2019.01.22

2018 (Kyo) 7

Minshu Vol. 73, No. 1

Decision concerning whether or not a court may order submission of a document which is a "document relating to the trial" as prescribed in Article 47 of the Code of Criminal Procedure due to such reasons that the first-mentioned document is what is generally called a cited document as prescribed in Article 220, item (i) of the Code of Civil Procedure

Case of appeal with permission against the ruling of the court of appeal to revoke a ruling issued for a petition for order of submission of documents

Decision of the Third Petty Bench, quashed and remanded

Osaka High Court, Decision of May 10, 2018

Even if a petition for order of submission of documents is filed with respect to a document which is a "document relating to the trial" as prescribed in Article 47 of the Code of Criminal Procedure, if such document is what is generally called a cited document as prescribed in Article 220, item (i) of the Code of Civil Procedure and the refusal of submission of such document by the custodian thereof goes beyond the bounds of the custodian's discretionary power or constitutes an abuse of such power, in light of various circumstances such as the necessity and degree of necessity to examine the relevant document in a civil litigation and the risk of occurrence of adverse effects such as infringement of the fame or privacy of the defendant or suspect, etc. due to disclosure of the relevant document, the court may order submission of such document.

2. In the case where a copy of a document, which was prepared in relation to an investigation for a criminal case and for which neither itself nor the original thereof were submitted in the criminal trial is in the possession of the prefecture in which the prefectural police that was in charge of such investigation is located and a petition for order of submission of document is filed with respect to such copy, even if the original is in the custody of a public prosecutor, if the copy is what is generally called a cited document as prescribed in Article 220, item (i) of the Code of Civil Procedure or what is generally called a legal relationship document as prescribed in item (iii) of that Article, and the refusal of submission of the copy by the relevant prefecture goes beyond the bounds of the prefecture's discretionary power or constitutes an abuse of such power, in light of various circumstances such as the necessity and degree of necessity to examine the relevant document in a civil litigation and the risk of occurrence of adverse effects such as infringement of the fame or privacy of the defendant or suspect, etc. due to disclosure of the relevant document, the court may order submission of such copy.

(Regarding 1 and 2) Articles 220, item (i) and item (iv)(e) of the Code of Civil Procedure and Article 47 of the Code of Criminal Procedure

(Regarding 2) Article 220, item (iii) of the Code of Civil Procedure



Code of Civil Procedure

(Obligation to Submit Documents)

Articles 220, item (i),item (iii) and item (iv)(e)

In the following cases, the person in possession of the document in question may not refuse to submit that document:

(i) if a party is personally in possession of a document that the party has cited in litigation;

(iii) if the document has been prepared in the interest of the party that will offer the evidence or with regard to the legal relationships between the party that will offer the evidence and the person in possession of the document;

(iv) in cases other than those listed in the preceding three items, if the document does not fall under any of the following categories:

(e) documents related to the litigation of a criminal case, the case record in a juvenile protective case, or a document seized in these cases.



Code of Criminal Procedure

Article 47 No document relating to the trial shall be made public prior to the commencement of the trial; provided, however, that this shall not apply when it is necessary for the public interest or other reasons, and when the court believes it to be appropriate.

The decision in prior instance is quashed.

This case is remanded to the Osaka High Court.

Reasons for an appeal stated by the appellant

1. According to the records, the background to this case is as described below.

(1) In this case, the appellant alleges that the appellant was arrested as a suspect of an injury case (hereinafter referred to as the "Injury Case") due to illegal investigation conducted by the Osaka Prefectural Police and filed a petition for order of submission of documents (hereinafter referred to as the "Petition") pursuant to Article 220, items (i) to (iii) of the Code of Civil Procedure with respect to the copies of reports, etc. on the investigation conducted for the Injury Case (documents stated in 1 and 2 of the list of documents attached to the decision in the first instance after the correction made in the decision in the second instance; hereinafter referred to as "Documents 1" and "Documents 2," respectively) and the copies of the written request for an arrest warrant, prima facie showing materials for requesting an arrest warrant and the arrest warrant for the abovementioned arrest (the documents stated in 3 of that attached list; hereinafter these documents are referred to as "Documents 3" and Documents 1 to 3 are collectively referred to as the "Documents") that are held by the opponent, in an action seeking damages pursuant to Article 1, paragraph (1) of the State Redress Act against the opponent.

(2) The Osaka Prefectural Police was in charge of the investigation for the Injury Case and the appellant was arrested as the suspect of the Injury Case in January 2015. Following the arrest, the appellant was prosecuted and convicted with respect to the Injury Case and the judgment of conviction became final and binding in December 2017.

Neither the Documents nor the original thereof (hereinafter referred to as the "Original Documents") were submitted in the criminal trial for the Injury Case.

2. The court of prior instance found that regarding Documents 1, the circumstances fall under the case prescribed in Article 220, item (i) of the Code of Civil Procedure, i.e. "if a party is personally in possession of a document that the party has cited in litigation" (hereinafter documents in such case are referred to as "cited documents"), and that regarding Documents 2 and 3, the circumstances fall under the case prescribed in item (iii) of that Article, i.e. "if the document has been prepared […] with regard to the legal relationships between the party that will offer the evidence and the person in possession of the document" (hereinafter this part of that item is referred to as the "second sentence of Article 220, item (iii) of the Code of Civil Procedure" and the documents in such case are referred to as "legal relationship documents"), respectively. Based on this finding, the court of prior instance determined as follows and held that the Petition should be dismissed.

In light of the facts that the public prosecutor of the Osaka Prefecture Public Prosecutors Office has the custody of the Original Documents and the authority to decide whether or not it is appropriate to make public such documents pursuant to the provisions of the proviso to Article 47 of the Code of Criminal Procedure, it should be said that the opponent does not have the authority to decide whether or not it is appropriate to make public the Documents, which are copies of the Original Documents. Therefore, the court cannot order the opponent to submit the Documents.

3. However, the abovementioned determination of the court of prior instance cannot be upheld for the following reasons.

(1)A. Article 47 of the Code of Criminal Procedure provides that "No document relating to the trial shall be made public prior to the commencement of the trial" in its main clause and that "provided, however, that this shall not apply when it is necessary for the public interest or other reasons, and when the court believes it to be appropriate" in its proviso. It should be construed that [i] the determination to find whether or not it is appropriate to make public the "document relating to the trial" pursuant to the proviso to that Article should be made by comprehensively taking into consideration various circumstances such as the purpose, the necessity and degree of necessity to make public such document and the risk of occurrence of adverse effects such as infringement of the fame and privacy of the suspect or related persons or undue influence on the investigation or criminal trial, based on the premise that making public the relevant "document relating to the trial" is prohibited in principle; and [ii] such determination is left to the reasonable discretion of the person who has the custody of the relevant "document relating to the trial."

B. In addition, even in the case where a document that is a “document relating to the trial” which, in principle, is prohibited from being made public pursuant to Article 47 of the Code of Civil Procedure, is requested by the parties to a civil litigation to be submitted, pursuant to the provisions of the second sentence of Article 220, item (iii) of the Code of Civil Procedure, the abovementioned discretionary determination to be made by the custodian of the relevant document should be respected. However, it is reasonable to consider that, if the relevant document is a legal relationship document and the refusal of submission of such document by the custodian thereof is found to go beyond the bounds of the custodian's discretionary power or constitute an abuse of such power in light of various circumstances such as the necessity and degree of necessity to examine the relevant document in a civil litigation and the risk of occurrence of adverse effects mentioned above due to disclosure of such document, the court may order submission of the relevant document (Judgment of the Third Petty Bench of May 25, 2004, 2003 (Kyo) 40, Minshu Vol. 58, No. 5, at 1135).

Moreover, even in the case where parties to a civil litigation request submission of a document that is a "document relating to the trial" mentioned above pursuant to the provisions of Article 220, item (i) of the Code of Civil Procedure, all of the interests which are to be protected as a result of non-disclosure of the relevant document itself cannot be found to have been automatically waived by citation of such document, and thus the same construction made above should be made. Accordingly, it is reasonable to consider that, if the relevant document is a cited document and the refusal of submission thereof by the custodian can be found to go beyond the bounds of the custodian's discretionary power or constitute an abuse of such power in light of the abovementioned various circumstances, the court may order submission of the document.

C. The original and copies of the documents prepared in relation to an investigation for a criminal case that were not submitted in the criminal trial are "documents relating to the trial," which are to be prohibited from being made public, in principle, pursuant to Article 47 of the Code of Criminal Procedure. No provision can be found in that Code or any other laws or regulations that stipulates to the effect that, when a person who has the custody of the copies is different from a person who has the custody of the original, only the person who has the custody of the original can determine whether or not it is appropriate to make public of such copies. When the relevant copies are in the possession of the prefecture in which the prefectural police which was in charge of the investigation is located, it can be said that the prefecture can determine whether or not it is appropriate to make public the copies pursuant to the proviso to that Article, based on the information in custody of the relevant police and by comprehensively taking into consideration the various circumstances described in A. above. Accordingly, in this case, it should be construed that the abovementioned determination is left to the reasonable discretion of the prefecture.

D. Based on the abovementioned findings, it is reasonable to consider that: in the case where copies of the documents prepared in relation to an investigation for a criminal case, that were, in themselves or the original thereof, not submitted in the criminal trial, are in the possession of the prefecture in which the prefectural police which was in charge of such investigation is located, and a petition for order of submission of documents has been filed alleging that the relevant copies are cited documents or legal relationship documents, even if the public prosecutor has the custody of the original, if the relevant copies are cited documents or legal relationship documents and the refusal of submission of such copies by the prefecture can be found to go beyond the bounds of the prefecture's discretionary power or constitute an abuse of such power in light of the various circumstances described in B. above, the court may order submission of such copies.

(2) Examining this case from the abovementioned standpoint, the following findings can be made: the Original Documents and the Documents which are their copies are documents prepared in relation to an investigation for the Injury Case that were not submitted in the criminal trial; the Documents are in the possession of the opponent in which the Osaka Prefectural Police which was in charge of the investigation for the Injury Case is located and the Petition has been filed with respect to them; thus, even if the Original Documents are in the custody of the public prosecutor of the Osaka Prefecture Public Prosecutors Office, if the determination of the opponent to refuse the submission of the Documents which are alleged to be cited documents or legal relationship documents is found to go beyond the bounds of the opponent's discretionary power or constitute an abuse of such power, the court may order submission of such documents.

4. The determination of the court of prior instance which is different from the abovementioned findings contains violation of laws and regulations which obviously affects the judicial decision. The appellant's arguments claiming this intent are well-grounded and the decision in prior instance should inevitably be quashed. Moreover, according to the statements made above, the decision of whether or not to order submission of the Documents should be made by examining whether or not the determination of the opponent to refuse such submission goes beyond the bounds of the opponent's discretionary power or constitutes an abuse of such power in light of various circumstance such as the necessity and degree of necessity to examine the relevant documents in the litigation on the merits of this case and the risk of occurrence of adverse effects by the disclosure thereof, for each document contained in the Documents. Therefore, this case is remanded to the court of prior instance to have these points further be examined.

Accordingly, the Court unanimously decides as set forth in the main text of the decision.

Justice YAMASAKI Toshimitsu

Justice OKABE Kiyoko

Justice TOKURA Saburo

Justice HAYASHI Keiichi

Justice MIYAZAKI Yuko