裁判員候補者の予断と裁判員等選任手続 : 続・討議民主主義理論に基づく裁判員制度の意義の再定位

抄録

This paper is the second part of the study discussing what the theory of deliberative democracy based on the republican constitutionalism suggests concerning the practices of the saiban-in trial system, which is scheduled to be executed in Japan by May, 2009. In this paper, on taking a notice of the influence of the saiban-in candidates' prejudices upon the saiban-in trial, we consider how the prosecutor and the defendant should choose the saiban-in and whether the government should regulate the crime reporting causing the prejudice for the candidates. Suppose the prosecutor and the defendant are the reasonable players in the game, they must challenge the candidates who have the disadvantageous prejudices for each peremptorily. According to deliberative democracy it is necessary to count on not only the candidate's prediction but also the volatility of the candidate's opinion. Deliberative democracy allows regulating the crime reporting which causes the prejudice against the candidates. But this new democracy doesn't require it, because the deliberation has to be done not only by saiban-in in court but by person on the street in their daily lives. Given that introducing the saiban-in trial system attempts to make the people's deliberative forum, we can have these two arguments.