答は簡単です。
裁判官が、判断基準を変えるだけで解決するからです。
制度を変える必要はありません。
検察官がいくら勾留してくれ、保釈には反対だ、と言っても、裁判官が釈放すべきと考えればそれでおしまいです。
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答は簡単です。
裁判官が、判断基準を変えるだけで解決するからです。
制度を変える必要はありません。
検察官がいくら勾留してくれ、保釈には反対だ、と言っても、裁判官が釈放すべきと考えればそれでおしまいです。
トラックバックURL: http://motoken.net/mt/mt-tb.cgi/2676
ただ、保釈して逃亡した許永中事件や長期不動事件を省みるため、令状部（第１回公判前）は受訴裁判所に迷惑をかけるのを恐れて、保釈を渋る傾向があります。また、保釈した途端に否認に転じて、長期公判となる例もよく引き合いに出されます。
裁判所（合議体）や裁判官（単独・第１回公判前）が、長期公判や長期不動事件を恐れている限り、人質司法は減らない可能性が高いと思います。
まれに勾留却下で在宅事件に切り替わった途端に長期逃亡となる被疑者もいるため、それを恐れる裁判官がいる限り、人質司法は減らないと思います。
要するに、裁判官（裁判所）は、犯人が逃走しても否認長期公判になってもやむを得ない、そのために受訴裁判所や捜査機関が迷惑を被ってもやむを得ない（運が悪いだけ）という覚悟や割り切りが是非必要でしょう。
否認長期公判になってしまうことを何故恐れる必要があるのか判らないのですが、それはさておき、被告人が逃亡しちゃ拙いのは確かでして、であればこそ、裁判官には、そうなってしまわないかどうかを十分に検討する時間を提供できないものでしょうか。
私は裁判官の人数が不足してるのだと思います。年間10万件くらいの刑事事件があるなかで、毎日一件つつ判決文を書かなきゃならないような状況は、明らかに時間が無さ過ぎる、そう思います。
御趣旨は概ね理解できた、ような気がします。ありがとうございました。
たしかに否認というのは、別に虚偽の弁解を述べているのではなく、単に、検察官とは意見の相違があるというだけなのですよね。
本来、否認事件でこそ検察官や裁判官には健全な想像力を働かせて頂いて、容疑者の説明が正しいかも知れないから、身柄を拘束しないでおこうという判断をして欲しいものです。
でも、現場の方々には（諸般の事情により）そのような判断ができないということであれば、否認事件では原則として逮捕や拘束決定をできないとか、拘束後に否認をしたら即座に身柄を解放しなければならないとか、そのような立法措置が必要なのかも知れませんね。
たしかに、論理上の問題としては、否認が「虚偽の弁解」である可能性も排除されませんね。失礼しました。
ただ、弁解が虚偽かどうかは、判決の結論において判断されればよいことですし、それが本来のありかただと思いますから、否認を理由に（否認が「虚偽の弁解」である可能性があるとして）身柄を拘束するのは間違いですよね。
人質司法が裁判官の問題であることは分かりました。
ところで、公務員の不祥事や怠慢、不公正な業務については、国会の場でそれが指摘され、問題が明るみに出たり、マスコミが取り上げて国民の知るところとなったりすることが多いですが、人質司法について、たとえば最高裁判所や東京裁判所の長官や局長が答弁するところは見たことがないです。人質司法に対する最高裁の見解も聞いたことがないです。
もちろん、政治的圧力で判決を変えさせるとかはいけないと思いますけど、人質司法を是正すること、そのための追及をすることについては、政党間での異論が出にくいところだと思います。人質司法問題が国会質問等に出ないようにする最高裁の圧力があるのでしょうか？
ともあれ、民主党が政権を取った際には、検察改革に加えて、裁判所改革、裁判官改革もお願いしたいですね！ ヤミ専従などよりよほど深刻な問題だと思います。
ヤミ専従で消えていく人件費だけでも裁判官の増員にまわせればよいのですが。
ttxt様
お気持ちは分かりますが、裁判官の人数は「裁判所職員定員法」で定められていますので、法改正が前提となるため単純な人件費予算の有無は関係ありません。
もちろん公務員削減ムードが影響している可能性はありますが、特殊な職業ですので、その中でも大幅な定員増を説明できるだけの理由があれば増改正は可能でしょう。
しかし、このご時世に大幅増を叶えようと思えば、裁判官自らの仕事を否定するくらいの理由付け（要根拠）が必要です。（曰く「裁判業務に重大な支障が生じている」「適正な裁判執行ができない」等々）
仮に「人質司法」が人員不足が一因だとしても、裁判官が「人手不足でいい加減な審査しかできていない」と根拠付きで説明したり、国会議員にレクチャーしたりはできないでしょう。
裁判所の予算を聖域化しちゃうとか（＾＾； とかそんな冗談はさておき。
＞裁判官が、判断基準を変えるだけで解決するからです。
＞制度を変える必要はありません。
判断基準を変えるだけで解決するということは、判断基準を元に戻せば何もかもが元通りになるということでもあります。何の解決にもなってないような気がするんですが・・・（＾＾；
自白を重視する考え方があると聞きます。このあたりを検討してみるのも一つの手かも知れません。
また抜本的な法改正（改憲も含む）が必要となるのかも知れませんが、裁判官の公選制を導入してみるのも良いのではないかと、個人的に妄想することがあります。
試験に受かっただけの自分が、誰かの人生を左右するような判断を下さなきゃいけない、この重圧は、殆どの人間にとって、耐え切れるようなものではないと思います。
それを「言い逃れ」できるようにしてあげるんです。自分は民主的に選ばれたのだから、もし自分の判断に過ちがあったとしても、それは自分だけの責任ではなくて、自分を選んだ人々にも責任はあるのだと（＾＾；
それくらいしとかないと、自由心証主義とやらで、誰からも独立した立場で、自分ひとりの責任で、保釈だ勾留だ有罪だ無罪だの判断を下すだなんて、やってられないんじゃないでしょうか。
刑訴法だけの問題ではないのでは？ つまり制度、仕組みを根本から変えなきゃ駄目なんじゃないでしょうか？
＞刑訴法だけの問題ではないのでは？ つまり制度、仕組みを根本から変えなきゃ駄目なんじゃないでしょうか？
日本の刑事司法制度は、裁判官を信頼して、裁判官に相当広範な裁量権を与えています。
制度を根本から変えるとなりますと、この辺りを変えなければならないんですが、そうなると、今度は誰を一番信頼することになるのでしょうか？
裁判官の公選制を導入するということは、司法に多数決原理を持ち込むことになります。
それはそれで問題の原因になります。
＞今度は誰を一番信頼することになるのでしょうか？
刑事司法制度の下、裁判官に権限が集中するのは当然のことだと思います。難しそうなのは、裁判所（裁判官）に、私達国民からの一番の信頼を置けるようにすることだと思います。
現時点で、司法制度は裁判官を信頼してるのでしょうけど、我々国民は裁判官を信頼してるかと云えば必ずしもそうではありません。国民から大して信頼されてもいないのに、ただ重たい責任だけ押し付けられてしまってるのが、大変お気の毒でありますが、今の裁判所（裁判官たち）の現実ではないかと。
↓
＃飛躍を感じられるかも知れませんが・・・
↓
なので、裁判所の仕事ぶりがお役所化しちゃうのも無理からぬところではないかと思います。
人質司法を生み出してる主犯格は確かに裁判官であるかも知れません。が、そうであるなら、その裁判官の置かれた状況を見直し改善しない限り、解決は有り得ない、そう思います。しかも徹底的に。
裁判官を信頼して成り立っている現行の刑事司法制度であるならば、いっそのこともっと大胆に信頼しちゃうのも良いのではないかと思います。司法に係る予算も独立させちゃうなんて如何でしょう＾＾ 例えば相続税は全て裁判所に納付するとか（＾＾； 予算執行は裁判官の「自治」に任すなんて如何かと思いますです。
まあ公選制というのは妄想のレベルでありますが、狙いは多数決原理の導入ではなくて、選挙で選ばれたという意識改革から始めてはどうかという思いからでした。
制度を根本から変えるべきと書きましたが、言葉が不適切でした。変えるんじゃない、根本から直すべきなのだと思います。三権分立の原則に則り、忠実に直してゆくのが、こうした司法制度の抱える問題解決の近道なのではないかと思います。
各種調査結果を見る限り、日本人は裁判員制度に対する不安が強いようです。これは、裁判官に対する信頼が反映されているのではないかと思います。
「我々国民は～」と言い切っちゃ語弊がありますね、私の云いすぎでした。申し訳ないです。「我々国民の相当数は～」とか書くべきでした。
それから、もう一つ補足させて頂くと、信頼していないと云う事が即ち不安を感じてるではないんです。裁判官が信頼されていないとは、どちらかと云うと不安があるではなくて、裁判官に対してのみならず自分の国の刑事司法制度に対して無関心であるということです。無関心でありながら信頼してますなんて、それは有り得ない（＾＾；
以下余談ですが、国民の司法に対する関心を持って貰うことが裁判員制度導入の一つの狙いだとしたら、被疑者の人権は「人質」から「生け贄」に格上げされたのかなと思ってしまいます。人質司法ならぬ生け贄司法なんて言葉が流行らなければいいんですが。。
>「我々国民の相当数は～」とか書くべきでした。
青木様は裁判官を信頼されていないのかもしれませんが、神戸新聞が今年5月に行った街頭アンケートでは、司法関係者への信頼度の項目で、裁判官は弁護士や検察、警察を20ポイント近く引き離して、73.3％とダントツだったそうですよ。
神戸新聞は、信頼されることと期待されることとを、どのように区別されてるのでしょうね・・・。
私は昨晩「無関心でありながら信頼するということは有り得ない」と申しました。
しかしそれは極めて属人的な場面においてのことかも知れません。ちょっとこのあたり、自分の中でもう一度整理してみます。
制度化された社会的関係の世界は、無関心さを許容した上で成り立っているではないかと。。
自己完結しそうで申し訳ないです。
No.10でモトケンさんは
＞日本の刑事司法制度は、裁判官を信頼して、裁判官に相当広範な裁量権を
＞与えています。
と仰いました。これは、三権分立の中で裁判制度の仕組み上、どこに権限を委譲してゆくかという組織・制度設計の話しだった・・・。
信頼とは何かとかグタグタ云うような話ではないのに。
しかし私は No.9で
＞つまり制度、仕組みを根本から変えなきゃ駄目なんじゃないでしょうか？
と云いながら、信頼という言葉に反応して、極めて個人的な意識の問題に回帰してしまった。のでした。
裁判官の意識の中で、判断基準を変えれば済む話ではないのではないかと云いながら、です。
制度上の問題として捉えるのであれば、一貫してそこに論点をおくべきでした。
どうも私一人が勝手に一人で混乱してしまったようで、申し訳ありません。
以下、私の中で軌道修正を試みたいと思います。
もう一度、No.10の
＞今度は誰を一番信頼することになるのでしょうか？
に立ち返りたいと思います。
権限が裁判官に集中するのは妥当であるという私の思いは変わりません。
それをより強力なものにしてはどうか、という方向性があると思いますが、具体的には、各地方裁判所の人員計画や定数、人事異動等を自分達で決められるように、司法・立法・行政府の権限分掌事項を見直すことなど挙げられると思います。（荒唐無稽に聞こえるかも知れませんがご容赦ください）
もうすこし現実的に、今すぐできそうな対策として、私があと一つ思うのは、検察庁と裁判所との人事交流が現在も行なわれているようですけれど、これを日弁連とも交流を持つようにしては如何かと。
ほんとは判ケン交流なんてないほうが良いのですが（司法の中立性を求めたいです）、失くすわけにゆかないなら、日弁連とも交流を持ってもらいたい。既にやってるのかも知れませんが、刑事事件を数多く担当した弁護士さん出身の裁判官て、実際に何人かいらっしゃるのでしょうか？
例えば検察出身の判事が担当する事案には必ず弁護士出身の判事と合議制としなければならない等。
そうやってバランスを取るのが良いと思案します。
人質司法を失くすためには、裁判所の強化と、検察庁との結びつきを薄めることの二つが必要だと思います。
>青木さま
ハスカップさんからの伝言（ママ）です。
===================================
理想を追求するお気持ちは痛いほど判りますが、制度変更の予算措置を考えると、論点を絞ると具体的な効果が判定できなと（実効性の疎明不十分だと質問されて）予算がつかないことがあります。これで私は難度も涙を呑みました。
===================================
次のリンク先をみると、判ケン交流が問題とされる場面が違うみたいです。刑事は僅かで民事や行政の訴訟が主のようです。
http://www.cc.matsuyama-u.ac.jp/~tamura/hannkenkouryuu.html
それから刑事弁護豊富な弁護士がそもそも少ない、民事での弁護士任官も少ないと聞いていますが、現実問題として司法権力に対して被告人擁護をしてきた人が判事になるのかというと、難しそうです。
青木様のご提案の多くは日弁連の要望主旨とも合致しているようです。
裁判官に金と人をふんだんに与えれば問題が解決するかといえば、必ずしもそういう訳ではないでしょうし、日弁連の理想と国民の理想とは必ずしも合致しないでしょうけど。
もちろん何が国民にとってベターなのかは追求していく必要があると思いますが、現実社会では刑事司法はあくまで社会制度全体の一面に過ぎず、社会全体のバランスを考慮しつつ、制度改善を進めていく必要があると思います。
無尽蔵ではない財源の中から、大量の税金を投入することに見合う効果が期待できるのかどうか。それを裁判所側が、その立場で疎明できるのか。そういう意味で№8のコメントを書かせていただいた積りです。
ただ、青木様もそういったことは百も承知で、理想に近づけるために青木様が考えられたことを書かれたのだと思います。
それこそ百年続いた制度を改めるのは、一朝一夕には行かないと思いますが、始めなければ何も変わらないのですから。
ちなみに判事と検事の交流は、ともに公務員ですから交流終了後の復職や処遇の問題も含め比較的スムーズに行くと思いますが、弁護士さんの多くは個人事業主ですから、顧客・事務所の問題や交流中及び交流終了後の処遇など解決が必要な問題点は多くあると思います。
不適法な法律案件の最終ストッパーは，制度上も裁判所に間違いないと思います。地裁がチョンボしても高裁が救済しますし（この前の再審），地裁高裁がドジを踏んでも最高裁が是正する（この前の痴漢逆転最高裁無罪）と思います。その意味で人質司法も，第一義的に主たるものとして，最終的判断者の裁判官の責任と問題に間違いないでしょう。
ただ，裁判官も人間ですから間違いは生じますので（それを前提の三審制と再審制度），人質司法問題に関しても，側面から警察検察と弁護士も協力することが望ましいと思います。捜査側の処分比例原則と刑の謙抑性（自制心）と弁護士の監査機能（チェック機能）がそれです。二次的副次的に過ぎなくても，機能面では重視されてしかるべきでしょう。
いずれにしろ，そのためには，外形的環境条件としても，（被疑者国選制度のように）組織と人員と予算の拡充と整備が必要なのは，これまで種々コメントがなされたとおりだと思いますが，直接の利害を有する業界団体（犯罪者集団？）や圧力団体（冤罪防止の市民運動等）も国会に影響力を持つ票に結びつかないのが難点であり残念なところではないでしょうか。
とすると，日弁連という職能集団に奮起してもらうのが一番いいような感じがします。最終責任者の裁判所は高度な政治的中立性を求められて動きがとれないでしょうし。
一般人からの印象
人質司法という言葉のイメージでいうと
任意同行での長時間拘束も含まれる印象があります。
本来なら司法とは関係ないうえに、私の周りの印象なので
偏っている可能性もありますが。
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