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2014 (A) 1197

2016.12.05
2014 (A) 1197
Keishu Vol.70, No. 8
Judgment concerning a case in which applications for registration of land ownership transfers and acts to have such transfers registered were determined not constituting a crime of creation of false records in the originals of electromagnetic authentic public documents
Case of creation of false records in the originals of electromagnetic authentic public documents and offer for use thereof
Judgment of the First Petty Bench, quashed and decided by the Supreme Court
Tokyo High Court, Judgment of June 19, 2014
Under the factual situation (refer to the judgment) where the defendant had agreed with a member of an organized crime group to have the said member acquire ownership of certain land lots, the defendant purchased the said land lots from sellers in the name of the company in which the defendant serves as a representative director, and then the defendant filed applications to register the transfer of the ownership of the said land lots in the name of the said company on the grounds of sales agreements executed for the land lots, and had such transfers of ownership registered, with the sellers believing that the company was the buyer when such sales agreements were executed, since no statement was made to disclose the fact that the defendant was executing the sales agreements on behalf of the said member of an organized crime group. Thus, the said registrations truly reflected the process of the change in the real right in the said land lots under substantive civil law, and accordingly, the applications related to them cannot be recognized as the “filing of false statements” constituting a crime of creation of false records in the original of an authentic public document, and such registrations cannot be recognized as the “creation of false records” constituting the same crime.
Article 157, paragraph (1) and Article 158, paragraph (1) of the Penal Code



Penal Code

(False Entries in the Original of Notarized Deeds)

Article 157 (1) A person, who makes a false statement before a public officer and thereby causes the official to make a false entry in the original of a notarized deed, such as the registry or family register book, relating to rights or duties or to create a false record on the electromagnetic record to be used as the original of a notarized deed relating to rights or duties, shall be punished by imprisonment with work for not more than 5 years or a fine of not more than 500,000 yen.

(Uttering of Counterfeit Official Documents)

Article 158 (1) A person, who utters a document or drawing prescribed for in the preceding four Articles or provides the electromagnetic record prescribed for in paragraph (1) of the preceding Article for use as the original of a notarized deed, shall be punished by the same penalty as a person who counterfeits or alters a document or drawing, makes a false document or drawing, or causes a false entry or record to be made.
The judgment of the prior instance is quashed.

Each appeal for the case is dismissed
The reasons for final appeal argued by SATO Shohachi, the defense counsel, merely claimed violation of the law, error in fact and inappropriateness of the sentence, and cannot be regarded as a reason for a final appeal under Article 405 of the Code of Criminal Procedure.

However, having examined the case by our own authority in light of the appeal counsels’ arguments, the decision of the prior instance should inevitably be quashed pursuant to Article 411, items (i) and (iii) of the Code of Criminal Procedure.

The reasons for our conclusion are as follows:



I. Outlines of the charged facts of this case

The outlines of Charged Fact 1 and Charged Fact 2 of this case are as follows: The defendant is a representative director of Company A; the defendant and C, a realtor, conspired in acts to make false registrations of ownership of real properties in order to hide fact B, namely that the head of a designated organized crime group Matsuba Kai Oka-ikka, would become the owner of the real properties; 1) although the real buyer of four land lots in Moriya City, Ibaraki Prefecture, which comprised a housing lot, vegetation field and others, was B, on February 14, 2012, a land sales agreement for each of the aforementioned land lots was concluded between D, the seller, and Company A, a nominal buyer; on the same date, the defendant filed false statements with the legal affairs bureau by filing an application for registering land ownership transfer that contained false statements in order to register the false transfer of ownership of the three lots out of the aforementioned land lots from D, the seller, to Company A on the grounds of the execution of land sales agreements for these land lots, as well as by filing, on the same date, a provisional registration application that contained false statements in order to provisionally register Company A as a party that had a right to ownership transfer of the remaining lot out of the aforementioned land lots on the grounds of a land sales reservation. Thus, the defendant had an unknowing registrar in the legal affairs bureau enter these false records into the electromagnetic disk for the real property register, which serves as an original of the electromagnetic authentic public documents; immediately keep these records in the legal affairs bureau and offer them for use as originals of the electromagnetic authentic public documents; and 2) although the real buyer of a wilderness area in Moriya City (hereinafter collectively referred to as the “Land Lots” combined with the four land lots referred to in Charged Fact 1 above, or a “Land Lot” for each of such land lots) was B, on July 19, 2012, a land sales agreement for the wilderness area was concluded between E, the seller (hereinafter collectively referred to as “Sellers” combined with seller D, or as “Seller” for each of these sellers) and Company A, a nominal buyer; and on the 20th day of the same month, the defendant filed false statements with the legal affairs bureau by filing an application for registering a land ownership transfer that contained false statements in order to register the false transfer of ownership of the wilderness area from E, the seller, to Company A, on the grounds of the execution of the land sales agreement. Thus, the defendant had an unknowing registrar in the legal affairs bureau enter these false records into the electromagnetic disk of the real property register, which serves as an original of electromagnetic authentic public documents; and immediately keep these records in the legal affairs bureau and offer them for use as originals of the electromagnetic authentic public documents.



The outlines of Charged Facts 3 and 4 under this case are as follows: regarding buildings constructed on the Land Lots (hereinafter referred to as the “Buildings”), the defendant committed the crime of creation of false records in the original of electromagnetic authentic public documents and the crime of offering such for use thereof by filing applications for registering the defendant as the owner of the Buildings in a heading registration and the ownership preservation registration, which constituted an act of filing false statements, and such registrations constituted the creation of false records.



II. Factual situation of the case and outline of the decisions of the first and the prior instances

1. According to the finding of facts and records in the judgments of the first and prior instances, the factual situation surrounding this case was as follows:



(1) B is a member of Matsubakai, an organized crime group, and around the summer of 2011, B requested C, a realtor, to find land in Ibaraki Prefecture on which he could build a hall to be used for Matsubakai meetings.

(2) Thinking that B himself could not enter into a transaction with a realtor due to the ordinance on the elimination of organized crime groups of Ibaraki Prefecture (hereinafter referred to as the “Ordinance”), B was looking for a person who could become a nominal owner of land and a building that B would acquire, and was introduced to the defendant by an acquaintance. When B requested the defendant to allow B to use the defendant’s name in the contemplated transactions, the defendant accepted the request. Then, the defendant, B and C consulted and agreed that the defendant or Company A, in which the defendant serves as a representative director, would conclude land sales agreements for the Land Lots as a nominal buyer, and that registration applications would be filed with the authority to register the Land Lots ownership in the name of the defendant or Company A.

(3) Negotiations and procedures necessary for acquiring the Land Lots were mainly conducted by C and persons instructed by C; when each land sales agreement (hereinafter referred to as “Sales Agreement” or “Sales Transaction”) was concluded with each Seller under this case, the defendant personally attended and executed the Sales Agreement and other related documents as a representative of Company A, and paid the sales price in full on the spot. Each Sales Agreement was executed in the name of Company A, with no reference to the fact that it was made on behalf of B; thus the Sellers believed that the counterparty of the transactions was Company A. The Sellers had no knowledge of B.

(4) As described in Charged Facts 1 and 2, transfers of ownership of the Land Lots from the Sellers to Company A were registered with legal affairs bureaus on the grounds of the Sales Transactions (hereinafter, these registrations are collectively referred to as “Registrations,” or as “Registration” for each of the registrations); as for the Buildings as described in Charged Facts 3 and 4, the heading registration and ownership preservation registration were made naming the defendant as the owner of the Buildings.

(5) B paid all costs totaling about 120 million yen for these transactions, including the acquisition cost of the Land Lots and the Buildings and cost of registration.



2. The judgment in the first instance found the defendant guilty under the factual situations described above, of the crime of creation of false records in the original of electromagnetic authentic public documents, as well as the crime of offer for use thereof for Charged Facts 3 and 4, but acquitted the defendant of Charged Facts 1 and 2, stating that since the ownership of the Land Lots was transferred from the Sellers to the defendant or Company A, the Registrations did not constitute the creation of false records.



3. On the other hand, the judgment in the prior instance found that the defendant was also guilty of the crime of creation of false records in the original of electromagnetic authentic public documents, as well as the crime of use thereof for Charged Facts 1 and 2, by presenting the following findings and legal judgments:

(1) Between the defendant and B, although B, who is a member of an organized crime group, was the actual person who would acquire ownership of the Land Lots, the defendant and B agreed that Company A would be disguised as a buyer of the Land Lots and that the existence of B would be hidden, with the intent of averting application of the Ordinance.

(2) The defendant personally attended and executed sales agreements for the Land Lots, but was not involved in any other acts related to the transactions, such as negotiations and procedures necessary to be completed before execution of these agreements, which were mainly conducted by C in line with the intent of B. Accordingly, the actual situation constituted name-lending by the defendant for the purpose of hiding B as the actual buyer.

(3) Thus, it should be deemed that the ownership of each Land Lot was directly transferred from each Seller to B, who borrowed the name of Company A under the agreement between the defendant and B for the name-lending, at the time when the Sales Agreement for each Land Lot was executed between the Seller and Company A as a buyer. Therefore, the application filed to register each Land Lot in the name of Company A constituted an act of filing a false statement, and each Registration constituted an act of creating a false record.



III. Holding of this Court

However, the judgment of the prior instance cannot be accepted for the following reasons:

1. Regarding the crime of creation of false records in the original of an electromagnetic authentic public document and the crime of offer for use thereof, it is construed that interest protected by law from these crimes is public trust to an electromagnetic record used as an original of an authentic public document; considering the purpose of the real properties registration system, which is to ensure the safe and smooth implementation of real property transactions by making changes in real rights in real properties known to the public, in determining guilt in the aforementioned crimes, whether or not the filing of an application for registration of a right in a real property constitutes an act of filing a false statement and whether such registration constitutes an act of creating a false record should be judged from the viewpoint of whether or not such a registration truly reflects the process of the change in the real right in such real property under substantive civil law, excluding exceptional cases allowed in the practical operation of the registration.

Thus, when determining whether or not the application for each Registration under this case constituted an act of filing a false statement and whether or not such Registration constituted an act of creating a false record, the crux of the argument falls on whether the ownership of each Land Lot was directly transferred from each Seller to B, or whether it was transferred first to Company A.



The judgment of the prior instance recognized that this case construes name-lending by the defendant disguised as a buyer, hiding the existence of B, and that considering the actual situation, it should be deemed that the ownership of each Land Lot was transferred directly to B, who borrowed the name of Company A.



However, according to the factual situation surrounding this case, all Sales Agreements were executed in the name of Company A, and the defendant personally put his signature on these Sales Agreements as a representative of Company A in front of the Sellers and paid for the Land Lots. No statement was made disclosing that the defendant was executing the Sales Agreements on behalf of B, and the Sellers believed that Company A was the buyer. Thus, it is appropriate to deem that the parties to these Sales Agreements were the Sellers and Company A, and that the ownership of the Land Lots was transferred from the Sellers to Company A.



The judgment of the prior instance emphasized the existence of an agreement between the defendant and B, but considering the understanding of the Sellers at the time of execution of the Sales Agreements, the findings described above are not affected by the existence of the said agreement.



Moreover, under the factual situation surrounding this case, it cannot be regarded that ownership of the Land Lots was directly transferred to B by virtue of any structure such as applying an exception to the principle of the disclosing of an act of an agent adopted by the Civil Code.



As stated above, each Registration under this case of the transfer of the ownership of each Land Lot to Company A on the grounds of each Sales Transaction, among others, truly reflected the process of a change in the real right in such real property under the substantive civil law, and, thus, the application for each of such Registrations cannot be regarded as an act of filing a false statement, and each of such Registrations cannot be recognized as an act of creating a false record.



2. Accordingly, the judgment of the prior instance, which quashed the judgment of the first instance and found the defendant guilty of Charged Facts 1 and 2, stating that application for each Registration under this case constituted an act of filing a false statement, and that each Registration under this case constituted an act of creating a false record based on the findings that the ownership of each Land Lot was directly transferred from each Seller to B, misunderstood the facts and was illegal due to the incorrect application and interpretation of the law. Because it is obvious that this illegality affected the judgment, it is recognized that not quashing the judgment of the prior instance would be significantly contrary to the interests of justice.



Therefore, this court quashes the judgment of the prior instance according to Article 411, items (i) and (iii) of the Code of Criminal Procedure. Regarding the heading registrations and ownership preservation registrations of the Buildings related to Charged Facts 3 and 4, they should be examined from the same viewpoint as described above; and according to the evidence items listed in the judgment of the first instance, the fact-findings in the first instance relating to the ownership of the Buildings were appropriate, and the reasons for appeal argued by the defense counsel had no basis. Thus, it is appropriate to find the defendant not guilty for Charged Facts 1 and 2 and to support the judgment of the first instance that found the defendant guilty for Charged Facts 3 and 4, including the sentence of one year imprisonment with labor and suspension of its execution for three years. As stated above, because neither of the appeals of the public prosecutor and the defendant has any basis, they should be dismissed according to the proviso of Article 413, Article 414 and Article 396 of the same Code. Accordingly, the judgment is unanimously rendered as described in the main text.

Public Prosecutor ANDO Miwako attended the trial
Justice OTANI Naoto

Justice SAKURAI Ryuko

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki
(This translation is provisional and subject to revision.)