THE ROLES AND ETHICS OF THE CRIMINAL DEFENSE COUNSEL

通过这项研究的新发现如下：1法官和检察官认为辩护律师是一种司法机关，辩护律师认为自己是委托人的代表。这种对角色理解的差异将导致律师解决伦理困境的途径不同。目前，国内外有一种强烈的倾向，强调律师的公共机关性质，而不是律师的代表人性质。但是，鉴于日本以供述为中心的调查，我们应该在律师的这两个性质之间取得平衡，主要是基于在决定伦理方法时有利于代表性质的立场。然而，在现实中，辩护律师在特定情况下扮演着多面性的角色。我们应该注意到，律师在特定情况下根据不同的角色有几种解决困境的方法。2 Behin…从更多针对被判滥用会见被告权利的律师的惩戒案件中，我们可以确定日本辩护律师必须扮演家庭角色的具体原因，行使公民与被告沟通的权利，而不是司法命令禁止与家人沟通的权利。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。在真正的纪律程序中，委员会通常会考虑总体情况，对专业裁量权进行测试，以得出结论，即几乎没有导致任何纪律措施的“不当行为”。从这个意义上说，日本的行为准则与真正的纪律标准之间存在差异。3日本没有约束检察官的道德规则。检方忽视不在场证明证据以获得定罪的涉事案件是一个典型案例，表明对检察官在对抗制中作为法学家的角色缺乏理解。我们建议立即制定检察官的道德规则。

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