公判前ディヴァージョン : 制度改革の試論と実証的課題

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概要

• 論文の詳細を見る

• The ideas of pretrial diversion and of resolution of disputes involving minor offenses through mediation have recently been introduced to Japan. No one, however, has yet examined their implications in the Japanese context with a proposal for reform of the criminal justice system. Focusing on adult crimes other than minor traffic of Eenses, this paper reviews the development and critiques of these ideas in the U. S., analyzes the extent to which they may be incorporated into the Japanese system, presents a tentative proposal for reform, and outlines an agenda for research to be conducted to judge the merit and feasibility of the reform proposal. Diversion programs, particularly those with intervention including mediation, supposedly benefit all the parties in the criminal justice system : they reduce the work loads of the criminak justice agencies, better protect the general public through more effective treatment of offenders, and provide the accused with services withont attaching the stigma of formal conviction. Given the incidence of crime in Japan, however, there would be no need for reform from the viewpoints of the former two groups. A reform proposal might be based mainly on the viewpoint of the accused. The police and the prosecutor are already disposing of a large percentage of criminal cases through their statutory discretion to terminate proceedings, usually without any requirements on the part of the accused. Therefore, this paper proposes a reform at the police-prosecution stage which would be an extention of the current practice of simple diversion, and proposes that the guidelines for the exercise of the discretion be made public. Diversion with intervention is proposed only at the stage where court supervision is available. Typically on the first appearance before the court, the defendant may, upon advice of the defense counsel, request the court to suspend the proceedings for a few months during which time he will receive services which he has requested outside the justice system under the supervision of the probation office. Upon the expiration of the specified period, the court will evaluate the defendant's performance, and, if the court finds it satisfactory, the prosecutor will withdraw the information. This paper suggests the types of cases for which the suspension of proceedings should be either mandatory or discretionary, suggesting that the suspension should be mandatory when the chosen services are clearly appropriate for the accused (as, for instance, in the case of psychiatric treatment for the mentally disturbed defendant). Related procedural and policy issues are discussed, and a series of research topics are described.

• 日本犯罪社会学会の論文

著者

• 宮澤 節生

  神戸大学

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• 公判前ディヴァージョン : 制度改革の試論と実証的課題

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