| Project/Area Number |
16203005
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| Research Category |
Grant-in-Aid for Scientific Research (A)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
Criminal law
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| Research Institution | Hitotsubashi University |
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Principal Investigator |
MURAOKA Keiichi Hitotsubashi University, POSTGRADUATE SCHOOL OF LAW, PROFESSOR (40345442)
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| Co-Investigator(Kenkyū-buntansha) |
KAWASAKI Hideaki KWANSEI-GAKUIN UNIVERSITY, POSTGRADUATE SCHOOL OF LAW, PROFESSOR (30127485)
TAKADA Akimasa OSAKA CITY UNIVERSITY, POSTGRADUATE SCHOOL OF LAW, PROFESSOR (50116472)
SHIRATORI Yuji HOKKAIDO UNIVERSITY, POSTGRADUATE SCHOOL OF LAW, PROFESSOR (10171050)
TABUCHI Koji KAGAWA UNIVERSITY, POSTGRADUATE SCHOOL OF LAW, PROFESSOR (20242753)
IBUSUKI Makoto RITSUMEIKAN UNIVERSITY, POSTGRADUATE SCHOOL OF LAW, PROFESSOR (70211753)
後藤 昭 一橋大学, 大学院・法学研究科, 教授 (00143256)
大出 良知 東京経済大学, 現代法学部, 教授 (50115440)
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| Project Period (FY) |
2004 – 2007
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| Project Status |
Completed (Fiscal Year 2007)
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| Budget Amount *help |
¥36,140,000 (Direct Cost: ¥27,800,000、Indirect Cost: ¥8,340,000)
Fiscal Year 2007: ¥7,540,000 (Direct Cost: ¥5,800,000、Indirect Cost: ¥1,740,000)
Fiscal Year 2006: ¥9,360,000 (Direct Cost: ¥7,200,000、Indirect Cost: ¥2,160,000)
Fiscal Year 2005: ¥9,360,000 (Direct Cost: ¥7,200,000、Indirect Cost: ¥2,160,000)
Fiscal Year 2004: ¥9,880,000 (Direct Cost: ¥7,600,000、Indirect Cost: ¥2,280,000)
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| Keywords | CRIMINAL DEFENSE COUNSEL / LEGAL ETHICS / ETHICS FOR THE ATTORNEY / PROSECUTORIAL ETHICS / RULES OF PROFESSIONAL CONDUCT / DISCIPLINARY ACTION / RIGHT TO INTERVIEW WITH THE ACCUSED / SHIBUSHI CASE / 倫理規範 / 代用監獄 / 適正捜査 / 誠実義務 / 真実義務 / 秘密交通権 / 懲戒責任 / 2005年デクレ / 弁護士懲戒事例 / 接見交通 / ABAモデル・ルール / 弁護士業務基本規程 / 専門家裁量 / 事前証人面接権 / 外部交通権 / 接見禁止決定 / 秘匿特権 |
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| Research Abstract |
New findings through this research are as follows ;
1 While the judge and the prosecutor consider the defence counsel as a kind of judicial organ, the defence counsel considers himself as a representative of the client. This discrepancy of the understanding of the roles will cause a difference of the approach for the counsel to solve the ethical dilemma. Nowadays, there is a strong tendency at home and abroad to emphasize a lawyer's nature of the public organ rather than the one of the representative. But, given the confession-centered investigation in Japan, we should strike a balance between these two natures of the counsel, mainly based on the stance in favor of the nature of the representative in deciding the ethical approach. However, in reality, the defence counsel plays multi-faced roles under the specific circumstances. We should notice that there are several ways for the counsel to solve the dilemma in accordance with the different role under the specified circumstances.
2 Behin
… More
d the disciplinary cases against the counsel who is condemned to abuse the right to interview with the accused, we can identify a specific reason that the defence counsel in Japan has to play a role of his family by exercising the citizen's right to communicate with the accused instead of the family who is prohibited to do so by the judicial order. Accordingly, a final disciplinary measure will depend on whichever stance the disciplinary board will take as for the role of the counsel. In real disciplinary proceedings, the board normally adopts a test of the professional discretion considering the total circumstances so that it may reach a conclusion that there is virtually no “misconduct" which results in any disciplinary measure. In this sense, there is a discrepancy between the code of conduct and the real criteria of the discipline in Japan.
3 There are no ethical rules binding the prosecutor in Japan. Shibushi Case in which the prosecutor neglected the alibi evidence to get a conviction is a typical case showing lack of the understanding of the prosecutor's role as a jurist in the adversary system. We recommend that the ethical rules for the prosecutor be established immediately. Less
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