COMPARATIVE RESEARCH ON SETTLEMENT OF CONFLICT WITHIN GOVERNMENTAL INSTITUTIONS

本研究的主题主要有两个：1）两个不同的公共机构之间的冲突和2）同一个公共机构的两个组织之间的冲突。在此期间，我主要致力于第一个课题的研究，并取得了一些重要成果，特别是对与日本有着密切历史关系的德国法进行了研究。在19^世纪上半叶<th>，德国普遍接受的理论将地方政府视为国家的附属机关，尽管也有一些不同的理论，承认它们有适当的自治权（自治）。世纪后半叶，主流学说采取了法律的实证主义，否定了地方政府的正当权利和自然权利。但是，在这一时期，权力下放的重要性得到普遍承认，自治权也日益得到承认。第二次世界大战后，德国法律引入了行政诉讼的一般条款制度，并遵循自治主义原则，允许地方政府起诉国家，这一结果表明，在地方自治受到宪法有力保障的日本，地方政府与国家之间的冲突应通过司法程序解决，而不是否定这种可能性的学说。

In this research project, there is two main subjects : 1)conflict between two deferent public bodies and 2)conflict between two organizations of one public body. In the above period, I have focused my effort on the first subject and got some important results.I have especially studied the German law, which has historically close relation with Japan. In the first half of the 19^<th> century, the commonly accepted theory in Germany estimated local governments as subordinate organs of the State, although there were some different theories, which recognized them proper right to govern themselves (self-government). In the second half of that century, the main stream of doctrine has adopted legal positivism and rejected proper and natural right of local governments. But, in that period, the importance of decentralization was generally admitted and the right of self-government has been increasingly acknowledged. After the Second World War, the German law has introduced a general clause system of administrative litigation and, following the doctrine of self-government, admitted local governments to sue the State.These results suggest that, in Japan, where local autonomy is strongly guaranteed by the Constitution, conflicts between local government and the State should be resolved in judicial process, contrary to the doctrine which denies this possibility.