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法的擬制としての「最終的決定権」: 学校教育法における大学学長の権限規定の法解釈問題の検討を通じて

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Please use this identifier to cite or link to this item:http://doi.org/10.14943/J.HighEdu.25.23

Title: 法的擬制としての「最終的決定権」: 学校教育法における大学学長の権限規定の法解釈問題の検討を通じて
Other Titles: “The Ultimate Decision-Making Authority” as a Fiction of Law : Study of the Problem of Legal Interpretation Concerning the Regulation of the Power of the University President in the School Education Law
Authors: 小林, 建一1 Browse this author
Authors(alt): Kobayashi, Kenichi1
Issue Date: May-2018
Publisher: 北海道大学高等教育推進機構
Journal Title: 高等教育ジャーナル : 高等教育と生涯学習
Journal Title(alt): Journal of Higher Education and Lifelong Learning
Volume: 25
Start Page: 23
End Page: 36
Abstract: The change of regulation concerning faculty meetings of university in the School Education Law has changed the administration of the university. The president has become able to make all of the administrative decisions of the university, because the president can freely deny the opinions of the faculty meeting. This is called the “ultimate decision-making authority” by the Ministry of Education. There is no definition or direct regulation of the decision-making authority in the School Education Law. This power is due to the interpretation of law by the Ministry of Education. The technique of interpretation is a fiction of law. This technique is strongly technical and arbitrary, indicating a limitation of the law. This fiction of the law is based on the theory that the ultimate decision-making power rests with the chief of an organization because the legislation concerning the power in the law of administrative organization is not sufficient. Practically, however, the chief cannot decide by himself and needs a consensus on the various steps in the administrative organization. The Ministry of Education says that the president has the power to decide because of his ultimate responsibility based on the principle of power corresponding with responsibility, but the relationship between decision-making authority and responsibility is complex, and not easy to clarify. We can understand it by considering the problem of legal responsibility, because someone must actually take responsibility in spite of not having the ultimate decision-making authority in the organization. Therefore, the power with responsibility needs a fictional explanation. The ultimate decision-making authority is a fiction of the law but is actually defined for the university by the Ministry of Education. Appropriate legislation is needed to prevent abuse of this fiction of the law with the understanding that the president's power of decision should be circumscribed within the constraints of political majority rule.
Type: bulletin (article)
URI: http://hdl.handle.net/2115/70468
Appears in Collections:高等教育ジャーナル = Journal of Higher Education and Lifelong Learning > 第25号

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