Attempted Crimes in Japan: How Close Must One Come to Completing a Crime to be Held Liable?

Criminal law does not only punish completed crimes; it also addresses situations where an individual tries to commit an offense but ultimately fails to achieve its full consummation. This is the realm of attempted crimes (未遂罪, misuizai). Japanese criminal law, under Article 43 of the Penal Code, defines an attempt as "commencing the commission of a crime but not consummating it." Understanding when an act crosses the threshold from mere preparation into a punishable attempt is crucial, as are the distinct legal treatments for attempts that are inherently impossible to succeed and those that are voluntarily abandoned.

The decision to punish attempts reflects a policy of protecting legal interests (hōeki) by allowing intervention before a crime is fully realized. However, this must be balanced against the principle of individual liberty, ensuring that not every preliminary thought or preparatory step is criminalized. Article 44 of the Penal Code specifies that attempts are punished only when explicitly provided for in the articles concerning each specific crime; it's not a universal rule for all offenses.

1. Crossing the Rubicon: "Commencement of Commission" (実行の着手, Jikkō no Chakushu)

The pivotal concept for determining when an attempt becomes punishable is the "commencement of commission" (実行の着手, jikkō no chakushu). This is the legally defined moment when an actor's conduct moves beyond mere preparation (予備, yobi)—which is only punishable for very serious crimes like homicide or robbery—and enters the phase of actual execution of the offense.

Evolution of the Standard

• Subjective Theories (主観説, shukansetsu): Early theories focused on the actor's subjective intent, suggesting that commencement occurred when the actor's criminal will became manifest. However, these theories are largely rejected today due to their vagueness and potential for over-criminalization based on thoughts rather than concrete actions.
• Objective Theories (客観説, kyakkansetsu): The prevailing approach relies on objective criteria.
  • Formal Objective Theory (形式的客観説, keishiki-teki kyakkansetsu): This theory posits that commencement begins only when the actor starts to perform an act that is part of the conduct explicitly described in the statutory definition (kōsei yōken) of the consummated crime. For example, for theft, this would mean the actual act of taking the property. This theory is often criticized for setting the threshold too late, potentially failing to capture dangerous conduct that immediately precedes the final criminal act.
  • Substantive Objective Theory (実質的客観説, jisshitsu-teki kyakkansetsu): This is the dominant view in Japanese courts and among many scholars. It holds that commencement occurs when the actor begins an act that creates a direct and imminent danger of the criminal result occurring or the protected legal interest being infringed. The act must be closely connected to the defined elements of the offense and carry a tangible risk of consummation.

Judicial Application of the Substantive Objective Theory

Japanese courts have applied this substantive standard in various contexts:

• Theft by entering a residence: While mere unlawful entry is trespass, the commencement of attempted theft occurs when the intruder, after entering, takes further steps that directly threaten the property, such as approaching a cabinet with the intent to search for valuables (Daishin-in (Great Court of Cassation) ruling, October 19, 1934).
• Rape: The commencement of attempted rape is not limited to the initiation of sexual intercourse itself. It can begin earlier, for example, with acts of violence or intimidation specifically aimed at overpowering the victim to facilitate the rape (Supreme Court ruling, July 28, 1970).
• Homicide: In a case where the plan was to render the victim unconscious with chloroform and then cause death by other means, the Supreme Court (ruling of March 22, 2004) held that the commencement of attempted homicide occurred when the defendant began administering the chloroform, as this was an indispensable part of the overall plan and created an objective danger of death.

Crimes Committed at a Distance (離隔犯, Rikaku-han)

For crimes where there is a spatial or temporal gap between the actor's conduct and the result (e.g., sending poison by mail), determining the point of commencement is more complex.

• Dispatch Theory (Hassōji-setsu): Argues that commencement occurs when the actor sets their plan in motion (e.g., mailing the poisoned item).
• Arrival Theory (Tōtatsuji-setsu): Suggests commencement occurs only when the dangerous means reaches the victim or their sphere of control, creating an immediate and concrete danger. Japanese judicial precedent has leaned towards the Arrival Theory (e.g., Daishin-in ruling, November 16, 1918), as it aligns more closely with the idea that an attempt requires the creation of a tangible, present danger to the legal interest.

2. The "Impossible" Attempt (不能犯, Funō-han) – When a Crime Can't Succeed

An impossible attempt (不能犯, funō-han, also called 不能未遂, funō misui) occurs when an actor, with criminal intent, commences an act that they believe will lead to a consummated crime, but, due to the means used or the nature of the object targeted, the crime cannot possibly be completed. Such attempts are generally held to be unpunishable in Japan because they pose no actual danger to the protected legal interest.

The crucial question is how to distinguish an unpunishable impossible attempt from a punishable (albeit failed) attempt. This hinges on the assessment of "danger."

Theories for Assessing Danger in Impossible Attempts:

• Subjective Theories (e.g., Impression Theory): If the act appeared dangerous to an ordinary person based on the facts known (or believed by the actor) at the time, it would be a punishable attempt, even if objectively impossible. This view focuses on the actor's dangerous disposition.
• Objective Theories: These place more emphasis on the objective possibility of the result.
  • Concrete Danger Theory (具体的危険説, Gutaiteki Kikensetsu): This has been a prominent academic view. Danger is judged ex ante based on the facts an ordinary person could have known at the time of the act, supplemented by any special knowledge the actor possessed. If, from this perspective, the act created a concrete danger of consummation, it is a punishable attempt. An act is an impossible attempt only if an ordinary person, knowing all facts available at the time, would have realized its futility.
  • Objective Danger Theory (客観的危険説, Kyakkanteki Kikensetsu): This approach, which seems to align more closely with some modern judicial reasoning, may consider certain ex-post information to determine if there was ever any real objective danger. One variant involves a hypothetical judgment: was there ever a realistic possibility that the conditions necessary for consummation could have been met?

Judicial Practice on Impossible Attempts:

Japanese courts have produced a nuanced body of case law:

• Impossibility of Means (方法の不能, Hōhō no Funō):
  • Found Unpunishable (Impossible Attempt):
    • Administering sulfur powder with intent to kill (Daishin-in, September 10, 1917 – deemed "absolutely impossible" as a method of poisoning).
    • Using a hand grenade that had deteriorated to the point of being non-functional (Tokyo High Court, June 16, 1954 – "no risk of causing a dangerous state").
    • Attempting to manufacture amphetamines using a substance that was not the correct raw material (Tokyo High Court, April 24, 1962 – "result absolutely impossible").
  • Found Punishable (Attempt):
    • Injecting an insufficient amount of air into a vein with intent to kill (Supreme Court, March 23, 1962 – "not absolutely impossible" to cause death depending on the victim's specific physical condition and other circumstances).
    • Attempting to manufacture amphetamines with scientifically sound methods but using an insufficient quantity of a necessary catalyst (Supreme Court, October 18, 1960 – consummation was possible if more catalyst had been used).
    • Pulling the trigger of an unloaded firearm taken from a police officer, believing it to be loaded (Fukuoka High Court, November 10, 1953 – attempt upheld because it is "generally recognized in society that firearms carried by police officers should be loaded," thus creating a perception of danger). This case highlights a blend of objective factors and social perception.
• Impossibility of Object (客体の不能, Kyakutai no Funō):
  • Generally, these are treated as punishable attempts. The reasoning is that the actor's intent is clear, and the act itself is of a type that would be dangerous if the object were as the actor believed it to be.
  • Attempting to pick an empty pocket with intent to steal (attempted robbery, Daishin-in, July 24, 1914 – "passersby ordinarily can be expected to carry valuables," so the act itself is dangerous in type).
  • Stabbing a person already deceased, believing them to be alive, with intent to kill (Hiroshima High Court, July 10, 1961 – attempted homicide upheld. The court considered that even experts might differ on the exact time of death, and an ordinary person at the scene would perceive a danger of consummating the homicide. The danger was assessed based on the appearances at the time).

Courts seem to apply a more scientifically objective standard for impossibility of means, but when it comes to impossibility of object, or situations where the means could be effective under slightly different (and not entirely unforeseeable) circumstances, they often lean towards finding a punishable attempt, sometimes invoking the "ordinary person's sense of danger."

3. The "Golden Bridge": Voluntary Discontinuation (中止犯, Chūshi-han)

Article 43, proviso, of the Penal Code provides a special rule for voluntary discontinuation/abandonment (中止犯, chūshi-han, also called 中止未遂, chūshi misui): "When a person who has commenced the commission of a crime discontinues the act of their own will or prevents its consummation, the punishment shall be reduced or remitted." This mandatory reduction or remission (which can mean no punishment at all) distinguishes it from ordinary attempts where reduction is merely discretionary.

Rationale for Special Treatment:

The favorable treatment for chūshi-han is generally understood to be based on:

• Policy Considerations (政策説, Seisakusetsu): To provide a "golden bridge" or incentive for offenders who have already embarked on a criminal course of action to desist and prevent harm.
• Legal Theories (法律説, Hōritsu Setsu):
  • Reduced Illegality (違法減少説, Ihō Genshō Setsu): The offender, by their own actions, actively negates or reduces the danger they created.
  • Reduced Culpability (責任減少説, Sekinin Genshō Setsu): The offender's change of heart and voluntary desistance demonstrate a less hardened criminal disposition or reduced blameworthiness.
    Many commentators see it as a policy-driven rule that operates through, and is justified by, factors relating to reduced illegality and/or culpability.

Requirements for Voluntary Discontinuation:

1. "Discontinues the crime" (犯罪を中止した, hanzai o chūshi shita): This involves both objective and subjective elements.
   • Objective Element: Elimination of Danger: The offender must, through their actions, eliminate the concrete danger of the crime's consummation that arose from the commencement of commission.
     • Discontinuation during ongoing acts (Chakushu Chūshi): If the danger of consummation depends on the offender continuing their criminal acts (e.g., repeatedly striking a victim), simply ceasing these further acts can suffice, provided no independent causal chain towards consummation has already been irreversibly set in motion. This applies even if the initial acts failed and a further attempt is possible.
     • Discontinuation after an act creating independent danger (Jikkō Chūshi): If the offender's initial act has already created a situation where the crime might be consummated without further action from them (e.g., a victim is seriously wounded and will die if left untreated; a timed incendiary device has been set), mere passive cessation is not enough. The offender must take active preventative measures to neutralize the danger they created (e.g., taking the wounded victim to a hospital, disarming the device). If the offender cannot prevent consummation alone, Japanese case law suggests that "sincere efforts" (shinshi na doryoku) to secure prevention (e.g., promptly calling for effective aid) are required (Daishin-in ruling, June 25, 1937).
   • Causal Link between Discontinuation and Non-Consummation: There is debate whether the offender's discontinuing act must have been the decisive cause of non-consummation. Some argue that if the crime would have failed anyway for external reasons, there's no merit in rewarding the offender. However, the more widely accepted view is that genuine and sincere efforts to prevent consummation are sufficient, even if, unbeknownst to the offender, the crime might have been impossible or thwarted by other means anyway. The focus is on the offender's conduct and manifested change of heart.
   • Subjective Element: Awareness of Discontinuation: The offender must be aware that they are discontinuing the crime and, for jikkō chūshi, that their preventative actions are aimed at averting consummation. Accidental or unknowing prevention of the result after deciding to stop for other reasons does not qualify.
2. "Of Their Own Will" (自己の意思により, Jiko no Ishi ni Yori) – Voluntariness (任意性, Nin'isei):
   This is the critical element distinguishing punishable failed attempts from chūshi-han. The discontinuation must be voluntary, not forced by external circumstances that make continuation of the crime impossible or excessively risky.
   • Frank's Formula (often cited in discussions): Did the offender abandon the crime because "I do not want to proceed" (voluntary), or because "I cannot proceed" (involuntary)?
   • Judicial Interpretation: Courts assess voluntariness by considering whether the offender desisted due to internal motivations (remorse, pity, fear of ultimate consequences unrelated to immediate detection) or due to external obstacles.
     • Involuntary (No Chūshi-han): Abandonment due to unexpected resistance from the victim, the arrival of police, the malfunctioning of a tool, extreme fear of immediate discovery or apprehension (e.g., Daishin-in, September 21, 1937; Supreme Court, September 10, 1957). If external factors effectively compel desistance, it is not "of their own will."
     • Voluntary (Chūshi-han Possible): Abandonment stemming from genuine remorse, empathy for the victim, or a free decision to not go through with the crime, even if some external factor might have played a role in triggering this internal reflection, as long as that external factor did not make consummation practically impossible or overwhelmingly risky (e.g., Urawa District Court, February 27, 1992 – desisting due to victim's pleas when crime was still physically completable).

Discontinuation of Preparatory Acts (Yobi-zai to Chūshi)

The special mitigation for chūshi-han in Article 43 applies to "attempts" (i.e., after jikkō no chakushu). Whether its spirit can be extended to the voluntary abandonment of crimes of preparation (予備罪, yobi-zai), which are punished independently for some serious offenses, is debated. While academics often support such an extension for policy reasons (particularly for remission of punishment if one desists from preparation), the Supreme Court has denied the direct applicability of Article 43 to preparatory crimes (ruling of January 20, 1954). Some preparatory statutes, however, have their own provisions for reduced punishment upon voluntary surrender or desistance.

4. Attempted Crimes in a Business Context

The principles of attempt, impossibility, and voluntary discontinuation can also be relevant in the context of corporate or white-collar crime:

• Commencement of Commission: Determining the jikkō no chakushu for offenses like corporate fraud, bribery, or insider trading can be complex.
  • Is attempted fraud commenced with the first misleading statement to a potential victim, or only when a comprehensive deceptive scheme is put into action towards inducing a specific transaction?
  • Is attempted bribery commenced when a preliminary discussion about a corrupt payment occurs, or only when a concrete offer is made?
  • For insider trading, does it commence when a decision to trade is made based on inside information, or only when a trade order is actually placed?
    The "direct and imminent danger" test would need to be applied to the specific facts and the nature of the corporate wrongdoing.
• Impossible Attempts:
  • A company might attempt to bribe an official who, unbeknownst to them, has no actual power to grant the desired favor (impossibility of achieving the ultimate illicit goal through that specific means).
  • Attempting industrial espionage by trying to hack into a system that has unexpectedly robust (but not theoretically impenetrable) security could be a punishable attempt if the methods used were generally capable of posing a threat.
• Voluntary Discontinuation:
  • If a corporation, through its decision-making bodies (e.g., board of directors), initiates a course of conduct that would constitute a crime (e.g., a plan for anti-competitive price-fixing) but then, due to an internal ethical review, a change in management, or legal advice, decides to abandon the plan and takes active steps to prevent its consummation and any resulting harm, could the corporation claim chūshi-han? This is a theoretically complex issue. While a corporation acts through individuals, if the corporate entity itself can be shown to have genuinely and voluntarily reversed its criminal course of action through its formal decision-making processes and preventative actions, the policy arguments for mitigation might apply. However, proving true "voluntariness" at the corporate level, distinct from mere fear of detection, would be challenging.

Conclusion

Japanese criminal law provides a detailed framework for addressing attempted crimes, balancing the need to intervene against dangerous conduct with safeguards for individual liberty. The "commencement of commission" marks the crucial threshold for liability, determined by whether an act poses a direct and imminent danger of consummation. Attempts doomed to fail from the outset due to inherent impossibility are generally not punished if they pose no real danger, though the line is drawn based on a nuanced assessment of "concrete danger." Significantly, the law offers a strong incentive for offenders to desist through the doctrine of voluntary discontinuation (chūshi-han), which mandates a reduction or remission of punishment for those who, of their own will, abandon their criminal enterprise or prevent its completion. These principles, while often discussed in the context of individual street crimes, have analogous, albeit complex, applications in the realm of corporate and white-collar offenses.