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2009.07.25

殺人罪等についての公訴時効の廃止に反対する

 公訴時効のあり方をめぐって議論が巻き起こっている。 

 公訴時効については、2004年4月19日から7月30日までに法制審議会刑事法(凶悪・重大犯罪)部会が開かれて審議され、死刑に当たる罪についての公訴時効を、それまでの15年から25年に延長するなどの改正案が諮問され、同年秋の臨時国会で刑事訴訟法改正案(刑訴法250条の改正)が可決・成立し、2005年1月1日以降に発生する犯罪について新たな公訴時効が適用されている。

 ところが、それからまだ数年しか経過していないにもかかわらず、昨年の秋以降、被害者遺族の中から公訴時効の撤廃を求める運動が起こり、2009年2月28日には、国内外の16事件の遺族20人が参加して、「(そら)の会」を結成し、時効制度の撤廃・停止の実現などを求める運動を開始し、マスコミでも大きく取り上げられた。

 法務省は、2009年1月から、「凶悪・重大犯罪の公訴時効の在り方に関する省内勉強会」を開催し、同年3月末に中間とりまとめを行って公表し、 その後、パブリックコメント手続に準じた意見募集手続を行うとともに、被害者団体、警察庁、日弁連ゆ研究者から意見を聴取して、同年7月15日付けで、「凶悪・重大犯罪の公訴時効の在り方について~制度見直しの方向性~」と題する最終報告書を発表した。

 法務省勉強会の最終報告書においては、①人の生命という最も重要な個人的法益を奪った殺人罪などの重大に生命侵害犯については公訴時効を廃止す る、②それ以外の罪についても公訴時効期間を延長する方向で見直す、③刑の時効についても見直す、③①の見直し案を現に時効が進行中の事件に対して適用す ることは憲法上許されると考えられるが、その当否については更に慎重に検討する必要がある、との結論を述べている。

 法務省の最終報告書がもっとも強調しているのは、国民の意識の変化である。
 すなわち、「殺人等の重大な生命侵害犯については、その刑事責任の追及に期限を設けるべきではなく、事案の真相をできる限り明らかにすべきであるという国民の意識は、現時点において相当強く示されている。」と述べられている。

 しかしながら、法務省の勉強会は、ほとんど被害者団体(宙の会を含む7団体、反対する意見の団体からは意見を聞いていない)からの意見を聞いただけで、反対している団体等としては日弁連以外の意見を聞いていないし(刑事法研究者についても、どちらかという賛成側の1名しか意見聴取していない)、 パブリックコメント手続に準じた意見聴取(2009年5月12日から6月11日までの1ヶ月間に実施)においても、寄せられた意見は341件に過ぎず、そ の多数が賛成意見だったからと言って、そのサンプル数の少なさ等からして、それをもって「国民の意識」だとするのは無理がある。

 そもそも、公訴時効は、被疑者が長期間にわたって訴追されなかったという事実状態を尊重して、国家の刑罰権を制約して、訴追を禁止する制度である。

 そ こでは、被疑者が置かれている事実状態が重視されるべきであり、長期間にわたって訴追されなかった被疑者が、突然に逮捕・勾留されて訴追されることによっ て、自分の無罪を証明するためのアリバイ証人の記憶が薄れたり、死亡や行方不明になるなどして、十分に防御活動ができなくなることに鑑みて、国家による訴 追そのものを制限しようとするものである。

 すなわち、公訴時効制度は、被疑者の防御権を保障する制度であり、それを被害者遺族の声や国民の声を理由に一方的に奪うことは許されない。

 特に、今回の法務省勉強会の最終報告書は、殺人罪等の生命侵害犯についての公訴時効の廃止を提言しているが、これは完全に被疑者の防御権を奪うものであり、到底、許されないと言わなければならない。

 今回の最終報告書は、被疑者の防御権よりも国民の意識の方を優先させているが、そこには、「犯人の逃げ得を許さな い」という観念があると考えられる。しかしながら、そもそも、逃げているとされる者が本当に「犯人」かどうかは、その者の刑事裁判において、証拠によって 判断されるべき事柄であり、最初から「犯人」と決めつけた上で、「逃げ得」を許さないということから被疑者側の利益や立場を一切考慮しなくても良いという 論理は極端であり、破綻していると言わざるを得ない。

 法務省勉強会の最終報告書は、全ての事実関係については検察官が挙証責任を負っており、被告人に不利益に変更するものではないと主張しているが、99.9%以上の有罪率である日本の刑事裁判においては、事実上、被告人が無罪を証明しない限り無罪判決は出されないし、アリバイ正当防衛などの主張は被告人側が主張・立証責任を負っており、それに必要な証拠は、長い時間の経過とともに全て散逸して、何も利用できない可能性があり、無罪を証明できないために有罪とされてしまい、冤罪を生む危険性があることは否定できない。

 今回の法務省勉強会は、自民党の早川忠孝衆議院議員(法務省政務官)が主導し、自らの手柄を立てるために被害者団体の意見に迎合する意見をまとめようとした動きがあり、また、森英介法務大臣も、自分の手柄にするために、結論を急いだ節がある。

 すなわち、当初は、2009年8月末頃までに最終報告書をまとめる予定だと伝えられていたが、7月21日に衆議院が解散されることが決まった後、その前の週に最終報告書が発表されており、これを政治的に利用しようとする観点から結論が急がされたことが窺えるのである。

 公訴時効期間を10年延長した改正から、わずか4年足らずで、今度は廃止を提言することは、立法のあり方として余りにも拙速であるし整合性がないことであり、政治家による被害者の声の政治利用としか考えられない。

 公訴時効のあり方については、国民の世論を正確に調査するとともに、廃止や延長に反対している団体や個人の意見を広く聴取した上で、冷静かつ慎重な議論がなされるべきであり、殺人罪等についての公訴時効の廃止には強く反対する。

【追記】

 法務省は、2009年9月17日に行われる予定の法制審議会への公訴時効の見直しについての諮問を見送る方針だと報道された((2009年8月26日03時14分  読売新聞)。

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「刑事立法」カテゴリの記事

Comments

> 自民党の早川忠孝衆議院議員(法務省政務官)が主導し、自らの手柄を立てるために被害者団体の意見に迎合する意見をまとめようとした動きがあり、また、森英介法務大臣も、自分の手柄にするために、結論を急いだ節がある。

「冤罪を生む可能性がある」と言っている人間が、何の証拠もないのに上のように個人名を上げて、他者を侮辱するのはおかしいのではないか?

確かに、そのような決めつけは、「冤罪を生む可能性がある」という言葉に説得力はもたらしているので、ある意味正しいのかも知れないが。

Posted by: ATM | 2009.07.26 at 04:20 AM

今の刑訴法読んで見たって、公訴時効はないようもんだと思うんですけど、無くせってホント・・・w


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