Legislation Update (Criminal Law)

The act to amend parts of the Penal Code and other statutes for dealing with the sophistication of information processing (related to amendments to the Penal Code)

Associate Professor Kazutoshi Sugimoto
(Research Staff, Faculty of Law)
(on 21 November 2011)


     The Act to amend parts of the Penal Code and other statutes was enacted on June 17, 2011, and promulgated on June 24, 2011. The amendments included (1) the establishment of provisions setting forth the punishment for the creation and distribution of computer viruses, (2) the expansion of the definition of objects and behaviors for the crime of distributing obscene materials, and (3) the enhancement of the penal provisions against the obstruction of compulsory execution. The amendment (1) partially originates from the conclusion to the Convention on Cybercrime, while the legislator raised the legislative fact that in modern Japanese society, where the computer is in wide use, it is impossible not to notice the actual damage to computer information processing caused by computer viruses.

     The following describes the details of the amendments :

     (1) Establishment of the crime of electromagnetic records as a computer virus

     The amendment adds three areas subject to punishment: ① to create or provide (a) electromagnetic records of a computer virus or (b) electromagnetic records and other records describing the computer virus (records of source code that may not function as a virus by itself but which is executable as a virus after translation into machine code), in order to put them into for use on a computer of another person (Penal Code §168-2 (1)), ② to put or attempt to put (a) into for use on a computer of another person (Penal Code §§168-2 (2)(3)), and ③ to obtain or store (a) or (b) (Penal Code § 168-3). “To put” them “into for use on a computer of another person” means making it possible that another person would (unknowingly) execute them on a computer.

     Electromagnetic records of a computer virus are defined as “electromagnetic records of an unauthorized command preventing computers from acting corresponding to the userfs intention or making computers act against the userfs intention” (Penal Code §168-2 (1)(ⅰ)). Program errors which inevitably occur during the process of program development (so-called bugs) are not subject to the definition because of the lack of the requirement “unauthorized”. Additionally, these penal provisions include the requirement “without justifiable grounds”, and actions to create a virus for the purpose of the development and research of anti-virus measures are not subject to a penalty under the law.

     In addition, a provision for an attempted crime is established for the obstruction of business by damaging a computer (Penal Code §234-2 (2)).

     (2) The crime of distributing obscene objects

     Under the former §175 of the Penal Code, the actions of distributing, selling or displaying obscene document, drawing, or other objects were punished. To definitely cover such actions as sending obscene pictures by e-mail, the amendment adds recording media with electromagnetic records to the objects, and adds actions of distributing obscene electromagnetic records or other records by sending them via telecommunications to behaviors.

     (3) Related to the crime of obstructing compulsory execution

     In addition to the above, the related penal provisions are enhanced in order to deal with malicious obstruction of compulsory execution (Penal Code §§96 - 96-6). As a result, such actions as reducing the value of properties subject to compulsory execution by simply changing their status without damaging and concealing the properties (Penal Code §96-2 (ⅱ)) additionally become subject to the penal provisions.