2007 Fiscal Year Final Research Report Summary
THE ROLES AND ETHICS OF THE CRIMINAL DEFENSE COUNSEL
| 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)
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| Project Period (FY) |
2004 – 2007
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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 |
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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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[Presentation] FINANCIAL GATEKEEPER OF JAPAN2007
Author(s)
KEIICHI MURAOKA
Organizer
THE INTERNATIONAL SEMINAR ON "THE FINANCIAL CRIMES IN THE CONTEXT OF GLOBALIZATION"
Place of Presentation
Renmin University of China, Beijing, China
Year and Date
20070825-20070826
Description
「研究成果報告書概要(欧文)」より
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[Book] 法曹の倫理2005
Author(s)
水谷規男
Total Pages
190-215
Publisher
名古屋大学出版会
Description
「研究成果報告書概要(和文)」より
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