Having Second Thoughts: What is "Chuushi Misui" (Voluntary Abandonment) and How Can It Mitigate or Negate Attempt Liability in Japan?
In the landscape of criminal law, an attempt to commit a crime (未遂 - misui) is generally punishable, reflecting society's interest in preventing harm even before it fully materializes. However, Japanese law, like many other legal systems, recognizes a special category of attempt known as "voluntary abandonment" or "renunciation," termed 中止未遂 (chūshi misui). This doctrine provides a significant legal incentive for individuals who have already embarked on a criminal course to have second thoughts and desist from completing their offense or to actively prevent its harmful consequences.
A finding of chūshi misui can lead to a mandatory reduction in punishment or even a complete remission, effectively altering the legal outcome significantly compared to an ordinary criminal attempt. This article delves into the definition, essential requirements, and legal effects of chūshi misui in Japan, with a particular focus on the often complex and heavily litigated element of "voluntariness," illustrated by a key High Court decision involving a violent crime interrupted by the offender's change of heart.
The Legal Basis and Rationale for Chūshi Misui
The foundation for chūshi misui is found in Article 43 of the Japanese Penal Code. The relevant part of the article states that punishment for a person who has commenced a crime "shall be reduced or remitted" if that person "voluntarily abandons perpetration of a crime or voluntarily prevents the consequence thereof."
(「自ラ行為ヲ中止シタルトキ又ハ結果ノ発生ヲ防止シタルトキハ其刑ヲ減軽シ又ハ免除ス」 - Mizukara kōi o chūshi shitaru toki matawa kekka no hassei o bōshi shitaru toki wa sono kei o genkei shi matawa menjo suru).
Key Distinctions and Legal Effects
- Distinction from Ordinary Attempt (障害未遂 - shōgai misui): In an ordinary criminal attempt, often termed an "obstacle attempt" (shōgai misui), the failure to complete the crime is due to external factors beyond the offender's control—such as the intervention of police, unexpected resistance from a victim, or the failure of a tool or plan. In contrast, chūshi misui is characterized by the non-completion of the crime (or the active prevention of its harmful result) stemming from the offender's own volitional decision.
- Mandatory Mitigation or Remission: This is a crucial difference. For ordinary attempts, Article 44 of the Penal Code allows for a discretionary reduction in punishment. However, for a successfully established chūshi misui, Article 43 mandates that the punishment shall be reduced or remitted. "Remitted" (免除 - menjo) means that no punishment is imposed. While the legal finding is still that of a (voluntarily abandoned) criminal attempt, the practical outcome of remission is often akin to an acquittal in terms of punishment. This provides a powerful legal incentive for offenders to reconsider their actions.
Rationale Behind the Chūshi Misui Doctrine
The legal recognition and favorable treatment of chūshi misui are generally understood to be based on two primary rationales:
- The "Golden Bridge" Policy (金の橋政策 - kin no hashi seisaku): This is a crime policy consideration. The law aims to provide offenders with a "golden bridge" – an attractive pathway to retreat from their criminal course. By offering the prospect of significantly reduced or no punishment, the law encourages individuals who have already taken steps towards committing a crime to abandon their plans or to actively work to prevent the harm they have set in motion. This ultimately serves the societal interest of preventing crimes from being completed and harm from occurring.
- Reduced Culpability or Dangerousness: From a culpability perspective, an offender who voluntarily desists from completing a crime, or who actively works to undo the harm they have initiated, is generally seen as less culpable or less dangerous than an offender who persists in their criminal endeavor until they are thwarted by external forces or successfully complete the crime. Their criminal will is perceived as less firm or as having been overcome by internal controls or second thoughts.
Essential Requirements for Chūshi Misui
For an offender's actions to qualify as chūshi misui and thus benefit from the mandatory mitigation or remission of punishment, several key requirements must be met:
- Commencement of the Crime (実行の着手 - jikkō no chakushu): The offender must have already begun the "execution" of the crime. This means their actions must have progressed beyond mere preparation (予備 - yobi) and entered the stage where they have started to carry out the criminal act itself, creating an immediate and direct danger of the crime's completion. If the desistance occurs only at the preparation stage, it's typically not a chūshi misui but simply non-commission of the crime.
- Non-Completion of the Crime OR Active Prevention of the Result: This element has two alternative prongs, depending on the nature of the attempt:
- Abandonment of Perpetration (行為の中止 - kōi no chūshi): If the crime is one where the offender's actions are ongoing and the criminal result has not yet occurred (e.g., in the middle of an assault, before fatal injury is inflicted), the offender must voluntarily cease their criminal conduct before all acts necessary for the completion of the crime are performed.
- Voluntary Prevention of the Result (結果発生の防止 - kekka hassei no bōshi): This applies to situations often termed "completed attempts" where the offender has already performed all the physical acts they intended to do, and the criminal result is expected to follow automatically without further action on their part (e.g., they have lit the fuse of a bomb, administered a slow-acting poison, or pushed someone into a river). In such cases, merely stopping further personal action is insufficient. The offender must take active and effective voluntary steps to prevent the criminal result from actually materializing.
- Voluntariness (任意性 - nin'isei) of the Abandonment or Prevention: This is often the most complex and frequently litigated requirement. The decision to abandon the criminal act or to prevent its harmful consequence must stem from the offender's own free will. It must not be primarily compelled by external circumstances that suddenly make the completion of the crime impossible, significantly more difficult, or substantially riskier than originally anticipated.
The Crucial Element of "Voluntariness" (Nin'isei)
The determination of whether an abandonment was "voluntary" requires a careful distinction between motivations arising from the offender's internal change of heart and those primarily driven by external impediments or pressures.
- Voluntary (Internal) Abandonment: This occurs when the offender desists due to internal factors or motivations, such as:
- Genuine remorse, shame, or guilt.
- Pity or compassion for the intended victim.
- A sudden moral or religious awakening.
- Fear of divine retribution or an overwhelming sense of wrongdoing.
- Even reasons that are not purely ethical, such as a personal reassessment that the crime is "not worth it," or a loss of interest, might be considered voluntary if not directly forced by new external obstacles.
- Involuntary (External) Abandonment: This occurs when the offender stops because of external factors that effectively force their hand, such as:
- The unexpected appearance of police officers or other witnesses.
- The victim offering stronger-than-anticipated resistance that makes overpowering them unlikely.
- The failure of a necessary tool or weapon (e.g., a gun misfiring, a lock-picking tool breaking).
- A sudden realization that the risk of apprehension has dramatically increased due to unforeseen external developments (e.g., an alarm sounding, the target location becoming unexpectedly secured).
- The discovery that the crime is factually impossible to complete for reasons unknown to them at the outset (though this can also shade into funōhan – impossible attempt – issues).
"Frank's Formula" and Judicial Assessment
A classic (though not universally definitive) guideline sometimes referenced in Japanese legal discussions to distinguish voluntary from involuntary abandonment is "Frank's Formula," derived from German legal theory:
- If the offender thinks, "I will not complete it, even though I can" (できるのに、やらない - dekiru noni, yaranai), the abandonment is generally considered voluntary.
- If the offender thinks, "I cannot complete it, even though I want to" (やりたいのに、できない - yaritai noni, dekinai), the abandonment is generally considered involuntary.
While helpful as a conceptual tool, Japanese courts do not apply this formula mechanically. Instead, they undertake a holistic examination of all the circumstances that led to the cessation of the criminal act. This includes scrutinizing the defendant's statements about their reasons for stopping (if any), objective factors that might have influenced their decision (such as the victim's reactions, sounds, or the appearance of others), and the precise stage the crime had reached when the abandonment occurred.
The Role of "Ethical Motivation" (Rinriteki Dōki)
There has been some evolution in judicial thinking regarding the necessity of "ethical motives" like remorse or pity for voluntariness. While older Supreme Court cases appeared to lean towards a more objective standard, focusing on whether external circumstances would typically compel abandonment, some later lower court decisions seemed to place greater emphasis on whether the abandonment was driven by such ethical considerations.
However, the modern trend, exemplified by the key High Court case discussed below, suggests a more nuanced approach. While purely ethical motives certainly constitute strong evidence of voluntariness, their absence does not automatically preclude a finding of chūshi misui. If the offender, despite the absence of insurmountable external obstacles, makes a self-initiated decision to stop, even for reasons that are not purely altruistic (e.g., a sudden fear of the ultimate consequences for themselves, not just fear of immediate capture), it may still be deemed voluntary. The core inquiry is whether the defendant could have continued with a reasonable prospect of success but chose not to, for reasons genuinely their own and not primarily dictated by new, prohibitive external factors.
Key Case: The Stabbing and Subsequent Hospital Transport (Sapporo High Court Decision, May 10, 2001)
The Sapporo High Court decision of May 10, 2001 (Sapporo Kōtō Saibansho Hanketsu, Heisei 13-nen 5-gatsu 10-nichi, published in Hanrei Taimuzu 1089-gō, page 298), provides an insightful look into the judicial assessment of voluntariness in a highly charged situation.
Factual Background
The defendant was involved in an extramarital affair with the victim. Upon learning from the victim that she had also been intimate with another man, the defendant was thrown into a state of shock and despair, contemplating suicide or a murder-suicide. He had prepared a kitchen knife.
Late one night, while in his car with the victim, a heated argument ensued. The victim declared she wanted to end their association and attempted to leave the vehicle. At this point, the defendant, overcome by feelings of hopelessness, decided to kill her and then himself. He stabbed her twice in the left chest with the knife.
The Critical Turning Point: Immediately following the stabbings, the victim, despite being seriously injured, showed remarkable presence of mind (機転を利かせて - kiten o kikasete – "acting cleverly/resourcefully"). She began to plead repeatedly with the defendant, stating that she would comply with his wishes, that she had truly loved him, and desperately begged him to take her to a hospital.
The defendant's resolve began to waver. He became agitated and uncertain. He started driving, internally conflicted about whether to proceed with his original plan of going to his home to commit a murder-suicide or to heed her pleas and seek medical help. This period of indecision continued as he drove.
He eventually reached a critical intersection that represented a literal "fork in the road": one direction led to his home, the other towards a hospital. At this juncture, he made the definitive decision to believe the victim's words and try to save her. He drove her to the hospital. Medical evidence established that the stab wounds were life-threatening if left untreated, but due to the timely medical intervention she received after being brought to the hospital by the defendant, she survived.
The Legal Issue and the High Court's Reasoning
The central legal issue was whether the defendant's act of taking the seriously injured victim to the hospital constituted a "voluntary" prevention of the result (her death), thereby qualifying his actions as chūshi misui for the crime of attempted homicide. The prosecution might have argued that his change of heart was primarily compelled by the victim's desperate pleas and the unfolding emergency, thus rendering his actions involuntary.
The Sapporo High Court, however, found that chūshi misui was established. Its reasoning was as follows:
- Victim's Pleas as a Catalyst, Not the Sole Determinant: The Court acknowledged that the victim's resourceful and desperate pleas were undoubtedly a significant catalyst (契機 - keiki) that shook the defendant's initial murderous resolve and triggered his internal conflict and indecision.
- Evidence of an Internal Struggle and Deliberate Decision: Crucially, the High Court emphasized that the defendant did not immediately abandon his criminal intent or decide to help her merely upon hearing her initial pleas. Instead, he drove for some time in an undecided and agitated state ("気持ちの定まらないまま" - kimochi no sadamaranai mama – "with his feelings unsettled"). The final, definitive decision to seek medical help for her was made by him when he reached the physical fork in the road. This period of wavering followed by a clear choice indicated an internal deliberative process.
- Shift in Primary Motivation: The Court inferred that while the victim's words initially "triggered" his reconsideration, his ultimate decision to take her to the hospital was also influenced by developing feelings of "pity" or "compassion" (憐憫の気持ち - renbin no kimochi) for her as she lay injured and desperately pleaded for her life. He made a conscious choice to "shake off" (吹っ切り - fukkiri) his original murder-suicide plan and instead to try to save her life.
- Abandonment "Of His Own Will" (自らの意志 - mizukara no ishi): Based on this analysis of his internal psychological process—an initial shock and despair leading to the attack, followed by agitation and indecision triggered by the victim's pleas, and culminating in a self-determined choice influenced by emerging compassion—the Sapporo High Court concluded that the defendant had abandoned the completion of the homicide and actively prevented her death "of his own will." It was not a situation where external factors had made it impossible for him to continue with his original plan (he could still have driven home). He could have proceeded with the murder-suicide, but he chose not to.
Significance of the Sapporo High Court Case
This 2001 decision is particularly instructive regarding the "voluntariness" requirement:
- It demonstrates a nuanced understanding of human psychology in crisis situations. The fact that an external factor (such as a victim's pleas or resistance) contributes to an offender's change of heart does not automatically render the subsequent abandonment involuntary.
- It highlights that voluntariness can emerge from an internal struggle. If an offender, though initially prompted by external stimuli, undergoes a period of internal conflict and ultimately makes a self-determined choice to desist or prevent harm, their actions can still be deemed voluntary for the purposes of chūshi misui.
- It suggests that the motivation for abandonment need not be purely spontaneous or exclusively rooted in abstract ethical repentance from the very outset. An evolving internal state, where initial motivations might be mixed but eventually lead to a self-directed decision to stop the criminal course, can satisfy the voluntariness criterion.
- The case underscores the importance of analyzing the defendant's psychological process leading to the abandonment, looking for evidence of genuine internal reconsideration and choice, rather than merely assessing whether objective external factors were present that might have influenced the decision. The physical "fork in the road" in this case served as a powerful metaphor and a concrete point for the defendant's decisive internal shift.
Active Steps to Prevent the Result in "Completed Attempts"
As noted, when an offender has already performed all the physical acts they believe are necessary for the crime to be completed (e.g., setting a timed explosive, administering a lethal dose of slow-acting poison), merely ceasing further personal action or passively hoping the result doesn't occur is insufficient for chūshi misui. Article 43 requires that the offender "voluntarily prevents the consequence thereof." This implies a need for active and effective measures on the part of the offender to neutralize the danger they have created. Examples include:
- Rushing a victim they have poisoned to a hospital to receive an antidote.
- Disarming a bomb they have set before it detonates.
- Warning a potential victim of a trap they have laid so it can be avoided.
- Extinguishing a fire they have started before it causes significant damage or harm.
The efforts to prevent the result must be genuine, undertaken voluntarily, and be reasonably calculated to succeed in averting the harm. A merely token, half-hearted, or clearly inadequate attempt at prevention will not suffice to establish chūshi misui. The defendant in the Sapporo High Court case, by driving the victim to the hospital, took such active and ultimately effective preventative measures.
Conclusion: Encouraging Second Thoughts
Chūshi misui, or voluntary abandonment/prevention, is a significant and somewhat unique doctrine within Japanese criminal attempt law. By offering the prospect of a mandatory reduction or even complete remission of punishment, it provides a powerful legal incentive for individuals who have already commenced a criminal act to reconsider their course and either desist from its completion or actively work to prevent the harmful consequences they have set in motion.
The most critical and often most challenging element to establish is the "voluntariness" (nin'isei) of the abandonment or prevention. This requires a judicial finding that the decision to stop was primarily a product of the offender's own internal will and choice, rather than being predominantly compelled by new external obstacles, pressures, or a sudden realization that the crime has become impossible to complete or unduly risky due to unforeseen circumstances.
The 2001 Sapporo High Court decision involving the stabbing and subsequent hospital transport offers a valuable illustration of this nuanced assessment. It demonstrates that even when external factors, such as a victim's desperate pleas, act as a catalyst for an offender's reconsideration, if the individual then undergoes an internal struggle and ultimately makes a self-determined choice to abandon their criminal purpose and prevent harm, the requirement of voluntariness can be satisfied. This approach recognizes the complex interplay of internal and external factors in human decision-making, particularly in high-stress situations, while upholding the core policy of chūshi misui: to provide a "golden bridge" for offenders to turn back from the path of completed criminality, ultimately serving the broader societal interest in harm prevention.