前払いの場合でも犯罪収益仮装罪になるという判例
http://www.courts.go.jp/english/judgments/text/2008.11.04-2008.-A-.No..865.html
Date of the decision
2008.11.04
Case number
2008 (A) No. 865
Reporter
Keishu Vol. 62, No. 10
Title
Decision concerning the case where a person has faked the facts regarding the acquisition of the property before the commencement of the commission of a criminal act, such as an advance payment of price, and whether or not such person is found guilty of the "crime of faking facts regarding the acquisition of criminal proceeds, etc." prescribed in the first sentence of Article 10, paragraph (1) of the Act for Punishment of Organized Crimes, Control of Crime Proceeds and Other Matters
Case name
Case charged for violation of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children, and violation of the Act for Punishment of Organized Crimes, Control of Crime Proceeds and Other Matters
Result
Decision of the Third Petty Bench, dismissed
Court of the Second Instance
Osaka High Court, Judgment of April 17, 2008
Summary of the decision
1. The definition of the term "property acquired through a criminal act" set forth in Article 2, paragraph (2), item (i) of the Act for Punishment of Organized Crimes, Control of Crime Proceeds and Other Matters can be satisfied by any property that is acquired through a criminal act; therefore, even property acquired by a person before he/she commences the commission of a criminal act, such as an advance payment of price, can be regarded as falling within the scope of "crime proceeds" as far as the crime is later actually committed, and if the person has faked facts regarding the acquisition of such property, he/she should be found guilty of the "crime of faking facts regarding the acquisition of crime proceeds, etc." prescribed in the first sentence of Article 10, paragraph (1) of said Act.2. In order to indicate the facts constituting the "crime of faking facts regarding the acquisition of crime proceeds, etc." prescribed in the first sentence of Article 10, paragraph (1) of the Act for Punishment of Organized Crimes, Control of Crime Proceeds and Other Matters, it is sufficient to show that the property acquired through a criminal act falls within the scope of "crime proceeds" under said Act, and according to this reasoning, the judgment of first instance completely indicated the facts constituting this crime.
3. In cases where a person provides, for value, child pornography to an orderer by sending it to the latter, the total amount of money that is found to have been acquired by the provider from the orderer through the act of providing the child pornography constitutes "property acquired through a criminal act" and falls within the scope of "criminal proceeds" prescribed in the Act for Punishment of Organized Crimes, Control of Crime Proceeds and Other Matters, and therefore even if the provider has actually disbursed part of such money as carriage when providing child pornography, the amount thus disbursed shall also be subject to the collection of money equivalent to the value of criminal proceeds, and the amount to be collected should not be calculated by deducting the disbursed amount from the total value.
References
(Concerning 1 to 3) Article 2, paragraph (2) and the first sentence of Article 10, paragraph (1) of the Act for Punishment of Organized Crimes, Control of Crime Proceeds and Other Matters; (Concerning 2) Article 335, paragraph (1) of the Code of Criminal Procedure; (Concerning 3) Article 13, paragraph (1) and the main clause of Article 16, paragraph (1) of the Act for Punishment of Organized Crimes, Control of Crime Proceeds and Other Matters, the first sentence of Article 7, paragraph (4) of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of ChildrenArticle 2, paragraph (2) of the Act for Punishment of Organized Crimes, Control of Crime Proceeds and Other Matters
(Definitions)
(2) The term "crime proceeds" as used in this Act means the following property:
(i) property arising from or acquired through a criminal act constituting any of the crimes listed in the appended table which was committed for the purpose of acquiring illicit profits (including an act committed outside Japan, which would constitute any of these crimes if it were committed in Japan and which constitutes a crime under the laws and regulations of the place where it is actually committed) or property acquired as a reward for such criminal act;
(ii) funds provided through a criminal act constituting any of the following crimes (including an act committed outside Japan, which would constitute any of the crimes listed in (a), (b) or (d) if it were committed in Japan and which constitutes a crime under the laws and regulations of the place where it is actually committed):
(a) the crime set forth in Article 41-10 of the Stimulants Control Act (Act No. 252 of 1951) (Provision, etc. of Funds, etc. Pertaining to Import, etc. of Ingredients of Stimulants);
(b) the crime set forth in Article 13 of the Anti-Prostitution Act (Act No. 118 of 1956) (Provision of Funds, etc.);
(c) the crime set forth in Article 31-13 of the Act for Controlling the Possession of Firearms or Swords and Other Such Weapons (Act No. 6 of 1958) (Provision of Funds, etc.);
(d) the crime set forth in Article 7 of the Act on Prevention of Physical Injury by the Use of Sarin, etc. (Act No. 78 of 1995) (Provision of Funds, etc.);
(iii) property provided through a criminal act constituting the crime set forth in Article 14, paragraph (1), item (vii) of the Unfair Competition Prevention Act (Act No. 47 of 1993) (Provision, etc. of Illicit Profit to Foreign Public Officials, etc.), which is involved in violation of Article 11, paragraph (1) of said Act (including an act committed outside Japan, which would constitute said crime if it were committed in Japan and which constitutes a crime under the laws and regulations of the place where it is actually committed);
(iv) funds involved in the crime prescribed in Article 2 of the Act for Punishment of the Financing of Criminal Activities for the Purpose of Intimidation of the General Public and of Governments (Act No. 67 of 2002) (Provision of Funds)The first sentence of Article 10, paragraph (1) of the Act for Punishment of Organized Crimes, Control of Crime Proceeds and Other Matters
(Concealment of Crime Proceeds, etc.)
A person who has faked facts regarding the acquisition or disposition of crime proceeds, etc. (excluding funds involved in the crime prescribed in Article 2, paragraph (2) of the Act for Punishment of the Financing of Criminal Activities for the Purpose of Intimidation of the General Public and of Governments; hereinafter the same shall apply in this paragraph and the following Article) or concealed crime proceeds, etc. shall be punished with imprisonment with work for not more than five years or a fine of not more than three million yen, or both.Article 335, paragraph (1) of the Code of Criminal Procedure
(1) When pronouncing a sentence, the court shall signify the facts constituting the crime, the list of evidence, and the application of laws and regulations.Article 13, paragraph (1) of the Act for Punishment of Organized Crimes, Control of Crime Proceeds and Other Matters
(Confiscation, etc. of Crime Proceeds, etc.)
The following property may be confiscated if it exists in the form of real property or movables or a monetary claim (meaning a claim for payment of money; the same shall apply hereinafter):
(i) crime proceeds (excluding those falling within the scope of property listed in item (vi));
(ii) property derived from crime proceeds (excluding those acquired through holding or disposing of crime proceeds which fall within the scope of property listed in item (vi));
(iii) a share or equity based on the state of a shareholder, etc. involved in the crime set forth in Article 9, paragraph (1), which has been acquired by using illicit profits, etc. (excluding drug crime proceeds, property acquired by holding or disposing of such proceeds, or any other property in which such proceeds or property is intermixed with other property; referred to as "[drug crime proceeds, etc./illicit profits from drugs, etc.?]" in paragraph (4)); hereinafter the same shall apply in this paragraph);
(iv) a claim involving the crime set forth in Article 9, paragraph (2) or paragraph (3), which is acquired by using illicit profits, etc. (if the claim is a claim to seek return of the property used to acquire it which is regarded as illicit profits, etc., such illicit profits, etc.);
(v) crime proceeds, etc. involved in the crime set forth in Article 10 or Article 11;
(vi) property arising from any of the criminal acts set forth in Article 9, paragraph (1) to paragraph (3) or criminal act set forth in Article 10 or Article 11, which is committed by using illicit profits, etc., or property acquired through such criminal acts, or property acquired as a reward for such criminal acts; and
(vii) property acquired as the fruits of the property set forth in item (iii) to the preceding item, property acquired in exchange for the property set forth in these items, property acquired in exchange for the former two, or property acquired by holding or disposing of the property set forth in these itemsThe main clause of Article 16, paragraph (1) of the Act for Punishment of Organized Crimes, Control of Crime Proceeds and Other Matters,
(Collection of Equivalent Value)
When property listed in any of the items of Article 13, paragraph (1) does not exist in the form of real property or movables or a monetary claim, or it is unable to be confiscated for other reasons, or when it does not seem to be appropriate to confiscate such property because of the nature of the property, the status of use thereof, the existence or non-existence of rights to the property held by persons other than the criminal and other circumstances concerned, money equivalent to the value of such property may be collected from the criminal.The first sentence of Article 7, paragraph (4) 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 to unspecified persons or a number of persons, or displays it in public shall be sentenced to imprisonment with work for not more than five years and/or a fine of not more than five million yen.
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 a judicial precedent is irrelevant in this case because the cited precedent addresses different types of facts or is in effect nothing more than an assertion of unappealable violation of laws and regulations, and the rest, including the reason alleging violation of the Constitution, are in effect assertions of unappealable violation of laws and 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 violating the Act for Punishment of Organized Crimes, Control of Crime Proceeds and Other Matters (hereinafter referred to as the "Organized Crime Punishment Act") in this case.
1. According to the case records, the outline of the facts pertaining to the violation of the Organized Crime Punishment Act charged in this case is as follows.
(1) The accused was prosecuted for the crime of violating the Organized Crime Punishment Act, for the following charged facts: "The accused provided, for value, child pornographic DVDs on which was recorded video of children under 18 years of age engaged in sexual intercourse, to a number of unspecified persons. As indicated in the list of criminal facts attached hereto, on nine occasions during the period from around October 16 to December 1, 2006, the accused had A and others (eight persons in total) pay by funds transfers a total of 228,000 yen as the prices offered for the provision of the DVDs, which fall within the scope of crime proceeds, from X Branch of Bank P located in Yao City, Osaka, and seven other places, into the ordinary deposit account held in a borrowed name, or more specifically, in the name of B, which had been opened with Y Branch of Bank Q located in Chuo-ku, Osaka City, and managed by the accused, thereby having those persons deposit such amount in said account; by doing so, the accused faked facts regarding the acquisition of crime proceeds, etc." A document entitled "List of Criminal Facts" was attached to the charging sheet which stated the charged facts mentioned above, and it indicated information such as the purchasers, offered prices, dates of payment of the prices, and names of the payers' banks.
(2) The judgment of first instance, while citing said charged facts as the criminal facts constituting the violation of the Organized Crime Punishment Act, found the accused guilty of the crime of faking facts regarding the acquisition of crime proceeds, etc. as prescribed in the first sentence of Article 10, paragraph (1) of said Act (hereinafter referred to as the "crime of faking facts regarding the acquisition of criminal proceeds"). The judgment of first instance also found facts constituting violation 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"), which was the case tried jointly with the case of the crime under the Organized Crime Punishment Act, and by applying the relevant laws and regulations to these cases, it sentenced the accused to imprisonment with work for two years and six months (with a three-year suspension of execution of the sentence under probation) and a fine of one million yen, and also ordered collection of 228,000 yen from the accused.
(3) The accused first had A and others pay by funds transfers a total of 228,000 yen as the prices for the child pornographic DVDs ordered by them, into said bank account held in the borrowed name, and then provided the DVDs to these persons by sending the same to them. It is clear that the judgment of first instance, which was affirmed by the judgment of prior instance, considered that this act of providing the DVDs constituted the criminal act prescribed in the first sentence of Article 7, paragraph (4) of the Child Pornography Act (hereinafter referred to as the "act of providing child pornography"), and therefore the 228,000 yen mentioned in (1) above fell within the scope of "criminal proceeds" under the Organized Crime Punishment Act (item (lix) of the appended table of said Act), and according to this reasoning, the judgment of first instance ordered the collection of said amount from the accused as money equivalent to the value of such criminal proceeds, alleging that said amount is unable to be confiscated from the accused.2(1) The defense counsel argues as follows. It was before the accused commenced the commission of the crime from which the accused later acquired criminal proceeds (hereinafter referred to as the "predicate crime"), that the accused had A and others pay by funds transfers the prices of the child pornographic DVDs into the bank account held in the borrowed name, and at that point in time, said prices did not fall within the scope of "criminal proceeds" set forth in Article 2, paragraph (2) of the Organized Crime Punishment Act, and therefore the accused cannot be found to have faked facts regarding the acquisition of "criminal proceeds." The judgment of first instance and the judgment of prior instance that affirmed the former were in violation of laws and regulations in that the judgment of first instance found the accused guilty of the crime of faking facts regarding the acquisition of criminal proceeds. The judgment of first instance affirmed by the judgment of prior instance is also illegal for insufficient reasons for judgment because it failed to indicate the details of the predicate crime as part of the facts constituting the crime.
However, it should be construed that the definition of the term "property acquired through a criminal act" set forth in item (i) of Article 2, paragraph (2) of the Organized Crime Punishment Act, the clause which defines the term "criminal proceeds," in light of its literary meaning and the legislative purpose of said Act (Article 1), can be satisfied by any property that is acquired through the criminal act, and this does not depend on whether the property is acquired before or after the commission of the criminal act. Therefore, even property acquired by a person before he/she commences the commission of the predicate crime, such as an advance payment of price, can be regarded as constituting "property acquired through a criminal act" and falling within the scope of "crime proceeds" as far as the predicate crime is later actually committed, and if the person has faked facts regarding the acquisition of such property, he/she should be found guilty of the crime of faking facts regarding the acquisition of crime proceeds. In order to indicate the facts constituting this crime, it is sufficient to show that said property falls within the scope of "crime proceeds" under said Act. The judgment of first instance affirmed by the judgment of prior instance indicated that the total amount of 228,000 yen, which was paid into the bank account held in the borrowed name and managed by the accused, is property acquired through the act of providing child pornography, and based on this view, it found the accused to have faked facts regarding the acquisition of such property and therefore found him/her guilty of the crime of faking facts regarding the acquisition of crime proceeds. In conclusion, it is clear that the judgment of first instance completely indicated the facts constituting this crime.
(2) The defense counsel also argues as follows. The accused appropriated part of the price paid by A and others by funds transfers, namely 500 yen per case, to pay carriage for sending the DVDs to these persons, and therefore the amount thus appropriated to such carriage (4,500 yen in total for the nine cases) should not be subject to the collection of money equivalent to the value of criminal proceeds. On the contrary, the judgment of first instance ordered collection of the total amount of 228,000 yen from the accused. In this respect, the judgment of first instance and the judgment of prior instance that affirmed the former are in violation of laws and regulations.
However, in cases where a person provides, for value, child pornography to an orderer by sending it to the latter, the total amount of money that is found to have been acquired through the act of providing the child pornography constitutes "property acquired through a criminal act" and falls within the scope of "criminal proceeds," irrespective of whether the provider has acquired the price for the child pornography from the orderer with carriage included in such price or the provider has acquired carriage separately from the price. In consequence, it is appropriate to construe that even if the provider has actually disbursed part of the acquired money as carriage when providing child pornography, the amount to be collected as money equivalent to the value of criminal proceeds should not be calculated by deducting such disbursed amount from the total value.
(3) The holdings of the court of prior instance that go along with our conclusions mentioned in (1) and (2) above are justifiable.Therefore, according to Article 414 and Article 386, paragraph (1), item (iii) 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.
Presiding Judge
Justice KONDO Takaharu
Justice FUJITA Tokiyasu
Justice HORIGOME Yukio
Justice NASU Kohei
Justice TAHARA Mutsuo
(This translation is provisional and subject to revision.)
