「行政権の主体」と「財産権の主体」との交錯関係と司法的執行--宝塚市パチンコ店規制条例事件の判例を手がかりとして

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This paper attempts to examine the interwoven relationship between the entity of administrative power and the entity of property rights within administrative bodies in Japan and to delimit the range of circumstances in which administrative bodies are allowed to bring to a civil suit if a person with some administrative obligations does not comply with them and thereby violates the law. According to a judicial precedent adjudicated in July 2002,national or local governments are, in principle, not allowed to bring a civil suit for the purpose of forcing such a person to implement administrative obligations exclusively as an entity of administrative power without any legal provisions to permit it, apart from the case where they attempt to protect their own legal rights or benefits as an entity of property rights. While there are a number of measures associated with payment obligations in which administrative compulsory collection is allowed under law, this is not the case when it comes to such matters as the collection of the rent for public housing. Nevertheless, some laws allow administrative bodies to rely on court enforcement in these cases, which appears, at first glance, contradictory to the idea of the aforementioned judicial precedent. This is mainly because these measures are fundamentally based on a contract for utilization of public facilities, where both administrative bodies and the general public stand in an equivalent position to allow the bodies to be an entity of property rights. If these measures were implemented as an exercise of public power by administrative bodies, it would not be possible for the bodies to have recourse to court enforcement according to the idea shown in the judicial precedent.

「行政権の主体」と「財産権の主体」との交錯関係と司法的執行--宝塚市パチンコ店規制条例事件の判例を手がかりとして

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