抗告訴訟における民事訴訟法上の原理・原則の修正 : 訴訟上の和解の許否をめぐる議論をもとに

Prior to World War II, Japan had adopted a dualistic judicial system. One was the judiciary, with jurisdiction coming from judicial powers, and the other was an administrative tribunal with jurisdiction lying with the executive. However, after World War II, the administrative tribunal was abolished under reforms instigated by the allied General Headquarters. As a result, Japan’s sole judicial system now deals not only with civil litigation but also with administrative litigation, and the latter is governed by the Administrative Case Litigation Act (ACLA).

There are only 46 articles in the ACLA, and accordingly it includes Article 7: “Any matters concerning administrative case litigation which are not provided for in this Act shall be governed by the precedent of civil actions”. Thus, it is interpreted that the rules of civil actions can be applied mutatis mutandis unless they are contrary to administrative litigation. To date, there has been little research on this Article 7. The aim of this study is to examine how and why the principles within the Civil Procedure Act have been revised, via a discussion on whether the settlement of a lawsuit is accepted under the ACLA. This idea is divided into two theories: the restrictive affirmation theory and the negation theory. They lead to the following results.

The restrictive affirmation theory accepts the settlement of a lawsuit in the following cases: when it falls within administrative discretion, when the facts are uncertain and the administrative agency expects a settlement, when a settlement is permitted as a public contract, when the administrative agency is competent, when the administration considers that benefits obtained by a settlement exceed costs about the duties of the official investigation, when it is proper that a court respects the compromise between the parties on account of high uncertainty, and when there is compromise between the parties and the court considers it legitimate.

The negation theory does not accept the settlement of a lawsuit for the following reasons: differences in administrative discretion and the disposal of the subject matter, the wrongdoing has the same effect as a final and conclusive judgment, the nature of the public interest of the administrative measure, the impossibility of ensuring the observance of settlement terms, the unilateral nature of the administrative measure, the fit between the law and the administrative deposition, and a lack of substitution authority regarding the settlement of the lawsuit. Furthermore, the reason that the administrative measure must be appropriate for a law may be against the rule of law―das Prinzip der gesetzmässigen Verwaltung.

Thus, it can be concluded in this study that the principle of the disposal of rights in the Civil Procedure Act is revised in the above cases under the restrictive affirmation theory and the negation theory.