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Japan: Supreme Court Says Pretense of Being Deceived Did Not Affect Responsibility for Attempted Fraud

(Jan. 11, 2018) On December 11, 2017, Japan’s Supreme Court rendered a decision in a fraud case in which the victim cooperated with the police investigation after she realized the fraud had occurred. (Sup. Ct., Case No. 2017 (a) 1079 (Dec. 11, 2017) (click characters beside PDF icon at the bottom) (in Japanese).)

In this case, an unidentified person (the main perpetrator) persuaded the victim to join a false scheme for winning the lottery and asked her to send 1.2 million yen (about US$10,000) in cash to a specified address. Subsequently, the victim, who is in her 80s, realized the scheme was false and contacted the police. The victim cooperated with the police investigation of the case, pretending she still believed in the scheme. The defendant joined the unidentified person in the scheme after the victim realized the fraud had occurred and took on the role of receiving a box at the specified address. The victim sent an empty box to that address, and then the police arrested the defendant for attempted fraud when he received the box. (Id.; Penal Code, Act No. 45 of 1907, amended by Act No. 72 of 2017, arts. 44, 60, 246 & 250; English translation of Penal Code, Act No. 45 of 1907, Japanese Law Translation website (does not reflect amendments following Act No. 54 of 2007).)

The Fukuoka District Court acquitted the defendant because he had not participated in deceiving the victim. However, the Fukuoka High Court found the defendant guilty as a co-principal of attempted fraud. (Sup. Ct., Case No. 2017 (a) 1079.)

The Supreme Court upheld the High Court decision, stating that the defendant conspired with the unknown person after the person deceived the victim and was involved in the act of receiving money, which is one of the planned, coordinated acts that constitute a fraud. The Court stated, therefore, that the defendant is responsible for the attempted fraud, including the part in which he was not actively involved, as a co-principal. The Court stated that, in this case, the police tactics of having the victim act as if she was still deceived did not affect the defendant’s responsibility. (Id.)

Background

The number of cases of fraud identified by the police in Japan has increased since 2002. (Ministry of Justice, Crime Whitepaper, bk. 1, ch. 1, §§ 2 & 2(4) (2013), Ministry of Justice website (in Japanese).) The increase is due to “special fraud,” a type of fraud committed by strangers via phone, fax, or email, becoming more common. (Id.; Special Fraud (“Transfer Money” Fraud) (Dec. 28, 2017), Metropolitan Police Dept. website (in Japanese).) These special frauds mainly target elderly persons. (Headquarters Against Special Fraud, Regarding the Situation of Special Frauds During the First Half of 2017, at 2 (Aug. 4, 2017) (in Japanese), METROPOLITAN POLICE DEPT.) The case recently decided by the Supreme Court is considered an instance of special fraud.