(Apr. 18, 2014) The Japanese Supreme Court has recently reached different conclusions in similar cases involving golf course policies to exclude gang members from playing. Depending on the circumstances, a gang member who deceives the course employees and plays golf can be guilty of fraud.
In cases that involved two golf courses in Miyazaki Prefecture, the courses had signs at the entrances of the clubhouse buildings stating that “persons who associate with gangs are not allowed to play.” In addition, the golf courses’ adhesion contract stated that gang members are refused admittance to the facility and are not permitted to play golf. The receptionists at the courses, however, did not ask questions about visitors’ association with gangs when those visitors checked in. (2013 (a) No. 3, S. Ct., 2nd Petit bench [in Japanese] (Mar. 28, 2014), COURTS IN JAPAN.)
Some other golf courses nearby had similar procedures and gang members had the experience, that that they could play golf if they did not say anything about gang membership. At one golf course, gang member X went to play golf with another gang member. X saw the sign at the golf course, but did not say anything when he checked in and wrote his name on a sheet, played golf, and paid the fees. At the other golf course, a person who had a golf club membership asked X to play golf. At the front desk, X signed in using his own name, did not mention that he was a gang member, and paid the requisite fees before leaving the facility. The Court decided that a person’s simply not mentioning his association with a gang did not constitute an act of fraud. X was therefore found not guilty of fraud. (Id.)
A different outcome resulted in Nagano Prefecture. The golf courses in Nagano Prefecture had strict anti-gang policies. During the club membership application process, an applicant is asked whether he or she has any association with members of gangs. To be a member, an applicant must submit a letter that states he or she will not accompany gang members to the golf course. In addition, the golf course adhesion contract stated that gang members are refused entrance into the facility and not permitted to play golf. (2013 (a) No. 725, S. Ct., 2nd Petit bench [in Japanese] (Mar. 28, 2014), COURTS IN JAPAN.)
In this case, club member B made a golf reservation for himself, gang member Y, and four others. During the check-in at the front desk, B printed his name and signed the sign-in sheet, but he asked a club employee to write down the other five names. The gang member’s name was partly altered. Y intentionally avoided going through the check-in process. The employee believed none of B’s guests were gang members, because B was abiding by club membership rules. If the employee had known the party included a gang member, he would have refused to check them in and to allow them to play. After playing, B paid all the fees incurred for the entire party, using his credit card. In this case, the Court decided that B’s act constituted fraud and Y was a co-principal by conspiracy. (Id.)
A law professor, commenting on the Internet, criticized the Supreme Court’s decision in the Nagano case, arguing that fraud was not committed, because the golf course received the fees, and therefore the golf course did not incur any property damage. He also states that the golf course may lose its reputation (which is a form of property damage), but such loss is not the accused’s gain and is therefore outside the scope of the protected interest, which is what the charge of fraud properly covers. (Hisashi Sonoda, Bōryokudan goruhu wa sagizai ka? [Is It Fraud If Gangs Play Golf?], YAHOO JAPAN (Apr. 4, 2014).)
However, the majority of scholars and the Court have held that, in a case of fraud, release of the property itself or the benefit itself is the loss, regardless of whether the usual compensation was given. (HŌMU SŌGŌ KENKYŪ SHO [LEGAL AFFAIRS COMPREHENSIVE RESEARCH INSTITUTE], KEIHŌ KAKURON (sono 1) [PENAL CODE, INDIVIDUAL CRIMES (vol. 1)] 236 (2008).) Thus it appears that in the Nagano case, the Court’s judgment is consistent with precedent.