微罪だという認識を前提とする発言がいくつか目につきました。
ジャーナリストら検察捜査批判のシンポ（asahi.com 2009年3月16日1時39分）
田原氏は「民主党代表に深刻なダメージを与えた。乱暴きわまりない。政治資金規正法だけでの起訴なら検察の敗北だ」と批判。民主・仙谷氏「有罪立証は難しい」 小沢氏秘書逮捕事件（asahi.com 2009年3月15日18時56分）
民主党の仙谷由人元政調会長は１５日のテレビ朝日の番組で、西松建設の違法献金事件での小沢代表の秘書逮捕について、「無理筋を事件にしようとしている形跡もある。こんな大捕物帳をするような事件じゃない。（政治資金規正法の虚偽記載容疑にとどまらない）事件として成立させないと、検察の大失態になる。なかなか有罪立証は難しい」と述べ、今回の捜査に疑問を投げかけた。
最近のいくつかのエントリで同様の問題提起を何度かしましたが、政治資金報告書に虚偽の記載をする、つまり真実を隠蔽することは微罪と言うべきなんでしょうか？
たしかに１万円や２万円の虚偽記載なら少額という意味で微罪と言っていいかも知れませんが、１０００万円を超える虚偽記載を、私は微罪とは言い難いと思います。
政治と金を巡る問題がこれまで延々と議論され、その中で政治資金の透明性を確保するために政治資金規正法が定められ改正されてきました。
何のために透明性を確保するかというと、
第１条 この法律は、議会制民主政治の下における政党その他の政治団体の機能の重要性及び公職の候補者の責務の重要性にかんがみ、政治団体及び公職の候補者により行われる政治活動が国民の不断の監視と批判の下に行われるようにするため、政治団体の届出、政治団体に係る政治資金の収支の公開並びに政治団体及び公職の候補者に係る政治資金の接受の規正その他の措置を講ずることにより、政治活動の公明と公正を確保し、もつて民主政治の健全な発達に寄与することを目的とする。
という目的を達成するためです。
要するに、国民が政治を託するに値する政治家であるかどうかを判断するための重要な資料の一つを国民に提供するためにあると考えます。
そのための資料である報告書に虚偽を記載するということは国民を欺くことであり、民主主義の根幹を揺るがすものであると考えるべきではないのかと思うのですが、皆さんいかがでしょう？
少なくとも、本件を微罪という人は、政治と金の問題についてあまり潔癖な人ではないということは言えると思います。
「微罪」に絶対的な基準はありませんので、何かと比較してということですね。
まず不記載や過少記載なら裏金作りですが、形としては全額記載していた、
つまりオモテの金です。
そして政治資金規正法の抜け穴により、企業献金だとしても政党支部で
受け取っていれば違反にならないんですよね？
これが「形式的」と言われる所以じゃないかと思います。
これを踏まえて、過去に国会議員や秘書が逮捕された事件と比較すると、
「軽微」だと感じる人がいるのではないでしょうか。
＞つまりオモテの金です。
本件で問題になるのは、金の出所なんですよ。
いわばマネーロンダリングの一種です。
この金の本籍地は裏金です。
＞そして政治資金規正法の抜け穴により、企業献金だとしても政党支部で
受け取っていれば違反にならないんですよね？
だったらそうすればよかったんですよ。
でもそうしなかった。
何故か？そんなことをしたら西松の名前が突出してしまうからです。
そうならないように、ダミーの政治団体をでっち上げて西松の名前を国民の目から隠した。
「政治資金の公開」と言う原則を真っ向から踏みにじるものです。
初めて投稿します。
今回のマスコミの「微罪」という言葉に憤りに近い違和感を覚える人間です。
実態として微罪であるかどうかという議論もそうなのですが、それ以上に「どの口がそれを言うのか」との思いが強いです。安倍内閣以降、「政治と金」の言葉とともに、少しでも怪しいと思えば、違法かどうか疑問のある場合でも「道義的責任」という超法規的論理で閣僚の首を取ってきたのが民主党とマスコミだったと思います。
ならば小沢氏に億単位で違法性が指摘された時に「微罪」とは口が裂けてもいえない筈だと思うのですよ。
微罪云々以前にあまりにも法の適用がご都合主義で、恐ろしさすら感じます。
＞この金の本籍地は裏金です。
それは西松内部の裏金の話ですよね。
政治資金規正法で金の出所まで確認する義務があるのでしょうか。
私が書いたのはヤミ献金－オモテ献金という意味です。
あなたが言っているのは要するに受け取った側に故意があるかどうかという問題です。
故意がなければ犯罪は成立しません。
しかし、故意があれば犯罪が成立します。
＞政治資金規正法だけでの起訴なら検察の敗北だ
モトケンさん
田原氏が無罪を前提とした発言をしてる可能性はありませんか？
横から失礼。
＞田原氏が無罪を前提とした発言をしてる可能性はありませんか？
無罪を前提として話すならば、検察が証拠を固め、裁判官が逮捕状を発付した本件被疑者に係る政治資金規正法違反事件が無罪つまり嫌疑なしであることを論証する必要がある。
そういうことではなく田原総一郎は「事件的に弱い（悪質性が低い）事案で、野党第一党である民主党に多大なダメージを与えようとする検察のやり方は不当だ」と言いたいのだろう。
要は、本件政治資金規正法違反事件は、野党第一党であり政権奪取に王手を掛けている民主党（と言うか小沢氏）にとっては大した違法行為ではない、それよりも自民党を政権から追い落とすことの方が重要だということでしょうね。
いまいち話が見えないのですが…
今出ているのは、政治団体がダミーかどうかということと、
それを秘書が認識していたかどうかだけですよね。
引用された田原氏、仙谷氏もそれが前提だと思います。
今後、西松の裏金からヤミ献金が渡っていたとか、秘書が献金を
強要していたなんてことになると別の話です。
まず、どんな行為がどんな犯罪として問題にされているかを確認することが先決です。
今回は、報告書の記載が虚偽かどうかが政治資金規制法との関係で問題にされています。
そこでは、表とか裏ということではなくて、虚偽か虚偽でないかが問題になるのです。
わかりましたか？
客観的に虚偽か否か
＝政治団体が活動のないダミー団体であったか否か
→ダミーでなければ、金の出所が西松であっても問題ない
ダミーであった場合にのみ、故意が問題となる
秘書に虚偽記載の故意があるか否か
＝主観的にダミー団体であると秘書が認識していたか否か
田原氏や仙石氏が言っているのは、そもそもダミー団体であることの立証を検察ができるのか？という疑問だそうです。
故意の立証以前に、客観的事実の立証ができるのだろうか？と。
団体としての体裁を備え、一応の活動実績があれば、ダミー団体とは言えなくなってしまい、そこの立証が非常に難しいのではないかとある元検事のコメントを読みました。
政治資金規正法についてよくわかっていないので、もし上記の認識に間違いがあればご指摘ください。
ご指摘のように、まず「客観的に虚偽か否か」が問題になります。
そこがクリアできないと検察の捜査はそこで終わりです。
ただし、「報告書の記載が客観的に虚偽である」ことの前提として「政治団体が活動のないダミー団体である」ことが必要だとは思いません。
ここでダミー団体とは、名ばかりの空っぽの団体という意味で使っています。
虚偽かどうかの問題は、報告書に記載されている献金者名が正しいかどうかという問題です。
つまり、お金が、西松建設 → 政治団体 → 小沢氏側 というように流れたことが明らかになっている場合において、当該献金の献金者は、記載されている政治団体なのかそれとも西松建設なのか、という問題です。
この場合は、政治団体がダミー団体であることが立証できれば、それだけで西松建設が献金者であると認定することが可能です。
しかし、必ずしも政治団体がダミー団体と言えなくても、当該献金行為の際に、ダミーつまりパイプとして利用されただけであるということが立証できれば、その場合も献金者は西松建設である、つまり報告書の記載は虚偽である、と認定することは十分可能であると思います。
ダミー団体とダミーとして機能するということは別問題です。
例えば、小沢氏の秘書と西松建設の担当者が直接連絡を取り合って、政治団体の名前で献金しますというようなことを話し合っていたとしたら（そしてそれが立証できれば）、十分虚偽記載と言っていいと私は思います。
仙谷氏は何を根拠に「なかなか有罪立証は難しい」と言っているのでしょうか？
具体的な証拠はご存知ないと思うのですが。
先ず、虚偽記載と認められれば、「微罪ではない」に一票です。
次に、虚偽記載と認められなかったら、現在の政治資金規制法そのままでよしとする議員や政党には、「投票したくない」と思います。
税金から高額の報酬・経費を受け、法律や税金の使い道を決める人たちが、法やお金にルーズであってはならない、と思います。
一般市民より高い倫理観を持って「李下に冠を正さず」という言葉を肝に銘じるべきでしょう。
必ずしも「聖人君子」である必要はありませんが、政治活動に使うお金はクリーンでなければならない、と思います。
ですから、私は「微罪ではない」方に一票入れます。
なるほど、実質的に考えるとそうなるのが常識的な感じがします。
ただ、下記のような記事を読んで、「～が従来の考え方だったと思います。」という曖昧な表現に不安を抱きつつも、実質的な拠出者を記載しなければ意味がないものの「法律はまだそこまでは要求していない」というのを聞いて、そういうものなのかなぁと思ってしまいました。
政治資金規正法って難しい･･･。
週刊朝日2009年3月20日増大号（発売日：2009年3月12日）２０頁以下
「不可解な“微罪”での強制捜査 検察は違法性を立証できるのか
桐蔭横浜大学法科大学院教授、元検事・郷原信郎
私は検事時代、自民党長崎県連事件など多くの政治資金規正法違反事件を捜査してきました。その経験からすると、今回の検察の捜査にはいくつかの疑問があります。
まず、小沢氏側の会計処理は本当に政治資金規正法違反と言えるのかどうか。
この法律は、「寄附をした者」を収支報告書に記載することとしており、西松建設のＯＢが設立した２つの政治団体が寄附者として記載されています。
しかし、法律上、寄附の資金を誰が出したのかについては報告書に記載する義務がない。つまり、小沢氏の秘書が、西松建設が出したお金だと知っていながら政治団体の寄附と記載したとしても、それだけでは違反とは言えない。報道では、小沢氏の秘書が西松建設に請求書を送り、献金額まで指示していたとされていますが、それでもただちに違反とはならないのです。
政治資金規正法違反になるとすれば、寄附者とされる政治団体が実体の全くないダミー団体で、しかも、それを小沢氏側が認識していた場合です。捜査のポイントはこの点を立証できるかどうかですが、全国に数万とある政治団体の中には、政治資金の流れの中に介在するだけで活動の実態がほとんどないものも多数あります。団体の規約があって何らかの活動が行われていて、会計が独立していれば、一応、政治団体の実体があるというのが従来の考え方だったと思います。この点、西松建設の設立した政治団体がまったく実体がないダミーと言えるのかは、微妙なところです。
もちろん、政治資金の流れの透明性を高めるという政治資金規正法の目的から考えると、実質的な拠出者も収支報告書に記載して公表するのが望ましいことは確かです。しかし、政治資金の現実はまだそれとは程遠い段階なので、法律はまだそこまでは要求していないのです。
ところで、今回の事件は、選挙が近いと言われている時期に、次期首相の筆頭候補と言われている野党第１党党首の秘書を逮捕するという、非常に政治的影響力の大きい事件です。
こうした重大な影響の割には、今回の事件は、１億円の闇献金が発覚した日歯連事件などと比較して、規模、態様ともに軽微です。
政治資金規正法は、かつてはほとんど形骸化していて、１９９０年代まではきちんと守っている政治家などほとんどいなかった。過去にさかのぼれば、違法の疑いがある処理も実際にはかなりあるはずです。
こうした状況下で、形式的に法に違反しただけで摘発できるということになると、検察はどの政治家でも恣意（しい）的に捜査の網にかけることができてしまう。だからこそ、摘発する事件は、他の政治家が一般的に行っているレベルよりも明らかに悪質性が高いということが言えなければならない。収支報告書の訂正などでは済まされないような事案でなければならない。
今回の事件が、政治資金規正法違反として特別に悪質なものと言えるのか、それ以上のプラスアルファの事件があるのか、いずれかでなければ、このような時期に、重大な政治的影響を与えてまで強制捜査を行うとは思えないのですが、現在までの報道を見る限り、この事件が特別に悪質には見えません。私の経験から見ても、今回の捜査は不可解な印象を拭えません。」
>実質的な拠出者を記載しなければ意味がないものの「法律はまだそこまでは要求していない
企業献金の性質を考えると,企業が匿名で献金するということ自体がありえない話です。一方で企業献金を認めながら一方で匿名性を求めるというのはかなり矛盾している。だから、法律の要求することはやはり政治団体が実質的なものであるかどうかの一点であるというほうが説得力があると思います。
そもそも政治家が献金企業の名前を知っていたかどうかが問題になるならば,(献金を受けた政治家は,何らかの意味で名前を知っているはず)、それこそこの時期になぜ小沢氏の秘書を摘発したかが問題になるとおもいます。
郷原氏の解釈に従えば、完全なダミー団体とは言い切れない政治団体を間に入れれば、本来禁止されている資金管理団体に対する企業からの献金はやりたい放題になります。
ザル法の極みです。
改正時の国会の意思がそのようなものであったのであれば、政治資金規制法の改正自体が国民に対する詐欺行為と言ってもいいものです。
郷原氏は、最高裁の判例を引用していないようですのでこの点に関する最高の判例はないようですが（私は未確認）、私は裁判所がこんなザル法的解釈をするとは思えません。
罪刑法定主義というのは、常識的な法律解釈を求めます。
郷原氏のような解釈は、だいちゃんさんが言うように、非常識な結論を導きます。
１９９０年代まではきちんと守っている政治家などほとんどいなかったので、１９９０年代に３回も改正してきちんと守るようにしようということにしたのではなかったのでしょうか（少なくとも建前上は）。
その立法意思に反して、改正から１０年も立っているのに旧態依然の違法行為をしているとすれば、それは悪質ではないのでしょうか？
郷原氏は、本件の捜査を形式的な法違反で恣意的な捜査ができるほど簡単なものと思っているのでしょうか？
私のように、政治団体は必ずしも完全なダミー団体である必要はないと考えたとしても、立証の程度としては完全なダミー団体であると立証するのと大差ない立証が必要だと思われます。
恣意的に立件できると言えるほど検察の一存でどうにでもなる簡単な捜査であるとは到底思えません。
ほかにも指摘しうる点はありますが、すでに述べている点と関連しますので、とりあえずここまででコメンとします。
なるほど、結局判断するのは裁判所ですもんね。
かつての惰性でドラスティックな起訴をためらっていた郷原さんの自制だったのか。
たとえ真の立法趣旨がザル法化させることにあったとしても、今のご時勢では裁判所がバッサリ斬り捨てそうですね。
応援検事を頼んだり、これはひょっとすると起訴が難しいのかな？と思っていましたが。
今朝のニュースでは、談合の仕切り役企業が小沢氏側にお伺いを立てていた、という情報もありました。
仕切り役企業側からのリークとのことなので、密告者が出たのでもない限り不思議な感じを受けましたが、政治資金規正法違反以外にもあげようとしているのかな。
先が見えないというか、ドキドキ感（？）のある事件です。
日常の中で、法律を詳しく勉強し把握して行く習慣が無い私のような者にとって、いざ問題が起き、マスコミなどにより知る事となった時、特に法律に絡むような問題では、いかに冷静に判断し、物事の本質を見極めた評価・判断をすべきであるか、という事が如何に大切な事であるか。思い知らされます。
政治資金規正法については、最近何回か改正されて来た記憶があります。何時の改正の時かは、はっきり覚えてませんが、「この内容では、ザル法だ、」というような事を、訴え続けた野党側（どの人が言ってたかは忘れました）の議員が居て、印象に残っていますが、なるほどもしかしたらあの議員さんは、今回、問題が出て来ているところを指摘していたんだろうなァと思ったりもしてます。
領収書問題でも改正されたと思いますが、少しでも鏡張りの内容に改正されて行けば良い事なんだろうなーと感じており、マスコミが強調する一部の所ばかりしか私は見ていないにもかかわらず、その時の改正に対して良い評価をしていた事も思い出しています。
今回の問題により、企業などからの政治献金、ということについて（或いは私人からの献金も含め）、抜本的な問題があったんだということに、今更ながらですが気づく事ができました。
モトケン先生の何処かのコメントにもありましたが、今回の摘発を踏まえて、小沢氏が政治資金に対する問題意識を抜本的に考え直すに至る契機付けにもなったように思いますし、この問題を民主党が有利な方向へ転換していく事も可能であるだろうな、とも思います。
検察組織への批判染みたことばかりでは全く逆効果ではないでしょうか。
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