Reconsidering the “Three-Step Theory” of the German Federal Constitutional Court: Its Objective and Analytical Approach

TAKAHASHI Kazuya

doi:10.15057/31118

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Other Title

ドイツ連邦憲法裁判所の「三段階説（Drei-Stufen-Lehre）」・再考 : 分析の対象・視角を変えるなどして
ドイツレンポウケンポウサイバンショノ「サンダンカイセツ(Drei-Stufen-Lehre)」・サイコウ : ブンセキノタイショウ・シカクオカエルナドシテ

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Description

The German federal constitutional court states in its “communal decision law ruling （1979）” that it uses three measures to judge the validity of the legislature’s predictions. But there are two obscure points to this “three-step theory.” The first point is how to determine when these three measures are applied. The second point is what is the basic way of thinking of that. This article attempts to clarify these two points. Part Ⅱ analyses five rulings stated by the “communal decision law ruling.” In the “social insurance law ruling（1960）” and the “abortion crime first ruling（1975）,” the constitutionalities of the laws, which seriously violate human rights, were contested. In these rulings, the judge used strict measures. In the “mill law first ruling（1968）” and the “mill law second ruling（1975）,” the constitutionalities of the laws, which violate human rights moderately, were contested. In these rulings, the judge used mild measures. In the “wine market law ruling（1974）,” the constitutionality of the law, which violates human rights very moderately, was contested. In this ruling, the judge used very mild measures. Part Ⅲ analyses where these five rulings cross. These measures are used on the basis of the seriousness of the human rights violation. The reason for this is that the court regards its task as “the protection of human rights.” So, behind this “three-step theory” is the basis way of thinking, which makes much of his own task.

Journal

一橋法学

一橋法学 19 (1), 299-389, 2020-03-10

一橋大学大学院法学研究科