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[in Japanese]
1986 Volume 1986 Issue 38 Pages
2-7
Published: April 20, 1986
Released on J-STAGE: January 15, 2009
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Takehisa Awaji
1986 Volume 1986 Issue 38 Pages
8-18
Published: April 20, 1986
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Makoto Mitsui
1986 Volume 1986 Issue 38 Pages
19-29,222
Published: April 20, 1986
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The object of this paper is limited to the rights of suspects and defendants. Using the right of confidential commnications between the counsel and the suspect or the accused as a specific example, and surveying the transition of such risuch ghts from pre-World War II until the present, with respect to the development of rights by statutes, it can be seen that the case law and the offense and defense between the parties have important meaning thereto. The aforementioned is fundamentally applicable to the entire rights of suspects and defendants. Althrough the problem exists under such a backdrop, other issues with respect to the criminal law are its system, structure, realities, facts, objectives, and burdens. However, we shoud not shut our eyes to the role of the defense attornies in the stitutionalisation of the above mentioned rights.
When the attorney's activities are viewed from a broader, bird's-eye perspective, the problems involved are not small. Future issues include an examination of the limitation of the view to insure the rights of suspects and defendants through the activities of defense counsel. Also, there is the analysis based on an inquiry of the people's consciousness of law and the societal factors underlying that consciousness, with respect to human rights in criminal procedure.
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Hajime Nito
1986 Volume 1986 Issue 38 Pages
30-35,222
Published: April 20, 1986
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After 1975, Japan embarked upon a path of rapid industrialization based upon various economic development policies; pollution spread across the land proportionately. The government passed the Basic Law of Anti-Pollution Measures and other laws, but the fundamental idea of those countermeasures was to harmonize anti-pollution laws with economic development. Under this type of thinking, the harm increased more and more. The injured citizenry sought the help of the courts and raised claims throughout the country. However, many of the attorneys for such litigation believed that adequate relief was difficult because of the principle of "limit of endurance" which formed the basis of the theory of relief under private law. Therefore, they sought the development of a new theory which change this. Upon this background, and touched off by developments in the ideas of environmental rights developed in U.S. and German statutes and case law and the claims of economics scholars, the establishment of enviromental rights was advocated in 1970, at the National Federation of Japanese Bar Association's human rights conference.
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Yoshiro Isayama
1986 Volume 1986 Issue 38 Pages
36-41
Published: April 20, 1986
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Yoichiro Yamakawa
1986 Volume 1986 Issue 38 Pages
42-47,221
Published: April 20, 1986
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This writer will report on the situation faced by a defense lawyer in a disputed case when he earnestly tries to develop his defense. Based on my experience as an attorney, I must conclude that suspect/defendants' rights are definitely on the decline. The repression of these rights during the investigations by the police and prosecutors, and the ratification of such methods by the courts, is a reality of criminal procedure. For example, with respect to the communications between the counsel and the accused, although the Supreme Court's decision of July 10, 1973 declared the illegality of socalled "general designations, " in its aftermath, restrictions on the communication continue while most "quasi-appeals" (junkokoku moshitate) raised against those restrictions have been dismissed. The harshness of the suspect interrogation is a widely-known fact. The voluntariness of the confession thus obtained is generally upheld during the trial. A typical example of this is the guilty verdict in the recent Unno case. With respect to the administration of our criminal law, we should not forget the dark, less attractive side while focusing on brighter, more noticeable aspects.
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[in Japanese], [in Japanese], [in Japanese], [in Japanese], [in Japane ...
1986 Volume 1986 Issue 38 Pages
48-86
Published: April 20, 1986
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Their Legal Structures and Functions
Hiroyuki Ikeshima
1986 Volume 1986 Issue 38 Pages
87-100,221
Published: April 20, 1986
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This essay aims at a more accurate understanding of the factual and functional analysis of modern companies in the 1980's, through a multi-faceted approach to the various laws with respect to their capital finances. The aim of this paper is an actual legal analysis-an analysis and clarification of modern laws-with respect to managing major corporations, including regulationg large corporations, and aiding small and medium corporations. The paradigm of the modern company is that the problems of the large company are like the problems of the small-to-medium company, while the small-to-medium company's problems share facets of the large company's problems.
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Toshio Fujiwara
1986 Volume 1986 Issue 38 Pages
101-106,220
Published: April 20, 1986
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A survey of small-scale companies indeed reveals that the majority of them are family owned and operated, and that the so-called gap between law and reality is especially striking. However, it would be incorrect to conclude that economic chaos and social inequities result from such abuse of the corporate institution by those small companies. Moreover, the Justice Ministry's proposal to simplify the procedure and structure of the Company Law is not supported in its entirety. This fact seems to suggest that, in a way, the fundamental scheme of the modernn corporate law is being accepted by the managers of small companies.
Along this line of thought, the amendments require much caution; we should not be taken in simply by appearances.
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Firm Transactions and the Regulation
Yukio Nishio
1986 Volume 1986 Issue 38 Pages
107-114,220
Published: April 20, 1986
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The increased concern with international intra-firm transactions and tranfer pricing reflect the continuous post-war growth of international firm. And the regulation of transfer pricing continues to be a vexing problem for goverment, economist, lawer and the multinational enterprises (MNEs) themselves. The basic issue of regulation is the allocation of an MNE's income among fisical jurisdictions and the control of restrictive business practices dealing with transfer pricing. Nevertheless, whether to regulate and how to regurate transfer prices shoud be discussed, especially in Japan which has no means regulating them. I set up three models: nonregulating model, arm's length model and independent model, so discuss the problems of these models.
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Kanezo Ichikawa
1986 Volume 1986 Issue 38 Pages
115-119,219
Published: April 20, 1986
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On the basis of the realities of the employee shareholding system in Japan as well as the ERISA (Employee Retirement Income Security Act), and its ten years' experience, this report considers the future and legal problems of the Japanese Employee Shareholding System.
For reference: National Conference on Stock Exchanges, "1983 Study on the Distribution of Shares", (1984); Kanezo Ichikawa, "Management and Ownership in Major Corporations-A Consideration of Reciprocal Participation Regulations, "Kagawa University, Vol. 3, No. 3 (1984); United States Senate, Special Committee on Aging, The Employee Retirement Income Security Act of 1974: The First Decade (1984).
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Hirohisa Kitano
1986 Volume 1986 Issue 38 Pages
120-125,219
Published: April 20, 1986
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For the better or for the worse, the corporation forms the center of modern law. In other words, it would not be a mistake to say that the modern corporate law determines the whole of modern law. Even major corporations are private enterprises in their legal forms. Large corporations, in reality, do not differ from the "governmental enterprises" which are run with public money. With regard to large corporations, there are such patterns and practices as "hidden subsidies", "favorable orders from the government", "political donations", etc. Accordingly, in a legel sociological sense, (that is, as "living law") "corporate sovereignty", rather than the "people's sovereignty" in the contritutional law sense, has become prevalent.
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with a Focus on "Living Law"
Zensuke Ishimura
1986 Volume 1986 Issue 38 Pages
126-132,218
Published: April 20, 1986
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Eugen Ehrlich's (1862-1922) main work, "The Fundamental Principles of the Sociology of Law, " translated by Walter L. Moll (1936), "Grundlegung der Soziologie des Rechts" (1913), which has been influential in the development of the sociology of law in Japan, has been considered unsystematic. This reporter cannot totally agree with such criticism.
While this report is a tentative essay, it will focus on the structure of the above work and especially upon the "law of organizations." At the same time, this reporter would also like to criticise the view hitherto generally held, namely that" the sociology of law is a study of the living law."
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a Reappraisal of Marx's Theory of Property
Kohei Aoki
1986 Volume 1986 Issue 38 Pages
133-139,218
Published: April 20, 1986
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DAS KAPITAL'S Transition of the Laws of Appropriation (ryoyu hosoku riron), Vol. 1, Chap. 22, Sec. 4 and the reconstructive theory of individual ownership, Chap. 24, Sec. 7, are traditionally offered as Marx's theory of ownership. However, Marx, like John Locke and Adam Smith, is not free from the fetishism of the natural law world view comprised of free, independent individuals based upon the notion of property deriving from personal labour.
This writer will thoroughly pursue the intent of Marx's theory of fetishism which criticizes modern legal concepts. Also, this writer will examine the mechanism by which the capitalistic commodity economy, composed of the conduct of individuals, can be distorted and accepted as a property law system which is fair toward everyone.
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Kahei Rokumoto
1986 Volume 1986 Issue 38 Pages
140-147
Published: April 20, 1986
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Shigeki Tanaka
1986 Volume 1986 Issue 38 Pages
148-153,217
Published: April 20, 1986
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According to the present writer, the term "rights" implies both in the West and the East, a justifying ground for individuals' behaviour and claims.
However, viewed genetically, it is a concept premised upon the conflict between the nation and society. Rights are not merely divisible between original, primary rights and remedial, secondary rights. Furthermore, concepts such as privilege, power, and immunity are frequently included as rights in a broader sense.
While theories applicable to these various types of rights are thus required, the "rights-benefits theory" and the "rights-claims theory" are nothing but tautological explanations. Although Hart's "rights-selection theory" is valid as a criticism of the "Utilitarian rights-benefits theory", it still does not elucidate the meaning of human rights or power.
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Taro Kitakamae
1986 Volume 1986 Issue 38 Pages
154-160,217
Published: April 20, 1986
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This article will undertake a case analysis of internal order in traditional Ainu culture by using as a fundamental framework the following two points:
(1) Society as a system constituted dy meaning; and
(2) External and internal aspects of that system may be simultaneously thematicized.
The following points become clear upon focusing the analysis on the symbols of externality, the "ikor" (treasures) and the "inau" (the offering-stick for deities). Those symbols possess ambiguous functions in that they both activate and disrupt a system; therefore, the systems which they control have essential meaning to society's internal order. Their free circulation is prohibited, and only when internal order has been disturbed will they operate to restore it. Therefore, they also serve as a principal means of conflict resolution.
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Masao Iiyama
1986 Volume 1986 Issue 38 Pages
161-168,216
Published: April 20, 1986
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Although the economic analysis of law developed in the U.S. after the 1970's, in Japan, the systematic understanding of the field's overall structure is still insufficient. Hardly any study has been done on the theoretical relationship between the economic analysis of law and the traditional areas of legal research, particularly, the sociology of law. Through a methodological investigation of the economic analysis of law, this study will scrutinize the significance of economic analysis for legal research. This study will be structured as follows:
(1) An economics approach toward law;
(2) Classification of the economic analyses of law;
(3) The economic analysis of law and the sociology of law.
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Nobuho Tomita
1986 Volume 1986 Issue 38 Pages
169-178,216
Published: April 20, 1986
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The Hayashi's Quantification Iheory III was applied to a sample of 561 university and junior college students in an effort to patternize the interrelationship of the following three items:
(1) Their attitudes toward the constitutional rights regarding criminal procedure; and
(2) Their attitudes toward freedom and equal rights; and
(3) Their feelings as to the strength of criminal regulations.
The following two types resulted: (1) pattern-oriented toward respect for human rights by criminal procedure--respect for freedom and equality--non-punishment; and (2) pattern-oriented toward disrespect for human rights by criminal procedure-disrect for freedom and equality-punishment.
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A Survey Analysis
Yasuhiro Wada
1986 Volume 1986 Issue 38 Pages
179-185,215
Published: April 20, 1986
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This article conveys a general idea of what the auther reported in the annual convention of Japan Sociology-of-Law Association, 1985, Tokyo.
The report is based on a series of survey conducted by the author in 1982 through 1984, which is composed of the mail survey and interview. While the former explores some interesting points such as how popular the experience of disputes is among citizens, what types of disputes they are, how pervasive the avoidance as a way of handling disputes is, etc., the latter seems to be more important in presenting us with such qualitative data as identified in the "transformational model" of disputes.
The report, focusing on the analysis of the interview data, overviews the way the individual cases (i.e., disputes) are classified into several categories which represent each transformational level and also the way those categories are interlated each other.
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Narumi Hasegawa
1986 Volume 1986 Issue 38 Pages
186-191,215
Published: April 20, 1986
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A major hot spring owner at Nozawa Spa is the foundational juridical person, Nozawa-Kai. The Nozawa-kumi, which was born of the village organization named Nozawa-kumi, represents a modern type of organization with a juridical person status, which was established upon the merger of the village and the town in order to preserve the spa under communal ownership. Pursuant to a hot spring water supply agreement, water is supplied to inns and lodges, and is provided free of charge to public baths.
The thirteen public baths are open free of charge even to non-residents, and are managed and operated by the baths' users or a local group called "bath-maths" or ku. The spa's waters are provided free of charge by the Nozawa-kai or by individuals.
In a large number of cases, the water from hot spring sources owned by indiviuals are for their own use. Under the old, customary hot spring rights, there were cases where owners of the land where the hot springs originate differed from the water-use rights-holders.
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[in Japanese]
1986 Volume 1986 Issue 38 Pages
192-197
Published: April 20, 1986
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[in Japanese]
1986 Volume 1986 Issue 38 Pages
197-203
Published: April 20, 1986
Released on J-STAGE: January 15, 2009
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[in Japanese]
1986 Volume 1986 Issue 38 Pages
203-208
Published: April 20, 1986
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1986 Volume 1986 Issue 38 Pages
209-214
Published: April 20, 1986
Released on J-STAGE: January 15, 2009
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