乳児虐待の父親に懲役１２年 奈良地裁「親の資格ない」（asahi.com 2009年5月12日12時33分）
奈良市で生後間もない双子の兄弟に両親が虐待を繰り返し、次男が死亡した事件で、傷害致死などの罪に問われた父親の無職松本一也被告（３０）＝同市月ケ瀬尾山＝に対し、奈良地裁は１２日、懲役１２年（求刑懲役２０年）の判決を言い渡した。石川恭司裁判長は「妻の実家や妻の態度に対する不満のはけ口を、子どもに向けるなど、身勝手極まる犯行動機。親としての資格は全くない」と述べた。
裁判所は、殺人罪ではない、つまり殺意がない、ということ懲役２０年の求刑に対して懲役１２年の判決を言い渡しのではないかと推測しているのですが、法律的には、殺人罪と傷害致死傷罪は法定刑からして違うのですから、殺意の有無が量刑に大きく影響するという一般論を否定するつもりはありません。
しかし、
判決によると、一也被告は妻の琴美被告（２２）＝求刑懲役１３年＝と共謀し、兄弟の誕生直後の０７年１２月から、自宅で顔や尻をたたいたり、胸ぐらをつかんで前後に揺さぶったり、ベッドに放り投げたりした。次男は０８年３月に意識不明の重体となり、同年７月に入院先の病院で死亡した。生後８カ月だった。長男も脳に重い障害が残った。
このような客観状況（出生直後から暴行を加え、その結果として一人を死亡させ、一人に重度の障害を生じさせた）からしますと、殺意があったとかなかったということにどれだけの意味があるのか疑問です。
もともと、現実問題としては殺意の有る場合と無い場合は明確に区別できるものではありません。
限界事例では、殺意があるとは言い切れないので、傷害致死にとどめるという判断になります。
理論的な話ですが、構成要件該当性の問題としてはそう考えざるを得ません。
しかし、情状つまり量刑の問題を考える場合には、法定刑の枠内での議論になりますが、事件の実態というものを見なければいけないように思います。
本件を見た場合、全く無抵抗で防御力も抵抗力もほとんどゼロと言える首もすわるかすわらない乳児に対して、胸ぐらをつかんで前後に揺さぶったり、ベッドに放り投げる行為によって死亡させたこの父親は、「死なせてしまった。」という感じよりは、「殺してしまった。」という言葉がふさわしく感じられてしまうのです。
まさしく、殺人罪と傷害致死罪のボーダーラインケースのように思われます。
検察が、傷害致死罪の法定刑の上限を求刑したのもよく理解できるところです。
裁判所は、「親としての資格は全くない」とまで言ったのですから、懲役１２年の判決は軽すぎるのではないか、と思った報道でした。
言い換えれば、以上は報道された情報限りに基づく印象的意見であるわけですが、５月２１日以降の起訴であれば裁判員制度が適用される事件です。
検察官と弁護人の法廷活動如何によっては、量刑が大きく変わってくる事件だったかも知れません。
ああ、軽すぎますね。求刑通りでも。
未必の故意による殺人とも言えるケースでしょうから。
死亡乳児は単純殺害に勝るとも劣らない出生直後からの地獄の拷問の日々であった。重度後遺症となった生存乳児は死亡に勝るとも劣らない不自由な人生を自然死まで送る日々が約束されてしまった。いずれも，通常なら一心に愛情を注いで唯一無二と言ってよい保護者の両親から，それぞれ一心かつニ身の虐待……（以下略。
鬼悪魔鬼畜の所業。・゜゜・(>_
私は死刑には反対なんですが、受刑者の強制労働とかはあってもいいかなと思ってます。
この両親はすっごく大変な労働（もちろん健康被害がでるレベルじゃないですが）をして、その賃金を重い障害の残った子の養育費にあてるとか。
もしその子が早くに亡くなっても同じような境遇の子を支援する費用にあてるとか。
「懲役 ＝ 強制労働」 ですよ。
現在の懲役でも、「作業賞与金」は出ますが、非常に低額です。
加害者自身の労働による被害賠償って、理念としてはごく自然だし実現されるに越したことはないのですが、実効的な形（つまり被害者・遺族も満足するような額と迅速な執行）にするのにはいろいろと困難も伴います。
ご参考までに刑務所作業製品（CAPIC）にリンクを貼っておきます
エントリ本題のほうですが、裁判員制度で類似事件が審理された場合、「量刑感に引きずられた事実認定」が起こる可能性もありそう。
つまり、「傷害致死罪であれば懲役20年が上限。本件はそれでは生ぬるい。ならば殺意を認めて殺人罪にすればいい。そうすれば無期懲役や死刑にできる」 という思考をする裁判員が出てもおかしくないかと。
自己レス。
「類似事件」でも、本件とは違って、検察は殺人を主張したという前提です。
（裁判所は、量刑は法律の範囲内で検察主張よりも重くできますが、起訴事実を勝手に重い罪に変えることはできません。傷害致死で起訴されたのに殺人を認定するには、検察に訴因変更の手続をさせる必要があります。誤解を招く表現で失礼しました）
ベッドに放り投げるなどの行為の一部が証拠不十分で認定落ちとなっているようです。
http://www.47news.jp/CN/200905/CN2009051201000385.html
また，弁護人は暴行と死亡との因果関係を争っていたようです。
http://www.yomiuri.co.jp/national/news/20090512-OYT1T00321.htm
参考までに。
なお，傷害致死（被害者１名）＋傷害（被害者１名）の処断刑は通常は３０年以下の懲役です（傷害罪について懲役刑を選択した上で，併合罪加重。）。
刑務所作業作品見るとこんなの作るの楽しそうって思うわけです。
みんなが嫌がるけどかわりに報酬が高いたぐいのお仕事させて被害賠償にすればいいのにって。
乳児・幼児などに対する、感情に任せた行為が「虐待」へ直結し、更に「殺人」という行為に等しいという認識が希薄すぎていた親として子供を生み育てる資格がない夫婦に、生を授かった兄弟が不憫でなりません。弁護側の主張からすれば、夫は裁判を通して、上記のような主張を展開しているという事は、己のしでかした行為に対して今だ反省を感じていないようで、私にとってはその事も信じられません。
この夫婦は何を考えて子を持つ事を選択したのでしょうか・・・。
今回の事件だけでなく、大人の暴力にはなす術もない幼い子らへの虐待は本当に許せない事です。子育てとはなんでしょうか？そこを良く理解していない大人が多すぎるような気がしますので、重罰を持ってしても類似犯の抑制になるだろうかという危惧を最近殊更に感じています。
刑務作業への発注は、近年減少に有るようです。 経済状況が影響しての事でしょ。 何時かは、刑期終了する事に成りますの、以後の生活のための職業も必要となり。 なぜに私はこんな事を淡々と書いているのでしょう。 すごいジレンマが。
先生はじめまして。
早速質問なのですが、日本の刑法ではなぜ傷害致死と殺人を区別するのでしょうか？
先生も仰る通り「殺意の有る場合と無い場合は明確に区別できるもの」ではないのだから、むしろ区別している現行法がおかしいのではないのでしょうか？
とりあえず、立法政策の問題だとお答えしておきます。
どういう行為をどういう犯罪とするかの法律による決め方の問題だということです。
例えばの話ですが、傷害致死と軽殺人（または重過失致死）と殺人というような決め方をすることも可能です。
どんな決め方をしようと、人を死亡させるという行為について罪名を一つにまとめない限り、ボーダーラインケースというのは生じます。
罪名を一つにまとめるというのは（極端に言えば過失致死も計画的殺人も一つにまとめてしまう）、それはそれで問題が生じます（例えば、罪刑法定主義との関係で問題が生じます。）。
何らかの枠組みがあったほうが、公平というものを図りやすいのです。
しかし、枠組みを作ると、その枠組みに当てはまるかどうかの問題が常に生じます。
故意犯と傷害致死（死の結果に限り過失犯：結果的加重犯）の２分類説の硬直性を打破するために、殺人罪・故意無き殺人罪・傷害致死罪という３分類をとる立法例（ある連邦国のある地方政府）もあります。
また、これを訴訟の挙証責任と証明の枠組みの中で解消しようとする立法例・判例もあります。たとえば
(1) 検察官が犯人のやった行為は（犯人の意図や犯意を不問のまま）人を殺すに十分な行為であることを立証する（殺人罪が推定される）。
(2) 犯人は自分に殺意がなかったことを立証する（推定が破られる）。
(3) 裁判官は，(2)が立証されれば傷害致死罪，立証されなければ殺人罪を認める。
という感じです（ザックリとした平均的モデルです）。
これは「故意の客観化」「主観的構成要件の挙証責任の転換」と呼称されることもあります。
講壇事例でいうと
(1) 夫が妻の心臓を拳銃の弾で３発射抜いたことを検察官が立証する
(2) 弁護人が、子供がいたずらでパパの護身用の音響拳銃（空砲音だけで弾が出ない）を実弾拳銃にすり替えたことを子供に証言させる。
(3) 裁判官が子供の証言の信用性を吟味して、殺人罪か過失致死罪かを判断する
という感じです。ご参考まで。m(_ _)m
少し前に読んだ本に書いてあったことです。
裁判官が「万死に値する」とまで面罵した被告に対する判決。
何だと思います？
普通死刑ですよね？
少なくとも無期懲役。
ところが執行猶予付きでした。（笑）
もっと重い刑を科すべきと思いつつもそんなことをできない鬱屈がこんな形で噴出すのではないかと著者は推測していました。
この事件の裁判官も同じではないでしょうか？
もちろん、立法・司法・行政と地域地域社会の緊密な協力が必要です。
ヒト・（モノ・）カネもある程度必要です。
私たち一般市民の「やる気」（そういう政策を実行させるための活動・投票行動）も必要です。
明日、このような犠牲者を救うことはできないかも知れないけど、｢千里の道も一歩から」ということではないでしょうか？
（ＰＳ．大阪・西淀川の（虐待）死体遺棄事件の現場のアパートは警察署の寮の近くだった、との報道もありました。千里の道は険しそうです。
All this will not be solved in the first one hundred days. Nor will it be solved in the first one thousand days; nor even perhaps in our lifetime. But let us begin.）
先生ありがとうございました。
なるほど、傷害致死と殺人を一緒にしたところで、今度は過失致死との区別も問題となるのですね。よく分かりました。
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