日本 機關訴訟의 새로운 類型

Abstract

Although Japanese agency litigation adopts constructive principle like us, there's no room for the regulation in clause 4 in article 3 of our administrative litigation act to be adapted because they don't have system like our judgment on competence dispute. Therefore it can be said it's a big difference in that they target not only the disputes between institutions in same local autonomous entities but also the disputes of other administrative subjects. Especially the litigation of imperative duty performance about delegation affairs recognized as representing agency litigation in Japan was eliminated together with delegation affairs in local autonomical act revised in 1999. But with almost identical contents, the new litigation that the state files (hereunder call litigation for the execution by proxy) is established against management, performance of constructive affairs. And recently the new dispute resolution system between local autonomous entities and state, due to decentralization of power, is legislated in which included litigation from local autonomous entity against the control of the state, and this is also acknowledged as agency litigation. First, litigation for the execution by proxy, recognized in Japan as typical example of agency litigation in the past, and with general similarity with litigation of imperative duty performance about delegation affairs, means measures that minister of state organ (state governors) takes legal proceedings against local governors (or head of local autonomous entity) to secure effective superior offices' authority. Similar with our litigation of imperative duty performance, these litigation for the execution by proxy has meaning in that it does not infringe autonomy and independence of the local autonomous entity because state or superior local autonomous entity do not exercise control over local autonomous entity, but manage by judgment of court under certain conditions. Secondly, it means litigation that, although in case that local autonomous entity has different opinion against control of the state, they can ask judgment of the third institution, National/Regional Dispute Resolution Committee, nevertheless, in case National/Regional Dispute Resolution Committee does not provide satisfactory results, the local autonomy entity who requested judgment can take legal proceedings against state's administrative office as defendant for rescission of high court's control or confirm of unlawfulness of forbearance. This litigation can be said a as measure to protect local autonomous entity's right of self-government which local autonomous entity can file against control of the state. Especially the litigation against control of the state is found its meaning in that it has solved the dispute between doctrines of whether to handle the dispute between state and local autonomous entity as issue of law caused by control of state