The constitutional relation between the public and the private and public legitimacy : The comparative research of Germany and Japan

在后冷战世界的全球化背景下，国家拥有主权、以议会制定的法律为基础发展社会的观念日益过时。在全球化背景下，国家与经济的融合，一个民族的性质发生了很大的变化。“国家”与“经济”、“国家”与“社会”、“公共”与“私人”之间的界限变得更加不确定。因此，在许多重要的公共职责中，决定国家的职责是什么，以及哪些职责可以留给私人组织或个人自决，这变得很重要。不用说，在现行宪法下，这本质上是立法者民主决策的问题。然而，首先，立法者对这样一个问题的决定的理由是什么？那么，宪法可以如何以及在多大程度上规范私人组织和个人呢？本研究参考了德国和日本关于“合法性”和“公共领域”的争论。然后，从国家公共合法性的角度，考察国家对处于国家与社会交界处的政党补贴的宪法可采性。

Under the globalization in the post Cold War world, the notion that a state has sovereignty and develops its society on the basis of the laws enacted by Parliament, has increasingly become outdated. And the fusion of the state and economy under the globalization, the nature of a nation has greatly changed. The boundaries between a "state" and "economy", a "state" and a "society", and the "public" and the "private" have become more uncertain. Therefore, it has become important to decide, among many important public duties, what the nation's duties are, and what can be left to the private organizations or to the individuals' self-determination. It goes without saying that, under the present constitution, this is essentially the problem of the democratic decision by the legislators. However, in the first place, what are the legislators' grounds for the justification of their decisions about such a problem? And, how and to what extent can the constitution regulate private organizations and individuals?This research paper takes into account the arguments on the "legitimacy" and the "public sphere" in Germany and Japan. Then the paper aims to examine, from the viewpoint of national public legitimacy, the constitutional admissibility of the state subsidy to the political party which can be located on the border between a state and a society.