Understanding Criminal Penalties in Japan: From Fines to Imprisonment – What are the Options?

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

When a criminal offense is established in Japan, the legal system provides a range of penalties designed to address the wrongdoing, deter future crime, and reflect societal condemnation. For businesses and individuals alike, understanding the types of criminal sanctions available under Japanese law is crucial for appreciating the potential consequences of unlawful conduct. The Japanese Penal Code (刑法, Keihō) categorizes penalties into principal punishments and an accessory punishment, with further mechanisms such as suspended sentences and parole playing a significant role in the actual application of these sanctions.

1. The Philosophical Underpinnings of Punishment in Japan

The purpose of criminal penalties in Japan, as in many modern legal systems, has evolved. While historical debates involved retributive theories (応報刑論, ōhōkeiron – punishment as just deserts) and utilitarian or purposive theories (目的刑論, mokutekikeiron – punishment for a specific societal goal), the contemporary understanding predominantly emphasizes crime prevention (犯罪予防, hanzai yobō). This preventative aim is generally seen to have two facets:

  1. General Prevention (一般予防, ippan yobō): Deterring the general public from committing similar offenses by demonstrating the consequences of criminal behavior through the imposition of penalties.
  2. Special Prevention (特別予防, tokubetsu yobō): Aimed at the specific offender, seeking to deter them from re-offending, often through incapacitation, rehabilitation, or re-education.

Penalties inherently involve a degree of suffering or hardship (害悪性, gaiakusei) for the offender, which is necessary for their deterrent effect. They also carry a strong element of societal condemnation (非難, hinan), signifying that the conduct is unacceptable.

2. Types of Penalties (刑罰の種類, Keibatsu no Shurui)

Article 9 of the Penal Code lists the types of punishments. They are divided into principal punishments, which can be imposed on their own, and an accessory punishment, which can only be added to a principal punishment.

A. Principal Punishments (主刑, Shukei)

The Penal Code establishes a hierarchy for principal punishments (Article 10), from most to least severe:

  1. Death Penalty (死刑, Shikei):
    • This is the ultimate penalty under Japanese law, reserved for extremely heinous crimes, most notably certain types of aggravated homicide (e.g., multiple murders, murder coupled with robbery where extreme cruelty is shown).
    • The method of execution is hanging (絞首, kōshu).
    • Its constitutionality has been repeatedly affirmed by the Supreme Court of Japan (e.g., ruling of March 12, 1948; ruling of April 6, 1955).
  2. Imprisonment with Work (懲役, Chōeki):
    • This is a common form of deprivation of liberty.
    • It can be imposed for an indefinite term (無期, muki) or a definite term (有期, yūki).
    • A definite term typically ranges from 1 month to 20 years (Article 12, Paragraph 1). However, this can be extended up to 30 years when multiple crimes are aggregated or certain aggravating circumstances apply, or reduced to less than 1 month through mitigation (Article 14).
    • A key feature of Chōeki is the obligation to engage in prescribed work (刑務作業, keimusagyō) within the correctional facility. This work is intended to promote discipline, provide vocational skills, and contribute to the costs of incarceration.
  3. Imprisonment without Work (禁錮, Kinko):
    • This also involves deprivation of liberty and can be for an indefinite or definite term, with the same durational parameters as Chōeki (Article 13, Paragraph 1).
    • The primary distinction from Chōeki is that Kinko does not involve compulsory prison labor, though inmates may volunteer for work.
    • It is typically prescribed for offenses resulting from negligence (e.g., some forms of negligent homicide) or for certain political offenses where the stigma of forced labor is considered inappropriate.
  4. Fine (罰金, Bakkin):
    • A monetary penalty, generally set at 10,000 yen or more (Article 15). The maximum amount for a specific offense is usually stipulated in the statute defining that crime. Fines can be reduced below 10,000 yen through mitigation.
    • Fines are a common penalty for a wide range of offenses, including many economic crimes and regulatory violations. Corporations are typically subject to fines when held criminally liable under dual punishment provisions (Ryōbatsu Kitei).
    • Workhouse Detention (労役場留置, Rōekijō Ryūchi): If an individual is unable to pay a fine in full, Article 18 of the Penal Code provides for their detention in a workhouse for a period determined by the court at the time of sentencing, corresponding to the unpaid amount. This is a form of substitute imprisonment.
  5. Misdemeanor Imprisonment without Work / Detention (拘留, Kōryū):
    • A short-term deprivation of liberty, for a period of not less than 1 day and less than 30 days (Article 16).
    • It is imposed for very minor offenses and does not involve compulsory labor.
  6. Minor Fine (科料, Karyō):
    • A minor monetary penalty, ranging from 1,000 yen to less than 10,000 yen (Article 17).
    • This is prescribed for the least serious infractions. Non-payment can also lead to workhouse detention.

B. Accessory Punishment (付加刑, Fukakei)

There is one primary type of accessory punishment, which can only be imposed in addition to a principal punishment:

  1. Confiscation (没収, Bosshū) - Article 19:
    • This involves depriving the offender of ownership of certain property related to the crime and transferring it to the national treasury. Its purpose is to prevent offenders from profiting from their crimes and to remove items that facilitate criminal activity.
    • Objects of Confiscation include:
      • Property that constituted the criminal act itself (e.g., counterfeit currency used in uttering).
      • Property used or intended to be used in the commission of the crime (e.g., a weapon used in an assault, a vehicle used to transport contraband).
      • Property produced by or through the criminal act (e.g., forged documents created by the offender).
      • Property acquired through the criminal act (e.g., stolen goods).
      • Property received as a reward for the criminal act.
      • Property obtained in exchange for any of the above (proceeds of crime).
    • Limitations: Confiscation is generally permissible only if the property belongs to the offender (including accomplices). However, if property belonging to a third party was acquired by that third party after the crime with knowledge of its illicit connection, it may still be confiscated (Article 19, Paragraph 2).
    • Collection of Equivalent Value (追徴, Tsuichō) - Article 19-2: If property subject to confiscation (specifically, property produced by, acquired through, received as a reward for, or obtained as proceeds of crime) cannot be physically confiscated (e.g., it has been consumed, destroyed, or transferred to an innocent third party), its monetary value may be collected from the offender. (Note: For certain crimes like bribery, this collection becomes mandatory under specific provisions like Article 197-5).

3. Mitigating the Severity: Suspended Sentences and Parole

Japanese law provides mechanisms for mitigating the actual imposition or duration of sentences, reflecting considerations of rehabilitation and social reintegration.

A. Suspension of Execution of Sentence (刑の執行猶予, Kei no Shikkō Yūyo)

Article 25 of the Penal Code allows courts to suspend the execution of certain sentences.

  • Eligibility: Primarily for offenders sentenced to imprisonment (with or without work) for not more than 3 years or a fine of not more than 500,000 yen, who either have no prior sentence of imprisonment or have not been sentenced to imprisonment within five years of completing a previous sentence or being exempted from its execution. Even those with a prior suspended sentence can receive another one for a sentence of 1 year or less if there are "especially extenuating circumstances," unless they were on probation for the prior offense and committed the new crime during that probation period.
  • Conditions: The suspension is granted based on the overall "circumstances" (jōjō), which include factors like the nature of the crime, the offender's background, remorse, and efforts at restitution.
  • Suspension Period: The court specifies a period of suspension, ranging from 1 to 5 years.
  • Probation (保護観察, Hogo Kansatsu): During the suspension period, the court may place the offender under probation (Article 25-2). For those receiving a second suspended sentence, probation is mandatory.
  • Effect of Successful Completion: If the offender completes the suspension period without revocation (which can occur if they commit another crime or violate conditions), the original pronouncement of the sentence loses its legal effect (Article 27). This means the conviction effectively disappears from their formal criminal record for many legal purposes.
  • Partial Suspension of Sentence (刑の一部執行猶予, Kei no Ichibu Shikkō Yūyo): Recent reforms have introduced a system for partially suspending a sentence of imprisonment (Article 27-2 et seq.), where the offender serves an initial portion of the sentence and the remainder is suspended, often with conditions like probation. This aims to combine a period of incarceration with a supervised transition back into society.

B. Parole (仮釈放, Kari-shakuhō)

For those serving sentences of imprisonment (with or without work), Article 28 of the Penal Code allows for parole.

  • Eligibility: An inmate may be paroled if they show "genuine reformation" (kaishun no jō). This requires serving at least one-third of a definite term sentence or at least ten years of an indefinite (life) term sentence.
  • Decision-Making: Parole is granted by an administrative body, the Regional Parole Board (地方更生保護委員会, Chihō Kōsei Hogo Iinkai), not by the courts.
  • Supervision: Parolees are typically placed under the supervision of a probation officer.

A similar system of provisional release (kari-shutsuden) exists for those in short-term detention (kōryū) or workhouse detention (Article 30).

4. The Sentencing Process: From Statutory to Pronounced Penalty

The final sentence imposed by a court is the result of a multi-step process:

  1. Statutory Penalty (法定刑, Hōteikei): The range of penalties prescribed by the statute defining the specific crime.
  2. Adjustments for Aggravation and Mitigation: Various legal rules can adjust this statutory range. Article 72 of the Penal Code specifies the order of application:
    • Recidivism aggravation (再犯加重, saihan kajū - Articles 56, 57).
    • Statutory grounds for reduction (e.g., for attempt, voluntary discontinuation, diminished capacity).
    • Adjustments for aggregate crimes (heigōzai, see previous article).
    • Discretionary reduction by the court (酌量減軽, shakuryō genkei - Article 66), where judges can reduce the legally adjusted penalty by up to half if there are extenuating circumstances.
  3. Range for Sentencing (処断刑, Shodankei): The legally permissible range of penalties after all statutory aggravations and reductions are applied.
  4. Pronounced Sentence (宣告刑, Senkokukei): The specific sentence (e.g., "imprisonment with work for 3 years") determined by the court within the shodankei, based on all the circumstances of the case and the offender. This is where judicial discretion plays a significant role.

5. Penalties for Corporations

As discussed in a previous article, corporations in Japan are typically held criminally liable through dual punishment provisions (Ryōbatsu Kitei) found in specific regulatory statutes. The penalty imposed on a corporation under these provisions is almost invariably a fine. Other consequences, such as administrative sanctions (e.g., license revocation, business suspension orders), debarment from public contracts, and significant reputational damage, often carry a greater practical impact than the criminal fine itself. The traditional forms of punishment like imprisonment are conceptually inapplicable to legal entities.

6. Noteworthy Aspects of the Japanese Penalty System

  • Judicial Discretion in Sentencing: While statutes define penalty ranges, Japanese judges generally have considerable discretion in determining the precise sentence within those ranges, considering a wide array of factors related to the offense and the offender. There are no formal, binding sentencing guidelines equivalent to those in the U.S. federal system, though judicial practice and sentencing databases reveal certain tendencies.
  • Emphasis on Repentance and Victim Restitution: An offender's genuine remorse, apology to the victim, and efforts to make restitution for harm caused are often significant factors considered by courts, particularly in deciding whether to grant a suspended sentence or in determining the length of a sentence.
  • "Social Sanctions" (Shakaiteki Seisai): Beyond formal legal penalties, individuals convicted of crimes in Japan often face severe informal "social sanctions," such as loss of employment, damage to family reputation, and social ostracism. These informal consequences can be as, or even more, debilitating than the formal legal punishment.

Conclusion

The Japanese system of criminal penalties is a structured framework encompassing a range of sanctions from fines and detention to imprisonment and, in rare cases, the death penalty. Accessory punishments like confiscation aim to strip offenders of illicit gains. Importantly, mechanisms such as suspended sentences and parole provide avenues for mitigating the full force of these penalties, often emphasizing rehabilitation and the offender's potential for reintegration into society. The process from statutory penalty to the final pronounced sentence involves several layers of legal adjustments and judicial discretion, reflecting a system that aims to balance the condemnation of criminal acts with considerations of individual circumstances and the broader goals of crime prevention.