No. 35 — September 15, 2000

Feature Article

JAPAN'S LEGAL SYSTEM ON THE STAND

Jon Choy

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Summary

"Litigious" is not a word often used — by foreigners or by the Japanese themselves — to describe Japan's government, society or people. Adherence to a social hierarchy, respect for authority, a near-universal belief in a single set of social mores, desire to maintain outward harmony and subjugation of individual concerns to those of the group have guided interactions among the Japanese for centuries, reducing the number of public disputes and limiting the role of judicial proceedings in everyday life. Until recently, a legal complaint filed for any but the most serious matters was considered an embarrassment for the plaintiff, not the defendant. The Japanese often have decried the emphasis that Westerners — Americans in particular — place on legal frameworks and procedures for managing personal, commercial and government interactions.

Yet Japan is, of course, a country where the rule of law exists as part of the foundation of society and government. Almost every major U.S. law has a Japanese counterpart, a fact due only in part to the legacy of the American occupation of Japan after World War II. Compared with U.S. statutes, however, Japanese laws often are vague, leaving many important details to the discretion of the ministry or agency responsible for their implementation. This fuzzy aspect has allowed laws to be bent to novel uses, easing the need to legislate new rules and providing the flexibility to meet changing situations. Foreigners, however, often have made the opposite complaint: that Japan's laws and regulations are too numerous, detailed, restrictive and opaque. The Japanese legal code, they claim, provides domestic competitors and Japanese bureaucrats with many methods that can be used to exclude outsiders from markets or to nullify advantages.

Elements and procedures of Japan's judicial system that originally were intended to encourage out-of-court settlements and to impart flexibility have slowed the judicial process to a snail's pace in practice. While timeliness was not an issue in the past, it is now a top concern because the continuing internationalization of Japanese businesses and the Japanese economy, as well as the gradual movement of Japanese society toward greater diversity, complexity and individualism, have placed increased demands on the country's courts and legal community.

Although Japan often has tinkered with its laws in the past — including a milestone reworking of the Code of Civil Procedure in 1996 — politicians, bureaucrats and citizens now are debating numerous proposed changes to basic features of the legal environment. Progress likely will be halting and uneven, however, the ongoing discussions will provide an unusual window of opportunity for domestic and foreign parties alike to address the many shortcomings of Japan's legal system.

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Japan's Hybrid Legal And Judicial Systems

Japan's modern legal and judicial systems trace their roots back to 1232 when the Kamakura shogunate (1185-1333) created uniform guidelines the Goseibai Shikimoku (Formulary of Adjudications) for its samurai, or warrior vassals. Drawn from the laws and procedures of such other older institutions as the imperial and provincial governments, private estates and religious orders, the bukeho (warrior house law) was not a legal code in the modern sense but, rather, a compilation of the most common and important court disputes settled by the shogunate.

This compendium of precedents consisted mostly of civil cases and was used to teach the Kamakura samurai the broad outlines of substantive and procedural rules then in force. Supplemented by more than 700 tsuika (articles) over its lifetime, the Goseibai Shikimoku formed the core of Japan's legal system for the next 400 years. The key to the code's long life was its pragmatic approach, which was based on common sense, precedent and consensus rule.1

The next milestone in the system's legal evolution took place after feudal Japan was unified by the Tokugawa shogunate (1603-1867). Founder Ieyasu Tokugawa not only strengthened the centralization of military and fiscal power in the shogunate's hands, but also gradually replaced laws issued by regional warlords with a standardized code. Scholars worked on this task from 1613 to 1615, when Ieyasu's successor Hidetada Tokugawa promulgated the 13-article Buke Shohatto (Laws for Military Houses) and shortly thereafter, the Kinchu Narabi ni Kuge Shohatto (Laws Governing the Imperial Court and Nobility).2

In two stages (1631 and 1635), the third Tokugawa shogun, Iemitsu, expanded the Buke Shohatto to 19 articles, and ordered his daimyo to use these documents as models for drafting their own laws. In addition, Iemitsu revived and strengthened the Hyojosho (Judicial Council), a national tribunal convened during the Kamakura and Muromachi (1338-1573) shogunates to settle disputes that were too complex for local authorities to handle.3

The Tokugawa shogunate's final contribution to Japan's legal tradition was the 1742 Kujikata Osadamegaki (Official Provisions), a broad set of rules that was aimed, for the first time, at commoners and lesser samurai. Created during the administration of the eighth Edo shogun, Yoshimune Tokugawa (1716-1745), the Official Provisions had two parts: administrative procedures and civil rules (81 articles) and criminal laws and penalties (103 articles). For the first time, commoners residing in the domains of the shogun's direct retainers were subject to a codified set of laws. The influence of the Official Provisions spread as they were adopted by many other daimyo.4 Thus, from 1742 until the end of the Tokugawa era, three sets of legal codes covered Japanese society from top to bottom.

Besides a legacy of written codes and laws, Japan's feudal rulers handed down the basis for many of the Japanese attitudes about the legal system. One was the expectation that judicial officials would be of strong moral character and their decisions would be fair, strict and always focused on delivering justice. Another favored the flexible rules that gave judges the freedom to ignore the written letter of the law or precedents in order to make just decisions. A final legacy was the emphasis on settling disputes outside of court, either before a complaint was filed or before a final judgment was rendered. Arbitration was strongly encouraged at all times and even mandated in some situations.

With the end of the feudal shogunate and the inauguration of the modernizing Meiji restoration government, Japan's legal establishment began studying foreign judicial systems and legal codes with an eye toward modernizing its own system in the shortest possible time. Japanese legal experts quickly rejected Great Britain and the United States as models, reasoning that Japan lacked the liberal common-law tradition that underpinned these systems. At the start of the Meiji restoration, France's judiciary and Napoleonic code had the favor of Japanese legal scholars, who were intent on eradicating discrimination based on feudal principles and developing civil liberties and equality. They found the French concept that the law embodied justice appealing, and Japan's 1880 penal code was drafted with the help of a French legal scholar. However, the adoption in 1889 of the Meiji constitution — with its roots in German precedents — tipped the debate in favor of the Germanic thinking that laws were imposed from above by an absolute monarch who determined the parameters of justice. Tokyo adopted a civil code and court system based on the German model.

In the rush to modernize its economy and military, however, Japan's oligarchs did not look on the legal system as an end in itself. The rule of law was promoted only as long and as far as it helped Japan catch up with the West and defended the country against Western imperialism. Nevertheless, advocacy of civil liberties and human rights bloomed in Japan after World War I, a trend that worried nationalist and authoritarian groups in the army and the government. These groups moved to quash the libertarian trend, using their imperially delegated powers in 1929 to impose the Peace Preservation Law, which made it illegal for anyone to oppose the government or the private property system. Personal freedoms and rights were eroded steadily in the 1930s, as hypernationalistic factions rose to power and Japan focused all its effort on a building a military-industrial complex that could match any Western power.

Thus, when the U.S. occupation forces arrived in Japan after World War II, they found a legal system that was partly French and mainly German and had been tailored ruthlessly to the militarists' needs. Although some members of the occupation staff advocated scrapping the existing legal system and rebuilding from scratch — based, of course, on Anglo-American models — those in charge realized that was not practical. With the emphasis on purging Japan of the elements that had contributed to the rise of militant nationalism balanced by the need to maintain social and commercial order that would speed the reconstruction process, occupation authorities began pruning the undesirable parts of the Japanese legal system and grafting on new elements.

To prevent the recurrence of easily manipulated industrial combines, the Antimonopoly Law and the Fair Trade Commission were created. Japan's Commercial Code and Company Law were amended to reflect the American open-market model, and a Corporate Reorganization Law was introduced to further this emphasis. Of course, the greatest American contribution to Japan's postwar legal system was the drafting and adoption of the "Peace Constitution" of 1947. Besides firmly establishing the rule of law and the principles of civil liberties and human rights in Japan, the 1947 constitution set out the basic framework for a new unitary system of courts and vested all "judicial power in a new Supreme Court and in such inferior courts as are established by law." Although the Diet can change the organization of the court system below the Supreme Court by passing legislation, the constitution guarantees that the administration of the judiciary and supporting institutions is the sole responsibility of the highest bench.

At present, beneath the Supreme Court are eight high courts with six branches located in the eight principal geographic subdivisions of Japan, 50 district courts with 244 branches and an identical number of family courts and branches, and 575 summary courts distributed throughout the country. The summary courts are meant to be easily accessible to all citizens, thus their large number and wide dispersal. Summary courts accept criminal cases for minor offenses (as defined by a relatively light fine or sentence) and civil cases involving claims less than ¥900,000 ($8,180 at ¥110=$1.00). The maximum was raised in 1998 from ¥300,000 ($2,730). District courts are the first venue for civil suits above this threshold and for more serious criminal offenses — the two categories that form the bulk of cases in Japan. Family courts handle all cases involving domestic-relations disputes and juvenile crimes. Decisions by summary, district and family courts are appealed directly to the high courts and then to the Supreme Court.

Japan's legal system differs from the American model in several important respects:

  • There are no separate municipal, county, state or federal systems; all courts are part of a single framework under the control of the Supreme Court.
  • There are no jury trials in Japan; all decisions are rendered by judges.
  • Japan's chief justice is appointed by the emperor after being designated by the cabinet; the remaining 14 Supreme Court justices are appointed by the cabinet.
  • All cases before the Japanese Supreme Court are appeals. Unlike the U.S. Supreme Court, the highest court in Japan does not have original jurisdiction in any matter.
  • There are several types of Japanese legal professionals, from bengoshi (trial lawyers) at the pinnacle to shiho shoshi (judicial scriveners) and clerks at the base; the powers and responsibilities of each category are defined strictly, but often are bent in practice.
  • The Supreme Court selects all judges for inferior courts from the graduates of its Shiho Kenshujo (Legal Training and Research Institute).
  • Besides this institution, the Supreme Court operates a training institute for court clerks and a school for family court probation officers.
  • All judges, public prosecutors and bengoshi are graduates of the Shiho Kenshujo.

Four areas highlight the differences between the Japanese judicial system and its U.S. counterpart:

Legal Training - The Shiho Kenshujo plays a critical role in the development of Japan's legal professionals and therefore, is one focus of the reform debate. Experienced judges, public prosecutors and practicing lawyers serve as full- or part-time faculty. The original 24-month curriculum covered civil and criminal law and consisted of four months of general instruction in court procedure, trial practice and public prosecution. Students then spent four months on each of following assignments: as an apprentice in the civil and criminal sections of a district court, in the office of a public prosecutor and in a private legal practice. The final four months of the two-year program focused on integrating and distilling the 16 months of apprentice work and evening out the inevitable discrepancies in field experience.

Since all persons trained to file, defend and hear court cases must pass through the institute's doors, its annual class size — 500, until recently — limits the number of new prosecutors, trial lawyers and judges that enter the profession. According to the Ministry of Justice's latest figures, 17,700 trial lawyers, 2,200 judges and 1,300 prosecutors make up the core of Japan's legal establishment. In the past, the institute's exclusivity was considered by many to be a positive aspect of the Japanese system. It guaranteed the uniformity and quality of legal training, limited the system's capacity to process cases (discouraging the filing of frivolous suits) and helped keep trial lawyers' salaries up (by limiting the supply). Opinions about the institute's class size, however, have swung in the opposite direction as the demand for legal services has skyrocketed in recent years.

Court Procedures - The process of adjudication in Japan can be summarized as brief periods of activity separated by longer intervals of preparation and waiting. Each phase of the court proceeding — lodging the complaint, reviewing evidence, hearing testimony, interrogating the parties, rendering the decision and deciding the penalty — is spread over several relatively brief sessions before a judge, with several days or even weeks between these hearings. According to the Justice Ministry and Nichibenren (Japan Federation of Bar Associations), the minimum time needed to process a court case is 23 to 27 months, depending on the type of action. More often, cases drag on for years. In some instances, suits have outlived both the plaintiff and the defendant, continuing on as the lawyers attempt to protect the interests of the parties' estates.

As mentioned earlier, one reason that certain aspects of the Japanese court system are so unappealing is to encourage parties to settle their differences privately or through arbitration. Unlike a court case, which will produce a clear winner and loser, conciliation commissions often lead to compromises that provide solutions less harmful to the public reputation of the disputants. However, the process-lengthening mechanism also can be abused, especially by attorneys interested in prolonging proceedings and, thereby, fattening their fees. Such misuse is abetted both by the Japanese deference to authority and by the passive role usually assumed by clients — in civil suits, it is not unusual for the client rarely to see the judge or the inside of the courtroom. Besides its negative financial aspect, this phenomenon also has led people to view the judicial process as an exercise in esoteric debate rather than a real effort to find a just resolution.

Another important difference between the U.S. and the Japanese systems is the limited nature of discovery in Japan. Restrictions on lawyers' interrogations of the opposing side for information and evidence originally were intended to reduce the contentiousness of court cases but, instead, have reduced the likelihood that the complex circumstances of a growing number of cases will be fully understood. The limits on interaction between parties also has added to the popular perception that the courtroom is detached from real life.

Law Enforcement - Japanese police authorities have more freedom to enforce the law than their peers in this country. At the same time, Japanese citizens accused of or convicted of crimes have fewer rights and legal options than their American counterparts. Whereas the U.S. criminal justice system is accusatory — defendants are presumed innocent until proven guilty — the Japanese approach is almost presumptive — the accused are considered guilty until the court determines their innocence.

Japan's law enforcement practices reflect the nation's authoritarian history as well as the strong sense of social hierarchy and ingrained deference to authority among the Japanese. Police and prosecutors follow the tradition of developing overwhelming evidence of guilt before actually filing charges. Ordinary law enforcement authorities have strong powers to investigate matters before entering an indictment — a situation akin to the U.S. grand jury. Furthermore, Japanese police investigations are not subject to scrutiny by the public or other government agencies; the Japanese approach relies on the honesty and morality of police authorities instead of the system of checks and balances used in the United States.

The 1947 constitution provided new protections of the rights for the accused. Besides ensuring equality under the law for all persons and guaranteed access to the courts, the constitution bars the taking of life or liberty and the imposition of criminal penalties without due process. A person cannot be arrested or detained without adequate cause, a warrant, immediate notification of charges or legal counsel. The Japanese constitution also includes other provisions familiar to Americans, such as the right to a speedy trial and protection from double jeopardy.

It is surprising, therefore, that the accused have few practical recourses in Japan. Arresting officers do not inform a suspect of his or her Miranda rights; no such rules exist. In fact, the police often do not tell an arrested person the reason for detention. Police may hold an individual for questioning for weeks without filing charges, and this incarceration may be extended with a judge's permission. A person so confined has few legal options to exercise for release; the right of habeas corpus familiar to Americans does not exist in Japan. A detained person may be denied counsel both before charges are filed and during questioning. The police feel little obligation to inform the relatives of the suspect immediately after arresting him or her.

The Japanese system also restricts external contact with accused and convicted persons more severely than the American norm. The operation of prisons and the conduct of prison guards is not a matter for public review or discussion in Japan. Finally, Japanese authorities carry out the death penalty in secret; no announcement is made beforehand and no outside witnesses are allowed to attend the execution.

Judicial Independence and Authority - Like its U.S. counterpart, Japan's Supreme Court is the court of last resort, endowed by the constitution "with the power to determine the constitutionality of any law, order, regulation or official act." In fact, every court in Japan has the power to rule on constitutional issues, but few ever do. While the Japanese Supreme Court has defended the court system's monopoly on judicial power and has ruled a handful of times on constitutional issues, it also has acknowledged that the Diet is the "highest organ of state power" by virtue of its elected nature. In line with this doctrine of legislative supremacy, it is up to the Diet to address ambiguities by amending the constitution; a power that is indirectly wielded by the people through their ability to elect legislators.

Unlike its U.S. counterpart, the Japanese Supreme Court does not act as a constitutional court. According to its own interpretation of its charter articles, Japan's high court cannot rule on constitutional questions without a concrete dispute before it. While it is a highly unusual action for the U.S. Supreme Court to take, ruling in the abstract is not even a possibility for Japan's supreme judges.

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Changing Society And Legal Needs Stimulate Initial Reform Efforts

Until recently, most Japanese agreed that their laws and courts performed their intended functions efficiently and fully. The laws covered most civil disagreements and criminal activities and the judicial system was able to process its caseload, albeit slowly in most instances. With minor amendments and updates to administrative guidelines, the legal system kept pace with the nation's needs. The prolonged economic slowdown of the 1990s and an acceleration of the pace of change in Japanese social values and attitudes, however, destabilized the situation. Legal gaps and shortcomings increasingly became apparent, leading to the perception that incremental reform of the legal system was no longer sufficient.

Increasing crime was one factor. Linked to the economy's downturn, the frequency of all types of criminal acts rose in the 1990s. Japan still had one of the lowest crime rates per capita among advanced, industrialized societies, but from the standpoint of the average citizen, the scale and seriousness of crimes seemed to be escalating. This increase included some spectacular white-collar crimes — many related to the high-flying financial speculation of the late 1980's "bubble economy" — to the penetration of organized crime elements into a wider range of legitimate commerce.

Japan's bureaucrats had their reputations sullied by such debacles as the Ministry of Health And Welfare's complicity in the transmission of HIV (human immunodeficiency virus) to Japanese hemophiliacs (see JEI Report No. 11B, March 22, 1996), with members of this elite cadre being indicted for the first time in postwar history. Even the law enforcement establishment took several blows, including repercussions from mishandled investigations, cover-ups of errors and outright graft and corruption.

New types of crimes also began to appear that were so far outside existing laws that no amount of amendment would provide an adequate response. Stalking by sexual predators, abuse of privileged information and a whole new world of Internet-related wrongdoings made it clear that new laws were needed quickly.

An influx of immigrants and foreign residents in the late 1980s coupled with Japan's declining birthrate created a new focus on the legal rights of aliens and how Japanese law deals with this sensitive topic. Organized groups of foreign residents and Japanese citizens have been key motivating forces in this debate, particularly at the local level in Tokyo and Osaka. Focusing initially on ensuring fair treatment of foreigners by law enforcement officials and on preventing job discrimination, advocates have pushed on to loftier goals, such as opening public employment to resident aliens and even giving them the right to vote in local elections. This liberal approach has met resistance at the national level, and how far this trend will continue is not clear. Nevertheless, important examples and precedents that will affect Japan's social and legal interactions have been set.

Arguing that the country has little room — physically or socially — for foreigners, Japan long has controlled immigration rules. Given the almost universal agreement that the country faces a shortage of workers — not only because of the declining birth rate but also because increasingly affluent youth have lost interest in jobs that are boring, dirty or dangerous — allowing in more foreigners could help ameliorate any labor squeeze. Anecdotal evidence suggests that more liberal immigration laws could help relieve other problems related to Japan's low birthrate and aging population, such as making it easier for foreigners to marry Japanese, or to hold jobs as health-care workers. The extended time frame of these potential problems, however, makes immediate action unlikely.

Greater consideration for human rights is a broad trend in Japanese society that is beginning to have visible effects. Although gender equality is now the law in Japan, what impact it should have on Japanese employers remains a hot topic. The rights of the physically and mentally disabled, homosexuals, transgendered persons and other groups traditionally forced to the margins of Japanese society slowly are being discussed more often and openly than before, but such individuals remain outside of the mainstream.

The internationalization of the economy has been a driving force in the restructuring of Japanese businesses and the entry of foreign firms into Japan. The skyrocketing demand for legal services arises from several sources:

  • Increasing numbers of cross-border deals that require expertise in both Japanese and foreign law.
  • More Japanese corporations that realize their operations must comply with multiple national legal environments.
  • The gradually growing reach of national laws, such as U.S. and European antitrust and trade rules.
  • The requirement for new kinds of legal expertise in areas such as commercial disputes, bankruptcy, loan restructuring and securitization of assets in order to clean up the financial excesses of the late 1980s.
  • The influx of foreign direct investment in Japan that has created a new group of clients for Japanese and overseas lawyers in Japan.

In this faster-paced world, several aspects of Japan's legal and court system have shifted from being assets to liabilities. The lengthy court process can become a bottleneck to resolving issues in a timely fashion. Quick court action — such as an injunction or order — can mean the difference between saving a company or a business deal and watching it collapse. Even if all sides in a dispute agree, Japanese courts cannot always respond fast enough.

The limited supply of legal services is another bottleneck that has attracted negative comments from Japanese and foreigners. At the personal level, inhabitants of major metropolitan areas seeking a lawyer's advice often complain that it is difficult to make an appointment because the legal professionals are too busy. Just as the majority of Japan's population and major corporations are located in urban centers, so are most Japanese lawyers based in these areas. For those living far from Japan's metropolises, the problem is more severe: even finding a lawyer within a reasonable distance from home is not always possible. Nichibenren has a program to encourage bengoshi to hang their shingles in rural areas by subsidizing their initial office and living costs. Its "Sunflower Fund" experiment, however, is just getting off the ground.

Businesses, however, face the same problem: Japan has only a relatively few legal professionals who can handle commercial contracts, tax issues, patent matters and court suits. The upsurge in merger and acquisitions, the strenuous efforts of financial institutions and borrowers to deal with huge amounts of debts incurred during the go-go bubble economy and the widespread efforts of corporations to restructure have put a premium on the time and attention of Japanese legal experts. Advisers are warning clients first to search for a local lawyer before beginning to negotiate agreements. One way that large corporations have dealt with this shortage is to hire thousands of graduates of the law faculties of major universities. Although these individuals cannot appear in court, they possess the technical expertise to support internal company operations.

A permutation of this shortage is the even more limited number of lawyers in Japan who can offer advice on the laws of other countries. Although a handful of bengoshi have been admitted to overseas bar associations and thus are qualified to offer counsel on domestic and foreign laws, the obvious solution to this need is to allow foreign lawyers to operate in Japan. This idea has been the subject of intense negotiations between Tokyo and Washington, with limited progress being achieved from the American standpoint (see JEI Report No. 19B, May 15, 1998).

Another issue is the relatively steep cost of filing suit in Japan and high legal fees. Unlike the United States where a flat filing fee is levied regardless of the amounts of money involved in the case, Japanese courts require plaintiffs to pay a fixed fee plus a varying percentage of the case's value in advance. Thus, an individual who sues a company for millions of yen in damage must pay thousands of yen before the case begins. Not surprisingly, this practice has kept many disputes out of the court system.

Also unlike the American situation, Japanese lawyers do not take cases on a contingent fee basis. Japanese legal professionals usually have a set schedule of costs and fees from which they rarely deviate. Low-income and indigent citizens, therefore, find it unusually difficult to hire a benogshi in Japan. Nichibenren has programs to help the poor retain legal help, but given the general shortage of properly trained professionals in Japan, their impact is negligible.

Unhappiness with the legal machinery led to some significant changes in the 1990s. Important laws were overhauled and groundbreaking laws implemented. The debates over long-term issues, such as immigration laws, also intensified.

Product Liability Law - It was something of an embarrassment to Japan — the birthplace of such giant manufacturers of consumer goods as Sony Corp., Toyota Motor Corp. and NEC Corp. — that its legal systems provided no clear legal recourse to recover damages for consumers who had been harmed by a company's product.5 Capping two decades of debate, the Diet approved a Consumer Product Liability Law in June 1994, which went into effect the following July. As a statement of the Japanese polity's new attitude toward the rights of individuals vis-a-vis companies, the new law was a milestone. The plaintiff must prove a defect exists, that damage has been suffered and that the defect has caused the damage. The plaintiff need not show negligence or a link between negligence and the defect in order to prevail. In this case, the burden of proof is lighter in Japan than in the United States.

As an effective piece of legislation, however, the Consumer Product Liability Law remains mostly untested. Unfamiliarity with the statute has meant that consumers have filed just a handful of cases since it was implemented. Moreover, the law contains several defenses that can be claimed by manufacturers, as well as relatively weak means for forcing makers to divulge testing, repair and other product data that may be key to proving the existence of a defect.

Nevertheless, the 1994 law has spawned follow-up legislation. The Diet approved a Consumer Contract Law this spring, giving consumers the right to nullify deals signed on the basis of incomplete, incorrect or inappropriate explanations by the supplier. Beginning April 1, 2001, a consumer may cancel a contract if the promised benefits have not materialized within six months of signing. The new law also invalidates clauses of contracts that exempt suppliers from responsibility for damages or impose unreasonably high cancellation fees.

Code of Civil Procedure of 1996 - As for the judicial procedures, the 1996 overhaul of the Code of Civil Procedure was an important event. In effect since the start of 1998, the new code has four main thrusts:

  • Improving the process of correctly and quickly identifying the germane legal issues by establishing three new procedures: preparatory plenary hearing, proceedings prior to the first full plenary hearing and hearing by written statements or documents.
  • Expanding the production of testimony and evidence. Addressing the relative lack of discovery tools, the new code allows parties to submit written inquiries to each other and broadens the scope of orders to produce evidence in the possession of third parties.
  • Expediting small claims. If a suit involves ¥300,000 ($2,700) or less, it will be handled by a summary court under simplified and accelerated procedures.
  • Granting discretionary power to the Supreme Court to accept or reject appeals. Japan's top justices can refuse to hear an appeal if a case does not involve important issues of interpreting laws. It is not clear, however, how this determination is made.6

The general theme of these goals is to reduce the time needed to complete a civil lawsuit without sacrificing thoroughness. In fact, the first two goals should help judges and lawyers frame the issues more clearly and develop more cogent arguments and defenses.

The new code has yet to make a significant dent in the average duration of a court case in Japan. However, the changes in the Code of Civil Procedure set the model for recent overhauls of the bankruptcy law, where again, the emphasis is on speeding up the process and offering up-to-date solutions for common legal problems.7

Training and Research Institute Reforms - Programs like Nichibenren's Sunflower Fund may help bring legal services to sparsely populated areas of Japan, but do nothing to address the overall shortage of judges, lawyers and prosecutors in Japan. Increasing the number of persons admitted each year to the Shiho Kenshujo is the only real solution. The Justice Ministry indeed has been expanding the training institute's enrollment gradually since the mid-1990s. The most recent class, for example, is about 1,000 strong — double the historical number. MOJ plans to continue to enlarge class sizes, but has not yet set an upper limit. This issue remains hotly debated, however and many observers say that admissions should be increased immediately to 2,000, or even 3,000.

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A Full Docket

The controversy over how to increase Japan's supply of legal professionals, is just one topic in a wide-ranging debate. In July 1999, then-Prime Minister Keizo Obuchi gave the reform effort a helping hand when he created the Judicial Reform Council to study the issues and submit recommendations by the summer of 2001. Although their voices are influential, the council members are only a few of many actors in this drama.

 

Systemic Issues

Reformers want MOJ to deepen the pool of all types of legal professionals by easing eligibility requirements and providing other opportunities to join the profession to graduates of university legal programs who did not gain a coveted slot in the institute. Reformers also want the Justice Ministry to enlarge the ranks of the potential candidates for judgeships by allowing people with a wider range of backgrounds and experience to qualify.

These efforts have a second agenda as well: to broaden the range of viewpoints and backgrounds of legal professionals. Understandably, requiring that all judges, prosecutors and lawyers pass through the Shiho Kenshujo has a homogenizing effect on the legal community. Arguing that more varied experience is necessary for dealing with the growing complexity and diversity of Japanese society and commerce, reform advocates present a reasonable case for making room for this heterogeneity in the legal world.

The Judicial Reform Council has weighed in on some of these issues, suggesting that MOJ's institute should immediately increase its admissions to 3,000 students a year. Over the next 10 years, the council hopes that this and other measures — such as establishing a U.S.-style system of law schools — will expand the pool of judges, prosecutors and trial lawyers by 2.5-fold to around 50,000.

Between 1923 and 1943, Japan experimented with a limited form of jury trial. Unlike the U.S. approach, a Japanese jury was only used in such serious matters as murder trials. The role of the jury in the proceedings was limited to answering questions submitted by the judge as to whether or not a particular fact was proven to its satisfaction. Because its utility was so restricted, the jury system was used only rarely and eventually was dropped.

The American model for jury trials has been resurrected recently by those concerned that the Japanese judicial process has become too abstract and detached from real life. By involving ordinary citizens in the determination of guilt or innocence, jury-trial advocates hope to increase public awareness of the judicial process and its close connection to everyday life. This mechanism also is touted as a democratizing force for changing the court system, which has earned a reputation for being a closed world of legal elites. The introduction of untrained persons into the process will require that lawyers, prosecutors and judges make their points in plain and simple language, rather than the stilted formal procedures that currently typify court proceedings.

The debate over jury trials has become a political issue, with major opposition parties advocating their introduction, and the governing coalition of the Liberal Democratic Party, the New Komeito and the New Conservative Party studying the issue. The Judicial Reform Council is split on this subject, and whether its members will develop a consensus before it issues a final report is not clear.

Another major area of debate is how to respond to cases of police misbehavior. Although few in number, recently revealed instances involving mishandled investigations, incorrect arrests, negligently handled detainees, dereliction in duties, drug abuse or attempted cover-ups of mistakes have shaken the public's trust in this key institution of the legal system.

Appointed in May, the Council on the Reform of Police Systems has held at least two regional forums on this issue and has consulted with individuals of diverse viewpoints. In its initial report released in mid-July, the council blamed some of these problems on the closed nature of the National Police Agency, pointing out that even the NPA's parent body, the National Public Safety Commission, does not closely monitor its activities. The council recommended that the NPSC revamp and intensify its inspections of law enforcement operations and that police training programs be updated to reflect changes in Japanese society.8

While critics agree that the council's recommendations are a start, they urge a more thorough revamping of the NPA. In particular, they would like the agency to increase its transparency by creating citizen review panels and by forcing the agency to report its actions and policies in more detail. With the average citizen increasingly worried about crime, reform of the police system is likely to become a political battleground.

 

Criminal Issues

In recent months, the cabinet and the Diet have responded to the appearance of new types of crimes by introducing a number of new laws (see JEI Report No. 32B, August 20, 1999). One allows the police to tap phone lines with a judge's permission (passed August 1999, enacted August 2000), another makes it illegal to access a computer without authorization (passed June 1999, enacted early 2000) and a third makes stalking a crime (passed May 2000, to be implemented November 2000). The government also has tackled such sensitive topics as child pornography (May 1999) and truth-in-advertising for the sex industry (being drafted).

One unusually touchy issue concerns the growth of juvenile crime and, in particular, how to handle minors who commit heinous offenses. Japanese society has been shocked over the past several years by children who extort adult-sized sums of money from their classmates, commit grisly murders, or lethally attack parents, teachers or other adults who have crossed them. The average citizen and politician is at a loss to explain these acts and is unsure how the judicial system should respond. Under normal circumstances, such cases are the responsibility of the family courts, but neither that venue nor the juvenile penal code is well-prepared to deal with such severe offenses. The rise in violent juvenile crime is testing the standard Japanese philosophy that the criminal system should focus on rehabilitating offenders and should treat minors with special consideration.

Debate is raging about how to reform juvenile laws to respond to this situation, with many arguing for tougher sentences and provisions that in certain circumstances would allow prosecutors to charge underage offenders as adults. According to what seems to be a general consensus, at the very least, prison terms should be increased for major offenses. A bill that would implement these changes died in the lower house of the Diet when that body was dissolved for the June 2000 elections. Government leaders have promised to reintroduce the legislation. Social workers, however, counsel caution, worried that the rights of children and parents will get trampled in the rush to toughen the laws.

Domestic violence is another formerly taboo subject that has entered the mainstream debate. In the past, most people and the police considered violence in the home between related persons to be a private matter in which they had no business intervening. As a new acceptance of gender equality has taken root, however, this attitude is beginning to shift. In May, the Diet approved a new law covering child abuse, and in June, the 23rd special session of the U.N. General Assembly — "Women 2000: Gender Equality, Development and Peace for the Twenty-first Century" — reiterated the Beijing Declaration and Platform for Action adopted at the Fourth World Conference on Women in 1995 and called on members to combat violence against women in the home. Both developments have energized Japanese advocates of a domestic violence ordinance.

As is the case in the United States, the reluctance of Japanese police authorities to insert themselves into a household's affairs is matched by a reticence among victims of abuse to file a complaint and press charges. The Tokyo metropolitan government released a mid-1998 report on domestic violence, showing that 6.9 percent of the 1,183 women polled had experienced frequent physical abuse. Another 26.1 percent of the women surveyed said that they had been physically mistreated once or twice; more than half said reported psychological abuse from their husbands. However, only 15.6 percent of a smaller sample of 750 women said that they had discussed the abuse with another person, while 5.9 percent wanted to consult with someone but had not. On the other hand, 38.9 percent of those surveyed said they did not want to talk about it, and 39.6 percent refused to respond at all.9

Operators of women's shelters and support groups tried to make the subject an issue in the recent elections for the Diet's lower chamber. Several female candidates from all parts of the political spectrum came out in favor of a domestic violence law, but whether the issue resonates with their male colleagues or with the general voting public is not clear. Advocates promise to continue to push for legislation in the next regular Diet session.

 

Civil Issues

The ongoing restructuring of the Japanese economy and evolution of Japanese society has brought more attention to the legal system. With greater frequency, both individuals and businesses are taking their grievances to court rather than seeking mediation. A recent case, for example, involved 97 voters who sued their Diet representative for breaking a campaign promise, an unthinkable action in earlier times.10 The range of civil issues being discussed reaches from one end of the spectrum to the other, but a handful of issues is at the nucleus of debate.

Environmental Issues - The complexity of modern Japanese life and its intersection with the legal sphere are reflected in the broad range of cases that fall under this category. Increasingly concerned about their quality of life, in which the environment plays a major role, the Japanese are reassessing the balance between development and nature. Some cases are directly linked with human health and welfare, for example, those involving air and water pollution. Others focus on protecting animal species and habitats from the plans of progress-minded developers and bureaucrats.

Besides forcing an examination of philosophical matters, these cases have been an educational experience for individual Japanese and communities in how to use the power of the courts to fight government and big business, or simply to make their voices heard. As the Japanese become less concerned with preserving the appearance of outward harmony in relationships, the role of the courts in settling environmental disputes likely will expand.

Human Rights - A second area that underscores the increasing complexity and diversity of Japanese society, human rights issues are focusing attention on specific areas of the law. Activists have taken up a wide range of unpopular causes to highlight their underlying principles. Examples include defending the free-speech rights of Greenpeace International members, who in Japan generally are perceived as environmental extremists; helping foreigners from developing countries gain asylum or extend their residencies in Japan; and seeking anti-bias laws to protect homosexuals, ethnic minorities (especially Ainu and Koreans) and other discriminated-against groups.

Commercial Code - This extremely broad and complex issue is of paramount importance to domestic and foreign businesses. Despite its many amendments, Japan's current Commercial Code is basically the same set of rules that existed immediately after World War II. With the economy radically changed since then and currently on the brink of another major make-over, the upsurge of interest in overhauling these basic guidelines for businesses is understandable.

Drafting a new code has attracted intense scrutiny and activity from domestic and foreign businesses, which have major stakes in the new law. Both groups are interested in reducing the government's ability to interfere in private commercial transactions, but they have conflicting desires as well. Japanese and American companies are gearing up for a major lobbying effort, marshaling the support of their government officials to their causes. Tokyo would like to have a draft code ready for Diet consideration by next year. Given the many aspects of this issue, it is not clear if a consensus can be developed in such a short time. Japanese and foreign executives point out, however, that they cannot quicken the pace of their restructuring and innovation without a new code, maintaining the pressure for action. While the issues may seem abstract to the average Japanese and American voter, the new code will frame many of the future commercial disputes and interactions between Washington and Tokyo.

Cross-Border Litigation - The increasing internationalization of the Japanese economy has forced executives and politicians to take up this neglected issue. The key question is how to decide which nation's court should handle a complaint when the two parties are based in different countries. Worried that domestic companies will get the short end of the stick, Tokyo is interested in signing bilateral agreements with major trading partners to settle this matter. It also is considering allowing under certain conditions its citizens to sue foreign corporations with major operations in Japan.11

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Conclusion

Japan clearly is shedding old perceptions, stereotypes, behaviors and mores. As the process of reform and rethinking has accelerated under the prod of tough economic times, the country's laws and judicial system naturally have become part of the debate. Mutual understanding and shared values are no longer an adequate basis for managing disputes in Japan, causing a greater burden on judicial procedures and an increased demand for transparent laws. Japan's legal establishment has been slow to respond, but the momentum for changes undoubtedly has reached the critical level.

How Japan manages the debate on legal reform will be a test of its commitment to new thinking. Changes made behind closed doors by politicians and bureaucrats would show that the reality of reform does not yet match the rhetoric. On the other hand, if foreigners and nonmainstream domestic groups were to be given a chance to make real contributions to the reform process, the optimistic view that meaningful improvements were on the way might be justified. In all likelihood, progress will be hesitant and halting, as it will take time to develop a consensus on the many socially and politically sensitive topics covered in this debate.

Andrew Hiyashi and Jason Russell provided research assistance.

The views expressed in this report are those of the author
and do not necessarily represent those of the Japan Economic Institute

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Notes
aaa

1aa James Kanda, "Goseibai Shikimoku," Kondansha Encyclopedia of Japan, G-I (Tokyo: Kodansha Ltd., 1983), pp. 47-48. Return to Text

2aa Conrad Totman, "Buke Shohatto," Kondansha Encyclopedia of Japan, A-Conso, pp. 206-207. Return to Text

3aa Harold Bolitho, "Tokugawa Shogunate," Kondansha Encyclopedia of Japan, Temp-Z, p. 53. Return to Text

4aa "Kujikata Osadamegaki," Kondansha Encyclopedia of Japan, J-Libe, p. 303. Return to Text

5aa See Tadashi Saito, "Product Liability Reform In Japan," JEI Report No. 3A, January 21, 1994. Return to Text

6aa Takeshi Kojima, "Japanese Civil Procedure In Comparative Law Perspective," Kansas Law Review, XLVI (1998), p. 692. Return to Text

7aa See Arthur J. Alexander, "Managing Financial Distress In Japan's Business World," JEI Report No. 25A, July 2, 1999. Return to Text

8aa "Police Must Take Steps To Regain Public Trust," The Japan Times, July 14, 2000, p. 2. Return to Text

9aa Asako Ishibashi, "Battered Women Find Little Relief In Japan," The Nikkei Weekly, August 17, 1998, pp. 1 and 15. Return to Text

10aa "Court Dismisses Damages Suite Over Lawmaker's False Promise," The Japan Times, August 8, 2000, p. 1. Return to Text

11aa "Tokyo Wants To Set Rules On Lawsuits," The Nikkei Weekly, June 12, 2000, p. 5. Return to Text

The views expressed in this report are those of the author
and do not necessarily represent those of the Japan Economic Institute

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