子ども虐待の司法判断における“公共の福祉”に関わる法概念

概要

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In recent years the number of the child abuse is increasing in Japan and Germany. However　between both countries there is a significant difference in the number of parental authority deprivation by　the judicial decision : it is much higher in Germany than in Japan.　We think that the difference is based not only on the difference of law system, but also on theconceptual difference in viewing “child’s welfare”. This paper examines “child welfare” concept in legal provision theories and the latest judicial precedents in three cases of child abuse in Germany : parentalauthority deprivations were judged on the ground (1)of a breaching of parental responsibility of having child to get education at school, (2)of mother’s inappropriate action, and (3)of consideration of possible father’s decision of circumcision on his daughter.We find that concept in a legal provision and theories related to “child’s welfare” is not defined uniquely in Germany, that it in a judicial decision includes quite various contents, and that the judicial standard of the danger to “child’s welfare” is comprehensive because of reflection to globalization and diversification in European society. These are connected with large number of parental authoritydeprivation in child abuse in Germany.
2010-03-31