Clarifying the concept of "Eingriff" in german constitutional theory

2014 Fiscal Year Final Research Report

• Project/Area Number: 24730016
• Research Category: Grant-in-Aid for Young Scientists (B)
• Allocation Type: Multi-year Fund
• Research Field: Public law
• Research Institution: Tokyo Gakugei University
• Principal Investigator: SAITO KAZUHISA 東京学芸大学, 教育学部, 准教授 (50360201)
• Project Period (FY): 2012-04-01 – 2015-03-31
• Keywords: 基本権 / 人権 / 違憲審査基準 / 介入 / 間接的制約

Outline of Final Research Achievements

The three steps scrutiny in German constitutional theory is introduced to Japan and established to some extent. However, there is a gap of understanding the concept "Eingriff" between Japan and Germany. As a similar concept, indirect or incidental restriction is adopted in judgements of the Supreme Court of Japan. But its scope is not fully clarified, because the Court is not aiming at its systematization. It looks like a cover for direct restriction. Like Germany, Indirect restriction should be used only when burdensome effects against addressee of legal norm influence a third party. The "Eingriff" involves a function of detecting restrictions, which are prima facie difficult to find in various means of control by the modern state.

Free Research Field

公法学