英語の判例検索があるそうなので自分の名前で検索してみました。
http://www.courts.go.jp/english/judgments/index.html
７件ヒットしました。常習犯みたいです。
http://www.courts.go.jp/english/judgments/text/2009.10.21-2007.-A-.No..619.html
Date of the decision
2009.10.21
Case number
2007 (A) No. 619
Reporter
Keishu Vol. 63, No. 8
Title
Decision concerning the case wherein the court determined that the crime of causing a child to commit an obscene act, which is in violation of Article 34, paragraph (1), item (vi) of the Child Welfare Act, and the crime of producing child pornography, which is set forth in Article 7, paragraph (3) of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children, constitute crimes for consolidated punishment
Case name
Case charged for violation of the Child Welfare Act, and violation of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children
Result
Decision of the First Petty Bench, dismissed
Court of the Second Instance
Sapporo High Court, Judgment of March 8, 2007
Summary of the decision
Where a person has produced child pornography by causing a child to have sexual intercourse or similar conduct and taking pictures of the scene, the crime of causing a child to commit an obscene act, which is in violation of Article 34, paragraph (1), item (vi) of the Child Welfare Act, and the crime of producing child pornography, which is set forth in Article 7, paragraph (3) of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children, constitute crimes for consolidated punishment.
References
Article 34, paragraph (1), item (vi) of the Child Welfare Act, Article 7, paragraph (3) of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children, the first sentence of Article 54, paragraph (1) and the first sentence of Article 45 of the Penal Code, Article 37 of the Juvenile Act (prior to the revision by Act No. 71 of 2008)Article 34, paragraph (1), item (vi) of the Child Welfare Act
No person shall commit an act listed in any of the following items:
(vi) Cause a child to commit an obscene act;Article 7, paragraph (3) of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children
(Provision of Child Pornography and Other Related Activities)
Any person who provides child pornography shall be sentenced to imprisonment with work for not more than three years or a fine of not more than three million yen. The same shall apply to a person who provides electromagnetic records or any other record which depicts the pose of a child, which falls under any of the items of paragraph 3 of Article 2, in a visible way through electric telecommunication lines.
(3) In addition to the preceding paragraph, any person who produces child pornography by having a child pose in any way which falls under any of the items of paragraph 3 of Article 2, depicting such pose in photographs, recording media containing electromagnetic records or any other medium shall be punished by the same penalty prescribed in paragraph 1 of this article.Article 54, paragraph (1) of the Penal Code
(Concurrence of Crimes)
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 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 37 of the Juvenile Act (prior to the revision by Act No. 71 of 2008)
(Institution of Prosecution)
1. For the following crimes committed by an adult offender, prosecution shall be instituted in a family court:
(i) the crimes under the Act on Prohibition of Smoking by Minors (Act No. 33 of 1900);
(ii) the crimes under the Minor Drinking Prohibition Act (Act No. 20 of 1922);
(iii) the crimes set forth in Article 118 of the Labor Standards Act (Act No. 49 of 1947) concerning Article 56 or Article 63 of said Act, the crimes set forth in Article 119, item (i) of said Act concerning Article 32 of said Act as applied to a person aged under 18 or Article 61, Article 62 or Article 72 of said Act, and the crime set forth in Article 120, item (i) of said Act concerning Articles 57 to 59 or Article 64 of said Act (including crimes of a business operator concerning these crimes under Article 121 of said Act);
(iv) the crimes set forth in Article 61 and Article 62, item (v) of the Child Welfare Act; and
(v) the crimes set forth in Article 144 and Article 145 of the School Education Act (Act No. 26 of 1947).
(2) In the case where any of the crimes listed in the preceding paragraph and any other crime are related to each other as prescribed in Article 54, paragraph (1) of the Penal Code (Act No. 45 of 1907), the provision of the preceding paragraph shall apply only when the case should be dealt with by the punishment prescribed for the crime listed in the preceding paragraph.
Main text of the decision
The final appeal is dismissed.
Reasons
Among the reasons for final appeal argued by the defense counsel, OKUMURA Toru, the reason alleging violation of the judicial precedent is irrelevant in this case because the cited judicial precedent addressed a different type of facts or said reason is in effect an assertion of unappealable violation of laws and regulations, and the rest are assertions of unappealable violation of laws and regulations or errors in fact finding, and none of these reasons can be regarded as a reason for final appeal permissible under Article 405 of the Code of Criminal Procedure.
Having examined the arguments, however, we make a determination by this court's own authority concerning how to count the number of crimes involving the crime of causing a child to commit an obscene act, which is in violation of Article 34, paragraph (1), item (vi) of the Child Welfare Act, and the crime of producing child pornography, which is set forth in Article 7, paragraph (3) of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children (hereinafter referred to as the "Child Pornography Act"), as well as the issue of jurisdiction regarding these crimes.1. According to the findings of the judgment in prior instance and of the judgment in first instance affirmed by the former, the facts of this case are as follows.
(1) The accused worked as a teacher of a junior high school. During the period from January 25, 2004 to May 29, 2005, on about 20 occasions, at the residence of the accused at the time of the incidents, the accused caused the victim child (aged 14 or 15 when victimized), who was enrolled at the junior high school where the appellee worked at the time of commencement of the crime, to have sexual intercourse or similar conduct with the accused, while knowing that the child was aged under 18, and by doing so, the accused caused the child to commit obscene acts. In addition, on 13 out of said 20 occasions of obscene acts, the accused caused said child to perform poses relating to sexual intercourse, filmed such poses with a digital video camera and recorded these poses on mini-digital video cassettes, which are categorized as an electromagnetic recording medium by which such poses can be visually perceived, and by doing so, the accused produced child pornography featuring said child.
(2) Based on the facts mentioned above, the accused was prosecuted in the Sapporo Family Court, Otaru Branch, for violation of the Child Welfare Act and violation of the Child Pornography Act. The Otaru Branch found these facts, and by applying the provision on a single act constituting multiple crimes when counting the number of crimes involving these crimes, rendered a guilty judgment to the accused. Against said judgment, the accused filed an appeal, which was dismissed by the judgment in prior instance.2. The defense counsel argues that since the aforementioned crimes constitute crimes for consolidated punishment, the Sapporo Family Court, Otaru Branch, has no jurisdiction over the facts concerning violation of the Child Pornography Act, in accordance with Article 37 of the Juvenile Act prior to the revision by Act No. 71 of 2008. We examine the case in light of this argument. The crime of violation of Article 34, paragraph (1), item (vi) of the Child Welfare Act consists of the act of causing a child to commit an obscene act, whereas the crime set forth in Article 7, paragraph (3) of the Child Pornography Act consists of the act of causing a child to perform any of the poses listed in the items of Article 2, paragraph (3) of the Child Pornography Act and depicting such poses in a photograph, recording medium for electromagnetic records or any other medium, thereby producing child pornography featuring said child. In this case, the accused produced child pornography by causing the victim child to have sexual intercourse or similar conduct and filming the scene, and this conduct consists of two acts, i.e. the act which is in violation of Article 34, paragraph (1), item (vi) of the Child Welfare Act, and the act which is in violation of Article 7, paragraph (3) of the Child Pornography Act. These acts, although they have some aspects in common, cannot be regarded as such acts which are usually committed together. The respective manners in which a person conducts these two acts, in light of the nature, etc. thereof, can be deemed to differ from each other according to the socially accepted views (See 1972 (A) No. 1896, judgment of the Grand Bench of the Supreme Court of May 29, 1974, Keishu Vol. 28, No. 4, at 114). For these reasons, we should say that these two acts cannot be regarded as such crimes that constitute a single crime as set forth in the first sentence of Article 54, paragraph (1) of the Penal Code, but they should be deemed to constitute the crimes for consolidated punishment as set forth in the first sentence of Article 45 of said Code. In consequence, the judgment in prior instance is in violation of laws and regulations in that it affirmed the judgment in first instance which determined that the crime set forth in Article 7, paragraph (3) of the Child Pornography Act was also subject to the jurisdiction of a family court pursuant to Article 37 of the Juvenile Act prior to said revision, and tried and judged the case.
However, the accused is otherwise found to be guilty of the crime of violation of Article 34, paragraph (1), item (vi) of the Child Welfare Act, and we cannot find any special disadvantage to the accused, which has been caused by the family court making a determination on the crime set forth in Article 7, paragraph (3) of the Child Pornography Act in addition to said crime under the Child Welfare Act. In light of these facts, we cannot recognize that the judgment in prior instance would bring about a considerable injustice if it were not quashed on the grounds of such violation of laws and regulations.Therefore, according to Article 414 and Article 386, paragraph (1), item (iii) of the Code of Criminal Procedure, the decision is rendered in the form of the main text by the unanimous consent of the Justices.
Presiding Judge
Justice SAKURAI Ryuko
Justice KAINAKA Tatsuo
Justice WAKUI Norio
Justice MIYAKAWA Koji
Justice KANETSUKI Seishi
