法社会学
Online ISSN : 2424-1423
Print ISSN : 0437-6161
ISSN-L : 0437-6161
1982 巻, 34 号
選択された号の論文の22件中1~22を表示しています
  • 小林 直樹
    1982 年 1982 巻 34 号 p. 2-15,291
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
    To reconstruct the unbalanced Budget in its recent critical conditions is one of the most important problems for the Japanese Government to-day. Nevertheless under the slogan of the Budget-reconstruction, the whole Budget-especially military expenditure-has been expanded these several years, and moreover the injustice of unfair taxation has been-in spite of the public opinion-never reformed. In this paper the writer does survey and analize the actual Budgetprocess of Japan, and through such positive observation he points out some important problems, which should be resolved from the viewpoint of the people in terms of the democratic government.
    As the remarkable phenomena, the writer noticed for instance: i) increasing influences of the Government Party (LDP) in the Budget-process; ii) decrease of the prestige of the Finance-Ministry; iii) influence of the faction (or clique)-dynamics in the Government Party to the budgetary process; iv) preference of the Military Budget and its reasons, etc. Considering the specific meaning of the reinforcement-policy of the military powers, he observes the structure of the Japanese Government, and asks for the possibility of really democratic control of the Finance.
  • 宮本 憲一
    1982 年 1982 巻 34 号 p. 16-26,291
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
    The National Grant has many problems. The first point, there are some strings attached to the resources, and what is or is not subsidized and the rate of subsidy is determined soly by the national government. Although the national grant is only 20% of the amount of the total local revenue, local governments contribute almost the same amount as the national government to do a national project, therefore it may be said that 40% of the financial resources of local governments must be used for national projects and these national grant projects are among the most important projects. Thus, the local budget is decided by the national policy.
    And the second point, because the national government determines what is to be the national grant project, this results in smaller amount of subsidy than actual total outgoing costs. This in turn results in deficit financing.
    It may be said that this kind of centralized feature of local finance prevents the development of local selfgovernance.
    The financial mechanism necessary for transference of a source of taxation is the national grant. Sharp adjustment should be made on the national grant system, allowing independent financial operation of local areas.
  • 北野 弘久
    1982 年 1982 巻 34 号 p. 27-42,290
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
    (1) Despite the huge deficit in our national government as well as in most of the local governments, a trend to increase defense expenses and to decrease welfare expenses is continuing. Due to this, the constitution's "renunciation of war" clause is, in fact, disregarded; the "minimum standards of living" clause is losing ground; and generally our constitutional democracy is being corroded. Therefore, I believe that taxpayers (or citizens) should have more effective legal ways to control the fiscal activities of our national and local governments.
    (2) Under the constitution fiscal democracy is the most important principle applicable to all government fiscal activities. A fiscal parliamentary rule derived from this principle has been historically very popular, but, in my view, it has not gone far enough. It should be emphasized that in the legal view the above fiscal democracy must ultimately contribute to secure procedurally the taxpayer's fundamental human rights, which I have proposed before, in legislative, administrative, and judicial processes.
    (3) Discussing more effective judicial control of government fiscal activities, especially spending, we must develop a new concept of taxation which is linked to spending-i.e. collectively integrated revenue and spending. The protection of the taxpayer's fundamental human rights are based on this concept. According to this premise, when the government spends public money unconstitutionally or illegally, a taxpayer can say that his taxpayer's fundamental human rights have been violated, and standing should be awarded to challenge the government in a taxpayer's suit, classified as one of Lawsuits based on individual rights or interests. I will attempt to prove this taxpayer's standing, examining the constitutional limits of the government fiscal activities.
  • 自治体財政権の憲法規範的意味とその検討方法
    山下 健次
    1982 年 1982 巻 34 号 p. 43-48,289
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
    1. On finance, the Constitution provides in Chap. VII for "the power of the Diet to administer national finances", while on the finance of local entities, it merely refers to "the right to manage their property" (Art. 94). This reticence makes it imperative to consider the constitutional protection of local financial right as an integral part of their power "in accordance with the principle of local autonomy".
    2. Under the "institutionelle Garantien" theory, the right might be classified as essential. Yet, any objective standard to distinguish the essential from the non-essential isn't built-in, making it unfeasible to crystallize the right.
    3. Although Kitano's theory involves notable propositions, proposed tests are left elusive.
    4. Problems on constitutional protection range from its objective through the means to the legal consequences. Difficulty in ascertaining the proper means required by the Constitution can't legitimize entirely entrusted choice of means with the legislator's discretion.
    5. (1) An attempt should be made to correlate the objective of protected financial right with the protection of human rights. It is, however, found at the level of objective or ideal.
    (2) To limit governmental discretion in favor of local financial right, constitutional theories should be elaborated; ones rendering scrutiny of unfavorable consequences on the entity inevitable.
    (3) To secure the financial resourses, law-making perspective should be drawn to such methods as local taxation and grants of subsidies, to their combination and to their respective improvement.
    (4) To determine whether the selected method has attained the subjective, verification in terms of "legislative facts" is indispensable. Collaboration of lawyers with specialists on finance is accordingly enhanced in its significance.
  • 三木 義一
    1982 年 1982 巻 34 号 p. 49-53,288
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
    Einleitung
    2. Der Begriff "Vorteil" im Beitragsrecht
    2. Beiträge und das Rechtsstaatsprinzip
    Beschluß
  • 福家 俊朗
    1982 年 1982 巻 34 号 p. 54-60,288
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
    Article 21 of the Finance Act confers the Minister of Finance the power to make the draft budget and Paragraph 1 of Article 18 of the said Act confers the said Minister the power to make necessary adjustments upon the budgetary demands presented by other Ministries and Boards. This report analyzes how this discretionary power of the said Minister makes the actual process of making the draft budget political and discusses how this power could be exercised under the democratic control, refering to some appropriate legislative reforms.
  • 討論
    小林 直樹, 小沢 辰男, 宮島 尚史, 池田 恒夫, 三木 義一, 星野 安三郎, 吉田 善明, 及川 伸, 宮本 憲一, 北野 弘久, ...
    1982 年 1982 巻 34 号 p. 61-83
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
  • 千葉 正士
    1982 年 1982 巻 34 号 p. 84-94,287
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
    Some suggestions are made on how to advance theoretical analysis of social conflict and its management in reply to two reviews of the author's book, Law and Conflict published by Sansei-do, Tokyo, in 1980.
    First, admitting the mentioning of Takao Tanase in his commentary on the book, the author urges specialists in law to examine how existing legal institutions of conflict management are operating along with sociological and anthropological achievements.
    Then, rebutting as groundless the Takeyoshi Kawashima's suspicion of being misunderstood as expressed in an article, the author emphasizes mutual respect for others' different approaches as more important than insistence on one's own approach.
  • 矢崎 光圀
    1982 年 1982 巻 34 号 p. 95-96,287
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
    This is a simple note for grasping the meaning of the law in modern society both in terms of the law as an empirical phenomena and an appealing to individuals' legal consciousness, in regard to Professor T. Kawashima's paper.
  • 労働過程の過失責任判定の方法に関連して
    野沢 浩
    1982 年 1982 巻 34 号 p. 97-101,286
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
    1. On a terminology of "forensic human engineering" in comparison with forensic medicine The forensic human factors experts in USA
    2. Regulating factors of workmen's negligence in the working process
    i) a fault of man-machine system 1 (mainly, fault of machine and apparatus)
    ii) a fault of man-machine system 2 (mainly, fault of working action)
    iii) a fault of working system and personnel arrangement (direction system, number of workmen, working load)
    iv) a fault of workshop (working space, lightning, noise, vibration, temperature)
    3. A few accidents and workmen's negligence
    i) accidents of a large truck in time of left-turning
    ii) collision of railroad trains
    ii) accidents of airplane controlling
  • 大橋 信夫
    1982 年 1982 巻 34 号 p. 102-106,286
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
    For the purpose of investigating skills in ship manoeuvring work, many field researches were made by us. Verbal communication among navigation staff was analyzed by clasification according to content and function and by drawing sequential diagrams. And verbal communication proved to play a vital role in ship manoeuvring work by decreasing uncertainty and indeterminacy of relevant informations. Also it was found that inferrings which we often observed in their communication have very important role to make a decision under the circumstance that they cannot obtain certain information to manoeuvre their ships in safety. As it become more hard to operate their ships at night, the role of inferrings become more important. About 30% of messages were questions, confirmations, reconfirmations, or inferrings as to the existence, distance, and direction of other ships, including many uncertain expression.
    According to our other data of changes in heart rates of ship manoeuvrers while they were manoeuvring their ships in narrow channels and harbours, it was found that their heart rates came upto 110, 120, and sometimes nearly 140 beats per minute. The results of nearly 100 cases studies showed significant changes in their heart rates when; (1) there was a need of more information to maneuvre the ship; (2) the needed information to manoeuvre the ship was not obtained; (3) important decisions were made by the manoeuvre. As the physical movements of manoeuvrers were limited and as the changes in the heart rate corresponded well with conditions of their ships, these observed changes in their heart rates could be attributed to mental strain. Therefore, it is clear that ship manoeuvrers, are now under the circumstance that are obliged to maintain safety and security and to ensure ships against sea hazards under extreme conditions without certain informations with very poor manoeubrability of ships.
    In the other hand, when we analyse relevant laws and regulations and judicial precedents of Maritime Court from psychological aspects, it become clear that they are thinking most of disasters and accidents were caused by faults and negligences of ship manoeuvrers and that they do not pay attention to said circumstances.
    We are thinking it is urgend need to understand and realize (1) skills of works, (2) possibility of engineering, (3) content and meanings of relevant laws and regulations. And it shoud be pointed here that we have to develop the study to improve mutual relations among mentioned three factors. Otherwise, we cannot decrease disasters and accidents not only at sea but also on land.
  • 死角と結果予見可能性との関係を中心に
    長井 圓
    1982 年 1982 巻 34 号 p. 107-110,284
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
    After World War II have been extremely increasing traffic accidents also in Japan. For the ordinary legalpractice the most important type of criminal liability for negligence relates to motor vehicles. So the justification of punishment for negligence in the wide sense needs reasonablefpreseeabo; oty or evitability of the accident in stead of strict liability. On the other side, criminal products liability needs another standard? They demand the empirical research not only for the objective standard of negligence but also for the limit of foreseeability of human being (driver). In order to contribute new information about them, Forensic Human Factors should try to present new tecnological rules adaptable to the fact findings in trial.
    There are two ways to prevent road traffic accidents. Human nature is unvariable, but machinery and environment are variable. On this Human Factors theory, the remedy must be better highway and mechanical engineering. For example, large motor vehicles have wide bling corners, which the makers will be able to reduce in the near future. But, we have dangerous environment now. We do not live in Utopia. So, we should do prudent, cautious and circumspect driving. This is an utilitarian justification of punishment for negligence.
    If a driver would be careless in running a girl down on the left blind corner, his offence should not always have been due to negligence. Because, blind corners are not always unforeseeable point. Before then he could see her and so on.
    In short, the remedy of dangerous circumstances and the control of careless behaviour must complement each other. But, the prevention of accidents can be realized more by exclusion of dangerous conditions under the present environment than by punishment of negligence. These matters are of small concern to lawyers and moralists who see the prime cause of accidents in human wickendness and folly. Therefore, we hope that Forensic Human Factors would be able to find mote reasonable legal control of circumstances and standard of negligence.
  • 固有法•移入法•発展法
    安田 信之
    1982 年 1982 巻 34 号 p. 111-116,283
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
    Legal pluralism is a striking feature of Asian legal system. It is commonly recognised that there are two types of law or legal system in this area. They are "indigenous law" and "recieved law".
    The indigenous law has its origin in the pre-colonial society, and this type of law depends its basic value on the "community principle" or "reciprocity" (by K. Polanyi). In the course of colonization by the modern western countries, western law was introduced into these Asian countries (received law). The basic nature of this type of law may be characterised by the "market principle" or -"exchange" (by Polanyi), which is a key concept of western capitalism and also its political system. But this law has not been swept out the indigenous law especially in the rural area yet, although it was seen during the modernisation of the western socity. Therefore two types of law having different principle have been co-existing and often opposing each other in these countries. It shall be noted that this legal dualism is the reflection of economic and social dual stractureresulting from the colonial rule.
    Since the independence of Asian countries, it seems that a new type of law has been emerging for promoting to build their national economies and reforming their economic and social system. These legislations may be called the "development law" laying stress on their aspiration for the development. For achivingthis aim, they commonly delegate a wide discrtionary power to the government, because it is essential for the government to channel or force the people to act for the national development goal. Thus the basic principle of this type of law can be summerised as the "control" or "redistribution" (by Plolanyi).
    But these three types are not enough for analising the present legal situation in Asia. It seems essential to convert them into more functional conception. For this purpose, it is proposed to set up three types of legalprinciple, they are, "community law", "market law" and "control law".
    Although the legal system as a whole is unified under a single legal principle in the western countries (market law) and in the socialist countries (control law), There are three types of principle whcich are co-existing and conflicting each other in Asian countries, and none of which can get a dominant status. This is the actual situation of legal pluralism in this area.
  • 小林 三衛
    1982 年 1982 巻 34 号 p. 117-121,282
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
    Afghanistan Revolution broke out April 1978. Its political power exchanged from Taraki to Amin, from Amin to Karumal in a short term. The Soviet Union intervenced to Afghanistan by military affairs December 1979. Afghanistan Revolution has lacked general public basis in its progress.
    "Basis Lines of Revolutionary Duties of Goverment of Democratic Republic of Afghanistan" by Taraki, chairman of the Revolutionary Council at first mentions land reform about the fundermental social and economic change. The proclamation No. 8th Revolutionary Council December 2, 1978, gives land reform. I name it "Land Reform Act". It has people's democratic character, but its enforcement isn't always smooth. I think this fact is caused that Afghanistan Revolution has lacked general public basis.
  • 渡辺 洋三, 稲本 洋之助, 原田 純孝, 鎌田 薫, 利谷 信義, ユングニッケル J, 田山 輝明, 広渡 清吾
    1982 年 1982 巻 34 号 p. 122-151,282
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
  • はじめに
    稲子 恒夫
    1982 年 1982 巻 34 号 p. 152-152,280
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
    Planning is one of the most important functions of the contemporary state. Our study group is to analyse some of legal aspects of planning on the following.
    (1) Major National Plannings after the Second World War
    (2) Hierarchy of Plannings
    (3) Planning and Statutes
    (4) Planning and the Congress
    (5) Enforcement of Planning
    (6) Planning and Local Government
    (7) Planning and Private Enterprises
    (8) Democratic Control over Planning
    (9) Legal Studies about Planning
  • 村上 博
    1982 年 1982 巻 34 号 p. 153-157,280
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
    In France, legal phenomena of planning have advanced a new progress in accordance with a new development of economic policy after 1967. In the first period, up to 1963, an idea of planning interlocked with state conducting of economy had been denied under the economic policy of social market. Through the second period of transition, however, the third period after 1967 is characterised by the fact that planning has been actively introduced as the means of the state to guide the economy under the policy of general directing.
  • 見上 崇洋
    1982 年 1982 巻 34 号 p. 158-161,279
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
    1. The Development of French Economic Planning.
    2. The French Planning System.
    3. The Legal Basis of French Economic Planning.
    4. The Traits of Planning Process. -"concertation" and its crisis-
    5. The Legal Effect of Economic Plan.
    6. The Local Autonomy and Economic Planning.
    7. The Legal Concept of French Economic Planning.
  • 神長 勲
    1982 年 1982 巻 34 号 p. 162-165,279
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
    This small report is to sketch the system of and a legal discussion on it in U.S.A. At first, outlined is the system of planning in land use controls. Next, introduced is, in the context of general trend of American administrative law science, a new approach to "legalisation of planning within the growth of the administrative state".
  • 戒能 通厚
    1982 年 1982 巻 34 号 p. 165-169,278
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
    The purpose of this report is to explore some of the factors which cause the evolution of the 'state intervention' through the processes of the governmental planning after the Second World War especially in the late 1960s and to settle how these factors bring about the political and constitutional changes in this country (I mainly discussed about the situations in England and Wales). It is a peculiarity of British Constitution that the principles governing the formation and working of the Cabinet and its relations with Parliament can be stated with hardly any reference to the law (see I. Jennings; Cabinet Government). The same as this, a further development occured in the 1960s when the Mr. Wilson's Labour Government entrusted economic planning to a new department and in 1970 when a new Prime Minister, Mr. Heath, introduced a central policy review staff (C.P.R.S.) into the Cabinet Office. Here the influence of the American theory of public administration was very apparent. But it should be noted that these changes in the central government do not necessarily mean the development of overlordship of Prime Minister or that of a pyramid co-ordinating governmental agencies. In this report, I further discussed about the problem of nationalisation of the industries under the Labour Governments and about the relationship between ordinary Court of Law and administrative (some learned Professors express as 'special') tribunals.
  • 稲子 恒夫
    1982 年 1982 巻 34 号 p. 170-173,277
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
    In USSR, unlike the capitalistic states, basic means of production are nationalised and planning are made and enforced throughout every sect of national economy. In the middle of 1960s and at the end of 1970s, some reforms in the system of planning of national economy were carried out in order to make managing the nationalised enterprises more effective. Today, the systematization and codification of statutes, about planning have been in progress.
  • 1982 年 1982 巻 34 号 p. 174-183
    発行日: 1982/04/15
    公開日: 2009/01/15
    ジャーナル フリー
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