Departmental Bulletin Paper 医療技術の発展と司法の政策形成・法創造機能 : 日米比較を基に
Health technology and policy-making function of the judiciary : based on comparison between the U.S and Japan

畑中, 綾子

17pp.201 - 210 , 2015-03-31 , お茶の水女子大学大学院人間文化創成科学研究科
As long as the development of science and technology is not accompanied by the legislation or\policies to govern this technology, actual social problems will occur that will require the judiciary\to take on the initial role of finding resolutions to these problems. Policies and legislation appear in\response to the course of litigation, and plaintiffs may intentionally instigate lawsuits in order to have\this sort of impact on political issues. These lawsuits have been called policy-oriented lawsuits.\In lawsuits of posthumously conceived child in the U.S, the judiciary has affirmed legal parentage\of children by inferring the intention of the legislature. In contrast, Japan has adopted a policy of\refusing to do so in the absence of legislation. On the other hand, in lawsuits on adverse drug, Japan\has aggressively judged the illegality of administrative bodies in order to provide remedy. There have\also been cases where litigation has stirred up policy debates that have encouraged the government\to establish safety strategy. While it is recognized that such a use of litigation has an impact on\drug administration, the time has come to reconsider its function as a forum for administrative and\legislative bodies that essentially play direct roles.

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