2007 Fiscal Year Final Research Report Summary
Positive and Integrated Research on "Temporary Orders (Kari-no-kyusai)" as an Effective Remedy for a Violation of a Right and/or Interest20205876
| Project/Area Number |
17330004
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| Research Category |
Grant-in-Aid for Scientific Research (B)
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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 |
SASADA Eiji Hokkaido University, Grad. School of Law., Professor (20205876)
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| Co-Investigator(Kenkyū-buntansha) |
WATARI Tadasu HOKKAIDO University, Grad. School of Law., Professor (30125695)
OONUKI Hiroyuki CHUO University, Law School., Professor (10169021)
MURAKAMI Hiroaki HOKKAIDO University, Grad. School of Law., Professor (20210015)
AKASAKA Msahiro KOBE University, Grad. School of Law., Professor (80167816)
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| Project Period (FY) |
2005 – 2007
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| Keywords | Prime Minister's veto power / fair procedure / saiban / temporary order / Kari-no-gimuzuke / stay of an executive dispositon |
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| Research Abstract |
The term "saiban" used in Article 32 of the Japanese Constitution and "saiban" used in Article 82 are interpreted by the Supreme Court as having the same meaning. However, the former should be interpreted as having a broader meaning than the latter. If a judge that is neutral and independent of other powers is to preside over trials under fair procedures, then this should be considered a judicial function. It is to be understood that within the core of fair procedure entails, notice and hearing, and equality.
If a stay of an executive disposition is considered a judicial function, then the Prime Minister's veto power violates this judicial function, and furthermore, violates the right of access to the courts. One interpretation suggests that this system in accordance with the constitution. This position states that the system is needed to correspond to possible "emergency situations" that the Prime Minister may face. However, it is difficult to imagine a case that would require a stay of an executive disposition in a state of emergency. This position cannot be a basis for the constitutionality of the Prime Minister's veto power. If the Prime Minister's veto power is abolished, it is possible to inspect "Information Concerning National Security (Information Disclosure Law, Article 5, No 3)" through an administrative litigation procedure referred to as "Kari-no-gimuzuke (Administrative Litigation Law Article 37, para. 5, No. 1)" which requires the disclosure of information. Many may think that this procedure may not be acceptable. Others may think that this procedure may exist only in the instance of the above-mentioned case. However, even in this case, unconstitutionality of the system still exists. One possible way in the above case, then, is to allow an immediate appeal (sokuji kokoku) of a stay of an executive disposition using the "Kari-no gimuzuke" determination.
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