Judgments of the Supreme Court

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2007 (A) 720

Date of the judgment (decision)

2007.08.08

Case Number

2007 (A) 720

Reporter

Keishu Vol. 61, No. 5

Title

Decision concerning whether or not the crime set forth in Article 8, item 1 of the Act on the Prohibition of Unauthorized Computer Access and the crime of unauthorized creation of electromagnetic records by a private person can be treated as one crime for the purpose of imposing punishment

Case name

Case to be brought for violation of the Act on the Prohibition of Unauthorized Computer Access, and unauthorized creation and use of electromagnetic records by a private person

Result

Decision of the Second Petty Bench, dismissed

Court of the Prior Instance

Osaka High Court, Judgment of March 27, 2007

Summary of the judgment (decision)

Even where an act of unauthorized creation of electromagnetic records has been committed by a private person through means of unauthorized computer access prescribed in Article 3 of the Act on the Prohibition of Unauthorized Computer Access, the crime set forth in Article 8, item 1 of the said Act and the crime of unauthorized creation of electromagnetic records by a private person cannot be regarded as being connected with each other.

References

Article 45, Article 54, para.1, and Article 161-2, para.1 of the Penal Code; Article 3, para.1 and para.2, item 1, and Article 8, item 1 of the Act on the Prohibition of Unauthorized Computer Access

Article 45 of the Penal Code
(Consolidated Punishments)
Two or more crimes which have been committed but for which no judgment has yet become final and binding shall constitute crimes for consolidated punishment. When a judgment imposing imprisonment without work or a greater punishment becomes final and binding for a crime, only that crime and other crimes committed before such judgment became final and binding shall constitute crimes for consolidated punishment.

Article 54, para.1 of the Penal Code
(Concurrence of Crimes)
(1) When a single act constitutes two or more separate crimes, or when an act as the means or results of a crime constitutes another crime, the greatest among the punishments prescribed for such crimes shall be imposed.

Article 161-2, para.1 of the Penal Code
(Unauthorized Creation of Electromagnetic Records)
(1) A person who, with the intent to bring about improper administration of the matters of another person, unlawfully creates without due authorization an electromagnetic record which is for use in such improper administration and is related to rights, duties or certification of facts, shall be punished by imprisonment with work for not more than 5 years or a fine of not more than 500,000 yen.

Article 3, para.1 and para.2, item 1 of the Act on the Prohibition of Unauthorized Computer Access
(Prohibition of Unauthorized Computer Access)
(1) No person may commit unauthorized computer access.
(2) Unauthorized computer access prescribed in the preceding paragraph means any of the following acts:
(i) An act of inputting, into a specified computer with an access control function through a telecommunication line, another person's identification code pertaining to the said access control function and putting the said specified computer into action, thereby making it available for a specified usage restricted by the said access control function (excluding such an act that was conducted by the access control manager who has given the said access control function to the said specified computer, and that was conducted with approval of the said access control manager or the authorized user of the said identification code)

Article 8, item 1 of the Act on the Prohibition of Unauthorized Computer Access
(Penal Provisions)
A person who falls under any of the following shall be punished by imprisonment with work for not more than one year or a fine of not more than 500,000 yen:
(i) A person who has violated Article 3, para.1

Main text of the judgment (decision)

The final appeal is dismissed.

Reasons

Among the reasons for final appeal argued by the defense counsel, ONISHI Tatsuo, the reason alleging violation of a judicial precedent is irrelevant in this case because the cited judicial precedent addresses a different type of facts, and the rest are in effect nothing more than assertions of violation of laws or regulations or inappropriateness in sentencing, and none of them can be regarded as a reason for final appeal permissible under Article 405 of the Code of Criminal Procedure.
The determination of the court of second instance is appropriate in that it concluded that even where an act of unauthorized creation of electromagnetic records by a private person has been committed through means of unauthorized computer access prescribed in Article 3 of the Act on the Prohibition of Unauthorized Computer Access, it is appropriate to construe that between the crime set forth in Article 8, item 1 of the said Act and the crime of unauthorized creation of electromagnetic records by a private person, no relationship can be found wherein either crime is the means or result of the other crime as an ordinary form of crime, or in other words, these crimes are not connected with each other, and therefore the crimes charged in this case should be treated as crimes for consolidated punishment.

Therefore, according to Article 414, Article 386, para.1, item 3, and the proviso of Article 181, para.1 of the Code of Criminal Procedure, the decision has been rendered in the form of the main text by the unanimous consent of the Justices.

Presiding Judge

Justice IMAI Isao
Justice TSUNO Osamu
Justice NAKAGAWA Ryoji
Justice FURUTA Yuki

(This translation is provisional and subject to revision.)