Duress and Coercion as Defenses in Japanese Criminal Law: When Can Being Forced to Commit a Crime Excuse Liability?

The scenario is a classic legal and ethical dilemma: what happens when an individual is forced by another, under severe threat or overwhelming pressure, to commit an act that would otherwise be a crime? Does the law excuse conduct performed under such duress or coercion? While the Japanese Penal Code does not feature a single, explicitly named statutory defense of "duress" or "coercion" in the same way some common law jurisdictions do, its legal framework provides avenues through which such dire circumstances can be considered, potentially leading to an exclusion of criminal liability. These avenues primarily involve the doctrines of Emergency Necessity (緊急避難, Kinkyū Hinan) and the fundamental culpability principle of Lack of Expectation of Lawful Conduct (期待可能性の欠如, Kitai Kanōsei no Ketsujo).

1. The Absence of a Specific "Duress" Statute

Unlike systems that might have a dedicated "Defense of Duress" statute outlining specific elements (e.g., threat of imminent death or serious bodily harm, no reasonable opportunity to escape), Japanese criminal law integrates the concept of being forced to act into its existing general defenses and principles of culpability. This means that an act performed under coercion is not automatically excused; rather, it must be analyzed to see if it meets the stringent criteria of either Emergency Necessity or if the circumstances were so extreme that culpability itself is negated.

2. Emergency Necessity (Kinkyū Hinan - Article 37) as a Potential Defense

Often, the most direct legal framework for analyzing acts committed under duress is Emergency Necessity (Article 37 of the Penal Code). This doctrine justifies an otherwise unlawful act if it was performed to avert a present danger to a legally protected interest, provided certain conditions are met.

A. How Coercion Creates a "Present Danger"

In a duress scenario, the "present danger" (genzai no kinan) required for necessity is the harm threatened by the coercer. This threatened harm could be to the life, body, liberty, or property of the person being coerced, or to those of a third party (often a family member). For example, if Person B threatens to kill Person A's child unless A participates in a robbery, the threat to the child's life constitutes the "present danger" for Person A.

B. The Coerced Act as an "Evasive Act"

The crime committed by the coerced individual (Person A in the example above, e.g., the robbery) is then viewed as the "evasive act" (hinan kōi) undertaken to avoid the harm threatened by the coercer (Person B).

C. Applying the Conditions of Necessity to Coerced Acts

For the defense of necessity to succeed in a duress situation, all its standard conditions must be satisfied:

1. Imminence and Seriousness of the Threatened Harm: The threat from the coercer must be immediate, serious, and ongoing. A vague or future threat would likely not suffice. The threat must typically be to fundamental interests like life or serious bodily harm for the balance of harms (see below) to potentially favor the coerced act.
2. Subsidiarity (No Reasonable Alternative / 補充性の要件, Hojūsei no Yōken): This is often the most difficult hurdle. The coerced person must have had no other reasonable and safe way to escape the coercer's threat or to prevent the threatened harm without committing the crime. If, for example, seeking police protection was a viable and reasonably safe alternative that would have neutralized the threat, the necessity defense for committing the coerced crime would likely fail. This is a highly fact-specific inquiry.
3. Balance of Harms (害の均衡, Gai no Kinkō): The harm caused by the coerced criminal act must not exceed the harm that was threatened by the coercer and sought to be avoided by the coerced act. This is a critical and often problematic element.
   • If the coerced act involves causing minor property damage to avoid serious personal injury threatened by the coercer, the balance might be met.
   • However, if the coercer demands that the coerced person kill an innocent third party to save their own life or the life of a family member, the "harm caused" (death of an innocent) is typically considered at least equivalent to, if not greater than, the "harm avoided" (death of oneself or a family member). In such life-for-life scenarios, Japanese law, like many systems, is extremely reluctant to justify the killing of an innocent. While Article 37 technically allows for justification if harms are equivalent, the societal and ethical implications in life-for-life duress make this defense exceptionally difficult to sustain.
   • A Tokyo District Court ruling on June 26, 1996, considered the applicability of necessity in a case where a defendant was allegedly forced to participate in a bank robbery because their child had been kidnapped and was under threat. The court engaged with the necessity argument, indicating its potential relevance, though the outcome would depend on the specific facts meeting all criteria.

3. Lack of Expectation of Lawful Conduct (期待可能性の欠如, Kitai Kanōsei no Ketsujo) – When Culpability is Negated

Beyond the specific requirements of emergency necessity, a more general principle of culpability can come into play: the Lack of Expectation of Lawful Conduct (Kitai Kanōsei no Ketsujo). This principle holds that an individual cannot be held criminally culpable if, due to extreme circumstances, the law could not reasonably have expected them to act lawfully (i.e., to resist the pressure and refrain from committing the offense).

A. The General Principle of Culpability

As a cornerstone of Japanese criminal law, punishment requires blameworthiness. If an individual's freedom of will is so constrained by external pressures that they effectively have no meaningful choice but to commit the prohibited act, blaming them for that act becomes unjust.

B. Overwhelming Pressure and the "Super-Statutory" Ground for Excluding Culpability

Kitai Kanōsei no Ketsujo is often described as a "super-statutory" ground for excluding culpability because, while not explicitly detailed as a defense for specific situations like duress in a single article, it is derived from the fundamental nature of culpability itself. It applies in situations of such overwhelming pressure or dire circumstances that an ordinary person, in the actor's position and possessing their capacities, would find it practically impossible to conform their conduct to the law.

• The coercion or threat would need to be extreme, directly impacting the actor's ability to make a free and reasoned choice.
• This defense sets a very high threshold and is reserved for truly exceptional circumstances where the actor's autonomy is almost entirely vitiated. The PDF refers to a Fukuoka High Court ruling of June 14, 1955, as an example where this principle was considered.

C. Relationship with Emergency Necessity

The doctrine of Kitai Kanōsei no Ketsujo often overlaps with emergency necessity, as situations of duress can be analyzed under both. However, they have different focuses:

• Emergency Necessity is primarily an objective test focusing on the presence of danger, the availability of alternatives, and the balance of harms. If these objective criteria are not met (e.g., the harm caused by the coerced act slightly exceeded the harm avoided), necessity is denied.
• Lack of Expectation of Lawful Conduct focuses more on the subjective pressure on the actor's will and whether, given that pressure, they could fairly be expected to have acted otherwise. It's conceivable that an act might fail the strict balance of harms test for necessity, yet the actor might still be excused due to an overwhelming lack of kitai kanōsei if the pressure was so extreme that resistance was humanly impossible or would entail an intolerable sacrifice.

4. Duress and Coercion in the Corporate/Business Setting

Applying these principles to actions taken within a corporate or business hierarchy, or due to inter-company pressure, presents significant challenges.

A. Superior-Subordinate Dynamics

An employee might claim they were coerced by a superior into committing an illegal act (e.g., falsifying financial records, participating in a price-fixing agreement, violating environmental regulations) under threat of dismissal, severe career detriment, or intense workplace harassment that amounts to psychological coercion.

• Legal Assessment: Japanese law generally expects employees to refuse to obey unlawful orders. The defense of necessity or lack of kitai kanōsei would be very difficult to establish unless the threat was exceptionally severe, direct, and imminent, and there were genuinely no safe avenues for refusal or reporting (e.g., through internal whistleblower channels or to external authorities).
• Courts would scrutinize whether the employee could have, for example, resigned, reported the matter internally or externally, or sought legal protection. The threat of job loss alone, while serious, is typically not considered sufficient to meet the high threshold for these criminal defenses, especially for white-collar crimes. However, truly extreme and credible threats to personal safety or liberty emanating from a superior could potentially be considered. The power imbalance and the nature of the corporate hierarchy might be relevant factors in assessing the subjective pressure on the employee.

B. Economic Duress Between Companies

A smaller company might argue it was forced into illegal conduct (e.g., joining an anti-competitive cartel, breaching environmental laws under pressure from a dominant client) by a larger, dominant business partner threatening to terminate crucial contracts, thereby causing financial ruin.

• Criminal Defense Viability: Claims of economic duress as a defense to criminal charges are rarely successful in most legal systems, and Japan is unlikely to be an exception. The pressure usually needs to involve threats of physical harm or direct unlawful action for criminal defenses like necessity to be plausible.
• While extreme economic coercion might be relevant in civil disputes or for mitigating administrative penalties, it's generally not seen as negating criminal culpability for offenses that harm public interests (like competition law) or third parties. The "balance of harms" for necessity would be very difficult to meet if the coerced crime causes significant public or third-party harm merely to save a business interest from economic loss. Furthermore, avenues like reporting to fair trade commissions or seeking civil injunctions would likely be considered available alternatives.

5. Distinguishing from Other Concepts

It's important to distinguish the coerced person's potential defense from related legal concepts:

• The Coercer's Liability: The person exerting duress or coercion is themselves committing a crime, such as Coercion (強要罪, Kyōyō-zai - Article 223 of the Penal Code) or Extortion (恐喝罪, Kyōkatsu-zai - Article 249), for which the coerced individual is the victim.
• Indirect Perpetration (Kansetsu Seihan): If the coercion is so extreme that the coerced person's will is entirely overridden, reducing them to a mere instrument, the coercer may be liable as an indirect perpetrator of the crime committed by the coerced person. In such a scenario, the coerced person would likely be found to lack the necessary culpability (intent or voluntariness) for the crime they physically performed. The Supreme Court ruling of January 20, 2004, where a victim was psychologically manipulated into a state of having no other choice but to perform a self-destructive act, leading to the manipulator's conviction as an indirect perpetrator, touches upon this complete overriding of will.

Conclusion

While Japan's Penal Code does not contain a single, consolidated "duress" or "coercion" defense, the legal system offers avenues for addressing situations where an individual is forced to commit a crime. Emergency Necessity (Article 37) provides a framework if its strict conditions—particularly the absence of reasonable alternatives and a favorable balance of harms—are met. Beyond this, the fundamental principle of culpability means that if the coercive pressure was so overwhelming that the law could not reasonably expect lawful conduct (Kitai Kanōsei no Ketsujo) from the actor, criminal responsibility may be negated.

However, the threshold for successfully invoking these defenses in cases of duress or coercion is exceptionally high. Courts will rigorously examine the imminence and severity of the threat, the availability of lawful alternatives (including seeking help from authorities), and the proportionality of the act committed in response to the threat. In business settings, while such defenses are theoretically conceivable, especially for employees subjected to extreme and direct pressure, they are applied very restrictively. The expectation is generally that individuals and corporations will resist illegal demands and utilize available legal and reporting channels, rather than succumbing to pressure to commit offenses.