2008.02.18

2007 (A) 1230

Keishu Vol. 62, No. 2

Decision concerning the applicability mutatis mutandis of Article 244, para.1 of the Penal Code in cases where a guardian appointed by a family court for a minor ward has embezzled the property owned by the minor ward

Case charged for embezzlement in the pursuit of social activities

Decision of the First Petty Bench, dismissed

Sendai High Court, Judgment of May 31, 2007

Where a guardian appointed by a family court for a minor ward has embezzled the property owned by the minor ward of which the guardian takes possession in the pursuit of affair of guardianship, even if the guardian is a relative of the minor ward as set forth in Article 244, para.1 of the Penal Code, the affairs of guardianship have a public nature and therefore Article 244, para.1 of said Code shall not apply mutatis mutandis.

Article 244, para.1, Article 253, and Article 255 of the Penal Code

Article 244, para.1 of the Penal Code
(Special Provision for Theft Committed against Relatives)
A person who commits the crime prescribed under Article 235 or 235-2 or attempts thereof against a spouse, lineal blood relative or relative living together, shall be exculpated.

Article 253 of the Penal Code
(Embezzlement in the Pursuit of Social Activities)
A person who embezzles property which belongs to another in the person's possession in the pursuit of social activities, shall be punished by imprisonment with work for not more than 10 years.

Article 255 of the Penal Code
(Application, Mutatis Mutandis)
Article 244 shall apply mutatis mutandis to the crimes prescribed under this Chapter.

The final appeals are dismissed.

Among the reasons for final appeal argued by the appeal counsels for the three accused persons, MUNAKATA Norio and MUTO Masataka, the reason alleging a violation of the Constitution is in effect an assertion of an unappealable violation of laws or regulations, the reason alleging a violation of a judicial precedent lacks a premise because the holdings in the judgment of prior instance with regard to the scope of relatives prescribed in Article 244 of the Penal Code are not inconsistent with the relevant provisions of the Civil Code, and the rest are assertions of unappealable violations of laws or regulations, and none of them can be regarded as a reason for final appeal permissible under Article 405 of the Code of Criminal Procedure.
After considering the arguments, however, we decided to make a determination by this court's own authority with regard to the crime of embezzlement in the pursuit of social activities committed by one of the accused persons (hereinafter simply referred to as the "Accused").
1. In this case, the Accused, a guardian appointed by a family court for a minor ward, is charged for having, in conspiracy with two other persons, withdrawn and embezzled the deposits of the minor ward of which the Accused took custody in the pursuit of affairs of guardianship, thereby committing the crime of embezzlement in the pursuit of social activities. The appeal counsels argue that since the Accused is the minor ward's grandmother, she should be exculpated from punishment under Article 244, para.1 of the Penal Code as applied mutatis mutandis pursuant to Article 255 of said Code.

2. However, Article 244, para.1 of the Penal Code as applied mutatis mutandis pursuant to Article 255 of said Code, while considering from a policy perspective that in the case of a certain property-related crime that has occurred between relatives, the State should refrain from exercising punitive power and rather leave the crime to the autonomy of the relatives concerned, only provides for an exception to punishment of a person who has committed such a crime, and it is not that Article 244, para.1 of the Penal Code denies the establishment of the crime (See 1950 (Re) No. 1284, judgment of the Third Petty Bench of the Supreme Court of December 12, 1950, Keishu Vol. 4, No. 12, at 2543).
A guardian who is appointed by a family court for a minor ward shall administer the property of the minor ward and represent the minor ward in juridical acts concerning his/her property (Article 859, para.1 of the Civil Code). The guardian, when exercising powers, shall assume a duty to administer the affairs of guardianship with the due care of a prudent manager (Article 869 and Article 644 of the Civil Code), irrespective of whether he/she is a relative of the minor ward or not, and shall be subject to supervision by the family court (Article 863 of the Civil Code). Furthermore, if there is an unlawful act or other cause not befitting the office of guardianship on the part of a guardian of a minor ward, the family court, by its own authority, may dismiss the guardian (Article 846 of the Civil Code). According to these provisions of the Civil Code, it is obvious that a guardian of a minor ward, irrespective of whether he/she is a relative of the minor ward or not, shall assume a legal duty to administer the property of the minor ward in good faith.
Based on this reasoning, we should say that the affairs of guardianship to be administered by a guardian of a minor ward can be deemed to have a public nature, and where a guardian appointed by a family court for a minor ward has embezzled the property owned by the minor ward of which the guardian takes possession in the pursuit of affairs of guardianship, there is no room to construe that the guardian shall be exculpated from punishment under the Penal Code by applying mutatis mutandis Article 244, para.1 of the Penal Code, which has the aforementioned purport. Consequently, we can affirm as justifiable the conclusion of the judgment of prior instance that Article 244, para.1 of the Penal Code shall not apply mutatis mutandis to this case and the Accused shall not be exculpated from punishment.

Therefore, according to Article 414 and Article 386, para.1, item 3 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.

Justice KAINAKA Tatsuo
Justice YOKOO Kazuko
Justice IZUMI Tokuji
Justice SAIGUCHI Chiharu
Justice WAKUI Norio