The role and the position of the consititution in the private law

本文拟从民法研究和宪法学的角度分析“宪法在私法理论中的作用和地位”。我们认识到，宪法中每一条的作用在构建私法方面仍未得到解决，尽管私法领域的任何行为都应该被宪法视为违宪和非法的，因为宪法是国家的最高法律（见日本宪法第98条）。本文从民法研究的角度出发，利用《民法》第90条中“公共政策”这一关键词来厘清这一理论问题是什么；从宪法学研究的角度出发，阐明宪法学理论对德国民法产生了怎样的影响。我们可以从民法的角度，通过对德国关于宪法在集体协议、环境保护等社会法律中发挥重要作用的理论的研究，得到一些建议。这就要求我们在借鉴德国法律理论的基础上，在社会法领域内开展民法与宪法的建构。

Our study is to analyze "the role and the position of the constitution in the private law theory" from the viewpoint of the civil law study and the constitutional law study.We recognize that the role of each article of the constitution remains unsolved to construct the private law, though any act in the private law sphere ought to be assessed unconstitutional and illegal by the constitution as the supreme Law of the Land (See the Article 98 of the Japan Constitution).We approached this issue to clarify, from the viewpoint civil law study, what is the theoretical problem, by using a keyword of "public policy" articulated in the Article 90 of the civil law, and, from the viewpoint of constitutional law study, what influence of the constitutional law theory makes on the civil law in Germany there are many research accumulation about the relationship between the constitution and the private law.We could obtain some suggestions, from the viewpoint of the civil law, by the research of the German theory in which the constitution has played an important role in the social law such as collective agreement and environmental protection. So we are required, on the basis of the German law theory, to develop the construction of the civil law and the constitution in the sphere of social law in the future.