🚀 go-pugleaf

>About your statement that the oil cartel case shows that
>administrative guidance is legally recognized:

The legal grounds for administrative guidance lie in the oil cartel decision
 because they really don't lie anywhere else.  It isn't mentioned in the
 Constitution.  It is recognized in Gyousei Tetsuzuki Hou 2.6, but only as
 giving advise, and I hope you'll agree that "Administrative Guidance" has gone
 far beyond just giving advise.

The Tokyo High Court, conserning the Oil Cartel Case stated that a price cartel
 was not illegal when undertake because of a "legal" (teki-hou) Administrative
 Guidance.

The first question is what the hell is a "legal" Administrative Guidance --
 especially considering its relationship with the law is tenuous at best.
 Apparently, the three guidelines are that there is some sort of condition that
 forces a ministry to take action -- again, no mention of what those conditions
 a may be -- that there is some sort of societal consensus on the issue, or that
 it is in the consumer's best interest.  At any rate, the opinion of the judges
 was that there was such a thing as a "legal" Administrative Guidance.

Also, just think about it from the company's side.  A ministry hands down
 Administrative Guidance.  It doesn't seem "legal" to you.  What do you do?  The
 ministries do have a history of abusing their power to enforce Administrative
 Guidance.  Do you say no.  If so, I am quite prepared to go into detail about
 what is awaiting you.

(Most of this stuff comes from "Anti-trust Laws and Easing Market Restrictions"
 by Toshiaki Hasegawa, 1995 Tokyo Nunoi Publishing, (pages 10, 11, and 49,50)
 but some comes from a law class I took last year and discussions I've had with
 people whom I consider to be experts)

>My understanding of the significance of this case is not
>that it legally recognized administrative guidance, but that the
>court said companies cannot hide behind administrative guidance
>to escape criminal prosecution for illegal price fixing under the
>anti-monopoly law.

Perhaps you'd like to give us your scources.  This interpretation seems rather
 simplistic considering the depth of the issues involved -- the existance and
 history of Administrative Guidance, and its relationship with anti-trust laws.

>Administrative guidance is legally recognized under the recent
>Administrative Procedure Act, which provides guidelines for
>its use. (The efficacy of this law in preventing abuse of
>administrative guidance would be an interesting topic to
>discuss.)  I think the U.S. played a positive role in
>getting this law passed.

I think the key word here is "recently."  Before this act, what was the legal
 basis for Administrative Guidance?

I'll get to Shou-hou later.

Eric Martin

University of Osaka