2024.10.07

2022 (A) 1059

Keishu Vol. 78, No. 5

(Criminal Case)Decision concerning a judgment in second instance to impose collection of a sum of equivalent value under Article 16, paragraph (1) of the Act on Punishment of Organized Crimes and Control of Proceeds of Crime (prior to the amendment by Act No. 97 of 2022), in lieu of confiscation of property under Article 13, paragraph (1) of the same Act, and the principle of prohibition of modifying a judgment in prior instance in a manner disadvantageous to the accused who appealed as prescribed in Article 402 of the Code of Criminal Procedure

Case charged for violation of the Act on Punishment of Organized Crimes and Control of Proceeds of Crime

Decision of the Third Petty Bench, dismissed

Tokyo High Court, Judgment of June 23, 2022

Where only the accused appeals, if the court of second instance, with regard to the property for which a judgment in first instance imposed confiscation under Article 13, paragraph (1) of the Act on Punishment of Organized Crimes and Control of Proceeds of Crime (prior to the amendment by Act No. 97 of 2022), renders a judgment to impose collection of a sum of the value equivalent to that property pursuant to Article 16, paragraph (1) of the Act in lieu of confiscation, this does not fall under the case where the court "renders a heavier sentence than that rendered by the court of first instance" as referred to in Article 402 of the Code of Criminal Procedure.

Article 402 of the Code of Criminal Procedure; Article 13, paragraph (1) and Article 16, paragraph (1) of the Act on Punishment of Organized Crimes and Control of Proceeds of Crime (prior to the amendment by Act No. 97 of 2022)

The final appeals are dismissed.

As the reason for final appeal, the public prosecutor argues violation of a judicial precedent but this argument is irrelevant in this case because the cited judicial precedent addressed a different type of facts. Among the reasons for final appeal stated by the defense counsel for both of the accused, MURONOSONO Daisuke, the argument of violation of a judicial precedent is irrelevant in this case because the cited judicial precedent addressed a different type of facts, and the other arguments, including the argument of violation of the Constitution, are in effect arguments of mere violation of laws and regulations and erroneous finding of facts. Among the reasons for final appeal stated by both of the accused, the argument of violation of a judicial precedent is irrelevant in this case because the cited judicial precedent addressed a different type of facts, and the other arguments are in effect arguments of mere violation of laws and regulations and erroneous finding of facts. None of these reasons constitutes any of the reasons for a final appeal as referred to in Article 405 of the Code of Criminal Procedure.

In consideration of the public prosecutor's arguments, the Court makes a determination by its own authority.

1. The court of first instance rendered a judgment to: [i] confiscate, from both of the accused, the claims for cryptoassets, etc. held by Accused Company A against the cryptoasset (cryptocurrency) exchange operating company, which are monetary claims (these claims fall within the category of stolen or misappropriated property) relating respectively to assets remaining in the account (held in the name of Company A) at the cryptoasset exchange operated by that operating company and assets relating to pending transactions, namely, [a] cryptoasset NEM, 0.777078XEM, [b] cryptoasset NEM, 44,243.921215XEM (for pending transactions), [c] cryptoasset BTC, 0.00002020BTC, and [d] 17 yen; and [ii] collect 25,950,033 yen (the value of the stolen or misappropriated property) jointly and severally from both of the accused as a sum of the value equivalent to the property, and 39,669,577 yen (the value of the stolen or misappropriated property) from Accused B as a sum of the value equivalent to the property.

Both of the accused appealed against the judgment in first instance. The court of prior instance determined that in connection with the confiscation of the assets mentioned in [i][a][b][c] above, claims for the transfer of cryptoassets do not fall within the category of monetary claims as referred to in Article 13, paragraph (1) of the Act on Punishment of Organized Crimes and Control of Proceeds of Crime (hereinafter referred to as the "Act"), and that the court of first instance erred in interpreting and applying the same paragraph in that it confiscated these assets. Accordingly, the court of prior instance reversed the judgment in first instance and limited the scope of property subject to confiscation to include only the claim for refund of deposit that is equivalent to the amount of money mentioned in [i][d] above. On the other hand, in response to the argument by the public prosecutor in prior instance that the value equivalent to the assets mentioned in [i][a][b][c] above should be added to the amount to be collected from both of the accused, the court of prior instance stated that if, in lieu] of confiscation of property, collection of a sum of equivalent value is imposed, this results in expanding the scope of property or profit which the criminal would be deprived of from specific property to general property, and that such collection would be disadvantageous to both of the accused unless there are special circumstances. In conclusion, the court of prior instance maintained the amount to be collected as determined in the judgment in first instance (the amount mentioned in [ii] above).

2. However, as a disposition in lieu of, or disposition alternative to, confiscation of property under Article 13, paragraph (1) of the Act, the Act prescribes collection of a sum of equivalent value under Article 16, paragraph (1) of the Act, on the premise that the amount to be collected is equal to the value of the property subject to confiscation. The scope of property which the criminal would be deprived of differs between confiscation of property and collection of a sum of equivalent value. It is understood that such difference in terms of the property subject to confiscation and collection of a sum of equivalent value is taken into account under the Act and it cannot be said that this difference affects equivalence in value between confiscation under Article 13, paragraph (1) of the Act and collection of a sum of equivalent value under Article 16, paragraph (1) of the Act. Accordingly, it is appropriate to construe that in the case where only the accused appeals, if the court of second instance, with regard to the property for which a judgment in first instance imposed confiscation under Article 13, paragraph (1) of the Act, renders a judgment to impose collection of a sum of the value equivalent to that property pursuant to Article 16, paragraph (1) of the Act in lieu of confiscation, this does not fall under the case where the court "renders a heavier sentence than that rendered by the court of first instance" as referred to in Article 402 of the Code of Criminal Procedure.

It must be said that the determination by the court of prior instance that is contrary to the above is illegal due to the error in the interpretation and application of the same Article, and it should be said that in this case, the court of prior instance is allowed to add the value equivalent to the assets mentioned in [i][a][b][c] above to the amount to be collected from both of the accused as ordered in the judgment in first instance, in lieu of confiscating those assets from both of the accused.

3. However, confiscation under Article 13, paragraph (1) of the Act and collection of a sum of equivalent value under Article 16, paragraph (1) of the Act are discretionary. In this case, although the total amount of criminal proceeds received by both of the accused was large, the profit they actually gained was only a small part of that amount. The court of prior instance rendered a judgment to collect, jointly and severally from both of the accused and separately from Accused B, the amount corresponding to the majority of the amount of profit both of the accused actually gained. In consideration of the above collection judgment and other circumstances of the case, it can hardly be found that it would be contrary to justice if the judgment in prior instance were not reversed just because it did not add the amount expected as the value equivalent to the assets mentioned in [i][a][b][c] above to the amount to be collected.

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

Justice ISHIKANE Kimihiro

Justice UGA Katsuya

Justice HAYASHI Michiharu

Justice WATANABE Eriko