2022.06.09

2021 (A) 821

Keishu Vol. 76, No. 5

Judgment concerning the period of the statute of limitations for a person not taking possession of another person's property in the case where that person embezzled the property in conspiracy with a person taking possession of the property in the pursuit of social activities

Case charged for embezzlement in the pursuit of social activities

Judgment of the First Petty Bench, quashed and decided by the Supreme Court

Tokyo High Court, Judgment of May 21, 2021

Where a person not taking possession of another person's property embezzled the property in conspiracy with a person taking possession of the property in the pursuit of social activities, the period of the statute of limitations for the person not taking possession is five years (Article 250, paragraph (2), item (v) of the Code of Criminal Procedure), which is specified for the statutory punishment for the crime of embezzlement under Article 252, paragraph (1) of the Penal Code, i.e., imprisonment for not more than five years.

(There is a concurring opinion.)

Article 65, Article 252, paragraph (1), and Article 253 of the Penal Code, Article 250 and Article 337, item (iv) of the Code of Criminal Procedure

Penal Code
(Complicity and Status)
Article 65(1)　When a person collaborates in a criminal act in which the status of the criminal establishes the criminal's punishability, the person is an accomplice even without such status.
(2)　When the severity of a punishment varies depending upon whether or not a criminal has a certain status, a normal punishment is imposed on a person without such status.

(Embezzlement)
Article 252(1)　A person who embezzles property in their possession which belongs to another person, is punished by imprisonment for not more than 5 years.

(Embezzlement in the Pursuit of Social Activities)
Article 253　A person who embezzles property which belongs to another person in the pursuit of social activities, is punished by imprisonment for not more than 10 years.

Code of Criminal Procedure
Article 250(1)　The statute of limitations is completed upon the lapse of the following time periods with regard to crimes causing the death of a person and punishable with imprisonment without work or a greater punishment (except for those punishable by the death penalty):
(i)　30 years for crimes punishable with life imprisonment or life imprisonment without work;
(ii)　20 years for crimes punishable with imprisonment or imprisonment without work whose maximum term is 20 years;
(iii)　10 years for crimes other than the crimes provided for in the preceding two items.
(2)　The statute of limitations is completed upon the lapse of the following time periods with regard to crimes other than crimes causing the death of a person and punishable with imprisonment without work or a greater punishment:
(i)　25 years for offenses punishable by the death penalty;
(ii)　15 years for offenses punishable with life imprisonment or life imprisonment without work;
(iii)　10 years for offenses punishable with imprisonment or imprisonment without work whose maximum term is 15 years or more;
(iv)　7 years for offenses punishable with imprisonment or imprisonment without work whose maximum term is less than 15 years;
(v)　5 years for offenses punishable with imprisonment or imprisonment without work whose maximum term is less than 10 years;
(vi)　3 years for offenses punishable with imprisonment or imprisonment without work whose maximum term is less than 5 years or with a fine;
(vii)　1 year for offenses punishable with penal detention or with a petty fine.

Article 337　The court must bar further prosecution through a judgment if:
(iv)　the statute of limitations expires.

The judgment in prior instance is quashed.

The appeal to the court of second instance is dismissed.

Concerning the argument of violation of a judicial precedent among the reasons for final appeal stated by the defense counsel, NOJIMA Rie

1. The summary of the criminal facts found by the court of first instance is as follows: "C served as the director of Company B (a stock company) and the manager of the company's general affairs and finance department and presided over the company's finance operations, and managed the deposits in the bank account held in the company's name and took custody thereof on behalf of the company in the pursuit of social activities; on July 5, 2012, at the company's office in Tokyo, C instructed an employee of the company, who knew nothing of the situation, to transfer 24,152,933 yen in cash from the abovementioned bank account to the bank account managed by C, et al., for the purpose of consuming the cash for his/her private use; through this process, the accused embezzled the cash in conspiracy with C."

2. The court of first instance held that: according to the facts found as above, the act of the accused falls under Article 60 and Article 253 (crime of embezzlement in the pursuit of social activities) of the Penal Code pursuant to Article 65, paragraph (1) of the same Code; however, as the accused did not have the status of a person taking possession of the cash in question in the pursuit of social activities, the accused was to be subject to the punishment under Article 252, paragraph (1) (crime of embezzlement) of the same Code pursuant to Article 65, paragraph (2) of the same Code (hereinafter this application of the relevant provisions of the Penal Code is referred to as the "application of Article 252, paragraph (1) of the Penal Code pursuant to Article 65, paragraph (2) of the same Code"). Given this, regarding whether the statute of limitations on this case has been completed, the court of first instance ruled that the period of the statute of limitations should be specified on the basis of the punishment to be imposed, and determined that if Article 250 of the Code of Criminal Procedure is applied on the basis of the statutory punishment for the crime of embezzlement (imprisonment for not more than five years), the period of the statute of limitations is five years (paragraph (2), item (v) of the same Article), and therefore that if the five-year period is counted starting from July 5, 2012, the day on which the criminal act of this case ceased, the statute of limitations had been completed as of May 22, 2019, the day on which prosecution for this case was instituted. In conclusion, the court of first instance rendered dismissal by a bar to prosecution of the accused pursuant to Article 337, item (iv) of the same Code.

The public prosecutor filed an appeal against the judgment in first instance, arguing that the period of the statute of limitations for the accused should have been specified on the basis of the statutory punishment for the crime of embezzlement in the pursuit of social activities but the court of first instance specified the period on the basis of the statutory punishment for the crime of embezzlement and found that the statute of limitations had been completed, and thus, the court of first instance made an error in the application of laws and regulations. Based on the criminal facts found by the court of first instance and the application of Article 252, paragraph (1) of the Penal Code pursuant to Article 65, paragraph (2) of the same Code, the court of prior instance held that the period of the statute of limitations should be specified on the basis of the punishment for the crime to be established, and determined that if Article 250 of the Code of Criminal Procedure is applied on the basis of the statutory punishment for the crime of embezzlement in the pursuit of social activities (imprisonment for not more than ten years), the period of the statute of limitations is seven years (paragraph (2), item (iv) of the same Article), and therefore that the statute of limitations on this case had not been completed as of the time of institution of prosecution for this case. In conclusion, the court of prior instance reversed the judgment in first instance on the grounds of the error in the application of laws and regulations, found the same criminal facts as those found by the court of first instance, and sentenced the accused to imprisonment for two years.

3. The defense counsel argues that the determination by the court of prior instance conflicts with 1969 (U) 140, the judgment of the Nagoya High Court of July 29, 1970, Nagoya Koto Saibansho Keiji Hanketsu Sokuho No. 487 (hereinafter referred to as the "Nagoya High Court judgment"). The Nagoya High Court judgment was rendered for the case where a person who did not take possession of another person's property (hereinafter referred to as the "person not taking possession of the property") embezzled the property in conspiracy with a person who took possession of the property in the pursuit of social activities (hereinafter referred to as the "person taking possession of the property in the pursuit of social activities"), and based on the application of Article 252, paragraph (1) of the Penal Code pursuant to Article 65, paragraph (2) of the same Code, the Nagoya High Court ruled that the statute of limitations on the crime of embezzlement should be applied as the statute of limitations for the person not taking possession of the property. The defense counsel thus argues that the determination by the court of prior instance conflicts with the Nagoya High Court judgment (the defense counsel argues that the determination by the court of prior instance also conflicts with a judicial precedent, 1955 (A) 3640, the judgment of the Third Petty Bench of the Supreme Court of November 19, 1957, Keishu Vol. 11, No. 12, at 3073; however, the defense counsel's argument lacks a premise because this judicial precedent did not rule to the effect as argued by the defense counsel).

4. This case is examined as follows. The purpose of the system of statute of limitations is to ensure the balance between the necessity of punishment and legal stability, and it is construed that this may be indicated by the fact that Article 250 of the Code of Criminal Procedure specifies the period of the statute of limitations depending on the severity of punishment. It can be said that the necessity of punishment (punishability of the act) is reflected in the punishment to be imposed on the criminal. In this case, the court of first instance and the court of prior instance made a valid determination that the accused, who was a person not taking possession of the property and who did not possess the status of a person taking possession of the property in the pursuit of social activities, would be subject to the punishment for the crime of embezzlement under Article 252, paragraph (1) of the Penal Code pursuant to Article 65, paragraph (2) of the same Code. In light of the purpose, etc. of the system of statute of limitations, it is appropriate to consider that the period of the statute of limitations for the accused is five years, which is specified for the statutory punishment for the crime of embezzlement, i.e., imprisonment for not more than five years. This means that the statute of limitations for the accused had been completed as of the time of institution of prosecution for this case.

5. According to the above, the court of prior instance erred in the interpretation and application of laws and regulations and made a determination that conflicts with the Nagoya High Court judgment, and this would clearly affect the judgment in prior instance. The defense counsel's argument is well-grounded.

Therefore, without needing to make a determination on the other reasons for final appeal stated by the defense counsel, the judgment in prior instance should inevitably be quashed pursuant to Article 405, item (iii) and the main clause of Article 410, paragraph (1) of the Code of Criminal Procedure. According to the examination above, the judgment in first instance that rendered the dismissal by a bar to prosecution of the accused on the grounds of the completion of the statute of limitations for the accused is justifiable, and as a result, the appeal by the public prosecutor becomes groundless and is therefore dismissed pursuant to the proviso to Article 413, Article 414, and Article 396 of the same Code. The Court unanimously decides as set forth in the main text of the judgment. There is a concurring opinion by Justice YAMAGUCHI Atsushi.

The concurring opinion by Justice YAMAGUCHI Atsushi is as follows.

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

1. The statute of limitations is a system built on the balance between the necessity of punishment and legal stability. The necessity of punishment is represented by the severity of the punishment to be imposed on the accused. Article 65, paragraph (2) of the Penal Code, which imposes a "normal punishment" on an accomplice without a certain status, is a provision intended to reflect the difference in the necessity of the punishment approved in the absence of a certain status in the punishment that may be imposed. Therefore, it can be said that a punishment that better reflects the necessity of punishment should be adopted as the basis for determining the period of the statute of limitations within the framework of restrictions prescribed by law. As a framework of restrictions on such matter for consideration, when a certain circumstance constitutes a statutory reason for increase or reduction of a punishment, a question arises as to Article 252 of the Code of Criminal Procedure, which provides that the "punishment which has not been increased or reduced" is adopted as the basis for the period of the statute of limitations. However, since Article 65, paragraph (2) of the Penal Code, which is discussed as an issue of this case, does not prescribe such statutory reason for increase or reduction, the period of the statute of limitations does not need to be determined on the basis of the punishment applicable before applying Article 65, paragraph (2) of the Penal Code due to the restrictions prescribed by Article 252 of the Code of Criminal Procedure. It is appropriate to specify the period of the statute of limitations on the basis of the punishment applicable after applying Article 65, paragraph (2) of the Penal Code, in which the necessity of punishment is reflected.

2. The court of prior instance considered it to be appropriate in this case to specify the period of the statutes of limitations on the basis of the statutory punishment for the crime of embezzlement in the pursuit of social activities in line with the concept of uniform treatment of accomplices. However, although uniform treatment of accomplices may be conceivable, there is no provision at all that requires the application of a uniform period of the statute of limitations to all cases of complicity. In addition, Article 253, paragraph (2) of the Code of Criminal Procedure, which provides that the statute of limitations runs from the "time when the final act ceased" with regard to the case of complicity, can be understood as only confirming in the case of complicity the general provision under paragraph (1) of the same Article, i.e., the statute of limitations runs from the "time when the criminal act ceased," and it cannot be understood as providing for any special rule for the case of complicity. Furthermore, regarding the case of complicity, Article 254, paragraph (2) of the same Code provides that the suspension of the statute of limitations due to the institution of prosecution against one of the accomplices takes effect against the other accomplices. This is in line with the uniform treatment of accomplices but this concept does not apply to the suspension of the statute of limitations because of other circumstances (see Article 255, paragraph (1) of the same Code). Thus, the concept of uniform treatment of accomplices cannot be regarded as affecting the basis of the system of statute of limitations beyond the requirement derived from the purpose of the system, i.e., having the necessity of punishment reflected in the period of the statute of limitations. Consequently, it is appropriate to adopt the statutory punishment for the crime of embezzlement, which is directed through the application of Article 65, paragraph (2) of the Penal Code, as the basis for determining the period of the statute of limitations.

3. The conclusion of the court opinion regarding this case in which the person not taking possession of the property collaborates with the person taking possession of the property in the pursuit of social activities seems to be a reasonable conclusion in light of the balance with handling the case in which the person taking possession of the property collaborates with the person taking possession of the property in the pursuit of social activities. Specifically, where the person taking possession of the property collaborates with the person taking possession of the property in the pursuit of social activities, Article 65, paragraph (2) of the Penal Code would be applied and the person taking possession of the property would be regarded as an accomplice for the crime of embezzlement (in relation to the person taking possession of the property, the person taking possession of the property in the pursuit of social activities has a status depending on which the severity of punishment is determined, and according to the viewpoint of the judicial precedent, paragraph (1) of the same Article would not apply and only paragraph (2) of the same Article would apply. In consequence, the period of the statute of limitations for the person taking possession of the property would be five years). Typically, the person not taking possession of the property should be subject to a lower level of punishability (necessity of punishment) than the person taking possession of the property. If the period of the statute of limitations for the person not taking possession of the property is specified on the basis of the statutory punishment for the crime of embezzlement in the pursuit of social activities instead of the statutory punishment for the crime of embezzlement, this would mean allowing the imbalance of specifying the period as five years for the person taking possession of the property while specifying the period as seven years for the person not taking possession of the property, which is considered to be unreasonable.

Public Prosecutor, KIYONO Kenichi, attended the trial.

Justice YAMAGUCHI Atsushi

Justice MIYAMA Takuya

Justice YASUNAMI Ryosuke

Justice OKA Masaaki

Justice SAKAI Toru