Judgments of the Supreme Court

Search Results

2019 (A) 506

Date of the judgment (decision)

2019.11.12

Case Number

2019 (A) 506

Reporter

Keishu Vol. 73, No. 5

Title

Decision concerning whether the act of a person who secretly records an image of a child, which falls under any of the items of Article 2, paragraph (3) of the Act on Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, and the Protection of Children, on a recording medium for electronic or magnetic records, and then has the relevant electronic or magnetic records recorded on another recording medium, thereby producing child pornography, constitutes the crime of producing child pornography under Article 7, paragraph (5) of the same Act.

Case name

Case charged for violation of the Act on Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, and the Protection of Children, and for possession of recording media containing obscene electronic or magnetic records for the purpose of distributing them for value

Result

Decision of the First Petty Bench, dismissed

Court of the Prior Instance

Nagoya High Court, Judgment of March 4, 2019

Summary of the judgment (decision)

The act of a person who secretly records an image of a child, which falls under any of the items of Article 2, paragraph (3) of the Act on Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, and the Protection of Children, on a recording medium for electronic or magnetic records, and then has the relevant electronic or magnetic records recorded on another recording medium, thereby producing child pornography, constitutes the crime of producing Child Pornography under Article 7, paragraph (5) of the same Act.

References

Article 2, paragraph (3) and Article 7, paragraphs (2) and (5) of the Act on Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, and the Protection of Children



Act on Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, and the Protection of Children



(Definitions)

Article 2, paragraph (3)

(3) The term "Child Pornography" as used in this Act means photographs, recording medium containing electronic or magnetic records (meaning a record used in computerized information processing which is created in electronic form, magnetic form, or any other form that cannot be perceived by the human senses; the same applies hereinafter) or any of the following medium which depicts the image of a Child, in a form recognizable by the sense of sight:

(i) any image of sexual intercourse or any conduct similar to sexual intercourse with a Child or between Children;

(ii) any image of a Child having the Genital Organs, etc. touched by another person or of a Child touching another person's Genital Organs, etc. which arouses or stimulates sexual desire; or

(iii) any image of a Child wholly or partially naked, in which sexual body parts of the Child (genital organs or the parts around them, buttocks or chest) are exhibited or emphasized and arouses or stimulates sexual desire.



(Possession and Provision of Child Pornography and Other Related Acts)

Article 7, paragraphs (2) and (5)

(2) Any person who provides Child Pornography is punished by imprisonment for not more than 3 years or a fine of not more than 3, 000, 000 yen. The same applies to any person who provides through telecommunication lines electronic or magnetic records falling under any of the items of paragraph 3 of Article 2 depicting the image of a Child in a form recognizable by the sense of sight or other records.

(5) Beyond the preceding two paragraphs, any person who produces Child Pornography by secretly depicting the pose of a Child falling under any of the items of paragraph 3 of Article 2, in photographs, recording medium containing electronic or magnetic records or any other is punished by the same penalty prescribed in paragraph 2 of this article.

Main text of the judgment (decision)

The final appeal is dismissed.

Reasons

Among the reasons for a final appeal stated by the defense counsel, OKUMURA Toru, the argument that Article 7, paragraph (5) of the Act on Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, and the Protection of Children (hereinafter referred to as the "Child Pornography Act") violates Article 21, paragraph (1) of the Constitution lacks a premise because Article 7, paragraph (5) of the Child Pornography Act cannot be regarded as providing for excessively broad regulation on freedom of expression; and the rest, including the argument of violation of the Constitution, are in effect arguments of mere violation of laws and regulations or inappropriate sentencing. None of them constitute any of the reasons for a final appeal as referred to in Article 405 of the Code of Criminal Procedure.

It is reasonable to construe that the act of a person who secretly records an image of a child, which falls under any of the items of Article 2, paragraph (3) of the Child Pornography Act, on a recording medium for electronic or magnetic records, and then has the relevant electronic or magnetic records recorded on another recording medium, thereby producing child pornography, constitutes the crime of producing child pornography under Article 7, paragraph (5) of the same Act. The determination of the court of prior instance to the same effect as above is justifiable and can be accepted.

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.

Presiding Judge

Justice KIZAWA Katsuyuki

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice YAMAGUCHI Atsushi

Justice MIYAMA Takuya

(This translation is provisional and subject to revision.)