When you feel in danger or you instinct tells you someone who harm you, how you can handle the situation is all referred to article of laws and precedent.
If you don’t act based of the requirements of self-defense, no matter how correct decision you make to do to cut your way though from troubles, you have possibility to be charged by prosecutor. This is Japan.
Self-Defense law in Japan is imperfect law whatever you may think. So even if you are picked fight by someone, do not challenge it. Even if you are driven into a corner by a couple of men and feel in danger, do not fight but manage to think the way out of the situation.
All the time, you should keep self-defense law requirements in your mind when you fall into the situation you think you should fight to protect yourself and do not thrust yourself into the a quarrel or a fight that fierce battle is about to occur in front of you, no matter how justifiable reason you have. Prosecutor’s convictions is as bad as what you did is just to make the trouble enlarge.
I know it is nonsense for you to take actions as you consider the requirements law even in urgent situation. However, in Japan, there is no consensus towards how you behave in urgent situation in law. Please check this article “Why Self-Defense in Japan is not permitted smoothly?“, which tells you the difference the way of thinking about “consensus ” between Japan and other countries.
After all, you need to protect yourself from a danger impending to you and also from a law in order not to be a criminal by unjustifiable self-defense. Not
Just preventing you from being caught on a trap of Japanese self-defense law, I want to introduce you the requirements that your self-defense action becomes permissive in Japan.
Contents
5 requirements that permit Self-Defense
When asking the requirements to penal code article 36 that allows self-defense, the following requirements are criteria to judge wether your action is applied to self-defense or not.
- if there is criminal offense from someone
- if the situation is urgent
- if the situation you’re facing is really in need of self-defense
- if you deliver an attack to someone who harm you under an intention of protecting yourself
Unless your situation satisfies all 5 requirements, justice of your self-defense doesn’t get permitted. Self-Defense is a concept that denies illegality on actions which is originally inquired into criminal responsibility so it is very difficult to be permitted.
The definition of Self-Defence
What is “urgent illegal offense”?
Clause 1, article 36 of Penal code mentions “an action that forces a person to do to protect the right of self or others from urgent illegal offense”
This sentence becomes the definition of “Self-Defense”.
illegal offence
This means an action of a person who harms you amounts to illegal infringement.
In short, this is an offense towards your life, your body, your property.
If there is no illegality to an action of a person, self-defense is not permitted.
The situation needs to be exigency
Exigency in this case indicates that acts of infringement impends, which means an offensive acts are being done by a person now. For that reason, danger avoidance acts towards the situation that will have possibility to occur in the future and the situation that has already occurred in the past cannot be applied to Self-Defense.
For example, an act of tying offender’s hands by a rope may probably be thought not to be inquired into criminal responsibility as self-defense but if you conquer the offender this way and end up inflicting an injury on the offender, your self-defense is not permitted and you are contrarily liable to an assault and a charge of inflicting injury.
Even if an offender is such a dangerous person who is swinging a knife around, if a risk of the offender acting violently is thought to be low after an offender is tied up with a rope, because exigency is denied, your additional act is looked as simply an assault.
Moreover, exigency is denied and your intention towards self-defense is denied in also such a situation as you always have knives ready to harm a offender by whom you expect you are attacked and you mount a counterattack when an offender comes to attack you. So your acts are not accepted as Self-Defense.
Japanese justice considers that having a knife ready with an intention to not only protect yourself but also to harm an offender although you already know the fact that the danger that an offender comes to attack you is fully predicable is beyond permissive range on a danger avoidance act.
Meaning of protecting rights of yours and others
What is a right?
A right defined here is a benefit or a right to be protected legally and is generally thought to be person’s life, limb and property. Individual importance of these rights protection are not equal to each other but these are ranked as priority to protect like life → limb → property. Life is more important to be protected than any other rights.
Intention of protecting yourself
Whether or not you have an intention of protecting yourself is one of criteria if being accepted as Self-Defense. As I already said, act with an intention of harming an offender aggressively by taking advantage of the situation that you already understand an offender comes to attack you is not permissive to be accepted as Self-Defense.
Defense intention is judged not whether you have defense intention subjectively in your mind but wether defense intention can be accepted from an objective situation. Therefore, even if you always have a resentment towards someone, your defense intention is not denied from only this viewpoint
Although you have other manners of danger avoidance to do than that you attack an offender when you can foresee offender’s acts beforehand from objective situation, in case you mount a counterattack to and inflict injury on an offender, there is high possibility that your defense intention will be denied even if you have your own justice to protect yourself.
Unavoidable acts needs its necessity and reasonableness to be accepted as “Self-Defense”.
Necessity defined here is
Weather acts for self-defense really needs to be done. Although you have a room to escape from the situation, if you attract an offender aggressively, your defense intention is denied. Therefore defense necessity is the same concept as defense intention here.
Reasonableness defined here is
Whether what you did to an offender has reasonableness or not. This is a criterion if defense acts for danger avoidance can be recognized as minimum necessity defense.
If your defense act was way more violent than that of an offender, your self-defense’s illegality is not denied as unjustifiable self-defense.
For example, if you inflict injure with a knife on a offender who attack you with only his fist, justice of self-defense is difficult to be accepted. In addition, if you attack an inflict on an offender who is about to break your properties, your act is judged as unjustifiable self-defense and you are liable to criminal responsibility.
Even if people who experience martial arts like boxing and Judo do defense act to an offender’s attack with his fist, self-defense requirements judgement becomes quite severe.
If your act is judged as self-defense
If your defense acts are accepted as “Self-Defense”, illegality of your act is denied and you are not liable to criminal responsibility even if a offender is dead, injured. So in case that nobody doubts your act corresponds to self-defense in the result of investigation by police officers and prosecutors, the authority may possibly not carry out legal procedure as non-prosecution case.
However, a criterion of whether your act is accepted as self-defense is not very clear and is different depending on the objective situation.
There is no case that defense act can be clearly recognized as self-defense in the past precedents. Therefore, even if you insist on your justice of self-defense, if your case is grievous, arrest and detention from the authority is inescapable and there is possibility that prosecutors start legal procedures to charge you.
In this case, you’re going to contend at law in court to pursue your guiltless but difficulty to prove you not guilty is beyond your expectations. Even if you win your case and you can prove your not guilty, your burden and mental damage is pretty big.
In contrast, even though your case satisfies the requirements of self-defense, if your self-defense act is lack of reasonableness from the viewpoint of degree of self-defense act, your act’s illegality is not denied and you are convicted of an unjustifiable self-defense.
However, if your case corresponds to unjustifiable case, a court takes the circumstances that your act is originally generated by self-defense into consideration so there is possibility that the penalty of this case will be more reduced than original demanded penalty.
Emergency Evacuation
Emergency Evacuation is a law concept which is similar to self-defense.
Self-defense is a defense act towards illegal urgent infringement and offense. In contrast, emergency evacuation is regardless of whether justice of infringement as an act to avoid dangers that occur timely.
For example, an act of using someone’s bicycle parked around you without permission in order to escape from environmental disaster is regarded as emergency evacuation and you are not charged as theft.
Advice
It is impossible to foresee what kind of crime you face in your life. You may be picked a fight by a drunker or you come across a phantom slasher.
Nobody can take actions as while thinking the requirements of self-defense and even if you get involved with legal procedures if your justice is accepted by a court, your damage is pretty big.
So as much as possible, you feel a danger instinctively, you don’t get close to the place where your instinct refuse to go
However, if you’re under arrest, you explain your detailed situation to a police officer and a prosecutor, and ask a lawyer to solve the troubles.