1998 Fiscal Year Final Research Report Summary
A STUDY ON "CONCILIATION IN LAW SUITS"FROMA A CONSTITUTIONAL PERSPECTIVE
| Project/Area Number |
09620015
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
Public law
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| Research Institution | Kanazawa University |
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Principal Investigator |
SASADA Eiji Kanazawa University, Faculty of Law, Professor, 法学部, 教授 (20205876)
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| Project Period (FY) |
1997 – 1998
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| Keywords | judiciary / conciliation / procedural due process / access to courts |
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| Research Abstract |
For over the past decade, the judiciary has actively pursued the procedure of conciliation within law suits. This has had both favorable and unfavorable responses. The lavorable responses have been that it has reduced judicial expenses and that it has made possible remedies not capable of being reached by an actual court judgment. On the other hand, in large-scale law suits involvinq public power related concerns such as the Aids Case and Hinamata Disease Cases problems concerning pressure to pursue a judgment by law" are quite strong. Furthermore. issues concerning the limits in the role of judicial power and the increase at judicial discretion by the judge are said to be unfavorable if conciliatoin procedure is used since it may result in infringements in the partys procedural guarantees.
From the perspective of the judiciary as being "the fair decision-maker, " the following three c'onditions justify using conciliation procedures in the above-mentioned large-scale public law suits. They are : 1) The need for an urgent remedy ; 21 The court must give an detailed legal "opinion" ; 3) A guarantee of procedural due process.
The recent amendment to the code of Civil Procedure established reparatory proceedings for advocacy (xi 265). The aim of the amendment was to eliminate doubts about advocacy and judicial conciliation proceedings and to make clear the procedures involved.
The most important point to consider for the parties in the law suit is that the judge"involved collects the necessary information in a fair manner and that the information is properly disclosed. In order to accomplish this procedure, an important point will be to control the judges discretion based on Artilce 32 of the Constitution which guarantees "the right of access to courts." Unfortunately, research in this particular field is still insulficient. More research on Article 32 concerning the control of judicial discretion will need to be done in the future.
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