著者

眞次 宏典

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:1343635X)

巻号頁・発行日

vol.10, pp.93-120, 2003

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Whenever we discuss about modern constitutions and political order, the notion of 'an absolute', namely divine or despotic power appears in our discourse. Such notions as natural law, natural rights, the basic norm, sovereignty and constituent power show the existence of 'an absolute' in our theories of the modern constitution and political order. If seems that 'an absolute' has been indispensable to the theories of the modern state and the constitution. But is it true? Examining the notion of 'an absolute' in our theories of the modern state and the constitution, this paper makes a critical analysis of the reason as to why 'an absolute' appeared in the modern age.

著者

大矢 吉之

出版者

関西憲法研究会

雑誌

憲法論叢 (ISSN:1343635X)

巻号頁・発行日

no.14, pp.21-51, 2007-12-26

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Ichiro Ozawa, representative of Democratic Party which won the House of Councilors election objected to extension of Antiterrorism Law, and the law lapsed on November 1. As for the reasons of his opposition, he said that the refueling activity of the Marine Self-Defense Force in the Indian Ocean is a cooperation to the American war and the use of the right of collective self-defense is not recognized by the Japanese constitution. He published his essay in "Sekai" magazine and clarified the thought. This article examines these problems critically.

著者

長尾 英彦

出版者

関西法政治研究会

雑誌

憲法論叢 (ISSN:1343635X)

巻号頁・発行日

no.14, pp.91-106, 2007-12-26

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YAMATO(Spediteur) behaupt, dass die neue System der Postpaketgebuhren wird einer unberechtig Ausverkauf und Kartellgesetz-ubertretung. YAMATO fordert das Verbot. Das Gericht weist die Behauptung ab. Wahrscheinlich ist es angemessen. Denn, Ich denke, dass das Unternehmensausfuhrung des YAMATO sei unbewegt und so das Postpaket macht es schwierig nicht. Aber, angesichts anderes Falls, vermute Ich, es besteht eine Tendenz des Gerichtes, der Anerkennung des "unberechtig Ausverkauf" eng Schranken zu setzen.

著者

南部 義典

出版者

関西法政治研究会

雑誌

憲法論叢 (ISSN:1343635X)

巻号頁・発行日

no.20, pp.3-58, 2014-03-28

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The law of the procedure of amendment to constitutional law of Japan (National Referendum Law) is enforced, but legally incomplete. Three legislative matters as to the additional rules of NRL have still been unsolved, so the referendum would not have been held under right operation. As this legal obstacle, for example, in case of the proposal for the amendment to the qualified voters by the National Diet, the minimum age of voting cannot be settled administratively at eighteen or twenty. And more, the range of regulation to referendum campaign by the public officials is legally unclear. At the 185th Diet, the reform proposals by Liberal Democratic Party and Japan Restoration Party to solve the legislative matters had been argued, but each proposal was not enacted. I expound about the contents of the reform proposals and the circumstances to be enacted in this article. For the more effective argument to amendment to constitutional law, the reform proposal of NRL shall be enacted as soon as possible, based on the wide consensus between the government parties and the opposition ones.

著者

土居 靖美

出版者

関西憲法研究会

雑誌

憲法論叢 (ISSN:1343635X)

巻号頁・発行日

no.10, pp.39-51, 2003-12-20

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The theory was appeared in the Note of the Harvard Law Review (Vol115, No.4) on the bombing of the World Trade Center of Sept 11, 2001. President Bush used the armed forces of US to prevent future acts of terrorism. Sept 11 attack seems somehow different from the other event. This logic offers two explanations for the change in policy based in economic analysis and based in shifts in favored rationales for criminal punishment.

著者

長谷川 史明

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:1343635X)

巻号頁・発行日

vol.13, pp.133-151, 2006

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Although Western constitutionalism has little to do with a written constitution, since the Meiji Era constitutional theorists in Japan have concentrated their studies mainly on the written constitutional Code or documents. So, it tends to overlooked that modern constitutionalism originated in medieval constitutional thought, especially Christian doctrines and the rule of law tradition. I think that the following two stands form the central factors of the Western constitutionalism. First, arbitrary power-exercised by the power-holders should be denied and rejected. And secondly, in order to restrict the exercise of such arbitrary power, the rule of law should be available and applied. In this essay, I concentrate my attention on the Western characteristic Weltanschauung or Ontologie, that is to say, "All things are created by the Creator", and attempt to point out that Roman Catholic Church offered a notion of the separation of the power-holder and the decision-maker. And probably, this notion is one of the basic ideas that Western constitutionalism contains.

著者

小森 義峯

出版者

関西憲法研究会

雑誌

憲法論叢 (ISSN:1343635X)

巻号頁・発行日

no.5, pp.27-47, 1998-12-19

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The Constitution of the Empire of JAPAN in 1889 (Meiji Constitution) was most influenced by the Prussian Constitution in 1850. In this Essay I studied comparatively both constitution, distinguishing points of similarity and difference. Especially I emphasized originality of Meiji Constitution which was not existent in the Prussian Constitution.

著者

安保 克也

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:1343635X)

巻号頁・発行日

vol.15, pp.101-126, 2008

被引用文献数

1

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It seems that wars in the 21st century are mainly in the form of Cyber Warfare rather than a more conventional style of confrontation. Cyber Warfare breaks out without declaration. Therefore, under the current Japanese legal system it is difficult to prevent Cyber Warfare, which is fought in the lawless zone called Cyberspace. If there were any legal regulations, such as international treaties, these laws would be broken easily with the new technology that is available. This paper tries to analyze how different nations tackle Cyber Warfare and how Cyber Warfare could be interpreted legally. It also makes several how suggestions on the Japanese defense policy against Cyber Warfare.

著者

大野 正博

出版者

関西憲法研究会

雑誌

憲法論叢 (ISSN:1343635X)

巻号頁・発行日

no.16, pp.153-178, 2009-12-22

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This article aims to investigate the legality of retaining waste as left property which was determined by the Supreme Court on April 15, 2008 based on discussions in the United States, such as California v. Greenwood, 486 U.S. 35 (1988). Criminal Procedures Law Article 221 is provided for "A public procurator, a secretary of the public procurator's office, or a policeman may retain an article or articles left by the suspect or other persons, or produced voluntarily be the owner, possessor, or custodian." The Supreme Court entered a judgment in which it acknowledges that if the investigation authority renders the necessity of examining discarded disposable waste at waste collection locations on public roads, based on Article 221 in the Code of Criminal Procedure, the investigation authority may retain such waste as left property. Conclusively, this judgment was appropriate in general. However, there are some problems in views of (1) authorization of possession renouncement and (2) privacy right protection for the persons who disposed the waste. It is considered impossible to seize such waste though it is "left property." If the waste is considered to be important evidence, then it is rather appropriate for the investigation authority to proceed with the seizure. We await accumulation of judicial cases which maintain the balance between "the necessity of investigation" and "privacy right protection of the disposers."

著者

阿部 照哉

出版者

関西法政治研究会

雑誌

憲法論叢 (ISSN:1343635X)

巻号頁・発行日

no.20, pp.119-133, 2014-03-28

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In drafting of the Japanese Constitution GHQ intended to: Establish a constitutional monarchy with sovereignty reposing in the people by modifying the Emperor system and making the Emperor the ceremonial head of the state. The Emperor has lost all formal and informal political powers. He refrains from giving any political comments. However, the Emperor is not only a mere symbol of the state, but also an active symbol which does function as integrate center by the medium of "acts in matters of state" and another "public acts". The Emperor enjoys a sound social legitimacy since 1945. What is source of this legitimacy?

著者

吉川 智

出版者

関西法政治研究会

雑誌

憲法論叢

巻号頁・発行日

no.1, pp.37-47, 1994-04-15

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January 28, 1994, the Senate in the United State Congress adopted the resolution that neither Japan nor Germany should be admitted as permanent members in the United Nations Security Council. As the negative reasons, the Senate pointed out that they were not capable of discharging the full range of responsibilities accepted by all current members of the Security Council. Generally, when we discuss joining the permanent menbers, the argument only from the possibility has often been put forward. But, in this article, I think that this problem should be discussed from a different viewpoint of the appropriateness.

著者

齋藤 隆広

出版者

関西憲法研究会

雑誌

憲法論叢 (ISSN:1343635X)

巻号頁・発行日

no.12, pp.29-49, 2005-12-17

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Act on the Protection of Personal Information was enacted in December 2003. This study aims to analise the backgrounds of the Act and how to deal with the issue in relation to personal information based on the guidelines and precedents which are applied to medical institutions.

著者

大矢 吉之

出版者

関西憲法研究会

雑誌

憲法論叢 (ISSN:1343635X)

巻号頁・発行日

no.3, pp.25-52, 1996-06-28

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D. S. LUTZ attempts to link the theoretical premises underlying one important aspect of constitutional design, the amendment process, with the empirical patterns revealed by a systematic, comparative study of constitutions. He begins with a brief overview of the theoretical assumptions that underlay the formal amendment process when it was invented, identify a number of theoretical proposition concerning the amendment process, and then look for patterns in the use of the amendment process. The purpose of this paper is to examine such a cross-national empirical analysis developed by LUTZ and discuss his theory of constitutional amendment.

著者

小森 義峯

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:1343635X)

巻号頁・発行日

vol.10, pp.17-37, 2003

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English unwritten constitution is a great help to (a) maintenance of old and good tradition and civilization, (b) flexible correspondence to changing social circumstances, (c) stability of legal life by no calling an unconstitutionality in question. On the other hand, in Japan, the problem of amendment to the Japanese Constitution is greatly discussed now. Many drafts of the new constitution appear. But, in my opinion, an unwritten constitution is extremely suitable for the new Japanese constitution, because historically Japan is elder than England. In this thesis, a table of contents is as follows : (1) general idea of an unwritten constitution, (2) sources of law of the English unwritten constitution, (3) merits of the English unwritten constitution, (4) the significance of an unwritten constitution in Japan, (5) sources of law of the Japanese unwritten constitution, (6) a comparative study of Magna Carta in England and the 17 Articles Constitution in Japan, (7) Conclusion.