2009.02.24

2008 (A) 2102

Keishu Vol. 63, No. 2

Decision concerning the case wherein the court ruled that where a person committed several assaults as a counterattack against an imminent and unlawful infringement, even if an injury was caused only by the first assault which can be regarded, when considered alone, as a reasonable means of self-defense, the person should be found to be guilty of a single crime of injury through excessive self-defense

Case charged for injury

Decision of the First Petty Bench, dismissed

Osaka High Court, Judgment of October 14, 2008

Where a person committed several assaults as a counterattack against an imminent and unlawful infringement, even if an injury was caused only by the first assault which can be regarded, when considered alone, as a reasonable means of self-defense, given the facts that the initial assault and the assault committed subsequently beyond the bounds of self-defense are a single series of acts and they can be regarded as a single act based on the same intent of self-defense, it is appropriate to consider these assaults totally and find it to be a single crime of injury through excessive self-defense; it is sufficient to take into consideration the circumstances where the injury was caused, as the circumstances favorable to the accused.

Article 36 of the Penal Code

Article 36 of the Penal Code
(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, SUZUKI Toshihiko, are assertions of errors in fact finding, and none of these assertions 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.
1. In this case, the accused, who had already been prosecuted for violation of the Stimulants Control Act and was under detention at the detention house, was prosecuted for the crime of injury, based on the charged facts that the accused, in his/her cell within the detention house, assaulted a male inmate who shared the cell (hereinafter referred to as the “victim”) by throwing a folding table at the victim and punching the victim in the face with his/her fist several times, thereby causing the victim to suffer injuries of a tendon rupture and a contusion of his left middle finger which required medical treatment for about three weeks (hereinafter referred to as the “Injuries”).

2. The judgment in prior instance held that the accused committed the act of throwing the folding table because the victim first pushed down the table toward the accused, and the accused pushed the table back toward the victim as a counterattack (hereinafter referred to as the “first assault”), and this act can be regarded as a reasonable means of self-defense against an imminent and unlawful infringement caused by the victim, whereas the act that the accused committed thereafter, i.e. punching the victim in the face with his/her fist several times while the victim could hardly counterattack or resist after being hit and pushed down by the table (hereinafter referred to as the “second assault”), went beyond the bounds of a reasonable means of self-defense. The judgment in prior instance then determined that since the first assault and the second assault are a single series of acts which were committed at close times and places against the imminent and unlawful infringement caused by the victim, these assaults should not be considered separately from each other, but they should be considered totally as a single act of excessive self-defense. Accordingly, as the facts constituting the crime, the judgment found that “the accused, in an attempt to protect him/herself against the victim who pushed down a folding table toward him/her, but beyond the bounds of self-defense, pushed the table back toward the victim and punched the victim in the face with his/her fist several times after the victim was pushed down by the table, thereby causing the victim to suffer the Injuries,” and determined that the accused committed the crime of injury through excessive self-defense. The judgment in prior instance further found the fact, as the circumstances to be taken into consideration, that only the first assault has a direct cause-and-effect relationship with the Injuries, and this assault, when considered alone, can be deemed to be a reasonable means of self-defense. In conclusion, the judgment of prior instance sentenced the accused to imprisonment with work for four months.

3. The defense counsel argues that since the Injuries were caused by the first assault which is not illegal, there is no room to find the crime of injury through excessive self-defense even if the second assault went beyond the bounds of a reasonable means of self-defense, and the accused should be found guilty only of the crime of assault.
However, according to the facts mentioned above, the assaults that the accused committed against the victim are a single series of acts against an imminent and unlawful infringement, and they can be regarded as a single act based on the same intent of self-defense. Consequently, it is appropriate to consider these assaults totally and find it to be a single crime of injury through excessive self-defense. As for the point argued by the defense counsel, it is sufficient to take it into consideration as the circumstances favorable to the accused. The determination of the court of prior instance that goes along with our reasoning 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 MIYAKAWA Koji
Justice KAINAKA Tatsuo
Justice WAKUI Norio
Justice SAKURAI Ryuko
Justice KANETSUKI Seishi