The Legal Framework of Public Administration in Japan
| Author | Ichiro Ogawa |
| DOI | 10.1177/002085238204800203 |
| Date | 01 June 1982 |
| Published date | 01 June 1982 |
| Subject Matter | Articles |
The Legal Framework of
Public Administration in Japan
UDC : 35.073 : 342.4.071 (52)
by
Ichiro OGAWA,
Professor, Seikei University
1. CONSTITUTIONALISM AND THE
ter the law faithfully (Article 73, Item 1 of
PRINCIPLE OF ADMINISTRATION
the Constitution), and successive items of the
BY LAW
same article abolished the system of the inde-
pendent administrative order. In other words,
The system of the separation of powers was
orders issued by the administrative agencies
first introduced in Japan immediately following
under the present Constitution are limited to
the Meiji Restoration (1868); and the estab-
delegated orders based on laws or orders for
lishment of the constitutional system was
their execution.
No penal clauses nor any
marked by the Meiji Constitution (enacted in
provisions which impose obligations or restrict
1889 and enforced in 1890). Under the
the rights of individuals may be included in
Meiji Constitution, constitutional theories of
administrative orders unless authorized by law
Western countries were absorbed, and the
(Article 73, Item 6 of the Constitution, Article
basic principle of Japan’s administrative law,
11 of the Cabinet Law, and Article 12 of the
that is, an administration based on the law
National Government Organization Law).
and in compliance with the law, was estab-
This established the basis for the principle of
lished.
&dquo; administration by law &dquo;. Secondly, the Ad-
ministrative Court was abolished, and in its
However, under the Meiji Constitution, the
place, a system of judicial review by the
principles of the constitutional system had
ordinary courts was introduced. All legal
certain significant limitations. One such limit-
disputes, including administrative litigation,
ation was the system of the so-called inde-
were to be placed under the authority of the
pendent order of the executive. Under this
judicial courts (Article 3 of the Court Organ-
system, the Emperor and his administrative
ization Law). (The system of administrative
agencies could enact orders or regulations with-
litigation will be treated in a separate article).
out statutory authorization within a set range
of administrative authorities. The second
This does
was
not necessarily mean that all ad-
the imperfection of the administrative court
ministrative activities should be based on law.
system. The Meiji Constitution had provided
Although there are a number of theories on
the system of administrative jurisdictions,
this, the common view currently held is that
modeled on that of Continental Europe,
while those administrative activities which
par-
ticularly Germany and Austria, that is, the
restrict the individual’s rights or freedom
system of the separation of judicial and ad-
should be based on the provisions of statutes,
ministrative jurisdictions. Under this system,
those activities which contribute only towards
the
any dispute concerning administrative law
interest of the people or which are not
could not, in principle, be dealt with by the
directly related to the rights and obligations
ordinary judicial courts. In the meantime,
of
as
the individual should not necessarily be
its jurisdiction was limited to certain admin-
based on laws. The above-mentioned Article
istrative litigations enumerated by statute, the
11 of the Cabinet Law and Article 12 of the
Administrative Court could only control ad-
National Government Organization Law were
ministrative action to a limited degree. There-
enacted on the basis of such a common view.
fore, the area of administration which...
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