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Please use this identifier to cite or link to this item: http://ir.jwcpe.ac.jp/dspace/handle/123456789/1095

Title: 権利性質説と権利保障の枠組みの再検討 : 無国籍者となった台湾人の事例を素材として
Other Titles: Re-examining Kenri Seishitsu Setsu and the Legal Framework of Human Rights Protection : By focusing on the case of Stateless Taiwanese
Authors: 中村, 安菜
Nakamura, Anna
ナカムラ, アンナ
Keywords: Kenri Seishitsu Setsu
dichotomic category
framework of human rights protection
Issue Date: Mar-2018
Abstract: This paper seeks to examine the problem of Kenri Seishitsu Setsu. Kenri Seishitsu Setsu is the common theory shared by conditional lawyers which defines how to expand the scope of connotational law to protect fundamental human rights of foreigners. Base on this theory, each right is subjected to legal criteria with which the constitution takes balance between the constitution as a basis of a state and the principle of fundamental human rights. In this regard, foreigners are regarded as subjects of some rights under the constriction ; protection of their rights depends on the nature of each right.  As soon as the development of nation state in 18-19 centuries, the concept of nationality was founded in order that states were to distinguish the national from aliens. Later, the nationality has also become a minimum requirement to be the subject of basic rights, which the nation is responsible to protect under the constitution. After W. W. II, however, the concept of human rights was expanded to the level of international law under the slogan better protection of rights for all the people. Influenced by the international trend, Kenri Seishitsu Setsu was developed in Japan. This theory, however, has an essential defect, that the theory is unable to provide protection for all the people in any nation. Since the appearance of the concept of the nationality, it has been taken for granted that people are categorized either as nationals or foreigners. Based on this dichotomic categorization, statelessness is excluded from the scope of law. The case of stateless Taiwanese, who lost not only Japanese but Chinese nationality after W. W. II exemplifies clearly the defect. Since this defect cannot be resolved simply by the renewal of the theory, this paper points out the importance of renewing Kenri Seishitsu Setsu with more comprehensive theory.
URI: http://ir.jwcpe.ac.jp/dspace/handle/123456789/1095
ISSN: 02850095
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