このエントリでは、虚偽記載の故意について考えてみます。
（「虚偽記載とその故意（その２）」の続編です。）
故意とは何か、という問題は刑法の勉強としては基本的なものなのですが、なかなか理解されにくい概念でもあります。
今回の問題を考える限度で簡単に説明します。
手元にある前田雅英教授の刑法総論講義（第４版）には「犯罪（構成要件）事実の認識・表象」という定義が紹介されています。
簡単に言うと、犯罪の成立要件である構成要件に該当する具体的事実を行為者が認識していること、です。
（こう言っても、全然簡単でも分かりやすくもないところが裁判員制度を控えて裁判長としても悩ましいところだと思っています。＜余談です＾＾）
そして、虚偽記載の罪の構成要件というのは、
提出すべき書面に虚偽の記入をした
です。
「提出すべき書面」というのは法定の収支報告書であり、この点については争いはないでしょう。
となると問題となるのは、「虚偽の記入」と言うべき事実の認識です。
ここで注意しておきますが、虚偽記載の故意が認められるためには、客観的に見て、虚偽記載と言える事実の存在が必要です。
虚偽記載の事実の存在がない場合は虚偽記載の故意を認める余地はありません。
ないものは認識できないからです。
逆の言い方をしますと、行為者がいくら虚偽記載があると思っていても、虚偽記載の事実がなければそれな単なる思い込みであって、故意とは言いません。
しつこいですが、虚偽記載の故意を認める前提として、虚偽記載と言える客観的事実の存在が必要です。
「虚偽記載とその故意（その２）」は、どういう場合に虚偽記載の事実があると言えるかという問題を考えてみたものです。
ここでやや議論が混乱していると思われる状況があります。
郷原信郎先生などが、「寄附名義者たる政治団体が完全なダミー団体の場合ならば虚偽記載と言いうる。」というような発言をされたからかも知れませんが、「本件の政治団体が完全なダミーかどうか。」という問題提起のもとに議論されている場合が多いように感じられます。
しかし、検討すべき問題は、「収支報告書の記載が虚偽かどうか」ということであって、ダミーかどうかは一定の法律解釈に基づく前提問題の一つに過ぎません。
「虚偽」という法律の言葉の解釈において、「政治団体が完全なダミーでなければ虚偽とは言えない。」という解釈を前提にすれば、その解釈に基づいて政治団体が完全なダミーであるかが決定的な事実認定上の問題になります。
しかし、「虚偽性の判断においては政治団体が完全なダミーと言える場合はもちろん、そうは言えない場合でも行為とその状況次第では虚偽と言いうる。」という解釈を前提にすれば、完全なダミーでなくても虚偽記載は認定可能です。
つまり、検討の最終目標は、「虚偽か虚偽でないか」であって「ダミーかダミーでないか」ではありません。
これは郷原先生としても当然のこととされているはずですので、郷原先生を批判するものではありません。
以上の説明からおわかりのように、一定の事実（被告人の行為）を前提としたとしても、「虚偽」という言葉の解釈次第では被告人の行為が虚偽記載であると言えたり言えなかったりします。
今回、検察は、検察の解釈として「虚偽」を解釈し（どう解釈したかの詳細は不明）、大久保被告の行為として立証可能な事実はその解釈に基づき「虚偽記載にあたる」と判断して起訴したわけです。
ただし、法律の解釈の司法制度上の最終決定権は裁判所なかんずく最高裁判所にあります。
ですから、最終的には最高裁（どっちに転んでも本件は上告審までいくでしょう）がどのような解釈を採用し、その解釈を前提にして立証された事実が「虚偽記載」に当たるかどうかを判断することになります。
そして、以上のようにして虚偽記載にあたると評価される事実を、被告人が認識していた場合に「故意がある」ということになります。
どうでもいい追記
本エントリは４月１日に書かれましたが、エントリの連続性を考慮して、３月３１日に書いたことにしてあります。
”ほとんど労働することのない宿直”と申請して当局許可を得て、勤務医に宿直と同時に、ほとんど休みの取れない救急外来を命じることは、公正証書原本不実記載・同行使に相当するのではないでしょうか？
またほとんど寝ることができない”宿直”の勤務を時間外労働に算入せず、超過勤務時間を短く申告し、３６協定違反を免れているのも、虚偽記載と言えるのではないかと考えますが？
これは日本全国の救急告示病院で行われている、犯罪だと思うのですが、是非、検察に切りこんで頂きたいものです。
どの都道府県の知事であっても、労働基準法違反で追い込むことも可能です。
勤務医の被害は毎年数百億円に相当すると思います。
医療問題に強引に捻じ曲げて申し訳ありませんが、１人の政治家を狙うより、もっと公正な社会の法益保護のために検察の力を注いで頂きたかったです。
検察の方々は３０００人くらいしかいなく、無実の青年を冤罪に追い込むのに忙しくてそこまで手が回りません。
マジレスすると、小沢一郎は次期与党が有力視される最大野党の党首であり、一政治家とは呼ばないでしょう。
どっちもトピズレですね。
立件の当否の問題は、二階俊博経済産業相側（ご本人とは限らない）の立件の有無を見定めてからあらためて取り上げるかも知れません。
虚偽記載とその故意（その２）の（４）の場合について質問します。
歯科医師会に入れば強制加入であった歯科医師連盟との事にします。
（４）でいわれている甲は歯科医師個人、西松建設を歯科医師会、
政治連盟をダミーの政治団体と考えるとまったく同じ構図になります。
違いは、寄付か会費かということと、お金を誰が出しているかと
いうことぐらいです。
この違いは、どこにあるのでしょうか。
＞違いは、寄付か会費かということと、お金を誰が出しているかということぐらいです。
寄付か会費かは、無視できません。
寄付は任意ですが、会費は義務的だからです。
ただし、「政治連盟をダミーの政治団体と考える」としますと、結局一緒だと思います。
以上は、立証を度外視した理屈です。
＞この違いは、どこにあるのでしょうか。
どういう違いを問題にされているのでしょうか？
モトケンさんありがとうございます。
違いとは私が、述べた件と小沢との違いです。
やっぱり会費として払っているのは
厳しいでしょうね。
ただ、感情的には、自民党に献金するかーボケ
という想いが当時ありました
ここのブログを読んでいて法律と感情とは
違うとゆうことを理解しなければいけないと
思っているのですが
政治連盟ときくと悲しいかな
怒りをかんじます。
これが、政治団体のすべてではなければよいのですが。
話は，かわりますが弁護士さんにも
政治連盟があるのですね。
人間の生き方がいろいろ難しい時代なのでしょう。
なんとかなりませんかねー
モトケンさんすみません。
本来、人を辱めるようなことを
書き込んだことは，ありません。
でも、辱められたら反論しても良いですよね。
法務業の末席様
広島で連盟非会員なのに会費を請求されつづけて
あまりにも醜いから
裁判になって２００４．４月
社労士政治連盟の敗訴になったのを
しっていますよね。
そのころ、私は、歯科医師連盟の裁判を
見ていて、何とかなるのかなーと
思っていました。
でも、おなじ政治連盟
どこのかは、わからなかったにしろ
ろくでもないものだと思いました。
今回，あなたは私に向かってそんな、ルーズな
そしきは、あなたたちが悪い、最低だというような
ことを、述べられていますが
訂正とか、謝罪とかありませんか。
すきなことをいうのはかってですが
まちがっていたら
誤りましょう
初めてコメントさせていただきます。
郷原氏は
「期ズレだけで起訴することがいかに常識外れかを少しでも多くの国民に理解してもらうしかないと思います。ネットのニュースで「小沢氏側が検審に異例の上申書の提出検討」と出ていました。私の著書「検察が危ない」を検審に送りつけて審査員全員に読んでもらうのが一番効果的なのですが。」
http://twitter.com/nobuogohara/status/14430146959
などと散々「期ズレだけで・・・」を連発してますが、
どう考えても意図的に背rん誘導をしているようにしか見えませんね。
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