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制度的保障論の再構成


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Title: 制度的保障論の再構成
Other Titles: Reconstitution of Institutional Guarantee Theories within the Constitution of Japan
Authors: 海野, 敦史
Authors (alternative): Umino, Atsushi
Issue Date: 30-Jun-2011
Publisher: 長崎大学経済学部 / Faculty of Economis, Nagasaki University
Citation: 長崎大学経済学部研究年報, 27, pp.57-105; 2011
Abstract: This paper attempts to“revive”and reconstitute traditional theories on institutional guarantee within the Constitution of Japan, which seem to have been“suffocated”with a number of academic criticisms. It would be reasonable to assume that these criticisms can be encapsulated by the following factors. First, the notion of“institution”is too vague to clarify the significance of the theories. Second, it is not easy to dispel the anxiety that accentuation of“institution”may impair the guarantee of constitutional rights. However, this paper assumes that theories on institutional security are still instructive in explaining and analyzing the structure of constitutional rights insofar as the constitution itself requests the legislature to assure certain institutional systems by establishing law. In accordance with a definition of institution (system) as an aggregation of legal norms, it would be fair to note that both institution and constitutional rights are not antagonistic but supplementary in the sense that some constitutional rights require a specific system founded by law to assure their legal benefits. In addition, care should be taken that the legal benefits of institutional guarantee can be found in the establishment and management of constitutional systems by the public power, not in the maintenance of a certain existing system itself. On this basis, this paper stresses the importance of the theories and provides a landscape on typology of institutional guarantee as well as some viewpoints on how they should be amended to overcome the suggested criticisms.
Keywords: institutional guarantee / Constitution of Japan / legal system / fundamental human rights / objective legal norm
URI: http://hdl.handle.net/10069/25411
ISSN: 09108602
Type: Departmental Bulletin Paper
Text Version: publisher
Appears in Collections:Volume 27

Citable URI : http://hdl.handle.net/10069/25411

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