Neuere Entwicklungen der japanischen Rechtsprechung zum Verwaltungsermessen

Kritische Überlegungen zum „fachlich-technischen Ermessen“

Abstract

The notion of “professional-technical discretion” was developed in both academic literature and case law after World War II as a category of administrative discretion. However, there was also criticism of such an abstract concept because it could give administrative authorities a very wide margin of discretion. In this context, it is noteworthy that in recent years the Japanese Supreme Court has developed new criteria for professional-technical discretion: in its recent opinions the Supreme Court has expressed its dissatisfaction with administrative rulings that simply announce the technical nature of a decision and generally call for broad discretion; the Court has instead asked for specific reasons why the administration is to be granted such discretion in the individual case at hand.

This paper gives an overview of the relevant court decisions and considers how these developments should be evaluated. In doing so, it makes sense to refer to the German doctrine of discretion as a basis for comparison, as the constitutional right to legal remedies in the German Constitution (Grundgesetz) (Article 19 paragraph 4 sentence 1) does not allow for an extensive scope of administrative discretion similar to “professional-technical discretion”. By contrast, Japanese law has not developed a strict rule on the existence of discretion because academic treatment in the fields of administrative law and constitutional law occurs in an isolated and unintegrated manner. As, however, the Japanese Constitution is not silent on the scope and intensity of judicial review, the doctrine of administrative discretion should take constitutional requirements into consideration, and the admission of discretion should be structured in accordance with constitutional standards. Although not discussed in court decisions, it seems apparent that the recent line of court rulings in Japan is required also from a constitutional perspective.

(The Editors)