| Budget Amount *help |
¥1,700,000 (Direct Cost: ¥1,700,000)
Fiscal Year 1995: ¥500,000 (Direct Cost: ¥500,000)
Fiscal Year 1994: ¥1,200,000 (Direct Cost: ¥1,200,000)
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| Research Abstract |
(1) What kind of influence does an Enactment of Administrative Procedure Law (APL) have on administrative appeals? To clarify this issue is the aim of this research. On this occasion, I had an intention of comparing Japan-Law with Germany-Law and of using declaration of reasons for a disposition by administrative agency as a model. I have examined Administrative Appeal System (Widerspruchverfahren) and Declaration of Reasons (Begruendung des Verwaltungsakt) in precedents of the Federal Administrative Court in Germany. This work will turn into two articles soon.
(2) Administrative Appeal System is provided in Administrative Court Law (ACL), namely judicial proceeding Law. On the other hand administrative procedure is regurated in APL in Germany. In this case is Administrative Appeal System an administrative procedure or judicial procedure? According to some former judgments of Federal Administrative Cort, Administrative Appeal System was understood as judicial proceeding. But the Court r
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egards it as administrative procedure today. Many authors support this view.
By the way, ACL provides some significant matters concerening Administrative Appeal System, but doesn't the other details. As a result people must consider the issue whether ACL should be applied to Administrative Appeal System or APL,when there is not any clear provision in ACL.It is an opinion of Procedents in the Federal Administrative Court and of many authors to settle this issue by a substance of a affair.
For example, people have argued on reformatio in peius in Administrative Appeal System. It is allowed generally or conditionalyly by the precedents and many Authors. In Japan it's forbidden (Administrative Appeal Law, Article 40, Paragraph 5 : Article 47, Paragraph 3).
(3) Administrative agency should attach reasons to its disposition in writting as a rule (German-Apl, Article 39). It's only natural to regard a disposition without reasons as illegal. Whtat should people consider a disposition with reasons which don't support its substantial legality? The precedents and many authors regard it as possible that administrative agency revise or exchange reasons in Administrative Appeal System and inferior administrative courts. This veiw has been explained before an enactment of APL.A significance of declaration of reasons seems to be reduced.
(4) I think that Administrative Appeal System in Germany can't be grasped under a category of pre-administrative-procedure and post-administrative-procedure. Two types of administrative-prcedure are distinguished cleary in Japan. And so it may be difficult to compare Japan-Law with Germany-Law. Anyway people may lose a part of significance of fore -regulating administrative process by APL in Germany. Less
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