アメリカ行政法試論(二)  [in Japanese] An Introduction to American Administrative Law (2)  [in Japanese]

The third chapter deals with the birth and its development of administrative process in the United States. Basic character of it is fundamentally different from Continental administrative law such as the one in France or Germany that provided fundamental

The third chapter deals with the birth and its development of administrative process in the United States. Basic character of it is fundamentally different from Continental administrative law such as the one in France or Germany that provided fundamental theories of it to Japanese administrative law in the beginning. Administrative law in these countries has been formed through legal cases at special tribunals such as the Conseil d'Etat in France or, the Verwaltungsgericht in Germany, while in America through ordinary courts. What is American administrative law? How is it different from Continental administrative law? What American administrative law means? Readers who do have much knowledge of French or German administrative law may wonder like this. The present writer intended to point out basic character of American administrative law based on theoretical reasons and social factors in American society of the 19^<th> century, as the period in which the most exciting economical activity has been done. The fourth chapter indicates how administrative process has been considered as basic element in American administrative law, by several sections in this chapter such as the separation of powers, the constitutionality of delegation of powers, and the negative and affirmative sides of power delegation. This chapter also intended to show the limitation of administrative agency under the power of the President of the United States, paying careful attention to the meaning of legal phrases and words of Article 3 (the Freedom of Information Act) and Article 3A (the Privacy Act) of the Federal Administrative Procedure Act of 1946. In the relation with the separation of power theory, we should recognize the quite important role of administrative agency as the fourth power under the Constitution of the United States. It means that an administrative agency in America may use not only administrative power but also quisi-legislative and quisi-judicial powers. No country may recognize such a function to the administrative power. In Japan, where the Continental type of administrative law has prevailed before and after the War, American type administrative procedure act has been asked for being provided since the Federal Administrative Procedure Act was introduced by scholars. As the result of painful effort by conserned persons including citizens, the Administrative Procedure Act in Japan was provided in 1993. Though the Act has been recognized under the influence of American administrative procedure act, it sustains still basic character of Continental legal theories.