36 1 1 0 OA 主体と制度

著者
日比野 勤
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.2006, no.64, pp.43-59,275, 2006-03-30 (Released:2012-06-20)
参考文献数
27

Human entities are of a psychic existence. They are of a pathos-like, passive existence and as such, need to act towards the outside world. The autonomous existence of an entity emerges when it actively engages the world, and through a common actual engagement with the world emerges the autonomy of an organisational entity. However, as a mechanistic way of thinking develops, the actual psychic existence of the entities comes to be replaced by a physical psychic existence. In such circumstances, although entities are still autonomous and make decisions on their own, they are unable actively to engage with the outside world. They are merely elements in an operational sequence, and the autonomous existence of not only the individual entities, but also of organisational entities is denied in such a situation. In recent years, with the growing influence of spiritualism, people increasingly become a virtual psychic existence. Here, the distinction between reality and the virtual world becomes blurred, and occasionally, a forceful, possibly even violent, realisation of the virtual world is attempted, although this does not mean that there is any actual commitment to the world.Law cannot be immune from such transformation of entities, but the legal system has, however, so far been unable to cope with such entities in transformation. Problems such as the appropriateness of using brain-death as a criterion for medical death, refusal of blood transfusions by Jehovah's witnesses, and the control imposed on Aum-Shinrikyo as an organisation should be understood in this context.

7 0 0 0 OA 性暴力と法

著者
角田 由紀子
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.2001, no.54, pp.44-58,259, 2001-03-30 (Released:2009-01-15)
参考文献数
11

The situation regarding victims of sexual violence has dramatically changed in this decade in Japan. Mainly women activists who addressed the issue of victim's rights of sexual violence have made this change. The number of victims who seek legal remedies has increased. This movement has made it clear that our legal system has not worked well for giving them appropriate remedies.In the field of criminal law, rape is still determined under the influence of the patriarchal ideology. For example, rape is determined whether a victim made utmost resist against her offender. This way of determination can release rapists who know the victims, because in those cases it is more difficult for them to resist strongly. In addition, it is not likely for the victims of non-stranger rape to report the rape to the police. Victims still have faced the victim-blaming attitude of the society as a whole as well as a legal system itself. The above mentioned problem of the criminal law has also been seen in civil cases in which victims are demanding compensations from offenders. This happened particularly in sexual harassment lawsuits. The cases in which plaintiffs were defeated were determined by judges who relied on so called rape myth. Another problem of the civil cases is low amount of compensation, even though in some cases we can see relatively high amount of it.The root cause of the problem is that there is merely education of sexual discrimination in the legal department of universities and the Legal Research and Training Institute run by the Supreme Court. The change of the issue of women's rights, which happened internationally in this decade, has not yet reached those educational bodies for lawyers.
著者
蟻川 恒正
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.2003, no.58, pp.29-44,272, 2003-03-30 (Released:2009-04-22)
参考文献数
22

My article deals with a long-neglected question on Japanese defamation law: when a court order is a "specific performance"to restore a victim's reputation, should it be considered mandatory or optional?My aim is to make an inquiry into the "coercive" nature of a court's decision. Several dichotomies and antinomies, which I took from both French and English legal traditions, have been given an analysis: remède and remedy, réparation en nature and répatation par équivalent, exécution volontaire and exécution forcée, as well as enforcement and accomplissement.
著者
吉田 善明
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.1978, no.30, pp.6-21,224, 1978-03-30 (Released:2009-01-15)
参考文献数
33

This treatise is written with a view to analysing present constitutional powers of the British Monarchy and the practice in control of the Queen in Parliament and the People.The main content is as follows:IntroductionI. The position of the constitutional Monarchy.II. Political powers and social powers of the Monarchy.(i) Political (social) powers of the Monarchy in the U. K.(ii) Functions which the Queen performs in the Commonwealth.III. The practice in control of the Queen in Parliament and the People.(i) On the practice in control of the Queen in Parliament.(ii) On the practice in control of the Queen by the People.Conclusion
著者
富井 利安
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.1983, no.35, pp.139-143,239, 1983-03-30 (Released:2009-01-15)

The purpose of this paper is not to examine the Supreme Count Decision in in the Osaka International Airport Case itself, but to offer a perspective of the action of environmental disruption.In the first section, I have proposed to divide the action of environmental disruption into three forms, i. e. action for damage, action for injunction after environmental injury occurred, action for injunction before environmental injury comes and insisted on the urgent question and subject in each action.In the second, I have indicated, on the annexed paper distributed to the meeting, the character and subject of actions of environmental disruption in and around Seto Inland Sea.
著者
仁木 恒夫
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.2004, no.61, pp.92-110,217, 2004-09-30 (Released:2010-04-15)
参考文献数
42

This paper analyzes the practice of legal assistants at law firms in Japan. Lawyers sometimes say that legal assistants should acquire more legal knowledge and legal skill than now for the rational management of law firms. The process of providing legal services at law firms is constructed not only of legal knowledge and legal skill, but also of many communications among lawyers, clients and legal assistants. This paper argues that, for lawyers, teamwork with legal assistants is an important part of reasonable legal practice.
著者
福井 康太
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.1999, no.51, pp.171-175,287, 1999-03-20 (Released:2009-01-15)
参考文献数
6

This paper aims to reconsider the potential of Niklas Luhmann's theory of legitimation through (legal) procedure. According to the ordinary understanding of his theory (probably also his own understanding), legal procedure is understood as a kind of coercive system, which isolates parties, absorbs their protests and makes them accept conventional legal decision unwillingly.But this understanding of Luhmann's theory of legal procedure appears to be impertinent, in spite of Luhmann's own understanding. Man can understand the functions of legal procedure opener, in the scope of possible understanding of his theory. With some devices, which strengthen activity of parties in the legal procedure, parties can interpret and define their own troubles advantageous to themselves, referring to various kinds of factors, which are not limited to legal factors, that appear in the court (for example, interpretations or expectations of the same kinds of troubles by other people, ways to cope with the same kinds of problems etc.). Following the latter understanding, parties can learn the results of the legal procedure positively. It is expected that by the effects of 1998 amendment of code of civil procedure, appropriate devices in the legal procedure become easier.
著者
岡野 八代
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.2006, no.64, pp.60-76,276, 2006-03-30 (Released:2012-06-20)
参考文献数
35

Legal recognition of same-sex marriage is one of the biggest political issues of gay and lesbian movements in both Canada and the U.S. While same-sex marriage was legalized in July 2005 in Canada; the equal right to marriage for gays and lesbians is far from being established in the U.S., as suggested by the debates during the 2004 elections. What makes so much difference between the two countries on this issue? In searching for a key to answer this question, this paper intends to trace the difference to different understandings of "the politics of recognition."Comparing theories of "the politics of recognition" in Canada and the U.S., as represented by two distinguished thinkers, Nancy Fraser and Charles Taylor, this paper explores the critical points made by each thinker and the inevitable dilemma which "the politics of recognition" reveals. Unlike Fraser's argument that claims for social justice since the 90s are increasingly divided into two conflicted claims-one seeking redistributive justice and the other, the politics of recognition-Taylor points out that "the politics of recognition" is deeply rooted in the modern liberalism, especially the politics of equal respect.Following the Hegelian idea of constructing self-consciousness, Taylor views recognition by others as crucial for self-formation, and misrecognition as fatal to it, especially in the modern age. Through the recent changes in the gay and lesbian movement in Canada, we can realize that seeking equal rights under the law paradoxically de-politicizes the claims of the liberation movement of the 70s, and worse than that, forces the multiple actors into the single category listed in the law."The politics of recognition" à la Taylor discloses that "identity politics" does not result from claims for recognition, but from claims for equal respect. Or rather, a superficial understanding of self formation under the politics of equal respect and uncritical belief in the reversibility of a self and others gets claims for recognition more acute and serious in the modern age.
著者
森 謙二
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.1979, no.31, pp.117-140,234, 1979-03-30 (Released:2009-01-15)
参考文献数
34

Inheritance of the first-born child ("Ane-Katoku Sozoku" in Japanese) refers to a system which stipulates that if a female happens to be the first-born child, then she (saying exactly, her adopted husband "Muko-Yoshi" in Japan) inherils the family's entire holdings. This system is different from primogeniture, in the strict sense of which the eldest son inherits the family's holdings.The custom of the first-born child inheriting was found in the North-East Regions of Japan, and exsisted until the early days of the Meiji-period. But after that, it began to break down.My report explains the following.1) The actual state of this custom in Satomi-Village in Ibaragi.2) The reason why this custom efisted.3) The process by which this custom broke down under the influence of the Act of Conscription and the Meiji Civil Code.

2 0 0 0 OA 戸主会の記録

著者
利谷 信義 森 實
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.1966, no.18, pp.140-210, 1966-04-20 (Released:2009-04-03)
参考文献数
17
著者
樫村 志郎
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.2005, no.63, pp.161-185,267, 2005-09-30 (Released:2011-04-13)
参考文献数
27

The present article analyzes the impact of the recent judicial reform on the rural community of Japan. It is based on the multi-methodological study project on rural justice in contemporary Japan. The project has been financially supported by JSPS no. 15330004 and the 21st Century COE program for Kobe University.Firstly, the article reviews the major reforms in national law level. Though Japan has long been suffered from shortage of formal legal resources, the situation is rapidly changing because of the national judicial reform movement in last 10 years. The number of lawyer (bengoshi) in 2005 has increased by 50% compared with that of 1990: The Japan Federation of Practicing Attorneys (Nichibenren) has established the legal advice centers in all jurisdiction of local courts. The regulatory restrictions have been removed in such areas of advertisement and fees: The government enacted the "the comprehensive legal support act" in June 2004. However, the availability of legal services is still severely limited in small towns and cities in non-metropolitan areas.Secondly it examines the nation-wide distribution pattern and its changes, for 1998 to 2002 period, of attorneys (bengoshi) and judicial scribners (shihoshoshi) in local court jurisdictions, and it finds that the attorneys are more concentrated in largest metropolitan areas than the judicial scribners; however, the number of judicial scribners is increasing in more of the urban areas and decreasing in more of the rural areas than the attorneys.Lastly it qualitatively describes how the legal problems are resolved almost without resorting to attorneys in rural areas by reporting 4 case studies of small cities in rural areas. People in those areas usually rely on judicial scribners for legal remedies for such troubles as consumer problems, domestic violence, and debts. They also ask advices of the local police, local government's, especially the consumer protection agencies and their branches. In each of those areas, one or two active attorneys recently opened the publicly funded office of law in the community. It is also noticeable that not a small number of people hesitates to ask advice to the "foreign" attorney even in serious legal troubles.
著者
樋口 陽一
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.2000, no.53, pp.46-55,246, 2000-12-20 (Released:2009-01-15)
参考文献数
4

Sous la Constitution de 1946, le pouvoir judiciaire bénéficie du statut de l'autonomie presque parfaite à l'égard des autres organes de l'Etat. Quant au barreau, il a obtenu une autonomie beaucoup plus élargie qu'avant la guerre et son statut a été si considérablement valorisé qu'il est d'usage de recourrir, au sujet de grands problèmes juridiques et judiciaires, à la concertation de trois organes de profession légale: Cour suprême, Ministère de justice et Confédération japonaise des barreau. En ce sens, on peut parler de la justice en tant que corps. Or, des promoteurs et partisans de la "Réforme judiciaire" en préparation exigent, du tribunal ainsi que du barreau, "plus d'ouverture" au bénéfice des justiciables. Cette exigence puise sa propre légitimité finalement dans deux notions-clé: logique du marché au profit des consomateurs de la justice, et responsabilité devant la nation en tant que souverain.Quel choix peut-on imaginer en face de cette exigence? L'accepter pour renoncer à la caractéristique des professions légales en tant que corps, ou la refuser pour défendre de ce dernier? Il faudrait, de toute facon, savoir la signification que chaque coix pourrait avoir pour l'avenir du constitutionnalisme et de l'Etat de droit.
著者
遠藤 比呂通
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.2006, no.64, pp.140-152,279, 2006-03-30 (Released:2012-06-20)
参考文献数
33

It is 10 years since I first visited Kamagasaki, which is the biggest slum in Japan. "Are there any human rights exist in Japan?" "Kamayan", a Kamagasaki daily based worker, responded to my self-introduction that I had been teaching human rights law in Japan."Kamayan" was quite right in his allegation. Kamagasaki workers and homeless people were "displaced persons" in the sense used by Hanna Arendt in her influential book "The Origin of the Totalitarianism": their human rights were not violated, but they lost the right to have human rights itself.Since then, I have been street lawyer in Kamagasaki. Especially, I have been in charge of a forced eviction case against homeless people by Osaka City. We have been alleging in this case "a right to adequate housing" stipulated in the Social and Economic Covenant of Human Rights, because only these kinds of rights would confer "Kamayan" security of legal tenure beyond the scheme of Nation State, which was thought by Arendt as a hazard to human rights.From my experience as a street lawyer, the right to adequate housing should be properly defined only when homeless people themselves join the negotiation process. The Committee of the Covenant has been using 'genuine consultation' to describe this process. "Kamayan" should be treated as a legal agency in the field of law.
著者
松村 良之 太田 勝造 岡本 浩一
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.1997, no.49, pp.198-202,247, 1997-03-30 (Released:2009-01-15)
参考文献数
13

Japanese judges usually spend their entire legal career as judges. Many of their legal jargons are unique to their professional circle and reflect their cognitive structure about legal issues."Suji" and "suwari" are among such most frequent jargons. "Suji", whose lexical translation is "line", is often used in a phrase "suji ga warui", meaning "suji is bad for this case". Such a phrase might be translated into "this case has a bad logic or an unclear background". The phrase is typically used to describe civil cases, and is less often spoken of by other legal professionals. "Suwari", whose direct translation is "well-seatedness" is similarly phrased, but it is, arguably more often used to describe judgments that are already made at courts of lower level.The present study is an attempt to give quantitative description of these two concepts by a cognitive psychological approach. As the first stage of our study, we made intensive interviews to seven retired or current judges. Based upon the interview result, we structured the questionnaire.As the second and final stage, we sent out the questionnaires to all the retired judges in Japan (1, 120), out of which 339 were returned. The respondents were asked to respond in psychological judgment scales, to fictitious cases in which some crucial details were manipulated as experimental variables. Statistical analyses on these variables are worked out to render experimental description of these concepts as correlates to and functions on more direct legal perceptions.
著者
戒能 通厚
出版者
日本法社会学会/有斐閣
雑誌
法社会学 (ISSN:04376161)
巻号頁・発行日
vol.2000, no.53, pp.29-45,245, 2000-12-20 (Released:2009-01-15)
参考文献数
16

Legal Profession of Japan was created after the Meiji Restoration. Since the government did not intend to develop a strong private bar that could represent citizens in disputes, the primary objective of securing the law graduates through hard exam. for the government was to produce judges, prosecutors and upper-level state bureaucrats. After the World War II, the Practicing Attorneys Act was revised to put practicing lawyers on equal footing with prosecutors and judges. Since then, members of all three groups follow a similar path. However, the route to judgeship in Japan starts with a kind of apprenticeship as an assistant judge followed by the promotion system in the Japanese court hierarchies as 'independent and full time judge', Although law is a popular undergraduate major in Japan, a degree from law department is not prerequisite to sitting for the National Bar Exam. which is said to be the most difficult exam. in Japan.Last year, the government had appointed the Judicial Reform Committee chaired by Prof. Koji Sato of Kyoto University and the Committee is now preparing Interim Report mainly focusing on the increase of the number of Bengoshi (attorney at law) as well as reform of Bengoshi-system for much easier access to Bengoshi.Some bengoshi groups are now promoting Hoso-Ichigen (Anglo-American System of the judicial appointments) which is simply to limit the resource of judge to practicing bar (or prosecutors) in order to abolish bureaucratic judgeship ruled by the General Secretariat to the Supreme Court.This article is discussing the historical origin of the notion of Hoso-Ichigen as well as the independence of Bengoshi and also criticizing the introduction of Japanese version of Law School system into universities without any prospect of the realization of Judicial Reform in Japan.