview the enactment process of the Diet act. It was characteristic that the Diet acts in those days were enacted by the negotiations with GHQ and the House of Representatives. This process was affected by the parliamentary reform of the Imperial Diet era. Thirdly, I have tried to overview the amendment process of the Diet act during eh occupation era. The major revision was a transformation of the organizational structure of committee. However, most of the amendments of the Diet acts during the occupation period were of the practical procedures. Therefore, the fundamental basis of the Diet system has never been changed.
  • 林 紀行
    原稿種別: 本文
    2016 年 52 巻 1 号 p. 19-34
    発行日: 2016/02/25
    公開日: 2017/11/01
    ジャーナル フリー
    Local government in Japan employs a system of dual representation where both members of assemblies and the heads of local governments are directly elected by residents. In this system, the roles of the local assembly is to be in the monitoring and policy-making function. However, the proposals by the chief have been almost passed and there are few ordinances proposed by local assembly members. So it is necessary to construct an evaluation system to check its activity. This paper takes such issues into account and examines the evaluation system of local assembly, especially the cases of Fukushima village assembly in Hokkaido and Itsuki village assembly in Kumamoto. Contents 1 Introduction 2 Evaluation system of local assembly 3 Case study : evaluation system of Istuki village assembly 4 Conclusion
  • 久保田 哲
    原稿種別: 本文
    2016 年 52 巻 1 号 p. 35-52
    発行日: 2016/02/25
    公開日: 2017/11/01
    ジャーナル フリー
    This paper is intended to clarify what plan Hirobumi Ito envisaged regarding the bicameral system, and then how his plan was evaluated. Before his investigation of the constitutions in European countries, Ito thought that it was necessary to take a certain satisfactory measures toward the Lower House as well as the discontent warriors. Therefore, he set up the Senatorial House as if it were the "bulwark of the Throne". His plot of the legislature was not so workable, considering the role of the legislature, that it can be called the "negative" bicameral system plan. Then, Ito learned from Stein and Mosse the significance of the bicameral system of the assembly, and also learned that the bicameral system was a preferable legislature. Ito concluded that "law" should be established through the "kyosan" of the bicameral system of the assembly consisting of the Lower House representing the will of people and the Senatorial House showing achievements and knowledge. He made up such a legislative process as playing an important role in a constitutional government. He intended to set up the bicameral system as "eternal institution" consisting of the Lower House members to be elected by the people and the Senatorial House members to be appointed among the bureaucrats. His thought that this sort of a legislative system plot could be called the a "positive" bicameral system plan. It was no doubt pioneering in those days that Ito proposed the necessity of the adoption of bicameralism based on a functional legislative process.
  • 松浦 淳介
    原稿種別: 本文
    2016 年 52 巻 1 号 p. 53-72
    発行日: 2016/02/25
    公開日: 2017/11/01
    ジャーナル フリー
    This paper analyzes the legislative process of the bill on the protection of specially designated secrets which passed the Japanese Diet in December 2013, for the purpose of clarifying how the divided Diet changes the legislative process of confrontational bills. The author expects, applying the game theory, that the government tends to give up submitting confrontational bills to the Diet in the divided Diet. Further, I focus on the process until the bill on the protection of specially designated secrets is submitted to the Diet, and show that it was not submitted to the Diet, though the bill was prepared for beforehand in the divided Diet.
  • 原田 琢也
    原稿種別: 本文
    2016 年 52 巻 1 号 p. 73-85
    発行日: 2016/02/25
    公開日: 2017/11/01
    ジャーナル フリー
    In 2012, the Special Committee on Reform of Special Needs Education of the Elementary and Secondary Education Sectional Committee of the Central Council for Education in Japan proposed "The Report on Promotion of the Special Needs Education System to Build an Inclusive Education System toward an Inclusive Society". In this report they said that Japan will move towards inclusive education by developing progressively the existing Special Needs Education System. This research clarifies the problems inherent in the Japanese Inclusive System and the rhetoric which supports its logic through a comparison with the concept of the Salamanca Statement. Through the comparison of the two systems, the following differences were shown. In the Salamanca Statements, every single child is considered to be equally different (Monism) and in principle learns together in a mainstream school (Integralism). On the other hand, in the Japanese Inclusive Education System, children with disabilities are to be distinguished from normal children (Dualism) and learn in 'the diversity of learning environment' including special schools (Separatism). The differences between the two systems are the discrepancies both in degree and orientation, which are stemmed from their different models of each system. While Salamanca's inclusive education is based on the social model, the Japanese Special Education System is based on the medical (individual) model. This research concludes that an institutional design based on the social model is needed for Japan truly to go toward inclusive education for an inclusive society.
  • 山本 克司
    原稿種別: 本文
    2016 年 52 巻 1 号 p. 87-102
    発行日: 2016/02/25
    公開日: 2017/11/01
    ジャーナル フリー
    In the modern society, the elderly abuse is prevented by the fundamental human rights. However, in the modern society, any sufficient inspection of the significance and the essential qualities of the human rights has never been accomplished. Why are the human rights indispensable for the human being? What is the legitimacy of the human rights? Is it necessary to examine the means of the elder person protection at the time when the human rights were not guaranteed. This study is focused on the elder person protection means from the ancient times to the Edo era. I have looked through the documents from the ancient times to the Edo era, and then examined the means of the elder person protection. As a result, I found that the Buddhism and the Confucianism thoughts, as well as an affection of the nature were the essential means of the elder person protection. In particular, the Confucianism thought, which was backed up by the power of the state, was strongly influential in the elder person protection. However, these protection means reflected differently on the people due to their social status. I like to continue to promote this sort of study of the legal question of human rights concerning the elderly abuse on the basis of this present study.
  • 萩野 貴史
    原稿種別: 本文
    2016 年 52 巻 1 号 p. 103-121
    発行日: 2016/02/25
    公開日: 2017/11/01
    ジャーナル フリー
    With which crime should be charged, for example, against the parents who have caused the death of their child through negligence? As a regulation related to this act, the following is considered. First, in Japanese criminal law, Article 218 (Abandonment by the Person Who Is Responsible for Protection) provides that "when a person who is responsible for protection of the immature..., fails to give necessary protection to such person, the person shall be punished..." Moreover, when the victim suffered death or injury, abandonment causing death or injury (Article 219) is charged against the person. On the other hand, Article 199 (Homicide) provides that "a person who kills another shall be punished...", and, according to a prevailing view, is applied murder by omission. In the above-mentioned case, there are the precedents judged either as homicide or as abandonment against the acts causing death by neglecting the victims. Then, what is the standard to classify these 2 crimes? This study is to provide perspective view to the standard through a consideration of the related precedents.
  • 片山 克行
    原稿種別: 本文
    2016 年 52 巻 1 号 p. 123-136
    発行日: 2016/02/25
    公開日: 2017/11/01
    ジャーナル フリー
    The criminal victims are apt to suffer from their financial difficulties because of their bodily harm and property damages. It is indispensable for them to recover from their damages. Therefore, it is necessary to bring a prompt and inexpensive action to the court. We must consider the possibility as to whether or not a civil mediation case could be tried in the criminal court.
  • 渡辺 耕治
    原稿種別: 本文
    2016 年 52 巻 1 号 p. 137-154
    発行日: 2016/02/25
    公開日: 2017/11/01
    ジャーナル フリー
    On 15th August 1945, Japanese government accepted the "Potsdam Declaration", and the Second World War ended. Based on the "Potsdam Declaration" and General Order No.1 by Office of the Supreme Commander for the Allied Powers, Republic of China started to get the governance of Taiwan. But from 15th August to 25th October, the day Japanese Governor General Rikichi Ando subscribed the Declaration of the surrender of Taiwan to the Allied Powers, there was a political vacuum period in Taiwan. On 16th August 1945, Koo Chen-fu took part in a meeting with a few Japanese Army Officers in Taiwan to have a plan to keep the social and political order in Formosa. That meeting has been considered as a conspiracy of "Taiwan Independence" or "Taiwan Autonomy Planning", after ROC got the governing power there. In fact, according to the instruction of Japanese Governor General, the attendance of the meeting did nothing about that. Even so, the ROC governing entity in Taiwan arrested the members in February 1946 as they involved in the "Taiwan Independent Plot", and Koo Chen-fu was sentenced to be imprisoned in July 1947. This article makes clear that the background of unfair judgment on Koo Chen-fu and real purpose of the Taiwan Garrison Command to capture those pro-Japanese Intellectual Taiwanese Group.
  • 高澤 弘明
    原稿種別: 本文
    2016 年 52 巻 1 号 p. 155-167
    発行日: 2016/02/25
    公開日: 2017/11/01
    ジャーナル フリー
    When Arasuke Sone, the Chief Secretary of the House of Representatives, announced that the fire that destroyed the Imperial Diet Building on January 20, 1891 was caused by an electric circuit short. The electricity supplier, Tokyo Dento (Tokyo Electric Light Company), filed a civil action against Sone in the Tokyo District Court in order to seek a correction of his announcement. The Yamagata Cabinet regarded this suit case as an administrative one, and intended, depending on the cabinet decision, to give to the court an order that the court should reject the case on the grounds that it lay outside the court's jurisdiction. Akiyoshi Yamada, Minister of Justice, alone dissented from this motion. He submitted, however, a written opinion arguing that the position of the cabinet should be proclaimed in court in accordance with due process under the Code of Civil Procedure at the time. While Yamada's opinion was consequently adopted, this in a sense prevented executive interference in the judiciary and differed sharply from Yamada's response to the Otsu incident (a failed assassination attempt on the then Tsesarevich of Russia on Japanese soil) four months later. In this paper, I examine Yamada's view of the independence of the judiciary through the lens of the Diet Building fire shortly before the Otsu incident.
  • 牧野 力也
    原稿種別: 本文
    2016 年 52 巻 1 号 p. 169-185
    発行日: 2016/02/25
    公開日: 2017/11/01
    ジャーナル フリー
    Article 45 of the Korean Constitutional Court Act stipulates "The Constitutional Court shall decide only whether or not the requested statute or any provision of the statute is unconstitutional". Therefore, it is interpreted that only two forms of decisions, constitutional or unconstitutional, are the means of norms control. But the only two forms of decision might be insufficient to deal with all the various problems because the social problems tend to be more and more complicated. So from the early time on, the Korean Constitution Court has adopted "modified forms of decisions" such as those of "the limited constitutionality", "the limited unconstitutionality", and "the nonconformity to the constitution". The theme of this article is the problems that decision of the nonconformity to the Constitution has, because it is similar to the Japanese decision form such as "decision of appeal". It is a decision form that the Korean Constitutional Court takes account of legal stability and defers to the legislator. It has been used frequently since 1989 when it was introduced, but some problems have been appeared in operation. It must be beneficial to study the reason why these problems appear, because this kind of study may provide a useful reference for constitutional litigations in Japan.
  • 吉田 直正
    原稿種別: 本文
    2016 年 52 巻 1 号 p. 187-201
    発行日: 2016/02/25
    公開日: 2017/11/01
    ジャーナル フリー
    The current Japanese Constitution prescribes "Judiciary" on the seven clauses, from Article 76 to Article 82 in the 6th chapter. Neither the Diet nor the Cabinet is named due to their functioning powers, but the Judiciary is named due to its functioning power. The Meiji Constitution had the same chapter names. So it wouldn't be possible to find the special meaning there. But to use the same chapter names means that there are so big difference between the old and the new constitution in the impression received from and the contents to put the word Judiciary. Of course it is usually described that there is great difference between the old and the new constitution in their territory and authority and that is clear when we compare the actual systems. However the more its difference is emphasized in the actual system, the more we miss a lot of things. In this paper, I have tried to examine what kind of the Judiciary system was tried to be envisaged when the current Constitution was drafted, and at least, until its enforcement the Court Act was legislated upon review of the discussion that has been done around the judiciary. In particular, I have tried to clarify the issue of reappointment of the judges and the term of office of the judges of the inferior courts.
  • 齋藤 康輝, 杉山 幸一
    原稿種別: 本文
    2016 年 52 巻 1 号 p. 203-205
    発行日: 2016/02/25
    公開日: 2017/11/01
    ジャーナル フリー
    We are now awfully afraid that we might expose ourselves to a crisis of war or a crisis of various sorts of international disputes. In addition, we are also fraught with many other crises that are the natural disasters frequently happening in the rest of the world, such as an earthquake, a tsunami, and a flood. In the last recent years, we have met with other human crises, such as a meltdown accident of the nuclear power plant, an information leakage, or a cyber attack. We are greatly concerned about how we should cope with these crises. In our academic association of constitutional law, there has been a movement trying to grope for a crucial constitutional law theory from the viewpoint of solving the problems at the time of the crisis since the East Japan Great Disaster occurred in 2011. In particular, their discussion has been concentrated not only on their arguments over the possibility of ruling in a state of emergency, concerning about the possibility as to whether or not emergency powers should be prescribed in the constitution under the name of "crisis correspondence," but also on their arguments concerning the human rights, such as the right to life, the freedom of expression, and other human rights that should be protected in a state of emergency. Therefore, it is strongly required to have such a practical viewpoint as coping with these crises in terms of not only human rights but also the public welfare (public interest). In other words, it must be our national demand that we should proceed to reexamine the existing theory of the fundamental human rights. We have organized this symposium for the purpose of making a new desirable interpretation of the constitution in order to confront with a forthcoming critical age of the crisis. And we should simultaneously comprehend such a keyword as the "risk management."
  • [記載なし]
    原稿種別: 本文
    2016 年 52 巻 1 号 p. 207-208
    発行日: 2016/02/25
    公開日: 2017/11/01
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  • 大森 義夫
    原稿種別: 本文
    2016 年 52 巻 1 号 p. 209-218
    発行日: 2016/02/25
    公開日: 2017/11/01
    ジャーナル フリー
    It is a serious defect that the Constitution of Japan lacks the provisions responding to emergency situations from the viewpoint of national function. Such provisions are indispensable for not only dealing with national security issues but also controlling the large-scale natural disasters which are currently frequent. Therefore, it is necessary for the Cabinet or the Prime Minister to be authorized to impose a state of emergency. Although a crisis management system has practically and legislatively been established and improved in recent years in Japan, the problem relating to a creation of the authentic and authoritative intelligence unit remains. This is an urgent issue. In this paper, I will consider the social and historical conditions and background surrounding the establishment of such an intelligence unit in Japan.
  • 平松 毅
    原稿種別: 本文
    2016 年 52 巻 1 号 p. 219-230
    発行日: 2016/02/25
    公開日: 2017/11/01
    ジャーナル フリー
    (Die neue schweizerische Verfassung) 1 Die Entwicklungsgeschichte der schweizerischen Verfassung 2 Die direkte Demokratie - Volksvorschlag und Volksabstimmung 3 Uber das System, dass die Wahlkandidaten von einer bestimmten Zahl an Wahlberechtigten empfohlen werden mussen. 4 Uber die Bestimmung der Verfassung zum Schutze vor Willkur der offentlichen Gewalt und die Pflicht der Beamten gegenuber dem Volk, zuverlassig und gewissenhaft zu handeln. 5 Die Pflicht der Regierung, das Recht auf Berufsausbildung sowie auf Schulbesuch zu respektieren. 6 Die Praambel der Verfassung als die Massstabe fur die Abgeordneten bei der Beurteilung von offentlichen Interessen. (Das Grundgesetz des Deutschlands) 7 Die passive Wahlrecht fur Beamte 8 Die Europaische Union als Leben und Tod Deutschlands.
  • 東 裕
    原稿種別: 本文
    2016 年 52 巻 1 号 p. 231-251
    発行日: 2016/02/25
    公開日: 2017/11/01
    ジャーナル フリー
    The Constitution of Japan, which was made in occupied Japan in 1946, has no provisions for emergency powers. A number of constitutional lawyers have argued about the intention of the absence or luck of them since around 1956. Many of them appreciate the absence or luck of emergency power clauses positively and share the recognition that emergency power provisions in the constitution is naturally incompatible with the constitutionalism. On the other hand, in the arena of practical politics, it has been considered indispensable to the state to have legislation enabling the government to take emergency measures at the time of crisis since Japan restored its sovereignty and independence in 1952. But some laws relating to a state of emergency or crisis have been criticized unconstitutional by many constitutional lawyers. In 2012, Japanese ruling party LDP published the draft of an amendment to Constitution of Japan including the provisions for emergency powers. Coming up this draft, it is no more fruitful to argue why the Constitution has not provisions for emergency powers and researching its meaning. A new stage is coming to a discussion of an emergency power. Now it must be considered how the emergency powers should be provided in the coming revised Constitution of Japan. This article examines that how an emergency power has been discussed in Japan and proposes the necessity of introducing it into the Constitution.
  • 辻 雄一郎
    原稿種別: 本文
    2016 年 52 巻 1 号 p. 253-280
    発行日: 2016/02/25
    公開日: 2017/11/01
    ジャーナル フリー
    The decision making of the Congress delayed the Clean Air Act. From Bush to Obama administration, EPA has changed its policy to deal with the global warming. MA v. EPA decision held that GHG is "air pollutant" in mobile source such as the automobile, and also that administrative agency has the authority to regulate it. EPA thought that the consistency of interpretation demands GHG from stationary source regulated. The burden to be implemented is so heavy that EPA prepared the coordinated regulation. In UARG decision, majority opinion delivered by Scalia gave up the consistency of the text of CAA as a whole and limited the meaning of pollutant narrowly. "Anyway source" with BACT regulation is still to be reviewed. 2014 decision allows EPA to regulate GHG in Clean Air Act without amendment by the Congress. The Obama administration proposed "Clean Action Plan". Because of the dubious breadth of the text of the statute, the administrative agency may fill up the blank by a technical interpretation of the regulations or policy decisions. The role of the court is to respect the order of administrative agency by "Chevron doctrine". EME Homer decision defers to technical and expertise judgement of the agency. The cost effective approach showed by the Supreme Court is still unclear and to be considered with other decisions and methods of interpretation by Justice of the Supreme Court. According to Prof. Dan Farber, the S.Ct has picked up the cases of which influence is too narrow. The effect on other similar cases is ordinarily limited. The inferior court decision would continue to supply the blank. Roberts Court could have avoided the cases by standing doctrine. By applying the second phase of Chevron doctrine, Roberts Court proceed on the merit. In 2014 Scalia approach was stuck, in EPA v. Michigan is pulled punch to the environmentalism. The duty of Constitutional law scholar is to show the inconsistency of text of the statutes showed by the Supreme Court. Not only order of the administrative agency, interpretation by the judges is under the rule of law.
  • 下條 芳明
    原稿種別: 本文
    2016 年 52 巻 1 号 p. 281-286
    発行日: 2016/02/25
    公開日: 2017/11/01
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  • [記載なし]
    原稿種別: 本文
    2016 年 52 巻 1 号 p. 287-298
    発行日: 2016/02/25
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2016 年 52 巻 1 号 p. 299-301
    発行日: 2016/02/25
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2016 年 52 巻 1 号 p. 301-
    発行日: 2016/02/25
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2016 年 52 巻 1 号 p. 302-303
    発行日: 2016/02/25
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2016 年 52 巻 1 号 p. 304-305
    発行日: 2016/02/25
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2016 年 52 巻 1 号 p. 306-307
    発行日: 2016/02/25
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2016 年 52 巻 1 号 p. 308-
    発行日: 2016/02/25
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  • 原稿種別: 付録等
    2016 年 52 巻 1 号 p. 308-
    発行日: 2016/02/25
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2016 年 52 巻 1 号 p. App2-
    発行日: 2016/02/25
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2016 年 52 巻 1 号 p. App3-
    発行日: 2016/02/25
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2016 年 52 巻 1 号 p. App4-
    発行日: 2016/02/25
    公開日: 2017/11/01
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  • 原稿種別: 付録等
    2016 年 52 巻 1 号 p. App5-
    発行日: 2016/02/25
    公開日: 2017/11/01
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  • 原稿種別: 表紙
    2016 年 52 巻 1 号 p. Cover3-
    発行日: 2016/02/25
    公開日: 2017/11/01
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  • 原稿種別: 表紙
    2016 年 52 巻 1 号 p. Cover4-
    発行日: 2016/02/25
    公開日: 2017/11/01
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