Departmental Bulletin Paper ドイツにおける信条冒瀆罪正当化の試みの憲法学的一考察(2・完) : 宗教をめぐる「情念」の保護のための巧知?
Justification of the Crime of Religious Defamation from the Perspective of Constitutional Law(2)

菅沼, 博子

16 ( 1 )  , pp.69 - 112 , 2017-03-10 , 一橋大学大学院法学研究科
The purpose of this article is to examine the religious defamation in the German Criminal Code(Article 166 of the Criminal Code)from the perspective of constitutional law. Until 1969, the German Criminal Code had the prohibition of blasphemy. After the reformation of the Code, this title was changed from blasphemy to religious defamation and the protected good of this article became “public peace.” However, “public peace” was problematic, because this good tended to be affected by believers who felt insulted and hurt. German legal scholars criticized such a situation. But the turning point came in the Wunsiedel Decision in 2009 by the German Federal Constitutional Court. This Court concluded that public peace as a protected good of Article 130(4)of the Criminal Code should not be influenced by poisoning of the emotional atmosphere. This judgement of the court has a major influence on specialized courts’ decisions about Article 166 of the Criminal Code. The scale of the problem related to Article 166 of the Criminal Code became smaller. Considering this situation, I review precedents, legal theories in Germany and try to find hints for the definition of religious defamation in Japan.

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