2024.12.17

2024 (A) 536

Keishu Vol. 78, No. 6

(Criminal Case) Judgment concerning Article 13, paragraph (1), item (vi) of the Act on Punishment of Organized Crimes and Control of Proceeds of Crime (prior to the amendment by Act No. 97 of 2022), which allows confiscation of property, etc. produced from the criminal acts prescribed in Article 10 of that Act, and Article 29 of the Constitution

Case charged to the court for violation of the Trademark Act, the Act on Punishment of Organized Crimes and Control of Proceeds of Crime, and the Act on Prevention of Transfer of Criminal Proceeds

Judgment of the Third Petty Bench, dismissed

Hiroshima High Court, Okayama Branch, Judgment of March 25, 2024

Article 13, paragraph (1), item (vi) of the Act on Punishment of Organized Crimes and Control of Proceeds of Crime (prior to the amendment by Act No. 97 of 2022), which allows confiscation of property, etc. produced from the criminal acts prescribed in Article 10 of that Act, is not in violation of Article 29 of the Constitution.

Article 29 of the Constitution; Article 2, paragraph (2), item (i), (a), and paragraphs (3) and (4) of the Act on Punishment of Organized Crimes and Control of Proceeds of Crime; Article 10 and Article 13, paragraph (1), item (vi) 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 appeal is dismissed.

1. Concerning the argument of unconstitutionality of the provision in question, among the reasons for final appeal stated by the defense counsel, KAMURO Tatsuyoshi

The defense counsel argues that Article 13, paragraph (1), item (v) of the Act on Punishment of Organized Crimes and Control of Proceeds of Crime (prior to the amendment by Act No. 97 of 2022; referred to below as the "Act") is in violation of Article 29 of the Constitution because that item allows confiscation of property even if it has been obtained through legitimate economic activities. However, this is a case in which the accused obtained property, etc. through a criminal act that constitutes violation of the Trademark Act, which was committed for the purpose of obtaining an unlawful economic benefit, and deposited that property, etc. together with other property of their own into the bank account that is held in the name of another person and managed by the accused, thereby disguising facts concerning the acquisition of proceeds of crime, etc., and thus the claim for savings in the bank account that has arisen from this conduct is subject to confiscation. Hence, as pointed out in the judgment in prior instance, Article 13, paragraph (1), item (vi) of the Act is applicable to this claim for savings. Accordingly, the defense counsel's argument is understood as arguing the unconstitutionality of Article 13, paragraph (1), item (vi) of the Act which makes it possible to confiscate the entirety of property produced through a criminal act as prescribed in the first sentence of Article 10, paragraph (1) of the Act, beyond the portion equivalent to the amount or quantity of proceeds of crime and property derived from proceeds of crime.

This argument is examined as follows. The purpose of the Act includes, among others, punishing the concealment, etc. of proceeds of crime and setting out special provisions, etc. concerning the confiscation of proceeds of crime and the collection of a sum of the value equivalent to proceeds of crime in order to make it possible to deprive criminals of proceeds of crime, in light of the fact that proceeds of crime facilitate organized crimes and that interference with business activities through the utilization of such proceeds can cause a seriously adverse impact on sound economic activities. Accordingly, Article 10 of the Act provides that such acts as concealing the relationship between the proceeds of crime and the crime underlying such proceeds are punishable, focusing on the nature of these acts themselves of being antisocial and infringing legal interests, because they make it easy to retain and utilize proceeds of crime that are likely to be invested in future criminal activities or have an adverse impact on legitimate economic activities. Since such likelihood exists as long as the property in question contains proceeds of crime or property derived from proceeds of crime, Article 10 of the Act stipulates that if a person disguises facts concerning the acquisition, etc. of property composed of any of these types of property intermingled with other kinds of property, or conceals property that contains such intermingled property, the crime of disguising facts or concealing proceeds of crime, etc. is established with regard to the entirety of that property containing the intermingled property. Based on this, as the property relating to a criminal act under Article 10 of the Act that may be confiscated, Article 13, paragraph (1), item (v) of the Act prescribes the entirety of property that constitutes the criminal act and item (vi) of that paragraph prescribes property, etc. produced through a criminal act.

Measures such as providing that the crime under Article 10 of the Act is established with regard to the entirety of property involved as the object of the act of disguising facts concerning the acquisition, etc. or the act of concealment, and then targeting a wide range of property relating to the criminal acts under that Article as the property subject to confiscation at the discretion of the judge can be regarded as necessary and reasonable measures to achieve the purpose of the Act mentioned above, i.e., preventing and suppressing the criminal acts prescribed in that Article and making it possible to reliably deprive criminals of such property that is likely to be reinvested in future criminal activities or have an adverse impact on legitimate economic activities. Consequently, the provisions of Article 13, paragraph (1), item (vi) of the Act that allow confiscation of property, etc. produced from the criminal acts prescribed in Article 10 of the Act is not in violation of Article 29 of the Constitution. This is clear in light of the purports of the precedents of this Court (1951 (A) 1897, the judgment of the Grand Bench of the Supreme Court of November 27, 1957, Keishu Vol. 11, No. 12, at 3132, and 1962 (A) 1243, the judgment of the Grand Bench of the Supreme Court of July 1, 1964, Keishu Vol. 18, No. 6, at 290) (see 1960 (A) 1358, the judgment of the First Petty Bench of the Supreme Court of March 30, 1961, Keishu Vol. 15, No. 3, at 667).

2. Concerning the other reasons for final appeal

As the other reasons for final appeal, the defense counsel, KAMURO Tatsuyoshi, argues violation of the Constitution, but these reasons are substantially arguments of a mere violation of laws and regulations and inappropriate sentencing, and do not constitute any of the reasons for final appeal as referred to in Article 405 of the Code of Criminal Procedure.

3. Accordingly, in accordance with Article 408 of the Code of Criminal Procedure, the Court unanimously decides as set forth in the main text of the judgment.

Justice HIRAKI Masahiro

Justice UGA Katsuya

Justice HAYASHI Michiharu

Justice WATANABE Eriko

Justice ISHIKANE Kimihiro