2020.01.23

2017 (A) 2073

Keishu Vol. 74, No. 1

Judgment concerning the process in which the court of second instance quashes the judgment in first instance that acquitted the accused on the grounds of a lack of proof of crime, without conducting any examination of facts by itself, and makes a judgment to convict the accused; and the proviso to Article 400 of the Code of Criminal Procedure

Case charged for fraud, theft, and attempt of fraud

Judgment of the First Petty Bench, quashed and remanded

Tokyo High Court, Judgment of November 17, 2017

With regard to the precedent judgments of the Supreme Court (1951 (A) No. 2436, the judgment of the Grand Bench of the Supreme Court of July 18, 1956, Keishu Vol. 10, No. 7, at 1147, and 1952 (A) No. 5877, the judgment of the Grand Bench of the Supreme Court of September 26, 1956, Keishu Vol. 10, No. 9, at 1391), which ruled that in the case where the court of first instance acquitted the accused on the grounds of a lack of proof for finding the existence of the charged fact, if the court of second instance immediately determines the existence of the charged fact and convicts the accused only on the basis of the case records and the evidence examined by the court of first instance, without conducting by itself any examination of facts, such process followed by the court of second instance is impermissible under the proviso to Article 400 of the Code of Criminal Procedure, even in consideration of the circumstances pointed out by the court of prior instance such as the drastic changes in the system and enforcement of the Code of Criminal Procedure, it is still not found that these judicial precedents need to be modified.

Article 400 of the Code of Criminal Procedure, Articles 31 and 37 of the Constitution



Code of Criminal Procedure

Article 400

When the court of second instance reverses the judgment of the court of first instance on grounds other than those set forth in the preceding two articles, a judgment shall be rendered to remand the case to the court of first instance, or to transfer the case to a court which is equal to the court of first instance; provided, however, that the court of second instance may render an additional judgment on the case when it finds that it possible to do so based on the case records and the evidence examined by the court of first and second instances.

Constitution

Article 31

No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.

Article 37

(1)In all criminal cases the accused shall enjoy the right to a speedy and public trial by an impartial tribunal.

(2)He shall be permitted full opportunity to examine all witnesses, and he shall have the right of compulsory process for obtaining witnesses on his behalf at public expense.

(3)At all times the accused shall have the assistance of competent counsel who shall, if the accused is unable to secure the same by his own efforts, be assigned to his use by the State.

The judgment in prior instance is quashed.

The case is remanded to the Tokyo High Court.

Concerning the reasons for final appeal stated by the public prosecutors and those stated by the defense counsel, which argue violation of judicial precedents

1. The court of first instance convicted the accused in one theft case, one fraud case, and three attempted fraud cases, for all of which the date of commission was specified as in May 2015, and sentenced the accused to imprisonment for two years and six months, with suspension of execution of the sentence for four years, whereas the same court acquitted the accused of the charged facts as specified in the charging instrument dated June 28, 2016, for all of which the date of commission was specified as in March 2015 (three fraud cases; hereinafter referred to as the "Charged Facts").

The summary of the Charged Facts is that the accused committed the following acts at the same home appliances mass merchandiser: (1) the accused intended to acquire a point card with a credit card function by fraudulent means, while pretending to be A by using the health insurance card certifying A as the insured and a credit card issued to A, both of which the accused had acquired by wrongful means, and with this intention, the accused entered "A" in the name entry screen on the membership application terminal, and presented, in the guise of A, the health insurance card certifying A as the insured and the credit card issued to A, to an employee of the company subcontracted to deal with card issuance and other services, thereby applying for the issuance of a point card with a credit card function and receiving one such point card; (2) the accused offered to purchase four items including two wallets by showing, in the guise of A, that point card to a staff member of the abovementioned home appliance mass merchandiser and received these items; and (3) the accused offered to purchase one game machine by showing, in the guise of A, the same point card to a staff member of the same merchandiser and received this item. Thus, the accused acquired these items by fraudulent means.

2. Both the accused and the public prosecutors filed an appeal against the judgment in first instance, alleging errors in the findings of fact.

While the court of prior instance rejected the allegation of the accused that the accused was not the criminal for any of the facts of the crime and therefore should be found not guilty, it quashed the judgment in first instance on the grounds of errors in the findings of fact, holding that: with regard to the Charged Facts, the court of first instance erred in assessing the inferential power of the indirect facts that would lead to an inference of the criminality of the accused or the indirect facts that would support the inferential power of the former, or the probative value of the evidence examined in the first instance, and moreover, it assessed these matters separately and failed to make a comprehensive assessment, which resulted in drawing a conclusion that there remained a reasonable doubt to find the accused to be the criminal; such findings and determination made by the court of first instance should inevitably be found to be unreasonable in light of the rules of logic, rule of thumb, etc. Furthermore, the court of prior instance made a mention of the precedent judgments of the Supreme Court (1951 (A) No. 2436, the judgment of the Grand Bench of the Supreme Court of July 18, 1956, Keishu Vol. 10, No. 7, at 1147, and 1952 (A) No. 5877, the judgment of the Grand Bench of the Supreme Court of September 26, 1956, Keishu Vol. 10, No. 9, at 1391; hereinafter collectively referred to as the "Judicial Precedents"), which ruled that in the case where the court of first instance acquitted the accused on the grounds of a lack of proof for finding the existence of the charged fact, if the court of second instance immediately determines the existence of the charged fact and convicts the accused only on the basis of the case records and the evidence examined by the court of first instance, without conducting by itself any examination of facts, such process followed by the court of second instance is impermissible under the proviso to Article 400 of the Code of Criminal Procedure. However, the court of prior instance held that the validity of the interpretation presented in the Judicial Precedents with regard to the proviso to that Article is questionable today. Accordingly, the court of prior instance decided the case by itself, holding that it was able to make a judgment immediately although it had not conducted any examination of facts at all, and made a judgment to also convict the accused of the Charged Facts and sentenced him or her to imprisonment for two years and six months.

3. In the abovementioned judgment of the Grand Bench of the Supreme Court of July 18, 1956, the Supreme Court held that even after the case was moved to the court of second instance, the accused still has the rights guaranteed under the provisions of the Constitution including Articles 31 and 37, and can benefit from the principles of direct examination and oral argument at the trial court, and therefore, the accused has the right not to be convicted subject to the determination of the fact of the crime without being given an opportunity to be tried in an open court, undergo the due procedure to examine evidence before the court, and present his or her opinion on the examination. The Supreme Court then stated that: "in the case where the court of first instance acquitted the accused without determining the existence of the fact for which the accused was charged, if the court of second instance quashes the judgment in first instance and immediately determines the existence of the charged fact regarding the charged case and convicts the accused only on the basis of the case records and the evidence examined by the court of first instance, without conducting examination of facts by itself, as what happened in the present case, such process followed by the court of second instance amounts to violating the abovementioned constitutional rights of the accused and prejudicing the principles of direct examination and oral argument, and hence, in such case, it should be considered to be impermissible to apply the proviso to Article 400 of the Code of Criminal Procedure." In conclusion, the Supreme Court quashed the judgment in prior instance and remanded the case to the court of first instance. The abovementioned judgment of the Grand Bench of the Supreme Court of September 26, 1956, ruled to the same effect. Subsequently, through the accumulation of judgments of the Supreme Court that followed the Judicial Precedents, the interpretation of the proviso to Article 400 of the Code of Criminal Procedure that takes into consideration the spirit of Articles 31 and 37 of the Constitution and the purpose of the principles of direct examination and oral argument has been established in the form of the common practice wherein, if the court of first instance has acquitted the accused without determining the existence of the fact for which the accused is charged, the court of second instance is required to conduct examination of facts if it is to quash the judgment in first instance and make a finding of the fact of the crime, so that the rights and interest of the accused can be protected.

In the present case, the court of prior instance indicated the following points as the reasons for modifying the Judicial Precedents: as a result of the drastic changes in the system and enforcement of the Code of Criminal Procedure, a judgment in first instance can be quashed on the grounds of an error in the finding of fact only when the court of first instance conducted a trial based on selected evidence and the court of second instance can specifically point out that the finding by the court of first instance is unreasonable in light of the rules of logic, rule of thumb, etc.; following the introduction of the system of appointment of defense counsel by the court before institution of prosecution and the use of audio and video recordings in the interrogation process, accused persons more often exercise the right to silence; and if the court of second instance is supposed to examine evidence at the request of the public prosecutor in order to avoid violating the Judicial Precedents, it would be bound to adopt evidence for which neither the necessity to conduct an interrogation nor any compelling reason for the failure to conduct an interrogation before the conclusion of oral argument at the court of first instance can be found. Giving these reasons, the court of prior instance held that the validity of the interpretation presented in the Judicial Precedents is now questionable, and that even if the court of second instance makes a judgment without directly conducting examination of facts, this is unlikely to cause any substantial problem in the protection of the rights and interests of the accused.

However, the changes in the system and enforcement of the Code of Criminal Procedure pointed out by the court of prior instance are intended to ensure the substantial implementation of the fundamental principles of criminal trial, i.e., the principles of direct examination and oral argument, based on the ideal of placing emphasis on proceedings in the trial, through the practice wherein the court of first instance plays the central role in conducting fulfilling examination and determination to the extent necessary for deciding the existence or absence of the fact of the crime and the sentence to be given, with the objective of achieving better criminal trials upon the introduction of the Saiban-in (lay judge) system, and these changes cannot be considered to diminish the validity of the Judicial Precedents that were also drawn from the same ideal of the principles of direct examination and oral argument. Therefore, even in consideration of the circumstances pointed out by the court of prior instance as mentioned above, it is still not found that the Judicial Precedents need to be modified.

In the present case, the court of prior instance quashed the judgment in first instance on the grounds of errors in the findings of fact because the court of first instance acquitted the accused without determining the existence of the Charged Facts, and it made a judgment to convict the accused by finding the Charged Facts without conducting any examination of facts at all by itself. Thus, the court of prior instance ruled contrary to the Judicial Precedents, and therefore the judgment in prior instance should inevitably be quashed.

4. For the reasons stated above, the arguments of the public prosecutors and those of the defense counsel on this issue are well-grounded. Consequently, while omitting to decide on the other reasons for final appeal stated by the defense counsel, the Court quashes the judgment in prior instance pursuant to Article 405, item (ii) and the main clause of Article 410, paragraph (1) of the Code of Criminal Procedure, and remands the case to the Tokyo High Court pursuant to the main clause of Article 413 of the same Code. Accordingly, the Court unanimously decides as set forth in the main text of the judgment.

Justice YAMAGUCHI Atsushi

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice MIYAMA Takuya