著者
松園 潤一朗
出版者
一橋大学大学院法学研究科
雑誌
一橋法学 (ISSN:13470388)
巻号頁・発行日
vol.16, no.3, pp.89-140, 2017-11-10

This article researches the Japanese land system before modern times, especially in the Heian period. The relation between possession and title is widely different from that in modern law where the proprietary right is conceptual and absolute. In the Heian period, the right to land was expressed by many different forms. Possession(chigyo)was justified by various titles called ri, which included documents issued by authority, assurance, lineage, cultivation, precedent, long-term possession, and so forth. These titles were claimed by the litigant parties and recognized by judges in courts. Previous studies have argued that in Japanese land law before modern times, documents issued by the authorities represented a definite right to the land. But the diversity of titles in the Heian period is a remarkable characteristic common to medieval law.
著者
小関 武史
出版者
一橋大学
雑誌
一橋法学 (ISSN:13470388)
巻号頁・発行日
vol.1, no.3, pp.687-721, 2002-11-10

論文タイプ||論説
著者
大林 一広
出版者
一橋大学
雑誌
一橋法学 (ISSN:13470388)
巻号頁・発行日
vol.10, no.1, pp.429-445, 2011-03
著者
後藤 昭
出版者
一橋大学大学院法学研究科
雑誌
一橋法学 (ISSN:13470388)
巻号頁・発行日
vol.13, no.2, pp.495-523, 2014-07-10
著者
森村 進
出版者
一橋大学大学院法学研究科
雑誌
一橋法学 (ISSN:13470388)
巻号頁・発行日
vol.6, no.3, pp.1153-1178, 2007-11
著者
田中 良弘
出版者
一橋大学大学院法学研究科
雑誌
一橋法学 (ISSN:13470388)
巻号頁・発行日
vol.14, no.3, pp.985-1016, 2015-11

Economic Criminal Law in Nazi Germany adopted "Ordnungsstrafe," the administrative penalties for violation of the order that authorized the administrative agencies to impose criminal punishments without going through the criminal procedure. Furthermore, Economic Criminal Law in Nazi Germany justified severe punishments including the death penalty for violation of economic laws, by making economic orders a legally protected interest. Today, it is not permissible to impose criminal punishments without criminal procedure, in terms of separation of the powers and due process. Furthermore, it is not permissible to impose criminal punishments in the name of protecting an order because such punishments would result in abuse of criminal punishments. On the other hand, the use of non-criminal penalties by administrative agencies might be an effective means to guarantee enforcement. In reality, the Administrative Offences Act (Ordnungswidrigkeitengesetz) of the Federal Republic of Germany originates from "Ordnungsstrafe."
著者
土井 翼
出版者
一橋大学大学院法学研究科
雑誌
一橋法学 (ISSN:13470388)
巻号頁・発行日
vol.18, no.2, pp.23-37, 2019-07-10

This paper discusses the tentative reconstruction of permission from a legal perspective, and a legal criterion that can differentiate various permissions by introducing a distinction between possession and title. Under private law, the possessor is free to act within his or her territory, while the creditor is subject to various restrictions under contract law in relation to others. In response to the logic of private law, permission by an administrative agency will also be differentiated. That is to say, in the former, there is a substantial danger to being subject to the permission system, but in the latter, the regulation from the viewpoint of establishing a public space in which private persons can connect, the relation can be accepted more widely.
著者
吉田 聡宗
出版者
一橋大学大学院法学研究科
雑誌
一橋法学 (ISSN:13470388)
巻号頁・発行日
vol.19, no.2, pp.565-613, 2020-07-10

This paper reviews the history of anti-animal cruelty laws in America primarily on the basis of the contents of the first annual report of the American Society for the Prevention of Cruelty to Animals(ASPCA). In Japan, the basic guidelines for comprehensively promoting measures on the welfare and management of animals seek cooperation between the public sector with law enforcement powers and private organizations. In order to improve the system, it is helpful to examine the situation in other jurisdictions. Compared to animal welfare laws in European countries, American anti-cruelty laws have not been studied as deeply in Japan as their importance merit. As previous studies have noted, American anti-cruelty laws have their roots in the New York of the 1860s. The state legislature established the ASPCA in 1866 and delegated some law enforcement powers to it. In the ASPCA's first annual report, its list of members, related laws, some cases, and other important information are recorded. By reviewing such information, we can gain a clear understanding of how the ASPCA enforced anti cruelty laws from the outset. This paper thus analyzes the first annual report of ASPCA and other historical documents with a view to clarifying its implications for Japanese law today.
著者
川鍋 健
出版者
一橋大学大学院法学研究科
雑誌
一橋法学 (ISSN:13470388)
巻号頁・発行日
vol.15, no.2, pp.799-853, 2016-07

While the great series of constitutional theory, We the People, written by Professor Bruce A. Ackerman, vividly describes what We the People in the U. S. has achieved in the constitutional canon without the form of the amendment, his historiography does not succeed in justifying why the existing We the People has to obey such an illegitimate Constitution. This article, firstly, clarifies his theory's failure with both the methodology of 'history of law' and 'history and law.' The evidence shows his methodology of 'historicism' cannot define what the constitutional canon should be or should have been although it can define what the constitutional canon is or was. Secondly, comparing Ackerman's recent fundamental idea, 'living Constitution,' with Professor D. Strauss's one, this article refers to the common expectation regarding court's activities creating the constitutional canon and promoting democracy. However, in conclusion, this article asserts the thought of 'living Constitution' still fails to justify the illegitimacy of the U. S. Constitution even though modern constitutional studies conceived the constitutional illegitimacy as a significant topic through his contribution.