2021.06.23

2020 (A) 1528

Keishu Vol. 75, No. 7

Decision concerning the applicability of Article 246, paragraph (1) of the Penal Code to the case where prosecution was instituted for the crime of fraud in relation to the fact that a person deceived another person and thereby received the grant of a subsidy, etc. or indirect subsidy, etc. and the relevant act falls under the crime of violation of Article 29, paragraph (1) of the Act on Regulation of Execution of Budget Pertaining to Subsidies, etc.

Case charged for fraud

Decision of the Third Petty Bench, dismissed

Takamatsu High Court, Judgment of October 8, 2020

Where prosecution was instituted for the crime of fraud in relation to the fact that a person deceived another person and thereby received the grant of a subsidy, etc. or indirect subsidy, etc., the court may apply Article 246, paragraph (1) of the Penal Code in relation to that fact even if the relevant act falls under the crime of violation of Article 29, paragraph (1) of the Act on Regulation of Execution of Budget Pertaining to Subsidies, etc.

Article 246, paragraph (1) of the Penal Code and Article 29, paragraph (1) of the Act on Regulation of Execution of Budget Pertaining to Subsidies, etc.

Penal Code
(Fraud)
Article 246　(1)　A person who defrauds another person of property is punished by imprisonment for not more than 10 years.

Act on Regulation of Execution of Budget Pertaining to Subsidies, etc.
Article 29 (1) A person who received the grant of a subsidy, etc., or received the grant of an indirect subsidy, etc. or financing, by deception or other wrongful means is punished by imprisonment for not more than five years or a fine of not more than 1,000,000 yen, or both.

The final appeal is dismissed.

Out of the number of days of pre-sentencing detention for this instance, 140 days are included in the calculation of the sentence.

The reasons for final appeal stated by the defense counsel, SUZUKI Toshihiko, are arguments of an erroneous finding of facts, and do not constitute any of the reasons for a final appeal as referred to in Article 405 of the Code of Criminal Procedure.

Incidentally, it is reasonable to consider that where prosecution was instituted for the crime of fraud in relation to the fact that the accused deceived a person and thereby received the grant of a subsidy, etc. or indirect subsidy, etc. (Article 2, paragraphs (1) and (4) of the Act on Regulation of Execution of Budget Pertaining to Subsidies, etc.), the court may apply Article 246, paragraph (1) of the Penal Code in relation to that fact even if the relevant act committed by the accused falls under the crime of violation of Article 29, paragraph (1) of the Act on Regulation of Execution of Budget Pertaining to Subsidies, etc. The determination of the court of prior instance to the same effect is legitimate and can be accepted.

Accordingly, in accordance with Article 414, Article 386, paragraph (1), item (iii), and the proviso to Article 181, paragraph (1) of the Code of Criminal Procedure and Article 21 of the Penal Code, the Court unanimously decides as set forth in the main text of the decision.

Justice UGA Katsuya

Justice TOKURA Saburo

Justice MIYAZAKI Yuko

Justice HAYASHI Michiharu

Justice NAGAMINE Yasumasa