HLJ_42-3_158.pdf 366 KB
In the modern system of government, there are two principles. One is the principle of administration based on a law and the other is the democratic procedures. But these principles are under the rule of law which is fundamental principle of Anglo-Saxon’s law system and a law must suit law that shows the natural justice. Consequently, Principle of administration based on a law that has constituted administrative law in the Continent of Europe, Franco-German law system, is affected by due process of law being one of rule of law.
I would like to discuss in this study about a new movement in Japan’s administrative law, that is, the theory of administrative process : the people concerned in realizing the purpose of administration, an individual or a group as a resident, could participate in the process of each stage of the administration for example that administration draws up a plan, concretes provisions of a law providing generally and in the abstract, and etc.. This theory had come from Germany to Japan in the beginning of 1970’s and the academic world of public law (Constitutional law and Administrative law) have accepted it. Japanese constitutional law comes from American constitutional law, but Japanese administrative law has been from German administrative law. In Constitutional law, it has a article of due process of law (article 31 of Japanese constitutional law), but the legal relation between administration and the individual must be necessary to provide the article on notice and hearing. German and Japanese administrative law has been a substantive administrative law and it is a limit to guarantee of fundamental human rights. I try, so that, from due process of law in the rule of law to describe a adjective administrative law and to discuss the right of notice and hearing in realizing the purpose of administration as the right to participate in administrative process. In China, we have the theory of Balance in our administrative law, which redresses injustice between Administration and the individual or the group, I also compare a Chinese’s and Japanese’s about the guarantee of due process of law.