2011.08.24

2010 (A) 1721

Keishu Vol. 65, No. 5

Decision concerning the case where customers did not know of the fact that there was an intermediary for prostitution, and whether or not the crime of acting as an intermediary as provided in Article 6, paragraph (1) of the Anti-Prostitution Act is established in such case

Case charged for violation of the Anti-Prostitution Act

Decision of the First Petty Bench, dismissed

Osaka High Court, Judgment of September 7, 2010

The crime of acting as an intermediary for prostitution provided in Article 6, paragraph (1) of the Anti-Prostitution Act is established as long as the accused acted as an intermediary to arrange prostitution, and it is not required that customers knew of the fact that there was an intermediary.

Article 6, paragraph (1) of the Anti-Prostitution Act
A person who has acted as an intermediary for prostitution shall be punished by imprisonment with work for not more than two years or a fine of not more than 50,000 yen.

The final appeal is dismissed.

The reasons for final appeal argued by the defense counsel, YORO Shingo, including the reasons alleging violation of the Constitution and violation of juridical precedent, are in effect assertions of unappealable violation of laws and regulations, errors in fact finding or inappropriate sentencing; among the reasons for final appeal argued by the accused, the reason alleging violation of judicial precedent regarding the illegally collected evidence is irrelevant in this case because the cited judicial precedent addresses a different type of facts, and the rest, including the reasons alleging violation of the Constitution and violation of judicial precedent, are in effect assertions of unappealable violation of laws and regulations, errors in fact finding or inappropriate sentencing; and none of these reasons for final appeal can be regarded as a reason for final appeal permissible under Article 405 of the Code of Criminal Procedure.
According to the findings of the judgment in prior instance and of the judgment in first instance affirmed by the former, as well as the case records, the outline of the facts of the case is as follows. The accused operated a dating club under the scheme of soliciting customers via what is called online dating sites and sending prostitutes to them, and in conspiracy with male employees of the club, the accused introduced female employees of the club to customers as prostitutes. When posting messages on online dating sites to solicit customers, the accused and male employees themselves pretended to be female prostitutes, and when they introduced prostitutes to customers, they dispatched female employees directly to customers. Thus, the accused and male employees concealed the presence of themselves from customers. Because of this, customers did not know of the fact that the accused and male employees acted as an intermediary in introducing female employees to them as prostitutes. The defense counsel and the accused argue that given such facts, the crime of acting as an intermediary for prostitution provided in Article 6, paragraph (1) of the Anti-Prostitution Act cannot be established. However, it is appropriate to construe that the crime of acting as an intermediary for prostitution provided in Article 6, paragraph (1) of the Anti-Prostitution Act is established as long as the accused acted as an intermediary to arrange prostitution, and it is not required that customers knew of the fact that there was an intermediary. Consequently, the determination of the court of prior instance is justifiable in that it maintained the judgment in first instance finding the accused and male employees to be guilty of the crime of acting as an intermediary as provided in said paragraph.

Therefore, according to Article 414, Article 386, paragraph (1), item (iii), and the proviso to Article 181, paragraph (1) of the Code of Criminal Procedure, the decision has been rendered in the form of the main text by the unanimous consent of the Justices.

Justice SHIRAKI Yu
Justice MIYAKAWA Koji
Justice SAKURAI Ryuko
Justice KANETSUKI Seishi
Justice YOKOTA Tomoyuki