2017.04.26

2016 (A) 307

Keishu Vol. 71, No.4

Decision on how to judge imminence in the context of Article 36 of the Penal Code if the actor had predicted the infringement before engaging in an act of resistance

Case concerning charges of murder and criminal damage

Decision of the Second Petty bench, dismissed

Osaka High Court, Judgment of February 10, 2016

If the actor had predicted infringement before engaging in an act of resistance, the requirement of imminence of the infringement should be considered in light of the overall situation in which the act was conducted, including the circumstances preceding the act of resistance. The requirement of imminence of the infringement should be considered unmet if the act of resistance is not considered acceptable in light of the spirit of Article 36 of the Penal Code which permits a private individual to engage in an act of resistance if, in an emergency situation, he/she cannot be expected to seek legal protection by public authorities depending on the case, considering such factors as the previous relationship between the actor and the other party, the nature of the predicted infringement, the degree at which the infringement was predicted, how easy it would have been to avoid the infringement, the necessity for going to the place of infringement, the reasonableness of staying at the place of infringement, what preparations were made for the act of resistance (in particular, whether or not any dangerous weapon was prepared and the nature of the weapon prepared), differences between the actual act of infringement and the predicted infringement, and the situation in which the infringer committed the infringement and his/her intention when committing the same.

Article 36 of the Penal Code



Penal Code

Article 36 (1) An act unavoidably performed to protect the rights of oneself or any other person against imminent and unlawful infringement is not punishable.

(2) An act exceeding the limits of self-defense may lead to the punishment being reduced or may exculpate the offender in light of the circumstances.

The final appeal is dismissed.

Out of the number of days of pre-sentencing detention for this trial, 310 days are included in the calculation of the sentence.

The grounds for final appeal submitted by the counsel, KUBO Hiroyuki, are substantially allegations of factual errors and mere legal violations and do not constitute any of the grounds for a final appeal listed in Article 405 of the Code of Criminal Procedure.

Considering the views of the court of prior instance, the Court judges ex officio whether or not the act in question constitutes self-defense or excessive self-defense in this case.

1. According to the findings and records of the judgment of the first instance and that of prior instance, the facts related to the case are as described below:

(1) At around 4:30 p.m. on June 2, 2014, the accused’s acquaintance A (aged 40 at that time) repeatedly hit the entrance door of the accused’s empty house (on the 6th floor of an apartment building) with a fire extinguisher. From then until around 3:00 a.m. on June 3, the accused was yelled at by A more than a dozen times on the phone, saying, “I’m coming to see you now, wait for me. I’ll make you take responsibility,” and that A would attack the accused with A’s friends. The accused did not remember having done anything that would have given A a pretext to pick a fight with the accused like that, and was in anger.

(2) Around 4:02 a.m. on June 3, when the accused was at home, A called the accused on the phone and told him to come downstairs, as A had come to the front of the apartment building. The accused wrapped a kitchen knife that he had at home (with a blade length of 13.8 cm) with a towel, placed the wrapped knife between his right hind hip and his trousers, and went to the street in front of the apartment building in which he lived.

(3) Having found the accused, A ran up to the accused with a hammer. The accused walked towards A without using intimidating behavior such as showing the kitchen knife to A. A started hitting the accused with the hammer, and the accused, while defending himself from A’s attack by pushing his own arms forward and pulling his own hips backwards, took out the kitchen knife and killed A by plunging the kitchen knife, strongly one time, into A’s left chest with murderous intent.

2. Article 36 of the Penal Code permits, on an exceptional basis, a private individual to engage in an act of resistance to eliminate infringement when it cannot be expected that he/she will seek legal protection by public authorities in an emergency situation where there is imminent and unlawful infringement. Therefore, if the actor had predicted the infringement before engaging in the act of resistance, the requirement of imminence of the infringement should not be considered unmet automatically just because the infringement was predicted (see Supreme Court, 1970 (A) No. 2563, Judgment of the Third Petty bench of November 16, 1971, Keishu Vol. 25, No. 8, p. 996) but should be discussed in light of the overall situation in which the act was conducted, including the circumstances preceding the act of resistance. Specifically, the requirement of imminence of the infringement should be considered unmet if the act of resistance cannot be considered permitted in light of the spirit of Article 36 of the Penal Code described above, such as if the actor deals with the infringement with the intention of actively inflicting injury upon the other party by taking advantage of the occasion (see Supreme Court, 1976 (A) No. 671, Decision of the First Petty bench of July 21, 1977, Keishu Vol. 31, No. 4, p. 747), depending on the case considering such factors as the previous relationship between the actor and the other party, the nature of the predicted infringement, the degree at which the infringement was predicted, how easy it would have been to avoid the infringement, the necessity for going to the place of infringement, the reasonableness of staying at the place of infringement, what preparations were made for the act of resistance (in particular, whether or not any dangerous weapon was prepared and the nature of the weapon prepared), differences between the actual act of infringement and the predicted infringement, and the situation in which the infringer committed the infringement and his/her intention when committing the same.

According to the facts related to this case described in 1 above, it is found (i) that the accused prepared a kitchen knife and went to the place where A was waiting for him, even though the accused had fully predicted that if he went to the scene in response to A’s call, he would be attacked by A using weapons or something, and even though it was not necessary for the accused to comply with A’s call and it was easy for the accused to stay home and get help from the police, and (ii) that as soon as A attacked him with a hammer, the accused approached A without so much as using intimidating behavior, such as showing the kitchen knife to A, and strongly plunged the knife into A’s left chest. In light of the overall situation in which the act in question was conducted, including these preceding circumstances, the accused’s act in question is not considered permitted in light of the spirit of Article 36 of the Penal Code but is considered not meeting the requirement of imminence of the infringement. Therefore, the decision of the prior instance, which upheld the judgment of the first instance that denied self-defense and excessive self-defense in this case, is justifiable.

Accordingly, the Court unanimously decides as set forth in the main text in accordance with Article 414, Article 386, paragraph (1), item (iii), and the proviso to paragraph (1) of Article 181 of the Code of Criminal Procedure, and Article 21 of the Penal Code.

Justice KANNO Hiroyuki

Justice ONUKI Yoshinobu

Justice ONIMARU Kaoru

Justice YAMAMOTO Tsuneyuki