京都府学連事件判決の読み方
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概要
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There is not a scholar's opinion ahead of a judicial precedent. The significance of existence of a scholar's opinion is accepted only after there is activity of the court which produces a judicial precedent. If a constitutional interpretation bears in mind the interpretation and application in a court, this relation nature cannot be denied. And, the influence to the actual society of a judicial precedent is far larger than a scholar's opinion. Moreover, the court does not have duty in which the authority and accepted theory of academic circles should be considered. If premised on the above ideas, what priority should be given to when carrying out a constitution interpretation is not examination of a scholar's opinion but examination of a judicial precedent. This paper examines the Kyotohu-Gakuren case. When the proposition which draws the conclusion of a concrete incident directly is understood as a ”judicial precedent”, it is the following proposition that it can be said to be a ”judicial precedent” in Kyotohu-Gakuren case: When it is admitted that a crime is performed now or there is not an interval after it was performed, and there are the necessity and urgency of perpetuation of evidence, and when the photography is performed by the reasonable method which does not surpass the limit generally permitted, photography of the appearance of the individual by the policeman is not Article 13 violation of the constitution. When a ”judicial precedent” is understood widely, the following propositions will be treated as ”judicial precedent” shown by Kyotohu-Gakuren case: (A) The freedom on an individual private life is protected to use of national power by Article 13 of the constitution, and (B) That freedom is not necessarily protected without any restriction. When there is necessity for public welfare, receiving considerable restriction is defined by Article 13 of the constitution. And the (B) is more important for conclusions of judgments. Scholars should argue about how is the logic of (B) refuted. According to each right and freedom, scholars should discuss concrete problems about the irrational nature of regulation, or an examination standard and the importance of a right. I think that the problem of the ”security range” is not the theme about which it should argue earnestly.
- 山形大学の論文
- 2006-07-31