2024.05.21

2023 (A) 1032

Keishu Vol.78, No.2

(Criminal Case)Judgment concerning whether Article 7, paragraph (5) of the Act on Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, and the Protection of Children (hereinafter referred to as the "the Child Pornography Act") is applicable with regard to the case where the accused produced child pornography by having a child pose in a way falling under any of the items of Article 2, paragraph (3) of the Child Pornography Act and secretly photographing the child in posing, if such act also constitutes the crime of production of child pornography under Article 7, paragraph (4) of the same Act

Case charged for indecency through compulsion, violation of the Act on Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, and the Protection of Children, forcible sexual intercourse and attempt of the same

Judgment of the Third Petty Bench, dismissed

Osaka High Court, Judgment of July 27, 2023

Where the accused produced child pornography by having a child pose in a way falling under any of the items of Article 2, paragraph (3) of the Child Pornography Act and secretly photographing the child in posing, even if such act constitutes the crime of production of child pornography under Article 7, paragraph (4) of the same Act, if the crime of production of child pornography under paragraph (5) of the same Article is also established and prosecution is instituted for this crime, the court may apply paragraph (5) of the same Article with regard to such fact of production of child pornography.

Article 2, paragraph (3), and Article 7, paragraphs (2) to (5) of the Act on Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, and the Protection of Children

The final appeal is dismissed.

The 170 days spent in pre-sentencing detention in this instance are included into the sentence imposed.

1. Concerning the argument of violation of a judicial precedent made by citing 2022 (U) 758, the judgment of the Osaka High Court of January 24, 2023, Hanrei Times No. 1512, at 136, among the reasons for final appeal stated by the defense counsel, OKUMURA Toru

The court of prior instance upheld the judgment in first instance that applied Article 7, paragraph (5) of the Act on Regulation and Punishment of Acts Relating to Child Prostitution and Child Pornography, and the Protection of Children (hereinafter referred to as the "Child Pornography Act") with regard to the fact of production of child pornography disputed in this case, that is, on each of the occasions of committing indecency through compulsion, forcible sexual intercourse and attempt of the same against the victimized child (aged 10 at that time) while the child was sleeping, the accused produced child pornography by having the child pose in a way falling under any of the items of Article 2, paragraph (3) of the Child Pornography Act (hereinafter referred to as "pose" or "posing") and secretly photographing the child in posing.

This determination should be understood as being in conflict with the judicial precedent cited by the counsel, which ruled that if, on each of the occasions of committing indecency against a child through compulsion, constructive indecency through compulsion, and forcible sexual intercourse, a person produces child pornography by having the child pose and photographing the child in posing, the crime of production of child pornography under Article 7, paragraph (4) of the Child Pornography Act is established even if the child is not aware of being photographed for reasons such as that the child is sleeping, and therefore that paragraph (5) of the same Article does not apply.

However, Article 7, paragraph (5) of the Child Pornography Act has been established in view of the seriousness of the illegality of the act of producing child pornography by secretly photographing a child in posing, and for the purpose of expanding the scope of production of child pornography that is punishable in addition to the acts of production of child pornography set forth in paragraphs (3) and (4) of the same Article. In light of such legislative purpose and background, as well as the legal interests to be protected against the crimes of production of child pornography under paragraphs (4) and (5) of the same Article and the statutory punishments for these crimes, it is appropriate to consider that where the accused produced child pornography by having the child pose and secretly photographing the child in posing, even if such act constitutes the crime of production of child pornography under paragraph (4) of the same Article, if the crime of production of child pornography under paragraph (5) of the same Article is also established and prosecution is instituted for this crime, the court may apply paragraph (5) of the same Article with regard to such fact of production of child pornography. If it is not so considered, in some cases, both parties would be forced to carry out unnatural litigation activities, that is, the public prosecutor who has instituted prosecution for the crime of production of child pornography under paragraph (5) of the same Article would have to prove that the crime of production of child pornography under paragraph (4) of the same Article is not established, while the accused would have to rebut by arguing that the crime under paragraph (4) of the same Article is established. Furthermore, the court would not be able to apply paragraph (5) of the same Article even if it is obvious from evidence that the accused produced child pornography by secretly photographing the child in posing, which is an unreasonable consequence. The phrase "Beyond what is provided for in the preceding two paragraphs" in paragraph (5) of the same Article does not preclude the above interpretation.

Therefore, the determination by the court of prior instance is justifiable in that it upheld the judgment in first instance that applied Article 7, paragraph (5) of the Child Pornography Act with regard to the fact of production of child pornography disputed in this case.

Consequently, the Court finds it appropriate to alter the judicial precedent cited by the counsel and uphold the judgment in prior instance pursuant to Article 410, paragraph (2) of the Code of Criminal Procedure, and in the end, the violation of the judicial precedence argued by the counsel cannot be the reason for quashing the judgment in prior instance.

2. Concerning the other reasons for final appeal

Among the other reasons for final appeal stated by the appeal counsel, OKUMURA Toru, the argument of violation of another judicial precedent is irrelevant in this case because the cited judicial precedent addressed different types of facts, or lacks a premise because the cited judicial precedent does not have the meaning as argued by the counsel. Other reasons are arguments of mere violation of laws and regulations and inappropriate sentencing, and none of them constitutes a reason for final appeal prescribed in Article 405 of the Code of Criminal Procedure.

3. Accordingly, in accordance with Article 408 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 judgment.

Justice IMASAKI Yukihiko

Justice UGA Katsuya

Justice HAYASHI Michiharu

Justice WATANABE Eriko