條約在日本國內法體系中之地位的研究－以日本國憲法及國際人權條約為核心

本論文是以日本國憲法第九十八條第二項為核心，探討「條約在;日本國內法體系中之地位」，首先由「日本國憲法第九十八條第二項之成立」的歷史事實上找出「制憲時所可能參考之文獻」，而據以考察日本國憲法第九十八條第二項，進而，以日本國憲法相關條文比對，在這過程中並不斷地與各種學說相比較以歸納前後之邏輯脈絡，進而模擬對照條約與國內法體系互溶的狀況，終於形成了一個假說，即「階段變位說」，接著再以日本締結及實施條約的例子加以對照以證其成立。即，條約在締約意願開始醞釀前是不與國內法體系相接軌的，因此乃各行其是、毫不相干，一旦有了締約意願，即與國內法體系接軌，此時有識之士或者職權所在者勢必要檢視相關之國內法，進行把關工作，但一旦進入了締約階段，條約優位的本質便開始顯現，且越來越顯明，而在經條約端與國內法端之不斷調整後，條約理論上最後勢必與國內法體系同位互溶而形同一體，即，在大部份的時候，條約必然與國內法體系擬似同位互溶，但一旦條約與國內法體系有所矛盾時，條約優位的本質便再度顯現，無論如何抗拒，終須以各種強制互溶的手段，使其再度歸於擬似同位互溶的狀態。

關鍵字

憲法稽核；階段變位；強制互溶；同位互溶；擬似互溶

並列摘要

This paper is to study the position of a convention in the national law system of Japan. Firstly, in order to investigate Section 2 of Article 98 of the Japan Constitution , literatures which had been probably referred to during the establishment of the Japan Constitution were found out from historical facts occurring during the establishment of the same section of the Japan Constitution . An investigation was then conducted through a comparison of the related provisions of the Japan Constitution . In this process, the author frequently compared various theories to summarize earlier and later principles of logic and emulated a condition in which a relevant convention harmonizes the national laws. At last, the author attained his own hypothesis, i.e. a theory that the position of a convention is changeable with its moving stages. After examining the examples in which conventions are concluded and implemented in Japan, the author has a belief that the position stepwise changeable theory can be established. Specifically, before a desire to conclude a convention is brewed, the convention is not in contact with any national law. They are administered individually and are irrelevant to each other. But, once conclusion of a convention is desired, the convention will contact the national law. At this juncture, people of insight and authorized persons need to check the related national law and conduct a filtering task. But, once a stage of conclusion is entered, the essence of convention predominance will begin to manifest and will be more and more apparent. After a series of adjustments between the convention end and the national law end, the convention, in theory, will eventually equally harmonize and integrate with the national laws. That is to say, for the most part, the convention and the national laws are necessarily in a quasi-harmonization state. Nevertheless, once the convention contradicts the national laws, the essence of convention predominance will manifest once again. However it is defied, it is finally necessary to take every forcible harmonizing action to achieve a quasi-harmonization state again.