法社会学

「正義の総合システム」のなかの調停•苦情処理

小島武司

1981 年 1981 巻 33 号 p. 1-31,288
発行日: 1981/04/15
公開日: 2009/01/15

DOIhttps://doi.org/10.11387/jsl1951.1981.1

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The modern welfare state has to be built on a democratic basis. In order to preserve a welfare state which is human and responsive to people's needs, systems of justice as a forum for establishing rules of law and for debating policies and issues of legal value must be established.
The systems of justice should, in the author's view, have a comprehensive structure consisting of a variety of mechanisms for redress so that the ideal of universal access to justice can be realized. There should be exploration toward creation of effective mechanisms which can function as intermediates between litigation in court and negotiation by the parties. Japan is the most suitable place for developing a theory on comprehensive systems of justice, since mechanisms designed for dealing with settlement of disputes in the intermediate stage, including, among other things, traditional mediation and new procedures for handling administrative grievances, have proven to be successful.
Functional interrelation or exchange can be found among various mechanisms. Legal standards established by court decision penetrate other processes, while standards formulated in the process of mediation or handling grievances sometimes penetrate judicial decision. That is to say, ripple effects run in both directions in comprehensive systems of justice. Starting from such hypothesis, the author examines the multi-level structure and real function within the systems by analyzing social facts and court decisions.

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法社会学の一般理論 (general theory) のために

川島武宜

1981 年 1981 巻 33 号 p. 32-64,287
発行日: 1981/04/15
公開日: 2009/01/15

DOIhttps://doi.org/10.11387/jsl1951.1981.32

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1. Prologue.
2. The need of a General Theory of Sociology of Law.
3. The need of a General Theory of "the Law".
4. Social Control and Social Sanction.
5. "Conflict" and "Dispute".
6. Epilogue.

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序論

北川善太郎

1981 年 1981 巻 33 号 p. 66-78,287
発行日: 1981/04/15
公開日: 2009/01/15

DOIhttps://doi.org/10.11387/jsl1951.1981.66

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This introduction is an atempt to formulate a realistic approach to the comprehensive system of loss compensation (higai kyusai). The term "loss" (higai) in this report is not limited to damage or injury. It means the difference between expectations and reality of any kind. The report focuses mainly on the theory of loss. It sorts out typical losses, e.g., political loss, judicial loss, administrative loss, transactional loss and environmental loss. It then spells out the types of persons who have suffered loss, persons who have caused loss, causes of loss, and interests or values lost or endangered as key factors regarding the theory of loss compensation. It also analyzes the possible combinations of various key factors. (For example, the social or public interest may be affected adversely as the consequence of loss of private property sustained by an individual person, such as we often see in the case of traffic accidents.) The report ends with a brief overview of the theory of compensation.

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国家賠償法について

さいきんの「被害」とその法的対応状況について

下山瑛二

1981 年 1981 巻 33 号 p. 79-88
発行日: 1981/04/15
公開日: 2009/01/15

DOIhttps://doi.org/10.11387/jsl1951.1981.79

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独占禁止法について

布村勇二

1981 年 1981 巻 33 号 p. 89-98,286
発行日: 1981/04/15
公開日: 2009/01/15

DOIhttps://doi.org/10.11387/jsl1951.1981.89

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The Japanese Antimonopoly Law, by prohibiting private monopolies, unreasonable practices in restraint of trade and unfair methods of trade, seeks to promote free and fair competition and thereby promote the democratic and sound development of the national economy as well as to assure the interest and welfare of the general consumer. To this end and to implement the Law, the Law itself sets forth administrative regulations, criminal regulations and civil regulations. Administrative regulations are especially important in implementing the provisions of the Law. This report seeks to analyze the real nature of injury arising out of any violations of this Antimonopoly Law and to deal with the way of seeking, and the requirement related to obtaining, private relief. Especially significant is a §25 action, which is an original devise that renders the right to recover damages without prejudice to the injured person after a judgement has been given. This report, after pointing out the requirements of a §25 action, analyzes the various aspects of private relief for the injured person. It then seeks to classify the various categories of injuries arising out of violation of the Antimonopoly Law in order to ascertain the proper remedy in conformity with the nature of the injury to the injured person.

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シンポジウム「被害者とその法的保護」

討論

西原 , 岩井 , 相原 , 山田卓生, 宮島 , 北川 , 渡辺 , 千葉 , 谷口 , 下山 , 山下 , 井戸田 , 丹宗 , 布村 ...

1981 年 1981 巻 33 号 p. 99-127
発行日: 1981/04/15
公開日: 2009/01/15

DOIhttps://doi.org/10.11387/jsl1951.1981.99

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財産区の法社会学的考察 (報告要旨)

静岡県賀茂郡河津町財産区にみる

平松紘

1981 年 1981 巻 33 号 p. 128-133,285
発行日: 1981/04/15
公開日: 2009/01/15

DOIhttps://doi.org/10.11387/jsl1951.1981.128

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I have reported in this statement on "Zaisanku" from the socio-legal point of view. "Zaisanku" is a concept which refers to the legal property, such as forests and fields, over which an entity has control. This entity may be regarded as a quasi municipal or other local corporation, since it may consist of inhabitants or so-called "commoners" of the area where such forests and fields are located. Commoners have a right of common which can be exercised in the land of others. The rights of the commoners in relation to such property have a historical base or origin, and we must study "Zaisanku" as a problem which presents contradictions or inconsistencies between law and reality.
I approach this problem in my study on the basis of my research related to the realities of "Zaisanku" and the inhabitants consciousness or awareness of the problem in the town of Kawazu in Shizuoka Prefecture. I have suggested an indication that "Zaisanku" is not the legal property of that town but the property of a new autonomous body of inhabitants, including commoners who have a right of common.

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自作農創設維持補助規則について

広瀬正明

1981 年 1981 巻 33 号 p. 134-137,284
発行日: 1981/04/15
公開日: 2009/01/15

DOIhttps://doi.org/10.11387/jsl1951.1981.134

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Japanese capitalism in the 1920's was in a crisis, and many tenant disputes arose. The government, therefore, constituted the Tenant System Research Committe to reform the tenant system. The TSRC established three plans as set forth in the Tenant Act and the Rule in respect of the Independent Farmer establishing and maintaining the system. The Rule related to the Independent Former was enacted in 1926. This paper traces discussions within the TSRC and other places in an effort to clarify this rule.

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障害者の社会参加と損害賠償

上野訴訟をめぐって

井上英夫

1981 年 1981 巻 33 号 p. 138-143,284
発行日: 1981/04/15
公開日: 2009/01/15

DOIhttps://doi.org/10.11387/jsl1951.1981.138

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The United Nations proclaimed the year 1981 as the International Year of Disabled Persons.
The purpose of the Year is to promote the realization of the following goals: "full participation" of disabled persons in the social life and development of the societies in which they live, "equality", meaning living conditions equal to those of other citizens in their society, and equal share in the improvement of living conditions resulting from social and economic development.
Member States are requested to provide adequate conditions, including unhindered access to various premises, in the interst of the full participation of disabled persons in education, work, and sports and other forms of recreation.
In Japan, there are many restrictions and discriminatory practices that limit the freedom of the disabled to fully participate in society.
This report is, therefore, a review of how the disabled is treated in cases of damages for personal injury and within the context of welfare policy.

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アフガニスタンの法と社会 (報告要旨)

小林三衛

1981 年 1981 巻 33 号 p. 144-148,283
発行日: 1981/04/15
公開日: 2009/01/15

DOIhttps://doi.org/10.11387/jsl1951.1981.144

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There are several important elements to be considered in examining the Afgan law and society. We must note that Afganistan is a dry land, that Islam is the state religion which most people of that country believe in, and that because of its strategic location several races have invaded it from both East and West over a long period of time. Its history is thus characterized as one of victory and defeat (rise and fall), with the result that its racial composition is complex.
Since Afganistan is a dry land, irrigation is indispensable, and the so-called irrigation process known as "Kalez irrigation" is the distinctive feature of dry land. Kalez can be described as an underground waterway. It requires proper techniques, labour and costs to construct the Kalez. Since the constructor rules the water, land possession is influenced by him, too. All these are influencing the social structure of the country.
Islam concepts permeate the entire structure of the country, thereby restricting law and society. The constitution and acts passed by the country are established in the name of Allah, and the customary law concerning irrigation is said to be in accord with the dogma of Islam.
Racial composition is complex, with each race having its own society. It would be inaccurate to state that national law in general prevails in Afganistan. an indication that "Zaisanku" is not the legal property of that town but the property of a new autonomous body of inhabitants, including commoners who have a right of common.

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人権としての環境権

松本昌悦

1981 年 1981 巻 33 号 p. 149-153,282
発行日: 1981/04/15
公開日: 2009/01/15

DOIhttps://doi.org/10.11387/jsl1951.1981.149

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Many problems related to air, water, and environmental pollution have arisen in our country recently. In order to prevent these problems, a right known as "Environmental Right" was conceived as a human right under constitutional theories. Support for this environmental right is concretely provided for in Articles 13 and 25 our constitution. There are in effect, provisions which guarantee the right to maintain life. In other words, the content of this new right is one which is included under basic human rights. For instance, the former article guarantees the right to life, liberty, and the pursuit of happiness, and, the latter one guarantees the right to maintain the minimum standards of wholesome and cultured living.

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象徴天皇制の成立過程と成立要因

古関彰一

1981 年 1981 巻 33 号 p. 154-156,282
発行日: 1981/04/15
公開日: 2009/01/15

DOIhttps://doi.org/10.11387/jsl1951.1981.154

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During the Potsdam Declaration, the U.S. government could not decide on the treatment of the Japanese Emperor after the country's defeat in war. The Japanese Emperor's Constitutional status as a symbol was provided for directly by the Occupation Forces (SCAP/GHQ). During the policy-making process, however, the Occupation Forces surveyed Japanese public opinion on the question of the Emperor system. Almost all of the Japanese, differing from the Japanese government's constitution draft, had hoped to improve the Emperor system by making it a nominal system without having sovereign power. We can conclude, therefore, that the consciousness of almost all of the Japanese people in respect of the Emperor system at that time.

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社会的事実としての法規範に関する一考察

徳永賢治

1981 年 1981 巻 33 号 p. 157-162,281
発行日: 1981/04/15
公開日: 2009/01/15

DOIhttps://doi.org/10.11387/jsl1951.1981.157

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The purpose of this essay is to explain the dynamic process in which the observed social facts can have normative meaning.
But looking at the problem from the point of view of the dualism of Norm and Fact, it is impossible for Norm to be made dependent on Fact, since the dualism holds that the normativity of legal norm cannot be reduced to social facts.
I thus proposed to examine a part of the works of three writers, A. R. Anderson, H. Kelsen and Th. Geiger. According to Anderson, the concept of law can partly be analyzed on the level of deontic logic. According to Kelsen, it can be analyzed on the level of the norm. And according to Geiger, it can be analyzed on the level of social facts.
In my opinion, however, there are apparently concepts which these three writers would say differ from their own, but they all will contribute to explaining the complex, dynamic correlation between Norm and Fact. If such a dynamic process of norm-fact and such an explanation of it are lacking, the legal norm will lose its living spirit.

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日本法社会学会一九八〇年度学術大会報告要旨

1981 年 1981 巻 33 号 p. 166-177
発行日: 1981/04/15
公開日: 2009/01/15

DOIhttps://doi.org/10.11387/jsl1951.1981.166

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