2018.03.19

2016 (A) 1549

Keishu Vol. 72, No. 1

Judgment regarding the meaning of the act of committing abandonment by a person responsible for protection by failing to give the protection referred to in Article 218 of the Penal Code

Case charged for abandonment causing death by a person responsible for protection (as a conjunctive count, the crime of causing death through gross negligence)

Judgment of the Second Petty Bench, quashed and decided by the Supreme Court

Osaka High Court, Judgment of September 28, 2016

1. The act of committing abandonment by a person responsible for protection by failing to give the protection referred to in Article 218 of the Penal Code is based on the premise of a situation where a senile, immature, physically disabled or sick person requires a specific protection act for his/her survival (a protection requiring situation) and means not conducting the specific act that is expected to be conducted under the Penal Code as the act of protection necessary for the survival of such person.

2. With regard to a case charged as abandonment causing death by a person responsible for protection pertaining to the defendant’s child (three years of age at that time), who died due to debilitation caused by malnutrition, the judgment in first instance acquitted the defendant on the ground that there is a reasonable doubt in holding that the defendant recognized that the child was in a condition requiring a certain protection act, considering the characteristics of the child, such as suffering from severe congenital myopathy in infancy, etc. Then, the judgment in prior instance held that there were errors in the fact finding in the judgment in first instance. However, it is difficult to say that the judgment in prior instance shows persuasive grounds for holding that the evaluation in the judgment in first instance is unreasonable. The judgment in prior instance is nothing more than a presentation of possible perspectives that are different from those of the judgment in first instance. Since it cannot be said that the judgment in prior instance sufficiently showed that the judgment in first instance is unreasonable in light of the rules of logic or rules of thumb, etc. (see the text of the judgment), there is illegality in construction and application of Article 382 of the Code of Criminal Procedure in the judgment in prior instance, and the judgment in prior instance should inevitably be quashed pursuant to Article 411, item (i) of the same Code.

3. Prosecution was instituted for abandonment causing death by a person responsible for protection, and a pretrial conference procedure was conducted. On the day of the pretrial conference procedure, the public prosecutor clarified the public prosecutor’s intention and stated that according to the progress of the trial, the public prosecutor might consider adding the charge of causing death through negligence or the charge of causing death through gross negligence as a conjunctive count. Then, the trial was conducted by a panel in which saiban-in participated. The presiding judge of the court of first instance required the public prosecutor to clarify whether the public prosecutor was going to alter the count, and the public prosecutor answered that the public prosecutor was not going to do so. In light of the above development of the trial, the nature and content of this case, etc. (see the text of the judgment), the court of first instance should be said to have fulfilled its obligation under procedure law by practically encouraging the public prosecutor to alter the count through the above-mentioned requirement of clarification and was not obliged to take further measures by ordering or urging the public prosecutor to alter the count.

(Regarding 1 to 3) Article 218 and Article 219 of the Penal Code

(Regarding 2) Article 382 and Article 411, item (i) of the Code of Criminal Procedure

(Regarding 3) Article 312 of the Code of Criminal Procedure and Article 208 of the Rules of Criminal Procedure



Penal Code

(Abandonment by a Person Responsible for Protection)

Article 218 When a person who is responsible for protection of a senile, immature, physically disabled or sick person, abandons, or fails to give necessary protection to such person, the person shall be punished by imprisonment with work for not less than 3 months but not more than 5 years.

(Abandonment Causing Death or Injury)

Article 219 A person who commits a crime prescribed under the preceding two Articles and thereby causes the death or injury of another, shall be dealt with by the punishment prescribed for either the crimes of injury or the preceding Articles, whichever is greater.



Code of Criminal Procedure

Article 312 (1) The court shall, upon the public prosecutor's request, allow the addition, withdrawal or alteration of the counts or applicable penal statutes in the charging sheet so far as this does not modify the identity of the charged facts.

(2) The court may order the public prosecutor to add or alter a count or applicable penal statute when the court finds it appropriate during the course of the proceedings.

(3) The court shall, when a count or applicable penal statute has been added, withdrawn or altered, notify the accused of the part added, withdrawn or altered without delay.

(4) The court shall, when it deems the addition or alteration in the count or the applicable penal statute may cause substantial disadvantage to the defense of the accused, rule to suspend the trial for a period necessary for the accused to prepare for a sufficient defense, upon the request of the accused or his/her counsel.

Article 382 When an appeal to the court of second instance has been made on the grounds that there was an error in the finding of facts and it is clear that that error has affected the judgment, facts which appear in the case records and evidence examined by the court of first instance which are sufficient to show that there is an error which would clearly affect the judgment shall be cited in the statement of the reasons for appeal.

Article 411 Even in absence of grounds as prescribed in the items of Article 405, the final appellate court may render a judgment to reverse the judgment of the court of first or second instance, on any of the following grounds when it deems that not doing so would clearly be contrary to justice:

(i) There is a violation of laws and regulations which would have affected the judgment.



Rules of Criminal Procedure

(Clarification, etc.)

Article 208 (1) When the presiding judge finds it to be necessary, he/she may request a person concerned in the case to provide clarification or urge such person to provide proof.

(2) An associate judge may take the measures prescribed in the preceding paragraph after notifying the presiding judge to that effect.

(3) A person concerned in the case may request that the presiding judge ask questions in order to obtain clarification.

The judgment in prior instance is quashed.

The appeal for the case is dismissed.

I. Determination regarding reasons for final appeal

The reasons for final appeal filed by the defense counsel, OHASHI Kumpei, including an allegation of violation of judicial precedent, are in fact mere allegations of violation of laws and regulations and errors in fact finding and do not fall under the grounds for final appeal listed in Article 405 of the Code of Criminal Procedure.

II. Ex officio determination

Considering the arguments of the defense counsel and examining this case ex officio, the judgment in prior instance should inevitably be quashed pursuant to Article 411, item (i) of the Code of Criminal Procedure. The reasons are as follows:

1. Summary of charged facts of this case and outline of proceedings of this case

Summary of charged facts of this case (after alteration of count) are as follows: The defendant, the biological mother of A (born in 2010), got married in April 15, 2013, and cared for A at her residence together with her husband, who adopted A on April 24, as a persons who has parental authority. Even though the defendant was responsible for giving A, who was an immature person and had developed slowly due to congenital myopathy, the protection necessary for survival by providing A with sufficient nutrition and having A receive appropriate medical care, in around April 2014, in conspiracy with her husband, at her residence, etc., the defendant did not provide A, who had already suffered poor nutrition by then, with sufficient nutrition, nor did have A receive appropriate medical care, and thereby failed to give A the protection necessary for her survival until around mid-June 2014. Consequently, on June 15, the defendant let A die due to debilitation caused by malnutrition.

In the pretrial conference procedure conducted by the court of first instance, the issues were arranged as follows: (i) Whether A died due to debilitation caused by malnutrition because A was not provided with sufficient nutrition; and (ii) Whether the defendant recognized that A was in a state of not being provided with sufficient nutrition, that is, a situation requiring protection through provision of more nutrition, etc. as protection necessary for survival.

The judgment in first instance found the fact that A had died due to debilitation caused by malnutrition, with regard to issue (i), but held that there remains a reasonable doubt on whether the defendant recognized that A was in a situation requiring protection through provision of more nutrition, etc. as protection necessary for survival, with regard to issue (ii), and therefore rendered an acquittal.

In response to the judgment, the public prosecutor appealed, alleging that there were errors in the fact finding with regard to issue (ii), and that there is a violation of laws and regulations in litigation proceedings in terms of the court of first instance rendering an acquittal without encouraging or ordering the public prosecutor to alter the count into a charge of causing death through gross negligence. The judgment in prior instance found the fact that the defendant recognized the facts pertaining to issue (ii) and held that there were errors in the fact finding in the judgment in first instance, and therefore quashed the judgment in first instance and remanded this case to the Osaka District Court, without making a determination on the point of violation of laws and regulations in litigation proceedings.

2. Facts of this case

According to the findings and records of the judgment in prior instance, the facts of this case are as follows:

(1) A was born on August 11, 2010 and had had weak muscles and difficulty in swallowing and other difficulties from birth, and had therefore been hospitalized and received medical treatment, such as injection of nutrition into her stomach using a nasal tube, etc. In December 2010, A was diagnosed as suffering from severe congenital myopathy in infancy, a disease causing weak muscles and slow development of exercise ability, (hereinafter referred to simply as “myopathy”).

A was discharged from hospital in March 2011, and lived with the defendant and the defendant’s mother (A’s grandmother; hereinafter referred to as the “grandmother”) at the grandmother’s residence. On April 21, 2011, A was certified as Grade 1 physically disabled by the city government. A kept on seeing a doctor about once a month. From January 2013 (two years and five months of age at that time), at the doctor’s judgment, A was taken off the nasal tube and started to receive nutrition only from solid food.

From about April 2013, A left the grandmother’s residence and started to live with the defendant and the defendant’s husband (A’s adoptive father: hereinafter referred to as the “husband”). A’s brother was born on April 30, and from then, the defendant, the husband, A, and A’s brother lived together. By August 2013 (two years and 11 months of age at that time), A became able to eat and walk by herself, and around then, A’s doctor examined A and told the defendant that the defendant could have A examined only when the defendant had something to consult with the doctor for and that A no longer needed to see the doctor regularly from then on.

On February 27, 2014 (A was three years and six months of age at that time.), the defendant had A examined by an orthopedic surgeon, and on that occasion, had A see A’s doctor. Since then, however, the defendant had not had A examined by A’s doctor, nor had asked a doctor for advice regarding A’s health condition.

(2) A weighed less than average at the time of her birth, and since then, had weighed less than the average weight of girls of the same age most of the time, but grew steadily in height. In an examination conducted in October 2013, A measured 94 cm in height and 11.4 kg in weight. However, in a video recorded on May 23, 2014 (hereinafter referred to as the “Video”), A appeared with legs and arms that were obviously thinner than those in A’s photo shot on October 14, 2013, and her calf bones and knee joints were clearly visible. Furthermore, in a measurement conducted on June 16, 2014 after A’s death, A measured 101 cm in height, having grown 7 cm from October in the previous year, but weighed about 8 kg, a reduction of about 3.4 kg. With regard to other aspects of the body, the ribs were standing out in her breast, the shoulder blades and the backbone were standing out in her back, other bones and joints were standing out in her waist and hips, her cheeks were sunken, and her legs and arms were extremely thin so that the bones and joints were clearly visible.

The defendant did not measure A’s weight and did not know A’s exact weight, but cared for A as her mother and recognized the objective condition of A’s body shape through bathing and other opportunities.

(3) Most of the time, A had an irregular diet. Sometimes she ate nothing all day and sometimes had two meals or one meal one day. For more than two months from around April 2014 until she died, in times of a day including during the night other than meal times, she ate rice from the rice cooker and ice cream from the refrigerator without asking on four or five occasions and once ate a large quantity of garlic chips without asking. The defendant recognized such diet of A.

(4) From February 20 to February 22, 2014, A stayed at the grandmother’s residence, but since then, she had not seen the grandmother. In and after March 2014, A saw the defendant’s friends and the husband’s relatives and ate meals together with them. Even in June 2014, on June 1, the defendant and A had a meal in a ramen restaurant together with the husband’s mother, brother, sister, etc., and on June 10, the defendant’s friend, and on June 13, the husband’s brother, visited the defendant’s residence and saw A.

(5) On June 15, 2014 (three years and 10 months of age at that time), A died due to debilitation caused by malnutrition.

3. Allegations of the parties in the first instance and determination in the judgment in first instance

(1) The public prosecutor alleged that since changes in A’s body shape and reduction in her weight were obvious from her appearance, and deficiency in meal amounts was also obvious from her abnormal eating habits, etc., the defendant recognized A’s body shape and weight, abnormal changes in meal amounts, and her malnourished state, and that since they had the recognition to the extent that A’s health might be damaged if they did not provide her with sufficient nutrition or had her receive medical care, the defendant and the husband could be found to have had intent.

On the other hand, the defendant made the excuses that she had noticed that A’s legs and arms were thin in and after March 2014 and tried to improve A’s diet, thinking A’s irregular diet caused the thinness, but failed, and that since A ate a large amount of food on the day following a day when she ate no meals, and there was no occasion that A did not eat meals for two straight days, she did not think that A was not able to take in sufficient nutrition (hereinafter referred to as the “Excuses”).

(2) The judgment in first instance stated that this case is not a case in which the fact that the defendant and the husband did not provide A with meals intentionally or provided only a small amount of food intentionally is proved. The judgment also stated that the defendant had recognized A’s body shape, etc., and that, in general, facts relating to changes in A’s body shape, etc. and the way she became thin are facts that make people recognize that A is in a situation where she is not provided with sufficient nutrition and in a situation where A’s health may be damaged. On the premise of the above statements, the judgment pointed out the following facts: (i) Since A could not build muscles well due to myopathy and had been underweight since her birth, recognition regarding abnormality in the way she became thin may differ between a person with such previous knowledge and a person without it; (ii) among relatives, friends, etc. who saw A in the period from March 2014 to June 2014, there was no person who pointed out A’s health problems that could be seen from her body shape, etc. to the defendant or the husband; (iii) since a human’s body shape and weight change little by little every day, it might have been difficult for a person who spent time with A every day to recognize such changes; (iv) A was growing relatively steadily in height; (v) the fact that there was an obvious change in A’s ability to exercise due to debilitation is not proved; (vi) the fact that the defendant and the husband talked about that they should go to a hospital to get a nasal tube if A had no meal for two days or more can be evaluated as an indication of their thinking that A was not in such poor health condition as to require a nasal tube; and (vii) the defendant and the husband had friends and the husband’s relatives see A until June 2014, and such act is not reasonable as an act of persons who recognized that A was in a situation of not being provided with sufficient nutrition. The judgment in first instance therefore held that the Excuses cannot be directly rejected only by facts relating to changes in A’s body shape, etc. and the way A became thin, and that even if the facts alleged by the public prosecutor are considered comprehensively, there still remains a reasonable doubt in saying that the defendant recognized that A was in a situation requiring protection through provision of more nutrition, etc. as protection necessary for survival.

4. Determination of this Court

(1) From the wording and purpose of Article 218 of the Penal Code, the act of committing abandonment by a person responsible for protection by failing to give protection should be construed to be on the premise of a situation where a “senile, immature, physically disabled or sick person” requires a specific protection act for his/her survival (a protection requiring situation) and mean not conducting a specific act that is expected to be conducted under the Penal Code as an act of “protection necessary for survival” of such person. It is apparent that the same Article does not require a person responsible for protection to widely conduct general protection acts (e.g., caring, rearing, nursing and other general acts conducted by parents of an immature person as a matter of course) as an obligation under the Penal Code.

According to the altered count specified in the aforementioned 1, it can be understood that the public prosecutor is alleging, with regard to an act of committing a crime in this case, that from around April to around mid-June, 2014, (i) even though the defendant was obliged to conduct the protection acts of (a) providing A with sufficient nutrition and (b) having A receive appropriate medical care, the defendant failed to conduct such protection acts. With regard to a situation requiring these protection acts, (ii) the facts that the victim was an immature person, suffered from myopathy, developed slowly, and was in a state of poor nutrition were specified in the charged facts, and in addition to these, the way the victim became thin and changes in weight, abnormal eating habits, etc. were alleged. From the above circumstances of the count, it cannot necessarily be said that the count is not identified, and in some cases, proceedings and determination could be conducted based on a count or allegation identified to such extent. However, the above (i) can include a significantly wide range of protection acts, and in this case, as held in the judgment in first instance, it cannot be admitted that the defendant and the husband’s acts of failing to give protection, such as not providing A with meals or providing A such a small amount of food as to be insufficient to ensure nutrition, are proven. Moreover, the defendant’s acts of failing to give protection, such as not trying to improve A’s diet in spite of the defendant’s having had sufficient knowledge to improve it according to characteristics of a child with myopathy, are also not proven. Therefore, in this case, under such circumstances, it is inevitable to say that what kind of a protection requiring situation should be premised on and what kinds of acts are alleged as protection acts that should have been conducted are left undefined. Thus, examining the content of the protection requiring situation and protection acts that should have been conducted in this case from the found facts specified in the aforementioned 2, by May 23, 2014, when the Video was recorded, it was apparent that A was in a state of objectively severe malnutrition, and even on the premise that A suffered from myopathy, by then at the latest, it can be found that receiving advice from a doctor, etc. on a way to take in nutrition appropriately or having A receive appropriate medical care was an act of protection necessary for survival of A that should have been conducted by persons caring for A, but it can be found that both the defendant and the husband, who were the persons caring for A, failed to conduct such protection act (hereinafter the “Protection Act”).

In this case, as an issue of intent pertaining to the act of committing the crime, which is the failure to conduct the Protection Act, whether or not the defendant recognized that A was in a state requiring the Protection Act as protection necessary for survival should be examined. As aforementioned, the judgment in first instance can be construed to have held that in terms of what a person with previous knowledge of the characteristics of A, such as suffering from myopathy, etc., can recognize when seeing A, the Excuses cannot be directly rejected only by facts relating to changes in A’s body shape, etc. and the way A became thin, and even if the facts alleged by the public prosecutor are considered comprehensively, it cannot be inferred without any reasonable doubt that the defendant recognized that A was in a state requiring the Protection Act.

It cannot be said that there were errors in the fact finding in the judgment in first instance unless the fact finding in the judgment in first instance, which presented the above determination and acquitted the defendant, is specifically shown to be unreasonable in light of the rules of logic or rules of thumb, etc. (see 2011 (A) No. 757, Judgment of the First Petty Bench of the Supreme Court of February 13, 2012, Keishu Vol. 66, No. 4, at 482). Therefore, this Court will examine the judgment in prior instance from this point of view.

(2) First, the judgment in prior instance held that it can be strongly inferred that since changes in A’s body shape and weight occurred in the form of A’s becoming conspicuously thin, and the defendant recognized such condition of A’s appearance, etc., by late May 2014, when A became conspicuously thin, at the latest, unless there are exceptional circumstances, the defendant recognized that A was in a state requiring protection by provision of more nutrition, etc. as protection necessary for survival. Stating that changes in A ‘s body shape, etc. and the way she became thin were abnormal even if the fact that A suffered from myopathy is taken into consideration, the judgment also held that the fact that the defendant had knowledge that A could not build muscles well due to myopathy and that A’s weight was below average does not eliminate the possibility of the defendant’s recognizing the abnormality of changes in A’s body shape, etc. and the way she became thin, and according to records, there are no exceptional circumstances that counter the above inference.

Certainly, it can be found that the changes in A’s body shape, etc. and the way she became thin as found in the aforementioned 2 were apparently abnormal objectively. However, an issue in this case is the existence or non-existence of the possibility of the defendant’s having misunderstood and thought that the changes in A’s body shape, etc. and the way she became thin were not so abnormal in light of A’s characteristics recognized by the defendant by then. The grounds for the judgment in prior instance determining that a possibility of the defendant’s recognizing the abnormality of changes in A’s body shape, etc. and the way she became thin is not eliminated even if the defendant’s knowledge of A’s characteristics is taken into consideration are summed up in two points: The extent of abnormality of changes in A’s body shape, etc. and the way she became thin was significant; and the defendant spend time with A every day as A’s biological mother. Other reasons sufficient to hold that such possibility is not eliminated are not presented. Altogether, even if the above points are taken into consideration, it is difficult to say that the judgment in prior instance is presenting grounds persuasive enough to hold that the evaluation in the judgment in first instance, which held that there is room to acknowledge the possibility of the defendant’s having misunderstood the extent of abnormality of changes in A’s body shape, etc. and the way she became thin, was unreasonable.

Furthermore, the judgment in prior instance held as follows: (i) the fact that there was no person who pointed out A’s health problems among the husband’s relatives and friends who saw A does not affect the determination on the defendant’s recognition of A’s situation since those persons’ length and frequency of times used to spend time with and observe A, the extent of their interest in A, their knowledge of A’s growing-up situation, etc. differ vastly from those of the defendant, and their recognition cannot be treated as equal to the defendant’s recognition; (ii) since changes in A’s body shape, etc. and the way she became thin were factors sufficient enough for the defendant to recognize that A lacked nutrition, even if no abnormality was seen in A’s exercise capacity, etc., such non-existence of abnormality does not affect determination on the defendant’s recognition of A’s situation; (iii) given the fact that the husband’s relatives and friends whom the defendant and the husband let A see were merely persons who did not know A’s growing-up situation and the fact that the grandmother, who had been involved in care for A since A’s birth, was not allowed to see A since February 22, 2014, there is a possibility that the defendant and the husband kept A away only from persons who were likely to criticize them, and therefore the defendant’s actions were not unreasonable as actions of a person with intent to commit the crime by inaction; (iv) regarding the fact that the defendant and the husband talked about that they should think about getting a nasal tube if A did not eat for two days or more, the fact itself that they were in a situation where they had to think about having A take in nutrition through a nasal tube is a circumstance implying that the defendant recognized that there were certain problems in A’s way of taking in nutrition; and (v) when A’s actions, such as eating rice and ice cream at times of the day other than meal times without asking and eating garlic chips, are viewed as a whole, such actions can be said to be anomalous circumstances that would make people objectively infer that A, at that time, was continuously placed in a situation where she felt hungry, and therefore if a person recognizes changes in A’s body shape, etc. and the way she became thin, and A’s action viewed as a whole, in general, the person will recognize that A is facing a problem of poor nutrition regardless of the situation of A’s individual meal occasions.

However, regarding the above (i), even though it can be found that the husband’s relatives who saw A in June 2014, who is inferred to have had almost the same appearance as that in the Video, in which the image of abnormally thin A is recorded, and recognized such appearance of A, there was no person who pointed out A’s health problem among them. This fact can be evaluated as a circumstance implying that it was not easy for people who acknowledged that A was thin because of her disease to notice that A was in a state of poor nutrition. Therefore, the determination in the judgment in first instance, which treated this fact as one of the grounds for not rejecting the Excuses, cannot be said to be unreasonable.

Regarding the above (ii), on the premise of the evaluation in the judgment in first instance that there is a possibility of the defendant’s having misunderstood the extent of the abnormality of the changes in A’s body shape, etc. and the way she became thin, the fact that there was no abnormality in A’s exercise capacity, etc. can be evaluated to be a factor strengthening such possibility of misunderstanding.

Regarding the above (iii), since the meaning of the defendant’s action of having had A see the husband’s relatives but not the grandmother can be conceived of in many ways, such action itself cannot be said to be sufficient enough to point out the unreasonableness of the judgment in first instance.

Regarding the above (iv), given that the defendant and the husband did not show signs of having been trying to hide A from the outside world since they took A out to have a meal with relatives and had friends see A until June 2014, and that there are no circumstances implying that they intentionally avoided having A seen in a medical institution, as held in the judgment in first instance, there is room to consider that the defendant and the husband did not have A seen in a medical institution even though they talked about getting a nasal tube because they misunderstood and thought that A’s health condition was not so serious as to require the Protection Act. Therefore, the evaluation in the judgment in first instance, which held that the above conversation may become a circumstance showing that the defendant had no recognition of the requirement for the Protection Act, is reasonable to a certain extent.

Regarding the above (v), on the premise of the evaluation in the judgment in first instance that there is a possibility of the defendant’s having misunderstood the extent of the abnormality of the changes in A’s body shape, etc. and the way she became thin, the mere fact that the defendant recognized A’s actions, such as eating rice in the middle of the night several times without asking and eating garlic chips, etc. without asking, does not directly link to the fact that the defendant recognized that A was continuously in a state of malnutrition.

Therefore, determination in the judgment in prior instance regarding the above points (i) to (v) is nothing more than presentation of possible perspectives that are different from those of the judgment in first instance. Even if these perspectives are taken into consideration comprehensively, the judgment in prior instance cannot be said to have sufficiently shown that the judgment in first instance, which held that there is a reasonable doubt in holding that the defendant recognized that A was in a situation requiring the Protection Act, is unreasonable.

(3) For the reasons stated above, the judgment in prior instance cannot be evaluated as judgment showing that the judgment in first instance, which acquitted the defendant by holding that, with regard to intention to commit abandonment causing death by a person responsible for protection by failing to give protection, that is, failing to conduct the Protection Act, there is a reasonable doubt in holding that the defendant recognized that A was in a state requiring the Protection Act, has unreasonable aspects in light of the rules of logic or rules of thumb, etc. Thus, there is illegality in construction and application of Article 382 of the Code of Criminal Procedure in the determination in prior instance, which held that there are errors in the fact finding in the judgment in first instance, and it is apparent that this illegality affects the judgment, and therefore it would be significantly contrary to justice if the judgment in prior instance is not quashed.

And, according to the above examination of this case, the judgment in first instance, in which the defendant was acquitted, cannot be said to have unreasonable aspects in light of the rules of logic or rules of thumb, etc.

III. Public prosecutor’s reasons for appeal alleging violation of laws and regulations in litigation proceedings, etc.

1. The public prosecutor alleges that there is violation of laws and regulations in litigation proceedings in the first instance, which rendered an acquittal without encouraging or ordering the public prosecutor to alter the count into a crime of causing death through gross negligence even though the court of first instance was obliged to do so. However, further examining this case based on case records, as stated as follows, there is no violation of laws and regulations in litigation proceedings in the first instance.

2. Development of the trial in the first instance that is apparent from records is as follows:

(1) On December 22, 2014, the public prosecutor instituted prosecution of this case as a crime of committing abandonment causing death by a person responsible for protection, and then the court of first instance conducted a pretrial conference procedure for this case.

(2) On June 29, 2015, the public prosecutor submitted a request for alteration of count to alter the initial count into the count stated in II-1 as aforementioned, and on the day of the second pretrial conference procedure, July 3, 2015, the court of first instance issued a ruling allowing the alteration of count, and on the same date, the public prosecutor said, “the public prosecutor is not going to seek punishment for a crime of causing death through gross negligence in this case,” to clarify the public prosecutor’s intention.

(3) On the day of the seventh pretrial conference procedure, November 10, 2015, the public prosecutor said, “the public prosecutor had expressed the intention of not seeking punishment for the crime of causing death through gross negligence in this case, but according to the progress of the trial, the public prosecutor may consider adding the charge of causing death through negligence or the charge of causing death through gross negligence as a conjunctive count, as the case may be, and has already notified the defense counsel thereof. The public prosecutor does not require recommendation from the court for the addition if necessary,” to clarify the public prosecutor’s intention. On the day of the eighth pretrial conference procedure, November 11, the court of first instance concluded the pretrial conference procedure.

(4) On November 16, 2015, by a panel in which saiban-in participated, the first trial day was held, and the proceedings were conducted. After examination of evidence was conducted on the fourth trial day, November 20, the presiding judge of the court of first instance said to the public prosecutor, “I would like to confirm, just in case, that the public prosecutor is not going to change anything regarding the count,” and the public prosecutor said, “not at this moment.”

(5) On the fifth trial day, November 24, 2015, the closing arguments, oral arguments, and final statements were conducted, and then deliberations were conducted by the panel in which saiban-in participated. On November 30, the court of first instance rendered an acquittal.

3. In light of the above circumstances that are apparent from records, such as the development of the litigation, the nature and content of this case, etc., the court of first instance should be said to have fulfilled its obligation under procedure law by practically encouraging the public prosecutor to alter the count through the above-mentioned requirement of clarification, and it is appropriate to understand that the court of first instance is not obliged to take further measures by ordering or urging the public prosecutor to alter the count.

4. In the meantime, the court of prior instance issued a ruling allowing the addition of the conjunctive count, and the charged offense and applicable penal statute pertaining to a crime of causing death through gross negligence. However, the proceedings and determination on the count and the applicable penal statute added and altered in court of second instance, which conducts a trial based on case records in the first instance, should be conducted on the premise that the judgment in first instance is to be quashed on the ground that there were errors in the fact finding or violation of laws and regulations in the judgment in first instance. Therefore, in this case, where errors cannot be found in the judgment in first instance, the proceedings and determination on the conjunctive count of a crime of causing death through gross negligence cannot be conducted (see 1966 (A) No. 2022, Judgment of the First Petty Bench of the Supreme Court of May 25, 1967, Keishu Vol. 21, No. 4, at 705).

IV. Conclusion

For the reasons stated above, since the appeal by the public prosecutor alleging errors in fact finding in the judgment in first instance and violation of laws and regulations in litigation proceedings in the court of first instance does not have any grounds, it is appropriate to decide this case by this Court.

Accordingly, the judgment in prior instance is quashed pursuant to Article 411, item (i) of the Code of Criminal Procedure, the appeal by the public prosecutor is dismissed pursuant to Article 413, proviso, Article 414, and Article 396 of the Code of Criminal Procedure, and the judgment has been rendered as set forth in the main text by the unanimous consent of the justices.

Public prosecutors, OBA Ryotaro and YOSHIDA Hisashi, attended the trial.

Justice KANNO Hiroyuki

Justice ONIMARU Kaoru

Justice YAMAMOTO Tsuneyuki