アメリカ行政法試論(三)  [in Japanese] An Introduction to American Administrative Law (3)  [in Japanese]

The third chapter deals with a legal right for judicial review of an administrative disposition. In addition the fourth chapter is devoted to introduce the formation of administrative process by discussing separation of powers, empowering to administrativ

The third chapter deals with a legal right for judicial review of an administrative disposition. In addition the fourth chapter is devoted to introduce the formation of administrative process by discussing separation of powers, empowering to administrative division and constitutionality of empowering, and negative-affirmative sides of the empowering principle. The fifth chapter consisting of judicial and administrative remedies discussed the rule of law principle and the possible judicial remedy against mal-administrative disposition. It means how the rule of law principle is to relate to judicial remedy at a court. While, in Anglo American law countries such as the United States and the Great Britain, a law suit asking for administrative remedy is dealt with at an ordinary court, in continental law countries such as France, Germany, Italy and Japan being under the strong influence of legal systems in these countries, a law suit asking for administrative remedy has been traditionally dealt with at a special court which is free from the control by the ordinary court system. The rule of law principle in these countries has been respected in some aspect, while in Anglo-American law countries the rule of law principle prevailed in every corner of the court system. It means that every court case has been decided under a final review by the Supreme Court as an application of the due process principle in Anglo-American law countries. On the other hand, a decision at a special court was left free from a jurisdiction of the ordinary court system as a final review in continental law countries. Such an administrative court limits its jurisdiction to merely legal problems relating to a disposition by the government branch and to public affairs, while a civil court deals with other private matters. Jurisdiction of each court is entirely independent in continental law countries. We may call it a dual court system because of having an administrative court in addition to a civil court within a court system. In Anglo-American law countries, no administrative court exists. Cases relating to government actions or decision of public affairs are to be accepted in an ordinary court there. Japan, however, abandoned such a continental dual judicial system and adopted the Anglo-American judicial system after the War. No special court such as an administrative court, an imperial court and a military court, which existed before the War, can be seen any more under the new Constitution of Japan of 1947. While accumulation of administrative court cases and its theoretical development have fostered administrative law in France and Germany, accumulation of administrative cases handed down at ordinary courts and their theoretical developments do not necessarily make the Anglo-American administrative law. In Anglo-American law countries, decision process of cases at an administrative agency has played important role in forming administrative law. From this point, the present writer introduces such an establishing process of American administrative law by discussing various aspects of the decisions by an administrative agency. In the process for making administrative law in America, the power of judicial review is a key legal issue. In this process, we may say that a comparison of judicial remedy and administrative one indicates us the advantage of the latter, because of low cost, less time, keeping privacy, and some others. It means that an informal process of administrative remedy at an administrative agency is considered more appropriate solution for citizens than solution through a formal process at a judicial court. Judicial remedy, however, should be understood as the last resort for legal remedies, in which a plaintiff is to show his legal interest for protecting his interest at a court. From this point, standing to sue issue is quite important issue for it is a key to open the gate to judicial review at a court. The Supreme Court, however, sometimes discussed the merits without deciding standing problem, when the judges of the Court think appropriate it without mentioning the reason for it. Or the judges deny standing of plaintiff and support substantially what the things are going on...