Judicial Governance Through Resolution of Legal Disputes?—A Japanese Perspective

經由解決法律爭議的司法治理?--日本觀點

司法權最常引起討論的議題包括司法權的角色與司法權的範圍,日本行政訴訟的發展提供了一個反省上述問題的契機。在日本,行政訴訟總是強調要解決具體爭議,並嚴守行政處分與訴之利益等概念解釋。然而,這種態度似乎從2004年的行政事件訴訟法修正案開始有所變化,司法機關逐漸擴張行政訴訟類型,通常被稱為確認訴訟。至於訴之利益的概念,也透過修正案第九條第二項規定,逐漸朝較為彈性的方向解釋。作為新訴訟型態之一的委託訴訟也開始實行。司法權不但接受了立法者透過2004年修正案所明定的明示委託,也接收到立法者所釋放出保障人民權利的訊息。

The questions regarding the judicial power that are most often raised include the scope of the judicial power and the role of the judiciary. The development of administrative litigation in Japan provides a good way to reflect on these issues.Administrative litigation in Japan has always placed emphasis on resolving concrete legal disputes" and stuck to a strict interpretation of the concept such as administrative disposition" and standing. It has also centered upon ex post" review of administrative activities.This attitude seems to be changing since the 2004 amendment of the Administrative Case Litigation Act (ACLA). The judiciary is gradually widening the subject matter of administrative litigation, using so-called confirmation litigation." With respect to standing, it is moving towards a more flexible interpretation using the newly inserted Article 9, Paragraph 2, which was, ironically, drafted as a codification of existing case law. Mandating litigation," a new type of litigation introduced by the 2004 amendment, is coming into use. The judiciary has not only accepted the express mandate given by the legislator through the 2004 amendment, but also its general message for more effective relief and protection of rights and interests of citizens.