2003.03.18

2002 (A) 805

Keishu Vol.57, No. 3, at 371

Decision upon the case adjudging that, where a foreign national who has been living separately from his Japanese wife forcibly takes away his child who has been in the custody of his wife for the purpose of taking the child to his home country, such an act of the foreign national shall constitute an offense of kidnapping for the purpose of transporting the kidnapped person to a foreign country

Case to be brought for kidnapping for the purpose of transporting the kidnapped person to a foreign country and destruction of objects

Decision of the Second Petty Bench, dismissed

Tokyo High Court, Judgment of March 15, 2002

Where a person of Dutch nationality, who has been living separately from his Japanese wife, forcibly takes his two-year and four-month-old daughter, who has been in the custody of his wife, from the hospital where she is staying, for the purpose of taking her away to the Netherlands, such an act of the Dutch person shall constitute an offense of kidnapping for the purpose of transporting the kidnapped person to a foreign country, and cannot be justified even if consideration is given to the fact that the Dutch person intended to take his daughter back to his home country as one of the persons having parental power over her.

Article 35 of the Penal Code
An act done in accordance with laws or ordinances or in the pursuit of lawful business is not punishable.

Article 226(1) of the Penal Code
A person who kidnaps or abducts another for the purpose of transporting the same to a foreign country shall be punished with imprisonment with labor for a limited period of not less than two years.

The jokoku appeal of this case shall be dismissed.
The defendant shall bear the cost for this instance.

The grounds for the jokokuappeal argued by the jokoku appeal attorney MAKI Yukio , including the one alleging violation of the Constitution, are in effect mere claims of violation of laws, errors in facts, or inappropriateness in sentencing, none of which can be regarded as a legal ground for Jokoku-appeal under Article 405 of the Code of Penal Procedure.

Based on the jokoku appellant's argument, the establishment of an offense of kidnapping for the purpose of transmitting the kidnapped person to a foreign country shall be determined ex officio.

Given the facts found in the second instance judgment approved by the second instance judgment, the defendant of Dutch nationality had been married to a Japanese woman but living separately from her. At about 3:15 a.m. on September 25, 2000, he took the daughter (aged two years and four months at that time) of the marriage between him and his wife, who had been in the custody of his wife, from the hospital where she was staying accompanied by his wife (located in A-Machi, Minamikoma-Gun, Yamanashi), by pulling her by the legs, hanging her upside down and wedging her between his arm and waist. He then put her in a car that he had made ready in advance, started the car and drove away.

Given the facts outlined above, the defendant forcibly took his daughter, who had been living peacefully in the custody of his separated wife, one of the persons jointly having parental power over his daughter, from the hospital where she was staying, for the purpose of taking her away to a foreign country, thereby taking her away from the environment where she had been protected and in effect putting her under his control. Such an act of the defendant shall evidently constitute an offense of kidnapping for the purpose of transporting the kidnapped person to a foreign country. Furthermore, in light of his malicious manner in which the act was conducted, it shall not be regarded as an exceptional act that can be justified even though consideration is given to the facts that the defendant was one of the persons jointly having parental power over his daughter and he intended to take her back to his home country. Therefore, the second instance judgment acknowledging the establishment of an offense of kidnapping for the purpose of transporting the kidnapped person to a foreign country shall be justifiable.

In the end, the decision was rendered in the form of the main text by the unanimous consent of the Justices under Articles 414, 386(1)(iii), and 181(1)[main text] of the Code of Criminal Procedure.

Justice KAMEYAMA Tsugio
Justice FUKUDA Hiroshi
Justice KITAGAWA Hiroharu
Justice KAJITANI Gen
Justice TAKII Shigeo