THE ROLES AND ETHICS OF THE CRIMINAL DEFENSE COUNSEL

本研究的新发现如下：1.当法官和检察官将辩护律师视为一种司法机关时，辩护律师将自己视为委托人的代表。这种角色理解的差异将导致律师解决伦理困境的方法不同。当前，国内外律师界存在着一种强调律师的公共机关性质而忽视律师的代表性的倾向。但是，鉴于日本的口供中心调查，我们应该在辩护律师的这两种性质之间取得平衡，主要是基于赞成代表性质的立场来决定伦理方法。然而，在现实中，辩护律师在特定情况下扮演着多重角色。我们应该注意到，在特定的情形下，律师根据其角色的不同，可以有多种方式来解决这一困境。 关于我们 从律师滥用与被告面谈权而受到惩戒的案例中，我们可以发现一个具体的原因，即日本的辩护律师必须发挥其家人的作用，行使公民与被告沟通的权利，而不是司法命令禁止这样做的家人。因此，最后的纪律措施将取决于纪律委员会对律师的作用采取何种立场。在真实的纪律处分程序中，委员会通常会考虑整体情况，对专业酌情权进行测试，以便得出结论，认为实际上不存在导致采取任何纪律处分措施的“不当行为”。在这个意义上，行为守则与日本的真实的纪律标准之间存在差异。涉事案中检察官忽视不在犯罪现场证据定罪，是对当事人主义诉讼中检察官角色认识不足的典型案例。我们建议立即制定检察官的道德准则。少

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