徳島遊動円木裁判にみる戦前公立学校の性格

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It's supposed that the modern public school system in Japan was established in 1900, but the nature of this system had to remain unknown to the nation still after that. The substantial character of a public school system, of which we are usually unconscious, can be clarified only when some incident happens in school and our everydayness is broken. This paper tries to verify the fact through an analysis of the case related to a swinging pole accident which took place in a Tokushima municipal primary school in 1913. This "swinging pole case" is a famous classic example indispensable when we tell of the jurisprudence on national indemnity under the Meiji-Constitution. In the process of the trial, it became an important issue whether a primary school should belong to State or to a municipality, and whether possessing an institution of a primary school is public law-related or private law-related. The Supreme Court judged that a primary school should belong to a municipality and that there could be a double meaning in its possession, but such a fundamental issue could not be settled and remained obscure even after this judgment in the controversy among the jurists. As a result of this Supreme Court's judicial precedent, it became possible for the first time to apply the civil law (the article of reparation for damage) to accidents that happened in public schools. However, the thought itself that school education schould be ruled by the special power relation (das besondere Gewaltverhaltnis), which depended on the order-obedience relation, did not waver at all. Even today problems brought forward by the Tokushima Case hardly seem to be fully solved.
桃山学院大学の論文
1992-03-31

徳島遊動円木裁判にみる戦前公立学校の性格

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