일본의 '히노마루' 및 '기미가요'에 대한 기립ㆍ제창 강제와 사상ㆍ양심의 자유

다국어 초록 (Multilingual Abstract)

Since enactment of The National Flag and Anthem Law in 1999, the enforcement ratio of standing and singing in unison of Hinomaru and Kimigayo at graduation and entrance ceremonies of public schools has been reached nearly 100%. However, many people who oppose to the Emperor system and a militarism that Hinomaru and Kimigayo symbolized and played role historically turn down such a compulsory ceremony. Especially, after 2007, the Supreme Court has dealt with legitimacy of disciplinary measures for teachers in public schools who refused this and whether or not violation of freedom of thought and conscience.
The compulsory enforcement of Hinomaru and Kimigayo has been the most major means adopted by Japanese Government that strengthen intervention through amendment of Education Basic Law and 'a course of study' etc. after World War Ⅱ.
In 2007, in a disciplinary measure case against a music teacher who refused a piano accompaniment of kimigayo in a Tokyo public school, the Supreme Court ruled that principle's order was not a external action that violated directly freedom of thought and conscience of the teacher. After this, in 2011, the Supreme Court ruled several similar cases that negative sense of values on Hinomaru and Kimigayo was a protected thought and conscience, yet a principal's ex officio order was not a direct restriction but a mere indirect restriction.
The theory on freedom of thought and conscience divides into 'the mind theory' and 'the belief theory'. Rulings of The Supreme Court were based on the belief theory that judged narrowly coverage of freedom of thought and conscience and regarded only his central sense of values in a general and objective viewpoint as thought and conscience. But, a compulsory enforcement of Kimigayo violates the freedom of silence, freedom not to be expressed different thoughts from what person has. And Enforcement of external action, standing and singing of Kimigayo is a direct restriction on freedom of thought and conscience.
The purpose of institutionalizing ceremony in respect of a national symbol is inspiration of patriotism and maintenance of national unity. This aim inheres riskiness that a reasonable criticism on national policies is intimidated and the citizen opposed to this is excluded.
To overcome such a contradiction bringing about exclusion while also seeking national unity, it is necessary to have an intellectual sincere approach and critical discussion instead of blind obedience to symbols, The state has no power to declare what is right on moral questions. Accordingly, Individual conscience problems must be exempt from regulation area of the state law.