(translation by Vicki L. Beyer)
Temple
University Japan
By: Seiji Iishiba
Translated by Nicola Britain and Hiroyuki Yamada
(Originally appeared in Jurist #985, 9/1/91)
1. Introduction
Japan’s crime syndicates are essentially a problem which falls outside the parameters of the law, while the legal system and the structure of the law deal with problems which fall within the law.
Accordingly, the phenomena of crime syndicates and their proliferation, rather than being considered problems of the legal system itself, should be taken as disabilities in the function of the legal system. In other words, this is an inherent problem that arises in cases exceeding the functional limits of the legal system. It is, therefore, of no use to discuss these phenomena in terms of the current Criminal Code or the judicial system.
Although the subject is discussed using legal terminology, this is a world which basically cannot be described using legal term; it exists beyond the scope of the law. As a result, the essence of the syndicate crime problem stems from the conflict between the law and that which falls outside its parameters.
2. Recent Crime Syndicate Activity
Before discussing the legal implications of Japanese crime syndicates and organized crime, it is useful to briefly review some of the more recent organized crime activity.
Recently, the ex-leader of a Kantou crime syndicate bought up a large number of shares in a railroad company. The stock certificates were then used as security for borrowing substantial funds from one of Japan’s largest securities companies. This same crime syndicate operates a number of golf courses. The syndicate raised funds by selling virtually worthless golf memberships to more than ten companies, at hundreds of thousands of dollars per membership.1
In the Kansai area, a man rumored to be involved in the "underworld" became a director in a well-established textile company. By causing bad debts exceeding several billion dollars, he lured the company’s management into financial turmoil. Authorities have begun investigating the matter.2
In yet another case, a figure closely associated with the underworld became a majority shareholder in a financially sound sewing machine company. The man became a part-time director but essentially seized control of the company. Using the company’s assets as security, he raised large amounts of capital from financial institutions and, by threatening the related companies and banks, obtained three hundred million dollars, completely draining the company of all of its resources in the process. The man has since been arrested and prosecuted.3 However, it is believed that the majority of the funds raised from these intimidation practices had already passed to the crime syndicates.
Reports of similar activities are frequent, and appear in the newspapers daily. This phenomenon is considered a result of Japan’s "bubble economy" and its collapse, neither of which had been experienced in Japan before. All of this activity vividly illustrates the dire changes taking place in Japan’s social structure.
It is important to realize the extent to which the current legal system is able to cope with the changing social structure, and conversely, where the limits of the legal system lie. Unless the actual position of the current legal system is understood, there is a danger of committing crucial mistakes in devising measures to act against organized crime.
To aid in understanding the current legal position, the following discussion will first provide a general outline of the history of the Japanese underworld, and will conclude by delineating some of the characteristics of contemporary organized crime. Based on these analyses, some foreseeable difficulties will be discussed with reference to Japan’s current legal system, including the recently enacted Crime Syndicate Restriction Act. 4
3. The Changing Japanese Underworld and the Reaction of the Law
The change within the Japanese underworld was greatly influenced by postwar social and economic changes in ordinary society. This transition can be divided into three distinct stages: from 1945-1960, from 1960-1985, and from 1985 to the present. Given that the transition within the Japanese underworld was prompted by changes to the social and economic structure, the first stage may be entitled the Yakuza-Gokudou Stage,5 the second, the Crime Syndicate Stage, and the third, the Organized Crime Stage.
The Japan-U.S. Security Treaty commenced in 1960.6 The next decade saw Japan enter a high economic-growth period, symbolized by the "income-doubling" scheme introduced by the Japanese Government.7 During the same period, the structure of the underworld changed substantially, evolving from the primitive "Yakuza" into the modern crime syndicate form.
In 1985, the developed nations concluded the so-called "Plaza Accord"8 in New York. This agreement thrust the Japanese economy into the world arena to replace the stagnating U.S. economy. The low interest-rate policy ensuing from the Plaza Accord, and adopted by the Japanese Government, ultimately cause the economy to "boil over." Steep economic growth combined with low-interest finance also created greater financial exploitation opportunities for the crime syndicates.
1. Stage One (1945-1960): The Yakuza-Gokudou Stage
This first Yakuza-Gokudou Stage was the original source of the classical organized crime image held by many Japanese people. The characteristic feature of this first stage was that these organizations were no more than small-scale, local crime groups.
Following the end of World War II, in addition to the revival of conventional outlaw groups such as illicit gaming organizers (bakuto) and street vendors (iekiya), which had long existed in Japan, new outlaw groups like juvenile crime gangs (seishoonen furyoudan) and hoodlums (gurentai) flourished, taking advantage of the postwar chaos arising from Japan’s defeat. These organizations were based in fairly small territories controlled by a gang leader. The activities of these small-scale groups were basically conducted within their small jurisdictions, although they fought with opposing gangs for more territory.
These crime groups were classified as gambling syndicates, street vendors, juvenile crime gangs, coal miner’s union rackets, prostitution rackets, and wharf gangs, as well as were the groups engaged in such activities as the provision of illegal gambling, bookmaking, prostitution, extortion, and blackmail. Their main source of revenue derived from criminal activity, which largely targeted individuals. In addition, these activities were of a passive nature, in that the gangs simply waited for potential clients to venture into their territory. As a result, the illegal profit acquired by the Yakuza-Gokudou was small compared to the profits of the crime syndicates in Stages Two and Three. In economic terms, these small-scale illegal enterprises could be described as illegal retail businesses.
During this first stage, the world of the Yakuza was strongly interconnected, often as a result of blood relationships. The leader of the group had a duty to look after the welfare of his henchmen, while in return, the henchmen had to show absolute obedience to the orders of their leader. In exchange for their leader’s munificence, the henchmen protected the territory created through their leader’s sphere of influence.
There were many of these small organizations scattered around Japan, and within each territory the gang leader would distribute the earnings amongst his henchmen. Consequently, during this stage money flowed from the top of the organization down to the bottom. As a result of this structure, the gang leader—as the money collector at the apex of the organization—was easily identified and hence easily arrested. The modest size of these organizations also made it possible to arrest the entire gang.
This was a period when the legal operation of the current Criminal Code was manifested, and the modified requisite elements for complicity particularly worked well. Due to the small size of these groups, when several members of the gang were arrested—the gang leaders often being amongst them—the group was easily broken up.
During Stage One, the difference between criminal groups and anti-social groups was minimal, since Yakuza organizations as well as anti-social groups made their livelihood from criminal activity. The aim of eliminating organized crime groups coincided with the means to expose criminal activity and make arrests, making this a period when the Criminal Code was particularly effective.
Moving into Stages Two and Three, the differences between criminal groups and anti-social groups gradually widened. The scope of activities which are not subject to criminal liability under current law has rapidly expanded as the economy has developed.
2. Stage Two (1960-1985): the Crime Syndicate (Bouryokudan) Stage
Stage Two can be called the Crime Syndicate (Bouryokudan) Stage, describing the underworld groups that arose during this time. The term "Bouryokudan"9 is said to have originated within the Government.
The underworld groups during Stage One were small organizations, each specializing in one particular field of crime. For example, some crime groups ran gambling syndicates or engaged in street vending, while others were simply juvenile crime gangs. There were coal miner’s union rackets, prostitution rackets, and wharf gangs. Each crime group had its own individual and specialized field of criminal activity.
This changed during State Two; these groups began to operate in a quasi-legal manner. In addition to individuals, corporations now became the targets of this criminal activity. The crime groups would take over any organization with profit-making capabilities, regardless of whether it related to their customary area of crime. For example, a gambling syndicate might absorb an unlicensed retail marketing racket, and vice versa. During this process, there were many disputes, and repeated changing of alignments. Violent organizations were utilized to generate more money, as is common to their nature. These groups used force to extort money from their victims, and based on this violent character, were described as "Bouryokudan."
If the crime based activity in Stage One can be described as illegitimate, then Stage Two represented a transition from illegitimate to legitimate enterprise, or more precisely, a transition from strictly criminal to a hybrid of illegitimate and legitimate enterprises. There was a greater tendency to shift toward legitimate business. However, while this legitimate enterprise appears on the surface to be an ordinary, honest enterprise, in fact it was of an entirely different nature.
The Yakuza had two reasons for their policy of operating under the guise of legitimate business. The first was that the Yakuza had learned through experience that it was to their benefit to cloak themselves with the outward appearance of legitimacy; it prevented police raids. Secondly, territory was necessary in order for the members of the organization to cultivate new sources of income, and new territory was difficult to obtain. The notion of an ostensibly legitimate enterprise made it possible for the organizations to broach new "frontiers," allowing them freedom to exploit new sources of income with few restrictions. Members of the organizations thus moved into new fields and began generating more income.
Looking on this development from a different perspective, it can be seen that their activities changed from crime-based conduct to quasi-legal activity. For example, suppose a new sex industry establishment opened within Yakuza territory. If it was during Stage One, the Yakuza would simply go to the establishment and ask immediately for location and protection fees. The mere act of asking would constitute extortion (pursuant to §223 of the Criminal Code) and intimidation (pursuant to §249 of the Criminal Code). All that would then be required for the immediate arrest of the perpetrators would be notifying the authorities.
Suppose the same establishment was opened during Stage Two. Instead of making a direct demand for money, the Yakuza would use force to demand that the establishment procure necessary business items such as towels or plants and pictures not directly from the suppliers, but through Yakuza-owned paper companies. The prices charged by the paper company were naturally substantially higher than market prices, with the excess ostensibly being regarded as location fee.
In reality, a request for payment from a Yakuza-backed company was virtually impossible to refuse. The Yakuza used their violence in such a way that the establishment could not refuse to pay for the goods. This is a typical example of quasi-legal activity being conducted under the guise of ordinary business.
During Stage One the business was patently illegal, while during Stage Two the business was still illegal, but appeared legal from the outside. This feature was the main peculiarity of Stage Two. The Bouryokudan also learned to incorporated their activities during this period.
The legitimization of their activities originated with the sex industry establishments, and gradually widened to include real estate business, construction industry, civil engineering industry, and the finance industry. Those who shifted from the crime industry to so-called legitimate business advanced the most quickly. The Yakuza organizations became extremely affluent and went on to become the Bouryokudan, with even wider ranging territories.
Another aspect of conducting legitimate business was that by this time, through these quasi-legal fields of activity, it became possible for the individual members of the gang to conduct their own income-generating activities. In effect, during Stage Two, both the gang leaders and the gang members began generating income. Both illegal and legitimate businesses profited, the gangleaders and members were all making a profit, and income sources widened. As they became financially sound, members would form a new sub-group with its own members. This phenomenon was the single greatest factor in the proliferation of the Bouryokudan and their activities.
During Stage One, the activities of the Yakuza were based on the simple structure of a leader and his henchmen, but Stage Two saw this relationship change. A member of a group could become the leader of a subordinate group with his own henchmen, and in turn, these henchmen had smaller groups under them. This vertical chain consisting of multiple stratum comprised the Bouryokudan hierarchy.
As the structure of the Bouryokudan became hierarchical, the flow of money naturally changed. During Stage One, it was a fundamental right of the gang leader to earn the money, and the money then flowed from the leader to his henchmen. During Stage Two, due to the quasi-legal activity, members began earning their own income. The result was that money also flowed from the bottom of the hierarchy to the top.
The reason for the flow of money up the hierarchy was that, in order to conduct the quasi-legal activities, the members had to operate under the group name. This lent the goodwill and influence of the name to the business. The money passed to the leader was regarded as consideration for the benefit derived from the use of the Bouryokudan name. It was essentially a franchise of the Bouryokudan organization.
By this time, the Bouryokudan leaders rarely conducted any criminal activity themselves. Instead, during this process of change they were gradually placing themselves in a position of collecting money from subordinate gangs in exchange for the use of the Bouryokudan name and reputation. The larger the scale of the organization, the greater the value of its reputation. This was another reason for the expansion of the Bouryokudan organizations.
As these organizations flourished, the executive leader class simply collected fees from their subordinates. It was no longer necessary for them to personally carry out the conduct which fulfilled the requisite fault elements pursuant to the Criminal Code. As a result, the legitimate section of the organization advanced, increasing their sphere of malignant influence, while only the lowest ranking members actually committed crimes and were arrested. In this way, the Bouryokudan system suffered little damage from law enforcement, and more and more income came pouring in. The income accumulating at the top of the hierarchy began to be employed as "war" funds in a campaign to dominate all the Yakuza organizations throughout the nation.
This system of payment to the top of the hierarchy created an inverted pyramid as the organization expanded. It proved beneficial; the larger the organization, the more income for those at the top of the hierarchy. At the same time, the more income the constituents made, the larger the organizations became. This multiplier effect spurred the large Bouryokudan to vie for the top position within the national Bouryokudan organization.
As mentioned previously, Stage One Yakuza-Gokudou were local organizations comprising many small-scale groups through out the nation. In Stage Two, national domination rapidly brought about a change of direction towards franchising and the monopolization of the Bouryokudan organizations. During this process, the total number of members decreased, but several huge Bouryokudan organizations emerged.
The existing criminal law system tried to maintain its effectiveness against these huge Bouryokudan organizations by arresting the criminals at the lower levels of the hierarchy. However, this method diminished the general effectiveness of the law by making it difficult to arrest the Bouryokudan leaders, and also accelerated its dwindling effectiveness by acquiescing to the economic value of these crimes. This is because in practical terms, confiscation provisions of the Criminal Code were powerless, and no attempt was made to revise the ineffective provisions. Leaving this problem untackled provoked a crucial result in Stage Three.
Another problem was that the shift from criminal to quasi-legal activity during Stage Two also changed the nature of underworld activity from passive to active-aggressive. Since their activities appeared legitimate on the surface, the organizations were able to act in a positive manner. During Stage One, it was a basic Yakuza principle that the citizenry were not to be unduly interfered with. The Yakuza-Gokudou simply sat back and waited for clients, and dealt with them using "smiling tactics."10 However, the system during Stage Two allowed them to take positive actions under these circumstances. The dominant Yakuza goal became to make more money regardless of the trouble caused amongst the citizenry.
The initial form of this aggressive behavior was described as "Intervention Violence." During periods of high economic growth, it is customary for disagreements to increase. However, the judicial system and the trial process are expensive and time-consuming. Further, there is no guarantee of success. Under these circumstances, often it does not make economic sense for corporations to prosecute. This is where dispute resolution operates as a short cut. "Intervention Violence," then, is nothing but the systematic intervening of the underground world in the area of non-legal dispute settlement.
From a legal standpoint, Stage Two represented the abuse of legal rights by the underworld on an organizational level. It was an abuse of legal rights because, while these activities appeared legal on the surface, the internal operations were actually illegal. An example of an abuse of legal rights occurs when a party obtains a small piece of land adjacent to a planned golf course development with the intention of making a forced sale of the land to the developer at a substantially inflated price, as was exemplified in the famous Unazuki Onsen Case.
One of the factors which allowed the growth and proliferation of the Bouryokudan was the ineffective functioning of the current system of dispute resolution. The Bouryokudan, which were in the process of becoming huge organizations through their strengthened capital base, were encouraged by the relaxed economic policy. This led to the emergence of Stage Three, which was represented by the deterioration of the economy as a result of organized crime.
3. Stage Three (1985-Present Day): The Organized Crime Stage
Stage Two saw the Bouryokudan expand their income base from purely illegal to both illegal and legitimate operations. During Stage Three, the legitimate businesses expanded to form separate and independent entities, many of which even incorporated. This was the advent of the era of criminal corporations.
During Stage Two, the formation of a company was merely nominal. The company usually simply consisted of a Bouryokudan office; shareholders were taken from the ranks of Bouryokudan members. In contrast, during Stage Three the management personnel of these companies began to come from outside the crime syndicates.
These were the "Kigyou Shatei;" a form of corporate Yakuza brotherhood. Kigyou Shatei are not Bouryokudan, but external organizations which support the activities of the Bouryokudan. During Stages One and Two, these organizations facilitated the criminal profit-making of the Bouryokudan. Examples of these early Kigyou Shatei are the middlemen who smuggled the weapons being supplied to the Bouryokudan, or the go-betweens who arranged the clientele when the Bouryokudan opened an illegal gambling establishment. However, during Stage Three, the Kigyou Shatei took on the role of managing the capital acquired through the Jounou system. 11
Money laundering features as one of the more important duties of the Kigyou Shatei. The crime syndicates entrust capital to the Kigyou Shatei to invest through legal, and sometimes illegal, channels and the resulting profits are shared.
Kigyou Shatei are generally not crime syndicate members, but usually "quasi-members" directly connected with the executive class of the Bouryokudan. While they co-exist with the Bouryokudan, sharing the same money-making interests, they appear to be members of the general public. The very existence of the Kigyou Shatei serves to support the increasingly shrewd, intellectual, and even vicious, activities of the Bouryokudan, and they are important financial consultants for the crime syndicates.
Kigyou Shatei were originally run by former Yakuza members, but as activities such as capital management came to require a specialized knowledge of law and economics, these former Yakuza were replaced by ordinary people. Today, instances exist where the owner of a business is a crime syndicate executive while the managers are simply ordinary (i.e., low-ability) citizens. Thus management is separated from the role of provision of capital.
Kigyou Shatei make their profit from corporate activities supported by organized crime, while the crime syndicate achieves a stable capital base by receiving secure investment profits. In this way, the Bouryokudan made a huge amount of money during Stages Two and Three, resulting in the expansion of the organization, which in turn, increased the inflow of capital.
Bouryokudan executives became underworld quasi-capitalists, investing the capital obtained from criminal and anti-social activities. Although the money is made from criminal and anti-social activities, it is managed in accordance with current civil and commercial law and in such a way that the business takes the form of a legal business venture. Alternatively, the Bouryokudan at least endeavor to form apparently legal business ventures.
In 1985, when the Bouryokudan were increasingly engaging in such business activities, the Japanese government abruptly adopted a policy of capital relaxation. This not only accelerated the increase in the volume of Bouryokudan investment capital but also invited the worst-case scenario of underworld money mixing with the surplus capital generated by the governments low-interest policy. This phenomenon may be called a "Mafia economy."
Accordingly, the profit-generation typical to Stage Two was accelerated during the Stage Three capital realization policy that resulted from the Plaza Accord. This assisted Bouryokudan in expanding their activities from domestic into overseas markets.
The fact that the policy of drastically low interest rates (which saw the prime rate go down to 2.5%) remained in place for more than two years exacerbated the underworld conditions. As a consequence, the underworld environment changed from one of social problems to one of economic problems. During the time of the inflated economy and the process of its collapse, the influence of the underworld spread throughout the entire economy, causing serious problems such as forced land amalgamation or forced stock acquisition—ubiquitous occurrences in the past few years.
One reason the Bouryokudan have been able to infiltrate the economic system so well is the fact that the Japanese administrative system has become dysfunctional. For example, many complex legal restrictions attach to land in Japan, and many related governmental authorities have become involved in land development. Due to the time and effort required for formalities, it does not make economical sense to develop a golf course following formal legal procedures. The result is a demand for the back door short-cut offered by underworld intervention.
By way of explanation, take the example of the moving of the Tokyo Municipal Government Buildings to Shinjuku. In the wake of the move, the demand for office space in Shinjuku increased so sharply that low-rise apartment blocks became economically inefficient. It therefore became necessary to build high-rise buildings thereby vertically expanding the structure of the city.
These Bouryokudan-related problems would not occur if administration was able to respond promptly to consumer demand. But the complicated restrictions and complex individual land-rights make it difficult to provide quick administrative responses so that it is virtually impossible to comply with economic theory. This was the impetus for the back-door arrangement which resulted in the phenomenon of the Nishi-Shinjuku land amalgamation. Consequently, the Bouryokudan and organized crime problem should be regarded as a reflection of the health of the non-criminal world.
During Stage One, the Yakuza were a social phenomenon which offered such illegal recreation as prostitution and gambling. This evolved into an economic phenomenon during Stages Two and Three. In spite of these problems, Japanese society has failed to create a social system which provides a suitable treatment for those phenomena.
4. The Characteristics of Contemporary Organized Crime
The transitions in the underworld reviewed thus far may be summarized as follows. From Stage One to Stage Three, the underworld changed: (i) from individualistic crime to organized crime; (ii) from local organizations to national organizations (that is, from a unit structure to a hierarchical structure); (iii) from individually-targeted crime to corporate-targeted crime; and (iv) from criminal activity to quasi-legal activity.
Three differing viewpoints will be addressed below.
A. The Exploitation of Wealth from the Consumption Stage to the Production Stage
During Stage One, the scope of Yakuza activity extended only to distributed wealth; the scope of the activities largely comprised ordinary citizens spending their wages at gambling and prostitution establishments. However, during Stage Two, the Yakuza began to exploit the stage before the distribution of wealth. For example, they took advantage of the Shita-uke 12 system, utilizing it to create paper companies which were placed between contracting companies and sub-contractors in order to exploit the middle ground.
During the period of high economic growth in Stage Two, Japan succeeded in expanding its reproduction of wealth so that both the Gross National Product and the wealth of the nation were increased. The Bouryokudan were parasites on the distribution mechanism for this increased wealth, exploiting it one step before its distribution from companies to individuals, and leaking it to the underworld.
From the beginning, Japan’s post-war economy was successful at expanding its reproduction of wealth. However, the wealth distribution mechanism was extremely inefficient and inequitable. The event most symbolic of this uneven distribution was the concentration of wealth in land owners, caused by the sudden abnormal rise in land values.
As real estate was one of the main spheres of legitimate Bouryokudan business operations during Stage Two, they benefited immensely from the sudden leap in land prices. The emphasis of Bouryokudan activity therefore shifted from distributed wealth to the stage one step prior to distribution.
However, during Stage Three the money exploitation activities of the Bouryokudan extended from the wealth distribution stage to the expanded reproduction of wealth stage.
The taking over of a company’s management by Kigyou Shatei signified the advance of the Bouryokudan into the sphere of wealth production analogous to the advance of a disease into a healthy body. Organized crime infiltrated the consumption stage during Stage One, the consumption and distribution stages during Stage Two, and all stages of consumption, distribution, and production during Stage Three. The spreading of this inherent disease allowed the erosion of the entire social and economic structure.
B. From Ordinary Violence to Special Violence
"Ordinary violence" is basically criminal behavior. Legally, it is conduct which violates the provisions of our criminal law. Examples of laws covering such conduct are anti-prostitution laws, penal laws regarding violent conduct, and laws restricting the possession of weapons such as guns and swords. All of these fit into the above-mentioned category of "illegal business."
During Stage Two, activities based on "ordinary violence" have changed to become activities based on "special violence." "Special violence"13 is generally effected by exercising one’s rights. Some examples of special violence are Soukaiya, quasi-dowa, and quasi rightists. Soukaiya are corporate shareholders and, as such, exercise shareholder’s rights. Quasi-rightists claim the basic rights of freedom of association, freedom of thought and belief, and freedom of expression as the legal basis of their activities.
However, they claim these rights for different purposes than were originally intended by the law. This raises the issue of the theory of structural or fundamental rights; i.e., why a right is actually given. Due to the emergence of special violence, the underworld problem must be considered from the standpoint of an organizational abuse of rights.
C. From the Problems of Bouryokudan to the Problems of Non-Bouryokudan
As seen in the emergence of Kigyou Shatei, the Bouryokudan problem during Stage Three concerns not only Bouryokudan, but also non-Bouryokudan. Thus, if the authorities attempt to restrict the activities of these organizations by targeting one Bouryokudan in particular, they find that the offenders are actually non-Bouryokudan employed by and under the influence of the Bouryokudan. As a result, it is no longer important whether an offender actually belongs to a Bouryokudan. A paradox emerges insofar as the restriction of the Bouryokudan does not really lead to the restriction of Bouryokudan activity. Thus, it is important to determine how to deal with the problem of non-Bouryokudan employees, and how to regulate the sources of Bouryokudan income.
The question has arisen as to how the Kigyou Shatei should be dealt with under the current legal system. In other words, the question is really how to introduce a mechanism by which profit made by illegal means can be frozen so these funds can be confiscated by the National Treasury, or how to extend the law to regulate both the Bouryokudan and the general public.
5. The Expectations for the Bouryokudan Kiseihou—The Crime Syndicate Restriction Act
As seen above, the Bouryokudan are now rapidly moving their organized crime into the non-Bouryokudan world. Based on this fact, several results are expected from the recently enacted Crime Syndicate Restriction Act.
A legal system which regulates organized crime necessarily embraces two differing concepts. The first concept is exemplified by the Italian Mafia Restriction Act. This law, which regulates Mafia crime organizations, deems it a crime to even belong to a crime syndicate. In contrast, the conduct-regulating American RICO Act, does not consider whether the offender is actually a member of a crime syndicate and therefore also incorporates the general public.
In order to adopt the concept of regulating the organizations, the legislature must offer a theoretical explanation of why it is wrong to belong to such an organization. This directly conflicts with the issue of freedom of association. In order to avoid this problem it is necessary to adhere to the theory that it is wrong to engage in criminal conduct, yet not wrong to belong to a criminal organization. The RICO Act is based on this way of thinking. Under these circumstances, a new problem emerges: that as a formality this regulation "net" extends to the entire general public.
The Crime Syndicate Restriction Act of Japan has attempted to find the middle ground. That is, while it would be excessive for regulations aimed at restricting Bouryokudan activities to affect the general public, in the alternative, to allow the mere membership of a crime syndicate to constitute a crime would also prove harmful. In light of this, the new legislation has sought to partially regulate both the conduct and the organizations. By introducing a method for identifying particular Bouryokudan, the parties to which the legislation may apply are thus limited to that specific Bouryokudan. As far as the regulation of conduct is concerned, the regulations and penalties only apply to those Bouryokudan activities that need to be regulated. In this way, the applicability of the otherwise broad regulations has been narrowed in two steps.
However, current underworld activity has moved from the Bouryokudan of Stage Two to the organized crime of Stage Three, and its center has shifted from crime syndicate members to Kigyou Shatei outsiders.
The increasingly serious problems of today’s society ensue from the activities of the Kigyou Shatei, as opposed to the Yakuza-Gokudon of Stage One or the Bouryokudan of Stage Two. Restrictive legislation, albeit insufficient, was enacted to deal with the activities of Stages One and Two, yet legal provisions designed to cope with Stage Three activities have been slow to appear. For example, as evidenced by the name, the new Crime Syndicate Restriction Act focuses its restrictions on the underworld activity of Stage Two, excluding any regulation of Stage Three activities. So while the enactment of this new law is epoch-making as regulatory legislation (since previous legislation relied only on the physical force of the front-line authorities), its actual contents are quite meager.
The new legislation should be taken as only the first step in legislative regulation of Bouryokudan activity. In the future, to ensure the maximum efficacy in the application of the law it may be necessary to provide further regulation by introducing second and third tier legislation and amending of the current legislation.
During the process of implementing these future steps, several important factors must be considered. Firstly, Stage Three activities—namely the activities of the Kigyou Shatei—must be regulated. Secondly, the power of the National Treasury to freeze and confiscate illegal profits must be extended beyond drug related funds to include all other financial profits of organized crime. Thirdly, further consideration should be given to introducing special procedures for regulating the underworld which provide authorities with new investigative methods. These might include introducing a witness protection program, raising current criminal penalties, and creating new requisite elements for certain crimes.
As mentioned above, the prosperity of the underworld is a barometer of the health of the non-criminal world. Conversely, a malfunction of the non-criminal world generates underworld activity. As a result, the ultimate underworld counter-measure does not stop at simply maintaining regulatory legislation, but depends upon the smooth operation of the legal system.
At any rate, the essence of the underworld problem lies in the paradox of determining the extent to which fundamental human rights should be restricted in order to protect those same human rights for the honest general public. The problem of organized crime can, therefore, also be seen as an inherent problem with the Constitution.
Notes
1. Yomiuri Evening News, May 28, June 1, and June 2, 1991. back
2. Reported in various newspapers on July 23, 1991.back
3. Reported in various newspapers on March 2, 1991. back
4."Bouryokudan ni yoru futou na koui no boushitou ni kansuru houritsu," Law No. 76, 1991. back
5.A literary translation of gokudou is "villain," but the term actually connotes a more dignified discipline based on the notion of giri (duty/ obligation) and ninjou (humanity). back
6. Japan has since been under the U.S. defense umbrella, and therefore able to concentrate on economic development. back
7.This was a Government policy designed to dramatically increase personal income within a short period of time, through various economic stimulus initiated by the public sector. back
8. A scheme designed to lower interest rates allowing the world economy to prosper. This agreement also recognized that Japan should take a leading role in the world economy. back
9. Literally translated as "violence group". back
10. Acting pleasantly while subtly indicating an underlying threat. back
11. The system of payments by lower-ranking Yakuza to their superiors. back
12. The Japanese sub-contracting system where sub-contracting arrangements are made between affiliated companies. back
13. Violence conducted under the guise of exercising general rights given to the general public. back
(translation by Vicki L. Beyer)
Temple
University Japan