法社会学
Online ISSN : 2424-1423
Print ISSN : 0437-6161
ISSN-L : 0437-6161
刑罰制度の廃止と損害賠償一元化論
橋本 祐子
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ジャーナル フリー

2006 年 2006 巻 65 号 p. 82-95,254

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The purpose of this article is to examine the libertarian theory on punishment, which claims that punishment should be reduced to restitution.
What is the problem with punishment? Libertarians claim that the most serious problem is that it is unjust to crime victims. Under the punishment system, crime victims cannot be paid restitution. Further, the cost of administrating prisons is paid from money collected through tax, which is borne by citizens, including crime victims. This means that a double burden is placed on crime victims.
What is the conception of justice that law must achieve? From the libertarian viewpoint, the most important issue is corrective justice. Corrective justice requires that restitution be provided to crime victims. To that end, restitution, not punishment, should be the main negative sanction.
According to those who hold the view that restitution is an alternative to punishment, criminal liability should be reduced to civil liability. Such a view attempts to overcome the traditional thought that civil law must be clearly distinguished from criminal law, which is the main reason why crime victims have been overlooked in the Japanese criminal justice system. Moreover, it can offer a foundation for crime victims to have the right to seek restitution. Therefore, this view is highly significant in contemporary Japan because it can provide a perspective to criticize the present situation, in which justice is not delivered to crime victims.

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