| The criterion of judicial review is one of the essential issues of the Japanese Judicial Review, as well as the fundamental guarantee of the operation of the Constitution. With the rapid development of economy and society, voices calling for attention and protection towards economic freedom are getting increasing, especially in the field of judicial review. The theme of this paper is based on the background mentioned above, making an objective introduction to the Economic Freedom of the Criterion of Judicial Review in Japan after the World War Two. This paper is expected to offer a deeper understanding to the Judicial Review in Japan so that it can contribute to the development of constitutionalism in our country. However, it is believed that any legal system is to face the interaction of practice and theory, with no exception of the Criterion of Judicial Review. In terms of the legal practice towards cases in Japanese courts, criterion of judicial review to which judges apply has shifted as well as the importance and perspective which they hold, with the development of society. In addition, various cases have a wide range of characteristics and thus judges will adopt different criterion and explanation when they are making judge towards those corresponding cases. Nevertheless, a commonness must be hiding behind all the differences. We are able to conclude the general thought by which the judges utilize when they are adopting criterion of judicial review, by analyzing and studying those cases. Similarly, scholars hold a variety of opinions concerning this study. However, since the establishment of the Japanese Constitution, the Public Welfare Theory and the Intention-oriented Regulating Theory are the most predominant arguments among all the theories about the criterion of judicial review in Japan. Consequently, it is inevitable to take a serious look at the two theories when talking about the criterion of judicial review in economic freedom of Japan.Therefore, in order to pursue the comprehensiveness of the problem, I mainly proceeding from the judicial practice and academics theory, studying and discussing the Economic Freedom of the Criterion of Judicial Review in Japan after the World War Two. In terms of judicial practice, by studying those typical cases, this paper analyzes and finds out the law of the Criterion of Judicial Review:In the case of theories of scholars, this article divides into two major part, developing and discussing the core issues. And it largely makes objective introduction, partly holds some subjective arguments. After each section, this paper always tries to explain the relativity of practice of Judicial Review, in hopes of realizing the interaction of practice and theory. At the end of this paper, I try to issue some advices towards the Criterion of Judicial Review in our country, contributing to the development of constitutionalism in our country.This Article consists of three parts. The first part, Economic Freedom of the Criterion of Judicial Review in precedents; the second part, Economic Freedom of the Criterion of Judicial Review in theories:the Theory of Public Welfare; the third part, Economic Freedom of the Criterion of Judicial Review in theories:the Intention-oriented Regulating Theory.The first part, Economic Freedom of the Criterion of Judicial Review in precedents. It begins from Japan’s jurisprudence, finding the Economic Freedom of the Criterion of Judicial Review in precedents. It begins from typical cases, organizing, analysis, and comparing the baseline characteristics of some relatively common, in order to achieve macro understanding.The second part, Economic Freedom of the Criterion of Judicial Review in theories: the Theory of Public Welfare. The Theory of Public Welfare is one of the important principles of constitutional review early in Japan. This theory mainly concerns whether basic human rights can be restrained or not, and by what to restrain. And, to answer to these questions is to understand the intension of "Public Welfare". Thus, I mainly discuss the relation between the intension of "Public Welfare" and the economic freedom.The third part, Economic Freedom of the Criterion of Judicial Review in theories:the Intention-oriented Regulating Theory. Professor Asibe Nobuyoshi’s related theory, which laid the theoretical basis of modern constitutional review in Japan, is a universally accepted theory in Japan. The creation and development of such theory, to some extent, have influenced the judgment of the courts in Japan. The reason why the theory has gained so much praise is that the theory analyzes the nature of the practice in regulating behavior, and classifies the purpose of the original intention of regulating behavior classification, that is positive regulation and negative regulation. Under different circumstances, the constitution’ tolerance towards that is different, so the applying principles are also different. Therefore, this part mainly discusses the different criterions under different regulation, in order to explain the basic contents of the Intention-oriented Regulating Theory. |
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