Trying the Impossible: How Does Japanese Law Treat "Impossible Attempts" to Commit a Crime?

Japanese Attorney at Law - Bengoshi L.L.

• 12 min read

The realm of criminal law is not solely concerned with completed offenses; it also extends to situations where an individual endeavors to commit a crime but, for various reasons, fails to achieve the intended result. This is the domain of criminal attempt (未遂 - misui). However, a particularly perplexing subset of attempts involves scenarios where the commission of the crime was, from the very outset, impossible. This is known as an "impossible attempt" (不能犯 - funōhan).

How does the Japanese legal system distinguish between a culpable, punishable criminal attempt and an "impossible attempt" that incurs no criminal liability? The answer lies in a nuanced assessment of the "danger" (危険性 - kikensei) posed by the defendant's actions, an area that has seen considerable theoretical debate and judicial interpretation. This article will explore the concept of funōhan in Japanese criminal law, the theories underpinning its assessment, and a pivotal Supreme Court of Japan decision concerning a defective homemade bomb.

Understanding "Impossible Attempt" (Funōhan) in Japanese Law

An "impossible attempt" arises when an individual, acting with the subjective intent to commit a specific crime, undertakes actions that, due to the nature of the means employed, the characteristics of the object targeted, or other external circumstances, could never have led to the completion of that crime.

Distinction from Ordinary (Obstructed) Attempt

This concept is distinct from an "ordinary attempt" or "obstructed attempt" (障害未遂 - shōgai misui). In an ordinary attempt, the crime could have been successfully completed, but its consummation was prevented by some external factor or intervention (e.g., the arrival of police, unexpected resistance from the victim, or a misstep by the offender). In an impossible attempt, by contrast, the completion of the intended crime was inherently unachievable given the specific facts.

If a court determines that a defendant's actions constitute a true "impossible attempt" (funōhan), the general consequence in Japanese law is non-punishability. This is not because the defendant lacked criminal intent—they clearly intended to commit the crime. Rather, it is because their actions are deemed to have lacked the requisite objective "danger" of actually infringing upon the legally protected interest. This is often framed in legal doctrine as the actus reus of a criminal attempt being incomplete; specifically, the actions did not amount to a "commencement of the execution" of the crime in a manner that posed a genuine threat or danger recognized by law.

It is important to note that the Japanese Penal Code does not contain an explicit statutory provision defining funōhan or mandating its non-punishability as a distinct legal category. Instead, the concept and its legal consequences are derived from the general principles governing attempt liability (Article 43 of the Penal Code, which allows for punishment of attempts when specifically provided for, and Article 44, which provides for discretionary reduction for attempts) and the underlying requirement that punishable conduct must involve a certain degree of "danger."

Theories for Distinguishing Punishable Attempt from Non-Punishable Funōhan

The central challenge lies in drawing a coherent line between attempts that are merely unsuccessful (and thus punishable) and those that are truly "impossible" (and thus not punishable). This distinction hinges on how the "danger" posed by the defendant's actions is assessed. Japanese criminal law theory has seen a long and rich debate on this point, with several major schools of thought:

  1. Subjective Theories (主観説 - shukansetsu): These theories place primary emphasis on the defendant's criminal intent and state of mind.
    • Pure Subjective Theory (純粋主観説 - junsui shukansetsu): Argues that if the defendant acted with the intent to commit a crime, their actions generally constitute a punishable attempt, regardless of any objective impossibility. Only in extreme cases of "superstitious attempts" (迷信犯 - meishinhan), such as trying to kill someone by sticking pins in a voodoo doll, might this theory concede non-punishability due to a complete lack of any rational connection between the act and the intended harm. This theory, in its purest form, has limited acceptance as it could lead to punishing mere thoughts or entirely harmless (though ill-willed) actions.
    • Abstract Danger Theory (抽象的危険説 - chūshōteki kiken setsu): This variant assesses danger based on the facts as the defendant perceived them to be. If, from the defendant's subjective viewpoint and understanding of the circumstances, their actions would logically have led to the completion of the crime, it is considered a punishable attempt. The objective impossibility, if unknown to the defendant, is largely irrelevant.
  2. Objective Theories (客観説 - kyakkansetsu): These theories shift the focus to the objective circumstances and the inherent dangerousness of the defendant's actions, independent of (or in conjunction with) their subjective beliefs.
    • Concrete Danger Theory (具体的危険説 - gutaiteki kiken setsu): This has been a highly influential theory in Japanese legal thought. It assesses the danger posed by the defendant's actions from the standpoint of an ordinary, prudent person at the time of the act, taking into account all the circumstances that this ordinary person would have perceived, supplemented by any special knowledge or awareness actually possessed by the defendant. If such an ordinary person would have perceived a real and concrete danger of the crime being completed, the act constitutes a punishable attempt. If no such danger would have been apparent to an ordinary person, it is a non-punishable funōhan.
    • Objective Danger Theory / Scientific Impossibility (客観的危険説 - kyakkanteki kiken setsu): This approach, in its various forms, focuses on the objective, scientific possibility of the crime's completion given all the actual facts and circumstances, regardless of what the defendant or an ordinary person might have believed.
      • Older "Absolute vs. Relative Impossibility" Distinction (絶対的不能・相対的不能説 - zettaiteki funō / sōtaiteki funō setsu): This was a traditional way of categorizing impossible attempts.
        • Absolute Impossibility: The means used or the object targeted are such that the crime could never be completed under any circumstances (e.g., attempting to shoot someone with a non-functional toy gun, trying to poison with a harmless substance like sugar mistaken for poison). Such cases were generally held to be non-punishable funōhan.
        • Relative Impossibility: The crime could generally be completed using the chosen means and targeting such an object, but it was impossible in this specific instance due to some accidental, extrinsic, or temporary factor (e.g., attempting to pick an empty pocket, firing a real gun that happens to contain a defective bullet in that particular instance, trying to kill a person who, unbeknownst to the attacker, is already dead). These were often considered punishable attempts. This distinction, however, was heavily criticized for its inherent ambiguity and the difficulty in consistently applying the "absolute" versus "relative" labels.
      • Modern Objective Theories: More contemporary objective theories, often aligned with a "result-oriented illegality" perspective (結果無価値論 - kekka mukachiron, focusing on the illegality of causing harmful results), tend to examine the objective probability or likelihood of the criminal result occurring. For example, the "Hypothetical Probability Theory" (仮定的蓋然性説 - kateteki gaizensei setsu) might analyze what factual changes or rectifications would have been necessary for the crime to have been completed and then assess the objective likelihood of those conditions being met. If there was objectively no, or an extremely low, probability of the crime's completion, the act would be deemed an impossible attempt.

The Supreme Court's Evolving Stance

Historically, Japanese Supreme Court precedents sometimes employed language consistent with the "absolute vs. relative impossibility" distinction. However, over time, and particularly influenced by academic discourse, the Court's approach has evolved. A pivotal case concerning a defective homemade bomb signaled a move towards a more nuanced standard that incorporates a "legal evaluation of danger," considering not just brute physical possibility but also the perceptions of an ordinary person and the defendant's own beliefs regarding the efficacy of their actions.

The Defective Homemade Bomb Case: Supreme Court Decision, March 16, 1976

The Supreme Court of Japan's decision on March 16, 1976 (Saikō Saibansho Hanketsu, Shōwa 51-nen 3-gatsu 16-nichi, Keishū 30-kan 2-gō 146-ページ) is a landmark in the jurisprudence of impossible attempts.

Factual Background

The defendants in this case constructed a homemade explosive device, commonly referred to as a "Peace-can bomb" (ピース缶爆弾 - pīsu-kan bakudan). This device consisted of a "Peace" brand cigarette can packed with dynamite, a detonator, and a fuse. Their intent was to cause an explosion. They lit the fuse of this bomb and threw it towards the gate of a riot police facility.

However, the bomb failed to explode. The reason for this failure was a latent defect: an adhesive that had been applied to secure the fuse to the detonator had inadvertently seeped into the gunpowder at the tip of the fuse. This contamination caused the fuse to extinguish partway through its burn, preventing it from igniting the detonator and, consequently, the main dynamite charge.

The defendants were charged with the "use of explosives" (爆発物ヲ使用シタ - bakuhatsubutsu o shiyō shita) under Article 1 of the Explosives Control Act (爆発物取締罰則 - Bakuhatsubutsu Torishimari Bassoku). This particular offense does not require an actual explosion to occur for the crime of "use" to be complete. However, the concept of "use" in this context inherently implies putting the explosive device into a state where it can explode and thereby poses the type of public danger the Act seeks to prevent. The core issue, therefore, was whether lighting the fuse of this latently defective bomb constituted a punishable "use" of explosives or a non-punishable impossible attempt.

Lower Court Rulings

Both the Tokyo District Court (October 23, 1973) and the Tokyo High Court (October 24, 1974) ruled in favor of the defendants on this point. They found that the defendants' actions did not constitute the "use" of explosives as defined by the Act. Their reasoning was primarily based on a strict assessment of objective physical possibility: because the bomb, due to its specific defect, had no actual possibility of exploding when its fuse was lit in that condition, it was not put into a "state capable of exploding." The High Court, while acknowledging that the device was, in principle, an "explosive device" due to its components, focused on the fact that the act of lighting its defective fuse did not, in that specific instance, create an actual danger of explosion.

The Supreme Court reversed the decisions of the lower courts and held that the defendants' actions did constitute the punishable "use" of explosives. The Supreme Court's reasoning marked a significant departure from a purely physical or scientific assessment of impossibility:

  1. Nature of the Defect vs. Fundamental Structure: The Court emphasized that the bomb possessed the basic structure and inherent properties to explode. The failure was not due to a fundamental flaw in its explosive nature (e.g., being filled with inert material) but rather to a defect in an "ancillary component" or its assembly—specifically, the unintended consequence of the adhesive used on the fuse. The Court noted that while using adhesive in this manner was not a standard or recommended practice, it would not invariably or inevitably prevent the fuse from functioning in all such instances.
  2. Defendant's Belief and the Ordinary Person's Perception:
    • The defendants were unaware of the specific defect caused by the adhesive. They fully believed that the bomb was functional and that lighting the fuse would cause it to explode. They intended to use it as an effective explosive device.
    • The Supreme Court then considered the perspective of an ordinary person. It stated that, given the outward appearance of the device (a can packed with dynamite, with a visible fuse and detonator) and the defendants' actions (lighting the fuse and throwing it), an ordinary person observing the situation would also have believed the bomb to be viable and to pose an extreme danger.
  3. "Legal Evaluation of Danger" as the Decisive Standard: The core of the Supreme Court's ruling was its assertion that the question of whether an act constitutes the "use" of explosives (i.e., putting it into a state capable of exploding and thereby creating the relevant danger) should not be judged solely from a purely physical or scientific viewpoint of actual, immediate explosion possibility. Instead, it requires a "legal evaluation of danger" (法的な意味において、右構成要件を実現する危険性があったと評価できるかどうか - hōteki na imi ni oite, migi kōsei yōken o jitsugen suru kikensei ga atta to hyōka dekiru ka dōka). This legal evaluation must take into account the legislative purpose of the Explosives Control Act (which is to protect public safety from the dangers of explosives), the inherent dangerousness of the object itself, and the nature of the defendant's actions.
  4. Conclusion on "Use": Applying this "legal evaluation of danger," the Supreme Court concluded that, despite the specific latent defect in the fuse, the homemade bomb, due to its fundamental construction and explosive content, retained a high degree of potential danger. The defendants' act of lighting its fuse and throwing it—done with the belief that it was functional and in circumstances where an ordinary person would also perceive a grave risk—created a legally cognizable danger of realizing the very harm (an explosion endangering public safety) that the statute aims to prevent. Therefore, their actions constituted the punishable "use" of explosives.

Significance of the 1976 Defective Bomb Case

This Supreme Court decision is a landmark in Japanese criminal law concerning impossible attempts for several reasons:

  • Shift from Pure Objectivism: It signaled a significant move by the Supreme Court away from a purely objective, scientific assessment of actual physical impossibility (as had been adopted by the lower courts in this very case) when determining the punishability of an attempt.
  • Adoption of a "Legal Evaluation of Danger" Standard: It introduced a more normative standard, the "legal evaluation of danger," which allows courts to consider broader factors beyond immediate physical feasibility.
  • Alignment with Concrete Danger Theory: This approach, which incorporates the perception of an ordinary person and considers the defendant's own beliefs about the efficacy of their actions, has strong conceptual affinities with the "concrete danger theory" (具体的危険説) of attempts.
  • Relevance for Inherently Dangerous Instrumentalities: The case suggests that for crimes involving objects or substances that are inherently dangerous by their very nature (like explosives), the threshold for finding a non-punishable "impossible attempt" due to a minor or latent defect might be quite high. If the object generally appears to be what it is, and the defendant uses it with criminal intent believing it to be functional, the law may be less inclined to excuse the attempt simply because of an unapparent, specific flaw that prevented completion in that particular instance, especially if an ordinary observer would still perceive a significant danger from the defendant's actions.

The standard that emerges from the 1976 Supreme Court case, and which aligns with the influential "concrete danger theory," generally involves assessing the danger of the defendant's actions from the standpoint of a prudent ordinary person at the time of the act. This assessment considers all the circumstances that this ordinary person would have been aware of, plus any special knowledge or beliefs actually possessed by the defendant.

The core inquiry becomes: Would such an ordinary person, observing the defendant's actions and knowing what the defendant knew (or what was generally apparent from the situation), believe that there was a real and substantial possibility of the intended crime being completed?

Consider these examples:

  • Attempting to shoot someone with an unloaded gun that the defendant believes is loaded: An ordinary person, seeing someone aim what appears to be a real gun and pull the trigger, would undoubtedly perceive a grave danger. This is typically considered a punishable attempt (often classified under older theories as "relative impossibility").
  • Attempting to poison someone with sugar, which the defendant mistakenly believes is arsenic: The defendant clearly has the intent to kill. However, an ordinary person, knowing the substance is merely sugar, would perceive no danger of poisoning. This is a classic example of a non-punishable funōhan.
  • The Defective Bomb Case: The device looked like a functional bomb and was handled by the defendants as if it were. The defect rendering it inert in that instance was not apparent. An ordinary person observing the act of lighting the fuse and throwing such a device would perceive an extreme and immediate danger. Thus, it was deemed a punishable "use."

Recent Developments: The "Deceived Pretended Victim" in Fraud Stings

The principles of assessing "danger" in attempts also arise in modern contexts, such as fraud cases involving "deceived pretended victim" operations (だまされたふり作戦 - damasareta furi sakusen). These are often undercover sting operations targeting organized fraud schemes (e.g., "it's me" scams - オレオレ詐欺, ore ore sagi). If the targeted "victim" is, in fact, cooperating with law enforcement and is fully aware of the scam, they cannot actually be deceived, making the completion of the fraud against that person impossible. Is an attempt to defraud them in such circumstances a non-punishable funōhan?

A Supreme Court of Japan decision on December 11, 2017 (Saikō Saibansho Kettei, Heisei 29-nen 12-gatsu 11-nichi, Keishū 71-kan 10-gō 535-ページ) addressed this. The Court held that even if the intended individual victim is aware of the scam and cannot be deceived (thus making the completion of fraud against that specific person impossible from their perspective), an attempt to defraud them can still constitute punishable attempted fraud if the defendant's deceptive actions, when viewed objectively, would have been capable of deceiving an ordinary, unsuspecting person. This approach focuses on the inherent dangerousness and antisocial nature of the defendant's deceptive conduct itself, rather than solely on the (unknowable to the defendant) state of mind of the specific target in a sting operation. This ruling is consistent with a "concrete danger" type of analysis.

Conclusion

Japanese criminal law carefully distinguishes between punishable criminal attempts, where an offender's actions pose a genuine danger of accomplishing a crime, and non-punishable "impossible attempts" (funōhan), where the intended crime could never have been completed due to the means, object, or circumstances. While historical precedents sometimes relied on more rigid distinctions like "absolute" versus "relative" impossibility, the Supreme Court's 1976 decision in the defective bomb case marked an important evolution. It championed a "legal evaluation of danger," a more nuanced standard that considers not only the objective physical facts but also the perceptions of an ordinary person and the defendant's own beliefs concerning the efficacy and dangerousness of their actions.

This approach, which often aligns with the "concrete danger theory," assesses whether an ordinary person, aware of the circumstances known or apparent at the time of the act, would perceive a real risk of the crime's completion. Ultimately, the determination of whether an attempt was merely "impossible" (and thus not culpable in the eyes of attempt law) or "dangerously ineffective" (and thus a punishable attempt) involves a careful, fact-specific judgment. This judgment seeks to balance the defendant's demonstrated criminal intent with the objective potential for their actions to threaten legally protected interests, as viewed through a broader societal and legal lens of what constitutes a cognizable "danger."