日本憲法에 있어서의 政敎分離 - 2010년의 空知太神社訴訟 最高裁大法廷判決을 중심으로 -

Abstract

This treatise dealt with the problems of the Principle of Separation of Religion and Politics under the Constitution of Japan. The Constitution of Japan in 1946 provides freedom of religion and separation of religion and politics in Article 20 and Article 89. There are many problems as to the meaning of the separation of religion and politics under the Constitution of Japan. It focused on decision of the Supreme Court of Japan in the Sorachibuto Shrine Case(2010). The Supreme Court ruled the case of Sorachibuto(空知太) Shrine as follows : ⒜ Snagawa(砂川) City's giving Sorachibuto Shrine permission to use city land for free violates the constitutional philosophy of the separation of religion and politics under the Constitution of Japan, ⒝ as for the issue whether the constitution allows a religious organization to use public land for free or not, the criterion of judgment must not be the Purpose and Effect of use but be a socially accepted idea which taking into account religious organizations' character and state and general people's assessment of it comprehensively ; and ⒞ in order to further investigate whether there are other means of settling down the unconstitutionality of the use of city land for free, the Supreme Court annuls the original decision in virtue of its office and sends it back to the original court. Historically speaking, this decision is Japanese Supreme Court's second ruling for the case of the separation of religion and politics only after the decision of Eihime Damakushiryo(愛媛玉串料) Case in 1997. And this decision seemingly becomes an opportunity for the Supreme Court which has kept understanding and treating the issue of the separation of government and religion indolently to wake up for reality. However, this decision does not necessarily mean the destruction of existing basic frame for the separation of religion and politics and then taking a completely different doctrine. In conclusion, it seems to be a mere change of direction from the application of unitary criterion of decision―the universal application of purpose and effect test of clause 3, article 20 of the constitution―to the application of diverse criteria according to the conditions of cases.