2020.01.27

2017 (A) 242

Keishu Vol. 74, No. 1

Decision concerning the meaning of the term "child pornography" referred to in Article 2, paragraph (3) of the Act on Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, and the Protection of Children (prior to amendment by Act No. 79 of 2014)

Case charged for violation of the Act on Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, and the Protection of Children

Decision of the First Petty Bench, dismissed

Tokyo High Court, Judgment of January 24, 2017

1. The term "child pornography" referred to in Article 2, paragraph (3) of the Act on Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, and the Protection of Children (prior to amendment by Act No. 79 of 2014; hereinafter referred to as the "Child Pornography Act") means photographs, recording medium containing electronic or magnetic records or any other media which depict any images of a child who is real, in a form recognizable by the sense of sight, and it does not include such media which depict any image of a child who is not real.

2. In order to establish the crime of producing child pornography under Article 7, paragraph (5) of the Act on Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, and the Protection of Children (prior to amendment by Act No. 79 of 2014; hereinafter referred to as the "Child Pornography Act"), it is sufficient to have produced a medium which depicts any of the images of a child set forth in the items of Article 2, paragraph (3) of the same Act, in a form recognizable by the sense of sight, for the purpose of performing the act set forth in paragraph (4) of that Article, and it is not required that the person depicted in that medium was under 18 years of age at the time of its production.

(There is a concurring opinion.)

Article 2, paragraph (3) and Article 7, paragraph (5) of the Act on Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, and the Protection of Children (prior to amendment by Act No. 79 of 2014)



Act on Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, and the Protection of Children

(Definitions)

Article 2, paragraph (3)

(3) The term "Child Pornography" as used in this Act means photographs, recording medium containing electronic or magnetic records (meaning a record used in computerized information processing which is created in electronic form, magnetic form, or any other form that cannot be perceived by the human senses; the same applies hereinafter) or any of the following medium which depicts the image of a Child, in a form recognizable by the sense of sight:

(i) any image of sexual intercourse or any conduct similar to sexual intercourse with a Child or between Children;

(ii) any image of a Child having the Genital Organs, etc. touched by another person or of a Child touching another person's Genital Organs, etc. which arouses or stimulates sexual desire; or

(iii) any image of a Child wholly or partially naked which arouses or stimulates sexual desire.

(Possession and Provision of Child Pornography and Other Related Acts)

Article 7, paragraph (5)

(5) Any person who produces, possesses, transports, imports to or exports from Japan Child Pornography for the purpose of the acts prescribed in the preceding paragraph is punished by the same penalty prescribed in the same paragraph. The same applies to any person who retains the electronic or magnetic records prescribed in the preceding paragraph for the purpose of the same acts.

The final appeal is dismissed.

The reasons for final appeal stated by the defense counsel, YAMAGUCHI Takashi, et al., including the arguments of violation of the Constitution and violation of a judicial precedent, are in effect arguments of a mere violation of laws and regulations or errors in the finding of fact, and none of them constitute any of the reasons for final appeal as referred to in Article 405 of the Code of Criminal Procedure.

In consideration of the defense counsel's arguments, the Court makes a determination by its own authority.

Article 2, paragraph (1) of the Act on Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, and the Protection of Children (prior to amendment by Act No. 79 of 2014; hereinafter referred to as the "Child Pornography Act") defines the term "child" as a person under 18 years of age. The term "child pornography" defined in paragraph (3) of that Article should be interpreted as meaning photographs, recording medium containing electronic or magnetic records or any other media which depict any images of a child who is real, in a form recognizable by the sense of sight, and not including such media which depict any image of a child who is not real.

According to the findings of the judgment in prior instance and those of the judgment in first instance upheld by the former, the following facts are found. The accused created three pieces of image data of computer graphics (hereinafter referred to as the "CG Images") with the use of an image editor, while using, as material, the image data of three photographs contained in photography books of which the first editions were published from 1982 to 1984 (hereinafter these three photographs or their image data are referred to as the "Photographs"), and saved and stored the files containing the CG Images on a hard disk for the purpose of providing them to unspecified or a large number of persons (hereinafter the act of the accused as described above is referred to as the "act in question"). The Photographs were taken of a person under 18 years of age, who is real, such as an image of the person lying down, not wearing any clothes, and the CG Images depict the images of the child expressed in the Photographs.

According to the facts mentioned above, the determination of the court of prior instance is justifiable for upholding the judgment in prior instance ruling that the hard disk on which the accused saved and stored the files containing the CG Images falls within the scope of child pornography, and that the act in question constitutes the crime of producing child pornography under Article 7, paragraph (5) of the Child Pornography Act.

The defense counsel argue that in order to establish the crime of producing child pornography under Article 7, paragraph (5) of the Child Pornography Act, it is required that the person depicted in the relevant child pornography existed as a real person under 18 years of age at the time of the production of the child pornography. However, it should be said that in order to establish the crime of producing child pornography under that paragraph, it is sufficient to have produced a medium which depicts any of the images of a child set forth in the items of Article 2, paragraph (3) of the same Act, in a form recognizable by the sense of sight, for the purpose of performing the act set forth in paragraph (4) of that Article, and it is not required that the person depicted in that medium was under 18 years of age at the time of its production. The defense counsel's arguments are groundless.

Accordingly, in accordance with Article 414 and Article 386, paragraph (1), item (iii) of the Code of Criminal Procedure, the Court unanimously decides as set forth in the main text of the decision. There is a concurring opinion by Justice YAMAGUCHI Atsushi.

The concurring opinion by Justice YAMAGUCHI Atsushi is as follows.

I totally agree with the court opinion, but I would like to give some supplementary comments.

In order for a medium to be child pornography prescribed in Article 2, paragraph (3) of the Child Pornography Act, it is sufficient that the object depicted in the medium in a form recognizable by the sense of sight is any of the images prescribed in the items of that paragraph regarding a child who is real. The act of producing child pornography regulated under Article 7 of the Child Pornography Act is punishable as an act that would have a harmful effect on a child's mind and body. An act of recording a sexual image of a child who is real in itself constitutes sexual exploitation, and what is more, if the sexual image thus recorded is placed under the gaze of other persons, this could cause further sexual exploitation. The crime of producing child pornography is punishable directly on the basis of violation of children's interest in not being made the target of such sexual exploitation. Such interest is not only recognized while the child depicted in the medium remains a child, but it continues to deserve to be protected equally even after the child reaches the age of 18. The Child Pornography Act aims to protect the rights of children by such means as punishing acts of producing child pornography which actually violate such interest.

Justice MIYAMA Takuya

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice YAMAGUCHI Atsushi