The purpose of studying the relations between the common and the courts is, first of all, to explain what disputes on the common have been made and how the courts have dealt with the common. Secondly, this study contributes to the interpretation of the common, because it necessarily explains how the courts have interpreted the provisions of the civil law which prescribed that the common depended upon the habitual practices of each community.
Thus the author attempted to analyze one hundred decisions on the common from 1898, when the civil law was established, to 1967. The result of analysis reveals the following.
Examination of the kinds and the contents of cases showed that at first groups such as village communities were overwhelmingly involved; in the postwar period those involved were increasingly individual citizens. Moreover, there were many more suits on the possession of ownership in the postwar period than ever. This fact proves that the common has been transforming from a collective right to an individual right.
Generally speaking, court decisions upon these suits tended to protect the rights of village residents, showing the understanding of actual conditions of the common. At the same time, these decisions developed outstanding theories on the interpretation of the common. It is especially worthy of attention that the courts have considerably checked the governmental policy which disapproves the village residents' right to the common. Yet, the couts treated the common, from the point of modern theory of ownership, recognized the transformation of the common toward individual ownership, and even encouraged such a tendency.
To summarize, the decision protecting the right of village residents, persons entitled to the common, is based on a careful examination of history or habitual practices of the common. On the other hand, a decision disapproving the right of village residents is based on insufficient examination. It must be stressed, therefore, that the careful examination of facts is particularly important in the case of the common which depends upon habitual practices.

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Aside from state-owned forests, there are over 2, 000, 000 hectares of common forest in Japan. The common forest, as a general rule, is under the substantial control of village communities. Since the civil law provides that “the common depends upon the habitual practices of each community, ” legal decisions on the relations of rights to the common are generally made ih accordance with habitual standards.
In fact, however, the usages of the common forest have gradually changed since the early Meiji period, and the migration of people has increased. Consequently, there often arise conflicts on the existence of the common and on the bounds of the group possessing rights. Moreover, the land registration law excludes the common from the rights to be registered, has become less applicable to changing social and economic conditions, and puts great inconvenience upon practical business.
In order to improveniences, the Modernization of the Common Forest Act was established in July, 1966. The purpose of this act is to readjust rights to the common forest and to encourage the transformation of the common into modern and individual rights, instead of the common collective right of the people who have hitherto maintained habitual rights to the common forest. This attempt is fully opposed to the traditional policy which the government has taken since the early Meiji period and which restricts the common as a private right by enclosing the common forest into state and public lands. Thus this act might serve people's individual interest. There is a danger as well, however, that the enforcement of this act may produce the concentration of rights and may lead poor farmers to lose their rights.

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Inhaltsübersicht
1. Die Fragestellung
a) Peitsche und Zuckerbrot.
b) Der Gegenstand dieses Aufsatzes.
2. Die Entstehung der Theorie der Leistungsverwaltung
a) Der Dualismus der Verwaltung im bürgerlich-liberalen Rechtsstaat: die hoheitliche Verwaltung und die fiskalische Verwaltung.-Die Teilung der hoheitlichen Verwaltung in die obrigkeitliche Verwaltung bzw. die Eingriffsverwaltung und die schlicht-hoheitliche Verwaltung unter der Weimarer Verfassung.
b) Ernst Forsthoffs “Die Verwaltung als Leistungstäger” vom 1938.
c) Die Problematik der Forsthoff'schen Theorie der Leistungsverwaltung.
3. Die Entwicklung der Theorien der Leistungsverwaltung nach dem 2. Weltkrieg
a) Die Wandlung der Forsthoff'schen Theorie der Leistungsverwaltung.
b) Der Begriff der Leistungsverwaltung.
c) Der Sozialstaatsgedanke als Grundlage der Theorie der Leistungsverwaltung.
4. Die Leistungen und die öffentliche Sicherheit
a) Die Leistungsverwaltung und die Sicherheitspolitik in einigen Sozialstaatstheorien.
b) Die Problematik der Theorie der Leistungsverwaltung. Die Rollen, die die Theorien der Leistungsverwaltung spielen.-Die Problematik des Begriffs der Leistungsverwaltung.-Die Probleme der Rechtsdogmatik um das sog. Leistungsverwaltungsrecht.

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“Sozial-Leistungsverwaltung” in present Japan deals with unemployment insurance, vocational introduction, workers' accident insurance, and livelihood protection. This administration plays an important role in establishing the basis of state monopolistic capitalism. The leading part is the policy that absorbs from the people the fund for treasury loans and investments in the form of the national annuity through premium payment. The aim of this policy is to make the Japanese economy powerful enough to win in international economic competition. For the same purpose, the government policy is to restrict livelihood protection and unemployment insurance, to reduce expenses for social security, and to invest more parts of the national budget into other sectors which directly help the growth of the Japanese economy. At the same time, the government takes a policy to mobilize into wanting sectors man power necessary for the economic growth. This is done mainly by job placement by restricting the amount of unemployment insurance. The government emphasizes that these policies contribute to improvement in people's welfare, but the real aim is to maintain and strengthen the structure of the state monopolistic economy. The author calls these policies a “non-authoritative security policy.” Another aspect of this policy is revealed in the low standard of social welfare. Even though the welfare payment is too poor to support a livelihood, this perfunctory welfare policy prevents poor people from rising in a riot. Furthermore, the low standard of social welfare effectively makes a great difference between the recipients and others, and consequently prevents the rise of solidarity consciousness among people.
Laborers resist such a policy which represents the interests of the state monopolistic capitalistic economy. On the one hand, the government makes a concession as long as it can take the advantage, and at the same time emphasizes the increase in people's welfare by “Sozial-Leistungsverwaltung.” On the other hand, the government takes a policy to restrain people's movements and labor movements, when their demands and forms exceed the government's framework. The limits of the framework are generally determined by the power relations between the people and the government. Especially in “welfare states” oppressive provisions in various laws of welfare are often applied to this purpose in the name of people's welfare and the protection of citizen's lives. We call this the security policy as the method of maintaining and protecting the state monopolistic capital. When this policy does not work well, the government openly applies the criminal law and the Public Safety Regulations, and takes the original security policy.
The government practices the “non-authoritative security policy” as well as an authoritative security policy in order to maintain and defend state monopolistic capital. There is the prospect, however, that the distressed people, the labor class, will continue to resist such a policy and will force the government to change its policy.

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In modern society, state authority increasingly expands power on the grounds of “improvement of people's welfare.” This trend is also revealed in the sphere of criminal law.
In the sphere of criminal law, theory of the welfare state rationalizes security measures. One defender of the theory assessing between personal rights and social demands for public seculity and another defender evaluating them on the grounds of the necessity for the security of civil life, both deem them favorable. In the process of amending the criminal law in Japan, security measures are considerd on the basis of their rationality, results, and the social welfare thought.
The classical civil criminal law rejected security measures. In present days criminal law involves the dangers of infringing on human rights and political abuses. Security measures are applied particularly to criminals subjective and emotional jeoparday rather than to his objective jeoparday. These abuses are typically shown in precautionary measures of the Public Order Acts in prewar Japan and also in the Nazis' concentration camps. In the process of amending the criminal law, therapeutic measures and habit remedy measures tend to be adopted, but the essentials are not always clear. Indeed, there is an opinion that therapeutic measures should be applied to psychopathic personality types. However, since the concept of psychopathy is not clearly established, there is danger that ideological evaluation could easily intervene. In fact, considerable numbers of democrats and socialists were consigned to oblivion in the past by being branded as “psychopaths.” Another ambiguous concept is revealed in indeterminate sentences upon habitual criminals. Moreover, since poor medical administration is quite bad for the name of the welfare state, there is a great possibility with regard to security measures that the preservation of public security may precede medical treatment and education for criminals.
The Juvenile Law in principle gives priority to educational treatment under the concept of “parens patriae” of the welfare state. In fact, however, educational treatment is neglected because of poor conditions in human and material service, and instead the public security is stressed. The Japanese Ministry of Justice is working out a scheme for amending the Juvenile Law, pursuing a policy to further restrain juveniles. Though this policy emphasizes for its reason the increasing and worsening tendency of juvenile crimes, it shuts its eyes to social causes for those crimes. It must be added that this amendment will play an important part in the “policy of educating people.”
police intervention into citizen's lives has become a serious problem since the revision of the U. S.-Japanese Security Treaty in 1960. The state has always stressed its role as a protector of citizens, and has especially advocated the “elimination of violence.” In effect, however, the policy of “elimination of violence” is mainly directed against the exercise of fundamental human rights. People's objections make it quite difficult to establish or apply an act designed for political restraint. It is also true that the government has expanded the security organization including the Self Defense Force. Indeed, there is a trend that the government may propose a new bill, preparing for the year 1970, the time for re-examining the U. S.-Japanese Security Treaty. This trend is closely related to the enlargement of state crimes and public crimes in the process of amending the criminal law. Thus, the enlargement of the “security criminal law” is a product among the ruling class of the consciousness of a critical situation. Yet, the ruling class explains that these actions are necessary for protecting the “democratic state and the welfare state” as they call it.

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The number of public servants in Japan is estimated to be about 3 and half millions today. As the whole number of employees in Japan is about 30 millions, this number means that nearly 12 per cent of Japanese employees are under national and local governments. The increasement of the number of public servants is due to the developement of the economic and industrial activities of the State, and is not a peculiar phenomenon in Japan but world wide one after the World War II. But the public service system in Japan is different to those in other countries. Before the War, the legal principles of Japanese public service system were theoretically based upon the 'Beamte' system of Germany and it composed the core of the bureaucracy of Japan. After the War, the Government of U. S. A., as an occupational force, introduced its own public service system to Japan in 1947. This system was called as a scientific and 'rational' public service system intended to secure the cheap and effective public service to the whole community and established the job classification system as its technical and theoretical stay for personnel management. In Japan it melted with the traditional 'Beamte' system, and created peculiar one in practice. Its main object was changed in 1948 to depriving the right to strike of public servants, who were organized to the biggest trade unions in Japan. Since then, the trade union movements of public servants developed “Recovery of the deprived trade union rights” movement, and made the Government to ratify the International Labour Convention No. 87 (Freedom of Association and Right to Organize Convention, 1948) in 1965. Against this movement, the Government amended both the national public service law and local public service law (1965), to contorol public servants under new legal system. This system is characteristic of new and 'rational' personal management; maintaining the ban on the right to strike, restricting more the rights to collective bargain and trade union activities, and strengthening the personnel management organizations. The author analyses, such aspects of the developement of public service policy in Japan; its reality, legal framewark, and laws in practice, including the case law, which developed through conflicts between the policy and the public servants' trade union movements.

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