著者

中田 達也

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.19, pp.103-161, 2012-12-25 (Released:2018-01-10)

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Few people know two historical and/or archaeological shipwrecks at Tokyo bay. One is Haya-maru located at the southern-side of line drawn between Futtsu Cape at Chiba Pref. and Kannonsaki at Kanagawa pref., the other is the Oneida located at the northern-side of the line. While the former is a national vessel, the latter is a foreign warship (United States). Sinking at internal waters (territorial sea), the latter is generally under control of Japan with the exception of removal of artifacts (UNCLOS article 303 § 2). In the case of Oneiada, United States abandoned its property right by selling. Taking all the shoreline surrounded by the Sea into consideration, Japan must face up to the international trend of UNESCO Convention on the Protection of the Underwater Cultural Heritage (adapted 2001, entry into force 2009, not ratified as to Japan). This article aims to reveal some defects in the Japanese legal system through an examination of the treatment of two shipwrecks at Tokyo Bay. The most important thing is to pay attention to an idea as follows. It would be seen in the citation of titled A Study of Remains conservation Method: Underwater Remains by Monuments and Sites Division of Agency for Cultural Affairs (March, 2000). " To prevent the alteration and free salvage of underwater remains, likewise the method of the protection of remains on land, the points and situations of underwater remains should be firmly grasped, thereby such points and places positively need to be notified to the public as sites which contain buried cultural properties. It could be the first step for the protection of underwater remains above all to compel those who investigate underwater remains or carry out engineering works and so forth to notify and/or report in advance." (pp.73-74). Therefore this article particularly attaches great importance to legal aspects as well as historical stories. Such a narrative nature and background gives rise to archaeology, which could be legal interest perceived as highly beneficial interest to the public as a whole.

著者

和田 隆夫

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.20, pp.1-2, 2014-03-28 (Released:2018-01-10)

著者

成瀬 トーマス誠

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.20, pp.59-90, 2014-03-28 (Released:2018-01-10)

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In 2009, in a thesis titled "The Concept of Judicial Power in the Early Period of American Constitution", the author tried to show how the judicial power was concepted during drafting and early era of American constitution. In that thesis, the author considered about drafting process of article 3 of the Constitution, Federalists' view of the judicial power, early debate about advisory opinions, and early 2 U.S. supreme court cases. In that thesis, as a conclusion, the author found out that the judicial power had not took a shape yet, and still on the way to be defined (still, need for some sort of "case" was clear). However, further consideration about some more topics such as Anti-Federalists view of judicial power, Judiciary Act of 1789, and debate about concept of early judicial review, will enable closer look at early concept of judicial power. In this thesis, the author will discuss those topics, and shows more specific figure of early concept of judicial power.

著者

吉田 夏彦

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.20, pp.91-118, 2014-03-28 (Released:2018-01-10)

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In recent year, "Corporate Social Responsibility: CSR" has been discussed in various countries. I think, to discuss on CSR is eventually to consider a question that "For whom is the corporation exists?", and furthermore, to consider a question that "What is to be prescribed by the Corporation Law?". I have plans to consider them soon. But, in order for me to consider them, a preparatory stage of considering the CSR is required. This paper corresponds to a preparatory stage of my next study. Therefore, in this paper, first, I sketch the outlines of CSR theory where came from and how represents the historical development. Then, I introduce the basic theories and concepts that are included in the present concept of CSR. At the end, I consider them, from the perspective as a researcher of the Corporate Law.

著者

団上 智也

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.18, pp.55-85, 2011-12-19 (Released:2018-01-10)

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Justice Scalia's majority opinion in District of Columbia v. Heller rests on originalism that he has eagerly advocated for a long time. In this case, he heavily relies on historical inquiry of the language of the Second Amendment applying his own originalism to find the meaning of the article for deciding. On the one hand, this case should be appreciated and applauded for origianlists; however, on the other hand, it is severely criticized especially from the group of historians. This is due to not only that Scalia's "faint-hearted originalism" may be unprincipled or problematic but also that originalism in the present day faces a serious situation in which it may lose its characteristic as a result of theoretical progress. In this article, I try to analyze the majority opinion to clarify why these different evaluations have been raised and to inquire what occurs in originalism as well.

著者

成瀬 トーマス誠

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.18, pp.87-108, 2011-12-19 (Released:2018-01-10)

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This article examines how the concept of standing has changed through the history of the United States Supreme Court cases from 1803 to 2011. For the conclusion, the concept of the standing has changed under the demand of the change of the society. However, through the 200 years of the history, there were 6 points that have not changed, such as prohibition of advisory opinions, etc. This article argues that though standing has changed dramatically, there still remains an area which has been kept unchanged.

著者

和田 幸司

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.18, pp.109-129, 2011-12-19 (Released:2018-01-10)

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The primary concern of this paper is to clarify the causes and background of "Nishi Hongwanji Gejo Ikken" in 1690. I use three research methods. Firstly, I examine the relation of the Buketenso (CHIGUSA Arikore and YANAGIHARA Sukekado) and the Giso (KAJUJI Tuneyoshi). Secondly, I consider the position of the Nishi Hongwanji Temple at the Tenno and his court in the early period of the early modern times. Thirdly, I examine meaning of "Tyokusyo". The main findings of this paper are as follows. 1. There was the discord between the Buketenso (CHIGUSA Arikore and YANAGIHARA Sukekado) who gave the Nishi Hongwanji Temple's will to the Tenno and the Giso (KAJUJI Tuneyoshi) who gave the Higashi Hongwanji Temple's one. 2. The position of the Nishi Hongwanji Temple at the Tenno and his court was not high in the early period of the early modern times. 3. "Tyokusyo" symbolized the authority of the Tenno and his court, so the Nishi Hongwanji Temple made use of it to get the authority of the Tenno and his court.

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:24330795)

巻号頁・発行日

vol.18, pp.131-157, 2011-12-19 (Released:2018-01-10)

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The American occupation forces (GHQ) determined that Shinto was a militaristic and ultra-nationalistic religion. Therefore, the GHQ issued the Directive entitled "Abolition of Governmental Sponsorship, Support, Perpetuation, Control, Dissemination of State Shinto (Kokka Shinto, Jinja Shinto) = henceforth the "Shinto-Directive" against the Japanese government on 15 December 1945. The point of the "Shinto-Directive" is to implement the "Separation of Religion and State" established in Article 20, Clause 3 of the present Japanese Constitution. By the way, the primary purpose of this study is to demonstrate the fundamental characteristics of Shinto as a "World Religion" in order to aid a fundamental study of the "Separation of Religion and State" specified in the Japanese Constitution. The content of this study is as follows: 1. The relationship between the "Shinto-Directive" and the "Separation of Religion and State" in the Japanese Constitution, 2. What kind of a religion is Shinto?, 3. Several characteristics of Shinto viewed from the standpoint of comparative religious studies (1) natural religious characteristics, (2) native religious characteristics, (3) pantheistic characteristics, (4) theanthropic religious characteristics, (5) characteristics of tolerance, (6) characteristics of universal morality, (7) characteristics of scientific rationality, (8) characteristics of quasi-national religion, 4. The term of "Kokutai-Shinto" and its characteristics, 5. Definition of "World Religion" and its characteristics, 6. Conclusion. The greatest point which I would like to emphasize in this study is that Shinto is the most excellent religion in the world and a "Treasure of mankind" as J. W. T. Mason (1879- 1941, American journalist) described in his books.

著者

小野 義典

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.18, pp.159-214, 2011-12-19 (Released:2018-01-10)

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Dieser Bericht ist japanische Ubersetzung des Grundgesetz von Ungarn. Die ungarische Nationale Versammlung nahm am 18. April 2011 das Grundgesetz an. Der ungarische Prasident unterschrieb am 25. April 2011 das Grundgesetz. Das Grundgesetz wird in Ungarn an den 1. Januar 2012 durchgesetzt. Dieses Grundgesetz druckt das Ende vom Verfassungssystem der Ubergangsperiode aus. Und das druckt Kombination mit EU aus. Weiterhin zeigt diese Verfassung, dass ein Gedanke die ideale Methode des ungarischen originalen Landes rief. Weil ein besonderer verfassungsmassiger Artikel dort fur Leute betrachtet, die den Ursprung in Ungarn Lebensunterhalt ausserhalb einer ungarischen Grenze besitzen, konnen wir es verstehen. Ausserdem fordert es diese Verfassung, Autoritat von des Verfassungsgericht zu reduzieren.

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.19, pp.App1, 2012-12-25 (Released:2018-01-10)

著者

野畑 健太郎

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.19, pp.1-5, 2012-12-25 (Released:2018-01-10)

著者

吉田 夏彦

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.17, pp.31-54, 2010-12-24 (Released:2018-01-10)

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In recent years, the EU (European Union)'s approach to "Corporate Social Responsibility: CSR" has been discussed in various countries. Because, it may be changing significantly from the fundamental principle of company law that the company exists to maximize shareholder value. In this paper, I consider the director's "duty to promote the success of the company" in The United Kingdom 2006 Companies Act which was revised under the influence of the EU's approach to CSR. Because I think that by doing this work, the problem that occurs when the EU's approach to CSR is made legislation is clarified.

著者

長尾 英彦

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.17, pp.55-68, 2010-12-24 (Released:2018-01-10)

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"Wire-service defense" is the law theory that a newspaper publishing news items from a wire-service company untouched should not be responsible for libel. This theory has been formed by court decisions in USA. In Japan, there is no provisions of it, nor judicial precedents approving the theory directly. But, considering usefulness in practice, we had better approve it to a certain extent, I think.

著者

宮畑 加奈子

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.17, pp.69-89, 2010-12-24 (Released:2018-01-10)

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Similar to the issue of differing historical views in other East Asian countries, varying historical perspectives exist with regard to the legal history of Taiwan. Especially since the political democratization of the 1990's in Taiwan, two historical views, i.e., that of the Republic of China and that of Taiwan have become evident. The aspect of the mention of the Japanese Governance in Taiwan has shown inherent contradiction or conflict between these two historical views. Last year's Interpretation (Uniform Interpretation of Statutes and Regulations) No. 668 indicates an inclination toward the historical view of the R.O.C.

著者

倉山 満

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.17, pp.91-111, 2010-12-24 (Released:2018-01-10)

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It is said that Yoshino Sakuzo was a standard-bearer of the democracy of Japan. However, it is assumed that it takes advantage of an expansionist current of the times in the youth, and nationalism speech and behavior was done by him. A current research is exaltation of the nationalism done when he is young and it is insisted that thought be fundamentally changed. I wonder whether the nation was existence that can be thrown away however for Yoshino. No, it is not so. Even if the insistence was changed for Yoshino according to the change in the situation, the nation outlook that existed in the basis was immovable. In this thesis, whether Yoshino really changed thought is verified through the key words. These are "Nation State", "Constitutionalism", and "Election and party politics". Moreover, there are "Modernist", "British type monarch system", and "Security" importance in "Constitutionalism".

著者

団上 智也

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.17, pp.113-134, 2010-12-24 (Released:2018-01-10)

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Although many scholars seek to find the universal and settled meaning of the ninth amendment and enjoy the richness of the inquiry relating to the unenumerated rights, the current situation about the interpretation of the ninth amendment is too various and complicated. However, thanks to originalism, someone can categorize the series of amassed scholarly works following the several versions of originalism such as original intent originalism, original understanding originalism, original public meaning originalism, and semantic originalism. Each type of originalism may reveal the possible (or acceptable) interpretation over the meaning/character of the ninth amendment or/and the unenumerated rights. In this article, the author has tried to keep various interpretive accounts about the ninth amendment fit into the categories that are the fruits of the theoretical progress of originalism.

著者

吉川 智

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.17, pp.135-158, 2010-12-24 (Released:2018-01-10)

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In Japan, there are many arguments about the local suffrage of alien inhabitant. The fundamental human rights are guaranteed to all of the people by the Japanese Constitution. But this "all of the people" include alien, especially a foreigner or Korean living in Japan, or not, that is an important question. Early in this year, the most Japanese famous scholar with regard to this matters and former Justice of the Supreme Court shifted own doctrine from tolerance to prohibition. This difficult problem is not settled yet. In this article, I attempt to dissect several doctrines, to compare with the constitutions of the countries of the world, and to treat the local suffrage of alien inhabitant.

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:24330795)

巻号頁・発行日

vol.16, pp.69-88, 2009-12-22 (Released:2018-01-10)

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Japanese unwritten traditional Constitution is based on "Emperor System by a line of Emperors unbroken for ages eternal". It was destroyed fundamentally by present Japanese Constitution forced by American occupation forces. This thesis focused relationship between present jurisdiction and Japanese unwritten traditional Constitution.

著者

久禮 義一 平峯 潤

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.16, pp.89-113, 2009-12-22 (Released:2018-01-10)

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It is said that 21 century is a century of human rights. Many studies are published on human rights. But Japanese systems have problems with relief measures of human rights. Especially the system of Civil Liberties Commissions is not known to many people. This paper is for the purpose of showing the reality and the problems on the system of Civil Liberties Commission.

著者

大野 正博

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.16, pp.153-178, 2009-12-22 (Released:2018-01-10)

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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."