2017.12.11

2017 (A) 1079

Keishu Vol. 71, No. 10

Decision regarding a case where a person engaged in an act of receiving a package sent from the victim in a conspiracy without being aware that a pretending-to-be-deceived operation had commenced after a deceitful act was conducted by an accomplice was held to bear responsibility as a coprincipal in an attempted fraud

Case charged for attempted fraud

Decision of the Third Petty Bench, dismissed

Fukuoka High Court, Judgment of May 31, 2017

According to the facts in this case (See the content of the judgement.), in which the defendant was engaged in an act of receiving a package sent from the victim, which was contemplated to be integrated with a deceitful act in order to accomplish fraud, in conspiracy with accomplices without being aware that a pretending-to-be-deceived operation had commenced, after a deceitful act was conducted by an accomplice, the defendant bears responsibility of a coprincipal in attempted fraud including the deceitful act conducted before the defendant’s engagement regardless of the commencement of the pretending-to-be-deceived operation.

Article 60, Article 250, and Article 246, paragraph (1) of the Penal Code



Penal Code

(Co-Principals)

Article 60 Two or more persons who commit a crime in joint action are all principals.

(Fraud)

Article 246 (1) A person who defrauds another of property shall be punished by imprisonment with work for not more than 10 years.

(Attempts)

Article 250 An attempt of the crimes prescribed under this Chapter shall be punished.

The final appeal is dismissed.

Among reasons for the final appeal stated by the defense counsel, KANEGAE Keiji, the one alleging violation of a judicial precedent is irrelevant in this case because the cited judicial precedent addressed different types of facts, and the other ones are allegations of errors in fact finding and mere legal violations, and therefore, they do not constitute any of the reasons for final appeal listed in Article 405 of the Code of Criminal Procedure.

Considering the arguments of the defense counsel, however, the Court determines by its authority whether or not the defendant is a coprincipal in attempted fraud when a so-called pretending-to-be-deceived operation (a method of investigation in which a victim who notices or is afraid that he/she has been deceived pretends to act in compliance with demands from criminals and attempts to have the criminals arrested at the time of the receiving act, etc., in cooperation with the investigating authority) is implemented in a special fraud case.

1. Charged facts in and the process of this case

(1) Charged facts in this case

The outline of the charged facts in this case is as follows:

The defendant, in conspiracy with an unknown person and others, intended to defraud A of cash, taking advantage of the status of A, who wrongly believed that A was selected for a special drawing, in which A would certainly win a lottery from a number-picking system, termed LOTO 6, and that A could receive the winning monies.

The attempted method in which A was to be defrauded of cash was as follows: On March 16, 2015, pretending as if A were selected for a special drawing but violated a contract and needed to pay a penalty, the unknown person, who used the name of C belonging to Company B, called A, who was at A’s house located in Onojo-shi, Fukuoka Prefecture, and demanded that A deliver cash totaling 1,500,000 yen, by telling various falsehoods such as “Since A failed to pay 1,000,000 yen before the deadline, I paid 1,000,000 yen on behalf of A.” and “Bank D found out that the money was transferred by a person other than A, and therefore the special drawing at this time was voided. Since there was misconduct, A and I must pay a penalty of 2,970,000 yen to Bank D. If we do not pay the penalty, you cannot participate in the next drawing. Can you prepare half the amount, which is 1,500,000 yen?” By this act, A was to be made to wrongly believe that A needed to pay the penalty, and that A can participate in the special drawing, in which A will certainly win LOTO 6 if A pays the penalty and sends cash totaling 1,200,000 to a vacant apartment room located in Osaka City. Then, pretending as if the defendant were the addressee, E, the defendant was to receive the cash from a courier.

However, A consulted a police officer and uncovered the lies. Since A sent a box containing no cash, the attempt was not accomplished.

(2) Judgement in the first instance

The court of first instance held in its judgement as follows: Regarding the fraud stated in the charged facts in this case (hereinafter referred to as the “Fraud”), there was no advance conspiracy between the defendant and the accomplices, but a conspiracy was performed between the defendant and the accomplices after the deceitful act by an accomplice. However, the risk of fraud raised by the deceitful act by an accomplice before the participation of the defendant in the conspiracy cannot be attributed to the defendant. Furthermore, since a pretending-to-be-deceived operation commenced after the participation of the defendant in the conspiracy, an act of committing fraud was not conducted by the defendant and the accomplices. Therefore, the defendant cannot be held to bear the criminal responsibility of a coprincipal in attempted fraud.

For the reasons above, the defendant was acquitted.

(3) Judgement in prior instance

Being appealed by the public prosecutor, the court of prior instance held in its judgement as follows: It can be found that the defendant was engaged only in the part of delivery of property by the victim under a conspiracy performed after a deceitful act. On the premise of these facts, the defendant is a coprincipal in attempted fraud regardless of the commencement of a pretending-to-be-deceived operation. The judgement in the first instance, which did not reach the same conclusion, contains an error in fact finding that apparently affects the judgement.

For the reasons above, the judgement in prior instance was quashed, and the defendant was sentenced to imprisonment totaling three years, the execution of which was suspended for a period of five years.

2. Determination of this Court

(1)　According to the finding in the judgment of prior instance, the facts in this case are as follows: Around March 16, 2015, an unknown person, who used the name of C, told A the falsehoods stated in the charged facts in this case (hereinafter referred to as the “Deceitful Act”). Thereafter, A suspected the lies and began to implement a pretending-to-be-deceived operation after consultation with a police officer, and sent a box containing no cash to a designated place. On the other hand, on or after March 24, without being aware that the pretending-to-be-deceived operation had commenced, the defendant was requested by the unknown person to receive a package with the promise of compensation and agreed to the request with the awareness that there was a possibility that the defendant’s role was to receive fraudulent money, and on March 25, received a package that was sent from A that contained no cash at the vacant apartment room stated in the charged facts in this case (hereinafter referred to as the “Receiving Act”).

(2) According to the facts stated in (1) as mentioned above, in connection with the Fraud, the defendant was engaged in the Receiving Act, which was contemplated to be integrated with the Deceitful Act in order to accomplish the Fraud, in conspiracy with accomplices, without being aware that the pretending-to-be-deceived operation had commenced, after the Deceitful Act was conducted by an accomplice. From these points, it is adequate to construe that the defendant bears the responsibility of a coprincipal in attempted fraud in connection with the Fraud, including the Deceitful Act conducted before the defendant’s engagement, regardless of the commencement of the pretending-to-be-deceived operation.

3. Conclusion

Therefore, the judgement of prior instance, in which the defendant in this case, who attempted to defraud the victim of cash in conspiracy with accomplices, was held to be a coprincipal in attempted fraud including a deceitful act conducted by an accomplice, is legitimate.

Accordingly, pursuant to Article 414, and Article 386, paragraph (1), item (iii) of the Code of Criminal Procedure, the decision has been rendered as set forth in the main text by the unanimous consent of the justices.

Justice YAMASAKI Toshimitsu

Justice OKABE Kiyoko

Justice KIUCHI Michiyoshi

Justice TOKURA Saburo

Justice HAYASHI Keiichi