1963.05.15

1961(A)485

Keishu Vol. 17, No. 4, at 302

Judgment on the relationship between the act of causing a person's death as a result of incantation and prayer, and Article 20, paragraph (1) of the Constitution

Case charged to the court as an injury causing death

Judgment of the Grand Bench, dismissed

Osaka High Court, Judgment of December 22, 1960

1. Even if incantations and prayers have been performed as a religious act to pray for the recovery of a person afflicted with psychosis, such an act falls under the illegal use of physical force causing harm to the life, body, or the like of another person as found by the judgment in prior instance. Since the act caused the death of the victim, there is no other choice but to say that it goes beyond the limits of the guarantee of freedom of religion under Article 20, paragraph (1) of the Constitution, and the imposition of a punishment for this act by deeming it to fall under Article 205 of the Penal Code is in no way in violation of the above clause of the Constitution. 2. In the reasons (5) for the final appeal, it is argued that an inspection contained in the inspection record as of October 25, 1958, prepared by a judicial police officer had been conducted to recreate a religious rite outside of the religious context, which constitutes a blasphemy against the religion, and thus such inspection record is not competent as evidence. However, it cannot be said that, simply due to the recreation of only the external form of a religious event for the necessary purpose of an investigation and not as a religious act, such inspection is blasphemy against the religion and that the inspection record stating the circumstances of such recreation is not competent as evidence.

Article 20, paragraph (1) of the Constitution, Article 205 of the Penal Code, and Article 218, Article 220, Article 318, and Article 321, paragraph (3) of the Code of Criminal Procedure

The final appeal is dismissed.

Concerning the reasons 1, 3, and 5 for the final appeal stated by Defense Counsel KOBAYASHI Yasuhiro Arguments are only those of a violation of the Code of Criminal Procedure and an erroneous finding of facts and do not fall under reasons for final appeal under Article 405 of the Code of Criminal Procedure. (Arguments are made to allege that the court of prior instance conducted the examination of evidence with prejudice and bias and that there is an erroneous finding of a material fact. However, even through the examination of records, evidence could not be found that the court of prior instance conducted the examination of evidence with prejudice and bias in its fact-finding, and the arguments eventually resulted in the accusation that the court of prior instance sifted through evidence, made determinations, and found facts, which all are left to the discretion of such a court. In the reasons (5) for the final appeal, it is argued that an inspection contained in the inspection record as of October 25, 1958, prepared by a judicial police officer had been conducted to recreate a religious rite outside of the religious context, which constitutes a blasphemy against the religion, and thus such inspection record is not competent as evidence. However, it cannot be said that, simply due to the recreation of only the external form of a religious event for the necessary purpose of an investigation and not as a religious act, such inspection is blasphemy against the religion and that the inspection record stating the circumstances of such recreation is not competent as evidence. Besides the above, with respect to the use of the above record as evidence, it is obvious from the record (page 355) that the defendant had consented thereto, and the argument that this is documentary evidence without consent is incorrect.) Concerning the reasons, 2, 4, and 6 for the final appeal stated above Considering the allegation of a violation of the Constitution in the arguments, Article 20, paragraph (1) of the Constitution provides that freedom of religion is guaranteed to all, and paragraph (2) of the same Article provides that no person shall be compelled to take part in any religious act, celebration, rite, or practice. It goes without saying that freedom of religion is extremely important as a fundamental human right. However, Article 12 of the Constitution provides that the people shall refrain from any abuse of fundamental human rights and shall always be responsible for utilizing them for the public welfare. Article 13 of the Constitution also provides that fundamental human rights shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs. These provisions of the Constitution are never those to be referred to as instructive provisions, as stated in the arguments. Therefore, the guarantee of freedom of religion is not absolutely unlimited. Looking at this case in this regard, according to the findings in the judgment of the first instance and the judgment in prior instance that accepts the former judgment, the act of the defendant in this case was performed as a prayer of blessing using incense sticks to pray for the recovery of Victim A from a mental disorder. It is stated that in terms of the motive, means, and method for the above prayer of blessing by the defendant, as well as the degree of the assault therein that resulted in the taking of the life of the above victim etc., such an act cannot be at all accepted as a generally accepted medical treatment for a person afflicted with psychosis. If that is the case, even if the act of the defendant in this case had been performed as a kind of religious act as stated in the arguments, such an act falls under the illegal use of physical force causing harm to the life, body, or the like of another person as found by each above judgment. Since the act caused the death of the victim, it cannot be denied that the above act of the defendant is extremely antisocial, and there is no other choice but to say that it goes beyond the limits of the guarantee of freedom of religion under Article 20, paragraph (1) of the Constitution, and the imposition of a punishment for this act by deeming it to fall under Article 205 of the Penal Code is in no way in violation of the above clause of the Constitution. The determination in the judgment in prior instance to the same effect as above is legitimate, and the allegation of a violation of the Constitution in the arguments cannot be accepted. Other arguments are only those of a violation of laws and regulations and an erroneous finding of facts and do not fall under reasons for final appeal under Article 405 of the Code of Criminal Procedure. (With respect to the holding in the judgment in prior instance to the effect that it is difficult to determine the act of the defendant in this case as an act performed in the pursuit of lawful business under Article 35 of the Penal Code, this Court also finds it justifiable under the facts so determined.) Even though the Court examined the case records, it is not deemed that Article 411 of the Code of Criminal Procedure should apply. Accordingly, in accordance with Article 408 of the same Code, the Court unanimously decides as set forth in the main text of the judgment.

Grand Bench of the Supreme Court Justice YOKOTA Kisaburo Justice KAWAMURA Matasuke Justice IRIE Toshio Justice IKEDA Katsu Justice TARUMI Katsumi Justice KAWAMURA Daisuke Justice SHIMOIIZAKA Masuo Justice OKUNO Kenichi Justice ISHISAKA Shuichi Justice YAMADA Sakunosuke Justice GOKIJO Kakiwa Justice YOKOTA Masatoshi Justice SAITO Kitaro Justice KUSAKA Asanosuke