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runour or report is true and makes, publishes or circulates it without any such intent as aforesaid.]

506. Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two Sears, or with fine, or with both ; and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life), or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

507. Whoever commits the offence of criminal intimidation by an anonymous conmunication, or having taken precaution to conceal the name or abode of the person from whom the threat comes, shall be punished with imprisonment of either description for a term which may extend to two years, in addition to the punishment provided for the offence by the last preceding section. 508. Whoever voluntarily causes or attempts to cause any person to do any. thing which that person is not legally bound to do, or to omit to do anything which he is legally entitled to do, by inducing or attempting to induce that per: son to believe that he or any person in whom he is interested will become or will le rendered by some act of the offender an object of Divine displeasure if he does not do the thing which it is the object of the offender to cause him to do, or if he does the thing which it is the object of the offender to cause him to omit, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. Illustrations

(a) A sits dhurna at Z's door with the intention of causing it to be believed that, by so sitting, he renders Z an object of Divine displeasure. A has committed the offence defined in this section.

(6) A threatens Z that, unless Z performs a certain act, A will kill one of A's own children, under such circumstances that the killing would be believed to render Z an object of Divine displeasure. A has committed the offence defined in this section.

509. Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

510. Whoever, in a state of intoxication, appears in any public place, or in any place which it as a trespass in him to enter, and there conducts himself in such a manner as to cause annoyance to any person, shall be punished with simple imprisonment for a term which may extend to twenty-four hours, or with fine which may extend to ten rupees, or with both.

Chapter XXIII

Of Attempts to commit Offences 511. Whoever attempts to commit an offence punishable by this Code with ' [imprisonment for life) or imprisonment, or to cause an offence to be comuitted, and in such attempt does any act towards the commission of the offence, shall

, where no express provision is made by this Code for the punishment of och attempt, be punished with ? [imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence), or with such fine as is provided for the offence, or with

both.

Illustrations

(a) A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box, that there is no jewel in it. He has done an act trwards the commission of theft, and therefore is guilty under this section.

Subs. by Act 26 of 1955, 8. 117 and Sch., for "transportation”.
Subs., ibid., for certain words.

57-868–72-pt. 3-6-43

(6) A makes an attempt to pick the pocket of Z by thrusting his hand into Z's pocket. A fails in the attempt in consequence of Z's having nothing in his pocket. A is guilty under this section.

JAPAN

The present Penal Code of Japan has been in force since 1908. While several important revisions have been made in the Code itself, it still governs most of the fundamental aspects of the present-day administration of criminal justice in Japan. In 1961, the Japanese Government after a 5 year study by the Preparatory Commission, published A Preparatory Draft for the Revised Penal Code (referred to as the Preparatory Draft Code) which has yet to be enacted. The questionnaire will be answered largely on the basis of the present Penal Code unless significant changes are proposed in the Preparatory Draft Code.

1. The present Code consisting of the General Provisions (Part I) and Crimes (Part II) does not provide a sentencing system which would maintain the mechanical correlation between detailed degree of penalty and detailed degree of apparant gravity of criminal acts. Part I of the Preparatory Draft Code, however, contains a chapter dealing with sentencing (Articles 7 to 58; for more information see question No. 9 (a) below).

2. No numbering system is used ; new articles are added to the original ones, e.g., Article 100, Article 100–1, Article 100-3, etc.

3. One of the two types of a state of mind, intent or negligence, is recognized as an essential element of any crime. In most cases, criminal intent is required ; at a minimum, negligence is necessary. There is no statutory definition of either intent or negligence. Article 38 of the present Code briefly states that "an act done without criminal intent is not punishable except as otherwise specifically provided by statute" (also Article 18 of the Preparatory Code). The present Code specifically enumerates the following seven negligences as punishable : (1) Negligent fire (Articles 116 and 117–2); (2) Negligent explosion (Article 117); (3) Negligent flooding (Article 122); (4) Negligent obstruction of traffic (Article 129); (5) Negligent injury (Article 209); (6) Negligent homicide (Article 210); and (7) Causing death or personal injury through professional or gross negligence (Article 211).

In the case of intent, the Penal Code imposes a heavier penalty than in the case of negligence. A person who fails to use such care as is required in the conduct of his profession or occupation and thereby kills or injures another is considered to have committed a more serious offense and is dealt with more severely; a person who is guilty of gross negligence is treated similarly.

The present Penal Code, as well as the Preparatory Draft Code relating to the subjective element of crimes are intended to extend the coverage of the culpability principle as a restraint on the imposition of punishment (sentencing). The lack of specificity of the offender's criminal intent, defects in his mental capacity short of insanity, environmental factors contributing to the commission of crime, etc. are all considered by the sentencing court as circumstances mitigating the defendants' blameworthiness or culpability. (Juhei Takeuchi, “Introduction," A Preparatory Draft for the Revised Penal Code of Japan, 1961, South Hackensack, N.J., Fred B. Rothman & Co., 1964, p. 4).

4. Neither the present Code nor the Preparatory Draft Code provide articles relating to causation.

5. On the basis of the continental European concept of diminished responsibility, the punishment of a mentally disordered person may be reduced or acquittal may be granted as stated in Article 39 of the present Code: "an act of a person of unsound mind is not punishable. Punishment shall be reduced for acts of weak-minded persons."

The present Code's concern with the treatment of the offender is exclusively based upon punishment in the traditional sense and upon its derivatives such as conditional release and suspension of the execution of sentence including probation. Accordingly, the court loses its jurisdiction over an insane and dangerous defendant once it has acquitted him. Likewise, a mentally abnormal offender entitled to reduced punishment may be released from prison before his mental condition is improved and his criminal propensity corrected.

Under the Mental Health Law of 1950, the governor of a prefecture may, on the basis of concurring certificates by two or more psychiatrists, commit any mentally disordered person dangerous to himself or others to a public mental hospital. Nevertheless, the governor's opinion as to the necessity to detain an acquitted defendant might differ from that of the court, and there might also be a gap in time between acquittal and commitment. Furthermore, such administrative commitment is sometimes criticized because of the lack of adequate facilities for the treatment of the mentally disabled.

As a possible solution to this problem, the Preparatory Code adopts the system of so-called “security measures." Security measures, now widely used in many European countries, are measures specifically designed for the isolation and the medical or educative treatment of certain kinds of offenders whose criminality creates special danger for society. Also, security measures generally devoid of punitive connotations, and their duration is determined according not to degree of culpability, but to need for treatment. (See Takeuchi, A Prepratory Draft for the Revised Penal Code of Japan, 1961, p. 14–15.) The following are the relevant provisions concerning the definition and the procedural aspects of insanity under the Preparatory Draft Code:

Article 15 (Mental Disorder). (1) Acts committed by a person who, as a result of mental disorder, lacks capacity to discriminate as to the propriety of his conduct or to act according to such discrimination are not punishable.

(2) Punishment for acts of a person whose capacity as set out in paragraph (1) is markedly diminished as the result of mental disorder may be reduced.

Article 110 (Curative Measures). A person suffering from a mental disorder who has committed acts punishable by confinement or a heavier punishment, to whom the court has applied the provisions of Article 15, may by order be subjected to curative measures if the court finds that he is likely in the future to commit similarly punishable acts and that such measures are necessary to protect the safety of the public.

Article 111 (Nature of Curative Measures). A person subjected to curative measures shall be committed to a security institution and given such curative and protective treatment as he requires.

Article 112 (Duration of Curative Measures). Curative measures shall continue for a five year period : Provided, that the court may extend such measures for as many three year periods as are necessary.

Article 113 (Release). (1) A person subjected to curative measures must be released by administrative action if his continued commitment has become unnecessary. Application of curative measures shall then be deemed complete.

(2) There must be at least one administrative review each year to determine if a person subjected to curative measures shall be relieved from such measures.

Provisional release accompanied by curative supervision may be granted administratively to inmates of an institution (Article 114). Punishment and curative measures imposed on the same person may be enforced consecutively, but the execution of the one may be dispensed with if it becomes unnecessary after the execution of the order. (Articles 120 and 122).

Under Article 165 of the Code of Criminal Procedure, it is required that only the judge selects a psychiatrist to examine the defendant and renders the decision regarding insanity, taking into consideration the psychiatrist's report.

6. Under the present Code, there is no express provision dealing with the problems of alcohol and drug intoxication; they are generally considered under Article 39 (persons of unsound mind or weak-minded persons). The Preparatory Code, however, provides abstinence measures for alcoholic or narcotic addicts The relevant provisions of the Preparatory Code are as follows:

Articie 115: (Abstinence Measures). A person who commits acts punishable by.confinement or a heavier punishment because of his habitual addiction to excessive use of alcoholic beverages or to narcotics or nerve stimulants may by order be subjected to abstinence measures if he is likely to commit similarly punishable acts in the future unless his addiction is cured.

Article 116 (Nature of Abstinence Measures). (1) A person subjected to abstinence measures shall be committed to a security institution and given abstinence therapy and other treatment necessary to cure his addiction,

(2) The court may, instead of committing such person to a security institution, subject him to administrative abstinence supervision if it appears that his addiction can be cured without commitment.

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(3) A person subjected to such supervision may be committed to a security institution by administrative action upon approval by the court if circumstances indicate such commitment to be necessary.

Article 117 (Duration of Abstinence Measures). Abstinence measures shall continue for a one year period; Provided, that if necessary the court may order a single one-year extention.

Article 118 (Discharge). (1) A person subjected to abstinence measures must be discharged by administrative action whenever such measures become unnecessary.

(2) There must be at least one administrative review every six months to determine if there shall be discharge from such measures.

Article 119 to Article 123 [omitted.]
7. The Penal Code contains the following:

Article 36 (Self-Defense). (1) An act unavoidably occurring in the protection of one's own rights or the rights of another person against imminent and unjust infringement is not punishable.

(2) Punishment for an act which exceeds the limits of defense may be reduced or remitted according to the circumstances.

Article 37 (Averting Imminent Danger). (1) An act unavoidably done to avert a present danger to the life, person, liberty, or property of oneself or another person is not punishable only in case the injury produced by such act is not out of proportion to the injury which was sought to be averted. However, the punishment for an act which is out of proportion may be reduced or remitted according to the circumstances.

(2) The provisions of the preceding paragraph do not apply to a person who has a special professional or occupational duty.

The Preparatory Code Provides :

Article 13 (Justifiable Defense). (1) Cnavoidable acts done to protect one's own interest or threat of another against imminent unlawful infringement are not punishable.

(2) If such acts exceed the limits of justifiable defense, punishment may be reduced in light of the circumstances. Such acts are not punishable when committed by one to whom blame cannot be imputed because he acted in a state of extreme shock or excitement.

Article 14 (Averting Imminent Danger). (1) Acts unavoidably done to avert danger which is imminent to one's own interest or that of another and which cannot otherwise be avoided are not punishable if the harm resulting therefrom does not exceed the harm sought to be averted.

(2) Where acts done to avert such danger are excessive, the provisions of Article 13 (2) shall apply with necessary modifications.

Both the present Code and Preparatory code are not as elaborate as the U.S. Draft Code.

8. There is no distinction between felony and misdemeanor.

Article 9 of the present Code provides : Principal penalties are death, imprisonment with forced labor, imprisonment, fine, penal detention, minor fine; confiscation being an additional penalty.

Article 32 of the Preparatory Code states :

Punishments are of the following kinds : (1) death; (2) imprisonment; (3) confinement; (4) fine; (5) penal detention ; (6) minor fine.

Article 32 of the suggested Alternative Draft provides :

Punishments are of the following kinds: (1) death; (2) incarceration; (3) fine; (4) penal detention; (5) minor fine.

9a. The present Code does not provide the court with any specific guides in fixing sentences or suspending the execution of sentences; the broad judicial discretion in sentencing under the Code, coupled with the emphasis on the culpability principle, has resulted in moderate or even lenient sentences in general and short prison sentences in particular. However, Article 47 of the Preparatory Code sets forth general standards for sentencing in Part I:

Article 47 (General Standards). (1) Punishment shall be assessed commensurate with the culpability of the offender.

(2) Punishment shall be imposed for the purpose of redressing offenses and reforming and rehabilitating offenders, in light of the age, character, career and environment of the offender, the motive, method, result and impact on society of the offense, and the attitude of the offender after the offense.

(3) Punishment shall not exceed in kind or amount that which is necessary to maintain legal order. The death penalty shall be invoked only with great caution.

There has been much discussion about the usefulness of such general standards, and most lawyers are apparently skeptical about the practical value of such abstract criteria. Additional provisions for sentencing include : Imposition of Fines and Minor Fines (Article 48); Pronouncement of Fine or Minor Fine in Terms of Days (Article 49deleted); Surrender (Article 50); Conversion of Imprisonment into Confinement (Article 51-deleted); Special Rules for Crimes Committed for Gain (Article 52); Extent of Reduction by Law (Article 53); Alternative Punishments and Reduction by Law (Article 54); Reduction by Virtue of Extenuating Circumstances (Article 55); Pronouncement of Fine in Lieu of Incarceration (Article 56); Order of Increase and Reduction Penalty (Article 58).

It should be noted however, that the main thrust of the Preparatory Draft Code which incorporates the provision of Articles 47 to 58 into Part I is not directed toward reducing the discretionary power of the court in any manner.

b. The present Code sets forth only suspension of execution of sentence (Articles 25-27), while the Draft Code provides for both suspension of execution of sentence (Articles 78–83) and suspension of pronouncement of sentence (Articles 84-87).

c. Probation is a form of suspension of sentence. It must be noted that under Japanese law the mode of placing the convict on probation is not necessarily the same as in the United States. If the judge finds the accused guilty, he must pronounce an appropriate sentence. If the judge sees fit, however, he may, under certain limitations, suspend the execution of the sentence for a Certain period. He may then place the probationer under the supervision of a probation officer, but this is not a mandatory step except in certain cases prescribed by law. The term “probation" is used here in its broader sense.

d. Under Article 25–2 of the present Code, defendants granted suspension of execution of their sentences may be placed under the supervision of a probation officer who is assisted by voluntary probation workers.

e. Indeterminate sentence has never been adopted in Japanese criminal law, except for youthful offenders under twenty years of age (Article 29 of the JuFenile Law). The Preparatory Draft, however, empowers the court to impose indeterminate sentences on habitual offenders with two or more prior convictions:

Article 61 (Habitual Recidivism). An habitual recidivist is an offender who has committed another crime after having been earlier sentenced to imprisonmnent for six months or more as a recidivist and is to be punished again as a recidivist by a limited term of imprisonment, and whom the court finds as a fact to be an habitual offender.

Article 62 (Imposition of Indeterminate Sentence). (1) An indeterminate sentence may be imposed upon an habitual recidivist.

(2) An indeterminate sentence may be imposed in a case of concurrent crimes, in which one crime carries an indeterminate sentence and the other does not only when the crime for which an indeterminate sentence can be imIm sed, controls under Article 64 [Punishment for concurrent crimes).

(3) An indeterminate sentence pronounced pursuant to paragraph (1) shall prescribe maximum and miminum terms within the limits otherwise authorized try law: Provided, that the minimum term may not be less than one year even though the minimum otherwise authorized is less than that.

f. Without defining what constitutes dangerous special offenders, Articles 56 und 57 of the present Code provide :

Article 56 (Subsequent Offenses). (1) When a person who has been senneed to imprisonment at forced labor within five years from the day on which the execution has been completed or remitted, again commits a crime Junisbable with imprisonment at forced labor, this crime constitute a subsenent offense (recidivism).

(2) The same applies when a person who has been sentenced to death for a "Time of the same nature as one punishable by imprisonment at forced labor

zain commits a crime punishable by imprisonment at forced labor for a limied term within the period provided in the preceding paragraph, as computed from the day when (his former) sentence was remitted or from the day when ore execution was completed or remitted if the punishment (of his former sen*-nce) was commuted to imprisonment at forced labor.

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