1990.11.08

1989 (A) 230

Keishu Vol. 44, No. 8

Decision concerning the case in which the Court ruled that the acts of the accused constitute the provision of food and drink performed "in connection with the election campaign" as referred to in Article 139 of the Public Offices Election Act

Case charged for intimidation of witnesses, harboring of criminals, and violation of the Public Offices Election Act

Decision of the First Petty Bench, dismissed

Takamatsu High Court, Judgment of February 8, 1989

The acts of the accused of providing a candidate for a public office with bottles of liquor with the motive to enable the candidate to use them in connection with his/her election campaign constitute the provision of food and drink performed "in connection with the election campaign" as referred to in Article 139 of the Public Offices Election Act.

Article 139 of the Public Offices Election Act



Public Offices Election Act

Article 139

It is prohibited for any person to provide food and drink (excluding hot water or tea and the refreshments usually provided along with such drink), irrespective of what they are called, in connection with an election campaign; provided, however, that this does not apply, in an election other than an election for members of the House of Councillors (to be elected by proportional representation), to boxed meals provided during the period of the election campaign of the election, as meals to be eaten at an election campaign office by volunteers engaged in the election campaign and workers employed for the election campaign (including boxed meals provided to be carried along by volunteers engaged in the election campaign and workers employed for the election campaign), within the extent of the boxed meal expenses specified by Cabinet Order, and within the number of boxed meals not exceeding the number calculated by multiplying the number of boxed meals for 15 persons including both volunteers and workers (45 meals) (if there is more than one election campaign office that is allowed to be established pursuant to the provisions of Article 131 (Number of Election Campaign Offices), the number of boxed meals for six persons (18 meals) is added for each of those additional offices) for both persons and workers in total, by the number of days in the period from the day on which the election date is publicized or announced until the day preceding the election date.

The final appeal is dismissed.

The reasons for final appeal stated by the defense counsel, B, including the argument of violation of the Constitution, are in effect arguments of mere violation of laws and regulations; the reasons for final appeal stated by the defense counsel, C, are arguments of erroneous finding of facts and mere violation of laws and regulations; the reasons for final appeal stated by the defense counsel, D, including the argument of violation of the Constitution, are in effect arguments of mere violation of laws and regulations and erroneous finding of facts; the reasons for final appeal stated by the defense counsel, E, are arguments of violation of the Constitution but are in effect arguments of mere violation of laws and regulations; and none of these reasons constitute any of the reasons for final appeal referred to in Article 405 of the Code of Criminal Procedure.

In consideration of the defense counsels' arguments, the Court determines, by its own authority, whether the crime of violation of Article 139 of the Public Offices Election Act can be found in this case. According to the judgment in prior instance and the findings in the judgment in first instance upheld by the former, the facts of the case are as follows. On the occasion of the general election for members of the Tokushima Prefectural Assembly held on April 12, 1987: (1) the accused provided [A], who was going to stand as a candidate in the election, with 48 bottles of brandy (0.7 liters per bottle) (worth about 576,000 yen in total at market value) around late March 1987 before [A] made notification of candidacy; and (2) the accused provided [A], who was standing as a candidate in the election, with ten bottles of refined sake (1.8 liters per bottle) (worth about 17,800 yen in total at market) on April 3, 1987, the day on which the election was announced. The accused actively supported the election campaign of [A] in the abovementioned election, and in addition to the abovementioned bottles of liquor, the accused provided [A] with 20 to 30 bottles of shochu (distilled spirits) around early March 1987, saying that these bottles of brandy and shochu could be served or distributed to electors, etc. In light of these facts, the accused can be found to have provided [A] with the abovementioned bottles of brandy and refined sake with the motive to enable [A] to use them in connection with his/her election campaign, and hence, the provision of the bottles of liquor by the accused should be deemed to have been performed "in connection with the election campaign" as referred to in Article 139 of the Public Offices Election Act. Consequently, the determination in the judgment in prior instance that the crime of violation of that Article can be found with regard to the abovementioned acts of the accused is justifiable.

Accordingly, in accordance with Article 414 and Article 386, paragraph (1), item (iii) of the Code of Criminal Procedure, the Court unanimously decides as set forth in the main text of the decision.

Justice OUCHI Tsuneo

Justice TSUNODA Reijiro

Justice YOTSUYA Iwao

Justice OHORI Seiichi

Justice HASHIMOTO Shirohei