What Constitutes "Voluntary Discontinuation" (Chushi-han) of a Crime in Japan and How Can It Mitigate Punishment?

In the landscape of criminal law, an attempt to commit a crime is often punishable, albeit typically less severely than a consummated offense. However, Japanese criminal law provides a unique and significant avenue for mitigation if an individual, having already embarked on a criminal course of action, voluntarily pulls back and prevents the crime from being completed. This doctrine is known as Chūshi-han (中止犯), meaning "discontinued crime" or "voluntarily discontinued attempt," and is stipulated in the proviso to Article 43 of the Penal Code. Unlike ordinary (frustrated) attempts where a reduction in punishment is discretionary, for a Chūshi-han, the law mandates that the "punishment shall be reduced or remitted." This "golden bridge" offered to offenders underscores a strong policy interest in encouraging desistance from criminal activity.

1. The Legal Framework: Penal Code Article 43, Proviso

Article 43 of the Japanese Penal Code primarily defines a criminal attempt: "A person who commences the commission of a crime but does not consummate it is an attempted offender." The crucial proviso then adds: "However, when a person who has commenced the commission of a crime discontinues the act of their own will or prevents its consummation, the punishment shall be reduced or remitted."

This mandatory reduction or remission (which can mean a complete excusal from punishment) sets Chūshi-han apart from an ordinary frustrated attempt (障害未遂, shōgai misui), where the crime is not completed due to external obstacles or the actor's own incompetence, and for which any reduction in sentence is at the discretion of the court.

Underlying Rationale for Special Treatment

The special treatment afforded to Chūshi-han is generally understood to stem from a combination of factors:

• Policy Incentive (政策説, Seisakusetsu): Primarily, it serves as a strong policy incentive. By offering a significant legal benefit, the law encourages individuals who have already crossed the threshold of a criminal attempt to abandon their criminal enterprise and, importantly, to take steps to prevent the harm they set in motion.
• Reduced Illegality (違法減少説, Ihō Genshō Setsu): The offender's positive actions in discontinuing the crime or preventing its consummation effectively eliminate or significantly reduce the danger to the legal interest that their initial actions had created.
• Reduced Culpability (責任減少説, Sekinin Genshō Setsu): The voluntary decision to desist and prevent harm can be seen as reflecting a diminished criminal resolve or a return to law-abiding behavior, thus lessening the actor's personal blameworthiness.
  Many legal scholars view it as a policy-driven rule that finds its justification in these considerations of reduced societal danger and individual culpability.

2. Core Requirement 1: "Discontinuing the Crime" (犯罪を中止した, Hanzai o Chūshi Shita)

For Chūshi-han to apply, the offender must have effectively "discontinued the crime" in a way that leads to its non-consummation. This involves both objective actions (or inactions) and a corresponding subjective awareness.

A. The Objective Element: Eliminating the Danger of Consummation

The offender’s conduct must result in the elimination of the concrete danger that their criminal attempt had brought about. The nature of the required conduct depends on the stage of the attempt and the type of danger created:

1. Discontinuation During Ongoing Criminal Acts (Chakushu Chūshi - Discontinuation During Execution):
   If the crime is still in the process of being executed by the offender, and its consummation depends on the continuation of their acts (e.g., an ongoing physical assault, the process of picking a lock), simply ceasing these further criminal acts can be sufficient to constitute discontinuation. This also applies if an initial act towards consummation failed (e.g., a shot missed) but further acts to complete the crime are still possible, and the offender refrains from making these further attempts. The key is that no independent causal chain leading to consummation has been irreversibly set in motion by the acts already performed.
2. Discontinuation Involving Active Prevention (Jikkō Chūshi - Discontinuation of the Execution/Result by Preventing Consummation):
   If the offender's initial actions have already created an independent and ongoing danger that could lead to the consummation of the crime without further input from them (e.g., a victim has been seriously wounded and will die if left untreated, a fire has been set and is spreading, a poison has been administered), mere passive cessation is not enough. In such cases, the offender must take active steps to prevent the consummation of the crime. This might involve:
   • Providing medical aid to an injured victim.
   • Extinguishing a fire they started.
   • Administering an antidote or seeking medical help for a poisoned victim.
   • "Sincere Efforts" (Shinshi na Doryoku): If the offender cannot single-handedly prevent the result, Japanese case law holds that they must make "sincere efforts" to secure its prevention. This could involve, for example, promptly and earnestly seeking effective help from third parties (e.g., calling emergency services, alerting others who can intervene). A notable Daishin-in (Great Court of Cassation) ruling from June 25, 1937, established this principle, and it has been followed in subsequent lower court cases (e.g., Tokyo District Court, March 17, 1962; Osaka High Court, October 17, 1969). While some scholars criticize this "sincere efforts" standard as potentially too demanding, it reflects the law's expectation that the offender takes genuine responsibility for neutralizing the danger they created.

B. Causal Link between Discontinuing Act and Non-Consummation

There's an academic debate about whether the offender's discontinuing act must have been the actual and indispensable cause of the crime's non-consummation. Some argue that if the crime would have failed anyway for unrelated reasons (e.g., the victim was already dead when the offender "sincerely tried" to revive them, or the bomb they set was a dud), the offender shouldn't benefit from Chūshi-han. However, the more widely accepted view in Japanese legal scholarship is that as long as the offender makes genuine and "sincere efforts" aimed at preventing consummation based on their understanding of the situation, they can qualify for Chūshi-han, even if, unbeknownst to them, the crime might have been impossible or would have been thwarted by other means anyway. The focus is on the offender's voluntary conduct and manifested will to abandon the criminal path and prevent harm.

C. The Subjective Element: Awareness of Discontinuation

The offender must be aware that they are discontinuing the crime. For cases requiring active prevention (jikkō chūshi), they must also be acting with the aim of preventing the crime's consummation. If non-consummation occurs accidentally, or if the offender ceases their efforts because they mistakenly believe the crime is already complete when it is not, Chūshi-han does not apply. The special mitigation is tied to a conscious decision to retreat from the criminal course.

3. Core Requirement 2: "Of Their Own Will" (自己の意思により, Jiko no Ishi ni Yori) – Voluntariness (Nin'isei)

This is the most critical and often most litigated element of Chūshi-han. The discontinuation of the crime must be voluntary, stemming from the offender's own internal decision, not forced upon them by external circumstances that make it impossible or excessively perilous to continue. This distinguishes a Chūshi-han from a simple frustrated attempt (shōgai misui), where the offender fails due to outside factors.

The "Frank's Formula" and Judicial Interpretation

A common heuristic used in analyzing voluntariness is "Frank's Formula" (from German jurisprudence): Did the offender abandon the criminal enterprise because "I do not want to proceed" (voluntary), or because "I cannot proceed" (involuntary)? Japanese courts effectively apply a similar logic, scrutinizing the reasons for desistance:

• Involuntary Discontinuation (No Chūshi-han):
  • If the offender stops due to an external obstacle that makes completion impossible or extremely difficult (e.g., unexpectedly strong victim resistance, the arrival of police, a tool breaking, an alarm sounding).
  • If the offender desists due to fear of imminent discovery or apprehension that arises from new, external factors making the risk of getting caught suddenly very high (Daishin-in ruling, September 21, 1937).
  • If the offender is overcome by sudden terror or shock that "suppresses their willpower to complete the crime," effectively rendering them psychologically unable to continue, this may be seen as involuntary if it's a reaction to an overwhelming external impediment rather than an internal change of heart (Supreme Court ruling, September 10, 1957; Daishin-in ruling, March 6, 1937 – fear upon seeing copious amounts of blood from the victim).
  • The Tokyo High Court (ruling of August 5, 1964) denied Chūshi-han where an attempted rape was discontinued because the victim's "goosebumps" allegedly diminished the offender's sexual desire, viewing this as an "external circumstance strongly influencing the decision" rather than a purely internal moral reconsideration.
• Voluntary Discontinuation (Chūshi-han Possible):
  • If the offender stops due to internal motivations, such as genuine remorse, pity for the victim, a sudden realization of wrongdoing, or a moral change of heart, even if this internal reflection was triggered by some external event (like a victim's plea), as long as that event did not render consummation practically impossible or overwhelmingly risky.
  • The Fukuoka High Court (ruling of March 6, 1986) found voluntariness where an offender desisted from a murder attempt due to a mixture of shock and remorse, indicating that an external trigger doesn't negate voluntariness if the decision to stop is ultimately an internal one not dictated by insurmountable obstacles.
  • Similarly, the Urawa District Court (ruling of February 27, 1992) found voluntariness where a rape attempt was discontinued due to the victim's earnest pleas, when consummation was still physically possible and the pleas appealed to the offender's conscience rather than creating an insurmountable barrier.

The assessment of voluntariness is highly fact-specific, involving a careful examination of the offender's subjective state as inferred from objective circumstances.

4. Distinguishing Voluntary Discontinuation from Impossible Attempts

What if an offender voluntarily desists from an attempt that was, in fact, an impossible attempt (funō-han) from the outset (e.g., trying to shoot someone with a toy gun, then deciding to stop)? Can they still benefit from Chūshi-han?
Generally, yes. If the offender believed that consummation was possible and that their actions were dangerous, and their decision to desist was genuinely voluntary (and, where applicable, they made sincere efforts to prevent what they perceived as a possible harmful outcome), the policy reasons for Chūshi-han (rewarding a change of heart and desistance from perceived criminality) can still apply. The focus is on their subjective state of mind regarding the potential for harm and their voluntary choice to avert it.

5. Voluntary Discontinuation in Complicity and Preparatory Crimes

A. Complicity Scenarios

The principles of Chūshi-han can apply to individuals involved in complicity (joint principals, instigators, aiders), but the requirements are adapted:

• Joint Principals: If one joint principal voluntarily desists and successfully prevents the consummation of the crime (or makes sincere efforts to do so), they may be eligible for Chūshi-han regarding their own liability. This does not automatically absolve other non-desisting joint principals.
• Instigators and Aiders: An instigator or aider may achieve Chūshi-han if they voluntarily and effectively neutralize their prior contribution (e.g., retracting their instigation and persuading the principal to desist, or retrieving the tools they provided for aiding) and, as a result, the crime is not consummated or is prevented. This requires active steps to undo their complicity.

B. Preparatory Crimes (予備罪, Yobi-zai)

Article 43's Chūshi-han provision directly applies to "attempts," meaning acts after the "commencement of commission." Whether its principles can be extended to the voluntary abandonment of preparatory acts (予備, yobi)—which are independently punishable for some very serious crimes—is a point of debate.

• For policy reasons, many legal scholars argue that the spirit of Chūshi-han, particularly the possibility of a complete remission of punishment, should apply to those who voluntarily desist from a preparatory crime before the main offense is commenced.
• However, the Supreme Court of Japan (ruling of January 20, 1954) has held that Article 43 does not directly apply to preparatory crimes. Any mitigation for desisting from preparation would typically depend on specific provisions within the statute defining the preparatory offense itself (some of which do provide for reduced punishment or remission upon voluntary surrender or effective desistance).

6. Implications for Business and Corporate Conduct

While Chūshi-han is primarily discussed in the context of individual crimes, its underlying principles can have analogous relevance in assessing corporate conduct or the actions of employees within a business:

• Aborting Illegal Corporate Schemes: If a company, through its formal decision-making processes, initiates a plan that would constitute a corporate offense (e.g., a conspiracy to fix prices, preparations for releasing a product known to be dangerously defective) but then, before the crime is consummated or significant harm occurs, voluntarily and effectively terminates the plan, takes active steps to prevent any illegal outcome, and perhaps self-reports, the principles underlying Chūshi-han might influence prosecutorial discretion or sentencing, even if the doctrine doesn't apply directly to the corporation as an entity in the same way it does to an individual. The "sincere efforts" to prevent harm would be key.
• Employee Misconduct and Internal Intervention: If an employee begins to commit an offense against the company (e.g., starts an embezzlement scheme) but then, due to an internal change of heart or perhaps effective intervention by a supervisor who persuades them to stop and reverse their actions before completion, this could be relevant. The supervisor's actions might be seen as facilitating a form of "discontinuation."
• Product Safety and Environmental Compliance: Consider a scenario where a company releases a product and subsequently discovers a serious defect, or realizes an ongoing emission violates environmental standards. If the company, upon discovery and before major harm materializes or before the full extent of a continuous offense period is reached, voluntarily initiates a comprehensive recall, issues public warnings, and takes effective remediation measures, this proactive and preventative conduct, driven by an internal decision to avert further harm, shares the spirit of Chūshi-han. While it might not neatly fit the definition for a crime already considered "attempted" in the strict sense, such responsible corporate behavior is highly likely to be viewed very favorably by regulators and courts, potentially leading to significantly reduced sanctions or even decisions not to prosecute for certain aspects.

Conclusion

The doctrine of Chūshi-han in Japanese criminal law represents a significant policy decision to encourage offenders to turn back from a criminal path even after an attempt has begun. By mandating a reduction or remission of punishment for those who "of their own will" discontinue their criminal act or actively prevent its consummation, the law provides a powerful incentive for desistance. The requirements—particularly genuine voluntariness in abandoning the crime and, where necessary, sincere efforts to neutralize any danger already created—are carefully scrutinized by the courts. While most commonly applied to individual offenders, the principles of rewarding voluntary and effective efforts to prevent criminal harm hold broader relevance for understanding how responsible conduct, even after a misstep, is viewed within the Japanese criminal justice system.