2016 Fiscal Year Final Research Report
Judicial Standards of Review and the idea of Interest Balancing--Its Significance and Limits
| Project/Area Number |
25380028
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Multi-year Fund |
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| Section | 一般 |
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| Research Field |
Public law
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| Research Institution | Hitotsubashi University |
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Principal Investigator |
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| Project Period (FY) |
2013-04-01 – 2017-03-31
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| Keywords | 違憲審査基準 / 利益衡量 / 比例原則 / 憲法訴訟 / 違憲審査制 |
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| Outline of Final Research Achievements |
Whereas European courts apply the principle of proportionality in determining whether governmental action is justified as a constitutional infringement on constitutional rights, American courts apply standards of review which are a tiered review of scrutiny. In this study, we first show that this difference can partly be explained by considering the unique historical origin of American standards of review. American standards of review sprang from both the anti-formalist movement on constitutional rights and anti-ad hoc balancing movement. Secondly, we show that both the methods of American standards of review and European proportionality analysis involve balancing constitutional rights with governmental interests as their core. Thirdly, we show that balancing methods should be complemented with a method focusing on the reasons for governmental actions, and demonstrate how this method is possible in practice.
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| Free Research Field |
憲法
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