COMPARATIVE RESEARCH ON SETTLEMENT OF CONFLICT WITHIN GOVERNMENTAL INSTITUTIONS

在本研究项目中，主要有两个主题：1)两个不同公共机构之间的冲突；2)同一公共机构的两个组织之间的冲突。在这段时间里，我把精力集中在第一个课题上，取得了一些重要成果，特别是研究了与日本历史上有密切关系的德国法律。在19世纪上半叶，德国普遍接受的理论认为地方政府是国家的附属机关，尽管有一些不同的理论承认地方政府有适当的自治权(自治)。在那个世纪的下半叶，主流学说采用了法律实证主义，否定了地方政府应有的、自然的权利。但是，在这一时期，权力下放的重要性得到了普遍承认，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，并遵循自治原则，允许地方政府起诉国家。这些结果表明，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该通过司法程序来解决，这与否认这一可能性的原则相反。

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.