絶対お一人じゃないから「弁護団」と書きましたが、静かですね、表面的にはですが。
先日、自白報道に対する否定コメントを出した以外では、報道から弁護団の動きは全くわかりません。
大久保被告人は２４日に起訴されましたが、保釈請求をしたという報道はありません。
保釈されたという報道もありません。
保釈されたら間違いなく報道されると思われます。
とすると、保釈請求をしていないか、請求したけど却下されたのかどちらかです。
後者だとすると、弁護団は余計なことは一切口にしない方針と思われますが、保釈手続には裁判所や検察庁も関与しますから、マスコミに一切探知されないというのは難しいかなと思われます。
そうすると、前者つまり保釈請求をしていない可能性が高いことになりますが、私選弁護の場合は、起訴後直ちに（保釈許可の見通しの程度にかかわらず）保釈請求をする弁護士が多いと思います。
ところが大久保被告人の弁護団が保釈請求をしていないとすると、私には、弁護団はとても実戦的な判断によって行動しているように見えます。
言い換えますと、検察から見ると最も警戒すべき弁護団ということになります。
マスコミの憶測や想像に基づいた報道に対し、裏付け調査をきちんと遂げるようにと柔らかい言葉で毅然と言い渡したあたり、人間的にも出来た方ばかりでしょうし、ロウ・ボスチャーという威厳ある交渉テクであるし、マスコミの一番痛いところをズバリ突くという本質指摘を活用されてますから、老練な方だと思います。
これは、毎日ｊｐの3月25日付けの記事からの引用です。
単純に考え直してみたのですが、上記内容の起訴ですと、今回の大久保被疑者の容疑内容は有罪にする事が難しいように思えてなりません。
殆どの政治家の先生方は、献金内容について、何処からの献金なのか、という事ぐらいは調べるのではないでしょうか。大久保被疑者が西松からの献金という事を認識していても不思議ではないと思います。
（裏組織からとか犯罪性の高い金ではないのかという心配もありますので、特に高額献金については）
建前としては、あくまでも政治団体からの献金というふうになってはいても。
ですから、大久保被疑者が西松からの献金だったという事を認識できていても、法律としては献金元を明記しなくて良い訳ですので、現状の法律では、陸山会へ献金される前に政治団体へ献金されていればまったく問題が無い訳です。実質として「これくらいの資金が必要だから宜しく頼みますよ」と大久保被疑者が西松へ献金を要求していたとしても、献金手順は、合法的に行なわれているのではないでしょうか。
大久保被疑者から請求書が出されているという報道がありましたが、その請求書を根拠に、高額の政治献金が、実体としては西松から陸山会へダイレクトに渡っていると解釈するのであれば、そのような要求を取り締まる為に、別の立法措置が必要なのではないのかな？と、素人感覚では感じてなりません。
今回の献金を経由した政治団体がダミーであることを証明できれば陸山会へ直に渡ったと立証できるという話もどこかで聞きましたが、その政治団体が、このとき以前にも金の流れがあれば、余程のことが無い限りダミーだった事を立証するのは困難ではないでしょうか。
検事さんが異例の会見で、「極めて悪質」というようなコメントも有ったようですが、その意味するところは分かるんですが、法整備の穴が露呈しただけのような気もします。
現実問題として、共産党以外の政治家にとって、献金がなくては今までどおりの政治活動が円滑になされないでしょうし、地元の有権者にとって、如何に中央より資金を地元へ引っ張ってこれる人物であるのかということも、かなりの選択理由で投票行動に結びついているのでしょうから、政治献金の方法論などは議論の余地はあると思うのですが、献金活動をまったく禁止してしまうというのも現実的ではないように思えます。
（個人的には下限を設けず、企業献金は禁止にして、満額免税対象にすれば良いのになと思ってます）
理想としては国益の為に如何に有能な人物であるのかということを本来的には求めたいですが、各地方が偏り無く活性化されれば、それが国益にもつながるのでしょうし。
少々スレ違いの事を書いてしまいましたが、弁護人（団？）は
無罪を勝ち取る自信がかなりあるんではないのかなと思っています。
タイトルを読み直して気づきましたが・・・。
大久保氏は既に起訴されていますので、
大久保被疑者（誤）
大久保被告人（正）
です。すいませんでした。m(_ _)m
>No.2 ゼロ+O さん
> 法律としては献金元を明記しなくて良い訳ですので、
これが、そうなのかどうかが解釈上の争点の一つではないでしょうか。
L.A.LAW 様
法曹側からのお立場として、争点の一つを御提示いただきましてありがとうございます。m(_ _)m
法律素人ゆえ単純に考えすぎているかもしれません。
ゼロ＋０さんの意見と同様の疑問を持っています。
検察の起訴内容である「政治資金収支報告書に、西松建設と書くべきなのに、政治団体の名前を書いたのが虚偽記載だ」というのは、政治資金規正法違反の虚偽記載の罪について、従来の「形式犯」という解釈から「実質犯」だという解釈に変更しなければ出てこない結論だと思います。
形式犯か実質犯かというのは構成要件の分類ですが、その分類の前提として解釈があります。
解釈の結果としての形式犯であり、形式犯だからこう解釈すべきだ、というのは本末転倒だと思います。
政治資金規正法というのは、その立法の当初よりザル法であることが指摘されていたはず、というより元々ザルになることを意図して作られた感が強いです。それを解釈でザルの目を防ごうというのは、立法時の法律の意図に反するような気もします。つまり政治資金規正法というのはむしろ、企業献金を認めている法律ではないでしょうか。善悪は別にして。
大久保秘書を逮捕、起訴したもののご本尊に至っては事情聴取さえもできないところが、検察の苦戦を雄弁に語っていると思います。
もともと空いている穴を通られるのは仕方がありません。
例えば、政党支部への寄付などですが。
しかし、本件は塞いだ穴を偽装工作で通ろうとするものです。
私は、「当初よりザル法」と決めてしまえば、法なんて必要がないとなってしまうと思います。
「抜け穴なしの完璧な法は存在しない。」と言う方が、まだしっくりします。「少しずつでも良いから、改良を加えて、有効性の高い法にしていけばよい。」のですから。
しかし、どの部分がザルで、どこに抜け穴があるかは、実際に起こっている事件が一番よく示してくれていると思います。どうなのか、ゆっくり楽しみながら見てみたいと思いますが。
>私は、「当初よりザル法」と決めてしまえば、法なんて必要がないとなってしまうと思います。
そりゃ、将来起こることをすべて予想して法を作れなんてことできるわけありませんよね。そうじゃなくて、この法律ははじめから意図してザルの目が作られているという意味で、別格です。
そしてこの事件はまさにザルの目がふさがれていたのかどうか、これからの争点というわけでありましょう。
それにつけても感ずるのは、政治資金報告書の不実記載によって大久保秘書がいかなる利益を得ていたのか、利益を得ていないのならば不実部分を訂正すればよいだけの話ではないのでしょうか。そんなことではすまぬ重大な犯罪だ、とはご本尊の逮捕、起訴なくしては決して言えぬことだろうと思います。
利益を得たのは小沢さんです。
本来なら得られないはずの莫大な政治資金を入手しました。
あるいは、西松から莫大な政治資金を提供されているという事実を国民の目から隠しました。
これだけで充分に重大な犯罪といえます。
ですが小沢さんは（今のところ）罪に問われません。
「秘書が勝手にやったこと（で逃げ切れると検察が判断）」だからです。
>本来なら得られないはずの莫大な政治資金を入手しました。
まぁお気持ちはわかりますが,それも証拠に基づいて主張すべきことですよね。証拠がなければないとするのがの世界らしいですよ。
＞これだけで充分に重大な犯罪といえます。
倫理と法は分けたほうがよろしいかと。
悪質な行為だと言いたいのでしょうが､そこら辺を歩いているおっちゃんおばちゃんに仰るような悪質性を問いても、なかなか分かってもらえないんじゃないでしょうか。
もちろん政治資金の流れを把握する目的も否定しませんが､
その先には収賄や斡旋などがあり、本来的にはそれらを抑止するのが目的じゃないでしょうか。
そこまで繋がってないとそこら辺のおっちゃんおばちゃんにはなかなか分かってもらえないでしょうね。
ここら辺ライブドア事件と似ています。
で、特捜(または東京地検)は以上の行為の”悪質さ”をマスコミを通じて喧伝し、当該行為の悪質性を日本国民の常識に植え付けるために、日夜リークを繰り返したと、そういうことだと思っています。
彼らが当初思い描いたストーリーで起訴できてればそんな必要も無かったんでしょうけどね。
特捜部は、企業献金禁止と虚偽記載だけの起訴になる可能性を十分検討した上で着手していると思います。
小沢氏に対する斡旋収賄罪立件のハードルの高さ（すごく高いですよ）を甘く見ていたなどとは考えられません。
ちょっと厳しい事を言わせていただきます。
法律の穴を塞いだのにそれに穴をあけようとしているのが
おかしいとゆうのであれば
最初から穴なんてあいていないものに対して
無理やり穴をあけようとしている事に対して
まったく答えない検察です。
悪いですけど
小沢が良い悪いとか判断できる
レヴェルの人たちでしょうか。
検察は行政でしょうか司法でしょうか
自分たちの立ち位置さえわからない人たちが
うだうだ言ってもしかたがないと思います。
これは何を指しているのかがまったく分かりません。
今までのレスの流れでは
政治資金規正法はザル法であるから、今回の事件はひっかからない
→
企業献金という穴を防ぐための法律であるのに、塞いだ穴を迂回して抜けたのではないか
→
ザルの目がふさがれていたのかどうかがこれからの争点
ということでしたので、「穴なんてあいていないものに対して無理やり穴をあけようとしている」という例えは、今までの流れからすると「明らかに違反である企業献金をむりやり通した」という意味になります。
もし違うことを指しているのだとしたら、具体的に何を指しているのか教えていただけないでしょうか。
＞検察は行政でしょうか司法でしょうか
＞自分たちの立ち位置さえわからない人たちが
＞うだうだ言ってもしかたがないと思います。
刑事訴訟法の教科書を読んでみてはいかがでしょうか？ 少なくとも検事は全員が難関の司法試験を受かっているのですから。
元々、貴方が不実記載があった場合の話をされていて、私はそれに合わせただけなのですが･･･
て、書かれていますよね。
西松＞政治団体＞小沢氏資金管理団体というのが虚偽記載で、西松＞小沢氏資金管理団体が正しかった場合、訂正すればよいという話ではありません。
これは不正な政治資金の受け取りです。
なんとなく分析してみる（主によく分からん！と思ってる人向け）
例の如く責任はとらん
政治資金規正法12条1項1号ロ
を報告書に書けやゴルァ同法第21条1項
同2項
その他罰則規定やら22条の2やら略。
なんとなく主要な争点がこの規定で出てくる｢寄付｣をしたのがだれか（西松か政治団体か）ということになってきた模様。
名義は政治団体だから寄付者は政治団体なのか、実質的には西松からの寄付なのだから寄付者は西松なのか。
ところでこの法律は過去に何度も改正されているが、その中で重要なのは次の二つ
No.9 モトケンさんのとは、平成6年改正で抜け穴となっていた資金管理団体への企業献金を平成11年改正でふさいだのにそれを潜り抜けようとした、という意味だね。結局のところ、今後問題となりそうなのは
１ ｢寄付｣をしたのが誰かを、形式的に名義人と考えるか、実質的な寄付者と考えるか。
２ 実質的な寄付者と考える場合、どうすれば｢実質的な寄付者｣といえるか。そして検察はそれを証明できる証拠を持っているか。
といったあたりかな？
政治団体がダミーであったか、資金を出したのが誰か、というのは｢寄付者は誰か｣を考える上で重要な考慮要素とはなるけれども、有罪・無罪の線引きをするまでの意味は持たない、と考えたほうが良いように思います。
個人的見解を若干述べておくと、おそらく裁判所は実質基準を採用すると思います。上記の法改正の経緯を考慮すると、形式的に政治団体を介在させるだけで誰でも寄付できる、と解するべきではない、と裁判所は判断するだろう、と考えるからです。なお、立法機関の議員は形式基準と考えていたかもしれませんが、その法律の解釈・適用は司法権の果たすべき役割であって、議員の考えは裁判所を拘束しません。
ただ、上記２の問題は公判が始まってみないことには分かりませんね。とりあえずそれまではまた～りヲチしていくしかないでしょうね。
結局､小沢さんはどうすればよかったんでしょうかね？
西松建設か､新政治問題研究会のいずれかの名前をだすか。
いずれも問題ありです。
では当該政治団体が西松建設のダミーであるという認識で
献金を拒否する？
｢献金を拒否しなかったこと」の罪は現在問われていません。
結局、国会議員というのはどうあるべきか、という問題について国民がどう考えるか、ということじゃないんですか？
一般論として、現在の有力な政治家と言われる人は、「あの人（またはあの人の秘書）に頼めばなんとかしてくれる。」という側面と、的確な政策決定とその遂行ができるという側面の両面が考えられている、というか両面が求められているのかも知れません。
そして、前者の側面においては、人にものを頼むときはただでは頼めない、というのが日本の常識であるようです。
頼む相手が政治家であったとしてもです。
ところが、法の建前はそれを禁じます。
さて、どうするか、ということですね。
http://motoken.net/2009/03/31-220944.html#comment-6264
このコメント以降のコメントに今のところ特に付け加えることはありません
無印粗品さんへ
私が言いたかったことは政治資金規正法では、振り込んだ相手の名前を記載しなくてはならないとなっているんでしょう。
ところで、私は歯科医師なのですが、歯科には
歯科医師会と歯科医師連盟とがあります。
当然，献金をしているのは歯科医師連盟ですが
本体は同一です。
つまり今回の件と同様であればそしてもっとはっきりしていることですが、お金を出しているのは歯科医師会のほうであり歯科医師連盟ではないので、すべての政治資金規正法の名義は歯科医師会でないとおかしいはずです。
しかしながら記載名は、歯科医師連盟なので
最初からお金を振り込んだ相手を書けば良いので
穴などは、ありえないと書いたまでです。
ハスカップさんへ
読んでみます。
ただ、私は歯科医師なのですが，
歯科医師連盟訴訟とかあったので、
もし、司法の立場に立つのであれば
いまどきこんなことは、しないと思ったのです。
もし、行政であればいろいろなことができるでしょう。
もうひとつ
司法試験に受かったとゆうことが
何か，すごいことのように言われていますが
高々、法律、試験に詳しいというだけだとの
認識しかありません。
この人たちが、頭脳もモラルも普通の人たちより
上であるとは思えません。
ストーカーをするような裁判官もいるぐらいですから。
検察の立ち位置は一般の人にはわかりにくいでしょうね。
組織の所在としては行政権に位置してますけど、その権限は準司法作用と言われています。
それと、自分が何について何を言いたいのか、それが相手に伝わっているか、という点をもう少し考えて書いていただけると返事もしやすいかと思います。
つまり検察も裁判官も弁護士も、法学を学んだ中でもパリパリの法律家で（つまりプロ中のプロ）、当然ながらプロの法理論で行動しているので、憲法や刑訴法の基本を無視した明後日向いた批判（ＤＱＮ患者の医学を無視した感情論クレームと同旨）が無意味であるということです。
ＰＳ：
誤解のないように付記しますと、私の理解では、司法試験合格も、医学部合格も、公認会計士取得も、ＳＡＳ選抜試験合格も、定期運送用（航空）操縦士の運行ベースの免許（機種レイティングと路線免許それに航空身体検査合格）取得も、内容の質量に差異がありますが、いずれも難関だと思います。
いずれも人間の能力限界に近いスキルを求められるみたいですし、取得までの努力過程での忍耐力が並外れていると思われるからです。
それだけのプロ中のプロがプロとして活動したものは、一般論として、高度に緻密かつ合理的な行動と合理的に推定されてしかるべきでしょう。
ＰＳ２：
トピックタイトルの弁護団が発表された「マスコミの憶測や想像に基づいた報道に対し、裏付け調査をきちんと遂げるように」との趣旨は、ネットで発言する場合の戒めになると自戒を込めて思いました。
ろくに調査や専門分野の基本的な勉強もしないで他人を不相当な語法で誹謗する某弁護士の言動を見ると特にそう思います。
ふっくん様
私は社会保険労務士ですが、社会保険労務士も同じように○○県労務士会に加入（歯科医師会と違い法律での強制加入です）します。そして同時に私は労務士政治連盟にも加入（こちらは任意加入）しています。で、労務士会の会費と政治連盟の会費とは全く別の請求書ですし、振込先の銀行口座も違います。
会員が振込料や手間を惜しんで、両方の会費を合計して労務士会にまとめて振り込むと、労務士会の方から政治連盟会費の分だけ労務士個人に返金され、改めて政治連盟に直接振り込みし直すようにとの手紙が来ます。つまり労務士会と政治連盟の間に入会している人間のダブりは在るとしても、金のダブりは一切無いように気を付けた運営がされています。
どうやら投稿内容から推察するに、ふっくん様の加入している歯科医師会＆政治連盟は、こうした「組織の分離」ということがルーズで、「金の分離」という政治資金規正法の主旨からすると、問題のある組織運営＆資金管理であるような印象を受けます。（問題があるからこそ訴訟が為されたと私は思いますが）
そしてそうした師(士)会と政治連盟の密着した一体的な組織運営＆資金管理が、一般的に何処の組織でも同じように行われていると誤解されているように感じます。でも、それはたまたまふっくん様が加入されている歯科医師会＆政治連盟がルーズなだけであって、他の業界の政治連盟や政治資金の流れも歯科医師会と同じ遣り方ではありません。
政治連盟の資金透明化に努力している多くの業界団体関係者から見れば、ご自分の業界（歯科医師業界）のルーズさをもって、他業界も皆同じように問題のある資金管理をしていると断定されるが如き御主張は、如何なものかと思う次第です。
医師連盟については、医師会費と一緒に一括徴収されてます。ただし、徴収時にい歯科医師と医師連盟日というのは別個に請求書に記載されてます。私は｢医師連盟のような団体に金を払うのはいやだ｣とごねたところ,医師連盟費は免除されましたが。そういう意味でこれははっきり区別されているらしいです。
しかし,わからないのは大久保秘書と同様な虚為記載が問題にされたケースというのは過去数件あって,いずれも政党支部への献金と訂正するなどで逮捕,起訴された例は一例もありません。今回のケースと全く同じというつもりもありませんが。エントリーの(4)のようなケースが虚為記載で犯罪にあたるとすると,これは事実上の個人の政治家に対する企業献金の禁止と思えます。とすると、ある日突然検察は、政治家個人に対する企業献金を悪と考え取締りをはじめたということなんでしょうか。
蛇足：法務業の末席さんもお目覚めが早いようですね。
＞これは事実上の個人の政治家に対する企業献金の禁止と思えます。とすると、ある日突然検察は、政治家個人に対する企業献金を悪と考え取締りをはじめたということなんでしょうか。
企業（会社）から政治家個人に対する政治献金は、政治資金規正法第21条によって禁止されています。
そして、そのような行為に対する罰則が規定されています。
つまり、法律によって「悪」と評価されています。
ちょっと言い方が悪かったようです。政治家個人に対する企業献金は明らかに禁止されてます。私も反対です。ところがこの法律は迂回献金という抜け道が用意され、今までは何年もの間、抜け道が大いに利用されていたのが、ある日突然検察が摘発に乗り出したというところに違和感を感じざるを得ません。最終的には違法かどうかは裁判所が判断するわけですけれど、誰であれ逮捕起訴されるということは大変なダメージになります。
今までやっても良かったと思われていたことが、ある日ある検察官が解釈の変更をして摘発に乗り出す･･･そこまでの権限を検察官に与えて良いものでしょうか。（実際に与えられているわけですが。）
＞蛇足：法務業の末席さんもお目覚めが早いようですね。
何せ歳が歳ですし、日の出と共に目覚める体質なんです。お陰で冬至の頃は７時過ぎでないと起きれませんし、これから夏場に向かっては日々早起きになります。夏至の頃には４時半には起きるような体質のなので、私の身体は原始人に近いのでしょう。
さて今回の西松事件（私は小沢氏への献金事件ではなく、西松の企業としての事件だと見ていますので、敢えて西松事件と呼びます）の本質について、私流の見方を「虚偽記載とその故意（その２）」エントリに、今し方投稿しておきました。参考になるかどうか判りませんが、お金の流れから見た私流の事件の評価です。
＞今までやっても良かったと思われていたことが、
誰もそんなことは考えていないでしょう。
政治家個人（またはその資金管理団体）に対する企業献金は、禁止された当時から現在まで一貫して違法であり、「やってよい」と解釈されたことはありません。
したがって
＞今までやっても良かったと思われていたことが、ある日ある検察官が解釈の変更をして摘発に乗り出す
この批判も的外れです。
うらぶれ内科さんだけじゃないんですけど、皆さん、立証という問題を全く考えていないかとても簡単なことのように考えているように見えます。
スピード違反の検挙みたいに、やろうと思えばいつでもいくらでもできると思っているのでしょうか。
迂回献金というのは、偽装工作です。
違法行為を合法行為のように見せかける偽装工作です。
偽装を打ち破って「この献金は違法です。」ということを裁判官に納得させる必要があります。
私は、本件で大久保被告の行為は虚偽記載になり得ると言っていますが、そのための立証は簡単なことではないとも言っています。
補足
新聞が「迂回献金だ」と書いたからといって、その新聞記事を証拠に違法献金であることが立証できるわけではありません。
法務業の末席様へ
ちょっと怒っているんですが
歯科医師会をそんなに好きなわけだはないですが
普通、人に向かって
ルーズでとんでもないとか
してきしたら、自分たちは，とてもすごいと
ゆうことでしょう。
２００３年ごろ歯科医師連盟が任意入会と
やってる最中ほかの連盟裁判をおもいだしました。
はっきりゆうぞ、人に向かって透明性がうんぬんと
いえるレベルではないだろ。
でも、法務業の末席といわれればわたしより
まともな人間と思われると思ったのか。
それとも、私がばかなのか
これは、このホームページに対する」
こたえをだしてもらいたい。
若し私が間違っているとゆうこたえであれば
かなしいかな
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