2008.05.20

2006 (A) 2618

Keishu Vol. 62, No. 6

Decision concerning a case where the court rejected the claim of self-defense argued with regard to the accused's act of injuring the victim committed as a counterattack against the victim's attack that was triggered by the accused's own assault

Case charged for injury

Judgment of the Second Petty Bench, dismissed

Tokyo High Court, Judgment of November 29, 2006

With regard to the accused's act of injuring the victim committed as a counterattack against the victim's attack, the accused had assaulted the victim before being attacked by the victim, and the victim's attack can be deemed to have been triggered by the accused's assault and can be regarded as one of a series of events or integrated events which occurred immediately after the preceding event (the accused's assault) at a place close to where the preceding event occurred, and in this respect, the accused can be deemed to have caused infringement by committing an unlawful act himself, and therefore, given the facts of the case such as that the victim's attack did not go far beyond the level of the accused's assault, the accused's act of injuring the victim cannot be deemed to have been committed in the situation where the accused can be justified for launching any counterattack against the victim.

Article 36 of the Penal Code

Article 36 of the Penal Code
(Self-Defense)
(1) An act unavoidably performed to protect the rights of oneself or any other person against imminent and unlawful infringement is not punishable.
(2) An act exceeding the limits of self-defense may lead to the punishment being reduced or may exculpate the offender in light of the circumstances.

The final appeal is dismissed.

The reasons for final appeal argued by the defense counsel, SAKAI Kiyoo, including the reason alleging violation of a judicial precedent, are in effect assertions of unappealable violation of laws and regulations, errors in fact-finding or inappropriateness in sentencing, and the reasons for final appeal argued by the accused are assertions of unappealable violation of laws and regulations, errors in fact-finding 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.
After considering the arguments, however, we decided to make a determination by this court's own authority with regard to whether or not the claim of self-defense is acceptable in this case.
1. According to the judgment of prior instance and the findings of the judgment of first instance affirmed by the former, the outline of the facts of the case is as follows.
(1) A, the victim of the incident (aged 51), on the day of the incident, around 7:30 p.m., discarded waste at a waste collection point located on a sidewalk, while on a bicycle, and on this occasion, the accused (aged 41) walked by on his/her way home and said something to A, feeling suspicious about A's behavior, and then they got into a quarrel.
(2) The accused abruptly hit A's left cheek with his fist once, and immediately ran away from the scene.
(3) A chased after the accused by bicycle, saying "Wait," etc., turned left at a point around 26.5 meters from the scene of the hitting, continued forward about 60 meters, and there caught up with the accused on the sidewalk, and then strongly hit the accused near his/her upper back or neck from behind with his/her right arm out horizontally, while on the bicycle.
(4) The accused fell forward due to A's attack mentioned above, but then got up and took out of his/her wear a special baton that he/she carried for self-defense, assaulted A by hitting his/her face and left hand which he/she raised to protect him/herself several times; in this manner, the accused caused A to suffer injuries, i.e. facial bruises and a fracture of the middle phalanx of the left little finger, which required about three weeks of medical treatment.

2. In this case, the accused is charged with the crime of injury for having committed the act described in 1(4) above. The defense counsel and the accused argue that the court of prior instance erred in determining that the infringement caused by A's attack against the accused described in 1(3) above was not imminent, and therefore they argue that the accused's act of injuring A can be justified as self-defense. However, according to the facts mentioned above, the accused had assaulted A before being attacked by A, and A's attack can be deemed to have been triggered by the accused's assault and can be regarded as one of a series of events or integrated events which occurred immediately after the preceding event (the accused's assault) at a place close to where the preceding event occurred. In this respect, the accused can be deemed to have caused infringement by committing an unlawful act himself. Therefore, given the facts of the case such as that A's attack did not go far beyond the level of the accused's assault, we should conclude that the accused's act of injuring A cannot be deemed to have been committed in the situation where the accused can be justified for launching any counterattack against A. In consequence, the conclusion of the court of prior instance that rejected the claim of self-defense is justifiable.

Therefore, according to Article 414, Article 386, paragraph (1), item (iii), and the proviso to Article 181, paragraph (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.

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