1922年共和国少年福祉法における「子どもの教育への権利」条項の法理 : 制定過程の検討から

抄録

In this paper, the writer attempts to clarify the legal logic of the "Children's Right to Education" article in the "Child Welfare Law" (RJWG) of 1922, through a historical analysis of the process of its enactment. Juvenile delinquents were subject to correctional education since the 1878 correctional education law in Prussia. Its enactment was expected to prevent delinquency, but execution of correctional education was limited before the promulgation of the RJWG because it was thought to interfere with the autonomy of the family, especially parental authority. Although Article 135 of the civil law enforcement regulations permitted correctional education for the "prevention of serious delinquency", the application of this article was the exception. Because of this, some people maintained that in the interests of child welfare, not only private but also public legal principles that called for greater state intervention in family affairs should be embraced in order to prevent juvenile delinquency. In 1919, the Weimar constitution (WRV) was enacted; Articles 120 and 122 refer to child welfare. The former article allowed, in principle, family autonomy in relation to the state, while reserving to the state oversight of parental authority. The latter, in contrast, expressed the dominance of state authority over parental authority in the case of preventing juvenile delinquency. In 1921, the bill of RJWG was introduced to the Congress. In Article 1, "Children's Right to Education", the bill adopted the principle of public law while based on the principle of subsidiarity, a key concept of Catholic social theory that, in effect, limits state intervention. In this manner, the bill obscures the relation between the family and the state. However, RJWG Article 1 is noticeably similar to WRV Article 122, so it was interpreted that RJWG Article 1 was based on WRV Article 122. RJWG Article 64 on correctional education did further principles of public law by distinguishing "insufficient education" from the more general condition of "abuse of parental authority" as justification for state intervention. This new condition provided a 'social' perspective to the issue of state intervention in children's education. The bill was modified in the 29^<th> Committee, however. WRV Article 120 (not 122) was cited to show that Article 1 (or the RJWG as a whole) was based on WRV Article 120 rather than on 122. In addition, a new educational category of private institutions was also incorporated into the article. Private institutions could not be categorized as either a family or a state entity, but rather a 'social' entity. As for correctional education, articles were modified in order to limit state power over the family, which was allowed in the bill. RJWG, after such modifications by the 29^<th> Committee, was ratified on July 9,1922. Conclusively, RJWG was a 'social law" in two ways. First, it provided for "Children's Right to Education" from a `social' perspective (the word "social" appears in Article 1). Second, it incorporated 'social' concerns into education.