Indirect Perpetrators in Japan: When Can Someone Be Held Liable for a Crime Committed by Another?

In criminal law, liability is typically attached to the person who directly commits the prohibited act. However, what happens when an individual masterminds a crime but uses another person to carry out the physical actions? Japanese criminal law addresses this scenario through the concept of indirect perpetration (間接正犯, Kansetsu Seihan), a doctrine that holds the "person behind the scenes" liable as a principal offender, not merely as an accomplice. Understanding when and how indirect perpetration is established is crucial for a complete picture of criminal responsibility in Japan.

1. What is Indirect Perpetration (Kansetsu Seihan) in Japanese Criminal Law?

Indirect perpetration occurs when a person, possessing the requisite criminal intent, uses another individual as an "instrument" or "tool" to commit the elements of an offense (kōsei yōken). Instead of performing the criminal act (jikkō kōi) themselves (direct perpetration or chokusetsu seihan), the indirect perpetrator achieves the criminal outcome through the actions of this intermediary.

It is vital to distinguish indirect perpetration from accomplice liability, such as instigation (教唆, kyōsa) or aiding and abetting (幇助, hōjo). Accomplices assist or encourage a principal offender who is themselves fully responsible for the crime. In contrast, an indirect perpetrator is the principal offender. The intermediary in an indirect perpetration scenario typically lacks full criminal responsibility for the specific crime committed, either because they lack the necessary criminal intent, are not criminally capable, are acting under a mistake, or are being coerced, making them, in the eyes of the law, akin to a tool in the hands of the indirect perpetrator. The Supreme Court of Japan referenced this idea in its ruling of October 30, 1997 (Heisei 9), describing the situation as using another "as a tool for realizing one's own crime."

The core of indirect perpetration lies in the control (支配, shihai) that the indirect perpetrator exercises over the commission of the crime, usually by exploiting the intermediary's specific condition or situation. The law essentially equates the indirect perpetrator's act of manipulating the intermediary with the direct commission of the crime.

For indirect perpetration to be established, the person behind the scenes must generally have the intent (故意, koi) to commit the crime and be aware of the circumstances concerning the intermediary that allow them to be used as an instrument (e.g., the intermediary's lack of intent, mistake, or incapacity).

2. When is the Intermediary Considered an "Instrument"? Key Scenarios

The determination of whether an intermediary is an "instrument" depends on the specific circumstances. Japanese law and jurisprudence have identified several key scenarios:

A. Exploiting the Intermediary's Lack of Criminal Intent (Non-Intentional Intermediary)

One of the clearest cases for indirect perpetration is when the intermediary acts without the criminal intent required for the offense. The indirect perpetrator, possessing the intent, uses the innocent actions of the intermediary to achieve their criminal purpose.

• For example, if A, intending to poison C, gives a cake containing poison to B, an unsuspecting delivery person, and instructs B to deliver it to C, who then consumes it and dies, A would be an indirect perpetrator of homicide. B, lacking any intent, is merely an innocent agent.
• The Supreme Court ruling of July 3, 1956 (Shōwa 31) affirmed theft by indirect perpetration where the defendant, without authority, purported to sell another's property and had an unknowing third party (the buyer) take the property away. The buyer, believing the sale to be legitimate, lacked the intent for theft, acting as the defendant's instrument.

B. Exploiting the Intermediary's Lack of Criminal Capacity or Culpability

If the intermediary lacks the legal capacity to be held criminally responsible, the person who directs their actions can be an indirect perpetrator.

• Using Persons Lacking Mental Capacity: This includes individuals deemed legally insane (心神喪失者, shinshin sōshitsusha) who cannot comprehend the nature of their actions or conform their conduct to the law, or very young children who haven't reached the age of criminal responsibility (under 14 in Japan, Penal Code Article 41). If such an individual is manipulated to perform the actus reus of a crime, the manipulator is the indirect perpetrator.
• Nuances with Minors: While those under 14 are criminally irresponsible, using a minor who is capable of understanding right from wrong might not automatically lead to indirect perpetration unless their will is substantially suppressed.
  • The Supreme Court, in a ruling on September 21, 1983 (Shōwa 58), affirmed indirect perpetration of theft where the defendant had suppressed the will of a 12-year-old girl to make her steal.
  • However, in another case (Supreme Court ruling, October 25, 2001 (Heisei 13)), the court found a defendant to be a joint principal (共同正犯, kyōdō seihan) with a 12-year-old for robbery, implying the minor had sufficient understanding and participation to be considered a co-perpetrator, rather than a mere instrument. This highlights that the specific level of the intermediary's understanding and autonomy is crucial.

C. Exploiting the Intermediary's Mistake or Ignorance (Including the Victim as Intermediary)

An indirect perpetrator can also commit a crime by exploiting a mistake or ignorance on the part of the intermediary, including the victim themselves.

• Victim Lacks Awareness: If the victim performs an act that leads to their own harm (or the harm of a protected interest) because they are unaware of the true nature of the act or the surrounding circumstances due to the defendant's manipulation.
  • The Daishin-in (Great Court of Cassation) ruling of April 19, 1933 (Shōwa 8) and the Supreme Court ruling of February 21, 1952 (Shōwa 27) involved scenarios where victims were used as instruments in crimes against themselves due to their lack of understanding.
• Victim Acts Under Deception: A classic example is the "feigned suicide pact." If A persuades B to consume poison as part of a supposed joint suicide, but A has no intention of dying and only intends for B to die, A can be an indirect perpetrator of homicide. B's act of self-poisoning is based on A's deception (Supreme Court ruling, November 21, 1958 (Shōwa 33)).

D. Exploiting Coercion or Duress Applied to the Intermediary (Including the Victim)

If the intermediary is forced to commit the criminal act due to coercion or duress exerted by the defendant, rendering the intermediary's will effectively overridden, the defendant can be an indirect perpetrator.

• The Supreme Court, in a ruling on January 20, 2004 (Heisei 16), dealt with a situation where the victim was manipulated into a mental state where they felt they had no choice but to perform an act that led to their death; the person exerting such control was held liable as an indirect perpetrator. A similar finding was made in a Supreme Court ruling dated March 27, 1984 (Shōwa 59). The key is that the intermediary's capacity for free action is vitiated by the defendant's pressure.

E. Using an Intermediary Whose Own Act is Lawful (e.g., Justified)

Perhaps one of the most legally intricate scenarios is when the intermediary's act, though fulfilling the objective elements of a crime, is itself lawful because it is justified (e.g., performed out of necessity or by a public official acting within their authority but based on false information provided by the defendant).

• A historical Daishin-in ruling of May 7, 1921 (Taishō 10) illustrates this. The defendant performed a dangerous, illegal abortion on a woman, leading to a life-threatening situation. A doctor was then called who, to save the woman's life (an act of necessity), performed a procedure that resulted in the expulsion of the fetus. The defendant was held liable for illegal abortion through indirect perpetration, using the doctor's justified medical intervention as the "instrument."
• More recently, the Supreme Court ruling of October 30, 1997 (Heisei 9) involved a "controlled delivery" of illegal drugs. Customs officials, having discovered the drugs, allowed an unwitting courier (who was effectively acting lawfully under their direction) to complete the delivery to the intended recipient (the defendant). The defendant, who had arranged the shipment, was convicted of illegal importation by indirect perpetration, using the law-abiding courier (and, in a sense, the customs operation) as the means.

F. Intermediary Lacks a Required Special Status or Purpose

For certain crimes, the perpetrator must possess a special status (身分, mibun - e.g., being a public official for bribery) or a specific purpose (目的, mokuteki - e.g., intent to utter for currency counterfeiting). If a person uses an intermediary who lacks this required status or purpose, the question of indirect perpetration by the person possessing the status/purpose arises.

• If a public official (who has the status) uses an innocent private citizen (lacking status) to solicit or receive a bribe on their behalf, the official might be considered an indirect perpetrator of bribery, depending on the degree of control and the citizen's lack of culpability.
• Similarly, if someone with the purpose of uttering counterfeit currency uses an innocent person (lacking that purpose) to physically make the counterfeit notes, the former could be an indirect perpetrator of counterfeiting. However, if the intermediary is aware of the principal's criminal purpose and willingly participates, they might become an accomplice or even a joint principal, altering the analysis from indirect perpetration.

3. Drawing the Line: Indirect Perpetration vs. Instigation/Aiding

The crucial factor distinguishing indirect perpetration from instigation or aiding is the autonomy and culpability of the intermediary.

• Indirect Perpetration: The intermediary is not fully responsible for their actions concerning the crime (due to lack of intent, capacity, mistake, coercion, or justification). They are effectively controlled by the indirect perpetrator.
• Instigation (Kyōsa): An instigator induces a criminally responsible person to decide to commit a crime, which that person then carries out. The intermediary (the principal offender) acts with their own criminal intent and responsibility.
• Aiding and Abetting (Hōjo): An aider assists a criminally responsible principal offender in the commission of a crime.

If the intermediary is a fully responsible actor who commits the crime with the requisite mens rea, then the person who influenced or assisted them is an accomplice (instigator or aider), not an indirect perpetrator. The idea of using an "intentional tool" (an intermediary who acts with intent but is still somehow completely controlled) is highly controversial and generally not accepted as a basis for indirect perpetration in mainstream Japanese criminal theory; such situations usually resolve into accomplice liability or joint principalship.

4. Limitations: "Autogenous Crimes" (自手犯, Jishu-han)

There are certain crimes, known as "autogenous crimes" (jishu-han), which by their very nature require personal execution by the defendant. For these offenses, the idea of committing the crime through another is conceptually impossible.

The classic example of an autogenous crime is perjury (偽証罪, gishō-zai - Article 169 of the Penal Code). The act of giving false testimony under oath is so inherently personal that one cannot commit perjury indirectly by causing another person to lie under oath (though one might be an instigator of the other's perjury). Other crimes that might be considered autogenous could include bigamy or illegal dueling, where the personal involvement is intrinsic to the offense. For jishu-han, indirect perpetration is not a viable theory of liability.

5. Implications in Corporate and Business Contexts

The doctrine of indirect perpetration can have several implications in the corporate or business environment:

• Superior-Subordinate Relationships: Could a manager or executive be an indirect perpetrator if they instruct a subordinate to perform an act, and the subordinate does so without full knowledge of its illegality, or under duress, or based on misinformation provided by the superior? If the subordinate lacks the requisite criminal intent or their will is overridden due to the superior's influence, the superior who orchestrated the act might be an indirect perpetrator.
• Use of Corporate Systems or Unknowing Third Parties: A company might design systems or processes that lead employees, customers, or other third parties (acting innocently or under a mistake) to perform actions that objectively fulfill the elements of a crime. For example, if a company sets up a deceptive online interface that tricks customers into unknowingly agreeing to excessive charges or unauthorized data use, those responsible for designing and implementing such a system with criminal intent could potentially be viewed as indirect perpetrators.
• Ensuring Informed Action by Employees: This doctrine underscores the importance for businesses to ensure that employees, especially those carrying out instructions from superiors, are adequately informed about the nature and potential legal implications of their actions. A lack of transparency or the provision of misleading information from management could expose senior figures to liability as indirect perpetrators if the subordinate acts as an "innocent agent."
• Compliance and Due Diligence: While indirect perpetration focuses on individual liability, a pattern of such conduct within a company could also point to systemic failures relevant to corporate criminal liability (under Ryōbatsu Kitei) if it indicates a lack of proper supervision or a culture that facilitates such manipulation.

In conclusion, indirect perpetration (Kansetsu Seihan) is a significant concept in Japanese criminal law that allows for the attribution of principal criminal liability to individuals who, while not physically executing the criminal act, are the true architects of the crime, using another person as their instrument. It is founded on the idea of control over the criminal event by exploiting the intermediary's lack of intent, capacity, knowledge, or free will, or by leveraging their justified actions. For legal and business professionals, understanding this doctrine is essential for recognizing a less obvious but potent form of criminal responsibility that extends beyond the direct actor.