2020.07.30

2018 (A) 1528

Keishu Vol. 74, No. 4

Judgment concerning the meaning of the act of "monitoring the target person near his or her residence, etc." referred to in Article 2, paragraph (1), item (i) of the Anti-Stalking Act (prior to the amendment by Act No. 102 of 2016)

Case charged for counterfeiting private documents with seal and uttering thereof, and violation of the Anti-Stalking Act

Judgment of the First Petty Bench, dismissed

Fukuoka High Court, Judgment of September 20, 2018

In order for an act to constitute "monitoring the target person near his or her residence, etc." referred to in Article 2, paragraph (1), item (i) of the Anti-Stalking Act (prior to the amendment by Act No. 102 of 2016), it is required that the act in question is performed at a certain place, that is, a place which is near the "residence, etc." of a particular person toward whom one has feelings of affection, etc. or a person who has a close relationship with such particular person in social life (the target person), by observing the target person's action at that certain place, even when any device is used in performing that act.

Article 2, paragraph (1), item (i) of the Anti-Stalking Act (prior to the amendment by Act No. 102 of 2016)



Anti-Stalking Act (prior to the amendment by Act No. 102 of 2016)

Article 2, paragraph (1), item (i)

(1) The term "following, etc." as used in this Act means conducting any of the acts set forth in the following items, targeting a particular person or a particular person's spouse, linear relative, or relative living together, or any other person who has a close relationship with a particular person in social life, for the purpose of satisfying one's feelings of affection, such as romantic feelings, toward the particular person, or satisfying one's feelings of resentment due to the failure to satisfy such romantic feelings:

(i) following, waiting in ambush or getting in the way of the target person, monitoring the target person near his or her residence, workplace, school or in any other place where the target person is usually present (hereinafter referred to as the "residence, etc."), or barging into the target person's residence, etc.

The final appeal is dismissed.

As the reasons for final appeal, the public prosecutor argues that the determination by the court of prior instance with regard to "monitoring" prescribed in Article 2, paragraph (1), item (i) of the Anti-Stalking Act (prior to the amendment by Act No. 102 of 2016; hereinafter referred to as the "Anti-Stalking Act") is in conflict with the judgment of the Fukuoka High Court in 2017 (U) No. 175, September 22, 2017, the preliminary high court case report on criminal cases of 2017, on page 282, and it contains violation of laws and regulations that affects the judgment, and therefore that it would be clearly contrary to justice if the judgment in prior instance were not quashed.

The court of prior instance determined that the accused's act of secretly installing a GPS device on the car used by his wife, who had been living separately at that time (hereinafter simply referred to as the "wife"), and searching and acquiring the car's location information many times does not constitute "monitoring" near the "place where the target person is usually present" as referred to in Article 2, paragraph (1), item (i) of the Anti-Stalking Act, and that the court of first instance made an error in the application of laws and regulations by applying that item to the accused's act mentioned above. This determination of the court of prior instance is in conflict with the judicial precedent cited by the public prosecutor in which the act charged in the past case of the same type as this case was found to constitute "monitoring" prescribed in that item.

However, Article 2, paragraph (1), item (i) of the Anti-Stalking Act provides for an act of performing an act of "monitoring the target person near his or her residence, workplace, school or in any other place where the target person is usually present (residence, etc.)," targeting a particular person toward whom one has feelings of affection, etc. or a person who has a close relationship with such particular person in social life, and in light of these provisions and purport thereof, it is reasonable to consider that in order for an act to constitute "monitoring the target person near his or her residence, etc.," it is required that the act in question is performed at a certain place, that is, a place which is near the "residence, etc." of the target person, by observing the target person's action at that certain place, even when any device is used in performing that act. According to the findings of the court of first instance, although the accused installed a GPS device on the abovementioned car at the parking space that the wife rented to park the car, the place where the car's location information was searched and acquired was not near that parking space. In addition, the location information of the car that moves around away from the parking space cannot be regarded as the information of the wife's action near the parking space. Accordingly, the court of prior instance concluded that the accused's act does not satisfy the requirement mentioned above and therefore does not constitute an act of "monitoring the target person near his or her residence, etc." This conclusion of the court of prior instance is justifiable and can be upheld.

Consequently, the Court finds it reasonable to change the judicial precedent cited by the public prosecutor pursuant to Article 410, paragraph (2) of the Code of Criminal Procedure and maintain the judgment in prior instance. The violation of the judicial precedent argued by the public prosecutor, in the end, cannot be the reason for quashing the judgment in prior instance.

Accordingly, in accordance with Article 408 of the Code of Criminal Procedure, 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