2023.03.24

2022 (A) 196

Keishu Vol. 77, No. 3

(Criminal Case) Judgment upon the case concerning the definition of "abandonment" as described in Article 190 of the Penal Code

Case under public prosecution for abandonment of corpses

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

Fukuoka High Court, Judgment of January 19, 2022

1. "Abandonment" as described in Article 190 of the Penal Code means the act of abandoning or concealing a corpse, etc. in a manner that cannot be regarded as a customary burial, etc.

2. The act of the defendant to conceal the corpses: by giving birth to the infants in her room, wrapping the corpses of the infants in towels soon after their deaths, putting the same in a cardboard box, and placing the same on a shelf in the room, the defendant created a situation where it would be difficult for other persons to discover the corpses. Considering the place where such act was committed, the method of packing and placing the corpses, etc., such act does not constitute "abandonment" as described in Article 190 of the Penal Code.

(Concerning 1 and 2) Article 190 of the Penal Code

Penal Code

(Destruction of Corpses)
Article 190 A person who damages, abandons or unlawfully possesses a corpse, the ashes or hair of a dead person, or an object placed in a coffin is punished by imprisonment for not more than 3 years.

The judgment in prior instance and the judgment in first instance are quashed.

The accused is not guilty.

Out of the reasons for the final appeal stated by the counsel, ISHIGURO Hiroki, et al., the arguments of unconstitutional provision are those of the unconstitutionality of matters not at all argued or determined in prior instance, and the arguments of a conflict with judicial precedent citing a judicial precedent of a high court are irrelevant in this case because such cited judicial precedent addressed a case with different facts from those of this case. Other arguments, including those of a violation of the Constitution and a conflict with judicial precedent, are substantially arguments of a mere violation of laws and regulations and an erroneous finding of facts, and none of these reasons constitutes a reason for final appeal as referred to in Article 405 of the Code of Criminal Procedure.

However, taking into consideration the counsel's arguments and examining by the authority of the Court, the judgment in prior instance and the judgment in first instance should inevitably be quashed in accordance with Article 411, items (i) and (iii) of the Code of Criminal Procedure. The reasons therefor are as follows:

I. Charged facts of this case and the progress of this case

1. The outline of the charged facts of this case is that "around November 15, 2020, the defendant put the corpses of the two infants she had given birth to around that day in a cardboard box at her then residence located in Kumamoto Prefecture and left the box on a shelf in her room, and thereby abandoned the corpses."

2. The judgment in first instance found the criminal facts that, on such date and time and at such place as described in the charged facts, "the defendant put the corpses of the two infants she had given birth to around that time in a cardboard box and left the box in her room" and found the establishment of the crime of abandonment of corpses and sentenced the defendant to imprisonment with work for eight months with a suspended execution of the sentence for a period of three years.

3. Dissatisfied with the judgment in first instance, the defendant appealed to the court of second instance arguing an erroneous finding of facts and an error in the application of laws and regulations, etc. As to whether or not the defendant's act constitutes "abandonment" as described in Article 190 of the Penal Code, the judgment in prior instance stated the premise that, when a person packs a corpse to a certain degree as preparation for a customary funeral or as part of a funeral, even if the act can appear to be that of concealing the corpse, the act does not harm any religious sentiments or reverence for the deceased in general and does not constitute an "abandonment." On the basis of this premise, the judgment in prior instance ruled that the defendant's act of putting the corpses of the twin infants (hereinafter referred to as the "Both of the Infants") in a cardboard box and placing the same in her room (hereinafter referred to as the "Action"), being carried out by putting the corpses of Both of the Infants in a cardboard box which was then put in another cardboard box, sealing the dual box with adhesive tape, etc., and packing in a manner that made it impossible to suppose that the corpses were in the box by appearance, was an act to conceal the corpses of Both of the Infants that was not in preparation for a funeral or as part of a funeral. It could be said to have created a situation where it would be difficult for other persons to discover the corpses and therefore constituted an "abandonment." (Additionally, the judgment in prior instance ruled that, out of the defendant's acts found by the judgment in first instance, the act of leaving the corpses of Both of the Infants in the cardboard box in her room did not constitute "abandonment" by inaction.)

II. Facts of this case

According to the findings of the judgment in prior instance, as well as the case records, the facts of this case are as follows:

1. The defendant came to Japan, worked as a technical intern trainee, and lived in a house provided by the trainer company (hereinafter referred to as the "Dormitory"). Although she knew she had become pregnant, she neither told the fact to the people around her nor had a medical examination.

2. The defendant gave birth to Both of the Infants in her room at the Dormitory (hereinafter referred to as her "Own Room") around 9:00 a.m. on November 15, 2020, and both of them died soon after they were born at the latest.

After resting for a while, the defendant wrapped the Both of the Infants in a towel and put them in a cardboard box in her Own Room. Furthermore, she covered the wrapped corpses with another towel upon which she placed a letter containing words of apology and to the effect that they may rest in peace, as well as Both of the Infants' names as given by the defendant and their date of birth. She sealed the cardboard box with adhesive tape and put the same in another cardboard box and sealed that one with adhesive tape as well. She placed the packed cardboard box on a rolling shelf.

3. On the 16th of the same month, the defendant was taken to a hospital by employees of the supervising organization who had heard of the possibility of her pregnancy. At around 6:00 p.m. on the same day, after being shown the result of the doctor's examination, she admitted to giving birth to things resembling infants and burying the same. On the 17th of the same month, a search was conducted at the Dormitory, and the corpses of Both of the Infants were found in the cardboard box placed as described in 2 above.

III. Determination of this Court

1. Article 190 of the Penal Code is considered to intend to punish acts of damaging, abandoning, or unlawfully possessing a corpse, etc. on the basis that religious sentiments and reverence for the deceased in general should be protected through the burial, etc. of a corpse being held in accordance with social customs. Accordingly, it is reasonable to consider that the act of abandoning or concealing a corpse, etc. in a manner that cannot be deemed as a customary burial, etc. constitutes the "abandonment" in the crime of Abandonment of Corpses. If so, when determining whether or not an act to conceal a corpse, which creates a situation where it is difficult for other persons to discover the corpse, constitutes "abandonment," it is necessary to examine it from the viewpoint of whether the manner itself can be said to be a treatment inconsistent with a customary burial, etc., and it is insufficient to examine it only from the viewpoint of whether such act was committed in preparation for a funeral or as part of a funeral.

2. According to the facts mentioned in II, 2 above, the defendant gave birth to Both of the Infants in her Own Room; wrapped the corpses of Both of the Infants in a towel soon after their deaths; put the same in cardboard boxes; and placed the same on a shelf in the room. The above act of the defendant concealed the corpses and created a situation where it was difficult for other persons to discover the corpses. However, considering the place where such act was committed, the method of packing and placing the corpses, etc., the manner itself is not considered to be a treatment inconsistent with a customary burial, etc. Therefore, the act of the defendant does not constitute "abandonment" as described in Article 190 of the Penal Code. It should be said that the judgment in prior instance contains a serious error in the finding of facts because it made an error in the interpretation of "abandonment" and failed to examine the Action from the viewpoint of whether the manner itself can be said to be a treatment inconsistent with a customary burial, etc., which is necessary to determine whether the Action constitutes "abandonment."

3. As described above, the judgment in prior instance and the judgment in first instance, which found the establishment of the crime of abandonment of corpses, contain a violation of laws and regulations and a serious error in the finding of facts that have influenced the judgment. It is considered that not quashing such judgments would significantly be contrary to justice. In addition, it is reasonable that this Court render its own judgment as the Public Prosecutor has exhaustively proved its arguments. Since, as mentioned in 2 above, the Action does not constitute "abandonment" as described in Article 190 of the Penal Code, this Court should render a verdict of not guilty on the defendant.

Accordingly, in accordance with Article 411, items (i) and (iii) of the Code of Criminal Procedure, the judgment in prior instance and the judgment in first instance are hereby quashed, and in accordance with the proviso of Article 413 and Articles 414, 404, and 336 of said code, the Court unanimously decides as set forth in the main text of the judgment.

Public prosecutor, OGUSHI Masasato attended the trial.

Justice KUSANO Koichi

Justice MIURA Mamoru

Justice OKAMURA Kazumi

Justice OJIMA Akira