2005 Fiscal Year Final Research Report Summary
A Comprehensive Study on the Process of Injunction in the Administrative Litigation
| Project/Area Number |
16530025
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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 | Nanzan University |
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Principal Investigator |
OKADA Masanori Nanzan University, Graduate School of Law, Professor (40203997)
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| Project Period (FY) |
2004 – 2005
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| Keywords | injunction / administrative litigation / prevention of noise / suit for general performance / revised administrative litigation law / public power / civil process and administrative process / suit for prohibition |
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| Research Abstract |
(1) On the injunction system in the Japanese administrative litigation law I have published an article "Procedural Provisions in the Revised Administrative Litigation Law and the Right of Access to the Courts" (in THE HOURITSU JIHOU vol. 77 No. 3, 2005). And then my study focused on the concept of exercise of public power, which Japanese courts apply in order to exclude injunctions of civil procedure.
(2) On the concept of "exercise of public power", I analyzed firstly its historical basis. Articles on this theme are "Tort Liability of the State in the Establishing Era of the Meiji Constitutional System: State Immunity Discipline and the Concept of Public Power(1)-(5)" (in NANZAN LAW REVIEW from vol. 28, No. 4 to vol. 31 No. 3, 2005-7). I gave already a lecture about an outline of these articles were already in a symposium of the Japan Democratic Scientist Society (Division of Law) and summary of this lecture is the article in the journal of this academic society "Science in Law" No. 37
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. Secondly I examined the concepts of "GYOUSEI-SHOBUN" and "GYOUSEI-KOUI". Both of them mean "administrative action", which is a typical example of "exercise of public power". As a result of my study, I explicated the difference of historical origin of these concepts (former meant originally "administrative measure") and a cause of today's theoretical confusion, which is brought by identifying these two. In other words, because of this confusion Japanese courts deny a series of action for prevention against plane noise, for no other reason than that an action of this kind neither civil nor administrative action.
(3) An article on the injunction system in German law will be also appeared in 2006. I examine in this article into the cases and litigation systems of mandamus proceeding or injunction to permitted establishments or facilities, which should pass the criteria in environmental and town planning acts, to non-permitted, which are exempted from regulatory provisions, and to military installations. On the basis of suggestions of these litigation systems, I will propose theoretical and institutional ideas on procedure, object of suit, and effects of judicial decision : I have pointed out a part of these ideas in the Dokkyo International Forum 2005.
In addition to these studies from a viewpoint of comparative law, I prepare a Japanese version of H.-J. KOCH (ed.), "UMWELTRECHT" (2002, Luchterhand), which will be published in 2008.
(4) In relation to this study theme I have reviewed decisions of courts. Results of this review are reports in THE HOUGAKU SEMINAR since April 2004. Less
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