親の懲戒権 : 明治民法編纂過程における体罰正当化の過程

概要

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Parents have been considered, in applicable cases, as being remitted legal responsibility, on the ground that the parental right to discipline is recognized legally as parental right. Behind this is the problem that both on practices and theories, a certain interpretation has approved without questioned since Meiji Era, that corporal punishment should be regarded as just execution of parental right from the standpoint of private chastisement as a means of discipline. In order to ascertain why such an interpretation has been justified, this paper attempts a historical analysis of the parental right to discipline found in the first half of clause 1, Article 822 of Civil Code, focusing on Meiji Civil Law compilation process and Supreme Court judgment of February 1, 1904. The conclusions is that following three characters were given to the disciplinary right of parents: means for education, punishment and recovering lost honor, at the stage of the Meiji Civil Law enforcement,. Corporal punishment was approved so positively that "beating" was positioned within the range of discipline, and chastisement right was put at the core of the disciplinary right of parents. And disciplinary action "as long as necessary" was determined as the reason for rejection of illegality in Supreme Court judgment above.
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