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少年法改正問題を考える


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Title: 少年法改正問題を考える
Other Titles: Thinking on the Amendment of the Juvenile Law
Authors: 井田, 洋子
Authors (alternative): Ida, Yoko
Issue Date: 23-Jun-2000
Publisher: 長崎大学経済学会
Citation: 経営と経済, 80(1), pp.99-127; 2000
Abstract: The juvenile law is the law which regards juvenile offender as just "delinquency" not "criminal" and make him or her not to punish but to rehabilitate. The juvenile law is theoretically engaged in determining the need of child and of society rather than adjudicating criminal conduct. It is so called parens patriae which means state deal with juvenile as thier own parents not procecuting attorny and judge. That is why the theory of juvenile law is based on social welfare philosophy rather than on the corpus juris, as though there are similarity between the criminal law and the juvenile law. This system is rooted in the spirit of modern age. The core spirit is that the child who is different from the adult and who is innocent, needs protection and special care, so the child should be treated different way from the adult even if he or she connects with criminal matter. Prior to modern age, the child has been regarded as inferior or subordinate to adult, therfore the child was the person not worthed care about. As a result, the child has been treated as same as adult, he or she has judged by criminal law and applied even the death penalty. Nowadays, this system is so popular all over the world. Moreover, United Nations adopted in 1989 "Convention on the Rights of the Child", in which the child needs special care and must be treated different way from the adult when he or she deprives of his or her liverty. But, more remarkable thing is the Convention prescribes the child has human rights as same as the adult, which means he or she must regard as an independent person. In Japan, the current juvenile law made as a amendement of old law after the World War Ⅱ on the model of that of U. S. A.. The law is for minor(under 20). The purpose is to rehabilitate or resocialize a delinquent child on the responsibility of government. Family court has a power to judge exclusively, except for 4 serious crime of over 16 ages, about two aspects - fact of delin-quency and need of rehavilitation. Japanese juvenile law system has been critisized from two viewpoints. The one is that it lacks of due process scuh as the right to have attorney, not to expose to duble jeoaredy, the right of appeal. Due process of law is the key consept of human rights especially in criminal procedure as a threat to personal liberty. But, juvenile law system has negrected due process for a long time for the very simple reason that it is not a criminal system. Nowadays it is popular idea that juvenile law system should provide due process to protect of the child's right. All the same, in Japan, due process has not yet garanteed for juvenile. The other opinion against this system is that it is not suitable for the contemporary situation (imcreasing crimes of younger jenaration) , therfore it should change the law to face more siverely for juvenile, in other words, juvenile law system should be close to the criminal system. The new draft amendment of juvenlil law from the government side in 1998 was made from this point of view as before. The main point of proposal is to make public prosecutor take part in a judgement of family court. This could be against the core spilit of current juvenile law. That is why the strong dispute over this amendment arose. Rethinking of the juvenile law system is not bad at all. But it is important not to jamp up a easy solution the law should be changed to something like a criminal law to punish juvenile more severely because of imcreasing crimes by juveniles. After all, to solve this problem, we need careful consideration on somepoints; what is a child? what is the difference between a child and a adult?, what is the criminal punishment for? It short, we need to consider the juvenile law from many aspects slowly and carefuly.
URI: http://hdl.handle.net/10069/29165
ISSN: 02869101
Type: Departmental Bulletin Paper
Text Version: publisher
Appears in Collections:Volume 80 No. 1

Citable URI : http://hdl.handle.net/10069/29165

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