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廣島法學 46 巻 4 号
2023-03-15 発行
公衆衛生法規における強制条項と憲法保障
Constitutionality of Compulsory Clauses in Public Health Laws
八尋 光秀
Abstract
The Eugenic Protection Act (enacted in 1948), the Mental Health Act (enacted in 1950), and the Leprosy Prevention Act (enacted in 1953), which were public health laws enacted soon after the Constitution of Japan came into effect, granted administrative enforcement powers such as compulsory hospitalization (admission), room isolation, physical restraint, compulsory eugenic surgery, etc. Of these, related regulations of the Leprosy Prevention Act and the Eugenics Protection Act were ruled unconstitutional by lower courts.
In this article, after introducing these unconstitutional judgments, I considered the constitutionality of the mandatory authority clauses including compulsory hospitalization (admission), room isolation, physical restraint, etc. in the Mental Health and Welfare Act and the Intellectually Disabled Persons Welfare Act, which still have compulsory authority provisions. Furthermore, I envisioned a path toward the complete abolition of mandatory power clauses.
In this article, after introducing these unconstitutional judgments, I considered the constitutionality of the mandatory authority clauses including compulsory hospitalization (admission), room isolation, physical restraint, etc. in the Mental Health and Welfare Act and the Intellectually Disabled Persons Welfare Act, which still have compulsory authority provisions. Furthermore, I envisioned a path toward the complete abolition of mandatory power clauses.
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