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🏛 | Science Council Appointment 6 people to see off Constitutional scholars against the security law


Photo Takaaki Kajita, New Chairman of the Science Council of Japan, answering reporters' questions about the issue of appointing new member candidates = Minato-ku, Tokyo on the afternoon of the 1st

6 people to see off the appointment of the Science Council Constitutional scholars who oppose the security law

 
If you write the contents roughly
According to the people concerned, the six are Takaaki Matsumiya, Professor of Ritsumeikan University (Criminal Law), Ryuichi Ozawa, Professor of Jikei University School of Medicine (Constitutional Science), Masanori Okada, Professor of Waseda University (Administrative Law), Shigenori Uno, Professor of Tokyo University (Political Science), Kato. Yoko Tokyo University Professor (History) and others.
 

Prime Minister Yoshihide Suga has appointed some of the new member candidates recommended by the Science Council of Japan, a national special institution that represents Japanese scientists ... → Continue reading

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Ryuichi Ozawa Professor, Jikei University School of Medicine

Administrative law

Administrative lawWhat is (Gyoseiho)?AdministrationIt is a law that disciplines specific activities differently from the relationships between private individuals.[1].

Overview

Administrative law means "law concerning administration" or "law specially specific to administration"[2]..The administrative law is "Civil law"Or"Commercial lawIt does not mean that there is a single code like ", but it is a general term for laws related to administration.[2].

About the definition of administrationAdministration #definitionreference.

Administration and law

The idea of ​​administration was originally unrelated to the law[3]..治山・治水・都市造成など政策の実施は国家の成立とともに行われてきたもので法律の根拠が必要とされていたわけではないThe implementation of policies such as mountain restoration, hydraulic engineering, and urban development has been carried out with the establishment of the nation, and the basis of the law was not required.[3]..近代以前の行政は法が支配しているわけではなく、人の支配による専断的な政治が行われており、封建領主や専制君主は一方的に行政を執行していたPre-modern administration was not governed by law, but was dominated by humans, and feudal lords and tyranny were unilaterally executing administration.[3].

Legalism(Hochishugi) refers to the principle that "every social activity of a nation must obey the law."したがって、行政における法治主義(法治行政の原理(ほうちぎょうせいのげんり))は、行政活動は、その担当者の恣意や行政部外者からの圧迫(暴行や脅迫等を含む)によってではなく、客観的な法に従って行わなければならないという一種の規範的要請を意味するTherefore, the rule of law in the administration (the principle of the rule of law) is that administrative activities are not based on the arbitrariness of the person in charge or pressure from outsiders (including assault and threats). Means a kind of normative request that must be made in accordance with objective law[4].

The principle of the rule of law isGermanyDeveloped in civil law countries centered on[5]..法治行政の原理でいう「法」は立法府の制定する法律を意味し、法律によって行政の恣意や専断を防ぐという趣旨に基づく"Law" in the principle of law-abiding administration means the law enacted by the legislature, and is based on the purpose of preventing the arbitrariness and discretion of the administration by law.[5]..The principle of administrative administration by law consists of the following three principles.

  • Legal creativity of law
    Only the law enacted by the Diet can create a law that is a discipline regarding the rights and obligations of the people.
  • Legal advantage
    If there is a law, administrative action must not violate the law.
  • Reservation of law
    There must be a legal basis for certain administrative actions.

On the other hand, in Anglo-Saxon Anglo-American law countriesRule of lawAlthough the principle of law has been developed, the "law" in the rule of law emphasizes the case law, and the case law controls the legislative and administrative powers and emphasizes the guarantee of proper procedures.[5].

Characteristics of administrative law

Roman lawSince then, the law has been divided into private law and public law, and administrative law has been considered to belong to public law.[6]..国などの行政主体が私人に公権力を行使する権力関係は、私人間の利益の調整と配分を目的とする私法とは全く異質のもので公法的な色彩が最も顕著に表れるThe relationship of power in which the government or other administrative entity exercises public power over private individuals is completely different from private law, which aims to adjust and distribute the interests of private individuals, and the colors of public law are most prominent.[6]..また、非権力手段によって行政作用が行われる非権力関係においても、それが公益の目的を持つ限り私法の適用は排除または修正されると考えられているIt is also believed that the application of private law will be excluded or amended as long as it has the purpose of the public interest, even in non-power relations where administrative action is carried out by non-power means.[6].

on the other hand,Anglo-American lawThen.Common lawUnder the (common law), it is in a general legal status that is commonly applied regardless of whether it is an administrative entity such as a country or a private person.[6]

Administrative law

Administrative law(Gyosei direction)Is a discipline that studies the legal discipline of administrative activities such as administrative law.Historically, it was based on the idea of ​​legally restricting the exercise of administrative power.

Traditional administrative law describes the characteristics of administrative law as "coordination of interests between private individuals from the perspective of public interest protection ("Private law), And to allow the exercise of public authority to achieve that purpose. "[7], The contents of modern administrative law are not limited to such public interest priority and public authority, but procedures and explanations for administrative activities (administrative procedure law, information disclosure system), relief for special burdens associated with administrative activities (administration) Relief Act),social welfareImprovement (social security administration), coordination of interests between private rights (Writing worldIt extends to fields such as specific systems)[8]

History of administrative law

The birthplace of modern administrative law isFranceIs.フランスなど大陸諸国のOf continental countries such as FrancePolice stateThen,Absolute monarchyUnderBureaucracyとStanding armyThe monarch exercised a mighty public power without being bound by the law and united the nation.例外として財産取引の主体として経済取引に関与する場合は一般市民と同じAs an exception, if you are involved in economic transactions as the subject of property transactions, it is the same as the general public.Private lawI was wearing clothes.

Eventually, the economic rise of the civil class will increase the opposition to the monarch's unlimited exercise of executive branch.They recognized the need to regulate administrative activities by law,French RevolutionSuch asCivil revolutionAfter that, he tried to bind the administrative authority by the law enacted by the parliament elected by the citizens.

Since it started from trying to restrict the administrative authority of the monarch, which was regarded as omnipotent in this way, the administrative law of the continent formed its own legal system = administrative law that presupposes superiority over the people of the administration. It was.

And for the independence and advocacy of the administration, apart from the usual justizpalast,Administrative courtWas created inside the administration.Conseil d'EtaThe various theories of administrative law have been developed by the jurisdiction that has accumulated administrative jurisdiction at the top and the efforts of theories to systematize it.Such administrative courts will spread to other continental countries and later affect the judicial system in other regions such as Japan.そして、この特別な裁判所の存在が公法と私法を分ける根拠にもなったAnd the existence of this special court was also the basis for separating public law and private law.[9].

However,The United States of America,United KingdomIncludingCommon lawIn legal countries, the situation is slightly different.イギリスでは、行政組織が発達する以前からコモン・ローが権威を獲得しており、行政が行動する際に用いるのは、特例を定めるIn the United Kingdom, the common law has gained authority even before the development of the administrative organization, and the government uses special cases when acting.StatuteUnless there is a common law procedure, there is no legal system specific to administrative action.[10].

Meiji RestorationLater, Japan also referred to the administrative law of France when creating its own code, but the early administrative law was incomplete. Imperial Japanese ConstitutionIs separate from the justizpalastAdministrative court(Article 61), this administrative court dealt with disputes caused by the invocation of public authority based on its own theory (public law principle) different from private law.However, ordinary judicial courts were in charge of transactions conducted by the administration in the same position as private individuals.Second World Warrear,The Constitution of JapanAbolishes the administrative court, and the judicial court also has jurisdiction over disputes between the administration and the people.[11].

Administrative law in Japanese law

Source of administrative law

Of administrative lawSource of law..法源は複数存在し、以下のような法が挙げられるThere are multiple sources of law, including the following:[12].

Grammar
Administrative lawStatutory lawIs taken.This guarantees the predictability of the people,lawAnd by following the law based on its delegationNational democratic rightAnother reason why statutory law is required is that administrative management is complicated and specialized.
Constitution
The part of the Constitution that defines the administration is the source of administrative law, and the administration cannot violate it.
law
All national legislation relating to the rights and obligations of the people is "the only legislative body of the country".国会It must be stipulated by the law stipulated by (Article 41 of the Constitution of Japan).This is called "Law monopolizes legal creativity".
command
A law that establishes administrative authority against the statutory law (law) of the Diet.Cabinet Order-Cabinet Office Ordinance-Ministerial Ordinance-RuleSuch.Government agencies can only enact orders if required by law.行政法の法源となりうる命令には、法律執行に必要な細則を定めるFor orders that can be the source of administrative law, the detailed rules necessary for law enforcement are stipulated.Execution order, Complement the content of the law based on the individual specific delegation of the lawDelegation orderThere is.
Treaty
The Constitution of Japan requires "honest compliance" with international laws (Article 98, Paragraph 2), and when promulgated, it will be converted to domestic law, and there will be specific provisions that are self-sustaining and enforceable regarding domestic administration. If so, it becomes the source of administrative law.ApproveThe treaty is formally superior to the law.
Ordinance
Local governmentA statutory provision voluntarily enacted by the parliament.It is based on Article 94 of the Constitution.
Rule
Local governmentRegulations enacted by the chief of the government.It can be established in the office work within the scope of the authority of the chief.Many have stipulated the detailed regulations of the ordinance.
unwritten law
It fills in the blanks in the statutory law and complements the interpretation.
Customary law
With legal conviction, I came to believe in legal rulesCustom..There is little room for enactment under administrative law.認められる場合も法的確信(正義感)が根拠となる必要があり、違法な慣習は慣習法とはなりえないEven if it is accepted, legal conviction (sense of justice) must be the basis, and illegal customs cannot be customary law.
"Local popular customary law"
Customary law established and established among the people.Water rightSuch.The government needs to respect these practices.
"Administrative precedent law"
The precedent set by the government is believed to be the law among people.Official gazettePromulgation of the law by (as of 2014, there is no positive law basis that the law is promulgated by the official bulletin, but it is approved by customary law, and judicial precedents also allow this.[13].. ).
Case law
Judgment with the same content is repeated and approved as a law.
Organized
General principles of law.Principles that are generally accepted as universal principles that are justice, although they may not have a nominal basis.Equality-Proportional principle-Estoppel principle-Good faith·Such.The government needs to adhere to these principles.

Incidentally,Instruction-NoticeFormally, it is nothing more than a norm (administrative rule) within an administrative organization and cannot be the source of administrative law.しかし、実務の上では必要性が高く大きな影響力を持っているため、現代行政を「法律による行政」ならぬ「通達による行政」と揶揄することもあるHowever, since it is highly necessary and has a great influence in practice, modern administration may be ridiculed as "administration by notification" instead of "administration by law".[14].

Classification of administrative law

Administrative Organization Law

Law concerning administrative entities.National Administrative Organization Law,Cabinet Act,Local government law,National Civil Service Law,Local Civil Service ActAnd so on[15].

Administrative action law

Law on administrative action.Administrative Execution Law,Police Officer Execution Law,Land acquisition law,Finance Law,Accounting method,National Tax Law,National tax collection law,Administrative procedure lawAnd so on[15].

Administrative Relief Act

Law on administrative relief.National compensation law,Administrative Appeal Law,Administrative case lawAnd so on[15].

Administrative law in Anglo-American law

In Anglo-American law, a division of law that controls the administrative activities of the government is called administrative law.[16].

In the Anglo-American law, the common law had acquired authority before the enactment of the administrative law, so there is a debate about the characteristics of the administrative law and what kind of activities the administration deserves to be disciplined with such characteristics.Continental lawNot as important as in the system.例えば、あるアメリカ行政法の教科書For example, a textbook on American administrative law[17]Begins with the question of what authority can be given to the administration, not from the definition of administration or administrative law.

The administrative law under Anglo-American law consists of three areas: the law concerning the authority given to the administrative agency, the law concerning the requirements imposed on the exercise of the authority of the administrative agency, and the law concerning the relief against illegal administrative activities.[16].

footnote

[How to use footnotes]

Source

  1. ^ Yoshikazu Shibaike, "General Lecture on Administrative Law, 4th Edition", pp. 2-3, 8 (Yuhikaku, Tokyo, 2001), by Jean Rivero, translated by Kaneko = Isobe = Kobayakawa, "French Administrative Law", pp. 20-21 (University of Tokyo Press, Tokyo, 1982)
  2. ^ a b Hiromasa Minami, "Administrative Law, 6th Edition, Revised Edition," Yuhikaku Publishing Co., Ltd., 2012, p. 2. 
  3. ^ a b c Hiromasa Minami, "Administrative Law, 6th Edition, Revised Edition," Yuhikaku Publishing Co., Ltd., 2012, p. 9. 
  4. ^ Shibaike General Remarks, 2001, p. 38
  5. ^ a b c Hiromasa Minami, "Administrative Law, 6th Edition, Revised Edition," Yuhikaku Publishing Co., Ltd., 2012, p. 12. 
  6. ^ a b c d Hiromasa Minami, "Administrative Law, 6th Edition, Revised Edition," Yuhikaku Publishing Co., Ltd., 2012, p. 3. 
  7. ^ Shibaike general remarks, page 6, above, Rivero, pages 9-14
  8. ^ Shibaike General Remarks, 2001, pp. 7, 26, Rivero, pp. 29-XNUMX
  9. ^ Naohiko Harada "Administrative Law Essentials" (Gakuyo Shobo, October 1976) 10th Edition, 7nd Edition, pp. 19-21
  10. ^ Preface to the Japanese version of Rivero, p. 17
  11. ^ Harada, supra, p. 2012, 20
  12. ^ Harada, supra, pp. 28-36
  13. ^ Supreme Court December 32, 12 Criminal casebookVol. 11, No. 14, p. 3461.
  14. ^ Harada, supra, pp. 37-40
  15. ^ a b c Tsutomu Muroi, "Introduction to the New Modern Administrative Law," Law Culture, 2005, p. 13. 
  16. ^ a b Tsutomu Muroi, "Introduction to the New Modern Administrative Law," Law Culture, 2005, p. 17. 
  17. ^ Gerhorn-Levin, Ohama-Translated by Tsuneoka, "Contemporary American Administrative Law" (Kiyokusha, Tokyo, 1996)

References

In addition to those quoted in the text

外部 リンク


 

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