Attempt And Impossibility In Criminal Law Of Japan
Attempt and Impossibility in Japanese Criminal Law
1. Introduction
In Japanese criminal law, an attempt occurs when a person intends to commit a crime and takes direct action toward its commission, even if the crime is not completed.
Impossibility arises when, due to circumstances unknown to the offender, it is factually or legally impossible to complete the intended crime.
The Penal Code of Japan (PC), 1907, as amended) regulates attempts and their criminal liability:
Article 43 (Attempted Offences): Attempted crimes are punishable if the act has clearly commenced toward commission.
Article 44 (Impossibility): Criminal liability exists even if completion was factually or legally impossible, provided the intent and overt act are present.
2. Legal Principles
A. Attempt (Shikō)
Intent – Defendant must intend to commit a crime.
Overt Act – Must take a substantial step toward the crime, not merely preparation.
Punishment – Usually less severe than completed offence, but legally punishable.
B. Impossibility
Factual Impossibility – Crime could not be completed due to circumstances unknown to the offender (e.g., trying to pickpocket an empty pocket).
Legal Impossibility – Act cannot be a crime under law, even if intended (e.g., attempting to bribe someone who is already a public official but immune under law).
Criminal Liability – Japanese courts generally hold the offender liable if there was intent and overt action.
3. Key Case Laws
Here are seven important cases demonstrating how Japanese courts handle attempt and impossibility:
Case 1: Supreme Court, 1953 – Attempted Murder
Facts: Defendant fired at victim intending to kill, but victim survived unharmed.
Held: Court convicted for attempted murder under Article 43.
Significance: Shows that failure of crime due to circumstances beyond control does not negate liability.
Case 2: Supreme Court, 1961 – Attempted Theft
Facts: Defendant tried to steal money from an empty cash register.
Held: Convicted for attempted theft.
Significance: Factual impossibility does not absolve criminal responsibility if intent and act are present.
Case 3: Supreme Court, 1972 – Attempted Arson with Non-Flammable Material
Facts: Defendant attempted to set fire using a substance that could not ignite.
Held: Convicted under attempt provisions.
Significance: Impossibility due to ineffectiveness of means is irrelevant if intent and overt act exist.
Case 4: Tokyo High Court, 1985 – Attempted Fraud with Invalid Documents
Facts: Defendant presented forged contract to defraud, but documents were legally invalid and unenforceable.
Held: Convicted for attempted fraud.
Significance: Legal impossibility does not prevent liability if intent to commit crime is clear.
Case 5: Osaka District Court, 1990 – Attempted Sexual Assault
Facts: Defendant tried to assault a person who had already left the scene.
Held: Convicted for attempted sexual assault.
Significance: Even though completion was factually impossible, attempt liability applies.
Case 6: Supreme Court, 2001 – Attempted Drug Trafficking
Facts: Defendant intended to sell narcotics but substance seized was non-illegal powder.
Held: Convicted for attempt.
Significance: Criminal liability exists despite substance being legally inert, because intent and action are present.
Case 7: Supreme Court, 2010 – Attempted Bribery
Facts: Defendant offered bribe to official who had no authority to accept it.
Held: Convicted under Article 43 (attempt).
Significance: Confirms legal impossibility does not exempt the offender.
4. Key Principles from Case Law
Intent plus overt act = liability, even if crime fails.
Factual impossibility (e.g., empty pocket, non-existent victim) does not exempt.
Legal impossibility (e.g., offering bribe to ineligible official) also results in liability.
Punishment is generally lower than for completed offence.
Japanese courts emphasize mens rea (criminal intent) and substantial steps over actual completion.
5. Summary Table of Cases
| Case | Year | Crime | Issue | Held | Significance |
|---|---|---|---|---|---|
| Attempted Murder | 1953 | Murder | Victim survived | Convicted | Attempt suffices |
| Attempted Theft | 1961 | Theft | Empty cash register | Convicted | Factual impossibility irrelevant |
| Attempted Arson | 1972 | Arson | Non-flammable material | Convicted | Ineffective means irrelevant |
| Attempted Fraud | 1985 | Fraud | Invalid documents | Convicted | Legal impossibility irrelevant |
| Attempted Sexual Assault | 1990 | Assault | Victim absent | Convicted | Factual impossibility irrelevant |
| Attempted Drug Trafficking | 2001 | Narcotics | Non-drug powder | Convicted | Focus on intent |
| Attempted Bribery | 2010 | Bribery | Official ineligible | Convicted | Legal impossibility irrelevant |
6. Conclusion
Japanese criminal law recognizes attempts as punishable, even if completion is impossible.
Both factual and legal impossibility do not absolve liability if the offender had criminal intent and took substantial steps.
Courts consistently focus on mens rea and overt acts, reflecting a preventive approach in criminal justice.
Case law demonstrates attempted crimes are taken seriously, ensuring accountability even when crimes fail due to circumstances beyond the offender’s control.
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