文献一覧: 小森田秋夫 (著者)

8 0 0 0 OA ポーランドにおける「法の支配」の危機と欧州連合

著者: 小森田秋夫
出版者: 日本EU学会
雑誌: 日本EU学会年報 (ISSN:18843123)
巻号頁・発行日: vol.2019, no.39, pp.44-75, 2019-06-20 (Released:2021-06-20)

In Poland, as a result of the victory of Law and Justice (PiS) party in the parliamentary election in October 2015, a single-party-government was established for the first time since 1989. PiS, enacting one after another statutes of questionable constitutionality, has transformed the Constitutional Tribunal, by replacing its judges, into an organ which is not to control the legislative and the executive from the view point of constitutionality of their acts, but only to legitimate them. Next, PiS moved to the judicial reforms in order to put the whole system of judiciary under the control of the political branches (the legislative and the executive). Such a motion of the ruling party, which undermines the principles of judicial independence and division of power as the bases of democratic state ruled by law, has brought about protests and oppositions of lawyers and citizens within the country. At the same time, this situation in a member state of the European Union puts a serious problem under its nose. Facing an almost unprecedented situation, the European Commission launched the procedure based on the article 7 of the Treaty of the European Union, aiming at resolution of the problem by the “dialog” with the Polish government. But the conflict between the Polish government and the Commission was not settled by the beginning of July 2018, a crucial moment when a group of judges of the Supreme Court (SC) were to be obliged to retire due to the new Act on the SC, lowering of the retirement age for SC judges. So the Commission at last decided to use the infringement procedure on the bases of the article 258 of the Treaty on the Functioning of the EU to protect the independence of the Polish SC. Some courts of the other member states began to seek preliminary ruling of the Court of Justice of EU (ECJ) in the context of execution of European arrest warrant issued by the Polish courts. Polish judges, including ones of the SC, also put preliminary questions as to compatibility of some provisions of the Act on the SC with the EU law. In such a situation, in which motions within Poland and those at the EU level, involving the other member states, are complicatedly intertwined, on 19 October the ECJ decided that Poland must immediately suspend the application of the Act on the SC relating to the lowering of the retirement age for SC judges. Now Poland is waiting for the final judgement of the ECJ.

2023-01-21 05:00:43
5 + 2 Twitter
3 + 2 Wikipedia

2 0 0 0 OA 比較の中のロシア陪審制―制度化の初期段階における評価の揺れと試行錯誤

著者: 小森田秋夫高橋一彦
出版者: 神奈川大学
雑誌: 基盤研究(C)
巻号頁・発行日: 2011

1993年に一部の連邦構成主体で導入され、2010年に全国化したロシアの陪審制は、いま困難な状況のもとにある。第1に、テロ、スパイなど一定の国家犯罪の適用除外、控訴審制度導入と関連した一連の事件の州級裁から地区裁への移管にともなう適用犯罪の縮小という制度的変更と、訴追側や一部の弁護士の陪審制適用の回避志向などの結果、事件数は大幅に縮小している。第2に、連邦最高裁の方針にもとづき、陪審員の判断対象を縮小する裁判実務が行なわれている。陪審制にとってのこの逆風は、少なくとも部分的には、それが「訴追側への偏り」というロシアの刑事訴訟の病弊を克服する可能性を示すという成果のゆえ、と見ることができる。