규제권한불행사와 국가배상 - 일본의 치쿠호진폐(塵肺)소송 (最高裁2004年4月27日判決)을 소재로 하여-

These days the area of business has become larger and larger, which sometimes gives damages to the third party. And we often see the damage is due to no use or insufficiency of regulatory power. In this case, if the damaged third party files the state tort liability litigation, will he win? The problem is that Japanese State Tort Liability Act has no direct prescription about no use of regulatory power. And so, at first, we should make a theory to be applied to the case mentioned above. At the first stage the lower courts solved this task with the introduction of the theory of shrinking discretionary power. They regarded no use or insufficiency of regulatory power as a violation of law if the discretionary power shrinks nearly to zero. And they adopted four factors to judge if it does. Those are as follows; ① what the interest is damaged?, ② can it be foreseeable? ③ can it be escaped? and ④ can the third party himself handle the damage without the administrative help. But 1989 Supreme Court Case, which is the first one about the problem, approached it differently from those of the lower courts. It didn’t mention the shrinking theory openly. Instead, judging the case, it made much of the scope of protection prescribed in the law and the discretionary power. And 1995 Supreme Court Case also adopted the stance of 1989 Case. In 2004, we got the new Supreme Court Case. It is called ‘Chikuho Pneumoconiosis Case’. It gave a fresh impact to the researchers because it admitted the violation of law without mentioning the discretionary power. And one more point is that it does not differentiate no use fo regulatory power case from the normal case in judging the violation of law. It has been said it deserves the leading case about this topic. 2004 Kansai Minamata Litigation and 2014 Sennan Asbestos Litigation also followed 2004 Case.