2020.03.10

2018 (A) 1757

Keishu Vol. 74, No. 3

Judgment concerning Article 2, paragraph (2) of the Supplementary Provisions of the Act Partially Amending the Penal Code (Act No. 72 of 2017) that provides for a transitional measure for the same Act, which defined the crimes of forcible indecency, etc. as crimes prosecutable without criminal complaint, and Article 39 of the Constitution of Japan

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, forcible indecency, violation of the Tokushima Prefectural Ordinance for the Sound Development of Youth, and violation of the Tokyo Metropolitan Government Ordinance for the Sound Development of Youth

Judgment of the Third Petty Bench, dismissed

Hiroshima High Court, Judgment of October 23, 2018

Article 2, paragraph (2) of the Supplementary Provisions of the Act Partially Amending the Penal Code (Act No. 72 of 2017) that defined the crimes of forcible indecency, etc. as crimes prosecutable without criminal complaint does not go against Article 39 of the Constitution of Japan and its purport in that the relevant provisions provide, as a transitional measure for the same Act, that in the case where crimes newly defined as those prosecutable without criminal complaint under the same Act were committed prior to the enforcement of the same Act, such crimes are also prosecutable even without criminal complaint after the enforcement of the same Act, except those that have already ceased to be subject to prosecution under law at the time of the enforcement of the same Act.

Article 39 of the Constitution of Japan, Article 2, paragraph (2) of the Supplementary Provisions of the Act Partially Amending the Penal Code (Act No. 72 of 2017), and Article 180, paragraph (1) of the Penal Code (prior to amendment by Act No. 72 of 2017)



The Constitution of Japan

Article 39

No person shall be held criminally liable for an act which was lawful at the time it was committed, or of which he has been acquitted, nor shall he be placed in double jeopardy.



Act Partially Amending the Penal Code (Act No. 72 of 2017)

Supplementary Provisions

Article 2, paragraph (2)

(2)Crimes which were provided as being prosecutable only upon criminal complaint pursuant to the provisions of Article 180 or the main clause of Article 229 of the Penal Code prior to amendment by this Act (hereinafter referred to as the "Former Code") (excluding the crimes referred to in Article 224 of the Former Code, the crimes referred to in Article 227, paragraph (1) of the Former Code that were committed for the purpose of aiding a person who committed the crimes referred to in Article 224 of the Former Code, and the attempts of these crimes) but which were committed prior to the enforcement of this Act are prosecutable even without criminal complaint after the enforcement of this Act, except those that have already ceased to be subject to prosecution under law at the time of the enforcement of this Act.

Penal Code (prior to amendment by Act No. 72 of 2017)

Article 180, paragraph (1)

(1)The crimes prescribed for in Articles 176 through Article 178 and attempts of the above-mentioned crimes shall be prosecuted only upon complaint.

The final appeal is dismissed.

1. Concerning the argument of unconstitutionality of the provisions of Article 2, paragraph (2) of the Supplementary Provisions of the Act Partially Amending the Penal Code (Act No. 72 of 2017; hereinafter referred to as the "Act") out of the reasons for final appeal stated by the counsel, OKUMURA Toru

The counsel argues that Article 2, paragraph (2) of the Supplementary Provisions of the Act is in violation of Article 39 of the Constitution of Japan that prohibits retroactive punishment in that the relevant provisions provide that the crimes of forcible indecency and other crimes, which were provided as crimes prosecutable only upon criminal complaint under the Penal Code prior to amendment by the Act, are also prosecutable without criminal complaint after the enforcement of the Act even if they were committed prior to the enforcement of the Act.

However, the system of crimes prosecutable only upon criminal complaint sets a criminal complaint as a requirement for the institution of prosecution with regard to certain types of crimes from the perspective of respecting victims' intentions concerning the prosecution and punishment of criminals, and the Act, which changes crimes that were prosecutable only upon criminal complaint to crimes prosecutable without criminal complaint, does not retroactively change the evaluation of the illegality of relevant acts and weight of responsibility. Article 2, paragraph (2) of the Supplementary Provisions of the Act provides that relevant acts committed prior to the enforcement of the Act are also treated as crimes prosecutable without criminal complaint, except those that have already been ceased to be subject to prosecution under law at the time of the enforcement of the Act, and it does not extremely destabilize legal positions that have already arisen for persons who can be either a suspect or the accused.

Therefore, Article 2, paragraph (2) of the Supplementary Provisions of the Act is not in violation of Article 39 of the Constitution of Japan and is also not found to go against the purport thereof in that the relevant provisions provide, as a transitional measure for the Act that amended the Penal Code and defined the crimes of forcible indecency, etc. as crimes prosecutable without criminal complaint, that in the case where crimes newly defined as those prosecutable without criminal complaint under the Act were committed prior to the enforcement of the Act, such crimes are also prosecutable even without criminal complaint after the enforcement of the Act, except those that have already ceased to be subject to prosecution under law at the time of the enforcement of the Act. Such interpretation should obviously be adopted in light of the purport of the judicial precedents of this Court (1948 (Re) No. 2124, the judgment of the Grand Bench of the Supreme Court of April 26, 1950, Keishu Vol. 4, No. 4, at 700; 1954 (A) No. 215, the judgment of the Grand Bench of the Supreme Court of June 1, 1955, Keishu Vol. 9, No. 7, at 1103). Therefore, the counsel's arguments lack a premise.

2. Concerning other reasons for final appeal

Of other reasons for final appeal stated by the counsel, OKUMURA Toru, the argument of unconstitutionality of the provisions of Article 176 of the Penal Code prior to amendment by the Act lacks a premise because it cannot be said that the concept of an "indecent act" referred to in the same Article is unclear, and other arguments, including the arguments of violation of the Constitution of Japan and violation of a judicial precedent, are substantially arguments of a mere violation of laws and regulations, and the reasons for final appeal stated by the counsel, SONODA Hisashi, including the argument of violation of the Constitution of Japan, are substantially arguments of a mere violation of laws and regulations. Therefore, both of these reasons for final appeal do not constitute any of the reasons for a final appeal as referred to in Article 405 of the Code of Criminal Procedure.

3. Accordingly, in accordance with Article 408 of the Code of Criminal Procedure, the Court unanimously decides as set forth in the main text.

Justice MIYAZAKI Yuko

Justice TOKURA Saburo

Justice HAYASHI Keiichi

Justice UGA Katsuya

Justice HAYASHI Michiharu