| Date of the decision | 2003.3.18 |
| Case number | 2002(A)No.805 |
Source:
Online list of judgments of the Japanese Supreme Court
Decision upon the case adjudging that,
where a foreign national who has been living separately from his
Japanese wife forcibly takes away his child who has been in the custody
of his wife for the purpose of taking the child to his home country,
such an act of the foreign national shall constitute an offense of
kidnapping for the purpose of transporting the kidnapped person to a
foreign country
Date of the decision: 2003.03.18
Case number: 2002(A)No.805
Reporter: Keishu Vol.57, No. 3, at 371
Title: Decision upon the case adjudging that, where
a foreign national who has been living separately from his Japanese
wife forcibly takes away his child who has been in the custody of his
wife for the purpose of taking the child to his home country, such an
act of the foreign national shall constitute an offense of kidnapping
for the purpose of transporting the kidnapped person to a foreign
country
Case name: Case to be brought for kidnapping for the
purpose of transporting the kidnapped person to a foreign country and
destruction of objects
Result: Decision of the Second Petty Bench, dismissed
Court of the Second Instance: Tokyo High Court, Judgment of March 15, 2002
Summary of the decision:
Where a person of Dutch nationality, who has been
living separately from his Japanese wife, forcibly takes his two-year
and four-month-old daughter, who has been in the custody of his wife,
from the hospital where she is staying, for the purpose of taking her
away to the Netherlands, such an act of the Dutch person shall
constitute an offense of kidnapping for the purpose of transporting the
kidnapped person to a foreign country, and cannot be justified even if
consideration is given to the fact that the Dutch person intended to
take his daughter back to his home country as one of the persons having
parental power over her.
References:
Article 35 of the Penal Code
An act done in accordance with laws or ordinances or in the pursuit of lawful business is not punishable.
Article 226(1) of the Penal Code
A person who kidnaps or abducts another for the
purpose of transporting the same to a foreign country shall be punished
with imprisonment with labor for a limited period of not less than two
years.
Main text of the decision:
The jokoku appeal of this case shall be dismissed.
The defendant shall bear the cost for this instance.
Reasons:
The grounds for the jokokuappeal argued by the
jokoku appeal attorney MAKI Yukio , including the one alleging
violation of the Constitution, are in effect mere claims of violation
of laws, errors in facts, or inappropriateness in sentencing, none of
which can be regarded as a legal ground for Jokoku-appeal under Article
405 of the Code of Penal Procedure.
Based on the jokoku appellant's argument, the
establishment of an offense of kidnapping for the purpose of
transmitting the kidnapped person to a foreign country shall be
determined ex officio.
Given the facts found in the second instance
judgment approved by the second instance judgment, the defendant of
Dutch nationality had been married to a Japanese woman but living
separately from her. At about 3:15 a.m. on September 25, 2000, he took
the daughter (aged two years and four months at that time) of the
marriage between him and his wife, who had been in the custody of his
wife, from the hospital where she was staying accompanied by his wife
(located in A-Machi, Minamikoma-Gun, Yamanashi), by pulling her by the
legs, hanging her upside down and wedging her between his arm and
waist. He then put her in a car that he had made ready in advance,
started the car and drove away.
Given the facts outlined above, the defendant
forcibly took his daughter, who had been living peacefully in the
custody of his separated wife, one of the persons jointly having
parental power over his daughter, from the hospital where she was
staying, for the purpose of taking her away to a foreign country,
thereby taking her away from the environment where she had been
protected and in effect putting her under his control. Such an act of
the defendant shall evidently constitute an offense of kidnapping for
the purpose of transporting the kidnapped person to a foreign country.
Furthermore, in light of his malicious manner in which the act was
conducted, it shall not be regarded as an exceptional act that can be
justified even though consideration is given to the facts that the
defendant was one of the persons jointly having parental power over his
daughter and he intended to take her back to his home country.
Therefore, the second instance judgment acknowledging the establishment
of an offense of kidnapping for the purpose of transporting the
kidnapped person to a foreign country shall be justifiable.
In the end, the decision was rendered in the form of
the main text by the unanimous consent of the Justices under Articles
414, 386(1)(iii), and 181(1)[main text] of the Code of Criminal
Procedure.
Presiding Judge, Justice KAMEYAMA Tsugio
Justice FUKUDA Hiroshi
Justice KITAGAWA Hiroharu
Justice KAJITANI Gen
Justice TAKII Shigeo
