横浜３人巻き添え死 「危険運転」見送り、家裁送致（asahi.com 2009年6月23日10時37分、2009年6月23日5時24分ウェブ魚拓）
横浜・３人巻き添え死、危険運転致死傷罪の適用見送りへ（2009年6月23日03時06分 読売新聞）
いくつかコメントしたいところがあるニュースです。
読売の記事がより詳細ですので引用します。
複数の捜査関係者によると、片側３車線の中央車線を走っていた少年の車が、交差点手前で右側に車線変更して赤信号で停車中の車を追い越し、交差点に進入して事故が起きたことが、少年の車と衝突した車を運転していた男性会社員（４１）（横浜市都筑区）や１０人以上の目撃者の証言などから裏付けられたとしている。
どの程度の信用性をもって裏付けられているのかが問題ですが、
少年は「交差点の手前では信号は黄色で、交差点に入ったら赤だった」と供述しており、地検は「少年が信号を見落とした可能性も否定しきれず、故意に赤信号を無視したと断定できない」と判断した。刑法で、信号無視による事故に危険運転致死傷罪が適用されるのは、運転手が「殊更に赤信号を無視した場合」などとされている。
記事で指摘されているように、この場合の危険運転致死傷罪が成立するためには、運転者が赤信号を故意に、つまり赤信号であることを認識していたにもかかわらず交差点に進入することが必要です。
脇見等の何らかの事情で赤信号を見落としていた場合は信号無視を理由とする危険運転致死傷罪にはなりません。
本件の被疑者は、「交差点の手前では信号は黄色で、交差点に入ったら赤だった」と供述しているようです。
そこで、本件では故意に赤信号を無視したかどうかが争点になるのですが、一般論的には、赤信号無視を客観的に立証することは容易ではありません。信号機の色は秒単位で刻々と変わりますから、事故直後の信号機の色を目撃した目撃者がいたとしても、事故当時の（より厳密には加害車両が交差点に進入した時点の）信号機の色が何色であったか確定することが困難な場合が多いです。
しかし、本件の場合は、「片側３車線の中央車線を走っていた少年の車が、交差点手前で右側に車線変更して赤信号で停車中の車を追い越し、交差点に進入」したことが目撃されているようです。
このような運転態様が認定されるとなると、被疑者の赤信号故意無視が強く推認されると思われます。
交差点で先行車両が停止しているということは、停止する理由すなわち信号が赤色であるという蓋然性がかなり高いです。
先行車の運転者が慎重運転の人であれば、黄色信号で停止している可能性がありますが、停止しようとしている先行車ではなくて、すでに停止している先行車を追い越したのであれば、赤信号無視の相当高度の蓋然性があるといっていいと思います。
目撃供述の具体性如何によっては被疑者が否認しても赤信号故意無視の認定は可能だったかも知れません。
しかし横浜地検は慎重姿勢を貫いたようです。
それが悪いと言っているのではありません。
たぶん、目撃者等の供述だけでは赤信号の故意無視は立証できないと考えたのでしょう。
検察の本来のあり方と言っていいと思います。
しかし、被疑者の「赤信号をわざと無視して交差点に入りました。」というような自供があれば、目撃者の供述が相当強力に自供を補強しそうですから、危険運転致死傷罪を認めない理由はありません。
要するに、この事件の検察の処理は、被疑者の自供の有無が適用罪名を左右したわけです。
ところで、朝日新聞の早朝の記事（魚拓をとったほう）には以下のようにあります。
捜査関係者によると、捜査では少年の車より先に交差点手前で停止した車の運転手や、通行人など複数の目撃者の証言が浮上。地検や県警はこれらの証言や物証などから、少年が赤信号を無視して交差点に入ったとの見方を強めた。だが、少年は「交差点手前では黄信号で、入ったときは赤だった」と信号無視を否認し、その後は黙秘を続けているという。このため、危険運転致死傷罪の適用で必要な「故意」の赤信号無視という点の立証が難しく、同罪の適用は見送った模様だ。
被疑者は、単純な否認供述をした後、黙秘を続けたようです。
この場合の黙秘は被疑者の防御手段としてとても有効だと思われます。
事故状況を説明しようとすると目撃者の供述と矛盾が生じる可能性があり、そうなると矛盾を追及されて自供に追い込まれたり、被疑者の供述は嘘だ、と認定される可能性が高くなるからです。
さてここまで考えてくると、このような事情を知った被害者遺族の皆さんはどう思うだろうか、という問題が私の頭の中に浮かびます。
被疑者はなぜ黙秘するんだ、どうして真実を語らないんだ、という思いがあるかも知れません。
そして、その思いは、警察や検察に対して、「どうしてもっと被疑者を厳しく追及しないんだ。」という批判の形になるかも知れません。
目撃者の話に基づけば、常識的には被疑者の赤信号故意無視は明らかなのに、被疑者が自供しないからといってそれが裁判で認定できないのはおかしい、という気持ちが遺族や遺族側の皆さんに生じても不思議ではありません。
しかし、自白偏重を排して、「疑わしきは被疑者被告人の利益に」という原則を適用すれば、今回の横浜地検のような判断に至ることもまた全く不思議はないことです。
このような問題が生じる原因の一つに、危険運転致死傷罪の規定の仕方があります。
赤信号無視の危険運転致死傷罪は、運転者の赤信号をわざと無視するという認識をその中核に置いています。
運転者つまり被疑者の認識が問題になるのですから、認識を認定する証拠の中心は被疑者の供述ということになります。（※）
つまり、危険運転致死傷罪は、その立証において供述依存度がとても高い犯罪だと言えるのです。
だから自供がないと立件しにくいことになります。
これは、被疑者としては言い逃れがしやすいということを意味します。
言い逃れを許さないという思いが取調官に強すぎると、無理な取調べをする傾向が生じます。
そうすると、本当に故意無視ではない被疑者が虚偽自白を強要されるという危険性が生じます。
虚偽自白強要をしないことを重視して追究的な取調べを控えれば、本当は故意無視をした被疑者が言い逃れをする可能性が高まります。
以前から、私は危険運転致死傷罪の規定の仕方が下手くそだと言っていますが、それは、このような供述依存性が強い定め方をしているというところも含めてそう言っています。
最近のこのブログでの議論を考える実例として紹介しました。
※追記
ブコメにつぎのようなものがありました。
殺人罪で否認しても殺意が認定されることはあるので、危険運転致死傷罪も否認での認定が出来る場合もありそう。証拠や証言の度合いによるのかな。
自供がなくても故意無視を認定できる場合はあると思いますが、殺人罪における殺意は、行為の外形（凶器の殺傷能力とか攻撃の執拗さなど）から相当程度判断可能なのに比べ、赤信号の故意無視か見落としかは、運転行為の外形からは識別困難な場合が多いです。
本件では、停止車両を追い越しているという特徴的な行為がありますが、単純に交差点に減速しないで進入したという事案では、車の動きを見ているだけでは故意無視か過失による見落としかは区別できません。
黙秘権は、重い罪を逃れたり、刑責そのものを免れる負の効果は否定できません。しかし中世以降の拷問等自白強要の冤罪防止として認められた重要な歴史的人権ですから、国民は等しく負の効果をも甘受せざるを得ないと思います。それが多数の社会正義に反してもです。多数者の法益をもってしても奪えない少数者の権利それが人権だからです。
飲酒して運転すること自体は故意ですから、これを危険運転の構成要件にしてしまえば飲酒での事故は危険運転に１００％該当するような気もしますが。
信号無視はうっかりを否定できないし、黄色信号でつっこんだりした場合は故意とは言いにくいので難しいですね。
モトケン先生の解説を読ませて頂き、なるほどなと思えるのですが、
＞No.2 元外科医様
と同じような思いも有り、薬物・飲酒等が絡んで来たとき、検査で酩酊状態までは立証できなかったが、飲酒は確実だった場合でも供述依存度は高いままなのでしょうか。
（福岡３児死亡事故を思い浮かべてしまいました）
しかし、この事故の場合は被疑者の言い分も有り得るとは思いますので、危険な故意を立証するのが難しいのは良く分かります。
それと遺族感情について考えた時、ぶつけられた車に対して、「もう少し前方の左右確認をしてから発進すれば良かったのになあ」という思いも、ふと浮かんだりはしないでしょうか。ぶつけられた車の方には難癖のようで申し訳ありませんが・・。
やはり私は、前の車が赤信号で停止していた、という部分に引っかかってしまいます。
もし、少年の車が「黄色進入」なら前の車がある種の｢妨害」をしていたとも取れますから、停止していた車にも何らかの責任があるように思います。
しかし、前の車が赤信号で停止していたのに「それを避けようとした」のなら（進行方向側か対向車線側かのどちら側を追い越したのかによって罪の重さは変わるでしょうが）、｢わき見・見落とし」というような「過失」ではなくある種の「故意」を感じてしまい、素人としては納得できません。
朝日新聞の記事を読んでのモトケンさんの次の感想。
＞被疑者は、単純な否認供述をした後、黙秘を続けたようです。
＞この場合の黙秘は被疑者の防御手段としてとても有効だと思われます。
余計なことは喋らない、喋れば喋るほどツッコミ所を捜査側に与えるから。この発想は被疑者の少年独自のものとは思えません。多分刑事弁護の経験豊富な弁護士が、少年に助言しているように思えるのです。
そしてその弁護士は、相当に刑事弁護の経験豊富な方だと思われます。少なくとも最近10年間は刑事弁護をやったことがないような弁護士では、こうした実戦的な助言は無理ではないかと思います。
まぁそもそもが、喋れば喋るほどツッコミ所を相手に与えて不利になる、というディフェンスの初歩的な戦術概念が理解できていない、中堅の弁護士さんもおられるようですが･･･（以下自粛
家裁から逆送されると，検察官としては原則として起訴義務生じます（少年法４５条５号）。
危険運転致死罪は裁判員対象事件なので，それを嫌がったのではないかという穿った見方もしてしまいます。
裁判員制度を意識し地検が起訴に慎重？/横浜地裁 受理件数減少
http://www.kanaloco.jp/localnews/entry/entryivjun090698/
＞穿った見方もしてしまいます。
＞裁判員制度を意識し地検が起訴に慎重？
裁判員制度を意識して被疑者が供述に慎重？(。_・☆＼ ベキバキ
裁判員用の審理の準備は大変だからサボっているのでは？という個人的な邪推です。
証拠関係は分かりませんが，共謀の範囲に錯誤があったとして，強盗致傷の被疑事実を，恐喝・傷害で起訴するということは，余り考えられないのではないのかな？と。
これまでなら，強盗致傷で起訴して，ひょっとしたら恐喝・傷害の認定落ちになるかも？という感じだったのではないかと思うのですが・・・
車の運転したことないから良く判らないのですが、免許取り立ての子なので故意に無視したというよりちゃんと見れてなかったんじゃないかと想像しますが運転する人はどう思うんでしょうね。
お酒飲んでたとかカーチェイスしてたとかものすごいスピード違反とかじゃなければ危険運転致死傷罪は無理なのでは？
本人がうっかりって言ってれば「なぜうっかりなんだ？！」って言われてもそれ以上どうなるものでもなさそうな。
そして裁判員に判断させるとかはさらに違う気がします。
裁判員制度やだな〜。
なぜ、刑法第二百八条の二（危険運転致死傷）１項の『その進行を制御することが困難な高速度で、又はその進行を制御する技能を有しないで自動車を走行させ、よって人を死傷させた者も、同様とする。』が適用されなかったのでしょうか？
＞もし、少年の車が「黄色進入」なら前の車がある種の｢妨害」をしていたとも取れますから、停止していた車にも何らかの責任があるように思います。
これは、納得がいきません。「黄色」信号は青から変わった直後でとても安全に停止できない場合を除いて、基本的に停止するものです。慎重運転でもなんでもなく、単に交通ルールを守っているだけです。なぜそれが「妨害」になり、何らかの責任を負わされるのか、理解に苦しみます。
交差点の手前で信号待ち停車の車を、車線変更して避けていた事実が、「制御困難な高速度」とは言えない明白な証拠となります。
車線変更で避けた＝コントロール出来た、という図式かと。
その抗弁では、被害者の方々を回避できなかった＝コントロールできなかった、との主張を許してしまいませんか？
>故意に無視したというよりちゃんと見れてなかったんじゃないか
多分、違うと思います。
「黄色だった」も、被疑者の主観においては必ずしもウソではない可能性もあると思います。
私の想像なんですが、被疑者の前方で停止した車が交通規則どおりに黄色の信号で停止したところ、後続の被疑者が「なんで停まるんだよ！まだ赤じゃないんだから行けるだろこの馬鹿！」とばかりに停止した車を追い抜いて交差点に進入した・・・って感じじゃないかと想像してます。
他車と衝突して弾き飛ばされた状況の自動車の進行を制御する技能を有するドライバーなど、この地球上に存在するとは思われません。
報道内容を見るに、他の車に衝突している点で『その進行を制御することが困難な高速度で、又はその進行を制御する技能を有しないで自動車を走行させ』た状態にあり、自車が歩道に乗り上げて『よって人を死傷させた』事案と解されませんでしょうか？
横から失礼
＞その抗弁では、被害者の方々を回避できなかった＝コントロールできなかった、との主張を許してしまいませんか？
そうはなりません。
必ずしも
衝突した ＝ 衝突を回避できなかった
ではありません。
（衝突した ← その衝突は回避可能だった ＝ コントロール可能だった） → 過失あり
という感じです。
これから勉強なのですが。
想定されたものが「カーブを曲がりきれない、判っていても止まりきれない」であれば「交差点に入ってから気が付いた車両」は含まれない感じですが、指針とか有るんでしょうか？
車両同士が衝突するまでの状況が制御可能かどうかの判断対象であり、衝突後に歩行者をはねるまでの経緯は制御不能下の因果関係の問題と考えられます。
結果回避が可能かどうかの問題です。
モトケンさんも（なぜか私宛のレスで）書いてますが、それだけでは解されません。
そもそも側突を食らったのは「制御困難な速度で進行していたから」ですか？違いますよね。
ところでこれは余談ですが、赤信号で停車していた車列から、交差点手前の路地に右折で入りたいばかりに反対車線に入り込み、先の交差点から左折で入ってきた対向車と正面衝突事故を起こした運転者に対して（速度自体は低速だったけれど）危険運転致死傷罪の適用を裁判所が認めたケースはありました。
惰眠さん，タイカレーさん
(1)その進行を制御することが困難な高速度で、
又は
(2)その進行を制御する技能を有しないで
自動車を走行させ
(1)と(2)は別の要件なのでどちらを問題にしているか明示した方が議論が整理できると思われます。
No.19のモトケンさんは，No.15の惰眠さんのコメントに対して，ぶつかった後に制御する技能があったかではなく，ぶつかる前に制御する技能があったかが構成要件の問題だと指摘しているのだと思われます。
まぁ私のコメントが舌足らずだったのか知れませんが
運転技量を云々されるのは事故を引き起こす局面までなので、
既に事故を起こした車が吹っ飛んでいった先で3人が巻き添え死したことをもって危険運転致死が適用できないか？と考えるのはナンセンスだと言いたかったわけです。
二つ、ささいな疑問があります。
１．>『車両同士が衝突するまでの状況が制御可能かどうかの判断対象であり、衝突後に歩行者をはねるまでの経緯は制御不能下の因果関係の問題と考えられます。』
とのことでしたら、車両同士の衝突の結果の歩道での巻き添え事故死は、基本的に、刑法第二百八条の二（危険運転致死傷）１項の、『よって人を死傷させた者』と認定されない、との解釈でしょうか？
もし、赤信号無視をしていても、車両同士の衝突の結果の歩道での巻き添え事故死が危険運転致死傷にならないのでしたら、、、、悲しいです。
２．対向の右折車は停止中だったのでしょうか、動いていたのでしょうか。停止中でしたら（危険運転致死傷）と認定されやすく、動いていたら対向車にも過失があるので（危険運転致死傷）と認定されにくくなりそうに思いますが、素人の淺知恵でしょうか。
＞『よって人を死傷させた者』と認定されない、との解釈でしょうか？
因果関係があれば認定される、ということです。
本件では、因果関係はあると見て問題ないと思います。
危険運転致死傷罪の議論と自動車運転過失致死傷罪の議論をごっちゃにしているところがありますので、わかりにくかったかも知れません。
＞２．対向の右折車は停止中だったのでしょうか、動いていたのでしょうか
今回の報道では明確ではないと思います。
報道以上のことは分かりません。
対向車の動静は、信号の色の判断には影響しそうですが、今回の犯罪認定において決定的ではないと思います。
No.11 検査員さま
すこし言葉足らずだったかもしれません。
私は、もし黄色だったのなら、後から（恐らく）かなりのスピードで突っ込んできている車を（ルームミラーなどで）視認して、前の車も止まらなかったかもしれない、といいたかったのです。加害者側の故意による信号無視を立証できないのかな？と思い、加害者側が｢黄色に変わったか変わっていないかぐらいで止まった前の車にも責任がある」と言い出すのではないか？なんて心配をしてしまいました。
ですから、前の車が止まっていた、と言うことは、交差点が全赤になっていた可能性が高いのではないか、それを避けるために意識的な操作をして交差点に突っ込んだ車にはそれなりの故意を認めることができないのだろうか、と思うのです。
〉 赤信号無視の危険運転致死傷罪は、運転者の赤信号
〉をわざと無視するという認識をその中核に置いていま
〉す。
〉 運転者つまり被疑者の認識が問題になるのですから、
〉認識を認定する証拠の中心は被疑者の供述ということ
〉になります。（※）
へ つまり、危険運転致死傷罪は、その立証において供
〉述依存度がとても高い犯罪だと言えるのです。
〉 だから自供がないと立件しにくいことになります。
福岡の事件でも、酔っ払っていてわけがわからないなら危険運転致死傷だが、或る程度正気を保っていたのでそれにはあたらない、というような話があって（責任能力とか故意とか）違和感があったのですが、法律そのものがヘンなのだと考えれば理解できます。
立法含めての前向きな制度設計議論を今後とも期待しています。
色々考えさせられます。（間違いがあれば、ご指摘下さい。）
１）危険運転致死傷罪が適用されないので、3人の命がなくなったが、刑事罰としては道路交通法による罰金刑となった。危険運転致死傷罪でもなく、道路交通法の交通事故の場合の措置（72条1項）、酒気帯び運転等などに違反していなければ、罰金刑で終わる。
２）18歳、19歳という未成年者は、罰金刑であれば、家庭裁判所への送致となる。本件は重大事件であるから、通常の裁判に近いかも知れないが、少年が黙秘を続けた場合、追求は困難が伴うと思う。
３）本エントリーでモトケンさんが指摘されている危険運転致死傷罪の問題点や道路交通法の罰則条項は、どう見直すべきななのか？ 道路交通法は、普通免許を18歳以上としている。少年法の適用と、道路交通法の整合性について特例を設ける必要はないのか？
４）被害者、被害者遺族の感情は、どうか。光市事件より死亡者数が多い本件で、罰金のみ。裁判は家庭裁判所のみで終了。
>１）危険運転致死傷罪が適用されない
にだけコメント。
元のニュースを確認すると、自動車運転過失致死傷罪の非行事実で横浜家裁に送致されているので、最高刑が懲役７年 のようです。
３人の巻き添え事故死がありますから、罰金刑では済まないのでは？
横浜地検は、本件について危険運転致死傷罪の適用は見送りましたが、自動車運転過失致死傷罪として家裁送致しています。
横浜地検は、刑事処分相当の意見を付したようです。
家裁が、刑事処分相当と認めれば検察官に送致します（いわゆる逆送）。
そうなると、検察官がこの少年を自動車運転過失致死傷罪で起訴することになるはずです。
自動車運転過失致死傷罪の法定刑は、七年以下の懲役若しくは禁錮又は百万円以下の罰金です。
かなり重い懲役刑の求刑が予想されます。
ささいな？ さん、モトケンさん
失礼しました。私の読み飛ばしです。
自動車運転過失致死傷罪は、刑法211条2項と理解します。
その結果、少年法42条により、検察から家庭裁判所への送致となった。
私の、コメント28番を全面的に取り消します。
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