공공시설에 관한 조례와 항고소송

Abstract

In 1996, the Supreme Court decided that the municipal ordinance of ceasing Doomil elementary school is an administrative disposition as an object of appeal litigation. This case has an important meaning as the first case for the Supreme Court to acknowledge the nature of disposition on the establishment of a municipal ordinance of district council, concerning a municipal ordinance on the establishment and management of public facilities such as public elementary school based on the section 144 of the Local Autonomy law. In 20 years after the case on ceasing the Doomil elementary school, this thesis would review ideology of the Local Autonomy law and its specialty and try to comprehensively reconsider whether the current system of appeal litigation is effective in a function perspective as a relief when the nature of disposition of a municipal ordinance is acknowledged. The court would acknowledge the nature of disposition as an object of appeal litigation since people catches and focuses on those points: i) the purpose for the Local Autonomy law’s providing that it establishes an municipal ordinance on the installation and management of public facilities is to materialize ideology of democratic control and resident autonomy (necessity of resident control); and ii) this municipal ordinance especially has a characteristic as a conduct of public opening and public closing. When it comes to the mode of litigation in formality, an appeal litigation could be a useful mode of litigation to solve a dispute in one-time, united and radical measure in a lawsuit against unspecified number of the general public like a litigation for an municipal ordinance of public facilities by a characteristic of an appeal litigation with the nature of action litigation and the system of an appeal litigation like an effect for a third party of a cancellation judgment and a suspension of execution. However, it still has those legal issues: i) whether the conduct of establishing an municipal ordinance could be a kind of exercising its authority by a local assembly in a relationship between an municipal ordinance and appeal litigation; and ii) whether the court would legally cancel an municipal ordinance in an validity lawsuit. What is more, it also has an rationality issues in a litigation system: it hardly fits a standard devices in the process of relives according to the system of appeal litigation like an exclusive jurisdiction of a revocation litigation, a statute of limitation, a judgment under circumstances, interest of right protection in a narrow sense and etc., and surrounding theories in an administrative laws such as an administrative procedure, administrative judgment, cancellation with an official authority and etc. Besides it practically prove that appeal litigation on a municipal ordinance could not function as a relief since there has been no cases to win in appeal litigation on a municipal ordinance in Japan including three cases of Japanese Supreme Court and tens of judgments of a trial by lower courts. In conclusion, it establish a direct system of supervisions on the norms as an object litigation to solve disputes like the Administrative Courts law in German as a suggestion of legislation on an municipal ordinance for a public facility and the conduct of establishing an municipal ordinance on the installation and management of a public facility could exceptionally be processed by a party litigation as a litigation for confirmation. However, tolerating mix and joint usage of an appeal litigation in an administrative lawsuit, and a party litigation and civil lawsuit could be the second best policy to execute theory of rule of law in a judiciary area. Thus, in a case on the municipal ordinance of ceasing Doomil elementary school, judging the nature of disposition by the standard of conclusive, legal regulation and approving only an appeal litigation could not be a rational, legal correspondence in a standard to judge the nature of disposition and a method to select a system of litigation.