Supreme Court, Second Petty Bench · October 5, 2026 · Reiwa 7 (2025) (A) No. 868 · Judgment; judgment below and first-instance judgment reversed and case remanded

The Court reversed the judgment below and the first-instance judgment, which had tried and adjudicated thefts added by amendment of the count without any prosecution having been instituted and which stood in a relationship of concurrent offenses, as judgments on a case for which adjudication was not requested, and remanded the case to the first-instance court.

Theft and violation of the Act on Punishment of Organized Crimes and Control of Proceeds of Crime (criminal case)

Facts

The public prosecutor prosecuted the defendant on two counts of theft of cash from automated teller machines in conspiracy with unidentified persons (the initial counts). The prosecutor later asked the first-instance court to amend the counts by adding four further thefts from automated teller machines at other times and places (the additional counts), and the court permitted the amendment. The first-instance court treated the initial and additional counts as thefts, sentenced the defendant as concurrent offenses together with other thefts and offenses of concealing criminal proceeds, and imposed imprisonment with work for three years and a fine of 500,000 yen, the imprisonment suspended for five years. On the prosecutor's appeal, the court of appeal quashed the first-instance judgment on the ground that the sentence was unduly lenient, and sentenced the defendant to imprisonment with work for two years and ten months and a fine of 1,000,000 yen.

Issue

Can facts that lack identity of the facts charged with the initial counts and stand in a relationship of concurrent offenses with them be made the subject of adjudication by amendment of the counts, without a prosecution having been instituted?

Ruling

The Court held that the judgment below was correct in treating the initial and additional counts as concurrent offenses, but that the additional counts lacked "identity of the facts charged" (Article 312(1) of the Code of Criminal Procedure) with the initial counts and should in principle have been prosecuted as separate offenses, so that they could not be made the subject of adjudication by amendment of the counts. It found nothing in the record that would permit treating the amendment as equivalent to the institution of a prosecution on the additional counts. Accordingly, the judgment below, which tried and adjudicated the additional counts, misapplied that paragraph and rendered judgment on "a case for which adjudication has not been requested" within the latter part of Article 378(iii). Because the first-instance judgment had the same defect, the Court reversed both judgments and remanded the case to the first-instance court for further proceedings, taking into account whether a prosecution had been instituted on the additional counts. The opinion was unanimous. One Justice wrote a supplementary opinion. In outline, it states that there is an essential difference between a supplementary prosecution, which opens a new adjudicatory proceeding, and the addition of a count, which is an act within a proceeding already opened; that the illegality concerning the existence of a request for adjudication does not depend on the degree of prejudice to the defendant or on consent; that treating the amendment as a prosecution would deprive of meaning the rule limiting amendment to cases that do not impair identity of the facts charged; and that such a situation is undesirable for speedy trial and procedural economy, so that all concerned must take sufficient care.

Provisions

Code of Criminal Procedure, arts. 312(1), 378(iii), 411(i), 413 main text