"I Didn't Know It Was Wrong!": Does Lack of Awareness of Illegality Excuse Criminal Conduct in Japan?

The age-old legal maxim "ignorance of the law is no excuse" (ignorantia juris non excusat) resonates across many legal traditions. In Japan, this principle is formally encapsulated in Article 38, paragraph 3 of the Penal Code. However, the seemingly straightforward nature of this rule belies a complex and evolving discussion within Japanese criminal law regarding the role of an individual's "awareness of illegality" (違法性の意識 - ihōsei no ishiki) in determining their ultimate culpability. Can a genuine belief that one's actions are lawful, or an unavoidable lack of knowledge about a legal prohibition, ever serve to excuse criminal conduct or negate responsibility?

This article explores the Japanese legal system's approach to mistakes of law and the nuanced concept of the "possibility of awareness of illegality." We will examine the theoretical underpinnings, the prevailing judicial stance, and the practical implications, with a particular focus on a key Supreme Court of Japan decision involving the creation of service coupons that closely resembled official currency.

Article 38, Paragraph 3 of the Japanese Penal Code: The Starting Point

The foundational provision is Article 38(3) of the Penal Code, which states:

"Ignorance of the law shall not be deemed to constitute a lack of intent to commit a crime; provided, however, that punishment may be reduced according to the circumstances."
(法律を知らなかったとしても、そのことによって、罪を犯す意思がなかったとすることはできない。ただし、情状により、その刑を減軽することができる。- Hōritsu o shiranakatta toshitemo, sono koto ni yotte, tsumi o okasu ishi ga nakatta to suru koto wa dekinai. Tadashi, jōjō ni yori, sono kei o genkei suru koto ga dekiru.)

This article establishes two key points:

1. Ignorance of Law Does Not Negate Criminal Intent (Koi): The primary assertion is that not knowing a particular law exists or that one's conduct is illegal does not mean that the individual lacked the criminal intent (koi) required for an offense. In Japanese criminal law, koi generally consists of a cognitive element (awareness of the factual circumstances that make up the crime) and a volitional element (the will to carry out the act). Awareness of the act's legal prohibition is not considered part of this core definition of koi.
2. Potential Mitigation of Punishment: The proviso ("provided, however...") allows the court to consider ignorance of the law as a factor in mitigating the sentence. This acknowledges that, while not excusing the crime itself, a genuine lack of awareness of illegality might, in certain situations, reflect a lesser degree of overall blameworthiness.

The Evolving Debate: Awareness of Illegality and Culpability

Despite the seemingly clear statement in Article 38(3), Japanese criminal law theory and, to some extent, judicial practice have grappled with situations where a strict application of the "ignorance is no excuse" rule seems to conflict with fundamental principles of culpability (有責性 - yūsekisei – the blameworthiness of the defendant).

Traditional Strict Interpretation

Historically, the Supreme Court of Japan and earlier high courts largely adhered to a strict interpretation of Article 38(3), maintaining that awareness of illegality was not a prerequisite for criminal responsibility or even for establishing koi. This is sometimes referred to as the "illegality-awareness-unnecessary theory" (違法性の意識不要説 - ihōsei no ishiki fuyōsetsu). For example, in a leading older case (Supreme Court Grand Bench decision, July 14, 1948; 最大判昭23.7.14刑集2.8.889), the Court held that not knowing that methyl alcohol was legally identical to methanol (the possession or transfer of which was prohibited) was mere ignorance of the law and did not negate criminal intent.

Scholarly Theories Advocating for a Role for Awareness of Illegality

However, particularly within Japanese legal academia, various theories emerged arguing that some form of awareness of illegality, or at least the possibility of such awareness, is essential for just culpability. These theories often stem from a normative view of criminal responsibility, which posits that an individual can only be justly blamed and punished if they had a fair opportunity to conform their conduct to the law. Key theoretical currents include:

• Strict Culpability Theory (厳格責任説 - genkaku sekinin setsu) / Strict Intent Theory (厳格故意説 - genkaku koi setsu): These theories argue that true criminal intent (koi) should inherently include an awareness that the conduct is illegal. Under this view, a genuine mistake of law would directly negate koi.
• Limited Culpability Theory (制限責任説 - seigen sekinin setsu) / Limited Intent Theory (制限故意説 - seigen koi setsu): A more moderate position suggesting that while actual, positive awareness of illegality might not be an indispensable component of koi for all offenses, the possibility for the defendant to have been aware of the illegality is crucial. If it was practically impossible for the defendant to know their conduct was prohibited, then koi (or overall culpability) might be negated.
• Culpability Theory (as an Independent Element) (責任説 - sekinin setsu): This has become a highly influential, if not dominant, view in modern Japanese criminal law scholarship. It treats the "possibility of awareness of illegality" (違法性の意識の可能性 - ihōsei no ishiki no kanōsei) as an independent element of overall culpability (yūsekisei), separate from the factual intent (koi). According to this theory, if a defendant, due to an unavoidable mistake of law, lacked not only actual awareness of illegality but also the possibility of becoming aware, then their culpability is negated. This would typically lead to an acquittal, often justified as an "extralegal ground for excuse" (超法規的責任阻却事由 - chōhōkiteki sekinin sokyakujiyū) because the Penal Code doesn't explicitly provide for it as a defense to culpability beyond the sentencing mitigation in Article 38(3).

The "Justifiable Reason" (相当の理由 - Sōtō no Riyū) Standard

Flowing from these theoretical discussions, a practical standard has emerged in some lower court decisions and academic discourse: the idea that a mistake of law might negate culpability if the defendant had a "justifiable reason" (sōtō no riyū) for their lack of awareness of illegality. This "justifiable reason" typically involves circumstances where the defendant actively sought to comply with the law but was misled, for example, by relying on incorrect but seemingly authoritative official advice, or where the law itself was exceptionally obscure, ambiguous, or newly enacted without adequate publicity.

The Counterfeit-like Service Coupons Case: Supreme Court Decision, July 16, 1987

The Supreme Court of Japan addressed these complex issues, albeit somewhat obliquely, in its decision of July 16, 1987 (Saikō Saibansho Kettei, Shōwa 62-nen 7-gatsu 16-nichi, Keishū 41-kan 5-gō 237-ページ). This case concerned defendants who created and distributed service coupons for their restaurants that bore a striking resemblance to then-circulating 100-yen banknotes.

Factual Background

The defendants, X and Y, were involved in creating promotional service coupons for their respective dining establishments. These coupons were designed to closely mimic Japanese 100-yen banknotes in terms of size, overall design, and color. The relevant law was the Act for the Control of Imitation of Currency and Securities (通貨及証券模造取締法 - Tsūka oyobi Shōken Mozō Torishimarihō), which prohibits the manufacture or sale of items that have an appearance "confusingly similar" (紛らわしい - magirawashii) to official currency or securities.

• Defendant X's Conduct and State of Mind:
  • Before proceeding with the printing of his first batch of coupons ("Coupon A," which had a very close resemblance to the 100-yen note), X was alerted by the printing company that his design might be legally problematic.
  • Concerned, X consulted with local police officials – an acquaintance who was a patrol officer and the crime prevention section chief. During this consultation, police officials showed him the text of the relevant law and explicitly informed him that creating items "confusingly similar" to banknotes was a violation. They advised him to make clear alterations, such as significantly changing the dimensions or prominently displaying words like "Sample" (見本 - mihon), to ensure the coupons were not mistakable for real currency.
  • However, X perceived the police officers' demeanor as somewhat lenient and their advice as not entirely definitive or forcefully prohibitive. He also considered that 100-yen banknotes were, by that time, rarely seen in active circulation, and that the reverse side of his coupons would clearly display advertising for his restaurant. He decided to proceed with a design very similar to the banknote, adding only small red text stating "Service Coupon" (サービス券 - sābisu ken) in two places. He reportedly felt optimistic that his actions would not result in punishment ("処罰されるようなことはあるまいと楽観し" - shobatsu sareru yōna koto wa arumai to rakkanshi – "optimistically thought he wouldn't be punished").
  • After printing Coupon A, X took a bundle of these coupons (reportedly even bundled with a bank's paper band) to the same police station, ostensibly as a form of advertisement for his restaurant. The police officers on that occasion did not issue any particular warning or express disapproval; one officer reportedly even found them novel and distributed some to colleagues. This experience further reassured X.
  • Subsequently, X created a second version, "Coupon B," which incorporated more distinct modifications, such as changing the "Bank of Japan Note" (日本銀行券 - Nippon Ginkō-ken) marking to his restaurant's name styled as a "note" (e.g., "Gojūsantsugi Note" - 五十三次券, Gojūsantsugi-ken).
• Defendant Y's Conduct and State of Mind:
  • Defendant Y was shown Coupon A by X. X assured Y that the police had indicated there was no problem with such coupons, that a considerable amount of time had passed since their introduction without any issues, and that even a bank had assisted in bundling them.
  • Y, also noting the very limited circulation of actual 100-yen banknotes at the time, did not feel particularly anxious about the legality of similar coupons. Relying entirely on X's assurances and without conducting any independent investigation or seeking separate legal advice, Y proceeded to have "Coupon C" printed for his own restaurant, with a design similar to X's Coupon B but featuring his restaurant's name.

Lower Court Rulings

Both X and Y were convicted in the first instance and on initial appeal (by the High Court). The High Court, in its reasoning, explicitly acknowledged the theoretical possibility that criminal liability might be negated in exceptional circumstances. It stated that if an actor genuinely believed their conduct was legally permissible, and if there was a "completely justifiable reason" (mattaku muri mo nai to kangaerareru yōna baai) for holding such a belief, then, in accordance with the principle of culpability, criminal liability might not attach. However, the High Court narrowly defined such "justifiable reasons" as being limited to situations like direct reliance on clearly established case law, official published views of competent government authorities, or explicit public pronouncements by officials statutorily responsible for interpreting or enforcing the specific law in question. Applying this stringent standard, the High Court found that neither X nor Y had such a "justifiable reason" for any lack of awareness of illegality concerning their coupons.

The Supreme Court's Decision

The Supreme Court upheld the convictions of both X and Y. However, its reasoning was notable for what it didn't definitively rule on.

• The Court meticulously reviewed the factual circumstances surrounding each defendant's state of mind, particularly X's interactions with the police and Y's reliance on X.
• Crucially, the Supreme Court chose to sidestep a direct ruling on the broader theoretical question of whether a mistake of law, if based on a "justifiable reason," could indeed negate culpability and lead to an acquittal.
• Instead, the Supreme Court adopted a narrower, fact-based approach. It concluded that, even if such a defense were theoretically available, the specific facts of this case did not demonstrate that either X or Y had a sufficiently "justifiable reason" (sōtō no riyū) for their lack of awareness of the illegality of their actions.
  • Regarding X: The Court noted that X had been explicitly shown the relevant law by the police and warned about creating items "confusingly similar" to currency. His subsequent interpretation of the police officers' perceived leniency, his optimistic assumptions, and his later visit to the police station (which the Court characterized as primarily for his own advertising purposes, not as a formal request for a definitive ruling on the coupons' legality) did not amount to a "justifiable reason" for believing his actions were lawful. He had been put on clear notice of the legal prohibition.
  • Regarding Y: The Court found that Y's reliance was solely on the assurances provided by X, a private party with a vested interest. Y had made no independent effort to verify the legality of the coupons, such as consulting with authorities or seeking legal advice. This passive reliance on an interested party's claims was deemed insufficient to constitute a "justifiable reason."

Therefore, the Supreme Court affirmed the convictions by stating that, given the factual circumstances, neither defendant had a "justifiable reason" for any lack of awareness of illegality. This allowed the Court to uphold the result without needing to definitively adopt or reject the underlying legal theory that a "justifiable reason" for a mistake of law could, in principle, negate culpability.

Significance of the 1987 Supreme Court Case

While the 1987 Supreme Court decision did not formally establish a "justifiable reason" exception to the general rule in Article 38(3) at the highest judicial level, its approach was significant:

1. Kept the Theoretical Door Open: By explicitly choosing not to reject the High Court's theoretical discussion of a "justifiable reason" defense outright, and instead focusing on the factual insufficiency of the defendants' claims, the Supreme Court left open the possibility that such a defense might be recognized in a future case with more compelling facts.
2. Implied High Bar for "Justifiable Reason": The decision strongly suggests that if such a defense were to be recognized, the standard for what constitutes a "justifiable reason" would be exceptionally high. Casual interpretations of law, optimistic self-assessments, reliance on informal or incomplete advice (especially from non-authoritative sources or interested parties), or a failure to make reasonable inquiries in the face of clear warning signs would likely not meet this threshold.
3. Emphasis on Diligence and Heeding Warnings: The case implies that individuals, particularly those engaging in activities that are novel or brush up against regulatory boundaries, may have a degree of responsibility to make diligent efforts to ascertain the legality of their conduct, especially if they have been made aware of potential legal prohibitions or risks. X's disregard for the initial, fairly clear police advice was a key factor.

Legal commentators at the time noted that this decision might represent a subtle indication from the Supreme Court that it was open to reconsidering the traditionally very strict stance on mistake of law, even if it was not prepared to make a definitive theoretical shift in this particular case.

What Might Constitute a "Justifiable Reason" (Sōtō no Riyū)?

Although the Supreme Court in the 1987 case did not provide a definition, insights from lower court decisions that have entertained this concept, along with academic theories (often drawing on comparative law, such as the American Model Penal Code § 2.04(3) which allows mistake of law defenses in narrow circumstances), suggest that a "justifiable reason" for a lack of awareness of illegality might be found in situations such as:

• Direct Reliance on an Official and Authoritative Interpretation of Law: This could include relying on a specific statute that is later found unconstitutional, a formal and binding ruling from a competent government agency responsible for administering the law in question, or a clear judicial precedent that directly supported the legality of the conduct but was subsequently overturned. The key is that the reliance must be on a source that can be reasonably considered official and authoritative for the specific legal question. (The Public Bath permit case, discussed in a previous article, where the defendant relied on the actions of administrative officials in accepting a notification, touches on similar themes of reliance on official conduct).
• The Law Being Genuinely Obscure, Newly Enacted Without Adequate Publicity, or Otherwise Reasonably Unknowable: If a legal prohibition is so new, so poorly publicized, or so technical and obscure that a reasonably diligent person in the defendant's position could not have been expected to be aware of it.
• Defendant's Bona Fide and Diligent Efforts to Ascertain the Law: If the defendant made thorough and genuine efforts to understand their legal obligations—for example, by seeking and relying upon advice from qualified legal counsel after full disclosure of facts, or by making formal inquiries with the relevant regulatory authorities and receiving specific (albeit ultimately incorrect) assurances—this might contribute to a finding of "justifiable reason." Simple failure to inquire, or relying on casual or self-interested advice, would generally not suffice.

The "Possibility of Awareness" Standard in Modern Culpability Theory

Under the widely accepted Culpability Theory (sekinin setsu) in contemporary Japanese criminal law scholarship, the core inquiry often shifts from whether the defendant actually knew their conduct was illegal to whether they could have and should have known of its illegality. If a reasonable person in the defendant's specific circumstances, possessing their level of knowledge and experience, would have recognized the potential illegality of the conduct or, at a minimum, would have been alerted to the need to make further inquiries, then the "possibility of awareness of illegality" is deemed to exist. In such cases, culpability is generally not negated by a claimed mistake of law.

This involves assessing whether there were any "warning signs," "red flags," or contextual factors that should have prompted a person of ordinary prudence in the defendant's situation to question the legality of their actions or to seek reliable clarification. In the 1987 service coupons case, Defendant X clearly received such warning signs, initially from the printing company and then more explicitly from the police regarding the relevant statute. His decision to proceed based on his own optimistic interpretation and a perceived lack of forceful prohibition from the police ultimately undermined any claim that his lack of awareness of illegality was truly unavoidable or based on a "justifiable reason."

Conclusion: A Cautious Stance on Mistakes of Law

Japanese criminal law, while formally adhering to the principle that ignorance of the law does not negate criminal intent (as per Article 38(3) of the Penal Code), has seen a persistent and sophisticated academic discussion, along with some nuanced judicial treatment, regarding the impact of an unavoidable mistake of law or a lack of awareness of illegality based on a "justifiable reason."

The Supreme Court of Japan's 1987 decision concerning the counterfeit-like service coupons, while stopping short of definitively establishing a "justifiable reason" defense that would lead to an acquittal, significantly acknowledged the theoretical debate. By focusing its ruling on the factual insufficiency of the defendants' claims to have had such a justifiable reason, it implicitly signaled that the circumstances surrounding a defendant's understanding (or misunderstanding) of the law are not entirely irrelevant to the assessment of their culpability.

However, the case also underscores that the threshold for establishing such a "justifiable reason" is exceptionally high. It requires more than personal misinterpretation, optimistic assumptions, or reliance on informal or incomplete advice, especially when an individual has been made aware of potential legal prohibitions or has failed to exercise reasonable diligence in ascertaining their legal obligations in a regulated sphere. For practical purposes, particularly for individuals and businesses engaging in activities that might be subject to legal or regulatory scrutiny in Japan, assuming that "not knowing the rule" will serve as a defense is a highly risky proposition. A proactive and diligent approach to understanding and complying with all applicable Japanese laws and regulations remains the most prudent and legally sound course of action.