著者

土屋 孝次

出版者

日本法政学会

雑誌

日本法政学会法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.35, no.1, pp.37-54, 1998-11-15

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In section 1, constitutional issues of the House supermajority rule are examined. On the opening day of the 104th Congress, the Republican-controlled House of Representatives adopted Rule XXI that requires a three-fifths vote to pass an increase in income tax. In approving this rule, the House relied on its constitutionally delegated power to determine the rules of its proceedings. In section 2, procedual obstacles to a rule challenge are described. Before a decision on the constitutionality of the rule can be reached, two hurdles must be overcome; the doctrine of legislative standing and the doctrine of remedial discretion. This article finds, in this supermajority rule case, that Representatives satisfy standing requirements and that the doctrine of remedial discretion does not act as a bar to judicial review. In section 3, constitutionality of the House supermajority rule is discussed. The principle of majority-rule is so fundamental that the Framers found it unnecessary to explicitly proclaim it in the Constitution. And several provisions of the Constitution support the idea that the Framers intended the majority-rule to govern in all situations besides those specifically enumerated. This article concludes that the majority-rule is a Constitutional norm with which the House cannot interfere.

著者

水戸 克典

出版者

日本法政学会

雑誌

日本法政学会法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.32, pp.89-104, 1996-05-15

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1.Introduction 2.Approaches to legislative studies and the Diet 3.The role of the Liberal Democratic Party as the Opposition 4.The Unchanging functions of the Diet in the changing of political power 5.Conclusion This paper focuses mainly on the functions of the Diet in the change of government. The diet was considered to be 'a rubber stamp', particularly while the predominant party system was retained. That is because the opposition parties didn't play a positive part in the transforming of their intentions into policies and laws. They devoted their energies to only controlling 'disposable' time, and this made the deliberations insignificant. It was often pointed out that the strategy they depended upon arose from their own problems such as the less ability to make policies, the fractionalization and their seats. On the other hand, the Liberal Democratic Party in power criticized their way to waste time for deliberating and advocated the reinstatement of the Diet. The LDP, which went out of power in 1993, however, followed the traditional strategy as the Opposition with all its ability and the ideal. In other words, the functions of the Diet was not changed in the changeing of political power. The factors which made the deliberations in the Diet so negative were not only the problems of the opposition parties. It is necessary to reform the legislative system as a whole as well as parties including the Opposition with a view to activating the Diet.

著者

山口 廸彦

出版者

日本法政学会

雑誌

日本法政学会法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.29, pp.7-18, 1993-05-15

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Even nowadays when forty-eight years already passed after the article 24 of the Japanese Constitution provided the essential equality of the two genders in accordance with the equality under the law in the article 14 of the Japanese Constitution in the democratic reconstruction of this country, we can't succeed to remove the social discrimination due to the difference of the two genders. In accordance with these legal situations, the social movements to aim the emancipation of the women are very popular even in present developed capitalist countries. Their metamorphoses were done from the women's movement before 60's years through women's liberation at 70's years to the redical feminism after 80's years. Since the Stalinist regeme of the socialist countries collapsed and ruined itself although the only two exceptions of North Korea and Red China remained, the above-mentioned social movements to aim the human emancipations are thought not to escape to break up and to diverse. In these political situations, I think to analyse the problems of law and gender as follow. 1. Significance of this symposium 2. Purposes of this report in the symposium 3. Theoretical history of law and gender (1)Law and gender in the modern legal theory (2)Law and gender in the ancient legal theory (3)Law and gender in the jurisprudence in Japan (4)Law and gender in the sociology and sociologist thoughts (5)Law and gender in the modern feminisms

著者

久禮 義一

出版者

日本法政学会

雑誌

日本法政学会法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.28, pp.76-86, 1992-05-20

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This paper is on extract from my presentation"The Research on the Code of Ethics upon Politicians"given at Japan Association of Legal and Political Science in November of 1991. 1. Introduction 2. The Analysis on the codes of ethics upon politicians 3. The characteristic codes of ethics upon politicians 4. Case study-the code of ethics upon politicians in Sakai City- 5. Conclusion

著者

平松 毅

出版者

日本法政学会

雑誌

日本法政学会法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.30, pp.50-57, 1994-05-15

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1.Introduction 2.The content of political ethics in local government. 3.Governor, mayor and local assemblyman under obligation to avoid conflict of interest 4.Responsibility and Answerability of governor, mayor and local assemblyman 5.Ordinance to make bovernor, mayor and local assemblyman's assets public and possibility of invasion of his/her privacy 6.In conclusion

著者

辻 雄一郎

出版者

日本法政学会

雑誌

法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.46, no.1, pp.108-137, 2009-11-15

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In the United States, the Brandenburg test has been applied to the incitement of the illegal action in the physical world. In this paper, the author asks whether this Brandenburg test is applicable in the internet. Cyberspace has several special factors which do not exist in the physical world. Everyone can be the speaker at a cheap price. The message is sent all over the world instantly. This convenient tool has dark sides such as email bombs, and intimidation homepages. In the internet age, we need to ask the question whether the Brandenburg test is modified or abolished totally in this information society because of these special features of the internet. There are various tools to send messages via internet such as e-mail, homepage, blog, newsletter, mailing list, etc. In this paper, the author focuses just on the expression opened to the public. The author believes that before seeing the internet problem, it is necessary for us to see the origin and applicability of the Brandenburg test in the physical world. The Brandenburg test is not a given. Its origin is clear and the present danger test shaped in common law. In the conclusion, the author suggests that the Brandenburg test has some future since it has been used to protect the opinion of the minority in the real world. However, this test was used mostly in the peaceful period. We need to be vigilant to see this test for internet society.

著者

大西 斎

出版者

日本法政学会

雑誌

法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.46, no.2, pp.17-31, 2010-05-15

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The "Act on Procedures for Amendment of the Constitution", which clarifies the procedure for amendment of the Constitution, was proclaimed on 14 May 2007, and will be put into force on 18 May 2010, after three years of deferment. The hitherto absence of any law on the procedure for amendments to the Constitution stipulated in the Article 96 of the Constitution, is due to omission by the legislature, an indication that the principle of popular sovereignty had been slighted. The implementation of the' Act on Procedures for Amendment of the Constitution' is, therefore of great significance. On the other hand, there remain many challenges. In this report, we consider, from the legal point of view one of the most important issues among the challenges: 'the referendum movement by civil servants and educators'. Analysis is made, with attention paid to trends in judicial precedents, based on the 'freedom of expression' as defined in Article 21 of the Constitution.

著者

小野 義典

出版者

日本法政学会

雑誌

法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.46, no.1, pp.13-24, 2009-11-15

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Der abgehaltene europaische Rat macht vom Ende von diesem Jahr am Ende von letzt Jahr ein Projekt von der Lissabon Vertrag Wirkung. Davon wurde es dieses Jura der EU-Recht Reihenfolge unter diesem Vertrag sehr wahrscheinlich, kam vor. Aber revidiert dieser Vertrag in EU einen bestehenden grundlegenden Vertrag. Deshalb ist es keine Sache, die es ersetzt. Deshalb ist es unter Lissabon Vertrag schwierig fur Verbindungen mit der Verfassungsrecht in EU-Mitglieder Staaten und der EU-Recht, die es mit einem Wort gerufen werden sollten, wie ist es. Deshalb will ich unter dem Lissabon Vertrag System einige Probleme der EU-Recht aufklaren. Au sserdem uber dem Trend der globalen Gemeinde und einem Trend von EU will ich etwas Art von Vorschlagen vom Standpunkt der Gesetzesaufrechterhaltung einer Gerichtsbarkeitsgrenze bekommen, schaffte fur besonders gewohnlichen Gewinn. Inhalt 1. Anfangs 2. Die Entwicklung des internationalen Verbindungen-Gesetzes 3. Die Zusammenfassung des Lissabon Vertrages 4. Gesetzlicher Charakter der EU-Recht and das Lissabon Vertrag 5. EU-Gerichtsbarkeit und Verfassungslandgerichtsbarkeit 6. schlusswort

著者

長島 美紀

出版者

日本法政学会

雑誌

法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.44, no.1, pp.66-79, 2007

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The Gender-based persecution is to inflict a mental and physical distress to someone because of a gender-based violence and harm to his/her life. It includes sexual violence, domestic violence, female genital mutilation, forced family-planning, discrimination against homosexuals, etc. Since mid-1990s, UN and western countries like Canada have taken up gender-based persecution as one reason to become a refugee. UNHCR (United Nations High Commissioner for Refugees) appealed to the member nations to considerably review refugee claimants fearing the gender-based persecution through the interpretation of "membership of a particular social group" which is one of the refugee recognition reasons. In response to this, the "Guideline on Women Refugee Claimants Fearing Gender-Related Persecution" wes issued by the Canadian Immigration and Refugee Board (IRB) in 1993. And other 5 countries (United States, Australia, England, South Africa, and Sweden) issued their guidelines related with the gender-based persecution. In Japan, reflecting with severe refugee recognition system, each gender-related case was rejected. Judges regarded "persecution" as private issue and no-applicable to refugee protection. Comparing with Japan, Canada has actively recognized claimants fearing the gender-related persecution. Canada has implemented a gender-sensitive refugee protection through a flexible interpretation of the term, "membership of a particular social group". Canada seems to collect an adequate information to judge the gender-related persecutions, and has a strong human-rights awareness. Japan, comparing with other industrialized countries, has a poor under-standing of the gender-sensitive protection. However, Japan needs to consider the possibility of application of this concept for achievement of non-discrimination refugee recognition system in Japan.

著者

池田 十吾

出版者

日本法政学会

雑誌

日本法政学会法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.25, pp.150-156, 1989-05-20

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As the year 1941 wore on, it become obvious that war was inevitable. The decision on the part of the militarists, who were now definitely in the sadle, was cool and calculated. But, the Japanese miscalculated. In this delusion the Japanese showed themselves to be so blinded by their own nationalistic and militaristic propagand. The Japanese started the war with a successful attack on Peal Harbor at dawn on Sunday, December 8, 1941. The Japanese attitude was no more surprising than the resolution and skill with which the Americans started about the task of turning the page for the Japanese. All too often in recent years the United States has not been prepared for the responsibilities which world leadership has forced upon her, but she was ready for the task in Japan. For years the State Department had been preparing for the problems of post-war Japan, and in the months preceding the surrender an over-all American policy had been agreed upon through the State-War-Navy Coordinating Committee. Drawn up by experts, especially Dr. Hugh Borton, unhampered by external political pressures, this policy showed the mark of true statemanship. It was based on the realization that a policy of revenge would only breed harted and unrest. The most important reform of occupational policy was theory concerned the position of the emperor. Many Americans had advocated the trial of the reigning emperor as the major war criminal and the abolition of the monarchy by force. However, Dr. Borton would have thought neither wise nor just. The Potsdom proclamation had promised that the future government of Japan would be "established in accordance with the freely expressed will of the Japanese people", the vast majority of the Japanese continued to venerate the emperor. Moreover, they were aware that the he personally should not be held responsible for the war.

著者

池田 実

出版者

日本法政学会

雑誌

日本法政学会法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.29, pp.64-81, 1993-05-15

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Introduction 1. Legislative process 2. Constitutional reform 3. Senate as the chamber of territorial representation Conclusion The 1978 Constitution of Spain calls the Senate "the chamber of territorial representation", but actually it is only partly the case. This paper refers to the functions and powers of the Senate in relation to the legislative process, constitutional reform, and the autonomous communities in order to make out the real character of the Senate and raison d'etre of contemporary bicameral system.

著者

文 聖漢

出版者

日本法政学会

雑誌

日本法政学会法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.35, no.1, pp.10-21, 1998-11

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1.Introduction 2.Debate on the Japan's national security before the Korean War and the change of the international security environment 3.Debate on the Japan's national security after the outbreak of the Korean War and the change of response by Yoshida cabinet 4.The change of public opinion over the national security 5.Conclusion The main purpose of this paper is to make clear the following three points by which the influence of the Korean War towards the variation of Japan's debate over national security. Firstly, until before the outbreak of the Korean War, there was flourishing debate on the Japanese national security under the assumption that the sovereignty were achieved by reaching the Peace Treaty. The focal point of the debate was the feasibility of neutral policy as Japan'sp ossible security policy options, event hought Japan was then under the occupation of the United States. Secondly, even thought Japanese political orientation after the defeat of war was explicitly inclined towards the neutral policy for various reasons, the public opinion supported in general the Yoshida's security policy, the so called Yoshida doctrine, which focused on the indispensability of limited dependence on the united states. It also included implicitly the pursuit of economic reconstruction, gradual rearmament corresponding to the economic capacity, and the offering of military bases to the UnitedS tates. In addition, some nationalistsw ho insisted on the drastic rearmament got sympathetic assistance to some extent from the general public. Thirdly, once the Korean War broke out, the direction of debate over the national security issue, being held independently in domestic, turned the other way. The arguments of neutrality and over-all peace treaty lost their theoretical bases and so did in reality. Yoshida's cabinet got the political legitimacy of its dependence policy on the United States. This also helped Yoshida pursue his national security policy with confidence. Furthermore, the Korean War made it possible for the Japanese latent consciousness on the national security to be awakened and become more realistic.In conclusion, the U.S.-Japanese alliance was not the by-product stemmed from the change of international situation which originated from the Korean War, but the result of independent debate which was domestically already full fledged on the stage of discussion before the outbreak of the Korean War. Summing up, the old 'theory of Kamikaze of the Korean War', which treats the Korean War as the decisive factor forming Japanese-U.S. security system and rearmament of Japan, has gone too far in emphasizing the outside factors in the formation of Japan's foreign policy. This theory is dependent only on the textual interpretation.

著者

神谷 義郎

出版者

日本法政学会

雑誌

日本法政学会法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.23, pp.3-4, 1987-05-20

著者

長谷 卓巳

出版者

日本法政学会

雑誌

日本法政学会法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.24, pp.99-109, 1988-05-20

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In 1962 the General Assembly requested the Economic and Social Council to prepare a draft declaration and convention on the elimination of all forms of racial discrimination. On 20 November 1963 the General Assembly, upon the recommendation of the Third Committee, proclaimed the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and on 21 December 1965 the General Assembly at its twentieth session adopted by 106 votes to 0, with 1 abstention, Mexico and opened for signature and ratification the International Convention on the Elimination of All Forms of Racial Discrimination. The principles set out in the Declaration are reaffirmed in the Convention, and the Convention was prepared in order to give effect to the principles proclaimed in the Declaration. The Convention entered into force on 4 January 1969, thirty days after the twenty-seventh instrument of ratification or accession was deposited(Art. 19). A direct cause that induced the United Nations to take up the serious question of racial discrimination was the revival of anti-Semitic and neo-nazi movements in different parts of the world in 1959/1960. This Convention consists of 25 operative articles besides the preamble, and they are divided into 3 parts. Part I of the Convention(Arts. 1 to 7)refers to Substantive Article. Article I of the Convention begins with a definition of racial discrimination as "distinction, exclusion, restriction of preference based on race, colour, descent, or national or ethnic orgin…, "and Article 2 sets forth the fundamental obligations of States Parties to undertake in the matter of racial discrimination. Some of these fundamental obligations are elaborated in greater detail in Article 3 to 7. Part II of the Convention(Arts. 8 to 16)deals with measures of implementation. Remarkable among these clauses are provisions on the establishment of the Committee on the Elimination of Racial Discrimination("the Committee"). Measures for the implementation of the Convention include the establishment of the Committee, consisting of "18 experts of high moral standing and acknowledged impartiality elected by States Parties from amongst their nationals who shall serve in their personal capacity"(Art. 8. 1). Measures of implementation are an essential part of the Convention and consist of three means--(a)the undertaking by States Parties of the obligation to submit reports and the consideration of these reports by the Committee(Art. 9), (b)inter-State complaints between States Parties through the Committee(Arts. 11 to 13), and(c)the competence of the Committee to receive and consider communications from individuals or groups within the jurisdiction of States Parties claiming to be victims of a violation by that State of any of the rights set forth in the Convention(Art. 14). Part III of the Convention(Arts.17 to 25)is devoted to final clauses-reservations. At any rate, the Convention is the most radical instrument so far adopted in this field. It is described as "the international community's only tool for combating racial discrimination which is at one and the same time universal in reach, comprehensive in scope, legally binding in character, and equipped with built-in measures of implementation"(statement by the Committee at the World Conference to Combat Racism and Racial Discrimination). In addition, an exceptionally large number of States have become parties to it. As of 1 January 1988, 124 States have agreed to be bound by the Convention. However, Japan has not ratified it. We hope that it will be ratified by Japan as soon as possible.

著者

辻 雄一郎

出版者

日本法政学会

雑誌

法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.42, no.1, pp.52-71, 2005-11-15

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Grokster case was decided in June, 2005. Before this case, at Boalt Hall, Berkeley, School of Law, there were two arguments over the prevention of the direct and indirect infringement of copyright. One is argued by Professor Pamela Samuelson who proposes the solution by Congress. The other is Professor Peter Menell who proposes the solution by Judiciary. They think Sony Beta case differently, which was decided in 1985. In face of this battle, the Supreme Court took the middle approach and clarified what indirect infringement is. Although this case is going to be analyzed by other distinguished scholars, it is important to say that the American scholars recognize that this P2P issue includes interpretation issue of Constitutional law. However, unlike the U.S., there are not so many arguments in Japan that discuss Constitutional law issue about P2P. In this article, I like to discuss this issue focusing on the interpretation and the battle between Congress and Judicial approach. The main point is that P2P issue includes the First Amendment rights of the technology inventor, the sender of the information and the copyright holder. Unless the explanation how to solve the P2P by the government, the balance of these three shall not be kept.

著者

眞鍋 貞樹

出版者

日本法政学会

雑誌

法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.44, no.2, pp.178-188, 2008-05-15

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There have been about 100,000 people who have disappeared every year in Japan. The reasons of these people being missing are that some runaway from home, some are involved in incidents, or accidents and some other personal matters. Of the about 100,000 missing people cases, ninety percent are resolved in a few years after the person goes missing, but the rest of the cases have been neglected for a long time. Missing persons cases don't raise the social concern unless it is an incident such as a missing child or suspicious criminal case. There are a lot of cases that have been neglected for a long time despite the police having investigated under the recognition as the victims of some incidents. The reason for the neglecting of missing cases is the cases' complexity, the non-existence of support systems to the families of missing people, and the limitation of the Police investigation. The second social issues have occurred in the families of the missing people, the discontinuity among families and the isolation in the local communities to these families. This thesis shows the political and legal obstacles regarding the investigation of missing people through research carried out on 470 missing person cases. And we hope to propose some policies in order to solve the missing person issue, the smooth relationship among the families and authorities, the innovation of law on the missing issue, and the supporting system to the families.