Successive Co-Principalship in Fraud: A 2017 Supreme Court Ruling on the Liability of Late-Joining Accomplices

Decision of the Third Petty Bench of the Supreme Court of Japan, December 11, 2017

(Case No. 2017 (A) No. 1079: Case of Attempted Fraud)

Introduction

In a decision dated December 11, 2017, the Supreme Court of Japan provided a definitive answer to a critical legal question arising from the proliferation of "special fraud" schemes plaguing the nation. The case centered on the criminal liability of an accomplice who joins a fraud operation after the initial act of deception has already taken place, participating only in the final stage of receiving the money. This type of accomplice is commonly known in Japan as an ukeko (catcher). The Court's ruling tackled two complex issues: first, whether such a late-joining party can be held liable as a co-principal for the entire fraud, and second, how a police "sting operation"—where the victim plays along after discovering the fraud—affects this liability. This decision is particularly significant when contrasted with a 2012 Supreme Court ruling that rejected successive co-principalship in cases of bodily injury, thereby adding a new layer of nuance to Japan's doctrine of joint criminal responsibility.

Factual Background

The Fraud Scheme: Deception and Sting Operation

The case began on or around March 16, 2015, when an unidentified perpetrator (the kakeko, or caller) telephoned the victim, A. The caller falsely claimed that A had won a special lottery for the "Loto 6" numbers game and needed to pay a "penalty fee" to claim the prize and participate in future drawings. This was the initial act of deception (gimō kōi).

However, A quickly realized it was a scam and contacted the police. In cooperation with law enforcement, A initiated a "pretending-to-be-deceived operation" (a sting operation). Following police instructions, A played along with the perpetrator's demands and shipped an empty box, containing no cash, to the address specified by the criminals.

The Defendant's Late Involvement as the "Catcher"

The defendant's involvement began after these events had transpired. On or after March 24, well after the initial deception and the commencement of the sting operation, the defendant was contacted by an unidentified co-conspirator. He was offered payment to receive a package, and he accepted the role, recognizing the possibility that he was participating in a scheme to collect the proceeds of a fraud. This act of agreeing to participate constituted his entry into the criminal conspiracy.

On March 25, the defendant went to the designated vacant apartment and received the empty box that A had shipped, thereby completing his assigned role in the scheme.

The Conflicting Rulings of the Lower Courts

The defendant's unique position—joining a fraud scheme mid-stream and after its success had already become impossible—led to starkly different conclusions in the lower courts.

The Trial Court: Acquittal

The Fukuoka District Court acquitted the defendant. Its reasoning was that the defendant could not be held responsible for the initial act of deception, as it occurred before he joined the conspiracy. Furthermore, by the time he did participate, the sting operation was underway, meaning there was no longer a real danger of the crime succeeding. The court concluded that the defendant's act of receiving the box did not constitute a criminal act of attempted fraud, as the objective possibility of success had been eliminated.

The Appellate Court: Conviction for Attempted Fraud

The Fukuoka High Court overturned the acquittal and found the defendant guilty of attempted fraud as a co-principal. Its judgment rested on two key points:

1. Affirmation of Successive Co-Principalship: The court held that even a person who only participates in the final act of receiving the property can be a co-principal in fraud. This is because their role is causally linked to the transfer of property from the deceived victim, which is the essential harm in fraud. Given the importance of the ukeko's role in completing the scheme, principalship could be affirmed.
2. Affirmation of "Danger" via the Theory of Impossible Attempts: Regarding the sting operation, the court applied the "concrete danger" theory from the legal doctrine of impossible attempts. It reasoned that circumstances unknown to the perpetrator and a general observer (like the secret sting operation) should not be considered when assessing the dangerousness of the act. From an objective, external perspective, the defendant's act of receiving the package posed a realistic danger of completing the fraud. Therefore, he was liable for an attempt.

The Supreme Court's Definitive Decision

The Supreme Court upheld the High Court's conviction but did so with a more streamlined and potent rationale. It sidestepped the technical debate on impossible attempts and focused instead on the holistic nature of the fraudulent act.

The "Integrality" of Deception and Receipt

The core of the Supreme Court's logic was the concept of "integrality" (ittai-sei). It stated:

"The defendant...conspired with the co-conspirators and participated in the act of receipt, which was planned as an integral part of the initial act of deception to complete the fraud in this case."

Because the act of deception and the act of receipt were two inseparable components of a single, unified criminal plan, they could not be legally bifurcated.

Liability for the Entire Fraud, Regardless of the Sting Operation

Based on this principle of integrality, the Court delivered its decisive conclusion:

"Thus, regardless of the commencement of the sting operation, the defendant is to be held responsible as a co-principal for attempted fraud for the entire fraud in this case, including the act of deception that occurred before his participation."

This single sentence accomplished two things: it definitively established that successive co-principalship applies to fraud, and it rendered the existence of a sting operation irrelevant to the establishment of the late-joining accomplice's liability for an attempt.

Analysis and Interpretations of the Ruling

The Supreme Court's concise language has invited several theoretical interpretations among legal scholars.

1. The "Succession of Dangerousness" View: This interpretation suggests that the "integrality" of the acts causes the dangerousness of the initial deception to be "succeeded" or transferred to the subsequent act of receipt. However, this view is in tension with the principle of individual responsibility and the dominant "causal theory of complicity" in Japan, as it would hold the defendant liable based on the danger created by another's act, with which he had no initial causal connection.
2. The Causality-Based View: A more dominant interpretation argues that the defendant is liable because his own act (receiving the package) has a causal link to the essential result of fraud—the transfer of property from a deceived person. The Supreme Court's emphasis on "integrality" is understood as the basis for classifying the defendant's act as part of a fraud, rather than a lesser crime like theft of lost property. The sting operation's effect is a separate issue of "impossible attempt," which the High Court correctly analyzed but the Supreme Court chose to bypass in its judgment.
3. The "Holistic Act" Approach: This emerging view suggests that for co-principals, the law should look at the causal link between the "holistic act" (the combined acts of all conspirators) and the criminal result. The Court's language of "integrality" is highly compatible with this approach.

Juxtaposing the Fraud and Bodily Injury Precedents

The true significance of this 2017 decision is revealed when it is placed alongside the Supreme Court's 2012 ruling on successive co-principalship in a bodily injury case.

• 2012 Bodily Injury Case: The Court rejected successive co-principalship, ruling that a late-joining assailant could not be held responsible for injuries inflicted before their arrival because they had no causal connection to those past results.
• 2017 Fraud Case: The Court affirmed successive co-principalship, holding the late-joining ukeko responsible for the entire fraudulent scheme, including the initial deception.

Why the different outcomes? The distinction lies in the structure of the crimes.
In fraud, the act of deception creates a "state" (the victim's mistaken belief). The subsequent act of receipt utilizes this pre-existing state to achieve the final criminal result (the transfer of property). The two acts are functionally and causally intertwined in a single process aimed at one result.
In bodily injury, an assault directly produces an injurious result. Each blow creates a discrete (or aggravating) injury. A later assault does not "utilize" the prior injury to cause a new one; it simply adds a new injury. The causal link is sequential, not functional in the same way. The 2017 decision implicitly recognizes this structural difference.

Conclusion

The Supreme Court's December 11, 2017 decision provided critical legal certainty in the fight against sophisticated fraud operations. It unequivocally established that accomplices who join late to play the crucial role of "catcher" bear full responsibility as co-principals for the entire fraudulent scheme, from the initial lie to the final attempt at collection. Furthermore, it affirmed that police sting operations, while preventing the crime's completion, do not absolve these late-joining parties of their liability for an attempt. By creating a clear contrast with its 2012 ruling on bodily injury, the Court has advanced a more sophisticated understanding of successive co-principalship—one that is not a one-size-fits-all doctrine but is instead sensitive to the unique structure and causal dynamics of different types of crimes.