1The present report is aimed at providing basic information concerning legislation and its operation related to criminal responsibility of minors in Japan, by answering the concrete questions presented by Professor Reynald OTTENHOF, General Reporter of the Preparatory Colloquium for the XVII. International Congress of Penal Law of the AIDP on Section I, "Criminal Responsibility of Minors in National and International Legal Order".

I. Justification of the Principle

21. The Japanese Penal Code provides that the act of a person under the age of fourteen shall not be punished (Article 41). Moreover, according to Japanese Juvenile Law, in so far as the juvenile is under the age of twenty, the Family Court in principle shall not transfer the case to the Public Prosecutor for imposing a criminal disposition, except for certain cases (Article 20). Thus, under current law, even those who possess criminal capacity should be treated with protective (educational) measures in principle, and be punished criminally only in some exceptional cases.

32. In Japan, criminal capacity is generally defined as an ability to distinguish right from wrong and to control one’s activities on the basis of that distinction. That the Penal Code denies the criminal capability of minors under the age of fourteen, however, is not interpreted as meaning that persons under the age of fourteen lack such abilities. Rather, it is accepted that the Penal Code is based upon a viewpoint of criminal policy that it is better to abstain from punishing such minors in order to prevent future crimes. Moreover, Juvenile Law, based on “the aim of the healthy growth and development of juveniles”(Article 1), gives priority to protective dispositions which aim at rehabilitation and environmental adjustment of the juvenile delinquent over criminal penalties, even for those who have reached the age of criminal liability.

43. While there is a general consensus that the fundamental ideal and basic framework concerning juvenile justice should be maintained, the revised Juvenile Law that passed in November 2000 (hereafter referred to as the revised Juvenile Law) partially modified the current system to address some problems indicated from different perspectives. Briefly, the revision includes three points : ( 1) to partially expand the range of possible punishment of juveniles (refer to question I. 5); ( 2) to adjust the factfinding process in the Family Court (refer to question III. 2; IV. 1); and ( 3) to protect victims (refer to question III. 5).

54. Under the Juvenile Law, the term “juvenile delinquency” is used to describe not only “juvenile crime” but also other forms of misconduct committed by juveniles. According to the Law, there are three types of “juvenile delinquent” (Article 3):

1. Any juvenile above the age of fourteen who commits a crime.
   Any juvenile under the age of fourteen who performs an act in violation of any criminal law or ordinance.
   Any juvenile under the age of twenty of whom there are apprehensions that he/she may commit a crime or perform an act in violation of a criminal law or ordinance in view of his/her character or surroundings, because of the existence of the following reasons;
   1. That he/she has a propensity to disobey the reasonable control of his/her guardian;
      That he/she stays away from home without good reason;
      That he/she associates with a person of criminal tendency or an immoral person, or frequents any place of dubious reputation;
      That he/she has the propensity to perform any act injurious to his/her own or others’ morals.

6The concept of “juvenile crime” in question refers only to ( 1), that is, crime committed by juveniles who have reached the age of liability.

75. The revised Juvenile Law, to a certain extent, expanded the range of possible punishment of juveniles. A series of serious crimes committed by minors hardened public opinion toward tougher punishment of juveniles and it became a spur to the revisions. The main revisions are as follows :
(1) As a general rule, the Family Court should transfer the case to the Public Prosecutor, by means of a ruling, when the juvenile over the age of sixteen has caused the death of the victim by acts done with criminal intent. (However, the court may not perform such a transfer, if the court judges that measures other than criminal disposition are proper for the juvenile considering the result of the investigation into his/her motive and the circumstances of the offence, the situation after the offence, the personality, age and behavior of the juvenile, and also the juvenile’s environment.) [Article 20 ( 2)].

8(2) Previously, the Family Court was not permitted to transfer the case to the Public Prosecutor, if the juvenile had not reached the age of sixteen at the time of the transfer. Consequently, even though fourteen- and fifteen-year-old juveniles were held by the criminal law to possess criminal capacity, they were actually excluded from the possibility of a criminal disposition. The revised Juvenile Law unified the age of criminal capacity and of possible transfer to the Public Prosecutor, by abolishing the age limit on transfer.

96. In Japan, there is no system that can impose criminal responsibility upon parents for the delinquent behavior of their children. However, the parents may incur a civil responsibility of restitution based on civil litigation that is independent of either the criminal or juvenile procedure.

10In addition, the revised Juvenile Law added a new provision concerning the responsibility of guardians as follows :
When the Family Court finds it necessary, it may, during the investigation or the hearing, take a measure to admonish or guide the guardian in person, or have the Family Court Investigator take such measures, for the purpose of making him/her realize the responsibility for the custody of the juvenile, and to prevent the juvenile’s delinquency (Article 25-2).

II. Categories of Age

111. The Penal Code defines the age above fourteen as the age of criminal capacity. However, as mentioned above, under the previous Juvenile Law, the Family Court was prohibited to transfer a case to the Public Prosecutor, if the offender was under sixteen years of age at the time of the transfer. Consequently, for juveniles who were fourteen or fifteen years old, it was actually impossible to impose a criminal disposition, despite the fact that they were affirmed by the criminal law to possess criminal capacity. The revised Juvenile Law unified the age of criminal capacity and of possible transfer to the Public Prosecutor, by abolishing the age limit on the transfer.

122. With respect to criminal dispositions, the Penal Code uniformly denies the criminal capacity of minors under the age of fourteen. With respect to protective dispositions, however, there is no such minimum level of chronological age under which the minor cannot receive protective measures. Protective measures, rather, are decided individually by the particular proneness of a juvenile to commit a delinquent act in the future and the necessity of having protective measures imposed by the government instead of the guardian, taking into account such factors as delinquent conduct, personal history, temperament, family background, and environment of the juvenile, etc.

133. For the juvenile delinquent mentioned in question I. 4, the Family Court can decide one of the following protective dispositions [Juvenile Law art. 24 ( 1)]:
(1) To place a juvenile under the probationary supervision of the Probation Office, ( 2) To commit a juvenile to a Child Education and Training Home ( jidojiritsushienshisetsu) or a Home for Dependent Children ( jidoyogo-shisetsu). Both of these institutions are provided under the Child Welfare Law. The Child Education and Training Homes are established by the National or Prefectural government, or private persons to take care of children who are delinquents or likely to become delinquents, while the Home for Dependent Children is a private or prefectural institution designed to care for dependent, abused or neglected children.

14(3) To commit a juvenile to a Juvenile Training School ( shonen-in). It is an institution of the Ministry of Justice that gives corrective education to juveniles committed by the Family Court.

15In addition, in case the juvenile who committed a crime is transferred to the Public Prosecutor and subsequently given a penalty by the Criminal Court, there are several specific treatments with regard to sentencing (refer to question IV. 8,9).

164. Under the current law, there is no specific category of “young adult” besides the concept of “juvenile” and “adult.” In the 1960’s, there existed a movement to create a category of “young adult,” above eighteen and under twenty-three years of age, whose procedure would in principle follow the adult criminal procedure. One of the reasons supporting such a suggestion was the increase in violent crimes committed by elder juveniles. However, as such crimes began to decrease after the 1960’s, and as the delinquencies committed by younger juveniles have become the main concern of society, the movement to create a category of “young adult” has gradually abated.

III. Judicial Establishment of Criminal Responsibility of Minors

171. The Family Court holds jurisdiction over all delinquent juveniles under the age of twenty who are within the categories mentioned in question I. 4. With respect to juvenile criminal cases, the Family Court has original jurisdiction (Juvenile Law art. 41; art. 42; art. 20). Thus, the Public Prosecutor, after completing the investigation, must send the case to the Family Court rather than the Criminal Court (cases involving minor offenses can be sent directly to the Family Court by the police officer). The power of the prosecutor to suspend a prosecution, which is allowed in adult cases, is not permitted in juvenile cases. This is based on an assumption that the primary power of choosing between protective measures and punishment must be given to the Family Court, which is designed to investigate the personality and environment of the juvenile.

18With respect to cases involving juveniles under the age of fourteen, the priority is given to the measures provided by the Child Welfare Law. Thus, juveniles under the age of fourteen come under the jurisdiction of the Family Court only when the Prefectural Governor or the Chief of the Child Guidance Center refers them to the Family Court [Juvenile Law art. 3 ( 2)].

19Like in adult criminal process, there is no jury system in the juvenile process. Usually, the juvenile hearing is conducted by one professional judge, but in some complex cases, it can be conducted by a collegiate body composed of three professional judges, depending on the discretion of the Family Court (Court Law art. 31-4).

202. The proceeding in family court consists mainly of the investigation and the hearing (regarding the investigation, refer to the next question). Corresponding to the substantive requirement for protective disposition, which is composed of ( 1) the delinquent acts and ( 2) the necessity of the protective disposition, the object of the hearing also includes these same two elements. The juvenile hearing is not public. Those present at the hearing include the judge, the court clerk, the juvenile, the guardians of the juvenile, and the Family Court Investigator. If the juvenile elects to be represented by an Attendant (who in most cases are lawyers), then the Attendant also has a right to attend the hearing.

21Previously, one of the biggest differences between the juvenile hearing and the adult criminal trial was that Public Prosecutors were completely excluded from the juvenile hearing. It was assumed that the presence of the prosecutor would make the juvenile hearing become an adversary proceeding, and such a proceeding would be not desirable for educating juveniles.

22Recently, however, the fact-finding procedure in the Family Court has come to be challenged, especially in cases where the juvenile denies delinquency. In such cases, the judge has had to put himself/herself into conflict with the juvenile, by performing the role of the prosecutor to some degree. It has been an embarrassment to judges and has led to allegations of unfairness by juveniles.

23To address these challenges, the revised Juvenile Law (as mentioned earlier), for the purpose of “proper finding of the facts constituting alleged delinquency,” permits the prosecutor to be involved in the proceedings in the Family Court in the following cases :
The Family Court may, by means of a ruling, have a Public Prosecutor attend the hearing, when it is necessary to find the facts constituting the alleged delinquency, with respect to the case involving the following crimes committed by a juvenile above the age of fourteen : ( 1) crimes which resulted in the death of the victim by acts done with criminal intent; and (2) crimes punishable by the death penalty or imprisonment for life or for not less than two years [Article 22-2(1)].

24The revised Juvenile Law also provides that, in case the Family Court permits a Prosecutor to be involved in the proceedings, the court must appoint a lawyer as the Attendant of the juvenile if such a person is not retained on the juvenile’s behalf [Article 23-3(1)].

25Aside from the participants stated above, neither a jury nor non-professional judges are allowed to take part in the juvenile hearing.

263. The existence of special investigation procedures is another important feature that differentiates the procedure of the Family Court from other Criminal Procedures.

27The Family Court must make an investigation into the case prior to the hearing (Juvenile Law art. 8). When a case is filed in the Family Court, the judge assigns the case to the Family Court Investigator, giving him directions for his/her investigation. The Investigator then undertakes precise social inquiries into the personality, personal history, family background, and environment of the juvenile. Upon completion of these inquiries, the Investigator submits a report to the judge, attaching to it his/her opinion related to the treatment and disposition of the juvenile.

28In addition, the Family Court can, by a decision of “protective detention,” refer the juvenile to the Juvenile Classification Home for a temperament classification. The Juvenile Classification Home, during the detention period, conducts the classification upon medical, psychological, and other technical knowledge, and then reports the results to the Family Court.

294. The fact-finding procedure and the disposition-deciding procedure are not clearly divided into two distinct stages in the juvenile process. However, in the practice of the Family Court, whenever the juvenile, during the investigation, denies the facts constituting the alleged delinquency, the court usually suspends the investigation in principle until it completes the fact-finding proceeding, based on concern that the investigation may involve various matters concerning the privacy of the juvenile as well as his family.

305. Reflecting recent emphasis on protecting crime victims, the revised Juvenile Law contains the following three provisions concerning the victim’s protection in the juvenile process :
The first is notification of the victim about the juvenile hearing. Previously, it was not easy for the victim to obtain information concerning the case, because of the non-public nature of the juvenile hearing. According to the new law, if the Family Court has rendered a final disposition in a case involving a juvenile above the age of fourteen who has committed a crime, or a juvenile under the age of fourteen who has performed an act in violation of a criminal law or ordinance, the court may, if the victim or his/her legal representative requests it, notify the victim about : ( 1) the name and address of the juvenile and his legal representative; and (2) the date and the summary of reasons of the final disposition [Article 31-2(1)].

31The second is access to inspect or copy the record of the hearing. This provision is mainly intended to provide the victim with a convenient method for asserting the right to claim compensation for damages. According to the new law, if the victim or his/her legal representative applies to inspect or copy the record of the case involving a juvenile who is alleged to commit a crime, the Family Court may permit them to conduct such inspection or make such a copy, to the extent the court finds it necessary to perfect the victim’s right to claim compensation for damages, and if it would not have an inappropriate influence upon the healthy growth and development of the juvenile (Article 5-2).

32Under current law, victims can make a claim for damages only before the Civil Court. The family court has no system to allow the victim to ask directly for reparation, except to provide the victims with convenient access to information (as stated above) to support their claim for damages in the Civil Court.

33The third is the opportunity of the victim to express an opinion about the case. According to the revised Juvenile Law, whenever the victim applies to state his/her feelings and other opinions regarding the case, the Family Court may hold a hearing in person, or may have the Family Court Investigator hold such a hearing, except when the court finds it inappropriate to hold such a hearing considering the nature of the case and so on (Article 9-2).

IV. Sanctions and Measures applicable

341. The Family Court may, when it is necessary for conducting a hearing, order a juvenile to be committed to the Juvenile Classification Home for protective detention [Juvenile Law art. 17( 1)]. The measure of protective detention serves two functions : ( 1) securing the juvenile for the investigation and the hearing (similar to detention in the adult criminal procedure), and ( 2) classifying the temperament of the juvenile based on investigation and some technical knowledge.

35Previously the maximum detention period was four weeks. However, the revised Juvenile Law extended this period to eight weeks to address the problem that the hearing sometimes could not be completed within four weeks, especially in cases where the juvenile denied the facts constituting the alleged delinquency. According to the new law, protective detention may be extended only when the Family Court decides to conduct the examination of a witness, expert examination or inspection with respect to fact-finding, and only in a case involving a juvenile above the age of fourteen who is alleged to have committed a crime, and only if the case involves an offence punishable by the death penalty or imprisonment with or without forced labor [Juvenile Law art. 17( 4)].

36With respect to the extension of the detention period, the Juvenile Law also created a new procedure under which a dissatisfied juvenile, or his/her legal representative or Attendant, may lodge an objection with the Family Court against the decisions for protective detention and for its renewal (Article17-2).

37In addition, as one of the important measures taken before final disposition, the Family Court may place the juvenile under the supervision of the Family Court Investigator for a certain period, suspending final disposition (Article 25). This intermediate disposition, in a broad sense, is one of the measures used to further investigation and help determine the final protective disposition.

382. As the result of the hearing, the Family Court shall determine one of the following protective dispositions, when it finds that the protective measure is appropriate for the juvenile : (1) to place the juvenile under the supervision of the Probation Office; (2) to commit the juvenile to the Child Education and Training Home or the Home for Dependent Children; (3) to commit the juvenile to the Juvenile Training School (refer to question II. 3).

39On the other hand, with respect to a case involving an offence punishable by the death penalty, or by imprisonment with or without forced labor, the Family Court may transfer the case to the Public Prosecutor, if the court finds it proper to impose a criminal disposition depending on the investigation. Moreover, as mentioned earlier, when the juvenile over the age of sixteen has caused the death of the victim by acts done with criminal intent, the Family Court, as a general rule, should transfer the case to the Public Prosecutor.

40The Public Prosecutor who receives a case from the Family Court, as a general rule, must institute a prosecution. The proceedings subsequent to the commencement of the prosecution are approximately same as for an adult, except for the specific provisions concerning juvenile sentencing (refer to questions 8,9).

413. The number of juvenile delinquents finally disposed of by the Family Court in 2000 was 250,862. As for the dispositions among this total number, dismissal without hearing and discharge after hearing comprised the major part, accounting for 46.5 percent and 24.7 percent respectively. The percentage of juveniles who received protective disposition and who were transferred to the Public Prosecutor was 23.2 percent and 5.6 percent respectively.

42Among those who received protective disposition, 88.8 percent were placed under probationary supervision, 10.6 percent were committed to the Juvenile Training School, and 0.7 percent were committed to the Child Education and Training Home or the Home for Dependent Children.

43As for those who were transferred to the Public Prosecutor, 68.7 percent of the transfers were based on a finding by the Family Court that it was proper to impose a criminal disposition, and the other 31.3 percent were based on the fact that the juvenile’s age was over twenty. In addition, of those who were transferred to the Public Prosecutor based on a finding by the Family Court that it was proper to impose a criminal disposition, 96.7 percent were traffic violators.

44These data illustrate the extreme tendency of the Japanese juvenile justice system to refrain from imposing criminal punishment against minors, and even when imposing a protective disposition, to refrain from committing the juvenile to an institution.

454. Protective dispositions are decided individually by the proneness of a particular juvenile to commit a delinquent act in the future and the necessity of protective measures taken by the government instead of the guardian, taking into account such factors as delinquent conduct, personal history, temperament, family background, environment of the juvenile, etc.

46The decision to transfer the juvenile to the Public Prosecutor is based on the judgment of the Family Court that it is difficult to reform the juvenile by protective measures, or that it is relatively proper to impose a criminal disposition, considering the nature and social impact of the offence.

47With respect to criminal dispositions imposed by the Criminal Court, refer to question IV. 8,9.

485. While the defense of lack of criminal capacity is denied in the Family Court, it is available to juveniles who are tried in the Criminal Court.

49In addition, there are some means that allow for more flexible executions of the disposition, while such means do not belong to the authority of the court.

50With respect to protective dispositions, although the period of such protective disposition is until the age of twenty in principle, it is possible to have the probation cancelled, or to be paroled from the Juvenile Training School, in accordance with the success of the juvenile’s rehabilitation.

51With respect to criminal dispositions, aside from the suspension of execution of sentence by the criminal court, there also exists a special parole system whose conditions are largely moderate when compared with the adult system. Fore example, parole may be granted after a juvenile prisoner serves seven years, in the case of a life term (for adults, this would be ten years), or after the juvenile prisoner serves onethird of the minimum period, in case of an indeterminate penalty (for adults, there are no indeterminate penalties, so this would be one-third of the longer, fixed penalty) (Juvenile Law art. 58).

526. The rehabilitation of juveniles conducted in correctional institutions, including the Juvenile Training School, Juvenile Prison and Juvenile Classification Home, is guided and supervised by the Correction Bureau of the Ministry of Justice. On the other hand, the community-based rehabilitation of those juveniles who are released on parole from correctional institutions and placed under supervision of probation officer is supervised by the Rehabilitation Bureau of the Ministry Justice.

53There is no system similar to a magistrate. However, the judge and the investigator of the Family Court may visit a juvenile who is under protective control for observation, and make some necessary recommendations to the agency involved.

547. As mentioned earlier, the current Juvenile Law, in principle, addresses juvenile crime with protective dispositions, except for certain circumstances. It is based on an assumption that, with respect to the juvenile, “the healthy growth and development of juveniles” should be preferred to blame and punishment.

558. According to the Juvenile Law, in case a person under the age of eighteen at the time of his commission of an offence is to be punished with the death penalty, he/she shall be sentenced instead to a life term in prison [Article 51(1)].

569. In case a person under the age of eighteen at the time of his commission of an offence is to be sentenced with a life term in prison, he/she may be sentenced instead to imprisonment, with or without forced labor, for ten years or more but not more than fifteen years [Article 51(2)].

57In addition, the Juvenile Law employs an indeterminate sentencing system for juveniles (Article 52). In case a juvenile is to be punished with imprisonment, with or without forced labor, for not less than three years, he/she shall be given an indeterminate sentence prescribing the maximum and minimum period. And in such case, the term shall not exceed five years in the minimum and ten years in the maximum.

V. International Aspects

581. Japan ratified the Convention on the Rights of the Child in 1994. Article 12, Article 37, Article 40, etc, of the Convention are particularly important in relation to juvenile criminal justice and correction.

592. With regard to the ranking of the validity of a convention in the internal legal order, in Japan such a convention takes priority over the internal law except for the Constitution. The same rule applies to the Convention on the Rights of the Child.

603. According to the opinion of the Japanese Government, it is not necessary to undertake new legislative measures for implementation of the Convention on the Rights of the Child, because current Japanese legislation and its effects have already fully satisfied the requirement of the Convention.

61With respect to the possibility of direct application in the court, while there has not yet been a particular judicial precedent affirming the direct application of said Convention, as a general rule, the court may directly apply any provision of a convention in so far as such a provision satisfies certain criteria. Thus, in case the court finds that the internal law interferes with the Convention on the Rights of the Child, the relevant internal law would be rendered null and void, or be modified.

624. There is no particular disposition concerning criminal responsibility for foreign minors.

63According to a lower-court precedent, in case the court cannot determine the age of a foreigner, the court should treat the person as a juvenile in favor of the foreigner and apply the Juvenile Law. But there is also an opposing opinion insisting that, to extent the foreigner cannot prove his age, the court should apply the Code of Criminal Procedure but not the Juvenile Law, because the Juvenile Law is a special law to the Code of Criminal Procedure.

645. There is no special disposition concerning police, judicial and penitentiary cooperation that applies only to minors who are involved in a criminal proceeding.