Reaktionen auf Corona aus öffentlich-rechtlicher Perspektive
Abstract
For a considerable period of time, Japanese public law responses to the Corona virus were characterized primarily by a special kind of voluntarism. Instead of issuing legally binding orders, authorities mainly worked with “requests for voluntary self-restraint” (自粛要請 jishuku yōsei), which were largely complied with by the population. The central legal basis for requests of this nature is the Act on Special Measures against New Influenza (hereinafter: Measures Act). Originally enacted in 2012, the Measures Act has been amended several times over the last decade and is now also applicable to Covid-19. The most significant provisions of the Measures Act are, first, the authorization allowing the prime minister to declare a state of emergency in the event of a severe spread of an infectious disease, and, second, the authority of prefectural governors to request the imposition of a curfew and restrictions limiting access to large facilities in order to prevent further spread. A striking feature of the latter requests had long been that a failure to comply did not result in legal sanctions, but on occasion in civil society disapproval. As reasons why (legal) sanctions did not previously arise in connection with such requests, the author identifies, on the one hand, the desire to avoid a – doubtful – obligation to pay compensation in the case of binding orders and, on the other hand, the – questionable – use of civil society pressure to conform as an alternative to legally binding orders.
Finally, in February 2021, the Measures Act was amended to provide not only for non-binding requests but now explicitly binding orders (命令 meirei) backed by sanctions as measures to combat Covid-19. A first lawsuit against measures based on these amendments has been filed by an affected restaurant chain.
