When Can Failing to Act Become a Crime in Japan? Exploring Criminal Liability for Omissions

In most legal systems, criminal liability is typically associated with affirmative, wrongful actions—what one does. However, the question of whether one can be held criminally responsible for what one fails to do is a more complex area of law. Japanese criminal law, while primarily focused on crimes of commission (行為犯, kōi-han or 作為犯, sakui-han), does recognize that an omission (不作為, fusakui) can, under specific circumstances, lead to criminal culpability. This article delves into the concept of criminal omissions in Japan, distinguishing between different types of omission liability and exploring the crucial conditions under which a failure to act can constitute a crime.

The General Rule and Its Exception: Acts vs. Omissions

The fundamental principle of criminal law is that liability stems from a voluntary act. An "act" usually implies a positive exertion of will manifesting in physical conduct. Mere thoughts or a passive state of being, without any action, are not punishable.

A criminal omission (不作為, fusakui), however, is not simply "doing nothing." Legally, it signifies a failure to perform a specific action that was expected or legally required under the circumstances. Because criminalizing a failure to act imposes a positive duty on individuals and potentially infringes on personal liberty to a greater extent than prohibiting harmful actions, liability for omissions is treated as exceptional and is approached with caution.

Japanese criminal law categorizes crimes of omission into two main types: genuine omission crimes and non-genuine (or spurious) omission crimes.

1. Genuine Omission Crimes (真正不作為犯, Shinsei Fusakui Han)

Genuine omission crimes are those where the criminal statute itself explicitly defines the offense in terms of a failure to perform a specific duty. In these cases, the legal duty to act is an integral part of the definition of the crime (the kōsei yōken). The law directly penalizes the inaction.

Examples from the Japanese Penal Code include:

• Crime of Non-Protection by a Person Responsible for Protection (保護責任者不保護罪, hogo sekininsha fuhogo zai) - Article 218: This provision criminalizes the failure of a person who has a legal responsibility to protect an elderly person, a child, a physically or mentally disabled person, or a sick person, to provide the necessary protection for their survival. The crime can also be committed by abandonment (遺棄, iki).
• Crime of Refusal to Leave (不退去罪, futaikyo zai) - Article 130 (latter part): This criminalizes the failure of a person to leave a residence, building, or vessel after being lawfully requested to do so by the person in control of the premises.

In genuine omission crimes, the existence of the duty to act is clearly stipulated by the statute defining the offense. If the person under such a duty fails to perform it without justification, and all other elements of the crime are met, they can be held liable.

2. Non-Genuine (Spurious) Omission Crimes (不真正不作為犯, Fushinsei Fusakui Han)

Non-genuine omission crimes present a more complex and theoretically debated area. These occur when a crime that is typically committed through a positive act (e.g., homicide, arson) is alleged to have been committed through an omission. The statute defining the crime (e.g., "killed a person" for homicide) does not explicitly mention omission as a means of commission.

The core challenge here is to determine under what conditions a failure to act can be considered legally equivalent to the positive act described in the statute, thereby justifying punishment under that statute.

Essential Requirements for Liability in Non-Genuine Omission Crimes

For an omission to give rise to liability for a crime usually committed by commission, several stringent conditions must be met:

A. A Specific Legal Duty to Act (作為義務, Sakui Gimu) Rooted in a "Guarantor Status" (保障人的地位, Hoshōnin-teki Chii)

This is the most critical requirement. The defendant must have been under a specific legal duty to act—typically a duty to prevent the prohibited harm from occurring. This duty arises from what is often termed a "guarantor status" (Hoshōnin-teki Chii), meaning the person stood in a special protective relationship to the legal interest that was harmed, or had a special responsibility concerning the source of danger. The recognized sources of such a duty, and thus guarantor status, include:

1. Statute: Laws may explicitly impose duties to act (e.g., a parent's legal duty to care for their child, specific safety obligations imposed on businesses by industrial safety laws).
2. Contract or Voluntary Undertaking of Care: A legal duty can arise from a contractual agreement to protect a certain interest (e.g., a paid caregiver, a lifeguard). Similarly, voluntarily assuming responsibility for another person's welfare can create such a duty.
3. Prior Conduct (Senkō Kōi) – Creation of a Peril: If a person, through their own prior conduct (even if initially lawful or merely negligent), creates a situation of danger to a legally protected interest, a duty arises to take reasonable steps to prevent that danger from materializing into harm.
   • For instance, Japanese courts have found that a person who negligently starts a fire, or who is the owner/occupier of premises where a fire starts (even if not by their own hand), has a duty to take steps to extinguish it. Failure to do so, with the requisite intent for arson, can lead to liability for arson by omission (e.g., Supreme Court ruling, September 9, 1958; Daishin-in ruling, December 18, 1918; Daishin-in ruling, March 11, 1938 ).
4. Control over a Source of Danger: A person who has control over a dangerous object or situation (e.g., a dangerous animal, a hazardous industrial process) may have a duty to prevent it from causing harm.
5. Close Social Relationships or Community Ties: While less definitively established as a standalone source for all non-genuine omission crimes compared to, for example, Article 218 (Non-Protection), strong familial or communal relationships can sometimes underpin a recognized duty of care.

The existence of such a specific legal duty to act, derived from a recognized guarantor status, is the indispensable foundation for liability in non-genuine omission crimes. General moral obligations to help others are typically not sufficient to ground criminal liability for an omission.

B. Possibility of Performing the Required Act (作為可能性, Sakui Kanōsei)

It must have been physically and psychologically possible for the defendant to perform the required act. If the action was impossible for them under the circumstances, they cannot be blamed for not performing it. The PDF notes that court cases often consider the ease with which the result could have been avoided.

C. Equivalence to Commission (同視可能性, Dōshi Kanōsei / 同価値性, Dōkachisei)

This is a crucial, though somewhat abstract, requirement. The omission, in the context of all circumstances, must be seen as equivalent in its wrongfulness, social dangerousness, and its connection to the resulting harm, to the commission of the crime by a positive physical act. This means that the failure to act must be as culpable and as directly linked to the outcome as if the defendant had actively brought about the result. Without this equivalence, punishing an omission under a statute designed for commission would be an overreach. The PDF author, Atsushi Yamaguchi, emphasizes this "equivalence" as a safeguard against undue expansion of liability and a key element for satisfying the Principle of Legality.

D. Causation (因果関係, Inga Kankei)

As with crimes of commission, a causal link between the omission and the prohibited result must be established. Proving causation in omission cases can be complex because it involves a hypothetical inquiry: would the harm have been averted if the defendant had performed the required duty?
Japanese courts have grappled with this. The PDF mentions a Supreme Court ruling of December 15, 1989 (Heisei 1), where a person died from a drug overdose after being left unattended. The court considered whether prompt medical attention (the omitted act) would have saved the victim. In that case, it was found that there was a very high probability ("8 or 9 times out of 10") of survival if aid had been sought, and that "salvation was certain beyond a reasonable doubt." This indicates a high threshold for establishing causation for omissions leading to serious results like death. The focus is on whether the omission allowed a pre-existing danger (that the defendant had a duty to counter) to materialize into the prohibited harm.

The Principle of Legality and Non-Genuine Omission Crimes

A significant debate surrounds whether punishing non-genuine omission crimes is compatible with the Principle of Legality (Zai Kei Hōtei Shugi), particularly its demand for clarity and that crimes be statutorily defined. Critics argue that if a statute defines a crime using active verbs (e.g., "kills," "sets fire to"), applying it to an omission amounts to an impermissible analogical interpretation.
The prevailing view in Japan, however, including that of Professor Yamaguchi, is that it is not necessarily a violation if the statutory definition does not inherently restrict the means of commission to positive acts alone. For instance, "killed a person" can encompass causing death by failing to provide food just as it can by active stabbing, provided the stringent requirements for non-genuine omission liability (especially the legal duty to act and equivalence) are met. These requirements act as crucial filters to prevent an overly broad application.

Case Law Examples of Non-Genuine Omission Crimes

Japanese courts have recognized non-genuine omission crimes in various contexts:

• Arson by Omission: As mentioned, cases involve failing to extinguish a fire that one started (even accidentally) or for which one has a special responsibility (e.g., as an occupier or due to prior hazardous conduct). The Supreme Court ruling of September 9, 1958, notably held that an "intent to utilize the existing fire" (a subjective element previously thought important by some older cases) was not necessary for arson by omission if the other elements, including the duty to act, were present.
• Homicide/Injury by Omission:
  • Failure to provide sustenance or care: Cases where individuals with a duty to care (e.g., for infants or dependents) failed to provide food or necessary medical attention, leading to death or injury. (e.g., Daishin-in ruling, February 10, 1915; Nagoya District Court, Okazaki Branch, May 30, 1968; Fukuoka District Court, Kurume Branch, March 8, 1971 ).
  • Failure to act after creating a dangerous medical situation: The Shakujii Treatment Homicide Case (Supreme Court ruling, July 4, 2005) involved a patient who died after being discharged from a hospital and then allegedly neglected by those entrusted with her care by the discharging doctor. The court affirmed the conviction of the person entrusted with care for homicide by omission, finding a duty to act arose from having the patient's care "entirely entrusted" to them after the hospital created a specific danger to her life by discharging her.
  • Abandonment in dangerous circumstances: Leaving a helpless person in a situation where their life is endangered (e.g., Maebashi District Court, Takasaki Branch, September 17, 1971 – abandoning a person with walking difficulties in a remote, cold mountainous area).
  • Hit-and-run scenarios: While road traffic laws have specific provisions, a driver who causes an accident and then fails to aid an injured victim, leading to their death, could potentially face homicide by omission charges if a clear duty to act and causation are established (e.g., Tokyo District Court, September 30, 1965 ).

Implications for Businesses in Japan

The concept of criminal liability for omissions, especially non-genuine omissions, has significant implications for businesses:

• Statutory Duties to Act: Many laws impose positive obligations on businesses, such as ensuring workplace safety (労働安全衛生法, Rōdō Anzen Eisei-hō - Industrial Safety and Health Act), preventing environmental pollution, or complying with product safety standards. Failure to adhere to these statutory duties can lead to direct liability (often genuine omission crimes or administrative sanctions), and in severe cases where harm results, could form the basis of a legal duty to act for non-genuine omission crimes under the Penal Code.
• Responsibilities from Undertakings: When a company contractually undertakes specific responsibilities (e.g., for security, maintenance, or care), this can create a legal duty to act. Failure to perform these duties, leading to harm, could result in criminal liability for omission.
• Prior Conduct Creating Peril: A company's operations (e.g., manufacturing processes, construction projects, service delivery) can sometimes create risks. If such risks are created, the company (and its responsible managers) may have a subsequent duty to take active steps to prevent those risks from causing harm. A failure to do so could be construed as a culpable omission.
• Internal Protocols and Emergency Response: Clear internal protocols for identifying risks, responding to emergencies, and ensuring that legally mandated actions are taken are crucial. This includes systems for reporting hazards and ensuring that individuals with the authority and capacity to act do so.
• Supervisory and Managerial Liability: While a corporation itself might be liable under Ryōbatsu Kitei, individual managers or supervisors could also face liability for non-genuine omissions if they had a personal legal duty to act (e.g., a duty to ensure safety measures were implemented) and their failure to do so led to a criminal outcome. This requires careful delineation of roles and responsibilities.

In conclusion, while criminal liability for simply "doing nothing" is not the norm, Japanese law provides clear avenues for holding individuals and, by extension, entities accountable for culpable failures to act when a specific legal duty to intervene exists and other stringent conditions are met. For businesses, this underscores the importance of not only refraining from prohibited actions but also diligently fulfilling positive legal obligations and taking proactive steps to prevent harm arising from their operations or undertakings. Awareness of what constitutes a "guarantor status" and the corresponding duties to act is essential for effective risk management and legal compliance in Japan.