一事不再理の効力の客観的範囲 : 最判平成15年10月7日を契機として(高木絋一教授退職記念特集)

概要

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If a defendant commits multiple larceny as a habitual offender, he will, despite being punished more severely than a non-habitual offender, be regarded as having committed only one offence. For example, if he is alleged to have committed 35 counts of larceny as a habitual offender, is charged on one count and convicted, he will be regarded as being placed in jeopardy for that one offence. Even if he were to be charged on another of the 34 counts later, the prosecution would be prohibited because he would be placed in double jeopardy for the same offence. However, this would appear to be irrational and the Supreme Court held in 2003 that if a defendant is convicted of committing larceny as a non-habitual offender and is later charged on another count of non-habitual larceny, then prosecution will not be prohibited. This places more importance on the discretion of the prosecutor to charge a defendant with non-habitual larceny even though he actually may have committed as a habitual offender, and also allows a prosecutor to split multiple thefts and prosecute a defendant for one offence many times, meaning he will be placed in double jeopardy for one offence. This is, however, what Article 39 of the Constitution of Japan expressly prohibits.
2008-02-15