The Unpunished Client: A 1968 Supreme Court Ruling on Complicity and the Attorney Act

Case Title: Bengoshi-hō Ihan, Dō-kyōsa, Kyōkatsu, Settō Hikoku Jiken (Case Concerning Violation of the Attorney Act, Instigation thereof, Extortion, and Theft)
Court: Supreme Court of Japan, Third Petty Bench
Date of Judgment: December 24, 1968
Case Number: 1967 (A) No. 1988

Introduction: When Hiring Someone to Break the Law Isn't a Crime

In nearly every legal system, the unauthorized practice of law is a criminal offense. Statutes are enacted to protect the public from unqualified individuals offering legal services, ensuring that those who give legal advice and representation are vetted, licensed, and accountable. In Japan, Article 72 of the Attorney Act serves this purpose, making it illegal for a non-lawyer to handle legal matters for others in exchange for a fee.

This raises a fascinating and fundamental question of complicity: If it is a crime for the non-lawyer to provide the service, is it also a crime for the client to request and pay for it? Can a person who hires an unlicensed practitioner be prosecuted as an "instigator" of the non-lawyer's crime?

This very question was the subject of a foundational 1968 Supreme Court of Japan decision. The ruling delved deep into the principles of statutory interpretation and legislative intent, ultimately concluding that the client in such a transaction cannot be punished. In doing so, the Court articulated a crucial legal doctrine regarding a special category of offenses known as "crimes of opposing acts" (taikō-han), where the very structure of the crime requires a participant whom the law has deliberately chosen not to punish.

The Factual Background

The case involved two defendants, R and H, who were charged with several crimes, including instigating a violation of the Attorney Act. The key facts related to this specific charge were straightforward:

• The defendants had each become involved in legal disputes that required settlement negotiations.
• Instead of retaining a licensed attorney (bengoshi), they each hired an unlicensed individual to handle the settlement of their respective legal matters.
• In exchange for these services, the defendants paid or promised to pay a reward to the unlicensed practitioner. (In Defendant R's case, the legal matter concerned a company, C Motors, but the court viewed it as Defendant R handling his own affair as the manager of the company).

The lower courts applied a direct interpretation of the general principles of complicity found in the Penal Code. The unlicensed practitioner had clearly violated Article 72 of the Attorney Act by providing legal services for a fee. Since the defendants had solicited and paid for these services, the courts found that they had "instigated" the crime and were therefore guilty as instigators (kyōsa-han). This seemingly logical conclusion was appealed to the Supreme Court.

The Supreme Court's Ruling: A Masterclass in Statutory Interpretation

The Supreme Court, exercising its power of judicial review, overturned the lower courts' convictions on the charge of instigating a violation of the Attorney Act. The defendants were acquitted of this specific crime. The Court’s reasoning was not based on a factual dispute, but on a profound legal and structural analysis of the Attorney Act itself.

The Court's logic proceeded in four elegant steps:

1. The Nature of the Crime: The Court first analyzed the crime prohibited by Article 72 of the Attorney Act—the unauthorized practice of law for reward, colloquially known as hiben katsudō. It observed that this crime, by its very nature, is a two-party transaction. It logically requires the existence of a "provider" (the non-lawyer offering the service) and a "recipient" or "client" (the person requesting the service and providing the reward). Without the client's participation, the crime simply cannot occur. The client's act of requesting and paying is an indispensable element of the situation the law seeks to regulate.
2. The Legislative Silence: Having established the client's essential role, the Court then scrutinized the Attorney Act for any provision that would punish the client. It found none. While Article 77 of the Act prescribes penalties for the non-lawyer who violates Article 72, the statute is entirely silent on the culpability of the person on the other side of the transaction—the client who hires them.
3. The Principle of Legislative Intent: This "legislative silence" was the crux of the Court's reasoning. The Court interpreted this omission not as an oversight, but as a deliberate choice by the legislature. It established a general principle of interpretation: when a statute defines a crime that necessarily requires the participation of another party, but the statute provides no punishment for that other party, it would be contrary to the legislature's intent to use the general complicity rules of the Penal Code (such as instigation or aiding and abetting) to punish that party. In essence, the specific statute's silence trumps the general law's applicability.
4. Conclusion: Therefore, the Court concluded that a person who hires a non-lawyer to handle their own legal affairs and pays them a reward cannot be punished as an instigator of the non-lawyer's violation of the Attorney Act. To convict the defendants would be to create a punishment that the legislature had implicitly decided against, a violation of the principle that there can be no crime without a law (nullum crimen sine lege).

Deep Dive: The Doctrine of "Crimes of Opposing Acts" (Taikō-han)

The 1968 decision is the leading authority on a unique category of offenses known in Japanese jurisprudence as taikō-han, or "crimes of opposing acts." These are also referred to as crimes of necessary complicity or crimes of convergence.

A taikō-han is an offense whose very definition requires the participation of two or more persons acting with opposing, yet convergent, intentions. The classic example is bribery: it requires one person to give (or offer) a bribe and a public official to receive (or solicit) it. Their actions are "opposed" (giving vs. receiving) but converge to complete the single criminal event.

These crimes create a puzzle for the law of complicity. General complicity rules (instigation and aiding/abetting) are designed for situations where an accomplice helps a principal commit a crime that the principal could theoretically commit alone. But in a taikō-han, the "opposing party" isn't merely helping the principal; their action is a structurally required component of the principal's offense.

The legal question then becomes: If the law explicitly punishes only one party in this necessary pairing, what is the status of the other? The 1968 ruling provides the definitive answer for situations where the legislature is silent about one party.

Let's contrast this with other examples:

• Bribery: The Japanese Penal Code resolves this issue explicitly. Article 197 criminalizes the act of the public official accepting the bribe, while Article 198 separately criminalizes the act of the citizen giving the bribe. Both opposing parties are explicitly punished by the statute.
• Illegal Sale of Narcotics: A person who sells drugs commits a crime. The person who buys them also commits a crime (possession). Again, the law explicitly addresses the culpability of both opposing parties.
• Unauthorized Practice of Law: This is the scenario from the 1968 case. The Attorney Act explicitly punishes the non-lawyer providing the service (the principal offender) but is silent about the client receiving it (the opposing party).

The 1968 judgment establishes the default rule for this third category: where the legislature has criminalized the conduct of one necessary party but not the other, the unpunished party cannot be roped into criminal liability through the back door of general complicity rules. The legislative choice to remain silent is interpreted as a policy decision to exempt the opposing party from punishment. This respects the separation of powers and the principle that defining crimes is the role of the legislature, not the courts.

The Rationale and Limits of the Ruling

Why would the legislature choose to punish the non-lawyer but not the client? The policy rationale is to focus the law's regulatory power on the source of the problem. The goal of the Attorney Act is to maintain the integrity and quality of legal services. The most effective way to do this is to regulate the providers of those services. Punishing clients, who are often vulnerable or uninformed and simply seeking help for their problems, could have a chilling effect. It might discourage people from seeking any help at all or make them hesitant to cooperate in investigations against unlicensed practitioners. By focusing the penalty on the provider, the law targets the professional misconduct without victimizing the consumer of the service.

However, it is important to recognize the limits of this ruling. The Court was careful to state that its conclusion applies to a person who hires a non-lawyer for the settlement of "their own legal affairs." The reasoning might not extend to more complex situations, such as:

• A person who acts as a broker, hiring a non-lawyer on behalf of a third party.
• A person who does more than merely request the service, for instance, by masterminding a complex, fraudulent scheme that the non-lawyer is enlisted to execute.

In such cases, where the "client's" involvement goes beyond the simple, opposing act anticipated by the statute, a court might find that general complicity rules could still apply.

Conclusion

The 1968 Supreme Court decision on the Attorney Act is a cornerstone of Japanese criminal jurisprudence. It is a powerful affirmation that courts must respect the clear intent—and the deliberate silence—of the legislature. By refusing to punish the client who hires an unlicensed practitioner, the Court did not condone the act, but rather clarified the precise focus of the law.

The ruling establishes a vital principle for the interpretation of "crimes of opposing acts": if a crime requires two parties, and the law only penalizes one, the other is, as a general rule, immune from prosecution as an accomplice. This ensures that the judiciary does not overstep its bounds by creating criminal liability where the legislature has chosen to impose none. In the world of unauthorized legal practice, this means the law's sanction is aimed squarely at the unqualified provider, not at the often-desperate client who seeks their services.