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刑事手続の新展開 上
編集委員 三井 誠/渡邉一弘/岡 慎一/植村立郎
刑事手続の新展開 上
発 行2017年9月15日
税込定価7,020円(本体6,500円)
判 型A5判
ページ数606頁
ISBN978-4-7923-5214-1
在庫があります 
在庫があります
■内容紹介
第1編総  論
1 刑事手続の新展開
検察の立場から  渡邉 一弘
はじめに ·······································································································································3
三つの展開 ·····································································································································4
1 司法制度改革の展開 (4)  2 犯罪被害者保護制度の拡充 (6)
3 検察改革・新たな刑事司法の在り方等 (7)  4 小  括 (10)
新しい捜査・公判の在り方と取調べの録音・録画について ·······12
1 直接主義・口頭主義について (12)
2 取調べの録音・録画について (14)
弁護の立場から  岡  慎 一
はじめに ······································································································································18
平成16年改革以前の刑事手続 ·················································································19
1 わが国の刑事手続の特色 (19) 2 「取調べ中心主義」 (20)
取調べ中心主義と平成16年改革
取調べ中心主義の変革 ·····································································································22
1 問題の所在 (22)  2 「取調べ中心主義」の実態(23)   
3 「取調べ中心主義」と問題点 (24) 
4 「取調べ中心主義」からの転換の必要性 (26)
改革の方向性(1)−供述の自由の実効的保障− ···························27
1 供述の自由の実効的保障の必要性 (27)
2 被疑者取調べの録音・録画制度 (27)
3 被疑者取調べへの弁護人立会 (27)

改革の方向性(2)−公判中心主義の実現− ·······································28
1 公判中心主義実現の課題 (28)  2 証拠開示の拡充 (28)
3 参考人取調べの録音・録画等 (29)
裁判の立場から  植村 立郎
はじめに ······································································································································32
再度の法律の時代 ··················································································································33
1 法律の時代の再来 (33)  2 立法の多様性 (33)
3 定着化・運用の時代 (34)
プロセスの変化··························································································································36
1 はじめに (36)  2 裁判関与者の変化 (36)
3 関与者の変化に伴う手続の変化 (37)
おわりに ·············································································································································50
2 裁判員裁判
検察の立場から  西山 卓爾
はじめに ······································································································································51
検察における取組 ···················································································································52
1 裁判員裁判における検察の基本姿勢 (52) 
2 捜査における取組 (53)
3 公判における取組 (54)  4 被害者等に配慮した取組 (58)
今後の課題 ····································································································································60
1 長期化の傾向 (60) 
2 裁判員にとって分かりやすい公判活動の実践 (61)
おわりに ·······································································································································64
弁護の立場から  四 宮  啓
はじめに ······································································································································66
制度が変えられたもの(制度上の手続変革) ···············································67
1 被疑者国選弁護制度 (67)  2 公判前整理手続と証拠開示 (68)
3 連日的開廷 (69)
運用が変わったもの(運用上の手続変革) ·····················································70
1 取 調 べ (70)  2 保   釈 (71)  3 証拠調べ (71)
4 量   刑 (73)  5 上   訴 (73)  
6 裁判官のマインドセットの変化(74)
裁判員法により新しく導入された規定が「変わらなかったもの」 ········75
1 裁判員4:裁判官1の裁判体 (75)  2 無 罪 率 (76)
3 いわゆる手続二分 (77)  4 死刑判決 (79)
おわりに−裁判員裁判の今後− ···································································82
裁判の立場から  大野 勝則
はじめに ······································································································································86
公判準備の長期化 ·················································································································87
公判審理 ····································································································································90
1 審理の実情 (90)  2 人証の活用 (92)
3 当事者の活動 (93)  4 公判審理の長期化 (95)
評議と判決 ·····································································································································96
裁判員の精神的負担 ···········································································································97
他の裁判への影響 ·················································································································98
おわりに ·······································································································································99
3 犯罪被害者と刑事手続
検察の立場から  大谷 晃大
はじめに ··································································································································· 101
刑事手続における犯罪被害者の保護に関連する法整備の経緯 ····· 103
1 平成12年以前の状況 (103)  2 平成12年の法整備 (103)
3 平成18年の法整備 (104)  4 平成19年の法整備 (105)
5 平成20年の法整備 (107)  6 平成25年の法整備 (107)
被害者参加制度について····························································································· 108
1 被害者参加制度導入の経緯 (108)
2 被害者参加制度の位置付け (108)
3 被害者参加制度の概要と運用の現状 (110)
4 被害者参加制度の課題 (113)
弁護の立場から  奥 村  回
犯罪被害者の保護 ·············································································································· 116
1 弁護人として (116)  2 被害者参加制度の導入等 (117)
3 日本弁護士連合会 (119)  4 被害者参加制度等の概要 (119)
5 刑事手続と被害者 (120)
被害者参加の運用状況 ·································································································· 121
1 被害者参加の運用状況1 (121)
2 被害者参加の運用状況2 (126)
被害者参加事件への弁護人の対応 ··································································· 131
1 被害者参加を意識した弁護活動 (131)  2 対  応 (131)
裁判の立場から  島 戸  純
はじめに ··································································································································· 133
1 被害者に対する配慮,被害者の権利・利益の確保の必要性 (133)
2 裁判手続に関わる近時の法整備 (134)
公判手続上の諸問題 ········································································································ 135
1 被害者の立場に配慮した公判手続の運営 (135)
2 被害者に関する情報の保護 (138)
3 被害者の意見の表出 (143)  4 被害者参加 (145)
損害回復等をめぐる諸問題 ························································································ 150
1 損害の回復のための手段 (150)
2 被害者に対する情報提供 (152)
裁判員裁判をめぐる諸問題 ························································································ 153
1 裁判員等選任手続 (153)  2 証人尋問 (154)
3 公判運営・評議上の留意点 (154)
量刑上の諸問題 ····················································································································· 154
1 被害弁償,被害回復と量刑 (154)  2 被害感情と量刑 (156)
3 いわゆる「被害者の落ち度」と量刑 (158)
おわりに ···································································································································· 159
4 少年の刑事事件
裁判の立場から  加 藤  学
はじめに ··································································································································· 161
起訴後第1回公判まで ······································································································ 161
1 迅速な公判準備 (161)  2 社会記録の取寄せ (162)
公判手続の留意点 ·············································································································· 164
1 公判非公開の可否 (164)  2 少年の人定事項の秘匿化 (164)
保護処分相当性の審理 ·································································································· 167
1 保護処分相当性 (167)  2 保護処分相当性の立証方法 (170)
検察の立場から―コメント1 甲斐 行夫
少年の刑事事件の現状 ·································································································· 173
少年の刑事事件に対する検察官の基本的対応 ····································· 174
公判準備 ································································································································174
1 公判準備 (174)  2 社会記録の取寄せ (175)
公判手続 ································································································································· 176
1 公判の非公開 (176)  2 少年の人定事項の秘匿 (176)
処分の在り方 ····························································································································· 177
1 少年法20条2項の趣旨 (177)  2 少年法55条の適用 (178)
3 量刑・保護処分相当性の審理方法 (179)
4 少年に対する刑の緩和 (182)
弁護の立場から−コメント2 村中 貴之
少年の刑事事件弁護の基本的視点 ··································································· 183
少年の刑事裁判における弁護活動の留意点 ············································ 184
1 少年のプライバシー・情操保護について (184)
2 社会記録の取寄せについて (185)
3 保護処分相当性・情状立証の方法について (186)
4 少年の処遇についての立証について (188)
5 少年独自の量刑論の構築の必要性 (189)
5 医療観察事件
検察の立場から  加藤 俊治
概  況 ······································································································································· 191
政府検討結果における指摘事項 ··········································································· 195
1 審判の申立てに関して (195)  
2 鑑定入院及び鑑定に関して (197)
3 裁判所による処遇の選択について (198)
裁判例に現れた問題点 ······························································································· 199
1  幻覚妄想状態の中で幻覚・妄想等に基づいて行った行為と対象行為の
認定 (199)
2 医療を行わない決定に対する対象者側からの抗告の許否 (200)
不起訴処分の理由と審判申立て ··········································································· 201
おわりに ···································································································································· 203
裁判の立場から  村山 浩昭
はじめに ··································································································································· 204
いわゆる5年後見直しについて ··············································································· 205
1 見直しに関するいくつかの意見 (205)  2 本稿の視点 (206)
医療観察審判の実情 ········································································································ 207
1 申立て (207)  2 鑑定入院質問 (211)
3 審判の準備 (211)  4 審  判 (214) 
5 入通院以外の処遇事件 (215)
実務上のいくつかの問題点について ··························································· 216
1 医療観察法上の医療を行うための要件 (216)
2 入院が長期化する対象者の問題 (219)
今後の課題 ································································································································· 220
弁護の立場から−コメント 田岡 直博
はじめに ··································································································································· 224
申立ての問題点 ····················································································································· 224
鑑定入院命令の問題点 ·································································································· 227
審判の問題点 ··························································································································· 228
第2編捜査・弁護
6 強制捜査と任意捜査
検察の立場から  石山 宏樹
はじめに ··································································································································· 233
強制処分の意義(強制捜査と任意捜査の区別の基準) ················· 234
1 従前の学説等 (234)  
2 最決昭和51年3月16日(刑集30巻2号187頁) (234)
3 最決昭和59年2月29日(刑集38巻3号479頁) (239)
4  最決平成20年4月15日(刑集62巻5号1398頁)及び最決平成21年
9月28日(刑集63巻7号868頁) (240)
任意捜査の限界 ····················································································································· 243
1 昭和51年決定の枠組み (243)
2 「純粋任意段階と強制移行段階」という考え方 (244)
弁護の立場から−コメント1 岡  慎 一
強制処分の意義(強制捜査と任意捜査の区別の基準) ················· 248
1 最高裁昭和51年3月16日決定の理解 (248)  
2 検  討 (249)
任意捜査の限界 ····················································································································· 250
1 任意捜査の適法性審査基準 (250)
2 「純粋任意段階と強制移行段階」という考え方 (251)
裁判の立場から−コメント2 三 浦  透
強制捜査と任意捜査の区別 ······················································································· 252
供,い錣罎詢韻畸屬の問題について······································································ 255
7 職務質問・所持品検査
検察の立場から 自見 武士
はじめに ··································································································································· 259
職務質問 ································································································································· 259
1 問題の所在 (259)  2 有形力行使の限界 (260)
3 自動車検問 (261)
所持品検査 ································································································································· 263
1 問題の所在 (263)  2 判例の立場 (263)  3 予試験 (265)
職務質問に引き続く留め置き ····················································································· 266
1 問題の所在 (266)  2 2つの東京高裁判決とその検討 (267)
おわりに ···································································································································· 271
弁護の立場から−コメント1 坂根 真也
弁護人の視点から ················································································································ 272
職務質問について ··············································································································· 274
所持品検査について ········································································································· 275
裁判の立場から−コメント2 友重 雅裕
はじめに ··································································································································· 277
職務質問・所持品検査 ··································································································· 278
自動車検問 ································································································································· 278
職務質問に引き続く留め置き ····················································································· 279
8 被疑者及び参考人の取調べ
検察の立場から  稲川 龍也
はじめに ··································································································································· 283
取調べをめぐる環境の変化 ························································································ 284
1 裁判員裁判の導入と裁判所の変化 (284)
2 取調べの録音・録画の試行 (284)
3 客観的証拠の増加 (286) 
4 被疑者国選弁護人制度の拡充と弁護活動の活発化 (287)
5 まとめ (288)
警察,検察で実施している取調べの適正化対策 ·························· 289
1 取調べ状況の記録化と証拠開示 (290)
2 警察におけるその他の取組 (290)  3 検察における取組 (291)
取調べをめぐる今後の課題と展望 ······································································ 292
1 被疑者取調べの目的・機能と取調べ受忍義務 (292)
2 取調べの可視化の方向性 (299)
3 参考人の取調べの課題 (301) 
弁護の立場から  後藤 貞人
取調べの本質 ··························································································································· 303
取調べの実態 ··························································································································· 310
1 取調室の中 (310)  2 取調官対被疑者 (310)
3 黙秘権行使の困難 (312) 
4 取調べの産物−供述録取書− (314)
5 可能な限り暗闇に (317)  6 法廷と取調室の落差 (319)
取調べの可視化 ···················································································································· 320
1 可視化がもたらすもの (320)  
2 取調べ可視化の現在と法制化 (329)
参考人取調べ ·························································································································· 333
1 参考人取調べを検討する観点 (333)
2 参考人自身の観点 (334)
3 当該刑事事件の被疑者・被告人の立場からの問題 (335)
4 参考人取調べの可視化 (336)
まとめにかえて ························································································································ 337
裁判の立場から−コメント 半田 靖史
取調べの録音・録画制度 ···························································································· 341
取調べ受忍義務 ···················································································································· 344
参考人の取調べ ···················································································································· 346
おわりに ···································································································································· 347
9 被疑者の身体拘束
検察の立場から  内藤 惣一郎
はじめに ··································································································································· 349
刑事収容施設法の制定と同法に基づく被疑者の処遇 ····················· 350
1 刑事収容施設法の制定 (350)
2 刑事収容施設法の概要−特に未決拘禁者について− (351)
3 刑事収容施設法の施行状況とその5年後見直しの概要
  −特に未決拘禁者について− (359)
近年における逮捕・勾留の動向 ············································································ 360
被疑者の逮捕と勾留に関わる諸問題 ································································ 361
1 勾留場所について (361)  2 別件逮捕・勾留について (362)
3 任意同行・逮捕について (363)
弁護の立場から  金岡 繁裕
はじめに ··································································································································· 367
本稿の構成 ································································································································· 368
在宅のまま手続を進める原則について ···························································· 368
1 在宅のまま手続を進める原則 (368)
2 令状審査にあるべき姿勢−勾留請求却下の実例から− (369)
3 取調べ目的の身体拘束について (372)  4 小  括 (373)
身体拘束からの解放·········································································································· 374
1 2号,3号「相当な理由」の実質化 (374)
2 勾留の必要性要件の実質化 (376)  3 反論機会の保障 (376)
4 勾留延長の抑制に向けて (378)  5 小  括 (380)
その他の諸問題⑴−余罪と令状主義の潜脱− ······························ 381
1 問題の所在 (381)  2 制度的な監視 (381)
その他の諸問題⑵−勾留中の処遇の改善− ··································· 382
1 一般論として,防御権侵害や日常生活への過干渉があること (382)
2 接見等禁止の場合 (383)  3 小  括 (383)
その他の諸問題⑶−代用監獄問題− ······················································ 384
裁判の立場から−コメント 栗原 正史
はじめに ··································································································································· 385
内藤論文について ··············································································································· 385
金岡論文について ··············································································································· 387
1 金岡論文の概観 (387)  2 令状審査について (387)
3 勾留延長について (389)  4 接見禁止について (391)
10 捜索・差押え
検察の立場から  横 井  朗
はじめに ··································································································································· 393
令状発付の基準 ····················································································································· 394
捜索場所に存在する「物」に対する捜索 ····················································· 395
捜索場所に居合わせた人に対する捜索の可否 ······································ 397
1 捜索場所に居合わせた人の所持品・携帯品 (397)
2 捜索場所に居合わせた人の身体・着衣 (399)
捜索開始後に捜索場所に搬入された荷物に対する捜索の可否 ······ 402
1 証拠物の存在する蓋然性の判断時期 (402)
2 荷受人の受領の要否−管理権の帰属− (403)
弁護の立場から−コメント1 神  洋 明
はじめに ··································································································································· 407
捜索場所に居合わせた人に対する捜索 ························································ 407
捜索開始後捜索場所に搬入された荷物に対する捜索の可否 · 408
1 証拠物の存在する蓋然性の判断時期 (408)
2 荷受人の受領の要否−管理権の帰属− (409)
ら−コメント2 柴田 寿宏
はじめに ··································································································································· 411
令状発付の基準 ····················································································································· 411
捜索場所に存在する「物」に対する捜索 ····················································· 412
捜索場所に居合わせた人に対する捜索の可否 ······································ 412
1 捜索場所に居合わせた人の所持品・携帯品 (412)
2 捜索場所に居合わせた人の身体・着衣 (413)
捜索開始後に捜索場所に搬入された荷物に対する捜索の可否 ······ 414
1 証拠物の存在する蓋然性の判断時期 (414)
2 荷受人の受領の要否−管理権の帰属− (414)
11 デジタル情報と捜査
検察の立場から  北 村  篤
はじめに ··································································································································· 415
記録媒体の差押えと,記録命令付差押え及び刑訴法110条の
2の差押えの執行方法 ····································································································· 416
リモートアクセス ····················································································································· 423
情報の同一性の確保 ········································································································ 425
パスワードなどの把握 ······································································································· 426
電子メールの捜査 ················································································································ 427
通信履歴の捜査(保全要請) ···················································································· 427
おわりに ···································································································································· 428
弁護の立場から−コメント1 山下 幸夫
サイバー犯罪の国内法化 ······························································································ 429
差押えの対象とデジタル情報 ···················································································· 430
デジタル情報の差押え ····································································································· 431
リモート・アクセスによる差押え ·············································································· 433
電子メールの捜査 ················································································································ 434
通信履歴の保全要請 ········································································································ 435
裁判の立場から−コメント2 島 戸  純
はじめに ··································································································································· 437
令状の発付に当たって ···································································································· 438
1 差押え (438)  2 検  証 (440)
令状の執行に当たって ···································································································· 441
1 執  行 (441)  2 執行に対する不服の措置 (442)
12 科学的捜査
検察の立場から  大原 義宏
総  論 ······································································································································· 443
DNA 型鑑定 ····························································································································· 445
1 DNA 型鑑定の実情 (445)  2 DNA 型鑑定の有用性等 (446)
3 DNA 型データベース (448)  
4 DNA 型鑑定に対する批判等 (449)
写真・ビデオ撮影 ················································································································· 451
1 写真・ビデオ撮影の重要性 (451)
2 犯罪捜査のための写真・ビデオ撮影の許容性 (451)
3 防犯カメラによる撮影の許容性 (454)
弁護の立場から−コメント1 野嶋 真人
はじめに ··································································································································· 458
指紋鑑定、足跡鑑定、筆跡鑑定、毛髪鑑定など···································· 458
DNA 型鑑定について ····································································································· 459
1 DNA型検査の現状 (459)  
2 150RFU 未満のピークの有用性 (459)
3 DNA 型鑑定後に電子データを消去している問題 (461)
4 DNA 型鑑定の電子データの有用性 (462)
5 コンタミネーションの危険性 (462)
犯罪予防目的での防犯カメラによる録画について ································ 463
−コメント2 江口 和伸
はじめに ··································································································································· 464
科学的証拠の内容 ·············································································································· 465
裁判手続において科学的証拠を用いる場合の留意点 ···················· 466
おわりに ···································································································································· 467
13 新たな捜査手法
検察の立場から  白井 智之
総  論 ······································································································································· 469
1 新たな捜査手法を論じる意義 (469)
2 事案の真相解明から見た新たな捜査手法の必要性 (470)
3 検討対象となる捜査手法 (472)
供述以外に主眼を置いた捜査手法 ···································································· 472
1 通信傍受及び会話傍受 (472)  2 身分等秘匿捜査 (474)
3 DNA型データベース (475)
供述に関わる捜査手法等 ····························································································· 477
1 刑事免責 (477)  2 司法取引 (478)
3  黙秘した事実からの推認,被疑者・被告人による虚偽供述の犯罪化 (480)
結  語 ······································································································································· 481
弁護の立場から−コメント1 河津 博史
「事案の真相解明」のために何が必要か ·················································· 482
「供述以外に主眼を置いた捜査手法」について ································· 484
「供述に関わる捜査手法等」について ·························································· 484
1 取調べ及び供述調書への依存を見直すことの意味 (484)
2 捜査・公判協力型協議・合意制度及び刑事免責制度 (485)
3 黙秘した事実からの推認 (488)
裁判の立場から−コメント2 村越 一浩
客観的,物的証拠の質的変化 ·················································································· 489
捜査の在り方をめぐる近時の議論········································································ 491
新たな捜査手法の導入について ··········································································· 492
今後の検討課題 ····················································································································· 495
14 捜査段階における弁護活動
弁護の立場から  前田 裕司
はじめに ··································································································································· 497
被疑者弁護人の活動内容 ···························································································· 497
被疑者国選弁護導入の成果と逮捕直後の弁護人の必要性 ······ 498
被疑者の取調べの現状と取調べの可視化 ················································· 500
1 被疑者取調べの実情 (500)
2 取調べの適正確保のための弁護人の活動 (501)
3 取調べの可視化(取調べ全過程の録画)の必要性 (501)
4 取調べに先立つ弁護人との接見の必要性 (503)
5 身体拘束からの解放 (503)
証拠収集活動としての接見室での写真撮影と録画は必要 ········· 510
検察の立場から−コメント1 佐 藤  剛
はじめに ··································································································································· 511
「被疑者ノート」について ···························································································· 512
被害者を始めとする関係者の名誉・プライバシー保護の観点 ···· 513
法制審議会における調査審議と新制度の導入について ··············· 514
裁判の立場から−コメント2 中谷 雄二郎
裁判員制度の導入は捜査段階の弁護活動に何をもたらしたか ····· 517
捜査段階における弁護活動の重要性 ······························································ 518
捜査段階における弁護活動の現状と課題 ··················································· 520
1 弁護活動のばらつき (520)
2 公判前整理手続の迅速化の要請 (521)
3 前田論文の提唱について (522)
15 接見交通
弁護の立場から  赤松 範夫
問題の所在 ································································································································· 523
接見交通権についての基本的考え方 ······························································ 525
1 接見交通権とは (525)  2 接見の意義・定義 (526)
3 憲法に由来する秘密交通権の重要性 (527)
秘密交通権の保障について ······················································································ 528
1 接見内容の取調べ,供述調書化等 (528)
2 接見室内でのカメラ,録音機,電子機器等の持込み,使用等 (529)
弁護人との信書の発受等 ····························································································· 531
1 信書の発受における秘密性保護 (531)
2 秘密性の保障の根拠 (532)
3 接見禁止決定下の信書等の授受 (533)
面会接見 ······································································································································· 533
1 検察庁における接見 (533)  2 面会接見について (534)
3 面会接見の際の立会人 (535)
電話連絡(電話による外部交通) ·········································································· 535
1 制度の概要 (535)  2 この制度の問題点 (536)
検察の立場から  内藤 晋太郎
問題の所在 ································································································································· 537
接見交通権についての基本的な考え方························································· 538
1 接見交通権と刑罰権・捜査権との関係等 (538)
2 刑訴法と刑事収容法との関係 (539)
3 39条1項の「接見」の意義と範囲 (540)
面会接見 ································································································································· 542
1 面会接見の意義 (542)  
2 面会接見のための配慮義務の要件等 (542)
3 面会接見の実施上の留意事項 (544)  4 検察庁の対応 (546)
電話面会 ································································································································· 547
1 電話面会と接見交通権との関係 (547)
2 電話面会の運用上の取組み (547)
信書の発受 ································································································································· 548
1 信書の発受と秘密の保障 (548)  2 監獄法下における判例 (548)
3 刑事収容法下の信書の検査の在り方 (549)
裁判の立場から−コメント 中島 経太
問題点の現状 ··························································································································· 551
接見交通権についての基本的な考え方························································· 552
面会接見,電話による外部交通等について ················································ 553
1 面会接見 (553)  
2 未決拘禁者と弁護人等の電話による通信 (553)
接見時の写真撮影,録画等について ································································ 554
接見内容の取調べ,供述調書化について ···················································· 555
信書等の発受 ··························································································································· 556
事項索引………………………………………………………………………… 558
判例索引………………………………………………………………………… 563
あとがき………………………………………………………………………… 567





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