改正教育基本法にみる国と地方公共団体の教育への関与に対する抑制原理 : 教育基本法に関する特別委員会の議事録の分析を中心に(III 研究報告)

抄録

The aim of this study is to secure a basis for an interpretation of the Revised Fundamental Law of Education through an analysis of the articles concerned and to make the function and application of the articles which have represented the check and restraint role over central and local governments clear from the viewpoint of participation of these governments in education. At first the text of Article2, which is supposed to play the core role over the other articles, is confirmed. Through this process the findings include a) the objectives set by Article2 which do not impose specific legal obligations, b) the purpose of the text in " raising attitudes" which intends to keep harmony with the freedom of mind, and c) accomplishment of the goals as correspondent with the text, "respecting academic freedom." The findings are as follows. First, from the viewpoint of legal definitions, the articles are divided into two parts. One is those articles which are supposed to contain a clear definition of domain such as the articles on school education, compulsory education, private schools, and universities. The other is those articles which are supposed to have vague definitions of domain such as the articles on social education, home education and early childhood education. Secondly, which text has an explicit function as restraint against government is clarified, as well as which text has an implicit function of restraint against government. The relationship among these articles and the texts mentioned above is then made clearer. According to the official minute book of the committee, check and restraint principles have some variation in terms of being applied to the domain of the articles. As a result when these are applied, we need to pay attention to the variety of applicable criteria or standards according to the characteristics of the domains such as the degree of the autonomy of the subjects in each field, the practical effectiveness of government participation and control, and the degree of development of children.