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2005.02.22

未必の故意で死刑判決を出してよいか?

 千葉県館山市で2003年12月に、一家4人が焼死するなどしたことについて、殺人や現住建造物等放火などの罪に問われていた被告人に対して、2月21日、千葉地方裁判所(土屋靖之裁判長)は、検察官の求刑通り、死刑判決を言い渡したと報道されている(asahi.comの記事)。


 私が注目したのは、弁護側は、公判において、放火の事実は認めたものの、被告人は放火することだけが目的で、住人を殺害する意図はなく、「殺人罪は成立しない」と主張していたのに対し、判決が、被告人は住人が火事に巻き込まれて死ぬかもしれないと認識しており、「未必の殺意があった」と認定したとされている点である。

 少し前のことであるが、和歌山市園部で、1998年7月に、自治会の夏祭りでカレーを食べた4人が死亡、63人が急性ヒ素中毒になった毒物カレー事件(いわゆる和歌山カレー事件)についても、殺人罪等の罪に問われた被告人に対して、和歌山地方裁判所(小川育央裁判長)は、「未必的な殺意で敢行した」と認定して、死刑判決を言い渡したことがある(現在、大阪高等裁判所で審理中)。

 この時にも、「未必の故意」を認定した上での死刑判決に強い違和感を覚えた記憶があるが、今回の千葉地裁判決も、「未必の故意」を認定した上での死刑判決であり、違和感を覚えた。そこで、この機会に、この問題について考えてみることにしたい。

 そもそも、「未必の故意」というのは、確定的故意に対比される不確定的故意の一種であり、犯罪的結果の発生自体は確実でないが、発生するかもしれないことを表象しつつ、それが発生してもかまわないと認容している心理的状態のことである(例えば、大塚仁『刑法概説(総論)〔第3版〕』【有斐閣、1997年】201頁参照)。

 理論的には、「未必の故意」も「故意」の一種であり、それが認定されれば、故意犯が成立することは当然のことではある。

 しかしながら、そもそも、故意は人の内心の心理的状態であるために、具体的な認定は極めて難しい。実際の裁判において、被告人が故意がなかったと争うような場合には、その犯罪行為が行われた際の客観的状況や、犯罪行為時の動機等を総合的に考慮して判断しているのが実情である。

 特に、「未必の故意」の認定は、裁判に提出された証拠からは、確定的故意を認定することができない場合になされることになる。その判断は、弁護士から見れば、時には、「その事案において、裁判官において、故意があったと認定したい」と考える場合に、「未必の故意」を認めているように見えることが多い。つまり、結論を先取りした上で、後から理屈を考えているのではないかと見えることがある。

 これを別の観点から言うと、「未必の故意」の認定は、証拠による「事実認定」というよりも、裁判官による「法的評価」(規範的評価)に限りなく近いのではないかと思われる。

 そのため、判決において「未必の故意」があったと認定された被告人本人にとっても、その判断は自分の実感からは遠くかけ離れたものであると思うのではないだろうか。

 しかも、そのようにして認定された「未必の故意」を前提として、死刑判決を言い渡されるとしたら、被告人の立場からすると、あまりにも、自分の事件当時の実感からは、かけ離れたものになっているのではないか。
 それは、裁判官が、その被告人に対しては死刑判決が相当であるから「未必の故意」を認めたのではないかという誤解や疑問すら抱かさせる可能性があるのではないだろうか。

 そもそも、この「未必の故意」という概念は、普通の市民にとっては、極めて分かりにくい概念であるということができる。裁判員制度が2009年から開始されることになっているが、裁判員は、「未必の故意」があるかどうかを、果たして適切に判断することができるのであろうか。
 ちなみに、裁判員制度に関する様々にニュース等を見ていると、この「未必の故意」という用語は、真っ先に裁判員に対して使ってはならない法律用語だとされているという。

 しかしながら、それは、単なる「用語」が分かりにくいというだけの問題ではなく、そもそも、その概念自体が、普通の市民にとって、あまりにも分かりにくい概念である点に問題があるのではないだろうか。
 それは、上述したように、裁判官による「事実認定」ではなく、裁判官による「法的評価」としてこの概念が運用されてきたことと決して無関係ではないはずである。

 さらに、「未必の故意」という概念を仮に認めるとしても、それを前提に死刑判決を言い渡すことについては、少なくとも慎重な姿勢をとるべきではないかと考えられる。

 時あたかも、政府から「基本的法制度に関する世論調査」の結果が発表され、国民の8割以上が死刑制度を容認していると報道されている時ではあるが(この世論調査の問題点については、辺境通信さんの「内閣府の死刑世論“操作”に加担するマスコミ」参照)、改めて、具体的な死刑事件について、目を向ける必要があるのではないだろうか。

 上述したように、「未必の故意」があると認定されて死刑判決を受ける被告人は、その死刑判決に納得することはできないのではないか。このような具体的な議論を抜きに、抽象的に、死刑廃止の是非を議論することは、あまり生産的なことではないと思われる。ところが、世論調査でも、抽象的な設問があるだけで、多くの市民は、死刑判決が言い渡されている裁判の内容に関心がなさすぎるように思われる。

 私たちは、改めて、裁判所は、どのように事実を認定した上で、死刑判決を出しているのかについて、具体的に知る必要があるのではないか。それを踏まえた上で、死刑廃止の是非について、具体的な議論を行うことが、これまであまりにも不足していたのではないだろうか。そして、そのことが、死刑廃止の是非をめぐる議論があまり実りあるものにならなかった原因の一つだったのではないかと思われてならないのである。

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「刑事裁判」カテゴリの記事

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現在の日本人の考え方が甘すぎる結果が、この毎日のように起こる殺人事件。というか普通の人が死刑と思っても一般常識を知らない、裁判官、非現実的な世界で勉強をしネットでエロサイトばかり見ていた仮想世界に生きている裁判官によって裁かれているのが納得いかない。現に過去に何人もの屑裁判官が犯罪を犯し
(性犯罪がらみが多い)ている。今後裁判官は過去の職歴を優遇し、職歴なしの世間知らずの人間にはやらせないほうがよい。変人が多い職場は変人しか育たない。

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Listed below are links to weblogs that reference 未必の故意で死刑判決を出してよいか?:

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