財産権及び営業の自由の「多層的構造」

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菅家正瑞教授定年退職記念号In Honour of Prof. Masamitsu KankeThis paper attempts to unlock the“multiple structure”of property rights and“freedom of business”as stipulated in or deduced from Japan's Constitutional Law by reviewing and developing traditional academic theories and judicial precedents, thereby addressing the legal benefits and protection range of these fundamental rights. It would be fair to note that both fundamental rights intrinsically have multiple aspects, broadly divided into subjective and objective ones, and that constant review is required in order to ensure their adaptability to changing times in terms of political, economic and social situations. For example, property rights have an aspect that new elements of the rights are built up by law according to the change, while they consistently ask for a commitment of the public authority to ensure certain“legal property order”such as the private property system for maintaining individual self-sufficiency and“minimum standards of wholesome and cultured living.”Freedom of business also needs providing safeguards for“freedom by the public authority”，which is based on“legal competition order”among enterprises including requisite measures to protect consumers, in addition to“freedom from the public authority.” Hence the circumscriptions of these fundamental rights should be demarcated respectively based on a proper judgment as to whether or not relevant legislations are either excessively restrictive or insufficiently formative in line with a certain esteem of their function to“shape” the rights.
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海野敦史
長崎大学経済学部

財産権及び営業の自由の「多層的構造」

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