法社会学
Online ISSN : 2424-1423
Print ISSN : 0437-6161
ISSN-L : 0437-6161
2013 巻 , 79 号
裁判員制度の法社会学
選択された号の論文の13件中1~13を表示しています
特集 裁判員制度の法社会学――施行後3 年を経過した裁判員法の再検討
  • 模擬評議実験にもとづく検討
    荒川 歩
    2013 年 2013 巻 79 号 p. 1-15
    発行日: 2013年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
    In saiban-in systems, both lay and professional judges deliberate and reach a verdict. Previous studies have suggested that the opinions of professional judges strongly affect those of lay judges owing to the legitimate power of the former. On the other hand, research on persuasion shows that “inoculation” contributes to inhibiting the effect of persuasion. This study examined the effects of closing arguments, treated as a form of inoculation, on the deliberations and decision making of lay judges. In Experiment 1, 24 undergraduates participated in a mock deliberation. Four undergraduates served as mock lay judges and a law school graduate served as a mock professional judge to constitute a mock jury. Before deliberation, participants read a trial scenario in which the main issue was the “intention to kill.” The closing argument in the scenario read by half the juries included only the defense attorney’s presentation of the defendant’s behavior (non-Inoculation group), whereas the remaining juries read this presentation as well as the legal standards for judging “intention to kill (inoculation group),” The results showed that the lay judges in the inoculation group were less likely to challenge the opinion of the professional judge than were those in the non-inoculation group. However, very few explicit references to the defense attorney were made during deliberation. Experiment 2, which involved the presentation of a self-defense scenario to 24 undergraduate and graduate students, revealed a tendency similar to that found in Experiment 1, but it was not statistically significant. These results suggest that inoculation in closing arguments can affect the reactions of lay judges to the implicit power sometimes wielded by professional judges.
  • 大出 良知
    2013 年 2013 巻 79 号 p. 16-36
    発行日: 2013年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
  • 葛野 尋之
    2013 年 2013 巻 79 号 p. 37-62
    発行日: 2013年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
    Although the primary goal of the Japanese lay judge system is to improve the framework and process for defendants in criminal trials, this goal will only be achieved once courtroom trial procedures are reformed. Under the current system, court proceedings are dependent on oral, rather than written, statements and arguments, making courtroom hearings more understandable for both defendants and lay judges. However, trials that are based on a foundation of oral statements and arguments are not solidly based, lacking the essential elements of traditional Japanese minute justice, which includes thorough, in-depth investigation and careful identification of cases for prosecution. Therefore, to ensure that due process is met, a complete reform of minute justice and courtroom trial procedures is required. At this time, the Criminal Justice Reform Subcommittee of the Justice Ministry’s Legislative Council is in the process of discussing massive reform of criminal procedure. The Subcommittee has identified serious problems in the current system, related to the following: heavy dependence on interrogation by the investigative officers and written statements of suspects and other persons; non-critical trial proceedings in the courtroom; tremendous influence of the investigation on the result of trial; overemphasis on the revelation of true facts of the cases; decline of due process of law; false confessions; and mistrials. These are procedural problems that are inherent in the traditional Japanese system of minute justice. Only complete reform of this system can address and solve such problems. Thus, current criminal justice procedures and the lay judge system share a common need for reform. Complete revision of the minute justice system should be led by the constitutional principle of due process of law, and careful selection of cases for prosecution based on thorough and in-depth investigation should be reconsidered in terms of extremely high suspicion and frequent use of suspension of prosecution.
  • 評議における参加者のアイデンティティと「国民の健全な常識」
    小宮 友根
    2013 年 2013 巻 79 号 p. 63-84
    発行日: 2013年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
    In this paper, we give our viewpoints for a comparative review of discussions on the significance of the Saiban-in system, analyzing data from mock trials. First, we review discussions on the Saiban-in system. Two conflicting viewpoints have often been argued―“the democratic grounding for the criminal law system” and “enhancing public understanding and confidence in the system.” Second, we present some forms of utterances in which lay judges give their opinions using their common sense. We pay special attention to membership categories used by lay judges for self and other identification when giving their opinion. We show that there are multiple ways of interpreting the idea of the Saiban-in system, “reflecting the public’s sound common sense on criminal justice.” We then argue that the assessment of the significance of the system is intricately linked with the assessment of the forms of the lay judge’s utterances. Therefore, in conclusion, we need a coherent institutional design that can adequately lead a lay judge’s concrete activities so that the idea of the Saiban-in system is transparent to the public.
  • 制度施行後2年間の性犯罪裁判員裁判の検討を通じて問う
    平山 真理
    2013 年 2013 巻 79 号 p. 85-105
    発行日: 2013年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
    The one of the strongest and clearest impact of the Lay Judge System in Japan has been seen in sex crime lay judge trials. Since the introduction of the system, sentencing for sex crime has been increasing. It seems that there has been a great “gap” between what lay people think is the proper sentence for sex offenders and the opinions of professional judges. Also, there are new challenges for victims of sex crime as they now have to be faced with lay people who may be acquaintances of victims. In this paper, I analyze various issues in sex crime lay judge trials. Those are, how and why impacts on sentencing has been seen, victims issues, whether sex crimes should not be tried by lay judge trials, and gender issues of lay judges. In order to do so, I used the data I had collected on the lay judge trials for sex crime cases (n=205) over a 2 year period since the system launched. It seems that many of challenging issues of the Lay Judge System are condensed and strongly seen in sex crime lay judge trials, so it can be said that sex crime trials are one of the most controversial areas of the System. The goal of my research is to reveal impacts, present issues and future prospect of the System through reviewing those 205 sex crime lay judge trials.
  • 施行後3年を経過した裁判員法の再検討
    松宮 孝明
    2013 年 2013 巻 79 号 p. 106-129
    発行日: 2013年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
    This article examined the two recent proposals for reform of the lay-judge system, the Supreme Court decision which ruled on 13th April 2012, and the trend of sentencing at the appeal court. First, it compared the contents of two proposals for the reform of lay-judge act, one was made by a volunteer group of former lay-judges and the other was issued by “the Committee to discuss lay-judge system” at the Ministry of Justice. I found that the official proposals issued by the Committee are not responsive to the suggestions offered by former lay judges despite well-formulated ideas it contained. Second, I reviewed the landmark Supreme Court decision and recognized the orientation that permitted the appellate court to review the decision of not guilty only in the case that the decision of lay-judge court had violated rules of logics or rules of experience. But it is important to point out that appellate court could review the conviction if it does not find any violation of rules of logics or experiences at the trial court. Finally, the data of sentencing shows that the review of sentencing at appellate court is constrained. This article concludes but it is injustice to leave the disparity of the sentencing among cases and the appellate court should review and control the sentencing at the lay-judge court by “trends of sentencing.”
  • 裁判員制度に刑事裁判の原則は生かされているか
    丸田 隆
    2013 年 2013 巻 79 号 p. 130-151
    発行日: 2013年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
    This essay tries to analyze the fact-finding method of the professional judges and that of Saiban-in (lay assessors) in the so-called mixed court system based upon the data collected for four years after the start of the system on May 21, 2009 in Japan. First of all, I would like to compare the data with those of the criminal jury system existed from 1928-43 in Japan by paying attention to the meaning of rate of not-guilty verdicts. Subsequently by focusing upon the cases of “Stimulant Drug Smuggling Cases” among not-guilty verdict cases of Saiban-in trials, the actual and practical fact-finding method for decision making that appeared in both Tokyo Court of Appeal and the Japanese Supreme Court. The judicial opinions of both courts revealed the difference of fact-finding method between professional judges and Saiban-in: judges make use of the deductions drawing from indirect or circumstantial evidences repeatedly to reach unproven fact but Saiban-in is more inclined to follow the “Beyond the Reasonable Doubt” standard to decide the fact. The Supreme Court of Japan recommended in the Court opinion that the presiding judge of Saiban-in should explain the fact-finding method of the judges to Saiban-in to get into line to decide the case. If so, such judge’s instruction on this matter to the Saiban-in should be provided in the open court.
司法改革の視点
  • 刑事司法改革の観点から
    指宿 信
    2013 年 2013 巻 79 号 p. 153-165
    発行日: 2013年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
    The purpose of this article to describe is the legislative history for introducing visual recording of interrogation and, second, to analyze the background behind the discussion on the Special Committee for the Criminal Justice under the Legislative Council of the Ministry of Justice. For the purposes, the author, at first, examines the history of mandatory visual recording, so called “Kashi-ka,” and four stages of its reform process. The first stage was the era of glass-route movement. Since 2003, the public opinion of introducing video-recording of police/prosecutor interrogation room has risen. The main body which requested the recording was the Japan Federation of Bar Associations. The second stage was the time around a crisis of the investigation of the Osaka Public Prosecutor Office. It happened in 2010, when the wrongful prosecution against Ms. Muraki, one of the highest officer in the Ministry of Health, Labour and Welfare, came out into the light. It concerned the fabrication of evidence by a prosecutor. At the time, the public lost the integrity and trustworthiness on the prosecutor office and their investigation. Early 2011, a special committee called by the Ministry of Justice proposed legislation in Japan for mandatory visual recording of prosecutorial interrogation. The third stage was a period of discussion in the Special Committee under the Legislative Council. And the fourth stage would be the time of parliament debate. This article criticizes the bureaucrat led process which is especially notable at the third stage. In January 2013, the Special Committee proposed their original idea, which points to the alternative direction as a legislative bill; their first idea is to introduce mandatory visual recording of only in the mixed-jury trial cases, and the second idea is discretionary video recording by the investigator on site. On the other hand, in the Committee many substitute investigation “tools” have been discussed. The author strongly criticizes this logic as “barter” strategy and proposes setting “innocence commission” in order to find reasons the wrongful conviction in Japan. In conclusion, this article emphasizes that criminal justice reform must be promoted for dismantling future miscarriage of justice.
論説
  • Criminal Law as an Instrument of Policy?
    Hiroaki Ono
    2013 年 2013 巻 79 号 p. 167-189
    発行日: 2013年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
    This paper offers a brief theoretical overview of the problem of environmental crime as, on the one hand, a legal, and on the other, an economic phenomenon. In particular, it seeks to determine the circumstances, if any, in which criminal law may represent an efficient policy tool for the deterrence of environmental offences. The standard legislative approach to deterring environmental pollution has been a system of tort. Tort has been judged normatively preferable to criminalisation for two reasons: firstly in that, criminal non-monetary sanctions, such as imprisonment, are taken further to incur social costs; and secondly, because it is supposed that potentially polluting firms and their employees will be able to transact private agreements between themselves effectively transferring risks. This framework of arguments, however, is challenged by the hypothesis that individual employees may evaluate choices of action sub-optimally in the domain of chance. In situations featuring inherent risk, it has been established that individuals commonly deviate from prefect rationality, becoming riskaverse when facing gains and risk-seeking when facing losses. While broadly accepting the preferability of tort to criminal law in seeking to limit pollution, this paper investigates the claim that risk demarcates a field of special circumstances for which lawmakers can optimise social welfare by maintaining the threat of criminal penalties. In other words, the different risk-seeking and risk-averse behaviour of groups (firms) and individuals interferes with the efficient contractual transfer of risks. Where tort law is unable to effect the full internalisation to firms of the externalities of their actions (pollution), a secondary criminal law framework may become necessary for optimal deterrence. Where my account will be new, however, will be in factoring into discussion a consideration of findings from psychology, suggesting that behaviour ceases to be rational in circumstances where expected utility cannot be calculated with certainty.
  • 規範的法社会学のために
    佐藤 憲一
    2013 年 2013 巻 79 号 p. 190-216
    発行日: 2013年
    公開日: 2021/05/04
    ジャーナル オープンアクセス
    Do you remember the question “why must not kill a person?” There were almost no those who were successful although many commentators tried to answer to this question. The cause is that there were few people noticing that this question is issued within the moral language game. We think that things can often be considered from the outside of society, but it is impossible. Human beings are essentially inherent in society. “There is a law when there is a society.” There is always law with society. Law is also essentially inherent in society. This is the “living law” which makes social order possible. The modernistic thought denies the internality of law and thinks that the transcendental modern law theoretically makes real social order possible. This is a model to the last, and there is disagreement with the reality. The sociology of law critiques the modernistic law model which contradict reality. The sociology of law is not only an empirical study but also a theoretical and practical study. The sociology of law considers the existential structure of law, and searches the way law should be. The features of the normative sociology of law are internality and criticality. The sociology of law is inherent in society and criticizes the modern law.
世界の学界動向
書評
feedback
Top