| Project/Area Number |
09420011
|
|---|
| Research Category |
Grant-in-Aid for Scientific Research (B)
|
| Allocation Type | Single-year Grants |
|---|
| Section | 一般 |
|---|
| Research Field |
Criminal law
|
|---|
| Research Institution | KYOTO UNIVERSITY |
|---|
Principal Investigator |
NAKAMORI Yoshihiko Kyoto University, Graduate School of Law, Professor, 大学院・法学研究科, 教授 (40025151)
|
|---|
| Co-Investigator(Kenkyū-buntansha) |
HASHIDA Hisashi Kyoto-Industrial University, Faculty of Law, Full-time Lecturer, 法学部, 専任講師 (10278434)
ODA Naoki Hiroshima University, Faculty of Law, Associate Professor, 法学部, 助教授 (10194557)
IWAMA Yasuo Osaka-Gakuin University, Faculty of Law, Associate Professor, 法学部, 助教授 (30211767)
MATSUMIYA Takaaki Ritsumeikan University, Faculty of Law, Professor, 法学部, 教授 (80199851)
MATSUO Mitsumasa Himezi-Dokkyo University, Faculty of Law, Professor, 法学部, 教授 (00199762)
|
|---|
| Project Period (FY) |
1997 – 1998
|
| Project Status |
Completed (Fiscal Year 1998)
|
| Budget Amount *help |
¥8,200,000 (Direct Cost: ¥8,200,000)
Fiscal Year 1998: ¥2,000,000 (Direct Cost: ¥2,000,000)
Fiscal Year 1997: ¥6,200,000 (Direct Cost: ¥6,200,000)
|
|---|
| Keywords | act out of necessity / collision of obligations / Art.37 Jap.Penal Code / confirmation of law / justification of a compelled criminal act / cannibalism within an endangered group / use of weapon by police official / 法確証 / 優越的利益の保護 / 法確証の利益 |
|---|
| Research Abstract |
1. According to the popular view in Japan, an act out of necessity should be completely justified. But from the historical analysis of Art.37 Jap. Penal Code we have obtained another knowledge that law maker had held an act out of necessity is the incomplete justification, i.e., that he didn't deny this defense involves character of excuse.
2. Although the major part of criminalist insist that a compelled criminal act is not justified but excused as the actor is on the side of the unlawful, the view is not to be supported. It is because nobody can demand that the compelled actor should confirm the lawful. He lays his own damage inflicted by the threatener on a third party out of sheer necessity.
3. When members of an endangered group sacrifice a member in order to rescue the rest of all, their action isn't justified because human life must not be a mean for something else. But in the case that the member sacrificed causes the danger of group the homicide is exceptionally permitted, for to remove this risk is his duty that has to be fulfilled even by his own life.
4. Contrary to the influential view that a collision of active obligation with passive one is within the range of Art.37 Jap. Penal Code, we have come to the conclusion that this collision is to be admitted as an independent justification because Art.37 can't always resolve the problem adequately.
5. The use of weapon by police official accompanied with physical injury can't be permitted only because Art.37 Jap. Penal Code is applicable to it. Including this, justification requires that the use of weapon itself obeys conditions regulated by Art.7 l.S.Law concerning Execution of Duties of Police Officials.
|
