法社会学
Online ISSN : 2424-1423
Print ISSN : 0437-6161
ISSN-L : 0437-6161
2015 巻 , 81 号
持続可能な社会への転換期における法と法学
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「持続可能な社会への転換期における法と法学」
  • 楜澤 能生
    2015 年 2015 巻 81 号 p. 1-12
    発行日: 2015年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    The great transformation from industrial to sustainable society is one of the most important challenges today. “Sustainability” is a key concept to constitute the society of 21th century. This concept that should combine and adjust different fields, like economy, society and environment is however so ambiguous and comprehensive that it is often criticized as meaningless word. In the Symposium we will learn its precise contents defined by an economist, examine if/how we can use it as law category. We consider the new content of property right which can promote the sustainable development, not only in nation state, but also in Asian Region. We will try to get some hints of the concrete law policies for transformation from some examples of reconstructing activity in earthquake-stricken areas.
  • 五十嵐 敬喜
    2015 年 2015 巻 81 号 p. 13-26
    発行日: 2015年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    After the collapse of the economic bubble, Japan experienced dramatic changes in real property holding. The one is the rush of construction of super tall buildings in central Tokyo, and the other is the abandonment of land use in areas other than Tokyo. It might be said that the former comes from the global city competition and the later from the aging society with fewer children. However, I would like to emphasize the concept of absolute property right as a cause of both phenomena. To reform these unhealthy and absurd situations, the adjustments of property right such as common welfare or inherent obligation principles are not enough. We need construct a new property law theory: Contemporary Soyu principle. We could find the emergence of this new principle in above phenomena. This serves as a hope for the future of Japan.
  • 金子 由芳
    2015 年 2015 巻 81 号 p. 27-39
    発行日: 2015年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    This article purports to find hints for the institution building toward the sustainability from the recent efforts made by Asian countries in an attempt to get rid of lawful land deprivation by the “land law reform” agenda led by international donors. Similarly to the colonial land regime introduced in the 19th century, the present time “land law reform” promotes the Torrens-style land registration for ownership titling, which guarantees the cost-efficient investment climate, while resulting in numerous land disputes involving ordinary people against the governmental taking of their long-term land use and basis of communal livelihood. In response to growing civic criticisms, new attempts have recently been made to improve the moments for participation in the governmental planning and public projects, to increase procedural guarantee for objection and compensation to recognize the community as a collective entity exercising civil and public rights, and to materialize the access to judicial review These efforts may bring about changes particularly when more theoretical strength is obtained through the involvement of Japanese scholarly works in search for advanced frameworks for collective rights and procedures beyond the limit of individualism.
  • 諸富 徹
    2015 年 2015 巻 81 号 p. 40-54
    発行日: 2015年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    If we trace the history of the concept of sustainable development in economics, the emergence of the concept of strong sustainability, which supposes the impossibility to alternate natural capital by artificial capital, is first landmark. As second, Sen’s remark on the capability, which enables a person to derive more valuable functions from limited resources, is important. However, in order to implement public policy, which regulates overuse of capital and restores damaged capital, the accumulation of social capital is necessary condition. Thus, today, the government must provide the rule, which aims to strengthen the social capital. This paper focuses on the role of taxation as a policy option. Given that globalization and financialization of economy are most threatening the sustainability of our current society, it deserves attention to the adoption of Financial Transaction Tax by EU. From their experience, we could design the principle of new cross-border governance.
  • 広渡 清吾
    2015 年 2015 巻 81 号 p. 55-63
    発行日: 2015年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    This essay comments on the three lectures of Igarashi, Kaneko and Morotomi in the symposium. Through this commenting on the theory of modern cooperative property, the land laws in the Asian countries and the economic theory of the sustainability I try to find the important thinking standpoints for the sustainable development. I find two points. The first point is the cognition of the interdependence of the whole humankind and the generations. The second point is the thought of “care.” In my opinion the modern law system is constructed on the principle of the individual independence and therefore does not include the thought of the interdependence of the humankind and “care.” If the jurisprudence (or the science of law) will accept the sustainable development as own assignment, it must try to review and reconsider the modern law system from viewpoint the thought of the interdependence of the humankind and “care” and that way seek to introduce the new concepts of the law system for the sustainable society in the future.
企画関連ミニシンポジウム1 「過少利用時代における所有権論・再考――地域・都市の持続可能性」
  • 土地・建物の過少利用が所有権論に投げかける問い
    高村 学人
    2015 年 2015 巻 81 号 p. 64-75
    発行日: 2015年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    Recently vacant properties issue becomes serious in Japan: property owners could not find economic value in their properties and abandon the use and the management of them, giving negative externality to others. Preceding property law theories in Japan such as theory of abuse of right, modern land property theory and urban law theory have presupposed the overuse of property or the competing of uses. Our land use regulation system also presupposes the active use of land. Thus, our legal theory and system cannot respond well to the underuse of properties. Do we need a paradigm shift of our property law? This paper illustrates why our current legal system cannot solve the vacant properties issue and what theoretical challenges this issue is requiring, and proposes the frame work for comparative institutional analysis of property law systems in the era of low growth.
  • 北村 喜宣
    2015 年 2015 巻 81 号 p. 76-90
    発行日: 2015年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    In recent years, the number of vacant and abandoned properties which pose a threat to public safety has grown increasingly. More than 370 ordinances have been enacted by the local governments during the past four years. Even though these ordinances empower the municipalities to recommend and order the duty of property owners, their powers may have limitations. In order to address this situation, several members of the Diet are preparing to submit a draft law named “the Act on Special Measures Concerning Vacant Properties” to the Diet. However, neither ordinance nor draft law sufficiently stipulates solutions to vacant properties problems. It is necessary to examine matters recognized in the local area demonstratively, as well as to establish a legal system in a way that allocates function between law and ordinance adequately.
  • 緒方 賢一
    2015 年 2015 巻 81 号 p. 91-104
    発行日: 2015年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    Abandoned cultivated land area has been increasing rapidly. It has reached almost 400,000 hectares in 2010. The government has established Regional Government Supported Institutions for Farmland Consolidation in order to decrease abandoned cultivated land. Also, Agricultural Land Act has been revised in 2013. From then on, when Agricultural Committee patrol rural area and find a piece of abandoned cultivated land, they propose a plan to rent the land to a regional government supported institution so that a business farmer can use it. The government is promoting this new undertaking strongly, but no one can foresee the result. The writer has researched abandoned cultivated land and activities of Agricultural Committee which operate Agricultural Land Act and manage cultivated land in rural areas for several years. It seems that Agricultural Committee are hesitating to apply the articles for abandoned cultivated land to the owner. Because they are afraid of absoluteness of the ownership. Article 206 of Civil Code says that an owner has the rights to freely use, obtain profit from and dispose of the Thing owned, subject to the restriction prescribed by laws and regulations. They think the word, ‘freely’ to be superior to any other words. So they hesitate to apply the articles for abandoned cultivated land. In this paper, the writer suggests plans to promote recovery of abandoned cultivated lands, or ideas about revising the articles regarding ownership of land. For example, people of a rural community may improve the situation by their activities if they can get enough subsidies to revive the utility of cultivated land from the government. Abandoned cultivated land area may be reduced if the articles of ownership of land are revised in order to change the people’s consciousness of it.
  • 小柳 春一郎
    2015 年 2015 巻 81 号 p. 105-116
    発行日: 2015年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    In France, the fight against vacant houses (lutte contre le logement vacant) is a more and more important political issue, even though the vacant house rate is decreasing, from 7.0 percent in 2000 to 6.0 percent in 2010. The rate of house for secondary or seasonal use is slightly declining from 10.0 percent in 2000 to 9.8 percent in 2010. This is because the total population in France was rapidly increasing 6.7 percent during the 10 years. It recorded at 64.6 million people in 2010 from 60.5 million in 2010. The pressure of the growing population and the shortage of decent houses especially in large cities are the main reasons for the measures against vacant houses. The tax against vacant houses and the requisition of vacant houses are the two main axes of the legislative measures for the fight against vacant houses. The former is introduced by the Act against exclusion in 1998 and is related to the owners of the houses vacant for at least two years in the eight areas with more than 200,000 inhabitants. The 2013 reform expanded the implementation areas (from 8 to 28 areas) and raised the tax rate. The latter has a long history and was often implemented at the post-Second-World-War period. However, there has been a very rare case of application these days, due to the difficulties in detecting the vacancy. The underuse of house is theoretically permissible in the context of French Law. However, the concept of housing right plays an important role in restricting the owners’ property right.
企画関連ミニシンポジウム2 「持続可能社会における環境・社会・経済の統合」
  • 津田 直則
    2015 年 2015 巻 81 号 p. 117-128
    発行日: 2015年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    We are encountering to three kinds of big crisis. The first is a crisis of economic system, the second is a crisis of humanity and the third is the crisis of natural environment of the earth. The basic cause of the crisis is the modern capitalism which has changed its nature from the early days of capitalism. Precisely speaking, various paradigm of the modern capitalism is the basic cause of the three crises. Those paradigm are for example, liberalism, competitive system, for-profit enterprise system, market system and so on. If we want to escape from these crisis, we must change those paradigm of the modern capitalism to another ones of another new society. The procedure of the analysis is as follows. The first step is to analyze the necessary conditions of the new society, the second step is to analyze the direction of the change of the modern capitalism to fulfill the necessary conditions of the new society, the third step is to create the system of basic values of the new society, and the last step is to devise the principles, institutions, and systems of the new society. We will show you in the article that the new society is called solidarity society. The fundamental new paradigm value is not liberalism but love and justice. The dominant system is not competition system but solidarity system, not for-profit enterprise system but non-profit enterprise system and so on. The solidarity society is not a dream or fantasy. The prototype of the solidarity society is the social economy in Europe. The new solidarity society will be the challenge to a new civilization.
  • 震災復興支援を手がかりに
    菊池 馨実
    2015 年 2015 巻 81 号 p. 129-139
    発行日: 2015年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    Sustainability of social security system is typically understood from the viewpoint of budget. But to maintain the sense of solidarity, one of the ideas of Japanese Social Security Law, the reconstruction of community is also the important theme. We can see the illustration in the restoration relief activities in Namie Town, Fukushima Prefecture.
  • 環境サステナビリティの観点から
    大久保 規子
    2015 年 2015 巻 81 号 p. 140-151
    発行日: 2015年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    The principle of sustainable development requires a policy-making process integrating environmental, economic and social aspects. In Japan, more and more basic laws as well as other specific legislation adopt the conception of “sustainable development” or “sustainability.” However, some misconceptions and inconsistencies threaten the effective implementation of such principles. The terminologies “sustainable development” and “sustainability” differ from each other. Additionally, the integrative approach seems especially weak in the field of economic and social security law. Therefore, it is important to introduce an integrated conception of sustainable development in such fields and the strategic environmental impact assessment (SEA) in order to reflect the environmental aspects appropriately. At the same time, the concrete and essential elements of sustainability should be legally and consistently materialized in each field. Finally, it is emphasized that this principles include also the guarantee of the right to participate in the decision making process as well as the local-based policy approach.
  • From the Viewpoint of the Governance of Reconstruction
    佐藤 岩夫
    2015 年 2015 巻 81 号 p. 152-165
    発行日: 2015年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    The Great East Japan Earthquake in March 2011 caused serious damage in the large area of east Japan. Along with the speedy earthquake disaster reconstruction, the most important problem of the earthquake disaster reconstruction is to promote sustainable development of the stricken areas in a medium- and long-term. This paper introduces some findings from the survey of earthquake victims carried out by our research group in Kamaishi City every year after the earthquake disaster and examines the process of reconstruction policymaking and its implementation from the viewpoint of the governance of reconstruction. It points out that both too large reconstruction plans and too small ones may endanger the sustainable development of some stricken areas respectively.
論説
  • コレスポンデンス分析を用いて
    西本 実苗
    2015 年 2015 巻 81 号 p. 166-188
    発行日: 2015年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    Since the collapse of the “bubble economy” in Japan at the beginning of the 1990s, a series of corporate scandals has occurred one after another. Japanese companies are required to establish a governance system, an internal control system, and an audit system (compliance system). In addition, changes in the business circumstances surrounding Japanese companies in recent years, such as the globalization of economic activity, have put pressure on Japanese companies to transact economic activities with a high degree of transparency based on compliance with existing laws, rules, and regulations. This study uses a corporate survey to explore aspects of communication for corporate compliance. In particular, it examines how the compliance department works in the area of compliance-related communication. The results of data analysis indicate two significant findings. First, there is a tendency to communicate in a top-down manner in improving the compliance system and preventing compliance problems, and there is a possibility that the bottom-up information flow may be deficient. Second, the compliance department is responsible for maintaining corporate integrity, and serves to complement the top-down approach to crisis response. More precisely, it is assumed that the compliance department performs the function of pointing out differences between the demands of society and the values and vision of the company, and of bridging this gap.
  • 構造方程式モデリングによる分析
    森 大輔
    2015 年 2015 巻 81 号 p. 189-206
    発行日: 2015年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    In Japan, it has been said that time and cost of litigation prevents people from filing suit. However, when we analyze the survey data of Civil Litigation Behavior Research Project, we find that there are no statistically significant correlations between general public’s attitude toward time and cost of litigation and decision to file suit. In order to explain it, we propose the following hypothesis and test it by means of Structural Equation Modeling (SEM); Attitude toward time and cost of litigation is affected by two variables, which have opposite effects on decision to file suit. One of them is negative images of time and cost of litigation which negatively affects decision to file suit, and the other is the factor of right and interest which positively affects it. Moreover, the latter strengthens the effect of the former. We also compare general public’s and litigants’ attitude toward time and cost of litigation by means of Multi-Group SEM. The result has several implications. One of them is the implication for the long-standing debate why litigation rate in Japan is so low. Several factors such as attitude toward rights, and time and cost of litigation have been proposed to explain the low litigation rate. Now most commentators argue that these factors are not mutually exclusive but complementary. The next question is how they are related to each other. SEM analysis of this article can be helpful to think about this question.
世界の学界動向
  • 飯 考行, 福井 康太
    2015 年 2015 巻 81 号 p. 207-220
    発行日: 2015年
    公開日: 2021/05/05
    ジャーナル オープンアクセス
    This paper reports the preparatory process and outline of the ISA 18th World Congress of Sociology, which was held in Yokohama in 2014, with an emphasis on the RCSL (RC12) sessions. The ISA Yokohama congress took place for a week from July 13th to 19th and gathered more than six thousand participants. RC12 sessions were carried out as a part of the ISA Yokohama congress for three days and a half from July 14th to the morning of 17th. There were thirteen RC12 sessions with 56 papers, in which 17 were presented by Japanese and members of the Japanese Association of Sociology of Law. Though the sessions were held in a busy season for Japanese universities, the ISA Yokohama congress was fruitful in exchanging ideas from various angles and in finding out new understandings of a traditional discussion. It was a great chance for the participants to hold extensive discussions not limited to socio- legal study results with narrow views. It is expected to have broader socio-legal international exchange circles and to increase the presence of the RCSL in the ISA, as well as for more and more members of the Japanese Association of Sociology of Law to participate in the ISA and RCSL.
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