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1988 (A) 589

1996.09.20
1988 (A) 589
Keishu Vol. 50, No. 8 at 571
Judgment concerning the case where the court, on the grounds that it cannot be definitely said that it is unavoidable to impose the death penalty or capital punishment on the accused, quashed the judgment of prior instance and the judgment of first instance and sentenced the accused to life imprisonment with work
Case charged for homicide, attempt of homicide, preparation for homicide, fraud, and attempt of fraud
Judgment of the Second Petty Bench, quashed and decided by the Supreme Court
Nagoya High Court, Judgment of March 11, 1988
With regard to the cases wherein the accused is charged for committing, in conspiracy with a high-ranking member of an organized crime group, the crimes of preparation for homicide, attempt of homicide, homicide, etc. with the intention of fraudulently obtaining insurance money, even if consideration is given to the factors concerned such as the nature of the cases, the seriousness of the crimes committed, and the importance of the role that the accused played---i.e. the series of crimes in question were attempted when the accused plotted schemes and approached the high-ranking member of the organized crime group with the schemes, and then these crimes were actually committed, and the accused did not only insure the victims but he himself committed the acts of preparation for homicide, and also fraudulently obtained insurance money or persistently demanded payment of insurance money from the insurance company---, it cannot be definitely said that it is unavoidable to impose the death penalty or capital punishment on the accused, if the following circumstances are taken into consideration: only one person was actually killed in the course of the series of crimes in question; the accused did not take part in committing the crimes of homicide and attempt of homicide, nor in deliberating on the method of killing; in the murder-for-insurance schemes other than the first scheme which only resulted in the preparation for homicide, particularly in the scheme which was judged to be the most serious crime and given the death penalty, the accused was rather tempted by the high-ranking member of the organized crime group, the mastermind of the crime; the accused has no criminal record, and has spent social life without committing any particular problematic behavior; the judgment of the death penalty on the high-ranking member of the organized crime group has become final and binding.
Article 11 and Article 199 of the Penal Code (prior to revision by Act No. 91 of 1995), Article 411, item (ii) of the Code of Criminal Procedure

Article 11 of the Penal Code (prior to revision by Act No. 91 of 1995)
(1) The death penalty shall be executed by hanging at a prison.
(2) A person who has been sentenced to the death penalty shall be detained in a prison until its execution.

Article 199 of the Penal Code (prior to revision by Act No. 91 of 1995)
A person who kills another shall be punished by the death penalty or imprisonment with work for life or for a definite term of not less than 3 years.

Article 411, item (ii) of the Code of Criminal Procedure
Even where none of the reasons prescribed in the items of Article 405 exist, the final appellate court may, by judgment, quash a judgment of prior instance when it finds that any of the following reasons exists and the judgment of prior instance would bring about a considerable injustice unless it is quashed:
(ii) The determination of the punishment is extremely inappropriate.
The judgment of prior instance and the judgment of first instance are quashed.
The accused shall be punished by life imprisonment with work.
All of the reasons for final appeal argued by the defense counsel, ONO Keiji, and the other nine defense counsels, including those alleging violations of the Constitution or violations of judicial precedents, are in effect assertions of unappealable violations of laws and regulations or errors in fact finding, and none of them can be regarded as a reason for final appeal permissible under Article 405 of the Code of Criminal Procedure.
After considering the arguments, however, we decided to make a determination by this court’s own authority. The judgment of first instance found the facts that the accused, in conspiracy with X and others, for the purpose of fraudulently obtaining insurance money, committed the crimes of preparation for homicide against A (Section I of the judgment of first instance), attempt of homicide against B (Section II-1 of the judgment of first instance), homicide against C (Section III-1 of the judgment of first instance), and attempt of fraud (Section III-2 of the judgment of first instance), and also committed single-handedly the crime of fraud (Section II-2 of the judgment of first instance). The court of prior instance determined that there was no error in these facts found by the judgment of first instance, and we can affirm such determination.
However, we cannot affirm the judgment of prior instance for its determination on sentencing, which maintained the death penalty imposed on the accused by the judgment of first instance, and therefore the judgment of prior instance and the judgment of first instance affirmed by the former should inevitably be quashed. The grounds for our determination are as follows.
I. According to the judgment of prior instance and the judgment of first instance affirmed by the former, the outline of the case is as follows. During the period from around April 1976 until March 1977, the accused, who was the real manager of Company D located in Nagoya City, in need of operating funds or other funds for the company, in conspiracy with X, a high-ranking member of an organized crime group who was the company’s creditor and its frequent visitor and who was pressed by the boss of the organized crime group for money, attempted to conclude with an insurance company an insurance contract with total insurance money of 300 million yen under the large-scale comprehensive keyman insurance program, designating Company D as the insurance policy holder and its members, etc. as the insured persons, and then kill the insured persons, thereby fraudulently obtaining a large amount of insurance money. After effecting the insurance policy for A, whom the accused had assigned to the nominal post of the representative director of Company D through the introduction of X, and for B, who was an employee of the company, also in conspiracy with X’s subordinates, one by one, the accused invited A to go out to Nagaragawa River or for an overnight trip to Enakyo Dam, with the intention of killing him by drowning, but only made preparation for homicide and did nothing more because A became suspicious (the crime of preparation for homicide, indicated in Section I of the judgment of first instance). Then, in conspiracy with the boss of the organized crime group and his three subordinates, one by one, the accused attempted to kill B via a scheme to cause a traffic accident, but failed and only caused him to suffer injuries such as a contusion to the head and fracture in the left clavicle, which required about 67 days for complete recovery (the crime of attempt of homicide, indicated in Section II-1 of the judgment of first instance). The accused obtained single-handedly some 6.3 million yen in total from the insurance company in the name of accident insurance money for B’s injuries (the crime of fraud, indicated in Section II-2 of the judgment of first instance). Also having effected the above-mentioned insurance policy for C (age 48), whom the accused had assigned to the nominal post of director of Company D through the introduction of X, in conspiracy with X and his four subordinates, one by one, took C by car to Hamamatsu City and strangled him to death by rope, thereby accomplishing the intention of killing him (the crime of homicide, indicated in Section III-1 of the judgment of first instance). The accused attempted to fraudulently obtain insurance money for C but failed because the insurance company became suspicious (the crime of attempt of fraud, indicated in Section III-2 of the judgment of first instance). (The accused is also charged with the three cases of fraud, indicated in Sections IV-1 to 3, for intentionally causing, in conspiracy with persons other than those mentioned above, car accidents resulting in property damage and other accidents, thereby fraudulently obtaining insurance money.)

II-1. The series of crimes in question which were committed with the intention of obtaining insurance money are premeditated and persisting, selfish, and extremely coldhearted and cruel, with no respect for human life. Although A escaped damage, B suffered considerably serious injuries, and C met a violent death and his surviving wife and child(ren) were greatly affected by his death but no measure has been taken to give them consolation.
2. The series of crimes in question were attempted when the accused plotted schemes and approached X with the schemes, and then these crimes were actually committed. The accused did not only insure the victims, but in the course of the crime of preparation for killing A, the accused himself committed the acts of preparation such as inviting A to go out to Nagaragawa River with the intention of killing him by drowning, and also carried out the crimes of fraud and attempt of fraud---i.e. fraudulently obtained insurance money of 6.3 million yen (B’s case) and persistently demanded payment of insurance money from the insurance company (C’s case). In view of these acts of the accused, it cannot be denied that the accused played a critical role. The accused, during the period from the investigation stage through to the trial in the final appellate instance, has totally denied his involvement in the series of crimes in question, and from the statements, behavior, etc. that he has shown during this period, we cannot find any signs of regret or remorse in him.

III-1. On the other hand, except for A’s case, in the case of attempted murder of B and the case of accomplished murder of C, the accused did not commit any criminal act nor participate in deliberating on the actual method of killing. X’s resolution to take part in the commission of the series of crimes in question does not seem to be unconnected with the facts that he had previously set a fire in a wedding hall as requested by its manager and obtained fire insurance money and that he had been pressed by the boss of his organized crime group for money, and we cannot definitely say that the approach by the accused was the only factor that made X make such resolution. We can find that if X had not undertaken the task of killing the insured persons, the accused would not have accomplished the criminal attempt. We can also find that X persistently searched around for A after A hid himself, having become aware of the intentions of the accused and X. In the case of murder of C, we can also find the following facts: X put a considerable amount of money into Company D so as to avoid its bankruptcy until he could obtain insurance money. What is more, being strongly pressed by the boss of his organized crime group to raise money and also urged by his subordinates in the organized crime group, who were eager for reward, to commit the murder, X conspired with the accused and insured C, whom he had introduced to the accused and assigned to the post of director of Company D, for a large amount of insurance money, and then while taking the leadership, X selected perpetrators from his subordinates, designed a murder scheme, and directed the perpetrators to carry out the scheme. A considerable part of the insurance money obtained was supposed to be paid as reward to the boss of X’s organized crime group and his subordinates who were involved in the murder case. In view of the course of this case as well as the fact that the accused cannot be deemed to have had a strong influence on X, it may be justifiable to consider that, except for the initial scheme to kill A, after this sloppy scheme fortunately failed until the murder of C was committed, the accused was tempted by X who actively proceeded with the murder-for-insurance scheme, rather than considering that the accused was pulling the strings behind the scenes as the mastermind behind X and his subordinates. In light of the circumstances reviewed above, as stated in the judgment in first instance, we must say that it is questionable to consider that “the accused was inseparably connected with X (as a pair of wheels) and served as the mastermind” from beginning to end in the series of murder schemes charged in this case, and to regard the accused’s leadership as being equal or equivalent to X’s leadership in particular in the case of murder of C, the most serious crime.
2. Furthermore, with regard to insurance money, the accused failed to accomplish the crime of fraudulently obtaining insurance money in C’s case because the insurance company became suspicious, and through the commission of the series of crimes in question, the accused obtained 6.3 million yen as insurance money in B’s case but failed to obtain the large amount of insurance money as initially planned (300 million yen). Although the accused was seriously responsible for having pulled the trigger and having made arrangements for the commission of the series of crimes in question, we can also point out the circumstances behind this such as that the manager of the insurance agency repeatedly induced the accused to buy such expensive insurance policies and helped him with contractual and other related affairs, and despite the fact that Company D was not so large and not in good shape, it was possible for the company to buy expensive insurance policies one after another. Furthermore, the accused has no criminal record, and we cannot find that he committed any problematic behavior in his social life except for the crimes in question, but rather we can find that he has earnestly engaged in managing the company.

IV-1. The death penalty is an ultimately strict punishment, and “under the existing legal system which maintains the death penalty, it is permissible to choose the death penalty if, by taking into consideration various factors concerned such as the nature of the crime committed, the motive, the mode of commission, particularly the persistence or cruelty of the means and method of killing employed, the seriousness of the result, particularly the number of persons killed, the sufferings of the surviving family, the social impact of the crime, the age of the offender, his/her criminal record, and the circumstances after the commission of the crime, it is found that the criminal responsibility of the offender is truly grave and capital punishment is unavoidable from the perspective of ensuring balance between the crime and punishment and of preventing the general public from committing the crime.” (See 1981 (A) No. 1505, judgment of the Second Petty Bench of the Supreme Court of July 8, 1983, Keishu Vol. 37, No. 6, at 609).
2. In light of the factors concerned such as the nature of the cases, the seriousness of the crimes committed, and the importance of the role that the accused played, it is not altogether impossible to understand, from the perspective of preventing the general public from committing the crime, the determination on sentencing by the court of prior instance that affirmed the judgment of first instance, which sentenced the accused to the death penalty. However, in this case, three persons were targeted for life but only one of them was actually killed. Furthermore, the following facts should also be taken into account: the accused did not take part in committing the crimes of homicide and attempt of homicide, nor in deliberating on the method of killing. In the murder-for-insurance schemes other than the first scheme which only resulted in the preparation for homicide, particularly in the scheme to kill C, which was judged to be the most serious crime and given the death penalty, the accused was rather tempted by X, the mastermind of the crime; the accused has no criminal record, and has spent social life without committing any particular problematic behavior; the judgment of the death penalty on X has become final and binding, and among the four persons who also took part in killing C, two persons were sentenced to life imprisonment with work, one person to imprisonment with work for 13 years, and the last one to imprisonment with work for ten years. In view of these facts, even if we take into consideration the importance of the role that the accused played, we cannot definitely say that it is unavoidable to impose the death penalty or capital punishment on the accused.

V. Reviewing all of these points mentioned above, we must say that in conclusion, the death penalty imposed on the accused is too heavy and extremely inappropriate, and we can find that the judgment of prior instance and the judgment of first instance affirmed by the former would bring about considerable injustice unless they were quashed.
Therefore, according to Article 411, item (ii) of the Code of Criminal Procedure, we have decided to quash the judgment of prior instance and the judgment of first instance, and according to the proviso to Article 413 of the Code, we make our own judgment on the charged cases.
When applying laws and regulations to the facts constituting the crimes that were found by the judgment of first instance, we should apply the Penal Code prior to the revision by Act No. 91 of 1995 to this case , pursuant to the main clause of Article 2, paragraph (1) of the Supplementary Provisions to the same Act. The acts committed by the accused fall under the respective provisions mentioned below: the acts constituting the crime of preparation for homicide indicated in Section I of the judgment of first instance collectively fall under Article 60, the main clause of Article 201, and Article 199 of the Penal Code prior to the revision; the acts constituting the crime of attempt of homicide indicated in Section II-1 of the judgment of first instance fall under Article 60, Article 203, and Article 199 of the Code; the acts constituting the crime of fraud indicated in Section II-2 of the judgment of first instance collectively fall under Article 246 of the Code; the acts constituting the crime of homicide indicated in Section III-1 of the judgment of first instance fall under Article 60 and Article 199 of the Code; the acts constituting the crime of attempt of fraud indicated in Section III-2 of the judgment of first instance collectively fall under Article 60, Article 250, and Article 246, paragraph (1) of the Code; and the acts constituting the crime of fraud indicated in Sections IV-1 to 3 of the judgment of first instance fall under Article 60 and Article 246, paragraph (1) of the Code. Among the punishments provided for the crimes in question, we choose imprisonment with work for a definite term with regard to the crime indicated in Section II-1 of the judgment of first instance and life imprisonment with work with regard to the crime indicated in Section III-1 of the judgment of first instance. Since a consolidated punishment shall be imposed on these crimes under the first sentence of Article 45 of the Code, we have decided to punish the accused only by life imprisonment and impose no punishment other than that, pursuant to Article 46, paragraph (2) of the Code. With regard to the court costs incurred for the proceedings in the first and second instances, we have decided not to have the accused bear these costs in accordance with the proviso to Article 181, paragraph (1) of the Code of Criminal Procedure. In conclusion, the judgment has been rendered in the form of the main text.
This judgment is based on the unanimous consent of the Justices.

Public Prosecutor MORIKAWA Takahiko was present at the trial.
Justice NEGISHI Shigeharu
Justice ONISHI Katsuya
Justice KAWAI Shinichi
Justice FUKUDA Hiroshi
(This translation is provisional and subject to revision.)
(* Translated by Judicial Research Foundation)