東アジアにおける比較行政法の可能性

서지정보

· 발행기관 : 전북대학교 동북아법연구소
· 수록지 정보 : 동북아법연구 / 5권 / 3호 / 1 ~ 29페이지
· 저자명 : 고다마 시게루

초록

Comparative administrative law has not been a major subject in traditional comparative law. But now we can find the interests in comparative administrative law among administrative law scholars in United State. The book of Comparative Administrative Law edited by Susan Rose‐Ackerman and Peter L.Lindseth was published in 2010. Some scholars like Professor John Ohnesorge(Wisconsin University) and Professor Tom Ginsburg (Chicago University) are studying administrative law of Japan, Korea and China. USAID is giving legal assistance of administrative law to China.
Among them, the approach by Tom Ginsburg is very interesting because his object is not to compare Asian administrative law with American and European administrative law, but one Asian administrative law with another Asian administrative law. He tried the comparison between Japanese administrative procedure law (enacted in 1993) and Korean one (in 1996). He concluded that Korean administrative procedure law brought about the reform because it provided for the mechanism where the court can discipline the bureaucracy.
On the contrary, Japanese administrative law preserved status quo. So it did not change the Japanese administrative law and administrative system. He pointed out the party system and political situation as the cause of such divergence with reference to principal‐agent theory.
As Professor Tom Ginsburg emphasized, Japanese administrative reform did not contribute to make stronger external control by the courts to the bureaucracy as Korean administrative law reform did. But we can call it another type of reform, not simple preservation of status quo. It aimed at a change of internal relation within the relationship of the politics – the bureaucracy and self‐control within the bureaucracy.
Anyway we admitted the divergence between the almost same systems at starting points.

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