Waseda University Institute of Comparative Law

    Japanese Criminal Law has undergone frequent amendments at an unimaginable rate since the past 10 years. Conventionally, the Japanese criminal justice has responded with judicial interpretations when new issues based on technical innovations arise. As compared to Germany and other countries, the legality principle in Japan is inclined to be less rigid. However, currently, legislation is playing an increasingly significant role. Recent criminal legislation mostly involves the enactment of new offence types and amendments that toughen punishment. It is believed that tougher punishment reflects public opinion. Nevertheless the modifications are rather rapid.

     The trend of enacting amendments involving tougher punishement is seen prominently in traffic violations. A legislation which further promoted this tendency was enacted in 2007. The primary move is the newly constituted ‘Negligent automotive homicide and injury’ (Clause 2, Article 211, Criminal Law). The following explanation was given by the legislative authority: Recent automobile accidents resulting in deaths or injuries include malignant and dangerous driving cases or cases with many deaths and injuries; however, these were not considered Vehicular Homicide and Injury (Article 208-2, Criminal Law) offences. Taking all this into consideration, the new punishment exclusively for automobiles was enacted. The provision is as following: ‘One who has caused death or injury of a person without exercising due care necessary for driving an automobile shall be sentenced to imprisonment of 7 years or less, or a fine of 1 million yen or less. However, if the inflicted injury is not severe, in consideration of the circumstances, one may be exempt from the penalty.’

     Secondly, two-wheeled motor vehicle and small motor vehicle were included as subjects of the ‘Vehicular Homicide and Injury’. The enactment of the ‘Vehicular homicide and injury’ legislation was a catalyst that rejuvenated modern criminal justice, but at the time of the amendment of the Criminal Law, the subject was limited to automobiles with four or more wheels. Nevertheless, the legislative authority extended the subjects of operation to all motor vehicles to be punishable under the Vehicular Homicide and Injury, by reason of the recent emergence of traffic accidents in which two-wheeled motor vehicles including small motor vehicles where involved, resulting in severe consequences to the victims due to malignant driving such as driving under the influence of alcohol (drunken driving), ignoring traffic lights, and significant speeding.

     Legislation extending penalties as observed above is not limited to these two legislations enacted in 2007, but is something which has been present in the legislation since last several years. Although it is possible to somewhat comprehend this move from the democratic perspective as reflecting the public opinion, critical opinions that facile toughening of penalties from punitive emotions is to be avoided are often heard from Criminal Law academia.

     In view of an insight from criminology, which is an empirical science, the effect of crime suppression by toughening penalties allows room for doubt. It is important to consider non-penalty methods, for instance, to reduce accidents caused by drunken driving, installment of ignition interlock devices (device that prevents engine from starting when it detects alcohol in the air exhaled from the driver) should be made complusary.