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2007.03.18

ライブドア事件・堀江元社長の事件における公判前整理手続と連日的開廷の功罪

 3月16日、東京地方裁判所刑事1部(小坂敏幸裁判長)は、ライブドアの元社長であった堀江貴文氏の粉飾決算に関する証券取引法違反被告事件について、懲役2年6月の実刑判決を言い渡した。弁護人は判決を不服として即日控訴し、再保釈も認められている。

 この判決の内容自体については既に多くの論評があるが、ここでは、この事件において公判前整理手続がとられ、公判では極めて短期集中のスピード審理が行われた点に着目して、その功罪をどのように見るべきかについて考えてみたい。

 刑事訴訟法が2005年11月から改正され、公判前整理手続とそれに伴う連日的開廷が導入された。これは、2009年から始まる裁判員制度のための準備段階として導入されたものであり、既に一部の事件では公判前整理手続がとられており、その運用は着実に進んでいる。

 堀江氏の刑事事件では、この制度の運用が始まったばかりの比較的早い段階で、公判前整理手続がとられたことからマスコミでも話題になった。

 公判前整理手続について、フリー百科事典『ウィキペディア(Wikipedia)』は、次のように簡潔に説明している。
 

裁判官、検察官、弁護人が初公判前に非公開で協議し、証拠や争点を絞り込んで審理計画を立てる。検察官は証明予定事実を明らかにし、証拠を開示。弁護人も争点を明示し、自らの証拠を示さなければならない。手続きには被告人も出席できる。採用する証拠や証人、公判日程はこの場で決まり、終了後は新たな証拠請求が制限される。初公判では検察、弁護側双方が冒頭陳述を行い、手続きの結果を裁判所が説明する。公判は連日開廷が原則。

 弁護人の立場からすれば、この手続をとる場合には、裁判で予定する主張や請求する証拠を、全て、公判前整理手続の段階で出し切らなければいけないという点が最大の特徴である。

 従来は、公判で検察官立証が終了した時点で、被告人・弁護人の主張を明らかにして、その時点で証拠を請求すれば足りていた。それと比較すると、その準備が大幅に前倒しされたことになる。しかも、公判前整理手続の段階で証拠調べを請求していなければ、「やむを得ない事由」がない限り、公判段階で新たに証拠調べを請求することは許されず、この点が裁判所では極めて厳しく運用されている。

 公判前整理手続は、公判を担当する裁判官が主宰することから、この制度が作られた当初から、起訴状一本主義予断排除の原則に反するのではないかという疑問が呈されていた。
 実際、公判前整理手続では、検察官と弁護人の双方から、公判で行う主張と証拠調べ請求が全てなされ、その採否まで決定することから、裁判官はある程度の心証を採っているのではないかという疑問を感じるところである。

 さて、堀江元社長の事件では、2006年2月13日に起訴され、その後、合計9回の公判前整理手続が行われた。その後、同年9月4日に第1回公判が開かれ、以後、2007年1月までに、合計27回の公判期日が集中的に行われた。

 この事件について評価されるべき点があるとしたら、堀江元社長について、早い段階で保釈が許可されたという点があろう。
 従来、否認事件では容易に保釈が認められず(検察官立証の終了まで認められないことが多い)、長期間の身体拘束が行われることが多かった(そのために「人質司法」と呼んで批判されている)。
 多くの否認事件と比較すると、堀江元社長の保釈はかなり早かったと評価することができる。

 この保釈については、この事件では、予め双方の主張・立証が整理される公判前整理手続が採用されたからであると指摘されており、この手続をとった場合には積極的に保釈を認める運用をすべきであるとする裁判官の論文も発表されている(松本芳希「裁判員裁判と保釈の運用について」ジュリスト1312号)
 しかしながら、実際には、公判前整理手続をとったからといって、被告人が全て保釈されている訳でもないようであり、身体拘束からの早期解放だけを狙って公判前整理手続をとることにはリスクがある。

 公判前整理手続がとられる場合には、これまでと比べると、証拠開示が広く認められるようになったと指摘されている。堀江元社長の事件でも復元されたメール等相当な量の証拠開示があったようである。
 しかしながら、全面的な証拠開示は認められていない。そのために、膨大な捜査員を擁する警察・検察によって収集された証拠の全てを把握している検察官は、依然として圧倒的な優位性を保っている。

 今回の判決は、検察官の主張をほとんど採用した上で(但し、堀江元社長が主導したとの主張は否定している)、有罪とした上で、多くの識者が予想に反して、執行猶予を付さない実刑判決を言い渡した。
 この点については、過去の粉飾決算事件が執行猶予になっていることとの関係で、極めて厳しい判断であるとの評価が一般的である。
 東京新聞は、堀江元社長主導説を否定しながら実刑にしたのは、この事件の本質を、投資家への「詐欺行為」と位置づけた点にあるとの解説もしている(東京新聞2007年3月17日付朝刊)。

 裁判所は、これまでの多くの裁判例と同様に、公訴事実を否認する被告人の行為を極めて否定的に捉えて、「反省していない」と否定的に評価している。しかし、「事件をやっていない」という被告人が否認することは当然であり、否認すること自体を悪い情状と捉える古い考え方については、裁判官の意識が以前から何も変わっていないと強く感じる。

 今回の事件では、結論だけを見れば、残念ながら、弁護人による防御活動はあまり功を奏しなかったことになる。主任弁護人の高井康行弁護士は、司法制度改革推進本部の裁判員制度・刑事検討会のメンバーの一人であり、いわば公判前整理手続を作った側の人物であり、その制度について熟知していた者である。

 その弁護人をもってしても、有罪の実刑判決という最悪の結果が出たことからすると、改めて、公判前整理手続連日的開廷は、被告人にとって本当に役に立つ制度なのか?という根本的な疑問を感じた。

 そもそも、公判前整理手続をとるためには、極めて短期間のうちに、被告人・弁護側の主張・立証の方針を固め、連日的開廷による集中審理に堪えられるためには、優秀な弁護士を数名雇うことが不可欠であり、高額な弁護費用を支払えることが必要になる。

 それは、堀江元社長のような経済人であれば可能であろうが、普通の市民では、到底不可能であり、そうなると、極めて不十分な弁護体制の下で、公判前整理手続連日的開廷が粛々と行われることになる。

 そうなると、圧倒的な権力と物量を有する検察側が有利となり、ただ粛々と短期間で有罪判決が出されるようになるだけになってしまうのではないだろうか。
 つまり、公判前整理手続連日的開廷は、従来以上に、被告人・弁護人と検察官との格差を広げ、検察官の優位性を増しただけではないか。

 今回の判決は、改めて、公判前整理手続連日的開廷の功罪(特にその「罪」の部分)について考える材料と契機を提供してくれた。
 裁く側の裁判所の意識の変革なくしてこの制度が運用されても良いことはないし、被告人・弁護人と検察官との間にある大きな格差を変えずして、この制度が本格的に運用されるようになると、むしろ被告人にとって不利に働くだけであることが明らかになったと言える。

 本年4月から、検察当局は、全国の地方検察庁で、裁判員対象事件の全てについて、公判前整理手続の適用を求めていく方針であると伝えられており(1月24日配信の読売新聞記事)、4月以降、否が応でも、刑事裁判のあり方が大きく変わらざるを得ない。

 元々、公判前整理手続連日的開廷は、裁判員裁判のために導入された制度であったことを考えると、まだ裁判員制度が始まってもいないのに、本格的に、公判前整理手続連日的開廷が導入するのは手段と目的を転倒させるものではないだろうか。

 いずれにせよ、私たちは、今回の事件を通じて、公判前整理手続連日的開廷のあり方について、改めて見直す必要に迫られているのではないだろうか。

【Today's Back Music】
 Inger Marie/By Myself(COCB-5358)
  ノルウェーの女性ジャズ・ボーカリストの昨年11月に出たアルバム。渋いボーカルとうるさすぎないがツボを押さえた演奏がマッチしている。最近の女性ボーカルの中で出色だと思う。

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