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(3) When a sentence of imprisonment at forced labor would have been rendered for one crime which is a constituent part of consolidated crimes, a person who has been sentenced for such consolidated crimes shall, even though such constituent crime is not the gravest, be deemed to have been sentenced to imprisonment at forced labor for the purpose of application of provisions relating to subsequent offenses.
Article 57 (Punishment for Subsequent Offenses). Punishment for a subsequent offense shall not exceed twice the maximum term of imprisonment at forced labor provided for such crime.
g. Punishments of crimes concerning foreign aggression under the present Penal Code are as follows: conspiring with a foreign state and causing use of armed forces against Japan--the maximum penalty is death (Article 82); siding with enemy state, engaging in military service of such state, or otherwise affording military advantage to such state-the maximum is death or life imprisonment and the minimum, two years (Article 82); preparing or conspiring with another to join with or render aid and assistance to enemy state—the maximum is ten years and the minimum, one year (Article 88).
1. Certain crimes carry mandatory minimum prison sentences. For example, Article 177 of the present Penal Code provides that “a person who, through violence or intimidation, has sexual intercourse with a female person of not less than thirteen years of age, commits the crime of rape and shall be punished with imprisonment at forced labor for a limited term of not less than two years."
i. l'arole is provided in Part I (Articles 28 and 29) of the present Penal (oxe. More elaborate provisions concerning parole are set forth in Part I (Articles ss 10 93) of the Preparatory Draft Code, but these provisions are still not as elaborate as those mentioned in Chapter 34 of the C.S. Draft Code.
j. Granting of parole is discretionary with the parole board known as the District Ortenders Rehabilitation Commission whose decision is subject to review by the National Commission (See the Offenders Prevention and Rehabilitation lar),
k No. 1. No. m. For similar prorisions, see Articles 56 and 57 cited in Question 9 (f).
n. Neither the Penal Code nor the Code of Criminal Procedure has provisions concerning the preparation of the written adjudication; the matter is left te rules (Article 33 of the Rule Concerning the Criminal Procedure). Verertheless, juigments assessing penalties, and probably other adjudication as well, onght usually to be prepared in written form or set out in the protocol of trial. Resans for sentences are usually included in the citation of applicable lans and penal provisions (Article 219 of tlie Rule Concerning the Criminal Proxiure
a Sentenars are sulject to reriew on appeal hr appellate courts including the Supreme Court. Japanese appellate courts generalls hare the power to raise or lower the sniences impuisel bir lower courts (Articles 400 and 412 of tine (inde of t'riminal Procedure). Howerer. no hearier penalty than that impresent for the original judgment mar le pronounced when the defendant appels (Articia de of the Code of Criminal Preure.
p Bern flie Gorernment and the defendant may appeal (Article 351 of the Code of Criminal linnedure.
4. The Code of Criminal Procedure contains the following relevant provisions:
ABEN: In the erent that a motion of Koso-appeal has been made on the 7xa??racà that the penaltr is improver, the facts which are entered in the rayon mi portalings and the prindere examined in the original court and
eli sitell! mike it leieraile that the penalty is improper shall be refernalin in the stalen.ent of reasons for higeai.
14PM) in sellate diurt shall investigate such matters as conta:nei in the statement pof reasons for husnjal.
hitted The B) An appellate court mar. witn it is Decessary to conduct the investigation as mentioned in the preceding Article examine facts upon reQuiest xf a penie pot urator, ile adused, "I the counsel, or upon its own authritt: Provideni, that tle facis ile Xianation as mentioned in Article 32–2 of which has been made shall be examined only when that an imti pensable for proving the penalty determine Impre u Ihr Hunt 11 and or of facts to affect the judgment.
2) An appellate court may, when dermis de ani, cand will all a actories the examination in regard to much time on this line for monill annan the jouent in the first instance and as should affedi llik juunilla Helmi 31-9, Ornited]
1 21: Any evidence that come tre m **1961 tai liike him in S2S SIT Lide as evidence even in on niite that two
judgment apply by analogy to this kind of order, but no copy of the adjudica tion has to be served before enforcement (Article 490 (2) of the Code of Criminal Procedure; See also Article 46 of the Bankruptcy Law; Article 44 of the Debtor's Composition Law; and Articles 528 (1) and 560 of the Code of Civil Procedure).
V. Article 49 of the Preparatory Draft Code had originally proposed pronouncement of a fine or a minor fine in terms of number of days, but it was deleted.
w. Article 48 of the Preparatory Code states: In imposing a fine or a minor fine, the assets, income and other financial circumstances of the offender shall also be taken into consideration.
10. Article 38, paragraph 3 of the present Code concerns itself only with mistake of law: An ignorance of the law cannot be deemed to constitute a lack of intention to commit a crime, but punishment may be reduced according to the circumstances.
Article 20 of the Preparatory Draft states :
(1) Ignorance of law shall not mean the absence of intent: Provided, that punishment may be reduced in light of the circumstances.
(2) A person who acts without knowing that his acts are not permitted by law shall not be punished, if there is adequate reason for his ignorance.
Regarding ignorance or mistake of fact, Article 19 of the Preparatory Draft provides :
(1) A person who acts without realizing the existence of facts which make his act criminal shall not be deemed to have acted intentionally.
(2) A person who commits a crime graver than the one he intends to commit, without knowing that at the time of his act the facts aggravating the crime, shall not be punished for the graver crime.
12. The Preparatory Draft contains the following: Crimes committed abroad by Japanese nationals (Article 2); Crimes committed abroad by public officials (Article 3); Certain crimes committed abroad (Article 4); and Crimes committed abroad by aliens (Article 5).
13. The Japanese Penal Code follows that of the European countries, but it provides only for conspiracy to commit insurrection, foreign aggression or private war, as set forth in Articles 78, 88 and 93:
Article 78 (Preparation and Conspiracy). A person who makes preparations or conspires with another to commit an insurrection shall be punished with imprisonment for not less than one year nor more than ten years.
Article 88 (Preparation and Conspiracy). A person who makes preparations or conspires with another to commit the crimes mentioned in Articles 81 and 82 (foreign aggression and assistant to enemy) shall be punished with imprisonment at forced labor for not less than one year nor more than ten years.
Article 93 (Preparation and Conspiracy for Private Wars). A person who makes preparations or conspires with another to wage a private war against a foreign state shall be punished with imprisonment for not less than three months nor more than five years, but the punishment of a person who denounces himself shall be remitted.
The present Penal Code divides accomplices, instigators, and accessories; it provides that “two or more persons who have jointly executed a crime are all principals," (Article 60) that “a person who has instigated and caused another to execute a crime" is an instigator (Article 61), and that “a person who has assisted a principal is an accessory" (Article 62). Although this system follows the lines of the French and German codes, the Japanese court developed the concept of a “conspiratorial-coprincipal" through cases interpreting Article 60, berond the limits set by the Penal Code.
The conspiratory-coprincipal theory has much in common with the AngloAmerican law of conspiracy, but this theory requires that criminal activity progress beyond the simple orert act to a stage where actual harm is done to society before criminal liability is attached. (See Ryuichi Hirano, “The Accused and Society : Some Aspect of Japanese Criminal Law." Law in Japan, ed. by Arthur Taylor ron Jeheren, Cambridge, Harvard University Press, 1963, p. 290.)
14. The felony-murder rule was often criticized by Japanese lawyers. In Japan, if a person dies as a result of a train wreck, rape, or robbery, the death penalty or life imprisonment is imposed on the person who committed the original criminal act. A killing in connection with art is moribunile punished, but arson itself carries the death pwnally, 'l ha torin "rep" in me used in these cases, but in fact the same results are touche na was the fastny murder rule. However, most scholars argue that even in the anno few gence turned toward the graver harm on the imant of the most be late pa quired. The Drift Penal Code adopts this view a* *** forth in Art 11 aggra rated patent is prescribed on the basis of the $6 und eine (A * pune, Brian it was
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(6) Adding poisonous substance to water main, thereby causing death.
The Penal Code provides no separate proceeding to determine sentence in a capital case.
20. Article 256 (5) of the Code of Criminal Procedure provides: "Multiple counts or citations of penal provisions may be alleged conjunctively or in the alternative [in the indictment].” Professor Dando in his work, The Japanese Law of Criminal Procedure, commented as follows:
Even if there is but one criminal transaction, if various legal provisions may be applied to it they must be alleged in multiple counts. For example, if it is not clear whether the property in question was in the legal possession of the injured party, there must be a count alleging that the facts constitute theft and another that they constitute wrongful appropriation of lost property. Consequently, counts can be included either conjunctively (theft—but if not theft then wrongful appropriation of lost property). . . . Penal provisions may also be cited conjunctively or alternatively in a single count. For example, since there is a difference of opinion whether pilfering the contents of a package with which one has been entrusted is legally theft or wrongful appropriation, if such facts are alleged in the counts it is probably permissible to cite as applicable provisions both Penal Code Articles 235 (theft) and 252 (wrongful appropriation). (See Shigemtsu Dando, The Japanese Law of Criminal Procedure, trans. by B. J. George, Jr., South Hackensack, N.J., Fred B. Rothman & Co., 1965, p. 171.)
With respect to the case belonging to another jurisdiction, Article 258 of the Code of Criminal Procedure states :
A public prosecutor shall, when he considers that a case does not come within the jurisdiction of the court corresponding to the public prosecutor's office to which he belongs, send the said case to a public prosecutor of the public prosecutor's office corresponding to the court having the jurisdiction together with the documents and evidence.
Under Article 338 of the Code of Criminal Procedure, the public prosecution shall be dismissed in the following cases :
(2) In a case where the public prosecution has been instituted in violation of the provisions of Article 310 (dismissal of prosecution by revocation and re-indictment);
(3) In a case where the public prosecution was instituted, the public prosecution has again been instituted for the same case with the same court;
(4) In a case where the procedure for the institution of public prosecution is void due to the violation of the provisions thereof.
THE REPUBLIC OF KOREA
1. The Penal Code of 1953 consists of two parts. Part I contains the general provisions (Articles 1 to 86) and Part II the specific provisions (Articles 87 to 372). The former deals with the general principles, including sentencing, that are to be applied to the latter. Sentences are designated for the specific crimes desscribed in each Article of Part II.
2. No numbering system is used; new provisions are added to the original ones, e.g.. Article 1, Article 1-2, Article 1-3, etc.
3. On the basis of German law, two elements of a state of mind, intent and negligence, are provided for in the Penal Code. This distinction leaves no room for the intermediate concept of “recklessness” as conceived by Anglo-American law. There is no statutory definition of either intent or negligence. Article 13 and 14 of the Penal Code simply provide :
Article 13 (Criminal Intent). Criminal conduct due to ignorance of facts which constitute the elements of a crime is not punishable.
Article 14. (Negligence). Conduct in ignorance, due to neglect of normal attention of facts which constitute the elements of a crime, shall be punishable only where the law specifically so prescribes.