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Abstract
Japan is a nation of 380,000 square kilometers, with a population of 126 million. The criminal law endeavors to keep the society safer, cleaner, and more efficient. It touches many aspects of people's lives deeply. My task here is to describe the development of criminal law in Japan from 1961 until the present and, hopefully, try to foresee somewhat the future progress in the twenty-first century.
This article focuses on the criminal justice consequences of the nuclear meltdown at Fukushima that was precipitated by the earthquake and tsunami of March 11, 2011. Through a process of “mandatory prosecution” initiated by Japan's unique Prosecution Review Commissions, three executives of the Tokyo Electric Power Company were charged with criminal negligence in 2015-2016. They were acquitted at trial in 2019 when the Tokyo District Court concluded there was insufficient evidence to convict. Following this verdict, Japanese prosecutors essentially said “we told you so – these cases should not have been prosecuted.” But we argue that a courtroom loss does not mean that the case should never have been brought, for the TEPCO trial and the criminal process that preceded it performed some welcome functions. Most notably, this criminal case revealed many facts that were previously unknown, concealed, or denied, and it clarified the truth about the Fukushima meltdown by exposing some of TEPCO's claims as nonsense. At the same time, this case study illustrates the limits of the criminal sanction and the difficulty of controlling corporate crime in the modern world.
This text contains the latest edition of this book. It covers the basis of the Japanese legal system, the civil code, business related laws, and other laws including criminal law and procedure, and foreign relations law. Since the last edition, Japanese law has undergone major reform all of which is reflected in the new text. In particular, the new edition covers the new company law and the Financial Products Trading Law, both of which have been completely overhauled. After the 'lost decade' following the collapse of the 'bubble economy' in 1990, Japan has gone through a major reform - deregulation or 'regulatory reform'. Accordingly, major changes took place in almost every area of law. There was a large-scale 'Justice System Reform' which encompassed various changes in the court system, the introduction of lay assessors in the criminal procedure, a new law school system, etc. Company law, which was embodied in the Commercial Code, was completely overhauled under a different concept and became a separate law - the Company Law of 2005. Securities and Exchange Law was replaced by the Financial Instruments and Exchange Law in 2006. Even the Civil Code, which had remained more or less unchanged (except for family and succession) since the late 19th century, has gone through significant changes. Certainly there are many positive results coming out of these reforms, but also there have been some doubtful changes. Thee outcome of the reforms of the past decade is yet to be assessed. These changes and their impact are covered in this book.
This Article was delivered by Justice Dando as the Jerome Hall Lecture at Indiana University School of Law-Bloomington on April 14, 1996.
In this preview of what is to come in the California Law Review's December 2000 Twentieth Century Symposium Issue, Professor Kadish reflects back on what he considers the past half-century's most significant developments in the substantive criminal law. The most significant, Kadish argues, is the 1962 promulgation of the Model Penal Code - a document that inspired important scholarly inquiry and a wave of criminal law codification in the states, and continues to provide highly persuasive authority to common law judges. Next, Kadish traces developments in the broad area of "ascertaining blame." The author laments the persistence of notions of strict liability in the criminal law, including the survival of the felony-murder rule. Kadish also follows the circular path of the insanity defense from the early prevalence of the M'Naghten rule through various reforms and then back again. Also highlighted is an important development that wasn't: the failure of the Supreme Court to constitutionalize a fault requirement in criminal law. In the next Part, Kadish identifies areas in which the criminal law has either advanced or retreated, focusing on both the decline in "morals" offenses such as prosecutions of consensual sexual activity, and the great expansion of federal crimes, including Congress's enactment of the RICO statute and the nation's war on drugs. Kadish then turns to the impact of feminism, noting the effect of that social movement on the law of rape and the emergence of the "battered woman's syndrome" defense. Last, Kadish notes with disapproval the recent trend away from rehabilitation and toward severe and retributive punishment for those convicted of crimes.
Each American jurisdiction has a criminal code. Most jurisdictions have substantially restructured and improved their codes since 1962, when the American Law Institute first promulgated its Model Penal Code. Such reform efforts are worthwhile, especially in criminal law, because many advantages flow from the thoughtful codification of criminal law rules. By compiling all criminal rules in a single comprehensive source, codification makes access to these rules easier, increasing the chance that citizens will know what the criminal law commands. A codified rule has the advantage of increased precision, which is likely to increase the uniformity of its application. Uncodified rules--or, even worse, unenacted rules, such as common-law offenses--often suffer from vagueness and ambiguity, which increase the potential for bias, abuse, and arbitrariness in their application. The articulation of criminal law rules in an integrated code also makes it easier to detect internal inconsistencies and irrationalities among the rules because clear and unified legislative expression makes the specific demands and effects of each rule, and the relationship among the rules, apparent in a way that expression through judicial opinions or uncoordinated legislation cannot. Finally, requiring statutory enactment of criminal rules assures that the criminalization authority remains the province of the legislature, as is desirable in a democratic society. The absence of a statutory provision to control a significant component of the criminal law amounts to a de facto delegation of criminalization power to the courts. Crime and criminal justice are among the few perennially "hot" political issues to which legislatures are sure to pay frequent and close attention. But the virtues of codification are not always, or even usually, central to legislatures when they address these issues. No politician runs for office on a platform to "increase internal consistency within the criminal law." Thus, while criminal law attracts much legislative attention, criminal codes attract little. As a result, the advantages of codification commonly are realized only imperfectly in American codes. Indeed, many American criminal codes are not true codes at all, in the modern sense of cohesive, well-structured, and self-contained statutory schemes. Rather, they are mere collections of statutory provisions similar to the generalized legislative "codes" of the last century and before. In many instances, even states that adopted modern, systematic criminal codes-- typically during the recodification wave of the 1960s and 1970s--have since altered their codes through ad hoc amendment, making them dramatically less systematic and internally consistent. Often, the deterioration of a code results simply from ignorance of the structure and operation that the code's original drafters intended. In other cases, the deterioration is the product of politics, as interest groups of one sort or another arrange special provisions of one kind or another.Available for download at http://ssrn.com/abstract=183290