2004.02.16

2001 (A) 456

Keishu Vol. 58, No. 2

Decision upon the case in which the demand for a formal trial made by a public prosecutor after a summary order had been issued according to the public prosecutor's opinion on punishment was judged to be legal

Case to be brought for violation of Road Traffic Law

Decision of the Second Petty Bench, dismissed

Hiroshima High Court, Judgment of February 22, 2001

Even if a summary order is issued according to the public prosecutor's opinion on punishment, under the circumstances where it is later found that the defendant has a number of previous convictions for the same kind of offenses including those for the same offenses, the demand for a formal trial made by the public prosecutor is legal.

Article 465(1) and Article 461 of the Code of Criminal Procedure

Code of Criminal Procedure
Article 461
In a matter coming within its jurisdiction, a summary court may, on public prosecutor's demand, impose a fine not exceeding 5,000 yen or minor fine by a summary order prior to public trial. In this case, the suspension of the execution of sentence, confiscation and, other accessory dispositions may be effected.

Article 465(1)
A person against whom a summary order has been issued or a public prosecutor may apply for formal trial within 14 days from the day on which they received notification thereof.

The jokoku appeal shall be dismissed.

The grounds for the jokoku appeal submitted by attorney KUMAI Hikaru are, including the one alleging violation of the Constitution, in effect no more than ones that claim mere violation of laws or inappropriateness in sentencing, and neither of these arguments can be regarded as a ground for jokoku appeal acceptable under Article 405 of the Code of Criminal Procedure.
After considering the argument, however, we decide to carry out ex officio examination on the appropriateness of the demand for a formal trial made by the public prosecutor.
According to the fact-findings made in the judgment of the second instance, the public prosecutor, based on the false recognition that the defendant had no previous conviction, made a demand for a summary order to the Hofu Summary Court with respect to the facts constituting the first offense (driving without a license) and those constituting the second offense (excessive speeding) stated in the judgment of the first instance, while attaching the public prosecutor's opinion on punishment, and according to that opinion, a summary order was issued to punish the defendant with a fine of 98,000 yen. It was later found that the defendant had a number of previous convictions for violation of the Road Traffic Law including convictions for the same offense (in particular, driving without a license), and therefore the public prosecutor considered it appropriate to demand imprisonment with labor for these offenses, and made a demand for a formal trial on the day following the day of the issuance of the summary order.
Given these facts, it should be deemed to be legitimate for the public prosecutor to have made the demand for a formal trial with the aim of imposing an appropriate punishment on the defendant. For this reason, the judgment of the second instance that goes along with this reasoning is justifiable.
Therefore, according to Article 414, Article 386(1)(iii) and the proviso of Article 181(1) of the Code of Criminal Procedure, the decision was rendered in the form of the main text by the unanimous consent of the Justices.

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