西松違法献金事件 特捜ＯＢが論戦 民主党の第三者委（asahi.com 2009年4月21日11時21分 ウェブ魚拓）
会合に招かれた元検事の堀田力・さわやか福祉財団理事長は、政治資金規正法をめぐる捜査について、「贈収賄の摘発は偶発によるものが多い。政治浄化の手段として、政治資金規正法は効果的だ。（収支報告書が）国民にわかりにくく、透明性を欠くものならば、きちんと摘発していくべきだ」と主張。これに対し、同委員会座長代理で元検事の郷原信郎・名城大教授は「政治資金規正法違反は山ほどある。それを一つ一つ摘発するのは、疑問を感じる。どういう場合であれば自信を持って罰則適用ができるのかを検察は説明すべきだ」と反論した。
検察側の説明責任について、堀田氏は「説明はしているが理解してもらえないというのが、検察の考えだと思う。検察は可能な限り、説明責任を果たしている」と指摘。郷原氏は「批判を受けながら納得されるまで説明すべきだ。一方的に、あるいは理解者だけに説明したのでは、検察は責任を果たしたとは言えない」と述べた。
同じ特捜ＯＢと言っても考え方に相当の違いがあることは、当然と言えば当然なのですが、覚えておく必要のあることだと思います。
ちなみに
堀田力氏の経歴（ウィキペディア）
郷原信郎氏の経歴（ウィキペディア）
個人的には、「小沢氏の政治手法」の当否こそが議論されるべきだと思っているのですが、その点が議論されたのかされなかったのかははっきりしませんね。
議事録はこちらに掲載されるものと思われます。
5月中旬までに６回程度の実施を予定しているようです。
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郷原氏が納得するような説明は不可能だと思います。
言い換えてみます。
「スピード違反は山ほどある。それを一つ一つ摘発するのは、疑問を感じる。どういう場合であれば自信を持って罰則適用ができるのかを検察は説明すべきだ」
郷原氏の言っていることはいまいち理解できません。
検察が説明するべき相手は裁判官であり、一般国民に対して、検察が直接説明責任を持っているとは思わないのですが、いかがでしょうか。
郷原氏の「納得されるまで説明すべきだ」との発言は、「私（郷原氏のこと）を含めて国民の最後の１人が納得するまでトコトン説明すべきだ」という意味でしょうか？
２年前に「最後のお１人まで最後の１円まで間違いなく年金をお支払いします」と出来もしない約束をして、政権を投げ出した総理大臣が居たことを思い出しました。
出来ないことを約束したり、無理なことを要求するのは、愚かなことだと思います。
今回の件で形式的解釈と実質的解釈のどちらを採るべきかについて、万人が納得する説明って可能なんでしょうか。
素人の私としては、予見可能性や安定性を重視して形式的な解釈を採る事も、立法趣旨を重視して実質的な解釈を採る事も、どちらも頷けてしまうところがあるのですが。
如何なる制度においても、「広報（公報と言い換えるべきか？）の対象者と情報の送り手が想定する人ほど、言い換えれば広報に反応して欲しい人であるほどに、手を代え品を代え訴えてもどうしても響かない」という法則は存在する気がしまふ。そうして、そのような広報に該当する事案が生じた際に「そんな広報なんか手に取る気もないけど、納得いくまで事前に説明されないのは許せない」という主張が為される可能性も、亦同じ。
座長代理の方のご意見は、民主党首や党幹部の方に影響を与えていたのではないかとさえ感じました。
｢国民の最後の一人が～｣という言い方は極論でしょう。
例えば当初検察は｢小沢代表のケースだけ金額がぬきんでていた｣という説明をしましたが､この説明自体は問題ありません。
ただし、これは裏返せば他の議員の同様の違法行為を認識しておきながら小沢氏のケースに関してのみ逮捕に動いた､ということであり､これは不公正です。
他の説明も同様で､検察の説明は検察自身の不公正を表すものであり､国民としてはは検察ともあろうものがそのような不公正をするはずが無い、これ以外に特別な事情があるはずだと考えて､それが｢説明不足だ｣という感想につながったのだと思います。
スピード違反（速度超過）は、ほぼ全員が検挙されているわけではありませんし、オービスやパトカー追跡測定などで「証拠が明白なものだけ」が検挙されただけです。そもそも、スピード違反の「軽いものはせいぜい反則金」で終わるのが法の規定です。これは一罰百戒の威嚇力に頼るしか刑罰の抑止効が期待できない類型だからでしょう。
今回の政治資金規正法違反類型は、これと対比して考えてみました。
この問題を考える上で検察の説明責任という問題は横道のように思いますから、本道に関する点〈有罪にできるのか）をどう論じたのか興味ありますね。
ただ、横道とはいえ説明責任という論点も面白いですね。堀田さんの意見のほうが伝統的な検察の考え方に近いように思いますが、民間の論理にどっぷり漬かった郷原さんの意見も今後の検察のあり方を考える上で聞くべきところがあるようにも思います。
「こうしたら捕まえて有罪にする」という説明責任を果たされたら、「こうしなければ捕まらずに有罪とならない」という抜け道の教授になる気がしますが、専門家の方の御説明を希望します。m(_ _)m
郷原先生の
は確かにその通りなんですが、この件の場合は「納得していない批判者」の中に「論理的な説明よりも、思想信条あるいは支持政党の都合を優先する」人がかなりの割合で存在することが問題なんですよね・・・この手の人達が納得する説明というのは「検察は間違っていました。小沢氏は潔白で国策捜査でした。」ということだけなんでしょうね。
全くの個人的な見解ですが、多くの国民は検察の説明責任より、民主党の説明責任を重視したのだと思います。
今回の検察の捜査が、民主党の支持率を下げたり、民主党のイメージダウンをもたらしたわけではなく、民主党の対応そのものが有権者に不信感を植え付けただけの事なのではないでしょうか。
仰るとおりですね。
第一には、裁判所がどう理解し判断するかが大事なことです。
でも、もし私が裁判員になったら・・・と思ったら少し不安になりました。
西松の件は、お金と政治、「国策」か否か、などなどいろんな議論があったし、多くの国民に直結する問題なので、気になっています。
自民党の議員の話も週刊誌ではいろいろ書かれていましたけど、なんか尻すぼみになってしまったように思います。
No.3 モトケン 先生
No.14 感熱紙（刑）様
確かに、政治や経済の大きな枠組みの中では、感情や信条が先にたって問題をすり替えたり、かみ合わない議論を繰り返したりして、こちらの言っていることを理解しようとしない人は多いです。つい最近もここのブログで経験いたしました。
自分の身近な話や自分の理想と、ある程度折り合いをつけていかなければならない現実社会の問題を混同していました。すみません。
「（今回のケースを違反とするなら）政治資金規正法違反は山ほどある。」と読むのが普通ではないでしょうか。
郷原氏は違反ではないという主張をされていますから。
スピード違反に例えるのなら、どういう場合であれば罰則適用ができるのかはすでに明らかだと思います。
説明責任。私見をもうせば、ある人たちに理解してもらわないと困る人間にある。
検察や弁護人は裁判に勝つためには裁判官に理解してもらえれば足り、国民に理解してもらう必要性はない。
しかし、国民に信頼してもらいたいなら国民に理解してもらわないとならない。
エントリ本文中先頭で引用された部分にある郷原氏のご発言は、氏の近刊本や雑誌への投稿記事などを拝読する限り、そうした氏の問題意識や言動の際の焦点に鑑みると、今回もそうした一連の流れから当然のご発言かと感じます。（賛否の価値判断は別として。）
ただ、２番目に引用されている説明責任に関する郷原氏のご発言は、この部分だけを読む限りでは、軽々に判断できないような気がします。単に私が氏の言説を上手く理解出来ていないが故に、引用部分だけで論じることが出来ないばかりか若干の違和感を感じてしまうというような、自身の能力に帰結する問題のような気もするんですが。(^^;;;
スピード違反ならば、偏在する不法行為を全国で毎日のように捜査､取り締まり､検挙しているわけですが、このケースに関して他議員の捜査を今も続けているのですか？我々には分かりません。
また、スピード違反の場合はオービス画像のような客観的で明白な証拠があるわけですが､まず小沢氏秘書の場合でどれだけの証拠が揃っているのか､他議員に関してはどの程度捜査を進めているのか､どの程度の証拠を集められたのか、まったく不明です。
以上から､スピード違反になぞらえるのは不適切だと思います。
そして、分かっているとは思いますがコメントの中で”一罰百戒”という言葉を使っていますが､これ自体既に検察の不公平を表しています。
No.7 TLPさんのコメントに帰着するように思います。
そもそも論で、「検察が間違っている。」と思っている人が検察の説明で納得するはずがありません。
公表されている情報だけを見て､それが全てだと判断した人は不公正だ､もしくは間違っている､と思うかもしれません。
公表された情報が全てではなく､何か隠されている情報があると判断した人は｢説明不足だ｣という事になるでしょう。
公表されていない検察の裏事情を知っている､あるいは検察に有利な事情を想像して検察の言動が正しい､検察は間違っていないという人は居ますが､公表されている情報だけで判断してそのような結論に至るという人はなかなか居ないと思います。
郷原さんは、今回の逮捕の容疑は違反ではないと主張していますので、検察の説明責任の意味は、「政治資金規正法違反かどうか」の解釈が明確ではないので、検察は、逮捕の対象となる政治家や一般国民に、予め、どのような行為が違反となって逮捕されるのかという解釈を説明すべきだと主張しているのだと思います。
これに対して、「スピード違反かどうか」の解釈は誰でも分かることで極めて明確なので、検察が一般国民に説明する必要は無いと思います。
よって、この問題を「スピード違反」と対比して論じる意味はないと思います。
大分間があきましたが、No.1で青魚さんが紹介された委員会のサイトでビデオを見ました。
堀田先生のご意見には、「国民の多くが…と感じている」という類の発言が多数ありましたが、私はその殆んどで「国民の多く」の一人に該当していました。
どなたかの言葉をもじって言うと「人網恢々疎にして漏らすべし」とも受け取れるような意見もある中、堀田先生はそれとはハッキリと一線を画するご意見で、賛同できました。
流し聞きしました。
政治資金規正法違反とはならない、という趣旨のことをあまり郷原さんが言っていなくて意外でした。もっとそこらへんで意見を戦わせていたのか、と思ったのですが残念。
ただ、45分頃以降で｢噂ですよ｣とか言いながら堀田さんが｢だから郷原さん出世できなかったんだよ｣みたいなこと言っていて…ﾋｨｰ(((ﾟДﾟ)))ｶﾞﾀｶﾞﾀ
生臭すぎてこわかったです(´Д⊂ｸﾞｽﾝ
4月28日（火）夜8時からのニコニコ生放送は、
「ニコニコ生討論会 東京地検特捜部とは何か？～元検事・郷原信郎氏が語る～」をお送りします。
コネクターはおなじみ政治ジャーナリストの角谷浩一さんです。
地検とはどのような組織なのか？西松建設による違法献金事件の捜査はどのような終結をみようとしているのか？
などを、ユーザーの皆さんと生討論します。
【放送スケジュール】
「ニコニコ生討論会 東京地検特捜部とは何か？～元検事・郷原信郎氏が語る～」
4月28日(火) 20:00～ (予定)
なお、番組では、あなたからのご意見・質問を募集中です。
↓メールアドレスはコチラ↓
seiji@niwango.co.jp
検察に対する素朴な疑問などをお寄せください。
たくさんのユーザーのご参加、お待ちしております。
■郷原信郎氏プロフィール
■ニコニコ生放送
http://blog.nicovideo.jp/niconews/2009/04/002880.html
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