知的財産侵害に関する刑法的課題: 日本の裁判例に見る著作権法学と刑事法学との交錯

This article clarifies the “distortion” that the structural characteristic of Japanese copyright law—where civil infringement requirements and criminal constituent elements (kouseiyouken) are identical—brings to practice and theory, through an analysis of recent landmark judicial precedents. Under current law, the requirements for copyright infringement are common to both civil and criminal cases; consequently, there is no legal distinction between situations where civil injunctions are granted and those where criminal penalties with heavy statutory sentences are imposed. First, this article examines the “Haruka Yume no Ato” case, which involved the criminal liability of a leech site operator. It points out that a significant difference in interpretive guidelines has emerged regarding the interpretation of “making transmittable” between copyright scholarship, which emphasizes securing the scope of civil remedies, and criminal law scholarship, which prioritizes the punishability of the act and the protection of legal interests. Next, focusing on the “Retweet Case” on social media, the article introduces how copyright scholarship attempts to limit infringement based on criteria such as infringement subjectivity and recognizability. In contrast, from the perspective of criminal law scholarship, there are attempts to define the scope of punishment through the theories of “punishable illegality” (kabatsuteki ihosei) and “substantive illegality” (jisshitsuteki ihosei), while still affirming the fulfillment of the constituent elements. Finally, this article concludes that in order to harmonize the protection of intellectual property rights with the modesty (kenyokusei) of criminal law, it is crucial to address how to overcome theoretical challenges in the intersection of both legal fields in future legislative and interpretive discussions.