1973.04.04

1970 (A) 1310

Judgment upon case of constitutionality of Article 200 of the PENAL CODE providing killing an Ascendant

The Grand Bench

Tokyo High Court on May 12, 1970

The judgment of the court below is reversed.
The accused shall be put into imprisonment at forced labor for two years and six months.
The enforcement of this sentence shall be suspended for three years form the date this judgment becomes final.

With regard to the alleged violation of the Constitution in the purport of appeal by defence counsel Daihachi Onuki:

The contention is that the judgment below which applied Article 200 of the Penal Code to the conduct of the accused misconstrued the Constitution in that the said provision is repugnant to Article 14 of the Constitution and is invalid.

In examining this question, it has already been set forth by the en banc decision of this Court ((E) No. 1472 of 1962, on May 27, 1964, Civil Cases Vol. 18, No. 4, p. 67t5) that Paragraph 1, Article 14 of the Constitution guarantees the equality under the law, that the items listed in the latter part of the paragraph are not restrictive but are explanatory, and that this demand of equality should be understood to prohibit discrimination not based upon reasonable grounds according to the nature of the matter. And Article 200 of the Penal Code, providing that a person who kills one of his or her own or his or her spouse's lineal ascendants shall be punished with death or with imprisonment at forced labor for life, is one of the provisions of so-called aggravation by status which provide heavier punishment to the same type of conduct with an ordinary homicide for the existence of special relationship between a perpetrator and a victim (Supreme Court (A) 3263 of 1955, on May 24, 1956. Judgment of the first Division. Criminal Cases Vol. 10, No. 5, p. 734); thus to provide Article 200 of the Penal Code beside Article 199 should be regarded as a discrimination in the meaning of Paragraph 1, Article 14 of the Constitution. Then a question arises whether Article 200 of the Penal Code violates the said clause of the Constitution; and it is to be settled upon the determination of whether the said discrimination has reasonable grounds or not.

This Court, faced with the contentions that Article 200 of the Penal Code is repugnant to Article 13, Paragraph 1, Article 14, Paragraph 2, Article 24 and other clauses of the Constitution, has been rejecting them since October 1950. However, the en banc decision which pronounced for the first time that Article 200 of the Penal Code did not violate Article 14 of the Constitution ((Q) No. 2105 of 1947 Oct. 25, 1950. Criminal Cases Vol. 4, No. 10, p. 2126), commented in parentheses that the punishment provided by the provision seemed too severe, moreover there were some cases as well in which the Court rejected the application of the provision on another ground without referring to its constitutionality when strong extenuating circumstances seemed to have existed. (Supreme Court decision (A) No. 1126 of 1953, Judgment of the Grand Bench on February 20, 1957. Criminal Cases Vol. 11, No. 2, p. 824. (A) No. 2486 of 1961, Judgment of the Third Division on December 24, 1963. Criminal Cases Vol. 17, No. 12, p. 2537) While the present Penal Code was enacted in 1907 under the old Constitution with the sanction of the 23rd Session of the Imperial Diet, an amendment or an abolition of Article 200 of the Penal Code was not in issue even when the partial amendment of the Code was made for compliance with the spirit of the New Constitution in 1947 at the First Session of the Diet under the Constitution and since then no legislative action concerning the Article 200 has been undertaken until today. There seemed to be an idea, as an ideological background of the enactment of the provision, of imposing heavier punishment for killing an ascendant, which stemmed from the Chinese classic law and culminated in our Ritsuryo-system and the legal system of the Tokugawa Shogunate. Looking into the fact that the provision includes the murdering his or her spouse's lineal ascendants, the provision can be said to have a deep relation especially with the family system, which was abolished by the Constitution, because of its inclusion, as a content of crime, of murdering his or her spouse's lineal ascendants.

Furthermore, observing legislative examples abroad, beside the Chinese ancient law, a thought of aggravation to patri- or matri-cide can be seen in old Roman law and others, but such an idea has been gradually disappearing in modern ages, and an aggravation clause to killing an ascendant has not been existed from the beginning in not a few countries. And even these countries which once had such aggravation provisions have abolished them recently or are now mitigating their severity, and on the other hand considerable number of examples can be seen which provide aggravation of penalty for a criminal conduct of killing one of near relatives including homicides of a descendant and a spouse instead of aggravating penalty to killing an ascendant alone. "The Draft for Revised Penal Code" issued recently in our country does not provide aggravation of penalty for killing an ascendant.

In the light of these facts, this Court has decided to re-examine the alleged constitutionality of Article 200 of the Penal Code; and as for the problem of whether the legislative purpose of the clause is reasonable in the sense of Paragraph 1, Article 14 of the Constitution, it is considered as follows:

The legislative purpose of Article 200 of the Penal Code seems that killing an ascendant by a descendant or his or her spouse generally deserves a high social and moral denunciation and is to be strictly prohibited by punishing more severely than an ordinary homicide. Generally speaking, the relatives put their basis upon marriage and blood, and are bound together by spontaneous respect and deep affections and there naturally exists a certain order among them depending on the difference between young and old and on the apportionment of the responsibilities among them. Usually, not only descendants are grown up to adults by such lineal ascendants as parents and grandparents, but also lineal ascendants owe legal and moral responsibilities for the conduct of descendants in social life. Therefore, it must be admitted that respect and gratitude to ascendants are basic morals in a social life, and that the maintenance of such spontaneous affections and universal ethics deserves to be protected by criminal law. As killing one's own or spouse's lineal ascendant destroys this connection and is repugnant to the basic principle of human ethics, unethical nature of a person who dares to commit such an act especially deserves strong denunciation.

Taking these into consideration, to regard killing an ascendant generally deserves a higher social and moral denunciation than an ordinary homicide and to reflect it upon punishment are not immediately unreasonable. In other words, it is admissible to emphasize in a concrete case the fact that the victim is an ascendant as one of the circumstances under which heavier sentence should be given, and proceeding a step further, it cannot be immediately concluded to have no reasonable ground and to be repugnant to Paragraph 1, Article 14 of the Constitution, to categorize this type of murder and to provide an aggravating punishment by statute.

Although creating a special crime of killing an ascendant beside an ordinary homicide and providing an aggravating penalty for it is not necessarily unconstitutional in itself, the reasonableness of such a provision may still be denied because of the degree of the aggravation. In other words, when we can find no grounds of justification for the aggravation being so extreme as to lose the balance as a measure to achieve the said legislative purpose, the discrimination is unacceptably unreasonable and the provision is invalid in violation of Paragraph 1, Article 14 of the Constitution.

When we compare the kinds of penalties provided in Article 200 of the Penal Code which provides death penalty or life term imprisonment at forced labor with those for an ordinary homicide of Article 199 ranging from death to not less than three years imprisonment at forced labor, it is quite clear that the selection in sentencing is limited only to the scope of extremely heavy punishments. Of course, the present Penal Code has some provisions with which provided punishments can be reduced, but even when reductions are made twice--the maximum limit under the present Code--the minimum sentence to be imposed to the guilty descendant who killed his ascendant cannot be less than three years and six months imprisonment at forced labor, and as the result whatever extenuating circumstances may have existed, a conditional condemnation is not granted in striking contrast with an accused of an ordinary homicide.

Of course, a descendant who killed an unblamable ascendant without due cause should be punished severely without any mercy, but even in such a case it is not impossible to achieve the aim by applying the provision for an ordinary homicide. On the other hand, in cases where an ascendant committed an infernal deed and after all compelled the accused to kill an ascendant himself, the conduct of the accused does not deserve such a serious denunciation as should be faced with the severe punishment provided in the present Article 200 of the Penal Code.

Observing the reality of the sentencing, provided punishment itself used to be imposed in quite few cases unless they are accompanied with other crimes. And reduction of punishment is made in most of the cases. Furthermore reduction is made twice in not a few cases, and it is not rare that three years and six months imprisonment at forced labor, the minimum of thus reduced punishment is sentenced. These facts show that unethical nature of a descendant is not always strong on one hand, and permit an inference on the other hand that the provided punishment for killing an ascendant is extremely too severe to apply for usual killing an ascendant cases.

From this inquiry, the provided punishments for killing an ascendant should be held too severe in that it is limited only to death or life term imprisonment--the heaviest with the exception of the punishment for inducement of foreign aggression--and it cannot be fully explained by the above-mentioned legislative purpose, namely, the esteem and the maintenance of such spontaneous affections or universal ethics as respect and gratitude toward ascendants; thus it cannot be justified at all as a discrimination based upon reasonable grounds.

From mentioned above, it should be concluded that Article 200 of the Penal Code providing only punishment of death or life term imprisonment, goes far beyond the legislative purpose, and makes an unreasonable discrimination in comparison with the provided punishments of Article 199 for an ordinary homicide, and thus is invalid in violation of Paragraph 1, Article 14 of the Constitution; therefore, there is no other way but to apply Article 199 of the Penal Code to an accused killing an ascendant. The precedents of this Court repugnant to this holding should be altered.

Then, the judgment of the court below, which applied Article 200 of the Penal Code to the conduct of the accused upon a different view that it was not invalid, is nothing but misinterpreting the Article of the Constitution, and since the error is apparently harmful to the judgment, the contention of the defence counsel has in effect its reasons.

With regard to the other grounds of appeal:

Since the other contention merely alleges a violation of law or an error in fact-finding, they do not establish lawful grounds of appeal.

Therefore, pursuant to the latter part of Item 1, Article 405, and the main part of Paragraph 1, Article 410 of the Code of Criminal Procedure, the judgment below is reversed and we ourselves render a judgment according to Article 413 of the said Code.

In applying law to the facts found by the court below, we conclude that the conduct of the accused falls under Article 199 of the Penal Code, and we select a limited term imprisonment among punishments provided in the Article. And as it was committed under weak-mindedness, the reduction of the punishment is made according to Paragraph 2, Article 39, Item 3, Article 68 of the said Code. Within the reduced term the accused shall be put into imprisonment at forced labor for two and a half years. And the enforcement of the sentence shall be suspended for three years pursuant to Item 1, Paragraph 1, Article 25 of the said Code in taking into consideration the following items of facts; that the accused had no criminal record prior to this case in spite of living in such terrible circumstances as being suffered an inhuman conduct by her father from her childhood and thereafter was forced to have a life like his wife for more than ten years and had several children during this period, that the original cause of her crime was her father's conduct hating an arrival of chance of her normal marriage and trying to keep the hideous relation by placing her under his control, and that she confronting with her father's said conduct, was in an utmost anguish and worry for her father's menace and cruelty for more than ten days, that she at last committed the crime in order to escape from this terrible circumstances by being provoked by his unreasonable violent words, that immediately after the commitment of the crime she denounced herself before official detection, and that the possibility of further commitment of murder is scarce. And the cost of the proceeding in the court of first instance and the court below shall not be imposed by applying the proviso of Paragraph 1, Article 181 of the Code of Criminal Procedure.

The judgment is so ordered.

This judgment is rendered by unanimous opinion of all the justices of the Court except Justice Takeso Shimoda writing a dissenting opinion. Justice Masao Okahara writes a supplementary opinion. Justices Jiro Tanaka, Kazuo Shimomura, Kotaro Irokawa and Kenichiro Osumi write their own separate opinions. Justices Nobuo Ogawa and Yoshikatsu Sakamoto join in Justice Tanaka's opinion.



The supplementary opinion of Justice Masao Okahara is as follows:

1. The majority opinion says that Article 200 of the Penal Code cannot be held unconstitutional merely because it provides special crime of killing an ascendant beside an ordinary homicide and aggravates the penalty and that it violates Paragraph 1, Article 14 of the Constitution because the punishment provided in it is too severe; however, since it is attended with the separate opinions that Article 200 of the Penal Code providing a special crime of killing an ascendant is in itself unconstitutional, and with the dissenting opinion that Article 200 of the Penal Code is not repugnant to Paragraph 1, Article 14 of the Constitution either in providing special crime of killing an ascendant or in the degree of its aggravated punishment, I, as one consisting of the majority opinion, would like to express my understanding in relation with these opinions.

2. The separate opinions, in short, hold that Article 200 of the Penal Code cannot be regarded as providing a reasonable discrimination admissible under Paragraph 1, Article 14 of the Constitution, in that (1) it especially takes up only the family relation of descendants toward ascendants among those of parents and children, husband and wife, brothers and sisters and so on, and in that (2) its purpose is to maintain the particular morality based upon the status system clearly repugnant to the basic principle of the Japanese Constitution.

However, first, as regards point (1), what the Court should do in this case is not to inquire what is the most reasonable and appropriate legislation to the homicide among relatives, but to decide the constitutional question involved in this concrete case--the validity of Article 200 of the present Penal Code. The majority opinion, taking this as a doubtless premise, refrains from referring to the appropriateness of legislative policy and restrains itself to examine the constitutionality of the provision. And it concludes that the discrimination created by Article 200 can not be justified. Therefore it is not pertinent in this case where the validity of the positive law is in question to count the point (1) as one of the reasons for supporting the determination of the unconstitutionality of the provision.

Secondly, I agree with the reasons developed under point (2) and I do not hesitate to accept that Article 200 of the Penal Code bears a character of keeping a family ethics and social orders, based upon an idea which attaches so much importance to authority and subordination relationship between ascendants and descendants like in the past "family" system. However, in my opinion, the constitutional difficulty of Article 200 of the Penal Code appears not in providing a special type of crime of killing an ascendant and aggravating punishment but in the fact that the provided punishment is limited only to extremely severe ones; and the expression of the majority opinion that "it cannot be fully explained by the esteem and the maintenance of such spontaneous affections or universal ethics as respect and gratitude toward ascendants" implies this idea on the same standpoint as mine. In other words, although I am not unwilling to give my approval to the opinions stated under (2), I think that it should be regarded not as a basis of the unconstitutionality of providing a crime of killing an ascendant itself, but as a basis of the unreasonableness of the provided punishment.

3. While the dissenting opinion mainly differs from the majority opinion as for the issue of whether the provided punishment of Article 200 of the Penal Code should be regarded too severe or not, I would like to spend a word concerning its reference about the legislative history of the provision and the methodology of the judicial review.

The legislative history stated in it is plainly correct as a historical fact. And I agree with its statement that the validity of those provisions enacted under the old Constitution and have not been abolished until today should be understood to have been impliedly affirmed by the legislature, since the legislative power belongs to the Diet, the highest organ of state power (Article 41 of the Constitution), and since the members of the Diet have the obligation to respect and uphold the Constitution (Article 99 of the Constitution), and the Diet ought to provide a constitutionally admissible law. And although the Court has power to decide its constitutionality when the validity of a statute is questioned in a concrete case, it is certainly beyond this power to declare it unconstitutional depending solely on the determination that its legislative policy is inappropriate. Moreover, in examining the question of whether the alleged invalidity of a statute depends solely on the appropriateness of its legislative policy, it is desirable for the Court, as a way of performing the function of judicial review, to respect the aforesaid judgment by the legislature concerning the validity of a statute.

But depending upon the matter in question, there are cases where the content of a statute is so problematical in the light of the legislative history, the reality of the practices, the social common-sense, the tendency of foreign legislations and other factors as to cause an apprehensions that the validity of the statute dose not solely depend on the appropriateness of its legislative policy. Furthermore, in relation to such a principal law so closely related with value judgment of the legal norm in a social life like penal code, a doubt may arise that a provision originally regarded to have no problem becomes to bear a constitutional infirmity with the progress of the times and vicissitude of social conditions. In such a case, the court is not allowed to cling to the manner of self-restraint any longer and it has a responsibility to examine the validity of the statute by exercising the function of judicial review endowed by the Constitution. And when the Court reach the conclusion that the unreasonableness of the statute exceeds the permissible limit of a certain clause of the Constitution, and therefore the scope of the legislative discretion has been deviated, the Court has to declare the statute to be unconstitutional.

The attitude of the majority opinion of not stepping into the substantial constitutional question until after its statement that reexamination of the validity of Article 200 of the Penal Code is to be necessary in the light of the precedents of this Court, legislative history of the provision, legislative examples abroad and the tendency of recent legislations, is nothing but to show that the careful examination was undertaken for excluding the arbitrariness. Moreover, the expression of the majority opinion that the provided punishment "cannot be fully explained" is simply to avoid the complexity of explanation of the reasons why it cannot be explained and therefore the expression is quite natural for its nature, and what is implied by it is as above mentioned. Thus the decision of unconstitutionality should be regarded to be based on enough grounds and not to be made thoughtlessly.

Although I can understand the dissenting opinion itself reaching the different conclusion upon a different standpoint, I cannot accept the criticism against the majority opinion made by it which states that the majority hastily reached the conclusion of unconstitutionality.



The opinion of Justice Jiro Tanaka is as follows:

Although I agree with the conclusion of this decision which reverses the judgment below by holding Article 200 of the Penal Code for killing an ascendant void and unconstitutional, and which imposes the accused an imprisonment at forced labor for two and a half years pursuant to Article 199 of the Code for an ordinary homicide and suspends the enforcement of the sentence for three years, I cannot assent to the reasons through which it held Article 200 of the Penal Code void and unconstitutional. The majority opinion says, in short, that Article 200 of the Penal Code cannot be immediately held unconstitutional simply for providing a special crime of killing an ascendant and aggravating its punishment, but it violates Paragraph 1, Article 14 of the Constitution because of the extreme severity of the degree of aggravation. To the contrary, in my opinion, providing killing an ascendant beside an ordinary homicide and discriminating thereupon itself should be regarded to be repugnant to Paragraph 1, Article 14 of the Constitution of the equality under law. Therefore, from my point of view, there arises as one of the differences from the majority opinion, although irrelevant to this case, that not only Article 200 of the Penal Code, but also such provisions as Paragraph 2, Article 205 of the Code for bodily injury resulting in death of an ascendant, Paragraph 2, Article 218 of the Code for abandonment of an ascendant, Paragraph 2, Article 220 of the Code for arrest and imprisonment of an ascendant should be regarded void and unconstitutional since they provide discriminations simply because the victims are ascendants. But in this case I will restrict myself in stating reasons why Article 200 of the Penal Code for killing an ascendant should be held void and unconstitutional. The reasons are as follows:

1. The clause that "every person of this country should be respected as an individual" provided at the beginning of Article 13 of the Japanese Constitution declares a fundamental idea of regarding the respect of individual dignity as an origin of all the values, and that the guarantee of the equality of every individual is the fundamental principle and the basis of democracy; and the provision of Paragraph 1, Article 14 of the Constitution that "every people of this country is equal under law and shall not be discriminated in political, economic or social relations because of race, creed, sex, social status or family origin" shows the same idea upon the same principle. Although this provision lists race, creed, sex, and so on, these items are mere illustrations of important examples as accepted by the majority opinion. Therefore every unreasonable discrimination ascertained in the light of the fundamental principle of democracy to respect and to guarantee individual dignity and individual values, should be considered invalid as violating of the spirit of this provision without regard to whether it falls under one of these items.

The reason why all the constitution of the modernized nations demand respect and guarantee of the equality under the law is to break down the authority and subordination relationship under feudalism, to recover human dignity and equality, and to expect establishing a peaceful society and nation by cooperation of every individual in an equal position upon the realization of individual dignity. The spirit of the Japanese Constitution should be deemed to rest upon this point.

Of course, I do not think that any kind of discrimination is absolutely inadmissible. It has been already recognized by many decisions of the Supreme Court that discriminations based upon reasonable grounds may be admitted as constitutional. The problem is what is the reasonable discrimination in these cases, and what is the standard with which "reasonable discriminations" and "unreasonable discriminations" can be distinguished. With regard to this, as mentioned above, considering the fundamental principle of democracy forming the basis of the Constitution, I think that discriminations are admissible so far as they are not repugnant to the basic spirit of the Constitution respecting dignity and equality of individual. Therefore, in this case, it is necessary to examine whether making a special provision for killing an ascendant in discrimination with an ordinary homicide can be said as "reasonable discrimination" in the light of the said standard.

2. The majority opinion says that (1) making a special provision for killing an ascendant besides an ordinary homicide does not violate Paragraph 1, Article 14 of the Constitution since it is based upon reasonable grounds, but (2) it violates Paragraph 1, Article 14 of the Constitution upon the reason that the provided punishment is too severe. However whether the opinion (1) can be justified is quite doubtful. Moreover supposing the opinion (1) is admitted, whether the opinion (2) is adequately persuasive is also questionable to me. I will state my doubts one by one.

(1) Not only a feudalistic idea of aggravating punishment for killing an ascendant can be seen in the ideological background of the enactment of the provision, but it appears as well that the provision has a deep relation with "family system" so highly emphasized under the old Constitution in our country, for it regulates killing of spouse's lineal ascendant equally with that of one's own. But the Japanese Constitution has abolished old remnants of feudalism and lays down a fundamental principle of establishing individual dignity and substantial equality of both sexes in a family life (cf. Article 24 of the Constitution), and the "family", the "head of house" and the "succession to the headship of a house" were abolished by the amendment of the Civil Code to realize the said principle. In the light of this principle of the Constitution, to make a special provision for killing an ascendant on the grounds that ascendants should deserve special protection solely because they are ascendants and that killing an ascendant by a descendant or his or her spouse is so unethical as to deserve especially strong denunciation, should be regarded to have its basis upon a kind of status morality or upon the ethical view of the old family system above mentioned. Therefore there arises a strong suspicion that it might be repugnant to the fundamental idea of democracy based upon dignity and equality of individual. The tendencies in foreign countries that an aggravation provision for killing an ascendant has been gradually disappearing or that the provisions are now abolished or mitigated even in these countries which once owned them, can be estimated as conforming with the penetration and completion of the fundamental idea of democracy. It is nothing but to follow this suit that the recent Draft for the Revised Penal Code of our country does not include such a provision.

I do not deny that it is the fundamental morals to be obeyed by children to respect their parents, since they should be bound with spontaneous and deep affections. Rather I do expect that this spontaneous and human affections (that is not a "reward" to a received "favor" such as mentioned in the majority opinion) which naturally flows out of human feeling should be strengthened all the more. But that is a morals which should be voluntarily observed by their own realization upon a principle of individual dignity and equality, and which should never be forced by law or compelled to be observed by providing especially severe punishments. I can never accept an idea that a morality of "Filial piety" will be or will not be observed by the existence or non-existence of the provision for killing an ascendant. For the reason as above mentioned, the provision of killing an ascendant, going beyond the scope of wiseness or unwiseness of the legislative policy, should be held to be repugnant to the fundamental principle of democracy as the basis of the Constitution, and directly to be repugnant to Paragraph 1, Article 14 of the Constitution.

(2) As stated above, according to my opinion, to make a provision for killing an ascendant in discrimination with an ordinary homicide violates Paragraph 1, Article 14 of the Constitution. But supposing that I should take up the position that it does not violate the said provision for itself as mentioned in the majority opinion, the idea that the problem of what kind of punishments for killing an ascendant is suitable is a question of legislative policy seems rather to be more logical and persuasive.

The majority opinion saying on one hand, "to regard killing an ascendant generally deserving of a higher social and moral denunciation than an ordinary homicide and to reflect it upon punishment are not immediately unreasonable" concluded on the other that "the provided punishment for killing an ascendant should be held too severe in that it is limited only to death or life term imprisonment (paragraph omitted) and it cannot be fully explained by the above-mentioned legislative purpose, namely, the esteem and the maintenance of such spontaneous respect and gratitude toward ascendants; thus it cannot be justified at all as a discrimination based upon reasonable grounds". But from the position that killing an ascendant should deserve more serious and moral denunciation than an ordinary homicide and that reflecting it upon punishment is not unreasonable, it ensues that to provide a more severe punishment to the crime of killing an ascendant is a necessary conclusion. Nevertheless to hold immediately that the present provided punishment, which can be reduced up to three and a half years imprisonment, is so severe as repugnant to the Constitution is thereupon logically inconsistent. Moreover, it is nothing but a question of the appropriateness of the legislative policy to examine the balance between the provided punishment and the nature of the crime. And the question of whether the provided punishment of Article 200 of the Penal Code is so severe as to nullify its validity should be examined not from the aspect of equality under the law guaranteed by Paragraph 1, Article 14 of the Constitution but from the viewpoint of whether it falls under the definition of cruel and unusual punishments of Article 36 of the Constitution.

3. It cannot be imagined otherwise but due to the lack of the correct understanding of the fundamental principle and of Paragraph 1, Article 14 of the Constitution to have retained the provision related with "Filial piety" while those related with "loyalty" were abolished by the amendment of the Penal Code held at the same time when the Japanese Constitution was enacted. In addition, I cannot appreciate at all the en banc decision of the Supreme Court on August 11, 1950 (Criminal Cases Vol. 4, No. 10, p. 2037) holding that Paragraph 2, Article 205 of the Penal Code for death of an ascendant resulting from bodily injury does not violate Article 14 of the Constitution (the holding may be equally applied to the validity of Article 200 of the Penal Code). By the way, to observe the reality in practice of how Article 200 of the Penal Code has been applied under the said leading decision of the Supreme Court may be of some help to reconsider the raison d'etre of the provision.

Looking at the reality of the sentences imposed in cases of killing an ascendant by the courts of the first instance, statistics show among total 621 cases of killing an ascendant decided within 18 years from 1952 to 1969, in only five cases (0.18%) death penalty was imposed, in 61 cases (9.82%) life term imprisonment at forced labor was imposed and in most of the cases imprisonment at forced labor not more than 15 years was imposed through reductions, and especially the number of cases where imprisonment at forced labor not more than 5 years was imposed reaches as high as 164 (26.4%)--the highest of all. These figures show, in spite of the reasoning of the majority opinion that killing an ascendant generally deserves more serious social and moral denunciation compared with an ordinary homicide, that many of them were cases in which the accused should not be severely denounced on the reason that the crime was committed under forcible circumstances, although such extremes as this case were not common. Moreover, the reality is that the existence of Article 200 of the Penal Code imposed such difficulties to the judges in selecting appropriate sentence as to compel them to worry about it and sometimes as to force them to conclude that the provision is unconstitutional and void. Even the Supreme Court itself, in its en banc decision on February 20, 1957 (Criminal Cases Vol. 11, No. 2, p. 824) could not help from reversing the judgment below which applied Article 200 of the Penal Code to a widow who, being suffered from their cruelties, intended to kill parents of her deceased husband and others and from denying the application of the provision by holding that "lineal ascendants" of her spouse means lineal ascendants of her alive spouse. Although the conclusion of this case should be supported as appropriate, the correctness of the interpretation is questionable, and, in my opinion, the Court should have basically examined the validity of Article 200 of the Penal Code itself in its process for reaching the conclusion.

Indeed there may be such a vicious and cruel case, among cases of killing an ascendant, that cannot be forgiven by heaven and earth, and that should be faced with the severest punishment. However, this does not provide any ground or reason to a special treatment for killing an ascendant, rather, since the same can be seen so often with an ordinary homicide, the provided punishment for it is enough even for the accused killing his ascendant. And in fact the Draft for the Revised Penal Code has abolished a provision for killing an ascendant on the same idea.

4. While I guess that the majority opinion implying the constitutionality of providing a reasonable aggravation for killing an ascendant deeply fears social influences of declaring Article 200 of the Penal Code to be unconstitutional, I do not believe that to hold the provision for killing an ascendant unconstitutional and void would be understood as despising this basic morality or weakening the denunciation to this immorality, since homicide deserves the most social and moral denunciation regardless of killing an ascendant or an ordinary homicide. I wonder if the attitude shown in the majority opinion is based upon a groundless fear resulted from neglecting the common sense or moral sense of the people.

5. Finally I would like to spend a word regarding the dissenting opinion by Justice Shimoda.

I do not repeat why I cannot agree both to the conclusion and the reasoning of the dissenting opinion by Justice Shimoda since it is quite clear from what I have mentioned already; here I would like to express my thought in comparison with his opinion about judicial power to examine the constitutional validity of a statute.

The opinion of Justice Shimoda as for this point is based upon an idea that it "will meet the spirit of check and balance--the fundamental principle of the Constitution" for the Court to respect the positive law enacted by the legislature representing the majority opinion of the people, and that easily to intervene into the problem of the constitutional validity of a statute will possibly "violates the principle of judicial self-restraint". And he states, deducing from the fact that Article 200 of the Penal Code was specifically excluded from the partial amendment of the Penal Code in 1947, that the legislature at that time determined the provision to be in conformity with the Constitution, and that the fact that no positive legislative movement has been made until today despite of various arguments which have been made on the provision shows that the legislature approves even today not only its constitutionality but its existence from the standpoint of legislative policy as well. And he continues that "taking this history into consideration, demand of judicial self-restraint and of respect to the legislative decision is especially important in the process of examining the constitutional validity of Article 200 of the Penal Code", and further he mentions that "it is appropriate to trust upon the legislative discretion the decision of what kind of provision for killing an ascendant should be enacted or abolished in what stage in future".

Of course I admit that there are not a few cases where the legislature has a considerable scope of discretion depending upon the nature of the question and the court should respect the exercise of its discretion and cannot interfere with it since it remains within the purview of legislative policy. And also I agree with Justice Shimoda's opinion that the court should not easily step into the question of the appropriateness of legislative policy. In addition, it is what I have maintained and the basic viewpoint of the precedents of this Court that the provision enacted by the legislature should be interpreted according to the spirit of the Constitution to conform therewith as much as possible, and that we should not easily hold a statute unconstitutional by adhering to the mere letters of it.

However, the opinion of Justice Shimoda unreasonably extends the scope of legislative discretion by blandishing "the spirit of check and balance--the fundamental principle of the Constitution" and "the principle of judicial self-restraint", and suggests as if no judicial intervention is permissible once the legislature has judged a statute to be constitutional. Although his real intention is not quite clear, I cannot agree at all with what he states concerning this case in question.

It may not happen usually and should not happen at all in our country that the legislature (the same can be said with the executive) consciously dare to do anything unconstitutional except it acts revolutionary like the enactment of unconstitutional legislations under the Nazi-Regime. But in reality there are cases where the constitutionality of a statute can be objectively questioned even when subjectively judged constitutional by the legislature, and the primary purpose of judicial review of the validity of a statute is to entrust the inquiry and the judgment in such a case to the Court. Therefore, it goes without saying under the present Constitution which expressly provides judicial review of the validity of a statute that the fact that the legislature has judged the constitutional validity of statutes cannot be a basis to deny and to reject the exercise of the judicial review by the Court. Especially in a period like today, where a great diversity of opinions can be seen regarding how to compromise the demands to respect and maintain fundamental human rights and those to achieve public welfare depending on the differences of emphasis and the conflict of interests based upon confrontation of ideas about social and ideological values, a statute cannot be always held constitutional simply because it is enacted by the majority of the Diet. Of course, while a "presumption of constitutionality" may be given to a statute at least, the question of whether it is really constitutional should be decided through an inquiry and a judgment of the Court. Therefore an attitude to deny or extremely restrict the exercise of the power of judicial review by emphasizing only the principle of judicial self-restraint is tantamount to yielding the most important power endowed to the Court by misinterpreting the true meaning of check and balance prescribed by our Constitution, and is not agreeable at all.

Justices Nobuo Ogawa and Yoshikatsu Sakamoto join in the said opinion of Justice Jiro Tanaka.



The opinion of Justice Kazuo Shimomura is as follows:

Although I agree to the conclusion of this decision which reverses the judgment below and imposes the accused an imprisonment at forced labor for two years and six months with the suspension of the enforcement of the sentence for three years by applying Article 199 of the Penal Code, I cannot assent to the reasons through which it reverses the judgment below. I would like to state my reasons.

The Constitution in Paragraph 1, Article 14 declares the guarantee of the equal treatment under law. This may be regarded as an expression of an expectation that the people shall contribute to establishing a peaceful nation by respecting, helping and cooperating each other without discrimination. And in compliance with this spirit such necessary amendments were undertaken to the laws as abolishments of the "family", the "succession to the headship of a house" and the "head of house" in the Civil Code. However, such provisions as Article 200 of the Penal Code still exist and the existence of it has been supported by many people. And this Court has been holding hitherto that although to provide an aggravation for killing an ascendant is a discrimination by status it is not repugnant to Paragraph 1, Article 14 of the Constitution as based upon reasonable grounds. However, in the light of the vicissitude of circumstances, the change of the idea of the people and the reality of practice in cases of killing an ascendant, it has become to be appropriate to leave the maintenance of mutual love and respect, of help and of cooperation between ascendants and descendants to spontaneous affections, morality and customs; and to prevent killing an ascendant by maintaining special punishment clause has come to be unnecessary any more, and to maintain such a provision has become an obstacle to choose a suitable sentence in some cases.

So understood, since it must be said that to maintain a special clause for killing an ascendant besides an ordinary homicide and to aggravate the penalty have become to lose its reasonable grounds, Article 200 of the Penal Code is repugnant to Paragraph 1, Article 14 of the Constitution. Therefore the judgment below which applied Article 200 of the Penal Code to the conduct of the accused by holding that the provision was not invalid misconstrued the Constitution and should be reversed since this error is apparently harmful to the judgment.

The opinion of Justice Kotaro Irokawa is as follows:

1. The majority opinion says, in short, that Article 200 of the Penal Code providing killing an ascendant besides an ordinary homicide is generally speaking a discrimination by status, but, since killing an ascendant is so highly unethical, to provide a special crime and to aggravate the punishment for the purpose of preventing such a conduct is a reasonable discrimination permissible under the Constitution and cannot be immediately held unconstitutional, and that it violates Paragraph 1, Article 14 of the Constitution since the degree of aggravation is so extreme as to be out of balance as a means to achieve the said legislative purpose. Among these points, although I agree to the saying that Article 200 of the Penal Code is a discrimination by status and to the conclusion that it is repugnant to Paragraph 1, Article 14 of the Constitution, I cannot join in the opinion that making a special provision for killing an ascendant besides an ordinary homicide is a reasonable discrimination permissible under the Constitution.

2. As seen above, the majority opinion says that killing an ascendant deserves an especially serious denunciation for itself compared with an ordinary homicide, and seeks to find the reasonableness of the discrimination on this ground. The logic is in short developed as follows; (1) Ascendants and descendants (hereinafter abbreviated to parents and children) are the relative mainly based upon marriage and blood.

(2) The relative is a group bound together with spontaneous affections and feeling of intimacy.

(3) A certain order of young and old, and of the apportionment of the responsibilities exist in this group.

(4) Parents grow up children and owe legal and moral responsibilities for their conducts.

(5) Respect and gratitude to parents are fundamental morals and universal ethics in a social life.

(6) The said affections and ethics deserve the protection by criminal law.

(7) Killing an ascendant is a breakdown of the said group and is repugnant to the fundamental principle of human ethics.

(8) Since killing an ascendant deserves such a strong social and moral denunciation, taking into consideration this fact in sentencing is not unreasonable and then, going a step further, categorizing this as a special kind of homicide and making it a factor for an aggravation by law is permissible as a matter of course.

That is all.

3. In a word, the majority opinion seeks to find its basis for a reason why killing an ascendant is so unethical as incomparable to an ordinary homicide on two grounds; that the conduct is a destruction of an orderly family group bound together with spontaneous affections, and that it is an ungrateful conduct against parents. However, relatives "mainly based upon marriage and blood and bound together with spontaneous feeling of intimacy" are not parents and children alone. So are husband and wife, and brothers and sisters. Although husband and wife are a combination of persons unrelated by blood, can a spontaneous love between them be said weaker than that between parents and children bound with blood ? Needless to say with which a person is more strongly connected either a spouse or spouse's parents. In addition, husband and wife, together with parents and children or rather in a stronger sense, constitute a root and basic structure in a society (Moreover after children have grown up to be independent, the latter relationship will almost dissolve and lose its substance as a basic structure of a society. The tremendous increase of so called nuclear families in the last decade in our country is said to go ahead of those in Europe and America. This is an unavoidable trend of modern society beyond the question of good or bad or desirable or not.). The majority opinion emphasizes "a certain order of young and old and of the apportionment of the responsibilities." But neither is particular only to parents and children relationship. A more obvious "apportionment of responsibilities" exists between husband and wife, and of course there exists an order of young and old among brothers and sisters. "A certain order" undoubtedly exists among these relatives. Then a homicide committed among these relatives is to say nothing of a destruction of this connection, but no special crime is provided besides an ordinary homicide. What is more, even in the relation between parents and children, it is provided neither when a victim is a child. Although a homicide of children by parents which is so often committed recently is nothing but a destruction of the connection based upon spontaneous affections and most of them are impermissible inhuman crimes, neither an aggravation provision has been provided nor a demand for it has been heard in our country. Thinking in this way, the reason why the majority opinion regards killing an ascendant so unethical can be sought nowhere else than the latter part of its reasoning that it is an ungrateful conduct against parents.

4. With regard to this, in my understanding, the majority opinion seems to assert that since parents grow up their children and "owe in addition legal and moral responsibilities for their conduct", children have a duty to hold a sense of "gratitude" to them, and that to respect them as a reward to this favor is "basic morals in a social life" and "universal ethics".

But can this way of thinking be admitted as it is ?

(a) First I would like to examine the meaning that parents owe social responsibilities for the conducts of their children. So far as legal responsibilities are concerned, this proposition is not a mistake but is extremely inaccurate. Needless to say criminal law is governed by liability principle. Every person can be punished only for his own conduct, and not for the conduct of other's. Indeed, there are provisions in an administrative penal law which punish both a perpetrator and its employer, but the substance of it is to punish the inaction of failing to attend to supervise by negligence, and not a responsibility purely for the conduct of others. This punishment is imposed to the employer or the supervisor, and there is no provision which imposes punishment simply because the accused are parents. It is a story of a very old age and beyond imagination of modern penal law, that nine generations of a family were punished for the crime of one of its members. Indeed, in civil law, although only in the field of torts, a supervisory responsibility is provided (Civil Code Article 714). However, this responsibility is limited only to such extraordinarily exceptional cases where children have not reached the age of adult and cannot recognize the responsibility of their conducts and parents have neglected their duty of supervision. Although problematical from the standpoint of relief of the suffered, self-responsibility may be said a principle in civil law too.

Though what is said about moral responsibility sounds reasonable, the decision of whether to owe a moral responsibility is quite personal and is finally decided by a thought of each person, for it depends upon the nature of a conduct of children and the sense of responsibility of each person. Since there is no such social norm of ethics which is equally applicable to everybody, a person cannot be generally denounced for not having a strong sense of responsibility. Rather it is a social phenomenon which was seen before modern ages to severely accuse parents for the conduct of their children, and this trend should be repressed from the modern sense of reasons based upon individual independence and dignity rather than being supported or encouraged.

(b) The majority opinion urges taking care by parents and "gratitude" to it. Indeed, for parents to grow up their own children is accompanied with great difficulties, and some- times parents do not mind sacrificing themselves and it is quite natural for children to have a grateful idea to their parent's efforts of protection and breeding. But to name it "Favor" and to say that for children to reward this favor is "basic moral" or "universal ethics" in a social life, and that a strong social or legal denunciation should be given to children who violated this (For all its brevity, the majority opinion may be so developed.) is nothing but to show that the opinion is not free from the traditional idea of "Filial piety". And, since the majority opinion dose not say that the virtue so emphasized by them is different from traditional "Filial piety", it may be allowed to discuss further under the said premise.

By the way "Filial piety" is a virtue regarded as the most important in Confucianism. "Filial piety" taught in classical Confucianism, although modified a little, had become an unquestionable basic morals which governed the warrior's society of Tokugawa period together with "Loyalty", and in the latter part of this period it penetrated to some degree into the humbler classes of farmers, manufacturers and merchants with the spread of the idea of practical ethics. However, after all, the idea did not grasp general townsmen or farmers except wealthy class of people, and it is said that the family system based upon an idea of "Filial piety" was not established among the common people. But, as a result of being taken up by the government as one of the important parts of the enlightenment policy, and of being made generally known to the people by all means at the beginning of Meiji period, the virtue of "Filial piety" had come to be regarded as if it were an eternal and universal ethics. However, it was nothing more than a mere illusion; the idea was fostered in the back ground of the special family system in a certain period of history, and conversely, constituted its spiritual prop of the system; it should not be regarded to be morals of the natural law unchangeable through all ages and countries.

That the legislative purpose of Article 200 of the Penal Code was to maintain and reinforce a traditional family system succeeded from feudalistic age can be clearly seen in the so-called "reference book" (compiled by the Code Inquiry Committee) explaining the purpose of the draft for the revised Penal Code of 1901 which for the first time proposed that the killing an ascendant should include those committed against one's spouse's lineal ascendant, and in the statement by the government of the reasons for revision for the draft of 1907 which became the present Penal Code, and it was also pointed out by then leading textbooks on criminal law. Today, when a family system was denied to be repugnant to the principle of the Constitution, to regard "Filial piety" as the basic value of the criminal law may well be criticised as an anachronism.

(c) In relation with the Constitution I have more to say. "Filial piety" in Confucianism did not regard children as an independent existence. There the relation between parents and children is governed by the rule of authority and subordination in contrast with the relation between independent personalities and the difference of "Son (respectable)" and "Hi (low)" (It may be criticised that the present Civil Code followed the name of "Son" and "Hi" in spite of the amendment.) exists eternally, and to observe the unbreakable status order is an absolute demand. In a word, filial piety is morals for children to obey parents like slaves. The Confucianism teaches that the favor of parents is higher than mountain and deeper than sea, to devote the fidelity of infinite and amountless service, to adore and obey to them, and to serve them by denying oneself are the contents of the filial piety in Confucianism; and the utmost of it is that children should keep the attitude of children even when parents do not keep the attitude of parents. This was thoroughly described by the stories of the Four-and-Twenty paragons of filial piety in China. It is not necessary to spend many words that filial piety which demands such a blind and absolute obedience repugnant to the contemporary common sense is not compatible with the democratic ethics based upon individual dignity and equality. Thinking that the latter ethics is the basis of the Constitution, I cannot help bearing the very basic question to the standpoint of the majority opinion.

In saying so, I am not denying at all that it is an important morality for children to respect and to take good care of parents. However, since morality has high spiritual value only when observed by spontaneous and inner demand or decision of an independent personality, to enforce it by law may damage the true value of it. Indeed, sometimes it is necessary to enhance morality by means of law, so I am not insisting to draw a sharp line between these two fields generally. But even when it is necessary, what should be kept in mind most of all at the enactment of a statute protecting moral value is the necessity of the careful examination whether the morality accords with the Constitution. If the morality is repugnant to the principle of human dignity and equality laid down by the Constitution, the enactment should be held impermissible. Indeed, in a sense the virtue of "Filial piety" may be a beautiful Japanese tradition. However, in my opinion the law which intends to maintain, protect and reinforce the morality, linked with the old family system abolished already, which is not enhanced to a modern relation of parents and children based upon spontaneous affections and cooperation (Article 200 of the Penal Code is an example) is destined to be negated as repugnant to the Constitution.

(d) On this occasion I would like to refer to "Favor" of parents. Although give-and- take relationship to pay a devoted service as a reward to a received favor can be seen in the relation of lord and warrior in feudal ages both in east and west, a feeling or a moral sense that children should esteem their parents is different from this in quality and flows naturally from human nature. (Even in Confucianism, filial piety taught in ancient times was different from give-and-take relationship.) The true filial piety should not be such a formal one as a reward for the received favor. Above all, parents scarcely take care of children in anticipation of future reward. That is an expression of irresistible parental love without expecting any return. Regarding legal aspect, "supervision and education" of children is both the right and the responsibility of parents (Civil Code, Article 820), and to grow up children as an independent member of society is nothing but their duty, and therefore the expenses for their growth should be paid by parents except when children have special property. "The upbringing and education of children are natural rights of parents, and duties imposed above all upon parents." (Paragraph 2, Article 6, Grundnorm of Federal Republic of Germany) Therefore, to name this "Favor", to regard the reward to it as the highest duty of children, and to seek the main raison d'etre of Article 200 of the Penal Code in it do not accord with the principle of present law and are not admissible at all.

5. The majority opinion says that attaching the importance in sentencing to the fact that the victim is a parent is quite reasonable, and providing an aggravation by categorizing this is not an unreasonable discrimination. But unfavorable treatment in sentencing only because the victim is a parent cannot be free from the criticism of unconstitutionality. As for this reason all I have said can be quoted.

A sound sentiment of society is hurt when a child kills an unblamable parent as the consequence of his looseness, and the court, facing with this case, will not hesitate to hold that the circumstances of the crime is serious. But this is not so only because the crime is killing an ascendant. Since consideration of the circumstances of the crime should be so concrete and individual, the said decision is to be regarded as a result of taking these specific circumstances into consideration. Observing the reality of the sentences in cases of killing an ascendant, as pointed out by the majority opinion, unless accompanied with other crimes, "in only few cases the provided punishment is imposed, not only reductions are made in most of the cases, but are made twice in not a few cases, three years and six months imprisonment at forced labor is not rarely imposed as well which is the minimum of thus reduced punishment", thus heavy punishment has not been imposed in the past only because the victim was a parent. The foregoing expression of the majority opinion mentioned at the beginning of this paragraph is not persuasive taking the past examples into considerations.

6. As mentioned above, I have frankly expressed some of the reasons why I cannot agree with the majority opinion. However, I do not grudge to appreciate the epoch-making significance of this decision, I deeply admire the courageous decision holding that Article 200 of the Penal Code is unconstitutional by throwing away the view to which the Court has adhered for many years. Though, I cannot help regretting for the majority opinion which does not proceed one step further to hold that the discrimination in criminal law simply based upon the relation of parents and children is unconstitutional in itself. (Although I have not referred to the dissenting opinion of Justice Shimoda that Article 200 of the Penal Code is constitutional, my opinion above explained may be quoted as a criticism to it. Since the opinion of Justice Shimoda is so far from the original point of the Constitution in its holding about the reasonableness of the discrimination and in its proposition of judicial self-restraint, I cannot agree at all.)



The opinion of Justice Ken-ichiro Osumi is as follows:

Although I agree to the conclusion of this decision that Article 200 of the Penal Code is invalid in violation of Paragraph 1, Article 14 of the Constitution, I cannot join in its reasoning. I state my opinion.

1. According to the majority opinion, providing an aggravating provision of Article 200 of the Penal Code for killing an ascendant besides an ordinary homicide is a discrimination in the sense of Paragraph 1, Article 14 of the Constitution; and since this clause of the Constitution should be understood to prohibit discriminations unless based upon reasonable grounds depending upon the nature of the matter, whether Article 200 of the Penal Code violates this clause should be decided by the decision of whether the discrimination has reasonable grounds then killing an ascendant being so unethical the said discrimination cannot be immediately held to have no reasonable ground; but Article 200 of the Penal Code far exceeds the needs to achieve the legislative purpose and provides extremely unreasonable discrimination compared with an ordinary homicide in that the punishments are limited only to death and life term imprisonment, thus is repugnant to the said clause of the Constitution.

Among these points, I have no objection to saying that to provide Article 200 of the Penal Code itself is a discrimination in the sense of Paragraph 1, Article 14 of the Constitution and that reasonable discriminations are permissible under this clause, but I cannot agree to say that to provide aggravating provision of Article 200 of the Penal Code for killing an ascendant itself is a reasonable discrimination under the Constitution.

2. The reasons why the majority opinion holds that to provide a special crime of killing an ascendant and aggravating for its penalty is not immediately an unreasonable discrimination for itself are that (1) the relatives have its basis mainly upon marriage and blood and are bound together with spontaneous affections and feeling of intimacy and there naturally exists a certain order according to the difference of young and old and the apportionment of responsibilities, (2) usually, since descendants are grown up by their lineal ascendants as parents or grandparents, and ascendants owe legal and moral responsibilities for the conducts of descendants as well, respect and gratitude to ascendant should be regarded as fundamental moralities in a social life, and killing one's own or one's lineal ascendant, being a destruction of this relation, deserves a strong social and moral denunciation, and the maintenance of such spontaneous affections and universal ethics as respect and gratitude to ascendants deserves a protection in criminal law.

Among these reasons, since the relation described under (1) exists not only between ascendants and descendants, but also between husband and wife and between brothers and sisters, it is needless to say that it cannot be a reasonable ground of a discrimination for killing an ascendant. Then the reason why the majority opinion holds that a discrimination for killing an ascendant is not unreasonable should be attributed to what is said under (2).

3. As stated by the majority opinion, it seems that as the ideological background of the enactment of the Article 200 of the Penal Code, there existed an idea of imposing heavy punishment for killing an ascendant which stemmed from the Chinese classic law and could be seen in our Ritsuryo system and the legal system of Tokugawa Shogunate, and that especially the clause can be said to have a deep relation with the family system, which was abolished by the Constitution, for its inclusion of the conduct against one of his or her spouse's lineal ascendants; and observing legislative examples abroad, a thought of aggravation to patri- or matri-cide has been gradually disappearing in modern ages, and not a few countries do not have aggravation provisions from the beginning, even these countries which once owned such provisions have abolished them recently or are now mitigating their severity. From this very fact, it may be well conjectured that an idea of aggravation of killing an ascendant underlying Article 200 of the Penal Code or a moral idea of respect and gratitude to an ascendant referred as a reasonable ground by the majority opinion, are not necessarily universal but can be existed only in particular historical and social circumstances. And since Article 200 of the Penal Code is intended to punish killing an ascendant more severely merely on the ground that the victim is a lineal ascendant of a perpetrator or his or her spouse, the lineal ascendants are regarded to be unconditionally respectable simply because they are lineal ascendants and thus the object of an enactment of the provision seems to be based upon a kind of status morality. Namely, in my opinion, the provision is to maintain the ethics among families and the social orders backed by a moral ideology of old family system--with the family chief as the central figure--which emphasizes the authority and subordination relationship and status orders between ascendants and descendants. In that sense, the provision is repugnant to the spirit of Paragraph 1, Article 14 of the Constitution which guarantees the people the equality under law, and should have been abolished at the time when the Penal Code was partially amended by the Law No. 124, 1947 in compliance with the idea of the Constitution.

Of course ascendants and descendants are usually bound together with spontaneous affections and feelings of intimacy (Although this spontaneous affections are universal, it is not appropriate to identify this with what is called the ethics of respect and gratitude to ascendants as stated by the majority opinion.) and to respect and to be filial to their parents is a morality for children to observe, but it should be an unforced morality realized upon the principle of human dignity and equality, (That is not like a reward to a received favor as stated by the majority opinion, but the expression of their feeling from the human nature.) and should not be forced by law but should be spontaneously observed by ascendants and descendants. Indeed, it goes without saying that a moral norm can be a content of a legal norm, but the said morality of children to parents is not only unsuitable to be enforced by law, but to enforce it, upon a simple idea that ascendants should be respected simply because they are ascendants, is to provide a kind of unreasonable discrimination upon status by law and, as stated above, is repugnant to the spirit of Paragraph 1, Article 14 of the Constitution.

As explained above, I think that to enact Article 200 of the Penal Code creating the special crime of killing an ascendant and aggravating penalty is in itself an unreasonable discrimination violative of Paragraph 1, Article 14 of the Constitution, therefore to ask whether the provided punishment is too severe is not necessary.

4. Finally, although I think that Article 200 of the Penal Code which aggravates punishment for only an act of killing an ascendant by a descendant violates Paragraph 1, Article 14 of the Constitution as explained above, and I would like to add that, unlike such a unilateral provision, to create a special crime of what may be called a killing a relative for the homicide among husband and wife and among such a lineal relatives as parents and children (killing a spouse, killing a parent, killing a child) and to aggravate it does not necessarily violate that clause of the Constitution unless the degree of an aggravation does not exceed the reasonable extent. While I am negative as for the necessity or the appropriateness of creating such a provision, the question is within the legislative policy.

The dissenting opinion of Justice Takeso Shimoda is as follows:

In the light of the historical background of the principle of equality under the law stipulated in Paragraph 1, Article 14 of the Constitution, it is my opinion that such family status as ascendants and descendants does not come under the social status mentioned in that Paragraph, and that, therefore, the appropriateness of creating discrimination in criminal law upon this ground is not the concern of the said Article. However, I will not dwell on this point, since the majority opinion delivers a judgment upon the validity of Article 200 of the Penal Code taking the premise that the discrimination in criminal law made because of the status of ascendants and descendants is also included in the discrimination in the sense of the clause; and I would like to state my points why, even if I stand on the same premise with the majority opinion, I still cannot agree with the conclusion of the majority which easily denied the constitutionality of the said provision.

1. In the first place, I cannot agree at all with the conclusion of the majority opinion that the provision of Article 200 of the Penal Code is repugnant to Paragraph 1, Article 14 of the Constitution and is invalid, because of the reason that the punishment provided for in that Article is too severe to be justified as a discrimination based upon reasonable ground. The majority opinion points out the fact that the provided punishment for parricide is limited to death or life term imprisonment and the permissible scope of the selection of punishment is too narrow compared with the punishment provided for the ordinary homicide, and it also emphasizes the subsequent impossibility of affording suspension of execution of the punishment to a descendant who committed the crime of killing an ascendant and, then, concludes that such a severe punishment "cannot be fully explained".

However, to begin with, stipulating kind and degree of punishment to be applied to a certain crime primarily comes under the legislative discretion, and it was already admitted by the en banc decision of the Court on December 15, 1948 (Criminal Cases Vol. 2, No. 14, p. 1783) that even when there seemed to exist an unbalance between provided punishment of a certain clause and others, that was principally a question of the appropriateness of legislative policy and would not immediately raise a constitutional question.

Since killing an ascendant is repugnant to the basic principle of human ethics in itself, and since the unethical nature of a person who committed such a conduct deserves a strong social and moral denunciation, it is quite natural, as stated by the majority opinion, that Article 200 of the Penal Code provides an especially severer punishment than in a case of an ordinary homicide, for the purpose of strictly prohibiting such an act.

The majority opinion does not question the aggravation of punishment for parricide itself, but, instead, holds that the degree of aggravation is excessive; however, whether or not it is excessive depends wholly upon a value judgment, and to discuss it abstractly would lead to arbitrariness. Because, in such a value judgment, to respect the positive law--that is to say to respect the conclusion reached by the legislature, which represents the majority opinion of the people, not only from legal standpoint but also from such various aspects as morality, sentiments, history and tradition, manners and customs of the people, through discussions upon various materials--is to comply with the fundamental principle of check and balance of the Constitution; and the Court should keep a most prudent attitude in order not to interfere with such matter in violation of the principle of judicial self-restraint.

2. Looking back the history of the provision for parricide, the present Penal Code was enacted as a revision of the old Penal Code (Decree No. 36 of the Cabinet in 1880), and one of the important purposes of this revision was to enlarge the scope of punishments to be selected by the judge in order to allow him wider discretion in deciding appropriate sentences; and in compliance with this purpose, while Paragraph 1, Article 362 of the old Code provided only death penalty for killing an ascendant, and Article 365 prohibited the application of provisions of reduction or remission of punishment (then called pardon or un-accusation), Article 200 of the present Penal Code mitigated the severity of punishment by adding the life term imprisonment and, also, by enabling the application of the provision of reduction and remission. Moreover, the minutes of the Imperial Diet at that time reveals that some of the members strongly insisted that the punishment should be still limited to death in order to encourage the morality of filial piety; and the present Code was enacted by rejecting this proposition only after long hours of discussion. In the light of this history, the allegation of the majority opinion that the punishment provided for in Article 200 of the Penal Code is excessively severe is not entirely correct, and therefore, its conclusion that the provision is unconstitutional for this reason seems to lose ground.

Furthermore, as pointed out by the majority opinion, at the time when the Penal Code was again partially amended in 1947 in the first Diet in compliance with the spirit of the new Constitution, Article 200 of the Code was intentionally excluded from the scope of amendment; and this fact also should be interpreted as the recognition by the legislature of the constitutionality of that provision. Since then only a quarter of a century has passed, and in spite of the facts that the difficulties in sentencing under this provision have often been discussed during this period of time, that even the opinion has been published which insisted its unconstitutionality, and that recently another Draft for Revision of the Penal Code which intends to abolish this provision was published (although the draft is nothing more than a tentative one), no legislative measures have been adopted until today. These facts should be regarded as demonstrating that the legislature not only admits its constitutionality but recognizes its appropriateness from the standpoint of legislative discretion even today. Considering such historical background, the necessity of observing judicial self-restraint and respecting the legislative judgment are still very important in the case of Article 200 of the Penal Code.

Explanation of the majority opinion on this point, however, is so simple saying only that "the provided punishment for killing an ascendant cannot be fully explained by the esteem and maintenance of such spontaneous affections of universal ethics as respect and gratitude toward ascendants", and it cannot be taken as an objective assertion deprived of any arbitrariness.

However, I do not shut my eyes to the legislative tendencies in foreign countries to mitigate the degree of aggravation of punishment for parricide, and I also have my own idea if it concerns future legislative proposal (it would be worth while considering mitigation of the severe punishment for killing an ascendant of the present Penal Code and, at the same time, providing for an intermediate term of imprisonment somewhere between life term, the minimum limit of the penalty of Article 200, and three years, the minimum limit of the penalty of Article 199 for an ordinary homicide); but, as a judge is not entitled to make a legislative proposal, the decision of what kind of punishment for killing an ascendant should be enacted or abolished in what stage in the future should be entrusted entirely to the legislative discretion. I can hardly understand why this Court suddenly has to declare unconstitutionality of this important provision of the Penal Code without taking into consideration the above-mentioned background, and in disregard of the fact that the previous amendment of the Code took place not so long ago.

3. By the way, since an opinion is attached to this decision to the effect that the legislative purpose of Article 200 of the Penal Code is unconstitutional in itself, I would like to make a few comments on it, which will, I hope, prove at the same time that a "full persuasive explanation" is possible for the punishment provided for in that Article.

The relationship between parents and children is the supreme and most delicate creation of the nature beyond the human knowledge; it is one of the most respectable human relationship which constitutes the very basis for the survival of mankind and for the inheritance of human culture, and spontaneous affections and unintentional order therein are as old as human history throughout ages and continents. (This is also more or less substantially true, in case of an artificial relation of parents and adopted children, and in its turn, in a relation with one's spouse's parents.) This natural and spontaneous human relationship cannot be regarded in the same light with unreasonable discrimination based upon such artificial social status, as slavery, aristocracy and plebeianism, or the caste system of warriors, farmers, artisans and tradesmen of old ages which are incompatible with the equal treatment under the law stipulated in Paragraph 1, Article 14 of the Constitution.

It is, therefore, not unreasonable to demand to descendants respect, affection and gratitude towards their ascendants and, from this standpoint, to provide appropriate legislative measures along the line of this universal ethic; and such provision as Article 200 of the Penal Code is by no means unreasonable as a realization of the legislative purpose.

In view of the above, it is hardly necessary to spend many words in order to refute the criticism against the provision of Article 200 of the Penal Code which says that it is a measure to inspire and promote the old feudal ethics or that it legally enforces the morality of "Filial piety". Although it is a historical fact that, at the time when Article 200 of the Penal Code was enacted, legislators took the old family system into consideration, the provision is not indivisible with the family system; and, especially today when the family system is legally abolished under the new Constitution, there is no ground for worrying about undesirable effects which might arise in relation with the family system. Someone criticises also that the said provision picks up only the relation of descendants toward ascendants and neglects other family relationships, but it goes without saying that affections and intimacy between husband and wife, brothers and sisters are completely different in its nature from gratitude and respect of descendants toward ascendants. Moreover, since the question before us is the constitutionality of Article 200 of the Penal Code, such question as to whether there are or not other types of conduct which should be as severely denounced as parricide is not our immediate concern.

4. The majority opinion points out with emphasis the difficulties in sentencing under Article 200 of the Penal Code; indeed, it cannot be denied that there may be, from time to time, some exceptional cases where judges have difficulties in sentencing under the positive law, because the duty of the judiciary is to deliver a concrete decision in an actual case, quite contrary to the duty of the legislature which enacts laws in expectation of foreseeable future phenomena. The case before us seems to be one of such exceptional cases, and I am behind no one in deeply sympathizing the terrible circumstances which motivated the conduct of the accused. However, it is the duty of the judge to give a reduction of penalty within the permissible limit of law, and when appropriate conclusion cannot be reached in spite of all the means within this limitation, the remedy should be left to such executive treatments as pardon or conditional discharge. It would be a gross mistake to declare the provision itself unconstitutional, as the majority opinion does, solely because the specific accused's conduct is pitiable and the selection of punishment for it is extremely difficult.

5. Finally, as Justice Tanaka refers to my opinion on judicial power to review the constitutionality of laws, I would like to add a few words on this point. I am not saying that "once the legislature has judged a statute to be constitutional the intervention to it by the court should not be permitted," nor that "a statute should be held constitutional, simply because it is enacted pursuant to the majority opinion of the Diet." The Constitution gives the Court the ultimate power to determine the constitutionality of any law, order, regulation or official act (Article 81 of the Constitution) and thus admits the judicial supremacy over the legislative and the executive branches; and I believe that the Court, for this very reason, should be most prudent in exercising this supreme power. Especially, the Court should use utmost prudence when it examines the constitutional validity of the provisions of criminal law which are usually so closely related with ethical norms, since the decision of the Court, in such cases, not only affects the interest of the accused but might possibly have a deep influence upon public morality.

Today, discussions are going on at home and abroad with regard to many such questions in criminal law, besides the question of parricide, as the abolishment of death penalty, application of euthanasia, etc., and some of these discussions are going to extreme under the influence of ideological confusion the post war era. The Court is, therefore, requested, when exercising the power of judicial review upon criminal statute, to deliver a comprehensive and deliberate decision, taking into consideration universal principles of human ethics lying be- hind these provisions and, also, taking a long term vision without being fascinated by the current trend. And since the examination of the above-mentioned questions requires broad consideration over the national sentiments, traditions, customs and manners of the people, and, also, requires study in the fields of religion, medicine, psychology and various other fields, the legislature which represent and reflect the wide scope of the opinion of people is better placed than the judiciary. The Court should fully respect the judgment of the legislature in these cases, in compliance with the constitutional principle of check and balance.

It would be contrary to the principle of judicial self-restraint to deliver a judgment which will affect the discussion of the Diet, at a time when a work of drafting the Revised Penal Code is being undertaken and when a bill of the government will be prepared on its basis and proposed to the Diet in not a distant future, and the result of its deliberation cannot be foreseen at all.

As explained above, I agree neither with the opinion that the legislative purpose of Article 200 of the Penal Code violates the Constitution (The purpose unconstitutional theory) nor with the opinion admitting the constitutionality of the purpose but stating that the degree of the aggravation for achieving the purpose is unconstitutional (The method unconstitutional theory); and I believe that the said provision has reasonable grounds both in its purpose and in its measure to achieve it and, therefore, is not repugnant to the Constitution. In conclusion, since the alleged unconstitutionality in the appeal purport is without merit, and every other point does not establish legal ground of appeal, the appeal should be rejected.

Public procurators, Taizo Yokoi, Junnosuke Yokomizo, Akira Yamamura attended at an oral argument.

Justice Kazuto Ishida
Justice Kenichiro Osumi
Justice Tomokazu Murakami
Justice Kosato Sekine
Justice Ekizo Fujibayashi
Justice Masao Okahara
Justice Nobuo Ogawa
Justice Takeso Shimoda
Justice Seiichi Kishi
Justice Buichi Amano
Justice Yoshikatsu Sakamoto
Justice Jiro Tanaka, Makoto Iwata, Kazuo Shimomura, Kotaro Irokawa did not sign the opinion because of their retirement.
Signature; Presiding Judge, Justice Kazuto Ishida