Japan

Characteristics of Japanese Criminal Law

The most important source of criminal law in Japan is the Penal Code, which went into force in 1908 and was revised, to some extent—especially by the adoption of a new constitution in 1946—just after World War II. Japanese criminal law bears several distinct characteristics as compared to American criminal law. First, in the Meiji era (1868–1912), Japanese criminal law was strongly influenced by the German legal tradition, characterized by an emphasis on the development of law in a codified form. In Japan, all crimes appear either in the Penal Code or in a supplementary statute; accordingly, there are no common law (judge-made) crimes that have not been codified.

Second, the definitions of various crimes in the Penal Code are written in fairly general terms, leading to a more extensive use of judicial interpretation. The court's discretion in imposing a sentence is quite broad (Terrill 1997: 266–267). For instance, the crime of homicide is defined simply as “a person who kills another” (Article 199). There is no distinction for degree of intent or malice, nor is there any differentiation between first-degree and second-degree murder and manslaughter. The penalties for homicide include death or choeki (“imprisonment with forced labor”) for life or for no less than three years. This further enhances the discretionary authority of the judiciary.

Third, there is no formal distinction between felony and misdemeanor regarding the gravity of the imposed sentence. Instead, the catalog of Penal Code offenses has been systematized according to the kind of juridical interests protected by the code. The second book of the Penal Code, entitled “Crimes,” consists of forty chapters. Each chapter establishes its own specific type of crime and corresponding criminal sanctions. “Crimes” deals first with crimes against the state (Chapters 2 to 7) then with crimes against the public (Chapters 8 to 25), and lastly with crimes against the individual (Chapters 26 to 40).

Finally, there is a distinction between the policies of criminalization and decriminalization of victimless crimes or public order crimes in Japan and the United States. In Japan, there are no penalties against homosexuality, sodomy, and incest, but the legal control of pornography is very strict. In contrast, in the United States, control of pornography is not extremely strict, but [Page 946]some states have laws against private homosexuality between consenting adults. Also, incest is prohibited by some states, even though the definition of incest differs widely.

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