2006.02.20

2005 (A) 1342

Keishu Vol. 60, No. 2

Decision concerning whether or not, where a person who had caused a child to perform any of the postures listed in Article 2,para.3 of the Act on Punishing Acts Related to Child Prostitution and Child Pornography, and on Protecting Children and recorded the posture using a recording medium for electromagnetic record, stored that electromagnetic record on another recording medium, thereby producing child pornography, these acts also constitute the crime of producing child pornography under Article 7, para.3 of the said Act

Case of the sale of obscene pictures and possession thereof for sale, and violation of the Act on Punishing Acts Related to Child Prostitution and Child Pornography, and on Protecting Children

Decision of the Third Petty Bench, dismissed

Nagoya High Court, Kanazawa Branch, Judgment of June 9, 2005

Where a person who had caused a child to perform any of the postures listed in Article 2, para.3 of the Act on Punishing Acts Related to Child Prostitution and Child Pornography, and on Protecting Children and recorded the posture using a recording medium for electromagnetic record, stored that electromagnetic record on another recording medium, thereby producing child pornography, these acts also constitute the crime of producing child pornography under Article 7, para.3 of the said Act.

Article 2, para.3 and Article 7, paras.1 and 3 of the Act on Punishing Acts Related to Child Prostitution and Child Pornography, and on Protecting Children

Article 2, para.3 of the Act on Punishing Acts Related to Child Prostitution and Child Pornography, and on Protecting Children
(Definition)
(3) The term "child pornography" as used in this Act shall mean photographs, recording medium for electromagnetic record (any record that is produced by electronic means, magnetic means or any other means unrecognizable by natural perceptive function and is used for data processing by a computer; the same shall apply hereinafter.) or other objects, which depict any of the following postures of a child in a visually recognizable manner.
(i) The posture of a child being subject to or engaging in sexual intercourse or similar sexual conduct.
(ii) The posture of a child being touched by another person with the genital organ or touching another person's genital organ, which invokes or stimulates the viewer's sexual urges.
(iii) The posture of a child taking all or some of his/her clothes off, which invokes or stimulates the viewer's sexual urges.

Article 7, paras.1 and 3 of the Act on Punishing Acts Related to Child Prostitution and Child Pornography, and on Protecting Children
(Provision of child pornography)
(1) Any person who offers child pornography shall be punished by imprisonment with work for not more than three years or a fine of not more than three million yen. The same shall apply to any person who offers, via electric telecommunication lines, electromagnetic record or other record containing data that depicts any of the postures of a child listed in Article 2, para.3, in a visually recognizable manner.
(3) In addition to what is prescribed in the preceding paragraph, para.1 shall also apply to any person who has caused a child to perform any of the postures listed in Article 2, para.3, and depicted such postures in photographs, recording medium for electromagnetic record or other objects, thereby producing child pornography of the child.

The appeal to the court of the last resort shall be dismissed.

Among the reasons for appeal to the court of the last resort argued by the counsel OKUMURA Toru, the one alleging violation of Articles 21 and 35 of the Constitution with respect to the provision of Article 7, para.3 of the Act on Punishing Acts Related to Child Prostitution and Child Pornography, and on Protecting Children (hereinafter referred to as the "Act") lacks a premise because the language "caused a child to perform any of the postures" prescribed in the said provision cannot be deemed to be unclear as argued and the provision cannot be deemed to be too broad a restriction of freedom of expression, the one alleging violation of a judicial precedent is irrelevant in this case because the cited judicial precedent addresses a different type of facts, and the rest, including the one alleging violation of the Constitution, are in effect nothing more than claims of violation of laws and regulations or errors in fact-finding, and none of these arguments can be regarded as a reason for appeal to the court of the last resort under Article 405 of the Code of Criminal Procedure.
Where a person who had caused a child to perform any of the postures listed in Article 2, para.3 of the Act and recorded the posture using a recording medium for electromagnetic record, stored the electromagnetic record on another recording medium, thereby producing child pornography, these acts also should be deemed to constitute the crime of producing child pornography. The determination of the court of the second instance that goes along with this reasoning can be accepted as justifiable.

Therefore, according to Article 414 and Article 386, para.1 item 3 of the Code of Criminal Procedure, the decision was rendered in the form of the main text by the unanimous consent of the Justices.

Justice UEDA Toyozo
Justice HAMADA Kunio
Justice FUJITA Tokiyasu
Justice HORIGOME Yukio