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( Makoto Ohishi ) 서울대학교 법학연구소 2012 서울대학교 法學 Vol.53 No.2
In order to understand the reality of the constitutional review system, it would be necessary to analyze not merely the modalities of constitutional review by the judicial branch, but also the integrated government structure as a whole, while taking into account the function and practices of various prior check systems. If the function of control of constitutionality is understood merely as ex-post review by the judicial court, it would lead to an impression that constitutional review is not always actively exercised in Japan and that the Supreme Court is not fully performing the function of constitutional review. However, regarding the Government bills which account for the majority of the bills submitted to the Diet, prior strict legal scrutiny on a bill by the Cabinet Legislation Bureau is required. Moreover, the Diet member`s bills also receive a prior check by the Legislative Bureau of the House which is an assisting body. Therefore, it would not be proper to criticize the practices of constitutional review by the Supreme Court as judicial passivism in the sense that it is not fully performing the function of constitutional review. Rather, it should be considered that there are few opportunities for invoking the ex-post review system effectively, because the prior constitutionality examination by the assisting bodies of the democratic institutions are effectively functioning.