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1999 (A) 96

1999 (A) 96
Keishu Vol.54, No.6, at 513
Decision finding a tape recording of a conversation made without the other party's consent to be admissible evidence
Defendant Charged with Fraud
Decision of the Second Petty Bench, dismissed
Tokyo High Court, decision of December 9, 1998
When a person who believes he or she has been defrauded, and distrusting the other party's explanation, records a conversation with the other party for use as evidence, this act is not unlawful even if it is done without the other party's consent, and the tape recording is admissible as evidence.
Article 317 of the Code of Criminal Procedure
Facts shall be found on the basis of evidence.
Jokoku appeal is dismissed.
Ground (1) for Jokoku appeal of the Appellant's attorney MOMOYA Kazuhide, including the claim of unconstitutionality, amounts to a claim of simple statutory violation. Ground (2), a claim of a breach of judicial precedent, is inapposite since in the case cited and relied upon, the court held only that it was not unlawful to record a conversation or similar exchange without the consent of the other party under the circumstances of the case then at hand. Therefore, neither contention amounts to grounds for a Jokoku appeal.

Deciding this case ex officio, this Court will proceed to examine Jokoku Appellant's arguments:
[Summary] The tape recording examined as evidence in this case is a recording of a conversation with Appellant that was made for use as evidence by a person who believed himself to have been defrauded by Appellant and who distrusted Appellant's explanation. Under these circumstances, it is not unlawful for one party to a conversation to make a tape recording thereof without the other party's consent, and the contention that the aforesaid tape recording is inadmissible as evidence is groundless.

Therefore, in accordance with Article 414 and Article 386, para. 1, sub-para. 3 of the Code of Criminal Procedure, this Court unanimously finds as stated in the main text of the decision above.
Justice KITAGAWA Hiroharu
Justice KAWAI Shinichi
Justice FUKUDA Hiroshi
Justice KAMEYAMA Tsugio
Justice KAJITANI Gen
(This translation is provisional and subject to revision.)
(* Translated by Judicial Research Foundation)