法社会学
Online ISSN : 2424-1423
Print ISSN : 0437-6161
ISSN-L : 0437-6161
2014 巻 , 80 号
新しい所有権法の理論
選択された号の論文の20件中1~20を表示しています
全体シンポジウム「新しい『所有権法の理論』」
  • 尾﨑 一郎
    2014 年 2014 巻 80 号 p. 1-9
    発行日: 2014年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
  • 楜澤 能生
    2014 年 2014 巻 80 号 p. 10-34
    発行日: 2014年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
  • 会社法・資本市場法からの問題提起
    上村 達男
    2014 年 2014 巻 80 号 p. 35-48
    発行日: 2014年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
    Kawashima’s theory on property right discusses “ownership as capital” in the final chapter. It makes an analysis of three categories: private ownership, contract, and person, as the composition of market system, in which the element of “individual” as a living personality is cut off. Property right on capital is the world which is blind to the whole historical development of ownership. In its conclusion, the theory warned about the possible risk that legal interpretation of abstract property right on capital could degenerate into a reactionary dogma. Now, this risk becomes realized in the world of economics which carries out a through cost analysis such as transaction cost or agency cost based on homo-economics hypothesis and also in the world of jurisprudence which blindly accept it. By exposing the risk of having a vulgar view on company system, which is the union of market and company, and a risk factor of losing sight of the image of a living person, this speech proposes the formulation of fundamental theories to escape such a risk.
  • 所有権発生の社会構造
    加藤 雅信
    2014 年 2014 巻 80 号 p. 49-85
    発行日: 2014年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
    What is property? How did a notion of ownership appear in the world? The traditional legal study does not give us any answers to the above questions. A notion of ownership had appeared before a written history began. Thus, a legal historical study does not give us any answers to the above questions. However, anthropological studies afford an excellent insight in to these questions. Imagine an ancient society where food was not sufficient. In order to promote food production, farming became important. People would become eager only when a fruit of their labor in farming could be certainly acquired. In such a community needed a notion of land ownership. The notion of land ownership protects an investor in farming at the first stage, and it contributes to an enlargement of food production in a community as a whole in the second stage. Thus, a notion of land ownership appeared in a farming society. This might occur in an ancient society. However, a similar phenomenon occurred in a modern society. In an industrial society, an invention is crucial in order to promote an industrial production. An invention or a new technology is a result of investment for research and development. If imitation of an invention or a new technology is possible, no one would make an investment for research and development. Thus a notion of an intellectual property became necessary in a modern industrial society. From ancient to modern days, a history repeats on the same logic. These are the social structure of a birth of ownership of capital goods. A social structure of a birth of ownership of consumption goods is different. Among consumption goods, food is most important. Social order concerning food had begun before a history of human being started. In primate societies, respect for possession of food by an individual is respected by the others. In case an infant possesses food, even a leader monkey cannot take it by force. In addition, distribution of food is not seldom in societies of chimpanzees and pygmy chimpanzees. This paper focuses and analyses these phenomena.
  • 2013年度法社会学会全体シンポジウム 「新しい『所有権法の理論』」に寄せて
    水林 彪
    2014 年 2014 巻 80 号 p. 86-115
    発行日: 2014年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
    In 1947, Takeyoshi Kawashima published a groundbreaking book titled SHOYUKEN-HO NO RIRON (THEORY OF PROPERTY LAW). In the spring of 2013, a symposium was held to discuss how “A NEW THEORY OF PROPERTY LAW” might look if we update and revise Kawashima’s work and try to come up with a new theory. Because the draft of this paper was written as a comment to the symposium, Part I of this paper addresses the significance and problems of Kawashima’s classic work. In Part II, the author’s ideas for “A NEW THEORY OF PROPERTY LAW” are proposed. The significance of Kawashima’s work can be summarized in three points: one, it is a law-and-society piece, not a doctrinally analytical piece, of property law; two, it has a historical perspective; and three, it is dialectical. On the other hand, two problems can be observed: one, Kawashima equated modern law to capitalist law or law in the era of capitalism; and two, Kawashima paid insufficient attention to labor and commercial law. Historical analysis of these two central components of capitalist law and the economic basis out of which these laws emerged, yields a richer historical theory than Kawashima’s. By broadening our perspective from capitalist property to modern property, the author tries to overcome the problems of Kawashima’s work and presents his theory of both modern and contemporary property law.
  • 松村 良之
    2014 年 2014 巻 80 号 p. 116-128
    発行日: 2014年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
    Matsumura’s comment on the Kato’s is presentation was given from the viewpoint of developmental psychology. In the scope of psychology, the issue of ownership or possession is not about the relation between a person and a thing but that between a person and a person, and property right is the social system developed from it. Thus, the psychological approach to ownership is terminus a quo for the study of the origin of property right as a social system. Matsumura first introduced L. Furby’s concern and her study. She is the pioneer of this field. Second, the study on children’s possessive behaviors was detailed. If the interest of this symposium is on the modern property right, the distinction between ownership and mere possession is critically important, which would emphasize the cognitive aspect of the child development. Third, based on this view, Matsumura reframed the study of L. Furby and introduced the study of child development on understanding of purchase and sale that provides fundamentals of property right. Fourth, returning to the legal concern, Matsumura’s view on children’s understanding of ownership discerned from mere possession was stated based on children’s understanding of money.
企画関連ミニシンポジウム「身体・所有・自由」
  • 吉田 克己
    2014 年 2014 巻 80 号 p. 129-149
    発行日: 2014年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
    We can find in contemporary society increase of the proprietary nature of human body and aspiration for right of free disposal regarding human body. The importance of the problem how the law should catch the human body is increasing against these backgrounds. This report considers this problem, using this paper as material of comparison of France. The legal problem situation involving the human body is checked and the «human body = subject» theory and «human body = thing» theory which are two typical positions about the legal composition of the human body are examined on it. I would like to show a «human body as medium of subject» theory based on such work. The basic problem consciousness makes it possible to control commercialization and marketing of the human body appropriately, and is in the place which builds the human body theory which is effectively used against the infringement to the human body and can counterattack it.
  • 臓器・精子・卵子ビジネスから
    櫛橋 明香
    2014 年 2014 巻 80 号 p. 150-169
    発行日: 2014年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
  • 出生前診断をめぐって
    小島 妙子
    2014 年 2014 巻 80 号 p. 170-193
    発行日: 2014年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
    “The right to self-determination” about the abortion has been discussed as a part of the (disposal rights) ownership of the female body, but with the development of life science and improved technology of prenatal diagnosis, the opinion that women have no freedoms to choose the “quality” of children and do not allow the selective abortion have become to be supported. “The guideline for new prenatal diagnosis using maternal blood” which was published in March 2013, has the response inhibition about the “prenatal diagnosis,” saying that “a doctor need not inform actively to a pregnant woman about the new prenatal diagnosis,” and it has limited the pregnant women subject to inspection it, carrying out only in the accredited institution. Can the woman decide whether or not to give birth to a child, on the basis of prenatal diagnosis, and making the abortion on the grounds of failure of the fetus? This paper would reveal that the decision on abortion is related to the basis of self-definition, being guaranteed under the legal structure of “the freedom of the body” by Article 13 of the Constitution, and discussing the problems of the guideline for prenatal diagnosis and the possibility of the selective abortion.
論説
  • 調停人の理念と葛藤及び成長に関する考察
    彼谷 直子, 岡田 昌毅
    2014 年 2014 巻 80 号 p. 194-225
    発行日: 2014年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
    The main purpose of this study is to describe various events and a mediator’s mental side occurring in the mediation practice from the viewpoint of applicable policies and various routines conducted by mediators. The second purpose is to explore growth factors of mediators as well as challenges mediators face in their practices. Data from transcripts of semi-structured interviews with 15 mediators were analyzed according to the modified grounded theory approach (M-GTA). Following analysis, 7 category groups, 23 categories, and 58 concepts were created based on the data obtained from the interviews. Subsequently, seven important principles for mediators such as “parties reflect and resolve for themselves” “role of mediator is to maintain the communication field”, and two types of managing the mediation scene such as “considering together with parties” were identified. Through these involvements, mediators feel various emotions and reflections, by those they deepen their growing review implementation experiences. And we discovered that mediators face three important challenges which they try to overcome despite being perplexed. Mediators believe in the ability of participating parties to resolve their own problems. By this belief, mediators think that their most important work is not to resolve the problem for parties, but is to support parties with various skills and strategies trained or learned by experience, as they work with one another to make problem-solving decisions themselves step by step.
  • 新旧司法試験合格者である弁護士の能力アイデンティティの比較
    小山 治
    2014 年 2014 巻 80 号 p. 226-242
    発行日: 2014年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
    The purpose of this paper is to examine how law school education has effects on self-assessment of competency (“competency identity”). The data was collected by questionnaire survey, which was sent to both of lawyer categories: lawyers who passed the new bar examination and those who passed the old bar examination. This paper clarifies the differences of effects of the types of the examinations on the competency identity of lawyers. Main findings are threefold: First, the estimated values of four competency identities (“legal basic competency identity,” “legal personal competency identity,” “management competency identity” and “cultivated competency identity”―conceptualized by factor analysis) of lawyers who passed the new bar examination were not statistically higher than those of lawyers who passed the old one. Second, the outcomes of the judicial research and training had positive effects on all of the four competency identities. Third, various demographic variables had significant effects on the four competency identities. These findings lead two important suggestions. First, although law school education is often criticized for leading poorer quality of lawyers, the analyses empirically demonstrate that the criticism is not always appropriate. Second, even after the establishment of the law school system, the judicial research and training has positive functions to guarantee the quality of lawyers from a viewpoint of competency identity.
  • 秋葉 丈志
    2014 年 2014 巻 80 号 p. 243-276
    発行日: 2014年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
    This article is a case study on judicial policymaking and cause lawyering focusing on the Japanese Nationality Case of 2008. The Japanese Nationality Case of 2008 was a rare decision in which the Japanese Supreme Court ruled that a provision of the Japanese Nationality Act denying certain Japanese-Filipino children (born of Japanese fathers and Filipino mothers) Japanese nationality was a violation of the Equal Protection Clause of the Japanese Constitution. The case was brought by JFC Network, an organization that has long supported the rights of Japanese-Filipino children. The fact that an important national issue - eligibility for Japanese nationality was decided by the Court as a result of litigation by a group long involved in the issue provides valuable material to consider the merits of judicial policymaking and cause lawyering in the Japanese context. Several issues arise, including the effectiveness of litigation in bringing about desired change; the ability of courts to decide on policy-related questions; the legitimacy of judicial intervention in a democracy; and the relationship between lawyers and plaintiffs. This article attempts to add to the discussion of these issues through a detailed case study of the Japanese Nationality Case. It is based on interviews with the lawyers who litigated the case, and with detailed examination of the activities of the JFC Network. In particular, it looks at the wide-ranging activities of the JFC Network and its involvement in litigation, as well as its efforts after the Supreme Court decision to secure desirable changes in the law from the executive and legislative branches, and its support for Japanese Filipino children and their mothers in the implementation stages of the decision.
  • 「公共的処理」の可能性について
    土屋 明広
    2014 年 2014 巻 80 号 p. 277-303
    発行日: 2014年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
    Since parent’s demands difficult to meet in schools became an object of public concerns, many local educational administrations -- boards of education -- are trying to form special teams and to make manuals to cope with parent’s demands. On the other hand, there are some studies to value parent’s demands. Those papers say that parent’s demands involve possibilities to transform schools (public education) into the sphere that many voices can be respected and interact each other. That is the public education as the public sphere. So, this paper focuses on the frames of the resolution systems to examine the possibilities of the publicness on the resolution process. For this purpose, this study takes up two cases. In consequence, this paper comes to conclusion, (1) that those systems have not only the side of the publicness but also the side of the non-publicness. The former means the systems recognize parent’s demands as positive and use multiple perspectives to cope with those. The latter means the systems show no concern about the opinion of parents, so, (2) that we need to discuss the systems that enable the horizontal communication between the Parties.
書評
feedback
Top