2003 Fiscal Year Final Research Report Summary
Comparative Study of Administrative Litigation in Japan, the United States and E.U.
| Project/Area Number |
14520030
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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 | Waseda University |
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Principal Investigator |
OHAMA Keikichi Waseda University, School of Political Science and Economics, Professor, 政治経済学部, 教授 (50203906)
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| Project Period (FY) |
2002 – 2003
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| Keywords | Administrative Litigation / Administrative Litigation Law / Kouteiryoku / rule of law / Principle of Administration by Law / Rechtsstaat / Principle of self-governing by will / constitutional monarchy |
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| Research Abstract |
The purpose of the study is to try to consider how the Administrative Litigation has been worked in advanced countries from the point of view of the comparative law. I have an awareness of the problem that the basic theory of the Administrative Litigation Law of 1962 is inappropriate to the present Constitution. In other words, the present Administrative Litigation Law has based upon the theory proper to constitutional monarchy of Meiji Constitution. I think we should change the old theory into more democratic one that reflects the present Constitution that bases on the people sovereignty and fundamental human rights.
This forces us to reconsider the basic theory that consists of "Rechtsstaat" or "Statutory Dominance." On the other hand, I insist "The Principle of Administration by Law." This principle materialize "rule of law" that is the principle of the Constitution of Japan. It includes non-delegation doctrine, substantive due process of law, procedural due process of law and judicial remedies.
I insist and demonstrate that "kouteiryoku" theory is the remnant of constitutional monarchy and we should deny it as not only interpretation but legislative policy. Accordingly, (1)the nature of action for nullification ("torikeshi soshou") is to confirm the illegal of its disposition, not to break the "kouteiryoku". (2)The public policy is realized by an administrative law under the principle of rule of law. (3)Administrative litigation should be recomposed as the suit directly to contend the illegality of the disposition concerned.
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Research Products
(8 results)
