2005.12.06

2004 (A) 2199

Keishu Vol. 59, No. 10

Decision ruling that where the father with joint parental authority took away by physical force his two-year-old child who was in the custody of the mother living separately from him, the father's act of kidnapping the child cannot be justified

Case to be brought for kidnapping

Decision of the Second Petty Bench, dismissed

Sendai High Court, Judgment of August 26, 2004

Where the father took away by physical force his two-year-old child who was in the custody of the mother living separately from him, if there were no special circumstances in which it was actually necessary for the father to commit such an act and the act was violent and coercive, the father's act of kidnapping the child cannot be justified even though he has parental authority.
(There is a concurring opinion and a dissenting opinion.)

Articles 35 and 224 of the Penal Code, Articles 818 and 820 of the Civil Code

Article 35 of the Penal Code
(Justifiable acts)
An act committed in accordance with laws or ordinances or in the pursuit of lawful business shall not be punished.

Article 224 of the Penal Code
(Kidnapping or Abduction)
A person who kidnaps a minor by force, threat, fraud or enticement shall be sentenced to imprisonment with labor for not less than three months nor more than seven years.

Article 818 of the Civil Code
(Parental authority)
1. A child who has not yet attained majority shall be subject to the parental authority of its father and mother.
2. An adopted child shall be subject to the parental authority of its adoptive parents.
3. While father and mother are in matrimonial relation, they shall jointly exercise parental authority. However, if either the father or the mother is unable to exercise parental authority, the other parent shall exercise it.

Article 820 of the Civil Code
(Custody and education)
A person who exercises parental authority has the right and duty to have custody and educate the child.

The jokoku appeal shall be dismissed.

The grounds for the jokoku appeal argued by the attorney YAMAYA Sumio, including the one alleging violation of the Constitution, are in effect nothing more than claims of violation of law or errors in fact-finding, and none of these arguments can be accepted as a ground for jokoku appeal under Article 405 of the Code of Criminal Procedure.
After considering the argument, however, we decide to make judgment ex officio regarding whether or not the defendant should be deemed to have committed the crime of kidnapping.
1. According to the judgment of the second instance and the judgment of the first instance, which was maintained by the former, as well as the records, the outline of this case are as follows.
(1) The defendant, in an attempt to take his son C (aged two at that time) away from his wife B who lived separately from the defendant and was rearing C, on November 22, 2002, at about 3:45 p.m., on the sidewalk on the south of the nursery school in Hachinohe City, Aomori Prefecture, clasped in his arms C who was on the way home accompanied by B's mother D, and then put C into his car parked nearby and drove away, thereby placing C under his control.
(2) The defendant took away C in the following manner. When D, who came to the nursery school to pick up C on behalf of B, was preparing to put C into her car, the defendant, by taking advantage of a momentary chance, ran up to C, lifted C by inserting his arms under C's arms from behind, dashed at top speed to his car, which was parked unlocked with the engine running, got into the driver's seat while holding C, set C down on the front passenger's seat after locking the door, and drove off without caring about D who was standing outside the driver's seat of the defendant's car and trying to stop the defendant by holding the door of the driver's seat and hitting the car window with her hands.
At about 10:20 on that day, the defendant was discovered by the police officer when he was in his car with C on a deserted forest road in A-machi, Higashitsugaru-gun, Aomori Prefecture, and arrested with a warrant.
(3) The defendant committed the act mentioned above under the following circumstances.
The defendant married B because C was born between them, and the family lived in Tokyo. On September 15, 2001, because the defendant became violent during an argument, B went to her parents' home located in Hachinohe City, Aomori Prefecture and took C with her. Since then, B separated from the defendant and lived with her parents and C in her parents' home. The defendant, who could not put up with being not free even to see C, attempted to take C from B and take care of and rear C under his control, went from Tokyo where he lived to Hachinohe where C lived, and finally committed the act.
It should be noted here that the defendant had committed a similar act in August 2002; he caused his female acquaintance to pretend that she was a relative of C and take C out of the nursery school, and placed C under his control while staying in different hotels until he was arrested for kidnapping in Okinawa Prefecture nine days later.
(4) At the time of the incident, the conciliation proceedings for the adjustment of marital relationships and the divorce action initiated by B against the defendant were pending, but no legal dispositions had yet been made to restrict the defendant's parental authority or custody over C.

2. According to the facts mentioned above, the defendant, despite the fact that C lived peacefully in the family home of B who had joint parental authority, and was taken care of and reared by B and her parents, took C who was on the way home while accompanied by the grandmother D by using physical force in the manner mentioned above, and separated C from such secure environment and effectively placed C under his control. The defendant's act obviously constitutes the crime of kidnapping, and the fact that the defendant also had parental authority should be taken into consideration when determining whether his act may be allowed exceptionally (see 2002 (A) No. 805, judgment of the Second Petty Bench of the Supreme Court of March 18, 2003, Keishu Vol. 57, No. 3, 371).
In this case, the defendant attempted to take C from B who also had parental authority and disputed with him over divorce, thereby having C in his own hands. There were no special circumstances in which it was actually necessary for the defendant to commit such an act by reason of the custody and rearing of C, and therefore the defendant's act cannot be justified even though the defendant had parental authority. Furthermore, considering that the defendant's act was violent and coercive, C was only two years old and incapable of making a decision or choice as to his own living environment, and it is difficult to find the defendant to have had a concrete plan for taking care of and rearing C after the kidnapping though C was an infant child who needed full-time custody and rearing, the defendant's act cannot be regarded as being within the bounds of socially acceptable acts as a domestic matter. Consequently, there are no reasons to justify the defendant's act, and the judgment of the second instance that found the defendant to have committed the crime of kidnapping is justifiable.

Therefore, according to Article 414 and Article 386(1)(iii) of the Code of Criminal Procedure, the decision was rendered in the form of the main text by the unanimous consent of the Justices, except that there is a concurring opinion by Justice IMAI Isao and a dissenting opinion by Justice TAKII Shigeo.

The concurring opinion by Justice IMAI Isao is as follows.
In my opinion, criminal justice should refrain from intervening in domestic disputes to the greatest possible extent, and I am in agreement with the dissenting opinion in that a dispute over child custody between the husband and the wife living separately, as one in this case, should basically be solved by a family court. However, for this reason, in other words, because I attach great importance to the role of family courts, I cannot agree to the dissenting opinion that denied the illegality of the defendant's act.
Family courts are established as courts specializing in solving legal disputes on various domestic matters, and they are equipped with necessary human and material resources as well as various procedures such as the Law for Adjudgment of Domestic Relations. This means that the Japanese court system expects the use of family courts to solve legal disputes on domestic matters when mutual consultations between the parties concerned over such matters fail to reach mutually acceptable solutions.
However, in cases where either the husband or wife living separately takes their child from the other party's custody against the other party's will and places the child under his/her own control, as in this case, even if such an act derives from parental affection to the child, it cannot be denied that the perpetrator intended to resort to force to solve a legal dispute on domestic matters instead of referring it to the family court, disrespecting the role of the family court and making it difficult to solve the dispute at the family court. Recently, an increasing number of parents seek to obtain parental authority or custody over their child and request the surrender of the child through conciliation proceedings for divorce or marital relationships. If the defendant's act in this case were allowed under criminal law, it might intensify the tendency to resort to force in order to place the child under one's own control and take ccustody of the child, instead of trying to hold peaceful consultations between the parties concerned or referring disputes to family courts. Also from the perspective of ensuring the child's welfare, when either the father or mother resorts to force in order to take out the child who lives peacefully under the other party's parental authority and place the child under his/her control, such an act causes drastic changes to the child's living environment and it may have a considerably adverse impact on the child's physical and mental conditions.
I am in agreement with the dissenting opinion in that emphasis should be placed on the role of family courts in the process of solving legal disputes on domestic matters, and for nothing other than this reason, I disagree with the dissenting opinion and consider that in cases where either the husband or wife living separately takes their child from the other party's custody by force and effectively places the child under his/her control, such act constitutes the crime of kidnapping, and even if it derives from parental affection to the child, it cannot be justified unless there are special circumstances.

The dissenting opinion by Justice TAKII Shigeo is as follows.
I am in agreement with the view that when either the father or mother with parental authority takes out, by physical force, the child who is taken care of and reared by the other party with parental authority, and effectively places the child under his/her control, such an act should be regarded as constituting the crime of kidnapping. However, when the parents live separately because of marital discord, they frequently dispute over the custody of their child under joint parental authority and then, either party attempts to take the child away from the other party who is rearing the child at that time in order to effectively place the child under his/her control. Moreover, if such an act has its roots in parental affection for the child and it is committed by the means or in a manner that should be generally accepted in light of the spirit of the entire order of law, it should be regarded as being reasonable in light of what is socially acceptable and therefore lacking substantial illegality. The state authority must be especially careful about applying the criminal provision on the crime of kidnapping and abduction in order to intervene in cases where either father or mother with parental authority attempts to place their child under his/her control when he/she is currently not taking care of the child.
It may be understood that the legal interests protected by outlawing kidnapping and abduction include the liberty and safety of the kidnapped/abducted person and the custody right held by the person who takes care of the kidnapped/abducted person. However, I consider that the former is more essential than the latter, and that the latter cannot have significance independent from the former, except in only limited instances. In particular, where the act in question is committed by the father or mother with parental authority, as in this case, protection of the liberty and other legal interests of the child must be primarily emphasized when considering the substantial illegality of the act, unless the act goes beyond the bounds of the exercise of parental authority. This is because, in such a case, the perpetrator may be regarded as being allowed to exercise parental authority on an equal footing with the other party who actually takes care of the child, and it can be considered that the act may be regarded as just the perpetrator's exercise of his/her right that conflicts with the other party's right.
In this case, the defendant attempted to take C from his wife who also had parental authority and thereby to have C in his own hands. As pointed out by the majority opinion, there were no special circumstances in which it was actually necessary for the defendant to commit such an act. However, at the same time, it cannot be denied that the defendant's act derived from his parental affection to the child, and it cannot be said that the defendant should be particularly blamed for carrying out such an act.
It is true that the defendant kidnapped C, who was only two years old and incapable of making a decision or choice as to his own living environment, without any concrete plan for taking care of and rearing C after kidnapping. However, whether or not an act that occurred between the parent and the child is acceptable in light of socially-accepted thinking should be determined from the viewpoint of ensuring the child's welfare and from a relatively long-range perspective. In my opinion, criminal law should carefully refrain from intervening in such a case by focusing exclusively on how a particular act was committed on a particular day.
In disputes between the husband and the wife over their children, the surrender of children was often requested under the Habeas Corpus Law. The Supreme Court applied a narrow standard for determining the existence of "obvious illegality" of the restraint, which is required for ordering the surrender, and took a stance that this kind of dispute should be solved by family courts unless it is evidently detrimental to the child's welfare (among others, 1993 (O) No. 609, judgment of the Third Petty Bench of the Supreme Court of October 19, 1993, Minshu Vol. 47, No. 8, 5099; 1994 (O) No. 65, judgment of the Third Petty Bench of the Supreme Court of April 26, 1994, Minshu Vol. 48, No. 3, 992)
In 1993 (O) No. 609, judgment of the Third Petty Bench of the Supreme Court of October 19, 1993, Justice KABE Tsuneo presented a concurring opinion and suggested that family court's provisional preservative measures should be actively utilized in disputes over child custody, stating: "A dispute over custody of an infant child between the child's parents who live separately is basically subject to the exclusive jurisdiction of family courts, and the procedure for adjudgment of domestic relations as well as the human and material resources of family courts exist particularly for the purpose of investigating and adjudging such dispute." I agree completely with this opinion, and consider that disputes over child custody must be handled by placing top priority on the child's welfare and solved exclusively under the jurisdiction of family courts, and therefore other authorities, and in particular the criminal justice authorities, should refrain from intervening in such disputes to the greatest possible extent.
From this standpoint, the defendant should have referred the dispute over child custody to a family court. Where either the father or mother seeks to exercise his/her parental power for the child who lives peacefully under the other party's parental authority, he/she should first try family court procedures, and must not resort to force in order to have the child in his/her own hands.
However, the defendant's act of attempting to take away the child without going through necessary procedures should not be immediately regarded as an illegal act in which criminal law should intervene.
Even if such an act appears to be somewhat excessive at a particular point of time, its adverse impact on the child is likely to be eliminated through procedures that may follow, as long as the act can be regarded as the exercise of parental authority. Therefore, the appropriateness of such an act should be determined by the family court from the perspective of ensuring the child's welfare, and criminal justice must refrain from intervening in determination to the greatest possible extent.
If either the father or mother with parental authority, without going through family court procedures, takes away a child who lives under the other party's parental authority, such an act can be deemed to be infringing the other party's custody right. However, unless such an act might make it impossible or difficult to solve the dispute at the family court or result in a wrong solution, it is inappropriate for criminal law to overestimate the other party's custody right, which has never been established by public procedures, and immediately intervene in the dispute by reason of the infringement of the custody right, without taking the child's welfare into consideration.
If criminal law intervenes in the dispute immediately upon accusation by the party with parental authority who is deprived of the child against the other party in an emotional confrontation, as seen in this case, the party with parental authority who attempts to take away the child would be arrested. As a result, the other party with parental authority might expect to eliminate the opposing party by taking advantage of the criminal case, without trying procedures (including procedure for preventive measures) at the family court that originally has exclusive jurisdiction over such a dispute, and it cannot be denied that a tendency to choose this way to solve disputes might be generated. This would lead to the situation in which the child would be deprived of the opportunity to choose appropriate custody based on the family court's technical and scientific knowledge, which is never contemplated under the existing justice system. In addition to this, the fact that the child's father or mother is involved in the criminal case would also be, in the long term, detrimental to the child's welfare. (Although incidents by a parent of taking away a child often occurred, it rarely led to criminal cases, partly because it is an offense indictable upon an accusation, and most parents with parental authority who were deprived of a child seem to have refrained from going as far as to bring an accusation, and also largely because the criminal enforcement authorities was reluctant to intervene for the reasons mentioned above. If such a common act of taking away the child were judged to be punishable, the role of effectively solving a dispute over child custody would be transferred from family court procedures that are carried out from the perspective of ensuring the child's welfare to criminal justice procedures that are less likely to allow such consideration. This would cause a serious problem.)
In this case, although the defendant's act of taking away the child inevitably appears to be somewhat excessive, the act did not involve any particularly violent treatment of the child or prevent the family court from bringing about a final solution to the dispute. Therefore, in the relationship with his child, the defendant's act of resorting to force for placing the child in his custody may not be condemned from the viewpoint of socially-accepted thinking.
Based on this reasoning, I consider that the defendant's act of taking away his child should be deemed to be reasonable from the viewpoint of socially-accepted thinking and therefore its illegality should be denied. (With respect to the precedent decision of the Second Petty Bench of the Supreme Court, which is cited by the majority opinion of this decision, I agreed with the court opinion that where either the father or mother with parental authority takes away by force the child who is taken care of by the other party with parental authority, such an act should not be justified. This is because in that case, the perpetrator intended to take the child to a foreign country, which would make it difficult to solve the dispute at the family court, and the manner in which the perpetrator took the child, i.e. taking the child from the hospital where he/she was staying by pulling him/her by the legs and hanging him/her upside down, was dangerous to the child. Thus, the precedent case is completely different from this case.)
For the reasons mentioned above, the judgment of the second instance ruling that the defendant's act should not be justified, has wrongly interpreted laws and contains an apparent violation of laws that has affected the judgment. Therefore, it would amount to a considerable injustice if it were not quashed.

Justice TAKII Shigeo
Justice TSUNO Osamu
Justice IMAI Isao
Justice NAKAGAWA Ryoji
Justice FURUTA Yuki