日本国家赔偿特别领域要论

国会立法的内容被法院认定违反宪法时 ,属于国家赔偿法上的违法 ;立法不作为时 ,法院承认国会有广泛的立法裁量权 ,但也认为存在违法性不作为的情形。因行政权限不行使发生损害时 ,成立国家的赔偿责任 ,但受到国民法益的性质、违反的义务的性质、注意义务的基准等因素的影响。关于非权力作用 ,理论与判例均未形成一致认识 ,但在学校事故事件、行政指导及信息提供等方面 ,已有适用国家赔偿法的倾向。

On Particular Fields in State Compensation in Japan

When an Act prescribed by Congress is determined unconstitutional by the court, it is illegal in law on state compensation. If there exists omission in legislation, the court admits that Congress has broad discretion on legislation, meanwhile it admits that omission is illegal in some circumstances. When an administrative agency does not exercise its power and infringes upon the rights of the private party, the latter shall have the right to recover his damages from the state. However, state compensation shall be influenced by such factors as the nature of rights, the nature of the obligation and the benchmark of obligation of notice. As to the administrative acts without power, there is no unanimous opinion in theory and precedents. However, there is a tendency to apply state compensation to accidents in school and administrative guidance etc.