~Appeal to the Court of Second Instance (Kōso)~
Kōso means an appeal to a high court against a judgement of court of first instance. Appeal is application for filing an objection against a pending decision to a higher court.
Both the public prosecutor’s side and the defense side may make an appeal to the court of second instance; however, in a case which was appealed by the defense side, the second instance court may not pronounce heavier sentence than that handed down by the first instance court.
~Procedure of Kōso and Proceedings of Kōso Hearing~
In order to appeal to the court of second instance, it is necessary to submit a written application for Kōso appeal, and a statement of reasons for Kōso appeal in a certain period. The period of submission of Kōso is within 14 days after the pronouncement of judgement. One has to submit the written application for Kōso appeal to the first instance court within this period. When time ran beyond the period, the right to appeal to the court of second instance would be extinguished, and an Kōso appeal which was made after that would be dismissed by the decision of the court of first court.
When an application for Kōso is made, a clerk of the court of first instance informs of the application to the other party. After a certain period has passed, the court of first instance sends the case records and evidence to the court of appeal. The court of appeal which has received the case records informs a person filing the application for Kōso of the last date of submission of the statement of reasons for Kōso appeal (no earlier than 21th days after the notification) serving the notification specifying the date.
A person filing an application for Kōso appeal has to write the reasons for Kōso briefly and attach necessary materials for prima facie showing. Once the court of appeal receives the statement of the reasons for Kōso, it sends the copy to the other party. The other party may submit a written answer to the statement of the reasons for Kōso.
Categories of Reasons for Kōso
Violation of Laws and Regulations in the Court Proceedings(Article 377, 378, and 379 of the Code of Criminal Procedure)
As the purpose of the appeal to the court of second instance is to correct error in the original decision, there is no need to accept the appeal if the reasons for appeal do not have any effect on the original decision. Therefore, as regard with the violations of law and regulations in the court proceedings, it is necessary to show that the violation could influence the original decision. Thus, the reasons for appeal which are accepted only when it is clear that the violation has an effect on the original decision are called relative grounds for appeal, while the reasons for appeal which are accepted when it is assumed that the fact of a violation itself could have influence on the original decision are absolute grounds for appeal.
Absolute reasons for appeal of violations of law and regulations in the court proceedings are as follows:
- The court that rendered the judgement was not configured in accordance with law;
- A judge who cannot take part in a judgement in accordance with laws and regulations took part in the judgement;
- There was a violation of legal provisions pertaining to the trial being open to the public;
- The court unlawfully found jurisdiction or lack of jurisdiction;
- The court unlawfully accepted or dismissed prosecution;
- The court did not reach a judgement in a case for which a trial had been requested, or did reach a judgement in a case for which a trial had not been requested;
- The judgement was groundless, or there was a discrepancy regarding its grounds.
Error in the Application of Laws and Regulations (Article 380 of the Code of Criminal Procedure)
This means a case where a court made an error in the application of laws and regulations.The court finds the fact on a base of evidence expressed during the trial and renders a judgement applying laws and regulations to the fact. At that time, if the court did not apply laws and regulations that should be applied or it applied those that should not be applied, which can be the reasons for appeal to the court of second instance. In this case, it is also necessary to show that it is obvious that the error influences the judgement.
Unreasonable Sentence (Article 381 of the Code of Criminal Procedure)
As a sentence is a comprehensive judgment done by the court after finding various facts and evaluating them, it can be said that to some extent the court has a discretion on which sentence be imposed within the statutory penalty. However, the discretion is unreasonable beyond the reasonable range, which may constitute the reasons for appeal to the court of second instance.
Error in Finding of the Facts (Article 382 of the Code of Criminal Procedure)
The case where the documentary evidence which is based on the decision of the court of second instance cannot permit the finding of the facts done by the original decision is called an error in finding of the facts. And this can be a reason for appeal to the court of second instance when the error would clearly affect the judgement.
Grounds for Retiral etc. (Article 383 of the Code of Criminal Procedure)
Where there are grounds on which it is possible to request a retrial or there was abolition of punishment after the judgement was rendered, which may be a reason for appeal to the court of second instance. Even if the grounds for retrial are accepted within the period of filing of appeal, one should request for retrial after a judgment was finalized. This is because of circumlocutory.
~Role of Lawyer in the Court of Second Instance~
1. Preparation for the Statement of the Reasons for Appeal
The subject for judgement at the court of second instance all depends on whether the reasons for appeal designated by law are accepted or not. The judge of the court of second instance examines whether there were any errors in the original decision based on the context written in the statement of the reasons for appeal, and then makes a judgement on presence or absence of the reasons for appeal. Therefore, the statement of the reasons for appeal is of extreme importance.
One must read up on the judgement of first instance, find out weak points in its logic, and then discuss them persuasively. These are the very abilities which are called into question as a lawyer and the most important defense activities at the court of second instance.
2. Collection and Submission of New Evidence
The court of second instance examines whether there were any errors in the judgement of the court of first instance on a bases of the circumstances at the time of the judgement. Thus, in principle, the court of second instance must presuppose the facts shown in the evidences examined by the court of first instance. However, in cases where the reasons for appeal are an error in finding the facts or unreasonable sentence, the evidence which could not be requested for examination for an unavoidable reason before the closing statement during the first instance is to be examined.
Even the evidence which was not requested for examination nor examined during the first instance can be examined at the discretion of the court of appeal when it deems necessary to determine right or wrong of the judgement of first instance.
In addition, the court of appeal, at its discretion, may examine the circumstances which can influence on the sentencing even though the circumstances appeared after the judgement of first instance. For example, the out-of-court settlement or re-employment made after the judgement of first instance.
3. Activities for Release
The bailment would become invalid once pronounced the sentence of more than the imprisonment without work. Even if one was released on bail, he/she would be detained again just as sentenced to an actual sentence. In this case, it is possible to release the detainee by requesting for release on bail again. However, in case of re-bail, the amount of bail generally increases, so it is necessary to prepare for bail in advance.
AICHI Criminal Cases Law Firm scrutinizes the contents of the judgement of first instance and aims at putting the injustice judgement to right.