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１．はじめに 日本では、1970年代の終わり頃から、「大きな政府」の不効率が問題視されるようになった。高度経済成長(1950年代~1973年)が終わると、高度経済成長の時代に膨らんだ福祉部門やインフラストラクチャ―部門が、政府財政を圧迫するようになった。いかにして費用をかけずに福祉やインフラストラクチャ―の整備·維持·管理を行うかが、緊急の課題となったのである。
２．三公社の民営化 はじめに、中曽根康弘政権(1982~1987)が取り組んだのが、いわゆる三公社の民営化であった。三公社とは、①鉄道事業を行う日本国有鉄道、②電信電話事業を行う電電公社、③たばこ、塩、樟脳の専売事業を行う日本専売公社のことである。三公社の民営化は、その組織形態を民間の株式会社に変更して、政府の持株を民間の投資家に売却するということで行われた。 ②電信電話事業を例に説明すると、特殊法人であった電電公社は、1985年に日本電信電話株式会社(NTT)が設立されたことで解散し、その業務はNTTに引き継がれた(組織の民営化〔Organisationsprivatisierung〕)。この段階では、NTTは日本政府が全額出資する株式会社であり、政府が100％株主として、経営権を行使した。1987年以降、NTTの株式は、順次、民間に売却されていった(財産の民営化〔Vermoegensprivatisierung〕)。組織の民営化が行われた後も政府が株式を保有するのは、事業の継続性(Kontinuitaet)、平等性(Gleichheit)、適応性(Anpassung)といった「公共の利益(Gemeinwohl)」に反する経営が行われるのを、政府が株主権を行使することで防止するためである。規整改革(Regulatory Reform)の視点からみると、政府が100％株主となって経営権を行使するのは、政府の一部としての特殊法人に対して指図するのと、実質的に変わらない。しかし、NTTも、最初から民間の株式会社として設立されてきた他の電気通信事業者と同じように、市場の中の一事業者と位置づけられるべきであり、「公共の利益」を守るための政府の関与は必要最小限にとどめられるべきと考えられた。そこで、政府は徐々に保有株式を民間に売却して、その売却益を財政収入に充てていったのである。政府の持株比率が低下するにつれて、NTTの経営に対する政府の影響力は低下していく。最終的には、政府の持株比率は過半数を割りこみ、政府がNTTの経営に直接影響力を行使することはできなくなる。むろん、電気通信事業という、公益に関わる重要な事業を行う以上、政府がその事業に対して無関心でいることは許されない。しかし、公共の利益は、電気通信事業法に基づく監督権限を行使することで確保される。NTTは、「かつて特殊法人であったから」ではなく、「一つの電気通信事業者として」、他の電気通信事業者と同様に、電気通信事業法による業法規制を受けるのである(なお、NTTに関しては、2015年現在でも、日本政府が30％程度の株式を保有している)。 政府持株の売却が行われるか否かは、当該企業が、民間の投資家が魅力を感じるほど収益を上げているか否かに依存する。たとえば、①日本国有鉄道は、1987年、地域ごとのJR各社へと分割民営化が行われたが、経営状況の良いJR東日本(東京圏を管轄)、JR東海(東海道新幹線を管轄)についてはいち早く政府保有株式が民間に売却されたのに対して、経営状況が悪いJR北海道やJR四国の株式は、いまだ民間に売却されていない。③1985年、専売公社が民営化されて設立された日本たばこ産業株式会社(JT)の株式は、政策目的から、長らく政府が過半数の株式を保有していた。 近年、政治的な注目を集めたのは、④郵便事業の民営化である。郵便事業の民営化は、小泉純一郎政権(2001~2006)が政治課題として強力に推進した。もともと郵便事業は政府(郵政省·郵便事業庁)が実施していたが、郵政公社が設立されて、郵便配達、郵便貯金、そして「かんぽ」と呼ばれる簡易保険の三事業が移管された。その後、4つの株式会社が設立され、郵政公社から事業が引き継がれた(組織の民営化)。4つの株式会社とは、日本郵便株式会社(郵便事業)、かんぽ生命株式会社(生命保険事業)、ゆうちょ銀行株式会社(銀行事業)と、それらの持株会社である日本郵政株式会社である。2015年2月現在、これらの会社の株式は100％日本政府が保有しているが、2014年末に、かんぽ生命、ゆうちょ銀行、日本郵政の株式については、段階的に民間に売却されていく方針が示された(財産の民営化)。
３．指定確認検査機関 機能的民営化(Funktionale Privatisierung)の例としては、指定確認検査機関が建築確認を行うようになったことを紹介する。建築確認とは、ビルやマンションなどの建築物が地震に耐え得るか(耐震性)を都道府県の建築主事が確認する行政行為(Verwaltungsakt)である。建築主は、建設に着手する前に、建築基準法に従い、自治体から建築確認を受けて、建設完了後に確認済証の交付を受ける必要がある。しかし、阪神淡路大震災(1995年)からの復興に際して、あまりに多くの建物が新しく建設されることになったために、都道府県の建築主事の仕事が追い付かないという事態が発生した。そこで、2000年の建築基準法の改正によって、民間組織(株式会社を含む)であっても、政府の指定を受けることで、自治体と同様に建築確認事務を行うことが可能となった(指定確認検査機関)。ところが、指定確認検査機関の制度については、問題が生じた。つまり、耐震偽装を看過して建築確認がなされた場合に、耐震基準に満たない脆弱なマンションを買わされた者は、改めて耐震補修工事をするなど、追加の費用負担を求められることになるが、このような被害者は、誰に対して損害賠償請求をすることができるのかという問題である。まず、指定確認検査機関に対して損害賠償を請求するという考え方がありうる。しかし、指定確認検査機関は民間組織であるから、資力に余裕があるとは限らず、多額の損害賠償を請求されれば、財産が尽きてしまう。すべての被害者が十分な金銭的救済を得られるとは限らない。それでは、建築主事を置く都道府県に対して損害賠償請求が可能であるかといえば、法律上、都道府県が逐一、指定確認検査機関の仕事内容をチェックすることは予定されていなかった。権限が認められていないのに責任だけ負わされることになれば、都道府県は不満を持つだろう。この問題は、構造計算適合性判定の制度を導入することと、指定確認検査機関としての指定を受けるためには損害保険への加入を義務付けることによって解決されたものの、今後に課題を残した。
４．おわりに 第一に、日本における民営化と規整改革は、その当時の政治的関心に基づいて行われ、法的論議は十分に尽くされてこなかった。指定確認検査機関の事例は、問題が生じてから後追い的に法整備が行われたという点で、教訓を残した。第二に、国営企業の民営化の影響は、その国の経済の中で国営企業が占める影響力が大きいほど、大きくなる。中国のような社会主義国や、韓国や台湾のような新興国の場合、ヨ―ロッパ諸国よりも国営企業の民営化の影響は大きいと思われる。各国の民営化と規整改革の動向について、相互理解を深めることができれば幸いである。
1. Preface From the late 1970's, inefficiency of “Big government” is an issue which cannot be ignored in Japan. As the time of rapid economic growth (1950’s~1973) came to an end, increase of the welfare and infrastructure section came to suppress government finance. Effective management of the welfare and infrastructure section is an urgent need. 2. Privatisation of Three Public Corporations Prime Minister Nakasone Yasuhiro (1982~1987) worked on privatisation of the so-called “Three Public Corporations”. The Three Public Corporations are (1)JNR (Japanese National Railways) which performed railway business, (2)Nippon Telegraph and Telephone Public Corporation which performed telegraphic communication telephone business, and (3)Japan Monopoly Corporation which dealt with tobacco, salt, and camphor. The Three Public Corporations were privatised through change of their organizations to private companies and disposal of shares the government owned in each. I will discuss privatisation of the telecommunications as an example. In 1985, Nippon Telegraph and Telephone Public Corporation was dissolved, and its duties were succeeded by Nippon Telegram and Telephone Corporation (NTT) (Privatisation of Organisation). At this stage, NTT was a company wholly owned by the Japanese Government, and the government could use the right of management as 100% stockholder. After 1987, the stocks in NTT were sold on market sequentially (Privatisation of Property). The government holds stocks after the Privatisation of Organization is to use those stockholder's rights in to prevent management against "public interests" such as Continuity, Equality, and Adaptability. From a viewpoint of Regulatory Reform, it does not substantially change with directing the Public Corporation to use the right of management as the 100% stockholder. However, it was thought that NTT should be placed with the one company in the market in the same way as other telecommunications companies which had been established as private companies from the beginning, and the participation of the government in NTT’s management to keep "public interest" should be at a minimum. Therefore the government gradually sold stock holdings on the market and assigned the gain on the sale to a financial income. As ratio of shareholding of the government decreases, the influence of the government over NTT’s management decreases. When the ratio of shareholding of the government fell below the majority, the government could not use direct influence in the management of NTT. Of course, the government is not permitted to be indifferent to the telecommunications business because it is important in public interest. However, the public interest is secured by the government using regulatory powers based on the Telecommunications Business Law. NTT, not because it was a public corporation, but one telecommunications company, receives regulations of the Telecommunications Business Law (Note, NTT’s shares have been sold for the most part, but the government holds one third of the total as of 2015). Whether the sale of the government’s stock holdings is carried out depends on whether private investors feel charm on profit of the corporation. For example, JNR was divided and privatised to several Japan Railways companies (JR) operating in each area in April 1987, so stock holdings of the government were sold on market quickly in profitable companies such as JR East (operating in the Tokyo metropolitan area) and Central Japan Railway (operating the Tokaido Shinkansen), but those of Hokkaido Railway and Shikoku Railway Company, which are unstable in business, are not yet sold on market. As for the stocks of Japan Tobacco Co., Ltd. (JT) which was established through privatisation of Japan Monopoly Corporation in 1985, the government held stocks of the majority from a policy purpose for a long time. Recently, privatisation of postal services had attracted political attention. Prime Minister Koizumi Junichiro (2001~2006) strongly promoted the privatisation of postal services as a political issue. Originally the postal business had been carried out by the government (the Postal Services Agency), but Japan Post was established as a public corporation and took over three business operations from the Postal Services Agency: mail delivery, postal savings and "kampo" life insurance (Privatisation of Organisation). Afterwards, four companies were established, and business was continued by Japan Post: Japan Post Co., Ltd. (postal business), “kampo” life Co., Ltd. (life insurance business), Japan Post Bank Co., Ltd. (bank business) and the Japan Post Holdings Co., Ltd. (those holding companies). As of February 2015, the government held 100% of the stocks in these companies, however, at the end of 2014, the government announced that stocks of “kampo” life, Japan Post Bank, and the Japan Post Holdings would be sold on market (Privatisation of Property). 3. Designated Building Certification & Inspection Organizations As an example of Functional Privatisation, I will now introduce now designated Building Certification & Inspection Organizations came to perform building certification. Building certification is the administrative act by which the chief architect of the prefecture confirms whether buildings such as skyscrapers or apartments can withstand earthquakes. If someone intends to construct a building, he must obtain building permission from the local government concerned prior to the start of the construction in accordance with the Building Standard Law. He must also obtain a certificate of inspection upon completion of the construction. However, an unforeseen situation occurred when the chief architect of the prefecture could not handle his work since too many buildings were built with the reconstruction after Great Hanshin Awaji earthquake (1995). Because of the May 2000 revision of the Building Standard Law, private organizations, including stock companies, designated by the government are allowed to grant building permission and carry out inspections as well as the chief architect of the prefecture (Designated Building Certification & Inspection Organizations). However, a problem occurred with the system of the Designated Organizations. When Designated Organizations overlook earthquake-resistant camouflage and grant building certification, the people who buy the weak apartment which is below the earthquake-resistant standard have to construct earthquake proofing. From whom can they request compensation for additional expense? One way is that victims demand compensation from Designated Organizations, but Designated Organizations will become insolvent if large amount of compensation is requested. Designated Organizations are private organizations and may not be resourceful. It is not guaranteed that all victims will get enough financial relief. The other way is that victims demand compensation from prefecture employing a chief architect. However a chief architect did not check the work of Designated Organizations one by one in the Building Standard Law at that time. If though authority is not accepted and only responsibility is charged with, the prefecture will complain. This problem was solved by the introduction of the system of Structural Calculation Conformity Judgment (Started in June 2007) and the imposition to take out a damage insurance in order to be designated, but left a problem for the future. 4. Conclusion Firstly, in Japan, Privatisation and Regulatory Reform was based on political interest at that time, without enough legal discussion. In the case of Designated Organizations, legislation was carried out for follow-up after a problem occurred, so we have to keep this lesson in mind. Secondly, the impact of the privatisation is large, so that a national enterprise plays an important role in the economy of the country. In the developing nations, such as China, Taiwan, and Korea, the impact of Privatisation may be larger than that in Japan. I hope we will deepen our mutual understanding of Privatisation and Regulatory Reform.
1. Preface From the late 1970's, inefficiency of “Big government” is an issue which cannot be ignored in Japan. As the time of rapid economic growth (1950’s~1973) came to an end, increase of the welfare and infrastructure section came to suppress government finance. Effective management of the welfare and infrastructure section is an urgent need. 2. Privatisation of Three Public Corporations Prime Minister Nakasone Yasuhiro (1982~1987) worked on privatisation of the so-called “Three Public Corporations”. The Three Public Corporations are (1)JNR (Japanese National Railways) which performed railway business, (2)Nippon Telegraph and Telephone Public Corporation which performed telegraphic communication telephone business, and (3)Japan Monopoly Corporation which dealt with tobacco, salt, and camphor. The Three Public Corporations were privatised through change of their organizations to private companies and disposal of shares the government owned in each. I will discuss privatisation of the telecommunications as an example. In 1985, Nippon Telegraph and Telephone Public Corporation was dissolved, and its duties were succeeded by Nippon Telegram and Telephone Corporation (NTT) (Privatisation of Organisation). At this stage, NTT was a company wholly owned by the Japanese Government, and the government could use the right of management as 100% stockholder. After 1987, the stocks in NTT were sold on market sequentially (Privatisation of Property). The government holds stocks after the Privatisation of Organization is to use those stockholder's rights in to prevent management against "public interests" such as Continuity, Equality, and Adaptability. From a viewpoint of Regulatory Reform, it does not substantially change with directing the Public Corporation to use the right of management as the 100% stockholder. However, it was thought that NTT should be placed with the one company in the market in the same way as other telecommunications companies which had been established as private companies from the beginning, and the participation of the government in NTT’s management to keep "public interest" should be at a minimum. Therefore the government gradually sold stock holdings on the market and assigned the gain on the sale to a financial income. As ratio of shareholding of the government decreases, the influence of the government over NTT’s management decreases. When the ratio of shareholding of the government fell below the majority, the government could not use direct influence in the management of NTT. Of course, the government is not permitted to be indifferent to the telecommunications business because it is important in public interest. However, the public interest is secured by the government using regulatory powers based on the Telecommunications Business Law. NTT, not because it was a public corporation, but one telecommunications company, receives regulations of the Telecommunications Business Law (Note, NTT’s shares have been sold for the most part, but the government holds one third of the total as of 2015). Whether the sale of the government’s stock holdings is carried out depends on whether private investors feel charm on profit of the corporation. For example, JNR was divided and privatised to several Japan Railways companies (JR) operating in each area in April 1987, so stock holdings of the government were sold on market quickly in profitable companies such as JR East (operating in the Tokyo metropolitan area) and Central Japan Railway (operating the Tokaido Shinkansen), but those of Hokkaido Railway and Shikoku Railway Company, which are unstable in business, are not yet sold on market. As for the stocks of Japan Tobacco Co., Ltd. (JT) which was established through privatisation of Japan Monopoly Corporation in 1985, the government held stocks of the majority from a policy purpose for a long time. Recently, privatisation of postal services had attracted political attention. Prime Minister Koizumi Junichiro (2001~2006) strongly promoted the privatisation of postal services as a political issue. Originally the postal business had been carried out by the government (the Postal Services Agency), but Japan Post was established as a public corporation and took over three business operations from the Postal Services Agency: mail delivery, postal savings and "kampo" life insurance (Privatisation of Organisation). Afterwards, four companies were established, and business was continued by Japan Post: Japan Post Co., Ltd. (postal business), “kampo” life Co., Ltd. (life insurance business), Japan Post Bank Co., Ltd. (bank business) and the Japan Post Holdings Co., Ltd. (those holding companies). As of February 2015, the government held 100% of the stocks in these companies, however, at the end of 2014, the government announced that stocks of “kampo” life, Japan Post Bank, and the Japan Post Holdings would be sold on market (Privatisation of Property). 3. Designated Building Certification & Inspection Organizations As an example of Functional Privatisation, I will now introduce now designated Building Certification & Inspection Organizations came to perform building certification. Building certification is the administrative act by which the chief architect of the prefecture confirms whether buildings such as skyscrapers or apartments can withstand earthquakes. If someone intends to construct a building, he must obtain building permission from the local government concerned prior to the start of the construction in accordance with the Building Standard Law. He must also obtain a certificate of inspection upon completion of the construction. However, an unforeseen situation occurred when the chief architect of the prefecture could not handle his work since too many buildings were built with the reconstruction after Great Hanshin Awaji earthquake (1995). Because of the May 2000 revision of the Building Standard Law, private organizations, including stock companies, designated by the government are allowed to grant building permission and carry out inspections as well as the chief architect of the prefecture (Designated Building Certification & Inspection Organizations). However, a problem occurred with the system of the Designated Organizations. When Designated Organizations overlook earthquake-resistant camouflage and grant building certification, the people who buy the weak apartment which is below the earthquake-resistant standard have to construct earthquake proofing. From whom can they request compensation for additional expense? One way is that victims demand compensation from Designated Organizations, but Designated Organizations will become insolvent if large amount of compensation is requested. Designated Organizations are private organizations and may not be resourceful. It is not guaranteed that all victims will get enough financial relief. The other way is that victims demand compensation from prefecture employing a chief architect. However a chief architect did not check the work of Designated Organizations one by one in the Building Standard Law at that time. If though authority is not accepted and only responsibility is charged with, the prefecture will complain. This problem was solved by the introduction of the system of Structural Calculation Conformity Judgment (Started in June 2007) and the imposition to take out a damage insurance in order to be designated, but left a problem for the future. 4. Conclusion Firstly, in Japan, Privatisation and Regulatory Reform was based on political interest at that time, without enough legal discussion. In the case of Designated Organizations, legislation was carried out for follow-up after a problem occurred, so we have to keep this lesson in mind. Secondly, the impact of the privatisation is large, so that a national enterprise plays an important role in the economy of the country. In the developing nations, such as China, Taiwan, and Korea, the impact of Privatisation may be larger than that in Japan. I hope we will deepen our mutual understanding of Privatisation and Regulatory Reform.
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