Necessity as a Defense in Japan: When is Breaking the Law Justified to Avoid Greater Harm?

Life and business operations can sometimes present dire situations where adhering strictly to the law might lead to a significantly worse outcome than breaking it. Japanese criminal law, like many other legal systems, recognizes this reality through the defense of Emergency Necessity (緊急避難, Kinkyū Hinan), codified in Article 37 of the Penal Code. This doctrine allows an individual to be justified in committing an act that would otherwise be criminal if it was done to avert an imminent danger, provided certain stringent conditions are met. Understanding these conditions is crucial, as the defense of necessity is narrowly construed and involves a careful balancing of competing interests.

1. The Doctrine of Emergency Necessity (Kinkyū Hinan) in Japanese Criminal Law

Article 37, Paragraph 1 of the Penal Code states: "An act unavoidably performed to avert a present danger to the life, body, liberty, or property of oneself or any other person is not punishable only when the harm produced by such act does not exceed the harm to be averted. However, the punishment for an act exceeding the limits of such defense may be reduced or remitted according to the circumstances."

This defense serves as a ground for excluding illegality (違法性阻却事由, ihōsei sokyaku jiyū). The underlying rationale is the principle of balancing legal interests (法益権衡, hōeki kenkō). When faced with an unavoidable conflict between protecting one legal interest and infringing another, the law permits the infringement of the lesser (or equivalent) interest to save the greater (or equivalent) one. The overall aim is the net preservation of legal value.

Distinguishing Emergency Necessity from Self-Defense

It's vital to differentiate emergency necessity from self-defense (seitō bōei), as their requirements and underlying principles differ significantly:

• Target of the Act: Self-defense is a response to an unjust infringement by an aggressor. The defensive act is directed against this aggressor. Emergency necessity, conversely, often involves causing harm to an innocent third party or their property, or breaching a general legal prohibition, to escape a danger that is not necessarily caused by an unjust human attack (it could be a natural disaster, an accident, etc.).
• Balancing of Harms: In self-defense, the harm inflicted on the aggressor can be greater than the harm threatened, provided the defensive act was necessary. In emergency necessity, the harm caused by the evasive act must not exceed the harm sought to be avoided.
• Subsidiarity (Duty to Avoid/Least Harmful Means): Self-defense generally does not impose a strict duty to retreat or choose the least injurious means if a defensive action is warranted. Emergency necessity, however, strictly requires subsidiarity—the act must have been the only reasonably available means to avert the danger.

The PDF notes ongoing academic debate about the precise legal nature of necessity, with the prevailing view supporting it as an illegality-excluding ground. However, some scholars argue that when the act involves transferring harm to a completely innocent third party, it might be better understood as excluding culpability rather than illegality, especially when fundamental interests like life are pitted against life.

2. Essential Conditions for Invoking Emergency Necessity

For an act to be justified under emergency necessity, all the following conditions must be satisfied:

A. A "Present Danger" (現在の危難, Genzai no Kinan)

There must be an existing, immediate, and ongoing danger to a legally protected interest.

• Protected Interests: The danger must threaten the "life, body, liberty, or property of oneself or any other person." This list is considered to broadly cover essential personal legal interests.
• Nature of "Present": The danger must be imminent and currently existing, not merely a future or past threat. It requires a situation of pressing urgency. For example, the Supreme Court, in its ruling of February 4, 1960 (the Sekine-bashi Case), denied "present danger" where a bridge was dilapidated and posed a general risk, but there wasn't an immediate, unavoidable crisis justifying its preemptive destruction by the defendants.
• Source of Danger: Unlike self-defense, the danger in necessity need not stem from an "unjust" human act. It can arise from natural disasters (e.g., floods, earthquakes, as in a Daishin-in (Great Court of Cassation) ruling of November 30, 1933, involving flooding of a rice paddy), accidents, animal behavior, or even lawful human conduct.
• Worthy of Protection: The interest threatened must be one that the law deems worthy of protection in the specific circumstances. If the interest itself has lost its legal protection (e.g., illegal drugs) or if the person whose interest is threatened has validly consented to the risk, the basis for necessity may be undermined. Similarly, one cannot typically claim necessity to resist a lawful exercise of state power (e.g., a lawful arrest or the execution of a death sentence).
• "Coerced Necessity" (Kyōyō ni yoru Kinkyū Hinan): It's recognized that necessity can arise when a person is coerced by another into committing an offense to avoid a greater harm threatened by the coercer. For example, if X is forced to participate in a robbery because Y threatens X's child, X might argue emergency necessity to protect the child's life or safety by reluctantly complying, assuming other conditions are met (Tokyo District Court, June 26, 1996).

B. Act Done "To Avoid the Danger" – The Will to Evade Danger (避難の意思, Hinan no Ishi)

The act performed must have been subjectively motivated by the purpose of averting the present danger. If the act was done for other reasons (e.g., personal gain, malice), even if it coincidentally helped avert a danger, the defense of necessity would not apply. The PDF indicates that this subjective element is less debated than the "intent to defend" in self-defense, perhaps because the exigent circumstances in necessity scenarios often make the evasive purpose more apparent.

C. The Act Was "Unavoidable" – The Principle of Subsidiarity (補充性の要件, Hojūsei no Yōken)

This is a cornerstone of the necessity defense. The act taken to avert the danger must have been the only reasonably available means, or at least the least harmful means capable of achieving that objective. If there was another lawful or less harmful way to escape the danger, the defense of necessity will be denied. This reflects the idea that infringing a legal interest is only permissible as a last resort.

• Case Examples:
  • In the Sekine-bashi Case (Supreme Court, February 4, 1960), the defendants dynamited a dangerous bridge, claiming it was to prevent accidents. The court denied necessity, partly because other, less drastic measures like strengthening traffic restrictions were available.
  • Driving without a license to transport a sick person was not deemed necessary when an ambulance could have been called (Tokyo High Court, May 24, 1971).
  • Conversely, a driver swerving to avoid an oncoming vehicle that had crossed the center line, consequently hitting another vehicle or object, might successfully claim necessity if the swerve was the only immediate option to avoid a head-on collision (Osaka High Court, May 1, 1970).
• Some legal scholars and courts also discuss a requirement for the "appropriateness of the evasive act" (hinan kōi no sōtōsei), meaning the act itself must be a socially tolerable method of addressing the danger, even if it meets the other criteria.

D. The Balance of Harms (害の均衡, Gai no Kinkō)

This is perhaps the most crucial and distinguishing element of emergency necessity. The harm actually caused by the defendant's evasive act must not exceed the harm that was sought to be avoided.

• Assessing Harms: This requires a comparison of the legal interests involved. The value of the interest preserved must be at least equal to, or greater than, the value of the interest infringed by the defendant's act. For example, causing minor property damage to save a human life would likely satisfy this balance. Causing a death to save property generally would not.
• Equivalence is Sufficient: Notably, Japanese law (Article 37(1)) allows the defense even if the harm caused is equivalent to the harm avoided (e.g., sacrificing one person's property of a certain value to save another person's property of the same value). This is a point of difference with some legal systems that might require the harm avoided to be greater than the harm caused.
• Concrete Comparison: The balancing is not done in the abstract but by comparing the concrete harms in the specific situation. This can be challenging when the interests are of different kinds (e.g., liberty vs. property). Courts and legal theory strive for an objective assessment based on prevailing societal values.
• Multiple Harms Caused: If the evasive act causes multiple harms, these are generally aggregated and weighed against the harm avoided.

3. Limitations and Exclusions to the Necessity Defense

Even if the basic conditions appear to be met, certain circumstances can limit or exclude the availability of the necessity defense.

A. Self-Induced Danger (自招危難, Jishō Kinan)

If the actor culpably (intentionally or negligently) created the dangerous situation from which they then seek to escape by harming an innocent third party or breaching the law, the defense of emergency necessity is generally unavailable or significantly restricted. One cannot typically rely on a crisis of one's own making to justify further wrongdoing against innocents. A Daishin-in ruling of December 12, 1924, supports this principle.

B. Persons with Special Duties (業務上特別義務者の例外, Gyōmujō Tokubetsu Gimusha no Reigai)

Article 37, Paragraph 2 of the Penal Code stipulates that the provisions of necessity do not apply to persons who have a special duty arising from their profession or occupation to face certain dangers. For example, firefighters, police officers, or soldiers are expected to endure certain risks inherent in their duties and cannot easily claim necessity when confronted with those specific dangers while on duty. However, this exclusion is not absolute. If the danger faced is far beyond what can be reasonably expected even for such professions, the defense might still be available.

4. When the Act Goes Too Far: Excessive Necessity (過剰避難, Kajō Hinan)

The proviso to Article 37(1) addresses situations of excessive necessity (Kajō Hinan). If the act performed, while aimed at averting danger, "exceeds the limits" of what was necessary or permissible (e.g., it fails the subsidiarity test significantly, or the harm caused is clearly disproportionate to the harm avoided), it is not fully justified. However, the court may reduce the punishment or remit it entirely, taking into account the circumstances.

This reflects a recognition that individuals acting under extreme pressure of a present danger might not always perfectly calibrate their response. Excessive necessity can arise from breaching the subsidiarity requirement (e.g., using a more harmful means than necessary, as in a Tokyo High Court case from November 29, 1982, involving quantitatively excessive drunk driving to escape a perceived threat) or the balance of harms requirement.

5. Emergency Necessity in a Corporate or Business Context

The doctrine of emergency necessity, while primarily developed with individual actions in mind, can theoretically be relevant in corporate or business scenarios, although its application is likely to be very narrow and highly scrutinized.

• Protecting Vital Corporate Interests or Public Safety: Could a corporation or its executives justify an otherwise unlawful act (e.g., a minor regulatory breach, a controlled release of a pollutant below emergency thresholds) to prevent an imminent and catastrophic event (e.g., a major factory explosion threatening widespread public safety, or an unavoidable action to prevent an imminent systemic financial collapse directly caused by an external, unforeseen event)?
• "Present Danger" for Business Crises: Defining a "present danger" for abstract corporate interests like financial stability or reputation, sufficient to justify harming concrete third-party interests, would be exceptionally challenging. The danger would likely need to be one that threatens not just the company's profits but its very existence in a way that has broader, severe societal implications, or that directly threatens the life or safety of many people.
• Subsidiarity for Corporations: When a company faces a crisis, the range of "available alternatives" before resorting to an act that harms third parties would be broad. This could include seeking regulatory exemptions or guidance, emergency financing, controlled shutdowns, issuing public warnings, or even initiating bankruptcy proceedings. The threshold for proving "no other way" would be extremely high.
• Balancing Harms Involving Business Interests: Courts would be very cautious in weighing the preservation of a business interest (even its survival) against direct harm to individuals' lives, health, or fundamental property rights, or significant public interests. The protection of human life and safety would almost invariably be prioritized.
• Environmental or Industrial Emergencies: A more plausible scenario might involve a factory facing an imminent internal catastrophic event (e.g., an uncontrollable chemical reaction). An emergency action, such as an unauthorized emergency discharge of a substance to prevent a much larger explosion and release of more hazardous materials, might be argued under necessity if all conditions, particularly the balance of harms and subsidiarity, were met. The company would need to prove that the emergency action was the only way to prevent a far greater and more immediate disaster.
• Self-Induced Danger: If the emergency a company faces is the result of its own prior illegal activities, gross negligence, or reckless risk-taking, the defense of necessity for subsequent actions that harm others would almost certainly be unavailable.

Conclusion

Emergency necessity (Kinkyū Hinan) provides a narrow but important justification in Japanese criminal law for acts that, while technically unlawful, are performed as a last resort to avert an immediate and serious danger, provided the harm caused does not outweigh the harm avoided. It is a defense that requires a careful and objective balancing of competing legal interests under circumstances of extreme pressure.

While its direct application by corporations to justify actions that cause significant external harm or involve serious breaches of law would face formidable legal hurdles, the underlying principles of prioritizing greater interests and considering the lack of alternatives in crises are relevant to corporate decision-making. For businesses, the primary focus should always be on preventative measures, robust risk management, and adherence to the law to avoid situations where such desperate choices might even be contemplated. When genuine emergencies do arise, actions must be carefully weighed, with a strong presumption in favor of protecting human life and safety and exploring all less harmful avenues.