COMMEMORATIVE ISSUE

──The Launched of the LL.M. Program,
Keio University Law School──

No. 1 2023

Keio University Law School

Dean
KITAI, Isao
KEIO ONLINE LAW JOURNAL（KOLJ) is published by
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PREFACEIt is a great pleasure to publish this Commemorative Issue – The Launched of
the LL.M. Program, Keio University Law School – and to write a preface to this Issue. Keio University Law School was established in April 2004 and then has produced a large number of legal professions in Japan. And from April 2017, it launched
a new legal education course as a graduate school in Japan, exactly a master’s degree
program in Global Legal Practice, it is called the LL.M. program. This program aims
a legal-specific education for legal professions who will hope to get in action in a
global field. Therefore it educates all legal-specific subjects in English. This LL.M.
program allows students to obtain an LL.M. degree within a single year of instruction. We envisage such global legal professions to be not only Japanese but also
non-Japanese, who transcend the parochial national interests of the country to which
they belong and, from a truly global perspective, find sustainable common interestsand strive to realize them.
The LL.M. program of Keio University Law School focuses on practical, skillsbased training, not only via courses specially designed for skill acquisition but
throughout its comprehensive curriculum. Internships at a wide range of law firms,
companies, and international organizations allow students to apply, add to theirknowledge, and contact potential employers. Keio University Law School has tried tocultivate a new field for legal professions who wish to participate in a global range ofvisions.
This Commemorative Issue should congratulate Keio University Law School on
establishing the new LL.M. program. It contains three articles which are written byprofessors at Keio University Law School. These articles were originally written in
Japanese and are now translated into English. They had a lot of influence on the legal-scientific society in Japan, and now we hope that they will have great impacts on
the legal-scientific society in the world. It is worth publishing these articles in English
at the time of launching the LL.M. program at Keio University Law School.
We would like to express our gratitude to the Faculty of Law at Keio University,

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KEIO ONLINE LAW JOURNAL, No. 1, 2023

because it has published a series of Keio Law Review and now allows us to publish
our articles in this Commemorative Issue as No. 1 of Keio Online Law Journal.
April 2023
KITAI, Isao
Dean of Keio University Law School
MATSUO, Hiroshi
Vice Dean of Keio University Law School and
Director of LL.M. Program

﻿

iii

CONTENTS
Preface

KITAI, Isao
MATSUO, HiroshiiLegal Code & General Principles of Law:
Layered Structure of Legal Order & Dynamic
Formation of Law
KATAYAMA, Naoya

1

Toward Diachronic Self-Government:
Public Records and Popular Sovereignty in Japan
YOKODAIDO, Satoshi

15

Abandonment of Crime:
Act of Abandonment and Voluntary Action

WADA, Toshinori

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CONTRIBUTORS TO THIS ISSUEKATAYAMA, Naoya: Professor of Civil Law, Keio University Law School
YOKODAIDO, Satoshi: Professor of Constitutional Law, Keio University Law School
WADA, Toshinori: Professor of Criminal Law, The University of Tokyo Graduate Schools
for Law and Politics

Legal Code & General Principles of Law

1Legal Code & General Principles of Law:
Layered Structure of Legal Order & Dynamic
Formation of Law
KATAYAMA, Naoya *CONTENTSI
Introduction – Re-codification & “General Principles of Law”
II
“Principles” & “Rules”
III “Guiding Principles of Law” & “Corrective Principles of Law”
IV Legal Epistemology & “Legal Principles”
V
Tolerance of Exceptions in “Legal Rules”
VI “Legal Fiction” as Extension of Rules of Law
VII “Special Circumstances” as Contraction of Legal Rules
VIII Conclusion – Layered Structure of Legal Order & Dynamic Formation of
Law

I Introduction – Re-codification & “General Principles of Law”
Amid a Europe-centered trend of re-codification, there is a growing effort focusedaround contract law to restate “general principles of law”1, a movement that is expanding to
all fields of private law in general2.
In the 2009 Outline Edition of the “Draft Common Frame of Reference (DCFR),” anacademic landmark of the modern era developed and produced by study groups on European private law, an explanation of “Principles” precedes the “Model Rules.” There, the approach adopted is not a prescriptive one, but a descriptive methodology wherein the four
fundamental principles of freedom, security, justice and efficiency are explained in depth.3* Professor of Civil Law, Keio University Law School

1 Bénédicte FAUVARQUE-COSSON / Denis MAZEAUD/Guillaume WICKER / Jean-Baptiste RACINE/ Laura SAUTONIE-LAGUIONIE / Frédéric BUJOLI, Principes contractuels communs: Projet de cadre
commun de référence, Société de législation comparée, titre I: Principes directeurs du droit européen ducontrat, Paris 2008.
2 Axel METZGER (translated by Kunihiro NAKATA), “General Principles of Law in European Private
Law”; Yoshikazu KAWASUMI et al., “Present of European Private Law & Japan’s Tasks” (Nippon Hyoron
Sha Co., 2011), p.383 et seq.; etc.
3 Christian von BAR et al. (translation supervised by Atsumi KUBOTA et al.), “Principles, Definitions& Model Rules of European Private Law / Draft Common Frame of Reference (DCFR)” (Horitsu-Bunka Sha
Co., 2013), p.43 et seq.

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II “Principles” & “Rules”
So, what are “general principles of law” in the first place? It is difficult to define them,
but let us call them a proposition under which principles such as “favor contractus (priority
of contract execution)”, “suitability”, “apparence (appearance)” do not immediately have theeffect of strict legal rules (procedural rules of the court, in particular) but underlie legal rules
and function to form new rules through their interpretation, or control the application of suchrules. In the laws of jurisdictions heavily influenced by Roman law and common law, suchas French Law and German Law, Latin expressions including “contra non valentem agere
non currit praescriptio” (a prescription does not run against a person who is unable to act‹to begin the litigation process›) and “fraus omnia corrumpit (fraud vitiates everything)”
have been preserved as legal maxims.4 The “Fundamental Principles” stipulated in Article 1

of Japan’s Civil Code (namely, the principles of public welfare, good faith, and no abuse ofrights) represent the very “general principles of law” laid down as law in the statutory provisions.
What, then, distinguishes “principles” from the “rules” stipulated in statutes, such as
the rule in Article 709 of the Civil Code (“Damages in Torts”)? Matter of Principle by Ronald Dwokin and the Germna concept of “bewegliches System (flexible system)” are prominent theories on this relationship between principles and rules.5
Let us compare “legal principles” with “legal rules”. Rules are comprised of legal requirements and legal effects. In order to effect a certain outcome, all legal requirements need
to be satisfied. For example, Article 709 of the Civil Code stipulates that the right to seek
compensation for damages is only available where the following legal requirements are
satisfied: an “intentional or negligent” act, “infringement of a right or legally protected interest” (illegality), “damage” and “causation”. All four of these requirements must be satisfied; the provision cannot be interpreted to mean this right may arise where, for example, therequirement of illegality has been sufficiently met to such an extent (i.e. the infringement of
a right or legally protected interest was very serious) so as to render the requirement of an
4 As to “general principles of law (principes généraux du droit)” in France, cf. ex. Jean BOULANGER,
Principes généraux du droit et droit positif, in Le droit privé français au milieu du XX e siècle, études offertes à George Ripert, t. I, Paris 1950, p.51 et seq.; Jean-Louis BERGEL, Théorie générale du droit, 4e éd.,Paris 2003, no 93 et seq. As reference for classifying and analysing “principles (principes)” as a source oflaw, cf. Patrick MORVAN, Le principe de droit privé, Ed., Panthéon-Assas, Paris 1999.
5 Cf. Hiroshi KAMEMOTO, “Rules & Principles in Law” & “Legal Thinking” (Yuhikaku PublishingCo., 2006), p.125 et seq.; Hitohiko HIRANO, “Interpretation of Law & Weighing of Principles,” Ritsumeikan Law Review No. 343 (2012), p.1449 et seq.; Takao KATSURAGI, “Legal Philosophy in Free Society” (Koubundou Publishers Inc., 1990), p.98 et seq.; Keizo YAMAMOTO, “Inquest into Theory of Flexible
System in Civil Code,” Law Annals (Kyoto University), Nos. 1-3, Vol. 138 (1995), p.208 et seq.; Kunihiko
OKUBO, “A Thought on Relations between Theory of Dynamic System & Theory of Principles,” Kobe
Gakuin Law & Politics Review, No. 2, Vol. 31 (2001), p.189 et seq.; etc. As for relations between the Principles of European Tort Law and the “dynamic system theory,” refer to Shuhei YAMAMOTO, “Structure &Method of Legal Assessment in Tort Law – Taking Cue from Principles of European Tort Law (PETL) &Dynamic System Theory (1)~(5, Finale),” Law Annals, Nos. 2-6, Vol. 169 (2011).

Legal Code & General Principles of Law

3intentional or negligent act unnecessary or insufficient (relative weighing of requirements6).
In other words, an “all or nothing” approach is adopted.
Against the above theory of rules, we may compatatively describe principles of law as
a framework for balancing various elements. Walter Wilburg, a leading theorist of the “flexible system” approach, posits this framework as a concept that explains and justifies legal
effects in a given legal sphere as the result of combined effects of “Elemente (elements)”.7
Put abstractly, as Franz Bydlinski explains, instead of an “all or nothing” structure, principles follow a “Mehr-oder-weniger-Structur (more-or-less structure)” and are “komparativ(comparative)” in character. As such, when applied to situations with various levels of outcomes, such as the calculation of damages, they produce an “um so mehr (even more)” outcome, and when applied to situations in which levels of outcome are not available, such as
the determination of the nullity of a contract, they produce an “um so eher (even better)”outcome.8
Allow me explain using a simple example. A notable principle is the theory of “appearance (trust in appearance)”.9 In Japan, there are provisions (rules of law), such as Articles
110, 192 and 478 of the Civil Code, which protect the apparent trust placed by a third party
in appearance. Underlying these provisions is the “legal principle” called the theory of appearance. Based on the presence of apparent rights such as to occupancy and registration,
two elements are compared: the liability of the right holder involved in the creation of theapparent right, and the trust placed by a third party in the apparent right. If a weighing exercise results in the latter’s favor, the third party is permitted to acquire the right. Thus, theprinciple arising from the theory of appearance is simply a framework for weighing two
conflicting elements; the principle itself does not immediately give rise to a certain legal
effect. However, this “legal principle” of appearance makes it possible to lay the groundworkfor the creation of a new “legal rule” through its interpretation, for example, the rule on theapplication by analogy stipulated in Article 94, Paragraph 2, of the Civil Code.10
6 The “correlation theory” weighs aspects of two elements – i.e., the act of infringing interests and thenature of the interests infringed. Regarding one requirement (that of illegality) in a relative manner does notmean the relative comparison of two requirements. The theory is thus narrowly construed as a logical ofinterpretation of “legal rules” but, in substance, it is similar to the flexible judgment of the elements of the“flexible system” theory, addressed below. For the “correlation theory,” refer to Kazuo SHINOMIYA, “A
Thought on ‘Correlation Theory’” in “History & Tasks of Civil Jurisprudence” compiled by Ichiro KATO
(University of Tokyo Press, 1982), p.263 et seq.; Ryohei HAYASHI, “Positioning of Correlation Theory inTort Law” in “Evolution of Civil Code/Trust Law” compiled by Ichiro KATO & Hiroshi MIZUMOTO(Koubundou Publishers Inc., 1986), p.189 et seq.; etc.
7 Cf. YAMAMOTO, op. cit. (*5), p.219 et seq.; OKUBO, op. cit. (*5), p.192 et seq.; etc.
8 Cf. OKUBO, op. cit. (*5), p.194, etc. For the “comparison proposition,” refer to YAMAMOTO, op. cit.
(*5), pp.253-256, etc.
9 It is called the theory of “Rechtsschein” in Germany and the theory of “apparence” in France. Cf.
Ryoyu KITA, “Theory of Superiority of Appearance” (Chikura Publishing Co., 1976), Seiko NISHIYAMA,“System of Apparent Authority Appointment by Mandate in Relation to Doctrine of Apparent Authority in
French Law (1) & (2),” Osaka University of Economics & Law Annals, No. 4 (1980), p.31 et seq., No. 5(1981), p.37 et seq., etc.
10 Cf. Hiroki NAKAYA, “Function of Article 94, Civil Code,” Points of Contention over Civil Code(2007), p.65 et seq.; Hideaki KANDA, “Limits to Analogical Application of Article 94, Paragraph 2, Civil

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The four fundamental principles of freedom, security, justice, and efficiency11 as provided by the Draft Common Frame of Reference of European private law can be understood
to be an extraction of the very elements that constitute “legal principles”. There, it is presumed that these principles may “conflict with one another”. Justice may conflict with security/efficiency (e.g. the statute of limitations), freedom may conflict with justice (e.g. thelaw of contract), there may be conflict between two types of freedoms (e.g. freedom to act
and freedom from discrimination), or there may be conflict between two types of justice(e.g. equal treatment and protection of the weak). These principles sometimes “overlap”.
Accordingly, there are many provisions (legal rules) that can be explained using multiple
principles.12

III “Guiding Principles of Law” & “Corrective Principles of Law”
There are two kinds of “legal principles” or “general principles of law.” Let us turn to
French law for an explanation.
In France, “general principles of law (principes généraux du droit)” are defined as“rules of law (règles du droit)”, which “are not natural laws but regardless of whether they
have taken a statutory form, are applied according to court precedents and have fully general nature”.13 General principles of law are classified into two categories: “guiding principlesof law (principes directeurs du droit)” and “corrective principles of law (principes correcteurs du droit)”. The former is a set of principles effecting social order (ordre social) suchas the principle that one shall not be taken to not know law, the principle of a matter alreadyjudged (res judicata), the principle of equality before the law, and the principle of the
non-retroactivity of law. The latter is a set of principles, including the principle of “fraus
omnia corrumpit (fraud vitiates everything),” the principle of “nemo auditur propriam turpitudinem allegans (no one shall be heard who invokes his own turpitude)”, and the principleof “bonne foi (good faith)”, without which legal solutions (solutions légales) will go against
justice (injustes) or cause inappropriate (inadaptées) situations to arise.14 Therefore, theseprinciples are regarded as constituting a “system of self-defense of law (mécanisme d’autodéfence du droit)” underlying the jurisprudence of the legal system to achieve the ultimate
purposes of law such as moral order, harmonization of various societal relations, and justice.15
Code,” Meiji Law Journal, No. 6, Vol. 80 (2008), p.135 et seq.; etc.
11 Even though four principles are identified, this does not mean all have equal value. “Freedom, security and justice” are objectives in and of themselves, whereas “efficiency” is a means of attaining the objectives and “is more mundane and less fundamental than the others”. But “law is a practical science” and efficiency “underlies a number of the model rules and cannot be fully explained without reference to it”. Cf.
Christian von BAR et al., op. cit. (*3), p.43.
12 von BAR et al., op. cit. (*3), p.44.
13 BERGEL, op. cit. (*4), no 74, p.100; etc.
14 BERGEL, op. cit. (*4), no 86, pp.108-109.
15 Cf. ex. Jacques GHESTIN / Gilles GOUBEAUX, Traité de droit civil, Introduction générale, 4e éd.,

Legal Code & General Principles of Law

5“General principles of law” function as the basis of all legal structures. Therefore,“rules of law (règles du droit) can only be enacted (édicitées) and can only evolve (évoluer)in accordance with general principles (principes généraux)”.16 Ergo, awareness of this ability of principles to change a legal system is crucial. Essentially, general principles are realised and applied to specific cases, which are preserved and established through precedents
to become pillars of other legal structures, contributing to the creation of new legal rules orin other words, effecting the transformation of a legal system17.

IV Legal Epistemology & “Legal Principles”
As highlighted in the above insight, the significance of “legal principles” lies in its
ability to control applications of law through these interaction with “legal rules”, which canlead to the creation of new laws. It is useful to analyse these dynamism from the perspectiveof legal epistemology (épistémologie juridique). This point is described by the Frenchman
François Gény as the following process of “constant regeneration (la constante régénération)” of rules of law:18(1) Acquire one legal provision (un texte) or a combination of provisions (unensembre de textes).
(2) Extract from the provisions one principle (un principe).
(3) Elicit new specific applications (nouvelles applications concrètes) of thisprinciple.
(4) Establish these applications within new rules of law (nouvelles règles dedroit).
Here, we see the process of how “general principles of law” may create legal rules andtransform a legal system. Comparing a principle (un principe) to a tree trunk (le tronc del’arbre), Gény claims that “the trunk produces robust and abundant fruit by stretching resistant roots broadly underground,” an expression through which he (i) refers to the upwards
transition of legal rules to high-level principles, and (ii) suggests that applications of principles enriches the law. According to Gény, “intuition” and “trial and error (tâtonements)” arenecessary for (i), and “logic (logique)” is important for (ii).19

avec Muriel FABRE-MAGNAN, Paris 1994, no 760, p.746; Jean-Louis BERGEL, Méthodologie juridique,
Paris 2001, p.382; Nicolas RONTCHEVSKY, L’effet de l’obligation, Paris 1998, no 119, p.71; etc.
16 BERGEL, op. cit. (*4), no 84, p.106.
17 BERGEL, op. cit. (*4), no 84, p.107.
18 Cf. Francois GÉNY, Méthode d’interprétation et sources en droit privé positif, 2e éd., revue et mise au
courant, t. I, nouveau tirage, Paris 1932, nos 20 et seq., p.41 et seq.; surtout, nos 22 et 23, pp.43-47. V. aussi,
Jean BOULANGER, Principes généraux du droit et droit positif, in Études offertes à G. Ripert, t. I, Paris
1950, no 16, p.63; BERGEL, op. cit. (*4), no 85, pp.107.
19 GÉNY, op. cit. (*18), no 22, p.45.

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V Tolerance of Exceptions in “Legal Rules”
To dynamically comprehend the creation of new laws from the perspective of legal
epistemology, it is necessary to pay attention to the role of “exceptions” to “legal rules” (andto the legal order in general). In France, for example, the academic dissertation titled The
Exception in Private Law (L’exception en droit privé)20 by author Jean-Marc de Moy, presents a model for the “dynamic (dynamique)” comprehension of “the principle-exception relationship (la relation principe/exception)”.21
De Moy defines “an exception” as “all things that permit exclusion of a legal rule which
would ordinarily be applied but which cannot achieve its goal in the certain specific case”.22
An exploration of the relationship between principles and exceptions reveals that a set ofrules (ensemble normatif) contains particular regulations (régulation particuliére) and thatthe set comprises one “principle” and one or more “exceptions”. We can see here the dynamic (dynamique) character of exceptions.23
In any individual case wherein a judge excludes the application of legal rules, one oftwo circumstances are presumed.24
On the one hand, there are those situations where “principles” should not be applied asa matter of form; namely, this is a situation of an “exception” produced by way of legal “fiction”. Specific examples include that of appearance (apparence), simulation (simulation) andpresumption (présemption)25.
On the other hand, there those situations where “principles” should be applied as amatter of form, and the exceptions stem from such principles. Typical examples are those
exceptions from legal rules that result from the existence of “fraud (fraude),” reflected inlegal maxims such as “fraud vitiates everything (fraus omnia corrumpit)” and “fraud constitutes an exceptions to all provision”.26
A function of “exceptions” identified by de Moy is that of their role in adapting theapplication of rules to factual situations (situations due fait) (in some cases, this function
modifies the norms of principles and categorises competing norms into principles and exceptions). According to his analysis, in this way, “exceptions” indirectly realise the ultimate
20 Jean-Marc DE MOY, L’exception en droit privé, Collection du Centre Pierre Kayser, Aix-en-provence2011.

21 DE MOY, op. cit. (*20), nos 726 et seq., p.337 et seq., surtout, no 753. At around the same time, this author
also wrote about a similar dynamic theory (Cf. Naoya KATAYAMA, “Fundamental Theory on Fraudulent
Acts” <Keio University Press, 2011>).
22 DE MOY, op. cit. (*20), no 1, p.17.
23 DE MOY, op. cit. (*20), nos 7-8, p.20.
24 DE MOY, op. cit. (*20), no 547, p.238.
25 DE MOY, op. cit. (*20), no 566, pp.253-254. These are associated with what is done generally by judges, which is the following: determination of the legal characters of facts (qualification des faits), interpretation of rules of law (interprétation des règles juridiques), and a framework concept defined by law (notions-cadres, i.e. the discretionary provisions).
26 DE MOY, op. cit. (*20), nos 388-389, p.175

Legal Code & General Principles of Law

7goal of law (finalité du droit), that is, to adapt norms to effect specific justice (justice concrète). When rules are applied to facts, many of these facts are in “a similar situation (situation analogue)” accounted for by the norms, but often, some of these facts are in “a particular situation (situation particulière)” and the simple application of principles brings about“injustice (injustice).” Here, “exceptions” serve to bridge the gap between justice and injustice, correcting the incompleteness of general rules. If “principles” function to achieve legal
security (sécurité juridique), it may be safely said that “exceptions” function to achieve“equity (équité)”.27
By way of the above analysis, de Moy points out that “the principle-exception relation-

ship (la relation principe/exception)” is not a “static (statique)” relationship, but a “dynam-

ic (dynamique)” one. In accordance with changes in the social climate and the subsequent
standards of morality, what used to be regarded as “principles” can be derogated to “exceptions” and conversely, values once deemed as “exceptions” can acquire the position as “principles”.28
In the following two sections, I will examine in turn “legal fictions” as an example ofthe extension of legal rules, and the “special circumstances” structure as an example of thecontraction of legal rules.

VI “Legal Fiction” as Extension of Rules of Law
In the evaluation of a legal system, the “legal fiction”29 is an important yardstick. Let
us examine as an example the theory of “things” which may be the object of rights.
Japan’s Civil Code provides for “things” in Chapter IV, Part I (General Provisions), andstipulates as a “Definition” (Article 85) the following: the term “Things” as used in thisCode shall mean a tangible thing. A prevailing theory defines “tangible thing” as a “thingthat exists external to human beings and occupies a part of space” or, simply put, it is refers
to liquids, gases and solids (a theory of “tangible things”30). It follows from this that “intangible things” including energy (natural power) such as electricity and light, rights such as theright to claims, intellectual property such as copyrights and patents, and know-how areprecluded from constituting “things” under the Civil Code.
A narrowing of the scope of what may constitute “things”, thus limiting the scope of
possible objects of rights, to tangible things is an approach that can be found in the laws ofcivil law jurisdictions that have adopted the Pandekten system of law, such as German andJapanese law. But this approach is rare in terms of comparative law.
27 DE MOY, op. cit. (*20), nos 625-642, pp.283-290.

28 DE MOY, op. cit. (*20), nos 726 et seq., p.337 et seq.

29 For “legal fiction,” refer to Izutaro SUEHIRO, “Izutaro SUEHIRO (IV) Utility of Fiction (2nd edition)”(Nippon Hyoron Sha Co., 1980); Saburo KURUSU, “Law & Fiction” (University of Tokyo Press, 1999); etc.
SUEHIRO’s “Utility of Fiction” above says in part: “A look at the history of legal development proves that‘fiction’ played the role of a mediator indeed in legal evolution” (p.20).
30 Cf. Hideo HATOYAMA, “Overview of Japanese Civil Code: Supplemented Edition” (Iwanami Shoten,1930), p.239; etc.

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In contrast, from an academic perspective, France’s Civil Code, unlike Roman law, ischaracterised by an approach focused around the concept of “property (les biens)” insteadof “things (res, choses)” in its Book 2 titled “property law (le droit des biens)”. The relevant
provision of the French Civil Code stipulates that “all properties (tous les biens) are movables
or immovables” (Article 516). However, the concept of “movables” is “an open category”
and France has recognised within its definition of “movables” new types of property (intangible goods) created as a result of a developing society, property such as intellectual property, customers (business property), and securities portfolios.31 The concept of “property”
under the French Civil Code is dependant upon a thing’s relationship with “humans” rather
than the identity of the “thing” itself (the object) and bears a similarity to the concept of“rights”.32 Property is something that has “utility” (economic value) for humans and therefore, the distinction between tangible, intangible and collective goods is made in a relative
manner.
In Japan, Dr. Sakae Wagatsuma has argued that “restricting things in law to tangible
things in physics does not suit today’s social and economic climate”. He states, the “inability to consider collective property as things also gives rise to various inconveniences” alongwith the question on energy, asserting that “the notion of things should be expanded to define tangible things in law as those things that may be exclusively controlled under law”.33
An argument gaining steam in recent years claims that “modern society has produced new‘goods’ (such as time and information) not traditionally regarded as the object of rights, so
the Civil Code must provide a theory that responds to such developments”.34
Has the Japanese Civil Code’s limitation of the scope of things to tangible things completely precluded intangible property from becoming the object of rights? A concept thatplays an important role in the answering this question is that of “legal fictions” that serve as
exceptions to rules. The provision in Article 245 of the Penal Code stipulating that “electricity shall be deemed to be property” is widely known. In commercial affairs, there is a needfor business operators, for example, to access a supply of funds by pledging as collateral
fixed assets for business use, including intangible assets offered as collective goods. Given
these needs, since the enactment of the Factory Mortgage Act, the Mining Mortgage Act andthe Railway Mortgage Act in 1905, shortly after the Civil Code was put into place, Japan has
established and expanded various foundation mortgage schemes. Consequently, it has become possible for companies to pledge as collateral tangible and intangible fixed assets or
corporate facilities, offered collectively, to obtain loans. The legal technique used here is the
31 Cf. ex. Pierre VOIRIN, La composition des fortunes modernes au point de vue juridique, in Rev. gén.
droit, 1930, p.103; etc.
32 Cf. Naoya KATAYAMA, “Property -- bien & patrimoine” in “200 Years of French Civil Code” compiled by Ichiro KITAMURA (Yuhikaku Publishing Co., 2006), p.181; etc.
33 Cf. Sakae WAGATSUMA, “General Provisions, Civil Code (Lecture I on Civil Code): New Edition”(Iwanami Shoten, 1965), p.202.
34 Cf. Kazuo SHINOMIYA & Yoshihisa NOMI, “General Provisions, Civil Code [8th Edition]” (Koubundou Publishers Inc., 2010), p.157. Also refer to “Collective Comprehension of Property &Law of Property,”
NBL No. 1030 (2014), p.46 et seq.

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9one of “foundations,”35 which is by its nature a “legal fiction”.
Take the Factory Mortgage Act as an example. Extending the concept of added andintegrated things (Article 370, the Civil Code), the law provides that a factory mortgage
covers “machinery, tools and other goods for factory use installed on the land (building)”(Article 2, Paragraphs 1 and 2). Furthermore, the law recognises the establishment of “foundations” (Article 8 and thereafter). A factory foundation can be established (Article 11) using
all or part of the land and the following equipments and rights related to the factory (Item 1);
machinery, tools, electric poles, electric cables, rails and other accessories (Item 2); surface
rights (Item 3); leasehold rights to things (Item 4); industrial property rights (Item 5); andthe right to use a dam (Item 6). Article 14, Paragraph 1, stipulates that factory foundations
are deemed immovables. Using this “fiction,” a factory foundation may be regarded as athing (immovable) to be registered in a registry (Article 19), allowing it to become the objectof industrial property rights and mortgages (Paragraph 2). By registering the ownership ofa factory foundation, things constituting part of the foundation (those that belong to thefactory foundation) are barred from disposition (Articles 29, 33).36 Thus, the use of factory
foundations is a legal technique that conceptualises the tangible and intangible fixed assets(profitmaking apparatus) necessary for a business’ operation into a single thing (immovable)
by way of “fiction”.37
On the other hand, a railway foundation established pursuant to the Railway Mortgage
Act is comprised of tracks (and related property such as land for railways and tools andmachinery belonging to it) (Article 3, Item 1), factories, warehouses, etc. and other buildings
and premises required for construction work and transportation, as well as tools and machinery belonging to them (Item 2), surface rights, registered leasehold rights, and easements(Item 5), and rolling stock (and tools and machinery belonging to it) (Item 6). Such a foundation is not an immovable but is deemed a single thing (Article 2, Paragraph 3), allowing it
to become the object of industrial property rights and mortgages (Article 4, Paragraph 4).
Public notice is given through registration (Article 27, Paragraph 1). Unlike a factory foundation, which is established by integrating a factory and its premises, both valued at a highprice, into an immovable, a railway foundation is characterised by tracks of a higher monetary value than buildings and their premises, and by treatment of the various goods necessary for railway operation as one integrated thing.38
35 Cf. Koji OMI, “Evolution of Japanese Civil Code (2): Special Legislation - Mortgage Laws” in “100Years of Civil Code (I) General Observation” compiled by Toshio HIRONAKA & Eiichi HOSHINO(Yuhikaku Publishing Co., 1998), p.184 et seq.; Kenzaburo KOZUMI, “Foundation Mortgage System &German Legal System,” NBL No. 847 (2006), p.8 et seq.; etc.
36 Cf. Eiji SAKAI, “Commentary on Special Laws: Factory Mortgage Law” (Dai-ichi Hoki Co., 1988),
p.86 et seq.; etc.
37 A similar character can be found in other foundations such as: “mining foundations” (Article 3, Mining Mortgage Act), “fisheries foundations” (Article 6, Fisheries Foundation Mortgage Act), “port transportbusiness foundations” (Article 26, Port Transportation Business Act), “road transport business foundations”(Article 19, Road Transport Business Mortgage Act) and “tourism facilities foundations” (Article 11, Tourism Facilities Foundation Mortgage Act).
38 Similarly, there are “railway track foundations” (Article 1, Railway Track Mortgage Act, 1909 Law No.

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As described above, “foundations” governed by the various mortgage laws are classified roughly into two groups: foundations that are immovables and foundations set up as“things”.39 In either case, it represents a mass of tangible and intangible goods (profitmaking
apparatuses) necessary for business operations, but as it is only deemed a thing through legal
fiction, it thus maintains economic integrity.
From the perspective of legal epistemology, it may be appropriate to claim that the extensive use of exceptions by application of “legal fictions” suggests the need for a review ofthe legal rules through legal principles and, eventually, for the reconstitution of a legal system through re-codification.

VII “Special Circumstances” as Contraction of Legal Rules
There are many means of excluding the role of legal rules, which are underpinned by“principles”, when they should be applied. On the one hand, there are methods to prevent theoccurrence of legal effects presumed by legal rules, such as by employing general corrective
principles of law (such as the principles of good faith and no abuse of rights) or the theory of“fraud (fraude)”, even in cases where a certain legal rule should be applied as a matter ofform. On the other hand, in Japan, there exists a judicial doctrine of “special circumstances”.
We shall examine this here.
An example of the adoption of the “special circumstances” structure in a judicial rulingis an old famous precedent dubbed the “too bad, too bad” verdict (precedent of the Court ofCassation of May 30, 1927) issued by the Supreme Court’s pre-war predecessor, the Courtof Cassation, regarding the inheritance of consolation money.40 The first Supreme Court caseto recognise “special circumstances” was the top court’s ruling of September 25, 195341,
which restricted the termination of a leasehold contract on the basis of assignment/subleas28) to which the Railway Mortgage Act is applied mutatis mutandis, and “canal foundations” (Article 13,
Canal Traffic Act) to which the 1909 law is applied mutatis mutandis.
39 Cf. Koji OMI, op. cit. (*35), p.191; etc.
40 Cf. Court of Cassation precedent of May 30, 1927, in Law Newspaper No. 2702, p.5 (more precisely,
the pre-war Supreme Court ruling overturned an original verdict on the basis of the following reasoning:“As described before, the original decision recognised the fact that the victim Hirokichi died shouting “toobad, too bad” and appeared to have judged that this did not represent expression of his intention to claim
consolation money, and ruled that the above words did not show his intention to claim consolation money
against the assailant unless there were special circumstances in which, for example, the victim regretted his
fault stemming from such words. In short, the appeal is illegal, lacking justifiable reasons, and this court
does not see any reason to hand down its own decision directly”.)
41 Supreme Court precedent of September 25, 1953, Minshu Vol. 7, No. 9, p.979. For the “act of disloyalty” theory and the “theory of trust relationship,” refer to Sumitaka HARADA, “Article 612, Civil Code(Unauthorized Assignment/Subleasing of Leasehold)” in “100 Years of Civil Code (III) Individual Observations (2) Claims” compiled by Toshio HIRONAKA & Eiichi HOSHINO (Yuhikaku Publishing Co., 1998),
p.397 et seq.; Tomohiro YOSHIMASA, “Function & Outlook of Theory of Destruction of Trust Relationship,” NBL No. 983 (2012), p.40 et seq.; etc.

Legal Code & General Principles of Law

11

ing without permission and established the so-called “act of disloyalty” theory. It was heldthat “even where a lessee allows a third party to make use of or take the profit generated bya leased thing without obtaining the approval of the lessor, the right to terminate the contract
based on this Article (612) does not arise where there are special circumstances that makes
the lessee’s act short of an act of disloyalty.” In other words, a leasehold is a continuous
contract in the long term concluded by a person (lessee) and is of a strictly personal nature(intuitu personae). Therefore, the lessee’s assignment/subleasing to a third party without
permission constitutes an “act of disloyalty” against the lessor (Article 612, Paragraph 1);
the Civil Code provides that in such a case, the lessor may terminate the contract without
notice (Paragraph 2). This is a “principle”. If this principle is applied as it is, it may give rise
to not-so-reasonable outcomes in some cases, depending on specific facts of the case. For
example, a lessee may sublease a contract to a family member who lives with them, or beinga judicious person they may assign the leasehold to that person. In these hypothetical cases,
the change in the lessee is only a nominal issue and it can be safely said that there is nochange of the lessee in effect. Against this background, the Supreme Court held that unauthorized assignment/subleasing is an act of disloyalty in principle and therefore entitles thelessor may terminate the contract. However, they additionally held that the right to terminate
does not arise in case where the existence of “special circumstances” makes lessee’s act
short of an act of disloyalty.
The Supreme Court’s use of the “special circumstances” structure, as described above,
has the following significance: first, by making the “principle-exception” relationship clear,it clarifies the party responsible for making assertions and where the burden of proof lies inin the event of litigation (“special circumstances” must be asserted and proved by the party
who seeks to deny the application of a principle); second, abstract/formal justice and concrete justice/appropriateness (equity) may be regulated by positing the two as principles andexceptions. On the latter point, it is possible to liken this relationship to that between common law and equity under English law.
Since the Supreme Court ruling, the number of judgements adopting the “special circumstances” structure has increased sharply. According to the TKC Law Library database(as of August 5, 2014), there are a total of 22,975 such precedents (including 21,447 civil
cases), of which 1,687 are Supreme Court judgements (including 1,494 civil cases). A statistical and chronological comparison of precedents offers interesting data useful in examining
the judicial community’s response to society. For example, between 1965-1975 when Japanese society was enjoying rapid economic growth, the judicial doctrine experienced comparative progress, with an overhelming 359 Supreme Court precedents utilising the “special
circumstances” structure throughout this period.42
In the sphere of international civil litigation, the Supreme Court’s adoption of the “spe42 For reference, the number of Supreme Court precedents (civil cases) is as follows: 1945-54: 25, 195564: 280, 1965-74: 359, 1975-84: 248, 1985-88: 98, 1989-97: 198, 1998-2007: 226.

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cial circumstances” structure43 has triggered open debate over the merits of the “special
circumstances” theory as a framework of judgement for exceptional treatment of decisions
on international jurisdiction. The theme has been reflected in the slogan “from special circumstances to a natural forum”, under which there has been much debate.44
From a comparative law perspective, the debate over the enactment of the new Dutch
Civil Code, which gives a great deal of discretion to judges is instructive.45 Further, it has
been said that an important element in movement towards legal unification and re-codification on a global scale lies in the fusion of civil and common law. In this regard, it is expected that comprehensive research will be conducted on the “special circumstances” structureused by the courts of Japan to examine the creation and establishment by of legal rules by
judges in under the principles of civil law (statute law).

VIII Conclusion – Layered Structure of Legal Order & Dynamic
Formation of Law
This article analysed the relationship between “legal principles” and “legal rules” within the context of the Europe-centered movement towards to re-codification of private law andproceeded to explore the “the principle-exception relationship” inherent in “legal rules”.
The article then clarified the relationship between the statutory provisions in Articles
424 to 426 of the Civil Code stipulating the right to demand the rescission of fraudulent acts
and the general French law principle of the fraude theory (fraus omnia corrumpit), identified
the following dynamic (dynamique) model46 ─ (1) formal legal rules as principles  (2)fraude as exceptions  (3) objectification (objectivation) through the easing of requirements
 (4) creation of new principles of law ─ and on this basis developed the proposition47 that“general principles of law” (especially “the fraude theory” as a “corrective principle of law”)
are involved in the development of law and constitute the foundation of legal rules. I would
like to conclude by recognizing that such a layered structure of legal order and dynamic
comprehension (incessant dialogue) of principles and exceptions will lead to a gradual evolution of a legal order48.
43 Supreme Court precedent of October 16, 1981, Minshu Vol. 35, No. 7, p.1224; Supreme Court precedent of November 11, 1997, Minshu Vol. 51, No. 10, p.4055.
44 Cf. “(Symposium) Present & Tasks of Theory of International Civil Procedure Law,” Journal of Civil
Procedure No. 45 (1999), p.132 et seq. [Shunichiro NAKANO]; “Progress in Autonomy by Parties Concerned over Disputes in International Transactions” compiled by Akira SAITO [Akira SAITO] (Horitsu-Bunka Sha Co., 2005), p.101 et seq.; etc.
45 Cf. Arthur HARTKAMP, “Judicial Discretion Under the New Civil Code of the Netherlands” (translated by Hiroo SONO), Minshoho Zasshi (Journal of Civil/Commercial Codes) Vol. 109, No. 4=5, p.647 etseq. (esp. pp.656-659); Naoya KATAYAMA, “Extinctive Prescription System under New Dutch Civil Code”
in “Present State & Revision Proposals on Extinctive Prescription Law” compiled by Naoki KANAYAMA(NBL N. 122, Separate Volume, 2008), p.174 et seq.; etc.
46 DE MOY also analyzes gradual legal evolution in five steps regarding filiation of illegitimate children(enfants naturels). Cf. DE MOY, op. cit. (*20), nos 753-754, pp.347-348.
47 KATAYAMA, op. cit. (*21), p.7.
48 For the layered structure of legal rules and its dynamic comprehension, refer to Naoya KATAYAMA,Legal Code & General Principles of Law

13“Types of Fraudulent Acts & Structure of Rules of Law – ‘From Theory of Types to ‘Theory of Layered
Structure of Rules” in “A Collection of Dissertations in Memory of Dr. Keishiro Uchiike, Establishment &Evolution of Private Rights” (Keio University Press, 2013).

Toward Diachronic Self-Government

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Toward Diachronic Self-Government:
Public Records and Popular Sovereignty in
Japan
YOKODAIDO, Satoshi *CONTENTS
Introduction
I. Development of Laws
1. The Importance of Freedom of Expression in a Democratic Nation
2. The Enactment of the Access to Information Act in 1999
3. The Enactment of the Public Records Management Act in 2009
II. Record Keeping and Disclosure as Requirements of Popular Sovereignty
1. The Meaning of the “Principle of Sovereignty of the People”
2. Public Records Management Act and Popular Sovereignty
3. From Administrative Information to Governance Information
III. Problems with the System and Practice
1. Records of Business of Both Houses
2. Minutes of Meetings in the Diet
3. Problems of PracticeConclusion

Introduction
Mismanagement of public records in Japan has been a significant issue since 2010. Suchincidents include the failure to note the minutes of meetings responding to the Great East
Japan Earthquake in 2011 and COVID-19 in 2020–2021, the cover-up of daily logs by Japan’s Self-Defense Forces in South Sudan (from January 2012 to May 2017), the falsificationof documents in the Moritomo Gakuen and Kake Educational Institution scandals (2017–2018), and the destruction of the list of attendees to the “Cherry Blossom Viewing Party”
hosted by Prime Minister Shinzō Abe (from 2013–2017). Why are public records importantin a liberal democratic country? Japanese constitutional law scholars have rarely pointed out,
aside from the disclosure of public information, the importance of public records and their
management until a series of scandals.1 One of the causes of public records mismanagement* Professor of Constitutional Law, Keio University Law School, Japan: Visiting fellow, Trinity College
Dublin Law School, Ireland (2022-2023).
1 Junta Okada, Nihonkoku Kenpō ni Okeru Kōbunsho Kanri Ron: Digital-Ka Jidai no Kenpō Ron ni

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appears to be a lack of sufficient understanding of the significance of public records management from the perspective of constitutional law.
Therefore, in this paper, I attempt to answer this question.2 I clarify the importance of
public records management and disclosure in a democratic nation with a popular sovereign.
In addition, I analyze the concept of popular sovereignty in this context and claim that it
requires the recording, management, and disclosure of public records as a constitutional
obligation. From this perspective, I point out the problems in the systems and practices ofpublic records management in Japan.

I. Development of Laws
In this section, I provide an overview of the development of laws concerning public records
and information in Japan, emphasizing the relationship between freedom of expression andpopular sovereignty.
1. The Importance of Freedom of Expression in a Democratic Nation
The Supreme Court of Japan (SCJ) stated the importance of freedom of expression, in termsof popular sovereignty, in the famous Hoppō Journal case,3 as follows:
In a democratic nation, where sovereign power resides with the people, the following is the foundation of its existence. That is, the people as constituents ofthat nation may express any doctrine, advocacy of doctrine, and the like as well
as receive such information from each other, and by taking whatever he believes
rightful from among them of his own free will, the majority opinion is formed,
and government administration is determined through such process. Therefore,
the freedom of expression, especially the freedom of expression relating to public matters, must be respected as a particularly important constitutional right ina democratic nation. It is considered that this thought lies at the root of paragraph 1, Article 21 of the Constitution.4

Mukete [Archives and the Japanese Constitution in the Digital Age], 26(1) Hakuoh Hōgaku 243, 245 (2019).
See also Junta Okada, Archives in Parliament: Democratic Role of the Japanese National Diet Library, in
Archives for Maintaining Community and Society in the Digital Age 13 (Keiji Fujiyoshi ed. 2021).
2 This article is based on my article: Satoshi Yokodaido, “Kiroku ga Tsunagu Bundan: ‘Kako, Genzai,
Mirai o Tsunagu Kuni no Jyūdai na Sekimu to site no Kiroku” [The “Division” Connected by “Records”:“Records” as a “Vital National Responsibility that Links the Past, Present, and Future”], in Kenpō to“Bundan” [Constitution and “Divisions”], 137 (Makoto Arai, Shinsuke Tomotsugu, and Satoshi Yokodaido ed. Kōbundō, 2022). This article was supported by JSPS Kakenhi, Grant-in-Aid for Scientific Research (B), Grant Number 22H00919.
3 Saikō Saibansho [Sup.Ct.] June 11, 1986, 40(4) Saikō Saibansho minji hanreishū [Minshū] 872(grand bench judgment).
4 Nihonkoku Kenpō [Kenpō] [Constitution], art. 21, para. 1: Freedom of assembly and association as
well as speech, press, and all other forms of expression are guaranteed.

Toward Diachronic Self-Government

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The SCJ indicated that the freedom of expression, provided in Article 21, paragraph 1of the Japanese Constitution, guarantees the free expression of ideas and the free receipt ofsuch ideas without any interference by public authorities. The latter is the “right to know” or“freedom to know.” Constitutional law scholars have argued that the right to know has both
negative and positive meanings ── not being prevented from receiving information by public authorities and the right to request the disclosure of information held by the public authorities. The reason is that “the people are sovereign and in order for the people as sovereigns to properly monitor and control the activities of the state, it must be made clear to thepeople what information the government possesses.”5
2. The Enactment of the Access to Information Act in 1999
The construction of a legal system to embody the right to request the disclosure of government information has been slow. In the 1980s, local governments in various regions enacted
information disclosure ordinances that preceded the national government. In 2001, the “Acton Access to Information Held by Administrative Organs”6 (hereinafter, “Access to Information Act”) finally came into effect7 (it was enacted in 1999). Article 1 stipulates the purpose of the Act as follows:
The purpose of this Act is, in accordance with the principle of sovereignty of thepeople, and by providing for the right to request the disclosure of administrative
documents, etc., to endeavor towards greater disclosure of information held byadministrative organs thereby ensuring to achieve accountability of the Government to the citizens for its various activities, and to contribute to the promotionof a fair and democratic administration that is subject to the citizens’ appropriate understanding and criticism.8
In the legislative process, there were discussions about whether to specify the “right toknow” in this purpose provision; however, it was not explicitly stated. This is because there
are various views on the basis and content of the concept of the “right to know” and the SCJ
precedents do not explicitly recognize it in a positive sense, namely, the right to request thedisclosure of information held by the administrative organs.9 Instead of the “right to know,”
5 1 Tyūshaku Nihonkoku Kenpō [1 Commentary on Japanese Constitution], 346 (Yasuo Hasebeed., 2018) (written by Shōjirō Sakaguchi).
6 Gyōsei Kikan no Hoyū suru Jyōhō no Kōkai ni Kansuru Hōritsu [Gyōsei Kikan Jyōhō Kōkai Hō] [Acton Access to Information Held by Administrative Organs], Law No. 42 of 1999 (hereinafter Access to Information Act).
7 Information held by independent administrative agencies is not covered by the Access to Information
Act: This is covered by the Dokuritsu Gyōsei Hōjin Tō no Hoyū suru Jyōhō no Kōkai ni Kansuru Hōritsu[Dokuritsu Gyōsei Hōjin Tō Jyōhō Kōkai Hō] [Act on Access to Information held by independent administrative agencies], Law No. 140 of 2001.
8 Access to Information Act, supra note 6, art. 1.
9 Syōkai Jyōhō Kōkai Hō [Detailed Explanation of the Access to Information Act], 13–14(Sōmu-Shō Gyōsei Kanri kyoku [Administrative Management Bureau of the Ministry of Internal Affairs

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the legislature uses “the principle of sovereignty of the people.” The importance of this decision is discussed later.
Based on this purpose, the Act guarantees every person, even non-Japanese nationals,
the right to request disclosure of information10 in “administrative documents,”11 and adopts
a system in which this disclosure is obligatory (in principle) and can be exceptionally undisclosed only when it falls under the grounds for non-disclosure specified in the Act.12
3. The Enactment of the Public Records Management Act in 2009
The disclosure of government information is meaningful only when public records are properly made, maintained, and managed. Therefore, it was necessary to establish a legal systemfor public record management at the time of the enactment of the Access to Information Act.
However, this was on hold until the “Public Records and Archives Management Act”13 (hereinafter, “Public Records Management Act”) came into effect in 2011 (it was enacted in2009), 10 years after the Access to Information Act.14 Article 1 stipulates the purpose of the
Act as follows:
The purpose of this Act is, to strive towards proper management of administrative documents and appropriate preservation, use, etc. of historical public records and archives, by providing for the basic particulars concerning management of public records and archives, taking into consideration that publicrecords and archives as records of historical facts and various activities of theState and incorporated administrative agencies, etc. should be available for independent use by the citizens, who have popular sovereignty, as an intellectual
resource to be shared by the people in supporting the basis of sound democracy,in accordance with the principle of sovereignty of the people, thereby enabling
administration to be managed properly and efficiently, and also ensuring accountability of the State and incorporated administrative agencies, etc. to the
public for their various activities in both the present and future.15
In this purpose provision, it was declared that the Act was enacted “in accordance with theand Communications] ed., Zaimu-Shō Insatsu Kyoku, 2001).
10 Access to Information Act, supra note 6, art. 2 para. 3.
11 Id. art. 2, para. 2: The term “administrative document,” as used in this Act, means a document, picture,and electronic or magnetic record (a record made by an electronic method, a magnetic method, or any othermethod not recognizable to human senses; the same applies hereinafter) that, having been prepared or obtained by an employee of an administrative organ in the course of their duties, is held by the administrative
organ concerned for organizational use by its employees.
12 Id. art. 5.
13 Kōbunsho Tō no Kanri ni Kansuru Hōritsu [Kōbunsho Kanri Hō] [Public Records and Archives Management Act], Law No. 66 of 2009 (hereinafter, Public Records Management Act).
14 The National Archives of Japan was established in 1971 and the Public Archives Act was enacted in
1987. However, these Acts are not for recording, managing, and preserving public records in general.
15 Public Records Management Act, supra note 13, art. 1.

Toward Diachronic Self-Government

19

principle of sovereignty of the people” for “ensuring accountability” to the public in both thepresent and future. Hence, the idea of diachronic self-government is expressed. Based on thispurpose, Article 4 of the Act specifies the obligation to make documents, including the decision-making process, providing that “For the purpose of contributing to the achievementof the purpose specified in Article 1, employees of an administrative organ must prepare
documents concerning the following and other particulars to enable decision-making processes including their background in the relevant administrative organ and performance of
the affairs and business of the relevant administrative organ to be inquired into or observed
logically, except when a case pertaining to processing is minor…”16 The Act stipulates thatthe head of the relevant administrative organ must, according to the Cabinet Order provisions,17 classify and arrange documents,18 appropriately preserve,19 register the administrative document files,20 dispose of the documents after the expiration of the retention period,21
and report the status of management,22 etc.23 ── it contributes to the realization of publicrecords management under uniform rules.

II. Record Keeping and Disclosure as Requirements of Popular
Sovereignty
The scandals concerning the mismanagement of public records, seen at the beginning of thispaper, occurred after the laws were in place. The reason may be that there is insufficientawareness of why public records management is necessary. It is important to note that both
Acts use the phrase “the principle of sovereignty of the people” in Article 1, which declares
the purpose of the Acts. What is the meaning of inserting the phrase into both Acts? In thissection, I answer this question by focusing on the arguments of a particular constitutionallaw scholar who played a crucial role in inserting the phrase into Article 1 of the Access toInformation Act.
1. The Meaning of the “Principle of Sovereignty of the People”
It was Kōji Satō, an influential constitutional scholar and a member of the Administrative
Information Disclosure Subcommittee of the Administrative Reform Commission,24 who put
16 Public Records Management Act, supra note 13, art. 4.

17 Kōbunsho Tō no Kanri ni Kansuru Hōritsu Shikō Rei [Order for Enforcement of the Public Records
and Archives Management Act], Cabinet Order, No. 245 of 2010.
18 Public Records Management Act, supra note 13, art. 5.
19 Id. art. 6.
20 Id. art. 7.
21 Id. art. 8.
22 Id. art. 9.
23 Id. art. 10. This Article stipulates the obligation of the heads of an administrative organ to establish
rules concerning the management of administrative documents to ensure that the documents are managed
properly.
24 This commission was established by the Gyōsei Kaikaku Iinkai Setchi Hō [Act for Establishment of
the Administrative Reform Commission], Law No. 96 of 1994.

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the phrase, “in accordance with the principle of sovereignty of the people,” in the Access toInformation Act.25
The textbook written by Satō explained “sovereignty of the people” as follows26: “sovereignty of the people is…not only the will or authority that establishes and supports theConstitution but also includes the normative requirement that, on the premise of that Constitution, the system of national government must be organized to take advantage of this willor authority of the people.”27 Satō called this requirement the constitutive principle of popular sovereignty ── “The constitutive principle of popular sovereignty not only calls for the
democratization of the system of governance but also requires that there should be a ‘forum
for open public debate’ among the people that allows them to constantly monitor and question the system of governance and its activities.”28 Furthermore, Satō emphasizes the direct
link between “popular sovereignty” and “freedom of expression.” According to Satō, “Freedom of expression, which encompasses freedom of assembly and association and the socalled ‘right to know,’ is essentially the freedom of the individual from the state, but at thesame time, it has an aspect directly related to popular sovereignty in the sense that it is ameans to maintain and develop a forum for open public debate and to realize political management by the people.”29
Thus, in Satō’s understanding, popular sovereignty, as a constitutive principle, requires
a “forum for open public debate” and freedom of expression is positioned as essential for the
maintenance and development of this forum and participation in national politics. In addition, by understanding that freedom of expression encompasses the “right to know,” popularsovereignty becomes directly linked to it and information disclosure.
2. Public Records Management Act and Popular Sovereignty
Article 1 of the Public Records Management Act uses the phrase “in accordance with theprinciple of sovereignty of the people.”30 Although Satō did not participate in the process ofthe enactment of the Act, the phrase is clearly intentional in its relevance and consistency
with the purpose of the Access to Information Act. In this regard, Satō stated, “Since theAccess to Information Act (ordinances) is interpreted as being based on constitutional requirements, constitutional control is exercised over the reliable creation of documents (information), the establishment of an appropriate management system, and the establishment
25 Hiroshi Miyake, Shiru Kenri to Jyōhō Kōkai no Kenpō Seisaku Ron: Nihon no Jyōhō Kōkai
Hōsei ni Okeru Siru Kenri no Seisei, Tenkai to Kadai [Theory of Constitutional Policy of Right
to Know and Access to Information: Generation, Development and Issues of Right to Know inJapan’s Legal System of Access to Information], 3 (Nihon-Hyōronsha, 2021).
26 Satō wrote many textbooks. Among them, I quote his latest textbook, which presents Satō’s position
more clearly than his earlier one. Kōji Satō, Nihonkoku Kenpo Ron [Theory of the Constitution ofJapan] (2nd ed. Seibundō, 2020).
27 Satō, supra note 26, at 433 (emphasis in original).
28 Id. at 434 (emphasis in original).
29 Id. at 434 (emphasis in original).
30 See supra text accompanying note 15.

Toward Diachronic Self-Government

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and operation of disclosure standards, etc.”31 In other words, Satō believed that the creationof a system of making documents and their maintenance and information access are constitutionally requested.32
This understanding seems to be in line with the “Basic Recognition” of the “Final Report” of the Expert Group on the Way of Public Record Management.33 The “Final Report”
states, “The foundation of democracy is for the people to freely access accurate information,
make accurate judgments based on that information, and exercise their sovereignty. The‘official documents,’ which are accurate records of the nation’s activities and historical facts,
are the basic infrastructure supporting this foundation and are the valuable common property of the people, indispensable for learning lessons from the past, as well as, for fulfilling
accountability to the people in the future.”34
3. From Administrative Information to Governance Information
The Access to Information Act and the Public Records Management Act relate to administrative organs’ information and records. The legislature and judiciary were excluded fromtheir scope. However, there is no reason to exclude them from the requirements of the people’s principle of sovereignty. Satō did not limit the scope of his argument to government-held information. Satō understood that the “forum for open public debate,” which is
required by “the constitutive principle of popular sovereignty,” was a forum to “enable
constant monitoring and questioning of the system of governance and its activities.”35 Basedon this understanding, Satō explicitly wrote that “The Diet (especially the significance ofArticle 57 of the Constitution 36 regarding the openness of both House of the Diet meetings)
and the courts (especially the significance of Article 82 of the Constitution37 regarding the
31 Id. at 281 (emphasis in original). In this sense, Article 4 of the Public Records Management Act (Seesupra text accompanying note 16) is a materialization of this constitutional requirement.
32 From this understanding, the professionals who bear the responsibility of public records management
become indispensable actors in a constitutional democracy with popular sovereignty. On this point, see
Junta Okada, Archivist no Kenpō-Teki Igi [Constitutional Meanings of Archivists] 25(2) Hakuoh Daigaku
Ronshū 145, 151–152 (2011).
33 Kōbunsho Kanri no Arikata Tō ni Kansuru Yūshikisha Kaigi [Expert Group on the Way of
the Public Records Management], Saishū Hōkoku: Toki o Tsuranuku Kiroku to shite no Kōbunsho Kanri no Arikata: Ima, Kokka Jigyō to Shite Torikumu [Final Report: The Way of Public Records Management as a Record through Time: Now Working on It as a National Project], Nov. 4,
2008, available at https://www.cas.go.jp/jp/seisaku/koubun/hokoku.pdf [last visited Jan. 31, 2023].
34 Id. at 1. The idea of diachronic self-government is expressed here, too.
35 Satō, supra note 26, at 434 (emphasis in original).
36 Nihonkoku Kenpō [Kenpō] [Constitution], art. 57: (1) Deliberation in each House shall be public.
However, a secret meeting may be held where a majority of two-thirds or more of those members present
passes a resolution therefor. (2) Each House shall keep a record of proceedings. This record shall be published and given general circulation, excepting such parts of proceedings of secret session as may be deemed
to require secrecy. (3) Upon demand of one-fifth or more of the members present, votes of the members on
any matter shall be recorded in the minutes.
37 Nihonkoku Kenpō [Kenpō] [Constitution], art. 82: (1) Trials shall be conducted and judgment declared publicly. (2) Where a court unanimously determines publicity to be dangerous to public order or
morals, a trial may be conducted privately, but trials of political offenses, offenses involving the press orcases wherein the rights of people as guaranteed in Chapter III of this Constitution are in question shall

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openness of judicial proceedings) are at the center of the ‘forum of open public debate’ andare expected to provide the people with important information about national politics andplay a role in showing them the path to consider.”38 Satō pointed out that these provisions
materialized at the constitutional level of the right to request the disclosure of public information, which is a component of the right to know.39
Constitutional law scholar, Hideki Shibutani pointed out the existence of the “principleof openness” of the governance process, which is found in the governance provisions of theConstitution of Japan.40 Shibutani said, “the principle of openness of the governing process
is not only an objective legal norm but also a subjective legal norm (right). It can be said that
all the information held by the governing bodies essentially belongs to the sovereign people
and that the people have a sovereign right to know the contents of such information. This is
a common understanding of the current constitutional law scholarship.”41 Shibutani argued,
like Satō, that the direct linkage between the right to know and the principle of sovereigntyof the people is cited as the basis for the principle of openness of the administrative information and the governing process.

III. Problems with the System and Practice
If the principle of sovereignty of the people requires the principle of openness of the governance process, it is important to look at the records of the entire governing process, including administrative, legislative, and judicial documents and information, from the perspectiveof popular sovereignty. In this section, I point out the problems with the system and thepractice of managing these records in the Diet.42
1. Records of Business of Both Houses
The Secretariat of the House of Representatives and the Secretariat of the House of Councilors hold certain documents. Both Secretariats enacted the Rules for Handling Documents.43
always be conducted publicly.
38 Satō, supra note 26, at 434 (emphasis in original).
39 Id. at 281, 309.
40 Hideki Shibutani, Kenpō [Constitutional Law], 521 (3rd ed. Yūhikaku, 2017).
41 Id. However, the understanding that “This is a common understanding of current constitutional law
scholarship” is questionable. If this understanding is correct, why have constitutional law scholars in Japannot emphasized the importance of archive management? See Okada, supra note 1, at 245.
42 Although this article does not touch on court records, this does not mean that there is no problem. The
most serious problem concerning the court case records is that they are to be discarded after the establishedretention period. It is reported that several case records concerning important constitutional and administrative law precedents and high-profile crimes are discarded. The SCJ recently ordered high, district, andfamily courts to keep records, even if they have reached the end of their mandated retention periods, to review whether historically valuable materials have been handled appropriately. See e.g., Top court orders
temporary blanket halt to disposal of case files, Kyodo News, Nov. 2, 2022, available at https://english.
kyodonews.net/news/2022/11/f096c5adacd0-top-court-orders-temporary-blanket-halt-to-disposal-of-casefiles.html [last visited Jan. 31, 2023].
43 Syūgiin Jimukyoku no Hoyū Suru Giin Gyōsei Bunsho no Kaiji Tō ni Kansuru Jimu Toriatsukai Kitei[Syūgiin Jimukyoku Bunsho Toriatsukai Kitei] [Rules for the Administration of Disclosure, etc., of House

Toward Diachronic Self-Government

23

However, these rules have certain problems. As Ayako Ōkura, the public records management specialist pointed out,44 the Rules only state that the purpose of document management
is proper and efficient execution of administrative work; there is no perspective of accountability to the present and future citizens, as stated in Article 1 of the Public Records Management Act.45 In addition, the creation of documents is not mandatory and specific examples of documents to be created are not provided. Furthermore, the organization of the
documents is not obligatory and does not indicate the criteria for setting retention periods.
The preservation of the documents is also not obligatory and is managed in a decentralizedmanner. Article 13, Paragraph 2, of the Supplementary Provision of the Public Records
Management Act, stipulates that “management of the documents of the Diet and the courts
is to be subject to review, in consideration of the purpose of this Act, as well as the status,
power, etc., of the Diet and the courts.” Hence, it is necessary to develop the system because
it is a constitutional obligation.
2. Minutes of Meetings in the Diet
Article 57, paragraph 2, of the Constitution46 requires the preparation, preservation, publication, and distribution of “record of proceedings” or “minutes of meetings” of both Housesof the Diet at the constitutional level to make it possible to confirm the proceedings anddeliberations of the Diet to make them widely known to the people.47 Although this Article
directly covers only plenary sessions, it is often said that the provision applies mutatis mutandis to committees due to its purpose.48 Hence, the provisions of the Rules of the House ofRepresentatives and the House of Councilors, which provide for the preparation of the minutes of the committee meetings,49 can be regarded as embodying the requirements of theConstitution. Currently, the minutes of the plenary sessions and the committee meetings ofeach House of the Diet can be viewed in text or image format through the National Diet
Library’s Diet Meeting Minutes Search System,50 starting from the first Diet session (Mayof Representatives Administrative Documents Held by the Secretariat of the House of Representatives](Agency Instruction No. 1 of 2008), and Syūgiin Jimukyoku no Hoyū Suru Jimukyoku Bunsho no Kaiji Tōni Kansuru Jimu Toriatsukai Kitei [Sangiin Jimukyoku Bunsho Toriatsukai Kitei [Rules for the Disclosure,etc., of Secretariat Documents Held by the Secretariat of the House of Councilors] (decision by the Secretary-General in 2011).
44 Ayako Ōkura, Sangiin Jimukyoku Oyobi Syūgiin Jimukyoku ni Okeru Genyō Bunsho no Kanri [Management of Working Documents in the Secretariat of the House of Councillors and the Secretariat of theHouse of Representatives], 75 Records Management 23, 44 (2018).
45 See supra text accompanying note 15.
46 See supra note 36.
47 3 Tyūshaku Nihonkoku Kenpō [3 Commentary on Japanese Constitution], 761 (Yasuo Hasebeed. 2020) (written by Masakazu Doi) (hereinafter, Commentary).
48 Id. at 745.
49 Syūgiin Kisoku [Rules of the House of Representatives], art. 61-63 and Sangiin Kisoku [Rules of theHouse of Councilors], art. 56–59.
50 https://kokkai.ndl.go.jp/#/ [last visited Jan. 31, 2023]. Stenographic records of meetings at plenary
sessions and committees at the Imperial Diet under the Constitution of The Empire of Japan are also available from the first session of the Imperial Diet (Nov. 29, 1890), via the Imperial Diet Meeting Minutes
Search System, provided by the National Diet Library. https://teikokugikai-i.ndl.go.jp/#/ [last visited Jan. 31,

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20, 1947). Although the actual degree of publication is evaluated to be very high comparedto other countries,51 certain issues need to be considered from the perspective of popularsovereignty.
3. Problems of PracticeSecret Meetings

There is no provision for the disclosure of the records of “secret meet-ings.”52 While some records of secret meetings, under the former Constitution (1889-1947),
were made public, there are no examples of the same under the current Constitution.53 Generally, the need for secrecy diminishes with time. If no positive rationale can be offered for
not disclosing them, then they should be disclosed to fulfill accountability and self-governance.
Revocation of Remarks

Regarding the revocation of the remarks by the Speaker of theHouse of Representatives, the President of the House of Councilors, and the Chairperson ofcommittees in both Houses, the Speaker and the President of the Houses can order the revocation of the speech of a member, which may undermine the authority of the legislator’s
speech, be offensive to a member’s dignity, or contradicts facts.54 In a committee, the Chairperson can order the revocation of a member’s speech.55 The revocation is done in a mannerthat it is impossible to identify the deleted statements.56 The purpose is explained as “reproducing such statements in the minutes would once again violate laws and regulations, etc.”57
However, the details of the statements are an important factor for evaluating a member’squalifications as a politician for the general public. If the easy cancellation of the statements
is rampant, it may hinder the evaluation of a member’s competencies.
Request for Correction of Statements

A member who has made a statement or speech

may not change the point of their statements. However, they may request a correction of thewording by 5:00 p.m. on the day following the distribution of the minutes.58 In the usual
process, a request would be made and approved after the minutes were issued. Therefore, thecorrected remarks would not be deleted from the minutes; instead, the minutes would becorrected in a manner that the edited text would be published in the most recent minutes ofthe meeting. Hence, “since the fact of the correction is revealed only after the minutes of alater meeting, the reader is likely to overlook it.”59 However, it has value since we can dis2023].
51 Commentary, supra note 47, at 768.
52 See supra note 36.
53 See Shigeo Konno, Kokkai ni Okeru Himitsu Kaigi Roku no Toriatsukai ni Tuite [On the Handling of
Minutes of Secret Meetings in the Diet], 15 Research Bureau Ronkyū 66 (2018).
54 Kokkai Hō [Diet Act], Law No. 79 of 1947, art. 116.
55 Syūgiin Kisoku [Rules of the House of Representatives], art. 71, and Sangiin Kisoku [Rules of theHouse of Councilors], art. 51.
56 Makoto Shirai, Kokkai Hō [Diet Act], 89-91 (Shinzansha, 2013).
57 Akio Morimoto, Kokkai Hō Gaisetsu [Outline of Diet Act], 282 (Kōbundō, 2021).
58 Syūgiin Kisoku [Rules of the House of Representatives], art. 203, and Sangiin Kisoku [Rules of theHouse of Councilors], art. 158.
59 Morimoto, supra note 57, at 279.

Toward Diachronic Self-Government

25

tinguish the statements that have been corrected.
Visualized Materials

Diet members extensively use flips and panels at the meetings,

especially televised meetings. This is problematic because, in principle, such materials are
not recorded in the minutes. The minutes are recorded as “according to this;” however often
the reference to “this” is not clear. As Satō emphasized, if the Diet is at the center of the“forum of open public debate” and is “expected to provide the people with important information about national politics and to play a role in showing them the path they should consider,”60 the inability to adequately reconstruct the meeting from the minutes must be improved.
Reference Materials

Regarding the materials used in the Diet meetings submitted by

the administrative organs, the remarks by Reiko Ōyama, a political scientist and a Diet expert, are worth mentioning. She pointed out that “when a bill is examined by the committee,
the administrative ministries and agencies submit a large number of reference materials.
Some of these contain valuable information that should be shared with the public, such as
statistical data that are not generally available. However, these materials are, with few exceptions, closed to the public.”61 Hence, if the Constitution and the principle of popularsovereignty require the principle of openness, the materials submitted to the Diet must be
open to the public.

Conclusion
If the concept of popular sovereignty requires the creation of a system of making documents
and their maintenance and access to information as a constitutional obligation, it means thatJapan, a sovereign nation, was built on an unstable foundation before the enactment of theAccess to Information Act and the Public Records Management Act. However, as we haveseen, even after these enactments, there have been several problems concerning the systems
and practices of public records management. To tackle such issues, we must be aware of theimportance of public records in a constitutional democracy. The argument here focuses
mainly on the Japanese situation. However, the main point of this argument is valid for other countries with popular sovereignty. In this sense, comparative studies offer several suggestions. This could be the next theme of interest for constitutional law academics in Japan
who have not emphasized the importance of public records management from the perspective of constitutional law.

60 Satō, supra note 26, at 434.

61 Reiko Ōyama, Kokkai to Accountability: Kokumin Daihyō Kikan no Nijyū no Sekimu [The Diet andAccountability: Dual Responsibilities of National Representation Body], 20(4) Komazawa Hōgaku 1, 21(2021).

Abandonment of Crime

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Abandonment of Crime:
Act of Abandonment and Voluntary Action*

WADA, Toshinori**
Judgment of 5th Criminal Division of Tokyo High Court, on July 14, 1976 (the“Judgment”)
Case number: 1976 (U) 651; Case of attempted murder, assisted murder attempt,
violation of the Act for Controlling the Possession of Firearms or Swords andOther Such Weapons and Explosives (the “Case”)
Hanrei Jiho (834) p.106

CONTENTS
I. Facts
II. Court RulingIII. Notes/Commentary

I. Facts
Defendant X had left his wife P under care of his best friend Q at Q’s house. When X
dropped by Q’s house on around 10 AM of September 29, 1975, X was informed of the factthat Defendant Y took P who had returned home to see A back to Q’s house. And then, X
brought A to Q’s house and demanded A to explain his relationship with P on the second
floor of the house, but A never admitted his fault. Seeing this, X decided to murder A in
retaliation and had Y who was on the first floor of the house bring a Japanese sword withapproximately 52-cm blade. Y understood X’s intent, and therefore, X and Y were conspiredwith each other to murder A. On around 11 AM of the same day, Y brandished the Japanesesword and slashed A on his right shoulder once, and when Y tried to attack A by the second
brandish to finish A’s life, X said “That’s enough. Y, let’s go.” and stopped Y from pursuing
the attack, which Y followed and gave up his next attack. Subsequently, X instructed hisbest friend Q and others to take A to the hospital, and consequently, A was able to receive a
medical treatment and ended up with only a cut wound to his shoulder which required ap* This article was originally published in Japanese, “Chushihan” [Abandonment of Crime] in Matsubara,
Y. ed. Keihou no hanrei: Souron [Criminal Case Studies: General Theory] (2011) Seibundo, pp.207-223.
** Professor of Criminal Law, The University of Tokyo Graduate Schools for Law and Politics

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proximately two-week treatment.
The original judgment (Judgement of Urawa District Court, on March 1, 1976; no publication) (the “Original Judgement”) admitted that it is presumable that Defendants abandoned their act of crime as their voluntary action because Defendants stopped their attack
despite the fact that there was no deterrent against further attack to murder A. The Original
Judgment, however, denied Defendants’ defense of abandonment of crime because A could
have died from excessive bleeding from the approximately 22-cm cut wound on his rightshoulder if he had left unattended and therefore this case is a completed attempt, and further
because the Defendants only asked Q and others to rescue the victim and provided no firstaid treatment by themselves, and thus the court recognized no sincere effort to prevent theconsequence.
Defendants filed the appeal against the Original Judgment, arguing that the Original
Judgment that denied defense of the abandonment of crime regarding the attempted murder
was based on a false interpretation of the law in that the defense of abandonment of crimeshould be granted because Defendant X asked his best friend Q and others to take A to thehospital immediately after Defendants abandoned their murderous intention against A andgave up the further attack on A and, following the request, Q and others put the will of X
into action and took A to the hospital, and thus their act should be equated with the act of X.

II. Court Ruling
Reversing the Original Judgment and Decision by the Appellate Court
The court, granting Defendants the defense of abandonment of crime on the following
grounds, reversed the Original Judgement, and sentenced Defendant X to seven-year imprisonment and Defendant Y to four-year imprisonment.
“In order for the defense of abandoned attempt to be effective, it requires the attempter
who undertook the commission of the crime to prevent the consequence of his/her criminal
act by his/her own voluntary act and effectively prevent the completion of the crime. At thesame time, however, the defense of abandoned attempt is the very act of abandonment by theoffender and, in the phase of uncompleted attempt, the voluntary abandonment of commission and further pursuit of the crime before the completion of the commission is adequate toconstitute abandoned attempt; in the case of completed attempt, however, since the act ofcommission by the offender has already been completed, in order to be granted the defenseof abandonment attempt, it is required to prevent the crime from being completed by voluntary action, and therefore a sincere effort to prevent the consequence from happening is required.
Applying these to this case, and considering the result of the fact-finding by this court
together with the evidence as provided in the Original Judgement, the following facts arefound: Defendants conspired to murder A motivated by the reason as provided in the Original Judgement, and Defendant Y, following the order of Defendant X, brandished the Japa-

Abandonment of Crime

29

nese sword with approximately 52-cm blade as provided in the Original Judgement andslashed A who was sitting on his heels in front of Defendants on his shoulder once, and A fell
forward; and at the moment Defendant Y tried to finish A’s life by the second attack with thesword, Defendant X said ‘That’s enough. Y, let’s go.’ and stopped Y from pursuing the attack, which Y followed and gave up his second attack. Further, based on the above evidence, it is impossible to determine that the act of commission of murder of A had alreadybeen completed only with the first attack Y delivered as provided in the Original Judgement,
as Defendants did not consider the first attack Defendant Y delivered to A to be critical to
A’s life, and that was the very reason Y tried to pursuit the subsequent attack, and the wound
on A was an approximately 22-cm cut wound on his right shoulder which did not penetrate
to the bone (medical certificate of A prepared by Doctor R) (In addition, there is no goodevidence to verify that A was in danger of death by excessive bleeding due to the attack Y
delivered as held by the Original Judgement). Therefore, this case is precisely the case that
falls under the case of uncompleted attempt as described above, and Defendants voluntarily
abandoned the subsequent attack despite the fact, as held in the Original Judgement, that
Defendants could have pursued the subsequent attack without any difficulty. In addition, as
Defendant X told the judicial police and prosecutor, as the reason he stopped Defendant Yfrom pursuing the second attack with the sword, ‘I could not bear to finish A’s life and see
A being murdered. I stopped Y from ending A’s life because I thought to myself, “We cannot murder A. There would be no other choice but to have A take care of my four children
and my wife who has mental problem when I do jail time. We cannot murder A.”’ The abandonment of the assault based on such reason is undeniably voluntary abandonment as provided in the relevant law. Defendant Y also stopped pursuing the subsequent attack just as
instructed by Defendant X. (As provided in the Original Judgement, Defendant X instructed
Q as provided in the Original Judgement to take A to the hospital and A was taken to S National Hospital and received a medical treatment immediately after the instruction.).
Considering the above, the Original Judgement that determined that Defendants’ act ofattempted murder which, in its nature, should have fallen under the abandoned attempt as
stipulated in proviso of Article 43 of the Criminal Code (the “Article 43”) was interrupted
attempt should be criticized as being illegal for its error of recognizing the relevant facts or
misinterpretation of the law. Therefore, it is clear that such error or misinterpretation affects
the judgment as the punishment shall be reduced or the offender shall be exculpated in thecase of abandoned attempt.”

III. Notes/Commentary
1. Precondition for Abandonment(1) The Structure of Act of Abandonment
The abandonment of crime stipulated in the proviso of Article 43 shall be constitutedby “voluntary abandonment of the crime.” “Abandonment” means an act of giving up and30

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what is given up is a “crime.” The body text of Article 43 stipulates the case of a person who“commences commission of a crime without completing it,” and a crime starts from its“commencement of commission” and ends at its “completion.” Therefore, the literal interpretation of “abandonment of the crime” is, in order to constitute the abandonment of crime,(i) at a moment in time, commencement of commission of the crime is considered to havealready been undertaken; (ii) under the assumption that there remains the possibility that thecrime is completed; and (iii) the possibility of the crime being completed has to be eliminated.
(2) Abandonment after Preparation
In association with the (i) above, an issue called abandonment after preparation is underdiscussion. The question is whether it is possible to reduce the punishment by analogicalapplication of the proviso of Article 43 in cases where the plan of crime is abandoned after
preparation of a crime is constituted and before commission of the crime is commenced. It
has been debated when the crime subject to the abandonment is considered to commence.
The commonly accepted theory postulates a crime which starts from preparation, passes
through attempt and ends at its completion and considers it possible to abandon the crimeeven when it is after preparation and before attempt. The court precedent1, however, denied
the applicability of the proviso of Article 43 based on the understanding that a crime thatcommences as at its attempt and ends as at its completion and a preparation of a crime are
two separate crimes, and abandonment after the preparation does not constitute abandonment in connection with either of the two crimes because, at the point in time, preparationof the crime has already been finished/completed, and another crime that commences as at
its attempt and ends as at its completion is yet to be commenced.
(3) Abandonment after Completion Turns out Impossible
The first case in which abandonment is denied in association with the (ii) above isabandonment because of objective failure of attempt. A shooting attempted by a shooter
whose bullets all missed the target is definitely an attempted crime, and there remains nochance that the crime is completed; there is no arguing for abandonment.
Also, in the cases where a crime is once completed, abandonment shall be denied. In
the case of offence of endangerment (kikenhan) or offence which can only be committed overa period of time (keizokuhan), although infringement of interest protected by law may actually occur or increase after the crime has reached its completion formally, prevention of such
infringement does not lead to reduction of punishment based on abandonment2. This shallalso be the case if a graver consequence is prevented after the principal crime has been committed in the case of offense of negligence (kashitsuhan) or aggravated consequential offense(kekkateki-kajuhan). If an analogical application of the stipulated reduction or exculpation
1 Judgment of Supreme Court on May 17, 1949 (Preparation of Robbery) Supreme Court Reports (criminal cases) [Shukei] Vol.10 p.177 ; Judgment of Grand Bench of the Supreme Court on January 20, 1954
(Preparation of Robbery) Supreme Court Reports (criminal cases) [Keishu] Vol. 8, Part 1, p.41
2 Reduction or exculpation of punishment must be stipulated by law as in Article 228-2 of the Penal Code(Reduction of Punishment in the Case of Release of Kidnapped Person).

Abandonment of Crime

31

of punishment based on abandonment is denied in these cases, it would be reasonable tounderstand abandonment after preparation in the same manner3.
2. Act of Abandonment in the case of Abandonment by Inaction(1) Mechanism of Abandonment by Inaction
In cases where the prerequisites of abandonment of crime ((i) and (ii) in 1. above) aresatisfied, required act of abandonment ((iii) in 1. above) depends on the degree of possibility of completion of the crime or state of the risk related to such completion.
There are two types of risks in possibility/risk of completion of a crime. The first is“physical risk” that may cause completion as a consequence of a chain of events startingfrom the act of the doer but without further action of the doer, and the second is “risk basedon possibility of continuance of the criminal conduct” that may cause completion by thecontinuance of the criminal conduct by the doer. The following seems to be a commonly
accepted framework for determining the requirement for act of abandonment to be affirmed:(a) when only physical risk is involved, “act of abandonment by preventive action” which
prevents completion of the crime by cutting off the chain of cause and effect in a proactive
manner shall be required; (b) when only risk based on possibility of continuance of the criminal conduct is involved, “act of abandonment by inaction” which causes the discontinuationof the crime shall be required 4; and (c) when two types of risks are both involved, discontinuation of the crime and cutting off the chain of cause and effect shall be required.
Based on such framework, discontinuation of the crime alone shall be inadequate foract of abandonment to be affirmed in cases where physical risk is involved.
(2) Criteria for Judgment in Court Precedents
The first court precedent that expressly referred to the manner of act of abandonment5
made mention of “possibility to cause death” if the victim is left unattended, and other court
precedents thereafter seem to almost follow the framework as mentioned above. Reviewing
3 Formally, reduction or exculpation of punishment based on abandonment is applicable only to the case of
attempted crime. Once reduction or exculpation of punishment based on abandonment is analogically applied
to abandonment after preparation in consideration of the substance of the crime, such application provides arationale to applying such reduction or exculpation of punishment to cases after completion of offence of endangerment or offence which can only be committed over a period of time. Thus, in order to deny reduction or
exculpation of punishment based on abandonment in a case of abandonment after completion of the crime, it isnecessary to understand that the purpose of such reduction or exculpation of punishment is to prevent crimes
from being completed, and therefore such purpose would not be applicable to crimes after its completion. Further, on the other hand, if we understand that the purpose of punishment for attempted crime after preparation
and before attempt is to prevent completion of the crime, reduction or exculpation of punishment based onabandonment would no longer be necessary, which brings our thoughts back to the idea that reduction or exculpation of punishment based on abandonment is applicable only to the cases of attempted crime. And only after
this contemplation, applicability of reduction or exculpation of punishment based on abandonment to offense ofnegligence or aggravated consequential offense can be explained.
4 In this case, objective act of abandonment by inaction is not necessarily deemed “adequate” to constitute act of abandonment. As it requires “voluntary intent of abandonment” in general, abandonment ofcontinuance of the crime based on offender’s misrecognition of physical risk or impossibility of completion
shall be inadequate for act of abandonment to be affirmed.
5 Judgment of Tokyo District Court on April 28, 1965, Lower Court Reports (criminal cases) [Kakeishu]
Vol. 7, No. 4, p.766

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the relevant court precedents of high courts, while act of abandonment by inaction was
judged adequate in the case of inflicting only an approximately 22-cm cut wound to the rightshoulder which did not penetrate to the bone by the Japanese sword6 and in the case of inflicting cut wound to the left forearm which required approximately two-week treatment by
chef’s knife (gyu-tou)7, act of abandonment by preventive action was judged necessary in thecase where the offender choked the victim on her neck with his weight and with all his
strength and kept choking for approximately 30 seconds after the victim had passed out, andthe victim had subsequently lost her consciousness for 30 minutes to one hour, as it involved“actual risk of death of the victim”8. Further, act of abandonment by preventive action was
judged necessary in the case where “there was no super-urgent risk of death, but there wasa potential risk of death if the victim was left unattended”9. In these cases, it can be summarized that act of abandonment by preventive action was required and abandonment by inaction was ruled out in the cases where a risk may cause the result only by the physical progress of cause-and-effect link and the risk does not have to be urgent but the risk actuallyexists.
(3) Other Related Considerations
The following points should, however, be noted as well.
First, this issue used to be discussed as a question of end point of commission of thecrime, and in the discussion, act of abandonment by inaction was deemed adequate in thecase of uncompleted attempt at a point in time when commission of a crime is yet to becompleted, and act of abandonment by preventive action was deemed necessary in the caseof completed attempt at a point in time when commission of a crime has already been completed. The underlying idea was that an abandoned attempt is a cessation of the act of commission which is the principal part of the crime. Such idea that determines the requisites forabandonment based on the characteristics of commission of a crime itself should be considered invalid today; however, such idea have left a mark in the writings of some of the court
rulings today10. We need to focus on the substantive judgement of the underlying physicalrisk at the time of abandonment in such rulings.
Second, in the cases where act of abandonment by preventive action is required in theface of physical risk, such risk seems to have been supposed to be judged in an objective
manner. In some court precedents, however, while they adopt the commonly accepted requisites for abandonment, the existence of risk as the benchmark was determined based on
6 Judgment of this case by Tokyo High Court on July 14, 1976

7 Judgment of Tokyo High Court on July 16, 1987, Hanrei Jihou (1247) p.140 For the avoidance of doubt,
this is merely a reference to the case, and the case does not provide any such reasoning in an express manner.
8 Judgment of Fukuoka High Court on September 7, 1999, Hanrei Jihou (1691) p.156
9 Judgment of Osaka District Court on November 27, 2002, Hanrei Times (1113) p.281
10 The above-cited judgement of Tokyo High Court on July 16, 1987, for instance, held “at the point where
the defendant assaulted [the victim] with the chef’s knife (gyu-tou) but failed to murder the victim, the actof commission of murder was yet to be completed, and therefore, this case falls within the case of what iscalled “uncompleted attempt.”

Abandonment of Crime33

the standard of general persons as at certain point in time11. In a high court ruling, the defendant injured the victim by stabbing the victim’s right chest with a small craft knife andinflicted only a stab wound of approximately 2-cm long and 1.5-cm deep which did not
penetrate to the lung and required approximately one-week treatment, and the court determined this act as completed attempt and required act of abandonment by preventive action12.
The court precedents may seem to be unsure about following the criteria of generally accepted theory, and some academic theory poses a question of the validity of the theory bypointing out such attitude of the courts13. It is intuitively agreeable that, in some cases, thereduction or exculpation of punishment based on abandonment should be denied if an offender leaves the victim with a serious injury at the scene of the incident even though the
injury is not critical.
However, if no proactive action to prevent completion of the crime is taken in suchcases, intent of abandonment or voluntary action may be doubtful in many cases, and in suchcases, act to prevent completion of the crime by preventive action may count as indirect
evidence to recognize intent of abandonment and voluntary action. If this is the case, evenin the cases where the reduction or exculpation of punishment should be denied as there isno act to prevent completion of the crime by preventive action, denying intent of abandonment or voluntary action should be enough to reject the reduction or exculpation of punishment based on abandonment, and an understanding that it is insufficient objectively as an actof abandonment should be unnecessary.
3. Act of Abandonment in Abandonment by Preventive Action(1) Mechanism of Abandonment by Preventive Action
If act of abandonment by preventive action is necessary in the cases where there is aphysical threat, what relationship is required between the action to prevent completion andextinction of possibility of completion? Applying the correlation between action and consequence in criminal theory, we can think of three questions: (1) the question of factual causality whether or not defense of abandonment of crime should be granted in the cases where
the possibility of completion extinguished without any action to prevent the completion; (2)the question of legal causality whether or not defense of abandonment of crime should be
granted in the cases where the process of cause and effect between action to prevent thecompletion and extinction of the possibility of completion is unreasonable; and (3) the question of how much an offender must contribute to extinguish the possibility of completion in
the cases where a third person helped to extinguish the possibility of completion.
11 Judgment of Tokyo District Court on January 22, 2002, Hanrei Jihou (1821) p.155; and the article by
the Author “Hanhi” [Criticism] Keijiho Journal [Criminal Law Journal] Vol.4 (2006) p.79
12 Judgment of Nagoya High Court on July 17, 1990, Hanrei Times (739) p.243. For the avoidance of
doubt, the case granted defense of abandonment of crime as the defendant was determined to have abandoned the crime by preventive action, and the court also expressly considered the fact that “considering thedamage of the wound, there was no chance of death if the wound was treated by a doctor.”
13 Shiomi, Jun “Chushihan no kouzou” [Mechanism of Act of Abandonment] in festschrift in honor of
Kenichi Nakayama on his 70th birthday Vol.3, p.258 and after.

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The questions (1) and (2) above are question of whether defense of abandonment ofcrime is applicable only to completion of abandonment or also applicable to uncompleted
attempt of abandonment. As the provision refers to an offender who voluntarily abandoned
the crime and not an offender who tried to abandon the crime, it would be natural to limit
the application of defense of abandonment of crime to those who completed abandonment of
the crime; however, academic theory generally accepts applicability of defense of abandonment of crime to uncompleted attempt of abandonment14. The question (3) requires further
discussions.
(2) Original Court Precedent
An important case of abandonment by the aid of third person is the case of 1937 inwhich an arson offender ran away screaming at the neighboring relative, “Do what you haveto do as I set the fire!” and the relative rushed over to the scene and put out the fire and thearson ended up without completion15. This court precedent is meaningful in two respects:
on one hand, it put a break on a series of precedents that had set too much limitation on application of defense of abandonment of crime, and on the other hand, it limited the scope of
application of defense of abandonment of crime to the cases of abandonment by the aid of
third person. In the sentence, it clearly rejected the precedents that could be interpreted asif the arson offender needed to put out the fire alone by saying “it is obvious that the offender does not have to act alone to prevent the consequence.”16 Also, granting the defense ofabandonment in the cases where “the offender does not act alone” lead to affirming the defense of abandonment of crime in the cases where the offender was indirectly involved in theact that directly caused the prevention of the consequence. This is meaningful in rejecting
the precedents that had dismissed the abandoned attempt in the case where the fire wassubstantially extinguished by the act of a third person17. At the same time, however, theruling held that the indirect preventive action must be considered substantial as if the offender directly prevented the consequence by saying “at least the effort must be as intense as tobe considered as if the offender himself prevented the consequence,” and running away
screaming “Do what you have to do as I set the fire!” did not fall under such substantial
preventive action.
(3) Going Back and Forth in Academic Discourse
As for the standard that the case of 1937 established, the concept of “sincerity” was
14 The arguments of page 375 by Hayashi “Keihou souron” and pages 225 and 228 by Yamaguchi “Mondai tankyu” [Research on Issues] require causality between the extinguishment of possibility of completionand the preventive action and it sounds as if the application is limited to completed act of abandonment;
however, in judging the risk in advance, incomplete attempt of act of abandonment is also affirmed after all
in relation to objective risk. See also “Chushihan niokeru ‘yameta’ no imi” [The Meaning of ‘Abandonment’ in Abandonment Defense] by Saku Machino in Law School Vol. 7 (1979), p.105.
15 Judgment of Old Supreme Court on June 25, 1937; Old Supreme Court Report (criminal cases) [Keishu]Vol. 16 p.998
16 Judgment of Old Supreme Court on October 25, 1927; Houritsu Shinbun (2762) p.11
17 Judgment of Old Supreme Court on September 17, 1929; Old Supreme Court Report (criminal cases)[Keishu] Vol. 8, p.446

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used by the academic position which stresses the subject of the actor,18 and the “effort whichis as intense as to be considered as if the offender himself prevented the consequence” wasinterpreted as “sincere effort to prevent the consequence.” In such context, “sincere effort”
was deemed to be a factor to reduce liability and subjective illegality by considering sincere
effort that eliminates liability as an embodiment of normative consciousness,19 or sincerity
was required as an effort by the actor genuinely seeking to prevent the consequence.20 These
theories had a substantial impact: “sincere effort” is required in general to affirm the defense of abandonment by preventive action with a third parson’s aid in these days.
This is true in court judgments as well, and the courts significantly reduced the application of defense of abandonment for a period of time.21 It was criticized because concealment of the trace of a crime which has nothing to do with prevention of completion of acrime was considered as a factor to deny defense of abandonment.
In recent years, along with the tide of objective constitution of criminal theory, more
and more theories deny the concept of “sincerity” and argue that “active effort” or “appropriate effort” is enough for defense of abandonment to be applicable.22 It is reasonable toeliminate moral factors which have nothing to do with the prevention of completion of acrime, but the question is how to measure the activeness and appropriateness, and how toevaluate these factors in the context of defense of abandonment. Some argue that “effort” isunnecessary in the first place23.
(4) Criteria to Judge Joint Action in Abandonment
The case of 1937 which did not use the “sincerity” concept should be interpreted asfollows: if you consider the act of abandonment with an aid of a third person who becameaware of the offender’s intention to prevent the consequence as “accomplice” of abandonment, such third person does not have to be a “sole agent (tandoku-seihan)” or coagent(jikko-kyodo-seihan) in the act of abandonment, but solicitation (kyosa) or aid (hojo) ofabandonment is not enough; such third person must at least be “co-principal by reason ofconspiracy (kyobo-kyodo-seihan).” To summarize, only an act of abandonment by “co-action” with a third person constitutes “abandonment” to which defense of abandonment may
be granted.
To organize court precedents in this respect, a court denied the act of abandonment in
the case of aid to rescue the victim of murder attempt in accordance with the victim’s in18 Makino, Eiichi, “Chushikoui no shinshisei” [Sincerity in Act of Abandonment] in “Keihou kenkyu” [Criminal Law Sutdies] Vol. 7 (1939), p.449 – and “Chushihan to chushi no shishisei” [Abandonment Defense andSincerity in Act of Abandonment] in “Keihou kenkyu” [Criminal Law Studies] Vol. 8 (1939), p.295
19 Kagawa, Tatsuo, “Chushimisui no houtekiseikaku” [Legal Nature of Attempt by Abandonment] (1963),
p.116
20 Nishihara, Haruo, “Keihou souron” [General Theory of Criminal Law] (1977) p.293
21 The best example is the judgment of Osaka High Court on October 17, 1969, Hanrei Times (244) p.290,
which denied sincere effort and defense of abandonment based on concealment of the trace of a crime.
22 Naito, Ge, Vol. II, p.1331 and Sone, p.255
23 Yamaguchi, p.285; incorporating this factor into factors such as causality between act of abandonmentand consequence of abandonment and requirement for intent of abandonment.

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struction 24. In contrast, another court ruling affirmed the act of abandonment in the casewhere the offender only called the ambulance on the ground that it was the best choice ofaction the offender could take25. Even though the offender called the ambulance, if the offender failed to provide useful information to prevent the completion of the crime, such
failure would be used to deny act of abandonment26.
Accordingly, it seems that these court cases can be organized that collaboration in theact of abandonment is affirmed in the cases where the offender made objectively substantial
contribution to prevent the completion of the crime and had a strong mental tie with theperson who assisted the preventive action. It can be understood that the intentional omissionof feasible action which would help prevent the completion of the crime is not an act of abandonment because it lacks intent to cooperate (not moral sincerity) and it merely solicits oraids other person to prevent completion of the crime. The offender of the case of 1937 may
be considered to have substantially contributed to extinguishing the fire by providing a
crucial cue, but at the same time the offender lacked the intent to cooperate abandonment inthat the offender left the scene without helping the firefighting when it was possible.
It seems that the “sincere effort” should be understood as an issue of cooperativenessof abandonment as explained above which does not involve any normative factor unrelated
to prevention of completion of the crime.
4. Voluntary Action of Abandonment(1) Perspective of Analysis
An act of abandonment must be done “by actor’s own will.” Concerning this requirement, three criteria for judgment have been presented as academic theory today: (a) subjective theory which judges the possibility of continuing the commission of the crime based on
the actor’s subjective view at the point of the act of abandonment27, (b) limited subjective
theory which limits the motive and purpose of abandonment in terms of norm 28, (c) objective
theory which judges possibility of continuing the commission of the crime based on whether the circumstances which the actor recognized may empirically hinder the continuance ofthe commission of the crime.
In addition, separate from the above-mentioned organization, concerning how weshould treat the concept of voluntary action, there are two different perspectives: one is totreat as an issue of reduction of liability and culpability; and the other is to treat as an issueof free will.
24 Judgment of Osaka District Court on June 21, 1984, Hanrei Times (537) p.256

25 Judgment of Tokyo District Court on March 28, 1996, Hanrei Jihou (1596) p.125

26 The above-mentioned judgment of Osaka High Court on October 17, 1969 cited the failure to tell thetype of weapon and detail of the injury to the doctor as a factor to deny act of abandonment.
27 The judgment is made based on what is called Frank’s Rule.
28 Basically, the motive and purpose of abandonment are limited to what is called resipiscence in a broad
sense of the term (including convincement, shame, terror, sympathy, pity and other similar emotions), andlimited subjective theory may include the irrational decision theory (Yamanaka, p.772) which evaluates theirrationality of the offender.

Abandonment of Crime37

If the concept of voluntary action is treated as an issue of free will, the above threetheories affirm the concept of voluntary action only when the relevant act of abandonmentis deemed to be based on free will and they are different only in their criteria on evaluating
free will. From that viewpoint, subjective theory does not deny free will unless the act ofabandonment is made by an absolute coercion or in similar situation, and objective theory
denies free will in relation to and depending on an external factor if any such factor exists
as deterrence, and limited subjective theory affirms free will only when the act of abandonment is made based on resipiscence in a broad sense of the term.
On the other hand, if the concept of voluntary action is treated as an issue of reductionof liability and culpability, subjective theory affirms reduction of liability if the offender isaware of reduction or extinction of risk, and limited subjective theory does not affirm sufficient reduction of liability and culpability unless resipiscence in a broad sense of the term isobserved in the offender as a renunciation of his/her own criminal act, and objective theory
affirms reduction of liability and culpability when an offender abandons commission of thecrime despite he/she could continue the commission of the crime.
(2) Court Precedents
In Old Supreme Court precedents, the court, at first, held that voluntary action was
denied only if the defendant had been forced to abandon the commission of the crime due toan external factor.29 Voluntary action was denied even if such external force was insignificant, and voluntary action was affirmed only if the defendant had abandoned the commission of the crime motivated solely by internal cause without any interference of external
factor.30 However, as people can hardly make a decision entirely without being influenced
by an external factor, such criteria would deny voluntary action virtually in any case. Then,in some court precedents, one denied voluntary action because the motive/cause was generally an obstacle to commission of the crime,31 and another can be understood to have affirmed voluntary action based only on the fact that the motive of abandonment had normative value.32
The Supreme Court seems to have followed the Old Supreme Court in essence; as it
adopted the criteria of generality of an obstacle to commission of the crime,33 and also it
denied voluntary action based on the fact that the motive of abandonment had no normativevalue.
Many lower courts have judged on voluntary action based on the severity of obstacle
29 Judgment of Old Supreme Court on November 8, 1913 Old Supreme Court Records (criminal cases)[Keiroku] Vol. 19, p.1212
30 Judgment of Old Supreme Court on November 3, 1936, Supreme Court Reports (criminal cases) [Keishu] Vol. 16, p.272
31 Judgment of Old Supreme Court on September 21, 1937, Supreme Court Reports (criminal cases)[Keishu] Vol. 16, p.1303
32 Judgment of Old Supreme Court on July 4, 1927, Old Supreme Court Reports (2) (criminal cases) p.17
33 Judgment of Supreme Court on July 9, 1949, Supreme Court Reports (criminal cases) [Keishu] vol. 3,part 7, p.1173; Judgment of Supreme Court on September 10, 1957, Supreme Court Reports (criminal cases)[Keishu] vol. 11, part 9, p.2202

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together with normative value of the motive of abandonment. Unlike the Supreme Court
precedents, few cases denied the voluntary action in lower courts,34 and many judgements
affirmed voluntary action based on the significance of obstacle together with normativevalue of the motive of abandonment35. They affirmed voluntary action even if the normativevalue of motive of abandonment is small in the cases where the commission of the crime isabandoned even if obstacle to continue such commission is small,36 and they also affirmed
voluntary action in an opposite case, i.e., where the normative value of motive of abandonment was high, while the obstacle to continue such commission is significant.37 Further,many judgements have affirmed voluntary action based only on the normative value of theabandonment,38 and the case that can be understood as rejection of voluntary action based
only on the lack of normative value of the motive of abandonment is extremely exceptional39.
In addition, many judgments have denied voluntary action based only on the significance ofobstacle to continue the commission of crime,40 and these judgments can be understood asthey presume the denial of normative value of the motive of abandonment, and thus the
judgments that affirmed voluntary action based only on the lack of obstacle to continue thecommission of crime41 are worth noting42.
(3) Systematic Understanding
The overview of the above-mentioned court precedents provides us with the understanding that the courts (1) considered two factors that reduce liability, namely, whether or
not the circumstances recognized by the actor pose, in general, an impediment in committing the crime and whether or not there is a normative value in the motive of abandonment,and (2) affirmed the voluntary action when the sum of these two factors amounts to a certain
34 Judgment of Saga District Court on June 27, 1960, Lower Courts Reports (criminal cases) [Kakeishu]
vol. 2, part 5 and 6, p.938
35 Judgment of Tokyo High Court on July 14, 1976, Hanrei Jihou (834), p.106; Judgment of Yokohama
District Court’s Kawasaki Branch on September 19, 1987, Monthly Report on Criminal Cases [Keigetsu],
vol. 9, part 9 and 10, p.739; Judgment of Miyazaki District Court’s Miyakonojo Branch on January 25, 1984,
Hanrei Times (525) p.302
36 Judgment of Fukuoka High Court on March 6, 1986, High Courts Report [Koukeishu] vol. 39, part 1,
p.1; Judgment of Osaka District Court on June 18, 1997, Hanrei Jihou (1610) p.155
37 Judgment of Tokyo High Court on July 16, 1987 Hanrei Jihou (1247) p.140; Judgment of Tokyo District
Court on March 28, 1996, Hanrei Jihou (1596) p.125, which affirmed voluntary action in the case where thetwo factors are treated equally.
38 Judgment of Fukuoka District Court’s Iizuka Branch on February 17, 1959, Lower Courts Reports(criminal cases) [Kakeishu] vol. 1, part 2, p.399
39 Judgment of Fukuoka High Court on May 29, 1954, High Courts Criminal Cases Special Report [Hantoku] vol. 26, p.93; Judgment of Osaka High Court on June 10, 1958, [Saitoku] vol. 5, part 7, p.270; Judgmentof Nagoya High Court on July 17 1990, Hanrei Times (739) p.245
40 Judgment of Tokyo High Court on June 20, 1956, [Saitoku] vol. 3, part 13, p.646; Judgment of Tokyo
High Court on August 5, 1964, Tokyo High Court Timely Reports [Toukoukeijihou] vol. 15, part 7 and 8,
p.173
41 Judgment of Urawa District Court on February 27, 1992, Hanrei Times (795) p.263; For the avoidanceof doubt, the court pointed out that the defendant also had compassion for the victim or repenting/resipiscence as secondary motive of abandonment.
42 Judgment of Sapporo High Court on May 10, 2001, Hanrei Times (1089) p.298; in this case, it took time todecide on the abandonment, and the court valued the free will of the defendant at the point of act of abandonment as well as the difficulty of pursuit of the crime in general and resipiscence in the broad sense of the term.

Abandonment of Crime

39

threshold to determine whether it deserves the reduction or exculpation of punishment, and(3) one of the two factors alone can reach such threshold. This way of determining the voluntary action which may be understood as applying objective theory and limited subjective
theory at the same time may be criticized for lacking coherence, but such criticism is basedon the understanding of the precedents in the framework of existing academic theories, and
it is possible to understand the criteria in an holistic manner from the viewpoint of the reduction of liability and culpability. Further, as its nature, the drawback in objective theory
may be overcome because it considers the motive, and at the same time, the drawback inlimited subjective theory may be overcome because it does not limit the motive, and theresulting conclusions may seem reasonable.
If, however, we understand that the courts have merely changed its judgment criteria,
while maintaining the stance that voluntary action is an issue of free will rather than changing the criteria to determine voluntary action from the issue of free will to the issue of reduction of liability and culpability when the earlier judgments of the Old Supreme Court
which determined the voluntary action by whether or not the abandonment was made by any
outside force in the given situations, or the existence of free will began considering the significance of obstacle and resipiscence in a broad sense, the judgments of Supreme Court andother lower courts’ judgments based thereon have still determined the existence of free will.
In that case, the court precedents may be evaluated as they have sought to judge more precisely the significance of the influence of outside force to the prevention of completion of thecrime in the given situations. In other words, it is understood that in this framework, thecourts (1) categorized the motives of abandonment based on their nature into the parts thatare deemed to be attributable to outside force in the situation and the parts that are deemed
to have arisen from the actor’s consciousness free from the circumstances, and (2) concerning the former parts, evaluated the influence of the outside force based on the significanceof obstacle posed by such outside force, and (3) determined the proportion of the parts of the
motive that are deemed to be attributable to outside force to the entire factor of the motiveof abandonment and the degree of influence of the outside force and affirmed the voluntaryaction when the it is determined that the degree of such outside force is smaller than a certain threshold.
5. Judgment of the Case
Based on the above discussions, the judgment of applicability of defense of abandonment in the Case may be understood as follows.
First, regarding the manner of the act of abandonment, the court held that act of abandonment by preventive action was unnecessary by pointing out that there was no risk ofdeath of A by excessive bleeding due to the attack by Y because the approximately 22-cmlong cut wound on A’s right shoulder did not penetrate to the bone at the point when the
pursuit of the crime was abandoned. It may be understood that, in this Case specifically,
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er or not act of abandonment by preventive action was required. Also, concerning the possibility of continuing the crime, the court pointed out “Any further attack could have been
done without difficulty if the Defendants so wanted” and affirmed the possibility of continuing the crime. Therefore, act of abandonment by inaction is affirmed. Furthermore, thecourt pointed out that the Defendants did not believe the first attack on A was criticalenough to kill A, which the intent of abandonment was based on (If the Defendants abandoned further attack because they thought A was successfully killed by the first attack, theintent of abandonment should have been denied.).
As a general theory, this Judgement held “in the phase of uncompleted attempt, thevoluntary abandonment of commission and further pursuit of the crime before the completion of the commission of the crime is adequate to constitute abandoned attempt; in the caseof completed attempt, however, as the act of commission has already been completed by theoffender, in order for defense of abandonment to be affirmed, it is required to prevent thecrime from being completed by voluntary action, and therefore a sincere effort to prevent theconsequence from happening is required” and, on the first glance, it seems to have adopted
the framework under which the court determines whether or not the commission of thecrime is completed and then determines whether or not abandonment by inaction is sufficient. However, the specific judgment is made based not on matters related to the nature of
the commission of the crime at its undertaking but on the actual risk at the point of the actof abandonment as described above.
The Original Judgment required the Defendants’ abandonment by preventive action as
the victim deemed to be in danger of his death by excessive bleeding and denied the Defendants’ sincere effort to prevent the consequence as they only asked Q and others to save thevictim. This problem would be avoided if the risk of death is denied as in this Judgment, but
act of abandonment may be denied if the life of victim is at risk and no feasible first-aid
treatment is provided. On the contrary, the case where abandonment in a cooperative manner is affirmed even if no feasible first-aid treatment is provided seems to be limited to thecases where the risk of death does not exist in the first place as such inaction may be considered to be objective/subjective contribution to the prevention of completion. It seems to be
the reason why the Judgment held that abandonment by inaction was enough as it responded
to the grounds of appeal that the denial of sincere effort in the Original Judgment had misinterpreted the law.
With respect to voluntary action, Defendant X abandoned the pursuit of his crime because (1) he could not bear to see the victim being murdered and (2) he thought that he could
not get A murdered because there would have been no one else but A to take care of hischildren and his wife who should be left alone while he is in jail, which the court judged tobe the Defendant’s own will. The reason (1) is resipiscence in a broad sense of the term.
Regarding the reason (2), if the purpose of abandonment was to use the victim to pursuit the
Defendant’s own benefit, the abandonment would not have reduced his liability and culpability, but for the Defendant who tried to murder the victim because his wife was seeing theAbandonment of Crime

41

victim behind his back, the fact that there would be no one else but the victim to take care of
his children and his wife cannot obviously be an obstacle to pursuit the commission of thecrime, and in that respect, such reason may constitute the base of voluntary action.
The court pointed out that the Defendant X instructed Q and others to take A to thehospital, and A was immediately taken to S National Hospital and received a medical treatment, which increased the credibility of the statement related to the motive of abandonment
by X.
Finally, the abandonment by the Defendants X and Y were jointly subjected to the judgment in this Judgment. Under an analytical view, the primary actor of the murder was the
Defendant Y, and the Defendant X ordered Y to eliminate the physical risk that was detachedfrom X, which may be considered to be abandonment by preventive action, but the abandonment by X and Y were considered to be abandonment by inaction.
Also, with respect to voluntary action, the judgment could have been made on an individual basis, and in that case, the voluntary action of Y could have been denied if the court
had determined that Y abandoned the pursuit because he was ordered by X as such abandonment might have been considered to be abandonment by outside force that poses an obstacle to pursuit the crime, but this Judgment held that defense of abandonment could beapplied to Y when voluntary action is affirmed with regard to X as Y abandoned the pursuitof the crime only following the order of X.
Such judgment concerning voluntary action is reasonable in the case of abandonmentof cooperation by accomplice, and this Judgment seems to suggest that voluntary action is
not a factor in reducing liability that should be judged on an individual basis.

Reference
Review of the Case(1) O hya, Minoru, “Hanhi” [Case criticism], Journal of commentary on important court judgments in 1997 (extra edition of Jurist vol. 666)
(2) Nara, Toshio, “Hanhi” [Case criticism] Hyakusen [the Best 100] vol.1 the second issue(additional volume of Jurist vol.57)
Abandonment in General(3) Kanazawa, Mari, “Chushihan” [Abandonment of crime] in “Keihou no souten”(4) Nozawa, Mitsuru, “Nihon no chushihanron no mondaiten to arubeki gironkeishiki nitsuite”[Issues and the Right Form of Argument regarding the Theories of Abandonment in Japan],Kanagawa Law Review vol. 38, part 2-3(5) Yamanaka, Keiichi, “Chushimisui no kenkyu” [Study of Abandoned Attempt](6) Wada, Toshinori, “Misuihan” Houritsu Jihou, vol. 81, part 6 (2009)
Act of Abandonment(7) Saitoh, Shinji, “Hanhi” [Case criticism] Hyakusen [the Best 100] vol.1 the sixth issue(8) Wada, Toshinori, “Hanhi” [Case criticism] Hyakusen [the Best 100] vol.1 the fifth issue(9) S hiomi, Jun, “Chushihan no kouzou” [Mechanism of Act of Abandonment] in festschrift in

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honor of Kenichi Nakayama on his 70th birthday
Voluntary Action(10) Okumura, Masao, “Hanhi” [Case criticism] Hyakusen [the Best 100] vol.1 the sixth issue(11) Kanazawa, Mari, “Hanhi” [Case criticism] Hyakusen [the Best 100] vol.1 the fifth issue(12) S iomi, Jun, “Chushi no nin’isei” [Voluntary Action in Abandonment], Hanrei Times (702)