3. CRIMINAL LAW
The received criminal law was so different from the Japanese indigenous criminal law that it outlawed some indigenous crimes and punishments on the one hand and adopted some unprecedented ones on the other with its fundamental principle of nullum crimen, nulla poena sine lege and Aristotelian-Christian ethics.
However, many indigenous remnants were found in it. Some of them, such as heavier punishment for crimes against the Imperial Families,32 and punishment for adultery by wives but not by husbands, were abolished in the postwar legal reform because of their absolutistic or undemocratic nature. Still others survived the legal reform. It goes without saying that such traditional crimes as theft, injury, murder and some others were adopted in the received Penal Code for their universality, with some arrangements for modern criminal procedures. Below are a few limited examples to be specifically mentioned.(1) Heavier punishment for the murder of an ascendant
The Meiji Penal Code adopted indigenous ethics to respect one's ascendants more than others, as had been naturally accepted in the traditional family system. Article 200 provided a harsher punishment for the murder of one's ascendants than any other. After the post-war legal reform, it was faced with strong criticism, for feudalistic morality was suspected. But a prevailing conservative opinion, advocating its universal humanity, won over criticism, allowing the Article to survive. A Supreme Court decision in 1950 upheld the conservative opinion when a case to test the constitutionality of the Article was defeated eight to seven on appeal. But in 1970 the Article was declared by the Court to be unconstitutional on the grounds that it violated the constitutional principle of “equality before law.” The Article has not been formally deleted yet, but an indigenous law has been lost through official judicial review.
(2) Punishment to protect inkan or hanko
Articles 234–239 of the Penal Codes provide punishment for the forging and use of inkan or hanko (seals and their impressions) of official organs and private persons without authority. This is to protect the widespread practice of using a seal to show one's acceptance of legal responsibility or declaration of intention as Westerners would do so by giving their signature. Official registration of a jitsuin is required to make it the legitimate seal of a person. But the provisions of the Penal Code protect not only the registered seal, but also unregistered seals which may be used so arbitrarily that protection by law may often pose difficulties.