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2017 (A) 322

2018.03.22
2017 (A) 322
Keishu Vol. 72, No. 1
Judgment regarding a case where the commitment of fraud is found to have been commenced
Case charged with attempt of fraud
Judgment of the First Petty Bench, quashed and decided by the Supreme Court
Tokyo High Court, Judgment of February 2, 2017
With regard to lies told as part of a plan to have the victim transfer cash to her residence and then deliver the cash to the defendant impersonating a police officer, under the facts of this case (see the text of the judgment), where the content of the lies was important content pertaining to matters planned to become premises for the victim’s determination on whether or not she would deliver cash, and included lies that directly led to an act of requiring the victim to deliver cash, and where an act of making the victim believe the lies as truth can be said to have significantly increased the danger of the victim’s delivering cash immediately in response to a demand made by the defendant, the commitment of fraud can be found to have been commenced at the time when a series of such lies were told to the victim, even though words demanding the victim to deliver cash were not stated.

(There is a concurring opinion.)
Article 43, Article 246, and Article 250 of the Penal Code



Penal Code

(Reduction or Exculpation of Punishments for Attempts)

Article 43 The punishment of a person who commences a crime without completing it may be reduced; provided, however, that voluntary abandonment of commission of the crime, shall lead to the punishment being reduced or the offender being exculpated.

(Fraud)

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

(2) The same shall apply to a person who obtains or causes another to obtain a profit by the means prescribed under the preceding paragraph.

(Attempts)

Article 250 An attempt of the crimes prescribed under this Chapter shall be punished.
The judgment of prior instance is quashed.

The appeal for the case is dismissed.

Out of the number of days of pre-sentencing detention at the prior instance, 120 days are included in the calculation of the sentence.
Reasons for final appeal filed by the public prosecutor, including an allegation of violation of a 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.

However, considering the arguments of the public prosecutor 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. The judgment of first instance found the facts of the crime as follows and sentenced the defendant to two years and four months of imprisonment, holding that such facts fall under an attempt of fraud.

The defendant attempted to defraud the victim (69 years of age at that time) of cash by impersonating a police officer. As a precondition, on June 8, 2016, the victim was told a lie by a person impersonating her nephew that the nephew was urgently in need of cash in relation to his work and delivered 1,000,000 yen in cash to a person impersonating an employee of an affiliate company of the company where the nephew works, believing the lie. In a conspiracy among the defendant and unknown persons, with the intention of taking advantage of the above condition of the victim, having the victim withdraw cash from her bank account in advance, and receiving the cash from the victim, from around 11:20 a.m. to around 1:38 p.m. on June 9, unknown persons made calls to the victim’s residence several times and told the victim lies as follows: “We arrested a suspicious man at the station yesterday, and the man mentioned a victim’s name.” “Weren’t you victimized by fraud yesterday?” “How much money is left in your bank account?” “You had better go to the bank immediately and withdraw the amount in full.” “Please cooperate in getting back yesterday’s 1,000,000 yen.” “I will head to your residence.” And, “I will be prepared so that I can arrive before two o'clock.” Through the above lies, the victim was made to believe that the persons calling her were police officers and that she needed to follow their instructions, and therefore she withdrew cash from her bank account. The defendant then attempted to receive cash from the victim at around 1:38 p.m. on the same day, impersonating a police officer. However, since the defendant was found and arrested by patrolling police officers near the victim’s residence, the defendant could not accomplish his purpose.

2. The defendant appealed on the ground of inappropriateness of sentencing in the judgment in first instance. Prior to making a determination on the reason for appeal, the judgment in prior instance quashed the judgment in first instance by holding ex officio as follows and acquitted the defendant on the ground that an act of deceiving another person (a deceiving act) in fraud cannot be found in this case, and therefore the charged facts of this case do not constitute a crime.

An act of deceiving another person referred to in Article 246, paragraph (1) of the Penal Code can be understood to mean an act of making another person deliberately believe falsehoods in order to have such person deliver property. The act of impersonating a police officer and persuading the victim to withdraw cash is an act of encouraging the victim to get prepared for delivery of property but not an act of requiring the victim to deliver the withdrawn cash. Such act cannot be said to be an act of deceiving another person through fraud and cannot be acknowledged as an act that generates actual and substantial danger of fraud. Since the facts of the crime found by the judgment in first instance cannot be construed to include statements on the criminal’s deceiving act conducted in order to have the victim deliver property, that is, cash, the judgment in first instance has illegality of inadequate reasons.

3. However, the above determination in the judgment in prior instance cannot be affirmed. The reasons are as follows.

(1) Facts of this case

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

a. On June 8, 2016, the victim, who has her residence in Nagano City, in a call from an unknown person impersonating her nephew, was told the lie that the nephew was urgently in need of cash in relation to his work and delivered 1,000,000 yen in cash to a person impersonating an employee of an affiliate company of the company where the nephew works, believing the lie.

b. At around 11:20 a.m. on June 9, 2016, in calls from unknown persons impersonating police officers, the victim was told in the first call, “We arrested a suspicious man at the station yesterday, and the man mentioned a victim’s name.” “Weren’t you victimized by fraud yesterday?” “How much money is left in your bank account?” “You had better go to the bank immediately and withdraw the amount in full.” And, “Please cooperate in getting back yesterday’s 1,000,000 yen.” The victim was then told in the second call from an unknown person impersonating a police officer at around 1:01 p.m. on the same day, “I will head to your residence.” And, “I will be prepared so that I can arrive before two o'clock.”

c. On the night of June 8, 2016, the defendant was instructed by an unknown person to go to Nagano City. On the morning of June 9, the defendant travelled to Nagano City, knowing that the defendant’s role was to receive money obtained by fraud. At around 1:11 p.m. on the same day, from an unknown person, the defendant was informed of the victim’s address and instructed as follows: “Receive money from a grandma.” And, “Go and get money, pretending to be a 29-year-old detective.” Following the instructions, the defendant headed for the victim’s residence, but before arriving at the victim’s residence, was questioned and arrested by police officers.

d. The unknown persons, who impersonated police officers and made the two calls specified in the above-mentioned b, planned to, in the name of cooperation for restoring the money obtained by fraud specified in the above-mentioned a, have the victim, who believed that the unknown persons were police officers, withdraw cash from her bank account and deliver the cash to the defendant, who was going to impersonate a police officer and visit the victim’s residence, and thereby defraud the victim of the money. Based on the plan, the unknown persons said the words specified in the above-mentioned b to the victim, and based on the plan, the defendant headed for the victim’s residence.

(2) Whether the commitment of fraud was commenced in this case

In this case, the words specified in the above-mentioned b were directly stated to the victim by the unknown persons impersonating police officers, and included the lie that the victim needed to withdraw cash (the first call), the lie that the victim needed to cooperate with police in order to get back the money taken by fraud on the preceding day (the first call), and the lie that a police officer would visit the victim’s residence in a short time (the second call). According to the above found facts, the act of stating these lies (hereinafter referred to as “the Lies”) was conducted as part of a plan for making the victim believe the Lies as truth and thereby having the victim transfer cash to her residence in advance and deliver the cash to the defendant, who was going to visit the victim’s residence afterward, impersonating a police officer, and require the victim to deliver the cash. In the crime plan, the content of the Lies can be found to be important content pertaining to matters planned to become premises for the victim’s determination of whether or not she would deliver cash. The Lies stated under the crime plan for having the victim deliver cash by telling several lies step-by-step include lies connected directly to an act of requiring the victim to deliver cash, such as words requiring the victim to withdraw cash from her bank account and transfer it to her residence and words informing her that a police officer would visit the victim’s residence in a short time. An act of making the victim, who had already been defrauded of 1,000,000 yen, believe the Lies as truth can be said to have significantly increased the danger of the victim’s delivering cash immediately in response to a requirement made by the defendant, who was going to visit the victim’s residence in a short time. In light of these facts, the commitment of fraud can be found to have been commenced at the time when a series of the Lies were stated to the victim even though words requiring the victim to deliver cash were not stated.

Therefore, it was legitimate for the judgment in the first instance to find facts as per facts of the crime and hold that such facts as constituting an attempt of fraud. The judgment in prior instance, which quashed the judgment in the first instance on the ground that the judgment in the first instance has illegality of inadequate reasons, contains illegality of making a mistake in construction and application of laws and regulations, and it is apparent that this illegality affects judgment, and therefore it would be significantly contrary to justice if the judgment in prior instance is not quashed.

Accordingly, the judgment in prior instance is quashed pursuant to Article 411, item (i) of the Code of Criminal Procedure. Given examination of this case based on case records, it is appropriate to maintain the judgment in first instance, including the determination of sentencing the defendant to two years and four months of imprisonment. Since the appeal by the defendant turns out to lack reasons, the appeal is dismissed pursuant to Article 413, proviso, Article 414, and Article 396 of the same Code. For inclusion of the number of days of pre-sentencing detention at the prior instance in the calculation of the sentence, Article 21 of the Penal Code is applied, and for court costs in this Court and the court of prior instance, Article 181, paragraph (1), proviso of the Code of Criminal Procedure is applied. The judgment has been rendered as set forth in the main text by the unanimous consent of the justices. However, there is a concurring opinion of one of the justices, YAMAGUCHI Atsushi.



The concurring opinion of the justice, YAMAGUCHI Atsushi, is as follows:

I agree with the court opinion but want to make a supplementary statement from a theoretical point of view on why the charged facts of this case constituted an attempt of fraud.

In order to find an “act of deceiving another person,” which is an act of committing fraud, an act of deceiving another person for the purpose of having the person deliver property, etc. and with regard to important matters that become the basis for determination on delivery is required to exist. A person may become guilty of an attempt of fraud if he/she commences such “act of deceiving another person,” but this does not necessarily mean that a person will never become guilty if he/she does not commence such act. According to the judicial precedent of this Court, even if a person does not commence an act of committing a crime directly, if a person commences an act that is closely related to an act of committing a crime and that is acknowledged to have the objective danger of resulting in a crime, the person may become guilty of an attempted crime (see 2003 (A) No. 1625, Judgment of the First Petty Bench of the Supreme Court of March 22, 2004, Keishu Vol. 58, No. 3, at 187). Therefore, if an act of requiring delivery of property is not conducted, the commencement of an “act of deceiving another person,” which is an act of committing fraud, can be said to have not been conducted directly yet, but this does not necessarily mean that a person does not become guilty of an attempt of fraud. The problem in determining whether an act constitutes an attempted crime is whether there can be found the commencement of an act that is “closely related” to an act of committing a crime and that is acknowledged to have “objective danger.” In order to make a determination on this problem, we are required to examine the problem in consideration of why the factor of being “closely related” and the factor of “objective danger” are linked together and why both factors are required to exist at the same time. Especially, it is important to make a determination on the factor of being “closely related” in light of avoiding punishing attempted crimes without limit and defining subjects of punishment appropriately and clearly.

In this case, there was the first call requiring the victim to withdraw cash from her bank account, and after the cash was transferred to the victim’s residence, the second call informing the victim that a police officer would visit her residence in a short time was made. As seen from these facts, in this case, the defendant was going to impersonate a police officer and require the victim to deliver cash at the victim’s residence, and at that time, an “act of deceiving another person,” which is an act of committing fraud, was contemplated to be conducted. It can be understood that by the above-mentioned second call informing the victim of a police officer’s visit, an act that was “closely related” to the act of committing fraud was conducted. Moreover, the danger of the victim, who was victimized by fraud on the preceding day, being deceived by the series of lies in this case and delivering cash can be found to be significantly increased by the above-mentioned second call. For the above reasons, in this case, where, two calls were made as a series, inserting between them the transfer of cash withdrawn from the victim’s bank account to the victim’s residence, it can be clearly said that an act that was closely related to the act of committing fraud was conducted by the second call, regardless of whether the first call constituted an attempt of fraud, and therefore it is understood that the charged facts of this case can be affirmed to have constituted an attempt of fraud.



Public prosecutors, YOSHIDA Hisashi and YOSHIDA Junpei, attended the trial.
Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice YAMAGUCHI Atsushi

Justice MIYAMA Takuya
(This translation is provisional and subject to revision.)