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平成25年10月7日京都地方裁判所判決(朝鮮学園vs在特会外)をどう読むか?

平成25年10月7日京都地方裁判所判決について、様々な議論がネット上で行われているようですが、判決の内容を纏めると以下のようなものです。

(在特会らによる示威活動、映像公開の違法性について)
いずれも、業務妨害、名誉毀損の成立により違法性を認定するという従前からの判断枠組みを維持しています(判決文68頁「2」、同69頁「3」、同70頁「4」、同71頁「5」参照。

(人種差別撤廃条約の効力について)
このように、人種差別撤廃条約2条1項は、締結国に対し、人種差別を禁止し終了させる措置を求めているし、人種差別撤廃条約6条は、締結国に対し、裁判所を通じて、人種差別に対する効果的な救済措置を確保するように求めている。これらは、締結国に対し、国家として国際法上の義務を負わせるにとどまらず、締結国の裁判所に対し、その名宛人として直接に義務を負わせる規定であると解される。このことから、わが国の裁判所は、人種差別撤廃条約上、法律を同条約の定めに適合するように解釈する責務を負うものというべきである(判決文66頁「4」参照)。

(ヘイトスピーチそれ自体が不法行為となることは否定)
もっとも、例えば、一定の集団に属する者の全体に対する人種差別発言が行われた場合に、個人に具体的な損害が生じていないにもかかわらず、人種差別行為がされたというだけで、裁判所が当該行為を民法709条の不法行為に該当するものと解釈し、行為者に対し、一定の集団に属する者への賠償金の支払を命じるようなことは、不法行為に関する民法の解釈を逸脱しているといわざるを得ず、新たな立法なしに行うことはできないものと解される。条約は憲法に優位するものではないところ、上記のような裁判を行うことは、憲法が定める三権分立原則に照らしても許されないものといわざるを得ない。(判決文66頁「5」参照)

⇒ 特定人の権利を侵害しないヘイトスピーチは不法行為とはならないことを明言しています。

(不法行為となるヘイトスピーチ=具体的な被害者のいるヘイトスピーチについては、損害額が加算されるべき)

したがって、わが国の裁判所は、人種差別撤廃条約2条1項及び6条の規定を根拠として、法律を同条約の定めに適合するように解釈する責務を負うが、これを損害賠償という観点からみた場合、わが国の裁判所は、単に人種差別行為がされたというだけではなく、これにより具体的な損害が発生している場合に初めて、民法709条に基づき、加害者に対し、被害者への損害賠償を命ずることが出来るにとどまる。

⇒ 繰り返し、特定人の権利を侵害しないヘイトスピーチは不法行為とはならないことを明言しています。

しかし、人種差別となる行為が無形損害(無形損害も具体的な損害である。)を発生させており、法709条に基づき、行為者に対し、被害者への損害賠償を命ずることが出来る場合には、わが国の裁判所は、人種差別撤廃条約上の責務に基づき、同条約の定めに適合するよう無形損害に対する賠償額の認定を行うべきものと解される。

やや敷衍して説明すると、無形損害に対する賠償額は、行為の違法性の程度や被害者の深刻さを考慮して、裁判所がその裁量によって定めるべきものであるが、人種差別行為による無形損害が発生した場合、人種差別撤廃条約2条1項及び6条により、加害者に対し支払を命ずる賠償額は、人種差別行為に対する効果的な保護及び救済措置となるような額を定めなければならないと解されるのである。(判決文67頁「6」参照)

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Comments

「わが国の裁判所は、人種差別撤廃条約2条1項及び6条の規定を根拠として、法律を同条約の定めに適合するように解釈する責務を負う」というので既に三権分立から逸脱してませんか?
また、「人種差別行為による無形損害が発生した場合、人種差別撤廃条約2条1項及び6条により、加害者に対し支払を命ずる賠償額は、人種差別行為に対する効果的な保護及び救済措置となるような額を定めなければならないと解される」は懲罰的賠償を許すような意味にとれるのですが、日本の国内法、及び、これまでの裁判で懲罰的賠償とは一般的だったんでしょうか?
在特会を擁護するつもりはありませんが、裁判所は国内法に基づき裁判を行うべきであり、条約を締結したなら国内法を改正してから裁判所がその法律に従って裁判を行うべきと思うのですが。

Posted by: OK1202 | October 08, 2013 at 04:18 PM

解説ありがとうございます。
とても分かりやすいですね。

一読した印象として、高裁は人種差別撤廃条約に基づいた法律をつくるよう立法府に促しているような印象を受けました。

Posted by: もんぺ | October 08, 2013 at 05:29 PM

条約に基づいて司法審査を行うことは十分司法権の範囲内ですし、憲法の明文規定からも適用可能だと思われます(98条2項)。

確かに「効果的な保護」の文言から懲罰的損害賠償を導くことも不可能ではありませんが、最高裁は公序に反すると言っておりますので、この判決が懲罰的損害賠償を採用したと考えることは不可能だと思われますが・・・

Posted by: federalist | October 08, 2013 at 05:31 PM

弁護士松原拓郎のブログで、
>橋詰裁判長は、「在特会の一連の行動は在日朝鮮人に対する差別意識を訴える意図があり、人種差別撤廃条約に盛り込まれた『人種差別』に当たる」と、事実上ヘイトスピーチだと認定。「違法性があり、人種差別行為に対する保護及び救済措置となるよう(賠償額は)高額とせざるを得ない」と述べた。

と引用してありますが、この元情報が間違ってるんですか?

Posted by: 通りすがり | October 08, 2013 at 06:23 PM

federalistさん
ありがとうございます。
ただ、こちらの日本国政府の見解では4-(2)で「そもそも直接個人の権利義務を創設するものではなく、締約国に対して人種差別の撤廃の義務を課しているものと考えられる。」とあります。
今回は、個人vs個人の民事訴訟ですので、条約に基づいて司法判断を行うのは、「直接個人の権利義務の創設」に該当し、この政府見解とは異なるように思うのですが。

Posted by: OK1202 | October 09, 2013 at 10:39 AM

通りすがり さんへ
その引用は単なる新聞記事です。
>事実上ヘイトスピーチだと認定。
この一文は記者が勝手に書いている筈です。なぜなら、判決文では業務妨害と名誉毀損を認定しているだけで、特定の被害者のいない差別発言については、民法709条の責任を問えないと明示されています。
弁護士の松原さん自身もまだ判決文を自身で読んではいないとブログにも書かれていますよね。

Posted by: ノンポリ信者 | October 10, 2013 at 12:18 AM

追記です。
>弁護士の松原さん自身もまだ判決文を自身で読んではいないと
>ブログにも書かれていますよね。

一方、山口弁護士は新聞記事の引用ではなく、ご自身で判決文を入手された上での解説です。

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