国民の「司法参加」についての一考察 : 裁判員制度の合憲性に関して

概要

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The aim of this paper is to consider the constitutionality of the lay assessor (saiban-in) system which will start in May 2009. The system is said to be not the jury system, because lay assessors and judges make judgment together about the fact finding, the application of law and the assessment of a case. This system is said to be similar to "das Schöffengericht" in Germany. According to the Constitution of Japan, the whole judicial power is vested in a Supreme Court and the inferior courts which consist of the judges (§76, §79, §80). But there is an idea that the inferior courts can consist of the judges and the lay assessors. This idea is unconstitutional because the lay assessors shall have parts of the judicial power. Although they are permitted to do the fact finding, they are not permitted to do the application of law and the assessment of a case, which are parts of the judicial power. It is concluded that the lay assessor system is contrary to the Constitution of Japan (§76 I , §32, §37 I ).
宮城教育大学の論文