法政論叢
Online ISSN : 2432-1559
Print ISSN : 0386-5266
ISSN-L : 0386-5266
カリフォルニア州憲法一〇条四節の手続法的意味
真鍋 政雄
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ジャーナル フリー

2004 年 40 巻 2 号 p. 168-181

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In California, there have been efforts to conserve public waters and adjacent shorelines for the use of local residents. Subsequently, errors in administrative procedure in relation to shaping rational public policies have prompted a search for the specific functions within the public trust doctrine. The fundamental rule of the trust doctrine originally proceeds from the nature of property rights under Roman and English law, and its basic concept is the policy of a state to protect its natural resources, in this instance, California trust properties are for the benefit of all its citizenry. The model for judicial skepticism was established in the Illinois Central decision of 1892, which was the most celebrated public trust case in United States history, and has served to protect certain public resources in later cases in California. Furthermore, the doctrine became a guiding principle on the interpretation of Cal.Const, art.X,§4 which indicates clearly that the public has the right to the use of the state's navigable waters. The solution of the legal meaning of Cal.Const.art.X, § 4 is the subject of this article. Therefore, judicial approaches to the trust are essential to the legislative intent of that constitutional provision. To understand the phase of judicial techniques on the basis of the doctrine, it is necessary to consider that each of the following three technical functions' Judicial Control, Land Use Regulation and Balancing, are strongly in favor of environmental conservation. The effect of such functions has been to force the decision-making agencies to actively seek out public interest. The procedural rights are sufficiently exemplified by the developments of the three judicial devices described above. California courts have recognized their own procedural responsibility to safeguard public trust in this context. The procedural responsibility points to so-called "indirect intervention". Legal questions about the public right of access to navigable waters need not be limited to a conventional litigation theory. In their own way, and with their own doctrinal development, the courts were able to form the present decision-making mechanisms. There is the possibility that the California flexible method for safeguarding trust lands might overcome the disadvantages under which the role of the judiciary has traditionally labored. Consequently, it was understood that the procedural rights are included among "the right of way to such water" noted in Art.X, § 4-The Right to Coastal Access. In this article, priority was given to problems of process rather than to problems of substance, with respect to the trust doctrine. The safeguards found in modern litigation in California are therefore not always theoretically airtight. A substantive analysis of public trust law developments in California will have to be conducted in another article.

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© 2004 日本法政学会
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