2003.12.18

2003 (A) 537

Keishu Vol. 57, No.11

Decision upon the case concerning the act of delivering a forged document of contract as an authentic document in requesting a judicial scrivener to represent and commission to prepare an authenticated deed based on the document of mutuatus and the term "utterance" as stipulated in Article 161 (1) of the Penal Code.

Case to be brought for counterfeit of securities, utterance of them, untrue entry in the original of an authenticated deed, utterance of it, forgery of a private document with signature or seal, and utterance of it

Decision of the Second Petty Bench, dismissed

Osaka High Court, Judgment of February 18, 2003

The act of delivering a forged document of contract as an authentic document in requesting a judicial scrivener to represent and commission to prepare an authenticated deed based on the document of mutuatus shall be regarded as "utterance" as stipulated in Article 161 (1) of the Penal Code.

Article 161 (1) of the Penal Code
(Uttering Forged Private Document)
A person who utters a document or drawing mentioned in the preceding two Articles shall be punished with the same penalty as a person who forges or alters a document or drawing or makes a false entry therein, as the case may be.

The jokoku appeal shall be dismissed.
One hundred and eighty days of pre-judgment detention of this instance shall be calculated in the third and fourth crimes that were decided by the judgment of the first instance court.
The defendant shall owe the cost of the lawsuit of this instance.

Among the grounds for the jokoku appeal by attorney YANO Kyosuke, the grounds of claiming contravention of judicial precedents is inappropriate for this case because the cited precedent concerns a case which is different from this case, and the rest of the grounds are claims of error in facts, mere violation of laws, and inappropriateness of sentencing. Among the grounds for the jokoku appeal by the defendant, the grounds of claiming violation of Article 38(1) and (2) of the Constitution lacks premises because no evidence of doubting the voluntariness of the defendant's statement can be recognized from the record, and the rest of the grounds are claims of error in facts, mere violation of laws, and inappropriateness of sentencing in substance, including the ground of claiming contravention of judicial precedents, and neither of such claims can be regarded as reasons for jokoku appeal under Article 405 of the Code of Criminal Procedure.
With respect to a case where a forged document was delivered to a judicial scrivener, whether the crime of utterance of a forged private document with signature or seal is constituted shall be decided ex officio.
Based on the finding of the judgment of the first instance court which was approved by the second instance court, around the beginning of August 1997, for the purpose of uttering, in conspiracy with A, the defendant forged of the person's own will, one copy of a document of mutuatus that had false contents to the effect as follows, at the office of a judicial scrivener in Matsudo-shi, Chiba; Company C was designated as a lender, Company D as a borrower, and to the effect that D was made an obligor, who had borrowed five hundred million yen (500,000,000 yen). Around that time, the defendant delivered the document of contract to the judicial scrivener B, at that place and under disguise, it was established as an authentic one and B was requested to represent and commission to prepare the authenticated deed based on the document.
Considering the contents of the document, the purpose of delivery, and the opposite party, it is reasonable to understand that the defendant's act of delivering the above forged document of mutuatus as an authentic one at the time of making the request to the judicial scrivener is regarded as utterance of a forged document, because it can be recognized that there is a fear of damaging the public confidence in a document.
In the end, the decision of the second instance court that had approved the judgment of the first instance court, by which the establishment of the crime of utterance of a forged private document with signature or seal was approved, is justifiable.
From all of the above, according to Article 414, Article 386(1)(iii), main clause of Article 181 (1) of the Code of Criminal Procedure, and Article 21 of the Penal Code, the decision was rendered in the form of the main text by the unanimous consent of the Justices.

Justice TAKII Shigeo
Justice FUKUDA Hiroshi
Justice KITAGAWA Hiroharu
Justice KAMEYAMA Tsugio