著者

樫原 義比古

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.165-177, 2008-05-15

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Restrictive covenants such as non-competition and non-disclosure, as employers think about the need to protect business interests, have long been present in many Japanese employment contracts. Courts, however, have been doubtful of such restrictive covenants and sometimes have refused to issue injunctions to enforce them. The reality that there are no clear rules regarding enforceability of restrictive covenants can be frustrating for employers who are left with no reliable means of keeping their key employees from joining a competitor or competing themselves. Faced with a similar problem, employers in England developed a concept called "garden leave" and this arrangement has been generally accepted and enforced by English courts. Garden leave clauses in England have become common in the employment context, but may they become a tool commonly used by employers to protect their businesses from the dangers inherent when key employees terminate their employment in Japan? The purpose of this article is to examine the question as to whether garden leave provides appropriate safeguards and should be enforced by courts. In analyzing garden leave clauses in an era of high employee mobility, it is difficult to rationalize the need for the garden leave doctrine in Japan.

著者

松井 丈晴

出版者

日本法政学会

雑誌

法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.47, no.1, pp.1-17, 2010

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In Japan, "Manager" is defined under Article 41(2) of the Labor Standards Act, as a person in a position of supervision or management or person handling confidential matters, regardless of the type of enterprise, to which the provisions regarding working hours, rest periods and days off set forth in this Chapter, Chapter VI and Chapter VI-II do not apply. In contrast, in the United States "Manager" is defined under Sec.13 (a) (1) of the Fair Labor Standards Act. In court cases between McDonald's Corporation in America and Japan, the courts settled questions concerning the definition of "Retail Store Manager". Through a comparison of the. American and Japanese McDonald's Corporation court decisions, I analyzed trends in judicial precedents concerning the concept of "Manager" following the revision of the American Code of Federal Regulations in 2004. Furthermore, by highlighting the differences between the American and Japanese concepts of "Manager", I examined what constitutes a "Manager" in Japan.

著者

三浦 秀之

出版者

日本法政学会

雑誌

法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.47, no.1, pp.18-46, 2010-11-15

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The "55-year system" (55-nen taisei) under the LDP-led government contributed to the institutionalization of policy making in Japan after 1955. In this regard, the prevalence of a strong tripartite relationship between the LDP agricultural politicians (Norin-Zoku), the Ministry of Agriculture, Forestry and Fisheries (MAFF) and the Japan Agricultural Cooperatives (JA) in policy-making protected the agricultural sector in Japan. However, the premiership of Junichiro Koizumi from 2001 to 2006 saw the emergence of a top-down approach in policy formulation in Japan. Analyzing recent policy initiatives in the agricultural sector, I found that the top-down approach in policy-making under the Koizumi leadership contributed to the successful removal of trade barriers on some agricultural products in FTA negotiations. However, changes in leadership style and in the policy-making process were insufficient to fully liberalize Japan's highly sensitive agricultural sector, especially with respect to the imports of rice due to strong opposition from the LDP agricultural politicians. In this paper, I examine how the change from the "55-year system" to Koizumi's top-down management style has influenced the pace of agricultural liberalization in Japan and why, despite the new policy-making approach, a complete liberalization of sensitive agricultural products, especially rice, did not take place. In particular, I examine how each actor pursued the protection of sensitive agricultural products.

著者

齋藤 康輝

出版者

日本法政学会

雑誌

法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.40, no.1, pp.166-176, 2003-11-05

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1 The location in question As for the member of the Diet, it is originally hoped that he(she) acts as "a representative of whole country people". However, actually, the action is restricted by a political party. By this report, I want to examine many problems around such a member of a party qualification and a member of the Diet qualification from a perspective of study of the constitution. 2 Relation of a member of a party qualification and a member of the Diet qualification in Japan (1) Sanctions of a case of party decision violation (2) When a member of the Diet change the party 3 A problem of a member of a party qualification and a member of the Diet qualification in Germany 4 A summary In Germany, the conclusion charge account that was different from Japan does a problem of the seat loss by transference of a member of the Diet by a federal level, and, besides, it is argued in various ways still. I think that there is a problem very much about law revision of this time in Japan(revision of the Public Officers Election Act / the Diet Act , 2000).

著者

真下 英二

出版者

日本法政学会

雑誌

法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.39, no.2, pp.98-113, 2003

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In recent years, as information technologies develop, the movement toward constructing the electronic government (e-government) is becoming active. By e-governments, we can increase efficiency of administration and observe the action of administration more easily. And as the result, it is said that administrative action of local autonomies will be more active and democratic. The Japanese government announced "The E-japan Strategy" and "The E-japan Strategy 2002". They aimed to realize almost all administrative procedure can be followed on-line by 2003, not only about the central government, but also all of the local autonomies. Certainly, e-government may have many useful fields, but many problems also exist. Particularly, according to the investigation by Ministry of Public Management, Home Affairs, Posts and Telecommunications, most local government is not so eager for constructing e-government. It is because of the talented people, or capacity of local autonomies. So, it can be said hasty to construct e-government without taking some measures to reinforce capacity of local autonomies, such as consolidation of municipalities.

著者

真下 英二

出版者

日本法政学会

雑誌

法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.41, no.2, pp.97-104, 2005

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In Japan, the introduction of disclosure of official information started in the municipality. And it has a big influence on the attitude to information disclosure by the advancement of the telecommunication technology. Proceeding the computerization of administrative information, it is expected to take place a change for the ideal way of information disclosure. And the computerization of administrative information enables a wide dissemination. It is thought that opening the homepage to the public can play an important role in "Opened administration" in parallel with the introduction of disclosure of official information. However, it is possible to think whether neither the computerization of administrative information nor opening the homepage to the public necessarily lead to the promotion of the community participation on the other hand. Moreover, the content open to the public on the homepage doesn't provide with the content to expand the resident self-governance. In addition, in most cities, towns, and villages, enough administrative information is not open to the public on the homepage, and the homepage doesn't function well as a medium of announcing to public. Information open to the public on the homepage has been biased to information related to sightseeing rather than administrative information for the citizens. In addition, residents are not so much interested in information that the administration offers on the homepage. In such a meaning, however the computerization of administrative information certainly has the possibility of contributing to the promotion of the community participation, it can be said that it has a lot of problems at the same time.

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

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.