2020.03.24

2019 (Kyo) 11

Minshu Vol. 74, No. 3

Decision concerning the case in which an electronic or magnetic recording medium on which information is recorded concerning the photographs of an autopsy conducted as a disposition necessary for expert examination was determined to fall under a document prepared with regard to the legal relationships prescribed in Article 220, item (iii) of the Code of Civil Procedure

Case of appeal with permission against an order to submit a document, etc.

Decision of the Third Petty Bench, dismissed

Sapporo High Court, Decision of March 29, 2019

An electronic or magnetic recording medium, on which information is recorded concerning the photographs of an autopsy conducted by a person who received a request for an expert examination from judicial police personnel with regard to the corpse of the father of the petitioner of an order to submit a document, with the permission of a judge as a disposition necessary for the expert examination, and which is possessed by a local public entity to which the judicial police personnel belongs, falls under a document prepared with regard to the legal relationships prescribed in Article 220, item (iii) of the Code of Civil Procedure in terms of the relationship between the local public entity and the petitioner.

Article 220, item (iii) of the Code of Civil Procedure



Code of Civil Procedure

(Obligation to Submit Documents)

Article 220, item (iii)

In the following cases, the person in possession of the document in question may not refuse to submit that document:

(iii)if the document has been prepared in the interest of the party that will offer the evidence or with regard to the legal relationships between the party that will offer the evidence and the person in possession of the document.

The appeal is dismissed.

The costs of the appeal shall be borne by the appellant.

1. In the action on the merits (Sapporo High Court, 2018 (Ne) No. 59, case seeking compensation for loss or damage) on this case, the adverse party alleges that the adverse party's father, P, died because P fell down and strongly hit his head against the floor surface due to the negligence of a nurse of a hospital established by Hokkaido Railway Company, and seeks the company's compensation for loss or damage based on the employer's liability.

In this case, the adverse party alleged that an electronic or magnetic recording medium, on which information is recorded concerning the photographs of an autopsy of P's corpse conducted by a person who received a request for an expert examination from judicial police personnel who belong to the appellant, which is a local public entity, with the permission of a judge as a disposition necessary for the expert examination, and which is possessed by the appellant (hereinafter referred to as the "Quasi-Document"), falls under the case where the document "has been prepared … with regard to the legal relationships between the party that will offer the evidence and the person in possession of the document" as prescribed in Article 220, item (iii) of the Code of Civil Procedure (hereinafter this part of the same item is to be referred to as the "second sentence of Article 220, item (iii) of the Code of Civil Procedure," and the document in such case is to be referred to as a "document prepared with regard to the legal relationships"), and filed a petition for an order to submit a document on the grounds that the electronic or magnetic recording medium is necessary to prove that P died due to the aforementioned falling.

2. Concerning the point regarding the interpretation and application of the second sentence of Article 220, item (iii) of the Code of Civil Procedure in the reasons for appeal stated by the representatives designated for appeal, YAMAKAWA Yoshihito, et al.

(1) The designated representatives' arguments are to the effect that the determination of the court of prior instance that the Quasi-Document falls under a document prepared with regard to the legal relationships contains an error in the interpretation of laws and regulations and violation of laws and regulations.

(2) In the case where the cause of death of the deceased is disputed in a civil action, if autopsy of the deceased has been conducted, a document stating the result, etc. of the autopsy can serve as important evidence. However, even if a petition for an order to submit a document is filed for such document as a written expert opinion stating the result, etc. of an autopsy conducted by a person who received a request for an expert examination from a public prosecutor, public prosecutor's assistant officer or judicial police personnel, as a disposition necessary for the expert examination, with the permission of a judge (hereinafter referred to as a "judicial autopsy"), the document is considered to fall under the "documents related to the litigation of a criminal case" prescribed in Article 220, item (iv)(e) of the Code of Civil Procedure (see 2019 (Kyo) No. 12, the decision of the Third Petty Bench of the Supreme Court of March 24, 2020) and it cannot be considered to be subject to the obligation to submit under the same item. However, if the aforementioned document falls under a document prepared with regard to the legal relationships, the court may order the submission of the document as long as the custodian's refusal to submit the document extends beyond the scope of the custodian's discretion or falls under the abuse of the custodian's discretion even if the document falls under the "document relating to litigation" prescribed in Article 47 of the Code of Criminal Procedure (see 2003 (Kyo) No. 40, the decision of the Third Petty Bench of the Supreme Court of May 25, 2004, Minshu Vol. 58, No. 5, at 1135).

Whether a document subject to a petition for an order to submit a document falls under a document prepared with regard to the legal relationships should be determined in light of the text and history of the second sentence of Article 220, item (iii) of the Code of Civil Procedure and in consideration of the content, background of the preparation, and purpose, etc. of the document. The Quasi-Document contains the photographs of the judicial autopsy of P that was conducted by a person who received a request for an expert examination from judicial police personnel who belongs to the appellant (hereinafter referred to as the "Judicial Autopsy"). The adverse party should be considered to have a legal interest in that the corpse of P, the adverse party's father, is not unjustly damaged in a disrespectful form, etc. in light of the facts that the bereaved family's approval is, in principle, necessary for conducting an autopsy (Article 7 of the Postmortem Examination and Corpse Preservation Act) and that in the case of conducting a judicial autopsy, if the deceased whose corpse is subject to the autopsy has a lineal relative, etc., the lineal relative, etc. must be notified of the autopsy (Article 225, paragraph (1) and Article 168, paragraph (1) of the Code of Criminal Procedure and Article 101 of the Rules of Criminal Procedure as applied mutatis mutandis pursuant to Article 132 of the same Rules). The approval of the bereaved family is not necessary for a judicial autopsy (Article 7, item (iii) and Article 2, paragraph (1), item (iv) of the Postmortem Examination and Corpse Preservation Act), and the Judicial Autopsy was also conducted in accordance with the procedure prescribed in the Code of Criminal Procedure, irrespective of whether P's bereaved family gave approval therefor. However, the aforementioned interest of the adverse party may be infringed depending on the extent and form of invasion to P's corpse caused by the Judicial Autopsy. The aforementioned photographs were taken to accurately record the process and result of the Judicial Autopsy, and they are considered to serve as materials indicating that the Judicial Autopsy was properly conducted by clarifying the extent and form of invasion to P's corpse caused by the Judicial Autopsy, as well as serving as materials used for criminal investigation purposes. Therefore, the photographs can be considered to function, in part, to clarify the legal relationships concerning whether the Judicial Autopsy constituted infringement of the aforementioned interest of the adverse party.

For the reasons described above, the Quasi-Document should be considered to fall under a document prepared with regard to the legal relationships in terms of the relationship between the appellant and the adverse party.

(3) The determination of the court of prior instance to the same effect is legitimate and can be accepted. The judicial precedents cited in the designated representatives' arguments are irrelevant in this case because they addressed a different type of facts. The arguments made by the designated representatives are not acceptable.

3. Concerning other reasons for appeal

The measure taken by the court of prior instance regarding the points argued by the designated representatives cannot be considered to contain illegality as argued by the designated representatives in light of the development of this case. The judicial precedents cited in the designated representatives' arguments are irrelevant in this case because they addressed a different type of facts. The arguments made by the designated representatives are not acceptable.

Accordingly, the Court unanimously decides as set forth in the main text.

Justice HAYASHI Michiharu

Justice TOKURA Saburo

Justice HAYASHI Keiichi

Justice MIYAZAKI Yuko

Justice UGA Katsuya