2004 Fiscal Year Final Research Report Summary
COMPARATIVE RESEARCH ON SETTLEMENT OF CONFLICT WITHIN GOVERNMENTAL INSTITUTIONS
| Project/Area Number |
13620018
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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 | HOKKAIDO UNIVERSITY |
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Principal Investigator |
MURAKAMI Hiroaki Hokkaido Univ., School of Law, Prof., 大学院・法学研究科, 教授 (20210015)
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| Project Period (FY) |
2001 – 2004
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| Keywords | judicial power / local government / cases and controversies / German law |
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| Research Abstract |
In this research project, there is two main subjects : 1)conflict between two deferent public bodies and 2)conflict between two organizations of one public body. In the above period, I have focused my effort on the first subject and got some important results.
I have especially studied the German law, which has historically close relation with Japan. In the first half of the 19^<th> century, the commonly accepted theory in Germany estimated local governments as subordinate organs of the State, although there were some different theories, which recognized them proper right to govern themselves (self-government). In the second half of that century, the main stream of doctrine has adopted legal positivism and rejected proper and natural right of local governments. But, in that period, the importance of decentralization was generally admitted and the right of self-government has been increasingly acknowledged. After the Second World War, the German law has introduced a general clause system of administrative litigation and, following the doctrine of self-government, admitted local governments to sue the State.
These results suggest that, in Japan, where local autonomy is strongly guaranteed by the Constitution, conflicts between local government and the State should be resolved in judicial process, contrary to the doctrine which denies this possibility.
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