池田信夫 blogに「迂回献金と『逆国策捜査』」というエントリがアップされました。
司法関係の記述についてはときどきピンぼけ的な記述のあるブログですが、このエントリはかなりポイントをついたエントリだと思います。ただし「逆国策捜査」というネーミングはやっぱりピンぼけだと思いますが。
小沢氏の政治資金管理団体の迂回献金事件と日歯連事件を比較して、どなたかの見解を紹介して
この事件では、日歯連や橋本派事務所などの家宅捜索で押収された文書から、閣僚級を含む多数の政治家に迂回献金が行なわれていた証拠があがったのだが、その数があまりにも多かったため、「やり始めたら自民党の国会議員の半分ぐらい摘発しなければならず、検察がパンクしてしまう」という判断から、最高検が見送ったのだという。
と書いておられますが、「検察がパンクしてしまう」というのはまさにそのとおりだろうと思います。
これと同様のことが脱税事件の摘発にも言えます。
法人税法違反として刑事事件として起訴されるのは、せいぜい中小企業どまり（ほとんどは規模的には零細企業）で、大企業と呼ばれる規模の会社では、修正申告の話はよくニュースになりますが刑事立件されて起訴されたという話は聞きません。
これは、査察と検察の人的資源の限界が最大の原因だと言われています。
査察の人員を今の１０倍くらいにすれば、脱税摘発による税収の増加は兆円単位で見込めるのではないかと思います。
人件費の増加を十分カバーするのではないでしょうか。
ただし、これを起訴するとなると査察の増員だけでは足らず、検事を増員しなければなりません。
東京地検特捜部の陣容が今の１０倍から２０倍の規模であれば、日歯連事件も徹底解明されたかも知れません。
それで、時の政府がひっくり返ったとしても、それで日本の政治がひっくり返るわけではないと考えれば、検察は平気で手をつけたと思います。検事総長次第という面はあるかも知れませんが。
要するに、検察の最大の弱点は「人手不足」ということです。
ですから、日歯連事件が中途半端に終わったことをもって「逆国策捜査」というのは的外れということになります。
追記
池田信夫氏が、コメント欄においてこのエントリに触れておられます。
しかし、やはり刑事司法に対する理解不足が伺われます。
人ひとり、特に有力な政治家を起訴するときの証拠固めの困難さというものが理解されていないのでしょう。
元検事の郷原信郎氏の見解を紹介します。
理解に苦しむこの時期の小沢氏秘書の逮捕 元検事・郷原信郎氏インタビュー（ウェブ魚拓）
全面的に同意するわけではありませんが、政治資金規正法違反を立件・起訴することが容易ではないことは同感です。
池田氏は、当然起訴できるものを検察上層部が起訴させなかったかのニュアンスでコメントされていますが、これについては池田氏自身がfinalvent氏に向けた批判である「だからこの問題は、finalvent氏のいうほど単純ではない。」のfinalvent氏を池田信夫氏に置換してもそのまま妥当するように思われます。
いずれにしても、証拠関係の詳細を知らない人間の意見は憶測にとどまらざるを得ません。
さらに追記
日歯連 (池田信夫) 2009-03-09 02:13:23
池田信夫blog における池田氏のコメントですが、私のほうにやや失礼な物言いがあったにもかかわらず、根本問題に関するご理解はいただけているようです。
脱税で刑事事件になるのは、中小企業、大企業はならない、とさらっと
書かれています。人手不足が理由にせよ、結果的弱いものいじめってこ
とになりませんか。
それで、時の政府がひっくり返ったとしても、それで日本の政治がひっくり返るわけではないと考えれば、検察は平気で手をつけたと思います。検事総長次第という面はあるかも知れませんが。
と書かれていますが、検察は時の権力に対する自律性があるとも読めますが、検事総長
次第にどこをほじくるか変わるというような気にもさせられます。
それはとっても怖いという印象ですし、法の平等なんかないやんとやっぱり思うのです
が。
＞検事総長次第にどこをほじくるか変わるというような気にもさせられます。
検事総長の恣意的判断でこのようなことはできません。
なぜなら、検察が起訴するためには、弁護士と裁判官の批判に耐えて有罪を立証できる証拠が必要だからです。
そして、検察は起訴の見込みがないのに強制捜査に着手することはありません。
検事総長について懸念があるのは、ブレーキをかけすぎる可能性についてです。
いろんなタイプがいますから。
ロッキード事件のとき、米国から厳格な守秘義務負担の資料を取り寄せるか否かの御前会議で、「資料を取り寄せてみないと立件できるかどうかわからないし、取り寄せせて立件できなければ国民の信を失い、守秘義務の関係で弁明もできない、取り寄せもしなければ最初からやる気がないと国民の信を失う」という状況下だったそうです。そのとき、「資料を取り寄せる。立件できなかったら私や首脳の首を差し出して国民に詫びる。検察は瓦解するが再建は後世の若い世代に委ねよう。」と悲痛な覚悟で米国資料を取り寄せる決断をされた当時の検事総長が彷彿されます。
そういう日本であって欲しいです。m(_ _)m
モトケンさんのエントリ本文
（太字は引用者による）モトケンさんは決して「脱税事件として摘発」されるのは、中小企業ばかりと言っているのでは無い、このように私は読み取ります。（大企業といえでも修正申告のニュースはよく聞くとある）
国税当局は大企業も中小企業も同様に脱税を摘発し、重加算税など懲罰的な課税措置を行っている。ただし、国税庁の「脱税事件として摘発」した事件の全てにおいて、検察庁が「刑事事件として起訴」出来ている訳ではない。
刑事事件として起訴するためには、誰が税金を誤魔化した張本人なのか、刑事責任がある個人が誰なのか、検察が捜査によって絞り込まなければならない。中小企業の場合は会社組織や責任分担が単純であり、社長や経理責任者が脱税を指示していたと、個人の責任を問い易い。
ところが、大企業になれば組織も複雑になり、税務や経理に携わる社員や管理職も多数になっている。そうした多くの人間が絡むことで責任分担が分散され、特定少数の個人に脱税行為の刑事責任を帰することが困難になる。
もちろん組織が複雑な大企業の脱税事件と言っても、捜査に多数の人員を宛て、帳簿などの押収資料を徹底的に解析し、経理事務の流れを詳細に分析検証していけば、個人の刑事責任を問うこと（検察の起訴）は可能であろう。でも限られた検察の人手や労力を考えると、大企業であっても必ず個人の刑事責任を問えるまで捜査を尽くすことは、中小企業での事件と比較すると格段に効率が悪くなることは確かだろう。
そうした結果、刑事訴追されるのは中小企業の社長や経理責任者ばかりで、大企業の社長や経理責任者は脱税でムショ入りすることはマレ、という現実が生じてしまう。これはまさしく「費用対効果」という、経済学でもお馴染みの現象であって、検察が組織として意図した結果でもなく、また意識して行ったことでもないと言える。つまり国策ではなく結果論としての現象である。
故に池田氏がご自分のブログで、検察が意図的に捜査対象を選んでいると受け取れるような文章を書き、その中で「逆国策捜査」というネーミングされるのは、少々印象操作の意図を感じ適切とは言えないと思う。今回の池田氏のブログでの解説＆批判は、いささかピントはずれというモトケンさんのご意見に同意です。
政界の汚職立件にからんで、政界、マスコミを巻きこんで、検察内部で激しい派閥闘争が行われた、岸本ＶＳ馬場という懐かしい話がありましたね。
http://www.geocities.co.jp/HeartLand-Suzuran/7136/hitori14.html
追記して池田信夫blogにトラバしました。
検察の意図として、以下の２つがありそうな気がするんですが、やはり２．でないと、野党第一党党首の秘書逮捕には至ってはいけないと思うし、人騒がせな・・・と思います・・・。
１．大した事件じゃないが、秘書を微罪で逮捕し、政治家への警告と、国民へのアピールを行おうとした。政局など読まなかったので、反応の大きさにびっくりしている。さらに官房副長官が要らないことを言ったために、予定外の自民党議員まで取り調べを行わなければならなくなり、うんざりしている。
２．小沢代表と西松建設との贈収賄を立件できる見通しがあるので、まず秘書を微罪で逮捕した。官邸は「小沢の事件であり、自民党議員とは無関係」と知っており、官房副長官の発言となった。
ピント外れであれば、スルーして下さい。
秘書の行為を「微罪」と見るのは妥当でないと思います。
贈収賄の温床とならないようにする規制の積み重ねである「政治資金透明性確保」違反が微罪なら、贈収賄も微罪でしょう。これが日本の国民の感覚かと思うと残念です。
モトケンさま
コメントありがとうございます。
小沢代表の逮捕・起訴には至らず、秘書も罰金刑程度で治まった場合には、「微罪」のような気がしました・・・。
私自身が、「もともと逮捕は大袈裟だし、もし虚偽記載が事実であったとしても、小沢氏側だけが逮捕されるのはおかしい」という報道の雰囲気に流されているのかもしれません。
ハスカップさま
了解です。見識を改めます。
今回は、「合法的に受け取りました」ということと思います。
初めから、法律に穴があるんだろうな・・・と。
とすると、元の法律に無理があるのに、本当に有罪にできるの？っていうことが疑問でした。
さらに、重大な犯罪行為なら、小沢氏秘書の逮捕だけではバランスを欠くと思います。
その意味で、官房副長官の発言はまさに失当と思います。
（「全員しょっぴかれると思います」と言ったら、「ああ、結構な罪なんだなあ」と思ったことでしょう。。。）
はじめましてモトケンさん。
そもそも「（政党を通じた）迂回献金」は違法なのでしょうか？
合法だが悪質な脱法行為と私は認識していたのですが、池田さんは違法だが検察が見逃したと理解してるようです。
「迂回」という言葉だけでは判断できません。
具体的に何が行われたのかを検討しなければなりません。
私としては、秘書と西松建設の総務部長が直接会って献金額や献金者の名義を決めたというような事実があれば（そのような報道がありますが）、相当違法判断に傾くと思っています。
了解です。ご理解いただけてうれしく思います。もとより特別法違反（食品衛生法違反とか）は微罪が多いので誤解されるのも無理はないかと思います。m(_ _)m
＞「迂回」という言葉だけでは判断できません。
言葉が足りず申し訳ありません。
池田さんのエントリに有る以下のような場合の話です。
＞政党への企業献金は合法だが、企業は特定の政治家の便宜供与を求めて献金するので、政党に献金しても意味がない。だから献金するとき、自民党の事務局に「これは＊＊先生にお願いします」といって渡し、それを事務局が宛て先ごとに振り分けたという。
上記のやりかたで「資金管理団体に対して事実上の企業献金」が可能だと思っていたのですが、これも政治資金規正法違反になるのでしょうか？
「企業献金という認識に立っていたとすれば、政党支部でそれを受領すればなんの問題も起きなかったわけでして」という発言から小沢氏は全く合法的な行為と考えているようです。
西松一社だけで、これだけの政治家の疑惑が出てくるわけですから、
他のゼネコン、他の企業を考えると、同様のダミー政治団体は無数にあるんでしょうし、
政治家や検察の間では当たり前のことだったんじゃないでしょうか。
微罪かどうかはわかりませんが、「来年分からアウトにします」とかそういう解決は
ないんですかね。
検察にそんな義務はないんでしょうが、あえて罪を作る必要もないのではと思います。
パチンコの景品交換所が急に違法と言うことになれば大混乱になるでしょう。
池田氏のブログのような場合を「虚偽記載」と言い切るのは難しそうです。
「言い切る」というのは裁判官を説得できるという意味です。
＞「企業献金という認識に立っていたとすれば、政党支部でそれを受領すればなんの問題も起きなかったわけでして」
というのは、西松建設が西松建設の名前で献金している限り、という条件付きでそうだと思いますが、そう思っているのであればそうすればよかったのです。
今回の事件は、西松建設が西松建設の名前を出さないようにするためにやったものと認められますので、池田氏のブログの例とは異なることに注意しなければなりません。
＞政治家や検察の間では当たり前のことだったんじゃないでしょうか。
たぶんそうでしょう。
ですが、あなたは大事なことを見落としています。
それは証拠です。
「しっぽ」と言ってもいいです。
数多くある同種事件の中から立件できるかどうかを決めるのは、検察が証拠を手に入れることができるかどうかです。
しかも裁判の場で十分な証明力を発揮できる証拠を手に入れる必要があります。
単なる噂レベルの話では足りません。
今回、小沢氏の秘書はしっぽを捕まえられてしまったのです。
そのしっぽが小沢氏につながっているかどうかは今後の捜査結果次第でしょう。
なんか切込隊長ＢＬＯＧで紹介されてましたぜ。
http://kirik.tea-nifty.com/diary/2009/03/post-8342.html
それはともかく、今回の件は駐車違反の問題に近いかも？
駐車違反はみんなやってるんだけど、人員の問題で全部摘発できない。結局ばれたやつは運が悪くて不公平な結果になってるのだけれど、公平に全員摘発しないことにすれば違法駐車し放題だし、全員摘発するのは無理。結局悪いことやってるやつを見つけたら捕まえることで一罰百戒の効果に期待するのが現状のリソースでは最善・・・てね
小沢さんが知らなかったとしても、第１の秘書が有罪確定すれば政治責任はとらねばなりません。つまり辞職は免れないかと思われます。
今日はやけにアクセスが多いと思ったら（＾＾；
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Between me and my husband we've owned more MP3 players over the years than I can count, including Sansas, iRivers, iPods (classic & touch), the Ibiza Rhapsody, etc. But, the last few years I've settled down to one line of players. Why? Because I was happy to discover how well-designed and fun to use the underappreciated (and widely mocked) Zunes are.
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If you're still on the fence: grab your favorite earphones, head down to a Best Buy and ask to plug them into a Zune then an iPod and see which one sounds better to you, and which interface makes you smile more. Then you'll know which is right for you.
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The new Zune browser is surprisingly good, but not as good as the iPod's. It works well, but isn't as fast as Safari, and has a clunkier interface. If you occasionally plan on using the web browser that's not an issue, but if you're planning to browse the web alot from your PMP then the iPod's larger screen and better browser may be important.
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I'll gear this review to 2 types of people: current Zune owners who are considering an upgrade, and people trying to decide between a Zune and an iPod. (There are other players worth considering out there, like the Sony Walkman X, but I hope this gives you enough info to make an informed decision of the Zune vs players other than the iPod line as well.)
Zune and iPod: Most people compare the Zune to the Touch, but after seeing how slim and surprisingly small and light it is, I consider it to be a rather unique hybrid that combines qualities of both the Touch and the Nano. It's very colorful and lovely OLED screen is slightly smaller than the touch screen, but the player itself feels quite a bit smaller and lighter. It weighs about 2/3 as much, and is noticeably smaller in width and height, while being just a hair thicker.
The Zune concentrates on being a Portable Media Player. Not a web browser. Not a game machine. Maybe in the future it'll do even better in those areas, but for now it's a fantastic way to organize and listen to your music and videos, and is without peer in that regard. The iPod's strengths are its web browsing and apps. If those sound more compelling, perhaps it is your best choice.
Apple now has Rhapsody as an app, which is a great start, but it is currently hampered by the inability to store locally on your iPod, and has a dismal 64kbps bit rate. If this changes, then it will somewhat negate this advantage for the Zune, but the 10 songs per month will still be a big plus in Zune Pass' favor.
I'll gear this review to 2 types of people: current Zune owners who are considering an upgrade, and people trying to decide between a Zune and an iPod. (There are other players worth considering out there, like the Sony Walkman X, but I hope this gives you enough info to make an informed decision of the Zune vs players other than the iPod line as well.)
Apple now has Rhapsody as an app, which is a great start, but it is currently hampered by the inability to store locally on your iPod, and has a dismal 64kbps bit rate. If this changes, then it will somewhat negate this advantage for the Zune, but the 10 songs per month will still be a big plus in Zune Pass' favor.
Sorry for the huge review, but I'm really loving the new Zune, and hope this, as well as the excellent reviews some other people have written, will help you decide if it's the right choice for you.
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