憲法解釈における基本権保護義務論

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  • ケンポウ カイシャク ニ オケル キホンケン ホゴ ギムロン
  • Theories for protection duty of basic rights in the interpretation of Japan's Constitutional Law

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This paper examines the possibility of the introduction of“theories for the obligation of protection of fundamental rights”in constitutional discussions and interpretations in Japan. As the theories originate from fundamental rights under the Bohn Fundamental Law of Germany, they might not necessarily be adaptable to interpretations of fundamental rights of Japan's Constitutional Law. Given the important need to arrive at some objective aspects of fundamental rights, it would be fair to note that these theories are effective in their reconstruction of the functions of fundamental rights. It is reasonably assumed that the need for an“obligation of protection” of a public authority has increased recently particularly in this era of“risk society”in Japan, where people face a number of situations where there is little protection of the legal benefits arising from fundamental rights. Nevertheless, care needs to be taken that the obligation is not too strict, therefore avoiding excessive intervention by public authorities in issues of fundamental rights. Thus, this obligation should, in principle, be applicable under the following conditions; 1）person is facing or will face an infringement of their legal benefits under some fundamental rights，2）the obligation and their corresponding subjective rights are clearly identified in law，3）the protective measures taken by public authorities are necessary to ensure“individual respect”as stipulated in Article 13 of the constitution.

長崎大学経済学部研究年報, 26, pp.55-99; 2010

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